EXHIBIT 10.39
INDEMNITY AND GUARANTY AGREEMENT
THIS INDEMNITY AND GUARANTY AGREEMENT (this "AGREEMENT"), made as of
the 25th day of August, 2006, by OLD LINE BANCSHARES, INC., a Maryland
corporation, having an address at 0000 Xxxxxxx Xxxxx Xxxxx, 0xx Xxxxx, Xxxxx,
Xxxxxxxx 00000 ("Old Line") and by X. XXXX, INC., a Virginia corporation, having
an address at 0000 Xxxxxxx Xxxxx Xxxxx, Xxxxx 000, Xxxxx, Xxxxxxxx 00000 ("Web")
and by XXXXXXX ENTERPRISES INCORPORATED, a Maryland corporation, having an
address at 0000 Xxxxxxx Xxxxx Xxxxx, Xxxxx 000, Xxxxx, Xxxxxxxx 00000
("Xxxxxxx"; Old Line, Xxxx and Xxxxxxx being referred to herein collectively as
"Indemnitor") in favor of PRUDENTIAL MORTGAGE CAPITAL COMPANY, LLC, having an
address at 000 Xxxxxxxx Xxxxxx, 0xx Xxxxx, Xxxxxxx Center Four, Newark, New
Jersey 07102-4069 ("LENDER").
WITNESSETH:
WHEREAS, Pointer Ridge Office Investment, LLC ("BORROWER"), has
obtained a loan in the principal amount of SIX MILLION SIX HUNDRED TWENTY
THOUSAND and 00/100 DOLLARS ($6,620,000.00) Dollars (the "LOAN") from Lender;
and
WHEREAS, the Loan is evidenced by an Amended and Restated Promissory
Note dated of even date herewith (the "NOTE"), executed by Borrower and payable
to the order of Lender in the stated principal amount of the Loan and is secured
by an Amended and Restated Deed of Trust and Security Agreement dated of even
date herewith (the "SECURITY INSTRUMENT") from Borrower, as grantor, to Lender,
as beneficiary, encumbering that certain real property situated in the City of
Bowie, Prince George's County, State of Maryland, as more particularly described
on Exhibit A attached hereto and incorporated herein by this reference, together
with buildings, structures and other improvements being hereinafter collectively
referred to as the "SECURITY PROPERTY") and by other documents and instruments
(the Note, the Security Instrument and such other documents and instruments
evidencing and/or securing the Loan, as the same may from time to time be
amended, consolidated renewed or replace, being collectively referred to herein
as the "LOAN DOCUMENTS") and
WHEREAS, as a condition to making the Loan to Borrower, Lender has
required that Indemnitor indemnify Lender from and against and guarantee payment
to Lender of those items for which Borrower is personally liable and for which
Lender has recourse against Borrower under the terms of the note and the
Security Instrument; and
WHEREAS, each of the parties comprising Indemnitor is the holder of a
direct or indirect beneficial interest in Borrower, the extension of the Loan to
Borrower is of substantial benefit to Indemnitor and therefore, Indemnitor
desires to indemnify Lender from and against and guarantee payment to Lender of
those items for which Borrower is personally liable and for which Lender has
recourse against Borrower under the terms of the Note and the Security
Instrument.
NOW, THEREFORE, to induce Lender to extend the Loan to Borrower and in
consideration of the foregoing premises and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Indemnitor covenants and agrees for the benefit of Lender, as follows:
1. Indemnity and Guaranty. Indemnitor hereby assumes, liability for, hereby
guarantees payment to Lender of, hereby agrees to pay, protect, defend and save
Lender harmless from and against, and hereby indemnifies Lender from and against
any and all liabilities, obligations, losses, damages, costs, fees, expenses,
claims, demands, settlements, awards and judgments of any nature or description
whatsoever (including, without limitation, legal fees and costs, as well as
other expenses incurred in connection with the defense of any actual or
threatened action, proceeding or claim) (collectively, "COSTS") incurred,
suffered or sustained by Lender resulting from any acts, omissions or alleged
acts or omissions arising out of or relating to, or otherwise arising out of or
relating to, any one or more of the following items:
(a) The misapplication or misappropriation by Borrower of any or all
money collected, paid or received, or to which Borrower is
entitled, relating to the Loan or the Security Property,
including, but not limited to, insurance proceeds, condemnation
awards, lease security and other deposits and rent;
(b) Rents, issues, profits and revenues of all or any portion of the
Security Property received or applicable to a period after the
occurrence of any Event of Default or after any event which, with
the giving of notice and/or the passage of time, would constitute
an event of default under the Loan Documents, which are not
applied to pay first (a) real estate taxes and other charges
which, if unpaid, could result in liens superior to that of the
Security Instrument and (b) premiums on insurance policies
required under the Loan Documents and second, the other oridanry
and necessary expenses of owning and operating the Security
Property;
(c) Waste committed on the Security Property or damage to the
Security Property as a result of intentional misconduct or gross
negligence or the removal of all or any portion of the Security
Property in violation of the terms of the Loan Documents;
(d) Fraud or material misrepresentation or failure to disclose a
material fact (including, without limitation, with respect to any
such fraud, misrepresentation or failure to disclose in any
materials delivered to Lender) by Borrower, Indemnitor or the
applicant under the application for the Loan or by any other
person or entity authorized or apparently authorized to make
statements or representations on behalf of Borrower, Indemnitor
or the Loan applicant in connection with the Loan application,
Loan closing or security of or for the Loan, or otherwise in
connection with the Security Property or the Loan, which personal
liability, notwithstanding any provision in this Section to the
contrary, shall be equal to all sums then outstanding pursuant to
the Loan Documents (including,, but not limited to, principal and
accrued interest) and, to the extent not then outstanding
pursuant to the Loan Documents, any fees, costs, expenses, losses
or damages incurred or suffered by Lender (including, but not
limited to, legal fees and costs) by reason of such fraud,
material misrepresentation or failure to disclose;
(e) The filing of any petition for bankruptcy, reorganization or
arrangement pursuant to state or federal bankruptcy law, or any
similar federal or state law, by any one or more persons or
entities within the Owner Group (other than Borrower or
Indemnitor) against Borrower or any Indemnitor or if any
proceeding seeking the dissolution or liquidation of Borrower or
any Indemnitor shall be commenced by any one or more persons or
entities within the Owner Group (other than Borrower or
Indemnitor). As used herein "Owner Group" means collectively,
Borrower, Indemnitor and any entity or individual which or who,
directly or indirectly owns, controls or holds the power to vote
twenty (20%) percent or more of the voting securities or other
equity interest in Borrower; and/or
(f) The failure by Borrower to maintain its status as a single
purpose and, if applicable, bankruptcy remote entity as required
by the Loan Documents.
Notwithstanding anything to the contrary above or otherwise in the
Loan Documents: in the event that: (A) payment of the first full installment of
the Monthly Payment Amount (as defined in the Note) (together with all reserves
required under the Loan Documents) is mot paid when due; (B) Borrower fails to
obtain Lender's prior written consent to any subordinate financing or other
voluntary lien encumbering the Security Property or direct or indirect interests
in Borrower; (C) Borrower fails to obtain Lender's prior written consent to any
assignment, transfer or conveyance of the Security Property or any portion
thereof or any interest therein or directly or indirectly in Borrower as
required by the Loan Documents; or (D) any petition for bankruptcy,
reorganization or arrangement pursuant to state or federal bankruptcy law, or
any similar federal or state law, shall be filed or consented to, or acquiesced
in by, Borrower or any Indemnitor, or Borrower or any Indemnitor seeks (or
consent to, or acquiesces in) the appointment of a receiver, liquidator or
trustee, or any proceeding for the dissolution or liquidation of Borrower or any
Indemnitor, then (i) the Loan shall be fully recourse to Indemnitor; and
(ii)Lender shall not be deemed to have waived any right which Lender may have
under Section 506(a), 506 (b), 1111(b) or any other provisions of the U.S.
Bankruptcy Code as same may be amended or replaced to file a claim for the full
amount of the Loan or to require that all collateral shall continue to secure
all of the indebtedness owing to Lender in accordance with the Loan Documents.
This is a guaranty of payment and performance and not of collection.
The liability of Indemnitor under this Agreement shall be direct and immediate
and not conditional or contingent upon the pursuit of any remedies against
Borrower or any other person (including, without limitation other guarantors, if
any), nor against the collateral for the Loan. Indemnitor waives any right to
require that an action be brought against Borrower or any other person or to
require that resort be had to any collateral for the Loan or to any balance of
any deposit account or credit on the books of Lender in favor of Borrower or any
other person. In the event, on account of the Bankruptcy Reform Act of 1978, as
amended, or any other debtor relief law (whether statutory,
common law, case law or otherwise) of any jurisdiction whatsoever, now or
hereafter in effect, which may be or become applicable, Borrower shall be
relieved of or fail to incur any debt, obligation or liability as provided in
the Loan Documents, Indemnitor shall nevertheless be fully liable therefore. In
the event of a default under the Loan Documents, which is not cured within any
applicable grace or cure period, Lender shall have the right to enforce its
rights, powers and remedies (including, without limitation, foreclosure of all
or any portion of the collateral for the Loan) thereunder or hereunder, in any
order, and all rights, powers and remedies available to Lender in such event
shall be non-exclusive and cumulative of all other rights, powers and remedies
provided thereunder or hereunder or by law or in equity. If the indebtedness and
obligations guaranteed hereby are partially paid or discharged by reason of the
exercise of any of the remedies available to Lender, this Agreement shall
nevertheless remain in full force and effect, and Indemnitor shall remain liable
for all remaining indebtedness and obligations guaranteed hereby, even though
any rights which Indemnitor may have against Borrower may be destroyed or
diminished by the exercise of any such remedy.
2. Indemnification Procedures
(a) If any action shall be brought against Lender based upon any of
the matters for which Lender is indemnified hereunder, Lender
shall notify Indemnitor in writing thereof and Indemnitor shall
promptly assume the defense thereof, including without
limitation, the employment of counsel acceptable to Lender and
the negotiation of any settlement; provided, however, that any
failure of Lender to notify Indemnitor of such matter shall not
impair or reduce the obligations of Indemnitor (which expense
shall be included in Costs), to employ separate counsel in any
such action and to participate in the defense thereof. In the
event Indemnitor shall fail to discharge or undertake to defend
Lender against any claim, loss or liability for which Lender is
indemnified hereunder, Lender may, at its sole option and
election, defend or settle such claim, loss or liability. The
liability of Indemnitor to Lender hereunder shall be conclusively
established by any resulting award, judgment or settlement,
provided that with respect to a settlement made in good faith,
the amount of such liability shall include both the settlement
consideration and the costs and expenses, including, without
limitation, attorneys' fees and disbursements, incurred by Lender
in effecting such settlement. In such event, such settlement
consideration, costs and expenses shall be included in Costs and
Indemnitor shall pay the same as hereinafter provided. Lender's
good faith in any such settlement shall be conclusively
established if the settlement is made on the advise of
independent legal counsel for Lender.
(b) Indemnitor shall not, without the prior written consent of
Lender: (i) settle or compromise any action, suit, proceeding or
claim or consent to the entry of any judgment that does not
include as an unconditional term thereof the delivery by the
claimant or plaintiff to Lender of a full and complete written
release of Lender (in form, scope and substance satisfactory to
Lender in its sole discretion) from all liability in respect of
such action, suit proceeding or claim and a dismissal with
prejudice of such action, suit, proceeding or claim; or (ii)
settle or compromise any action, suit, proceeding or claim in any
manner that may adversely affect Lender or obligate Lender to pay
any sum or perform any obligation as determined by Lender in its
sole discretion.
(c) All Costs shall be immediately reimbursable to Lender when and as
incurred and, in the event of any litigation, claim or other
proceeding, without any requirement of waiting for the ultimate
outcome of such litigation, claim or other proceeding, and
Indemnitor shall pay to Lender any and all Costs within ten (10
days after written notice from Lender itemizing the amounts
thereof incurred to the date of such notice. In addition to any
other remedy available for the failure of Indemnitor to
periodically pay such Costs, such Costs, if not paid within said
ten-day period, shall bear interest at the Default Interest Rate
(as defined in the Note).
3. Reinstatement of Obligations. If at any time all or any part of any
payment made by Indemnitor or received by Lender from Indemnitor under or with
respect to this Agreement is or must be rescinded or returned for any reason
whatsoever (including, but not limited to, the insolvency, bankruptcy or
reorganization of Indemnitor of Borrower), then the obligations of Indemnitor
hereunder shall, to the extent of the payment rescinded or returned, be deemed
to have continued in existence, notwithstanding such previous payment made by
Indemnitor, or receipt of payment by Lender, and the obligations of Indemnitor
hereunder shall continue to be effective or be reinstated, as the case may be,
as to such payment, all as though such previous payment by Indemnitor had never
been made.
4. Waivers by Indemnitor. To the extent permitted by law, Indemnitor hereby
waives and agrees not to assert or take advantage of:
(a) Any right to require Lender to proceed against Borrower or any
other person or to proceed against or exhaust any security held
by Lender at any time or to pursue any other remedy in Lender's
power or under any other agreement before proceeding against
Indemnitor hereunder;
(b) The defense of the statute of limitations in any action
hereunder;
(c) Any defense that may arise by reason of the incapacity, lack of
authority, death or disability of any other person or persons or
the failure of Lender to file or enforce a claim against the
estate (in administration, bankruptcy or any other proceeding) of
any other person or persons;
(d) Demand, presentment for payment notice of nonpayment intent to
accelerate, acceleration, protest, notice of protest and all
other notices of any kind, or the lack of any thereof, including,
without limiting the generality of the foregoing, notice of the
existence, creation or incurring of any new or additional
indebtedness or obligation or of any action or non- action on the
part of Borrower, Lender, any endorser or creditor of Borrower or
of Indemnitor or on the part of any other person whomsoever under
this or any other instrument in connection with any obligation or
evidence of indebtedness held by Lender;
(e) Any defense based upon an election of remedies by Lender;
(f) Any right or claim or right to cause a marshalling of the assets
of Indemnitor;
(g) Any principle or provision of law, statutory or otherwise, which
is or might be in conflict with the terms and provisions of this
Agreement;
(h) Any duty on the part of Lender to disclose to Indemnitor any
facts Lender may now or hereafter know about Borrower or the
Security Property, 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, of the condition of the Security Property and of any
and all circumstances bearing on the risk that liability may be
incurred by Indemnitor hereunder;
(i) Any lack of notice of disposition or of manner of disposition of
any collateral for the Loan;
(j) Any invalidity, irregulatiry or unenforceability, in whole or in
part, of any one or more of the Loan Documents;
(k) Any lack of commercial reasonableness in dealing with the
collateral for the Loan;
(l) Any deficiencies in the collateral for the Loan or any deficiency
in the ability of Lender to collect or to obtain performance from
any persons or entities now or hereafter liable for the payment
and performance of any obligation hereby guaranteed;
(m) Any assertion or claim that the automatic stay provided by 11
U.S. C. Section 362 (arising upon the voluntary or involuntary
bankruptcy proceeding of Borrower) or any other stay provided
under any other debtor relief law (whether statutory, common law,
case law or otherwise) of any jurisdiction whatsoever, now or
hereafter in effect, which may be or become applicable, shall
operate or be interpreted to stay, interdict, condition, reduce
or inhibit the ability of Lender to enforce any of its rights,
whether now or hereafter required, which Lender may have against
Indemnitor or the collateral for the Loan;
(n) Any modification of the Loan Documents or any obligation of
Borrower relating to the Loan by operation of law or by action of
any court, whether pursuant to the Bankruptcy Reform Act of 1978,
as amended, or any other debtor relief law (whether statutory,
common law, case law or otherwise) of any jurisdiction
whatsoever, now or hereafter in effect, or otherwise; and
(o) Any action, occurrence, event or matter consented to by
Indemnitor under Section 5(h) hereof, under any other provision
hereof, or otherwise.
5. General Provisions
(a) Fully Recourse. All of the terms and provisions of this Agreement
are recourse obligation of Indemnitor and not restricted by any
limitation on personal liability.
(b) Unsecured Obligations. Indemnitor hereby acknowledges that
Lender's appraisal of the Security Property is such that Lender
is not willing to accept the consequences of the inclusion of
Indemnitor's indemnity set forth herein among the obligations
secured by Security Instrument and the other Loan Documents and
that Lender would not make the Loan but for the unsecured
personal liability undertaken by Indemnitor herein.
(c) Survival. This Agreement shall be deemed to be continuing in
nature and shall remain in full force and effect and shall
survive the exercise of any remedy by Lender under the Security
Instrument or any of the other Loan Documents, including, without
limitation, any foreclosure or deed in lieu thereof, even if, as
part of such remedy, the Loan is paid or satisfied in fully.
(d) No Subrogation; no Recorce Against Lender. Notwithstanding the
satisfaction by Indemnitor of any liability hereunder, Indemniotr
shall not have any right of subrogation, contribution,
reimbursement or indemnity whatsoever or any right of recourse to
or with respect to the assets or property of Borrower or to any
collateral for the Loan. In connection with the foregoing,
Indemnitor expressly waives any and all rights of subrogation to
Lender against Borrower, and indemnitor hereby waives any rights
to enforce any remedy which Lender may have against Borrower and
any right to participate in any collateral for the Loan. In
addition to and without in any way limiting the foregoing,
Indemnitor hereby subordinates any and all indebtedness of
Borrower now or hereafter owed to Indemnitor to all indebtedness
of Borrower to Lender, and agrees with Lender that Indemnitor
shall not demand or accept any payment of principal or interest
from Borrower, shall not claim any offset or other reduction of
Indemnitor's obligations hereunder because of any such
indebtedness and shall not take any action to obtain any of the
collateral from the Loan. Further, Indemnitor shall not have any
right of recourse against Lender by reason of any action Lender
may take or omit to take under the provisions of this Agreement
or under the provisions of any of the Loan Documents.
(e) Reservation of Rights. Nothing contained in this Agreement shall
prevent or in any way diminish or interfere with any rights or
remedies, including without limitation, the right to
contribution, which Lender may have against Borrower, Indemnitor
or any other party under the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 (codified at
Title 42 U.S.C. Section 9601 et seq.), as it may be amended from
time to time, or any other applicable federal, state or local
laws, all such rights being hereby expressly reserved.
(f) Financial Statements; Net Worth. Indemnitor hereby agrees, as a
material inducement to Lender to make the Loan to Borrower, to
furnish to Lender promptly upon demand by Lender current and
dated financial statements detailing the assets and liabilities
of Indemnitor certified by Indemnitor, in form and substance
acceptable to Lender. Old Line agrees to maintain a net worth of
no less than $7,000,000.00. Xxxx agrees to maintain a net worth
of no less than $3,500,000.00. Xxxxxxx agrees to maintain a net
worth of no less than $1,000,000.00. The failure by any
Indemnitor to maintain the net worth for such Indemnitor set
forth above shall be deemed an "Event of Default" under the Loan
Documents entitling lender to exercise any and all of its
remedies thereunder. Indemnitor hereby warrants and represents
unto lender that any and all balance sheets, net worth statements
and other financial data which have heretofore been given or may
hereafter be given to Lender with respect to Indemnitor did or
will at the time of such delivery fairly and accurately present
the financial condition of Indemnitor.
(g) Rights Cumulative; Payments. Lender's rights under this Agreement
shall be in addition to all rights of Lender under the Note, the
Security Instrument and the other Loan Documents. Further,
payments made by Indemnitor, under this Agreement shall not
reduce in any respect Borrower's obligations and liabilities
under the Note, the Security Instrument and the Other Loan
Documents.
(h) No Limitation on Liability. Indemnitor hereby consents and agrees
that Lender may at any time and from time to time without further
consent from Indemnitor do any of the following events, and the
liability of Indemnitor under this agreement shall be conditional
and absolute and shall in no way be impaired or limited by any of
the following events, whether occurring with or without notice to
Indemnitor or with or without consideration: (i) any extensions
of time for performance required by any of the Loan Documents or
extension or renewal of the Note; (ii) any sale, assignment or
foreclosure of the Note, the Security Instrument or any of the
other Loan Documents or any sale or transfer of the Security
Property;
(iii) any change in the composition of Borrower, including
without limitation, the withdrawal or removal of Indemnitor from
any current or future position of ownership, management or
control of Borrower; (iv) the accuracy or inaccuracy of the
representations and warranties made by Indemnitor herein or by
Borrower in any of the Loan Documents; (v) the release of
Borrower or or of any other person or entity from performance or
observance of any of the agreements, covenants, terms or
conditions contained in any of the Loan Documents by operation of
law, Lender's voluntary act or otherwise; (vi) the release or
substitution in whole or in part of any security for the Loan;
(vii) Lender's failure to record the Security Instrument or to
file any financing statement (or Lender's improper recording or
filing thereof) or to otherwise perfect, protect, secure or
insure any lien or security interest given as security for the
Loan; (viii) the modification of the terms of any one or more of
the Loan Documents; or (ix) the taking or failure to take any
action of any type whatsoever. No such action which Lender shall
take or fail to take in connection with the Loan Documents or any
collateral for the Loan, nor any course of dealing with Borrower
or any other person, shall limit, impair or release Indemnitor's
obligations hereunder, affect this Agreement in any way or afford
Indemnitor any recourse against Lender. Nothing contained in the
Section shall be construed to require Lender to take or refrain
from taking any action referred to herein.
(i) Entire Agreement; Amendment; Severability. This Agreement
contains the entire agreement between the parties respecting the
matters herein set forth and supersedes all prior agreements,
whether written or oral, between the parties respecting such
matters. Any amendments or modification hereto, in order to be
effective, shall be in writing and executed by the parties
hereto. A determination that any provision of this Agreement is
unenforceable or invalid shall not affect the enforceability or
validity of any other provision, and any determination that the
application of any provision of this Agreement to any person or
circumstance in illegal or unenforceable shall not affect the
enforceability or validity of such provision as it may apply to
any other persons or circumstances.
(j) Governing Law; Binding Effect; Waiver of Acceptance. This
Agreement shall be governed by and construed in accordance with
the laws of the State in which the Security Property is located,
except to the extent that the applicability of any such laws may
now or hereafter be preempted by Federal law in which case such
Federal law shall so govern and be controlling. This Agreement
shall bind Indemnitor and the heirs, personal representatives,
successors and assigns of Indemnitor and shall inure to the
benefit of Lender and their respective heirs, successors and
assigns. Notwithstanding the foregoing, Indemnitor shall not
assign any of its rights or obligations under this agreement
without the prior written consent of Lender, which consent may be
withheld by Lender in its sole discretion. Indemnitor hereby
waives any acceptance of this Agreement by lender, and this
Agreement shall immediately be binding upon Indemnitor.
(k) All notices, demands, requests or other communications to be sent
by one party to the other hereunder or required by law shall be
in writing and shall be deemed to have been validly given or
served by delivery of the same in person to the intended
addressee, or by depositing the same with Federal Express or
another reputable private courier service for next business day
delivery to the intended addressee at its address set forth on
the first page of this Agreement or at such other address as may
be designated by such party as herein provided, or by depositing
the same in the United States mail, postage prepaid, registered
or certified mail, return receipt requested, addressed to the
intended addressee at its address set forth on the first page of
this Agreement or at such other address as may be designated by
such party as herein provided, or by depositing the same in the
United States mail, postage prepaid, registered or certified
mail, return receipt, requested, addressed to the intended
addressee at its address set forth on the first page of this
Agreement or at such other address as may be designated by such
party as herein provided. All notices, demands and requests to be
sent to Lender shall be addressed to the attention of the Capital
Markets Group - Conduit lending program. All notices, demands and
requests shall be effective upon such personal delivery, or one
(1) business day after being deposited with the private courier
service, or two (2) business days after being deposited in the
United States mail as required above. Rejection or other refusal
to accept or the inability to deliver because of changed address
of which no notice was given as herein required shall be deemed
to be receipt of the notice, demands or request sent. By giving
to the other party hereto at lease fifteen (15) days' prior
written notice thereof in accordance with the provisions hereof,
the parties hereto shall have right from time to time to change
their respective addresses and each shall have the right to
specify as its address any other address within the United State
of America.
(l) No Waiver; Time of Essence; Business Day. The failure of any
party hereto to enforce any right or remedy hereunder, or to
promptly enforce any such right or remedy, shall not constitute a
waiver thereof nor give rise to any estoppel against such party
nor excuse any of the parties hereto from their respective
obligations hereunder. Any waiver of such right or remedy must be
in writing and signed by the party to be bound. This Agreement is
subject to enforcement at law or in equity, including actions for
damages or specific performance. Time is of the essence hereof.
The term "business day" as used herein shall mean any day other
than a Saturday, Sunday, legal holiday or other day on which
commercial bands in the state where the Security Property is
located are authorized or required by law to close. All
references in this agreement to a "day" or "date" shall be to a
calendar day unless specifically referenced as a business day.
(m) Captions for Convenience. The captions and headings of the
sections and paragraphs of this Agreement are for convenience of
reference only and shall not be construed in interpreting the
provisions hereof.
(n) Attorney's Fees. In the event it is necessary for Lender to
retain the services of an attorney or any other consultants in
order to enforce this Agreement or the other Loan Documents, or
any portion thereof, to collect any or all of the Costs or to
obtain advise of an attorney or other consultant for any other
cause or circumstance arising under or with respect to this
Agreement Indemnitor agrees to pay to Lender any and all costs
and expenses, including, without limitation, attorneys' fees,
incurred by Lender as a result thereof and such costs, tees and
expenses shall be included in Costs.
(o) Successive Actions. A separate right of action hereunder shall
arise each time Lender acquires knowledge of any matter
indemnified or guaranteed by Indemnitor under this Agreement.
Separate and successive actions may be brought hereunder to
enforce any of the provisions hereof at any time and from time to
time. No action hereunder shall preclude any subsequent action
and, Indemnitor hereby waives and covenants not to assert any
defense in the nature of splitting of causes of action or merger
of judgments.
(p) Reliance. Lender would not make the Loan to Borrower without this
Agreement. Accordingly, Indemnitor intentionally and
unconditionally enters into the covenants and agreement as set
forth above and understands that, in reliance upon and in
consideration of such covenants and agreements, the Loan shall be
made and, as part and parcel thereof specific monetary and other
obligations have been, are being and shall be entered into which
would not be made or entered into bu for such reliance.
(q) SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL.
(i) INDEMNITOR, TO THE FULL EXTENT PERMITTED BY LAW, AND HEREBY
KNOWINGLY, INTENTIONALLY AND VOLUNTARILY, WITH AND UPON THE
ADVICE OF COMPETANT COUNSEL, (A) SUBMITS TO PERSONAL
JURISDICTION IN THE STATE IN WHICH THE SECURITY PROPERTY IS
LOCATED OVER ANY SUIT, ACTION OR PROCEEDING BY ANY PERSON
ARISING FROM OR RELATING TO THIS AGREEMENT, (B) AGREES THAT
ANY SUCH ACTION, SUIT OR PROCEEDING MAY BE BROUGHT IN ANY
STATE OR FEDERAL COURT OF COMPETENT JURISDICTION SITTING
OVER THE COUNTY IN WHICH THE SECURITY PROPERTY IS LOCATED,
(C) SUBMITS TO THE JURISDICTION OF SUCH COURTS, AND, (D) TO
THE
FULLEST EXTENT PERMITTED BY LAW, INDEMNITOR AGREES THAT IT
WILL NOT BRING ANY ACTION, SUIT OR PROCEEDING IN ANY OTHER
FORUM (BUT NOTHING HEREIN SHALL AFFECT THE RIGHT OF LENDER
TO BRING ANY ACTION, SUIT OR PROCEEDING IN ANY OTHER FORUM).
INDEMNITOR FURTHER CONSENTS AND AGREES TO SERVICE OF ANY
SUMMONS, COMPLAINT OR OTHER LEGAL PROCESS IN ANY SUCH SUIT,
ACTION OR PROCEEDING BY REGISTERED OR CERTIFIED U.S. MAIL,
POSTAGE PREPAID, TO THE INDEMNITOR AT THE ADDRESS FOR
NOTICES DESCRIBED IN SECTION 5(k) HEREOF, AND CONSENTS AND
AGREES THAT SUCH SERVICE SHALL CONSTITUTE IN EVERY RESPECT
VALID AND EFFECTIVE SERVICE (BUT NOTHING HEREIN SHALL AFFECT
THE VALIDITY OR EFFECTIVENESS OF PROCESS SERVED IN ANY OTHER
MANNER PERMITTED BY LAW).
(ii) LENDER AND INDEMNITOR, TO THE FULL EXTENT PERMITTED BY LAW,
HEREBY KNOWINGLY, INTENTIONALLY AND VOLUNTARILY, WITH AND
UPON THE ADVICE OF COMPETENT COUNSEL, WAIVE, RELINQUISH AND
FOREVER FORGO THE RIGHT TO A TRIAL BY JURY IN ANY ACTION OR
PROCEEDING BASED UPON, ARISING OUT OF, OR IN ANY WAY
RELATING TO THIS AGREEMENT OR ANY CONDUCT, ACT OR OMISSION
OF LENDER OR INDEMNITOR, OR ANY OF THEIR DIRECTORS,
OFFICERS, PARTNERS, MEMBERS EMPLOYEES, AGENTS OR ATTORNEYS,
OR ANY OTHER PERSONS AFFILIATED WITH LENDER OR INDEMNITOR,
IN EACH OF THE FOREGOING CASES, WHETHER SOUNDING IN
CONTRACT, TORT OR OTHERWISE.
(r) Waiver by Indemnitor. Indemnitor covenants and agrees that, upon
the commencement of a voluntary or involuntary bankruptcy
proceeding by or against Borrower, Indemnitor shall not seek or
cause Borrower or any other person or entity to seek a
supplemental stay or other relief, whether injunctive or
otherwise, pursuant to 11 U.S.C. 105 or any other provision of
the Bankruptcy Reform Act of 1978, as amended, or any other
debtor relief law, (whether statutory, common law, case law or
otherwise) of any jurisdiction whatsoever, now or hereafter in
effect, which may be or become applicable, to stay, interdict,
condition, reduce or inhibit the ability of Lender to enforce any
rights of Lender against Indemnitor or the collateral for the
Loan by virtue of this Agreement or otherwise.
(s) No Petition. Indemnitor hereby covenants and agrees that it will
not at any time institute against Borrower, or join in any
institution against Borrower of, any bankruptcy proceedings under
any United State Federal or state bankruptcy or similar law.
(t) Counterparts. This Agreement may by executed in any number of
counterparts, each of which shall be effective only upon delivery
and thereafter shall be deemed an original, and all of which
shall be taken to be one and the same instrument, for the same
effect as if all parties hereto had signed the same signature
page. Any signature page of this Agreement may be detached from
any counterpart of this Agreement without impairing the legal
effect of any signatures thereon and may be attached to another
counterpart of this Agreement identical in form hereto but having
attached to it one or more additional signature pages.
(u) Joint and Several Liability. Notwithstanding anything to the
contrary contained herein except for any conflicting terms and
provisions found in Section 5(v) below, the representations,
warranties, covenants and agreements made by old line, Xxxx and
Xxxxxxx herein, ad the liability of Old Line Xxxx and Xxxxxxx
hereunder, are joint and several.
(v) Limitation on Recovery. The terms and provision of this paragraph
control and superseded any conflicting terms and provisions
contained in this agreement, including any conflicting terms and
provision contained in this Agreement, including any conflicting
terms and provisions found in Section 5(u) above.
(i) it is hereby agreed that the amount recoverable from Old
Line, under this agreement (but not the scope or extent of
the Costs or other liabilities and obligations guaranteed or
indemnified under this Agreement) shall be limited to an
amount equal to 50% of all liabilities, Costs and all other
amounts, including 100% of the costs of collection, that are
guaranteed by Old Line under this Agreement or for which
lender is indemnified under this Agreement from time to time
arising. Old Line acknowledges that the foregoing limitation
on recovery is applicable to each and every event or
circumstance resulting in any liability or Cost to Lender
and that the intent of Old Line and Lender is to limit the
amount of such recovery. Old Line specifically acknowledges
that the limitation set forth above is a limitation upon the
amount recoverable from Old Line under this Agreement, and
that such limitation does not and shall not be construed to
result in the satisfaction of the obligations of Old Line
hereunder until paid, pursuant to this Agreement and Lender
has received the full amount recoverable from Old Line as
limited under the terms of Section 5(v).
(ii) it is hereby agreed that the amount recoverable from Xxxx,
under this Agreement (but not the scope or extent of the
Costs or other liabilities and obligations guaranteed or
indemnified under this Agreement) shall be limited to an
amount equal to 25% of all
liabilities, Costs and all other amounts, including 100% of
the costs of collection, that are guaranteed by Xxxx under
this Agreement or for which Lender is indemnified under this
Agreement from time to time arising. Xxxx acknowledges that
the foregoing limitation on recovery is applicable to each
and every event or circumstance resulting in any liability
or Cost to Lender and that the intent of Xxxx and Lender is
to limit the amount of such recovery. Xxxx specifically
acknowledges that the limitation set forth above is a
limitation only upon the amount recoverable from Xxxx under
this Agreement, and that such limitation does not and shall
not be construed to result in the satisfaction of the
obligations of Xxxx hereunder until paid, pursuant to this
Agreement, and Lender has received the full amount
recoverable from Xxxx as limited under the terms of this
Section 5(v).
(iii) it is hereby agreed that the amount recoverable from
Xxxxxxx, under this Agreement (but not the cope or extent of
the Costs or other liabilities and obligations guaranteed or
indemnified under this Agreement) shall be limited to an
amount equal to 25% of all liabilities, Costs and all other
amounts, including 100% of the costs of collection, that are
guaranteed by Xxxxxxx under this Agreement or for which
Lender is indemnified under this Agreement from time to time
arising. Xxxxxxx acknowledges that the foregoing limitation
on recovery is applicable to each and every event or
circumstance resulting in any liability or Cost to Lender
and that the intent of Xxxxxxx and Lender is to limit the
amount of such recovery. Xxxxxxx specifically acknowledges
that the limitation set forth above is a limitation only
upon the amount recoverable from Xxxxxxx under this
Agreement, and that such limitation does not and shall not
be construed to result in the satisfaction of the
obligations of Xxxxxxx hereunder until paid, pursuant to
this Agreement, and Lender has received the full amount
recoverable from Xxxxxxx as limited under the terms of this
Section 5(v).
[NO FURTHER TEXT ON THIS PAGE]
IN WITNESS WHEREOF, Indemnitor has executed this Indemnity Agreement as of
the day and year first above written.
INDEMNITORS:
OLD LINE BANCSHARES, INC., a Maryland
corporation
By: /s/ Xxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: President
X. XXXX, INC., a Maryland corporation
By: /s/ Xxxxxxx X. Xxxx
------------------------------------
Name: Xxxxxxx X. Xxxx
Title: President
XXXXXXX ENTERPRISES, INC., a Maryland
corporation
By: /s/ Xxxxx Xxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxx, Xx.
Title: President
EXHIBIT A
PROPERTY DESCRIPTION
Parcel lettered "E", in Block numbered Thirty (30), in the Subdivision known as
"Pointer Ridge at Belair Village", as per Plat thereof recorded among the Land
Records of Prince George's County, Maryland, as recorded in Plat Book WWW 78, at
Plat 37. Being in the 7th Election District of said county.
