<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM 10-Q
/X/ Quarterly report pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 for the quarterly period
ended May 31, 1995; or
/ / Transition report pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 for the transition period
from __________ to __________.
Commission File Number: 33-12173
AMERICOLD CORPORATION
(Exact name of registrant as specified in its charter)
OREGON 93-0295215
(State of Incorporation) (I.R.S. Employer
Identification Number)
7007 S.W. Cardinal Lane, Suite 135
Portland, Oregon 97224
(Address of principal executive offices) (Zip Code)
Registrant's telephone number: (503) 624-8585
Indicate by check mark whether the registrant (1) has filed all
reports required to be filed by Section 13 or 15(d) of the
Securities Exchange Act of 1934 during the preceding 12 months (or
for such shorter period that the registrant was required to file
such reports), and (2) has been subject to such filing requirements
for the past 90 days.
Yes /X/ No / /
Number of shares outstanding of the registrant's common stock, par
value $.01 per share, as of June 30, 1995: 4,860,934 shares.<PAGE>
AMERICOLD CORPORATION
Form 10-Q
INDEX
-----
Page
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PART I FINANCIAL INFORMATION
Item 1. Financial Statements
Consolidated Balance Sheets 3
Consolidated Statements of Operations 5
Consolidated Statements of Cash Flows 6
Notes to Consolidated Financial Statements 7
Item 2. Management's Discussion and Analysis of
Financial Condition and Results of
Operations 11
PART II OTHER INFORMATION
Item 1. Legal Proceedings 18
Item 2. Changes in Securities 18
Item 4. Submission of Matters to a Vote of
Security Holders 18
Item 6. Exhibits and Reports on Form 8-K 19
SIGNATURES 21
EXHIBIT INDEX 22
<PAGE>
PART I - Financial Information
Item 1. Financial Statements
AMERICOLD CORPORATION
CONSOLIDATED BALANCE SHEETS
Last day of February 1995 and May 1995
(In thousands, except share data)
<TABLE>
<CAPTION>
Last day of Last day of
February 1995 May 1995
------------- -----------
(Unaudited)
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents (note 6) $ 33,163 $ 36,001
Trade receivables, net (note 7) 20,510 17,794
Other receivables, net 2,105 2,845
Prepaid expenses 5,240 4,407
Other current assets 974 884
----------- ----------
Total current assets 61,992 61,931
Property, plant and equipment, less accumulated depreciation
of $156,806 and $161,484, respectively (note 7) 367,248 379,319
Cost in excess of net assets acquired, less accumulated
amortization of $19,765 and $20,398 respectively 80,028 79,395
Other noncurrent assets 35,327 18,075
----------- ----------
Total assets $ 544,595 $ 538,720
=========== ==========
LIABILITIES, PREFERRED STOCK AND COMMON STOCKHOLDERS' DEFICIT
Current liabilities:
Accounts payable $ 6,741 $ 7,489
Accrued interest 17,683 20,187
Accrued expenses 11,345 8,896
Deferred revenue 5,914 5,388
Current maturities of long-term debt (note 7) 31,315 31,397
Other current liabilities 3,912 3,791
---------- ----------
Total current liabilities 76,910 77,148
Long-term debt, less current maturities (note 7) 442,912 442,456
Deferred income taxes 106,098 104,247
Other noncurrent liabilities 10,633 10,329
---------- ----------
Total liabilities 636,553 634,180
---------- ----------
Preferred stock, $100 par value; authorized 1,000,000 shares;
issued and outstanding 52,936 shares (note 5) 5,789 5,976
---------- ----------
Common stockholders' deficit (note 3):
Common stock, $.01 par value; authorized
10,000,000 shares; issued and outstanding 4,860,934 shares 49 49
Additional paid-in capital 49,022 49,022
Retained deficit (146,775) (150,464)
Equity adjustment to recognize minimum pension liability (43) (43)
---------- ----------
Total common stockholders' deficit (97,747) (101,436)
---------- ----------
Total liabilities, preferred stock and
common stockholders' deficit $ 544,595 $ 538,720
========== ==========
</TABLE>
See accompanying notes to consolidated financial statements.
<PAGE>
AMERICOLD CORPORATION
CONSOLIDATED STATEMENTS OF OPERATIONS
Three months ended last day of May 1994 and 1995
(In thousands, except per share data)
<TABLE>
<CAPTION>
Three months Three months
ended last ended last
day of day of
May 1994 May 1995
------------ ------------
(Unaudited) (Unaudited)
<S> <C> <C>
Net sales $ 48,752 $ 53,183
----------- ----------
Operating expenses:
Cost of sales 31,932 33,574
Amortization of cost in excess of
net assets acquired 635 633
Selling and administrative expenses 6,654 6,909
----------- -----------
Total operating expenses 39,221 41,116
----------- -----------
Gross operating margin 9,531 12,067
----------- -----------
Other (expense) income:
Interest expense (13,744) (14,234)
Reorganization expenses (note 2) - (3,523)
Other, net 154 337
----------- -----------
Total other expense (13,590) (17,420)
----------- -----------
Loss before income taxes (4,059) (5,353)
Benefit for income taxes (note 4) 1,343 1,851
----------- -----------
Net loss $ (2,716) $ (3,502)
=========== ===========
Net loss per common share $ (0.59) $ (0.76)
=========== ===========
Weighted average number of shares
outstanding 4,864 4,861
=========== ===========
</TABLE>
See accompanying notes to consolidated financial statements.
<PAGE>
AMERICOLD CORPORATION
CONSOLIDATED STATEMENTS OF CASH FLOWS
Three months ended last day of May 1994 and 1995
(In thousands)
<TABLE>
<CAPTION>
Three months Three months
ended last ended last
day of day of
May 1994 May 1995
----------- -----------
(Unaudited) (Unaudited)
<S> <C> <C>
Cash flows from operating activities:
Net loss $ (2,716) $ (3,502)
Adjustments to reconcile net loss to net
cash provided (used) by operating activities:
Depreciation 5,122 4,720
Amortization and other noncash expenses 1,162 1,415
Changes in assets and liabilities (3,867) 2,750
Provision for deferred taxes (1,343) (1,851)
----------- -----------
Net cash provided (used) by operating activities (1,642) 3,532
----------- -----------
Cash flows from investing activities:
Net expenditures for property, plant
and equipment (2,699) (16,878)
Proceeds from insurance policies and other items, net 23,659 852
----------- -----------
Net cash provided (used) by investing activities 20,960 (16,026)
----------- -----------
Cash flows from financing activities:
Principal payments under capitalized
lease and other debt obligations (401) (622)
Release of escrowed funds - 15,954
----------- -----------
Net cash provided (used) by financing activities (401) 15,332
----------- -----------
Net increase in cash and cash equivalents 18,917 2,838
Cash and cash equivalents at beginning of period 3,892 33,163
----------- -----------
Cash and cash equivalents at end of period $ 22,809 $ 36,001
=========== ===========
Supplemental disclosure of cash flow information:
Cash paid year-to-date for interest,
net of amounts capitalized $ 17,309 $ 11,392
=========== ===========
Cash paid during the year for income taxes $ 28 $ 324
=========== ===========
</TABLE>
See accompanying notes to consolidated financial statements. <PAGE>
AMERICOLD CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. PRINCIPLES OF CONSOLIDATION
The consolidated balance sheet as of the last day of May 1995,
the related consolidated statements of operations for the
three months ended the last day of May 1994 and May 1995, and
the related consolidated statements of cash flows for the
three months ended the last day of May 1994 and May 1995 are
unaudited. In the opinion of management, all adjustments
necessary for a fair presentation of such financial statements
have been included. Such adjustments consisted of normal
recurring items. Interim results are not necessarily
indicative of results for a full year. The financial
information presented herein should be read in conjunction
with the financial statements included in the registrant's
Annual Report on Form 10-K for the year ended the last day of
February 1995.
2. PLAN OF REORGANIZATION UNDER CHAPTER 11
On May 9, 1995, the Company filed a prepackaged plan of
reorganization (the "Plan") under Chapter 11 of the United
States Bankruptcy Code in the United States Bankruptcy Court
for the District of Oregon (the "Court"). The principal
purpose of the Plan was to reduce the Company's short-term
cash requirements with respect to payments due on its
subordinated indebtedness and to adjust certain restrictive
financial covenants and certain other provisions contained in
the Amended and Restated Investment Agreement, dated March 2,
1993, between the Company and Metropolitan Life Insurance
Company (the "MetLife"). On the filing date, the Plan had
been approved by both of the classes of debtholders entitled
to vote on the Plan.
As further explained in note 7, a hearing was held on June 19,
1995 at which time the Court confirmed the Plan. The Company
emerged from the Chapter 11 proceedings on June 30, 1995.
The consolidated financial statements have therefore been
prepared on a going concern basis, which contemplates
continuity of operation, realization of assets and liquidation
of liabilities in the ordinary course of business.
In November 1990, the American Institute of Certified Public
Accountants issued Statement of Position 90-7, "Financial
Reporting by Entities in Reorganization Under the Bankruptcy
Code" ("SOP 90-7"). Under SOP 90-7, the financial statements
for periods including and subsequent to filing a Chapter 11
petition are structured to distinguish transactions and events
that are directly associated with the reorganization from the
ongoing operations of the Company. Since the Company was in
Chapter 11 proceedings for less than two months, and since the
Plan did not differentiate between prepetition and post-
petition liabilities and did not include any forgiveness of
liabilities, the Company has elected not to follow the
presentation proposed by SOP 90-7. The Company has expensed
all professional fees and similar types of expenditures
incurred through the last day of May 1995 directly relating to
the Chapter 11 proceedings as "reorganization expenses." The
Company also has not recorded the effects of possible
rejections of executory contracts or leases in the financial
statements for the first three months of fiscal 1996 (see note
7).
3. COMMON STOCKHOLDERS' DEFICIT
The Company has reserved 300,000 shares of common stock for
issuance under a stock option plan established in 1987. Under
the plan, options are granted by the compensation committee of
the Board of Directors to purchase common stock at a price not
less than 85% of the fair market value on the date the option
is granted.
Information with regard to the plan as of the last day of May
1995 follows:
Number of Shares Exercise Number of Shares Expiration
Subject to Option Price Exercisable Date
----------------- -------- ---------------- ----------
93,795 $10.00 93,795 May 1998
100,000 $18.95 80,000 June 2000
30,000 $21.88 12,000 May 2003
30,000 $20.40 6,000 December 2003
In addition, the Company had reserved 500,000 shares of common
stock for issuance under a Stock Incentive Plan effective
March 1, 1991.
Under the terms of the plan, officers and key management
employees can receive either common stock or cash in specified
amounts depending upon the financial performance of the
Company measured over a four-year period ending February 28,
1995. Since inception of the plan, the Board had approved a
total award of approximately 106,000 shares. The Board
suspended the Stock Incentive Plan effective February 28,
1994. In April 1995, all awards accrued and payable under the
plan were paid. All participants elected to receive cash plus
interest in lieu of stock.
4. PROVISION FOR INCOME TAXES
The provision for income taxes was computed using a tax rate
of 39.2%. The tax rate was applied to income or loss before
taxes, after adding back amortization of cost in excess of net
assets acquired.
5. LOSS PER COMMON SHARE
Loss per common share is computed by dividing net loss, less
preferred dividend requirements, by the weighted average
number of common shares outstanding. See Exhibit 11,
Statement Re Computation of Per Share Earnings.
6. CASH AND CASH EQUIVALENTS
Cash and cash equivalents includes highly liquid investment
instruments, with original maturities of three months or less
when purchased. There were cash equivalents totaling
approximately $25.2 million and $31.9 million as of the last
day of February 1995 and May 1995, respectively.
As of May 31, 1995, the Company was holding approximately $4.8
million in cash which had been tendered to the Trustee under
the indenture related to its first mortgage bonds to
substitute as cash collateral for the property lost at the
Kansas City, Kansas warehouse facility. The Company has not
reclassified any cash balance for the payment.
7. SUBSEQUENT EVENTS
Subsequent to the end of the fiscal quarter, on June 19, 1995,
the Court approved the Company's Disclosure Statement dated
April 14, 1995 and the Company's solicitation of votes to
accept or reject the Plan, and confirmed the Plan. On June
30, 1995, the Company emerged from the Chapter 11 proceedings
in accordance with the Plan, pursuant to which:
(i) each holder of the Company's 11% Senior Subordinated
Debentures due 1997 is entitled to receive a corresponding
amount of new 15% Senior Subordinated Debentures due 2007, and
an amount in cash equal to the accrued but unpaid interest on
the old Senior Subordinated Debentures through June 29, 1995;
and
(ii) the Company repurchased on June 30, 1995 $10 million of
its 11.45% Series A First Mortgage Bonds due 2002 at par and
paid an agreement modification fee of $2.25 million to the
MetLife in connection with amending the Amended and Restated
Investment Agreement, dated March 2, 1993, between the Company
and the MetLife.
Also subsequent to the end of the fiscal quarter, the Company:
(a) Amended on June 30, 1995 the existing credit agreement
with its primary bank, which provides an aggregate
availability of $27.5 million, to be used for any
combination of letters of credit (up to $10.0 million)
and revolving cash borrowings, subject to borrowing base
limitations. The new credit agreement will be secured by
the Company's trade receivables and, at the Company's
option, mortgages on certain of the Company's warehouse
properties.
(b) Filed motions to reject certain lease agreements.
Properties subject to the leases accounted for
approximately $11.7 million of sales and a minimal amount
of gross operating margin in fiscal 1995. The outcome of
the rejections cannot be predicted at this time.
(c) Transferred on June 30, 1995, the $4.8 million as
described in note 6, above, relative to insurance
proceeds from Kansas City.
<PAGE>
ITEM 2: MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
RESULTS OF OPERATIONS
- ---------------------
INTRODUCTION - During the first quarter of fiscal 1996, the
Company solicited acceptance of a prepackaged plan of
reorganization (the "Plan") under Chapter 11 of the United
States Bankruptcy Code from certain debtholders as a means of
implementing the Company's plan for restructuring a portion of
its outstanding indebtedness. On May 8, 1995, the Company
received approval from the classes of debtholders entitled to
vote on the Plan, and on May 9, 1995, filed the Plan as
approved with the United States Bankruptcy Court for the
District of Oregon (the "Court"). The Company was debtor-in-
possession during the proceedings. Subsequent to the end of
the fiscal quarter, on June 19, 1995, the Court approved the
Company's Plan, and on June 30, 1995, the Company emerged from
the Chapter 11 proceedings. See " - Liquidity and Capital
Resources."
NET SALES - The Company's net sales increased 9.1% from $48.8
million for the first quarter of fiscal 1995 to $53.2 million
for the same period in fiscal 1996.
Americold's net sales for the first three months of fiscal
1995 and the first three months of fiscal 1996 are detailed in
the table below by activity:
NET SALES
(Dollars in Millions)
First Three Months First Three Months
Fiscal 1995 Fiscal 1996
----------- ----------- % Change
Amount % Amount % 1995 to 1996
------ --- ------ --- ------------
Storage $ 22.9 46.9% $ 24.7 46.4% 7.9%
Handling 16.8 34.4% 18.0 33.8% 7.1%
Freezing 1.3 2.7% 1.1 2.1% (15.4)%
Leasing 1.8 3.7% 1.7 3.2% (5.6)%
Other 0.9 1.8% 0.7 1.3% (22.2)%
------ ----- ------ ----- -------
Net ware-
housing
sales $ 43.7 89.5% $ 46.2 86.8% 5.4%
Quarry sales 1.2 2.5% 0.9 1.7% (25.0)%
Transportation
management
services 3.9 8.0% 6.1 11.5% 56.4%
------ ----- ------ ----- -----
Total net
sales $ 48.8 100.0% $ 53.2 100.0% 9.1%
====== ====== ====== ====== =====
Warehousing sales increased 5.4% from $43.7 million for the
first three months of fiscal 1995 to $46.2 million for the
same period in fiscal 1996, primarily due to a 7.9% increase
in storage revenue and a 7.1% increase in handling revenue.
The increase in storage revenue resulted from an increase in
storage volume of 5.0%, assisted slightly by price increases
and other factors. The increase in storage volume is due
primarily to the increased storage of vegetables, which is
attributable to a strong vegetable harvest in the Midwest in
calendar 1994.
The increase in handling revenue resulted primarily from a
5.1% increase in volume of product handled. For the first
three months of fiscal 1995, 4.7 billion pounds of product
were handled by the Company compared with 4.9 billion pounds
during the same period in fiscal 1996. While handling volume
increased 5.1%, handling revenue increased 7.1% due to
increased processing and special services revenue (classified
by the Company as handling revenue), and changes in product
mix.
Nonwarehousing sales increased 37.3% from $5.1 million for the
first three months of fiscal 1995 to $7.0 million in the
comparable period in fiscal 1996, due to increased sales from
the Americold Transportation Systems ("ATS") unit, which
offset the decrease in quarry sales. The development of the
Company's transportation management services business is
proceeding and the Company believes that growth will continue
in its logistics business.
COST OF SALES - Cost of sales increased a net $1.6 million or
5.1% from $31.9 million for the first three months of fiscal
1995 to $33.6 million for the first three months of fiscal
1996. Increased volume at ATS, which requires corresponding
increases in transportation capacity purchased from carriers,
resulted in an approximate $2.1 million increase in cost of
goods sold, which was offset by a decrease of approximately
$0.4 million of depreciation. The Company was able to manage
the increase in handling volume at the Company's facilities
without any increased warehouse payroll expense.
Cost of sales as a percentage of net sales decreased from
65.5% in the first three months of fiscal 1995 to 63.1% in the
first three months of fiscal 1996, even as handling and ATS
sales, which have high variable cost requirements, increased
from 42.4% of net sales in the prior period to 45.3% in the
more recent period.
SELLING AND ADMINISTRATIVE EXPENSES - Selling and
administrative expenses for the first three months of fiscal
1995 were $6.7 million, as compared to $6.9 million for the
first three months of fiscal 1996, an increase of 3.8%. The
increase primarily reflects an increase of approximately $.2
million in salaries and related fringe benefits, partially
related to the increase in ATS activity.
INTEREST EXPENSE - Interest expense increased 3.6% from $13.7
million for the first three months of fiscal 1995 to $14.2
million for the first three months of fiscal 1996 as a result
of slightly higher overall borrowings. The increase in
borrowings resulted from funds obtained to finance a warehouse
expansion in fiscal 1995.
REORGANIZATION EXPENSES - Reorganization expenses reflects the
expenses related to the Chapter 11 proceedings incurred for
professional services including investment banking, accounting
and legal fees through the first quarter of fiscal 1996. The
Company anticipates significant additional expenses to be
incurred in the second quarter of fiscal 1996.
INCOME - The Company's loss before income taxes for the first
three months of fiscal 1995 was $4.1 million, compared to $5.4
million in the first three months of fiscal 1996. The
increased loss is primarily the result of approximately $3.5
million of reorganization expenses incurred during the period.
SUBSEQUENT EVENT - Subsequent to the end of the fiscal
quarter, on June 19, 1995, the Court approved the Company's
Plan, and on June 30, 1995, the Company emerged from the
Chapter 11 proceedings. See " - Liquidity and Capital
Resources."
<PAGE>
LIQUIDITY AND CAPITAL RESOURCES
- -------------------------------
LIQUIDITY
---------
OPERATING CASH FLOW - The Company relies primarily upon cash
generated by operations to service debt and fund capital
expenditures. Net cash flow from operating activities as
reported in the Company's consolidated financial statements
improved from a negative $1.6 million for the first three
months of fiscal 1995 to $3.5 million for the first three
months of fiscal 1996. The increase is due primarily to a
decrease in trade receivables, resulting from changes in the
timing of certain cash collections, and from the postponement
due to the bankruptcy proceeding of the approximately $6.3
million of interest due on May 1, 1995 on the subordinated
debentures.
The Company's working capital position as of the last day of
the three-month period ended May 31, 1995 was a negative $15.2
million. This position compares to a negative $14.9 million
at fiscal 1995 year end. The decrease is due primarily to
timing of certain cash collections and payments.
SHORT-TERM CAPITAL RESOURCES - The Company did not pursue
debtor-in-possession financing while in Chapter 11. The
Company's cash position throughout the bankruptcy proceedings
was sufficient to finance operations during such period.
As part of the bankruptcy proceedings, subsequent to the end
of the fiscal quarter, on June 30, 1995, the Company amended
its credit agreement with the U. S. National Bank of Oregon
(the "Bank") (the "New Credit Agreement"). The New Credit
Agreement provides an aggregate availability of $27.5 million,
which may be used for any combination of letters of credit (up
to $10.0 million) and revolving cash borrowings, subject to
borrowing base limitations. The borrowing base for both cash
borrowings and letter of credit amounts will equal 85% of
eligible accounts receivable, plus 70% of the value of all
real property mortgaged to the Bank, up to a maximum of $27.5
million. The New Credit Agreement is secured by the Company's
trade receivables and, at the Company's option, mortgages on
certain of the Company's warehouse properties. The Company
has not mortgaged any properties to the Bank under the New
Credit Agreement. Borrowings under the New Credit Agreement
will mature on February 28, 1999. The New Credit Agreement
eliminates the 30-day resting period (during which there may
be no outstanding borrowings) for fiscal 1996 and requires
only one such period for fiscal 1997. Two such periods will
be required during fiscal 1998 and fiscal 1999. The New
Credit Agreement also contains amendments of certain financial
covenants contained in the existing credit agreement in light
of the restructuring.
DEBT SERVICE REQUIREMENTS - The Company believes that making
payments due on long-term debt in the first half of fiscal
1996 would have created a default at the next measurement date
(May 31, 1995) under the pro forma debt service covenant (as
defined) contained in the Amended and Restated Investment
Agreement, dated March 2, 1993 (the "Old Investment
Agreement"), between the Company and the MetLife, and a
default under the old credit agreement relating to an out-of-
debt requirement as of June 30, 1995. The Company therefore
proposed the Plan to alleviate the Company's anticipated
liquidity shortfall and to avoid defaulting under its various
debt agreements.
The Plan, as approved by the Court on June 19, 1995 and
executed on June 30, 1995, provided, among other things, that:
(i) each holder of the Company's 11% Senior
Subordinated Debentures due 1997 is entitled to receive a
corresponding amount of the new 15% Senior Subordinated
Debentures due 2007, and an amount in cash equal to the
accrued but unpaid interest on the old Senior Subordinated
Debentures through June 29, 1995. The new 15% Subordinated
Debentures were issued subject to an indenture which contained
financial and other covenants similar to those contained in
the existing indenture for the Company's first mortgage bonds.
(ii) the legal, equitable and contractual rights of
each holder of the Company's 11.45% First Mortgage Bonds,
Series A due 2002 (the "Series A Bonds") and 11 1/2% First
Mortgage Bonds, Series B due 2005 (the "Series B Bonds")
(collectively, the "First Mortgage Bonds"), under the Amended
and Restated Indenture, dated as of March 9, 1993, were left
unaltered; and
(iii) the Old Investment Agreement between the
Company and the MetLife was superseded by the Second Amended
and Restated Investment Agreement (the "New Investment
Agreement"), which contains certain financial and operating
covenants that in some cases are less restrictive than those
contained in the Old Investment Agreement, and pursuant to
which (x) the Company redeemed $10.0 million in principal
amount of the Company's Series A Bonds held by the MetLife,
and (y) the Company has the right, under certain
circumstances, to redeem prior to scheduled maturity
additional Series A Bonds without payment of any prepayment
premium. The Company also paid an agreement modification fee
of $2.25 million to the MetLife.
Also subsequent to the end of the fiscal quarter, the Company
has filed motions to reject certain lease agreements.
Properties subject to the leases accounted for approximately
$11.7 million of sales and a minimal amount of gross operating
margin in fiscal 1995. The outcome of the rejections cannot
be predicted at this time.
The Company believes the Plan has mitigated the Company's
near-term financial vulnerability by postponing the maturity
of its subordinated debt and increased the likelihood that the
Company will realize the benefits of capital expenditures from
its escrowed funds and its anticipated expansion of its
refrigerated transportation management business. The
Company's present level of cash flow available from operations
and escrowed funds is expected to be sufficient to cover all
interest payments and planned capital expenditures for fiscal
1996. The Company is currently constructing three new
warehouse properties, two of which are expected to be funded
with the remaining balance of escrowed funds. For the third
property, the Company is currently negotiating for funding
from an outside source. Upon completion of construction of
these properties, the Company will have expended all of the
escrowed funds, except for the $4.8 million which has been
deposited with the trustee out of the insurance proceeds from
the Kansas City fire. After the reorganization, however, the
Company will remain highly leveraged and will continue to be
subject to substantial principal and interest obligations with
respect to its indebtedness.
CAPITAL RESOURCES - Expenditures for property, plant and
equipment for the first three months of fiscal 1996 totaled
$16.9 million, of which approximately $15.5 million relates to
warehouse expansions currently underway. Budgeted fiscal 1996
capital expenditures total approximately $35.4 million,
including approximately $25.6 million for property
development. A portion, related primarily to material
handling equipment, is expected to be leased on an operating
or capital lease basis.
As of May 31, 1995, the Company was holding approximately $4.8
million in cash which had been tendered to the Trustee under
the indenture related to its first mortgage bonds to
substitute as cash collateral for the property lost at the
Kansas City, Kansas warehouse facility. The Company has not
reclassified any cash balance for the possible payment.
Although no formal agreement has been reached with the
Trustee, on June 30, 1995, the Company transferred the $4.8
million in cash to the Trustee. Such funds will be used for
acquisition or construction of new warehouse properties, to
expand or improve existing warehouse properties, or applied to
repurchase outstanding First Mortgage Bonds.
The Company, as part of its Kansas City, Kansas location,
operates a limestone quarry. Subject to the completion of
certain remaining due diligence items, the Company expects to
dispose of this business during the first half of fiscal 1996.
Net proceeds of the sale must, in accordance with the
Company's existing debt agreements, be reinvested in warehouse
properties or used to satisfy, in part, the mortgage
obligation on the property.
<PAGE>
PART II - OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
On May 9, 1995, the Company filed the Plan under Chapter 11 of
the United States Bankruptcy Code in the Court (Case No. 395-
33058elp11). The principal purpose of the Plan was to reduce
the Company's short-term cash requirements with respect to
payments due on its subordinated indebtedness and to adjust
certain restrictive financial covenants and certain other
provisions contained in the Amended and Restated Investment
Agreement, dated March 2, 1993, between the Company and
Metropolitan Life Insurance Company. On the filing date, the
Plan had received approval from both of the classes of
debtholders entitled to vote on the Plan.
Subsequent to the end of the fiscal quarter, a hearing was
held on June 19, 1995 at which the Court approved the motion
of the Company requesting the Court (1) to approve the
Company's Disclosure Statement dated April 14, 1995 and the
Company's procedure for solicitation of votes to accept or
reject the Plan, and (2) to confirm the Plan. The Company
emerged from the Chapter 11 proceedings on June 30, 1995.
For additional information with respect to the Plan, see Part
I, Item 2. - "Management's Discussion and Analysis of
Financial Condition and Results of Operations -- Liquidity and
Capital Resources."
ITEM 2. CHANGES IN SECURITIES
Under the Plan, the holders of the Company's 11% Senior
Subordinated Debentures due 1997 will exchange those
debentures for the Company's new 15% Senior Subordinated
Debentures due 2007. For additional information on the 15%
Senior Subordinated Debentures, see Part I, Item 2. -
"Management's Discussion and Analysis of Financial Condition
and Results of Operations -- Liquidity and Capital Resources."
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
On June 26, 1995, subsequent to the end of the fiscal quarter,
the annual meeting of shareholders of the Company was held.
The Company did not solicit proxies. At the meeting, the
following actions were approved by the shareholders:
(a) Election of a Board of Directors for the ensuing
year consisting of Ronald H. Dykehouse, Frank
Edelstein, William A. Marquard, George E. Matelich,
James C. Pigott and Joel M. Smith.
(b) Approval of the selection of KPMG Peat Marwick as
the Company's auditors for fiscal 1996.
With respect to the election of directors, there were
2,651,500 votes cast for the election of each of the nominees
for director and no abstentions.
With respect to the approval of the selection of auditors,
there were 2,651,500 votes cast for approval and no
abstentions.
No votes were cast against the proposal related to the
ratification of the selection of auditors.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits
(3) Articles of Incorporation and Bylaws
(i) Second Restated Articles of
Incorporation, as amended
(4) Instruments defining the rights of security
holders, including indentures
4.1 First Supplemental Indenture to
Amended and Restated Indenture,
dated as of March 9, 1993, with
respect to First Mortgage Bonds
4.2 Indenture dated June 30, 1995 with
respect to the 15% Senior
Subordinated Debentures, due 2007
4.3 Second Amended and Restated
Investment Agreement, dated May 5,
1995, between the Company and
Metropolitan Life Insurance Company
(10) Material Contracts
10.1 Second Amended and Restated Credit
Agreement, dated June 19, 1995,
between the Company and United
States National Bank of Oregon
(11) Statement re Computation of Per Share Earnings
(27) Financial Data Schedule
(b) Reports on Form 8-K
During the quarter, the following were filed:
1. A Current Report on Form 8-K, dated April 14,
1995, was filed on April 14, 1995 disclosing
the distribution of a confidential disclosure
statement to certain of the Company's
debtholders describing the Company's plan for
restructuring certain of its outstanding
indebtedness.
2. A Current Report on Form 8-K, dated May 9,
1995, was filed on May 10, 1995 announcing
that the Company's restructuring plan had
received approval from both classes of
debtholders entitled to vote on the plan and
that the Company had filed the plan as
approved as a prepackaged plan of
reorganization under Chapter 11 of the U. S.
Bankruptcy Code in the United States
Bankruptcy Court for the District of Oregon on
May 9, 1995.
3. A Current Report on Form 8-K, dated June 19,
1995, was filed on June 22, 1995 announcing
that the Company's restructuring plan had been
confirmed by the United States Bankruptcy
Court for the District of Oregon on June 19,
1995.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has duly caused this report to be signed on
its behalf by the undersigned thereunto duly authorized.
AMERICOLD CORPORATION
/s/ Joel M. Smith
---------------------------
JOEL M. SMITH, Senior Vice President
and Chief Financial Officer
Date: July 14, 1995
<PAGE>
AMERICOLD CORPORATION
FORM 10-Q
Exhibit Index
Exhibit Page
- ------- ----
(3) Articles of Incorporation and Bylaws
(i) Second Restated Articles of Incorporation,
as amended
(4) Instruments defining the rights of security
holders, including indentures
4.1 First Supplemental Indenture to Amended
and Restated Indenture
4.2 Indenture to the 15% Senior Subordinated
Debentures, due 2007
4.3 Second Amended and Restated Investment
Agreement
(10) Material Contracts
10.1 Second Amended and Restated Credit
Agreement
(11) Statement re Computation of Per Share
Earnings
(27) Financial Data Schedule
<PAGE>
Submit the Original SECRETARY OF STATE
And One True Copy CORPORATION DIVISION
No Fee Required 158 12th Street NE
Salem, OR 97310
Registry Number: ARTICLES OF AMENDMENT
Designation of Class or Series
034685-19 By Board of Directors
- ----------------
(if known)
PLEASE TYPE OR PRINT LEGIBLY IN BLACK INK
1. Name of the corporation: Americold Corporation
-----------------------------------
2. This amendment was duly adopted by the board of directors on
June 20, 1989
-------------
3. The amendment determining the terms of the class or series
of shares is as follows:
(Or a copy of the amendment is attached.)
The Statement of Preferences, Limitations and Relative
Rights of Cumulative Preferred Stock (the "Statement")
establishing the Americold Corporation Series A Variable
Rate Cumulative Preferred Stock, par value $100 per share,
as filed with the Secretary of State of the State of Oregon
on September 28, 1988, is amended as follows:
(a) In Section 2(A) September 1, 1989 is changed each
time it appears to July 1, 1989 and September 1 is changed
each time it appears to July 1.
(b) In Section 5(A) September 1, 1990 is changed each
time it appears to July 1, 1990.
Except as amended herein, all other provisions of the
Statement shall remain unchanged.
Execution:/s/ John J. Waugh John J. Waugh, Chairman and Chief
Executive Officer
-------------------------------------------------------
Signature Printed Name Title
Person to contact about this filing: Brian G. Booth
---------------------------
Name
(503) 221-1440
---------------------------
Daytime Phone Number
Submit the original and a true copy to the Corporation Division,
158 12th Street NW, Salem, Oregon 97310. There is no fee
required. If you have questions, please call (503) 378-4166.
<PAGE>
<PAGE>
Submit the Original SECRETARY OF STATE
And One True Copy CORPORATION DIVISION
No Fee Required 158 12th Street NE
Salem, OR 97310
Registry Number: ARTICLES OF AMENDMENT
Designation of Class or Series
034685-19 By Board of Directors
- ----------------
(if known)
PLEASE TYPE OR PRINT LEGIBLY IN BLACK INK
4. Name of the corporation: Americold Corporation
-----------------------------------
5. This amendment was duly adopted by the board of directors on
September 20, 1988
------------------
6. The amendment determining the terms of the class or series
of shares is as follows:
(Or a copy of the amendment is attached.)
Pursuant to Article IV of the Second Restated Articles of
Incorporation the Board of Directors of Americold
Corporation (the "Corporation") has fixed the number,
designation, preferences, limitations and relative rights of
the series of Cumulative Preferred Stock on the terms and
with the provisions set forth on Exhibit A attached hereto.
Execution: /s/Joel M. Smith Senior Vice President
Joel M. Smith & Chief Financial Officer
-------------------------------------------------------
Signature Printed Name Title
Person to contact about this filing: Brian G. Booth
---------------------------
Name
(503) 221-1440
---------------------------
Daytime Phone Number
Submit the original and a true copy to the Corporation Division,
158 12th Street NW, Salem, Oregon 97310. There is no fee
required. If you have questions, please call (503) 378-4166.
<PAGE>
Exhibit A
AMERICOLD CORPORATION
STATEMENT OF PREFERENCES, LIMITATIONS
AND RELATIVE RIGHTS
OF CUMULATIVE PREFERRED STOCK
Pursuant to ORS 60.134
SECTION 1. DESIGNATION AND AMOUNT. The shares of this
series shall be designated as "Series A Variable Rate Cumulative
Preferred Stock", par value $100 per share ("Cumulative Preferred
Stock"), and the number of shares constituting such series shall
be 100,000. The stated value of each share of Cumulative
Preferred Stock shall be $100.
SECTION 2. DIVIDEND RATE.
(A) The holders of record of shares of the Cumulative
Preferred Stock, when and as declared by the Board of Directors
out of funds legally available therefor, shall be entitled to
receive dividends in (i) cash, (ii) Common Stock of the
Corporation, par value $.01 per share ("Common Stock"), (iii)
Cumulative Preferred Stock or (iv) any combination thereof, at
the option of the Corporation until the fifth anniversary of the
date hereof, and in cash thereafter (unless then prohibited by
the Corporation' s borrowing or other agreements, in which event
dividends shall be in Common Stock). The initial dividend rate
per share shall be 14 percent per annum of the stated value of
such shares, which rate shall remain in effect through September
1, 1989, unless, prior to that date, (i) for a period of at least
30 consecutive days within a fiscal year of the Corporation there
is a change upwards or downward of 200 or more basis points in
interest rates as measured by the prime borrowing rate of United
States National Bank of Oregon, or (ii) the Corporation (a)
redeems any of the Cumulative Preferred Stock, other than shares
of Cumulative Preferred Stock which are distributable as benefits
under the Corporation's Employee Stock Ownership Plan, (b) issues
any security on a parity with, or senior to, the Cumulative
Preferred Stock or (c) undergoes a negative change in its
Stockholders' Equity (as hereinafter defined) (x) in an amount
greater than 10 percent pursuant to entering into any
Extraordinary Transaction (as hereinafter defined) or (y) in an
amount greater than 20 percent for any reason other than normal
operating results or as set forth in (x) above. Each of the
events described in clauses (i), (ii)(a), (ii)(b) and (ii)(c) of
the preceding sentence shall be known as a "Readjustment Event".
In the event of any Readjustment Event, the dividend rate shall
be subject to readjustment in accordance with the procedures set
forth herein. Beginning with the September 1, 1989 dividend, the
dividend rate shall be reset (i) annually and (ii) after the
occurrence of any Readjustment Event at the lowest rate which
will result in the shares having a fair market value equal to
their stated value as of the date such dividend rate is
determined. Such rate will be determined by the Board of
Directors, or any authorized committee thereof, prior to each
Dividend Date (as hereinafter defined), and promptly after any
Readjustment Event occurring after the date hereof except as
provided in the next sentence. If the Readjustment Event is an
interest rate change, as set forth above, and no other
Readjustment Event subsequently occurs, the determination of the
dividend rate will be made prior to the next Dividend Date and
given a retroactive effect as of the date of the Readjustment
Event.
All such determinations of dividend rates shall be
evidenced by a resolution and based upon consultation with an
independent valuation firm retained by the ESOP Administrative
Committee appointed by the Board of Directors (the "ESOP
Administrative Committee"). The determinations will take into
account the Corporation's financial condition, prevailing market
conditions and other such factors as the independent valuation
firm deems necessary, such process being hereinafter referred to
as the "Valuation".
Dividends shall be payable annually on September 1 (the
"Dividend Date"), commencing September 1, 1989. Each such
dividend shall be paid to holders of record of the Cumulative
Preferred Stock as they shall appear on the stock register of the
Corporation on the record date, not exceeding 45 days nor less
than 10 days, preceding such Dividend Date. Dividends on the
Cumulative Preferred Stock shall accrue daily, and shall be
cumulative from one day following the date of original issue.
The amount of any dividends "accrued" on any share of the
Cumulative Preferred Stock at any Dividend Date shall be deemed
to be the amount of any unpaid dividends accumulated thereon, to
and including such Dividend Date, whether or not earned or
declared. The amount of dividends "accrued" on any share of the
Cumulative Preferred Stock at any date other than a Dividend Date
shall be calculated as the amount of any unpaid dividends
accumulated to and including the last preceding Dividend Date,
whether or not earned or declared, plus an amount calculated on
the basis of the dividend rate for the period after such last
preceding Dividend Date to and including the date as of which the
calculation is made.
So long as any of the shares of Cumulative Preferred
Stock are outstanding, no dividends shall be paid or declared,
nor any distribution made, on the Corporation's Common Stock, or
any other security junior to the Cumulative Preferred Stock,
other than a dividend payable in Common Stock of the Corporation,
nor shall any shares of Common Stock, or any other security
junior to the Cumulative Preferred Stock, be acquired for
consideration by the Corporation, unless all dividends on the
Cumulative Preferred Stock for all past Dividend Dates shall have
been paid and the full dividends thereon for the most recent
Dividend Date shall have been paid, or declared and a sum
sufficient for the payment thereof set apart. Subject to the
foregoing provisions, dividends on the Common Stock (payable in
cash, stock or otherwise) as may be determined by the Board of
Directors may be declared and paid from time to time out of the
remaining funds legally available for the payment of dividends,
and the Cumulative Preferred Stock shall not be entitled to
participate in any such dividends, whether payable in cash, stock
or otherwise.
For purposes of this Section 2, (i) an "Extraordinary
Transaction" shall be a transaction to which the Corporation is a
party involving a merger, share exchange, recapitalization, the
declaration by the Corporation of a cash dividend on its Common
Stock, sale of all or substantially all of the Corporation's
assets, or the purchase by the Corporation of its shares of
Common Stock in an amount exceeding $1,000,000 in any fiscal year
and (ii) "Stockholders Equity" as of any date shall mean the
amount of equity of the holders of capital stock of the
Corporation, determined in accordance with generally accepted
accounting principles consistently applied, that would appear on
the balance sheet of the Corporation as of such date.
(B) The holders of the Cumulative Preferred Stock
shall be entitled to receive dividends on a parity with any other
series or class of Preferred Stock of the Corporation that is not
junior to the Cumulative Preferred Stock. In the event that
dividends are not paid in full to the holders of all outstanding
shares of Cumulative Preferred Stock and any other class or
series of stock entitled to receive dividends and liquidating
distributions on a parity with the Cumulative Preferred Stock
("Parity Stock"), and funds available shall be insufficient to
permit payment in full to all such holders of the preferential
amounts to which they are then entitled, the entire amount
available for payment of dividends shall be distributed among the
holders of the Cumulative Preferred Stock and Parity Stock
ratably in proportion to the full amount to which they would
otherwise be respectively entitled.
(C) If the Corporation shall issue shares of Common
Stock or Cumulative Preferred Stock in payment of dividends,
shares of any stock so issued shall be valued at their Fair
Market Value. For purposes of this Section 2(C), the term Fair
Market Value shall mean the closing sales price (or, if no
closing sales price is reported, the average of the closing bid
and asked prices) for the Common Stock or the Cumulative
Preferred Stock as reported by the principal national or regional
stock exchange on which the Common Stock or the Cumulative
Preferred Stock is listed, or, if the Common Stock or the
Cumulative Preferred Stock is not listed on any national or
regional stock exchange, as reported by the National Association
of Securities Dealers Automated Quotations System ("NASDAQ") or,
if such Common Stock or Cumulative Preferred Stock is not quoted
on NASDAQ, as reported by the National Quotation Bureau
Incorporated, for the 20 consecutive trading days ending 5 days
before the Dividend Date. If the Fair Market Value cannot be
established as described above, the Fair Market Value of the
Cumulative Preferred Stock shall be its stated value, and the
Fair Market Value of the Common Stock shall be determined in good
faith by the Board of Directors as of a date not more than 45
days prior to the Dividend Date. Such determination shall be
evidenced by a board resolution and, in the case of Common Stock,
based upon the opinion, prepared for this purpose, of an
independent valuation firm retained by the ESOP Administrative
Committee, that is acceptable to the Board of Directors.
Fractional shares of Common Stock or Cumulative Preferred Stock
may be issued to the extent necessary to make such dividend
payments. Each fractional share of Cumulative Preferred Stock
outstanding shall be entitled to a ratably proportionate amount
of all dividends accruing with respect to each outstanding share
of Cumulative Preferred Stock. Dividends on the Cumulative
Preferred Stock shall accrue whether or not they have been
declared and whether or not there are profits, surplus or other
funds of the Corporation legally available for the payment of
dividends.
The date on which the Corporation initially issues any
share of Cumulative Preferred Stock will be deemed to be its date
of issuance regardless of the number of times transfer of such
share is made on the stock records maintained by or for the
Corporation and regardless of the number of certificates which
may be issued to evidence such share. Any additional shares of
Cumulative Preferred Stock issued pursuant to this subparagraph
(C) shall be governed by this Statement and shall be subject in
all respects to the same terms (except their date of original
issuance) as the shares of Cumulative Preferred Stock originally
issued hereunder.
SECTION 3. LIQUIDATION RIGHTS.
(A) In the event of any liquidation, dissolution or
winding up of the Corporation, whether voluntary or involuntary,
before any distribution or payment shall be made to the holders
of any Common Stock or of any stock ranking junior to the
Cumulative Preferred Stock in respect of distribution of assets,
the holders of the Cumulative Preferred Stock shall be entitled
to receive the stated value per share, plus an amount equal to
the accrued and unpaid dividends thereon to the date of payment.
The holders of the Cumulative Preferred Stock shall, upon any
liquidation, dissolution or winding up of the affairs of the
Corporation, be entitled to receive distributions of the net
assets of the Corporation on a parity with the holders of any
Parity Stock of the Corporation. If, upon any such liquidation,
dissolution or other winding up of the affairs of the
Corporation, the net assets of the Corporation distributable
among the holders of all outstanding shares of the Cumulative
Preferred Stock and of any Parity Stock shall be insufficient to
permit the payment in full to such holders of the preferential
amounts to which they are entitled, then the entire net assets of
the Corporation to which they may be entitled shall be
distributed among the holders of the Cumulative Preferred Stock
and of any Parity Stock ratably in proportion to the full amounts
to which they would otherwise be respectively entitled.
(B) Upon any such liquidation, dissolution or winding
up of the Corporation, after the holders of the Cumulative
Preferred Stock and any Parity Stock shall have been paid in full
the amounts to which they shall be entitled, the remaining assets
of the Corporation may be distributed to the holders of Common
Stock or any stock ranking junior to the Cumulative Preferred
Stock in respect to distribution of assets. Written notice of
such liquidation, dissolution or winding up, stating a payment
date, the amount of the payment and the place where the amounts
distributable shall be payable, shall be mailed by certified or
registered mail, return receipt requested, not less than 20 days
prior to the payment date stated therein, to each record holder
of any share of Cumulative Preferred Stock at the address for
such record holder shown on the Corporation' s records. Neither
the merger, exchange nor other business combination of the
Corporation into or with any other corporation or corporations,
nor the sale or transfer by the Corporation of all or any part of
its assets, nor the reduction of the capital stock of the
Corporation, shall be deemed to be a liquidation, dissolution or
winding up of the Corporation, within the meaning of any of the
provisions of this Section 3.
SECTION 4. VOTING RIGHTS. The holders of the issued
and outstanding shares of Cumulative Preferred Stock shall not be
entitled to vote on any matters nor for any purposes, except as
required by law and as set forth in this Section 4.
From and after the date hereof, the Corporation,
without first obtaining the consent of the holders of at least a
majority of the Cumulative Preferred Stock then outstanding,
voting as a separate class, either expressed in writing or by
affirmative vote at a meeting called for that purpose, shall not:
(a) adversely change the designation or the
preferences, limitations and relative rights of the Cumulative
Preferred Stock as set forth herein, by amendment to the
Corporation's Articles of Incorporation or otherwise; or
(b) create any new class or series of stock having a
preference over the Cumulative Preferred Stock with respect to
dividends, or upon liquidation.
SECTION 5. REDEMPTION.
(A) The Corporation may, at any time after
September 1, 1990, redeem the Cumulative Preferred Stock, in
whole or from time to time in part, at a redemption price equal
to the greater of its stated value or Fair Market Value, together
with accrued and unpaid dividends thereon to the date fixed for
redemption. Prior to September 1, 1990, the Corporation may
redeem only shares of Cumulative Preferred Stock which are
distributable as benefits under the Corporation's Employee Stock
Ownership Plan. For purposes of this Section 5(A), Fair Market
Value shall mean the closing sales price (or, if no closing sales
price is reported, the average of the closing bid and asked
prices) for the Cumulative Preferred Stock as reported by the
principal national or regional stock exchange on which the
Cumulative Preferred Stock is listed, or, if the Cumulative
Preferred Stock is not listed on any national or regional stock
exchange, as reported by the National Association of Securities
Dealers Automated Quotations System or, if such Cumulative
Preferred Stock is not quoted on NASDAQ, as reported by the
National Quotation Bureau Incorporated, for the 20 consecutive
trading days ending 5 days before the date the notice of
redemption is mailed. If the Fair Market Value cannot be
established as described above, the Fair Market Value shall be
its stated value. Such determination shall be made in good faith
by the Board of Directors and shall be evidenced by a board
resolution.
(B) Notice of redemption shall be given by first class
mail or in person to the holders of shares at the respective
addresses as the same appear in the stock register of the
Corporation at least 10 days but not more than 30 days prior to
the scheduled redemption date. Upon the issuance by the
Corporation of a notice of redemption and the irrevocable deposit
by the Corporation with a trustee for the exclusive benefit of
holders of the Cumulative Preferred Stock of cash in an amount
sufficient to pay the redemption prices and all accrued and
unpaid dividends to the scheduled redemption date on all shares
of Cumulative Preferred Stock called for redemption, the holders
of such shares called for redemption shall have no further rights
as holders hereunder other than the right to receive payments
upon redemption as provided in Section 5(A).
SECTION 6. RANKING. All other series of the
Corporation's Preferred Stock shall rank junior to the Cumulative
Preferred Stock as to the payment of dividends and the
distribution of assets upon dissolution, liquidation, or winding
up, unless the terms of any such series shall provide that such
series ranks on a parity with the Cumulative Preferred Stock.
SECTION 7. REACQUIRED SHARES. Any shares of
Cumulative Preferred Stock purchased or otherwise acquired by the
Corporation in any manner whatsoever shall become authorized but
unissued shares of Preferred Stock and may be reissued as part of
this series of Cumulative Preferred Stock or a new series of
Preferred Stock to be created by resolution or resolutions of the
Board of Directors.
<PAGE>
<PAGE>
SECOND RESTATED
ARTICLES OF INCORPORATION OF
AMERICOLD CORPORATION
These Second Restated Articles of Incorporation
supersede the existing articles and all previous amendments and
restatements thereof.
ARTICLE I
The name of the Corporation shall be Americold
Corporation and its duration shall be perpetual.
ARTICLE II
The address of the Corporation's registered office and
the name of the Corporation's registered agent at that office are
as follows: Brian G. Booth, 1001 S.W. Fifth Avenue, Suite 1800,
Portland, Oregon 97204. The new agent has consented to this
appointment.
ARTICLE III
The aggregate number of shares which the Corporation
shall have authority to issue is 10,000,000 shares of Common
Stock, $.01 par value per share, and 1,000,000 shares of
Preferred Stock, $100 par value per share.
ARTICLE IV
The Board of Directors may determine, in whole or in
part, the preferences, limitations and relative rights, within
the limits set forth in the Oregon Business Corporation Act or
any successor thereto, of the Preferred Stock before the issuance
of any shares of that class or of one or more series of the
Preferred Stock before the issuance of any shares of that series.
ARTICLE V
No shareholder of the Corporation shall have any
preemptive or other first right to acquire any issue of shares of
stock or other securities of the Corporation, either presently
authorized or to be authorized. This Article IV shall not
prohibit the granting of any such right to any shareholder
pursuant to any contract or other agreement.
ARTICLE VI
A. The Corporation may indemnify to the fullest extent
permitted by law any person who is made, or threatened to be
made, a party to any action, suit or proceeding, whether civil,
criminal, administrative, investigative, or otherwise (including
any action, suit or proceeding by or in the right of the
Corporation) by reason of the fact that the person is or was a
director, officer, employee or agent of the Corporation or any of
its subsidiaries, or a fiduciary within the meaning of the
Employee Retirement Income Security Act of 1974 with respect to
any employee benefit plan of the Corporation, or serves or served
at the request of the Corporation as a director, officer,
employee or agent, or as a fiduciary of an employee benefit plan,
of another corporation, partnership, joint venture, trust or
other enterprise. Any indemnification provided pursuant to this
Article VI shall not be exclusive of any rights to which any such
person may otherwise be entitled under any articles of
incorporation, bylaw, agreement, statute, policy of insurance,
vote of shareholders or Board of Directors, or otherwise, which
exists at or subsequent to the time such person incurs or becomes
subject to such liability and expense.
B. To the fullest extent permitted by law, no director
of the Corporation shall be personally liable to the Corporation
or its shareholders for monetary damages for conduct as a
director. No amendment or repeal of this Article VI, nor the
adoption of any provision of these Second Restated Articles of
Incorporation inconsistent with this Article VI, nor a change in
the law, shall adversely affect any right or protection of a
director, which right or protection is based upon this Article VI
and arises from conduct that occurred prior to the time of such
amendment, repeal, adoption or change. No change in the law
shall reduce or eliminate the rights and protections applicable
immediately after this provision shall become effective unless
the change in the law shall specifically require such reduction
or elimination. If the Oregon Business Corporation Act is
amended, after this Article VI becomes effective, to authorize
corporate action further eliminating or limiting the personal
liability of directors of the Corporation, then the liability of
directors of the Corporation shall be eliminated or limited to
the fullest extent permitted by the Oregon Business Corporation
Act, as so amended.
c:\dms\004787\00028\0086559.Wp
07/14/95 (7:22am)
<PAGE>
FIRST SUPPLEMENTAL INDENTURE TO
AMENDED AND RESTATED INDENTURE DATED AS OF MARCH 9, 1993
AMERICOLD CORPORATION
11.45% FIRST MORTGAGE BONDS, SERIES A, DUE 2002
11 1/2% FIRST MORTGAGE BONDS, SERIES B, DUE 2005
This First Supplemental Indenture, dated as of June 30,
1995, is between AMERICOLD CORPORATION, an Oregon corporation
(the "Issuer"), and SHAWMUT BANK CONNECTICUT, NATIONAL
ASSOCIATION, AS TRUSTEE (the "Trustee").
R E C I T A L S
A. The Issuer has previously issued its 11.45% First
Mortgage Bonds, Series A, due 2002 and 11 1/2% First Mortgage
Bonds, Series B, due 2005, pursuant to an Amended and Restated
Indenture dated as of March 9, 1993 (the "Indenture"), between
Issuer and Trustee, and such First Mortgage Bonds are the only
Securities outstanding under the Indenture.
B. The Issuer desires to amend, modify, and
supplement certain provisions of the Indenture as more fully set
forth in this First Supplemental Indenture.
C. The Holders of the requisite amount of all the
Securities outstanding have consented to the execution and
delivery of this First Supplemental Indenture by the Issuer and
the Trustee.
D. Except as the context otherwise requires, all
defined terms used in this First Supplemental Indenture are used
herein with the meanings set forth in the Indenture or the
Security Documents.
NOW THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, and in
consideration of the premises and terms, conditions and mutual
promises hereinafter set forth, the Issuer and the Trustee agree
as follows:
PART I
AMENDMENT OF THE INDENTURE
1.1 AMENDMENT TO SECTION 3.01(b). Section 3.01(b) of
the Indenture is hereby amended and supplemented to read in its
entirety as follows:
(b) No redemptions of the Securities (other
than redemptions made in connection with certain events
of casualty, condemnation or taxation as set forth in
clause (d) below, the sale of economically obsolete
Mortgaged Property as set forth in clause (e) below,
releases of unimproved portions of Mortgaged Properties
as set forth in clause (f) below, any Offer made in
connection with an Asset Disposition as set forth in
Section 4.12(b) or any Change of Control as set forth
in Section 4.14 and redemptions of Series A Securities
made in connection with the sale of the Brooks, Oregon
Mortgaged Property as set forth in clause (g) below,
redemptions in accordance with the terms set forth in
Section 4.27, or in the case of Series A Securities,
redemptions required under the Investment Agreement;
all such redemptions referred to in this parenthetical,
"Special Redemptions") may be made, in the case of
Series A Securities, prior to June 30, 1995, and in the
case of Series B Securities, prior to March 1, 1998.
On or after June 30, 1995, the Series A Securities may
be redeemed, in whole or in part, upon notice given
pursuant to Section 3.02, at the following optional
redemption prices (except as provided below), together
with accrued interest to the date of redemption:
Optional
Twelve Months Beginning Redemption
July 1 Price
----------------------- ----------
1995. . . . . . . . . . . . . . . . . . . 105.725%
1996. . . . . . . . . . . . . . . . . . . 105.725
1997. . . . . . . . . . . . . . . . . . . 104.580
1998. . . . . . . . . . . . . . . . . . . 103.435
1999. . . . . . . . . . . . . . . . . . . 102.290
2000. . . . . . . . . . . . . . . . . . . 101.145
2001. . . . . . . . . . . . . . . . . . . 100.000%
Provided that the Issuer shall not be required to pay
any premium and may redeem Series A Securities, in
whole or in part, from the Initial Investor and any
other Holder thereof at 100.000% of the principal
amount of the Series A Securities to be redeemed in the
following circumstances:
(A) The redemption of $10,000,000 of
Series A Securities as provided in Section 14(b)(2) of
the Investment Agreement;
(B) Any optional redemption or prepayment or
any redemption or prepayment under the circumstances
described in Sections 9(a)(1), (2), (3) or (4) of the
Investment Agreement, either in whole or in part, on
one or more occasions within the 18-month period
described in Section 9(b) of the Investment Agreement;
and
(C) Any optional redemption or prepayment or
any redemption or prepayment under the circumstances
described in Sections 9(a)(1), (2), (3) or (4) of the
Investment Agreement, on one or more occasions up to a
total of $25,000,000 in principal amount (less the
principal amount of Series A Securities redeemed or
prepaid under Clause (B) above within the 18-month
period described therein), whenever such redemption or
prepayment shall occur.
The redemptions and prepayments described in
Clauses (B) and (C) above shall be made pro rata among
the Holders of the Series A Securities based upon their
respective principal amounts held as of the date of the
Officer's Certificate given pursuant to Section 3.02
prior to such redemption or prepayment.
On or after March 1, 1998, the Series B Securities may
be redeemed, in whole or in part, upon notice given
pursuant to Section 3.02, at the following optional
redemption prices, together with accrued interest to
the date of redemption:
Optional
Twelve Months Beginning Redemption
July 1 Price
----------------------- ----------
1998. . . . . . . . . . . . . . . . . . . 105.750%
1999. . . . . . . . . . . . . . . . . . . 103.833
2000. . . . . . . . . . . . . . . . . . . 101.917
2001 and thereafter . . . . . . . . . . . 100.000%
PROVIDED that (A) no partial redemption of the
Securities will be permitted (except in connection with
Special Redemption or any redemption in connection with
the exercise of the outstanding purchase option for the
Watsonville, California Mortgaged Property or the
Issuer's Tomah, Wisconsin facility (to the extent such
facility remains a Mortgaged Property) as set forth in
clause (g) below) unless (i) the aggregate principal
amount of the Series A Securities then being redeemed,
if any, is more than $5,000,000, and the aggregate
principal amount of Series B Securities then being
redeemed, if any, is more than $25,000,000, and
(ii) the aggregate principal amount of the Series B
Securities Outstanding exceeds $25,000,000 (after
giving effect to such redemption) and (B) so long as
Section 9(a)(1) of the Investment Agreement concerning
optional redemptions is in effect, the Issuer shall
concurrently with any optional redemption of Series B
Securities, redeem the entire principal amount of
Series A Securities.
1.2 AMENDMENT TO SECTION 3.01(c). Section 3.01(c) of
the Indenture is hereby amended and supplemented to read in its
entirety as follows:
(c) Upon any redemption pursuant to
Section 3.01(b) (but excluding any offer made in
connection with an Asset Disposition as set forth in
Section 4.12(b) of this Indenture or as set forth in
Section 9(a)(4) of the Investment Agreement or any
Change in Control as set forth in Section 4.14 of this
Indenture, or any redemption in accordance with the
terms set forth in Section 4.27 of this Indenture or in
Section 9(a)(2) of the Investment Agreement, and also
excluding any redemption in connection with 3.01(e),
3.01(f) or 3.01(g), for which release provisions are
provided in such sections), 3.01(d) or 4.12(a)(ii)(B),
any required amortization or redemption pursuant to
Section 3.06, or any redemption required by
Sections 9(a)(1), (3) or (5) or Section 14(b)(2) of the
Investment Agreement of an Outstanding principal amount
of Securities in an amount equal to at least the
applicable Release Price for a Mortgaged Property or
Properties designated by the Issuer at the time of the
making of such redemption (which, in the case of a
redemption pursuant to Section 3.01(d), shall be the
Mortgaged Property that is the subject of the Major
Casualty or Condemnation Event, Total Taking or other
event specified in Section 3.01(d)), together with
accrued and unpaid interest thereon and the required
premium, if any (and the satisfaction of the conditions
set forth Section 3.01(h)), and subject, if and to the
extent required by TIA Section 314(d), to the receipt
by the Trustee from the Issuer of a certificate or
opinion of an Engineer, Appraiser or other expert as to
the fair market value of such Mortgaged Property, which
certificate or opinion shall state that in the opinion
of the Person making the same the proposed release will
not impair the security under this Indenture in
contravention of the provisions hereof, the Lien of the
Mortgage on such Mortgaged Property or Properties shall
be released, provided that no Default or Event of
Default has occurred and is continuing. Any such
release (other than a release made upon any redemption
pursuant to Section 3.01(d)) shall be subject to the
provisions of Section 8(a) of the Investment Agreement
regarding the approval and consent of the Initial
Investor to such release so long as such provisions
remain in effect.
1.3 AMENDMENT TO SECTION 4.27(b). Section 4.27(b) of
the Indenture is hereby amended and supplemented by replacing the
term "Appraised Value" both places it occurs in Section 4.27(b)
with the term "Release Value."
1.4 AMENDMENT TO EXHIBIT B. Exhibit B to the
Indenture is hereby amended and supplemented to read in its
entirety as set forth on Exhibit 1 attached hereto and
incorporated herein by this reference.
PART II
MISCELLANEOUS
2.1 DUE AUTHORIZATION; GOVERNMENTAL ACTION. The
Issuer is duly authorized under applicable law and its
organization documents to execute and deliver this First
Supplemental Indenture dated June 30, 1995. All corporate action
and governmental consents, authorizations and approvals necessary
or required therefor have been duly and effectively taken or
obtained.
2.2 RATIFICATION. Except as specifically set forth
herein, all of the terms of the Indenture, Mortgages, Security
Documents, 11.45% First Mortgage Bonds, Series A, due 2002, and
11 1/2% First Mortgage Bonds, Series B, due 2005, are hereby
ratified and confirmed and shall remain in full force and effect.
The execution and effectiveness of this First Supplemental
Indenture in and of itself shall not, except as expressly
provided herein, operate as a waiver of any power or right of any
Holder of any Security or the Trustee under the Indenture,
Mortgages, Security Documents or any other document delivered
pursuant thereto or constitute an amendment of or a waiver of any
future violation of any provision of any thereof.
2.3 COUNTERPARTS. This First Supplemental Indenture
may be executed and delivered in any number of counterparts, each
of which, when so executed and delivered, shall be deemed to be
an original and all of which taken together shall constitute but
one and the same instrument.
2.4 GOVERNING LAW. This First Supplemental Indenture
shall be governed and construed under the laws of the State of
New York.
2.5 SEVERABILITY CLAUSE. In case any provision of
this First Supplemental Indenture shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired
thereby.
2.6 SUCCESSORS. The agreements herein shall be
binding upon each of the parties and their respective successors
and assigns.
IN WITNESS WHEREOF, the parties hereto have duly
executed this First Supplemental Indenture effective as of
June 29, 1995. IN WITNESS WHEREOF, AMERICOLD CORPORATION has
caused this First Supplemental Indenture to be signed and
acknowledged by its Vice President, and its corporate seal to be
affixed hereunto, and the same to be attested by its Assistant
Secretary; and SHAWMUT BANK CONNECTICUT, NATIONAL ASSOCIATION has
caused this First Supplemental Indenture to be signed and
delivered by one of its Vice Presidents and its corporate seal to
be affixed hereunto, and the same to be attested by one of its
Authorized Persons, all as of June 30, 1995.
AMERICOLD CORPORATION
By /s/ Joel M. Smith
---------------------------------
Printed Name: Joel M. Smith
---------------------
Title SR VP & CFO
------------------------------
ATTEST:
/s/ Lon V. Leneve
- -----------------------------
Name: Lon V. Leneve
------------------------
Title: Secretary
[SEAL]
SHAWMUT BANK CONNECTICUT, NATIONAL
ASSOCIATION, as Trustee
By /S/ Pablo de la Canal
--------------------------------
Printed Name Pablo de la Canal
-----------------------
Title Corporate Trust Officer
------------------------------
ATTEST:
/s/ Eileen D. Pepe
- -----------------------------
Name: Eileen D. Pepe
------------------------
Title: Trustee Administrator
-----------------------
[SEAL]
STATE OF OREGON )
) ss.:
COUNTY OF MULTNOMAH )
On this 30th day of June, 1995, before me personally
came JOEL M. SMITH, to me known, and who, being by me duly sworn,
did depose and say that he resides at LAKE OSWEGO, that he is the
Senior Vice President of AMERICOLD CORPORATION, one of the
corporations described in and which executed the above
instrument; that he knows the corporate seal of said corporation;
that one of the seals affixed to the said instrument is such
corporate seal; that it was so affixed by authority of the Board
of Directors of said corporation; and that he signed his name
thereto by like authority.
IN WITNESS WHEREOF, I have hereunto set my hand and
affixed my official seal the day and year in this certificate
first above written.
[NOTARIAL SEAL] /s/ Pamela Decker
---------------------------------
Name:
Commission Expires: 10-10-98
-------------
STATE OF CONNECTICUT )
) ss.: Hartford
COUNTY OF HARTFORD )
On this 30th day of June, 1995, before me, KAREN R. FELT,
the undersigned officer, personally appeared PABLO DE LA CANAL,
who acknowledged him/herself to be CORPORATE TRUST OFFICER of
Shawmut Bank Connecticut, National Association, a national
banking association, and that he/she, as such officer, being
authorized so to do, executed the foregoing instrument for the
purpose therein contained, by signing the name of the association
by him/herself as such officer, and as his/her free act and deed.
IN WITNESS WHEREOF, I hereunto set my hand and official
seal.
/s/ Karen R. Felt
-----------------------------------
Notary Public
My commission expires: 02/28/99
(SEAL)
<PAGE>
<PAGE>
EXHIBIT 1
<TABLE><CAPTION>
AMERICOLD CORPORATION
Exhibit B - Redemption of Bonds
Mortgaged Property June 30, 1995
- ------------------ ---------------------------------------
Appraised Initial Release
Value Value Release %
--------- -------------- ---------
<S> <S> <S> <S>
Los Angeles $12,665,000 $ 8,968,752 70.8%
Turlock I 9,920,000 7,024,873 70.8%
Turlock II 12,025,000 8,515,534 70.8%
Watsonville 15,625,000 11,064,883 70.8%
Denver 10,850,000 7,683,455 70.8%
Nampa 16,800,000 11,896,962 70.8%
Brooks 9,550,000 6,762,857 70.8%
Hermiston 13,650,000 9,666,282 70.8%
Hillsboro 0 0
Portland 15,800,000 11,188,810 70.8%
Salem 25,275,000 17,898,555 70.8%
Woodburn 17,775,000 12,587,411 70.8%
Clearfield 14,250,000 10,091,173 70.8%
Burlington 12,000,000 8,497,830 70.8%
Connell 0 0
Moses Lake 18,000,000 12,746,745 70.8%
Walla Walla 5,900,000 4,178,100 70.8%
Wallula 4,500,000 3,186,686 70.8%
Bartow 1,730,000 1,225,104 70.8%
Bettenforf 10,500,000 7,435,601 70.8%
Fort Dodge 11,100,000 7,860,493 70.8%
Kansas City 41,558,596 29,429,824 70.8%
Boston 5,960,000 4,220,589 70.8%
Gloucester (E. Main St.) 9,000,000 6,373,373 70.8%
Gloucester (Railroad Ave) 1,080,000 764,805 70.8%
Gloucester (Rogers St.) 10,520,000 7,449,764 70.8%
Gloucester (Rowe Sq.) 11,500,000 8,143,754 70.8%
Watertown 7,700,000 5,452,774 70.8%
Fogelsville 30,700,000 21,740,282 70.8%
Fogelsville Addition 9,340,000 6,614,145 70.8%
Murfreesboro 6,500,000 4,602,991 70.8%
Plover 24,700,000 17,491,367 70.8%
Tomah:
Tomah Addition 6,450,000 4,567,584 70.8%
Substitute for $7,000,000 6,394,956 4,528,604 70.8%
---------- -----------
Total $409,318,552 $289,859,963 70.8%
Cash Collateral Account 4,767,652
Offering Proceeds Account 22,527,575
-----------
Total $317,155,190
Appraised Value "Bank":
Addition of tomah $ 7,050,000
Release of Cash Collateral (7,000,000)
Fogelsville Addition 9,340,000
Release of Cash Collateral (5,050,000)
Offering Proceeds Used (1,064,217)
Release of Outlot One (655,044)
Release of Hillsboro (1,430,000)
Tomah Addition 6,450,000
Offering Proceeds Used (4,168,285)
------------
$ 3,472,454
Offering Proceeds Used:
Fogelsville Addition $ 5,808,787
Substitute Cash Collateral (5,050,000)
Tomah Addition 2,963,638
------------
$ 3,722,425
Ratio Adjustment Calculation:
Original Release Values $300,000,000
Plus Offering Proceeds Used 3,722,425
Less Release Price Adjust. (9,159,335)
------------
$294,563,090
Original Appraised Values $420,755,000
Plus Offering Proceeds Used 5,232,502
Plus Appraised Value "Bank" 3,472,454
Less Release Price Adjust. (13,500,000)
------------
$415,959,956
Release Val./Appraised Val. 70.8%
</TABLE>
c:\dms\004787\00028\0086420.Wp
07/14/95 (7:25am)
<PAGE>
- ----------------------------------------------------------------
AMERICOLD CORPORATION,
as Issuer,
and
UNITED STATES TRUST COMPANY OF NEW YORK,
as Trustee
____________________________
INDENTURE
Dated as of June 30, 1995
____________________________
15% Senior Subordinated Debentures, Due 2007
- ----------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS<F1>
Page
ARTICLE ONE Definitions
SECTION 1.01. Definitions
SECTION 1.02. Incorporation by Reference of Trust
Indenture Act
SECTION 1.03. Rules of Construction
ARTICLE TWO Issuance, Description, Executionand Exchange of
Securities
SECTION 2.01. Designation, Amount and Issue of Securities
SECTION 2.02. Authentication and Delivery of Securities
SECTION 2.03. Form of Securities and Trustee's
Certificate of Authentication Generally
SECTION 2.04. Denomination and Date of Securities;
Payment of Principal and Interest
SECTION 2.05. Execution of Securities
SECTION 2.06. Exchange and Registration of Transfer of
Securities
SECTION 2.07. Mutilated, Destroyed, Lost or Stolen
Securities
SECTION 2.08. Cancellation of Surrendered Securities
SECTION 2.09. Temporary Securities
SECTION 2.10. Foreign Holder Certification
Section 2.11. CUSIP Numbers
ARTICLE THREE Redemption of Securities
SECTION 3.01. Optional Redemption
Section 3.02. Notice of Redemption
SECTION 3.03. Procedures for Redemption
SECTION 3.04. Selection of Securities To Be Redeemed
SECTION 3.05. When Securities Called for Redemption
Become Due and Payable
ARTICLE FOUR Particular Covenants, Representationsand
Warranties of the Issuer
SECTION 4.01. Validity of Securities
SECTION 4.02. Payment of Principal of, and Interest on
Securities
SECTION 4.03. SEC Reports
SECTION 4.04. Limitation on Restricted Payments
SECTION 4.05. Limitation on Senior Subordinated Debt
SECTION 4.06. Limitation on Debt
SECTION 4.07. Limitation on Subsidiary Debt and
Preferred Stock
- ---------------------
<F1> This Table of Contents shall not, for any purpose, be deemed
to be part of the Indenture.
SECTION 4.08. Limitation on Restrictions on Distributions
from Subsidiaries
SECTION 4.09. Limitation on Sales of Assets and
Subsidiary Stock
SECTION 4.10. Limitation on Transactions with Affiliates
SECTION 4.11. Change of Control
SECTION 4.12. Appointment of Agents
SECTION 4.13. Paying Agents to Hold Funds in Trust
SECTION 4.14. Appointment of Trustee by Issuer
SECTION 4.15. Availability of Information
SECTION 4.16. Books of Account; Inspection by the Trustee;
Notices; Statements as to Compliance
Section 4.17 Payment of Taxes and Other Claims
SECTION 4.18 Corporate Existence and Rights
SECTION 4.19. Maintenance of Properties
SECTION 4.20. Maintenance of Insurance
SECTION 4.21. Certificate and Opinion as to Conditions
Precedent
SECTION 4.22. Statements Required in Certificate or
Opinion
SECTION 4.23. Further Instruments and Acts
ARTICLE FIVE Events of Default and Remedies
SECTION 5.01. Events of Default
SECTION 5.02. Acceleration
SECTION 5.03. Other Remedies
SECTION 5.04. Waiver of Past Defaults
SECTION 5.05. Control by Majority
SECTION 5.06. Limitation on Suits
SECTION 5.07. Rights of Holders To Receive Payment
SECTION 5.08. Collection Suit by Trustee
SECTION 5.09. Trustee May File Proofs of Claim
SECTION 5.10. Priorities
SECTION 5.11. Undertaking for Costs
SECTION 5.12. Waiver of Stay or Extension Laws
ARTICLE SIX Discharge of Indenture; Defeasance
SECTION 6.01. Discharge of Liability on Securities;
Defeasance
SECTION 6.02. Conditions to Defeasance
SECTION 6.03. Application of Trust Money
SECTION 6.04. Repayment to Issuer
SECTION 6.05. Indemnity for Government Obligations
SECTION 6.06. Reinstatement
ARTICLE SEVEN Concerning the Trustee
SECTION 7.01. Duties of Trustee
SECTION 7.02. Rights of Trustee
SECTION 7.03. Individual Rights of Trustee
SECTION 7.04. Trustee's Disclaimer
SECTION 7.05. Notice of Defaults
SECTION 7.06. Reports by Trustee to Holders
SECTION 7.07. Compensation and Indemnity
SECTION 7.08. Replacement of Trustee
SECTION 7.09. Successor Trustee by Merger
SECTION 7.10. Eligibility; Disqualification
SECTION 7.11. Preferential Collection of Claims Against
Corporation
ARTICLE EIGHT Amendments, Supplements and Waivers
SECTION 8.01. Without Consent of Holders
SECTION 8.02. With Consent of Holders
SECTION 8.03. Compliance with Trust Indenture Act
SECTION 8.04. Revocation and Effect of Consents
SECTION 8.05. Notation on or Exchange of Securities
SECTION 8.06. Trustee To Sign Amendments
SECTION 8.07. Waiver of Compliance by Holders
ARTICLE NINE Successor Company
SECTION 9.01. When Issuer May Merge or Transfer Assets
ARTICLE TEN Subordination
SECTION 10.01. Agreement To Subordinate
SECTION 10.02. Certain Definitions
SECTION 10.03. Liquidation, Dissolution, Bankruptcy
SECTION 10.04. Default on Superior Debt
SECTION 10.05. Acceleration of Payment of Securities
SECTION 10.06. When Distribution Must Be Paid Over
SECTION 10.07. Subrogation
SECTION 10.08. Relative Rights
SECTION 10.09. Subordination May Not Be Impaired by Issuer
SECTION 10.10 Rights of Trustee and Paying Agent
SECTION 10.11. Distribution or Notice to Representative
SECTION 10.12. Article 10 Not To Prevent Events of
Default or Limit Right to Accelerate
SECTION 10.13. Trust Moneys Not Subordinated
SECTION 10.14. Trustee Entitled To Rely
SECTION 10.15. Trustee to Effectuate Subordination
SECTION 10.16. Trustee Not Charged with Knowledge of
Prohibition
SECTION 10.17. Rights of Trustee as Holder of Superior
Debt
SECTION 10.18. Trustee Not Fiduciary for Holders of
Superior Debt
SECTION 10.19. Article Applying to Paying Agents
SECTION 10.20. Reliance by Holders of Superior Debt on
Subordination Provisions
ARTICLE ELEVEN Miscellaneous Provisions
SECTION 11.01. Trust Indenture Act Controls
SECTION 11.02. Communication by Holders with Other Holders
SECTION 11.03. Notices
SECTION 11.04. When Treasury Securities Disregarded
SECTION 11.05. Rules by Trustee, Paying Agent and
Security Registrar
SECTION 11.06. Legal Holidays
SECTION 11.07. Successors
SECTION 11.08. Multiple Originals
SECTION 11.09. Separability Clause
SECTION 11.10. Governing Law
SECTION 11.11. Table of Contents; Headings
ACKNOWLEDGMENTS
EXHIBIT A - Form of Security
<PAGE>
INDENTURE, dated as of June 30, 1995, by and
between AMERICOLD CORPORATION, an Oregon corporation (the
"Issuer"), and UNITED STATES TRUST COMPANY OF NEW YORK, a New
York banking corporation, as Trustee hereunder (the "Trustee").
R E C I T A L S
A. On May 9, 1995, the Issuer filed for protec-
tion under Chapter 11 of Title 11 of the United States Code in
the United States Bankruptcy Court for the District of Oregon.
On June 20, 1995, the United States Bankruptcy Court for the
District of Oregon entered an order confirming the Plan of
Reorganization, dated as of May 9, 1995, of the Issuer in Case
No. 395-33058elp11 (the "Plan"), which provides for the issuance
of the Securities (as hereinafter defined).
B. The Issuer has duly authorized the creation
of an issue of 15% Senior Subordinated Debentures, due 2007 (the
"Securities") of substantially the tenor and amount hereinafter
set forth, and to provide therefor the Issuer has duly authorized
the execution and delivery of this Indenture. All things
necessary to make the Securities, when executed by the Issuer and
authenticated and delivered hereunder and duly issued by the
Issuer, the valid obligations of the Issuer, and to make this
Indenture a valid agreement of the Issuer, in accordance with
their and its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH: For
and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and
agreed, for the equal and proportionate benefit of all Holders,
as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.01. DEFINITIONS. The terms defined in
this Section (except as herein otherwise expressly provided or
unless the context otherwise requires), for all purposes of this
Indenture and of any indenture supplemental hereto, shall have
the respective meanings specified in this Section.
AFFILIATE: The term "Affiliate" means with re-
spect to any Person, (i) any other Person (or group of Persons
acting in concert in respect of such specified Person) which,
directly or indirectly, is in control of, is controlled by or is
under common control with such specified Person or (ii) any other
Person who is a director, executive officer or general partner
(a) of such specified Person, (b) of any Subsidiary of such
specified Person or (c) of any Person described in clause (i)
above. For purposes of this definition, control of a Person
means the power, direct or indirect, to direct or cause the
direction of the management and policies of such Person, whether
by contract or otherwise; and the terms "control" and
"controlled" have meanings correlative to the foregoing;
PROVIDED, HOWEVER, that a Person shall not be deemed to be an
Affiliate of another Person solely as a result of a warehouse
management contract entered into between such Persons in the
ordinary course of business.
ASSET DISPOSITION: The term "Asset Disposition"
means any sale, lease, transfer or other disposition (or series
of related sales, leases, transfers or dispositions) of shares of
Capital Stock of a Subsidiary (other than directors' qualifying
shares), property or other assets (each referred to for the
purposes of this definition as a "disposition") by the Issuer or
any of its Subsidiaries, other than (i) a disposition by a
Subsidiary to the Issuer or by the Issuer or a Subsidiary to a
Wholly Owned Subsidiary, (ii) a disposition of property or assets
at fair market value in the ordinary course of business, (iii) a
disposition of obsolete or worn out assets in the ordinary course
of business, (iv) a disposition subject to and made in accordance
with Section 3.01 of the First Mortgage Bonds Indenture, (v) a
disposition subject to Section 4.04, or (vi) a sale-and-leaseback
transaction pursuant to which either (x) the lease in such sale-
and-leaseback transaction is for a period, including renewal
rights, of not in excess of three years or (y) the Issuer could
incur Attributable Debt subject to Section 4.06.
ATTRIBUTABLE DEBT: The term "Attributable Debt"
in respect of a sale-and-leaseback transaction means, as at the
time of determination, the present value (discounted at the
interest rate borne by the Series B Bonds compounded annually) of
the total obligations of the lessee for rental payments during
the remaining term of the lease included in such arrangement
(including any period for which such lease has been extended).
AVERAGE LIFE: The term "Average Life" means, as
of the date of determination, with respect to any Debt or
Preferred Stock, the quotient obtained by dividing (i) the sum of
the products of the numbers of years from the date of
determination to the dates of each successive scheduled principal
payment of such Debt or redemption payment on such Preferred
Stock multiplied by the amount of such payment by (ii) the sum of
all such payments.
BANKRUPTCY LAW: The term "Bankruptcy Law" means
Title 11, United States Code, or any similar federal or state law
for the relief of debtors. The term "Custodian" means any
receiver, trustee, assignee, liquidator, custodian or similar
official under any Bankruptcy Law.
BOARD OF DIRECTORS: The term "Board of
Directors" means the Board of Directors of the Issuer or any
committee thereof duly authorized to act on behalf of such Board.
BOARD RESOLUTION: The term "Board Resolution"
means a copy of a resolution certified by the Secretary or an
Assistant Secretary of the Issuer to have been duly adopted by
the Board of Directors of the Issuer and to be in full force and
effect on the date of such certification, and delivered to the
Trustee.
BOND TRUSTEE: The term "Bond Trustee" means the
trustee under the First Mortgage Bonds Indenture.
BUSINESS DAY: The term "Business Day" means each
day which is not a Legal Holiday.
CAPITAL LEASE OBLIGATION: The term "Capital
Lease Obligation" of a Person means any obligation which is re-
quired to be classified and accounted for as a capital lease on
the face of a balance sheet of such Person prepared in accordance
with generally accepted accounting principles; the amount of such
obligation shall be the capitalized amount thereof, determined in
accordance with generally accepted accounting principles; and the
Stated Maturity thereof shall be the date of the last payment of
rent or any other amount due under such lease prior to the first
date upon which such lease may be terminated by the lessee with-
out payment of a penalty.
CAPITAL STOCK: The term "Capital Stock" means
any and all shares, interests, rights to purchase, warrants,
options, participations or other equivalents of or interests in
(however designated) corporate stock, including any Preferred
Stock.
CASH: The term "Cash" means coin or currency of
the United States government.
CHANGE OF CONTROL: The term "Change of Control"
means the occurrence of any of the following events:
(i) prior to the earlier to occur of (A) the
first public offering (which, for purposes of
this definition, shall mean the sale of shares of
common stock of the relevant entity pursuant to
an effective registration statement under the
Securities Act that covers (together with any
such prior effective registrations) not less than
25% of the outstanding shares of common stock of
such entity on a fully diluted basis after giving
effect to all such registrations) of common stock
of Parent or (B) the first public offering of
common stock of the Issuer, the Permitted Holders
cease to be the "beneficial owner" (as defined in
Rules 13d-3 and 13d-5 under the Exchange Act,
except that a Person shall be deemed to have
beneficial ownership of all shares that any such
Person has the right to acquire, whether such
right is exercisable immediately or only after
the passage of time), directly or indirectly, of
a majority in the aggregate of the total voting
power of the Voting Stock of the Issuer, whether
as a result of issuance of securities of the
Issuer, any merger, consolidation, liquidation or
dissolution of the Issuer, any direct or indirect
transfer of securities by Parent or otherwise
(for purposes of this clause (i) and clause (ii)
below, the Permitted Holders shall be deemed to
beneficially own any Voting Stock of a
corporation (the "specified corporation") held by
any other corporation (the "parent corporation")
so long as the Permitted Holders beneficially own
(as so defined), directly or indirectly, in the
aggregate a majority of the voting power of the
Voting Stock of the parent corporation);
(ii) any "Person" (as such term is used in
Sections 13(d) and 14(d) of the Exchange Act),
other than one or more Permitted Holders, is or
becomes the beneficial owner (as defined in
clause (i) above), directly or indirectly, of
more than 30% of the total voting power of the
Voting Stock of the Issuer; PROVIDED, HOWEVER,
that the Permitted Holders beneficially own (as
so defined), directly or indirectly, in the
aggregate a lesser percentage of the total voting
power of the Voting Stock of the Issuer than such
other Person and do not have the right or ability
by voting power, contract or otherwise to elect
or designate for election a majority of the Board
of Directors of the Issuer (for the purposes of
this clause (ii), such other Person shall be
deemed to beneficially own any Voting Stock of a
specified corporation held by a parent
corporation, if such other Person "beneficially
owns" (as so defined), directly or indirectly,
more than 30% of the voting power of the Voting
Stock of such parent corporation and the
Permitted Holders "beneficially own" (as so
defined), directly or indirectly, in the
aggregate a lesser percentage of the voting power
of the Voting Stock of such parent corporation
and do not have the right or ability by voting
power, contract or otherwise to elect or
designate for election a majority of the Board of
Directors of such parent corporation);
(iii) during any period of two consecutive
years, individuals who at the beginning of such
period constituted the Board of Directors of the
Issuer (together with any new directors whose
election by such Board of Directors or whose
nomination for election by the shareholders of
the Issuer was approved by a vote of 66 2/3% of
the directors of the Issuer then still in office
who were either directors at the beginning of
such period or whose election or nomination for
election was previously so approved) cease for
any reason to constitute a majority of the Board
of Directors of the Issuer then in office; or
(iv) the Issuer consolidates with or merges
with or into any other Person or conveys,
transfers or leases all or substantially all of
its assets to any Person or any Person
consolidates with or merges into the Issuer, in
either event pursuant to a transaction in which
either (A) the outstanding Voting Stock of the
Issuer is changed into or exchanged for Cash,
securities or other property (excluding, however,
any such transaction where the outstanding Voting
Stock of the Issuer is changed into or exchanged
for Voting Stock of the surviving or transferee
corporation which is neither Redeemable Stock nor
Exchangeable Stock) or (B) the holders of the
Voting Stock of the Issuer immediately prior to
such transaction, together with Kelso & Company
and Affiliates of Kelso & Company which are
either controlled by or under common control with
Kelso & Company, own, directly or indirectly, in
the aggregate, less than 50.01% of the Voting
Stock of the surviving Person immediately after
such transaction.
CONSOLIDATED EBITDA COVERAGE RATIO: The term
"Consolidated EBITDA Coverage Ratio" as determined on any date
means the ratio of (i) the aggregate amount of Consolidated Net
Income plus (to the extent deducted in calculating Consolidated
Net Income) Consolidated Interest Expense, income taxes,
depreciation expense, amortization expense, non-cash write-offs
of deferred financing costs and non-cash deductions for
contributions to the ESOP (but without giving any effect to any
extraordinary gain or loss) for the Reference Period to (ii) the
aggregate amount of Consolidated Interest Expense for the
Reference Period.
CONSOLIDATED INTEREST EXPENSE: The term
"Consolidated Interest Expense" means, for any period, the total
interest expense of the Issuer and its consolidated Subsidiaries,
including (i) interest expense attributable to capital leases,
(ii) amortization of debt discount and debt issuance cost,
(iii) capitalized interest, (iv) noncash interest payments,
(v) commissions, discounts and other fees and charges owed with
respect to letters of credit and bankers' acceptance financing,
(vi) net costs under Interest Rate Protection Agreements
(including amortization of fees), (vii) Preferred Stock dividends
in respect of all Preferred Stock held by Persons other than the
Issuer or a Wholly Owned Subsidiary, (viii) interest incurred in
connection with investments in discontinued operations and
(ix) interest actually paid by the Issuer or any of its
consolidated Subsidiaries under any guarantee of Debt or any
other obligation of any other Person.
CONSOLIDATED NET INCOME: The term "Consolidated
Net Income" means, for any period, the net income of the Issuer
and its consolidated Subsidiaries determined on a consolidated
basis in accordance with generally accepted accounting
principles; provided, however, that there shall not be included
in such Consolidated Net Income:
(i) any net income of any Person if such Person
is not a Subsidiary, except that (A) the Issuer's
equity in the net income of any such Person for
such period shall be included in such
Consolidated Net Income up to the aggregate
amount of Cash actually distributed by such
Person during such period to the Issuer or a
Subsidiary as a dividend or other distribution
(subject, in the case of a dividend or other
distribution to a Subsidiary, to the limitations
contained in clause (iii) below) and (B) the
Issuer's equity in a net loss of any such Person
for such period shall be included in determining
such Consolidated Net Income;
(ii) any net income of any Person acquired
by the Issuer or a Subsidiary in a pooling of
interests transaction for any period prior to the
date of such acquisition;
(iii) any net income of any Subsidiary if
such Subsidiary is subject to restrictions,
directly or indirectly, on the payment of
dividends or the making of distributions by such
Subsidiary, directly or indirectly, to the
Issuer, except that (A) the Issuer's equity in
the net income of any such Subsidiary for such
period shall be included in such Consolidated Net
Income up to the aggregate amount of Cash
actually distributed by such Subsidiary during
such period to the Issuer or another Subsidiary
as a dividend or other distribution (subject, in
the case of a dividend or other distribution to
another Subsidiary, to the limitation contained
in this clause) and (B) the Issuer's equity in a
net loss of any such Subsidiary for such period
shall be included in determining such Consoli-
dated Net Income;
(iv) any gain (but not loss) realized upon
the sale or other disposition of any property,
plant or equipment of the Issuer or its
consolidated Subsidiaries (including pursuant to
any sale and leaseback arrangement) which is not
sold or otherwise disposed of in the ordinary
course of business and any gain (but not loss)
realized upon the sale or other disposition of
any Capital Stock of any Person; or
(v) the cumulative non-cash effect of a change
in accounting principles, including (A) the
cumulative or one-time non-cash charges
associated with the implementation of SFAS 106 by
the Issuer with respect to services rendered by
employees in periods prior to its implementation,
but excluding any effects of such implementation
with respect to services rendered in periods
following such implementation and (B) any
cumulative or one-time non-cash charges
associated with the implementation of SFAS 109.
CONSOLIDATED NET TANGIBLE ASSETS: The term "Con-
solidated Net Tangible Assets" means the total assets shown on
the balance sheet of the Issuer and its consolidated
Subsidiaries, determined on a consolidated basis using generally
accepted accounting principles, as of any date selected by the
Issuer not more than 90 days prior to the taking of any action
for the purpose of which the determination is being made, less
(i) all current liabilities and minority interests and
(ii) goodwill and other intangibles.
CONSOLIDATED NET WORTH: The term "Consolidated
Net Worth" of any Person means the total amounts shown on the
balance sheet of such Person and its consolidated Subsidiaries,
determined on a consolidated basis in accordance with generally
accepted accounting principles, as of the end of the most recent
fiscal quarter of such Person ending at least 45 days prior to
the taking of any action for the purpose of which the
determination is being made, as (i) the par or stated value of
all outstanding Capital Stock of such Person plus (ii) paid-in
capital or capital surplus relating to such Capital Stock plus
(iii) any retained earnings or earned surplus less (A) any
accumulated deficit, (B) any amounts attributable to Redeemable
Stock and (C) any amounts attributable to Exchangeable Stock, and
excluding amounts attributable to cumulative or one-time non-cash
charges associated with the implementation of SFAS 106 and 109.
CORPORATE TRUST OFFICE: The term "Corporate
Trust Office" means the office of the Trustee at which at any
particular time its corporate trust business shall be principally
administered.
DEBT: The term "Debt" of any Person means, with-
out duplication:
(i) the principal of and premium (if any) in
respect of (A) indebtedness of such Person for
money borrowed and (B) indebtedness evidenced by
the Securities, the First Mortgage Bonds, notes,
debentures, bonds or other similar instruments
for the payment of which such Person is
responsible or liable;
(ii) all Capital Lease Obligations of such
Person;
(iii) all obligations of such Person issued
or assumed as the deferred purchase price of
property, all conditional sale obligations of
such Person and all obligations of such Person
under any title retention agreement (but
excluding trade accounts payable arising in the
ordinary course of business);
(iv) all obligations of such Person for the
reimbursement of any obligor on any letter of
credit, banker's acceptance or similar credit
transaction (other than obligations with respect
to letters of credit securing obligations (other
than obligations described in (i) through (iii)
above) entered into in the ordinary course of
business of such Person to the extent such
letters of credit are not drawn upon or, if and
to the extent drawn upon, such drawing is reim-
bursed no later than the third Business Day
following receipt by such Person of a demand for
reimbursement following payment on the letter of
credit);
(v) the amount of all obligations of such Person
with respect to the redemption, repayment or
other repurchase of any Redeemable Stock or
Exchangeable Stock;
(vi) all obligations of the type referred to
in clauses (i) through (v) of other Persons and
all dividends of other Persons for the payment of
which, in either case, such Person is responsible
or liable as obligor, guarantor or otherwise;
PROVIDED, HOWEVER that to the extent such Person
is responsible or liable only for the obligation
of another Person to pay interest on Debt, then a
designated percentage of such interest or the
amount of the underlying Debt, as the case may
be, shall be deemed Debt of the referent Person
and the amount of such deemed Debt of the
referent Person shall be equal to the lesser of
(A) the aggregate principal amount of the
underlying Debt or (B) the aggregate amount of
interest due or payable over the term of such
Debt (or the term of the Securities, if shorter)
determined based upon the rate of interest in
effect as of the date of such determination,
together with the maximum prepayment premium or
penalty which could become due or payable with
respect to such Debt if such Debt was prepaid
prior to the maturity of the Securities;
(vii) all obligations of the type referred to
in clauses (i) through (vi) of other Persons
secured by any Lien on any property or asset of
such Person (whether or not such obligation is
assumed by such Person), the amount of such
obligation being deemed to be the lesser of the
value of such property or assets or the amount of
the obligation so secured; and
(viii) all obligations of such Person
consisting of modifications, renewals,
extensions, replacements and refundings of any
obligations described in clause (i), (ii), (iii),
(iv), (v), (vi) or (vii).
DEFAULT: The term "Default" means any condition
or event which constitutes or which, after notice or lapse of
time or both, would constitute an Event of Default hereunder.
DEFAULT RATE: The term "Default Rate" has the
respective meanings specified in the forms of Securities included
in this Indenture.
ESOP: The term "ESOP" means the Issuer's
Employee Stock Ownership Plan.
ESOP PREFERRED STOCK: The term "ESOP Preferred
Stock" means shares of Preferred Stock of the Issuer held by the
ESOP.
EVENT OF DEFAULT: The term "Event of Default"
means any event specified as such in Section 5.01, continued for
the period of time, if any, and after the giving of notice, if
any, therein designated.
EXCHANGE ACT: The term "Exchange Act" means the
Securities Exchange Act of 1934, as amended.
EXCHANGEABLE STOCK: The term "Exchangeable
Stock" means any Capital Stock which is exchangeable or
convertible into another security (other than Capital Stock of
the Issuer which is neither Exchangeable Stock nor Redeemable
Stock).
FIRST MORTGAGE BONDS: The term "First Mortgage
Bonds" means the Issuer's First Mortgage Bonds issued under the
First Mortgage Bonds Indenture.
FIRST MORTGAGE BONDS INDENTURE: The term "First
Mortgage Bonds Indenture" means the Amended and Restated
Indenture, dated as of March 9, 1993, between the Issuer and
Shawmut Bank Connecticut, National Association.
HOLDER; SECURITYHOLDER: The term "Holder" of a
Security and the term "Securityholder" means the Person in whose
name at the time such Security is registered on the Security
Register kept for that purpose in accordance with the terms
hereof.
INDENTURE: The term "Indenture" means this
Indenture as originally executed or as it may from time to time
be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof.
INDEPENDENT ACCOUNTANTS: The term "Independent
Accountants" means a firm of independent public accountants
meeting the requirements therefor under the Securities Act and
rules and regulations of the SEC, which shall be KPMG Peat
Marwick or another firm of independent certified public
accountants of nationally recognized standing selected by the
Issuer and reasonably satisfactory to the Trustee.
INTEREST PAYMENT: The term "Interest Payment"
has the respective meanings specified in the forms of Securities
included in this Indenture.
INTEREST PERIOD: The term "Interest Period" has
the respective meanings specified in the forms of Securities
included in this Indenture.
INTEREST RATE PROTECTION AGREEMENT: The term
"Interest Rate Protection Agreement" means any interest rate swap
agreement, interest rate cap agreement or other financial
agreement or arrangement designed to protect the Issuer or any
Subsidiary against fluctuations in interest rates.
INVESTMENT: The term "Investment" in any Person
means any loan or advance to, any acquisition of Capital Stock,
equity interest, obligation or other security of, or capital
contribution or other investment in, such Person.
ISSUE: The term "issue" means issue, assume,
guarantee, incur or otherwise become liable for; PROVIDED,
HOWEVER, that any Debt or Capital Stock of a Person existing at
the time such Person becomes a Subsidiary (whether by merger,
consolidation, acquisition or otherwise) shall be deemed to be
issued by such Subsidiary at the time it becomes a Subsidiary.
ISSUE DATE: The term "Issue Date" means,
June 30, 1995.
ISSUER: The term "Issuer" means the party named
as such in this Indenture until a successor replaces it, and
thereafter, means the successor, and, for purposes of any
provision contained herein and required by the TIA, each other
obligor on the Securities.
ISSUER ORDER: The term "Issuer Order" means a
written order signed in the name of the Issuer by the Chairman of
the Board, the President or any Vice President, and by the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary of the Issuer, and delivered to the Trustee.
LEGAL HOLIDAY: The term "Legal Holiday" has the
meaning set forth in Section 11.06.
LIEN: The term "Lien" means any mortgage,
pledge, security interest, conditional sale or other title
retention agreement, constructive trust or other similar lien.
MATURITY DATE: The term "Maturity Date" means,
May 1, 2007.
NET AVAILABLE CASH: The term "Net Available
Cash" from an Asset Disposition means Cash payments received
(including any Cash payments received by way of deferred payment
of principal pursuant to a note or installment receivable or
otherwise, but only as and when received, but excluding any other
consideration received in the form of assumption by the acquiring
Person of Debt or other obligations relating to such properties
or assets or received in any other non-Cash form) therefrom, in
each case net of all legal, title and recording tax expenses,
commissions and other fees and expenses incurred, and all
federal, state, provincial, foreign and local taxes required to
be accrued as a liability under generally accepted accounting
principles, as a consequence of such Asset Disposition, and in
each case net of all payments made on any Debt which is secured
by any assets subject to such Asset Disposition, in accordance
with the terms of any Lien upon or other security agreement of
any kind with respect to such assets, or which must by its terms,
or in order to obtain a necessary consent to such Asset
Disposition, or by applicable law be repaid out of the proceeds
from such Asset Disposition, and net of all distributions and
other payments required to be made and actually made to minority
interest holders in Subsidiaries or joint ventures as a result of
such Asset Disposition.
NET CASH PROCEEDS: The term "Net Cash Proceeds",
with respect to any issuance or sale of Capital Stock, means the
Cash proceeds of such issuance or sale net of attorneys' fees,
accountants' fees, underwriters' or placement agents' fees,
discounts or commissions and brokerage, consultant and other fees
actually incurred in connection with such issuance or sale and
net of taxes paid or payable as a result thereof.
NEW CREDIT AGREEMENT: The term "New Credit
Agreement" means the Second Amended and Restated Credit Agree-
ment, dated June 19, 1995, between the Issuer and United States
National Bank of Oregon.
NON-CONVERTIBLE CAPITAL STOCK: The term "Non-
Convertible Capital Stock" means, with respect to any corpora-
tion, any non-convertible Capital Stock of such corporation and
any Capital Stock of such corporation convertible solely into
non-convertible common stock of such corporation; PROVIDED,
HOWEVER, that Non-Convertible Capital Stock shall not include any
Redeemable Stock or Exchangeable Stock.
NON-RECOURSE DEBT: The term "Non-Recourse Debt"
means Debt or that portion of Debt of a Subsidiary as to which
(i) neither the Issuer nor any Subsidiary (other than a Non-
Recourse Subsidiary) (A) provides credit support or (B) is
directly or indirectly liable and (ii) no default with respect to
such Debt (including any right which the holders thereof may have
to take enforcement action against such Subsidiary) would permit
(upon notice, lapse of time or both) any holder of any other Debt
of the Issuer or any other Subsidiary to declare a default on
such other Debt or cause the payment thereof to be accelerated or
payable prior to its Stated Maturity.
NON-RECOURSE SUBSIDIARY: The term "Non-Recourse
Subsidiary" means a Subsidiary organized or acquired after the
date of this Indenture which has no Debt other than Non-Recourse
Debt and which has been designated as a Non-Recourse Subsidiary
by the Board of Directors of the Issuer, as provided below. The
Board of Directors of the Issuer may designate any Subsidiary
organized or acquired after the date of this Indenture as a Non-
Recourse Subsidiary, PROVIDED, HOWEVER, that, notwithstanding the
foregoing, no Subsidiary as of the date of this Indenture shall
be reclassified as a Non-Recourse Subsidiary or become a
Subsidiary of a Non-Recourse Subsidiary. The Trustee shall be
given prompt notice by the Issuer of each resolution adopted by
the Board of Directors under this provision, together with a
certified copy of each such resolution adopted and an Officers'
Certificate certifying that such designation complies with the
foregoing conditions.
OBLIGATIONS: The term "Obligations" means
(a) the due and punctual payment of principal of, and interest on
the Securities, (b) the due and punctual payment by the Issuer of
all other sums due or to become due under the Securities or this
Indenture, and (c) the performance of all covenants, agreements,
obligations and liabilities of the Issuer under or pursuant to
the Securities and this Indenture.
OFFER: The term "Offer" has the meaning set
forth in Section 4.09(b).
OFFER AMOUNT: The term "Offer Amount" has the
meaning set forth in Section 4.09(c)(2).
OFFER PERIOD: The term "Offer Period" has the
meaning set forth in Section 4.09(c)(2).
OFFICER: The term "Officer" means the Chairman
of the Board, the President, any Vice President, the Treasurer or
the Secretary of the Issuer.
OFFICERS' CERTIFICATE: The term "Officers' Cer-
tificate" means a certificate signed by two Officers.
OPINION OF COUNSEL: The term "Opinion of
Counsel" means a written opinion from legal counsel who is
acceptable to the Trustee. The counsel may be an employee of or
counsel to the Issuer or the Trustee.
OUTSTANDING: The term "Outstanding", when used
with reference to Securities means, subject to the provisions of
Section 11.04, as of any particular time, all Securities
authenticated by the Trustee and delivered under this Indenture,
except:
(a) Securities theretofore canceled by the
Trustee or delivered to the Trustee for
cancellation;
(b) Securities for the payment or redemption in
whole of which Cash in the necessary amount
(including interest, if any) shall have been
deposited in trust with the Trustee or any paying
agents (other than in the case of defeasance
pursuant to Article Six), provided that if such
Securities are to be redeemed prior to the
maturity thereof, notice of such redemption shall
have been given as in Article Three provided, or
provision satisfactory to the Trustee shall have
been made for giving such notice; and
(c) Securities in lieu of or in substitution or
exchange for which other Securities shall have
been authenticated and delivered, or which have
been paid, pursuant to the terms of Section 2.07,
unless proof satisfactory to the Issuer and the
Trustee is presented that any such Securities are
held by Persons in whose hands any of such
Securities is a valid, binding and legal
obligation of the Issuer.
PARENT: The term "Parent" means any Person of
which the Issuer is a Subsidiary at the relevant time.
PAYMENT DATE: The term "Payment Date" has the
respective meanings specified in the forms of Securities included
in this Indenture.
PERMITTED HOLDERS: The term "Permitted Holders"
means Kelso & Company and its Affiliates, the Co-Investors and
the Management Shareholders. The terms Co-Investors and
Management Shareholders have the respective meanings specified in
the Stockholders' Agreement, as in effect on the date hereof.
PERMITTED INVESTMENTS: The term "Permitted In-
vestments" means (i) U.S. Government Obligations maturing within
90 days of the date of acquisition thereof, (ii) investments in
certificates of deposit maturing within 90 days of the date of
acquisition thereof issued by a bank or trust company which is
organized under the laws of the United States or any state
thereof having capital, surplus and undivided profits aggregating
in excess of $500,000,000 or issued in an amount not to exceed
$1 million at any time by United States National Bank of Oregon
(or, if United States National Bank of Oregon ceases to be the
bank with which the Issuer has its principal banking
relationship, the bank with which the Issuer then has its
principal banking relationship), (iii) investments in commercial
paper given the highest rating (i.e., A-1/P-1 or better) by two
established national credit rating agencies and maturing not more
than 90 days from the date of acquisition thereof and (iv) solely
with respect to Investments by the Trustee, in the absence of any
direction by the Issuer or during the continuance of a Default or
an Event of Default, shares in any money market fund registered
under the Investment Company Act of 1940, as amended, the
portfolio of which is limited to U.S. Government Obligations and
U.S. agency obligations.
PERSON: The term "Person" means any individual,
corporation, partnership, joint venture, association, joint-stock
company, trust, unincorporated organization or government or any
agency or political subdivision thereof.
PREFERRED STOCK: The term "Preferred Stock", as
applied to the Capital Stock of any corporation, means Capital
Stock of any class or classes (however designated) which is
preferred as to the payment of dividends, or as to the
distribution of assets upon any voluntary or involuntary
liquidation or dissolution of such corporation, over shares of
Capital Stock of any other class of such corporation.
PRINCIPAL: The term "principal" of a Security
means the principal of the Security which is due or overdue or is
to become due at the relevant time.
PURCHASE DATE: The term "Purchase Date" has the
meaning set forth in Section 4.09(c)(1).
RECORD DATE: The term "Record Date" has the
respective meanings provided in the forms of Securities included
in this Indenture.
REDEEMABLE STOCK: The term "Redeemable Stock"
means any Capital Stock that by its terms or otherwise is
required to be redeemed on or prior to the first anniversary of
the Stated Maturity of the Securities or is redeemable at the
option of the holder thereof at any time on or prior to the first
anniversary of the Stated Maturity of the Securities.
REFERENCE PERIOD: The term "Reference Period",
with respect to any computation of the Consolidated EBITDA
Coverage Ratio, means the most recent four consecutive fiscal
quarters ending at least 45 days prior to the date of
determination of the Consolidated EBITDA Coverage Ratio.
REPRESENTATIVE: The term "Representative" has
the meaning set forth in Section 10.02.
RESTRICTED PAYMENT: The term "Restricted
Payment" has the meaning set forth in Section 4.04.
SEC: The term "SEC" means the Securities and
Exchange Commission.
SECURITIES ACT: The term "Securities Act" means
the Securities Act of 1933, as amended.
SECURITY: The term "Security" means any Security
authenticated by the Trustee and delivered under this Indenture.
SECURITY REGISTER: The term "Security Register"
has the meaning set forth in Section 2.06.
SECURITY REGISTRAR; SECURITY CO-REGISTRAR: The
terms "Security Registrar" and "Security Co-Registrar" have the
meanings set forth in Section 2.06.
SENIOR DEBT: The term "Senior Debt" means Debt
unless, in the instrument creating or evidencing the same or
pursuant to which the same is outstanding, it is provided that
such obligations are pari passu or subordinate or junior in right
of payment to the Securities; PROVIDED, HOWEVER, that Senior Debt
shall not be deemed to include (1) any obligation of the Issuer
to any Subsidiary, (2) any liability for federal, state, local or
other taxes owed or owing by the Issuer, (3) any accounts payable
or other liability to trade creditors arising in the ordinary
course of business (including guarantees thereof or instruments
evidencing such liabilities), (4) any indebtedness, guarantee or
obligation of the Issuer which is subordinate or junior in any
respect to any other indebtedness, guarantee or obligation of the
Issuer (including, without limitation, the Securities), (5) the
portion of any Debt issued in violation of Section 4.05 or
Section 4.06 hereof or (6) any obligations of the Issuer or any
Subsidiary with respect to the redemption, repayment or other
repurchase of any Redeemable Stock or Exchangeable Stock.
SENIOR SUBORDINATED DEBT: The term "Senior Sub-
ordinated Debt" has the meaning set forth in Section 10.02.
SERIES B BONDS: The term "Series B Bonds" means
the 11 1/2% First Mortgage Bonds, Series B, Due 2005 of the
Issuer issued pursuant to the First Mortgage Bonds Indenture.
STATED MATURITY: The term "Stated Maturity"
means, with respect to any security, the date specified in such
security as the fixed date on which the final payment of
principal of such security is due and payable, including pursuant
to any mandatory redemption provision.
STOCKHOLDERS' AGREEMENT: The term Stockholders'
Agreement means the Stockholders' Agreement, dated as of
December 24, 1986, as amended or restated, among the Issuer and
the parties listed on the signature pages thereof.
SUBORDINATED OBLIGATION: The term "Subordinated
Obligation" means any Debt of the Issuer (whether outstanding on
the date hereof or hereafter incurred) which is subordinate or
junior in right of payment to the Securities.
SUBSIDIARY: The term "Subsidiary" means any
corporation, association, partnership or other business entity of
which more than 50% of the total voting power of shares of
Capital Stock or other interests (including partnership
interests) entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or
trustees thereof is at the time owned or controlled, directly or
indirectly, by (i) the Issuer, (ii) the Issuer and one or more
Subsidiaries or (iii) one or more Subsidiaries.
SUPERIOR DEBT: The term "Superior Debt" has the
meaning set forth in Section 10.02.
TANGIBLE PROPERTY: The term "Tangible Property"
means all land, buildings, machinery and equipment and leasehold
interests and improvements which would be reflected on a
consolidated balance sheet of the Issuer and its consolidated
Subsidiaries, prepared in accordance with generally accepted
accounting principles, excluding (i) all such tangible property
located outside the United States, including the Commonwealth of
Puerto Rico and each territory and possession of the United
States and all areas subject to its jurisdiction, (ii) all
rights, contracts and other intangible assets of any nature
whatsoever and (iii) all inventories and other current assets.
TIA: The term "TIA" means the Trust Indenture
Act of 1939 (15 U.S.C. sections 77aaa--77bbbb) as in effect on
the date of this Indenture; PROVIDED, HOWEVER, that in the event
that the Trust Indenture Act of 1939 is amended after such date,
"TIA" means, to the extent required by any such amendment, the
Trust Indenture Act of 1939 as so amended.
TRUSTEE: The term "Trustee" means the
corporation or trust company or national banking association
named as Trustee in this Indenture until any successor Trustee
shall have become such pursuant to the applicable provisions of
this Indenture, and thereafter "Trustee" shall mean such
successor Trustee.
TRUST OFFICER: The term "Trust Officer" means
any vice president, trust officer or corporate trust officer of
the Trustee, in each case employed by the Corporate Trust
Administration department of the Trustee.
UNITED STATES: The term "United States" means
the United States of America, including the states and the
District of Columbia.
UNITED STATES PERSON: The term "United States
Person" means a Person who, for United States federal income tax
purposes, is (a) a citizen or resident of the United States, (b)
an estate or trust the income of which is subject to United
States federal income taxation regardless of its source, or (c) a
corporation, partnership or other entity created or organized in
or under the laws of the United States or any state or the
District of Columbia.
U.S. GOVERNMENT OBLIGATIONS: The term "U.S.
Government Obligations" means direct obligations (or certificates
evidencing an ownership interest in such obligations) of the
United States of America (including any agency or instrumentality
thereof) for the payment of which the full faith and credit of
the United States of America is pledged and which are not
callable at the issuer's option.
VOTING STOCK: The term "Voting Stock" of a
corporation means all classes of Capital Stock of such corpora-
tion then outstanding and normally entitled to vote in the
election of directors.
WHOLLY OWNED SUBSIDIARY: The term "Wholly Owned
Subsidiary" means a Subsidiary all the Capital Stock of which
(other than directors' qualifying shares) is owned by the Issuer
or another Wholly Owned Subsidiary.
SECTION 1.02. INCORPORATION BY REFERENCE OF
TRUST INDENTURE ACT. Whenever this Indenture refers to a provi-
sion of the TIA, the provision is incorporated by reference in
and made a part of this Indenture. The following TIA terms used
in this Indenture have the following meanings:
"COMMISSION" means the SEC.
"INDENTURE SECURITIES" means the Securities.
"INDENTURE SECURITY HOLDER" means a Security-
holder.
"INDENTURE TO BE QUALIFIED" means this Indenture.
"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE"
means the Trustee.
"OBLIGOR" on the indenture securities means the
Issuer.
All other TIA terms used in this Indenture that
are defined by the TIA, defined by TIA reference to another
statute or defined by SEC rule have the meanings assigned to them
by such definitions.
SECTION 1.03. RULES OF CONSTRUCTION. Unless the
context otherwise requires:
(1) an accounting term not otherwise defined has
the meaning assigned to it in accordance with
generally accepted accounting principles as in
effect from time to time;
(2) "or" is not exclusive;
(3) "including" means including, without limita-
tion;
(4) words in the singular include the plural and
words in the plural include the singular;
(5) the principal amount of any non-
interest bearing or other discount security at
any time shall be the principal amount thereof
that would be shown on a balance sheet of the
Issuer dated such date prepared in accordance
with generally accepted accounting principles and
accretion of principal on such security shall be
deemed to be the issuance of Debt; and
(6) the principal amount of any Redeemable Stock
shall be the greater of (i) the maximum
liquidation value of such Redeemable Stock or
(ii) the maximum mandatory redemption or
mandatory repurchase price with respect to such
Redeemable Stock, whichever is greater.
ARTICLE TWO
ISSUANCE, DESCRIPTION, EXECUTION
AND EXCHANGE OF SECURITIES
SECTION 2.01. DESIGNATION, AMOUNT AND ISSUE OF
SECURITIES. The Securities shall be designated as the Issuer's
"15% Senior Subordinated Debentures, Due 2007." The Securities
will be limited to $115,000,000 in aggregate principal amount,
except as provided in Section 2.07.
SECTION 2.02. AUTHENTICATION AND DELIVERY OF
SECURITIES. Upon the execution and delivery of this Indenture,
and from time to time thereafter, the Securities shall be
executed by the Issuer and such Securities may thereupon be
delivered to the Trustee for authentication, and the Trustee
shall thereupon authenticate and deliver said Securities upon an
Issuer Order.
SECTION 2.03 FORM OF SECURITIES AND TRUSTEE'S
CERTIFICATE OF AUTHENTICATION GENERALLY. The Securities and the
Trustee's certificate of authentication to be borne by the
Securities shall be in substantially the form annexed hereto as
Exhibit A, with such appropriate insertions, omissions,
substitutions and other warranties as are required or permitted
under this Indenture, in temporary or definitive form, and may
have such letters, numbers or other marks of identification or
designation and such legends or endorsements as the Issuer may
deem appropriate and as are not inconsistent with the provisions
of this Indenture, or as may be required to comply with any law
or with any rule or regulation made pursuant thereto or with any
rule or regulation of any securities exchange on which the
Securities may be listed, or to conform to usage. The terms and
provisions contained in the form of the Securities annexed hereto
as Exhibit A shall constitute, and are hereby expressly made, a
part of this Indenture. To the extent applicable, the Issuer and
the Trustee, by their execution and delivery of this Indenture,
expressly agree to such terms and provisions and to be bound
thereby.
SECTION 2.04 DENOMINATION AND DATE OF SECURI-
TIES; PAYMENT OF PRINCIPAL AND INTEREST. The Securities shall be
issuable in registered form without coupons. The Securities
shall be numbered, lettered, or otherwise distinguished in such
manner or in accordance with such plan as the officers of the
Issuer executing the same may determine with the approval of the
Trustee.
The Securities shall be issuable in denominations
of $1,000 and such greater denominations as are whole multiples
of $1,000. Each Security shall be dated the date of its
authentication and shall bear interest on the unpaid principal
amount thereof from and after the most recent Payment Date to
which interest has been paid or, if no interest has been paid,
from and after the Issue Date. Each Security authenticated
between the Record Date for any Payment Date and such Payment
Date shall be dated the date of its authentication but shall bear
interest from such Payment Date, unless the Issuer shall default
in the payment of interest due on such Payment Date, in which
case any such Security shall bear interest from the Payment Date
next preceding the date of such Security to which interest has
been paid or, if no interest has been paid on the Securities,
from the Issue Date.
The Person in whose name any Security is regis-
tered at 5:00 p.m., New York City time on any Record Date with
respect to any Payment Date for such Security shall be entitled
to receive the Interest Payment payable on such Payment Date
notwithstanding any transfer or exchange of such Security
subsequent to the Record Date and prior to such Payment Date,
except that, if and to the extent the Issuer shall default in the
payment of the Interest Payment due on such Payment Date or shall
not have duly provided for the payment thereof, such defaulted
payment shall be paid to the Persons in whose names Securities
then Outstanding are registered on a subsequent date of record
established by notice given by mail by or on behalf of the Issuer
to the Holders of Securities not less than 10 days preceding such
subsequent date of record and payment of such defaulted Interest
Payment shall be made not less than five days after such date of
record.
The principal of the Securities at maturity or
upon redemption in whole or in part shall be payable, together
with accrued interest, upon surrender of the Securities at the
offices of the paying agent of the Issuer designated for that
purpose, as provided in Section 4.12. Interest Payments on
Securities will be made in U.S. dollars, at the office of the
Trustee, but, at the option of the Issuer, such payments may be
made by check drawn on a bank in New York, New York mailed to the
address of the Holder as such address shall appear on the
Security Register.
Interest on the Securities will be computed on
the basis of a 360-day year consisting of twelve 30-day months.
SECTION 2.05 EXECUTION OF SECURITIES. Each
Security shall be signed in the name and on behalf of the Issuer
manually or by facsimile by its President or any Vice President
under its corporate seal (which may be printed, engraved or
otherwise reproduced thereon, by facsimile or otherwise) attested
by the manual or facsimile signature of its Secretary or an
Assistant Secretary, prior to the authentication of the Security,
and the delivery of such Security by the Trustee upon an Issuer
Order, after the authentication thereof hereunder, shall
constitute due delivery of such Security on behalf of the Issuer.
In case any officer of the Issuer who shall have signed, or whose
facsimile signature appears on any of the Securities shall cease
to be such officer before the Securities shall have been
authenticated and delivered by the Trustee or disposed of, such
Security nevertheless may be authenticated and delivered or
disposed of as though the Person who signed such Security had not
ceased to be such officer. Any Security may be signed on behalf
of the Issuer by such officer as, at the actual date of the
execution of such Security shall be the proper officer of the
Issuer, although at the date of the execution of this Indenture
any such Person was not such an officer.
Only such Securities as shall bear thereon a
certificate of authentication substantially in the form herein
recited, executed by the Trustee by manual signature of one of
its authorized officers, shall be entitled to the benefits of
this Indenture or be valid or obligatory for any purpose. Such
certificate by the Trustee upon any Security executed by the
Issuer shall be conclusive evidence that the Security so
authenticated has been duly authenticated and delivered hereunder
and that the Holder is entitled to the benefits of this
Indenture.
SECTION 2.06 EXCHANGE AND REGISTRATION OF TRANS-
FER OF SECURITIES. The Issuer shall keep, at the office or
agency to be maintained by the Trustee for such purpose (herein
referred to as the "Security Registrar" or the "Security Co-
Registrar") in the Borough of Manhattan, The City of New York, as
provided in Section 4.12, a register (herein sometimes referred
to as the "Security Register") in which, subject to such reason-
able regulations as it may prescribe, the Issuer shall provide
for the registration of the Securities and the registration of
transfers thereof as in this Article Two provided. Upon written
notice to the Trustee and any acting Security Registrar, the
Issuer may appoint a successor Security Registrar for such
purposes. The Issuer may appoint one or more Security
Co-Registrars for such purposes. At all reasonable times, any
Security Register shall be open for inspection by the Trustee.
Upon due presentment for registration of transfer of any Security
at the office or agency of any Security Registrar or any Security
Co-Registrar, the Issuer shall execute, and the Trustee shall
authenticate and deliver, in the name of the transferee or
transferees, one or more new Securities of like tenor of any
authorized denominations for an aggregate principal amount equal
to the then current principal balance of the Security presented
for registration of transfer.
All Securities presented for registration of
transfer or for exchange, redemption or payment, as the case may
be, shall (if so required by the Issuer or the Trustee or the
Security Registrar or any Security Co-Registrar) be duly endorsed
by, or be accompanied by a written instrument or instruments of
assignment and transfer in form satisfactory to the Person
imposing such requirement duly executed by, the Holder or his
attorney duly authorized in writing.
No service charge shall be made for any exchange
or registration of transfer of Securities (except the costs of
mailing), but the Issuer may require payment of a sum sufficient
to cover any tax, assessment or other governmental charge that
may be imposed in connection therewith.
The Issuer shall not be required to exchange or
register the transfer of any Securities called for redemption or
any Securities for a period of fifteen days before a selection of
Securities to be redeemed.
Upon delivery by any Security Registrar or
Security Co-Registrar of a Security in exchange for a Security
surrendered to it in accordance with the provisions of this
Indenture, the Security so delivered shall, for all purposes of
this Indenture, be deemed to be fully registered in the Security
Register; PROVIDED, HOWEVER, that in making any determination as
to the identity of Persons who are Holders of Securities, the
Trustee shall, subject to the provisions of Section 7.01, be
fully protected in relying on the Security Register.
SECTION 2.07 MUTILATED, DESTROYED, LOST OR
STOLEN SECURITIES. In case any Security shall become mutilated,
destroyed, lost or stolen, the Issuer shall execute, and the
Trustee shall authenticate and deliver, a new Security or
Securities of like series and tenor, bearing a number not
contemporaneously outstanding in an aggregate principal amount
equal to the current principal balance of, and in substitution
for, the Security so mutilated, destroyed, lost or stolen. In
every such case, the applicant for a substitute Security shall,
at the expense of the applicant, furnish to the Issuer, the
Trustee, the Security Registrar and any Security Co-Registrar
such security or indemnity as may be required by them to save
each of them harmless. Also, in every case of destruction, loss
or theft, the applicant shall furnish to the Issuer, the Trustee,
the Security Registrar and any Security Co-Registrar evidence to
their satisfaction of the destruction, loss or theft of such
Security and of the ownership thereof. In every case of
mutilation, the applicant shall surrender to the Trustee the
Security so mutilated. The Trustee shall authenticate any such
substitute Security and deliver the same. Upon the issuance of
any substitute Security, the Issuer may require the payment of a
sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses
connected therewith. If required by the Trustee or the Issuer,
such applicant shall furnish an indemnity bond sufficient in the
judgment of the Issuer and the Trustee to protect the Issuer, the
Trustee, the paying agent, the Security Registrar and any
Security Co-Registrar from any loss which any of them may suffer
if a Security is replaced. In case any Security shall have
become mutilated, destroyed, lost or stolen and has become or is
about to become due or payable, the Issuer may pay or authorize
the payment of the same instead of issuing a substitute Security
as permitted by this Section 2.07.
Every substitute Security issued pursuant to the
provisions of this Section 2.07 by virtue of the fact that any
Security is destroyed, lost or stolen shall constitute an
additional contractual obligation of the Issuer, whether or not
the destroyed, lost or stolen Security shall at any time be found
by anyone, and shall be entitled to all the benefits and be
subject to all the terms and conditions of this Indenture equally
and proportionately with any and all other Securities duly issued
and outstanding hereunder. All Securities shall be held and
owned upon the express condition that, to the extent permitted by
law, the foregoing provisions are exclusive with respect to the
replacement or payment of mutilated, destroyed, lost or stolen
Securities and shall preclude any and all other rights or
remedies, notwithstanding any law or statute now existing or
hereafter enacted to the contrary with respect to the replacement
or payment of negotiable instruments or other securities without
their surrender.
SECTION 2.08 CANCELLATION OF SURRENDERED SECURI-
TIES. All Securities surrendered for redemption in whole or in
part pursuant to the provisions of Article Three and all
Securities surrendered for payment or for substitution or
exchange or registration of transfer hereunder shall be delivered
to the Trustee for cancellation and shall be canceled by the
Trustee, and no Securities shall be issued in lieu thereof,
except as otherwise provided in this Indenture. The Trustee
shall destroy all canceled Securities held by it and shall
deliver to the Issuer a certificate in respect of such
destruction. If the Issuer shall acquire any of the Securities,
however, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Securities
unless and until the same are delivered to the Trustee for
cancellation. Any Securities acquired by the Issuer and
delivered to the Trustee shall be canceled by the Trustee upon
receipt of written instructions from the Issuer.
SECTION 2.09 TEMPORARY SECURITIES. Until defin-
itive Securities are ready for delivery, the Issuer may prepare
and, upon written request signed by two Officers of the Issuer,
the Trustee shall authenticate temporary Securities. Temporary
Securities shall be substantially in the form of definitive
Securities, but may have variations that the Issuer considers
appropriate for temporary Securities, as conclusively evidenced
by the execution of such Securities. Without unreasonable delay,
the Issuer shall prepare and the Trustee shall authenticate
definitive Securities and deliver them in exchange for temporary
Securities.
SECTION 2.10 FOREIGN HOLDER CERTIFICATION. Each
Holder that is not a United States Person shall provide the
Issuer and the Trustee on or prior to the date of the acquisition
of a Security with two copies of a properly completed United
States Internal Revenue Service Form 4224 or Form 1001 (or, if a
Holder is not described in Section 871(h)(3) or Section 881(c)(3)
of the Code, Form W-8), as appropriate, or any successor forms
thereto, in each case together with such other information or
necessary certification establishing to the satisfaction of the
Issuer that such Holder is not subject to United States federal
withholding tax on interest paid by the Issuer under the
Securities (or subject to such tax at a reduced rate of
withholding), in each case based on applicable United States law
or the provisions of an applicable United States treaty as in
effect at the time of delivery by such Holder of the appropriate
forms. Further, each such Holder shall provide the Issuer and
the Trustee with a new Form 4224 or Form 1001 (or Form W-8), as
appropriate, or applicable successor forms, together with such
other information or necessary certification as described in the
preceding sentence, on or before the date the previously
delivered forms (or such other information or certification)
become obsolete or expire or promptly after the occurrence of any
event requiring a change to the most recent forms (or such other
information or certification) previously delivered. In the case
of any payment of interest under the Securities to a Holder that
is not a United States Person, unless the Issuer and the Trustee
shall have received such forms (together with such information or
certification), satisfactory to them, indicating that such pay-
ment to such Holder by the Issuer is not subject to United States
federal withholding tax, the Issuer or the Trustee shall withhold
taxes from such payment at the applicable rate. If such forms
indicate that such Holder is subject to United States federal
withholding tax at a reduced rate under an applicable income tax
treaty, the Issuer or the Trustee shall withhold at the
applicable reduced treaty rate. The Trustee may assume that any
Holder is a United States Person unless the Trustee has actual
knowledge to the contrary or has received such forms. Any
amounts required to be withheld for taxes under the laws of the
United States shall be so withheld and remitted to the
appropriate tax authorities by the Issuer or the Trustee. The
Issuer or the Trustee shall promptly forward to such Holder an
original or certified copy of a tax receipt evidencing the
payment of such taxes.
Section 2.11 CUSIP NUMBERS. The Issuer, in
issuing the Securities, may use "CUSIP" numbers (if then
generally in use), and the Trustee shall use CUSIP numbers in
notices of redemption or exchange as a convenience to Holders;
PROVIDED, HOWEVER, that any such notice shall state that no
representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice
of redemption or exchange and that reliance may be placed only on
the other identification numbers printed on the Securities and
any redemption shall not be affected by any defect in or omission
of such numbers. The Issuer will promptly notify the Trustee of
the receipt of or any change in CUSIP numbers.
<PAGE>
ARTICLE THREE
REDEMPTION OF SECURITIES
SECTION 3.01. OPTIONAL REDEMPTION. The Se-
curities may be redeemed in whole, or from time to time in part,
at the option of the Issuer, upon notice given pursuant to
Section 3.02, at a redemption price equal to 100% of the
outstanding principal amount of the Securities to be redeemed,
plus accrued interest to the redemption date prior to maturity.
For purposes of this Indenture and the Securities, the term
"redeem" shall have the same meaning as the term "prepay".
Section 3.02. NOTICE OF REDEMPTION. In the
event that the Issuer elects to redeem the Securities pursuant to
Section 3.01 hereof, the Issuer shall deliver to the Trustee, at
least 45 days prior to the date fixed for redemption, an
Officers' Certificate of the Issuer (i) stating that the Issuer
is entitled to effect such redemption and (ii) specifying the
date fixed for redemption and the principal amount of the
Securities to be redeemed. The Trustee will be entitled to rely
conclusively upon such Officers' Certificate. At least 30 but
not more than 60 days prior to any date fixed for redemption, the
Trustee shall mail by first-class mail, postage prepaid, to the
Holders of the Securities at their addresses as the same appear
on the Security Register, a notice of such redemption containing
the following information:
(1) the date fixed for redemption;
(2) the redemption price;
(3) the name and address of the paying agent;
(4) that Securities called for redemption must
be surrendered to the paying agent to collect the
redemption price;
(5) if fewer than all the Outstanding Securities
are to be redeemed, the identification and
principal amounts of the particular Securities to
be redeemed and, if any Security is being
redeemed in part, the portion of the principal
amount of such Security to be redeemed and that,
after the redemption date, upon surrender of such
Security, a new Security or Securities in
principal amount equal to the unredeemed portion
will be issued;
(6) that, unless the Issuer defaults in making
such redemption payment, interest will cease to
accrue on Securities called for redemption on and
after the redemption date; and
(7) the paragraph of the Securities pursuant to
which the Securities called for redemption are
being redeemed.
The notice, if mailed as herein provided, shall
be conclusively presumed to have been duly given to the Holder of
a Security to whom such notice is mailed whether or not any
Holder receives such notice. Neither any failure to give notice
by mail nor any defect in the notice to the Holder of any
Security to be redeemed shall affect the validity of the
proceedings for the redemption of any other Security.
SECTION 3.03. PROCEDURES FOR REDEMPTION. On or
before 3 p.m. New York time on the Business Day next preceding
the date fixed for the redemption of Securities, the Issuer shall
deposit with the Trustee or with the paying agents an amount of
money sufficient to redeem on the date fixed for redemption, the
principal amount of the Securities to be redeemed (at the appli-
cable redemption price thereof, together with any interest
accrued thereon to the date of redemption in the case of
redemptions).
The Trustee shall not in any event be liable for
the payment of principal of, or interest on, any Securities
called for redemption as herein provided, except to the extent
that money shall have been deposited with it for such purpose.
Upon any redemption of Securities pursuant to
Section 3.01, the Issuer shall deliver to the Trustee an
Officers' Certificate of the Issuer stating that such Securities
have been redeemed.
SECTION 3.04. SELECTION OF SECURITIES TO BE
REDEEMED. In the case of the partial redemption of Securities
pursuant to the terms of this Indenture, selection of the
Securities for redemption will be made by the Trustee on a pro
rata basis, by lot or by such other method that complies with
applicable legal and securities exchange requirements, if any,
and that the Trustee in its sole discretion shall deem to be fair
and appropriate. Securities and portions thereof selected by the
Trustee for redemption shall be in amounts of $1,000 or integral
multiples thereof (with such adjustments as may be deemed
appropriate by the Trustee so that only Securities in de-
nominations of $1,000 or integral multiples thereof shall be
redeemed). Provisions of this Indenture that apply to Securities
called for redemption also apply to portions of Securities called
for redemption.
SECTION 3.05. WHEN SECURITIES CALLED FOR REDEMP-
TION BECOME DUE AND PAYABLE. If notice of redemption has been
mailed as provided in Section 3.02, the Securities called for
redemption specified therein shall become due and payable on the
date and at the place or places stated in such notice, at the
applicable redemption price, and on and after said date (unless
the Issuer shall default in the payment of such principal at the
applicable redemption price) interest on such principal so to be
redeemed shall cease to accrue.
Upon surrender to the Trustee or a paying agent
of a Security to be redeemed in whole or in part in accordance
with the terms of this Indenture, a payment of principal with
respect to such Security shall be made in accordance with the
terms of this Indenture at the redemption price, plus accrued
interest thereon to the redemption date, PROVIDED that any
Interest Payment the maturity of which is on or prior to such
redemption date will be payable on the relevant Payment Date to
the Holders of record at the close of business on the relevant
record dates referred to in the Securities.
Upon presentation of any Security redeemed in
part only, the Issuer shall execute and the Trustee shall authen-
ticate and deliver to or on the order of the Holder thereof, at
the expense of the Issuer, a new Security or Securities, of
authorized denominations, in principal amount equal to the
current principal balance of the unredeemed portion of the
Security so presented.
ARTICLE FOUR
PARTICULAR COVENANTS, REPRESENTATIONS
AND WARRANTIES OF THE ISSUER
The Issuer represents, warrants, covenants and
agrees, as follows:
SECTION 4.01. VALIDITY OF SECURITIES. The
Issuer is duly authorized under applicable law and its charter
documents to create and issue the Securities and to execute and
deliver this Indenture; all corporate action and governmental
consents, authorizations and approvals necessary or required
therefor have been duly and effectively taken or obtained. The
Securities are legal, valid and binding obligations of the
Issuer.
SECTION 4.02. PAYMENT OF PRINCIPAL OF, AND
INTEREST ON SECURITIES. The Issuer will duly and punctually pay
or cause to be paid the principal of, and interest (without
deduction or withholding for or on account of any taxes except as
required by law) on each of the Securities at the places, at the
respective times and in the manner provided in the Securities and
this Indenture.
SECTION 4.03. SEC REPORTS. The Issuer shall
file with the Trustee and provide Securityholders, within 15 days
after it files them with the SEC, copies of its annual report and
of the information, documents and other reports (or copies of
such portions of any of the foregoing as the SEC may by rules and
regulations prescribe) which the Issuer is required to file with
the SEC pursuant to Section 13 or 15(d) of the Exchange Act.
Notwithstanding that the Issuer may not be required to remain
subject to the reporting requirements of Section 13 or 15(d) of
the Exchange Act, the Issuer shall continue to file with the SEC
so long as any Securities remain Outstanding and provide the
Trustee and Securityholders with such annual reports and such
information, documents and other reports (or copies of such por-
tions of any of the foregoing as the SEC may by rules and
regulations prescribe) which are specified in Sections 13 and
15(d) of the Exchange Act. The Issuer also shall comply with the
other provisions of TIA section 314(a).
SECTION 4.04. LIMITATION ON RESTRICTED PAYMENTS.
(a) The Issuer shall not, and shall not permit any Subsidiary,
directly or indirectly, to (i) declare or pay any dividend or
make any distribution on or in respect of its Capital Stock
(including any distribution in connection with any merger or
consolidation involving the Issuer) or to the direct or indirect
holders of its Capital Stock (except dividends or distributions
payable solely in its Non-Convertible Capital Stock or in
options, warrants or other rights to purchase its Non-Convertible
Capital Stock and except dividends or distributions payable to
the Issuer or a Subsidiary), (ii) purchase, redeem or otherwise
acquire or retire for value any Capital Stock of the Issuer or of
any direct or indirect Parent of the Issuer, (iii) purchase,
repurchase, redeem, defease or otherwise acquire or retire for
value, prior to scheduled maturity, scheduled repayment or
scheduled sinking fund payment any Subordinated Obligations
(other than the purchase, repurchase or other acquisition of
Subordinated Obligations purchased in anticipation of and used
for satisfying a sinking fund obligation, principal installment
or final maturity, in each case due within one year of the date
of acquisition) or (iv) make any Investment in any Affiliate of
the Issuer, other than a Subsidiary that is not a Non-Recourse
Subsidiary or a Person which will become a Subsidiary that is not
a Non-Recourse Subsidiary as a result of any such Investment (any
such dividend, distribution, purchase, redemption, repurchase,
defeasance, other acquisition, retirement or Investment being
hereinafter referred to as a "Restricted Payment") if at the time
the Issuer or such Subsidiary makes such Restricted Payment:
(1) a Default shall have occurred and be
continuing (or would result therefrom);
(2) the Issuer is not able to issue $1.00 of
additional Debt in accordance with the provisions
of Section 4.06(a); or
(3) the aggregate amount of such Restricted
Payment and all other Restricted Payments since
the date of issuance of the Securities would
exceed the sum of:
(A) 50% of the Consolidated Net Income accrued
during the period (treated as one accounting
period) from the date of issuance of the Se-
curities, to the end of the most recent fiscal
quarter ending at least 45 days prior to the date
of such Restricted Payment (or, in case such Con-
solidated Net Income shall be a deficit, minus
100% of such deficit) and minus 100% of the
amount of any write-downs, write-offs, other
negative revaluations and other negative
extraordinary charges not otherwise reflected in
Consolidated Net Income during such period;
(B) the aggregate Net Cash Proceeds received by
the Issuer from the issuance or sale of its
Capital Stock (other than Redeemable Stock or
Exchangeable Stock) subsequent to the date of
issuance of the Securities (other than an
issuance or sale to a Subsidiary or an employee
stock ownership plan);
(C) the aggregate Net Cash Proceeds received by
the Issuer from the issuance or sale of its
Capital Stock (other than Redeemable Stock or
Exchangeable Stock) to an employee stock
ownership plan subsequent to the date of issuance
of the Securities, but (if such employee stock
ownership plan incurs any Debt) only to the
extent that any such proceeds are equal to any
increase in the Consolidated Net Worth of the
Issuer resulting from principal repayments made
by such employee stock ownership plan with
respect to Debt incurred by it to finance the
purchase of such Capital Stock; and
(D) the amount by which Debt of the Issuer is
reduced on the Issuer's balance sheet upon the
conversion or exchange (other than by a Subsid-
iary) subsequent to the date of issuance of the
Securities of any Debt of the Issuer convertible
or exchangeable for Capital Stock (other than
Redeemable Stock or Exchangeable Stock) of the
Issuer (less the amount of any Cash, or other
property, distributed by the Issuer upon such
conversion or exchange).
(b) The provisions of Section 4.04(a) shall not
prohibit:
(i) any purchase or redemption of Capital Stock
or Subordinated Obligations of the Issuer made by
exchange for, or out of the proceeds of the
substantially concurrent sale of, Capital Stock
of the Issuer (other than Redeemable Stock or
Exchangeable Stock and other than Capital Stock
issued or sold to a Subsidiary or an employee
stock ownership plan); PROVIDED, HOWEVER, that
(A) such purchase or redemption shall be excluded
in the calculation of the amount of Restricted
Payments made since the date of issuance of the
Securities and (B) the Net Cash Proceeds from
such sale shall be excluded from clauses (3)(B)
and (3)(C) of Section 4.04(a);
(ii) any purchase or redemption of
Subordinated Obligations of the Issuer made by
exchange for, or out of the proceeds of the
substantially concurrent sale of, Subordinated
Obligations of the Issuer; PROVIDED, HOWEVER,
that such purchase or redemption shall be
excluded in the calculation of the amount of
Restricted Payments made since the date of
issuance of the Securities;
(iii) any purchase or redemption of
Subordinated Obligations from Net Available Cash
to the extent permitted by Section 4.09;
PROVIDED, HOWEVER, that such purchase or
redemption shall be excluded in the calculation
of the amount of Restricted Payments made since
the date of issuance of the Securities;
(iv) dividends paid within 60 days after the
date of declaration thereof if at such date of
declaration such dividends would have complied
with this Section; PROVIDED, HOWEVER, that at the
time of payment of such dividends, no other
Default shall have occurred and be continuing (or
result therefrom); PROVIDED FURTHER, HOWEVER,
that such dividends shall be included in the
calculation of the amount of Restricted Payments
made since the date of issuance of the
Securities;
(v) any repurchase of Capital Stock of the
Issuer after the date of issuance of the
Securities pursuant to the terms of the
Stockholders' Agreement from officers and
employees (or their estates) of the Issuer or its
Subsidiaries upon death, disability or termin-
ation of employment of such officers and
employees; PROVIDED, HOWEVER, that (A) the
aggregate amount of all such repurchases
(excluding repurchases made with proceeds of life
insurance policies maintained by the Issuer on
such employees or officers) in any fiscal year
shall not exceed $500,000; (B) to the extent that
the aggregate amount of such repurchases
(excluding repurchases made with proceeds of life
insurance policies maintained by the Issuer on
such employees or officers) in any fiscal year is
less than $500,000, the difference between
$500,000 and such amount may be carried forward
and applied to repurchases in subsequent fiscal
years; and (C) all such repurchases shall be
included in the calculation of the amount of
Restricted Payments made since the date of
issuance of the Securities;
(vi) Cash dividends paid after the date of
issuance of the Securities with respect to the
ESOP Preferred Stock; PROVIDED, HOWEVER, that
(A) the aggregate amount of all such dividends
paid in any fiscal year shall not exceed
$500,000; (B) to the extent that the aggregate
amount of such dividends paid in any fiscal year
is less than $500,000, the difference between
$500,000 and such amount may be carried forward
and applied to the payment of such dividends in
subsequent fiscal years; and (C) all such
dividends shall be included in the calculation of
the amount of Restricted Payments made since the
date of issuance of the Securities;
(vii) Investments in Non-Recourse
Subsidiaries, not to exceed $5,000,000 in the
aggregate during the term of this Indenture;
PROVIDED, HOWEVER, that all such Investments
shall be excluded in the calculation of the
amount of Restricted Payments made since the date
of issuance of the Securities; or
(viii) Restricted Payments not to exceed
$5,000,000 in the aggregate during the term of
this Indenture; PROVIDED, HOWEVER, that all such
Restricted Payments shall be included in the
calculation of the amount of Restricted Payments
made since the date of issuance of the
Securities.
SECTION 4.05. LIMITATION ON SENIOR SUBORDINATED
DEBT. The Issuer shall not, and shall not permit any Subsidiary
to, issue, directly or indirectly, any Debt that is expressly
subordinate in right of payment to any Superior Debt unless such
Debt, by its terms or by the terms of any agreement or instrument
pursuant to which such Debt is outstanding, is expressly made
PARI PASSU with, or subordinate in right of payment to, the
Securities, pursuant to provisions substantially similar to those
contained in Article 10 of this Indenture; PROVIDED, that the
foregoing limitation shall not apply to distinctions between
categories of Superior Debt of the Issuer that exist by reason of
any Liens arising or created in respect of some but not all of
such Superior Debt.
SECTION 4.06. LIMITATION ON DEBT. (a) The
Issuer shall not issue, directly or indirectly, any Debt unless
the Consolidated EBITDA Coverage Ratio (as shown by a
consolidated pro forma income statement of the Issuer and its
consolidated Subsidiaries for the Reference Period after giving
effect to (i) the issuance of such Debt and (if applicable) the
application of the net proceeds thereof to refinance other Debt
as if such Debt was issued and the application of such proceeds
occurred at the beginning of the Reference Period, (ii) the
issuance and retirement of any other Debt since the last day of
the most recent fiscal quarter covered by such income statement
as if such Debt was issued or retired at the beginning of the
Reference Period and (iii) the acquisition or disposition of any
company or business acquired or disposed of by the Issuer since
the first day of the Reference Period, including any acquisition
or disposition which will be consummated substantially
contemporaneously with the issuance of such Debt, as if such
acquisition or disposition occurred at the beginning of the
Reference Period), exceeds 1.75 to 1.0 for the Reference Period.
(b) Notwithstanding Section 4.06(a), the Issuer
may issue the following Debt:
(1) Debt issued as working capital and letter of
credit financing in an aggregate principal amount
outstanding at any time not to exceed the greater
of (i) the sum of (A) 85% of the book value of
the net trade receivables of the Issuer and its
Subsidiaries and (B) $7.5 million or (ii) up to
$27.5 million of Debt incurred pursuant to the
terms of the New Credit Agreement and Debt issued
in exchange for, or the proceeds of which are
used to refund or refinance, the Debt permitted
by this clause (ii);
(2) Debt owed to and held by a Wholly Owned
Subsidiary; PROVIDED, HOWEVER, that any
subsequent issuance or transfer of any Capital
Stock which results in any such Wholly Owned
Subsidiary ceasing to be a Wholly Owned
Subsidiary or any transfer of such Debt (other
than to a Wholly Owned Subsidiary) shall be
deemed, in each case, to constitute the issuance
of such Debt by the Issuer;
(3) the Securities and Debt issued in exchange
for, or the proceeds of which are used to refund
or refinance, any Debt permitted by this
clause (3); PROVIDED, HOWEVER, that (i) the
principal amount of the Debt so issued shall not
exceed the principal amount of the Debt so
exchanged, refunded or refinanced and (ii) the
Debt so issued (A) shall not mature prior to the
Stated Maturity of the Debt so exchanged,
refunded or refinanced and (B) shall have an
Average Life equal to or greater than the
remaining Average Life of the Debt so exchanged,
refunded or refinanced; and
(4) Debt (other than Debt described in
clause (1),(2) or (3) of this Section)
outstanding on the date of issuance of the
Securities and Debt issued in exchange for, or
the proceeds of which are used to refund or
refinance, any Debt permitted by this clause (4);
PROVIDED, HOWEVER, that (i) the principal amount
of the Debt so issued shall not exceed the
principal amount of the Debt so exchanged,
refunded or refinanced and (ii) the Debt so
issued (A) shall not mature prior to the Stated
Maturity of the Debt so exchanged, refunded or
refinanced, (B) shall have an Average Life equal
to or greater than the remaining Average Life of
the Debt so exchanged, refunded or refinanced and
(C) shall be subordinated in right of payment to
the Securities if the Debt so exchanged, refunded
or refinanced is so subordinated; and
(5) Debt in an aggregate principal amount which,
together with all other Debt of the Issuer then
outstanding (other than Debt permitted by
clauses (1) through (4) of this paragraph) does
not exceed the greater of: (i) $40,000,000 and
(ii) 10% of Consolidated Net Tangible Assets as
of the end of the most recent fiscal quarter of
the Issuer ending not less than 45 days from the
date of determination.
The Issuer may issue Debt to finance the reason-
able underwriting fees and other transaction fees incurred by the
Issuer in connection with the issuance of the Debt referred to in
clauses (3) and (4) so long as the issuance of such Debt complies
with Section 4.06.
SECTION 4.07. LIMITATION ON SUBSIDIARY DEBT AND
PREFERRED STOCK. The Issuer shall not permit any Subsidiary to
issue, directly or indirectly, any Debt or Preferred Stock
except:
(1) Debt or Preferred Stock issued to and held
by the Issuer or a Wholly Owned Subsidiary;
PROVIDED, HOWEVER, that (i) any subsequent
issuance or transfer of any Capital Stock which
results in any such Wholly Owned Subsidiary
ceasing to be a Wholly Owned Subsidiary or (ii)
any subsequent transfer of such Debt or Preferred
Stock (other than to the Issuer or a Wholly Owned
Subsidiary) shall be deemed, in each case, to
constitute the issuance of such Debt or Preferred
Stock by the issuer thereof;
(2) Debt or Preferred Stock of a Subsidiary
issued and outstanding on or prior to the date on
which such Subsidiary was acquired by the Issuer
(other than Debt or Preferred Stock issued as
consideration in, or to provide all or any
portion of the funds utilized to consummate, the
transaction or series of related transactions
pursuant to which such Subsidiary became a
Subsidiary or was acquired by the Issuer);
(3) Debt or Preferred Stock issued and outstand-
ing on or prior to the date on which the
Securities were originally issued, other than
Debt or Preferred Stock described in clause (1)
or (2) of this Section;
(4) Non-Recourse Debt of a Non-Recourse Subsid-
iary issued after the date of this Indenture to
finance the acquisition of assets acquired after
the date hereof; and
(5) Debt or Preferred Stock issued in exchange
for, or the proceeds of which are used to refund
or refinance, Debt or Preferred Stock referred to
in the foregoing clause (2) or (3); PROVIDED,
HOWEVER, that (i) the principal amount of such
Debt or the liquidation value of such Preferred
Stock so issued shall not exceed the principal
amount or liquidation value of the Debt or
Preferred Stock so exchanged, refunded or
refinanced; (ii) the Debt or Preferred Stock so
issued (A) shall have a Stated Maturity later
than the Stated Maturity of the Debt or final
redemption date (if any) of the Preferred Stock
being exchanged, refunded or refinanced and
(B) shall have an Average Life equal to or
greater than the remaining Average Life of the
Debt or Preferred Stock being exchanged, refunded
or refinanced; (iii) the Debt so issued shall be
subordinate in right of payment to the Securities
if the Debt so exchanged, refunded or refinanced
is so subordinate; and (iv) Debt may not be
issued in exchange for, and the proceeds of such
Debt may not be used to refund or refinance,
Preferred Stock.
SECTION 4.08. LIMITATION ON RESTRICTIONS ON
DISTRIBUTIONS FROM SUBSIDIARIES. The Issuer shall not, and shall
not permit any Subsidiary to, create or otherwise cause or permit
to exist or become effective any consensual encumbrance or
restriction on the ability of any Subsidiary to (i) pay dividends
or make any other distributions on its Capital Stock or pay any
Debt or other obligation owed to the Issuer or any Subsidiary,
(ii) make any loans or advances to the Issuer or any Subsidiary
or (iii) transfer any of its property or assets to the Issuer or
any Subsidiary, except:
(1) any encumbrance or restriction pursuant to
an agreement in effect on the date hereof;
(2) any encumbrance or restriction with respect
to a Subsidiary pursuant to an agreement relating
to any Debt issued by such Subsidiary on or prior
to the date on which such Subsidiary became a
Subsidiary or was acquired by the Issuer (other
than Debt issued as consideration in, or to
provide all or any portion of the funds utilized
to consummate, the transaction or series of
related transactions pursuant to which such
Subsidiary became a Subsidiary or was acquired by
the Issuer) and outstanding on such date;
(3) any encumbrance or restriction pursuant to
an agreement effecting a refinancing of Debt
issued pursuant to an agreement referred to in
clause (1) or (2) of this Section; PROVIDED,
HOWEVER, that the encumbrances and restrictions
contained in any such refinancing agreement are
no less favorable to the Securityholders than the
encumbrances and restrictions contained in the
agreements being refinanced;
(4) any such encumbrance or restriction consist-
ing of customary nonassignment provisions in
leases governing leasehold interests to the
extent such provisions restrict the transfer of
the lease;
(5) restrictions contained in security
agreements securing Debt of a Subsidiary to the
extent such restrictions restrict the transfer of
the property subject to such security agreements;
and
(6) any such encumbrance or restriction relating
to a Non-Recourse Subsidiary.
SECTION 4.09. LIMITATION ON SALES OF ASSETS AND
SUBSIDIARY STOCK. (a) The Issuer shall not, and shall not
permit any Subsidiary to, make any Asset Disposition unless
(i) the Issuer or such Subsidiary receives consideration at the
time of such Asset Disposition at least equal to the fair market
value, as determined in good faith by the Board of Directors
(including a determination as to the value of all non-Cash
consideration), of the shares and assets subject to such Asset
Disposition, and at least 90% of the consideration therefor
received by the Issuer or such Subsidiary is in the form of Cash
or Cash equivalents and (ii) an amount equal to 100% of the Net
Available Cash from such Asset Disposition is applied by the
Issuer (or such Subsidiary, as the case may be) either (A) to the
extent the Issuer elects (or is required by the terms of any
Senior Debt), to redeem, prepay, repay or purchase Senior Debt or
Debt of a Wholly Owned Subsidiary to the extent the asset
disposed of was previously held by such Wholly Owned Subsidiary
(in each case other than Debt owed to the Issuer or an Affiliate
of the Issuer) within 60 days (or such other period as may be
required for compliance with Section 4.12 of the First Mortgage
Bonds Indenture) from the later of the date such Asset
Disposition or the receipt of such Net Available Cash; or (B) to
the extent of Net Available Cash not so applied in accordance
with clause (A), to the acquisition by the Issuer or any Wholly
Owned Subsidiary of Tangible Property of a nature or type or that
is used in a business (or in a company having property and assets
of a nature or type, or engaged in a business) similar or related
to the nature or type of the Tangible Property of, or the
business of, the Issuer and its Subsidiaries existing on the date
of such acquisition (as determined by the Board of Directors,
whose determination shall be conclusive and evidenced by a Board
Resolution); and (C) to the extent there is Net Available Cash
after application in accordance with clauses (A) and (B), to make
an Offer (as defined below) to purchase Securities pursuant to
and subject to the conditions of the following paragraph and to
effect any Offer accepted, in each case within one year from the
later of the receipt of such Net Available Cash and the date the
Offer described in Section 4.09(b) is consummated; PROVIDED,
HOWEVER, that in connection with any redemption, prepayment,
repayment or purchase of Debt pursuant to clause (A) above, the
Issuer shall cause the related loan commitment (if any) to be
permanently reduced in an amount equal to the principal amount so
redeemed, prepaid, repaid or purchased. Notwithstanding the
foregoing provisions of this Section, the Issuer and its
Subsidiaries shall only be required to apply Net Available Cash
in accordance with this Section to the extent that the aggregate
Net Available Cash from all Asset Dispositions exceeds
$25,000,000. Pending application of Net Available Cash pursuant
to this Section, such Net Available Cash shall be invested in
Permitted Investments.
(b) To the extent that there is Net Available
Cash from an Asset Disposition remaining after (i) any elected or
required payment of Senior Debt or Debt of a Wholly Owned
Subsidiary as described in Section 4.09(a)(ii)(A) and (ii) any
acquisition of Tangible Property as described in Section
4.09(a)(ii)(B), the Issuer will be required to purchase
Securities tendered pursuant to an offer by the Issuer for the
Securities (the "Offer") at a purchase price equal to not less
than 100% of their principal amount, plus accrued interest to the
Purchase Date (subject, in each case, to the right of Holders of
record on the relevant date to receive interest due on the
relevant interest Payment Date), in accordance with the
procedures (including prorating in the event of oversubscription)
set forth in Section 4.09(c). If the aggregate purchase price of
Securities tendered pursuant to the Offer is less than the Net
Available Cash allotted to the purchase of the Securities, the
Issuer shall apply the remaining Net Available Cash in accordance
with Section 4.09(a)(ii)(A) or (B). The Issuer shall not be
required to make an Offer for Securities pursuant to this Section
if the Net Available Cash available therefor (after application
of proceeds as provided in Section 4.09(a)(ii)(A) and (B)) is
less than $5,000,000 for any particular Asset Disposition (which
lesser amounts shall not be carried forward for purposes of
determining whether an Offer is required with respect to the Net
Available Cash from any subsequent Asset Disposition).
(c) (1) Promptly, and in any event within 90
days (or such other period as may be required for compliance with
Section 4.12 of the First Mortgage Bonds Indenture) after the
later of the date of each Asset Disposition as to which the
Issuer must apply Net Available Cash in accordance with
Section 4.09(a)(ii)(C) or the receipt of Net Available Cash
therefrom, the Issuer shall be obligated to deliver to the
Trustee and send, by first-class mail to each Holder, a written
notice stating that the Holder may elect to have his Securities
purchased by the Issuer either in whole or in part (subject to
prorationing as hereinafter described in the event the Offer is
oversubscribed) in integral multiples of $1,000 of principal
amount, at the applicable purchase price specified in Sec-
tion 4.09(b). The notice containing an Offer shall specify a
purchase date not less than 30 days nor more than 60 days after
the date of such notice (the "Purchase Date") and shall contain
information concerning the business of the Issuer which the
Issuer in good faith believes will enable such Holders to make an
informed decision (which at a minimum will include (i) the most
recently filed Annual Report on Form 10-K (including audited
consolidated financial statements) of the Issuer, the most recent
subsequently filed Quarterly Report on Form 10-Q and any Current
Report on Form 8-K of the Issuer filed subsequent to such
Quarterly Report, other than Current Reports describing Asset
Dispositions otherwise described in the offering materials (or
corresponding successor reports), or if the Issuer becomes no
longer subject to the Exchange Act, equivalent information,
(ii) a description of material developments in the Issuer's
business subsequent to the date of the latest of such Reports,
and (iii) if material, appropriate pro forma financial in-
formation) and all instructions and materials necessary to tender
Securities pursuant to the Offer, together with the information
contained in clause (3) of this Section 4.09(c).
(2) Not later than the date upon which written
notice of an Offer is delivered to the Trustee as provided below,
the Issuer shall deliver to the Trustee an Officers' Certificate
as to (i) the amount of the Offer (the "Offer Amount"), (ii) the
allocation of the Net Available Cash from the Asset Dispositions
pursuant to which such Offer is being made and (iii) the
compliance of such allocation with the provisions of
Section 4.09(a). On such date, the Issuer shall also irrevocably
deposit in trust with the Trustee or with a paying agent (or, if
the Issuer is acting as its own paying agent, segregate and hold
in trust) in immediately available funds an amount equal to the
Offer Amount to be held by the Trustee or with a paying agent in
trust for payment in accordance with the provisions of this
Section. Upon the expiration of the period for which the Offer
remains open (the "Offer Period"), the Issuer shall deliver to
the Trustee the Securities or portions thereof which have been
properly tendered to and are to be accepted by the Issuer. The
Trustee shall, on the Purchase Date, to the extent it has
received sufficient funds from the Issuer, mail payment to each
Holder who has surrendered Securities to the Issuer as provided
in paragraph(3) below in the amount of the purchase price. In
the event that the aggregate purchase price of the Securities
delivered by the Issuer to the Trustee is less than the Offer
Amount, the Trustee shall deliver the excess to the Issuer
immediately after the expiration of the Offer Period.
(3) Holders electing to have a Security
purchased will be required to surrender the Security, with an
appropriate form duly completed, to the Issuer at the address
specified in the notice at least ten Business Days prior to the
Purchase Date. Holders will be entitled to withdraw their
election if the Trustee or the Issuer receives not later than
three Business Days prior to the Purchase Date, a telegram,
telex, facsimile transmission or letter setting forth the name of
the Holder, the principal amount of the Security which was
delivered for purchase by the Holder and a statement that such
Holder is withdrawing his election to have such Security
purchased. If at the expiration of the Offer Period the
aggregate principal amount of Securities surrendered by Holders
exceeds the Offer Amount, the Issuer shall select the Securities
to be purchased on a pro rata basis in accordance with the
principles set forth in Section 3.04 (with such adjustments as
may be deemed appropriate by the Issuer so that only Securities
in denominations of $1,000, or integral multiples thereof, shall
be purchased). Holders whose Securities are purchased only in
part will be issued new Securities equal in principal amount to
the unpurchased portion of the Securities surrendered.
(4) At the time the Issuer delivers Securities
to the Trustee which are to be accepted for purchase, the Issuer
will also deliver an Officers' Certificate stating that such
Securities are to be accepted by the Issuer pursuant to and in
accordance with the terms of this Section. A Security shall be
deemed to have been accepted for purchase at the time the
Trustee, directly or through an agent, mails or delivers payment
therefor to the surrendering Holder.
(d) The Issuer shall comply, to the extent
applicable, with the requirements of Section 14(e) of the Ex-
change Act and any other securities laws or regulations in
connection with the repurchase of Securities pursuant to this
Section. To the extent that the provisions of any securities
laws or regulations conflict with provisions of this Section, the
Issuer shall comply with the applicable securities laws and
regulations and shall not be deemed to have breached its
obligations under this Section by virtue thereof.
SECTION 4.10. LIMITATION ON TRANSACTIONS WITH
AFFILIATES. The Issuer shall not, and shall not permit any
Subsidiary to, conduct any business or enter into any transaction
or series of related transactions (including the purchase, sale,
lease or exchange of any property or the rendering of any
service) with any Affiliate of the Issuer or any legal or
beneficial owner of five percent or more of any class of Capital
Stock of the Issuer or with any Affiliate of such owner (other
than a Wholly Owned Subsidiary of the Issuer or an employee stock
ownership plan for the benefit of the Issuer's or a Subsidiary's
employees) unless (i) the terms of such business, transaction or
series of transactions are (a) set forth in writing and (b) as
favorable to the Issuer or such Subsidiary as terms that would be
obtainable at the time for a comparable transaction or series of
related transactions in arm's-length dealings with an unrelated
third Person and (ii) the Board of Directors has, by resolution,
determined in good faith that such business or transaction or
series of related transactions meets the criteria set forth in
(i) above. This Section, however, will not prohibit any dividend
or distribution permitted under Section 4.04 hereof.
SECTION 4.11. CHANGE OF CONTROL. (a) Upon a
Change of Control, each Holder shall have the right to require
that the Issuer repurchase such Holder's Securities at a purchase
price in Cash equal to 100% of the principal amount thereof plus
accrued and unpaid interest, if any, to the date of purchase
(subject to the right of Holders of record on the relevant date
to receive interest due on the relevant interest Payment Date),
in accordance with the terms contemplated in Section 4.11(b).
(b) Within 30 days following any Change of Con-
trol, the Issuer shall mail a notice to each Holder with a copy
to the Trustee stating:
(1) that a Change of Control has occurred and
that such Holder has the right to require the
Issuer to purchase all or part of such Holder's
Securities at a purchase price in Cash equal to
100% of the principal amount thereof plus accrued
and unpaid interest, if any, to the date of
purchase (subject to the right of Holders of
record on the relevant record date to receive
interest due on the relevant interest Payment
Date);
(2) the circumstances and relevant facts regard-
ing such Change of Control (including, but not
limited to, information with respect to pro forma
historical income, cash flow and capitalization
after giving effect to such Change of Control);
(3) the repurchase date (which shall be a Busi-
ness Day no earlier than 30 days nor later than
60 days from the date such notice is mailed); and
(4) the instructions determined by the Issuer,
consistent with this Section, that a Holder must
follow in order to have its Securities purchased.
(c) Holders electing to have a Security
purchased will be required to surrender the Security, with an
appropriate election form duly completed, to the Issuer at the
address specified in the notice at least 10 Business Days prior
to the purchase date. Holders will be entitled to withdraw their
election if the Trustee or the Issuer receives not later than
three Business Days prior to the purchase date, a telegram,
telex, facsimile transmission or letter setting forth the name of
the Holder, the principal amount of the Security which was
delivered for purchase by the Holder and a statement that such
Holder is withdrawing its election to have such Security
purchased.
(d) On the purchase date, all Securities pur-
chased by the Issuer under this Section shall be delivered by the
Trustee for cancellation, and the Issuer shall pay the purchase
price plus accrued and unpaid interest, if any, to the Holders
entitled thereto.
(e) The Issuer shall comply, to the extent
applicable, with the requirements of Section 14(e) of the Ex-
change Act and any other securities laws or regulations in
connection with the repurchase of Securities pursuant to this
Section 4.11. To the extent that the provisions of any
securities laws or regulations conflict with provisions of this
Section, the Issuer shall comply with the applicable securities
laws and regulations and shall not be deemed to have breached its
obligations under this Section by virtue thereof.
SECTION 4.12. APPOINTMENT OF AGENTS. As long as
any of the Securities remain Outstanding, the Issuer will
maintain one or more agencies where notices and demands (other
than in respect of payment on the Securities) by Holders of
Securities to or upon the Issuer in respect of the Securities or
this Indenture may be served and where the Securities may be
presented for payment by the Issuer and for registration of
transfer and for exchange as in this Indenture provided. In
addition, the Issuer hereby appoints the Trustee at its Corporate
Trust Office as the paying agent of the Issuer, but the Issuer
shall have the right at any time and from time to time to vary or
terminate any such appointment as paying agent and to appoint
additional and other such agents. The Issuer will give to the
Trustee notice of the location of such additional and other
offices or agencies of the Issuer and of any change in the
location of any of such offices or agencies. No agent appointed
by the Issuer pursuant to this Section 4.12 shall be liable to
the Issuer or to the Holder of any Security except in the case of
its own negligent action, its own negligent failure to act or its
own willful misconduct.
The Issuer hereby appoints the Trustee as
Security Registrar and paying agent for the Securities. The
Corporate Trust Office of the Trustee, at the date of this
Indenture, is at 114 West 47th Street, 15th Floor, New York, New
York 10036-1532, Attention: Corporate Trust Division.
The Issuer agrees that at least one of the agen-
cies where the notices and demands referred to in this
Section 4.12 may be served will, for as long as any of the
Securities remain Outstanding, be maintained in New York, New
York. The Issuer hereby initially appoints the Trustee at its
Corporate Trust Office as its agent for receipt of such notices
and demands.
SECTION 4.13. PAYING AGENTS TO HOLD FUNDS IN
TRUST. Whenever the Issuer shall appoint a paying agent other
than the Trustee, it will cause such paying agent to execute and
deliver to the Trustee an instrument in which such agent shall
agree with the Trustee, subject to the provisions of this
Section 4.13,
(a) that it will hold all sums held by it as
such agent for the payment of the principal of,
and interest on the Securities in trust for the
benefit of the Holders of the Securities or the
Trustee and will notify the Trustee of the
receipt of sums to be so held, and
(b) that it will give the Trustee notice of any
failure by the Issuer to make any payment of the
principal of, or interest on, the Securities when
the same shall be due and payable.
SECTION 4.14. APPOINTMENT OF TRUSTEE BY ISSUER.
Whenever necessary to avoid or fill a vacancy in the office of
the Trustee, the Issuer will appoint, in the manner provided in
Section 7.08, a Trustee, so that there shall at all times be a
Trustee hereunder.
SECTION 4.15. AVAILABILITY OF INFORMATION. The
Trustee shall preserve, in as current a form as is reasonably
practicable, the most recent list available to it of the names
and addresses of the Holders of the Securities. From time to
time, whenever reasonably requested by the Trustee, but in any
event at intervals of not more than six months, the Issuer will
furnish or make available to the Trustee such information as may
be necessary to permit the Trustee to carry out its duties
hereunder. If at any time the Trustee shall not be the Security
Registrar, the Issuer will furnish or cause to be furnished to
the Trustee monthly not later than five Business Days before each
Payment Date, and at such other times as the Trustee may
reasonably request, a list in such form as the Trustee may
reasonably require of the names and addresses of Holders of
Securities as of the Record Date for such Payment Date.
SECTION 4.16. BOOKS OF ACCOUNT; INSPECTION BY
THE TRUSTEE; NOTICES; STATEMENTS AS TO COMPLIANCE. (a) The
Issuer will keep or cause to be kept proper books of record and
account, in which full, true and correct entries shall be made of
all dealings or transactions of or in relation to the Securities.
(b) The Issuer shall deliver to the Trustee
within 120 days after the end of each fiscal year of the Issuer
an Officers' Certificate stating whether or not the signers know
of any Default or Event of Default that occurred during such
period, describing such Default or Event of Default, if any, and
its status.
(c) The Issuer agrees promptly to give notice to
the Trustee of:
(i) the occurrence of any Default or Event of
Default;
(ii) any (A) default (after any applicable
grace period has expired) under any material
provision of any agreement, instrument or
undertaking to which the Issuer or a Subsidiary
is a party or by which any of them or any of
their respective properties is bound or
(B) litigation, investigation or proceeding which
may exist at any time between the Issuer or a
Subsidiary and any Person, which default or
litigation, if adversely determined, could have a
material adverse effect on the business,
operations or condition, financial or otherwise,
of the Issuer and its Subsidiaries, taken as a
whole, or any of their properties;
(iii) any litigation or proceeding affecting
the Issuer or a Subsidiary in which the amount
involved is $500,000 or more and is either not
covered by insurance or is covered by insurance
as to which the insurer has disclaimed liability
or in which injunctive or similar relief is
sought; or
(iv) a material adverse change in the
business, operations or condition, financial or
otherwise, of the Issuer and its Subsidiaries,
taken as a whole.
Each notice given pursuant to this Section 4.16(c) shall be
accompanied by an Officers' Certificate setting forth details of
the occurrence referred to therein and stating what action, if
any, the Issuer proposes to take with respect thereto.
The statements and other information furnished to
the Trustee under this Section are to be retained by the Trustee
in its files. Copies of such information pursuant to this
Section shall be provided by the Trustee upon request only to the
Holders of Securities at the Issuer's expense or their duly
designated representatives or agents, and the Trustee shall be
under no other duty with respect to the same.
Section 4.17 PAYMENT OF TAXES AND OTHER CLAIMS.
The Issuer will, and will cause each of its Subsidiaries to, pay
or discharge or cause to be paid or discharged, before any fines
or penalties are imposed, (a) all taxes, assessments and
governmental charges levied or imposed upon it or upon its
income, profits or property and (b) all lawful claims for labor,
materials and supplies which, if unpaid, might by law become a
Lien upon its property in such amount as may be material to the
Issuer; PROVIDED, HOWEVER, that the Issuer shall have the right,
at its sole cost and expense, to contest or object in good faith
to the amount or validity of any tax, assessment, charge or claim
by appropriate legal proceedings for which appropriate pro-
visions, if any, as shall be required by generally accepted
accounting principles, shall have been made, but such right shall
not be deemed or construed in any way as relieving, modifying or
extending the Issuer's covenant to pay such tax, assessment,
charge or claim at the time and in the manner provided in this
Section, unless the Issuer has given prior written notice to the
Trustee of its intent so to contest or object.
SECTION 4.18 CORPORATE EXISTENCE AND RIGHTS.
The Issuer will, and will cause each of its Subsidiaries to, do
or cause to be done all things necessary to preserve and keep in
full force and effect its existence and franchises; PROVIDED,
HOWEVER, that the Issuer shall not be required to preserve any
such franchise if it shall determine that the preservation
thereof is no longer desirable in the conduct of its business and
that the loss thereof is not disadvantageous in any material
respect to the Holders of the Securities and shall deliver to the
Trustee an Officers' Certificate to that effect; PROVIDED,
FURTHER, HOWEVER, that this Section 4.18 shall not prohibit the
merger of a Subsidiary into another Subsidiary or the merger of a
Subsidiary into the Issuer. Any determination by the Issuer
reflected in an Officers' Certificate delivered to the Trustee
pursuant to the first proviso of this Section 4.18 shall be
binding on the Trustee.
SECTION 4.19.MAINTENANCE OF PROPERTIES. The
Issuer shall cause all properties used or useful in the conduct
of its business or the business of any Subsidiary to be
maintained and kept in good condition, repair and working order
and supplied with all necessary equipment and shall cause to be
made all necessary repairs, renewals, replacements, betterments
and improvements thereof, all as in the judgment of the Issuer
may be necessary so that the business carried on in connection
therewith may be properly conducted at all times; PROVIDED,
HOWEVER, that nothing in this Section shall prevent the Issuer
from (or require the Issuer to cause any Subsidiary to avoid)
discontinuing the operation or maintenance or disposing of any of
such properties if such discontinuance or disposition is, in the
judgment of the Board of Directors or the board of directors of
the Subsidiary concerned, or of any officer (or other agent
employed by the Issuer or any Subsidiary) having been delegated
corporate authority for any such property, in each case, in good
faith, desirable in the conduct of its business or the business
of any Subsidiary.
SECTION 4.20.MAINTENANCE OF INSURANCE. The
Issuer shall, and shall cause its Subsidiaries to, keep at all
times all of their properties which are of an insurable nature
insured (including appropriate self-insurance) against loss or
damage with insurers believed by the Issuer to be responsible to
the extent that property of similar character is usually so
insured by corporations similarly situated and owning like
properties in accordance with good business practice unless such
failure to provide or cause to be provided such insurance would
not have a material adverse effect on the business affairs,
financial position, stockholder's equity or results of operations
of the Issuer and its Subsidiaries, considered on a consolidated
basis.
SECTION 4.21. CERTIFICATE AND OPINION AS TO
CONDITIONS PRECEDENT. Upon any request or application by the
Issuer to the Trustee to take any action under this Indenture,
the Issuer shall furnish to the Trustee upon the Trustee's
request:
(1) an Officers' Certificate, in form and sub-
stance reasonably satisfactory to the Trustee,
stating that, in the opinion of the signers, all
conditions precedent, if any, provided for in
this Indenture relating to the proposed action
have been complied with;
(2) an Opinion of Counsel, in form and substance
reasonably satisfactory to the Trustee, stating
that, in the opinion of such counsel, all such
conditions precedent have been complied with; and
(3) if appropriate, a certificate from Indepen-
dent Accountants.
SECTION 4.22. STATEMENTS REQUIRED IN CERTIFICATE
OR OPINION. Each certificate or opinion with regard to
compliance with a covenant or condition provided for in this
Indenture shall include:
(1) a statement that the Person making such
certificate or opinion has read such covenant or
condition;
(2) a brief statement as to the nature and scope
of the examination or investigation upon which
the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such
Person, he has made such examination or
investigation as is necessary to enable him to
express an informed opinion as to whether or not
such covenant or condition has been complied
with; and
(4) a statement as to whether or not, in the
opinion of such Person, such covenant or
condition has been complied with.
SECTION 4.23. FURTHER INSTRUMENTS AND ACTS.
Upon request of the Trustee, the Issuer will execute and deliver
such further instruments and do such further acts as may be
reasonably necessary or proper to carry out more effectively the
purpose of this Indenture.
ARTICLE FIVE
EVENTS OF DEFAULT AND REMEDIES
SECTION 5.01. EVENTS OF DEFAULT. An "Event of
Default" occurs if:
(1) the Issuer defaults in the payment of inter-
est on any Security when the same becomes due and
payable, whether or not such payment shall be
prohibited by Article 10, and such default
continues for a period of 30 days;
(2) the Issuer (i) defaults in the payment of
the principal of any Security when the same
becomes due and payable at its Stated Maturity,
upon redemption, upon declaration or otherwise or
(ii) fails to redeem or purchase Securities when
required pursuant to this Indenture or the
Securities, in either case whether or not such
payment shall be prohibited by Article 10;
(3) the Issuer fails to comply with the require-
ments for consolidation, merger or conveyance,
transfer or lease of all or of substantially all
of the Issuer's assets, as set forth in
Article Nine;
(4) the Issuer fails to observe or perform any
of its covenants or agreements set forth in the
Securities or in this Indenture (other than those
referred to in clauses (1), (2) or (3) above) and
the Default continues for a period of 30 days
after the notice specified below;
(5) Debt of the Issuer or any of its
Subsidiaries is not paid within any applicable
grace period after final maturity or is
accelerated by the holders thereof because of a
default, the total amount of such Debt unpaid or
accelerated exceeds $5,000,000 or its foreign
currency equivalent and such default continues
for 10 days after the notice specified below;
(6) the Issuer or any of its Subsidiaries pursu-
ant to or within the meaning of any Bankruptcy
Law:
(A) commences a voluntary case;
(B) consents to the entry of an order for relief
against it in an involuntary case;
(C) consents to the appointment of a custodian
of it or for any substantial part of its
property; or
(D) makes a general assignment for the benefit
of its creditors;
or takes any comparable action under any foreign
laws relating to insolvency;
(7) a court of competent jurisdiction enters an
order or decree under any Bankruptcy Law that:
(A) is for relief against the Issuer or any of
its Subsidiaries in an involuntary case;
(B) appoints a custodian of the Issuer or any of
its Subsidiaries or for any substantial part of
their respective property; or
(C) orders the winding up or liquidation of the
Issuer or any of its Subsidiaries;
or any similar relief is granted under any
foreign laws and the order or decree remains
unstayed and in effect for 60 days;
(8) any judgment or decree for the payment of
money in excess of $5,000,000 is rendered against
the Issuer or any of its Subsidiaries and is not
discharged and either (A) an enforcement
proceeding has been commenced by any creditor
upon such judgment or decree or (B) there is a
period of 60 days following such judgment or
decree during which such judgment or decree is
not discharged, waived or the execution thereof
stayed and, in the case of (B), such default
continues for 10 days after the notice specified
below.
The foregoing will constitute Events of Default
whatever the reason for any such Event of Default and whether it
is voluntary or involuntary or is effected by operation of law or
pursuant to any judgment, decree or order of any court or other
order, rule or regulation of any administrative or governmental
body.
Notwithstanding the foregoing, a Default under
clause (4), (5) or (8)(B) is not an Event of Default until the
Trustee or the Holders of at least 25% in principal amount of the
Securities notify the Issuer of the Default and the Issuer does
not cure such Default within the time specified after receipt of
such Notice. Such Notice must specify the Default, demand that
it be remedied and state that such Notice is a "Notice of
Default".
The Issuer shall deliver to the Trustee, within
30 days after the occurrence thereof, written notice in the form
of an Officers' Certificate of any event which with the giving of
notice and the lapse of time would become an Event of Default
under clause (4), (5) or (8) hereof, its status and what action
the Issuer is taking or proposes to take with respect thereto.
SECTION 5.02.ACCELERATION. If an Event of
Default (other than an Event of Default specified in Sec-
tion 5.01(6) or (7) with respect to the Issuer) occurs and is
continuing, the Trustee by notice to the Issuer, or the Holders
of at least 25% in principal amount of the Outstanding Securities
by notice to the Trustee and the Issuer may declare the unpaid
principal of and accrued interest on all the Securities and all
other amounts due hereunder or thereunder to be due and payable;
PROVIDED that upon the occurrence of an Event of Default
described in clause (6) or (7) of Section 5.01, the principal of
and accrued interest on all of the Securities shall automatically
become due and payable, without presentment, demand or other
requirements of any kind, all of which are hereby expressly
waived by the Issuer. Upon such a declaration, such principal,
interest and all other amounts shall be due and payable
immediately.
The Holders of a majority in principal amount of
the Securities by written notice to the Trustee may rescind an
acceleration and its consequences if the rescission would not
conflict with any judgment or decree, if no amounts have been
paid to the Holders as principal or interest on the Securities as
a result of such acceleration, and if all existing Events of
Default have been cured or waived pursuant to the terms of this
Indenture except nonpayment of principal or interest that has
become due solely because of acceleration.
SECTION 5.03. OTHER REMEDIES. If an Event of
Default occurs and is continuing, the Trustee may pursue any
available remedy by proceeding at law or in equity or otherwise
to collect the payment of principal of or interest on the
Securities or to enforce the performance of any provision of the
Securities or this Indenture.
The Trustee may maintain a proceeding even if it
does not possess any of the Securities or does not produce any of
them in the proceeding. A delay or omission by the Trustee or
any Holder of Securities in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or
remedy or constitute a waiver of or acquiescence in the Event of
Default. No remedy is exclusive of any other remedy. All
available remedies are cumulative.
SECTION 5.04. WAIVER OF PAST DEFAULTS. Subject
to Section 8.02, the Holders of a majority in principal amount of
the Outstanding Securities by notice to the Trustee may waive an
existing Default or Event of Default and its consequences except
(a) a Default in the payment of the principal of, or interest on
a Security or (b) a Default in respect of any covenant or
provision of this Indenture that under Section 8.02 cannot be
amended or modified without the consent of the Holder of each
Security affected thereby. When a Default or Event of Default is
waived, it is deemed cured, but no such waiver shall extend to
any subsequent or other Default or Event of Default or impair any
consequent right.
SECTION 5.05. CONTROL BY MAJORITY. The Holders
of a majority in principal amount of the Securities may direct
the time, method and place of conducting any proceeding for any
remedy available to the Trustee or of exercising any trust or
power conferred on it. However, the Trustee may refuse to follow
any direction that conflicts with law or this Indenture or,
subject to Section 7.01, that the Trustee determines is unduly
prejudicial to the rights of other Securityholders or would
involve the Trustee in personal liability.
SECTION 5.06. LIMITATION ON SUITS. A Holder of
Securities may not pursue any remedy with respect to this
Indenture or the Securities unless:
(1) the Holder gives to the Trustee written
notice stating that an Event of Default is
continuing;
(2) the Holders of at least 25% in principal
amount of the Securities make a written request
to the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee
reasonable security or indemnity against any
loss, liability or expense;
(4) the Trustee does not comply with the request
within 60 days after receipt of the request and
the offer of security or indemnity; and
(5) the Holders of a majority in principal
amount of the Securities do not give the Trustee
a direction inconsistent with the request during
such 60-day period.
A Holder may not use this Indenture to prejudice
the rights of another Holder or to obtain a preference or
priority over another Holder.
SECTION 5.07. RIGHTS OF HOLDERS TO RECEIVE PAY-
MENT. Notwithstanding any other provision of this Indenture, the
right of any Holder to receive payment of principal of and
interest on the Securities held by such Holder, on or after the
respective due dates expressed in the Securities, or to bring
suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected adversely
without the consent of such Holder.
SECTION 5.08. COLLECTION SUIT BY TRUSTEE. If an
Event of Default in payment of interest or principal specified in
Section 5.01(1) or (2) occurs and is continuing, the Trustee may
recover judgment in its own name and as trustee of an express
trust against the Issuer (or any other obligor upon the
Securities) for the whole amount of principal and interest
remaining unpaid and the amounts provided for in Section 7.07.
SECTION 5.09. TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the
claims of the Trustee and the Securityholders allowed in any
judicial proceedings relative to the Issuer, its creditors or its
property and, unless prohibited by law or applicable regulations,
may vote on behalf of the Holders in any election of a trustee in
bankruptcy or other Person performing similar functions, and any
Custodian in any such judicial proceeding is hereby authorized by
each Holder to make payments to the Trustee and, in the event
that the Trustee shall consent to the making of such payments
directly to the Holders, to pay to the Trustee any amount due it
for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and its counsel, and any
other amounts due the Trustee under Section 7.07.
SECTION 5.10. PRIORITIES. If the Trustee col-
lects any money pursuant to this Article, it shall pay out the
money in the following order:
FIRST: to the Trustee for amounts due under
Section 7.07, including payment of all
compensation, expenses and liabilities incurred,
and all advances made, by the Trustee and the
costs and expenses of collection;
SECOND: to Securityholders for the payment of
the whole amount then owing and unpaid upon the
Securities for principal and interest; and in
case such moneys shall be insufficient to pay in
full the whole amount so due and unpaid upon the
Securities, then to the payment of such principal
and interest, without preference or priority of
principal over interest, or interest over
principal, or of any Interest Payment over any
other Interest Payment, or of any Securities over
any other Securities, ratably to the aggregate of
such principal and interest;
THIRD: to the payment of any remaining Obliga-
tions; and
FOURTH: the balance, if any, to the Issuer, its
successors or assigns or to whomsoever may be
lawfully entitled to receive the same, or as a
court of competent jurisdiction may determine.
The Trustee may fix a record date and payment
date for any payment to Securityholders pursuant to this Section.
At least 15 days before such record date, the Issuer shall mail
to each Securityholder a notice that states the record date, the
payment date and amount to be paid.
SECTION 5.11. UNDERTAKING FOR COSTS. In any
suit for the enforcement of any right or remedy under this Inden-
ture or in any suit against the Trustee for any action taken or
omitted by it as Trustee, a court in its discretion may require
the filing by any party litigant in the suit of an undertaking to
pay the costs of the suit, and the court in its discretion may
assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in the suit, having due regard to the
merits and good faith of the claims or defenses made by the party
litigant. This Section does not apply to a suit by the Trustee,
a suit by a Holder pursuant to Section 5.07 or a suit by Holders
of more than 10% in aggregate principal amount of the Securities
then Outstanding.
SECTION 5.12. WAIVER OF STAY OR EXTENSION LAWS.
The Issuer (to the extent it may lawfully do so) shall not at any
time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law
wherever enacted, now or at any time hereafter in force, which
may affect the covenants or the performance of this Indenture;
and the Issuer (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and
shall not hinder, delay or impede the execution of any power
herein granted to the Trustee, but shall suffer and permit the
execution of every such power as though no such law had been
enacted.
ARTICLE SIX
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 6.01. DISCHARGE OF LIABILITY ON SECURI-
TIES; DEFEASANCE. When (i) the Issuer delivers to the Trustee
all Outstanding Securities (other than Securities replaced
pursuant to Section 2.07) for cancellation or (ii) all
Outstanding Securities have become due and payable and the Issuer
irrevocably deposits or causes to be deposited with the Trustee
funds sufficient to pay at maturity all Outstanding Securities,
including interest thereon (other than Securities replaced
pursuant to Section 2.07) solely for the benefit of the Holders
for such purpose, and if in either case the Issuer pays all other
Obligations, then this Indenture shall, subject to
Sections 6.01(c) and 6.06, cease to be of further effect. The
Trustee shall acknowledge satisfaction and discharge of this
Indenture on demand of the Issuer accompanied by an Officers'
Certificate and an Opinion of Counsel and at the cost and expense
of the Issuer.
(b) Subject to Sections 6.01(c), 6.02 and 6.06,
the Issuer at any time may terminate (i) all its obligations
under the Securities and this Indenture ("legal defeasance
option") or (ii) its obligations under Sections 4.01, 4.03, 4.04,
4.05, 4.06, 4.07, 4.08, 4.09, 4.10, 4.11, 4.16 (with respect to
clauses (a) and (c)(ii) through (c)(iv)), 4.17, 4.18 (as to
Subsidiaries), 9.01 (iii) and 9.01(iv) and the operation of
5.01(4) (with respect to those provisions of Article Four cited
in this clause (ii)) 5.01(5), 5.01(6) (with respect to any
Subsidiary), 5.01(7) (with respect to any Subsidiary) and 5.01(8)
("covenant defeasance option"). The Issuer may exercise its
legal defeasance option notwithstanding its prior exercise of its
covenant defeasance option.
If the Issuer exercises its legal defeasance
option, payment of the Securities may not be accelerated because
of an Event of Default. If the Issuer exercises its covenant
defeasance option, payment of the Securities may not be
accelerated because of an Event of Default specified in 5.01(4)
(with respect to those provisions of Article Four cited in
clause (ii) above), 5.01(5), 5.01(6) (with respect to any
Subsidiary), 5.01(7) (with respect to any Subsidiary) or 5.01(8)
or because of the failure of the Issuer to comply with
Section 9.01(iii) or 9.01(iv).
Upon satisfaction of the conditions set forth
herein and upon request of the Issuer, the Trustee shall
acknowledge in writing the discharge of those obligations that
the Issuer terminates.
(c) Notwithstanding clauses (a) and (b) above,
the Issuer's obligations in Sections 2.06, 2.07, 2.09, 4.12,
4.13, 4.14, 4.15, 4.16 (with respect to clauses (b) and (c)(i)),
4.19, 4.20, 6.04, 6.05, 6.06, 7.07 and 7.08, shall survive until
the Securities have been paid in full. Thereafter, the Issuer's
obligations in Sections 6.04, 6.05 and 7.07 shall survive.
SECTION 6.02. CONDITIONS TO DEFEASANCE. The
Issuer may exercise its legal defeasance option or its covenant
defeasance option only if:
(1) the Issuer irrevocably deposits in trust
with the Trustee Cash or U.S. Government
Obligations for the payment of principal of, and
interest on, the Securities to the date of
maturity or redemption, as the case may be;
(2) the Issuer delivers to the Trustee a
certificate from a nationally recognized firm of
independent accountants expressing their opinion
that the payments of principal and interest when
due and without reinvestment on the deposited
U.S. Government Obligations plus any deposited
Cash without investment will provide Cash at such
times and in such amounts (but, in the case of
the legal defeasance option only, not more than
such amounts) as will be sufficient to pay
principal and interest when due on all Securities
to maturity or redemption, as the case may be;
(3) 123 days pass after the deposit is made and
during the 123-day period no Default specified in
Section 5.01(6) or (7) with respect to the Issuer
occurs which is continuing at the end of the
period;
(4) no Default has occurred and is continuing on
the date of such deposit and after giving effect
thereto;
(5) the deposit does not constitute a default
under any other agreement binding on the Issuer;
(6) the Issuer delivers to the Trustee an
Opinion of Counsel to the effect that the trust
resulting from the deposit does not constitute,
or is qualified as, a regulated investment
company under the Investment Company Act of 1940;
(7) in the case of the legal defeasance option,
the Issuer shall have delivered to the Trustee an
Opinion of Counsel stating that (i) the Issuer
has received from, or there has been published
by, the Internal Revenue Service a ruling, or
(ii) since the date of this Indenture there has
been a change in the applicable federal income
tax law, in either case to the effect that, and
based thereon such Opinion of Counsel shall
confirm that, the Securityholders will not
recognize income, gain or loss for federal income
tax purposes as a result of such defeasance and
will be subject to federal income tax on the same
amounts, in the same manner and at the same time
as would have been the case if such defeasance
had not occurred;
(8) in the case of the covenant defeasance op-
tion, the Issuer shall have delivered to the
Trustee an Opinion of Counsel to the effect that
the Securityholders will not recognize income,
gain or loss for federal income tax purposes as a
result of such covenant defeasance and will be
subject to federal income tax on the same
amounts, in the same manner and at the same time
as would have been the case if such covenant
defeasance had not occurred; and
(9) the Issuer delivers to the Trustee an Of-
ficers' Certificate and an Opinion of Counsel,
each stating that all conditions precedent to the
defeasance and discharge of the Securities as
contemplated by this Article 6 have been complied
with.
Before or after a deposit, the Issuer may make
arrangements satisfactory to the Trustee for the redemption of
Securities at a future date in accordance with Article 3.
SECTION 6.03. APPLICATION OF TRUST MONEY. The
Trustee shall hold in trust Cash or U.S. Government Obligations
deposited with it pursuant to this Article 6. It shall apply the
deposited Cash and the Cash from U.S. Government Obligations
through the paying agent and in accordance with this Indenture to
the payment of principal of and interest on the Securities.
SECTION 6.04. REPAYMENT TO ISSUER. The Trustee
and the paying agent shall promptly turn over to the Issuer upon
request any excess Cash or securities held by them at any time.
Subject to any applicable abandoned property law,
the Trustee and the paying agent shall pay to the Issuer upon
request any Cash held by them for the payment of principal or
interest that remains unclaimed for two years, and, thereafter,
Securityholders entitled to the Cash must look to the Issuer for
payment as general creditors.
SECTION 6.05. INDEMNITY FOR GOVERNMENT OBLIGA-
TIONS. The Issuer shall pay and shall indemnify the Trustee
against any tax, fee or other charge imposed on or assessed
against the Trustee with respect to deposited U.S. Government
Obligations or the principal and interest received on such U.S.
Government Obligations.
SECTION 6.06. REINSTATEMENT. If the Trustee or
paying agent is unable to apply any Cash or U.S. Government
Obligations in accordance with this Article 6 by reason of any
legal proceeding or by reason of any order or judgment of any
court or governmental authority enjoining, restraining or
otherwise prohibiting such application, the Issuer's obligations
under this Indenture and the Securities shall be revived and
reinstated as though no deposit had occurred pursuant to this
Article 6 until such time as the Trustee or paying agent is
permitted to apply all such Cash or U.S. Government Obligations
in accordance with this Article 6; PROVIDED, HOWEVER, that, if
the Issuer has made any payment of interest on or principal of
any Securities because of the reinstatement of its obligations,
the Issuer shall be subrogated to the rights of the Holders of
such Securities to receive such payment from the Cash or U.S.
Government Obligations held by the Trustee or paying agent.
ARTICLE SEVEN
CONCERNING THE TRUSTEE
SECTION 7.01. DUTIES OF TRUSTEE. (a) If an
Event of Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this
Indenture and use the same degree of care and skill in its
exercise as a prudent Person would exercise or use under the
circumstances in the conduct of such Person's own affairs.
(b) Except during the continuance of an Event of
Default:
(1) the duties of the Trustee shall be
determined solely by the express provisions of
this Indenture, and the Trustee need perform only
those duties that are specifically set forth in
this Indenture and no others, and no implied
covenants or obligations shall be read into this
Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of
the statements and the correctness of the
opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming
to the requirements of this Indenture. However,
the Trustee shall examine the certificates and
opinions to determine whether or not they conform
to the requirements of this Indenture.
(c) The Trustee may not be relieved from
liability for its own negligent action, its own negligent failure
to act or its own willful misconduct, except that:
(1) this paragraph does not limit the effect of
paragraph (b) of this Section 7.01;
(2) the Trustee shall not be liable for any
error of judgment made in good faith by a Trust
Officer unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts;
and
(3) the Trustee shall not be liable with respect
to any action it takes or omits to take in good
faith in accordance with a direction received by
it pursuant to Sections 5.02, 5.04 or 5.05.
(d) Every provision of this Indenture that in
any way relates to the Trustee is subject to paragraphs (a), (b)
and (c) of this Section.
(e) The Trustee shall not be liable for interest
on any money received by it except as the Trustee may agree in
writing with the Issuer. Money held by the Trustee in trust
hereunder need not be segregated from other funds except to the
extent required by law.
SECTION 7.02. RIGHTS OF TRUSTEE. (a) The
Trustee may rely on any document believed by it to be genuine and
to have been signed or presented by the proper Person. The
Trustee need not investigate any fact or matter stated in the
document.
(b) Before the Trustee acts or refrains from
acting, it may require an Officers' Certificate or an Opinion of
Counsel or both. The Trustee shall not be liable for any action
it takes or omits to take in good faith in reliance on the
Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall
not be responsible for the misconduct or negligence of any agent
appointed with due care.
(d) The Trustee shall not be liable for any
action it takes or omits to take in good faith which it believes
to be authorized or within its rights or powers; PROVIDED that
the Trustee's conduct does not constitute negligence.
(e) The Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Indenture at the request or direction of any of the Holders
pursuant to this Indenture, unless such Holders shall have
offered the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in
compliance with such work or direction.
(f) Unless otherwise specifically provided in
this Indenture, any demand, request, direction or notice from the
Issuer shall be sufficient if signed by an Officer of the Issuer.
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE. The
Trustee in its individual or any other capacity may become the
owner or pledgee of Securities and may otherwise deal with the
Issuer or its Affiliates with the same rights it would have if it
were not Trustee. Any paying agent, Security Registrar or
Security Co-Registrar may do the same with like rights. However,
the Trustee must comply with Sections 7.10 and 7.11.
SECTION 7.04. TRUSTEE'S DISCLAIMER. The Trustee
shall not be responsible for and makes no representation as to
the validity, adequacy or enforceability of this Indenture or the
Securities. The Trustee shall not be accountable for the
Issuer's use of proceeds from the Securities or any money paid to
the Issuer or upon the Issuer's direction under any provision of
this Indenture, the Trustee shall not be responsible for the use
or application of any money received from any paying agent other
than the Trustee, and the Trustee shall not be responsible for
any statement or recital herein or in the Securities or any other
document in connection with the sale of Securities or pursuant to
this Indenture other than its certificate of authentication.
SECTION 7.05. NOTICE OF DEFAULTS. If a Default
or an Event of Default occurs and is continuing and if it is
known to the Trustee, the Trustee shall mail to each Holder of
Securities, as their names and addresses appear on the Security
Register, notice of the Default or Event of Default within 90
days after it occurs. Except in the case of a Default in payment
of principal of, or interest on, any Security, the Trustee may
withhold such notice if and so long as a committee of its Trust
Officers in good faith determines that the withholding of such
notice is in the interests of Holders of Securities. The Trustee
shall not be deemed to have knowledge of any Default or Event of
Default except (i) any Event of Default occurring pursuant to
Section 5.01(1) or Section 5.01(2) of this Indenture, if the
Trustee is then acting as paying agent, or (ii) any Default or
Event of Default of which a Trust Officer shall have received
written notification from the Issuer or a Securityholder, and
such notification shall not be deemed to include receipt of
information contained in any report or other document furnished
under Section 4.03 of this Indenture.
SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS. As
promptly as practicable after each May 15 beginning with the May
15 following the date of this Indenture, and in any event prior
to July 15 in each year, and within 12 months from the date the
prior report hereunder was transmitted to the Holders of
Securities, the Trustee shall mail to each Holder of Securities
in accordance with TIA section 313(c), a brief report dated as of
May 15 that complies with TIA section 313(a) (but if no event
described in TIA section 313(a) has occurred within the twelve
months preceding the reporting date, no report need be
transmitted). The Trustee also shall comply with TIA
section 313(b).
A copy of each report at the time of its mailing
to Holders of Securities shall be filed with the SEC and each
stock exchange, if any, on which, to the Trustee's actual
knowledge, the Securities are listed; the Issuer agrees to notify
promptly the Trustee whenever the Securities become listed on any
stock exchange and of any delisting thereof.
SECTION 7.07. COMPENSATION AND INDEMNITY. The
Issuer shall pay to the Trustee from time to time reasonable
compensation for its services. The Trustee's compensation shall
not be limited by any law on compensation of a trustee of an
express trust. The Issuer shall reimburse the Trustee upon the
Trustee's request, in addition to compensation for its services
for all reasonable out-of-pocket expenses, disbursements and
advances incurred or made by it, including, without limitation,
the reasonable compensation and expenses, disbursements and
advances of the Trustee's agents and counsel. The Issuer shall
indemnify the Trustee against any loss, liability or expense
incurred by it without negligence or bad faith on its part in
connection with the acceptance or the administration of this
trust and the performance of its duties hereunder, including the
costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any
of its powers or duties hereunder. The Trustee shall notify the
Issuer promptly of any claim for which it may seek indemnity.
However, failure by the Trustee to so promptly notify the Issuer
shall not relieve the Issuer of its obligations under this
paragraph except to the extent such failure shall have materially
prejudiced the Issuer. The Issuer shall defend the claim and the
Trustee shall cooperate in the defense. If the Trustee is
advised by counsel that it may have available to it defenses
which are in conflict with any defenses available to the Issuer,
then the Issuer may have separate counsel and the Issuer shall
pay the reasonable fees and expenses of such counsel. The Issuer
need not pay for any settlement made without its consent, which
consent shall not be unreasonably withheld. The Issuer need not
reimburse any expense or indemnify against any loss or liability
incurred by the Trustee through negligence or bad faith.
To secure the Issuer's payment obligations in
this Section 7.07, the Trustee shall have a Lien prior to the
Securities on all Cash or property held or collected by the
Trustee, except that held in trust to pay principal and interest
on particular Securities.
The Issuer's payment obligations pursuant to this
Section 7.07 shall survive the discharge of this Indenture and
the resignation or removal of the Trustee. When the Trustee
incurs expenses or renders services after the occurrence of an
Event of Default specified in subsection 5.01(6) or (7), the
expenses and compensation for the services are intended to
constitute expenses of administration under the Bankruptcy Law.
SECTION 7.08. REPLACEMENT OF TRUSTEE. The
Trustee may resign and be discharged from the trust created
hereby by so notifying the Issuer. The Holders of a majority in
aggregate principal amount of the Outstanding Securities may
remove the Trustee by so notifying the Trustee and the Issuer and
may appoint a successor Trustee. The Issuer may remove the
Trustee if:
(1) the Trustee fails to comply with Sec-
tion 7.10;
(2) the Trustee is adjudged bankrupt or insol-
vent;
(3) a receiver or other public officer takes
charge of the Trustee or its property; or
(4) the Trustee otherwise becomes incapable of
acting.
If the Trustee resigns or is removed or if a
vacancy exists in the office of Trustee for any reason, then,
unless the Holders of Securities have appointed a Successor
Trustee as provided above, the Issuer shall promptly appoint a
successor Trustee.
A successor Trustee shall deliver a written
acceptance of its appointment to the retiring Trustee and to the
Issuer. Immediately after receiving such acceptance, the
retiring Trustee shall transfer all property held by it as
Trustee to the successor Trustee, provided all sums owing to the
Trustee hereunder have been paid and subject to the Lien provided
for in Section 7.07, the resignation or removal of the retiring
Trustee shall then become effective, and the successor Trustee
shall have all the rights, powers and duties of the Trustee under
this Indenture. A successor Trustee shall mail notice of its
succession to each Holder of Securities. Notwithstanding
replacement of the Trustee pursuant to this Section, the Issuer's
obligations under Section 7.07 hereof shall continue for the
benefit of the retiring Trustee.
If a successor Trustee does not take office
within 60 days after the retiring Trustee resigns or is removed,
the retiring Trustee, the Issuer or the Holders of a majority in
aggregate principal amount of the Outstanding Securities may
petition any court of competent jurisdiction for the appointment
of a successor Trustee.
If the Trustee fails to comply with Section 7.10,
any Holder of Securities may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment
of a successor Trustee. In determining whether the Trustee has
conflicting interests as defined in TIA Section 310(b)(1), the
provisions contained in the proviso to Section 310(b)(1) shall be
deemed incorporated herein.
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER. If
the Trustee consolidates with, merges or converts into, or
transfers all or substantially all its corporate trust business
or assets to, another corporation, the resulting, surviving or
transferee corporation without any further act shall be the
successor Trustee.
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION.
The Trustee shall at all times satisfy the requirements of TIA
sections 310(a)(1) and (a)(2). The Trustee shall have a combined
capital and surplus of at least $50,000,000 as set forth in its
most recent published annual report of condition. The Trustee
shall comply with TIA section 310(b) during the period of time
required thereby.
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS
AGAINST CORPORATION. The Trustee shall comply with
TIA section 311(a), excluding any creditor relationship listed in
TIA section 311(b). A Trustee who has resigned or been removed
shall be subject to TIA section 311(a) to the extent indicated
therein.
ARTICLE EIGHT
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 8.01. WITHOUT CONSENT OF HOLDERS. The
Issuer and the Trustee may amend or supplement this Indenture or
the Securities without notice to or consent of any Holder of
Securities:
(1) to cure any ambiguity, omission, defect or
inconsistency;
(2) to comply with Article 9;
(3) to provide for uncertificated Securities in
addition to or in place of certificated
Securities;
(4) to make any change that does not adversely
affect the rights of any Holder of Securities; or
(5) to comply with any requirement of the SEC in
connection with the qualification of this
Indenture under the TIA.
After an amendment under this Section becomes
effective, the Issuer shall mail to Securityholders a notice
briefly describing such amendment. Failure to mail such notice
to all Securityholders, or any defect therein, shall not impair
or affect the validity of an amendment under this Section.
SECTION 8.02. WITH CONSENT OF HOLDERS. The
Issuer may amend or supplement this Indenture or the Securities
without notice to any Holder but with the written consent of the
Holders of at least a majority in aggregate principal amount of
the Outstanding Securities. The Holders of a majority in
aggregate principal amount of the Outstanding Securities may
waive any past default or compliance by the Issuer with any
provision of this Indenture or the Securities without notice to
any Holder. However, without the consent of each Holder
affected, an amendment or supplement to this Indenture or waiver
may not:
(1) reduce the amount of Securities whose
Holders must consent to an amendment, supplement
or waiver;
(2) reduce the rate of or extend the time for
payment of interest on any Security;
(3) reduce the principal of or extend the fixed
maturity of any Security;
(4) make any Security payable in money other
than that stated in the Security;
(5) make any change in Article 10 that adversely
affects the rights of any Securityholder;
(6) change the time at which or circumstances
under which any Securities may be redeemed or re-
purchased;
(7) impair the right of any Securityholder to
receive payment of principal of and interest on
such Securityholders' Securities on or after the
due dates thereof or to institute suit for the
enforcement of any payment on or with respect to
such holders' securities;
(8) make any change in Section 5.04 or 5.07 or
this Section; or
(9) waive any Default in the payment of
principal of or interest on any Security.
It shall not be necessary for the consent of the
Holders of the Securities under this Section 8.02 to approve the
particular form of any proposed amendment or supplement, but it
shall be sufficient if such consent shall approve the substance
thereof.
An amendment under this Section may not make any
change that adversely affects the rights under Article 10 of any
holder of Superior Debt then outstanding unless the holders of
the issue required pursuant to its terms consent to such change.
After an amendment under this Section becomes
effective, the Issuer shall mail to Holders a notice briefly
describing such amendment. The failure to mail such notice to
all Holders shall not affect the validity of an amendment under
this Section.
SECTION 8.03. COMPLIANCE WITH TRUST INDENTURE
ACT. Every amendment to or supplement of this Indenture executed
pursuant to this Article 8 shall comply with the TIA as then in
effect.
SECTION 8.04. REVOCATION AND EFFECT OF CONSENTS.
A consent to an amendment, supplement or waiver by a Holder of a
Security shall bind such Holder and every subsequent Holder of
that Security or portion of the Security that evidences the same
debt as the consenting Holder's Security, even if notation of the
consent is not made on the Security. However, any such Holder or
subsequent Holder may revoke the consent as to such Holder's
Security or portion of the Security if the Trustee receives the
notice of revocation before the date the amendment, supplement or
waiver becomes effective. After an amendment, supplement or
waiver becomes effective, it shall bind every Holder unless it
makes a change described in clauses (1) through (6) of
Section 8.02. In that case the amendment, supplement or waiver
shall bind each Holder of a Security who has consented to it and
every subsequent Holder of a Security or portion of a Security
that evidences the same Debt as the consenting Holder's Security.
The Issuer may, but shall not be obligated to,
fix a record date for the purpose of determining the Security-
holders entitled to give their consent or take any other action
described above or required or permitted to be taken pursuant to
this Indenture. If a record date is fixed, then notwithstanding
the immediately preceding paragraph, those Persons or
Securityholders at such record date (or their duly designated
proxies), and only those Persons, shall be entitled to give such
consent or to revoke any consent previously given or to take any
such action, whether or not such Persons continue to be Holders
after such record date. No such consents shall be valid or
effective for more than 120 days after such record date.
SECTION 8.05. NOTATION ON OR EXCHANGE OF SECURI-
TIES. If an amendment, supplement or waiver changes the terms of
a Security, the Trustee may require the Holder of the Security to
deliver it to the Trustee. The Trustee may place an appropriate
notation on the Security regarding the changed terms and return
it to the Holder. Alternatively, if the Issuer or the Trustee so
determines, the Issuer in exchange for the Security shall issue
and the Trustee shall authenticate a new Security that reflects
the changed terms. Failure to make an appropriate notation or
issue a new Security shall not affect the validity and effect of
such amendment, supplement or waiver.
SECTION 8.06. TRUSTEE TO SIGN AMENDMENTS. The
Trustee shall sign any amendment, supplement or waiver authorized
pursuant to this Article if the amendment, supplement or waiver
does not adversely affect the rights, duties, liabilities or
immunities of the Trustee. If it does, the Trustee may but need
not sign it. In signing such amendment, supplement or waiver the
Trustee shall be entitled to receive, and (subject to
Section 7.01) shall be fully protected in relying upon, an
Officers' Certificate and an Opinion of Counsel stating that such
amendment, supplement or waiver is authorized or permitted by
this Indenture and that it is not inconsistent herewith and that
it will be valid and binding on the Issuer in accordance with its
terms.
SECTION 8.07. WAIVER OF COMPLIANCE BY HOLDERS.
Anything in this Indenture to the contrary notwithstanding, any
of the acts which the Issuer is required to do or is prohibited
from doing by any of the provisions of this Indenture may, to the
extent that such provisions might be changed or eliminated by a
supplemental indenture pursuant to Section 8.02 hereof upon
consent of the Holders of a majority in aggregate principal
amount of the Securities at the time Outstanding, be omitted or
done by the Issuer if there is obtained the prior written consent
thereto of the Holders of a majority of the aggregate principal
amount of the Securities at the time Outstanding, or the prior
written waiver of compliance with any such provision or
provisions signed by such Holders. The Issuer agrees promptly to
file with the Trustee a duplicate original of each such consent
or waiver.
ARTICLE NINE
SUCCESSOR COMPANY
SECTION 9.01. WHEN ISSUER MAY MERGE OR TRANSFER
ASSETS. The Issuer shall not consolidate with or merge with or
into, or convey, transfer or lease all or substantially all its
assets to, any Person, unless:
(i) the resulting, surviving or transferee
Person (if not the Issuer) shall be a Person
organized and existing under the laws of the
United States of America, any state thereof or
the District of Columbia and such Person shall
expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in
form satisfactory to the Trustee, all the
obligations of the Issuer under the Securities
and this Indenture;
(ii) immediately prior to and after giving
effect to such transaction (and treating any Debt
which becomes an obligation of the resulting,
surviving or transferee Person or any Subsidiary
as a result of such transaction as having been
issued by such Person or such Subsidiary at the
time of such transaction), no Default shall have
occurred and be continuing;
(iii) immediately after giving effect to such
transaction, the Consolidated EBITDA Coverage
Ratio of the Successor Company is at least 1:1;
provided, however, that, if the Consolidated
EBITDA Coverage Ratio of the Issuer before giving
effect to such transaction is within the range
set forth in column (A) below, then the
Consolidated EBITDA Coverage Ratio of the
Successor Company, as the case may be, shall be
at least equal to the lesser of (1) the ratio
determined by multiplying the percentage set
forth in column (B) below by the Consolidated
EBITDA Coverage Ratio prior to such transaction
and (2) the ratio set forth in column C below:
(A) (B)(C)
1.11:1 to 1.99:190%1.50:1
2.00:1 to 2.99:180%2.10:1
3.00:1 to 3.99:170%2.40:1
4.00:1 or more 60%2.50:1
(iv) immediately after giving effect to such
transaction, the resulting, surviving or
transferee Person shall have Consolidated Net
Worth in an amount which is not less than the
Consolidated Net Worth of the Issuer prior to
such transaction; and
(v) the Issuer shall have delivered to the
Trustee an Officers' Certificate and an Opinion
of Counsel prior to the consummation of such
transaction, each stating that such
consolidation, merger or transfer and such
supplemental indenture (if any) comply with this
Indenture.
The resulting, surviving or transferee Person
shall be the successor Issuer and shall succeed to, and be
substituted for, and may exercise every right and power of, the
Issuer under this Indenture, but the predecessor Issuer in the
case of a conveyance, transfer or lease shall not be released
from the obligation to pay the principal of and interest on the
Securities.
ARTICLE TEN
SUBORDINATION
SECTION 10.01. AGREEMENT TO SUBORDINATE. The
Issuer agrees, and each Holder by accepting a Security agrees,
that the Debt evidenced by the Securities is subordinated in
right of payment, to the extent and in the manner provided in
this Article 10, to the prior payment of all Superior Debt and
that the subordination is for the benefit of the holders of
Superior Debt, but the Securities shall in all respects rank pari
passu with all other Senior Subordinated Debt of the Issuer. The
Securities shall rank senior to all existing and future Debt of
the Issuer which is neither Superior Debt nor Senior Subordinated
Debt and only Debt of the Issuer which is Superior Debt shall
rank senior to the Securities in accordance with the provisions
set forth herein.
SECTION 10.02. CERTAIN DEFINITIONS.
"Representatives" means any of United States National Bank of
Oregon, the Bond Trustee and any other trustee, agent or repre-
sentative for the holders of Superior Debt, and "Representative"
means any of them.
"Superior Debt" means (a) the principal of, and premium
(if any) and accrued and unpaid interest (including interest
accruing on or after the filing of any petition in bankruptcy or
for reorganization relating to the Issuer whether or not a claim
for postfiling interest is allowed in such proceeding) on (i)
indebtedness of the Issuer for money borrowed, whether
outstanding on the date of execution of this Indenture or
thereafter created, incurred or assumed, together with all
amounts for fees and expenses due to the agent banks under the
New Credit Agreement and other Representatives, and all
reimbursement and other contingent obligations with respect to
letters of credit issued in accordance with the New Credit
Agreement, (ii) guarantees by the Issuer of indebtedness for
money borrowed by any other Person, whether outstanding on the
date of execution of this Indenture or thereafter created,
incurred or assumed, (iii) obligations of the Issuer under any
agreement to lease, or any lease of, any real or personal
property, which in accordance with generally accepted accounting
principles, is classified upon the Issuer's consolidated balance
sheet as a liability, whether outstanding on the date of this
Indenture or thereafter created, incurred or assumed, and (iv)
indebtedness evidenced by notes, debentures, bonds or other
instruments of indebtedness for the payment of which the Issuer
is responsible or liable, by guarantees or otherwise, whether
outstanding of this Indenture or thereafter created, incurred or
assumed and (b) modifications, renewals, extensions, replacements
and refundings of any such indebtedness, obligations or
guarantees; unless, in the instrument creating or evidencing the
same or pursuant to which the same is outstanding, it is provided
that such indebtedness, obligations or guarantees, or such modi-
fications, renewals, extensions or refundings thereof, are not
superior in right of payment to the Securities; PROVIDED,
HOWEVER, that Superior Debt shall not be deemed to include (1)
any obligation of the Issuer to any Subsidiary, (2) any accounts
payable or other liability to trade creditors arising in the
ordinary course of business (including guarantees thereof or
instruments evidencing such liabilities), (3) any indebtedness,
guarantee or obligation of the Issuer of the type described in
clause (a) or (b) above which is subordinate or junior in any
respect to any other indebtedness, guarantee or obligation of the
Issuer or (4) the portion of any Debt issued in violation of
section 4.05 or 4.06 hereof.
"Senior Subordinated Debt" means the Securities and any
other indebtedness, guarantee or obligation of the Issuer of the
type described in clause (a) or (b) in the definition of Superior
Debt, which by its terms or the terms of the instrument creating
or evidencing the same or pursuant to which the same is
outstanding contains for the benefit of the holders of Superior
Debt provisions no less favorable to such holders than the
subordination provisions of the Securities and ranks PARI PASSU
with the Securities. Any indebtedness, guarantee or obligation
of the Issuer which is subordinate or junior in ranking in any
respect to any other such indebtedness, guarantee or obligation
will be subordinate to Senior Subordinated Debt unless the in-
strument creating or evidencing the same or pursuant to which the
same is outstanding specifically provides that such indebtedness,
guarantee or obligation is to rank PARI PASSU with other Senior
Subordinated Debt.
SECTION 10.03. LIQUIDATION, DISSOLUTION, BANK-
RUPTCY. Upon any distribution to creditors of the Issuer in a
liquidation or a total or partial dissolution of the Issuer or in
a bankruptcy, reorganization, insolvency, receivership or similar
proceeding relating to the Issuer or its property:
(1) holders of Superior Debt shall be entitled
to receive payment in full of the Superior Debt
before Holders shall, subject to Section 10.14,
be entitled to receive any payment of principal
of, or interest on, the Securities (other than
shares of stock or subordinated indebtedness
provided by a plan of reorganization or
adjustment which does not alter the rights of
holders of Superior Debt); and
(2) until the Superior Debt is paid in full, any
distribution to which Holders would be entitled
but for this Article 10 shall be made to holders
of Superior Debt as their interests may appear,
except that Holders may receive securities that
are subordinated to Superior Debt to at least the
same extent as the Securities.
For purposes of this Section, "payment in full", as used with
respect to Superior Debt, means the receipt of cash or securities
(taken at their fair value at the time of receipt, determined as
hereinafter provided) of the principal amount of the Superior
Debt and premium, if any, and interest thereon to the date of
such payment. "Fair value" means (a) if the securities are
quoted on a nationally recognized securities exchange, the
closing price on the day such securities are received or, if
there are no sales reported on that day, the reported closing bid
price on that day, and (b) if the securities are not so quoted, a
price determined by a nationally recognized investment banking
house selected by the Holders and the holders of Superior Debt
receiving such securities, such price to be determined as of the
date of receipt of such securities by the holders of Superior
Debt.
SECTION 10.04. DEFAULT ON SUPERIOR DEBT. The
Issuer may not pay principal of or interest on, the Securities or
make any deposit pursuant to Section 6.01 and may not repurchase,
redeem or otherwise retire any Securities if (i) any Superior
Debt is not paid when due and such default is not cured or waived
or (ii) any other default on Superior Debt occurs and the
maturity of such Superior Debt is accelerated in accordance with
its terms and such acceleration is not rescinded. In addition,
during the continuance of an event of default with respect to any
Superior Debt pursuant to which the maturity thereof may be
accelerated immediately without further notice (except such
notice as may be required to effect such acceleration) or the
expiration of any applicable grace periods, upon the receipt by
the Issuer and the Trustee of written notice thereof from or on
behalf of the holders of a majority in aggregate principal amount
of such Superior Debt, the Issuer may not for a period of 180
days from the receipt of such notice take any action which would
be prohibited by the first sentence of this Section if any
Superior Debt had not been paid; PROVIDED, HOWEVER, that nothing
in this Section shall have any effect on the rights of the
Holders to accelerate the maturity of the Securities pursuant to
Section 5.02; and PROVIDED FURTHER, that nothing in this sentence
shall prevent payment by the Issuer on the Securities after 120
days have passed following notice to the holders of Superior Debt
of such acceleration pursuant to Section 10.05.
SECTION 10.05. ACCELERATION OF PAYMENT OF SECURITIES.
If payment of the Securities is accelerated because of an Event
of Default, the Issuer or the Trustee shall promptly notify
holders of Superior Debt of the acceleration. The Issuer may not
pay the Securities until 120 days after the acceleration occurs
and, thereafter, may pay the Securities only if this Article 10
otherwise permits the payment at that time.
SECTION 10.06. WHEN DISTRIBUTION MUST BE PAID OVER.
If a distribution is made to Holders that because of this Article
10 should not have been made to them, the Holders who receive the
distribution shall hold it in trust for holders of Superior Debt
and pay it over to them as their interests may appear.
SECTION 10.07. SUBROGATION. After all Superior Debt
is paid in full and until the Securities are paid in full,
Holders shall be subrogated to the rights of holders of Superior
Debt to receive distributions applicable to Superior Debt. A
distribution made under this Article 10 to holders of Superior
Debt which otherwise would have been made to Holders is not, as
between the Issuer and Holders, a payment by the Issuer on
Superior Debt.
SECTION 10.08. RELATIVE RIGHTS. This Article 10
defines the relative rights of Holders and holders of Superior
Debt. Nothing in this Indenture shall:
(1) impair, as between the Issuer and Holders,
the obligation of the Issuer, which is absolute
and unconditional, to pay principal and interest
on the Securities in accordance with their terms;
or
(2) prevent the Trustee or any Holder from exer-
cising its available remedies upon a Default,
subject to the rights of holders of Superior Debt
to receive distributions otherwise payable to
Holders.
SECTION 10.09. SUBORDINATION MAY NOT BE IMPAIRED
BY ISSUER. No right of any holder of Superior Debt to enforce
the subordination of the indebtedness evidenced by the Securities
shall be impaired by any act or failure to act by the Issuer or
by its failure to comply with this Indenture.
SECTION 10.10. RIGHTS OF TRUSTEE AND PAYING
AGENT. The Trustee or paying agent may continue to make payments
on the Securities unless, not less than two Business Days prior
to the date of such payment, it receives notice satisfactory to
it that payments may not be made under this Article 10. The
Issuer, the Security Registrar or Security Co-Registrar, the
paying agent, a Representative or a holder of Superior Debt may
give the notice; PROVIDED, HOWEVER, that if an issue of Superior
Debt has a Representative, only the Representative may give the
notice.
The Trustee in its individual or any other capacity may
hold Superior Debt with the same rights it would have if it were
not Trustee. The Security Registrar and Security Co-Registrar
and the paying agent may do the same with like rights.
SECTION 10.11. DISTRIBUTION OR NOTICE TO REPRE-
SENTATIVE. Whenever a distribution is to be made or a notice
given to holders of Superior Debt, the distribution may be made
and the notice given to their Representative.
SECTION 10.12. ARTICLE 10 NOT TO PREVENT EVENTS
OF DEFAULT OR LIMIT RIGHT TO ACCELERATE. The failure to make a
payment pursuant to the Securities by reason of any provision in
this Article 10 shall not be construed as preventing the
occurrence of a Default or an Event of Default. Nothing in this
Article 10 shall have any effect on the right of the Holders or
the Trustee to accelerate the maturity of the Securities.
SECTION 10.13. TRUST MONEYS NOT SUBORDINATED.
Notwithstanding anything contained herein to the contrary,
payments from moneys or the proceeds of U.S. Government
Obligations held in trust by the Trustee for the payment of
principal of, and interest on, the Securities shall not be
subordinated to the prior payment of any Superior Debt or subject
to the restrictions set forth in this Article 10 and none of the
Holders shall be obligated to pay over any such amount to the
Issuer or any holder of Superior Debt of the Issuer or any other
creditor of the Issuer.
SECTION 10.14. TRUSTEE ENTITLED TO RELY. Upon
any payment or distribution pursuant to this Article 10, the
Trustee and the Holders shall be entitled to rely (i) upon any
order or decree of a court of competent jurisdiction in which any
proceedings of the nature referred to in Section 10.03 are
pending, (ii) upon a certificate of the liquidating trustee or
agent or other Person making such payment or distribution to the
Trustee or the Holders or (iii) upon the Representatives for the
holders of Superior Debt for the purpose of ascertaining the
Persons entitled to participate in such payment or distribution,
the holders of the Superior Debt and other indebtedness of the
Issuer, the amount thereof or payable thereon, the amount or
amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article 10. In the event that the Trustee
determines, in good faith, that evidence is required with respect
to the right of any Person as a holder of Superior Debt to par-
ticipate in any payment or distribution pursuant to this Article
10, the Trustee may request such Person to furnish evidence to
the reasonable satisfaction of the Trustee as to the amount of
Superior Debt held by such Person, the extent to which such
Person is entitled to participate in such payment or distribution
and other facts pertinent to the rights of such Person under this
Article 10, and, if such evidence is not furnished, the Trustee
may defer any payment to such Person pending judicial deter-
mination as to the right of such Person to receive such payment.
The provisions of Sections 7.01 and 7.02 shall be applicable to
all actions or omissions of actions by the Trustee pursuant to
this Article 10.
SECTION 10.15. TRUSTEE TO EFFECTUATE SUBORDINA-
TION. Each Holder by accepting a Security authorizes and directs
the Trustee on his behalf to take such action as may be requested
by the Issuer to acknowledge or effectuate the subordination
between the Holders and the holders of Superior Debt as provided
in this Article 10 and appoints the Trustee as attorney-in-fact
for any and all such purposes.
SECTION 10.16. TRUSTEE NOT CHARGED WITH
KNOWLEDGE OF PROHIBITION. Notwithstanding the provisions of this
Article 10 or any other provision of this Indenture, but subject
to the provisions of Sections 7.01 and 7.02, the Trustee and any
paying agent shall not be charged with knowledge of the existence
of any Superior Debt, or of any default in the payment of the
principal of, premium, if any, or interest on, any Superior Debt,
or of any facts which would prohibit the making of any payment of
money to or by the Trustee or any such paying agent, unless and
until the Trustee or such paying agent shall have received at
least two Business Days prior to the date set for payment under
the terms of this Indenture written notice thereof from the
Issuer or a holder of any kind or category of any Superior Debt
or the Representative of such holder; nor shall the Trustee or
any such paying agent be charged with knowledge of the curing of
any such default or of the elimination of the fact or condition
preventing any such payment, unless and until the Trustee or such
paying agent shall have received an Officers' Certificate to such
effect. Nothing contained in this Section shall limit the rights
of holders of Superior Debt to recover payments pursuant to Sec-
tion 10.06. The Trustee shall be entitled to rely conclusively
on any notice received by it pursuant to this Article 10.
SECTION 10.17. RIGHTS OF TRUSTEE AS HOLDER OF
SUPERIOR DEBT. The Trustee shall be entitled to all the rights
set forth in this Article 10 with respect to any Superior Debt
which may at any time be held by it, to the same extent as any
other holder of Superior Debt; and nothing in Article 7 shall
deprive the Trustee of any of its rights as such holder. Nothing
in this Article 10 shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 7.07.
SECTION 10.18. TRUSTEE NOT FIDUCIARY FOR HOLDERS
OF SUPERIOR DEBT. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of Superior Debt and shall not be
liable to any such holders if it shall mistakenly pay over or
distribute to Holders or the Issuer or any other Person, money or
assets to which any holders of Superior Debt shall be entitled by
virtue of this Article 10 or otherwise. With respect to the
holders of Superior Debt, the Trustee undertakes to perform or to
observe only such of its covenants or obligations as are
specifically set forth in this Article 10, and no implied
covenants or obligations with respect to the holders of Superior
Debt shall be read into this Indenture against the Trustee.
Before the Trustee acts or refrains from acting under this
Article 10, it may consult with counsel and may require an
Officers' Certificate or an Opinion of Counsel, and the Trustee
shall not be liable for any action it takes or omits to take in
good faith reliance on such certificate or opinion.
SECTION 10.19. ARTICLE APPLYING TO PAYING
AGENTS. In case at any time any paying agent other than the
Trustee shall have been appointed by the Issuer and be then
acting hereunder, the term "Trustee" as used in this Article 10
shall in such case (unless the context shall otherwise require)
be construed as extending to and including such paying agent
within its meaning as fully for all intents and purposes as if
such paying agent were named in this Article 10 in addition to or
in place of the Trustee.
SECTION 10.20. RELIANCE BY HOLDERS OF SUPERIOR
DEBT ON SUBORDINATION PROVISIONS. Each Holder by accepting a
Security acknowledges and agrees that the foregoing subordination
provisions are, and are intended to be, an inducement and a
consideration to each holder of any Superior Debt, whether such
Superior Debt was created or acquired before or after the
issuance of the Securities, to acquire and continue to hold, or
to continue to hold, such Superior Debt and such holder of
Superior Debt shall be deemed conclusively to have relied on such
subordination provisions in acquiring and continuing to hold, or
in continuing to hold, such Superior Debt.
ARTICLE ELEVEN
MISCELLANEOUS PROVISIONS
SECTION 11.01. TRUST INDENTURE ACT CONTROLS. If
any provision of this Indenture limits, qualifies or conflicts
with another provision which is required to be included in this
Indenture by the TIA, the required provision shall control.
SECTION 11.02. COMMUNICATION BY HOLDERS WITH
OTHER HOLDERS. Holders of Securities may communicate pursuant to
TIA section 312(b) with other Holders with respect to their
rights under this Indenture or the Securities. The Issuer, the
Trustee, the Registrar and anyone else shall have the protection
of TIA section 312(c).
SECTION 11.03. NOTICES. Any notice or
communication shall be sufficiently given if in writing and
delivered in person or mailed by first-class mail, postage
prepaid, addressed as follows:
if to the Issuer:
Americold Corporation
7007 S.W. Cardinal Lane, Suite 135
Portland, Oregon 97224
Attention: Joel M. Smith
if to the Trustee:
United States Trust Company of New York
114 West 47th Street, 15th Floor
New York, New York 10036-1532
Attention: Corporate Trust Division
The Issuer or the Trustee by notice to the other
may designate additional or different addresses for subsequent
notices or communications.
Any notice or communication mailed to a Holder of
Securities shall be mailed to such Holder at his address as it
appears on the registration books of the Registrar and shall be
sufficiently given if so mailed within the time prescribed.
Failure to mail a notice or communication to a
Holder of Securities or any defect in it shall not affect its
sufficiency with respect to other Holders. If a notice or
communication is mailed in the manner provided above, it is duly
given, whether or not the addressee receives it.
SECTION 11.04. WHEN TREASURY SECURITIES DISRE-
GARDED. In determining whether the Holders of the required
principal amount of Securities have concurred in any direction,
waiver or consent, Securities owned by the Issuer or by any
Affiliate of the Issuer shall be disregarded and deemed not to be
Outstanding, except that for the purpose of determining whether
the Trustee shall be protected in relying on any such direction,
waiver or consent, only Securities which the Trustee knows are so
owned shall be so disregarded. Also, subject to the foregoing,
only Securities Outstanding at the time shall be considered in
any such determination.
SECTION 11.05. RULES BY TRUSTEE, PAYING AGENT
AND SECURITY REGISTRAR. The Trustee may make reasonable rules
for action by or a meeting of Holders of Securities. The
Security Registrar and the paying agent may make reasonable rules
for their functions.
SECTION 11.06. LEGAL HOLIDAYS. A "Legal
Holiday" is a Saturday, a Sunday or a day on which banking
institutions are not required to be open in the State of New York
or the State of Oregon. If a Payment Date is a Legal Holiday,
payment shall be made on the next succeeding day that is not a
Legal Holiday, and no interest shall accrue for the intervening
period on such amounts to be paid on such Payment Date; PROVIDED
that if the Maturity Date is a Legal Holiday, interest shall
accrue for such intervening period. If a regular record date is
a Legal Holiday, the record date shall not be affected.
SECTION 11.07. SUCCESSORS. All agreements of
the Issuer in this Indenture and the Securities shall bind its
successor. All agreements of the Trustee in this Indenture shall
bind its successor.
SECTION 11.08. MULTIPLE ORIGINALS. The parties
may sign any number of copies of this Indenture. Each signed
copy shall be an original, but all of them together represent the
same agreement. One signed copy is enough to prove this
Indenture.
SECTION 11.09. SEPARABILITY CLAUSE. In case any
provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way
be affected or impaired thereby.
SECTION 11.10. GOVERNING LAW. This Indenture
and each of the Securities issued hereunder shall be deemed to be
contracts made under the laws of the State of New York and shall
for all purposes be governed by, and construed in accordance
with, the laws of the State of New York without giving effect to
applicable principles of conflicts of law to the extent that the
application of the laws of another jurisdiction would be required
thereby.
SECTION 11.11. TABLE OF CONTENTS; HEADINGS. The
table of contents and the titles and headings of the Articles and
Sections of this Indenture have been inserted for convenience of
reference only, are not being considered a part hereof and shall
in no way modify or restrict any of the terms or provisions
hereof.
<PAGE>
IN WITNESS WHEREOF, AMERICOLD CORPORATION has
caused this Indenture to be signed and acknowledged by its Vice
President, and its corporate seal to be affixed hereunto, and the
same to be attested by its Assistant Secretary; and UNITED STATES
TRUST COMPANY OF NEW YORK has caused this Indenture to be signed
and delivered by one of its Vice Presidents and its corporate
seal to be affixed hereunto, and the same to be attested by one
of its Authorized Persons, all as of the day and year first above
written.
AMERICOLD CORPORATION
By /s/ Joel M. Smith
--------------------------------
Name: Joel M. Smith
Title: Senior Vice President and
Chief Financial Officer
Attest:
/s/ Lon V. Leneve
_________________________
Name: Lon V. Leneve
Title: Secretary
[Seal]
UNITED STATES TRUST COMPANY
OF NEW YORK, as Trustee
By /s/ Louis P. Young
--------------------------------
Name: LOUIS P. YOUNG
Title: VICE PRESIDENT
Attest:
/s/ Margaret M. Ciesmelewski
- ----------------------------
Name: MARGARET M. CIESMELEWSKI
Title: ASSISTANT VICE PRESIDENT
[Seal]<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this 27TH day of June 1995, before me
personally came Joel M. Smith, to me known, and who, being
by me duly sworn, did depose and say that he resides at
275 Chandler Place, Lake Oswego, Oregon 97034, that he is
the Senior Vice President and Chief Financial Officer of
AMERICOLD CORPORATION, one of the corporations described
in and which executed the above instrument; that he knows
the corporate seal of said corporation; that one of the
seals affixed to the said instrument is such corporate
seal; that it was so affixed by authority of the Board of
Directors of said corporation; and that he signed his name
thereto by like authority.
IN WITNESS WHEREOF, I have hereunto set my hand
and affixed my official seal the day and year in this
certificate first above written.
[NOTARIAL SEAL]
/s/ Alissa D. Peck
---------------------------
Name: ALISSA D. PECK
Commission Expires 9/12/96
--------
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this 26 day of June 1995, before me
personally came LOUIS P. YOUNG, to me known, and who,
being by me duly sworn, did depose and say that he resides
at PLAINVIEW, N.Y., that he is the VICE PRESIDENTof UNITED
STATES TRUST COMPANY OF NEW YORK, one of the corporations
described in and which executed the above instrument; that
he knows the corporate seal of said corporation; that one
of the seals affixed to the said instrument is such
corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation; and that he signed
his name thereto by like authority.
IN WITNESS WHEREOF, I have hereunto set my hand
and affixed my official seal the day and year in this
certificate first above written.
[NOTARIAL SEAL]
/s/ Christine C. Collins
---------------------------
Name:
Commission Expires _______
<PAGE>
[FORM OF FACE OF SECURITY]
AMERICOLD CORPORATION
No. R- $
15% Senior Subordinated Debenture, Due 2007
AMERICOLD CORPORATION, an Oregon corporation,
promises to pay to , or registered
assigns, the aggregate principal sum of Dollars on
or before May 1, 2007.
Interest Payment Dates: May 1 and
November 1
Record Dates: April 15 and October 15
Additional provisions of this Security are set
forth on the other side of this Security.
Dated:
AMERICOLD CORPORATION,
By
______________________________
Vice President
______________________________
Secretary
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
UNITED STATES TRUST COMPANY OF NEW
YORK, as Trustee, certifies that [SEAL]
this is one of the Securities
referred to in the Indenture.
By
____________________________
Authorized Signatory
Date of Authentication:<PAGE>
[FORM OF REVERSE SIDE OF SECURITY]
AMERICOLD CORPORATION
15% Senior Subordinated Debenture, Due 2007
1. PAYMENT OF INTEREST; DEFAULT RATE; PAYMENT OF
PRINCIPAL.
Americold Corporation (the "Issuer", which term
includes any successor as defined in the Indenture hereinaf-
ter referred to) promises to pay interest on the outstanding
principal amount of this Security (a "Security") from the
date hereof to maturity at a rate of 15% per annum, and to
pay, on demand, interest, compounded monthly, on any overdue
principal and (to the extent not prohibited by applicable
law) interest at a rate (the "Default Rate") equal to the
lesser of (a) the greater of (i) 18% per annum and (ii) 4%
per annum over the prime rate or equivalent rate of interest
from time to time in effect as announced by United States
Trust Company of New York, and (b) the maximum rate of
interest on this Security then permitted by applicable law,
in each case computed on the basis of a 360-day year of
twelve 30-day months. This Security shall bear interest on
the unpaid principal amount hereof from and after the most
recent Payment Date (as hereinafter defined) to which inter-
est has been paid or, if no interest has been paid, from and
after the date of original issuance of the Securities.
Such principal and interest (other than any inter-
est payable at the Default Rate, which is payable on demand)
shall be payable in the manner set forth in Section 3 below
in lawful money of the United States of America, as follows:
(i) the full amount of all interest accrued on
the outstanding principal amount of this Security shall
be due and payable on May 1 and November 1 of each
year, commencing November 1, 1995; and
(ii) payment of principal shall be due and payable
on May 1, 2007.
The payments described in clause (i) above are herein called
the "Interest Payments" and the dates upon which such pay-
ments and the payment described in clause (ii) above are due
are herein called the "Payment Dates"; PROVIDED that, if any
Payment Date would otherwise be on a day which is not a
Business Day, then such Payment Date shall be the next
succeeding Business Day. Capitalized terms used herein
without definition shall have the meanings specified in the
Indenture (as hereinafter defined).
The Interest Payment payable on any Payment Date
will, subject to certain conditions set forth below, be paid
to the Person in whose name this Security (or one or more
predecessor Securities) is registered at the close of busi-
ness on the April 15 or October 15 next preceding such
Payment Date, as the case may be; PROVIDED that any Interest
Payment not punctually paid or duly provided for on such
Payment Date shall cease to be so payable, but instead shall
be payable to the Person in whose name this Security is
registered at the close of business on such date as shall be
determined by the Issuer in accordance with the Indenture
(as hereinafter defined).
2. INDENTURE.
This Security is a general unsecured obligation of
the Issuer and is one of a duly authorized issue of se-
curities of the Issuer designated as its 15% Senior Sub-
ordinated Debentures, Due 2007, limited in aggregate prin-
cipal amount to $115,000,000, except as provided in the
Indenture (as hereinafter defined), all issued or to be
issued, under and pursuant to the Indenture, dated as of
June 30, 1995 (herein, together with all supplements and
amendments thereto, called the "Indenture"). This Security
has been duly executed and delivered by the Issuer to United
States Trust Company of New York (herein, together with its
successors and assigns as trustee under the Indenture,
called the "Trustee"), as Trustee for authentication.
Reference is hereby made to the Indenture and all indentures
supplemental thereto for a description of the nature and
extent of the security, the rights, limitations of rights,
obligations, duties and immunities thereunder of the
Trustee, the Issuer and the Holders of the Securities, and
this Security is subject in all respects to such Indenture.
3. METHOD OF PAYMENT; TAX WITHHOLDING.
(a) Interest Payments on the Securities will be
made in U.S. dollars, at the office of the Trustee, but, at
the option of the Issuer, such payments may be made by check
drawn on a bank in New York City mailed to the Holder at
such Holder's registered address, except as otherwise pro-
vided in the Indenture. Payment of principal on this Se-
curity upon maturity or redemption in whole or in part,
together with accrued interest, will, except as otherwise
provided in the Indenture, be made against surrender hereof
at the office of the paying agent or co-paying agent main-
tained by the Issuer in New York City, which initially shall
be at the office of the United States Trust Company of New
York, 114 West 47th Street, 15th Floor, New York, New York
10036-1532.
(b) No deduction or withholding from any payment
of interest on this Security for or on account of any taxes
will be made except as required by law. Applicable United
States federal taxes will be withheld from payments on this
Security for any year in which the Trustee has not received
from any Holder hereof that is not a United States Person
(as defined in the Indenture) properly executed Form 4224 or
Form 1001 (or Form W-8) (or successor thereto) in accordance
with the provisions of the Indenture, certifying to the
effect that such Holder is not subject to United States
federal withholding tax on interest payable under this
Security.
4. DENOMINATIONS.
Securities are issuable only in fully registered
form without coupons and may be transferred in minimum
denominations of $1,000 and such greater denominations as
are whole multiples of $1,000, only in the manner and upon
payment of the charges provided in the Indenture. The
Trustee will authenticate and deliver Securities for issue
in an aggregate principal amount not to exceed $115,000,000
upon a written order of the Issuer.
5. DEFAULTS AND REMEDIES.
If an Event of Default, as defined in the Inden-
ture, shall have occurred and be continuing, the principal
amount of each Security may become or be declared to be due
and payable. Upon payment by the Issuer of such principal
amount, and all accrued interest, the obligations of the
Issuer with respect to the payment of principal of, and
interest on this Security shall terminate.
The Indenture provides that a declaration that the
Securities are due and payable upon the occurrence of cer-
tain Events of Default and the consequences of such declara-
tion may be annulled by the Holders of a majority in aggre-
gate principal amount of the Securities then Outstanding,
considered as a single class. It is also provided in the
Indenture that under certain circumstances prior to any such
declaration the Holders of a majority in aggregate principal
amount of the Securities at the time Outstanding may on
behalf of the Holders of all the Securities waive any past
Default or Event of Default under the Indenture and its
consequences except a default in the payment of principal
of, or interest on any of the Securities, or a default in
respect of a covenant or provision of the Indenture which
cannot be amended or modified without the consent of the
Holder of each Security affected.
6. AMENDMENT; SUPPLEMENT; WAIVER.
The Indenture contains provisions permitting the
Issuer and the Trustee, without the consent of the Holders
of Securities, to modify and amend the terms and conditions
of the Indenture and the Securities for certain purposes
including, without limitation, (a) adding to the covenants
of the Issuer for the benefit of the Holders of Securities,
(b) curing any ambiguity or correcting or supplementing any
defective provisions contained therein, or (c) making such
other provisions in regard to matters or questions arising
under the Indenture as shall not adversely affect the inter-
ests of the Holders of the Securities. The Indenture con-
tains provisions permitting the Issuer and the Trustee, with
the consent of the Holders of a majority in aggregate prin-
cipal amount of the Securities then Outstanding, evidenced
as in the Indenture provided, to execute supplemental inden-
tures adding any provisions to or changing in any manner or
eliminating any of the provisions of the Indenture or any
supplemental indenture or modifying in any manner the rights
of the Holders of Securities under the Indenture; PROVIDED
that no such supplemental indenture shall, without the
consent in each case of the Holder of each Security so
affected, (a) extend the fixed maturity of any Securities,
or reduce the principal amount thereof, or change the time
at which or circumstances under which any Security may or
shall be redeemed or repurchased, or reduce the rate of or
extend the time of payment of interest thereon, or make the
principal thereof or interest thereon payable in any coin or
currency other than that hereinbefore provided, or impair
the right to institute suit for the enforcement of any such
payment, make any changes to the subordination provisions
set forth in the Indenture that adversely affect the rights
of any Securityholder, or (b) amend certain provisions of
the Indenture to reduce quorum or voting requirements, or
reduce the aforesaid percentage in aggregate principal
amount of Securities the consent of the Holders of which is
required for any such supplemental indenture, or reduce the
percentage of Securities the Holders of which are required
to give certain directions or to consent to certain waivers
or (c) modify or affect in any manner adverse to the Holders
of the Securities the terms and conditions of the obliga-
tions of the Issuer in respect of the due and punctual pay-
ment of the principal of and interest on the Securities.
Any such consent or waiver by the Holder of this
Security (unless revoked as provided in the Indenture) shall
be conclusive and binding upon such Holder and upon all
future Holders of this Security and any Security which may
be issued in substitution or exchange hereof, irrespective
of whether any notation of such consent or waiver is made
upon this Security or such other Security.
7. REDEMPTION.
The Securities may be redeemed at anytime, in
whole or in part, upon notice given pursuant to the
Indenture, at a redemption price equal to 100% of the
outstanding principal amount of the Securities to be
redeemed, together with accrued interest to the date of
redemption.
In the case of any redemption of Securities, the
Issuer is required to deliver to the Trustee an Officers'
Certificate of the Issuer stating that the Issuer is enti-
tled to effect such redemption and setting forth in reason-
able detail a statement of facts showing that the conditions
precedent, if any, to the right of the Issuer to redeem the
Securities have occurred.
8. SUBORDINATION.
The indebtedness evidenced by this Security is, to
the extent provided in the Indenture, subordinate and sub-
ject in right of payment to the prior payment in full of all
Superior Debt and this Security is issued subject to the
provisions of the Indenture with respect thereto. Each
Holder of this Security, by accepting the same, (a) agrees
to and shall be bound by such provisions and (b) authorizes
and directs the Trustee on his behalf to take such action as
may be necessary or appropriate to effectuate the sub-
ordination so provided.
9. PUT PROVISIONS.
Upon a Change of Control, any Holder of Securities
will have the right to cause the Issuer to repurchase all or
any part of the Securities of such Holder at a repurchase
price equal to 100% of the principal amount of the Securi-
ties to be repurchased plus accrued interest to the date of
repurchase, as provided in, and subject to, the Indenture.
10. ASSET SALES.
The Indenture provides, under certain circum-
stances, for the payment of principal of the Securities from
certain asset sales.
11. DEFEASANCE.
Subject to certain conditions, the Issuer at any
time may terminate some or all of its obligations under the
Securities and the Indenture if the Issuer deposits with the
Trustee money or U.S. Government Obligations for the payment
of principal and interest on the Securities to redemption or
maturity, as the case may be.
12. PERSONS DEEMED OWNERS.
The Issuer, the Trustee and any agent of the
Issuer or the Trustee may deem and treat the Person in whose
name this Security shall be registered upon the Security
Register (as such term is defined in the Indenture) as the
absolute owner of this Security (whether or not this Securi-
ty shall be overdue and notwithstanding any notation of
ownership or other writing thereon) for the purpose of
receiving payment thereof and for all other purposes, and
neither the Issuer nor the Trustee nor any agent of the
Issuer or the Trustee shall, except to the extent required
by applicable law, be affected by any notice to the con-
trary. All such payments so made to any such Person shall
be valid and, to the extent of the sum or sums so paid,
effectual to satisfy and discharge all liability for the
money payable hereupon.
13. VALIDITY; AUTHENTICATION.
The Indenture and this Security shall be deemed to
be contracts made under the laws of the State of New York
and shall for all purposes be governed by, and construed in
accordance with, the laws of such State without giving
effect to applicable principles of conflicts of laws to the
extent that the application of the laws of another jurisdic-
tion would be required thereby.
This Security shall not be valid or become obliga-
tory for any purpose until the certificate of authentication
hereon shall have been manually signed by the Trustee under
the Indenture.
14. UNCLAIMED MONEY.
If money for the payment of principal or interest
remains unclaimed for two years, the Trustee or paying agent
shall pay the money back to the Issuer at its request.
After any such payment, Securityholders entitled to the
money must look only to the Issuer and not to the Trustee
for payment unless an abandoned property law designates
another person.
15. ABBREVIATIONS.
Customary abbreviations may be used in the name of
a Securityholder or an assignee, such as TEN COM (tenants in
common). TEN ENT (tenants by the entireties), JT TEN (joint
tenants with right of survivorship and not as tenants in
common), CUST (custodian), and U/G/M/A (Uniform Gifts to
Minors Act).
The Issuer will furnish to any Securityholder upon
written request and without charge a copy of the Indenture
which has in it the text of this Security in larger type.
16. CUSIP NUMBERS.
Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the
Issuer has caused CUSIP numbers to be printed on the se-
curities and has directed the Trustee to use CUSIP numbers
in notices of redemption as a convenience to Security-
holders. No representation is made as to the accuracy of
such numbers either as printed on the Security or as con-
tained in any notice of redemption and reliance may be
placed only on the other identification numbers placed
thereon.<PAGE>
- -----------------------------------------------------------
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
- -----------------------------------------------------------
(Print or type assignee's name, address and zip code)
- -----------------------------------------------------------
(insert assignee's social security or taxpayer I.D. number)
and irrevocably appoint ___________________________________
agent to transfer this Security on the books of the Issuer.
The agent may substitute another to act for him.
Date: __________________
Signature: ________________________________________________
(Sign exactly as your name appears on the
other side of this Security)
- ------------------------------------------------------------
<PAGE>
AMERICOLD CORPORATION
15% New Subordinated Debentures, Due 2007
CROSS-REFERENCE TABLE
Between the Indenture and the Trust Indenture Act of 1939
TIA
Section Indenture Section
- ------- -----------------
310(a)(1) 7.10
(a)(2) 7.10
(a)(3) Not Applicable
(a)(4) Not Applicable
(b) 7.08; 7.10
(c) Not Applicable
311(a) 7.11
(b) 7.11
(c) Not Applicable
312(a) 4.15
(b) 11.02
(c) 11.02
313(a) 7.06
(b)(1) Not Applicable
(b)(2) 7.06
(c) 7.06; 11.03
(d) 7.06
314(a) 4.03; 4.16; 11.03
(b)(1) Not Applicable
(b)(2) 4.19
(c)(1) 4.19
(c)(2) 4.19
(c)(3) Not Applicable
(d) Not Applicable
(e) 4.20
(f) Not Applicable
315(a) 7.01
(b) 7.05; 11.03
(c) 7.01
(d) 7.01
(e) 5.11
316(a) (last sentence) 11.04
(a)(1)(A) 5.05
(a)(1)(B) 5.04
(a)(2) Not Applicable
(b) 5.07
317(a)(1) 5.08
(a)(2) 5.09
(b) 4.13
318(a) 11.01
_________________________
Note: This Cross-Reference Table shall not, for any pur-
pose, be deemed to be a part of this Indenture.
<PAGE>
SECOND AMENDED AND RESTATED INVESTMENT AGREEMENT
Between
AMERICOLD CORPORATION, an
Oregon corporation
and
METROPOLITAN LIFE INSURANCE COMPANY, a
New York corporation
Dated as of May 5, 1995
<PAGE>
TABLE OF CONTENTS
Page
----
SECTION 1. DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. . . . . . . . . 9
SECTION 3. [Deleted.] . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 4. FINANCIAL STATEMENTS AND INFORMATION . . . . . . . . . . . . . 13
SECTION 5. INSPECTION OF PROPERTIES AND BOOKS . . . . . . . . . . . . . . 15
SECTION 6. COVENANTS OF THE COMPANY . . . . . . . . . . . . . . . . . . . 15
SECTION 7. EVENTS OF DEFAULT. . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 8. RELEASE OF COLLATERAL; ADDITIONS OF MORTGAGED
PROPERTIES TO THE TRUST ESTATE . . . . . . . . . . . . . . . 22
SECTION 9. REQUIRED PREPAYMENTS; PREPAYMENT PRICE; OPTIONS
TO REQUIRE PURCHASE. . . . . . . . . . . . . . . . . . . . . 23
SECTION 10. PAYMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 11. INDEMNITY . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 12. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. . . . . . . . . . 27
SECTION 13. EXPENSES. . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 14. CONSENT; CONDITIONS TO EFFECTIVENESS. . . . . . . . . . . . . 28
SECTION 15. RIGHTS CUMULATIVE . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 16. PARTIAL TERMINATION . . . . . . . . . . . . . . . . . . . . . 29
SECTION 17. SUCCESSORS. . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 18. CONSTRUCTION. . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 19. AMENDMENTS. . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 20. NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 21. HEADINGS. . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 22. COUNTERPARTS. . . . . . . . . . . . . . . . . . . . . . . . . 31
<PAGE>
SECOND AMENDED AND RESTATED INVESTMENT AGREEMENT
dated as of May 5, 1995 between AMERICOLD CORPORA-
TION, an Oregon corporation (the "Company"), and
METROPOLITAN LIFE INSURANCE COMPANY, a New York
corporation (the "Investor").
The Investor was the purchaser of $300,000,000
aggregate principal amount of the Company's First Mortgage Bonds
Due 2002 (the "Original Bonds") issued pursuant to an Indenture
dated as of June 15, 1987 (the "Original Indenture") between the
Company and Shawmut Bank Connecticut, National Association (then
known as The Connecticut National Bank), as Trustee. In
connection with the purchase of the Original Bonds by the
Investor, the Company and the Investor entered into an Investment
Agreement dated as of July 2, 1987 (the "Original Agreement")
providing for certain additional terms regarding Investor's
investment in the Original Bonds. The Company has retired
$150,000,000 in principal amount of the Original Bonds with the
proceeds of a registered offering (the "Offering") of
$176,250,000 aggregate principal amount of the Company's 11 1/2%
First Mortgage Bonds, Series B, Due 2005 (the "Series B Bonds").
In connection with the Offering, the Original Indenture was
amended and restated to provide for the issuance of the Series B
Bonds, to reflect certain amendments to the terms and conditions
governing the Original Bonds and to redesignate the Original
Bonds as 11.45% First Mortgage Bonds, Series A, Due 2002. The
Original Bonds as so amended and redesignated are herein referred
to as the "Series A Bonds." The Original Indenture as so amended
and restated is herein referred to as the "Indenture." In
connection with the Offering and the amendment and restatement of
the Original Indenture, the Company and the Investor entered into
an Amended and Restated Investment Agreement dated as of March 2,
1993 (as amended, the "Amended and Restated Agreement").
The Company is preparing to issue $115,000,000 of 15%
Senior Subordinated Debentures due 2007 (the "New Subordinated
Debentures") in exchange for its outstanding 11% Senior
Subordinated Debentures due 1997 (the "Old Subordinated
Debentures"), pursuant to a Plan of Reorganization (the "Plan")
described in a Disclosure Statement dated April 14, 1995 (the
"Disclosure Statement"). The Investor is willing to execute this
Second Amended and Restated Investment Agreement (this
"Agreement"), subject to the conditions set forth herein.
NOW, THEREFORE, the Company and the Investor have
agreed and do hereby agree as follows:
SECTION 1. DEFINITIONS. Unless the context specifies
to the contrary, all terms used in this Agreement are used herein
with the meanings set forth in the Indenture (provided that
defined terms in the Indenture which incorporate terms that are
defined both herein and in the Indenture shall be deemed for the
purposes of this Agreement to be amended to reflect such terms as
defined herein) and as follows:
"ADJUSTED CONSOLIDATED INTEREST EXPENSE" means, for any
period, the total interest expense of the Company and its
Restricted Subsidiaries, including (i) interest expense
attributable to capital leases, (ii) amortization of debt
discount and debt issuance cost, (iii) capitalized interest,
(iv) non-cash interest payments, (v) commissions, discounts and
other fees and charges owed with respect to letters of credit and
bankers' acceptance financing, (vi) net costs under Interest Rate
Protection Agreements (including amortization of fees),
(vii) Preferred Stock dividends (other than dividends payable
solely in kind) in respect of all Preferred Stock held by persons
other than the Company or a Restricted Subsidiary,
(viii) interest incurred in connection with investments in
discontinued operations and (ix) interest actually paid by the
Company or any of its Restricted Subsidiaries under any guarantee
of Indebtedness or any other obligation of any other person.
"ADJUSTED CONSOLIDATED NET INCOME" means, for any
period, the net income (or net loss) of the Company and its
Restricted Subsidiaries determined on a consolidated basis in
accordance with generally accepted accounting principles,
provided, however, that there shall not be included in such
Adjusted Consolidated Net Income:
(i) any net income of any person if such person is not
a Restricted Subsidiary, except that (A) the Company's or
any Restricted Subsidiary's equity in the net income of any
such person for such period shall be included in such
Adjusted Consolidated Net Income up to the aggregate amount
of cash actually distributed by such person during such
period to the Company or a Restricted Subsidiary as a
dividend or other distribution (subject, in the case of a
dividend or other distribution to a Restricted Subsidiary,
to the limitations contained in clause (iii) below) and
(B) the Company's or any Restricted Subsidiary's equity in a
net loss of any such person for such period shall be
included in determining such Adjusted Consolidated Net
Income;
(ii) any net income of any person acquired by the
Company or a Restricted Subsidiary in a pooling of interests
transaction for any period prior to the date of such
acquisition;
(iii) any net income of any Restricted Subsidiary if
such Restricted Subsidiary is subject to restrictions,
directly or indirectly, on the payment of dividends or the
making of distributions by such Restricted Subsidiary,
directly or indirectly, to the Company, except that (A) the
Company's equity in the net income of any such Restricted
Subsidiary for such period shall be included in such
Adjusted Consolidated Net Income up to the aggregate amount
of cash actually distributed by such Restricted Subsidiary
during such period to the Company or another Restricted
Subsidiary as a dividend or other distribution (subject, in
the case of a dividend or other distribution to another
Restricted Subsidiary, to the limitation contained in this
clause) and (B) the Company's equity in a net loss of any
such Restricted Subsidiary for such period shall be included
in determining such Adjusted Consolidated Net Income;
(iv) any gain or loss realized upon the sale or other
disposition of any property, plant or equipment of the
Company or its Restricted Subsidiaries (including pursuant
to any sale-and-leaseback arrangement), provided, however,
that the exclusion from Adjusted Consolidated Net Income of
gains described in this clause (iv) shall not apply to
deferred gains resulting from sale-and-leaseback arrange-
ments to the extent that there is an offsetting increase in
depreciation expense resulting from the recapitalization of
the related property, plant or equipment which is not sold
or otherwise disposed of in the ordinary course of business
and any gain or loss realized upon the sale or other
disposition of any Capital Stock of any person;
(v) the cumulative effect of a change in accounting
principles, including the cumulative effect of the implemen-
tation of SFAS 106 by the Company with respect to services
rendered by employees in periods prior to its implementa-
tion, but excluding any effects of such implementation with
respect to services rendered in periods following such
implementation, and excluding any one-time or cumulative
charges associated with the implementation of SFAS 109;
(vi) the cash effect of the rejection of any leases
and executory contracts pursuant to the Plan; and
(vii) the cash effect of the Company's incurring costs
(including but not limited to professional fees) in
connection with the Plan in excess of $5,750,000.
"ADJUSTED CONSOLIDATED NET WORTH" of the Company and
its Restricted Subsidiaries shall mean an amount equal to the
total amounts shown on the balance sheet of the Company and its
Restricted Subsidiaries, as of the date for which the determina-
tion is being made, as (i) the par or stated value of all out-
standing Capital Stock of the Company plus (ii) paid-in capital
or capital surplus relating to such Capital Stock plus (iii) any
retained earnings or earned surplus less (A) any accumulated
deficit, (B) any amounts attributable to Redeemable Stock,
(C) any amounts attributable to Exchangeable Stock, (D) any
amounts attributable to treasury stock and (E) adjustments
relating to pension liabilities, in all cases determined on a
consolidated basis in accordance with generally accepted
accounting principles; provided, however that to the extent such
balance sheet reflects any effects attributable to any one time
or cumulative charges associated with the implementation of SFAS
106 and 109 or any changes in accounting principles implemented
thereafter, such effects shall be disregarded; and provided,
further, that to the extent such balance sheet reflects any gain
or loss realized upon the sale or other disposition of any
property, plant or equipment of the Company or its restricted
subsidiaries after February 28, 1995 (including pursuant to a
sale-and-leaseback arrangement which is an Asset Disposition) or
upon the sale or other disposition of any Capital Stock of any
person, such gain or loss shall also be disregarded; and
provided, further that the cash effects of the rejection of any
leases or executory contracts pursuant to the Plan and the cash
effects of the Company's incurring costs (including but not
limited to professional fees) in connection with the Plan in
excess of $5,750,000 shall also be disregarded.
"ADJUSTED EBITDA" means, for any period, Adjusted
Consolidated Net Income plus (to the extent deducted in calcu-
lating Adjusted Consolidated Net Income) Adjusted Consolidated
Interest Expense, income taxes, depreciation expenses, amortiza-
tion expense, non-cash write-offs of deferred financing costs and
non-cash deductions for contributions to the ESOP (but without
giving effect to any extraordinary gain or loss) for such period.
"ADJUSTED TOTAL CAPITALIZATION" shall mean, without
duplication, Adjusted Consolidated Net Worth plus Indebtedness of
the Company and its Restricted Subsidiaries, consolidated in
accordance with generally accepted accounting principles.
"ASSET DISPOSITION" shall mean any sale, lease, trans-
fer or other disposition (or series of related sales, leases,
transfers or dispositions) of shares of Capital Stock of a
Subsidiary (other than directors' qualifying shares), property or
other assets (each referred to for the purposes of this defini-
tion as a "disposition") by the Company or any of its Subsidi-
aries, other than (i) a disposition by a Subsidiary to the
Company or by the Company or a Subsidiary to a Wholly Owned
Subsidiary that is a Restricted Subsidiary, (ii) a disposition of
property or assets at fair market value in the ordinary course of
business, (iii) a disposition of obsolete or worn out assets in
the ordinary course of business, (iv) a disposition subject to
and made in accordance with Section 3.01 of the Indenture, or
(v) a disposition subject to Section 4.06 of the Indenture.
"AVAILABLE CASH FLOW" for the most recent four-quarter
period ended prior to the date on which a determination is being
made, shall mean Adjusted EBITDA minus (i) cash income taxes paid
or payable during such period and (ii) the amount of Capital
Expenditures (other than any non-cash Capital Expenditures) of
the Company and its Restricted Subsidiaries during such period.
"BANK" shall mean U.S. National Bank of Oregon, any
successors thereto, or the representative or agent for any
successor bank group or groups providing long-term bank financing
for the Company from time to time.
"CAPITAL EXPENDITURES" shall mean, for any period, the
sum of all expenditures for fixed or capital assets (including,
without limitation, expenditures for maintenance and repairs
which should be capitalized in accordance with generally accepted
accounting principles and Capital Lease Obligations), but not
including expenditures for the acquisition of assets or other
property pursuant to Section 4.27 of the Indenture.
"CAPITAL LEASE OBLIGATION" of any Person shall mean the
obligations of such Person to pay rent or other amounts under a
lease that is required to be capitalized for financial reporting
purposes in accordance with generally accepted accounting princi-
ples; and the amount of such obligation shall be the capitalized
amount thereof determined in accordance with generally accepted
accounting principles.
"CONTINGENT OBLIGATION" as applied to any Person means
any direct or indirect liability, contingent or otherwise, of
that Person with respect to any indebtedness, lease, dividend, or
other obligation of another, or any letter of credit, including,
without limitation, any such obligation directly or indirectly
guaranteed, endorsed (other than for collection or deposit in the
ordinary course of business), co-made or discounted or sold with
recourse by that Person, or in respect of which that Person is
otherwise directly or indirectly liable, including, without
limitation, any such obligation for which that Person is in
effect liable through any agreement (contingent or otherwise) to
purchase, repurchase, or otherwise acquire such obligation or any
security therefor, or to provide funds for the payment or
discharge of such obligation (whether in the form of loans,
advances, stock purchases, capital contributions, or otherwise),
or to maintain the solvency of any balance sheet, income, or
other financial condition of the obligor of such obligation, or
to make payment for any products, materials or supplies or for
any transportation, services, or lease regardless of the
nondelivery or nonfurnishing thereof, in any such case if the
purpose or intent of such agreement is to provide assurance that
such obligation will be paid or discharged, or that any agree-
ments relating thereto will be complied with, or that the holders
of such obligation will be protected (in whole or in part)
against loss in respect thereof. The amount of any Contingent
Obligation shall be equal to the amount of the obligation so
guaranteed or otherwise supported.
"CREDIT AGREEMENT" shall mean the Credit Agreement
dated as of February 3, 1993, between the Company and United
States National Bank of Oregon, as amended through the date
hereof and as the same may be amended from time to time.
"DEFAULT" shall mean the occurrence of any event which,
upon notice or lapse of time or both, would become an Event of
Default under the Indenture or this Agreement.
"INDEBTEDNESS" of any Person shall mean, without
duplication, (a) all indebtedness of such Person for borrowed
money or for the deferred purchase price of property or services;
(b) except to the extent supporting Indebtedness of such Person
(but no other indebtedness) of the type described in clause (a)
above, the face amount of all letters of credit issued for the
account of such Person and, without duplication, all drafts drawn
thereunder; (c) all liabilities secured by any Lien on any prop-
erty owned by such Person, whether or not such indebtedness has
been assumed; (d) all Capital Lease Obligations; and (e) all
Contingent Obligations of such Person.
"LIEN" shall mean any mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or
other), or preference, priority or other security agreement of
any kind or nature whatsoever (including, without limitation, any
conditional sale or other title retention agreement and any
financing lease having substantially the same effect as any of
the foregoing).
"NET AVAILABLE CASH": The term "Net Available Cash"
from an Asset Disposition means Cash payments received (including
any Cash payments received by way of deferred payment of princi-
pal pursuant to a note or installment receivable or otherwise,
but only as and when received, but excluding any other considera-
tion received in the form of assumption by the acquiring Person
of Indebtedness or other obligations relating to such properties
or assets or received in any other non-Cash form) therefrom, in
each case net of all legal, title and recording tax expenses,
commissions and other fees and expenses incurred, and all
federal, state, provincial, foreign and local taxes required to
be accrued as a liability under generally accepted accounting
principles, as a consequence of such Asset Disposition, and in
each case net of all payments made on any Indebtedness which is
secured by any assets subject to such Asset Disposition, in
accordance with the terms of any Lien upon or other security
agreement of any kind with respect to such assets, or which must
by its terms, or in order to obtain a necessary consent to such
Asset Disposition, or by applicable law be repaid out of the
proceeds from such Asset Disposition, and net of all distribu-
tions and other payments required to be made and actually made to
minority interest holders in Subsidiaries or joint ventures as a
result of such Asset Disposition.
"NET CASH" of the Company and its Restricted Subsidi-
aries on a consolidated basis, as of any date, shall mean the
amount shown on the consolidated balance sheet of the Company and
its Restricted Subsidiaries as cash as of such date (but not
including cash held in accounts or deposits that are subject to
any lien, encumbrances or restrictions or which is required to be
held in connection with any agreements or obligations), computed
in accordance with generally accepted accounting principles, plus
the total amount of cash payments which the Company has made as
of the date of computation for redemption or prepayment of
Series A Bonds pursuant to clauses (y) and (z) of the second
paragraph of Section 9(b) hereof, minus the amount of
Indebtedness outstanding on such date under the Credit Agreement
(or any Indebtedness issued in any refinancing, refunding,
replacement, extension or restructuring thereof), other than any
Indebtedness representing undrawn amounts under letters of credit
under the Credit Agreement (or any Indebtedness issued in any
refinancing, refunding, replacement, extension or restructuring
thereof) not in excess of $10,000,000 in the aggregate; provided,
however, that Net Cash shall not be less than zero.
"PREFERRED STOCK," as applied to the Capital Stock of
any corporation, means Capital Stock of any class or classes
(however designated) which is preferred as to the payment of
dividends, or as to the distribution of assets upon any voluntary
or involuntary liquidation or dissolution of such corporation,
over shares of Capital Stock of any other class of such
corporation.
"PRO FORMA DEBT SERVICE," for any period, shall mean
the sum of (i) Adjusted Consolidated Interest Expense (excluding
any non-cash items included in Adjusted Consolidated Interest
Expense to the extent no current liability exists with respect
thereto) that would be payable during such period by the Company
and its Restricted Subsidiaries assuming (x) that all Indebted-
ness outstanding on the last day of the quarter prior to the
period for which the determination is being made were outstanding
throughout such period (other than scheduled payments of
principal to the extent included in clause (ii) hereof), and
(y) that, with respect to any floating rate or other Indebted-
ness, the interest rate in effect on the date of such determina-
tion were in effect throughout such period, but giving effect to
any scheduled increase or decrease in interest rate that is
ascertainable on the date of determination, and (ii) the amount
of principal payments payable during such period (and any inter-
est payable during such period on such principal amounts to the
extent not included in clause (i) hereof) on all Indebtedness of
the Company and its Restricted Subsidiaries, in each case consol-
idated in accordance with generally accepted accounting
principles.
"PROSPECTUS" shall mean the final Prospectus with
respect to the first public sale of the Series B Bonds, as filed
with the SEC under Rule 424.
"REDEEMABLE STOCK" means any Capital Stock (excluding
Capital Stock which has been or is hereafter sold or issued to an
employee stock ownership plan) that by its terms or otherwise is
required to be redeemed on or prior to the first anniversary of
the Stated Maturity of the Series A Bonds or is redeemable at the
option of the holder thereof at any time on or prior to the first
anniversary of the Stated Maturity of the Series A Bonds.
"RELEVANT DOCUMENT" shall have the meaning set forth in
Section 2(b) hereof.
"RESTRICTED SUBSIDIARY" shall mean all Subsidiaries of
the Company other than Unrestricted Subsidiaries.
"SENIOR DEBT" of the Company and its Restricted
Subsidiaries shall mean all Indebtedness of the Company and its
Restricted Subsidiaries, consolidated in accordance with gener-
ally accepted accounting principles, other than Subordinated
Debt.
"SUBORDINATED DEBT" shall mean the Old Subordinated
Debentures, the New Subordinated Debentures, any other unsecured
Indebtedness for money borrowed of the Company which
(i) on the date on which the status of such Indebted-
ness is determined for any purpose hereof,
(1) has a final maturity not earlier than
September 1, 2005, and
(2) is not subject to payment, redemption or
other retirement by means of any installment, sinking
fund, serial maturity or other required payments prior
to September 1, 2005; and
(ii) is issued or assumed pursuant to, or evidenced
by, an indenture or other instrument that contains provi-
sions for the subordination of such Indebtedness (to which
appropriate reference shall be made in the instruments
evidencing such Indebtedness if not contained therein) to
the Series A Bonds and the Series B Bonds (and, at the
option of the Company, if so provided, to other Indebtedness
of the Company, either generally or as specifically desig-
nated) on the terms, including related definitions, set
forth in Schedule III attached hereto.
"SUBSIDIARY" of any Person shall mean and include
(a) 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 (irrespec-
tive of whether or not at the time stock of any class or classes
of such corporation will have or might have voting power by
reason of the happening of any contingency) is at the time owned
by such Person directly or indirectly or through Subsidiaries and
(b) any partnership, association, joint venture or other entity
in which such Person, directly or through Subsidiaries, has a
more than 50% equity interest at the time.
"TITLE COMPANY" shall mean Ticor Title Insurance
Company.
"UNRESTRICTED SUBSIDIARY" shall mean any Subsidiary of
the Company which is created or acquired by the Company or any
Subsidiary of the Company after the date hereof and is designated
an Unrestricted Subsidiary by the Company's Board of Directors at
the time of such creation or acquisition.
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE
COMPANY. The Company hereby represents and warrants as follows:
(a) CORPORATE STATUS. Each of the Company and its
Subsidiaries (i) is a duly organized and validly existing
corporation in good standing under the laws of the jurisdic-
tion of its incorporation, (ii) has the power and authority
to own its property and assets and to transact the business
in which it is engaged and (iii) is duly qualified as a
foreign corporation and in good standing in each jurisdic-
tion where the ownership, lease or operation of property or
the conduct of its business requires such qualification
except where the failure to be so qualified would not have a
material adverse effect on the business, operations, prop-
erty, condition (financial or otherwise) or immediate
prospects of the Company and its Restricted Subsidiaries
taken as a whole.
(b) CORPORATE POWER AND AUTHORITY. The Company has
the corporate power to execute, deliver and carry out the
terms and provisions of this Agreement, the Security Docu-
ments, the Indenture, the Plan, and the documents
contemplated by the Plan to be executed and delivered by the
Company (collectively, the "Relevant Documents") and has
taken all necessary corporate action to authorize the
execution, delivery and performance by it of each of the
Relevant Documents. The Company has duly executed and
delivered each of the Relevant Documents, and each of the
Relevant Documents constitutes its legal, valid and binding
obligation enforceable in accordance with its respective
terms.
(c) NO CONTRAVENTION. Neither the execution, delivery
or performance by the Company of the Relevant Documents nor
compliance by it with the terms and provisions thereof,
(i) will contravene any applicable provision of any law,
statute, rule, regulation, order, writ, injunction or decree
of any court or governmental instrumentality or (ii) will
conflict or be inconsistent with or result in any breach of
any of the terms, covenants, conditions or provisions of, or
constitute a default under, or result in the creation or
imposition of (or the obligation to create or impose) any
Lien (except pursuant to the Security Documents) upon any of
the property or assets of the Company or any of its
Subsidiaries pursuant to the terms of any indenture,
mortgage, deed of trust, agreement or other instrument to
which the Company or any of its Subsidiaries is a party or
by which it or any of its property or assets is bound, or
(iii) will violate any provision of the Certificate of
Incorporation or By-Laws of the Company or any of its
Subsidiaries.
(d) LITIGATION. There are no actions, suits or
proceedings pending or, to the best of the knowledge of the
Company, threatened (i) with respect to any Relevant Docu-
ment or (ii) that are reasonably likely to materially and
adversely affect the operations, business, property, assets,
condition (financial or otherwise) or immediate prospects of
the Company and its Restricted Subsidiaries taken as a
whole.
(e) ABSENCE OF DEFAULTS. As of the date of this
Second Amended and Restated Investment Agreement, there
exists no Default or Event of Default under the Indenture or
this Second Amended and Restated Investment Agreement.
(f) GOVERNMENTAL APPROVALS. No order, consent,
approval, license, authorization, or validation of, or
filing, recording or registration with (except as have been
obtained or made), or exemption by, any governmental or
public body or authority, or any subdivision thereof, is
required to authorize, or is required in connection with
(i) the execution, delivery and performance of any Relevant
Document or (ii) the legality, validity, binding effect or
enforceability of any Relevant Document, other than the
qualification of the Indenture under the Trust Indenture Act
of 1939, as amended and the registration of the Bonds under
the Securities Act of 1933, as amended, or under any state
securities laws.
(g) SECURITY INTERESTS. Each of the Security Agree-
ment and Cash Collateral Pledge Agreement creates, as
security for the Indebtedness and Obligations referred to
therein, a valid and enforceable security interest in and
Lien on all of the Collateral (as defined in the Security
Agreement) and Pledged Collateral (as defined in the Cash
Collateral Pledge Agreement), respectively, in favor of the
Trustee for the benefit of the holders from time to time of
the Series A Bonds and the Series B Bonds, which is
perfected and superior to and prior to the rights of all
third Persons. Each Mortgage creates, as security for the
Mortgage Indebtedness and Obligations referred to therein, a
valid and enforceable first priority mortgage lien on all of
the Mortgaged Property referred to therein (except for the
Mortgage with respect to the Company's Fogelsville,
Pennsylvania property, which creates a second priority
mortgage lien), in favor of the Trustee for the benefit of
the holders from time to time of the Series A Bonds and the
Series B Bonds, subject only to Permitted Encumbrances.
(h) COMPLIANCE WITH ERISA. All Plans except any
multiemployer plan (as defined in Section 4001(a)(3) of the
Employee Retirement Income Security Act of 1974, as amended
("ERISA")), are in substantial compliance with ERISA, no
Plan is insolvent or in reorganization, no Plan has an
accumulated or waived funding deficiency or has applied for
an extension of any amortization period within the meaning
of Section 412 of the Internal Revenue Code of 1986 (the
"Code"), neither the Company, any Subsidiary of the Company
nor any ERISA Affiliate has incurred any liability to or on
account of a Plan which is a single-employer plan as defined
in Section 4001(a)(15) of ERISA pursuant to Section 4062,
4063, or 4064 of ERISA, or a multiemployer plan pursuant to
Section 515, 4201 or 4204 of ERISA, which remains unsatis-
fied, no proceedings have been instituted to terminate any
Plan, and no condition exists which presents a material risk
to the Company and its Restricted Subsidiaries, taken as a
whole, of either incurring a liability to or on account of a
Plan pursuant to any of the foregoing sections of ERISA or
the Code. Any representation in the immediately preceding
sentence with respect to any Plan which is a multiemployer
plan (other than a representation with respect to liability
under Section 515, 4201 or 4204 of ERISA) is to the
knowledge of the Company. As of the date of this Agreement,
the aggregate present value of all accrued benefits of all
Plans which are single-employer plans did not exceed the
aggregate current value of all assets of such Plans based
upon estimated actuarial data as of March 1, 1991, provided
to the Company by the consulting actuaries of the Plans, by
more than $300,000 and there has been no material change in
such liability. As of the date of this Agreement, the
aggregate present value of unfunded contingent withdrawal
liability under Title IV of ERISA attributable to the
Company or any of its Subsidiaries does not exceed
$1,500,000, based upon the most recent records with respect
to such contingent withdrawal liability provided to the
Company. To the knowledge of the Company, neither the
Company nor any Subsidiary of the Company has incurred any
liability (including any contingency or secondary liability)
to or on account of a Predecessor Plan.
As used in this Section 2(h):
"ERISA AFFILIATE" shall mean any person (as defined
in Section 3(9) of ERISA) (including each trade or
business (whether or not incorporated)) which together
with the Company or any Subsidiary of the Company would
be deemed to be a "single employer" or a member of the
same "controlled group" of "contributing sponsors"
within the meaning of Section 4001 of ERISA,
"PLAN" shall mean any multiemployer plan or
single-employer plan, as defined in Section 4001 and
subject to Title IV of ERISA, which is maintained for
employees of the Company or by a Subsidiary of the
Company or an ERISA Affiliate, and
"PREDECESSOR PLAN" shall mean any multiemployer plan
or single-employer plan as defined in Section 4001 and
subject to Title IV of ERISA, which was maintained for
employees of any members of the controlled group of
employers with or of which the Company or a Subsidiary
of the Company is or was a member.
(i) [DELETED]
(j) LEGAL REQUIREMENTS. Each Mortgaged Property (and
the Company in respect thereof) is in compliance with all
Legal Requirements (as such term is defined in the Mortgage
covering such Mortgaged Property)
(k) SUBSIDIARIES. The corporations listed on
Schedule I are the only Subsidiaries of the Company. Said
Schedule correctly sets forth the percentage ownership
(direct and indirect) of the Company in each of its
Subsidiaries and the identity of the direct owner thereof.
Each such Subsidiary is a Restricted Subsidiary.
(l) PATENTS, LICENSES, FRANCHISES AND FORMULAS. The
Company and its Subsidiaries own all of the patents, trade-
marks, permits, service marks, trade names, copyrights,
licenses, franchises and formulas, or rights with respect to
the foregoing, and has obtained assignments of all leases
and other rights of whatever nature, necessary for the
present conduct of its business, without any known conflict
with the rights of others which, or the failure to obtain
which, as the case may be, would result in a material
adverse effect on the business, operations, property or
financial or other conditions of the Company or any of its
Subsidiaries.
(m) STORAGE CONTRACTS. Except as set forth in
Schedule II hereto as of the date of this Agreement, neither
the Company nor any of its Subsidiaries is party to any
contract (other than a lease) obligating the Company or any
such Subsidiary to provide to any Person storage services at
any Mortgaged Property for a period of more than one year
from the date of such contract.
SECTION 3. [Deleted.]
SECTION 4. FINANCIAL STATEMENTS AND INFORMATION. The
Company will furnish to the Investor in duplicate:
(a) as soon as available and in any event within
45 days after the end of the first, second and third
quarterly accounting periods in each fiscal year of the
Company, a consolidated balance sheet of the Company and its
Subsidiaries as of the end of such quarterly period and the
related consolidated statements of operations, stockholders'
equity and cash flows of the Company and its Subsidiaries
for such quarterly period and (in the case of the second and
third quarterly periods) for the portion of the fiscal year
ended with the last day of such quarterly period, all in
reasonable detail and stating in comparative form the
respective consolidated figures for the appropriate
corresponding dates and periods in the previous fiscal year
and all certified by the chief financial officer or
treasurer of the Company to present fairly the information
contained therein in accordance with generally accepted
accounting principles (except as to year-end and audit
adjustments);
(b) as soon as available and in any event within
90 days after the end of each fiscal year of the Company,
(i) a consolidated balance sheet of the Company
and its Subsidiaries as of the end of such fiscal year
and the related consolidated statements of operations,
stockholders' equity and cash flows of the Company and
its Subsidiaries for such fiscal year, all in reason-
able detail and stating in comparative form the respec-
tive consolidated figures as of the end of and for the
previous fiscal year and all accompanied by a report
thereon of KPMG Peat Marwick, or other independent
public accountants of recognized national standing
selected by the Company, and
(ii) a written statement of the accountants
referred to in clause (i) above stating that in making
the examination necessary for their report on such
financial statements they obtained no knowledge of any
Default or Event of Default under this Agreement or the
Indenture or, if such accountants shall have obtained
knowledge of any such Default or Event of Default,
specifying the nature and status thereof;
(c) concurrently with the financial statements
furnished pursuant to clauses (a) and (b) of this section,
(i) a written statement of the chief financial
officer or treasurer of the Company setting forth
computations in reasonable detail showing as at the end
of such quarterly or annual period, as the case may be,
(x) whether there was compliance with Sections 6(c),
6(d) and 6(e) hereof and with Sections 9.09, 9.10 and
9.11 of the Credit Agreement incorporated by reference
herein pursuant to Section 6(a) hereof (or any corres-
ponding covenants incorporated by reference herein
pursuant to Section 6(b) hereof), and (y) the calcula-
tions by which the information required to make the
determinations required by (x) was derived from the
financial statements furnished pursuant to (a) and (b)
of this section,
(ii) a certificate of the President or the chief
financial officer or treasurer of the Company stating
that, based upon such examination or investigation and
review of this Agreement and the Indenture as in the
opinion of the signer is necessary to enable the signer
to express an informed opinion with respect thereto, no
Default or Event of Default under this Agreement or the
Indenture exists or has existed during such period, or,
if such a Default or Event of Default shall exist or
have existed, specifying the nature and period of
existence thereof and what action the Company has
taken, is taking or proposes to take with respect
thereto, and
(iii) a certificate from the accountants referred
to in paragraph (b)(i) above to the effect that they
have reviewed the annual computations referred to in
clause (c)(i) above and such computations were
accurately prepared;
(d) promptly, and in any event within five Business
Days after any executive officer of the Company obtains
knowledge thereof, notice of (i) the occurrence of any event
which constitutes a Default or Event of Default under this
Agreement or the Indenture, (ii) any litigation or govern-
mental proceedings pending (x) against the Company or any
Subsidiary of the Company which is likely to materially and
adversely affect the operations, business, property, assets,
condition (financial or otherwise) or prospects of the
Company and its Restricted Subsidiaries taken as a whole or
(y) with respect to any Relevant Document and (iii) any
other event which is likely to materially and adversely
affect the financial condition, operations or prospects of
the Company or any Restricted Subsidiary of the Company;
(e) promptly after the Company's receipt thereof, a
copy of any "management letter" received by the Company from
its independent public accountants;
(f) promptly after the same are available, copies of
all such proxy statements, financial statements and reports
as the Company or any Subsidiary of the Company shall send
or make available generally to the Bank under the Credit
Agreement or to the trustee in respect of the Old
Subordinated Debentures or New Subordinated Debentures, and
copies of all regular and periodic reports and of all
registration statements (other than on Form S-8 or a similar
form) which the Company may file with the SEC; and
(g) such other information as the Investor may from
time to time reasonably request.
SECTION 5. INSPECTION OF PROPERTIES AND BOOKS. The
Investor, at its own expense, shall have the right to visit and
inspect any of the properties of the Company and any Subsidiary
of the Company, to examine the books of account and records of
the Company and such Subsidiary, to make or be provided with
copies and extracts therefrom, to discuss the affairs, finances
and accounts of the Company and such Subsidiary with, and to be
advised as to the same by, its and their officers, and its and
their independent public accountants (and by this provision the
Company authorizes said accountants to discuss such affairs,
finances and accounts whether or not a representative of the
Company or any Subsidiary of the Company is present) all at such
reasonable times and intervals as the Investor may desire, it
being understood that the Company will pay any fees of such
accountants incurred by it in connection with the Investor's
exercise of rights pursuant to this section.
SECTION 6. COVENANTS OF THE COMPANY. The Company
hereby covenants and agrees as follows:
(a) So long as the Credit Agreement shall be in
effect, all negative covenants contained in Article IX of
the Credit Agreement, except those contained in Section 9.07
(transactions with affiliates) and 9.13 thereof, together
with all related definitions contained in said Credit
Agreement, shall be deemed to be hereby incorporated by
reference and reaffirmed herein, MUTATIS MUTANDIS, for the
benefit of the Investor (with all references to the Agent or
the Banks deemed to be references to the Investor).
(b) If at any time the Credit Agreement (or any
successor thereto) is refinanced or replaced by other bank
financing, any and all negative covenants and definitions
which are included in any agreement with respect to such new
financing facility and which correspond to those incorpo-
rated by reference in Section 6(a) hereof shall, for so long
as such agreement or agreements is or are in effect, be
incorporated by reference and reaffirmed herein, MUTATIS
MUTANDIS, for the benefit of the Investor.
(c) The Company will not permit Adjusted Consolidated
Net Worth at any time to be less than the amount set forth
below opposite the period in which the measurement is made:
Fiscal Year(s) Ended February Amount
----------------------------- ------
1996 ($37,000,000)
1997 ($36,000,000)
1998 ($34,000,000)
1999 ($32,000,000)
2000 ($28,000,000)
2001 ($25,000,000)
2002 ($19,000,000)
2003 ($10,000,000)
(d) The Company will not permit the ratio of Senior
Debt to Adjusted Total Capitalization at any time to be
greater than the following amounts:
Fiscal Year(s) Ended February Required Ratio
----------------------------- --------------
1996 86.0%
1997 86.0%
1998 85.0%
1999 85.0%
2000 84.0%
2001 81.0%
2002 79.0%
2003 77.0%
(e) The Company will not permit the ratio of (i) the
sum of Available Cash Flow for the period consisting of the
four quarters most recently ended plus Net Cash to (ii) Pro
Forma Debt Service for the period consisting of (x) if such
determination is made on a day which is the last day of a
quarter, the four following quarters or (y) if such determi-
nation is made on any other day, the quarter in which a
determination is being made and the three following
quarters, at any time to be less than:
Fiscal Year Ended February Ratios
-------------------------- ------
1996 1.00 to 1.00
1997 1.10 to 1.00
1998 1.20 to 1.00
1999 .95 to 1.00
2000 .70 to 1.00
2001 .65 to 1.00
2002 .66 to 1.00
2003 1.00 to 1.00
(f) The Company will not create or permit to exist any
security interest in any contract (other than a lease) of
the Company or any Restricted Subsidiary obligating any
customer of the Company or such Restricted Subsidiary to use
storage services available at any Mortgaged Property for a
period of more than one year from the date of such contract.
(g) In connection with the Fogelsville, Pennsylvania
Mortgaged Property, the Company will upon the earlier of
(i) 60 days' prior written notice from the Investor or
(ii) the occurrence of an event of default under the
existing first mortgage on such property, either (A)(1)
prepay in full such existing first mortgage or (2) acquire
such existing first mortgage and subordinate such mortgage
to the Mortgage on such Property securing the Series A Bonds
and the Series B Bonds, in either case the effect of which
shall be to cause the Mortgage on such Property securing
such Bonds to constitute a first priority mortgage lien in
favor of the Trustee or (B) deposit with the Trustee
pursuant to the Cash Collateral Pledge Agreement a sum equal
to (x) 110 percent of the then current principal balance of
the first mortgage plus (y) accrued interest on such
principal balance through the date of such deposit; provided
that if for any reason the Investor shall acquire the debt
secured by such first mortgage, any amounts so expended by
the Investor shall be added to the Indebtedness secured
under the indenture. In the event the Company makes the
deposit as provided in (B) above, the Company will be
entitled at the end of each of the Company's fiscal quarters
to have released by the Trustee to the Company all cash
collateral deposited under (B) above, including any accrued
interest earned on such cash collateral, to the extent such
collateral exceeds the sum of the amounts set forth in
clauses (x) and (y) above as of the end of such quarter, and
the Company will be entitled to have all of such cash
collateral released of record when the first mortgage has
been indefeasibly legally satisfied or released, or when the
Company shall have acquired and subordinated the first
mortgage as provided in (A) above.
(h) (i) The Company shall not, and shall not permit
any Restricted Subsidiary, directly or indirectly, to
(w) declare or pay any dividend or make any distribution on
or in respect of its Capital Stock (including any distribu-
tion in connection with any merger or consolidation
involving the Company) or to the direct or indirect holders
of its Capital Stock (except dividends or distributions
payable solely in its Non-Convertible Capital Stock or in
options, warrants or other rights to purchase its Non-
Convertible Capital Stock and except dividends or distribu-
tions payable to the Company or a Restricted Subsidiary),
(x) purchase, redeem or otherwise acquire or retire for
value any Capital Stock of the Company or of any direct or
indirect Parent of the Company, (y) purchase, repurchase,
redeem, defease or otherwise acquire or retire for value,
prior to scheduled maturity, scheduled repayment or
scheduled sinking fund payment any Subordinated Debt (other
than the purchase, repurchase or other acquisition of
Subordinated Debt purchased in anticipation of and used for
satisfying a sinking fund obligation, principal installment
or final maturity, in each case due within one year of the
date of acquisition) or (z) make any Investment in any
Affiliate of the Company, other than a Restricted Subsidiary
or a Person which will become a Restricted Subsidiary as a
result of any such Investment (any such dividend, distribu-
tion, purchase, redemption, repurchase, defeasance, other
acquisition, retirement or Investment being hereinafter
referred to as a "Restricted Payment") if at the time the
Company or such Restricted Subsidiary makes such Restricted
Payment:
(A) a Default shall have occurred and be
continuing (or would result therefrom);
(B) the Company is not able to issue $1.00 of
additional Debt in accordance with the provisions of
Section 4.09(a) of the Indenture; or
(C) the aggregate amount of such Restricted
Payment and all other Restricted Payments since the
date on which the Series B Bonds were originally
issued, would exceed the sum of:
(1) 50% of the Adjusted Consolidated Net
Income of the Company and its Restricted
Subsidiaries accrued during the period (treated as
one accounting period) from December 1, 1992 to
the end of the most recent fiscal quarter ending
at least 45 days prior to the date of said
Restricted Payment (or, in case such Adjusted
Consolidated Net Income of the Company and its
Restricted Subsidiaries shall be a deficit, minus
100% of such deficit) and minus 100% of the amount
of any write-downs, write-offs, other negative
revaluations and other negative extraordinary
charges not otherwise reflected in Adjusted
Consolidated Net Income of the Company and its
Restricted Subsidiaries during such period;
(2) the aggregate Net Cash Proceeds received
by the Company from the issuance and sale of its
Capital Stock (other than Redeemable Stock or
Exchangeable Stock) subsequent to the date on
which the Series B Bonds were originally issued
(other than an issuance or sale to a Subsidiary or
an employee stock ownership plan);
(3) the aggregate Net Cash Proceeds received
by the Company from the issuance or sale of its
Capital Stock (other than Redeemable Stock or
Exchangeable Stock) to an employee stock ownership
plan subsequent to May 31, 1992, but (if such
employee stock ownership plan incurs any Debt)
only to the extent that any such proceeds are
equal to any increase in the Consolidated Net
Worth of the Company and its Restricted Subsidi-
aries resulting from principal repayments made by
such employee stock ownership plan with respect to
Debt incurred by it to finance the purchase of
such Capital Stock; and
(4) the amount by which Debt of the Company
and its Restricted Subsidiaries is reduced on the
consolidated balance sheet of the Company and its
Restricted Subsidiaries upon the conversion or
exchange (other than by a Restricted Subsidiary)
subsequent to the date on which the Series B Bonds
were originally issued of any Debt of the Company
or any Restricted Subsidiary convertible or
exchangeable for Capital Stock (other than
Redeemable Stock or Exchangeable Stock) of the
Company or any Restricted Subsidiary (less the
amount of any Cash, or other property, distributed
by the Company or any Restricted Subsidiary upon
such conversion or exchange).
(ii) The provisions of Section 6(h)(i) shall not prohibit:
(A) any purchase or redemption of Capital Stock
or Subordinated Debt of the Company made by exchange
for, or out of the proceeds of the substantially
concurrent sale of, Capital Stock of the Company (other
than Redeemable Stock or Exchangeable Stock and other
than Capital Stock issued or sold to a Subsidiary or an
employee stock ownership plan); PROVIDED, HOWEVER, that
(1) such purchase or redemption shall be excluded in
the calculation of the amount of Restricted Payments
made since the date the Series B Bonds were originally
issued and (2) the Net Cash Proceeds from such sale
shall be excluded from clauses (C)(2) and (C)(3) of
Section 6(h)(i);
(B) any purchase or redemption of Subordinated
Debt of the Company made by exchange for, or out of the
proceeds of the substantially concurrent sale of,
Subordinated Debt of the Company; PROVIDED, HOWEVER,
that such purchase or redemption shall be excluded in
the calculation of the amount of Restricted Payments
made since the date the Series B Bonds were originally
issued;
(C) dividends paid within 60 days after the date
of declaration thereof if at such date of declaration
such dividend would have complied with Section 6(h)(i);
PROVIDED, HOWEVER, that at the time of payment of such
dividend, no other Default shall have occurred and be
continuing (or result therefrom); PROVIDED FURTHER,
HOWEVER, that such dividend shall be included in the
calculation of the amount of Restricted Payments made
since the date the Series B Bonds were originally
issued;
(D) any repurchase of Capital Stock of the
Company after January 1, 1993 pursuant to the terms of
the Stockholders' Agreement from officers and employees
(or their estates) of the Company or its Restricted
Subsidiaries upon death, disability or termination of
employment of such officers and employees; PROVIDED,
HOWEVER, that (1) the aggregate amount of all such
repurchases (excluding repurchases made with proceeds
of life insurance policies maintained by the Company on
such employees or officers) in any fiscal year shall
not exceed $500,000; (2) to the extent that the
aggregate amount of such repurchases (excluding
repurchases made with proceeds of life insurance
policies maintained by the Company on such employees or
officers) in any fiscal year is less than $500,000, the
difference between $500,000 and such amount may be
carried forward and applied to repurchases in
subsequent fiscal years; and (3) all such repurchases
shall be included in the calculation of the amount of
Restricted Payments made since the date the Series B
Bonds were originally issued;
(E) Cash dividends paid after January 1, 1993
with respect to the ESOP Preferred Stock; PROVIDED,
HOWEVER, that (1) the aggregate amount of all such
dividends paid in any fiscal year shall not exceed
$500,000; (2) to the extent that the aggregate amount
of such dividends paid in any fiscal year is less than
$500,000, the difference between $500,000 and such
amount may be carried forward and applied to the
payment of such dividends in subsequent fiscal years;
and (3) all such dividends shall be included in the
calculation of the amount of Restricted Payments made
since the date the Series B Bonds were originally
issued;
(F) Investments in Unrestricted Subsidiaries, not
to exceed, in the aggregate, during the term of this
Agreement, the lesser of (1) $5,000,000 and (2)
$7,000,000 minus the amount of Restricted Payments made
pursuant to clause (G) below; PROVIDED, HOWEVER, that
all such Investments shall be excluded in the
calculation of the amount of Restricted Payments made
since the date the Series B Bonds were originally
issued; or
(G) Restricted Payments not to exceed, in the
aggregate, during the term of this Agreement, the
lesser of (l) $5,000,000 and (2) $7,000,000 minus the
amount of Investments in Unrestricted Subsidiaries made
during the term of Indenture; PROVIDED, HOWEVER, that
Restricted Payments made pursuant to this clause (H)
shall be included in the calculation of the amount of
Restricted Payments made since the date the Series B
Bonds were originally issued.
(i) The Company shall not use or commit to use any
cash for Capital Expenditures in any fiscal quarter in
excess of $10,000,000 for any single Capital Expenditure or
any related Capital Expenditures, unless (y) after giving
effect thereto the Company is in compliance with
Section 6(b) of this Agreement and (z) prior to such use or
commitment the Company has furnished to Investor internal
capital expenditure approval documentation detailing the
total cost, specifications and other information related to
such Capital Expenditure(s) and detailing the Company's
compliance with the condition in clause (y) of this
paragraph (i).
(j) Notwithstanding Section 4.12 of the Indenture the
Company shall not sell, transfer or otherwise dispose of any
shares of Capital Stock of any Restricted Subsidiary if,
after giving effect to such sale, transfer or disposition,
there exists any Default.
SECTION 7. EVENTS OF DEFAULT. An "Event of Default"
hereunder occurs if:
(a) the Company fails to pay any installment of
interest on any Series A Bond when the same becomes due and
such failure continues for a period of five days; or
(b) the Company fails to observe or perform any of its
other covenants or agreements set forth or incorporated in
this Agreement and such failure continues for a period of
30 days; or
(c) any material representation, warranty or other
statement made by or on behalf of the Company set forth or
incorporated in this Agreement shall prove to have been
false or misleading in any material respect as of the date
when made hereunder; or
(d) any event shall occur or any condition shall exist
in respect of any Indebtedness of the Company (other than
the Series A Bonds and the Series B Bonds) or a Subsidiary
of the Company in a principal (or capitalized) amount of at
least $2,500,000, or under any agreement securing or
relating to any such Indebtedness, the effect of which is to
cause or permit any holder of such Indebtedness or a trustee
to cause the acceleration of the maturity of such Indebted-
ness, or any such Indebtedness shall not have been paid at
the final maturity date thereof (as renewed or extended if
such Indebtedness shall have been renewed or extended) and
any applicable grace period shall have expired;
and in any such case the Investor notifies the Company and the
Trustee that an Event of Default has occurred hereunder.
SECTION 8. RELEASE OF COLLATERAL; ADDITIONS OF
MORTGAGED PROPERTIES TO THE TRUST ESTATE.
(a) If the Company plans to release a Mortgaged
Property or Properties from the lien of the Mortgage or Mortgages
on such Property or Properties pursuant to Section 3.01 of the
Indenture (other than in connection with the sale of economically
obsolete Mortgaged Property in accordance with the provisions of
Section 3.01(e)(i), the sale of a Mortgaged Property or Proper-
ties (or the portion of the Company's Kansas City, Kansas
Mortgaged Property used exclusively in the Company's quarry
operations) in accordance with the provisions of
Section 3.01(e)(ii), certain events of casualty, condemnation or
taxation in accordance with the provisions of Section 3.01(d),
partial releases in accordance with the provisions of
Section 3.01(f), the sale of the Brooks, Oregon or Watsonville,
California properties in accordance with the provisions of
3.01(g), or any release in accordance with the provisions of
Section 3.01(i) of the Indenture), it shall, at least 45 days
prior to the proposed date of release, provide the Investor with
a list of Mortgaged Properties including at least two more
Properties than the number proposed to be released, and shall
promptly thereafter furnish the Investor with such information
relating to such Properties as is maintained in the ordinary
course of the Company's business as the Investor shall reasonably
request. Within 30 days of its receipt of such information, the
Investor shall designate such Properties, if any, which it
believes should not be released, it being understood that (i) the
Investor shall not object to a number of Properties at least
equal to the number proposed to be released and (ii) the Investor
will not object to the release of the Brooks, Oregon Property
(assuming the release of such Property otherwise complies with
the provisions regarding the release of Properties generally).
The Company shall not have any Mortgaged Property (or the portion
of the Company's Kansas City, Kansas Mortgaged Property used
exclusively in the Company's quarry operations) released under
Section 3.01(e)(ii) of the Indenture without the approval and
consent of the Investor. The Company shall exercise its rights
under Section 3.01 of the Indenture only with respect to the
Mortgaged Properties accepted for release by the Investor as
provided in the preceding sentences of this paragraph.
(b) The Company will not substitute property for
(x) cash held by the Trustee in the case of property which is to
become subject to a first Lien on such property in accordance
with the final paragraph of Section 4.27(a) and Section 4.27(b),
or (y) Mortgaged Properties released from the lien of their
respective Mortgages pursuant to Section 3.01(e)(ii) of the
Indenture, without the prior written approval and consent of the
Investor.
SECTION 9. REQUIRED PREPAYMENTS; PREPAYMENT PRICE;
OPTIONS TO REQUIRE PURCHASE.
(a) In addition to any prepayment required by the
Indenture, the Company shall be required to prepay Series A
Bonds in the following circumstances and in the principal
amounts indicated:
(1) At any time the Company prepays any Series B
Bonds pursuant to Section 3.01(b) of the Indenture, the
Company shall, concurrently with such prepayment of
Series B Bonds, prepay the entire principal amount of
the Series A Bonds.
(2) On March 9, 1996, the Company shall prepay a
principal amount of Series A Bonds equal to the
difference, if any, between (x) $21,525,588 and (y) the
value of Mortgaged Properties acceptable to the
Investor that have become subject to the lien of a
Mortgage (or, in the case of the construction of an
addition upon property which is already subject to the
lien of a Mortgage, including but not limited to the
addition to the Issuer's Tomah, Wisconsin facility
constructed in 1994, the value of each addition, with
respect to which the conditions specified in
Section 4.27 of the Indenture for qualification of the
addition as Mortgaged Property are satisfied) after
April 12, 1995 and prior to March 9, 1996 (other than
Mortgaged Properties acquired with Cash or Government
Obligations held by the Trustee pursuant to
Section 3.01(e)(ii) of the Indenture); PROVIDED,
HOWEVER, that no such prepayment shall be required if
the difference between the amounts described above in
clauses (x) and (y) is less than $50,000.
(3) If the Company or any Affiliate of the
Company or other Person acting on behalf of the Company
acquires Series B Bonds, in open market purchases or
otherwise (excluding, however, any redemption of
Series B Bonds in accordance with the terms of the
Indenture and this Agreement that occurs concurrently
with a pro rata redemption of Series A Bonds), the
Company shall give written notice thereof to the
Investor. Such notice shall contain an offer by the
Company to prepay all of the Series A Bonds held by the
Investor and its Affiliates on a date specified in such
notice (which date shall be no less than 30 and no more
than 60 days from the date of such notice). If the
Investor shall notify the Company in writing within
20 days after receipt of such notice that the Investor
will accept such offer, the Company will prepay on the
date specified in such notice, all of the Series A
Bonds held by the Investor and its Affiliates.
(4) Upon an Asset Disposition the Company shall
apply to the prepayment of an aggregate principal
amount of Senior Debt of the Company an amount equal to
the amount of Net Available Cash not applied within
360 days of such Asset Disposition to the acquisition
of Tangible Property acceptable to the Investor. If
any Series A Bonds or Series B Bonds are to be prepaid
pursuant to this clause (4), the respective principal
amounts of any Series A Bonds and Series B Bonds to be
prepaid shall be determined PRO RATA based on the
respective principal amounts of Series A Bonds and
Series B Bonds outstanding (and not theretofore called
for redemption) on the date the prepayment is to be
made.
(5) At any time the Company exercises its legal
defeasance option or covenant defeasance option
pursuant to Article Six of the Indenture, the Company
shall, concurrently with the exercise of such option,
prepay the entire principal amount of the Series A
Bonds.
(b) With respect to any prepayment or purchase of
Series A Bonds required by paragraph (a) of this Section 9
or permitted or required under the Indenture (other than a
repurchase upon a Change of Control, a prepayment pursuant
to Section 3.01(d) of the Indenture, a redemption under
Section 3.01(g) of the Indenture in connection with a sale
of the Watsonville, California Property or any redemption or
prepayment described in clauses (x), (y) and (z) of the
following paragraph ) the Company agrees that the repurchase
or purchase price applicable to such prepayment or purchase
of such Series A Bonds shall be the greater of (i) the
prepayment price provided in Section 3.01(b) of the
Indenture with respect to the Series A Bonds for the date on
which such prepayment or purchase is to be made, if any, and
(ii) the prepayment price set forth below (expressed as a
percentage of the principal amount to be prepaid or
purchased) for the date on which such prepayment or purchase
is to be made (together with accrued interest to the date of
prepayment or purchase)
Year beginning March 1 Prepayment Price
---------------------- ----------------
1995 111.500%
1996 109.583%
1997 107.666%
1998 105.750%
1999 103.833%
2000 101.917%
2001 and thereafter 100.000%
Notwithstanding the provisions of the Indenture and the
foregoing provisions of this paragraph (b), the Investor,
for itself and its successors and assigns, agrees that the
Company shall not be required to pay any premium whatsoever,
and the Investor hereby irrevocably waives and relinquishes
the right to demand or collect any premium and agrees to
allow prepayment or redemption at 100% of the principal
amount of Series A Bonds in the following circumstances:
(x) the redemption of $10,000,000 of Series A Bonds held by
the Investor as provided in Section 14(b)(2); (y) any
optional redemption or prepayment or any redemption or
prepayment under Section 9(a)(1), (2), (3) or (4) above,
either in whole or in part, of Series A Bonds on one or more
occasions within the 18-month period immediately following
the Effective Date (as defined in the Plan); and (z) any
optional redemption or prepayment or any redemption or
prepayment under Section 9(a)(1), (2), (3) or (4) above of
additional Series A Bonds on one or more occasions up to a
total of $25,000,000 (less the amount of Series A Bonds
redeemed or prepaid within the 18-month period described in
clause (y) above), whenever such redemption shall occur.
The redemptions and prepayments described in clauses (y) and
(z) above shall be made pro rata among the holders of the
Series A Bonds based upon their respective principal amounts
held as of the date of redemption or prepayment. On or
before the Effective Date (as defined in the Plan), and in
any event prior to any sale or transfer of Series A Bonds by
the Investor, the Company and the Investor shall execute
such waivers, consents and amendments of the provisions of
Section 3.01(b) (except part (B) of the proviso at the end
of such subsection) and other related provisions of the
Indenture, and shall take such other actions, as may be
reasonably necessary under the Indenture to permit the
redemptions and prepayments described in clause (x), (y) and
(z) above and to give full effect to the agreements and
waivers provided for in this paragraph; provided, however,
that the Investor shall not be required to waive any Default
or Event of Default.
(c) Promptly and in any event within ten days after
the occurrence of any Change in Control the Company shall
give written notice thereof to the Investor. Such notice
shall contain an offer by the Company to purchase all of the
Series A Bonds held by the Investor and its Affiliates on a
date specified in such notice (which date shall be no less
than 30 and no more than 60 days from the date of such
notice). If the Investor shall notify the Company in
writing within 20 days after receipt of such notice that the
Investor will accept such offer, the Company will prepay, on
the date specified in such notice, all of the Series A Bonds
held by the Investor and its Affiliates at a purchase price
equal to 101% of the aggregate principal amount of such
Series A Bonds, plus accrued and unpaid interest, if any, to
the date of purchase.
To the extent not otherwise provided for in this Agreement, pre-
payments required under this Section 9 shall be made at the times
and upon the notice (other than as set forth above in
Section 9(c)) provided in Article Three of the Indenture.
SECTION 10. PAYMENT. Notwithstanding any provision to
the contrary in the Series A Bonds or the Indenture, the Company
will promptly and punctually pay and will cause the Trustee to
pay to the Investor in the manner and at the address provided in
Schedule V hereto (or in such other manner or at such other
address as the Investor may from time to time designate by
written notice to the Company) all amounts payable in respect of
the principal of, and premium, if any, and interest on, any
Series A Bonds then held by the Investor or any of its Affili-
ates, without any presentment thereof and without any notation of
such payment being made thereon.
In the event that the Investor or any of its Affiliates
shall sell any Series A Bonds, the Investor or such Affiliate
shall, prior to the delivery of such Series A Bonds, make or
cause to be made a notation thereon of the date to which interest
has been paid thereon and, if not theretofore made, a notation of
the extent to which payment has been made on account of the
principal thereof.
The Company has obtained the agreement of the Trustee
to be bound by the foregoing provisions of this section.
SECTION 11. INDEMNITY. Notwithstanding Section 2.07
of the Indenture, the Investor's unsecured indemnity agreement in
favor of the Company and the Trustee (and any Paying Agent or
Registrar under the Indenture) shall constitute sufficient indem-
nity for all purposes of said section in the case of mutilation,
destruction, loss or theft of any of the Series A Bonds.
SECTION 12. SURVIVAL OF REPRESENTATIONS AND
WARRANTIES. All representations and warranties of the Company
herein and in any certificates or other instruments delivered
pursuant to this Agreement shall survive the execution and
delivery of this Agreement , and shall continue in effect so long
as this Agreement is in effect.
SECTION 13. EXPENSES. The Company shall reimburse the
Investor for its reasonable out-of-pocket expenses (including
fees of Smith, Barney and fees and disbursements of Willkie
Farr & Gallagher and any other counsel) in connection with its
execution of this Agreement and its consent to the Plan. The
Company shall also reimburse the Investor for its reasonable
out-of-pocket expenses (including fees and disbursements of
counsel) in connection with any amendment or requested amendment
of, or waiver or consent or requested waiver or consent under or
with respect to, this Agreement, the Indenture, any Security
Document or any of the Series A Bonds, whether or not the same
shall become effective, and in connection with the enforcement by
the Investor of any of its rights under this Agreement, the
Indenture, any Security Document or any of the Series A Bonds.
The obligations of the Company under this section shall survive
termination of this Agreement, payment of the Series A Bonds, and
payment of the fees and expenses under Section 14(c)(4) hereof.
SECTION 14. CONSENT; CONDITIONS TO EFFECTIVENESS.
(a) Subject to the conditions in paragraph (c) of this
Section 14, the Investor hereby consents to the issuance of
the New Subordinated Debentures in exchange for the Old
Subordinated Debentures pursuant to the Plan.
(b) The Company hereby agrees on the Effective Date
(as defined in the Plan) to:
(1) pay the Investor an agreement modification
fee in an amount equal to one and one-half percent
(1.50%) of the principal amount of Series A Bonds then
held by the Investor (prior to giving effect to the
redemption required under (b)(2) below); and
(2) redeem $10,000,000 principal amount of
Series A Bonds held by the Investor without premium.
(c) The effectiveness of the amendments reflected in
this Agreement is subject to the following conditions and
such amendments shall not be effective until all of such
conditions are satisfied:
(1) the Plan shall have been confirmed and shall
have become effective;
(2) the obligations of the Company under
Section 14(b) above shall have been performed;
(3) the Investor shall have approved the form of
order approving the Disclosure Statement, the
Confirmation Order (as defined in the Plan) and the
final forms of the other documents contemplated by the
Plan, which approval shall not be unreasonably withheld
provided that the matter for which approval is sought
does not affect the terms or conditions of this
Agreement or the Series A Bonds or the treatment of the
Investor in the Plan. The Investor's approval of
matters affecting the terms and conditions of this
Agreement or the Series A Bonds or the treatment of the
Investor in the Plan may be given or withheld in the
Investor's discretion;
(4) all of Investor's expenses incurred and
billed as of the Effective Date (as defined in the
Plan) in connection with the negotiation and execution
of this Agreement (including the fees of Smith, Barney
and the fees and disbursements of Willkie Farr &
Gallagher) shall have been paid in full;
(5) the representations and warranties set forth
in Section 2 hereof shall be true in all respects, and
there shall exist no Default or Event of Default under
this Agreement or the Indenture; and
(6) the Investor shall have received such legal
opinions, such executed copies of all officers'
certificates, and copies of all other corporate
documents, consents and other documents, as it shall
reasonably require.
SECTION 15. RIGHTS CUMULATIVE. The Company
acknowledges that this Agreement provides for restrictions on the
Company and benefits for the holders of the Series A Bonds that
are in addition to the restrictions and benefits provided in the
Indenture. To the extent any action prohibited by this Agreement
would be permitted by the Indenture, or to the extent this Agree-
ment would require any action not required by the Indenture, this
Agreement shall govern.
SECTION 16. PARTIAL TERMINATION. Sections 6, 7, 8 and
9 of this Agreement shall terminate if either (a) at any time the
Investor and its Affiliates do not own at least 25% of the
outstanding principal amount of Series A Bonds or (b) at any time
the Investor shall hold less than $25 million in aggregate
principal amount of the Series A Bonds provided that for the
purposes of this clause (b) only, any Series A Bonds that have
been redeemed or prepaid pursuant to the Indenture (other than
pursuant to Section 3.01(d), Section 3.01(g) in connection with a
sale of the Watsonville, California Property or Section 3.06
thereof) or prepaid hereunder shall be deemed to remain
outstanding and, if held by the Investor at the time of such
redemption or prepayment, shall be deemed to be held by the
Investor. All other provisions of this Agreement shall survive
so long as the Investor or any of its Affiliates holds any Series
A Bonds. This Agreement shall terminate when neither the
Investor nor any of its Affiliates continues to hold any Series A
Bonds.
SECTION 17. SUCCESSORS. This Agreement shall inure to
the benefit of and be binding upon (a) the Company and its succes-
sors and assigns and (b) the Investor and its successors and
assigns through merger, consolidation or other corporate
reorganization or by transfer of Series A Bonds to any Subsidiary
of the Investor, but not through any purchase or sale of Series A
Bonds by or to any Person which is not a Subsidiary of the
Investor; provided, however, that the second paragraph of
Section 9(b) shall be binding upon all successors and assigns of
the Investor.
SECTION 18. CONSTRUCTION. This Agreement shall be
construed and enforced in accordance with the substantive laws of
the State of New York.
SECTION 19. AMENDMENTS. No change, modification,
waiver, discharge, amendment or addition to this Agreement shall
be binding unless it is in writing and signed by the Company and
the Investor.
SECTION 20. NOTICES. Any notice required to be given
in writing by any party to this Agreement shall be mailed by
registered or certified mail, return receipt requested, postage
and fees prepaid, and addressed as follows:
If addressed to the Company:
Americold Corporation
Attention: Joel M. Smith
7007 SW Cardinal Lane, Suite 135
Portland, Oregon 97224
with a copy to:
Bruce G. Berning
Tonkon, Torp, Galen, Marmaduke & Booth
1600 Pioneer Tower
888 SW Fifth Avenue
Portland, Oregon 97204
If addressed to the Investor:
Metropolitan Life Insurance Company
Attention: Treasurer
One Madison Avenue
New York, New York 10010
with a copy to:
Metropolitan Life Insurance Company
Attention: Vice President
2601 Main Street, Suite 1210
Irvine, California 92714
and with a copy to:
Metropolitan Life Insurance Company
Workout Unit
200 Park Avenue
21st Floor
New York, New York 10166
Any party may, by notice in writing to the other, change the name
and address to which notices or other communications to him shall
be mailed. Any such notice shall be effective four business days
after the date of mailing by first-class, registered or certified
mail, return receipt requested, postage and fees prepaid.
SECTION 21. HEADINGS. The section and other headings
contained in this Agreement are for reference purposes only and
shall not affect the interpretation of this Agreement.
SECTION 22. COUNTERPARTS. This Agreement may be
executed in several counterparts, each of which shall be deemed
an original but all of which together shall constitute one and
the same instrument.
IN WITNESS WHEREOF, the parties hereto have duly
executed this Agreement on the day and year first above written.
AMERICOLD CORPORATION
By /s/ Lon V. Leneve
-----------------------------------------
Name: Lon V. Leneve
Title: Vice President, Secretary &
Treasurer
METROPOLITAN LIFE INSURANCE COMPANY
By /s/ Jacqueline Jenkins
---------------------------------------------------
Name: Jacqueline Jenkins
Title: Assistant Vice President
<PAGE>
<PAGE>
SCHEDULE I
LIST OF SUBSIDIARIES
Americold Services Corporation
(100% ownership)
Americold Acquisition Co.
(100% ownership)
<PAGE>
<PAGE>
SCHEDULE II
STORAGE AGREEMENT CUSTOMERS
BY LOCATION
[with contracts longer than one year]
Facility Customer Agreement Expiry
- -------- -------- --------- ------
BROOKS, OR Norpac Foods Storage Agreement 01/03/05
SALEM, OR and Option to
Purchase Real
Property 4/1/88
Agreement regarding 03/31/98
Distribution Program
4/1/88. Modified
by Letter of Intent
9/12/93.
FOGELSVILLE, PA Ore-Ida Foods Agreement for Services 01/22/03
dated 1/22/93.
NAMPA, ID J. R. Simplot Proposal dated 2/1/93. 01/31/96
PLOVER, WI Ore-Ida Foods Warehouse Construction 03/01/05
and Storage Agreement
dated 1/11/78.
Agreement for Services
dated 1/22/93.
TOMAH, WI Ocean Spray Storage Agreement 09/30/04
Cranberries, Inc. dated 9/15/94
WATERTOWN, MA Gorton Division Storage and Freezing 12/19/04
of General Mills Agreement 12/20/84
WATSONVILLE, CA Richard A. Shaw Construction and 12/31/24
Storage Agreement
2/1/84
<PAGE>
<PAGE>
Schedule III
Subordination*
--------------
SECTION __.01. SECURITIES SUBORDINATED TO SENIOR DEBT.
The Company and the [Trustee] each covenants and agrees and each
[securityholder], by its acceptance of a [security], likewise
covenants and agrees that all [securities] shall be issued subject
to the provisions of this Article; and each [Person] holding any
[security], whether upon original issue or upon transfer,
assignment or exchange thereof, accepts and agrees that [this Debt)
shall, to the extent and in the manner set forth in this Article,
be subordinated in right of payment to the prior payment in full,
in cash or cash equivalents, of all amounts payable under Senior
Debt, including, without limitation, the Company's obligations
under the New Credit Agreement, the First Mortgage Bonds Indenture
and the Second Amended and Restated Investment Agreement, dated as
of _______, 1995 between the Company and Metropolitan Life
Insurance Company (the "Investment Agreement") (including any
interest accruing subsequent to [a bankruptcy event] specified in
Sections ____________ of this [Indenture], whether or not such
interest is an allowed claim enforceable against the debtor under
the United States Bankruptcy Code).
SECTION __.02. NO PAYMENT ON SECURITIES IN CERTAIN
CIRCUMSTANCES. (a) No direct or indirect payment or distribution
by or on behalf of the Company on account of principal of, interest
on and premium, if any, and penalties and fees ("Other Subordinated
Obligations") with respect to [this Debt], whether pursuant to the
terms of the [securities] or upon acceleration or otherwise, and no
payment to acquire, repurchase, retire, redeem or defease any of
the [securities] shall be made if, at the time of such payment,
there exists a default in the payment of all or any portion of the
obligations on any Senior Debt, and such default shall not have
been cured or waived or the benefits of this sentence waived by or
on behalf of the holders of such Senior Debt.
(b) During the continuance of any other event of
- ------------------------
* Capitalized terms used herein and not otherwise defined
herein have the meanings specified thereof or in the
Indenture, dated as of ____ __, 1995 between Americold
Corporation (the "Company") and United States Trust
Company of New York (the "1995 Indenture"), except for
bracketed capitalized terms, which shall be replaced,
depending on the context, with appropriate terms.
default with respect to the New Credit Agreement, the First
Mortgage Bonds, the Investment Agreement or other Senior Debt
pursuant to which the maturity thereof may be accelerated and (A)
upon receipt by the [Trustee] of written notice from any holder or
holders (or representatives thereof) of such Senior Debt in the
aggregate principal amount of $10 million or (B) if such event of
default under the New Credit Agreement, the First Mortgage Bonds,
the Investment Agreement or other Senior Debt results from the
acceleration of the [securities], from and after the date of such
acceleration, no payment of principal of, interest on, and Other
Subordinated Obligations with respect to [this Debt] may be made by
or on behalf of the Company upon or in respect of the [securities]
for a period (a "Payment Blockage Period") commencing on the
earlier of the date of receipt of such notice or the date of such
acceleration and ending 179 days thereafter (unless such Payment
Blockage Period shall be terminated by written notice to the
[Trustee] from the relevant entity giving notice commencing the
Payment Blockage Period or such event of default has been cured or
waived or by repayment in full of cash or cash equivalents of such
Senior Debt). Not more than one Payment Blockage Period pursuant
to this Section __.02(b) may be commenced with respect to the
[securities] during any period of 360 consecutive days.
Notwithstanding anything in this Indenture to the contrary, there
must be 180 consecutive days in any 360-day period in which no
Payment Blockage Period is in effect. For all purposes of this
Section __.02(b), no event of default (other than an event of
default pursuant to the financial maintenance covenants under the
New Credit Agreement, the First Mortgage Bonds Indenture or the
Investment Agreement) that existed or was continuing (it being
acknowledged that any subsequent action that would give rise to an
event of default pursuant to any provision under which an event of
default previously existed or was continuing shall constitute a new
event of default for this purpose) on the date of the commencement
of any Payment Blockage Period with respect to the New Credit
Agreement, the First Mortgage Bonds, the Investment Agreement or
other Senior Debt initiating such Payment Blockage Period shall be,
or shall be made, the basis for the commencement of a second
Payment Blockage Period by the representative for, or the holders
of, such Senior Debt, whether or not within a period of 360
consecutive days, unless such event of default shall have been
cured or waived for a period of not less than 90 consecutive days.
(c) In the event that, notwithstanding the foregoing,
any payment shall be received by the [Trustee] or any Holder when
such payment is prohibited by Section __.02(a) or __.02(b) of this
[Indenture], the [Trustee] shall promptly notify the holders of
Senior Debt of such prohibited payment and such payment shall be
held in trust for the benefit of, and shall be paid over or
delivered to, the holders of Senior Debt or their respective
representatives, or to the trustee or trustees under any indenture
pursuant to which any of such Senior Debt may have been issued, as
their respective interests may appear, but only to the extent that,
upon notice from the [Trustee] to the holders of Senior Debt that
such prohibited payment has been made, the holders of the Senior
Debt (or their representative or representatives or a trustee)
within 30 days of receipt of such notice from the [Trustee] notify
the [Trustee] of the amounts then due and owing on the Senior Debt,
if any, and only the amounts specified in such notice to the
[Trustee] shall be paid to the holders of Senior Debt and any
excess above such amounts due and owing on Senior Debt shall be
paid to the Company.
SECTION __.03. PAYMENT OVER OF PROCEEDS UPON
DISSOLUTION. ETC. (a) Upon any payment or distribution of assets
or securities of the Company, as the case may be, of any kind or
character, whether in cash, property or securities, upon any
dissolution or winding up or total or partial liquidation or
reorganization of the Company, whether voluntary or involuntary or
in bankruptcy, insolvency, receivership or other proceedings, all
amounts due or to become due upon all Senior Debt (including any
interest accruing subsequent to [a bankruptcy event] specified in
Sections ___________ of this [Indenture], whether or not such
interest is an allowed claim enforceable against the debtor under
the United States Bankruptcy Code) shall first be paid in full, in
cash or cash equivalents, before the [securityholders] or the
[Trustee] on behalf of the [securityholders] shall be entitled to
receive any payment by or on behalf of the Company on account of
principal of, interest on, and Other Subordinated Obligations with
respect to, [this Debt], or any payment to acquire, repurchase,
retire, redeem or defease any of the [securities] for cash,
property or securities, or any distribution with respect to the
[securities] of any cash, property or securities. Before any
payment may be made by, or on behalf of, the Company on account of
principal of, interest on, and Other Subordinated Obligations with
respect to [this Debt] upon any such dissolution, winding up,
liquidation or reorganization, any payment or distribution of
assets or securities of the Company of any kind or character,
whether in cash, property or securities, to which the
[securityholders] or the [Trustee] on behalf of the
[securityholders] would be entitled, but for the provisions of this
Article, shall be made by the Company or by any receiver, trustee
in bankruptcy, liquidating trustee, agent or other similar [Person]
making such payment or distribution, or by the [securityholders] or
the [Trustee] if received by them or it, directly to the holders of
Senior Debt (pro rata to such holders on the basis of the
respective amounts of Senior Debt held by such holders) or their
representatives, or to any trustee or trustees under any other
indenture pursuant to which any such Senior Debt may have been
issued, as their respective interests appear, to the extent
necessary to pay all such Senior Debt in full, in cash or cash
equivalents, after giving effect to any concurrent payment,
distribution or provision therefor to or for the holders of such
Senior Debt.
(b) To the extent any payment of Senior Debt (whether by
or on behalf of the Company, as proceeds of security or enforcement
of any right of setoff or otherwise) is declared to be fraudulent
or preferential, set aside or required to be paid to any receiver,
trustee in bankruptcy, liquidating trustee, agent or other similar
[Person] under any bankruptcy, insolvency, receivership, fraudulent
conveyance or similar law, then if such payment is recovered by, or
paid over to, such receiver, trustee in bankruptcy, liquidating
trustee, agent or other similar [Person], the Senior Debt or part
thereof originally intended to be satisfied shall be deemed to be
reinstated and outstanding as if such payment had not occurred. To
the extent the obligation to repay any Senior Debt is declared to
be fraudulent, invalid, or otherwise set aside under any
bankruptcy, insolvency, receivership, fraudulent conveyance or
similar law, then the obligation so declared fraudulent, invalid or
otherwise set aside (and all other amounts that would come due with
respect thereto had such obligation not been so affected) shall be
deemed to be reinstated and outstanding as Senior Debt for all
purposes hereof as if such declaration, invalidity or setting aside
had not occurred.
(c) In the event that, notwithstanding the foregoing
provision prohibiting such payment or distribution, any payment or
distribution of assets or securities of the Company of any kind or
character, whether in cash, property or securities, shall be
received by the [Trustee] or any [securityholder] at a time when
such payment or distribution is prohibited by Section __.03(a) of
this [Indenture] and before all obligations in respect of Senior
Debt are paid in full, in cash or cash equivalents, such payment or
distribution shall be received and held in trust for the benefit
of, and shall be paid over or delivered to, the holders of Senior
Debt (pro rata to such holders on the basis of the respective
amount of Senior Debt held by such holders) or their
representatives, or to the trustee or trustees under any other
indenture pursuant to which any such Senior Debt may have been
issued, as their respective interests appear, for application to
the payment of Senior Debt remaining unpaid until all such Senior
Debt has been paid in full, in cash or cash equivalents, after
giving effect to any concurrent payment distribution or provision
therefor to or for the holders of such Senior Debt.
(d) The consolidation of the Company with, or the merger
of the Company with or into, another corporation or the liquidation
or dissolution of the Company following the sale, conveyance,
transfer, lease or other disposition of all or substantially all of
its property and assets to another corporation upon the terms and
conditions provided in [Article ____] of this [Indenture] shall not
be deemed a dissolution, winding up, liquidation or reorganization
for the purposes of this Section __.03 if such other corporation
shall, as a part of such consolidation, merger, sale, conveyance,
transfer, lease or other disposition, assume the obligations of the
Company with respect to Senior Debt and otherwise comply with the
conditions stated in Article ____ of this [Indenture].
SECTION __.04. SUBROGATION. (a) Upon the payment in
full of all Senior Debt, in cash or cash equivalents, the
[securityholders] shall be subrogated to the rights of the holders
of Senior Debt to receive payments or distributions of cash,
property or securities of the Company made on such Senior Debt
until the principal of and interest on the [securities] shall be
paid in full; and, for the purposes of such subrogation, no
payments or distributions to the holders of the Senior Debt of any
cash, property or securities to which the [securityholders] or the
[Trustee] on their behalf would be entitled except for the
provisions of this Article, and no payment pursuant to the
provisions of this Article to the holders of Senior Debt by the
[securityholders] or the [Trustee] on their behalf shall, as
between the Company, its creditors other than holders of Senior
Debt, and the [securityholders], be deemed to be a payment by the
Company to or on account of the Senior Debt. It is understood that
the provisions of this Article are intended solely for the purpose
of defining the relative rights of the [securityholders], on the
one hand, and the holders of the Senior Debt, on the other hand.
(b) If any payment or distribution to which the
[securityholders] would otherwise have been entitled but for the
provisions of this Article shall have been applied pursuant to the
provisions of this Article, to the payment of all amounts payable
under Senior Debt, then, and in such case, the [securityholders]
shall be entitled to receive from the holders of such Senior Debt
any payments or distributions received by such holders of Senior
Debt in excess of the amount required to make payment in full, in
cash or cash equivalents, of such Senior Debt of such holders.
SECTION __.05. OBLIGATIONS OF COMPANY UNCONDITIONAL.
(a) Nothing contained in this Article or elsewhere in this
[Indenture] or in the [securities] is intended to or shall impair,
as among the Company and the [securityholders], the obligation of
the Company, which is absolute and unconditional, to pay to the
[securityholders] the principal of, and interest on, and Other
Subordinated Obligation with respect to the [securities] as and
when the same shall become due and payable in accordance with their
terms, or is intended to or shall affect the relative rights of the
[securityholders] and creditors of the Company other than the
holders of the Senior Debt, nor shall anything herein or therein
prevent the [securityholders] or the [Trustee] on their behalf from
exercising all remedies otherwise permitted by applicable law upon
default under this Indenture, subject to the rights, if any, under
this Article of the holders of the Senior Debt.
(b) Without limiting the generality of the foregoing,
nothing contained in this Article will restrict the right of the
[Trustee] or the [securityholders] to take any action to declare
the Securities to be due and payable prior to their stated maturity
pursuant to [the acceleration provision] of this [Indenture] or to
pursue any rights or remedies hereunder; PROVIDED, HOWEVER, that
all Senior Debt then due and payable or thereafter declared to be
due and payable shall first be paid in full, in cash or cash
equivalents, before the [securityholders] or the [Trustee] are
entitled to receive any direct or indirect payment of principal of,
interest on, and Other Subordinated Obligation with respect to
[this Debt] from the Company.
SECTION __.06. NOTICE TO TRUSTEE. (a) The Company
shall give prompt written notice to the [Trustee] of any fact known
to the Company that would prohibit the making of any payment to or
by the [Trustee] in respect of the [securities] pursuant to the
provisions of this Article. The [Trustee] shall not be charged
with knowledge of the existence of any default or event of default
with respect to any Senior Debt or of any other facts that would
prohibit the making of any payment to or by the [Trustee] unless
and until the [Trustee] shall have received notice in writing at
its Corporate Trust Office to that effect signed by an Officer, or
by a holder of Senior Debt, or trustee or agent therefor; and prior
to the receipt of any such written notice, the [Trustee] shall,
subject to [other provisions hereof regarding the rights and
obligations of the [Trustee]], be entitled to assume that no such
facts exist; PROVIDED that, if the [Trustee] shall not have
received the notice provided for in this Section __.06 at least two
Business Days prior to the date upon which, by the terms of this
[Indenture], any monies shall become payable for any purpose
(including, without limitation, the payment of the principal of,
interest on, and Other Subordinated Obligations with respect to any
[security]), then, notwithstanding anything herein to the contrary,
the [Trustee] shall have full power and authority to receive any
monies from the Company and to apply the same to the purpose for
which they were received, and shall not be affected by any notice
to the contrary that may be received by it on or after such prior
date except for an acceleration of the [securities] prior to such
application. Nothing contained in this Section __.06 shall limit
the right of the holders of Senior Debt to recover payments as
contemplated by this Article. The foregoing shall not apply if the
[Paying Agent] is the Company. The [Trustee] shall be entitled to
rely on the delivery to it of a written notice by a [Person]
representing himself or itself to be a holder of any Senior Debt
(or a trustee on behalf of, or other representative of, such
holder) to establish that such notice has been given by a holder of
such Senior Debt or a trustee or representative on behalf of any
such holder.
(b) In the event that the [Trustee] determines in good
faith that any evidence is required with respect to the right of
any [Person] as a holder of Senior Debt to participate in any
payment or distribution pursuant to this Article, the [Trustee] may
request such [Person] to furnish evidence to the reasonable
satisfaction of the [Trustee] as to the amount of Senior Debt held
by such [Person], the extent to which such [Person] is entitled to
participate in such payment or distribution and any other facts
pertinent to the rights of such [Person] under this Article and, if
such evidence is not furnished to the [Trustee], the [Trustee] may
defer any payment to such [Person] pending judicial determination
as to the right of such [Person] to receive such payment.
SECTION __.07. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE
OF LIQUIDATING AGENT. Upon any payment or distribution of assets
or securities referred to in this Article Ten, the [Trustee] and
the [securityholders] shall be entitled to rely upon any order or
decree made by any court of competent jurisdiction in which
bankruptcy, dissolution, winding up, liquidation or reorganization
proceedings are pending, or upon a certificate of the receiver,
trustee in bankruptcy, liquidating trustee, agent or other similar
[Person] making such payment or distribution, delivered to the
[Trustee] or to the [securityholders] for the purpose of
ascertaining the persons entitled to participate in such
distribution, the holders of the Senior Debt and other Debt of the
Company, the amount thereof or payable thereon, the amount or
amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article.
SECTION __.08. TRUSTEE'S RELATION TO SENIOR DEBT. (a)
The [Trustee] and any [Paying Agent] shall be entitled to all the
rights set forth in this Article with respect to any Senior Debt
that may at any time be held by it in its individual or any other
capacity to the same extent as any other holder of Senior Debt and
nothing in this Indenture shall deprive the [Trustee] or any
[Paying Agent] of any of its rights as such holder.
(b) With respect to the holders of Senior Debt, the
[Trustee] undertakes to perform or to observe only such of its
covenants and obligations as are specifically set forth in this
Article, and no implied covenants or obligations with respect to
the holders of Senior Debt shall be read into this Indenture
against the [Trustee]. The [Trustee] shall not be deemed to owe
any fiduciary duty to the holders of Senior Debt (except as
provided in Sections __.02(c) and __.03(c) of this [Indenture]) and
shall not be liable to any such holders if the [Trustee] shall in
good faith mistakenly pay over or distribute to [securityholders]
of [securities] or to the Company or to any other person cash,
property or securities to which any holders of Senior Debt shall be
entitled by virtue of this Article or otherwise.
SECTION __.09. SUBORDINATION RIGHTS NOT IMPAIRED BY ACTS
OR OMISSIONS OF THE ISSUER OR HOLDERS OF SENIOR DEBT. No right of
any present or future holders of any Senior Debt to enforce
subordination as provided in this Article will at any time in any
way be prejudiced or impaired by any act or failure to act on the
part of the Company or by any act or failure to act, in good faith,
by any such holder, or by any noncompliance by the Company with the
terms of this Indenture, regardless of any knowledge thereof that
any such holder may have or otherwise be charged with. The
provisions of this Article Ten are intended to be for the benefit
of, and shall be enforceable directly by, the holders of Senior
Debt.
SECTION __.10. HOLDERS AUTHORIZE TRUSTEE TO EFFECTUATE
SUBORDINATION OF SECURITIES. Each [securityholder] by his
acceptance of any [securities] authorizes and expressly directs the
[Trustee] on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this
Article, and appoints the [Trustee] his attorney-in-fact for such
purposes, including, in the event of any dissolution, winding up,
liquidation or reorganization of the Company (whether in
bankruptcy, insolvency, receivership, reorganization or similar
proceedings or upon an assignment for the benefit of creditors or
otherwise) tending towards liquidation of the property and assets
of the Company, the filing of a claim for the unpaid balance of its
[securities] in the form required in those proceedings. If the
[Trustee] does not file a proper claim or proof of indebtedness in
the form required in such proceeding at least 10 days before the
expiration of the time to file such claim or claims, each holder of
Senior Debt is hereby authorized to file an appropriate claim for
and on behalf of the [securityholders].
SECTION __.11. NOT TO PREVENT EVENTS OF DEFAULT. The
failure to make a payment on account of principal of, interest on
or Other Subordinated Obligations with respect to the [securities]
by reason of any provision of this Article will not be construed as
preventing the occurrence of an [Event of Default].
SECTION __.12. TRUSTEE'S COMPENSATION NOT PREJUDICED.
Nothing in this Article will apply to amounts due to the [Trustee]
pursuant to other sections of this [Indenture].
SECTION __.13. NO WAIVER OF SUBORDINATION PROVISIONS.
Without in any way limiting the generality of Section __.09 of this
[Indenture], the holders of Senior Debt may, at any time and from
time to time, without the consent of or notice to the [Trustee] or
the [securityholders], without incurring responsibility to the
[securityholders] and without impairing or releasing the
subordination provided in this Article or the obligations hereunder
of the [securityholders] to the holders of Senior Debt, do any one
or more of the following: (a) change the manner, place or terms of
payment or change the time of payment of, or renew or alter, Senior
Debt or any instrument evidencing the same or any agreement under
which Senior Debt is outstanding or secured; (b) sell, exchange,
release or otherwise deal with any property pledged, mortgaged or
otherwise securing Senior Debt; (c) release any [Person] liable in
any manner for the collection of Senior Debt; and (d) exercise or
refrain from exercising any rights against the Company and any
other [Person].
SECTION __.14. PAYMENTS MAY BE PAID PRIOR TO
DISSOLUTION. Nothing contained in this Article or elsewhere in
this [Indenture] shall prevent (i) the Company, except under the
conditions described in Section __.02 or __.03 of this [Indenture],
from making payments of principal of, interest on, or Other
Subordinated Obligations with respect to the [securities], or from
depositing with the [Trustee] any money for such payments, or (ii)
the application by the [Trustee] of any money deposited with it for
the purpose of making such payments of principal of, interest on,
or Other Subordinated Obligations with respect to the [securities]
to the holders entitled thereto unless, at least two Business Days
prior to the date upon which such payment becomes due and payable,
the [Trustee] shall have received the written notice provided for
in Section __.02(b) of this [Indenture] (or there shall have been
an acceleration of the [securities] prior to such application) or
in Section __.06 of this [Indenture]. The Company shall give
prompt written notice to the [Trustee] of any dissolution, winding
up, liquidation or reorganization of the Company.
SECTION __.15. CONSENT OF HOLDERS OF SENIOR DEBT UNDER
THE NEW CREDIT AGREEMENT AND FIRST MORTGAGE BONDS. The provisions
of this Article (including the definitions contained in this
Article and references to this Article contained in this
[Indenture]) shall not be amended in a manner that would adversely
affect the rights of the holders of Senior Debt under the New
Credit Agreement, the First Mortgage Bonds, the Investment
Agreement or any other Senior Debt, and no such amendment shall
become effective unless the holders of such Senior Debt shall have
consented (in accordance with the provisions of the New Credit
Agreement, the First Mortgage Bonds Indenture, the Investment
Agreement or other relevant instrument, as the case may be) to such
amendment.
SECTION __.16. DEFINITIONS. The following terms, as
used in this Article, shall have the following meanings:
DEBT: The term "Debt" of any [Person] means, without
duplication,
(1) all obligations of such [Person] in respect of
(A) indebtedness for money borrowed and (B) indebtedness
evidenced by the [securities], or the First Mortgage
Bonds, the Securities, notes, debentures, bonds or other
similar instruments for the payment of which such
[Person] is responsible or liable including, without
limitation (x) all Obligations (as defined in the First
Mortgage Indenture, dated as of March 9, 1993) in respect
of money owed under the First Mortgage Bonds Indenture,
(y) interest accruing subsequent to an event of
bankruptcy or reorganization relating to the Company,
whether or not such interest is an allowed claim
enforceable against the debtor under the United States
Bankruptcy Code, and (z) the fees and expenses of the
Institutional Investor payable under the Investment
Agreement;
(ii) all Capital Lease Obligations of such [Person];
(iii) all obligations of such [Person] issued or
assumed as the deferred purchase price of property, all
conditional sale obligations of such [Person] and all
obligations of such [Person] under any title retention
agreement (but excluding trade accounts payable arising
in the ordinary course of business);
(iv) all obligations of such [Person] for the
reimbursement of any obligor on any letter of credit,
banker's acceptance or similar credit transaction (other
than obligations with respect to letters of credit
securing obligations (other than obligations described in
clauses (i) through (iii) above) entered into in the
ordinary course of business of such [Person] to the
extent such letters of credit are not drawn upon or, if
and to the extent drawn upon, such drawing is reimbursed
no later than the third business day following receipt by
such [Person] of a demand for reimbursement following
payment on the letter of credit);
(v) the amount of all obligations of such [Person]
with respect to the redemption, repayment or other
repurchase of any Redeemable Stock or Exchangeable Stock;
(vi) all obligations of the type referred to in
clauses (i) through (v) above of other [Persons] and all
dividends of other [Persons] for the payment of which, in
either case, such [Person] is responsible or liable as
obligor, guarantor or otherwise; provided, however, that
to the extent such [Person] is responsible or liable only
for the obligation of another [Person] to pay interest on
Debt, then a designated percentage of such interest or
the amount of the underlying Debt, as the case may be,
shall be deemed Debt of the referent [Person] and the
amount of such deemed Debt of the referent [Person] shall
be equal to the lesser of (A) the aggregate principal
amount of the underlying Debt and (B) the aggregate
amount of interest due or payable over the term of such
Debt (or the term of the [securities], if shorter)
determined based upon the rate of interest in effect as
the date of such determination, together with the maximum
prepayment premium or penalty which could become due or
payable with respect to such Debt if such Debt was
prepaid prior to the maturity of the [securities];
(vii) all obligations of the type referred to in
clauses (i) through (vi) above of other [Persons] secured
by any Lien on any property or asset of such [Person]
(whether or not such obligation is assumed by such
[Person]), the amount of such obligations being deemed to
be the lesser of the value of such property or assets and
the amount of the obligation so secured; and
(viii) all obligations of such [Person] consisting
of modifications, renewals, extensions, replacements and
refundings of any obligations described in any of clauses
(i) through (vii) above.
SENIOR DEBT: The term "Senior Debt" means Debt unless,
in the instrument creating or evidencing the same or pursuant to
which the same is outstanding, it is provided that such obligations
are PARI PASSU or junior or subordinate in right of payment to the
Securities; PROVIDED, HOWEVER, that Senior Debt shall not be deemed
to include (1) any obligation of the Company to any Subsidiary, (2)
any liability for federal, state, local or other taxes owed or
owing by the Company other than reimbursement obligations of the
Company in respect of such taxes that are paid on behalf of the
Company pursuant to the provisions in the Mortgages (as defined in
the First Mortgage Bonds Indenture) that permit the mortgagee to
make such payment, (3) any accounts payable or other liability to
trade creditors arising in the ordinary course of business
(including guarantees thereof or instruments evidencing such
liabilities), (4) any indebtedness, guarantee or obligation of the
Company which is subordinate or junior in any respect to any other
indebtedness, guarantee or obligation of the Company (including,
without limitation, the [securities]), (5) the portion of any Debt
issued in violation of section [4.05 or 4.06] of the 1995 Indenture
or (6) any obligations of the Company or any Subsidiary with
respect to the redemption, repayment or other repurchase of any
Redeemable Stock or Exchangeable Stock.
<PAGE>
<PAGE>
SCHEDULE V
Home Office Payments to Investor
- --------------------------------
Metropolitan Life Insurance Company
One Madison Avenue
New York, New York 10010
Attention: Treasurer
All payments on account of the Bonds shall be made by
wire transfer of immediately available funds not later than
1:00 p.m., New York City time, to the investor's Account No.
002-2-410591 (Account Name: Metropolitan Life - Corporate
Investments) at The Chase Manhattan Bank, N.A., 33 East 23rd
Street, New York, NY 10010, with sufficient information to
identify the source and application of the funds and with
specific reference to Reference No. CSP-O3099O9A.
c:\dms\004787\00028\0086493.Wp
07/14/95 (7:28am)
<PAGE>
_________________________________________________________________
AMERICOLD CORPORATION
and
UNITED STATES NATIONAL BANK OF OREGON
$27,500,000
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
_________________________________________________________________
June 19, 1995
<PAGE>
TABLE OF CONTENTS
Page
----
ARTICLE 1 - RECITALS, EXHIBITS, AND DEFINITIONS. . . . . . . . . . . . . . 2
1.1 RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.2 EXHIBITS . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.3 DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE 2 - AMOUNT AND TERMS OF CREDIT . . . . . . . . . . . . . . . . . . 12
2.1 LOANS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
2.2 MINIMUM AMOUNT OF EACH LOAN. . . . . . . . . . . . . . . . . . 12
2.3 NOTICE OF LOAN . . . . . . . . . . . . . . . . . . . . . . . . 12
2.4 DISBURSEMENT OF FUNDS. . . . . . . . . . . . . . . . . . . . . 12
2.5 NOTE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
2.6 CONVERSIONS. . . . . . . . . . . . . . . . . . . . . . . . . . .13
2.7 [SECTION OMITTED]. . . . . . . . . . . . . . . . . . . . . . . 14
2.8 INTEREST RATES, PAYMENT DATES. . . . . . . . . . . . . . . . . 14
2.9 INTEREST PERIODS . . . . . . . . . . . . . . . . . . . . . . . 15
2.10 INCREASED COSTS, ILLEGALITY, ETC.. . . . . . . . . . . . . . . 16
2.11 COMPENSATION . . . . . . . . . . . . . . . . . . . . . . . . . 17
2.12 VOLUNTARY REDUCTION OF COMMITMENTS . . . . . . . . . . . . . . 18
ARTICLE 3 - LETTERS OF CREDIT. . . . . . . . . . . . . . . . . . . . . . . 18
3.1 LETTERS OF CREDIT. . . . . . . . . . . . . . . . . . . . . . . 18
3.2 MINIMUM STATED AMOUNT. . . . . . . . . . . . . . . . . . . . . 19
3.3 LETTER OF CREDIT REQUESTS. . . . . . . . . . . . . . . . . . . 19
3.4 AGREEMENT TO REPAY LETTER OF CREDIT DRAWINGS . . . . . . . . . 19
3.5 INCREASED COSTS. . . . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE 4 - FEES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
4.1 FEES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE 5 - PAYMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
5.1 VOLUNTARY PREPAYMENTS. . . . . . . . . . . . . . . . . . . . . 21
5.2 METHOD AND PLACE OF PAYMENT. . . . . . . . . . . . . . . . . . 21
5.3 NET PAYMENTS . . . . . . . . . . . . . . . . . . . . . . . . . 21
ARTICLE 6 - CONDITIONS OF LENDING. . . . . . . . . . . . . . . . . . . . . 21
6.1 CONDITIONS PRECEDENT TO EFFECTIVENESS. . . . . . . . . . . . . 21
(a) EFFECTIVENESS OF PLAN OF REORGANIZATION. . . . . . . . . 22
(b) EXECUTION OF CREDIT DOCUMENTS. . . . . . . . . . . . . . 22
(c) NO DEFAULT; REPRESENTATIONS AND WARRANTIES1. . . . . . . 22
(d) OFFICER'S CERTIFICATE. . . . . . . . . . . . . . . . . . 22
(e) OPINIONS OF COUNSEL. . . . . . . . . . . . . . . . . . . 22
(f) CORPORATE PROCEEDINGS. . . . . . . . . . . . . . . . . . 22
(g) SECURITY DOCUMENTS; FILINGS. . . . . . . . . . . . . . . 22
(h) RECORD SEARCHES. . . . . . . . . . . . . . . . . . . . . 22
(i) ADVERSE CHANGE . . . . . . . . . . . . . . . . . . . . . 23
(j) DELIVERY OF DOCUMENTS. . . . . . . . . . . . . . . . . . 23
6.2 CONDITIONS PRECEDENT TO EACH LOAN AND LETTER OF
CREDIT . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
ARTICLE 7 - REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . 24
7.1 CORPORATE STATUS . . . . . . . . . . . . . . . . . . . . . . . 24
7.2 CORPORATE POWER AND AUTHORITY. . . . . . . . . . . . . . . . . 24
7.3 NO VIOLATION . . . . . . . . . . . . . . . . . . . . . . . . . 24
7.4 LITIGATION . . . . . . . . . . . . . . . . . . . . . . . . . . 25
7.5 FINANCIAL STATEMENTS; FINANCIAL CONDITION; ETC.. . . . . . . . 25
7.6 USE OF PROCEEDS; MARGIN REGULATIONS. . . . . . . . . . . . . . 25
7.7 GOVERNMENTAL APPROVALS . . . . . . . . . . . . . . . . . . . . 26
7.8 SECURITY INTERESTS . . . . . . . . . . . . . . . . . . . . . . 26
7.9 TAX RETURNS AND PAYMENTS . . . . . . . . . . . . . . . . . . . 26
7.10 COMPLIANCE WITH ERISA. . . . . . . . . . . . . . . . . . . . . 26
7.11 INVESTMENT COMPANY ACT . . . . . . . . . . . . . . . . . . . . 27
7.12 TRUE AND COMPLETE DISCLOSURE . . . . . . . . . . . . . . . . . 27
7.13 SUBSIDIARY . . . . . . . . . . . . . . . . . . . . . . . . . . 27
7.14 PATENTS, LICENSES, FRANCHISES AND FORMULAS . . . . . . . . . . 27
7.15 LABOR RELATIONS. . . . . . . . . . . . . . . . . . . . . . . . 28
ARTICLE 8 - AFFIRMATIVE COVENANTS. . . . . . . . . . . . . . . . . . . . . 28
8.1 INFORMATION COVENANTS. . . . . . . . . . . . . . . . . . . . . 28
(a) QUARTERLY REPORTS. . . . . . . . . . . . . . . . . . . . 28
(b) ANNUAL REPORTS . . . . . . . . . . . . . . . . . . . . . 29
(c) MANAGEMENT LETTERS . . . . . . . . . . . . . . . . . . . 29
(d) BUDGETS AND INTERIM FINANCIAL INFORMATION. . . . . . . . 29
(e) OFFICER'S CERTIFICATES . . . . . . . . . . . . . . . . . 29
(f) NOTICE OF DEFAULT OR LITIGATION. . . . . . . . . . . . . 30
(g) OTHER REPORTS AND FILINGS. . . . . . . . . . . . . . . . 30
(h) MONTHLY REPORTS. . . . . . . . . . . . . . . . . . . . . 30
(i) BORROWING CERTIFICATE. . . . . . . . . . . . . . . . . . 30
(j) OTHER INFORMATION. . . . . . . . . . . . . . . . . . . . 30
8.2 BOOKS, RECORDS, AND INSPECTIONS; COLLATERAL
AUDITS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
8.3 MAINTENANCE OF PROPERTY, INSURANCE . . . . . . . . . . . . . . 31
8.4 TAXES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
8.5 CORPORATE FRANCHISES . . . . . . . . . . . . . . . . . . . . . 31
8.6 COMPLIANCE WITH STATUTES, ETC. . . . . . . . . . . . . . . . . 31
8.7 ERISA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
8.8 PERFORMANCE OF OBLIGATIONS . . . . . . . . . . . . . . . . . . 32
8.9 FURTHER ASSURANCES . . . . . . . . . . . . . . . . . . . . . . 32
8.10 FINANCIAL COVENANTS FOR ASC. . . . . . . . . . . . . . . . . . 33
8.11 FACILITY RESTING REQUIREMENTS. . . . . . . . . . . . . . . . . 33
8.12 MORTGAGE . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
ARTICLE 9 - NEGATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . . 33
9.1 [SECTION OMITTED.] . . . . . . . . . . . . . . . . . . . . . . 34
9.2 CONSOLIDATION, MERGER, SALE OF ASSETS, ETC.. . . . . . . . . . 34
9.3 LIMITATION ON DIVIDENDS AND VOLUNTARY PAYMENTS . . . . . . . . 34
9.4 [SECTION OMITTED.] . . . . . . . . . . . . . . . . . . . . . . 34
9.5 [SECTION OMITTED.] . . . . . . . . . . . . . . . . . . . . . . 34
9.6 [SECTION OMITTED.] . . . . . . . . . . . . . . . . . . . . . . 34
9.7 TRANSACTIONS WITH AFFILIATES . . . . . . . . . . . . . . . . . 34
9.8 [SECTION OMITTED.] . . . . . . . . . . . . . . . . . . . . . . 35
9.9 AVAILABLE CASH FLOW TO PRO FORMA DEBT SERVICE
RATIO. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
9.10 [SECTION OMITTED.] . . . . . . . . . . . . . . . . . . . . . . 35
9.11 SENIOR DEBT TO NET WORTH RATIO . . . . . . . . . . . . . . . . 35
9.12 [SECTION OMITTED.] . . . . . . . . . . . . . . . . . . . . . . 35
9.13 MODIFICATIONS OF INDEBTEDNESS AND CERTAIN OTHER
AGREEMENTS, ETC. . . . . . . . . . . . . . . . . . . . . . . . 35
9.14 CONDUCT OF BUSINESS. . . . . . . . . . . . . . . . . . . . . . 36
ARTICLE 10 - EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . . . . . 36
10.1 PAYMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
10.2 REPRESENTATIONS, ETC.. . . . . . . . . . . . . . . . . . . . . 36
10.3 COVENANTS. . . . . . . . . . . . . . . . . . . . . . . . . . . 36
10.4 DEFAULT UNDER OTHER AGREEMENTS . . . . . . . . . . . . . . . . 36
10.5 BANKRUPTCY, ETC. . . . . . . . . . . . . . . . . . . . . . . . 37
10.6 ERISA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
10.7 MORTGAGE AND SECURITY AGREEMENT. . . . . . . . . . . . . . . . 38
10.8 JUDGMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . .38
10.9 CHANGE OF CONTROL. . . . . . . . . . . . . . . . . . . . . . . .38
ARTICLE 11 - [SECTION OMITTED] . . . . . . . . . . . . . . . . . . . . . . 39
ARTICLE 12 - MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . 39
12.1 PAYMENT OF EXPENSES, ETC. . . . . . . . . . . . . . . . . . . 39
12.2 RIGHT OF SETOFF . . . . . . . . . . . . . . . . . . . . . . . 39
12.3 NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
12.4 BENEFIT OF AGREEMENT. . . . . . . . . . . . . . . . . . . . . 40
12.5 NO WAIVER; REMEDIES CUMULATIVE. . . . . . . . . . . . . . . . 40
12.6 [SECTION OMITTED.]. . . . . . . . . . . . . . . . . . . . . . 41
12.7 CALCULATIONS; COMPUTATIONS. . . . . . . . . . . . . . . . . . 41
12.8 GOVERNING LAW; SUBMISSION TO JURISDICTION;
ARBITRATION . . . . . . . . . . . . . . . . . . . . . . . . . 41
12.9 COUNTERPARTS. . . . . . . . . . . . . . . . . . . . . . . . . 42
12.10 HEADINGS DESCRIPTIVE. . . . . . . . . . . . . . . . . . . . . 42
12.11 AMENDMENT OR WAIVER . . . . . . . . . . . . . . . . . . . . . 42
12.12 SURVIVAL. . . . . . . . . . . . . . . . . . . . . . . . . . . 42
12.13 AMENDMENT AND RESTATEMENT . . . . . . . . . . . . . . . . . . 42
12.14 DISCLOSURE. . . . . . . . . . . . . . . . . . . . . . . . . . 43
<PAGE>
EXHIBITS
Exhibit A - Replacement Promissory Note
Exhibit B - Not Used
Exhibit C - Borrowing Certificate
Exhibit D - Permitted Filings and Liens
Exhibit E - Indenture Provisions
<PAGE>
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF: June 19, 1995
BETWEEN: AMERICOLD CORPORATION, an Oregon corporation
("Americold") whose address is 7007 SW Cardinal
Lane, Suite 135, Portland, Oregon 97224
AND: UNITED STATES NATIONAL BANK OF OREGON, a national
banking association ("U.S. Bank"), whose address
is National Corporate Banking (PL-4), P.O.
Box 4412, Portland, Oregon 97208
R E C I T A L S
A. Americold is engaged directly in the business of
operating refrigerated storage facilities, together with trans-
portation and distribution services, and a rock quarry.
Americold has one active, wholly owned subsidiary, Americold
Services Corporation, that is engaged in the business of
operating refrigerated storage facilities.
B. Americold and U.S. Bank, as agent for itself and
other banks, entered into a credit agreement dated as of
April 30, 1987 (the "Prior Credit Agreement"), pursuant to which
the banks agreed to provide an $85,000,000 credit facility to
Americold upon the terms and conditions contained therein. In
connection with the Prior Credit Agreement, U.S. Bank and
Americold executed a security agreement dated as of July 2, 1987,
and filed certain financing statements. For the purpose of
amending and restating the Prior Credit Agreement, U.S. Bank and
Americold executed a Credit Agreement dated February 3, 1993,
which in turn was amended by a First Amendment to Credit
Agreement dated October 1, 1993 (the "First Amended and Restated
Credit Agreement").
C. Americold and U.S. Bank desire to amend and
restate the First Amended and Restated Credit Agreement in order
to reflect the changes made in the First Amendment to Credit
Agreement dated October 1, 1993, extend the maturity of the
credit facility, adjust certain covenants, make provision for
certain mortgages, and accomplish certain other changes. The
parties intend that the previously granted security interests
will continue to secure Americold's obligations set forth in this
Agreement.
D. Americold is offering $115 million in principal
amount of new 15% Senior Subordinated Debentures due 2007. Such
new debentures are being offered through a pre-packaged plan of
reorganization in exchange for Americold's outstanding 11% Senior
Subordinated Debentures due 1997.
NOW, THEREFORE, for valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, it is
agreed:
ARTICLE 1
RECITALS, EXHIBITS, AND DEFINITIONS
1.1 RECITALS. The foregoing recitals are incorporated
into this Agreement by this reference.
1.2 EXHIBITS. The exhibits referred to in, and attached
to, this Agreement are incorporated herein by this reference and
are identified below:
Exhibit A Replacement Promissory Note
Exhibit B Not Used
Exhibit C Borrowing Certificate
Exhibit D Permitted Filings and Liens
Exhibit E Indenture Provisions
1.3 DEFINITIONS. As used herein, the following terms will
have the following meanings:
"ADA" will mean the Americans with Disabilities Act of
1990.
"ADJUSTED CONSOLIDATED INTEREST EXPENSE" means, for
any period, the total interest expense of Americold and its
Subsidiaries, including (i) interest expense attributable to
capital leases, (ii) amortization of debt discount and debt
issuance cost, (iii) capitalized interest, (iv) non-cash interest
payments, (v) commissions, discounts and other fees and charges
owed with respect to letters of credit and bankers' acceptance
financing, (vi) net costs under Interest Rate Protection
Agreements (including amortization of fees), (vii) preferred
stock dividends (other than dividends payable solely in kind) in
respect of all preferred stock held by persons other than
Americold or a Subsidiary, (viii) interest incurred in connection
with investments in discontinued operations and (ix) interest
actually paid by Americold or any of its Subsidiaries under any
guarantee of Indebtedness or any other obligation of any other
person.
"ADJUSTED CONSOLIDATED NET INCOME" means, for any
period, the net income (or net loss) of Americold and its
Subsidiaries determined on a consolidated basis in accordance
with generally accepted accounting principles; provided, however,
that there shall not be included in such Adjusted Consolidated
Net Income:
(i) any net income of any person if such
person is not a Subsidiary, except that (A) Americold's
or any Subsidiary's equity in the net income of any
such person for such period shall be included in such
Adjusted Consolidated Net Income up to the aggregate
amount of cash actually distributed by such person
during such period to Americold or a Subsidiary as a
dividend or other distribution (subject, in the case of
a dividend or other distribution to a Subsidiary, to
the limitations contained in clause (iii) below) and
(B) Americold's or any Subsidiary's equity in a net
loss of any such person for such period shall be
included in determining such Adjusted Consolidated Net
Income;
(ii) any net income of any person acquired
by Americold or a Subsidiary in a pooling of interests
transaction for any period prior to the date of such
acquisition;
(iii) any net income of any Subsidiary if
such Subsidiary is subject to restrictions, directly or
indirectly, on the payment of dividends or the making
of distributions by such Subsidiary, directly or
indirectly, to Americold, except that (A) Americold's
equity in the net income of any such Subsidiary for
such period shall be included in such Adjusted
Consolidated Net Income up to the aggregate amount of
cash actually distributed by such Subsidiary during
such period to Americold or another Subsidiary as a
dividend or other distribution (subject, in the case of
a dividend or other distribution to another Subsidiary,
to the limitation contained in this clause) and (B)
Americold's equity in a net loss of any such Subsidiary
for such period shall be included in determining such
Adjusted Consolidated Net Income;
(iv) any gain or loss realized upon the sale
or other disposition of any property, plant or
equipment of Americold or its Subsidiaries (including
pursuant to any sale-and-leaseback arrangement),
provided, however, that the exclusion from Adjusted
Consolidated Net Income of gains described in this
clause (iv) shall not apply to deferred gains resulting
from sale-and-leaseback arrangements to the extent that
there is an offsetting increase in depreciation expense
resulting from the recapitalization of the related
property, plant or equipment which is not sold or
otherwise disposed of in the ordinary course of
business and any gain or loss realized upon the sale or
other disposition of any Capital Stock of any person;
(v) the cumulative effect of a change in
accounting principles, including the cumulative effect
of the implementation of SFAS 106 by Americold with
respect to services rendered by employees in periods
prior to its implementation, but excluding any effects
of such implementation with respect to services
rendered in periods following such implementation, and
excluding any one-time or cumulative charges associated
with the implementation of SFAS 109;
(vi) the cash effect of the rejection of any
leases and executory contracts pursuant to the Plan of
Reorganization; and
(vii) the cash effect of Americold's
incurring costs (including but not limited to
professional fees) in connection with the Plan of
Reorganization in excess of $5,750,000.
"ADJUSTED EBITDA" means, for any period, Adjusted
Consolidated Net Income plus (to the extent deducted in
calculating Adjusted Consolidated Net Income) Adjusted
Consolidated Interest Expense, income taxes, depreciation
expenses, amortization expense, non-cash write-offs of deferred
financing costs and non-cash deductions for contributions to the
ESOP (but without giving effect to any extraordinary gain or
loss) for such period.
"AFFILIATE" will mean, with respect to any Person,
(i) any other Person which, directly or indirectly, is in control
of, is controlled by or is under common control with such speci-
fied Person or (ii) any other Person who is a director, executive
officer, or general partner (a) of such specified Person, (b) of
any Subsidiary of such specified Person, or (c) of any Person
described in clause (i) above. For purposes of this definition,
control of a Person means the power, direct or indirect, to
direct or cause the direction of the management and policies of
such Person, whether by contract or otherwise; and the terms
"control" and "controlled" have meanings correlative to the
foregoing; PROVIDED, HOWEVER, that a Person shall not be deemed
to be an Affiliate of another Person solely as a result of a
warehouse management contract entered into between such Persons
in the ordinary course of business.
"AGREEMENT" will mean this Second Amended and Restated
Credit Agreement as the same may hereafter be modified,
supplemented, amended, or restated.
"AMERICOLD" will have the meaning set forth in the
recitals.
"ASC" will mean Americold Services Corporation, a
Delaware corporation and a wholly owned subsidiary of Americold.
"AVAILABLE CASH FLOW" for the most recent four-quarter
period ended prior to the date on which a determination is being
made, shall mean Adjusted EBITDA minus (i) cash income taxes paid
or payable during such period and (ii) the amount of capital
expenditures (other than any non-cash capital expenditures and
expenditures for the acquisition of assets or property using net
proceeds of the First Mortgage Bonds, Series B, Due 2005) of
Americold and its Subsidiaries during such period.
"BANKRUPTCY CODE" will have the meaning provided in
Section 10.5.
"BORROWING BASE" will mean (a) 85 percent of Eligible
Accounts plus (b) 70 percent of the value of each Mortgaged
Property as determined by U. S. Bank in its reasonable
discretion, based upon a current MAI appraisal of the Mortgaged
Property prepared by an MAI appraiser selected by U. S. Bank and
prepared in accordance with applicable rules and regulations
under the Financial Institutions Reform, Recovery, and
Enforcement Act of 1989.
"BORROWING CERTIFICATE" will mean a certificate in the
form attached as Exhibit C with all informational spaces thereon
completed and bearing the original manual signature of
Americold's Chief Financial Officer, Treasurer, or other officer
or employee authorized by Americold's President, Chief Executive
Officer, or Vice President, to sign such certificate.
"BUSINESS DAY" will mean (a) for all purposes other
than as covered by clause (b) below, any day excluding Saturday,
Sunday, and any day that will be a legal holiday in the City of
Portland, Oregon, or a day on which banking institutions are
authorized by law or other government actions to close and
(b) with respect to all notices and determinations in connection
with, and payments of principal and interest on, Eurodollar
Loans, any day that is a Business Day described in clause (a) and
that is also a day for trading by and between banks in the New
York interbank eurodollar market.
"CLOSING DATE" will mean the date on which the initial
Loan(s) were made under the Credit Agreement.
"CODE" will mean the Internal Revenue Code of 1986, as
amended, or any successor thereto.
"COLLATERAL" will mean the assets of Americold and its
Subsidiaries subject to the Liens created by the Security
Agreement and the Mortgage.
"COMMITMENT" will mean $27,500,000, as reduced
pursuant to Section 2.12.
"CONSOLIDATED INDEBTEDNESS" will mean the Indebtedness
of Americold and its Subsidiaries, consolidated in accordance
with generally accepted accounting principles.
"CREDIT DOCUMENTS" will mean this Agreement, the Note,
the Mortgage, and the Security Agreement, as each may be
modified, supplemented, amended, or restated from time to time.
"DEFAULT" will mean any event, act, or condition that
with notice or lapse of time, or both, would constitute an Event
of Default.
"DRAWING" will have the meaning provided in
Section 3.4(a).
"EBITDA" for any period will mean the consolidated net
income of Americold and its Subsidiaries, before interest
expense, income taxes, depreciation, amortization, operating
lease and rental expense, and noncash ESOP contributions, and
without giving effect to gains from sales of assets (other than
sales of inventory in the ordinary course of business), for such
period (taken as one accounting period).
"EFFECTIVE DATE" means the date when the conditions
set forth in Section 6.1 have been satisfied.
"ELIGIBLE ACCOUNTS" will mean each and every account
(as defined in the Oregon Uniform Commercial Code) of Americold
and its Subsidiaries except those (a) under which payment is not
received within 90 days after date of invoice, (b) as to which
the account debtor has asserted or has cause to assert a right of
return, offset, deduction, credit, defense, or counterclaim of
any nature whatsoever, (c) which are owed by an account debtor
who is an Affiliate or employee of Americold or who does not meet
reasonable credit standards approved by U.S. Bank, (d) which are
not enforceable by judicial proceedings within the United States
unless supported by a letter of credit in form reasonably
acceptable to U.S. Bank issued by a financial institution
acceptable to U.S. Bank, or is otherwise acceptable, by guaranty
or otherwise, to U.S. Bank, or (e) which are service charges,
cash sales, COD billings, billings for retainage, or so-called
"progress billings." Accounts will not be deemed Eligible
Accounts if more than 25 percent of an account debtor's account
is unpaid for more than 90 days past the invoice date or if U.S.
Bank in its reasonable judgment determines that such account
debtor's account is not an Eligible Account. At the discretion
of U.S. Bank (but with notice to Americold of U.S. Bank's
determination), accounts for any single debtor other than H.J.
Heinz Company and any of its subsidiaries may be excluded to the
extent they exceed either $1,000,000 or 10 percent of total
Eligible Accounts.
"ERISA" will mean the Employee Retirement Income
Security Act of 1974, as amended from time to time. Section
references to ERISA are to ERISA, as in effect at the date of
this Agreement and any subsequent provisions of ERISA, amendatory
thereof, supplemental thereto, or substituted therefor.
"ERISA AFFILIATE" will mean any person (as defined in
Section 3(9) of ERISA) (including each trade or business (whether
or not incorporated)) which together with Americold or any
Subsidiary would be deemed to be a "single employer" or a member
of the same "controlled group" of "contributing sponsors" within
the meaning of Section 4001 of ERISA.
"ESOP" will mean an unleveraged employee stock owner-
ship plan established by Americold designed to invest primarily
in Americold's capital stock.
"EURODOLLAR LOAN" will mean any Loan bearing interest
at the rates provided in Section 2.8(b).
"EURODOLLAR RATE" will mean (a) the offered quotation
by first-class banks in the interbank eurodollar market to U.S.
Bank for U.S. dollar deposits of amounts in immediately available
funds comparable to the outstanding principal amount of the
Eurodollar Loan with maturities comparable to the Interest Period
applicable to such Eurodollar Loan as of 10 a.m. (London time) on
the date which is two Business Days prior to the commencement of
such Interest Period, divided (and rounded off to the nearest
1/100 of 1 percent) by (b) a percentage equal to 100 percent
minus the then stated maximum rate of all reserve requirements
(including without limitation any marginal, emergency, supple-
mental, special or other reserves required by applicable law)
applicable to U.S. Bank in respect of eurocurrency funding or
liabilities.
"EVENT OF DEFAULT" will have the meaning provided in
Article 10.
"FIRST MORTGAGE BONDS" will mean the mortgage bonds
issued under a certain Amended and Restated Indenture dated as of
March 9, 1993, between Americold and Shawmut Bank Connecticut,
National Association, as trustee, as amended, and shall include
both Series A and B Bonds provided that no amendment shall impair
the Collateral granted pursuant to the Security Agreement.
"FIXED CHARGES" for any period means, with respect to
Americold and its Subsidiaries, (a) the consolidated interest
expense (excluding consolidated interest expense attributable to
original issue discount amortization) of Americold and its
Subsidiaries for such period (calculated without regard to any
limitation on the payment thereof); (b) all obligations with
respect to operating leases of any property (whether real,
personal, or mixed) which is not a capital lease, net of any rent
received with respect to such operating leases; (c) rental
payments with respect to capital leases which reduce the
obligations with respect to capital leases properly classified as
liabilities on the consolidated balance sheet of Americold and
its Subsidiaries in conformity with generally accepted accounting
principles; (d) cash taxes payable on consolidated net income for
such period; and (e) the principal payments on all Indebtedness
of Americold and its Subsidiaries which by its terms or by the
terms of any instrument or agreement relating thereto matures
more than one year from, or is directly renewable or extendable
at the option of the debtor to a date more than one year
(including an option of the debtor under a revolving credit or
similar agreement obligating the lender or lenders to extend
credit over a period of one year or more) from the date of the
creation thereof, but (f) excluding Indebtedness incurred
hereunder.
"INDEBTEDNESS" of any Person will mean, without
duplication, (a) all indebtedness of such Person for borrowed
money or for the deferred purchase price of property or services;
(b) except to the extent supporting Indebtedness of such Person
(but no other indebtedness) of the type described in clause (a)
above, the face amount of all letters of credit issued for the
account of such Person and, without duplication, all drafts drawn
thereunder; (c) all liabilities secured by any Lien on any
property owned by such Person, whether or not such indebtedness
has been assumed; (d) the total amounts required to be
capitalized under leases; (e) all contingent obligations of such
Person; and (f) unfunded pension liability carried on the
financial statements as of the Closing Date.
"INTEREST PERIOD" will have the meaning provided in
Section 2.9.
"LETTER OF CREDIT" will mean each Letter of Credit
issued pursuant to Section 3.1(a).
"LETTER(S) OF CREDIT OUTSTANDING" will mean the sum of
(a) the aggregate Stated Amount of all outstanding Letters of
Credit plus (b) the aggregate principal amount of all Unpaid
Drawings.
"LIEN" will mean any mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or
other), or preference, priority, or other security agreement of
any kind or nature whatsoever (including, without limitation, any
conditional sale or other title retention agreement and any
financing lease having substantially the same effect as any of
the foregoing).
"LOAN" will have the meaning provided in Section 2.1.
"MARGIN STOCK" will have the meaning provided such
term in Regulation U of the Board of Governors of the Federal
Reserve System.
"MORTGAGE" will mean each of the mortgages or deeds of
trust on a Mortgaged Property in a form satisfactory to U.S. Bank
and Americold (which mortgages or deeds of trust will include ADA
and environmental indemnity provisions and will be accompanied by
standard bank forms of environmental and ADA questionnaires and
indemnity agreements), granted to U.S. Bank by Americold pursuant
to Section 8.12.
"MORTGAGED PROPERTY" will mean a property acceptable
to U.S. Bank which becomes subject to a Mortgage.
"NET CASH" of Americold and its Subsidiaries on a
consolidated basis, as of any date, shall mean the amount shown
on the consolidated balance sheet of Americold and its
Subsidiaries as cash as of such date (but not including cash held
in accounts or deposits that are subject to any restriction which
precludes the use of such cash for payment of Adjusted
Consolidated Interest Expense and principal due on Americold's
Indebtedness), computed in accordance with generally accepted
accounting principles, minus the amount of Obligations
outstanding on such date under this Agreement (or any Obligations
issued in any refinancing, refunding, replacement, extension or
restructuring thereof), other than any Obligations representing
undrawn amounts under Letters of Credit (or any Obligations
issued in any refinancing, refunding, replacement, extension or
restructuring thereof) not in excess of $10,000,000 in the
aggregate; provided, however, that Net Cash shall not be less
than zero.
"NET WORTH" of Americold will mean at any time the sum
of (a) stockholder's equity plus (b) Subordinated Debt.
"NOTE" will have the meaning provided in
Section 2.5(a)
"NOTICE OF LOAN" will have the meaning provided in
Section 2.3.
"NOTICE OF CONVERSION" will have the meaning provided
in Section 2.6.
"OBLIGATIONS" will mean all amounts owing to U.S. Bank
pursuant to the Credit Documents.
"OFFICE" will mean the office of U.S. Bank located at
555 S.W. Oak Street, Portland, Oregon 97204, or such other office
as U.S. Bank may hereafter designate in writing as such to the
other parties hereto.
"PBGC" will mean the Pension Benefit Guaranty Corpora-
tion established under ERISA, or any successor thereto.
"PERSON" will mean and include any individual,
partnership, joint venture, firm, corporation, association, trust
or other enterprise, or any government or political subdivision
or agency, department, or instrumentality thereof.
"PLAN" will mean any multiemployer plan or single-
employer plan, as defined in Section 4001 and subject to Title IV
of ERISA, which is maintained for employees of Americold or by a
Subsidiary or an ERISA Affiliate.
"PLAN OF REORGANIZATION" will mean the Plan of
Reorganization proposed by Americold in the Chapter 11 proceeding
initiated by Americold in the United States Bankruptcy Court for
the District of Oregon on May 9, 1995.
"PREDECESSOR PLAN" will mean any multiemployer plan or
single-employer plan as defined in Section 4001 and subject to
Title IV of ERISA, which was maintained for employees of any
members of the controlled group of employers with or of which
Americold or a Subsidiary is or was a member.
"PRIME RATE" will mean the rate which U.S. Bank
announces from time to time as its prime rate, as in effect from
time to time. The Prime Rate is a reference rate and does not
necessarily represent the lowest or best rate actually charged to
any customer. U.S. Bank may make commercial loans or other loans
at rates of interest at, above, or below the Prime Rate.
"PRIME RATE LOAN" will mean any Loan bearing interest
at the rates provided in Section 2.8(a).
"PRO FORMA DEBT SERVICE," for any period, shall mean
the sum of (i) Adjusted Consolidated Interest Expense (excluding
any non-cash items included in Adjusted Consolidated Interest
Expense to the extent no current liability exists with respect
thereto) that would be payable during such period by Americold
and its Subsidiaries assuming (x) that all Indebtedness
outstanding on the last day of the quarter prior to the period
for which the determination is being made was outstanding
throughout such period (other than scheduled payments of
principal to the extent included in clause (ii) hereof), and
(y) that, with respect to any floating rate or other
Indebtedness, the interest rate in effect on the date of such
determination was in effect throughout such period, but giving
effect to any scheduled increase or decrease in interest rate
that is ascertainable on the date of determination, and (ii) the
amount of principal payments payable during such period (and any
interest payable during such period on such principal amounts to
the extent not included in clause (i) hereof) on all Indebtedness
of Americold and its Subsidiaries, in each case consolidated in
accordance with generally accepted accounting principles.
"PROPERTY" will have the meaning set forth in
Section 8.12.
"QUARTERLY PAYMENT DATE" will mean the last day of
each May, August, November, and February.
"REGULATION D" will mean Regulation D of the Board of
Governors of the Federal Reserve System as from time to time in
effect and any successor to all or a portion thereof establishing
reserve requirement.
"REPORTABLE EVENT" will mean an event described in
Section 4043(b) of ERISA (with respect to which the 30-day notice
requirement has not been waived by the PBGC).
"SEC" shall have the meaning provided in
Section 8.1(g).
"SECURITY AGREEMENT" will mean the Security Agreement
between Americold and U.S. Bank dated July 2, 1987, as amended
February 3, 1993, to, inter alia, add ASC as a party as the same
has been or may hereafter be amended, modified, supplemented or
restated from time to time, and the Pledge Agreement between
Americold and U.S. Bank dated February 28, 1989, as the same may
be amended, modified, supplemented or restated from time to time.
"STATED AMOUNT" of each Letter of Credit will mean the
maximum amount available to be drawn thereunder.
"SUBORDINATED DEBT" AND "SUBORDINATED DEBENTURES" will
mean Americold's 15% Senior Subordinated Debentures due 2007.
"SUBSIDIARY" of any Person will mean and include
(a) any corporation more than 50 percent of whose stock of any
class or classes having by the terms thereof ordinary voting
power to elect a majority of the directors of such corporation
(irrespective of whether or not at the time stock of any class or
classes of such corporation will have or might have voting power
by reason of the happening of any contingency) is at the time
owned by such Person directly or indirectly through Subsidiaries
and (b) any partnership, association, joint venture or other
entity in which such Person, directly through Subsidiaries, has
more than a 50 percent equity interest at the time.
"TERMINATION DATE" will mean February 28, 1999.
"TYPE" will mean any type of Loan determined with
respect to the interest option applicable thereto, i.e., whether
a Prime Rate Loan or a Eurodollar Loan.
"UNPAID DRAWING" will have the meaning provided in
Section 3.4(a).
"U.S. BANK" will mean United States National Bank of
Oregon, a national banking association, its successors and
assigns.
ARTICLE 2
AMOUNT AND TERMS OF CREDIT
2.1 LOANS. Subject to and upon the terms and conditions
herein set forth, U.S. Bank agrees to make a loan or loans (each
a "Loan" and collectively the "Loans") to Americold from time to
time on or after the Closing Date and prior to the Termination
Date, which Loans (a) will, at the option of Americold, be either
Prime Rate Loans or Eurodollar Loans, or any combination thereof,
and (b) may be repaid and, subject to the terms and conditions
specified herein, may be reborrowed in accordance with the
provisions hereof. The sum of all outstanding Loans plus all
Letter(s) of Credit Outstanding shall not exceed at any time the
lesser of (i) the Commitment or (ii) the Borrowing Base. If at
any time the limitation in the foregoing sentence is exceeded,
Americold shall promptly pay the amount necessary to reduce the
sum of outstanding Loans and Letter(s) of Credit Outstanding to
the lesser of the Commitment or the Borrowing Base.
2.2 MINIMUM AMOUNT OF EACH LOAN. The aggregate principal
amount of each Loan will be not less than $1,000,000 in the case
of Eurodollar Loans and $25,000 in the case of Prime Rate Loans.
2.3 NOTICE OF LOAN. Whenever Americold desires to obtain
a Loan hereunder, it will give U.S. Bank written or telephonic
notice (confirmed in writing) prior to noon (Portland, Oregon,
time) on the desired day of each Prime Rate Loan and at least
three Business Days' prior written or telephonic notice
(confirmed in writing) of each Eurodollar Loan. Each such notice
(each a "Notice of Loan") will specify the aggregate principal
amount of the Loans to be made, the date of such Loans (which
will be a Business Day), and whether such Loans will consist of
Prime Rate Loans or Eurodollar Loans and, if Eurodollar Loans,
the initial Interest Period to be applicable thereto. U.S. Bank
will, upon determining the Eurodollar Rate, if applicable, for
any Interest Period, promptly notify Americold thereof.
2.4 DISBURSEMENT OF FUNDS. On the date specified in each
Notice of Loan, U.S. Bank will make available to Americold each
Loan requested to be made on such date. All such amounts will be
made available in U.S. dollars and immediately available funds.
2.5 NOTE.
(a) Americold's obligation to pay the principal of,
and interest on, all the Loans made will be evidenced by a
promissory note (the "Note") duly executed and delivered by
Americold substantially in the form of Exhibit A hereto with
blanks appropriately completed in conformity herewith. The Note
will (i) be payable to the order of U.S. Bank and be dated the
Effective Date, (ii) be in the stated principal amount equal to
the Commitment and be payable in the principal amount of the
Loans made by U.S. Bank, (iii) mature on the Termination Date,
(iv) bear interest as provided in the appropriate clause of
Section 2.8 in respect of the Prime Rate Loans and the Eurodollar
Loans, as the case may be, evidenced thereby, (v) be subject to
prepayment as provided in Article 5, and (vi) be entitled to the
benefits of this Agreement, the Mortgage, and the Security
Agreement.
(b) U.S. Bank will record on its internal records the
amount of each Loan made by it and each payment and each conver-
sion in respect thereof and will, prior to any transfer of the
Note, endorse on the reverse side thereof the outstanding princi-
pal amount of Loans evidenced thereby. Failure to make any such
notation will not affect Americold's obligations in respect of
such Loans.
(c) Although the Note will be dated as of the
Effective Date, interest in respect thereof will be payable only
for the periods during which Loans are outstanding thereunder.
In addition, although the stated amount of the Note will be equal
to the Commitment, the Note will be enforceable with respect to
Americold's obligation to pay the principal thereof only to the
extent of the unpaid principal amount of the Loans outstanding
thereunder at the time such enforcement will be sought.
2.6 CONVERSIONS. Americold will have the option to
convert on any Business Day all or a portion of the outstanding
principal amount of the Loans from one Type of Loan into the
other Type, PROVIDED that (a) except as otherwise provided in
Section 2.10(b) or 2.11, Eurodollar Loans may be converted only
on the last day of an Interest Period applicable thereto and no
such partial conversion of Eurodollar Loans will reduce the
outstanding principal amount of Eurodollar Loans made pursuant to
a single Loan to less than $1,000,000, (b) if a Default or Event
of Default is then in existence, Eurodollar Loans may only be
converted into Prime Rate Loans, and (c) Prime Rate Loans may be
converted into Eurodollar Loans only if no Default or Event of
Default is then in existence. Each such conversion will be
effected by Americold by giving U.S. Bank written or telephone
notice (confirmed in writing) prior to noon (Portland, Oregon,
time) of the date of the desired conversion if the conversion is
into Prime Rate Loans and at least three Business Days' prior
written or telephonic notice (confirmed in writing) if the
conversion is into Eurodollar Loans (a "Notice of Conversion")
specifying the Loans to be so converted and if to be converted
into Eurodollar Loans, the Interest Period to be initially
applicable thereto. Upon any such conversion, the proceeds
thereof will be applied directly on the date of such conversion
to repay the outstanding principal amount of the Loans being
converted.
2.7 [SECTION OMITTED]
2.8 INTEREST RATES, PAYMENT DATE.
(a) Americold agrees to pay interest in respect of the
unpaid principal amount of each Prime Rate Loan from the date of
the respective Prime Rate Loan at a rate per annum which will be
(i) 1 percent in excess of the Prime Rate in effect from time to
time (ii) adjusted prospectively as of the 91st day after the
close of each fiscal year of Americold and the 46th day after the
close of each fiscal quarter of Americold, by adding or
subtracting the applicable adjustment factor set forth below
computed as of the end of the respective fiscal quarter or year:
FIXED CHARGE COVERAGE RATIO ADJUSTMENT
FACTOR
1.19 or less +.25%
Above 1.19 through 1.50 0%
Above 1.50 through 1.75 -.25%
Above 1.75 through 2.00 -.50%
Above 2.00 through 2.25 -.75%
Above 2.25 -1.00%
For the purposes of this subsection 2.8(a) the term "Fixed Charge
Coverage Ratio" shall mean the ratio of (x) EBITDA plus cash on
hand to (y) Fixed Charges.
(b) Americold agrees to pay interest in respect of the
unpaid principal amount of each Eurodollar Loan from the date of
the respective Eurodollar Loan at a rate per annum which will be
(i) 2 percent in excess of the relevant Eurodollar Rate
(ii) adjusted prospectively, as of the 91st day after the close
of each fiscal year of Americold and the 46th day after the close
of each fiscal quarter of Americold, by adding or subtracting the
applicable adjustment factor computed as of the end of the
respective fiscal quarter or year from the table set forth in
Section 2.8(a), above.
(c) Overdue principal, and, to the extent permitted by
law, all overdue interest in respect of each Loan will, notwith-
standing anything to the contrary contained in Section 2.8(a) or
(b), bear interest at a rate per annum equal to 2 percent per
annum in excess of the Prime Rate in effect from time to time,
PROVIDED that during any period principal or interest is overdue
(whether by acceleration or otherwise), (x) no Eurodollar Loan
will at any time during an Interest Period applicable thereto
bear interest at a rate per annum less than 1 percent in excess
of the rate of interest which would otherwise be applicable
thereto pursuant to Section 2.8(b), and (y) no Loan will bear
interest after maturity at a rate per annum less than 1 percent
in excess of the rate of interest applicable thereto at maturity.
(d) Interest will accrue from and including the date
of any Loan to but excluding the date of any repayment thereof
(and the date of interest payment thereon) and will be payable
(i) in respect of each Prime Rate Loan, quarterly in arrears on
each Quarterly Payment Date, and (ii) in respect of each
Eurodollar Loan, quarterly in arrears on each Quarterly Payment
Date and on the last day of each Interest Period applicable to
such Loan, and (iii) in the case of all Loans, on any prepayment
or conversion (on the amount prepaid or converted), at maturity
(whether by acceleration or otherwise) and, after such maturity,
on demand.
(e) All computations of interest will be calculated on
the actual number of days elapsed over a year of 360 days.
2.9 INTEREST PERIODS. Upon advance notice by Americold in
accordance with Section 2.3 (in the case of Loans) or Section 2.6
(in the case of conversions), Americold will have the right to
elect by giving U.S. Bank written notice (or telephonic notice
confirmed in writing) the interest period (each an "Interest
Period") applicable to each Eurodollar Loan, which Interest
Period will, at the option of Americold, be a one-, two-, three-,
or six-month period, PROVIDED that:
(a) the initial Interest Period for any Eurodollar
Loan will commence on the date of such Loan (including the date
of any conversion from a Prime Rate or other Type Loan) and each
Interest Period occurring thereafter in respect of such Loan will
commence on the day on which the next preceding Interest Period
expires;
(b) for any Eurodollar Loan, if any Interest Period
would otherwise expire on a day which is not a Business Day, such
Interest Period shall expire on the next succeeding Business Day,
PROVIDED that if any Interest Period would otherwise expire on a
day which is not a Business Day but is a day of the month after
which no further Business Day occurs in such month, such Interest
Period will expire on the next preceding Business Day; and
(c) no Interest Period will extend beyond the Termina-
tion Date.
If upon the expiration of any Interest Period, Americold has
failed to elect a new Interest Period to be applicable to the
respective Eurodollar Loans as provided above, Americold will be
deemed to have elected to convert such Eurodollar Loans, as the
case may be, into Prime Rate Loans effective as of the expiration
date of such current Interest Period.
2.10 INCREASED COSTS, ILLEGALITY, ETC.
(a) In the event that U.S. Bank will have determined
(which determination will, absent manifest error, be final and
conclusive and binding upon all parties but, with respect to the
following clause (i), will be made only after consultation with
Americold):
(i) on any date for determining the Eurodollar Rate
for any Interest Period applicable to any of its Eurodollar
Loans, that by reason of any changes arising after the date
of this Agreement affecting the interbank eurodollar market,
adequate and fair means do not exist for ascertaining the
applicable interest rate on the basis provided for in the
definition of Eurodollar Rate; or
(ii) at any time, that the relevant Eurodollar
Rate applicable to any of its Eurodollar Loans will not
represent the effective pricing to U.S. Bank for funding or
maintaining a Eurodollar Loan because of any change since
the date of this Agreement (x) in any applicable law or
governmental rule, regulation, guideline, or order (or any
interpretation thereof and including the introduction of any
new law or governmental rule, regulation, guideline, or
order) (such as, for example, but not limited to a change in
official reserve requirements, but, in all events, excluding
reserves to the extent included in the computation of the
Eurodollar Rate) and/or (y) other circumstances affecting
U.S. Bank or the interbank eurodollar market or the position
of U.S. Bank in such market; or
(iii) at any time, that the making or continuance by
U.S. Bank of any Eurodollar Loan has become unlawful by
compliance by it in good faith with any law, governmental
rule, regulation, guideline, or order, or has become
impracticable as a result of a contingency occurring after
the date of this Agreement which materially and adversely
affects the interbank eurodollar market;
then, and in any such event, U.S. Bank will, promptly after
making or learning of such determination, give notice (by tele-
phone confirmed in writing) to Americold of such determination.
Thereafter (x) in the case of clauses (i) and (ii), Americold
will pay to U.S. Bank, upon written demand therefor, such
additional amounts (in the form of an increased rate of, or a
different method of calculating, interest or otherwise as U.S.
Bank will reasonably determine) as will be required to cause U.S.
Bank to receive interest with respect to its affected Eurodollar
Loan at a rate per annum which will maintain the margin (adjusted
as set forth in Section 2.8(b)) in excess of the effective
pricing to U.S. Bank to make or maintain such Eurodollar Loan (a
written notice as to additional amounts owed U.S. Bank, showing
the basis for the calculation thereof, submitted to Americold by
U.S. Bank will, absent manifest error, be final and conclusive
and binding upon all of the parties hereto) and (y) in the case
of clause (iii), Americold will take one of the actions specified
in Section 2.10(b) as promptly as possible and, in any event,
within the time period required by law.
(b) At any time that any of its Eurodollar Loans are
affected by the circumstances described in Section 2.10(a),
Americold may (and in the case of a Eurodollar Loan affected
pursuant to Section 2.10(a) (iii) will) either (x) if the
affected Eurodollar Loan is then being made pursuant to a Loan or
a conversion, (i) cancel said Loan or conversion or (ii) require
U.S. Bank to make the requested Loan as, or maintain its
outstanding Loan being converted as, a Prime Rate Loan, in either
cab by giving U.S. Bank telephonic notice (confirmed in writing)
thereof on the same date that Americold was notified by U.S. Bank
pursuant to Section 2.10(a), or (y) if the affected Eurodollar
Loan or Loans are then outstanding, upon at least one Business
Day's telephonic notice (confirmed in writing) to U.S. Bank,
require U.S. Bank to convert each Eurodollar Loan so affected
into a Prime Rate Loan.
2.11 COMPENSATION. Unless already included in the
applicable Eurodollar Rate by virtue of clause (b) of the defini-
tion of Eurodollar Rate, Americold will compensate U.S. Bank,
upon U.S. Bank's written request (which request will set forth
the basis for requesting such amounts), for (a) all costs
incurred, losses suffered, or payments made by U.S. Bank which
are applied or allocated to U.S. Bank by reason of any and all
present or future reserves, deposits, or similar requirements
(whether or not such reserves or deposits are match-funded by
U.S. Bank) imposed by Regulation D in connection with any
Eurodollar Rate Loan; and (b) all reasonable losses, expenses,
and liabilities (including, without limitation, any interest paid
by U.S. Bank to lenders of funds borrowed by it to make or carry
its Eurodollar Loan to the extent not recovered by U.S. Bank in
connection with the re-employment of such funds), which
U.S. Bank may sustain: (i) if for any reason attributable to
Americold a Eurodollar Loan does not occur on a date specified
therefor in a Notice of Loan or Notice of Conversion (whether or
not withdrawn), (ii) if any repayment or conversion of any of its
Eurodollar Loans occurs, whether by voluntary prepayment (which
shall be allowed hereunder), acceleration, or any requirements of
this Agreement, on a date which is not the last day of an
Interest Period applicable thereto, (iii) if any prepayment or
conversion of any of its Eurodollar Loans is not made on any date
specified in a notice of prepayment or Notice of Conversion given
by Americold, or (iv) as a consequence of (x) any default by
Americold in repaying its Loans or any other amounts owing
hereunder when required by the terms of this Agreement or (y) to
the extent not covered by the preceding clauses, an election made
or action taken by Americold pursuant to Section 2.10(b).
2.12 VOLUNTARY REDUCTION OF COMMITMENTS. Upon at least
three Business Days' prior written or telephonic notice
(confirmed in writing) to U.S. Bank, Americold will have the
right, without premium or penalty, to terminate the unutilized
portion of the Commitment, in part or in whole, provided that any
partial reduction pursuant to this Section 2.12 will be in the
amount of at least $1,000,000, and provided further that no
reduction may be made below an amount equal to the sum of Loans
and Letters of Credit Outstanding.
ARTICLE 3
LETTERS OF CREDIT
3.1 LETTERS OF CREDIT.
(a) Subject to and upon the terms and conditions
herein set forth, U.S. Bank will issue, upon written request of
Americold, at any time and from time to time on or after the
Closing Date and prior to the Termination Date, for the account
of Americold and for the benefit of any holder of payment obliga-
tions of Americold or any Subsidiary, one or more irrevocable
letters of credit which will not exceed $10,000,000 in the aggre-
gate at any time in such form as may be approved by U.S. Bank in
support of said payment obligations (each a "Letter of Credit").
(b) Notwithstanding the foregoing, (i) no Letter of
Credit will be issued the Stated Amount of which, when added to
the sum of the aggregate principal amount of all Loans and
Letters of Credit Outstanding, at such time, would exceed the
lesser of the Commitment or the Borrowing Base and (ii) each
Letter of Credit will by its terms terminate on or before the
Termination Date.
3.2 MINIMUM STATED AMOUNT. The Stated Amount of each
Letter of Credit will be not less than $25,000.
3.3 LETTER OF CREDIT REQUESTS. Whenever Americold desires
that a Letter of Credit be issued after the Closing Date for its
account, Americold will give U.S. Bank at least five Business
Days' written notice thereof specifying the beneficiary of the
requested Letter of Credit, the term thereof, and the conditions
upon which payments will be required to be made thereunder.
3.4 AGREEMENT TO REPAY LETTER OF CREDIT DRAWINGS.
(a) Americold hereby agrees to reimburse U.S. Bank, by
making payment in immediately available funds at its Office, for
any payment or disbursement made by U.S. Bank under any Letter of
Credit (each such amount, so paid or disbursed until reimbursed,
an "Unpaid Drawing") immediately after such payment or disburse-
ment (provided notice is given to Americold by noon (Portland,
Oregon, time), on the date of such payment or disbursement,
otherwise, on the next Business Day) with interest on the amount
so paid or disbursed by U.S. Bank, to the extent not reimbursed
(including a reimbursement pursuant to a Loan made in accordance
with the last sentence of this Section 3.4(a)) prior to noon
(Portland, Oregon, time) on the date of such payment or disburse-
ment, from and including the date paid or disbursed to but not
including the date U.S. Bank was reimbursed therefor at a rate
per annum which will be 1.5 percent (2.5 percent after the third
day following such Drawing) in excess of the Prime Rate in effect
from time to time, such interest also to be payable on demand.
At any time after a drawing under a Letter of Credit (each a
"Drawing") is made, US. Bank may, automatically and without
notice but subject to the satisfaction of the conditions speci-
fied in Article 6, make a Prime Rate Loan in the amount of such
Drawing (to the extent such Loan is then permitted to be out-
standing pursuant to Section 2.1 and Section 3.1(a)), the
proceeds of which will be applied directly by U.S. Bank to
reimburse such Drawing.
(b) Americold's obligations under this Section 3.4 to
reimburse U.S. Bank with respect to Unpaid Drawings (including,
in each case, interest thereon) will be absolute and uncondi-
tional under any and all circumstances and irrespective of any
setoff, counterclaim, or defense to payment which Americold may
have or have had against U.S. Bank, including, without limita-
tion, any defense based upon the failure of any Drawing to
conform to the terms of the Letter of Credit or any nonapplica-
tion or misapplication by the beneficiary of the proceeds of such
Drawing, PROVIDED, that Americold will not be obligated to
reimburse U.S. Bank for any wrongful payment made by U.S. Bank
under a Letter of Credit as a result of acts or omissions consti-
tuting willful misconduct or gross negligence on the part of U.S.
Bank.
3.5 INCREASED COSTS. If at any time after the date
hereof, the introduction of any change in applicable law, rule,
or regulation or in the interpretation or administration thereof
by any governmental authority charged with the interpretation or
administration thereof, or compliance by U.S. Bank with any
request or directive by any such authority (whether or not having
the force of law) will either (i) impose, modify, or make
applicable any reserve, deposit, capital adequacy requirement, or
similar requirement against Letters of Credit issued by
U.S. Bank, or (ii) will impose on U.S. Bank any other conditions
affecting this Agreement or any Letter of Credit; and the result
of any of the foregoing is to increase the cost to U.S. Bank of
issuing, maintaining, or participating in any Letter of Credit,
or reduce the amount of any sum received or receivable by U.S.
Bank hereunder, then, upon demand (which demand will be given by
U.S. Bank promptly after it determines such increased cost or
reduction is applicable to Letters of Credit issued hereunder) to
Americold by U.S. Bank, Americold will pay to U.S. Bank such
additional amount or amounts as will compensate U.S. Bank for
such increased cost or reduction. A certificate submitted to
Americold by U.S. Bank setting forth the basis for the determina-
tion of such additional amount or amounts necessary to compensate
U.S. Bank as aforesaid will, absent manifest error, be conclusive
and binding on Americold.
ARTICLE 4
FEES
4.1 FEES.
(a) On the Effective Date, Americold agrees to pay
U.S. Bank a non-refundable commitment fee in the sum of $275,000.
U.S. Bank will credit against such sum all facility fees paid by
Americold under Section 4.1(a) of the First Amended and Restated
Credit Agreement for the period after February 28, 1995.
(b) Americold also agrees to pay U.S. Bank a commit-
ment fee for the period from the Closing Date to and including
the Termination Date, computed at a rate equal to .375 percent
per annum on the daily average unutilized Commitment. This
accrued fee will be due and payable in arrears on each Quarterly
Payment Date and on the Termination Date.
(c) Americold also agrees to pay to U.S. Bank a fee in
respect to each Letter of Credit issued by U.S. Bank ("Letter of
Credit Fee") equal to 1.5 percent per annum of the Stated Amount
of such Letter of Credit. The Letter of Credit Fee will be due
and payable upon the issuance or extension of such Letter of
Credit.
(d) All computations of fees hereunder will be calcu-
lated on the actual number of days elapsed over a year of
360 days.
ARTICLE 5
PAYMENTS
5.1 VOLUNTARY PREPAYMENTS. Americold will have the right
to prepay the Loans, without premium or penalty, in whole or in
part from time to time on the following terms and conditions:
(a) Prime Rate Loans may be prepaid without notice, in
any amount. In the case of a prepayment of Eurodollar Loans,
Americold will give U.S. Bank at least three Business Days' prior
written or telephonic notice (confirmed in writing) of its intent
to prepay the Loans, the amount of such prepayment, and the
specific Loan pursuant to which made;
(b) each partial prepayment of Eurodollar Loans will
be in an aggregate principal amount of at least $500,000,
PROVIDED that no partial prepayment of Eurodollar Loans made
pursuant to a single Loan will reduce the outstanding Loans to an
amount less than $1,000,000; and
(c) except as provided in Sections 2.10 and 2.11,
prepayments of Eurodollar Loans made pursuant to this Section 5.1
may only be made on the last day of an Interest Period applicable
thereto.
5.2 METHOD AND PLACE OF PAYMENT. Except as otherwise
specifically provided herein, (a) all payments of interest,
principal, and fees under this Agreement will be made to U.S.
Bank not later than noon (Portland, Oregon, time) on the date
when due and will be made in lawful money of the United States of
America in immediately available funds at the Office of U.S. Bank
and (b) whenever any payment to be made hereunder or under the
Note will be stated to be due on a day which is not a Business
Day, the due date thereof will be extended to the next succeeding
Business Day and, with respect to payments of principal, interest
will be payable at the applicable rate during such extension.
5.3 NET PAYMENTS. All payments made by Americold
hereunder will be made without setoff, counterclaim, or other
defense (except repayment).
ARTICLE 6
CONDITIONS OF LENDING
6.1 CONDITIONS PRECEDENT TO EFFECTIVENESS. This Agreement
shall not be effective until the following conditions shall have
been satisfied:
(a) EFFECTIVENESS OF PLAN OF REORGANIZATION. The Plan
of Reorganization shall have become effective according to its
terms, including but not limited to the expiration of any appeal
period with respect to the confirmation order.
(b) EXECUTION OF CREDIT DOCUMENTS. Americold will
have executed and delivered to U.S. Bank (i) counterparts of this
Agreement in such number as are requested by U.S. Bank, (ii) the
Note, and (iii) a Borrowing Certificate.
(c) NO DEFAULT; REPRESENTATIONS AND WARRANTIES. There
will exist no Default or Event of Default and all representations
and warranties contained herein and in any other certificate or
financial statement (excluding financial projections) delivered
in connection herewith will be true and correct in all material
respects with the same effect as though such representations and
warranties had been made on and as of the date this Agreement
becomes effective.
(d) OFFICER'S CERTIFICATE. U.S. Bank will have
received a certificate signed by the President or any Vice
President of Americold stating that the conditions set forth in
Sections 6.1(a), 6.1(c), and 6.1(i) have been satisfied as of
such date.
(e) OPINIONS OF COUNSEL. U.S. Bank will have received
an opinion addressed to U.S. Bank and dated the Effective Date,
from counsel to Americold, which opinion will be in form and
substance satisfactory to U.S. Bank.
(f) CORPORATE PROCEEDINGS. All corporate and legal
proceedings and all instruments and agreements in connection with
the transactions contemplated by this Agreement will be
satisfactory in form and substance to U.S. Bank, and U.S. Bank
will have received all information and copies of all documents
and papers, including records of corporate proceedings and
governmental approvals, if any, which U.S. Bank may have
reasonably requested in connection therewith, such documents and
papers where appropriate to be certified by proper corporate or
governmental authorities.
(g) SECURITY DOCUMENTS; FILINGS. The Security
Agreement will be in full force and effect; the Security Agree-
ment or financing statements or other instruments with respect
thereto, as may be necessary, will have been duly filed or
recorded in such manner and in such places as are required by law
to establish, perfect, preserve, and protect the liens granted to
U.S. Bank pursuant thereto and all taxes, fees, and other charges
payable in connection therewith will have been paid in full.
(h) RECORD SEARCHES. A search, made no more than
30 days prior to the date this Agreement is to become effective,
of the Uniform Commercial Code filing offices or other registers
in each jurisdiction in which Collateral is located and in each
of the other filing or recording places referred to in
Section 6.1(g) will have revealed no filings or recordings in
effect with respect to the Collateral except filings and
recordings acceptable to U.S. Bank in its sole discretion at the
time of such Closing Date and which are listed as such in
Exhibit D hereto ("Permitted Filings"), in favor of any Person
other than U.S. Bank, and U.S. Bank will have received a copy of
the search reports received as a result of such search and
acknowledgment copies of the financing statements or other
instruments required to be filed or recorded pursuant to
Section 6.1(g) bearing evidence of the recording of such
statements or instruments at each of the filing or recording
places referred to in Section 6.1(g).
(i) ADVERSE CHANGE. Since February 28, 1995, there
has been no material adverse change in the business, operations,
condition (financial or otherwise), or prospects of Americold, or
of Americold and its Subsidiaries taken as a whole, except
insofar as the filing of Americold's pending Chapter 11
proceeding might be deemed a material adverse change.
(j) DELIVERY OF DOCUMENTS. Each of the Note,
certificates, legal opinions, and other documents and papers
referred to in this Article 6, unless otherwise specified, will
be delivered to U.S. Bank and will be, along with all matters
relating to this Agreement and the Loans, satisfactory in form
and substance to U.S. Bank and its counsel.
6.2 CONDITIONS PRECEDENT TO EACH LOAN AND LETTER OF
CREDIT. The obligation of U.S. Bank to make Loans and issue
Letters of Credit is subject to the condition that on the date of
such Loan or Letter of Credit, the following statements shall be
true and correct:
(a) U.S. Bank shall have received the notice required
by Section 2.3;
(b) The Loan or Letter of Credit will not contravene
any provision of law, the articles of incorporation (or the
charter) or bylaws, or of any agreement binding upon Americold or
its subsidiaries;
(c) Each and every of the representations and
warranties of Americold in this Agreement shall be true and
correct in all material respects; and
(d) No event shall have occurred and be continuing, or
would result from such Loan or Letter of Credit, which consti-
tutes, or would, with passage of time or giving of notice or
both, constitute a Default or Event of Default.
Americold agrees not to request or accept Loans or
Letters of Credit under this Agreement unless the foregoing
statements shall be true and correct, and any request for or
acceptance by Americold of Loans or Letters of Credit hereunder
shall be deemed to constitute Americold's representation that
such statements are true and correct on the date the Loans are
made or Letters of Credit requested or issued.
ARTICLE 7
REPRESENTATIONS AND WARRANTIES
In order to induce U.S. Bank to enter into this
Agreement and to make the Loans and to issue the Letters of
Credit, Americold makes the following representations and
warranties as of the Effective Date and as of the date of each
subsequent Loan or issuance of a Letter of Credit, which will
survive the execution and delivery of this Agreement and the
Note, the making of the Loans, and the issuance of the Letters of
Credit:
7.1 CORPORATE STATUS. Each of Americold and its Subsidi-
aries (a) is a duly organized and validly existing corporation in
good standing under the laws of the jurisdiction of its incorpo-
ration, (b) has the power and authority to own its property and
assets and to transact the business in which it is engaged, and
(c) is duly qualified as a foreign corporation and in good
standing in each jurisdiction where the ownership, lease, or
operation of property or the conduct of its business requires
such qualification except where the failure to be so qualified
would not have a material adverse effect on the business, opera-
tions, property, condition (financial or otherwise), or immediate
prospects of Americold and its Subsidiaries taken as a whole.
7.2 CORPORATE POWER AND AUTHORITY. Each of Americold and
its Subsidiaries has the corporate power to execute, deliver, and
carry out the terms and provisions of each of the Credit Docu-
ments to which it is party and has taken all necessary corporate
action to authorize the execution, delivery, and performance by
it of each of the Credit Documents to which it is party. Each of
Americold and its Subsidiaries has duly executed and delivered
each of the Credit Documents to which it is party, and each of
the Credit Documents to which it is party constitutes its legal,
valid, and binding obligations enforceable in accordance with its
respective terms.
7.3 NO VIOLATION. Neither the execution, delivery, or
performance by Americold or its Subsidiaries of the Credit Docu-
ments, nor compliance by them with the terms and provisions
thereof, (a) will contravene any applicable provision of any law,
statute, rule, regulation, order, writ, injunction, or decree of
any court or governmental instrumentality, or (b) will conflict
or be inconsistent with or result in any breach of any of the
terms, covenants, conditions, or provisions of, or constitute a
default under, or, except for the liens in favor of U.S. Bank
pursuant to the Mortgages and the Security Agreement, result in
the creation or imposition of (or the obligation to create or
impose) any Lien upon any of the property or assets of Americold
or any Subsidiary pursuant to the terms of any indenture,
mortgage, deed of trust, agreement, or other instrument to which
Americold or any Subsidiary is a party or by which it or any of
its property or assets is bound, or (c) will violate any
provision of the Certificate of Incorporation or bylaws of
Americold or any Subsidiary.
7.4 LITIGATION. There are no actions, suits, or
proceedings pending or, to the best of the knowledge of
Americold, threatened with respect to any Credit Document or that
are reasonably likely to materially and adversely affect the
operations, business, property, assets, condition (financial or
otherwise), or immediate prospects of Americold and its
Subsidiaries taken as a whole. Americold's pending Chapter 11
proceeding will not be deemed a breach of the representation in
this Section 7.4
7.5 FINANCIAL STATEMENTS; FINANCIAL CONDITION; ETC.
(a) Americold has delivered to U.S. Bank income
projections of Americold and its Subsidiaries for the period
ending on February 28, 1996, and each of the first twelve fiscal
years to occur thereafter. Such projections represent good faith
estimates of Americold of the income of Americold and its
Subsidiaries for the periods covered thereby.
(b) On the Effective Date and after giving effect to
all the transactions contemplated hereby, (i) the assets of
Americold, at a fair valuation, will exceed its liabilities,
including contingent liabilities, (ii) the remaining capital of
Americold will not be unreasonably small to conduct its business,
and (iii) Americold will not have incurred debts, and will not
intend to incur debts, beyond its ability to pay such debts as
they mature. For purposes of this Section 7.5(b), "debt" means
any liability on a claim, and "claim" means (y) right to payment,
whether or not such right is reduced to judgment, liquidated,
unliquidated, fixed, contingent, matured, unmatured, disputed,
undisputed, legal, equitable, secured or unsecured; or (z) right
to an equitable remedy for breach of performance if such breach
gives rise to a payment, whether or not such right to an
equitable remedy is reduced to judgment, fixed, contingent,
matured, unmatured, disputed, undisputed, secured, or unsecured.
7.6 USE OF PROCEEDS; MARGIN REGULATIONS. All proceeds of
each Loan will be used by Americold (a) to pay amounts payable
and expenses incurred hereunder and, (b) for general working
capital purposes, including to reimburse Drawings under Letters
of Credit. No part of the proceeds of any Loan will be used to
make payments of principal on the effective date of the Plan of
Reorganization with respect to any Americold Indebtedness. No
part of the proceeds of any Loan will be used by Americold to
purchase or carry any Margin Stock or to extend credit to others
for the purpose of purchasing or carrying any Margin Stock.
Neither the making of any Loan nor the use of the proceeds
thereof will violate or be inconsistent with the provisions of
Regulations G, T, U, or X of the Board of Governors of the
Federal Reserve System.
7.7 GOVERNMENTAL APPROVALS. No order, consent, approval,
license, authorization, or validation of, or filing, recording,
or registration with (except as have been obtained or made or
will be obtained or made prior to the time required by this
Agreement), or exemption by, any governmental or public body or
authority, or any subdivision thereof, is required to authorize,
or is required in connection with (a) the execution, delivery,
and performance of any Credit Document or (b) the legality,
validity, binding effect, or enforceability of any Credit
Document.
7.8 SECURITY INTERESTS. The Security Agreement continues,
and the Mortgage will (after execution and recording, as required
by Section 8.12 of this Agreement) provide, as security for the
Obligations, valid and enforceable security interests in and
Liens on all of the Collateral, in favor of U.S. Bank, which are
perfected and superior to and prior to the rights of all third
Persons.
7.9 TAX RETURNS AND PAYMENTS. Each of Americold and each
Subsidiary has filed all tax returns required to be filed by it
and has paid all income taxes payable by it which have become due
pursuant to such tax returns and all other taxes and assessments
payable by it which have become due, other than those not yet
delinquent and except for those contested in good faith. Each of
Americold and each Subsidiary has paid, or has provided adequate
reserves (in the good faith judgment of the management of
Americold or such Subsidiary) for the payment of, all federal and
state income taxes applicable for all prior fiscal years and for
the current fiscal year to the date hereof.
7.10 COMPLIANCE WITH ERISA. All Plans except any multi-
employer plan (as defined in Section 4001(a)(3) of ERISA) are in
substantial compliance with ERISA, no Plan is insolvent or in
reorganization, no Plan has an accumulated or waived funding
deficiency or has applied for an extension of any amortization
period within the meaning of Section 412 of the Code, neither
Americold, nor any Subsidiary, nor any ERISA Affiliate has
incurred any liability to or on account of a Plan which is a
single-employer plan as defined in Section 4001(a)(15) of ERISA
pursuant to Sections 4062, 4063, 4064, or a multiemployer plan
pursuant to Sections 515, 4201, or 4204 of ERISA which remains
unsatisfied, no proceedings have been instituted to terminate any
Plan, and no condition exists which presents a material risk to
Americold or any Subsidiary of either incurring a liability to or
on account of a Plan pursuant to any of the foregoing Sections of
ERISA or the Code. Any representation in the immediately
preceding sentence with respect to any Plan which is a multi-
employer plan (other than a representation with respect to
liability under Section 515, 4201 or 4204 of ERISA) will be to
the knowledge of Americold. As of the Closing Date, the aggre-
gate present value of all accrued benefits of all Plans which
were single-employer plans did not exceed the aggregate current
value of all assets of such Plans based upon estimated actuarial
data which has been provided to Americold by the consulting
actuaries of the Plans based upon the most recent actuarial data
as of March 1, 1991, by more than $300,000 and there has been no
material change in such liability. The aggregate present value
of unfunded contingent withdrawal liability under Title IV of
ERISA attributable to Americold or any of its Subsidiaries does
not exceed $1,500,000 as of the Closing Date, based upon the most
recent records with respect to such contingent withdrawal
liability presently available to Americold. To the knowledge of
Americold, neither Americold nor any Subsidiary of Americold has
incurred any liability (including any contingent or secondary
liability) to or on account of a Predecessor Plan.
7.11 INVESTMENT COMPANY ACT. Americold is not an "invest-
ment company" within the meaning of the Investment Company Act of
1940, as amended.
7.12 TRUE AND COMPLETE DISCLOSURE. All factual information
(taken as a whole) heretofore or contemporaneously furnished by
or on behalf of Americold in writing to U.S. Bank, for purposes
of or in connection with this Agreement or any transaction
contemplated hereby is, and all other such factual information
(taken as a whole) hereafter furnished by or on behalf of
Americold in writing to U.S. Bank will be, true and accurate in
all material respects on the date as of which such information is
dated or certified and not incomplete by omitting to state any
fact necessary to make such information (taken as a whole) not
misleading at such time in light of the circumstances under which
such information was provided.
7.13 SUBSIDIARY. Americold Services Corporation is the
only active Subsidiary of Americold. Americold owns 100 percent
of the capital stock of such Subsidiary.
7.14 PATENTS, LICENSES, FRANCHISES AND FORMULAS. Americold
and its Subsidiaries own all of the patents, trademarks, permits,
service marks, trade names, copyrights, licenses, franchises, and
formulas, or rights with respect to the foregoing, and have
obtained assignments of all leases and other rights of whatever
nature, necessary for the present conduct of its and their
businesses, without any known conflict with the rights of others
which, or the failure to obtain which, as the case may be, would
result in a material adverse effect on the business, operations,
property, or financial or other conditions of Americold and its
Subsidiaries, taken as a whole.
7.15 LABOR RELATIONS. Neither Americold nor any
Subsidiary is engaged in any unfair labor practice that could
materially and adversely affect the operations, business,
property, assets, condition (financial or otherwise), or
immediate prospects of Americold and its Subsidiaries taken as a
whole. There is (a) no significant unfair labor practice
complaint pending against Americold or any Subsidiary or, to the
best knowledge of Americold, threatened against any of them,
before the National Labor Relations Board, and no significant
grievance or significant arbitration proceeding arising out of or
under collective bargaining agreements is so pending against
Americold or any Subsidiary or, to the best knowledge of
Americold, threatened against any of them, (b) no significant
strike, labor dispute, slowdown, or stoppage pending against
Americold or any Subsidiary, or (c) to the best knowledge of
Americold, no union representation question existing with respect
to the employees of Americold or any Subsidiary and, to the best
knowledge of Americold, no union organizing activities are taking
place, except (with respect to any matter specified in clause
(a), (b), or (c), either individually or in the aggregate) such
as would not materially and adversely affect the operations,
business, property, assets, condition (financial or otherwise),
or immediate prospects of Americold and its Subsidiaries taken as
a whole.
ARTICLE 8
AFFIRMATIVE COVENANTS
Americold covenants and agrees that on and after the
Effective Date and until the Commitment and all Letters of Credit
have terminated and the Loans, together with interest, fees, and
all other obligations incurred hereunder, are paid in full:
8.1 INFORMATION COVENANTS. It will furnish to U.S. Bank:
(a) QUARTERLY REPORTS. Within 45 days after the close
of each quarterly accounting period in each fiscal year of
Americold, the consolidated balance sheets of Americold and its
Subsidiaries as at the end of such quarterly period and the
related consolidated statements of income and retained earnings
and statements of changes in financial position for such
quarterly period and for the elapsed portion of the fiscal year
ended with the last day of such quarterly period, and in each
case setting forth comparative figures for the appropriate
periods in the prior fiscal year, all of which will be certified
by the Chief Financial Officer or the Treasurer of Americold,
subject to year-end audit adjustments.
(b) ANNUAL REPORTS. Within 90 days after the close of
each fiscal year of Americold: (i) the consolidated balance
sheets of Americold and its Subsidiaries as at the end of such
fiscal year and the related consolidated statements of income and
retained earnings and statements of changes in financial position
for such fiscal year, in each case setting forth comparative
figures for the preceding fiscal year and certified by KPMG Peat
Marwick or other independent certified public accountants of
recognized national standing reasonably acceptable to U.S. Bank,
in each case together with a report of such accounting firm
stating that in the course of its regular audit of the financial
statements of Americold, which audit was conducted in accordance
with generally accepted auditing standards, such accounting firm
has obtained no knowledge of any Default or Event of Default
which has occurred and is continuing or, if in the opinion of
such accounting firm such a Default or Event of Default has
occurred and is continuing, a statement as to the nature thereof;
and (ii) a written schedule showing names, addresses, and
accounts of debtors. No document-or report shall contain a
disclaimer of opinion or adverse opinion except such as U.S.
Bank, in its sole discretion, determines to be immaterial.
(c) MANAGEMENT LETTERS. Promptly after Americold's
receipt thereof, a copy of any "management letter" documenting
any significant internal control weakness or other significant
irregularity noted during any audit that was received by
Americold from its certified public accountants.
(d) BUDGETS AND INTERIM FINANCIAL INFORMATION. By
April 30 following the beginning of each fiscal year of
Americold, a budget in form satisfactory to U.S. Bank (including
monthly budgeted statements of income and annual budgeted sources
and uses of cash and balance sheets) prepared by Americold for
the three-year period beginning on the first day of such fiscal
year for Americold and its Subsidiaries accompanied by the
statement of the Chief Financial Officer or the Treasurer of
Americold to the effect that, to the best of his knowledge, the
budget is a reasonable estimate for the periods covered thereby.
(e) OFFICER'S CERTIFICATES. At the time of the
delivery of the financial statements provided for in
Section 8.1(a) and (b), a certificate of the Chief Financial
Officer or the Treasurer of Americold to the effect that, to the
best of his knowledge, no Default or Event of Default exists or,
if any Default or Event of Default does exist, specifying the
nature and extent thereof and the actions being taken or proposed
to cure the same, which certificate will also set forth the
calculations required to establish whether Americold was in
compliance with the provisions of Sections 9.9 and 9.11,
inclusive, at the end of such fiscal quarter or year, as the case
may be.
(f) NOTICE OF DEFAULT OR LITIGATION. Promptly, and in
any event within five Business Days after any executive officer
of Americold obtains knowledge thereof, notice of (x) the
occurrence of any event which constitutes a Default or Event of
Default, (y) any litigation or governmental proceeding pending
(i) against Americold or any Subsidiary which is likely to
materially and adversely affect the operations, business,
property, assets, condition (financial or otherwise), or
prospects of Americold and its Subsidiaries taken as a whole or
(ii) with respect to any Credit Document, and (s) any other event
which is likely to materially and adversely affect the financial
condition, operations, or prospects of Americold or any
Subsidiary.
(g) OTHER REPORTS AND FILINGS. Promptly, copies of
all financial information, proxy materials, and other information
and reports, if any, (i) which Americold or any Subsidiary will
file with the Securities and Exchange Commission or any govern-
mental agencies substituted therefor (the "SEC"), or (ii) which
Americold or any Subsidiary will deliver to the trustee or the
holders of the First Mortgage Bonds or the Subordinated
Debentures.
(h) MONTHLY REPORTS. As soon as practicable (in any
event within 30 days after the end of each of the calendar months
of each year except February, and within 90 days after the end of
February) (i) consolidated financial statements of Americold and
its Subsidiaries, as at the end of such month in form and detail
similar to those customarily prepared by management for internal
use, presently referred to as IS-I, BS-1, and statements of cash
flow, setting forth in each case in comparative form the consoli-
dated figures for the corresponding month of the previous year
and (ii) a Sales and Earnings Report.
(i) BORROWING CERTIFICATE. Within 15 days following
the end of each month and at any other time upon request by U.S.
Bank (i) a Borrowing Certificate and (ii) aging lists of accounts
receivable, together with a written summary of Americold's recon-
ciliation of such lists to its general ledger and to the
Borrowing Certificate.
(j) OTHER INFORMATION. From time to time, such other
information or documents (financial or otherwise) as U.S. Bank
may reasonably request.
8.2 BOOKS, RECORDS, AND INSPECTIONS; COLLATERAL AUDITS.
Americold will, and will cause each Subsidiary to, keep proper
books of record and account in which full, true, and correct
entries in conformity with generally accepted accounting princi-
ples and all requirements of law will be made of all dealings and
transactions in relation to its business and activities.
Americold will, and will cause each Subsidiary to, permit offi-
cers and designated representatives of U.S. Bank to visit and
inspect, under guidance of officers of Americold or such Subsidi-
ary, any of the properties of Americold or such Subsidiary, and
to examine the books of account of Americold or such Subsidiary
and discuss the affairs, finances, and accounts of Americold or
such Subsidiary with, and be advised as to the same by, its and
their officers, all at such reasonable times and intervals and to
such reasonable extent as U.S. Bank may desire. Americold will
permit U.S. Bank to conduct, at the sole expense of Americold,
semiannual audits of the Collateral, the time and manner of such
audits to be determined by U.S. Bank.
8.3 MAINTENANCE OF PROPERTY, INSURANCE. Americold will,
and will cause each Subsidiary to, keep all property useful and
necessary in its business in good working order and condition,
reasonable wear and tear excepted; maintain with financially
sound and reputable insurance companies insurance on all its
property in such amounts and against such risks as a prudent
operator would carry or as is reasonably satisfactory to U.S.
Bank; and furnish to U.S. Bank, upon written request, full
information as to the insurance carried.
8.4 TAXES. Americold will, and will cause each Subsidiary
to, pay when due all taxes which, if not paid when due, would
materially and adversely affect the financial condition or opera-
tions of Americold or such Subsidiary, except those not yet
delinquent and except as contested in good faith and by appro-
priate proceedings if adequate reserves (in the good faith
judgment of the management of Americold) have been established
with respect thereto.
8.5 CORPORATE FRANCHISES. Americold will, and will cause
each Subsidiary to, do or cause to be done all things necessary
to preserve and keep in full force and effect its existence and
its material rights, franchises, licenses, and patents; provided,
however, that nothing in this Section 8.5 will prevent the with-
drawal by Americold or any Subsidiary of its qualification as a
foreign corporation in any jurisdiction where such withdrawal
would not have a material adverse effect on the business of
Americold or such Subsidiary.
8.6 COMPLIANCE WITH STATUTES, ETC. Americold will, and
will cause each Subsidiary to, comply with all applicable
statutes, regulations, and orders of, and all applicable restric-
tions imposed by, all governmental bodies, domestic or foreign,
in respect of the conduct of its business and the ownership of
its property (including applicable statutes, regulations, orders,
and restrictions relating to environmental standards and controls
and to the ADA), except such noncompliances as could not; in the
aggregate, materially and adversely affect the operations,
business, property, assets, condition (financial or otherwise),
or immediate prospects of Americold and its Subsidiaries taken as
a whole.
8.7 ERISA. As soon as possible and, in any event, within
10 days after Americold or a Subsidiary knows or has reason to
know that a Reportable Event has occurred with respect to a Plan
(which is not a multiemployer plan), that an application is to be
or has been made to the Secretary of the Treasury for a waiver of
the minimum funding standard or the extension of any amortization
period under Section 412 of the Code with respect to a Plan
(which is not a multiemployer plan), that a Plan (which is not a
multi-employer plan) has been or may be terminated, that
proceedings are likely to be or have been instituted to terminate
a Plan (which is not a multi-employer plan), or that Americold, a
Subsidiary, or an ERISA Affiliate will or may incur any liability
to or on account of a Plan or a Predecessor Plan which is a
single-employer plan under Sections 4062, 4063, or 4064, or which
is a multiemployer plan under Sections 515, 4201, or 4204 of
ERISA, Americold will deliver to U.S. Bank a certificate of a
financial officer setting forth details as to such occurrence and
action, if any, which Americold or the Subsidiary is required or
proposes to take, together with any notices required or proposed
to be filed with or by Americold, the Subsidiary, the ERISA
Affiliate, the PBGC, or the plan administrator with respect
thereto. Copies of any notices required to be delivered to U.S.
Bank hereunder will be delivered no later than 10 days after the
later of the date such notice has been filed with the Internal
Revenue Service or the PBGC or received by Americold or any
Subsidiary.
8.8 PERFORMANCE OF OBLIGATIONS. Americold will, and will
cause each Subsidiary to, perform all of its obligations under
the terms of each valid mortgage, indenture, security agreement,
and other debt instrument by which it is bound, except such
nonperformances as could not in the aggregate materially and
adversely affect the operations, business, property, assets,
condition (financial or otherwise), or immediate prospects of
Americold or Americold and its Subsidiaries taken as a whole.
8.9 FURTHER ASSURANCES. Americold will, at its own
expense, make, execute, endorse, acknowledge, file, and/or
deliver to U.S. Bank from time to time such vouchers, invoices,
schedules, confirmatory assignments, conveyances, financing
statements, transfer endorsements, powers of attorney, certifi-
cates, reports, and other assurances or instruments, and take
such further steps relating to the collateral covered by any of
the Mortgages and the Security Agreements as U.S. Bank may
reasonably require. Furthermore, Americold will cause to be
delivered to U.S. Bank such opinions of counsel, UCC searches,
and other related documents as may be requested by U.S. Bank to
assure U.S. Bank that this Section 8.9 has been complied with.
8.10 FINANCIAL COVENANTS FOR ASC. Americold will maintain
ASC's net worth at the level required to be maintained by
customers which impose such requirements on ASC and will maintain
ASC's working capital at the level required to be maintained by
customers or securities and commodity exchanges (including the
Chicago Mercantile Exchange) which impose such requirements on
ASC.
8.11 FACILITY RESTING REQUIREMENTS. Americold will have no
outstanding Loans (including Loans to pay Unpaid Drawings
pursuant to Section 3.4) for: (a) one 30 consecutive day period
during the fiscal year ending February 28, 1997, and (b) two
separate 30 consecutive day periods during each of the fiscal
years ending February 28, 1998 and 1999. There shall be no
facility resting requirement during the fiscal year ending
February 29, 1996.
8.12 MORTGAGES. Any Mortgage provided to U.S. Bank
pursuant to this Agreement shall include a security interest in
all associated fixtures, equipment, and personal property, as
additional security for the Obligations. Americold shall pay the
cost of all appraisals of Mortgaged Properties required by U.S.
Bank and mortgagee's standard title insurance premiums for title
insurance in a face amount equal to the initial value of the
Mortgaged Property agreed upon by U.S. Bank and Americold.
Americold shall also pay the costs of recording any Mortgage, any
transfer taxes or escrow fees, and the costs of satisfying
requirements (e.g., insurance premiums) set forth in any
Mortgage. Americold may elect at any time to have any Mortgage
or Mortgages released or reconveyed by U.S. Bank, and U.S. Bank
will promptly release or reconvey the Mortgage(s) provided that
no Default or Event of Default then exists or would be created by
such release or reconveyance, and provided that Americold pays
any amount necessary to reduce the sum of outstanding Loans and
Letter(s) of Credit Outstanding to the lesser of the Commitment
or the Borrowing Base calculated without giving effect to the
Mortgage or Mortgages to be release or reconveyed. Provided that
no Default or Event of Default then exists or would be created by
such release, Americold may also elect to have the ASC stock
released from the pledge at any time and U.S. Bank will promptly
release the stock upon receipt of such election.
8.13 [SECTION OMITTED.]
ARTICLE 9
NEGATIVE COVENANTS
Americold covenants and agrees that until the
Commitment and all Letters of Credit have terminated and the
Loans, together with interest, fees, and all other obligations
incurred hereunder, are paid in full:
9.1 [SECTION OMITTED.]
9.2 CONSOLIDATION, MERGER, SALE OF ASSETS, ETC. Americold
will not, and will not permit any Subsidiary to, (a) wind up,
liquidate, or dissolve its affairs, (b) enter into any
transaction of merger or consolidation in which Americold or one
of its Subsidiaries is not the surviving entity, or (c) convey,
sell, lease, or otherwise dispose of (or agree to do any of the
foregoing at any future time) all or any part of its property or
assets except as permitted in Section 4.12 set forth in Exhibit E
hereto.
9.3 LIMITATION ON DIVIDENDS AND VOLUNTARY PAYMENTS.
Except as permitted in Section 4.06 set forth in Exhibit E
hereto, (a) Americold will not declare or pay any dividends, or
return any capital, to its stockholders, or authorize or make any
other distribution, payment, or delivery of property or cash to
its stockholders as such, or redeem, retire, purchase, or
otherwise acquire, directly or indirectly, for a consideration,
any shares of any class of its capital stock now or hereafter
outstanding (or any options or warrants issued by Americold with
respect to its capital stock), or set aside any funds for any of
the foregoing purposes, or permit any of its Subsidiaries to
purchase or otherwise acquire for a consideration any shares of
any class of the capital stock of Americold now or hereafter
outstanding (or any options or warrants issued by Americold with
respect to its capital stock) and (b) Americold will not, and
will not permit any Subsidiary to, make (or give notice that it
intends to make) any voluntary or optional payment or prepayment
on or voluntary or optional redemption or acquisition for value
of (including, without limitation, by way of depositing with the
trustee with respect thereto money or securities before due for
the purpose of paying when due) any Subordinated Debt.
9.4 [SECTION OMITTED.]
9.5 [SECTION OMITTED.]
9.6 [SECTION OMITTED.]
9.7 TRANSACTIONS WITH AFFILIATES. Americold will not, and
will not permit any Subsidiary to, conduct any business or enter
into any transaction or series of related transactions (including
the purchase, sale, lease, or exchange of any property or the
rendering of any service) with any Affiliate of Americold or any
legal or beneficial owner of 5 percent or more of any class of
capital stock of Americold or with any Affiliate of such owner
(other than a wholly owned Subsidiary of Americold or an employee
stock ownership plan for the benefit of Americold's or a Subsidi-
ary's employees) unless (a) the terms of such business, transac-
tion or series of transactions are (i) set forth in writing and
(ii) as favorable to Americold or such Subsidiary as terms that
would be obtainable at the time for a comparable transaction or
series of related transactions in arm's-length dealings with an
unrelated third Person and (b) the board of directors of
Americold has, by resolution, determined in good faith that such
business or transaction or series of related transactions meets
the criteria set forth in (a) above. This section, however, will
not prohibit any dividend or distribution permitted under
Section 4.06 set forth in Exhibit E hereto.
9.8 [SECTION OMITTED.]
9.9 AVAILABLE CASH FLOW TO PRO FORMA DEBT SERVICE RATIO.
Americold will not permit the ratio of (x) Available Cash Flow
plus Net Cash to (y) Pro Forma Debt Service for any period of
four consecutive fiscal quarters (taken as one accounting period)
to be less than 1.01:1.
9.10 [SECTION OMITTED.]
9.11 SENIOR DEBT TO NET WORTH RATIO. Americold will not
permit the ratio of (x) Consolidated Indebtedness less the aggre-
gate outstanding principal amount of Subordinated Debentures to
(y) Net Worth to exceed (at the end of any fiscal quarter or year
or at any other time U.S. Bank may designate for determining the
ratio) the ratios shown below during the periods shown below:
MAXIMUM
FISCAL YEAR ENDING: RATIO
February 29, 1996 5.10
February 28, 1997 5.05
February 28, 1998 4.85
February 28, 1999 4.55
9.12 [SECTION OMITTED.]
9.13 MODIFICATIONS OF INDEBTEDNESS AND CERTAIN OTHER AGREE-
MENTS, ETC. Americold will not, and will not permit any Subsidi-
ary to, amend, modify, or waive, or permit the amendment,
modification, or waiver of, any provision of the First Mortgage
Bonds or the Subordinated Debentures or any other Indebtedness or
of any agreement (including, without limitation, any purchase
agreement, indenture, loan agreement, guaranty, or security
agreement) relating to any of the foregoing, unless such amend-
ment or modification could not adversely affect the rights of
U.S. Bank, as determined in the sole discretion of U.S. Bank.
9.14 CONDUCT OF BUSINESS. Americold will not and will not
permit its Subsidiaries to engage (directly or indirectly) in any
business other than the business in which, or business which is
substantially related to the business in which, it or its
Subsidiaries are engaged as of the date of this Agreement.
ARTICLE 10
EVENTS OF DEFAULT
Upon the occurrence of any of the following specified
events (each an "Event of Default"):
10.1 PAYMENTS. Americold shall default (a) in the payment
when due of any principal of the Loans or (b) in the payment when
due of any interest on the Loans or any fees or any other amounts
owing hereunder and such default shall continue unremedied for
five or more Business Days; or
10.2 REPRESENTATIONS, ETC. Any material representation,
warranty, or statement made by Americold herein or in any other
Credit Document or in any certificate delivered pursuant hereto
or thereto shall prove to be untrue in any material respect on
the date as of which made or deemed made; or
10.3 COVENANTS. Americold shall default (a) in the due
performance or observance by it of any term, covenant, or
agreement contained in Section 8.1(f) (x) or in Article 9, or (b)
in the due performance or observance by it of any term, covenant,
or agreement (other than those referred to in Sections 10.1 and
10.2 and clause (a) of this Section 10.3) contained in this
Agreement and such default shall continue unremedied for a period
of 30 days after written notice to Americold by U.S. Bank; or
10.4 DEFAULT UNDER OTHER AGREEMENTS. Americold or any
Subsidiary shall default in any payment of principal of or inter-
est on any Indebtedness (other than the Note) in a principal (or
capitalized) amount of at least $5,000,000 beyond the period of
grace (not to exceed 30 days), if any, provided in the instrument
or agreement under which such Indebtedness was created or in the
observance or performance of any agreement or condition relating
to any such Indebtedness (other than a Lease Default or under the
Note) or contained in any instrument or agreement evidencing,
securing, or relating thereto, or any other event will occur or
condition exist, the effect of which default or other event or
condition is to cause, or to permit the holder or holders of such
Indebtedness (or a trustee or agent on behalf of such holder or
holders) to cause, with the giving of notice if required, any
such Indebtedness to become due prior to its stated maturity; or
10.5 BANKRUPTCY, ETC. Americold or any Subsidiary shall
commence a voluntary case concerning itself under the United
States Code entitled "Bankruptcy" as now or hereafter in effect,
or any successor thereto (the "Bankruptcy Code"); or any involun-
tary case is commenced against Americold or any Subsidiary, and
the petition is not controverted within 10 days, or is not
dismissed or stayed within 60 days, after commencement of the
case; or a custodian (as defined in the Bankruptcy Code) is
appointed for, or takes charge of, all or substantially all of
the property of Americold or any Subsidiary, or Americold or any
Subsidiary commences any other proceeding under any reorganiza-
tion, arrangement, adjustment of debt, relief of debtors, disso-
lution, insolvency, or liquidation, or similar law of any juris-
diction whether now or hereafter in effect relating to Americold
or any Subsidiary, or there is commenced against Americold or any
Subsidiary any such proceeding which remains undismissed or
unstayed for a period of 60 days, or Americold or any subsidiary
is adjudicated insolvent or bankrupt; or any order of relief or
other order approving any such case or proceeding is entered; or
Americold or any Subsidiary suffers any appointment of any
custodian or the like for it or any substantial part of its
property to continue undischarged or unstayed for a period of
60 days; or Americold or any Subsidiary makes a general
assignment for the benefit of creditors; or any corporate action
is taken by Americold or any Subsidiary for the purpose of
effecting any of the foregoing; or
10.6 ERISA. (a) A single-employer plan (as defined in
Section 4001 of ERISA) established by Americold or any Subsidiary
shall fail to maintain the minimum funding standard required by
Section 412 of the Code for any plan year or a waiver of such
standard or the extension of any amortization period is sought or
granted under Section 412(d) or (e) of the Code, or (b) a Plan is
or shall have been terminated or the subject of termination
proceedings under ERISA, or an event has occurred entitling the
PBGC to terminate the Plan under Section 4042 (a) of ERISA, or
(c) Americold, any Subsidiary, or an ERISA Affiliate has incurred
or is likely to incur a material liability to or on account of a
termination of or a withdrawal from a Plan or a Predecessor Plan
under Sections 4062, 4063, 4064, 4201, or 4204 of ERISA, and
(d) there shall result from any such event or events either
(i) the provision of security to induce the issuance of a waiver
or extension of any funding requirement under Section 412 or
(ii) liability or a material risk of incurring liability to the
PBGC or a Plan or a trustee appointed under Sections 4042 or 4049
of ERISA which could have a material adverse effect upon the
business, operations, condition (financial or otherwise), or
prospects of Americold or on Americold and its Subsidiaries taken
as a whole, or (e) there shall exist unfunded liabilities under
ERISA in excess of $5,000,000, or (f) there shall exist any
material Reportable Event under ERISA with respect to a plan
having unfunded liabilities in excess of $5,000,000; or
10.7 MORTGAGE AND SECURITY AGREEMENT. The Mortgage and the
Security Agreement shall cease to be in full force and effect in
any material respect (other than by reason of voluntary release
by U.S. Bank), or shall cease to give U.S. Bank the material
Liens, rights, powers, and privileges purported to be created
thereby (including, without limitation, a perfected security
interest in, and Lien on, all of the Collateral), in favor of
U.S. Bank, superior to and prior to the rights of all third
Persons (except title exceptions in the title policies provided
pursuant to Section 8.12) and subject to no other Liens, or
Americold shall default in the due performance or observance of
any term, covenant, or agreement on its part to be performed or
observed pursuant to the Mortgage and the Security Agreement and
such default shall continue beyond any grace or cure period
granted in such agreements; or
10.8 JUDGMENTS. One or more judgments or decrees shall be
entered against Americold or any Subsidiary involving in the
aggregate for Americold and the Subsidiaries a liability (not
paid or fully covered by insurance) of $2,500,000 or more and all
such judgments or decrees shall not have been vacated,
discharged, or stayed or bonded pending appeal within 60 days
from the entry thereof; or
10.9 CHANGE OF CONTROL. There shall occur a Change of
Control of Americold as defined in Exhibit E hereto.
Then, and in any such event, and at any time there-
after, if any Event of Default shall then be continuing, U.S.
Bank may, by written notice to Americold, take any or all of the
following actions, without prejudice to the rights of U.S. Bank
or the holder of the Note to enforce its claims against Americold
(provided, that, if an Event of Default specified in Section 10.5
will occur with respect to Americold, the result which would
occur upon the giving of written notice by U.S. Bank to Americold
as specified in clauses (a) and (b) below, will occur auto-
matically without the giving of any such notice): (a) declare the
Commitment terminated, whereupon the Commitment will forthwith
terminate immediately and any fee accrued pursuant to Article 4
of this Agreement will forthwith become due and payable without
any other notice of any kind; (b) declare the principal of and
any accrued interest in respect of all Loans, and all obligations
owing hereunder, to be, whereupon the same will become, forthwith
due and payable without presentment, demand, protest, or other
notice of any kind, all of which are hereby waived by Americold;
(c) cause U.S. Bank to exercise any rights or remedies under the
Mortgage and the Security Agreement; and (d) direct Americold to
pay (and Americold agrees that upon receipt of such notice it
will pay) to U.S. Bank such additional amount of cash, to be held
as security in the Cash Collateral Account established pursuant
to the Security Agreement, as is equal to the aggregate Stated
Amount of all Letters of Credit then outstanding.
ARTICLE 11
[SECTION OMITTED]
ARTICLE 12
MISCELLANEOUS
12.1 PAYMENT OF EXPENSES, ETC. Americold will: (a) whether
or not the transactions hereby contemplated are consummated, pay
on demand (i) all reasonable out-of-pocket costs and expenses of
U.S. Bank in connection with the preparation, execution, and
delivery of the Credit Documents and the documents and
instruments referred to therein and any amendment, waiver, or
consent relating thereto (including, without limitation, the
reasonable fees and disbursements of its counsel, Miller, Nash,
Wiener, Hager & Carlsen) and of U.S. Bank in connection with any
enforcement of the Credit Documents and the documents and
instruments referred to therein (including, without limitation,
the reasonable fees and disbursements of its counsel, whether at
trial or on appeal) and (ii) all reasonable costs and expenses of
U. S. Bank in connection with the Plan of Reorganization
(including, without limitation, reasonable fees and disbursements
for services of members of its Special Assets Group and the
reasonable fees and disbursements of its counsel, Miller, Nash,
Wiener, Hager & Carlsen), provided that sums to be paid pursuant
to this clause (ii) shall not exceed $25,000; (b) pay on demand
and hold U.S. Bank harmless from and against any and all present
and future stamp and other similar taxes with respect to the
foregoing matters and save U.S. Bank harmless from and against
any and all liabilities with respect to or resulting from any
delay or omission (other than to the extent attributable to U.S.
Bank) to pay such taxes; and (c) indemnify U.S. Bank, its
officers, directors, employees, affiliates, representatives, and
agents from and hold each of them harmless against and pay on
demand any and all losses, liabilities, claims, damages, or
expenses incurred by any of them as a result of, or arising out
of, or in any way related to, or by reason of any investigation,
litigation (whether at trial or on appeal), or other proceeding
related to, Americold' s entering into and performance of any
Credit Document, including, without limitation, the reasonable
fees and disbursements of counsel incurred in connection with any
such investigation, litigation (whether at trial or on appeal),
or other proceeding (but excluding any such losses, liabilities,
claims, damages, or expenses to the extent incurred by reason of
the gross negligence or willful misconduct of the Person to be
indemnified).
12.2 RIGHT OF SETOFF. In addition to any rights now or
hereafter granted under applicable law or otherwise and not by
way of limitation of any such rights, upon the occurrence of an
Event of Default, U.S. Bank is hereby authorized at any time or
from time to time, without presentment, demand, protest, or other
notice of any kind to Americold or to any other Person, any such
notice being hereby expressly waived, to set off and to appro-
priate and apply any and all deposits (general or special) and
any other indebtedness at any time held or owing by U.S. Bank to
or for the credit or the account of Americold against and on
account of the Obligations and liabilities of Americold to U.S.
Bank under this Agreement or under any of the other Credit
Documents, and all other claims of any nature or description
arising out of or connected with this Agreement or any other
Credit Document, irrespective of whether or not U.S. Bank will
have made any demand hereunder and although said Obligations,
liabilities, or claims, or any of them, will be contingent or
unmatured.
12.3 NOTICES. Except as otherwise specified herein, all
notices, requests, demands, or other communications to or upon
the respective parties hereto will be deemed to have been duly
given or made when delivered to the party to which such notice,
request, demand, or other communication is required or permitted
to be given or made under this Agreement or the Note, addressed
to such party at its address set forth on the first page of this
Agreement, or as set forth opposite its signature below, or at
such other address as any of the parties hereto may hereafter
notify the others in writing.
12.4 BENEFIT OF AGREEMENT.
(a) This Agreement will be binding upon and inure to
the benefit of and be enforceable by the respective successors
and assigns of the parties hereto; provided, however, Americold
may not assign or transfer any of its interests hereunder without
the prior written consent of U.S. Bank.
(b) U.S. Bank may at any time enter into participation
agreements with one or more participating lenders whereby U.S.
Bank will allocate certain percentages of the Commitment to these
lenders; provided that Americold will continue to deal with and
report solely to U.S. Bank, as agent for any participating
lenders. Americold hereby grants to each participating lender,
to the extent of its participation in the Loans or Letters of
Credit issued hereunder, the right to set off deposit accounts
maintained by Americold and its Subsidiaries with such lender.
U.S. Bank may assign to one or more financial institutions
reasonably acceptable to Americold all or any part of Loans,
Letters of Credit issued hereunder, and the Commitment, and to
the extent of such assignment (unless otherwise stated therein),
the assignee of such assignment shall, to the fullest extent
permitted by law, have the same rights and benefits under the
Credit Documents as it would have if it were U.S. Bank hereunder.
12.5 NO WAIVER; REMEDIES CUMULATIVE. No failure or delay
on the part of U.S. Bank or any holder of a Note in exercising
any right, power, or privilege hereunder or under any other
Credit Document and no course of dealing between Americold and
U.S. Bank or the holder of the Note will operate as a waiver
thereof; nor will any single or partial exercise of any right,
power, or privilege hereunder or under any other Credit Document
preclude any other or further exercise thereof or the exercise of
any other right, power, or privilege hereunder or thereunder.
The rights and remedies herein expressly provided are cumulative
and not exclusive of any rights or remedies which U.S. Bank or
the holder of the Note would otherwise have. No notice to or
demand on Americold in any case will entitle Americold to any
other or further notice or demand in similar or other
circumstances or constitute a waiver of the rights of U.S. Bank
or the holder of the Note to any other or further action in any
circumstances without notice or demand.
12.6 [SECTION OMITTED.]
12.7 CALCULATIONS; COMPUTATIONS. The financial statements
to be furnished to U.S. Bank pursuant hereto will be made and
prepared in accordance with generally accepted accounting
principles consistently applied throughout the period involved
(except as set forth in the notes thereto or as otherwise
disclosed in writing by Americold to U.S. Bank).
12.8 GOVERNING LAW; SUBMISSION TO JURISDICTION;
ARBITRATION.
(a) This Agreement and the rights and obligations of
the parties hereunder and under the Note will be construed in
accordance with and be governed by the laws of the state of
Oregon.
(b) Any legal action or proceeding with respect to
this Agreement or any other Credit Document may be brought in the
courts of Oregon or of the United States of America for the
District of Oregon, and by execution and delivery of this Agree-
ment, Americold hereby accepts for itself and in respect of its
property, generally and unconditionally, the jurisdiction of the
aforesaid courts. Americold irrevocably consents to the service
of process out of any of the aforementioned courts in any such
action or proceeding by the mailing of copies thereof by regis-
tered or certified mail, postage prepaid, to Americold at its
address set forth on page 1 of this Agreement, such service to
become effective three days after such mailing. Nothing herein
will affect the right of U.S. Bank or any holder of the Note to
serve process in any other manner permitted by law or to commence
legal proceedings or otherwise proceed against Americold in any
other jurisdiction.
(c) Either U.S. Bank or Americold may require that all
disputes, claims, counterclaims, and defenses ("Claims") relating
in any way to the Credit Documents be settled by binding arbitra-
tion in accordance with the Commercial Arbitration Rules of the
American Arbitration Association and Title 9 of the U.S. Code,
but need not be conducted under the auspices of the American
Arbitration Association. All Claims will be subject to the
statutes of limitation applicable as if they were litigated.
This provision is void if the effect of the arbitration procedure
(as opposed to any Claims of Americold) would be to materially
impair U.S. Bank's ability to realize on any Collateral securing
the Obligations. If arbitration occurs, and each party's claim
is less than $100,000, one neutral arbitrator will decide all
issues; if any party's claim is $100,000 or more, three neutral
arbitrators will decide all issues. All arbitrators will be
active Oregon State Bar members in good standing. All arbitra-
tion hearings will be held in Portland, Oregon. In addition to
all other powers, the arbitrator(s) shall have the exclusive
right to determine all issues of arbitrability. Judgment on any
arbitration award may be entered in any court with jurisdiction.
If either party institutes any judicial proceeding relating to
this Agreement, such action shall not be a waiver of the right to
submit any claim to arbitration. In addition, each has the right
before, during, and after any arbitration to exercise any number
of the following remedies, in any order or concurrently:
(i) setoff; (ii) self-help repossession; (iii) judicial or
nonjudicial foreclosure against real or personal property
collateral; and (iv) provisional remedies, including injunction,
appointment of receiver, attachment, claim and delivery, and
replevin.
12.9 COUNTERPARTS. This Agreement may be executed in any
number of counterparts and by the different parties hereto on
separate counterparts, each of which when so executed and
delivered will be an original, but all of which will together
constitute one and the same instrument. A complete set of
counterparts will be lodged with Americold and U.S. Bank.
12.10 HEADINGS DESCRIPTIVE. The headings of the several
sections and subsections of this Agreement are inserted for
convenience only and will not in any way affect the meaning or
construction of any provision of this Agreement.
12.11 AMENDMENT OR WAIVER. None of the Credit Documents or
any terms thereof may be changed, waived, discharged, or termi-
nated unless such change, waiver, discharge, or termination is in
writing signed by U.S. Bank.
12.12 SURVIVAL. All indemnities set forth herein
including, without limitation, in Sections 2.10, 2.11, 3.5, and
12.1 will survive the execution and delivery of this Agreement
and the Note and the making and repayment of the Loans.
12.13 AMENDMENT AND RESTATEMENT. This Agreement is
executed for the purpose of amending and restating the Credit
Agreement between U.S. Bank and Americold dated February 3, 1993,
as previously amended, and will become effective when the
conditions set forth in Section 6.1 have been satisfied.
12.14 DISCLOSURE. UNDER OREGON LAW, MOST AGREEMENTS,
PROMISES, AND COMMITMENTS MADE BY A BANK AFTER OCTOBER 3, 1989,
CONCERNING LOANS AND OTHER CREDIT EXTENSIONS WHICH ARE NOT FOR
PERSONAL, FAMILY, OR HOUSEHOLD PURPOSES OR SECURED SOLELY BY THE
BORROWER'S RESIDENCE MUST BE IN WRITING, EXPRESS CONSIDERATION
AND BE SIGNED BY THE BANK TO BE ENFORCEABLE.
IN WITNESS WHEREOF, the parties hereto have caused
their duly authorized officers to execute and deliver this
Agreement as of the date first above written.
UNITED STATES NATIONAL
AMERICOLD CORPORATION BANK OF OREGON
By /s/ Lon V. Leneve By /s/ Janet Jordan
------------------------------ --------------------------
Title V.P. & Treasurer Title Vice President
-------------------------- -----------------------
<PAGE>
EXHIBIT A
PROMISSORY NOTE
$27,500,000.00 Portland, Oregon
June 30, 1995
FOR VALUE RECEIVED, AMERICOLD CORPORATION, an Oregon
corporation ("Americold"), hereby promises to pay to the order of
UNITED STATES NATIONAL BANK OF OREGON (the "Bank"), in lawful
money of the United States of America in immediately available
funds, at 555 S.W. Oak Street, Portland, Oregon 97204, or such
other office of the Bank as the Bank may designate, on
February 28, 1999, the principal sum of TWENTY SEVEN MILLION FIVE
HUNDRED THOUSAND AND NO/100 DOLLARS, or, if less, the unpaid
principal amount of all Loans (including payments or
disbursements under any Letters of Credit which become Loans)
made by the Bank pursuant to a Second Amended and Restated Credit
Agreement dated as of June 19, 1995, between Americold and the
Bank (as from time to time in effect, the "Credit Agreement").
Americold promises also to pay interest on the unpaid
principal amount hereof in like money at Bank's office from the
date of any Loans or payments or disbursements under any Letter
of Credit until paid at the rates and at the times provided in
the Credit Agreement.
This note is issued in connection with the amendment
and restatement of a loan facility dating back to July 2, 1987,
is the note referred to in the Credit Agreement, and is entitled
to the benefits thereof and of the Security Agreement and the
Mortgage. This note is subject to voluntary prepayment, in whole
or in part, on the terms and conditions set forth in the Credit
Agreement.
In case an Event of Default shall occur and be
continuing, the principal balance of and accrued interest on this
note may be declared to be due and payable in the manner and with
the effect provided in the Credit Agreement.
Capitalized terms not defined in this note shall have
the respective meanings ascribed thereto in the Credit Agreement.
This note shall be construed in accordance with and be governed
by the laws of the state of Oregon.
Americold hereby waives presentment, demand, protest,
or notice of any kind in connection with this note.
80110-2091/06/15/95 -1- XBA02C61
Americold acknowledges notice of certain prepayment
restrictions in the Credit Agreement.
STATUTORY NOTICE: UNDER OREGON LAW, MOST AGREEMENTS,
PROMISES, AND COMMITMENTS MADE BY LENDER AFTER
OCTOBER 3, 1989, CONCERNING LOANS AND OTHER CREDIT
EXTENSIONS WHICH ARE NOT FOR PERSONAL, FAMILY, OR
HOUSEHOLD PURPOSES OR SECURED SOLELY BY THE BORROWER'S
RESIDENCE MUST BE IN WRITING, EXPRESS CONSIDERATION,
AND BE SIGNED BY LENDER TO BE ENFORCEABLE.
AMERICOLD CORPORATION
By: _______________________________
Lon V. Leneve
Vice President and Treasurer
80110-2091/06/15/95 -2- XBA02C61
<PAGE>
EXHIBIT C
_________________________________________________________________
U.S. BANK Borrower's Certificate -
Accounts Receivable and Inventory
_________________________________________________________________
Certificate No. ________ Dated as of _____________
COLLATERAL ACTIVITY
Accounts Receivable
1. Beginning Total Accounts (forward from line 6
of last certificate) $________
2. Less: Accounts Collected per attached report,
from __________ thru __________ -________
3. Less: Other decreases__________________________ -________
4. Plus: New Sales per attached report, from ________
thru ____________ +________
5. Plus: Other increases__________________________ +________
6. Ending Total Accounts $________
7. Less: Ineligible accounts, as of ____________ -________
8. Eligible Accounts (line 6 minus line 7) $________
Inventory
9. Total Inventory Value: as of ____________ $________
10. Adjustments (if applicable) - Describe:_______
____________________________________________ +/-______
11. Eligible Inventory (line 9 minus line 10) $________
LOAN ACTIVITY
12. Borrowing Base-Accounts: ___% of
line 8 $__________
13. Borrowing Base-Inventory: Lesser
of: ___% of line 11, or Inventory
Credit Limit of $_______ + __________
14. Total BORROWING BASE: Lesser of:
sum of line 12 plus line 13, or; Credit
Line Limit of $_______ $_________
15. Less: (if applicable) - Describe:_____________
_____________________________________________ - ________
16. NET BORROWING BASE (line 14 minus 15) $_________
17. Beginning Loan Balance (forward from last
certificate), as of ____________ $__________
18. Less: Account Collections applied
to loan - _________
19. Less: Other funds applied to loan - _________
20. PLUS: NEW ADVANCE REQUESTED + _________
21. New Loan Balance (line 17 minus
lines 18 and 19; plus line 20) as
of ____________ $__________
22. Excess Borrowing Base (line 16 minus line 21) $_________
Borrower hereby submits this report pursuant to the security
agreement or other agreement ("Agreement") held by Bank.
Borrower certifies that this certificate and accompanying
documents are true, complete and correct. In so certifying,
Borrower warrants that all "Eligible Accounts" and "Eligible
Inventory" shown above represent only such accounts and inventory
as may be included in the Borrowing Base pursuant to the
Agreement. Borrower warrants it is not in default under the
Agreement.
Borrower Authorized Signer:
x_____________________________
Date Title
<PAGE>
Addendum to Borrower's Certificate Number: _______
_________________________________________________________________
U.S. BANK Borrower's Certificate -
Letters of Credit
_________________________________________________________________
Letter of Credit Activity
1. Letter of Credit Limitation $_________
2. Beginning Total Letters of Credit (forward from
line 5 of last certificate) $_________
3. Less: Letters of Credit Closed per attached
report, from __________ thru __________ - ________
4. Plus: New Letters of Credit per attached report,
from __________ thru __________ + ________
5. Ending Total Letters of Credit (not to exceed
line 1 above) $_________
6. Excess Letter of Credit Margin (difference of
lines 1 and 5) $_________
_________________________________________________________________
RECAP OF LIMITS AND COLLATERAL MARGINS OVER OUTSTANDINGS
Excess of Limits Over Outstandings:
- -----------------------------------
Loan Limit $
Less Outstanding Loans $ _______
Excess of Limit Over Loans $_______
Letter of Credit Limit $
Less Outstanding Letters of Credit $________
Excess Letter of Credit Limit $_______
Combined Excess of Limits Over Outstandings $_________
Excess of Collateral Margin Over Outstandings:
- ----------------------------------------------
Borrowing Base - Loans (line 12 under
Loan Activity) $
Less Outstanding Loans $_______
Excess of Borrowing Base Over Loans $_______
Letter of Credit Limit $
Less Outstanding Letters of Credit $_______
Excess Letter of Credit Limit $_______
Combined Excess of Borrowing Base Over Outstandings $_________
<PAGE>
EXHIBIT D
Permitted Filings
1. Filings reflected in Exhibit E to Credit Agreement dated
February 3, 1993.
2. Filings reflected in Unisearch Search Report No. 80110-2091
dated June 12, 1995, a copy of which is attached.
3. Filings in favor of Shawmut Bank Connecticut, National
Association (or its successor) in connection with Amended
and Restated Indenture dated March 9, 1993, as it may be
amended, supplemented or restated from time to time, with
respect to Americold's First Mortgage Bonds.
4. Filings in connection with financing secured primarily by
real property of Americold.
5. Filings evidencing lease transactions.
6. Filings evidencing purchase money security interests in
tangible personal property or fixtures.
7. Other filings subordinate to the filings and liens of United
States National Bank of Oregon which do not cover the
Collateral.
<PAGE>
Unisearch Search Report
RE: AMERICOLD CORPORATION Jurisdiction: OREGON Date: 6/12/95
AMERICOLD SERVICES SECRETARY OF STATE Reference
CORPORATION Number:
80110-2091
* UCC Financing Statements - SEE ATTACHED Through:
LISTING AND COPIES 5/24/95
* Tax Liens - NO FINDINGS Through:
5/24/95
* Judgements - Through:
* Pending Suits - Through:
* Other - Through:
* Copies - Through:
Prepared by: DEBORAH BROUSE Account #: 1191
THANK YOU !!!
_________________________________________________________________
* The responsibility for maintaining public records rests with
the filing officer, and Unisearch, Inc. will accept no
liability beyond the exercise of reasonable care.
Page 1
<PAGE>
List Debtor Information Uniform Commercial Code (UCC)
Certified Thru: 05/24/1995
N84700 AMERICOLD CORP
DOF: 04/02/1990 Exp: 04/02/1995 File is Expired Info is Verified
P67394 AMERICOLD CORP
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<PAGE>
Display Debtor Filing Information Uniform Commercial Code (UCC)
UCC1 #R42467 This Information is Verified Filing status is Active
Reel and Loc: 871-1908 This Debtor Filed on: 02/08/1993 10:03 am
Debtor Name and Address:
AMERICOLD SERVICES CORPORATION
7007 SW CARDINAL LANE SUITE 135
PORTLAND OR 97224 More Addresses? N
Reel and Loc: 871-1908 Original File Date: 02/08/1993 10:03 am
(#Copies) 4 +(#3's) 0 = 4 Expiration Date: 02/08/1998
Addl Sec Party Info?: N IRS Expiration Date:
Secured Party Name and Address Assignee Name and Address
US NATIONAL BANK CORPORATE BANK DIVBB-1
309 SW SIXTH AVE
PORTLAND OR 97204
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<PAGE>
EXHIBIT E
INDENTURE PROVISIONS
CHANGE OF CONTROL: The term "Change of Control" means
the occurrence of any of the following events:
(i) prior to the earlier to occur of (A) the first
public offering (which, for purposes of this definition,
shall mean the sale of shares of common stock of the
relevant entity pursuant to an effective registration
statement under the Securities Act that covers (together
with any such prior effective registrations) not less than
25% of the outstanding shares of common stock of such entity
on a fully diluted basis after giving effect to all such
registrations) of common stock of Parent or (B) the first
public offering of common stock of the Issuer, the Permitted
Holders cease to be the "beneficial owner" (as defined in
Rules 13d-3 and 13d-5 under the Exchange Act, except that a
Person shall be deemed to have beneficial ownership of all
shares that any such Person has the right to acquire,
whether Such right is exercisable immediately or only after
the passage of time), directly or indirectly, of a majority
in the aggregate of the total voting power of the Voting
Stock of the Issuer, whether as a result of issuance of
securities of the Issuer, any merger, consolidation,
liquidation or dissolution of the Issuer, any direct or
indirect transfer of securities by Parent or otherwise (for
purposes of this clause (i) and clause (ii) below, the
Permitted Holders shall be deemed to beneficially own any
Voting Stock of a corporation (the "specified corporation")
held by any other corporation (the "parent corporation") so
long as the Permitted Holders beneficially own (as so
defined), directly or indirectly, in the aggregate a
majority of the voting power of the Voting Stock of the
parent corporation);
(ii) any "Person" (as such term is used in Sections
13(d) and 14(d) of the Exchange Act), other than one or more
permitted Holders, is or becomes the beneficial owner (as
defined in clause (i) above), directly or indirectly, of
more than 30% of the total voting power of the Voting Stock
of the Issuer; PROVIDED, HOWEVER, that the Permitted Holders
beneficially own (as so defined), directly or indirectly, in
the aggregate a lesser percentage of the total voting power
of the Voting Stock of the Issuer than such other Person and
do not have the right or ability by voting power, contract
or otherwise to elect or designate for election a majority
of the Board of Directors of the Issuer (for the purposes of
this clause (ii), such other Person shall he deemed to
beneficially own any Voting Stock of a specified corporation
held by a parent corporation, if such other Person
"beneficially owns" (as so defined), directly or indirectly,
more than 30% of the voting power of the Voting Stock of
such parent corporation and the Permitted Holders
"beneficially own" (as so defined), directly or indirectly,
in the aggregate a lesser percentage of the voting power of
the Voting Stock of such parent corporation and do not have
the right or ability by voting power, contract or otherwise
to elect or designate for election a majority of the Board
of Directors of such parent corporation);
(iii) during any period of two consecutive years,
individuals who at the beginning of such period constituted
the Board of Directors of the Issuer (together with any new
directors whose election by such Board of Directors or whose
nomination for election by the shareholders of the Issuer
was approved by a vote of 66 2/3% of the directors of the
Issuer then still in office who were either directors at the
beginning of such period or whose election or nomination for
election was previously so approved) cease for any reason to
constitute a majority of the Board of Directors of the
Issuer then in office; or
(iv) the Issuer consolidates with or merges with or
into any other Person or conveys, transfers or leases all or
substantially all of its assets to any Person or any Person
consolidates with or merges into the Issuer, in either event
pursuant to a transaction in which either (A) the
outstanding Voting Stock of the Issuer is changed into or
exchanged for Cash, securities or other property (excluding,
however, any such transaction where the outstanding Voting
Stock of the Issuer is changed into or exchanged for Voting
Stock of the surviving or transferee corporation which is
neither Redeemable Stock nor Exchangeable Stock) or (B) the
holders of the Voting Stock of the Issuer immediately prior
to such transaction, together with Kelso & Company and
affiliates of Kelso & Company controlled by or under common
control with Kelso & Company, own, directly or indirectly in
the aggregate, less than 70% of the Voting Stock of the
surviving Person immediately after such transaction.
SECTION 4.06. LIMITATION ON RESTRICTED PAYMENTS. (a)
The Issuer shall not, and shall not permit any subsidiary,
directly or indirectly, to (i) declare or pay any dividend or
make any distribution on or in respect of its Capital Stock
(including any distribution in connection with any merger or
consolidation involving the Issuer) or to the direct or indirect
holders of its Capital Stock (except dividends or distributions
payable solely in its Non-Convertible Capital Stock or in
options, warrants or other rights to purchase its Non-Convertible
Capital Stock and except dividends or distributions payable to
the Issuer or a subsidiary), (ii) purchase, redeem or otherwise
acquire or retire for value any Capital Stock of the Issuer or of
any direct or indirect Parent of the Issuer, (iii) purchase,
repurchase, redeem, defease or otherwise acquire or retire for
value, prior to scheduled maturity, scheduled repayment or
scheduled sinking fund payment any Subordinated Obligations
(other than the purchase, repurchase or other acquisition of
Subordinated Obligations purchased in anticipation of and used
for satisfying a sinking fund obligation, principal installment
or final maturity, in each case due within one year of the date
of acquisition) or (iv) make any Investment in any Affiliate of
the Issuer, other than a Subsidiary that is not a Non-Recourse
Subsidiary or a Person which will become a Subsidiary that is not
a Non-Recourse Subsidiary as a result of any such Investment (any
such dividend, distribution, purchase, redemption, repurchase,
defeasance, other acquisition, retirement or Investment being
hereinafter referred to as a "Restricted Payment") if at the time
the Issuer or such Subsidiary makes such Restricted Payment:
(1) a Default shall have occurred and be continuing
(or would result therefrom);
(2) the Issuer is not able to issue $1.00 of
additional Debt in accordance with the provisions of Section
4.09 (a); or
(3) the aggregate amount of such Restricted Payment
and all other Restricted Payments since the date on which
the Series B Securities were originally issued would exceed
the sum of:
(A) 50% of the Consolidated Net Income accrued
during the period (treated as one accounting period)
from December 1, 1992, to the end of the most recent
fiscal quarter ending at least 45 days prior to the
date of such Restricted Payment (or, in case such
consolidated Net Income shall be a deficit minus 100%
of such deficit) and minus 100% of the amount of any
write-downs, write-offs, other negative revaluations
and other negative extraordinary charges not otherwise
reflected in Consolidated Net Income during such
period;
(B) the aggregate Net Cash Proceeds received by
the Issuer from the issuance or sale of its Capital
Stock (other than Redeemable Stock or Exchangeable
Stock) subsequent to the date on which the Series B
Securities were originally issued (other than an
issuance or sale to a Subsidiary or an employee stock
ownership plan);
(C) the aggregate Net Cash Proceeds received by
the Issuer from the issuance or sale of its Capital
Stock (other than Redeemable Stock or Exchangeable
Stock) to an employee stock ownership plan subsequent
to May 31, 1992, but (if such employee stock ownership
plan incurs any Debt) only to the extent that any such
proceeds are equal to any increase in the Consolidated
Net Worth of the Issuer resulting from principal
repayments made by such employee stock ownership plan
with respect to Debt incurred by it to finance the
purchase of such Capital Stock; and
(D) the amount by which Debt of the Issuer is
reduced on the Issuer's balance sheet upon the
conversion or exchange (other than by a Subsidiary)
subsequent to the date on which the Series B
Securities were originally issued of any Debt of the
Issuer convertible or exchangeable for Capital Stock
(other than Redeemable Stock or Exchangeable Stock) of
the Issuer (less the amount of any Cash, or other
property, distributed by the Issuer upon such
conversion or exchange).
(b) The provisions of Section 4.06(a) shall not
prohibit:
(i) any purchase or redemption of Capital Stock or
Subordinated Obligations of the Issuer made by exchange for,
or out of the proceeds of the substantially concurrent sale
of, Capital Stock of the Issuer (other than Redeemable Stock
or Exchangeable Stock and other than Capital Stock issued or
sold to a Subsidiary or an employee stock ownership plan);
PROVIDED, HOWEVER that (A) such purchase or redemption shall
be excluded in the calculation of the amount of Restricted
Payments made since the date on which the Series B
Securities were originally issued and (B) the Net Cash
Proceeds from such sale shall be excluded from clauses
(3)(b) and (3)(c) of Section 4.06(a);
(ii) any purchase or redemption of Subordinated
Obligations of the Issuer made by exchange for, or out of
the proceeds of the substantially concurrent sale of, Debt
of the Issuer; PROVIDED, HOWEVER, that such purchase or
redemption shall be excluded in the calculation of the
amount of Restricted Payments made since the date on which
the Series B Securities were originally issued;
(iii) any purchase or redemption of Subordinated
Obligations from Net Available Cash to the extent permitted
by Section 4.12; PROVIDED, HOWEVER, that such purchase or
redemption shall be excluded in the calculation of the
amount of Restricted Payments made since the date on which
the Series B Securities were originally issued;
(iv) dividends paid within 60 days after the date of
declaration thereof if at such date of declaration such
dividends would have complied with this Section; PROVIDED,
HOWEVER, that at the time of payment of such dividends, no
other Default shall have occurred and be continuing (or
result therefrom); PROVIDED, FURTHER, HOWEVER, that such
dividends shall be included in the calculation of the amount
of Restricted Payments made since the date on which the
Series B Securities were originally issued;
(v) any repurchase of Capital Stock of the Issuer
after January 1, 1993 pursuant to the terms of the
Stockholders' Agreement from officers and employees (or
their estates) of the Issuer or its Subsidiaries upon death,
disability or termination of employment of such officers and
employees; PROVIDED, HOWEVER, that (A) the aggregate amount
of all such repurchases (excluding repurchases made with
proceeds of life insurance policies maintained by the Issuer
on such employees or officers) in any fiscal year shall not
exceed $500,000; (B) to the extent that the aggregate amount
of such repurchases (excluding repurchases made with
proceeds of life insurance policies maintained by the Issuer
on such employees or officers) in any fiscal year is less
than $500,000, the difference between $500,000 and such
amount may be carried forward and applied to repurchases in
subsequent fiscal years; and (C) all such repurchases shall
be included in the calculation of the amount of Restricted
Payments made since the date on which the Series B
Securities were originally issued;
(vi) Cash dividends paid after January l, 1993 with
respect to the ESOP Preferred Stock; PROVIDED, HOWEVER, that
(A) the aggregate amount of all such dividends paid in any
fiscal year shall not exceed $500,000; (B) to the extent
that the aggregate amount of such dividends paid in any
fiscal year is less than $500,000, the difference between
$500,000 and such amount may be carried forward and applied
to the payment of such dividends in subsequent fiscal years;
and (C) all such dividends shall be included in the
calculation of the amount of Restricted Payments made since
the date on which the Series B Securities were originally
issued;
(vii) Investments in Non-Recourse Subsidiaries, not
to exceed $5,000,000 in the aggregate during the term of
this Indenture; PROVIDED, HOWEVER, that all such Investments
shall be excluded in the calculation of the amount of
Restricted Payments made since the date on which the Series
B Securities were originally issued; or
(viii) Restricted Payments not to exceed $5,000,000
in the aggregate during the term of this Indenture;
PROVIDED, HOWEVER, that all such Restricted Payments shall
be included in the calculation of the amount of Restricted
Payments made since the date on which the Series B
Securities were originally issued.
SECTION 4.12. LIMITATION ON SALES OF ASSETS AND
SUBSIDIARY STOCK. (a) The Issuer shall not, and shall not
permit any Subsidiary to, make any Asset Disposition unless (i)
the Issuer or such Subsidiary receives consideration at the time
of such Asset Disposition at least equal to the fair market
value, as determined in good faith by the Board of Directors
(including a determination as to the value of all non-Cash
consideration), of the shares and assets subject to such Asset
Disposition (or the option price applicable on the date on which
the option is exercised as specified in the purchase options with
respect to the Brooks, Oregon and Watsonville, California
Mortgaged Properties and the purchase options with respect to the
Issuer's Tomah, Wisconsin facility (if such facility becomes a
Mortgaged Property) described in Sections 3.01(e)(ii) and 3.01(g)
in effect as of the date of this Indenture) and at least 90% of
the consideration therefor received by the Issuer or such
Subsidiary is in the form of Cash or Cash equivalents and (ii) an
amount equal to 1OO% of the Net Available Cash from such Asset
Disposition is applied by the Issuer (or such subsidiary, as the
case may be) (A) FIRST, to the extent the Issuer elects (or is
required by the terms of any Senior Debt), to redeem, prepay,
repay or purchase Senior Debt (other than the Securities) or Debt
of a Wholly Owned Subsidiary to the extent the asset disposed of
was previously held by such Wholly Owned Subsidiary (in each case
other than Debt owed to the Issuer or an Affiliate of the Issuer)
within 60 days from the later of the date of such Asset
Disposition or the receipt of such Net Available Cash; (b)
SECOND, to the extent of the balance of such Net Available Cash
after application in accordance with clause (A), to make an Offer
(as defined below) to purchase Securities pursuant to and subject
to the conditions of Section 4.12(b) and to effect any Offer
accepted, and (C) THIRD, to the extent of the balance of such Net
Available Cash after application in accordance with clauses (A)
and (B), to (x) the acquisition by the Issuer or any Wholly Owned
Subsidiary of Tangible Property or (y) the redemption,
prepayment, repayment or purchase of Debt (other than any
Redeemable Stock or Exchangeable Stock) of the Issuer or Debt of
any Subsidiary (other than Debt owed to the Issuer or an
Affiliate of the Issuer), in each case within one year from the
later of the receipt of such Net Available Cash and the date the
Offer described in Section 4.12(b) is consummated; PROVIDED,
HOWEVER, that in connection with any redemption, prepayment,
repayment or purchase of Debt pursuant to clause (A) or (C)
above, the Issuer shall cause the related loan commitment (if
any) to be permanently reduced in an amount equal to the
principal amount so redeemed, prepaid, repaid or purchased.
Notwithstanding the foregoing provisions of this Section but
subject to any provisions of the Investment Agreement regarding
the application of Net Available Cash (as defined in the
Investment Agreement), the Issuer and its subsidiaries shall only
be required to apply Net Available Cash in accordance with this
Section to the extent that the aggregate Net Available Cash from
all Asset Dispositions exceeds $25,000,000. Pending application
of Net Available Cash pursuant to this Section, such Net
Available Cash shall be invested in Permitted Investments.
(b) Subject to Section 4.12(E), to the extent that
there is Net Available Cash from an Asset Disposition remaining
after any elected or required payment of Senior Debt (other than
the Securities) or Debt of a Wholly Owned Subsidiary as described
in Section 4.12(a)(ii)(A), the Issuer will be required to
purchase Securities tendered pursuant to an offer by the Issuer
for the Securities (the "Offer") at a purchase price determined
in accordance with Section 3.01(j), in the case of Series A
Securities, and at a purchase price of 100% of their principal
amount plus accrued interest to the Purchase Date, in the case of
the Series B Securities (subject, in each case, to the right of
Holders of record on the relevant date to receive interest due on
the relevant interest Payment Date), in accordance with the
procedures (including prorating in the event of oversubscription)
set forth in Section 4.12(c). If the aggregate purchase price of
Securities tendered pursuant to the Offer is less than the Net
Available Cash allotted to the purchase of the Securities, the
Issuer shall apply the remaining Net Available Cash in accordance
with Section 4.12 (a)(ii)(C). The Issuer shall not be required
to make an Offer for Securities pursuant to this Section if the
Net Available Cash available therefor (after application of
proceeds as provided in Section 4.12(a)(ii)(A)) is less than
$5,000,000 for any particular Asset Disposition (which lesser
amounts (1) shall not be carried forward for purposes of
determining whether an Offer is required with respect to the Net
Available Cash from any subsequent Asset Disposition and (2)
shall be applied as provided in Section 4.12(a)(ii)(C)).
(c) (1) Subject to Section 4.12(e), promptly, and in
any event within 90 days after the later of the date of each
Asset Disposition as to which the Issuer must apply Net Available
Cash in accordance with Section 4.12(a)(ii) or the receipt of Net
Available Cash therefrom, the Issuer shall be obligated to
deliver to the Trustee and send, by first-class mail to each
Holder, a written notice stating that the Holder may elect to
have his Securities purchased by the Issuer either in whole or in
part (subject to prorationing as hereinafter described in the
event the Offer is oversubscribed) in integral multiples of
$1,000 of principal amount, at the applicable purchase price
specified in Section 4.12(b). The notice containing an Offer
shall specify a purchase date not less than 30 days nor more than
60 days after the date of such notice (the "Purchase Date") and
shall contain information concerning the business of the Issuer
which the Issuer in good faith believes will enable such Holders
to make an informed decision (which at a minimum will include (i)
the most recently filed Annual Report on Form 10-K (including
audited consolidated financial statements) of the Issuer, the
most recent subsequently filed Quarterly Report on Form 10-Q and
any Current Report on Form 8-K of the Issuer filed subsequent to
such Quarterly Report, other than Current Reports describing
Asset Dispositions otherwise described in the offering materials
(or corresponding successor reports), or if the Issuer becomes no
longer subject to the Exchange Act, equivalent information, (ii)
a description of material developments in the Issuer's business
subsequent to the date of the latest of such Reports, and (iii)
if material, appropriate pro forma financial information) and all
instructions and materials necessary to tender securities
pursuant to the Offer, together with the information contained in
clause (3).
(2) Not later than the date upon which written notice
of an Offer is delivered to the Trustee as provided below, the
Issuer shall deliver to the Trustee an Officers' Certificate as
to (i) the amount of the Offer (the "Offer Amount"), (ii) the
allocation of the Net Available Cash from the Asset Dispositions
pursuant to which such Offer is being made and (iii) the
compliance of such allocation with the provisions of Section
4.12(a). On such date, the Issuer shall also irrevocably deposit
with the Trustee or with a paying agent (or, if the Issuer is
acting as its own paying agent, segregate and hold in trust) in
immediately available funds an amount equal to the Offer Amount
to be held for payment in accordance with the provisions of this
Section. Upon the expiration of the period for which the Offer
remains open (the "Offer Period"), the Issuer shall deliver to
the Trustee the Securities or portions thereof which have been
properly tendered to and are to be accepted by the Issuer. The
Trustee shall, on the Purchase Date, mail or deliver payment to
each tendering Holder in the amount of the purchase price. In
the event that the aggregate purchase price of the Securities
delivered by the Issuer to the Trustee is less than the Offer
Amount, the Trustee shall deliver the excess to the Issuer
immediately after the expiration of the Offer Period.
(3) Holders electing to have a Security purchased will
be required to surrender the Security, with an appropriate form
duly completed, to the Issuer at the address specified in the
notice at least ten Business Days prior to the Purchase Date.
Holders will be entitled to withdraw their election if the
Trustee or the Issuer receives not later than three Business Days
prior to the Purchase Date, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the
principal amount of the Security which was delivered for purchase
by the Holder and a statement that such Holder is withdrawing his
election to have such Security purchased. If at the expiration
of the Offer Period the aggregate principal amount of Securities
surrendered by Holders exceeds the Offer Amount, the Issuer shall
select the Securities to be purchased on a pro rata basis in
accordance with the principles set forth in Section 3.04 (with
such adjustments as may be deemed appropriate by the Issuer so
that only Securities in denominations of $1,000, or integral
multiples thereof, shall be purchased). Holders whose Securities
are purchased only in part will be issued new Securities equal in
principal amount to the unpurchased portion of the Securities
surrendered.
(4) At the time the Issuer delivers Securities to the
Trustee which are to be accepted for purchase, the Issuer will
also deliver an Officers' Certificate stating that such
Securities are to be accepted by the Issuer pursuant to and in
accordance with the terms of this Section. A Security shall be
deemed to have been accepted for purchase at the time the
Trustee, directly or through an agent, mails or delivers payment
therefor to the surrendering Holder.
(d) The Issuer shall comply, to the extent applicable,
with the requirements of Section 14(e) of the Exchange Act and
any other securities laws or regulations in connection with the
repurchase of Securities pursuant to this Section. To the extent
that the provisions of any securities laws or regulations
conflict with provisions of this Section, the Issuer shall comply
with the applicable securities laws and regulations and shall not
be deemed to have breached its obligations under this Section by
virtue thereof.
(e) Notwithstanding anything to the contrary contained
in this Section 4.12, (x) so long as Section 6(j) of the
Investment Agreement is in effect, the Issuer shall not sell,
transfer or otherwise dispose of any shares of Capital Stock of
any Restricted Subsidiary (as defined therein) if, after giving
effect to such sale, transfer or disposition, there exists any
Default (as defined therein) and (y) so long as Section 9(a)(4)
of the Investment Agreement is in effect, upon the occurrence of
an Asset Disposition (as defined therein), the Issuer shall apply
to the prepayment of Senior Debt (as defined therein) of the
Issuer an amount equal to the amount of Net Available Cash (as
defined therein), not applied within 360 days of such Asset
Disposition (as defined therein), to the acquisition of Tangible
Property acceptable to the Initial Investor. With respect to any
redemption of Securities pursuant to clause (y), the respective
principal amounts of Series A Securities and Series B Securities
to be redeemed shall be determined pro rata based on the
respective principal amounts of Series A Securities and Series B
Securities Outstanding (and not theretofore called for
redemption) on the date the redemption is to be made, PROVIDED
that no Series B Securities shall be redeemed prior to March __,
1998 pursuant to this paragraph or Section 9(a)(4) of the
Investment Agreement other than pursuant to an accepted Offer.
The redemption price for any Series A Securities redeemed
pursuant to this paragraph or Section 9(a)(4) of the Investment
Agreement will be computed in accordance with the provisions of
Section 3.01(j) and the redemption price for any Series B
Securities so redeemed will be the purchase price specified in
Section 4.12(b).
c:\dms\004787\00028\0086509.Wp
07/14/95 (8:32am)
<PAGE>
Exhibit 11
AMERICOLD CORPORATION
STATEMENT RE COMPUTATION OF
PER SHARE EARNINGS
(In thousands, except per share data)
Three months Three months
ended the ended the
last day of last day of
May 1994 May 1995
------------- -------------
(Unaudited) (Unaudited)
Net loss $ (2,716) $ (3,502)
Less: total
accrued preferred
dividend
(49.672 shares x
11.50% x 3/12 yr) (143) -
(52.936 shares x
13.50% x 3/12 yr) - (179)
--------- ---------
Net loss for per
share calculation $ (2,859) $ (3,681)
--------- ---------
Weighted average
number of shares
outstanding 4,864 4,861
--------- ---------
Net loss
per share $ (0.59) $ (0.76)
--------- ---------
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED
FROM AMERICOLD CORPORATION'S FINANCIAL STATEMENTS CONTAINED IN
ITS QUARTERLY REPORT ON FORM 10-Q FOR THE PERIOD ENDING MAY
31, 1995 AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH
FINANCIAL STATEMENTS
</LEGEND>
<MULTIPLIER> 1,000
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> FEB-29-1996
<PERIOD-END> MAY-31-1995
<CASH> 36,001<F1>
<SECURITIES> 0
<RECEIVABLES> 17,794<F5>
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 61,931
<PP&E> 540,803<F5>
<DEPRECIATION> 161,484
<TOTAL-ASSETS> 538,720
<CURRENT-LIABILITIES> 77,148
<BONDS> 442,456<F5>
<COMMON> 49<F2>
5,976<F3>
0
<OTHER-SE> (101,485)<F2>
<TOTAL-LIABILITY-AND-EQUITY> 538,720
<SALES> 53,183
<TOTAL-REVENUES> 53,183
<CGS> 33,574
<TOTAL-COSTS> 41,116
<OTHER-EXPENSES> (337)
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 14,234
<INCOME-PRETAX> (5,353)
<INCOME-TAX> (1,851)<F4>
<INCOME-CONTINUING> (3,502)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (3,502)
<EPS-PRIMARY> (0.76)<F3>
<EPS-DILUTED> (0.76)<F3>
<FN>
<F1>See Note 6 to Notes to Consolidated Financial Statements
<F2>See Note 3 to Notes to Consolidated Financial Statements
<F3>See Note 5 to Notes to Consolidated Financial Statements
<F4>See Note 4 to Notes to Consolidated Financial Statements
<F5>See Note 7 to Notes to Consolidated Financial Statements
</FN>
</TABLE>
