Exhibit 10.2(f)
ENVIRONMENTAL INDEMNITY AGREEMENT
THIS ENVIRONMENTAL INDEMNITY AGREEMENT (this "Agreement"), dated as
of May 30, 2000, is made by SONESTA BEACH RESORT LIMITED PART'NERSHIP, a
Delaware limited partnership ("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
$31,000,000.00 (the "Loan") to be evidenced by a Consolidated and Renewed
Promissory Note of even date herewith made by Borrower to the order of Lender
(the "Note") and secured by, among other things, a Consolidated, Amended and
Restated 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. Borrower is the owner of a fee simple 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:
Section 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 quality 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) Borrower (i) is a limited partnership, duly organized,
validly existing and in good standing under the laws of the State of Delaware,
(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
limited partnership and is in good standing in each jurisdiction in which it
owns or leases property, including Florida, 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) 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;
(i) 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;
(j) 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;
(k) 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 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;
(1) 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
(m) 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.
Section 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:
(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 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 EMG or an environmental consulting firm approved by
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 afier 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 Indeninitor 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
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 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
fill, 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.
Section 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 or 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 reasonably 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 Mortgage'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 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 hereto 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.
Section 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 shill 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 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.
Section 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 security for the Note; and, in any such case,
whether with or without notice to Indemnitor and with or without consideration.
Section 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.
Section 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.
Section 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, asbestors 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 jaw, 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.ss.ss.9601, et
seq.; the Superfund Arnendments and Reauthorization Act of 1986, Title III, 42
U.S.C.ss.ss.11001, et seq.; the Clean Air Act, 42 U.S.C.ss.ss.7401, et seq.; the
Safe Drinking Water Act 42 U.S.C.ss.ss.300(f), et seq.; the Solid Waste Disposal
Act, 42 U.S.C.ss.ss.6901, et seq.; the Hazardous Materials Transportation Act,
as amended, 49 U.S.C.ss.ss.5101, et seq.; the Resource Conservation and Recovery
Act, as amended, 42 U.S.C.ss.ss.6901, et seq.; the Federal Water Pollution
Control Act, as amended, 33 U.S.C.ss.ss.1251, et seq.; the Toxic Substances
Control Act of 1976, 15 U.S.C.ss.ss.2601, et seq.; the Occupational Safety and
Health Act, 29 U.S.C.ss.ss.651, et seq.; 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 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.
"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.
"Environmental Report" means the Phase I Environmental Site
Assessment dated May 9, 2000 and prepared by EMG for the benefit of Lender.
Section 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 Indeninitor 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
hereuner and any rights of subrogation to any collateral securing the Loan,
until all obligations of Indemnitor to the Indemnitees 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 Indemnitiees
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
cash 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 further action in any circumstances without notice
or demand where notice or demand is not otherwise required.
(e) All notices hereunder shall be in writing and shall be
delivered to Borrower and Lender in accordance with the provisions of the
Mortgage, and to Guarantor in accordance with the terms of the Guaranty.
(f) Indemnitor hereby submits itself to the jurisdiction and
venue of any state court located in Miami-Date County, Florida, or any federal
court located in the State of
Florida 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 thereof 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 KNOWLINGLY, 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 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 State of the Florida.
(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.
[Balance of page intentionally left blank]
IN WITNESS WHEREOF, Indemnitor has executed and delivered this
Agreement as of the date first above written.
BORROWER:
SONESTA BEACH RESEARCH LIMITED
PARTNERSHIP, a Delaware limited partnership
By: Florida Sonesta Corporation, a Florida
Corporation, its General Partner
By: /s/
----------------------------------
Xxxxx X. Xxxxxxxxx, Vice President
GUARANTOR:
SONESTA INTERNATIONAL HOTELS
CORPORATION, a New York corporation
By: /s/
--------------------------------------
Xxxxx X. Xxxxxxxxx, Vice President
