EXHIBIT 10.39
INDEMNITY AGREEMENT
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This Indemnity Agreement (this "Indemnity Agreement") is entered into
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as of January __, 1997 , by ▇▇▇▇▇▇ REALTY CORP. ("Indemnitor") in favor of
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▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK (together with its successors and
assigns, the "Lender"), with reference to the following facts:
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A. [BORROWER], a _______ limited partnership (the "Borrower") is the
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owner of the thirteen (13) parcels of land (collectively, the "Land") as more
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particularly described in Exhibit A-1 through Exhibit A-13 and the
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improvements located thereon (collectively, the "Property"); and
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B. Indemnitor is the owner of an approximately _ % beneficial
interest in Borrower.
C. Lender has loaned or will loan to Borrower the sum of $84,000,000
(the "Loan"), payment of which is evidenced by a certain mortgage note of even
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date herewith, from Borrower to Lender (the "Note"), which Note is secured by an
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Indenture of Mortgage, Deed of Trust, Security Agreement, Financing Statement,
Fixture Filing and Assignment of Leases and Rents, of even date herewith (said
Indenture of Mortgage, Deed of Trust, Deed to Secure Debt, Security Agreement,
Financing Statement, Fixture Filing and Assignment of Leases and Rents, whether
one or more, and together with all amendments, modifications, consolidations,
increases, supplements and spreaders thereof being herein collectively called
the "Mortgage") encumbering the Property (the Mortgage, the Note, and any other
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documents or instruments evidencing or securing the Loan, as amended or modified
from time to time, being herein sometimes called the "Loan Documents").
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D. As a condition to making the Loan, Lender requires Indemnitor to
indemnify Lender for and hold Lender harmless from (i) any Environmental Claim,
any Requirements of Environmental Law, or the violation of any Environmental
Approval (as these terms are defined in Section 1 below) attributable to
Hazardous Substance (as defined in Section 1 below) and related to the Property
and (ii) certain recourse obligations of Borrower under the Mortgage. Lender
would not make the Loan without this Indemnity Agreement and Indemnitor
acknowledges and understands that this Indemnity Agreement is a material
inducement for Lender's agreement to make the Loan.
NOW, THEREFORE, Indemnitor agrees as follows:
1. Definitions. For purposes of this Indemnity Agreement, the
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following terms shall have the following meanings:
(a) "Environmental Approval" means any permit, license, approval,
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ruling, variance, exemption or other authorization required under
applicable Environmental Laws.
(b) "Environmental Claim" shall have the meaning set forth in the
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Mortgage.
(c) "Environmental Laws" shall have the meaning set forth in the
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Mortgage.
(d) "Hazardous Substance" shall have the meaning set forth in the
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Mortgage.
(e) "Indemnitee" or "Indemnitees" means (individually and
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collectively), Lender, any purchaser or assignee of all or any part of the
Note, including, without limitation, the respective affiliates, officers,
directors, shareholders, and employees of any of the foregoing and their
respective successors and assigns. Notwithstanding the foregoing,
"Indemnitee(s)" does not include any person or entity (other than Lender,
any purchaser or assignee of all or any part of the Note, including,
without limitation, any affiliate of Lender or such purchaser or assignee)
who purchases or acquires all or any part of the Property (i) by any
foreclosure under the Mortgage, whether judicial or non-judicial, or
pursuant to the exercise of any power of sale thereunder, or by deed-in-
lieu of foreclosure or (ii) from Lender or any purchaser or assignee of all
or any part of the Note, including, without limitation, any affiliate of
Lender or such purchaser or assignee.
(f) "Requirements" shall have the meaning set forth in the Mortgage.
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(g) Terms not otherwise defined in this Indemnity Agreement shall
have the meanings ascribed to them in the Mortgage.
2. Indemnification. (a) Indemnitor shall protect, defend,
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indemnify, and hold harmless Indemnitees from and against all liabilities,
losses, costs, damages, expenses or claims, including, but not limited to,
remedial, removal, response, abatement, cleanup, legal, investigative,
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and monitoring costs and other related costs, expenses, losses, damages
(excluding any and all consequential damages, including, without limitation,
diminution in value), penalties, fines, liabilities, obligations, defenses,
judgments, suits, proceedings, and disbursements (including, without limitation,
reasonable attorneys' and experts' fees and disbursements) of any kind or of any
nature whatsoever (collectively "Costs and Liabilities"), which may at any time
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be imposed upon Indemnitee or incurred by any Indemnitee and which arise
(directly or indirectly): (i) from Requirements of Environmental Laws applicable
to the Property, or any portion thereof; (ii) with respect to Environmental
Claims related to the Property; (iii) from the failure or alleged failure of
Borrower, or the Indemnitor or any tenant or any other party directly or
indirectly connected with the Property, to obtain, maintain, or comply with any
Environmental Approval; and/or (iv) otherwise from the presence (occurring or
commencing prior to Lender's acquisition of the Property, or any portion
thereof), release, alleged presence, or alleged release of Hazardous Substance
in violation of Requirements of Environmental Laws on or under the Property, or
the soil, groundwater or soil vapor on or under the Property, or the migration,
spreading, alleged migration, or alleged spreading of Hazardous Substance from
the Property in violation of Requirements of Environmental Laws, whether or not
known to Indemnitor, whether foreseeable or unforeseeable, regardless of the
source of such presence or release or, except as expressly provided in Section
2(c) hereof, regardless of when such release or presence occurred. Each
Indemnitee shall give prompt written notice to Lender of any matter for which
such Indemnitee shall seek indemnification hereunder, and Lender shall, after
receiving actual knowledge of any matter for which Indemnitees may seek
indemnification hereunder, give prompt written notice thereof to Indemnitor
(although the failure of Lender and/or any Indemnitee to provide such notice
shall have no effect whatsoever on the obligations of the Indemnitor hereunder
unless such failure adversely affects Indemnitor's obligations under this
Agreement).
(b) In the event that any investigation, site monitoring,
containment, cleanup, removal, restoration or other remedial work of any kind or
nature (the "Remedial Work") is required to be performed or undertaken by
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Borrower or Indemnitor pursuant to any applicable local, state or federal law or
regulation, any judicial order, or by any governmental entity because of, or in
connection with, the current or future presence (occurring or commencing prior
to Lender's acquisition of the Property, or any portion thereof), alleged
presence, release or alleged release of a Hazardous Substance in or into the
air, soil, groundwater, surface water or soil vapor at, on, about, under or
within
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the Property (or any portion thereof), Indemnitor shall within thirty (30) days
after written demand for performance thereof by Indemnitees (or such shorter
period of time as may be required under any applicable law, regulation, order or
agreement), (a) commence to perform, or cause to be commenced, and thereafter
diligently prosecuted to completion, all such Remedial Work or (b) contest by
proper proceedings or procedures the requirement to perform the Remedial Work;
provided, that such contest shall be prosecuted diligently and in good faith and
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such contest shall not expose any Indemnitee to any civil or criminal penalty or
liability. Upon demand of Lender or any other Indemnitee, Indemnitor shall
furnish Indemnitees a surety bond or other adequate security reasonably
satisfactory to Indemnitees sufficient both to indemnify Indemnitees against
liability and hold the Property free from adverse effect in the event the
contest is not successful. All Remedial Work shall be performed by one or more
contractors, approved in advance in writing by Lender (which approval shall not
be unreasonably withheld or delayed), and under the supervision of a consulting
engineer approved in advance in writing by Lender (which approval shall not be
unreasonably withheld or delayed). All costs and expenses of such Remedial Work
shall be paid by Indemnitor including, without limitation, the charges of such
contractor(s) and/or the consulting engineer, and the reasonable attorneys' fees
and costs incurred by Indemnitees in connection with the monitoring or review of
such contractors and consulting engineer. In the event Indemnitor shall fail to
commence, or cause to be commenced, such Remedial Work within such thirty (30)
day (or such shorter) period, or shall fail thereafter to prosecute such
Remedial Work to completion in a diligent manner after ten (10) days' written
notice to Indemnitor (or such shorter period as may be appropriate in the case
of emergency), Indemnitees may, but shall not be required to, cause such
Remedial Work to be performed and all reasonable costs and expenses thereof, or
incurred in connection therewith, shall become an Environmental Claim hereunder.
(c) Anything to the contrary set forth in this Indemnity Agreement,
in the Mortgage, or elsewhere notwithstanding, Indemnitor shall not be liable
under this Indemnity Agreement to the extent of that portion of any Costs and
Liabilities which Indemnitor establishes is attributable to the gross negligence
or willful misconduct of any Indemnitee (or its agents or employees) not
affiliated with Indemnitor at the Property which causes (i) the introduction or
initial release of a Hazardous Substance at the Property, or (ii) material
aggravation of a then existing Hazardous Substance condition or occurrence at
the Property. In addition, if Lender or any affiliate(s) thereof or any other
person or entity acquires ownership of
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the Property through a foreclosure, or the exercise of a power of sale under the
Mortgage or deed-in-lieu of foreclosure, Indemnitor shall not be liable
hereunder for that portion of any Costs and Liabilities which Indemnitor
establishes is attributable to (y) the introduction or initial release of a
Hazardous Substance at the Property by any party, other than Borrower, any other
Indemnitor or an affiliate of Indemnitor, at any time after Lender, such
affiliate(s) or such other person or entity has acquired title to the Property
or (z) material aggravation of a then existing Hazardous Substance condition or
occurrence at the Property by any party, other than Borrower, Indemnitor or an
affiliate of Indemnitor, at any time after Lender, such affiliate(s) or such
other person or entity has acquired title to the Property.
Notwithstanding the foregoing, the liability of Indemnitor hereunder
shall otherwise remain in full force and effect after Lender, such affiliate(s)
or such other person so acquires title to the Property, including without
limitation with respect to any Hazardous Substance which is discovered at the
Property after the date Lender, such affiliate(s) or such other person acquires
title but which was actually introduced to the Property prior to the date of
such acquisition, and with respect to any continuing migration or release of any
Hazardous Substance introduced at the Property prior to the date that Lender,
such affiliate(s) or such other person acquires title.
(d) Indemnitor shall protect, defend, and hold harmless Indemnitees
from and against, and indemnify Indemnitees for, all liabilities, losses, costs,
damages, expenses or claims, including, but not limited to, related costs,
expenses, losses, damages (excluding any and all consequential damages),
penalties, fines, liabilities, obligations, defenses, judgments, suits,
proceedings, and disbursements (including, without limitation, reasonable
attorneys' fees and disbursements) of any kind or of any nature whatsoever,
which may at any time be imposed upon Indemnitee or incurred by any Indemnitee
and which arise (directly or indirectly) in connection with any of the
obligations of Borrower which are specified in clauses (i) through (x) of
Section 33 of the Mortgage as exceptions to the limitations on Borrower's
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liability for its obligations under the Loan.
(e) This Indemnity Agreement is solely intended to protect Lender
from the matters set forth in the preceding paragraphs 2(a), 2(b) and 2(d) and
is not intended to secure payment of the Note or amounts due to Lender under the
Mortgage. This Indemnity Agreement is not intended to be, nor shall it be,
secured by the Mortgage or any of the
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other Loan Documents. The obligations of Indemnitor under this Indemnity
Agreement shall be as set forth herein notwithstanding any similar provisions in
the Mortgage.
(f) Nothing contained in this Indemnity Agreement shall prevent or in
any way diminish or interfere with any rights and remedies, including without
limitation, the right to contribution, which Lender may have against Borrower
pursuant to the terms of the Mortgage Indemnitor or any other party (or which
Indemnitor or Borrower may have against Lender or any other party) under the
Federal Comprehensive Environmental Response, Compensation and Liability Act of
1980 (codified at Title 42 U.S.C. (S)(S) 9601 et seq.), as it may be amended
from time to time, or any other applicable Federal or state laws.
3. Notice of Actions. (a) Indemnitor shall give immediate written
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notice to Lender of each of the following (provided that Indemnitor has
knowledge thereof): (i) any proceeding, written (or material non-written)
inquiry, notice, or other communication by or from any governmental authority,
including, without limitation, the Environmental Protection Agency and state and
local equivalents, regarding the presence or existence of any Hazardous
Substance on, under, or about the Property or any migration thereof from or to
the Property or any actual or alleged violation of the Requirements of
Environmental Laws; (ii) all Environmental Claims and any other written claims
made or threatened against Borrower or Indemnitor or the Property relating to
any loss or injury resulting from or pertaining to any Hazardous Substance or
any alleged breach or violation of any Requirements of Environmental Laws; (iii)
Borrower's or Indemnitor's discovery of any occurrence or condition on any real
property adjoining or in the vicinity of the Property that could reasonably
cause the Property or any part thereof to be subject to any material
restrictions on ownership, occupancy, transferability, or use, or subject the
owner or any person having any interest in the Property to any material
liability, penalty, or disability under any Requirement of Environmental Laws;
and (iv) Borrower's or Indemnitor's receipt of any written notice or discovery
of any information regarding any actual or alleged use, manufacture, production,
storage, spillage, seepage, release, discharge, disposal or any other presence
or existence of any Hazardous Substance on, under, or about the Property, in
violation of any Requirements of Environmental Laws pertaining to Indemnitor or
the Property.
(b) Immediately upon Borrower's or Indemnitor's receipt of the same,
Indemnitor shall deliver to Lender copies of any and all Environmental Claims,
and any and all orders, notices, permits, applications, reports, and other
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communications, documents, and instruments pertaining to the actual or alleged
presence or existence of any Hazardous Substance on, under, or about the
Property in violation of any Requirements of Environmental Laws.
4. Procedures Relating to Indemnification. (a) Indemnitor shall at
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its own cost, expense, and risk: (i) defend all suits, actions, or other legal
or administrative proceedings that may be brought or instituted against an
Indemnitee or Indemnitees, as the case may be, on account of any matter or
matters arising under or within Section 2 above; (ii) pay or satisfy any
judgment or decree that may be recorded against an Indemnitee or Indemnitees, as
the case may be, in any such suit, action, or other legal or administrative
proceedings; and (iii) reimburse Indemnitee or Indemnitees, as the case may be,
for the cost of, or for any payment made by any of them, with respect to any
reasonable expenses incurred in connection with the matters arising under or
within Section 2 above, undertaken as a result of any demands, causes of
actions, lawsuits, proceedings, or any other claims threatened, made, or brought
against any Indemnitee or Indemnitees, as the case may be, arising out of the
obligations of Indemnitor under this Indemnity Agreement or Borrower under the
Mortgage. Indemnitor shall have no liability under this paragraph (a) unless
Lender shall, after receiving actual knowledge of any suit, action or proceeding
for which Indemnitees may seek indemnification under this paragraph (a), have
given reasonable written notice thereof to Indemnitor.
(b) Counsel selected by Indemnitor pursuant to Section 4(a) above
shall be subject to the reasonable approval of the Indemnitee or Indemnitees, as
the case may be, asserting a claim hereunder; provided, however, that Indemnitee
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or Indemnitees, as the case may be, may elect to defend any such claim, lawsuit,
action, legal, or administrative proceeding at the cost and expense of
Indemnitor, if, in the reasonable judgment of the Indemnitee or Indemnitees, as
the case may be, (i) the defense is not proceeding or being conducted in a
satisfactory manner, or (ii) there is a conflict of interest between any of the
parties to such lawsuit, action, legal, or administrative proceeding, and in
either case Indemnitor have not provided substitute counsel reasonably
satisfactory to Indemnitees promptly after written request therefor by
Indemnitees.
(c) Notwithstanding anything in this Indemnity Agreement to the
contrary, Indemnitor shall not, nor shall Indemnitor allow Borrower without the
prior written consent of Lender (which consent shall not be unreasonably
withheld or delayed) to (i) settle or compromise any action, suit, proceeding,
or claim relating, directly or indirectly, to
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any Hazardous Substance, any Environmental Claim or any matter addressed in
Section 2(d) above, or consent to the entry of any judgment therein for which
Lender might be wholly or partially liable that does not include as an
unconditional term thereof the delivery by the claimant or plaintiff to Lender
of a written release of Lender (in form, scope and substance satisfactory to
Lender in its reasonable judgment) from all liability in respect of such action,
suit, or proceeding; or (ii) settle or compromise any action, suit, proceeding,
or claim relating, directly or indirectly, to any Hazardous Substance, any
Environmental Claim or any matter addressed in Section 2(d) above in any manner
that may materially and adversely affect Lender as determined by Lender in its
reasonable judgment.
(d) Without limiting the rights of Indemnitor pursuant to Section
4(b) above, Lender shall have the right (upon written notice to Indemnitor) to
join and participate in, as a party if they so elect, any legal proceedings or
actions in connection with the Property involving any Environmental Claim, any
Hazardous Substance, any Requirements of Environmental Laws or any matter
addressed in Section 2(d) above. In any circumstance in which this indemnity
applies, Lender may employ its own legal counsel and consultants to prosecute or
defend any claim, action, or cause of action. Indemnitor shall have the right
to compromise or settle the same in good faith without the necessity of showing
actual liability therefor, with the consent of Indemnitees (which consent shall
not be unreasonably withheld or delayed). Indemnitor shall reimburse Lender
upon demand for all reasonable costs and expenses incurred by Lender, including
the amount of all costs of settlements entered into in accordance with the
preceding sentence, and the fees and other costs and expenses of its attorneys
and consultants including without limitation those incurred in connection with
monitoring and participating in any action or proceeding, including costs
incurred pursuant to Section 4(b) above.
5. Binding Effect. This Indemnity Agreement shall be binding upon
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and inure to the benefit of Indemnitor and Indemnitees and their respective
successors and assigns.
6. Limitation of Liability of Indemnitees. Notwithstanding any
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ownership by any Indemnitee at any time of all or any portion of the Property,
in no event shall any Indemnitee (including any successor or assign as holder of
the Note) be bound by any obligations or liabilities of any of the Indemnitor
under this Indemnity Agreement.
7. Liability of Indemnitor. The liability of Indemnitor under this
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Indemnity Agreement shall in no way be
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limited or impaired by any amendment or modification of the provisions of the
Loan Documents to or with Lender by Indemnitor or any person who succeeds
Borrower as owner of the Property. In addition, the liability of Indemnitor
under this Indemnity Agreement shall in no way be limited or impaired by (but
subject in all events to the terms set forth in Section 16 hereof) (i) any
extensions of time for performance required by any of the Loan Documents; (ii)
any sale, assignment, or foreclosure of the Note or Mortgage or any sale or
transfer of all or part of the Property or any interest(s) therein; (iii) any
exculpatory provision in any of the Loan Documents limiting Lender's recourse to
property encumbered by the Mortgage or to any other security, or limiting
Lender's rights to a deficiency or other judgment against Indemnitor or any
other obligor or guarantor thereunder; (iv) the accuracy or inaccuracy of the
representations and warranties made by Borrower under any of the Loan Documents;
(v) the release of Borrower or any other person or entity from performance or
observance of any of the agreements, covenants, terms, or conditions contained
in any of the Loan Documents by operation of law, Lender's voluntary act, or
otherwise; (vi) the release or sub stitution in whole or in part of any security
for the Note; or (vii) Lender's failure to record any Mortgage or file any UCC
financing statements (or Lender's improper recording or filing of any thereof)
or otherwise to perfect, protect, secure, or insure any security interest or
lien given as security for the Note; and, in any such case, whether with or
without notice to Indemnitor and with or without consideration.
8. Waiver. Indemnitor waives any right or claim of right to cause a
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marshaling of the assets of Indemnitor or to cause Lender to proceed against any
of the security for the Loan before proceeding under this Indemnity Agreement
against Indemnitor or to proceed against Indemnitor in any particular order;
Indemnitor agrees that any payments required to be made hereunder shall become
due on demand; Indemnitor expressly waives and relinquishes all rights and
remedies accorded by applicable law to indemnitors or guarantors, except any
rights of subrogation that Indemnitor may have; provided, that the indemnity
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provided for hereunder shall neither be contingent upon the existence of any
such rights of subrogation nor subject to any claims or defenses whatsoever that
may be asserted in connection with the enforcement or attempted enforcement of
such subrogation rights, including, without limitation, any claim that such
subrogation rights were abrogated by any acts of Lender. Indemnitor hereby
agrees to postpone the exercise of any and all rights of subrogation to the
rights of Lender against Borrower hereunder and any rights of
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subrogation to any collateral securing the Loan until the Loan shall have been
paid in full.
9. Delay. No delay on the Lender's part in exercising any right,
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power, or privilege under any of the Loan Documents shall operate as a waiver of
any such privilege, power, or right.
10. Notices. (a) All notices, consents, approvals, elections and
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other communications (collectively "Notices") hereunder shall be in writing
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(whether or not the other provisions of this Indemnity Agreement expressly so
provide) and shall be deemed to have been duly given if delivered by nationally
recognized overnight courier service or certified mail, with return receipt
requested, postage prepaid, to such parties at the address set forth below (or
at such other addresses as shall be given in writing by any party to the others
pursuant to this Section) and shall be deemed received by the party to whom it
is addressed on the first Domestic Business Day after delivery by the sender to
a nationally recognized overnight courier service or on the third Domestic
Business Day after mailing if sent by certified mail:
To Indemnitor:
▇▇▇▇▇▇ Realty Corporation
Attention:
with a copy to:
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
To Lender:
▇▇▇▇▇▇ Guaranty Trust Company
of New York
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
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with a copy to:
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, Esq.
(b) In the event of any strike or occurrence of another similar event
which interrupts mail service, notices may be served personally upon an
individual, trustee, partner, or an officer or director of a corporation which
is or is part of the party being served hereunder (all at the address set forth
in this Section).
11. Attorneys' Fees. In the event that Indemnitor or any Indemnitee
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brings any suit or other proceeding with respect to the subject matter or
enforcement of this Indemnity Agreement, the prevailing party (as determined by
the court, agency or other authority before which such suit or proceeding is
commenced) shall, in addition to such other relief as may be awarded, be
entitled to recover attorneys' fees, expenses and costs of investigation as
actually incurred (including, without limitation, attorneys' fees, expenses and
costs of investigation incurred in appellate proceedings, costs incurred in
establishing the right to indemnification, or in any action or participation in,
or in connection with, any case or proceeding under Chapters 7, 11 or 13 of the
Bankruptcy ▇▇▇▇, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code Sections 101 et seq., or any successor
-- ---
statutes).
12. Successive Actions. A separate right of action hereunder shall
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arise each time Lender acquires knowledge of any matter described in Sections 2
or 3 hereof. Separate and successive actions may be brought hereunder to
enforce any of the provisions hereof at any time and from time to time. No
action hereunder shall preclude any subsequent action, and Indemnitor hereby
waives and covenants not to assert any defense in the nature of splitting of
causes of action or merger of judgments.
13. Partial Invalidity. If any provision of this Indemnity Agreement
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shall be determined to be unenforceable in any circumstances by a court of
competent jurisdiction, then the balance of this Indemnity Agreement
nevertheless shall be enforceable, and the subject provision shall be
enforceable in all other circumstances.
14. Interest on Unpaid Amounts. All amounts required to be paid or
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reimbursed to any Indemnitee hereunder shall bear interest from the date of
expenditure by such Indemnitee or the date of written demand to any
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Indemnitor hereunder, whichever is earlier, until paid to Indemnitee(s). The
annual interest rate shall be the lesser of (a) a rate equal to the Default Rate
(as defined in the Mortgage) or (b) the maximum rate then permitted for the
parties to contract for under applicable law.
15. Governing Law. This Indemnity Agreement and the rights and
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obligations of the parties hereunder shall in all respects be governed by, and
construed and enforced in accordance with, the laws of the State of New York
(without giving effect to New York's principles of conflicts of law).
Indemnitor hereby irrevocably submits to the non-exclusive jurisdiction of any
New York state or federal court sitting in the City of New York over any suit,
action or proceeding arising out of or relating to this Indemnity Agreement, and
Indemnitor hereby agrees and consents that, in addition to any other methods of
service of process in any such suit, action or proceeding in any New York state
or federal court sitting in the City of New York, service of process may be made
by certified or registered mail, return receipt requested, directed to
Indemnitor at its address indicated in Section 10 hereof, and service so made
shall be complete five (5) days after the same shall have been so mailed.
16. Termination of Indemnity. Notwithstanding anything to the
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contrary contained elsewhere in this Indemnity Agreement, subject to the
following sentence, the indemnity provided for herein and this Indemnity
Agreement shall terminate and be of no further force and effect upon the earlier
to occur of (a) repayment in full of all principal, interest and any other sums
due under, or evidenced by, the Mortgage and the other Loan Documents and (b)
with respect to the indemnities set forth in Sections 2(a) and (b) only, two (2)
years after the date on which Lender or any affiliate thereof (or any other
Person (other than the Borrower) acting through or on behalf of the Lender, its
successors and assigns and any affiliate thereof) acquires possession of, or
title to, the Property. Notwithstanding the foregoing, any claim hereunder may
be made at any time before the date described in the preceding sentence, and
once such claim has been made prior to such date, the obligations of Indemnitor
under this Indemnity Agreement shall continue to apply to such claim, to the
extent permitted by applicable law.
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IN WITNESS WHEREOF, Indemnitor has executed this Indemnity Agreement
as of the date first set forth above.
▇▇▇▇▇▇ REALTY CORP.
By: ___________________________
Name:
Title:
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ACKNOWLEDGMENT FOR INDEMNITOR
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STATE OF )
) ss.:
COUNTY OF )
On January __, 1997 , before me personally came ______________, to me
known to be the person who executed the foregoing instrument.
[Seal]
________________________________
Notary Public
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