Exhibit 10.97
To:
CROWN NORTHCORP, INC. a corporation registered in the State of Delaware
with an office at 0000 Xxxxxx Xxxx, Xxxxxxxx, Xxxx 00000 XXX ("CNI")
From:
KENMORE SCANDINAVIAN LIMITED, incorporated in Scotland with registered
office at 00 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx XX0 0XX ("KENMORE")
and
ROYAL INVESTMENTS, L.L.C., a Wyoming limited liability company with
registered address at CT Corporation System, 0000 Xxxxx Xxxxxx, Xxxxxxxx,
Xx 00000 XXX ("ROYAL", and, together with Kenmore, the ("INDEMNITORS")
30 June 2005
Dear Sirs
SHARE TRANSFER AGREEMENT REGARDING CROWN FASTIGHETER AB DATED 14 MAY 2005 AND
MADE BETWEEN CROWN EUROPEAN HOLDINGS LTD (THE "SELLER") AND AB GRUNDSTENEN
101666 (UNDER CHANGE OF NAME TO NIAM RETAIL HOLDING AB) (THE "BUYER") (THE
"AGREEMENT")
We acknowledge that in accordance with the sale by the Seller and purchase by
the Buyer of the shares of Crown Fastigheter AB pursuant to the Agreement, you,
CNI, at our request and in consideration of payment of a fee of SEK 725,000 (the
"FEE"), entered into the Agreement to guarantee the due and punctual fulfillment
of all of the Seller's obligations under the Agreement up to an amount not
exceeding SEK 72,500,000 (the "GUARANTEE") for the period from 30 June 2005 (the
"CLOSING DATE") to the date falling 12 months after the Closing Date (the
"GUARANTEE PERIOD").
In consideration of your entering into and otherwise accepting liability under
the Guarantee, we hereby agree with you as follows:
1. INDEMNITY AGAINST LIABILITY
1.1 We shall indemnify you and keep you indemnified against all demands,
costs, claims, liabilities, losses, costs and expenses arising in
relation to or out of the Guarantee provided, however, that you
shall only be entitled to demand any amount you are obliged to pay
under the Guarantee following a demand by the Buyer and your
compliance with paragraph 3.
1.2 We shall pay such sums to you as you are obliged to pay within five
Business Days of written demand together with interest on them from
the date five Business Days following such demand for payment under
this Counter-Indemnity until payment of them in full by us in full
at the rate of 2% per annum above the cost to you of acquiring the
necessary funds in such currency and manner as you may from time to
time decide.
2. LIMITATION OF LIABILITY
2.1 Our liability to counter-indemnify you on account of any payment by
you under the Guarantee shall be limited severally to a maximum
aggregate amount of SEK
72,500,000. Further, our liability in respect of any claims made
under this under this Counter-Indemnity shall be borne in the
percentages of 73.13% (up to a maximum aggregate amount of SEK
53,019,250.00) by Kenmore and 26.87% (up to a maximum aggregate
amount of SEK 19,480,750.00) by Royal.
3. AUTHORISATION TO MAKE PAYMENTS
We hereby irrevocably authorise you to agree to any demands which
appear on their face to be validly made under the Guarantee without
any further reference to or authority from us, subject to you having
received legal advice from your counsel in Sweden that the sum
demanded under the Agreement is due and payable by you and we agree
that any such Claims (as defined in the Agreement) shall be binding
on us and shall, as between us, be accepted by us as conclusive
evidence that you were liable to pay or comply with it.
4. WAIVER OF DEFENCES
4.1 Our liability under this Counter-Indemnity will not be affected by
an act, omission, matter or thing which would reduce, release of
prejudice any of our liability under this Counter-Indemnity (without
limitation and whether or not known to us or you) including:
4.1.1 any time or waiver granted to, or composition with any person;
4.1.2 the release of any rights under the Guarantee;
4.1.3 any extension, renewal or replacement of the Guarantee;
4.1.4 any amendment or replacement of or variation to the terms of the
Guarantee;
4.1.5 any unenforceability, illegality or invalidity of any obligation of
any person under the Guarantee; or
4.1.6 any insolvency or similar proceedings.
5. PAYMENT OF THE FEE
5.1 We hereby direct the Seller to pay the Fee to CNI on our behalf,
such fee to be deducted from any amounts due to the Indemnitors
pursuant to the Articles of Association of the Seller, in the
proportions 26.87% or SEK 194,807.50 in respect of Royal and 73.13%
or SEK 530,192.50 in respect of Kenmore.
5.2 The Seller enters into this Counter-Indemnity solely for the purpose
of acknowledging that payment of the Fee will be made in accordance
with paragraph 5.1.
6. REPRESENTATIONS OF THE INDEMNITORS
6.1 Each of the Indemnitors severally makes the following representation
to CNI on the date of this Counter-Indemnity:
6.1.1 It is duly incorporated and validly existing with limited liability
under the laws of its jurisdiction of incorporation and has the
power and authority under the laws of all
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applicable jurisdictions to own its assets and to carry on its
business as it is now being conducted; and
6.1.2 It has the power to perform its obligations under this
Counter-Indemnity and it has taken all necessary corporate and other
action to enter into and perform its obligations under this
Counter-Indemnity.
7. NOTICES
7.1 Every notice, consent, request, demand or other communication under
this Counter-Indemnity shall be in writing delivered personally, by
first class prepaid post or fax and shall be sent to the address or
fax number of the person concerned as is notified to it by the other
parties to this Counter-Indemnity or, in relation to you at your
option, to any of your officers at any place or by despatching it
addressed to you at your registered or principal office for the time
being.
7.2 Any such notice, consent, request, demand or other communication:
7.2.1 delivered personally shall be deemed to have been received
immediately upon delivery;
7.2.2 sent by post in the United Kingdom to an address in the United
Kingdom shall be deemed to have been received at the opening of
business on the first working day following the day on which it was
posted, even if returned undelivered, otherwise such notice,
consent, request, demand or other communication sent by post shall
be deemed to have been received at the opening of business on the
tenth working day following the day on which it was posted, even if
returned undelivered.
7.2.3 sent by fax shall be deemed to have been received upon transmission.
8. MODIFICATION OF THE COUNTER INDEMNITY
This Counter Indemnity may not be modified, amended, renewed or
extended except with your prior written consent.
9. JUDGMENT CURRENCY
As a separate and independent stipulation which shall not be
affected or discharged by the performance of any or all of our
obligations hereunder or by any judgment or order obtained in
respect of any or all of those other obligations, if any sum due
from us hereunder or any order or judgement given or made in
relation hereto has to be converted from the currency (in this
paragraph 8, the "FIRST CURRENCY") in which the same is payable
hereunder or under such order or judgment to another currency (in
this paragraph 8, the "SECOND CURRENCY") for the purpose of (a)
making or filing a claim or proof against us, (b) obtaining an order
or judgment in any court or other tribunal or (c) enforcing any
order or judgment given or made in relation hereto, we shall
indemnify and hold harmless you from and against any loss (including
without limitation, the costs of effecting any necessary currency
exchange) suffered as a result of any discrepancy between (i) the
rate of exchange used for such purpose to convert the sum in
question from the first currency into the second currency and (ii)
the rate or rates of exchange at which you may in the ordinary
course of business purchase the first currency with the second
currency upon receipt of the sum paid to you in satisfaction, in
whole or in part, of any such order, judgment, claim or proof.
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10. RIGHTS AND REMEDIES
Your rights hereunder are cumulative, may be exercised as often as
considered appropriate and are in addition to the general law. Such
rights (whether arising hereunder or under the general law) shall
not be capable of being waived or varied otherwise than by an
express waiver or variation in writing and, in particular, any
failure to exercise or any delay in exercising any of such rights
shall not operate as a waiver or variation of that or any other such
right, any defective or partial exercise of any such rights shall
not preclude any other or further exercise of that or any other such
right, and no act or course of conduct or negotiation by you or on
your behalf shall in any way preclude you from exercising any such
right or constitute a suspension or any variation of any such right.
11. RELEASE
We shall be released from our obligations under this Counter
Indemnity upon the earlier of (i) ten days following the last day on
which under the terms of the Guarantee you can receive a claim under
the Guarantee (provided that no claim is then outstanding or notice
of a claim or proposed claim has been made by such date); and (ii)
upon your being fully and irrevocably released from your
obligations, actual, contingent or otherwise, under the Guarantee.
12. MISCELLANEOUS
12.1 Our liability to counter-indemnify you under this Counter-Indemnity
shall be a continuing liability and will extend to the ultimate
balance of sums payable by us to you under this Counter-Indemnity
regardless of any intermediate payment or discharge in whole or
part.
12.2 Your rights under this Counter Indemnity shall be in addition to and
not in any way prejudiced by any other rights you may have under the
Agreement or any other security or otherwise howsoever (and whether
against us or against any other legal person) and may be enforced
against us without first having recourse to any such right and
without taking any steps or proceedings against any other legal
person. You may at any time and without reference to us give time
for payment or grant any other indulgence and give up, deal with,
vary, exchange or abstain from perfecting or enforcing any other
indemnities, guarantees, interests by way of security or other
obligations held by you at any time and discharge any party to them
or any of them, and realise them or any of them and compound with,
accept compositions from and make any other arrangements with the
beneficiary of the Guarantee or any legal persons, as you think fit,
without affecting our liability under this Counter Indemnity.
12.3 If any payment by us or any discharge given by you is avoided or
reduced as a result of insolvency or a similar event:
a) our liability under this Counter Indemnity shall continue as
if the payment, discharge, avoidance or reduction had not
occurred; and
b) you shall be entitled to recover the value or amount of that
payment from us, as if that payment, discharge, avoidance or
reduction had not occurred.
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13. JURISDICTION
13.1 We agree for your benefit without prejudice to your right to take
proceedings before any other court of competent jurisdiction, that
the courts of England have jurisdiction to settle any disputes in
connection with this Counter-Indemnity.
13.2 For this purpose we irrevocably submit to the jurisdiction of the
English courts and irrevocably appoint Xxxxxxx Xxxxxxx of Xxxxxxx
Xxxxx, 000 Xx. Xxxxxxx Xxxxxx, Xxxxxxx, X0 0XX as our agent for
service of process. We agree that process will be effectively served
on us if delivered to that agent at that address.
14. GOVERNING LAW
This Counter-Indemnity is governed by English law.
15. COUNTERPARTS
This Counter Indemnity may be executed in any number of
counterparts, each of which when executed and delivered shall be an
original, but all of which when taken together shall constitute a
single instrument.
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IN WITNESS whereof this Counter-Indemnity has been executed as a deed on the
date first above written.
Executed as a deed by KENMORE
SCANDINAVIAN LIMITED )
)
Acting by /s/
--------------------
Director
)
and by: )
--------------------
Director/Secretary
Executed as a deed by )
ROYAL INVESTMENTS, L.L.C. )
By: /s/ Xxxxxx X. Xxxxx
--------------------------
Managing Member
Executed as a deed by )
CROWN NORTHCORP, INC. )
/s/ Xxxxxx X. Xxxxx
----------------------
Acting by Director
)
)
/s/ Xxxxxxx X. Xxxxx
--------------------------
Secretary
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