INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (the "AGREEMENT") is made as of June 25,
2001, by WHITEHALL STREET REAL ESTATE LIMITED PARTNERSHIP V, a Delaware limited
partnership ("WHITEHALL V"), WHITEHALL STREET REAL ESTATE LIMITED PARTNERSHIP
VI, a Delaware limited partnership ("WHITEHALL VI"), WHITEHALL STREET REAL
ESTATE LIMITED PARTNERSHIP VII, a Delaware limited partnership ("WHITEHALL
VII"), WHITEHALL STREET REAL ESTATE LIMITED PARTNERSHIP VIII, a Delaware limited
partnership ("WHITEHALL VIII"), WHITEHALL STREET REAL ESTATE LIMITED PARTNERSHIP
XI, a Delaware limited partnership ("WHITEHALL XI"), and WHITEHALL STREET REAL
ESTATE LIMITED PARTNERSHIP XII, a Delaware limited partnership ("WHITEHALL XII"
and, collectively with Whitehall V, Whitehall VI, Whitehall VII, Whitehall VIII
and Whitehall XI, the "WHITEHALL INDEMNITOR"), and WELLSFORD REAL PROPERTIES,
INC., a Maryland corporation ("WELLSFORD INDEMNITOR"), in favor of GENERAL
ELECTRIC CAPITAL CORPORATION, a New York corporation ("LENDER"). Whitehall V,
Whitehall VI, Whitehall VII, Whitehall VIII, Whitehall XI, Whitehall XII and
Wellsford Indemnitor are collectively referred to herein as "INDEMNITOR".
R E C I T A L S:
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1. Pursuant to a Loan Agreement of even date herewith executed by
Wellsford/Whitehall Holdings, L.L.C., a Delaware limited liability company
("BORROWER"), and Lender (the "LOAN AGREEMENT"), Lender has agreed to make a
secured loan to Borrower in the amount of $352,600,000.00 together with interest
thereon (the "LOAN").
2. A portion of the Loan shall be used to refinance the Property described as
"Gateway Tower" in Schedule 1.1(A) to the Loan Agreement (the "GATEWAY TOWER
PROPERTY"). The Gateway Tower Property is owned by WWG 401 North Washington LLC,
a Delaware limited liability company ("WWG 401"), which is a wholly-owned
subsidiary of Borrower. In consideration of Lender's agreement to allow a
portion of the Loan to be used to finance or refinance the Gateway Tower
Property, WWG 401 is executing a Guaranty of even date herewith in favor of
Lender (the "WWG 401 GUARANTY"). WWG 401's obligations under the WWG 401
Guaranty will be secured by a Lien on the Gateway Tower Property and on WWG
401's other assets, as more particularly described in the Collateral Documents
executed by WWG 401 in favor of Lender (the "WWG 401 GUARANTY COLLATERAL
DOCUMENTS").
3. Lender requires, as a condition precedent to entering into the Loan, that
Indemnitor execute and deliver this Agreement to Lender.
NOW, THEREFORE, in consideration of the premises, the sum of $10.00 and
other good and valuable consideration, the receipt and sufficiency of which are
hereby duly acknowledged, and in order to be of material benefit and assistance
to Borrower and in order to induce Lender to make advances under the Loan,
Indemnitor does hereby covenant and agree as follows:
2. Recitals. Each and all of the foregoing Recitals are true and correct and are
incorporated herein by reference.
3. Capitalized Terms. All initially capitalized terms utilized herein, unless
specifically otherwise defined herein, shall have the meanings assigned to such
terms in the Loan Agreement.
4. Indemnity.
(1) Indemnitor hereby absolutely, irrevocably and unconditionally indemnifies
and agrees at all times to hold harmless Lender and its successors and permitted
assigns (collectively, the "INDEMNIFIED PERSONS"), and each of them, free and
harmless of and from all obligations, losses, damages (whether direct, indirect
or consequential), charges, liabilities, claims (legal or equitable), costs,
expenses and suits, of any nature whatsoever (including any of the foregoing
which result from any settlement or compromise of claims by an Indemnified
Person, provided that Indemnitor shall have a reasonable opportunity to
participate in the negotiations of, and consult with the Indemnified Persons
regarding, any such settlement or compromise (but the final decision as to any
such settlement or compromise shall be made by the Indemnified Parties)) which
any or all of the Indemnified Persons may suffer, incur or be subject to as a
result of the avoidance or any attempted avoidance or claim of avoidability by
WWG 401 or any Affiliate of WWG 401 (whether directly by WWG 401 or such
Affiliate, as a debtor or as a debtor-in-possession), or a trustee in
bankruptcy, assignee for the benefit of creditors or receiver for any of them,
whether brought on behalf of WWG 401's creditors, equity holders or estate in a
state or federal bankruptcy or insolvency proceeding or brought by any debtor,
debtor-in-possession or trustee in bankruptcy, assignee for the benefit of
creditors or receiver for WWG 401 or any Affiliate of WWG 401 or brought on
behalf of WWG 401 or any Affiliate of WWG 401 as a creditor of any other
Affiliate of WWG 401, or by any other Person, of (i) any transfer to (or for the
benefit of) Lender of an interest of WWG 401 in property (including the payment
of money to Lender by WWG 401 and the creation in favor of Lender of a lien or
any other encumbrance on property of WWG 401 pursuant to the WWG 401 Guaranty
Collateral Documents) or (ii) any obligation incurred by WWG 401 under the WWG
401 Guaranty or the WWG 401 Guaranty Collateral Documents, which avoidance or
attempted avoidance is brought pursuant to any state or federal fraudulent
transfer, fraudulent conveyance, debtor-creditor, or partnership or corporate
powers/authority statutory or common law (including Sections 544, 547 or 548 of
Title 11 of the United States Code (or such successor statutory provision as may
provide for a similar remedy) and the Uniform Fraudulent Transfer Act and the
Uniform Fraudulent Conveyance Act (as adopted by a state)).
(2) Indemnitor acknowledges that Lender has agreed to disburse the proceeds of
the Loan in reliance upon Indemnitor's indemnities, representations, warranties
and covenants in this Agreement. For these reasons, it is the intention of
Indemnitor and Lender that the provisions of this Agreement shall (solely with
respect to this Agreement) supersede any provisions in the Loan Documents which
in any way limit the personal liability of Indemnitor, and Indemnitor shall be
personally liable for any and all obligations arising under this Agreement. In
the event of any conflict between the terms of this Agreement and any of the
other Loan Documents (including the Loan Agreement), this Agreement shall govern
and control in all respects.
5. Obligations Remain in Effect. The liability of Indemnitor under this
Agreement shall remain in effect regardless of any law, regulation, or decree
now or hereafter in effect in any jurisdiction which might in any manner affect
any of such terms or provisions or the rights of Lender with respect thereto as
against Borrower or WWG 401 and irrespective of the validity, regularity or
enforceability thereof, or of any other condition, contingency or circumstances
whatsoever, whether occurring prior to or after the date hereof, whether known
or unknown to Indemnitor, Borrower, WWG 401 or Lender, and whether or not any of
the same may or might vary the risk or affect the rights or remedies of
Indemnitor. Unless Lender shall expressly agree otherwise in writing, the
obligations of Indemnitor under this Agreement shall not be reduced or
discharged by any modifications of the Loan Agreement or Loan Documents,
including changes in the terms of disbursement or changes in the terms of
repayment thereof, modifications, extensions, substitutions or renewals or
changes in payment dates, releases of security in whole or in part, or changes
in interest rate.
6. Cooperation. Each Indemnified Person shall promptly forward to Indemnitor,
and Indemnitor shall promptly forward to all Indemnified Persons, any and all
notices, demands and communications that Indemnitor or any Indemnified Person,
as the case may be, or anyone on its respective behalf may receive, from any
Person in connection with any claims, debts, obligations and demands covered by
the indemnity contained herein.
7. Payment Obligation. To the extent of Indemnitor's obligations hereunder,
Indemnitor waives any right to require that any action be brought against
Borrower, WWG 401 or any other Person or to require that resort be had to any
security. Lender may, at its option, proceed against Indemnitor in the first
instance, without first proceeding against Borrower, WWG 401 or any other Person
and without first resorting to any security held by it as collateral or to any
other remedies, at the same or different times, as it may deem advisable; and
the liability of Indemnitor hereunder shall not be affected or impaired by an
acceptance by Lender of any security for, or by any failure, delay, neglect or
omission by Lender to realize upon or protect any such indebtedness, liability
or obligation or any notes or other instruments evidencing same or any
collateral or security therefor.
8. Consent to Extensions, Renewals and Releases. Without in any manner affecting
the liability of Indemnitor, Indemnitor hereby consents that Lender from time to
time, before or after any default by Borrower or WWG 401, with or without
further notice to or assent from Indemnitor, may, and upon such terms and
conditions as Lender may deem advisable:
(1) extend in whole or in part (by renewal or otherwise), modify, accelerate
(only after default), change or release any indebtedness, liability or
obligation of Borrower or WWG 401 to Lender or of any other Person secondarily
or otherwise liable to Lender for any indebtedness, liability or obligation of
Borrower or WWG 401, or waive any default with respect thereto;
(2) sell, release, surrender, modify, impair, exchange, substitute or (if a
chose or choses in action) extend the duration or the time for performance or
payment of any and all property, of any nature and from whomsoever received,
held by Lender as security for the payment or performance of any indebtedness,
liability or obligation of Borrower or WWG 401 to Lender; and
(3) settle, adjust or compromise any claim of Lender against Borrower or WWG 401
or any other Person secondarily or otherwise liable for any indebtedness,
liability or obligation of Borrower or WWG 401.
Indemnitor hereby ratifies and confirms any such extension, renewal,
change, release, waiver, surrender, exchange, modification, impairment,
substitution, settlement, adjustment or compromise and agrees that the same
shall be binding upon Indemnitor, and Indemnitor hereby expressly waives any and
all defenses, counterclaims or offsets which Indemnitor might or could have by
reason thereof, it being understood that Indemnitor shall, except as otherwise
provided herein, at all times be bound by this Agreement and remain liable to
Lender hereunder.
9. Waivers by Indemnitor. Indemnitor hereby waives, to the fullest extent
permitted under applicable law:
(1) notice of acceptance of this Agreement by Lender, or of the creation,
renewal or accrual of any liability of Borrower or WWG 401, present or future,
or of the reliance of Lender upon this Agreement (it being understood that every
indebtedness, liability and obligation of Borrower or WWG 401 to Lender shall
conclusively be presumed to have been created, contracted or incurred in
reliance upon this Agreement);
(2) demand of payment from any Person indebted in any manner on or for any of
the liabilities or obligations hereby indemnified;
(3) presentation for payment of any instrument of Borrower or WWG 401, or any
other Person, protest thereof and notice of its dishonor to any party thereto
and to Indemnitor; and
(4) any duty on the part of Lender to disclose to Indemnitor any facts which
Lender may now or hereafter know about Borrower or WWG 401, regardless of
whether Lender has reason to believe that any such facts materially increase the
risk beyond that which Indemnitor intends to assume or has reason to believe
that such facts are unknown to Indemnitor or has a reasonable opportunity to
communicate such facts to Indemnitor, it being understood and agreed that
Indemnitor is fully responsible for being and keeping informed of the financial
condition of Borrower and WWG 401 and of all circumstances bearing on the risk
of non-payment or non-performance of Borrower's or WWG 401's obligations to
Lender.
10. Representations and Warranties of Indemnitor. Indemnitor acknowledges the
full reliance by Lender upon the following representations and warranties.
Wellsford Indemnitor, as to Wellsford Indemnitor only, and Whitehall Indemnitor,
as to Whitehall Indemnitor only, represents and warrants to Lender as follows:
(1) Indemnitor is a limited partnership, limited liability company or
corporation (as set forth in the opening paragraph hereof) duly organized,
validly existing and in good standing under the laws of the Delaware or Maryland
(as set forth in the opening paragraph), is qualified to do business in all of
the states where the real properties owned by it are located and otherwise where
such qualification is necessary to operate its business, has paid all
organizational and filing fees, and has the power and authority to own or hold
under lease, the assets it purports to own or hold under lease, to make this
Agreement and to perform all of its obligations hereunder.
(2) The execution, delivery and performance of this Agreement (i) have been duly
authorized by all requisite corporate, partnership and/or limited liability
company action; (ii) will not violate or be in conflict with (A) any provision
of applicable law (including any applicable usury or similar law), (B) any
order, writ, judgment, rule or regulation of any Governmental Authority, (C) the
organizational documents of Indemnitor or (D) any indenture, agreement or other
instrument to which Indemnitor is a party or by which Indemnitor or any of its
properties or assets is or may be bound; (iii) will not result in the creation
or imposition of any Lien upon any of Indemnitor's properties or assets except
as expressly contemplated by this Agreement; and (iv) do not require the consent
or approval of any Governmental Authority or any other Person other than such
consents as have been obtained and copies of which have been delivered to
Lender.
(3) There are no actions, suits or proceedings (whether or not purportedly on
behalf of Indemnitor) pending or, to the best knowledge of Indemnitor,
threatened against Indemnitor, at law, in equity, in arbitration or before or by
any court, board, local government or instrumentality of any federal, state or
local government or of any agency or subdivision thereof, or before any
arbitrator or panel of arbitrators, which involves Indemnitor or the
transactions contemplated by this Agreement and which would have a material
adverse effect on Indemnitor's ability to perform its obligations under this
Agreement, and Indemnitor is not in default (and has not received any order or
notice of any default) with respect to any final judgment, writ, injunction,
decree, rule or regulation of any Governmental Authority which would have a
material adverse effect on Indemnitor's ability to perform its obligations under
this Agreement.
(4) This Agreement constitutes the valid and binding obligations of Indemnitor
enforceable in accordance with its terms, except as such enforceability and the
availability of certain rights and remedies provided for herein may be limited
by bankruptcy, insolvency or other similar laws of general application affecting
the enforcement of creditors' rights or by general principles of equity limiting
the availability of equitable remedies or the extent to which equitable defenses
may be raised.
(5) The information contained in all written financial statements, reports,
balance sheets and other written financial information delivered by Indemnitor
and relating to Indemnitor to Lender is true, accurate and complete information,
in all material respects, concerning the financial condition of Indemnitor.
(6) No information contained in this Agreement, the written financial statements
and other written financial information, or any written, statement furnished to
Lender by or on behalf of Indemnitor, contains any untrue statement of a
material fact or omits to state a material fact necessary to make the statements
contained herein or therein not misleading in light of the circumstances under
which made.
The representations and warranties set forth in this Section 9 shall
survive the execution, delivery and performance of this Agreement and shall
continue until all of the obligations provided herein have been paid and
performed in full.
11. Maintenance of Net Worth. Until the first to occur of (a) payment in full of
all Obligations, (b) release of the Gateway Tower Property in accordance with
Section 2.4 of the Loan Agreement, or (c) transfer of the Gateway Tower Property
to Borrower in accordance with Section 2.10 of the Loan Agreement, Indemnitor
shall maintain a Net Worth (defined below) of at least $100,000,000. Subject to
the notice and cure period described in Section 10.1(12) of the Loan Agreement,
Indemnitor's failure to maintain such Net Worth at any time during such period
shall constitute an Event of Default under the Loan Agreement. As used herein,
"NET WORTH" means, as of any date, the sum of (i) the combined Whitehall Net
Worth (as defined below) for all Whitehall Indemnitors plus (ii) Wellsford Net
Worth (as defined below); provided, however, that if either the Whitehall
Parties or Wellsford buys 100% of the other's ownership interests in WWG, as
permitted under Section 9.4(2) of the Loan Agreement, then effective upon such
transfer of interests in WWG, "Net Worth" shall mean Whitehall Net Worth (if the
Whitehall Parties acquire Wellsford's interests in WWG) or Wellsford Net Worth
(if Wellsford acquires the Whitehall Parties' interests in WWG), as applicable.
As used above, "WHITEHALL NET WORTH" means, as of any date, for each
Whitehall Indemnitor, the sum of (a) Available Contributions (as defined in each
Indemnitor's Partnership Agreement) as of such date, plus (b) Total Partners'
Capital as shown in the Combined Statements of Assets, Liabilities and Partners
Capital in Whitehall Indemnitor's most recent combined quarterly financial
statements. The terms "Available Contributions" and "Total Partners' Capital"
used in the preceding sentence are line items appearing in Whitehall
Indemnitor's combined financial statements for the year ended December 31, 2001.
Whitehall Indemnitor agrees not to make any changes in the terminology or
accounting methodology used in Whitehall Indemnitor's financial statements
without Lender's consent (which consent shall not be unreasonably withheld or
delayed), except that Whitehall Indemnitor may make any such changes in
accordance with GAAP.
As used above, "WELLSFORD NET WORTH" means, as of any date, an amount equal
to (a) the value, in the aggregate, of Wellsford Indemnitor's assets less (b)
the value, in the aggregate, of Wellsford Indemnitor's intangible assets (e.g.
goodwill, etc.) less (c) the value, in the aggregate, of Wellsford Indemnitor's
liabilities, all as determined and calculated in accordance with GAAP,
consistently applied.
12. Financial Statements. Indemnitor covenants and agrees that, from and after
the Closing Date and for so long as Indemnitor is required under Section 10
above to maintain a Net Worth of at least $100,000,000, it shall deliver to
Lender:
(1) Within ninety (90) days after the end of each fiscal quarter, commencing
with the quarter ending June 30, 2001, a copy of the unaudited consolidated
balance sheet of Indemnitor as of the close of such quarter and the related
statement of income and cash flows for that portion of Indemnitor's fiscal year
ending as of the close of such quarter, all prepared by the general partner,
chief financial officer or similar officer of Indemnitor in accordance with GAAP
(subject to the terms set forth herein and to normal year-end adjustments and
excluding footnotes and supporting schedules, if same are not available
(provided that such footnotes and supporting schedules are promptly delivered to
Lender when same become available)) and accompanied by the certification, on
behalf of Indemnitor, by the general partner, chief financial officer or similar
officer of Indemnitor that (i) all such financial statements are complete and
correct and present fairly in accordance with GAAP (subject to normal year-end
adjustments) the financial position, the results of operations and the cash
flows of Indemnitor as at the end of such quarter and for the period then ended,
and (ii) Indemnitor is in compliance with the Net Worth covenant contained in
Section 10 above.
(2) Within one hundred twenty (120) days after the close of each Fiscal Year,
commencing with Indemnitor's fiscal year ended December 31, 2001, a copy of the
annual audited consolidated financial statements of Indemnitor, consisting of
balance sheets and statements of income and capital accounts and cash flows
(setting forth beginning with the reports for Indemnitor's fiscal year ending
December 31, 2001 in comparative form in each case the figures for the previous
fiscal year), which financial statements shall be prepared in accordance with
GAAP, certified (only with respect to the financial statements) without
qualification by the independent certified public accountants regularly retained
by Indemnitor, or any other firm of independent certified public accountants of
recognized national standing selected by Indemnitor, and acceptable to Lender,
and accompanied by a certification of the general partner, chief financial
officer or similar officer of Indemnitor that (i) all such financial statements
are complete and correct and present fairly in accordance with GAAP the
financial position, the results of operations and the cash flows of Indemnitor
as at the end of such year and for the period then ended, and (ii) Indemnitor is
in compliance with the Net Worth covenant contained in Section 10 above.
(3) Lender acknowledges that the financial statements to be delivered pursuant
to this Section 11 shall be delivered separately for each of (i) the Wellsford
Indemnitor, (ii) Whitehall V and Whitehall VI, (iii) Whitehall VII and Whitehall
VIII and (iv) Whitehall XI and Whitehall XII; provided, however, that so long as
Wellsford Indemnitor is a public company subject to the reporting requirements
of the Securities Exchange Act of 1934 and the required financial statements of
Wellsford Indemnitor are available to the general public (within the time
periods required above) at no expense to Lender, the Wellsford Indemnitor shall
not be required to separately deliver such financial statements.
13. Interest and Expenses of Enforcement. Any sum required to be paid by
Indemnitor to Lender pursuant to the terms hereof shall bear interest at the
Default Rate from the date said sums should have been paid by Indemnitor until
paid by Indemnitor. Indemnitor agrees to pay any and all reasonable costs and
expenses incurred by Lender in enforcing any rights or remedies under this
Agreement.
14. Consideration. Indemnitor acknowledges that its undertakings given hereunder
are given in consideration of the disbursement of the advances under the Loan,
and in consideration of the substantial benefits Indemnitor expects to derive
from the making of the Loan.
15. No Waiver. No failure on the part of Lender to pursue any remedy hereunder
or under any other of the Loan Documents shall constitute a waiver on its part
of the right to pursue said remedy on the basis of the same or a subsequent
breach. No extension, substitution, modification, amendment or renewal of any of
the Loan Documents shall serve to waive the provisions hereby or discharge
Indemnitor from any obligation herein contained in whole or in part, except to
the extent expressly provided by Lender in writing or as provided herein.
16. Obligations Independent; Waiver of Exoneration.
(1) Indemnitor agrees that the obligations hereunder are independent of and in
addition to the undertakings of Borrower and WWG 401 pursuant to the Loan
Documents, any evidence of indebtedness issued in connection therewith, any
mortgage or other security instrument given to secure the same, any other
indemnities or guarantees given in connection therewith and any other
obligations of Indemnitor to Lender. A separate action may be brought to enforce
the provisions hereof whether or not Borrower or WWG 401 is a party in any such
action.
(2) Indemnitor waives any defense it may acquire by reason of Lender's election
of any remedy against it or Borrower or WWG 401, or any of them, even though
Indemnitor's right of subrogation may thereby by impaired or extinguished.
17. Subrogation. Notwithstanding anything to the contrary contained herein,
until payment in full of the Obligations, Indemnitor shall not have or assert
any rights it may otherwise have at law or in equity (including any law
subrogating Indemnitor to the rights of Lender) to seek contribution,
indemnification, or any other form of reimbursement from Borrower or WWG 401,
any other indemnitor, or any other Person now or hereafter primarily or
secondarily liable for any obligations of Borrower or WWG 401 to Lender, for any
payment or disbursement otherwise. Indemnitor waives the benefit of, and any
right to participate in, any security now or hereafter held by Lender from
Borrower or WWG 401.
18. Multiple Indemnitors. If more than one Person signs this Agreement as
Indemnitor, (a) the term "Indemnitor" shall mean each such Person, (b) the
obligations of each Indemnitor shall be joint, several and independent, and (c)
this Agreement shall be construed and enforced as though each Indemnitor
executed a separate indemnity on the terms set forth in this Agreement (subject
to the provisions of Sections 10 and 11, and the provisions of Section 9 that
specifically refer to Wellsford Indemnitor and Whitehall Indemnitor).
19. Amendments, Etc. No amendment or waiver of any provision of this Agreement
nor consent to any departure by Indemnitor therefrom shall in any event by
effective unless the same shall be in writing and signed by Lender, and then
such waiver or consent shall be effective only in the specific instance and for
the specific purpose for which given.
20. Notices. Any and all notices hereunder shall be in writing and shall be made
and received in accordance with Section 11.1 of the Loan Agreement.
21. Monies. All references to monies herein, or the equivalent thereof, shall be
deemed to mean lawful monies of the United States of America.
22. Loan Agreement and Loan Documents. Indemnitor acknowledges that it is fully
familiar with the terms, provisions and conditions of the Loan Agreement and
other Loan Documents and that its signature on this Agreement shall also serve
as its consent to and approval of the terms and provisions thereof.
23. Miscellaneous.
(1) NOTWITHSTANDING THE FACT THAT THIS AGREEMENT MAY BE EXECUTED AND DELIVERED
IN A JURISDICTION OTHER THAN THE STATE OF NEW YORK, THE PARTIES HERETO AGREE
THAT THE LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAWS), TOGETHER WITH THE LAWS OF THE UNITED STATES OF AMERICA,
SHALL GOVERN THE RIGHTS AND DUTIES OF THE PARTIES HERETO AND THE VALIDITY,
CONSTRUCTION, ENFORCEMENT AND INTERPRETATION OF THIS AGREEMENT.
(2) Time is of the essence hereof.
(3) If any term, provision, covenant or condition hereof or any application
thereof should be held by a court of competent jurisdiction to be invalid, void
or unenforceable, all terms, provisions, covenants and conditions hereof, and
all applications thereof not held invalid, void or unenforceable shall continue
in full force and effect and shall in no way be affected, impaired or
invalidated thereby.
(4) The use of the words "herein", "hereof", "hereunder", and any other words of
similar import refer to this Agreement as a whole and not to any particular
paragraph, subparagraph or other subdivision of this Agreement unless
specifically noted otherwise in this Agreement.
(5) As used herein, the word "include(s)" means "include(s), without
limitation," and the word "including" means "including, but not limited to." In
addition, all references herein to "expenses" or "costs and expenses" shall be
deemed to include all reasonable attorneys' fees (including those incurred in
connection with any appellate proceedings), paralegal fees, court costs,
accountants' fees, and all costs and expenses incidental to any of the
foregoing, however arising or occurring.
(6) The title of this Agreement and the headings of the paragraphs of this
Agreement are for convenience of reference only, and are not to be considered a
part hereof, and shall not limit or expand or otherwise affect any of the terms
hereof.
(7) This Agreement creates a continuing obligation and the obligation of
Indemnitor hereunder shall be binding upon Indemnitor and its successors and
assigns and shall inure to the benefit of and be enforceable by Lender and its
successors and assigns.
(8) This Agreement may be executed in any number of counterparts, each of which
shall be an original but all of which together shall constitute one Agreement.
This Agreement may also be executed and delivered by facsimile signature, which
facsimile signature shall for all purposes be and constitute an original
signature.
(9) This Agreement shall survive the repayment of the Loan and the release of
any or all of the Collateral and the WWG 401 Guaranty Collateral.
(10) The terms and provisions of this Agreement and all of Indemnitor's
obligations hereunder shall not in any way be limited by the limitation of
liability provisions set forth in Section 12.1 of the Loan Agreement or in the
Joinder attached to the Loan Agreement.
(11) INDEMNITOR AND LENDER HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY
WAIVE THE RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON,
ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENTS CONTEMPLATED TO BE EXECUTED IN CONJUNCTION HEREWITH, OR ANY COURSE OF
CONDUCT, COURSE OF DEALINGS, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS
OF EITHER PARTY OR ANY EXERCISE BY ANY PARTY OF THEIR RESPECTIVE RIGHTS UNDER
THE LOAN DOCUMENTS OR IN ANY WAY RELATING TO THE LOAN, THE WWG 401 GUARANTY, THE
PROPERTIES OR THE GATEWAY TOWER PROPERTY (INCLUDING ANY ACTION TO RESCIND OR
CANCEL THIS AGREEMENT, AND ANY CLAIMS OR DEFENSES ASSERTING THAT THIS AGREEMENT
WAS FRAUDULENTLY INDUCED OR IS OTHERWISE VOID OR VOIDABLE); THIS WAIVER BEING A
MATERIAL INDUCEMENT FOR LENDER TO ACCEPT THIS AGREEMENT.
IN WITNESS WHEREOF, Indemnitor has duly executed this Agreement as of the
day and year first above written
Signed, sealed and WHITEHALL STREET REAL ESTATE LIMITED PARTNERSHIP V,
delivered in the a Delaware limited partnership
presence of:
By: WH Advisors, L.L.C. V, a Delaware limited
liability company, general partner
/s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxx Xxxx
--------------------- ---------------------
Printed Name: Xxxxxx X. Xxxxxxx Xxxx Xxxx
Vice President
[Printed Name and Title]
Signed, sealed and WHITEHALL STREET REAL ESTATE LIMITED PARTNERSHIP VI,
delivered in the a Delaware limited partnership
presence of:
By: WH Advisors, L.L.C. VI, a Delaware limited
liability company, general partner
/s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxx Xxxx
--------------------- ---------------------
Printed Name: Xxxxxx X. Xxxxxxx Xxxx Xxxx
Vice President
[Printed Name and Title]
Signed, sealed and WHITEHALL STREET REAL ESTATE LIMITED PARTNERSHIP VII
delivered in the a Delaware limited partnership
presence of:
By: WH Advisors, L.L.C. VII, a Delaware limited
liability company, general partner
/s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxx Xxxx
--------------------- ---------------------
Printed Name: Xxxxxx X. Xxxxxxx Xxxx Xxxx
Vice President
[Printed Name and Title]
Signed, sealed and WHITEHALL STREET REAL ESTATE LIMITED PARTNERSHIP VIII,
delivered in the a Delaware limited partnership
presence of:
By: WH Advisors, L.L.C. VIII, a Delaware limited
liability company, general partner
/s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxx Xxxx
--------------------- ---------------------
Printed Name: Xxxxxx X. Xxxxxxx Xxxx Xxxx
Vice President
[Printed Name and Title]
Signed, sealed and WHITEHALL STREET REAL ESTATE LIMITED PARTNERSHIP XI,
delivered in the a Delaware limited partnership
presence of:
By: WH Advisors, L.L.C. XI, a Delaware limited
liability company, general partner
/s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxx Xxxx
--------------------- ---------------------
Printed Name: Xxxxxx X. Xxxxxxx Xxxx Xxxx
Vice President
[Printed Name and Title]
Signed, sealed and WHITEHALL STREET REAL ESTATE LIMITED PARTNERSHIP XII,
delivered in the a Delaware limited partnership
presence of:
By: WH Advisors, L.L.C. XII, a Delaware limited
liability company, general partner
/s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxx Xxxx
--------------------- ---------------------
Printed Name: Xxxxxx X. Xxxxxxx Xxxx Xxxx
Vice President
[Printed Name and Title]
Signed, sealed and WELLSFORD REAL PROPERTIES, INC., a Maryland corporation
delivered in the
presence of:
/s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxxx Xxxxxxxxx
--------------------- ---------------------
Printed Name: Xxxxxx X. Xxxxxxx Xxxxxx Xxxxxxxxx
President
[Printed Name and Title]
ACKNOWLEDGMENT
STATE OF __________________ )
) ss:
COUNTY OF ________________ )
The foregoing instrument was acknowledged before me this _____ day of
June, 2001, by ____________________________________________, as
___________________________ of WH Advisors, L.L.C. V, a Delaware limited
liability company, the general partner of Whitehall Street Real Estate Limited
Partnership V, a Delaware limited partnership, on behalf of said limited
partnership. He/She is personally known to me or has produced a driver's license
as identification.
---------------------------------
---------------------------------
Printed Name of Notary Public
My commission expires: _________________ (Seal)
ACKNOWLEDGMENT
STATE OF __________________ )
) ss:
COUNTY OF ________________ )
The foregoing instrument was acknowledged before me this _____ day of
June, 2001, by ____________________________________________, as
___________________________ of WH Advisors, L.L.C. VI, a Delaware limited
liability company, the general partner of Whitehall Street Real Estate Limited
Partnership VI, a Delaware limited partnership, on behalf of said limited
partnership. He/She is personally known to me or has produced a driver's license
as identification.
---------------------------------
---------------------------------
Printed Name of Notary Public
My commission expires: _________________ (Seal)
ACKNOWLEDGMENT
STATE OF __________________ )
) ss:
COUNTY OF ________________ )
The foregoing instrument was acknowledged before me this _____ day of
June, 2001, by ____________________________________________, as
___________________________ of WH Advisors, L.L.C. VII, a Delaware limited
liability company, the general partner of Whitehall Street Real Estate Limited
Partnership VII, a Delaware limited partnership, on behalf of said limited
partnership. He/She is personally known to me or has produced a driver's license
as identification.
---------------------------------
---------------------------------
Printed Name of Notary Public
My commission expires: _________________ (Seal)
ACKNOWLEDGMENT
STATE OF __________________ )
) ss:
COUNTY OF ________________ )
The foregoing instrument was acknowledged before me this _____ day of
June, 2001, by ____________________________________________, as
___________________________ of WH Advisors, L.L.C. VIII, a Delaware limited
liability company, the general partner of Whitehall Street Real Estate Limited
Partnership VIII, a Delaware limited partnership, on behalf of said limited
partnership. He/She is personally known to me or has produced a driver's license
as identification.
---------------------------------
---------------------------------
Printed Name of Notary Public
My commission expires: _________________ (Seal)
ACKNOWLEDGMENT
STATE OF __________________ )
) ss:
COUNTY OF ________________ )
The foregoing instrument was acknowledged before me this _____ day of
June, 2001, by ____________________________________________, as
___________________________ of WH Advisors, L.L.C. XI, a Delaware limited
liability company, the general partner of Whitehall Street Real Estate Limited
Partnership XI, a Delaware limited partnership, on behalf of said limited
partnership. He/She is personally known to me or has produced a driver's license
as identification.
---------------------------------
---------------------------------
Printed Name of Notary Public
My commission expires: _________________ (Seal)
ACKNOWLEDGMENT
STATE OF __________________ )
) ss:
COUNTY OF ________________ )
The foregoing instrument was acknowledged before me this _____ day of
June, 2001, by ____________________________________________, as
___________________________ of WH Advisors, L.L.C. XII, a Delaware limited
liability company, the general partner of Whitehall Street Real Estate Limited
Partnership XII, a Delaware limited partnership, on behalf of said limited
partnership. He/She is personally known to me or has produced a driver's license
as identification.
---------------------------------
---------------------------------
Printed Name of Notary Public
My commission expires: _________________ (Seal)
ACKNOWLEDGMENT
STATE OF __________________ )
) ss:
COUNTY OF ________________ )
The foregoing instrument was acknowledged before me this _____ day of
June, 2001, by ____________________________________________, as
___________________________ of Wellsford Commercial Properties, Inc., a Maryland
corporation, on behalf of said corporation. He/She is personally known to me or
has produced a driver's license as identification.
---------------------------------
---------------------------------
Printed Name of Notary Public
My commission expires: _________________ (Seal)
