Form 8-12

Insurance and Indemnity Agreement

Basic Information

Date:

Borrower:

Borrower’s Mailing Address:

Lender:

Lender’s Mailing Address:

Obligation

Note

Date:

Original principal amount:

Borrower:

Lender:

Maturity date:

Other Debt: [describe other debt]

Property (including any improvements):

A.Borrower’s Covenants

Borrower agrees to—

A.1.comply with the requirements set forth in the attached Insurance Addendum;

A.2.Indemnify, defend, and hold Lender and its shareholders, members, partners, agents, contractors, officers, and employees harmless from (a) any harm to or impairment or loss of property or its use, (b) harm to or death of a person, or (c) “personal and advertising injury” as defined in the form of liabil­ity insurance Borrower is required to maintain (and any resulting or related claim, action, loss, liability, or reasonable expense, including attorney’s fees and other fees and court and other costs), occurring in any portion of the Prop­erty during the period the Obligation is outstanding. The indemnity contained in this paragraph is (a) independent of Borrower’s insurance, (b) will not be limited by comparative negligence statutes or damages paid under workers’ compensation or similar employee benefit acts, (c) will survive repayment of the Obligation or foreclosure of the Property by Lender or execution by Borrower of a deed in lieu of foreclosure with respect to the Property, and (d) will apply even if the harm, impairment, loss, or injury is caused in whole or in part by the ordinary negligence or strict liability of the intended ben­eficiary of the indemnity, but will not apply to the extent the harm, impair­ment, loss, or injury is caused by the sole or gross negligence or willful misconduct of the intended beneficiary of the indemnity.

B.General Provisions

B.1.When the context requires, singular nouns and pronouns include the plural.

B.2.The term Note includes all extensions, modifications, and renewals of the Note.

B.3.This agreement binds, benefits, and may be enforced by the successors in inter­est of all parties.

B.4.Borrower agrees to pay reasonable attorney’s fees, trustee’s fees, and court and other costs of enforcing Lender’s rights under this agreement if this agreement is placed in the hands of an attorney for enforcement.

B.5.If any provision of this agreement is determined to be invalid or unenforceable, the validity or enforceability of any other provision will not be affected.

   
[Name of borrower]

Addendum to Insurance and Indemnity Agreement

Insurance and Indemnity Agreement

Date:

Borrower:

Lender:

This addendum is part of the Insurance and Indemnity Agreement.

A.Borrower agrees to maintain (or, if applicable, cause Borrower’s third-party manager, lessee, general contractor, or third-party design professional to maintain) the property and/or liability insurance policies below (mark applicable boxes) containing contractual liability cov­erage for broad-form indemnities, plus any other coverages and increased coverages as Lender may reasonably require:

FROM BORROWER AND BORROWER’S THIRD-PARTY MANAGER

B.Borrower agrees to comply with the following additional insurance requirements:

B.1.The commercial general liability (or business owner’s policy or commercial package coverage policy) must be endorsed to name Lender as an “additional insured” and must not be endorsed to exclude the partial, contributory, or comparative negligence of Lender from the definition of “insured contract.”

B.2.Additional insured endorsements must not exclude coverage for the sole or con­tributory ordinary negligence of Lender.

B.3.Property insurance policies must contain waivers of subrogation of claims against Lender.

B.4.Evidence of insurance and copies of any additional insured endorsements with respect to Borrower’s insurance must be delivered by Borrower to Lender in a form accept­able to Lender at least ten days before the expiration of the policies; the original of each pol­icy, coincident with the execution of the documents representing the Obligation; and the original of each renewal policy, not less than ten days before the expiration of the initial pol­icy or each immediately preceding renewal policy. In case of Borrower’s failure to keep the Property insured or to provide evidence that the Property is insured, as required herein, Lender, after notice to Grantor, at its option may acquire the Required Insurance Coverages at Grantor’s sole expense.

B.5.COLLATERAL PROTECTION INSURANCE NOTICE

In accordance with the provisions of section 307.052(a) of the Texas Finance Code, the Beneficiary hereby notifies the Grantor as follows:

(A)the Grantor is required to:

(i)keep the collateral insured against damage in the amount the Lender specifies;

(ii)purchase the insurance from an insurer that is authorized to do business in the state of Texas or an eligible surplus lines insurer; and

(iii)name the Lender as the person to be paid under the policy in the event of a loss;

(B)the Grantor must, if required by the Lender, deliver to the Lender a copy of the policy and proof of the payment of premiums; and

(C)if the Grantor fails to meet any requirement listed in Paragraph (A) or (B), the Lender may obtain collateral protection insurance on behalf of the Grantor at the Grantor’s expense.

B.6.Certificates of insurance and copies of any additional insured endorsements with respect to a third-party manager’s, contractor’s, subcontractor’s, or design professional’s insurance must be delivered by Borrower to Lender before such party enters the Property and thereafter at least ten days before the expiration of the policies.

C.Borrower agrees to obtain the approval of Lender with respect to the following: the forms of Borrower’s (or third-party manager’s, general contractor’s, or design professional’s) insurance policies, endorsements, and certificates and other evidence of insurance; the amounts of any deductibles or self-insured retentions amounts under Borrower’s (or third-party manager’s, general contractor’s, or design professional’s) insurance; and the cred­itworthiness and ratings of the insurance companies issuing Borrower’s (or third-party man­ager’s, general contractor’s, or design professional’s) insurance.