Exhibit 10.5
REAFFIRMATION OF GUARANTY AND INDEMNITY AGREEMENTS
THIS REAFFIRMATION OF GUARANTY AND INDEMNITY AGREEMENTS (this
"Agreement") dated as of June 28, 1999 is made by THE J. XXXX GROUP, INC. (f/k/a
DM Management Company), a Delaware corporation with a mailing address at 00
Xxxxxxxxxx Xxxx Xxxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000 ("DM"), and by BIRCH POND
REALTY CORPORATION, a Delaware corporation (doing business in the State of New
Hampshire as BPRC), with a principal place of business at 000 Xxxxx Xxxx Xxxxx,
Xxxxxx, Xxx Xxxxxxxxx 00000 ("BIRCH POND"; DM and Birch Pond are each an
"INDEMNITOR" and collectively, "INDEMNITORS"), in favor of XXXX XXXXXXX REAL
ESTATE FINANCE, INC., a Delaware corporation, having its principal place of
business at Xxxx Xxxxxxx Xxxxx, X-00, 000 Xxxxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000 ("JHREF").
WITNESSETH:
WHEREAS, JHREF has extended a Loan (the "LOAN") to Birch Pond in the
original principal amount of $12,000,000.00; and
WHEREAS, to evidence the Loan, JHREF is the holder of a certain
Mortgage Note (the "NOTE") secured by, inter alia, a certain Mortgage,
Assignment of Leases and Rents and Security Agreement dated March 1, 1999, by
Birch Pond to JHREF, and recorded in the Xxxxxxx County Registry of Deeds in
Book 1518 at Page 0596 (the "MORTGAGE"), as modified by a First Modification of
Mortgage, Assignment of Leases and Rents and Security Agreement of even date
herewith, by and between Birch Pond and JHREF, a copy of which is attached
hereto as EXHIBIT A and made a part hereof (the "FIRST MODIFICATION AGREEMENT");
and
WHEREAS, as additional consideration for the Loan as evidenced by the
Note, the Indemnitors have entered into a certain Indemnity Agreement dated
March 1, 1999, by and among Indemnitors and JHREF; and
WHEREAS, as additional consideration for the Loan as evidenced by the
Note, DM, as guarantor, has entered into a certain Guaranty Agreement made in
favor of JHREF, and dated March 1, 1999; and
WHEREAS, JHREF is contemporaneously herewith releasing certain of the
Mortgaged Property (as defined in the Mortgage) pursuant to JHREF's execution
and delivery to Birch Pond of a certain Partial Release of even date herewith, a
copy of which is attached hereto as EXHIBIT B and made a part hereof;
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Indemnitors hereby agree and
covenant for the benefit of JHREF as follows:
1. ACKNOWLEDGMENT AND CONSENT. Indemnitors acknowledge that each of them has
received and reviewed a copy of the First Modification Agreement and the Partial
Release (collectively, the "DOCUMENTS") and each consents to the terms and
conditions of the Documents.
2. REAFFIRMATION BY INDEMNITORS. Indemnitors hereby ratify, confirm
and reaffirm Indemnitors' obligations, representations, warranties, covenants,
agreements and waivers contained in the Indemnity Agreement, agree that the
Documents have no affect whatsoever on such obligations, representations,
warranties, covenants, agreements or waivers, and further represent and warrant
to JHREF that Indemnitors have no defenses to, or claims, charges or set-offs
against, such obligations, representations, warranties, covenants, agreements or
waivers.
3. REAFFIRMATION BY DM. DM hereby reaffirms its obligations,
representations, warranties, covenants, agreements and waivers contained in the
Guaranty Agreement, agree that the Documents have no affect whatsoever on such
obligations, representations, warranties, covenants, agreements or waivers, and
further represents and warrants to JHREF that DM has no defenses to, or claims,
charges or set-offs against, such obligations, representations, warranties,
covenants, agreements or waivers.
4. COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall be deemed an original, but all of which, when taken together,
shall be deemed one and the same agreement.
5. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the
Indemnitors and their respective successors and assigns and shall inure to the
benefit of and be enforceable by JHREF and its successors and assigns.
IN WITNESS WHEREOF, the Indemnitors have duly executed this Agreement
as of the date first hereinabove mentioned.
THE J. XXXX GROUP, INC. (f/k/a DM
Management Company), a Delaware corporation
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Chief Financial Officer
BIRCH POND REALTY CORPORATION, a
Delaware corporation
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Treasurer and Secretary
