LOAN NO. 20028003003
INDEMNITY AND GUARANTY AGREEMENT
THIS INDEMNITY AND GUARANTY AGREEMENT (this "Agreement"), made as of
February 27, 2003, by Wilshire Oil Company of Texas, a Delaware corporation
having an address of 000 Xxxxxx Xxxxxx, Xxxxxx Xxxx, Xxx Xxxxxx, 00000
("Indemnitor") in favor of Xxxxxxx Xxxxx Mortgage Lending, Inc., a Delaware
corporation, having an address at 4 World Financial Center, 000 Xxxxx Xxxxxx,
Xxx Xxxx, XX, 00000 ("Lender"). All capitalized terms used but not defined
herein shall have the meaning set forth in the Mortgage (as hereinafter
defined).
W I T N E S S E T H:
WHEREAS, concurrently herewith, Lender has extended to Van Buren,
L.L.C., a Delaware limited liability company (the "Borrower") a loan in the
original principal amount of TWO MILLION ONE HUNDRED THOUSAND DOLLARS ($
2,100,000) (the "Loan"), which is evidenced by the Note in said amount and
secured by (i) that certain Multifamily Deed of Trust, Security Agreement,
Assignment of Rents and Fixture Filing, dated the date hereof, given by Borrower
to First American Title Insurance Company, as trustee, for the benefit of
Lender, encumbering the Property commonly known as Van Buren Apartments in the
County of Pima and the State of Arizona (the "Mortgage") and (ii) the other Loan
Documents;
WHEREAS, as a condition to making the Loan to Borrower, Lender has
required that Indemnitor indemnify Lender from and against and guarantee payment
to Lender of those items for which Borrower is personally liable and for which
Lender has recourse against Borrower under the terms of the Note and the
Mortgage; and
WHEREAS, Indemnitor is an Affiliate of Borrower and will derive
substantial economic benefit from Lender making the Loan to Borrower and
therefore agrees to provide such indemnification;
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,
Indemnitor hereby covenants and agrees for the benefit of Lender, as follows:
1. Indemnity and Guaranty. Indemnitor hereby assumes liability for,
guarantees payment to Lender of, agrees to pay, protect, defend and save Lender
harmless and indemnifies Lender from and against, any and all liabilities,
obligations, losses, damages, costs and expenses (including, without limitation,
reasonable attorneys' fees, costs and disbursements), causes of action, suits,
claims, demands and judgments paid, imposed upon Lender or to which Lender may
be subject, or any reduction in amounts recovered by Lender directly or
indirectly (including, without limitation, any future reduction in sales price
of, or unmarketability and consequent inability of Lender to foreclose on or
otherwise sell, the Property and the lost opportunity costs resulting from the
inability of Lender to sell or dispose of its interest in the Property)
(collectively, "Costs") as a result of Borrower, or any Affiliate, indemnitor,
guarantor, agent or employee of Borrower:
(i) misapplying or misappropriating any proceeds of insurance
policies or condemnation awards in connection with the
Property;
(ii) misapplying (under any lease, the Mortgage or any other
agreement) or misappropriating any Rents, security
deposits or other refundable deposits paid to or held by
or on behalf of Lender;
(iii) receiving any Rent or other payments under Leases more
than one month in advance;
(iv) committing waste, arson or damage to the Property as a
result of intentional misconduct or gross negligence;
(v) removing any Equipment or other Property in violation of
the Mortgage or other Loan Documents;
(vi) committing fraud or making any material misrepresentation
in connection with the Loan or the ownership, use,
operation or management of the Property;
(vii) transferring or encumbering the Property in violation of
Article VIII of the Mortgage; or
(viii) failing to maintain the existence of Borrower as a
Special-Purpose Entity or otherwise failing to comply with
Article XII of the Mortgage.
This is a guaranty of payment and performance and not of collection.
The liability of Indemnitor under this Agreement shall be direct and immediate
and not conditional or contingent upon the pursuit of any remedies against
Borrower, any guarantor, any other Person nor against the collateral for the
Loan. If the obligations guaranteed hereby are partially paid or discharged by
reason of the exercise of any of the remedies available to Lender, Indemnitor
shall remain liable for all remaining 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.
2. Indemnification Procedures.
(a) If any action, proceeding, litigation, claim, loss,
liability or other Cost shall be brought or asserted against Lender for any
matter which Lender is indemnified hereunder (each, a "Claim"), Lender shall
notify Indemnitor in writing thereof and Indemnitor shall promptly assume the
defense thereof, including, without limitation, the employment of counsel
acceptable to Lender and the negotiation of any settlement. Any failure of
Lender to notify Indemnitor of such matter shall not impair or reduce the
obligations of Indemnitor hereunder. Lender shall have the right, at the expense
of Indemnitor (which expense shall be included in Costs), to employ separate
counsel in connection with any Claim and to participate in the defense thereof.
In the event Indemnitor shall fail to discharge or undertake to defend Lender
against any Claim, such failure shall constitute an Event of Default and Lender
may, at its sole election, defend or settle such Claim. The liability of
Indemnitor to Lender hereunder shall be conclusively established by any
settlement entered into by Lender in good faith, and such good faith shall be
conclusively established if the settlement is made on the advice of independent
legal counsel for Lender. The amount of Indemnitor's liability hereunder shall
include the settlement consideration and all other Costs, which shall be paid by
Indemnitor as hereinafter provided.
2
(b) Indemnitor shall not, without the prior written consent of
Lender, settle or compromise any Claim in any manner or consent to the entry of
any judgment (i) in which the claimant or plaintiff does not unconditionally
release Lender from all liability in respect of such Claim and obtain a
dismissal of such Claim with prejudice; or (ii) that may adversely affect Lender
(as determined by Lender) or obligate Lender to pay any sum or perform any
obligation. Any release of Lender shall be in writing and shall be in form,
scope and substance satisfactory to Lender.
(c) Indemnitor shall pay to Lender any and all Costs within
ten (10) days after written notice from Lender itemizing the amounts thereof
incurred to the date of such notice. All Costs shall be immediately reimbursable
to Lender, without any requirement of waiting for the ultimate outcome of any
Claim. Any Costs not paid within the aforementioned ten (10) day period shall
bear interest at the Default Rate from the date incurred until the date paid in
full.
3. Reinstatement of Obligations. If at any time all or any part of any
payment received by Lender pursuant to this Agreement shall be rescinded or
returned for any reason whatsoever including, without limitation, the
insolvency, bankruptcy or reorganization of Indemnitor or Borrower, then the
obligations of Indemnitor hereunder shall, to the extent of such rescinded or
returned payment, be reinstated and shall continue as though such previous
payment received by Lender had never occurred.
4. Waivers by Indemnitor. To the extent permitted by law, Indemnitor
hereby waives and agrees not to assert or take advantage of:
(a) Any right to require Lender (i) to proceed against
Borrower or any other Person, (ii) to proceed against or exhaust any security
held by Lender at any time or (iii) to pursue any other remedy in Lender's power
or under any other agreement, in any case, before proceeding against Indemnitor
hereunder;
(b) Any defense that may arise by reason of the incapacity,
lack of authority, death or disability of any other Person 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;
(c) Demand, presentment for payment, protest and notice of
protest, demand, dishonor and nonpayment and all other notices except as
expressly required in the Loan Documents including, without limitation, notice
of new or additional indebtedness or obligations 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 Agreement or
any other Loan Document;
3
(d) Any defense based upon an election of remedies, splitting
a cause of action or merger of judgments by Lender;
(e) Any right or claim of right to cause a marshaling of the
assets of Indemnitor;
(f) Any principle or provision of law, statutory or otherwise,
which is or might be in conflict with the terms and provisions of this
Agreement;
(g) Any duty on the part of Lender to disclose to Indemnitor
any facts Lender may now or hereafter know about Borrower or the Property,
regardless of whether Lender (i) has reason to believe that any such facts
materially increase the risk beyond that which Indemnitor intends to assume,
(ii) has reason to believe that such facts are unknown to Indemnitor or (iii)
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, the financial and physical
condition of the Property and all other circumstances bearing on the risk that
liability may be incurred by Indemnitor hereunder;
(h) Any invalidity, irregularity or unenforceability, in whole
or in part, of any one or more of the Loan Documents;
(i) Any lack of commercial reasonableness in dealing with the
collateral for the Loan;
(j) 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 now or hereafter liable for the payment and performance of any
obligation hereby guaranteed;
(k) Any claim that the automatic stay provided by 11 U.S.C.
ss. 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 existing or hereafter acquired,
which Lender may have against Indemnitor, the Borrower or the collateral for the
Loan;
(l) 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 Reform Act of 1978, as amended, 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;
4
(m) Any action, occurrence, event or matter consented to by
Indemnitor under Section 5(h) hereof, under any other provision hereof, or
otherwise;
(n) The benefits of any statutory or other provision limiting
the liability of a surety, including without limitation the provisions of A.R.S.
Sections 12-1641, et seq. and Rule 17(f) of the Arizona Rules of Civil
Procedure; and
(o) Any benefit of, and any right to participate in, any
security now or hereafter held by Lender, until payment and performance of all
of Indemnitor's obligations hereunder, any right of subrogation.
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 to seek a
supplemental stay or other relief, whether injunctive or otherwise, pursuant to
11 U.S.C. ss. 105 or any other provision of the Bankruptcy Reform Act of 1978,
as amended, 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.
5. General Provisions.
(a) Rules of Construction. This Agreement is governed by and
incorporates by reference the Rules of Construction set forth in Article XV of
the Mortgage, which shall have the same force and effect as if fully set forth
herein.
(b) Full Recourse. Notwithstanding any provision of any other
Loan Document to the contrary, all of the terms and provisions of this Agreement
are recourse obligations of Indemnitor and not restricted by any limitation on
personal liability.
(c) Reliance. Indemnitor acknowledges that Lender would not
make the Loan to Borrower without being able to rely upon the covenants and
obligations of Indemnitor set forth herein. Accordingly, Indemnitor
intentionally and unconditionally enters into this Agreement.
(d) Survival. To the fullest extent permitted by law, this
Agreement shall be deemed to be continuing in nature and remain in full force
and effect and survive the exercise of any remedy by Lender under the Mortgage
or any of the other Loan Documents, including, without limitation, any
foreclosure or deed in lieu thereof.
(e) Subordination; No Recourse Against Lender. Indemnitor
hereby subordinates any and all indebtedness of Borrower now or hereafter owed
to Indemnitor to all indebtedness of Borrower to Lender. 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 for 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 any other Loan Documents.
5
(f) Financial Statements. Indemnitor hereby agrees to furnish
Lender promptly upon demand by Lender current and dated financial statements
detailing the assets and liabilities of Indemnitor, certified by Indemnitor, in
form and substance acceptable to Lender. Indemnitor hereby warrants and
represents to Lender that any and all balance sheets, net worth statements and
other financial data which have been or may be given to Lender with respect to
Indemnitor did or will at the time of such delivery fairly and accurately
present the financial condition of Indemnitor.
(g) Nature of Obligations. The obligations of Indemnitor
hereunder are independent of the obligations of Borrower. In the event of any
default hereunder, a separate action or actions may be brought and prosecuted
against Indemnitor whether or not Indemnitor is the alter ego of Borrower and
whether or not Borrower is joined therein or a separate action or actions are
brought against Borrower. Lender's rights hereunder shall not be exhausted until
all of the obligations of Indemnitor hereunder have been fully paid and
performed.
(h) No Limitation on Liability. Indemnitor hereby consents and
agrees that any of the following may occur from time to time, without notice or
consideration to, or consent of, Indemnitor, and the liability of Indemnitor
hereunder shall remain unconditional and absolute and shall in no way be
impaired or limited by reason thereof:
(i) any extension of time for performance required
by any of the Loan Documents or otherwise
granted by Lender or any extension or renewal
of the Note;
(ii) any sale, assignment or foreclosure of the
Note, the Mortgage or any of the other Loan
Documents or any sale or transfer of the
Property;
(iii) any change in the composition of Borrower,
including, without limitation, the voluntary or
involuntary withdrawal or removal of Indemnitor
from any current or future position of
ownership, management or control of Borrower;
(iv) any 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
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;
6
(vi) the release or substitution in whole or in part
of any security for the Loan;
(vii) Lender's failure to record the Mortgage 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 of 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.
(i) Representations. Indemnitor represents and warrants that
there is no bankruptcy, reorganization or insolvency proceeding pending or, to
its knowledge, threatened against it.
(j) Enforcement. This Agreement is subject to enforcement at
law or in equity, including actions for damages or specific performance.
(k) Professionals' 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 hereof, Indemnitor agrees to pay to
Lender any and all costs and expenses, including, without limitation, reasonable
attorneys' and consultants' fees and disbursements, incurred by Lender as a
result thereof and all such amounts shall be included in Costs. In the event of
legal proceedings, court costs and attorneys' fees shall be set by the court and
not by jury and shall be included in any judgment obtained by Lender.
(l) Successive Actions. A separate right of action hereunder
shall arise each time Lender acquires knowledge of any matter indemnified or
guaranteed by Indemnitor hereunder. Separate and successive actions may be
brought hereunder to enforce any of the provisions hereof at any time and from
time to time and no action hereunder shall preclude any subsequent action.
[REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK]
7
IN WITNESS WHEREOF, Indemnitor has executed this Agreement as of the
day and year first above written.
Wilshire Oil Company of Texas
a Delaware corporation
__________________________________
By:
Its:
8
Acknowledgment
STATE OF ARIZONA)
)ss.
County of ______)
The foregoing instrument was acknowledged before me this _____ day of
__________, 2003, by __________________________, the ___________ of WILSHIRE OIL
COMPANY OF TEXAS, a Delaware corporation, on behalf of that corporation.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
_________________________
Notary Public
My commission expires:
________________________
9
