1
Exhibit 10.4
ASSIGNMENT AND ASSUMPTION OF MASTER LEASE
THIS ASSIGNMENT AND ASSUMPTION OF MASTER LEASE ("Assignment") is made and
entered into as of this 11th day of March, 1999, by and between URS Logistics,
Inc., a Delaware corporation ("Assignor") and AmeriCold Logistics II, LLC, a
Delaware limited liability company ("Assignee").
W I T N E S S E T H:
WHEREAS, Assignor is in the business of providing refrigerated, frozen and
dry warehouse storage services, logistics, distribution and transportation
services and other services (the "Business") on a contract basis for its
customers; and
WHEREAS, Assignor and Vornado Crescent Logistics Operating Partnership, a
Delaware general partnership ("Vornado"), have entered into that certain Asset
Purchase Agreement, dated as of March 9, 1999 (the "Purchase Agreement"),
pursuant to which Vornado has agreed to purchase from Assignor, and Assignor has
agreed to sell to Vornado, substantially all of the tangible and intangible
personal property assets of Assignor used or held for use in Assignor's
Business, as described in the Purchase Agreement; and
WHEREAS, Assignor is a party to that certain Master Lease Agreement, dated
April 22, 1998, by and between URS Real Estate, L.P., as landlord, and Assignor,
as tenant (the "Master Lease") relating to certain real property and/or
refrigerated warehouse facilities which Assignor uses in its operation of the
Business; and
WHEREAS, in conjunction with the transaction contemplated by the Purchase
Agreement, Vornado has required that Assignor transfer and assign to Assignee
all of the right, title and interest of Assignor in, to and under the Master
Lease (as such may have been amended, extended, renewed or supplemented from
time to time), and Assignor desires and intends by this instrument to assign to
Assignee all of Assignor's right, title and interest in, to and under the Master
Lease.
NOW, THEREFORE, in consideration of the forgoing premises, the
consideration set forth in the Purchase Agreement, the covenants hereafter
contained and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto hereby covenant and agree
as follows:
1. Assignment by Assignor. Assignor hereby assigns, transfers, sets over,
grants and conveys to Assignee, its successors and assigns, all of the right,
title, and interest of Assignor in and to the Master Lease, as such may have
been amended, extended, renewed or supplemented from time to time.
2. Assumption by Assignee. Assignee hereby accepts this Assignment and as
a part of the consideration therefor assumes all of the responsibilities and
obligations of Assignor arising and to be
2
performed after the date hereof relating to the Master Lease.
3. Further Assurances. Assignor and Assignee shall execute such other
documents or instruments and/or take such other actions and make such other
deliveries as may be necessary to assign the Master Lease to Assignee or to
otherwise effect the transactions contemplated by this Assignment. Assignor
covenants and agrees that in the event that (i) any rights, title or interest in
and to the Master Lease covered in this Assignment cannot be transferred or
assigned by Assignor without the consent of or notice to a third party and in
respect of which any necessary consent or notice has not as of the date hereof
been given or obtained or (ii) any rights, title or interest in and to the
Master Lease are non-assignable by their nature and will not pass by this
Assignment, the beneficial interest in and to the same will in any event pass to
Assignee, and Assignor covenants and agrees (a) to hold, and hereby declares
that Assignor holds such rights, title or interest in trust for, and for the
benefit of, Assignee, (b) to use all reasonable means to obtain and to secure
such consents and give such notice as may be required to effect a valid transfer
or transfers of rights, title or interest in and to the Master Lease and (c) to
make or complete such transfer or transfers of title as soon as reasonably
possible.
4. Environmental Indemnity Provisions.
Assignor hereby agrees to hold harmless Assignee and/or any
successors in interest, and the respective directors, officers, employees and
agents of any of the foregoing from and against any losses, claims, damages
(including consequential damages), penalties, fines, liabilities (including
strict liability), costs (including cleanup and recovery costs), and expenses
(including expenses of litigation and attorneys' fees) incurred by Assignee or
any other indemnitee or assessed against the property covered by the Master
Lease by virtue of any claim or lien by any governmental or quasi-governmental
unit, body or agency, or any third party, for cleanup costs or other costs
pursuant to any environmental laws, but only to the extent that the same relate
to the period prior to the date hereof.
5. Miscellaneous Provisions.
(a) Non-Waiver; Modification. Except as expressly provided for
herein, Assignor and Assignee each hereby agree that nothing contained in this
Assignment shall be deemed or construed to waive or to modify the terms of the
Master Lease.
(b) Reliance. Any individual, partnership, corporation or other
entity may rely, without further inquiry, upon the powers and rights herein
granted to Assignee and upon any notarization, certification, verification or
affidavit by any notary public of any state relating to the authorization,
execution and delivery of this Assignment or to the authenticity of any copy,
conformed or otherwise, hereof.
(c) Assignment and Binding Agreement. This Assignment shall inure to
the benefit of and be binding upon the parties hereto and their respective
heirs, personal representatives, successors and assigns.
-2-
3
(d) Counterparts. This Assignment may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(e) Governing Law and Submission to Jurisdiction. Except as
otherwise expressly provided herein, this Assignment shall be governed by and
construed under the laws of the State of Delaware without giving effect to
otherwise applicable principles of conflicts of laws.
(f) Pronouns; Captions. All personal pronouns in this Assignment,
whether used in the masculine, feminine or neuter gender shall include all other
genders, and the singular shall include the plural and the plural shall include
the singular. All captions in this Assignment are intended solely for the
convenience of the parties, and none shall be deemed to affect the meaning or
construction of any provision hereof.
-3-
4
IN WITNESS WHEREOF, the parties hereto have caused the execution and
sealing of this Assignment as of the day and year first written above.
ASSIGNOR:
URS LOGISTICS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Its: President
[CORPORATE SEAL]
ASSIGNEE:
AMERICOLD LOGISTICS II, LLC
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ III (SEAL)
-------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ III
Its: Senior Vice President