Exhibit 10.41
PURCHASE AND ASSIGNMENT AGREEMENT
(Accounts Receivable)
THIS PURCHASE AND ASSIGNMENT AGREEMENT ("Agreement") is made as of the
31st day of December, 2002, by and between VORNADO CRESCENT CARTHAGE AND KC
QUARRY L.L.C., a Delaware limited liability company ("Purchaser"), and AMERICOLD
LOGISTICS, LLC, a Delaware limited liability company ("Seller").
W I T N E S S E T H:
WHEREAS, Seller is entitled to receive payments from third parties
("Obligors") with respect to certain accounts receivable of Seller in the amount
of $5,720,000 as more specifically identified on Schedule A attached hereto and
made a part hereof (the "Accounts Receivable"); and
WHEREAS, Seller desires to sell to Purchaser, and Purchaser desires to
purchase from Seller, all of Seller's right, title and interest in the Accounts
Receivable pursuant to the terms of this Agreement.
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:
1. Assignment and Acceptance. Seller hereby sells, assigns, transfers, and
conveys to the Purchaser all of the Seller's right, title, and interest in, to,
and under the Accounts Receivable and all proceeds therefrom. Purchaser hereby
accepts the sale, assignment, transfer, and conveyance of the Seller's right,
title, and interest in, to, and under the Accounts Receivable. Seller covenants
and agrees that it shall take such actions (including, but not limited to, the
execution and delivery upon demand, from time to time, of further instrument(s)
or document(s) as requested by Purchaser) which are reasonably necessary to
effect the sale and assignment to Purchaser of the Accounts Receivable. It is
the intention of the parties hereto that the provisions of this Agreement
constitute the purchase and sale of all of Seller's right, title and interest in
and to the Accounts Receivable, and not a loan secured by the Accounts
Receivable.
2. Purchase Price. As payment in full for the Accounts Receivable being
sold and assigned hereby, Purchaser shall pay to Seller Five Million Six Hundred
Thousand Dollars ($5,600,000) in cash by wire transfer of immediately available
funds at closing on the date hereof.
3. Collection of Accounts Receivable. Seller shall act as an agent for
Purchaser to collect amounts due from the Obligors with respect to the Accounts
Receivable. At Seller's expense, Seller shall use good faith, commercially
reasonable efforts consistent with past practice to collect the cash proceeds
pertaining to the Accounts Receivable in a timely manner and shall promptly
(within 2 business days) remit such cash collections to Purchaser upon receipt
by Seller.
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4. Non-Recourse. Purchaser acknowledges that, except as set forth in
Section 5 below, the sale and assignment of the Accounts Receivable is without
recourse and without any representation or warranty of any nature. Except for
Seller's obligations pursuant to Section 3 above, Purchaser acknowledges that
Seller shall have no obligation whatsoever with respect to payment of the
underlying obligations of the Obligors which are the basis for the Accounts
Receivable.
5. Representations and Warranties of Seller.
5.1 Organization and Authority of Seller. Seller is a limited
liability company duly organized, validly existing and in good standing under
the laws of the State of Delaware. Seller has all necessary power and authority
to own, lease and operate its properties and conduct its business as it is
currently being conducted.
5.2 Power and Authority; Due Authorization. Seller has full power
and authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. Seller has duly approved and authorized the
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby, and no other proceedings shall then be
necessary. Assuming that this Agreement constitutes a valid and binding
agreement of the Purchaser, this Agreement 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.
5.3 No Conflicts. The execution and delivery by the Seller of this
Agreement does not, and the performance by the Seller of its obligations under
this Agreement and the consummation of the transactions contemplated hereby will
not:
(a) conflict with or result in a violation or breach of any of
the terms, conditions or provisions of the certificate of organization or
operating agreement of the Seller,
(b) conflict with or result in a violation or breach of any
term or provision of any laws, statutes, rules, regulations, ordinances, other
pronouncements having the effect of law, writs, judgments, decrees, injunctions
or similar orders of any governmental entity, applicable to the Seller or the
Accounts Receivable, or
(c) (i) conflict with or result in a violation or breach of,
(ii) constitute (with or without notice or lapse of time or both) a default
under, or (iii) require the Seller to obtain any consent, approval or action of,
make any filing with or give any notice to any person (other than the Purchaser)
as a result or under the terms of, any agreement or license to which the Seller
is a party or by which the Accounts Receivable are bound.
5.4 Ownership of Accounts Receivable. The Accounts Receivable are owned
beneficially and of record by the Seller free and clear of any mortgage, pledge,
assessment, security interest, lease, lien, adverse claim, levy, charge or other
encumbrance of any kind.
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5.5 Quality of Accounts Receivable. The Accounts Receivable have
arisen in the ordinary course of business and represent bona fide claims of the
Seller against the Obligors for sales made or services rendered or other charges
arising on or before the date hereof. The Accounts Receivable are not subject to
valid claims of set-off or other defenses or counterclaims, and are collectible
in the ordinary course of business, without resort to litigation or
extraordinary collection activity. The parties acknowledge and agree that Seller
makes no representation or warranty whatsoever with respect to the credit
quality of any Obligor.
6. Representations and Warranties of Purchaser.
6.1 Organization and Authority of Purchaser. Purchaser is a limited
liability company duly organized, validly existing and in good standing under
the laws of the State of Delaware. Purchaser has all necessary power and
authority to own, lease and operate its properties and conduct its business as
it is currently being conducted.
6.2 Power and Authority; Due Authorization. Purchaser has full power
and authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. Purchaser has duly approved and authorized the
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby, and no other proceedings shall then be
necessary. Assuming that this Agreement constitutes a valid and binding
agreement of the Seller, this Agreement constitutes, or will constitute when
executed and delivered, a valid and binding agreement of Purchaser, 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.
6.3 No Conflicts. The execution and delivery by the Purchaser of
this Agreement does not, and the performance by the Purchaser of its obligations
under this Agreement and the consummation of the transactions contemplated
hereby will not:
(a) conflict with or result in a violation or breach of any of
the terms, conditions or provisions of the certificate of organization or
operating letter agreement of the Purchaser,
(b) conflict with or result in a violation or breach of any
term or provision of any laws, statutes, rules, regulations, ordinances, other
pronouncements having the effect of law, writs, judgments, decrees, injunctions
or similar orders of any governmental entity, applicable to the Purchaser, or
(c) (i) conflict with or result in a violation or breach of,
(ii) constitute (with or without notice or lapse of time or both) a default
under, or (iii) require the Purchaser to obtain any consent, approval or action
of, make any filing with or give any notice to any person (other than the
Seller) as a result or under the terms of, any agreement or license to which the
Purchaser is a party.
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7. Miscellaneous.
7.1 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.
7.2 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.
7.3 Binding Effect. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective heirs, executors,
administrators, successors and permitted assigns.
7.4 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.
7.5 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 Logistics, LLC
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Chief Financial Officer
Telefax: (▇▇▇) ▇▇▇-▇▇▇▇
If to Purchaser: Vornado Crescent Carthage and KC Quarry L.L.C.
c/o Vornado Realty Trust
▇▇▇ ▇▇▇▇▇ ▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telefax: (▇▇▇) ▇▇▇-▇▇▇▇
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 "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
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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.
7.6 Governing Law and Submission to Jurisdiction. 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.
7.7 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.
7.8 Construction. As herein used, the singular number shall include
the plural, the plural the singular, and the use of any gender shall be
applicable to all genders, unless the context would clearly not admit such
construction. Section or paragraph headings are employed herein solely for
convenience of referenced, and such headings shall not be used in construing any
term or provision of this Agreement. All references herein to "section" or
"paragraph" shall mean the appropriate numbered section or paragraph of this
Agreement except where reference is particularly made to some other instrument
or document.
7.9 Assignment. The obligations and rights of Seller under this
Agreement shall not be assigned or otherwise transferred and any such assignment
or transfer in violation hereof shall be void and of no effect. The obligations
and rights of Purchaser may be further assigned or transferred by Purchaser,
provided that any transferee specifically agrees to be bound by the terms and
conditions of this Agreement.
7.10 Survival of Representations and Warranties; Breach of Warranty.
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, except in
respect of a claim made prior to the expiration of such period. In the event
that either party breaches any representation or warranty contained in this
Agreement, the non-breaching party shall be entitled to collect from the
breaching party pre-judgment interest at a rate of ten percent (10%) per annum
from the date of the breach in addition to any damages resulting from such
breach.
[Signatures are on following page]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
PURCHASER:
VORNADO CRESCENT CARTHAGE AND
KC QUARRY L.L.C.
By: Vornado Carthage and KC Quarries TRS Inc.,
its managing member
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Title: Executive Vice President-Finance
and Administration
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SELLER:
AMERICOLD LOGISTICS, LLC
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Title: Executive Vice President-Finance
and Administration
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SCHEDULE A
List of Accounts Receivable
See attached pages.
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