INDEMNIFICATION AND PLEDGE AGREEMENT
New York, New York
December 13, 1999
Reference is made to the Loan Agreement, dated as of the date hereof (the
"Credit Agreement"), between 1290 Partners, L.P. (the "Partnership") and General
Electric Capital Corporation, relating to certain premises located in New York,
New York and more commonly known as 1290 Avenue of the Americas (the "1290
Property").
Apollo Real Estate Investment Fund, L.P. ("Apollo") is the holder of
4,936,060 shares of the Common Stock, par value $10.00 per share ("Common
Stock"), of Metropolis Realty Trust, Inc. ("Metropolis"), representing
approximately 38% of the outstanding shares of Common Stock. Metropolis is the
owner of a 94.05% interest, as a limited partner, of the Partnership.
Pursuant to Section 8.1(1)(d) of the Credit Agreement, the Partnership
agreed not to permit any transfers of the Common Stock which would cause Apollo
to own less than 30% of the outstanding shares of Common Stock (the "Shares").
Apollo will derive a substantial benefit from the closing of the
transaction contemplated by the Credit Agreement.
1. Indemnity. In consideration of the agreement of the Partnership to the
provisions of Section 8.1(1)(d) of the Credit Agreement (the "Transfer
Restriction") Apollo hereby agrees to defend, indemnify, and hold harmless the
Partnership and its partners (and their respective stockholders and partners, as
the case may be) and successors and assigns (collectively, the "Indemnitees"),
from and against any and all claims, demands, penalties, causes of action,
fines, liabilities, settlements, damages (but excluding consequential and
punitive damages), costs or expenses arising out of, or in any way related to
the transfer by Apollo of any of the Shares in contravention of the Transfer
Restrictions (a "Default"). The indemnity obligations of Apollo pursuant to this
Section 1 are hereinafter referred to as the "Indemnity Obligations".
2. Pledge. As security for the payment and performance in full of the
Indemnity Obligations, Apollo hereby transfers, grants, bargains, sells,
conveys, hypothecates, pledges, sets over, endorses over, and delivers unto the
Partnership, for its own benefit and for the benefit of the other Indemnitees, a
security interest in, (a) 4,000,000 shares of Common Stock (the "Pledged
Stock"), (b) subject to Section 6 below, all proceeds of the Pledged Stock,
including, without limitation, all cash, securities or other property at any
time and from time to time receivable or otherwise distributed in respect of or
in exchange for any of or all such Pledged Stock (the items referred to in
clauses (a) and (b) being collectively called the "Collateral"). Upon delivery
to the Partnership, any securities now or hereafter included in the Collateral
including, without limitation, the Pledged Stock (the "Pledged Securities")
shall
be accompanied by undated stock powers duly executed in blank or other
instruments of transfer satisfactory to the Partnership and by such other
instruments and documents as the Partnership may reasonably request. Each
delivery of Pledged Securities shall be accompanied by a schedule showing a
description of the securities theretofore and then being pledged hereunder,
which schedule shall be attached hereto as Schedule I and made a part hereof.
Each schedule so delivered shall supersede any prior schedules so delivered.
3. Delivery of Collateral. Apollo agrees to deliver promptly or cause to
be delivered to the Partnership any and all Pledged Securities, and any and all
certificates or other instruments or documents representing any of the
Collateral (together with any necessary endorsement).
4. Representations, Warranties and Covenants. Apollo hereby represents,
warrants and covenants to and with the Partnership:
(a) except for the security interest granted to the Partnership, Apollo
(i) is and, subject to the provisions of the Credit Agreement, will at all times
continue to be the direct owner, beneficially and of record, of the Pledged
Securities that it is pledging hereunder, (ii) holds the Collateral that it is
pledging hereunder free and clear of all liens, charges, encumbrances and
security interests of every kind and nature, and the Pledged Stock is subject to
no options to purchase or any similar or other rights of any person, (iii) will
make no assignment, pledge, hypothecation or, subject to the provisions of the
Credit Agreement, transfer of, or create any security interest in, the
Collateral that it is pledging hereunder including, without limitation, by
virtue of becoming bound by any agreement which restricts in any manner the
rights of any present or future holder of any Pledged Stock with respect
thereto, and (iv) subject to Section 6 below, will cause any and all Collateral,
whether for value paid by Apollo or otherwise, to be forthwith deposited with
the Partnership and pledged or assigned hereunder;
(b) Apollo (i) has good right and legal authority to pledge the
Collateral it is pledging hereunder in the manner hereby done or contemplated,
(ii) will not amend, modify or supplement any Pledged Security without the prior
written consent of the Partnership, nor forgive any indebtedness evidenced by
any Pledged Security, and (iii) will defend its title or interest thereto or
therein against any and all attachments, liens, claims, encumbrances, security
interests or other impediments of any nature, however arising, of all persons
whomsoever;
(c) no consent or approval of any governmental body or regulatory
authority or any securities exchange was or is necessary to the validity of the
pledge effected hereby;
(d) by virtue of the execution and delivery by Apollo of this Agreement,
when the certificates, instruments or other documents representing or evidencing
the Collateral are delivered to the Partnership in accordance with this
Agreement, the Partnership will obtain a valid and perfected first lien upon and
security interest in such Collateral as security for the performance of the
Indemnity Obligations, prior to all other liens and encumbrances thereon and
security interests therein;
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(e) the pledge effected hereby is effective to vest in the Partnership
the rights of the Partnership in the Collateral as set forth herein; and
(f) all of the Pledged Stock has been duly authorized and validly issued
and as of the date hereof, the Pledged Stock constitutes approximately 30% of
the issued and outstanding shares of Common Stock.
All representations, warranties and covenants of Apollo contained in this
Agreement shall survive the execution, delivery and performance of this
Agreement until the termination of this Agreement pursuant to Section 14 hereof.
5. Registration in Nominee Name; Denominations. Upon the occurrence and
during the continuance of a Default, the Partnership shall have the right (in
its sole and absolute discretion with subsequent notice to Apollo) to transfer
to or to register the Pledged Securities in its own name or the name of its
nominee. In addition, the Partnership shall at all times have the right to
exchange the certificates representing Pledged Securities for certificates of
smaller or larger denominations for any purpose consistent with this Agreement.
6. Voting Rights; Dividends; etc. (a) Unless and until a Default
hereunder shall have occurred and be continuing:
(i) Apollo shall be entitled to exercise any and all voting and/or
consensual rights and powers accruing to an owner of Pledged Securities or any
part thereof for any purpose not inconsistent with the terms of this Agreement
and the Credit Agreement; provided that such action would not adversely affect
the rights inuring to the Partnership or the other Indemnitees under this
Agreement or the Credit Agreement or adversely affect the rights and remedies of
the Partnership or the other Indemnitees under this Agreement or the Credit
Agreement or the ability of the Partnership or the other Indemnitees to exercise
the same.
(ii) The Partnership shall execute and deliver to Apollo, or cause to
be executed and delivered to Apollo, all such proxies, powers of attorney, and
other instruments as Apollo may reasonably request for the purpose of enabling
Apollo to exercise the voting and/or consensual rights and powers which they are
entitled to exercise pursuant to subparagraph (i) above.
(iii) Apollo shall be entitled to receive and retain any and all cash
dividends paid on the Pledged Securities only to the extent that such cash
dividends are permitted by, and otherwise paid in accordance with the terms and
conditions of, the Credit Agreement and applicable laws. Any and all
a. noncash dividends,
b. stock or dividends paid or payable in cash or otherwise in
connection with a partial or total liquidation or dissolution, and
c. instruments, securities, other distributions in property,
return of capital, capital surplus or paid-in surplus or other distributions
made on or in respect of Pledged Securities (other than dividends
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permitted by this Section 6(a)(iii)), whether paid or payable in cash or
otherwise, whether resulting from a subdivision, combination or reclassification
of the outstanding capital stock of the issuer of any Pledged Securities or
received in exchange for Pledged Securities or any part thereof, or in
redemption thereof, as a result of any merger, consolidation, acquisition or
other exchange of assets to which such issuer may be a party or otherwise, shall
be and become part of the Collateral, and, if received by Apollo, shall not be
commingled by Apollo with any of its other funds or property but shall be held
separate and apart therefrom, shall be held in trust for the benefit of the
Partnership and the other Indemnitees and shall be forthwith delivered to the
Partnership in the same form as so received (with any necessary endorsement).
(b) Upon the occurrence and during the continuance of a Default, all
rights of Apollo to receive any dividends which Apollo is authorized to receive
pursuant to paragraph (a)(iii) of this Section 6 shall cease, and all such
rights shall thereupon become vested in the Partnership, which shall have the
sole and exclusive right and authority to receive and retain such dividends. All
dividends which are received by Apollo contrary to the provisions of this
Section 6(b) shall be received in trust for the benefit of the Partnership,
shall be segregated from other property or funds of Apollo and shall be
forthwith delivered to the Partnership as Collateral in the same form as so
received (with any necessary endorsement). Any and all money and other property
paid over to or received by the Partnership pursuant to the provisions of this
Section 6 shall be retained by the Partnership in an account to be established
by the Partnership upon receipt of such money or other property and shall be
applied in accordance with the provisions of Section 9 hereof.
(c) Upon the occurrence and during the continuance of a Default, all
rights of Apollo to exercise the voting and consensual rights and powers which
it is entitled to exercise pursuant to Section 6(a)(i) shall cease, and all such
rights shall thereupon become vested in the Partnership, which shall have the
sole and exclusive right and authority to exercise such voting and consensual
rights and powers.
(d) As long as the Credit Agreement remains in effect and until all of
the Indemnity Obligations have been paid fully and indefeasibly, any payments
made in respect of the Pledged Securities shall be and become part of the
Collateral, and, if received by Apollo, shall not be commingled by Apollo with
any of its other funds or property but shall be held separate and apart
therefrom, shall be held in trust for the benefit of the Partnership and the
other Indemnitees and shall be forthwith delivered to the Partnership in the
same form as so received.
7. Supplemental Documentation. In connection with the execution and
delivery of this Agreement, Apollo shall furnish or cause to be furnished to the
Partnership on or prior to the Closing Date a certificate signed by a
responsible officer of Apollo dated the Closing Date, certifying that, as of the
date of such certificate, all representations and warranties of Apollo in
Section 4 hereof are true and correct and that Apollo is in compliance with all
conditions, agreements and covenants to be observed or performed hereunder.
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8. Remedies upon Default. If a Default shall have occurred and be
continuing, the Partnership may sell or otherwise dispose of all or any part of
the Collateral, at public or private sale or at any broker's board or on any
securities exchange, for cash, upon credit or for future delivery as the
Partnership shall deem appropriate. Each such purchaser at any such sale shall
hold the property sold absolutely, free from any claim or right on the part of
Apollo, and Apollo hereby waives (to the extent permitted by law) all rights of
redemption, stay and appraisal which Apollo now has or may at any time in the
future have under any rule of law or statute now existing or hereafter enacted.
The Partnership shall give Apollo 10 days' written notice (which Apollo
agrees is reasonable notice within the meaning of Section 9-504(3) of the
Uniform Commercial Code as in effect in New York) of the Partnership's intention
to make any sale of Collateral. Such notice, in the case of a public sale, shall
state the time and place for such sale and, in the case of a sale at a broker's
board or on a securities exchange, shall state the board or exchange at which
such sale is to be made and the day on which the Collateral, or portion thereof,
will first be offered for sale at such board or exchange. Any such public sale
shall be held at such time or times within ordinary business hours and at such
place or places as the Partnership may fix and state in the notice (if any) of
such sale. At any such sale, the Collateral, or portion thereof, to be sold may
be sold in one lot as an entirety or in separate parcels, as the Partnership may
(in its sole and absolute discretion) determine. The Partnership shall not be
obligated to make any sale of any Collateral if it shall determine not to do so,
regardless of the fact that notice of sale of such Collateral shall have been
given. The Partnership may, without notice or publication, adjourn any public or
private sale or cause the same to be adjourned from time to time by announcement
at the time and place fixed for sale, and such sale may, without further
notice, be made at the time and place to which the same was so adjourned. In
case any sale of all or any part of the Collateral is made on credit or for
future delivery, the Collateral so sold may be retained by the Partnership until
the sale price is paid by the purchaser or purchasers thereof, but the
Partnership shall not incur any liability in case any such purchaser or
purchasers shall fail to take up and pay for the Collateral so sold and, in case
of any such failure, such Collateral may be sold again upon like notice. At any
public sale made pursuant to this Section 8, any Indemnitee may bid for or
purchase, free (to the extent permitted by law) from any right of redemption,
stay or appraisal on the part of Apollo (all said rights being also hereby
waived and released to the extent permitted by law), with respect to the
Collateral or any part thereof offered for sale and any such Indemnitee may make
payment on account thereof by using any claim then due and payable to such
Indemnitee from Apollo as a credit against the purchase price, and such
Indemnitee may, upon compliance with the terms of sale, hold, retain and dispose
of such property without further accountability to Apollo therefor. For purposes
hereof, a written agreement to purchase the Collateral or any portion thereof
shall be treated as a sale thereof; the Partnership shall be free to carry out
such sale and purchase pursuant to such agreement, and Apollo shall not be
entitled to the return of the Collateral or any portion thereof subject thereto,
notwithstanding the fact that after the Partnership shall have entered into such
an agreement all Defaults shall have been remedied and the Indemnity Obligations
paid in full. As an alternative to exercising the power of sale herein conferred
upon it, the Partnership may proceed by a suit or suits at law or in equity to
foreclose this
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Agreement and to sell the Collateral or any portion thereof pursuant to a
judgment or decree of a court or courts having competent jurisdiction or
pursuant to a proceeding by a court-appointed receiver.
9. Application of Proceeds of Sale. The proceeds of any sale of
Collateral, as well as any Collateral consisting of cash, shall be applied by
the Partnership as follows:
First, to the payment of all Damages incurred by the Partnership in
connection with such Default or otherwise in connection with this Agreement or
any of the Indemnity Obligations, including, but not limited to, all court costs
and the reasonable fees and expenses of such Indemnitees' agents and legal
counsel, and any other reasonable costs or expenses incurred in connection with
the exercise of any right or remedy hereunder; and
Second, pro rata to the payment in full of principal and interest in
respect of any loans outstanding under the Credit Agreement.
If the Partnership exercises its right to sell, assign, transfer or
otherwise dispose of the Collateral pursuant to Section 8 of this Agreement, the
Partnership shall cause to be returned to Apollo any proceeds received by the
Indemnitees in excess of the amount needed to satisfy the Indemnity Obligations.
10. Partnership Appointed Attorney-in-Fact. Apollo hereby appoints the
Partnership its attorney-in-fact for the purpose of carrying out the provisions
of this Agreement and taking any action and executing any instrument which the
Partnership may deem necessary or advisable to accomplish the purposes hereof,
which appointment is irrevocable and coupled with an interest. Without limiting
the generality of the foregoing, the Partnership shall have the right, upon the
occurrence and during the continuance of a Default, with full power of
substitution either in the Partnership's name or in the name of Apollo, to ask
for, demand, ▇▇▇ for, collect, receive receipt and give acquittance for any and
all moneys due or to become due and under and by virtue of any Collateral, to
endorse checks, drafts, orders and other instruments for the payment of money
payable to Apollo representing any interest or dividend, or other distribution
payable in respect of the Collateral or any part thereof or on account thereof
and to give full discharge for the same, to settle, compromise, prosecute or
defend any action, claim or proceeding with respect thereto, and to sell,
assign, endorse, pledge, transfer and make any agreement respecting, or
otherwise deal with, the same; provided, however, that nothing herein contained
shall be construed as requiring or obligating the Partnership, or the other
Indemnitees to make any commitment or to make any inquiry as to the nature or
sufficiency of any payment received by the Partnership, or the other
Indemnitees, or to present or file any claim or notice, or to take any action
with respect to the Collateral or any part thereof or the moneys due or to
become due in respect thereof or any property covered thereby, and no action
taken by the Partnership, or the other Indemnitees or omitted to be taken with
respect to the Collateral or any part thereof shall give rise to any defense,
counterclaim or offset in favor of Apollo or to any claim or action against the
Partnership or the other Indemnitees in the absence of the gross negligence or
wilful misconduct of the Partnership or the other Indemnitees.
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11. No Waiver. No failure on the part of the Partnership to exercise, and
no delay in exercising, any right, power or remedy hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right,
power or remedy by the Partnership preclude any other or further exercise
thereof or the exercise of any other right, power or remedy. All remedies
hereunder are cumulative and are not exclusive of any other remedies provided by
law. The Partnership and the other Indemnitees shall not be deemed to have
waived any rights hereunder or under any other agreement or instrument unless
such waiver shall be in writing and signed by such parties.
12. Security Interest Absolute. All rights of the Partnership hereunder,
the grant of a security interest in the Collateral and all obligations of Apollo
hereunder, shall be absolute and unconditional irrespective of (i) any lack of
validity or enforceability of the Credit Agreement, any agreement with respect
to any of the Indemnity Obligations or any other agreement or instrument
relating to any of the foregoing, (ii) any change in time, manner or place of
payment of, or in any other term of, all or any of the Indemnity Obligations, or
any other amendment or waiver of or any consent to any departure from the Credit
Agreement or any other agreement or instrument, (iii) any exchange, release or
nonperfection of any other collateral, or any release or amendment or waiver of
or consent to or departure from any guarantee, for all or any of the Indemnity
Obligations or (iv) any other circumstance which might otherwise constitute a
defense available to, or a discharge of, Apollo in respect of the Indemnity
Obligations or in respect of this Agreement.
13. Partnership's Fees and Expenses. Apollo shall be obligated to, upon
demand, pay to the Partnership the amount of any and all reasonable expenses,
including the reasonable fees and expenses of its counsel and of any experts or
Partnerships which the Partnership may incur in connection with (i) the
administration of this Agreement, (ii) the custody or preservation of, or the
sale of, collection from, or other realization upon, any of the Collateral,
(iii) the exercise or enforcement of any of the rights of the Partnership
hereunder or (iv) the failure by Apollo to perform or observe any of the
provisions hereof.
14. Termination. This Agreement shall terminate when (a) all the
Indemnity Obligations have been fully and indefeasibly paid in cash and (b) all
obligations under the Credit Agreement shall have been paid and discharged in
full at which time the Partnership shall reassign and deliver to Apollo, or to
such person or persons as Apollo shall designate, against receipt, such of the
Collateral (if any) as shall not have been sold or otherwise still be held by it
hereunder, together with appropriate instruments of reassignment and release.
15. Notices. All notices and other communications hereunder shall be
sufficiently given for all purposes hereunder if in writing and delivered
personally, sent by documented overnight delivery service or, to the extent
receipt is confirmed, telecopy, telefax or other electronic transmission service
to the appropriate address or number as set forth below. Notices to the
Partnership shall be addressed to:
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1290 Partners, L.P.
c/o ▇▇▇▇▇▇ Capital Group
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Battle ▇▇▇▇▇▇ LLP
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
or at such other address and to the attention of such other
person as the Partnership may designate by written notice to Apollo and
Metropolis. Notices to Apollo shall be addressed to:
Apollo Real Estate Investment Fund, L.P.
▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
or at such other address and to the attention of such other
person as the Buyer may designate by written notice to Partnership and
Metropolis. Notices to the Partnership shall be addressed to:
Metropolis Realty Trust, Inc.
c/o ▇▇▇▇▇▇ Capital Group
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Battle ▇▇▇▇▇▇ LLP
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
or at such other address and to the attention of such other
person as Metropolis may designate by written notice to Apollo and the
Partnership.
16. Further Assurances. Apollo agrees to do such further acts
and things, and to execute and deliver such additional conveyances, assignments,
agreements and instruments, as the Partnership may at any time reasonably
request in connection with the administration and enforcement of this Agreement
or with respect to the Collateral or any part thereof or in order better to
assure and confirm unto the Partnership its rights and remedies hereunder.
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17. Binding Agreement; Assignments. This Agreement, and the terms,
covenants and conditions hereof, shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and assigns, except that
Apollo shall not be permitted to assign this Agreement or any interest herein or
in the Collateral, or any part thereof, or otherwise pledge, encumber or grant
any option with respect to the Collateral, or any part thereof, or any cash or
property held by the Partnership as Collateral under this Agreement.
18. GOVERNING LAW; WAIVER OF JURY TRIAL. THIS AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
(WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF), EXCEPT AS REQUIRED BY
MANDATORY PROVISIONS OF LAW AND EXCEPT TO THE EXTENT THAT THE VALIDITY OR
PERFECTION OF THE SECURITY INTEREST HEREUNDER, OR REMEDIES HEREUNDER, IN RESPECT
OF ANY PARTICULAR COLLATERAL ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER
THAN THE STATE OF NEW YORK.
APOLLO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, AND THE INDEMNITEES
BY THEIR ACCEPTANCE OF THIS INDEMNIFICATION AGREEMENT IRREVOCABLY AND
UNCONDITIONALLY WAIVE, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, CASE,
PROCEEDING, SUIT OR COUNTERCLAIM ARISING IN CONNECTION WITH, OUT OF OR OTHERWISE
RELATING TO THIS INDEMNIFICATION AGREEMENT.
Apollo agrees that, with or without notice or demand, Apollo will
reimburse the Indemnitees for all costs and expenses (including, without
limitation, reasonable attorneys' fees) incurred by the Indemnitees in
connection with any action, case or proceeding brought by any of the Indemnitees
to enforce the obligations of Apollo under this Indemnification Agreement.
19. Severability. In case any one or more of the provisions contained in
this Agreement should be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired.
20. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original, but all of which, when
taken together, shall constitute but one instrument. This Agreement shall be
effective upon the date first set forth above.
21. Section Headings. Section headings used herein are for convenience
only and are not to affect the construction of, or be taken into consideration
in interpreting, this Agreement.
22. Amendments. This Agreement may only be modified, amended, changed or
terminated by an agreement in writing signed by Apollo and the other
Indemnitees.
Apollo agrees to submit to personal jurisdiction in the State of New York
in any action, case or proceeding arising out of this Agreement and, in
furtherance of such agreement, Apollo hereby agrees and consents that without
limiting other methods of obtaining jurisdiction, personal jurisdiction over
Apollo in any such action, case or proceeding may be obtained within or without
the jurisdiction of any court located in New York and that any process or notice
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of motion or other application to any such court in connection with any such
action, case or proceeding may be served upon Apollo by registered or certified
mail to or by personal service at the last known address of Apollo, whether such
address be within or without the jurisdiction of any such court.
Apollo represents and warrants to and for the benefit of each
Indemnitee that it has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware, that the
execution and delivery by it of this Agreement and the performance by it of its
obligations hereunder have been duly authorized by all necessary action by and
on its behalf, that this Agreement has been duly executed and delivered by a
duly authorized officer and that this Agreement constitutes a valid and legally
binding obligation enforceable against it in accordance with the terms set forth
herein.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
the day and year first above set forth.
APOLLO REAL ESTATE INVESTMENT FUND, L.P.
By: Apollo Real Estate Advisors, L.P.
By: Apollo Real Estate Management
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
1290 PARTNERS, L.P.
By: 1290 GP Corp., its general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
ACKNOWLEDGED AND AGREED:
METROPOLIS REALTY TRUST, INC.
By:/s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
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