Exhibit 10.34
SECURITY AGREEMENT (this "Agreement"), dated as of March 11, 2002, by and
between AMERICOLD LOGISTICS, LLC, a Delaware limited liability company (the
"Debtor"), and VORNADO OPERATING L.P., a Delaware limited partnership (the
"Secured Party").
WITNESSETH:
WHEREAS, Debtor is indebted to Secured Party in the principal amount of
SIX MILLION DOLLARS ($6,000,000), which indebtedness is evidenced by a
promissory note, dated as of the date hereof (the "NOTE"), executed by Debtor in
favor of the Secured Party.
WHEREAS, to secure its payment of said indebtedness, and to induce the
Secured Party to extend said indebtedness, the Debtor has agreed to grant to the
Secured Party a security interest in certain collateral, on the terms and
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained and for other good and valuable consideration, the
receipt of which is hereby acknowledged, the parties agree as follows
Section 1. Grant of Security Interest. Debtor hereby grants to the Secured
Party, in order to secure the payment when due, whether by acceleration or
otherwise, of all of the obligations of the Debtor under the Note, a security
interest in and assignment of, and agrees and acknowledges that the Secured
Party has and shall continue to have a security interest in and assignment of,
any and all of the following property of the Debtor, whenever acquired or
arising and wherever located (together, the "Collateral"):
ALL ACCOUNTS, ACCOUNTS RECEIVABLE, CONTRACT RIGHTS, INSTRUMENTS,
NOTES, DRAFTS, ACCEPTANCES, DOCUMENTS, CHATTEL PAPER, ANY RIGHT OF
THE DEBTOR TO PAYMENT FOR GOODS SOLD OR LEASED OR FOR SERVICES
RENDERED, WHETHER OR NOT EARNED BY PERFORMANCE, AND ALL OTHER FORMS
OF OBLIGATIONS OWING TO THE DEBTOR, AND ALL OF THE DEBTOR'S RIGHTS
TO ANY MERCHANDISE OR OTHER GOODS (INCLUDING WITHOUT LIMITATION ANY
RETURNED OR REPOSSESSED GOODS AND THE RIGHT OF STOPPAGE IN TRANSIT)
WHICH IS REPRESENTED BY, ARISES FROM OR IS RELATED TO ANY OF THE
FOREGOING, WHETHER NOW OWNED OR EXISTING OR HEREAFTER CREATED,
ACQUIRED OR ARISING, AND HOWEVER EVIDENCED OR ACQUIRED, OR IN WHICH
THE DEBTOR NOW HAS OR HEREAFTER ACQUIRES ANY RIGHTS; AND ALL THE
DEBTOR'S RIGHTS TO PROCEEDS FROM THE FOREGOING, INCLUDING PROCEEDS
OF ANY INSURANCE, INDEMNITY, WARRANTY OR GUARANTY WITH RESPECT
THERETO
Anything herein to the contrary notwithstanding, Debtor shall remain liable
under the contracts and agreements included in the Collateral to perform all of
its duties and obligations thereunder to the same extent as if this Agreement
had not been executed.
Section 2. Perfection. Debtor authorizes the Secured Party to give,
execute, deliver, file and/or record any financing statement, notice,
instrument, document, agreement or other papers that may be necessary or
desirable, in the judgment of Secured Party, to create, preserve, perfect
or validate the security interest granted pursuant to this Agreement or
to enable Secured Party to exercise and enforce its rights hereunder with
respect to such security interest.
Section 3. Other Security Interest. This Agreement is subordinate to any
other pledge, financing arrangement, or security agreement in effect on, or
before, the date hereto, and no security interest or pledge is conveyed hereby
if and to the extent of doing so would cause the Debtor to be in default of any
other agreement. The security interest created by this Agreement will be
subordinate to any additional interest placed on the Collateral after the date
hereof, only to the extent the value of the Collateral exceeds the amount
secured hereby.
Section 4. Collateral Information. Debtor shall promptly deliver to
Secured Party a list setting forth such information regarding any of the
Collateral as may reasonably be requested from time to time by Secured Party.
Section 5. Event Of Default. The failure of the Debtor to make full and
prompt payment of amounts owed on the Note in accordance with its terms shall
constitute an "Event of Default" hereunder. The failure of the Debtor to perform
obligations under this Agreement, after notice and reasonable time to cure,
shall constitute an "Event of Default" hereunder.
Section 6. Cost of Performance. The cost of enforcement in any suit,
proceeding or action brought by the Secured Party arising from enforcement of
the terms of the Note or this Agreement shall be secured by the lien on the
Collateral.
Section 7. Rights of Secured Party upon Default.
If an Event of Default shall have occurred and be continuing, Secured
Party's rights and remedies with respect to the Collateral shall be those of a
secured party under the UCC and under any other applicable law, as the same may
from time to time be in effect, in addition to those rights granted herein.
Upon the occurrence of an Event of Default and during its continuance, but
only during such continuance, Secured Party may, but shall be under no
obligation to, from time to time:
(i) notify parties obligated on any of the Collateral to
make payment to Secured Party of any amounts due or to become
due thereunder;
(ii) receive any money or property at any time payable or
receivable on account of or in exchange for any of the
Collateral; and/or
(iii) demand, xxx for, collect or otherwise enforce collection
of any of the Collateral.
Upon the occurrence of an Event of Default and during its continuance, but
only during such continuance, unless requested to do so by and on behalf of
Secured Party, Debtor will not demand or receive any income from, interest or
other payment in respect of the Collateral, and if Debtor receives any such
income, interest or payment, without any demand by Secured Party, the
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same shall be held by Debtor in trust for Secured Party in the same form as
received, shall not be commingled with any assets of Debtor and shall be
delivered to Secured Party in the form as received, properly endorsed to permit
collection, not later than the next business day following the day of its
receipt; provided, however, that, at any time after the occurrence and during
the continuance of an Event of Default, Debtor shall, upon the request of
Secured Party, instruct all account debtors and other persons obligated in
respect of any of the Collateral to make all payments in respect of such
Collateral to an account designated by Secured Party.
Section 8. No Waiver. No failure on the part of Secured Party to exercise,
and no course of dealing with respect to, and no delay in exercising, any right
, power or remedy hereunder shall operate as a waiver thereof; nor shall any
single or partial exercise by Secured Party of any right, power or remedy
hereunder preclude any other or further exercise thereof or the exercise of any
other right, power or remedy. The remedies herein are cumulative and are not
exclusive of any remedies provided by law.
Section 9. Release of Collateral. The security interest in and lien upon
Debtor's right, title and interest in and to the Collateral shall be released
upon full satisfaction of all of the obligations of Debtor under the Note and
hereunder.
Section 10. Further Assurances. Debtor agrees that, from time to time upon
the request of Secured Party, it will execute and deliver such further documents
and take such other action as Secured Party may reasonably request in order
fully to effect the purposes of this Agreement, including, without limitation,
executing and delivering such documents as are necessary to perfect, confirm and
assure Secured Party's security interest in the Collateral and to assist Secured
Party's realization thereof.
Section 11. Definitions. Except as otherwise expressly defined herein, all
terms used herein that are defined in the Uniform Commercial Code as in effect
from time to time in the State of New York (the "UCC") have the same meaning as
in the UCC.
Section 12. Continuing Agreement. This is a continuing agreement and shall
remain in full force and effect and shall be binding upon Debtor, its successors
and assigns until such time as payment of all of the obligations of Debtor under
the Note shall have been paid in full.
Section 13. Notices. All notices made upon any party to this Agreement
shall be in writing addressed as follows:
If to Secured Party: VORNADO OPERATING L.P., a Delaware limited
partnership, at 000 Xxxxx 0, Xxxxxxx, XX 00000
If to Debtor: AMERICOLD LOGISTICS, LLC, a Delaware limited
liability company, at 00 Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx, XX 00000
Section 14. Governing Law; Jurisdiction; Waiver of Jury Trial.
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This Agreement is governed by, and shall be construed in accordance with,
the laws of the State of NewYork.
SECURED PARTY AND DEBTOR HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE
TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT AND
FOR ANY COUNTERCLAIM HEREIN.
Section 15. Severability. If any provision hereof is invalid and
unenforceable in any jurisdiction, then, to the fullest extent permitted by law,
(i) the other provisions hereof shall remain in full force and effect in such
jurisdiction and shall be liberally construed in favor of Secured Party in order
to carry out the intentions of the parties hereto as nearly as may be possible
and (ii) the invalidity or unenforceability of any provision hereof in any
jurisdiction shall not affect the validity or enforceability of such provision
in any other jurisdiction.
Section 16. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties have hereunto signed their names in the
space provided below.
AMERICOLD LOGISTICS, LLC
By /s/ X.X. Xxxxxx
-------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Chief Financial Officer
VORNADO OPERATING L.P.
By /s/ Xxxxxx Xxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxx
Title: Chief Financial Officer
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