EXHIBIT E-1
FORM OF
AMERICOLD SECURITY AGREEMENT
SECURITY AGREEMENT dated as of October 31, 1997 (this
"Agreement"), between Americold Corporation, an Oregon corporation (the
"Assignor"), and Goldman Sachs Mortgage Company, a New York limited partnership,
in its capacity as Agent under that certain Credit Agreement described below
(the "Agent").
W I T N E S S E T H:
WHEREAS, pursuant to a certain Credit Agreement dated as of
October 30, 1997 (as at any time amended, modified or supplemented, the "Credit
Agreement"), among Assignor, Vornado Crescent Portland Partnership, a Delaware
general partnership, (the "Joint Venture"), Americold Services Corporation, a
Delaware corporation, Goldman Sachs Mortgage Company, a New York limited
partnership, as Agent and as Lender, and the other Lenders from time to time a
party thereto, the Lenders have agreed, subject to all of the terms and
conditions therein set forth, to make a loan to Joint Venture and loans to
Americold in the aggregate principal amount of up to $379.6 million
(collectively, the "Loan") (any capitalized term used but not defined herein
shall have the meaning given such term in the Credit Agreement);
WHEREAS, in connection with the making of the Loan under the
Credit Agreement and as security for the payment of the Secured Obligations (as
defined in the Credit Agreement and herein called the "Obligations"), Agent on
behalf of the Lenders is requiring that Assignor execute and deliver this
Agreement and grant the security interests contemplated hereby, and Assignor
desires to assign all of its rights, title and interest in and to the Collateral
(as hereinafter defined) to Agent on behalf of the Bank as additional collateral
for the payment in full of the Obligations.
NOW, THEREFORE, in consideration of the premises and the
covenants hereinafter contained, and to induce the Lenders and Agent to execute
and deliver the Credit Agreement and the other Loan Documents and to induce the
Lenders to make the Loan, it is agreed as follows:
ARTICLE I.
DEFINITIONS
SECTION 1.1. Definition of Terms Used Herein. All capitalized
terms used but not defined herein shall have the meanings set forth in the other
Loan Documents.
SECTION 1.2. Definition of Certain Terms Used Herein. As used
herein, the following terms shall have the following meanings:
"Account Debtor" shall mean any person who is or who may
become obligated to the Assignor under, with respect to or on account of an
Account.
"Accounts" shall mean, with respect to the Assignor, any and
all right, title and interest of the Assignor to payment for goods and services
sold or leased (exclusive of any liabilities of the Assignor with respect
thereto), including any such right evidenced by chattel paper, whether due or to
become due, whether or not it has been earned by performance, and whether now or
hereafter acquired or arising in the future, including, without limitation,
accounts receivable from Affiliates of the Assignor.
"Accounts Receivable" shall mean, with respect to the
Assignor, all right, title and interest of the Assignor to all "accounts", as
such term is defined in the Uniform Commercial Code, and to Accounts and all of
the Assignor's right, title and interest in any returned goods, together with
all rights, titles, securities and guaranties with respect thereto, including
any rights to stoppage in transit, replevin, reclamation and resales, and all
related security interests, liens and pledges, whether voluntary or involuntary,
whether due or to become due, whether now or hereafter arising in the future.
"Agent" shall mean the agent, if any, for the Lenders under
the Credit Agreement.
"Collateral" shall mean all (a) Accounts Receivable, (b)
Documents, (c) Equipment (including, without limitation, Fixtures), (d) General
Intangibles, (e) Inventory, (f) Instruments, (g) Proceeds, (h) Investment
Property as defined in the Uniform Commercial Code, including the capital stock
(and all rights relating thereto, including rights to dividends, to vote and to
all distributions of any Person, including the Persons set forth on Schedule III
hereto) and (i) Collection Deposit Accounts and all other cash and cash
accounts; provided, that, as to any particular item described in clauses (a)
through (i) above, (i) whether or not there shall exist a Lien on such item
under any other agreement, if the creation of a Lien hereunder on such item
would violate the terms of any agreement listed below (a "Listed Agreement"),
the Lien hereunder shall not attach to such item (which shall not constitute
"Collateral" subject hereto until attachment) until the earlier of (x) the
repayment of the indebtedness incurred under such Listed Agreement secured by
such item and, if applicable, the termination of any further commitment to lend
and (y) the time such violation would no longer exist, and (ii) if the item is
subject to a perfected Lien thereon on the date hereof created under any Listed
Agreement, the Lien created by this Agreement shall not attach to such item
until the earlier of (x) the release of such item from the Lien of such other
agreement and (y) the indebtedness under such other agreement secured by such
item shall have been repaid. The Listed Agreements are: (a) the Amended and
Restated Indenture dated as of March 9, 1993, as amended, between Assignor, as
issuer, and Fleet National Bank, formerly known as Shawmut Bank Connecticut, as
Trustee, (b) the $34 Million Credit Documents, which are listed on Schedule IV
hereto and (c) the Credit Agreement, dated as of June 19, 1995, between Assignor
and the United States National Bank of Oregon for $27,500,000.
"Collection Deposit Account" shall mean a lockbox account of
the Assignor maintained for the benefit of the Secured Parties with the Agent
pursuant to Article V or with a Sub-Agent pursuant to a Lockbox Agreement.
"Collection Deposit Account Activation Date" shall have the
meaning given to it in Section 5.1.
"Credit Agreement" shall have the meaning as set forth in the
first Whereas clause hereunder.
"Default" shall mean any "Default" as defined in the Credit
Agreement.
"Documents" shall mean all instruments, files, records, ledger
sheets and documents covering or relating to any of the Collateral.
"Equipment" shall mean all "equipment", as such term is
defined in the Uniform Commercial Code, and all equipment, machinery, apparatus,
furniture and furnishings, conveyors, rolls, attachments, storage and handling
equipment, automotive equipment, motor vehicles, trucks, trailers, boats,
vessels, aircraft and rolling stock and parts thereof and all other tangible
personal property similar to any of the foregoing, including tools, parts and
supplies of every kind and description, and all improvements, accessions or
appurtenances thereto, that are now or hereafter owned by the Assignor. The term
"Equipment" shall include Fixtures.
"Event of Default" shall mean any "Event of Default" as
defined in the Credit Agreement.
"Fixtures" shall mean all items of Equipment, whether now
owned or hereafter acquired, of the Assignor that become so related to
particular real estate that an interest in them arises under any real estate law
applicable thereto.
"General Intangibles" shall mean all "general intangibles", as
such term is defined in the Uniform Commercial Code, and all chooses in action
and causes of action and all other assignable intangible personal property of
the Assignor of every kind and nature (other than Accounts Receivable) now owned
or hereafter acquired by the Assignor, including corporate or other business
records, indemnification claims, customer lists, contract rights (including
rights under leases, whether entered into as lessor or lessee, but excluding
rights under any agreement in existence on the date hereof as to which the
granting of the security interest granted hereby would constitute a breach),
Intellectual Property, goodwill, registrations, franchises, tax refund claims
and any letter of credit, guarantee, claim, security interest or other security
held by or granted to the Assignor to secure payment by an Account Debtor of any
of the Accounts Receivable.
"Indemnitee" shall mean any "Indemnitee" as defined in the
Credit Agreement.
"Instruments" shall mean all "instruments," "chattel paper,"
and "letters of credit" (each as defined in the Uniform Commercial Code),
including, but not limited to, promissory notes, drafts, bills of exchange and
trade acceptances, now owned or hereafter acquired by the Assignor.
"Inventory" shall mean all "inventory", as such term is
defined in the Uniform Commercial Code, and all goods of the Assignor, whether
now owned or hereafter acquired, held for sale or lease, or furnished or to be
furnished by the Assignor under contracts of service, or consumed in the
Assignor's business, including raw materials, intermediates, work in process,
packaging materials, finished goods, semi-finished inventory, scrap inventory,
manufacturing supplies and spare parts, and all such goods that have been
returned to or repossessed by or on behalf of the Assignor.
"Intellectual Property" shall mean all intellectual and
similar property of the Assignor of every kind and nature now owned or hereafter
acquired by the Assignor, including inventions, designs, patents, patent
applications, copyrights, copyright registrations, applications to register
copyrights, Licenses, trademarks and service marks and the goodwill associated
therewith, trademark or service mark applications, trade names, trade secrets,
confidential or proprietary technical and business information, know-how,
show-how or other data or information, software and databases and all
embodiments or fixations thereof and related documentation, registrations and
franchises, and all additions, improvements and accessions to, and books and
records describing or used in connection with, any of the foregoing.
"Lenders" shall mean the lenders party from time to time to
the Credit Agreement.
"License" shall mean any patent license, copyright license,
trademark license or other license or sublicense to which the Assignor is or
becomes a party, including those listed on Schedule I (other than those license
agreements in existence as of the date hereof and listed on Schedule I, and
those license agreements entered into after the date hereof, that by their terms
prohibit assignment or a grant of a security interest by the Assignor as
licensee thereunder).
"Loan Documents" shall mean the Loan Documents (as such term
is defined in the Credit Agreement).
"Lockbox Agreement" shall mean the lockbox agreement and/or
amended and restated lockbox agreement among the Assignor, the Agent and a
Sub-Agent (as defined in the Lockbox Agreement), in a form as the Agent may
specify.
"Notes" shall have the meaning assigned to such term in the
Credit Agreement.
"Obligations" shall have the meaning assigned to such term in
the preliminary statement of this Agreement.
"Proceeds" shall mean any consideration received from the
sale, exchange, license, lease or other disposition of any asset or property
that constitutes Collateral, any value received as a consequence of the
possession of any Collateral and any payment received from any insurer or other
person or entity as a result of the destruction, loss, theft, damage or other
involuntary conversion of whatever nature of any asset or property that
constitutes Collateral, and shall include (a) all cash and negotiable
instruments received or held on behalf of the Agent pursuant to the Lockbox
Agreement or any other lockbox or similar arrangement relating to the payment of
Accounts Receivable and Inventory and (b) any claim of the Assignor against any
third party for (and the right to sue and recover for and the rights to damages
or profits due or accrued arising out of or in connection with) (i) past,
current or future infringement of any patent now or hereafter owned by the
Assignor or licensed under a patent license, (ii) past, current or future breach
of any License, (iii) past, current or future infringement of any copyright now
or hereafter owned by the Assignor or licensed under a copyright license and
(iv) any and all other amounts from time to time paid or payable under or in
connection with any of the Collateral.
"Secured Parties" shall mean the Agent and the Lenders and the
successors and assigns of each of the foregoing.
"Security Interest" shall have the meaning assigned to such
term in Section 2.1.
"Sub-Agent" shall mean a financial institution that shall have
delivered to the Agent an executed Lockbox Agreement.
"Uniform Commercial Code" shall mean the Uniform Commercial
Code of the State of New York, or other applicable jurisdiction, as in effect
from time to time.
SECTION 1.3. Rules of Interpretation. The rules of
interpretation specified in Section 1.2 of the Credit Agreement shall be
applicable to this Agreement.
ARTICLE II.
SECURITY INTEREST
SECTION 2.1. Security Interest. As security for the payment or
performance, as the case may be, of the Obligations, the Assignor hereby
bargains, sells, conveys, assigns, sets over, mortgages, pledges, hypothecates
and transfers to the Agent, its successors and its assigns, for the ratable
benefit of the Secured Parties, and hereby grants to the Agent, its successors
and assigns, for the benefit of the Secured Parties, a security interest in, all
of the Assignor's right, title and interest in, to and under the Collateral (the
"Security Interest"). Without limiting the foregoing, the Agent is hereby
authorized to file one or more financing statements (including fixture filings),
continuation statements, filings with the United States Patent and Trademark
Office or United States Copyright Office (or any successor office or any similar
office in any other country) or other documents for the purpose of perfecting,
confirming, continuing, enforcing or protecting the Security Interest granted by
the Assignor, without the signature of the Assignor, naming the Assignor as
debtor and the Agent as secured party.
To the extent permitted by law, the lien of the Security
Interest hereunder shall attach to the Collateral immediately.
The Assignor agrees at all times to keep accurate and complete
accounting records with respect to the Collateral, including a record of all
payments and Proceeds received in respect thereof.
SECTION 2.2. No Assumption of Liability. The Security Interest
is granted as security only and shall not subject the Agent or any other Secured
Party to, or in any way alter or modify, any obligation or liability of the
Assignor with respect to or arising out of any of the Collateral.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
The Assignor represents and warrants to and with the Agent and
each other Secured Party that:
SECTION 3.1. Title and Authority. The Assignor has good and
valid rights in and title to the Collateral with respect to which it has
purported to grant a Security Interest hereunder and has full power and
authority to grant to the Agent the Security Interest in such Collateral
pursuant hereto and to execute, deliver and perform its obligations in
accordance with the terms of this Agreement, without the consent or approval of
any other person other than any consent or approval that has been obtained.
SECTION 3.2. Filings. The Perfection Certificate has been duly
prepared, completed and executed and the information set forth therein is
correct and complete. Fully executed Uniform Commercial Code financing
statements (other than fixture filings, as applicable) or other appropriate
filings, recordings or registrations containing a description of the Collateral
have been delivered to the Agent for filing in each governmental, municipal or
other office specified in Schedule 6 to the Perfection Certificate, which are
all the filings, recordings and registrations that are necessary to publish
notice of and protect the validity of and to establish a legal, valid and
perfected security interest in favor of the Agent (for the benefit of the
Secured Parties) in respect of all Collateral in which the Security Interest may
be perfected by filing, recording or registration under the UCC in the United
States (or any political subdivision thereof) and its territories and
possessions, except for farm equipment, timber, minerals, fixtures, or
collateral whose ownership interest is evidenced by a certificate or other
instrument, or vehicle titles, and no further or subsequent filing, refiling,
recording, rerecording, registration or reregistration is necessary in any such
jurisdiction, except as provided under applicable law with respect to the filing
of continuation statements.
SECTION 3.3. Validity of Security Interest. The Security
Interest constitutes (a) a legal and valid security interest in all the
Collateral securing the payment and performance of the Obligations and (b)
subject to the filings described in Section 3.2 above, a perfected security
interest in all Collateral in which a security interest may be perfected by
filing, recording or registering a financing statement or analogous document in
the United States (or any political subdivision thereof) and its territories and
possessions pursuant to the Uniform Commercial Code, except for farm equipment,
timber, minerals, fixtures, or collateral whose ownership interest is evidenced
by a certificate or other instrument, or vehicle titles. The Security Interest
is and shall be prior to any other Lien on any of the Collateral, other than
Liens expressly permitted to be prior to the Security Interest pursuant to
Section 6.2 of the Credit Agreement.
SECTION 3.4. Absence of Other Liens. The Collateral is owned
by the Assignor free and clear of any Lien, except for Liens expressly permitted
pursuant to Section 6.2 of the Credit Agreement. Other than as contemplated
hereby, the Assignor has not filed or consented to the filing of (a) any
financing statement or analogous document under the Uniform Commercial Code or
any other applicable laws covering any Collateral, (b) any assignment in which
the Assignor assigns any Collateral or any security agreement or similar
instrument covering any Collateral with the United States Patent and Trademark
Office or the United States Copyright Office nor (c) any assignment in which the
Assignor assigns any Collateral or any security agreement or similar instrument
covering any Collateral with any foreign governmental, municipal or other
office.
ARTICLE IV.
COVENANTS
SECTION 4.1. Change of Name; Location of Collateral; Records;
Place of Business. (a) The Assignor agrees promptly to notify the Agent of any
change (i) in its corporate name or in any trade name used to identify it in the
conduct of its business or in the ownership of its properties, (ii) in the
location of its chief executive office, its principal place of business, any
office in which it maintains books or records relating to Collateral owned by it
or any office or facility at which Collateral owned by it is located (including
the establishment of any such new office or facility) or (iii) in its identity
or corporate structure. The Assignor agrees not to effect or permit any change
referred to in the preceding sentence unless all filings have been made under
the Uniform Commercial Code or otherwise that are required in order for the
Agent to continue at all times following such change to have a valid, legal and
perfected security interest in all the Collateral. The Assignor agrees promptly
to notify the Agent if any material portion of the Collateral is damaged or
destroyed.
(b) The Assignor agrees to maintain, at its own cost and
expense, complete and accurate records with respect to the Collateral owned by
it and, at such time or times as the Agent may request, promptly to prepare and
deliver to the Agent a duly certified schedule or schedules in form and detail
satisfactory to the Agent showing the identity, amount and location of any and
all Collateral.
SECTION 4.2. Periodic Certification. Each quarter, commencing
with the quarter ending on June 30, 1998, at the time of delivery of quarterly
financial statements by the Assignor with respect to the preceding fiscal
quarter pursuant to Section 5.1(b) of the Credit Agreement, the Assignor shall
deliver to the Agent a certificate executed by a Financial Officer of the
Assignor (a) setting forth the information required pursuant to Section 2 of the
Perfection Certificate, (b) certifying that all Uniform Commercial Code
financing statements (including fixture filings, as applicable), filings with
the United States Patent and Trademark Office and appropriate state offices with
respect to state registered trademarks or the United States Copyright Office, or
other appropriate filings, recordings or registrations, including all refilings,
rerecordings and reregistrations, containing a description of the Collateral
have been filed of record in each governmental, municipal or other appropriate
office in each jurisdiction identified pursuant to clause (a) above to the
extent necessary to protect and perfect the Security Interest for a period of
not less than 18 months after the date of such certificate, (c) setting forth,
with respect to each filing, recording or registration (including each refiling,
rerecording or reregistration) made since the date of the Perfection Certificate
or the most recent certificate delivered pursuant to this Section 4.2, the
filing office, date and file number thereof, (d) attaching true, correct and
complete acknowledgment copies of each such filing, recording or registration
not theretofore delivered to the Agent and (e) stating that he has consulted
with its legal counsel as to the matters set forth in such certificate.
SECTION 4.3. Protection of Security. The Assignor shall, at
its own cost and expense, take any and all actions necessary to defend title to
the Collateral against all persons and to defend the Security Interest of the
Agent in the Collateral and the priority thereof against any Lien not expressly
permitted under the Credit Agreement.
SECTION 4.4. Instruments. The Assignor shall deliver and
pledge to the Agent all Instruments ((i) but only with respect to any Instrument
representing in excess of $250,000 of indebtedness and (ii) at any time during
the continuance of an Event of Default) and other property, the perfection of a
security interest in which requires possession pursuant to the Uniform
Commercial Code, duly endorsed and accompanied by duly executed instruments of
transfer or assignment, all in form and substance satisfactory to the Agent,
promptly upon the Assignor's receipt thereof. The Assignor shall mark
conspicuously all chattel paper with a legend in form and substance satisfactory
to the Agent, indicating that such chattel paper is subject to the Liens of the
Security Interest.
SECTION 4.5. Further Assurances. The Assignor agrees, at its
expense, to execute, acknowledge, deliver and cause to be duly filed all such
further instruments and documents (including filings with the United States
Patent and Trademark Office or the United States Copyright Office) and take all
such actions as the Agent or any of the other Secured Parties may from time to
time request to better assure, preserve, protect and perfect the Security
Interest and the rights and remedies created hereby, including the payment of
any fees and taxes required in connection with the execution and delivery of
this Agreement, the granting of the Security Interest and the filing of any
financing statements (including fixture filings) or other documents in
connection herewith.
SECTION 4.6. Inspection and Verification. The Agent and such
persons as the Agent may reasonably designate shall have the right, at any
reasonable time or times and at the Assignor's own cost and expense, to inspect
the Collateral, all records related thereto (and to make extracts and copies
from such records) and the premises upon which any of the Collateral is located,
to discuss the Assignor's affairs with the officers of the Assignor and its
independent accountants and to verify under reasonable procedures the validity,
amount, quality, quantity, value, condition and status of or any other matter
relating to, the Collateral, including, in the case of Accounts or Collateral in
the possession of any third party, by contacting Account Debtors or the third
party possessing such Collateral for the purpose of making such a verification.
The Agent shall have the absolute right to share any information it gains from
such inspection or verification with any other Secured Party.
SECTION 4.7. Taxes; Insurance; Encumbrances. At its option,
the Agent may discharge past due taxes, assessments, charges, fees, liens,
security interests or other encumbrances at any time levied or placed on the
Collateral and not permitted under the Loan Documents, and may pay for insurance
on or the maintenance and preservation of the Collateral to the extent the
Assignor fails to do so as required by this Agreement or the other Loan
Documents, and the Assignor agrees to reimburse the Agent on demand for any
payment made or any expense incurred by the Agent pursuant to the foregoing
authorization; provided, however, that nothing in this Section 4.7 shall be
interpreted as excusing the Assignor from the performance of, or imposing any
obligation on, the Agent or any other Secured Party to cure or perform, any
covenants or other promises of the Assignor with respect to insurance, taxes,
assessments, charges, fees, liens, security interests or other encumbrances and
maintenance as set forth herein or in the other Loan Documents.
SECTION 4.8. Assignment of Security Interest. If at any time
the Assignor shall take and perfect a security interest in any property of an
Account Debtor or any other person to secure payment and performance of an
Account, the Assignor shall promptly notify the Agent and, following request of
the Agent, assign such security interest to the Agent. Such assignment need not
be filed of public record unless necessary to continue the perfected status of
the security interest against creditors of and transferees from the Account
Debtor or other person granting the security interest.
SECTION 4.9. Continuing Obligations of the Assignor. The
Assignor shall remain liable to, at its own cost and expense, duly and
punctually, observe and perform all the conditions and obligations to be
observed and performed by it under each contract, agreement or instrument
relating to the Collateral, all in accordance with the terms and conditions
thereof, and the Assignor agrees to indemnify and hold harmless the Agent and
the other Secured Parties from and against any and all liability for such
performance.
SECTION 4.10. Use and Disposition of Collateral. The Assignor
may use but not dispose of the Collateral in any lawful manner not inconsistent
with the provisions of this Agreement, the respective Credit Agreement or any
Loan Document, except that the Assignor may dispose of Collateral to the extent
disposal would not be prohibited by provisions of the Loan Documents.
SECTION 4.11. Limitation on Modification of Accounts. The
Assignor will not, without the Agent's prior written consent, grant any
extension of the time of payment of any of the Accounts Receivable, compromise,
compound or settle the same for less than the full amount thereof, release,
wholly or partly, any person liable for the payment thereof or allow any credit
or discount whatsoever thereon, other than extensions, credits, discounts,
compromises or settlements granted or made in the ordinary course of business.
After a Default or an Event of Default shall have occurred and during the
continuance thereof, the Agent may notify the Assignor not to grant or make any
such extension, credit, discount, compromise, or settlement under any
circumstances without its prior written consent, in which case the Assignor
shall cease to grant or make any of the same.
ARTICLE V.
COLLECTIONS
SECTION 5.1. Collection Deposit Accounts. (a) If requested by
the Agent at any time, the Assignor shall establish and shall maintain one or
more Collection Deposit Accounts with the Agent or with any financial
institution that (i) is satisfactory to the Agent and (ii) enters into the
Lockbox Agreement. The provisions of this Article V shall apply only from and
after the date (the "Collection Deposit Account Activation Date") which is the
earlier of (x) the date of such request or the date of any Default or Event of
Default.
(b) Unless and until the Collection Deposit Accounts are
converted to closed lockbox accounts pursuant to paragraph (c) below, the
Assignor may at any time withdraw any of the funds contained in a Collection
Deposit Account of the Assignor for use, subject to the provisions of the Loan
Documents, for general corporate purposes.
(c) Effective upon notice to the Assignor from the Agent after
the occurrence and during the continuance of an Event of Default (which notice
may be given by telephone if promptly confirmed in writing), each Collection
Deposit Account will, without any further action on the part of the Assignor,
the Agent or any Sub-Agent, convert into a closed lockbox account under the
exclusive dominion and control of the Agent in which funds are held subject to
the rights of the Agent hereunder. The Assignor shall thereafter have no right
or power to withdraw any funds from any Collection Deposit Account without the
prior written consent of the Agent until all Events of Default are cured or
waived. The Assignor irrevocably authorizes the Agent to notify each Sub-Agent
(i) of the occurrence of an Event of Default and (ii) of the matters referred to
in this paragraph (c). Following the occurrence of an Event of Default, the
Agent may instruct each Sub-Agent to transfer immediately all funds held in each
Collection Deposit Account to an account maintained with the Agent.
SECTION 5.2. Collections. (a) From and after the Collection
Deposit Account Activation Date, the Assignor agrees, upon request of the Agent,
to notify and direct promptly each Account Debtor and every other person
obligated to make payments with respect to the Accounts Receivable and Inventory
to make all such payments to a Collection Deposit Account established by it. The
Assignor shall use all reasonable efforts to cause each Account Debtor and every
other person identified in the preceding sentence to make all payments with
respect to the Accounts Receivable and Inventory directly to such Collection
Deposit Account.
(b) In the event that any Assignor directly receives any
remittances on Accounts Receivable or Inventory, notwithstanding the
arrangements for payment directly into the Collection Deposit Accounts, such
remittances shall be held in trust for the benefit of the Agent and the other
Secured Parties and shall be segregated from other funds of the Assignor,
subject to the Security Interest granted hereby, and the Assignor shall cause
such remittances and payments to be deposited into the applicable Collection
Deposit Account as soon as practicable after the Assignor's receipt thereof.
SECTION 5.3. Power of Attorney. The Agent is hereby appointed
by the Assignor as the true and lawful agent and attorney-in-fact of the
Assignor, and in such capacity the Agent shall have the right, with power of
substitution for the Assignor and in the Assignor's name or otherwise, for the
use and benefit of the Agent and the other Secured Parties, upon the occurrence
and during the continuance of an Event of Default, (a) to receive, endorse,
assign and/or deliver any and all notes, acceptances, checks, drafts, money
orders or other evidences of payment relating to the Collateral or any part
thereof; (b) to demand, collect, receive payment of, give receipt for and give
discharges and releases of all or any of the Collateral; (c) to sign the name of
the Assignor on any invoice or bill of lading relating to any of the Collateral;
(d) to send verifications of Accounts Receivable to any Account Debtor; (e) to
commence and prosecute any and all suits, actions or proceedings at law or in
equity in any court of competent jurisdiction to collect or otherwise realize on
all or any of the Collateral or to enforce any rights in respect of any
Collateral; (f) to settle, compromise, compound, adjust or defend any actions,
suits or proceedings relating to all or any of the Collateral; (g) to notify, or
to require the Assignor to notify, Account Debtors to make payment directly to
the Agent; and (h) to use, sell, assign, transfer, pledge, make any agreement
with respect to or otherwise deal with all or any of the Collateral, and to do
all other acts and things necessary to carry out the purposes of this Agreement,
as fully and completely as though the Agent were the absolute owner of the
Collateral for all purposes; provided, however, that nothing herein contained
shall be construed as requiring or obligating the Agent or any other Secured
Party to make any commitment or to make any inquiry as to the nature or
sufficiency of any payment received by the Agent or any other Secured Party, or
to present or file any claim or notice, or to take any action with respect to
the Collateral or any part thereof or the moneys due or to become due in respect
thereof or any property covered thereby, and no action taken or omitted to be
taken by the Agent or any other Secured Party with respect to the Collateral or
any part thereof shall give rise to any defense, counterclaim or offset in favor
of the Assignor or to any claim or action against the Agent or any other Secured
Party. It is understood and agreed that the appointment of the Agent as the
agent and attorney-in-fact of the Assignor for the purposes set forth above is
coupled with an interest and is irrevocable. The provisions of this Section 5.3
shall in no event relieve the Assignor of any of its obligations hereunder or
under the other Loan Documents with respect to the Collateral or any part
thereof or impose any obligation on the Agent or any other Secured Party to
proceed in any particular manner with respect to the Collateral or any part
thereof, or in any way limit the exercise by the Agent or any other Secured
Party of any other or further right that it may have on the date of this
Agreement or hereafter, whether hereunder, under any other Financing Document,
by law or otherwise. Any sale pursuant to the provisions of this Section 5.3
shall be deemed to conform to the commercially reasonable standards as provided
in Section 9-504(3) of the Uniform Commercial Code as in effect in the State of
New York or its equivalent in other jurisdictions.
ARTICLE VI.
REMEDIES
SECTION 6.1. Remedies upon Default. Upon the occurrence and
during the continuance of an Event of Default, the Assignor agrees to deliver
each item of Collateral to the Agent on demand, and it is agreed that the Agent
shall have the right (subject to applicable law) to take any of or all the
following actions at the same or different times: (a) with respect to any
Collateral consisting of Intellectual Property, on demand, to cause the Security
Interest to become an assignment, transfer and conveyance of any of or all such
Collateral by the Assignor to the Agent, or to license or, to the extent
permitted by applicable law, sublicense, whether general, special or otherwise,
and whether on an exclusive or non-exclusive basis, any such Collateral
throughout the world on such terms and conditions and in such manner as the
Agent shall determine (other than in violation of any then-existing licensing
arrangements to the extent that waivers cannot be obtained), and (b) with or
without legal process and with or without previous notice or demand for
performance, to take possession of the Collateral (and temporary possession of
any non-Collateral in connection with any such repossession, with the right to
store, at the Assignor's expense and risk, such non-Collateral) and without
liability for trespass to enter any premises where the Collateral may be located
for the purpose of taking possession of or removing the Collateral and,
generally, to exercise any and all rights afforded to a secured party under the
Uniform Commercial Code or other applicable law. Without limiting the generality
of the foregoing, the Assignor agrees that the Agent shall have the right,
subject to the mandatory requirements of applicable law, to sell or otherwise
dispose of all or any part of the Collateral, at public or private sale or at
any broker's board or on any securities exchange, for cash, upon credit or for
future delivery as the Agent shall deem appropriate. The Agent shall be
authorized at any such sale (if it deems it advisable to do so) to restrict the
prospective bidders or purchasers to persons who will represent and agree that
they are purchasing the Collateral for their own account for investment and not
with a view to the distribution or sale thereof, and upon consummation of any
such sale the Agent shall have the right to assign, transfer and deliver to the
purchaser or purchasers thereof the Collateral so sold. Each such purchaser at
any such sale shall hold the property sold absolutely free from any claim or
right on the part of the Assignor, and the Assignor hereby waives (to the
fullest extent permitted by applicable law) all rights of redemption, stay and
appraisal that the Assignor now has or may at any time in the future have under
any rule of law or statute now existing or hereafter enacted.
The Agent shall give the Assignor 10 days' written notice
(which the Assignor agrees is reasonable notice within the meaning of Section
9-504(3) of the Uniform Commercial Code as in effect in the State of New York or
its equivalent in other jurisdictions) of the Agent's intention to make any sale
of Collateral. Such notice, in the case of a public sale, shall state the time
and place for such sale and, in the case of a sale at a broker's board or on a
securities exchange, shall state the board or exchange at which such sale is to
be made and the day on which the Collateral, or portion thereof, will first be
offered for sale at such board or exchange. Any such public sale shall be held
at such time or times within ordinary business hours and at such place or places
as the Agent may fix and state in the notice (if any) of such sale. At any such
sale, the Collateral, or portion thereof, to be sold may be sold in one lot as
an entirety or in separate parcels, as the Agent may (in its sole and absolute
discretion) determine. The Agent shall not be obligated to make any sale of any
Collateral if it shall determine not to do so, regardless of the fact that
notice of sale of such Collateral shall have been given. The Agent may, without
notice or publication, adjourn any public or private sale or cause the same to
be adjourned from time to time by announcement at the time and place fixed for
sale, and such sale may, without further notice, be made at the time and place
to which the same was so adjourned. In case any sale of all or any part of the
Collateral is made on credit or for future delivery, the Collateral so sold may
be retained by the Agent until the sale price is paid by the purchaser or
purchasers thereof, but the Agent shall not incur any liability in case any such
purchaser or purchasers shall fail to take up and pay for the Collateral so sold
and, in case of any such failure, such Collateral may be sold again upon like
notice. At any public sale made pursuant to this Section 6.1, any Secured Party
may bid for or purchase, free (to the fullest extent permitted by applicable
law) from any right of redemption, stay, valuation or appraisal on the part of
the Assignor (all said rights being also hereby waived and released to the
extent permitted by law), the Collateral or any part thereof offered for sale
and may make payment on account thereof by using any claim then due and payable
to such Secured Party from the Assignor as a credit against the purchase price,
and such Secured Party may, upon compliance with the terms of sale, hold, retain
and dispose of such property without further accountability to the Assignor
therefor. For purposes hereof, a written agreement to purchase the Collateral or
any portion thereof shall be treated as a sale thereof; the Agent shall be free
to carry out such sale pursuant to such agreement and the Assignor shall not be
entitled to the return of the Collateral or any portion thereof subject thereto,
notwithstanding the fact that after the Agent shall have entered into such an
agreement all Events of Default shall have been remedied and the Obligations
paid in full; provided, however, that in the event the Obligations shall have
been paid in full, the Assignor shall be entitled to the return of the proceeds
of the sale of any such Collateral to the extent not applied to payment of the
Obligations. As an alternative to exercising the power of sale herein conferred
upon it, the Agent may proceed by a suit or suits at law or in equity to
foreclose this Agreement and to sell the Collateral or any portion thereof
pursuant to a judgment or decree of a court or courts having competent
jurisdiction or pursuant to a proceeding by a court-appointed receiver. Any sale
pursuant to the provisions of this Section 6.1 shall be deemed to conform to the
commercially reasonable standards as provided in Section 9-504(3) of the Uniform
Commercial Code as in effect in the State of New York or its equivalent in other
jurisdictions. The Assignor will remain liable for any deficiency in the payment
of the Obligations.
SECTION 6.2. Application of Proceeds. The Agent shall apply
the proceeds of any collection or sale of the Collateral, as well as any
Collateral consisting of cash, as follows:
FIRST, to the payment of all costs and expenses incurred by
the Agent (in its capacity as such hereunder or under any other Loan
Document) in connection with such collection or sale or otherwise in
connection with this Agreement or any of the Obligations, including all
court costs and the fees, other charges and expenses of its agents and
legal counsel, the repayment of all advances made by the Agent hereunder
or under any other Loan Document on behalf of the Assignors and any
other costs or expenses incurred in connection with the exercise of any
right or remedy hereunder or under any other Loan Document;
SECOND, to the payment of the Secured Obligations in such
order as the Agent may determine in its sole discretion; and
THIRD, to the Assignor, its successors or assigns, or as a
court of competent jurisdiction may otherwise direct.
The Agent shall have absolute discretion as to the time of
application of any such proceeds, moneys or balances in accordance with this
Agreement. Upon any sale of the Collateral by the Agent (including pursuant to a
power of sale granted by statute or under a judicial proceeding), the receipt by
the Agent or of the officer making the sale shall be a sufficient discharge to
the purchaser or purchasers of the Collateral so sold and such purchaser or
purchasers shall not be obligated to see to the application of any part of the
purchase money paid over to the Agent or such officer or be answerable in any
way for the misapplication thereof.
SECTION 6.3. Grant of License to Use Intellectual Property.
For the purpose of enabling the Agent to exercise rights and remedies under this
Section 6.3 at such time as the Agent shall be lawfully entitled to exercise
such rights and remedies, the Assignor hereby grants to the Agent an
irrevocable, non-exclusive license (exercisable without payment of royalty or
other compensation to the Assignor) to use, license or sub-license any of the
Collateral consisting of Intellectual Property now owned or hereafter acquired
by the Assignor, and wherever the same may be located, and including in such
license reasonable access to all media in which any of the licensed items may be
recorded or stored and to all computer software and programs used for the
compilation or printout thereof. The use of such license by the Agent shall be
exercised, at the option of the Agent, upon the occurrence and during the
continuation of an Event of Default, provided that any license, sub-license or
other transaction entered into by the Agent in accordance herewith shall be
binding upon the Assignor notwithstanding any subsequent cure of an Event of
Default.
ARTICLE VII.
MISCELLANEOUS
SECTION 7.1. Notices. All communications and notices hereunder
shall (except as otherwise expressly permitted herein) be in writing and given
as provided in Section 10.5 of the Credit Agreement. All communications and
notices hereunder to the Agent shall be given to it at its address set forth in
Schedule II hereto.
SECTION 7.2. Absolute and Unconditional Obligations.. All
rights of the Agent hereunder, the Security Interest and all obligations of the
Assignor hereunder shall be absolute and unconditional irrespective of (a) any
lack of validity or enforceability of any Loan Document, any agreement with
respect to any of the Obligations or any other agreement or instrument relating
to any of the foregoing, (b) any change in the time, manner or place of payment
of, or in any other term of, all or any of the Obligations or any other
amendment or waiver of or any consent to any departure from any Credit
Transaction Document or any other agreement or instrument, (c) any exchange,
release or non-perfection of any Lien on other Collateral, or any release or
amendment or waiver of or consent under or departure from any guarantee,
securing or guaranteeing all or any of the Obligations or (d) any other
circumstance that might otherwise constitute a defense available to, or a
discharge of, the Assignor in respect of the Obligations or in respect of this
Agreement (other than the indefeasible payment in full of all the Obligations).
The Agent may resort to the Assignor hereunder for the payment of the
Obligations whether or not the Agent shall have resorted to any other property
of any person securing the Obligations or shall have proceeded against any other
obligor primarily or secondarily obligated with respect to any of the
Obligations.
SECTION 7.3. Survival of Agreement. All covenants, agreements,
representations and warranties made by the Assignor herein and in the
certificates or other instruments prepared or delivered in connection with or
pursuant to this Agreement or any other Loan Document shall be considered to
have been relied upon by the Secured Parties and shall survive the execution and
delivery of the Notes, regardless of any investigation made by the Secured
Parties or on their behalf, and shall continue in full force and effect as long
as the principal of or any accrued interest on, or any other fee or amount
payable under or in respect of, any Note or this Agreement or, without
duplication of the foregoing, under any of the other Loan Documents is
outstanding and unpaid.
SECTION 7.4. Binding Effect; Assignments. This Agreement shall
become effective as to the Assignor when a counterpart hereof executed on behalf
of the Assignor shall have been delivered to the Agent and a counterpart hereof
shall have been executed on behalf of the Agent, and thereafter shall be binding
upon the Assignor and the Agent and their respective successors and assigns, and
shall inure to the benefit of the Assignor, the Agent and the other Secured
Parties and their respective successors and assigns, except that the Assignor
shall not have the right to assign its rights hereunder or any interest herein
or in the Collateral (and any such attempted assignment shall be void) except as
expressly contemplated by this Agreement or the other Loan Documents.
SECTION 7.5. Successors and Assigns. Whenever in this
Agreement any of the parties hereto is referred to, such reference shall be
deemed to include the successors and assigns of such party; and all covenants,
promises and agreements by or on behalf of the Assignor or the Agent that are
contained in this Agreement shall bind and inure to the benefit of their
respective successors and assigns.
SECTION 7.6. Agent's Fees and Expenses; Indemnification. (a)
The Assignor agrees to pay upon demand to the Agent the amount of any and all
reasonable expenses, including the reasonable fees and expenses of its counsel
and of any experts or agents, that the Agent may incur in connection with (i)
the administration of this Agreement (including the customary fees of the Agent
for any audits conducted by it with respect to the Accounts Receivable or
Inventory), (ii) the custody or preservation of, or the sale of, collection from
or other realization upon any of the Collateral, (iii) the exercise, enforcement
or protection of any of the rights of the Agent hereunder or (iv) the failure of
the Assignor to perform or observe any of the provisions hereof. If the Assignor
shall fail to do any act or thing that it has covenanted to do hereunder or any
representation or warranty of the Assignor hereunder shall be breached, the
Agent may (but shall not be obligated to) do the same or cause it to be done or
remedy any such breach and there shall be added to and deemed part of the
Obligations the cost or expense incurred by the Agent in so doing.
(b) Without limitation of its indemnification obligations
under the other Loan Documents, the Assignor agrees to indemnify the Agent, the
Secured Parties and the other Indemnitees against, and hold each of them
harmless from, any and all losses, claims, damages, liabilities and related
expenses, including reasonable counsel fees and expenses, incurred by or
asserted against any of them arising out of, in any way connected with, or as a
result of, the execution, delivery or performance of this Agreement or any
claim, litigation, investigation or proceeding relating hereto or to the
Collateral, whether or not any Indemnitee is a party thereto, provided that such
indemnity shall not, as to any Indemnitee, be available to the extent that such
losses, claims, damages, liabilities or related expenses are determined by a
court of competent jurisdiction by final and nonappealable judgment to have
resulted from the gross negligence or willful misconduct of such Indemnitee.
(c) Any amounts payable as provided hereunder shall be
additional Obligations secured hereby and by the other Security Documents. The
provisions of this Section 7.6 shall remain operative and in full force and
effect regardless of the termination of this Agreement, the consummation of the
transactions contemplated hereby, the repayment of any of the Obligations, the
invalidity or unenforceability of any term or provision of this Agreement or any
other Loan Document or any investigation made by or on behalf of the Agent or
any other Secured Party. All amounts due under this Section 7.6 shall be payable
on written demand therefor and shall bear interest at the rate provided for in
the Notes in respect of the payment of overdue principal and interest on the
Notes.
SECTION 7.7. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 7.8. Waivers; Amendment. (a) No failure or delay of
the Agent or any other Secured Party in exercising any power or right hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such right or power, or any abandonment or discontinuance of steps to
enforce such a right or power, preclude any other or further exercise thereof or
the exercise of any other right or power. The rights and remedies of the Agent
hereunder and of the other Secured Parties under the other Loan Documents are
cumulative and are not exclusive of any rights or remedies that they would
otherwise have. No waiver of any provisions of this Agreement or any other Loan
Document or consent to any departure by the Assignor therefrom shall in any
event be effective unless the same shall be permitted by paragraph (b) below,
and then such waiver or consent shall be effective only in the specific instance
and for the purpose for which given. No notice or demand on the Assignor in any
case shall entitle the Assignor to any other or further notice or demand in
similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be
waived, amended or modified except pursuant to a written agreement entered into
by the Assignor and the Agent, with the prior written consent of the Agent and
the holders of the Notes; provided, however, that except as provided herein or
in the other Loan Documents, no such agreement shall amend, modify, waive or
otherwise adversely affect a Secured Party's rights and interests in any
material amount of the Collateral without the prior written consent of such
Secured Party.
SECTION 7.9. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING
OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER LOAN
DOCUMENTS. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS
APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN
THIS SECTION 7.9.
SECTION 7.10. Severability. In the event any one or more of
the provisions contained in this Agreement or in any other Loan Document should
be held invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein and therein
shall not in any way be affected or impaired thereby (it being understood that
the invalidity of a particular provision in a particular jurisdiction shall not
in and of itself affect the validity of such provision in any other
jurisdiction). The parties shall endeavor in good-faith negotiations to replace
the invalid, illegal or unenforceable provisions with valid provisions, the
economic effect of which comes as close as possible to that of the invalid,
illegal or unenforceable provisions.
SECTION 7.11. Jurisdiction; Consent to Service of Process. (a)
The Assignor hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or
Federal court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or the other Loan Documents, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. Each of the parties hereto agrees that
a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any right that the Agent
or any other Secured Party may otherwise have to bring any action or proceeding
relating to this Agreement or the other Loan Documents against the Assignor or
its properties in the courts of any jurisdiction.
(b) The Assignor hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement or the other
Loan Documents in any New York State or Federal court. Each of the parties
hereto hereby irrevocably waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such action or proceeding
in any such court.
(c) Each party to this Agreement irrevocably consents to
service of process in the manner provided for notices in Section 7.1. Nothing in
this Agreement will affect the right of any party to this Agreement to serve
process in any other manner permitted by law.
SECTION 7.12. Termination or Release. (a) This Agreement and
the Security Interest shall terminate when all the Obligations have been
indefeasibly paid in full in cash and the Lenders shall have no further
obligations under the Loan Documents.
(b) Upon (i) any sale by the Assignor of any Collateral
that is permitted under the Credit Agreement, or (ii) the effectiveness of any
written consent to the release of the Security Interest in any Collateral
pursuant to the Credit Agreement, the Security Interest in such Collateral (but
not the proceeds thereof) shall be automatically released.
(c) In connection with any termination or release pursuant to
paragraphs (a) or (b) the Agent shall execute and deliver to the Assignor, at
the Assignor's expense, all Uniform Commercial Code termination statements,
documents in order to terminate any United States Patent and Trademark Office
and United States Copyright Office filings and similar documents that the
Assignor shall reasonably request to evidence such termination or release. Any
execution and delivery of termination statements or documents pursuant to this
Section 7.12 shall be without recourse to or warranty by the Agent.
SECTION 7.13. Headings. Article and Section headings used
herein are for convenience of reference only, are not part of this Agreement and
are not to affect the construction of, or to be taken into consideration in
interpreting, this Agreement.
SECTION 7.14. Counterparts. This Agreement may be executed in
two or more counterparts, each of which shall constitute an original but all of
which when taken together shall constitute but one contract.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
AMERICOLD CORPORATION
By:
----------------------
Name:
Title:
GOLDMAN SACHS MORTGAGE COMPANY, a New
York limited partnership, as Agent
By: Goldman Sachs Real Estate Funding
Corp., its General Partner
By:
-----------------------
Name:
Title:
1.ANNEX I
PERFECTION CERTIFICATE
Reference is made to (a) the Credit Agreement dated as of
October 30, 1997 (as further amended from time to time, the "Credit Agreement"),
among Americold Corporation, an Oregon corporation (the "Assignor"), Vornado
Crescent Portland Partnership, a Delaware general partnership (the "Joint
Venture"), and Goldman Sachs Mortgage Company, a New York limited partnership,
individually and as Agent (the "Agent"), and (b) the Security Agreement, dated
as of October 31, 1997 (as amended from time to time, the "Security Agreement"),
among the Assignor and the Agent. Capitalized terms used and not defined herein
shall have the meanings assigned to such terms in the Credit Agreement and the
Security Agreement, as applicable.
Under the Security Agreement, the Assignor is a grantor of a
security interest in the Collateral as defined therein.
The undersigned, the Financial Officer of the Assignor, hereby
certifies to the Agent and each other Secured Party as follows:
1. Names.
(a) The exact corporate name of the Assignor under the
Security Agreement, as such name appears in its certificate of incorporation, is
as follows:
(b) Set forth below is each other corporate name the Assignor
has had since its organization, together with the date of the relevant change:
Original Corporate Name:
Corporate Name Change:
(c) Except as set forth in Schedule 1, the Assignor has not
changed its identity or corporate structure in any way within the past five
years.
[Changes in identity or corporate structure would include
mergers, consolidations and acquisitions, as well as any change in the form,
nature or jurisdiction of corporate organization. If any such change has
occurred, include in Schedule 1, as applicable, the information required by
Sections 1 and 2 of this certificate as to each acquired or constituent party to
a merger or consolidation.]
1.1 The following is list of all other names (including
trade names or similar appellations) used by the Assignor or any of its
divisions or other business units in connection with the conduct of its business
or the ownership of its properties as they relate to the business conducted by
the Assignor at any time during the past five years:
2. Current Locations.
(a) The chief executive office of the Assignor is located at
the following address:
Mailing Address County State
- -------------------------------------------------------------------------------
(b) The following are all locations where the Assignor
maintains any books or records relating to any Accounts Receivable:
Mailing Address County State
- --------------------------------------------------------------------------------
(c) The following are all the places of business of the
Assignor not identified above:
Mailing Address County State
- -------------------------------------------------------------------------------
(d) The following are all the locations where the Assignor
maintains, any Inventory not identified above:
Mailing Address County State
- -------------------------------------------------------------------------------
(e) The following are the names and addresses of all persons
other than the Assignor who have possession of any of the Assignor's Inventory:
Name Mailing Address County State
- -------------------------------------------------------------------------------
3. Unusual Transactions. All Accounts Receivable have been
originated by the Assignor and all Inventory has been acquired by the Assignor
in the ordinary course of its business.
4. File Search Reports. Attached hereto as Schedule 4(A) are
true copies of file search reports from the Uniform Commercial Code filing
offices where filings described in Section 5 hereof are to be made. Attached
hereto as Schedule 4(B) is a true copy of each financing statement or other
filing identified in such file search reports.
5. UCC Filings. A duly signed Uniform Commercial Code
financing statement (including fixture filings, as applicable) in substantially
the form of Schedule 5 hereto has been delivered to the Agent for filing in the
Uniform Commercial Code filing office in each jurisdiction identified in Section
2 hereof.
6. Schedule of Filings. Attached hereto as Schedule 6 is a
schedule setting forth, with respect to the filings described in Section 5
above, each filing office in which such filings are to be made.
7. Mortgage Filings. Attached hereto as Schedule 7 is a
schedule setting forth, with respect to each of the real properties to be
subject to a Mortgage under the Credit Agreement owned by the Assignor, (a) the
exact corporate name of the Corporation that owns such property as such name
appears in its certificate of incorporation, (b) if different than the name
identified pursuant to clause (a), the exact name of the current record owner of
such property reflected in the records of the filing office for such property
identified pursuant to the following clause and (c) the filing office in which a
Mortgage with respect to such property must be filed or recorded in order for
the Agent to obtain a perfected lien thereon.
IN WITNESS WHEREOF, I have hereunto set my hand the ____ day
of ________, ____.
[FINANCIAL OFFICER]
By:___________________________
Name:
Title: