Exhibit 10.36
PROMISSORY NOTE
$5,100,000.00 June 6, 2001
Atlanta, Georgia
FOR VALUE RECEIVED, the undersigned, AMERICOLD LOGISTICS, LLC, a
Delaware limited liability company (hereinafter referred to as "Borrower"),
hereby promises to pay to the order of VORNADO OPERATING L.P. (hereinafter
referred to as "Noteholder," which term shall mean the holder at any particular
time of this Note), the principal sum of FIVE MILLION ONE HUNDRED THOUSAND and
NO/100ths DOLLARS ($5,100,000.00), together with interest as hereinafter
provided.
From the effective date hereof, until this Note is paid in full,
interest shall be charged on the principal balance of this Note outstanding from
time to time at an annual rate (the "Interest Rate") equal to fourteen percent
(14%). Interest shall be computed based on the premise that a year contains 360
days and shall be charged on a per diem basis. Borrower shall pay (i) on June
17, 2001, the sum of $23,800, as a payment of interest in arrears from the date
hereof to such date of payment, and (ii) commencing on July 17, 2001, and on the
seventeenth (17th) day of each calendar month thereafter and continuing through
and including December 17, 2002, the sum of $98,932.50, as payments on account
of principal and accrued interest at the Interest Rate. The entire unpaid
principal balance of this Note and all accrued and unpaid interest thereon shall
be due and payable on December 31, 2002 (the "Maturity Date"), unless this Note
shall be accelerated sooner pursuant to any provision hereof. Borrower
acknowledges that a balloon payment will be due on the Maturity Date.
All payments received hereunder shall be applied first to accrued
interest and the balance, if any, to principal. The principal of and interest on
this Note shall be payable in immediately available funds in lawful money of the
United States which shall be legal tender for public and private debts at the
time of payment. Any payment by other than immediately available funds which
Noteholder, at its option, elects to accept shall be subject to collection, and
interest shall continue to accrue until the funds by which payment is made are
available to Noteholder for its use. All payments received during normal banking
hours after 2:00 p.m. shall be deemed received at the opening of the next
banking day. Borrower shall pay to Noteholder $20.00 for any returned check
given as payment under this Note. All payments hereunder shall be payable to the
order of Noteholder at 000 Xxxxx 0, Xxxxxxx, Xxx Xxxxxx 00000, or at such place
and to such person as shall be designated in writing from time to time by
Noteholder.
Borrower hereby agrees to pay Noteholder any and all fees and costs,
including, without limitation, Noteholder's reasonable legal fees, incurred by
Noteholder in connection with the loan evidenced hereby and the preparation,
negotiation, recordation, filing and/or enforcement of this Note and the Loan
Documents (as defined below). Borrower reserves the privilege of prepaying
without premium or penalty, all or
any portion of the principal balance of this Note, together with accrued
interest thereon to the date of payment.
If any payment of principal and/or interest is not paid when due,
Xxxxxxxx agrees to pay to Noteholder as a late charge, and in addition to the
amount of such payment, a sum equal to five percent (5%) of the amount of such
delinquent payment. If Borrower resumes making payments but has not paid all
past due payments, Noteholder will impose a separate late payment charge for
each payment that becomes due until the default is cured. If any payment
required to be made under this Note is not paid when due, whether at maturity or
by acceleration, (i) interest shall be payable on the principal portion of such
defaulted payment and, to the extent permitted by law, on all accrued but unpaid
interest and other amounts outstanding hereunder, at the annual rate of three
percent (3%) in excess of the Interest Rate, and (ii) Borrower promises to pay
all costs of collection, including reasonable attorneys' fees, incurred by
Noteholder, whether or not suit is filed hereon. Such costs of collection shall
include, but not be limited to, all costs and expenses, including reasonable
attorneys' fees, incurred in connection with the protection of or realization
upon the collateral securing this Note.
At the option of Noteholder, this Note shall become immediately due
and payable if any of the following shall occur: (i) if Borrower fails to make
any payment hereunder when such payment is due and payable; (ii) if Borrower
fails to observe or perform any warranty, covenant, or condition to be observed
or performed by Borrower under this Note; or (iii) if there shall exist any
other Default, as such term is defined in that certain Security Agreement (the
"Security Agreement"), dated of even date herewith, among Borrower, its
subsidiaries, Noteholder, and Crescent Real Estate Equities Limited Partnership.
The failure of Noteholder to exercise its option to accelerate this
Note as provided above, or to exercise any other option or remedy granted to it
under this Note, the Security Agreement or any other document, instrument or
agreement now or hereafter evidencing or securing the indebtedness evidenced by
this Note as amended from time to time (collectively, the "Loan Documents"), in
any one or more instances, or the acceptance by Noteholder of partial payments
or partial performance, shall not constitute a waiver of any default by
Borrower, and all such options and remedies shall remain continuously in force.
Acceleration of maturity, once claimed hereunder by Noteholder, may at
Noteholder's option be rescinded by written acknowledgment to that effect, but
the tender and acceptance of partial payment or partial performance alone shall
not in any way affect or rescind such acceleration of maturity.
Xxxxxxxx, and all others who may become liable for all or any part
of this Note, agree hereby to be jointly and severally bound, and jointly and
severally (i) waive and renounce any and all homestead exemption rights and the
benefits of all valuation and appraisement privileges as against this debt or
any renewal or extension hereof; (ii)
waive presentment, demand, protest, notice of nonpayment, notice of dishonor,
and any and all lack of diligence or delays in the collection or enforcement
hereof; (iii) expressly consent to the release or substitution of any of the
collateral securing this Note; and (iv) expressly consent to any extension of
the time for payment of this Note and any other indulgence or forbearance by
Noteholder. Any such extension, release, substitution, indulgence, or
forbearance may be made without notice to any party and without in any way
affecting the personal liability of any party liable hereon.
In no event shall the amount of interest due or payable hereunder
exceed the maximum amount of interest allowed by applicable law or otherwise
violate applicable law, and in the event any payment is made which exceeds such
maximum lawful amount, then the amount of such excess sum shall be credited as a
payment of principal. It is the express intent hereof that Borrower shall not
pay and Noteholder shall not receive, directly or indirectly, interest in excess
of what may lawfully be paid by Borrower under applicable law.
Borrower hereby represents and warrants that the indebtedness
evidenced by this Note is being obtained for the purpose of acquiring and/or
carrying on a business or commercial enterprise and all proceeds of such
indebtedness will be used solely in connection with such business or commercial
enterprise.
This Note shall be binding upon Borrower and its successors and
assigns and shall inure to the benefit of Noteholder and its successors and
assigns. This Note shall be governed by and construed in accordance with the
laws of the State of Georgia.
BORROWER REPRESENTS AND WARRANTS TO NOTEHOLDER THAT IT (I) HAS READ
EACH AND EVERY PROVISION OF THIS INSTRUMENT, (II) HAS CONSULTED, OR HAS BEEN
GIVEN THE OPPORTUNITY TO HAVE THIS INSTRUMENT REVIEWED BY COMPETENT LEGAL
COUNSEL OF ITS CHOOSING, AND (III) UNDERSTANDS, AGREES TO AND ACCEPTS THE
PROVISIONS HEREOF.
Borrower hereby acknowledges and agrees that it shall not use any of
the proceeds under this Note to make any distributions or contributions to any
party or entity. Without limiting the foregoing, Xxxxxxxx agrees that $3,737,110
of the proceeds under this Note (the "Deposit Amount") shall be used exclusively
to partially collateralize (and to extent necessary to fund) Xxxxxxxx's
reimbursement obligation in the amount of $8,500,000 (the "Total Deposit") under
a letter of credit being issued for the account of Borrower in connection with
Borrower's workers' compensation insurance program, and for any replacements,
extensions or renewals of such letter of credit or similar security
arrangements. If at any time all or any portion of the Deposit Amount is no
longer required for the purposes described in the immediately preceding
sentence, then on the day immediately following Xxxxxxxx's receipt of such
funds, this Note shall be subject to
mandatory prepayment in part up to the amount of the Deposit Amount, and
Borrower shall pay to Noteholder 43.966% of the proceeds of the Total Deposit
returned to Borrower.
Borrower represents and warrants that as of the date hereof (and
after consummation of the transaction contemplated hereby) it is solvent; that
the fair market value of its assets exceeds its liabilities; that it is
adequately capitalized in light of its ongoing business; and that it is able to
satisfy its obligations as such obligations mature.
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IN WITNESS WHEREOF, the undersigned, with full power and authority
to do so, intending that this Note shall constitute an instrument under seal,
has caused these presents to be executed, delivered, and sealed on the day and
year first above written.
WITNESS:
/s/ illegible BORROWER:
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AMERICOLD LOGISTICS, LLC,
a Delaware limited liability company
By: /s/ Xxxxxxxxx X. Xxxxxxxxx III
_____________________________ [SEAL]
Name: Xxxxxxxxx X. Xxxxxxxxx
____________________________________
Title: Executive Vice President
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