INDEMNITY AND GUARANTY AGREEMENT
Exhibit
10.20
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INDEMNITY AND GUARANTY
AGREEMENT
THIS INDEMNITY AND GUARANTY AGREEMENT
(this "Agreement"),
executed this 18th day of
November, 2002 and effective as of the 19th day of November, 2002, by BELTWAY
ASSETS HOLDINGS LLC, a Delaware limited liability company (the "Indemnitor"), having an
office at c/o 5847 San ▇▇▇▇▇▇ Drive, Suite 2600, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, in favor
of ▇▇▇▇ ▇▇▇▇▇ REAL ESTATE SERVICES, INC., a Pennsylvania corporation (together
with any subsequent holder of the hereinafter defined Note, the "Lender"), having an address
at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
WITNESSETH:
WHEREAS,
Beltway Assets LLC, a Delaware limited liability company (the "Borrower"), has obtained a
loan in the principal amount of THIRTY-ONE MILLION NINETEEN THOUSAND TWO HUNDRED
FIFTY DOLLARS AND NO/100 CENTS ($31,019,250.00) (the "Loan") from Lender pursuant
to a Loan Agreement, dated as of November 19, 2002, between Borrower and Lender
(the "Loan Agreement");
and
WHEREAS,
capitalized terms used in this Agreement and not otherwise defined in the body
of this Agreement have the meaning ascribed to such terms in Appendix A to the
Loan Agreement, and the rules of construction set forth in Appendix A apply
hereto; and
WHEREAS,
as a condition to making the Loan to Borrower, Lender has required that
Indemnitor indemnify Lender from and against, and guarantee to pay to Lender,
those items for which Borrower is personally liable and for which Lender has
recourse against Borrower under Section 12.13 of the Loan Agreement;
and
WHEREAS,
Indemnitor is an affiliate of Borrower, the extension of the Loan to Borrower is
of substantial benefit to Indemnitor and, therefore, Indemnitor desires to
indemnify Lender from and against and guaranty to pay to Lender those items for
which Borrower is personally liable and for which Lender has recourse against
Borrower under Section 12.13 of the Loan Agreement.
NOW,
THEREFORE, to induce Lender to extend the Loan to Borrower and in consideration
of the foregoing premises and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, and intending to be
legally bound hereby, Indemnitor agrees for the benefit of Lender, as
follows:
A. Indemnity and
Guaranty.,
1.
Indemnitor hereby assumes liability for, hereby guarantees to pay to Lender,
hereby agrees to pay, protect, defend absolutely and unconditionally and save
the Indemnified Parties harmless from and against, and hereby indemnifies the
Indemnified Parties from and against any Indemnified Liabilities which may at
any time be imposed upon, incurred by or awarded against the Indemnified Parties
as a result of the occurrence of any one or more of the following (collectively,
the "Recourse
Obligations"):
(i) Borrower's
failure to account for Tenant's security deposits, if any, for Rent or any other
payment collected by Borrower from Tenant under the Lease, all in accordance
with the provisions of the Loan Documents;
(ii) after
an uncured Event of Default, Borrower's failure to apply 100% of the Basic Rent
and Additional Rent (other than Excepted Rights and Payments), received by
Borrower to repay the Debt;
(iii) fraud
or a material misrepresentation made by Borrower, Indemnitor, or the holders of
beneficial or ownership interests in Borrower, in connection with the financing
evidenced by the Loan Documents;
(iv) any
attempt by Borrower or Indemnitor to divert or otherwise cause to be diverted
any amounts payable to Lender or Servicer for in accordance with the Loan
Documents;
(v) the
misappropriation or misapplication of any insurance proceeds or Condemnation
awards relating to the Mortgaged Property;
(vi) Borrower's
failure to maintain its existence as a special purpose, "bankruptcy remote"
entity, in good standing, as required by Article 6 of the Loan
Agreement;
(vii) a
Transfer in violation of Section 5.02 of the Loan Agreement; or
(viii) any
environmental matter(s) affecting the Mortgaged Property which is introduced or
caused by Borrower, Indemnitor or any beneficial owner of Borrower.
2.
Indemnitor hereby assumes liability for, hereby guarantees to pay to Lender,
hereby agrees to pay, protect, defend and save the Indemnified Parties harmless
from and against, and hereby indemnifies the Indemnified Parties from and
against any and all Indemnified Liabilities including, increased or additional
tax liability, damages arising under state, federal, ERISA or tax law or
regulation which may at any time be imposed upon, incurred by or awarded against
the Indemnified Parties as a result of the occurrence of any action whatsoever
taken by the Borrower or any beneficial owner or member of Borrower, including,
any amendment, modification, revision or alteration to any of the Loan
Documents, or, only to the extent requested by either the Borrower or any
beneficial owner or member of Borrower, any trust agreement entered into by the
Lender or its successors and assigns with respect to the Loan or the
certificates issued thereunder, which alter, affect, change or modify the tax
treatment, tax characterization, state law characterization, or in any other way
alter, affect, change or modify the nature of the trust so created (as defined
in the above-mentioned trust agreement or the certificates) including, taxes
imposed on the trustee thereof as a result of such trustee not being treated as
a grantor trust for federal income tax purposes, to the extent such taxes exceed
the amount that would be otherwise payable by to a lender if the trust were
treated as a grantor trust.
IMPORTANT - READ
THIS
INDEMNITOR
ACKNOWLEDGES THAT PURSUANT TO THE FOREGOING INDEMNITY IT HAS AGREED TO INDEMNIFY
AND HOLD HARMLESS THE INDEMNIFIED PARTIES FROM AND AGAINST ANY AND ALL
LIABILITIES ARISING BY REASON OF THE ACTS OR OMISSIONS OF ANY OF THE INDEMNIFIED
PARTIES AND OTHERWISE, WHICH LIABILITIES INCLUDE, WITHOUT LIMITATION, EXCEPT AS
PROVIDED ABOVE, SOLE NEGLIGENCE, CONCURRENT NEGLIGENCE, STRICT LIABILITY,
CRIMINAL LIABILITY, STATUTORY LIABILITY, LIABILITY FOR INJURIES NOT COMPENSATED
BY WORKERS' COMPENSATION INSURANCE, OTHER INJURIES OR LOSSES NOT COVERED BY
INSURANCE AND LIABILITY ARISING AS A RESULT OF WAIVERS, EXCULPATIONS,
DISCLAIMERS OR RELEASES. IF SUCH LIABILITY ARISES BY REASON OF THE GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT OF AN INDEMNIFIED PARTY (OR INDEMNIFIED
PARTIES, AS THE CASE MAY BE) (HEREINAFTER A "RESPONSIBLE INDEMNIFIED PARTY")
THIS INDEMNITY SHALL NOT EXTEND TO ANY SUCH RESPONSIBLE INDEMNIFIED PARTY, BUT
SHALL EXTEND TO ALL OTHER INDEMNIFIED PARTIES.
3. This
is a guaranty of payment and performance and not of collection. Indemnitor's
liability under this Agreement is direct and immediate and not conditional or
contingent upon the pursuit of any remedies against Borrower or any other person
(including, other guarantors, if any), nor against the collateral for the Loan.
Indemnitor waives any right to require that an action be brought against
Borrower or any other person or to require that resort be had to any collateral
for the Loan or to any balance of any deposit account or credit on the books of
Lender in favor of Borrower or any other person. If, on account of the
Bankruptcy Code, or any other debtor relief law (whether statutory, common law,
case law or otherwise) of any jurisdiction whatsoever, now or hereafter in
effect, which may be or become applicable, Borrower is relieved of the Recourse
Obligations, Indemnitor will nevertheless be fully liable therefor. If an Event
of Default exists, Lender may enforce its rights, powers and remedies
(including, foreclosure of all or any portion of the collateral for the Loan)
thereunder or hereunder, in any order, and all rights, powers and remedies
available to Lender in such event are non-exclusive and cumulative of all other
rights, powers and remedies provided thereunder or hereunder or by law or in
equity. If the indebtedness and obligations guaranteed hereby are partially paid
or discharged by reason of the exercise of any of the remedies available to
Lender, this Agreement will nevertheless remain in full force and effect, and
Indemnitor shall remain liable for all remaining indebtedness and obligations
guaranteed hereby, even though any rights which Indemnitor may have against
Borrower may be destroyed or diminished by the exercise of any such
remedy.
B. Indemnification
Procedures.
1. If
any action is brought against any Indemnified Party based upon any of the
matters for which such Indemnified Party is indemnified hereunder, such
Indemnified Party will notify Indemnitor in writing thereof and Indemnitor will
promptly assume the defense' thereof, including, the employment of counsel by
Indemnitor which is reasonably acceptable to such Indemnified Party and the
negotiation of any settlement; provided, however, that any
failure of such Indemnified Party to notify Indemnitor of such matter will not
impair or reduce the obligations of Indemnitor hereunder after such notice. Any
Indemnified Party may, at Indemnitor's expense (which expense will be included
in Indemnified Liabilities), employ separate counsel (provided that a conflict
of interest exists that would preclude the Indemnitor's counsel from
representing any such Indemnified Party) in any such action and participate in
the defense thereof. If after delivery of timely notice from an Indemnified
Party, the Indemnitor fails to discharge or undertake to defend any such
Indemnified Party against any Indemnified Liabilities for which such Indemnified
Party is indemnified hereunder, such Indemnified Party may, at its sole option
and election, defend or settle such Indemnified Liabilities. The liability of
Indenmitor to any Indemnified Party hereunder shall be conclusively established
by such settlement, provided such settlement is made in good faith, the amount
of such liability to include both the settlement consideration and the costs and
expenses, including, reasonable attorneys' fees and disbursements, incurred by
such Indemnified Party in effecting such settlement. In such event, such
settlement consideration, costs and expenses shall be included in Indemnified
Liabilities and Indemnitor shall pay the same as hereinafter provided. Such
Indemnified Party's good faith in any such settlement will be conclusively
established if the settlement is made on the advice of independent legal counsel
for such Indemnified Party.
2. Indemmitor
shall not, without the prior written consent of any Indemnified Party: (i)
settle or compromise any action, suit, proceeding or claim or consent to the
entry of any judgment that does not include as an unconditional term thereof the
delivery by the claimant or plaintiff to such Indemnified Party of a full and
complete written release of such Indemnified Party (in form, scope and substance
satisfactory to such Indemnified Party in its sole discretion) from all
liability in respect of such action, suit, proceeding or claim and a dismissal
with prejudice of such action, suit, proceeding or claim; or (ii) settle or
compromise any action, suit, proceeding or claim in any manner that may
adversely affect such Indemnified Party or obligate such Indemnified Party to
pay any sum or perform any obligation.
3. All
Indemnified Liabilities are immediately reimbursable to any Indemnified Party
when and as incurred and, in the event of any litigation, claim or other
proceeding, without any requirement of waiting for the ultimate outcome of such
litigation, claim or other proceeding, and Indemnitor shall pay to such
Indemnified Party any and all Indemnified Liabilities within thirty (30) days
after written notice from such Indemnified Party itemizing and providing
documentation to support the amounts thereof incurred to the date of such
notice. In addition to any other remedy available for the failure of Indemnitor
to periodically pay such Indemnified Liabilities, such Indemnified Liabilities,
if not paid within said thirty-day period, shall bear interest at the Default
Rate if, and to the extent and from the date that, Indemnified Party has paid or
caused the payment of such Indemnified Liabilities.
C. Reinstatement of
Obligations. If at any time all or any part of any payment made by
Indemnitor or received by any Indemnified Party from Indemnitor under or with
respect to this Agreement is or must be rescinded or returned for any reason
whatsoever (including, the insolvency, bankruptcy or reorganization of
Indemnitor or Borrower), then the obligations of Indemnitor hereunder shall, to
the extent of the payment rescinded or returned, be deemed to have continued in
existence, notwithstanding such previous payment made by Indemnitor, or receipt
of payment by such Indemnified Party, and the obligations of Indemnitor
hereunder shall continue to be effective or be reinstated, as the case may be,
as to such payment, all as though such previous payment by Indemnitor had never
been made.
D. Waivers by
Indemnitor. To the extent permitted by law, Indemnitor hereby waives and
agrees not to assert or take advantage of:
1. Any
right to require Lender to proceed against Borrower or any other
person or
to proceed against or exhaust any security held by Lender at any time or to
pursue any other remedy in Lender's power or under any other agreement before
proceeding against Indemnitor hereunder
2. The
right to assert a counterclaim, other than a mandatory or compulsive
counterclaim, in any action or proceeding brought against or by
Indemnitor;
3. Any
defense that may arise by reason of the incapacity, lack of authority, death or
disability of any other person or persons or the failure of Lender to file or
enforce a claim against the estate (in administration, bankruptcy or any other
proceeding) of any other person or persons;
4. Demand,
presentment for payment, notice of nonpayment, protest, notice of acceptance
hereof, notice of protest and all other notices (other than as may be expressly
herein required) of any kind, or the lack of any thereof, including, without
limiting the generality of the foregoing, notice of the existence, creation or
incurring of any new or additional indebtedness or obligation or of any action
or non-action on the part of Borrower, Lender, any endorser or creditor of
Borrower or of Indemnitor or on the part of any other person whomsoever under
this or any other instrument in connection with any obligation or evidence of
indebtedness held by Lender;
5. Any
defense based upon an election of remedies by Lender;
6. Any
right or claim or right to cause a marshalling of the assets of Indemnitor or to
cause Lender to proceed against any of the security for the Loan before
proceeding under this Agreement against Indemnitor;
7. Any
principle or provision of law, statutory or otherwise, which is or might be in
conflict with the terms and provisions of this Agreement;
8. Any
duty on the part of Lender to disclose to Indemnitor any facts Lender may now or
hereafter know about Borrower, Tenant, or the Mortgaged Property, regardless of
whether Lender has reason to believe that any such facts materially increase the
risk beyond that which Indemnitor intends to assume or has reason to believe
that such facts are unknown to Indemnitor or has a reasonable opportunity to
communicate such facts to Indemnitor, it being understood and agreed that
Indemnitor is fully responsible for being and keeping informed of the financial
condition of Borrower, Tenant or of the condition of the Mortgaged Property and
of any and all circumstances bearing on the risk that liability may be incurred
by Indemnitor hereunder;
9. Any
lack of notice of disposition or of manner of disposition of any collateral for
the Loan;
10. Any
invalidity, irregularity or unenforceability, in whole or in part, of any one or
more of the Loan Documents;
11. Any
lack of commercial reasonableness in dealing with the collateral for
the
Loan;
12. Any
deficiencies in the collateral for the Loan or any deficiency in the ability of
Lender to collect or to obtain performance from any persons or entities now or
hereafter liable for the payment and performance of any obligation hereby
guaranteed;
13. An
assertion or claim that the automatic stay provided by 11 U.S.C. §362 (arising
upon the voluntary or involuntary bankruptcy proceeding of Borrower) or any
other stay provided under any other debtor relief law (whether statutory, common
law, case law or, otherwise) of any jurisdiction whatsoever, now or. hereafter
in effect, which may be or become applicable, shall operate or be interpreted to
stay, interdict, condition, reduce or inhibit the ability of Lender to enforce
any of its rights, whether now or hereafter required, which Lender may have
against Indemnitor or the collateral for the Loan; and
14. Any
modifications of the Loan Documents or any obligation of Borrower relating to
the Loan by operation of law or by action of any court, whether pursuant to the
Bankruptcy Code, or any other debtor relief law (whether statutory, common law,
case law or otherwise) of any jurisdiction whatsoever, now or hereafter in
effect, or otherwise.
E. General
Provisions.
1. Fully Recourse. All
of the terms and provisions of this Agreement are recourse obligations of
Indemnitor and are not restricted by any limitation on personal
liability.
2. Unsecured
Obligations. Indemnitor hereby acknowledges that Lender's appraisal of
the Mortgaged Property is such that Lender is not willing to accept the
consequences of the inclusion of Indemnitor's indemnity set forth herein among
the obligations secured by the Indenture and the other Loan Documents and that
Lender would not make the Loan but for the unsecured personal liability
undertaken by Indemnitor herein.
3. Survival. This
Agreement shall be deemed to be continuing in nature and shall remain in full
force and effect and shall survive the exercise of any remedy by Lender under
the Indenture or any of the other Loan Documents, including, without limitation,
any defeasance of the Note or any foreclosure or deed in lieu thereof, even if,
as a part of such remedy, the Loan is paid or satisfied in full but only as to
matters occurring before such defeasance, foreclosure or deed in lieu of
foreclosure, as the case may be; provided, however, that Lender shall not be
entitled to recover against Indemnitor under this Agreement for an amount in
excess of the amount of the Indemnified Liabilities Indemnified
Liabilities.
4. No Subrogation; No Recourse
Against Lender. Notwithstanding the satisfaction by Indemnitor of any
liability hereunder, Indemnitor shall not have any right of subrogation,
contribution, reimbursement or indemnity whatsoever or any right of recourse to
or with respect to the assets or property of Borrower or to any collateral for
the Loan unless and until Indemnitor fully satisfies the payment of the Loan,
all other amounts due under the Loan Documents, and the Indemnified Liabilities
have been indefeasibly paid in full. In connection with the foregoing,
Indemnitor expressly waives any and all rights of subrogation to Lender against
Borrower (except as expressly provided above), and Indemnitor hereby waives any
rights to enforce any remedy which Lender may have against Borrower and any
right to participate in any collateral for the Loan. In addition to and without
in any way limiting the foregoing, Indemnitor hereby subordinates any and all
indebtedness of Borrower now or hereafter owed to Indemnitor to all indebtedness
of Borrower to Lender, and agrees with Lender that Indemnitor shall not demand
or accept any payment of principal or interest from Borrower, shall not claim
any offset or other reduction of Indemnitor's obligations hereunder because of
any such indebtedness and shall not take any action to obtain any of the
collateral from the Loan. Further, Indemnitor shall not have any right of
recourse against Lender by reason of any action Lender may take or omit to take
under the provisions of this Agreement or under the provisions of any of the
Loan Documents.
5. Reservation of
Rights. Nothing contained in this Agreement shall prevent or in any way
diminish or interfere with any rights or remedies, including, without
limitation, the right to contribution, which Lender may have against Borrower,
Indemnitor or any other party under the Comprehensive Environmental Response,
Compensation and Liability Act of ' 1980 (codified at Title 42 U.S.C. §9601 et
sect.), as it may be amended from time to time, or any other applicable federal,
state or local laws, all such rights being hereby expressly
reserved.
6. Financial Statements.
Indemnitor hereby agrees, as a material inducement to Lender to make the Loan to
Borrower, to furnish to Lender promptly upon demand by Lender after an Event of
Default current and dated financial statements detailing the assets and
liabilities of Indemnitor certified by Indemnitor, in form and substance
reasonably acceptable to Lender. Indemnitor hereby warrants and represents unto
Lender that any and all balance sheets, net worth statements and other financial
data which have heretofore been given or may hereafter be given
to Lender
with respect to Indemnitor did or will as of the effective date thereof fairly
and accurately present the financial condition of Indemnitor.
7. Rights Cumulative;
Payments. Lender's rights under this Agreement shall be in addition to
all rights of Lender under the Note, the Indenture and the other Loan Documents.
FURTHER, PAYMENTS MADE BY INDEMNITOR UNDER THIS AGREEMENT SHALL NOT REDUCE IN
ANY RESPECT BORROWER'S OBLIGATIONS AND LIABILITIES UNDER THE NOTE, THE INDENTURE
AND THE OTHER LOAN DOCUMENTS.
8. No Limitation on
Liability. Indemnitor hereby consents and agrees that Lender may at any
time and from time to time without further consent from Indemnitor do any of the
following events, and the liability of Indemnitor under this Agreement shall be
unconditional and absolute and shall in no way be impaired or limited by any of
the following events, whether occurring with or without notice to Indemnitor or
with or without consideration: (i) any extensions of time for performance
required by any of the Loan Documents or extension or renewal of the Note; (ii)
any sale, assignment or foreclosure of the Note, the Indenture or any of the
other Loan Documents or any sale or transfer of the Mortgaged Property; (iii)
any change in the composition of Borrower, including, without limitation, the
withdrawal or removal of the beneficial owner from any current or future
position of ownership, management or control of Borrower; (iv) the accuracy or
inaccuracy of the representations and warranties made by Indemnitor herein or by
Borrower in any of the Loan Documents; (v) the release of Borrower or of 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
substitution in whole or in part of any security for the Loan, including without
limitation, the defeasance contemplated by the. Note; (vii) Lender's failure to
record the Indenture or to file any financing statement (or Lender's improper
recording or filing thereof) or to otherwise perfect, protect, secure or insure
any lien or security interest given as security for the Loan; (viii) the
modification of the terms of any one or more of the Loan Documents; or (ix) the
taking or failure to take any action of any type whatsoever. No such action
which Lender shall take or fail to take in connection with the Loan Documents or
any collateral for the Loan, nor any course or dealing with Borrower or any
other person, shall limit, impair or release Indemnitor's obligations hereunder,
affect this Agreement in any way or afford Indemnitor any recourse against
Lender. Nothing contained in this Section shall be construed to require Lender
to take or refrain from taking any action referred to herein. Notwithstanding
the foregoing, if as a result of a Permitted Transfer (as completed in
compliance with the terms and provisions of Section 9 of the Indenture), the
Indemnitor shall no longer be affiliated with any entity which has any interest
in the Mortgaged Property, Indemnitor may offer a substitute indemnitor to
assume any obligations of Indemnitor hereunder arising after the date of the
Transfer in accordance with the terms of the Indenture, upon which assumption
and the satisfaction of all of the conditions contained in the Indenture, the
Indemnitor shall be released as to any obligations arising after such assumption
to the extent specified in the Indenture.
9. Entire Agreement; Amendment;
Severability. This Agreement contains the entire agreement between the
parties respecting the matters herein set forth and supersedes all prior
agreements, whether written or oral, between the parties respecting such
matters. Any amendments or modifications hereto, in order to be effective, shall
be in writing and executed by the parties hereto. A determination that any
provision of this Agreement is unenforceable or invalid shall not affect the
enforceability or validity of any other provision, and any determination that
the application of any provision of this Agreement to any person or circumstance
is illegal or unenforceable shall not affect the enforceability or validity of
such provision as it may apply to any other persons or
circumstances.
10. Governing Law; Binding
Effect; Waiver of Acceptance. This Agreement shall be governed by and
construed in accordance with the laws of the State of Texas, except to the
extent that the applicability of any of such laws may now or hereafter be
preempted by Federal law, in which case such Federal law, as appropriate, shall
so govern and be controlling. This Agreement shall bind Indemnitor and the
heirs, personal representatives, successors and assigns of Indemnitor and shall
inure to the benefit of Lender and the officers, directors, shareholders, agents
and employees of Lender and their respective heirs, successors and assigns.
Notwithstanding the foregoing, Indemnitor shall not assign any of its rights or
obligations under this Agreement without the prior written consent of Lender,
which consent may be withheld by Lender in its sole discretion. Indemnitor
hereby waives any acceptance of this Agreement by Lender, and this Agreement
shall immediately be binding upon Indemnitor.
11. Notice. All
communications herein provided for or made pursuant hereto shall be in writing
and shall be sent by (i) registered or certified mail, return receipt requested,
and the giving of such communication shall be deemed complete on the third
Business Day (as such term is defined in the Lease) after the same is deposited
in a United States Post Office with postage charges prepaid, (ii) reputable
overnight delivery service with acknowledgment receipt returned, and the giving
of such communication shall be deemed complete on the immediately succeeding
Business Day after the same is timely deposited with such delivery service, or
(iii) hand delivery by reputable delivery service:
If to
Indemnitor:
Beltway
Assets Holdings LLC
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Attention:
J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Vice President & Chief Financial
Officer
with a
copy concurrently to:
Beltway
Assets Holdings LLC
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Attention:
▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq., Vice President
and a
copy to:
Schlanger,
Mills, ▇▇▇▇▇ & Silver, L.L.P.
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▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
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Attention:
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esquire
If to
Lender:
▇▇▇▇
▇▇▇▇▇ Real Estate Services, Inc.
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▇.▇. ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
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▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
W. ▇▇▇▇ ▇▇▇▇
with a
copy concurrently to:
▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, LLP
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
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Attention:
▇▇▇▇ ▇▇▇▇, III, Esquire
12. No Waiver; Time of Essence;
Business Day. The failure of any party hereto to enforce any right or
remedy hereunder, or to promptly enforce any such right or remedy, shall not
constitute a waiver thereof nor give rise to any estoppel against such party nor
excuse any of the parties hereto from their respective obligations hereunder.
Any waiver of such right or remedy must be in writing and signed by the party to
be bound. This Agreement is subject to enforcement at law or in equity,
including actions for damages or specific performance. Time is of the essence
hereof. The term "business day" as used herein shall mean a weekday, Monday
through Friday, except a legal holiday or a day on which banking institutions in
New York, New York are authorized by law to be closed.
13. Captions for
Convenience. The captions and headings of the sections and paragraphs of
this Agreement are for convenience of reference only and shall not be construed
in interpreting the provisions hereof.
14. Attorneys' Fees. In
the event it is necessary for Lender to retain the services of an attorney or
any other consultants in order to enforce this Agreement, or any portion
thereof, Indemnitor agrees to pay to Lender any and all costs and expenses,
including, without limitation, reasonable attorneys' fees, incurred by Lender as
a result thereof including without limitation, such attorneys' fees and costs at
trial, on appeal, or on petition for review, and in proceedings, petitions, or
motions in bankruptcy and such costs, fees and expenses shall be included in
Indemnified Liabilities.
15. Successive Actions. A
separate right of action hereunder shall arise each time Lender acquires
knowledge of any matter indemnified or guaranteed by Indemnitor under this
Agreement. 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.
16. Reliance. Lender
would not make the Loan to Borrower without this Agreement. Accordingly,
Indemnitor intentionally and unconditionally enters into the covenants and
agreements as set forth above and understands that, in reliance upon and in
consideration of such covenants and agreements, the Loan shall be made and, as
part and parcel thereof, specific monetary and other obligations have been, are
being and shall be entered into which would not be made or entered into but for
such reliance.
17. SUBMISSION TO JURISDICTION;
WAIVER OF JURY TRIAL.
(1)
INDEMNITOR, TO THE FULL EXTENT PERMITTED BY LAW, HEREBY KNOWINGLY, INTENTIONALLY
AND VOLUNTARILY, WITH AND-UPON THE
ADVICE OF COMPETENT COUNSEL, (A) SUBMITS TO PERSONAL JURISDICTION IN THE STATE
OF TEXAS OVER ANY SUIT, ACTION OR PROCEEDING BY ANY PERSON ARISING FROM OR
RELATING TO THIS AGREEMENT, (B) AGREES THAT ANY SUCH ACTION, SUIT OR PROCEEDING
MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION SITTING
IN THE COUNTY AND STATE OF TEXAS, (C) SUBMITS TO THE JURISDICTION OF SUCH
COURTS, AND, (D) TO THE FULLEST EXTENT PERMITTED BY LAW, AGREES THAT IT WILL NOT
BRING ANY ACTION, SUIT OR PROCEEDING IN ANY OTHER FORUM (BUT NOTHING HEREIN
SHALL AFFECT THE RIGHT OF LENDER TO BRING ANY ACTION, SUIT OR PROCEEDING IN ANY
OTHER FORUM). INDEMNITOR FURTHER, CONSENTS AND AGREES TO SERVICE OF ANY SUMMONS,
COMPLAINT OR OTHER LEGAL PROCESS IN ANY SUCH SUIT, ACTION OR PROCEEDING BY
REGISTERED OR CERTIFIED U.S. MAIL, POSTAGE PREPAID, TO THE INDEMNITOR AT THE
ADDRESS SET FORTH HEREIN, AND CONSENTS AND AGREES THAT SUCH SERVICE SHALL
CONSTITUTE IN EVERY RESPECT VALID AND EFFECTIVE SERVICE (BUT NOTHING HEREIN
SHALL AFFECT THE VALIDITY OR EFFECTIVENESS OF PROCESS SERVED IN ANY OTHER MANNER
PERMITTED BY LAW).
(2) INDEMNITOR
AND LENDER EACH, TO THE FULL EXTENT PERMITTED BY LAW, HEREBY KNOWINGLY,
INTENTIONALLY AND VOLUNTARILY, WITH AND UPON THE ADVICE OF COMPETENT COUNSEL,
WAIVES, RELINQUISHES AND FOREVER FORGOES THE RIGHT TO A TRIAL BY JURY IN ANY
ACTION OR PROCEEDING BASED UPON, ARISING OUT OF, OR IN ANY WAY RELATING TO THIS
AGREEMENT OR ANY CONDUCT, ACT OR OMISSION OF LENDER OR INDEMNITOR, OR ANY OF ITS
DIRECTORS, OFFICERS, PARTNERS, MEMBERS, EMPLOYEES, AGENTS OR ATTORNEYS, OR ANY
OTHER PERSONS AFFILIATED WITH LENDER OR INDEMNITOR, IN EACH OF THE FOREGOING
CASES, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE.
18. Waiver by Indemnitor.
Indemnitor covenants and agrees that, upon the commencement
of a
voluntary or involuntary bankruptcy proceeding by or against Borrower,
Indemnitor shall not seek or cause Borrower or any other person or entity to
seek a supplemental stay or other relief, whether injunctive or otherwise,
pursuant to 11 U.S.C. §105 or any other provision of the Bankruptcy Code, or any
other debtor relief law, (whether statutory, common law, case law or otherwise)
of any jurisdiction whatsoever, now or hereafter in effect, which may be or
become applicable, to stay, interdict, condition, reduce or inhibit the ability
of Lender to enforce any rights of Lender against Indemnitor or the collateral
for the Loan by virtue of this Agreement or otherwise.
19. Assignments By
Lender.
(a) Lender
may at its sole cost and expense, without notice to, or consent of, Indemnitor,
sell, assign or transfer to or participate with any entity or entities all or
any part of the indebtedness evidenced by the Note and secured by the Indenture,
and each such entity or entities shall have the right to enforce the provisions
of this Agreement and any of the other Loan Documents as fully as Lender,
provided that Lender shall continue to have the unimpaired right to enforce the
provisions of this Agreement and any of the other Loan Documents as to so much
of the Loan that Lender has not sold, assigned or transferred. Lender shall give
notice to Indemnitor of the name, address, telephone number and contact person
of any assignee of Lender within a reasonable period of time after the effective
date of the assignment, provided, that
failure to provide such notice shall in no way affect the validity or effect of
the assignment or Indemnitor's obligations hereunder.
(b) In
particular, Indemnitor acknowledges and agrees that Lender and its successors
and assigns may (i) sell the Loan, this Agreement and each of the other Loan
Documents to one or more investors as a whole loan in a rated or unrated public
offering or private placement, (ii) grant participation interests in the Loan,
to one or more investors in a rated or unrated public offering or private
placement, (iii) deposit this Agreement and each of the other Loan Documents
with a trust, .which trust may sell certificates to investors evidencing an
ownership in the trust assets in a rated or unrated public offering or private
placement, or (iv) otherwise sell the Loan or any interest therein to investors
in a rated or unrated public offering or private placement (the transactions
referred to in clauses (i) through (iv) are hereinafter each referred to as a
"Secondary Market
Transaction").
[SIGNATURE
APPEARS ON THE FOLLOWING PAGE]
IN
WITNESS WHEREOF, Indemnitor has executed this Indemnity and Guaranty Agreement
as of the day and year first above written.
INDEMNITOR:
BELTWAY
ASSETS HOLDINGS LLC, a Delaware limited liability company
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By:
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/s/ J. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
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J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Vice President and Chief
Executive Officer