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Exhibit 10.21
INDEMNITY AGREEMENT dated as of May 20, 1998 (the "Agreement") by and
among BANC ONE CAPITAL HOLDINGS CORPORATION ("BOCHC"), a corporation organized
and existing under the laws of the State of Ohio; PIONEER REAL ESTATE ADVISORS,
INC. ("PREA"), a corporation organized and existing under the laws of the State
of Delaware; THE PIONEER GROUP, INC. ("TPG"), a corporation organized and
existing under the laws of Delaware; PBO PROPERTY FUND, L.L.C. (the "Fund"), a
limited liability company formed and existing under the laws of the State of
Delaware; PBO PROPERTY CAPITAL, L.L.C. (the "Managing Member"), a limited
liability company formed and existing under the laws of the State of Delaware;
and OVERSEAS PRIVATE INVESTMENT CORPORATION ("OPIC"), an agency of the United
States of America. (PREA and TPG are sometimes referred to herein collectively
as "Pioneer." BOCHC, PREA and TPG are sometimes referred to herein collectively
as the "Indemnitors" and individually as an "Indemnitor.")
W I T N E S S E T H:
WHEREAS, the Indemnitors, directly or indirectly, own member interests in
the Fund, which they have formed to seek to achieve current income and long term
capital gains for its members by investing in companies directly or indirectly
organized by it to acquire and develop light industrial, manufacturing,
commercial, office, distribution, warehouse, certain hotel and retail real
property and related real estate assets in Central and Eastern Europe and in the
New Independent States (each as defined by reference below), and to lease such
properties on a long-term basis to U.S. and other international financially
responsible tenants or to sell such properties to U.S. and other international
financially responsible purchasers;
WHEREAS, to obtain financing for the Fund's investments and operations,
the Fund, the Managing Member, PBO Holdings, L.L.C. and OPIC are
contemporaneously herewith entering into an Amended and Restated Finance
Agreement dated as of the date hereof (the "Finance Agreement") pursuant to
which OPIC has agreed to provide the Fund with a credit facility in the amount
of up to U.S. $160,000,000 (the "Loan"), subject to certain terms and
conditions, including, without limitation, that each of the Indemnitors execute,
deliver and comply with this Agreement; and
WHEREAS, to induce OPIC to provide the Loan, which will be of material
benefit to each of the Indemnitors, each Indemnitor wishes to reimburse OPIC and
the Fund for certain costs and expenses, and to defend, indemnify and hold
harmless OPIC, all other Indemnified Persons (as defined herein) and the Fund
against, and contribute to the satisfaction, payment and discharge of, certain
OPIC Losses and Fund Losses (each as defined herein), in each case in accordance
with the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending legally to be bound hereby, agree as
follows:
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SECTION 1. DEFINITIONS; INTERPRETATION.
(a) All capitalized terms used in this Agreement, including, without
limitation, the recitals hereto, and not otherwise defined herein shall have the
meanings assigned thereto in the Finance Agreement.
(b) In this Agreement, unless otherwise indicated or otherwise
required by the context:
(i) reference to and the definition of any document
(including, without limitation, this Agreement) shall be deemed a
reference to such document as it may be amended, supplemented,
revised, or modified from time to time;
(ii) the section headings and other captions in this Agreement
are for the purpose of reference only and do not limit or affect
its meaning;
(iii) reference to any individual, corporation, partnership,
limited liability company or other Person shall be deemed a
reference to such individual, corporation, partnership, limited
liability company or other Person together with its permitted
successors and assigns from time to time;
(iv) the words "hereof," "herein," and "hereunder" and words
of similar import when used in this Agreement refer to this
Agreement as a whole and not to any particular provision or Section
of this Agreement;
(v) phrases such as "approved by OPIC", and other phrases of
similar import authorize and permit OPIC to approve, disapprove, act
or decline to act in its sole discretion; and
(vi) the word "reasonable" (and words of similar import) in
any context herein applicable to any actions or determinations by
OPIC shall mean reasonable for OPIC, taking into account the
prevailing facts and circumstances, OPIC's generally applicable
internal policy guidelines at that time, OPIC's nature as a
governmental and not a commercial entity, and the obligations
imposed on OPIC pursuant to the Foreign Assistance Act of 1961, as
amended.
SECTION 2. OPIC REIMBURSEMENT.
(a) OBLIGATION TO PAY OR REIMBURSE. Each of BOCHC and Pioneer
shall, on a several but not joint basis, promptly pay or reimburse OPIC for
fifty percent (50%) of all costs and expenses incurred by OPIC (x) prior to, on
or after the date hereof, in the case of those costs and expenses identified in
clause (i) below, and (y) on or after the date hereof, in the case of all other
costs and expenses, in each case in connection with the negotiation,
preparation, execution,
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implementation and enforcement of this Agreement, the Finance Agreement and all
other Financing Documents, including, without limitation:
(i) all fees and expenses (including, without limitation, all
reasonable fees and expenses of outside counsel, business and real estate
advisors and other consultants) incurred by OPIC in connection with
negotiating and preparing this Agreement, the Finance Agreement, the Notes
and each other Financing Document;
(ii) all fees and expenses (including, without limitation, all
reasonable fees and expenses of outside counsel, business and real estate
advisors and other consultants) incurred by OPIC in connection with:
(A) establishing, preserving in full force and effect,
or enforcing its rights or remedies under the Finance Agreement,
this Agreement, the Notes and each other Financing Document;
(B) establishing, perfecting, recording, registering,
evidencing, acknowledging or authenticating the Liens granted or to
be granted under, by or pursuant to the Security Documents;
(C) modifying, amending or waiving any provision of the
Finance Agreement, this Agreement or any other Financing Document;
or
(D) collecting any amount due under the Finance
Agreement, the Notes, this Agreement or any other Financing
Document;
(iii) all fees and expenses of any Collateral Agent under each
Security Document;
(iv) all costs of reproducing documents and binding
post-closing document transcripts (including up to five copies thereof for
OPIC); and
(v) all travel expenses incurred by OPIC in connection with
the attendance of OPIC's representative at meetings of committees and
other bodies of the Fund or of any other Financing Party where OPIC is
entitled to representation or attendance.
(b) TIME FOR PAYMENT OR REIMBURSEMENT.
(i) Each amount subject to payment or reimbursement under this
Section 2 shall be due and payable upon the receipt by BOCHC or Pioneer,
as the case may be, of OPIC's reasonably itemized request for payment or
reimbursement thereof, subject to the requirements of Section 5 hereof.
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(ii) Notwithstanding any other provision of this Agreement,
the fees and expenses of Xxxxx Xxxx Xxxxxxx European Advisory Services
Ltd. ("JLW") which are subject to payment or reimbursement under this
Section 2 shall be limited to those specified in the Letter Agreement
dated May 20, 1998 (the "JLW Engagement Letter") between OPIC and JLW, as
the JLW Engagement Letter may be renewed or amended from time to time by
OPIC and JLW in accordance with its terms, without the necessity of prior
notice thereof to, or the approval thereto of, any of the Indemnitors,
except as expressly provided in this Section 2(b)(ii). If any amendment of
the JLW Engagement Letter would have the effect of materially increasing
the amount of fees or expenses for which the Indemnitors are liable under
this Section 2, such amendment shall be effected only with the approval of
the Indemnitors, which approval shall not be unreasonably withheld.
SECTION 3. OPIC AND INDEMNIFIED PERSON INDEMNITY AND CONTRIBUTION.
(a) OBLIGATION TO DEFEND, INDEMNIFY AND HOLD HARMLESS. To the extent
permitted by law, each of BOCHC and Pioneer shall, on a several but not joint
basis, defend, indemnify and hold harmless OPIC and its directors, officers,
employees, agents, counsel, advisors, subsidiaries and affiliates (collectively,
the "Indemnified Persons" and, individually, an "Indemnified Person") from and
against, and shall contribute to the payment, satisfaction and discharge of, any
and all losses, liabilities, claims, obligations, damages, penalties, actions,
causes of action, judgments, assessments, suits, costs, expenses or
disbursements of any kind or nature whatsoever, including, without limitation,
reasonable legal fees and expenses, but excluding Qualified Taxes (collectively,
the "OPIC Losses" and, individually, an "OPIC Loss"), in an amount equal to
fifty percent (50%) thereof, that may be imposed on, incurred by, or asserted
against OPIC or any other Indemnified Person based on, in connection with, or
arising out of:
(i) any claim by a third party (which shall in no event
include a Guaranteed Party under the OPIC Guaranty in its capacity as
such) that OPIC is responsible for any obligations of any Financing Party
in connection with the transactions contemplated to be undertaken by any
Financing Party, BOCHC, Pioneer or any of its respective Affiliates under
or pursuant to the Finance Agreement or any other Financing Document,
and/or the use or intended use of the proceeds of the Loan and/or the
Equity Commitments in connection with such transactions; or
(ii) any untrue statement (or alleged untrue statement) of a
material fact contained in the Offering Memorandum or any other offering
or selling material (collectively, the "Offering Materials") used by
BOCHC, Pioneer or any of its respective Affiliates to offer and/or sell to
one or more third parties any interests in the Fund, the Managing Member
or any other Person formed by BOCHC, Pioneer or any of its respective
Affiliates to hold, directly or indirectly, any interest in the Fund (a
"Fund Interest Holding Entity"), or any omission (or alleged omission) to
state therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, or any violation by BOCHC,
Pioneer, the Fund, any other Financing Party
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or any of its respective Affiliates of the Securities Act of 1933, as
amended, any state securities law or any rule or regulation thereunder in
connection with the offer, sale, transfer, exchange or other disposition
of any interests in the Fund, the Managing Member or any Fund Interest
Holding Entity to any one or more third parties (each of the foregoing
items in this clause (ii) being sometimes referred to herein as a
"Securities Law Claim").
(b) LIMITATION ON INDEMNITY. Notwithstanding anything to the
contrary in this Agreement, BOCHC and Pioneer shall not be liable for any OPIC
Losses to the extent that a court or arbitral tribunal with jurisdiction over
the subject matter of the OPIC Loss, OPIC and each other Indemnified Person in
connection with such subject matter determines in a proceeding at which OPIC and
each such other Indemnified Person had an adequate opportunity to defend its
interest, which determination is not subject to further appeal (any such
determination, a "Final Judicial Determination"), that such OPIC Losses (1)
resulted from the gross negligence or willful misconduct of OPIC or any other
Indemnified Person, or (2) arose out of any untrue statement or omission in the
Offering Materials accurately based upon written information regarding OPIC
furnished to BOCHC, Pioneer or any Financing Party by OPIC or any other
Indemnified Person and stated to be specifically for use (or delivered in
response to a request by BOCHC, Pioneer, the Fund or any Financing Party which
states that such material is to be used) in the Offering Materials.
(c) NOTICE OF CLAIMS FOR INDEMNIFICATION.
(i) Each Indemnified Person shall notify BOCHC and Pioneer
promptly after such Indemnified Person has actual knowledge of any claim
as to which indemnification may be sought under this Section 3.
(ii) The failure of any Indemnified Person to give notice of
any claim as provided herein shall not relieve either BOCHC or Pioneer of
its obligations under this Agreement unless such failure materially
prejudices the opportunity of such Indemnitor to defend against such
claim.
(iii) Each Indemnified Person may, in its sole discretion,
permit either BOCHC or Pioneer or its counsel to conduct the defense of
any claim as to which indemnification may be sought under this Section 3,
including, without limitation, any litigation based thereon or resulting
therefrom. Neither BOCHC nor Pioneer shall, in the defense of any such
claim or litigation, except with the prior written consent of each
Indemnified Person, consent to entry of any judgment or enter into any
settlement that does not include as an unconditional term thereof the
execution and delivery by the claimant or plaintiff to such Indemnified
Person of a release from all liability in respect to such claim or
litigation alleged by such claimant or plaintiff. Each Indemnified Person
shall furnish such information regarding itself or the claim in question
as each of BOCHC or Pioneer may reasonably request in writing and as shall
be reasonably required in connection with the defense of such claim,
including, without limitation, any litigation based thereon or resulting
therefrom.
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(d) RIGHT OF CONTRIBUTION.
(i) To provide for just and equitable contribution, if
(A) an Indemnified Person makes a claim for
indemnification pursuant to Section 3(a) hereof but it is found in a
Final Judicial Determination that such indemnification may not be
enforced in such case for reasons other than the gross negligence or
wilful misconduct of any Indemnified Person, even though this
Agreement expressly provides for indemnification in such case, or
(B) any Indemnified Person seeks contribution,
then each of BOCHC and Pioneer shall, on a several but not joint basis,
contribute to the satisfaction, payment and discharge of the OPIC Losses
to which any Indemnified Person may be subject, so that each of BOCHC and
Pioneer is responsible for the percentage thereof equal to (x) fifty
percent (50%) less (y) one-half (1/2) of the percentage of aggregate
cumulative Cash Flow theretofore distributed to OPIC for payment of the
Deferred Guaranty Fee as contemplated by the Finance Agreement; provided,
however, that if applicable law does not permit such allocation, then
other relevant equitable considerations, such as the relative fault of
BOCHC, Pioneer or any of its respective Affiliates, on the one hand, and
the Indemnified Person, on the other hand, in the aggregate, in connection
with the facts which resulted in such OPIC Losses, shall also be
considered. The relative fault, in the case of an untrue statement,
alleged untrue statement, omission, or alleged omission, shall be
determined by, among other things, whether such statement, alleged
statement, omission, or alleged omission relates to information supplied
by BOCHC, Pioneer or any of its respective Affiliates, on the one hand, or
by OPIC, on the other hand, and the parties' relative intent, knowledge,
access to information, and opportunity to correct or prevent such
statement, alleged statement, omission, or alleged omission. BOCHC,
Pioneer and OPIC agree and acknowledge that it would be unjust and
inequitable if the obligations provided herein for contribution were
determined by pro rata or per capita allocation of the aggregate OPIC
Losses (even if OPIC and all other Indemnified Persons were treated as one
entity for such purpose) or by any other method of allocation that does
not reflect the equitable considerations referred to in this Section 3(d).
(ii) In no case shall OPIC and all other Indemnified Persons,
in the aggregate, be responsible or otherwise liable for the payment of
more than five percent (5 %) of the amount of any OPIC Loss subject to
indemnification and contribution under this Section 3. This Section 3 is
not intended to supersede any right to contribution under the Securities
Act of 1933, as amended, or otherwise.
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SECTION 4. FUND REIMBURSEMENT, INDEMNITY AND CONTRIBUTION.
(a) OBLIGATION TO PAY OR REIMBURSE. Each of BOCHC and Pioneer agrees
that all costs and expenses incurred in connection with the offering and sale of
interests in the Fund, including, without limitation, such costs and expenses
incurred in connection with the preparation and use of the Offering Materials
and in connection with any sale, transfer, exchange or other disposition of an
interest in the Fund to any one or more third parties (all of the foregoing,
collectively, the "Offering and Sale Expenses") are not Permitted Expenses and
shall be borne solely by BOCHC and Pioneer and not by the Fund. Each of BOCHC
and Pioneer shall, on a several but not joint basis, promptly pay or reimburse
the Fund for fifty percent (50%) of all costs and expenses (including, without
limitation, all fees and expenses of outside counsel, business and real estate
advisors and other consultants), if any, incurred by the Fund prior to, on or
after the date hereof which are Offering and Sale Expenses. Each amount subject
to payment or reimbursement under this Section 4(a) shall be due and payable
upon the receipt by BOCHC or Pioneer, as the case may be, of a reasonably
itemized request from the Fund for payment or reimbursement thereof.
(b) OBLIGATION TO DEFEND, INDEMNIFY AND HOLD HARMLESS. To the extent
permitted by law, each of BOCHC and Pioneer shall, on a several but not joint
basis, defend, indemnify and hold harmless the Fund from and against, and shall
contribute to the payment, satisfaction and discharge of, any and all losses,
liabilities, claims, obligations, damages, penalties, actions, causes of action,
judgments, assessments, suits, costs, expenses or disbursements of any kind or
nature whatsoever, including, without limitation, legal fees and expenses but
excluding Qualifying Taxes (collectively, the "Fund Losses" and, individually, a
"Fund Loss"), in an amount equal to fifty percent (50%) thereof, that may be
imposed on, incurred by, or asserted against the Fund based on, in connection
with, or arising out of any untrue statement (or alleged untrue statement) of a
material fact contained in the Offering Materials used by BOCHC, Pioneer or any
of its respective Affiliates, or any omission (or alleged omission) to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, or any violation by such Indemnitor, any
Financing Party or any of its respective Affiliates of the Securities Act of
1933, as amended, any state securities law or any rule or regulation thereunder
in connection with the offer, sale, transfer, exchange or other disposition of
an interest in the Fund to any one or more third parties.
(c) NOTICE OF CLAIMS FOR INDEMNIFICATION.
(i) The Fund shall notify BOCHC and Pioneer promptly after it
has actual knowledge of any claim as to which indemnification may be
sought under Section 4 hereof.
(ii) The failure of the Fund to give notice of any claim as
provided herein shall not relieve either of BOCHC or Pioneer of its
obligations under this Agreement.
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(iii) The Fund may, in its sole discretion, permit either of
BOCHC or Pioneer or its counsel to conduct the defense of any claim as to
which indemnification may be sought under Section 4(b) hereof, including,
without limitation, any litigation based thereon or resulting therefrom.
Neither BOCHC nor Pioneer shall, in the defense of any such claim or
litigation, except with the prior written consent of the Independent
Advisory Board Committee, consent to entry of any judgment or enter into
any settlement that does not include as an unconditional term thereof the
execution and delivery by the claimant or plaintiff to the Fund of a
release from all liability in respect to such claim or litigation alleged
by such claimant or plaintiff. The Fund shall furnish such information
regarding itself or the claim in question as each of BOCHC or Pioneer may
reasonably request in writing and as shall be reasonably required in
connection with the defense of such claim, including without limitation,
any litigation based thereon or resulting therefrom.
(d) RIGHT OF CONTRIBUTION.
(i) To provide for just and equitable contribution, if
(A) the Fund makes a claim for indemnification pursuant
to Section 4(b) hereof but it is found in a Final Judicial
Determination that such indemnification may not be enforced in such
case, even though this Agreement expressly provides for
indemnification in such case, or
(B) the Fund seeks contribution,
then each of BOCHC and Pioneer shall, on a several but not joint basis,
contribute to the satisfaction, payment and discharge of the Fund Losses
to which the Fund may be subject, so that each of BOCHC and Pioneer is
responsible for the percentage thereof equal to fifty percent (50%);
provided, however, that if applicable law does not permit such allocation,
then other relevant equitable considerations, such as the relative fault
of BOCHC and Pioneer, on the one hand, and the Fund, on the other hand, in
connection with the facts which resulted in such Fund Losses, shall also
be considered, taking into account the level of control exercised by BOCHC
and Pioneer over the operation of the Fund and the benefit derived or to
be derived by BOCHC and Pioneer from use of the Offering Materials. The
relative fault, in the case of an untrue statement, alleged untrue
statement, omission, or alleged omission, shall be determined in light of,
among other factors, BOCHC's and Pioneer's level of control over the
preparation, dissemination and use of the Offering Materials, whether such
statement, alleged statement, omission, or alleged omission relates to
information supplied by BOCHC, Pioneer or any of its respective
Affiliates, and the parties' relative intent, knowledge, access to
information, and opportunity to correct or prevent such statement, alleged
statement, omission, or alleged omission. BOCHC, Pioneer and the Fund
agree and acknowledge that it would be unjust and inequitable if the
obligations provided herein for contribution were determined by pro rata
or per capita allocation of the aggregate Fund Losses or by any other
method of allocation that does not reflect the equitable considerations
referred to in this Section 4(d).
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(ii) This Section 4(d) is not intended to supersede any right
to contribution under the Securities Act of 1933, as amended, or
otherwise.
(e) ACTION BY INDEPENDENT ADVISORY BOARD COMMITTEE. The Fund and the
Managing Member acknowledge that all decisions made, and all actions taken, with
respect to the Fund's rights and obligations under Section 4 hereof shall be
determined by the Independent Advisory Board Committee.
SECTION 5. PRIOR OPIC DEMAND ON FINANCING CREDIT PARTIES. To the extent
that OPIC or any other Indemnified Person shall be entitled to payment,
reimbursement, indemnification, contribution or other performance by or from any
Financing Credit Party under the Finance Agreement or any other Financing
Document for any matter in respect of which OPIC or such other Indemnified
Person shall also be entitled to payment, reimbursement, indemnification,
contribution or such other performance by or from either of BOCHC or Pioneer
under Section 2 or 3 hereof (other than any matter (x) in respect of which the
Fund may also be entitled to payment, reimbursement, indemnification or such
other performance by or from either of BOCHC or Pioneer under Section 4 hereof,
including, without limitation, any Securities Law Claim), or (y) involving the
gross negligence, willful misconduct or fraud of any of the Fund, the Managing
Member, the Fund Manager, if any, or either of BOCHC or Pioneer), OPIC or such
other Indemnified Person, as the case may be, (i) shall request payment,
reimbursement, indemnification, contribution or such other performance by or
from such Financing Credit Party prior to making any demand for or requiring
payment, reimbursement, indemnification, contribution or such other performance
by or from either of BOCHC or Pioneer under Section 2 or 3 hereof, and (ii)
shall not request or require payment, reimbursement, indemnification,
contribution or such other performance by or from either of BOCHC or Pioneer
under Section 2 or 3 hereof until at least thirty (30) days after making a
similar request in writing for payment, reimbursement, indemnification,
contribution or such other performance by or from any Financing Credit Party
under the Finance Agreement or any other Financing Document and pursuant to
which similar request OPIC has not received all of such payment, reimbursement,
indemnification, contribution or other performance.
SECTION 6. SCOPE OF LIABILITY.
(a) JOINT AND SEVERAL LIABILITY. The obligations of PREA and TPG
under this Agreement shall be joint and several as between each such party. The
obligations of BOCHC, on the one hand, and Pioneer, on the other hand, under
this Agreement shall be several but not joint as between each such party or
parties.
(b) NO GUARANTEE. No provision of this Agreement is intended, or
shall be construed or interpreted, to constitute a guarantee by BOCHC or Pioneer
of the Notes or the Loans.
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(c) LIABILITIES OF BOCHC AND PIONEER. Except as otherwise provided
herein or in the Organizer Interest Pledge, Assignment and Security Agreement
dated as of the date hereof (the "Organizer Interest Pledge Agreement") by and
among the Fund, the Managing Member, BOCHC, PREA, TPG, OPIC and State Street
Bank and Trust Company, and except as may be otherwise provided under applicable
law, OPIC agrees that none of (i) BOCHC, (ii) Pioneer, (iii) the directors,
officers, employees, agents or representatives of BOCHC or Pioneer, other than
any such agent or representative which is a Financing Credit Party, or (iv) the
shareholders of BOCHC or Pioneer, shall be obligated personally for the debts,
obligations and liabilities of the Fund to OPIC under the Finance Agreement, the
Notes or any other Financing Documents.
(d) ORIGINAL INDEMNITY AGREEMENT. OPIC hereby agrees and confirms
that neither BOCHC nor Pioneer has any obligation or liability whatsoever to
OPIC under or arising out of the Indemnity Agreement dated June 14, 1996 by and
among OPIC, CEENIS Investor Fund, L.P., CEENIS Property Fund, L.P., Xxxxx Xxxxx,
Xxxxxx X. Xxxxxxx, Xx. and Auburndale Properties, Inc.
SECTION 7. CERTAIN ACTIVITIES OF BOCHC, PIONEER AND AFFILIATES. Until the
earlier of (a) the last day of the Investment Period, or (b) the date on which
the sum of the amounts (without duplication) (i) invested by the Financing
Credit Parties in Portfolio Securities, (ii) applied by the Financing Credit
Parties to pay Permitted Expenses in accordance with the Finance Agreement, and
(iii) committed to be invested by the Financing Credit Parties in Portfolio
Securities or in the development of Projects (in either case approved by OPIC)
and which such commitments, if not fulfilled, would subject the Fund to a
material penalty, a material economic loss or material damages, equals at least
75% of Available Capital, none of BOCHC, TPG, PREA or any of its respective
Affiliates shall organize, sponsor or manage any new private investment fund
having primary investment objectives in Central and Eastern Europe or the NIS
substantially similar to the Investment Objectives of the Fund.
SECTION 8. SUBROGATION; SUBORDINATION
(a) WAIVER OF SUBROGATION. Each of BOCHC and Pioneer waives all
rights of subrogation with respect to the Fund and each other Financing Party in
connection with any cost or expense paid or reimbursed to OPIC hereunder and any
OPIC Loss with respect to which indemnification or contribution is made to OPIC
or any other Indemnified Person hereunder, until all indebtedness and
liabilities of the Fund, each other Financing Party and each of BOCHC and
Pioneer to OPIC and the other Indemnified Persons under the Financing Documents
(other than the Deferred Guaranty Fee) shall have been satisfied, paid and
discharged in full; provided, however, that, in addition to the foregoing
waivers, each of BOCHC and Pioneer irrevocably waives, at all times and for all
purposes, all rights to repayment by, including, without limitation, all rights
of subrogation with respect to, the Fund and each other Financing Party in
connection with (i) any cost or expense which is paid or reimbursed to OPIC
under Section 2 or 3 hereof and as to which there exists a Fund Loss which is
also subject to payment or reimbursement by either BOCHC or Pioneer to the Fund
under Section 4 hereof and (ii) any OPIC Loss with respect to
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which indemnification or contribution is made to OPIC or any other Indemnified
Person under Section 2 or 3 hereof and as to which there exists a Fund Loss
which is also subject to indemnification or contribution by either BOCHC or
Pioneer under Section 4 hereof.
(b) SUBORDINATION. Each of BOCHC and Pioneer acknowledges that all
rights which it may have in respect to the repayment by the other Indemnitor,
the Fund or any other Financing Party of any amounts paid or reimbursed
hereunder to OPIC or any other Indemnified Person are subject to the
Subordination Agreement.
SECTION 9. OPIC RIGHT TO MAKE CAPITAL CALLS. Section 2.4(c) of the
Organizer Interest Pledge Agreement gives OPIC the right, in the event the Fund
has made an investment in a Project with respect to which construction has
commenced but has not been completed, upon the occurrence and during the
continuance of an Event of Default, to issue, or cause the Managing Member and
PREA to issue, one or more notices of drawdown and contribution notices,
respectively, for the purpose of causing the Members, on the one hand, and PREA
and BOCHC, on the other hand, to make certain capital contributions to the Fund
and the Managing Member, respectively. Except as provided in said Section
2.4(c), neither OPIC nor any Person claiming by, through or under OPIC shall
have the right to cause any Member or any member of the Managing Member to make
(a) a capital contribution to the Fund or the Managing Member that has not
theretofore been called pursuant to a notice of drawdown or contribution notice
issued by the Managing Member (while controlled by PREA and BOCHC or any of
their respective Affiliates) or PREA, as applicable, or (b) any loan to the Fund
or the Managing Member, pursuant to the Charter Documents of the Fund or the
Managing Member or any other agreement or otherwise, whether to repay the Notes
or the Loan or for any other purpose; provided, however, that the foregoing
shall not limit any obligations of (i) PREA, TPG or BOCHC under this Agreement,
the Subordination Agreement or the Organizer Interest Pledge Agreement, (ii) any
Member to return to the Fund any distributions which it has received that were
made in violation of any Financing Document or applicable law, or (iii) OPIC's
rights under any Financing Document or applicable law to enforce any such
obligations.
SECTION 10. MISCELLANEOUS.
(a) NOTICES. Each report, demand, notice and other communication to
be given under this Agreement (a "Notice") shall be in writing in the English
language, be delivered by hand, overnight courier, registered or certified mail
(with all postage thereon prepaid), telegram, or facsimile and be deemed to have
been duly given when received by the addressee, or if sent by facsimile upon
transmission to the below specified number with confirmation of same (or on the
immediately succeeding Business Day, if received or transmitted either on a day
which is not a Business Day or after 5:00 p.m. on a day which is a Business Day,
in either case in the city where the principal office of the recipient is
situated), as follows:
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If to any of BOCHC, Pioneer, the Fund or the Managing Member:
Xxxx Xxx Xxxxxxx Xxxxxxxx Xxxxxxxxxxx
XXX 0000
0000 00xx Xxxxxx, X.X.
Xxxxx 000
Xxxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Attn: Xx. Xxxxxxx X. Delphos, Managing Director
and to:
Pioneer Real Estate Advisors, Inc.
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Attn: Xx. Xxxxxxx X. Xxxxxx, President
and to:
The Pioneer Group, Inc.
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Attn: Xxxxxx X. Xxxxx
If to OPIC:
Overseas Private Investment Corporation
0000 Xxx Xxxx Xxx., X.X.
Xxxxxxxxxx, X.X. 00000
Attn: Administrator, Investment Funds Department
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Any party, by written notice to the others, may change the address to which such
communications should be sent to it. In the event that any Notice relates to any
party's rights and obligations under Section 4 or 10(g) hereof, a copy of such
Notice shall also be sent to the Chairman of the Independent Advisory Board
Committee at the address specified from time to time by the Independent Advisory
Board Committee and furnished in writing to all parties hereto.
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13
(b) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, UNITED STATES OF AMERICA.
(c) INDEPENDENT OBLIGATIONS; WAIVER OF JOINDER.
(i) The obligations of each of BOCHC and Pioneer hereunder are
independent from the obligations of the other Indemnitor hereunder, and
each of BOCHC's and Pioneer's obligations hereunder shall become effective
upon delivery by such Indemnitor of its or their counterpart or
counterparts of this Agreement, notwithstanding any delivery or failure of
delivery or breach of any provision hereof by the other Indemnitor.
(ii) Each of BOCHC and Pioneer hereby waives: (1) promptness,
diligence, notice of acceptance, presentment, demand, protest, notice of
protest and dishonor and any other notice with respect to this Agreement
not otherwise expressly required by the terms hereof, (2) any requirement
that OPIC, any other Indemnified Person or the Fund exhaust any right or,
except as expressly provided in Section 5 hereof, take any action against
the other Indemnitor, any Financing Party or any other Person or any
collateral, and (3) any requirement that the other Indemnitor, any
Financing Party or any other Person be joined in any action or proceeding
hereunder. Should OPIC, any other Indemnified Person or the Fund seek to
enforce the obligations of either BOCHC or Pioneer hereunder by action in
any court or arbitral proceeding, each of BOCHC and Pioneer waives any
requirement, substantive or procedural, (x) that a judgment or award
previously be rendered against the other Indemnitor, any Financing Party
or any other Person, (y) that any action or proceeding be brought against
the other Indemnitor, any Financing Party or any other Person, or (z) that
the other Indemnitor, any Financing Party or any other Person be joined in
such action or proceeding. Such waiver shall be without prejudice to the
right of OPIC, any other Indemnified Person or the Fund, at its option, to
proceed against each of BOCHC and Pioneer, any Financing Party or any
other Person, whether by separate action or proceeding or by joinder.
(d) SUCCESSION. This Agreement shall inure to the benefit of and be
binding upon the successors and assigns of the parties hereto; provided,
however, that neither BOCHC nor Pioneer shall, without OPIC's prior written
consent, assign or delegate any or all of its interests or obligations
hereunder.
(e) INTEGRATION; AMENDMENTS. This Agreement embodies the entire
understanding of the parties hereto, and supersedes all prior negotiations,
understandings and agreements (including, without limitation, the Charter
Documents of the Fund) between or among them with respect to the subject matter
hereof. The provisions of this Agreement may be waived, supplemented or amended
only by an instrument in writing signed by an Authorized Officer of each of the
parties hereto.
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14
(f) SEVERABILITY. If any provision of this Agreement is prohibited
or held to be invalid, illegal or unenforceable in any jurisdiction, the parties
hereto agree, to the fullest extent permitted by law, that (i) the validity,
legality and enforceability of the other provisions in such jurisdiction shall
not be affected or impaired thereby, and (ii) any such prohibition, invalidity,
illegality or unenforceability shall not render such provision prohibited,
invalid, illegal, or unenforceable in any other jurisdiction.
(g) NO WAIVER.
(i) No failure or delay by OPIC or the Fund in exercising any
right, power or remedy shall operate as a waiver thereof or otherwise
impair any of its rights, powers or remedies. No single or partial
exercise of any such right shall preclude any other or further exercise
thereof or the exercise of any other legal right. No waiver by OPIC of any
such right shall be effective unless given in writing.
(ii) The rights and remedies provided for herein are
cumulative and are not exclusive of any other rights, powers or remedies
provided by law. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion of any
other appropriate right or remedy.
(iii) The Fund may not waive, forgive, release, delay or
otherwise excuse performance by either BOCHC or Pioneer of any of its
obligations to the Fund hereunder unless OPIC has given its prior written
consent to such waiver, forgiveness, release, delay or other excuse.
(h) COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which when so executed and delivered shall be deemed an
original and all of which together shall constitute one and the same instrument.
[Signatures on following pages]
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15
IN WITNESS WHEREOF, each of the parties hereto has executed and delivered
(or has caused to be executed and delivered on its behalf by its Authorized
Officer) this Indemnity Agreement on the date first above written.
OVERSEAS PRIVATE INVESTMENT CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------
XXXXXX X. XXXXXX
Its: INVESTMENT FUNDS MANAGEMENT
OVERSEAS PRIVATE INVESTMENT CORP.
-------------------------------------
BANC ONE CAPITAL HOLDINGS CORPORATION,
an Ohio corporation
By:/s/ Xxxxx X. Xxxxx
---------------------------------------
Its: President
--------------------------------------
PIONEER REAL ESTATE ADVISORS, INC.,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------------
Its: President
--------------------------------------
THE PIONEER GROUP, INC.,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------------
Its: Vice President
--------------------------------------
16
PBO PROPERTY FUND, L.L.C.,
a Delaware limited liability company
By: PBO Property Capital, L.L.C.,
a Delaware limited liability company
Its: Managing Member
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------
Its: President
-------------------------------------
PBO PROPERTY CAPITAL, L.L.C.
a Delaware limited liability company
By: Pioneer Real Estate Advisors, Inc.,
a Delaware corporation
Its: Managing Member
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------
Its: President
-------------------------------------
