AMENDED AND RESTATED REIMBURSEMENT AGREEMENT
Exhibit 10.7
EXECUTION COPY
AMENDED AND RESTATED
THIS AMENDED AND RESTATED REIMBURSEMENT AGREEMENT (this “Agreement”) is entered into as of August 10, 2020, by and among Cantor Xxxxxxxxxx Income Trust, Inc. (f/k/a Rodin Global Property Trust, Inc.), a Maryland corporation (the “Company”) and Cantor Xxxxxxxxxx Investors, LLC, a Delaware limited liability company (the “Sponsor”). Capitalized terms used herein shall have the meanings ascribed to them in Section 1.01 below.
W I T N E S S E T H
WHEREAS, the Sponsor is the sponsor of the Company;
WHEREAS, the Company has registered for public sale on Registration Statement No. 333-214130 on Form S-11, as amended, a maximum of $1,250,000,000 in shares of its common stock, $0.01 par value per share, consisting of Class A shares, Class T shares and Class I shares (collectively, the “Shares”), of which amount: (i) up to $1,000,000,000 in Shares are being offered to the public pursuant to the Company’s primary offering (the “Primary Offering”); and (ii) up to $250,000,000 in Shares are being offered to stockholders (the “Stockholders”) of the Company pursuant to the Company’s distribution reinvestment plan;
WHEREAS, the Company and the Sponsor had entered into a Dealer Manager Agreement, dated as of March 23, 2017 (the “Dealer Manager Agreement”), with Cantor Xxxxxxxxxx & Co., a New York general partnership (the “Dealer Manager”), pursuant to which the Dealer Manager offered and sold the Shares on a best efforts basis for the account of the Company and managed the sale of the Shares by other participating broker dealers, upon the terms and subject to the conditions set forth in the Dealer Manager Agreement;
WHEREAS, the Sponsor has agreed to pay certain expenses relating to selling commissions and/or dealer-manager fees of the sale of the Shares in the amount of up to four percent (4%) of gross offering proceeds incurred in the Primary Offering (the “Sponsor Expenses”);
WHEREAS, the Company, the Sponsor and Cantor Xxxxxxxxxx Income Trust OP Holdings, LLC (f/k/a Rodin Global Property Trust OP Holdings, LLC), entered into that certain reimbursement agreement dated as of March 23, 2017 (the “Original Agreement”), pursuant to which the Company has agreed to reimburse the Sponsor for the payment of Sponsor Expenses in certain circumstances; and
WHEREAS, the Company and the Sponsor desire to amend and restate the terms of the Original Agreement as set forth herein.
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NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants and agreements contained herein, the parties hereto agree as follows:
1.01 Certain Definitions. As used in this Agreement, the following terms shall have the meanings specified below:
“Advisor” means Cantor Xxxxxxxxxx Income Advisors, LLC (f/k/a Rodin Global Property Advisors, LLC)
“Advisory Agreement” means that certain Seconded Amended and Restated Advisory Agreement by and among the Company, the Advisor, the Sponsor and Cantor Xxxxxxxxxx Income Trust Operating Partnership, L.P. (f/k/a Rodin Global Property Trust Operating Partnership, L.P.) dated August 10, 2020, as amended and supplemented.
“Agreement” has the meaning set forth in the Recitals.
“Charter” means the Company’s Articles of Amendment and Restatement, as amended.
“Company” has the meaning set forth in the Recitals.
“Dealer Manager” has the meaning set forth in the Recitals.
“Dealer Manager Agreement” has the meaning set forth in the Recitals.
“Listing” means the listing of the shares of the Company’s common stock, $0.01 par value per share, on a national securities exchange.
“Primary Offering” has the meaning set forth in the Recitals.
“Shares” has the meaning set forth in the Recitals.
“Sponsor” has the meaning set forth in the Recitals.
“Sponsor Expenses” has the meaning set forth in the Recitals.
“Termination Event” means the termination or nonrenewal of the Advisory Agreement (i) in connection with a merger, sale of assets or transaction involving the Company pursuant to which a majority of the directors then in office are replaced or removed, (ii) by the Advisor for “good reason” (as defined in the Advisory Agreement) or (iii) by the General Partner other than for “cause” (as defined in the Advisory Agreement).
| 1.02 | Reimbursement. |
(a) The Company hereby agrees to reimburse the Sponsor or its designee for all Sponsor Expenses actually incurred by, or on behalf of, the Sponsor. The Company shall reimburse the Sponsor Expenses immediately prior to the occurrence of the earlier of the following events: (a) the termination or nonrenewal of the Advisory Agreement for “cause” (as defined in the Advisory Agreement), (b) a Termination Event, (c) the Listing, or (d) a merger, consolidation or sale of substantially all of the Company’s assets or any similar transaction or any transaction
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pursuant to which a majority of the board of directors of the Company then in office are replaced or remove (each, a “Reimbursement Event”). The Company only shall be obligated to reimburse the Sponsor in connection with a Reimbursement Event after (x) the Company has fully invested the proceeds from the Primary Offering and (y) the Stockholders have received, or are deemed to have received, in the aggregate, cumulative distributions equal to their invested capital plus a six percent (6%) cumulative, non-compounded annual pre-tax return on such invested capital.
(b) Subject to Section 1.02(a) hereof, the Company’s reimbursement obligations hereunder shall be due and payable within fifteen (15) days after the occurrence of a Reimbursement Event; provided, however, the Sponsor may, in its sole discretion, waive or defer all or any portion of the Sponsor Expenses.
(c) Subject only to the limitations contained in this Agreement and to any expressly applicable limitations contained in the Charter, the obligations of the Company under this Agreement are absolute, unconditional and irrevocable and shall be paid and observed, as may be applicable, strictly in accordance with the terms of this Agreement under all circumstances whatsoever.
(d) In the event of a default by the Company hereunder, the Sponsor shall have all remedies available at law or in equity. In addition, the rights granted to the Sponsor pursuant to this Agreement are not the exclusive remedies available to the Sponsor in connection with the Company’s reimbursement obligations hereunder or actions related thereto, and the Sponsor shall have all other remedies available to it at law or in equity.
1.03 Notices. Any notice, report or other communication required or permitted to be given hereunder shall be in writing unless some other method of giving such notice is accepted by the party to whom it is given, and shall be given by personal delivery or by overnight mail or other overnight delivery service to the following addresses:
| To the Company: | Cantor Xxxxxxxxxx Income Trust, Inc. 000 Xxxx 00xx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 Attn: General Counsel | |
| To the Sponsor and the Special Unit Holder: |
Cantor Xxxxxxxxxx Investors, LLC 000 Xxxx 00xx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 Attn: General Counsel | |
Either party may at any time give notice in writing to the other party of a change in its address for the purposes of this Section 1.03.
1.04 Successors and Assigns. This Agreement shall be binding upon the parties hereto and their respective executors, administrators, legal representatives, heirs, successors and assigns, and shall inure to the benefit of the parties hereto and, except as otherwise provided herein, their respective executors, administrators, legal representatives, heirs, successors and assigns.
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1.05 Modification. This Agreement shall not be changed or modified, in whole or in part, except by an instrument in writing signed by the parties hereto, or their respective successors or permitted assigns.
1.06 Severability. The provisions of this Agreement are independent of and severable from each other, and no provision shall be affected or rendered invalid or unenforceable by virtue of the fact that for any reason any other or others of them may be invalid or unenforceable in whole or in part.
1.07 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York applicable to agreements made and to be performed wholly within that State without regard to the principles of conflicts of laws. Each of the parties hereto hereby irrevocably submits to the jurisdiction of any New York State court sitting in the Borough of Manhattan in the City of New York or any federal court sitting in the Borough of Manhattan in the City of New York in respect of any suit, action or proceeding arising out of or relating to this Agreement.
1.08 Entire Agreement. This Agreement contains the entire agreement and understanding between the parties hereto with respect to the subject matter hereof.
1.09 Interpretation. Words used herein regardless of the number and gender specifically used, shall be deemed and construed to include any other number, singular or plural, and any other gender, masculine, feminine or neuter, as the context requires.
1.10 Headings. The titles of Sections contained in this Agreement are for convenience only, and they neither form a part of this Agreement nor are they to be used in the construction or interpretation hereof.
1.11 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original as against any party whose signature appears thereon, and all of which together shall constitute one and the same instrument. This Agreement shall become binding when one or more counterparts hereof, individually or taken together, shall bear the signatures of all of the parties reflected hereon as the signatories.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year first above written.
| CANTOR XXXXXXXXXX INCOME TRUST, INC. | ||
| By: |
/s/ Xxxxxxxxxxx Xxxxxx | |
| Name: Xxxxxxxxxxx Xxxxxx | ||
| Title: President | ||
| CANTOR XXXXXXXXXX INVESTORS, LLC | ||
| By: |
/s/ Xxxx Xxxxxx | |
| Name: Xxxx Xxxxxx | ||
| Title: Chief Operating Officer | ||
[Signature Page to Reimbursement Agreement]
