REIMBURSEMENT AGREEMENT
EXHIBIT
10.9
This
Reimbursement Agreement (this “Agreement”), dated as
of June 15, 2010, is entered into by and among AMERICAN REALTY CAPITAL NEW YORK
RECOVERY REIT, INC., a Maryland corporation (the “Company”), Xxxxxxxx
X. Xxxxxxxx and Xxxxxxx X. Xxxxxx.
WHEREAS,
the Company, Xxxxxxxx X. Xxxxxxxx and Xxxxxxx X. Xxxxxx have entered into that
certain Guaranty and Indemnity Agreement (the “Guaranty Agreement”)
dated of even date herewith pursuant to which the Company, Xx. Xxxxxxxx and Xx.
Xxxxxx have guaranteed the obligations of ARC NYE61ST001, LLC (the
“Borrower”) in
favor of U.S. Bank National Association (the “Lender”) under that certain Loan
Assumption Agreement and Amendment of Loan Documents with respect to a loan (the
“Loan”)
evidenced by a Promissory Note in the original principal amount of $15,850,000
held by the Lender. Capitalized terms used herein but not defined
shall have the meanings ascribed to them in the Guaranty Agreement.
NOW,
THEREFORE, in consideration of the mutual covenants and agreements and the
representations and warranties contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
1. Reimbursement. In
the event that Lender makes any monetary claim under the Guaranty Agreement, the
Company hereby agrees that it will be primarily responsible to to pay the Lender
the full monetary amount claimed, and Xx. Xxxxxxxx and Xx. Xxxxxx shall only be
liable to pay the Lender if the Company does not have the ability to
satisfy the claim after exhausting all possible means of
satisfaction.
2. Term. This
Agreement shall remain in full force and effect until the earliest of (i) the
termination of the Guaranty Agreement or (ii) the Borrower’s full repayment of
the outstanding principal balance of the Loan and all interest accrued
thereon.
3. Assignment. This
Agreement shall be binding upon and inure to the benefit of and be enforeceable
by the parties hereto and their respective executors, heirs, personal and legal
representatives, successors and assigns.
4. Governing
Law. This Agreement shall be governed by and construted in
accordance with the laws of the State of New York.
5. Notices. All
notices, requests and other communications hereunder must be in writing and will
be deemed to have been duly given only if delivered personally against written
receipt or facsimile transmission or mailed (by registered or certified mail,
return receipt requested) or by reputable overnight courier, fee prepaid to the
parties at the following addresses or facsimile numbers:
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(a)
|
if
to the Company:
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American
Realty Capital New York Recovery REIT, Inc.
000 Xxxx
Xxxxxx
Xxx Xxxx,
XX 00000
Attention: Xxxxx
X. Block, Chief Financial Officer
Fax:
000-000-0000
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(b)
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if
to Xxxxxxxx X. Xxxxxxxx or Xxxxxxx X.
Xxxxxx:
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c/o
American Realty Capital III, LLC
000 Xxxx
Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Fax:
000-000-0000
All such
notices, requests and other communications will (w) if delivered personally to
the addressee as provided in this Section 5, be deemed given upon delivery, (x)
if delivered by facsimile transmission to the facsimile number as provided in
this Section 5, be deemed given upon receipt, (y) if delivered by mail in the
manner prescribed above to the address as provided in this Section 5, be deemed
given upon receipt and (z) if delivered by reputable overnight courier to the
address as provided in this Section 5, be deemed given upon
receipt. Any party may from time to time change its address,
facsimile number or other information for the purpose of notices by giving
notice specifying such change to the other parties hereto.
[Signature
Page Follows]
IN
WITNESS WHEREOF, the undersigned parties hereto have executed this Agreement on
ad as of the day and year first above written.
| AMERICAN REALTY CAPITAL NEW YORK RECOVERY REIT, INC. | |||
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By:
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/s/ Xxxxx X. Block | |
| Name: | Xxxxx X. Block | ||
| Title: | Chief Financial Officer | ||
| /s/ Xxxxxxxx X. Xxxxxxxx | |||
| XXXXXXXX X. XXXXXXXX | |||
| /s/ Xxxxxxx X. Xxxxxx | |||
| XXXXXXX X. XXXXXX | |||
