1
EXHIBIT 10.73
THE SECURITY REPRESENTED BY THIS INSTRUMENT HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, ASSIGNED, TRANSFERRED
OR OTHERWISE DISPOSED OF UNLESS SO REGISTERED OR UNLESS AN EXCEPTION FROM SUCH
REGISTRATION IS AVAILABLE
SECURED NON-RECOURSE PROMISSORY NOTE
------------------------------------
$700,000 Chicago, Illinois
April 7, 1997
FOR VALUE RECEIVED, the undersigned, XXXXX X. XXXXXX (the "Borrower"),
hereby promises to pay to AMBASSADOR APARTMENTS, L.P., ("Lender"), the
principal amount of SEVEN HUNDRED THOUSAND DOLLARS ($700,000), together with
interest accruing from the date hereof until maturity on the principal amount
from time to time remaining unpaid hereunder computed on the basis of a 365-day
year at a rate of SIX AND THIRTY-EIGHT HUNDREDTHS percent (6.38%) per annum.
The Borrower shall use the principal amount of this Note advanced to the
Borrower to purchase 32,990 common units of partnership interest in the Lender
(the "Pledged Common Units").
1. Payment of Principal and Interest. The Borrower shall pay to the
Lender any and all accrued and unpaid interest on this Note, quarterly in
arrears, which payment shall be due on the same date as regular quarterly
distributions are made with respect to the Pledged Common Units; provided,
however, that any such payment of interest shall be in respect of (and based
upon the number of days in) the fiscal quarter of Lender that the corresponding
distribution is in respect of. If no such distribution is made by the last day
of the second month of any fiscal quarter of the Lender, then on such date the
Borrower shall pay to the Lender any and all accrued and unpaid interest on
this Note as of the last day of the immediately preceding fiscal quarter. Any
and all distributions to which the Borrower may be entitled under the terms of
the Amended and Restated Agreement of Limited Partnership of Ambassador
Apartments, L.P. dated as of August 31, 1994, as amended through the date
hereof (the "Partnership Agreement"), in respect of the Pledged Common Units
shall immediately be applied by the Lender first to pay any and all accrued and
unpaid interest on this Note required to be paid by Borrower pursuant to the
first two sentences of this Section 1, with the Borrower being entitled to
receive and retain the amount of cash distributions, if any, which are in
excess of such interest payments ("Excess Distributions"). In addition, the
proceeds of the transfer of all or any portion of the Pledged Common Units
(which transfer requires the prior written consent of the Lender, which it may
withhold in its sole discretion)
2
shall be applied by the Lender first to pay any and all accrued and unpaid
interest on this Note and then to pay any unpaid principal on this Note. All
principal and interest which have not theretofore been prepaid pursuant to the
previous four sentences shall be due and payable on the earlier of (i) June 30,
2000, and (ii) six months after the termination of Borrower's employment with
the Company and the Partnership for any reason; provided, however, that the
June 30, 2000, maturity date of this Note shall not be accelerated by any
termination of the Employment Term (as defined in the Employment Agreement,
dated as of the date hereof, between Ambassador Apartments, Inc. and the
undersigned (the "Employment Agreement")) pursuant to Sections 5(a)(i),
5(a)(iii), 5(b)(i) (other than pursuant to clause (z) of the definition of Good
Reason (as defined in the Employment Agreement) or 5(c) of the Employment
Agreement. In addition, the accelerated maturity date applicable to any other
termination of the Employment Term (i.e., the date which is 6 months following
such termination) shall be extended by the duration of and for so long as there
shall exist any blackout period or other condition not in the control of
Executive which becomes operative during the period following such termination
and which prohibits the conversion of the Pledged Common Units, or a delay not
in the control of Borrower in registering the Common Stock of Ambassador
Apartments, Inc. received upon conversion of the Pledged Common Units for sale,
either due to the pendency of a registration blackout or caused by the
unavailability of such a registration statement or a prospectus as may be
necessary for such sale to be effectuated. The intent of the foregoing
extensions of the accelerated maturity date is to afford Borrower the full
benefit of a "normal" six-month period following termination of her employment
in which to convert the Pledged Common Units and to sell such Common Stock, so
as to be able to repay this Note.
2. Security Interest; Exculpation. All of the obligations of the Borrower
constitute one loan secured by the Lender's security interests in the Pledged
Common Units pledged by the Borrower to the Lender pursuant to that certain
Pledge and Security Agreement date of even date herewith executed by the
Borrower and the Lender (the "Pledge Agreement"), and by all other security
interests, liens, mortgages, claims and encumbrances now or from time to time
hereafter granted by the Borrower to the Lender under the Pledge Agreement
(collectively, the "Collateral"). Notwithstanding anything to the contrary
contained herein or in any documents or instruments at any time evidencing or
securing the Loan (including the Pledge Agreement), this Note and the
obligations and liabilities evidenced or secured hereby, or by such documents
and instruments, are non-recourse, and it is understood and agreed that the
Borrower shall not be personally liable for the repayment of this Note, or any
of such obligations or liabilities, and that in any proceeding for the
enforcement of the indebtedness evidenced by this Note,
-2-
3
or such obligations or liabilities, the Lender shall only have the right to
exercise its lien on, or security interest in, the Collateral, and may not seek
or obtain any personal or other judgment against the Borrower or any other
person personally or any other assets or properties of the Borrower or any
other person.
3. Default. The occurrence of any of the following events shall
constitute an "Event of Default" under this Note:
(i) the Borrower fails to pay any of its obligations,
including, without limitation, any payment of interest or
principal under this Note, when such obligations are due;
(ii) the Borrower fails or neglects to perform, keep or
observe any of the covenants, conditions or agreements contained
in this Note;
(iii) any warranty or representation now or hereafter made by
the Borrower in connection with this Note is untrue or incorrect in
any material respect;
(iv) bankruptcy, reorganization, receivership, insolvency or
other similar proceedings shall be instituted by or against the
Borrower or all or any part of the Borrower's property under the
Federal Bankruptcy Act or other law of the United States or of any
state or other competent jurisdiction and, if against the
Borrower, the Borrower shall consent thereto or shall fail to
cause the same to be discharged within 30 days;
(v) any "Event of Default" as such term is defined in the Pledge
Agreement.
4. Deliveries. Simultaneously with the execution of this Note, the
Borrower shall deliver to the Lender the following:
(i) the Pledge Agreement executed by the Borrower; and
(ii) a direction letter ("Direction Letter") executed by the
Borrower to the Lender of even date herewith requesting and
authorizing the Lender to (a) apply all distributions to which the
Borrower is entitled under the Partnership Agreement directly
against the accrued and unpaid interest due and payable by the
Borrower under this Note and (b) deliver any Excess Distributions
to the Borrower.
-3-
4
5. Form and Place of Payment. Payments on this Note shall be in lawful
currency of the United States of America. Payments shall be applied by the
Lender against the Borrower's obligations under this Note as provided herein.
6. Binding Effect. This Note has been duly executed and delivered by the
Borrower, is the legal, valid and binding obligation of the Borrower and is
enforceable against the Borrower in accordance with its terms.
7. Business Address. As of the execution hereof, the Borrower's principal
and only place of business and residence are located at the addresses set forth
in Section 14. The Borrower shall give the Lender at least 15 days' prior
written notice of any change in the Borrower's principal place of business or
residence. With respect to any such new business or residence location, the
Borrower shall execute and deliver to the Lender such documents and take such
actions as the Lender deems reasonably necessary to perfect and protect the
Lender's security interest in the Pledged Common Units.
8. Reliance by the Lender. All covenants, agreements, representations and
warranties made herein or in the Pledge Agreement by the Borrower shall,
notwithstanding any investigation by the Lender, be deemed to be material to
and to have been relied upon by the Lender.
9. Parties and Assignment. Whenever in this Note, a reference is made to
any of the parties hereto, such reference shall be deemed to include, wherever
applicable, a reference to the successors and assigns of the Borrower and the
Lender. Notwithstanding the foregoing, the Borrower may not sell, assign or
transfer this Note, or the Pledge Agreement or any portion thereof, including,
without limitation, its rights, titles, interests, remedies, powers or duties
hereunder or thereunder.
10. APPLICABLE LAW; SEVERABILITY. THIS NOTE AND THE PLEDGE AGREEMENT HAVE
BEEN SUBMITTED TO THE LENDER AT ITS OFFICE IN CHICAGO, ILLINOIS, AND THIS NOTE
AND THE PLEDGE AGREEMENT, SHALL NOT BE BINDING UPON THE LENDER OR EFFECTIVE
UNTIL ACCEPTED BY THE LENDER AND SHALL BE CONSTRUED AND ENFORCED IN ALL
RESPECTS IN ACCORDANCE WITH, AND GOVERNED BY, ALL OF THE PROVISIONS OF THE
UNIFORM COMMERCIAL CODE OF THE STATE OF ILLINOIS AND BY THE OTHER INTERNAL LAWS
(AS OPPOSED TO CONFLICT OF LAWS PROVISIONS) OF THE STATE OF ILLINOIS. WHENEVER
POSSIBLE, EACH PROVISION OF THIS NOTE SHALL BE INTERPRETED IN SUCH A MANNER AS
TO BE EFFECTIVE AND VALID UNDER APPLICABLE LAW, BUT IF ANY PROVISION OF THIS
NOTE SHALL BE PROHIBITED BY OR INVALID UNDER APPLICABLE LAW, SUCH PROVISION
SHALL BE INEFFECTIVE ONLY TO THE EXTENT OF SUCH PROHIBITION OR INVALIDITY,
WITHOUT INVALIDATING THE REMAINDER OF
-4-
5
SUCH PROVISIONS OR THE REMAINING PROVISIONS OF THIS NOTE, PROVIDED THAT WHERE
SUCH PROVISIONS MAY BE WAIVED, THEY HEREBY ARE WAIVED BY THE BORROWER TO THE
FULL EXTENT PERMITTED BY LAW TO THE END THAT THIS NOTE SHALL BE DEEMED TO BE
VALID AND BINDING IN ACCORDANCE WITH ITS TERMS.
11. SUBMISSION TO JURISDICTION; WAIVER OF JURY AND BOND. THE BORROWER
HEREBY CONSENTS TO THE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED
WITHIN CHICAGO IN THE STATE OF ILLINOIS, AND IRREVOCABLY AGREES THAT, SUBJECT
TO THE LENDER'S SOLE AND ABSOLUTE ELECTION, ALL ACTIONS OR PROCEEDINGS RELATING
TO THIS NOTE AND THE PLEDGE AGREEMENT SHALL BE LITIGATED IN SUCH COURTS, AND
THE BORROWER WAIVES ANY OBJECTION WHICH THE BORROWER MAY HAVE BASED ON IMPROPER
VENUE OR FORUM NON CONVENIENS TO THE CONDUCT OF ANY PROCEEDING IN ANY SUCH
COURT AND WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS UPON THE BORROWER, AND
CONSENTS THAT ALL SUCH SERVICE OF PROCESS BE MADE BY MAIL OR MESSENGER DIRECTED
TO THE BORROWER AT THE ADDRESS SET FORTH IN SECTION 14 AND THAT SERVICE SO MADE
SHALL BE DEEMED TO BE COMPLETED UPON THE EARLIER OF ACTUAL RECEIPT OR FIVE DAYS
AFTER THE SAME SHALL HAVE BEEN POSED TO THE BORROWER'S ADDRESS. THE LENDER AND
THE BORROWER ACKNOWLEDGE THAT THE TIME AND EXPENSE REQUIRED FOR TRIAL BY JURY
EXCEED THE TIME AND EXPENSE REQUIRED FOR A BENCH TRIAL AND HEREBY WAIVE, TO THE
EXTENT PERMITTED BY LAW, TRIAL BY JURY, AND WAIVE ANY BOND OR SURETY OR
SECURITY UPON SUCH BOND WHICH MIGHT, BUT FOR THIS WAIVER, BE REQUIRED OF THE
LENDER. NOTHING CONTAINED IN THIS SECTION 11 SHALL AFFECT THE RIGHT OF THE
LENDER TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR AFFECT
THE RIGHT OF THE LENDER TO BRING ANY ACTION OR PROCEEDING AGAINST THE BORROWER
OR THE PLEDGED COMMON UNITS IN THE COURTS OF ANY OTHER JURISDICTION.
12. Section Titles. The section and subsection titles contained in this
Agreement shall be without substantive meaning or content of any kind
whatsoever and are not a part of the agreement between the parties.
13. Incorporation by Reference. The provisions of the Pledge Agreement
are incorporated in this Note by this reference. Except as otherwise provided
in this Note and except as otherwise provided in the Pledge Agreement by
specific reference to the applicable provisions of this Note, if any provision
contained in this Note is in conflict with, or inconsistent with, any
provisions in the Pledge Agreement, the provision contained in this Note shall
govern and control.
14. Notices. Except as otherwise expressly provided herein, any notice
required or desired to be served, given or delivered hereunder shall be in
writing, and shall be deemed to have been validly served, given or delivered
five days after deposit in the United States mails, with proper postage
prepaid,
-5-
6
or upon deliver by courier or upon transmission by telex, telecopy or similar
electronic medium to the following addresses:
If to the Lender: Ambassador Apartments, L.P.
00 Xxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Chief Executive Officer
And a copy to: Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx, P.C.
If to the Borrower: Xxxxx X. Xxxxxx
Residence:
000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Business:
x/x Xxxxxxxxxx Xxxxxxxxxx, Xxx.
00 Xxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
(Notices to be sent to residence address)
And a copy to: Barrack Xxxxxxxxxx Xxxxxxxxxx Xxxxxxx &
Xxxxxxxxx
000 Xxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx
or to such other address as each party designates to the other in the manner
herein prescribed.
15. Waivers. The Borrower, for herself and her heirs, successors and
assigns, expressly waives presentment, demand, protest, notice of presentment,
notice of protest, notice of dishonor, notice of nonpayment, notice of maturity
and presentment for the purpose of accelerating maturity and diligence in
collection.
16. Entire Agreement. This Notice, the Pledge Agreement and the Direction
Letter, including all exhibits and other documents attached hereto or thereto
or incorporated by reference herein or therein, constitute the entire agreement
of the parties with respect to the subject matter hereof and supersede all
other understandings, oral or written, with respect to the subject matter
hereof.
-6-
7
17. No Fiduciary Relationship. No provision herein or in the Pledge
Agreement and no course of dealing between the parties shall be deemed to
create any fiduciary relationship between the Lender and the Borrower.
18. COUNSEL. THE BORROWER ACKNOWLEDGES THAT THE BORROWER HAS BEEN ADVISED
BY COUNSEL OF THE BORROWER'S CHOICE WITH RESPECT TO THIS NOTE AND THE
TRANSACTIONS CONTEMPLATED HEREBY, AND THE BORROWER ACKNOWLEDGES AND AGREES THAT
(i) EACH OF THE WAIVERS SET FORTH HEREIN WERE KNOWINGLY AND VOLUNTARILY MADE,
(ii) THE OBLIGATIONS OF THE LENDER HEREUNDER SHALL BE STRICTLY CONSTRUED AND
SHALL BE EXPRESSLY SUBJECT TO THE BORROWER'S COMPLIANCE IN ALL RESPECTS WITH
THE TERMS AND CONDITIONS HEREIN SET FORTH, AND (iii) NO REPRESENTATIVE OF THE
LENDER HAS WAIVED OR MODIFIED ANY OF THE PROVISIONS OF THIS NOTE AS OF THE DATE
HEREOF.
_________________________
XXXXX X. XXXXXX,
without personal recourse
-7-
