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EXHIBIT 10-27
INDEMNIFICATION AGREEMENT
This INDEMNIFICATION AGREEMENT is made as of the 31st day of May, 2002 by
and among GENESEE CORPORATION, a New York corporation having an office at 00
Xxxx Xxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, Xxx Xxxx 00000 ("Genesee"), XXXXXX
XXXXXXXXX, residing at 0000 00xx Xxxxxxx, Xxxxxxxx, Xxx Xxxx 00000, XXXXXX X.
XXXXXXXXX, residing at 0000 00xx Xxxxxxx, Xxxxxxxx, Xxx Xxxx 00000, and HOME
LEASING CORPORATION, a New York corporation having an office at 000 Xxxxxxx
Xxxxxx, Xxxxxxxxx, Xxx Xxxx 00000 (Xxxxxx Xxxxxxxxx, Xxxxxx X. Xxxxxxxxx and
Home Leasing Corporation, are hereinafter collectively referred to as
"Indemnitors").
RECITALS:
A. The Indemnitors each have a business interest, direct or indirect, in
Clinton Asset Holding Associates, L.P. ("CAHA") and Clinton Broad Street
Associates, L.P. ("CBSA"), and have each been involved in some capacity in the
development, construction, management, and/or financing of a fourteen story
office building in Rochester, New York known as Clinton Square (the "Project").
B. On or about September 25, 1997, the Chase Manhattan Bank, N.A.
("Chase") made a term loan to CBSA in the amount of $5,500,000 (the "Gap Loan")
as part of the restructuring of the financing on the Project, including, the
acquisition of the fee interest in the land upon which the Project is
constructed.
C. In connection with, and as a condition of entering into the Gap Loan,
Chase required that Genesee execute and deliver its corporate limited guarantee
of the Gap Loan, under which Genesee's liability was limited to $2,750,000 (the
"Gap Loan Guarantee").
D. Genesee's wholly-owned subsidiary, Genesee Ventures, Inc. ("GVI") is
the holder of that certain Amended and Restated Note A dated February 17, 1999
in the original principal amount of $2,877,510.16 made by CBSA in favor of GVI
("Note A").
E. Pursuant to that certain Transfer Agreement dated as of May 31, 2002
between GVI, as seller, and Indemnitors, as buyer (the "Transfer Agreement"),
GVI is transferring all of its right, title and interest in and to Note A to
Home Leasing Corporation, a New York corporation ("Assignee").
F. GVI requires, as an inducement to transfer all of its right, title and
interest in and to Note A to Assignee, a total indemnification by the
Indemnitors for any liabilities arising out of the Gap Loan Guarantee or Genesee
making the Guarantee Advances (as hereinafter defined).
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F. GVI's wholly-owned subsidiary, Genesee Rochester Properties, Inc., a
New York corporation ("GRP") is the general partner of CBSA and GVI's
wholly-owned subsidiary, Genesee Rochester Properties II, Inc., a New York
corporation ("GRP II") is the general partner of CAHA.
G. Assignee requires, in connection with the assignment of the economic
interests of GRP and GRPII as general partners in CBSA and CAHA, respectively,
that (i) GRP gives its proxy to vote its general partner interest in CBSA to 000
Xxxxx Xxxxxx, Inc., a New York corporation and (ii) that GRPII gives its proxy
to vote its general partner interest in CAHA to CS Broad Street, Inc.
H. GRP and GRP II requires, as an inducement to grant the aforementioned
proxies, a total indemnification by the Indemnitors for any and all liabilities
arising out of their respective interests as general partners of CBSA and CAHA
(the "General Partnership Interests").
NOW, THEREFORE, in consideration of One and No/100 Dollars ($1.00), and
for other good and valuable consideration, the mutual receipt and sufficiency of
which is hereby acknowledged, the parties hereto covenant and agree as follows:
1. In the event that Genesee receives notice of an event of a default on
the Gap Loan or any Loan Documents evidencing or securing the Gap Loan (and
after any applicable notice period or period to cure) and a subsequent demand
for payment by Chase pursuant to the Gap Loan Guarantee, it will send a notice
of such event (a "Guarantee Event") to the Indemnitors at the address noted
above and the Indemnitors shall promptly pay, on a joint and several basis, the
amounts properly due and payable to the full extent of Genesee's liability under
the Gap Loan Guarantee. Notwithstanding the foregoing, in the event Genesee
receives notification of a Guarantee Event, then Genesee may elect to pay the
amounts properly due and payable to the full extent of its liability under the
Gap Loan Guarantee. Any amounts so advanced by Genesee pursuant to the Gap Loan
Guarantee is hereinafter called the "Guarantee Advances".
2. In the event Genesee elects to make Guarantee Advances, Genesee shall
have the absolute right of joint and several contribution from each of the
Indemnitors for the Guarantee Advances and none of the Indemnitors shall assert,
as against Genesee, any defense of relative contribution. Notwithstanding the
foregoing, the Indemnitors reserve, as among themselves, all legal and equitable
rights of contribution and subrogation.
3. Each of the Indemnitors hereby, jointly and severally, agrees to
unconditionally indemnify and hold Genesee, any subsidiary or affiliated
corporation (including, but not limited to, GVI, GRP and GRPII), limited
partnership or limited liability company, and any officer, director, principal,
manager, member, employee, or agent of any of the foregoing entities (each an
"Indemnified Party" and collectively, the "Indemnified Parties"), harmless from
any and all losses, suits, damages, expenses, claims, liabilities, obligations,
penalties, litigation, demands, proceedings, disbursements or costs, including,
but not limited to, attorney's fees, expenses and
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disbursements), of any kind or nature whatsoever relating to, resulting from, or
arising out of the Gap Loan Guarantee, Genesee making the Guarantee Advances to
the same extent and on the same terms as if it had executed the Gap Loan
Guarantee on a joint and several basis, and/or, from and after the date hereof,
the General Partnership Interests. The Indemnitors hereby agree that each may
assert equitable rights of contribution as against each other after full payment
by any of them to Genesee hereunder, but each of the Indemnitors waives any and
all rights to assert any defense of any kind or nature whatsoever against the
Indemnified Parties, including, but not limited to a defense of contribution or
offset.
4. In the event any of the Indemnified Parties elects to employ an
attorney to enforce the provisions of this Indemnification Agreement, or is
required to commence legal proceedings to enforce the provisions of this
Indemnification Agreement, such Indemnified Party shall be entitled to recover
attorneys' fees and court costs incurred in connection with such enforcement,
including, but not limited to, collection agency fees, attorney litigation fees,
suit fees and the costs of investigation and litigation.
5. All remedies available to the Indemnified Parties for one or more
breaches by any of the Indemnitors shall be deemed cumulative and may be
exercised separately or concurrently without waiver of any other remedies. The
failure on the part of any of the Indemnified Parties to act on a breach of this
Indemnification Agreement shall not be deemed a waiver of such breach or a
waiver of future breaches, unless such waiver shall be in writing and signed by
the party against whom enforcement is sought.
6. This Indemnification Agreement is entered into by the Indemnitors in
consideration for Genesee agreeing to permit GVI to execute and deliver the
Transfer Agreement, with the understanding that, except for the undertakings
contained in this Agreement, Genesee would have been unwilling to permit GVI to
enter into the Transfer Agreement.
7. This Indemnification Agreement is supplemental to, and not in
replacement of, that certain Guarantee Contribution and Indemnification
Agreement dated as of September 25, 1997 by and among Genesee Corporation, a New
York corporation, Xxxxxxxx X. Xxxxxxx, Xxxxxx Xxxxxxxxx, Xxxxxx X. Xxxxxxxxx and
Home Leasing Corporation, a New York corporation.
8. This Indemnification Agreement shall be interpreted and construed
according to its fair meaning and neither for nor against any party hereto
irrespective of which party caused the same to be drafted. Each of the parties
acknowledges that it has been or has had the opportunity to be represented by an
attorney in connection with the preparation and execution of this
Indemnification Agreement.
9. This Indemnification Agreement shall be interpreted, construed and
enforced in accordance with and governed by the internal laws of the State of
New York without reference to the principles of conflicts of laws.
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10. This Indemnification Agreement may not be modified, amended or
terminated nor may any of its provisions be waived except by an agreement in
writing signed by the party against whom enforcement of any such modification,
amendment, termination or waiver is sought, and then such modification,
amendment, termination or waiver shall be effective only in the specific
instance and for the specific purpose for which given.
11. Subject to the terms and conditions hereof, the covenants, agreements,
terms, provisions and conditions contained in this Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
distributees, heirs, legal representatives, successors and assigns except that
the Indemnitors may not assign their obligations hereunder or any interest
herein, directly or indirectly, by operation of law or otherwise, without the
prior written consent of Genesee.
12. This Indemnification Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute but one and the same instrument and shall be binding
upon each of the undersigned as fully and completely as if all had signed the
same instrument.
IN WITNESS WHEREOF, the parties hereto, individually or by their duly
authorized officers, have executed this Indemnification Agreement as of the day
and year first above written.
GENESEE CORPORATION, HOME LEASING CORPORATION,
a New York corporation a New York corporation
By: /s/ Xxxx X. Xxxxxx By: /s/ Xxxxxx Xxxxxxxxx
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Xxxx X. Xxxxxx Xxxxxx Xxxxxxxxx
Senior Vice President Chairman
/s/ Xxxxxx Xxxxxxxxx
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XXXXXX XXXXXXXXX
/s/ Xxxxxx X. Xxxxxxxxx
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XXXXXX X. XXXXXXXXX
