INDEMNITY AGREEMENT
The undersigned, XXXXXXXX BROS. CONSTRUCTION, INC., a Minnesota
corporation ("Xxxxxxxx"), XXXXXX X. XXXXXXXX, XXXXX X. XXXXXXXX, XXXXX XXXXXX,
XXXXXXX X. XXXXX and XXXXXX X. XXXXXXXX (hereinafter collectively referred to as
the "Indemnitors"), jointly and severally, in consideration of FIRST BANK
NATIONAL ASSOCIATION, a national banking association ("Indemnitee"), agreeing to
make a revolving construction and development loan ("Loan") in the amount of
Five Million and No/100 Dollars ($5,000,000.00) to Xxxxxxxx Bros. Construction,
Inc., and for the purpose of inducing the Indemnitee to make the Loan and with
knowledge that Indemnitee intends to rely upon the certifications and
undertakings set forth herein agree as follows:
1. For purposes of this Agreement, (a) the term "Hazardous
Materials or Wastes" shall mean any hazardous or toxic
materials, pollutants, chemicals, or contaminants, including
without limitation asbestos, polychlorinated biphenyls (PCBs)
and petroleum products as defined, determined or identified as
such in any Laws, as hereinafter defined, and (b) the term
"Laws" means any federal, state or local laws, rules or
regulations (whether now existing or hereinafter enacted or
promulgated) including, without limitation, the Clean Water
Act, 33 X.X.X.xx.xx. 1251 et seq. (1972), the Clean Air Act,
42 X.X.X.xx.xx. 7401 et seq. (1970), the Comprehensive
Environmental Response, Compensation, and Liability Act of
1980, as amended, 42 X.X.X.xx. 1802, and the Resource
Conservation and Recovery Act, 42 X.X.X.xx. 6901 et seq., the
Toxic Substances Control Act, or other similar laws, as well
as implementing regulations enacted or promulgated to protect
the public health, welfare or the environment, including state
or local laws, regulations or ordinances, as well as any
judicial or administrative interpretation thereof, including
any judicial or administrative orders or judgments.
2. Indemnitors hereby agree to indemnify Indemnitee and hold
Indemnitee harmless from and against all loss, liability,
damage and expense, including attorneys' fees, suffered or
incurred by the Indemnitee as a result of the existence of
Hazardous Materials or Wastes upon that certain real estate
and the improvements located thereon described in Exhibit "A"
attached hereto and made a part hereof together with any
additional real estate and the improvements thereon
which Xxxxxxxx owns or acquires and which is or becomes a
Construction Project or a Development Project as defined in
that certain Revolving Construction and Development Loan
Agreement of even date herewith by and between Xxxxxxxx and
Indemnitee (hereinafter all such real estate and improvements
shall be referred to as the "Premises"), including any loss of
value of the Premises as a result of the foregoing, whether as
holder of the Loan, as mortgagee in possession or as
successor-in-interest fee owner to Xxxxxxxx Bros.
Construction, Inc., by foreclosure proceedings or deed in lieu
of foreclosure.
3. It is understood and agreed that the foregoing undertaking to
indemnify Indemnitee shall include but not be limited to the
assertion against Indemnitee of any claim, whenever raised:
(a) relating to the presence of Hazardous Materials or Wastes
upon the Premises first occurring prior to the date on which
Xxxxxxxx Bros. Construction, Inc., is no longer fee owner of
the Premises, or (b) relating to the failure to comply with
any local, state, or federal statutes and/or regulations
regarding Hazardous Materials or Wastes which were present
upon the Premises prior to the date on which Xxxxxxxx Bros.
Construction, Inc., is no longer fee owner of the Premises,
and shall continue in full force and effect as long as
Indemnitee retains an estate or interest in the Premises or so
long as Indemnitee shall have liability by reason of having
held such estate or interest in the Premises. Such undertaking
to indemnify Indemnitee shall in no event be limited,
terminated or extinguished by, or merged into, the exercise of
any of Indemnitee's remedies under the documents evidencing
and securing the Loan (hereinafter collectively referred to as
the "Security Documents"). Except as may be otherwise
expressly agreed in writing, the liability of any party under
this Agreement shall in no way be limited or impaired by any
amendment or modification of the provisions of any Security
Documents to or with Indemnitee, Indemnitors or any person who
succeeds Xxxxxxxx Bros. Construction, Inc., as owner of the
Premises. In addition, the liability of any party under this
Agreement shall in no way be limited or impaired by (i) any
extensions of time for performance required by any of the
Security Documents, (ii) any sale, assignment or foreclosure
of any Security Documents or any sale or transfer of all or
any part of the Premises, (iii) any exculpatory provision in
any of the Security Documents limiting Indemnitee's recourse
to property encumbered by the Security Documents or to any
other security, or limiting Indemnitee's rights to a
deficiency judgment against the Indemnitors except as
otherwise expressly provided in the Security Documents, (iv)
the release of the Indemnitors or any other person from
performance or observance of any of the agreements, covenants,
terms or conditions contained in any of the Security Documents
by operation of law, Indemnitee's voluntary act, or otherwise,
(v) the release or substitution in whole or in part of any
security for the Loan, (vi) Indemnitee's failure to record or
file any Security Document (or Indemnitee'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 Loan; and, in any such case, whether with or
without notice of Indemnitors and with or without
consideration, (vii) any limitation of liability language in
any Security Documents, unless such limitation of liability
language expressly limits liability hereunder or with respect
hereto, or (viii) repayment of the Loan.
4. No provision of this Agreement may be changed, waived,
discharged or terminated verbally or by any other means except
by an instrument in writing signed by the party against whom
enforcement of the change, waiver, discharge or termination is
sought.
5. Except as herein provided, this Agreement shall be binding
upon the Indemnitors and their respective successors and
assigns and shall inure to the benefit of Indemnitee and its
successors and assigns. The indemnity of the Indemnitors
hereunder shall be binding on all successors in interest of
Indemnitors and on each and every transferee of the Premises.
6. 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 State of
Minnesota.
7. Any notice which any party hereto may desire or may be
required to give to any other party shall be in writing and
either (a) mailed by certified mail, return receipt requested,
or (b) sent by an overnight carrier which provides for a
return receipt. Any such notice shall be sent to the
respective party's addresses as set forth below or to such
other address as such party may, by notice in writing,
designate as its address. Any such notice shall constitute
service of notice hereunder three (3) days after the mailing
thereof by certified mail or one (1) day after the sending
thereof by overnight carrier.
8. The indemnities given in this Agreement are in addition to and
separate from those set forth in the Security Documents. The
indemnities given in this Agreement are not given as security
for repayment of the Loan and shall fully survive repayment of
the Loan.
9. The indemnities, promises and agreements herein shall be
construed to be and are hereby declared to be joint and
several in each and every particular and shall be fully
binding upon and enforceable against any or all of such
parties or persons, and neither the dissolution, the death nor
release of any person or party to this Agreement shall affect
or release the joint and several liability of any other person
or party.
IN WITNESS WHEREOF, Indemnitors have executed this Agreement as of the
_____ day of April, 1997.
XXXXXXXX BROS. CONSTRUCTION, INC.,
a Minnesota corporation
By: _________________________________
Xxxxx Xxxxxx
Its: Chief Executive Officer
Address: 000 Xxxx Xxxxxxx Xxxxxxxxx
Xxxxxxx, Xxxxxxxxx 00000
Telephone No.:______________________________
___________________
Xxxxxx X. Xxxxxxxx
Home Address:___________________
__________________
Home Telephone No.:_____________
___________________
Xxxxx X. Xxxxxxxx
Home Address:___________________
__________________
Home Telephone No.:_____________
___________________
Xxxxx Xxxxxx
Home Address:___________________
__________________
Home Telephone No.:_____________
___________________
Xxxxxxx X. Xxxxx
Home Address:___________________
__________________
Home Telephone No.:_____________
___________________
Xxxxxx X. Xxxxxxxx
Home Address:___________________
__________________
Home Telephone No.:_____________
EXHIBIT "A"
LEGAL DESCRIPTION
Parcel I:
Xxx 0, Xxxxx 0, Xxxx Xxxx 0xx Addition, according to the recorded plat thereof,
Hennepin County, Minnesota.
Abstract property and Torrens Certificate Number: 843902
Parcel II:
Xxx 0, Xxxxx 0, Xxx Xxxxxxxxx 4th Addition, according to the recorded plat
thereof, Dakota County, Minnesota.
Abstract.
Parcel III:
Xxx 00, Xxxxx 0, Xxx Xxxxxxxxx 5th Addition according to the recorded plat
thereof, Dakota County, Minnesota.
Abstract.
