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Exhibit 2.1
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (the "Agreement") is made as of the 26th day
of February, 1999, by and between AMERICOLD LOGISTICS, LLC, a Delaware limited
liability company ("Purchaser"), and AMERICOLD CORPORATION, an Oregon
corporation ("Seller").
W I T N E S S E T H:
WHEREAS, Seller is in the business of providing refrigerated, frozen and
dry warehouse storage services, logistics, distribution and transportation
services and other services and limited mining operations (collectively, the
"Business"); and
WHEREAS, Seller desires to sell to Purchaser, and Purchaser desires to
purchase from Seller, substantially all of the assets of Seller used or held for
use in the Business except for the Excluded Assets (as hereinafter defined)
pursuant to the terms of this Agreement; and
WHEREAS, the parties hereto desire to set forth certain representations,
warranties and covenants made by each to the other as an inducement to the
consummation of the transactions contemplated herein and certain additional
agreements related thereto.
NOW, THEREFORE, in consideration of the mutual representations,
warranties, covenants and agreements herein contained and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
ARTICLE 1
PURCHASE AND SALE OF PURCHASED ASSETS
1.1 Assets to be Acquired. Subject to and upon the terms and conditions
set forth herein, Purchaser hereby agrees to purchase from Seller, and Seller
hereby agrees to sell, transfer and assign to Purchaser all of the tangible and
intangible assets of Seller (but excluding the Excluded Assets) used or held for
use in connection with the Business, including, without limitation, the
following (collectively, the "Purchased Assets"):
(a) all of Seller's vehicles and equipment (excluding refrigeration
equipment which is part of the real estate) used or held for use by Seller in
connection with the Business as of the Closing (as hereinafter defined),
including, but not limited to, tools, fork lifts, racks, supplies, computers and
computer equipment, furniture and fixtures and those items listed on Schedule
1.1(a) attached hereto (the "Fixed Assets"); and
(b) all of Seller's right, title and interest in, to and under all
written or oral contracts, license agreements and all other agreements,
commitments and other instruments to which the Purchased Assets are subject or
bound or that otherwise pertain to the Business including without limitation the
agreements set forth in Schedule 1.1(b) attached hereto (collectively, the
"Contracts"); and
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(c) all of Seller's interest in, and rights and benefits accruing to
Seller under, those certain leases to which Seller is a party and which pertain
to the Business as identified on Schedule 1.1(c) attached hereto (collectively,
the "Assumed Leases"); and
(d) all of Seller's interest in and to the issued and outstanding
shares of Americold Services Corporation, a Delaware corporation; all of
Seller's membership interest in and to KC Underground, L.L.C., a Delaware
limited liability company ("KC Underground"); all of Seller's membership
interest in and to Inland Quarries, L.L.C., a Delaware limited liability company
("Inland Quarries"); and all of Seller's membership interest in and to
Americold/Xxxxxx, L.L.C., an Oregon limited liability company
("Americold/Xxxxxx"); and
(e) all rights and interests of Seller in any trademarks, service
marks, copyrights, logos, patents, inventions, processes, franchises,
registrations, license agreements, trade secrets, customer lists, trade lists
and trade or service names used in the Business, including without limitation
those marks and names listed on Schedule 1.1(e) attached hereto (collectively,
the "Intellectual Property"); and
(f) all of Seller's licenses, consents, permits, variances,
certifications and approvals of governmental agencies used or held for use in
connection with the Business, to the extent assignable; and
(g) all of Seller's right, title and interest in and to its
telephone numbers and the directory advertising for such telephone numbers for
each of its facilities and offices, to the extent assignable; and
(h) all of Seller's right, title and interest in and to its books
and records related to the Business and the Purchased Assets; and
(i) all of Seller's right, title and interest in and to its computer
software and licenses therefor and any proprietary technology and processes; and
(j) all of Seller's right, title and interest in and to any voting
securities of any corporation or other entity other than the securities held for
investment and listed on Schedule 1.1(j); and
(k) all of Seller's right, title and interest in and to all of the
cash, accounts receivable, other rights to receive payment from customers of the
Business and all other current assets relating to the Business (other than rents
receivable under Master Lease I); and
(l) all of Seller's right, title and interest in and to all other
tangible and intangible personal property used or held for use in connection
with the Business.
1.2 Excluded Assets. Notwithstanding anything to the contrary contained in
Section 1.1 hereof, the Purchased Assets shall not in any event include any real
estate assets of Seller including, without limitation, land, buildings and other
improvements thereon, including, without
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limitation, warehouse refrigeration equipment (other than the interests being
assigned that are covered by the Assumed Leases and the leasehold interests
being conveyed by Master Lease I and Master Lease II and any real estate owned
by KC Underground, Inland Quarries and Americold/Xxxxxx).
1.3 Conveyance of Assets. The conveyance, transfer and delivery of the
Purchased Assets shall be made by Seller and accepted by Purchaser as of the
Closing Date (as hereafter defined) as follows:
(a) Seller shall execute and deliver to Purchaser a blanket xxxx of
sale of tangible personal property and general assignment of intangible personal
property in the form of Exhibit 1.3(a) attached hereto and made a part hereof
(the "Xxxx of Sale");
(b) Seller and Purchaser shall execute and deliver an Assignment and
Assumption of Contracts in the form of Exhibit 1.3(b) attached hereto and made a
part hereof (the "Assignment of Contracts");
(c) Seller and Purchaser shall execute and deliver an Assignment and
Assumption of Master Lease in the form of Exhibit 1.3(c) attached hereto and
made a part hereof (the "Assignment of Master Lease I") assigning the tenant's
interest in that certain Master Lease Agreement ("Master Lease I") dated April,
1998 between Seller and Americold Real Estate, L.P.
(d) Seller and Purchaser shall execute and deliver an Assignment and
Assumption of Customer Leases in the form of Exhibit 1.3(d) attached hereto and
made a part hereof (the "Assignment of Customer Leases");
(e) Seller and Purchaser shall execute and deliver an Assignment and
Assumption of Equipment Leases in the form of Exhibit 1.3(e) attached hereto and
made a part hereof (the "Assignment of Equipment Leases");
(f) Seller and Purchaser shall execute and deliver an Assignment and
Assumption of Office Lease in the form of Exhibit 1.3(f) attached hereto and
made a part hereof (the "Assignment of Office Lease");
(g) Seller and Purchaser shall execute and deliver a second Master
Lease Agreement in the form of Exhibit 1.3(g) attached hereto and made a part
hereof ("Master Lease II"); and
(h) Seller shall execute and deliver such additional instruments of
sale, transfer, conveyance and assignment as of the Closing Date as counsel to
Purchaser shall reasonably deem necessary or appropriate to transfer the
Purchased Assets to Purchaser.
1.4 Assumption of Liabilities. Purchaser agrees to assume, from and after
the Closing Date, (i) all duties and obligations of Seller under the Contracts,
(ii) all duties and obligations of Seller under the Assumed Leases, and (iii)
all of the accounts payable and other current liabilities of
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Seller (other than current debt service on any loans) with respect to the
Business and the Purchased Assets; provided, however, that Purchaser shall not
assume any of the Seller Transaction Expenses, as defined and provided in
Section 3.6 hereof.
1.5 Closing. The closing of the transaction contemplated herein (the
"Closing") shall occur no later than February 28, 1999 (such date to be herein
referred to as the "Closing Date") and shall take place at the offices of Arnall
Golden & Xxxxxxx, LLP or by the exchange of documents and instruments by mail,
courier, telecopy and wire transfer to the extent mutually acceptable to the
parties hereto upon compliance with the terms, conditions and contingencies
contained herein. All computations, adjustments, and transfers for the purposes
hereof shall be effective as 11:59 p.m. on the Closing Date.
ARTICLE 2
PURCHASE PRICE; ESTIMATED CLOSING AMOUNT AND
PURCHASE PRICE ADJUSTMENTS
2.1 Purchase Price. The purchase price to be paid to Seller at Closing for
the Purchased Assets ("Purchase Price") shall be $11,556,213 and shall be
payable in cash or other immediately available funds at Closing.
2.2 Adjustment to Purchase Price for Working Capital. The Purchase Price
is based upon the presumption that the Net Working Capital (as hereinafter
defined) of the Business as of the Closing Date is $3,116,400 ("Projected Net
Working Capital"). In the event the actual Net Working Capital of the Business
as of the Closing Date ("Closing Net Working Capital") is determined to be less
than or greater than Projected Net Working Capital, the Purchase Price shall be
adjusted in the following manner: Within thirty (30) days following the Closing
Date, the actual Net Working Capital as the Closing Date shall be determined by
Seller and such determination shall be subject to reasonable review and
confirmation by Purchaser. The Purchase Price shall be increased by the amount
that Closing Net Working Capital exceeds Projected Net Working Capital. The
Purchase Price shall be reduced by the amount that Projected Net Working Capital
exceeds Closing Net Working Capital. Any adjustment to the Purchase Price
pursuant to this Section 2.2 shall be due and payable by the applicable party
within ten (10) days following determination of the Closing Net Working Capital.
For purposes of this Agreement, "Net Working Capital" shall mean the current
assets of Seller with respect to the Business and the Purchased Assets minus the
current liabilities of Seller with respect to the Business and the Purchased
Assets (other than current debt service on any loans) as determined in
accordance with generally accepted accounting principles.
2.3 Adjustment to Purchase Price for KC Shutdown. In the event the amount
actually expended by KC Underground in connection with the KC Facility Shutdown
(as hereinafter defined) during the seven (7) year period ("Shutdown Adjustment
Period") immediately following the Closing Date is less than $10,000,000, then
in such event the Purchase Price shall be increased by the difference between
the amount actually expended and $10,000,000. Within sixty (60) days following
the end of the Shutdown Adjustment Period, Purchaser shall deliver to Seller
written documentation evidencing, to Seller's reasonable satisfaction, the total
amount expended by Purchaser in connection with the KC Facility Shutdown during
the Shutdown Adjustment Period.
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Any adjustment to the Purchase Price pursuant to this Section 2.3 shall be due
and payable thirty (30) days following Seller's receipt of written documentation
evidencing, to Seller's reasonable satisfaction, the total amount expended by
Purchaser in connection with the KC Facility Shutdown during the Shutdown
Adjustment Period.
2.4 Adjustment to Purchase Price for Certain Capital Expenditures. The
Purchase Price is based upon the presumption that Purchaser will incur capital
expenditures for the Business in the amount of at least $3,251,107 ("Projected
Capital Expenditures") during the period from the Closing Date until the last
day of the twelfth calendar month following the month in which the Closing
occurs ("Capital Expenditure Period"). In the event the actual amount of capital
expenditures for the Business during the Capital Expenditure Period ("Actual
Capital Expenditures") is less than the Projected Capital Expenditures, the
Purchase Price shall be increased by the difference between the Projected
Capital Expenditures and the Actual Capital Expenditures. Within sixty (60) days
following the end of the Capital Expenditure Period, Purchaser shall deliver to
Seller written documentation evidencing, to Seller's reasonable satisfaction,
the Actual Capital Expenditures by Purchaser during the Capital Expenditure
Period. Any adjustment to the Purchase Price pursuant to this Section 2.4 shall
be due and payable by Purchaser within ninety (90) days following the end of the
Capital Expenditure Period.
ARTICLE 3
ADDITIONAL COVENANTS
3.1 Due Diligence. Prior to the Closing Date, Seller shall have delivered
to Purchaser all schedules (the "Disclosure Schedules") containing information
regarding the Seller required to be attached hereto. The Disclosure Schedules
shall be deemed for all purposes of this Agreement to constitute an integral
part of this Agreement and the representations and warranties of the Seller
contained therein. The parties hereto acknowledge and agree that the information
in the Disclosure Schedules are provided based upon the knowledge of Seller,
without any inquiry, and no representations or warranties whatsoever are hereby
made with respect to the completeness or accuracy of the Disclosure Schedules.
3.2 Employment Matters. Purchaser shall have the right to hire any and all
of the employees of the Business as of the Closing Date. From and after the date
of this Agreement, Seller shall assist Purchaser with transferring the employees
of the Business to Purchaser so that the process is completed on the Closing
Date. Seller shall be responsible for providing all notices and other
communications to employees of Seller which may be required under the Worker
Adjustment and Retraining Act (the "WARN Act") or any other applicable statute,
law or regulation in connection with the transaction contemplated hereby. Seller
shall terminate all of its employees employed by the Business whom Purchaser
shall hire effective as of the Closing Date. Seller shall pay all obligations,
imposed by law or otherwise, to such employees for all periods through the
Closing Date, including, without limitation, obligations for payroll, vacation
time, sick time and other obligations in connection with such employees. Seller
shall assist Purchaser in continuing the Employee Benefit Plans. Purchaser shall
assume all the obligations and liabilities whatsoever in respect of severance,
accrued vacation or sick leave, WARN Act, income tax withholding, payroll and/or
unemployment tax, workers' compensation, pension, profit-sharing, health
insurance, FMLA
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(as hereinafter defined), COBRA (as hereinafter defined) or any other employee
or other benefit liabilities in respect of any employees in the Business or in
respect of any Employee Benefit Plans (as hereinafter defined), including,
without limitation any contribution, tax, lien, penalty, cost, interest, claim,
loss, action, suit, damage, cost assessment, withdrawal liability, liability to
the Pension Benefit Guaranty Corporation (the "PBGC"), liability under Section
412 of the Internal Revenue Code of 1986, as amended (the "Code") or Section
302(a)(2) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA") or other similar liability or expense of Seller.
3.3 Consents. Prior to the Closing, Seller shall deliver to Purchaser
copies of all correspondence to and from landlords and tenants of the Assumed
Leases and the landlords of the subleased facilities pursuant to Master Lease I
and Master Lease II. In addition, prior to the Closing Date, Seller shall
deliver to Purchaser consents from the landlords and/or tenants as applicable of
the Assumed Leases and the landlords of the subleased facilities pursuant to
Master Lease I and Master Lease II. Purchaser agrees to cooperate with Seller,
upon Seller's request, in Seller's effort to obtain the required consents. Any
charges imposed by the landlords or other parties for such consents shall be
borne by Seller.
3.4 Allocation of Purchase Price Among Purchased Assets. The Purchase
Price shall be allocated for tax purposes among each item or class of Purchased
Assets as mutually agreed to by Purchaser and Seller and set forth on Schedule
3.4 attached hereto. Seller and Purchaser agree that they will prepare and file
any notice or other filing required pursuant to Section 1060 of the Code, and
that any such notices or filings will be prepared based upon such tax allocation
of the Purchase Price. Purchaser agrees to send to Seller a completed copy of
its Form 8594 ("Asset Acquisition Statement under Section 1060") with respect to
this transaction prior to filing such form with the Internal Revenue Service.
3.5 Tax Matters.
(a) As used in this Agreement, the following terms have the
specified meanings:
(i) "Tax Authority" shall mean any United States federal,
foreign, national, state, county or municipal or other local government, any
subdivision, agency, commission or authority thereof, or any quasi-governmental
body exercising any taxing authority or any other authority exercising tax
regulatory authority.
(ii) "Tax Return" shall mean any return, amended return,
estimated return, information return and statement (including any related or
supporting information) filed or to be filed with any Tax Authority in
connection with the determination, assessment, collection or administration of
any Tax.
(iii) "Tax(es)" shall mean all taxes, charges, fees, interest,
fines, penalties, additions to tax or other assessments, including without
limitation, income, excise, environmental, property, sales, gross receipts,
gains, transfer, occupation, privilege, employment (including social security
and unemployment), use, value added, capital stock or surplus, franchise
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taxes, advance corporate tax and customs duties imposed by any Tax Authority,
payable by Seller or relating to or chargeable against Seller's assets, revenues
or income.
(b) Subject to Section 3.5(c) hereof, Seller shall be solely
responsible for and shall pay, without any cost to the Purchaser (i) any and all
Taxes for which Seller is or may be liable, arising from Seller's activities,
the Business or use of the Purchased Assets prior to Closing (regardless of
whether the filing of any Tax Return with respect thereto or payment of any
amount in respect thereof is filed, paid or due prior to, on or after the
Closing Date), (ii) any Taxes with respect to the acquisition by Purchaser from
Seller of the Purchased Assets, and all other Taxes, if any, imposed by any Tax
Authority assessed in connection with, on account of or resulting from the
consummation of the transfer of the Purchased Assets to the Purchaser.
(c) Real and personal property ad valorem Taxes, if any, with
respect to the Purchased Assets shall be prorated between Seller on the one
hand, and the Purchaser on the other hand, as of the Closing Date. Should any
amount of such Taxes to be prorated not be fully determined as of the Closing
Date, a mutually satisfactory estimate of such amount, made on the basis of
Seller's records, shall be used as the basis for settlement at Closing, and the
amount finally determined will be prorated and appropriate settlement
adjustments made as soon as practicable after such final determination.
(d) Except as otherwise provided in this Agreement, the parties
hereby agree that each of them shall cooperate with the other in executing or
causing to be executed any required document and by making available to the
other all work papers, records and notes of any kind at all reasonable times for
the purpose of allowing the appropriate party to complete Tax Returns,
participate in a proceeding, obtain refunds, make any determination required
under this Agreement or defend or prosecute Tax claims. Notwithstanding anything
to the contrary contained herein, Seller shall have sole and exclusive
responsibility and authority to prepare and file all Tax Returns concerning
Seller related activities occurring prior to the Closing, including, without
limitation, its operation of the Business and its use of the Purchased Assets
and all matters under agreements whether or not being assumed by Purchaser
(regardless of when such return is filed). Purchaser shall be given copies of
any such return related to the Business filed by Seller.
3.6 Transaction Expenses. All of the expenses incurred by Purchaser in
connection with the authorization, negotiation, preparation, execution and
performance of this Agreement and other agreements referred to herein and the
consummation of the transactions contemplated hereby, including, without
limitation, all fees and expenses of agents, representatives, brokers, counsel
and accountants for Purchaser, shall be paid by Purchaser ("Purchaser
Transaction Expenses"). All expenses incurred by the Seller in connection with
the authorization, negotiation, preparation, execution and performance of this
Agreement and the other agreements referred to herein and the consummation of
the transactions contemplated hereby, including without limitation, all fees and
expenses of agents, representatives, brokers, counsel and accountants, shall be
paid by the Seller ("Seller Transaction Expenses").
3.7 Access to Books and Records. After the Closing, Purchaser shall
preserve all of the records and books pertaining to the Business and the
Purchased Assets relating to the period
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prior to Closing until the later of (a) the longest time period prescribed by
any relevant Tax Authority for the retention of supporting documentation for Tax
Returns for periods beginning prior to the Closing date, and regardless of
whether such periods end before or after the Closing Date or (b) the seventh
anniversary of the Closing Date, and, until such time, make them available,
during normal business hours, to Seller and its designees, counsel, accountants,
and others authorized by them for inspection and the making of copies thereof.
3.8 Operation in Ordinary Course. Seller shall operate the Business in the
ordinary course through the Closing Date.
3.9 Closure of Kansas City Facility.
(a) Purchaser and Seller hereby acknowledge the following: Seller
has conveyed its refrigerated warehouse facility in Kansas City, Kansas (the "KC
Facility") to KC Underground, which is wholly-owned by Seller. Seller was
carrying a liability on its books in the amount of $14,896,000 for the costs
associated with closing the KC Facility and maintaining the existing caves at
the KC Facility to the extent required to support third party surface rights
(such closing and maintenance collectively, the "KC Facility Shutdown"). By
virtue of such transfer of the KC Facility to KC Underground, KC Underground has
assumed responsibility for the KC Facility Shutdown. Purchaser and Seller
acknowledge and agree that the Purchase Price for the Purchased Assets reflects
that KC Underground is responsible for paying the cost for the KC Facility
Shutdown, subject to the reimbursement and indemnification provisions set forth
in Section 3.9(b) below. Purchaser shall cause KC Underground to undertake the
KC Facility Shutdown in a reasonable and diligent manner, subject to
consultation with Seller. Purchaser shall keep Seller informed of the progress
of the KC Facility Shutdown by delivering periodic written reports to Seller and
Purchaser shall consult with Seller concerning the cost and method of
implementing the KC Facility Shutdown.
(b) In the event the costs associated with the KC Facility Shutdown
exceed $10,000,000, then Seller shall reimburse Purchaser for any such excess
costs and Seller hereby agrees to indemnify Purchaser for the amount of any and
all losses, costs, expenses, damages, claims or liabilities for the KC Facility
Shutdown to the extent any such amount exceeds $10,000,000 (such amount in
excess of $10,000,000 is the "Indemnified Amount"); provided, however, that the
Indemnified Amount shall be limited in all events to an amount not to exceed
$7,600,000. Seller shall pay any Indemnified Amount within thirty (30) days
following Seller's receipt of written notice from Purchaser that such
Indemnified Amount is due, and such notice from Purchaser shall include
documentation evidencing, to Seller's reasonable satisfaction, the total amount
expended by Purchaser in connection with the KC Facility Shutdown as of the date
of the notice.
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ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF SELLER
In order to induce the Purchaser to enter into this Agreement and
consummate the transactions contemplated hereby, Seller represents and warrants
to the Purchaser as follows, each of which warranties and representations is
material to and relied upon by the Purchaser.
4.1 Organization and Authority of Seller. Seller is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Oregon. Seller has all necessary corporate power and authority to own, lease and
operate its properties and conduct its business as it is currently being
conducted.
4.2 Corporate Power and Authority; Due Authorization. Seller has full
corporate power and authority to execute and deliver this Agreement and each of
the Transaction Documents to which Seller is or will be a party and to
consummate the transactions contemplated hereby. "Transaction Documents" means
each of the agreements, documents and instruments referenced in this Agreement
to be executed and delivered by Seller. Prior to the Closing, the directors and
the stockholders of Seller shall have duly approved and authorized the execution
and delivery of this Agreement and each of the Transaction Documents to which
Seller is or will be a party and the consummation of the transactions
contemplated hereby and thereby, and no other corporate proceedings shall then
be necessary. Assuming that this Agreement and each of the Transaction Documents
to which Purchaser is a party constitutes a valid and binding agreement of the
Purchaser, this Agreement and each of the Transaction Documents constitutes, or
will constitute when executed and delivered, a valid and binding agreement of
Seller, in each case enforceable in accordance with its terms, subject to laws
of general application in effect affecting creditors' rights and subject to the
exercise of judicial discretion in accordance with general equitable principles.
4.3 Tax Returns and Payments. Seller has correctly and timely filed all
Tax Returns required by law to be filed on or before the date of this Agreement
and shall correctly and timely file all Tax Returns required by law to be filed
on or prior to the Closing Date. All such Tax Returns are true, correct and
complete in all respects, and all amounts shown as owing thereon have been paid.
No penalties, interest or other charges are or will be due with respect to the
late filing of any such Tax Returns. Seller has made all estimated Tax payments
required to be made under the Code. Taxes for all Tax periods (or portions
thereof) ending prior to or on the Closing Date have been, or prior to the
Closing shall be, fully paid.
4.4 Litigation. To Seller's knowledge, without inquiry, there is not (i)
any material claim, legal action, suit, arbitration, governmental investigation
or other legal or administrative proceeding affecting the delivery of the
Purchased Assets as required hereunder or (ii) order, decree or judgment in
progress, pending or in effect or threatened, affecting the delivery of the
Purchased Assets as required hereunder and Seller does not know or have reason
to know of any basis for the same.
4.5 Benefit Plans and ERISA. To Seller's knowledge, without inquiry,
Schedule 4.5 sets forth a true and complete list of each "employee benefit plan"
(as defined by Section 3(3) of the
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Employee Retirement Income Security Act of 1974, as amended ("ERISA")), (each
such plan, agreement, policy, trust fund or arrangement is referred to herein as
an "Employee Benefit Plan", and collectively, the "Employee Benefit Plans" that
is currently in effect, or which has been approved before the date hereof but is
not yet effective, for the benefit of employees, and their beneficiaries or any
other persons performing services for Seller in the Business.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES
OF THE PURCHASER
In order to induce Seller to enter into this Agreement and consummate the
transactions contemplated hereby, the Purchaser represents and warrants to
Seller as follows, each of which representations and warranties is material to
and relied upon by Seller:
5.1 Organization of the Purchaser. The Purchaser is a limited liability
company duly organized and validly existing under the laws of the State of
Delaware and has the power and authority to own its property and to carry on its
business as now being conducted by it.
5.2 Power and Authority; Due Authorization. The Purchaser has full power
and authority to execute and deliver this Agreement and each of the other
agreements, documents and instruments referenced in this Agreement to which the
Purchaser is or will be a party (the "Purchaser's Transaction Documents") and to
consummate the transactions contemplated hereby and thereby. Prior to the
Closing, the Manager of the Purchaser shall have duly approved and authorized
the execution and delivery of this Agreement and each of the Purchaser's
Transaction Documents and the consummation of the transactions contemplated
hereby and thereby, and no other proceedings on the part of the Purchaser are
necessary to approve and authorize the execution and delivery of this Agreement
and such Purchaser's Transaction Documents and the consummation of the
transactions contemplated hereby and thereby. Assuming that this Agreement and
each of the Purchaser's Transaction Documents constitutes a valid and binding
agreement of Seller, this Agreement and each of the Purchaser's Transaction
Documents constitutes, or will constitute when executed and delivered, a valid
and binding agreement of the Purchaser, enforceable against the Purchaser in
accordance with its terms, subject to laws of general application in effect
affecting creditors' rights and subject to the exercise of judicial discretion
in accordance with general equitable principles.
ARTICLE 6
CONDITIONS TO OBLIGATIONS OF
THE PURCHASER TO CLOSE
Each and every obligation of the Purchaser under this Agreement to be
performed on or prior to the Closing shall be subject to the fulfillment, on or
prior to the Closing, of each of the following conditions unless and to the
extent any such condition is expressly waived in writing by Purchaser:
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6.1 Representations and Warranties True at Closing. The representations
and warranties made by Seller in or pursuant to this Agreement or given on its
behalf hereunder shall be true and correct in all material respects on and as of
the Closing Date.
6.2 Obligations Performed. Seller shall have performed and complied in all
material respects with all agreements, conditions and obligations required by
this Agreement to be performed or complied with by it prior to or at the
Closing.
6.3 Consents. Seller shall have obtained and delivered to Purchaser
written consents of all persons or entities whose consent is required to
consummate the transactions contemplated herein, if any, and all of such
consents shall remain in full force and effect at and as of the Closing,
including the consents to assignment of the Assumed Leases and to subleasing
under Master Lease I and Master Lease II.
6.4 Closing Deliveries. Seller shall have delivered to Purchaser each of
the following, together with any additional items which Purchaser may reasonably
request to effect the transactions contemplated herein:
(a) possession of the Purchased Assets;
(b) a certified copy of the corporate resolutions of the directors
of Seller authorizing the transactions contemplated herein and the execution,
delivery and performance of this Agreement and the Transaction Documents by
Seller;
(c) the documents and instruments described in Section 1.3 hereof;
(d) written consents from all persons and entities whose consent to
the transactions contemplated herein is required;
(e) any other documents or agreements contemplated hereby and/or
necessary or appropriate to consummate the transactions contemplated hereby.
6.5 Disclosure Schedules. Seller shall have provided Purchaser with
updated Disclosure Schedules dated as of the Closing Date.
6.6 Legality. No federal or state statute, rule, regulation, executive
order, decree or injunction shall have been enacted, entered, promulgated or
enforced by any court or governmental authority which is in effect and has the
effect of making the transactions contemplated herein illegal or otherwise
prohibiting the consummation of the transactions contemplated herein.
6.7 No Changes Prior to Closing. After execution of this Agreement and
prior to the Closing Date, none of the following shall have occurred:
(a) damage or destruction in the nature of a casualty loss, whether
covered by insurance or not, materially and adversely affecting the Business; or
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(b) the legal inability of Seller to convey, assign and transfer to
Purchaser any material portion of the Purchased Assets with the effect of
materially and adversely affecting the ability of Purchaser to utilize the
Purchased Assets in a manner consistent with the operation of the Business.
ARTICLE 7
CONDITIONS TO SELLER'S OBLIGATIONS
Each and every obligation of Seller under this Agreement to be performed
on or prior to the Closing, shall be subject to the fulfillment, on or prior to
the Closing, of each of the following conditions unless and to the extent any
such condition is specifically waived in writing by Seller:
7.1 Representations and Warranties True at Closing. The representations
and warranties made by Purchaser in or pursuant to this Agreement or given on
its behalf hereunder shall be true and correct in all material respects, on and
as of the Closing Date.
7.2 Obligations Performed. The Purchaser shall have performed and complied
in all material respects with all agreements, conditions and obligations
required by this Agreement to be performed or complied with by it prior to or at
the Closing.
7.3 Closing Deliveries. The Purchaser shall have delivered to Seller each
of the following, together with any additional items which Seller may reasonably
request to effect the transactions contemplated herein:
(a) the Purchase Price;
(b) evidence of authority of the Manager of the Purchaser
authorizing the transactions contemplated herein and the execution, delivery and
performance of this Agreement and the Purchaser's Transaction Documents by the
Purchaser, together with incumbency certificates with respect to the respective
managers or officers of the Purchaser executing documents or instruments on
behalf of the Purchaser;
(c) the documents and instruments described in Section 1.3 hereof;
(d) any other documents or agreements contemplated hereby and/or
necessary or appropriate to consummate the transactions contemplated hereby.
7.4 Legality. No federal or state statute, rule, regulation, executive
order, decree or injunction shall have been enacted, entered, promulgated or
enforced by any court or governmental authority which is in effect and has the
effect of making the transactions contemplated herein illegal or otherwise
prohibiting the consummation of the transactions contemplated herein.
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ARTICLE 8
MISCELLANEOUS PROVISIONS
8.1 Severability. If any provision of this Agreement is prohibited by the
laws of any jurisdiction as those laws apply to this Agreement, that provision
shall be ineffective to the extent of such prohibition and/or shall be modified
to conform with such laws, without invalidating the remaining provisions hereto.
8.2 Modification. This Agreement may not be changed or modified except in
writing specifically referring to this Agreement and signed by each of the
parties hereto.
8.3 Assignment, Survival and Binding Agreement. This Agreement and the
Transaction Documents and the Purchaser's Transaction Documents may not be
assigned by the Seller without the prior written consent of Purchaser. The terms
and conditions hereof shall survive the Closing as provided herein and shall
inure to the benefit of and be binding upon the parties hereto and their
respective heirs, personal representatives, successors and assigns.
8.4 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
8.5 Notices. All notices, requests, demands, claims or other
communications hereunder will be in writing and shall be deemed duly given if
personally delivered, sent by a recognized overnight delivery service which
guarantees next day delivery ("Overnight Delivery") or mailed by registered or
certified mail, return receipt requested, postage prepaid and addressed to the
intended recipient as set forth below:
If to Seller: Americold Corporation
00 Xxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: President
Telefax: (000) 000-0000
If to the Purchaser: AmeriCold Logistics, LLC
00 Xxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: President
Telefax: (000) 000-0000
or at such other address as any party hereto notifies the other parties hereof
in writing. The parties hereto agree that notices or other communications that
are sent in accordance herewith (i) by personal delivery, will be deemed
received on the day sent or on the first business day thereafter if not sent on
a business day, (ii) by Overnight Delivery, will be deemed received on the first
business day immediately following the date sent, and (iii) by U.S. mail, will
be deemed received three (3) business days immediately following the date sent.
For purposes of this Agreement, a
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"business day" is a day on which Purchaser is open for business and shall not
include a Saturday or Sunday or legal holiday. Notwithstanding anything to the
contrary in this Agreement, no action shall be required of the parties hereto
except on a business day and in the event an action is required on a day which
is not a business day, such action shall be required to be performed on the next
succeeding day which is a business day.
8.6 Entire Agreement; No Third Party Beneficiaries. This Agreement,
together with the Exhibits and Schedules attached hereto, constitutes the entire
agreement and supersedes any and all other prior agreements and undertakings,
both written and oral, among the parties, or any of them, with respect to the
subject matter hereof and, except as otherwise expressly provided herein, is not
intended to confer upon any person other than Seller and Purchaser, any rights
or remedies hereunder.
8.7 Further Assurances. The parties to this Agreement agree to execute and
deliver, both before and after the Closing, any additional information,
documents or agreements contemplated hereby and/or necessary or appropriate to
effect and consummate the transactions contemplated hereby. Seller agrees to
provide to Purchaser, both before and after the Closing, such information as
Purchaser may reasonably request in order to consummate the transactions
contemplated hereby and to effect an orderly transition of the Business
following Closing.
8.8 Governing Law and Submission to Jurisdiction. Except as otherwise
expressly provided herein, this Agreement shall be governed by and construed
under the laws of the State of Delaware without giving effect to otherwise
applicable principles of conflicts of laws.
8.9 Pronouns. All personal pronouns in this Agreement, whether used in the
masculine, feminine or neuter gender shall include all other genders, and the
singular shall include the plural and the plural shall include the singular.
8.10 Survival of Representations and Warranties. The representations and
warranties set forth in this Agreement shall survive the Closing for a period of
one year and thereafter such representations and warranties shall be null and
void with no further force and effect.
[Signatures on next page]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
PURCHASER:
AMERICOLD LOGISTICS, LLC
By: /s/ Xxxxxxxxx X. Xxxxxxxxx III
-------------------------------
Name: Xxxxxxxxx X. Xxxxxxxxx III
-----------------------------
Its: Senior Vice President
------------------------------
SELLER:
AMERICOLD CORPORATION
By: /s/ Xxxxxx X. XxXxxxxx
-------------------------------
Name: Xxxxxx X. XxXxxxxx
-----------------------------
Its: President
------------------------------
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LIST OF SCHEDULES AND EXHIBITS
Schedule 1.1(a) Fixed Assets
Schedule 1.1(b) Contracts
Schedule 1.1(c) Assumed Leases
Schedule 1.1(e) Intellectual Property
Schedule 1.1(j) Investment Securities
Schedule 3.4 Purchase Price Allocation
Schedule 4.5 Employee Benefit Plans
Exhibit 1.3(a) Xxxx of Sale
Exhibit 1.3(b) Assignment of Contracts
Exhibit 1.3(c) Assignment of Master Lease I
Exhibit 1.3(d) Assignment of Customer Leases
Exhibit 1.3(e) Assignment of Equipment Leases
Exhibit 1.3(f) Assignment of Office Lease
Exhibit 1.3(g) Master Lease II
