EX-10.1 2 d430127dex101.htm EX-10.1 EX-10.1

Exhibit 10.1

EXECUTION COPY

 

 

AMERICOLD REALTY OPERATING PARTNERSHIP, L.P.

AMERICOLD REALTY TRUST

$350,000,000

4.10% Series C Guaranteed Senior Notes due January 8, 2030

 

 

NOTE AND GUARANTY AGREEMENT

 

 

Dated as of May 7, 2019

 

 

 


TABLE OF CONTENTS

 

SECTION    HEADING    PAGE  

SECTION 1.

   AUTHORIZATION OF NOTES      1  

SECTION 2.

   SALE AND PURCHASE OF NOTES; GUARANTIES      1  

Section 2.1

   Sale and Purchase of Notes      1  

Section 2.2

   Guaranties      1  

SECTION 3.

   CLOSING      2  

SECTION 4.

   CONDITIONS TO CLOSING      2  

Section 4.1

   Representations and Warranties      2  

Section 4.2

   Performance; No Default      2  

Section 4.3

   Compliance Certificates      2  

Section 4.4

   Opinions of Counsel      3  

Section 4.5

   Purchase Permitted By Applicable Law, Etc.      3  

Section 4.6

   Sale of Other Notes      4  

Section 4.7

   Payment of Special Counsel Fees      4  

Section 4.8

   Private Placement Number      4  

Section 4.9

   Changes in Corporate Structure      4  

Section 4.10

   Funding Instructions      4  

Section 4.11

   Subsidiary Guaranty Agreement      4  

Section 4.12

   Incorporated Covenants      4  

Section 4.13

   Rating on the Notes      4  

Section 4.14

   Proceedings and Documents      4  

SECTION 5.

   REPRESENTATIONS AND WARRANTIES OF THE CONSTITUENT COMPANIES      5  

Section 5.1

   Organization; Power and Authority      5  

Section 5.2

   Authorization, Etc.      5  

Section 5.3

   Disclosure      6  

Section 5.4

   Organization and Ownership of Shares of Subsidiaries; Affiliates      7  

Section 5.5

   Financial Statements; Material Liabilities      7  

Section 5.6

   Compliance with Laws, Other Instruments, Etc.      8  

 

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Section 5.7

   Governmental Authorizations, Etc.      8  

Section 5.8

   Litigation; Observance of Agreements, Statutes and Orders      8  

Section 5.9

   Taxes      8  

Section 5.10

   Title to Property; Leases; Liens      9  

Section 5.11

   Licenses, Permits, Etc.      9  

Section 5.12

   Compliance with Employee Benefit Plans      10  

Section 5.13

   Private Offering      11  

Section 5.14

   Use of Proceeds; Margin Regulations      11  

Section 5.15

   Existing Indebtedness; Future Liens      12  

Section 5.16

   Foreign Assets Control Regulations, Etc.      12  

Section 5.17

   Status under Certain Statutes      13  

Section 5.18

   Environmental Matters      13  

Section 5.19

   Solvency      14  

SECTION 6.

   REPRESENTATIONS OF THE PURCHASERS      14  

Section 6.1

   Purchase for Investment      14  

Section 6.2

   Accredited Investor      14  

Section 6.3

   Source of Funds      15  

SECTION 7.

   INFORMATION AS TO CONSTITUENT COMPANIES      16  

Section 7.1

   Financial and Business Information      16  

Section 7.2

   Officer’s Certificate      19  

Section 7.3

   Visitation      20  

Section 7.4

   Electronic Delivery      20  

Section 7.5

   Limitation on Disclosure Obligation      21  

SECTION 8.

   PAYMENT AND PREPAYMENT OF THE NOTES      22  

Section 8.1

   Maturity      22  

Section 8.2

   Optional Prepayments with Make-Whole Amount      22  

Section 8.3

   Allocation of Partial Prepayments      22  

Section 8.4

   Maturity; Surrender, Etc.      23  

Section 8.5

   Purchase of Notes      23  

Section 8.6

   Make-Whole Amount      23  

Section 8.7

   Offer to Prepay Notes in the Event of a Change of Control      25  

Section 8.8

   Payments Due on Non-Business Days      26  

 

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SECTION 9.

   AFFIRMATIVE COVENANTS      27  

Section 9.1

   Compliance with Laws      27  

Section 9.2

   Insurance      27  

Section 9.3

   Maintenance of Properties      27  

Section 9.4

   Payment of Taxes and Claims      27  

Section 9.5

   Corporate Existence, Etc.      28  

Section 9.6

   Books and Records      28  

Section 9.7

   REIT Status; Stock Exchange Listing      28  

Section 9.8

   Ownership      28  

Section 9.9

   Subsidiary Guarantors      29  

Section 9.10

   Most Favored Lender Provision      30  

Section 9.11

   Rating on the Notes. The Issuer shall at all times maintain a Debt Rating for the Notes from an NRSRO      31  

SECTION 10.

   NEGATIVE COVENANTS      32  

Section 10.1

   Transactions with Affiliates      32  

Section 10.2

   Merger, Consolidation, Etc.      32  

Section 10.3

   Line of Business      33  

Section 10.4

   Economic Sanctions, Etc.      34  

Section 10.5

   Liens      34  

Section 10.6

   Financial Covenants      34  

SECTION 11.

   EVENTS OF DEFAULT      35  

SECTION 12.

   REMEDIES ON DEFAULT, ETC.      38  

Section 12.1

   Acceleration      38  

Section 12.2

   Other Remedies      38  

Section 12.3

   Rescission      38  

Section 12.4

   No Waivers or Election of Remedies, Expenses, Etc.      39  

SECTION 13.

   GUARANTEE      39  

Section 13.1

   The Guarantee      39  

Section 13.2

   Waiver of Defenses      39  

Section 13.3

   Guaranty of Payment      40  

Section 13.4

   Guaranty Unconditional      40  

Section 13.5

   Reinstatement      41  

 

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Section 13.6

   Payment on Demand      41  

Section 13.7

   Stay of Acceleration      41  

Section 13.8

   No Subrogation      41  

Section 13.9

   Marshalling      42  

Section 13.10

   Transfer of Notes      42  

Section 13.11

   Consideration      42  

SECTION 14.

   REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES      42  

Section 14.1

   Registration of Notes      42  

Section 14.2

   Transfer and Exchange of Notes      42  

Section 14.3

   Replacement of Notes      43  

SECTION 15.

   PAYMENTS ON NOTES      43  

Section 15.1

   Place of Payment      43  

Section 15.2

   Payment by Wire Transfer      43  

Section 15.3

   FATCA Information      44  

SECTION 16.

   EXPENSES, ETC.      44  

Section 16.1

   Transaction Expenses      44  

Section 16.2

   Certain Taxes      45  

Section 16.3

   Survival      45  

SECTION 17.

   SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT      45  

SECTION 18.

   AMENDMENT AND WAIVER      46  

Section 18.1

   Requirements      46  

Section 18.2

   Solicitation of Holders of Notes      46  

Section 18.3

   Binding Effect, Etc.      47  

SECTION 19.

   NOTICES      47  

SECTION 20.

   REPRODUCTION OF DOCUMENTS      48  

SECTION 21.

   CONFIDENTIAL INFORMATION      48  

SECTION 22.

   SUBSTITUTION OF PURCHASER      49  

SECTION 23.

   MISCELLANEOUS      49  

Section 23.1

   Successors and Assigns      49  

Section 23.2

   Accounting Terms      50  

Section 23.3

   Severability      50  

Section 23.4

   Construction, Etc.      50  

 

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Section 23.5

   Counterparts      51  

Section 23.6

   Governing Law      51  

Section 23.7

   Jurisdiction and Process; Waiver of Jury Trial      51  

 

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Schedule A      Defined Terms
SCHEDULE 1(c)      Form of 4.10% Series C Guaranteed Senior Note due January 8, 2030
SCHEDULE 4.4(a)      Form of Opinion of Special Counsel to the Constituent Companies and the Subsidiary Guarantors
SCHEDULE 4.4(b)      Form of Opinion of Special Counsel for the Purchasers
SCHEDULE 5.3      Disclosure Materials
SCHEDULE 5.4      Subsidiaries of the Parent Guarantor and Ownership of Subsidiary Stock; Affiliates; Directors and Senior Officers
SCHEDULE 5.5      Financial Statements
SCHEDULE 5.15      Existing Indebtedness
SCHEDULE QA      List of Qualified Assets
PURCHASER SCHEDULE      Information Relating to Purchasers
EXHIBIT SGA      Form of Subsidiary Guaranty Agreement

 

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AMERICOLD REALTY OPERATING PARTNERSHIP, L.P.

AMERICOLD REALTY TRUST

10 Glenlake Parkway, Suite 600, South Tower

Atlanta, Georgia 30328

4.10% Series C Guaranteed Senior Notes due January 8, 2030

Dated as of May 7, 2019

TO EACH OF THE PURCHASERS LISTED

  IN THE PURCHASER SCHEDULE HERETO:

Ladies and Gentlemen:

AMERICOLD REALTY OPERATING PARTNERSHIP, L.P., a Delaware limited partnership (the “Issuer”), and AMERICOLD REALTY TRUST, a Maryland real estate investment trust (the “Parent Guarantor,” and together with the Issuer, the “Constituent Companies” and individually, a “Constituent Company”), jointly and severally, agree with each of the Purchasers as follows:

SECTION 1. AUTHORIZATION OF NOTES.

The Issuer will authorize the issue and sale of $350,000,000 aggregate principal amount of its 4.10% Series C Guaranteed Senior Notes due January 8, 2030 (the “Notes”). The Notes shall be substantially in the form set out in Schedule 1(c). Certain capitalized and other terms used in this Agreement are defined in Schedule A and, for purposes of this Agreement, the rules of construction set forth in Section 23.4 shall govern.

SECTION 2. SALE AND PURCHASE OF NOTES; GUARANTIES.

Section 2.1 Sale and Purchase of Notes. Subject to the terms and conditions of this Agreement, the Issuer will issue and sell to each Purchaser and each Purchaser will purchase from the Issuer, at the Closing provided for in Section 3, Notes in the principal amount specified opposite such Purchaser’s name in the Purchaser Schedule at the purchase price of 100% of the principal amount thereof. The Purchasers’ obligations hereunder are several and not joint obligations and no Purchaser shall have any liability to any Person for the performance or non-performance of any obligation by any other Purchaser hereunder.

Section 2.2 Guaranties. The obligations of the Issuer hereunder and under the Notes are unconditionally and irrevocably guaranteed (a) by the Parent Guarantor pursuant to the Parent Guaranty and (b) by each Subsidiary Guarantor pursuant to the Subsidiary Guaranty Agreement.


SECTION 3. CLOSING.

The sale and purchase of the Notes to be purchased by each Purchaser shall occur at the offices of Schiff Hardin LLP, 666 Fifth Avenue, 17th Floor, New York, New York 10103, at 11:00 a.m., New York, New York time, at a closing (the “Closing”) on May 7, 2019. At the Closing, the Issuer will deliver to each Purchaser the Notes to be purchased by such Purchaser in the form of a single Note (or such greater number of Notes in denominations of at least $100,000 as such Purchaser may request) dated the date of the Closing and registered in such Purchaser’s name (or in the name of its nominee), against delivery by such Purchaser to the Issuer or its order of immediately available funds in the amount of the purchase price therefor by wire transfer to the account of the Issuer set forth in the funding instructions delivered by the Issuer pursuant to Section 4.10. If at the Closing the Issuer shall fail to tender such Notes to any Purchaser as provided above in this Section 3, or any of the conditions specified in Section 4 shall not have been fulfilled to such Purchaser’s satisfaction, such Purchaser shall, at its election, be relieved of all further obligations under this Agreement, without thereby waiving any rights such Purchaser may have by reason of such failure by the Issuer to tender such Notes or any of the conditions specified in Section 4 not having been fulfilled to such Purchaser’s satisfaction.

SECTION 4. CONDITIONS TO CLOSING.

Each Purchaser’s obligation to purchase and pay for the Notes to be sold to such Purchaser at the Closing is subject to the fulfillment to such Purchaser’s satisfaction, prior to or at the Closing, of the following conditions:

Section 4.1 Representations and Warranties.

(a) Representations of each Constituent Company. The representations and warranties of each Constituent Company in this Agreement shall be correct when made and at the Closing.

(b) Representations and Warranties of each Subsidiary Guarantor. The representations and warranties of each Subsidiary Guarantor in the Subsidiary Guaranty Agreement shall be correct when made and at the Closing.

Section 4.2 Performance; No Default. Each Constituent Company and each Subsidiary Guarantor shall have performed and complied with all agreements and conditions contained in this Agreement and the Subsidiary Guaranty Agreement required to be performed or complied with by it prior to or at the Closing. Before and after giving effect to the issue and sale of the Notes (and the application of the proceeds thereof as contemplated by Section 5.14), no Default or Event of Default shall have occurred and be continuing. Neither Constituent Company nor any Subsidiary shall have entered into any transaction since April 26, 2019 that would have been prohibited by Section 10 had such Section applied since such date.

Section 4.3 Compliance Certificates.

(a) Officer’s Certificate of each Constituent Company. Each Constituent Company shall have delivered to such Purchaser an Officer’s Certificate, dated the date of the Closing, certifying that the conditions specified in Sections 4.1, 4.2 and 4.9 have been fulfilled.

 

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(b) Secretary’s Certificate of each Constituent Company. Each Constituent Company shall have delivered to such Purchaser a certificate of its Secretary or Assistant Secretary, dated the date of the Closing, certifying as to (1) the resolutions attached thereto and other trust or limited partnership proceedings relating to the authorization, execution and delivery of the Notes (in the case of the Issuer) and this Agreement (in the case of each Constituent Company) and (2) such Constituent Company’s organizational documents as then in effect.

(c) Officer’s Certificate of each Subsidiary Guarantor. Each Subsidiary Guarantor shall have delivered to such Purchaser an Officer’s Certificate, dated the date of the Closing, certifying as to such Subsidiary Guarantor that the conditions specified in Sections 4.1(b), 4.2 and 4.9 have been fulfilled.

(d) Secretary’s Certificate of each Subsidiary Guarantor. Each Subsidiary Guarantor shall have delivered to such Purchaser a certificate of its Secretary or Assistant Secretary, dated the date of the Closing, certifying as to (1) the resolutions attached thereto and other corporate, limited liability company, partnership or trust proceedings relating to the authorization, execution and delivery of the Subsidiary Guaranty Agreement and (2) such Subsidiary Guarantor’s organizational documents as then in effect.

Section 4.4 Opinions of Counsel. Such Purchaser shall have received opinions in form and substance satisfactory to such Purchaser, dated the date of the Closing (a) from King & Spalding LLP, counsel to the Constituent Companies and the Subsidiary Guarantors, Venable LLP, Maryland counsel to the Constituent Companies and the Subsidiary Guarantors, Greenberg Traurig LLP, Massachusetts counsel to the Constituent Companies and the Subsidiary Guarantors, Smith, Slusky, Pohren & Rogers, LLP, Nebraska counsel to the Constituent Companies and the Subsidiary Guarantors, and Stoel Rives LLP, Minnesota counsel to the Constituent Companies and the Subsidiary Guarantors, collectively covering the matters set forth in Schedule 4.4(a) and covering such other matters incident to the transactions contemplated hereby as such Purchaser or its counsel may reasonably request (and the Constituent Companies hereby instruct their counsel to deliver such opinion to the Purchasers) and (b) from Schiff Hardin LLP, the Purchasers’ special counsel in connection with such transactions, substantially in the form set forth in Schedule 4.4(b) and covering such other matters incident to such transactions as such Purchaser may reasonably request.

Section 4.5 Purchase Permitted By Applicable Law, Etc. On the date of the Closing such Purchaser’s purchase of Notes shall (a) be permitted by the laws and regulations of each jurisdiction to which such Purchaser is subject, without recourse to provisions (such as section 1405(a)(8) of the New York Insurance Law) permitting limited investments by insurance companies without restriction as to the character of the particular investment, (b) not violate any applicable law or regulation (including Regulation T, U or X of the Board of Governors of the Federal Reserve System) and (c) not subject such Purchaser to any tax, penalty or liability under or pursuant to any applicable law or regulation, which law or regulation was not in effect on the date of this Agreement. If requested by such Purchaser, such Purchaser shall have received an Officer’s Certificate from the Issuer certifying as to such matters of fact as such Purchaser may reasonably specify to enable such Purchaser to determine whether such purchase is so permitted.

 

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Section 4.6 Sale of Other Notes. Contemporaneously with the Closing, the Issuer shall sell to each other Purchaser and each other Purchaser shall purchase the Notes to be purchased by it at the Closing as specified in the Purchaser Schedule.

Section 4.7 Payment of Special Counsel Fees. Without limiting Section 16.1, the Constituent Companies shall have paid on or before the Closing the fees, charges and disbursements of the Purchasers’ special counsel referred to in Section 4.4(b) to the extent reflected in a statement of such counsel rendered to the Constituent Companies at least one Business Day prior to the Closing.

Section 4.8 Private Placement Number. A Private Placement Number issued by Standard & Poor’s CUSIP Service Bureau (in cooperation with the SVO) shall have been obtained for the Notes.

Section 4.9 Changes in Corporate Structure. Neither Constituent Company nor any Subsidiary Guarantor shall have changed its jurisdiction of incorporation, formation or organization, as applicable, or been a party to any merger or consolidation or succeeded to all or any substantial part of the liabilities of any other entity, at any time following the date of the most recent financial statements referred to in Schedule 5.5.

Section 4.10 Funding Instructions. At least three Business Days prior to the date of the Closing, each Purchaser shall have received written instructions signed by a Responsible Officer of the Issuer on letterhead of the Issuer confirming the information specified in Section 3 including (a) the name and address of the transferee bank, (b) such transferee bank’s ABA number and (c) the account name and number into which the purchase price for the Notes is to be deposited.

Section 4.11 Subsidiary Guaranty Agreement. Such Purchaser shall have received a copy of the Subsidiary Guaranty Agreement which shall have been duly authorized, executed and delivered by each Person then required to be a Subsidiary Guarantor.

Section 4.12 Incorporated Covenants. Such Purchaser shall have received an Officer’s Certificate from the Constituent Companies identifying each Incorporated Covenant then in effect under any Principal Credit Facility.

Section 4.13 Rating on the Notes. Such Purchaser shall have received a copy of a letter from each NRSRO rating the Notes as of the date of the Closing evidencing each such rating (which evidence shall include the information required by Section 9.11).

Section 4.14 Proceedings and Documents. All corporate and other proceedings in connection with the transactions contemplated by this Agreement and all documents and instruments incident to such transactions shall be satisfactory to such Purchaser and its special counsel, and such Purchaser and its special counsel shall have received all such counterpart originals or certified or other copies of such documents as such Purchaser or such special counsel may reasonably request.

 

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SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE CONSTITUENT COMPANIES.

Each Constituent Company represents and warrants to each Purchaser that:

Section 5.1 Organization; Power and Authority.

(a) The Issuer is a limited partnership duly organized, validly existing and in good standing under the laws of its jurisdiction of formation, and is duly qualified as a foreign limited partnership and is in good standing in each jurisdiction in which such qualification is required by law, other than those jurisdictions as to which the failure to be so qualified or in good standing could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The Issuer has the limited partnership power and authority to own or hold under lease the properties it purports to own or hold under lease, to transact the business it transacts and proposes to transact, to execute and deliver this Agreement and the Notes and to perform the provisions hereof and thereof.

(b) The Parent Guarantor is a real estate investment trust duly organized, validly existing and in good standing under the laws of its jurisdiction of formation, and is duly qualified as a foreign entity and is in good standing in each jurisdiction in which such qualification is required by law, other than those jurisdictions as to which the failure to be so qualified or in good standing could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The Parent Guarantor has the trust power and authority to own or hold under lease the properties it purports to own or hold under lease, to transact the business it transacts and proposes to transact, to execute and deliver this Agreement and to perform the provisions hereof.

(c) Each Subsidiary Guarantor is a corporation or other legal entity duly organized or formed, validly existing and, where applicable, in good standing under the laws of its jurisdiction of organization or formation, and is duly qualified as a foreign corporation or other legal entity and, where applicable, is in good standing in each jurisdiction in which such qualification is required by law, other than those jurisdictions as to which the failure to be so qualified or in good standing could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Each Subsidiary Guarantor has the corporate or other power and authority to own or hold under lease the properties it purports to own or hold under lease and to transact the business it transacts and proposes to transact and to execute and deliver the Subsidiary Guaranty Agreement and to perform the provisions thereof.

Section 5.2 Authorization, Etc.

(a) This Agreement and the Notes have been duly authorized by all necessary corporate action on the part of the Issuer, and this Agreement constitutes, and upon execution and delivery thereof each Note will constitute, a legal, valid and binding obligation of the Issuer enforceable against the Issuer in accordance with its terms, except as such enforceability may be limited by (1) applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally and (2) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).

 

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(b) This Agreement has been duly authorized by all necessary corporate action on the part of the Parent Guarantor, and this Agreement constitutes a legal, valid and binding obligation of the Parent Guarantor enforceable against the Parent Guarantor in accordance with its terms, except as such enforceability may be limited by (1) applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally and (2) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).

(c) The Subsidiary Guaranty Agreement has been duly authorized by all necessary corporate or other action on the part of each Subsidiary Guarantor, and the Subsidiary Guaranty Agreement constitutes a legal, valid and binding obligation of each Subsidiary Guarantor enforceable against each Subsidiary Guarantor in accordance with its terms, except as such enforceability may be limited by (1) applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally and (2) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).

Section 5.3 Disclosure. The SEC filings posted to the IntraLinks site maintained by the agent for the Issuer and the Parent Guarantor, Merrill Lynch, Pierce, Fenner & Smith Incorporated, for this transaction and identified on Schedule 5.3, taken as a whole, fairly describe, in all material respects, the general nature of the business and principal properties of the Parent Guarantor, the Issuer and their Subsidiaries. This Agreement, the financial statements listed in Schedule 5.5 and the documents, certificates or other writings delivered to the Purchasers by or on behalf of the Constituent Companies prior to April 26, 2019 in connection with the transactions contemplated hereby and identified in Schedule 5.3 (this Agreement and such documents, certificates or other writings and such financial statements delivered to each Purchaser being referred to, collectively, as the Disclosure Documents) (other than pro forma financial information, estimates, budgets, forward looking statements and information of a general economic or industry nature concerning the Constituent Companies and their Subsidiaries), taken as a whole, do not contain any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein (taken as a whole) not misleading in light of the circumstances under which they were made. Except as disclosed in the Disclosure Documents, since December 31, 2018, there has been no change in the financial condition, operations, business, properties or prospects of the Parent Guarantor or any Subsidiary except changes that could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. There is no fact known to either Constituent Company that could reasonably be expected to have a Material Adverse Effect that has not been set forth herein or in the Disclosure Documents. The pro forma financial information, estimates, budgets, forward looking statements and information of a general economic or industry nature concerning the Constituent Companies and their Subsidiaries contained in the Disclosure Documents have been prepared in good faith based upon reasonable assumptions believed by management of the Constituent Companies to be reasonable at the time made, it being recognized by the Purchasers that such information is not to be viewed as a guarantee of performance.

 

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Section 5.4 Organization and Ownership of Shares of Subsidiaries; Affiliates.

(a) Schedule 5.4 contains (except as noted therein) complete and correct lists of (1) the Parent Guarantor’s Subsidiaries, showing, as to each Subsidiary, the name thereof, the jurisdiction of its organization, the percentage of shares of each class of its Capital Stock outstanding owned by the Parent Guarantor and each other Subsidiary and whether such Subsidiary is a Qualified Asset Guarantor or another Subsidiary Guarantor, (2) the Unconsolidated Affiliates, and (3) each Constituent Company’s directors and senior officers.

(b) All of the outstanding shares of Capital Stock of each Subsidiary shown in Schedule 5.4 as being owned by the Parent Guarantor and its Subsidiaries have been validly issued, are fully paid and non-assessable and are owned by the Parent Guarantor or another Subsidiary free and clear of any Lien that is prohibited by this Agreement.

(c) Each Subsidiary (other than a Subsidiary Guarantor) is a corporation or other legal entity duly organized, validly existing and, where applicable, in good standing under the laws of its jurisdiction of organization, and is duly qualified as a foreign corporation or other legal entity and, where applicable, is in good standing in each jurisdiction in which such qualification is required by law, other than those jurisdictions as to which the failure to be so qualified or in good standing could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Each such Subsidiary has the corporate or other power and authority to own or hold under lease the properties it purports to own or hold under lease and to transact the business it transacts and proposes to transact, except where the failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

(d) No Subsidiary is subject to any legal, regulatory, contractual or other restriction (other than the agreements listed on Schedule 5.4 and customary limitations imposed by corporate law or similar statutes) restricting the ability of such Subsidiary to pay dividends out of profits or make any other similar distributions of profits to the Parent Guarantor or any of its Subsidiaries that owns outstanding shares of Capital Stock of such Subsidiary.

Section 5.5 Financial Statements; Material Liabilities. The Constituent Companies have delivered to each Purchaser copies of the financial statements of the Parent Guarantor and its Subsidiaries listed on Schedule 5.5. All of such financial statements (including in each case the related schedules and notes) fairly present in all material respects the consolidated financial position of the Parent Guarantor and its Subsidiaries as of the respective dates specified in such Schedule and the consolidated results of their operations and cash flows for the respective periods so specified and have been prepared in accordance with GAAP consistently applied throughout the periods involved except as set forth in the notes thereto (subject, in the case of any interim financial statements, to normal year-end adjustments).    The Parent Guarantor and its Subsidiaries do not have any Material liabilities that are not disclosed in the Disclosure Documents.

 

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Section 5.6 Compliance with Laws, Other Instruments, Etc. The execution, delivery and performance by (a) the Issuer of this Agreement and the Notes, (b) the Parent Guarantor of this Agreement and (c) each Subsidiary Guarantor of the Subsidiary Guaranty Agreement will not (1) contravene, result in any breach of, or constitute a default under, or result in the creation of any Lien in respect of any property of the Parent Guarantor or any Subsidiary under, any indenture, mortgage, deed of trust, loan, purchase or credit agreement, lease, corporate charter, regulations or by-laws, shareholders agreement or any other agreement or instrument to which the Parent Guarantor or any Subsidiary is bound or by which the Parent Guarantor or any Subsidiary or any of their respective properties may be bound or affected, (2) conflict with or result in a breach of any of the terms, conditions or provisions of any order, judgment, decree or ruling of any court, arbitrator or Governmental Authority applicable to the Parent Guarantor or any Subsidiary or (3) violate any provision of any statute or other rule or regulation of any Governmental Authority applicable to the Parent Guarantor or any Subsidiary.

Section 5.7 Governmental Authorizations, Etc. No consent, approval or authorization of, or registration, filing or declaration with, any Governmental Authority is required in connection with the execution, delivery or performance by (a) the Issuer of this Agreement or the Notes, (b) the Parent Guarantor of this Agreement or (c) any Subsidiary Guarantor of the Subsidiary Guaranty Agreement.

Section 5.8 Litigation; Observance of Agreements, Statutes and Orders.

(a) There are no actions, suits, investigations or proceedings pending or, to the best knowledge of either Constituent Company, threatened against or affecting the Parent Guarantor or any Subsidiary or any property of the Parent Guarantor or any Subsidiary in any court or before any arbitrator of any kind or before or by any Governmental Authority that could, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

(b) Neither Constituent Company nor any Subsidiary is (1) in default under any agreement or instrument to which it is a party or by which it is bound, (2) in violation of any order, judgment, decree or ruling of any court, any arbitrator of any kind or any Governmental Authority or (3) in violation of any applicable law, ordinance, rule or regulation of any Governmental Authority (including Environmental Laws, the USA PATRIOT Act or any of the other laws and regulations that are referred to in Section 5.16), which default or violation could, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

Section 5.9 Taxes; REIT Status; Stock Exchange Listing.

(a) The Parent Guarantor and its Subsidiaries have filed all federal, state and other material tax returns that are required to have been filed in any jurisdiction, and have paid all taxes shown to be due and payable on such returns and all other taxes and assessments levied upon them or their properties, assets, income or franchises, to the extent such taxes and assessments have become due and payable and before they have become delinquent, except for any taxes and assessments (1) the amount of which, individually or in the aggregate, is not Material or (2) the amount, applicability or validity of which is currently being contested in good faith by appropriate proceedings and with respect to which the Parent Guarantor or a Subsidiary, as the case may be, has established adequate reserves in accordance with GAAP. Neither Constituent Company knows of any basis for any other tax or assessment that could, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The charges, accruals and

 

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reserves on the books of the Parent Guarantor and its Subsidiaries in respect of U.S. federal, state or other taxes for the then most recently ended fiscal quarter are adequate in accordance with GAAP. The U.S. federal income tax liabilities of the Parent Guarantor and its Subsidiaries have been finally determined (whether by reason of completed audits or the statute of limitations having run) for all fiscal years up to and including the fiscal year ended December 31, 2014.

(b) The Parent Guarantor (1) qualifies as a “real estate investment trust” as defined in section 856 of the Code for U.S. Federal income tax purposes (a “REIT”), (2) has elected to be treated as a REIT and has not revoked its election to be a REIT and (3) is in compliance with all other requirements and conditions imposed under the Code to allow it to maintain its status as a REIT. Each Subsidiary is either (i) a “qualified REIT subsidiary” within the meaning of Section 856(i) of the Code, (ii) a REIT, (iii) a “taxable REIT subsidiary” within the meaning of Section 856(1) of the Code, (iv) a partnership under Treasury Regulation Section 301.7701-3 or (v) an entity disregarded as a separate entity from its owner under Treasury Regulation Section 301.7701-3.

(c) The Parent Guarantor’s common Capital Stock is listed on the New York Stock Exchange.

Section 5.10 Title to Property; Leases; Liens. The Parent Guarantor and its Subsidiaries have good and sufficient title to their respective properties that individually or in the aggregate are Material, including all such properties reflected in the most recent audited balance sheet referred to in Section 5.5 or purported to have been acquired by the Parent Guarantor or any Subsidiary after such date (except as sold or otherwise disposed of in the ordinary course of business), in each case free and clear of Liens prohibited by this Agreement. All leases that individually or in the aggregate are Material are valid and subsisting and are in full force and effect in all material respects. None of the Qualified Assets or the Capital Stock of any Subsidiary Guarantor or any Wholly-Owned, direct Foreign Subsidiary of a Subsidiary Guarantor that owns or leases a Qualified Asset is subject to any Lien except Permitted Encumbrances and Permitted Equity Encumbrances.

Section 5.11 Licenses, Permits, Etc.

(a) The Parent Guarantor and its Subsidiaries own or possess all licenses, permits, franchises, authorizations, patents, copyrights, proprietary software, service marks, trademarks and trade names, or rights thereto, except to the extent that the failure to do so, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect, without known conflict with the rights of others, other than any such conflict that, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect. No claim has been asserted against the Parent Guarantor or any of its Subsidiaries or is pending by any Person challenging or questioning the use of any intellectual property of the Parent Guarantor or any of its Subsidiaries or the validity or effectiveness of any such intellectual property in each case that could reasonably be expected to have a Material Adverse Effect, nor does either Constituent Company know of any valid basis for any such claim in each case that could reasonably be expected to have a Material Adverse Effect.

 

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(b) To the best knowledge of each Constituent Company, no product or service of the Parent Guarantor or any of its Subsidiaries infringes any license, permit, franchise, authorization, patent, copyright, proprietary software, service mark, trademark, trade name or other right owned by any other Person, except to the extent that such infringements, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.

(c) To the best knowledge of each Constituent Company, there is no violation by any Person of any right of the Parent Guarantor or any of its Subsidiaries with respect to any license, permit, franchise, authorization, patent, copyright, proprietary software, service mark, trademark, trade name or other right owned or used by the Parent Guarantor or any of its Subsidiaries, except to the extent that such violations, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.

Section 5.12 Compliance with Employee Benefit Plans.

(a) The Parent Guarantor and each ERISA Affiliate have operated and administered each Plan in compliance with all applicable laws except for such instances of noncompliance as have not resulted in and could not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect. Neither the Parent Guarantor nor any ERISA Affiliate has incurred any liability pursuant to Title I or IV of ERISA or the penalty or excise tax provisions of the Code relating to employee benefit plans (as defined in section 3 of ERISA), and no event, transaction or condition has occurred or exists that could, individually or in the aggregate, reasonably be expected to result in the incurrence of any such liability by the Parent Guarantor or any ERISA Affiliate, or in the imposition of any Lien on any of the rights, properties or assets of the Parent Guarantor or any ERISA Affiliate, in either case pursuant to Title I or IV of ERISA or to section 430(k) of the Code or to any such penalty or excise tax provisions under the Code or federal law or section 4068 of ERISA or by the granting of a security interest in connection with the amendment of a Plan, other than such liabilities or Liens as would not be individually or in the aggregate Material.

(b) The present value of the aggregate benefit liabilities under each of the Plans (other than Multiemployer Plans), determined as of the end of such Plan’s most recently ended plan year on the basis of the actuarial assumptions specified for funding purposes in such Plan’s most recent actuarial valuation report, did not exceed the aggregate current value of the assets of such Plan allocable to such benefit liabilities by more than $1,000,000 in the case of any single Plan and by more than $1,000,000 in the aggregate for all Plans. The present value of the accrued benefit liabilities (whether or not vested) under each Non-U.S. Plan that is funded, determined as of the end of the Parent Guarantor’s most recently ended fiscal year on the basis of reasonable actuarial assumptions, did not exceed the current value of the assets of such Non-U.S. Plan allocable to such benefit liabilities by more than $75,000. The term “benefit liabilities” has the meaning specified in section 4001 of ERISA and the terms “current value” and “present value” have the meaning specified in section 3 of ERISA.

 

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(c) The Parent Guarantor and its ERISA Affiliates have not incurred (1) withdrawal liabilities (and are not subject to contingent withdrawal liabilities) under section 4201 or 4204 of ERISA in respect of Multiemployer Plans that individually or in the aggregate are Material or (2) any obligation in connection with the termination of or withdrawal from any Non-U.S. Plan that individually or in the aggregate are Material.

(d) The expected postretirement benefit obligation (determined as of the last day of the Parent Guarantor’s most recently ended fiscal year in accordance with Financial Accounting Standards Board Accounting Standards Codification Topic 715-60, without regard to liabilities attributable to continuation coverage mandated by section 4980B of the Code) of the Parent Guarantor and its Subsidiaries is not Material.

(e) The execution and delivery of this Agreement and the issuance and sale of the Notes hereunder will not involve any transaction that is subject to the prohibitions of section 406(a)(1) of ERISA or in connection with which a tax could be imposed pursuant to section 4975(c)(1)(A)-(D) of the Code. The representation by the Constituent Companies to each Purchaser in the first sentence of this Section 5.12(e) is made in reliance upon and subject to the accuracy of such Purchaser’s representation in Section 6.3 as to the sources of the funds to be used to pay the purchase price of the Notes to be purchased by such Purchaser.

(f) All Non-U.S. Plans have been established, operated, administered and maintained in compliance with all laws, regulations and orders applicable thereto, except where failure so to comply could not be reasonably expected to have a Material Adverse Effect. All premiums, contributions and any other amounts required by applicable Non-U.S. Plan documents or applicable laws to be paid or accrued by the Parent Guarantor and its Subsidiaries have been paid or accrued as required, except where failure so to pay or accrue could not be reasonably expected to have a Material Adverse Effect.

Section 5.13 Private Offering. Neither Constituent Company nor anyone acting on their behalf has offered the Notes, the Parent Guaranty, the Subsidiary Guaranty Agreement or any similar Securities for sale to, or solicited any offer to buy the Notes or any similar Securities from, or otherwise approached or negotiated in respect thereof with, any Person other than the Purchasers and not more than 50 other Institutional Investors, each of which has been offered the Notes at a private sale for investment. Neither Constituent Company nor anyone acting on its behalf has taken, or will take, any action that would subject the issuance or sale of the Notes, the execution and delivery by the Parent Guarantor of this Agreement for purposes of providing the Parent Guaranty or the execution and delivery of the Subsidiary Guaranty Agreement to the registration requirements of section 5 of the Securities Act or to the registration requirements of any Securities or blue sky laws of any applicable jurisdiction.

Section 5.14 Use of Proceeds; Margin Regulations. The Issuer will apply the proceeds of the sale of the Notes hereunder to repay certain existing Indebtedness of the Constituent Companies and for general corporate purposes. No part of the proceeds from the sale of the Notes hereunder will be used, directly or indirectly, for the purpose of buying or carrying any margin stock within the meaning of Regulation U of the Board of Governors of the Federal Reserve System (12 CFR 221), or for the purpose of buying or carrying or trading in any Securities under such circumstances as to involve the Issuer in a violation of Regulation X of said Board (12 CFR 224) or to involve any broker or dealer in a violation of Regulation T of said

 

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Board (12 CFR 220). Margin stock does not constitute more than 5% of the value of the consolidated assets of the Parent Guarantor and its Subsidiaries and the Constituent Companies do not have any present intention that margin stock will constitute more than 5% of the value of such assets. As used in this Section, the terms “margin stock” and “purpose of buying or carrying” shall have the meanings assigned to them in said Regulation U.

Section 5.15 Existing Indebtedness; Future Liens.

(a) Except as described therein, Schedule 5.15 sets forth a complete and correct list of all outstanding Indebtedness of the Parent Guarantor and its Subsidiaries the outstanding principal amount of which exceeds $1,000,000 (or its equivalent in the relevant currency of payment) as of December 31, 2018 (including descriptions of the obligors and obligees, principal amounts outstanding, any collateral therefor and any Guaranty thereof), since which date there has been no Material change in the amounts, interest rates, sinking funds, installment payments or maturities of such Indebtedness of the Parent Guarantor or its Subsidiaries. The aggregate principal amount of all outstanding Indebtedness of the Parent Guarantor and its Subsidiaries not set forth on Schedule 5.15 does not exceed $25,000,000 (or its equivalent in the relevant currency of payment). Neither the Parent Guarantor nor any Subsidiary is in default and no waiver of default is currently in effect, in the payment of any principal or interest on any Indebtedness of the Parent Guarantor or such Subsidiary and no event or condition exists with respect to any Indebtedness of the Parent Guarantor or any Subsidiary the outstanding principal amount of which exceeds $1,000,000 (or its equivalent in the relevant currency of payment) that would permit (or that with notice or the lapse of time, or both, would permit) one or more Persons to cause such Indebtedness to become due and payable before its stated maturity or before its regularly scheduled dates of payment.

(b) Except as disclosed in Schedule 5.15, neither the Parent Guarantor nor any Subsidiary has agreed or consented to cause or permit any of its property, whether now owned or hereafter acquired, to be subject to a Lien that secures Indebtedness or to cause or permit in the future (upon the happening of a contingency or otherwise) any of its property, whether now owned or hereafter acquired, to be subject to a Lien not permitted by this Agreement.

(c) Neither the Parent Guarantor nor any Subsidiary is a party to, or otherwise subject to any provision contained in, any instrument evidencing Indebtedness of the Parent Guarantor or such Subsidiary, any agreement relating thereto or any other agreement (including its charter or any other organizational document) which limits the amount of, or otherwise imposes restrictions on the incurring of, Indebtedness of the Issuer under this Agreement and the Notes, of the Parent Guarantor under this Agreement or of any Subsidiary Guarantor under the Subsidiary Guaranty Agreement.

Section 5.16 Foreign Assets Control Regulations, Etc.

(a) Neither the Parent Guarantor nor any Controlled Entity (1) is a Blocked Person, (2) has been notified that its name appears or may in the future appear on a State Sanctions List or (3) is a target of sanctions that have been imposed by the United Nations or the European Union.

 

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(b) Neither the Parent Guarantor nor any Controlled Entity (1) has violated, been found in violation of, or been charged or convicted under, any applicable U.S. Economic Sanctions Laws, Anti-Money Laundering Laws or Anti-Corruption Laws or (2) to the either Constituent Company’s knowledge, is under investigation by any Governmental Authority for possible violation of any applicable U.S. Economic Sanctions Laws, Anti-Money Laundering Laws or Anti-Corruption Laws.

(c) No part of the proceeds from the sale of the Notes hereunder:

(1) constitutes or will constitute funds obtained on behalf of any Blocked Person or will otherwise be used by the Parent Guarantor or any Controlled Entity, directly or indirectly, (i) in connection with any investment in, or any transactions or dealings with, any Blocked Person, (ii) for any purpose that would cause any Purchaser to be in violation of any U.S. Economic Sanctions Laws or (iii) otherwise in violation of any U.S. Economic Sanctions Laws;

(2) will be used, directly or indirectly, in violation of, or cause any Purchaser to be in violation of, any applicable Anti-Money Laundering Laws; or

(3) will be used, directly or indirectly, for the purpose of making any improper payments, including bribes, to any Governmental Official or commercial counterparty in order to obtain, retain or direct business or obtain any improper advantage, in each case which would be in violation of, or cause any Purchaser to be in violation of, any applicable Anti-Corruption Laws.

(d) The Parent Guarantor has established procedures and controls which the Constituent Companies reasonably believe are adequate (and otherwise comply with applicable law) to ensure that the Parent Guarantor and each Controlled Entity is and will continue to be in compliance with all applicable U.S. Economic Sanctions Laws, Anti-Money Laundering Laws and Anti-Corruption Laws.

Section 5.17 Status under Certain Statutes. Neither Constituent Company nor any Subsidiary (a) is an “investment company” or is required to be registered as such under the Investment Company Act of 1940 or (b) is subject to regulation under the Public Utility Holding Company Act of 2005, the ICC Termination Act of 1995 or the Federal Power Act.

Section 5.18 Environmental Matters.

(a) Neither the Parent Guarantor nor any Subsidiary has knowledge of any claim or has received any notice of any claim and no proceeding has been instituted asserting any claim against the Parent Guarantor or any of its Subsidiaries or any of their respective real properties or other assets now or formerly owned, leased or operated by any of them, alleging any damage to the environment or violation of any Environmental Laws, except, in each case, such as could not reasonably be expected to result in a Material Adverse Effect.

 

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(b) Neither the Parent Guarantor nor any Subsidiary has knowledge of any facts which would give rise to any claim, public or private, of violation of Environmental Laws or damage to the environment emanating from, occurring on or in any way related to real properties now or formerly owned, leased or operated by any of them or to other assets or their use, except, in each case, such as could not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.

(c) Neither the Parent Guarantor nor any Subsidiary has stored any Hazardous Materials on real properties now or formerly owned, leased or operated by any of them in a manner which is contrary to any Environmental Law that could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.

(d) Neither the Parent Guarantor nor any Subsidiary has disposed of any Hazardous Materials in a manner which is contrary to any Environmental Law that could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.

(e) All buildings on all real properties now owned, leased or operated by the Parent Guarantor or any Subsidiary are in compliance with applicable Environmental Laws, except where failure to comply could not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.

Section 5.19 Solvency. As of the date of the Closing, the Parent Guarantor and its Subsidiaries and the Issuer and its Subsidiaries, in each case taken as a whole and on a consolidated basis, immediately after the consummation of the transactions contemplated hereby, are Solvent.

SECTION 6. REPRESENTATIONS OF THE PURCHASERS.

Section 6.1 Purchase for Investment. Each Purchaser severally represents that it is purchasing the Notes for its own account or for one or more separate accounts maintained by such Purchaser or for the account of one or more pension or trust funds and not with a view to the distribution thereof, provided that the disposition of such Purchaser’s or their property shall at all times be within such Purchaser’s or their control. Each Purchaser understands that the Notes have not been registered under the Securities Act and may be resold only if registered pursuant to the provisions of the Securities Act or if an exemption from registration is available, except under circumstances where neither such registration nor such an exemption is required by law, and that the Issuer is not required to register the Notes.

Section 6.2 Accredited Investor. Each Purchaser severally represents that it is an “accredited investor” (as defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) acting for its own account (and not for the account of others) or as a fiduciary or agent for others (which others are also “accredited investors”). Each Purchaser further severally represents that such Purchaser has had the opportunity to ask questions of, and request information from, the Constituent Companies and receive answers concerning the Constituent Companies and the terms and conditions of the offering and sale of the Notes.

 

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Section 6.3 Source of Funds. Each Purchaser severally represents that at least one of the following statements is an accurate representation as to each source of funds (a “Source”) to be used by such Purchaser to pay the purchase price of the Notes to be purchased by such Purchaser hereunder:

(a) the Source is an “insurance company general account” (as the term is defined in the United States Department of Labor’s Prohibited Transaction Exemption (“PTE”) 95-60) in respect of which the reserves and liabilities (as defined by the annual statement for life insurance companies approved by the NAIC (the “NAIC Annual Statement”)) for the general account contract(s) held by or on behalf of any employee benefit plan together with the amount of the reserves and liabilities for the general account contract(s) held by or on behalf of any other employee benefit plans maintained by the same employer (or affiliate thereof as defined in PTE 95-60) or by the same employee organization in the general account do not exceed 10% of the total reserves and liabilities of the general account (exclusive of separate account liabilities) plus surplus as set forth in the NAIC Annual Statement filed with such Purchaser’s state of domicile; or

(b) the Source is a separate account that is maintained solely in connection with such Purchaser’s fixed contractual obligations under which the amounts payable, or credited, to any employee benefit plan (or its related trust) that has any interest in such separate account (or to any participant or beneficiary of such plan (including any annuitant)) are not affected in any manner by the investment performance of the separate account; or

(c) the Source is either (1) an insurance company pooled separate account, within the meaning of PTE 90-1 or (2) a bank collective investment fund, within the meaning of the PTE 91-38 and, except as disclosed by such Purchaser to the Issuer in writing pursuant to this clause (c), no employee benefit plan or group of plans maintained by the same employer or employee organization beneficially owns more than 10% of all assets allocated to such pooled separate account or collective investment fund; or

(d) the Source constitutes assets of an “investment fund” (within the meaning of Part VI of PTE 84-14 (the “QPAM Exemption”)) managed by a “qualified professional asset manager” or “QPAM” (within the meaning of Part VI of the QPAM Exemption), no employee benefit plan’s assets that are managed by the QPAM in such investment fund, when combined with the assets of all other employee benefit plans established or maintained by the same employer or by an affiliate (within the meaning of Part VI(c)(1) of the QPAM Exemption) of such employer or by the same employee organization and managed by such QPAM, represent more than 20% of the total client assets managed by such QPAM, the conditions of Part I(c) and (g) of the QPAM Exemption are satisfied, neither the QPAM nor a Person controlling or controlled by the QPAM maintains an ownership interest in the Issuer that would cause the QPAM and the Issuer to be “related” within the meaning of Part VI(h) of the QPAM Exemption and (1) the identity of such QPAM and (2) the names of any employee benefit plans whose assets in the investment fund, when combined with the assets of all other employee benefit plans established or maintained by the same employer or by an affiliate (within the meaning of Part VI(c)(1) of the QPAM Exemption) of such employer or by the same employee organization, represent 10% or more of the assets of such investment fund, have been disclosed to the Issuer in writing pursuant to this clause (d); or

 

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(e) the Source constitutes assets of a “plan(s)” (within the meaning of Part IV(h) of PTE 96-23 (the “INHAM Exemption”)) managed by an “in-house asset manager” or “INHAM” (within the meaning of Part IV(a) of the INHAM Exemption), the conditions of Part I(a), (g) and (h) of the INHAM Exemption are satisfied, neither the INHAM nor a Person controlling or controlled by the INHAM (applying the definition of “control” in Part IV(d)(3) of the INHAM Exemption) owns a 10% or more interest in the Issuer and (1) the identity of such INHAM and (2) the name(s) of the employee benefit plan(s) whose assets constitute the Source have been disclosed to the Issuer in writing pursuant to this clause (e); or

(f) the Source is a governmental plan; or

(g) the Source is one or more employee benefit plans, or a separate account or trust fund comprised of one or more employee benefit plans, each of which has been identified to the Issuer in writing pursuant to this clause (g); or

(h) the Source does not include assets of any employee benefit plan, other than a plan exempt from the coverage of ERISA.

As used in this Section 6.3, the terms “employee benefit plan,” “governmental plan,” and “separate account” shall have the respective meanings assigned to such terms in section 3 of ERISA.

SECTION 7. INFORMATION AS TO CONSTITUENT COMPANIES.

Section 7.1 Financial and Business Information. The Constituent Companies shall deliver to each holder of a Note that is an Institutional Investor:

(a) Quarterly Statements — within 45 days (or such shorter period as is the earlier of (x) 15 days greater than the period applicable to the filing of the Parent Guarantor’s Quarterly Report on Form 10-Q (the “Form 10-Q”) with the SEC regardless of whether the Parent Guarantor is subject to the filing requirements thereof and (y) the date by which such financial statements are required to be delivered under any Principal Credit Facility or the date on which such corresponding financial statements are delivered under any Principal Credit Facility if such delivery occurs earlier than such required delivery date) after the end of each quarterly fiscal period in each fiscal year of the Parent Guarantor (other than the last quarterly fiscal period of each such fiscal year), duplicate copies of,

(1) a consolidated balance sheet of the Parent Guarantor and its Subsidiaries as at the end of such quarter, and

(2) consolidated statements of income, changes in shareholders’ equity and cash flows of the Parent Guarantor and its Subsidiaries, for such quarter and (in the case of the second and third quarters) for the portion of the fiscal year ending with such quarter,

 

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setting forth in each case in comparative form the figures for the corresponding periods in the previous fiscal year, all in reasonable detail, prepared in accordance with GAAP applicable to quarterly financial statements generally, and certified by a Senior Financial Officer of the Parent Guarantor as fairly presenting, in all material respects, the financial position of the companies being reported on and their results of operations and cash flows, subject to changes resulting from year-end adjustments;

(b) Annual Statements — within 90 days (or such shorter period as is the earlier of (x) 15 days greater than the period applicable to the filing of the Parent Guarantor’s Annual Report on Form 10-K (the “Form 10-K”) with the SEC regardless of whether the Parent Guarantor is subject to the filing requirements thereof and (y) the date by which such financial statements are required to be delivered under any Principal Credit Facility or the date on which such corresponding financial statements are delivered under any Principal Credit Facility if such delivery occurs earlier than such required delivery date) after the end of each fiscal year of the Parent Guarantor, duplicate copies of

(1) a consolidated balance sheet of the Parent Guarantor and its Subsidiaries as at the end of such year, and

(2) consolidated statements of income, changes in shareholders’ equity and cash flows of the Parent Guarantor and its Subsidiaries for such year,

setting forth in each case in comparative form the figures for the previous fiscal year, all in reasonable detail, prepared in accordance with GAAP, and accompanied by an opinion thereon (without a “going concern” or similar qualification or exception and without any qualification or exception as to the scope of the audit on which such opinion is based) of independent public accountants of recognized national standing, which opinion shall state that such financial statements present fairly, in all material respects, the financial position of the companies being reported upon and their results of operations and cash flows and have been prepared in conformity with GAAP, and that the examination of such accountants in connection with such financial statements has been made in accordance with generally accepted auditing standards, and that such audit provides a reasonable basis for such opinion in the circumstances;

(c) SEC and Other Reports — promptly upon their becoming available, one copy of (1) each financial statement, report, notice, proxy statement or similar document sent by the Parent Guarantor or any Subsidiary (i) to its creditors under any Principal Credit Facility (including documentation that, on the date of this Agreement, is required to be provided pursuant to Section 8.2(a)(1)(y) of the Bank Credit Agreement, but excluding information sent to such creditors in the ordinary course of administration of a credit facility, such as information relating to pricing and borrowing availability) or (ii) to its public Securities holders generally, and (2) each regular or periodic report, each registration statement (without exhibits except as expressly requested by such holder), and each prospectus and all amendments thereto filed by the Parent Guarantor or any Subsidiary with the SEC and of all press releases and other statements made available generally by the Parent Guarantor or any Subsidiary to the public concerning developments that are Material;

 

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(d) Notice of Default or Event of Default — promptly, and in any event within five days after a Responsible Officer of either Constituent Company becoming aware of the existence of any Default or Event of Default or that any Person has given any notice or taken any action with respect to a claimed default hereunder or that any Person has given any notice or taken any action with respect to a claimed default of the type referred to in Section 11(f), a written notice specifying the nature and period of existence thereof and what action the Constituent Companies are taking or propose to take with respect thereto;

(e) Employee Benefits Matters — promptly, and in any event within five days after a Responsible Officer of either Constituent Company becoming aware of any of the following, a written notice setting forth the nature thereof and the action, if any, that the Parent Guarantor or an ERISA Affiliate proposes to take with respect thereto:

(1) with respect to any Plan, any reportable event, as defined in section 4043(c) of ERISA and the regulations thereunder, for which notice thereof has not been waived pursuant to such regulations as in effect on the date of this Agreement;

(2) the taking by the PBGC of steps to institute, or the threatening by the PBGC of the institution of, proceedings under section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Plan, or the receipt by the Parent Guarantor or any ERISA Affiliate of a notice from a Multiemployer Plan that such action has been taken by the PBGC with respect to such Multiemployer Plan;

(3) any event, transaction or condition that could result in the incurrence of any liability by the Parent Guarantor or any ERISA Affiliate pursuant to Title I or IV of ERISA or the penalty or excise tax provisions of the Code relating to employee benefit plans, or in the imposition of any Lien on any of the rights, properties or assets of the Parent Guarantor or any ERISA Affiliate pursuant to Title I or IV of ERISA or such penalty or excise tax provisions, if such liability or Lien, taken together with any other such liabilities or Liens then existing, could reasonably be expected to have a Material Adverse Effect; or

(4) receipt of notice of the imposition of a Material financial penalty (which for this purpose shall mean any tax, penalty or other liability, whether by way of indemnity or otherwise) with respect to one or more Non-U.S. Plans;

(f) Notices from Governmental Authority — promptly, and in any event within five Business Days after receipt thereof, (1) copies of each notice or other correspondence received from the SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or possible investigation or other inquiry by such agency regarding financial or other operational results of the Parent Guarantor or any Subsidiary, and (2) copies of any other notice to the Parent Guarantor or any Subsidiary from any Governmental Authority relating to any order, ruling, statute or other law or regulation, in each case with respect to clauses (1) and (2) that could reasonably be expected to have a Material Adverse Effect;

 

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(g) Resignation or Replacement of Auditors — within 10 days following the date on which the Parent Guarantor’s auditors resign or the Parent Guarantor elects to change auditors, as the case may be, notification thereof, together with such further information as the Required Holders may reasonably request; and

(h) Requested Information — promptly, such additional financial and other information regarding the operations, business affairs, financial condition, assets or properties of the Parent Guarantor or any of its Subsidiaries or relating to the ability of the Issuer to perform its obligations hereunder and under the Notes, the ability of the Parent Guarantor to perform its obligations hereunder or the ability of any Subsidiary Guarantor to perform its obligations under the Subsidiary Guaranty Agreement as from time to time may be reasonably requested by any such holder of a Note.

Section 7.2 Officers Certificate. Each set of financial statements delivered to a holder of a Note pursuant to Section 7.1(a) or Section 7.1(b) shall be accompanied by a certificate of a Senior Financial Officer of the Parent Guarantor:

(a) Covenant Compliance — setting forth the information from such financial statements that is required in order to establish whether the Constituent Companies were in compliance with the requirements of Section 10.6 and each Incorporated Covenant during the quarterly or annual period covered by the financial statements then being furnished (including with respect to each such provision that involves mathematical calculations, the information from such financial statements that is required to perform such calculations) and detailed calculations of the maximum or minimum amount, ratio or percentage, as the case may be, permissible under the terms of such Section, and the calculation of the amount, ratio or percentage then in existence. In the event that the Parent Guarantor or any Subsidiary has made an election to measure any financial liability using fair value (which election is being disregarded for purposes of determining compliance with this Agreement pursuant to Section 23.2) as to the period covered by any such financial statement, such Senior Financial Officer’s certificate as to such period shall include a reconciliation from GAAP with respect to such election;

(b) Event of Default — certifying that such Senior Financial Officer has reviewed the relevant terms hereof and has made, or caused to be made, under his or her supervision, a review of the transactions and conditions of the Parent Guarantor and its Subsidiaries from the beginning of the quarterly or annual period covered by the statements then being furnished to the date of the certificate and that such review shall not have disclosed the existence during such period of any condition or event that constitutes a Default or an Event of Default or, if any such condition or event existed or exists (including any such event or condition resulting from the failure of the Parent Guarantor or any Subsidiary to comply with any Environmental Law), specifying the nature and period of existence thereof and what action the Constituent Companies shall have taken or propose to take with respect thereto; and

 

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(c) Subsidiary Guarantors – describing any changes to the composition of the Subsidiary Guarantor group, if any, during the quarterly or annual period covered by the statements then being furnished.

Section 7.3 Visitation. Each Constituent Company shall permit the representatives of each holder of a Note that is an Institutional Investor:

(a) No Default — if no Default or Event of Default then exists, at the expense of such holder and upon reasonable prior notice to such Constituent Company and no more than once in any calendar year, to visit the principal executive office of such Constituent Company, to discuss the affairs, finances and accounts of such Constituent Company and its Subsidiaries with such Constituent Company’s officers, and (with the consent of such Constituent Company, which consent will not be unreasonably withheld) to visit the other offices and properties of such Constituent Company and each Subsidiary; and

(b) Default — if a Default or Event of Default then exists, at the expense of the Constituent Companies to visit and inspect any of the offices or properties of such Constituent Company or any Subsidiary, to examine all their respective books of account, records, reports and other papers, to make copies and extracts therefrom, and to discuss their respective affairs, finances and accounts with their respective officers and, in the presence of the Constituent Companies if the Constituent Companies shall so request, their independent public accountants (and by this provision each Constituent Company authorizes said accountants to discuss the affairs, finances and accounts of such Constituent Company and its Subsidiaries), all at such times and as often as may be requested in writing.

Section 7.4 Electronic Delivery. Financial statements, opinions of independent certified public accountants, other information and Officer’s Certificates that are required to be delivered by a Constituent Company pursuant to Sections 7.1(a), (b) or (c) and Section 7.2 shall be deemed to have been delivered if such Constituent Company satisfies any of the following requirements with respect thereto:

(a) such financial statements satisfying the requirements of Section 7.1(a) or (b) and related Officer’s Certificate satisfying the requirements of Section 7.2 and any other information required under Section 7.1(c) are delivered to each holder of a Note by e-mail at the e-mail address set forth in such holder’s Purchaser Schedule or as communicated from time to time in a separate writing delivered to the Constituent Companies;

(b) the Parent Guarantor shall have timely filed such Form 10–Q or Form 10–K, satisfying the requirements of Section 7.1(a) or Section 7.1(b), as the case may be, with the SEC on EDGAR and shall have made such form and the related Officer’s Certificate satisfying the requirements of Section 7.2 available on its home page on the internet, which is located at www.americold.com as of the date of this Agreement;

 

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(c) such financial statements satisfying the requirements of Section 7.1(a) or Section 7.1(b) and related Officer’s Certificate satisfying the requirements of Section 7.2 and any other information required under Section 7.1(c) are timely posted by or on behalf of such Constituent Company on IntraLinks or on any other similar website to which each holder of Notes has free access; or

(d) such Constituent Company shall have timely filed any of the items referred to in Section 7.1(c) with the SEC on EDGAR and shall have made such items available on its home page on the internet or on IntraLinks or on any other similar website to which each holder of Notes has free access;

provided however, that in no case shall access to such financial statements, other information and Officer’s Certificates be conditioned upon any waiver or other agreement or consent (other than confidentiality provisions consistent with Section 21); provided further, that in the case of any of clauses (b), (c) or (d), except to the extent the relevant information has been filed with the SEC on EDGAR, such Constituent Company shall have given each holder of a Note prior written notice, which may be by e-mail or in accordance with Section 19, of such posting or filing in connection with each delivery, provided further, that upon request of any holder to receive paper copies of such forms, financial statements, other information and Officer’s Certificates or to receive them by e-mail, such Constituent Company will promptly e-mail them or deliver such paper copies, as the case may be, to such holder; provided, however, that so long as the Constituent Companies have otherwise complied with the requirements of this Section 7, failure to send e-mailed or paper copies within the time required by this particular provision of this Section 7 shall not constitute a Default or Event of Default hereunder.

Section 7.5 Limitation on Disclosure Obligation. Neither Constituent Company nor any Subsidiary shall be required to disclose the following information pursuant to Section 7.1(c)(1)(i), 7.1(h) or 7.3:

(a) information that constitutes trade secrets;

(b) information that either Constituent Company determines after consultation with counsel qualified to advise on such matters that, notwithstanding the confidentiality requirements of Section 21, it would be prohibited from disclosing by applicable law or regulations without making public disclosure thereof;

(c) information that either Constituent Company determines after consultation with counsel qualified to advise on such matters is privileged attorney-client work product and the disclosure of which would waive such privilege to the detriment of either Constituent Companies or any Subsidiary (it being understood that the Constituent Companies will act in good faith not to use the terms of this clause (c) merely to shield the Constituent Companies from making disclosures otherwise required to be made under this Agreement); or

(d) information that, notwithstanding the confidentiality requirements of Section 21, either Constituent Company is prohibited from disclosing by the terms of an obligation of confidentiality contained in any agreement with any non-Affiliate binding upon the Company and not entered into in contemplation of this clause (b), provided that the Company shall use commercially reasonable efforts to obtain consent from the party in whose favor the obligation of confidentiality was made to permit the disclosure of the relevant information and provided, further, that the Constituent Companies have received a written opinion of counsel confirming that disclosure of such information without consent from such other contractual party would constitute a breach of such agreement.

 

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Promptly after determining that a Constituent Company or a Subsidiary is not permitted to disclose any information as a result of the limitations described in this Section 7.5, the Constituent Companies will provide each of the holders with an Officer’s Certificate describing generally the requested information that such Constituent Company or such Subsidiary is prohibited from disclosing pursuant to this Section 7.5 and the circumstances under which such Constituent Company or such Subsidiary is not permitted to disclose such information.

SECTION 8. PAYMENT AND PREPAYMENT OF THE NOTES.

Section 8.1 Maturity. As provided therein, the entire unpaid principal balance of each Note shall be due and payable on the Maturity Date thereof.

Section 8.2 Optional Prepayments with Make-Whole Amount. The Issuer may, at its option, upon notice as provided below, prepay at any time all, or from time to time any part of, the Notes, in an amount not less than 5% of the aggregate principal amount of the Notes then outstanding in the case of a partial prepayment, at 100% of the principal amount so prepaid, and the Make-Whole Amount determined for the prepayment date with respect to such principal amount; provided that, so long as no Default or Event of Default shall then exist or would arise as a result thereof, no Make-Whole Amount shall be required in respect of the prepayment of any Note made pursuant to this Section 8.2 within 60 days of the Maturity Date thereof. The Issuer will give each holder of Notes written notice of each optional prepayment under this Section 8.2 not less than 10 days and not more than 60 days prior to the date fixed for such prepayment unless the Issuer and the Required Holders agree to another time period pursuant to Section 18. Each such notice shall specify such date (which shall be a Business Day), the aggregate principal amount of the Notes to be prepaid on such date, the principal amount of each Note held by such holder to be prepaid (determined in accordance with Section 8.3), and the interest to be paid on the prepayment date with respect to such principal amount being prepaid, and shall be accompanied by a certificate of a Senior Financial Officer of the Issuer as to the estimated Make-Whole Amount due in connection with such prepayment (calculated as if the date of such notice were the date of the prepayment), setting forth the details of such computation. Two Business Days prior to such prepayment, the Issuer shall deliver to each holder of Notes a certificate of a Senior Financial Officer of the Issuer specifying the calculation of such Make-Whole Amount as of the specified prepayment date.

Section 8.3 Allocation of Partial Prepayments. In the case of each partial prepayment of the Notes pursuant to Section 8.2, the principal amount of the Notes to be prepaid shall be allocated among all of the Notes at the time outstanding in proportion, as nearly as practicable, to the respective unpaid principal amounts thereof not theretofore called for prepayment. In the case of any purchase or prepayment of the Notes pursuant to Section 8.5 or Section 8.7, the principal amount of the Notes to be purchased or prepaid shall be allocated among all of the Notes that have accepted such offer of purchase or prepayment.

 

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Section 8.4 Maturity; Surrender, Etc. In the case of each prepayment of Notes pursuant to this Section 8, the principal amount of each Note to be prepaid shall mature and become due and payable on the date fixed for such prepayment, together with interest on such principal amount accrued to such date and the applicable Make-Whole Amount, if any. From and after such date, unless the Issuer shall fail to pay such principal amount when so due and payable, together with the interest and Make-Whole Amount, if any, as aforesaid, interest on such principal amount shall cease to accrue. Any Note paid or prepaid in full shall be surrendered to the Issuer and cancelled and shall not be reissued, and no Note shall be issued in lieu of any prepaid principal amount of any Note.

Section 8.5 Purchase of Notes. The Issuer will not, and will not permit any Affiliate to, purchase, redeem, prepay or otherwise acquire, directly or indirectly, any of the outstanding Notes except (a) upon the payment or prepayment of the Notes in accordance with the terms of this Agreement and the Notes or (b) pursuant to an offer to purchase made by the Issuer or an Affiliate pro rata to the holders of all Notes at the time outstanding upon the same terms and conditions. Any such offer shall provide each holder with sufficient information to enable it to make an informed decision with respect to such offer, and shall remain open for at least 10 Business Days. If the holders of more than 50% of the principal amount of the Notes then outstanding accept such offer, the Issuer shall promptly notify the remaining holders of such fact and the expiration date for the acceptance by holders of Notes of such offer shall be extended by the number of days necessary to give each such remaining holder at least 10 Business Days from its receipt of such notice to accept such offer. The Issuer will promptly cancel all Notes acquired by it or any Affiliate pursuant to any payment, prepayment or purchase of Notes pursuant to this Agreement and no Notes may be issued in substitution or exchange for any such Notes.

Section 8.6 Make-Whole Amount.

The term “Make-Whole Amount” means, with respect to any Note, an amount equal to the excess, if any, of the Discounted Value of the Remaining Scheduled Payments with respect to the Called Principal of such Note over the amount of such Called Principal, provided that the Make-Whole Amount may in no event be less than zero. For the purposes of determining the Make-Whole Amount, the following terms have the following meanings: “Called Principal” means, with respect to any Note, the principal of such Note that is to be prepaid pursuant to Section 8.2 or has become or is declared to be immediately due and payable pursuant to Section 12.1, as the context requires.

“Discounted Value” means, with respect to the Called Principal of any Note, the amount obtained by discounting all Remaining Scheduled Payments with respect to such Called Principal from their respective scheduled due dates to the Settlement Date with respect to such Called Principal, in accordance with accepted financial practice and at a discount factor (applied on the same periodic basis as that on which interest on the Notes is payable) equal to the Reinvestment Yield with respect to such Called Principal.

“Reinvestment Yield” means, with respect to the Called Principal of any Note, the sum of (a) 0.50% plus (b) the yield to maturity implied by the “Ask Yield(s)” reported as of 10:00 a.m. (New York City time) on the second Business Day preceding the Settlement Date with respect to such Called Principal, on the display designated as “Page PX1” (or such other display

 

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as may replace Page PX1) on Bloomberg Financial Markets for the most recently issued actively traded on-the-run U.S. Treasury securities (“Reported”) having a maturity equal to the Remaining Average Life of such Called Principal as of such Settlement Date. If there are no such U.S. Treasury securities Reported having a maturity equal to such Remaining Average Life, then such implied yield to maturity will be determined by (1) converting U.S. Treasury bill quotations to bond equivalent yields in accordance with accepted financial practice and (2) interpolating linearly between the “Ask Yields” Reported for the applicable most recently issued actively traded on-the-run U.S. Treasury securities with the maturities (i) closest to and greater than such Remaining Average Life and (ii) closest to and less than such Remaining Average Life. The Reinvestment Yield shall be rounded to the number of decimal places as appears in the interest rate of the applicable Note.

If such yields are not Reported or the yields Reported as of such time are not ascertainable (including by way of interpolation), then “Reinvestment Yield” means, with respect to the Called Principal of any Note, the sum of (A) 0.50% plus (B) the yield to maturity implied by the U.S. Treasury constant maturity yields reported, for the latest day for which such yields have been so reported as of the second Business Day preceding the Settlement Date with respect to such Called Principal, in Federal Reserve Statistical Release H.15 (or any comparable successor publication) for the U.S. Treasury constant maturity having a term equal to the Remaining Average Life of such Called Principal as of such Settlement Date. If there is no such U.S. Treasury constant maturity having a term equal to such Remaining Average Life, such implied yield to maturity will be determined by interpolating linearly between (I) the U.S. Treasury constant maturity so reported with the term closest to and greater than such Remaining Average Life and (II) the U.S. Treasury constant maturity so reported with the term closest to and less than such Remaining Average Life. The Reinvestment Yield shall be rounded to the number of decimal places as appears in the interest rate of the applicable Note.

“Remaining Average Life” means, with respect to any Called Principal, the number of years obtained by dividing (a) such Called Principal into (b) the sum of the products obtained by multiplying (1) the principal component of each Remaining Scheduled Payment with respect to such Called Principal by (2) the number of years, computed on the basis of a 360-day year comprised of twelve 30-day months and calculated to two decimal places, that will elapse between the Settlement Date with respect to such Called Principal and the scheduled due date of such Remaining Scheduled Payment.

“Remaining Scheduled Payments” means, with respect to the Called Principal of any Note, all payments of such Called Principal and interest thereon that would be due after the Settlement Date with respect to such Called Principal if no payment of such Called Principal were made prior to its scheduled due date, provided that if such Settlement Date is not a date on which interest payments are due to be made under the Notes, then the amount of the next succeeding scheduled interest payment will be reduced by the amount of interest accrued to such Settlement Date and required to be paid on such Settlement Date pursuant to Section 8.2 or Section 12.1.

“Settlement Date” means, with respect to the Called Principal of any Note, the date on which such Called Principal is to be prepaid pursuant to Section 8.2 or has become or is declared to be immediately due and payable pursuant to Section 12.1, as the context requires.

 

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Section 8.7 Offer to Prepay Notes in the Event of a Change of Control.

(a) Notice of Change of Control or Control Event. The Constituent Companies will, within 10 Business Days after any Responsible Officer of either thereof has knowledge of the occurrence of any Change of Control or any Control Event, give written notice of such Change of Control or Control Event to each holder of Notes unless notice in respect of such Change of Control (or the Change of Control contemplated by such Control Event) shall have been given pursuant to Section 8.7(b). If a Change of Control has occurred, such notice shall contain and constitute an offer by the Issuer to prepay Notes as described in Section 8.7(c) and shall be accompanied by the certificate described in Section 8.7(g).

(b) Condition to Company Action. The Parent Guarantor will not take any action that consummates or finalizes a Change of Control unless (1) at least 30 days prior to such action the Issuer shall have given to each holder of Notes written notice containing and constituting an offer to prepay Notes as described in Section 8.7(c), accompanied by the certificate described in Section 8.7(g), and (2) contemporaneously with such action, the Issuer prepays all Notes required to be prepaid in accordance with this Section 8.7.

(c) Offer to Prepay Notes. The offer to prepay Notes contemplated by Sections 8.7(a) and (b) shall be an offer to prepay, in accordance with and subject to this Section 8.7, all, but not less than all, Notes held by each holder on a date specified in such offer (the “Change of Control Proposed Prepayment Date”). If such Change of Control Proposed Prepayment Date is in connection with an offer contemplated by Section 8.7(a), such date shall be a Business Day not less than 30 days and not more than 60 days after the date of such offer (or if the Change of Control Proposed Prepayment Date shall not be specified in such offer, the Change of Control Proposed Prepayment Date shall be the Business Day nearest to the 30th day after the date of such offer).

(d) Acceptance; Rejection. A holder of Notes may accept or reject the offer to prepay made pursuant to this Section 8.7 by causing a notice of such acceptance or rejection to be delivered to the Issuer at least five Business Days prior to the Change of Control Proposed Prepayment Date. A failure by a holder of Notes to so respond to an offer to prepay made pursuant to this Section 8.7 shall be deemed to constitute a rejection of such offer by such holder.

(e) Prepayment. Prepayment of the Notes to be prepaid pursuant to this Section 8.7 shall be at 100% of the principal amount of such Notes, together with accrued and unpaid interest on such Notes accrued to the date of prepayment but without any Make-Whole Amount. The prepayment shall be made on the Change of Control Proposed Prepayment Date, except as provided by Section 8.7(f).

(f) Deferral Pending Change of Control. The obligation of the Issuer to prepay Notes pursuant to the offers required by Section 8.7(c) and accepted in accordance with Section 8.7(d) is subject to the occurrence of the Change of Control in respect of which such offers and acceptances shall have been made. In the event that such Change of Control does not occur on the Change of Control Proposed Prepayment Date in respect

 

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thereof, the prepayment shall be deferred until, and shall be made on the date on which, such Change of Control occurs. The Constituent Companies shall keep each holder of Notes reasonably and timely informed of (1) any such deferral of the date of prepayment, (2) the date on which such Change of Control and the prepayment are expected to occur and (3) any determination by the Parent Guarantor that efforts to effect such Change of Control have ceased or been abandoned (in which case the offers and acceptances made pursuant to this Section 8.7 in respect of such Change of Control automatically shall be deemed rescinded without penalty or other liability).

(g) Officer’s Certificate. Each offer to prepay the Notes pursuant to this Section 8.7 shall be accompanied by a certificate, executed by a Senior Financial Officer of the Issuer and dated the date of such offer, specifying (1) the Change of Control Proposed Prepayment Date, (2) that such offer is made pursuant to this Section 8.7 and that failure by a holder to respond to such offer by the deadline established in Section 8.7(d) shall result in such offer to such holder being deemed rejected, (3) the principal amount of each Note offered to be prepaid, (4) the interest that would be due on each Note offered to be prepaid, accrued to the Change of Control Proposed Prepayment Date, (5) that the conditions of this Section 8.7 have been fulfilled and (6) in reasonable detail, the nature and date of the Change of Control.

(h) Change of Control Defined. “Change of Control” means the occurrence of any of the following events:

(1) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of 35% or more of the outstanding equity securities of the Parent Guarantor entitled to vote for members of the board of directors or equivalent governing body of the Parent Guarantor; or

(2) occupation of a majority of the seats (other than vacant seats) on the board of trustees of the Parent Guarantor by Persons who were neither (i) nominated by the board of trustees of the Parent Guarantor nor (ii) appointed by directors so nominated.

(i) Control Event Defined. “Control Event” means the execution of any definitive written agreement which, when fully performed by the parties thereto, would result in a Change of Control.

Section 8.8 Payments Due on Non-Business Days. Anything in this Agreement or the Notes to the contrary notwithstanding, (a) except as set forth in clause (b), any payment of interest on any Note that is due on a date that is not a Business Day shall be made on the next succeeding Business Day without including the additional days elapsed in the computation of the interest payable on such next succeeding Business Day; and (b) any payment of principal of or Make-Whole Amount on any Note (including principal due on the Maturity Date of such Note) that is due on a date that is not a Business Day shall be made on the next succeeding Business Day and shall include the additional days elapsed in the computation of interest payable on such next succeeding Business Day.

 

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SECTION 9. AFFIRMATIVE COVENANTS.

The Constituent Companies covenant that so long as any of the Notes are outstanding:

Section 9.1 Compliance with Laws. Without limiting Section 10.4, each Constituent Company will, and will cause each of its Subsidiaries to, comply with all laws, ordinances or governmental rules or regulations to which each of them is subject (including ERISA, Environmental Laws, the USA PATRIOT Act and the other laws and regulations that are referred to in Section 5.16) and will obtain and maintain in effect all licenses, certificates, permits, franchises and other governmental authorizations necessary to the ownership of their respective properties or to the conduct of their respective businesses, in each case to the extent necessary to ensure that non-compliance with such laws, ordinances or governmental rules or regulations or failures to obtain or maintain in effect such licenses, certificates, permits, franchises and other governmental authorizations could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

Section 9.2 Insurance. Each Constituent Company will, and will cause each of its Subsidiaries to, maintain, with financially sound and reputable insurers, insurance with respect to their respective properties and businesses against such casualties and contingencies, of such types, on such terms and in such amounts (including deductibles, co-insurance and self-insurance, if adequate reserves are maintained with respect thereto) as is customary in the case of entities of established reputations engaged in the same or a similar business and similarly situated.

Section 9.3 Maintenance of Properties. Each Constituent Company will, and will cause each of its Subsidiaries to, maintain and keep, or cause to be maintained and kept, their respective properties in good repair, working order and condition (other than ordinary wear and tear), so that the business carried on in connection therewith may be properly conducted at all times, provided that this Section 9.3 shall not prevent the Parent Guarantor or any Subsidiary from discontinuing the operation and the maintenance of any of its properties if such discontinuance is desirable in the conduct of its business and the Parent Guarantor has concluded that such discontinuance could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

Section 9.4 Payment of Taxes and Claims. Each Constituent Company will, and will cause each of its Subsidiaries to, file all federal, state and other material tax returns and reports required to be filed in any jurisdiction and to pay and discharge all taxes shown to be due and payable on such returns and all other taxes, assessments, governmental charges, or levies imposed on them or any of their properties, assets, income or franchises, to the extent the same have become due and payable and before they have become delinquent and all claims for which sums have become due and payable that have or might become a Lien on properties or assets of the Parent Guarantor or any Subsidiary, provided that neither the Parent Guarantor nor any Subsidiary need pay any such tax, assessment, charge, levy or claim if (a) the amount, applicability or validity thereof is contested by the Parent Guarantor or such Subsidiary on a timely basis in good faith and in appropriate proceedings, and the Parent Guarantor or a Subsidiary has established adequate reserves therefor in accordance with GAAP on the books of the Parent Guarantor or such Subsidiary or (b) the nonpayment of all such taxes, assessments, charges, levies and claims could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

 

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Section 9.5 Corporate Existence, Etc. Subject to Section 10.2, each Constituent Company will at all times preserve and keep its organizational existence in full force and effect. Subject to Section 10.2, each Constituent Company will at all times preserve and keep in full force and effect the corporate or other organizational existence of each of its Subsidiaries (unless merged into the Parent Guarantor or a Wholly-Owned Subsidiary) and all rights and franchises of the Parent Guarantor and its Subsidiaries unless, in the good faith judgment of the Parent Guarantor, the termination of or failure to preserve and keep in full force and effect such corporate existence, right or franchise could not, individually or in the aggregate, have a Material Adverse Effect.

Section 9.6 Books and Records. Each Constituent Company will, and will cause each of its Subsidiaries to, maintain proper books of record and account in conformity with GAAP and all applicable requirements of any Governmental Authority having legal or regulatory jurisdiction over such Constituent Company or such Subsidiary, as the case may be. Each Constituent Company will, and will cause each of its Subsidiaries to, keep books, records and accounts which, in reasonable detail, accurately reflect all transactions and dispositions of assets. Each Constituent Company and its Subsidiaries have devised a system of internal accounting controls (which may be on a consolidated basis or organized based on profit centers) sufficient to provide reasonable assurances that their respective books, records, and accounts accurately reflect all transactions and dispositions of assets and each Constituent Company will, and will cause each of its Subsidiaries to, continue to maintain such system.

Section 9.7 REIT Status; Stock Exchange Listing. The Parent Guarantor will (a) continue to be treated as a REIT and (b) cause its common Capital Stock to be listed and to remain listed on the New York Stock Exchange or the NASDAQ Stock Market.

Section 9.8 Ownership.

(a) The Parent Guarantor will at all times be the sole general partner of the Issuer.

(b) The Parent Guarantor will not permit any Persons (other than itself) to own, directly or indirectly, Capital Stock of the Issuer that, if exchanged for Capital Stock of the Parent Guarantor, would result in a Change of Control under clause (1) of the definition thereof.

(c) The Issuer will own, directly or indirectly, free of any Liens, encumbrances or adverse claims, 100% of the Capital Stock of each Subsidiary Guarantor and each Qualified Asset Holder (except as otherwise expressly permitted by this Agreement).

 

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Section 9.9 Subsidiary Guarantors.

(a) The Parent Guarantor will cause each of its Subsidiaries that guarantees or otherwise becomes liable at any time, whether as a borrower or an additional or co-borrower or otherwise, for or in respect of any Indebtedness under any Principal Credit Facility (including any Subsidiary that was a party to the Subsidiary Guaranty Agreement but subsequently (x) was released from the Subsidiary Guaranty Agreement and (y) has guaranteed or otherwise became liable under any Principal Credit Facility), to concurrently therewith:

(1) if the Subsidiary Guaranty Agreement entered into on the date of the Closing is then outstanding, execute a supplement to the Subsidiary Guaranty Agreement in the form of Exhibit A thereto (a “Subsidiary Guaranty Supplement”) or, if all Subsidiary Guarantors have been released pursuant to Section 9.9(b) and such Subsidiary Guaranty Agreement has been terminated, enter into a new subsidiary guaranty agreement substantially in the form of Exhibit SGA (a “New Subsidiary Guaranty Agreement”) or, if a New Subsidiary Guaranty Agreement is then in effect, a supplement to such New Subsidiary Guaranty in the form of Exhibit A thereto (a “New Subsidiary Guaranty Supplement”); and

(2) deliver the following to each holder of a Note:

(i) an executed counterpart of such Subsidiary Guaranty Supplement or such New Subsidiary Guaranty Agreement or such New Subsidiary Guaranty Supplement, as the case may be;

(ii) a certificate signed by an authorized responsible officer of such Subsidiary containing representations and warranties on behalf of such Subsidiary to the same effect, mutatis mutandis, as those contained in Sections 5.1, 5.2, 5.6 and 5.7 of this Agreement (but with respect to such Subsidiary, such Subsidiary Guaranty Supplement and the Subsidiary Guaranty Agreement or such New Subsidiary Guaranty Agreement or such New Subsidiary Guaranty Supplement and the New Subsidiary Guaranty Agreement, as the case may be);

(iii) all documents as may be reasonably requested by the Required Holders to evidence the due organization, continuing existence and, where applicable, good standing of such Subsidiary and the due authorization by all requisite action on the part of such Subsidiary of the execution and delivery of such Subsidiary Guaranty Supplement, such New Subsidiary Guaranty Agreement or such New Subsidiary Guaranty Supplement and the performance by such Subsidiary of its obligations under the Subsidiary Guaranty Agreement or the New Subsidiary Guaranty Agreement, as the case may be; and

(iv) an opinion of counsel reasonably satisfactory to the Required Holders covering such matters relating to such Subsidiary, such Subsidiary Guaranty Supplement and the Subsidiary Guaranty Agreement or such New Subsidiary Guaranty Agreement or such New Subsidiary Guaranty Supplement and the New Subsidiary Guaranty Agreement, as the case may be, as the Required Holders may reasonably request.

 

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(b) At the election of the Parent Guarantor and by written notice to each holder of Notes, any Subsidiary Guarantor that is a party to the Subsidiary Guaranty Agreement may be discharged from all of its obligations and liabilities under the Subsidiary Guaranty Agreement and shall be automatically released from its obligations thereunder without the need for the execution or delivery of any other document by the holders, provided that (1) if such Subsidiary Guarantor is a guarantor or is otherwise liable for or in respect of any Principal Credit Facility, then such Subsidiary Guarantor has been released and discharged (or will be released and discharged concurrently with the release of such Subsidiary Guarantor under the Subsidiary Guaranty Agreement) under such Principal Credit Facility, (2) at the time of, and after giving effect to, such release and discharge, no Default or Event of Default shall be existing, (3) no amount is then due and payable under the Subsidiary Guaranty Agreement, (4) if in return for such Subsidiary Guarantor being released and discharged under any Principal Credit Facility, any fee or other form of consideration is given to any holder of Indebtedness under such Principal Credit Facility for such release (other than (i) commitment fees, upfront fees, ticking fees, alternate transaction fees and similar fees given in consideration of a new extension of credit in connection with an extension or replacement of such Principal Credit Facility, (ii) amounts paid in satisfaction of principal or interest under such Principal Credit Facility and (iii) structuring, arrangement or similar fees solely for the account of the agents or arrangers under such Principal Credit Facility in connection with such release and discharge), the holders of the Notes shall receive equivalent consideration substantially concurrently therewith and (5) each holder shall have received a certificate of a Responsible Officer certifying as to the matters set forth in clauses (1) through (4).

Section 9.10 Most Favored Lender Provision. If at any time a Principal Credit Facility or any guaranty in respect thereof shall include any Financial Covenant and such provision is not expressly contained in Section 10.6 on the date of the Closing (any such provision, together with any related definitions (including, any term defined therein with reference to the application of GAAP, as identified in such Principal Credit Facility), an Incorporated Covenant), then the Company shall promptly, and in any event within 10 Business Days thereof, provide a Most Favored Lender Notice with respect to each such Incorporated Covenant; provided that a Most Favored Lender Notice is not required to be given in the case of any Incorporated Covenant incorporated herein on the date of the Closing. Thereupon, unless waived in writing by the Required Holders within 10 days of the Purchasers’ and holders’ receipt of such notice, such Incorporated Covenant shall be deemed incorporated by reference into this Agreement, mutatis mutandis, as if set forth fully herein, effective (a) in the case of any Incorporated Covenant effective on the date of the Closing, as of the such date, and (b) in the case of any Incorporated Covenant effective after the date of the Closing, as of the date when such Incorporated Covenant became effective under such Principal Credit Facility. Any Incorporated Covenant incorporated into this Agreement pursuant to this provision (1) shall remain unchanged herein notwithstanding any temporary waiver of such Incorporated Covenant under the relevant Principal Credit Facility, (2) shall be deemed automatically amended herein to reflect any subsequent amendments agreed and implemented in relation to such Incorporated

 

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Covenant under the relevant Principal Credit Facility and (3) shall be deemed deleted from this Agreement at such time as such Incorporated Covenant is deleted or otherwise removed from or is no longer in effect under or pursuant to the relevant Principal Credit Facility or if the relevant Principal Credit Facility has been terminated; provided that (i) if in return for any such Incorporated Covenant ceasing to be in effect or being deleted or being so amended or modified in such Principal Credit Facility, any fee or other form of consideration (other than (A) commitment fees, upfront fees, ticking fees, alternate transaction fees and similar fees given in consideration of a new extension of credit in connection with an extension or replacement of such Principal Credit Facility, (B) amounts paid in satisfaction of principal or interest under such Principal Credit Facility and (C) structuring, arrangement or similar fees solely for the account of the agents or arrangers under such Principal Credit Facility in connection with such deletion, amendment or modification) is given or agreed to be given to any holder of Indebtedness under such Principal Credit Facility, then the Constituent Companies shall pay or agree to pay to the holders of the Notes equivalent consideration, determined on a pro rata basis in proportion to the relative outstanding principal amount of the Notes and the principal amount of Indebtedness outstanding under such Principal Credit Facility, substantially concurrently therewith; (ii) no Incorporated Covenant shall be so deemed automatically amended or deleted during any time that a Default or Event of Default has occurred and is continuing; and (iii) no Incorporated Covenant shall be so deemed automatically amended in a manner that would cause it to become less restrictive or deleted, unless the Constituent Companies shall have first provided notice thereof to each Purchaser and holder of the Notes. In determining whether a breach of any Financial Covenant incorporated by reference into this Agreement pursuant to this Section 9.10 shall constitute an Event of Default, the period of grace, if any, applicable to such Incorporated Covenant in the relevant Principal Credit Facility (notwithstanding the grace period set forth in Section 11(d)) shall apply.

Section 9.11 Rating on the Notes. The Issuer shall at all times maintain a Debt Rating for the Notes from an NRSRO. Evidence of such Debt Rating shall (a) be delivered by the Issuer to the holders of the Notes (1) at least annually (but not more than 30 days prior to each anniversary of the date of the Closing) and (2) promptly upon any change in such Debt Rating, (b) set forth the Debt Rating for the Notes, (c) refer to each Private Placement Number issued by CUSIP Global Services, managed on behalf of the American Bankers Association by S&P Global Market Intelligence, in respect of such Notes, (d) state that such Debt Rating addresses the likelihood of payment of both the principal and interest of such Notes, (e) not include any prohibition against sharing such evidence with the SVO or any other regulatory authority having jurisdiction over the holders of the Notes, and (f) include such other information relating to such Debt Rating as may be required from time to time by the SVO or any other regulatory authority having jurisdiction over the holders of the Notes.

 

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SECTION 10. NEGATIVE COVENANTS.

The Constituent Companies covenant that so long as any of the Notes are outstanding:

Section 10.1 Transactions with Affiliates. The Constituent Companies will not, and will not permit any Subsidiary to, enter into directly or indirectly any transaction or group of related transactions (including the purchase, lease, sale or exchange of properties of any kind or the rendering of any service) with any Affiliate (other than a Constituent Company or another Subsidiary), except: (a) arrangements in respect of shared services, joint procurement, corporate expense allocation and information technology licensing; (b) the consummation of the transactions contemplated by this Agreement and the payment of the transaction costs in connection therewith, and as otherwise permitted by this Agreement; (c) if approved by the governing body of such Person in accordance with applicable law, any indemnity provided for the benefit of directors of such Person; (d) the payment of fees, expenses, compensation or employee benefit arrangements to managers, consultants, employees, officers and outside directors of such Person; and (e) in the ordinary course and pursuant to the reasonable requirements of the applicable Constituent Company’s or such Subsidiary’s business and upon fair and reasonable terms no less favorable to the applicable Constituent Company or such Subsidiary than would be obtainable in a comparable arm’s-length transaction with a Person not an Affiliate.

Section 10.2 Merger, Consolidation, Etc. The Constituent Companies will not, and will not permit any Subsidiary Guarantor or Qualified Asset Holder to, consolidate with or merge with any other Person or convey, transfer or lease all or substantially all of its assets in a single transaction or series of transactions to any Person unless:

(a) in the case of any such transaction involving the Issuer, the successor formed by such consolidation or the survivor of such merger or the Person that acquires by conveyance, transfer or lease all or substantially all of the assets of the Issuer as an entirety, as the case may be, shall be a solvent entity organized and existing under the laws of the United States or any state thereof (including the District of Columbia), and, if the Issuer is not such entity, (1) such entity shall have executed and delivered to each holder of any Notes its assumption of the due and punctual performance and observance of each covenant and condition of the Issuer set forth in this Agreement and the Notes and (2) such entity shall have caused to be delivered to each holder of any Notes an opinion of nationally recognized independent counsel, or other independent counsel reasonably satisfactory to the Required Holders, to the effect that all agreements or instruments effecting such assumption are enforceable in accordance with their terms and comply with the terms hereof;

(b) in the case of any such transaction involving the Parent Guarantor, the successor formed by such consolidation or the survivor of such merger or the Person that acquires by conveyance, transfer or lease all or substantially all of the assets of the Parent Guarantor as an entirety, as the case may be, shall be a solvent entity that is organized and existing under the laws of the United States or any state thereof (including the District of Columbia) and, if the Parent Guarantor is not such entity, (1) such entity shall have executed and delivered to each holder of Notes its assumption of the due and punctual performance and observance of each covenant and condition of the Parent Guarantor set forth in this Agreement and (2) Parent Guarantor shall have caused to be delivered to each holder of Notes an opinion of nationally recognized independent counsel, or other independent counsel reasonably satisfactory to the Required Holders, to the effect that all agreements or instruments effecting such assumption are enforceable in accordance with their terms and comply with the terms hereof;

 

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(c) in the case of any such transaction involving a Subsidiary Guarantor, the successor formed by such consolidation or the survivor of such merger or the Person that acquires by conveyance, transfer or lease all or substantially all of the assets of such Subsidiary Guarantor as an entirety, as the case may be, shall be a solvent entity that is organized and existing under the laws of the United States or any state thereof (including the District of Columbia) and, if such Subsidiary Guarantor or another Subsidiary Guarantor is not such entity, (1) such entity shall have executed and delivered to each holder of Notes its assumption of the due and punctual performance and observance of each covenant and condition of the Subsidiary Guaranty Agreement and (2) the Constituent Companies shall have caused to be delivered to each holder of Notes an opinion of nationally recognized independent counsel, or other independent counsel reasonably satisfactory to the Required Holders, to the effect that all agreements or instruments effecting such assumption are enforceable in accordance with their terms and comply with the terms hereof;

(d) in the case of any such transaction involving a Qualified Asset Holder, the successor formed by such consolidation or the survivor of such merger or the Person that acquires by conveyance, transfer or lease all or substantially all of the assets of such Qualified Asset Holder as an entirety, as the case may be, shall be (1) such Qualified Asset Holder or another Qualified Asset Holder or (2) any other Person so long as immediately after giving effect to such transaction or each transaction in any series of transactions the Parent Guarantor would be in compliance, on a pro forma basis, with the requirements of Section 10.6(e);

(e) the Parent Guarantor and each Subsidiary Guarantor, as applicable, reaffirms its obligations under the Parent Guaranty and/or the Subsidiary Guaranty Agreement in writing at such time pursuant to documentation that is reasonably acceptable to the Required Holders; and

(f) immediately before and immediately after giving effect to such transaction or each transaction in any such series of transactions, no Default or Event of Default shall have occurred and be continuing.

No such conveyance, transfer or lease of substantially all of the assets of a Constituent Company or any Subsidiary Guarantor shall have the effect of releasing such Constituent Company or such Subsidiary Guarantor, as the case may be, or any successor corporation or limited liability company that shall theretofore have become such in the manner prescribed in this Section 10.2, from its liability under (x) this Agreement or the Notes (in the case of the Issuer), (y) this Agreement (in the case of the Parent Guarantor) or (z) the Subsidiary Guaranty Agreement (in the case of any Subsidiary Guarantor), unless, in the case of the conveyance, transfer or lease of substantially all of the assets of a Subsidiary Guarantor, such Subsidiary Guarantor is released from the Subsidiary Guaranty Agreement in accordance with Section 9.9(b) in connection with or immediately following such conveyance, transfer or lease.

Section 10.3 Line of Business. The Constituent Companies will not, and will not permit any Subsidiary to, engage in any business if, as a result, the general nature of the business in which the Parent Guarantor and its Subsidiaries, taken as a whole, would then be engaged would be substantially changed from the general nature of the business in which the Parent Guarantor and its Subsidiaries, taken as a whole, are engaged on the date of this Agreement or other business activities that are extensions thereof or otherwise incidental, reasonably related or ancillary thereto.

 

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Section 10.4 Economic Sanctions, Etc. The Constituent Companies will not, and will not permit any Controlled Entity to, (a) become (including by virtue of being owned or controlled by a Blocked Person), own or control a Blocked Person or (b) directly or indirectly have any investment in or engage in any dealing or transaction (including any investment, dealing or transaction involving the proceeds of the Notes) with any Person if such investment, dealing or transaction (1) would cause any holder or any affiliate of such holder to be in violation of, or subject to sanctions under, any law or regulation applicable to such holder, or (2) is prohibited by or subject to sanctions under any U.S. Economic Sanctions Laws.

Section 10.5 Liens. The Constituent Companies will not, and will not permit any Subsidiary to, directly or indirectly create, incur, assume or suffer to exist any Lien on:

(a) any Qualified Asset, other than Permitted Encumbrances;

(b) any Capital Stock of (1) any Subsidiary Guarantor, (2) any Wholly-Owned, direct Foreign Subsidiary of a Qualified Asset Guarantor that owns or leases a Qualified Asset or (3) any Qualified Asset Holder, other than Permitted Equity Encumbrances; and

(c) any income or revenues from, or proceeds of, any of the foregoing;

or sign, file or authorize under the Uniform Commercial Code of any jurisdiction a financing statement that includes in its collateral description any portion of any Qualified Asset or the Capital Stock of (i) any Subsidiary Guarantor, (ii) any Wholly-Owned, direct Foreign Subsidiary of a Qualified Subsidiary Guarantor that owns or leases a Qualified Asset or (iii) any Qualified Asset Holder, or any income or revenue from, or proceeds of, any of the foregoing.

Section 10.6 Financial Covenants.

(a) Maximum Total Leverage Ratio. The Parent Guarantor will not permit the Total Leverage Ratio to exceed 0.60 to 1.00.

(b) Minimum Fixed Charge Coverage Ratio. The Parent Guarantor will not permit the Fixed Charge Coverage Ratio for any Reference Period to be less than 1.50 to 1.00.

(c) Maximum Total Secured Indebtedness Ratio. The Parent Guarantor will not permit the Total Secured Indebtedness Ratio to exceed 0.40 to 1.00.

Notwithstanding the foregoing, the Constituent Companies will not, and will not permit any of their Subsidiaries to, secure any Indebtedness outstanding under or pursuant to any Principal Credit Facility unless and until the Notes (and any guarantee delivered in connection therewith) shall concurrently be secured equally and ratably with such Indebtedness pursuant to documentation reasonably acceptable to the Required

 

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Holders in substance and in form, including an intercreditor agreement and opinions of counsel to such Constituent Company and/or any such Subsidiary, as the case may be, from counsel that is reasonably acceptable to the Required Holders; provided that if the Indebtedness under the Principal Credit Facility thereafter ceases at any time to be secured, then, so long as no Default or Event of Default then exists or would result therefrom, the Liens securing the Notes shall be automatically released concurrently with the release of the Liens securing such Principal Credit Facility.

(d) Minimum Unsecured Debt Service Coverage Ratio. The Parent Guarantor will not permit the Unsecured Debt Service Coverage Ratio to be less than 2.00 to 1.00.

(e) Maximum Unsecured Indebtedness to Qualified Assets Ratio. The Parent Guarantor will not permit, at any time, the Unsecured Indebtedness to Qualified Assets Ratio to exceed 0.60 to 1.00.

Each of the covenants set forth in this Section 10.6(a) through (d) shall be tested on the last day of each Reference Period.

SECTION 11. EVENTS OF DEFAULT.

An “Event of Default” shall exist if any of the following conditions or events shall occur and be continuing:

(a) the Issuer defaults in the payment of any principal or Make-Whole Amount, if any, on any Note when the same becomes due and payable, whether at maturity or at a date fixed for prepayment or by declaration or otherwise; or

(b) the Issuer defaults in the payment of any interest on any Note for more than five Business Days after the same becomes due and payable; or

(c) either Constituent Company defaults in the performance of or compliance with any term contained in Section 7.1(d), Section 9.7(a), Section 9.9 or Section 10; or

(d) either Constituent Company or any Subsidiary Guarantor defaults in the performance of or compliance with any term contained or incorporated by reference herein (other than those referred to in Sections 11(a), (b) and (c)) or in the Subsidiary Guaranty Agreement and such default is not remedied within 30 days after the earlier of (1) a Responsible Officer obtaining actual knowledge of such default and (2) either Constituent Company receiving written notice of such default from any holder of a Note (any such written notice to be identified as a “notice of default” and to refer specifically to this Section 11(d)); or

(e) (1) any representation or warranty made in writing by or on behalf of either Constituent Company or by any officer of either Constituent Company in this Agreement or any writing furnished in connection with the transactions contemplated hereby proves to have been false or incorrect in any material respect on the date as of which made, or (2) any representation or warranty made in writing by or on behalf of any Subsidiary Guarantor or by any officer of such Subsidiary Guarantor in the Subsidiary Guaranty Agreement or any writing furnished in connection with the Subsidiary Guaranty Agreement proves to have been false or incorrect in any material respect on the date as of which made; or

 

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(f) (1) either Constituent Company or any Subsidiary is in default (as principal or as guarantor or other surety) in the payment of any principal of or premium or make-whole amount or interest on any Indebtedness that is outstanding in an aggregate principal amount of at least $75,000,000 (or, if lower, the lowest corresponding threshold under any Principal Credit Facility) (or its equivalent in the relevant currency of payment) beyond any period of grace provided with respect thereto, or (2) either Constituent Company or any Subsidiary is in default in the performance of or compliance with any term of any evidence of any Indebtedness in an aggregate outstanding principal amount of at least $75,000,000 (or, if lower, the lowest corresponding threshold under any Principal Credit Facility) (or its equivalent in the relevant currency of payment) or of any mortgage, indenture or other agreement relating thereto or any other condition exists, and as a consequence of such default or condition such Indebtedness has become, or has been declared (or one or more Persons are entitled to declare such Indebtedness to be), due and payable before its stated maturity or before its regularly scheduled dates of payment, or (3) as a consequence of the occurrence or continuation of any event or condition (other than the passage of time or the right of the holder of Indebtedness to convert such Indebtedness into Capital Stock), (i) either Constituent Company or any Subsidiary has become obligated to purchase or repay Indebtedness before its regular maturity or before its regularly scheduled dates of payment in an aggregate outstanding principal amount of at least $75,000,000 (or, if lower, the lowest corresponding threshold under any Principal Credit Facility) (or its equivalent in the relevant currency of payment), or (ii) one or more Persons have the right to require either Constituent Company or any Subsidiary so to purchase or repay such Indebtedness; or

(g) either Constituent Company or any Subsidiary (1) is generally not paying, or admits in writing its inability to pay, its debts as they become due, (2) files, or consents by answer or otherwise to the filing against it of, a petition for relief or reorganization or arrangement or any other petition in bankruptcy, for liquidation or to take advantage of any bankruptcy, insolvency, reorganization, moratorium or other similar law of any jurisdiction, (3) makes an assignment for the benefit of its creditors, (4) consents to the appointment of a custodian, receiver, trustee or other officer with similar powers with respect to it or with respect to any substantial part of its property, (5) is adjudicated as insolvent or to be liquidated, or (6) takes corporate action for the purpose of any of the foregoing; or

(h) a court or other Governmental Authority of competent jurisdiction enters an order appointing, without consent by either Constituent Company or any Subsidiary, a custodian, receiver, trustee or other officer with similar powers with respect to it or with respect to any substantial part of its property, or constituting an order for relief or approving a petition for relief or reorganization or any other petition in bankruptcy or for liquidation or to take advantage of any bankruptcy or insolvency law of any jurisdiction, or ordering the dissolution, winding-up or liquidation of either Constituent Company or any Subsidiary, or any such petition shall be filed against either Constituent Company or any Subsidiary and such petition shall not be dismissed within 60 days; or

 

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(i) any event occurs with respect to either Constituent Company or any Subsidiary which under the laws of any jurisdiction is analogous to any of the events described in Section 11(g) or Section 11(h), provided that the applicable grace period, if any, which shall apply shall be the one applicable to the relevant proceeding which most closely corresponds to the proceeding described in Section 11(g) or Section 11(h); or

(j) one or more final judgments or orders for the payment of money aggregating in excess of $75,000,000 (or, if lower, the lowest corresponding threshold under any Principal Credit Facility) (or its equivalent in the relevant currency of payment), including any such final order enforcing a binding arbitration decision, are rendered against one or more of the Constituent Companies and their Subsidiaries and which judgments are not, within 30 days after entry thereof, bonded, discharged or stayed pending appeal, or are not discharged within 30 days after the expiration of such stay; or

(k) if (1) any Plan shall fail to satisfy the minimum funding standards of ERISA or the Code for any plan year or part thereof or a waiver of such standards or extension of any amortization period is sought or granted under section 412 of the Code, (2) a notice of intent to terminate any Plan shall have been or is reasonably expected to be filed with the PBGC or the PBGC shall have instituted proceedings under ERISA section 4042 to terminate or appoint a trustee to administer any Plan or the PBGC shall have notified the Parent Guarantor or any ERISA Affiliate that a Plan may become a subject of any such proceedings, (3) there is any “amount of unfunded benefit liabilities” (within the meaning of section 4001(a)(18) of ERISA) under one or more Plans, determined in accordance with Title IV of ERISA, (4) the aggregate present value of accrued benefit liabilities under all funded Non-U.S. Plans exceeds the aggregate current value of the assets of such Non-U.S. Plans allocable to such liabilities, (5) the Parent Guarantor or any ERISA Affiliate shall have incurred or is reasonably expected to incur any liability pursuant to Title I or IV of ERISA or the penalty or excise tax provisions of the Code relating to employee benefit plans, (6) the Parent Guarantor or any ERISA Affiliate withdraws from any Multiemployer Plan, (7) the Parent Guarantor or any Subsidiary establishes or amends any employee welfare benefit plan that provides post-employment welfare benefits in a manner that would increase the liability of the Parent Guarantor or any Subsidiary thereunder, (8) the Parent Guarantor or any Subsidiary fails to administer or maintain a Non-U.S. Plan in compliance with the requirements of any and all applicable laws, statutes, rules, regulations or court orders or any Non-U.S. Plan is involuntarily terminated or wound up, or (9) the Parent Guarantor or any Subsidiary becomes subject to the imposition of a financial penalty (which for this purpose shall mean any tax, penalty or other liability, whether by way of indemnity or otherwise) with respect to one or more Non-U.S. Plans; and any such event or events described in clauses (1) through (9) above, either individually or together with any other such event or events, could reasonably be expected to have a Material Adverse Effect. As used in this Section 11(k), the terms “employee benefit plan” and “employee welfare benefit plan” shall have the respective meanings assigned to such terms in section 3 of ERISA; or

(l) the Subsidiary Guaranty Agreement shall cease to be in full force and effect, any Subsidiary Guarantor or any Person acting on behalf of any Subsidiary Guarantor shall contest in any manner the validity, binding nature or enforceability of the Subsidiary Guaranty Agreement, or the obligations of any Subsidiary Guarantor under the Subsidiary Guaranty Agreement are not or cease to be legal, valid, binding and enforceable in accordance with the terms thereof.

 

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SECTION 12. REMEDIES ON DEFAULT, ETC.

Section 12.1 Acceleration.

(a) If an Event of Default with respect to either Constituent Company described in Section 11(g), (h) or (i) (other than an Event of Default described in clause (1) of Section 11(g) or described in clause (6) of Section 11(g) by virtue of the fact that such clause encompasses clause (1) of Section 11(g)) has occurred, all the Notes then outstanding shall automatically become immediately due and payable.

(b) If any other Event of Default has occurred and is continuing, the Required Holders may at any time at its or their option, by notice or notices to the Issuer, declare all the Notes then outstanding to be immediately due and payable.

(c) If any Event of Default described in Section 11(a) or (b) has occurred and is continuing, any holder or holders of Notes at the time outstanding affected by such Event of Default may at any time, at its or their option, by notice or notices to the Issuer, declare all the Notes held by it or them to be immediately due and payable.

Upon any Notes becoming due and payable under this Section 12.1, whether automatically or by declaration, such Notes will forthwith mature and the entire unpaid principal amount of such Notes, plus (x) all accrued and unpaid interest thereon (including interest accrued thereon at the applicable Default Rate) and (y) the Make-Whole Amount determined in respect of such principal amount, shall all be immediately due and payable, in each and every case without presentment, demand, protest or further notice, all of which are hereby waived. The Issuer acknowledges, and the parties hereto agree, that each holder of a Note has the right to maintain its investment in the Notes free from repayment by the Issuer (except as herein specifically provided for) and that the provision for payment of a Make-Whole Amount by the Issuer in the event that the Notes are prepaid or are accelerated as a result of an Event of Default, is intended to provide compensation for the deprivation of such right under such circumstances.

Section 12.2 Other Remedies. If any Default or Event of Default has occurred and is continuing, and irrespective of whether any Notes have become or have been declared immediately due and payable under Section 12.1, the holder of any Note at the time outstanding may proceed to protect and enforce the rights of such holder by an action at law, suit in equity or other appropriate proceeding, whether for the specific performance of any agreement contained herein or in any Note or the Subsidiary Guaranty Agreement, or for an injunction against a violation of any of the terms hereof or thereof, or in aid of the exercise of any power granted hereby or thereby or by law or otherwise.

Section 12.3 Rescission. At any time after any Notes have been declared due and payable pursuant to Section 12.1(b) or (c), the Required Holders, by written notice to the Issuer, may rescind and annul any such declaration and its consequences if (a) the Issuer has paid all overdue interest on the Notes, all principal of and Make-Whole Amount, if any, on any Notes that are due and payable and are unpaid other than by reason of such declaration, and all interest

 

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on such overdue principal and Make-Whole Amount, if any, and (to the extent permitted by applicable law) any overdue interest in respect of the Notes, at the applicable Default Rate, (b) neither the Issuer nor any other Person shall have paid any amounts which have become due solely by reason of such declaration, (c) all Events of Default and Defaults, other than non-payment of amounts that have become due solely by reason of such declaration, have been cured or have been waived pursuant to Section 18, and (d) no judgment or decree has been entered for the payment of any monies due pursuant hereto or to the Notes. No rescission and annulment under this Section 12.3 will extend to or affect any subsequent Event of Default or Default or impair any right consequent thereon.

Section 12.4 No Waivers or Election of Remedies, Expenses, Etc. No course of dealing and no delay on the part of any holder of any Note in exercising any right, power or remedy shall operate as a waiver thereof or otherwise prejudice such holder’s rights, powers or remedies. No right, power or remedy conferred by this Agreement, the Subsidiary Guaranty Agreement or any Note upon any holder thereof shall be exclusive of any other right, power or remedy referred to herein or therein or now or hereafter available at law, in equity, by statute or otherwise. Without limiting the obligations of the Constituent Companies under Section 16, the Constituent Companies will pay to the holder of each Note on demand such further amount as shall be sufficient to cover all costs and expenses of such holder incurred in any enforcement or collection under this Section 12, including reasonable attorneys’ fees, expenses and disbursements.

SECTION 13. GUARANTEE.

Section 13.1 The Guarantee. The Parent Guarantor hereby absolutely, unconditionally and irrevocably guarantees, as primary obligor and not merely as surety, to each holder of a Note (a) the full and punctual payment when due, whether at maturity, by acceleration, by redemption or otherwise, of the principal of, Make-Whole Amount, if any, and interest (including any interest accruing after the commencement of any proceeding in bankruptcy and any additional interest that would accrue but for the commencement of such proceeding) on the Notes and all other obligations of the Issuer under this Agreement and (b) the full and prompt performance and observance by the Issuer of each and all of the obligations, covenants and agreements required to be performed or observed by the Issuer under the terms of this Agreement and the Notes (all the foregoing being hereinafter collectively called the Obligations). The Parent Guarantor further agrees (to the extent permitted by applicable law) that the Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it shall remain bound under this Section 13 notwithstanding any extension or renewal of any Obligation.

Section 13.2 Waiver of Defenses. The Parent Guarantor waives presentation to, demand of payment from and protest to the Issuer of any of the Obligations and also waives notice of protest for nonpayment. The Parent Guarantor waives notice of any default under this Agreement, the Notes or the other Obligations. The obligation of the Parent Guarantor hereunder shall not be affected by (a) the failure of any holder of a Note to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person (including any Subsidiary Guarantor) under this Agreement, the Notes, the Subsidiary Guaranty Agreement or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission,

 

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waiver, amendment or modification of any of the terms or provisions of this Agreement, the Notes, the Subsidiary Guaranty Agreement or any other agreement; (d) the acceptance of any security or Guarantee (including the Subsidiary Guaranty Agreement) by any holder of a Note for the Obligations or any of them; (e) the release of any security or Guarantee (including the Subsidiary Guaranty Agreement) held by any holder of a Note for the Obligations or any of them; (f) the release of the Issuer, any Subsidiary Guarantor or any other Person from its liability with respect to the Obligations; (g) any act or failure to act with regard to the Obligations; (h) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all the assets, marshalling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization or arrangement under bankruptcy or similar laws, composition with creditors or readjustment of, or other similar procedure affecting the Issuer, any Subsidiary Guarantor or any other Person or any of the assets of any of them, or any allegation or contest of the validity of this Agreement, the Notes, the Subsidiary Guaranty Agreement or any other agreement or the disaffirmance of this Agreement or the Notes or the Subsidiary Guaranty Agreement or any other agreement in any such proceeding; (i) the invalidity or unenforceability of this Agreement, the Notes, the Subsidiary Guaranty Agreement or any other agreement; (j) the impossibility or illegality of performance on the part of the Issuer, any Subsidiary Guarantor or any other Person of its obligations under the Notes, this Agreement, the Subsidiary Guaranty Agreement or any other instrument or agreement; (k) in respect of the Issuer, any Subsidiary Guarantor or any other Person, any change of circumstances, whether or not foreseen or foreseeable, whether or not imputable to the Issuer, any Subsidiary Guarantor or any other Person, or other impossibility of performance through fire, explosion, accident, labor disturbance, floods, droughts, embargoes, wars (whether or not declared), acts of terrorists, civil commotions, acts of God or the public enemy, delays or failures of suppliers or carriers, inability to obtain materials, action of any Governmental Authority, change of law or any other causes affecting performance, or other force majeure, whether or not beyond the control of the Issuer, any Subsidiary Guarantor or any other Person and whether or not of the kind above specified; or (l) any change in the ownership of the Issuer.

It being understood that the specific enumeration of the above-mentioned acts, failures or omissions shall not be deemed to exclude any other acts, failures or omissions, though not specifically mentioned above, it being the purpose and intent of this Section 13.2 that the obligations of the Parent Guarantor shall be absolute, unconditional and irrevocable to the extent herein specified and shall not be discharged, impaired or varied except by the payment of the Obligations and then only to the extent of such payment.

Section 13.3 Guaranty of Payment. The Parent Guarantor further agrees that the Guarantee herein constitutes a guaranty of payment when due (and not a guaranty of collection) and waives any right to require that any resort be had by any holder of a Note to any other Person or to any security held for payment of the Obligations.

Section 13.4 Guaranty Unconditional. The obligations of the Parent Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or

 

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unenforceability of the Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of the Parent Guarantor herein shall not be discharged or impaired or otherwise affected by the failure of any holder of a Note to assert any claim or demand or to enforce any remedy under this Agreement, the Notes, the Subsidiary Guaranty Agreement or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the Obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of the Parent Guarantor or would otherwise operate as a discharge of the Parent Guarantor as a matter of law or equity.

Section 13.5 Reinstatement. The Parent Guarantor further agrees that the Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of any of the Obligations is rescinded or must otherwise be restored by any holder of a Note upon the bankruptcy or reorganization of the Issuer or otherwise.

Section 13.6 Payment on Demand. In furtherance of the foregoing and not in limitation of any other right which any holder of a Note has at law or in equity against the Parent Guarantor by virtue hereof, upon the failure of the Issuer to pay any of the Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, the Parent Guarantor hereby promises to and shall, upon receipt of written demand by any holder of a Note, forthwith pay, or cause to be paid, in cash, to the holders an amount equal to the sum of (a) the unpaid amount of such Obligations then due and owing and (b) accrued and unpaid interest on such Obligations then due and owing (but only to the extent not prohibited by applicable law).

The Parent Guarantor acknowledges and agrees that repeated and successive demands may be made and recoveries may be had hereunder as and when, from time to time, the Issuer shall default under the terms of a Note or this Agreement and that notwithstanding recovery hereunder for or in respect of any given Default or Event of Default, the Guarantee contained in this Section 13 shall remain in full force and effect and shall apply to each and every subsequent Default or Event of Default.

Section 13.7 Stay of Acceleration. The Parent Guarantor further agrees that, as between itself, on the one hand, and the holders of the Notes, on the other hand, (a) the maturity of the Obligations guaranteed hereby may be accelerated as provided in this Agreement for the purposes of the Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations guaranteed hereby and (b) in the event of any such declaration of acceleration of such Obligations, such Obligations (whether or not due and payable) shall forthwith become due and payable by the Parent Guarantor for the purposes of this Guarantee.

Section 13.8 No Subrogation. Notwithstanding any payment or payments made by the Parent Guarantor hereunder, the Parent Guarantor shall not be entitled to be subrogated to any of the rights of any holder of a Note against the Issuer or any collateral security or Guarantee or right of offset held by any holder for the payment of the Obligations, nor shall the Parent Guarantor seek or be entitled to seek any contribution or reimbursement from the Issuer or any Subsidiary Guarantor in respect of payments made by the Parent Guarantor hereunder, until all

 

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amounts owing to the holders of the Notes by the Issuer on account of the Obligations are paid in full. If any amount shall be paid to the Parent Guarantor on account of such subrogation rights at any time when all of the Obligations shall not have been paid in full, such amount shall be held by the Parent Guarantor in trust for the holders of the Notes, segregated from other funds of the Parent Guarantor, and shall, forthwith upon receipt by the Parent Guarantor, be turned over to the holders of the Notes in the exact form received by the Parent Guarantor (duly indorsed by the Parent Guarantor to the holders of the Notes, if required), to be applied against the Obligations.

Section 13.9 Marshalling. No holder of a Note shall be under any obligation: (a) to marshal any assets in favor of the Parent Guarantor or in payment of any or all of the liabilities of the Issuer under or in respect of the Notes and this Agreement or the obligations of the Parent Guarantor hereunder or (b) to pursue any other remedy that the Parent Guarantor may or may not be able to pursue itself and that may lighten the Parent Guarantor’s burden, any right to which the Parent Guarantor hereby expressly waives.

Section 13.10 Transfer of Notes. All rights of any holder of a Note under this Section 13 shall be considered to be transferred or assigned at any time or from time to time upon the transfer of any Note held by such holder whether with or without the consent of or notice to the Parent Guarantor under this Section 13 or to the Issuer.

Section 13.11 Consideration. The Parent Guarantor has received, or shall receive, direct or indirect benefits from the making of this Guarantee.

SECTION 14. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES.

Section 14.1 Registration of Notes. The Issuer shall keep at its principal executive office a register for the registration and registration of transfers of Notes. The name and address of each holder of one or more Notes, each transfer thereof and the name and address of each transferee of one or more Notes shall be registered in such register. If any holder of one or more Notes is a nominee, then (a) the name and address of the beneficial owner of such Note or Notes shall also be registered in such register as an owner and holder thereof and (b) at any such beneficial owner’s option, either such beneficial owner or its nominee may execute any amendment, waiver or consent pursuant to this Agreement. Prior to due presentment for registration of transfer, the Person in whose name any Note shall be registered shall be deemed and treated as the owner and holder thereof for all purposes hereof, and the Issuer shall not be affected by any notice or knowledge to the contrary. The Issuer shall give to any holder of a Note that is an Institutional Investor promptly upon request therefor, a complete and correct copy of the names and addresses of all registered holders of Notes.

Section 14.2 Transfer and Exchange of Notes. Upon surrender of any Note to the Issuer at the address and to the attention of the designated officer (all as specified in Section 19(3)), for registration of transfer or exchange (and in the case of a surrender for registration of transfer accompanied by a written instrument of transfer duly executed by the registered holder of such Note or such holder’s attorney duly authorized in writing and accompanied by the relevant name, address and other information for notices of each transferee of such Note or part thereof), within 10 Business Days thereafter, the Issuer shall execute and deliver, at the Issuer’s expense (except as provided below), one or more new Notes (as requested

 

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by the holder thereof) in exchange therefor, in an aggregate principal amount equal to the unpaid principal amount of the surrendered Note. Each such new Note shall be payable to such Person as such holder may request and shall be substantially in the form of Schedule 1(c). Each such new Note shall be dated and bear interest from the date to which interest shall have been paid on the surrendered Note or dated the date of the surrendered Note if no interest shall have been paid thereon. The Issuer may require payment of a sum sufficient to cover any stamp tax or governmental charge imposed in respect of any such transfer of Notes. Notes shall not be transferred in denominations of less than $100,000, provided that if necessary to enable the registration of transfer by a holder of its entire holding of Notes, one Note may be in a denomination of less than $100,000. Any transferee, by its acceptance of a Note registered in its name (or the name of its nominee), shall be deemed to have made the representation set forth in Section 6.3.

Section 14.3 Replacement of Notes. Upon receipt by the Issuer at the address and to the attention of the designated officer (all as specified in Section 19(3)) of evidence reasonably satisfactory to it of the ownership of and the loss, theft, destruction or mutilation of any Note (which evidence shall be, in the case of an Institutional Investor, notice from such Institutional Investor of such ownership and such loss, theft, destruction or mutilation), and

(a) in the case of loss, theft or destruction, of indemnity reasonably satisfactory to it (provided that if the holder of such Note is, or is a nominee for, an original Purchaser or another holder of a Note with a minimum net worth of at least $100,000,000 or a Qualified Institutional Buyer, such Person’s own unsecured agreement of indemnity shall be deemed to be satisfactory), or

(b) in the case of mutilation, upon surrender and cancellation thereof,

within 10 Business Days thereafter, the Issuer at its own expense shall execute and deliver, in lieu thereof, a new Note, dated and bearing interest from the date to which interest shall have been paid on such lost, stolen, destroyed or mutilated Note or dated the date of such lost, stolen, destroyed or mutilated Note if no interest shall have been paid thereon.

SECTION 15. PAYMENTS ON NOTES.

Section 15.1 Place of Payment. Subject to Section 15.2, payments of principal, Make-Whole Amount, if any, and interest becoming due and payable on the Notes shall be made in New York, New York at the principal office of Bank of America, N.A. in such jurisdiction. The Issuer may at any time, by notice to each holder of a Note, change the place of payment of the Notes so long as such place of payment shall be either the principal office of the Issuer in such jurisdiction or the principal office of a bank or trust company in such jurisdiction.

Section 15.2 Payment by Wire Transfer. So long as any Purchaser or its nominee shall be the holder of any Note, and notwithstanding anything contained in Section 15.1 or in such Note to the contrary, the Issuer will pay all sums becoming due on such Note for principal, Make-Whole Amount, if any, interest and all other amounts becoming due hereunder by the method and at the address specified for such purpose below such Purchaser’s name in the Purchaser Schedule, or by such other method or at such other address as such Purchaser shall

 

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have from time to time specified to the Issuer in writing for such purpose, without the presentation or surrender of such Note or the making of any notation thereon, except that upon written request of the Issuer made concurrently with or reasonably promptly after payment or prepayment in full of any Note, such Purchaser shall surrender such Note for cancellation, reasonably promptly after any such request, to the Issuer at its principal executive office or at the place of payment most recently designated by the Issuer pursuant to Section 15.1. Prior to any sale or other disposition of any Note held by a Purchaser or its nominee, such Purchaser will, at its election, either endorse thereon the amount of principal paid thereon and the last date to which interest has been paid thereon or surrender such Note to the Issuer in exchange for a new Note or Notes pursuant to Section 14.2. The Issuer will afford the benefits of this Section 15.2 to any Institutional Investor that is the direct or indirect transferee of any Note purchased by a Purchaser under this Agreement and that has made the same agreement relating to such Note as the Purchasers have made in this Section 15.2.

Section 15.3 FATCA Information. By acceptance of any Note, the holder of such Note agrees that such holder will with reasonable promptness duly complete and deliver to the Issuer, or to such other Person as may be reasonably requested by the Issuer, from time to time (a) in the case of any such holder that is a United States Person, such holder’s United States tax identification number or other forms reasonably requested by the Issuer necessary to establish such holder’s status as a United States Person under FATCA and as may otherwise be necessary for the Issuer to comply with its obligations under FATCA and (b) in the case of any such holder that is not a United States Person, such documentation prescribed by applicable law (including as prescribed by section 1471(b)(3)(C)(i) of the Code) and such additional documentation as may be necessary for the Issuer to comply with its obligations under FATCA and to determine that such holder has complied with such holder’s obligations under FATCA or to determine the amount, if any, to deduct and withhold from any such payment made to such holder. Nothing in this Section 15.3 shall require any holder to provide information that is confidential or proprietary to such holder unless the Issuer is required to obtain such information under FATCA and, in such event, the Issuer shall treat any such information it receives as confidential.

SECTION 16. EXPENSES, ETC.

Section 16.1 Transaction Expenses. Whether or not the transactions contemplated hereby are consummated, the Constituent Companies will pay all costs and expenses (including reasonable attorneys’ fees of a special counsel and, if reasonably required by the Required Holders, local or other counsel) incurred by the Purchasers and each other holder of a Note in connection with such transactions and in connection with any amendments, waivers or consents under or in respect of this Agreement, the Subsidiary Guaranty Agreement or the Notes (whether or not such amendment, waiver or consent becomes effective), including: (a) the costs and expenses incurred in enforcing or defending (or determining whether or how to enforce or defend) any rights under this Agreement, the Subsidiary Guaranty Agreement or the Notes or in responding to any subpoena or other legal process or informal investigative demand issued in connection with this Agreement, the Subsidiary Guaranty Agreement or the Notes, or by reason of being a holder of any Note, (b) the costs and expenses, including financial advisors’ fees, incurred in connection with the insolvency or bankruptcy of the Parent Guarantor or any Subsidiary or in connection with any work-out or restructuring of the transactions contemplated

 

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hereby and by the Notes and the Subsidiary Guaranty Agreement and (c) the costs and expenses incurred in connection with the initial filing of this Agreement and all related documents and financial information with the SVO provided, that such costs and expenses under this clause (c) shall not exceed $3,500. If required by the NAIC, the Issuer shall obtain and maintain at its own cost and expense a Legal Entity Identifier (LEI).

The Constituent Companies will pay, and will save each Purchaser and each other holder of a Note harmless from, (1) all claims in respect of any fees, costs or expenses, if any, of brokers and finders (other than those, if any, retained by a Purchaser or other holder in connection with its purchase of the Notes), (2) any and all wire transfer fees that any bank or other financial institution deducts from any payment under such Note to such holder or otherwise charges to a holder of a Note with respect to a payment under such Note and (3) any judgment, liability, claim, order, decree, fine, penalty, cost, fee, expense (including reasonable attorneys’ fees and expenses) or obligation resulting from the consummation of the transactions contemplated hereby, including the use of the proceeds of the Notes by the Issuer.

Section 16.2 Certain Taxes. The Constituent Companies agree to pay all stamp, documentary or similar taxes or fees which may be payable in respect of the execution and delivery or the enforcement of this Agreement or the Subsidiary Guaranty Agreement or the execution and delivery (but not the transfer) or the enforcement of any of the Notes in the United States or any other jurisdiction where either Constituent Company or any Subsidiary Guarantor has assets or of any amendment of, or waiver or consent under or with respect to, this Agreement or the Subsidiary Guaranty Agreement or of any of the Notes, and to pay any value added tax due and payable in respect of reimbursement of costs and expenses by the Constituent Companies pursuant to this Section 16, and will save each holder of a Note to the extent permitted by applicable law harmless against any loss or liability resulting from nonpayment or delay in payment of any such tax or fee required to be paid by the Constituent Companies hereunder.

Section 16.3 Survival. The obligations of the Constituent Companies under this Section 16 will survive the payment or transfer of any Note, the enforcement, amendment or waiver of any provision of this Agreement, the Subsidiary Guaranty Agreement or the Notes, and the termination of this Agreement.

SECTION 17. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT.

All representations and warranties contained herein shall survive the execution and delivery of this Agreement and the Notes, the purchase or transfer by any Purchaser of any Note or portion thereof or interest therein and the payment of any Note, and may be relied upon by any subsequent holder of a Note, regardless of any investigation made at any time by or on behalf of such Purchaser or any other holder of a Note. All statements contained in any certificate or other instrument delivered by or on behalf of either Constituent Company pursuant to this Agreement shall be deemed representations and warranties of such Constituent Company under this Agreement. Subject to the preceding sentence, this Agreement, the Notes and the Subsidiary Guaranty Agreement embody the entire agreement and understanding between each Purchaser and the Constituent Companies and supersede all prior agreements and understandings relating to the subject matter hereof.

 

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SECTION 18. AMENDMENT AND WAIVER.

Section 18.1 Requirements. This Agreement and the Notes may be amended, and the observance of any term hereof or of the Notes may be waived (either retroactively or prospectively), only with the written consent of the Constituent Companies and the Required Holders, except that:

(a) no amendment or waiver of any of Sections 1, 2, 3, 4, 5, 6 or 22 hereof, or any defined term (as it is used therein), will be effective as to any Purchaser unless consented to by such Purchaser in writing; and

(b) no amendment or waiver may, without the written consent of each Purchaser and the holder of each Note at the time outstanding, (1) subject to Section 12 relating to acceleration or rescission, change the amount or time of any prepayment or payment of principal of, or reduce the rate or change the time of payment or method of computation of (i) interest on the Notes or (ii) the Make-Whole Amount, (2) change the percentage of the principal amount of the Notes the holders of which are required to consent to any amendment or waiver, or (3) amend any of Sections 8 (except as set forth in the second sentence of Section 8.2), 11(a), 11(b), 12, 18 or 21.

Section 18.2 Solicitation of Holders of Notes.

(a) Solicitation. The Constituent Companies will provide each holder of a Note with sufficient information, sufficiently far in advance of the date a decision is required, to enable such holder to make an informed and considered decision with respect to any proposed amendment, waiver or consent in respect of any of the provisions hereof or of the Notes or the Subsidiary Guaranty Agreement. The Constituent Companies will deliver executed or true and correct copies of each amendment, waiver or consent effected pursuant to this Section 18 or the Subsidiary Guaranty Agreement to each holder of a Note promptly following the date on which it is executed and delivered by, or receives the consent or approval of, the requisite holders of Notes.

(b) Payment. The Constituent Companies will not directly or indirectly pay or cause to be paid any remuneration, whether by way of supplemental or additional interest, fee or otherwise, or grant any security or provide other credit support, to any holder of a Note as consideration for or as an inducement to the entering into by such holder of any waiver or amendment of any of the terms and provisions hereof or of the Subsidiary Guaranty Agreement or any Note unless such remuneration is concurrently paid, or security is concurrently granted or other credit support concurrently provided, on the same terms, ratably to each holder of a Note even if such holder did not consent to such waiver or amendment.

(c) Consent in Contemplation of Transfer. Any consent given pursuant to this Section 18 or the Subsidiary Guaranty Agreement by a holder of a Note that has transferred or has agreed to transfer its Note to (1) a Constituent Company, (2) any Subsidiary or any other Affiliate or (3) any other Person in connection with, or in anticipation of, such other Person acquiring, making a tender offer for or merging with either Constituent Company and/or any of its Affiliates, in each case in connection with

 

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such consent, shall be void and of no force or effect except solely as to such holder, and any amendments effected or waivers granted or to be effected or granted that would not have been or would not be so effected or granted but for such consent (and the consents of all other holders of Notes that were acquired under the same or similar conditions) shall be void and of no force or effect except solely as to such holder.

Section 18.3 Binding Effect, Etc. Any amendment or waiver consented to as provided in this Section 18 or the Subsidiary Guaranty Agreement applies equally to all holders of Notes and is binding upon them and upon each future holder of any Note and upon each Constituent Company without regard to whether such Note has been marked to indicate such amendment or waiver. No such amendment or waiver will extend to or affect any obligation, covenant, agreement, Default or Event of Default not expressly amended or waived or impair any right consequent thereon. No course of dealing between either Constituent Company and any holder of a Note and no delay in exercising any rights hereunder or under any Note or the Subsidiary Guaranty Agreement shall operate as a waiver of any rights of any holder of such Note.

Section 17.4. Notes Held by Constituent Companies, Etc. Solely for the purpose of determining whether the holders of the requisite percentage of the aggregate principal amount of Notes then outstanding approved or consented to any amendment, waiver or consent to be given under this Agreement, the Subsidiary Guaranty Agreement or the Notes, or have directed the taking of any action provided herein or in the Subsidiary Guaranty Agreement or the Notes to be taken upon the direction of the holders of a specified percentage of the aggregate principal amount of Notes then outstanding, Notes directly or indirectly owned by a Constituent Company or any of its Affiliates shall be deemed not to be outstanding.

SECTION 19. NOTICES.

Except to the extent otherwise provided in Section 7.4, all notices and communications provided for hereunder shall be in writing and sent (a) by telecopy if the sender on the same day sends a confirming copy of such notice by an internationally recognized overnight delivery service (charges prepaid), or (b) by registered or certified mail with return receipt requested (postage prepaid), or (c) by an internationally recognized overnight delivery service (charges prepaid). Any such notice must be sent:

(1) if to any Purchaser or its nominee, to such Purchaser or nominee at the address specified for such communications in the Purchaser Schedule, or at such other address as such Purchaser or nominee shall have specified to the Constituent Companies in writing,

(2) if to any other holder of any Note, to such holder at such address as such other holder shall have specified to the Constituent Companies in writing, or

(3) if to either Constituent Company, to such Constituent Company at its address set forth at the beginning hereof to the attention of the Legal Department, or at such other address as such Constituent Company shall have specified to the holder of each Note in writing.

Notices under this Section 19 will be deemed given only when actually received.

 

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SECTION 20. REPRODUCTION OF DOCUMENTS.

This Agreement and all documents relating hereto, including (a) consents, waivers and modifications that may hereafter be executed, (b) documents received by any Purchaser at the Closing (except the Notes themselves), and (c) financial statements, certificates and other information previously or hereafter furnished to any Purchaser, may be reproduced by such Purchaser by any photographic, photostatic, electronic, digital, or other similar process and such Purchaser may destroy any original document so reproduced. Each Constituent Company agrees and stipulates that, to the extent permitted by applicable law, any such reproduction shall be admissible in evidence as the original itself in any judicial or administrative proceeding (whether or not the original is in existence and whether or not such reproduction was made by such Purchaser in the regular course of business) and any enlargement, facsimile or further reproduction of such reproduction shall likewise be admissible in evidence. This Section 20 shall not prohibit either Constituent Company or any other holder of Notes from contesting any such reproduction to the same extent that it could contest the original, or from introducing evidence to demonstrate the inaccuracy of any such reproduction.

SECTION 21. CONFIDENTIAL INFORMATION.

For the purposes of this Section 21, “Confidential Information” means information delivered to any Purchaser by or on behalf of a Constituent Company or any Subsidiary in connection with the transactions contemplated by or otherwise pursuant to this Agreement that is proprietary in nature and that was clearly marked or labeled or otherwise adequately identified when received by such Purchaser as being confidential information of such Constituent Company or such Subsidiary, provided that such term does not include information that (a) was publicly known or otherwise known to such Purchaser prior to the time of such disclosure, (b) subsequently becomes publicly known through no act or omission by such Purchaser or any Person acting on such Purchaser’s behalf, (c) otherwise becomes known to such Purchaser other than through disclosure by a Constituent Company or any Subsidiary or (d) constitutes financial statements delivered to such Purchaser under Section 7.1 that are otherwise publicly available. Each Purchaser will maintain the confidentiality of such Confidential Information in accordance with procedures adopted by such Purchaser in good faith to protect confidential information of third parties delivered to such Purchaser, provided that such Purchaser may deliver or disclose Confidential Information to (1) its directors, officers, employees, agents, attorneys, trustees and affiliates (to the extent such disclosure reasonably relates to the administration of the investment represented by its Notes), (2) its auditors, financial advisors and other professional advisors who agree to hold confidential the Confidential Information substantially in accordance with this Section 21, (3) any other holder of any Note, (4) any Institutional Investor to which it sells or offers to sell such Note or any part thereof or any participation therein (if such Person has agreed in writing prior to its receipt of such Confidential Information to be bound by this Section 21), (5) any Person from which it offers to purchase any Security of either Constituent Company (if such Person has agreed in writing prior to its receipt of such Confidential Information to be bound by this Section 21), (6) any federal or state regulatory authority having jurisdiction over such Purchaser, (7) the NAIC or the SVO or, in each case, any similar organization, or any nationally recognized rating agency that requires access to information about such Purchaser’s investment portfolio, or (8) any other Person to which such delivery or disclosure may be necessary or appropriate (i) to effect compliance with any law, rule, regulation or order applicable to such Purchaser, (ii) in response to any subpoena or other legal process, (iii) in

 

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connection with any litigation to which such Purchaser is a party or (iv) if an Event of Default has occurred and is continuing, to the extent such Purchaser may reasonably determine such delivery and disclosure to be necessary or appropriate in the enforcement or for the protection of the rights and remedies under such Purchaser’s Notes, this Agreement or the Subsidiary Guaranty Agreement. Each holder of a Note, by its acceptance of a Note, will be deemed to have agreed to be bound by and to be entitled to the benefits of this Section 21 as though it were a party to this Agreement. On reasonable request by a Constituent Company in connection with the delivery to any holder of a Note of information required to be delivered to such holder under this Agreement or requested by such holder (other than a holder that is a party to this Agreement or its nominee), such holder will enter into an agreement with the Constituent Companies embodying this Section 21.

In the event that as a condition to receiving access to information relating to a Constituent Company or its Subsidiaries in connection with the transactions contemplated by or otherwise pursuant to this Agreement, any Purchaser or holder of a Note is required to agree to a confidentiality undertaking (whether through IntraLinks, another secure website, a secure virtual workspace or otherwise) which is different from this Section 21, this Section 21 shall not be amended thereby and, as between such Purchaser or such holder and the Constituent Companies, this Section 21 shall supersede any such other confidentiality undertaking.

SECTION 22. SUBSTITUTION OF PURCHASER.

Each Purchaser shall have the right to substitute any one of its Affiliates or another Purchaser or any one of such other Purchaser’s Affiliates (a “Substitute Purchaser”) as the purchaser of the Notes that it has agreed to purchase hereunder, by written notice to the Issuer, which notice shall be signed by both such Purchaser and such Substitute Purchaser, shall contain such Substitute Purchaser’s agreement to be bound by this Agreement and shall contain a confirmation by such Substitute Purchaser of the accuracy with respect to it of the representations set forth in Section 6. Upon receipt of such notice, any reference to such Purchaser in this Agreement (other than in this Section 22), shall be deemed to refer to such Substitute Purchaser in lieu of such original Purchaser. In the event that such Substitute Purchaser is so substituted as a Purchaser hereunder and such Substitute Purchaser thereafter transfers to such original Purchaser all of the Notes then held by such Substitute Purchaser, upon receipt by the Issuer of notice of such transfer, any reference to such Substitute Purchaser as a “Purchaser” in this Agreement (other than in this Section 22), shall no longer be deemed to refer to such Substitute Purchaser, but shall refer to such original Purchaser, and such original Purchaser shall again have all the rights of an original holder of the Notes under this Agreement.

SECTION 23. MISCELLANEOUS.

Section 23.1 Successors and Assigns. All covenants and other agreements contained in this Agreement by or on behalf of any of the parties hereto bind and inure to the benefit of their respective successors and assigns (including any subsequent holder of a Note) whether so expressed or not, except that, subject to Section 10.2, neither Constituent Company may assign or otherwise transfer any of its rights or obligations hereunder or under the Notes without the prior written consent of each holder. Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto and their respective successors and assigns permitted hereby) any legal or equitable right, remedy or claim under or by reason of this Agreement.

 

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Section 23.2 Accounting Terms. All accounting terms used herein which are not expressly defined in this Agreement have the meanings respectively given to them in accordance with GAAP. Except as otherwise specifically provided herein, (a) all computations made pursuant to this Agreement shall be made in accordance with GAAP, and (b) all financial statements shall be prepared in accordance with GAAP. For purposes of determining compliance with this Agreement (including Section 9, Section 10 and the definition of “Indebtedness”), (1) any election by the Parent Guarantor or any Subsidiary to measure any financial liability using fair value (as permitted by Financial Accounting Standards Board Accounting Standards Codification Topic No. 825-10-25Fair Value Option, International Accounting Standard 39 – Financial Instruments: Recognition and Measurement or any similar accounting standard) shall be disregarded and such determination shall be made as if such election had not been made and (2) any change to GAAP occurring after the date of this Agreement as a result of the adoption of any proposals set forth in the Proposed Accounting Standards Update, Leases (Topic 840), issued by the Financial Accounting Standards Board on August 17, 2010, the Proposed Accounting Standards Update, Leases (Topic 842), issued by the Financial Accounting Standards Board on May 16, 2013, or any other proposals issued by the Financial Accounting Standards Board in connection therewith, in each case if such change would require treating any lease (or similar arrangement conveying the right to use) as a capital lease where such lease (or similar arrangement) was not required to be so treated under GAAP as in effect on the date of this Agreement shall be disregarded.

Section 23.3 Severability. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall (to the full extent permitted by law) not invalidate or render unenforceable such provision in any other jurisdiction.

Section 23.4 Construction, Etc. Each covenant contained herein shall be construed (absent express provision to the contrary) as being independent of each other covenant contained herein, so that compliance with any one covenant shall not (absent such an express contrary provision) be deemed to excuse compliance with any other covenant. Where any provision herein refers to action to be taken by any Person, or which such Person is prohibited from taking, such provision shall be applicable whether such action is taken directly or indirectly by such Person.

Defined terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.” The word “will” shall be construed to have the same meaning and effect as the word “shall.” Unless the context requires otherwise (a) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein) and, for purposes of the Notes, shall also include

 

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any such notes issued in substitution therefor pursuant to Section 14, (b) subject to Section 23.1, any reference herein to any Person shall be construed to include such Person’s successors and assigns, (c) the words “herein,” “hereof” and “hereunder,” and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (d) all references herein to Sections and Schedules shall be construed to refer to Sections of, and Schedules to, this Agreement, and (e) any reference to any law or regulation herein shall, unless otherwise specified, refer to such law or regulation as amended, modified or supplemented from time to time.

Any reference herein to a merger, transfer, consolidation, amalgamation, assignment, sale, disposition or transfer, or similar term, shall be deemed to apply to a division of or by a limited liability company, or an allocation of assets to a series of one or more limited liability companies (or the unwinding of such a division or allocation), as if it were a merger, transfer, consolidation, amalgamation, consolidation, assignment, sale, disposition or transfer, or similar term, as applicable, to, of or with a separate Person. Any division of a limited liability company shall constitute a separate Person hereunder (and each division of any limited liability company that is a Subsidiary, joint venture or any other like term shall also constitute such a Person or entity).

Section 23.5 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original but all of which together shall constitute one instrument. Each counterpart may consist of a number of copies hereof, each signed by less than all, but together signed by all, of the parties hereto.

Section 23.6 Governing Law. This Agreement shall be construed and enforced in accordance with, and the rights of the parties shall be governed by, the law of the State of New York excluding choice-of-law principles of the law of such State that would permit the application of the laws of a jurisdiction other than such State.

Section 23.7 Jurisdiction and Process; Waiver of Jury Trial.

(a) Each party hereto irrevocably submits to the non-exclusive jurisdiction of any New York State or federal court sitting in the Borough of Manhattan, The City of New York, over any suit, action or proceeding arising out of or relating to this Agreement or the Notes. To the fullest extent permitted by applicable law, each party hereto irrevocably waives and agrees not to assert, by way of motion, as a defense or otherwise, any claim that it is not subject to the jurisdiction of any such court, any objection that it may now or hereafter have to the laying of the venue of any such suit, action or proceeding brought in any such court and any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.

(b) Each party hereto agrees, to the fullest extent permitted by applicable law, that a final judgment in any suit, action or proceeding of the nature referred to in Section 23.7(a) brought in any such court shall be conclusive and binding upon it subject to rights of appeal, as the case may be, and may be enforced in the courts of the United States or the State of New York (or any other courts to the jurisdiction of which it or any of its assets is or may be subject) by a suit upon such judgment.

 

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(c) Each party hereto consents to process being served by or on behalf of any holder of Notes in any suit, action or proceeding of the nature referred to in Section 23.7(a) by mailing a copy thereof by registered, certified, priority or express mail (or any substantially similar form of mail), postage prepaid, return receipt or delivery confirmation requested, to it at its address specified in Section 19 or at such other address of which such holder shall then have been notified pursuant to said Section. Each party hereto agrees that such service upon receipt (1) shall be deemed in every respect effective service of process upon it in any such suit, action or proceeding and (2) shall, to the fullest extent permitted by applicable law, be taken and held to be valid personal service upon and personal delivery to it. Notices hereunder shall be conclusively presumed received as evidenced by a delivery receipt furnished by the United States Postal Service or any reputable commercial delivery service.

(d) Nothing in this Section 23.7 shall affect the right of any party hereto to serve process in any manner permitted by law, or limit any right that any party hereto may have to bring proceedings against any other party hereto in the courts of any appropriate jurisdiction or to enforce in any lawful manner a judgment obtained in one jurisdiction in any other jurisdiction.

(e) The parties hereto hereby waive trial by jury in any action brought on or with respect to this Agreement, the Notes or any other document executed in connection herewith or therewith.

*      *      *      *       *

 

-52-


If you are in agreement with the foregoing, please sign the form of agreement on a counterpart of this Agreement and return it to the Constituent Companies, whereupon this Agreement shall become a binding agreement between you and the Constituent Companies.

 

Very truly yours,
AMERICOLD REALTY OPERATING PARTNERSHIP, L.P.
By   /s/ Marc J. Smernoff
  Name:  Marc J. Smernoff
  Title:    Chief Financial Officer
AMERICOLD REALTY TRUST
By   /s/ Marc J. Smernoff
  Name:  Marc J. Smernoff
  Title:    Chief Financial Officer

 

-53-


This Agreement is hereby

accepted and agreed to as

of the date hereof.

 

TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA, a New York domiciled life insurance company

By:   Nuveen Alternatives Advisors LLC, a Delaware limited liability company, its investment manager
By:   /s/ Jeffrey Hughes
Name:   Jeffrey Hughes
Title:   Senior Director

 

-54-


ATHENE ANNUITY AND LIFE COMPANY
By:   Athene Asset Management LLC, its investment adviser
By:   /s/ Roger D. Fors
Name:   Roger D. Fors
Title:   Senior Vice President, Fixed Income
THE LINCOLN NATIONAL LIFE INSURANCE COMPANY
By:   Athene Asset Management LLC, its investment adviser
By:   /s/ Roger D. Fors
Name:   Roger D. Fors
Title:   Senior Vice President, Fixed Income

ATHENE ANNUITY & LIFE ASSURANCE COMPANY OF NEW YORK

By:   Athene Asset Management LLC, its investment adviser
By:   /s/ Roger D. Fors
Name:   Roger D. Fors
Title:   Senior Vice President, Fixed Income
ATHENE ANNUITY & LIFE ASSURANCE COMPANY
By:   Athene Asset Management LLC, its investment adviser
By:   /s/ Roger D. Fors
Name   Roger D. Fors
Title:   Senior Vice President, Fixed Income

 

-55-


ALLIANZ LIFE INSURANCE COMPANY OF NORTH AMERICA

By:   Allianz Global Investors U.S. LLC
  As the authorized signatory and investment manager
By:   /s/ Lawrence Halliday
Name:   Lawrence Halliday
Title:   Managing Director

 

-56-


HARTFORD LIFE AND ACCIDENT INSURANCE COMPANY
HARTFORD FIRE INSURANCE COMPANY
By:   Hartford Investment Management Company, their investment manager
By:   /s/ Dawn Bruneau
  Name:  Dawn Bruneau
  Title:    Vice President
TALCOTT RESOLUTION LIFE INSURANCE COMPANY
By:   Hartford Investment Management Company, its investment manager
By:   /s/ Dawn Bruneau
  Name:  Dawn Bruneau
  Title:    Vice President

 

-57-


PRU US PP CREDIT BM FUND
By:   Prudential Private Placement Investors,
  L.P. (as Investment Advisor)
By:   Prudential Private Placement Investors, Inc.
  (as its General Partner)
By:   /s/ Kyle Ulep
  Vice President
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
By:   /s/ Kyle Ulep
  Vice President

 

-58-


NATIONWIDE LIFE INSURANCE COMPANY

NATIONWIDE LIFE AND ANNUITY INSURANCE COMPANY 

By:   /s/ Thomas A. Gleason
Name:   Thomas A. Gleason
Title:   Authorized Signatory

 

-59-


TRANSAMERICA PREMIER LIFE INSURANCE COMPANY

By:  

AEGON USA Investment Management,

LLC, its investment manager

/s/ Josh Prieskorn

By:   Josh Prieskorn

Title:

  Vice President

TRANSAMERICA LIFE INSURANCE COMPANY

By:   AEGON USA Investment Management,LLC, its investment manager

/s/ Josh Prieskorn

By:   Josh Prieskorn

Title:

  Vice President

 

-60-


MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY

By:

 

Barings LLC as Investment Adviser

/s/ George M. Stone

By:   George M. Stone
Title:   Managing Director

YF LIFE INSURANCE INTERNATIONAL LIMITED

By:

 

Barings LLC as Investment Adviser

/s/ George M. Stone

By:   George M. Stone
Title:   Managing Director

BANNER LIFE INSURANCE COMPANY

By:

 

Barings LLC as Investment Adviser

/s/ George M. Stone

By:   George M. Stone
Title:   Managing Director

 

-61-


THE LINCOLN NATIONAL LIFE INSURANCE COMPANY

By:   Macquarie Investment Management Advisers, a series of Macquarie Investment Management Business Trust, Attorney in Fact
By:   /s/ Philip Lee
Name:   Philip Lee
Title:   Vice President

USAA Master Trust (Pension and RSP)

By:   Macquarie Investment Management Advisers, a series of Macquarie Investment Management Business Trust, as investment adviser
By:   /s/ Frank LaTorraca
Name:  

Frank LaTorraca

Title:   Senior Vice President

 

-62-


ENSIGN PEAK ADVISORS, INC.
By  

/s/ Matthew D. Dall

  Name:  Matthew D. Dall
  Title:    Head of Credit Research

 

-63-


INTEGRITY LIFE INSURANCE COMPANY
By:  

 /s/ Kevin L. Howard

Name:  Kevin L. Howard
Title:    Sr. Vice President & General Counsel

 

By:  

 /s/ Brendan M. White

Name:  Brendan M. White
Title:    Sr. Vice President & Co-Chief Investment Officer

 

-64-


RGA REINSURANCE COMPANY
RGA REINSURANCE COMPANY BARBADOS LTD
By  

 /s/ Timothy Matson

Name:   Timothy Matson
Title:   EVP & Chief Investment Officer

 

-65-


SECURIAN LIFE INSURANCE COMPANY
ALLIANCE UNITED INSURANCE COMPANY
MINNESOTA LIFE INSURANCE COMPANY
By: Securian Asset Management, Inc
By  

 /s/ Craig M. Stapleton

Name:   Craig M. Stapleton
Title:   Senior Vice President

 

-66-


CMFG LIFE INSURANCE COMPANY
By:   MEMBERS Capital Advisors, Inc.
  acting as Investment Advisor
By:  

 /s/ Allen R. Cantrell

Name:  Allen R. Cantrell
Title: Managing Director, Investments

 

-67-


AMERICO FINANCIAL LIFE & ANNUITY INSURANCE COMPANY

By:  

 /s/ Phillip K. Polkinghorn

Name:   Phillip K. Polkinghorn
Title:   President

 

-68-


MODERN WOODMEN OF AMERICA
By:  

 /s/ Aaron R. Birkland

Name:   Aaron R. Birkland
Title:   Portfolio Manager, Private Placements
MODERN WOODMEN OF AMERICA
By:  

 /s/ Christopher M. Cramer

Name:   Christopher M. Cramer
Title:   Manager, Fixed income

 

-69-


THE GUARDIAN INSURANCE & ANNUITY COMPANY, INC.
BERKSHIRE LIFE INSURANCE COMPANY OF AMERICA

THE GUARDIAN LIFE INSURANCE COMPANY OF AMERICA

By:  

 /s/ Barry Scheinholtz

Name:   Barry Scheinholtz
Title:   Managing Director

 

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UNITED OF OMAHA LIFE INSURANCE COMPANY
By:  

 /s/ Lee Martin

Name:   Lee Martin
Title:   Vice President

 

-71-


VOYA RETIREMENT INSURANCE AND ANNUITY COMPANY

UNITED TECHNOLOGIES CORPORATION EMPLOYEE SAVINGS PLAN

MASTER TRUST
By:   Voya Investment Management Co. LLC, as Agent
By:  

 /s/ Joshua A. Winchester

Name:   Joshua A. Winchester
Title:   Vice President

 

-72-


AMERITAS LIFE INSURANCE CORP.
AMERITAS LIFE INSURANCE CORP. OF NEW YORK
By:   Ameritas Investment Partners Inc., as Agent
By:  

 /s/ Tina Udell

Name:  Tina Udell
Title:    Vice President & Managing Director

 

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GENWORTH LIFE AND ANNUITY INSURANCE COMPANY
By:  

 /s/ Stuart Shepetin

Name:   Stuart Shepetin
Title:   Investment Officer

 

-74-


AMERICAN EQUITY INVESTMENT LIFE INSURANCE COMPANY

By:  

 /s/ Jeffrey A. Fossell

Name:   Jeffrey A. Fossell
Title:  

Authorized Signatory

 

GREAT-WEST LIFE &ANNUITY INSURANCE COMPANY
By:  

 /s/ Tad Anderson

Name:   Tad Anderson
Title:   Assistant Vice President, Investments

 

-75-


DEFINED TERMS

As used herein, the following terms have the respective meanings set forth below or set forth in the Section hereof following such term:

“Affiliate” means, at any time, and with respect to any Person, any other Person that at such time directly or indirectly through one or more intermediaries Controls, or is Controlled by, or is under common Control with, such first Person. Unless the context otherwise clearly requires, any reference to an “Affiliate” is a reference to an Affiliate of the Parent Guarantor.

“Agreement” means this Note and Guaranty Agreement, including all Schedules attached to this Agreement.

“Aggregate Qualified Asset Amount” means, at any time, the sum of (a) the Eligible Value of Eligible Owned Assets at such time, plus (b) the Eligible Value of Eligible Ground Leased Assets at such time; provided that (1) the aggregate amount contributed to the Aggregate Qualified Asset Amount by Qualified Assets that are located in any Specified Jurisdiction other than the United States shall not exceed 30% of the Aggregate Qualified Asset Amount at any time, (2) the aggregate amount contributed to the Aggregate Qualified Asset Amount by Eligible Ground Leased Assets shall not exceed 20% of the Aggregate Qualified Asset Amount at any time and (3) no single Qualified Asset shall constitute more than 10% of the Aggregate Qualified Asset Amount at any time; provided that, to the extent any such limitation is exceeded, only such portion of the Eligible Value of such Qualified Asset or Qualified Assets shall be excluded from the calculation of the Aggregate Qualified Asset Amount to the extent necessary to comply with the foregoing limitations.

“Anti-Corruption Laws” means any law or regulation in a U.S. or any non-U.S. jurisdiction regarding bribery or any other corrupt activity, including the U.S. Foreign Corrupt Practices Act and the U.K. Bribery Act 2010.

“Anti-Money Laundering Laws” means any law or regulation in a U.S. or any non-U.S. jurisdiction regarding money laundering, drug trafficking, terrorist-related activities or other money laundering predicate crimes, including the Currency and Foreign Transactions Reporting Act of 1970 (otherwise known as the Bank Secrecy Act) and the USA PATRIOT Act.

“Applicable EBITDA” means with respect to any Real Property that is owned or ground leased by the Issuer or any Subsidiary and used in a business permitted under Section 10.3, as of any date of determination, an amount equal to the portion of EBITDA attributable to such asset for the most recently ended Reference Period.

“Bank Credit Agreement” means the Credit Agreement dated as of December 4, 2018 among the Constituent Companies, the financial institutions from time to time parties thereto and Bank of America, N.A., as administrative agent, and any renewals, refinancings or replacements thereof.

 

SCHEDULE A

(to Note and Guaranty Agreement)


“Blocked Person” means (a) a Person whose name appears on the list of Specially Designated Nationals and Blocked Persons published by OFAC, (b) a Person, entity, organization, country or regime that is blocked or a target of sanctions that have been imposed under U.S. Economic Sanctions Laws or (c) a Person that is an agent, department or instrumentality of, or is otherwise beneficially owned by, controlled by or acting on behalf of, directly or indirectly, any Person, entity, organization, country or regime described in clause (a) or (b).

“Business Day” means (a) for the purposes of Section 8.6 only, any day other than a Saturday, a Sunday or a day on which commercial banks in New York City are required or authorized to be closed, and (b) for the purposes of any other provision of this Agreement, any day other than a Saturday, a Sunday or a day on which commercial banks in New York, New York or Atlanta, Georgia are required or authorized to be closed.

“Capital Assets” means, with respect to any Person, all equipment, fixed assets and Real Property or improvements of such Person, or replacements or substitutions therefor or additions thereto, that in accordance with GAAP have been or should be reflected as additions to property, plant or equipment on the balance sheet of such Person.

“Capital Lease” is defined in the definition of Capital Lease Obligations.

“Capital Lease Obligations” means, as to any Person, the obligations of such Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet of such Person under GAAP (such lease, a “Capital Lease”) and, for the purposes of this Agreement, the amount of such obligations at any time shall be the capitalized amount thereof at such time determined in accordance with GAAP.

“Capital Stock” means any and all shares, interests, participations or other equivalents (however designated) of capital stock of a corporation, any and all equivalent ownership interests in a Person (other than a corporation) and any and all warrants, rights or options to purchase any of the foregoing.

“Capitalization Rate” means 8.25%; provided that, if any Principal Credit Facility uses a “capitalization rate” for determining asset values thereunder that is higher or lower than 8.25%, then the capitalization rate herein shall be the highest capitalization rate then applicable under any Principal Credit Facility; provided, further, that in no event may the capitalization rate herein be less than 6.75%.

“Change of Control” is defined in Section 8.7(h).

“Change of Control Proposed Prepayment Date” is defined in Section 8.7(c).

“Closing” is defined in Section 3.

“Code” means the Internal Revenue Code of 1986 and the rules and regulations promulgated thereunder from time to time.

“Confidential Information” is defined in Section 21.

 

A-2


“Consolidated Secured Indebtedness” means, at any time, Secured Indebtedness of the Parent Guarantor and its Subsidiaries on a consolidated basis.

“Consolidated Secured Recourse Indebtedness” means, at any time, Secured Recourse Indebtedness of the Parent Guarantor and its Subsidiaries on a consolidated basis.

“Constituent Company” and “Constituent Companies” are defined in the first paragraph of this Agreement.

“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise; and the terms “Controlled” and “Controlling” shall have meanings correlative to the foregoing.

“Control Event” is defined in Section 8.7(i).

“Controlled Entity” means (a) any of the Subsidiaries of the Parent Guarantor and any of their or the Parent Guarantor’s respective Controlled Affiliates and (b) if the Parent Guarantor has a parent company, such parent company and its Controlled Affiliates.

“Customary Non-Recourse Carve-Outs” means, with respect to any Non-Recourse Indebtedness, exclusions from the exculpation provisions with respect to such Non-Recourse Indebtedness for fraud, misrepresentation, misapplication of funds, waste, environmental claims and liabilities, voluntary bankruptcy, collusive involuntary bankruptcy, prohibited transfers, violations of single purpose entity covenants and other circumstances customarily excluded by institutional lenders from exculpation provisions and/or included in separate indemnification agreements or guaranties in non-recourse or tax-exempt financings of commercial real estate.

“Debt Rating” means the debt rating of the Notes as determined from time to time by any NRSRO.

“Default” means an event or condition the occurrence or existence of which would, with the lapse of time or the giving of notice or both, become an Event of Default.

“Default Rate” means, with respect to any Note, that rate of interest per annum that is the greater of (a) 2.00% above the rate of interest stated in clause (a) of the first paragraph of such Note or (b) 2.00% over the rate of interest publicly announced by Bank of America, N.A. in New York, New York as its “base” or “prime” rate.

“Development Property” means, as of any date of determination, Real Property under development on which the improvements related to the development have not been completed on such date; provided that such Real Property shall cease to be a Development Property upon the first to occur of (a) the date that is six full fiscal quarters following substantial completion (including issuance of a temporary or permanent certificate of occupancy for the improvements under construction permitting the use and occupancy for their regular intended uses) of such Real Property, and (b) the first day of the first fiscal quarter following the date on which such Development Property has achieved a Leased Rate of at least 85%, and shall thereafter be considered a “Stabilized Property” for the purposes of the calculation of Total Asset Value.

 

A-3


“Disposition” means, with respect to any business, assets or property of any kind of the Parent Guarantor or any of its Subsidiaries, any sale, lease, sub-lease, sale and leaseback, assignment, conveyance, transfer, exclusive license or other disposition or exchange thereof, with or without recourse. The terms “Dispose” and “Disposed of” shall have correlative meanings.

“Disclosure Documents” is defined in Section 5.3.

“Domestic Subsidiary” means any Subsidiary that is not a Foreign Subsidiary.

“EBITDA” means, with respect to the Parent Guarantor and its consolidated Subsidiaries, for any Reference Period, earnings before interest, tax, depreciation, depletion and amortization calculated in accordance with GAAP, as may be adjusted in accordance with the definition of “Pro Forma Basis” and at all times excluding, without duplication, (a) impairment and other non-cash charges or gains including, for the avoidance of doubt, equity in earnings (but excluding any non-cash charge in respect of an item that was included in EBITDA in a prior period and any charges that result in a write-down or write-off of inventory and excluding amortization expense attributable to a prepaid cash item that was paid in a prior period), (b) stock-based compensation expense, (c) gains or losses from sales of previously depreciated assets, (d) extraordinary gains or losses from foreign exchange, (e) extraordinary gains or losses from derivative instruments and (f) other extraordinary or non-recurring gains, losses or charges; provided, however, that notwithstanding anything to the contrary in this Agreement, for the purposes of determining the contribution to EBITDA of, or portion of EBITDA attributable to, any Real Property, any operating asset or any business managed or operated by the Issuer or any Subsidiary, EBITDA shall equal revenues in respect of such asset, less, without duplication, (1) operating expenses in respect of such asset (exclusive of corporate-level general and administrative expenses, impairment on intangibles and long-lived assets and depreciation, depletion and amortization expenses), (2) rent expenses in respect of such asset and (3) the interest component of any capital lease expenses or similar fixed charges and debt service charges in respect of such asset, and shall at all times exclude extraordinary or non-recurring gains, losses or charges.

“EDGAR” means the SEC’s Electronic Data Gathering, Analysis and Retrieval System or any successor SEC electronic filing system for such purposes.

“Eligible Ground Leased Asset” means any Real Property that satisfies the following criteria:

(a) such Real Property is leased pursuant to a ground lease by (1) a Qualified Asset Guarantor that has no Indebtedness outstanding (other than Pari Passu Obligations and Indebtedness arising under the Subsidiary Guaranty Agreement) or (2) in the case where such Real Property is located in a Specified Jurisdiction other than the United States, a Wholly-Owned, direct Foreign Subsidiary of a Qualified Asset Guarantor, which Foreign Subsidiary has no Indebtedness outstanding, or (3) a Qualified Asset Holder that has no Indebtedness outstanding, as lessee;

 

A-4


(b) such Real Property is a Stabilized Property located in the United States or another Specified Jurisdiction;

(c) such Real Property is improved with one or more completed warehouse/distribution buildings that are used as dry and/or cold storage facilities and such improvements are owned by (1) such Qualified Asset Guarantor or (2) such Wholly-Owned, direct Foreign Subsidiary of a Qualified Asset Guarantor or (3) such Qualified Asset Holder;

(d) none of such leasehold interest or such improvements is directly or indirectly subject to any Lien or any Negative Pledge (other than (1) Liens and Negative Pledges created hereunder, (2) Permitted Pari Passu Provisions and (3) Permitted Encumbrances) and none of the Capital Stock of (i) such Qualified Asset Guarantor or (ii) such Wholly-Owned, direct Foreign Subsidiary of a Qualified Asset Guarantor or (iii) such Qualified Asset Holder (or, in any case, any income therefrom or proceeds thereof), is directly or indirectly subject to any Lien or any Negative Pledge (other than (A) Permitted Pari Passu Provisions and (B) Permitted Equity Encumbrances);

(e) no default or event of default has occurred or with the passage of time or the giving of notice would occur under the ground lease regarding such Real Property;

(f) the lessor under the ground lease regarding such Real Property shall not have the unilateral right to terminate such ground lease prior to the expiration of the stated term of such ground lease absent the occurrence of any casualty, condemnation or default by (1) such Qualified Asset Guarantor or (2) such Wholly-Owned, direct Foreign Subsidiary of a Qualified Asset Guarantor or (3) such Qualified Asset Holder, thereunder;

(g) the lessee under the ground lease has the right to sublease, mortgage and encumber (subject to customary terms and limitations) its interest in such Real Property without the consent of the lessor;

(h) the ground lease regarding such Real Property has a remaining term (inclusive of any unexercised extension options as to which there is no condition precedent to the exercise thereof other than compliance of lessee with the terms of the applicable ground lease and the giving of a notice of exercise by the lessee) of 25 years or more at any time;

(i) such Real Property is free of any material defects and any material Environmental Liabilities and is in material compliance with all Environmental Laws;

(j) such Real Property is used in a business permitted under Section 10.3; and

(k) such Real Property constitutes an “Eligible Ground Leased Asset” or similar term under each Principal Credit Facility that applies eligibility requirements to ground leased properties in determining a borrowing base or what constitutes an unencumbered asset.

 

A-5


“Eligible Owned Asset” means any Real Property that satisfies the following criteria:

(a) such Real Property is wholly owned in fee simple by (1) a Qualified Asset Guarantor that has no Indebtedness outstanding (other than Pari Passu Obligations and Indebtedness arising under the Subsidiary Guaranty Agreement) or (2) in the case where such Real Property is located in a Specified Jurisdiction other than the United States, a Wholly-Owned, direct Foreign Subsidiary of a Qualified Asset Guarantor, which Foreign Subsidiary has no Indebtedness outstanding, or (3) a Qualified Asset Holder that has no Indebtedness outstanding;

(b) such Real Property is a Stabilized Property located in the United States or another Specified Jurisdiction;

(c) such Real Property is free of any material defects and any material Environmental Liabilities and is in material compliance with all Environmental Laws;

(d) such Real Property is improved with one or more completed warehouse/distribution buildings that are used as dry and/or cold storage facilities;

(e) such Real Property (and any income therefrom or proceeds thereof) is not directly or indirectly subject to any Lien or any Negative Pledge (other than (1) Liens and Negative Pledges created hereunder, (2) Permitted Pari Passu Provisions and (3) Permitted Encumbrances) and none of the Capital Stock of (i) such Qualified Asset Guarantor or (ii) such Wholly-Owned, direct Foreign Subsidiary of a Qualified Asset Guarantor or (iii) such Qualified Asset Holder (and, in any case, any income therefrom or proceeds thereof), is directly or indirectly subject to any Lien or any Negative Pledge (other than (A) Permitted Pari Passu Provisions and (B) Permitted Equity Encumbrances);

(f) such Real Property is used in a business permitted under Section 10.3; and

(g) such Real Property constitutes an “Eligible Owned Asset” or similar term under each Principal Credit Facility that applies eligibility requirements to owned real properties in determining a borrowing base or what constitutes an unencumbered asset.

“Eligible Value” means, as of any date of determination, with respect to each Real Property that is owned or ground leased by the Issuer or any Subsidiary and used in a business permitted under Section 10.3, (a) the Applicable EBITDA with respect to such Real Property divided by (b) the Capitalization Rate.

“Environmental Laws” means any and all federal, state, local, and foreign statutes, laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants, franchises, licenses, agreements or governmental restrictions relating to pollution and the protection of the environment or the release of any materials into the environment, including those related to Hazardous Materials.

 

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“Environmental Liability” means all liabilities, obligations, damages, losses, claims, actions, suits, judgments, orders, fines, penalties, fees, expenses and costs (including administrative oversight costs, natural resource damages, monitoring and remediation costs and reasonable fees and expenses of attorneys and consultants), whether contingent or otherwise, including those arising out of or relating to: (a) compliance or non-compliance with any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment, recycling, disposal (or arrangement for such activities) of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the presence or release of any Hazardous Materials or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.

“ERISA” means the Employee Retirement Income Security Act of 1974 and the rules and regulations promulgated thereunder from time to time in effect.

“ERISA Affiliate” means any trade or business (whether or not incorporated) that is treated as a single employer together with the Parent Guarantor under section 414 of the Code.

“Event of Default” is defined in Section 11.

“Exchange Act” means the Securities Exchange Act of 1934.

“FATCA” means (a) sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), together with any current or future regulations or official interpretations thereof, (b) any treaty, law or regulation of any other jurisdiction, or relating to an intergovernmental agreement between the United States and any other jurisdiction, which (in either case) facilitates the implementation of the foregoing clause (a), and (c) any agreements entered into pursuant to section 1471(b)(1) of the Code.

Financial Covenant” means any covenant (whether set forth as a covenant, undertaking, event of default, restriction, prepayment event or other such provision) that requires the Parent Guarantor and/or any Subsidiary to:

(a) maintain a specified measure of net worth, shareholders’ equity, total assets, unencumbered assets, unencumbered properties, cash flow, net income, occupancy rate or lease term;

(b) maintain any relationship of any component of its capital structure to any other component thereof (including the relationship of indebtedness, subsidiary indebtedness, senior indebtedness, secured indebtedness, unsecured indebtedness, subordinated indebtedness or recourse indebtedness to total capitalization, total assets, unencumbered assets or net worth);

(c) maintain any measure of its ability to service its indebtedness (including exceeding any specified ratio of revenues, cash flow, operating income or net income to indebtedness, interest expense, rental expense, capital expenditures and/or scheduled payments of indebtedness);

(d) restrict the amount of distributions; or

(e) restrict the amount or type of its investments.

 

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“Fitch” means Fitch Ratings, Inc.

“Fixed Charge Coverage Ratio” means, as of the last day of any Reference Period, the ratio of (a) the difference between (1) EBITDA for such Reference Period minus (2) the aggregate amount of Maintenance Capital Expenditures for such Reference Period to (b) Fixed Charges for such Reference Period.

“Fixed Charges” means, for any Reference Period, an amount equal to the sum of (a) Interest Expense, plus (b) regularly scheduled installments (whether or not paid) of principal payable with respect to Total Indebtedness (including any scheduled payments that were no longer required to be repaid in such period as a result of a payment made within one year of the date on which such payment was due), plus (c) the amount of dividends or distributions actually paid or required to be paid by the Parent Guarantor or any Subsidiary (other than to the Parent Guarantor or any Subsidiary) in cash during such period in respect of its preferred Capital Stock (excluding dividends and distributions payable solely at such Person’s election and not actually paid and any balloon payments payable on maturity or redemption in whole of such Capital Stock) plus (d) all income tax payments with respect to the taxable REIT Subsidiaries of the Parent Guarantor and the Issuer (including Foreign Subsidiaries).

“Foreign Subsidiary” means any Subsidiary that is incorporated or organized under the laws of any jurisdiction other than any state of the United States or the District of Columbia.

“Form 10-K” is defined in Section 7.1(b).

“Form 10-Q” is defined in Section 7.1(a).

“GAAP” means (a) generally accepted accounting principles as in effect from time to time in the United States of America and (b) for purposes of Section 9.6, with respect to any Subsidiary, generally accepted accounting principles (including International Financial Reporting Standards, as applicable) as in effect from time to time in the jurisdiction of organization of such Subsidiary.

“Governmental Authority” means

(a) the government of

(1) the United States or any state or other political subdivision thereof, or

(2) any other jurisdiction in which the Parent Guarantor or any Subsidiary conducts all or any part of its business, or which asserts jurisdiction over any properties of the Parent Guarantor or any Subsidiary, or

(b) any entity exercising executive, legislative, judicial, regulatory or administrative functions of, or pertaining to, any such government.

“Governmental Official” means any governmental official or employee, employee of any government-owned or government-controlled entity, political party, any official of a political party, candidate for political office, official of any public international organization or anyone else acting in an official capacity.

 

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“Guarantee Obligation” means, as to any Person (the “guaranteeing person”), (a) any obligation, including a reimbursement, counterindemnity or similar obligation, of the guaranteeing Person that guarantees or in effect guarantees, or which is given to induce the creation of a separate obligation by another Person (including any bank under any letter of credit) that guarantees or in effect guarantees, any Indebtedness, leases, dividends or other obligations (the “primary obligations”) of any other third Person (the “primary obligor”) in any manner, whether directly or indirectly, including any obligation of the guaranteeing person, whether or not contingent, (1) to purchase any such primary obligation or any property constituting direct or indirect security therefor, (2) to advance or supply funds (i) for the purchase or payment of any such primary obligation or (ii) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (3) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation or (4) otherwise to assure or hold harmless the owner of any such primary obligation against loss in respect thereof or (b) any Lien on any assets of such Person securing any Indebtedness or other obligation of any other Person, whether or not such Indebtedness or other obligation is assumed by such Person (or any right, contingent or otherwise, of any holder of such Indebtedness to obtain any such Lien); provided that the term Guarantee Obligation shall not include endorsements of instruments for deposit or collection in the ordinary course of business or customary and reasonable indemnity obligations or product warranties. The amount of any Guarantee Obligation of any guaranteeing person shall be deemed to be the lower of (i) an amount equal to the stated or determinable amount of the primary obligation in respect of which such Guarantee Obligation is made and (ii) the maximum amount for which such guaranteeing person may be liable pursuant to the terms of the instrument embodying such Guarantee Obligation, unless such primary obligation and the maximum amount for which such guaranteeing person may be liable are not stated or determinable, in which case the amount of such Guarantee Obligation shall be such guaranteeing person’s maximum reasonably anticipated liability in respect thereof as determined by the Parent Guarantor in good faith.

“Hazardous Materials” means any and all pollutants, toxic or hazardous wastes or other substances that might pose a hazard to health and safety, the removal of which may be required or the generation, manufacture, refining, production, processing, treatment, storage, handling, transportation, transfer, use, disposal, release, discharge, spillage, seepage or filtration of which is or shall be restricted, prohibited or penalized by any applicable law, including asbestos, urea formaldehyde foam insulation, polychlorinated biphenyls, petroleum, petroleum products, lead based paint, radon gas or similar restricted, prohibited or penalized substances.

“holder” means, with respect to any Note, the Person in whose name such Note is registered in the register maintained by the Issuer pursuant to Section 14.1, provided, however, that if such Person is a nominee, then for the purposes of Sections 7, 8.7, 12, 18.2 and 19 and any related definitions in this Schedule A, “holder” shall mean the beneficial owner of such Note whose name and address appears in such register.

“Incorporated Covenant” is defined in Section 9.10(a).

 

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“Indebtedness” of any Person at any date means, without duplication, (a) all obligations of such Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of such Person under conditional sale or other title retention agreements relating to property acquired by such Person, excluding those incurred in the ordinary course of its business that would constitute ordinarily a trade payable to trade creditors, (d) all obligations of such Person in respect of the deferred purchase price of property or services (excluding those incurred in the ordinary course of its business that would constitute ordinarily a trade payable to trade creditors), (e) all Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such Person, whether or not the Indebtedness secured thereby has been assumed, provided that, as to such Person, recourse is limited to such property, (f) all Guarantee Obligations by such Person of Indebtedness of others, but only to the extent of the amount of Indebtedness guaranteed, (g) all Capital Lease Obligations of such Person, (h) all obligations, contingent or otherwise, of such Person as an account party in respect of letters of credit and letters of guaranty (other than such obligations with respect to letters of credit and letters of guaranty to support workers’ compensation insurance programs, which shall only constitute Indebtedness when such letter of credit or letter of guaranty is drawn), (i) all obligations, contingent or otherwise, of such Person in respect of bankers’ acceptances, (j) all Off-Balance Sheet Obligations of such Person, (k) all obligations of such Person to purchase, redeem, retire, defease or otherwise make any payment in respect of any Capital Stock issued by such Person or any other Person, valued at the greater of its voluntary or involuntary liquidation preference plus accrued and unpaid dividends (other than any obligation of such Person if such Person, in its sole discretion, may satisfy such obligation by delivering (or causing to be delivered) common Capital Stock in the Parent Guarantor or any Subsidiary that is not a Subsidiary Guarantor or a Qualified Asset Holder, as applicable), (l) all obligations of such Person in respect of any purchase obligation, repurchase obligation, takeout commitment or forward equity commitment, in each case evidenced by a binding agreement (other than any obligation of such Person if such Person, in its sole discretion, may satisfy such obligation by delivering (or causing to be delivered) common Capital Stock in the Parent Guarantor or any Subsidiary that is not a Subsidiary Guarantor or a Qualified Asset Holder, as applicable), and (m) net obligations under any Swap Agreements in an amount equal to the Swap Termination Value thereof (other than any obligation of such Person if such Person, in its sole discretion, may satisfy such obligation by delivering (or causing to be delivered) common Capital Stock in the Parent Guarantor or any Subsidiary that is not a Subsidiary Guarantor or a Qualified Asset Holder, as applicable). The Indebtedness of any Person shall include the Indebtedness (other than (1) Qualified JV Debt and (2) any Indebtedness of China Merchants Americold Logistics Company, Limited and China Merchants Americold Holdings Company, Limited outstanding as of the date of the Closing) of any other entity (including any partnership in which such Person is a general partner) to the extent such Person, by operation of the documentation evidencing such Indebtedness or by law, is liable therefor as a result of such Person’s ownership interest in or other relationship with such entity, except to the extent the terms of such Indebtedness provide that such Person is not liable therefor. For the avoidance of doubt, Indebtedness shall not include (i) prepaid or deferred revenue arising in the ordinary course of business and (ii) purchase price holdbacks arising in the ordinary course of business in respect of a portion of the purchase price of an asset to satisfy warrants or other unperformed obligations of the seller of such asset.

“INHAM Exemption” is defined in Section 6.2(e).

 

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“Institutional Investor” means (a) any Purchaser of a Note, (b) any holder of a Note holding (together with one or more of its affiliates) more than $2,000,000 of the aggregate principal amount of the Notes then outstanding, (c) any bank, trust company, savings and loan association or other financial institution, any pension plan, any investment company, any insurance company, any broker or dealer, or any other similar financial institution or entity, regardless of legal form, and (d) any Related Fund of any holder of any Note.

“Interest Expense” means, for any Reference Period, an amount equal to the sum of the following with respect to Total Indebtedness: (a) total interest expense, accrued in accordance with GAAP plus (b) all capitalized interest determined in accordance with GAAP (including in the case of (a) and (b), the Parent Guarantor’s pro rata share thereof for Unconsolidated Affiliates, other than with respect to Qualified JV Debt), and excluding non-cash amortization or write-off of deferred financing costs or debt discount (including the Parent Guarantor’s pro rata share thereof for Unconsolidated Affiliates).

“Issuer” is defined in the first paragraph of this Agreement.

“Leased Rate” means, at any time, with respect to any Real Property, the ratio, expressed as a percentage, of (a) the rentable operating square footage of such Real Property actually leased by tenants that are not the Parent Guarantor or any of its Subsidiaries or Affiliates of the Parent Guarantor or any of its Subsidiaries and paying rent at rates not materially less than rates generally prevailing at the time the applicable lease was entered into, pursuant to binding leases as to which no default or event of default has occurred and is continuing to (b) the aggregate rentable operating square footage of such Real Property.

“Lien” means, with respect to any Person, any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge or other security interest or any preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever (including any conditional sale or other title retention agreement and any capital lease having substantially the same economic effect as any of the foregoing); provided that in no event shall an operating lease be deemed to be a Lien.

“Maintenance Capital Expenditures” means, for any Reference Period, all capital expenditures actually made by the Parent Guarantor and its consolidated Subsidiaries (and the pro rata share of capital expenditures made by Unconsolidated Affiliates) during such period for the maintenance of Capital Assets of such Person, excluding capital expenditures for modernization.

“Make-Whole Amount” is defined in Section 8.6.

“Material” means material in relation to the business, operations, affairs, financial condition, assets, properties, or prospects of the Parent Guarantor and its Subsidiaries taken as a whole.

“Material Adverse Effect” means a material adverse effect on (a) the business, operations, affairs, financial condition, assets or properties of the Issuer and its Subsidiaries taken as a whole, (b) the ability of the Issuer to perform its obligations under this Agreement and the Notes, (c) the ability of the Parent Guarantor to perform its obligations under this Agreement, (d) the ability of any Subsidiary Guarantor to perform its obligations under the Subsidiary Guaranty Agreement or (e) the validity or enforceability of this Agreement, the Notes or the Subsidiary Guaranty Agreement.

 

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“Maturity Date” is defined in the first paragraph of each Note.

“Moody’s” means Moody’s Investors Service, Inc.

“Morningstar” means Morningstar Credit Ratings, LLC.

“Most Favored Lender Notice” means, in respect of any Incorporated Covenant, a written notice from the Constituent Companies giving notice of such Incorporated Covenant, including therein a verbatim statement of such Incorporated Covenant, together with any definitions incorporated therein.

“Multiemployer Plan” means any Plan that is a “multiemployer plan” (as such term is defined in section 4001(a)(3) of ERISA).

“NAIC” means the National Association of Insurance Commissioners.

“Negative Pledge” means a provision of any document, instrument or agreement (including any governing or organizational document), other than this Agreement, that prohibits, restricts or limits, or purports to prohibit, restrict or limit, the creation or assumption of any Lien on any assets of a Person as security for the Indebtedness of such Person or any other Person; provided that (a) an agreement that conditions a Person’s ability to encumber its assets upon the maintenance of one or more specified ratios that limit such Person’s ability to encumber its assets but that do not generally prohibit the encumbrance of its assets, or the encumbrance of specific assets, shall not constitute a Negative Pledge and (b) customary contractual restrictions in a lease relating to the granting of a Lien on the applicable leasehold interest or leased property shall not constitute a Negative Pledge.

“New Subsidiary Guaranty” is defined in Section 9.9(a)(1).

“New Subsidiary Guaranty Supplement” is defined in Section 9.9(a)(1).

“Non-Recourse Indebtedness” means, with respect to any Person, (a) Indebtedness, or a Guarantee Obligation of Indebtedness, in respect of which recourse for payment (except to the extent of any Customary Non-Recourse Carve-Outs) is contractually limited to specific assets of such Person encumbered by a Lien securing such Indebtedness or Guarantee Obligation, (b) if such Person is a Single Asset Entity, any Indebtedness of such Person (other than Indebtedness described in the immediately following clause (c)), or (c) if such Person is a Single Asset Holding Company, any Indebtedness (“Holdco Indebtedness”) of such Single Asset Holding Company resulting from a Guarantee Obligation of, or Lien securing, Indebtedness of a Single Asset Entity that is a subsidiary of such Single Asset Holding Company, so long as, in each case, either (1) recourse for payment of such Holdco Indebtedness (except for Customary Non-Recourse Carve-Outs) is contractually limited to the Capital Stock held by such Single Asset Holding Company in such Single Asset Entity or (2) such Single Asset Holding Company has no assets other than Capital Stock in such Single Asset Entity and cash and other assets of nominal value incidental to the ownership of the such Single Asset Entity.

 

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Non-U.S. Plan” means any plan, fund or other similar program that (a) is established or maintained outside the United States by the Parent Guarantor or any Subsidiary primarily for the benefit of employees of the Parent Guarantor or one or more Subsidiaries residing outside the United States, which plan, fund or other similar program provides, or results in, retirement income, a deferral of income in contemplation of retirement or payments to be made upon termination of employment, and (b) is not subject to ERISA or the Code.

“Notes” is defined in Section 1.

“NRSRO” means (a) Fitch, Moody’s, Morningstar or S&P, or (b) or any other credit rating agency that is recognized as a nationally recognized statistical rating organization by the SEC and approved by the Required Holders, so long as, in each case, any such credit rating agency described in clause (a) or (b) above continues to be a nationally recognized statistical rating organization recognized by the SEC and is approved as a “Credit Rating Provider” (or other similar designation) by the NAIC.

“Obligations” is defined in Section 13.1.

“OFAC” means the Office of Foreign Assets Control of the United States Department of the Treasury.

“OFAC Sanctions Program” means any economic or trade sanction that OFAC is responsible for administering and enforcing. A list of OFAC Sanctions Programs may be found at http://www.treasury.gov/resource-center/sanctions/Programs/Pages/Programs.aspx.

“Off-Balance Sheet Obligations” means liabilities and obligations of the Parent Guarantor, any Subsidiary or any other Person in respect of “off-balance sheet arrangements” (as defined in the SEC Off-Balance Sheet Rules) which the Parent Guarantor would be required to disclose in the “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section of a report on Form 10-Q or Form 10-K (or their equivalents) (but, for the avoidance of doubt, excluding operating leases and ordinary course contracts for the purchase of power). As used in this definition, the term “SEC Off-Balance Sheet Rules” means the Disclosure in Management’s Discussion and Analysis About Off Balance Sheet Arrangements, Securities Act Release No. 33-8182, 68 Fed. Reg. 5982 (Feb. 5, 2003) (codified at 17 CFR Parts 228, 229 and 249).

“Officer’s Certificate” means, with respect to any Person, a certificate of a Senior Financial Officer of such Person or of any other officer of such Person whose responsibilities extend to the subject matter of such certificate.

“Parent Guarantor” is defined in the first paragraph of this Agreement.

“Parent Guaranty” means the Guarantee Obligation of the Parent Guarantor set forth in Section 13.

 

A-13


“Pari Passu Obligations” means Unsecured Indebtedness (exclusive of the Notes and the Subsidiary Guaranty Agreement) of either Constituent Company or any Subsidiary Guarantor owing to a Person that is not the Parent Guarantor or an Affiliate.

“PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA.

“Permitted Acquisition” means any acquisition, whether by purchase, merger, amalgamation, consolidation or otherwise, of (a) all or substantially all of the assets of any Person, or a business line or unit or a division of any Person, or any parcel of Real Property and improvements thereto or (b) the Capital Stock of any Person such that such Person becomes a Subsidiary; provided that:

(1) no Event of Default shall have occurred and be continuing or would result therefrom;

(2) before and after giving effect thereto, the Company and its Subsidiaries are in compliance on a Pro Forma Basis with Section 10.6 and any Incorporated Covenant; and

(3) after giving effect thereto, the Company and its Subsidiaries are in compliance on a Pro Forma Basis with Section 10.3 and shall have complied with the requirements of Section 9.9(a), if applicable.

“Permitted Encumbrances” means:

(a) Liens imposed by law for taxes or other related governmental charges or claims that are not yet due or that are being contested in good faith by appropriate proceedings; provided that adequate reserves with respect thereto are maintained on the books of the Parent Guarantor or the applicable Subsidiary in conformity with GAAP;

(b) Liens imposed by law, such as landlord’s, carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s, construction contractors’ and other like Liens arising in the ordinary course of business and securing obligations that are not overdue for a period of more than 30 days or that are being contested in good faith by appropriate proceedings;

(c) Liens arising from judgments or decrees for the payment of money in circumstances that do not constitute an Event of Default under 11(j);

(d) easements, restrictions, rights-of-way, use restrictions, rights of first refusal and similar encumbrances on Real Property imposed by law or arising in the ordinary course of business that do not secure any monetary obligations and do not materially detract from the value of the affected property or interfere with the ordinary conduct of business of the Parent Guarantor or the applicable Subsidiary;

 

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(e) any zoning or similar law or right reserved to, or vested in, any Governmental Authority to control or regulate the use of any real property that do not materially detract from the value of the affected property or interfere with the ordinary course of conduct of the business of the Parent Guarantor or the applicable Subsidiary;

(f) Liens affecting title on Real Property that have been fully paid off and satisfied and which remain of record through no fault of the Person that owns such Real Property and that, in any event do not have a material and adverse effect with respect to the use, operations or marketability of the affected Real Property or with respect to the ownership of the affected Real Property, and do not interfere with the ordinary conduct of business of the Parent Guarantor or the applicable Subsidiary; and

(g) rights of lessors under Eligible Ground Leased Assets.

“Permitted Equity Encumbrances” means:

(a) Liens and Negative Pledges created pursuant to this Agreement;

(b) Liens imposed by law for Taxes or other related governmental charges or claims that are not yet due or that are being contested in good faith by appropriate proceedings; provided that adequate reserves with respect thereto are maintained on the books of the Parent Guarantor or the applicable Subsidiary in conformity with GAAP; and

(c) Liens arising from judgments or decrees for the payment of money in circumstances that do not constitute an Event of Default under Section 11(j).

“Permitted Pari Passu Provisions” means provisions that are contained in documentation evidencing or governing Pari Passu Obligations which provisions are the result of (a) limitations on the ability of the Issuer or a Subsidiary to make Restricted Payments or transfer property to the Parent, any Subsidiary Guarantor or any Qualified Asset Holder which limitations are not, taken as a whole, materially more restrictive than those contained in this Agreement, including any Incorporated Covenant, (b) limitations on the creation of any Lien on any assets of a Person that are not, taken as a whole, materially more restrictive than those contained in this Agreement or (c) any requirement that Pari Passu Obligations be secured on an “equal and ratable basis” to the extent that the Notes are secured.

“Person” means an individual, partnership, corporation, limited liability company, association, trust, unincorporated organization, business entity or Governmental Authority.

“Plan” means an “employee benefit plan” (as defined in section 3(3) of ERISA) subject to Title I of ERISA that is or, within the preceding five years, has been established or maintained, or to which contributions are or, within the preceding five years, have been made or required to be made, by the Parent Guarantor or any ERISA Affiliate or with respect to which the Parent Guarantor or any ERISA Affiliate may have any liability.

“Principal Credit Facility” means, as to the Parent Guarantor and its Subsidiaries,

 

A-15


(a) the Bank Credit Agreement, including any renewals, refinancings and replacements thereof;

(b) if (1) the Bank Credit Agreement is no longer in effect or (2) if the sum of (i) the aggregate outstanding principal amount of loans under the Bank Credit Agreement and (ii) the unfunded commitments under the Bank Credit Agreement is less than $500,000,000 (or the equivalent of such amount in the relevant currency of payment, determined as of the date of the closing of the then current Bank Credit Agreement based on the exchange rate of such other currency), then (A) in the case of clause (1), the “Principal Credit Facility” shall mean the largest credit facility, based upon commitments, in respect of Recourse Indebtedness for borrowed money of the Parent Guarantor or any Subsidiary, or in respect of which the Parent Guarantor or any Subsidiary is an obligor or otherwise provides a guarantee or other credit support and (B) in the case of clause (2), “Principal Credit Facility” shall mean the Bank Credit Agreement and the largest credit facility (not including the Bank Credit Agreement), based upon commitments, in respect of Recourse Indebtedness for borrowed money of the Parent Guarantor or any Subsidiary, or in respect of which the Parent Guarantor or any Subsidiary is an obligor or otherwise provides a guarantee or other credit support;

(c) the Note and Guaranty Agreement dated as of December 4, 2018 among the Constituent Companies and the purchasers named therein, including any renewals, refinancings and replacements thereof; and

(d) any other note purchase agreement or similar document, instrument or agreement executed in connection with a private placement debt financing, regardless of the principal amount outstanding thereunder from time to time, in each case including any renewals, refinancings and replacements thereof.

“Pro Forma Basis” means with respect to the calculation of the covenants set forth in Section 10.6 or otherwise for purposes of determining the Total Leverage Ratio, EBITDA or Interest Expense as of any date, that such calculation shall give pro forma effect to all Permitted Acquisitions, all issuances, incurrences or assumptions of Indebtedness (with any such Indebtedness being deemed to be amortized over the applicable testing period in accordance with its terms) and all sales, transfers or other Dispositions of any material assets outside the ordinary course of business (and any related prepayments or repayments of Indebtedness) that have occurred during (or, if such calculation is being made for the purpose of determining whether any proposed acquisition will constitute a Permitted Acquisition, since the beginning of) the then-applicable Reference Period as if they occurred on the first day of such Reference Period (excluding cost savings, synergies, operating expense reductions and other operating improvements). If any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date of determination had been the applicable rate for the entire period (taking into account any Swap Agreement applicable to such Indebtedness if such Swap Agreement has a remaining term in excess of 12 months).

“property” or “properties” means, unless otherwise specifically limited, real or personal property of any kind, tangible or intangible, choate or inchoate.

 

A-16


“PTE” is defined in Section 6.2(a).

“Purchaser” or “Purchasers” means each of the purchasers that has executed and delivered this Agreement to the Constituent Companies and such Purchaser’s successors and assigns (so long as any such assignment complies with Section 14.2), provided, however, that any Purchaser of a Note that ceases to be the registered holder or a beneficial owner (through a nominee) of such Note as the result of a transfer thereof pursuant to Section 14.2 shall cease to be included within the meaning of “Purchaser” of such Note for the purposes of this Agreement upon such transfer.

Purchaser Schedule” means the Purchaser Schedule to this Agreement listing the Purchasers of the Notes and including their notice and payment information.

“Qualified Asset” means, at any time, any Eligible Owned Asset or Eligible Ground Leased Asset. Each Qualified Asset as of the date of the Closing is set forth on Schedule QA.

“Qualified Asset Guarantor” means, at any time, each Wholly-Owned Domestic Subsidiary of the Issuer, whether existing on the date of the Closing or formed or acquired thereafter, that is a party to the Subsidiary Guaranty Agreement and that either owns or leases a Qualified Asset located in the United States or has a Wholly-Owned, direct Foreign Subsidiary that owns or leases a Qualified Asset located in a Specified Jurisdiction other than the United States.

“Qualified Asset Holder” means each Wholly-Owned Subsidiary of the Issuer that owns or leases a Qualified Asset located in a Specified Jurisdiction, but is not (a) a party to the Subsidiary Guaranty Agreement, (b) required to guarantee the Notes under Section 9.9(a), or (c) in the case of a Wholly-Owned Foreign Subsidiary, a Subsidiary of a Person described in clause (a) or (b).

“Qualified Institutional Buyer” means any Person who is a “qualified institutional buyer” within the meaning of such term as set forth in Rule 144A(a)(1) under the Securities Act.

“Qualified JV Debt” means Indebtedness of an Unconsolidated Affiliate that is secured by cash collateral provided by the holders of Capital Stock in such Unconsolidated Affiliate.

“Real Property” means, collectively, all right, title and interest (including any leasehold estate) in and to any and all parcels of or interests in real property owned in fee or leased by the Parent Guarantor or any Subsidiary, together with, in each case, all easements, hereditaments and appurtenances relating thereto, all improvements and appurtenant fixtures incidental to the ownership or lease thereof.

“REIT” is defined in Section 5.9.

“Recourse Indebtedness” means, with respect to any Person, Indebtedness of such Person other than Non-Recourse Indebtedness of such Person.

“Reference Period” means, at any time, the most recent period of four consecutive fiscal quarters of the Parent Guarantor ended on or prior to such time (taken as one accounting period) in respect of which financial statements for each quarter or fiscal year in such period have been or are required to be delivered pursuant to Section 7.1(a) or Section 7.1(b), as applicable.

 

A-17


“Related Fund” means, with respect to any holder of any Note, any fund or entity that (a) invests in Securities or bank loans, and (b) is advised or managed by such holder, the same investment advisor as such holder or by an affiliate of such holder or such investment advisor.

“Required Holders” means at any time on or after the Closing, the holders of more than 50% in principal amount of the Notes at the time outstanding (exclusive of Notes then owned by either Constituent Company or any of its Affiliates).

“Responsible Officer” of any Person means any Senior Financial Officer and any other officer of such Person with responsibility for the administration of the relevant portion of this Agreement.

“Restricted Payment” means any dividend on, or payment made on account of, or assets set apart for a sinking or other analogous fund for, the purchase, redemption, defeasance, retirement, cancellation, termination or other acquisition of, any Capital Stock of the Parent Guarantor or any Subsidiary, whether now or hereafter outstanding, or any other distribution made in respect thereof, whether in cash or property or in obligations of the Parent Guarantor or any Subsidiary.

“S&P” means S&P Global Ratings.

“SEC” means the Securities and Exchange Commission of the United States.

“Secured Indebtedness” means, with respect to any Person, all Indebtedness of such Person that is secured by a Lien and, solely for purposes of Section 10.6(c), all unsecured Indebtedness of any Subsidiary that is not a Subsidiary Guarantor.

“Secured Recourse Indebtedness” means, with respect to any Person, all Recourse Indebtedness of such Person that constitutes Secured Indebtedness.

“Secured Recourse Leverage Ratio” means, at any time, the ratio of (a) Consolidated Secured Recourse Indebtedness at such time to (b) Total Asset Value at such time.

“Securities” or “Security” shall have the meaning specified in section 2(1) of the Securities Act.

“Securities Act” means the Securities Act of 1933 and the rules and regulations promulgated thereunder from time to time in effect.

“Senior Financial Officer” of any Person means the chief financial officer, principal accounting officer, treasurer or comptroller of such Person.

“Single Asset Entity” means a Person (other than an individual) that (a) only owns a single real property and/or cash and other assets of nominal value incidental to such Person’s ownership of such real property; (b) is engaged only in the business of owning, developing and/or leasing such real property and activities incidental thereto; and (c) receives substantially

 

A-18


all of its gross revenues from such real property. In addition, if the assets of a Person consist solely of (1) Capital Stock in one or more other Single Asset Entities and (2) cash and other assets of nominal value incidental to such Person’s ownership of the other Single Asset Entities, such Person shall also be deemed to be a Single Asset Entity for purposes of this Agreement (such an entity, a “Single Asset Holding Company”).

“Single Asset Holding Company” is defined in the definition of Single Asset Entity.

Solvent” means, with respect to any Person, as of any date of determination, (a) the amount of the “present fair saleable value” (determined on a going concern basis) of the assets of such Person will, as of such date, exceed the amount of all “liabilities of such Person, contingent or otherwise”, as of such date, as such quoted terms are determined in accordance with applicable federal and state laws governing determinations of the insolvency of debtors, (b) the present fair saleable value (determined on a going concern basis) of the assets of such Person will, as of such date, be greater than the amount that will be required to pay the liability of such Person on its debts as such debts become absolute and matured in the ordinary course, (c) such Person will not have, as of such date, an unreasonably small amount of capital with which to conduct its business as contemplated on the date hereof and (d) such Person will be able to pay its debts as they mature in the ordinary course.

“Source” is defined in Section 6.3.

“Specified Jurisdiction” means each of Australia, Canada, New Zealand and the United States together with such other jurisdiction as may be agreed to by the Required Holders.

“Stabilized Property” is defined in the definition of “Development Property.”

“State Sanctions List” means a list that is adopted by any state Governmental Authority within the United States pertaining to Persons that engage in investment or other commercial activities in Iran or any other country that is a target of economic sanctions imposed under U.S. Economic Sanctions Laws.

“Subsidiary” means, as to any Person, any other Person in which such first Person or one or more of its Subsidiaries or such first Person and one or more of its Subsidiaries owns sufficient equity or voting interests to enable it or them (as a group) ordinarily, in the absence of contingencies, to elect a majority of the directors (or Persons performing similar functions) of such second Person, and any partnership or joint venture if more than a 50% interest in the profits or capital thereof is owned by such first Person or one or more of its Subsidiaries or such first Person and one or more of its Subsidiaries (unless such partnership or joint venture can and does ordinarily take major business actions without the prior approval of such Person or one or more of its Subsidiaries). Unless the context otherwise clearly requires, any reference to a “Subsidiary” is a reference to a Subsidiary of the Parent Guarantor.

“Subsidiary Guarantor” means each Subsidiary that has executed and delivered the Subsidiary Guaranty Agreement or a Subsidiary Guaranty Supplement or a New Subsidiary Guaranty Supplement.

 

A-19


“Subsidiary Guaranty Agreement” means that certain Subsidiary Guaranty Agreement dated as of the date of the Closing substantially in the form of Exhibit SGA and each New Subsidiary Guaranty Agreement, as the context requires.

“Subsidiary Guaranty Supplement” is defined in Section 9.9(a).

“Substitute Purchaser” is defined in Section 22.

“SVO” means the Securities Valuation Office of the NAIC.

“Swap Agreement” means any agreement with respect to any swap, forward, future or derivative transaction or option or similar agreement involving, or settled by reference to, one or more rates, currencies, commodities, equity or debt instruments or securities, or economic, financial or pricing indices or measures of economic, financial or pricing risk or value or any similar transaction or any combination of these transactions; provided that no phantom stock or similar plan providing for payments only on account of services provided by current or former directors, officers, employees or consultants of the Parent Guarantor or any Subsidiary shall be a “Swap Agreement”

“Swap Termination Value” means in respect of any one or more Swap Agreements, after taking into account the effect of any legally enforceable netting agreement relating to such Swap Agreements, (a) for any date on or after the date such Swap Agreements have been closed out and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to the date referenced in clause (a) above, the amount(s) determined as the mark-to-market value(s) for such Swap Agreements, as determined in accordance with the terms thereof and in accordance with customary methods for calculating mark-to-market values under similar agreements between the parties to such Swap Agreements.

“Total Asset Value” means, at any time, without duplication, the sum of (a) with respect to Real Property that is owned or ground leased by the Issuer or any Subsidiary and used in a business permitted under Section 10.3, the sum of the Eligible Values at such time of each such Real Property, (b) with respect to each operating asset owned or leased by the Issuer or any Subsidiary and used in a business permitted under Section 10.3, the sum of the portion of EBITDA attributable to each such asset for the most recently ended Reference Period multiplied by (1) with respect to any limestone quarry operating asset, 6.0, or (2) with respect to any other operating asset, 8.0; provided that for the purposes of calculating Total Asset Value, with respect to (i) any operating asset or Real Property acquired after the date of the Closing, such asset or Real Property shall be valued at the purchase price paid for such asset or Real Property for the first 12 months following the date of acquisition thereof (and thereafter, valued in accordance with clause (a) or (b) above, as applicable) and (ii) any Development Property until such Development Property becomes a Stabilized Property, such Development Property shall be valued at the lesser of (A) cost or (B) market value in accordance with GAAP (and once such Development Property becomes a Stabilized Property, valued in accordance with clause (a) above) and (c) with respect to any business managed by the Issuer or any Subsidiary and any business operated by the Issuer or any Subsidiary as part of such Person’s transportation business segment, in each case, to the extent such business is permitted under Section 10.3, the sum of the portion of EBITDA attributable to each such business for the most recently ended Reference Period multiplied by 8.0.

 

A-20


“Total Indebtedness” means, without duplication, all Indebtedness of the Parent Guarantor and its consolidated Subsidiaries.

“Total Leverage Ratio” means, at any time, the ratio of (a) Total Indebtedness at such time to (b) Total Asset Value at such time.

“Total Secured Indebtedness Ratio” means, at any time, the ratio of (a) Consolidated Secured Indebtedness at such time to (b) Total Asset Value at such time.

“Total Unsecured Indebtedness” means, at any time, the portion of Total Indebtedness that is not Secured Indebtedness.

“Unconsolidated Affiliate” means, in respect of any Person, any other Person in whom such Person holds an investment in Capital Stock, which investment is accounted for in the financial statements of such Person on an equity basis of accounting and whose financial results would not be consolidated under GAAP with the financial results of such first Person on the consolidated financial statements of such first Person.

“United States” means the United States of America.

“United States Person” has the meaning set forth in Section 7701(a)(30) of the Code.

“Unsecured Debt Service Coverage Ratio” means, as of the last day of any Reference Period, the ratio of (a) an amount equal to the portion of EBITDA attributable to all Qualified Assets for such Reference Period to (b) the Interest Expense attributable to Total Unsecured Indebtedness for such Reference Period.

“Unsecured Indebtedness to Qualified Assets Ratio” means, at any time, the ratio of (a) Total Unsecured Indebtedness at such time to (b) the Aggregate Qualified Asset Amount at such time.

“USA PATRIOT Act” means United States Public Law 107-56, Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001 and the rules and regulations promulgated thereunder from time to time in effect.

“U.S. Economic Sanctions Laws” means those laws, executive orders, enabling legislation or regulations administered and enforced by the United States pursuant to which economic sanctions have been imposed on any Person, entity, organization, country or regime, including the Trading with the Enemy Act, the International Emergency Economic Powers Act, the Iran Sanctions Act, the Sudan Accountability and Divestment Act and any other OFAC Sanctions Program.

“Wholly-Owned” means, with respect to a Subsidiary of a Person, a Subsidiary of such Person all of the outstanding Capital Stock of which (other than director’s qualifying shares and nominal holdings) are owned by such Person and/or by one or more Wholly-Owned Subsidiaries of such Person.

 

A-21


FORM OF SERIES C NOTE

AMERICOLD REALTY OPERATING PARTNERSHIP, L.P.

4.10% SERIES C GUARANTEED SENIOR NOTE DUE JANUARY 8, 2030

 

No. CR-___                        , 20    
$_______    PPN 03063# AC8

FOR VALUE RECEIVED, the undersigned, AMERICOLD REALTY OPERATING PARTNERSHIP, L.P. (herein called the “Issuer”), a limited partnership organized and existing under the laws of the State of Delaware, hereby promises to pay to ____________, or registered assigns, the principal sum of _____________________ DOLLARS (or so much thereof as shall not have been prepaid) on January 8, 2030 (the “Maturity Date”), with interest (computed on the basis of a 360-day year of twelve 30-day months) (a) on the unpaid balance hereof at the rate of 4.10% per annum from the date hereof, payable semiannually, on the 8th day of January and July in each year, commencing with the January 8th [or July 8th]1 next succeeding the date hereof, and on the Maturity Date, until the principal hereof shall have become due and payable, and (b) to the extent permitted by law, (1) on any overdue payment of interest and (2) during the continuance of an Event of Default, on such unpaid balance and on any overdue payment of any Make-Whole Amount, at a rate per annum from time to time equal to the greater of (i) 6.10% or (ii) 2.00% over the rate of interest publicly announced by Bank of America, N.A. from time to time in New York, New York as its “base” or “prime” rate, payable semiannually as aforesaid (or, at the option of the registered holder hereof, on demand).

Payments of principal of, interest on and any Make-Whole Amount with respect to this Note are to be made in lawful money of the United States at the principal office of Bank of America, N.A. in New York, New York or at such other place as the Issuer shall have designated by written notice to the holder of this Note as provided in the Note Agreement referred to below.

This Note is one of a series of Senior Notes (herein called the “Notes”) issued pursuant to the Note and Guaranty Agreement, dated as of May 7, 2019 (as from time to time amended, the “Note Agreement”), among the Issuer, Americold Realty Trust and the respective Purchasers named therein and is entitled to the benefits thereof. Each holder of this Note will be deemed, by its acceptance hereof, to have (a) agreed to the confidentiality provisions set forth in Section 21 of the Note Agreement and (b) made the representation set forth in Section 6.3 of the Note Agreement. Unless otherwise indicated, capitalized terms used in this Note shall have the respective meanings ascribed to such terms in the Note Agreement.

 

1 

Bracketed language to be included for Notes issued after January 8, 2030

 

SCHEDULE 1(c)

(to Note and Guaranty Agreement)


This Note is a registered Note and, as provided in the Note Agreement, upon surrender of this Note for registration of transfer accompanied by a written instrument of transfer duly executed, by the registered holder hereof or such holder’s attorney duly authorized in writing, a new Note for a like principal amount will be issued to, and registered in the name of, the transferee. Prior to due presentment for registration of transfer, the Issuer may treat the Person in whose name this Note is registered as the owner hereof for the purpose of receiving payment and for all other purposes, and the Issuer will not be affected by any notice to the contrary.

This Note is subject to optional prepayment, in whole or from time to time in part, at the times and on the terms specified in the Note Agreement, but not otherwise.

If an Event of Default occurs and is continuing, the principal of this Note may be declared or otherwise become due and payable in the manner, at the price (including any applicable Make-Whole Amount) and with the effect provided in the Note Agreement.

This Note shall be construed and enforced in accordance with, and the rights of the Issuer and the holder of this Note shall be governed by, the law of the State of New York excluding choice-of-law principles of the law of such State that would permit the application of the laws of a jurisdiction other than such State.

 

AMERICOLD REALTY OPERATING

PARTNERSHIP, L.P.

By    
  Name
  Title

 

SCH 1(c) - 2


FORM OF OPINION OF SPECIAL COUNSEL

TO THE CONSTITUENT COMPANIES AND THE SUBSIDIARY GUARANTORS

The closing opinions of King & Spalding LLP, counsel to the Constituent Companies and the Subsidiary Guarantors, Venable LLP, Maryland counsel to the Constituent Companies and the Subsidiary Guarantors, Greenberg Traurig LLP, Massachusetts counsel to the Constituent Companies and the Subsidiary Guarantors, Smith, Slusky, Pohren & Rogers, LLP, Nebraska counsel to the Constituent Companies and the Subsidiary Guarantors, and Stoel Rives LLP, Minnesota counsel to the Constituent Companies and the Subsidiary Guarantors, which are called for by Section 4.4(a) of the Agreement, shall be dated the date of the Closing and addressed to each Purchaser, shall be satisfactory in scope and form to each Purchaser and shall be collectively to the effect that:

1. The Issuer is a limited partnership duly organized and validly existing and in good standing under the laws of Delaware and has the corporate power and authority to conduct its business as currently conducted and currently proposed to be conducted, to execute and deliver the Agreement and the Notes and to perform the provisions thereof. The Parent Guarantor is a real estate investment trust duly organized and validly existing and in good standing under the laws of Maryland and has the trust power and authority to conduct its business as currently conducted and currently proposed to be conducted, to execute and deliver the Agreement and to perform the provisions thereof. Each Subsidiary Guarantor is a corporation or other entity duly organized and validly existing and in good standing under the laws of the State of its organization and has the corporate or other power and authority to conduct its business as currently conducted and currently proposed to be conducted, to execute and deliver the Subsidiary Guaranty Agreement and the Notes and to perform the provisions thereof.

2. The Agreement has been duly authorized, executed and delivered by the Issuer and the Parent Guarantor and constitutes a legal, valid and binding agreement of the Issuer and the Parent Guarantor, enforceable against the Issuer and the Parent Guarantor in accordance with its terms. The Subsidiary Guaranty Agreement has been duly authorized, executed and delivered by each Subsidiary Guarantor and constitutes a legal, valid and binding agreement of each Subsidiary Guarantor, enforceable against such Subsidiary Guarantor in accordance with its terms.

3. The Notes being issued at the Closing have been duly authorized, executed and delivered by the Issuer and constitute legal, valid and binding obligations of the Issuer, enforceable against the Issuer in accordance with their terms.

4. No consent, approval or authorization of, or registration, filing or declaration with, any Governmental Authority is required in connection with the execution, delivery or performance by (a) the Issuer of the Agreement or the Notes, (b) the Parent Guarantor of the Agreement or (c) any Subsidiary Guarantor of the Subsidiary Guaranty Agreement.

5. It was not necessary in connection with the offering, sale and delivery of the Notes being issued at the Closing or the delivery of the Parent Guaranty, under the circumstances contemplated by the Agreement, to register said Notes or the Parent Guaranty under the Securities Act of 1933 or to qualify an indenture in respect of the Notes or the Parent Guaranty under the Trust Indenture Act of 1939.

 

SCHEDULE 4.4 (a)

(to Note and Guaranty Agreement)


6. The execution, delivery and performance by (a) the Issuer of the Agreement and the Notes, (b) the Parent Guarantor of the Agreement and (c) each Subsidiary Guarantor of the Subsidiary Guaranty Agreement do not and will not (1) contravene, result in any breach of, or constitute a default under, or result in the creation of any Lien in respect of any property of the Parent Guarantor or any Subsidiary under, any indenture, mortgage, deed of trust, loan, purchase or credit agreement, lease, corporate charter, regulations, by-laws or other constituent document or any other agreement or instrument to which the Parent Guarantor or any Subsidiary is bound or by which the Parent Guarantor or any Subsidiary or any of their respective properties may be bound or affected, (2) conflict with or result in a breach of any of the terms, conditions or provisions of any order, judgment, decree or ruling of any court, arbitrator or Governmental Authority applicable to the Parent Guarantor or any Subsidiary or (3) violate any provision of any statute or other rule or regulation of any Governmental Authority applicable to the Parent Guarantor or any Subsidiary.

7. None of the Parent Guarantor, the Issuer or any Subsidiary Guarantor is required to register as an “investment company” under the Investment Company Act of 1940.

8. None of the transactions contemplated by the Agreement (including, the use of the proceeds from the sale of the Notes) will violate or result in a violation of Regulation T, U or X of the Board of Governors of the United States Federal Reserve System, 12 CFR, Part 220, Part 221 and Part 224, respectively.

The opinions of King & Spalding LLP, Venable LLP, Greenberg Traurig LLP, Smith, Slusky, Pohren & Rogers, LLP and Stoel Rives LLP shall collectively cover such other matters relating to the sale of the Notes as any Purchaser may reasonably request and shall each provide that (i) subsequent holders of the Notes may rely upon such opinion and (ii) such opinion may be provided to Governmental Authorities including the National Association of Insurance Commissioners. With respect to matters of fact on which such opinions are based, such counsel shall be entitled to rely on appropriate certificates of public officials and officers of the Constituent Companies and the Subsidiary Guarantors.

 

SCH 4.4 (a) - 2


FORM OF OPINION OF SPECIAL COUNSEL

FOR THE PURCHASERS

The closing opinion of Schiff Hardin LLP, special counsel to the Purchasers, called for by Section 4.4(b) of the Agreement, shall be dated the date of the Closing and addressed to the Purchasers, shall be satisfactory in form and substance to the Purchasers and shall be to the effect that:

1. The Issuer is a limited partnership in good standing under the laws of the State of Delaware.

2. The Parent Guarantor is a real estate investment trust in good standing under the laws of the State of Maryland.

3. The Agreement and the Notes being delivered on the date hereof constitute the legal, valid and binding contracts of the Issuer enforceable against the Issuer in accordance with their respective terms.

4. The Agreement constitutes the legal, valid and binding contract of the Parent Guarantor enforceable against the Parent Guarantor in accordance with its terms.

5. The issuance, sale and delivery of the Notes being delivered on the date hereof under the circumstances contemplated by the Agreement, and on the basis of the representations made by the Constituent Companies in Section 5.13 of the Agreement and by the Purchasers in Section 6.1 of the Agreement, do not, under existing law, require the registration of such Notes under the Securities Act or the qualification of an indenture under the Trust Indenture Act of 1939.

The opinion of Schiff Hardin LLP shall also state that the opinions of King & Spalding LLP, Venable LLP, Greenberg Traurig LLP, Smith, Slusky, Pohren & Rogers, LLP, and Stoel Rives LLP are satisfactory in scope and form to Schiff Hardin LLP and that, in its opinion, the Purchasers are justified in relying thereon.

The opinion of Schiff Hardin LLP is limited to the laws of the State of New York and the federal laws of the United States.

With respect to matters of fact upon which such opinion is based, Schiff Hardin LLP may rely on appropriate certificates of public officials and officers of the Issuer and the Parent Guarantor and upon representations of the Issuer, the Parent Guarantor and the Purchasers delivered in connection with the issuance and sale of the Notes.

 

SCHEDULE 4.4(b)

(to Note and Guaranty Agreement)


DISCLOSURE MATERIALS

Private Placement Memorandum dated October 2018

Annual Report on Form 10-K for the fiscal year ended December 31, 2017

Annual Report on Form 10-K for the fiscal year ended December 31, 2018

Current Report on Form 8-K filed with the SEC on April 16, 2019

 

SCHEDULE 5.3

(to Note and Guaranty Agreement)


SUBSIDIARIES OF THE PARENT GUARANTOR AND

OWNERSHIP OF SUBSIDIARY STOCK; AFFILIATES; DIRECTORS AND SENIOR OFFICERS

(i) Subsidiaries:

 

Subsidiary

  

Jurisdiction of
Incorporation

  

Owner

   Percentage of
Ownership
   Subsidiary
Guarantor
(Yes or No)
Americold 2010 LLC    Delaware    Americold MFL 2010 LLC    100%    No
Americold Acquisition Partnership GP LLC    Delaware    Americold Realty Operating Partnership, L.P.    100%    No
Americold Acquisition, LLC    Delaware    Americold Realty Operating Partnership, L.P.    100%    Yes
Americold Australia PTY Ltd.    Australia    Icicle Australia Property PTY Limited    100%    No
Americold Australia Realty Trust    Australia    Icecap Australia MIT Holding, LLC    99%    No
Americold Australia Realty Trust    Australia    ART Icecap Holdings LLC    1%    No
Americold Australian Holdings PTY Ltd.    Australia    Icecap Properties AU LLC    100%    No
Americold Australian Logistics PTY Ltd.    Australia    Americold Logistics Limited    100%    No
Americold Brisbane Realty Trust    Australia    Americold Australia Realty Trust    100%    No
Americold Clearfield Opco, LLC    Delaware    AmeriCold Logistics, LLC    100%    No
Americold Clearfield Propco, LLC    Delaware    Americold Realty Operating Partnership, L.P.    100%    Yes
Americold Food Logistics PTY Ltd.    Australia    Americold Logistics Limited    100%    No
Americold Hawkeye Parent, LLC    Delaware    Americold Realty Operating Partnership, L.P.    100%    No

 

SCHEDULE 5.4

(to Note and Guaranty Agreement)


Subsidiary

  

Jurisdiction of
Incorporation

  

Owner

   Percentage of
Ownership
   Subsidiary
Guarantor
(Yes or No)
Americold Investments PTY Ltd.    Australia    Americold Australia PTY LTD    100%    No
Americold Logistics Hong Kong Limited    China    ART AL Holding LLC    100%    No
Americold Logistics Limited    Australia    Americold Australia PTY LTD    100%    No
Americold Logistics Services NZ Ltd.    New Zealand    Americold NZ Limited    100%    No
AmeriCold Logistics, LLC    Delaware    ART AL Holding LLC    100%    Yes
Americold Melbourne Realty Trust    Australia    Americold Australia Realty Trust    100%    No
Americold MFL 2010 LLC    Delaware    Americold Realty Operating Partnership, L.P.    100%    No
Americold Middleboro Opco, LLC    Delaware    AmeriCold Logistics, LLC    100%    No
Americold Middleboro Propco, LLC    Delaware    Americold Realty Operating Partnership, L.P.    100%    Yes
Americold Nebraska Leasing LLC    Nebraska    AmeriCold Logistics, LLC    100%    Yes
Americold NZ Limited    New Zealand    Icicle NZ Property Limited    100%    No
Americold Propco Phoenix Van Buren LLC    Delaware    Americold Realty Operating Partnership, L.P.    100%    Yes
Americold Property PTY Ltd.    Australia    Americold Australian Holdings PTY Ltd.    100%    No
AmeriCold Real Estate, L.P.    Delaware    Americold Realty Operating Partnership, L.P.    99% LP    Yes
AmeriCold Real Estate, L.P.    Delaware    Americold Realty LLC    1% GP    Yes
Americold Realty Australia Management Pty Ltd    Australia    Americold Australian Holdings Pty. Ltd.    100%    No
Americold Realty Hong Kong Limited    Hong Kong    Americold Realty Operating Partnership, L.P.    100%    No

 

SCH 5.4-2


Subsidiary

  

Jurisdiction of
Incorporation

  

Owner

   Percentage of
Ownership
   Subsidiary
Guarantor
(Yes or No)
Americold Realty LLC    Delaware    Americold Realty Operating Partnership, L.P.    100%    Yes
Americold Realty Operating Partnership, L.P.    Delaware    Americold Realty Trust    99% GP    Yes
Americold Realty Operating Partnership, L.P.    Delaware    Americold Realty Operations, Inc.    1% LP    Yes
Americold Realty Operations, Inc.    Delaware    Americold Realty Trust    100%    No
Americold Realty State Management Pty Ltd.    Australia    Americold Realty Australia Management Pty Ltd    100%    No
Americold San Antonio Propco, LLC    Delaware    Americold Realty Operating Partnership, L.P.    100%    Yes
Americold Storage NB PTY Ltd.    Australia    AmeriCold Logistics Limited    100%    No
Americold Sydney Realty Trust    Australia    Americold Australia Realty Trust    100%    No
Americold Transportation Services, LLC    Delaware    ART AL Holding LLC    100%    Yes
Americold Transportation, LLC    Delaware    ART Mortgage Borrower Opco 2010 – 5 LLC    100%    No
AMLOG Canada Inc.    Canada    AmeriCold Logistics, LLC    100%    No
ART AL Holding LLC    Delaware    Americold Realty Operating Partnership, L.P.    100%    Yes
ART First Mezzanine Borrower GP LLC    Delaware    ART Second Mezzanine Borrower, L.P.    100%    Yes
ART First Mezzanine Borrower Opco 2006-2 L.P.    Delaware    AmeriCold Logistics, LLC    99.9% LP    Yes
ART First Mezzanine Borrower Opco 2006-2 L.P.    Delaware    ART FIRST MEZZANINE BORROWER OPCO GP 2006- 2 LLC    0.1% GP    Yes    

 

SCH 5.4-3


Subsidiary

  

Jurisdiction of
Incorporation

  

Owner

   Percentage of
Ownership
   Subsidiary
Guarantor
(Yes or No)
ART First Mezzanine Borrower Opco 2006-3 L.P.    Delaware    AmeriCold Logistics, LLC    99.9% LP    No
ART First Mezzanine Borrower Opco 2006-3 L.P.    Delaware    ART First Mezzanine Borrower Opco GP 2006-3 LLC    0.1% GP    No
ART FIRST MEZZANINE BORROWER OPCO GP 2006-2 LLC    Delaware    AmeriCold Logistics, LLC    100%    Yes
ART First Mezzanine Borrower Opco GP 2006-3 LLC    Delaware    AmeriCold Logistics, LLC    100%    No
ART First Mezzanine Borrower Propco 2006-2 L.P.    Delaware    Americold Realty Operating Partnership, L.P.    99.9% LP    Yes
ART First Mezzanine Borrower Propco 2006-2 L.P.    Delaware    ART FIRST MEZZANINE BORROWER PROPCO GP 2006-2 LLC    0.1% GP    Yes
ART First Mezzanine Borrower Propco 2006-3 L.P.    Delaware    Americold Realty Operating Partnership, L.P.    99.9% LP    No
ART First Mezzanine Borrower Propco 2006-3 L.P.    Delaware    ART First Mezzanine Borrower Propco GP 2006-3 LLC    0.1% GP    No
ART FIRST MEZZANINE BORROWER PROPCO GP 2006-2 LLC    Delaware    Americold Realty Operating Partnership, L.P.    100%    Yes
ART First Mezzanine Borrower Propco GP 2006-3 LLC    Delaware    Americold Realty Operating Partnership, L.P    100%    No
ART First Mezzanine Borrower, L.P.    Delaware    ART Second Mezzanine Borrower, L.P.    99.9% LP    Yes
ART First Mezzanine Borrower, L.P.    Delaware    ART First Mezzanine Borrower GP LLC    0.1% GP    Yes

 

SCH 5.4-4


Subsidiary

  

Jurisdiction of
Incorporation

  

Owner

   Percentage of
Ownership
   Subsidiary
Guarantor
(Yes or No)
ART Icecap Holdings LLC    Delaware    Americold Realty Operating Partnership, L.P.    100%    Yes
ART Leasing LLC    Delaware    AmeriCold Logistics, LLC    100%    No
ART Manager L.L.C.    Delaware    Americold Realty Operating Partnership, L.P.    100%    Yes
ART Mezzanine Borrower Opco 2013 LLC    Delaware    ART Second Mezzanine Borrower Opco 2013 LLC    100%    No
ART Mezzanine Borrower Propco 2013 LLC    Delaware    ART Second Mezzanine Borrower Propco 2013 LLC    100%    No
ART Mortgage Borrower GP LLC    Delaware    ART First Mezzanine Borrower, L.P.    100%    Yes
ART Mortgage Borrower Opco 2006-1A L.P.    Delaware    AmeriCold Logistics, LLC    99.9% LP    Yes
ART Mortgage Borrower Opco 2006-1A L.P.    Delaware    ART Mortgage Borrower Opco GP 2006-1A LLC    0.1% GP    Yes
ART Mortgage Borrower Opco 2006-1B L.P.    Delaware    AmeriCold Logistics, LLC    99.9% LP    Yes
ART Mortgage Borrower Opco 2006-1B L.P.    Delaware    ART Mortgage Borrower Opco GP 2006-1B LLC    0.1% GP    Yes
ART Mortgage Borrower Opco 2006-1C L.P.    Delaware    AmeriCold Logistics, LLC    99.9% LP    Yes
ART Mortgage Borrower Opco 2006-1C L.P.    Delaware    ART Mortgage Borrower Opco GP 2006-1C LLC    0.1% GP    Yes
ART Mortgage Borrower Opco 2006-2 L.P.    Delaware    ART First Mezzanine Borrower Opco 2006-2 L.P.    99.9% LP    Yes
ART Mortgage Borrower Opco 2006-2 L.P.    Delaware    ART MORTGAGE BORROWER OPCO GP 2006-2 LLC    0.1% GP    Yes

 

SCH 5.4-5


Subsidiary

  

Jurisdiction of
Incorporation

  

Owner

   Percentage of
Ownership
   Subsidiary
Guarantor
(Yes or No)
ART Mortgage Borrower Opco 2006-3 L.P.    Delaware    ART First Mezzanine Borrower Opco 2006-3 L.P.    99.9% LP    No
ART Mortgage Borrower Opco 2006-3 L.P.    Delaware    ART Mortgage Borrower Opco GP 2006-3 LLC    0.1% GP    No
ART Mortgage Borrower Opco 2010 -4 LLC    Delaware    AmeriCold Logistics, LLC    100%    Yes
ART Mortgage Borrower Opco 2010 -5 LLC    Delaware    Versacold Atlas Logistics Services USA LLC    100%    Yes
ART Mortgage Borrower Opco 2010 -6 LLC    Delaware    Versacold Texas, L.P.    100%    Yes
ART Mortgage Borrower Opco 2013 LLC    Delaware    ART Mezzanine Borrower Opco 2013 LLC    100%    No
ART Mortgage Borrower Opco GP 2006-1A LLC    Delaware    AmeriCold Logistics, LLC    100%    Yes
ART Mortgage Borrower Opco GP 2006-1B LLC    Delaware    AmeriCold Logistics, LLC    100%    Yes
ART Mortgage Borrower Opco GP 2006-1C LLC    Delaware    AmeriCold Logistics, LLC    100%    Yes
ART MORTGAGE BORROWER OPCO GP 2006-2 LLC    Delaware    ART First Mezzanine Borrower Opco 2006-2 L.P.    100%    Yes
ART Mortgage Borrower Opco GP 2006-3 LLC    Delaware    ART First Mezzanine Borrower Opco 2006-3 L.P.    100%    No
ART Mortgage Borrower Propco 2006-1A L.P.    Delaware    Americold Realty Operating Partnership, L.P.    99.9% LP    Yes
ART Mortgage Borrower Propco 2006-1A L.P.    Delaware    ART Mortgage Borrower Propco GP 2006-1A LLC    0.1% GP    Yes
ART Mortgage Borrower Propco 2006-1B L.P.    Delaware    Americold Realty Operating Partnership, L.P.    99.9% LP    Yes

 

SCH 5.4-6


Subsidiary

  

Jurisdiction of
Incorporation

  

Owner

   Percentage of
Ownership
   Subsidiary
Guarantor
(Yes or No)
ART Mortgage Borrower Propco 2006-1B L.P.    Delaware    ART Mortgage Borrower Propco GP 2006-1B LLC    0.1% GP    Yes
ART Mortgage Borrower Propco 2006-1C L.P.    Delaware    Americold Realty Operating Partnership, L.P.    99.9% LP    Yes
ART Mortgage Borrower Propco 2006-1C L.P.    Delaware    ART Mortgage Borrower Propco GP 2006-1C LLC    0.1% GP    Yes
ART Mortgage Borrower Propco 2006-2 L.P.    Delaware    ART First Mezzanine Borrower Propco 2006-2 L.P.    99.9% LP    Yes
ART Mortgage Borrower Propco 2006-2 L.P.    Delaware    ART MORTGAGE BORROWER PROPCO GP 2006-2 LLC    0.1% GP    Yes
ART Mortgage Borrower Propco 2006-3 L.P.    Delaware    ART First Mezzanine Borrower Propco 2006-3 L.P.    99.9% LP    No
ART Mortgage Borrower Propco 2006-3 L.P.    Delaware    ART Mortgage Borrower Propco GP 2006-3 LLC    0.1% GP    No
ART Mortgage Borrower Propco 2010 -4 LLC    Delaware    Americold Realty Operating Partnership, L.P.    100%    Yes
ART Mortgage Borrower Propco 2010 -5 LLC    Delaware    Versacold Logistics, LLC    100%    Yes
ART Mortgage Borrower Propco 2010 -6 LLC    Delaware    Versacold Texas, L.P.    100%    Yes
ART Mortgage Borrower Propco 2013 LLC    Delaware    ART Mezzanine Borrower Propco 2013 LLC    100%    No

 

SCH 5.4-7


Subsidiary

  

Jurisdiction of
Incorporation

  

Owner

   Percentage of
Ownership
   Subsidiary
Guarantor
(Yes or No)
ART Mortgage Borrower Propco GP 2006-1A LLC    Delaware    Americold Realty Operating Partnership, L.P.    100%    Yes
ART Mortgage Borrower Propco GP 2006-1B LLC    Delaware    Americold Realty Operating Partnership, L.P.    100%    Yes
ART Mortgage Borrower Propco GP 2006-1C LLC    Delaware    Americold Realty Operating Partnership, L.P    100%    Yes
ART MORTGAGE BORROWER PROPCO GP 2006-2 LLC    Delaware    ART First Mezzanine Borrower Propco 2006-2 L.P.    100%    Yes
ART Mortgage Borrower Propco GP 2006-3 LLC    Delaware    ART First Mezzanine Borrower Propco 2006-3 L.P.    100%    No
ART Mortgage Borrower, L.P.    Delaware    ART First Mezzanine Borrower, L.P.    99.9% LP    Yes
ART Mortgage Borrower, L.P.    Delaware    ART Mortgage Borrower GP LLC    0.1% GP    Yes
ART QUARRY TRS LLC    Delaware    ART AL Holding LLC    100%    Yes
ART Second Mezzanine Borrower GP LLC    Delaware    Americold Realty Operating Partnership, L.P.    100%    Yes
ART Second Mezzanine Borrower Opco 2013 LLC    Delaware    ART Third Mezzanine Borrower Opco 2013 LLC    100%    No
ART Second Mezzanine Borrower Propco 2013 LLC    Delaware    ART Third Mezzanine Borrower Propco 2013 LLC    100%    No
ART Second Mezzanine Borrower, L.P.    Delaware    Americold Realty Operating Partnership, L.P.    99.9% LP    Yes
ART Second Mezzanine Borrower, L.P.    Delaware    ART Second Mezzanine Borrower GP LLC    0.1% GP    Yes

 

SCH 5.4-8


Subsidiary

  

Jurisdiction of
Incorporation

  

Owner

   Percentage of
Ownership
   Subsidiary
Guarantor
(Yes or No)
ART Third Mezzanine Borrower Opco 2013 LLC    Delaware    AmeriCold Logistics, LLC    100%    No
ART Third Mezzanine Borrower Propco 2013 LLC    Delaware    Americold Realty Operating Partnership, L.P.    100%    No
Atlas Cold Storage Logistics LLC    Minnesota    Versacold Atlas Logistics Services USA LLC    100%    Yes
Atlas Logistics Group Retail Services (Atlanta) LLC    Delaware    Atlas Cold Storage Logistics LLC    100%    Yes
Atlas Logistics Group Retail Services (Denver) LLC    Minnesota    Atlas Cold Storage Logistics LLC    100%    Yes
Atlas Logistics Group Retail Services (Phoenix) LLC    Delaware    Atlas Cold Storage Logistics LLC    100%    Yes
Atlas Logistics Group Retail Services (Roanoke) LLC    Delaware    Atlas Cold Storage Logistics LLC    100%    Yes
Atlas Logistics Group Retail Services (Shelbyville) LLC    Delaware    Atlas Cold Storage Logistics LLC    100%    No
BestDamnMeat LLC    Arkansas    Zero Mountain LLC    100%    No
Blockchain Transport, LLC    Arkansas    Zero Mountain Logistics, LLC    100%    No
CCS Realty Holdco LLC    Delaware    CCS Realty, LLC    100%    No
CCS Realty Mezz A LLC    Delaware    CCS Realty Mezz B LLC    100%    No
CCS Realty Mezz B LLC    Delaware    CCS Realty Holdco LLC    100%    No
CCS Realty Property Owner LLC    Delaware    CCS Realty Mezz A LLC    100%    No
CCS Realty, LLC    Iowa    Cloverleaf Cold Storage, LLC    100%    No

 

SCH 5.4-9


Subsidiary

  

Jurisdiction of
Incorporation

  

Owner

   Percentage of
Ownership
   Subsidiary
Guarantor
(Yes or No)
Chiller Holdco, LLC    Delaware    Americold Realty Trust    100%    No
Chiller Midco, LLC    Delaware    Chiller Holdco, LLC    100%    No

Cloverleaf Cold

Storage Co., LLC

   Ohio    Cloverleaf Cold Storage Iowa Co.    7.1%    No

Cloverleaf Cold

Storage Co., LLC

   Ohio    Cloverleaf Cold Storage, LLC    92.9%    No
Cloverleaf Cold Storage Iowa Co.    Iowa    Cloverleaf Cold Storage, LLC    100%    No
Cloverleaf Cold Storage, LLC    Delaware    Chiller Midco, LLC    100%    No
Cold Logic ULC    British Columbia, Canada    AMLOG Canada Inc.    100%    No
Cold Pasteurization, Inc.    Delaware    Zero Mountain LLC    100%    No
Cold Pasteurization, LLC    Arkansas    Zero Mountain LLC    100%    No

Fairmont Refrigerated

Service, LLC

   Minnesota    Cloverleaf Cold Storage, LLC    100%    No
Icecap Australia MIT Holding LLC    Delaware    Americold Realty Trust    100%    No
Icecap Australia Realty Trust    Australia    Icecap Australia MIT Holding LLC    99%    No
Icecap Australia Realty Trust    Australia    ART Icecap Holdings LLC    1%    No
Icecap Properties AU LLC    Delaware    ART Icecap Holdings LLC    100%    No
Icecap Properties NZ Holdings LLC    Delaware    ART Icecap Holdings LLC    100%    No
Icecap Properties NZ Limited LLC    New Zealand    Icecap Properties NZ Holdings LLC    100%    No
Inland Quarries, L.L.C.    Delaware    ART QUARRY TRS LLC    100%    No
KC Underground, L.L.C.    Delaware    AmeriCold Logistics, LLC    100%    Yes

 

SCH 5.4-10


Subsidiary

  

Jurisdiction of
Incorporation

  

Owner

   Percentage of
Ownership
   Subsidiary
Guarantor
(Yes or No)
KCL Equipment Owner LLC    Delaware    KCL Mezz A LLC    100%    No
KCL Holdco LLC    Delaware    Keycity Leasing Company    100%    No
KCL Mezz A LLC    Delaware    KCL Mezz B LLC    100%    No
KCL Mezz B LLC    Delaware    KCL Holdco LLC    100%    No
KCL Other Equipment Owner LLC    Delaware    KCL Holdco LLC    100%    No
Keycity Leasing Company    Minnesota    Cloverleaf Cold Storage, LLC    100%    No
K-F Real Estate, LLC    Iowa    Cloverleaf Cold Storage, LLC    100%    No
Portfresh Development, LLC    Delaware    Portfresh Holdings, LLC    100%    No
Portfresh Holdings, LLC    Delaware    Americold Realty Operating Partnership, L.P.    100%    No
Savannah Cold Storage, LLC (d/b/a Portfresh Logistics)    Delaware    Portfresh Holdings, LLC    100%    No
Second Street, LLC    Iowa    Cloverleaf Cold Storage, LLC    100%    No
URS Real Estate, L.P.    Delaware    Americold Realty Operating Partnership, L.P.    99% LP    No
URS Real Estate, L.P.    Delaware    URS Realty, LLC    1% GP    No
URS Realty, LLC    Delaware    Americold Realty Operating Partnership, L.P    100%    No
VCD Pledge Holdings, LLC    Delaware    Versacold USA, LLC    100%    Yes
Versacold Atlas Logistics Services USA LLC    Delaware    ART AL Holding LLC    100%    Yes
Versacold Logistics Argentina SA    Argentina    Americold Logistics Limited    90%    No
Versacold Logistics Argentina SA    Argentina    Americold Storage NB PTY Ltd.    10%    No
Versacold Logistics, LLC    Delaware    Versacold USA, LLC    100%    Yes
Versacold Midwest LLC    Delaware    Versacold Atlas Logistics Services USA LLC    100%    Yes

 

SCH 5.4-11


Subsidiary

  

Jurisdiction of
Incorporation

  

Owner

   Percentage of
Ownership
   Subsidiary
Guarantor
(Yes or No)
Versacold Northeast Logistics, LLC    Massachusetts    ART AL Holding LLC    100%    Yes
Versacold Northeast, Inc.    Massachusetts    ART AL Holding LLC    100%    Yes
Versacold Texas, L.P.    Texas    Versacold USA, LLC    99% LP    Yes
Versacold Texas, L.P.    Texas    Americold Realty Operating Partnership, L.P.    1% GP    Yes
Versacold USA, LLC    Delaware    ART Icecap Holdings LLC    100%    Yes
Zero Mountain Aviation, LLC    Arkansas    Zero Mountain LLC    100%    No
Zero Mountain Logistics, LLC    Oklahoma    Zero Mountain LLC    100%    No
Zero Mountain LLC    Arkansas    Cloverleaf Cold Storage, LLC    100%    No
Z-Foods, Inc.    Arkansas    Zero Mountain LLC    100%    No
ZM Holdco LLC    Delaware    Zero Mountain LLC    100%    No
ZM Mezz A LLC    Delaware    ZM Mezz B LLC    100%    No
ZM Mezz B LLC    Delaware    ZM Holdco LLC    100%    No
ZM NLR Holdco LLC    Delaware    Zero Mountain LLC    100%    No
ZM NLR Mezz A LLC    Delaware    ZM NLR Mezz B LLC    100%    No
ZM NLR Mezz B LLC    Delaware    ZM Holdco LLC    100%    No
ZM NLR Property Owner LLC    Delaware    ZM NLR Mezz A LLC    100%    No
ZM Property Owner LLC    Delaware    ZM Mezz A LLC    100%    No
ZM Waco Holdco LLC    Delaware    Zero Mountain LLC    100%    No
ZM Waco Property Owner LLC    Delaware    ZM Waco Holdco LLC    100%    No
ZMI Leasing,LLC    Oklahoma    Zero Mountain LLC    100%    No
ZMI Transportation Co., LLC    Arkansas    Zero Mountain LLC    100%    No

 

(ii)

Unconsolidated Affiliates:

China Joint Venture:

 

 

SCH 5.4-12


Affiliate

  

Jurisdiction of

Incorporation

  

Owner

   Percentage of
Ownership
   Subsidiary Guarantor
(Yes or No)
China Merchants Americold Logistics Company, Limited    British Virgin Islands    Americold Logistics Hong Kong Limited    49%    No
China Merchants Americold Logistics (Hong Kong) Limited    Hong Kong    China Merchants Americold Logistics Company, Limited    100%    No
Kang Xin Logistics (Tianjin) Ltd.    China    China Merchants Americold Logistics (Hong Kong) Limited    100%    No
China Merchants Americold Holdings Company, Limited    British Virgin Islands    Americold Realty Hong Kong Limited, Inc.    49%    No
China Merchants Americold Logistics (Hong Kong) Holdings Company, Limited    Hong Kong    China Merchants Americold Holdings Company, Limited    100%    No
Kang Xin Logistics (Harbin) Co., Ltd.    China    China Merchants Americold Logistics (Hong Kong) Holdings Company, Limited    100%    No
Rich Products (Tianjin) Co., Ltd.    China    China Merchants Americold Logistics (Hong Kong) Holdings Company, Limited    100%    No
Asia Zone Investment Limited    China    China Merchants Americold Holdings Company, Limited    100%    No
China Merchants Cold Chain Logistics Limited    British Virgin Islands    Asia Zone Investment Limited    70%    No

 

SCH 5.4-13


Affiliate

  

Jurisdiction of

Incorporation

  

Owner

   Percentage of
Ownership
   Subsidiary Guarantor
(Yes or No)
China Merchants Cold Chain Logistics (Hong Kong) Limited    Hong Kong    China Merchants Cold Chain Logistics Limited    100%    No
China Merchants International Cold Chain (Shenzhen) Company Limited    China    China Merchants Cold Chain Logistics (Hong Kong) Limited    100%    No

 

(iii)

Trustees and Senior Officers of the Parent Guarantor:

Senior Officers

 

Name

  

Position

Fred W. Boehler    Chief Executive Officer, President and Trustee
Marc J. Smernoff    Chief Financial Officer and Executive Vice President
Carlos V. Rodriguez    Chief Operating Officer and Executive Vice President
David K. Stuver    Executive Vice President, Business Development and Supply Chain Solutions
James C. Snyder, Jr.    Chief Legal Officer and Executive Vice President
Thomas C. Novosel    Chief Accounting Officer and Senior Vice President
James Harron    Executive Vice President and Chief Investment Officer
Sanjay Lall    Executive Vice President and Chief Information Officer

 

SCH 5.4-14


Trustees

 

Name

  

Position

George J. Alburger, Jr.    Trustee*
Ronald W. Burkle    Trustee
Jeffrey M. Gault    Chairman of the Board of Trustees
Bradley J. Gross    Trustee*
James R. Heistand    Trustee*
Michelle M. MacKay    Trustee*
Mark R. Patterson    Trustee*
Andrew P. Power    Trustee*

 

   

Independent

 

(iv)

Directors and Senior Officers of the Issuer:

Directors

N/A

Senior Officers

 

Officer

  

Position

Fred W. Boehler    Chief Executive Officer and President
Marc J. Smernoff    Executive Vice President and Chief Financial Office
James C. Snyder, Jr.    Executive Vice President, General Counsel and Secretary
Russell Scott Henderson    Senior Vice President and Treasurer
Dwight W. Smith    Vice President, Tax
Daniel C. Deckbar    Vice President and Assistant Secretary

 

SCH 5.4-15


FINANCIAL STATEMENTS

Annual Report on Form 10-K filed with the SEC for the annual period ended December 31, 2017.

Annual Report on Form 10-K filed with the SEC for the annual period ended December 31, 2018.

 

SCHEDULE 5.5

(to Note and Guaranty Agreement)


EXISTING INDEBTEDNESS OF THE PARENT GUARANTOR AND ITS SUBSIDIARIES

(As of December 31, 2018)

 

Obligor(s)    Creditor    Class    CUSIP or ISIN
(if Applicable)
  

Description

of

Indebtedness

  

Interest

Rates

   Collateral   

Final

Maturity

  

Outstanding

Principal

Amount

(12/31/2018)

ART Mortgage Borrower Propco 2013 LLC,

ART Mortgage Borrower Opco 2013 LLC

   CMBS    A1    46639NAL5    CMBS   

3.811% (Mortgage),

7.375%

(Mezz A),

11.50%

(Mezz B)

   15 Facilities    6/1/2023   

$ 187,957,000

(Mortgage),

$70,000,000

(Mezz A),

$32,000,000

(Mezz B)

   CMBS    A2    46639NAM3    CMBS            
   CMBS    A3    46639NAN1    CMBS            
   CMBS    A4    46639NAP6    CMBS            
   CMBS    A5    46639NAQ4    CMBS            
   CMBS    ASB    46639NAR2    CMBS            
   CMBS    XA    46639NAS0    CMBS            
   CMBS    ASB    46639NAU5    CMBS            
   CMBS    B    46639NAV3    CMBS            
   CMBS    C    46639NAW1    CMBS            
   CMBS    D    46639NAX9    CMBS            
   CMBS    XC    46639NAA9    CMBS            
   CMBS    E    46639NAC5    CMBS            
   CMBS    F    46639NAE1    CMBS            
   CMBS    NR    46639NAG6    CMBS            
   CMBS    R    46639NAJ0    CMBS            

 

SCHEDULE 5.15

(to Note and Guaranty Agreement)


Obligor(s)    Creditor    Class    CUSIP or ISIN
(if Applicable)
  

Description

of

Indebtedness

  

Interest

Rates

   Collateral   

Final

Maturity

  

Outstanding

Principal

Amount

(12/31/2018)

Americold Realty Operating Partnership, L.P.1

  

Bank of America, N.A.

JPMorgan Chase Banks, N.A.

Cooperatieve Rabobank U.A.,

New York Branch

Royal Bank of Canada

Compass Bank, an Alabama

Banking Corporation

Citizens Banks, N.A.

Regions Bank

SunTrust Bank

U.S. Bank, N.A.

Branch Bank and Trust

Company

Goldman Sachs Lending

Partners LLC

National Bank of Arizona

   N/A    03063RAK4    Term Loan A / Revolver    L+1.45%   

Capital Stock

of the

Qualified

Asset

Guarantor(s)

  

1/23/2023

(Term Loan A),

1/23/2021

(Revolver)

  

$475,000,000

(Term Loan A),

$800,000,000

(Revolver Commitments, undrawn as of

12/312018)

Americold Realty Operating Partnership, L.P.2

   Various   

Series A

Series B

   03063AA2

03063AB0

  

Private Placement Notes

Private Placement Notes

  

4.68%

4.86%

  

Capital Stock

of the Qualified Asset Guarantor(s), (Series A & B)

  

1/8/2026

1/8/2029

  

200,000,000

400,000,000

 

1 

Guaranteed as of December 31, 2018 by the Subsidiary Guarantors.

2 

Guaranteed as of December 31, 2018 by the Subsidiary Guarantors.

 

SCH 5.15-2


Obligor(s)    Creditor    Class    CUSIP or ISIN
(if Applicable)
  

Description

of

Indebtedness

  

Interest

Rates

   Collateral   

Final

Maturity

  

Outstanding

Principal

Amount

(12/31/2018)

Various Americold Entities

   Various    N/A    N/A    Sale-leaseback Obligations    7.0% - 19.6%    12 Facilities    Various    $118,920,000

Various Americold Entities

   Various    N/A    N/A    Capitalized Lease Obligations    5.0% - 9.0%    2 Facilities, Various MHE Equipment    Various    $40,787,000

 

SCH 5.15-3


LIST OF QUALIFIED ASSETS

 

Eligible Owned Asset

  

Owner

       

Address

Ontario (OR)    Americold Realty, Inc.      

589 N.E. First Street

Ontario, OR 97914

Amarillo    ART Mortgage Borrower Propco 2006-2 L.P.      

10300 SE 3rd Avenue

Amarillo, TX 79120

Atlanta (Gateway)    AmeriCold Real Estate, L.P.      

6150 Xavier Drive SW

Atlanta, GA 30336

Atlanta (Westgate)    ART Mortgage Borrower Propco 2006-2 L.P.                           

1740 Westgate Pkwy

GA 30336

Babcock    ART Mortgage Borrower Propco 2006-2 L.P.      

1524 Necedah Road

Babcock WI 54413

Boston    ART Mortgage Borrower Propco 2006-2 L.P.      

100 Widett Circle

Boston MA 02118

Clearfield    ART Mortgage Borrower Propco 2006-2 L.P.      

755 East 1700 South Street

Clearfield, UT 84106

Clearfield 2    Americold Clearfield Propco, LLC      

755 East 1700 South Street

Clearfield, UT 84106

Connell    ART Mortgage Borrower Propco 2006-2 L.P.      

720 West Juniper Street

Connell, WA 99326

Fort Smith    ART Mortgage Borrower Propco 2006-2 L.P.      

1634 Midland Boulevard

Fort Smith, AR 72902

Leesport    AmeriCold Real Estate, L.P.      

41 Orchard Lane

Leesport, PA 19533

Middleboro    Americold Middleboro Propco, LL      

152 Bridge Street

Middleboro, MA 02346

Murfreesboro    ART Mortgage Borrower Propco 2006-2 L.P.      

2641 Stephenson Drive

Murfreesboro, TN 37127

Nampa    ART Mortgage Borrower Propco 2006-2 L.P.      

231 Second Road North

Nampa, ID 83687

Portland    AmeriCold Real Estate, L.P.      

165 Read Street

Portland, ME 04103

Russellville (Valley)        ART Mortgage Borrower Propco 2006-2 L.P.      

203 Industrial Boulevard

Russellville, AR 72801

 

SCHEDULE QA

(to Note and Guaranty Agreement)


Eligible Owned Asset

  

Owner

       

Address

Sebree    ART Mortgage Borrower Propco 2006-2 L.P.      

1541 U.S. Highway 41 North

Sebree, KY 42455

Strasburg    ART Mortgage Borrower Propco 2006-2 L.P.      

545 Radio Station Road

Strasburg, VA 22657

Syracuse (bldg 1, 2, 3)    ART Mortgage Borrower Propco 2006-2-L.P.      

264 Farrell Road

Syracuse, NY 13209

Turlock (1, 5th Street)    ART Mortgage Borrower Propco 2006-2 L.P.      

660 Fifth Street

Turlock, CA 95380

Walla Walla    ART Mortgage Borrower Propco 2006-2 L.P.      

1115 West Rose Street

Walla Walla, WA 99362

West Memphis    ART Mortgage Borrower Propco 2006-2 L.P.      

1651 South Airport Road

West Memphis, AR 72301

Wichita    ART Mortgage Borrower Propco 2006-2 L.P.      

2707 North Mead

Wichita, KS 67219

Woodburn    ART Mortgage Borrower Propco 2006-2 L.P.      

1440 Silverton Road

Woodburn, OR 97071

Phoenix 2    Americold Propco Phoenix Van Buren LLC      

7600 W Van Buren Street

Phoenix, AZ 85043

Atlanta (Tradewater)    Americold Acquisition, LLC      

6500 Tradewater Pkwy

Atlanta, GA 30336

Atlanta East Point    AmeriCold Real Estate, L.P.      

1239 Oakleigh Drive

East Point, Georgia 30344

Atlanta Skygate    ART Mortgage Borrower Propco 2006-1B L.P.      

500 John F Varly Ct

Atlanta, Georgia 30336

Atlanta Southgate    ART Mortgage Borrower Propco 2006-1B L.P.      

1845 Westgate Pkwy

Atlanta, Georgia 30336

Augusta    ART Mortgage Borrower Propco 2006-1B L.P.      

533 Laney-Walker Blvd Extension

Augusta, Georgia 30901

Carthage    ART Mortgage Borrower Propco 2006-1A L.P.      

1331 Civil War Road

Carthage, Missouri 64836

East Dubuque    ART Mortgage Borrower Propco 2006-1C L.P.      

18531 U.S. Route 20 West

East Dubugue, Illinois 61025

Fort Dodge    ART Mortgage Borrower Propco 2006-1B L.P.      

3543 Maple Drive

Fort Dodge, Iowa 50501

 

SCH QA - 2


Eligible Owned Asset

  

Owner

       

Address

Fort Worth Railhead    ART Mortgage Borrower Propco 2006-1A L.P.      

200 Railhead Dr

Fort Worth, Texas 76106

Garden City    ART Mortgage Borrower Propco 2006-1A L.P.      

2007 West Mary Street

Garden City, Kansas 67846

Hatfield    AmeriCold Real Estate, L.P.      

2525 Bergery Road

Hatfield, Pennsylvania 19440

Indianapolis    ART Mortgage Borrower Propco 2006-1B L.P.      

3320 S. Arlington Avenue

Indianapolis, Indiana 46203

Milwaukie    ART Mortgage Borrower Propco 2006-1C L.P.      

9501 S.E. McLoughlin Boulevard

Milwaukie, Oregon 97269

Pasco    ART Mortgage Borrower Propco 2006-1C L.P.      

5805 Industrial Way

Pasco, Washington 99301

Rochelle Americold Drive    AmeriCold Real Estate, L.P.      

1010 Americold Drive

Rochelle, Illinois 61068

San Antonio FM 78    Americold San Antonio Propco, LLC      

5711 FM 78

San Antonio, Texas 78218

Wallula    ART Mortgage Borrower Propco 2006-1C L.P.      

14060 Dodd Road

Wallula, Washington 99363

Albertville    ART Mortgage Borrower Propco 2010-4, LLC      

1355 Railroad Avenue,

Albertville AL 35951

Allentown    ART Mortgage Borrower Propco 2010-4, LLC      

7150 Ambassador Drive

Fogelsville, PA 18106

651 Mill Road

Fogelsville, PA 18106

Atlanta Lakewood    ART Mortgage Borrower Propco 2010-4, LLC      

3300 Lakewood Avenue

Atlanta, GA 30310

Columbia    ART Mortgage Borrower Propco 2010-4, LLC      

2339 Shop Road

Columbia, SC 29202

Ft Worth - Meacham    ART Mortgage Borrower Propco 2010-4, LLC      

350 Meacham Blvd,

Fort Worth, TX 76106

Gloucester - Rogers    ART Mortgage Borrower Propco 2010-4, LLC      

69 Rogers Street

Gloucester, MA 1931

Gloucester - Rowe Sq    ART Mortgage Borrower Propco 2010-4, LLC      

1 Rowe Square

Gloucester, MA 1931

Oklahoma City    ART Mortgage Borrower Propco 2010-4, LLC      

2524 Exchange Avenue

Oklahoma City, OK 73108    

 

SCH QA - 3


Eligible Owned Asset

  

Owner

       

Address

Ontario CA B2    ART Mortgage Borrower Propco 2010-4, LLC      

5401 Santa Ana Street

Ontario, CA 91761

Ontario CA B3    ART Mortgage Borrower Propco 2010-4, LLC      

5361 Santa Ana Street

Ontario, CA 91761

Rochelle Caron    ART Mortgage Borrower Propco 2010-4, LLC      

915 South Caron Road

Rochelle, IL 61068

Russellville ElMira    ART Mortgage Borrower Propco 2010-4, LLC      

300 South EL Mira

Russellville, AR 72802

Sioux Falls Public    ART Mortgage Borrower Propco 2010-4, LLC      

2300 East Rice Street

Sioux Falls, SD 57103

Turlock 2    ART Mortgage Borrower Propco 2010-4, LLC      

525 South Kilroy Road

Turlock, CA 95380

Victorville    ART Mortgage Borrower Propco 2010-4, LLC      

12979 Enterprise Way

San Bernardino, CA 92392

Manchester (York – Steamboat)    ART Mortgage Borrower Propco 2010-4, LLC      

60 Steamboat Boulevard

York, PA 17345

Dallas Catron—59%    ART Mortgage Borrower Propco 2010-5, LLC      

5140 Catron Drive

Dallas, TX 75227

Anaheim    ART Mortgage Borrower Propco 2010-5, LLC      

1415 North Raymond Avenue

Anaheim, CA 92801

Brea    ART Mortgage Borrower Propco 2010-5, LLC      

2750 Orbitor Street

Brea, CA 92821

Carson    ART Mortgage Borrower Propco 2010-5, LLC      

1610 East Sepulveda Boulevard

Carson, CA 90745

Dominguez Hills (Compton)    ART Mortgage Borrower Propco 2010-5, LLC      

19840 South Rancho Way

Compton, CA 90220

Ft Worth - Blue Mound    ART Mortgage Borrower Propco 2010-5, LLC      

4900 Blue Mound Road

Fort Worth, TX 76106

Ft Worth - Samuels    ART Mortgage Borrower Propco 2010-5, LLC      

1313 Samuels Avenue

Fort Worth, TX 76102

Geneva Lakes (Darien)    ART Mortgage Borrower Propco 2010-5, LLC      

W8876 County Trunk Highway X

Darien, WI 53114

Gouldsboro    ART Mortgage Borrower Propco 2010-5, LLC      

SR 435 Lackawanna Trail

Covington Township, PA 18424    

Greenville    ART Mortgage Borrower Propco 2010-5, LLC      

214 Industrial Drive

Greenville, SC 29606

 

SCH QA - 4


Eligible Owned Asset

  

Owner

       

Address

Henderson    ART Mortgage Borrower Propco 2010-5, LLC      

830 East Horizon Drive

Henderson, NV 89015

Jefferson    ART Mortgage Borrower Propco 2010-5, LLC      

230 Collins Road

Jefferson, WI 53549

Lancaster    ART Mortgage Borrower Propco 2010-5, LLC      

3800 Hempland Road

Mountville, PA 17554

LaPorte    ART Mortgage Borrower Propco 2010-5, LLC      

502 North Broadway Street

LaPorte, TX 77571

Lynden    ART Mortgage Borrower Propco 2010-5, LLC      

406 2nd Street

Lynden, WA 98264

Modesto PRW    ART Mortgage Borrower Propco 2010-5, LLC      

2050 Lapham Drive

Modesto, CA 95354

Salinas    ART Mortgage Borrower Propco 2010-5, LLC      

950 South Sanborn Road

Salinas, CA 93902

Sikeston    ART Mortgage Borrower Propco 2010-5, LLC      

2500 Rose Parkway

Sikeston, MO 63801

St. Louis    ART Mortgage Borrower Propco 2010-5, LLC      

8501 Page Avenue

Vinita Park, MO 63114

Tampa PC - Frontage    ART Mortgage Borrower Propco 2010-5, LLC      

302 North Frontage Road

Plant City, FL 33563

Taunton    ART Mortgage Borrower Propco 2010-5, LLC      

455 John Hancock Road

Taunton, MA 2780

Vernon 2    ART Mortgage Borrower Propco 2010-5, LLC      

3420 East Vernon Avenue

Vernon, CA 90058

York - Willow Springs    ART Mortgage Borrower Propco 2010-5, LLC      

380 Willow Springs Lane

Manchester, PA 17406

Appleton    ART Mortgage Borrower Propco 2010-5, LLC      

2000 W. Pershing Street

Appleton, WI 54914

Houston    ART Mortgage Borrower Propco 2010-6, LLC      

16110 East Hardy Road

Houston, TX 77032

San Antonio    ART Mortgage Borrower Propco 2010-6, LLC      

11850 Center Road

San Antonio, TX 78223

 

SCH QA - 5


Eligible Ground Leased Asset

  

Lessor

       

Address

Burley    AmeriCold Real Estate, L.P.      

280 West Highway 30

Burley, ID 83318

Tacoma    VCD Pledge Holdings, LLC      

1301 26th Avenue East

Tacoma, WA 98424

Tampa (Bartow)    ART Mortgage Borrower, L.P.      

Highway 17

Bartow, FL 33831

Grand Island    AmeriCold Real Estate, L.P.      

204 East Roberts Street

Grand Island, NE 68802

Massillon    ART Mortgage Borrower Propco 2010-4, LLC      

2140 17th Street SW

Massillon, OH 44647

Watsonville    ART Mortgage Borrower Propco 2010-4, LLC      

750 West Riverside Drive

Santa Cruz, CA 95077

Mobile    ART Mortgage Borrower Propco 2010-5, LLC      

2201 Perimeter Road

Mobile, AL 36615

 

SCH QA - 6


INFORMATION RELATING TO PURCHASERS

 

NAME AND ADDRESS OF PURCHASER   

SERIES OF NOTES TO

BE PURCHASED

    

PRINCIPAL AMOUNT

OF

NOTES TO BE

PURCHASED

 

TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA

     Series C      $ 30,000,000  

730 Third Avenue

     

New York, New York 10017

     

 

(1)

All payments on or in respect of the Guaranteed Senior Notes shall be made in immediately available funds on the due date by electronic funds transfer, through the Automated Clearing House System, to:

Wire instructions redacted and provided to Issuer under separate cover.

 

(2)

Address for all notices with respect to payments and prepayments of the Guaranteed Senior Notes:

Teachers Insurance and Annuity Association of America

730 Third Avenue

New York, New York 10017

Attention: Securities Accounting Division

Phone: (212) 916-5504

Facsimile: (212) 916-4699

With a copy to:

JPMorgan Chase Bank, N.A.

P.O. Box 35308

Newark, New Jersey 07101

Contemporaneous written confirmation of any electronic funds transfer shall be sent to the above addresses setting forth (1) the full name, private placement number, interest rate and maturity date of the Notes (2) allocation of payment between principal, interest, Make-Whole Amount, other premium or any special payment and (3) the name and address of the bank from which such electronic funds transfer was sent.

 

(3)

Address for all notices and communications, including notices with respect to payments and prepayments:

 

PURCHASER SCHEDULE

(to Note and Guaranty Agreement)


Teachers Insurance and Annuity Association of America

c/o Nuveen Alternatives Advisors LLC

8500 Andrew Carnegie Blvd.

Charlotte, NC 28262

Attention: Global Private Markets

Telephone: (704) 988-4349 (Name: Ho Young Lee)

(212) 916-4000 (General Number)

Facsimile:   (704) 988-4916

Email:         hoyoung.lee@tiaainvestments.com

 

(4)

Address for physical delivery of the Note:

Delivery instructions redacted and provided to Issuer under separate cover.

 

(5)

Nominee: None

 

(6)

U.S. Tax Identification Number: Redacted and provided to Issuer under separate cover.

 

Purchaser Schedule - 2


NAME AND ADDRESS OF PURCHASER   

SERIES OF NOTES TO

BE PURCHASED

    

PRINCIPAL AMOUNT
OF

NOTES TO BE
PURCHASED

 

ATHENE ANNUITY AND LIFE COMPANY

     Series C      $ 10,000,000  

7700 Mills Civic Parkway

     

West Des Moines, IA 50266

     

 

(1)

Payments on account of the Note shall be made by federal funds wire transfer of immediately available funds to:

Wire instructions redacted and provided to Issuer under separate cover.

 

(2)

Address for all notices, including financials, compliance and requests:

Preferred Remittance: privateplacements@athenelp.com

Athene Annuity and Life Company

c/o Athene Asset Management LLC

Attn: Private Fixed Income

7700 Mills Civic Parkway

West Des Moines, IA 50266

 

(3)

Address for physical delivery of the Note:

Delivery instructions redacted and provided to Issuer under separate cover.

 

(4)

Nominee: Gerlach & Co. F/B/O Athene Annuity and Life Company

 

(5)

U.S. Tax Identification Number: Redacted and provided to Issuer under separate cover.

 

Purchaser Schedule - 3


NAME AND ADDRESS OF PURCHASER   

SERIES OF NOTES TO

BE PURCHASED

    

PRINCIPAL AMOUNT
OF

NOTES TO BE
PURCHASED

 

ATHENE ANNUITY & LIFE ASSURANCE COMPANY

     Series C      $ 5,000,000  

7700 Mills Civic Parkway

     

West Des Moines, IA 50266

     

 

(1)

Payments on account of the Note shall be made by federal funds wire transfer of immediately available funds to:

Wire instructions redacted and provided to Issuer under separate cover.

 

(2)

Address for all notices, including financials, compliance and requests:

Preferred Remittance: privateplacements@athenelp.com

Athene Annuity & Life Assurance Company

c/o Athene Asset Management LLC

Attn: Private Fixed Income

7700 Mills Civic Parkway

West Des Moines, IA 50266

 

(3)

Address for physical delivery of the Note:

Delivery instructions redacted and provided to Issuer under separate cover.

 

(4)

Nominee: None

 

(5)

U.S. Tax Identification Number: Redacted and provided to Issuer under separate cover.

 

Purchaser Schedule - 4


NAME AND ADDRESS OF PURCHASER   

SERIES OF NOTES TO

BE PURCHASED

    

PRINCIPAL AMOUNT
OF

NOTES TO BE
PURCHASED

 

ATHENE ANNUITY & LIFE ASSURANCE COMPANY OF NEW YORK

     Series C      $ 5,000,000  

7700 Mills Civic Parkway

     

West Des Moines, IA 50266

     

 

(1)

Payments on account of the Note shall be made by federal funds wire transfer of immediately available funds to:

Wire instructions redacted and provided to Issuer under separate cover.

 

(2)

Address for all notices, including financials, compliance and requests:

Preferred Remittance: privateplacements@athenelp.com

Athene Annuity & Life Assurance Company of New York

c/o Athene Asset Management LLC

Attn: Private Fixed Income

7700 Mills Civic Parkway

West Des Moines, IA 50266

 

(3)

Address for physical delivery of the Note:

Delivery instructions redacted and provided to Issuer under separate cover.

 

(4)

Nominee: Gerlach & Co. F/B/O Athene Annuity & Life Assurance Company of New York

 

(5)

U.S. Tax Identification Number: Redacted and provided to Issuer under separate cover.

 

Purchaser Schedule - 5


NAME AND ADDRESS OF PURCHASER   

SERIES OF NOTES TO

BE PURCHASED

    

PRINCIPAL AMOUNT
OF

NOTES TO BE
PURCHASED

 

THE LINCOLN NATIONAL LIFE INSURANCE COMPANY

     Series C      $ 5,000,000  

7700 Mills Civic Parkway

     

West Des Moines, IA 50266

     

 

(1)

Payments on account of the Note shall be made by federal funds wire transfer of immediately available funds to:

Wire instructions redacted and provided to Issuer under separate cover.

 

(2)

Address for all notices, including financials, compliance and requests:

Preferred Remittance: privateplacements@athenelp.com

The Lincoln National Life Insurance Company

c/o Athene Asset Management LLC

Attn: Private Fixed Income

7700 Mills Civic Parkway

West Des Moines, IA 50266

 

(3)

Address for physical delivery of the Note:

Delivery instructions redacted and provided to Issuer under separate cover

 

(4)

Nominee: None

 

(5)

U.S. Tax Identification Number: Redacted and provided to Issuer under separate cover.

 

Purchaser Schedule - 6


NAME AND ADDRESS OF PURCHASER   

SERIES OF NOTES TO

BE PURCHASED

    

PRINCIPAL AMOUNT
OF

NOTES TO BE
PURCHASED

 

ATHENE ANNUITY AND LIFE COMPANY

     Series C      $ 2,000,000  

7700 Mills Civic Parkway

     

West Des Moines, IA 50266

     

 

(1)

Payments on account of the Note shall be made by federal funds wire transfer of immediately available funds to:

Wire instructions redacted and provided to Issuer under separate cover.

 

(2)

Address for all notices, including financials, compliance and requests:

Preferred Remittance: privateplacements@athenelp.com

Athene Annuity and Life Company

c/o Athene Asset Management LLC

Attn: Private Fixed Income

7700 Mills Civic Parkway

West Des Moines, IA 50266

 

(3)

Address for physical delivery of the Note:

Delivery instructions redacted and provided to Issuer under separate cover.

 

(4)

Nominee: Gerlach & Co. F/B/O Athene Annuity and Life Company

 

(5)

U.S. Tax Identification Number: Redacted and provided to Issuer under separate cover.

 

Purchaser Schedule - 7


NAME AND ADDRESS OF PURCHASER   

SERIES OF NOTES
TO

BE PURCHASED

    

PRINCIPAL AMOUNT
OF

NOTES TO BE
PURCHASED

 

ALLIANZ LIFE INSURANCE COMPANY OF NORTH AMERICA

     Series C      $ 27,000,000  

55 Greens Farms Road

     

Westport, CT 06880

     

 

(1)

Payments on account of the Note shall be made by federal funds wire transfer of immediately available funds to:

Wire instructions redacted and provided to Issuer under separate cover

 

(2)

Address for all notices:

Allianz Life Insurance Company of North America

c/o Allianz Global Investors U.S. LLC

Attn: Private Placements

55 Greens Farms Road

Westport, CT 06880

Phone: 203-293-1900

Email: ppt@allianzgi.com

 

(3)

Address for physical delivery of the Note:

Delivery instructions redacted and provided to Issuer under separate cover.

 

(4)

Nominee: MAC & CO., LLC

 

(5)

U.S. Tax Identification Number: Redacted and provided to Issuer under separate cover.

 

Purchaser Schedule - 8


NAME AND ADDRESS OF PURCHASER   

SERIES OF NOTES TO

BE PURCHASED

    

PRINCIPAL AMOUNT
OF

NOTES TO BE
PURCHASED

 

HARTFORD LIFE AND ACCIDENT INSURANCE COMPANY

     Series C      $ 5,000,000  

One Hartford Plaza - NP5-B

     

Hartford, Connecticut 06155

     

 

(1)

All payments shall be made by wire transfer of immediately available funds to:

Wire instructions redacted and provided to Issuer under separate cover

 

(2)

Address for all notices of payments and written confirmations of such wire transfers:

Hartford Investment Management Company

c/o Investment Operations

One Hartford Plaza - NP5

Hartford, Connecticut 06155

Facsimile: (860) 297-8875/8876

 

(3)

Address for all other communications:

Hartford Investment Management Company

c/o Investment Department-Private Placements

E-mail Address:        dawn.crunden@himco.com and

                       PrivatePlacements.Himco@Himco.com

subject to confirming copy of notice being sent same day by recognized international commercial delivery service (charges prepaid) to the following addresses mailing address:

One Hartford Plaza, NP5-B

Hartford, Connecticut 06155

Facsimile: (860) 297-8884

 

(4)

Address for physical delivery of the Note:

Delivery instructions redacted and provided to Issuer under separate cover.

 

(5)

Nominee: None

 

(6)

U.S. Tax Identification Number: Redacted and provided to Issuer under separate cover.

 

Purchaser Schedule - 9


NAME AND ADDRESS OF PURCHASER   

SERIES OF NOTES TO

BE PURCHASED

    

PRINCIPAL AMOUNT
OF

NOTES TO BE
PURCHASED

 

HARTFORD FIRE INSURANCE COMPANY

     Series C      $ 5,000,000  

One Hartford Plaza - NP5-B

      $ 5,000,000  

Hartford, Connecticut 06155

      $ 4,000,000  

 

(1)

All payments shall be made by wire transfer of immediately available funds to:

Wire instructions redacted and provided to Issuer under separate cover

 

()

Address for all notices of payments and written confirmations of such wire transfers:

Hartford Investment Management Company

c/o Investment Operations

One Hartford Plaza - NP5

Hartford, Connecticut 06155

Facsimile: (860) 297-8875/8876

 

(3)

Address for all other communications:

Hartford Investment Management Company

c/o Investment Department-Private Placements

E-mail Address:        dawn.crunden@himco.com and

                       PrivatePlacements.Himco@Himco.com

subject to confirming copy of notice being sent same day by recognized international commercial delivery service (charges prepaid) to the following addresses mailing address:

One Hartford Plaza, NP5-B

Hartford, Connecticut 06155

Facsimile: (860) 297-8884

 

(4)

Address for physical delivery of the Note:

Delivery instructions redacted and provided to Issuer under separate cover.

 

(5)

Nominee: None

 

(6)

U.S. Tax Identification Number: Redacted and provided to Issuer under separate cover.

 

Purchaser Schedule - 10


NAME AND ADDRESS OF PURCHASER   

SERIES OF NOTES TO

BE PURCHASED

    

PRINCIPAL AMOUNT
OF

NOTES TO BE
PURCHASED

 

TALCOTT RESOLUTION LIFE INSURANCE COMPANY

     Series C      $ 5,000,000  

One Hartford Plaza - NP5-B

      $ 3,000,000  

Hartford, Connecticut 06155

 

 

(1)

All payments shall be made by wire transfer of immediately available funds to:

Wire instructions redacted and provided to Issuer under separate cover

 

(2)

Address for all notices of payments and written confirmations of such wire transfers:

Hartford Investment Management Company

c/o Investment Operations

One Hartford Plaza - NP5

Hartford, Connecticut 06155

Facsimile: (860) 297-8875/8876

 

(3)

Address for all other communications:

Hartford Investment Management Company

c/o Investment Department-Private Placements

E-mail Address:        dawn.crunden@himco.com and

                       PrivatePlacements.Himco@Himco.com

subject to confirming copy of notice being sent same day by recognized international commercial delivery service (charges prepaid) to the following addresses mailing address:

One Hartford Plaza, NP5-B

Hartford, Connecticut 06155

Facsimile: (860) 297-8884

 

(4)

Address for physical delivery of the Note:

Delivery instructions redacted and provided to Issuer under separate cover.

 

(5)

Nominee: None

 

(6)

U.S. Tax Identification Number: Redacted and provided to Issuer under separate cover.

 

Purchaser Schedule - 11


NAME AND ADDRESS OF PURCHASER   

SERIES OF NOTES TO

BE PURCHASED

  

PRINCIPAL AMOUNT
OF

NOTES TO BE
PURCHASED

 

NATIONWIDE LIFE AND ANNUITY INSURANCE COMPANY

   Series C    $ 17,000,000  

One Nationwide Plaza (1-05-801)

 

Columbus, OH 43215-2220

 

(1) All payments shall be made by wire transfer of immediately available funds to:

Wire instructions redacted and provided to Issuer under separate cover.

 

(2)

Address for all notices of payment on or in respect to the Note:

Nationwide Life and Annuity Insurance Company

c/o The Bank of New York

Attn: P & I Department

P.O. Box 392003

Pittsburgh, PA 1525

With a copy to:

Nationwide Life and Annuity Insurance Company

Attn: Nationwide Investments - Investment Operations

One Nationwide Plaza (1-05-401)

Columbus, OH 43215-2220

 

(3)

Address for all other communications:

Nationwide Life and Annuity Insurance Company

Attn: Nationwide Investments – Private Placements

E-mail: ooinwpp@nationwide.com

One Nationwide Plaza (1-05-801)

Columbus, OH 43215-2220

 

(4)

Address for physical delivery of the Note:

Delivery instructions redacted and provided to Issuer under separate cover.

 

(5)

Nominee: None

 

(6)

U.S. Tax Identification Number: Redacted and provided to Issuer under separate cover.

 

Purchaser Schedule - 12


NAME AND ADDRESS OF PURCHASER    SERIES OF NOTES TO
BE PURCHASED
    

PRINCIPAL AMOUNT
OF

NOTES TO BE
PURCHASED

 

NATIONWIDE LIFE INSURANCE COMPANY

     Series C      $ 10,000,000  

One Nationwide Plaza (1-05-801)

     

Columbus, OH 43215-2220

     

 

(1)

All payments shall be made by wire transfer of immediately available funds to:

Wire instructions redacted and provided to Issuer under separate cover.

 

(2)

Address for all notices of payment on or in respect to the Note:

Nationwide Life Insurance Company

c/o The Bank of New York

Attn: P & I Department

P.O. Box 392003

Pittsburgh, PA 1525

With a copy to:

Nationwide Life Insurance Company

Attn: Nationwide Investments - Investment Operations

One Nationwide Plaza (1-05-401)

Columbus, OH 43215-2220

 

(3)

Address for all other communications:

Nationwide Insurance Company

Attn: Nationwide Investments – Private Placements

E-mail: ooinwpp@nationwide.com

One Nationwide Plaza (1-05-801)

Columbus, OH 43215-2220

 

(4)

Address for physical delivery of the Note:

Delivery instructions redacted and provided to Issuer under separate cover.

 

(5)

Nominee: None

 

(6)

U.S. Tax Identification Number: Redacted and provided to Issuer under separate cover.

 

Purchaser Schedule - 13


NAME AND ADDRESS OF

PURCHASER

  

SERIES OF NOTES TO

BE PURCHASED

    

PRINCIPAL AMOUNT

OF NOTES TO BE

PURCHASED

 

PRU US PP CREDIT BM FUND

     Series C      $ 4,500,000  

1075 Peachtree Street, Suite 3600

     

Atlanta, GA 30309

     

 

(1)

All payments on account of Notes held by such purchaser shall be made by wire transfer of immediately available funds for credit to:

Wire instructions redacted and provided to Issuer under separate cover.

 

(2)

Address for all communications and notices:

Prudential Private Placement Investors, L.P.

c/o Prudential Capital Group

1075 Peachtree Street

Suite 3600

Atlanta, GA 30309

Attention: Managing Director

cc: Vice President and Corporate Counsel

And for all notices relating solely to scheduled principal and interest payments:

Mitsubishi UFJ Trust and Banking Corporation

New York Branch

1221 Avenue of the Americas, 10th Floor

New York, NY 10020

Attn: Custody Group/Income Collection

Income team: income-dl@ny.tr.mufg.jp

Client Service team: clientservices-dl@ny.tr.mufg.jp

 

(3)

Address for physical delivery of the Note:

Delivery instructions redacted and provided to Issuer under separate cover.

 

(4)

Nominee: None

 

(5)

US Tax Identification Number: N/A

 

Purchaser Schedule - 14


NAME AND ADDRESS OF

PURCHASER

  

SERIES OF NOTES TO BE

PURCHASED

    

PRINCIPAL AMOUNT OF

NOTES TO BE
PURCHASED

 
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA      Series C      $ 5,050,000  

1075 Peachtree Street, Suite 3600

      $ 17,450,000  

Atlanta, GA 30309

     

 

(1)

All payments on account of Notes held by such purchaser shall be made by wire transfer of immediately available funds for credit to:

Wire instructions redacted and provided to Issuer under separate cover.

 

(2)

Address for all communications and notices:

The Prudential Insurance Company of America

c/o Prudential Capital Group

1075 Peachtree Street

Suite 3600

Atlanta, GA 30309

Attention: Managing Director

cc: Vice President and Corporate Counsel

and for all notices relating solely to scheduled principal and interest payments:

The Prudential Insurance Company of America

c/o PGIM, Inc.

Prudential Tower

655 Broad Street

14th Floor - South Tower

Newark, NJ 07102

Attention: PIM Private Accounting Processing Team

Email: Pim.Private.Accounting.Processing.Team@prudential.com

 

(3)

Address for physical delivery of the Note:

Wire instructions redacted and provided to Issuer under separate cover.

 

(4)

Nominee: None

 

(5)

U.S. Tax Identification Number: Redacted and provided to Issuer under separate cover.

 

Purchaser Schedule - 15


NAME AND ADDRESS OF

PURCHASER

  

SERIES OF NOTES TO

BE PURCHASED

    

PRINCIPAL AMOUNT OF

NOTES TO BE
PURCHASED

 
TRANSAMERICA PREMIER LIFE INSURANCE COMPANY      Series C      $ 10,000,000  

6300 C Street SW

     

Cedar Rapids, IA 52499

     

 

(1)

All payments on account of the Transamerica Premier Life Insurance Company shall be made by wire transfer to:

Wire instructions redacted and provided to Issuer under separate cover.

 

(2)

All notices/confirmation of payment information should include CUSIP/PPN: 03063# AC8 in the subject line and be sent to:

AEGON USA Investment Management, LLC

Attn: AAM GA Portfolio Accounting MS 3G-CR

6300 C Street SW

Cedar Rapids, IA 52499

Email: shaamgaportfolioacc@aegonusa.com

And

AEGON USA Investment Management, LLC

Attn: Private Placements MS 3C-CR

6300 C Street SW

Cedar Rapids, IA 52499

Email: privateplacements@aegonusa.com

 

(3)

Routine correspondence, legal closing documents and reporting should be sent to:

AEGON USA Investment Management, LLC

Attn: Director of Private Placements MS 3C-CR

6300 C Street SW

Cedar Rapids, IA 52499

Telephone: (319) 355-2429

Email: privateplacements@aegonusa.com

 

(4)

Address for physical delivery of the Note:

Delivery instructions redacted and provided to Issuer under separate cover.

 

(5)

Nominee: None

 

(6)

U.S. Tax Identification Number: Redacted and provided to Issuer under separate cover

 

Purchaser Schedule - 16


NAME AND ADDRESS OF

PURCHASER

   SERIES OF NOTES TO BE
PURCHASED
    

PRINCIPAL AMOUNT OF

NOTES TO BE
PURCHASED

 

TRANSAMERICA LIFE INSURANCE COMPANY

     Series C      $ 10,000,000  

6300 C Street SW

     

Cedar Rapids, IA 52499

     

 

(1)

All payments on account of the Transamerica Life Insurance Company shall be made by wire transfer to:

Wire instructions redacted and provided to Issuer under separate cover.

 

(2)

All notices/confirmation of payment information should include CUSIP/PPN: 03063# AC8 in the subject line and be sent to:

AEGON USA Investment Management, LLC

Attn: AAM GA Portfolio Accounting MS 3G-CR

6300 C Street SW

Cedar Rapids, IA 52499

Email: shaamgaportfolioacc@aegonusa.com

and

AEGON USA Investment Management, LLC

Attn: Private Placements MS 3C-CR

6300 C Street SW

Cedar Rapids, IA 52499

Email: privateplacements@aegonusa.com

 

(3)

Routine correspondence, legal closing documents and reporting should be sent to:

AEGON USA Investment Management, LLC    

Attn: Director of Private Placements MS 3C-CR

6300 C Street SW

Cedar Rapids, IA 52499

Telephone: (319) 355-2429

Email: privateplacements@aegonusa.com    

 

(4)

Address for physical delivery of the Note:

Delivery instructions redacted and provided to Issuer under separate cover.

 

(5)

Nominee: None

 

(6)

U.S. Tax Identification Number: Redacted and provided to Issuer under separate cover.

 

Purchaser Schedule - 17


NAME AND ADDRESS OF

PURCHASER

   SERIES OF NOTES TO BE
PURCHASED
    

PRINCIPAL AMOUNT OF

NOTES TO BE
PURCHASED

 

AMERICAN EQUITY INVESTMENT LIFE INSURANCE COMPANY

     Series C      $ 20,000,000  

6000 Westown Parkway

     

West Des Moines, IA 50266

     

 

(1)

All scheduled payments of principal and interest shall be made by wire transfer of immediately available funds:

Wire instructions redacted and provided to Issuer under separate cover.

 

(2)

Address for all notices and communications regarding payment transactions (Payment):

Email: AssetAdmin.PrivatePlacements@American-Equity.com

Attention: Mark Kooienga    Phone (515) 273-3576

 

(3)

Address for all notices and communications (Legal):

American Equity Investment Life Insurance Company

Investment-Private Placements

6000 Westown Parkway

West Des Moines, IA 50266

Attention: Legal Monitoring

Email: Legal.PrivatePlacements@American-Equity.com

 

(4)

Address for all notices and communications (other than Payment and Legal):

American Equity Investment Life Insurance Company

Investment-Private Placements

6000 Westown Parkway

West Des Moines, IA 50266

Attention: Compliance Monitoring

Email: Compliance.PrivatePlacements@American-Equity.com

 

(5)

Address for Audit Requests:

Soft copy:

AuditConfirms.PrivatePlacements@American-Equity.com

Hard copy:

 

Purchaser Schedule - 18


American Equity Investment Life Insurance Company

Investment-Private Placements

6000 Westown Parkway

West Des Moines, IA 50266

Attention: AuditConfirms

 

(6)

Address for physical delivery of the Note:

Delivery instructions redacted and provided to Issuer under separate cover.

 

(7)

Nomine: Chimefish & Co

 

(8)

U.S. Tax Identification Number: Redacted and provided to Issuer under separate cover.

 

Purchaser Schedule - 19


NAME AND ADDRESS OF

PURCHASER

   SERIES OF NOTES TO BE
PURCHASED
    

PRINCIPAL AMOUNT OF

NOTES TO BE
PURCHASED

 

MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY

     Series C      $ 17,800,000  

c/o Barings LLC

     

300 South Tryon Street – Suite 2500

     

Charlotte, NC 28202

     

 

(1)

All payments on account of the Note shall be made by crediting in the form of bank wire transfer of Federal or other immediately available funds (identifying each payment as Americold Realty Operating Partnership, L.P., 4.10% Series C Guaranteed Senior Notes due January 8, 2030, interest, principal or premium), to:

Wire instructions redacted and provided to Issuer under separate cover.

 

(2)

Address for notices on payments:

Massachusetts Mutual Life Insurance Company

Treasury Operations Securities Management

1295 State Street

Springfield, MA 01111

Attn: Janelle Tarantino

With a copy to:

Massachusetts Mutual Life Insurance Company

c/o Barings LLC

300 South Tryon Street – Suite 2500

Charlotte, NC 28202

 

(3)

Address for all communications and notices (including electronic delivery of financials):

Massachusetts Mutual Life Insurance Company

c/o Barings LLC

300 South Tryon Street – Suite 2500

Charlotte, NC 28202

With notification to:

privateplacements@barings.com

pdgportfolioadmin@barings.com

John.Wheeler@barings.com

 

Purchaser Schedule - 20


(4)

Address for physical delivery of the Note:

Delivery instructions redacted and provided to Issuer under separate cover.

 

(5)

Nominee: None

 

(6)

U.S. Tax Identification Number: Redacted and provided to Issuer under separate cover.

 

Purchaser Schedule - 21


NAME AND ADDRESS OF

PURCHASER

   SERIES OF NOTES TO BE
PURCHASED
    

PRINCIPAL AMOUNT OF

NOTES TO BE
PURCHASED

 

YF LIFE INSURANCE INTERNATIONAL LIMITED

     Series C      $ 1,200,000  

c/o Barings LLC

     

300 South Tryon Street – Suite 2500

     

Charlotte, NC 28202

     

 

(1)

All payments on account of the Note shall be made by crediting in the form of bank wire transfer of Federal or other immediately available funds (identifying each payment as Americold Realty Operating Partnership, L.P., 4.10% Series C Guaranteed Senior Notes due January 8, 2030, interest, principal or premium), to:

Wire instructions redacted and provided to Issuer under separate cover.

 

(2)

Address for notices on payments:

YF Life Insurance International Limited

Treasury Operations Securities Management

1295 State Street

Springfield, MA 01111

Attn: Janelle Tarantino

With a copy to:

YF Life Insurance International Limited

c/o Barings LLC

300 South Tryon Street – Suite 2500

Charlotte, NC 28202

 

(3)

Address for notices of corporate action:

Citigroup Global Securities Services

Attn: Corporate Action Dept.

3800 Citibank Center Tampa

Building B Floor 3

Tampa, FL 33610-9122

 

(4)

Address for all communications and notices (including electronic delivery of financials):

MassMutual Asia Limited

c/o Barings LLC

300 South Tryon Street – Suite 2500

Charlotte, NC 28202

 

Purchaser Schedule - 22


With notification to:

privateplacements@barings.com

pdgportfolioadmin@barings.com

John.Wheeler@barings.com

 

(5)

Address for physical delivery of the Note:

Delivery instructions redacted and provided to Issuer under separate cover.

 

(6)

Nominee: Gerlach & Co.

 

(7)

U.S. Tax Identification Number: Redacted and provided to Issuer under separate cover.

 

Purchaser Schedule - 23


NAME AND ADDRESS OF

PURCHASER

   SERIES OF NOTES TO BE
PURCHASED
    

PRINCIPAL AMOUNT OF

NOTES TO BE
PURCHASED

 

BANNER LIFE INSURANCE COMPANY

     Series C      $ 1,000,000  

c/o Barings LLC

     

300 South Tryon Street – Suite 2500

     

Charlotte, NC 28202

     

 

(1)

All payments on account of the Note shall be made by crediting in the form of bank wire transfer of Federal or other immediately available funds (identifying each payment as Americold Realty Operating Partnership, L.P., 4.10% Series C Guaranteed Senior Notes due January 8, 2030, interest and principal), to:

Wire instructions redacted and provided to Issuer under separate cover.

 

(2)

Address for communications and notices, including notices on payments:

Banner Life Insurance Company

c/o Barings LLC

300 South Tryon Street – Suite 2500

Charlotte, NC 28202

With notification to:

privateplacements@barings.com

pdgportfolioadmin@barings.com

John.Wheeler@barings.com

 

(3)

Address for electronic delivery of financials and other information:

Banner Life Insurance Company

c/o Barings LLC

300 South Tryon Street – Suite 2500

Charlotte, NC 28202

privateplacements@barings.com

pdgportfolioadmin@barings.com

John.Wheeler@barings.com

 

(4)

Address for physical delivery of the Note:

Delivery instructions redacted and provided to Issuer under separate cover.

 

(5)

Nominee: Hare & Co., LLC

 

(6)

U.S. Tax Identification Number: Redacted and provided to Issuer under separate cover.

 

Purchaser Schedule - 24


NAME AND ADDRESS OF

PURCHASER

   SERIES OF NOTES TO BE
PURCHASED
    

PRINCIPAL AMOUNT OF

NOTES TO BE
PURCHASED

 

USAA MASTER TRUST (PENSION AND RSP)

     Series C      $ 3,000,000  

9800 Fredericksburg Road

     

San Antonio, TX 78288

     

 

(1)

All payments on account of the Note shall be made by wire transfer of immediately available funds to:

Wire instructions redacted and provided to Issuer under separate cover.

 

(2)

Address for notices regarding payments to Purchaser and written confirmations of such wire transfers:

Northern Trust

801 South Canal Street

Chicago, Illinois 60607 USA

Attn: INC/DIV

with a copy to:

Andrew McEvoy

Macquarie Investment Management

2005 Market Street

Philadelphia, PA 19103

E-mail:    Andrew.mcevoy@macquarie.com

 

(3)

E-mail addresses for electronic deliveries of financials, financial covenant compliance and other reports required under the Note Purchase and Guaranty Agreement to Purchaser:

Alex Alston:                        Alex.Alston@macquarie.com

Frank LaTorraca:                 Frank.LaTorraca@macquarie.com

Analyst on Transaction:       Philip.Lee@macquarie.com

 

(4)

Address for all other communications:

Macquarie Investment Management

2005 Market Street

Philadelphia, PA 19103

Attn: Debt Private Placements Group

 

Purchaser Schedule - 25


E-mail:                 Alex.Alston@macquarie.com;

Frank.LaTorraca@macquarie.com;

Nicole.Tullo@macquarie.com;

Philip.Lee@macquarie.com;

Jamie.Chiarieri@macquarie.com;

Brendan.Dillon@macquarie.com;

Karl.Spaeth@macquarie.com;

Lindwood.Wilmer@macquarie.com;

Michael.Dresnin@macquarie.com

 

(5)

Address for physical delivery of the Notes:

Delivery instructions redacted and provided to Issuer under separate cover.

 

(6)

Nominee: Ell & Co.

 

(7)

U.S. Tax Identification Number: Redacted and provided to Issuer under separate cover.

 

Purchaser Schedule - 26


NAME AND ADDRESS OF

PURCHASER

   SERIES OF NOTES TO BE
PURCHASED
    

PRINCIPAL AMOUNT OF

NOTES TO BE
PURCHASED

 

THE LINCOLN NATIONAL LIFE INSURANCE COMPANY

     Series C      $ 11,000,000  

2005 Market Street

     

Mail Stop 41-104

     

Philadelphia, PA 19103

     

 

(1)

All payments on account of the Note shall be made by wire transfer of immediately available funds to:

Wire instructions redacted and provided to Issuer under separate cover.

 

(2)

Address for notice of payments only (Bank Address):

Notice instructions redacted and provided to Issuer under separate cover

 

(3)

Address for notice of payment (Treasury Operations):

Lincoln Financial Group

1300 South Clinton St.

Fort Wayne, IN 46802

Attn: Inv Acctg–Treasury Operations

Email: securities_data_rese@lfg.com

 

(4)

Address for all communications (Investment Advisor):

Macquarie Investment Management Advisers

2005 Market Street, Mail Stop 41-104

Philadelphia, PA 19103

Attn: Fixed Income Private Placements

Email: privateplacements@macquarie.com

 

(5)

Address for physical delivery of the Note:

Delivery instructions redacted and provided to Issuer under separate cover.

 

(6)

Nominee: None

 

(7)

U.S. Tax Identification Number: Redacted and provided to Issuer under separate cover.

 

Purchaser Schedule - 27


NAME AND ADDRESS OF

PURCHASER

   SERIES OF NOTES TO BE
PURCHASED
    

PRINCIPAL AMOUNT OF

NOTES TO BE
PURCHASED

 

THE LINCOLN NATIONAL LIFE INSURANCE COMPANY

     Series C      $ 4,000,000  

2005 Market Street, Mail Stop 41-104

     

Philadelphia, PA 19103

     

 

(1)

All payments on account of the Note shall be made by wire transfer of immediately available funds to:

Wire instructions redacted and provided to Issuer under separate cover.

 

(2)

Address for notice of payments only (Bank Address):

Notice instructions redacted and provided to Issuer under separate cover

 

(3)

Address for notice of payment (Treasury Operations):

Lincoln Financial Group

1300 South Clinton St.

Fort Wayne, IN 46802

Attn: Inv Acctg–Treasury Operations

Email: securities_data_rese@lfg.com

 

(4)

Address for all communications (Investment Advisor):

Macquarie Investment Management Advisers

2005 Market Street, Mail Stop 41-104

Philadelphia, PA 19103

Attn: Fixed Income Private Placements

Email: privateplacements@macquarie.com

 

(5)

Address for physical delivery of the Note:

Delivery instructions redacted and provided to Issuer under separate cover.

 

(6)

Nominee: None

 

(7)

U.S. Tax Identification Number: Redacted and provided to Issuer under separate cover.

 

Purchaser Schedule - 28


NAME AND ADDRESS OF

PURCHASER

   SERIES OF NOTES TO
BE PURCHASED
  

PRINCIPAL AMOUNT OF

NOTES TO BE
PURCHASED

 

ENSIGN PEAK ADVISORS, INC.

   Series C    $ 5,000,000  

50 East North Temple Street

   Series C    $ 5,000,000  

Salt Lake City, Utah 84150

   Series C    $ 5,000,000  

 

(1)

All payments on account of the Notes held by such purchaser shall be made by wire transfer of immediately available funds for credit to:

Wire instructions redacted and provided to Issuer under separate cover.

 

(2)

All notices with respect to payments and written confirmation of each such payment to be addressed:

Ensign Peak Advisors, Inc.

50 East North Temple Street, Room 1514

Salt Lake City, Utah 84150

Attention: Custody

Email: custody@ensignpeak.org

            privateplacements@ensignpeak.org

Phone: 801-240-1066

 

(3)

All other notices and communications addressed to:

Ensign Peak Advisors, Inc.

50 East North Temple Street

Salt Lake City, Utah 84150

Attention: Matthew D. Dall

privateplacements@ensignpeak.org

mark.r.peterson@ensignpeak.org

 

(4)

Address for physical delivery of Note:

Delivery instructions redacted and provided to Issuer under separate cover.

 

(5)

Nominee: None

 

(6)

U.S. Tax Identification Number: Redacted and provided to Issuer under separate cover.

 

 

Purchaser Schedule - 29


NAME AND ADDRESS OF

PURCHASER

   SERIES OF NOTES TO
BE PURCHASED
    

PRINCIPAL AMOUNT OF

NOTES TO BE
PURCHASED

 

INTEGRITY LIFE INSURANCE COMPANY

     Series C      $ 10,000,000  

400 Broadway, MS 80

     

Cincinnati, OH 45202-3341

     

 

(1)

Wire instructions redacted and provided to Issuer under separate cover.

 

(2)

Address for notices of payments, wire transfers and audit confirmations:

Integrity Life Insurance Company

400 Broadway, MS 80

Cincinnati, OH 45202-3341

invacctg@wslife.com

 

(3)

Address for all other communications:

Fort Washington Investment Advisors

Suite 1200 - Private Placements

303 Broadway

Cincinnati, OH 45202 Email address: privateplacements@fortwashington.com

 

(4)

Address for physical delivery of Note:

Delivery instructions redacted and provided to Issuer under separate cover.

 

(5)

Nominee: Hare & Co LLC

 

(6)

U.S. Tax Identification Number: Redacted and provided to Issuer under separate cover.

 

Purchaser Schedule - 30


NAME AND ADDRESS OF

PURCHASER

   SERIES OF NOTES TO
BE PURCHASED
    

PRINCIPAL AMOUNT OF

NOTES TO BE
PURCHASED

 

RGA REINSURANCE COMPANY

     Series C      $ 2,500,000  

16600 Swingley Ridge Rd.

     

Chesterfield, MO 63017-1706

     

 

(1)

All payments on or in respect of the Certificates to be by bank wire transfer of Federal or other immediately available funds identifying each payment as Americold Corp 4.1 1/8/2030, PPN#: 03063# AC8, principal, premium or interest to:

Wire instructions redacted and provided to Issuer under separate cover.

 

(2)

All notices and communications to be addressed as first provided above, except notices with respect to payments and written confirmation of each such payment, should be addressed to:

Hare & Co

The Bank of New York Mellon Corp.

Attn: P&I Department

PO Box 19266

Newark, NJ 07195

Email: privateplacements@rgare.com

 

(4)

Address for physical delivery of Note:

Delivery instructions redacted and provided to Issuer under separate cover.

 

(5)

Nominee: Hare & Co

 

(6)

U.S. Tax Identification Number: Redacted and provided to Issuer under separate cover.

 

Purchaser Schedule - 31


NAME AND ADDRESS OF

PURCHASER

   SERIES OF NOTES TO
BE PURCHASED
    

PRINCIPAL AMOUNT OF

NOTES TO BE
PURCHASED

 

RGA REINSURANCE COMPANY

     Series C      $ 5,000,000  

16600 Swingley Ridge Rd.

     

Chesterfield, MO 63017-1706

     

 

(1)

All payments on or in respect of the Certificates to be by bank wire transfer of Federal or other immediately available funds identifying each payment as Americold Corp 4.1 1/8/2030, PPN#: 03063# AC8, principal, premium or i