Exhibit 10.30


 


FORM OF


 


NON-COMPETITION AND SERVICES
AGREEMENT


 


THIS AGREEMENT (this “Agreement”) is made effective as of [ · ], 2010.


 


BETWEEN:


 


VERSACOLD INTERNATIONAL CORPORATION, a British Columbia company having an
office at 2115 Commissioner Street, Vancouver, British Columbia, V5L 1A5


 


(“Versacold”)


 


AND


 


AMERICOLD REALTY OPERATING
PARTNERSHIP, LP,
a Delaware limited partnership having an office at 10 Glenlake Parkway, South
Tower, Suite 800, Atlanta, Georgia 
30328


 


(“Americold”)


 


AND,
FOR PURPOSES OF SECTION 7


 


VERSACOLD GROUP SERVICES ULC, an Alberta corporation with its
principal place of business at 2115 Commissioner Street, Vancouver, Canada
V5L1A6


 


(“VGS”)


 


WHEREAS:


 


A.                                                                                   Versacold is the directly held and wholly
owned subsidiary of Eimskip Tango ehf., a holding company for Versacold and its
Subsidiaries, and Versacold and its Subsidiaries carry on a cold storage and
logistics business in Canada;


 


B.                                                                                     Americold is the directly held and wholly
owned subsidiary of Americold Realty Trust, a holding company for Americold and
its Subsidiaries, Americold and its Subsidiaries carry on a cold storage and
logistics business in, among other places, the United States, including the
cold storage and logistics businesses acquired from Versacold by a Subsidiary of
Americold, ART Icecap Holdings LLC, a Delaware limited liability company (the “Acquirer”), pursuant to 


 

















 


that certain contribution
agreement by and among Versacold, Acquirer and Versacold Logistics Canada Inc.,
dated [ · ], 2010 (the “Contribution Agreement”);


 


C.                                                                                     The execution and delivery of this
Agreement is a condition to the closing of the transactions described in the
Contribution Agreement;


 


D.                                                                                    Versacold and Americold have each agreed
to provide (and to cause their respective Subsidiaries to provide) to the other
party (and its respective Subsidiaries) certain transitional and other services
on the terms and subject to the conditions set forth in this Agreement;


 


E.                                                                                      As a material inducement to Acquirer’s
entry into and delivery of the Contribution Agreement and this Agreement,
Versacold has agreed to provide Americold with a covenant not to compete on the
terms set out in this Agreement; and


 


F                                                                                         As a material inducement to Versacold’s
entry into and delivery of the Contribution Agreement and this Agreement,
Americold has agreed to provide Versacold with a right of first look pursuant
to the terms set out in this Agreement.


 


NOW THEREFORE THIS
AGREEMENT WITNESSES THAT in consideration of the premises and other good and
valuable consideration (the receipt and sufficiency of which is hereby
acknowledged) the parties hereto covenant and agree as follows:


 


1.0                                                                                 DEFINITIONS


 


1.1                                                                                 In addition to terms defined elsewhere in
this Agreement, the following terms have the meanings set forth below:


 


(a)                                  “Controls” means,
with respect to any entity, direct or indirect legal or beneficial ownership of
more than 50% of the issued and outstanding equity securities or voting power
of such entity, provided, however, that, notwithstanding the preceding, Yucaipa
shall be deemed for purposes only of this Agreement to “Control” Versacold so
long as Yucaipa has the right to acquire 51% of the issued and outstanding
share capital of Eimskip Tango ehf. pursuant to that certain Call Option
Agreement dated June 29, 2009, regardless of whether the conditions
precedent to such acquisition set forth in such Call Option Agreement have been
satisfied.


 


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(b)                                 “Designated Business”
means any temperature-controlled warehouse and/or logistics business or
activity.


 


(c)                                  “Service” and “Services” means any of the Americold Services and/or the
Versacold Services, all of which such Services shall be provided to the
applicable party or its Subsidiaries on a non-exclusive basis.


 


(d)                                 “Subsidiary” and
“Subsidiaries” of any entity means any
other entity (currently or subsequently existing) in which the first entity,
directly or indirectly, owns or controls legal or beneficial ownership of more
than 50% of the issued and outstanding equity securities or voting power.


 


(e)                                  “Territory”
means any country in which, as of the date of the Contribution Agreement,
Americold (or any of its Subsidiaries) or any Formation Entity (as defined in
the Contribution Agreement) engages in or has prepared to engage in the Designated
Business, provided, however, that in no event shall Canada be deemed to be
included in the “Territory.”


 


(f)                                    “Versacold Marks”
means any and all trademarks, service marks and logos (whether or not
registered) owned, used or held for use, as of the date hereof, by any of the
Formation Entities (as defined in the Contribution Agreement), including,
without limitation, VERSACOLD, FIRST IN COLD, VERSACOLD LOGISTICS SERVICES and
other marks associated with the VERSACOLD brand.


 


(g)                                 “Yucaipa” means
Yucaipa American Alliance Fund I, LP, Yucaipa American Alliance (Parallel) Fund
I, LP, Yucaipa American Alliance Fund II, L.P., Yucaipa American Alliance
(Parallel) Fund II, L.P., Yucaipa Corporate Initiatives Fund I, LP and/or any
affiliate of any of the foregoing. For purposes only of the foregoing
definition of “Yucaipa,” “affiliate”
means any entity which directly or
indirectly controls, is controlled by, or is under common control with any of
the foregoing Yucaipa partnerships.  For
purposes only of the foregoing definition of “affiliate,” “controls,”
“controlled” and “common
control” means (i) the power to direct or cause the direction
of the management and policies of a person, whether through the ownership of
voting securities, contract or otherwise or (ii) the power to elect or
appoint at least 50% of the directors, managers, general partners or persons
exercising similar authority with respect to such person.


 


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2.0                                                                                 DURATION OF
PERFORMANCE OF SERVICES


 


2.1                                                                                 Each party hereto shall provide or cause
to be provided the Services until, with respect to any particular Service, the
earliest to occur of:


 


(a)                                  if such Service is designated a “Transition
Service” on Schedule “A” or Schedule “B”, the third anniversary of the date hereof;


(b)                                 if such Service is designated a “Shared
Service” on Schedule “A” or Schedule “B”, that number of days (up to 180 days) after the
date on which Yucaipa does not Control both Versacold and Americold as the
parties may mutually agree;


(c)                                  the termination of such particular
Service by the recipient of such Service upon 30 days’ written notice to the
provider of such Service; and


(d)                                 the termination of the Term in accordance
with Section 12.1.


 


2.2                                                                                 For purposes of clarity, the termination
of any party’s obligation to perform or cause to be performed any one
particular Service shall not, taken alone, constitute or cause a termination of
that party’s (or the other party’s) obligation to perform or cause to be
performed any other Service hereunder.


 


3.0                                                                                 SERVICES


 


3.1                                                                                 Americold agrees to provide (and cause
its Subsidiaries to provide) to Versacold and Versacold’s Subsidiaries the
services set out in Schedule “A”
attached hereto (the “Americold Services”).


 


3.2                                                                                 Versacold agrees to provide (and cause
its Subsidiaries to provide) to Americold and Americold’s Subsidiaries the
services set out in Schedule “B”
attached hereto (the “Versacold Services”).


 


3.3                                                                                 So long as Yucaipa Controls both
Versacold and Americold, if either party desires additional services from the
other party (or its respective Subsidiaries) which are not expressly set forth
in this Agreement (including any schedule hereto), the parties shall negotiate
reasonably and in good faith to reach agreement with respect to the scope and fees
of such services.  For purposes of
clarity, neither party will be obligated to perform or pay for any such service
without an express written agreement to that effect by both parties.


 


4.0                                                                                 STRATEGIC
COOPERATION


 


4.1                                                                                 The parties acknowledge that Versacold
and Americold (including their respective Subsidiaries) operate their
businesses for the most part in separate and distinct regions.  However, the parties acknowledge that they
and their respective Subsidiaries have 


 


4

















 


similar business
strategies and provide similar services to their respective customers;
therefore, the parties hereby agree, so long as Yucaipa Controls both Versacold
and Americold and except to the extent prohibited by applicable law, to provide
(and to cause their respective Subsidiaries to provide) strategic cooperation
to each other for the mutual development of their respective businesses
generally and in accordance with the terms of this Agreement.


 


4.2                                                                                 In furtherance of the foregoing, so long
as Yucaipa Controls both Versacold and Americold, the parties agree (i) to
reasonably consult with and assist one another, to the fullest extent permitted
by applicable law, in connection with the adoption of any new initiatives or
best practices; and (ii) to reasonably cooperate to provide available
warehouse space and existing related logistics and other services on a
preferred basis to one another’s (and their respective Subsidiaries’) warehouse
tenants and customers worldwide.


 


5.0                                                                                 LIMITATION
OF LIABILITY


 


5.1                                                                                 Each recipient of Services hereunder
acknowledges and accepts that it shall have no cause of action or claim against
the provider of Services hereunder for any harm or liability in connection with
such Services, except to the extent that such provider has engaged in willful
misconduct.  Without limitation of the
foregoing, in no event shall any party be liable under this Agreement with
respect to any harm or liability in connection with the provision or failure to
provide any particular Service for an amount in excess of the actual amount
received by or due to such party hereunder for that specific Service during the
three (3) month period prior to the provision of the specific Service that
gave rise to such liability.  For
purposes of clarity, nothing herein shall limit any party’s obligation to pay
all amounts due and owed hereunder to be paid or reimbursed with respect to
Services received under this Agreement.


 


5.2                                                                                 NO PARTY SHALL BE LIABLE UNDER THIS
AGREEMENT FOR ANY PUNITIVE, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR
OTHER INDIRECT DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, REVENUE OR
SAVINGS, LOSS OF BUSINESS OR ECONOMIC ADVANTAGE, WHETHER IN CONTRACT, TORT OR
OTHERWISE (INCLUDING, WITHOUT LIMITATION, BREACH OF WARRANTY, NEGLIGENCE AND
STRICT LIABILITY), EVEN IF SUCH PARTY IS AWARE OF OR IS NOTIFIED OF THE
POSSIBILITY OF SUCH DAMAGES WHETHER ARISING UNDER THIS AGREEMENT OR OTHERWISE
AT LAW OR IN EQUITY.


 


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5.3                                                                                 NEITHER PARTY HERETO MAKES ANY GUARANTEE,
REPRESENTATION OR WARRANTY OF ANY KIND (WHETHER EXPRESS OR IMPLIED) REGARDING
ANY OF THE SERVICES PROVIDED HEREUNDER, AND EXPRESSLY DISCLAIMS ALL OTHER
GUARANTEES, REPRESENTATIONS, AND WARRANTIES OF ANY NATURE WHATSOEVER, WHETHER
STATUTORY, ORAL, WRITTEN, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION,
ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ANY
WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE.


 


6.0                                                                                 STANDARD


 


6.1                                                                                 Each party shall use its reasonable
efforts to provide (or cause to be provided) its respective Services to the
other party (and its respective Subsidiaries) at a standard substantially
consistent with the standard that such party (or its applicable Subsidiary)
then provides similar or comparable services to itself or its respective
Subsidiaries.


 


7.0                                                                                 TRADEMARK
LICENSE


 


7.1                                                                                 VGS hereby grants to Americold (and its
Subsidiaries) the sole and exclusive royalty-free, fully paid up right and
license (with rights to sublicense) to use in any manner the Versacold Marks
anywhere in the Territory in connection with the Designated Business.  For purposes of clarity, VGS agrees not to
use or permit others to use, directly or indirectly, in any manner the
Versacold Marks anywhere in the Territory. 
Such right and license shall continue during the Term but shall be
subject to earlier termination on a country-by-country basis in the event that
neither Americold nor any of its Subsidiaries has used in any manner (and has
not had a bona fide intent to use in any manner) the Versacold Marks in such
country for any consecutive period of 24 months or more.  Once such license in terminated in any
specific country in accordance with the foregoing sentence, it shall not be
reinstated except with VGS’s prior written consent, not to be unreasonably
withheld.  All goodwill in and to the
Versacold Marks shall belong to and inure to the benefit of VGS.  Americold acknowledges that VGS is the owner
of the Versacold Marks and that it retains all ownership rights thereon.  VGS represents and warrants to Americold that
it has full right to enter into this Agreement and grant the rights and
benefits granted to Americold and its Subsidiaries hereunder, without violating,
breaching or conflicting with the rights or interests of any other person or
entity.  During the term of the license,
VGS shall maintain and protect the Versacold Marks in a manner consistent with
VGS’s past practice, but in no event in a manner less than the greater of
reasonable care and the manner in which VGS maintains and protects its
trademark/service mark portfolio. 
Americold shall use 


 


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and require its
Subsidiaries to use the Versacold Marks in a manner of quality consistent with
the quality of goods and services currently associated with the Versacold
Marks.  Americold shall reasonably
cooperate and cause its Subsidiaries to reasonably cooperate with VGS in order
to maintain the requisite level of quality control necessary for VGS to maintain
its rights in and to the Versacold Marks.


 


8.0                                                                                 DIRECTION;
RESPONSIBLE PARTIES


 


8.1                                                                                 Each party hereto shall designate a
senior level representative as its liaison and responsible person under this
Agreement (each a “Representative”)
which such initial representatives are named on Schedule “D”,
attached hereto, and who may be changed from time to time at the discretion of
each party with respect to its own Representative effective upon written notice
to the other party.  Each party may treat
the Representative of the other party as having full authority to bind such
other party for all purposes (other than sending notices pursuant to Section 12
hereto) under this Agreement.  It is
agreed and understood that each party at all times will be entitled to rely on
and to act upon the instructions or directions received from the other party’s
Representative and without limiting the generality of the foregoing, the
receipt by a party of instructions or directions from the other party’s
Representative will constitute full and sufficient authority for a party to act
in accordance therewith.  No party shall
be liable to the other party for omissions or failures to act resulting from
the other party’s Representative’s directions to delay or abstain from taking
any specific actions or from the other party’s Representative’s failure to give
directions in accordance with this Agreement with respect to the taking or
abstention from taking any specific action.


 


9.0                                                                                 COSTS


 


9.1                                                                                 Each party shall compensate the other
party hereto for the services rendered by such other party in connection with
this Agreement as provided on Schedule “C” to
this Agreement within thirty (30) days of the date of receipt of such other
party’s invoice.  If a party has a good
faith dispute regarding a payment obligation, it shall promptly notify the
other party in writing, timely pay the undisputed portion of the invoice, and
promptly confer with it in good faith to resolve such dispute.  Except solely as to the good faith
withholding of the disputed portion of an invoice, no party may withhold,
offset, deduct or setoff any monies owed to another party during the pendency of any dispute.  Each party acknowledges that payments not
received when due will cause the other party to incur costs not contemplated by
this Agreement, the amount of which is extremely difficult to ascertain.  Therefore, the parties agree that if payment
for any undisputed portion of an invoice is not received within the thirty (30)
day payment terms after receipt of the applicable invoice, interest shall
accrue on the amount payable 


 


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at
the rate of ten percent (10%) per annum (or at the maximum rate of interest
allowable by law, whichever is less) from the date delinquent until paid in
full.


 


9.2                                                                                 All sales, use, VAT and other taxes,
levies and charges (other than taxes based on net income or net profits)
imposed by applicable taxing authorities on the provision of any Service (or
any other service hereunder) shall be borne by the recipient of such Service
(or such other service).  If the provider
thereof (or any of its Subsidiaries) is required to pay such taxes, levies or
charges in connection with the provision of such Services (or services), the
recipient shall promptly reimburse the provider or its designee.  The rates set forth in this Agreement for the
Services (or other services) do not include any such taxes, levies or charges.


 


9.3                                                                                 Except as otherwise described in a
particular Schedule hereto (i) all amounts payable to Americold (or its
Subsidiaries) hereunder shall be paid in U.S. Dollars and (ii) all amounts
payable to Versacold or its Subsidiaries hereunder shall be paid in Canadian
Dollars, in each case by wire transfer of immediately available funds to an
account designated in writing by the service provider.


 


9.4                                                                                 All payment obligations hereunder shall
survive the Term of this Agreement, if necessary, and shall continue until all
payment disputes have been resolved and all such payment obligations have been
satisfied in full.


 


10.0                                                                           NON-COMPETITION;
FIRST LOOK


 


10.1                                                                           As a material inducement to Acquirer
entering into the Contribution Agreement, Versacold agrees that, so long as
Yucaipa Controls both Versacold and Americold, it will not, without the prior
written consent of Americold, directly or indirectly (including through any of
its Subsidiaries), engage in, prepare to engage in, assist or advise any person
or entity (other than Services rendered pursuant to this Agreement) with
respect to, or otherwise invest in, acquire or hold any interest in any
Designated Business anywhere in the world other than Canada.


 


10.2                                                                           The parties acknowledge that, in the
course of providing and receiving Services under this Agreement, Americold will
have access to and receive highly confidential and proprietary information
about the business, operations and prospects of Versacold and its Subsidiaries
and that it will be very difficult, if not impossible, to discern whether any
specific item of information regarding the Designated Business in Canada
constitutes or includes any of Versacold’s Confidential Information.  Therefore, in order to minimize disputes
between the parties, Americold agrees that, so long as Yucaipa Controls both
Versacold and Americold, if 


 


8

















 


Americold proposes,
directly or indirectly, to engage or participate (whether actively or
passively) in any Designated Business anywhere in Canada (other than the
continuation of any such activities conducted by Americold or its Subsidiaries
in Canada as of the date hereof) (each a “Canadian Opportunity”),
then Americold shall, and shall cause any such Subsidiary, to first offer such
Canadian Opportunity to Versacold pursuant to a written notice (a “First Look Notice”), provided, however, that, in the event
any Canadian Opportunity is subject to a bona fide confidentiality requirement
that prohibits Americold from disclosing such opportunity to Versacold,
Americold shall exercise its reasonable efforts to obtain a waiver or release
of such requirement as it pertains to Versacold and its Subsidiaries, but, if
Americold is unsuccessful in obtaining such a waiver or release, such
opportunity shall not be subject to the first look requirements described
herein.  Subject to foregoing proviso,
each First Look Notice shall set forth all material terms of the applicable
Canadian Opportunity, including, without limitation, financial terms, parties,
assets, properties, and projections. 
Americold shall also provide to Versacold all other information reasonably
requested by Versacold with respect to such Canadian Opportunity.  Versacold shall have a period of 60 days from
receipt of the First Look Notice (the “First Look Review Period”)
to review the First Look Notice and elect to pursue the Canadian Opportunity in
its sole discretion.  If after the First
Look Review Period, Versacold elects not to pursue such Canadian Opportunity,
or Versacold delivers earlier written notice electing not to pursue such
Canadian Opportunity (the “First Look End Date”),
Americold shall be free to pursue such Canadian Opportunity on the same
material terms and conditions as set forth in the applicable First Look
Notice.  If Americold or any of its
Subsidiaries fails within 60 days after the First Look End Date to take substantial
financial steps to pursue such Canadian Opportunity, then Americold shall
resubmit such Canadian Opportunity to Versacold for its consideration in
accordance with the procedures set forth in this Section 10.2.  For purposes of clarity, if any material term
of any Canadian Opportunity identified in any First Look Notice changes from
the description set forth in the First Look Notice, Americold shall resubmit
such Canadian Opportunity to Versacold in accordance with the procedures set
forth herein, which shall re-start the First Look Review Period clock.


 


10.3                                                                           Notwithstanding anything to the contrary
in the foregoing, neither party shall be deemed to be in violation of any of
its obligations under this Section 10 by reason of such party’s ownership
of not more than 5% of the equity securities of any publicly-traded company
provided that such securities are held as a passive investment and such party
does not actively participate in the governance of such publicly-traded
company.


 


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11.0                                                                           CONFIDENTIAL
INFORMATION


 


11.1                                                                           The parties recognize that they will
disclose to one another non-public, confidential and/or proprietary information
(“Confidential Information”) regarding
themselves and their respective Subsidiaries, including in connection with
performing Services hereunder.  Each
party agrees to use the other party’s (and the other party’s Subsidiaries’)
Confidential Information only to the extent necessary or desirable to perform
(or caused to be performed) its obligations hereunder.  Further, each party agrees to disclose the
other party’s (and the other party’s Subsidiaries’) Confidential Information
only to its directors, officers, employees, representatives and agents who are
bound by duties or obligations of confidentiality on a “need to know basis” and
who use such Confidential Information only to the extent necessary or desirable
to perform, on behalf of the applicable party hereto, such party’s obligations
hereunder.  In the event a party becomes legally compelled to disclose the
other party’s Confidential Information, such party shall, to the extent
permitted by applicable law, permit the other party a meaningful opportunity to
contest such disclosure or seek confidential treatment of the
applicable Confidential Information.


 


11.2                                                                           Each party further agrees that it will
only use personal information (as such term is defined in applicable privacy
laws) disclosed to it, if any, in connection with the Services for the purposes
of this Agreement and the completion of the Services, and that it will not use
or disclose such personal information except as authorized by this Agreement
and in compliance with applicable privacy laws. 
Each party acknowledges and confirms that it has and will continue to
employ appropriate technology and procedures, in accordance with the laws of
their respective jurisdictions, to attempt to prevent accidental loss or
corruption of, or unauthorized access to, any such personal information and
each party will promptly notify the other of all inquiries, complaints,
requests for access, and claims of which the party is made aware in connection
with any personal information disclosed to it. 
Versacold understands that the United States is not a “safe harbor”
country (as defined under European Union data privacy laws) and that Americold
has not applied individually for such status. Versacold agrees to obtain, to
the extent required by applicable law, appropriate consents (and Americold
agrees to cooperate thereto), prior to transferring personal data to Americold
under the terms of this Agreement.


 


11.3                                                                           Upon the expiry or termination of the
Term of this Agreement, or otherwise upon the reasonable request of either
party, the other party shall forthwith cease all use of the Confidential
Information (including any personal information), acquired by it in connection
with this Agreement and will return to other party or, at the other party’s
request, destroy in a secure manner to the extent technologically practicable,
the Confidential Information (and any copies).


 


10






 










 


If a party is
technologically unable to so destroy Confidential Information, its obligations
hereunder shall continue unabated until it is able to do so or has returned
such Confidential Information.


 


12.0                                                                        EVENTS
OF TERMINATION


 


12.1                                                                        The term (“Term”)
of this Agreement shall commence on the date hereof and shall continue until
terminated upon the occurrence of any one of the following events:


 


(a)                                 if either party materially defaults in
the performance or observance of any of its material covenants, duties, or
obligations contained in this Agreement and such default continues for a period
of 30 days after the non-defaulting party gives written notice thereof to
the defaulting party, then the non-defaulting party will be entitled to
terminate this Agreement; provided, however, that if the default referred to in
the notice in the reasonable opinion of the non-defaulting party requires more
time to remedy or cure than such 30-day period, then the non-defaulting party
will not terminate this Agreement pursuant to this Section 12.1 if the
defaulting party commences remedying or curing the default within such 30-day
period and thereafter diligently and continuously proceeds to completely remedy
or cure the default;


 


(b)                                 written notice by a party upon any of the
following events occurring to the other party: (i) any bankruptcy petition
is filed against such other party and either a final adjudication of bankruptcy
entered thereon or such petition is not dismissed within forty-five (45) days; (ii) such
other party (a) makes an assignment for the benefit of its creditors, (b) files
a voluntary petition in bankruptcy or a petition or answer seeking
reorganization to effect a plan or other arrangement with creditors or any
other relief under any law of any jurisdiction relating to bankruptcy or
reorganization granting relief to debtors, or (c) files an answer
admitting the jurisdiction of the court and the material allegations of any
involuntary petition filed against it pursuant to such law; or (iii) such
other party applies for or consents to the appointment of any receiver or
trustee; or


 


(c)                                  mutual written consent of the parties
hereto.


 


13.0                                                                        GENERAL


 


13.1                                                                        Notices


 


Any notice, demand or
other document required or permitted to be given, or any delivery to be made
hereunder, will be deemed to be well and sufficiently given or made if


 


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delivered personally, or
sent by receipt-confirmed facsimile, or internationally recognized overnight
courier with tracking capability:


 


(a)                                 in the case of Versacold, to:


 


Versacold International Corporation


2115 Commissioner Street


Vancouver, British Columbia


V5L 1A5


 


Attention:  CFO


Facsimile:  (604)
255-4330


 


(b)                                 in the case of Americold to:


 


Americold
Realty Operating Partnership, L.P.


10
Glenlake Parkway


South
Tower, Suite 800


Atlanta,
Georgia  30328


 


Attention:  CFO


Facsimile:  678-441-6852


Copy to:     Legal Department


Facsimile:   678-387-4774


 


or to such other address
any party may from time to time advise the other party in writing, and any such
notice will be deemed to have been received on the business day after the
couriering thereof, or if delivered personally, when delivered, or if sent by
facsimile, on the day of the recipient when such facsimile is received.  If such notice is couriered and there occurs
prior to the deemed receipt of such notice a strike, slowdown or other labour
dispute which might affect the delivery of such notice, then such notice will
be effective only when actually delivered.


 


13.2                                                                        Enurement; No Third Party Beneficiaries


 


This Agreement will enure
to the benefit of and be binding upon the parties hereto and their respective
successors and permitted assigns.  The
provisions of this Agreement are for the benefit of the parties hereto and not
for any other person.


 


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13.3                                                                        Headings


 


The headings of all
Articles and Sections in this Agreement are inserted for convenience of
reference only and will not affect the construction or interpretation of this
Agreement.


 


13.4                                                                        Dispute Resolution


 


(a)                                 In the event any party has any dispute or
claim relating to this Agreement, such party shall give the other party’s
Representative written notice setting forth the nature of such dispute, and the
parties’ respective Representatives shall promptly meet and confer to discuss
the dispute in good faith in an attempt to resolve the dispute.  Any dispute that cannot be resolved by the
parties within sixty (60) days after a party’s receipt of such a dispute notice
shall be submitted to final and binding arbitration in accordance with the
terms below.


 


(b)                                 The arbitration shall be conducted in New
York, New York in the United States.  The
governing law shall be the substantive law of the State of New York, United
States, without regard to conflicts of laws. 
The parties shall mutually select a single disinterested arbitrator
within 15 days after the 30 day period referenced in clause (a) above.  If the parties are unable to mutually select
an arbitrator within such 15 day period, the arbitrator shall be appointed by
the New York office of JAMS/Endispute in accordance with its then-current
rules.  The decision of the arbitrator
shall be final and binding upon the parties, and judgment upon the award may be
entered in any court of competent jurisdiction in the United States.  The arbitrator shall have the power to award
equitable relief, including specific performance of the terms and conditions of
this Agreement and/or injunctive relief.


 


(c)                                  Nothing herein shall be interpreted to
limit any party’s right to pursue preliminary or provisional equitable relief
pending the arbitration award, but any such preliminary or provisional
equitable relief shall be sought in the applicable state or federal courts in
Manhattan, New York, United States.


 


13.5                                                                        Further Assurances; Cooperation


 


Each party will execute
and deliver such further agreements and other documents and do such further
acts and things as the other party reasonably requests to evidence, carry out
or give full force and effect to the intent of this Agreement.  Without limitation of the foregoing, each
party (the “Obliging Party”) shall timely
provide or cause its respective Subsidiaries to provide to the other party (the
“Requesting Party”) all information and
access to employees, agents and properties of the Obliging Party as the
Requesting Party may reasonably request in order to provide its respective
Services to the Obliging Party hereunder, including, without


 


13

















 


limitation, copies of refrigeration
system records and logs, claims history, customer insurance requirements and
other contractual terms, in each case, subject to applicable laws.


 


13.6                                                                        Acknowledgements


 


Each
party acknowledges that:


 


(a)                                 all restrictions in this Agreement, including,
without limitation, the provisions of Article 10, are reasonable as to
scope, duration and otherwise;


 


(b)                                 a violation of any of the provisions of
this Agreement may result in immediate and irreparable harm and damage to the
affected party; and


 


(c)                                  in the event of any violation by a party
of any provision of this Agreement, the other party will, in addition to any
other right or relief available such party at law, be entitled to equitable
relief by way of temporary or permanent injunction without the posting of a
bond.


 


13.7                                                                        Partial Invalidity


 


If any provision of this
Agreement or the application thereof to any person or circumstance will, to any
extent, be invalid or unenforceable, the remainder of this Agreement, or the
application of such provision to the persons or circumstances other than those
as to which it is held invalid or unenforceable, will not be affected thereby
and each provision of this Agreement will be valid and enforceable to the
fullest extent permitted by law and be independent of every other provision of
this Agreement, each provision of which is hereby declared to be separate and
distinct from each other provision.  If
it is determined by order of applicable law (including by arbitration order)
that the modification or severance of an otherwise invalid or unenforceable
provision from the remainder of this Agreement is impermissible, and hence the
entire Agreement subject to invalidation or becoming void, the parties shall
promptly enter into and deliver to one another one or more additional
agreements containing terms, to the greatest extent permitted by applicable
law, substantially similar to those contained in this Agreement.  For purposes of clarity, the parties shall
modify or delete otherwise invalid or unenforceable provisions to the least
extent necessary to make them valid and enforceable.


 


13.8                                                                        Assignment


 


Neither
party may assign this Agreement without the prior written consent of the other
party, but each party may engage consultants or advisors from time to time to
assist in


 


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carrying out its
obligations hereunder; provided, however, that either party may assign its
rights and obligations in whole or in part (i) to any of its Subsidiaries;
or (ii) in connection with the sale of all or substantially all of such
party’s or any of its Subsidiaries’ assets, in either case, so long as the
assignee agrees in writing to assume all liabilities and obligations of the
assignor hereunder.


 


13.9                                                                        Amendment; Waiver


 


No
amendment to this Agreement shall be valid or binding unless set forth in
writing and duly executed by each of the parties hereto.  None of the provisions of this Agreement
shall be considered waived by any party unless such waiver is given in writing
by or on behalf of the party against whom such waiver is claimed.  The failure of a party to insist in any one
or more instances upon strict performance of any of the provisions of this
Agreement or to take advantage of any of its rights hereunder shall not be
construed as a waiver of any such provisions or the relinquishment of any such
rights for the future, but the same shall continue and remain in full force and
effect.  Waiver by a party of any default
under this Agreement shall not be deemed a waiver of any other default.


 


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13.10                                                                 Relationship of Parties


 


The
parties are not and shall not be deemed to be partners or joint venturers and
nothing herein shall be construed so as to impose any liability as such on any
of them.  The parties agree that each
party shall perform its duties and obligations under this Agreement as an
independent contractor.  In no
circumstances shall a party be, or be deemed to be, a fiduciary, trustee or
agent for any person, whether or not a party, in connection with the discharge
by a party of its duties and obligations under this Agreement.


 


13.11                                                                 Force Majeure. 
No party shall be held liable or responsible for delay or failure to
perform its obligations under this Agreement to the extent occasioned by force
majeure or any cause beyond its control, including, without limitation, civil
disturbance, fire, flood, earthquake, failure of the Internet, windstorm,
unusually severe weather, act of labor trouble, lack of or inability to obtain
raw materials, transportation, labor, fuel or supplies or governmental laws,
acts, regulations, embargoes, or orders (whether or not such later prove to be
invalid).


 


13.12                                                                 Subcontractors. 
Each party may, in its discretion, retain any of its Subsidiaries or
third parties to provide any or all of the Services hereunder, and shall have
the right to reasonably select any outsourced provider or subcontractor.


 


13.13                                                                 Books and Records; Audit; Retention. 
Each party shall reasonably cooperate with the other party’s external
auditors with respect to any audit relating to the services provided hereunder,
and shall provide such auditors reasonable access to materials that are readily
available in furtherance of such audit. 
Such auditors’ access to facilities and/or systems shall be subject to
such auditors’ compliance with all safety, security and confidentiality
procedures and guidelines applicable to such facilities and/or systems, as such
procedures and guidelines may be reasonably established from time to time.  Each party, to the extent that it or its
Subsidiaries remains in custody of records and data belonging to any other
party or its Subsidiaries, shall retain such records in accordance with its own
record retention policies and shall permit the other party to access such
records and data upon reasonable prior request (or otherwise provide such
records to such party, if requested). 
This Section 13.13 shall survive any termination of this Agreement
for a period of twelve (12) months following such termination.


 


13.14                                                                 Entire Agreement. 
This Agreement reflects the entire understanding of the parties hereto
with respect to the subject matter hereof and supersedes any and all previous
agreements, oral or written, with respect to such subject matter.  For purposes of clarity, Section 11
shall govern the treatment of the parties’ respective confidential treatment in
connection with this 


 


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Agreement, and the
terms of that certain Mutual Non-Disclosure Agreement dated January 6,
2010 by and between Versacold and Americold Realty Trust shall not apply to
this Agreement.  Each of the Schedules
attached hereto are hereby incorporated herein and made a part hereof.  For further purposes of clarity, Section 7
of this Agreement shall supersede in its entirety any agreement between VGS and
any Formation Entity relating to the Versacold Marks, and any and all such
agreements are hereby terminated in their entirety.


 


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IN
WITNESS WHEREOF the parties hereto have executed this Agreement.


 


 


	
  VERSACOLD
  INTERNATIONAL CORPORATION

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  
	
  Title: Authorized
  Signatory

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  
	
  Title: Authorized
  Signatory

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  AMERICOLD
  REALTY OPERATING PARTNERSHIP, LP,

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By: Americold Realty
  Trust, its General Partner

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  
	
  Title: Authorized
  Signatory

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  For
  purposes of Section 7:

  	
   

  
	
   

  	
   

  
	
  VERSACOLD
  GROUP SERVICES ULC

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Authorized Signatory

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Authorized Signatory

  	
   

  



 


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