EXHIBIT G
TO AMERICOLD CORPORATION AGREEMENT
SUBORDINATION PROVISIONS
Each promissory note evidencing subordinated Indebtedness (as
defined in the Credit Agreement to which this Exhibit G is attached) and each
mortgage or other document created a lien securing such subordinated
Indebtedness incurred by Americold Corporation, an Oregon corporation (the
"Company"), shall have the following subordination provisions included therein,
and shall include in the text of such promissory note the language: "THE
INDEBTEDNESS EVIDENCED BY THIS NOTE AND THE LIEN OF THE INSTRUMENTS SECURING
THIS NOTE ARE SUBORDINATE AND JUNIOR IN RIGHT OF PAYMENT TO ALL SENIOR
INDEBTEDNESS (AS DEFINED IN ANNEX A HERETO) TO THE EXTENT PROVIDED IN ANNEX A."
and in the mortgage or other document the language: "THE LIEN CREATED BY THIS
AGREEMENT AND THE INDEBTEDNESS SECURED HEREBY ARE SUBORDINATE AND JUNIOR IN
RIGHT OF PAYMENT TO ALL SENIOR INDEBTEDNESS (AS DEFINED IN ANNEX A HERETO) TO
THE EXTENT PROVIDED IN ANNEX A."
ANNEX A TO PROMISSORY NOTE
AND MORTGAGE OR OTHER DOCUMENT
Section 1.1. Subordination of Liabilities. Americold
Corporation, an Oregon corporation (the "Company"), for itself, its successors
and assigns, covenants and agrees and each holder of the promissory note (each
such holder sometimes called a "Junior Creditor") which is secured by the
mortgage or other document creating a lien to which this Annex A is attached
(the "Note") by its acceptance thereof likewise covenants and agrees that the
payment of the principal of, and interest on, and all other amounts owing in
respect of, the Note is hereby expressly subordinated, to the extent and in the
manner hereinafter set forth, to the prior indefeasible payment in full of
Senior Indebtedness (as defined in Section 1.7) in cash. The liens created by
any Junior Lien Document (as defined below) shall be junior and subordinate in
all respects to the liens purported to be created by any pledge, mortgage,
security agreement or other document relating to the Senior Indebtedness
(collectively, the "Senior Lien Documents"), regardless of any defect in such
documents, whether or not such Senior Lien Documents are enforceable, whether or
not the security interests thereunder are perfected, regardless of the priority
of such Senior Lien Documents with respect to the Junior Lien Documents under
applicable law and regardless of any other circumstance that might otherwise
give priority to the Junior Lien Documents. The provisions of this Annex A shall
constitute a continuing offer to all persons who, in reliance upon such
provisions, become holders of, or continue to hold, Senior Indebtedness, and
such provisions are made for the benefit of the holders of Senior Indebtedness,
and such holders are hereby made obligees hereunder to the same extent as if
their names were written herein as such, and they and/or each of them may
proceed to enforce such provisions.
The Holder of the Note agrees that notwithstanding any other
provision of the Note to the contrary, no cash interest (except as permitted by
Section 6.11 of the Credit Agreement referred to below) or any principal shall
at any time become due under any circumstances on or prior to November 15, 1999
(the provisions of this sentence being herein called the "Repayment Alteration
Provisions").
Section 1.2. Company Not to Make Payments with Respect to
Notes in Certain Circumstances. (a) Upon the maturity of any Senior Indebtedness
(including interest thereon or fees or any other amounts owing in respect
thereof), whether at stated maturity, by acceleration or otherwise, all
principal thereof and premium, if any, and interest thereof or fees or any other
amounts owing in respect thereof, in each case to the extent due and owing at
such time, shall first be paid in full in cash, or such payment duly provided
for in cash or in a manner satisfactory to the holder or holders of such Senior
Indebtedness, before any payment is made on account of the principal of
(including installments thereof), or interest on, or any amount otherwise owing
in respect of, the Note (the "Junior Indebtedness"). Each holder of the Note
hereby agrees that, so long as any Senior Indebtedness remains unpaid, it will
not ask, demand, xxx for, or otherwise take, accept or receive, any amounts
owing in respect of the Note or take any action to enforce any provision of any
document ("Junior Lien Documents") creating a pledge, mortgage, lien or security
interest to secure repayment of any portion of the Junior Indebtedness. Except
to the extent required by law, the holder of the Note shall not be entitled to
notice of such sale and such holder agrees that five (5) business days' notice
of any such sale or other disposition is reasonable notice to the extent such
notice is required by applicable law. The holder of the Note hereby consents to
any motion or application the holder of Senior Indebtedness may make to obtain
relief from any automatic stay imposed under applicable bankruptcy law in order
for the holder of Senior Indebtedness to enforce the terms of the Senior Lien
Documents. The holder of the Note will not oppose any such motion or
application.
(b) In the event that notwithstanding the provisions of the
preceding subsection (a) of this Section 1.02, the Company shall make any
payment on account of the principal of, or interest on, or amounts otherwise
owing in respect of, the Note at a time when payment is not permitted by said
subsection (a), such payment shall be held by the holder of the Note, in trust
for the benefit of, and shall be paid forthwith over and delivered to, the
holders of Senior Indebtedness or their representative or representatives under
the agreements pursuant to which the Senior Indebtedness may have been issued,
as their respective interests may appear, for application pro rata to the
payment of all Senior Indebtedness remaining unpaid to the extent necessary to
pay all Senior Indebtedness in full in cash in accordance with the terms of such
Senior Indebtedness, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Indebtedness. Without in any way
modifying the provisions of this Annex A or affecting the subordination effected
hereby, if such notice is not given, the Company shall give the holder of the
Note prompt written notice of any maturity of Senior Indebtedness after which
such Senior Indebtedness remains unsatisfied.
Section 1.3. Note Subordinated to Prior Payment of all Senior
Indebtedness on Dissolution, Liquidation or Reorganization of Company. Upon any
distribution of assets of the Company upon any dissolution, winding up,
liquidation or reorganization of the Company (whether in bankruptcy, insolvency
or receivership proceedings or upon an assignment for the benefit of creditors
or otherwise):
(a) the holders of all Senior Indebtedness shall first be
entitled to receive payment in full in cash or in a manner satisfactory
to the holder or holders of such Senior Indebtedness of the principal
thereof, premium, if any, and interest (including, without limitation,
all interest accruing after the commencement of any bankruptcy,
insolvency, receivership or similar proceeding at the rate provided in
the governing documentation whether or not such interest is an allowed
claim in such proceeding) and all other amounts due thereon before the
holder of the Note is entitled to receive any payment on account of the
principal of or interest on or any other amount owing in respect of the
Note;
(b) any payment or distributions of assets of the Company of
any kind or character, whether in cash, property or securities to which
the holder of the Note would be entitled except for the provisions of
this Annex A, shall be paid by the liquidating trustee or agent or
other person making such payment or distribution, whether a trustee or
agent, directly to the holders of Senior Indebtedness or their
representative or representatives under the agreements pursuant to
which the Senior Indebtedness may have been issued, to the extent
necessary to make payment in full of all Senior Indebtedness remaining
unpaid, after giving effect to any concurrent payment or distribution
to the holders of such Senior Indebtedness; and
(c) in the event that, notwithstanding the foregoing
provisions of this Section 1.03, any payment or distribution of assets
of the Company of any kind or character, whether in cash, property or
securities, shall be received by the holder of the Note on account of
principal of, or interest or other amounts due on, the Note before all
Senior Indebtedness is paid in full in cash or in a manner satisfactory
to the holder or holders of such Senior Indebtedness, or effective
provisions made for its payment, such payment or distribution shall be
received and held in trust for and shall be paid over to the holders of
the Senior Indebtedness remaining unpaid or unprovided for or their
representative or representatives under the agreements pursuant to
which the Senior Indebtedness may have been issued, for application to
the payment of such Senior Indebtedness until all such Senior
Indebtedness shall have been paid in full in cash or in a manner
satisfactory to the holder or holders of such Senior Indebtedness,
after giving effect to any concurrent payment or distribution to the
holders of such Senior Indebtedness.
Without in any way modifying the provisions of this Annex A or
affecting the subordination effected hereby, if such notice is not given, the
Company shall give prompt written notice to the holder of the Note of any
dissolution, winding up, liquidation or reorganization of the Company (whether
in bankruptcy, insolvency or receivership proceedings or upon an assignment for
the benefit of creditors or otherwise). In order to enable Senior Creditor to
enforce its rights hereunder, each Junior Creditor hereby irrevocably authorizes
and empowers the Senior Creditor (in its own name or in the name of such Junior
Creditor or otherwise), but the Senior Creditor shall have no obligation to,
enforce claims comprising any of the Junior Indebtedness by proof of debt, proof
of claim, suit or otherwise and take generally any action which such Junior
Creditor might otherwise be entitled to take, as Senior Creditor may deem
necessary or advisable for the enforcement of its rights or interests hereunder.
Section 1.4. Subrogation. Subject to the prior payment in full
of all Senior Indebtedness in cash, the holder of the Note shall be subrogated
to the rights of the holders of Senior Indebtedness to receive payments or
distributions of assets of the Company applicable to the Senior Indebtedness
until all amounts owing on the Note shall be paid in full, and for the purpose
of such subrogation no payments or distributions to the holders of the Senior
Indebtedness by or on behalf of the Company or by or on behalf of the holder of
the Note by virtue of this Annex A which otherwise would have been made to the
holder of the Note, shall be deemed to be payment by the Company to or on
account of the Senior Indebtedness, it being understood that the provisions of
this Annex A are and are intended solely for the purpose of defining the
relative rights of the holder of the Note, on the one hand, and the holders of
the Senior Indebtedness, on the other hand.
Section 1.5. Obligation of the Company Unconditional. Nothing
contained in this Annex A or in the Note (other than the Repayment Alteration
Provisions) is intended to or shall impair, as between the Company and its
holder of the Note, the obligation of the Company, which is absolute and
unconditional, to pay to the holder of the Note the principal of and interest on
the Note 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 holder
of the Note and creditors of the Company other than the holders of the Senior
Indebtedness, nor shall anything herein or therein prevent the holder of the
Note from exercising all remedies otherwise permitted by applicable law, subject
to the rights, if any, under this Annex A of the holders of the Senior
Indebtedness in respect of cash, property, or securities of the Company received
upon the exercise of any such remedy. Upon any distribution of assets of the
Company referred to in this Annex A, the holder of the Note shall be entitled to
rely upon any order or decree made by any court of competent jurisdiction in
which such dissolution, winding up, liquidation or reorganization proceedings
are pending, or a certificate of the liquidating trustee or agent or other
person making any distribution to the holder of the Note, for the purpose of
ascertaining the persons entitled to participate in such distribution, the
holders of the Senior Indebtedness and other indebtedness 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 Annex A.
Section 1.6. Subordination Rights not Impaired by Acts or
Omissions of Company or Holders of Senior Indebtedness. No right of any present
or future holders of any Senior Indebtedness to enforce subordination as herein
provided shall at any time in any way be prejudiced or impaired by an 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 and provisions of the Note, regardless of any knowledge thereof which any
such holder may have or be otherwise charged with. The holders of the Senior
Indebtedness may, without in any way affecting the obligations of the holder of
the Note with respect thereto, at any time or from time to time and in their
absolute discretion, change the manner, place or terms of payment of, change or
extend the time of payment of, or renew or alter, any Senior Indebtedness, or
amend, modify or supplement any agreement or instrument governing or evidencing
such Senior Indebtedness or any other document referred to therein, or exercise
or refrain from exercising any other of their rights under the Senior
Indebtedness including, without limitation, the waiver of a default thereunder
and the release of any collateral securing such Senior Indebtedness, all without
notice to or assent from the holder of the Note.
Section 1.7. Senior Indebtedness. (a) The term "Senior
Indebtedness" shall mean all Obligations (as defined below) of the Company
and/or its Subsidiaries (as defined below) under the Credit Agreement (as
defined below) and any renewal, extension, restatement or refunding thereof.
(a) As used in this Agreement, the terms set forth below shall
have the respective meanings provided below:
"Credit Agreement" shall mean the Credit Agreement dated as of
October 30, 1997 among the Company, Americold Services Corporation, Vornado
Crescent Portland Partnership, and Xxxxxxx Xxxxx Mortgage Company, as Lender and
as Agent, as the same may be modified, supplemented, amended or refinanced from
time to time, and including any agreement extending the maturity of, refinancing
or restructuring (including, but not limited to, the inclusion of additional
borrowers thereunder that are subsidiaries of the Company and whose obligations
are guaranteed by the Company thereunder or any increase in the amount borrowed)
all or any portion of, the indebtedness under such agreement or of any successor
agreements.
"Creditor" shall mean each of Junior Creditor and Senior
Creditor.
"Junior Creditor Agreements" shall mean each agreement
evidencing the obligations of the Junior Indebtedness.
"Obligations" shall mean any principal, interest, premium,
penalties, fees and other liabilities and obligations payable under the
documentation governing any Senior Indebtedness (including, without limitation,
all interest accruing after the commencement of any bankruptcy, insolvency,
receivership or similar proceeding at the rate provided in the governing
documentation, whether or not such interest is an allowed claim in such
proceeding).
"Senior Creditor" shall mean the holder of the Senior
Indebtedness or its representative.
Section 1.8. Certain Provisions Relating to Senior Lien
Documents and Junior Lien Documents. (a) Each Creditor shall be solely
responsible for perfecting and maintaining the perfection of its Lien in and to
each item constituting the collateral in which such Creditor has been granted a
lien. The foregoing provisions of this Annex A are intended solely to govern the
respective lien priorities as between the Creditors and shall not impose on
Senior Creditor any obligations in respect of the disposition of proceeds of
foreclosure on any Collateral which would conflict with prior perfected claims
therein in favor of any other person or any order or decree of any court or
other governmental authority or any applicable law. Each Junior Creditor agrees
that it will not contest the validity, perfection, priority or enforceability of
the liens upon the collateral of Senior Creditor and that as between Senior
Creditor and Junior Creditors, the terms of this Annex A shall govern even if
part or all of the Senior Indebtedness or the Liens securing payment and
performance thereof are avoided, disallowed, set aside or otherwise invalidated
in any judicial proceeding or otherwise.
1.9. Manqagement of Collateral. Subject to the provisions of
the Uniform Commercial Code and applicable law, Senior Creditor shall have the
exclusive right to manage, perform and enforce the terms of the Senior Lien
Documents with respect to the Collateral, to exercise and enforce all privileges
and rights thereunder according to its discretion and the exercise of its
business judgment, including, without limitation, the exclusive right to take or
retake control or possession of such Collateral and to hold, prepare for sale,
process, sell, lease, dispose of, or liquidate such collateral.
1.10. Release and Sale of Collateral. Notwithstanding
anything to the contrary contained in any of the Junior Lien Documents or the
Junior Indebtedness, only Senior Creditor shall have the right to restrict or
permit, or approve or disapprove, the sale, transfer or other disposition of
collateral. Each Junior Creditor shall, immediately upon the request of Senior
Creditor, release or otherwise terminate its Liens on the Collateral to the
extent such Collateral is sold or otherwise disposed of either by (a) Senior
Creditor or its agents or (b) Debtor with the consent of Senior Creditor. Each
Junior Creditor shall immediately deliver such release documents as Senior
Creditor may require in connection therewith.
1.11. Certain Waivers by Junior Creditor. Notwithstanding any
rights or remedies available to a Junior Creditor under any of the Junior
Creditor Agreements, applicable law or otherwise, and except as provided in the
remainder of this Annex A, each Junior Creditor shall not, directly or
indirectly, (a) seek to collect from the Company (including, without limitation,
from or by way of any collateral) any of the Junior Indebtedness or exercise any
of its rights or remedies upon a default or event of default by the Company
under its Junior Creditor Agreements or otherwise, or (b) seek to foreclose or
realize upon (judicially or non-judicially) its Lien on any Collateral or assert
any claims or interests therein (including, without limitation, by setoff or
notification of account debtors), or (c) commence any action or proceeding
against the Company or consent thereto or its properties under the U.S.
Bankruptcy Code or any state insolvency law or similar present or future
statute, law or regulation or any proceedings for voluntary liquidation,
dissolution or other winding up of Debtor's business, or the appointment of any
trustee, receiver or liquidator for the Company or any part of its properties or
any assignment for the benefit of creditors or any marshaling of assets of the
Company, or (d) take any other action against the Company or the collateral. The
foregoing shall not in any way limit or impair the right of any Junior Creditor
from bidding for and purchasing Collateral at any private or judicial
foreclosure upon such Collateral initiated by Senior Creditor or from filing
proofs of claim, financing statements or continuation statements, or taking any
other actions necessary to preserve the enforceability of the Junior
Indebtedness and the Liens securing the Junior Indebtedness and the perfection
of such Liens.
