ENVIRONMENTAL INDEMNIFICATION AGREEMENT
Exhibit 10.2
THIS
ENVIRONMENTAL INDEMNIFICATION AGREEMENT (“Agreement”) is executed to be
effective as of August 28, 2008 (the “Effective Date”) by and among BANK
RENTALS, LLC (“Lessor”) and Xxxxxxx X. Xxxxx, XX (“Xxxxx” and, collectively with
Lessor, “Indemnitors”) and 1ST INDEPENDENCE BANK, INC. (“1st
Independence”).
WHEREAS,
contemporaneously herewith, 1st Independence and Lessor have entered into a
lease agreement (the “Lease”) with respect to that certain real estate located
at 0000 Xxxx 00xx Xxxxxx, Xxxxxxxxxxxxxx, Xxxxxxx (the “Premises”).
NOW
THEREFORE, in consideration of the foregoing and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Indemnitors and 1st Independence hereby agree as follows:
1. Definitions. As used
herein, the following terms have the following
meanings:
1.1. Clean-Up: Removal
and/or remediation of Contamination required by applicable Environmental Laws
and in accordance with good commercial practice.
1.2. Contaminants: All
substances and compounds of the type, quantity or condition prohibited or
reportable under any Environmental Law, including without limitation, materials
containing asbestos or urea formaldehyde, explosives, gasoline and petroleum
products, and radioactive materials.
1.3. Contamination: The
presence of, disposal, discharge or release on, from or to the Premises of
Contaminants, and the storage or disposal of Contaminants which violates
Environmental Laws.
1.4. Environmental
Laws: Any and all applicable federal, state, or county or
municipal laws, whether now in force or as amended or enacted in the future,
pertaining to public health or the environment, including, without limitation,
the Comprehensive Environmental Response, Compensation and Liability Act of
1980, the Resource Conservation and Recovery Act of 1976 and the Superfund
Amendments and Reauthorization Act of 1987.
1.5. Regulatory
Actions: Any claim, action or proceeding brought or instigated
by any governmental authority in connection with the Premises pursuant to any
Environmental Law.
1.6. Third Party
Claims: Third party claims (other than Regulatory Actions)
based on negligence, trespass, strict liability, nuisance, toxic tort or
detriment to human health or welfare due to Contamination at the
Premises.
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2.
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Covenants.
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2.1. Indemnitors
and 1st Independence will not do and will exercise due care to prevent anything
that will cause the Premises to be in violation of, or will subject the Premises
to any Clean-Up obligations under, Environmental Laws.
2.2. Indemnitors
and 1st Independence will promptly notify the other party, in writing, but in
any event within ten (10) days, of its knowledge of any existing, pending or
threatened (a) Regulatory Action, (b) Third Party Claims or (c) contamination of
the Premises.
3. Indemnities.
3.1. Indemnitors
agree to indemnify and save lst Independence, its agents, employees and
contractors harmless from all costs and expenses of and from all Regulatory
Actions and Third Party Claims arising out of Contamination and Clean-Up to the
extent such costs and expenses arise from or relate to the condition of the
Premises prior to the Effective Date.
3.2. Indemnitors
agree to indemnify and save lst Independence harmless from any liability
incurred by lst Independence arising out of Third Party Claims and Regulatory
Actions to the extent such liability arises from or relates to the condition of
the Premises prior to the Effective Date.
3.3. lst
Independence agrees to indemnify and save Indemnitors, their agents, employees
and contractors harmless from all costs and expenses of and from all Regulatory
Actions and Third Party Claims arising out of Contamination and Clean-Up to the
extent such costs and expenses arise from or relate to (a) contamination first
occurring on or after the Effective Date or (b) the actions or omissions of lst
Independence on or after the Effective Date; provided, however, that for
purposes of this Section 3.3, lst Independence’s status as a tenant on the
Premises shall not, by itself, be considered to be an act or omission giving
rise to indemnification obligations hereunder.
3.4. lst
Independence agrees to indemnify and save Indemnitors harmless from any
liability incurred by Indemnitors arising out of Third Party Claims and
Regulatory Actions to the extent such liability arises from or relates to (a)
Contamination first occurring on or after the Effective Date or (b) the actions
or omissions of lst Independence on or after the Effective Date; provided,
however, that for purposes of this Section 3.4, lst Independence’s status as
tenant on the Premises shall not, by itself, be considered to be an act or
omission giving rise to indemnification obligations hereunder.
3.5. The
party providing the indemnity shall have the right to control any action for
which indemnity is required through counsel of its choice; provided, however, at
the other party’s option, such party may participate in such action and appoint
its own counsel at its own cost and expense. If the party providing
indemnity fails to notify the other party in writing of its intention to control
such action within thirty (30) days (or five (5) days before the lapse of a
shorter period of time as may be required to respond to such claims) of notice
of such claims, such party shall have the right to undertake the
control,
conduct
or settlement of such claims through its own counsel at the other party’s
reasonable expense. In the event any proposed settlement includes
non-monetary relief, including Clean-Up, lst Independence may agree to such
Clean-Up and settle such matter only with the consent of Indemnitors, which
consent shall not be unreasonably withheld or delayed; provided, however, if
Indemnitors do not notify lst Independence as to whether they shall consent to
such non-monetary relief within ten (10) days from lst Independence’s written
request for approval of Indemnitors, Indemnitors shall be deemed to have
consented to such non-monetary relief.
4. Limitation of
Liability. Notwithstanding anything herein to the contrary,
Xxxxx’x obligation to indemnify 1st Independence, or to contribute to any
indemnification provided by Lessor, shall be limited to a maximum of
$150,000.
5. General.
5.1. The
indemnities and covenants contained herein shall survive the expiration or
termination of the Lease, or any litigation or other action related
thereto.
5.2. The
rights and remedies of each of lst Independence and Indemnitors hereunder shall
be in addition to and not in lieu of all other rights and remedies available to
such party at law or in equity.
5.3. This
Agreement shall be governed by the laws of the State of Indiana.
5.4. To
the extent there is any conflict between the provisions of this Agreement and
the Lease, the terms of this Agreement shall control.
5.5. This
Agreement shall be binding upon the parties and their successors and
assigns.
IN
WITNESS WHEREOF, the parties hereof have executed this Agreement on August 28,
2008, to be effective as of the Effective Date.
LESSOR:
Bank
Rentals, LLC
By: /s/
Xxxxxxx X. Xxxxx,
XX
Xxxxxxx X. Xxxxx, XX,
President
/s/
Xxxxxxx X. Xxxxx,
XX
Xxxxxxx
X. Xxxxx, XX
1ST
INDEPENDENCE BANK, INC.
By: /s/ N.
Xxxxxxx
Xxxxx
N. Xxxxxxx Xxxxx,
President/CEO
