CREDIT AGREEMENT
Dated as of October 30, 1997
among
VORNADO CRESCENT PORTLAND PARTNERSHIP, as Borrower
AMERICOLD CORPORATION, as Borrower and Guarantor
AMERICOLD SERVICES CORPORATION, as Guarantor
and
GOLDMAN SACHS MORTGAGE COMPANY, as Agent and Lender
TABLE OF CONTENTS
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Page
ARTICLE I. DEFINITIONS; PRINCIPLES OF CONSTRUCTION
Section 1.1. Definitions...................................................1
Section 1.2. Principles of Construction...................................12
ARTICLE II. GENERAL
Section 2.1. The Loans....................................................13
Section 2.2. Maturity.....................................................14
Section 2.3. Interest.....................................................14
Section 2.4. Loan Repayment...............................................14
Section 2.5. Payments and Computations....................................15
Section 2.6. Break Funding Costs..........................................16
Section 2.7. Regulatory Change, Etc.......................................16
Section 2.8. Unavailability, Etc..........................................16
Section 2.9. Mitigation; Mandatory Assignment.............................17
Section 2.10. Intentionally Deleted.......................................17
Section 2.11. Intentionally Deleted.......................................17
Section 2.12. Fees .......................................................17
ARTICLE III. CONDITIONS PRECEDENT
Section 3.1. Conditions Precedent to the Loans to be Made on the
Closing Date.................................................18
Section 3.2. Conditions Precedent to All Loans............................20
Section 3.3. Conditions Precedent to the JV Takeout Closing Date..........21
Section 3.4. Conditions Precedent to the Series B Closing Date............21
Section 3.5. Conditions Precedent to the Senior Subordinated
Closing Date.................................................22
ARTICLE IV. REPRESENTATIONS AND WARRANTIES
Section 4.1. Representations and Warranties of the Borrower...............22
Section 4.2. Survival of Representations..................................26
ARTICLE V. AFFIRMATIVE COVENANTS OF BORROWER
Section 5.1. Information Covenants........................................26
Section 5.2. Maintenance of Properties....................................28
Section 5.3. Preservation of Existence and Franchises.....................29
Section 5.4. Books, Records and Inspections...............................29
Section 5.5. Compliance with Law..........................................29
Section 5.6. Insurance....................................................29
Section 5.7. Ownership of Americold.......................................29
Section 5.8. Plan Assets, Etc.............................................29
Section 5.9. Costs of Enforcement.........................................30
Section 5.10. Estoppel Statement..........................................30
Section 5.11. Transaction Covenants.......................................30
Section 5.12. Additional Security; Mortgages..............................32
ARTICLE VI. NEGATIVE COVENANTS
Section 6.1. Indebtedness.................................................32
Section 6.2. Liens .......................................................33
Section 6.3. Nature of Business...........................................33
Section 6.4. Consolidation, Merger, Sale or Purchase of Assets, Etc.......34
Section 6.5. Advances, Investments and Loans..............................34
Section 6.6. Transactions with Affiliates.................................34
Section 6.7. Operating Lease Obligations..................................34
Section 6.8. Sale and Leaseback...........................................35
Section 6.9. Governing Documents..........................................35
Section 6.10. ERISA35
Section 6.11. Distributions; Payment on Subordinated Indebtedness.........35
Section 6.12. Total Indebtedness to Total Capitalization..................36
ARTICLE VII. DEFAULTS
Section 7.1. Events of Default............................................36
Section 7.2. Remedies.....................................................38
ARTICLE VIII. AMERICOLD AND ASC GUARANTY OF JV OBLIGATIONS
Section 8.1. The Guaranty.................................................39
Section 8.2. Obligations Independent......................................39
Section 8.3. Obligations Unconditional....................................39
Section 8.4. Reinstatement................................................40
Section 8.5. Certain Additional Waivers...................................41
Section 8.6. Subordination................................................41
Section 8.7. Remedies.....................................................41
Section 8.8. Continuing Guaranty..........................................41
Section 8.9. Limitation on Effective Date of Guaranty
Under Article VIII...........................................42
ARTICLE IX. ASC GUARANTY OF AMERICOLD OBLIGATIONS
Section 9.1. The Guaranty.................................................42
Section 9.2. Obligations Independent......................................42
Section 9.3. Obligations Unconditional....................................42
Section 9.4. Reinstatement................................................43
Section 9.5. Certain Additional Waivers...................................44
Section 9.6. Subordination................................................44
Section 9.7. Remedies.....................................................44
Section 9.8. Continuing Guaranty..........................................44
ARTICLE X. MISCELLANEOUS
Section 10.1. Survival....................................................45
Section 10.2. Governing Law; Consent to Jurisdiction......................45
Section 10.3. Modification, Waiver in Writing.............................46
Section 10.4. Delay Not a Waiver..........................................46
Section 10.5. Notices.....................................................47
Section 10.6. Trial by Jury...............................................48
Section 10.7. Headings....................................................48
Section 10.8. Severability................................................48
Section 10.9. Preferences.................................................48
Section 10.10. Waiver of Notice...........................................48
Section 10.11. Remedies of Borrower and ASC...............................49
Section 10.12. Expenses; Indemnity........................................49
Section 10.13. Exhibits and Schedules Incorporated........................50
Section 10.14. Offsets, Counterclaims and Defenses........................50
Section 10.15. No Joint Venture or Partnership............................50
Section 10.16. Publicity.................................................50
Section 10.17. Waiver of Marshaling of Assets.............................51
Section 10.18. Waiver of Counterclaim.....................................51
Section 10.19. Conflict; Construction of Documents........................51
Section 10.20. Brokers and Financial Advisors.............................51
Section 10.21. No Third Party Beneficiaries...............................52
Section 10.22. Prior Agreements...........................................52
Section 10.23. Counterparts...............................................52
Section 10.24. Right of Set-Off...........................................52
Section 10.25. Payment of Expenses, Etc...................................53
Section 10.26. Amendments, Waivers and Consents...........................54
Section 10.27. Benefit of Agreement.......................................54
Section 10.28. Confidentiality............................................55
Section 10.29. No Obligations of Goldman, Sachs & Co......................56
Section 10.30. Cooperation................................................56
Section 10.31. No Recourse to Members, Stockholders or Partners of
Joint Venture..............................................56
Section 10.32. Agency.....................................................57
Section 10.33. Reorganization.............................................57
SCHEDULES
Schedule 3.4 - Mortgage Closing Conditions
Schedule 4.1 - Existing Indebtedness
Schedule 6.8 Sale and Leasebacks
EXHIBITS
Exhibit A-1 - Form of Joint Venture Promissory Note
Exhibit A-2 - Form of Americold Promissory Note
Exhibit B - Form of Notice of Borrowing
Exhibit C - Form of Joint Venture Pledge and Security Agreement
Exhibit D - Intentionally Omitted
Exhibit E-1 - Form of Americold Security Agreement
Exhibit E-2 - Form of ASC Security Agreement
Exhibit F - Form of Mortgage
Exhibit G - Terms of Subordination
Exhibit H - Form of Parent Guarantee
THIS CREDIT AGREEMENT, dated as of October 30, 1997, among
Vornado Crescent Portland Partnership, a general partnership (the "Joint
Venture"), and Americold Corporation, an Oregon corporation ("Americold", and
together with Joint Venture, each a "Borrower" and collectively, the
"Borrowers"), Americold Services Corporation, a Delaware corporation ("ASC"),
Goldman Sachs Mortgage Company, a New York limited partnership, as the Lender
(including any assignees pursuant to the terms of this Agreement, the "Lender")
and Goldman Sachs Mortgage Company, as Agent.
All capitalized terms used herein shall have the respective
meanings set forth in Section 1.1 hereof or elsewhere in this Credit Agreement.
W I T N E S S E T H:
WHEREAS, subject to and upon the terms and conditions herein
set forth, the Lender is willing to make available to the Borrowers the credit
facility provided for herein;
NOW, THEREFORE, IT IS AGREED:
ARTICLE I.
DEFINITIONS; PRINCIPLES OF CONSTRUCTION
Section 1.2. Definitions.
For all purposes of this Credit Agreement, except as otherwise
expressly required or unless the context clearly indicates a contrary intent:
"Acquisition" shall mean the acquisition by Borrowers of (i)
securities of a Person in substantially the same business as Borrowers as such
business is conducted on the date hereof or (ii) capital assets to be used in
such business as so conducted.
"Adjusted Consolidated Net Income" of a Person means the
consolidated net income of such Person and its consolidated subsidiaries
determined in accordance with GAAP, adjusted for depreciation and amortization
in a manner appropriate to remove their effect on the calculation of
consolidated net income.
"Adjusted LIBO Rate" means, with respect to each Interest
Period, a rate of interest per annum obtained by dividing (i) the applicable
Base LIBO Rate by (ii) a percentage equal to 100% minus the applicable Reserve
Percentage then in effect.
"Affiliate" means, with respect to any Person, any other
Person directly or indirectly controlling (including, but not limited to, all
partners, directors, officers and members of such Person), controlled by or
under direct or indirect common control with such Person. A Person shall be
deemed to control a corporation, a partnership, a trust or a limited liability
company if such Person possesses, directly or indirectly, the power (i) to vote
10% or more of the securities having ordinary voting power for the election of
directors of such corporation or to vote 10% or more of the partnership, trust
or limited liability company interests of such partnership, trust or limited
liability company, respectively, or (ii) to direct or cause direction of the
management and policies of such corporation, partnership, trust or limited
liability company, whether through the ownership of voting securities, as
managing or general partner, as managing member, by contract or otherwise.
Notwithstanding the foregoing, the Joint Venture shall be deemed to be an
Affiliate of Americold.
"Agent" means Goldman Sachs Mortgage Company, in its capacity
as agent, and any successor agent appointed hereunder.
"Agreement" means this Credit Agreement, as amended,
supplemented or modified from time to time.
"Americold Commitment" means $379,600,000.
"Americold Loan" means each of (i) the Initial Americold Loan,
(ii) the Series B Americold Loans, (iii) the Senior Subordinated Americold Loan
and (iv) the JV Takeout Loan. The Americold Loans outstanding shall not at any
time exceed in the aggregate the Americold Commitment.
"Americold Obligations" shall have the meaning given to such
term in Section 9.1.
"Applicable Margin" means 1.25% per annum from and after the
date hereof through and including April 30, 1998, and, if the Final Maturity
date is extended pursuant to Section 2.2.1, to October 30, 1998, the Applicable
Margin shall mean 1.50% per annum.
"ASC" means Americold Services Corporation, a Delaware
corporation.
"Base LIBO Rate" means the rate of interest per annum
(expressed as a percentage) for deposits in U.S. Dollars for a one (1) month
period that appears on Telerate Page 3750 as of 11:00 a.m., London time, on the
applicable LIBOR Determination Date for the related Interest Reset Date. If such
rate does not appear on Telerate Page 3750 as of 11:00 a.m., London time, on the
applicable LIBOR Determination Date, the Base LIBO Rate shall mean the
arithmetic mean of all offered rates (expressed as a percentage per annum) for
deposits in U.S. Dollars for a one (1) month period that appear on the Reuters
Screen LIBO Page as of 11:00 a.m., London time, on such LIBOR Determination
Date, if at least two such offered rates so appear. If fewer than two such
offered rates appear on the Reuters Screen LIBO Page as of 11:00 a.m., London
time, on the applicable LIBOR Determination Date, the Lender will request the
principal London office of each of four major Reference Banks in the London
interbank market selected by the Lender to provide such Lender's offered
quotation (expressed as a percentage per annum) to prime banks in the London
interbank market for deposits in U.S. Dollars for a one (1) month period as of
11:00 a.m., London time, on such LIBOR Determination Date for amounts comparable
to the then-outstanding principal balance of the Notes and in any event not less
than U.S. $1,000,000. If two or more such offered quotations are so provided,
the Base LIBO Rate will be the arithmetic mean of such quotations. If fewer than
two such quotations are so provided, the Lender will request each of three major
banks in New York City selected by the Lender to provide such bank's rate
(expressed as a percentage per annum) for loans in U.S. Dollars to leading
European banks for a one (1) month period as of approximately 11:00 a.m., New
York City time, on the applicable LIBOR Determination Date for amounts
comparable to the then-outstanding principal balance of the Notes and in any
event not less than U.S. $1,000,000. If two or more such rates are so provided,
the Base LIBO Rate will be the arithmetic mean of such rates. If fewer than two
such rates are so provided, then the Base LIBO Rate will be the Base LIBO Rate
in effect on the preceding Interest Reset Date. To the extent required, the
results reached pursuant to the above terms of this definition shall be rounded
upward to the nearest 1/16th of 1% per annum.
"Base Rate" means, with respect to any Interest Period, the
per annum rate publicly announced by Citibank, N.A. (or its successors) on the
first Business Day of such Interest Period as its base rate on corporate loans.
"Borrower" means each of Americold and Joint Venture, and they
are collectively herein called the "Borrowers".
"Business Day" means any day other than a Saturday, Sunday or
any other day on which national banks in New York are not open for business.
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended, 42 U.S.C. ss. 9601 et seq.
"Claims" shall have the meaning provided in the definition of
"Environmental Claims."
"Closing Date" means October 31, 1997 (or such later date as
the Borrowers may request and is acceptable to the Lender in its sole
discretion) if on such date all conditions precedent set forth in Section 3.1
hereof are satisfied, or waived by the Lender.
"Code" means the Internal Revenue Code of 1986, as amended,
and as it may be further amended from time to time, any successor statutes
thereto, and applicable U.S. Department of Treasury regulations issued pursuant
thereto in temporary or final form.
"Collateral" means, collectively, the Collateral under the
Pledge Agreement, the Security Agreements, the Mortgages and any other document,
agreement or instrument executed from time to time by either Borrower to secure
the Secured Obligations.
"Crescent" means Crescent Real Estate Equities, Inc.
"Default" means the occurrence of any event hereunder or under
any other Loan Document which, but for the giving of notice or passage of time,
or both, would be an Event of Default.
"Default Rate" has the meaning set forth in Section 2.3.2.
"Distribution" has the meaning set forth in Section 6.11.
"Environmental Claims" means any and all administrative,
regulatory or judicial actions, suits, demands, demand letters, claims, liens,
notices of noncompliance or violation, investigations (other than internal
reports prepared by a Borrower or any of its Subsidiaries solely in the ordinary
course of such Person's business and not in response to any third party action
or request of any kind) or proceedings relating to any Environmental Law or any
permit issued, or any approval given, under any such Environmental Law
(hereafter, "Claims"), including, without limitation, (a) any and all Claims by
governmental or regulatory authorities for enforcement, cleanup, removal,
response, remedial or other actions or damages pursuant to any applicable
Environmental Law, and (b) any and all Claims by any third party seeking
damages, contribution, indemnification, cost recovery, compensation or
injunctive relief resulting from alleged injury or threat of injury to health,
safety or the environment relating to any Hazardous Materials.
"Environmental Law" means any applicable Federal, state,
foreign or local statute, law, rule, regulation, ordinance, code and rule of
common law now or hereafter in effect and in each case as amended, and any
legally binding judicial or administrative interpretation thereof, including any
judicial or administrative order, consent decree or judgment, relating to the
environment, health, safety or Hazardous Materials, including, without
limitation, CERCLA; RCRA; the Federal Water Pollution Control Act, as amended,
33 U.S.C. ss. 1251 et seq.; the Toxic Substances Control Act, 15 U.S.C. ss. 7401
et seq.; the Clean Air Act, 42 U.S.C. . ss. 7401 et seq.; the Safe Drinking
Water Act, 42 U.S.C. ss. 3808 et seq.; the Oil Pollution Act of 1990, 33 U.S.C.
ss. 2701 et seq.; and any applicable state and local or foreign counterparts or
equivalents.
"ERISA" has the meaning set forth in Section 4.1(h) hereof.
"ERISA Affiliate" means each person (as defined in Section
3(9) of ERISA) which together with the Borrowers would be deemed to be a member
of the same "controlled group" within the meaning of Section 414(b), (c), (m)
and (o) of the Code.
"Event of Default" has the meaning set forth in Section 7.1
hereof.
"Existing Indebtedness" has the meaning set forth in Section
4.1 hereof.
"Exit Fee" has the meaning set forth in Section 2.12.2.
"Final Maturity Date" means April 30, 1998, unless extended in
accordance with the provisions of Section 2.2.1, in which case the Final
Maturity Date shall mean October 30, 1998.
"First Interest Period" means the period commencing on (and
including) the Closing Date and ending on (but excluding) the first Interest
Payment Date.
"GAAP" means generally accepted accounting principles in the
United States of America, consistently applied, as of the relevant date in
question.
"Goldman" means Goldman Sachs Mortgage Company, a New York
limited partnership.
"Governmental Authority" means any court, board, agency,
commission, office or authority of any nature whatsoever of or for any
governmental unit (federal, state, county, district, municipal, city or
otherwise), whether now or hereafter in existence.
"Guarantor" means Americold and ASC.
"Guaranty Obligations" means any obligations (other than
endorsements in the ordinary course of business of negotiable instruments for
deposit or collection) guaranteeing any Indebtedness, leases, dividends or other
obligations of any other Person in any manner, whether direct or indirect, and
including any obligation, whether or not contingent, (i) to purchase any such
Indebtedness or other obligation or any property constituting security therefor,
(ii) to advance or provide funds or other support for the payment or purchase of
such Indebtedness or obligation or to maintain working capital, solvency or
other balance sheet condition of such other Person (including without limitation
keep well agreements, maintenance agreements, comfort letters or similar
agreement or arrangement), (iii) to lease or purchase property, securities or
services primarily for the purpose of assuring the owner of such Indebtedness or
obligation the payment thereof, or (iv) otherwise assure or hold harmless the
owner of such Indebtedness or obligation against loss in respect thereof.
"Hazardous Materials" means (a) any petroleum or petroleum
products, radioactive materials, asbestos in any form that is or could become
friable, urea formaldehyde foam insulation, transformers or other equipment that
contained, electric fluid containing regulated levels of polychlorinated
biphenyls, and radon gas; (b) any chemicals, materials or substances defined as
or included in the definition of "hazardous substances," "hazardous waste,"
"hazardous materials," "extremely hazardous waste," "restricted hazardous
waste," "toxic substances," "toxic pollutants," "contaminants," or "pollutants,"
or words of similar import, under any applicable Environmental Law; and (c) any
other chemical, material or substance, exposure to which is prohibited, limited
or regulated by any governmental authority pursuant to any applicable
Environmental Law.
"Indebtedness" means, with respect to any Person, without
duplication, the following, whether direct or contingent:
(a)...... all indebtedness for borrowed money or any other
obligation evidenced by a note, bond, debenture or similar instrument;
(b)...... the deferred purchase price of assets or services
which in accordance with GAAP would be shown to be a liability (or on the
liability side of a balance sheet);
(c)...... all Guaranty Obligations;
(d)...... the maximum amount of all letters of credit issued
or acceptance facilities established for the account of such Person and, without
duplication, all drafts drawn thereunder (other than letters of credit (i)
supporting other Indebtedness of the Borrowers or the Guarantor, or (ii) offset
by a like amount of cash or government securities held in escrow by or on behalf
of the issuer thereof to secure such letter of credit and draws thereunder);
(e)...... all capitalized lease obligations;
(f)...... all Indebtedness of another Person secured by any
lien on any property of the Borrowers or the Guarantor, whether or not such
Indebtedness has been assumed;
(g)...... all obligations under take-or-pay or similar
arrangements or under interest rate, currency, or commodities agreements;
(h)...... indebtedness created or arising under any
conditional sale or title retention agreement (other than conditional sale and
title retention agreements entered into in the ordinary course of business for
assets incidental to the management and operation of the Properties); and
(i)...... obligations of such Person with respect to
withdrawal liability to or on behalf of any "multiemployer plan" as defined in
Section 4001(a) of ERISA;
provided, however, that Indebtedness shall not include (i) current accounts
payable (other than for borrowed money) incurred in the ordinary course of
business; provided that all such accounts payable shall constitute Indebtedness
if not paid when due (or in conformity with customary trade terms) and (ii)
indemnification, recourse carve-out and similar contingent obligations which are
not assurances of payment of the items described in subclauses (a) through (i)
of this definition.
"Indemnitee" means Lender, its officers, directors, employees,
representatives and agents.
"Initial Americold Loan" means the Loan to Americold to be
made on the Closing Date in the principal amount of $20,000,000.
"Interest Payment Date" means the first (1st) day of each
calendar month, or, if in any month such first (1st) day is not a Business Day,
then the Interest Payment Date for such month shall be the first Business Day
thereafter, provided that the first Interest Payment Date shall be December 1,
1997.
"Interest Period" means (i) the First Interest Period and (ii)
each successive period beginning on (and including) the preceding Interest
Payment Date and ending on (but excluding) the next succeeding Interest Payment
Date.
"Interest Reset Date" means the first day of each Interest
Period.
"Joint Venture" means Vornado Crescent Portland Partnership, a
general partnership, of which Portland Parent, Inc., a Delaware corporation, is
a general partner.
"JV Commitment" means $25,000,000.
"JV Loan" means the Loan made to Joint Venture on the Closing
Date.
"JV Mandatory Prepayment" means the mandatory repayment to be
made by Joint Venture pursuant to Section 2.4.3(b) in the amount of the then
outstanding amount of the JV Loan.
"JV Obligations" has the meaning set forth in Section 8.1
hereof.
"JV Takeout Closing Date" means the date on which the JV
Takeout Loan is to be made.
"JV Takeout Loan" means the Loan made to Americold
simultaneously with the JV Mandatory Prepayment and shall be in the amount of
the then outstanding principal amount of the JV Loan.
"Lender" means Goldman Sachs Mortgage Company and includes any
other Person who becomes a lender pursuant to the provisions of Section 10.27.
"LIBOR Business Day" means a Business Day on which United
States dollar deposits may be dealt in on the London interbank market and on
which commercial banks and foreign exchange markets are open in London.
"LIBOR Determination Date" means, with respect to each
Interest Period, the second LIBOR Business Day preceding the Interest Reset
Date.
"Lien" means any mortgage, pledge, hypothecation, assignment,
security interest, encumbrance, lien (statutory or otherwise), or charge of any
kind (including any agreement to give any of the foregoing, any conditional sale
or other title retention agreement, any financing or similar statement or notice
perfecting a security interest under the Uniform Commercial Code as adopted and
in effect in the relevant jurisdiction, or other similar recording or notice
statute, and any lease in the nature thereof).
"Loan" shall mean the JV Loan and the Americold Loans made
pursuant to Section 2.1 hereof which shall in the aggregate not exceed the Total
Commitment and shall be evidenced by the Notes of the Joint Venture and
Americold, respectively.
"Loan Closing Date" means each of the Closing Date, each
Series B Closing Date, the JV Takeout Closing Date and the Senior Subordinated
Closing Date.
"Loan Documents" means, collectively, this Credit Agreement,
the Notes and the Pledge Agreement (including any stock power and financing
statements executed and delivered in connection therewith), and the Security
Agreements and the Parent Guarantees as well as all other documents executed
and/or delivered in connection with the Loans or hereafter delivered by or on
behalf of each of the Borrowers, ASC or a Parent Guarantor pursuant to the
requirements hereof or of any other Loan Document, including, without
limitation, any Mortgages from and after the delivery thereof.
"Material Adverse Change" means (i) a material adverse effect
on the rights or remedies of the Lender or on the ability of either Borrower to
perform its obligations to the Lender under this Credit Agreement or any other
Loan Document or (ii) a material adverse effect on the performance, business,
operations, property, assets, liabilities, condition (financial or otherwise) or
prospects of either Borrower or the Borrowers and their Subsidiaries taken as a
whole.
"Merger Agreement" means the Agreement and Plan of Merger
among Vornado Realty Trust, Portland Parent, Inc., Portland Storage Acquisition
Co. and Americold, dated as of September 26, 1997.
"Mortgage Closing Conditions" means the conditions set forth
on Schedule 3.4 hereto.
"Mortgage Indenture" means the Amended and Restated Indenture
dated as of March 9, 1993, as amended between Americold, as Issuer, and Fleet
National Bank (formerly known as Shawmut Bank Connecticut), as Trustee.
"Mortgages" means recourse mortgages on the Properties that
constitute real property, substantially in the form of Exhibit F attached
hereto, and security agreements, pledge agreements or other appropriate
documents creating security in the case of Properties that do not constitute
real property, in each case in form and substance reasonably satisfactory to the
Lender and securing the Secured Obligations delivered from time to time under
this Credit Agreement.
"Notes" means (a) the promissory notes of Americold and (b)
the promissory note of Joint Venture in favor of the Lender evidencing the
Americold Loans and the JV Loan, respectively, and provided in accordance with
Section 2.1.3 hereof, as such promissory notes may be amended, modified,
supplemented or replaced from time to time.
"Notice" has the meaning set forth in Section 6.1(b).
"Notice of Borrowing" means a Notice of Borrowing,
substantially in the form attached hereto as Exhibit B.
"Officer's Certificate" of a Borrower means a certificate made
by an individual authorized to act on behalf of such Borrower and, to the extent
applicable, any constituent Person with respect to Borrower. Without limiting
the foregoing, if the individual signing the certificate is doing so on behalf
of a corporation, then such individual shall hold the office of President, Vice
President or Chief Financial Officer (or the equivalent) with respect to such
corporation.
"Parent Guarantee" shall mean a Parent Guarantee,
substantially in the form of Exhibit H attached hereto) to be entered into by
each real estate investment trust and its related operating partnership on a
joint and several basis that directly or indirectly owns Americold.
"Parent Guarantor" shall mean each real estate investment
trust and the related operating partnership party to a Parent Guarantee.
"Permitted Investments" means cash, U.S. Government
Securities, U.S. Dollar ($) time deposits, certificates of deposit and banker's
acceptances, repurchase obligations for underlying securities of the types
described above, repurchase agreements relating to the foregoing, commercial
paper the issuers of which have a short-term credit rating of at least A-1
and/or P-1 or the equivalent from a Rating Agency, and investments and money
market funds substantially all of whose assets are comprised of securities of
the types described above.
"Permitted Liens" means (i) Liens created by, under or in
connection with this Credit Agreement or the other Loan Documents or the
Mortgages, if any, in favor of the Lender, (ii) Liens for taxes and other
charges not yet due or Liens for taxes being contested in good faith by
appropriate proceedings for which adequate reserves have been established in
accordance with GAAP (and as to which the property subject to such Lien is not
yet subject to foreclosure, sale or loss on account thereof), (iii) Liens in
respect of property imposed by law arising in the ordinary course of business
such as materialmen's, mechanic's, warehousemen's, workman's compensation and
other like Liens, provided that such Liens secure only amounts not yet due and
payable or amounts being contested in good faith by appropriate proceedings for
which adequate reserves have been established (and as to which the property
subject to such lien is not yet subject to foreclosure, sale or loss on account
thereof), (iv) pledges or deposits made to secure payment under worker's
compensation insurance, unemployment insurance, pensions, social security
programs, public liability laws or similar legislation, (v) Liens arising from
good faith deposits in connection with or to secure performance of tenders,
statutory obligations, surety and appeal bonds, bids, leases, contracts,
performance and return-of-money bonds and other similar obligations incurred in
the ordinary course of business (other than obligations in respect of the
payment of borrowed money), (vi) easements, rights-of-way, restrictions
(including zoning restrictions), defects or irregularities in title and other
similar charges or encumbrances not, in any material respect, interfering with
the ordinary conduct of business at such Property in a manner, individually or
taking into account similar interference at other Properties, reasonably likely
to have a Material Adverse Change, (vii) leases or subleases granted to others,
whether existing now or hereafter entered into, in the ordinary course of
business not interfering in any material respect with the business or operations
of the Borrower or any of its Subsidiaries, (viii) any attachment or judgment
lien, unless the judgment it secures shall not, within thirty (30) days after
the entry thereof, have been discharged or execution thereof stayed pending
appeal, or shall not have been discharged within thirty (30) days after the
expiration of any such stay, and (ix) any mortgage or security agreement in
favor of the Agent securing the Secured Obligations.
"Person" means any individual, sole proprietorship,
corporation, general partnership, limited partnership, limited liability company
or partnership, joint venture, association, joint stock company, bank, trust,
estate, unincorporated organization, any federal, state, county or municipal
government (or any agency or political subdivision thereof), endowment fund or
any other form of entity.
"Plan" means any multiemployer or single-employer plan as
defined in Section 4001 of ERISA, which is maintained by a Borrower, for
employees of such Borrower, any Subsidiary or an ERISA Affiliate.
"Plan Assets" means such term within the meaning and as
defined in the Department of Labor Regulation 29 CFR ss. 2510.3-101, as amended,
and the advisory opinions and rulings issued thereunder.
"Pledge Agreement" means the Pledge and Security Agreement to
be entered into between Joint Venture, as pledgor thereunder, and the Agent,
substantially in the form of Exhibit C attached hereto, as it may be amended,
supplemented or modified from time to time.
"Properties" means the assets, properties, rights, contracts
and other interests owned by either of the Borrowers.
"Rating Agency" means each of Standard & Poor's Ratings Group,
a division of McGraw-Hill, Inc., Moody's Investors Service, Inc., or any other
nationally-recognized statistical rating agency which has been approved by the
Lender.
"RCRA" shall mean the Resource Conservation and Recovery Act,
as amended, 42 U.S.C.ss. 6901 et seq.
"Reference Bank" means each of Barclays Bank, plc, The Bank of
Tokyo, Ltd., National Westminster Bank, plc and Bankers Trust Company or any
substitute reference bank appointed by the Lender which (i) is a leading bank
engaged in transactions in Eurodollar deposits in the international Eurocurrency
market, (ii) has a place of business in London, England and (iii) whose
quotations appear on page 3750 of the Telerate screen on the relevant LIBOR
Determination Date.
"Regulation D, G, T, U, or X" means, respectively, Regulation
D, G, T, U and X 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.
"Regulatory Change" means any change after the date of this
Credit Agreement (or with respect to any assignee hereunder, after the date such
assignee becomes a Lender) in federal, state or foreign laws or regulations or
the adoption or the making, after such date, of any interpretations, directives
or requests applying to a class of Lenders or companies controlling Lenders,
including a Lender or any company controlling a Lender, of or under any federal,
state or foreign laws or regulations (whether or not having the force of law) by
any court or governmental or monetary authority charged with the interpretation
or administration thereof.
"Reserve Percentage" means, for any day, the stated maximum
rate (expressed as a decimal) in effect on such day at which reserves (including
any marginal, supplemental or emergency reserves) are required to be maintained
under Regulation D by a member bank of the Federal Reserve System against
"Eurocurrency liabilities" (as such term is used in Regulation D) but without
benefit of or credit for proration, exemptions or offsets that might otherwise
be available to such member bank from time to time under Regulation D. Without
limiting the effect of the foregoing, the reserve percentage shall reflect any
other reserves required to be maintained by such member bank against (i) any
category of liabilities which includes deposits by reference to which the
Adjusted LIBO Rate for the Loan is to be determined or (ii) any category of
extension of credit or other assets that includes the Loan, but not including
any risk-based or other capital requirements relating to extensions of credit.
The Reserve Percentage shall be expressed in decimal form and rounded upward, if
necessary, to the nearest 1/100th of one percent, and shall include marginal,
emergency, supplemental, special and other reserve percentages. The parties
hereto acknowledge that, as of the Closing Date, the Reserve Percentage is zero.
"Required Appraisals" shall mean real estate appraisals
satisfying the requirements set forth in 12 C.F.R., Part 34 Subpart C, or any
successor or similar statute, rule, regulation, guideline or order.
"Reuters Screen LIBO Page" means the display designated as the
"LIBO" page on the Reuters Monitor Money Rates Service (or such other page as
may replace the LIBO page on the service for the purpose of displaying interbank
rates from London in U.S. Dollars).
"Secured Obligations" means the outstanding principal amount
set forth in, and evidenced by, the Notes, together with all interest accrued
and unpaid thereon (including interest accruing after the date of the filing of
any petition under applicable bankruptcy law whether or not such interest is
enforceable) and all other sums (including indemnification payments, tax gross
up payments and break funding payments) due to the Lender in respect of the
Loans, including any sums due under the Notes, this Credit Agreement, the Pledge
Agreement, each Security Agreement or any other Loan Document.
"Securities Act" means the Securities Act of 1933, as amended.
"Security Agreement" means the Security Agreements to be
entered into (i) between Americold and the Agent, substantially in the form of
Exhibit E-1 hereto and (ii) between ASC and the Agent, substantially in the form
of Exhibit E-2 hereto.
"Senior Subordinated Americold Loan" means the Loan to
Americold to be made to fund the Senior Subordinated Tender and the Senior
Subordinated Defeasance.
"Senior Subordinated Closing Date" means the date on which the
Senior Subordinated Americold Loan is to be made.
"Senior Subordinated Defeasance" has the meaning as set forth
in the definition of Transaction contained herein.
"Senior Subordinated Indenture" means the Indenture dated as
of April 9, 1996 between Americold and United States Trust Company of New York,
as Trustee.
"Senior Subordinated Notes" means the 12.875% Senior
Subordinated Notes due 2008, issued by Americold under the Senior Subordinated
Indenture.
"Senior Subordinated Tender" shall have the meaning provided
in the definition of Transaction.
"Series A Notes" means the 11.45% First Mortgage Bonds,
Series, Due 2002, issued by Americold under the Mortgage Indenture.
"Series A Redemption" shall have the meaning provided in the
definition of Transaction contained herein.
"Series B Americold Loans" means the Series B Tender Americold
Loan and the Series B Redemption Americold Loan.
"Series B Redemption Americold Loan" means the Loan to
Americold to fund the Series B Redemption.
"Series B Tender Americold Loan" means the Loan to Americold
to fund the Series B Tender,
"Series B Closing Dates" means each date on which a Series B
Americold Loan is to be made.
"Series B Notes" means the 11.50% First Mortgage Bonds, Series
B, Due 2005, issued by Americold under the Mortgage Indenture.
"Series B Redemption" has the meaning as set forth in the
definition of Transaction contained herein.
"Series B Redemption Closing Date" shall mean the date on
which the Series B Redemption Americold Loan shall be made.
"Series B Tender" shall have the meaning provided in the
definition of Transaction contained herein.
"Series B Tender Closing Date" shall mean the date on which
the Series B Tender Loan shall be made.
"Subsidiary" means (i) any corporation more than 50% of whose
stock of any class or classes having by the terms thereof ordinary voting power
to elect a majority of the directors of such corporation (irrespective of
whether or not at the time, any class or classes of such corporation shall have
or might have voting power by reason of the happening of any contingency) is at
the time owned by such Person directly or indirectly through Subsidiaries, and
(ii) any partnership, association, trust, joint venture or other entity in which
such Person directly or indirectly through Subsidiaries has more than 50% equity
interest at any time.
"Telerate Page 3750" means the display designated as "Page
3750" on the Dow Jones Telerate Service (or such other page as may replace Page
3750 on that service or such other service as may be nominated by the British
Bankers' Association as the information vendor for the purpose of displaying
British Bankers' Association Interest Settlement Rates for U.S. Dollar
deposits).
"$34 Million Credit Documents" means the documents evidencing
the Indebtedness described in Part A of Schedule 4.1 hereto.
"Total Commitment" means $379,600,000.
"Transaction" shall mean (i) the redemption of all of the
outstanding Series A Notes to occur simultaneously with the closing on the
Closing Date (the "Series A Redemption"); (ii) the tender offer/consent
solicitation for all of the outstanding Series B Notes pursuant to which, among
other things, all operating covenants included in the Mortgage Indenture shall
have been effectively removed (the "Series B Tender"); (iii) the redemption of
those Series B Notes remaining outstanding upon the consummation of the Series B
Tender (the "Series B Redemption"); (iv) the tender offer/consent solicitation
for the Senior Subordinated Notes which solicitation shall include solicitation
of consent for the effective removal of all operating covenants which can be
removed by other than unanimous consent and any requirement that funds deposited
to defease the Senior Subordinated Notes be on deposit with the trustee under
the Senior Subordinated Indenture for any period of time in order for the
defeasance to become effective (the "Senior Subordinated Tender"); (v) the
defeasance (pursuant to the covenant, as compared to legal, defeasance
provisions) of those Senior Subordinated Notes remaining outstanding upon the
consummation of the Senior Subordinated Tender (the "Senior Subordinated
Defeasance"); and (vi) the funding of the JV Takeout Loan and JV Mandatory
Prepayment.
"U.S. Government Securities" means securities (including
strips) evidencing an obligation to pay principal and interest in a full and
timely manner that are (x) direct obligations of the United States of America
for the payment of which its full faith and credit is pledged or (y) obligations
of a Person controlled or supervised by and acting as an agency or
instrumentality of and guaranteed as a full faith and credit obligation by the
United States of America, which in either case are not callable or redeemable at
the option of the issuer thereof (including a depository receipt issued by a
bank (as defined in Section 3(a)(2) of the Securities Act) as custodian with
respect to any such securities or a specific payment of principal of or interest
on any such securities held by such custodian for the account of the holder of
such depository receipt, provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to the
holder of such depository receipt from any amount received by the custodian in
respect of the securities or the specific payment of principal of or interest on
the securities evidenced by such depository receipt).
"Up Front Fee" has the meaning set forth in Section 2.12.1.
"URS" means URS Logistics, Inc., a Delaware corporation.
"Vornado" means Vornado Realty Trust, a Maryland real estate
investment trust.
Section 1.2. Principles of Construction.
All references to sections, schedules and exhibits are to
sections, schedules and exhibits in or to this Credit Agreement unless otherwise
specified. Unless otherwise specified, the words "hereof", "herein" and
"hereunder" and words of similar import, when used in this Credit Agreement,
shall refer to this Credit Agreement as a whole and not to any particular
provision of this Credit Agreement. The words "includes", "including" and
similar terms shall be construed as if followed by the words "without
limitation". Unless otherwise specified, all meanings attributed to defined
terms herein shall be equally applicable to both the singular and plural forms
of the terms so defined. All accounting terms not specifically defined herein
shall be construed in accordance with GAAP, as may be modified herein.
ARTICLE II.
GENERAL
Section 2.1. The Loans.
2.1.1....Commitments. (a) The Lender will make the JV Loan to
Joint Venture on the Closing Date in an amount equal to the JV Commitment, upon
satisfaction of the conditions set forth in Section 3.1.
(b).....The Lender shall make the following Americold Loans
on the following dates subject to the satisfaction or waiver of the conditions
in Article III to be met by such date: (i) the Initial Americold Loan shall be
made on the Closing Date in the amount of $20,000,000; (ii) the Series B Tender
Americold Loan shall be made on the Series B Tender Closing Date; (iii) the
Series B Redemption Loan shall be made on the Series B Redemption Date; (iv) the
Senior Subordinated Americold Loan shall be made on the Senior Subordinated
Closing Date; and (v) the JV Takeout Loan shall be made on the JV Takeout
Closing Date in the amount of $25,000,000; provided, however, that if, after
giving effect to any Loan to be made pursuant to clauses (ii), (iii) or (iv),
Americold would not be in compliance with the provisions of Section 6.12
(determined without giving effect to any Parent Guarantee), Lender shall not be
obligated to make such Loan unless (x) Parent Guarantors shall have delivered to
Agent Parent Guarantees guaranteeing a sufficient portion of the Loans so that,
after giving effect thereto, Americold would be in compliance with the
provisions of Section 6.12 and (y) Parent Guarantors shall have delivered to
Agent opinions of counsel as to such matters as Agent shall reasonably request.
(c)......The aggregate principal amount of the JV Loan and the
Americold Loans made shall not exceed the Total Commitment.
(d)......The Lender shall not be obligated to make any Loan
after April 30, 1998.
2.1.2....Disbursement to Borrower. (a) Joint Venture may
request and receive only one borrowing hereunder in respect of the JV Loan.
Joint Venture shall receive the JV Loan upon the closing on the Closing Date, in
accordance with the provisions of the Credit Agreement. Any amount borrowed and
repaid hereunder in respect of the JV Loan may not be reborrowed.
(b)...Americold may request and Lender shall make available
the prescribed amount of each of the Americold Loans on the date specified in
each Notice of Borrowing no later than 12:00 noon (New York time). Each of the
Americold Loans shall consist of only one borrowing. Any amount borrowed and
repaid hereunder in respect of any Americold Loan may not be reborrowed.
2.1.3....The Notes. (a) The Lender's JV Loan shall be
evidenced by a duly executed promissory note of Joint Venture to the Lender in
the principal amount of the JV Commitment and shall be substantially in the form
of Exhibit A-1 hereto.
(b)...The Lender's Americold Loans shall be evidenced by a
duly executed promissory note of Americold to the Lender in the principal amount
of the Lender's Americold Commitment and shall be substantially in the form of
Exhibit A-2 hereto. The Lender is authorized to set forth on the reverse of such
Note the outstanding amount of each Americold Loan but the failure to do so
shall not affect the obligation of Americold to repay such Loans.
(c)......The Notes shall be subject to repayment as provided
in Section 2.4 hereof, shall be entitled to the benefits of this Credit
Agreement and shall be secured by the Pledge Agreement, the Security Agreements,
the Mortgages, if any, and the other Loan Documents.
2.1.4....Use of Proceeds of Loan. (a) Joint Venture shall use
the proceeds of the JV Loan to effect the Series A Redemption on the Closing
Date. (b) Americold shall use the proceeds of the Americold Loans to effect the
Transaction, including to effect, together with Joint Venture, the Series A
Redemption.
Section 2.2. Maturity.
2.2.1....Maturity Date. The Loans shall be due and payable on
the Final Maturity Date. The Final Maturity Date may be extended from April 30,
1998 to October 30, 1998 if the following conditions are satisfied: (a) the
Borrowers shall have provided to the Lender on or before April 1, 1998 a written
notice of extension; and (b) on April 30, 1998, no Default or Event of Default
shall have occurred and be continuing, and the Borrowers shall have delivered to
the Lender an Officer's Certificate certifying thereto.
2.2.2....Payment. Each Borrower agrees to pay all outstanding
principal amounts under such Borrower's Loans, together with all accrued but
unpaid interest thereon and all other amounts owing from such Borrower to the
Lender and under the other Loan Documents, on the Final Maturity Date.
Section 2.3. Interest.
2.3.1....Interest. Subject to Sections 2.7 and 2.8, the
principal balance outstanding under each Loan from time to time shall bear
interest at a per annum rate equal to the Adjusted LIBO Rate from time to time
as established hereunder, plus the Applicable Margin. The Base LIBO Rate and
Adjusted LIBO Rate for each Interest Period shall be set on each LIBOR
Determination Date preceding such Interest Period. Accrued interest shall be
payable in arrears on each Interest Payment Date.
2.3.2....Default Rate. Notwithstanding the foregoing, upon the
occurrence and during the continuance of an Event of Default of the type
described in Section 7.1(a) (including as a result of a failure to make any
required prepayment), the entire principal of and interest on the Loans shall
bear interest, payable on demand, at a rate equal to the higher of (i) three
percent (3%) per annum in excess of the rate otherwise applicable hereunder and
(ii) Base Rate (the "Default Rate"). Payment or acceptance of the increased
rates provided for in this Subsection 2.3.2 is not a permitted alternative to
timely payment or full performance by Borrower and shall not constitute a waiver
of any Default or Event of Default or an amendment to this Credit Agreement or
any other Loan Document and shall not otherwise prejudice or limit any rights or
remedies of the Lender.
Section 2.4. Loan Repayment.
2.4.1....Voluntary Prepayments. Subject to Section 2.4.2, (i)
Joint Venture shall have the right to prepay the JV Loan and (ii) Americold
shall have the right to prepay any or all of the Americold Loans at any time in
whole or in part without premium or penalty, but Joint Venture and Americold
shall be required to make any payment due under Section 2.6.
2.4.2....Generally; Notice Required. Other than with respect
to a payment (at the Final Maturity Date or otherwise) or prepayment of the
Loans on an Interest Payment Date where a Borrower has irrevocably notified the
Lender in writing that it is making such payment or prepayment by at least 12:00
noon, New York time, at least three (3) Business Days prior to such Interest
Payment Date, such Borrower shall pay the breakage costs provided for in Section
2.6 hereof as to that portion of its Loan paid or prepaid (which breakage costs
shall be calculated for a period equal to the entire Interest Period which
follows such Interest Payment Date). All prepayments of principal shall include
the accrued but unpaid interest on the principal amount prepaid.
2.4.3...Mandatory Prepayments. (a) If at any time when a
Parent Guarantee is in effect, the rating assigned to the long term unsecured
and noncredit enhanced debt of the real estate investment trust party thereto
shall fail to be rated both (x) at least BBB- by Standard & Poor's Ratings
Group, a division of MeGraw-Hill, Inc. and (y) at least Baa3 by Moody's
Investors Service, Inc., Americold shall within three (3) Business Days after
such failure prepay the Loans by an amount equal to the maximum principal amount
guaranteed pursuant to such Parent Guarantor's Parent Guarantee.
(b)...Joint Venture shall be obligated to prepay the entire
principal amount of the JV Loan on the earliest day on which Americold shall be
permitted by the terms, provisions and covenants of the Mortgage Indenture and
the Senior Subordinated Indenture to incur additional Indebtedness equal to the
full amount of the JV Takeout Loan.
Section 2.5. Payments and Computations.
2.5.1...Making of Payments. All payments hereunder or under
any other Loan Document shall be made to the Lender in U.S. dollars in
immediately available funds to the account of the Lender designated below its
signature hereon (or to such other account as the Lender may instruct the
Borrower in writing at least two Business Days prior to the applicable payment
date) no later than 12:00 noon (New York time) on the date when due. Payments
received after such time shall be deemed to have been received on the next
succeeding Business Day. Whenever any payment hereunder shall be stated to be
due on a day which is not a Business Day, the due date thereof shall be extended
to the next succeeding Business Day and shall include interest and fees for the
period of such extension. Interest on a Loan shall accrue from and include the
date of such Loan, but shall exclude the date of payment. Unless the Lender
shall have received notice from Borrower prior to the date on which any payment
is due to the Lender hereunder that such Borrower will not make such payment in
full, the Lender may assume that such Borrower has made such payment in full to
the Lender on such date.
2.5.2...Computations. Interest payable on the Loans shall be
computed on the basis of the actual number of days elapsed in the period in
question (i.e., with respect to the interest due on a given Interest Payment
Date, from and including the date of a Loan or the last Interest Payment Date,
as applicable, to but excluding the current Interest Payment Date) over a year
of 360 days.
Section 2.6. Break Funding Costs.
Each Borrower agrees that it will reimburse the Lender on
demand for any loss incurred or to be incurred by the Lender in the reemployment
of the funds released by any prepayment or repayment (other than on the Final
Maturity Date or on an Interest Payment Date where the Lender has timely
received the notice referred to in Section 2.4.2 hereof) of Loans made to such
Borrower. Such loss shall be the difference as reasonably determined by the
Lender between the amount that would have been realized by the Lender for the
remainder of the Interest Period in which such payment of prepayment is made
based on the Adjusted LIBO Rate applicable for such Interest Period and any
lesser amount that would be realized by the Lender in reemploying the funds
received in prepayment by making a loan of the same type (but utilizing the then
applicable Adjusted LIBO Rate) in the amount of the principal amount prepaid
during the period from the date of prepayment to the last day of the then
applicable Interest Period.
Section 2.7. Regulatory Change, Etc.
If, as a result of any Regulatory Change: (a) the basis of
taxation of payments to a Lender or any company controlling the Lender of the
principal of or interest on the Loans to a Borrower is changed; or (b) any
reserve, special deposit or similar requirements (other than such requirements
as are taken into account in determining the Adjusted LIBO Rate) relating to any
extensions of credit or other assets of, or any deposits with or other
liabilities of the Lender or any company controlling the Lender is imposed,
modified or deemed applicable; or (c) any other condition affecting a Loan to
such Borrower subject to the Adjusted LIBO Rate is imposed on the Lender or any
company controlling the Lender and the Lender reasonably determines that, by
reason thereof, the cost to the Lender or any company controlling the Lender of
making or maintaining the Loans to such Borrower is increased, or any amount
receivable by the Lender or any company controlling the Lender hereunder in
respect of any portion of the Loans to such Borrower is reduced, in each case by
an amount reasonably deemed by the Lender to be material (such increases in cost
and reductions in amounts receivable being herein called "Increased Costs"),
then such Borrower agrees that it will pay to the Lender upon the Lender's
written request such additional amount or amounts as will compensate the Lender
or any company controlling the Lender for such Increased Costs to the extent the
Lender reasonably determines that such Increased Costs are allocable to the
Loans to such Borrower. The Lender will notify such Borrower of any event
occurring after the date hereof which will entitle the Lender to compensation
pursuant to this Section 2.7 as promptly as practicable after it obtains
knowledge thereof and determines to request such compensation, but the failure
to provide such notice shall reduce any obligation of such Borrower under this
Section 2.7. Notwithstanding the foregoing, in no event shall either Borrower be
required to compensate the Lender for any portion of the income or franchise
taxes (including any taxes imposed in lieu of such taxes and any withholding
taxes) of the Lender or the company controlling the Lender, whether or not
attributable to payments made by the Borrower. If the Lender requests
compensation under this Section 2.7, a Borrower may, by notice to the Lender,
require that (i) the Lender furnish to such Borrower a statement setting forth
the basis for requesting such compensation and the method for determining the
amount thereof, and/or (ii) the interest rate on the Loans be changed from the
then applicable Adjusted LIBO Rate (as determined pursuant to Section 2.3) plus
the Applicable Margin to the Base Rate plus the Applicable Margin.
Section 2.8. Unavailability, Etc.
Without limiting the effect of Section 2.7, in the event that,
(a) by reason of any Regulatory Change, the Lender or the company controlling
the Lender incurs Increased Costs based on or measured by the excess above a
specified level of the amount of a category of deposits or other liabilities of
the Lender or any company controlling the Lender, which includes deposits by
reference to which the Adjusted LIBO Rate is determined or (b) the Lender shall
have determined in good faith after reasonable investigation that dollar
deposits in the principal amount of the Loans are not generally available in the
London interbank market, or (c) reasonable means do not exist for ascertaining
the Adjusted LIBO Rate, then, if the Lender so elects by notice to a Borrower,
the interest rate applicable to the then outstanding principal balance of the
Loans to such Borrower shall be converted to the Base Rate plus the Applicable
Margin. If the Lender elects to convert the interest rate applicable to the
Loans to the Base Rate plus the Applicable Margin pursuant to the terms of this
Section 2.8 the affected Borrower may, by notice to the Lender, require that the
Lender furnish to such Borrower a statement setting forth the basis for such
election.
Section 2.9. Mitigation; Mandatory Assignment.
The Lender shall use reasonable efforts to avoid or mitigate
any increased cost or suspension of the availability of the Adjusted LIBO Rate
under Sections 2.7 and 2.8 to the greatest extent practicable (including
transferring the Loans to another lending office or affiliate of the Lender)
unless, in the opinion of the Lender, such efforts would be likely to have any
adverse effect upon it. In the event the Lender makes a request to a Borrower
for additional payments in accordance with Section 2.7 or 2.8, then, provided
that no Event of Default has occurred and is continuing at such time, such
Borrower may, at its own expense (such expense to include any transfer fee
payable to the Lender under Section 10.27(b) and any expense pursuant to Section
2.6), and in its sole discretion, require the Lender to transfer and assign in
whole (but not in part), without recourse (in accordance with and subject to the
terms and conditions of Section 10.27(b)) all of its interests, rights and
obligations under this Credit Agreement to another Lender or institution
acceptable to the Lender which shall assume such assigned obligations (which
assignee may be another Lender, if the Lender accepts such assignment); provided
that (i) such assignment shall not conflict with any law, rule or regulation or
order of any court or other governmental authority, and (ii) the Borrowers or
such eligible assignee shall have paid to the assigning Lender in immediately
available funds the principal of and interest accrued to the date of such
payment on the portion of the Loans hereunder held by such assigning Lender and
all other amounts owed to such assigning Lender hereunder, including any amount
which would have been payable to the Lender under Section 2.6 if the Lender's
Loans had been paid or prepaid on the date of such transfer.
Section 2.10. Intentionally Deleted
[Intentionally Deleted.]
Section 2.11. Intentionally Deleted
[Intentionally Deleted.]
Section 2.12. Fees.
2.12.1. .Up Front Fee. Americold agrees to pay to the Lender
an up front fee (the "Up Front Fee") which Up Front Fee shall be equal to 0.20%
of the Total Commitment. The Up Front Fee shall be paid on October 31, 1997.
2.12.2... Exit Fee. Americold agrees to pay to Goldman Sachs
Mortgage Company an exit fee (the "Exit Fee") equal to 0.25% of the Total
Commitment. The Exit Fee shall be payable upon the earlier of (x) the Final
Maturity Date and (y) the repayment of the Loans. The Exit Fee shall be paid
unless either (i) Goldman or one of its Affiliates fails to offer, on Goldman's
or such Affiliate's then market terms, to originate mortgage loans (other than
under this Credit Agreement) or fails to offer to participate as a lead
underwriter/purchaser in a commercial mortgage-backed transaction involving the
Properties, in each case in the amount of at least $316,000,000 or (ii) Goldman
or one of its Affiliates so originates or participates in such transactions,
involving the Properties, in each case in the amount of at least $316,000,000.
ARTICLE III.
CONDITIONS PRECEDENT
Section 3.1. Conditions Precedent to the Loans to be Made on
the Closing Date.
The obligation of the Lender to make the Loans hereunder on
the Closing Date is subject to the fulfillment by Joint Venture, Americold and
ASC, as indicated, or waiver by the Lender of the following conditions precedent
no later than the Closing Date:
(a)......Representations and Warranties; Compliance with
Conditions. The representations and warranties of each Borrower and ASC
contained in this Credit Agreement and the other Loan Documents shall be true
and correct in all material respects on and as of the Closing Date with the same
effect as if made on and as of such date (except to the extent that they
expressly relate to an earlier date), and no Default or Event of Default shall
have occurred and be continuing as of the Closing Date; and each Borrower and
ASC shall be in compliance in all material respects with all terms and
conditions set forth in this Credit Agreement and in each other Loan Document on
its part to be observed or performed.
(b)......Credit Agreement and Notes. The Lender shall have
received copies of (i) this Credit Agreement, duly executed and delivered on
behalf of each Borrower and ASC, and (ii) the Notes, duly executed and delivered
on behalf of each Borrower.
(c)......Costs; Expenses; Fees. The Borrowers shall have paid
to the Lender all costs, expenses and fees (including legal fees and expenses of
counsel for the Lender relating to the transactions contemplated by the Loan
Documents and due diligence) to the extent due and payable under any Loan
Document on the Closing Date.
(d)......Financial Statements. The Lender shall have received
a pro forma balance sheet for each Borrower and its Subsidiaries (estimated as
of the day preceding the Closing Date), audited consolidated financial
statements of Americold for the year ended February 28, 1997, together with a
report thereon from independent public accountants of recognized national
standing and unaudited consolidated financial statements of Americold for the
second quarter ended August 31, 1997, and such other financial information as to
such Borrowers and ASC as the Lender may request.
(e)......Delivery of Other Loan Documents. The Lender shall
have received fully executed and acknowledged counterparts of the Pledge
Agreement and stock certificates and stock powers duly endorsed in blank, UCC-1
financing statements relating to all of the capital stock of Americold by Joint
Venture, together with any necessary consents thereto, and the Security
Agreements, together with UCC-1 financing statements.
(f)......Related Documents. Each additional document not
specifically referenced herein, but relating to the transactions contemplated
herein, shall have been duly authorized, executed and delivered by all parties
thereto and the Lender shall have received and approved certified copies
thereof.
(g)......Delivery of Organizational Documents. On or before
the Closing Date, each Borrower shall deliver or cause to be delivered to the
Lender copies certified by each Borrower or the applicable Secretary of State of
all organizational documentation related to each Borrower, each of the
Subsidiaries of Americold and/or the formation, structure, existence, good
standing and/or qualification to do business, as the Lender may request in its
sole discretion, including good standing certificates, qualifications to do
business in the appropriate jurisdictions, resolutions authorizing the entering
into of the Loan Documents and, with respect to the Guarantor, the guaranty
contained in Article VIII hereof, and incumbency certificates as may be
requested by the Lender.
(h)......Single Purpose Status. The Lender shall have received
an Officer's Certificate from the Joint Venture to the effect Joint Venture is a
single-purpose entity whose sole business is to own the equity securities of
Americold and certifying as to the fulfillment of the conditions set forth in
Section 3.1(a) hereof.
(i)......Opinions of Counsel. The Lender shall have received
an opinion of each Borrower's counsel with respect to (i) the execution,
delivery, authority, enforceability of the Loan Documents by each Borrower and
ASC, (ii) the receipt of all necessary governmental and nongovernmental
approvals to consummate the transactions contemplated by the Loan Documents,
(iii) the absence of litigation relating to the transactions contemplated by the
Loan Documents, (iv) the absence of any conflict between the execution, delivery
and performance of the Loan Documents and any material agreement binding upon
Borrowers, including the Mortgage Indenture, the Subordinated Note Indenture and
any credit agreement binding upon such Borrower, and (v) the perfection of the
security interests granted under the Pledge Agreement and the Security
Agreements and (vi) such other matters as the Lender may reasonably require, all
such opinions in form, scope and substance satisfactory to the Lender and its
counsel in their sole discretion.
(j)......Completion of Proceedings. All partnership,
corporate, and other proceedings taken or to be taken in connection with the
transactions contemplated by this Credit Agreement and other Loan Documents
shall be satisfactory in form and substance to the Lender, and the Lender shall
have received all such counterpart originals or certified copies of such
documents as the Lender may reasonably request.
(k)......Intentionally Omitted.
(l)......No Material Adverse Change. The Lender shall be
satisfied that as of the Closing Date there shall be no Material Adverse Change.
(m)......Credit Agreement. The execution, delivery and
performance of the transactions contemplated by this Agreement and the other
Loan Documents shall not conflict with the provisions of the Second Amended and
Restated Credit Agreement between Americold and United States National Bank of
Oregon dated as of June 19, 1995 in the amount of $27,500,000.
(n)......Merger. On or prior to the Closing Date, the merger
(including the payment of merger consideration) contemplated by the Merger
Agreement shall have been consummated in accordance with the Merger Agreement,
and the Lender shall have received evidence thereof satisfactory to it.
(o)......Redemption of Series A Notes. The Series A Redemption
shall have occurred and the Lender shall have received evidence thereof
satisfactory to it.
(p)......Series B Tender and Senior Subordinated Tender. The
Lender shall be satisfied that the Series B Tender and the Senior Subordinated
Tender shall have been made or that arrangements shall have been made so that
the Series B Tender and the Senior Subordinated Tender shall be made on or by
November 17, 1997.
(q)......Certification of Documents. The Lender shall have
received a true and complete copy of the Senior Subordinated Note Indenture and
the Mortgage Indenture certified by an officer of Americold.
(r)......Equity Contributions. Americold and Joint Venture
shall have received on or prior to the Closing Date cash capital contributions
of at least $242,000,000 and $217,000,000, respectively.
Section 3.2. Conditions Precedent to All Loans.
The obligation of the Lender to make the Loans (including
Loans made on the Closing Date), is subject, at the time of the making of each
Loan (except as hereinafter indicated), to the satisfaction of the following
conditions:
3.2.1. No Default; Representations and Warranties. At the
time of the making of a Loan, and also after giving effect thereto (i) there
shall exist no Default or Event of Default and (ii) all representations and
warranties by any Person contained herein or in any other Loan Document shall be
true and correct in all material respects with the same effect as though such
representations and warranties had been made on the date of the making of such
Loan (it being understood and agreed that any representation or warranty which
by its terms is made as of a specified date shall be required to be true and
correct in all material respects only as of such specified date).
3.2.2. No Material Adverse Change, etc. At the time of the
making of the Loan to a Borrower and also after given effect thereto, nothing
shall have occurred (and the Lender shall have become aware of no facts or
conditions not previously known) which it shall reasonably determine has or
could reasonably be expected to have or result in a Material Adverse Change.
3.2.3. Notice of Borrowing. (a) At least five (5) days prior
to the making of each Loan, Lender shall have received a Notice of Borrowing.
The occurrence of the Closing Date and the acceptance of the benefits or
proceeds of each Loan shall constitute a representation and warranty by the
Borrowers to the Lender that all the conditions specified in Sections 3.1 and
3.2 and applicable to such Loan exist as of that time. All of the Notes,
certificates, legal opinions and other documents and papers referred to in
Sections 3.1 and 3.2, unless otherwise specified, shall be delivered to the
Lender and shall be in form and substance reasonably satisfactory to the Lender.
3.2.4... Legal Opinions. The Lender shall have received such
legal opinions from counsel to the Borrower or Borrowers, as applicable, as to
such matters (including the ability of the Borrower to incur such Loan and to
provide collateral contemplated under this Agreement for such Loan without
violating the terms of the Mortgage Indenture, the Subordinated Note Indenture
and other material agreements of either Borrower) as it may reasonably request.
3.2.5...Closing Date. The date of such Loan shall be on or
before April 30, 1998.
3.2.6...Parent Guarantee. If the circumstances described in
Section 2.1.1(b) shall have occured, the Lender shall have received executed
Parent Guarantees by Parent Guarantors owning directly or indirectly 100% of the
capital stock of Joint Venture.
Section 3.3. Conditions Precedent to the JV Takeout Closing
Date.
In addition to the conditions set forth in Section 3.2 hereof,
the obligation of the Lender to make the JV Takeout Loan on the JV Takeout
Closing Date is subject to the fulfillment by Joint Venture of the following
conditions precedent no later than the JV Takeout Closing Date.
3.3.1. Repayment of JV Loan. Arrangements satisfactory to the
Lender shall have been made for the Joint Venture to make JV Mandatory
Prepayment.
3.3.2. Legal Opinion. The Lender shall have received an
opinion from counsel to Americold that the incurrence of the JV Takeout Loan
shall not violate the terms of the debt instruments to which
Americold is a
party.
Section 3.4. Conditions Precedent to the Series B Closing
Date.
In addition to the conditions set forth in Section 3.2 hereof,
the obligation of the Lender to make the Series B Americold Loan hereunder on
each Series B Closing Date is subject to the fulfillment by Joint Venture and
Americold, as indicated, or waiver by the Lender of the following conditions
precedent no later than such Series B Closing Date:
3.4.1. Consummation of Series B Tender; Redemption
Arrangements. Americold shall have (a) provided evidence satisfactory to the
Lender that the Series B Tender shall have been consummated and that all
tendered Series B Notes will be cancelled simultaneously with the making of the
Series B Americold Loan, (b) specified in writing to the Lender the percentage
of Series B Notes tendered, and if sufficient Series B Notes were tendered,
certified to the Lender that all operating covenants in the Mortgage Indenture
have been effectively removed, (c) provided evidence satisfactory to the Lender
that arrangements for the redemption of all untendered Series B Notes on March
1, 1998 have been made (and Americold hereby irrevocably authorizes Agent to
provide in the name and on behalf of Americold all notices, instructions or
orders to the trustee under the Mortgage Indenture to effect such redemption if
not otherwise timely provided by Americold), and (d) provided evidence
reasonably satisfactory to Lender that Americold has on such date available or
has received on or before such date irrevocable commitments (which may include
commitments under this Credit Agreement) from creditworthy Persons to provide
funds to Americold in order to effect the Series B Redemption, the Senior
Subordinated Tender and the Senior Subordinated Defeasance.
Section 3.5. Conditions Precedent to the Senior Subordinated
Closing Date.
In addition to the conditions set forth in Section 3.2 hereof,
the obligation of the Lender to make the Senior Subordinated Americold Loan
hereunder on the Senior Subordinated Closing Date is subject to the fulfillment
by Americold of the following conditions precedent no later than the Senior
Subordinated Closing Date:
3.5.1 Consummation of Senior Subordinated Tender; Defeasance
Arrangements. The Borrowers shall (i) have provided evidence satisfactory to the
Lender that the Senior Subordinated Tender shall have been consummated, (ii)
have specified to Lender the percentage of Senior Subordinated Notes tendered
and (iii) if sufficient Senior Subordinated Notes have been tendered, have
provided evidence that the covenants under the Senior Subordinated Indenture
were effectively removed, have taken all necessary action to defease the
remaining outstanding Senior Subordinated Notes and provided evidence to the
Lender that the defeasance has become effective pursuant to Section 6.02 of the
Senior Subordinated Indenture (and that the requirement under Section 6.02(3)
thereof has been satisfied or removed) and (iv) provided evidence reasonably
satisfactory to Lender that Americold has on such date available or has received
on or before such date irrevocable commitments (which may include the
commitments of Lender under this Credit Agreement) from creditworthy Persons to
provide funds to Americold in order to effect the Series B Redemption and the
Series B Tender. In the event that applicable instruments creating Indebtedness
prevent Americold from incurring all or a portion of the Senior Subordinated
Americold Loan, (a) Americold will borrow such portion thereof as is so
permitted and Joint Venture or an Affiliate will borrow, on terms identical to
the JV Loan, the remaining portion and make such funds available to Americold to
enable Americold to effect a defeasance of the Senior Subordinated Notes on the
Senior Subordinated Closing Date (with such additional borrowing by Joint
Venture or such Affiliate to be refinanced by a borrowing from the Lenders by
Americold (on terms identical to the Americold Loans) as soon as such borrowing
is so permitted) or (b) if Joint Venture (or such Affiliate) is unable to borrow
the amount and provide the funds as contemplated by the foregoing clause (a),
Americold and Joint Venture will take such actions as may be reasonably
requested by the Lender in order to effect on the Senior Subordinated Closing
Date the payment of the tender price for the tendered Senior Subordinated Notes
and the defeasance of the untendered Senior Subordinated Notes and to obtain no
later than March 1, 1998 the discharge of the Mortgage Indenture and the release
of all collateral mortgaged under the Mortgage Indenture.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES
Section 4.1. Representations and Warranties of the Borrower.
Each Borrower and ASC hereby jointly and severally represent
and warrant to the Lender on and as of each Loan Closing Date that:
(a)......Organization. Each Borrower and ASC have been duly
organized and is validly existing and is in good standing with requisite power
and authority to own its respective properties and to transact the businesses in
which it is now engaged or proposed to be conducted. Each Borrower and ASC are
duly qualified to do business and is in good standing in each jurisdiction where
it is required to be so qualified in connection with its properties, businesses
and operations, except where the failure to be so qualified could not be
reasonably likely to result in a Material Adverse Change. Each Borrower and ASC
possess all rights, licenses, permits and authorizations, governmental or
otherwise, necessary to entitle it to own its properties and to transact the
businesses in which it is now engaged other than those which, if not so
possessed, could have a material adverse effect on any Borrower. Joint Venture
owns all the capital stock of Americold.
(b)......Proceedings. All necessary action has been taken by
each Borrower and ASC to authorize the execution, delivery and performance of
this Credit Agreement and the other Loan Documents to which it is a party. This
Credit Agreement and such other Loan Documents have been duly authorized,
executed and delivered by each Borrower and ASC party thereto and constitute
each Borrower's and ASC's legal, valid and binding obligations enforceable
against it in accordance with their respective terms, subject, as to
enforceability, to applicable bankruptcy, insolvency and similar laws affecting
rights of creditors generally and general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or at law).
(c)......No Conflicts. The Borrowers' and ASC's execution,
delivery and performance of this Credit Agreement and the other Loan Documents
to which it is a party will not conflict with or result in a breach of any of
the terms or provisions of, or constitute a default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any of the
Borrowers' or ASC's, or to its knowledge, any of Americold's Subsidiaries'
properties or assets pursuant to the terms of any indenture, mortgage, deed of
trust, the loan agreement, partnership agreement, trust agreement or other
material agreement or instrument to which the Borrowers (other than immaterial
contracts or agreements not creating Indebtedness for borrowed money) to which
Borrowers or ASC, or any of Americold's Subsidiaries, is a party or by which any
of the Borrowers' or ASC's, or any of Americold's Subsidiaries' properties or
assets is subject, nor will such action result in any violation of the
provisions of any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Borrowers or ASC or any
of the Borrowers', ASC's or Americold's Subsidiaries' properties or assets, and
any consent, approval, authorization, order, registration or qualification of or
with any court or any such regulatory authority or other governmental agency or
body required for the execution, delivery and performance by it of this Credit
Agreement or any other Loan Documents to which it is a party has been obtained
and is in full force and effect in all material respects.
(d)......Litigation. There are no actions, suits or
proceedings at law or in equity by or before any Governmental Authority or other
agency now pending or threatened against or affecting either Borrower, ASC, or
Americold's Subsidiaries, which actions, suits or proceedings, relate to the
transactions contemplated by any of the Loan Documents or the Transactions or
which, alone or in the aggregate, if determined against either Borrower, ASC or
Americold's Subsidiaries, as applicable, might result in a Material Adverse
Change.
(e)......Agreements. None of the Borrowers, ASC nor, to the
knowledge of the Borrowers, any of Americold's Subsidiaries, is in default in
any material respect in the performance, observance or fulfillment of any of the
obligations, covenants or conditions contained in any agreement or instrument to
which it is a party or by which it is bound which could have a material adverse
effect on the Borrowers, ASC or Americold's Subsidiaries.
(f)......No Bankruptcy Filing. Neither ASC, Borrowers nor
Americold's Subsidiaries is contemplating either the filing of a petition by it
under any state or federal bankruptcy or insolvency laws or the liquidation of
its assets or property, and none has any knowledge of any Person contemplating
the filing of any such petition against any of them or any of Americold's
Subsidiaries.
(g)......Full and Accurate Disclosure. No statement of fact
made by any Person in this Credit Agreement or in any of the other Loan
Documents furnished or in connection with any part of the transaction and all
such factual information hereafter furnished by or on behalf of the Borrowers in
writing to the Lender to which any Borrower is a party contains any untrue
statement of a material fact or omits to state any material fact necessary to
make statements contained herein or therein not misleading. There are no facts,
events or conditions known to either Borrower disclosed to the Lender which,
individually or in the aggregate, have or could be expected to result in a
Material Adverse Change.
(h)......No Plan Assets. Neither of the Borrowers, ASC nor any
of Americold's Subsidiaries is an "employee benefit plan", as defined in Section
3(3) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), and none of the assets of either Borrower or any of Americold's
Subsidiaries constitutes or will constitute Plan Assets.
(i)......Compliance. Each Borrower and Americold's
Subsidiaries are in compliance in all material respects with all laws, rules,
regulations, orders and decrees (including Environmental Laws) applicable to it,
or to its properties other than those where noncompliance could not reasonably
be expected to have a Material Adverse Change on any of the Borrowers, ASC or
Americold's Subsidiaries.
(j)......Financial Information. The financial statements
provided to the Lender, consisting of a pro forma balance sheet of each Borrower
and Americold's Subsidiaries on a consolidated basis assuming consummation of
the transactions contemplated hereunder and under the Merger Agreement are true
and correct and fairly represent the financial condition of each Borrower and
Americold's Subsidiaries as of such date and based on such assumption; and since
the date of such pro forma balance sheets there have occurred no changes or
circumstances which have had or are likely to have a Material Adverse Effect on
either Borrower or Americold's Subsidiaries and the financial statements
referenced above.
(k)......Title; Liens. Each Borrower and each of Americold's
Subsidiaries has good and insurable title to all of its properties and assets
including, without limitation, the Properties, free and clear of all mortgages,
liens, encumbrances, mortgages, pledges, security interests and other adverse
claims of any nature, except for the Pledge Agreement and the Lien under the
Security Agreement in favor of the Lender and Permitted Liens and other Liens
permitted by Section 6.2.
(l)......Indebtedness. No Borrower nor Americold's
Subsidiaries has any Indebtedness except for the Loans under the Credit
Agreement and the Indebtedness listed on Schedule 4.1 hereto (the "Existing
Indebtedness") which is a complete list of all Indebtedness (other than
Indebtedness in aggregate principal amount not in excess of $1,000,000) which is
outstanding on the date hereof and which is to remain outstanding after the date
hereof.
(m)......Taxes. The Borrowers and each of their Subsidiaries
have filed, or caused to be filed, all material tax returns (federal, state,
local and foreign) required to be filed and paid all amounts of taxes shown
thereon to be due (including interest and penalties) and has paid all other
taxes (including intangible fees, assessments and other governmental charges
taxes) owing (or necessary to preserve any Liens in favor of the Lender), by it,
except for such taxes (i) which are not yet delinquent or (ii) as are being
contested in good faith and by proper proceedings, and against which adequate
reserves are being maintained in accordance with GAAP, but only so long as there
is no risk of loss, sale or forfeiture of any collateral pledged to the Lender.
The Borrowers are not aware of any proposed material tax assessments against it
or any of its Subsidiaries. No extension of time for assessment or payment by
either Borrower or any of their Subsidiaries of any federal, state or local tax
is in effect.
(n)......Not a Foreign Person. Neither of the Borrowers nor
any of Americold's Subsidiaries is a "foreign person" within the meaning of ss.
1445(f)(3) of the Code.
(o)......Capital Contributions. On or prior to the Closing
Date, Joint Venture and Americold shall have received the capital contributions
referred to in Section 3.1, and no Distributions have been made except as
permitted under this Agreement.
(p)......Use of Proceeds. None of the Loan proceeds will be
used for the purpose of purchasing or carrying any "margin stock" as defined in
Regulation U, Regulation X, Regulation G, or Regulation T or for the purpose of
reducing or retiring any Indebtedness which was originally incurred to purchase
or carry "margin stock" or for any other purpose which might constitute this
transaction a "purpose credit" within the meaning of Regulation U, Regulation X
or Regulation G.
(q)......Investment Company Act. Neither of the Borrowers nor
Americold's Subsidiaries is (i) an "investment company" registered or required
to be registered under the Investment Company Act of 1940, as amended, and is
not "controlled" by such a company, within the meaning of; or (ii) is a "holding
company" or a "subsidiary company" of a "holding company" or an "affiliate" of
either a "holding company" or a "subsidiary company" within the meaning of the
Public Utility Holding Company Act of 1935, as amended.
(r)......Employees. Each Borrower and each of Americold's
Subsidiaries either has no employees or has no material liability which has been
incurred by it and remains unsatisfied for any taxes or penalties with respect
to (i) any employee benefit plan (within the meaning of Section 3(3) of ERISA)
established, sponsored, maintained or contributed to by it on behalf of its
employees at any of the Properties or (ii) any "multiemployer plan" (as defined
in Section 4001(a)(3) of ERISA) as to which it is making or has an obligation to
make contributions or (iii) any lien which has been imposed on its assets
pursuant to Section 412 of the Code or Sections 302 or 4086 of ERISA.
(s)......Merger Agreement. The Borrowers have furnished to the
Lender a true and complete copy of the Merger Agreement and all amendments and
waivers thereof, no default by it exists thereunder and to the best of the
Borrowers' knowledge no default in any material respects by any party thereto or
any affiliates of such parties exists thereunder except as it has heretofore
disclosed in writing to the Lender.
(t)......Priority. Upon attachment of the Liens under the
Pledge Agreement, the Security Agreements and the Mortgages, such Liens will
constitute the first priority Liens they purport to create subject to no other
Liens except Liens permitted hereunder or the other Loan Documents.
Section 4.2. Survival of Representations.
Each Borrower and ASC hereby agree that all of the
representations and warranties of Borrower or the Guarantor, as applicable, set
forth in Section 4.1 hereof and elsewhere in this Credit Agreement and in the
other Loan Documents shall survive for so long as any amount remains owing to
the Lender under this Credit Agreement or any of the other Loan Documents by
either Borrower. All representations, warranties, covenants and agreements made
in this Credit Agreement or in the other Loan Documents by either Borrower shall
be deemed to have been relied upon by the Lender notwithstanding any
investigation heretofore or hereafter made by the Lender.
ARTICLE V.
AFFIRMATIVE COVENANTS OF BORROWER
Section 5.1. Information Covenants.
Each Borrower will furnish, or cause to be furnished, as
indicated to the Lender:
(a)......Annual Financial Statements. As soon as available and
in any event within ninety (90) days after the close of each fiscal year of each
Borrower and its Subsidiaries, a consolidated balance sheet of each Borrower and
its Subsidiaries at the end of such fiscal year together with related
consolidated statements of income, and retained earnings and of cash flows for
such fiscal year, all in reasonable detail and examined by independent certified
public accountants of recognized national standing whose opinion shall be to the
effect that such financial statements have been prepared in accordance with GAAP
(except for changes with which such accountants concur) and shall not be
qualified as to the scope of the audit, all of the foregoing to be in reasonable
detail and in form and substance satisfactory to the Lender.
(b)......Quarterly Financial Statements. As soon as available
and in any event within forty-five (45) days after the end of each of the first
three fiscal quarters of each fiscal year of each Borrower and its Subsidiaries,
a consolidated balance sheet of each Borrower and its Subsidiaries as at the end
of such quarterly period together with related consolidated statements of
income, and retained earning and of cash flows for such quarterly period and for
the portion of the fiscal year ending with such period, all in reasonable form
and detail acceptable to the Lender and accompanied by Officer's Certificates on
behalf of each Borrower as being true and correct and as having been prepared in
accordance with GAAP, subject to changes resulting from audit and normal
year-end audit adjustments.
(c)......Monthly Reports. Within thirty (30) days after the
end of each month, each Borrower will provide a report in a form reasonably
satisfactory to the Lender including an operating statement for such month for
such Borrower.
(d)......Officer's Certificate. At the time of delivery of the
financial statements provided for in Sections 5.1(a) and (b) hereof, an
Officer's Certificate on behalf of each Borrower, delivering such statements
which, if it includes a statement that an Event of Default exists, shall specify
the nature and extent thereof and what action such Borrower proposes to take
with respect thereto.
(e)......Auditor's Reports; Tax Returns. Promptly upon receipt
thereof, (i) a copy of any other report or "management letter" submitted by
independent accountants to each Borrower in connection with any annual, interim
or special audit of the books of each Borrower or its Subsidiaries and (ii) if
requested by the Lender, a copy of such Borrower's Federal tax return.
(f)......Appraisals, Environmental and Engineering Reports.
(i) Promptly upon receipt by each Borrower or any of its Subsidiaries, copies of
any Environmental Claim which could be reasonably expected to result in a
Material Adverse Change from the United States Environmental Protection Agency,
or any state or local agency responsible for environmental matters, the United
States Occupational Health and Safety Administration, or any state or local
agency responsible for health and safety matters, or any successor agencies or
authorities concerning environmental, health or safety matters. (ii) Within
ninety (90) days after the Closing Date the Borrowers shall provide appraisals,
engineering reports and environmental reports as requested by the Lender in its
reasonable discretion.
(g)......Other Information. With reasonable promptness upon
any such request, such other information regarding the business, properties or
financial condition of each Borrower or any of its Subsidiaries as the Lender
may reasonably request.
(h)......Notice of Default, Casualty, Condemnation or
Litigation. Promptly (but in any event within five (5) Business Days) upon a
Borrower obtaining knowledge thereof, it will give written notice to the Lender,
of the occurrence of any of the following with respect to such Borrower or any
of its Subsidiaries: (i) the occurrence of an Event of Default, specifying the
nature and existence thereof and what action such Borrower proposes to take with
respect thereto, (ii) commencement of any litigation, arbitral or governmental
proceeding against such Borrower or any of its Subsidiaries in respect of
environmental matters in which damages are sought or environmental remediation
demanded which exceeds $500,000 in any instance or $5,000,000 in the aggregate
or which might otherwise materially adversely affect the business, properties,
assets, condition (financial or otherwise) or prospects of the Borrowers and
their Subsidiaries, taken as a whole, (iii) the commencement of any litigation,
arbitral or governmental proceeding against either Borrower in which damages are
sought which exceeds $500,000 in any instance or $5,000,000 in the aggregate or
which might otherwise materially adversely affect the business, properties,
assets, condition (financial or otherwise) or prospects of such Borrower, (iv)
any levy of an attachment, execution or other process against the Borrowers or
Borrowers' Subsidiaries' assets which exceeds $500,000 in any instance or
$5,000,000 in the aggregate, (v) with respect to either Borrower or any of their
Subsidiaries, the occurrence of an Event of Default (after applicable notice and
cure periods) by reason of an event of default under any other agreement for
borrowed money, (vi) any development in Borrowers' or the Borrowers'
Subsidiaries' respective businesses or affairs which has resulted in, or which
either Borrower reasonably believes may result in, a Material Adverse Change of
such Borrower and its Subsidiaries, (vii) any significant casualty or
condemnation of any Property or (viii) the institution of any proceedings
involving, or the receipt of notice of potential liability or responsibility
for, any violation, or alleged violation of any federal, state or local law,
rule or regulation, including but not limited to, regulations promulgated under
the Resource Conservation and Recovery Act of 1976, 42 U.S.C. ss.ss. 6901 et
seq., regulating the generation, handling or disposal of any toxic or hazardous
waste or substance or the release into the environment or storage of any toxic
or hazardous waste or substance, the violation of which would reasonably be
expected to give rise to a material liability of, or a material adverse effect
on the business, assets, properties condition (financial or otherwise) or
prospects of, the Borrowers and the Subsidiaries.
(i)......Condemnation and Casualty. Each Borrower shall
immediately notify the Lender of any casualty or any pending or threatened
condemnation or eminent domain proceeding with respect to any portion of any
Property which may result in a claim for insurance or condemnation proceeds in
excess of $500,000 per real property and group of other related Property.
Section 5.2. Maintenance of Properties
Each Borrower shall insure that its Properties and its
Subsidiaries' Properties are kept in good condition and repair, normal wear and
tear and casualty damage excepted.
Section 5.3. Preservation of Existence and Franchises.
Each Borrower will do or cause to be done, all things
necessary to preserve and keep in full force and effect its and its
Subsidiaries' existence, rights, franchises and authority, but Americold shall
not be required to be qualified to do business in any jurisdiction if the
failure to be so qualified is not reasonably likely to result in a Material
Adverse Change and, with respect to Joint Venture, its single-purpose entity
status, if applicable.
Section 5.4. Books, Records and Inspections.
Each Borrower will keep, and shall cause its Subsidiaries to
keep, complete and accurate books and records of their respective transactions
in accordance with GAAP applied on a consistent basis. Each Borrower will, and
will cause its Subsidiaries to, permit, on reasonable notice and during
reasonable hours, officers or designated representatives of the Lender to visit
and inspect their respective books of account and records and any of their
respective properties or assets (in whomever's possession) and to discuss the
affairs, finances and accounts of such Borrower and such Subsidiaries with, and
be advised as to the same by, their respective officers, directors, partners and
independent accountants.
Section 5.5. Compliance with Law.
Each Borrower will comply, and will cause its Subsidiaries to
comply, in all material respects with all applicable laws, rules, regulations
and orders of, and all applicable restrictions imposed by all applicable
governmental bodies, foreign or domestic, or authorities and agencies thereof
(including quasi governmental authorities and agencies), in respect of the
conduct of its businesses and the ownership of its respective properties
(including applicable statutes, regulations, orders and restrictions relating to
environmental standards and controls) other than such noncompliance which could
not reasonably be expected to result in a Material Adverse Change.
Section 5.6. Insurance.
Each Borrower will at all times maintain, and will cause such
Borrower's Subsidiaries to at all times maintain, in full force and effect
insurance (including worker's compensation insurance, liability insurance,
casualty insurance and business interruption insurance) in such amounts,
covering such risks and liabilities and with such deductibles or self-insurance
retentions as are in accordance with normal industry practice.
Section 5.7. Ownership of Americold.
Joint Venture shall at all times directly own one-hundred
percent (100%) of the capital stock or other equity interests of Americold.
Americold shall not create any Subsidiaries after the Closing Date.
Section 5.8. Plan Assets, Etc.
Each Borrower will do, or cause to be done, all things
reasonably necessary to ensure that neither it nor its Subsidiaries will be
deemed to hold Plan Assets at any time.
Section 5.9. Costs of Enforcement.
In the event (i) that this Credit Agreement is put into the
hands of any attorney for collection, suit or action as against either Borrower,
(ii) of the bankruptcy, insolvency, rehabilitation or other similar proceeding
in respect of either Borrower or any of its Subsidiaries or an assignment by
either Borrower for the benefit of its creditors, or (iii) the Lender shall
attempt to remedy any Default or Event of Default hereunder or incur any expense
with respect to any Default or Event of Default (whether or not involving
collection efforts), such Borrower shall be chargeable with and agrees to pay
all reasonable costs incurred by the Lender as a result thereof, including costs
of collection and defense, including reasonable attorney's fees (and experts',
consultants' and witnesses' fees) in connection therewith and in connection with
any appellate proceeding or post-judgment action involved therein, which shall
be due and payable together with all required service or use taxes.
Section 5.10. Estoppel Statement.
After written request by the Lender, the Borrowers shall
within fifteen (15) days furnish the Lender with a statement, duly acknowledged
and certified, setting forth (i) the original principal amount of the Notes,
(ii) the unpaid principal amount of the Notes, (iii) the current Adjusted LIBO
Rate and Final Maturity Date, (iv) the date installments of interest were last
paid, (v) any offsets or defenses known to Borrowers to the payment of the
Secured Obligations, (vi) that the Notes, this Credit Agreement, the Pledge
Agreement, the Security Agreements and the other Loan Documents are valid, legal
and binding obligations and have not been modified or if modified, giving
particulars of such modification, and (vii) such other matters as the Lender may
reasonably request.
Section 5.11. Transaction Covenants.
(i) Americold shall promptly after the Closing Date and the
consummation of the Series A Redemption seek to obtain the release of
Properties which are at such time encumbered under the Mortgage
Indenture to the extent permitted as a result of such Series A
Redemption provided that nothing herein shall require Americold to
deliver appraisals other than MAI appraisals in connection therewith.
(ii) Americold and Joint Venture will effect the JV Mandatory
Prepayment as soon as permitted under the financial covenants of the
Mortgage Indenture and the Senior Subordinated Indenture.
(iii) Promptly (and in any event on or before November 17,
1997) after the date of this Agreement, Americold shall commence the
Series B Tender and the Senior Subordinated Tender. Upon consummation
of the Series B Tender, Americold shall provide to Agent confirmation
of the results thereof. Americold shall promptly after consummation of
the Series B Tender seek to obtain the release of Properties which are
at such time encumbered under the Mortgage Indenture to the extent
permitted as a result of such Series B Tender, provided that nothing
herein shall require Americold to deliver appraisals other than MAI
appraisals in connection therewith
(iv) In the event any Series B Notes remain outstanding upon
consummation of the Series B Tender, Americold shall promptly notify
the remaining holders of the Series B Notes that the outstanding Series
B Notes shall be redeemed on March 1, 1998 or earlier, if permitted.
Americold shall promptly after all Series A Notes nd Series B Notes
have been redeemed or surrendered for cancellation obtain the release
of all Properties subject to the lien of the Mortgage Indenture.
Section 5.12. Additional Security; Mortgages.
Each Borrower will grant to the Lender a first priority
security interest in and Mortgage on each Property promptly after such Property
is released from the Lien of the Mortgage Indenture or any of the $34 Million
Credit Documents promptly after release of such Property therefrom, and, in
connection therewith, each Borrower shall comply with the Mortgage Closing
Conditions; provided, however, that nothing in this sentence shall require
Americold to obtain appraisals other than MAI appraisals or, except during any
period that a Default shall have occurred and be continuing, to incur any
material costs that would be duplicated or would be unnecessary in connection
with a secured refinancing of the Loans, it being understood that title
commitments will be obtained and sought to be held open for a one year period.
If requested by the Agent or any Lender, each Borrower shall deliver to Lender
real estate appraisals satisfying the requirement set forth in 12 C.F.R., Part
34-Subpart C, or any successor or similar statute, rule, regulation, guideline
or order (any such appraisal a "Required Appraisal"), in connection with any
Property, in form or substance satisfactory to Lender.
ARTICLE VI.
NEGATIVE COVENANTS
Each Borrower hereby covenants and agrees that, without prior
written consent of the Lender:
Section 6.1. Indebtedness67.
(a)......Each Borrower will not, and will cause its
Subsidiaries not to, contract, create, incur, assume or permit to exist any
Indebtedness, except:
(i) Indebtedness arising under this Credit Agreement and the
other Loan Documents or the Mortgages, if any;
(ii) Existing Indebtedness (provided that the Indebtedness
under the $34 Million Credit Documents shall be repaid in full on or
before March 1, 1998 and shall not, after such date, constitute
Existing Indebtedness except to the extent the repayment hereof has
been guaranteed under a Parent Guarantee in the amount of such
Indebtedness); and
(iii) purchase money Indebtedness incurred after the Closing
Date by Borrower to acquire capital assets so long as (a) such
Indebtedness is incurred within 180 days of the date of acquisition of
such asset, (b) the aggregate amount of all such Indebtedness
outstanding at any time shall not exceed $75 million, (c) after giving
effect thereto, there shall not exist any Default or Event of Default,
(d) Borrower has complied with the provisions of Section 6.1(b) with
respect to such Indebtedness and (e) the principal amount of any such
Indebtedness shall not exceed 80% of the purchase price of the asset or
assets acquired with the proceeds of such Indebtedness; and
(iv) Indebtedness in favor of Vornado or Crescent which
contains the terms of subordination set forth on Exhibit G attached
hereto which (a) provides for no mandatory payment of principal or
installment thereof on or prior to November 15, 1999 and (b) does not
provide for or permit the payment of any cash interest except to the
extent that such cash interest may be paid as a Distribution under
Section 6.11.
(b)......Each Borrower hereby grants to Goldman Sachs Mortgage
Company a right of first offer with respect to Indebtedness incurred under
Section 6.1(a)(iii). No Borrower shall incur any such Indebtedness unless
Borrower shall have first provided Goldman Sachs Mortgage Company with written
notice (each such notice, a "Notice") of its intention to incur Indebtedness and
the details of such Indebtedness, and Goldman Sachs Mortgage Company shall have
declined (or be deemed to have declined) to offer to provide or to have an
Affiliate offer to provide financing. Goldman Sachs Mortgage Company shall be
deemed to have so declined if it shall expressly decline in writing to offer to
provide such financing or fails to offer to provide such financing within five
Business Days after being provided such terms and details. If Goldman Sachs
Mortgage Company shall decline (or be deemed to have declined to offer to
provide such financing), each Borrower shall be able to incur such Indebtedness
at any time within 90 days after the date of such Notice. If Goldman Sachs
Mortgage Company or its Affiliate shall have offered to provide such financing
and Borrowers shall not have accepted such offer, each Borrower shall be
prohibited for a period of 180 days after the date of such Notice from incurring
any such Indebtedness having, in the reasonable discretion of the Borrowers,
terms which are worse for Borrowers than those offered by Goldman Sachs Mortgage
Company or such Affiliate. If such proposed Indebtedness is not incurred by
Borrowers within such 180 day period, the provisions of this Section 6.1(b)
shall apply to any incurrence of such Indebtedness. The failure (or deemed
failure) by Goldman Sachs Mortgage Company or such Affiliate to offer to provide
any particular financing under this Section 6.1(b) shall not prevent the
application of this Section 6.1(b) to any other incurrence of Indebtedness
proposed to be incurred under Section 6.1(a)(iii).
Section 6.2. Liens.
Each Borrower will not, and will cause its Subsidiaries not
to, (i) contract, create, incur, assume or permit to exist any Lien (other than
(a) Permitted Liens, (b) Liens existing on the date hereof, (c) solely with
respect to Indebtedness permitted by Section 6.1(a)(iii), Liens on the assets
acquired with the proceeds of such Indebtedness to secure such Indebtedness but
not any other assets and (d) solely with respect to the subordinated
Indebtedness permitted by Section 6.1(a)(iv), junior Liens on Properties of such
Borrower but only if such Properties are then subject to first priority Liens in
favor of the Agent to secure the Secured Obligations and such junior Liens which
are subject to the subordination provisions set forth on Exhibit G attached
hereto) with respect to any of their respective properties or assets of any kind
(whether real or personal, tangible or intangible), whether now owned or
hereafter acquired or (ii) sell any of their respective properties or assets
subject to an understanding or agreement, contingent or otherwise, to repurchase
such property or assets (including sales of accounts receivable or notes with
recourse to it).
Section 6.3. Nature of Business.
Each Borrower and its Subsidiaries will not alter the
character or conduct of their respective businesses from that conducted as of
the Closing Date.
Section 6.4. Consolidation, Merger, Sale or Purchase of
Assets, Etc.
(a) Neither of the Borrowers nor their Subsidiaries will
dissolve, liquidate, or wind up their affairs, and (b) the Borrowers will not,
and the Borrowers will cause their Subsidiaries not to, enter into any
transaction of merger or consolidation (other than the merger contemplated by
the Merger Agreement to be consummated on or prior to the Closing Date), or sell
or otherwise dispose of all or any part of their Properties, lease or otherwise
acquire (in a single transaction or a series of related transactions) all or any
part of the property or assets of any Person (other than Acquisitions not in
excess of $75,000,000 in the aggregate (including in such computation
Acquisitions permitted under Section 6.5)); provided, that nothing in this
Section 6.4 shall prevent the sale of (i) Properties located at Burbank,
California and Watertown, Massachusetts, (ii) inventory in the ordinary course
of business, or (iii) the sale of equipment deemed obsolete and other
miscellaneous property sales so long as the gross sales proceeds of such sales
of obsolete equipment and other miscellaneous property do not exceed $500,000 in
the aggregate during any consecutive six month period.
Section 6.5. Advances, Investments and Loans.
Each Borrower will not, and each Borrower will cause its
Subsidiaries not to, lend money or make advances to any Person, or purchase or
acquire any stock, obligations or securities of, or any other interest in, or
make any capital contribution to any Person other than (i) Acquisitions not in
excess of $75,000,000 in the aggregate (including in such computation
Acquisitions permitted under Section 6.4), and (ii) Permitted Investments and
(iii) the merger pursuant to the Merger Agreement.
Section 6.6. Transactions with Affiliates.
Each Borrower will not enter into, and each Borrower will
cause its Subsidiaries to not enter into, any transaction or series of
transactions with any Affiliate other than on terms and conditions substantially
as favorable to such Borrower or its Subsidiaries, as the case may be, as would
be obtainable by any of them in a comparable arm's-length transaction with a
Person other than an Affiliate; provided, however, that nothing in this Section
6.6 shall prevent Borrowers from incurring Indebtedness permitted by Section
6.1(a)(iv).
Section 6.7. Operating Lease Obligations.
Each Borrower will not enter into, assume or permit to exist,
and each Borrower will cause its Subsidiaries to not enter into, assume or
permit to exist, any obligations for the payment of rent for any property (real,
personal or mixed, tangible or intangible) under leases, subleases or similar
arrangements as lessee except in the ordinary course of business under leases
that provide for annual rentals not in excess of $12,500,000 per year in the
aggregate under all such leases, subleases or similar arrangements.
Section 6.8. Sale and Leaseback.
Each Borrower will not enter into, and each Borrower will
cause its Subsidiaries to not enter into, any arrangement pursuant to which it
will lease back, as lessee, any property (real, personal or mixed, tangible or
intangible) previously owned by any of them and sold or otherwise transferred or
disposed of, directly or indirectly, to the owner-lessor of such property other
than those arrangements the Borrowers have presently entered into prior to the
Closing Date and which are listed on Schedule 6.8.
Section 6.9. Governing Documents.
Each Borrower will not cause or permit, and each Borrower will
cause its Subsidiaries to not cause or permit, any amendment, modification,
supplement, waiver or termination of any provisions of its respective
organizational instruments, or other governing document, in a manner that would
impair or limit its ability to satisfy its obligations hereunder and under the
other Loan Documents, including, specifically but without limitation, the
obligations referred to in Sections 5.7 and 6.3 hereof.
Section 6.10. ERISA.
Each Borrower will not and will cause its Subsidiaries not to
take any action which will result in a material violation of ERISA.
Section 6.11. Distributions; Payment on Subordinated
Indebtedness.
Each Borrower will not, and will not permit any of its
Subsidiaries to (i) declare or pay any dividends (other than dividends payable
solely in capital stock of such Person) or return any capital to, its
stockholders or authorize or make any other distribution payment or delivery of
property or cash to its stockholders as such, or redeem, retire, purchase or
otherwise acquire, directly or indirectly, for a consideration, any shares of
any class of its capital stock now or hereafter outstanding (or any warrants for
or options or stock appreciation rights in respect of any of such shares), or
set aside any funds for any of the foregoing purposes, or permit any of its
Subsidiaries to purchase or otherwise acquire for consideration any shares of
any class of the capital stock of a Borrower or any other Subsidiary, as the
case may be, now or hereafter outstanding (or any options or warrants or stock
appreciation rights issued by such Person with respect to its capital stock), or
(ii) pay any interest on subordinated Indebtedness permitted by Section
6.1(a)(iv) (payments under clauses (i) or (ii) being herein called a
"Distribution"); provided, however, that (x) any Subsidiary of Americold may pay
dividends to Americold, (y) Americold may pay dividends to Joint Venture solely
for the purpose of enabling the Joint Venture to pay operating expenses and to
pay the Secured Obligations, (z) in addition to payments permitted under clauses
(x) and (y), Americold may pay interest on any such permitted subordinated
Indebtedness and cash dividends if (i) prior to and after giving effect to such
payment no Default shall have occurred and be continuing, (ii) the aggregate
amount of such payments from and after the date hereof shall not exceed 100% of
the Adjusted Consolidated Net Income of Americold accrued during the period
(treated as one accounting period) from November 1, 1997 to the end of the most
recent fiscal quarter ending at least 45 days prior to the date of such payment,
and (iii) such payments may only be made once per calendar quarter and only if
Americold shall have delivered to Agent an Officer's Certificate certifying that
the conditions set forth in this Section 6.11 have been complied with and
providing the computations demonstrating compliance with this Section 6.11.
Section 6.12. Total Indebtedness to Total Capitalization.
Americold shall not permit the ratio of (x) the sum of the
outstanding principal amount of the JV Loan plus the aggregate principal amount
of Indebtedness of Americold and its Subsidiaries to (y) the sum of the amount
set forth in clause (x) plus Economic Net Worth of Americold and its
Subsidiaries to be greater than (a) at any time prior to March 1, 1998, 0.666 to
1.000 and (b) at any time thereafter, 0.600 to 1.000; provided, however, that
any portion of Indebtedness that is guaranteed by a Parent Guarantee shall not
be included in the computation of Indebtedness under this Section 6.12.
"Economic Net Worth" means (x) cash capital contributions to Americold from and
after the date of the merger under the Merger Agreement less (y) Distributions
made after the date hereof plus (or if a deficit minus) (z) cumulative Adjusted
Consolidated Net Income of Americold, computed in accordance with GAAP, accrued
during the period (treated as one accounting period) from November 1, 1997 to
the date of computation.
ARTICLE VII.
DEFAULTS
Section 7.1. Events of Default.
An Event of Default shall exist upon the occurrence of any of
the following specified events (each an "Event of Default"):
(a)......if a Borrower shall (i) default in the payment when
due of any principal owing hereunder or under any of its Notes (including any
prepayment required hereunder) or (ii) default, and such default shall continue
for three (3) or more days thereafter, in the payment when due of any interest,
fees or other amounts owing hereunder, under such Notes, under any of the other
Loan Documents or in connection herewith;
(b)......if either Borrower transfers or encumbers all or any
portion of the Collateral except pursuant to the Pledge Agreement, the Security
Agreements or the Mortgages;
(c)......if any representation or warranty made by either
Borrower or any Parent Guarantor herein or in any other Loan Document shall be
false or misleading in any material respect on or as of the date the
representation or warranty was made;
(d)......if either Borrower or their Subsidiaries (or when the
Parent Guaranty shall be in effect either Parent Guarantor) shall make an
assignment for the benefit of creditors, or if either Borrower or any of their
Subsidiaries shall generally not be paying its debts as they become due;
(e)......if a receiver, liquidator or trustee shall be
appointed for either Borrower or any of their Subsidiaries (or when the Parent
Guaranty shall be in effect either Parent Guarantor), or if either Borrower or
any of their Subsidiaries (or when the Parent Guaranty shall be in effect either
Parent Guarantor) shall be adjudicated a bankrupt or insolvent, or if any
petition for bankruptcy, reorganization or arrangement pursuant to federal
bankruptcy law, or any similar federal or state law, shall be filed by or
against, consented to, or acquiesced in by, either Borrower or any of their
Subsidiaries (or when the Parent Guaranty shall be in effect either Parent
Guarantor) or if any proceeding for the dissolution or liquidation of Borrower
or any of their Subsidiaries (or when the Parent Guaranty shall be in effect
either Parent Guarantor) shall be instituted; provided, however, if such
appointment, adjudication, petition or proceeding was involuntary and not
consented to by either Borrower or any of Borrowers' Subsidiaries (or when the
Parent Guaranty shall be in effect either Parent Guarantor), as applicable, upon
the same not being discharged, stayed or dismissed within sixty (60) days;
(f)......[Intentionally omitted];
(g)......if either Borrower breaches any of its covenants
contained in Section 3.5.1, Sections 5.6, 5.11 or 5.12 or Article VI hereof;
(h)......if an Event of Default as defined or described in any
of the other Loan Documents has occurred and is continuing;
(i)......if any Loan Document shall fail to be in full force
and effect or to give the Lender the liens, rights, powers and privileges
purported to be created thereby for ten (10) days after the notice to the
Borrowers from the Lender or any Borrower or ASC (or when the Parent Guaranty
shall be in effect either Parent Guarantor) shall so assert;
(j)......if either Borrower shall continue to be in default
under any of the other terms, covenants or conditions of this Credit Agreement
or any other Loan Document not specified in any other subsection of this Section
7.1 for ten (10) days after notice to such Borrower from the Lender;
(k)......Either Borrower or any of their Subsidiaries shall
with respect to Indebtedness having a principal amount in excess of $15,000,000
(i) default in any payment (beyond the applicable grace period with respect
thereto, if any) with respect to any such Indebtedness, or (ii) default in the
observance or performance of any agreement or condition relating to any such
Indebtedness or contained in any instrument or agreement evidencing, or relating
thereto, or any other event or condition shall occur or condition exist, the
effect of which default, in the case of either (i) or (ii), or other event or
condition would permit the holder or holders of such Indebtedness (or trustee or
agent on behalf of such holders) to cause (determined without regard to whether
any notice or lapse of time is required) any such Indebtedness to become due
prior to its stated maturity;
(l)......one or more final judgments or decrees shall be
entered against either Borrower or any of their Subsidiaries involving a
liability for which the creditor has recourse against any such Person of
$250,000 or more in any instance, or $1,000,000 or more in the aggregate for all
such judgments and decrees collectively (not paid or fully covered by insurance
provided by a carrier who has acknowledged coverage) and any such judgments or
decrees shall not have been vacated, discharged, paid or stayed or bonded
pending appeal within the time permitted to appeal therefrom; or
(m)......there shall occur any event which has had or will
impair the ability of either Borrower to pay the Loans when due and such event
has continued for a period of ten (10) days or, if Borrowers shall have provided
to Agent evidence of an ability to remedy the results of such event, a
reasonable period of time to permit Borrowers to implement such remedy
Section 7.2. Remedies.
Upon the occurrence of an Event of Default, the Lender may, by
written notice to each Borrower, take any of the following actions without
prejudice to the rights of the Lender to enforce its claims against each
Borrower, except as may otherwise be specifically provided for herein:
(a)......Acceleration of Loan. Declare the unpaid principal of
and any accrued interest in respect of the Loans and the Notes to be due,
whereupon the same shall be immediately due and payable without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by
each Borrower; provided, however, that, notwithstanding the foregoing, if an
Event of Default specified in Section 7.1(d) or (e) shall occur, then the Notes
and the Loans shall immediately become due and payable without the giving of any
notice or other action by the Lender;
(b)......Enforcement of Rights. Enforce any and all Liens and
security interests in favor of the Lender in respect of the Notes and the Loans
and any other amounts due, including, without limitation, all rights and
interests created and existing under the Loan Documents and all rights of
set-off;
(c)......Remedies with Respect to the Collateral. Exercise any
of the following rights with respect to the Collateral:
(i) foreclose upon all or any portion of the Collateral or
otherwise enforce the security interest in favor of the Lender in any
manner permitted by law or provided for in this Credit Agreement or in
Loan Documents;
(ii) recover from each Borrower all costs and expenses,
including, without limitation, reasonable attorneys' fees, incurred or
paid by the Lender in exercising any right, power or remedy provided by
this Credit Agreement or any other Loan Document or by law; and
(iii) apply the proceeds of any exercise of remedies by the
Lender with respect to any Collateral pursuant to the foregoing
provisions to payment of the following obligations, and the Lender may
account for the purchase price of any sale by crediting the sales price
against: (A) first, the expenses of the liquidation, sale or
collection, the costs of any action and any other costs or expenses for
which each Borrower is obligated; and (B) then, all other Secured
Obligations of such Borrower, including, without limitation, all
amounts then due, owing and unpaid for principal, interest and other
amounts under this Credit Agreement and the other Loan Documents in
such order and proportions as the Lender in its discretion may choose;
and
(d)......Other Remedies. Exercise any other right or remedy
available to the Lender under applicable law or in equity.
ARTICLE VIII.
AMERICOLD AND ASC GUARANTY OF JV OBLIGATIONS
Section 8.1. The Guaranty.
Subject to Section 8.9, Americold and ASC (for purposes of
this Article VIII only, Americold is herein referred to as a "Guarantor") hereby
jointly and severally guarantee to the Lender the payment by Joint Venture when
due (whether at maturity, as a mandatory prepayment, by acceleration or
otherwise) of all amounts owing under this Credit Agreement, the Note and any
other Loan Documents owing by Joint Venture, including, specifically but without
limitation, all principal, interest and other amounts now or hereafter owing in
connection with the JV Loan and/or the Note (hereinafter referred to
collectively as "JV Obligations"). This guaranty is a guaranty of payment and
not of collection.
Section 8.2. Obligations Independent.
The obligations of each Guarantor hereunder are independent of
the obligations of Joint Venture, and a separate action or actions may be
brought and prosecuted against each Guarantor, regardless of whether action is
brought against Joint Venture or whether Joint Venture is joined in any such
action or actions. Each Guarantor hereby waives the benefit of any statute of
limitations affecting its liability hereunder.
Section 8.3. Obligations Unconditional.
Each Guarantor agrees that its obligations under this Article
VIII are absolute and unconditional, irrespective of the value, genuineness,
validity, regularity or enforceability of any of the Loan Documents, or any
other agreement or instrument referred to therein, or any substitution, release
or exchange of any other guaranty of or security for the JV Obligations, and, to
the fullest extent permitted by applicable law, irrespective of any other
circumstance whatsoever (including, without limitation, personal defenses of the
Joint Venture) which might otherwise constitute a legal or equitable discharge
or defense of a surety, guarantor or co-obligor, it being the intent of this
Section 8.3 that the obligations of each Guarantor hereunder shall be absolute
and unconditional under any and all circumstances. Without limiting the
generality of the foregoing, it is agreed that the occurrence of any one or more
of the following shall not alter or impair the liability of each Guarantor
hereunder which shall remain absolute and unconditional as described above:
(a)......at any time or from time to time, without notice to
the Guarantors, the time for any performance of or compliance with the JV
Obligations may be extended, or such performance or compliance may be waived;
(b)......any of the acts required or contemplated in any of
the provisions of any of the Loan Documents or any other agreement or instrument
referred therein may be done or omitted;
(c)......the maturity of any of the JV Obligations may be
accelerated, or the maturity date of the Note executed by Joint Venture may be
extended, whether in accordance with Section 2.2.1 or otherwise, or any of the
JV Obligations may be modified, supplemented or amended in any respect, or any
right under any of the Loan Documents or any other agreement or instrument
referred to therein may be waived or extended or any other guaranty of any of
the JV Obligations or any security therefor may be released or exchanged in
whole or in part or otherwise dealt with;
(d)......the Lender receives and holds security for the
payment of the JV Obligations or any other indebtedness of Joint Venture to the
Lender and exchanges, enforces, waives, releases, fails to perfect, sells, or
otherwise disposes of any such security;
(e)......the Lender applies such security and directs the
order or manner of sale thereof as the Lender in its discretion may determine;
(f)......the Lender releases or substitutes any one or more of
any endorsers, pledgors or guarantors of the JV Obligations or any other
indebtedness of Joint Venture to the Lender;
(g)......any Lien granted to, or in favor of, the Lender as
security for any of the JV Obligations (or as security for the guaranty thereof
by each Guarantor) shall fail to attach or be perfected;
(h)......any of the JV Obligations or any Lien granted or
purported to be granted in respect thereof shall be determined to be void or
voidable or shall be subordinated to the claims of any Person; or
(i)......there shall occur any insolvency, bankruptcy,
reorganization or dissolution of Joint Venture or any other Person.
With respect to its obligations hereunder, each Guarantor
hereby expressly waives diligence, presentment, demand of payment, protest and
all notices whatsoever, and any requirement that the Lender exhaust any right,
power or remedy or proceed against any Person under any of the Loan Documents or
any other agreement or instrument referred to therein, or against any other
Person under any other guaranty of, or security for, or obligation relating to,
any of the JV Obligations.
Section 8.4. Reinstatement67.
The obligations of each Guarantor under this Article VIII
shall be automatically reinstated if and to the extent that for any reason any
payment or performance by or on behalf of any Person in respect of the JV
Obligations is rescinded or must be otherwise restored by any holder of any of
the JV Obligations, whether as a result of any proceedings in bankruptcy or
reorganization or otherwise, and each Guarantor agrees that it will pay to the
Lender on demand all reasonable out-of-pocket costs and expenses (including,
without limitation, fees of counsel) incurred by the Lender in connection with
such rescission or restoration, including any such costs and expenses incurred
in defending against any claim alleging that such payment constituted a
preference, fraudulent transfer or similar payment under any bankruptcy,
insolvency or similar law.
Section 8.5. Certain Additional Waivers.
Without limiting the generality of the provisions of any other
provision of this Article VIII, each Guarantor hereby specifically waives (a)
promptness, diligence, notice of acceptance and any other notice with respect to
any of the JV Obligations or any other obligations under the Loan Documents or
this Article VIII, (b) any requirement that the Lender or any other Person
protect, secure or insure any Lien or any property subject thereto or exhaust
any right or take any action against Joint Venture or any other Person or any
collateral or undertake any marshaling of assets, (c) any right to direct the
order of enforcement of remedies, (d) any defense arising by reason of any claim
or defense based upon an election of remedies by the Lender which in any manner
impairs, reduces, releases or otherwise adversely affects its subrogation,
contribution or reimbursement rights or other rights to proceed against the
Joint Venture or any other Person or any collateral, (e) any duty on the part of
the Lender to disclose to each Guarantor any matter, fact or thing relating to
the business, operation or condition of the Joint Venture or any other party to
any of the Loan Documents and their assets now known or hereafter known by the
Lender, and (f) all presentments, demands for performance, notices of
nonperformance, protests, notices of protest, notices of dishonor, and notices
of acceptance of the guaranty provided for in this Article VIII and of the
existence, creation, or incurrence of new or additional Indebtedness.
Section 8.6. Subordination.
Any obligations of the Joint Venture to a Guarantor, now or
hereafter existing, are hereby subordinated to the JV Obligations. Such
obligations of Joint Venture to such Guarantor shall, after the occurrence of
any Event of Default, be enforced and performance received by such Guarantor and
the proceeds thereof shall be paid over to the Lender on account of the JV
Obligations. In addition, each Guarantor hereby agrees not to exercise any
rights it may have for subrogation, indemnity, reimbursement or contribution
against Joint Venture for amounts paid by such Guarantor pursuant to this
Article VIII until such time as all JV Obligations have been indefeasibly paid
in full in cash.
Section 8.7. Remedies.
Each Guarantor agrees that, as between such Guarantor, on the
one hand, and the Lender, on the other hand, the JV Obligations may be declared
to be forthwith due and payable as provided in Section 7.1 hereof (and shall be
deemed to have become automatically due and payable in the circumstances
provided in said Section 7.1) for purposes of this Article VIII, notwithstanding
any stay, injunction or other prohibition preventing such declaration (or such
JV Obligations from becoming automatically due and payable) as against any other
Person and that, in the event of such declaration (or such JV Obligations being
deemed to have become automatically due and payable), such JV Obligations
(whether or not due and payable by any other Person) shall forthwith become due
and payable by each Guarantor for purposes of this Article VIII.
Section 8.8. Continuing Guaranty.
The guaranty in this Article VIII is a continuing guaranty and
shall apply to all JV Obligations whenever arising.
Section 8.9. Limitation on Effective Date of Guaranty
Under Article VIII.
This guaranty provided in this Article VIII, notwithstanding
anything to the contrary contained in this Article VIII, shall be effective only
on the first date that such guaranty can become effective without conflicting
with the financial covenants of the Mortgage Indenture and the Senior
Subordinated Indenture but if a portion of such guaranty may so become effective
on any date, such portion such become effective from and after such date.
ARTICLE IX.
ASC GUARANTY OF AMERICOLD OBLIGATIONS
Section 9.1. The Guaranty.
ASC (for purposes of this Article IX only, references to
"Guarantor" refer to ASC and not to any other Person) hereby guarantees to the
Lender the payment by Americold when due (whether at maturity, as a mandatory
prepayment, by acceleration or otherwise) of all amounts owing under this Credit
Agreement, the Note and any other Loan Documents owing by Americold, including,
specifically but without limitation, all principal, interest and other amounts
now or hereafter owing in connection with the Americold Loans and/or the Note
(hereinafter referred to collectively as "Americold Obligations"). This guaranty
is a guaranty of payment and not of collection.
Section 9.2. Obligations Independent.
The obligations of the Guarantor hereunder are independent of
the obligations of Americold, and a separate action or actions may be brought
and prosecuted against the Guarantor, regardless of whether action is brought
against Americold or whether Americold is joined in any such action or actions.
The Guarantor hereby waives the benefit of any statute of limitations affecting
its liability hereunder.
Section 9.3. Obligations Unconditional.
The Guarantor agrees that its obligations under this Article
IX are absolute and unconditional, irrespective of the value, genuineness,
validity, regularity or enforceability of any of the Loan Documents, or any
other agreement or instrument referred to therein, or any substitution, release
or exchange of any other guaranty of or security for the Americold Obligations,
and, to the fullest extent permitted by applicable law, irrespective of any
other circumstance whatsoever (including, without limitation, personal defenses
of Americold) which might otherwise constitute a legal or equitable discharge or
defense of a surety, guarantor or co-obligor, it being the intent of this
Section 9.3 that the obligations of the Guarantor hereunder shall be absolute
and unconditional under any and all circumstances. Without limiting the
generality of the foregoing, it is agreed that the occurrence of any one or more
of the following shall not alter or impair the liability of Guarantor hereunder
which shall remain absolute and unconditional as described above:
(a)......at any time or from time to time, without notice to
the Guarantor, the time for any performance of or compliance with the Americold
Obligations may be extended, or such performance or compliance may be waived;
(b)......any of the acts required or contemplated in any of
the provisions of any of the Loan Documents or any other agreement or instrument
referred therein may be done or omitted;
(c)......the maturity of any of the Americold Obligations may
be accelerated, or the maturity date of the Note executed by Americold may be
extended, whether in accordance with Section 2.2.1 or otherwise, or any of the
Americold Obligations may be modified, supplemented or amended in any respect,
or any right under any of the Loan Documents or any other agreement or
instrument referred to therein may be waived or extended or any other guaranty
of any of the Americold Obligations or any security therefor may be released or
exchanged in whole or in part or otherwise dealt with;
(d)......the Lender receives and holds security for the
payment of the Americold Obligations or any other indebtedness of Americold to
the Lender and exchanges, enforces, waives, releases, fails to perfect, sells,
or otherwise disposes of any such security;
(e)......the Lender applies such security and directs the
order or manner of sale thereof as the Lender in its discretion may determine;
(f)......the Lender releases or substitutes any one or more of
any endorsers, pledgors or guarantors of the Americold Obligations or any other
indebtedness of Americold to the Lender;
(g)......any Lien granted to, or in favor of, the Lender as
security for any of the Americold Obligations (or as security for the guaranty
thereof by the Guarantor) shall fail to attach or be perfected;
(h)......any of the Americold Obligations or any Lien granted
or purported to be granted in respect thereof shall be determined to be void or
voidable or shall be subordinated to the claims of any Person; or
(i)......there shall occur any insolvency, bankruptcy,
reorganization or dissolution of Americold or any other Person.
With respect to its obligations hereunder, the Guarantor
hereby expressly waives diligence, presentment, demand of payment, protest and
all notices whatsoever, and any requirement that the Lender exhaust any right,
power or remedy or proceed against any Person under any of the Loan Documents or
any other agreement or instrument referred to therein, or against any other
Person under any other guaranty of, or security for, or obligation relating to,
any of the Americold Obligations.
Section 9.4. Reinstatement.
The obligations of the Guarantor under this Article IX shall
be automatically reinstated if and to the extent that for any reason any payment
or performance by or on behalf of any Person in respect of the Americold
Obligations is rescinded or must be otherwise restored by any holder of any of
the Americold Obligations, whether as a result of any proceedings in bankruptcy
or reorganization or otherwise, and the Guarantor agrees that it will pay to the
Lender on demand all reasonable out-of-pocket costs and expenses (including,
without limitation, fees of counsel) incurred by the Lender in connection with
such rescission or restoration, including any such costs and expenses incurred
in defending against any claim alleging that such payment constituted a
preference, fraudulent transfer or similar payment under any bankruptcy,
insolvency or similar law.
Section 9.5. Certain Additional Waivers.
Without limiting the generality of the provisions of any other
provision of this Article IX, the Guarantor hereby specifically waives (a)
promptness, diligence, notice of acceptance and any other notice with respect to
any of the Americold Obligations or any other obligations under the Loan
Documents or this Article IX, (b) any requirement that the Lender or any other
Person protect, secure or insure any Lien or any property subject thereto or
exhaust any right or take any action against Americold or any other Person or
any collateral or undertake any marshaling of assets, (c) any right to direct
the order of enforcement of remedies, (d) any defense arising by reason of any
claim or defense based upon an election of remedies by the Lender which in any
manner impairs, reduces, releases or otherwise adversely affects its
subrogation, contribution or reimbursement rights or other rights to proceed
against Americold or any other Person or any collateral, (e) any duty on the
part of the Lender to disclose to the Guarantor any matter, fact or thing
relating to the business, operation or condition of Americold or any other party
to any of the Loan Documents and their assets now known or hereafter known by
the Lender, and (f) all presentments, demands for performance, notices of
nonperformance, protests, notices of protest, notices of dishonor, and notices
of acceptance of the guaranty provided for in this Article IX and of the
existence, creation, or incurrence of new or additional Indebtedness.
Section 9.6. Subordination.
Any obligations of Americold to the Guarantor, now or
hereafter existing, are hereby subordinated to the Americold Obligations. Such
obligations of Americold to the Guarantor shall, after the occurrence of any
Event of Default, be enforced and performance received by the Guarantor and the
proceeds thereof shall be paid over to the Lender on account of the Americold
Obligations. In addition, the Guarantor hereby agrees not to exercise any rights
it may have for subrogation, indemnity, reimbursement or contribution against
Americold for amounts paid by such Guarantor pursuant to this Article IX until
such time as all Americold Obligations have been indefeasibly paid in full in
cash.
Section 9.7. Remedies.
The Guarantor agrees that, as between such Guarantor, on the
one hand, and the Lender, on the other hand, the Americold Obligations may be
declared to be forthwith due and payable as provided in Section 7.1 hereof (and
shall be deemed to have become automatically due and payable in the
circumstances provided in said Section 7.1) for purposes of this Article IX,
notwithstanding any stay, injunction or other prohibition preventing such
declaration (or such Americold Obligations from becoming automatically due and
payable) as against any other Person and that, in the event of such declaration
(or such Americold Obligations being deemed to have become automatically due and
payable), such Americold Obligations (whether or not due and payable by any
other Person) shall forthwith become due and payable by the Guarantor for
purposes of this Article IX.
Section 9.8. Continuing Guaranty.
The guaranty in this Article IX is a continuing guaranty and
shall apply to all Americold Obligations whenever arising.
ARTICLE X.
MISCELLANEOUS
Section 10.1. Survival.
This Credit Agreement and all covenants, agreements,
indemnities, representations and warranties made herein and in the certificates
delivered pursuant hereto shall survive the making by the Lender of the Loans
and the execution and delivery to the Lender of the Notes, and shall continue in
full force and effect so long as all or any of the Secured Obligations is
outstanding and unpaid or the Lender has any obligation to provide financing
hereunder. Whenever in this Credit Agreement any Person is referred to, such
reference shall be deemed to include the legal representatives, successors and
assigns of such Person (provided that the foregoing shall not be deemed to
permit any transfer of any ownership interest that is otherwise prohibited
hereunder). All covenants, promises and agreements in this Credit Agreement
contained, by or on behalf of each Borrower or ASC shall inure to the benefit of
the successors and assigns of the Lender.
Section 10.2. Governing Law; Consent to Jurisdiction.
(a)......THIS CREDIT AGREEMENT WAS NEGOTIATED IN THE STATE OF
NEW YORK, AND MADE BY THE LENDER AND ACCEPTED BY EACH BORROWER AND ASC IN THE
STATE OF NEW YORK, AND THE PROCEEDS OF THE NOTES DELIVERED PURSUANT HERETO WERE
DISBURSED FROM THE STATE OF NEW YORK, WHICH STATE THE PARTIES AGREE HAS A
SUBSTANTIAL RELATIONSHIP TO THE PARTIES AND TO THE UNDERLYING TRANSACTION
EMBODIED HEREBY, AND IN ALL RESPECTS, INCLUDING MATTERS OF CONSTRUCTION,
VALIDITY AND PERFORMANCE, THIS CREDIT AGREEMENT AND THE OBLIGATIONS ARISING
HEREUNDER OR UNDER ANY OTHER LOAN DOCUMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS
MADE AND PERFORMED IN SUCH STATE AND ANY APPLICABLE LAW OF THE UNITED STATES OF
AMERICA. TO THE FULLEST EXTENT PERMITTED BY LAW, EACH BORROWER AND ASC HEREBY
UNCONDITIONALLY AND IRREVOCABLY WAIVE ANY CLAIM TO ASSERT THAT THE LAW OF ANY
OTHER JURISDICTION GOVERNS THIS CREDIT AGREEMENT, THE NOTES AND ANY OTHER LOAN
DOCUMENT, AND THIS CREDIT AGREEMENT AND THE NOTES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK PURSUANT TO ss.
5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.
(b)......ANY LEGAL SUIT, ACTION OR PROCEEDING AGAINST THE
LENDER OR ANY BORROWER OR ASC ARISING OUT OF OR RELATING TO THIS CREDIT
AGREEMENT SHALL BE INSTITUTED IN ANY FEDERAL OR STATE COURT IN NEW YORK, NEW
YORK, PURSUANT TO ss. 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW, AND EACH
OF THE BORROWER AND ASC WAIVE ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE
TO THE LAYING OF VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING AND HEREBY
IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY SUCH COURT IN ANY SUIT, ACTION OR
PROCEEDING. EACH BORROWER AND ASC DOES HEREBY DESIGNATE AND APPOINT VORNADO,
WITH OFFICES AT PARK 80 WEST PLAZA II, SADDLE BROOK, NEW JERSEY 07663, OR AT
SUCH OTHER OFFICE IN NEW YORK, NEW YORK, AS ITS AUTHORIZED AGENT TO ACCEPT AND
ACKNOWLEDGE ON ITS BEHALF SERVICE OF ANY AND ALL PROCESS WHICH MAY BE SERVED IN
ANY SUCH SUIT, ACTION OR PROCEEDING IN ANY FEDERAL OR STATE COURT IN NEW YORK,
NEW YORK, AND AGREES THAT SERVICE OF PROCESS UPON SAID AGENT AT SAID ADDRESS AND
WRITTEN NOTICE OF SAID SERVICE OF BORROWER OR ASC, AS APPLICABLE, MAILED OR
DELIVERED TO SUCH BORROWER OR ASC IN THE MANNER PROVIDED HEREIN SHALL BE DEEMED
IN EVERY RESPECT EFFECTIVE SERVICE OF PROCESS UPON SUCH BORROWER OR ASC IN ANY
SUCH SUIT, ACTION OR PROCEEDING IN THE STATE OF NEW YORK. EACH BORROWER AND ASC
EACH (I) SHALL GIVE PROMPT NOTICE TO THE AGENT ON BEHALF OF THE LENDER OF ANY
CHANGED ADDRESS OF ITS AUTHORIZED AGENT HEREUNDER, (II) MAY AT ANY TIME AND FROM
TIME TO TIME DESIGNATE A SUBSTITUTE AUTHORIZED AGENT WITH AN OFFICE IN NEW YORK,
NEW YORK (WHICH OFFICE SHALL BE DESIGNATED AS THE ADDRESS FOR SERVICE OF
PROCESS), AND (III) SHALL PROMPTLY DESIGNATE SUCH A SUBSTITUTE IF ITS AUTHORIZED
AGENT CEASES TO HAVE AN OFFICE IN NEW YORK, NEW YORK OR IS DISSOLVED WITHOUT
LEAVING A SUCCESSOR.
(c)......Each Borrower and ASC hereby irrevocably waive any
objection which it may now or hereafter have to the laying of venue of any of
the aforesaid actions or proceedings arising out of or in connection with this
Credit Agreement or any other Loan Document brought in the courts referred to in
subsection (b) hereof and hereby further irrevocably waives and agrees not to
plead or claim in any such court that any such action or proceeding brought in
any such court has been brought in an inconvenient forum.
Section 10.3. Modification, Waiver in Writing.
No modification, amendment, extension, discharge, termination
or waiver of any provision of this Credit Agreement, the Notes or any other Loan
Document, nor consent to any departure by any Borrower or ASC therefrom, shall
in any event be effective unless the same shall be in a writing signed by the
party against whom enforcement is sought, and then such waiver or consent shall
be effective only in the specific instance, and for the purpose, for which
given. Except as otherwise expressly provided herein, no notice to, or demand on
any Borrower or ASC shall entitle such Borrower or ASC to any other or future
notice or demand in the same, similar or other circumstances.
Section 10.4. Delay Not a Waiver.
Neither any failure nor any delay on the part of the Lender in
insisting upon strict performance of any term, condition, covenant or agreement,
or exercising any right, power, remedy or privilege hereunder, or under the
Notes or under any other Loan Document, or any other instrument given as
security therefor, shall operate as or constitute a waiver thereof, nor shall a
single or partial exercise thereof preclude any other future exercise, or the
exercise of any other right, power, remedy or privilege. In particular, and not
by way of limitation, by accepting payment after the due date of any amount
payable under this Credit Agreement, the Notes or any other Loan Document, the
Lender shall not be deemed to have waived any right either to require prompt
payment when due of all other amounts due under this Credit Agreement, the Notes
or the other Loan Documents, or to declare a default for failure to effect
prompt payment of any such other amount.
Section 10.5. Notices.
All notices, consents, approvals and requests required or
permitted hereunder or under any other Loan Document shall be given in writing
and shall be effective for all purposes if hand delivered or sent by (a)
certified or registered United States mail, postage prepaid, or (b) expedited
prepaid delivery service, either commercial or United States Postal Service,
with proof of attempted delivery, addressed as follows (or at such other address
and person as shall be designated from time to time by any party hereto, as the
case may be, in a written notice to the other parties hereto in the manner
provided for in this Section):
If to the Lender:
Goldman Sachs Mortgage Company
85 Broad Street
New York, New York 10004
Attention: Mark J. Kogan
with a copy to:
Willkie Farr & Gallagher
153 E. 53rd Street
New York, New York 10022
Attention: Eugene A. Pinover, Esq.
If to Joint Venture, Americold or ASC:
Americold Corporation
7007 Southwest Cardinal Lane
Suite 135
Portland, Oregon 97224
Attention: Joel Smith, Chief Financial Officer
with a copy to:
Vornado Realty Trust
Park 80 West Plaza II
Saddle Brook, New Jersey 07663
Attention: President
Attention: Chief Financial Officer
with a copy to:
Sullivan & Cromwell
125 Broad Street
New York, New York
Attention: Janet Geldzahler, Esq.
A notice shall be deemed to have been given: in the case of
hand delivery, at the time of delivery; in the case of registered or certified
mail when delivered or on the third Business Day after sent to the address set
forth above, postage prepaid, or, if earlier, upon the delivery (or refusal
thereof) thereof.
Section 10.6. Trial by Jury.
EACH BORROWER AND ASC HEREBY AGREE NOT TO ELECT A TRIAL BY
JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVES ANY RIGHT TO TRIAL BY
JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST WITH
REGARD TO THE LOAN DOCUMENTS, OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING
IN CONNECTION THEREWITH. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN
KNOWINGLY AND VOLUNTARILY BY EACH BORROWER, AND IS INTENDED TO ENCOMPASS
INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY
JURY WOULD OTHERWISE ACCRUE. THE LENDER IS HEREBY AUTHORIZED TO FILE A COPY OF
THIS PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY EACH
BORROWER AND ASC.
Section 10.7. Headings.
The Article and/or Section headings and the Table of Contents
in this Credit Agreement are included herein for convenience of reference only
and shall not constitute a part of this Credit Agreement for any other purpose.
Section 10.8. Severability67.
Wherever possible, each provision of this Credit Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Credit Agreement shall be
prohibited by or invalid under applicable law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Credit Agreement.
Section 10.9. Preferences.
The Lender shall have the continuing and exclusive right to
apply or reverse and reapply any and all payments by any Borrower or ASC to any
portion of the obligations of such Borrower or ASC hereunder. To the extent
Borrower or ASC makes a payment or payments to the Lender, which payment or
proceeds or any part thereof are subsequently invalidated, declared to be
fraudulent or preferential, set aside or required to be repaid to a trustee,
receiver or any other party under any bankruptcy law, state or federal law,
common law or equitable cause, then, to the extent of such payment or proceeds
received, the obligations hereunder or part thereof intended to be satisfied
shall be revived and continue in full force and effect, as if such payment or
proceeds had not been received by the Lender. The foregoing is without
limitation of the rights in favor of the Lender set forth in Article VIII or
Article IX.
Section 10.10. Waiver of Notice.
None of the Borrowers or ASC shall be entitled to any notices
of any nature whatsoever from the Lender except with respect to matters for
which this Credit Agreement or the other Loan Documents specifically and
expressly provide for the giving of notice by the Lender to a Borrower or ASC
and except with respect to matters for which any Borrower or ASC is not,
pursuant to applicable law, permitted to waive the giving of notice. Each
Borrower and ASC hereby expressly waive the right to receive any notice from the
Lender with respect to any matter for which this Credit Agreement or the other
Loan Documents do not specifically and expressly provide for the giving of
notice by the Lender to any Borrower or ASC.
Section 10.11. Remedies of Borrower and ASC.
In the event that a claim or adjudication is made that the
Lender has acted unreasonably or unreasonably delayed acting in any case where
by law or under this Credit Agreement or the other Loan Documents, the Lender
has an obligation to act reasonably or promptly, each Borrower and ASC agree
that neither the Lender, nor its agent, shall be liable for any monetary
damages, and such Borrower's or ASC's sole remedies shall be limited to
commencing an action seeking injunctive relief or declaratory judgment, except
in any case where it is determined that the Lender has acted with gross
negligence or willful misconduct. The parties hereto agree that any action or
proceeding to determine whether a Borrower or ASC has acted reasonably shall be
determined by an action seeking declaratory judgment.
Section 10.12. Expenses; Indemnity.
(a)......Each Borrower covenants and agrees to reimburse the
Lender upon receipt of written notice from the Lender for all reasonable
out-of-pocket costs and expenses (including reasonable attorneys' fees and
disbursements) incurred by or on behalf of the Lender in connection with (i) the
preparation, negotiation, execution and delivery of this Credit Agreement and
the other Loan Documents, and the consummation of the transactions contemplated
hereby and thereby; (ii) Borrowers' ongoing performance of and compliance with
Borrowers' respective agreements and covenants contained in this Credit
Agreement and the other Loan Documents on its respective part to be performed or
complied with after the Closing Date; (iii) the negotiation, preparation,
execution, delivery and administration of any consents, amendments (including
modifications pursuant to Section 10.33), waivers or other modifications to this
Credit Agreement and the other Loan Documents whether requested by either
Borrower or the Lender and any other documents or matters requested by the
Lender (whether or not any of the foregoing become effective); (iv) reasonable
fees and expenses of counsel for providing to the Lender all required legal
opinions; (v) enforcing or preserving any rights, in response to third party
claims or the prosecuting or defending of any action or proceeding or other
litigation, in each case against, under or affecting a Borrower, this Credit
Agreement, the other Loan Documents, the Properties or any other security given
for the Loans; and (vi) enforcing any obligations of or collecting any payments
due from a Borrower under this Credit Agreement, the other Loan Documents or
with respect to the Properties or in connection with any refinancing or
restructuring of the credit arrangements provided under this Credit Agreement in
the nature of a "work-out" or of any insolvency or bankruptcy proceedings;
provided, however, no Borrower shall be liable for the payment of any such costs
and expenses to the extent the same arise by reason of the gross negligence,
illegal acts, fraud or willful misconduct of the Lender.
(b)......Each Borrower shall indemnify and hold harmless the
Lender from and against any and all other liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, claims, costs, expenses and
disbursements of any kind or nature whatsoever (including the reasonable fees
and disbursements of counsel for the Lender in connection with any
investigative, administrative or judicial proceeding commenced or threatened,
whether or not the Lender shall be designated a party thereto), that may be
imposed on, incurred by, or asserted against the Lender in any manner relating
to or arising out of any breach by a Borrower of its obligations under, or any
material misrepresentation by a Borrower contained in this Credit Agreement or
the other Loan Documents or with respect to any environmental matter related to
any Property; provided, however, a Borrower shall not be liable for the payment
of any such costs and expenses to the extent the same arise by reason of the
gross negligence, illegal acts, fraud or willful misconduct of the Lender.
Section 10.13. Exhibits and Schedules Incorporated.
The Exhibits and Schedules annexed hereto are hereby
incorporated herein as a part of this Credit Agreement with the same effect as
if set forth in the body hereof.
Section 10.14. Offsets, Counterclaims and Defenses.
Any assignee of the Lender's interest in and to this Credit
Agreement, the Notes and the other Loan Documents shall take the same free and
clear of all offsets, counterclaims or defenses which are unrelated to such
documents which a Borrower or ASC may otherwise have against any assignor of
such documents, and no such unrelated counterclaim or defense shall be
interposed or asserted by a Borrower or ASC in any action or proceeding brought
by any such assignee upon such documents and any such right to interpose or
assert any such unrelated offset, counterclaim of defense in any such action or
proceeding is hereby expressly waived by Borrower.
Section 10.15. No Joint Venture or Partnership.
The parties hereto intend that the relationships created
hereunder and under the other Loan Documents be solely that of borrower,
guarantor and lender. Nothing herein or therein is intended to create a joint
venture, partnership, tenancy-in-common, or joint tenancy relationship between
or among the parties hereto nor to grant the Lender any interest other than that
of lender secured pursuant to the terms of the Loan Documents.
Section 10.16. Publicity.
All news releases, publicity or advertising by Borrower or its
Affiliates or by Goldman, Agent or any Lender which it controls through any
media intended to reach the general public which refers to the Loan Documents or
the financing evidenced by the Loan Documents, Goldman, or the Lender shall be
subject to the prior written approval of the Lender and each Borrower which
shall not be unreasonably withheld or delayed; provided, however, that nothing
in this Section 10.16 shall prevent any disclosure permitted by Section 10.28 or
which is otherwise required by law.
Section 10.17. Waiver of Marshaling of Assets.
To the fullest extent each Borrower or ASC may legally do so,
each such Person waives all rights to a marshaling of the assets of such Person,
its partners, if any, and others with interests in such Person, or to a sale in
inverse order of alienation in the event of foreclosure of the interests hereby
created, and agrees not to assert any right under any laws pertaining to the
marshaling of assets, the sale in inverse order of alienation, homestead
exemption, the administration of estates of decedents, or any other matters
whatsoever to defeat, reduce or affect the right of the Lender under the Loan
Documents to a sale of the Collateral for the collection of the Secured
Obligations without any prior or different resort for collection, of the right
of the Lender to the payment of the Secured Obligations out of the net proceeds
of the Collateral or any interest therein in preference to every other claimant
whatsoever. In addition, each Borrower and ASC each, for itself and its
successors and assigns, waives in the event of foreclosure of any or all of the
Liens, any equitable right otherwise available to each Borrower or ASC which
would require the separate sale of the Collateral or the Lender to exhaust its
remedies against any part of the Collateral before proceeding against any other
part or parts thereof; and further in the event of such foreclosure each
Borrower and ASC do hereby expressly consent to and authorize, at the option of
the Lender, the foreclosure and sale either separately or together of any or all
of the Collateral.
Section 10.18. Waiver of Counterclaim.
Each Borrower and ASC each hereby waives the right to assert a
counterclaim, other than a compulsory counterclaim, in any action or proceeding
brought against it by the Lender, or its agents.
Section 10.19. Conflict; Construction of Documents.
In the event of any conflict between the provisions of this
Credit Agreement and any of the other Loan Documents, the provisions of this
Credit Agreement shall control. The parties hereto acknowledge that they were
represented by counsel in connection with the negotiation and drafting of the
Loan Documents and that such Loan Documents shall not be subject to the
principle of construing their meaning against the party which drafted same.
Section 10.20. Brokers and Financial Advisors.
Each of the Lender and each Borrower hereby represents that it
has dealt with no financial advisors, brokers, underwriters, placement agents,
agents or traders in connection with the transactions contemplated by this
Credit Agreement. Each Borrower hereby indemnifies the Lender and holds it
harmless from and against any and all claims, liabilities, costs and expenses of
any kind in any way relating to or arising from a claim by any Person that such
Person acted on behalf of such Borrower in connection with the transactions
contemplated herein. The Lender indemnifies each Borrower and holds them
harmless from and against any and all claims, liabilities, costs and expenses of
any kind in any way relating to or arising from a claim by any Person that such
Person acted on behalf of the Lender in connection with the transactions
contemplated herein. The provisions of this Section shall survive the expiration
and termination of this Credit Agreement and the repayment of the Secured
Obligations.
Section 10.21. No Third Party Beneficiaries.
This Credit Agreement and the other Loan Documents are solely
for the benefit of the Lender, each Borrower and ASC, and nothing contained in
this Credit Agreement or the other Loan Documents shall be deemed to confer upon
anyone other than such Persons any right to insist upon or to enforce the
performance or observance of any of the obligations contained herein or therein.
All conditions to the obligations of the Lender to make the Loan hereunder are
imposed solely and exclusively for the benefit of the Lender, and no other
Person shall have standing to require satisfaction of such conditions in
accordance with their terms or be entitled to assume that the holder of the
Loans will refuse to make the Loans in the absence of strict compliance with any
or all thereof and no other Person shall under any circumstances be deemed to be
a beneficiary of such conditions, any or all of which may be freely waived in
whole or in part by the Lender if, in its sole discretion, it deems it advisable
or desirable to do so.
Section 10.22. Prior Agreements.
This Credit Agreement and the other Loan Documents contain the
entire agreement of the parties hereto and thereto in respect of the
transactions contemplated hereby and thereby, and all prior agreements among or
between such parties, whether oral or written, among the Borrowers, ASC and the
Lender, in each case with respect to the subject matter hereof, are superseded
by the terms of this Credit Agreement and the other Loan Documents.
Section 10.23. Counterparts.
This Credit Agreement may be executed in any number of
counterparts, each of which where so executed and delivered shall be an
original, but all of which shall constitute one and the same instrument. It
shall not be necessary in making proof of this Credit Agreement to produce or
account for more than one such counterpart.
Section 10.24. Right of Set-Off.
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 and during the continuance of an Event of Default, the
Lender is authorized at any time and from time to time, without presentment,
demand, protest or other notice of any kind (all of which rights being hereby
expressly waived), to set-off and to appropriate and apply any and all deposits
(general or special) and any other indebtedness at any time held or owing by the
Lender (including, without limitation, branches, agencies or Affiliates of the
Lender wherever located) to or for the credit or the account of each Borrower or
ASC (to the extent such credit or account is for the benefit of such Borrower or
ASC), against the obligations and liabilities of such Borrower or ASC to the
Lender hereunder, under the Notes, the other Loan Documents or otherwise,
irrespective of whether the Lender shall have made any demand hereunder and
although such obligations, liabilities or claims, or any of them, may be
contingent or unmatured, and any such set-off shall be deemed to have been made
immediately upon the occurrence of an Event of Default even though such charge
is made or entered on the books of the Lender subsequent thereto.
Section 10.25. Payment of Expenses, Etc.
Each Borrower agrees to:
(i) pay and hold the Lender harmless from and against any and
all present and future stamp and other similar taxes and save the
Lender 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 the Lender) to pay such taxes;
(ii) indemnify the Lender, its officers, directors, employees,
representatives and agents from and hold each of them harmless against
any and all losses, liabilities, claims, damages or expenses incurred
by any of them as a result of, or arising out of, or in any way related
to, or by reason of, any investigation, litigation or other proceeding
(whether or not the Lender is a party thereto) related to the entering
into and/or performance of any Loan Document or the use of proceeds of
the Loans (including other extensions of credit) hereunder or the
consummation of any other transactions contemplated in any Loan
Document, including, without limitation, the reasonable fees and
disbursements of counsel incurred in connection with any such
investigation, litigation or other proceeding (but excluding any such
losses, liabilities, claims, damages or expenses to the extent incurred
by reason of gross negligence, willful misconduct or fraudulently on
the part of the Person to be indemnified);
(iii) defend, indemnify and pay the Lender, its officers,
directors, employees, representatives and agents from and hold each of
them harmless against any and all losses, liabilities, claims, damages
or expenses incurred by any of them as a result of, or arising out of,
or by reason of, any investigation, litigation or other proceeding
(whether or not the Lender is a party thereto) related to the actual or
alleged presence of Hazardous Materials in violation of any
Environmental Law in the air, surface water, groundwater, surface or
subsurface of any Property owned or at any time operated by a Borrower
or any of its Subsidiaries, the generation, storage, transportation or
disposal of Hazardous Materials at any location owned or operated by a
Borrower or any of its Subsidiaries, the non-compliance at any Property
owned or at any time operated by a Borrower or any of its Subsidiaries
with federal, state and local laws, regulations, and ordinances
(including applicable permits thereunder) applicable to any Property
owned or at any time operated by a Borrower or any of its Subsidiaries,
or any Environmental Claim asserted against a Borrower, any of its
Subsidiaries or any Property owned or at any time operated by a
Borrower or any of its Subsidiaries, including, in each case, without
limitation, the actual reasonable fees and disbursements of counsel and
other consultants incurred in connection with any such investigation,
litigation or other proceeding (but excluding any losses, liabilities,
claims, damages or expenses to the extent incurred by reason of the
gross negligence or willful misconduct of the Person to be
indemnified). To the extent that the undertaking to defend, indemnify,
pay or hold harmless the Lender set forth in the preceding sentence may
be unenforceable because it is violative of any law or public policy,
the Borrowers shall make the maximum contribution to the payment and
satisfaction of each of the indemnified liabilities which is
permissible under applicable law; and
(iv) pay, from time to time, all intangible recording taxes
applicable to the transaction evidenced hereby, including late fees,
penalties and interest, if any.
Section 10.26. Amendments, Waivers and Consents.
Neither this Credit Agreement nor any other Loan Document nor
any of the terms hereof or thereof may be amended, changed, waived, discharged
or terminated, nor shall any consent or approval be deemed granted hereunder,
unless such amendment, change, waiver, discharge, termination, consent or
approval is in writing signed by the Lender.
Section 10.27. Benefit of Agreement.
(a)......Generally. This Credit Agreement shall be binding
upon and inure to the benefit of and be enforceable by the respective successors
and assigns of the parties hereto; provided that no Borrower nor ASC may assign
or transfer any of its interests without prior written consent of the Lender;
and provided, further, that the rights of the Lender to transfer, assign or
grant participations in its rights and/or obligations hereunder shall be limited
as set forth in this Section.
(b)......Assignments. The Lender may, in the ordinary course
of its business and in accordance with applicable law, assign all or a portion
of its rights and obligations hereunder to a bank or other financial institution
pursuant to an assignment agreement; provided that any such assignment shall be
in a minimum aggregate amount of $5,000,000 and in integral multiples of
$500,000 above such amount (or in the entire amount of such lesser amount as may
then be held by the assigning Lender) and that each such assignment shall be of
a constant, not varying, percentage of all of the assigning Lender's rights and
obligations under this Credit Agreement. Any assignment hereunder shall be
effective upon satisfaction of the conditions set forth in the preceding
sentence and delivery to the Lender of written notice of the assignment together
with a transfer fee of $2,500 payable to the Lender for its own account. Upon
the effectiveness of any such assignment, the assignee shall become a "Lender"
for all purposes of this Credit Agreement and the other Loan Documents and, to
the extent of such assignment, the assigning Lender shall be relieved of its
obligations hereunder to the extent of the amount being assigned. The Borrowers
shall at the request of Goldman enter into such amendments to this Agreement and
the other Loan Documents in order to provide for an agent to administer this
Credit Agreement on behalf of the Lenders. Along such lines, Joint Venture and
Americold agree that upon effectiveness of any such assignment and surrender of
the appropriate Notes, it will promptly provide to the assigning Lender and to
the assignee separate promissory notes in the amount of their respective
interests substantially in the forms of Exhibits A-1 and A-2, respectively (but,
if applicable, with notation thereon that it is given in substitution for and
replacement of the original Notes or any replacement notes thereof).
If, pursuant to this subsection, any interest in this Credit
Agreement or any Notes is transferred to any transferee which is organized under
the laws of any jurisdiction other than the United States or any state thereof,
the transferor Lender shall cause such transferee, concurrently with the
effectiveness of such transfer, (i) to represent to the transferor Lender (for
the benefit of the transferor Lender, and each Borrower) that under applicable
law and treaties no income, franchise, corporate, capital, stamp or other taxes,
levies, duties, imports, deductions, charges or fees of any nature will be
required to be withheld by the Borrowers, or the transferor Lender with respect
to any payments to be made to such transferee in respect of the Loans, (ii) to
furnish to the transferor Lender either U.S. Internal Revenue Service Form 4224
or U.S. Internal Revenue Service Form 1001 (wherein such transferee claims
entitlement to complete exemption from U.S. federal withholding tax on all
interest payments hereunder) and (iii) to agree (for the benefit of the
transferor Lender and the Borrowers) to provide the transferor Lender a new Form
4224 or Form 1001 upon the expiration or obsolescence of any previously
delivered form and comparable statements in accordance with applicable U.S. laws
and regulations and amendments duly executed and completed by such transferee,
and to comply from time to time with all applicable U.S. laws and regulations
with regard to such withholding tax exemption.
(c)......Participations. Subject to obtaining the prior
consent of Goldman, , each Lender may, in the ordinary course of its business,
and in accordance with applicable law, sell, transfer, agent or assign
participations in all or any part of such Lender's interests and obligations
hereunder; provided that (i) such selling Lender shall remain a "Lender" for all
purposes under this Credit Agreement (such selling Lender's obligations under
the Loan Documents remaining unchanged) and the participant shall not constitute
a Lender hereunder, (ii) no such participant shall have, or be granted, rights
to approve any amendment or waiver relating to this Credit Agreement or the
other Loan Documents except to the extent any such amendment or waiver would (A)
reduce the principal of or rate of interest on or fees in respect of the Loans,
(B) postpone the date fixed for any payment of principal (including extension of
the Final Maturity Date but excluding any mandatory prepayment), interest or
fees in which the participant is participating, or (C) release all or
substantially all of the guaranties or the collateral (except as expressly
provided in the Loan Documents) supporting the Loans, (iii) sub-participations
by the participant shall be prohibited, and (iv) each participation must be in a
minimum amount of $5,000,000 and in integral multiples of $500,000 (or in the
entire amount of such lesser amount as may then be held by the selling Lender).
In the case of any such participation, the participant shall not have any rights
under this Credit Agreement or the other Loan Documents (the participant having
rights against the selling Lender in respect of such participation as set forth
in the participation agreement with such Lender creating such participation) and
all amounts payable by the Borrowers hereunder shall be determined as if such
Lender had not sold such participation. The Borrowers agree that a Lender shall
have the right to disclose all information it has received from the Borrowers to
potential assignees or participants on a confidential basis pursuant to a
confidentiality agreement acceptable to the Borrowers and consistent with
Section 10.28.
(d)......Assignments to Federal Reserve Bank. Notwithstanding
any other provision contained in this Credit Agreement or any other Loan
Document to the contrary, any Lender may assign all or any portion of the Loans
or Notes held by it to any Federal Reserve Bank or the United States Treasury as
collateral security pursuant to Regulation A of the Board of Governors of the
Federal Reserve System and any Operating Circular issued by such Federal Reserve
Bank; provided that any payment in respect of such assigned Loan or Notes made
by the Borrowers to or for the account of the assigning and/or pledging Lender
in accordance with the terms of this Credit Agreement shall satisfy the
Borrowers' obligations hereunder in respect of such assigned Loan or Notes to
the extent of such payment. No such assignment shall release the assigning
Lender from its obligations hereunder.
Section 10.28. Confidentiality.
The Lender agrees to hold confidential any nonpublic
information that it may receive from the Borrowers pursuant to or in connection
with this Credit Agreement (hereinafter, "confidential information"), except for
disclosures: (a) specifically authorized by a Borrower; (b) to any actual or
prospective permitted transferee or assignee of, or participant in, any part of
any Lender's interest in the Loans, provided such Person has agreed in writing
for the benefit of the Borrowers and the selling Lender to hold such information
confidential in accordance with the terms of this Section; (c) to legal counsel,
accountants and other professional advisors to the Lender, so long as the Lender
shall inform such Persons of the confidential nature of such information and
shall direct them to treat such information confidentially, and to appraisers in
the ordinary course of business; (d) to regulatory officials having jurisdiction
over the Lender; (e) which the Lender has been advised by counsel believes may
be required by law, or which are otherwise required by legal process to which
the Lender or any Person to whom disclosure is permitted hereunder is a party or
in connection with the assertion by the Lender in any judicial or nonjudicial
proceeding of any claim, counterclaim or defense against any Borrower; or (f) of
information which has previously become publicly available through the actions
of a Person other the Lender. Notwithstanding the foregoing, in no event shall
the Lender have any liability for the disclosure of any confidential information
by any Person to whom confidential information was disclosed by the Lender in
compliance with the provisions of this Credit Agreement.
Section 10.29. No Obligations of Goldman, Sachs & Co.
Notwithstanding anything to the contrary herein or in the
other Loan Documents, each Borrower and ASC agree that neither Goldman, Sachs &
Co. nor any of its partners, officers, employees or agents shall have any
liability (contractually or otherwise) in respect of the Loan or any other
obligations arising under the Loan Documents.
Section 10.30. Cooperation.
Each Borrower hereby agrees that it and (as applicable) each
of its respective principals, members, officers, representatives, affiliates and
controlling persons shall:
(a)......Provide (or cause its affiliates to provide) the
Lender with any information in Borrowers' possession or which can be obtained by
the Borrower without any material expense and which can be disclosed without
violating any applicable law or breaching any applicable confidentiality
requirement (including financial information) that, in the reasonable opinion of
the Lender, is necessary or desirable (for legal disclosure or marketing
purposes) to include in any information memorandum or other disclosure documents
or marketing materials used in connection with any syndication of the Loan by
the Lender; and
(b)......From time to time at the request of the Lender meet
with prospective purchasers of an interest in the Loan to discuss the
Properties, the Borrowers and their Affiliates, the Borrowers' business, the
Loans and any other matters that, in the reasonable opinion of the Lender, are
relevant in connection with the syndication of the Loans; provided that
Borrowers shall not be required to disclose any information that would cause the
Borrowers to be in violation of any applicable law or in breach of any
applicable confidentiality requirement.
Section 10.31. No Recourse to Partners of Joint Venture or
Common Stock Joint Venture.
Notwithstanding anything to the contrary herein or in the
other Loan Documents, the Agent and the Lenders agree that no general or limited
partner, member or stockholer of Joint Venture, nor any of their partners,
officers, employees or agents shall in such capacity have any liability
(contractually or otherwise) in respect of the Loan or any other obligations
arising under the Loan Documents. Nothing in this Section 10.31 shall relieve
the Borrowers or ASC of any such liability.
Section 10.32. Agency.
Each Lender under this Credit Agreement hereby appoints
Goldman as its Agent (the "Agent"), and authorizes the Agent to act as its agent
in the administration of the Credit Agreement and the other Loan Documents,
including the right to act as the secured party pledgee, assignee or mortgagee
with respect to any Collateral on behalf of all the Lenders and to take all
actions permitted to be taken by the Agent under any Loan Document. The Agent
may appoint any reputable financial institution as a successor agent at any time
upon five (5) days' prior written notice to Borrowers, such appointment to be
effective upon acceptance thereof by the successor.
Section 10.33. Reorganization.ion
The parties hereto acknowledge that the Borrowers desire to
engage in a corporate reorganization after the date hereof which will include
the (a) establishment of Americold as a real estate investment trust under the
Code and (b) transfer of certain assets, primarily equipment, to an Affiliate or
Affiliates of Borrowers to be created. The parties hereto agree to execute and
deliver appropriate amendments to this Credit Agreement and the other Loan
Documents in order to effectuate such reorganization, which will include
revisions to Section 6.11 (but will not permit the payment of any amounts
subject to Section 6.11 if prior to or after giving effect thereto there will be
a Default or an Event of Default) and Section 6.3 (solely to permit Americold to
engage in its current business through Subsidiaries), provided that such
revisions do not adversely affect the ability of the Borrowers or ASC to repay
the Secured Obligations when due or the Collateral or Liens thereon or otherwise
materially adversely affect the interests of the Agent or the Lenders.
[Signatures appear on following page(s).]
IN WITNESS WHEREOF, the parties hereto have caused this Credit
Agreement to be duly executed by their duly authorized representatives, all as
of the day and year first above written.
VORNADO CRESCENT PORTLAND
PARTNERSHIP, a Delaware general partnership
By: PORTLAND PARENT, INC., a general partner
By: /s/ Joseph Macnow
----------------------
Name: Joseph Macnow
Title: Vice President
AMERICOLD CORPORATION
By: /s/ Joseph Macnow
----------------------
Name: Joseph Macnow
Title: Vice President
AMERICOLD SERVICES CORPORATION
By: /s/ Joseph Macnow
----------------------
Name: Joseph Macnow
Title: Vice President
GOLDMAN SACHS MORTGAGE COMPANY, a New York
limited partnership, as Agent and Lender
By: Goldman Sachs Real Estate Funding Corp.,
its General Partner
By: /s/ J. Theodore Borter
---------------------------
Name: J. Theodore Borter
Title: Attorney-in-Fact
Payments to be made to Lender should be made
as follows:
Citibank, NA
ABA No. 021000089
Account No. 40711421
Goldman Sachs Mortgage Company
Reference: Vornado Crescent Portland
Partnership
SCHEDULES
Schedule 3.4 - Mortgage Closing Conditions
Schedule 4.1 Existing Indebtedness
Schedule 6.8 Sale and Leasebacks
EXHIBITS
Exhibit A-1 - Form of Joint Venture Promissory Note
Exhibit A-2 - Form of Americold Promissory Note
Exhibit B - Form of Notice of Borrowing
Exhibit C - Form of Joint Venture Pledge and Security Agreement
Exhibit D - Intentionally Omitted
Exhibit E-1 - Form of Americold Security Agreement
Exhibit E-2 - Form of ASC Security Agreement
Exhibit F - Form of Mortgage
Exhibit G - Terms of Subordination
Exhibit H - Form of Parent Guarantee