EXHIBIT 10-V
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(C-XIII)
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT dated as of the 10 day of October
1996, given by PROPERTY PARTNERS, L.P., CARLYLE - XIII ASSOCIATES, L.P.,
and CARLYLE - XIV ASSOCIATES, L.P., each a Delaware limited partnership
having an office at 000 Xxxxx Xxxxxxxx Xxxxxx - 19th floor, Xxxxxxx,
Xxxxxxxx 00000 (hereinafter individually referred to as an "Indemnitor" and
collectively as the "Indemnitors") to METROPOLIS REALTY TRUST, INC., a
Maryland corporation having an office c/o Xxxxxx Capital Group, L.P., 000
Xxxxx Xxxxxx - 12th Floor, New York, New York 10022, Attn: Xxxx Xxxxx
(hereinafter referred to as "Indemnitee").
WITNESSETH:
WHEREAS, each Indemnitor is a partner in JMB/NYC Office Building
Associates, L.P. ("JMB LP"), an Illinois limited partnership and a member
of 000 Xxxx Xxxxxx Associates, LLC and 1290 Associates, LLC (collectively,
the "Debtors"), each a New York limited liability company and the obligors
under certain notes in the aggregate original principal amount of
$970,000,000 issued pursuant to that certain Mortgage Spreader and
Consolidation Agreement and Trust Indenture dated as of March 20, 1984
among O&Y Equity Corp., Olympia & Holdings Corporation, FAME Associates,
Olympia & York 2 Broadway Land Company, Olympia & York 2 Broadway Company
and Manufacturers Hanover Trust Company as Trustee, as supplemented and
(the "Indenture"), which encumbers the fee estates of the Debtors in
properties known as 000 Xxxx Xxxxxx and 1290 Avenue of the Americas;
WHEREAS, the Debtors defaulted under the Indenture beyond the
expiration of all applicable notice and cure periods;
WHEREAS, the Debtors, JMB LP and Indemnitors requested that the
Trustee and the holders of the Existing Notes forbear from exercising their
rights to pursue an action to foreclose the Indenture in order to provide
the Debtors with an opportunity to file a pre - negotiated plan of
reorganization (hereinafter referred to as the "Plan") under the Bankruptcy
Code, which Plan provides for, among other things, (i) a transfer of the
Properties to the Property Owning Partnerships, (ii) the Lower Tier
Partnership to own a 99% interest as a limited partner in each of the
Property Owning Partnerships, (iii) the Upper Tier Partnership to own a 5%
interest as a limited partner in the Lower Tier Partnership, and (iv) JMB
LP to own a 99% interest as a limited partner in the Upper Tier
Partnership;
WHEREAS, the Trustee and the holders of the Existing Notes were
willing to forbear from exercising their rights to pursue an action to
foreclose the Indenture and to proceed with the transactions contemplated
by the Plan only if the Indemnitors execute and deliver this
Indemnification Agreement to the Indemnitee and the Plan and the Agreements
of Limited Partnership of the Upper Tier Partnership and the Lower Tier
Partnership require that JMB LP cause the Indemnitors to execute and
deliver this Indemnity Agreement to the Indemnitee;
WHEREAS, the Plan was filed with the Bankruptcy Court on April 23,
1996 and became effective pursuant to an order of the Bankruptcy Court
entered on September 20, 1996 and, pursuant to the terms thereof;
WHEREAS, the Indemnitors will materially benefit from the
consummation of the transactions provided for in the Plan and described
above;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt of which is hereby acknowledged, and in
order to induce the Trustee and the holders of the Existing Notes to
forbear from exercising their rights as hereinbefore stated and such
parties and the Indemnitee to proceed with the transactions contemplated by
the Plan, the Indemnitors hereby covenant and agree with the Indemnitee as
follows:
1. Capitalized terms used but not defined herein shall have the
meanings provided in the Plan.
2. The Indemnitors absolutely and unconditionally agree to indemnify
and to hold Indemnitee harmless from and against any and all losses,
claims, liabilities, damages, costs or expenses (including, without
limitation, reasonable counsel fees) of any nature whatsoever, contingent
or otherwise, foreseen or unforeseen, which Indemnitee may or shall incur
as a result of any of JMB LP, its officers, directors, partners (including
without limitation any Indemnitor), stockholders, agents or affiliates
(collectively, the "Controlled Entities") intentionally interfering with,
impeding or preventing (including, without limitation, the filing by JMB LP
of a voluntary petition under the Bankruptcy Code or any other federal or
state bankruptcy or insolvency statute or any Controlled Entity joining in
an involuntary petition against JMB LP under the Bankruptcy Code or such
other statute) (x) the exercise by the Indemnitee of the Purchase Right (as
defined in Section 12.2A of the Lower Tier Partnership Agreement) or (y)
any disposition, mortgage, pledge, encumbrance, hypothecation or exchange
of the Properties by the Property Owning Partnerships or the Property
Owning Partnership Interests (as defined in Lower Tier Partnership
Agreement) by the Lower Tier Partnership or the merger or other combination
of the Property Owning Partnerships or the Lower Tier Partnership with or
into another entity, in accordance with the terms of the Lower Tier
Partnership Agreement, provided that such disposition, mortgage, pledge,
encumbrance, hypothecation, exchange, merger or other combination does not
constitute an Adverse Transaction as defined in the agreement of limited
partnership of the Lower Tier Partnership ("Prohibited Actions"), and
provided that any such Prohibited Action is not revoked or rescinded within
the time period provided in paragraph 3 below.
3. In the event that any Indemnitor or Controlled Entity takes any
Prohibited Action (including, without limitation, the filing by or against
JMB LP of a petition under the Bankruptcy Code or any other federal or
state bankruptcy or insolvency statute), the Indemnitors (x) acknowledge
(and Indemnitee, by its acceptance of this Indemnification Agreement,
acknowledges) that the damage to be suffered by Indemnitee shall be
difficult or impossible to ascertain and (y) if the Prohibited Action is
not revoked or rescinded within sixty (60) days after notice by Indemnitee
to Indemnitors so as to permit the consummation of the transaction
described in clause (x) or (y) of paragraph 2 above unimpeded by any
actions by JMB LP or any of the Controlled Entities, absolutely and
unconditionally agree to pay to Indemnitee upon demand the Maximum
Indemnitors' Liability Amount (as hereinafter defined) as full liquidated
damages for, and in satisfaction of, the undersigned's obligations under
this Indemnification Agreement, including but not limited to the
Indemnitors' obligations under paragraph 2 hereof. The Indemnitor
acknowledges and agrees that (and Indemnitee, by its acceptance of this
Indemnification Agreement, acknowledges and agrees that) the payment of the
Maximum Indemnitors' Liability Amount is a fair and reasonable remedy for
Indemnitee if any of the events set forth in paragraph 2 of this
Indemnification Agreement shall occur, as any such event will result in
Indemnitee incurring damages which cannot now be determined with any degree
of certainty. The foregoing shall not limit the remedies Indemnitee may
have against any other party, including without limitation, JMB LP and the
right of the Indemnitors to seek injunctive relief with respect to the
Prohibited Action or specific performance of the underlying obligation.
4. The term "Maximum Indemnitors' Liability Amount" as used in this
Indemnification Agreement shall mean an amount equal to $25,000,000,
provided that the Maximum Indemnitors' Liability Amount shall be reduced on
a dollar for dollar basis for each dollar actually received by Indemnitee
in respect of the JMB Collateral (as defined in the Lower Tier Partnership
Agreement).
5. The Indemnitors hereby consent that from time to time, before or
after the taking of any Prohibited Action by any Indemnitor or Controlled
Party, with or without further notice to or assent from the Indemnitors,
any security at any time held by or available to Indemnitee with respect to
any obligation of JMB LP, or any security at any time held by or available
to Indemnitee for any obligation of any other person or party secondarily
or otherwise responsible for the compliance by JMB LP of its obligations
under the Upper Tier and Lower Tier Partnership Agreements (hereinafter
referred to as the "Obligations"), may be exchanged, surrendered or
released and any obligation JMB LP, or of any such other person or party,
may be changed, altered, renewed, extended, continued, surrendered,
compromised, waived or released in whole or in part, or any default with
respect thereto waived, and Indemnitee may release, in whole or in part,
the JMB Collateral or any balance of any deposit account or credit on its
books in favor of JMB LP, or of any such other person or party, and may
generally deal with JMB LP or any such security or other person or party as
Indemnitee may see fit; and the Indemnitors shall remain bound under this
Indemnification Agreement notwithstanding any such exchange, surrender,
release, change, alteration, renewal, extension, continuance, compromise,
waiver, inaction or other dealing.
6. This is an agreement to pay liquidated damages and not an
agreement of collection and Indemnitor further waives any right to require
that any action be brought against JMB LP or any other person or party or
to require that resort be had to any security or to any balance of any
deposit account or credit on the books of Indemnitee in favor of JMB LP or
any other person or party.
7. Each reference herein to Indemnitee shall be deemed to include
its successors and assigns in whose favor the provisions of this
Indemnification Agreement shall also inure. This Indemnification Agreement
shall be binding upon, and shall inure to the benefit of, Indemnitee and
each Indemnitor and the respective heirs, executors, administrators, legal
representatives, successors and assigns of Indemnitee and each Indemnitor;
provided, however, that the Indemnitors shall in no event or under any
circumstance have the right without obtaining the prior written consent of
Indemnitee to assign or transfer the Indemnitors' obligations and
liabilities under this Indemnification Agreement, in whole or in part, to
any other person, party or entity.
8. The term "Indemnitor" as used herein shall, if this
Indemnification Agreement is signed by more than one party, mean the
"Indemnitors and each of them" and each undertaking herein contained shall
be their joint and several undertaking, provided, however, that in the next
succeeding paragraph hereof the term "Indemnitor" shall mean the
"Indemnitors or any of them".
9. No delay on the part of Indemnitee in exercising any right or
remedy under this Indemnification Agreement or failure to exercise the same
shall operate as a waiver in whole or in part of any such right or remedy.
No notice to or demand on the Indemnitor shall be deemed to be a waiver of
the obligation of the Indemnitor or of the right of Indemnitee to take
further action without notice or demand as provided in this Indemnification
Agreement.
10. This Indemnification Agreement may only be modified, amended,
changed or terminated by an agreement in writing signed by Indemnitee and
the Indemnitors. No waiver of any term, covenant or provision of this
Indemnification Agreement shall be effective unless given in writing by
Indemnitee and if so given by Indemnitee shall only be effective in the
specific instance in which given.
11. The indemnitors acknowledge that this Indemnification Agreement
and the Indemnitors' obligations under this Indemnification Agreement are
and shall at all times continue to be absolute and unconditional in all
respects. This Indemnification Agreement sets forth the entire agreement
and understanding of Indemnitee and the Indemnitors, and, except as
otherwise herein set forth, the Indemnitors absolutely, unconditionally and
irrevocably waive any and all right to assert any offset, counterclaim or
crossclaim of any nature whatsoever with respect to this Indemnification
Agreement or the obligations of the Indemnitors under this Indemnification
Agreement or the obligations of any other person or party (including,
without limitation, JMB LP) relating to this Indemnification Agreement or
the obligations of the Indemnitors hereunder in any action or proceeding
brought by Indemnitee to enforce the obligations of the Indemnitors under
this Indemnification Agreement. Nothing contained in this paragraph 11
shall limit the right of the Indemnitors to assert a defense or maintain a
separate action against Indemnitee with respect to any matter irrespective
of whether it relates to this Indemnification Agreement or the obligations
of the Indemnitors under this Indemnification Agreement. The Indemnitors
acknowledge and Indemnitee, by its acceptance hereof, acknowledges that no
oral or other agreements, understandings, representations or warranties
exist with respect to this Indemnification Agreement or with respect to the
obligations of the Indemnitors under this Indemnification Agreement except
as specifically set forth in this Indemnification Agreement or otherwise in
writing by Indemnitee and the Indemnitors.
12. THE INDEMNITORS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE,
AND INDEMNITEE BY ITS ACCEPTANCE OF THIS INDEMNIFICATION AGREEMENT
IRREVOCABLY AND UNCONDITIONALLY WAIVES, ANY AND ALL RIGHT TO TRIAL BY JURY
IN ANY ACTION SUIT OR COUNTERCLAIM ARISING IN CONNECTION WITH, OUT OF OR
OTHERWISE RELATING TO THIS INDEMNIFICATION AGREEMENT.
13. If at any time (i) any payment, or portion thereof, made by, or
for the account of, the Indemnitors on account of the obligations under
this Indemnification Agreement, or (ii) any transaction described in clause
(x) or (y) of paragraph 2 hereof, or (iii) the consummation of the transfer
of the interest of JMB LP in the Upper Tier Partnership pursuant to the JMB
Put Right under Section 7.7 of the partnership agreement of the Upper Tier
Partnership or of the interest of the Upper Tier Partnership in the Lower
Tier Partnership pursuant to the Put Right under Section 12.2C of the
partnership agreement of the Lower Tier Partnership, is set aside by any
court or trustee having jurisdiction as a voidable preference, fraudulent
transfer or otherwise as being subject to avoidance or recovery under the
provisions of the Bankruptcy Code or under any other applicable Federal or
state bankruptcy law or similar law, the Indemnitor hereby agrees that this
Indemnification Agreement (x) shall continue and remain in full force and
effect, or (y) if previously terminated as a result of the Indemnitors
having fulfilled its obligations hereunder in full or as a result of
Indemnitee having released the Indemnitors from their obligations and
liabilities hereunder, shall without further act or instrument be
reinstated and shall thereafter remain in full force and effect, in either
case with the same force and effect as though such payment or transaction
had not been made, and if applicable, as if such previous termination had
not occurred.
14. The Indemnitor hereby waives all defenses it may have based upon
any election of remedies by Indemnitee which destroys or impairs the
Indemnitors' subrogation rights or the Indemnitors' right to proceed
against JMB LP or any other person for reimbursement. The foregoing
waivers include any requirement of law that Indemnitee exhaust any security
for the Obligations before proceeding under this Indemnification Agreement.
In addition to the foregoing, the Indemnitors hereby waive and relinquish
the following rights and remedies accorded by applicable law to
Indenmnitors and agree not to assert or take advantage of any such rights
or remedies: (a) any defense that may arise by reason of the incapacity,
lack of authority, death or disability of any other person or persons; (b)
demand, protest and, except as set forth therein, notice of any kind; (c)
any defense based upon any statute or rule of law which provides that the
obligation of a surety must be neither larger in amount nor in other
respects more burdensome than that of the principal; and (d) any duty on
the part of Indemnitee to disclose to the Indemnitors any facts Indemnitee
may now or hereafter know about JMB LP, regardless of whether Indemnitee
has reason to believe that any such facts materially increase the risk
beyond that which the Indemnitor intends to assume or has reason to believe
that such facts are unknown to Indemnitors or has a reasonable opportunity
to communicate such facts to Indemnitors.
15. Any notice, request or demand given or made under this
Indemnification Agreement shall be in writing and shall be hand delivered
or sent by Federal Express or other reputable overnight national courier
service, and shall be deemed given when received at the following address
whether hand delivered or sent by Federal Express or other reputable
overnight national courier service:
If to Indemnitee:
c/o Xxxxxx Capital Group, L.P.
000 Xxxxx Xxxxxx - 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxx
With a copy to:
Battle Xxxxxx LLP
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxxx
If to the Indemnitors:
000 Xxxxx Xxxxxxxx Xxxxxx - 00xx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Xxxx Xxxxxxx
With a copy to:
Pircher, Xxxxxxx & Xxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxx Xxxxxxx
Each party to this Indemnification Agreement may designate a change of
address
by notice given to the other party fifteen (15) days prior to the date such
change of address is to become effective.
16. This Indemnification Agreement is, and shall be deemed to be,
a contract entered into under and pursuant to the laws of the State of New
York and shall be in all respects governed, construed, applied and enforced
in
accordance with the laws of the State of New York. No defense given or
allowed by laws of any other state or country shall be interposed in any
action or proceeding hereon unless such defense is also given or allowed by
the laws of the State of New York.
17. The Indemnitor agrees to submit to personal jurisdiction in the
State of New York in any action or proceeding arising out of this
Indemnification Agreement and, furtherance of such agreement, the
Indemnitor hereby agrees and consents that without limiting other methods
of obtaining jurisdiction, personal jurisdiction over the Indemnitor in any
such action or proceeding may be obtained within or without the
jurisdiction of any federal court located in New York (and any such court
shall have jurisdiction over the subject matter hereof) and tat any process
or notice of motion or other application to any such court in connection
with any such action or proceeding may be served upon the Indemnitor, by
registered or certified mail to or by personal service at the last known
address of the Indemnitor, whether such address be within or without the
jurisdiction of any such court. In addition to and in furtherance of the
foregoing, the foregoing, the Indemnitor hereby consents to venue being
held in either of the Southern District of New York.
18. This Indemnification Agreement may be executed in one or more
counterparts by some or all of the parties hereto, each of which
counterparts shall be an original and all of which together shall
constitute a single indemnification agreement. The failure of any party
listed below to execute this Indemnification Agreement, or any counterpart
hereof, shall not relieve the other signatories from their obligations
hereunder.
19. Except as set forth in paragraph 13 of this Indemnification
Agreement, the obligations and liabilities of the Indemnitors under this
Indemnification Agreement shall terminate on the earlier to occur of (i)
the date upon which the transactions described in clause (x) of paragraph 2
hereof have been consummated, (ii) the date upon which the Properties have
been sold or transferred by the Property Owning Partnerships or the
Property Owning Partnership Interests have been sold or transferred by the
Lower Tier Partnership in accordance with the provisions of the Lower Tier
Partnership Agreement, or (iii) the date upon which the interest of JMB LP
in the Upper Tier Partnership or of the Upper Tier Partnership in the Lower
Tier Partnership has been transferred pursuant to the JMB Put Right under
Section 7.7 of the partnership agreement of the Upper Tier Partnership or
the Put Right under Section 12.2C of the partnership agreement of the Lower
Tier Partnership.
20. If any term, covenant, condition or provision of this
Indemnification Agreement or the application thereof to any circumstance or
to the Indemnitors shall be invalid or unenforceable to any extent, the
remaining terms, covenants, conditions and provisions of this
Indemnification Agreement shall not be effected thereby and shall remain
valid and enforceable to the fullest extent permitted by law.
21. Notwithstanding any provision in this Indemnification Agreement,
no present or future partner, officer, director or shareholder of the
Indemnitors shall have any personal liability under this Indemnification
Agreement, provided, however, that the foregoing shall not limit or impair
any rights of Indemnitee (i) to enforce this Indemnification Agreement
against the Indemnitors and any assets of the Indemnitors, (ii) to seek and
enforce other equitable relief against the Indemnitors or against any such
partner, officer, director or shareholder, or (iii) to initiate proceedings
at law or in equity for the purpose of determining any rights of the
Indemnitee hereunder, so long as, in each such case, the same cannot result
in in personal liability of any present or future partner, officer,
director or shareholder of Indemnitors.
IN WITNESS WHEREOF, the Indemnitors have duly executed this
Indemnification Agreement the day and year first above set forth.
PROPERTY PARTNERS, L.P.
By: CARLYLE INVESTORS, INC.
as its general partner
By: ____________________
Name: Xxxxxx X. Xxxxxx
Title: President
CARLYLE - XIII ASSOCIATES, L.P.
By: CARLYLE INVESTORS, INC.
as its general partner
By: ______________________________
Name: Xxxxxx X. Xxxxxx
Title: President
CARLYLE - XIV ASSOCIATES, L.P.
By: CARLYLE INVESTORS, INC.
as its general partner
By: ______________________________
Name: Xxxxxx X. Xxxxxx
Title: President
