**Exhibit10.23**

 

**DEMANDPROMISSORY NOTE**

 
| $95,062.50 |   |   | New York, NY |
|------------|--------|--------|--------------|
|       |   |   | July 1, 1997 |

 

FORVALUE RECEIVED, DEANBERNSTEIN, an individual having an address at 18 FAR HILLS LANE, PLEASANTVILLE,NY 10570 (“Maker”), does hereby promise and covenant to pay to the order of NEW PLAN REALTY TRUST, aMassachusetts business trust (“NPRT”), at its office located at 1120 Avenue ofthe Americas, New York, NY 10036, ON DEMAND, the principal sum of NINETY FIVETHOUSAND SIXTY TWO AND 50/100 ($95,062.50) DOLLARS (the “Principal Sum”),together with interest at the rate of five (5%) percent per annum on the unpaidbalance of the Principal Sum from (and including) the date hereof until (butnot  including)the date the Principal Sum is paid in full.

 

Interest on the unpaid balance of the Principal Sum shall be due andpayable in arrears on the first business day of each October, January, Apriland July, commencing on October 1, 1997, and continuing thereafter until (butnot including) the date the Principal Sum is paid in full.  Interest on the unpaid balance of thePrincipal sum shall be computed on the basis of a three hundred sixty-five(365) day year (for the actual number of days elapsed).

 

Notwithstanding the foregoing, on the death of the Maker or on the Maker’stermination of employment with New Plan Realty Trust, the entire principal sumwith accrued interest shall be due and payable on the thirtieth day following the date of the Maker’s death orlast day of Maker’s employment with New Plan Realty Trust.

 

Upon default in thepayment of any installmentof interest when due, and if said default shall remain uncured for aperiod of fifteen (15) days after written notice of such default to Maker, thenthe entire unpaid Principal Sum remainingat the time unmatured, together with accrued and unpaid interest thereon,shall, at the election of NPRT, become immediately due and payable.

 

During any period this Note is in default, at the election of NPRT, theunpaid balance of the Principal Sum shall bear interest at a rate which is equalto two (2%) percent per annum greater than the interest rate otherwise chargedhereunder.

 

Notwithstanding anything in this Note to the contrary, nothing hereincontained nor any transaction related hereto shall be construed, or shalloperate either presently or prospectively, to (a) require Maker to pay, or NPRTto accept, interest at a rate greater than that which is lawful in such case tocontract for, but shall require payment of interest only to the extent of suchlawful rate, or (b) require Maker to make any payment or do any act contrary tolaw.  Should NPRT receive any paymentwhich is or would be in excess of that permitted to be charged under 

 

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applicable law, the amount of such excess shall havebeen, and shall be deemed to have been, made in error and shall, at the optionof NPRT be returned to Maker or applied to the Principal Sum.

 

This Note may be prepaid in whole or in part at any time withoutpremium or penalty, provided that any such prepayment shall be accompanied bythe payment of unpaid accrued interest on the amount of such prepayment, andprovided that any such prepayment shall not postpone the due date of anysubsequent installment of principal or interest or change the amount of anysuch installment.

 

Maker hereby waives presentment and demand for payment, notice ofdishonor, protest and notice of protest of this Note, and agrees to pay allcosts of collection when incurred including, without limitation, reasonableattorneys’ fees and disbursements.  Noextension of time for payment of this Note, or any installment hereof, and noalteration, amendment or waiver of any provision of this Note shall release,discharge, modify, change or otherwise affect the liability of Maker under thisNote.  The obligations of Maker underthis Note are absolute, and Maker waives any and all rights to offset, deductor withhold any payments or charges due hereunder for any reasonwhatsoever.  Maker hereby waives a trialby jury of any and all issues arising in any action or proceeding connectedwith Note.

 

Acceptance by NPRT of any payment in an amount less than the amountthen due shall be deemed an acceptance on account only, and the failure to paythe entire amount then due shall be and continue to be an event of default.

 

The remedies of NPRT as provided herein shall be cumulative and concurrent and may be pursuedindependently, successively or together, at the sole discretion of NPRT, andmay be exercised as often as occasion therefor shall occur, and the failure toexercise any such right or remedy shall not be construed as a waiver or release thereof.

 

No delay or omission on the part of NPRT in the exercising of any righthereunder shall operate as a waiver of such rights, or of any right under thisNote, unless such waiver is in writing and signed by NPRT; and thenonly to the extent specifically set forth in the writing.  A waiver on any one occasion shall no beconstrued as continuing, or as a bar to, or waiver of, any such right on any future occasion.

 

This Note may not be changed or terminated orally, but only by anagreement in writing signed by the party against whom enforcement of suchchange or termination is sought.

 

Neither Maker nor NPRT shall assign or otherwise transfer this Note (inwhole or inpart), or delegate any or all of its respective obligations hereunder, withoutthe prior written consent of the other party, which consent may be withheld bysuch party for any reason or for no reason.

 

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This Note shall be binding upon and inure to the benefit of and beenforceable by the respective successors, permitted assignees, heirs,administrators, estates and personal representatives of the partieshereto.  All references to NPRT shallinclude its sucessors and permitted assigns and all references to Maker shallinclude his heirs, administrators, estates and personal representatives.

 

If any term or provision of this Note or the application thereof to anyperson or circumstance shall, to any extent, be invalid or unenforceable, theremainder of this Note, or the application of such term or provision to personsor circumstances other than those as to which it is held invalid orunenforceable, shall not be affected thereby, and each term and provision ofthis Note shall be valid and be enforced to the fullest extent permitted bylaw.

 

This Note shall be governed by, and construed and enforced inaccordance with, the internal laws in effect in the State of New York.

 

This Agreement and all documents, agreements, understandings andarrangements relating to this transaction have been negotiated, executed anddelivered on behalf of New Plan Realty Trust by the Trustees or officersthereof in their representative capacity under the Declaration of Trust of NewPlan Realty Trust dated as of July 31, 1972 as amended, and not individually,and bind only the Trust Estate of New Plan Realty Trust, and no Trustee,officer, employee, agent or shareholder of New Plan Realty Trust shall be boundor held to any personal liability in connection with the obligations of NewPlan Realty Trust thereunder, and any person or entity dealing with New PlanRealty Trust in connection therewith shall look solely to the Trust Estate forthe payment of any claim or for the performance of any obligation hereunder.

 

The foregoing shall also apply to any-future documents, agreements,understandings, and arrangementswhich may relate to this transaction.

 

IN WITNESS WHEREOF, the undersigned, intending to be legally boundhereby, has fully executed this Note as of this 1st day of July, 1997.

 
|   | /s/  DEAN BERNSTEIN |   |
|--------|---------------------|--------|
|   | DEAN BERNSTEIN      |

 

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