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Exhibit 10.12(A)
SECOND AMENDMENT TO MASTER LEASE AGREEMENT, effective as of
the 22nd day of February, 2001 (this "Amendment"), between AMERICOLD
CORPORATION, an Oregon corporation, as successor to URS LOGISTICS, INC., a
Delaware corporation ("Landlord"), and AMERICOLD LOGISTICS, LLC, a Delaware
limited liability company ("Tenant").
W I T N E S E T H:
WHEREAS, Landlord and Tenant are parties to a certain Master
Lease Agreement, dated as of March 11, 1999, as amended by that certain letter
agreement, dated November 30, 1999 (as so amended, the "Lease");
WHEREAS, the Landlord and Tenant wish to amend the Lease on
the terms and conditions hereinafter set forth.
NOW, THEREFORE, for TEN DOLLARS and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
1. Definitions.
(a) All capitalized terms used but not defined herein shall have
the meaning given such terms in the Lease.
(b) The parties hereto acknowledge and agree that for the purposes
of calculating Percentage Rent, Operating Income shall not
include any revenues from transportation management services
performed at the Leased Property.
(c) The following definitions are hereby added to the Lease:
1. 2002 Percentage Rent Threshold: As defined
in Section 2(c) of this Amendment.
2. Encumbered Leases: Collectively, (i) that
certain Master Lease Agreement, dated as of
April 22, 1998, between URS Real Estate,
L.P., and Americold Corporation, as
successor to URS Logistics, Inc., as amended
and (ii) that certain Master Lease
Agreement, dated as of April 22, 1998,
between Americold Real Estate, L.P., and
Americold Corporation, as amended.
3. Encumbered Lease Rental Amount: The
aggregate amount of Minimum Rent and
Percentage Rent payable under the Encumbered
Leases with respect to a particular Lease
Year.
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4. Related Leases: Each of the Leases
identified in clauses (iii), (iv) and (v) of
the definition of "Other Leases".
2. Rent.
(a) Minimum Rent for the period commencing January 1, 2001 through
December 31, 2001 shall be reduced to the extent required so
that in no event shall the Minimum Rent exceed an amount equal
to 2.0% of the excess of $146,000,000 over the Encumbered
Lease Rental Amount. Notwithstanding anything in Section
3.1(b) of the Lease to the contrary, during such Lease Year,
Tenant shall have no obligation whatsoever to pay Percentage
Rent under the Lease.
(b) Minimum Rent for the period commencing January 1, 2002 through
December 31, 2002 shall be reduced to the extent required so
that in no event shall the Minimum Rent exceed an amount equal
to 2.0% of the excess of $150,000,000 over the Encumbered
Lease Rental Amount. Notwithstanding anything in Section
3.1(b) of the Lease to the contrary, during such Lease Year
Tenant shall have no obligation to pay Percentage Rent under
the Lease until such time as the aggregate amount of
Percentage Rent payable for such Lease Year, pursuant to the
terms of the Lease and each of the Other Leases as in effect
immediately prior to the date hereof, shall exceed $43,500,000
(such amount, the "2002 Percentage Rent Threshold"). Once the
2002 Percentage Rent Threshold is achieved, Tenant shall pay
2.0% of the aggregate Percentage Rent that would otherwise
have been payable under the Lease and each of the Related
Leases, as in effect immediately prior to the date hereof, in
excess of the 2002 Percentage Rent Threshold.
(c) For Lease Years 2001 and 2002, Tenant shall estimate (i) the
Minimum Rent for such Lease Year, (ii) the "Minimum Rent"
under the Related Leases for such Lease Year, (iii) the
Encumbered Lease Rental Amount for such Lease Year, (iv) the
portions of such Encumbered Lease Rental Amount (on a
month-by-month basis) that Landlord will recognize as income
under GAAP and (v) the percentage of Tenant's EBITDA for such
Lease Year that will accrue in each month of such Lease Year
(each such percentage, the "Monthly EBITDA Percentage"). Each
such estimate shall be subject to the approval of Landlord,
such approval not to be unreasonably withheld. Tenant shall
pay the Minimum Rent hereunder in monthly installments so that
each such installment shall equal 2.0% of X, where:
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X plus the portion of the Encumbered Lease Rental Amount
installment for such month that Landlord will recognize as
income under GAAP during such month
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Minimum Rent hereunder, plus the "Minimum Rent"
under the Related Leases, plus the Encumbered Lease
Rental Amount, in each case estimated
for such Lease Year = Monthly EBITDA Percentage
(d) Not later than sixty (60) days after the end of each of the
Lease Years described in clauses (a) and (b) above, Landlord
and Tenant shall jointly determine the amount of Minimum Rent
actually payable by Tenant with respect to such prior Lease
Year. To the extent such joint determination discloses a
deficiency in the amount of Minimum Rent actually paid by
Tenant with respect to the applicable Lease Year, Tenant shall
promptly, and in all events within ten (10) Business Days of
such determination, pay the Landlord the amount of such
deficiency. To the extent such joint determination discloses
an overpayment of Minimum Rent by Tenant with respect to the
applicable Lease Year, then (provided no Event of Default has
occurred and is continuing) Landlord shall grant Tenant a
credit equal to the amount of such overpayment against the
Rent next coming due in the amount of such difference together
with interest at the Interest Rate accruing from the date of
payment by Tenant until the date such credit is applied.
Adjustments to Percentage Rent payable during the Lease Year
occurring in 2002 shall continue to be governed by Section
3.1(b) of the Lease. Any disputes between Landlord and Tenant
with respect to the calculation of Minimum Rent and/or
Percentage Rent in accordance with this Section 2 shall be
determined pursuant to arbitration in accordance with Schedule
15.4 of the Lease.
(e) For the sake of clarity, any of the provisions of Section
3.1(a) of the Lease relating to the payment of Minimum Rent
during the Lease Years described in clauses (a) and (b) above
(but only to the extent such provisions relate to such Lease
Years) are superseded in their entirety by the provisions of
this Section 2.
3. Payments of Minimum Rent. Section 3.1(a) of the Lease is
hereby amended by deleting the text beginning with the phrase "Minimum Rent
shall be prorated among each Leased Property" through (and including) the
sentence "In no event, however, shall the rent deferral permitted hereunder be
such that Landlord will have insufficient cash flow to service Landlord's
Debt.", and substituting the following therefor:
"Minimum Rent for each of the Leased Properties shall be
prorated pursuant to the percentages set forth next to each
such Leased Property on Exhibit 3.1(a) attached hereto.
Minimum Rent for each Fiscal Year shall be payable in arrears
in twelve (12) equal installments (except as otherwise
provided for herein with respect to
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Lease Years 2001 and 2002), on the eleventh (11th) day of each
calendar month of the Initial Term and each Extended Term (the
"Rent Payment Date"), provided that if such 11th day is not a
Business Day, then the Rent Payment Date shall be the next
preceding Business Day. Minimum Rent shall be paid for the
period of the eleventh (11th) of each month (or, if
applicable, the Commencement Date) through the tenth (10th) of
the next month (or, if applicable, the expiration of the Term)
(each, a "Rental Period"), provided that the first and last
payments of Minimum Rent shall be prorated as to any partial
Rental Period, based on the number of days within the Term
during such Rental Period and the number of days in such
Rental Period. Tenant hereby agrees to make any reasonable
changes with respect to the definition of "Rental Period" as
may be requested in connection with any Landlord's Debt. The
first installment payment of Minimum Rent shall be payable on
March 11, 1999, for the Rental Period beginning with the
Commencement Date and ending March 10, 1999.
Notwithstanding the foregoing or anything
herein that may be construed to the contrary, if the term of
any Ground Lease is scheduled to expire concurrently with, or
prior to, the second anniversary of the scheduled expiration
of the Term of the Lease, the amount of Minimum Rent and
Percentage Rent payable during the period of the Term that
coincides with the final two years of the term of the
applicable Ground Lease shall be adjusted such that the
portion of Minimum Rent and Percentage Rent allocable to the
applicable Ground Leased Property shall be equal to the
greater of (i) such Ground Leased Property's Fair Market
Rental, which unless otherwise mutually agreed to by Landlord
and Tenant shall be determined by the appraisal procedure set
forth in Article XXIV, and (ii) the amount of Minimum Rent and
Percentage Rent that would otherwise be allocated to such
Ground Leased Property determined based on the percentages set
forth on Exhibit 3.1(a) attached hereto.
Notwithstanding the foregoing, for each
Lease Year through the Lease Year expiring December 31, 2003,
to the extent that Available Cash is less than the amount of
Minimum Rent and Percentage Rent, as certified by Tenant
(together with reasonable documentation thereof) and agreed to
by Landlord, the Minimum Rent and Percentage Rent shall
accrue, and the payment thereof (together with interest at the
Interest Rate) shall be deferred to, the earlier of (A)
December 31, 2003 and (B) such date as Available Cash shall be
available, to the extent of such Available Cash (and Available
Cash shall be applied first to interest, then to the accrued
Minimum Rent and then to the accrued Percentage Rent),
provided that the maximum amount of Minimum Rent that may be
deferred under this paragraph shall be fifteen percent (15%)
of the stated Minimum Rent obligation. As used herein,
Available Cash shall be Receipts less Operating Expenses. In
no event, however, shall the rent deferral permitted hereunder
be such that Landlord will have insufficient cash flow to
service Landlord's Debt. Tenant's failure to pay to Landlord
on or prior to December 31,
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2003 any amounts of Minimum Rent and/or Percentage Rent
deferred by Tenant pursuant to the foregoing provisions shall
be an Event of Default hereunder."
4. Payment of Percentage Rent Installments. The first two
sentences of Section 3.1(b)(i) of the Lease are hereby amended and restated in
their entirety as follows:
"In addition to the Minimum Rent payable with respect to the
Leased Property, Tenant shall pay Percentage Rent for each
Lease Year. Percentage Rent shall be payable quarterly in
arrears in four (4) installments, with the installment in
respect of each quarter due and payable on the final day of
the immediately following quarter."
5. 39-Year Property. Schedule 9.1(b) of the Lease is hereby
amended and restated and shall be replaced in its entirety with the following:
SCHEDULE 9.1(b)
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LANDLORD'S RESPONSIBILITY MINIMUM TENANT'S RESPONSIBILITY
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Zero per annum until 12/31/99 and, starting $262,500 per annum until 12/31,99, and
with the Lease Year commencing on $75,625 for the Lease Year commencing on
January 1, 2000, $200,000 per annum, January 1, 2000, which amount shall
which amount shall increase by 5% every increase by 5% per annum thereafter.
five years thereafter.
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6. Authority. Each party hereto represents and warrants that
this Amendment has been duly authorized, executed and delivered on behalf of
such party.
7. Miscellaneous.
(a) The Lease is in full force and effect and,
except as set forth herein, is unmodified.
(b) This Amendment may be executed in any number
of counterparts, each of which where so
executed and delivered shall be an original,
but all of which shall constitute one and
the same instrument.
(c) In all respects, except to the extent that
the context otherwise requires, references
to "this Lease" (and words of similar
import) in the Lease prior to its amendment
hereby shall be deemed to refer to the Lease
as amended hereby and as the same may
hereafter be amended.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed by their duly authorized representatives on this
_____th day of May, 2001, effective as of the day and year first above written.
LANDLORD:
AMERICOLD CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: V.P., Chief Financial Officer
TENANT:
AMERICOLD LOGISTICS, LLC
By: /s/ X. X. Xxxxxxxxx III
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Name: X. X. Xxxxxxxxx III
Title: Chief Financial Officer
