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Exhibit 10.75
PAYMENT OF FEES AGREEMENT
THIS ASSIGNMENT is made as of August 27, 1998 by Crown
NorthCorp EURO A/S ("Crown Euro") and Xxxxxxx Management Corporation
("Harbert").
BACKGROUND:
1. Crown NorthCorp, Inc. ("Crown"), the parent of Crown EURO, and Harbert have
agreed pursuant to a certain letter agreement dated July 17, 1998, for
Xxxxxxx and MarRay Investment, LLC ("MarRay"), to form and contribute the
U.S. dollar equivalent of approximately 115,648,804 Swedish kroner ("SK")
to the capital of HMR Sweden, LLC, a Delaware limited liability company
("HMRS"), enabling HMRS to acquire an interest in Telereit Holding AB,
pursuant to a certain Shareholders' Agreement referenced in the Asset
Management Agreement (the formation and contribution to capital caused by
Harbert and MarRay is hereinafter referred to as the "MarRay Investment").
Crown has agreed to contribute, or cause an affiliate to contribute, the
U.S. dollar equivalent of approximately SK19,187,157 to the capital of
HMRS.
2. In consideration of the MarRay Investment, Crown has agreed to enter into
appropriate documentation causing Xxxxxxx or its designee to be paid an
amount equivalent to a certain percentage of certain fees received by
Catella/Crown NorthCorp Joint Venture AB (the "Asset Manager") under a
certain Asset Management Agreement made the 21st day of July, 1998, between
Telereit Holding AB and the Asset Manager (the "Asset Management
Agreement").
3. Crown EURO is a member of the Asset Manager.
4. This Agreement is the documentation causing such payment of fees to Harbert
or its designee.
STATEMENT OF AGREEMENT:
1. AMOUNT. Crown EURO shall pay, as provided in ss.2, to Xxxxxxx (or any
other person designated by notice of Harbert to Crown EURO) an amount
equal to the following percentage of the following fees received by the
Asset Manager pursuant to the Asset Management Agreement during the
term of this Agreement (the "Assigned Fees"):
(a) Until the effective date of the Management Fee (referred to
herein as the "Renegotiated Management Fee") to be negotiated
by the parties as contemplated by second sentence of section
8.2 of the Asset Management Agreement, an amount equal to
12.5% of the Management Fee received by the Asset Manager
pursuant to the first sentence of section 8.2 of the Asset
Management Agreement. Crown EURO and Harbert understand and
agree that, during this initial period, the Asset Management
Agreement is a "cost plus" contract and that the payment set
forth in this subsection ((a)) shall be net of all direct
costs and expenses of Crown EURO and the Asset Manager.
(b) Upon and after the effective date of the Renegotiated
Management Fee, an amount equal to the excess of (i) 12.5% of
the Management Fee received by the Asset Manager pursuant to
section 8.2 of the Asset Management Agreement over (ii) 12.5%
of the direct costs and expenses of the Asset Manager and
Crown EURO (A) in performing the
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services under the Asset Management Agreement for which the
Management Fee is compensation, and (B) in collecting the
Management Fee (including any court cost and attorney fees).
(c) An amount equal to the excess of (i) 12.5% of the Disposition
Fee received by the Asset Manager pursuant to section 8.3 of
the Asset Management Agreement over (ii) 12.5% of the direct
costs and expenses of the Asset Manager and Crown EURO (A) in
performing the services under the Asset Management Agreement
for which the Disposition Fee is compensation and (B) in
collecting the Disposition Fee (including any court cost and
attorney fees).
(d) An amount equal to the excess of (i) 37.5% of the Promote Fee
received by the Asset Manager pursuant section 8.4 of the
Asset Management Agreement over (ii) 37.5% of the direct costs
and expenses of the Asset Manager and Crown EURO in collecting
the Promote Fee (including any court costs and attorney fees).
(e) An amount equal to the excess of (i) the sum of (A) 12.5% of
the termination fee received by the Asset Manager pursuant to
section 13.2(a) of the Asset Management Agreement and (B)
37.5% of the Promote Fee received by the Asset Manager
pursuant to section 13.2(c) of the Asset Management Agreement
over (ii) the sum of (A) 12.5% of the direct costs and
expenses of the Asset Manager and Crown EURO in collecting the
termination fee (including any court costs and attorney fees)
and (B) 37.5% of the direct costs and expenses of the Asset
Manager and Crown EURO in collecting the Promote Fee
(including any court costs and attorney fees).
Crown EURO covenants and agrees not to amend, modify, or waive any
provision of the Asset Management Agreement which relates to any of the
Assigned Fees payable thereunder except for negotiating, finalizing,
and effecting the Renegotiated Management Fee.
2. PAYMENT. Payment of any amount due under ss.1 shall be due and payable
by Crown EURO within 30 calendar days after receipt by the Asset
Manager of the Assigned Fee giving rise to such payment under ss.1.
Payment shall be to the order of Harbert or it designee in the same
currency as the Assigned Fee is received by the Asset Manager.
3. DIRECT COSTS AND EXPENSES. For purpose of determining the amounts due
under ss.1, direct costs and expenses shall mean those expenses
properly reportable by the Asset Manager and Crown EURO as a direct
cost or expense consistent with the provisions of the operations under
the Asset Management Agreement with respect to the preparation of
statements of its income and expenses for the period in which the
applicable Assigned Fee is received.
4. TERM. The term of this Agreement shall be for the period commencing
July 17, 1998, and ending on the earliest of:
(a) Termination of the Asset Management Agreement;
(b) Cessation of Crown EURO's interest, directly or indirectly
through any affiliate, in the Asset Manager or any other event
resulting in Crown EURO and its affiliates having no interest
in, or right to receive payment of, any of the Assigned Fees;
or
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(c) Closing of the purchase of all right, title, and interest of
the Xxxxxxx Parties in and to HMRS within the meaning and as
provided by a certain Purchase Option Agreement made
contemporaneously with this Agreement.
Notwithstanding ss.4((b)), Crown EURO shall not, without Xxxxxxx'x
consent, engage, or permit any affiliate of it to engage voluntarily in
any sale or other disposition of Crown EURO's interest, directly or
indirectly, in the Asset Manager or in any of the Assigned Fees to a
party that is not controlled by, under common control with or
controlling Crown EURO.
5. MISCELLANEOUS.
(a) AMENDMENT/WAIVER. No amendment or waiver of any provision of
this Agreement shall be effective against any party hereto
unless in writing signed by that party.
(b) HEADINGS. The captions or headings in this Agreement are not
part of the context of this Agreement, are only labels to
assist in the locating and reading of portions of this
Agreement, and in no way define, limit, or describe the scope
or intent of any of the provisions of this Agreement.
(c) COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original and all of
which shall constitute one and the same document.
(d) SEVERABILITY. If any provision of this Agreement is or becomes
invalid, illegal, or unenforceable in any jurisdiction for any
reason, such invalidity, illegality, or unenforceability shall
not affect the remainder of this Agreement, and the remainder
of this Agreement shall be construed and enforced as if such
invalid, illegal, or unenforceable portion were not contained
herein.
(e) NOTICE. Any notice to be given to a party hereunder shall be
given by United States certified mail or by personal delivery,
with return receipt by the addressee requested, and addressed
to such party at the address designated below or at any other
address most recently designated by that party for this
purpose:
(1) To Crown EURO:
c/o Crown NorthCorp, Inc.
0000 Xxxxxx Xxxx
Xxxxxxxx, Xxxx 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
(2) To Harbert:
Xxxxxxx Management Corporation
Xxx Xxxxxxxxxx Xxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxx
Any notice shall be deemed given upon the date of receipt
stated in the returned receipt or, if the address most
recently specified by the addressee as provided above is not a
valid address, the date of a returned receipt or other
certification of the United States
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post office for such address certifying that the same is not a
valid mailing address and that no forwarding address is known
to such post office.
(f) SUCCESSORS. This Agreement shall inure to the benefit of, and
be binding upon, each party and that party's respective
successors and assigns.
(g) COMPLETE AGREEMENT. This Agreement contains the entire
agreement between the parties and supersedes any prior
understanding or agreements between them respecting any matter
covered by this Agreement.
(h) GOVERNING LAW. This Agreement shall be governed by and
construed under the laws of the State of Ohio, United States
of America.
Crown NorthCorp EURO A/S Xxxxxxx Management Corporation
By: /s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxxxx X. Xxxx
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Its: Authorized Signatory Its: EVP and CFO
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