Exhibit 10.9
SECOND AMENDMENT TO
PROMISSORY NOTE AND SECURITY AGREEMENT
THIS SECOND AMENDMENT TO PROMISSORY NOTE AND SECURITY AGREEMENT (this
"Second Amendment") is made and entered into as of the 16th day of May, 2002, by
and between Summit Properties Inc., a Maryland corporation (the "Company"), and
Xxxxxxx X. Xxxxxxx ("Employee").
STATEMENT OF PURPOSE
The Company pursuant to action by its Board of Directors on December
11, 2000 has agreed to amend the Promissory Note and Security Agreement entered
into between the Company and Employee as of February 2, 1999 and in original
principal amount of Four Hundred Fifty Thousand and Four Dollars and Nine Cents
($450,004.09) as amended by the First Amendment to Promissory Note and Security
Agreement(the "First Amended Note") to provide that a termination of Employee's
employment with the Company in certain circumstances does not result in a
Default under the First Amended Note in further exchange for Employee's
agreement to eliminate the provisions of the original note that limited
Employee's personal liability thereunder.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Capitalized Terms. All capitalized undefined terms used in
this Amendment shall have the meanings assigned thereto in the
First Amended Note.
2. Amendment to Section 6(a)(iii). Section 6(a)(iii) of the First
Amended Note is hereby amended by deleting the existing
Section 6(a)(iii) in its entirety and inserting the following
in lieu of thereof:
the failure by the Employee to pay the entire
outstanding balance of this Note and all accrued
interest within one hundred and twenty (120) days
after any termination of the Employee's employment
with the Company other than (A) a termination that
constitutes a No Cause Termination (as such term is
defined in that certain Employment Agreement, dated
as of February 16, 1994, between the Company and the
Employee) or (B) a termination resulting from a
Change of Control (as such term is defined in the
Company's 1994 Stock Option and Incentive Plan); or
3. Continued Viability of the Note. The First Amended Note, as amended
by this Second Amendment, shall remain in full force and effect, and this Second
Amendment shall be deemed to be incorporated into the First Amended Note and
made a part thereof. Accordingly, all provisions of the First Amended Note other
than as amended hereby shall have equal force and effect with respect to the
construction and interpretation of this Second Amendment. To the extent of any
conflict between the provisions of this Second Amendment and those of the First
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Amended Note as heretofore in effect, this Second Amendment shall control and
otherwise govern and supersede such provisions.
IN WITNESS WHEREOF, the parties hereto have caused this Second Amendment to be
duly executed under seal as of the date first above written.
SUMMIT PROPERTIES INC.
By: /S/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
EMPLOYEE
/S/ Xxxxxxx X. Xxxxxxx [SEAL]
----------------------
Xxxxxxx X. Xxxxxxx
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