Exhibit 10.1
SECURITIES PURCHASE AGREEMENT, dated as of November 4, 2004 (this
"Agreement"), by and among Vornado Crescent Logistics Operating Partnership, a
Delaware general partnership ("Seller"), Vornado Operating L.P., a Delaware
limited partnership ("VOO LP"), Vornado Operating Company, a Delaware
corporation and the general partner of VOO LP ("VOO"), COPI Cold Storage L.L.C.,
a Delaware limited liability company ("COPI"), ART AL Holding LLC, a Delaware
limited liability company ("Buyer"), Americold Realty Trust, a Maryland real
estate investment trust and the parent of Buyer ("Realco"), and Vornado Realty
L.P., a Delaware limited partnership ("VNO LP").
RECITALS
WHEREAS, Seller owns all of the outstanding membership interest in
AmeriCold Logistics, LLC ("OpCo");
WHEREAS, OpCo currently owes VOO LP $6,645,106 (the "OpCo-VOO LP
Payable") and VOO LP currently owes VNO LP $26,759,633 (the "VOO LP-VNO LP
Payable") under a $75 million revolving line of credit (the "Line of Credit");
WHEREAS, Buyer desires to purchase from Seller, and Seller desires
to sell to the Buyer, Seller's membership interest in OpCo (the "Membership
Interest") on the terms set forth herein;
WHEREAS, VOO LP and COPI (as a condition to approving Seller's sale
of the Membership Interest) desire to assure that concurrently with that sale
Seller will distribute $47,625,000 of the proceeds to its partners, and VOO LP
(as an additional condition to approving that sale) desires to assure that
concurrently with that sale (a) Buyer will cause OpCo to repay the OpCo-VOO LP
Payable and (b) VNO LP will, in order to facilitate a liquidation of VOO if a
decision is made to liquidate VOO, agree to assume unknown liabilities of VOO LP
and VOO in certain circumstances as further described in this Agreement;
WHEREAS, VNO LP (as a condition to approving Buyer's purchase of the
Membership Interest) desires to assure that concurrently with that purchase
Seller will distribute $47,625,000 of the proceeds to its partners and VOO LP
will use its then available cash to repay the VOO LP-VNO LP Payable; and
WHEREAS, Buyer, Realco and VNO LP desire to treat certain other
amounts owed by OpCo to Realco subsidiaries and VNO LP as contemplated in this
agreement;
NOW, THEREFORE, the parties hereto hereby agree as follows:
ARTICLE I.
PURCHASE AND SALE; OTHER CLOSING TRANSACTIONS
Section 1.1 Purchase and Sale. Concurrently with the execution and
delivery hereof, (a) Seller hereby sells, assigns, transfers and delivers to
Buyer the Membership
Interest and (b) Buyer is paying for that Membership Interest by transferring
$47,700,000 in cash to an account designated by Seller prior to the time of
execution and delivery hereof. Seller hereby acknowledges receipt of that cash.
From time to time after execution and delivery hereof, Seller shall execute such
additional documents and take such additional actions as Buyer may reasonably
request to further perfect the sale, assignment, transfer and delivery
contemplated by the preceding sentence.
Section 1.2 Distribution of Proceeds. Immediately upon receipt of
the purchase price for the Membership Interest as contemplated by Section 1.1,
Seller shall distribute 60% of $47,625,000 to VOO LP and 40% of $47,625,000 to
COPI.
Section 1.3 Repayment of Payables. Immediately upon acquiring the
Membership Interest as contemplated by Section 1.1, (a) Buyer shall cause OpCo
to repay the OpCo-VOO LP Payable in full, (b) VOO LP shall repay the VOO LP-VNO
LP Payable in full and (c) the parties hereto agree that the Line of Credit
shall, without any additional action by anyone, automatically terminate and
neither of the parties to the Line of Credit shall have any further obligations
thereunder (other than VOO LP's obligation to repay the VOO LP-VNO LP Payable in
full as contemplated by clause (b) of this Section 1.3).
Section 1.4 Treatment of Other Owed Amounts. Effective upon
acquisition of the Membership Interest as contemplated by Section 1.1, (a) Buyer
shall cause OpCo to repay $2,340,285 that it owes to VNO LP and (b) any amount
representing deferred rent in excess of $8,337,181 that OpCo previously owed
subsidiaries of Realco shall be forgiven.
Section 1.5 Closing. As contemplated by the foregoing, the purchase
and sale of the Membership Interest contemplated by Section 1.1 will occur
simultaneously with the execution and delivery hereof and the distribution of
proceeds, repayment of payables and forgiveness of owed amounts contemplated by
Sections 1.2, 1.3 and 1.4 will occur immediately thereafter.
Section 1.6 Dissolution of Seller. VOO LP and COPI agree, as soon as
possible after consummation of the transactions contemplated by Sections 1.1 and
1.2 (and in any event by no later than November 30, 2004), to dissolve Seller.
ARTICLE II.
REPRESENTATIONS AND WARRANTIES OF THE PARTIES
Each party represents and warrants to the other parties as of the date hereof
that:
Section 2.1 Organization; Qualification. It is an entity duly
organized, validly existing and in good standing under the laws of its state of
organization and has the requisite power and authority to own its assets and
properties and carry on its business as is now being conducted.
Section 2.2 Authority. It has the power and authority to execute and
deliver this Agreement and to consummate the transactions contemplated hereby.
The execution and
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delivery by it of this Agreement and the consummation by it of the transactions
contemplated hereby have been duly authorized by all requisite action on its
part. This Agreement has been duly executed and delivered by it and constitutes
a valid and binding agreement of it, enforceable against it in accordance with
its terms.
Section 2.3 No Consents. Neither the execution and delivery by it of
this Agreement nor the consummation by it of the transactions contemplated
hereby will: (a) conflict with or result in any breach of any provision of its
organizational documents; (b) require any consent, approval, authorization or
permit that has not already been obtained of, or filing that has not already
been made with, or notification that has not already been made to, any
governmental entity or other person, (c) result in a default (or give rise to
any right of termination, cancellation or acceleration) under the terms of any
agreement or other instrument to which it is a party, or by which it may be
bound, or to which any of its assets may be subject, or (d) violate any order,
writ, injunction, decree, statute, rule or regulation applicable to it.
ARTICLE III.
ADDITIONAL REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer, Realco and VNO LP as of the date hereof
that:
Section 3.1 Capitalization and Other Matters. The Membership
Interest is the only equity interest of any nature that exists in OpCo, and no
person has any right to acquire additional equity interest in OpCo. Immediately
prior to the execution and delivery of this Agreement, Seller owned,
beneficially and of record, the Membership Interest free and clear of any
encumbrances and, upon execution and delivery of this Agreement, Buyer is
acquiring the Membership Interest free and clear of any encumbrances other than
those that Buyer may itself create.
Section 3.2 SEC Filings; No Material Adverse Changes. The reports on
Form 10-K, Form 10-Q and Form 8-K filed by VOO since March 1, 2004, insofar as
they describe Seller and OpCo and their respective businesses, financial
condition and results of operations, did not contain any untrue statements of
material fact or omit to state material facts required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading. Except as may have been disclosed to
Buyer, since June 30, 2004 there have been no adverse changes in the business,
financial condition or results of operations of OpCo other than those that such
reports disclose have occurred or may occur and those that are not, individually
or in the aggregate, material.
Section 3.3 Financial Statements. The financial statements of Seller
included in VOO's report on Form 10-K for the year ended December 31, 2003 were
prepared in accordance with accounting principles generally accepted in the
United States of America applied on a consistent basis and present fairly, in
all material respects, the financial position, results of operations and cash
flows of Seller as of December 31, 2003 and 2002 and for the years ended
December 31, 2003, 2002 and 2001. The financial information about OpCo included
in VOO's Form 10-Q for the quarter ended June 30, 2004 was derived from
financial statements of OpCo prepared in accordance with accounting principles
generally accepted in
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the United States of America applied on a consistent basis and those financial
statements, copies of which have been delivered to Buyer, present fairly, in all
material respects, the financial position, results of operations and cash flows
of OpCo as of and for the six months ended June 30, 2004 and 2003.
Section 3.4 Undisclosed Liabilities. OpCo does not have any
liabilities, commitments or obligations of any kind except for (a) those
reflected or reserved against or described in the financial statements or
reports referred to earlier in this Article and (b) those which are not,
individually or in the aggregate, material to OpCo's business, financial
condition or results of operations.
ARTICLE IV.
ADDITIONAL BUYER AND REALCO OBLIGATIONS
Section 4.1 Representation about Other Sale Transactions. Buyer and
Realco jointly and severally represent and warrant to Seller, VOO LP and COPI as
of the date hereof that (a) Buyer and its affiliates have fully informed Seller
of the terms on which a third party has agreed to purchase a minority interest
in Realco (which at the time of that purchase will indirectly own OpCo) and (b)
based on the methodology employed by that third party in valuing its investment
in Realco, the value attributable to OpCo (in such third-party transaction) with
OpCo's current business, assets and liabilities is less than the amount Buyer is
paying for the Membership Interest in OpCo pursuant to this Agreement.
Section 4.2 Assumption of Liabilities. Effective upon closing of the
purchase and sale contemplated by Section 1.1, Buyer hereby assumes all
liabilities of any nature, whether accrued, absolute, contingent or otherwise,
of Seller, in its capacity as the sole member of OpCo, and Seller's partners, in
their capacities as partners in the sole member of OpCo, arising out of OpCo's
business, operations, assets or liabilities (collectively, the "Assumed
Liabilities").
Section 4.3 Indemnification. Buyer shall indemnify, defend and hold
harmless Seller and its partners from and against (a) any and all Assumed
Liabilities and (b) any and all costs of defending against, settling or paying
judgments on any pending or threatened proceedings to the extent arising out of
or based upon any Assumed Liabilities.
Section 4.4 Guaranty. Realco hereby unconditionally guarantees the
performance of all obligations of Buyer set forth in this agreement.
ARTICLE V.
TREATMENT OF UNKNOWN LIABILITIES IF VOO LIQUIDATES
If a decision is made to liquidate VOO and VOO files a certificate
of dissolution on or prior to March 31, 2005, VOO LP, VOO and VNO LP agree as
follows in order to facilitate that liquidation:
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Section 5.1 Payment or Provision for All Known Liabilities of VOO
and VOO LP. VOO and VOO LP will pay or make reasonable provision for all
liabilities of VOO and VOO LP actually known to them and non-contingent at the
time of that filing.
Section 5.2 Assumption of Unknown Liabilities of VOO and VOO LP.
Effective upon and contingent on the filing of that certificate on or prior to
that date, VNO LP hereby assumes all liabilities of any nature of VOO or VOO LP
other than those actually known and non-contingent to VOO or VOO LP at the time
of the filing. In addition to and without limiting the generality of the
foregoing, VNO LP shall indemnify, defend and hold harmless VOO and VOO LP
against all liabilities of any nature of VOO or VOO LP other than those actually
known and non-contingent to VOO or VOO LP at the time of the filing. If there is
a dispute between VOO and VOO LP, on the one hand, and VNO LP, on the other
hand, as to whether a liability was actually known at the time of filing, the
determination of VOO and VOO LP shall be final and conclusive absent manifest
error.
ARTICLE VI.
TREATMENT OF UNKNOWN LIABILITIES IF SELLER LIQUIDATES
If Seller liquidates as contemplated by Section 1.6 and files a
certificate of cancellation on or prior to March 31, 2005, Seller and Buyer
agree as follows in order to facilitate that liquidation:
Section 6.1 Payment or Provision for All Known Liabilities of
Seller. Seller will pay or make reasonable provision for all liabilities of
Seller actually known to Seller at the time of that filing.
Section 6.2 Assumption of Unknown Liabilities of Seller. Effective
upon and contingent on the filing of that certificate on or prior to that date,
Buyer hereby assumes all liabilities of any nature of Seller other than those
actually known to Seller at the time of the filing. In addition to and without
limiting the generality of the foregoing, Buyer shall indemnify, defend and hold
harmless Seller against all liabilities of any nature of Seller other than those
actually known to Seller at the time of the filing. If there is a dispute
between Seller and Buyer as to whether a liability was actually known at the
time of filing, the determination of Seller shall be final and conclusive absent
manifest error.
ARTICLE VII.
MISCELLANEOUS
Section 7.1 Survival. None of the representations or warranties
contained in Article II or Article III will survive the closing of the
transactions contemplated by Article I.
Section 7.2 Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication, as follows:
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if to Seller: Vornado Crescent Logistics Operating Partnership
c/o Vornado Operating Company
000 Xxxxx 0 Xxxx
Xxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxx
Facsimile: 000-000-0000
if to VOO LP: Vornado Operating L.P.
c/o Vornado Operating Company
000 Xxxxx 0 Xxxx
Xxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxx
Facsimile: 000-000-0000
if to VOO: Vornado Operating Company
000 Xxxxx 0 Xxxx
Xxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxx
Facsimile: 000-000-0000
if to COPI: COPI Cold Storage L.L.C.
c/o Crescent Real Estate Equities Company
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
Attn: Xxxxxxx X. Xxxxxxx
Facsimile: 000-000-0000
if to Buyer: ART AL Holding LLC
c/o Americold Realty Trust
00 Xxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxxxxxx
Facsimile: 000-000-0000
if to Realco: Americold Realty Trust
00 Xxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxxxxxx
Facsimile: 000-000-0000
if to VNO LP: Vornado Realty L.P.
c/o Vornado Realty Trust
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxx
Facsimile: 000-000-0000
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or to such other person or address as any party shall specify by notice in
writing to the other parties.
Section 7.3 Governing Law. This Agreement shall be governed by and
construed in accordance with the provisions of New York law applicable to
contracts to be performed in New York.
Section 7.4 Waiver of Jury Trial. To the fullest extent permitted by
applicable law, each party hereby irrevocably waives any right to a trial by
jury in any proceeding brought with respect to this Agreement or the
transactions contemplated hereby.
Section 7.5 Consent to Jurisdiction. Each party irrevocably submits
to the exclusive jurisdiction of the federal and state courts located in the
State of New York in any action, suit or proceeding arising out of or relating
to this Agreement or any of the transactions contemplated hereby and agrees that
it will not bring any such actions, suits or proceedings in any other court.
Each party hereby irrevocably waives, to the fullest extent permitted by law,
any objection that it may now or hereafter have to the laying of venue of any
such action, suit or proceeding brought in such a court and any claim that any
such action, suit or proceeding brought in such a court has been brought in an
inconvenient forum.
Section 7.6 Descriptive Headings. The descriptive headings herein
are inserted for convenience of reference only and shall in no way be used to
interpret any provisions of this Agreement.
Section 7.7 Counterparts. This Agreement may be signed in
counterparts, each of which when so executed will be deemed an original and all
of which, taken together, will constitute one and the same agreement.
Section 7.8 Assignment. Neither this Agreement nor any of the rights
or obligations hereunder may be assigned or delegated by any of the parties
hereto without the prior written consent of the other parties. Subject to the
preceding sentence, this Agreement will be binding upon, inure to the benefit of
and be enforceable by the parties and their respective successors and permitted
assigns.
Section 7.9 Entire Agreement. This Agreement constitutes the entire
agreement among the parties with respect to the subject matter hereof and
supersedes all prior communications, understandings and agreements among the
parties hereto relating to such subject matter.
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IN WITNESS WHEREOF, each of the undersigned has caused this
Agreement to be duly signed as of the date first above written.
VORNADO CRESCENT LOGISTICS OPERATING PARTNERSHIP
By: Vornado Operating LP, as General Partner,
By: Vornado Operating Company, as General Partner,
By: /s/ Xxxxxx Xxxxxx
------------------------------------------------
Name: Xxxxxx Xxxxxx
Title: Executive Vice President and
Chief Financial Officer
By: COPI COLD STORAGE L.L.C., as General Partner,
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President, Crescent Operating, Inc.,
its sole member
VORNADO OPERATING L.P.
By: Vornado Operating Company, as General Partner,
By: /s/ Xxxxxx Xxxxxx
------------------------------------------------
Name: Xxxxxx Xxxxxx
Title: Executive Vice President and
Chief Financial Officer
VORNADO OPERATING COMPANY
By: /s/ Xxxxxx Xxxxxx
------------------------------------------------
Name: Xxxxxx Xxxxxx
Title: Executive Vice President and
Chief Financial Officer
COPI COLD STORAGE L.L.C.
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President, Crescent Operating, Inc.,
its sole member
ART AL HOLDING LLC
By: Americold Realty Trust
By: /s/ Xxxxxx Xxxxxx
------------------------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
AMERICOLD REALTY TRUST
By: /s/ Xxxxxx Xxxxxx
------------------------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
VORNADO REALTY L.P.
By: Vornado Realty Trust, as General Partner,
By: /s/ Xxxxxx Xxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxx
Title: Executive Vice President --
Finance and Administration
and Chief Financial Officer
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