THIS INDEMNITY
AGREEMENT (this “Agreement”) is made and entered into
this 30th day of June, 2006 by and among:
Forum
European Realty Income II, LP, organized under the laws of the Cayman Islands
with an office at 150 Washington Avenue, Suite 250, Santa Fe,
New Mexico USA ( “Forum” )
Reeda
Management AB, corp.reg.nr 556657-5113 , with address
Fredrikshovsgatan 2, SE 11523 Stockholm, Sweden
(“Reeda”)
Backstugan
AB, corp.reg.nr
556459-4264 , with address Lövängsvägen 41,
SE 18730 Täby, Sweden (“ Backstugan
”)
Lars
Ransgart Management AB ,
corp. reg. nr 556386-8479, with address Skandiavägen 31, SE
18263 Djursholm, Sweden (“ Ransgart Management,
”). Forum, Reeda, Sandberg, and Ransgart Management are
collectively referred to herein as “ Indemnitors
”
CROWN
NORTHCORP, INC. a
corporation registered in the State of Delaware with an office at
1251 Dublin Road, Columbus, Ohio 43215 USA (
“CNI” ).
|
A.
|
|
Niam Retail Holding AB (Reg.
No. 556660-1133)(“ Seller ”) and AB
Grundstenen 109565 (under change of name to Jord AB)(Reb.
No. 556697-9554)(“ Buyer ”) entered into a
share purchase agreement dated 3 May 2006 (the “
SPA ”).
|
|
B.
|
|
In
conjunction and in accordance with the SPA, CNI has executed and
delivered two (2) guarantee undertakings:
|
|
|
1.
|
|
A
guarantee undertaking between CNI and Niam III Holding AB, a copy
of which is attached hereto as Exhibit A and incorporated by
reference herein (“ Guarantee No. 1
”).
|
|
|
2.
|
|
A
guarantee undertaking among CNI, Seller and Crown Asset Management
AB, a copy of which is attached hereto as Exhibit B and
incorporated by reference herein (“ Guarantee
No. 2 ;”).
|
|
C.
|
|
Indemnitors acknowledge that CNI, at
Indemnitors’ request, entered into the CNI Guarantee
No. 2 to guarantee the due and punctual fulfillment of all of
the Seller’s obligations to Buyer under the SPA related to
Guarantee No. 2 up to an amount not exceeding SEK 27,098,043
for the period from 1 June 2006 (the “Closing
Date” ) to the date falling 14 months after the
Closing Date (the “Guarantee Period”
).
|
In
consideration of CNI entering into and otherwise accepting
liability under the CNI Guarantee No. 2, Indemnitors hereby
agree with CNI as follows:
1. INDEMNITY
AGAINST LIABILITY
|
1.1
|
|
Indemnitors shall indemnify CNI and
keep CNI indemnified against all demands, costs, claims,
liabilities, losses, costs and expenses arising in relation to or
out of the CNI Guarantee No. 2 provided, however, that CNI shall
only be entitled to demand any amount CNI is obliged to pay under
the CNI Guarantee No. 2 following a demand by the Buyer and
CNI’s compliance with paragraph 3.
|
|
1.2
|
|
Indemnitors shall pay such sums to
CNI as CNI is obliged to pay within five Business Days of written
demand together with interest on them from the date five Business
Days following such demand for payment under this Agreement until
payment of them in full by us in full at the rate of 2% per annum
above the cost to CNI of acquiring the necessary funds in such
currency and manner as CNI may from time to time decide.
|
2.
LIMITATION OF LIABILITY
|
2.1
|
|
Indemnitors’ liability to
indemnify CNI on account of any payment by CNI under the CNI
Guarantee No. 2 shall be limited severally to a maximum
aggregate amount of SEK 27,098,043. Further, each
Indemnitor’s liability in respect of any claims made under
this under this Agreement shall be borne in the amounts set forth
on Schedule 2.1.
|
3.
AUTHORISATION TO MAKE PAYMENTS
|
|
|
Indemnitors hereby irrevocably
authorize CNI to agree to any demands which appear on their face to
be validly made under the CNI Guarantee No. 2 without any
further reference to or authority from Indemnitors, subject to CNI
having received legal advice from CNI’s counsel in Sweden
that the sum demanded under the SPA is due and payable by CNI and
Indemnitors agree that any such obligations and liabilities shall
be binding on the Indemnitors and shall, as between CNI and the
Indemnitors, be accepted by Indemnitors as conclusive evidence that
CNI was liable to pay or comply with it.
|
|
4.1
|
|
Indemnitors liability under this
Agreement will not be affected by an act, omission, matter or thing
which would reduce, release or prejudice any of Indemnitors’
liability under this Agreement (without limitation and whether or
not known to Indemnitors or CNI) including:
|
2
|
4.1.1
|
|
any
time or waiver granted to, or composition with any
person;
|
|
|
|
|
|
4.1.2
|
|
the
release of any rights under the CNI Guarantee
No. 2;
|
|
|
|
|
|
4.1.3
|
|
any
extension, renewal or replacement of the CNI Guarantee
No. 2;
|
|
|
|
|
|
4.1.4
|
|
any
amendment or replacement of or variation to the terms of the CNI
Guarantee No. 2;
|
|
|
|
|
|
4.1.5
|
|
any
unenforceability, illegality or invalidity of any obligation of any
person under the CNI Guarantee No. 2; or
|
|
|
|
|
|
4.1.6
|
|
any
insolvency or similar proceedings.
|
5.
REPRESENTATIONS OF THE INDEMNITORS
|
5.1
|
|
Each of the Indemnitors severally
makes the following representation to CNI on the date of this
Agreement:
|
|
|
|
|
|
5.1.1
|
|
He
or it is duly authorized to enter into this Agreement and has taken
all necessary actions to enter into and perform the obligations set
forth in this Agreement.
|
|
6.1
|
|
Every notice, consent, request,
demand or other communication under this Agreement shall be in
writing delivered personally, by first class prepaid post or fax
and shall be sent to the address or fax number of the person
concerned as is notified to it by the other parties to this
Agreement or, in relation to CNI at CNI’s option, to any of
CNI’s officers at any place or by dispatching it addressed to
CNI at CNI’s registered or principal office for the time
being.
|
|
|
|
|
|
6.2
|
|
Any
such notice, consent, request, demand or other
communication:
|
|
|
|
|
|
6.2.1
|
|
delivered personally shall be deemed
to have been received immediately upon delivery;
|
|
|
|
|
|
6.2.2
|
|
sent by post in Sweden an address in
Sweden shall be deemed to have been received at the opening of
business on the first working day following the day on which it was
posted, even if returned undelivered, otherwise such notice,
consent, request, demand or other communication sent by post shall
be deemed to have been received at the opening of business on the
tenth working day following the day on which it was posted, even if
returned undelivered.
|
|
|
|
|
|
6.2.3
|
|
sent by fax shall be deemed to have
been received upon transmission.
|
7.
MODIFICATION OF THE COUNTER INDEMNITY
|
|
|
|
This Agreement may not be modified,
amended, renewed or extended except with CNI’s prior written
consent.
|
|
|
|
|
CNI’s rights hereunder are
cumulative, may be exercised as often as considered appropriate and
are in addition to the general law. Such rights (whether
arising
|
3
|
|
|
|
hereunder or
under the general law) shall not be capable of being waived or
varied otherwise than by an express waiver or variation in writing
and, in particular, any failure to exercise or any delay in
exercising any of such rights shall not operate as a waiver or
variation of that or any other such right, any defective or partial
exercise of any such rights shall not preclude any other or further
exercise of that or any other such right, and no act or course of
conduct or negotiation by CNI or on CNI’s behalf shall in any
way preclude CNI from exercising any such right or constitute a
suspension or any variation of any such right.
|
|
|
|
|
Indemnitors shall be released from
their obligations under this Agreement upon the earlier of
(i) ten days following the last day on which, under the terms
of the CNI Guarantee No. 2, CNI can receive a claim under the
CNI Guarantee No. 2 (provided that no claim is then
outstanding or notice of a claim or proposed claim has been made by
such date); and (ii) upon CNI being fully and irrevocably
released from CNI’s obligations, actual, contingent or
otherwise, under the CNI Guarantee No. 2.
|
|
10.1
|
|
Indemnitors’ liability to
indemnify CNI under this Agreement shall be a continuing liability
and will extend to the ultimate balance of sums payable by
Indemnitors to CNI under this Agreement regardless of any
intermediate payment or discharge in whole or part.
|
|
10.2
|
|
CNI’s rights under this
Agreement shall be in addition to and not in any way prejudiced by
any other rights CNI may have under the SPA or any other security
or otherwise howsoever (and whether against us or against any other
legal person) and may be enforced against us without first having
recourse to any such right and without taking any steps or
proceedings against any other legal person. CNI may at any time and
without reference to Indemnitors give time for payment or grant any
other indulgence and give up, deal with, va
|
|