INDEMNITY REGARDING GUARANTY OBLIGATIONS
This Indemnity Regarding Guaranty Obligations ("INDEMNITY") is made as of June
25, 2001 by and between WELLSFORD/WHITEHALL HOLDINGS, L.L.C., a Delaware limited
liability company ("BORROWER"), and WWG 401 NORTH WASHINGTON LLC, a Delaware
limited liability company (the "GATEWAY OWNER"), with reference to the following
recitals of fact:
RECITALS
1. General Electric Capital Corporation, a New York corporation ("LENDER"), has
agreed to make a loan of up to $352,600,000 (the "LOAN") to Borrower in
accordance with that certain Loan Agreement dated as of the date hereof (the
"LOAN AGREEMENT") by and between Lender and Borrower. The Loan will be
guarantied by Gateway Owner pursuant to a Guaranty of even date herewith
executed by Gateway Owner in favor of Lender (the "GUARANTY"), subject to the
terms, conditions and limitations set forth therein. Gateway Owner's obligations
under the Guaranty will be secured by, among other things, a deed of trust which
will encumber, and certain other collateral documents which relate to, that
certain real property owned by the Gateway Owner commonly referred to as Gateway
Tower, which is located at 000 Xxxxx Xxxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx (the
"GATEWAY PROPERTY"). A portion of the Loan proceeds will be used to refinance
certain indebtedness which is secured by the Gateway Property, and to pay for
certain future capital expenditures, tenant improvement costs and other leasing
costs incurred in connection with the Gateway Property.
2. The Gateway Owner has agreed to guaranty the Loan and to secure its
obligations under the Guaranty with a lien on the Gateway Property and related
personalty in consideration of the substantial benefits which the Gateway Owner
will derive from the Loan. In consideration of the benefits derived by Borrower
from the Gateway Owner's agreement to provide the Guaranty and to secure its
obligations under the Guaranty with a lien on the Gateway Property, the Borrower
has agreed to provide certain indemnifications to the Gateway Owner associated
with the Loan.
NOW, THEREFORE, in consideration of the premises and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
AGREEMENT
1. Borrower agrees to indemnify, defend and hold the Gateway Owner harmless from
and against any and all amounts (whether in the form of cash, real or personal
property or proceeds therefrom, or otherwise) received by Lender in respect of
the Guaranty or its lien on the Gateway Property (or any other collateral given
by the Gateway Owner to secure the Guaranty or the Loan) to the extent such
amounts exceed the sum of the Loan funds disbursed to repay the existing
indebtedness secured by the Gateway Property plus the Loan funds disbursed to
pay for capital expenditures, tenant improvement costs and other leasing costs
incurred in connection with the Gateway Property.
2. In the event of any dispute under this Indemnity which results in a lawsuit
by any party, the losing party shall pay the reasonable legal costs of the other
party.
3. If any provision or part of any provision this Indemnity shall for any reason
be held invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provisions or the
remaining part of any effective provisions of this Indemnity, and this Indemnity
shall be construed as if such invalid, illegal or unenforceable provision or
part thereof had never been contained herein, but only to the extent of its
invalidity, illegality or unenforceabililty.
4. This Indemnity shall inure to the benefit of and be enforceable by the
Gateway Owner and its successors and assigns, and shall be binding upon and
enforceable against the Borrower and the Borrower's successors and assigns.
5. All present and future obligations of Borrower to Gateway Owner arising
hereunder shall at all times be subject and subordinate in all respects to all
present and future obligations of Borrower to Lender, and Gateway Owner shall
have no right to seek recovery against Borrower or any of its assets for
obligations arising hereunder until the full, cash repayment of the Loan and all
other obligations of Borrower to Lender. Lender shall be an express, third party
beneficiary of this paragraph, which shall not be amended, modified, terminated
or waived without Lender's prior, written consent.
6. This Indemnity and the rights and obligations of the Borrower and Gateway
Owner hereunder shall in all respects be governed by, and construed in
accordance with, the laws of the State of New York, without regard to the
conflicts of laws rules of that State.
7. This Indemnity may be executed in any number of counterparts, each of which
shall be considered an original and all of which, taken together, shall
constitute one and the same instrument.
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IN WITNESS WHEREOF, Borrower and Gateway Owner have executed this Indemnity as
of the date first written above.
BORROWER:
WELLSFORD/WHITEHALL HOLDINGS, L.L.C., a Delaware limited
liability company
By: Wellsford/Whitehall Properties II, L.L.C., a Delaware
limited liability company, its managing member
By: Wellsford/Whitehall Group, L.L.C., a Delaware
limited liability company, its sole member
By: WP Commercial, L.L.C., a Delaware limited
liability company, its manager
By: /s/ Xxxx Xxxx
-------------
Name: Xxxx Xxxx
Title: Authorized Signatory
GATEWAY OWNER:
WWG 401 NORTH WASHINGTON LLC, a Delaware limited liability
company
By: Wellsford/Whitehall Holdings, L.L.C., a Delaware limited
liability company
By: Wellsford/Whitehall Properties II, L.L.C., a
Delaware limited liability company, its managing
member
By: Wellsford/Whitehall Group, L.L.C., a Delaware
limited liability company, its sole member
By: WP Commercial, L.L.C., a Delaware
limited liability company, its manager
By: /s/ Xxxx Xxxx
-------------
Name: Xxxx Xxxx
Title: Authorized Signatory
