INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (the "Agreement"), dated this 25th day of
March, 1998, among Xxxx-Xxxx Realty Corporation, a Maryland corporation,
Xxxx-Xxxx Realty, L.P., a Delaware limited partnership (collectively,
"Xxxx-Xxxx"), Pacifica Holding Company, a Colorado limited liability company
("Pacifica LLC") and Pacifica Holding Company, a Colorado corporation
("Pacifica"; and, together with Pacifica LLC, collectively, the "Indemnitors").
Unless otherwise defined herein, capitalized terms contained herein shall have
the meanings set forth in the Contribution and Exchange Agreements (as defined
below).
W I T N E S S E T H:
WHEREAS, as set forth on Schedule I hereof, Xxxx-Xxxx, the Indemnitors,
et. al., have entered into the Contribution and Exchange Agreements set forth on
Schedule I hereof, dated as of March 25, 1998 and the other documents and
instruments exted and delivered in connection therewith including, without
limitation, the Assignment and Assumption of Leases, the Omnibus Assignment of
Interests, and the Asset Purchase Agreement (such Contribution and Exchange
Agreements, together with such other documents and instruments, are hereinafter
collectively called the "Contribution and Exchange Agreements") pursuant to
which, among other things, Xxxx-Xxxx, the Indemnitors and the other Contributors
listed therein agreed to contribute and exchange certain entity interests
("Contributed Interests") and real property identified therein (the
"Transaction");
WHEREAS, pursuant to Section 5.3 of the Contribution and Exchange
Agreements, the Indemnitors have agreed to indemnify Xxxx-Xxxx with respect to
certain claims that may arise as a result of the Transaction;
NOW, THEREFORE, for ten dollars ($10.00) the premises contained herein and
other good and valuable consideration, the receipt and sufficiency of which are
hereby conclusively acknowledged, the parties hereto, intending to be legally
bound, mutually agree as follows:
1. Agreement to Indemnify. From and after the Closing, and subject to the
terms and conditions of this Agreement, the Indemnitors jointly and severally
covenant and agree to indemnify, defend and hold harmless Xxxx-Xxxx, and any
other Person controlling, controlled by or under common control with Xxxx-Xxxx,
including any officer, director, stockholder, partner, member, employee, agent
or representative of any of them (a "Xxxx-Xxxx Affiliate"), from and against all
claims, judgments, assessments, losses, damages, liabilities, costs and
expenses, including without limitation interest, penalties and reasonable fees
and expenses of legal counsel chosen by Xxxx-Xxxx or a Xxxx-Xxxx Affiliate
(collectively, "Damages"), imposed upon or incurred by Xxxx- Xxxx, or any
Xxxx-Xxxx Affiliate arising out of or in connection with or resulting from any
and all claims or threatened claims (collectively, "Claims") relating to the
following: (i) the fairness, appropriateness, authority and legal sufficiency of
the allocation of the Exchange Consideration and the Units amongst the
Contributors and their partners under the Contribution and Exchange
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Agreements, which allocation has been determined by the Indemnitors and the
Contributors in their sole discretion immediately preceding the Closing; (ii)
the distribution or allocation of any of the Units, and/or cash received by any
Contributor at the Closing or to such entity's partners, shareholders, members,
beneficiaries or other individuals or entities having a legal or beneficial
ownership interest in such entity and/or the appropriateness or legal
sufficiency of any such distribution or allocation; (iii) with regard to any
Property conveyed to Xxxx-Xxxx by assignment of Contributed Interests, any
failure to convey to Xxxx-Xxxx one hundred percent (100%) of the Contributed
entities comprised of such Contributed Interests; (iv) with regard to any
Property conveyed to Xxxx-Xxxx, any failure to obtain any necessary partner or
member consent to such transfer and/or assignment; (v) any breach of the
representations and warranties of the Contributors and other Property owners set
forth in the Contribution and Exchange Agreements to the extent they would be
liable for such breach under said agreements; and/or (vi) with respect to the
Contributed Interests and/or the Property, any direct or indirect indebtedness,
liability, claim or loss that accrued prior to Closing, to the extent
Contributors would be liable for the same under the Contribution and Exchange
Agreements, whether known or unknown, fixed or unfixed, xxxxxx or inchoate,
liquidated or unliquidated, secured or unsecured, accrued, absolute, contingent
or otherwise, whether or not of a kind required by GAAP to be set forth on the
Property Financials or in the notes thereto, including, without limitation,
indebtedness for borrowed money (collectively, "Liabilities"), unless such
Liabilities were fully and accurately reflected on a schedule to the
Contribution and Exchange Agreements and/or the Property Financials and
expressly approved by Xxxx-Xxxx.
2. Survival. Notwithstanding anything to the contrary contained in the
Contribution and Exchange Agreements, the provisions of this Agreement shall
survive until such time as any applicable statute of limitation for any such
Claims have expired. This Agreement shall be independent of, and in addition to,
the provisions relating to indemnification contained in the Contribution and
Exchange Agreements. The indemnification obligations set forth in this Agreement
shall be absolute and unconditional.
The liability of the Indemnitors hereunder shall in no way be affected by
(a) the release or discharge of the Indemnitors in any creditors' receivership,
bankruptcy or other similar proceedings, or (b) the impairment or modification
of the liability of any of the Indemnitors or their respective estates in
bankruptcy from the operation of any present or future provision of Title 11 of
the United States Code or any other statute or from the action of any court
having jurisdiction over any of the Indemnitors or their respective estates.
Each of the Indemnitors waives any right or claim of right to cause a
marshaling of the respective assets of Indemnitors before Xxxx-Xxxx may proceed
against any of the Indemnitors or to cause Xxxx-Xxxx to proceed in any
particular order against the Indemnitors.
3. General Procedures. The provisions of Section 1 are expressly subject
to the following: Xxxx-Xxxx shall give notice to the Indemnitors with reasonable
promptness upon becoming aware of the Claims or other facts upon which a claim
for indemnification will be based (provided, however, no delay by Xxxx-Xxxx in
exercising any of its rights or remedies under this Agreement shall operate as a
waiver of any such right, power or privilege, except to the extent such
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delay materially prejudices the Contributor's ability to successfully defend the
matter giving rise to the indemnification Claims); the notice shall set forth
such information with respect thereto as is then reasonably available to
Xxxx-Xxxx. The Indemnitors shall have the right to undertake the defense of any
such Claims asserted by a third party with counsel reasonably satisfactory to
Xxxx-Xxxx and Xxxx-Xxxx shall cooperate at the Indemnitors' reasonable expense
in such defense and make available all records and materials reasonably
requested by the Indemnitors in connection therewith. In any event, Xxxx-Xxxx
shall be entitled to participate in such defense, but shall not be entitled to
indemnification with respect to the costs and expenses of such defense if the
Indemnitors shall have diligently assumed the defense of the Claims; provided,
that, if in the opinion of counsel to Xxxx- Xxxx, the use of the same counsel to
represent the Indemnitors and Xxxx-Xxxx would present a conflict of interest,
Xxxx-Xxxx may employ its own counsel at the Indemnitors' expense. In the event
the Indemnitors decide not to or do not promptly undertake the defense of any
such Claims, Xxxx- Xxxx shall be entitled to indemnification with respect to all
reasonable costs and expenses of such defense (including reasonable attorneys'
fees, costs and expenses). Any Claims to which the Indemnitors have undertaken
to defend under this Section 3 shall not, without the written consent of
Xxxx-Xxxx, be settled or compromised nor shall any consent to entry of money
judgment be agreed to; provided, however, and notwithstanding anything to the
contrary contained in this Agreement, the Indemnitors may settle any Claims
without the consent of Xxxx-Xxxx, but only if such settlement (a) requires only
the payment of monetary damages that are paid in full by the Indemnitors, and
(b) includes as an unconditional term thereof, the release by the claimant or
the plaintiff of Xxxx-Xxxx from all liability arising from the events which
allegedly gave rise to such Claims. The Indemnitors shall not be liable for any
Claims settled by Xxxx-Xxxx without their written consent (for purposes of this
Agreement, the consent of any of the Indemnitors shall be deemed to be the
consent of all of the Indemnitors).
4. Remedies Cumulative. Except as otherwise provided herein, the remedies
provided herein shall be cumulative and shall not preclude the assertion by any
party hereto of any other rights or the seeking of any other remedies against
any other party hereto.
2. Notices: All notices, demands, requests, or other writings in this
Agreement provided to be given or made or sent, or which may be given or
made or sent, by either party hereto to the other, shall be in writing and
shall be delivered by depositing the same with any nationally recognized
overnight delivery service, or by telecopy or fax machine, in either event
with all transmittal fees prepaid, properly addressed, and sent to the
following addresses:
If to Xxxx-Xxxx: c/o Xxxx-Xxxx Realty Corporation
00 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxx Xxxxxx 00000
Attn: Xxxxx X. Xxxxxx, Esq.
(000) 000-0000 (tele.)
(000) 000-0000 (fax)
with a copy to: Pryor, Cashman, Xxxxxxx & Xxxxx
000 Xxxx Xxxxxx
000
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Xxxxxxxx, Esq.
(000) 000-0000 (tele.)
(000) 000-0000 (fax)
If to the Indemnitors: Pacifica Holding Company, LLC
0000 X. Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Attn: Mr. Xxxxx Xxxxxxx
(000) 000-0000 (tele.)
(000) 000-0000 (fax)
Pacifica Holding Company, a Colorado
corporation
0000 X. Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Attn: Mr. Xxxxx Xxxxxxx
(000) 000-0000 (tele.)
(000) 000-0000 (fax)
with a copy to: Brownstein, Hyatt, et al.
000 00xx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx Xxxxx, Esq.
(000) 000-0000 (tele.)
(000) 000-0000 (fax)
or to such other address as either party may from time to time designate
by written notice to the other or to the Escrow Agent. Notices given by
(i) overnight delivery service as aforesaid shall be deemed received and
effective on the first business day following such dispatch and (ii)
telecopy or fax machine shall be deemed given at the time and on the date
of machine transmittal provided same is sent prior to 4:00 p.m. on a
business day (if sent later, then notice shall be deemed given on the next
business day) and if the sending party receives a written send
confirmation on its machine and forwards a copy thereof by regular mail
accompanied by such notice or communication. Notices may be given by
counsel for the parties described above, and such Notices shall be deemed
given by said party, for all purposes hereunder.
6. Binding Effect. This Agreement shall be binding upon, inure to the
benefit of, and be enforceable by the parties hereto and their respective
successors and assigns.
7. Governing Law. This Agreement shall be deemed a contract made under the
laws of the State of Colorado and together with the rights and obligations of
the parties hereunder, shall be construed and enforced in accordance with and
governed by the laws of such state (but not including the choice-of-law rules
thereof). Each party hereto submits itself to the jurisdiction of any court
sitting in the County of Denver of the State of Colorado for the purpose of
adjudicating the
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rights of the parties hereunder.
8. Counterparts. This Agreement may be executed simultaneously in
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
9. Captions. Any captions are solely for convenience of reference and
shall not be used in construing or interpreting this Agreement.
10. Entire Agreement. This Agreement contains the entire agreement among
the parties with respect to the subject matter hereof and supersedes all prior
or oral agreements or understanding with respect thereto.
11. Amendment. This Agreement may not be waived, changed, discharged or
terminated orally, but only by an agreement in writing, signed by the party or
parties against whom enforcement of any waiver, change, modification, discharge
or termination is sought.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
XXXX-XXXX REALTY, L.P.
BY: Xxxx-Xxxx Realty Corporation
By:
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Name: Xxxxx X. Xxxxxx
Title: Executive Vice President
XXXX-XXXX REALTY CORPORATION
By:
-------------------------------
Name: Xxxxx X. Xxxxxx
Title: Executive Vice President
PACIFICA HOLDING COMPANY, LLC
By:
-------------------------------
Name:
Title:
PACIFICA HOLDING COMPANY, a Colorado
corporation
By:
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Name:
Title:
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