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Exhibit 10.98
INDEMNITY AGREEMENT
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" )
and
Reeda Management AB, corp.reg.nr 556657-5113 ,
with address Fredrikshovsgatan 2, SE 11523 Stockholm, Sweden
("Reeda")
And
Backstugan AB, corp.reg.nr 556459-4264 , with
address Lövängsvägen 41, SE 18730 Täby, Sweden
(" Backstugan ")
and
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 "
and
CROWN NORTHCORP, INC. a corporation registered in the
State of Delaware with an office at 1251 Dublin Road, Columbus,
Ohio 43215 USA ( "CNI" ).
BACKGROUND INFORMATION
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A.
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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 ").
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B.
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In conjunction and in accordance with the SPA,
CNI has executed and delivered two (2) guarantee
undertakings:
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1.
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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
").
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2.
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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 ;").
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C.
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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" ).
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STATEMENT OF
AGREEMENT
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
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1.1
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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.
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1.2
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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.
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2. LIMITATION OF LIABILITY
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2.1
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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.
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3. AUTHORISATION TO MAKE
PAYMENTS
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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.
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4. WAIVER OF DEFENCES
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4.1
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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:
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4.1.1
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any time or waiver granted to, or composition
with any person;
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4.1.2
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the release of any rights under the CNI Guarantee
No. 2;
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4.1.3
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any extension, renewal or replacement of the CNI
Guarantee No. 2;
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4.1.4
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any amendment or replacement of or variation to
the terms of the CNI Guarantee No. 2;
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4.1.5
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any unenforceability, illegality or invalidity of
any obligation of any person under the CNI Guarantee No. 2;
or
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4.1.6
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any insolvency or similar proceedings.
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5. REPRESENTATIONS OF THE
INDEMNITORS
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5.1
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Each of the Indemnitors severally makes the
following representation to CNI on the date of this
Agreement:
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5.1.1
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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.
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6. NOTICES
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6.1
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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.
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6.2
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Any such notice, consent, request, demand or
other communication:
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6.2.1
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delivered personally shall be deemed to have been
received immediately upon delivery;
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6.2.2
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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.
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6.2.3
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sent by fax shall be deemed to have been received
upon transmission.
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7. MODIFICATION OF THE COUNTER
INDEMNITY
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This Agreement may not be modified, amended,
renewed or extended except with CNI’s prior written
consent.
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8. RIGHTS AND REMEDIES
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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
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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.
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9. RELEASE
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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.
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10. MISCELLANEOUS
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10.1
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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.
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10.2
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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
g
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