Exhibit 10.39
FIRST ALLONGE AND AMENDMENT TO
PROMISSORY NOTE
THIS FIRST ALLONGE AND AMENDMENT TO PROMISSORY NOTE (this "AMENDMENT") is
made effective as of the 11th day of March, 2002, by and between VORNADO
OPERATING L.P., a Delaware limited partnership ("LENDER"), and AMERICOLD
LOGISTICS, LLC, a Delaware limited liability company ("BORROWER"), and is joined
in by KC UNDERGROUND, L.L.C., INLAND QUARRIES, L.L.C., VC CARTHAGE, L.L.C., VC
OMAHA TEXAS, L.L.C., VC TEXAS, L.P., VC SUPERIOR, L.L.C., CARMAR INDUSTRIES,
L.L.C., VC LOGISTICS, L.L.C., and AMLOG CANADA, Inc. (collectively, "GUARANTOR")
for the purposes stated herein.
W I T N E S S E T H:
This Amendment is made with reference to the following facts:
A. Borrower is indebted to Lender in the maximum principal sum of FIVE
MILLION ONE HUNDRED THOUSAND DOLLARS ($5,100,000.00) (the "LOAN") pursuant to
that certain Promissory Note made by Borrower in favor of Lender in the
aforesaid maximum principal amount dated June 6, 2001 (collectively, the
"NOTE").
B. Repayment of the Note is guarantied by, among other things, that
certain Unconditional Guaranty, dated as of June 6, 2001 (the "GUARANTY"), from
Guarantor, which Guaranty is secured by the collateral described in that certain
Security Agreement, dated as of June 6, 2001, made by Borrower and the Guarantor
(the "SECURITY AGREEMENT").
C. Reference is hereby made to (i) that certain Intercreditor Agreement
(the "INTERCREDITOR AGREEMENT") by and among Crescent Real Estate Equities
Limited Partnership ("CRE"), Lender, Borrower and Guarantor, effective as of
June 6, 2001, and (ii) that certain Agreement (the "SPECIAL EQUITY CONTRIBUTION
AGREEMENT"), dated as of March 11, 2002, by and among Lender, COPI Cold Storage
L.L.C., Crescent TRS Holdings Corp. ("CRESCENT TRS"), Vornado Operating Company,
Borrower, and Guarantor. (The Note, the Guaranty, the Security Agreement, the
Intercreditor Agreement, the Special Equity Contribution Agreement, and all such
other documents evidencing, guarantying or securing the Borrower's obligations
under the Note or otherwise executed in connection with the Loan being
hereinafter referred to collectively as the "EQUIPMENT LOAN DOCUMENTS".)
D. Borrower has requested that Lender extend the Maturity Date set forth
in the Note until December 31, 2004, and Lender has agreed to same, upon and
subject to the terms set forth herein.
E. All terms used herein, unless otherwise provided herein, shall have the
meanings ascribed thereto in the Note, as amended hereby.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally bound
hereby, the parties hereto covenant and agree as follows:
1. The recitals set forth above are incorporated herein by reference
and are expressly acknowledged and agreed to by the parties hereto.
2. The Note is hereby amended to provide that the "Maturity Date"
shall be December 31, 2004. The Interest Rate shall continue to be the rate
applicable during the term of the Loan.
3. All references in any of the other Equipment Loan Documents to
the "Vornado Note" and/or the "Third Vornado Note", as applicable, shall be
deemed to refer to the Note as hereby amended. All references in any of the
other Equipment Loan Documents to the "Note" shall be deemed to refer
collectively to the Vornado Note, as amended hereby, and to that certain
Promissory Note from Borrower to CRE, dated June 6, 2001, in the maximum
principal amount of $6,500,000, as amended pursuant to that certain First
Allonge and Amendment to Promissory Note, extending the Maturity Date thereunder
until December 31, 2004, executed by Borrower, Guarantor and Crescent TRS, as
successor by assignment to the interests of CRE, concurrently herewith
(collectively, the "CRESCENT NOTE").
4. An executed copy of this Amendment shall be affixed to the Note
and shall be deemed to constitute a part thereof.
5. All of the terms, covenants and conditions of the Note, and all
of the other Equipment Loan Documents, shall continue in full force and effect,
as modified hereby, and, if applicable, as separately modified concurrently
herewith. This Amendment is not intended to be, and shall not constitute, a
substitution or novation of the Note. Nothing herein contained shall be
construed as invalidating or releasing any security now or hereafter held by
Lender for the indebtedness evidenced by the Note.
6. In connection herewith, each of Borrower and Guarantor hereby
represents and warrants to Lender that (i) as of the date of this Amendment,
neither Borrower nor Guarantor has any rights of setoff, defenses, claims or
counterclaims against Lender in connection with the Loan, and (ii) all of the
representations and warranties of Borrower and/or Guarantor contained in the
Equipment Loan Documents continue to be true and correct.
7. Guarantor hereby consents to the terms and conditions contained
herein. Guarantor further hereby confirms that the Guaranty as of the date
hereof shall relate to the debt evidenced by the Note, as modified and amended
by this Amendment to the same extent as if the terms of this Amendment were
contained in the Note at the time of its delivery to Lender. Guarantor
acknowledges and agrees that all of the terms and conditions of the Guaranty
shall remain in full force and effect, as modified hereby and reaffirms the
Guaranty guaranteeing the obligations set forth in the Note, as amended hereby,
and the other guaranteed obligations, as described in the Guaranty.
8. This Amendment may be executed in several counterparts, each of
which shall be deemed to be an original, and all of which when taken together
shall constitute one and the same instrument.
9. Each and every term and provision of this Amendment shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective heirs, successors, personal representatives and assigns.
10. This Amendment shall not be effective until such time as Lender
shall have been notified by Crescent TRS that Crescent TRS and each of the other
applicable parties shall have executed and delivered that certain First Allonge
and Amendment to Promissory Note referred to in the definition of "Crescent
Note" in Paragraph 3 above.
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IN WITNESS WHEREOF, this Amendment has been executed effective as of
the date above written.
BORROWER:
AMERICOLD LOGISTICS, LLC
By: /s/ X.X. Xxxxxx
______________________________________
Name: Xxxxxxxx X. Xxxxxx
______________________________________
GUARANTOR:
KC UNDERGROUND, L.L.C.
By AmeriCold Logistics, LLC, sole member
By: /s/ X.X. Xxxxxx
______________________________________
Name: Xxxxxxxx X. Xxxxxx
______________________________________
INLAND QUARRIES, L.L.C.
By: AmeriCold Logistics, LLC, sole member
By: /s/ X.X. Xxxxxx
______________________________________
Name: Xxxxxxxx X. Xxxxxx
______________________________________
(SIGNATURES CONTINUED ON NEXT PAGE)
VC CARTHAGE, L.L.C.
By: AmeriCold Logistics, LLC, sole member
By: /s/ X. X. Xxxxxx
______________________________________
Name: Xxxxxxxx X. Xxxxxx
______________________________________
VC OMAHA TEXAS, L.L.C.
By: AmeriCold Logistics, LLC, sole member
By: /s/ X. X. Xxxxxx
______________________________________
Name: Xxxxxxxx X. Xxxxxx
______________________________________
VC TEXAS, L.P.
By: VC Omaha Texas, L.L.C., its general
partner
By: AmeriCold Logistics, LLC, sole member
By: /s/ X. X. Xxxxxx
______________________________________
Name: Xxxxxxxx X. Xxxxxx
______________________________________
VC SUPERIOR, L.L.C.
By: AmeriCold Logistics, LLC, sole member
By: /s/ X. X. Xxxxxx
______________________________________
Name: Xxxxxxxx X. Xxxxxx
______________________________________
(SIGNATURES CONTINUED ON NEXT PAGE)
CARMAR INDUSTRIES, L.L.C.
By: AmeriCold Logistics, LLC, sole member
By: /s/ X. X. Xxxxxx
______________________________________
Name: Xxxxxxxx X. Xxxxxx
______________________________________
VC LOGISTICS, L.L.C.
By: AmeriCold Logistics, LLC, sole member
By: /s/ X. X. Xxxxxx
______________________________________
Name: Xxxxxxxx X. Xxxxxx
______________________________________
AMLOG CANADA, INC.
By: /s/ X. X. Xxxxxx
______________________________________
Name: Xxxxxxxx X. Xxxxxx
______________________________________
LENDER:
VORNADO OPERATING L.P.
By: Vornado Operating Company, its general
partner
By: /s/ Xxxxxx Xxxxxx
______________________________________
Name: Xxxxxx Xxxxxx
______________________________________
