<PAGE> 1
EXHIBIT INDEX ON PAGE 14
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended: MARCH 31, 2000
------------------
or
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from to
----------- --------------
Commission File Number: 001-14525
---------
VORNADO OPERATING COMPANY
- --------------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
DELAWARE 22-3569068
- --------------------------------------------- -------------------------------
(State or other jurisdiction of incorporation (I.R.S. Employer
or organization) Identification Number)
PARK 80 WEST, PLAZA II, SADDLE BROOK, NEW JERSEY 07663
- ---------------------------------------------------------- --------------------
(Address of principal executive offices) (Zip Code)
(201) 587-1000
- --------------------------------------------------------------------------------
(Registrant's telephone number, including area code)
N/A
- --------------------------------------------------------------------------------
(Former name, former address and former fiscal year, if changed since last
report)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. [X] Yes [ ] No
As of May 1, 2000 there were 4,068,665 shares of the registrant's common stock,
par value $.01 per share, outstanding.
Page 1
<PAGE> 2
INDEX
<TABLE>
<CAPTION>
PART I. FINANCIAL INFORMATION:
- ------- ----------------------
Item 1. Financial Statements: Page Number
------- --------------------- -----------
<S> <C>
Consolidated Balance Sheets as of March 31, 2000 and
December 31, 1999......................................................... 3
Consolidated Statements of Operations for the Three Months
Ended March 31, 2000 and March 31, 1999................................... 4
Consolidated Statements of Cash Flows for the Three Months
Ended March 31, 2000 and March 31, 1999................................... 5
Notes to Consolidated Financial Statements................................ 6
Item 2. Management's Discussion and Analysis of Financial Condition
and Results of Operations................................................. 9
Item 3. Quantitative and Qualitative Disclosures About Market Risk................ 11
PART II. OTHER INFORMATION:
- -------- ------------------
Item 1. Legal Proceedings......................................................... 12
Item 6. Exhibits and Reports on Form 8-K.......................................... 12
Signatures .......................................................................... 13
Exhibit Index ......................................................................... 14
</TABLE>
Page 2
<PAGE> 3
PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
VORNADO OPERATING COMPANY
CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
MARCH 31, DECEMBER 31,
2000 1999
--------------- -------------
ASSETS
- ------
<S> <C> <C>
Cash and cash equivalents................................................................. $ 2,441,203 $ 3,257,870
Investment in AmeriCold Logistics......................................................... 18,349,070 17,272,491
Investment in Transportal Network. ....................................................... -- --
Prepaid expenses.......................................................................... 531,306 302,345
--------------- -------------
$ 21,321,579 $ 20,832,706
=============== =============
LIABILITIES AND STOCKHOLDERS' EQUITY
- ------------------------------------
Note payable to Vornado Realty Trust...................................................... $ 10,586,896 $ 4,586,896
Due to Vornado Realty Trust............................................................... 81,004 90,000
Accrued expenses.......................................................................... 848,321 216,956
--------------- -------------
Total liabilities.................................................................... 11,516,221 4,893,852
--------------- -------------
Minority interest........................................................................ 974,401 1,581,765
-------------- -------------
Commitments and contingencies
Stockholders' equity:
Common stock: par value $.01 per share; authorized, 40,000,000 shares; issued and
outstanding, 4,068,580 and 4,068,310 shares.......................................... 40,686 40,683
Additional paid-in capital................................................................ 22,460,652 22,459,160
Deficit................................................................................... (13,670,381) (8,142,754)
---------------- --------------
Total stockholders' equity........................................................... 8,830,957 14,357,089
--------------- -------------
$ 21,321,579 $ 20,832,706
=============== =============
</TABLE>
See notes to consolidated financial statements.
Page 3
<PAGE> 4
VORNADO OPERATING COMPANY
CONSOLIDATED STATEMENTS OF OPERATIONS
<TABLE>
<CAPTION>
FOR THE THREE MONTHS ENDED MARCH 31,
--------------------------------------------
2000 1999
-------------- --------------
<S> <C> <C>
Revenues:
Interest income................................. $ 41,778 $ 178,804
-------------- --------------
Expenses:
General and administrative...................... 937,349 189,733
Organization costs.............................. -- 94,559
-------------- --------------
Total expenses....................................... 937,349 284,292
-------------- --------------
(895,571) (105,488)
Loss from investment in AmeriCold Logistics.......... (3,738,000) (74,600)
Loss from investment in Transportal Network.......... (1,185,421) --
Interest and debt expense to Vornado Realty Trust.... (316,000) (263,505)
Gain on sale of investment in Charles E. Smith
Commercial Realty L.P.............................. -- 280,000
-------------- --------------
Loss before income tax benefit and
minority interest............................... (6,134,992) (163,593)
Income tax benefit................................... -- --
-------------- --------------
Loss before minority interest........................ (6,134,992) (163,593)
Minority interest.................................... 607,364 16,196
-------------- --------------
Net loss............................................. $ (5,527,628) $ (147,397)
=============== ==============
Net loss per share -- basic and diluted.............. $ (1.36) $ (.04)
============== =============
</TABLE>
See notes to consolidated financial statements.
Page 4
<PAGE> 5
VORNADO OPERATING COMPANY
CONSOLIDATED STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
FOR THE THREE MONTHS ENDED MARCH 31,
-----------------------------------------------------
2000 1999
----------------------- --------------------------
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net loss................................................ $ (5,527,628) $ (147,397)
Adjustments to reconcile net loss to net cash used in
operations:
Minority interest................................... (607,364) (16,196)
Loss from investment in AmeriCold Logistics......... 3,738,000 74,600
Loss from investment in Transportal Network......... 1,185,421 --
Non-cash compensation expense (income).............. 652,734 (25,159)
Gain on sale of investment in Charles E. Smith
Commercial Realty L.P. ........................... -- (280,000)
Changes in operating assets and liabilities:
Prepaid expenses.................................... (228,961) 43,192
Accrued expenses.................................... (21,369) 25,417
Due to Vornado Realty Trust......................... (8,996) (43,770)
----------------- ----------------
Net cash used in operating activities........................ (818,163) (369,313)
----------------- ----------------
CASH FLOWS FROM INVESTING ACTIVITIES:
Investment in AmeriCold Logistics....................... (6,000,000) (23,233,621)
Proceeds from sale of Charles E. Smith
Commercial Realty L.P. ............................... -- 13,200,000
---------------- ----------------
Net cash used in investing activities........................ (6,000,000) (10,033,621)
----------------- ----------------
CASH FLOWS FROM FINANCING ACTIVITIES:
Proceeds from borrowings................................ 6,000,000 18,586,896
Other................................................... 1,496 --
---------------- ----------------
Net cash provided by financing activities.................... 6,001,496 18,586,896
---------------- ----------------
Net (decrease) increase in cash and cash equivalents......... (816,667) 8,183,962
Cash and cash equivalents at beginning of period............. 3,257,870 11,831,561
---------------- ----------------
Cash and cash equivalents at end of period ................. $ 2,441,203 $ 20,015,523
================ ===============
NON-CASH TRANSACTIONS:
Non-cash compensation expenses (income) ............... $ 652,734 $ (25,159)
================ ===============
</TABLE>
See notes to consolidated financial statements.
Page 5
<PAGE> 6
VORNADO OPERATING COMPANY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. ORGANIZATION
Vornado Operating Company (the "Company") holds its assets and conducts
its business through Vornado Operating L.P., a Delaware limited partnership
("Company L.P."). The Company is the sole general partner of, and as of March
31, 2000 owned a 90.1% partnership interest in, Company L.P. All references to
the "Company" refer to Vornado Operating Company and its subsidiaries including
the Company L.P.
2. BASIS OF PRESENTATION
The consolidated balance sheet as of March 31, 2000, the consolidated
statements of operations for the three months ended March 31, 2000 and March 31,
1999 and the consolidated statements of changes in cash flows for the three
months ended March 31, 2000 and March 31, 1999 are unaudited. In the opinion of
management, all adjustments (which include only normal recurring adjustments)
necessary to present fairly the financial position, results of operations and
changes in cash flows have been made. Certain information and footnote
disclosures normally included in financial statements prepared in accordance
with generally accepted accounting principles have been condensed or omitted.
These condensed consolidated financial statements should be read in conjunction
with the consolidated financial statements and notes thereto included in the
Company's annual report on Form 10-K for the year ended December 31, 1999 as
filed with the Securities and Exchange Commission. The results of operations for
the three months ended March 31, 2000 are not necessarily indicative of the
operating results for the full year.
The accompanying consolidated financial statements include the accounts
of Vornado Operating Company and Company L.P. All significant intercompany
amounts have been eliminated.
Management has made estimates and assumptions that affect the reported
amounts of assets and liabilities at the date of the financial statements and
the reported amounts of revenues and expenses during the reporting periods.
Actual results could differ from those estimates.
3. INVESTMENTS IN PARTNERSHIPS
The Company's investments in partnerships and loss recognized from such
investments are as follows:
<TABLE>
<CAPTION>
Investments in Partnerships
---------------------------------------
March 31, 2000 December 31, 1999
----------------- ----------------
<S> <C> <C>
AmeriCold Logistics (60% interest)......... $ 18,349,070 $ 17,272,491
Transportal Network(1)..................... -- --
--------------- ----------------
$ 18,349,070 $ 17,272,491
=============== ================
Loss from Investments in Partnerships
---------------------------------------
For The Three Months Ended March 31,
---------------------------------------
2000 1999
----------------- ----------------
AmeriCold Logistics (60% interest)......... $ (3,738,000) $ (74,600)
Transportal Network(1)..................... (1,185,421) --
----------------- ----------------
$ (4,923,421) $ (74,600)
================= ================
</TABLE>
Page 6
<PAGE> 7
VORNADO OPERATING COMPANY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (CONTINUED)
The following condensed operating data relates to AmeriCold Logistics
(100%):
<TABLE>
<CAPTION>
For the Period
Three Months March 11, 1999
Ended March 31, (Acquisition Date) to
2000 March 31, 1999
---------------- ----------------
<S> <C> <C>
Revenue.................... $ 164,276,000 $ 38,547,000
================ ================
Operating Income........... $ 4,483,000 $ 1,613,000
================ ================
Net loss................... $ (6,230,000) $ (139,000)
================= ================
</TABLE>
(1) The Company's share of start-up costs for Transportal Network
("Transportal"), which relate to market research, creating a business plan and
related matters, was $1,185,421 for the three months ended March 31, 2000 and
$1,725,421 from October 1999 (inception) to March 31, 2000. The costs for the
three months ended March 31, 2000 are included in the Company's consolidated
statement of operations as "loss from investment in Transportal Network".
Transportal has not yet commenced operations or finalized its business plan. The
Company expects Transportal to incur significant future losses and to require
significant equity investments. The Company expects to continue to fund its
share, which may be in excess of $2,000,000, of Transportal's cash needs.
Transportal is actively seeking additional equity investments from third
parties, including venture capital firms. Early stage Internet companies, such
as Transportal, with new and unproven business models, frequently encounter
significant risks and difficulties and there can be no assurance that
Transportal will be successful or profitable.
4. REVOLVING CREDIT FACILITY
On March 7, 2000, pursuant to the revolving credit facility with Vornado,
the Company borrowed an additional $6,000,000 to fund its contribution to
AmeriCold Logistics to complete the Company's share of the March 1999 purchase
by AmeriCold Logistics of its non - real estate assets from the Vornado/Crescent
Partnerships.
5. VORNADO AGREEMENT
The Company and Vornado have entered into an agreement ("Vornado
Agreement") pursuant to which, among other things, (a) Vornado will under
certain circumstances offer the Company an opportunity to become the lessee of
certain real property owned now or in the future by Vornado (under mutually
satisfactory lease terms) and (b) the Company will not make any real estate
investment or other REIT-qualified investment unless it first offers Vornado the
opportunity to make such investment and Vornado has rejected that opportunity.
Under the Vornado Agreement, Vornado provides the Company with certain
administrative, corporate, accounting, financial, insurance, legal, tax, data
processing, human resources and operational services. Also, Vornado makes
available to the Company, at Vornado's office in Saddle Brook, New Jersey, space
for the Company's principal corporate office. For these services, the Company
compensates Vornado in an amount determined in good faith by Vornado as the
amount an unaffiliated third party would charge the Company for comparable
services and will reimburse Vornado for certain costs incurred and paid to third
parties on behalf of the Company. The Company incurred approximately $82,500 and
$40,000 for the three months ended March 31, 2000 and March 31, 1999,
respectively, for such services.
Vornado and the Company each have the right to terminate the Vornado
Agreement if the other party is in material default of the Vornado Agreement or
upon 90 days written notice to the other party at any time after December 31,
2003. In addition, Vornado has the right to terminate the Vornado Agreement upon
a change in control of the Company.
Page 7
<PAGE> 8
6. LOSS PER SHARE
The following table sets forth the computation of basic and diluted loss
per share:
<TABLE>
<CAPTION>
Three Months Ended March 31,
------------------------------------
2000 1999
------------ ------------
<S> <C> <C>
Numerator:
Net loss.................................. $ (5,527,628) $ (147,397)
============= ============
Denominator:
Denominator for basic loss per share-weighted
average shares............................ 4,068,393 4,068,310
Effect of dilutive securities:
Employee stock options................ -- --
------------ ------------
Denominator for diluted loss per share-adjusted
weighted average shares............... 4,068,393 4,068,310
============ ============
Net loss per share-basic and diluted........... $ (1.36) $ (.04)
============ ============
</TABLE>
Page 8
<PAGE> 9
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
Certain statements contained herein constitute forward-looking statements
as such term is defined in Section 27A of the Securities Act of 1933, as amended
(the "Securities Act"), and Section 21E of the Securities Exchange Act of 1934,
as amended (the "Exchange Act"). Certain factors could cause actual results to
differ materially from those in the forward-looking statements. Factors that
might cause such a material difference include, but are not limited to: (a) the
Company's limited operating history; (b) restrictions on the Company's business
and future opportunities; (c) dependence upon Vornado Realty Trust; (d) the
substantial influence of the Company's controlling stockholders and conflicts of
interest; (e) risks associated with potential investments and ability to manage
those investments; (f) competition; (g) the Company's obligations under the
revolving credit facility; (h) AmeriCold Logistics' obligations under the lease
agreements with Vornado Realty Trust; (i) the Company's limited financial
resources; (j) dependence on key personnel; (k) potential antitakeover effects
of the Company's charter documents and applicable law; (l) dependence on
dividends and distributions of subsidiaries; (m) potential costs of compliance
with environmental laws; (n) changes in the general economic climate; and (o)
government regulations. See "Risk Factors" in the Company's Annual Report on
Form 10-K for the year ended December 31, 1999.
RESULTS OF OPERATIONS
The Company had a net loss of $5,527,628 in the quarter ended March 31,
2000, compared to $147,397 in the quarter ended March 31, 1999, an increase of
$5,380,231.
Interest income was $41,778 in the quarter ended March 31, 2000, compared
to $178,804 in the quarter ended March 31, 1999, a decrease of $137,026. This
decrease results primarily from lower average invested balances.
General and administrative expenses were $937,349 for the quarter ended
March 31, 2000, compared to $189,733 for the quarter ended March 31, 1999, an
increase of $747,616. This increase results primarily from an increase in
non-cash compensation expense of $678,000 which relates to the outstanding stock
appreciation rights.
No organizational costs were incurred in the quarter ended March 31,
2000, whereas $94,559 were incurred in the quarter ended March 31, 1999.
Page 9
<PAGE> 10
The Company's loss from investment in AmeriCold Logistics was $3,738,000
for the quarter ended March 31, 2000 compared to $74,600 for the period from
March 11, 1999 (acquisition date) to March 31, 1999. On a pro forma basis,
assuming that the acquisition of AmeriCold Logistics had occurred on January 1,
1999, the Company's loss from investment in AmeriCold Logistics would have been
$1,430,000 for the quarter ended March 31, 1999. The difference between the loss
from the investment in AmeriCold logistics for the quarter ended March 31, 2000
of $3,738,000 and the pro forma loss for the quarter ended March 31, 1999 of
$1,430,000 is discussed below:
AMERICOLD LOGISTICS RESULTS OF OPERATIONS FOR THE QUARTER ENDED
MARCH 31, 2000
The following are discussions of the results of operations of
AmeriCold Logistics, the Company's Temperature Controlled Logistics
business - see the Company's Annual Report on Form 10-K for a discussion
of this business. The data below relates to 100% of this business of
which the Company owns 60%. For the purpose of the discussions below,
"Leased Operations" refer to operations at warehouses leased by AmeriCold
Logistics and "Other Operations" refer to (i) warehouses managed by
AmeriCold Logistics for the accounts of customers, (ii) Transportation
Management Services and (iii) Quarry Operations. The 1999 data is pro
forma because the acquisition of AmeriCold Logistics occurred on March
11, 1999.
In the first quarter of 2000, revenue increased $3,630,000
or 2.3%, over pro forma revenue for the first quarter of 1999, to
$164,276,000. Revenue from Leased Operations increased $8,138,000
or 7.6% over pro forma revenue to $114,771,000 million while
revenue from Other Operations decreased $4,508,000 or 8.3% to
$49,505,000. The revenue increase in Leased Operations results
from (i) increased revenue at comparable warehouses (operations at
warehouses that were leased for the same period in each year) of
$3,907,000 or 3.7% and (ii) increased revenue from new warehouses
of $4,231,000. The decrease in revenue from Other Operations is
primarily the result of a decline in Transportation Management
Services revenue due to the expiration of a contract with a
customer.
Margin percentage for Leased Operations at comparable
warehouses declined by .72% resulting in a decline in operating
income of approximately $762,000. As a result of the increased
volume offset by the margin percentage decline, margin dollars
increased by $797,000. In addition, newly built warehouses
contributed $915,000 of margin dollars which results in a total
increase of $1,712,000.
Operating income from Other Operations was $2,342,000 for
the quarter ended March 31, 2000, compared to $3,576,000 for the
pro forma quarter ended March 31, 1999, a decrease of $1,234,000.
This decrease resulted primarily from the decline in the
transportation revenue and a decline in Quarry Operations.
Rent expense was $42,854,000 for the quarter ended March
31, 2000, compared to $40,340,000 for the pro forma quarter ended
March 31, 1999, an increase of $2,514,000. $942,000 of this
increase resulted from increased revenue at comparable warehouses
and $1,572,000 resulted from rent at new warehouses.
General and administrative expenses were $8,844,000 for the
quarter ended March 31, 2000, compared to $7,802,000 for the pro
forma quarter ended March 31, 1999, an increase of $1,042,000.
This increase resulted from increased staffing for long-term
growth strategies.
Depreciation and amortization expense was $1,981,000 for
the quarter ended March 31, 2000, compared to $1,613,000 for the
pro forma quarter ended March 31, 1999, an increase of $368,000.
This increase resulted primarily from changes in purchase price
allocation.
Other income, net of interest expense, was $112,000 for the
quarter ended March 31, 2000, compared to $512,000 for the pro
forma quarter ended March 31, 1999, a decrease of $400,000.
Results for the prior year's quarter included the non-recurring
income from a change in employee benefits plans.
As a result of the aforementioned factors, AmeriCold
Logistics' net loss for the quarter ended March 31, 2000 increased
approximately $3,846,000 to $6,230,000 when compared to the pro
forma
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<PAGE> 11
quarter ended March 31, 1999. AmeriCold Logistics believes that
the loss for the quarter ended March 31, 2000, is not necessarily
indicative of the operating results expected for the full year,
due to the seasonality of the business. Historically, revenue from
Transportation Management Services and Quarry Operations are
substantially lower in the first quarter than the average of the
quarters for the remainder of the year.
Loss from investment in Transportal Network was $1,975,702, which
consisted of initial start-up and organization costs for the three months ended
March 31, 2000. The Company's share of this loss is $1,185,421 million.
Interest and debt expense for the quarter ended March 31, 2000 was
$316,000 compared to $263,505 in the prior year's quarter, an increase of
$52,495. This increase results primarily from higher average outstanding
balances under the revolving credit facility from Vornado Realty Trust.
LIQUIDITY AND CAPITAL RESOURCES
The Company has a $75,000,000 unsecured revolving credit facility with
Vornado which expires on December 31, 2004. Borrowings under this facility bear
interest at LIBOR plus 3% (9.04% at March 31, 2000). The Company pays Vornado a
commitment fee equal to 1% per annum on the average daily unused portion of the
facility pursuant thereto; for the quarter ended March 31, 2000 the Company paid
$173,822 to Vornado. Principal payments are not required under the Revolving
Credit Agreement during its term. The Revolving Credit Agreement prohibits the
Company from incurring indebtedness to third parties (other than certain
purchase money debt and certain other exceptions) and prohibits the Company from
paying dividends. The Company has no external sources of financing except this
facility.
On March 7, 2000, pursuant to the revolving credit facility with Vornado,
the Company borrowed an additional $6,000,000 to fund its contribution to
AmeriCold Logistics to complete the Company's share of the March 1999 purchase
by AmeriCold Logistics of its non - real estate assets from the Vornado/Crescent
Partnerships.
The Company's share of start-up costs for Transportal Network
("Transportal"), which relate to market research, creating a business plan and
related matters, was $1,185,421 for the three months ended March 31, 2000 and
$1,725,421 from October 1999 (inception) to March 31, 2000. Transportal has not
yet commenced operations or finalized its business plan. The Company expects
Transportal to incur significant future losses and to require significant equity
investments. The Company expects to continue to fund its share, which may be in
excess of $2,000,000, of Transportal's cash needs. Transportal is actively
seeking additional equity investments from third parties, including venture
capital firms. Early stage Internet companies, such as Transportal, with new and
unproven business models, frequently encounter significant risks and
difficulties and there can be no assurance that Transportal will be successful
or profitable.
In the aggregate, the Company's investments do not generate sufficient
cash flow to pay all of its expenses. The Company estimates that it has adequate
borrowing capacity under its credit facility to meet its cash requirements.
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
At March 31, 2000, the Company had $10,586,896 of variable rate debt
bearing interest at an interest rate of 9.04% (LIBOR plus 3.00%). A one percent
increase for one year in the base used to determine the interest rate of the
variable rate debt would result in a $95,388 increase in the Company's annual
net loss ($0.02 per basic and diluted share).
Page 11
<PAGE> 12
PART II. OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
The Company is from time to time involved in legal actions arising in the
ordinary course of its business. In the opinion of management, after
consultation with legal counsel, the outcome of such matters will not have a
material adverse effect on the Company's financial condition, results of
operations or cash flows.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits required by Item 601 of Regulation S-K are filed herewith and
are listed in the attached Exhibit Index.
(b) Reports on Form 8-K: None.
Page 12
<PAGE> 13
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
VORNADO OPERATING COMPANY
------------------------------------------
(Registrant)
Date: May 4, 2000 By: /s/ IRWIN GOLDBERG
------------------------------------------
IRWIN GOLDBERG
Vice President, Chief Financial Officer
Page 13
<PAGE> 14
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. PAGE
- ----------- ----
<S> <C>
The following is a list of all exhibits filed as part of this report
2.1 Assignment Agreement, dated as of December 31, 1998, between Vornado Realty *
Trust, as assignor, and Vornado Operating Company, assignee (incorporated
by reference to Exhibit 2.1 of the Company's Current Report on Form 8-K,
dated December 31, 1998 (File No. 001-14525), as filed with the Commission
on January 15, 1999)
2.2 Put Agreement, dated as of December 31, 1998, between Vornado Realty Trust, *
as grantor, and Vornado Operating Company, as grantee (incorporated by
reference to Exhibit 2.2 of the Company's Current Report on Form 8-K, dated
December 31, 1998 (File No. 001 -14525), as filed with the Commission on
January 15, 1999)
2.3 Asset Purchase Agreement dated as of February 26, 1999, between AmeriCold *
Logistics, LLC, as Purchaser, and AmeriCold Corporation, as Seller
(incorporated by reference to Exhibit 2.1 of the, Company's Current Report
on Form 8-K, dated March 12, 1999 (File No. 001-14525), as filed with the
Commission on March 31, 1999)
2.4 Asset Purchase Agreement, dated as of March 9, 1999, between Vornado *
Crescent Logistics Operating Partnership, as Purchaser, and URS Logistics,
Inc., as Seller (incorporated by reference to Exhibit 2.2 of the Company's
Current Report on form 8-K, dated March 12, 1999 (File No. 001-14525), as
filed with the Commission on March 31, 1999)
2.5 Asset Purchase Agreement, dated as of March 9, 1999, between AmeriCold *
Logistics, LLC, as Purchaser, and VC Omaha Holdings, L.L.C., as Seller
(incorporated by reference to Exhibit 2.3 of the Company's Current Report
on Form 8-K, dated March 12, 1999 (File No. 001-14525), as filed with the
Commission on March 31, 1999)
2.6 Asset Purchase Agreement, dated as of March 9, 1999, between AmeriCold *
Logistics II, LLC, as Purchaser, and VC Missouri Holdings, L.L.C., as
Seller (incorporated by reference to Exhibit 2.4 of the Company's Current
Report on Form 8-K, dated March 12, 1999 (File No. 001-14525), as filed
with the Commission on March 31, 1999)
3.1 Restated Certificate of Incorporation of Vornado Operating Company *
(incorporated by reference to Exhibit 3.1 of the Company's Registration
Statement on Form S-11 (File No. 333-40701), as filed with the Commission
on September 28, 1998)
3.2 Amended and Restated Bylaws of Vornado Operating Company
</TABLE>
- ----------------------------
* Incorporated by reference.
Page 14
<PAGE> 15
<TABLE>
<CAPTION>
EXHIBIT NO. PAGE
----------- ----
<S> <C>
4.1 Specimen stock certificate (incorporated by reference to Exhibit 4.1 of the *
Company's Registration Statement on Form S-11 (File No. 333-40701), as
filed with the Commission on January 23, 1998)
10.1 Intercompany Agreement, dated as of October 16, 1998, between Vornado *
Operating Company and Vornado Realty Trust (incorporated by reference to
Exhibit 10.1 of the Company's Annual Report on Form 10-K for the year ended
December 31, 1998 (File No. 001-14525))
10.2 Credit Agreement dated as of January 1, 1999, between Vornado Operating *
Company and Vornado Realty L.P., together with related form of Line of
Credit Note (incorporated by reference to Exhibit 10.2 of the Company's
Annual Report on Form 10-K for the year ended December 31, 1998 (File No.
001-14525))
10.3 1998 Omnibus Stock Plan of Vornado Operating Company (incorporated by *
reference to Exhibit 10.3 of the Company's Annual Report on Form 10-K for
the year ended December 31, 1998 (File No. 001 -14525))
10.4 Agreement of Limited Partnership of Vornado Operating L.P. (incorporated by *
reference to Exhibit 10.4 of the Company's Annual Report on Form 10-K for
the year ended December 31, 1998 (File No. 001-14525))
10.5 Agreement, dated March 11, 1999, between Vornado Operating L.P. and COPI *
Temperature Controlled Logistics L.L.C. (incorporated by reference to
Exhibit 10.1 of the Company's Current Report on Form 8-K, dated March 12,
1999 (File No. 001-14525), as filed with the Commission on March 31, 1999)
10.6 Master Lease Agreement, dated as of April 22, 1998, between URS Real *
Estate, L.P., as Landlord, and URS Logistics, Inc., as Tenant (incorporated
by reference to Exhibit 10.2 of the Company's Current Report on Form 8-K/A,
dated March 12, 1999 (File No. 001-14525), as filed with the Commission on
May 26, 1999).
10.7 First Amendment to Master Lease Agreement, dated as of March 10, 1999, *
between URS Real Estate, L.P. and URS Logistics, Inc. (incorporated by
reference to Exhibit 10.3 of the Company's Current Report on Form 8-K/A,
dated March 12, 1999 (File No. 001-14525), as filed with the Commission on
May 26, 1999).
10.8 Assignment and Assumption of Master Lease, dated as of March 11, 1999, *
between URS Logistics, Inc. and AmeriCold Logistics II, LLC (incorporated
by reference to Exhibit 10.4 of the Company's Current Report on Form 8-K/A,
dated March 12, 1999 (File No. 001-14525), as filed with the Commission on
May 26, 1999).
10.9 Master Lease Agreement, dated as of April 22, 1998, between AmeriCold Real *
Estate, L.P., as Landlord and AmeriCold Corporation, as Tenant
(incorporated by reference to Exhibit 10.5 of the Company's Current Report
on Form 8-K/A, dated March 12, 1999 (File No. 001-14525), as filed with the
Commission on May 26, 1999).
</TABLE>
- ----------------------------
* Incorporated by reference.
Page 15
<PAGE> 16
<TABLE>
<CAPTION>
EXHIBIT NO. PAGE
----------- ----
<S> <C>
10.10 First Amendment to Master Lease Agreement, dated as of March 10, *
1999, between AmeriCold Real Estate, L.P. and AmeriCold Logistics,
LLC (incorporated by reference to Exhibit 10.6 of the Company's
Current Report on Form 8-K/A, dated March 12, 1999 (File No.
001-14525), as filed with the Commission on May 26, 1999).
10.11 Assignment and Assumption of Master Lease, dated as of February 28, *
1999, between AmeriCold Corporation and AmeriCold Logistics, LLC
(incorporated by referenced to Exhibit 10.7 of the Company's Current
Report on Form 8-K/A, dated March 12, 1999 (File No. 001-14525), as
filed with the Commission on May 26, 1999).
10.12 Master Lease Agreement, dated as of March 11, 1999, between URS *
Logistics, Inc., as landlord, and AmeriCold Logistics II, LLC, as
Tenant (incorporated by reference to Exhibit 10.8 of the Company's
Current Report on Form 8-K/A, dated March 12, 1999 (File No.
001-14525), as filed with the Commission on May 26, 1999).
10.13 Master Lease Agreement, dated as of February 28, 1999, between *
AmeriCold Corporation, as Landlord, and AmeriCold Logistics, LLC, as
Tenant (incorporated by reference to Exhibit 10.9 of the Company's
Current Report on Form 8-K/A, dated March 12, 1999 (File No.
001-14525), as filed with the Commission on May 26, 1999).
10.14 Master Lease Agreement, dated as of March 11, 1999, between each of *
the entities listed on Exhibit A thereto, collectively as Landlord,
and AmeriCold Logistics, LLC, as Tenant (incorporated by reference
to Exhibit 10.10 of the Company's Current Report on Form 8-K/A,
dated March 12, 1999 (File No. 001-14525), as filed with the
Commission on May 26, 1999).
10.14(A) Amendment to Master Lease Agreement, dated as of March 22, 2000,
among each of the entities identified on Exhibit A thereto,
collectively as Landlord, and AmeriCold Logistic, LLC, as Tenant.
10.15 Master Lease Agreement, dated as of March 11, 1999, between VC Omaha *
Holdings, L.L.C. and Carmar Freezers Thomasville L.L.C., together as
Landlord, and AmeriCold Logistics, LLC, as Tenant (incorporated by
reference to Exhibit 10.11 of the Company's Current Report on Form
8-K/A, dated March 12, 1999 (File No. 001-14525), as filed with the
Commission on May 26, 1999).
27 Financial Data Schedule
</TABLE>
- ----------------------------
* Incorporated by reference.
Page 16
<PAGE> 1
EXHIBIT 3.2
AMENDED AND RESTATED BY-LAWS
OF
VORNADO OPERATING COMPANY
ARTICLE I
Stockholders
Section 1.1. Annual Meetings. An annual meeting of stockholders shall be
held for the election of directors at such date, time and place either within or
without the State of Delaware as may be designated by the Board of Directors
from time to time. Any other proper business may be transacted at the annual
meeting.
Section 1.2. Special Meetings. Special meetings of stockholders may be
called at any time by the Chairman of the Board, if any, the Vice Chairman of
the Board, if any, the Chief Executive Officer, the President or the Board of
Directors pursuant to a resolution stating the purpose or purposes thereof, to
be held at such date, time and place either within or without the State of
Delaware as may be stated in the notice of the meeting. Any power of
stockholders to call a special meeting is specifically denied.
Section 1.3. Notice of Meetings. Whenever stockholders are required or
permitted to take any action at a meeting, a written notice of the meeting shall
be given which shall state the place, date and hour of the meeting, and, in the
case of a special meeting, the purpose or purposes for which the meeting is
called. Unless otherwise provided by law, the written notice of any meeting
shall be given not less than ten nor more than sixty days before the date of the
meeting to each stockholder entitled to vote at such meeting. If mailed, such
notice shall be deemed to be given when deposited in the United States mail,
postage prepaid, directed to the stockholder at such stockholder's address as it
appears on the records of the Corporation.
Section 1.4. Adjournments. Any meeting of stockholders, annual or special,
may be adjourned from time to time, to reconvene at the same or some other
place, and
<PAGE> 2
notice need not be given of any such adjourned meeting if the time and place
thereof are announced at the meeting at which the adjournment is taken. At the
adjourned meeting the Corporation may transact any business which might have
been transacted at the original meeting. If the adjournment is for more than
thirty days, or if after the adjournment a new record date is fixed for the
adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting.
Section 1.5. Quorum. At each meeting of stockholders, except where
otherwise provided by law or the certificate of incorporation or these by-laws,
the holders of a majority of the outstanding shares of stock entitled to vote on
a matter at the meeting, present in person or represented by proxy, shall
constitute a quorum. For purposes of the foregoing, where a separate vote by
class or classes is required for any matter, the holders of a majority of the
outstanding shares of such class or classes, present in person or represented by
proxy, shall constitute a quorum to take action with respect to that vote on
that matter. Two or more classes or series of stock shall be considered a single
class if the holders thereof are entitled to vote together as a single class at
the meeting. In the absence of a quorum of the holders of any class of stock
entitled to vote on a matter, the holders of such class so present or
represented may, by majority vote, adjourn the meeting of such class from time
to time in the manner provided by Section 1.4 of these by-laws until a quorum of
such class shall be so present or represented. Shares of its own capital stock
belonging on the record date for the meeting to the Corporation or to another
corporation, if a majority of the shares entitled to vote in the election of
directors of such other corporation is held, directly or indirectly, by the
Corporation, shall neither be entitled to vote nor be counted for quorum
purposes; provided, however, that the foregoing shall not limit the right of the
Corporation to vote stock, including but not limited to its own stock, held by
it in a fiduciary capacity.
Section 1.6. Organization. Meetings of stockholders shall be presided over
by the Chairman of the Board, if any, or in the absence of the Chairman of the
Board by the Vice Chairman of the Board, if any, or in the
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<PAGE> 3
absence of the Vice Chairman of the Board by the Chief Executive Officer, or in
the absence of the Chief Executive Officer by the President, or in the absence
of the President by a Vice President, or in the absence of the foregoing persons
by a chairman designated by the Board of Directors, or in the absence of such
designation by a chairman chosen at the meeting. The Secretary, or in the
absence of the Secretary an Assistant Secretary, shall act as secretary of the
meeting, but in the absence of the Secretary and any Assistant Secretary the
chairman of the meeting may appoint any person to act as secretary of the
meeting.
The order of business at each such meeting shall be as determined by the
chairman of the meeting. The chairman of the meeting shall have the right and
authority to prescribe such rules, regulations and procedures and to do all such
acts and things as are necessary or desirable for the proper conduct of the
meeting, including, without limitation, the establishment of procedures for the
maintenance of order and safety, limitations on the time allotted to questions
or comments on the affairs of the Corporation, restrictions on entry to such
meeting after the time prescribed for the commencement thereof and the opening
and closing of the voting polls.
Section 1.7. Inspectors. Prior to any meeting of stockholders, the Board of
Directors, the Chief Executive Officer or the President shall appoint one or
more inspectors to act at such meeting and make a written report thereof and may
designate one or more persons as alternate inspectors to replace any inspector
who fails to act. If no inspector or alternate is able to act at the meeting of
stockholders, the person presiding at the meeting shall appoint one or more
inspectors to act at the meeting. Each inspector, before entering upon the
discharge of his or her duties, shall take and sign an oath faithfully to
execute the duties of inspector with strict impartiality and according to the
best of his or her ability. The inspectors shall ascertain the number of shares
outstanding and the voting power of each, determine the shares represented at
the meeting and the validity of proxies and ballots, count all votes and
ballots, determine and retain for a reasonable period a record of the
disposition of any challenges made to any determination by the inspectors and
certify their determination of the
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<PAGE> 4
number of shares represented at the meeting and their count of all votes and
ballots. The inspectors may appoint or retain other persons to assist them in
the performance of their duties. The date and time of the opening and closing of
the polls for each matter upon which the stockholders will vote at a meeting
shall be announced at the meeting. No ballot, proxy or vote, nor any revocation
thereof or change thereto, shall be accepted by the inspectors after the closing
of the polls. In determining the validity and counting of proxies and ballots,
the inspectors shall be limited to an examination of the proxies, any envelopes
submitted therewith, any information provided by a stockholder who submits a
proxy by telegram, cablegram or other electronic transmission from which it can
be determined that the proxy was authorized by the stockholder, ballots and the
regular books and records of the corporation, and they may also consider other
reliable information for the limited purpose of reconciling proxies and ballots
submitted by or on behalf of banks, brokers, their nominees or similar persons
which represent more votes than the holder of a proxy is authorized by the
record owner to cast or more votes than the stockholder holds of record. If the
inspectors consider other reliable information for such purpose, they shall, at
the time they make their certification, specify the precise information
considered by them, including the person or persons from whom they obtained the
information, when the information was obtained, the means by which the
information was obtained and the basis for the inspectors' belief that such
information is accurate and reliable.
Section 1.8. Voting; Proxies. Unless otherwise provided in the certificate
of incorporation, each stockholder entitled to vote at any meeting of
stockholders shall be entitled to one vote for each share of stock held by such
stockholder which has voting power upon the matter in question. Each stockholder
entitled to vote at a meeting of stockholders or to express consent or dissent
to corporate action in writing without a meeting may authorize another person or
persons to act for such stockholder by proxy, but no such proxy shall be voted
or acted upon after three years from its date, unless the proxy provides for a
longer period. A duly executed proxy shall be irrevocable if it states that it
is irrevocable and if, and only as long as, it is coupled with an interest
sufficient in law to support an irrevocable power, regardless of whether the
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<PAGE> 5
interest with which it is coupled is an interest in the stock itself or an
interest in the Corporation generally. A stockholder may revoke any proxy which
is not irrevocable by attending the meeting and voting in person or by filing an
instrument in writing revoking the proxy or another duly executed proxy bearing
a later date with the Secretary of the Corporation. Voting at meetings of
stockholders need not be by written ballot unless the holders of a majority of
the outstanding shares of all classes of stock entitled to vote thereon present
in person or represented by proxy at such meeting shall so determine. Directors
shall be elected by a plurality of the votes of the shares present in person or
represented by proxy at the meeting and entitled to vote on the election of
directors. In all other matters, unless otherwise provided by law or by the
certificate of incorporation or these by-laws, the affirmative vote of the
holders of a majority of the shares present in person or represented by proxy at
the meeting and entitled to vote on the subject matter shall be the act of the
stockholders. Where a separate vote by class or classes is required, the
affirmative vote of the holders of a majority of the shares of such class or
classes present in person or represented by proxy at the meeting shall be the
act of such class or classes, except as otherwise provided by law or by the
certificate of incorporation or these by-laws.
Section 1.9. Fixing Date for Determination of Stockholders of Record. In
order that the Corporation may determine the stockholders entitled to notice of
or to vote at any meeting of stockholders or any adjournment thereof, the Board
of Directors may fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted by the Board of
Directors, and which record date shall not be more than sixty nor less than ten
days before the date of such meeting. If no record date is fixed by the Board of
Directors, the record date for determining stockholders entitled to notice of or
to vote at a meeting of stockholders shall be at the close of business on the
day next preceding the day on which notice is given, or, if notice is waived, at
the close of business on the day next preceding the day on which the meeting is
held. A determination of stockholders of record entitled to notice of or to vote
at a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the
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<PAGE> 6
Board of Directors may fix a new record date for the adjourned meeting.
In order that the Corporation may determine the stockholders entitled to
receive payment of any dividend or other distribution or allotment of any rights
or the stockholders entitled to exercise any rights in respect of any change,
conversion or exchange of stock, or for the purpose of any other lawful action,
the Board of Directors may fix a record date, which record date shall not
precede the date upon which the resolution fixing the record date is adopted,
and which record date shall be not more than sixty days prior to such action. If
no record date is fixed, the record date for determining stockholders for any
such purpose shall be at the close of business on the day on which the Board of
Directors adopts the resolution relating thereto.
Section 1.10. List of Stockholders Entitled to Vote. The Secretary shall
prepare and make, at least ten days before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each stockholder and the number
of shares registered in the name of each stockholder. Such list shall be open to
the examination of any stockholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least ten days prior to the
meeting, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof and may be inspected by any stockholder who is present.
Section 1.11. Consent of Stockholders Not Permitted. Any action required or
permitted to be taken by the stockholders of the Corporation must be taken at a
duly called annual or special meeting of such holders and may not be taken by
any consent in writing by such holders.
Section 1.12. Advance Notice of Stockholder Proposals. The matters to be
considered and brought before any annual or special meeting of stockholders of
the Corporation shall be limited to only such matters,
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<PAGE> 7
including the nomination and election of directors, as shall be brought properly
before such meeting in compliance with the procedures set forth in this Section
1.12.
For any matter to be properly before any annual meeting of stockholders,
the matter must be (i) specified in the notice of annual meeting given by or at
the direction of the Board of Directors, (ii) otherwise brought before the
annual meeting by or at the direction of the Board of Directors or (iii) brought
before the annual meeting in the manner specified in this Section 1.12 by any
stockholder of the Corporation who was a stockholder of record at the time of
giving the applicable Stockholder Notice referred to below, who is entitled to
vote at the meeting and who complied with the notice procedures set forth in
this Section 1.12.
In addition to any other requirements under applicable law and the
certificate of incorporation and by-laws of the Corporation, no nomination by
any stockholder or stockholders of a person or persons for election as directors
of the Corporation, and no other proposal by any stockholder or stockholders,
shall be considered properly brought before the meeting unless notice of any
such nomination or proposal (the "Stockholder Notice") shall be delivered to
the Secretary of the Corporation at the principal executive office of the
Corporation not less than 120 nor more than 150 days prior to the first
anniversary of the annual meeting for the preceding year; provided, however,
that if the date of the meeting is advanced or delayed by more than 30 days from
such anniversary date, such Stockholder Notice shall be delivered to the
Secretary of the Corporation at the principal executive office of the
Corporation not earlier than the 90th day prior to such annual meeting and not
later than the close of business on the later of the 60th day prior to such
annual meeting or the tenth day following the day on which the date of such
meeting is first publicly announced or disclosed. Any stockholder desiring to
nominate any person or persons (as the case may be) for election as a director
or directors of the Corporation shall deliver, as part of such Stockholder
Notice, a statement in writing setting forth the name of the person or persons
to be nominated, the number and class of all shares of each class of stock of
the Corporation owned of record and beneficially by each such person, as
reported to such stockholder by such nominee(s), the
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<PAGE> 8
information regarding each such person required by paragraphs (a), (e) and (f)
of Item 401 of Regulation S-K adopted by the Securities and Exchange Commission
(or the corresponding provisions of any regulation subsequently adopted by the
Securities and Exchange Commission applicable to the Corporation), each such
person's signed consent to serve as a director of the Corporation if elected,
such stockholder's name and address, the number and class of all shares of each
class of stock of the Corporation owned of record and beneficially by such
stockholder and whether any such person or such stockholder has received any
financial assistance, funding or other consideration from any other person in
respect of the nomination (and the details thereof).
Any stockholder who gives a Stockholder Notice of any matter (not involving
nominees for director) proposed to be brought before a meeting of stockholders
shall deliver, as part of such Stockholder Notice, the text of the proposal to
be presented and a brief written statement of the reasons why such stockholder
favors the proposal and setting forth such stockholder's name and address, the
number and class of all shares of each class of stock of the Corporation owned
of record and beneficially by such stockholder, if applicable, any material
interest of such stockholder in the matter proposed (other than as a stockholder
generally) and whether such stockholder has received any financial assistance,
funding or other consideration from any other person in respect of the proposal
(and the details thereof). As used herein, shares "beneficially owned" shall
mean all shares which such person, or any of such person's affiliates and
associates (as defined in Rule 12b-2 under the Securities Exchange Act of 1934
(the "Exchange Act")), is deemed to beneficially own pursuant to Rules 13d-3 and
13d-5 under the Exchange Act, as well as all shares of which such person, or any
of such person's affiliates and associates, has the right to become the
beneficial owner pursuant to any agreement or understanding, or upon the
exercise of warrants, options or rights to convert or exchange (whether such
rights are exercisable immediately or only after the passage of time or the
occurrence of conditions).
Notwithstanding anything in this Section 1.12 to the contrary, in the event
that the number of directors to be elected to the Board of Directors of the
Corporation is
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<PAGE> 9
increased and either all of the nominees for director or the size of the
increased Board of Directors is not publicly announced or disclosed by the
Corporation not less than 130 days prior to the first anniversary date of the
annual meeting for the preceding year, a Stockholder Notice shall also be
considered timely hereunder, but only with respect to nominees for any new
positions created by such increase, if it shall be delivered to the Secretary of
the Corporation at the principal executive office of the Corporation not later
than the close of business on the tenth day following the first date all of such
nominees or the size of the increased Board of Directors shall have been
publicly announced or disclosed.
Only such matters shall be properly brought before a special meeting of
stockholders as shall have been brought before the meeting pursuant to the
Corporation's notice of meeting. In the event the Corporation calls a special
meeting of stockholders for the purpose of electing one or more directors to the
Board of Directors, any stockholder may nominate a person or persons (as the
case may be), for election to such position(s) as specified in the Corporation's
notice of meeting, if the Stockholder Notice required by this Section 1.12 shall
be delivered to the Secretary of the Corporation at the principal executive
office of the Corporation not later than the close of business on the tenth day
following the day on which the date of the special meeting and of the nominees
proposed by the Board of Directors to be elected at such meeting is publicly
announced or disclosed.
For purposes of this Section 1.12, a matter shall be deemed to have been
"publicly announced or disclosed" if such matter is disclosed in a press release
reported by the Dow Jones News Service, Associated Press or comparable national
news service or in a document publicly filed by the Corporation with the
Securities and Exchange Commission.
In no event shall the adjournment of an annual or special meeting, or any
announcement thereof, commence a new period for the giving of notice as provided
in this Section 1.12. Notwithstanding the foregoing provisions of this Section
1.12, a stockholder shall also comply with all applicable requirements of the
Exchange Act and the rules and regulations thereunder and of the laws of the
State of
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<PAGE> 10
Delaware with respect to the matters set forth in this Section 1.12. Nothing in
this Section 1.12 shall be deemed to affect any rights (i) of stockholders to
request inclusion of proposals in the Corporations proxy statement pursuant to
Rule 14a-8 under the Exchange Act or (ii) of the holders of any series of
preferred stock of the Corporation, if any, to elect directors under specified
circumstances.
The person presiding at any meeting of stockholders, in addition to making
any other determinations that may be appropriate to the conduct of the meeting,
shall have the power and duty to determine whether notice of nominees and other
matters proposed to be considered and brought before a meeting has been duly
given in the manner provided in this Section 1.12 and, if not so given, shall
direct and declare at the meeting that such nominees and other matters shall not
be considered.
ARTICLE II
Board of Directors
Section 2.1. Powers; Number; Qualifications. The business and affairs of
the Corporation shall be managed by or under the direction of the Board of
Directors, except as may be otherwise provided by law or in the certificate of
incorporation. The Board of Directors shall consist of one or more members, the
number thereof to be determined from time to time by the Board. Directors need
not be stockholders.
Section 2.2. Election; Term of Office; Resignation; Removal; Vacancies. The
directors of the Corporation shall be divided into three classes, as nearly
equal in number as reasonably possible, as determined by the Board of Directors,
with the initial term of office of the first class of such directors to expire
at the annual meeting of stockholders in 1999, the initial term of office of the
class of such directors to expire at the second annual meeting of stockholders
in 2000 and the initial term of office of the class of such directors to expire
at the third annual meeting of stockholders in 2001, with each class of
directors to hold office until their successors have been duly elected and
qualified. At each annual meeting of stockholders, directors elected to succeed
the
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<PAGE> 11
directors whose terms expire at such annual meeting shall be elected to hold
office for a term expiring at the annual meeting of stockholders in the third
year following the year of their election and until their successors have been
duly elected and qualified or until his or her earlier resignation or removal.
Any director may resign at any time upon written notice to the Board of
Directors or to the President or the Secretary of the Corporation. Such
resignation shall take effect at the time specified therein, and unless
otherwise specified therein no acceptance of such resignation shall be necessary
to make it effective. No director may be removed except for cause.
In the event of any increase or decrease in the authorized number of
directors, (a) each director then serving as such shall nonetheless continue as
a director of the class of which he is a member until the expiration of his
current term, or his earlier death, retirement, resignation, or removal, and (b)
the newly created or eliminated directorships resulting from such increase or
decrease shall be apportioned by the Board of Directors among the three classes
of directors so as to maintain such classes as nearly equal in number as
reasonably possible. Unless otherwise provided in the certificate of
incorporation or these by-laws, vacancies, whether arising through death,
retirement, resignation or removal of a director or through an increase in the
authorized number of directors of any class, may only be filled by a majority
vote of the remaining directors of the class in which such vacancy occurs, or by
the sole remaining director of that class if one such director remains, or by
the majority vote of the directors of the remaining classes if no such director
remains, or by stockholders at an annual meeting of stockholders of the
Corporation. Any director elected or appointed to fill a vacancy shall hold
office until the next election of the class of directors of the director which
such director replaced, and until and his or her successor is elected and
qualified or until his or her earlier resignation or removal.
Section 2.3. Regular Meetings. Regular meetings of the Board of Directors
may be held at such places within or without the State of Delaware and at such
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<PAGE> 12
times as the Board may from time to time determine, and if so determined notice
thereof need not be given.
Section 2.4. Special Meetings. Special meetings of the Board of Directors
may be held at any time or place within or without the State of Delaware
whenever called by the Chairman of the Board, if any, by the Vice Chairman of
the Board, if any, by the Chief Executive Officer by the President or by any two
directors. Reasonable notice thereof shall be given by the person or persons
calling the meeting.
Section 2.5. Participation in Meetings by Conference Telephone Permitted.
Unless otherwise restricted by the certificate of incorporation or these
by-laws, members of the Board of Directors, or any committee designated by the
Board, may participate in a meeting of the Board or of such committee, as the
case may be, by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other, and participation in a meeting pursuant to this by-law shall
constitute presence in person at such meeting.
Section 2.6. Quorum; Vote Required for Action. At all meetings of the Board
of Directors one-third of the entire Board shall constitute a quorum for the
transaction of business. The vote of a majority of the directors present at a
meeting at which a quorum is present shall be the act of the Board unless the
certificate of incorporation or these by-laws shall require a vote of a greater
number. In case at any meeting of the Board a quorum shall not be present, the
members of the Board present may adjourn the meeting from time to time until a
quorum shall be present.
Section 2.7. Organization. Meetings of the Board of Directors shall be
presided over by the Chairman of the Board, if any, or in the absence of the
Chairman of the Board by the Vice Chairman of the Board by the Chief Executive
Officer, or in the absence of the Chief Executive Officer if any, or in the
absence of the Vice Chairman of the Board by the President, or in their absence
by a chairman chosen at the meeting. The Secretary, or in the absence of the
Secretary an Assistant Secretary, shall act as secretary of the meeting, but in
the absence of the
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<PAGE> 13
Secretary and any Assistant Secretary the chairman of the meeting may appoint
any person to act as secretary of the meeting.
Section 2.8. Action by Directors Without a Meeting. Unless otherwise
restricted by the certificate of incorporation or these by-laws, any action
required or permitted to be taken at any meeting of the Board of Directors, or
of any committee thereof, may be taken without a meeting if all members of the
Board or of such committee, as the case may be, consent thereto in writing, and
the writing or writings are filed with the minutes of proceedings of the Board
or committee.
Section 2.9. Compensation of Directors. Unless otherwise restricted by the
certificate of incorporation or these by-laws, the Board of Directors shall have
the authority to fix the compensation of directors.
ARTICLE III
Committees
Section 3.1. Committees. The Board of Directors may designate one or more
committees, each committee to consist of one or more of the directors of the
Corporation. The Board may designate one or more directors as alternate members
of any committee, who may replace any absent or disqualified member at any
meeting of the committee. In the absence or disqualification of a member of a
committee, the member or members thereof present at any meeting and not
disqualified from voting, whether or not such member or members constitute a
quorum, may unanimously appoint another member of the Board to act at the
meeting in the place of any such absent or disqualified member. Any such
committee, to the extent provided in the resolution of the Board of Directors or
in these by-laws, shall have and may exercise all the powers and authority of
the Board of Directors in the management of the business and affairs of the
Corporation, and may authorize the seal of the Corporation to be affixed to all
papers which may require it; but no such committee shall have the power or
authority in reference to the following matters: (i) approving or adopting, or
recommending to the stockholders, any action or matter expressly required by law
to be submitted to stockholders for approval, (ii) adopting,
- 13 -
<PAGE> 14
amending or repealing these by-laws or (iii) removing or indemnifying directors.
Section 3.2. Committee Rules. Unless the Board of Directors otherwise
provides, each committee designated by the Board may adopt, amend and repeal
rules for the conduct of its business. In the absence of a provision by the
Board or a provision in the rules of such committee to the contrary, a majority
of the entire authorized number of members of such committee shall constitute a
quorum for the transaction of business, the vote of a majority of the members
present at a meeting at the time of such vote if a quorum is then present shall
be the act of such committee, and in other respects each committee shall conduct
its business in the same manner as the Board conducts its business pursuant to
Article II of these by-laws.
ARTICLE IV
Officers
Section 4.1. Officers; Election. As soon as practicable after the annual
meeting of stockholders in each year, the Board of Directors shall elect a Chief
Executive Officer, a President and a Secretary, and it may, if it so determines,
elect from among its members a Chairman of the Board and a Vice Chairman of the
Board. The Board may also elect one or more Vice Presidents, one or more
Assistant Vice Presidents, one or more Assistant Secretaries, a Treasurer and
one or more Assistant Treasurers and such other officers as the Board may deem
desirable or appropriate and may give any of them such further designations or
alternate titles as it considers desirable. Any number of offices may be held by
the same person unless the certificate of incorporation or these by-laws
otherwise provide.
Section 4.2. Term of Office; Resignation; Removal; Vacancies. Unless
otherwise provided in the resolution of the Board of Directors electing any
officer, each officer shall hold office until his or her successor is elected
and qualified or until his or her earlier resignation or removal. Any officer
may resign at any time upon written notice to the Board or to the President or
the Secretary of the Corporation. Such resignation shall take effect at the time
specified therein, and unless otherwise
- 14 -
<PAGE> 15
specified therein no acceptance of such resignation shall be necessary to make
it effective. The Board may remove any officer with or without cause at any
time. Any such removal shall be without prejudice to the contractual rights of
such officer, if any, with the Corporation, but the election of an officer shall
not of itself create contractual rights. Any vacancy occurring in any office of
the Corporation by death, resignation, removal or otherwise may be filled by the
Board at any regular or special meeting.
Section 4.3. Powers and Duties. The officers of the Corporation shall have
such powers and duties in the management of the Corporation as shall be stated
in these by-laws or in a resolution of the Board of Directors which is not
inconsistent with these by-laws and, to the extent not so stated, as generally
pertain to their respective offices, subject to the control of the Board. The
Secretary shall have the duty to record the proceedings of the meetings of the
stockholders, the Board of Directors and any committees in a book to be kept for
that purpose. The Board may require any officer, agent or employee to give
security for the faithful performance of his or her duties.
ARTICLE V
Stock
Section 5.1. Certificates. Every holder of stock in the Corporation shall
be entitled to have a certificate signed by or in the name of the Corporation by
the Chairman or Vice Chairman of the Board of Directors, if any, or the
President or a Vice President, and by the Treasurer or an Assistant Treasurer,
or the Secretary or an Assistant Secretary, of the Corporation, representing the
number of shares of stock in the Corporation owned by such holder. If such
certificate is manually signed by one officer or manually countersigned by a
transfer agent or by a registrar, any other signature on the certificate may be
a facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent or registrar before such certificate is
issued, it may be issued by the Corporation
- 15 -
<PAGE> 16
with the same effect as if such person were such officer, transfer agent or
registrar at the date of issue.
If the Corporation is authorized to issue more than one class of stock or
more than one series of any class, the powers, designations, preferences and
relative, participating, optional or other special rights of each class of stock
or series thereof and the qualifications or restrictions of such preferences
and/or rights shall be set forth in full or summarized on the face or back of
the certificate which the Corporation shall issue to represent such class or
series of stock, provided that, except as otherwise provided by law, in lieu of
the foregoing requirements, there may be set forth on the face or back of the
certificate which the Corporation shall issue to represent such class or series
of stock a statement that the Corporation will furnish without charge to each
stockholder who so requests the powers, designations, preferences and relative,
participating, optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such preferences
and/or rights.
Section 5.2. Lost, Stolen or Destroyed Stock Certificates; Issuance of New
Certificates. The Corporation may issue a new certificate of stock in the place
of any certificate theretofore issued by it, alleged to have been lost, stolen
or destroyed, and the Corporation may require the owner of the lost, stolen or
destroyed certificate, or such owner's legal representative, to give the
Corporation a bond sufficient to indemnify it against any claim that may be made
against it on account of the alleged loss, theft or destruction of any such
certificate or the issuance of such new certificate.
ARTICLE VI
Miscellaneous
Section 6.1. Fiscal Year. The fiscal year of the Corporation shall be
determined by the Board of Directors.
Section 6.2. Seal. The Corporation may have a corporate seal which shall
have the name of the Corporation inscribed thereon and shall be in such form as
may be
- 16 -
<PAGE> 17
approved from time to time by the Board of Directors. The corporate seal may be
used by causing it or a facsimile thereof to be impressed or affixed or in any
other manner reproduced.
Section 6.3. Waiver of Notice of Meetings of Stockholders, Directors and
Committees. Whenever notice is required to be given by law or under any
provision of the certificate of incorporation or these by-laws, a written waiver
thereof, signed by the person entitled to notice, whether before or after the
time stated therein, shall be deemed equivalent to notice. Attendance of a
person at a meeting shall constitute a waiver of notice of such meeting, except
when the person attends a meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business because the meeting
is not lawfully called or convened. Neither the business to be transacted at,
nor the purpose of, any regular or special meeting of the stockholders,
directors or members of a committee of directors need be specified in any
written waiver of notice unless so required by the certificate of incorporation
or these by-laws.
Section 6.4. Indemnification of Directors, Officers and Employees;
Insurance. The Corporation shall indemnify to the full extent permitted by law
any person made or threatened to be made a party to any action, suit or
proceeding, whether civil, criminal, administrative or investigative, by reason
of the fact that such person or such person's testator or intestate is or was a
director, officer or employee of the Corporation or serves or served at the
request of the Corporation any other enterprise as a director, officer or
employee. Expenses, including attorneys' fees, incurred by any such person in
defending any such action, suit or proceeding shall be paid or reimbursed by the
Corporation promptly upon receipt by it of an undertaking of such person to
repay such expenses if it shall ultimately be determined that such person is not
entitled to be indemnified by the Corporation. The rights provided to any person
by this by-law shall be enforceable against the Corporation by such person who
shall be presumed to have relied upon it in serving or continuing to serve as a
director, officer or employee as provided above. No amendment of this by-law
shall impair the rights of any person arising at any time with respect to events
occurring prior to such amendment. For purposes of this by-law, the
- 17 -
<PAGE> 18
term "Corporation" shall include any predecessor of the Corporation and any
constituent corporation (including any constituent of a constituent) absorbed by
the Corporation in a consolidation or merger; the term "other enterprise" shall
include any corporation, partnership, joint venture, trust or employee benefit
plan; service "at the request of the Corporation" shall include service as a
director, officer or employee of the Corporation which imposes duties on, or
involves services by, such director, officer or employee with respect to an
employee benefit plan, its participants or beneficiaries; any excise taxes
assessed on a person with respect to an employee benefit plan shall be deemed to
be indemnifiable expenses; and action by a person with respect to an employee
benefit plan which such person reasonably believes to be in the interest of the
participants and beneficiaries of such plan shall be deemed to be action not
opposed to the best interests of the Corporation.
The Corporation may maintain insurance, at its expense, to protect itself
and any director, officer, employee or agent of the Corporation or another
corporation, partnership, joint venture, trust or other enterprise against any
such expense, liability or loss, whether or not the Corporation would have the
power to indemnify such person against such expense, liability or loss under the
Delaware General Corporation Law.
Section 6.5. Interested Directors; Quorum
No contract or transaction between the Corporation and one or more of its
directors or officers, or between the Corporation and any other corporation,
partnership, association or other organization in which one or more of its
directors or officers are directors or officers, or have a financial interest,
shall be void or voidable solely for this reason, or solely because the director
or officer is present at or participates in the meeting of the Board of
Directors or committee thereof which authorizes the contract or transaction, or
solely because his or her or their votes are counted for such purpose, if: (1)
the material facts as to his or her relationship or interest and as to the
contract or transaction are disclosed or are known to the Board or the
committee, and the Board or committee in good faith authorizes the contract or
transaction by the affirmative votes of a majority of the
- 18 -
<PAGE> 19
disinterested directors, even though the disinterested directors be less than a
quorum; or (2) the material facts as to his or her relationship or interest and
as to the contract or transaction are disclosed or are known to the stockholders
entitled to vote thereon, and the contract or transaction is specifically
approved in good faith by vote of the stockholders; or (3) the contract or
transaction is fair as to the Corporation as of the time it is authorized,
approved or ratified, by the Board, a committee thereof or the stockholders.
Common or interested directors may be counted in determining the presence of a
quorum at a meeting of the Board of Directors or of a committee which authorizes
the contract or transaction.
Section 6.6. Form of Records. Any records maintained by the Corporation in
the regular course of its business, including its stock ledger, books of account
and minute books, may be kept on, or be in the form of, punch cards, magnetic
tape, photographs, microphotographs or any other information storage device,
provided that the records so kept can be converted into clearly legible form
within a reasonable time. The Corporation shall so convert any records so kept
upon the request of any person entitled to inspect the same.
Section 6.7. Amendment of By-Laws
The by-laws of the Corporation may be altered or repealed and new by-laws
may be adopted (i) at any annual or special meeting of stockholders, by the
affirmative vote of the holders of not less than a majority of the voting power
of all outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors, considered for purposes hereof as a
single class, provided, however, that any proposed alteration or repeal of, or
the adoption of any by-law inconsistent with, Sections 1.2, 1.11 and 1.12 of
Article I of the by-laws, Sections 2.1 and 2.2 of Article II of the by-laws, or
this sentence, by the stockholders shall require the affirmative vote of the
holders of not less than eighty percent (80%) of the voting power of all
outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors, considered for purposes hereof as a
single class, or (ii) by the affirmative vote of a majority of the board of
directors.
- 19 -
<PAGE> 1
Exhibit 10.14(A)
AMENDMENT TO MASTER LEASE AGREEMENT
THIS AMENDMENT TO MASTER LEASE AGREEMENT (this "Amendment"), dated as
of the 22nd day of March, 2000 among EACH OF THE ENTITIES IDENTIFIED ON EXHIBIT
A HERETO (collectively, "Landlord"), having offices c/o Vornado Realty Trust,
Park 80 West Plaza II, Saddle Brook, New Jersey 07663, Attention: Chief
Financial Officer, and AMERICOLD LOGISTICS, LLC, a Delaware limited liability
company ("Tenant"), having its principal offices at 10 Glenlake Parkway, Suite
800, Atlanta, Georgia 30328, Attention: Chief Executive Officer.
RECITALS
WHEREAS, Landlord and Tenant are parties to that certain Master Lease
Agreement, dated as of the 11th day of March, 1999, as amended by letter
amendment dated November 30, 1999 (collectively, with any and all amendments
thereto, the "Lease"), with respect to the Leased Property (as defined in the
Lease); and
WHEREAS, Landlord and Tenant desire to amend the Lease as set forth
herein.
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Landlord and Tenant hereby agree as follows:
1. All capitalized terms used herein shall have the meanings set forth
in the Lease, unless otherwise defined herein.
2. Exhibit A of the Lease is hereby deleted in its entirety and
replaced with Exhibit A attached hereto and incorporated herein by this
reference.
3. Section 1.1(i) of the Lease is hereby deleted in its entirety and
replaced with the following:
"(i) those certain tracts, pieces and parcels of land as more
particularly described in Exhibit A-1 attached hereto and made a part
hereof (collectively, the "Land");"
4. Exhibit A-1 of the Lease is hereby amended by adding the legal
descriptions labeled as Exhibit A-1 - continued which are attached hereto and
incorporated herein by this reference.
5. Exhibit 2.1(a) of the Lease is hereby deleted in its entirety and
replaced with Exhibit 2.1(a) attached hereto and incorporated herein by this
reference.
6. Section 3.1(a) of the Lease is hereby amended by replacing the first
indented
<PAGE> 2
paragraph in the Section with the following:
"(a) Minimum Rent:
For the period commencing on the Commencement Date through the day
before the Effective Date, the sum of TWENTY ONE MILLION THREE HUNDRED
THIRTY THOUSAND and 00/100 DOLLARS ($21,330,000.00) per annum.
For the period commencing on the Effective Date through December 31,
1999, the sum of TWENTY FOUR MILLION THREE HUNDRED SEVENTEEN THOUSAND
SIXTY-FOUR and 00/100 DOLLARS ($24,317,064.00) per annum.
For the period commencing January 1, 2000 through December 31, 2000,
the sum of TWENTY EIGHT MILLION EIGHT HUNDRED TWENTY EIGHT THOUSAND
THREE HUNDRED NINETY-EIGHT AND 00/100 DOLLARS ($28,828,398.00) per
annum.
For the period commencing January 1, 2001 through December 31, 2003,
the sum of TWENTY NINE MILLION FOUR HUNDRED NINETEEN THOUSAND SIX
HUNDRED NINETY SIX AND 00/100 DOLLARS ($29,419,696.00) per annum.
For the period commencing January 1, 2004 through December 31, 2008,
the sum of TWENTY NINE MILLION SIX HUNDRED SIXTY TWO THOUSAND NINE
HUNDRED TWENTY AND 00/100 DOLLARS ($29,662,920.00) per annum.
For the period commencing January 1, 2009 through February 28, 2014,
the sum of TWENTY NINE MILLION NINE HUNDRED EIGHTEEN THOUSAND THREE
HUNDRED FIVE AND 00/100 DOLLARS ($29,918,305.00) per annum."
6. For any partial Lease Year or partial Fiscal Year during the term of
the Lease, the annual Minimum Rent amount shall be prorated on a per diem basis
and a proportional amount of Minimum Rent shall be payable for such year. Any
such proration shall be based upon the actual number of days in such partial
year and a 365 day year.
7. As of the Effective Date, Exhibit 3.1(a) of the Lease is hereby
deleted in its entirety and replaced with Exhibit 3.1(a) attached hereto and
incorporated herein by this reference.
8. As of the Effective Date, Exhibit 3.1(b) of the Lease is hereby
deleted in its entirety and replaced with Exhibit 3.1(b) attached hereto and
incorporated herein by this reference.
-2-
<PAGE> 3
9. The parties acknowledge and agree that the effective date of this
Amendment is July 1, 1999 (the "Effective Date"). All modifications to the Lease
specified in this Amendment shall be deemed to take effect as of the Effective
Date unless otherwise set forth herein.
10. Except as expressly set forth in this Amendment, the Lease remains
unmodified and in full force and effect.
11. This Amendment shall be construed with respect to each Leased
Property under the substantive laws of the State in which such Leased Property
is situated.
[Signature pages follow]
-3-
<PAGE> 4
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed as of March 22, 2000.
LANDLORD:
VC FREEZER AMARILLO, L.P.
By: VC Freezer Omaha Amarillo L.L.C.
its general partner
By: VC Omaha Real Estate Holdings, L.L.C.,
its sole member
By: VC Omaha Holdings, L.L.C.
its sole member
By: /s/ Daniel F. McNamara
------------------------------
Name: Daniel F. McNamara
Title: Chief Executive Officer
VC FREEZER FREMONT L.L.C.
By: VC Omaha Real Estate Holdings, L.L.C.,
its sole member
By: VC Omaha Holdings, L.L.C.,
its sole member
By: /s/ Daniel F. McNamara
------------------------------
Name: Daniel F. McNamara
Title: Chief Executive Officer
[Signatures continued on following page]
-4-
<PAGE> 5
VC FREEZER GARDEN CITY L.L.C.
By: VC Omaha Real Estate Holdings, L.L.C.,
its sole member
By: VC Omaha Holdings, L.L.C.,
its sole member
By: /s/ Daniel F. McNamara
--------------------------------
Name: Daniel F. McNamara
Title: Chief Executive Officer
VC FREEZER PHOENIX L.L.C.
By: VC Omaha Real Estate Holdings, L.L.C.,
its sole member
By: VC Omaha Holdings, L.L.C.,
its sole member
By: /s/ Daniel F. McNamara
--------------------------------
Name: Daniel F. McNamara
Title: Chief Executive Officer
VC FREEZER SIOUX FALLS L.L.C.
By: VC Omaha Real Estate Holdings, L.L.C.,
its sole member
By: VC Omaha Holdings, L.L.C.,
its sole member
By: /s/ Daniel F. McNamara
--------------------------------
Name: Daniel F. McNamara
Title: Chief Executive Officer
[Signatures continued on following page]
-5-
<PAGE> 6
VC FREEZER SPRINGDALE L.L.C.
By: VC Omaha Real Estate Holdings, L.L.C.,
its sole member
By: VC Omaha Holdings, L.L.C.,
its sole member
By: /s/ Daniel F. McNamara
--------------------------------
Name: Daniel F. McNamara
Title: Chief Executive Officer
VC FREEZER RUSSELLVILLE L.L.C.
By: VC Omaha Real Estate Holdings, L.L.C.,
its sole member
By: VC Omaha Holdings, L.L.C.,
its sole member
By: /s/ Daniel F. McNamara
--------------------------------
Name: Daniel F. McNamara
Title: Chief Executive Officer
VC FREEZER TEXARKANA L.L.C.
By: VC Omaha Real Estate Holdings, L.L.C.,
its sole member
By: VC Omaha Holdings, L.L.C.,
its sole member
By: /s/ Daniel F. McNamara
--------------------------------
Name: Daniel F. McNamara
Title: Chief Executive Officer
[Signatures continued on following page]
-6-
<PAGE> 7
CARMAR FREEZERS RUSSELLVILLE L.L.C.
By: VC Omaha Real Estate Holdings, L.L.C.,
its sole member
By: VC Omaha Holdings, L.L.C.,
its sole member
By: /s/ Daniel F. McNamara
--------------------------------
Name: Daniel F. McNamara
Title: Chief Executive Officer
VC FREEZER FORT WORTH, L.L.C.
By: VC Omaha Real Estate Holdings, L.L.C.,
its sole member
By: VC Omaha Holdings, L.L.C.,
its sole member
By: /s/ Daniel F. McNamara
--------------------------------
Name: Daniel F. McNamara
Title: Chief Executive Officer
CARMAR GROUP, INC.
By: /s/ Daniel F. McNamara
--------------------------------
Name: Daniel F. McNamara
Title: Chief Executive Officer
FREEZER SERVICES-KENTUCKY, INC.
By: /s/ Daniel F. McNamara
--------------------------------
Name: Daniel F. McNamara
Title: Chief Executive Officer
[Signatures continued on following page]
-7-
<PAGE> 8
VC FREEZER MASSILLON, L.L.C.
By: VC Omaha Real Estate Holdings, L.L.C.,
its sole member
By: VC Omaha Holdings, L.L.C.,
its sole member
By: /s/ Daniel F. McNamara
--------------------------------
Name: Daniel F. McNamara
Title: Chief Executive Officer
VC FREEZER STRASBURG, L.L.C.
By: VC Omaha Real Estate Holdings, L.L.C.,
its sole member
By: VC Omaha Holdings, L.L.C.,
its sole member
By: /s/ Daniel F. McNamara
--------------------------------
Name: Daniel F. McNamara
Title: Chief Executive Officer
VC FREEZER BABCOCK, L.L.C.
By: VC Omaha Real Estate Holdings, L.L.C.,
its sole member
By: VC Omaha Holdings, L.L.C.,
its sole member
By: /s/ Daniel F. McNamara
--------------------------------
Name: Daniel F. McNamara
Title: Chief Executive Officer
[Signatures continued on following page]
-8-
<PAGE> 9
TENANT:
AMERICOLD LOGISTICS LLC
By: /s/ Fred Beilstein
-------------------------------
Name: Fred Beilstein
Title: Executive Vice President
-9-
<PAGE> 10
EXHIBIT A
List of Fee Owners
VC Freezer Amarillo, L.P.
VC Freezer Fremont L.L.C.
VC Freezer Garden City L.L.C.
VC Freezer Phoenix L.L.C.
VC Freezer Sioux Falls L.L.C.
VC Freezer Springdale L.L.C.
VC Freezer Russellville L.L.C.
VC Freezer Texarkana L.L.C.
Carmar Freezers Russellville L.L.C.
VC Freezer Fort Worth L.L.C.
Carmar Group, Inc.
Freezer Services-Kentucky, Inc.
VC Freezer Massillon, L.L.C.
VC Freezer Strasburg, L.L.C.
VC Freezer Babcock, L.L.C.
<PAGE> 11
EXHIBIT A-1
Legal Descriptions of the Land
See attached pages. [Note: Legal descriptions for all properties have been
omitted.]
Amarillo
Carthage
Fort Worth
Freemont
Garden City
Phoenix
Sioux Falls
Texarkana
Russellville
Springdale
Valley
Seebre
Massillon
Strasburg
Babcock
<PAGE> 12
EXHIBIT 2.1(a)
<TABLE>
<CAPTION>
Leased Property Release Amount
<S> <C>
Amarillo $17,313,382
Carthage $68,630,824
Fort Worth $6,160,800
Freemont $15,138,555
Garden City $24,547,864
Phoenix $14,799,682
Sioux Falls $22,328,000
Texarkana $27,533,509
Russellville $23,931,982
Springdale $23,560,773
Valley $20,000,000
Seebre $15,702,555
Massillon $15,562,213
Strasburg $24,500,000
Babcock $7,426,175
----------
$327,136,314
</TABLE>
<PAGE> 13
EXHIBIT 3.1(a)
<TABLE>
<CAPTION>
Leased Property Prorations among Leased Properties
<S> <C>
Amarillo 5.29%
Carthage 20.98%
Fort Worth 1.88%
Freemont 4.63%
Garden City 7.50%
Phoenix 4.52%
Sioux Falls 6.83%
Texarkana 8.42%
Russellville 7.32%
Springdale 7.20%
Valley 6.11%
Seebre 4.80%
Massillon 4.76%
Strasburg 7.49%
Babcock 2.27%
-----------------
100.00%
</TABLE>
<PAGE> 14
EXHIBIT 3.1(b)
CALCULATION OF PERCENTAGE RENT AS OF THE EFFECTIVE DATE
1. For all the Leased Property (other than the Excluded Facilities), the
Percentage Rent with respect to each Lease Year shall be calculated annually as
follows:
(a) for the period from the Effective Date through December 31,
2003, the product of (i) 43.25% times (ii) all Receipts
(except for Receipts from the Excluded Facilities) for the
applicable Lease Year in excess of the Breakpoint; and
(b) for the period from January 1, 2004 through December 31, 2008,
the product of (i) 46.45% times (ii) all Receipts (except for
Receipts from the Excluded Facilities) for the applicable
Lease Year in excess of the Breakpoint; and
(c) for the period from January 1, 2009 through February 28, 2014,
the product of (i) 50.30% times (ii) all Receipts (except for
Receipts from the Excluded Facilities) for the applicable
Lease Year in excess of the Breakpoint.
As used herein, the "Breakpoint" with respect to any Lease Year shall be
$39,321,241.00. 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 the Lease.
As used herein, the "Excluded Facilities" shall mean the facilities comprising a
portion of the Leased Property which are currently known as Babcock, Carthage,
Massillon and Strasburg.
2. For the facility currently known as Babcock, Percentage Rent with respect to
each Lease Year shall be calculated annually as follows:
(a) for the period from the Effective Date through December 31,
1999, the product of (i) 76.00% times (ii) all Receipts with
respect to Babcock for the applicable Lease Year in excess of
$940,066; and
(b) for the period from January 1, 2000 through December 31, 2001,
the product of (i) 64.00% times (ii) all Receipts with respect
to Babcock for the applicable Lease Year in excess of
$1,116,328; and
(c) for the period from January 1, 2002 through February 28, 2014,
the product of (i) 70.00% times (ii) all Receipts with respect
to Babcock for the applicable Lease Year in excess of
$1,020,643.
<PAGE> 15
3. For the facility currently known as Carthage, Percentage Rent with respect to
each Lease Year shall be calculated annually as follows:
(a) for the period from the Effective Date through December 31,
1999, the product of (i) 43.25% times (ii) all Receipts with
respect to Carthage for the applicable Lease Year in excess of
$9,996,759; and
(b) for the period from January 1, 2000 through December 31, 2001,
the product of (i) 29.65% times (ii) all Receipts with respect
to Carthage for the applicable Lease Year in excess of
$28,761,759; and
(c) for the period from January 1, 2002 through December 31, 2003,
the product of (i) 30.43% times (ii) all Receipts with respect
to Carthage for the applicable Lease Year in excess of
$26,707,978; and
(d) for the period from January 1, 2004 through December 31, 2008,
the product of (i) 32.15% times (ii) all Receipts with respect
to Carthage for the applicable Lease Year in excess of
$26,707,978; and
(e) for the period from January 1, 2009 through February 28, 2014,
the product of (i) 34.23% times (ii) all Receipts with respect
to Carthage for the applicable Lease Year in excess of
$26,707,978.
4. For the facility currently known as Massillon, Percentage Rent with respect
to each Lease Year shall be calculated annually as follows:
(a) for the period from the Effective Date through December 31,
1999, no Percentage Rent shall be due; and
(b) for the period from January 1, 2000 through February 28, 2014,
the product of (i) 40.35% times (ii) all Receipts with respect
to Massillon for the applicable Lease Year in excess of
$5,694,270.
5. For the facility currently known as Strasburg, Percentage Rent with respect
to each Lease Year shall be calculated annually as follows:
(a) for the period from the Effective Date through December 31,
1999, the product of (i) 47.00% times (ii) all Receipts with
respect to Strasburg for the applicable Lease Year in excess
of $2,671,021; and
(b) for the period from January 1, 2000 through February 28, 2014,
the product of (i) 47.00% times (ii) all Receipts with respect
to Strasburg for the applicable Lease Year in excess of
$5,342,053.
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This schedule contains summary financial information extracted from the
Company's unaudited financial statements for the three months ended March 31,
2000 and is qualified in its entirety by reference to such financial statements.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-2000
<PERIOD-END> MAR-31-2000
<CASH> 2,441,203
<SECURITIES> 0
<RECEIVABLES> 0
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 0
<PP&E> 0
<DEPRECIATION> 0
<TOTAL-ASSETS> 21,321,579
<CURRENT-LIABILITIES> 0
<BONDS> 10,586,896
0
0
<COMMON> 40,686
<OTHER-SE> 8,790,271
<TOTAL-LIABILITY-AND-EQUITY> 21,321,579
<SALES> 0
<TOTAL-REVENUES> 41,778
<CGS> 0
<TOTAL-COSTS> 0
<OTHER-EXPENSES> 937,349
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 316,000
<INCOME-PRETAX> (6,134,992)
<INCOME-TAX> 0
<INCOME-CONTINUING> 0
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (5,527,628)
<EPS-BASIC> (1.36)
<EPS-DILUTED> (1.36)
</TABLE>
