Exhibit 10.8
LOAN NO. C-337112,
C-337153 AND C-337154
FRAUDULENT CONVEYANCE INDEMNITY AGREEMENT
THIS FRAUDULENT CONVEYANCE INDEMNITY AGREEMENT (this "Agreement") is
given as of December 28, 2004, by BIMOMED REALTY TRUST, INC., a Maryland
corporation, ("Indemnitor") in favor of THE NORTHWESTERN MUTUAL LIFE INSURANCE
COMPANY, a Wisconsin corporation ("Lender").
R E C I T A L S
A. Lender has agreed to extend a certain loan (the "Loan") to BMR -
Bayshore Boulevard LLC, a Delaware limited liability company, BMR - 0000 Xxxxx
Xxxxxx Xxxxx LLC, a Delaware limited liability company and BMR - 0000 Xxxxx
Xxxxx Xxxxxxx LLC, a Delaware limited liability company (each a "Borrower" and
collectively, "Borrowers"), all as described in that certain Master Loan
Agreement of even date herewith among Borrowers and the Lender (the "Master Loan
Agreement").
B. All capitalized terms used herein and not expressly defined
herein shall have the meaning ascribed to them in the Master Loan Agreement.
C. The Loan will be secured by, among other things, those certain
Lien Instruments executed by Borrowers with respect to the real and/or personal
property described in such Lien Instruments.
D. Each Borrower is owned 100% by BioMed Realty, L.P., of which
Indemnitor is the general partner and a limited partner.
E. As a condition to extending the Loan to Borrowers, Lender has
required that Indemnitor execute this Agreement.
NOW, THEREFORE, with reference to the foregoing Recitals, which are
hereby incorporated herein and made a part of this Agreement, and for other good
and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, Indemnitor hereby agrees as follows:
1. INDEMNITY. Indemnitor hereby agrees to indemnify, defend and hold
Lender and any successor to Lender under the Loan Documents harmless from and
against any and all claims, actions, liabilities, damages, losses, awards,
payments, costs and expenses (including, without limitation, reasonable costs of
investigation and
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reasonable attorneys' fees) which arise out of or relate to claims, demands or
assertions that the obligations incurred by, or the conveyance of security
interests in properties of, Borrowers (or any of them) under the Loan Documents
were fraudulent conveyances or should be deemed void pursuant to any other
principles limiting the rights of creditors, whether such claims, demands or
assertions are made under the United States Bankruptcy Code (as amended or
replaced from time to time), including, without limitation, under Sections 544
or 548 thereof, or under any applicable state fraudulent conveyance statutes or
similar laws.
2. EXERCISE OF REMEDIES. No failure on the part of Lender to
exercise and no delay in exercising any right or remedy hereunder, at law or in
equity, shall operate as a waiver thereof; nor shall Lender be estopped to
exercise any such right or remedy at any future time because of any such failure
or delay; nor shall any single or partial exercise of any such right or remedy
preclude any other or further exercise of such right or remedy or the exercise
of any other right or remedy. No waiver of any provision of this Agreement nor
consent to any departure by Indemnitor therefrom shall in any event be 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. No notice to or demand on Indemnitor shall in any case
entitle Indemnitor to any other or further notice or demand in similar or other
circumstances.
3. NO WAIVER. This Agreement is not intended to be, and shall not be
construed to be, a guaranty, but rather is intended to constitute the primary
obligation of Indemnitor. Without limiting or lessening the primary liability of
Indemnitor hereunder, Lender may, without notice to Indemnitor,
(a) grant extensions of time or any other indulgences on the Loan and
related obligations;
(b) take, give up, modify, vary, exchange, renew or abstain from
perfecting or taking advantage of any security for the Loan and
related obligations; and
(c) accept or make compositions or other arrangements with Borrowers
under the Loan Documents, realize on any security, and otherwise
deal with Borrowers and other parties and security as Lender may
deem expedient; and
Indemnitor hereby waives any right to require Lender:
(d) to proceed against Borrowers or any other party or to proceed
against or apply any security it may hold for the Loan or otherwise,
before proceeding against Indemnitor;
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(e) to require Lender to pursue any other remedy for the benefit of
Indemnitor.
Lender may, at its election, foreclose upon any security held by it in one or
more judicial or non-judicial sales without affecting or impairing the liability
of Indemnitor, whether or not the indebtedness evidenced by the Loan Documents
shall have been paid in full. Indemnitor waives all rights or defenses arising
out of any election of remedies by Lender, notwithstanding that such election
may operate to impair or extinguish any right or remedy of Indemnitor against
Borrowers or any other security.
By executing this Agreement, Indemnitor acknowledges that its
liability hereunder shall survive the dissolution of any or all of the
Borrowers.
4. GOVERNING LAW. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of California without giving effect to
the conflict of law principles of said State.
5. ATTORNEYS' FEES. If Lender or any party to this Agreement
commences litigation for the interpretation, enforcement, termination,
cancellation or rescission of this Agreement, or for damages for the breach of
this Agreement, the prevailing party in such action shall be entitled to its
reasonable attorneys' fees, including appeals, and court and other costs
incurred, to be paid by the losing party as fixed by the court or in a separate
action brought for that purpose.
6. NOTICES. All notices or other communications hereunder shall be
in writing and shall be deemed to have been properly given (i) upon delivery, if
delivered in person, (ii) one business day after having been deposited for
overnight delivery with Federal Express or another comparable overnight courier
service, or (iii) three business days after having been deposited in any post
office or mail depository regularly maintained by the U.S. Postal Service and
sent by registered or certified mail, postage prepaid, addressed as follows:
If to Indemnitor: BioMed Realty Trust, Inc.
Attn: Xxxx X. Xxxxxxxx
00000 Xxxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
If to Lender: The Northwestern Mutual Life Insurance Company
Attn: Real Estate Investment Department
000 X. Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
RE: Loan Nos. 337112; 337153; 337154
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and Northwestern Investment Management Company, LLC
Attn: Regional Manager
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
RE: Loan Nos.337112; 337153; 337154
or addressed as such party may from time to time designate by written
notice to the other parties.
IN WITNESS WHEREOF, Indemnitor has caused this Agreement to be
executed as of the day and year first above written.
INDEMNITOR:
BIOMED REALTY TRUST, INC.,
a Maryland corporation
By: /s/ Xxxx X. Xxxxxxxx
---------------------------------------
Xxxx X. Xxxxxxxx
Executive Vice President
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