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Exhibit 10.6
RECOURSE PROMISSORY NOTE
New York, New York
$590,000 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 Payment Date" shall mean January 15, April 15, July 15,
and October 15.
1.5 "Interest Rate" shall mean eight percent (8%) per annum.
1.6 "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 the Other Note
pursuant to the Employment Agreement, or (iv) such earlier date as provided for
in the Employment Agreement.
1.7 "Original Principal Amount" shall mean Five Hundred Ninety
Thousand Dollars ($590,000).
1.8 "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
Million Six Hundred Ten Thousand Dollars ($5,610,000).
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1.9 "Outstanding Principal Balance" shall mean the portion of the
Original Principal Amount that has not been repaid.
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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 Interest Payment Date while the Note is outstanding.
(c) 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.
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, shall be due and payable on the Maturity Date.
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
payment of all amounts due and owing pursuant
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to Paragraph 3.5 hereof (if any); (b) next, toward payment of all amounts due
and owing pursuant to Paragraph 3.4 hereof (if any); (c) next, toward payment of
interest which has accrued on the Outstanding Principal Balance and which is due
and payable; and (d) 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
DEFAULTS AND REMEDIES
3.1 Security for Payment. The payment of this Note is not secured.
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
(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 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 with respect to this Note which Lender may have
at law, in equity or otherwise.
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3.3 Nature of Remedies. The remedies of Lender as provided herein
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 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 (iii) an
attorney is retained to represent Lender in any other proceedings whatsoever in
connection with this Note, 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 payment of interest 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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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:
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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, 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
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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, 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, then in such event:
(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;
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(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
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 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.
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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