INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (the "Agreement"), dated this 25th day of
March, 1998, among ▇▇▇▇-▇▇▇▇ Realty Corporation, a Maryland corporation,
▇▇▇▇-▇▇▇▇ Realty, L.P., a Delaware limited partnership (collectively,
"▇▇▇▇-▇▇▇▇"), Apollo Real Estate Investment Fund II, L.P., a Delaware limited
partnership ("Apollo"), Pacifica Holding Company, a Colorado limited liability
company ("Pacifica LLC") and Pacifica Holding Company, a Colorado corporation
("Pacifica"; and, together with Apollo and Pacifica LLC, collectively, the
"Indemnitors"). Unless otherwise defined herein, capitalized terms contained
herein shall have the meanings set forth in the Contribution and Exchange
Agreements (as defined below).
W I T N E S S E T H:
WHEREAS, as set forth on Schedule I hereof, ▇▇▇▇-▇▇▇▇, the Indemnitors,
et. al., have entered into the Contribution and Exchange Agreements set forth on
Schedule I hereof, dated as of March 25, 1998 and the other documents and
instruments executed and delivered in connection therewith including, without
limitation, the Assignment and Assumption of Leases, the Omnibus Assignment of
Interests, and the Asset Purchase Agreement (such Contribution and Exchange
Agreements, together with such other documents and instruments, are hereinafter
collectively called the "Contribution and Exchange Agreements") pursuant to
which, among other things, ▇▇▇▇-▇▇▇▇, the Indemnitors and the other Contributors
listed therein agreed to contribute and exchange certain entity interests
("Contributed Interests") and real property identified therein (the
"Transaction");
WHEREAS, pursuant to Section 5.3 of the Contribution and Exchange
Agreements, the Indemnitors have agreed to indemnify ▇▇▇▇-▇▇▇▇ with respect to
certain claims that may arise as a result of the Transaction;
NOW, THEREFORE, for ten dollars ($10.00) the premises contained herein and
other good and valuable consideration, the receipt and sufficiency of which are
hereby conclusively acknowledged, the parties hereto, intending to be legally
bound, mutually agree as follows:
1. Agreement to Indemnify. From and after the Closing, and subject to the
terms and conditions of this Agreement, the Indemnitors jointly and severally
covenant and agree to indemnify, defend and hold harmless ▇▇▇▇-▇▇▇▇, and any
other Person controlling, controlled by or under common control with ▇▇▇▇-▇▇▇▇,
including any officer, director, stockholder, partner, member, employee, agent
or representative of any of them (a "▇▇▇▇-▇▇▇▇ Affiliate"), from and against all
claims, judgments, assessments, losses, damages, liabilities, costs and
expenses, including without limitation interest, penalties and reasonable fees
and expenses of legal counsel chosen by ▇▇▇▇-▇▇▇▇ or a ▇▇▇▇-▇▇▇▇ Affiliate
(collectively, "Damages"), imposed upon or incurred by ▇▇▇▇- ▇▇▇▇, or any
▇▇▇▇-▇▇▇▇ Affiliate arising out of or in connection with or resulting from any
and all
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claims or threatened claims (collectively, "Claims") relating to the following:
(i) the fairness, appropriateness, authority and legal sufficiency of the
allocation of the Exchange Consideration and the Units amongst the Contributors
and their partners under the Contribution and Exchange Agreements, which
allocation has been determined by the Indemnitors and the Contributors in their
sole discretion immediately preceding the Closing; (ii) the distribution or
allocation of any of the Units, and/or cash received by any Contributor at the
Closing or to such entity's partners, shareholders, members, beneficiaries or
other individuals or entities having a legal or beneficial ownership interest in
such entity and/or the appropriateness or legal sufficiency of any such
distribution or allocation; (iii) with regard to any Property conveyed to
▇▇▇▇-▇▇▇▇ by assignment of Contributed Interests, any failure to convey to
▇▇▇▇-▇▇▇▇ one hundred percent (100%) of the Contributed entities comprised of
such Contributed Interests; (iv) with regard to any Property conveyed to
▇▇▇▇-▇▇▇▇, any failure to obtain any necessary partner or member consent to such
transfer and/or assignment; (v) any breach of the representations and warranties
of the Contributors, Apollo and other Property owners set forth in the
Contribution and Exchange Agreements to the extent they would be liable for such
breach under said agreements; and/or (vi) with respect to the Contributed
Interests and/or the Property, any direct or indirect indebtedness, liability,
claim or loss that accrued prior to Closing, to the extent Contributors would be
liable for the same under the Contribution and Exchange Agreements, whether
known or unknown, fixed or unfixed, ▇▇▇▇▇▇ or inchoate, liquidated or
unliquidated, secured or unsecured, accrued, absolute, contingent or otherwise,
whether or not of a kind required by GAAP to be set forth on the Property
Financials or in the notes thereto, including, without limitation, indebtedness
for borrowed money (collectively, "Liabilities"), unless such Liabilities were
fully and accurately reflected on a schedule to the Contribution and Exchange
Agreements and/or the Property Financials and expressly approved by ▇▇▇▇-▇▇▇▇.
2. Survival. Notwithstanding anything to the contrary contained in the
Contribution and Exchange Agreements, the provisions of this Agreement shall
survive until such time as any applicable statute of limitation for any such
Claims have expired. This Agreement shall be independent of, and in addition to,
the provisions relating to indemnification contained in the Contribution and
Exchange Agreements. The indemnification obligations set forth in this Agreement
shall be absolute and unconditional.
The liability of the Indemnitors hereunder shall in no way be affected by
(a) the release or discharge of the Indemnitors in any creditors' receivership,
bankruptcy or other similar proceedings, or (b) the impairment or modification
of the liability of any of the Indemnitors or their respective estates in
bankruptcy from the operation of any present or future provision of Title 11 of
the United States Code or any other statute or from the action of any court
having jurisdiction over any of the Indemnitors or their respective estates.
Each of the Indemnitors waives any right or claim of right to cause a
marshaling of the respective assets of Indemnitors before ▇▇▇▇-▇▇▇▇ may proceed
against any of the Indemnitors or to cause ▇▇▇▇-▇▇▇▇ to proceed in any
particular order against the Indemnitors.
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3. General Procedures. The provisions of Section 1 are expressly subject
to the following: ▇▇▇▇-▇▇▇▇ shall give notice to the Indemnitors with reasonable
promptness upon becoming aware of the Claims or other facts upon which a claim
for indemnification will be based (provided, however, no delay by ▇▇▇▇-▇▇▇▇ in
exercising any of its rights or remedies under this Agreement shall operate as a
waiver of any such right, power or privilege, except to the extent such delay
materially prejudices the Contributor's ability to successfully defend the
matter giving rise to the indemnification Claims); the notice shall set forth
such information with respect thereto as is then reasonably available to
▇▇▇▇-▇▇▇▇. The Indemnitors shall have the right to undertake the defense of any
such Claims asserted by a third party with counsel reasonably satisfactory to
▇▇▇▇-▇▇▇▇ and ▇▇▇▇-▇▇▇▇ shall cooperate at the Indemnitors' reasonable expense
in such defense and make available all records and materials reasonably
requested by the Indemnitors in connection therewith. In any event, ▇▇▇▇-▇▇▇▇
shall be entitled to participate in such defense, but shall not be entitled to
indemnification with respect to the costs and expenses of such defense if the
Indemnitors shall have diligently assumed the defense of the Claims; provided,
that, if in the opinion of counsel to ▇▇▇▇- ▇▇▇▇, the use of the same counsel to
represent the Indemnitors and ▇▇▇▇-▇▇▇▇ would present a conflict of interest,
▇▇▇▇-▇▇▇▇ may employ its own counsel at the Indemnitors' expense. In the event
the Indemnitors decide not to or do not promptly undertake the defense of any
such Claims, ▇▇▇▇- ▇▇▇▇ shall be entitled to indemnification with respect to all
reasonable costs and expenses of such defense (including reasonable attorneys'
fees, costs and expenses). Any Claims to which the Indemnitors have undertaken
to defend under this Section 3 shall not, without the written consent of
▇▇▇▇-▇▇▇▇, be settled or compromised nor shall any consent to entry of money
judgment be agreed to; provided, however, and notwithstanding anything to the
contrary contained in this Agreement, the Indemnitors may settle any Claims
without the consent of ▇▇▇▇-▇▇▇▇, but only if such settlement (a) requires only
the payment of monetary damages that are paid in full by the Indemnitors, and
(b) includes as an unconditional term thereof, the release by the claimant or
the plaintiff of ▇▇▇▇-▇▇▇▇ from all liability arising from the events which
allegedly gave rise to such Claims. The Indemnitors shall not be liable for any
Claims settled by ▇▇▇▇-▇▇▇▇ without their written consent (for purposes of this
Agreement, the consent of any of the Indemnitors shall be deemed to be the
consent of all of the Indemnitors).
4. Remedies Cumulative. Except as otherwise provided herein, the remedies
provided herein shall be cumulative and shall not preclude the assertion by any
party hereto of any other rights or the seeking of any other remedies against
any other party hereto.
1. Notices: All notices, demands, requests, or other writings in this
Agreement provided to be given or made or sent, or which may be given or made or
sent, by either party hereto to the other, shall be in writing and shall be
delivered by depositing the same with any nationally recognized overnight
delivery service, or by telecopy or fax machine, in either event with all
transmittal fees prepaid, properly addressed, and sent to the following
addresses:
If to ▇▇▇▇-▇▇▇▇: c/o ▇▇▇▇-▇▇▇▇ Realty Corporation
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
(▇▇▇) ▇▇▇-▇▇▇▇ (tele.)
(▇▇▇) ▇▇▇-▇▇▇▇ (fax)
with a copy to: Pryor, Cashman, ▇▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
(▇▇▇) ▇▇▇-▇▇▇▇ (tele.)
(▇▇▇) ▇▇▇-▇▇▇▇ (fax)
If to the Indemnitors: Pacifica Holding Company, LLC
▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Mr. ▇▇▇▇▇ ▇▇▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ (tele.)
(▇▇▇) ▇▇▇-▇▇▇▇ (fax)
Apollo Real Estate Advisors, L.P.
1301 Avenue of the ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: Mr. ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ (tele.)
(▇▇▇) ▇▇▇-▇▇▇▇ (fax)
Pacifica Holding Company, a Colorado
corporation
▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Mr. ▇▇▇▇▇ ▇▇▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ (tele.)
(▇▇▇) ▇▇▇-▇▇▇▇ (fax)
with a copy to: Brownstein, Hyatt, et al.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
(▇▇▇) ▇▇▇-▇▇▇▇ (tele.)
(▇▇▇) ▇▇▇-▇▇▇▇ (fax)
or to such other address as either party may from time to time designate by
written notice to the other or to the Escrow Agent. Notices given by (i)
overnight delivery service as aforesaid shall be deemed
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received and effective on the first business day following such dispatch and
(ii) telecopy or fax machine shall be deemed given at the time and on the date
of machine transmittal provided same is sent prior to 4:00 p.m. on a business
day (if sent later, then notice shall be deemed given on the next business day)
and if the sending party receives a written send confirmation on its machine and
forwards a copy thereof by regular mail accompanied by such notice or
communication. Notices may be given by counsel for the parties described above,
and such Notices shall be deemed given by said party, for all purposes
hereunder.
6. Binding Effect. This Agreement shall be binding upon, inure to the
benefit of, and be enforceable by the parties hereto and their respective
successors and assigns.
7. Governing Law. This Agreement shall be deemed a contract made under the
laws of the State of Colorado and together with the rights and obligations of
the parties hereunder, shall be construed and enforced in accordance with and
governed by the laws of such state (but not including the choice-of-law rules
thereof). Each party hereto submits itself to the jurisdiction of any court
sitting in the County of Denver of the State of Colorado for the purpose of
adjudicating the rights of the parties hereunder.
8. Counterparts. This Agreement may be executed simultaneously in
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
9. Captions. Any captions are solely for convenience of reference and
shall not be used in construing or interpreting this Agreement.
10. Entire Agreement. This Agreement contains the entire agreement among
the parties with respect to the subject matter hereof and supersedes all prior
or oral agreements or understanding with respect thereto.
11. Amendment. This Agreement may not be waived, changed, discharged or
terminated orally, but only by an agreement in writing, signed by the party or
parties against whom enforcement of any waiver, change, modification, discharge
or termination is sought.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
▇▇▇▇-▇▇▇▇ REALTY, L.P.
BY: ▇▇▇▇-▇▇▇▇ Realty Corporation
By:
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President
▇▇▇▇-▇▇▇▇ REALTY CORPORATION
BY:
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President
APOLLO REAL ESTATE INVESTMENT FUND
II, L.P.
BY:
--------------------------------------
By:
-----------------------------
Name:
Title:
PACIFICA HOLDING COMPANY, LLC
BY:
--------------------------------------
Name:
Title:
PACIFICA HOLDING COMPANY, a Colorado
corporation
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BY:
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Name:
Title:
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