REIMBURSEMENT AND FEE AGREEMENT
Exhibit 10.13
THIS REIMBURSEMENT AND FEE AGREEMENT dated as of November 20, 2009 (this “Agreement”)
by and between TNP SRT Xxxxxx Marketplace, LLC, a Delaware limited liability company (the
“Borrower”), an indirect subsidiary of TNP Strategic Retail Trust, Inc., a Maryland
corporation (“TNP SRT”), and Xxxxxxx X. Xxxxxxxx, an individual (the “Guarantor”).
WHEREAS, pursuant to that certain Promissory Note dated as of November , 2009, executed by
Borrower, unconditionally guaranteed by TNP SRT and payable to the order of Key Bank National
Association, a national banking association (the “Lender”), in the maximum principal amount
of $9,250,000 (together with all renewals, modifications, increases, and extensions thereof, the
“Note”), the Borrower has become indebted, and may from time to time be further indebted,
to the Lender with respect to a loan made by the Lender to the Borrower (the “Loan”). The
Note, together with such other instruments and documents executed in connection with the Loan,
collectively, the “Loan Documents.”
WHEREAS, as a condition precedent to the extension of the financial accommodations provided
under the Loan Documents, the Lender has required each of the Guarantor, Xxxxxx Retail Partners,
LLC, Xxxx Xxxxxxxxxxx and Xxxxxxx Xxxxxxxxxxx to execute a certain Guaranty (the
“Guaranty”) dated on or about the date hereof in favor of the Lender pursuant to which the
Guarantor and the other parties to the Guaranty jointly and severally guarantee the obligations of
the Borrower under the Loan Documents; provided, however, subject to certain events, such
obligation shall be limited to an amount equal to thirty-six and twenty-six one-hundredths of one
percent (36.26%) of (i) the principal balance of the Loan outstanding and payable at maturity or
upon acceleration of the Loan due to an event of default (as defined in the Note), and
(ii) all interest, expenses and other amounts owing by the Borrower under and in connection with
the Loan Documents; and
WHEREAS, the parties hereto desire to formally evidence the joint and several obligation of
each of the Borrower and TNP SRT to reimburse the Guarantor for any payment made by the Guarantor
under the Guaranty and the Borrower desires to compensate the Guarantor for the execution of the
Guaranty and the incurrence by the Guarantor of the liabilities thereunder.
NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, and
for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by the parties, the parties hereto agree as follows:
Section 1. Definitions. The following terms shall have the meanings set forth below
for the purposes of this Agreement:
“Other Taxes” means any stamp or documentary taxes or any other excise or property
taxes, charges or similar levies which arise from any payment made hereunder or from the execution,
delivery or registration of, or otherwise with respect to, this Agreement.
“Taxes” shall mean present or future taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto.
Section 2. Reimbursement/Guaranty Fee.
(a) In the event the Guarantor makes any payment to the Lender pursuant to, or in respect of,
the Guaranty or the Loan Documents, TNP SRT shall, or shall cause Borrower to, within two business
days after the Borrower receives notice from the Guarantor that the Guarantor has made such
payment, reimburse the Guarantor in an amount equal to the amount so paid by the Guarantor under
the Guaranty.
(b) In consideration of, and as a fee for, providing the Guaranty, the Borrower agrees to pay
the Guarantor, on the date hereof, an upfront fee (the “Upfront Fee”) of $25,000. The
Upfront Fee shall be fully-earned and non-refundable, shall be payable in immediately available
funds and shall not be subject to counterclaim or set-off for, or otherwise be affected by, any
claim or dispute relating to any other matter.
(c) In further consideration of, and as an additional fee for, providing the Guaranty, the
Borrower agrees to pay the Guarantor an annual guaranty fee (the “Guaranty Fee”), equal to:
(x) 0.25% multiplied by (y) thirty-six and twenty-six one-hundredths of one percent (36.26%) of the
weighted-average amount of borrowings outstanding under the Loan during each period of twelve
consecutive months beginning on the date hereof, or such shorter period if the Loan is paid in full
prior to the end of such twelve consecutive month period (each, a “Payment Year”). As soon
as the same is available, but no later than 25 days after the end of each Payment Year, the
Borrower shall deliver to the Guarantor a detailed schedule setting forth the dates and amounts of
all borrowings and repayments made by the Borrower under the Loan during such period. The Guaranty
Fee shall be calculated by the Guarantor promptly after receipt of such information. Payment of
the Guaranty Fee shall be made by the Borrower to the Guarantor no later than 30 days after the end
of each Payment Year.
(d) In the event the Borrower or TNP SRT fails to pay any amount hereunder when due, such
amount shall bear interest at a rate per annum equal to the one-month London interbank offered rate
published from time to time by the Wall Street Journal plus 1.50% and such amount, together
with such interest, shall be payable on demand.
(e) The obligation to pay the foregoing amounts shall be (i) absolute and unconditional and
shall not be subject to any offset or counterclaim of any kind whatsoever and (ii) shall be due and
payable notwithstanding (A) any lack of validity or enforceability of the documents and instruments
evidencing the Loan Documents, the Guaranty or any other agreement or instrument relating thereto;
(B) any change, restructuring or termination of the organizational structure or existence of the
Borrower or TNP SRT; (C) any acts of any
governmental or quasi-governmental authority or regulatory body affecting the Borrower or TNP
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SRT,
including, but not limited to, any economic, political, regulatory or other events or any failure
of any governmental or quasi-governmental authority or regulatory body to permit the Borrower or
TNP SRT to comply with the terms of this Agreement; or (D) any other circumstance which might
otherwise constitute a defense available to, or a discharge of, the Borrower or TNP SRT.
(f) (i) All payments by the Borrower and TNP SRT under this Agreement shall be made free and
clear of, and without deduction or withholding for, any and all Taxes.
(ii) In addition, the Borrower and TNP SRT shall pay any Other Taxes due in the present or
future.
(iii) The Borrower and TNP SRT shall jointly and severally indemnify and hold harmless the
Guarantor for the full amount of Taxes or Other Taxes paid by the Guarantor and any liability
(including penalties, interest, additions to tax and expenses) arising therefrom or with respect
thereto, whether or not such Taxes or Other Taxes were correctly or legally asserted. Payment
under this indemnification shall be made within five days from the date the Guarantor makes written
demand therefor.
(iv) If the Borrower or TNP SRT is required by law to deduct or withhold any Taxes or Other
Taxes from or in respect of any sum payable hereunder, then:
(1) the sum payable shall be increased as necessary so that after making all
required deductions or withholdings, the Guarantor receives an amount equal to the
sum it would have received had no such deductions or withholdings been made; and
(2) the Borrower or TNP SRT, as applicable, shall make such deductions or
withholdings and pay the full amount deducted to the relevant taxation or other
authority in accordance with applicable law.
(v) Within 30 days after the date of any payment by the Borrower or TNP SRT of Taxes or Other
Taxes, the Borrower or TNP SRT, as applicable, shall furnish to the Guarantor the original or a
certified copy of a receipt evidencing payment thereof, or other evidence of payment satisfactory
to the Guarantor.
(g) Simultaneously with the delivery by the Borrower to the Lender of its annual and quarterly
financial statements, the Borrower shall deliver a copy of same to the Guarantor. Within thirty
days after receipt by the Borrower of any notices, correspondence or other communications from the
Lender, the Borrower shall provide true and correct copies of such correspondence to the Guarantor.
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Section 3. Representations. The Borrower and TNP SRT jointly and severally represent
to the Guarantor that:
(a) Authorization. Each of the Borrower and TNP SRT has the right and power, and has
taken all necessary action to authorize it to execute, deliver and perform this Agreement in
accordance with its terms. This Agreement has been duly executed and delivered by a duly
authorized officer of the Borrower and TNP SRT, and this Agreement is a legal, valid and binding
obligation of the Borrower and TNP SRT enforceable against each in accordance with its terms,
except as the same may be limited by bankruptcy, insolvency, reorganization, moratorium or other
laws affecting generally the enforcement of creditors’ rights.
(b) Compliance of Documents with Laws, etc. The execution and delivery of this
Agreement and the Loan Documents do not and will not, by the passage of time, the giving of notice
or otherwise: (i) require any governmental approval or violate any applicable law relating to the
Borrower or TNP SRT; or (ii) conflict with, result in a breach of or constitute a default under,
the organizational documents or by-laws of the Borrower or TNP SRT, or any indenture, agreement or
other instrument to which the Borrower or TNP SRT is a party or by which it or any of their
respective properties may be bound.
Section 4. Benefits. This Agreement shall be binding upon, and shall inure to the
benefit of, the parties hereto and their respective successors and assigns (including any
subsequent obligor under the Guaranty). The Guarantor may assign its rights and remedies hereunder
(including the right to receive monies hereunder) to any person or entity without the consent of
the Borrower or TNP SRT; provided, however, that the Guarantor shall promptly notify the Borrower
of any such assignment by the Guarantor of this Agreement. Neither the Borrower nor TNP SRT may
assign or transfer all or any part of this Agreement or its obligations hereunder without the prior
written consent of the Guarantor.
Section 5. Governing Law/Jurisdiction.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF DELAWARE.
(b) THE BORROWER AND TNP SRT EACH HEREBY SUBMIT TO THE NONEXCLUSIVE JURISDICTION AND VENUE OF
THE FEDERAL DISTRICT COURT OF THE DISTRICT OF DELAWARE OR ANY STATE COURT LOCATED DELAWARE IN
CONNECTION WITH ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT. TO THE
EXTENT THAT EITHER THE BORROWER OR TNP SRT HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY (SOVEREIGN OR
OTHERWISE) FROM JURISDICTION OF ANY COURT OR FROM LEGAL PROCESS (WHETHER THROUGH SERVICE OF NOTICE,
ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION, EXECUTION OR OTHERWISE) WITH RESPECT
TO ITSELF OR ITS PROPERTY, IT HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS HEREUNDER.
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(c) EACH OF THE BORROWER, TNP SRT AND THE GUARANTOR WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.
Section 6. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and shall be binding upon all
parties, their successors and assigns.
Section 7. Notices. Notices to the Borrower and TNP SRT shall be delivered to the
address of the Borrower and TNP SRT, as applicable, set forth below the signature line therefor via
fax, hand delivery or overnight courier. All such notices shall be effective: (i) if faxed, upon
transmittal thereof (and a fax confirmation answer-back shall be deemed conclusive evidence of such
delivery), (ii) if hand delivered, when so delivered and (iii) if via courier, upon receipt by the
Guarantor of confirmation of delivery from the courier.
[Signatures on Next Page]
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IN WITNESS WHEREOF, the parties hereto have caused this Reimbursement and Fee Agreement to be
executed by their duly authorized officers as of the date first above written.
| TNP SRT XXXXXX MARKETPLACE, LLC | ||||||
| By: | /s/ Xxxxx Xxxxxxxxx
|
|||||
| Name: Xxxxx Xxxxxxxxx | ||||||
| Title: Chief Financial Officer | ||||||
| Address for Notices: | ||||||
| Xxxxxx Retail Partners, LLC | ||||||
| 0000 Xxxx Xxxxxx, Xxxxx 000 | ||||||
| Xxxxxx, Xxxxxxxxxx 00000 | ||||||
| (Tel): (000) 000-0000 | ||||||
| (Fax): (000) 000-0000 | ||||||
| TNP STRATEGIC RETAIL TRUST INC. | ||||||
| By: | /s/ Xxxxx Xxxxxxxxx
|
|||||
| Name: Xxxxx Xxxxxxxxx | ||||||
| Title: Chief Financial Officer and Secretary | ||||||
| Address for Notices: | ||||||
| TNP Strategic Retail Trust, Inc. | ||||||
| 0000 Xxxx Xxxxxx, Xxxxx 000 | ||||||
| Xxxxxx, Xxxxxxxxxx 00000 | ||||||
| (Tel): (000) 000-0000 | ||||||
| (Fax): (000) 000-0000 | ||||||
| XXXXXXX X. XXXXXXXX | ||||||
| /s/ Xxxxxxx X. Xxxxxxxx | ||||||
| Address for Notices: | ||||||
| 0000 Xxxx Xxxxxx, Xxxxx 000 | ||||||
| Xxxxxx, Xxxxxxxxxx 00000 | ||||||
| (Tel): (000) 000-0000 | ||||||
| (Fax): (000) 000-0000 | ||||||
