EXHIBIT 10.27
ENVIRONMENTAL INDEMNITY AGREEMENT
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This Environmental Indemnity Agreement (this "Indemnity Agreement") is
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entered into as of ________ __, 199_, by [INDEMNITOR] ("Indemnitor") in favor of
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each Bank (as defined in the Credit Agreement (as hereinafter defined)) (each, a
"Lender" and collectively, the "Lenders") and ▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF
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NEW YORK, as lead agent (together with its successors in such capacity, the
"Agent") for Lenders pursuant to that certain Revolving Credit Agreement (the
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"Credit Agreement"), dated as of even date herewith, among the Borrower (as
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hereinafter defined), Lenders and the Agent, with reference to the following
facts:
A. [▇▇▇▇▇▇ Realty Corporation], a _______________ corporation (the
"Borrower") is the owner of the _____ (_) parcels of land (collectively, the
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"Land") as more particularly described in Exhibit A-1 through Exhibit A- and
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the improvements located thereon (collectively, the "Property"); and
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B. Indemnitor is the sole beneficial owner of the Borrower.
C. Lenders have loaned or will loan to the Borrower the sum of up to
$75,000,000 (the "Loan"), payment of which is evidenced by certain notes of even
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date herewith, from the Borrower to each Lender, all as more particularly
described in the Credit Agreement (individually and collectively, the "Note"),
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which Note is secured by one or more Indenture(s) of Mortgage, Deed of Trust,
Security Agreement, Financing Statement, Fixture Filing and Assignment of Leases
and Rents, of even date herewith (said Indenture(s) 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 "Deed of Trust") encumbering the
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Property (the Credit Agreement, the Deed of Trust, the Note, and any other
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, Lenders require Indemnitor to
indemnify and hold harmless Lenders from any Environmental Claim, any
Requirements of Environ-
mental Law, or the violation of any Environmental Approval (as these terms are
defined in Section 1 below) attributable to Material of Environmental Concern
(as defined in Section 1 below) and related to the Property. Lenders would not
make the Loan without this Indemnity Agreement and Indemnitor acknowledges and
understands that this Indemnity Agreement is a material inducement for Lenders'
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" shall have the meaning set forth in the
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Credit Agreement.
(b) "Environmental Claim" shall have the meaning set forth in the
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Credit Agreement.
(c) "Environmental Law" shall have the meaning set forth in the Credit
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Agreement.
(d) "Indemnitee" or "Indemnitees" means (individually and
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collectively), the Agent, Lenders, any purchaser or assignee of all or any
part of the Note, including, without limitation, any of each Lender's
participants in the Loan, and their respective affiliates, officers,
directors, shareholders, and employees and their respective successors and
assigns. Notwithstanding the foregoing, "Indemnitee(s)" does not include
any person or entity (other than Lenders, any purchaser or assignee of all
or any part of the Note, including, without limitation, any of Lenders'
participants in the Loan, or any affiliate of Lenders or such purchaser,
assignee or participant) who purchases or acquires all or any part of the
Property (i) by any foreclosure under the Deed of Trust, 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 Lenders, from
any purchaser or assignee of all or any part of the Note, including,
without limitation, any of Lenders' participants in the Loan, or from any
affiliate of Lenders or such purchaser, assignee or participant.
(e) The term "Material of Environmental Concern" shall have the
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meaning set forth in the Credit Agreement.
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(f) "Requirements" shall have the meaning set forth in the Credit
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Agreement.
(g) Terms not otherwise defined in this Indemnity Agreement shall
have the meanings ascribed to them in the Credit Agreement and the Deed of
Trust.
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, 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 be
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imposed upon Indemnitee or incurred by any Indemnitee and which arise (directly
or indirectly): (i) from Requirements of Environmental Law 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 the
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 Material of
Environmental Concern in violation of Requirements of Environmental Law 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 Material of Environmental Concern from the Property in violation of
Requirements of Environmental Law, 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 the Agent of any matter for which such Indemnitee shall seek
indemnification hereunder, and the Agent 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 the Agent
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).
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(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 the
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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 Material of Environmental Concern in
or into the air, soil, groundwater, surface water or soil vapor at, on, about,
under or within 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
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diligently and in good faith and such contest shall not expose any Indemnitee to
any civil or criminal penalty or liability. Upon demand of the Agent 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 the
Agent (which approval shall not be unreasonably withheld or delayed), and under
the supervision of a consulting engineer approved in advance in writing by the
Agent (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.
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(c) Anything to the contrary set forth in this Indemnity Agreement,
in the Deed of Trust, 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 Material of Environmental Concern at the Property, or
(ii) material aggravation of a then existing Material of Environmental Concern
condition or occurrence at the Property. In addition, if the Agent, any
Lender(s) or any affiliate(s) of either or any other person or entity acquire
ownership of the Property through a foreclosure, or the exercise of a power of
sale under the Deed of Trust 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 Material of Environmental Concern at the Property by any party,
other than the Borrower, any other Indemnitor or an affiliate of Indemnitor, at
any time after the Agent, Lender(s), such affiliate(s) or such other person or
entity have acquired title to the Property or (z) material aggravation of a then
existing Material of Environmental Concern condition or occurrence at the
Property by any party, other than the Borrower, Indemnitor or an affiliate of
Indemnitor, at any time after the Agent, Lender(s), such affiliate(s) or such
other person or entity have acquired title to the Property.
Notwithstanding the foregoing, the liability of Indemnitor hereunder
shall otherwise remain in full force and effect after the Agent, Lender(s) or
such affiliate(s) so acquire title to the Property, including without limitation
with respect to any Material of Environmental Concern which is discovered at the
Property after the date the Agent, Lender(s) or such affiliate(s) acquire 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
Material of Environmental Concern introduced at the Property prior to the date
that the Agent, Lender(s) or such affiliate(s) acquire title.
(d) This Indemnity Agreement is solely intended to protect Lenders
from the matters set forth in the preceding paragraphs 2(a) and 2(b) and is not
intended to secure payment of the Note or amounts due to Lenders under the Deed
of Trust. This Indemnity Agreement is not intended to be, nor shall it be,
secured by the Deed of Trust or any of the other Loan Documents. The
obligations of Indemnitor
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under this Indemnity Agreement shall be as set forth herein notwithstanding any
similar provisions in the Deed of Trust.
(e) 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 Lenders may have against the
Borrower pursuant to the terms of the Deed of Trust Indemnitor or any other
party (or which Indemnitor or the Borrower may have against Lenders 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 the Agent 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 Material of
Environmental Concern 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 Law; (ii) all Environmental Claims and any other written claims
made or threatened against the Borrower or Indemnitor or the Property relating
to any loss or injury resulting from or pertaining to any Material of
Environmental Concern or any alleged breach or violation of any Requirements of
Environmental Law; (iii) the 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 Law; and (iv) the 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 Material of Environmental
Concern on, under, or about the Property, in violation of any Requirements of
Environmental Law pertaining to Indemnitor or the Property.
(b) Immediately upon the Borrower's or Indemnitor's receipt of the
same, Indemnitor shall deliver to the Agent copies of any and all Environmental
Claims, and
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any and all orders, notices, permits, applications, reports, and other
communications, documents, and instruments pertaining to the actual or alleged
presence or existence of any Material of Environmental Concern on, under, or
about the Property in violation of any Requirements of Environmental Law.
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 Material of Environmental
Concern 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 the Borrower under the Deed of
Trust. Indemnitor shall have no liability under this paragraph (a) unless the
Agent 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 the Borrower without
the prior written consent of the Agent (which consent shall not be unreasonably
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withheld or delayed)to , (i) settle or compromise any action, suit, proceeding,
or claim relating, directly or indirectly, to any Material of Environmental
Concern or any Environmental Claim or consent to the entry of any judgment
therein for which the Agent or Lenders might be wholly or partially liable that
does not include as an unconditional term thereof the delivery by the claimant
or plaintiff to the Agent and Lenders of a written release of the Agent and
Lenders (in form, scope and substance satisfactory to the Agent and Lenders in
their 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 Material of Environmental Concern
or any Environmental Claim in any manner that may materially and adversely
affect the Agent or Lenders as determined by any Lender and/or the Agent in
their reasonable judgment.
(d) Without limiting the rights of Indemnitor pursuant to Section
4(b) above, the Agent and Lenders 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 Material of Environmental Concern or any Requirements
of Environmental Law. In any circumstance in which this indemnity applies, the
Agent and Lenders may employ their 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 the Agent and Lenders upon demand for all reasonable costs and
expenses incurred by the Agent and Lenders, 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
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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 limited or impaired by any amendment or
modification of the provisions of the Loan Documents to or with the Agent or
Lenders by Indemnitor or any person who succeeds the 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 Deed of Trust 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 Lenders' recourse to property encumbered by
the Deed of Trust or to any other security, or limiting Lenders' rights to a
deficiency or other judgment against Indemnitor or any other obligor or
guarantor thereunder (including, without limitation, Section 9.13(b) of the
Credit Agreement and the corresponding exculpation provisions set forth in the
Note, the Deed of Trust and this Indemnity Agreement); (iv) the accuracy or
inaccuracy of the representations and warranties made by the Borrower under any
of the Loan Documents; (v) the release of the 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,
Lenders' voluntary act, or otherwise; (vi) the release or substitution in whole
or in part of any security for the Note; or (vii) Lenders' failure to record any
Deed of Trust or file any UCC financing statements (or Lenders' 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 Lenders and/or the Agent 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 provided for hereunder shall neither be contingent
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upon the
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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 Lenders
and/or the Agent. Indemnitor hereby agrees to postpone the exercise of any and
all rights of subrogation to the rights of Lenders and/or the Agent against the
Borrower hereunder and any rights of subrogation to any collateral securing the
Loan until the Loan shall have been paid in full.
9. Delay. No delay on the Lenders' and/or the Agent's part in
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exercising any right, 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: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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To the Lenders and/or the Agent:
▇▇▇▇▇▇ Note Trust Company
of New York
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇▇
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
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statutes).
12. Successive Actions. A separate right of action hereunder shall
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arise each time the Agent or the Lenders acquire 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,
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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 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 Deed of Trust) 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 Credit Agreement, the Deed of Trust and the
other Loan Documents and (b) two (2) years after the date on which the Lenders
or any affiliate thereof (or any other Person (other than the Borrower) acting
through or on behalf of the Lenders, there respective successors and assigns,
and any affiliates 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.
[INDEMNITOR]
By: _______________________
Name:
Title:
13
ACKNOWLEDGMENT FOR INDEMNITOR
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STATE OF )
) ss.:
COUNTY OF )
On ________ __, 199_, before me personally came ______________, to me
known to be the person who executed the foregoing instrument.
[Seal]
_____________________________
Notary Public
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