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Exhibit 10.7
LIMITED RECOURSE PROMISSORY NOTE
New York, New York
$5,610,000 February 23, 2000
THIS NOTE ("Note") is made as of the 23rd day of February, 2000, by
Xxxxx X. Xxxxxxx ("Borrower"), to the order of New Plan Excel Realty Trust,
Inc., a Maryland corporation ("Lender").
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DEFINITIONS
Borrower agrees that, for the purposes of this Note, the following terms
shall have the following respective meanings ascribed thereto.
1.1 "Default Rate" shall mean two percent (2%) per annum in excess of
the Interest Rate, but not in excess of the maximum interest rate permitted by
law.
1.2 "Dollars" shall mean dollars in lawful currency of The United
States of America.
1.3 "Employment Agreement" shall mean the Employment Agreement
between Lender and Borrower dated February 23, 2000, as it may from time to time
be amended.
1.4 "Interest Rate" shall mean eight percent (8%) per annum.
1.5 "Maturity Date".shall mean the earlier of (i) February 23, 2005,
(ii) the date the entire Outstanding Principal Balance is due and payable by
reason of the acceleration of the maturity of this Note, (iii) the date that
Lender exercises the right to purchase the stock securing this Note pursuant to
the Employment Agreement, or (iv) such earlier date as provided for in the
Employment Agreement.
1.6 "Original Principal Amount" shall mean Five Million Six Hundred
Ten Thousand Dollars ($5,610,000).
1.7 "Other Note" shall mean the other note of even date herewith
executed by Borrower in favor of Lender in the original principal amount of Five
Hundred Ninety Thousand Dollars ($590,000).
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1.8 "Outstanding Principal Balance" shall mean the portion of the
Original Principal Amount that has not been repaid.
1.9 "Payment Date" shall mean January 15, April 15, July 15, and
October 15.
1.10 "Pledge Agreement" shall mean the pledge agreement securing the
payment of the Note executed by Borrower for the benefit of Lender
II
PAYMENT OF INTEREST AND PRINCIPAL
For Value Received, Borrower hereby promises to pay to the order of
Lender the Original Principal Amount, together with interest as provided herein
as follows:
2.1 Payment of Interest and Principal.
(a) Interest shall accrue on the Outstanding Principal Balance
at the Interest Rate prior to Default, with all outstanding and unpaid interest
compounded quarterly.
(b) All accrued and unpaid interest shall be due and payable on
each Payment Date while the Note is outstanding.
(c) On each Payment Date while this Note is outstanding, there
shall be due and payable a payment of principal in the amount of $31,679.75.
(d) The entire Outstanding Principal Balance of this Note, and
any accrued and unpaid interest thereon, shall be due and payable on the
Maturity Date.
2.2 Prepayment Privileges. This Note may be prepaid in whole or in
part at any time and from time to time during the term hereof. All partial
prepayments shall be applied in inverse order of maturity and shall not extend
or reduce any other principal payments due hereunder.
2.3 Default Interest. Subsequent to a Default, interest shall accrue
on the Outstanding Principal Balance and any unpaid interest at the Default
Rate, with all outstanding and unpaid interest compounded quarterly.
2.4 Principal and Interest at Maturity. The entire Outstanding
Principal Balance and accrued and unpaid interest thereon, and any and all other
sums which are due and payable pursuant to the terms and provisions of this Note
or the Pledge Agreement, shall be due and payable on the Maturity Date.
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2.5 Calculation of Interest. All interest on this Note shall be
calculated on the basis of twelve 30-day months, provided, however, that for
portions of the principal balance which are outstanding for less than a full
calendar month, interest on such portion of the principal balance shall be
calculated on the basis of a three hundred sixty (360) day year and the actual
number of days elapsed in any portion of a month for which interest may be due
on such portion of the principal balance.
2.6 Application of Payments Prior to Default. Prior to the invocation
of the terms and provisions of Paragraph 3.2 hereof, all monies paid by Borrower
to Lender shall be applied in the following order of priority: (a) first, toward
repayment of all amounts advanced by Lender under the provisions of the Pledge
Agreement to protect and preserve the collateral (if any); (b) next, toward
payment of all amounts due and owing pursuant to Paragraph 3.5 hereof (if any);
(c) next, toward payment of all amounts due and owing pursuant to Paragraph 3.4
hereof (if any); (d) next, toward payment of interest which has accrued on the
Outstanding Principal Balance and which is due and payable; and (e) last, toward
payment of the Outstanding Principal Balance.
2.7 Payments after Default. While any Default exists, Lender is
expressly authorized to apply payments made to it as it may elect against (a)
any or all amounts, or portions thereof, then due and payable hereunder, (b) the
Outstanding Principal Balance, or (c) any combination thereof.
2.8 Place of Payment. Payments and prepayments to be made under this
Note are to be made at such place as the legal holder of this Note may from time
to time in writing appoint, and, in the absence of such appointment, then at the
following address:
New Plan Excel Realty Trust, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
III
SECURITY, DEFAULTS, AND REMEDIES
3.1 Security for Payment. The payment of this Note is secured by the
Pledge Agreement.
3.2 Occurrence of Default; Acceleration of Maturity Date. It is
agreed that upon occurrence of any of the following events of default under this
Note (a "Default"):
(a) default in the payment of any amount when due hereunder
which continues for five (5) days after written notice to Borrower; or
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(b) default in the performance or observance of any other
covenant or agreement of Borrower contained herein which continues for thirty
(30) days after written notice to Borrower; or
(c) occurrence of any default under the Other Note or Pledge
Agreement which continue beyond any applicable notice and grace periods,
then, at any time thereafter, at the election of the holder or holders hereof
and without additional notice to Borrower, the Outstanding Principal Balance,
together with accrued interest thereon, shall become at once due and payable at
the place of payment as aforesaid, and Lender may proceed to exercise all rights
and remedies available to Lender under the Pledge Agreement, and to exercise any
other rights and remedies against Borrower or with respect to this Note which
Lender may have at law, in equity or otherwise.
3.3 Nature of Remedies. The remedies of Lender as provided herein or
in the Pledge Agreement shall be cumulative and concurrent, and may be pursued
singularly, successively or together, at the sole discretion of Lender, and may
be exercised as often as occasion therefor shall arise. Failure of Lender, for
any period of time or on more than one occasion, to exercise its option to
accelerate the Maturity Date of this Note shall not constitute a waiver of the
right to exercise the same at any time thereafter or in the event of any
subsequent Default. No act of omission or commission of Lender, including
specifically any failure to exercise any right, remedy or recourse, shall be
deemed to be a waiver or release of the same; any such waiver or release is to
be effected only through a written document executed by Lender and then only to
the extent specifically recited therein. A waiver or release in connection with
any one event shall not be construed as a waiver or release of any subsequent
event or as a bar to any subsequent exercise of Lender's rights or remedies
hereunder. Notice of the exercise of any right or remedy granted to Lender by
this Note is not required to be given except as specifically provided herein.
3.4 Payment of Attorneys' Fees and Costs. If (i) this Note or the
Pledge Agreement is placed in the hands of an attorney for collection or
enforcement or is collected or enforced through any legal proceeding; (ii) an
attorney is retained to represent Lender in any bankruptcy, reorganization,
receivership, or other proceedings affecting creditors' rights and involving a
claim under this Note or the Pledge Agreement; (iii) an attorney is retained to
protect or enforce the lien of the Pledge Agreement; or (iv) an attorney is
retained to represent Lender in any other proceedings whatsoever in connection
with this Note or the Pledge Agreement or any property subject thereto, then
Borrower shall pay to Lender all reasonable attorneys' fees, costs and expenses
incurred in connection therewith, in addition to all other amounts due
hereunder.
3.5 Late Charge. If any installment of interest or principal is not
paid when due, the Borrower shall pay to Lender a late charge of two percent
(2%) of the amount so overdue in order to defray part of the expense incident to
handling such delinquent payment or payments. Such late charge shall be in
addition to and separate from any increase in interest due hereunder as a result
of calculation of interest due hereunder at the Default Rate.
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IV
OTHER GENERAL AGREEMENTS
4.1 Notices. All notices or other communications which are required
or permitted hereunder shall be in writing and sufficient if delivered
personally, or sent by nationally-recognized overnight courier, or by registered
or certified mail, return receipt requested and postage prepaid, addressed as
follows:
If to Borrower:
Xx. Xxxxx X. Xxxxxxx
c/o New Plan Excel Realty Trust, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
If to the Lender:
New Plan Excel Realty Trust, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: General Counsel
or to such other address as any party may have furnished to the others in
writing in accordance herewith. All such notices and other communications shall
be deemed to have been received (a) in the case of personal delivery, on the
date of such delivery, (b) in the case of delivery by nationally-recognized,
overnight courier, on the business day following dispatch and (c) in the case of
mailing, on the third business day following such mailing.
4.2 Governing Law and Other Agreements. Borrower agrees that: (i)
this instrument and the rights and obligations of the parties hereunder shall be
governed by the laws of the State New York, without reference to the conflict of
law principles of such state; (ii) the obligation evidenced by this Note is an
exempted transaction under the Truth in Lending Act, 15 U.S.C. Section 1601, et
seq.; (iii) said obligation constitutes a business loan; and (iv) upon the
Maturity Date, Lender shall not have any obligation to refinance the
indebtedness evidenced by this Note or to extend further credit to the Borrower.
4.3 Interpretation. The headings of sections and paragraphs in this
Note are for convenience only and shall not be construed in any way to limit or
define the content, scope or intent of the provisions hereof. As used in this
Note, the singular shall include the plural, and masculine, feminine and neuter
pronouns shall be fully interchangeable, where the context so requires. This
Note shall not be construed more favorably for the benefit of Borrower or
Lender,
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regardless of which party or their counsel were primarily responsible for the
drafting hereof. The parties hereto intend and believe that each provision in
this Note comports with all applicable law. However, if any provision in this
Note is found by a court of law to be in violation of any applicable law, and if
such court should declare such provision of this Note to be unlawful, void or
unenforceable as written, then it is the intent of all parties to the fullest
possible extent that it is legal, valid and enforceable, that the remainder of
this Note shall be construed as if such unlawful, void or unenforceable
provision were not contained therein, and that the rights, obligations and
interests of Borrower and the holder hereof under the remainder of this Note
shall continue in full force and effect; provided, however, that if any
provision of this Note which is found to be in violation of any applicable law
concerns the imposition of interest hereunder, the rights, obligations and
interests of Borrower and Lender with respect to the imposition of interest
hereunder shall be governed and controlled by the provisions of Paragraph 4.5
hereof. Time is of the essence of this Note.
4.4 Waiver. Borrower and any and all others who are now or may become
liable for all or part of the obligations of Borrower under this Note agree to
be jointly and severally bound hereby and jointly and severally: (i) waive and
renounce any and all redemption and exemption rights and the benefit of all
valuation and appraisement privileges against the indebtedness evidenced by this
Note or by any extension or renewal hereof; (ii) waive presentment and demand
for payment, notices of nonpayment and of dishonor, protest of dishonor and
notice of protest; (iii) waive all notices in connection with the delivery and
acceptance hereof and all other notices in connection with the performance,
default or enforcement of the payment hereof or hereunder; (iv) waive any and
all lack of diligence and delays in the enforcement of the payment hereof; (v)
agree that the liability of each of them shall be unconditional and without
regard to the liability of any other person or entity for the payment hereof,
and shall not in any manner be affected by any indulgence or forbearance granted
or consented to by Lender to any of them with respect hereto; (vi) consent to
any and all extensions of time, renewals, waivers or modifications that may be
granted by Lender with respect to the payment or other provisions hereof, and to
the release of any security at any time given for the payment hereof, or any
part thereof, with or without substitution, and to the release of any person or
entity liable for the payment hereof; and (vii) consent to the addition of any
and all other makers, endorsers, guarantors and other obligors for the payment
hereof, and to the acceptance of any and all other security for the payment
hereof, and agree that the addition of any such obligors or security shall not
affect the liability of any of the obligors for the payment hereof.
4.5 Excess Interest. It being the intention of Lender and Borrower to
comply with the laws of the State of New York with regard to the rate of
interest charged hereunder, it is agreed that, notwithstanding any provision to
the contrary in this Note or the Pledge Agreement, no such provision shall
require the payment or permit the collection of any amount ("Excess Interest")
in excess of the maximum amount of interest permitted by law to be charged for
the use or detention, or the forbearance in the collection of all or any portion
of the indebtedness evidenced by this Note. If any Excess Interest is provided
for, or is adjudicated to be provided for, in this Note or the Pledge Agreement,
then in such event:
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(a) the provisions of this paragraph shall govern and control;
(b) neither Borrower nor any of the other Obligors shall be
obligated to pay any Excess Interest;
(c) any Excess Interest that Lender may have received hereunder
shall, at the option of Lender, be (i) applied as a credit against either the
then outstanding principal balance due under this Note, or the accrued and
unpaid interest thereon not to exceed the maximum amount permitted by law, or
both; (ii) refunded to the payor thereof; or (iii) any combination of the
foregoing;
(d) the applicable interest rate or rates shall be automatically
subject to reduction to the maximum lawful rate allowed to be contracted for in
writing under the applicable usury laws of the aforesaid State, and this Note
and the Pledge Agreement shall be deemed to have been, and shall be, reformed
and modified to reflect such reduction in such interest rate or rates; and
(e) neither Borrower nor any of the other Obligors shall have
any action or remedy against Lender for any damages whatsoever or any defense to
enforcement of the Note or the Pledge Agreement arising out of the payment or
collection of any Excess Interest.
4.6 Successors, Holders and Assigns. Upon any endorsement, assignment
or other transfer of this Note by Lender or by operation of law, the term
"Lender", as used herein, shall mean such endorsee, assignee or other transferee
or successor to Lender then becoming the holder of this Note. This Note shall
inure to the benefit of Lender and its successors and assigns and shall be
binding upon the undersigned and its successors and assigns. The term
"Borrower", as used herein, shall include the successors, assigns, legal and
personal representatives, executors, administrators, devisees, legatees and
heirs of Borrower.
4.7 Exculpation. Borrower, his successors and assigns ("Exculpated
Parties") shall not be personally liable for the payment of any sums, other than
interest, due hereunder, or under the Pledge Agreement. No judgment for the
repayment of the principal, or for any damages, or for specific performance of
obligations to pay or expend money resulting from any breach of or default under
this Note or under the Pledge Agreement, will be sought or enforced against the
Exculpated Parties personally or any property of the Exculpated Parties, other
than the security under the Pledge Agreement, in any action to realize upon any
security furnished under the Pledge Agreement, or to collect any amount payable
hereunder or thereunder; provided, however, that:
(a) Nothing herein contained shall be construed as prohibiting
Lender from exercising any and all remedies which the Pledge Agreement permits,
including the right to bring actions or proceedings against Borrower and to
enter a judgment against Borrower, or to obtain injunctive or other equitable
relief against the Borrower in order to prevent a breach of the Pledge
Agreement, so long as the exercise of any remedy does not extend to execution
against or recovery out of any property of Borrower other than the security
furnished under the Pledge
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Agreement, or, in the case of specific performance or other injunctive relief,
does not require the expenditure of money except out of the security furnished
pursuant to the Pledge Agreement; and
(b) Borrower shall be personally liable for committing fraud or
material misrepresentation in connection with the making of the loan evidenced
hereby, to the full extent of any loss, damage, expense or costs (including
reasonable attorneys' fees) incurred by Lender resulting from such fraud or
material misrepresentation.
(a) Notwithstanding anything contained herein, if the payments
due pursuant to Paragraph 2.1(b) or (c) are not made on the Payment Date when
due, any such unpaid amount shall be a recourse obligation of Borrower who will
be personally liable for any such payment.
IN WITNESS WHEREOF, Borrower has executed and delivered this Note as of
the day and year first above written.
/s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
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