INDEMNIFICATION AGREEMENT
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EXHIBIT
10.23
This Indemnification Agreement (the
"Agreement") is effective as of the 13th day of
May, 2010, between Xxxxx X. Xxxxx, Xx., an individual maintaining an address at
0000 X.X. Xxxxxxx Xxxx, Xxxxxxxx, Xxxxxxx 00000 (together with his heirs,
representatives, successors and assigns, “Guarantor”); B&M Construction Co.,
Inc., a Florida corporation, having its principal place of business at 0000 XXX
Xxxxx, Xxxxxxxx, Xxxxxxx 00000 ("B&M”); and SSGI, Inc., a Florida
corporation having its principal place of business at 0000 Xxxxxxxxx Xxxx, Xxxxx
0, Xxxx Xxxx Xxxxx, Xxxxxxx 00000 ("SSGI"). B&M and SSGI are
referred to collectively herein as “Indemnitor”.
BACKGROUND
INFORMATION
Guarantor is a majority owner of
B&M and in connection with such ownership interest has personally guaranteed
certain obligations of B&M to Wachovia Bank pursuant to a $1,000,000 line of
credit facility (the “Guaranty”). Guarantor is now entering into an
agreement with Indemnitor pursuant to which Guarantor will be selling his
ownership interest in B&M. In connection with such sale,
Indemnitor has agreed to indemnify Guarantor and hold him harmless from any
liability incurred by Guarantor in connection with the
Guaranty. Accordingly, in consideration of the mutual covenants and
agreements contained herein, the parties agree as follows:
OPERATIVE PROVISIONS
1. Indemnification.
1.1 Scope. Indemnitor,
jointly and severally, indemnifies and agrees to hold Guarantor harmless, and
agrees to defend Guarantor from, and reimburse Guarantor in full for, any and
all losses, damages, costs, expenses, liabilities, fines, penalties or interest,
obligations and claims of any kind, including, without limitation, reasonable
attorneys’ fees and other legal costs and expenses, that Guarantor may at any
time suffer or incur or become subject to, in connection with the Guaranty
(collectively, the “Loss”).
1.2 Notification and
Responsibility for Defense. In case any Loss shall be
brought to the attention of Guarantor, Guarantor shall promptly notify the
Indemnitor in writing and provide the Indemnitor with the right to assume the
defense of the Loss, including the employment of counsel and payment of all fees
and expenses relating thereto. Guarantor shall have the right to
employ separate counsel in the defense of any such matter and participate in the
defense thereof, but satisfaction of the fees and expenses of such counsel shall
be the responsibility of Guarantor unless: (a) the Indemnitor has failed to
assume the defense and employ competent counsel; or (b) the claim is against
both the Indemnitor and Guarantor and Guarantor is advised by its legal counsel
that representation of the Indemnitor and Guarantor by the same counsel creates
a conflict of interest for such counsel which cannot be waived by the parties in
accordance with applicable rules governing the counsel’s State Bar.
2. Miscellaneous
Provisions.
2.1 Notices. All
notices or other communications required or permitted to be given pursuant to
this Agreement shall be in writing and shall be considered as properly given or
made if hand delivered, or mailed from within the United States by certified
mail, to the applicable address set forth in the preamble to this Agreement, or
to such other address as any such party may have designated by like notice
forwarded to the other party hereto. All notices, except notices of
change of address, shall be deemed given when mailed or hand delivered and
notices of change of address shall be deemed given when
received.
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2.2 Binding Agreements;
Assignability.Each of the provisions and agreements herein contained
shall be binding upon and inure to the benefit of the respective parties hereto,
as well as their personal representatives, heirs, devisees, and
successors. This Agreement is not assignable by
Indemnitor.
2.3 Entire
Agreement. This Agreement and the other documents referenced
herein constitute the entire understanding of the parties hereto with respect to
the subject matter hereof, and no amendment, modification or alteration of the
terms hereof shall be binding unless the same be in writing, dated subsequent to
the date hereof and executed by each of the parties hereto.
2.4 Severability. Every
provision of this Agreement is intended to be severable. If any term
or provision hereof is illegal or invalid for any reason whatever, such
illegality or invalidity shall not affect the validity of the remainder of this
Agreement.
2.5 Application of Florida
Law. This Agreement, and the application or interpretation
thereof, shall be governed exclusively by its terms and by the laws of the State
of Florida, and venue for any legal actions shall be Palm County,
Florida.
2.6 Legal Fees and
Costs. If a legal action is initiated by any party to this
Agreement against another, arising out of or relating to the alleged performance
or non-performance of any right or obligation established hereunder, or any
dispute concerning the same, any and all fees, costs and expenses reasonably
incurred by each successful party or its legal counsel in investigating,
preparing for, prosecuting, defending against, or providing evidence, producing
documents or taking any other action in respect of, such action shall be the
joint and several obligation of and shall be paid or reimbursed by the
unsuccessful party(ies).
[Remainder
of page intentional left blank; signature page to follow.]
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In
witness whereof, the parties have executed this Agreement as of the date set
forth in the preamble.
| “GUARANTOR” | ||
| /s/ Xxxxx X. Xxxxx, Xx. | ||
| Xxxxx X. Xxxxx, Xx. | ||
| “INDEMNITOR” | ||
| B&M Construction Co., Inc. | ||
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By:
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/s/ Xxxxxxx X. Xxx
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Xxxxxxx
X. Xxx, President
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By:
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/s/ Xxxx X. Xxxxx
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Xxxx
X. Xxxxx, Chief Financial Officer
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By:
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/s/ Xxxxx X. Xxxxxxxxx
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Xxxxx
X. Xxxxxxxxx, President &
CEO
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