INDEMNITY AGREEMENT
THIS AGREEMENT is dated the 26th day of November, 1996.
B E T W E E N:
STANDA INVESTMENTS INC
a corporation incorporated under the
laws of the Province of Ontario
(the "Landlord")
OF THE FIRST PART
- and -
PILLOWTEX CORPORATION
(the "Indemnifier")
OF THE SECOND PART
In order to induce the Landlord to enter into the lease (the "Lease")
dated the 26th day of November, 1996, and made between the Landlord and
Torfeaco Industries Limited, as Tenant, and for other good and valuable
consideration, the receipt and sufficiency whereof is hereby acknowledged,
the Indemnifier hereby makes the following indemnity and agreement (the
("Indemnity") with and in favor of the Landlord:
1. The Indemnifier hereby agrees with the Landlord that at all times during
the Term of the Lease and any extension or renewal of the Lease it will (a)
make the due and punctual payment of all Rent, monies, charges and other
amounts of any kind whatsoever payable under the Lease by the Tenant
whether to the Landlord or otherwise and whether the Lease has been
disaffirmed or disclaimed; (6) effect prompt and complete performance of
all and singular the terms, covenants and conditions contained in the Lease
on the part of the Tenant to be kept, observed and performed; and (c)
indemnify and save the Landlord harmless from any loss, costs or damages
arising out of any failure by the Tenant to pay the aforesaid Rent, monies,
charges or other amounts due under the Lease or resulting from any failure
by the Tenant to perform any of the terms, covenants and conditions
contained in the Lease.
2. This Indemnity is absolute and unconditional and the obligations of the
Indemnifier shall not be released, discharged, mitigated, impaired or
affected by (a) any extension of time, indulgences or modifications which
the Landlord extends to or makes with the Tenant in respect of the
performances of any of the obligations
of the Tenant under the Lease; (b) any waiver by or failure of the Landlord
to enforce any of the terms, covenants and conditions contained in the
Lease; (c) any assignment of the Lease by the Tenant or by any trustee,
receiver or liquidator; (d) any consent which the Landlord gives to any
such assignment or subletting; (e) any amendment to the Lease or any waiver
by the Tenant of any of its rights under the Lease; (f) the expiration of
the Term.
3. The Indemnifier hereby expressly waives notice of the acceptance of this
Agreement and all notice of non-performance, non-payment or non-observance
on the part of the Tenant of the terms, covenants and conditions contained
in the Lease. Without limiting the generality of the foregoing, any notice
which the Landlord desires to give to the Indemnifier shall be sufficiently
given if delivered in person to the Indemnifier or if mailed by prepaid
registered or certified post addressed to the Indemnifier at the Leased
Premises, and every such notice is deemed to have been given upon the day
it was so delivered in person, or if mailed, forty-eight (48) hours after
it was mailed. The Indemnifier may designate by notice in writing a
substitute address for that set forth above and thereafter notices shall be
directed to such substituted address. If two or more persons are named as
Indemnifier, any notice given hereunder or under the Lease shall be
sufficiently given if delivered or mailed in the foregoing manner to any
one of such persons.
4. In the event of default under the Lease or under this Indemnity, the
Indemnifier waives any right to require the Landlord to (a) proceed against
the Tenant or pursue any rights or remedies against the Tenant with respect
to the Lease; (b) proceed against or exhaust any security of the Tenant
held by the Landlord; or (c) pursue any other remedy whatsoever in the
Landlord's power. The Landlord has the right to enforce this Indemnity
regardless of the acceptance of additional security from the Tenant and
regardless of any release or discharge of the Tenant by the Landlord or by
others or by operation of any law.
5. Without limiting the generality of the foregoing, the liability of the
Indemnifier under this Indemnity is not and is not deemed to have been
waived, released, discharged, impaired or affected by reason of the release
or discharge of the Tenant in any receivership, bankruptcy, winding-up or
other creditors proceedings or the rejection, disaffirmance or disclaimer
of the Lease in any proceeding and shall continue with respect to the
periods prior thereto and thereafter, for and with respect to the Term as
if the Lease had not been disaffirmed or disclaimed, and in furtherance
hereof, the Indemnifier agrees, upon any such disaffirmance or disclaimer,
that the Indemnifier shall, at the option of the Landlord, become the
Tenant of the Landlord upon the same terms and conditions as are contained
in the Lease, applied MUTATIS MUTANDIS. The liability of the Indemnifier
shall not be affected by any repossession of the Leased Premises by the
Landlord, provided, however, that the net payments received by the Landlord
after deducting all costs and expenses of repossessing and reletting the
Leased Premises shall be credited from time to time by the Landlord against
the indebtedness of the Indemnifier hereunder and the Indemnifier shall pay
any balance owing to the Landlord from time to time immediately upon
demand.
6. No action or proceedings brought or instituted under this Indemnity and no
recovery in pursuance thereof shall be a bar or defence to any further
action or proceeding which may be brought under this Indemnity by reason of
any further default hereunder or in the performance and observance of the
terms, covenants and conditions contained in the Lease.
7. No modification of this Indemnity shall be effective unless the same is in
writing and is executed by both the Indemnifier and the Landlord.
8. The Indemnifier shall, without limiting the generality of the foregoing, be
bound by this Indemnity in the same manner as though the Indemnifier were
the Tenant named in the Lease.
9. If two or more individuals, corporations, partnerships or other business
associations (or any combination of two or more thereof) execute this
Indemnity as Indemnifier, the liability of each such individual,
corporation, partnership or other business association hereunder is joint
and several. In like manner, if the Indemnifier named in the Indemnity is a
partnership or other business association, the members of which are by
virtue of statutory or general law subject to personal liability, the
liability of each such member is joint and several.
10. All of the terms, covenants and conditions of this Indemnity extend to and
are binding upon the Indemnifier, his or its heirs, executors;
administrators, successors and assigns, as the case may be, and enure to
the benefit of and may be enforced by the Landlord, its successors and
assigns, as the case may be, and any mortgagee, chargee, trustee under a
deed of trust or other encumbrancer of all or any part of the Centre
referred to in the Lease.
11. The expressions "Landlord", "Tenant", "Rent", "Term" and "Premises" and
other terms or expressions where used in this Indemnity, respectively, have
the same meaning as in the Lease.
12. This Agreement shall be construed in accordance with the laws of the
Province of Ontario.
13. Wherever in this Indemnity reference is made to either the Landlord or the
Tenant, the reference is deemed to apply also to the respective heirs,
executors, administrators, successors and assigns and permitted assigns,
respectively, of the Landlord and the Tenant, as the case may be, named in
the Lease Any assignment
by the Landlord of any of its interest in the Lease operates automatically
as an assignment of such assignee of the benefit of this Indemnity.
IN WITNESS WHEREOF the Landlord and the Indemnifier have signed and
sealed this Indemnity.
INDEMNIFIER
PILLOWTEX CORPORATION
Per: /s/ (Signature Illegible)
-------------------------------
Authorized Signing Authority
LANDLORD:.
STANDA INVESTMENTS INC.
Per: /s/ (Signature Illegible)
-------------------------------
Authorized Signing Authority
