Exhibit 10.33
SECURED PROMISSORY NOTE
$6,000,000.00 March 11, 2002
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., a Delaware
limited partnership (hereinafter referred to as "Noteholder," which term shall
mean the holder at any particular time of this Note) the principal sum of SIX
MILLION and NO/100ths DOLLARS ($6,000,000.00), together with interest as
hereinafter provided.
From the date hereinabove set forth, 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
twelve percent (12%). The entire unpaid principal balance of this Note and all
accrued and unpaid interest thereon shall be due and payable on December 31,
2004 (the "Maturity Date"), unless this Note shall be accelerated sooner
pursuant to any provision hereof. Interest will be due and payable in arrears on
the seventeenth day of each calendar month beginning on November 17, 2002,
through and including the Maturity Date, provided that so long as no Event of
Default shall have occurred and be continuing, unless Borrower shall make such
payment of interest, the amount thereof shall be added to the principal amount
of this Note and shall thereafter accrue interest at the Interest Rate.
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. 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 thereon until the funds by which payment is
made are available to Noteholder for its use. 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 required to be made under this Note is not paid when
due and payable hereunder, whether at maturity or by acceleration, (i) interest
shall be payable on the principal portion of such payment and, to the extent
permitted by law, on all accrued but unpaid interest and other amounts
outstanding hereunder, at 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 covenant to be observed or performed by Borrower
under this Note; (iii) a receiver, liquidator or trustee shall be appointed for
Borrower or Borrower shall be adjudicated a bankrupt or insolvent, or if any
petition for bankruptcy, reorganization or arrangement pursuant to federal
bankruptcy law, or any similar federal or state law, shall be filed by or
against, consented to, or acquiesced in by, Borrower or if any proceeding for
the dissolution or liquidation of Borrower shall be instituted; provided,
however, if such appointment, adjudication, petition or proceeding was
involuntary and not consented to by Borrower upon the same not being discharged,
stayed or dismissed within ninety (90) days; or (iv) if there shall exist any
"Event of Default", as such term is defined in that certain Security Agreement
(the "Security Agreement"), dated of even date herewith, between the Borrower
and Noteholder.
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 agrees hereby to (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; and (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.
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 is given in consideration for the extinguishment by
Noteholder of any claim by Noteholder in respect to its $6,000,000 equity
investment in Borrower, made on March 7, 2000.
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 New York.
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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:
BORROWER:
/s/ Xxxx Xxxxxxx
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AMERICOLD LOGISTICS, LLC,
a Delaware limited liability company
By: /s/ X.X. Xxxxxx
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Name: Xxxxxxxx X. Xxxxxx
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Title: Chief Financial Officer
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