ENVIRONMENTAL INDEMNITY AGREEMENT
THIS ENVIRONMENTAL INDEMNITY AGREEMENT (this "Agreement"), dated as of
December 18, 1996, is made by XXXXX X. XXXXXXXXX, XXXXX X. XXXXXXXXX, and BOY
X.X. XXX XXXX, trustees of the Charterhouse of Cambridge Trust, and not
individually, under a Declaration of Trust dated December 27, 1963 and recorded
at Middlesex South Deeds Book 11160, Page 340, as amended by Amendment of
Declaration of Trust dated July 8, 1966 and recorded at Middlesex South Deeds
Book 11160, Page 359 ("Charterhouse"), and SONESTA OF MASSACHUSETTS, INC., a
Massachusetts corporation ("Sonesta," and, together with Charterhouse,
collectively, the "Borrower") and SONESTA INTERNATIONAL HOTELS CORPORATION., a
New York corporation ("Guarantor," and, together with Borrower, the
"Indemnitor") for the benefit of SUNAMERICA LIFE INSURANCE COMPANY, an Arizona
corporation ("Lender"), and the other "Indemnitees," as hereinafter defined.
RECITALS
A. Lender has agreed to make a loan to Borrower in the amount of
$22,880,000.00 (the "Loan") to be evidenced by a Promissory Note of even date
herewith made by Borrower to the order of Lender (the "Note") and secured by a
Mortgage, Security Agreement, Fixture Filing, Financing Statement and Assignment
of Leases and Rents of even date herewith granted by Borrower for the benefit of
Lender (the "Mortgage") covering certain real property more specifically
described in the Mortgage (the "Property") and guaranteed by a Limited Guaranty
Agreement of even date herewith by Guarantor for the benefit of Lender (the
"Guaranty"). All capitalized terms used herein without definition shall have the
meanings given to such terms in the Mortgage.
B. Charterhouse is the owner of a fee simple estate in the Property;
Sonesta is the owner of a leasehold estate in the Property.
C. As a condition precedent to making the Loan, Lender requires that
Indemnitor enter into this Agreement, whose covenants and obligations are
independent of and in addition to Borrower's obligations under the Note,
Mortgage and the other documents governing, evidencing and securing the Loan and
Guarantor's obligations under the Guaranty.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Indemnitor hereby represents, warrants and covenants to Lender and
Lender's officers, directors, employees, agents, affiliates, successors and
assigns (collectively, the "Indemnitees") as follows:
1. Representations and Warranties. Indemnitor represents and warrants to
the Indemnitees that:
(a) to the best of Indemnitor's knowledge, Hazardous Substances have
not at any time been generated, used, treated or stored on, or transported
to or from the Property in any quantity or manner which violates any
Environmental Law;
(b) to the best of Indemnitor's knowledge, Hazardous Substances have
not at any time been Released or disposed of on the Property in any
quantity or manner which violates any Environmental Law;
(c) to the best of Indemnitor's knowledge, Borrower is in compliance
with all applicable Environmental Laws with respect to the Property and the
requirements of any permits issued under such Environmental Laws with
respect to the Property;
(d) there are no past, pending or, to the best of Indemnitor's
knowledge, threatened Environmental Claims against Indemnitor or the
Property;
(e) to the best of Indemnitor's knowledge, there is no condition or
occurrence at the Property that could reasonably be anticipated (i) to form
the basis of any Environmental Claim against Indemnitor or the Property, or
(ii) to cause the Property to be subject to any restrictions on the
ownership, occupancy, use or transferability thereof under any
Environmental Law;
(f) except as otherwise disclosed in the Environmental Report
(hereinafter defined), to the best of Indemnitor's knowledge there are not
now and never have been any underground storage tanks located on the
Property;
(g) Charterhouse (i) is a business trust, duly organized, validly
existing and in good standing under the laws of
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the Commonwealth of Massachusetts, (ii) has the power and authority to own
its property and assets and to transact the business in which it is engaged
and (iii) is duly qualified as a foreign business trust and is in good
standing in each jurisdiction in which it owns or leases property or in
which failure to be duly qualified and in good standing would have an
adverse effect on its business, operations, property or financial
condition;
(h) Sonesta (i) is a corporation, duly organized, validly existing and
in good standing under the laws of the Commonwealth of Massachusetts, (ii)
has the power and authority to own its property and assets and to transact
the business in which it is engaged and (iii) is duly qualified as a
foreign corporation and is in good standing in each jurisdiction in which
it owns or leases property or in which failure to be duly qualified and in
good standing would have an adverse effect on its business, operations,
property or financial condition;
(i) Guarantor (i) is a corporation, duly organized, validly existing
and in good standing under the laws of the State of New York, (ii) has the
power and authority to own its property and assets and to transact the
business in which it is engaged and (iii) is duly qualified as a foreign
corporation and is in good standing in each jurisdiction in which it owns
or leases property or in which failure to be duly qualified and in good
standing would have an adverse effect on its business, operations, property
or financial condition;
(j) Indemnitor has the power to execute, deliver and perform the terms
and provisions of this Agreement and has taken all necessary action to
authorize the execution, delivery and performance by it of this Agreement;
(k) Indemnitor has duly executed and delivered this Agreement, and
this Agreement constitutes its legal, valid and binding obligation
enforceable against Indemnitor in accordance with its terms, except as such
enforcement may be limited by bankruptcy, insolvency, reorganization and
other laws affecting creditors' rights generally and by principles of
equity;
(l) neither the execution, delivery or performance by Indemnitor of
this Agreement, nor compliance by it with the terms and provisions hereof,
will (i) contravene any provision of any
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law, statute, rule or regulation or any order, writ, injunction or decree
of any court or governmental instrumentality, (ii) result in any breach of
any of the terms, covenants, conditions or provisions of, or constitute a
default under, or result in the creation or imposition of (or the
obligation to create or impose) any lien upon any of its property or assets
pursuant to the terms of any indenture, mortgage, deed of trust, credit
agreement, loan agreement or any other agreement, contract or instrument to
which it is a party or by which it or any of its property or assets is
bound or to which it may be subject, or (iii) violate any provision of any
organizational document under which any Indemnitor has been formed or
operates under applicable law;
(m) no order, consent, approval, license, authorization or validation
of, or filing, recording or registration with, or exemption by, any
governmental or public body or authority, or any subdivision thereof, is
required to authorize, or is required in connection with, the execution,
delivery and performance by Indemnitor of this Agreement or the legality,
validity, binding effect or enforceability of this Agreement; and
(n) to the best of Indemnitor's knowledge, Borrower is in compliance
with all applicable statutes, regulations and orders of, and all applicable
restrictions imposed by all governmental bodies in respect of the conduct
of its business and the ownership of its property.
2. Covenants. Indemnitor covenants and agrees as follows:
(a) Indemnitor will (i) comply with all Environmental Laws applicable
to the ownership or use of the Property, (ii) use its best efforts to cause
all tenants and other persons occupying the Property to comply with all
Environmental Laws, (iii) immediately pay or cause to be paid all costs and
expenses incurred in such compliance, and (iv) keep or cause the Property
to be kept free and clear of any liens imposed thereon pursuant to any
Environmental Laws. Notwithstanding clause (i) of the preceding sentence,
Indemnitor will not be deemed to be in default solely by reason of
Indemnitor's failure to comply with an Environmental Law applicable to the
ownership or use of the Property so long as, in Lender's judgment, each of
the following conditions is satisfied:
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(A) Indemnitor is engaged in and diligently pursuing in good
faith administrative or judicial proceedings appropriate to contest
the validity or applicability to the ownership or use of the Property
of such Environmental Law; and
(B) Indemnitor's noncompliance with such Environmental Law will
not result in either (1) the loss or forfeiture of any property
encumbered by the Mortgage or any interest of Lender therein, or (2)
any diminution in the value of the Property, as determined by Lender;
and
(C) Indemnitor deposits with Lender such security as Lender
requires to protect the Indemnitees against all loss, damage and
expense, including reasonable attorneys' fees, which Indemnitees might
incur if the subject Environmental Law is determined to be valid or
applicable.
If Lender determines that any one or more of such conditions is not satisfied or
is no longer satisfied, Indemnitor shall comply with the subject Environmental
Law (or commence and then diligently pursue compliance with such Environmental
Law if such compliance cannot be accomplished within ten (10) days) within ten
(10) days after Lender gives notice of such determination.
(b) Indemnitor will not generate, use, treat, store, Release or
dispose of, or permit the generation, use, treatment, storage, Release or
disposal of, any Hazardous Substances on the Property, or transport or
permit the transportation of any Hazardous Substances to or from the
Property, in each case in any quantity or manner which violates any
Environmental Law.
(c) If Lender (i) has knowledge of any pending or threatened
Environmental Claim against Indemnitor or the Property or (ii) has reason
to believe that the Indemnitor or the Property is in violation of any
Environmental Law or (iii) receives a request for an environmental site
assessment report from a regulatory or other governmental entity with
jurisdiction over Lender, then at Lender's written request, at any time and
from time to time, Indemnitor will provide to Lender an environmental site
assessment report concerning the Property, prepared by Xxxxx and Xxxxxxx,
Inc. or an environmental consulting firm approved by
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Lender, indicating the presence or absence of Hazardous Substances and the
potential cost of any removal or remedial action in connection with any
Hazardous Substances on the Property. Any such environmental site
assessment report shall be conducted at Indemnitor's sole cost and expense.
If Indemnitor fails to deliver to Lender any such environmental site
assessment report within sixty (60) days after being requested to do so by
Lender pursuant to this Section, Lender may obtain the same, and Indemnitor
hereby grants to Lender and its agents access to the Property and
specifically grants to Lender an irrevocable nonexclusive license to
undertake such an assessment, and the cost of such assessment will be
payable by Indemnitor on demand (together with interest thereon at the
Default Rate as defined in the Note if such cost is not paid within ten
(10) days after demand).
(d) Lender may, at its option, at any time and from time to time,
perform at its sole cost and expense an environmental site assessment
report for the Property, and Indemnitor hereby grants to Lender and its
agents access to the Property and specifically grants to Lender an
irrevocable non-exclusive license to undertake such an assessment;
provided, however, Lender shall give three (3) business days' prior written
notice to Borrower and Lender shall conduct all such assessments in a
manner reasonably intended to minimize the impact on Borrower's normal
business operations.
(e) Indemnitor will advise Lender in writing promptly upon learning of
any of the following: (i) any pending or threatened Environmental Claim
against Indemnitor or the Property; (ii) any condition or occurrence on the
Property that (A) results in noncompliance by Indemnitor with any
applicable Environmental Law, or (B) could reasonably be anticipated to
form the basis of an Environmental Claim against Indemnitor or the
Property; (iii) any condition or occurrence on the Property that could
reasonably be anticipated to cause the Property to be subject to any
restrictions on the ownership, occupancy, use or transferability of the
Property under any Environmental Law; and (iv) the taking of any removal or
remedial action in response to the actual or alleged presence, in any
quantity or manner which violates any Environmental Law, of any Hazardous
Substances on the Property. Each such notice shall describe in reasonable
detail the nature of the claim, investigation, condition, occurrence or
removal or remedial action and Indemnitor's response thereto. In
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addition, Indemnitor will provide Lender with copies of all communications
to or from Indemnitor and any governmental agency relating to Environmental
Laws, all communications to or from Indemnitor and any person relating to
Environmental Claims, and such detailed reports of any Environmental Claim
as may be requested by Lender.
(f) Lender shall have the right but not the obligation to participate
in or defend, as a party if it so elects, any Environmental Claim. Without
Lender's prior written consent, which consent shall not be unreasonably
withheld, Indemnitor shall not enter into any settlement, consent or
compromise with respect to any Environmental Claim that might impair the
value of the Property.
(g) At its sole expense, Indemnitor will conduct any investigation,
study, sampling and testing, and undertake any cleanup, removal, remedial
or other action necessary to remove and clean up all Hazardous Substances
from the Property which must be so removed or cleaned up in accordance with
the requirements of any applicable Environmental Laws, and in accordance
with orders and directives of all governmental authorities. If all or any
portion of the Loan shall be outstanding, Indemnitor may prepay the Loan in
full, together with all applicable prepayment penalties, in lieu of
complying with the preceding sentence.
(h) In the event Hazardous Substances are caused to be removed from
the Property by Indemnitor or Lender, in no event shall the Environmental
Protection Agency number, manifest number or similar identification
assigned to the Hazardous Substances so removed be in the name of Lender,
and, if required by applicable law, Indemnitor shall assume all liability
for such removed Hazardous Substances.
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3. Indemnity.
(a) Indemnitor agrees to defend (with attorneys reasonably
satisfactory to the Indemnitees), protect, indemnify and hold harmless each
of the Indemnitees and its respective officers, directors, employees,
attorneys and agents from and against any and all liabilities, obligations
(including removal and remedial actions), losses, damages (including
foreseeable and unforeseeable consequential damages and punitive damages),
penalties, actions, judgments, suits, claims, costs, expenses and
disbursements (including reasonable attorneys' and consultants' fees and
disbursements) of any kind or nature whatsoever that may at any time be
incurred by, imposed on or asserted against any of them directly or
indirectly based on, or arising or resulting from (i) the actual presence
(or presence alleged by third parties) of Hazardous Substances on the
Property in any quantity or manner which violates Environmental Law, or the
removal, handling, transportation, disposal or storage of such Hazardous
Substances, (ii) any Environmental Claim with respect to Indemnitor or the
Property, or (iii) the exercise of any Indemnitee's rights under this
Agreement (collectively, the "Indemnified Matters"), regardless of when
such Indemnified Matters arise, but excluding any Indemnified Matter with
respect to Hazardous Substances first placed or Released on the Property
after the later of (1) the date neither Indemnitor nor any of its
affiliates holds title to or any other interest in or lien on the Property,
or (2) the payment in full of the Secured Obligations (as defined in the
Mortgage). To the extent that this indemnity is unenforceable because it
violates any law or public policy, Indemnitor agrees to contribute the
maximum portion that it is permitted to contribute under applicable law to
the payment and satisfaction of all Indemnified Matters. Indemnitor's
obligations under this Section are subject to the following: (a) the right
to settle or resolve such claim, subject to Mortgagee's approval, which
approval shall not be unreasonably withheld, (b) the right to select legal
counsel of Indemnitor's choice, subject to Mortgagee's approval, which
approval shall not be unreasonably withheld, and (c) Indemnitor shall not
indemnify Mortgagee for Mortgagee's gross negligence or willful misconduct.
(b) Indemnitor agrees to reimburse each Indemnitee for all sums paid
and costs incurred by such Indemnitee with respect to any Indemnified
Matter within ten (10) days following written
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demand therefor, with interest thereon at the Default Rate (as defined in
the Note) if not paid within such ten (10) day period.
(c) Should any Indemnitee institute any action or proceeding at law or
in equity, or in arbitration, to enforce any provision of this Agreement
(including an action for declaratory relief or for damages by reason of any
alleged breach of any provision of this Agreement) or otherwise in
connection with this Agreement or any provision hereof, it shall be
entitled to recover from Indemnitor its reasonable attorneys' fees and
disbursements incurred in connection therewith if it is the prevailing
party in such action or proceeding.
(d) Notwithstanding any non-recourse provisions of the Note or any
other provision in any Loan Document, Lender shall be entitled to bring an
in personam action against Indemnitor, including an action for specific
performance or damages, to enforce the provisions of this Agreement.
4. Events of Default. Upon the occurrence of any of the following specified
events (each an "Event of Default"):
(a) if any of the representations and warranties contained in Section
1 shall prove to be untrue in any material respect as of the date made; or
(b) if Indemnitor fails to perform any of its obligations under this
Agreement within fifteen (15) days following notice thereof from Lender;
provided that if such nonperformance is incapable of cure within such
15-day period, no Event of Default shall occur hereunder if Indemnitor has
commenced a program to perform such obligations, which program is
satisfactory to Lender in its reasonable discretion and is in accordance
with applicable law, and is diligently pursuing such program to completion;
and provided further that if a shorter cure period or notice requirement
for any particular failure to perform is provided by applicable law or this
Agreement, such specific provision shall control;
then and in any such event, and at any time thereafter, if any Event of
Default shall then be continuing, Lender may do or cause to be done
whatever is reasonably necessary in its sole judgment to cause the Property
to comply with applicable Environmental Laws, and the cost thereof
(together with interest thereon at the
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Default Rate, as defined in the Note, from the date ten (10) days following
demand therefor) shall become immediately due and payable by Indemnitor
without notice. Indemnitor shall and does hereby grant to Lender and its
agents access to the Property and hereby specifically grants to Lender an
irrevocable, non-exclusive license to do whatever is reasonably necessary
in Lender's judgment to cause the Property to so comply, including, without
limitation, to enter the Property and remove therefrom any Hazardous
Substances.
5. Recourse Obligations.
(a) Indemnitor agrees that notwithstanding any term or provision
contained in this Agreement or the other Loan Documents to the contrary,
the obligations of Indemnitor as set forth in this Agreement shall be
exceptions to any non-recourse or exculpatory provision relating to the
Loan, and Indemnitor shall be fully liable for the performance of its
obligations under this Agreement, and such liability shall not be limited
to the original principal amount of the Loan.
(b) The liability of Indemnitor under this Agreement shall in no way
be limited to or impaired by any amendment or modification of the
provisions of the Loan Documents unless such amendment or modification
expressly refers to this Agreement. In addition, the liability of
Indemnitor under this Agreement shall in no way be limited or impaired by
(i) any extensions of time for performance required by any of the Loan
Documents, (ii) any sale, assignment or foreclosure of the Note or any sale
or transfer of all or any part of the Property, (iii) any exculpatory
provision in any of the Loan Documents limiting any Indemnitee's recourse
to property encumbered by the Mortgage or to any other security, or
limiting the Indemnitees' rights to a deficiency judgment against
Indemnitor, (iv) the accuracy or inaccuracy of the representations and
warranties made by Indemnitor under any of the Loan Documents, (v) the
release of Indemnitor or any other person from performance or observance of
any of the agreements, covenants, terms or conditions contained in any of
the Loan Documents (other than this Agreement) by operation of law, any
Indemnitee's voluntary act, or otherwise, (vi) the release or substitution
in whole or in part of any security for the Note or (vii) Lender's failure
to record the Mortgage or file any Financing Statements (or Lender's
improper recording or filing of any thereof) or to otherwise perfect,
protect, secure or insure any security interest or lien given as
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security for the Note; and, in any such case, whether with or without
notice to Indemnitor and with or without consideration.
6. Independent Obligations. This Agreement is intended to create
obligations that are separate and independent of Indemnitor's obligations under
the Note, Mortgage and other Loan Documents. Indemnitor's obligations hereunder
are, however, secured by the Mortgage and the other Loan Documents.
7. Survival.
(a) The representations, warranties, covenants and indemnities set
forth in this Agreement shall survive the repayment of the Loan, the
release of the lien of the Mortgage, any foreclosure of the Mortgage or the
delivery of a deed or assignment in lieu of foreclosure or otherwise, and
the transfer of any interest in and to the Property.
(b) This Agreement shall be binding on and inure to the benefit of
Indemnitor, the Indemnitees, and their respective successors and assigns.
Without limiting the generality of the foregoing, this Agreement shall
inure to the benefit of each assignee or holder of the Note and each of
such assignee's or holder's officers, directors, employees, agents and
affiliates. Notwithstanding the foregoing, (i) this Agreement shall not
inure to the benefit of parties unaffiliated with Lender that acquire title
to the Property from Lender or an affiliate of Lender, and (ii) Indemnitor,
without the prior written consent of Lender in each instance, may not
assign, transfer or set over in whole or in part, all or any part of its
benefits, rights, duties and obligations hereunder.
8. Definitions. As used in this Agreement, the following terms shall have
the following meanings:
"Hazardous Substances" means (a) any chemicals, materials or
substances defined as or included in the definition of "hazardous
substances," "hazardous wastes," "hazardous materials," "extremely
hazardous wastes," "restricted hazardous wastes," "toxic substances,"
"toxic pollutants," "contaminants" or "pollutants," or words of similar
import, under any applicable Environmental Law; and (b) any other chemical,
material or substance, exposure to which is prohibited, limited or
regulated by any governmental authority, including, without limitation,
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asbestos and asbestos-containing materials in any form, lead-based paint,
any radioactive materials and polychlorinated biphenyls ("PCB's"), or
substances or compounds containing PCB's.
"Environmental Law" means any federal, state or local law, whether
common law, court or administrative decision, statute, rule, regulation,
ordinance, court order or decree, or administrative order or any
administrative policy or guidelines concerning action levels of a
governmental authority (federal, state or local) now or hereafter in effect
relating to the environment, public health, occupational safety, industrial
hygiene, any Hazardous Substance (including, without limitation, the
disposal, generation, manufacture, presence, processing, production,
Release, storage, transportation, treatment or use thereof), or the
environmental conditions on, under or about the Property, as amended and as
in effect from time to time (including, without limitation, the following
statutes and all regulations thereunder as amended and in effect from time
to time: the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended, 42 U.S.C. xx.xx. 9601, et seq.; the
Superfund Amendments and Reauthorization Act of 1986, Title III, 42 U.S.C.
xx.xx. 11001, et seq.; the Clean Air Act, 42 U.S.C. xx.xx. 7401 et seq.;
the Safe Drinking Water Act, 42 U.S.C. xx.xx. 300(f), et seq.; the Solid
Waste Disposal Act, 42 U.S.C. xx.xx. 6901 et seq.; the Hazardous Materials
Transportation Act, as amended, 49 U.S.C. xx.xx. 5101, et seq.; the
Resource Conservation and Recovery Act, as amended, 42 U.S.C. xx.xx. 6901,
et seq.; the Federal Water Pollution Control Act, as amended, 33 U.S.C.
xx.xx. 1251, et seq.; the Toxic Substances Control Act of 1976, 15 U.S.C.
xx.xx. 2601, et seq.; the Occupational Safety and Health Act, 29 U.S.C.
xx.xx. 651, et seq.; the Massachusetts Oil and Hazardous Material Release
Prevention and Response Act, Chapter 21E of the Massachusetts General Laws,
the Massachusetts Hazardous Waste Management Act, Chapter 21C of the
Massachusetts General Laws; and any successor statutes and regulations to
the foregoing).
"Environmental Claims" means any and all administrative, regulatory or
judicial actions, suits, demands, demand letters, claims, liens, notices of
non-compliance or violation, investigations or proceedings relating in any
way to any Environmental Law (hereafter "Claims") or any permit issued
under any such Environmental Law, including without limitation (a) any and
all Claims by governmental or regulatory authorities for enforcement,
cleanup, removal, response, remedial or other
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actions or damages pursuant to any applicable Environmental Law, and (b)
any and all Claims by any third party seeking damages, contribution,
indemnification, cost recovery, compensation or injunctive relief resulting
from Hazardous Substances or arising from alleged injury or threat of
injury to health, safety or the environment.
"Environmental Report" means the "Report on Phase 1 Environmental Site
Assessment, Royal Sonesta Hotel" relating to the Property, prepared by
Xxxxx and Xxxxxxx, Inc. dated October 22, 1996 and addressed to Lender.
"Release" means disposing, discharging, injecting, spilling, leaking,
leaching, dumping, emitting, escaping, emptying, seeping, placing and the
like, into or upon any land or water or air, or otherwise entering into the
environment.
9. Miscellaneous.
(a) If Indemnitor is more than one person or entity, then (i) all
persons or entities comprising Indemnitor are jointly and severally liable
for all of the Indemnitor's obligations hereunder; (ii) all
representations, warranties, and covenants made by Indemnitor shall be
deemed representations, warranties, and covenants of each of the persons or
entities comprising Indemnitor; (iii) any breach, Default or Event of
Default by any of the persons or entities comprising Indemnitor hereunder
shall be deemed to be a breach, Default, or Event of Default of Indemnitor;
and (iv) any reference herein contained to the knowledge or awareness of
Indemnitor shall mean the knowledge or awareness of any of the persons or
entities comprising Indemnitor.
(b) Indemnitor waives any right or claim of right to cause a
marshalling of its assets or to cause any Indemnitee to proceed against any
of the security for the Loan before proceeding under this Agreement.
Indemnitor expressly waives and relinquishes all present or future rights,
remedies, or circumstances which might constitute a legal or equitable
discharge of Indemnitor or which might otherwise impair the validity or
enforceability of this Agreement. Indemnitor hereby agrees to postpone the
exercise of any and all rights of subrogation to the rights of any
Indemnitee against Indemnitor hereunder and any rights of subrogation to
any collateral securing the Loan, until all obligations of Indemnitor to
the Indemnitees
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hereunder have been performed in full and all principal, interest and other
sums evidenced or secured by the Loan Documents shall have been paid in
full.
(c) Any party liable upon or in respect of this Agreement or the Loan
may be released without affecting the liability of any party not so
released.
(d) No failure or delay on the part of any of the Indemnitees in
exercising any right, power or privilege hereunder or under any other Loan
Document and no course of dealing between Indemnitor and the Indemnitees
(or any of them) shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, power or privilege hereunder or under any
other Loan Document preclude any other or further exercise thereof or the
exercise of any other right, power or privilege hereunder or thereunder.
The rights, powers and remedies herein or in any other Loan Document
expressly provided are cumulative with and not exclusive of any rights,
powers or remedies which the Indemnitees or any of them would otherwise
have. No notice to or demand on Indemnitor in any case shall, ipso facto,
entitle Indemnitor to any other or further notice or demand in similar or
other circumstances or constitute a waiver of the rights of the Indemnitees
to any other or further action in any circumstances without notice or
demand where notice or demand is not otherwise required.
(e) Any notice required or permitted to be given under this Agreement
shall be in writing and will be deemed given (a) upon personal delivery,
(b) on the first business day after receipted delivery to a courier service
which guarantees next-business-day delivery, or (c) on the fifth business
day after mailing, by registered or certified United States mail, postage
prepaid, in any case to the appropriate party at its address set forth
below:
If to Indemnitor:
c/o Sonesta International Hotels Corporation
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Office of the Treasurer
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with a copy to:
Xxxxx & Xxxxxxxx
000 Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxx, Esq.
If to Lender:
SunAmerica Life Insurance Company
0 XxxXxxxxxx Xxxxxx
Xxxxxxx Xxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attn: Director-Mortgage Lending and Real Estate
Either party may change such party's address for notices or copies of
notices by giving notice to the other party in accordance with this
Section.
(f) Indemnitor hereby submits itself to the jurisdiction and venue of
any state court located in Middlesex County, Massachusetts, or any federal
court located in the Commonwealth of Massachusetts in connection with any
action or proceeding brought for enforcement of Indemnitor's obligations
hereunder, and hereby waives any and all personal or other rights under the
law of any other country or state to object to jurisdiction within such
location for purposes of litigation to enforce such obligations. Indemnitor
agrees that service of process upon Indemnitor shall be complete upon
delivery thereof in any manner permitted by law.
(g) Neither this Agreement nor any term hereof may be changed, waived,
discharged or terminated unless such change, waiver, discharge or
termination is in writing and signed by each of the parties hereto.
(h) LENDER AND INDEMNITOR KNOWINGLY, IRREVOCABLY, VOLUNTARILY AND
INTENTIONALLY WAIVE ANY RIGHT EITHER MAY HAVE TO A TRIAL BY JURY IN RESPECT
OF ANY ACTION, PROCEEDING OR COUNTERCLAIM BASED ON THIS AGREEMENT, OR
ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT, OR ANY COURSE
OF CONDUCT, COURSE OF DEALING, STATEMENT (WHETHER VERBAL OR WRITTEN) OR
ACTIONS OF ANY PARTY HERETO. THIS PROVISION IS A MATERIAL INDUCEMENT FOR
LENDER AND
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INDEMNITOR TO ENTER INTO THE LOAN TRANSACTION EVIDENCED BY THE NOTE.
(i) This Agreement and the rights and obligations of the parties
hereunder shall be construed in accordance with and be governed by the law
of the Commonwealth of Massachusetts.
(j) All pronouns and any variations of pronouns herein shall be deemed
to refer to the masculine, feminine, or neuter, singular or plural, as the
identity of the parties may require. Whenever the terms herein are
singular, the same shall be deemed to mean the plural, as the identity of
the parties or the context requires and vice versa.
(k) This Agreement may be executed in multiple counterparts, each of
which shall constitute a duplicate original, but all of which together
shall constitute one and the same instrument.
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IN WITNESS WHEREOF, Indemnitor has executed and delivered this
Agreement as of the date first above written.
INDEMNITOR:
/s/ Xxxxx X. Xxxxxxxxx
--------------------------------------------------
Xxxxx X. Xxxxxxxxx, Trustee of the Charterhouse of
Cambridge Trust, and not individually
/s/ Xxxxx X. Xxxxxxxxx
--------------------------------------------------
Xxxxx X. Xxxxxxxxx, Trustee under a Grant of Trustee
Power, Authority and Discretion dated December 5, 1996
from Boy X.X. xxx Xxxx, Trustee of the Charterhouse of
Cambridge Trust, and not individually
SONESTA OF MASSACHUSETTS, INC., a Massachusetts
corporation
By:/s/ Xxxxx X. Xxxxxxxxx
-----------------------------------------------
Xxxxx X. Xxxxxxxxx
Vice President
SONESTA INTERNATIONAL HOTELS
CORPORATION, a New York
corporation
By:/s/ Xxxxx X. Xxxxxxxxx
-----------------------------------------------
Xxxxx X. Xxxxxxxxx
Vice President
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