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Exhibit 10.3
FIRST AMENDMENT TO MASTER LEASE AGREEMENT, dated as of March 10,
1999 (this "Amendment"), between URS REAL ESTATE, L.P., a Delaware limited
partnership, and URS LOGISTICS, INC., a Delaware corporation.
W I T N E S E T H:
WHEREAS, the parties hereinabove named are parties to a certain
Master Lease Agreement (the "Lease"), dated as of April 22, 1998 (all
capitalized terms used but not defined herein shall have the meaning given such
terms in the Lease); and
WHEREAS, the parties wish to amend the Lease to better express in
certain respects their agreement with respect to the Lease.
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:
Section 1. Section 1.4 of the Lease is hereby amended and restated
in its entirety to read as follows:
"1.4. Initial Term. The initial term of this Lease (the "Initial
Term") shall commence on the Commencement Date and shall expire on
February 28, 2014, unless otherwise terminated as provided herein."
Section 2. Section 1.5(a) of the Lease is hereby amended and rested
in its entirety to read as follows:
"1.5 Renewal Terms. Provided (i) no Event of Default shall have
occurred and be continuing hereunder or under the Other Leases and (ii)
the tenant under each of the Other Leases shall have exercised its
respective renewal option under the applicable Other Lease to the extent
the same is available, Tenant shall have the right to renew this Lease (as
to all, but not less than all, the Leased Property subject to this Lease
at such time) for two (2) successive five (5) year terms ("Extended
Terms") upon giving written notice to Landlord of each such renewal at
least eighteen (18) months prior to the termination of the then current
Term. During each such Extended Term, all of the terms and conditions of
this Lease shall continue in full force and effect, except that the
Minimum Rent for and during each Extended Term shall be the greater of (i)
the then current fair market rental ("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 Minimum
Rent for the Lease Year immediately preceding the Extended Term plus five
percent (5%). Tenant's failure to exercise its renewal option as to the
first Extended Term shall
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result in the loss of its renewal option as to the second Extended Term.
As used herein, the term "Other Leases" shall refer to, collectively, (i)
that certain Master Lease Agreement, dated as of February 28, 1999,
between Americold Corporation, as landlord, and AmeriCold Logistics, LLC,
as tenant, as amended, (ii) that certain Master Lease Agreement, dated as
of April 22, 1998, between Americold Real Estate, L.P., as landlord, and
Americold Corporation, as tenant, as amended, and (iii) such other Master
Lease Agreements as may be entered into from time to time between Landlord
or its Affiliates and Tenant or its Affiliates."
Section 3. The definition of "Pre-Approved Party" is hereby amended
and restated in its entirety to read as follows:
""Pre-Approved Party" shall mean (i) URS Logistics, Inc., a
Delaware corporation; (ii) Americold Corporation, an Oregon
corporation; (iii) any Person with or into which URS Logistics, Inc.
and/or Americold Corporation is merged on consolidated or to which
URS Logistics, Inc. and/or Americold Corporation transfer all or
substantially all of its or their assets or which succeeds to all or
substantially all of the business of URS Logistics, Inc. and/or
Americold Corporation; (iv) any Person fifty-one percent (51%) or
more owned, directly or indirectly, and controlled by one or more or
more of the Persons identified in clauses (i) - (iii) above; (v) any
Person in which one or more Persons described in clauses (i) - (iv)
above are sole operating partners or managing members; (vi) any
other Person as to which Tenant shall have obtained a Rating
Confirmation; and (vii) any Landlord's Lender that acquires Tenant's
interest in this Lease by foreclosure or any action in lieu
thereof."
Section 4. The definition of the term "Vornado Operating" is hereby
amended and restated in its entirety to read as follows:
""Vornado Operating" shall mean Vornado Operating Company, a
Delaware corporation formerly known as Vornado Operating, Inc."
Section 5. Section 3.1(a) and Section 3.1 (b) of the Lease is hereby
amended and restated in its entirety to read as follows:
"3.1 Rent. Tenant will pay to Landlord, in lawful money of the
United States of America which shall be legal tender for the payment
of public and private debts, at Landlord's address set forth above
or at such other place or to such other person, firms or
corporations as Landlord may designate in writing from time to time,
(i) Minimum Rent (as defined below), and (ii) Percentage Rent;
provided that so long as the Initial Landlord's Debt is outstanding
and Landlord is the "Borrower" thereunder, Minimum Rent and
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Percentage Rent shall be paid in accordance with the Cash Management
Procedures. In addition, Tenant will pay to Landlord or the Person
otherwise entitled thereto all Additional Charges during the Term on
or before the same are delinquent.
(a) Minimum Rent:
(i) For the period commencing on the Commencement Date through
December 31, 2003, the sum of THIRTY SEVEN MILLION SEVEN HUNDRED
TWENTY-FIVE THOUSAND AND 00/100 DOLLARS ($37,725,000.00) per annum.
(ii) For the period commencing on January 1, 2004 through
December 31, 2008, the sum of THIRTY NINE MILLION ONE HUNDRED
EIGHTY-ONE THOUSAND AND 00/100 DOLLARS ($39,181,000.00) per annum.
(iii) For the period commencing on January 1, 2009 through
February 28, 2014, the greater of (x) FORTY ONE MILLION ONE HUNDRED
FORTY THOUSAND AND 00/100 DOLLARS ($41,140,000.00) per annum and (y)
the Fair Market Rental of the Leased Property, which unless
otherwise mutually agreed to by Landlord and Tenant shall be
determined by the appraisal procedure set forth in Article XXIV.
Minimum Rent shall be prorated among each Leased Property pursuant to the
percentages set forth next to each Leased Property on Exhibit 3.1(a) attached
hereto. Minimum Rent for each Fiscal Year shall be payable from the Commencement
Date through (and including) the Rent Payment Date in arrears in twelve (12)
equal installments 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. The first installment payment of Minimum Rent shall be
payable on May 11, 1998, for the Rental Period beginning with the Commencement
Date and ending May 10, 1998.
Notwithstanding the foregoing, for the period commencing with the
date hereof and expiring on the third (3rd) anniversary of the date hereof, to
the extent that Available Cash is less than the amount of Fixed Rent and
Percentage Rent, as certified by Tenant (together with reasonable documentation
thereof) and agreed to by Landlord, the Fixed Rent and Percentage Rent shall
accrue, and the payment thereof (together with interest at the Interest Rate)
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shall be deferred to, the earlier of (A) the third (3rd) anniversary of the
date hereof 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 and then to the accrued Fixed Rent), provided that the maximum amount
of Fixed Rent that may be deferred under this paragraph shall be twenty percent
(20%) of the stated Fixed 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.
(b) Percentage Rent:
(i) Generally; Payment in Installments. 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, on the Rent Payment Date
occurring in April, July, August and January of each Lease Year, in
respect of the quarter ending in the prior month, commencing in April,
1999. Each quarterly installment shall be based on, and accompanied by, an
Officer's Certificate setting forth Tenant's current estimated Receipts
for the Leased Property (on a Leased Property-by-Leased Property basis) on
a cumulative basis for the period commencing with the Lease Year through
the end of the quarter in question, and shall take into account previous
installments paid in respect of such Lease Year.
(ii) Presentation of Certificate and Audit. Not later than the
120th day following the end of each Lease Year, Tenant shall deliver to
Landlord an Officer's Certificate setting forth the Receipts for the
Leased Property (on a Leased Property-by-Leased Property basis) (a) for
the such Lease Year and (b) for each individual calendar quarter during
such Lease Year, together with an audit of such Receipts conducted by a
"Big Six" firm of independent certified public accountants proposed by
Tenant and approved by Landlord (which approval shall not be unreasonably
withheld or delayed). Tenant shall utilize, or cause to be utilized, an
accounting system for the Leased Property in accordance with its usual and
customary practices and in accordance with GAAP, which will accurately
record Receipts for the Leased Property. Tenant shall retain such records,
for at least three (3) years after the expiration of each Lease Year.
(iii) Confirmation of Percentage Rent. Landlord, at its own expense,
except as provided herein below, shall have the right, exercisable by
Notice to Tenant within two (2) years after receipt of the applicable
Officer's Certificate referred to in clause (ii) above, by its accountants
or representatives to audit the information set forth in such Officer's
Certificate and, in connection with such audits, to examine Tenant's books
and records with respect thereto (including supporting data and sales and
excise tax returns).
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(iv) Adjustments of Percentage Rent. If the certificate or audit
described in Section 3.1(b)(ii), or any audit described in Section
3.1(b)(iii), discloses a deficiency in the payment of Percentage Rent and
any differences between the parties are resolved (which, absent the
parties' agreement shall be determined pursuant to arbitration in
accordance with Schedule 15.4), Tenant shall forthwith pay to Landlord the
amount of the deficiency, as finally agreed or determined, together with
interest at the Interest Rate, from the date such payment should have been
made to the date of payment thereof. If such deficiency, as determined or
agreed upon or compromised as aforesaid, is more than four percent (4%) of
the Receipts reported by Tenant for such Lease Year and, as a result,
Landlord did not receive at least ninety-five percent (95%) of the
Percentage Rent payable with respect to such Lease Year, Tenant shall pay
the reasonable cost of such audit and examination. If the certificate or
audit described in Section 3.1(b)(ii), or any audit described in Section
3.1(b)(iii), discloses a overpayment of Percentage Rent and any
differences between the parties are resolved (which, absent the parties'
agreement shall be determined pursuant to arbitration in accordance with
Schedule 15.4), 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, as finally agreed or determined, together with interest at the
Interest Rate accruing from the date of payment by Tenant until the date
such credit is applied. If such credit cannot be made because the Term has
expired prior to application in full thereof, then (provided no Event of
Default has occurred and is continuing and provided Tenant has paid all
amounts required under this Lease), Landlord shall repay the unapplied
balance of such credit to Tenant.
(v) Maximum Adjustments of Percentage Rent. Notwithstanding the
foregoing, in no event shall Tenant be permitted under Section
3.1(b)(iv) a credit or refund in respect of Percentage Rent in excess of
20 percent of the aggregate installments of Percentage Rent paid in
respect of any Lease Year pursuant to Section 3.1(b)(i).
(vi) Confidentiality. Any information obtained by Landlord with
respect to Receipts, Operating Income and Operating Expenses pursuant to
the provisions of this Lease shall be treated as confidential, except that
such information may be (1) disclosed to the extent that it otherwise
becomes public information, (2) disclosed to the extent that Landlord is
advised by counsel that Landlord is required to disclose such information
by subpoena, court order, securities laws and regulations, any other laws
or regulations or stock-exchange requirements, (3) used in any litigation
between the parties (subject to such confidentiality safeguards as Tenant
may request and the courts may impose), (4) disclosed to Landlord's direct
and indirect lenders and investors (and prospective direct and indirect
lenders and investors), and (5) disclosed to the extent permitted in
Landlord's Loan Documents relating to any Landlord's Debt, provided that,
with respect to the disclosures permitted under clause (4),
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Landlord shall obtain the agreement of the Persons to whom disclosure is
made to maintain such information as confidential in accordance with terms
of this Subsection (iv) and in no event shall public or Rule 144A holders
of Landlord's Debt be permitted to receive such information on an
individual Leased Property basis.
(vii) Survival. The obligations of Tenant and Landlord contained in
this Section 3.1 shall survive the expiration or earlier termination of
this Lease."
Section 6. Section 8.1(i) of the Lease is hereby amended and
restated in its entirety to read as follows:
"(i) "For any Material Alteration (other than a Material
Alteration the cost of which one or more Subtenants are obligated to
pay for or reimburse to Tenant and which Tenant reasonably believes
will be so paid or reimbursed in a timely manner), Tenant shall be
obligated to deliver to a Depositary Eligible Collateral in an
amount that, when taken together with any amount then in any reserve
account funded pursuant to the Cash Management Procedures and
permitted to be used in connection with such Material Alteration,
shall be sufficient to pay all of the costs of the Material
Alteration in excess of the Threshold Amount, which Eligible
Collateral shall be held by the Depositary and released to Tenant as
such work progresses in accordance with Section 8.1(j). In addition,
if all Material Alterations (other than a Material Alteration the
cost of which one or more Subtenants are obligated to pay for or
reimburse to Tenant and which Tenant reasonably believes will be so
paid or reimbursed in a timely manner) then being performed exceeds
$15,000,000 (the "Aggregate Threshold Amount"), Tenant shall be
obligated to deliver to the Depositary Eligible Collateral in amount
that, when taken together with (x) any Eligible Collateral
previously delivered under this subsection (i) and (y) any amounts
then in any reserve funded pursuant to the Cash Management
Procedures and permitted to be used in connection with such Material
Alteration, shall be sufficient to pay all of the costs of the
Material Alteration in excess of the Aggregate Threshold Amount,
which Eligible Collateral shall be held by the Depositary and
released to Tenant at such time as the remaining costs of the
Material Alteration are less than the Aggregate Threshold Amount."
Section 7. Section 9.1(b) of the Lease is hereby amended and
restated in its entirety to read as follows:
"(b) Notwithstanding anything herein to the contrary, Landlord
shall promptly make all necessary and appropriate repairs and
replacements to the Leased Property (other than those repairs and
replacements (i) caused by the negligence or wilfull misconduct of
Tenant or any Person claiming by,
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through or under Tenant or (ii) required as a result of Casualty or
Condemnation to the Leased Property) the costs of which are required
to be depreciated under the Internal Revenue Code on a 39-year basis
(or any successor period of depreciation for buildings), provided
that Tenant shall make such repairs or pay such expenditures (as
applicable) to the extent the same exceed, on a cumulative basis,
$1,000,000 per annum, increased 5 percent as of January 1, 2003 and
January 1, 2008. Landlord's obligation pursuant to the prior
sentence, however, shall be subject to prior reasonable notice from
Tenant as to the need to make such repair and replacement. Further,
Landlord may elect that Tenant perform such repair and replacement,
in which event, Landlord shall reimburse or pay to Tenant, within
fifteen (15) days after Tenant's submission to Landlord of
reasonable evidence of the out-of-pocket costs incurred by Tenant in
making such repairs and replacements. Further, Tenant agrees that
(A) it shall expend annually for the repair and replacement of
39-Year Property not less than $4,722,540 for the period from the
Commencement Date through December 31, 1999, increasing by 5%
annually for each succeeding Fiscal Year (such amount, the "Minimum
Tenant's Responsibility"), provided that Tenant shall not be deemed
to have expended any amounts in satisfaction of the Minimum Tenant's
Responsibility until such time as Tenant shall have expended all
amounts required to be spent by Tenant under Section 2.3 of the
Asset Purchase Agreement in connection with which this Lease is
being assigned, dated as of the date hereof, to which Tenant (or its
assignee) is party, (B) to the extent Tenant shall have spent less
than the specified amount in any Lease Year, such unspent amount
shall cumulate and Tenant shall be required to expend the unspent
portion in subsequent Lease Years, and (C) if at the end of the
Term, there shall be any cumulative unspent amounts, Tenant shall
pay such amount to Landlord not later than the end of the Term."
Section 8. Section 15.4 of the Lease is hereby amended and restated
in its entirety to read as follows:
"15.4 Modifications to Secure Financing. If any Superior Party
or prospective Superior Party shall request modifications of this
Lease as a condition to the provision, continuance or renewal of any
such financing, Tenant will not unreasonably withhold, delay or
defer its consent thereto, provided that (i) either such
modifications do not materially increase the obligations of Tenant
hereunder or materially adversely affect Tenant's rights under this
Lease or (ii) if such modifications would materially increase the
obligations of Tenant hereunder or materially adversely affect
Tenant's rights under this Lease, then Landlord shall compensate
Tenant for the same. Disputes as between Landlord and Tenant
regarding whether a proposed modification would materially increase
the obligations of Tenant hereunder or
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materially adversely affect Tenant's rights under this Lease, and
the compensation that would be payable to Tenant as a result thereof
shall be determined by arbitration in accordance with the terms of
Schedule 15.4 hereto."
Section 9. Section 25.1 of the Lease is hereby amended and restated
in its entirety to read as follows:
"25.1 General REIT Provisions.
25.1.1 REIT Requirements. Tenant understands that Landlord or
an Affiliate of Landlord intends to elect to qualify as a real estate
investment trust ("REIT"). Accordingly, unless otherwise notified by
Landlord, the following requirements (the "REIT Requirements") must be
satisfied:
(i) The average of the adjusted tax bases of Landlord's personal
property leased to Tenant under a lease at the beginning and end of a
calendar year cannot exceed 15% of the average of the aggregate adjusted
tax bases of all of Landlord's property that is leased to Tenant under
such lease at the beginning and end of such calendar year.
(ii) Tenant cannot sublet the property leased to it by Landlord, or
enter into any other arrangement, if such sublet or other arrangement
would cause all or a portion of the amounts paid by Tenant to Landlord
hereunder to fail to qualify as "rents from real property" within the
meaning of Section 856(d) of the Code.
(iii) Tenant cannot sublease the property leased to it by Landlord
to, or enter into any similar arrangement with, any person in which
Landlord owns, directly or indirectly, a 10% or more interest, within the
meaning of Section 856(d)(2)(B) of the Code.
(iv) Landlord cannot own, directly or indirectly, a 10% or more
interest in Tenant, within the meaning of Section 856(d)(2)(B) of the
Code.
25.1.2 Satisfaction of REIT Requirements. Tenant agrees, and
agrees to use reasonable efforts to cause its Affiliates, to use their
best efforts to permit the REIT Requirements to be satisfied. Tenant
agrees, and agrees to use reasonable efforts to cause its Affiliates, to
cooperate in good faith with Landlord or to ensure that the REIT
Requirements are satisfied, including providing Landlord with information
about the ownership of Tenant, and its Affiliates to the extent that such
information is reasonably available. In addition, Tenant agrees, and
agrees to cause its Affiliates, to cooperate with Landlord in connection
with any additional requirements relating to Landlord's qualification as a
REIT arising from and after the
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date hereof. Immediately after becoming aware that the REIT Requirements
are not, or will not be, satisfied, Tenant shall notify Landlord of such
noncompliance.
Section 10. Section 29.1 of the Lease is hereby amended and restated
in its entirety to read as follows:
"29.1 Landlord's Option to Purchase Tenant's Personal Property.
Tenant hereby grants Landlord the option to purchase all of the equipment
and personal property (tangible and intangible) that is employed by Tenant
in connection with the use and operation of each of the Properties, and
the business conducted thereat, including any interest of Tenant in the
warehousing and customer contracts (to the extent the same is assignable)
and the interest of Tenant in any equipment leases and the like. Such
option shall be exercisable by Landlord at any time prior to the date of
expiration or earlier termination of this Lease in respect of a Property
and the conveyance in respect thereof shall be consummated (and the
payment of the purchase price therefor made) concurrently with such
expiration or earlier termination. The purchase price payable for Tenant's
Personalty shall be the Fair Market Value thereof, determined in
accordance with the terms of Article XXIV hereof (as adjusted to the
extent required to reflect that the subject of the appraisal is Tenant's
Personalty rather than a Leased Property). Tenant agrees to cooperate with
Landlord in effecting the smooth and orderly transfer of Tenant's
Personalty in the event of Landlord's exercise of the Purchase Option.
Tenant's Personalty shall be conveyed free and clear of all liens,
encumbrances or rights of other parties, except as may have been disclosed
to the appraisers in the process of establishing the Fair Market Value
thereof."
Section 11. Exhibit 3.1(b) "Calculation of Percentage Rent" is
hereby amended and restated in its entirety to read as follows:
"Percentage Rent, with respect to each Lease Year, shall be
calculated annually as follows:
(i) for the period from the Commencement Date through December 31,
2003, the product of (a) 31% times (ii) all Receipts for the
applicable Lease Year in excess of the Breakpoint;
(ii) for the period from January 1, 2004 through December 31, 2008,
the product of (a) 33.15% times (ii) all Receipts for the
applicable Lease Year in excess of $Breakpoint; and
(iii) for the period from January 1, 2009 through February 28, 2014,
the product of (a) 34.25% times (ii) all Receipts for the
applicable Lease Year in excess of the Breakpoint.
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As used herein, the "Breakpoint" with respect to any Lease Year shall be
$121,694,000. The Breakpoint shall be adjusted to account for the termination of
this Lease with respect to any one or more of the Leased Properties in
accordance with the terms of this Lease on a pro rata basis among each Leased
Property based on the percentages set forth next to each Leased Property in
Exhibit 3.1(a) attached to this Lease.
Section 12. The Lease is hereby amended by adding the following
Schedule 15.4 thereto:
"Schedule 15.4
Arbitration Procedures
Arbitration shall be held in the city of Atlanta, Georgia in accordance with the
rules of the American Arbitration Association then in effect. There shall be one
arbitrator appointed in accordance with those rules. As part of the award, the
arbitrator shall make a fair allocation between the parties of the fee and
expenses of the American Arbitration Association and the cost of any transcript,
taking into account the merits of their claims and defenses. The arbitration
shall commence within thirty (30) days after demand for arbitration is made by a
party hereto. The arbitrator shall render his/her award within thirty (30) days
after the completion of the arbitration and the arbitration shall be held on
consecutive Business Days. Failure by either party to submit to arbitration as
required under this Lease shall result in the arbitrator ruling in favor of the
other party is such other party has submitted to arbitration under this Lease.
Judgement may be entered on the arbitrator's award in any court having
jurisdiction, and the parties irrevocably consent to the jurisdiction of the
Georgia courts for that purpose. The arbitrator may grant injunctive or other
equitable relief."
Section 13. Each party hereto represents and warrants that this
Amendment has been duly authorized, executed and delivered on behalf of such
party.
Section 14. The Lease is in full force and effect and, except as set
forth herein, is unmodified.
Section 15. 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.
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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 10th day of
March 1999, effective as of the day and year first above written.
URS REAL ESTATE, L.P.
By: URS Realty, Inc., its general
partner
By: /s/ Xxxxx Xxxxxxxx
--------------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President and Chief
Financial Officer
URS LOGISTICS, INC.
By: /s/ Xxxxxxxxx X. Xxxxxxxxx III
------------------------------------
Name: Xxxxxxxxx X. Xxxxxxxxx III
Title: Senior Vice President
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