Exhibit 10.95


 


INDEMNIFICATION
AND GUARANTY AGREEMENT


 


This Indemnification and Guaranty Agreement (this “Agreement”)
is entered into as of the 13th day of June, 2003, by Horizon Huntley Finance
LLC, a Delaware limited liability company (“HHFL”), Horizon Huntley LLC,
a Delaware limited liability company (“HHL”; HHFL and HHL are each
individually referred to herein as an “Indemnifying Party” and
collectively referred to herein as the “Indemnifying Parties”), and
Horizon Group Properties, Inc., a Maryland corporation (the “HGPI”), in
favor of The Prime Group, Inc., an Illinois corporation (“PGI”), Prime
Group Limited Partnership, an Illinois limited partnership (“PGLP”),
Prime Group II, L.P., an Illinois limited partnership (“PGII”), Prime
Group III, L.P., an Illinois limited partnership (“PGIII”), and Michael
W. Reschke (PGI, PGLP, PGII, PGIII and Michael W. Reschke are each individually
referred to herein as a “Prime Party” and collectively referred to
herein as the “Prime Parties”).


 


W
I T N E S S E T H:


 


WHEREAS, HHFL, HHL, HGI, PGI, Huntley Development
Company, an Illinois corporation (“HDC”), Prime/Huntley Meadows
Residential, Inc., an Illinois corporation (“P/HMRI”), and PGLP
Holdings, L.L.C., a Delaware limited liability company (“PGLP Holdings”),
have entered into the Partnership Interests Purchase Agreement, dated as of
June 13, 2003 (the “Purchase Agreement”);


 


WHEREAS, pursuant to separate Guarantees, each dated
as of December 18, 1995, as amended from time to time, the Prime Parties are
guarantors under the Amended and Restated Agreement and Assignment of Net
Profits Interests, dated as of October 27, 1999, by and among Huntley
Development Limited Partnership, an Illinois limited partnership, Huntley
Meadows Residential Venture, an Illinois partnership, and Beal Bank, S.S.B., a
Texas state savings bank, as amended by that certain First Amendment to Amended
and Restated Agreement and Assignment of Net Profits Interests, dated as of
January 30, 2002 (the “Beal Net Profits Assignment”);


 


WHEREAS, Michael W. Reschke has also guaranteed the
obligations under the Beal Mortgage Loan Documents (the Beal Mortgage Loan
Documents and the Beal Net Profits Assignment are collectively referred to
herein as the “Beal Agreements”);


 


WHEREAS, HHFL and HHL have agreed, as an inducement
for PGI, HDC, P/HRMI and PGLP to enter into the Purchase Agreement, and as a
condition to the closing of the transactions contemplated by the Purchase
Agreement, to unconditionally indemnify the Prime Parties and their respective officers, directors, employees,
partners, members, managers, shareholders, agents and affiliates
(collectively with the Prime Parties, the “Indemnified Parties”) from
and against any and all losses arising out of or relating to the Beal
Agreements, and HGPI has agreed to guarantee HHLF’s and HHL’s agreements and
obligations hereunder; and


 


WHEREAS, capitalized terms use herein and not
otherwise defined herein shall have the respective meanings ascribed to such
terms in the Purchase Agreement.


 


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NOW, THEREFORE, in consideration of the mutual
covenants and conditions hereinafter set forth, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto hereby agree as follows:


 


1.                                       Indemnification.  The Indemnifying Parties hereby agree to,
jointly and severally, unconditionally indemnify, defend and hold the
Indemnified Parties harmless from and in respect of any and all losses,
damages, claims, liabilities, obligations (including guarantee obligations),
suits, actions, judgments, liens, fees, taxes, penalties, costs and expenses of
any nature whatsoever (including legal fees and expenses) (collectively, “Losses“)
that they may incur arising out of, in connection with or relating to the Prime
Parties’ respective guarantee obligations under the Beal Agreements.


 


2.                                       Guarantee.  HGPI hereby unconditionally and irrevocably
guarantees to the Indemnified Parties, without offset or deduction, (a) the
prompt and full discharge when due by the Indemnifying Parties of all of the
Indemnifying Parties’ payment obligations under this Agreement in accordance
with the terms hereof, the guarantee under this clause (a) constituting hereby
a guarantee of payment and not of collection, and (b) the punctual and faithful
performance by HGPI of each and every duty, agreement, covenant and other
obligation of the Indemnifying Parties under and in accordance with the terms
of this Agreement.  HGPI also hereby
agrees that, if any Indemnifying Party fails to perform and discharge promptly
all such obligations and liabilities in accordance with such terms, HGPI will,
forthwith, upon demand, perform and discharge the same.  The obligations of the Indemnifying Parties
hereby guaranteed are hereinafter called the “Obligations”.  The unconditional obligation of HGPI
hereunder will not be affected, impaired or released by any extension, waiver
or amendment.  Without limiting the
generality of the foregoing, HGPI specifically agrees that it shall not be
necessary or required, and that it shall not be entitled to require, that the
Indemnified Parties file suit or proceed to obtain or assert a claim for
personal judgment against any Indemnifying Party for the Obligations or make
any effort at collection of the Obligations from any Indemnifying Party or
foreclose against or seek to realize upon any security now or hereafter
existing for the Obligations or file suit or proceed to obtain or assert a
claim for personal judgment against any other party liable for the Obligations
or make any effort at collection of the Obligations from any such other party
or exercise or assert any other right or remedy to which any of them is or may
be entitled in connection with the Obligations or any security or other guarantee
therefor or assert or file any claim against the assets of any Indemnifying
Party or other person liable for the Obligations, or any part thereof, before
or as a condition of enforcing the liability of  HGPI under this Section 2 or requiring payment of said
Obligations by HGPI hereunder, or at any time thereafter.


 


3.                                       Consent.  None of the Indemnifying Parties or HGPI
will, without the prior written consent of the Prime Parties, modify or amend
any of the Beal Agreements in any manner that could reasonably be expected to
extend or increase the liabilities or obligations of any Prime Party thereunder
or with respect thereto.


 


4.                                       Severability.  If any term, provision, covenant or
restriction of this Agreement is held by a governmental entity to be invalid,
void, unenforceable or against its regulatory policy, the remainder of the
terms, provisions, covenants and restrictions of this Agreement shall remain in
full force and effect and shall in no way be affected, impaired or invalidated.


 


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5.                                       Governing
Law.  This Agreement shall be
governed and construed in accordance with the laws of the State of Illinois
applicable to contracts to be made and performed entirely therein without
giving effect to the principles of conflicts of law thereof or of any other
jurisdiction.


 


6.                                       Jurisdiction.                               Each
of the parties hereto hereby expressly and irrevocably submits to the
non-exclusive personal jurisdiction of the courts of the State of Illinois
(collectively, the “Illinois Courts“), preserving, however, all rights
of removal to any federal court located in the Northern District of the State
of Illinois under 28 U.S.C. Section 1441, in connection with all disputes
arising out of or in connection with this Agreement or the transactions
contemplated hereby and agrees not to commence any litigation relating thereto
except in such courts.  Each party
hereby waives the right to any other jurisdiction or venue for any litigation
arising out of or in connection with this Agreement or the transactions
contemplated hereby to which any of them may be entitled by reason of its
present or future domicile. 
Notwithstanding the foregoing, each of the parties hereto agrees that
each of the other parties shall have the right to bring any action or
proceeding for enforcement of a judgment entered by the Illinois Courts in any
other court or jurisdiction.


 


7.                                       Service
of Process.  Each party irrevocably
consents to the service of process outside the territorial jurisdiction of the
courts referred to in Section 6 hereof in any such action or proceeding by
mailing copies thereof by registered United States mail, postage prepaid,
return receipt requested.  However, the
foregoing shall not limit the right of a party to effect service of process on
the other party by any other legally available method.


 


8.                                       Recovery
of Fees by Prevailing Party.  In any action at law or in equity to enforce
any of the provisions or rights under this Agreement, the party which does not
prevail in such litigation, as determined by the court in a final judgment or
decree, shall pay to the prevailing party all costs, expenses and reasonable
attorneys’ fees incurred by the prevailing party, including such costs,
expenses and fees of any appeals.  If
the prevailing party shall recover judgment in any action or proceeding, its
costs, expenses and attorneys’ fees shall be included as part of such judgment.


 


9.                                       Counterparts.  This Agreement may be executed in multiple
counterparts, all of which shall together be considered one and the same
agreement.


 


10.                                 Waivers.  Any failure of any of the Indemnifying
Parties to comply with any obligation, covenant, agreement or condition herein
may be waived by the Indemnified Parties only by a written instrument signed by
the Indemnified Parties, but such waiver or failure to insist upon strict
compliance with such obligation, covenant, agreement or condition shall not
operate as a waiver of, or estoppel with respect to, any subsequent or other
failure.


 


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IN
WITNESS WHEREOF, the parties hereto have duly executed
this Agreement as of the day and year first above written.


 


 


	
   

  	
  HORIZON HUNTLEY
  FINANCE LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  HORIZON HUNTLEY LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  HORIZON GROUP
  PROPERTIES, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
					



 


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  Michael W. Reschke

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  PRIME GROUP LIMITED
  PARTNERSHIP

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  PRIME GROUP II,
  L.P.,

  
	
   

  	
  an Illinois limited partnership

  
	
   

  	
  By: PGLP, INC., Managing General Partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  PRIME GROUP III,
  L.P.,

  
	
   

  	
  an Illinois limited partnership

  
	
   

  	
  By: PGLP, INC., Managing General Partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  THE PRIME GROUP,
  INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
					



 


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