STG Indemnity Agreement: Construction
File, Commitment, GF, or Policy Number: __________________
(referred to herein as the "File")
This indemnification (hereafter "Indemnification" or "Agreement" or "Indemnity Agreement") is made and given by the undersigned, __________________, individually, and on behalf of: _________________________________________________________ referred to herein as "Indemnitor" (whether one or more) for the benefit of Stewart Title Guaranty Company and _____________________________________________________________ (individually and collectively referred to hereafter as "Title Company").
1. A. Indemnitor has requested the issuance by Title Company from time to time before, on, or after the effective date of this Agreement, of a policy or policies of title insurance, endorsements, commitments, binders, preliminary reports, guarantees and indemnities ("Title Insurance Policy" or "Title Insurance Policies") covering all or part of the land described in the File (referred to hereafter as "Land") as to transactions, past, present and future, and insuring against loss which may be sustained by reason of mechanic's liens, claims of liens, or actions to enforce said liens, without showing (or insuring against) said claims, liens and/or actions as exceptions to title, or insuring against loss by reason of any claim of priority of any such mechanic's liens over insured mortgages, deeds of trust or other insured interests, and/or insuring against liens arising from unpaid bills for labor, services, equipment and/or materials furnished to all or part of the Land, by endorsement or otherwise, including but not limited to legal fees and expenses (such insurance "Mechanic's Lien Coverage"). Indemnitor understands and agrees that the Title Company may make disclosure of said claims, liens and actions to all proposed insureds.
1. B. Indemnitor hereby represents and warrants as follows: [ INDEMNITOR: INITIAL APPLICABLE SECTION BELOW, AND COMPLETE EXHIBIT A, IF APPLICABLE. FAILURE TO INITIAL A SECTION BELOW SHALL BE DEEMED TO BE AN ELECTION OF SECTION (i).]
____ (i): (a) no services, labor, materials or equipment have been furnished to the Land during the prior 180 days; and (b) no services, labor, materials or equipment will be furnished to the Land prior to the recordation of the mortgage(s) to be insured by the Title Company; and (c) no services, labor, materials or equipment, on-site or off-site (for example, surveying, architectural, engineering, etc.) have been furnished that would be deemed the commencement of work for the purposes of applicable lien laws. [ INDEMNITOR: IF YOU INITIALED THIS SECTION, YOU DO NOT NEED TO COMPLETE EXHIBIT A.]
____ (ii): (a) Exhibit A attached hereto states all services, labor, materials and equipment that have been furnished to the Land during the prior 180 days; and (b) all services, labor, materials and equipment furnished to the Land to date have been paid in full, and all services, labor, materials and equipment furnished hereafter will be paid in full at the time of the execution and recordation of the mortgage(s) to be insured by the Title Company; and (c) simultaneously with the execution of this Agreement, Indemnitor has provided to the Title Company proofs of payment (lien waivers, paid bills, receipts, etc.) for all services, labor, materials and equipment furnished to the Land to date, and Indemnitor will continue to provide to the Title Company proofs of payment for all services, labor, materials and equipment furnished hereafter. [ INDEMNITOR: IF YOU INITIALED THIS SECTION, YOU MUST COMPLETE EXHIBIT A.]
2. To induce the Title Company to issue any Title Insurance Policy providing Mechanic's Lien Coverage, Indemnitor shall hold harmless, protect, defend and indemnify the Title Company from and against any and all claims, costs, liabilities, losses, damages, expenses and charges (whether or not the Title Company has suffered actual loss), including, but not limited to, attorney's fees and expenses of litigation, and attorney's fees and expenses to enforce this Agreement, for which the Title Company may in its sole discretion become liable or sustain, arising out of or any way connected with any Title Insurance Policy providing Mechanic's Lien Coverage. Any determination of coverage by the Title Company shall be conclusive evidence that the matter is within the Title Policy coverage as to the Mechanic’s Liens for the purposes of this Agreement.
3. Indemnitor understands and agrees that the Title Company's issuance of any Title Insurance Policy providing Mechanic's Lien Coverage may make it necessary or appropriate for the Title Company, in its sole discretion and without notice to Indemnitor, to issue additional or other Title Insurance Policies providing Mechanic's Lien covering all or part of the Land from time to time. Therefore, it is understood and agreed that the obligations of the Indemnitor hereunder shall not be limited to the Title Insurance Policy providing Mechanic's Lien Coverage initially issued on the Land, but shall also apply to any Title Insurance Policies subsequently issued on the Land, or portions thereof. It is specifically understood by the Indemnitor that the Title Company will be relying upon this Agreement as a continuing guarantee of the performance of Indemnitor's obligations with respect to the Land in issuing any such further Title Insurance Policies providing Mechanic's Lien Coverage. Indemnitor understands and agrees that the Indemnitor's obligations to the Title Company shall be enforceable in connection with the current or any future policies, whether or not the Title Company identifies the existence of a lien or claim prior to issuance of any Title Insurance Policy providing Mechanic's Lien Coverage.
4. A. In the event that any mechanic's lien, or notice of lien or claim thereof (a "Lien") shall be filed against the Land, or any action shall be commenced to foreclose such a Lien, Indemnitor shall, within twenty (20) days of the earlier of such filing or commencement, as applicable, in form and manner satisfactory to the Title Company:
(i) Cause a release of the Lien to be filed in the appropriate official records office; or
(ii) Cause to be recorded with respect to any such Lien a bond or bonds conforming to applicable state statutes and sufficient to release the Lien from the Land; or
(iii) Deposit with the Title Company an amount equal to one and one-half (1-1/2) times the amount claimed, plus attorney's fees, interest and costs; or
(iv) Take such action as shall be required by the Title Company, in its sole discretion.
B. Should Indemnitor fail to comply with subparagraphs (i), (ii), (iii) or (iv) as set forth above, the Title Company is authorized by Indemnitor, but is not obligated, to advance and pay such amounts as the Title Company shall, in its sole discretion, determine to be appropriate to procure release of such Lien. Without notice or demand, the Title Company may take any action it deems appropriate for its protection or the protection of any of its insureds. Indemnitor agrees upon demand to reimburse the Title Company for all amounts advanced or expended, together with the maximum rate of interest allowable by law.
C. To the extent that the Title Company shall expend any sum of money on account of this Agreement, the Title Company shall also have the right of subrogation against the Indemnitor including but not limited to Indemnitor's rights in the Land. As an additional remedy, the Title Company shall have the right to a lien on the interest, if any, of Indemnitor in the Land for any sum of money paid or expended by the Title Company on account of this Agreement. This lien shall be subordinate in priority only to those liens of record in the county or parish where the Land is located at the time the Title Company records its statement of lien. The Title Company shall have the right to bid on the Land at a foreclosure sale and to acquire, hold, lease, mortgage and convey the same. A suit to recover a money judgment on any sums of money paid or expended by the Title Company on account of this Agreement shall be maintainable without foreclosing or waiving the lien securing the same.
D. To the extent permitted by law, Indemnitor hereby subordinates any lien, claim, right or privilege that Indemnitor or those claiming by, through, or under Indemnitor, may have in the Land now or in the future for labor, equipment, material or services furnished or to be furnished for the benefit of the Land, to any mortgage, deed of trust, or other encumbrance of any insured under any title insurance policy issued by the Title Company, now or in the future.
E. To secure Indemnitor's obligations with respect to this Agreement, Indemnitor hereby deposits with the Title Company the sum of _______________. All funds deposited with the Title Company shall be deposited in a separate and segregated interest-bearing account maintained by the Title Company in ___________________. Interest earned shall be added to the fund and disbursed in accordance with the provisions of this Agreement. The aforesaid deposit and all additions thereto and all interest earned thereon are referred to hereinafter as the "Fund." The Title Company is hereby given a lien and security interest in the Fund to secure Indemnitor's performance of its obligations under this Agreement.
F. Should Indemnitor fail or refuse to pay the Title Company any sums due to the Title Company hereunder after receiving demand the Title Company shall be entitled to reimburse itself from the Fund in an amount equal to any such sums, plus attorney's fees and expenses incurred in connection therewith to enforce this Agreement.
5. It is specifically understood and agreed by Indemnitor that once such title insurance obligations have been undertaken by the Title Company, no cancellation by Indemnitor can be effective.
6. Indemnitor understands that, as a continuing guarantee, as well as a direct indemnification, Indemnitor authorizes the Title Company without notice or demand, and without affecting the Indemnitor's liability hereunder, from time to time: (a) to renew, compromise, extend, accelerate or otherwise change the time or terms of payment of any obligation which shall be so guaranteed hereunder; (b) to take security for the payment of this Agreement and to exchange, enforce, waive and release any such security; (c) to apply such security and direct the order or manner of sale thereof as the Title Company may in its discretion determine; and (d) release or substitute any one or more of the Indemnitors (if more than one). In addition, Indemnitor waives any right to require the Title Company (a) to proceed against any person; (b) to proceed against or exhaust any security held by the Title Company or (c) to pursue any other remedy whatsoever. Indemnitor also waives all presentments, demands for performance, notices of non-performance, and notice of acceptance of this guarantee and indemnity. Indemnitor also waives any and all claims, counterclaims or defenses against the Title Company for recovery by the Title Company under this Agreement based upon any action or inaction of the Title Company or anyone else under this Agreement, the Title Policies or any other agreement between Indemnitor and the Title Company.
7. Indemnitor hereby agrees that the Title Company shall have and is granted the right, at any reasonable time, to examine the books, accounts, and records of Indemnitor, pertaining to such works or improvements.
8. In the event any provision of this Agreement shall be held invalid or unenforceable by any court having jurisdiction, such provision shall be deemed severable and shall not affect the validity of any other provisions or the balance hereof.
9. The failure of the Title Company from time to time to demand the performance of any act which it might require of Indemnitor hereunder or any other indemnitor shall not be construed as a waiver of the right to enforce such performance at a later time upon appropriate demand.
10. In the event of suit regarding any of the terms of this Agreement or performance or non-performance thereof, the parties agree that venue shall be in the appropriate courts in the county, parish, or state where the Land is located. The laws of the State of the site of the Land shall govern any suit. By signature hereto Indemnitor appoints the Clerk of said Court as the Indemnitor's agent to receive service of process and, further consents to jurisdiction of said Court over the Indemnitor.
11. Indemnitor understands and agrees that the Title Company is not obligated to issue any title insurance at any time, although requested to do so by Indemnitor, and may exercise its own discretion as to the issuance of any title insurance now or in the future. However, once the Title Company has issued title insurance, Indemnitor agrees that the issuance of title insurance will be in specific reliance upon this indemnification and guarantee given by the Indemnitor, and Indemnitor shall be obligated whether or not Indemnitor has specifically requested the issuance of title insurance.
12. All written notices permitted or required to be given under this Agreement may be delivered (by UPS, Federal Express or other similar means) to each of the parties thereto, or mailed to each party by Registered United States Mail or Certified United States Mail, and shall be considered duly made when addressed as follows:
To Title Company:
Stewart Title Guaranty Company
P.O. Box 2029
Houston, Texas 77252
Attention: Stewart Legal Services
with copy to
Stewart Title Guaranty Company
1360 Post Oak Blvd., Ste 100, MC # 14-1
Houston, TX 77056
Attention: Stewart Legal Services
Either party may, by written notice to the other, as aforesaid, change the address to which notices are to be sent.
13. A. The parties acknowledge that the Title Company may be asked to provide title insurance pursuant to this Agreement wherein legal title to the Land and improvements may be vested in a corporation, partnership, joint venture or other form of ownership other than individuals. It is the intention of the parties hereof that any person signing this Agreement individually and not in a representative capacity shall be unconditionally and personally bound by the terms hereof with full personal recourse against such individual.
B. Where any one or more of Indemnitors are corporations, partnerships, limited liability companies or joint ventures, the officer signing on behalf of such entity personally represents and warrants that he/she has been duly authorized by such entity to execute this Agreement on behalf of such entity.
C. The obligations hereunder are joint and several and unconditional and shall continue whether or not the undersigned has any interest in the entity which presently owns the Land or in the Land itself at the time a claim hereunder may be made by the Title Company.
14. Indemnitor represents and warrants that the following disclosures provided to the Title Company are complete and accurate:
A. Financial Statements; and
B. Exhibit A attached hereto, if any.
Indemnitor acknowledges that Title Company is relying on the disclosures and shall hold harmless, protect, defend and indemnify the Title Company as to the accuracy thereof.
15. This Agreement shall benefit and bind the parties hereto and their respective successors, assigns and, in the case of individual Indemnitors, their heirs and personal representatives. This Agreement may not be amended or modified without the written Endorsement thereof by Title Company and Indemnitor.
IN WITNESS WHEREOF, the undersigned has / have executed this Indemnity Agreement: Construction effective this _____ day of _________, 20___.
Individual Signature Block:
Indemnitor (in individual capacity):
Print Name: _______________________________
Entity Signature Block:
Name of Entity:
Print Name: ________________________________
Print Title: _________________________________
Individual and Entity Signature Block to be used when Indemnitor is executing in both individual and entity capacity.
All services, labor, materials and equipment that have been furnished to the Land during the prior 180 days include (provide complete information below) * :
Work Performed by:
Date(s) furnished: to
Work Performed by:
Date(s) furnished: to
Work Performed by:
Date(s) furnished: to
*Use additional pages if necessary
For issuing guidelines on this form, see Guidelines.