STEWART TITLE GUARANTY COMPANY
AFFIDAVIT AND INDEMNITY AGREEMENT REGARDING EXTENDED COVERAGE MATTERS
(Construction Ongoing or Contemplated)
This Affidavit and Indemnity Agreement is entered into by and between the Indemnitor(s) whose name(s) is/are set forth on the signature page hereof, _________________________________ __________________ (“Agent”), and Agent's underwriter, Stewart Title Guaranty Company, a Texas corporation (Agent and Stewart are jointly and severally referred to herein as “Title Company”), with reference to the following facts:
A. Indemnitor(s) are the owner(s) of the land (the “Land”) described in that certain Commitment for Title Insurance issued by the Title Company and referenced above(the “Commitment”), for an ALTA Owner's and/or Loan Policy of title insurance (the “Policy” or “Policies”),
B. Proposed Insured(s) under said Commitment is/are requesting the Company to issue its Policy or Policies with Extended Coverage, and to delete therefrom the General Exceptions relating to rights or claims of parties in possession, survey matters, unrecorded easements and statutory lien rights for labor or materials, or other matters determinable only by survey, inspection or inquiry,
C. Indemnitor acknowledges that the Title Company would refrain from issuing said Policy or Policies without showing said General Exceptions in the absence of the representations, agreements and undertakings contained in this Agreement.
D. Indemnitor agrees to indemnify Title Company from and against any and all claims, demands, damages, and losses which Title Company may incur as a result of any misstatements of fact made by Indemnitor contained in this Agreement or otherwise made to Title Company by Indemnitor in relation to the transaction for which the Commitment was issued
AFFIDAVIT AND AGREEMENT
1. The Indemnitor certifies that the Land has been owned and occupied by the Indemnitor for _______ years and the Indemnitor's enjoyment thereof has been peaceable and undisturbed. There are no other persons (including trusts, corporations, partnerships or limited liability companies) which assert an interest in the property, except (if none, state “None”): _______________________________________________________________________
2. The Indemnitor certifies that the Land at present is in use as: ________________________.
3. The Indemnitor certifies that there are no oral or written leases, tenancies or other occupancies, nor any rights of first refusal or options to purchase said land, except (attach list, if necessary, and attach copies of any written agreements or rent rolls, if any; if none, state “None”): ___________________________________________________________
4. The Indemnitor certifies that neither the Indemnitor nor any principal of the Indemnitor has filed a petition for bankruptcy, which action is pending, nor is Indemnitor a party to any pending action, nor has Indemnitor been served with a summons and complaint nor received any notice of any action which is pending against Indemnitor, except (if none, state”None”): ____________________________________________________________________.
5. Indemnitor certifies that there are no unpaid or unsatisfied (1) mortgages, deeds of trust, contracts, security agreements, claims of lien, or judgments, (2) special assessments for sewer, water, road or other local improvement districts, or taxes, including taxes or special assessments which are not yet payable or which are not shown as existing liens by the public records, or (3) service, installation, connection, tap, capacity or construction charges for sewer, water, electricity, natural gas or other utilities, or garbage collection and disposal, which are not shown in the referenced commitment, except (if none, state “None”): ____________________________________________________________________.
6. Indemnitor certifies that there are no unpaid amounts of public funds advanced under the provisions of one or more various federal acts relating to heath care (including, but not limited to, the Hill-Burton Act (Title 42 USCA, §291, et seq.) or under any state statutes enacted pursuant thereto, which would constitute a lien against the Land.
7. Certain works of improvement (“Improvements”) have been or will be commenced upon the Land. In connection therewith, Indemnitor agrees as follows:
7.1 Indemnitor will hold harmless, protect and indemnify Title Company from and against any and all liabilities, losses, damages, expenses and charges including attorney's fees and expenses of litigation, which Title Company may sustain under any policy of insurance respecting the Land resulting directly or indirectly from any mechanic's lien, or claim thereof, or which Title Company may sustain in the enforcement of this Agreement.
7.2 Indemnitor will pay, or cause to be paid, all bills, charges or expenses arising from or in connection with Improvements on the Land.
7.3 If a claim of lien is filed affecting the Land for which a title policy has been issued in reliance on this Agreement, a priority lien established, or an action to foreclose a priority lien commenced, Indemnitor will within 20 days after the first occurring event above‑mentioned, cause such lien to be released of record and/or such action to be dismissed with prejudice.
7.4 If Indemnitor fails in its obligations under subparagraph 7.3 above, Title Company may, but is not obligated to, do anything reasonable, convenient or necessary to remove said lien of record, obtain a satisfaction of judgment, prevent foreclosure, or otherwise protect its insured and itself. Indemnitor hereby names, constitutes and appoints Company its attorney in fact to do all things necessary and convenient to carry out the provisions of this subparagraph. Indemnitor will reimburse Company for all amounts expended hereunder, including but not limited to attorneys fees, which amounts will be due and payable without demand, when expended, and shall bear interest at the rate of 10% per annum from the time expended.
7.5 Title Company is hereby granted the right, at any time or from time to time, to examine the books, accounts and records of Indemnitor, pertaining to any Improvements upon the Land, and Indemnitor will, upon request, promptly furnish Title Company with copies of all receipted bill or other evidence of payment or set off for any Improvements upon the Land and such other and further assurances and/or security as may be reasonably requested by Company for its protection from liability
7.6 Title Company is hereby granted the right to rely upon this Agreement whether or not Indemnitor is the person ordering the Commitment or Policy, regardless of any change in ownership, title or interest in the Land or the Improvements thereon, or of any change in Indemnitor's interest therein. Said right shall extend to subsequent policies issued with respect to said Land.
8. Nothing contained herein shall be construed so as to obligate the Title Company to issue said Policy or Policies without showing said General Exceptions. However, should the Company do so, it will do so in part in reliance upon the undertakings of the undersigned Indemnitor. The issuance of the Policy or Policies shall be the consideration for the undertakings contained herein.
9. Title Company reserves the right to require additional indemnification and/or a survey in connection with analyzing its risk in deleting said General Exceptions, and to take special exception for any adverse matters disclosed by this Agreement, a survey or an inspection of the Land.
10. General Provisions
10.1 As used herein the term “Land” includes any part, parcel, or subdivision of the described real property and any part, parcel or subdivision of the legal or equitable interest in said real property.
10.2 As used herein, the terms “Improvement.” “work of improvement,” “mechanic's lien,” “priority lien” and “claim of lien” shall be deemed to refer to the applicable statutes of the state in which the land is situated that enable mechanics, materialmen, artisans, and laborers to have a lien and/or enforce such against the land and any improvements constructed thereon for the value of the labor bestowed thereon and/or the materials furnished thereto.
10.3 The term “policy of title insurance” includes such policies as are customarily issued by title insurance companies insuring priority of liens, and marketability of title, and all endorsements thereon. The term also includes other documents and reports customarily issued by title companies concerning the state of title, ownership, or interest in real property.
10.4 Indemnitor may request the extension of this Agreement to include within the term “Land” other real property by executing and delivering to Company additional Exhibit A's for attachment hereto and incorporating herein.
10.5 Whenever the context so requires, the singular includes the plural and the masculine includes the feminine or neuter.
10.6 If more than one Indemnitor signs this Agreement, the obligation hereunder shall be joint and several.
10.7 IN THE EVENT THE INDEMNITOR'S OBLIGATIONS UNDER THIS AGREEMENT ARE SECURED, A “DEPOSIT ACCOUNT RIDER” SHALL BE ATTACHED HERETO AND MADE A PART OF THIS AGREEMENT.
INDEMNITOR EXECUTES THIS AGREEMENT BECAUSE OF THE BENEFITS DIRECTLY AND INDIRECTLY ACCRUING TO HIM BY REASON OF THE ISSUANCE OF SAID POLICIES.
FOR EXECUTION BY CORPORATIONS
_____________________________________________________, a ____________________ corporation
[Name of Corporation]
[Title of Authorized Officer]
FOR EXECUTION BY INDIVIDUALS
By: ______________________________ By: _________________________
Name: ______________________________ Name: __________________________
Address: ______________________________ Address: __________________________
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