_________________________________________________________________
AMERICOLD CORPORATION
and
UNITED STATES NATIONAL BANK OF OREGON
$27,500,000
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
_________________________________________________________________
June 19, 1995
TABLE OF CONTENTS
Page
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ARTICLE 1 - RECITALS, EXHIBITS, AND DEFINITIONS. . . . . . . . . . . . . . 2
1.1 RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.2 EXHIBITS . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.3 DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE 2 - AMOUNT AND TERMS OF CREDIT . . . . . . . . . . . . . . . . . . 12
2.1 LOANS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
2.2 MINIMUM AMOUNT OF EACH LOAN. . . . . . . . . . . . . . . . . . 12
2.3 NOTICE OF LOAN . . . . . . . . . . . . . . . . . . . . . . . . 12
2.4 DISBURSEMENT OF FUNDS. . . . . . . . . . . . . . . . . . . . . 12
2.5 NOTE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
2.6 CONVERSIONS. . . . . . . . . . . . . . . . . . . . . . . . . . .13
2.7 [SECTION OMITTED]. . . . . . . . . . . . . . . . . . . . . . . 14
2.8 INTEREST RATES, PAYMENT DATES. . . . . . . . . . . . . . . . . 14
2.9 INTEREST PERIODS . . . . . . . . . . . . . . . . . . . . . . . 15
2.10 INCREASED COSTS, ILLEGALITY, ETC.. . . . . . . . . . . . . . . 16
2.11 COMPENSATION . . . . . . . . . . . . . . . . . . . . . . . . . 17
2.12 VOLUNTARY REDUCTION OF COMMITMENTS . . . . . . . . . . . . . . 18
ARTICLE 3 - LETTERS OF CREDIT. . . . . . . . . . . . . . . . . . . . . . . 18
3.1 LETTERS OF CREDIT. . . . . . . . . . . . . . . . . . . . . . . 18
3.2 MINIMUM STATED AMOUNT. . . . . . . . . . . . . . . . . . . . . 19
3.3 LETTER OF CREDIT REQUESTS. . . . . . . . . . . . . . . . . . . 19
3.4 AGREEMENT TO REPAY LETTER OF CREDIT DRAWINGS . . . . . . . . . 19
3.5 INCREASED COSTS. . . . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE 4 - FEES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
4.1 FEES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE 5 - PAYMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
5.1 VOLUNTARY PREPAYMENTS. . . . . . . . . . . . . . . . . . . . . 21
5.2 METHOD AND PLACE OF PAYMENT. . . . . . . . . . . . . . . . . . 21
5.3 NET PAYMENTS . . . . . . . . . . . . . . . . . . . . . . . . . 21
ARTICLE 6 - CONDITIONS OF LENDING. . . . . . . . . . . . . . . . . . . . . 21
6.1 CONDITIONS PRECEDENT TO EFFECTIVENESS. . . . . . . . . . . . . 21
(a) EFFECTIVENESS OF PLAN OF REORGANIZATION. . . . . . . . . 22
(b) EXECUTION OF CREDIT DOCUMENTS. . . . . . . . . . . . . . 22
(c) NO DEFAULT; REPRESENTATIONS AND WARRANTIES1. . . . . . . 22
(d) OFFICER'S CERTIFICATE. . . . . . . . . . . . . . . . . . 22
(e) OPINIONS OF COUNSEL. . . . . . . . . . . . . . . . . . . 22
(f) CORPORATE PROCEEDINGS. . . . . . . . . . . . . . . . . . 22
(g) SECURITY DOCUMENTS; FILINGS. . . . . . . . . . . . . . . 22
(h) RECORD SEARCHES. . . . . . . . . . . . . . . . . . . . . 22
(i) ADVERSE CHANGE . . . . . . . . . . . . . . . . . . . . . 23
(j) DELIVERY OF DOCUMENTS. . . . . . . . . . . . . . . . . . 23
6.2 CONDITIONS PRECEDENT TO EACH LOAN AND LETTER OF
CREDIT . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
ARTICLE 7 - REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . 24
7.1 CORPORATE STATUS . . . . . . . . . . . . . . . . . . . . . . . 24
7.2 CORPORATE POWER AND AUTHORITY. . . . . . . . . . . . . . . . . 24
7.3 NO VIOLATION . . . . . . . . . . . . . . . . . . . . . . . . . 24
7.4 LITIGATION . . . . . . . . . . . . . . . . . . . . . . . . . . 25
7.5 FINANCIAL STATEMENTS; FINANCIAL CONDITION; ETC.. . . . . . . . 25
7.6 USE OF PROCEEDS; MARGIN REGULATIONS. . . . . . . . . . . . . . 25
7.7 GOVERNMENTAL APPROVALS . . . . . . . . . . . . . . . . . . . . 26
7.8 SECURITY INTERESTS . . . . . . . . . . . . . . . . . . . . . . 26
7.9 TAX RETURNS AND PAYMENTS . . . . . . . . . . . . . . . . . . . 26
7.10 COMPLIANCE WITH ERISA. . . . . . . . . . . . . . . . . . . . . 26
7.11 INVESTMENT COMPANY ACT . . . . . . . . . . . . . . . . . . . . 27
7.12 TRUE AND COMPLETE DISCLOSURE . . . . . . . . . . . . . . . . . 27
7.13 SUBSIDIARY . . . . . . . . . . . . . . . . . . . . . . . . . . 27
7.14 PATENTS, LICENSES, FRANCHISES AND FORMULAS . . . . . . . . . . 27
7.15 LABOR RELATIONS. . . . . . . . . . . . . . . . . . . . . . . . 28
ARTICLE 8 - AFFIRMATIVE COVENANTS. . . . . . . . . . . . . . . . . . . . . 28
8.1 INFORMATION COVENANTS. . . . . . . . . . . . . . . . . . . . . 28
(a) QUARTERLY REPORTS. . . . . . . . . . . . . . . . . . . . 28
(b) ANNUAL REPORTS . . . . . . . . . . . . . . . . . . . . . 29
(c) MANAGEMENT LETTERS . . . . . . . . . . . . . . . . . . . 29
(d) BUDGETS AND INTERIM FINANCIAL INFORMATION. . . . . . . . 29
(e) OFFICER'S CERTIFICATES . . . . . . . . . . . . . . . . . 29
(f) NOTICE OF DEFAULT OR LITIGATION. . . . . . . . . . . . . 30
(g) OTHER REPORTS AND FILINGS. . . . . . . . . . . . . . . . 30
(h) MONTHLY REPORTS. . . . . . . . . . . . . . . . . . . . . 30
(i) BORROWING CERTIFICATE. . . . . . . . . . . . . . . . . . 30
(j) OTHER INFORMATION. . . . . . . . . . . . . . . . . . . . 30
8.2 BOOKS, RECORDS, AND INSPECTIONS; COLLATERAL
AUDITS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
8.3 MAINTENANCE OF PROPERTY, INSURANCE . . . . . . . . . . . . . . 31
8.4 TAXES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
8.5 CORPORATE FRANCHISES . . . . . . . . . . . . . . . . . . . . . 31
8.6 COMPLIANCE WITH STATUTES, ETC. . . . . . . . . . . . . . . . . 31
8.7 ERISA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
8.8 PERFORMANCE OF OBLIGATIONS . . . . . . . . . . . . . . . . . . 32
8.9 FURTHER ASSURANCES . . . . . . . . . . . . . . . . . . . . . . 32
8.10 FINANCIAL COVENANTS FOR ASC. . . . . . . . . . . . . . . . . . 33
8.11 FACILITY RESTING REQUIREMENTS. . . . . . . . . . . . . . . . . 33
8.12 MORTGAGE . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
ARTICLE 9 - NEGATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . . 33
9.1 [SECTION OMITTED.] . . . . . . . . . . . . . . . . . . . . . . 34
9.2 CONSOLIDATION, MERGER, SALE OF ASSETS, ETC.. . . . . . . . . . 34
9.3 LIMITATION ON DIVIDENDS AND VOLUNTARY PAYMENTS . . . . . . . . 34
9.4 [SECTION OMITTED.] . . . . . . . . . . . . . . . . . . . . . . 34
9.5 [SECTION OMITTED.] . . . . . . . . . . . . . . . . . . . . . . 34
9.6 [SECTION OMITTED.] . . . . . . . . . . . . . . . . . . . . . . 34
9.7 TRANSACTIONS WITH AFFILIATES . . . . . . . . . . . . . . . . . 34
9.8 [SECTION OMITTED.] . . . . . . . . . . . . . . . . . . . . . . 35
9.9 AVAILABLE CASH FLOW TO PRO FORMA DEBT SERVICE
RATIO. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
9.10 [SECTION OMITTED.] . . . . . . . . . . . . . . . . . . . . . . 35
9.11 SENIOR DEBT TO NET WORTH RATIO . . . . . . . . . . . . . . . . 35
9.12 [SECTION OMITTED.] . . . . . . . . . . . . . . . . . . . . . . 35
9.13 MODIFICATIONS OF INDEBTEDNESS AND CERTAIN OTHER
AGREEMENTS, ETC. . . . . . . . . . . . . . . . . . . . . . . . 35
9.14 CONDUCT OF BUSINESS. . . . . . . . . . . . . . . . . . . . . . 36
ARTICLE 10 - EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . . . . . 36
10.1 PAYMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
10.2 REPRESENTATIONS, ETC.. . . . . . . . . . . . . . . . . . . . . 36
10.3 COVENANTS. . . . . . . . . . . . . . . . . . . . . . . . . . . 36
10.4 DEFAULT UNDER OTHER AGREEMENTS . . . . . . . . . . . . . . . . 36
10.5 BANKRUPTCY, ETC. . . . . . . . . . . . . . . . . . . . . . . . 37
10.6 ERISA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
10.7 MORTGAGE AND SECURITY AGREEMENT. . . . . . . . . . . . . . . . 38
10.8 JUDGMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . .38
10.9 CHANGE OF CONTROL. . . . . . . . . . . . . . . . . . . . . . . .38
ARTICLE 11 - [SECTION OMITTED] . . . . . . . . . . . . . . . . . . . . . . 39
ARTICLE 12 - MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . 39
12.1 PAYMENT OF EXPENSES, ETC. . . . . . . . . . . . . . . . . . . 39
12.2 RIGHT OF SETOFF . . . . . . . . . . . . . . . . . . . . . . . 39
12.3 NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
12.4 BENEFIT OF AGREEMENT. . . . . . . . . . . . . . . . . . . . . 40
12.5 NO WAIVER; REMEDIES CUMULATIVE. . . . . . . . . . . . . . . . 40
12.6 [SECTION OMITTED.]. . . . . . . . . . . . . . . . . . . . . . 41
12.7 CALCULATIONS; COMPUTATIONS. . . . . . . . . . . . . . . . . . 41
12.8 GOVERNING LAW; SUBMISSION TO JURISDICTION;
ARBITRATION . . . . . . . . . . . . . . . . . . . . . . . . . 41
12.9 COUNTERPARTS. . . . . . . . . . . . . . . . . . . . . . . . . 42
12.10 HEADINGS DESCRIPTIVE. . . . . . . . . . . . . . . . . . . . . 42
12.11 AMENDMENT OR WAIVER . . . . . . . . . . . . . . . . . . . . . 42
12.12 SURVIVAL. . . . . . . . . . . . . . . . . . . . . . . . . . . 42
12.13 AMENDMENT AND RESTATEMENT . . . . . . . . . . . . . . . . . . 42
12.14 DISCLOSURE. . . . . . . . . . . . . . . . . . . . . . . . . . 43
EXHIBITS
Exhibit A - Replacement Promissory Note
Exhibit B - Not Used
Exhibit C - Borrowing Certificate
Exhibit D - Permitted Filings and Liens
Exhibit E - Indenture Provisions
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF: June 19, 1995
BETWEEN: AMERICOLD CORPORATION, an Oregon corporation
("Americold") whose address is 7007 SW Cardinal
Lane, Suite 135, Portland, Oregon 97224
AND: UNITED STATES NATIONAL BANK OF OREGON, a national
banking association ("U.S. Bank"), whose address
is National Corporate Banking (PL-4), P.O.
Box 4412, Portland, Oregon 97208
R E C I T A L S
A. Americold is engaged directly in the business of
operating refrigerated storage facilities, together with trans-
portation and distribution services, and a rock quarry.
Americold has one active, wholly owned subsidiary, Americold
Services Corporation, that is engaged in the business of
operating refrigerated storage facilities.
B. Americold and U.S. Bank, as agent for itself and
other banks, entered into a credit agreement dated as of
April 30, 1987 (the "Prior Credit Agreement"), pursuant to which
the banks agreed to provide an $85,000,000 credit facility to
Americold upon the terms and conditions contained therein. In
connection with the Prior Credit Agreement, U.S. Bank and
Americold executed a security agreement dated as of July 2, 1987,
and filed certain financing statements. For the purpose of
amending and restating the Prior Credit Agreement, U.S. Bank and
Americold executed a Credit Agreement dated February 3, 1993,
which in turn was amended by a First Amendment to Credit
Agreement dated October 1, 1993 (the "First Amended and Restated
Credit Agreement").
C. Americold and U.S. Bank desire to amend and
restate the First Amended and Restated Credit Agreement in order
to reflect the changes made in the First Amendment to Credit
Agreement dated October 1, 1993, extend the maturity of the
credit facility, adjust certain covenants, make provision for
certain mortgages, and accomplish certain other changes. The
parties intend that the previously granted security interests
will continue to secure Americold's obligations set forth in this
Agreement.
D. Americold is offering $115 million in principal
amount of new 15% Senior Subordinated Debentures due 2007. Such
new debentures are being offered through a pre-packaged plan of
reorganization in exchange for Americold's outstanding 11% Senior
Subordinated Debentures due 1997.
NOW, THEREFORE, for valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, it is
agreed:
ARTICLE 1
RECITALS, EXHIBITS, AND DEFINITIONS
1.1 RECITALS. The foregoing recitals are incorporated
into this Agreement by this reference.
1.2 EXHIBITS. The exhibits referred to in, and attached
to, this Agreement are incorporated herein by this reference and
are identified below:
Exhibit A Replacement Promissory Note
Exhibit B Not Used
Exhibit C Borrowing Certificate
Exhibit D Permitted Filings and Liens
Exhibit E Indenture Provisions
1.3 DEFINITIONS. As used herein, the following terms will
have the following meanings:
"ADA" will mean the Americans with Disabilities Act of
1990.
"ADJUSTED CONSOLIDATED INTEREST EXPENSE" means, for
any period, the total interest expense of Americold and its
Subsidiaries, including (i) interest expense attributable to
capital leases, (ii) amortization of debt discount and debt
issuance cost, (iii) capitalized interest, (iv) non-cash interest
payments, (v) commissions, discounts and other fees and charges
owed with respect to letters of credit and bankers' acceptance
financing, (vi) net costs under Interest Rate Protection
Agreements (including amortization of fees), (vii) preferred
stock dividends (other than dividends payable solely in kind) in
respect of all preferred stock held by persons other than
Americold or a Subsidiary, (viii) interest incurred in connection
with investments in discontinued operations and (ix) interest
actually paid by Americold or any of its Subsidiaries under any
guarantee of Indebtedness or any other obligation of any other
person.
"ADJUSTED CONSOLIDATED NET INCOME" means, for any
period, the net income (or net loss) of Americold and its
Subsidiaries determined on a consolidated basis in accordance
with generally accepted accounting principles; provided, however,
that there shall not be included in such Adjusted Consolidated
Net Income:
(i) any net income of any person if such
person is not a Subsidiary, except that (A) Americold's
or any Subsidiary's equity in the net income of any
such person for such period shall be included in such
Adjusted Consolidated Net Income up to the aggregate
amount of cash actually distributed by such person
during such period to Americold or a Subsidiary as a
dividend or other distribution (subject, in the case of
a dividend or other distribution to a Subsidiary, to
the limitations contained in clause (iii) below) and
(B) Americold's or any Subsidiary's equity in a net
loss of any such person for such period shall be
included in determining such Adjusted Consolidated Net
Income;
(ii) any net income of any person acquired
by Americold or a Subsidiary in a pooling of interests
transaction for any period prior to the date of such
acquisition;
(iii) any net income of any Subsidiary if
such Subsidiary is subject to restrictions, directly or
indirectly, on the payment of dividends or the making
of distributions by such Subsidiary, directly or
indirectly, to Americold, except that (A) Americold's
equity in the net income of any such Subsidiary for
such period shall be included in such Adjusted
Consolidated Net Income up to the aggregate amount of
cash actually distributed by such Subsidiary during
such period to Americold or another Subsidiary as a
dividend or other distribution (subject, in the case of
a dividend or other distribution to another Subsidiary,
to the limitation contained in this clause) and (B)
Americold's equity in a net loss of any such Subsidiary
for such period shall be included in determining such
Adjusted Consolidated Net Income;
(iv) any gain or loss realized upon the sale
or other disposition of any property, plant or
equipment of Americold or its Subsidiaries (including
pursuant to any sale-and-leaseback arrangement),
provided, however, that the exclusion from Adjusted
Consolidated Net Income of gains described in this
clause (iv) shall not apply to deferred gains resulting
from sale-and-leaseback arrangements to the extent that
there is an offsetting increase in depreciation expense
resulting from the recapitalization of the related
property, plant or equipment which is not sold or
otherwise disposed of in the ordinary course of
business and any gain or loss realized upon the sale or
other disposition of any Capital Stock of any person;
(v) the cumulative effect of a change in
accounting principles, including the cumulative effect
of the implementation of SFAS 106 by Americold with
respect to services rendered by employees in periods
prior to its implementation, but excluding any effects
of such implementation with respect to services
rendered in periods following such implementation, and
excluding any one-time or cumulative charges associated
with the implementation of SFAS 109;
(vi) the cash effect of the rejection of any
leases and executory contracts pursuant to the Plan of
Reorganization; and
(vii) the cash effect of Americold's
incurring costs (including but not limited to
professional fees) in connection with the Plan of
Reorganization in excess of $5,750,000.
"ADJUSTED EBITDA" means, for any period, Adjusted
Consolidated Net Income plus (to the extent deducted in
calculating Adjusted Consolidated Net Income) Adjusted
Consolidated Interest Expense, income taxes, depreciation
expenses, amortization expense, non-cash write-offs of deferred
financing costs and non-cash deductions for contributions to the
ESOP (but without giving effect to any extraordinary gain or
loss) for such period.
"AFFILIATE" will mean, with respect to any Person,
(i) any other Person which, directly or indirectly, is in control
of, is controlled by or is under common control with such speci-
fied Person or (ii) any other Person who is a director, executive
officer, or general partner (a) of such specified Person, (b) of
any Subsidiary of such specified Person, or (c) of any Person
described in clause (i) above. For purposes of this definition,
control of a Person means the power, direct or indirect, to
direct or cause the direction of the management and policies of
such Person, whether by contract or otherwise; and the terms
"control" and "controlled" have meanings correlative to the
foregoing; PROVIDED, HOWEVER, that a Person shall not be deemed
to be an Affiliate of another Person solely as a result of a
warehouse management contract entered into between such Persons
in the ordinary course of business.
"AGREEMENT" will mean this Second Amended and Restated
Credit Agreement as the same may hereafter be modified,
supplemented, amended, or restated.
"AMERICOLD" will have the meaning set forth in the
recitals.
"ASC" will mean Americold Services Corporation, a
Delaware corporation and a wholly owned subsidiary of Americold.
"AVAILABLE CASH FLOW" for the most recent four-quarter
period ended prior to the date on which a determination is being
made, shall mean Adjusted EBITDA minus (i) cash income taxes paid
or payable during such period and (ii) the amount of capital
expenditures (other than any non-cash capital expenditures and
expenditures for the acquisition of assets or property using net
proceeds of the First Mortgage Bonds, Series B, Due 2005) of
Americold and its Subsidiaries during such period.
"BANKRUPTCY CODE" will have the meaning provided in
Section 10.5.
"BORROWING BASE" will mean (a) 85 percent of Eligible
Accounts plus (b) 70 percent of the value of each Mortgaged
Property as determined by U. S. Bank in its reasonable
discretion, based upon a current MAI appraisal of the Mortgaged
Property prepared by an MAI appraiser selected by U. S. Bank and
prepared in accordance with applicable rules and regulations
under the Financial Institutions Reform, Recovery, and
Enforcement Act of 1989.
"BORROWING CERTIFICATE" will mean a certificate in the
form attached as Exhibit C with all informational spaces thereon
completed and bearing the original manual signature of
Americold's Chief Financial Officer, Treasurer, or other officer
or employee authorized by Americold's President, Chief Executive
Officer, or Vice President, to sign such certificate.
"BUSINESS DAY" will mean (a) for all purposes other
than as covered by clause (b) below, any day excluding Saturday,
Sunday, and any day that will be a legal holiday in the City of
Portland, Oregon, or a day on which banking institutions are
authorized by law or other government actions to close and
(b) with respect to all notices and determinations in connection
with, and payments of principal and interest on, Eurodollar
Loans, any day that is a Business Day described in clause (a) and
that is also a day for trading by and between banks in the New
York interbank eurodollar market.
"CLOSING DATE" will mean the date on which the initial
Loan(s) were made under the Credit Agreement.
"CODE" will mean the Internal Revenue Code of 1986, as
amended, or any successor thereto.
"COLLATERAL" will mean the assets of Americold and its
Subsidiaries subject to the Liens created by the Security
Agreement and the Mortgage.
"COMMITMENT" will mean $27,500,000, as reduced
pursuant to Section 2.12.
"CONSOLIDATED INDEBTEDNESS" will mean the Indebtedness
of Americold and its Subsidiaries, consolidated in accordance
with generally accepted accounting principles.
"CREDIT DOCUMENTS" will mean this Agreement, the Note,
the Mortgage, and the Security Agreement, as each may be
modified, supplemented, amended, or restated from time to time.
"DEFAULT" will mean any event, act, or condition that
with notice or lapse of time, or both, would constitute an Event
of Default.
"DRAWING" will have the meaning provided in
Section 3.4(a).
"EBITDA" for any period will mean the consolidated net
income of Americold and its Subsidiaries, before interest
expense, income taxes, depreciation, amortization, operating
lease and rental expense, and noncash ESOP contributions, and
without giving effect to gains from sales of assets (other than
sales of inventory in the ordinary course of business), for such
period (taken as one accounting period).
"EFFECTIVE DATE" means the date when the conditions
set forth in Section 6.1 have been satisfied.
"ELIGIBLE ACCOUNTS" will mean each and every account
(as defined in the Oregon Uniform Commercial Code) of Americold
and its Subsidiaries except those (a) under which payment is not
received within 90 days after date of invoice, (b) as to which
the account debtor has asserted or has cause to assert a right of
return, offset, deduction, credit, defense, or counterclaim of
any nature whatsoever, (c) which are owed by an account debtor
who is an Affiliate or employee of Americold or who does not meet
reasonable credit standards approved by U.S. Bank, (d) which are
not enforceable by judicial proceedings within the United States
unless supported by a letter of credit in form reasonably
acceptable to U.S. Bank issued by a financial institution
acceptable to U.S. Bank, or is otherwise acceptable, by guaranty
or otherwise, to U.S. Bank, or (e) which are service charges,
cash sales, COD billings, billings for retainage, or so-called
"progress billings." Accounts will not be deemed Eligible
Accounts if more than 25 percent of an account debtor's account
is unpaid for more than 90 days past the invoice date or if U.S.
Bank in its reasonable judgment determines that such account
debtor's account is not an Eligible Account. At the discretion
of U.S. Bank (but with notice to Americold of U.S. Bank's
determination), accounts for any single debtor other than H.J.
Heinz Company and any of its subsidiaries may be excluded to the
extent they exceed either $1,000,000 or 10 percent of total
Eligible Accounts.
"ERISA" will mean the Employee Retirement Income
Security Act of 1974, as amended from time to time. 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" will mean any person (as defined in
Section 3(9) of ERISA) (including each trade or business (whether
or not incorporated)) which together with Americold or any
Subsidiary would be deemed to be a "single employer" or a member
of the same "controlled group" of "contributing sponsors" within
the meaning of Section 4001 of ERISA.
"ESOP" will mean an unleveraged employee stock owner-
ship plan established by Americold designed to invest primarily
in Americold's capital stock.
"EURODOLLAR LOAN" will mean any Loan bearing interest
at the rates provided in Section 2.8(b).
"EURODOLLAR RATE" will mean (a) the offered quotation
by first-class banks in the interbank eurodollar market to U.S.
Bank for U.S. dollar deposits of amounts in immediately available
funds comparable to the outstanding principal amount of the
Eurodollar Loan with maturities comparable to the Interest Period
applicable to such Eurodollar Loan as of 10 a.m. (London time) on
the date which is two Business Days prior to the commencement of
such Interest Period, divided (and rounded off to the nearest
1/100 of 1 percent) by (b) a percentage equal to 100 percent
minus the then stated maximum rate of all reserve requirements
(including without limitation any marginal, emergency, supple-
mental, special or other reserves required by applicable law)
applicable to U.S. Bank in respect of eurocurrency funding or
liabilities.
"EVENT OF DEFAULT" will have the meaning provided in
Article 10.
"FIRST MORTGAGE BONDS" will mean the mortgage bonds
issued under a certain Amended and Restated Indenture dated as of
March 9, 1993, between Americold and Shawmut Bank Connecticut,
National Association, as trustee, as amended, and shall include
both Series A and B Bonds provided that no amendment shall impair
the Collateral granted pursuant to the Security Agreement.
"FIXED CHARGES" for any period means, with respect to
Americold and its Subsidiaries, (a) the consolidated interest
expense (excluding consolidated interest expense attributable to
original issue discount amortization) of Americold and its
Subsidiaries for such period (calculated without regard to any
limitation on the payment thereof); (b) all obligations with
respect to operating leases of any property (whether real,
personal, or mixed) which is not a capital lease, net of any rent
received with respect to such operating leases; (c) rental
payments with respect to capital leases which reduce the
obligations with respect to capital leases properly classified as
liabilities on the consolidated balance sheet of Americold and
its Subsidiaries in conformity with generally accepted accounting
principles; (d) cash taxes payable on consolidated net income for
such period; and (e) the principal payments on all Indebtedness
of Americold and its Subsidiaries which by its terms or by the
terms of any instrument or agreement relating thereto matures
more than one year from, or is directly renewable or extendable
at the option of the debtor to a date more than one year
(including an option of the debtor under a revolving credit or
similar agreement obligating the lender or lenders to extend
credit over a period of one year or more) from the date of the
creation thereof, but (f) excluding Indebtedness incurred
hereunder.
"INDEBTEDNESS" of any Person will mean, without
duplication, (a) all indebtedness of such Person for borrowed
money or for the deferred purchase price of property or services;
(b) except to the extent supporting Indebtedness of such Person
(but no other indebtedness) of the type described in clause (a)
above, the face amount of all letters of credit issued for the
account of such Person and, without duplication, all drafts drawn
thereunder; (c) all liabilities secured by any Lien on any
property owned by such Person, whether or not such indebtedness
has been assumed; (d) the total amounts required to be
capitalized under leases; (e) all contingent obligations of such
Person; and (f) unfunded pension liability carried on the
financial statements as of the Closing Date.
"INTEREST PERIOD" will have the meaning provided in
Section 2.9.
"LETTER OF CREDIT" will mean each Letter of Credit
issued pursuant to Section 3.1(a).
"LETTER(S) OF CREDIT OUTSTANDING" will mean the sum of
(a) the aggregate Stated Amount of all outstanding Letters of
Credit plus (b) the aggregate principal amount of all Unpaid
Drawings.
"LIEN" will mean any mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or
other), or preference, priority, or other security agreement of
any kind or nature whatsoever (including, without limitation, any
conditional sale or other title retention agreement and any
financing lease having substantially the same effect as any of
the foregoing).
"LOAN" will have the meaning provided in Section 2.1.
"MARGIN STOCK" will have the meaning provided such
term in Regulation U of the Board of Governors of the Federal
Reserve System.
"MORTGAGE" will mean each of the mortgages or deeds of
trust on a Mortgaged Property in a form satisfactory to U.S. Bank
and Americold (which mortgages or deeds of trust will include ADA
and environmental indemnity provisions and will be accompanied by
standard bank forms of environmental and ADA questionnaires and
indemnity agreements), granted to U.S. Bank by Americold pursuant
to Section 8.12.
"MORTGAGED PROPERTY" will mean a property acceptable
to U.S. Bank which becomes subject to a Mortgage.
"NET CASH" of Americold and its Subsidiaries on a
consolidated basis, as of any date, shall mean the amount shown
on the consolidated balance sheet of Americold and its
Subsidiaries as cash as of such date (but not including cash held
in accounts or deposits that are subject to any restriction which
precludes the use of such cash for payment of Adjusted
Consolidated Interest Expense and principal due on Americold's
Indebtedness), computed in accordance with generally accepted
accounting principles, minus the amount of Obligations
outstanding on such date under this Agreement (or any Obligations
issued in any refinancing, refunding, replacement, extension or
restructuring thereof), other than any Obligations representing
undrawn amounts under Letters of Credit (or any Obligations
issued in any refinancing, refunding, replacement, extension or
restructuring thereof) not in excess of $10,000,000 in the
aggregate; provided, however, that Net Cash shall not be less
than zero.
"NET WORTH" of Americold will mean at any time the sum
of (a) stockholder's equity plus (b) Subordinated Debt.
"NOTE" will have the meaning provided in
Section 2.5(a)
"NOTICE OF LOAN" will have the meaning provided in
Section 2.3.
"NOTICE OF CONVERSION" will have the meaning provided
in Section 2.6.
"OBLIGATIONS" will mean all amounts owing to U.S. Bank
pursuant to the Credit Documents.
"OFFICE" will mean the office of U.S. Bank located at
555 S.W. Oak Street, Portland, Oregon 97204, or such other office
as U.S. Bank may hereafter designate in writing as such to the
other parties hereto.
"PBGC" will mean the Pension Benefit Guaranty Corpora-
tion established under ERISA, or any successor thereto.
"PERSON" will mean and include any individual,
partnership, joint venture, firm, corporation, association, trust
or other enterprise, or any government or political subdivision
or agency, department, or instrumentality thereof.
"PLAN" will mean any multiemployer plan or single-
employer plan, as defined in Section 4001 and subject to Title IV
of ERISA, which is maintained for employees of Americold or by a
Subsidiary or an ERISA Affiliate.
"PLAN OF REORGANIZATION" will mean the Plan of
Reorganization proposed by Americold in the Chapter 11 proceeding
initiated by Americold in the United States Bankruptcy Court for
the District of Oregon on May 9, 1995.
"PREDECESSOR PLAN" will mean any multiemployer plan or
single-employer plan as defined in Section 4001 and subject to
Title IV of ERISA, which was maintained for employees of any
members of the controlled group of employers with or of which
Americold or a Subsidiary is or was a member.
"PRIME RATE" will mean the rate which U.S. Bank
announces from time to time as its prime rate, as in effect from
time to time. The Prime Rate is a reference rate and does not
necessarily represent the lowest or best rate actually charged to
any customer. U.S. Bank may make commercial loans or other loans
at rates of interest at, above, or below the Prime Rate.
"PRIME RATE LOAN" will mean any Loan bearing interest
at the rates provided in Section 2.8(a).
"PRO FORMA DEBT SERVICE," for any period, shall mean
the sum of (i) Adjusted Consolidated Interest Expense (excluding
any non-cash items included in Adjusted Consolidated Interest
Expense to the extent no current liability exists with respect
thereto) that would be payable during such period by Americold
and its Subsidiaries assuming (x) that all Indebtedness
outstanding on the last day of the quarter prior to the period
for which the determination is being made was outstanding
throughout such period (other than scheduled payments of
principal to the extent included in clause (ii) hereof), and
(y) that, with respect to any floating rate or other
Indebtedness, the interest rate in effect on the date of such
determination was in effect throughout such period, but giving
effect to any scheduled increase or decrease in interest rate
that is ascertainable on the date of determination, and (ii) the
amount of principal payments payable during such period (and any
interest payable during such period on such principal amounts to
the extent not included in clause (i) hereof) on all Indebtedness
of Americold and its Subsidiaries, in each case consolidated in
accordance with generally accepted accounting principles.
"PROPERTY" will have the meaning set forth in
Section 8.12.
"QUARTERLY PAYMENT DATE" will mean the last day of
each May, August, November, and February.
"REGULATION D" will 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 requirement.
"REPORTABLE EVENT" will mean an event described in
Section 4043(b) of ERISA (with respect to which the 30-day notice
requirement has not been waived by the PBGC).
"SEC" shall have the meaning provided in
Section 8.1(g).
"SECURITY AGREEMENT" will mean the Security Agreement
between Americold and U.S. Bank dated July 2, 1987, as amended
February 3, 1993, to, inter alia, add ASC as a party as the same
has been or may hereafter be amended, modified, supplemented or
restated from time to time, and the Pledge Agreement between
Americold and U.S. Bank dated February 28, 1989, as the same may
be amended, modified, supplemented or restated from time to time.
"STATED AMOUNT" of each Letter of Credit will mean the
maximum amount available to be drawn thereunder.
"SUBORDINATED DEBT" AND "SUBORDINATED DEBENTURES" will
mean Americold's 15% Senior Subordinated Debentures due 2007.
"SUBSIDIARY" of any Person will mean and include
(a) any corporation more than 50 percent 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 will 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 (b) any partnership, association, joint venture or other
entity in which such Person, directly through Subsidiaries, has
more than a 50 percent equity interest at the time.
"TERMINATION DATE" will mean February 28, 1999.
"TYPE" will mean any type of Loan determined with
respect to the interest option applicable thereto, i.e., whether
a Prime Rate Loan or a Eurodollar Loan.
"UNPAID DRAWING" will have the meaning provided in
Section 3.4(a).
"U.S. BANK" will mean United States National Bank of
Oregon, a national banking association, its successors and
assigns.
ARTICLE 2
AMOUNT AND TERMS OF CREDIT
2.1 LOANS. Subject to and upon the terms and conditions
herein set forth, U.S. Bank agrees to make a loan or loans (each
a "Loan" and collectively the "Loans") to Americold from time to
time on or after the Closing Date and prior to the Termination
Date, which Loans (a) will, at the option of Americold, be either
Prime Rate Loans or Eurodollar Loans, or any combination thereof,
and (b) may be repaid and, subject to the terms and conditions
specified herein, may be reborrowed in accordance with the
provisions hereof. The sum of all outstanding Loans plus all
Letter(s) of Credit Outstanding shall not exceed at any time the
lesser of (i) the Commitment or (ii) the Borrowing Base. If at
any time the limitation in the foregoing sentence is exceeded,
Americold shall promptly pay the amount necessary to reduce the
sum of outstanding Loans and Letter(s) of Credit Outstanding to
the lesser of the Commitment or the Borrowing Base.
2.2 MINIMUM AMOUNT OF EACH LOAN. The aggregate principal
amount of each Loan will be not less than $1,000,000 in the case
of Eurodollar Loans and $25,000 in the case of Prime Rate Loans.
2.3 NOTICE OF LOAN. Whenever Americold desires to obtain
a Loan hereunder, it will give U.S. Bank written or telephonic
notice (confirmed in writing) prior to noon (Portland, Oregon,
time) on the desired day of each Prime Rate Loan and at least
three Business Days' prior written or telephonic notice
(confirmed in writing) of each Eurodollar Loan. Each such notice
(each a "Notice of Loan") will specify the aggregate principal
amount of the Loans to be made, the date of such Loans (which
will be a Business Day), and whether such Loans will consist of
Prime Rate Loans or Eurodollar Loans and, if Eurodollar Loans,
the initial Interest Period to be applicable thereto. U.S. Bank
will, upon determining the Eurodollar Rate, if applicable, for
any Interest Period, promptly notify Americold thereof.
2.4 DISBURSEMENT OF FUNDS. On the date specified in each
Notice of Loan, U.S. Bank will make available to Americold each
Loan requested to be made on such date. All such amounts will be
made available in U.S. dollars and immediately available funds.
2.5 NOTE.
(a) Americold's obligation to pay the principal of,
and interest on, all the Loans made will be evidenced by a
promissory note (the "Note") duly executed and delivered by
Americold substantially in the form of Exhibit A hereto with
blanks appropriately completed in conformity herewith. The Note
will (i) be payable to the order of U.S. Bank and be dated the
Effective Date, (ii) be in the stated principal amount equal to
the Commitment and be payable in the principal amount of the
Loans made by U.S. Bank, (iii) mature on the Termination Date,
(iv) bear interest as provided in the appropriate clause of
Section 2.8 in respect of the Prime Rate Loans and the Eurodollar
Loans, as the case may be, evidenced thereby, (v) be subject to
prepayment as provided in Article 5, and (vi) be entitled to the
benefits of this Agreement, the Mortgage, and the Security
Agreement.
(b) U.S. Bank will record on its internal records the
amount of each Loan made by it and each payment and each conver-
sion in respect thereof and will, prior to any transfer of the
Note, endorse on the reverse side thereof the outstanding princi-
pal amount of Loans evidenced thereby. Failure to make any such
notation will not affect Americold's obligations in respect of
such Loans.
(c) Although the Note will be dated as of the
Effective Date, interest in respect thereof will be payable only
for the periods during which Loans are outstanding thereunder.
In addition, although the stated amount of the Note will be equal
to the Commitment, the Note will be enforceable with respect to
Americold's obligation to pay the principal thereof only to the
extent of the unpaid principal amount of the Loans outstanding
thereunder at the time such enforcement will be sought.
2.6 CONVERSIONS. Americold will have the option to
convert on any Business Day all or a portion of the outstanding
principal amount of the Loans from one Type of Loan into the
other Type, PROVIDED that (a) except as otherwise provided in
Section 2.10(b) or 2.11, Eurodollar Loans may be converted only
on the last day of an Interest Period applicable thereto and no
such partial conversion of Eurodollar Loans will reduce the
outstanding principal amount of Eurodollar Loans made pursuant to
a single Loan to less than $1,000,000, (b) if a Default or Event
of Default is then in existence, Eurodollar Loans may only be
converted into Prime Rate Loans, and (c) Prime Rate Loans may be
converted into Eurodollar Loans only if no Default or Event of
Default is then in existence. Each such conversion will be
effected by Americold by giving U.S. Bank written or telephone
notice (confirmed in writing) prior to noon (Portland, Oregon,
time) of the date of the desired conversion if the conversion is
into Prime Rate Loans and at least three Business Days' prior
written or telephonic notice (confirmed in writing) if the
conversion is into Eurodollar Loans (a "Notice of Conversion")
specifying the Loans to be so converted and if to be converted
into Eurodollar Loans, the Interest Period to be initially
applicable thereto. Upon any such conversion, the proceeds
thereof will be applied directly on the date of such conversion
to repay the outstanding principal amount of the Loans being
converted.
2.7 [SECTION OMITTED]
2.8 INTEREST RATES, PAYMENT DATE.
(a) Americold agrees to pay interest in respect of the
unpaid principal amount of each Prime Rate Loan from the date of
the respective Prime Rate Loan at a rate per annum which will be
(i) 1 percent in excess of the Prime Rate in effect from time to
time (ii) adjusted prospectively as of the 91st day after the
close of each fiscal year of Americold and the 46th day after the
close of each fiscal quarter of Americold, by adding or
subtracting the applicable adjustment factor set forth below
computed as of the end of the respective fiscal quarter or year:
FIXED CHARGE COVERAGE RATIO ADJUSTMENT
FACTOR
1.19 or less +.25%
Above 1.19 through 1.50 0%
Above 1.50 through 1.75 -.25%
Above 1.75 through 2.00 -.50%
Above 2.00 through 2.25 -.75%
Above 2.25 -1.00%
For the purposes of this subsection 2.8(a) the term "Fixed Charge
Coverage Ratio" shall mean the ratio of (x) EBITDA plus cash on
hand to (y) Fixed Charges.
(b) Americold agrees to pay interest in respect of the
unpaid principal amount of each Eurodollar Loan from the date of
the respective Eurodollar Loan at a rate per annum which will be
(i) 2 percent in excess of the relevant Eurodollar Rate
(ii) adjusted prospectively, as of the 91st day after the close
of each fiscal year of Americold and the 46th day after the close
of each fiscal quarter of Americold, by adding or subtracting the
applicable adjustment factor computed as of the end of the
respective fiscal quarter or year from the table set forth in
Section 2.8(a), above.
(c) Overdue principal, and, to the extent permitted by
law, all overdue interest in respect of each Loan will, notwith-
standing anything to the contrary contained in Section 2.8(a) or
(b), bear interest at a rate per annum equal to 2 percent per
annum in excess of the Prime Rate in effect from time to time,
PROVIDED that during any period principal or interest is overdue
(whether by acceleration or otherwise), (x) no Eurodollar Loan
will at any time during an Interest Period applicable thereto
bear interest at a rate per annum less than 1 percent in excess
of the rate of interest which would otherwise be applicable
thereto pursuant to Section 2.8(b), and (y) no Loan will bear
interest after maturity at a rate per annum less than 1 percent
in excess of the rate of interest applicable thereto at maturity.
(d) Interest will accrue from and including the date
of any Loan to but excluding the date of any repayment thereof
(and the date of interest payment thereon) and will be payable
(i) in respect of each Prime Rate Loan, quarterly in arrears on
each Quarterly Payment Date, and (ii) in respect of each
Eurodollar Loan, quarterly in arrears on each Quarterly Payment
Date and on the last day of each Interest Period applicable to
such Loan, and (iii) in the case of all Loans, on any prepayment
or conversion (on the amount prepaid or converted), at maturity
(whether by acceleration or otherwise) and, after such maturity,
on demand.
(e) All computations of interest will be calculated on
the actual number of days elapsed over a year of 360 days.
2.9 INTEREST PERIODS. Upon advance notice by Americold in
accordance with Section 2.3 (in the case of Loans) or Section 2.6
(in the case of conversions), Americold will have the right to
elect by giving U.S. Bank written notice (or telephonic notice
confirmed in writing) the interest period (each an "Interest
Period") applicable to each Eurodollar Loan, which Interest
Period will, at the option of Americold, be a one-, two-, three-,
or six-month period, PROVIDED that:
(a) the initial Interest Period for any Eurodollar
Loan will commence on the date of such Loan (including the date
of any conversion from a Prime Rate or other Type Loan) and each
Interest Period occurring thereafter in respect of such Loan will
commence on the day on which the next preceding Interest Period
expires;
(b) for any Eurodollar Loan, 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 will expire on the next preceding Business Day; and
(c) no Interest Period will extend beyond the Termina-
tion Date.
If upon the expiration of any Interest Period, Americold has
failed to elect a new Interest Period to be applicable to the
respective Eurodollar Loans as provided above, Americold will be
deemed to have elected to convert such Eurodollar Loans, as the
case may be, into Prime Rate Loans effective as of the expiration
date of such current Interest Period.
2.10 INCREASED COSTS, ILLEGALITY, ETC.
(a) In the event that U.S. Bank will have determined
(which determination will, absent manifest error, be final and
conclusive and binding upon all parties but, with respect to the
following clause (i), will be made only after consultation with
Americold):
(i) on any date for determining the Eurodollar Rate
for any Interest Period applicable to any of its Eurodollar
Loans, that by reason of any changes arising after the date
of this Agreement affecting the interbank eurodollar market,
adequate and fair means do not exist for ascertaining the
applicable interest rate on the basis provided for in the
definition of Eurodollar Rate; or
(ii) at any time, that the relevant Eurodollar
Rate applicable to any of its Eurodollar Loans will not
represent the effective pricing to U.S. Bank for funding or
maintaining a Eurodollar Loan because of any change since
the date of this Agreement (x) in any applicable law or
governmental rule, regulation, guideline, or order (or any
interpretation thereof and including the introduction of any
new law or governmental rule, regulation, guideline, or
order) (such as, for example, but not limited to a change in
official reserve requirements, but, in all events, excluding
reserves to the extent included in the computation of the
Eurodollar Rate) and/or (y) other circumstances affecting
U.S. Bank or the interbank eurodollar market or the position
of U.S. Bank in such market; or
(iii) at any time, that the making or continuance by
U.S. Bank of any Eurodollar Loan has become unlawful by
compliance by it in good faith with any law, governmental
rule, regulation, guideline, or order, or has become
impracticable as a result of a contingency occurring after
the date of this Agreement which materially and adversely
affects the interbank eurodollar market;
then, and in any such event, U.S. Bank will, promptly after
making or learning of such determination, give notice (by tele-
phone confirmed in writing) to Americold of such determination.
Thereafter (x) in the case of clauses (i) and (ii), Americold
will pay to U.S. 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 U.S.
Bank will reasonably determine) as will be required to cause U.S.
Bank to receive interest with respect to its affected Eurodollar
Loan at a rate per annum which will maintain the margin (adjusted
as set forth in Section 2.8(b)) in excess of the effective
pricing to U.S. Bank to make or maintain such Eurodollar Loan (a
written notice as to additional amounts owed U.S. Bank, showing
the basis for the calculation thereof, submitted to Americold by
U.S. Bank will, absent manifest error, be final and conclusive
and binding upon all of the parties hereto) and (y) in the case
of clause (iii), Americold will take one of the actions specified
in Section 2.10(b) as promptly as possible and, in any event,
within the time period required by law.
(b) At any time that any of its Eurodollar Loans are
affected by the circumstances described in Section 2.10(a),
Americold may (and in the case of a Eurodollar Loan affected
pursuant to Section 2.10(a) (iii) will) either (x) if the
affected Eurodollar Loan is then being made pursuant to a Loan or
a conversion, (i) cancel said Loan or conversion or (ii) require
U.S. Bank to make the requested Loan as, or maintain its
outstanding Loan being converted as, a Prime Rate Loan, in either
cab by giving U.S. Bank telephonic notice (confirmed in writing)
thereof on the same date that Americold was notified by U.S. Bank
pursuant to Section 2.10(a), or (y) if the affected Eurodollar
Loan or Loans are then outstanding, upon at least one Business
Day's telephonic notice (confirmed in writing) to U.S. Bank,
require U.S. Bank to convert each Eurodollar Loan so affected
into a Prime Rate Loan.
2.11 COMPENSATION. Unless already included in the
applicable Eurodollar Rate by virtue of clause (b) of the defini-
tion of Eurodollar Rate, Americold will compensate U.S. Bank,
upon U.S. Bank's written request (which request will set forth
the basis for requesting such amounts), for (a) all costs
incurred, losses suffered, or payments made by U.S. Bank which
are applied or allocated to U.S. Bank by reason of any and all
present or future reserves, deposits, or similar requirements
(whether or not such reserves or deposits are match-funded by
U.S. Bank) imposed by Regulation D in connection with any
Eurodollar Rate Loan; and (b) all reasonable losses, expenses,
and liabilities (including, without limitation, any interest paid
by U.S. Bank to lenders of funds borrowed by it to make or carry
its Eurodollar Loan to the extent not recovered by U.S. Bank in
connection with the re-employment of such funds), which
U.S. Bank may sustain: (i) if for any reason attributable to
Americold a Eurodollar Loan does not occur on a date specified
therefor in a Notice of Loan or Notice of Conversion (whether or
not withdrawn), (ii) if any repayment or conversion of any of its
Eurodollar Loans occurs, whether by voluntary prepayment (which
shall be allowed hereunder), acceleration, or any requirements of
this Agreement, on a date which is not the last day of an
Interest Period applicable thereto, (iii) if any prepayment or
conversion of any of its Eurodollar Loans is not made on any date
specified in a notice of prepayment or Notice of Conversion given
by Americold, or (iv) as a consequence of (x) any default by
Americold in repaying its Loans or any other amounts owing
hereunder when required by the terms of this Agreement or (y) to
the extent not covered by the preceding clauses, an election made
or action taken by Americold pursuant to Section 2.10(b).
2.12 VOLUNTARY REDUCTION OF COMMITMENTS. Upon at least
three Business Days' prior written or telephonic notice
(confirmed in writing) to U.S. Bank, Americold will have the
right, without premium or penalty, to terminate the unutilized
portion of the Commitment, in part or in whole, provided that any
partial reduction pursuant to this Section 2.12 will be in the
amount of at least $1,000,000, and provided further that no
reduction may be made below an amount equal to the sum of Loans
and Letters of Credit Outstanding.
ARTICLE 3
LETTERS OF CREDIT
3.1 LETTERS OF CREDIT.
(a) Subject to and upon the terms and conditions
herein set forth, U.S. Bank will issue, upon written request of
Americold, at any time and from time to time on or after the
Closing Date and prior to the Termination Date, for the account
of Americold and for the benefit of any holder of payment obliga-
tions of Americold or any Subsidiary, one or more irrevocable
letters of credit which will not exceed $10,000,000 in the aggre-
gate at any time in such form as may be approved by U.S. Bank in
support of said payment obligations (each a "Letter of Credit").
(b) Notwithstanding the foregoing, (i) no Letter of
Credit will be issued the Stated Amount of which, when added to
the sum of the aggregate principal amount of all Loans and
Letters of Credit Outstanding, at such time, would exceed the
lesser of the Commitment or the Borrowing Base and (ii) each
Letter of Credit will by its terms terminate on or before the
Termination Date.
3.2 MINIMUM STATED AMOUNT. The Stated Amount of each
Letter of Credit will be not less than $25,000.
3.3 LETTER OF CREDIT REQUESTS. Whenever Americold desires
that a Letter of Credit be issued after the Closing Date for its
account, Americold will give U.S. Bank at least five Business
Days' written notice thereof specifying the beneficiary of the
requested Letter of Credit, the term thereof, and the conditions
upon which payments will be required to be made thereunder.
3.4 AGREEMENT TO REPAY LETTER OF CREDIT DRAWINGS.
(a) Americold hereby agrees to reimburse U.S. Bank, by
making payment in immediately available funds at its Office, for
any payment or disbursement made by U.S. Bank under any Letter of
Credit (each such amount, so paid or disbursed until reimbursed,
an "Unpaid Drawing") immediately after such payment or disburse-
ment (provided notice is given to Americold by noon (Portland,
Oregon, time), on the date of such payment or disbursement,
otherwise, on the next Business Day) with interest on the amount
so paid or disbursed by U.S. Bank, to the extent not reimbursed
(including a reimbursement pursuant to a Loan made in accordance
with the last sentence of this Section 3.4(a)) prior to noon
(Portland, Oregon, time) on the date of such payment or disburse-
ment, from and including the date paid or disbursed to but not
including the date U.S. Bank was reimbursed therefor at a rate
per annum which will be 1.5 percent (2.5 percent after the third
day following such Drawing) in excess of the Prime Rate in effect
from time to time, such interest also to be payable on demand.
At any time after a drawing under a Letter of Credit (each a
"Drawing") is made, US. Bank may, automatically and without
notice but subject to the satisfaction of the conditions speci-
fied in Article 6, make a Prime Rate Loan in the amount of such
Drawing (to the extent such Loan is then permitted to be out-
standing pursuant to Section 2.1 and Section 3.1(a)), the
proceeds of which will be applied directly by U.S. Bank to
reimburse such Drawing.
(b) Americold's obligations under this Section 3.4 to
reimburse U.S. Bank with respect to Unpaid Drawings (including,
in each case, interest thereon) will be absolute and uncondi-
tional under any and all circumstances and irrespective of any
setoff, counterclaim, or defense to payment which Americold may
have or have had against U.S. Bank, including, without limita-
tion, any defense based upon the failure of any Drawing to
conform to the terms of the Letter of Credit or any nonapplica-
tion or misapplication by the beneficiary of the proceeds of such
Drawing, PROVIDED, that Americold will not be obligated to
reimburse U.S. Bank for any wrongful payment made by U.S. Bank
under a Letter of Credit as a result of acts or omissions consti-
tuting willful misconduct or gross negligence on the part of U.S.
Bank.
3.5 INCREASED COSTS. If at any time after the date
hereof, the introduction of any change in applicable law, rule,
or regulation or in the interpretation or administration thereof
by any governmental authority charged with the interpretation or
administration thereof, or compliance by U.S. Bank with any
request or directive by any such authority (whether or not having
the force of law) will either (i) impose, modify, or make
applicable any reserve, deposit, capital adequacy requirement, or
similar requirement against Letters of Credit issued by
U.S. Bank, or (ii) will impose on U.S. Bank any other conditions
affecting this Agreement or any Letter of Credit; and the result
of any of the foregoing is to increase the cost to U.S. Bank of
issuing, maintaining, or participating in any Letter of Credit,
or reduce the amount of any sum received or receivable by U.S.
Bank hereunder, then, upon demand (which demand will be given by
U.S. Bank promptly after it determines such increased cost or
reduction is applicable to Letters of Credit issued hereunder) to
Americold by U.S. Bank, Americold will pay to U.S. Bank such
additional amount or amounts as will compensate U.S. Bank for
such increased cost or reduction. A certificate submitted to
Americold by U.S. Bank setting forth the basis for the determina-
tion of such additional amount or amounts necessary to compensate
U.S. Bank as aforesaid will, absent manifest error, be conclusive
and binding on Americold.
ARTICLE 4
FEES
4.1 FEES.
(a) On the Effective Date, Americold agrees to pay
U.S. Bank a non-refundable commitment fee in the sum of $275,000.
U.S. Bank will credit against such sum all facility fees paid by
Americold under Section 4.1(a) of the First Amended and Restated
Credit Agreement for the period after February 28, 1995.
(b) Americold also agrees to pay U.S. Bank a commit-
ment fee for the period from the Closing Date to and including
the Termination Date, computed at a rate equal to .375 percent
per annum on the daily average unutilized Commitment. This
accrued fee will be due and payable in arrears on each Quarterly
Payment Date and on the Termination Date.
(c) Americold also agrees to pay to U.S. Bank a fee in
respect to each Letter of Credit issued by U.S. Bank ("Letter of
Credit Fee") equal to 1.5 percent per annum of the Stated Amount
of such Letter of Credit. The Letter of Credit Fee will be due
and payable upon the issuance or extension of such Letter of
Credit.
(d) All computations of fees hereunder will be calcu-
lated on the actual number of days elapsed over a year of
360 days.
ARTICLE 5
PAYMENTS
5.1 VOLUNTARY PREPAYMENTS. Americold will have the right
to prepay the Loans, without premium or penalty, in whole or in
part from time to time on the following terms and conditions:
(a) Prime Rate Loans may be prepaid without notice, in
any amount. In the case of a prepayment of Eurodollar Loans,
Americold will give U.S. Bank at least three Business Days' prior
written or telephonic notice (confirmed in writing) of its intent
to prepay the Loans, the amount of such prepayment, and the
specific Loan pursuant to which made;
(b) each partial prepayment of Eurodollar Loans will
be in an aggregate principal amount of at least $500,000,
PROVIDED that no partial prepayment of Eurodollar Loans made
pursuant to a single Loan will reduce the outstanding Loans to an
amount less than $1,000,000; and
(c) except as provided in Sections 2.10 and 2.11,
prepayments of Eurodollar Loans made pursuant to this Section 5.1
may only be made on the last day of an Interest Period applicable
thereto.
5.2 METHOD AND PLACE OF PAYMENT. Except as otherwise
specifically provided herein, (a) all payments of interest,
principal, and fees under this Agreement will be made to U.S.
Bank not later than noon (Portland, Oregon, time) on the date
when due and will be made in lawful money of the United States of
America in immediately available funds at the Office of U.S. Bank
and (b) whenever any payment to be made hereunder or under the
Note will be stated to be due on a day which is not a Business
Day, the due date thereof will be extended to the next succeeding
Business Day and, with respect to payments of principal, interest
will be payable at the applicable rate during such extension.
5.3 NET PAYMENTS. All payments made by Americold
hereunder will be made without setoff, counterclaim, or other
defense (except repayment).
ARTICLE 6
CONDITIONS OF LENDING
6.1 CONDITIONS PRECEDENT TO EFFECTIVENESS. This Agreement
shall not be effective until the following conditions shall have
been satisfied:
(a) EFFECTIVENESS OF PLAN OF REORGANIZATION. The Plan
of Reorganization shall have become effective according to its
terms, including but not limited to the expiration of any appeal
period with respect to the confirmation order.
(b) EXECUTION OF CREDIT DOCUMENTS. Americold will
have executed and delivered to U.S. Bank (i) counterparts of this
Agreement in such number as are requested by U.S. Bank, (ii) the
Note, and (iii) a Borrowing Certificate.
(c) NO DEFAULT; REPRESENTATIONS AND WARRANTIES. There
will exist no Default or Event of Default and all representations
and warranties contained herein and in any other certificate or
financial statement (excluding financial projections) delivered
in connection herewith will 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 this Agreement
becomes effective.
(d) OFFICER'S CERTIFICATE. U.S. Bank will have
received a certificate signed by the President or any Vice
President of Americold stating that the conditions set forth in
Sections 6.1(a), 6.1(c), and 6.1(i) have been satisfied as of
such date.
(e) OPINIONS OF COUNSEL. U.S. Bank will have received
an opinion addressed to U.S. Bank and dated the Effective Date,
from counsel to Americold, which opinion will be in form and
substance satisfactory to U.S. Bank.
(f) CORPORATE PROCEEDINGS. All corporate and legal
proceedings and all instruments and agreements in connection with
the transactions contemplated by this Agreement will be
satisfactory in form and substance to U.S. Bank, and U.S. Bank
will have received all information and copies of all documents
and papers, including records of corporate proceedings and
governmental approvals, if any, which U.S. Bank may have
reasonably requested in connection therewith, such documents and
papers where appropriate to be certified by proper corporate or
governmental authorities.
(g) SECURITY DOCUMENTS; FILINGS. The Security
Agreement will be in full force and effect; the Security Agree-
ment or financing statements or other instruments with respect
thereto, as may be necessary, will have been duly filed or
recorded in such manner and in such places as are required by law
to establish, perfect, preserve, and protect the liens granted to
U.S. Bank pursuant thereto and all taxes, fees, and other charges
payable in connection therewith will have been paid in full.
(h) RECORD SEARCHES. A search, made no more than
30 days prior to the date this Agreement is to become effective,
of the Uniform Commercial Code filing offices or other registers
in each jurisdiction in which Collateral is located and in each
of the other filing or recording places referred to in
Section 6.1(g) will have revealed no filings or recordings in
effect with respect to the Collateral except filings and
recordings acceptable to U.S. Bank in its sole discretion at the
time of such Closing Date and which are listed as such in
Exhibit D hereto ("Permitted Filings"), in favor of any Person
other than U.S. Bank, and U.S. Bank will have received a copy of
the search reports received as a result of such search and
acknowledgment copies of the financing statements or other
instruments required to be filed or recorded pursuant to
Section 6.1(g) bearing evidence of the recording of such
statements or instruments at each of the filing or recording
places referred to in Section 6.1(g).
(i) ADVERSE CHANGE. Since February 28, 1995, there
has been no material adverse change in the business, operations,
condition (financial or otherwise), or prospects of Americold, or
of Americold and its Subsidiaries taken as a whole, except
insofar as the filing of Americold's pending Chapter 11
proceeding might be deemed a material adverse change.
(j) DELIVERY OF DOCUMENTS. Each of the Note,
certificates, legal opinions, and other documents and papers
referred to in this Article 6, unless otherwise specified, will
be delivered to U.S. Bank and will be, along with all matters
relating to this Agreement and the Loans, satisfactory in form
and substance to U.S. Bank and its counsel.
6.2 CONDITIONS PRECEDENT TO EACH LOAN AND LETTER OF
CREDIT. The obligation of U.S. Bank to make Loans and issue
Letters of Credit is subject to the condition that on the date of
such Loan or Letter of Credit, the following statements shall be
true and correct:
(a) U.S. Bank shall have received the notice required
by Section 2.3;
(b) The Loan or Letter of Credit will not contravene
any provision of law, the articles of incorporation (or the
charter) or bylaws, or of any agreement binding upon Americold or
its subsidiaries;
(c) Each and every of the representations and
warranties of Americold in this Agreement shall be true and
correct in all material respects; and
(d) No event shall have occurred and be continuing, or
would result from such Loan or Letter of Credit, which consti-
tutes, or would, with passage of time or giving of notice or
both, constitute a Default or Event of Default.
Americold agrees not to request or accept Loans or
Letters of Credit under this Agreement unless the foregoing
statements shall be true and correct, and any request for or
acceptance by Americold of Loans or Letters of Credit hereunder
shall be deemed to constitute Americold's representation that
such statements are true and correct on the date the Loans are
made or Letters of Credit requested or issued.
ARTICLE 7
REPRESENTATIONS AND WARRANTIES
In order to induce U.S. Bank to enter into this
Agreement and to make the Loans and to issue the Letters of
Credit, Americold makes the following representations and
warranties as of the Effective Date and as of the date of each
subsequent Loan or issuance of a Letter of Credit, which will
survive the execution and delivery of this Agreement and the
Note, the making of the Loans, and the issuance of the Letters of
Credit:
7.1 CORPORATE STATUS. Each of Americold and its Subsidi-
aries (a) is a duly organized and validly existing corporation in
good standing under the laws of the jurisdiction of its incorpo-
ration, (b) has the power and authority to own its property and
assets and to transact the business in which it is engaged, and
(c) is duly qualified as a foreign corporation and in good
standing in each jurisdiction where the ownership, lease, or
operation of property or the conduct of its business requires
such qualification except where the failure to be so qualified
would not have a material adverse effect on the business, opera-
tions, property, condition (financial or otherwise), or immediate
prospects of Americold and its Subsidiaries taken as a whole.
7.2 CORPORATE POWER AND AUTHORITY. Each of Americold and
its Subsidiaries has the corporate power to execute, deliver, and
carry out the terms and provisions of each of the Credit Docu-
ments to which it is party and has taken all necessary corporate
action to authorize the execution, delivery, and performance by
it of each of the Credit Documents to which it is party. Each of
Americold and its Subsidiaries has duly executed and delivered
each of the Credit Documents to which it is party, and each of
the Credit Documents to which it is party constitutes its legal,
valid, and binding obligations enforceable in accordance with its
respective terms.
7.3 NO VIOLATION. Neither the execution, delivery, or
performance by Americold or its Subsidiaries of the Credit Docu-
ments, nor compliance by them with the terms and provisions
thereof, (a) will contravene any applicable provision of any law,
statute, rule, regulation, order, writ, injunction, or decree of
any court or governmental instrumentality, or (b) will conflict
or be inconsistent with or result in any breach of any of the
terms, covenants, conditions, or provisions of, or constitute a
default under, or, except for the liens in favor of U.S. Bank
pursuant to the Mortgages and the Security Agreement, result in
the creation or imposition of (or the obligation to create or
impose) any Lien upon any of the property or assets of Americold
or any Subsidiary pursuant to the terms of any indenture,
mortgage, deed of trust, agreement, or other instrument to which
Americold or any Subsidiary is a party or by which it or any of
its property or assets is bound, or (c) will violate any
provision of the Certificate of Incorporation or bylaws of
Americold or any Subsidiary.
7.4 LITIGATION. There are no actions, suits, or
proceedings pending or, to the best of the knowledge of
Americold, threatened with respect to any Credit Document or that
are reasonably likely to materially and adversely affect the
operations, business, property, assets, condition (financial or
otherwise), or immediate prospects of Americold and its
Subsidiaries taken as a whole. Americold's pending Chapter 11
proceeding will not be deemed a breach of the representation in
this Section 7.4
7.5 FINANCIAL STATEMENTS; FINANCIAL CONDITION; ETC.
(a) Americold has delivered to U.S. Bank income
projections of Americold and its Subsidiaries for the period
ending on February 28, 1996, and each of the first twelve fiscal
years to occur thereafter. Such projections represent good faith
estimates of Americold of the income of Americold and its
Subsidiaries for the periods covered thereby.
(b) On the Effective Date and after giving effect to
all the transactions contemplated hereby, (i) the assets of
Americold, at a fair valuation, will exceed its liabilities,
including contingent liabilities, (ii) the remaining capital of
Americold will not be unreasonably small to conduct its business,
and (iii) Americold will not have incurred debts, and will not
intend to incur debts, beyond its ability to pay such debts as
they mature. For purposes of this Section 7.5(b), "debt" means
any liability on a claim, and "claim" means (y) right to payment,
whether or not such right is reduced to judgment, liquidated,
unliquidated, fixed, contingent, matured, unmatured, disputed,
undisputed, legal, equitable, secured or unsecured; or (z) 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.
7.6 USE OF PROCEEDS; MARGIN REGULATIONS. All proceeds of
each Loan will be used by Americold (a) to pay amounts payable
and expenses incurred hereunder and, (b) for general working
capital purposes, including to reimburse Drawings under Letters
of Credit. No part of the proceeds of any Loan will be used to
make payments of principal on the effective date of the Plan of
Reorganization with respect to any Americold Indebtedness. No
part of the proceeds of any Loan will be used by Americold to
purchase or carry any Margin Stock or to extend credit to others
for the purpose of purchasing or carrying any Margin Stock.
Neither the making of any Loan nor the use of the proceeds
thereof will violate or be inconsistent with the provisions of
Regulations G, T, U, or X of the Board of Governors of the
Federal Reserve System.
7.7 GOVERNMENTAL APPROVALS. No order, consent, approval,
license, authorization, or validation of, or filing, recording,
or registration with (except as have been obtained or made or
will be obtained or made prior to the time required by this
Agreement), or exemption by, any governmental or public body or
authority, or any subdivision thereof, is required to authorize,
or is required in connection with (a) the execution, delivery,
and performance of any Credit Document or (b) the legality,
validity, binding effect, or enforceability of any Credit
Document.
7.8 SECURITY INTERESTS. The Security Agreement continues,
and the Mortgage will (after execution and recording, as required
by Section 8.12 of this Agreement) provide, as security for the
Obligations, valid and enforceable security interests in and
Liens on all of the Collateral, in favor of U.S. Bank, which are
perfected and superior to and prior to the rights of all third
Persons.
7.9 TAX RETURNS AND PAYMENTS. Each of Americold and each
Subsidiary has filed all tax returns required to be filed by it
and has paid all income taxes payable by it which have become due
pursuant to such tax returns and all other taxes and assessments
payable by it which have become due, other than those not yet
delinquent and except for those contested in good faith. Each of
Americold and each Subsidiary has paid, or has provided adequate
reserves (in the good faith judgment of the management of
Americold or such Subsidiary) for the payment of, all federal and
state income taxes applicable for all prior fiscal years and for
the current fiscal year to the date hereof.
7.10 COMPLIANCE WITH ERISA. All Plans except any multi-
employer plan (as defined in Section 4001(a)(3) of ERISA) are in
substantial compliance with ERISA, no Plan is insolvent or in
reorganization, no Plan has an accumulated or waived funding
deficiency or has applied for an extension of any amortization
period within the meaning of Section 412 of the Code, neither
Americold, nor any Subsidiary, nor any ERISA Affiliate has
incurred any liability to or on account of a Plan which is a
single-employer plan as defined in Section 4001(a)(15) of ERISA
pursuant to Sections 4062, 4063, 4064, or a multiemployer plan
pursuant to Sections 515, 4201, or 4204 of ERISA which remains
unsatisfied, no proceedings have been instituted to terminate any
Plan, and no condition exists which presents a material risk to
Americold or any Subsidiary of either incurring a liability to or
on account of a Plan pursuant to any of the foregoing Sections of
ERISA or the Code. Any representation in the immediately
preceding sentence with respect to any Plan which is a multi-
employer plan (other than a representation with respect to
liability under Section 515, 4201 or 4204 of ERISA) will be to
the knowledge of Americold. As of the Closing Date, the aggre-
gate present value of all accrued benefits of all Plans which
were single-employer plans did not exceed the aggregate current
value of all assets of such Plans based upon estimated actuarial
data which has been provided to Americold by the consulting
actuaries of the Plans based upon the most recent actuarial data
as of March 1, 1991, by more than $300,000 and there has been no
material change in such liability. The aggregate present value
of unfunded contingent withdrawal liability under Title IV of
ERISA attributable to Americold or any of its Subsidiaries does
not exceed $1,500,000 as of the Closing Date, based upon the most
recent records with respect to such contingent withdrawal
liability presently available to Americold. To the knowledge of
Americold, neither Americold nor any Subsidiary of Americold has
incurred any liability (including any contingent or secondary
liability) to or on account of a Predecessor Plan.
7.11 INVESTMENT COMPANY ACT. Americold is not an "invest-
ment company" within the meaning of the Investment Company Act of
1940, as amended.
7.12 TRUE AND COMPLETE DISCLOSURE. All factual information
(taken as a whole) heretofore or contemporaneously furnished by
or on behalf of Americold in writing to U.S. Bank, for purposes
of or in connection with this Agreement or any transaction
contemplated hereby is, and all other such factual information
(taken as a whole) hereafter furnished by or on behalf of
Americold in writing to U.S. 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
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.
7.13 SUBSIDIARY. Americold Services Corporation is the
only active Subsidiary of Americold. Americold owns 100 percent
of the capital stock of such Subsidiary.
7.14 PATENTS, LICENSES, FRANCHISES AND FORMULAS. Americold
and its Subsidiaries own all of the patents, trademarks, permits,
service marks, trade names, copyrights, licenses, franchises, and
formulas, or rights with respect to the foregoing, and have
obtained assignments of all leases and other rights of whatever
nature, necessary for the present conduct of its and their
businesses, without any known conflict with the rights of others
which, or the failure to obtain which, as the case may be, would
result in a material adverse effect on the business, operations,
property, or financial or other conditions of Americold and its
Subsidiaries, taken as a whole.
7.15 LABOR RELATIONS. Neither Americold nor any
Subsidiary is engaged in any unfair labor practice that could
materially and adversely affect the operations, business,
property, assets, condition (financial or otherwise), or
immediate prospects of Americold and its Subsidiaries taken as a
whole. There is (a) no significant unfair labor practice
complaint pending against Americold or any Subsidiary or, to the
best knowledge of Americold, threatened against any of them,
before the National Labor Relations Board, and no significant
grievance or significant arbitration proceeding arising out of or
under collective bargaining agreements is so pending against
Americold or any Subsidiary or, to the best knowledge of
Americold, threatened against any of them, (b) no significant
strike, labor dispute, slowdown, or stoppage pending against
Americold or any Subsidiary, or (c) to the best knowledge of
Americold, no union representation question existing with respect
to the employees of Americold or any Subsidiary and, to the best
knowledge of Americold, no union organizing activities are taking
place, except (with respect to any matter specified in clause
(a), (b), or (c), either individually or in the aggregate) such
as would not materially and adversely affect the operations,
business, property, assets, condition (financial or otherwise),
or immediate prospects of Americold and its Subsidiaries taken as
a whole.
ARTICLE 8
AFFIRMATIVE COVENANTS
Americold covenants and agrees that on and after the
Effective Date and until the Commitment and all Letters of Credit
have terminated and the Loans, together with interest, fees, and
all other obligations incurred hereunder, are paid in full:
8.1 INFORMATION COVENANTS. It will furnish to U.S. Bank:
(a) QUARTERLY REPORTS. Within 45 days after the close
of each quarterly accounting period in each fiscal year of
Americold, the consolidated balance sheets of Americold and its
Subsidiaries as at the end of such quarterly period and the
related consolidated statements of income and retained earnings
and statements of changes in financial position for such
quarterly period and for the elapsed portion of the fiscal year
ended with the last day of such quarterly period, and in each
case setting forth comparative figures for the appropriate
periods in the prior fiscal year, all of which will be certified
by the Chief Financial Officer or the Treasurer of Americold,
subject to year-end audit adjustments.
(b) ANNUAL REPORTS. Within 90 days after the close of
each fiscal year of Americold: (i) the consolidated balance
sheets of Americold and its Subsidiaries as at the end of such
fiscal year and the related consolidated statements of income and
retained earnings and statements of changes in financial position
for such fiscal year, in each case setting forth comparative
figures for the preceding fiscal year and certified by KPMG Peat
Marwick or other independent certified public accountants of
recognized national standing reasonably acceptable to U.S. Bank,
in each case together with a report of such accounting firm
stating that in the course of its regular audit of the financial
statements of Americold, which audit was conducted in accordance
with generally accepted auditing standards, such accounting firm
has obtained no knowledge of any Default or Event of Default
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;
and (ii) a written schedule showing names, addresses, and
accounts of debtors. No document-or report shall contain a
disclaimer of opinion or adverse opinion except such as U.S.
Bank, in its sole discretion, determines to be immaterial.
(c) MANAGEMENT LETTERS. Promptly after Americold's
receipt thereof, a copy of any "management letter" documenting
any significant internal control weakness or other significant
irregularity noted during any audit that was received by
Americold from its certified public accountants.
(d) BUDGETS AND INTERIM FINANCIAL INFORMATION. By
April 30 following the beginning of each fiscal year of
Americold, a budget in form satisfactory to U.S. Bank (including
monthly budgeted statements of income and annual budgeted sources
and uses of cash and balance sheets) prepared by Americold for
the three-year period beginning on the first day of such fiscal
year for Americold and its Subsidiaries accompanied by the
statement of the Chief Financial Officer or the Treasurer of
Americold to the effect that, to the best of his knowledge, the
budget is a reasonable estimate for the periods covered thereby.
(e) OFFICER'S CERTIFICATES. At the time of the
delivery of the financial statements provided for in
Section 8.1(a) and (b), a certificate of the Chief Financial
Officer or the Treasurer of Americold to the effect that, to the
best of his knowledge, no Default or Event of Default exists or,
if any Default or Event of Default does exist, specifying the
nature and extent thereof and the actions being taken or proposed
to cure the same, which certificate will also set forth the
calculations required to establish whether Americold was in
compliance with the provisions of Sections 9.9 and 9.11,
inclusive, 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 five Business Days after any executive officer
of Americold obtains knowledge thereof, notice of (x) the
occurrence of any event which constitutes a Default or Event of
Default, (y) any litigation or governmental proceeding pending
(i) against Americold or any Subsidiary which is likely to
materially and adversely affect the operations, business,
property, assets, condition (financial or otherwise), or
prospects of Americold and its Subsidiaries taken as a whole or
(ii) with respect to any Credit Document, and (s) any other event
which is likely to materially and adversely affect the financial
condition, operations, or prospects of Americold or any
Subsidiary.
(g) OTHER REPORTS AND FILINGS. Promptly, copies of
all financial information, proxy materials, and other information
and reports, if any, (i) which Americold or any Subsidiary will
file with the Securities and Exchange Commission or any govern-
mental agencies substituted therefor (the "SEC"), or (ii) which
Americold or any Subsidiary will deliver to the trustee or the
holders of the First Mortgage Bonds or the Subordinated
Debentures.
(h) MONTHLY REPORTS. As soon as practicable (in any
event within 30 days after the end of each of the calendar months
of each year except February, and within 90 days after the end of
February) (i) consolidated financial statements of Americold and
its Subsidiaries, as at the end of such month in form and detail
similar to those customarily prepared by management for internal
use, presently referred to as IS-I, BS-1, and statements of cash
flow, setting forth in each case in comparative form the consoli-
dated figures for the corresponding month of the previous year
and (ii) a Sales and Earnings Report.
(i) BORROWING CERTIFICATE. Within 15 days following
the end of each month and at any other time upon request by U.S.
Bank (i) a Borrowing Certificate and (ii) aging lists of accounts
receivable, together with a written summary of Americold's recon-
ciliation of such lists to its general ledger and to the
Borrowing Certificate.
(j) OTHER INFORMATION. From time to time, such other
information or documents (financial or otherwise) as U.S. Bank
may reasonably request.
8.2 BOOKS, RECORDS, AND INSPECTIONS; COLLATERAL AUDITS.
Americold will, and will cause each Subsidiary to, keep proper
books of record and account in which full, true, and correct
entries in conformity with generally accepted accounting princi-
ples and all requirements of law will be made of all dealings and
transactions in relation to its business and activities.
Americold will, and will cause each Subsidiary to, permit offi-
cers and designated representatives of U.S. Bank to visit and
inspect, under guidance of officers of Americold or such Subsidi-
ary, any of the properties of Americold or such Subsidiary, and
to examine the books of account of Americold or such Subsidiary
and discuss the affairs, finances, and accounts of Americold or
such Subsidiary with, and be advised as to the same by, its and
their officers, all at such reasonable times and intervals and to
such reasonable extent as U.S. Bank may desire. Americold will
permit U.S. Bank to conduct, at the sole expense of Americold,
semiannual audits of the Collateral, the time and manner of such
audits to be determined by U.S. Bank.
8.3 MAINTENANCE OF PROPERTY, INSURANCE. Americold will,
and will cause each Subsidiary to, keep all property useful and
necessary in its business in good working order and condition,
reasonable wear and tear excepted; maintain with financially
sound and reputable insurance companies insurance on all its
property in such amounts and against such risks as a prudent
operator would carry or as is reasonably satisfactory to U.S.
Bank; and furnish to U.S. Bank, upon written request, full
information as to the insurance carried.
8.4 TAXES. Americold will, and will cause each Subsidiary
to, pay when due all taxes which, if not paid when due, would
materially and adversely affect the financial condition or opera-
tions of Americold or such Subsidiary, except those not yet
delinquent and except as contested in good faith and by appro-
priate proceedings if adequate reserves (in the good faith
judgment of the management of Americold) have been established
with respect thereto.
8.5 CORPORATE FRANCHISES. Americold will, and will cause
each Subsidiary to, do or cause to be done all things necessary
to preserve and keep in full force and effect its existence and
its material rights, franchises, licenses, and patents; provided,
however, that nothing in this Section 8.5 will prevent the with-
drawal by Americold or any Subsidiary of its qualification as a
foreign corporation in any jurisdiction where such withdrawal
would not have a material adverse effect on the business of
Americold or such Subsidiary.
8.6 COMPLIANCE WITH STATUTES, ETC. Americold will, and
will cause each Subsidiary to, comply with all applicable
statutes, regulations, and orders of, and all applicable restric-
tions 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
and to the ADA), except such noncompliances as could not; in the
aggregate, materially and adversely affect the operations,
business, property, assets, condition (financial or otherwise),
or immediate prospects of Americold and its Subsidiaries taken as
a whole.
8.7 ERISA. As soon as possible and, in any event, within
10 days after Americold or a Subsidiary knows or has reason to
know that a Reportable Event has occurred with respect to a Plan
(which is not a multiemployer plan), that an application is to be
or has been made to the Secretary of the Treasury for a waiver of
the minimum funding standard or the extension of any amortization
period under Section 412 of the Code with respect to a Plan
(which is not a multiemployer plan), that a Plan (which is not a
multi-employer plan) has been or may be terminated, that
proceedings are likely to be or have been instituted to terminate
a Plan (which is not a multi-employer plan), or that Americold, a
Subsidiary, or an ERISA Affiliate will or may incur any liability
to or on account of a Plan or a Predecessor Plan which is a
single-employer plan under Sections 4062, 4063, or 4064, or which
is a multiemployer plan under Sections 515, 4201, or 4204 of
ERISA, Americold will deliver to U.S. Bank a certificate of a
financial officer setting forth details as to such occurrence and
action, if any, which Americold or the Subsidiary is required or
proposes to take, together with any notices required or proposed
to be filed with or by Americold, the Subsidiary, the ERISA
Affiliate, the PBGC, or the plan administrator with respect
thereto. Copies of any notices required to be delivered to U.S.
Bank hereunder will be delivered no later than 10 days after the
later of the date such notice has been filed with the Internal
Revenue Service or the PBGC or received by Americold or any
Subsidiary.
8.8 PERFORMANCE OF OBLIGATIONS. Americold will, and will
cause each Subsidiary to, perform all of its obligations under
the terms of each valid mortgage, indenture, security agreement,
and other debt instrument by which it is bound, except such
nonperformances as could not in the aggregate materially and
adversely affect the operations, business, property, assets,
condition (financial or otherwise), or immediate prospects of
Americold or Americold and its Subsidiaries taken as a whole.
8.9 FURTHER ASSURANCES. Americold will, at its own
expense, make, execute, endorse, acknowledge, file, and/or
deliver to U.S. Bank from time to time such vouchers, invoices,
schedules, confirmatory assignments, conveyances, financing
statements, transfer endorsements, powers of attorney, certifi-
cates, reports, and other assurances or instruments, and take
such further steps relating to the collateral covered by any of
the Mortgages and the Security Agreements as U.S. Bank may
reasonably require. Furthermore, Americold will cause to be
delivered to U.S. Bank such opinions of counsel, UCC searches,
and other related documents as may be requested by U.S. Bank to
assure U.S. Bank that this Section 8.9 has been complied with.
8.10 FINANCIAL COVENANTS FOR ASC. Americold will maintain
ASC's net worth at the level required to be maintained by
customers which impose such requirements on ASC and will maintain
ASC's working capital at the level required to be maintained by
customers or securities and commodity exchanges (including the
Chicago Mercantile Exchange) which impose such requirements on
ASC.
8.11 FACILITY RESTING REQUIREMENTS. Americold will have no
outstanding Loans (including Loans to pay Unpaid Drawings
pursuant to Section 3.4) for: (a) one 30 consecutive day period
during the fiscal year ending February 28, 1997, and (b) two
separate 30 consecutive day periods during each of the fiscal
years ending February 28, 1998 and 1999. There shall be no
facility resting requirement during the fiscal year ending
February 29, 1996.
8.12 MORTGAGES. Any Mortgage provided to U.S. Bank
pursuant to this Agreement shall include a security interest in
all associated fixtures, equipment, and personal property, as
additional security for the Obligations. Americold shall pay the
cost of all appraisals of Mortgaged Properties required by U.S.
Bank and mortgagee's standard title insurance premiums for title
insurance in a face amount equal to the initial value of the
Mortgaged Property agreed upon by U.S. Bank and Americold.
Americold shall also pay the costs of recording any Mortgage, any
transfer taxes or escrow fees, and the costs of satisfying
requirements (e.g., insurance premiums) set forth in any
Mortgage. Americold may elect at any time to have any Mortgage
or Mortgages released or reconveyed by U.S. Bank, and U.S. Bank
will promptly release or reconvey the Mortgage(s) provided that
no Default or Event of Default then exists or would be created by
such release or reconveyance, and provided that Americold pays
any amount necessary to reduce the sum of outstanding Loans and
Letter(s) of Credit Outstanding to the lesser of the Commitment
or the Borrowing Base calculated without giving effect to the
Mortgage or Mortgages to be release or reconveyed. Provided that
no Default or Event of Default then exists or would be created by
such release, Americold may also elect to have the ASC stock
released from the pledge at any time and U.S. Bank will promptly
release the stock upon receipt of such election.
8.13 [SECTION OMITTED.]
ARTICLE 9
NEGATIVE COVENANTS
Americold covenants and agrees that until the
Commitment and all Letters of Credit have terminated and the
Loans, together with interest, fees, and all other obligations
incurred hereunder, are paid in full:
9.1 [SECTION OMITTED.]
9.2 CONSOLIDATION, MERGER, SALE OF ASSETS, ETC. Americold
will not, and will not permit any Subsidiary to, (a) wind up,
liquidate, or dissolve its affairs, (b) enter into any
transaction of merger or consolidation in which Americold or one
of its Subsidiaries is not the surviving entity, or (c) convey,
sell, lease, or otherwise dispose of (or agree to do any of the
foregoing at any future time) all or any part of its property or
assets except as permitted in Section 4.12 set forth in Exhibit E
hereto.
9.3 LIMITATION ON DIVIDENDS AND VOLUNTARY PAYMENTS.
Except as permitted in Section 4.06 set forth in Exhibit E
hereto, (a) Americold will not declare or pay any dividends, 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 options or warrants issued by Americold with
respect to its capital stock), or set aside any funds for any of
the foregoing purposes, or permit any of its Subsidiaries to
purchase or otherwise acquire for a consideration any shares of
any class of the capital stock of Americold now or hereafter
outstanding (or any options or warrants issued by Americold with
respect to its capital stock) and (b) Americold will not, and
will not permit any Subsidiary to, make (or give notice that it
intends to make) any voluntary or optional payment or prepayment
on or voluntary or optional redemption 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) any Subordinated Debt.
9.4 [SECTION OMITTED.]
9.5 [SECTION OMITTED.]
9.6 [SECTION OMITTED.]
9.7 TRANSACTIONS WITH AFFILIATES. Americold will not, and
will not permit any Subsidiary to, conduct any business or enter
into any transaction or series of related transactions (including
the purchase, sale, lease, or exchange of any property or the
rendering of any service) with any Affiliate of Americold or any
legal or beneficial owner of 5 percent or more of any class of
capital stock of Americold or with any Affiliate of such owner
(other than a wholly owned Subsidiary of Americold or an employee
stock ownership plan for the benefit of Americold's or a Subsidi-
ary's employees) unless (a) the terms of such business, transac-
tion or series of transactions are (i) set forth in writing and
(ii) as favorable to Americold or such Subsidiary as terms that
would be obtainable at the time for a comparable transaction or
series of related transactions in arm's-length dealings with an
unrelated third Person and (b) the board of directors of
Americold has, by resolution, determined in good faith that such
business or transaction or series of related transactions meets
the criteria set forth in (a) above. This section, however, will
not prohibit any dividend or distribution permitted under
Section 4.06 set forth in Exhibit E hereto.
9.8 [SECTION OMITTED.]
9.9 AVAILABLE CASH FLOW TO PRO FORMA DEBT SERVICE RATIO.
Americold will not permit the ratio of (x) Available Cash Flow
plus Net Cash to (y) Pro Forma Debt Service for any period of
four consecutive fiscal quarters (taken as one accounting period)
to be less than 1.01:1.
9.10 [SECTION OMITTED.]
9.11 SENIOR DEBT TO NET WORTH RATIO. Americold will not
permit the ratio of (x) Consolidated Indebtedness less the aggre-
gate outstanding principal amount of Subordinated Debentures to
(y) Net Worth to exceed (at the end of any fiscal quarter or year
or at any other time U.S. Bank may designate for determining the
ratio) the ratios shown below during the periods shown below:
MAXIMUM
FISCAL YEAR ENDING: RATIO
February 29, 1996 5.10
February 28, 1997 5.05
February 28, 1998 4.85
February 28, 1999 4.55
9.12 [SECTION OMITTED.]
9.13 MODIFICATIONS OF INDEBTEDNESS AND CERTAIN OTHER AGREE-
MENTS, ETC. Americold will not, and will not permit any Subsidi-
ary to, amend, modify, or waive, or permit the amendment,
modification, or waiver of, any provision of the First Mortgage
Bonds or the Subordinated Debentures or any other Indebtedness or
of any agreement (including, without limitation, any purchase
agreement, indenture, loan agreement, guaranty, or security
agreement) relating to any of the foregoing, unless such amend-
ment or modification could not adversely affect the rights of
U.S. Bank, as determined in the sole discretion of U.S. Bank.
9.14 CONDUCT OF BUSINESS. Americold will not and will not
permit its Subsidiaries to engage (directly or indirectly) in any
business other than the business in which, or business which is
substantially related to the business in which, it or its
Subsidiaries are engaged as of the date of this Agreement.
ARTICLE 10
EVENTS OF DEFAULT
Upon the occurrence of any of the following specified
events (each an "Event of Default"):
10.1 PAYMENTS. Americold shall default (a) in the payment
when due of any principal of the Loans or (b) in the payment when
due of any interest on the Loans or any fees or any other amounts
owing hereunder and such default shall continue unremedied for
five or more Business Days; or
10.2 REPRESENTATIONS, ETC. Any material representation,
warranty, or statement made by Americold herein or in any other
Credit Document or in any certificate 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
10.3 COVENANTS. Americold shall default (a) in the due
performance or observance by it of any term, covenant, or
agreement contained in Section 8.1(f) (x) or in Article 9, or (b)
in the due performance or observance by it of any term, covenant,
or agreement (other than those referred to in Sections 10.1 and
10.2 and clause (a) of this Section 10.3) contained in this
Agreement and such default shall continue unremedied for a period
of 30 days after written notice to Americold by U.S. Bank; or
10.4 DEFAULT UNDER OTHER AGREEMENTS. Americold or any
Subsidiary shall default in any payment of principal of or inter-
est on any Indebtedness (other than the Note) in a principal (or
capitalized) amount of at least $5,000,000 beyond the period of
grace (not to exceed 30 days), if any, provided in the instrument
or agreement under which such Indebtedness was created or in the
observance or performance of any agreement or condition relating
to any such Indebtedness (other than a Lease Default or under the
Note) or contained in any instrument or agreement evidencing,
securing, or relating thereto, or any other event will 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, with the giving of notice if required, any
such Indebtedness to become due prior to its stated maturity; or
10.5 BANKRUPTCY, ETC. Americold or any Subsidiary shall
commence a voluntary case concerning itself under the United
States Code entitled "Bankruptcy" as now or hereafter in effect,
or any successor thereto (the "Bankruptcy Code"); or any involun-
tary case is commenced against Americold or any Subsidiary, and
the petition is not controverted within 10 days, or is not
dismissed or stayed 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 Americold or any Subsidiary, or Americold or any
Subsidiary commences any other proceeding under any reorganiza-
tion, arrangement, adjustment of debt, relief of debtors, disso-
lution, insolvency, or liquidation, or similar law of any juris-
diction whether now or hereafter in effect relating to Americold
or any Subsidiary, or there is commenced against Americold or any
Subsidiary any such proceeding which remains undismissed or
unstayed for a period of 60 days, or Americold or any subsidiary
is adjudicated insolvent or bankrupt; or any order of relief or
other order approving any such case or proceeding is entered; or
Americold or any Subsidiary 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 Americold or any Subsidiary makes a general
assignment for the benefit of creditors; or any corporate action
is taken by Americold or any Subsidiary for the purpose of
effecting any of the foregoing; or
10.6 ERISA. (a) A single-employer plan (as defined in
Section 4001 of ERISA) established by Americold or any Subsidiary
shall fail to maintain the minimum funding standard required by
Section 412 of the Code for any plan year or a waiver of such
standard or the extension of any amortization period is sought or
granted under Section 412(d) or (e) of the Code, or (b) a Plan is
or shall have been terminated or the subject of termination
proceedings under ERISA, or an event has occurred entitling the
PBGC to terminate the Plan under Section 4042 (a) of ERISA, or
(c) Americold, any Subsidiary, or an ERISA Affiliate has incurred
or is likely to incur a material liability to or on account of a
termination of or a withdrawal from a Plan or a Predecessor Plan
under Sections 4062, 4063, 4064, 4201, or 4204 of ERISA, and
(d) there shall result from any such event or events either
(i) the provision of security to induce the issuance of a waiver
or extension of any funding requirement under Section 412 or
(ii) liability or a material risk of incurring liability to the
PBGC or a Plan or a trustee appointed under Sections 4042 or 4049
of ERISA which could have a material adverse effect upon the
business, operations, condition (financial or otherwise), or
prospects of Americold or on Americold and its Subsidiaries taken
as a whole, or (e) there shall exist unfunded liabilities under
ERISA in excess of $5,000,000, or (f) there shall exist any
material Reportable Event under ERISA with respect to a plan
having unfunded liabilities in excess of $5,000,000; or
10.7 MORTGAGE AND SECURITY AGREEMENT. The Mortgage and the
Security Agreement shall cease to be in full force and effect in
any material respect (other than by reason of voluntary release
by U.S. Bank), or shall cease to give U.S. Bank the material
Liens, rights, powers, and privileges purported to be created
thereby (including, without limitation, a perfected security
interest in, and Lien on, all of the Collateral), in favor of
U.S. Bank, superior to and prior to the rights of all third
Persons (except title exceptions in the title policies provided
pursuant to Section 8.12) and subject to no other Liens, or
Americold shall default in the due performance or observance of
any term, covenant, or agreement on its part to be performed or
observed pursuant to the Mortgage and the Security Agreement and
such default shall continue beyond any grace or cure period
granted in such agreements; or
10.8 JUDGMENTS. One or more judgments or decrees shall be
entered against Americold or any Subsidiary involving in the
aggregate for Americold and the Subsidiaries a liability (not
paid or fully covered by insurance) of $2,500,000 or more and all
such judgments or decrees shall not have been vacated,
discharged, or stayed or bonded pending appeal within 60 days
from the entry thereof; or
10.9 CHANGE OF CONTROL. There shall occur a Change of
Control of Americold as defined in Exhibit E hereto.
Then, and in any such event, and at any time there-
after, if any Event of Default shall then be continuing, U.S.
Bank may, by written notice to Americold, take any or all of the
following actions, without prejudice to the rights of U.S. Bank
or the holder of the Note to enforce its claims against Americold
(provided, that, if an Event of Default specified in Section 10.5
will occur with respect to Americold, the result which would
occur upon the giving of written notice by U.S. Bank to Americold
as specified in clauses (a) and (b) below, will occur auto-
matically without the giving of any such notice): (a) declare the
Commitment terminated, whereupon the Commitment will forthwith
terminate immediately and any fee accrued pursuant to Article 4
of this Agreement will forthwith become due and payable without
any other notice of any kind; (b) declare the principal of and
any accrued interest in respect of all Loans, and all obligations
owing hereunder, to be, whereupon the same will become, forthwith
due and payable without presentment, demand, protest, or other
notice of any kind, all of which are hereby waived by Americold;
(c) cause U.S. Bank to exercise any rights or remedies under the
Mortgage and the Security Agreement; and (d) direct Americold to
pay (and Americold agrees that upon receipt of such notice it
will pay) to U.S. Bank such additional amount of cash, to be held
as security in the Cash Collateral Account established pursuant
to the Security Agreement, as is equal to the aggregate Stated
Amount of all Letters of Credit then outstanding.
ARTICLE 11
[SECTION OMITTED]
ARTICLE 12
MISCELLANEOUS
12.1 PAYMENT OF EXPENSES, ETC. Americold will: (a) whether
or not the transactions hereby contemplated are consummated, pay
on demand (i) all reasonable out-of-pocket costs and expenses of
U.S. Bank in connection with the 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 its counsel, Miller, Nash,
Wiener, Hager & Carlsen) and of U.S. Bank in connection with any
enforcement of the Credit Documents and the documents and
instruments referred to therein (including, without limitation,
the reasonable fees and disbursements of its counsel, whether at
trial or on appeal) and (ii) all reasonable costs and expenses of
U. S. Bank in connection with the Plan of Reorganization
(including, without limitation, reasonable fees and disbursements
for services of members of its Special Assets Group and the
reasonable fees and disbursements of its counsel, Miller, Nash,
Wiener, Hager & Carlsen), provided that sums to be paid pursuant
to this clause (ii) shall not exceed $25,000; (b) pay on demand
and hold U.S. Bank harmless from and against any and all present
and future stamp and other similar taxes with respect to the
foregoing matters and save U.S. Bank 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 U.S.
Bank) to pay such taxes; and (c) indemnify U.S. Bank, its
officers, directors, employees, affiliates, representatives, and
agents from and hold each of them harmless against and pay on
demand 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 any investigation,
litigation (whether at trial or on appeal), or other proceeding
related to, Americold' s entering into and performance of any
Credit Document, including, without limitation, the reasonable
fees and disbursements of counsel incurred in connection with any
such investigation, litigation (whether at trial or on appeal),
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).
12.2 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, U.S. Bank is hereby authorized at any time or
from time to time, without presentment, demand, protest, or other
notice of any kind to Americold or to any other Person, any such
notice being hereby expressly waived, to set off and to appro-
priate and apply any and all deposits (general or special) and
any other indebtedness at any time held or owing by U.S. Bank to
or for the credit or the account of Americold against and on
account of the Obligations and liabilities of Americold to U.S.
Bank under this Agreement or under any of the other Credit
Documents, 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 U.S. Bank will
have made any demand hereunder and although said Obligations,
liabilities, or claims, or any of them, will be contingent or
unmatured.
12.3 NOTICES. Except as otherwise specified herein, all
notices, requests, demands, or other communications to or upon
the respective parties hereto will be deemed to have been duly
given or made when delivered to the party to which such notice,
request, demand, or other communication is required or permitted
to be given or made under this Agreement or the Note, addressed
to such party at its address set forth on the first page of this
Agreement, or as set forth opposite its signature below, or at
such other address as any of the parties hereto may hereafter
notify the others in writing.
12.4 BENEFIT OF AGREEMENT.
(a) This Agreement will be binding upon and inure to
the benefit of and be enforceable by the respective successors
and assigns of the parties hereto; provided, however, Americold
may not assign or transfer any of its interests hereunder without
the prior written consent of U.S. Bank.
(b) U.S. Bank may at any time enter into participation
agreements with one or more participating lenders whereby U.S.
Bank will allocate certain percentages of the Commitment to these
lenders; provided that Americold will continue to deal with and
report solely to U.S. Bank, as agent for any participating
lenders. Americold hereby grants to each participating lender,
to the extent of its participation in the Loans or Letters of
Credit issued hereunder, the right to set off deposit accounts
maintained by Americold and its Subsidiaries with such lender.
U.S. Bank may assign to one or more financial institutions
reasonably acceptable to Americold all or any part of Loans,
Letters of Credit issued hereunder, and the Commitment, and to
the extent of such assignment (unless otherwise stated therein),
the assignee of such assignment shall, to the fullest extent
permitted by law, have the same rights and benefits under the
Credit Documents as it would have if it were U.S. Bank hereunder.
12.5 NO WAIVER; REMEDIES CUMULATIVE. No failure or delay
on the part of U.S. Bank or any holder of a Note in exercising
any right, power, or privilege hereunder or under any other
Credit Document and no course of dealing between Americold and
U.S. Bank or the holder of the Note will operate as a waiver
thereof; nor will 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 U.S. Bank or
the holder of the Note would otherwise have. No notice to or
demand on Americold in any case will entitle Americold to any
other or further notice or demand in similar or other
circumstances or constitute a waiver of the rights of U.S. Bank
or the holder of the Note to any other or further action in any
circumstances without notice or demand.
12.6 [SECTION OMITTED.]
12.7 CALCULATIONS; COMPUTATIONS. The financial statements
to be furnished to U.S. Bank pursuant hereto will be made and
prepared in accordance with generally accepted accounting
principles consistently applied throughout the period involved
(except as set forth in the notes thereto or as otherwise
disclosed in writing by Americold to U.S. Bank).
12.8 GOVERNING LAW; SUBMISSION TO JURISDICTION;
ARBITRATION.
(a) This Agreement and the rights and obligations of
the parties hereunder and under the Note will be construed in
accordance with and be governed by the laws of the state of
Oregon.
(b) Any legal action or proceeding with respect to
this Agreement or any other Credit Document may be brought in the
courts of Oregon or of the United States of America for the
District of Oregon, and by execution and delivery of this Agree-
ment, Americold hereby accepts for itself and in respect of its
property, generally and unconditionally, the jurisdiction of the
aforesaid courts. Americold 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 thereof by regis-
tered or certified mail, postage prepaid, to Americold at its
address set forth on page 1 of this Agreement, such service to
become effective three days after such mailing. Nothing herein
will affect the right of U.S. Bank or any holder of the Note to
serve process in any other manner permitted by law or to commence
legal proceedings or otherwise proceed against Americold in any
other jurisdiction.
(c) Either U.S. Bank or Americold may require that all
disputes, claims, counterclaims, and defenses ("Claims") relating
in any way to the Credit Documents be settled by binding arbitra-
tion in accordance with the Commercial Arbitration Rules of the
American Arbitration Association and Title 9 of the U.S. Code,
but need not be conducted under the auspices of the American
Arbitration Association. All Claims will be subject to the
statutes of limitation applicable as if they were litigated.
This provision is void if the effect of the arbitration procedure
(as opposed to any Claims of Americold) would be to materially
impair U.S. Bank's ability to realize on any Collateral securing
the Obligations. If arbitration occurs, and each party's claim
is less than $100,000, one neutral arbitrator will decide all
issues; if any party's claim is $100,000 or more, three neutral
arbitrators will decide all issues. All arbitrators will be
active Oregon State Bar members in good standing. All arbitra-
tion hearings will be held in Portland, Oregon. In addition to
all other powers, the arbitrator(s) shall have the exclusive
right to determine all issues of arbitrability. Judgment on any
arbitration award may be entered in any court with jurisdiction.
If either party institutes any judicial proceeding relating to
this Agreement, such action shall not be a waiver of the right to
submit any claim to arbitration. In addition, each has the right
before, during, and after any arbitration to exercise any number
of the following remedies, in any order or concurrently:
(i) setoff; (ii) self-help repossession; (iii) judicial or
nonjudicial foreclosure against real or personal property
collateral; and (iv) provisional remedies, including injunction,
appointment of receiver, attachment, claim and delivery, and
replevin.
12.9 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 will be an original, but all of which will together
constitute one and the same instrument. A complete set of
counterparts will be lodged with Americold and U.S. Bank.
12.10 HEADINGS DESCRIPTIVE. The headings of the several
sections and subsections of this Agreement are inserted for
convenience only and will not in any way affect the meaning or
construction of any provision of this Agreement.
12.11 AMENDMENT OR WAIVER. None of the Credit Documents or
any terms thereof may be changed, waived, discharged, or termi-
nated unless such change, waiver, discharge, or termination is in
writing signed by U.S. Bank.
12.12 SURVIVAL. All indemnities set forth herein
including, without limitation, in Sections 2.10, 2.11, 3.5, and
12.1 will survive the execution and delivery of this Agreement
and the Note and the making and repayment of the Loans.
12.13 AMENDMENT AND RESTATEMENT. This Agreement is
executed for the purpose of amending and restating the Credit
Agreement between U.S. Bank and Americold dated February 3, 1993,
as previously amended, and will become effective when the
conditions set forth in Section 6.1 have been satisfied.
12.14 DISCLOSURE. UNDER OREGON LAW, MOST AGREEMENTS,
PROMISES, AND COMMITMENTS MADE BY A BANK AFTER OCTOBER 3, 1989,
CONCERNING LOANS AND OTHER CREDIT EXTENSIONS WHICH ARE NOT FOR
PERSONAL, FAMILY, OR HOUSEHOLD PURPOSES OR SECURED SOLELY BY THE
BORROWER'S RESIDENCE MUST BE IN WRITING, EXPRESS CONSIDERATION
AND BE SIGNED BY THE BANK TO BE ENFORCEABLE.
IN WITNESS WHEREOF, the parties hereto have caused
their duly authorized officers to execute and deliver this
Agreement as of the date first above written.
UNITED STATES NATIONAL
AMERICOLD CORPORATION BANK OF OREGON
By /s/ Lon V. Leneve By /s/ Janet Jordan
------------------------------ --------------------------
Title V.P. & Treasurer Title Vice President
-------------------------- -----------------------
EXHIBIT A
PROMISSORY NOTE
$27,500,000.00 Portland, Oregon
June 30, 1995
FOR VALUE RECEIVED, AMERICOLD CORPORATION, an Oregon
corporation ("Americold"), hereby promises to pay to the order of
UNITED STATES NATIONAL BANK OF OREGON (the "Bank"), in lawful
money of the United States of America in immediately available
funds, at 555 S.W. Oak Street, Portland, Oregon 97204, or such
other office of the Bank as the Bank may designate, on
February 28, 1999, the principal sum of TWENTY SEVEN MILLION FIVE
HUNDRED THOUSAND AND NO/100 DOLLARS, or, if less, the unpaid
principal amount of all Loans (including payments or
disbursements under any Letters of Credit which become Loans)
made by the Bank pursuant to a Second Amended and Restated Credit
Agreement dated as of June 19, 1995, between Americold and the
Bank (as from time to time in effect, the "Credit Agreement").
Americold promises also to pay interest on the unpaid
principal amount hereof in like money at Bank's office from the
date of any Loans or payments or disbursements under any Letter
of Credit until paid at the rates and at the times provided in
the Credit Agreement.
This note is issued in connection with the amendment
and restatement of a loan facility dating back to July 2, 1987,
is the note referred to in the Credit Agreement, and is entitled
to the benefits thereof and of the Security Agreement and the
Mortgage. This note is subject to voluntary prepayment, in whole
or in part, on the terms and conditions set forth in the Credit
Agreement.
In case an Event of Default shall occur and be
continuing, the principal balance of and accrued interest on this
note may be declared to be due and payable in the manner and with
the effect provided in the Credit Agreement.
Capitalized terms not defined in this note shall have
the respective meanings ascribed thereto in the Credit Agreement.
This note shall be construed in accordance with and be governed
by the laws of the state of Oregon.
Americold hereby waives presentment, demand, protest,
or notice of any kind in connection with this note.
80110-2091/06/15/95 -1- XBA02C61
Americold acknowledges notice of certain prepayment
restrictions in the Credit Agreement.
STATUTORY NOTICE: UNDER OREGON LAW, MOST AGREEMENTS,
PROMISES, AND COMMITMENTS MADE BY LENDER AFTER
OCTOBER 3, 1989, CONCERNING LOANS AND OTHER CREDIT
EXTENSIONS WHICH ARE NOT FOR PERSONAL, FAMILY, OR
HOUSEHOLD PURPOSES OR SECURED SOLELY BY THE BORROWER'S
RESIDENCE MUST BE IN WRITING, EXPRESS CONSIDERATION,
AND BE SIGNED BY LENDER TO BE ENFORCEABLE.
AMERICOLD CORPORATION
By: _______________________________
Lon V. Leneve
Vice President and Treasurer
80110-2091/06/15/95 -2- XBA02C61
EXHIBIT C
_________________________________________________________________
U.S. BANK Borrower's Certificate -
Accounts Receivable and Inventory
_________________________________________________________________
Certificate No. ________ Dated as of _____________
COLLATERAL ACTIVITY
Accounts Receivable
1. Beginning Total Accounts (forward from line 6
of last certificate) $________
2. Less: Accounts Collected per attached report,
from __________ thru __________ -________
3. Less: Other decreases__________________________ -________
4. Plus: New Sales per attached report, from ________
thru ____________ +________
5. Plus: Other increases__________________________ +________
6. Ending Total Accounts $________
7. Less: Ineligible accounts, as of ____________ -________
8. Eligible Accounts (line 6 minus line 7) $________
Inventory
9. Total Inventory Value: as of ____________ $________
10. Adjustments (if applicable) - Describe:_______
____________________________________________ +/-______
11. Eligible Inventory (line 9 minus line 10) $________
LOAN ACTIVITY
12. Borrowing Base-Accounts: ___% of
line 8 $__________
13. Borrowing Base-Inventory: Lesser
of: ___% of line 11, or Inventory
Credit Limit of $_______ + __________
14. Total BORROWING BASE: Lesser of:
sum of line 12 plus line 13, or; Credit
Line Limit of $_______ $_________
15. Less: (if applicable) - Describe:_____________
_____________________________________________ - ________
16. NET BORROWING BASE (line 14 minus 15) $_________
17. Beginning Loan Balance (forward from last
certificate), as of ____________ $__________
18. Less: Account Collections applied
to loan - _________
19. Less: Other funds applied to loan - _________
20. PLUS: NEW ADVANCE REQUESTED + _________
21. New Loan Balance (line 17 minus
lines 18 and 19; plus line 20) as
of ____________ $__________
22. Excess Borrowing Base (line 16 minus line 21) $_________
Borrower hereby submits this report pursuant to the security
agreement or other agreement ("Agreement") held by Bank.
Borrower certifies that this certificate and accompanying
documents are true, complete and correct. In so certifying,
Borrower warrants that all "Eligible Accounts" and "Eligible
Inventory" shown above represent only such accounts and inventory
as may be included in the Borrowing Base pursuant to the
Agreement. Borrower warrants it is not in default under the
Agreement.
Borrower Authorized Signer:
x_____________________________
Date Title
Addendum to Borrower's Certificate Number: _______
_________________________________________________________________
U.S. BANK Borrower's Certificate -
Letters of Credit
_________________________________________________________________
Letter of Credit Activity
1. Letter of Credit Limitation $_________
2. Beginning Total Letters of Credit (forward from
line 5 of last certificate) $_________
3. Less: Letters of Credit Closed per attached
report, from __________ thru __________ - ________
4. Plus: New Letters of Credit per attached report,
from __________ thru __________ + ________
5. Ending Total Letters of Credit (not to exceed
line 1 above) $_________
6. Excess Letter of Credit Margin (difference of
lines 1 and 5) $_________
_________________________________________________________________
RECAP OF LIMITS AND COLLATERAL MARGINS OVER OUTSTANDINGS
Excess of Limits Over Outstandings:
- -----------------------------------
Loan Limit $
Less Outstanding Loans $ _______
Excess of Limit Over Loans $_______
Letter of Credit Limit $
Less Outstanding Letters of Credit $________
Excess Letter of Credit Limit $_______
Combined Excess of Limits Over Outstandings $_________
Excess of Collateral Margin Over Outstandings:
- ----------------------------------------------
Borrowing Base - Loans (line 12 under
Loan Activity) $
Less Outstanding Loans $_______
Excess of Borrowing Base Over Loans $_______
Letter of Credit Limit $
Less Outstanding Letters of Credit $_______
Excess Letter of Credit Limit $_______
Combined Excess of Borrowing Base Over Outstandings $_________
EXHIBIT D
Permitted Filings
1. Filings reflected in Exhibit E to Credit Agreement dated
February 3, 1993.
2. Filings reflected in Unisearch Search Report No. 80110-2091
dated June 12, 1995, a copy of which is attached.
3. Filings in favor of Shawmut Bank Connecticut, National
Association (or its successor) in connection with Amended
and Restated Indenture dated March 9, 1993, as it may be
amended, supplemented or restated from time to time, with
respect to Americold's First Mortgage Bonds.
4. Filings in connection with financing secured primarily by
real property of Americold.
5. Filings evidencing lease transactions.
6. Filings evidencing purchase money security interests in
tangible personal property or fixtures.
7. Other filings subordinate to the filings and liens of United
States National Bank of Oregon which do not cover the
Collateral.
Unisearch Search Report
RE: AMERICOLD CORPORATION Jurisdiction: OREGON Date: 6/12/95
AMERICOLD SERVICES SECRETARY OF STATE Reference
CORPORATION Number:
80110-2091
* UCC Financing Statements - SEE ATTACHED Through:
LISTING AND COPIES 5/24/95
* Tax Liens - NO FINDINGS Through:
5/24/95
* Judgements - Through:
* Pending Suits - Through:
* Other - Through:
* Copies - Through:
Prepared by: DEBORAH BROUSE Account #: 1191
THANK YOU !!!
_________________________________________________________________
* The responsibility for maintaining public records rests with
the filing officer, and Unisearch, Inc. will accept no
liability beyond the exercise of reasonable care.
Page 1
List Debtor Information Uniform Commercial Code (UCC)
Certified Thru: 05/24/1995
N84700 AMERICOLD CORP
DOF: 04/02/1990 Exp: 04/02/1995 File is Expired Info is Verified
P67394 AMERICOLD CORP
DOF: 08/20/1991 Exp: 08/20/1996 File is Active Info is Verified
R30985 AMERICOLD CORP
DOF: 11/03/1992 Exp: 11/03/1997 File is Active Info is Verified
R30986 AMERICOLD CORP
DOF: 11/03/1992 Exp: 11/03/1997 File is Active Info is Verified
S21131 AMERICOLD CORP
DOF: 09/07/1994 Exp: 09/07/1999 File is Active Info is Verified
S31452 AMERICOLD CORP
DOF: 12/05/1994 Exp: 12/05/1999 File is Active Info is Verified
M14382 AMERICOLD CORP
DOF: 07/02/1987 Exp: 07/02/1997 File is Active Info is Verified
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List Debtor Information Uniform Commercial Code (UCC)
Certified Thru: 05/24/1995
M20518 AMERICOLD CORPORATION
DOF: 08/07/1987 Exp: 08/07/1997 File is Active Info is Verified
N07245 AMERICOLD CORPORATION
DOF: 01/09/1989 Exp: 01/09/1999 File is Active Info is Verified
N40102 AMERICOLD CORPORATION
DOF: 07/03/1989 Exp: 07/03/1994 File is Expired Info is Verified
N69199 AMERICOLD CORPORATION
DOF: 12/28/1989 Exp: 12/28/1994 File is Expired Info is Verified
N73869 AMERICOLD CORPORATION
DOF: 01/26/1990 Exp: 01/26/1995 File is Expired Info is Verified
N73870 AMERICOLD CORPORATION
DOF: 01/26/1990 Exp: 01/26/1995 File is Expired Info is Verified
N73871 AMERICOLD CORPORATION
DOF: 01/26/1990 Exp: 01/26/1995 File is Expired Info is Verified
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List Debtor Information Uniform Commercial Code (UCC)
Certified Thru: 05/24/1995
N73872 AMERICOLD CORPORATION
DOF: 01/26/1990 Exp: 01/26/1995 File is Expired Info is Verified
N90600 AMERICOLD CORPORATION
DOF:05/01/1990 Exp:05/01/1995 File is Terminated Info is Verified
N90601 AMERICOLD CORPORATION
DOF:05/01/1990 Exp:05/01/1995 File is Terminated Info is Verified
N90602 AMERICOLD CORPORATION
DOF:05/01/1990 Exp:05/01/1995 File is Terminated Info is Verified
N91991 AMERICOLD CORPORATION
DOF:05/08/1990 Exp:05/08/1995 File is Terminated Info is Verified
P08292 AMERICOLD CORPORATION
DOF: 08/08/1990 Exp: 08/08/2000 File is Active Info is Verified
P08293 AMERICOLD CORPORATION
DOF: 08/08/1990 Exp: 08/08/2000 File is Active Info is Verified
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List Debtor Information Uniform Commercial Code (UCC)
Certified Thru: 05/24/1995
P12639 AMERICOLD CORPORATION
DOF: 09/04/1990 Exp: 09/04/1995 File is Active Info is Verified
P21267 AMERICOLD CORPORATION
DOF: 10/22/1990 Exp: 10/22/1995 File is Active Info is Verified
P21268 AMERICOLD CORPORATION
DOF: 10/22/1990 Exp: 10/22/1995 File is Active Info is Verified
P88339 AMERICOLD CORPORATION
DOF: 01/14/1992 Exp: 01/14/1997 File is Active Info is Verified
P88340 AMERICOLD CORPORATION
DOF: 01/14/1992 Exp: 01/14/1997 File is Active Info is Verified
P91127 AMERICOLD CORPORATION
DOF:02/04/1992 Exp:02/04/1997 File is Terminated Info is Verified
R07800 AMERICOLD CORPORATION
DOF: 05/20/1992 Exp: 05/20/1997 File is Active Info is Verified
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List Debtor Information Uniform Commercial Code (UCC)
Certified Thru: 05/24/1995
R15857 AMERICOLD CORPORATION
DOF: 07/13/1992 Exp: 07/13/1997 File is Active Info is Verified
R20936 AMERICOLD CORPORATION
DOF: 08/18/1992 Exp: 08/18/1997 File is Active Info is Verified
R28898 AMERICOLD CORPORATION
DOF: 10/19/1992 Exp: 10/19/1997 File is Active Info is Verified
R29994 AMERICOLD CORPORATION
DOF: 10/26/1992 Exp: 10/26/1997 File is Active Info is Verified
R56367 AMERICOLD CORPORATION
DOF: 05/20/1993 Exp: 05/20/1998 File is Active Info is Verified
R56368 AMERICOLD CORPORATION
DOF: 05/20/1993 Exp: 05/20/1998 File is Active Info is Verified
R76720 AMERICOLD CORPORATION
DOF: 10/13/1993 Exp: 10/13/1998 File is Active Info is Verified
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List Debtor Information Uniform Commercial Code (UCC)
Certified Thru: 05/24/1995
S02861 AMERICOLD CORPORATION
DOF: 05/04/1994 Exp: 05/04/1999 File is Active Info is Verified
S19209 AMERICOLD CORPORATION
DOF: 08/23/1994 Exp: 08/23/1999 File is Active Info is Verified
S19210 AMERICOLD CORPORATION
DOF: 08/23/1994 Exp: 08/23/1999 File is Active Info is Verified
S19211 AMERICOLD CORPORATION
DOF: 08/23/1994 Exp: 08/23/1999 File is Active Info is Verified
S27795 AMERICOLD CORPORATION
DOF: 10/28/1994 Exp: 10/28/1999 File is Active Info is Verified
S37177 AMERICOLD CORPORATION
DOF: 01/23/1995 Exp: 01/23/2000 File is Active Info is Verified
P11217 AMERICOLD INC
DOF: 08/28/1990 Exp: 08/28/1995 File is Active Info is Verified
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List Debtor Information Uniform Commercial Code (UCC)
Certified Thru: 05/24/1995
R42467 AMERICOLD SERVICES CORPORATION
DOF: 02/08/1993 Exp: 02/08/1998 File is Active Info is Verified
P00511 AMERICOLD TRANSPORTATION SYSTEMS
DOF:06/25/1990 Exp:06/25/1995 File is Terminated Info is Verified
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Display Debtor Filing Information Uniform Commercial Code (UCC)
UCC1 #R42467 This Information is Verified Filing status is Active
Reel and Loc: 871-1908 This Debtor Filed on: 02/08/1993 10:03 am
Debtor Name and Address:
AMERICOLD SERVICES CORPORATION
7007 SW CARDINAL LANE SUITE 135
PORTLAND OR 97224 More Addresses? N
Reel and Loc: 871-1908 Original File Date: 02/08/1993 10:03 am
(#Copies) 4 +(#3's) 0 = 4 Expiration Date: 02/08/1998
Addl Sec Party Info?: N IRS Expiration Date:
Secured Party Name and Address Assignee Name and Address
US NATIONAL BANK CORPORATE BANK DIVBB-1
309 SW SIXTH AVE
PORTLAND OR 97204
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EXHIBIT E
INDENTURE PROVISIONS
CHANGE OF CONTROL: The term "Change of Control" means
the occurrence of any of the following events:
(i) prior to the earlier to occur of (A) the first
public offering (which, for purposes of this definition,
shall mean the sale of shares of common stock of the
relevant entity pursuant to an effective registration
statement under the Securities Act that covers (together
with any such prior effective registrations) not less than
25% of the outstanding shares of common stock of such entity
on a fully diluted basis after giving effect to all such
registrations) of common stock of Parent or (B) the first
public offering of common stock of the Issuer, the Permitted
Holders cease to be the "beneficial owner" (as defined in
Rules 13d-3 and 13d-5 under the Exchange Act, except that a
Person shall be deemed to have beneficial ownership of all
shares that any such Person has the right to acquire,
whether Such right is exercisable immediately or only after
the passage of time), directly or indirectly, of a majority
in the aggregate of the total voting power of the Voting
Stock of the Issuer, whether as a result of issuance of
securities of the Issuer, any merger, consolidation,
liquidation or dissolution of the Issuer, any direct or
indirect transfer of securities by Parent or otherwise (for
purposes of this clause (i) and clause (ii) below, the
Permitted Holders shall be deemed to beneficially own any
Voting Stock of a corporation (the "specified corporation")
held by any other corporation (the "parent corporation") so
long as the Permitted Holders beneficially own (as so
defined), directly or indirectly, in the aggregate a
majority of the voting power of the Voting Stock of the
parent corporation);
(ii) any "Person" (as such term is used in Sections
13(d) and 14(d) of the Exchange Act), other than one or more
permitted Holders, is or becomes the beneficial owner (as
defined in clause (i) above), directly or indirectly, of
more than 30% of the total voting power of the Voting Stock
of the Issuer; PROVIDED, HOWEVER, that the Permitted Holders
beneficially own (as so defined), directly or indirectly, in
the aggregate a lesser percentage of the total voting power
of the Voting Stock of the Issuer than such other Person and
do not have the right or ability by voting power, contract
or otherwise to elect or designate for election a majority
of the Board of Directors of the Issuer (for the purposes of
this clause (ii), such other Person shall he deemed to
beneficially own any Voting Stock of a specified corporation
held by a parent corporation, if such other Person
"beneficially owns" (as so defined), directly or indirectly,
more than 30% of the voting power of the Voting Stock of
such parent corporation and the Permitted Holders
"beneficially own" (as so defined), directly or indirectly,
in the aggregate a lesser percentage of the voting power of
the Voting Stock of such parent corporation and do not have
the right or ability by voting power, contract or otherwise
to elect or designate for election a majority of the Board
of Directors of such parent corporation);
(iii) during any period of two consecutive years,
individuals who at the beginning of such period constituted
the Board of Directors of the Issuer (together with any new
directors whose election by such Board of Directors or whose
nomination for election by the shareholders of the Issuer
was approved by a vote of 66 2/3% of the directors of the
Issuer then still in office who were either directors at the
beginning of such period or whose election or nomination for
election was previously so approved) cease for any reason to
constitute a majority of the Board of Directors of the
Issuer then in office; or
(iv) the Issuer consolidates with or merges with or
into any other Person or conveys, transfers or leases all or
substantially all of its assets to any Person or any Person
consolidates with or merges into the Issuer, in either event
pursuant to a transaction in which either (A) the
outstanding Voting Stock of the Issuer is changed into or
exchanged for Cash, securities or other property (excluding,
however, any such transaction where the outstanding Voting
Stock of the Issuer is changed into or exchanged for Voting
Stock of the surviving or transferee corporation which is
neither Redeemable Stock nor Exchangeable Stock) or (B) the
holders of the Voting Stock of the Issuer immediately prior
to such transaction, together with Kelso & Company and
affiliates of Kelso & Company controlled by or under common
control with Kelso & Company, own, directly or indirectly in
the aggregate, less than 70% of the Voting Stock of the
surviving Person immediately after such transaction.
SECTION 4.06. LIMITATION ON RESTRICTED PAYMENTS. (a)
The Issuer shall not, and shall not permit any subsidiary,
directly or indirectly, to (i) declare or pay any dividend or
make any distribution on or in respect of its Capital Stock
(including any distribution in connection with any merger or
consolidation involving the Issuer) or to the direct or indirect
holders of its Capital Stock (except dividends or distributions
payable solely in its Non-Convertible Capital Stock or in
options, warrants or other rights to purchase its Non-Convertible
Capital Stock and except dividends or distributions payable to
the Issuer or a subsidiary), (ii) purchase, redeem or otherwise
acquire or retire for value any Capital Stock of the Issuer or of
any direct or indirect Parent of the Issuer, (iii) purchase,
repurchase, redeem, defease or otherwise acquire or retire for
value, prior to scheduled maturity, scheduled repayment or
scheduled sinking fund payment any Subordinated Obligations
(other than the purchase, repurchase or other acquisition of
Subordinated Obligations purchased in anticipation of and used
for satisfying a sinking fund obligation, principal installment
or final maturity, in each case due within one year of the date
of acquisition) or (iv) make any Investment in any Affiliate of
the Issuer, other than a Subsidiary that is not a Non-Recourse
Subsidiary or a Person which will become a Subsidiary that is not
a Non-Recourse Subsidiary as a result of any such Investment (any
such dividend, distribution, purchase, redemption, repurchase,
defeasance, other acquisition, retirement or Investment being
hereinafter referred to as a "Restricted Payment") if at the time
the Issuer or such Subsidiary makes such Restricted Payment:
(1) a Default shall have occurred and be continuing
(or would result therefrom);
(2) the Issuer is not able to issue $1.00 of
additional Debt in accordance with the provisions of Section
4.09 (a); or
(3) the aggregate amount of such Restricted Payment
and all other Restricted Payments since the date on which
the Series B Securities were originally issued would exceed
the sum of:
(A) 50% of the Consolidated Net Income accrued
during the period (treated as one accounting period)
from December 1, 1992, to the end of the most recent
fiscal quarter ending at least 45 days prior to the
date of such Restricted Payment (or, in case such
consolidated Net Income shall be a deficit minus 100%
of such deficit) and minus 100% of the amount of any
write-downs, write-offs, other negative revaluations
and other negative extraordinary charges not otherwise
reflected in Consolidated Net Income during such
period;
(B) the aggregate Net Cash Proceeds received by
the Issuer from the issuance or sale of its Capital
Stock (other than Redeemable Stock or Exchangeable
Stock) subsequent to the date on which the Series B
Securities were originally issued (other than an
issuance or sale to a Subsidiary or an employee stock
ownership plan);
(C) the aggregate Net Cash Proceeds received by
the Issuer from the issuance or sale of its Capital
Stock (other than Redeemable Stock or Exchangeable
Stock) to an employee stock ownership plan subsequent
to May 31, 1992, but (if such employee stock ownership
plan incurs any Debt) only to the extent that any such
proceeds are equal to any increase in the Consolidated
Net Worth of the Issuer resulting from principal
repayments made by such employee stock ownership plan
with respect to Debt incurred by it to finance the
purchase of such Capital Stock; and
(D) the amount by which Debt of the Issuer is
reduced on the Issuer's balance sheet upon the
conversion or exchange (other than by a Subsidiary)
subsequent to the date on which the Series B
Securities were originally issued of any Debt of the
Issuer convertible or exchangeable for Capital Stock
(other than Redeemable Stock or Exchangeable Stock) of
the Issuer (less the amount of any Cash, or other
property, distributed by the Issuer upon such
conversion or exchange).
(b) The provisions of Section 4.06(a) shall not
prohibit:
(i) any purchase or redemption of Capital Stock or
Subordinated Obligations of the Issuer made by exchange for,
or out of the proceeds of the substantially concurrent sale
of, Capital Stock of the Issuer (other than Redeemable Stock
or Exchangeable Stock and other than Capital Stock issued or
sold to a Subsidiary or an employee stock ownership plan);
PROVIDED, HOWEVER that (A) such purchase or redemption shall
be excluded in the calculation of the amount of Restricted
Payments made since the date on which the Series B
Securities were originally issued and (B) the Net Cash
Proceeds from such sale shall be excluded from clauses
(3)(b) and (3)(c) of Section 4.06(a);
(ii) any purchase or redemption of Subordinated
Obligations of the Issuer made by exchange for, or out of
the proceeds of the substantially concurrent sale of, Debt
of the Issuer; PROVIDED, HOWEVER, that such purchase or
redemption shall be excluded in the calculation of the
amount of Restricted Payments made since the date on which
the Series B Securities were originally issued;
(iii) any purchase or redemption of Subordinated
Obligations from Net Available Cash to the extent permitted
by Section 4.12; PROVIDED, HOWEVER, that such purchase or
redemption shall be excluded in the calculation of the
amount of Restricted Payments made since the date on which
the Series B Securities were originally issued;
(iv) dividends paid within 60 days after the date of
declaration thereof if at such date of declaration such
dividends would have complied with this Section; PROVIDED,
HOWEVER, that at the time of payment of such dividends, no
other Default shall have occurred and be continuing (or
result therefrom); PROVIDED, FURTHER, HOWEVER, that such
dividends shall be included in the calculation of the amount
of Restricted Payments made since the date on which the
Series B Securities were originally issued;
(v) any repurchase of Capital Stock of the Issuer
after January 1, 1993 pursuant to the terms of the
Stockholders' Agreement from officers and employees (or
their estates) of the Issuer or its Subsidiaries upon death,
disability or termination of employment of such officers and
employees; PROVIDED, HOWEVER, that (A) the aggregate amount
of all such repurchases (excluding repurchases made with
proceeds of life insurance policies maintained by the Issuer
on such employees or officers) in any fiscal year shall not
exceed $500,000; (B) to the extent that the aggregate amount
of such repurchases (excluding repurchases made with
proceeds of life insurance policies maintained by the Issuer
on such employees or officers) in any fiscal year is less
than $500,000, the difference between $500,000 and such
amount may be carried forward and applied to repurchases in
subsequent fiscal years; and (C) all such repurchases shall
be included in the calculation of the amount of Restricted
Payments made since the date on which the Series B
Securities were originally issued;
(vi) Cash dividends paid after January l, 1993 with
respect to the ESOP Preferred Stock; PROVIDED, HOWEVER, that
(A) the aggregate amount of all such dividends paid in any
fiscal year shall not exceed $500,000; (B) to the extent
that the aggregate amount of such dividends paid in any
fiscal year is less than $500,000, the difference between
$500,000 and such amount may be carried forward and applied
to the payment of such dividends in subsequent fiscal years;
and (C) all such dividends shall be included in the
calculation of the amount of Restricted Payments made since
the date on which the Series B Securities were originally
issued;
(vii) Investments in Non-Recourse Subsidiaries, not
to exceed $5,000,000 in the aggregate during the term of
this Indenture; PROVIDED, HOWEVER, that all such Investments
shall be excluded in the calculation of the amount of
Restricted Payments made since the date on which the Series
B Securities were originally issued; or
(viii) Restricted Payments not to exceed $5,000,000
in the aggregate during the term of this Indenture;
PROVIDED, HOWEVER, that all such Restricted Payments shall
be included in the calculation of the amount of Restricted
Payments made since the date on which the Series B
Securities were originally issued.
SECTION 4.12. LIMITATION ON SALES OF ASSETS AND
SUBSIDIARY STOCK. (a) The Issuer shall not, and shall not
permit any Subsidiary to, make any Asset Disposition unless (i)
the Issuer or such Subsidiary receives consideration at the time
of such Asset Disposition at least equal to the fair market
value, as determined in good faith by the Board of Directors
(including a determination as to the value of all non-Cash
consideration), of the shares and assets subject to such Asset
Disposition (or the option price applicable on the date on which
the option is exercised as specified in the purchase options with
respect to the Brooks, Oregon and Watsonville, California
Mortgaged Properties and the purchase options with respect to the
Issuer's Tomah, Wisconsin facility (if such facility becomes a
Mortgaged Property) described in Sections 3.01(e)(ii) and 3.01(g)
in effect as of the date of this Indenture) and at least 90% of
the consideration therefor received by the Issuer or such
Subsidiary is in the form of Cash or Cash equivalents and (ii) an
amount equal to 1OO% of the Net Available Cash from such Asset
Disposition is applied by the Issuer (or such subsidiary, as the
case may be) (A) FIRST, to the extent the Issuer elects (or is
required by the terms of any Senior Debt), to redeem, prepay,
repay or purchase Senior Debt (other than the Securities) or Debt
of a Wholly Owned Subsidiary to the extent the asset disposed of
was previously held by such Wholly Owned Subsidiary (in each case
other than Debt owed to the Issuer or an Affiliate of the Issuer)
within 60 days from the later of the date of such Asset
Disposition or the receipt of such Net Available Cash; (b)
SECOND, to the extent of the balance of such Net Available Cash
after application in accordance with clause (A), to make an Offer
(as defined below) to purchase Securities pursuant to and subject
to the conditions of Section 4.12(b) and to effect any Offer
accepted, and (C) THIRD, to the extent of the balance of such Net
Available Cash after application in accordance with clauses (A)
and (B), to (x) the acquisition by the Issuer or any Wholly Owned
Subsidiary of Tangible Property or (y) the redemption,
prepayment, repayment or purchase of Debt (other than any
Redeemable Stock or Exchangeable Stock) of the Issuer or Debt of
any Subsidiary (other than Debt owed to the Issuer or an
Affiliate of the Issuer), in each case within one year from the
later of the receipt of such Net Available Cash and the date the
Offer described in Section 4.12(b) is consummated; PROVIDED,
HOWEVER, that in connection with any redemption, prepayment,
repayment or purchase of Debt pursuant to clause (A) or (C)
above, the Issuer shall cause the related loan commitment (if
any) to be permanently reduced in an amount equal to the
principal amount so redeemed, prepaid, repaid or purchased.
Notwithstanding the foregoing provisions of this Section but
subject to any provisions of the Investment Agreement regarding
the application of Net Available Cash (as defined in the
Investment Agreement), the Issuer and its subsidiaries shall only
be required to apply Net Available Cash in accordance with this
Section to the extent that the aggregate Net Available Cash from
all Asset Dispositions exceeds $25,000,000. Pending application
of Net Available Cash pursuant to this Section, such Net
Available Cash shall be invested in Permitted Investments.
(b) Subject to Section 4.12(E), to the extent that
there is Net Available Cash from an Asset Disposition remaining
after any elected or required payment of Senior Debt (other than
the Securities) or Debt of a Wholly Owned Subsidiary as described
in Section 4.12(a)(ii)(A), the Issuer will be required to
purchase Securities tendered pursuant to an offer by the Issuer
for the Securities (the "Offer") at a purchase price determined
in accordance with Section 3.01(j), in the case of Series A
Securities, and at a purchase price of 100% of their principal
amount plus accrued interest to the Purchase Date, in the case of
the Series B Securities (subject, in each case, to the right of
Holders of record on the relevant date to receive interest due on
the relevant interest Payment Date), in accordance with the
procedures (including prorating in the event of oversubscription)
set forth in Section 4.12(c). If the aggregate purchase price of
Securities tendered pursuant to the Offer is less than the Net
Available Cash allotted to the purchase of the Securities, the
Issuer shall apply the remaining Net Available Cash in accordance
with Section 4.12 (a)(ii)(C). The Issuer shall not be required
to make an Offer for Securities pursuant to this Section if the
Net Available Cash available therefor (after application of
proceeds as provided in Section 4.12(a)(ii)(A)) is less than
$5,000,000 for any particular Asset Disposition (which lesser
amounts (1) shall not be carried forward for purposes of
determining whether an Offer is required with respect to the Net
Available Cash from any subsequent Asset Disposition and (2)
shall be applied as provided in Section 4.12(a)(ii)(C)).
(c) (1) Subject to Section 4.12(e), promptly, and in
any event within 90 days after the later of the date of each
Asset Disposition as to which the Issuer must apply Net Available
Cash in accordance with Section 4.12(a)(ii) or the receipt of Net
Available Cash therefrom, the Issuer shall be obligated to
deliver to the Trustee and send, by first-class mail to each
Holder, a written notice stating that the Holder may elect to
have his Securities purchased by the Issuer either in whole or in
part (subject to prorationing as hereinafter described in the
event the Offer is oversubscribed) in integral multiples of
$1,000 of principal amount, at the applicable purchase price
specified in Section 4.12(b). The notice containing an Offer
shall specify a purchase date not less than 30 days nor more than
60 days after the date of such notice (the "Purchase Date") and
shall contain information concerning the business of the Issuer
which the Issuer in good faith believes will enable such Holders
to make an informed decision (which at a minimum will include (i)
the most recently filed Annual Report on Form 10-K (including
audited consolidated financial statements) of the Issuer, the
most recent subsequently filed Quarterly Report on Form 10-Q and
any Current Report on Form 8-K of the Issuer filed subsequent to
such Quarterly Report, other than Current Reports describing
Asset Dispositions otherwise described in the offering materials
(or corresponding successor reports), or if the Issuer becomes no
longer subject to the Exchange Act, equivalent information, (ii)
a description of material developments in the Issuer's business
subsequent to the date of the latest of such Reports, and (iii)
if material, appropriate pro forma financial information) and all
instructions and materials necessary to tender securities
pursuant to the Offer, together with the information contained in
clause (3).
(2) Not later than the date upon which written notice
of an Offer is delivered to the Trustee as provided below, the
Issuer shall deliver to the Trustee an Officers' Certificate as
to (i) the amount of the Offer (the "Offer Amount"), (ii) the
allocation of the Net Available Cash from the Asset Dispositions
pursuant to which such Offer is being made and (iii) the
compliance of such allocation with the provisions of Section
4.12(a). On such date, the Issuer shall also irrevocably deposit
with the Trustee or with a paying agent (or, if the Issuer is
acting as its own paying agent, segregate and hold in trust) in
immediately available funds an amount equal to the Offer Amount
to be held for payment in accordance with the provisions of this
Section. Upon the expiration of the period for which the Offer
remains open (the "Offer Period"), the Issuer shall deliver to
the Trustee the Securities or portions thereof which have been
properly tendered to and are to be accepted by the Issuer. The
Trustee shall, on the Purchase Date, mail or deliver payment to
each tendering Holder in the amount of the purchase price. In
the event that the aggregate purchase price of the Securities
delivered by the Issuer to the Trustee is less than the Offer
Amount, the Trustee shall deliver the excess to the Issuer
immediately after the expiration of the Offer Period.
(3) Holders electing to have a Security purchased will
be required to surrender the Security, with an appropriate form
duly completed, to the Issuer at the address specified in the
notice at least ten Business Days prior to the Purchase Date.
Holders will be entitled to withdraw their election if the
Trustee or the Issuer receives not later than three Business Days
prior to the Purchase Date, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the
principal amount of the Security which was delivered for purchase
by the Holder and a statement that such Holder is withdrawing his
election to have such Security purchased. If at the expiration
of the Offer Period the aggregate principal amount of Securities
surrendered by Holders exceeds the Offer Amount, the Issuer shall
select the Securities to be purchased on a pro rata basis in
accordance with the principles set forth in Section 3.04 (with
such adjustments as may be deemed appropriate by the Issuer so
that only Securities in denominations of $1,000, or integral
multiples thereof, shall be purchased). Holders whose Securities
are purchased only in part will be issued new Securities equal in
principal amount to the unpurchased portion of the Securities
surrendered.
(4) At the time the Issuer delivers Securities to the
Trustee which are to be accepted for purchase, the Issuer will
also deliver an Officers' Certificate stating that such
Securities are to be accepted by the Issuer pursuant to and in
accordance with the terms of this Section. A Security shall be
deemed to have been accepted for purchase at the time the
Trustee, directly or through an agent, mails or delivers payment
therefor to the surrendering Holder.
(d) The Issuer shall comply, to the extent applicable,
with the requirements of Section 14(e) of the Exchange Act and
any other securities laws or regulations in connection with the
repurchase of Securities pursuant to this Section. To the extent
that the provisions of any securities laws or regulations
conflict with provisions of this Section, the Issuer shall comply
with the applicable securities laws and regulations and shall not
be deemed to have breached its obligations under this Section by
virtue thereof.
(e) Notwithstanding anything to the contrary contained
in this Section 4.12, (x) so long as Section 6(j) of the
Investment Agreement is in effect, the Issuer shall not sell,
transfer or otherwise dispose of any shares of Capital Stock of
any Restricted Subsidiary (as defined therein) if, after giving
effect to such sale, transfer or disposition, there exists any
Default (as defined therein) and (y) so long as Section 9(a)(4)
of the Investment Agreement is in effect, upon the occurrence of
an Asset Disposition (as defined therein), the Issuer shall apply
to the prepayment of Senior Debt (as defined therein) of the
Issuer an amount equal to the amount of Net Available Cash (as
defined therein), not applied within 360 days of such Asset
Disposition (as defined therein), to the acquisition of Tangible
Property acceptable to the Initial Investor. With respect to any
redemption of Securities pursuant to clause (y), the respective
principal amounts of Series A Securities and Series B Securities
to be redeemed shall be determined pro rata based on the
respective principal amounts of Series A Securities and Series B
Securities Outstanding (and not theretofore called for
redemption) on the date the redemption is to be made, PROVIDED
that no Series B Securities shall be redeemed prior to March __,
1998 pursuant to this paragraph or Section 9(a)(4) of the
Investment Agreement other than pursuant to an accepted Offer.
The redemption price for any Series A Securities redeemed
pursuant to this paragraph or Section 9(a)(4) of the Investment
Agreement will be computed in accordance with the provisions of
Section 3.01(j) and the redemption price for any Series B
Securities so redeemed will be the purchase price specified in
Section 4.12(b).
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