EXHIBIT 2.3
INDEMNITY AGREEMENT
This INDEMNITY AGREEMENT, dated as of July 1, 2003 (this
"Agreement"), is by and among Arbor Commercial Mortgage, LLC, a New York limited
liability company ("ACM"), Arbor Realty Trust, Inc., a Maryland corporation
("ART"), Arbor Realty Limited Partnership, a Delaware limited partnership
("ARLP") and Xx. Xxxx Xxxxxxx ("Xxxxxxx"). Capitalized terms not defined herein
have the meaning ascribed to them in the Contribution Agreement, dated as of
July 1, 2003, by and among ACM, ART and ARLP.
WHEREAS, pursuant to the Contribution Agreement, ACM has
contributed Initial Assets to ARLP which include the Xxxxxxxx Loan and the 0000
0xx Xxxxxx Xxxxxx Xxxx; and
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained herein, and intending to be legally bound hereby, the
parties agree as follows:
ARTICLE I
INDEMNIFICATION
1.1 ACM and Xxxxxxx, hereby jointly and severally agree to indemnify and
hold ART and ARLP harmless from and against damages, expenses, losses,
costs, claims or liabilities (each a "Claim") suffered or incurred by
ART and ARLP as a direct result of any untruth or inaccuracy in any of
the representations or warranties made by ACM in Section 4(b) of the
Contribution Agreement with respect to the 0000 0xx Xxxxxx Xxxxxx Loan
or the Xxxxxxxx Loan as if such representations and warranties were
made with respect to the 0000 0xx Xxxxxx Xxxxxx Loan or the Xxxxxxxx
Loan in the Contribution Agreement.
1.2 (a) The indemnification set forth in Section 1.1 shall only extend
to a Claim with respect to the Xxxxxxxx Loan of which written notice
has been given prior to the repayment in full of any and all amounts
due under the Xxxxxxxx Loan; and
(b) The indemnification set forth in Section 1.1 shall only extend
to a Claim with respect to the 0000 0xx Xxxxxx Xxxxxx Loan of which
written notice has been given prior to the repayment in full of any and
all amounts due under the 0000 0xx Xxxxxx Xxxxxx Loan.
1.3 Each of ART and ARLP shall give prompt written notice to ACM (the
receipt of which by ACM shall constitute notice to Xxxxxxx) as to the
assertion of any Claim, or the commencement of any Claim. The omission
of either of ART or ARLP to notify ACM of any such Claim shall not
relieve ACM or Xxxxxxx from
any liability in respect of such Claim that they may have to either of
ART or ARLP on account of this Agreement nor shall it relieve ACM or
Xxxxxxx from any other liability that it may have to either of ART or
ARLP, provided, however, that ACM and Xxxxxxx shall be relieved of
liability to the extent that the failure so to notify shall have caused
prejudice to the defense of such claim. In case any such claim shall be
asserted or commenced against either of ART or ARLP and it shall notify
ACM thereof, ACM shall be entitled to participate in the negotiation or
administration thereof and, to the extent it may wish, to assume the
defense thereof with counsel reasonably satisfactory to the party
against which such Claim was initially asserted or commenced, and,
after notice from ACM to the party against which such Claim was
initially asserted or commenced of its election so to assume the
defense thereof, which notice shall be given within 15 days of its
receipt of such notice from the party against which such Claim was
initially asserted or commenced, ACM will not be liable to the party
against which such Claim was initially asserted or commenced hereunder
for any legal or other expenses subsequently incurred by the party
against which such Claim was initially asserted or commenced in
connection with the defense thereof other than reasonable costs of
investigation. ACM shall not settle any claim without the written
consent of the party against which such Claim was initially asserted or
commenced, which consent shall not be unreasonably withheld or delayed.
1.4 Notwithstanding the foregoing, nothing in this Agreement shall limit
any rights of indemnification that ART or ARLP shall have from ACM or
Xxxxxxx pursuant to any other agreements or understandings between any
of the parties hereto.
ARTICLE II
GENERAL PROVISIONS
2.1 Counterparts. This Agreement may be executed in
counterparts, all of which shall be considered one and the same agreement and
shall become effective when counterparts have been signed by each of the parties
and delivered to the other parties, it being understood that all parties need
not sign the same counterpart.
2.2 Governing Law. This Agreement shall be governed and
construed in accordance with the laws of the State of New York, without regard
to any applicable conflicts of law provisions thereof.
2.3 Assignment; Successors. This Agreement and the
rights, interests or obligations of any party hereunder shall not be assigned by
any party hereto (whether by operation of law or otherwise) without the prior
written consent of the other parties hereto. Subject to the foregoing, this
Agreement will be binding upon, inure to the benefit of and be enforceable by
the parties and their respective successors and assigns.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
ARBOR COMMERCIAL MORTGAGE, LLC
By: /s/ Xxxxxxxxx X. Xxxxxx
--------------------------
Name: Xxxxxxxxx X Xxxxxx
Title: Chief Financial Officer
/s/ Xxxx Xxxxxxx
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Xxxx Xxxxxxx
ARBOR REALTY TRUST, INC.
By: /s/ Xxxxxxxxx X. Xxxxxx
--------------------------
Name: Xxxxxxxxx X. Xxxxxx
Title: Chief Financial Officer,
Treasurer and Secretary
ARBOR REALTY LIMITED PARTNERSHIP
By: ARBOR REALTY GPOP, INC.,
its General Partner
By: /s/ Xxxxxxxxx X. Xxxxxx
--------------------------
Name: Xxxxxxxxx X. Xxxxxx
Title: Secretary and Treasurer
