PARTNER NAME] c/o [NAME] [ADDRESS LINE 1] [ADDRESS LINE 2] [CITY], [STATE] [ZIP] Attention: [CONTACT NAME] RE:AREIT Operating Partnership LP Profit Interest Letter Agreement Dear [CONTACT NAME]:
Exhibit 10.23
[_____] [__], 2024
[PARTNER NAME]
c/o [NAME]
[ADDRESS LINE 1]
[ADDRESS LINE 2]
[CITY], [STATE] [ZIP]
Attention: [CONTACT NAME]
RE:AREIT Operating Partnership LP Profit Interest Letter Agreement
Dear [CONTACT NAME]:
AREIT Operating Partnership LP (“AREIT OP”) is pleased to provide [PARTNER NAME] (the “JV Profit Interest Partner”), with this letter agreement (the “Letter Agreement”) to admit the JV Profit Interest Partner as a limited partner in AREIT OP and grant a performance participation interest more particularly described on Exhibit A (the “[SHORTNAME] Profit Interest”) to JV Profit Interest Partner, under the terms set forth in Exhibit A, in consideration of services rendered and to be rendered by the JV Profit Interest Partner.
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IN WITNESS WHEREOF, the undersigned have executed this Letter Agreement as of the date first above written.
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Sponsor Guarantor (as defined in Exhibit A) hereby joins in this Letter Agreement solely for the purpose of agreeing to pay and perform (on a direct and joint and several basis with all other obligors) the obligations of Sponsor (as defined in Exhibit A) expressly set forth in Section 4(b)(vii)(A) of Exhibit A attached to this Letter Agreement (the “Guaranteed Obligations”). Sponsor Guarantor represents that it is an Affiliate of Sponsor and has received, or will receive, direct or indirect benefit from the [SHORTNAME] Profit Interest and the making of the Guaranteed Obligations and that it has entered into this Letter Agreement and made the Guaranteed Obligations for a reasonably equivalent value. Sponsor
Guarantor hereby waives any right it may have to, and covenants and agrees that it will not (and it will not, directly or indirectly, cause any person or entity to), directly or indirectly contest, bring any cause of action or claim, or otherwise challenge the validity or enforceability of the Guaranteed Obligations (including, without limitation, on the basis that it received insufficient consideration or reasonably equivalent value for the making of the Guaranteed Obligations).
To the fullest extent permitted by law: (a) Sponsor Guarantor waives: (i) diligence, protest, notice of protest, presentment, demand of payment, notice of dishonor and all other suretyship defenses; (ii) the right to require AREIT OP or any Other Partner to proceed against any collateral or other security now or hereafter held by AREIT OP or such Other Partner or to pursue any other remedy available to them; (iii) the benefit of or right to assert any statute of limitations affecting liability hereunder or the enforcement thereof; (iv) any defense which may arise by reason of (A) the incapacity, lack of authority, death or disability of, or revocation hereof by, any person or persons, entity or entities, (B) the failure of AREIT OP or any Other Partner to file or enforce any claim against the estate (in probate, bankruptcy or any other proceedings) of Sponsor or Sponsor Guarantor or any other person or person, or (C) the absence, impairment or loss of any right of reimbursement or subrogation or other right or remedy that Sponsor or Sponsor Guarantor may have against any other person, or against any security resulting from the exercise or election of any remedy or remedies; (b) the liability of Sponsor Guarantor with respect to the Guaranteed Obligations shall not be impaired, abated, deferred, diminished, modified, released, terminated or discharged, in whole or in part, or otherwise affected, by any event, condition, occurrence, circumstance, proceeding, action or failure to act, with or without notice to, or the knowledge or consent of Sponsor Guarantor, in each case which is taken or omitted to be taken with respect to this Letter Agreement or the Guaranteed Obligations; and (c) neither the obligations of Sponsor Guarantor to make payment with respect to the Guaranteed Obligations nor any remedy for the enforcement thereof shall be impaired, modified, changed, stayed, released or limited in any manner by any impairment, modification, change, release, limitation or stay of the liability of Sponsor, Sponsor Guarantor or their respective estate in bankruptcy or any remedy for the enforcement thereof, resulting from the operation of any present or future provision of the U.S. Bankruptcy Code or any bankruptcy, insolvency or similar laws of any foreign jurisdiction or state, or other statute or from the decision of any court interpreting any of the same, and Sponsor Guarantor shall be and remain obligated with respect to the Guaranteed Obligations as if no such impairment, stay, modification, change, release or limitation had occurred.
If AREIT OP or any Other Partner shall be obligated by reason of any bankruptcy, insolvency or other legal proceeding to pay or repay to Sponsor Guarantor, or to any trustee, receiver or other representative, any amounts previously paid by Sponsor Guarantor to any of them with respect to the Guaranteed Obligations, then the Guaranteed Obligations shall be continued or reinstated to take into account the amount of such payment or repayment.
SPONSOR GUARANTOR:
[SPONSOR GUARANTOR NAME],
a [JURISDICTION] [ENTITY TYPE]
By:
Name:[NAME]
Title:[TITLE]
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[INDIVIDUAL NAME] (“[NAME]”) hereby joins in this Letter Agreement solely for the purpose of agreeing to pay and perform (on a direct and joint and several basis with all other obligors) the Guaranteed Obligations solely to the extent that the Guaranteed Obligations are not enforceable against Sponsor Guarantor and/or AREIT OP is required to forfeit or return any amounts paid to it by Sponsor Guarantor with respect to the Guaranteed Obligations as a result of one or more claims (including, without limitation, any fraudulent transfer, conveyance or similar claim) made by Sponsor Guarantor or any other person or entity (including any creditor of Sponsor Guarantor) that Sponsor Guarantor has received insufficient consideration or reasonably equivalent value for the making of the Guaranteed Obligations (the “Limited Guaranteed Obligations”). [NAME] represents that it is an Affiliate of, and owns all or a majority of direct or indirect ownership interests in, Sponsor and Sponsor Guarantor and has received, or will receive, direct or indirect benefit from the [SHORTNAME] Profit Interest and the making of the Limited Guaranteed Obligations and that it has entered into this Letter Agreement and made the Limited Guaranteed Obligations for a reasonably equivalent value. [NAME] hereby waives any right it may have to, and covenants and agrees that it will not (and it will not, directly or indirectly, cause any person or entity to), directly or indirectly contest, bring any cause of action or claim, or otherwise challenge the validity or enforceability of the Guaranteed Obligations or the Limited Guaranteed Obligations (including, without limitation, on the basis that it (or Sponsor Guarantor) received insufficient consideration or reasonably equivalent value for the making of the Guaranteed Obligations or the Limited Guaranteed Obligations, as applicable).
To the fullest extent permitted by law: (a) [NAME] waives: (i) diligence, protest, notice of protest, presentment, demand of payment, notice of dishonor and all other suretyship defenses; (ii) the right to require AREIT OP or any Other Partner to proceed against any collateral or other security now or hereafter held by AREIT OP or such Other Partner or to pursue any other remedy available to them; (iii) the benefit of or right to assert any statute of limitations affecting liability hereunder or the enforcement thereof; (iv) any defense which may arise by reason of (A) the incapacity, lack of authority, death or disability of, or revocation hereof by, any person or persons, entity or entities, (B) the failure of AREIT OP or any Other Partner to file or enforce any claim against the estate (in probate, bankruptcy or any other proceedings) of [NAME], Sponsor or Sponsor Guarantor or any other person or person, or (C) the absence, impairment or loss of any right of reimbursement or subrogation or other right or remedy that [NAME], Sponsor or Sponsor Guarantor may have against any other person, or against any security resulting from the exercise or election of any remedy or remedies; (b) the liability of [NAME] with respect to the Limited Guaranteed Obligations shall not be impaired, abated, deferred, diminished, modified, released, terminated or discharged, in whole or in part, or otherwise affected, by any event, condition, occurrence, circumstance, proceeding, action or failure to act, with or without notice to, or the knowledge or consent of [NAME], in each case which is taken or omitted to be taken with respect to this Letter Agreement or the Limited Guaranteed Obligations; and (c) neither the obligations of [NAME] to make payment with respect to the Limited Guaranteed Obligations nor any remedy for the enforcement thereof shall be impaired, modified, changed, stayed, released or limited in any manner by any impairment, modification, change, release, limitation or stay of the liability of [NAME], Sponsor, Sponsor Guarantor or their respective estate in bankruptcy or any remedy for the enforcement thereof, resulting from the operation of any present or future provision of the U.S. Bankruptcy Code or any bankruptcy, insolvency or similar laws of any foreign
jurisdiction or state, or other statute or from the decision of any court interpreting any of the same, and [NAME] shall be and remain obligated with respect to the Limited Guaranteed Obligations as if no such impairment, stay, modification, change, release or limitation had occurred. If AREIT OP or any Other Partner shall be obligated by reason of any bankruptcy, insolvency or other legal proceeding to pay or repay to [NAME], or to any trustee, receiver or other representative, any amounts previously paid by [NAME] to any of them with respect to the Limited Guaranteed Obligations, then the Limited Guaranteed Obligations shall be continued or reinstated to take into account the amount of such payment or repayment.
________________________________
[NAME], an individual
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Exhibit A
Exhibit B
