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Exhibit 10.10(A)
SECOND AMENDMENT TO MASTER LEASE AGREEMENT, effective as of
the 22nd day of February, 2001 (this "Amendment"), between AMERICOLD REAL ESTATE
, L.P., a Delaware limited partnership ("Landlord"), and AMERICOLD LOGISTICS,
LLC, a Delaware limited liability company ("Tenant").
W I T N E S E T H:
WHEREAS, Americold Corporation, an Oregon corporation
("Americold"), and Landlord are parties to a certain Master Lease Agreement,
dated as of April 22, 1998, as amended by that certain First Amendment to Master
Lease Agreement, dated as of March 10, 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.
2. Minimum Rent Payments in Arrears. Section
3.1(a) of the Lease is hereby amended by deleting the text
following clause (a)(iii) thereof, 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 or to the extent that such rent deferral is
not permitted under the terms of the Initial 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 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
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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 May 11, 1998, for the Rental Period
beginning with the Commencement Date and ending May 10, 1998.
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
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) 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
Fixed Rent and then to the accrued Percentage Rent), provided
that the maximum amount of Fixed Rent that may be deferred
under this paragraph shall be fifteen percent (15%) 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 or to the extent that such rent deferral is
not permitted under the terms of the Initial Landlord's Debt.
Tenant's failure to pay to Landlord on or prior to December
31, 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."
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3. 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."
4. Section 9.1(b). 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, 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, (x) $3,000,000 per annum for the period from the
Commencement Date through December 31, 1999, and (y)
$4,100,000 per annum, thereafter, increased 5 percent every
five years thereafter. 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 $3,641,654 for the period from the
Commencement Date through December 31, 1999, and $2,723,737
for the period from January 1, 2000 through December 31, 2000,
increasing by 5% annually for each succeeding Fiscal Year
thereafter (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 March 10,
1999, 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."
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5. Authority. Each party hereto represents and warrants that
this Amendment has been duly authorized, executed and delivered on behalf of
such party.
6. 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 REAL ESTATE, L.P.
By: Americold Realty, Inc., its general
partner
By: /s/ Xxxxxxx X. Xxxxx
____________________________________
Name: Xxxxxxx X. Xxxxx
Title: V.P., Chief Financial Officer
TENANT:
AMERICOLD LOGISTICS, LLC
By: /s/ X. X. Xxxxxxxxx III
____________________________________
Name: X. X. Xxxxxxxxx III
Title: Chief Financial Officer
