Document

Exhibit 10.9
INDEMNITY AGREEMENT


THIS INDEMNITY AGREEMENT (“Agreement”), is made and entered into as of this 13th day of November, 2020, by the undersigned, nuverra environmental solutions, INC., a Delaware corporation (hereinafter referred to as the “Borrower”), and BADLANDS POWER FUELS, LLC, a Delaware limited liability company, BADLANDS POWER FUELS, LLC, a North Dakota limited liability company, LANDTECH ENTERPRISES, L.L.C., a North Dakota limited liability company, IDEAL OILFIELD DISPOSAL, LLC, a North Dakota limited liability company, HECKMANN WATER RESOURCES CORPORATION, a Texas corporation, HECKMANN WATER RESOURCES (CVR), INC., a Texas corporation, 1960 WELL SERVICES, LLC, an Ohio limited liability company,  NUVERRA OHIO DISPOSAL LLC, a Delaware limited liability company, CLEARWATER THREE, LLC, an Ohio limited liability company, CLEARWATER FIVE, LLC, an Ohio limited liability company, CLEARWATER SOLUTIONS, LLC, an Ohio limited liability company, and NUVERRA TOTAL SOLUTIONS, LLC, a Delaware limited liability company, (hereinafter collectively referred to as the “Guarantors”, and Borrower and Guarantors hereinafter collectively referred to as the “Indemnitors”), jointly and severally, in consideration of FIRST INTERNATIONAL BANK & TRUST, a North Dakota banking corporation (referred to as the “Indemnitee”), agreeing to make a loan (hereinafter referred to as the “Loan”) in the amount of Ten Million and 00/100 Dollars ($10,000,000.00), to Borrower, 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), mold 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 U.S.C. §§ 1251 et seq. (1972), the Clean Air Act, 42 U.S.C. §§ 7401 et seq. (1970), the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, 42 U.S.C. § 9601 et seq., and the Resource Conservation and Recovery Act, 42 U.S.C. § 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 reasonable and 










documented attorneys’ fees, suffered or incurred by the Indemnitee as a result of the existence of Hazardous Materials or Wastes in violation of Law upon that certain real estate and the improvements located thereon described in Exhibit “A” attached hereto and made a part hereof (hereinafter referred to as the “Premises”), including any loss of value of the Premises suffered by Indemnitee as a result of the foregoing, whether as holder of the Loan, as mortgagee in possession or as successor-in-interest fee owner to Borrower by foreclosure proceedings or deed in lieu of foreclosure.  Indemnitors shall have no liability to indemnify Indemnitee for loss, liability, damage or expense arising from or out of (a) the activities of Indemnitee or its agents on the Premises on or after transfer of title of the Premises to Indemnitee or Indemnitee’s designee pursuant to foreclosure proceedings or deed in lieu, or (b) any matters disclosed in the Phase I Environmental Site Assessment for Watford City, ND dated October 5, 2020, for Carthage, TX dated September 9, 2020, for Dickinson, ND dated September 26, 2020, for Frierson, LA dated September 2, 2020, for Lore City, OH dated September 2, 2020, for Reedsville, WV dated September 2, 2020, for Sidney, MT dated September 22, 2020, for Stanley, ND dated September 24, 2020, and for Tioga, ND dated September 28, 2020.
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 in violation of Law, or (b) relating to the failure to comply with any local, state, or federal statutes and/or regulations regarding Hazardous Materials or Wastes 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 “Loan 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 Loan Documents.  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 Loan Documents, (ii) any sale, assignment or foreclosure of any Loan Documents or any sale or transfer of all or any part of the Premises, (iii) any exculpatory provision in any of the Loan Documents limiting Indemnitee’s recourse to property encumbered by the Loan 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 Loan 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 Loan Documents by operation of law, Indemnitee’s voluntary act, or otherwise, (v) the release or substitution in whole 
- 2 -








or in part of any security for the Loan, (vi) Indemnitee’s failure to record or file any Loan 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 to Indemnitors and with or without consideration, (vii) any limitation of liability language in any Loan 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.
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 North Dakota.
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:


- 3 -








						
	Indemnitors:	Nuverra Environmental Solutions
Attn:  Joseph Crabb
6720 N. Scottsdale Road, Suite 190
Scottsdale, AZ  85253



	With a copy to:	Squire Patton Boggs (US) LLP
127 Public Square, Suite 4900
Cleveland, OH 44114
Attn: Patrick J. Burke, Esq.



	Indemnitee:	First International Bank & Trust
Attn: Drew Flanagan
100 N. Main St. 
P.O. Box 607 
Watford City, ND 58854



	With a copy to:	Ballard Spahr LLP
80 South Eighth Street, Suite 2000
Minneapolis, Minnesota  55402
Attn: James R. Walston, Esq.





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 Loan Documents.  The indemnities given in this Agreement are given in consideration of Indemnitee making the Loan to Borrower, however, they 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.
10.This Agreement may be executed in one or more counterparts by some or all of the parties hereto, each of which counterparts shall be an original and all of which together shall constitute a single agreement.  The failure of any party hereto to execute this Agreement, or any counterpart hereof, shall not relieve the other signatories from their obligations hereunder.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
- 4 -








IN WITNESS WHEREOF, Indemnitors have executed this Agreement as of the day and year first above written.
                        INDEMNITORS:


NUVERRA ENVIRONMENTAL SOLUTIONS, INC.,
a Delaware corporation




By:     /s/ Charles K. Thompson        
Printed Name:  Charles K. Thompson    
Its:     CEO                    












STATE OF     Texas            )
) ss.
COUNTY OF     Harris            )


    The foregoing instrument was acknowledged before me this     2nd     day of November, 2020, by     Charles Thompson     the     CEO             of NUVERRA ENVIRONMENTAL SOLUTIONS, INC., a Delaware corporation, on behalf of the corporation.






/s/ David Berry Dale, III            
Notary Public




- 5 -










INDEMNITORS (continued):




BADLANDS POWER FUELS, LLC,
a Delaware limited liability company


By:     /s/ Charles K. Thompson        
Printed Name:  Charles K. Thompson    
Its:     CEO                    






STATE OF     Texas            )
) ss.
COUNTY OF     Harris            )


    The foregoing instrument was acknowledged before me this     2nd     day of November, 2020, by     Charles Thompson     the     CEO             of BADLANDS POWER FULES, LLC, a Delaware limited liability company, on behalf of the limited liability company.






/s/ David Berry Dale, III            
Notary Public


- 6 -












INDEMNITORS (continued):




BADLANDS POWER FUELS, LLC,
a North Dakota limited liability company


By:     /s/ Charles K. Thompson        
Printed Name:  Charles K. Thompson    
Its:     CEO                    




STATE OF     Texas            )
) ss.
COUNTY OF     Harris            )


    The foregoing instrument was acknowledged before me this     2nd     day of November, 2020, by     Charles Thompson     the     CEO             of BADLANDS POWER FULES, LLC, a North Dakota limited liability company, on behalf of the limited liability company.




/s/ David Berry Dale, III            
Notary Public


- 7 -








INDEMNITORS (continued):


LANDTECH ENTERPRISES, L.L.C., 
a North Dakota limited liability company


By:     /s/ Charles K. Thompson        
Printed Name:  Charles K. Thompson    
Its:     CEO                    






STATE OF     Texas            )
) ss.
COUNTY OF     Harris            )


    The foregoing instrument was acknowledged before me this     2nd     day of November, 2020, by     Charles Thompson     the     CEO             of LANDTECH ENTERPRISES, L.L.C., a North Dakota limited liability company, on behalf of the limited liability company.






/s/ David Berry Dale, III            
Notary Public






- 8 -








INDEMNITORS (continued):


IDEAL OILFIELD DISPOSAL, LLC, a North Dakota limited liability company




By:     /s/ Charles K. Thompson        
Printed Name:  Charles K. Thompson    
Its:     CEO                    






STATE OF     Texas            )
) ss.
COUNTY OF     Harris            )


    The foregoing instrument was acknowledged before me this     2nd     day of November, 2020, by     Charles Thompson     the     CEO             of IDEAL OILFIELD DISPOSAL, LLC, a North Dakota limited liability company, on behalf of the limited liability company.






/s/ David Berry Dale, III            
Notary Public






- 9 -








INDEMNITORS (continued):


HECKMANN WATER RESOURCES CORPORATION, a Texas corporation


By:     /s/ Charles K. Thompson        
Printed Name:  Charles K. Thompson    
Its:     CEO                    






STATE OF     Texas            )
) ss.
COUNTY OF     Harris            )


    The foregoing instrument was acknowledged before me this     2nd     day of November, 2020, by     Charles Thompson     the     CEO             of HECKMANN WATER RESOURCES CORPORATION, a Texas corporation, on behalf of the corporation.






/s/ David Berry Dale, III            
Notary Public








- 10 -








INDEMNITORS (continued):


HECKMANN WATER RESOURCES (CVR), INC., a Texas corporation


By:     /s/ Charles K. Thompson        
Printed Name:  Charles K. Thompson    
Its:     CEO                    






STATE OF     Texas            )
) ss.
COUNTY OF     Harris            )


    The foregoing instrument was acknowledged before me this     2nd     day of November, 2020, by     Charles Thompson     the     CEO             of HECKMANN WATER RESOURCES (CVR) INC., a Texas corporation, on behalf of the corporation.






/s/ David Berry Dale, III            
Notary Public








- 11 -








INDEMNITORS (continued):


1960 WELL SERVICES, LLC, an Ohio limited liability company


By:     /s/ Charles K. Thompson        
Printed Name:  Charles K. Thompson    
Its:     CEO                    






STATE OF     Texas            )
) ss.
COUNTY OF     Harris            )


    The foregoing instrument was acknowledged before me this     2nd     day of November, 2020, by     Charles Thompson     the     CEO             of 1960 WELL SERVICES, LLC, an Ohio limited liability company, on behalf of the limited liability company.






/s/ David Berry Dale, III            
Notary Public








- 12 -








INDEMNITORS (continued):


NUVERRA OHIO DISPOSAL LLC, a Delaware limited liability company


By:     /s/ Charles K. Thompson        
Printed Name:  Charles K. Thompson    
Its:     CEO                    






STATE OF     Texas            )
) ss.
COUNTY OF     Harris            )


    The foregoing instrument was acknowledged before me this     2nd     day of November, 2020, by     Charles Thompson     the     CEO             of NUVERRA OHIO DISPOSAL LLC, a Delaware limited liability company, on behalf of the limited liability company.






/s/ David Berry Dale, III            
Notary Public








- 13 -








INDEMNITORS (continued):


CLEARWATER THREE, LLC, an Ohio limited liability company


By:     /s/ Charles K. Thompson        
Printed Name:  Charles K. Thompson    
Its:     CEO                    






STATE OF     Texas            )
) ss.
COUNTY OF     Harris            )


    The foregoing instrument was acknowledged before me this     2nd     day of November, 2020, by     Charles Thompson     the     CEO             of CLEARWATER THREE, LLC, an Ohio limited liability company, on behalf of the limited liability company.






/s/ David Berry Dale, III            
Notary Public








- 14 -








INDEMNITORS (continued):


CLEARWATER FIVE, LLC, an Ohio limited liability company


By:     /s/ Charles K. Thompson        
Printed Name:  Charles K. Thompson    
Its:     CEO                    






STATE OF     Texas            )
) ss.
COUNTY OF     Harris            )


    The foregoing instrument was acknowledged before me this     2nd     day of November, 2020, by     Charles Thompson     the     CEO             of CLEARWATER FIVE, LLC, an Ohio limited liability company, on behalf of the limited liability company.






/s/ David Berry Dale, III            
Notary Public






- 15 -








INDEMNITORS (continued):


CLEARWATER SOLUTIONS, LLC, an Ohio limited liability company


By:     /s/ Charles K. Thompson        
Printed Name:  Charles K. Thompson    
Its:     CEO                    






STATE OF     Texas            )
) ss.
COUNTY OF     Harris            )


    The foregoing instrument was acknowledged before me this     2nd     day of November, 2020, by     Charles Thompson     the     CEO             of CLEARWATER SOLUTIONS, LLC, an Ohio limited liability company, on behalf of the limited liability company.






/s/ David Berry Dale, III            
Notary Public








- 16 -








INDEMNITORS (continued):


NUVERRA TOTAL SOLUTIONS, LLC, a Delaware limited liability company


By:     /s/ Charles K. Thompson        
Printed Name:  Charles K. Thompson    
Its:     CEO                    






STATE OF     Texas            )
) ss.
COUNTY OF     Harris            )


    The foregoing instrument was acknowledged before me this     2nd     day of November, 2020, by     Charles Thompson     the     CEO             of NUVERRA TOTAL SOLUTIONS, LLC, a Delaware limited liability company, on behalf of the limited liability company.






/s/ David Berry Dale, III            
Notary Public








- 17 -








EXHIBIT “A”
LEGAL DESCRIPTION




Parcel 1:





PARCEL 2:





- 18 -








PARCEL 3:





PARCEL 4: 





PARCEL 5:





PARCEL 6:





PARCEL 7: 





- 19 -








PARCEL 8:





PARCEL 9: 



PARCEL 10:









- 20 -








PARCEL 11:









- 21 -








PARCEL 12:









- 22 -








PARCEL 13: 









- 23 -








PARCEL 14: 







- 24 -















- 25 -








PARCEL 15:









- 26 -








PARCEL 16:









- 27 -








PARCEL 17:









- 28 -








PARCEL 18:





- 29 -