AMENDED AND RESTATED INDEMNITY
Amended and Restated Indemnity Agreement ("INDEMNITY" or "AGREEMENT")
dated as of November 24, 2003 among the Indemnitor (defined below), THE NEWKIRK
MASTER LIMITED PARTNERSHIP, a Delaware limited partnership ("NMLP"), FLEET
NATIONAL BANK, a national banking association having an address at 100 Federal
Street, Boston, Massachusetts, and the other lending institutions which become
parties to the Master Loan Agreement (defined below) (Fleet National Bank and
such other lending institutions which become parties to the Master Loan
Agreement are collectively referred to as the "LENDERS" and each individually as
a "LENDER"), and FLEET NATIONAL BANK, as Agent (the "AGENT"). All capitalized
terms used in this Agreement which are not otherwise specifically defined herein
shall have the same meaning herein as in the Master Loan Agreement.
RECITALS
WHEREAS, reference is hereby made to the loan arrangement (the "LOAN
ARRANGEMENT") entered into by and among NMLP, the Agent and the Lenders, as
evidenced by, among other documents, instruments and agreements, that certain
Loan Agreement dated as of January 30, 2002 among NMLP, the Agent and the
Lenders (the "2002 LOAN AGREEMENT").
WHEREAS, as a condition to entering into the Loan Arrangement with
NMLP, the Agent and the Lenders required NMLP and the Indemnitor to execute and
deliver that certain Indemnity dated as of January 30, 2002 (the "2002
INDEMNITY").
WHEREAS, NMLP has now requested the Agent and the Lenders to refinance
the Loan Arrangement pursuant to that certain Master Loan Agreement dated as of
November 24, 2003 (as amended, supplemented or otherwise modified from time to
time, the "MASTER LOAN AGREEMENT") entered into by and among NMLP, T-Two
Partners, L.P., a Delaware limited partnership ("T-TWO"), the Agent and the
Lenders, upon the terms and subject to the conditions set forth therein.
WHEREAS, as a condition to such refinancing, the Agent and the Lenders
have required that, among other things, NMLP and the Indemnitor execute and
deliver this Agreement, which amends, restates and supercedes the 2002 Indemnity
in its entirety on the terms and conditions set forth in this Agreement.
As used herein:
A. The term "ACTUAL NMLP LOSS" shall mean the sum of all payments made
by, or on behalf of, or from the assets of, NMLP, any NMLP Subsidiary, or any
NMLP Loan Party (except the Newkirk Indemnitor or the members of the NMLP GP)
to, or on behalf of, the Integrated Group on account of the Integrated
Obligations.
B. The "INDEMNITOR" shall mean, singly and collectively, NEWKIRK NL
HOLDINGS LLC, a Delaware limited liability company, NEWKIRK MLP CORP., a
Delaware corporation, VORNADO REALTY, L.P., a Delaware limited partnership,
VORNADO NEWKIRK LLC, a Delaware limited liability company, VNK L.L.C., a
Delaware limited liability company, and APOLLO REAL ESTATE INVESTMENT FUND III,
L.P., a Delaware limited partnership.
C. The term "INDEMNIFIED MATTERS" shall mean any and all claims, rights
to payment of money and other rights or causes of action held, asserted or
threatened by the Integrated Group
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or any other Person against NMLP, any NMLP Subsidiary, any NMLP Loan Party
(except the Newkirk Indemnitor or the members of the NMLP GP), or any
Indemnified Party under, or arising out of, the Integrated Documents and the
transactions with the Integrated Group relative thereto, including, without
limitation, (i) the Integrated Obligations and (ii) any liens granted to, or
held by, the Integrated Group to secure the repayment of the Integrated
Obligations.
D. The term "INDEMNIFIED PARTY" shall mean: (i) NMLP; (ii) all those
claiming by, through or under NMLP; (iii) Agent and/or each Lender; (iv) all
those claiming by, through or under Agent or any Lender, including any
subsequent holder of the NMLP Loan and any present or future owner of a
participation interest therein, but specifically excluding any unrelated third
party purchaser of any of the NMLP Collateral; and (v) as to each of the
foregoing, their respective parent and subsidiary corporations, and, as
applicable, the respective officers or directors, of any one or more of them,
and any person, firm or entity which controls them but specifically excluding
any unrelated third party purchaser of any of the NMLP Collateral.
E. The term "MASTER LOAN AGREEMENT" shall mean the Master Loan
Agreement dated as of the date hereof among NMLP, T-Two, the Agent and the
Lenders.
FOR VALUE RECEIVED, the Indemnitor hereby unconditionally agrees as
follows:
1. Indemnification. Except as provided below, at all times, both before
and after the repayment of the NMLP Loan, Indemnitor hereby agrees that it shall
at its sole cost and expense indemnify, defend, exonerate, protect and save
harmless each Indemnified Party against and from any and all damages, losses,
liabilities, obligations, penalties, claims, litigation, demands, defenses,
judgment, suits, proceedings, costs, disbursements or expenses of any kind or
nature whatsoever, including, without limitation, reasonable attorneys' and
experts' fees and disbursements, which may at any time be imposed upon, incurred
by or asserted or awarded against such Indemnified Party and arising from or out
of or in connection with the Indemnified Matters, provided, however that no
Indemnitor shall be liable under this Indemnity for any damages, losses,
liabilities, obligations, penalties, claims, litigation, demands, defenses,
judgment, suits, proceedings, costs, disbursements or expenses arising out of or
relating to the gross negligence or willful misconduct of an Indemnified Party.
Without limiting the generality of the foregoing in respect of matters other
than any Actual NMLP Loss, any Actual NMLP Loss shall be deemed to be a loss,
liability, and expense incurred by NMLP and arising from or out of or in
connection with the Indemnified Matters, and therefore, subject to
indemnification under this Section 1. Any such Actual NMLP Loss shall be paid by
the Indemnitor to NMLP within fifteen (15) days of demand by NMLP or Agent
therefor. Notwithstanding the terms and provisions hereof, NMLP irrevocably
directs the Indemnitor to pay to Agent (but only to the extent of the then
outstanding NMLP Obligations) the unpaid amount of any Actual NMLP Loss (which
payment shall be applied to the NMLP Obligations in accordance with the
provisions of the Master Loan Agreement) if a payment of an Actual NMLP Loss has
been
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demanded by NMLP or Agent and payment of such Actual NMLP Loss has not been
made in full to, or on behalf of, NMLP within fifteen (15) days of such demand.
The Agent shall have the right to enforce the obligations of the Indemnitor with
respect to any Actual NMLP Loss, but only for so long as NMLP Obligations are
outstanding.
An Indemnified Party shall provide notice to the Indemnitor of any
claim which may form the basis of an indemnity hereunder other than a claim for
an Actual NMLP Loss (a "CLAIM") within ninety (90) days of receipt or notice of
such Claim and shall thereafter provide the Indemnitor with copies of all
documents received by such Indemnified Party relating to such Claim; provided,
however, failure by such Indemnified Party to provide any such notice or
documents will not relieve the Indemnitor of their obligation to indemnify the
Indemnified Parties hereunder. Upon notice of a Claim, an Indemnitor may notify
any Indemnified Party involved in such Claim that it desires to defend such
Indemnified Party against such Claim, whereupon such Indemnitor, except as
hereinafter provided, shall have the right to defend such Indemnified Party by
appropriate proceedings and shall have the power to reasonably direct and
control such defense, in all instances subject to the approval of the
Indemnified Party, which approval will not be unreasonably withheld. All costs
and expenses incurred by an Indemnitor in defending such Claim shall be paid by
such Indemnitor. An Indemnitor shall not consent to the entry of any judgment or
enter into any settlement in respect of a Claim without the consent of the
Indemnified Parties involved in the Claim, which consent shall not be
unreasonably withheld or delayed and provided such Indemnitor makes satisfactory
arrangements for the immediate satisfaction of such judgment or settlement. The
extent an Indemnitor shall direct, control or participate in the defense or
settlement of any Claim, the Indemnified Parties involved in such Claim will, as
reasonably required, give the Indemnitor and their counsel access to, during
normal business hours and after reasonable notice, the relevant business records
and other documents (subject to customary confidentiality agreements and any
limitations required based on any nondisclosure requirements imposed on the such
Indemnified Party), and permit them, during normal business hours and after
reasonable notice, to consult with the relevant employees and counsel of such
Indemnified Parties.
1.1 Limitation. Notwithstanding anything to the contrary contained
herein, with the exception of obligations that have as of such date ripened into
an actual or threatened cause of action or claim for damages (the "EXISTING
CLAIM") or thereafter arise out of or are related to such Existing Claim, the
Indemnitor's liability hereunder shall be terminated after the full payment and
performance of all NMLP Obligations under the NMLP Loan Documents, including,
but not limited to, repayment in full of the NMLP Loan and all preference
periods under all applicable bankruptcy and insolvency laws having elapsed with
either: (a) no claim being made during such period against Agent or any Lender
for the disgorgement of any property or money received, or (b) if such a claim
has been filed, the dismissal thereof pursuant to a final, non-appealable
decision of a court of competent jurisdiction ("NON-CONTESTABLE PAYMENT").
1.2 Recovery of Costs. Any and all amounts paid or advanced by Agent or
any Lender pursuant to this Agreement and all costs and expenditures reasonably
incurred in connection with any
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action taken pursuant to the terms of this Agreement, including but not
limited to reasonable attorneys' fees and expenses, and all court costs, shall
be payable upon demand with interest thereon at the Default Rate if not paid
within fifteen (15) days of demand thereof and, to the extent not prohibited by
law, but only if such amounts have been paid or advanced by Agent or a Lender.
2. Waivers. Indemnitor each hereby waive and relinquish to the fullest
extent now or hereafter not prohibited by applicable law:
2.1 Suretyship Defenses. All suretyship defenses and defenses in the
nature thereof;
2.2 Marshalling. Any right or claim of right to cause a marshalling of
NMLP's or any of NMLP's Subsidiaries' assets or to cause Agent or any Lender to
proceed against any of the NMLP Collateral for the NMLP Loan before proceeding
under this Agreement against any Indemnitor, or to require Lender to proceed
against Indemnitor in any particular order;
2.3 Notice. Notice of the acceptance hereof, presentment, demand for
payment, protest, notice of protest, or any and all notice of nonpayment,
nonperformance, nonobservance or default or other proof or notice of demand
whereby to charge Indemnitor therefor; and
2.4 Statute of Limitations. The pleading of any Statute of Limitations
as a defense to such Indemnitor's obligations hereunder.
3. Jury Trial. INDEMNITOR, NMLP, AGENT AND LENDERS HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT TO A TRIAL BY JURY IN RESPECT OF
ANY LITIGATION BASED HEREON, ARISING OUT OF, UNDER OR IN-CONNECTION WITH THIS
AGREEMENT OR ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS (WHETHER
VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTIES.
4. Cumulative Rights. Agent's rights under this Agreement shall be in
addition to and not in limitation of all of the rights and remedies of Agent
under the other NMLP Loan Documents. All rights and remedies of Agent shall be
cumulative and may be exercised in such manner and combination as Agent may
determine.
5. No Impairment. The liability of Indemnitor hereunder shall in no way
be limited or impaired by, and Indemnitor hereby assents to and agrees to be
bound by, any amendment or modification of the provisions of the other NMLP Loan
Documents to or with Agent and Lenders by NMLP, any NMLP Subsidiary, or any NMLP
Loan Party, or any successor or assign thereof. In addition, the liability of
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Indemnitor under this Agreement shall in no way be limited or impaired by:
5.1 Extensions. Any extensions of time for performance required by any
of the other NMLP Loan Documents;
5.2 Waiver. Any waiver, consent or approval granted or denied under any
of the other NMLP Loan Documents;
5.3 Transfer. Any sale or assignment of the NMLP Loan, or any sale,
assignment or foreclosure of the NMLP Security Documents, or any sale or
transfer of all or part of the NMLP Collateral;
5.4 Exculpatory Language. Any exculpatory, or nonrecourse, or limited
recourse provision in any of the NMLP Loan Documents (except as specifically
contained in this Agreement) limiting Agent's or any Lender's recourse or
limiting Agent's or any Lender's rights to a deficiency judgment against NMLP or
any other party;
5.5 Inaccuracies. The accuracy or inaccuracy of any of the
representations or warranties made by or on behalf of any Indemnitor under the
NMLP Loan Documents or otherwise;
5.6 Release. The release of Indemnitor, 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 other NMLP Loan Documents by operation of
law, Agent's or any Lender's voluntary act, or otherwise;
5.7 Bankruptcy or Reorganization. The filing of any bankruptcy or
reorganization proceeding by or against NMLP, any NMLP Subsidiary, any NMLP Loan
Party, any Indemnitor, or any subsequent owner of any NMLP Collateral;
5.8 Substitution. The release or substitution in whole or part of any
NMLP Collateral or security for the NMLP Loan;
5.9 Failure To Perfect. Agent's failure to file any UCC financing
statements (or Agent's improper recording or filing of any thereof) or to
otherwise perfect, protect, secure, or insure any security interest or lien
given as security for the NMLP Loan;
5.10 Release of Parties. The release of any party now or hereafter
liable upon or in respect of the NMLP Loan; or
5.11 Invalidity. The invalidity or unenforceability of all or any
portions of any of the NMLP Loan Documents as to any Indemnitor or to any other
person or entity.
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Any of the foregoing may be accomplished with or without notice to NMLP or any
Indemnitor or with or without consideration.
6. Delay Not Waiver. No delay on Agent's part in exercising any right,
power or privilege hereunder or under any of the NMLP Loan Documents shall
operate as a waiver of any such privilege, power or right. No waiver by Agent in
any instance shall constitute a waiver in any other instance.
7. Warranties and Representations. The Indemnitor represents and
warrants to Agent, as of the date hereof:
7.1 No Claim. There is no claim pending against NMLP, any NMLP
Subsidiary, any Loan Party or any Indemnified Party under or related to the
Indemnified Matters and to the Indemnitor's knowledge, no such claim threatened;
7.2 Valid and Binding. This Agreement constitutes the legal, valid and
binding obligation of the Indemnitor in accordance with the terms hereof;
7.3 No Violations. The performance of the obligations evidenced hereby
will not constitute a violation of any law, order, regulation, contract,
organizational document or agreement to which the Indemnitor is a party or by
which any of its property is or may be bound;
7.4 No Litigation. There is no material litigation or administrative
proceeding now pending or to its knowledge threatened in writing against the
Indemnitor which if adversely decided could materially impair the ability of the
Indemnitor to pay or perform its obligation hereunder; and
7.5 Material Economic Benefit. The Indemnitor owns, directly or
indirectly, various ownership and economic interests in NMLP. The Indemnitor
further believes that the providing of the NMLP Loan to NMLP will constitute a
substantial and material benefit to the Indemnitor.
8. Multiple Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original. Each of the
counterparts shall constitute but one and the same instrument and shall be
binding upon each of the parties individually as fully and completely as if all
had signed but one instrument so that the liability of the Indemnitor hereunder
shall be unaffected by the failure of any of the undersigned to execute any or
all of said counterparts.
9. Notices. Any notice or other communication in connection with this
Agreement shall be in writing and (i) deposited in the
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United States mail, postage prepaid, by registered or certified mail,
or (ii) hand delivered by any commercially recognized courier service or
overnight delivery service, such as Federal Express, addressed as follows:
If to the Indemnitor:
NEWKIRK NL HOLDINGS, LLC
7 Bulfinch Place, Suite 500
Boston, Massachusetts 02114
Attention: Carolyn Tiffany, Chief Operating Officer
NEWKIRK MLP CORP.
7 Bulfinch Place, Suite 500
Boston, Massachusetts 02114
Attention: Carolyn Tiffany, Chief Operating Officer
VORNADO REALTY L.P.
888 7th Avenue
New York, New York 10019
Attention: Clifford Broser
(212) 894-7000
FAX: (212) 894-7071
VORNADO NEWKIRK L.L.C.
888 7th Avenue
New York, New York 10019
Attention: Clifford Broser
(212) 894-7000
FAX: (212) 894-7071
VNK L.L.C.
888 7th Avenue
New York, New York 10019
Attention: Clifford Broser
(212) 894-7000
FAX: (212) 894-7071
APOLLO REAL ESTATE INVESTMENT FUND III, L.P.
1301 Avenue of the Americas, 38th Floor
New York, New York 10019
Attn: Stuart Koenig
Facsimile Number: (212)515-3283
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with copies by regular mail or such hand delivery to:
Mark I. Fisher, Esquire
Katten Muchin Zavis Rosenman
575 Madison Avenue
New York, New York 10022-2585
(212) 940-8584
FAX: (212) 940-8776
David J. Heymann, Esquire
Post & Heymann, LLP
100 Jericho Quadrangle, Suite 214
Jericho, New York 11753
(516) 681-3636
FAX: (516) 433-2777
Arthur Adler, Esquire
Sullivan & Cromwell
125 Broad Street
New York, New York 10004-2498
(212) 558-4000
FAX (212) 558-3588
If to Agent:
Fleet National Bank
100 Federal Street
Boston, Massachusetts 02110
Attention: Mr. Scott C. Dow
Senior Vice President
with copies by regular mail or such hand delivery to:
Riemer & Braunstein LLP
Three Center Plaza
Boston, Massachusetts 02108
Attention: Steven J. Weinstein, Esquire
If to NMLP:
Newkirk Master Limited Partnership
100 Jericho Quadrangle, Suite 214
Jericho, New York 11753
Attention: Peter Braverman, Executive Vice President
And
The Newkirk Master Limited Partnership
7 Bulfinch Place, Suite 500
Boston, Massachusetts 02114
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Attention: Carolyn Tiffany, Chief Operating Officer
with copies by regular mail or such hand delivery to:
Post & Heymann, LLP
100 Jericho Quadrangle, Suite 214
Jericho, New York 11753
Attention: David J. Heymann, Esquire
And
Katten Muchin Zavis Rosenman
575 Madison Avenue
New York, New York 10022-2585
Attention: Mark I. Fisher, Esquire
And
Sullivan & Cromwell
125 Broad Street
New York, New York 10004
Attention: Arthur Adler, Esquire
Any such addressee may change its address for such notices to any other address
in the United States as such addressee shall have specified by written notice
given as set forth above.
All periods of notice shall be measured from the deemed date of
delivery. A notice shall be deemed to have been given, delivered and received,
when so delivered or tendered for delivery during customary business hours on a
Business Day at the specified address.
10. No Oral Change. No provision of this Agreement may be changed,
waived, discharged, or terminated orally by telephone or by any other means
except by an instrument in writing signed by the party against whom enforcement
of the change, waiver or discharge or termination is sought.
11. Parties Bound; Benefit. This Agreement shall be binding upon the
Indemnitor and its successors, assigns and shall be for the benefit of Agent and
the Lenders, and of any subsequent holder of the NMLP Loan and of any owner of a
participation interest therein. In the event the NMLP Loan is sold or
transferred, then the liability of the Indemnitor to Agent and the Lenders shall
then be in favor of both Agent and the Lenders originally named herein and each
subsequent holder of the NMLP Loan and any of interest therein.
12. Partial Invalidity. Each of the provisions hereof shall be
enforceable against each Indemnitor to the fullest extent now or hereafter
permitted by law. The invalidity or unenforceability of
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any provision hereof shall not limit the validity or enforceability of each
other provision hereof.
13. Governing Law and Consent to Jurisdiction. This Agreement and the
rights and obligations of the parties hereunder shall in all respects be
governed by and construed and enforced in accordance with the laws of the
Commonwealth of Massachusetts. The parties further agree that Agent may enforce
its rights under this Agreement including, but not limited to, the rights to sue
Indemnitor in accordance with applicable law. The Indemnitor hereby irrevocably
submits to the nonexclusive jurisdiction of any Massachusetts State or Federal
Court sitting in Massachusetts over any suit, action or proceeding arising out
of or relating to this Agreement and the Indemnitor hereby agrees and consents
that in addition to any methods of service of process provided for under
applicable law, all service of process in any such suit, action or proceeding in
any Massachusetts State or Federal Court sitting in Massachusetts may be made by
certified or registered mail, return receipt requested, directed to the
Indemnitor at the address for notice pursuant to Section 9 above and service so
made shall be completed fifteen (15) days after the same shall have been so
mailed.
14. Survival. Except as provided in Section 1.1 hereof, the
representations and warranties in Section 7 hereof and the indemnity in Section
1 hereof shall continue in effect and shall survive (among other events) any
payment and satisfaction of the NMLP Loan and the NMLP Obligations, any
termination or discharge of the NMLP Security Documents, or release of any NMLP
Collateral.
15. Acknowledgment of Pledge. The Indemnitor acknowledges that (i) in
accordance with the terms and provisions of the NMLP Security Documents, NMLP
has collaterally assigned to the Agent, on behalf of the Lenders, its right,
title and interest in and to this Indemnity Agreement and (ii) upon the receipt
of written notice from the Agent of the occurrence of an Event of Default, the
Indemnitor shall pay any amounts due hereunder to NMLP, to the Agent or as may
be otherwise directed by the Agent.
[SIGNATURE PAGES FOLLOW]
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Witness the execution and delivery hereof as an instrument deemed made
under seal as of the 24th day of November, 2003.
APOLLO REAL ESTATE INVESTMENT FUND III, L.P.,
A Delaware limited partnership
By: Apollo Real Estate Advisors III, L.P.,
a Delaware limited partnership,
its General Partner
By: Apollo Real Estate Capital
Advisors III, Inc.,
a Delaware corporation,
its General Partner
By:
----------------------------------------
Name: Stuart Koenig
Title: Vice President
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Witness the execution and delivery hereof as an instrument deemed made under
seal as of the 24th day of November, 2003.
NEWKIRK NL HOLDINGS LLC,
A Delaware limited liability company
By: Newkirk Manager (NV) Corp., its Manager
By:
----------------------------------------
Name: Carolyn Tiffany
Title: Chief Operating Officer
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Witness the execution and delivery hereof as an instrument deemed made under
seal as of the 24th day of November, 2003.
NEWKIRK MLP CORP.,
A Delaware corporation
By:
--------------------------------------
Name: Carolyn Tiffany
Title: Chief Operating Officer
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Witness the execution and delivery hereof as an instrument deemed made under
seal as of the 24th day of November, 2003.
VORNADO REALTY L.P.,
A Delaware limited partnership
By: Vornado Realty Trust, as
its General Partner
By:
-----------------------------------------
Name: Joseph Macnow
Title: Executive Vice President - Finance And
Administration, Chief Financial Officer
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Witness the execution and delivery hereof as an instrument deemed made under
seal as of the 24th day of November, 2003.
VORNADO NEWKIRK L.L.C.,
A Delaware limited liability company
By: Vornado Realty L.P., as its Member
By: Vornado Realty Trust, as
its General Partner
By:
-----------------------------------------
Name: Joseph Macnow
Title: Executive Vice President -
Finance And Administration,
Chief Financial Officer
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Witness the execution and delivery hereof as an instrument deemed made under
seal as of the 24th day of November, 2003.
VNK L.L.C.,
A Delaware limited liability company
By: Two Penn Plaza REIT, Inc., its sole member
By:
-------------------------------------------------
Name: Joseph Macnow
Title: Vice President and Chief Financial Officer
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Witness the execution and delivery hereof as an instrument deemed made under
seal as of the 24th day of November, 2003.
NMLP: THE NEWKIRK MASTER LIMITED
PARTNERSHIP, a Delaware limited partnership
By: MLP GP LLC, its General Partner
By: Newkirk MLP Corp., its Manager
By:
-------------------------------------
Name: Carolyn Tiffany
Title: Chief Operating Officer
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