EXHIBIT 10.1
UNDERWRITING, CONTINUING INDEMNITY, AND SECURITY AGREEMENT
THIS UNDERWRITING, CONTINUING INDEMNITY, AND SECURITY AGREEMENT ("this
Agreement") entered into as of the 14th day of January, 2005, INTEGRATED
ELECTRICAL SERVICES, INC., a Delaware corporation, and certain of its Affiliates
and Subsidiaries identified on Exhibit A, in their capacity as named Principal
under any Bond (individually and collectively "Principal"); and INTEGRATED
ELECTRICAL SERVICES, INC., a Delaware corporation, and certain of its Affiliates
and Subsidiaries identified on Exhibit B (along with Principal, individually and
collectively "Indemnitors") in favor of FEDERAL INSURANCE COMPANY, an Indiana
corporation, its Affiliates and Subsidiaries and their respective co-sureties
and reinsurers, and their respective successors and permitted assigns
(individually and collectively "Surety"). All capitalized terms will have the
meaning set out in Section 1.
W I T N E S S E T H:
WHEREAS, Principal, operating through certain of its Affiliates and
Subsidiaries, is engaged in the business, among other things, of providing
electrical and communication services to the commercial, industrial,
residential, and service markets;
WHEREAS, Indemnitors recognize that bonds may be a necessary and desirable
adjunct to the business done and to be done by Principal that will directly
benefit Indemnitors and desire to accommodate the financial, security,
indemnity, exoneration, and other requirements of Surety as an inducement to
Surety to become surety upon obligations of Principal, and have therefore agreed
to be bound by this Agreement and have agreed to exercise their best efforts to
permit and require any Indemnitor to honor and perform all of the applicable
terms of this Agreement and the other Surety Credit Documents;
WHEREAS, each of Indemnitors has determined that execution, delivery, and
performance of this Agreement by Indemnitors will inure directly to the benefit
of Indemnitors and is in the best interest of Indemnitors;
WHEREAS, upon the express condition that this Agreement be executed,
Surety has executed or procured or will execute or procure the execution of the
Bonds, and Surety may continue previously executed Bonds and may forbear
cancellation of such Bonds in Surety's sole and absolute discretion but only to
the extent provided for in such Bonds or permitted by law; and
WHEREAS, Surety has agreed to act as surety or procure surety bonds for
Principal, subject to the understanding of the parties that Surety is under no
obligation to act as surety for every bond of Principal, and that Principal is
under no obligation to obtain bonds from Surety.
NOW, THEREFORE, in consideration of the mutual agreements set forth
herein, the parties agree and bind ourselves, and our respective successors and
assigns, jointly and severally, as follows:
1. Definitions. For the purposes of this Agreement, the following terms
will have the meanings listed below:
"Accounts" means and includes all of Indemnitors' now owned or hereafter
acquired accounts (as defined in the UCC) and (whether included in such
definition) accounts receivable; and proceeds, including without limitation, all
insurance proceeds, proceeds of any letter of credit on which any Indemnitor is
a beneficiary, in each case solely to the extent such accounts, accounts
receivable, and proceeds arise out of a Bonded Contract, including, but not
limited to, Retainage, and all forms of obligations whatsoever owing to any
Indemnitor under instruments and documents of title constituting the foregoing
or proceeds thereof; and all rights, securities, and guarantees with respect to
each of the foregoing.
"Affiliate" means, with respect to any Person, any other Person or group
acting in concert with respect of such Person that, directly or indirectly,
through one or more intermediaries, controls, or is controlled by, or is under
the common control with such Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlled by" and "under
common control with"), as used with respect to any Person or group of Persons,
means the possession, directly or indirectly, of the power to direct or cause
the direction of management and policies of such Person, whether through the
ownership of voting securities or by contract or otherwise. Each of Indemnitors
is an Affiliate of each other of Indemnitors. None of Indemnitors is an
Affiliate of Surety.
"Agreement" or "this Agreement" means this Underwriting, Continuing
Indemnity, and Security Agreement as it may be amended, modified or supplemented
from time to time.
"Bankruptcy Code" means Title 11 of the United States Code entitled
"Bankruptcy," as now and hereafter in effect, or successor statute.
"Bonded Contract" means any existing or future contract in respect of
which any Bond is issued on behalf of any Principal.
"Bonded Contract Balances" means all payments made, or to be made, to or
on behalf of any Principal pursuant to, arising out of, or relating to any
Bonded Contract, including, without limitation, whether earned and unpaid or to
be earned, Retainage, increases in contract amounts and payments made, or to be
made, as a result of affirmative claims.
"Bonded Job Site" means the site where a Principal is to perform the Work
related to a Bonded Contract.
"Bonds" means any surety agreements, undertakings, or instruments of
guarantee signed by Surety on behalf of any Principal, whether executed before
or after the execution of this Agreement.
"Collateral" means the Bonded Contracts and other collateral described in
Section 6.
"Debt" means, as of any applicable date of determination and as to any
Person, without duplication, all items of indebtedness, obligation, or liability
of such Person, whether matured or
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unmatured, liquidated or unliquidated, direct or indirect, absolute or
contingent, joint or several, that would be classified and presented as a
liability on a balance sheet prepared in accordance with GAAP.
"Default Rate" means on each day of its determination the prime rate
reflected in the Money Rates section of The Wall Street Journal plus two percent
(2%).
"Equipment" means all of Indemnitor's now owned or hereafter acquired
right, title, and interest with respect to equipment (as defined in the UCC) and
(whether or not included in such definition) all other personal property in each
case which is delivered to, prefabricated for, or specifically ordered for a
Bonded Job site, whether or not the same will be deemed to be affixed to, arise
out of, or relate to any real property, together with all accessions thereto.
"Event of Default" means any one or more of the following:
(a) Principal, Indemnitors, or any of them have failed or refused in a
material respect to perform any obligation to Surety; provided, however, the
foregoing will not be deemed an Event of Default hereunder if such failure or
refusal is curable and such cure is effected within ten (10) days following the
earlier of (i) receipt by Indemnitors of notice from Surety of any such failure
or refusal, or (ii) knowledge by Indemnitors of the occurrence of any such
failure or refusal; or
(b) any representation or warranty made or deemed made by any Indemnitor
in this Agreement or any other Surety Credit Document, or which is contained in
any certificate, document, opinion, or financial or other statement furnished
under or in connection with any Surety Credit Document, proves to have been
incorrect in a material respect on or as of the date made or deemed made;
provided, however, Principal will have the right to cure an Event of Default
under this item (b) by delivering to Surety cash in an amount designated by
Surety, in its sole and absolute discretion, within ten (10) days of written
demand having been made by Surety for such delivery. In the event that Surety
determines it is obligated to discharge any performance bond claim before making
such demand (or the expiration of such ten (10) day period), said action will
not operate as a defense to Surety's rights under this Agreement; provided,
however, that such action by Surety will not be an Event of Default under this
Agreement if Indemnitors fully indemnify Surety within ten (10) days of receipt
of any demand by Surety for indemnification; or
(c) an Obligee under a Bonded Contract has declared any Principal to be in
default under such Bonded Contract and such Principal has failed to cure such
default within any cure period provided in such Bonded Contract and as a result
of such default Obligee has made a claim under a Bond, or any Principal has
acknowledged its default under any Bonded Contract irrespective of whether such
Principal is actually in default of the Bonded Contract. It will be no defense
to the enforcement of this Agreement by Surety that any Principal asserts that
it is not in default under the Bonded Contract; or
(d) Surety incurs any Surety Loss (excluding items payable pursuant to
paragraph (b) of the definition of Surety Loss and other attorneys fees and
similar fees and professional fees incurred in the ordinary course of business
that are promptly reimbursed to Surety by
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Indemnitors); provided, however, Principal will have the right to cure an Event
of Default under this item (d) by delivering to Surety cash in an amount
designated by Surety, in its sole and absolute discretion, within ten (10) days
of written demand having been made by Surety for such delivery; or
(e) if Surety is required or deems it necessary to establish a Reserve in
any amount to cover any anticipated or actual loss on any Bond; provided,
however, Principal and Indemnitors will have the right to cure any such Event of
Default under this item (e) by delivering to Surety cash in an amount equal to
such Reserve so established within ten (10) days of such written notice having
been made by Surety; or
(f) any Principal has failed or refused to pay when due or is unable to
pay when due claims, bills, or other Debt incurred in, or in connection with,
the performance of any Bonded Contract, and Principal has failed to deliver to
Surety an amount sufficient to discharge any claim or demand made against Surety
with respect to such Bond within ten (10) days of written demand having been
made on Indemnitors by Surety in respect of such claim or demand. In the event
that Surety determines it is obligated to discharge any Bond claim resulting
from such failure or refusal to pay prior to any cure by Principal or Indemnitor
before the foregoing demand by Surety is made on Indemnitors, said action will
not operate as a defense against any of Surety's rights under this Agreement;
provided, however, that such action by Surety will not result in an Event of
Default under this Agreement if Indemnitors fully indemnify Surety within ten
(10) days of receipt of any demand by Surety for indemnification in respect of
all amounts incurred in respect of such action; or
(g) Principal defaults under any banking facility or other credit
agreement to which Principal is a party in respect of any Debt having an
aggregate principal amount of more than Fifteen Million Dollars ($15,000,000)
which results in (i) acceleration of the Debt thereunder, or (ii) the
foreclosure or notice of foreclosure by the lenders thereunder or applicable
agent on behalf of such lenders of the collateral that secures such Debt
thereunder; or
(h) Principal defaults under any banking facility or other credit
agreement to which Principal is a party in respect of any Debt having an
aggregate principal amount of more than Fifteen Million Dollars ($15,000,000)
which results in such lenders materially limiting the availability of the credit
facility for the business operations of Principal; provided, however, the
foregoing will not be deemed an Event of Default hereunder if such event is
cured within thirty (30) days of the occurrence of said event; or
(i) the commencement of proceedings in bankruptcy, or for reorganization
of any Principal or Indemnitors, or for the readjustment of Debt of any
Principal or Indemnitors, in each case under the Bankruptcy Code, or any part
thereof, or under any other laws, whether state or federal, for the relief of
debtors, now or hereafter existing, by or against any Principal or Indemnitors
and any such proceedings commenced against any Principal or Indemnitors are not
dismissed, discharged, or stayed within sixty (60) days of filing; or
(j) the appointment of a receiver or trustee for any Principal or
Indemnitors or for any substantial part of their assets, or the institution by a
Person other than any Principal or any Indemnitor or any Person acting on their
behalf of any proceedings for the dissolution or the full or
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partial liquidation of any Principal or Indemnitors and such proceedings are not
dismissed, discharged, or stayed within sixty (60) days of filing, or any of
Principal or Indemnitors will discontinue their business or materially change
the nature of their business; or
(k) any of Principal or Indemnitors allow a judgment creditor to obtain
possession of any of the Collateral by any means, including, but without
limitation, levy, distraint, replevin, or self-help, and (i) such possession
continues for five (5) days after written notice thereof to Principal and
Indemnitors from Surety, or (ii) Principal will have failed to cure an Event of
Default under this item (d) by delivering to Surety cash in an amount designated
by Surety, in its sole and absolute discretion, within ten (10) days of written
demand having been made by Surety for such delivery; or
(l) failure to pay any Bond premiums due and payable to Surety.
"Existing Pledged Collateral" means that certain cash collateral in the
aggregate original principal amount of Seventeen Million Five Hundred Thousand
Dollars ($17,500,000) (and all interest, proceeds, and substitutions therefore)
delivered to Surety pursuant to that certain Interim Pledge Agreement dated
September 9, 2004, Integrated Electrical Services, Inc., as Pledgor, in favor of
Surety, as modified by First Amendment to Interim Pledge Agreement dated October
6 , 2004, as further amended by Second Amendment to Interim Pledge Agreement
dated October 12, 2004, as further amended by Third Amendment to Interim Pledge
Agreement dated November 3, 2004, and as restated by that certain Restated
Pledge Agreement of even date by Integrated Electrical Services, Inc. in favor
of Surety.
"GAAP" means generally accepted accounting principles in the United States
of America, as set forth in the opinions and pronouncements of the Accounting
Principles Board and the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards Board,
consistently applied.
"Indebtedness" means, without duplication, any and all Surety Loss, and
the payment and performance of all other obligations and undertakings now or
hereafter owing to Surety with respect to the Bonds and/or under the Surety
Credit Documents, as same may now or hereafter be modified, replaced, extended,
or renewed, in accordance with their terms.
"Indemnitors" means Integrated Electrical Services, Inc., a Delaware
corporation, certain of its Affiliates and Subsidiaries listed on Exhibit B, any
Affiliate or Subsidiary that is a named Principal on any Bond, and any new
Indemnitor added to this Agreement by rider as provided in Section 52, and all
of their successors and assigns.
"Indemnity Agreement" means and includes that certain General Agreement of
Indemnity dated January 9, 1998, executed by Integrated Electrical Services,
Inc. on its behalf and on behalf of any of its subsidiaries or on behalf of any
subsidiary of a subsidiary or successive subsidiaries, direct or indirect, now
existing or hereafter created, in favor of Surety, and that certain General
Agreement of Indemnity dated September 9, 2004, executed by Integrated
Electrical Services, Inc., Xxxxxxxx & Xxxx Construction Co., Inc., Xxxxxx
Electric, Inc., Xxxxxx Electric Company, Inc., Pan American Electric, Inc., DKD
Electric Company, Inc., Xxxxx Electric LP d/b/a Xxxxx Electrical Contractors,
X.X. Xxxxx, Inc., and T&H Electrical Corporation in favor of Surety.
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"Inventory" means and includes all of Indemnitors' now owned and hereafter
acquired inventory, including, without limitation, goods, merchandise, and other
personal property furnished under any contract of service, Bonded Contract, or
intended for sale or lease, all raw materials, work in process, finished goods
and materials, and supplies of any kind, nature, or description which is
delivered to, prefabricated for, or specifically ordered for a Bonded Job Site.
"Licensed Property" means all proprietary systems, software, or any other
assets of a similar nature which are employed by Principal in connection with
any and all contractual work referred to in the Bonded Contracts and/or the
Bonds; any and all inventions, designs, patents, patent applications,
trademarks, trademark applications, trade names, trade secrets, registrations,
copyrights, licenses, franchises, customer lists, and any associated goodwill
that is associated with or required for the completion of any Bonded Contract
and/or the fulfillment of any of Surety's obligations under the Bonds.
"Lien" means any mortgage, deed of trust, pledge, security interest,
hypothecation, assignment, deposit arrangement to assure payment of any debt,
encumbrance, lien (statutory or other), or preference, priority, or other
security agreement, or preferential arrangement to assure payment of any debt,
charge, or encumbrance of any kind or nature whatsoever (including, without
limitation, any conditional sale or other title retention agreement, any
financing lease having substantially the same economic effect as any of the
foregoing, and the filing of any financing statement under the UCC or comparable
law of any jurisdiction to evidencing any of the foregoing).
"Material Adverse Effect" means, relative to any occurrence of whatever
nature (including the adverse determination in any litigation, arbitration, or
governmental investigation or proceeding), (a) a material adverse effect on the
financial condition, business, or business operations of Principal and
Indemnitors taken as a whole, or (b) a material impairment of the collective
ability of Principal and Indemnitors taken as a whole to satisfy their
respective obligations to Surety under the Surety Credit Documents, or (c) a
material adverse effect upon the enforceability against Principal and
Indemnitors of Surety's security interest in the Collateral.
"Obligee" means any named party or parties appearing on any Bond(s) in
whose favor the Bond(s) are issued, or such parties' successors and permitted
assigns.
"Overhead" means the general operating and administrative expenses of any
Indemnitor, including, but not limited to, the cost of rent, utilities, taxes,
governmental charges, and all other expenses of any Indemnitor not allocated to
a specific Bonded Contract.
"Permitted Liens" means:
(a) Liens for taxes, assessments, or governmental charges not yet past due
or that are being contested in good faith by appropriate proceedings and for
which adequate reserves have been established in accordance with GAAP;
(b) mechanics', workmen's, materialmen's and repairmen's Liens or other
Liens arising by operation of law in the ordinary course of business, or
pursuant to customary reservations or retentions of title arising in the
ordinary course of business, of any Indemnitor
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securing obligations that are not past due, or if past due contested in good
faith by appropriate proceedings and that are unfiled and no other action has
been taken to enforce the same;
(c) any Lien granted on their assets by Indemnitors to Surety to secure
the payment of Surety Loss;
(d) Liens in connection with workers' compensation, unemployment insurance
or other social security, old age pension or public liability obligations not
yet due or which are being contested in good faith by appropriate proceedings
and for which adequate reserves are maintained in accordance with GAAP;
(e) statutory Liens of landlords, and Liens of carriers, warehousemen or
suppliers, or other similar possessory Liens arising in the ordinary course of
business; provided, that, the holder of such possessory Lien does not exercise
any foreclosure right to enforce its Lien;
(f) deposits securing, or in lieu of, any surety, appeal, or custom bonds
in proceedings to which any Indemnitor is a party, bids, trade contracts and
leases, statutory obligations, performance bonds and other obligations of a like
nature, and Liens securing judgments for the payment of money (or appeal or
other surety bonds relating to such judgments);
(g) Liens existing on the date hereof and any renewals and extensions
thereof which Liens are described on the attached Exhibit C and any replacement,
refinancing, renewal, or extension of any such Lien in the same property
theretofore subject arising out of the extension, renewal, replacement, or
refinancing of the Debt secured thereby;
(h) common law rights of offset and contractual rights of offset arising
in the ordinary course of business;
(i) any common law or contractual security interest of a surety in the
actual proceeds of a project subject to the underlying bond provided by such
surety;
(j) any other Liens pursuant to any Surety Credit Document;
(k) normal and customary rights of setoff upon deposits of cash in favor
of banks or other depository institutions;
(l) Liens of a collection bank arising under Section 4-210 of the UCC on
items in the course of collection;
(m) Liens of sellers of goods to Principal or any Indemnitor arising under
Article 2 of the UCC or similar provisions of applicable law in the ordinary
course of business, covering only the goods sold and securing only the unpaid
purchase price for such goods and related expenses.
(n) purchase money security interest Liens arising under Article 9 of the
UCC or similar provisions of applicable law in the ordinary course of business,
covering only the goods purchased and securing only the unpaid purchase price
for such goods and related expenses, which are not past due;
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(o) any interest of title of a lessor under, and Liens arising from UCC
financing statements (or equivalent filings, registrations or agreements in
foreign jurisdictions) relating to, leases or short term rentals not prohibited
by this Agreement; and
(p) leases or subleases granted to others not interfering in any material
respect with the business of Principal or any Indemnitor.
"Person" means any individual or entity, whether a trustee, corporation,
partnership, limited liability company, joint stock company, unincorporated
organization, business association or firm, joint venture, a government or any
agent or instrumentality or political subdivision thereof.
"Principal" means Integrated Electrical Services, Inc., a Delaware
corporation, certain of its Affiliates and Subsidiaries listed on Exhibit A and
any other Affiliates and Subsidiaries of Integrated Electrical Services, Inc.
for whom Surety executes Bonds, in each case in their respective capacity as a
named principal under any Bond, and any new Principal added to this Agreement by
rider as provided in Section 52, and any joint ventures in which one or more of
them are involved for which any Bond is issued.
"Records" means correspondence, memoranda, tapes, books, discs, papers,
magnetic storage, and other documents or information of any type, whether
expressed in ordinary or machine language relating to any Bonded Contract or
Collateral.
"Reserve" means a sum of money that may be set aside by Surety to pay its
present and future liabilities under Bonds.
"Retainage" means contract proceeds periodically withheld by an Obligee to
provide further security for Principal's performance of a Bonded Contract, and
as such are payable to Principal only upon a clear demonstration of compliance
with the terms of the Bonded Contract.
"Subsidiaries" means, with respect to any Person, any corporation, limited
liability company, partnership, or other entity wherein such Person owns or
acquires, directly or indirectly, more than fifty percent (50%) of the issued
and outstanding voting stock, voting securities, or other equity interest of
such corporation, partnership, or other entity, or any other corporation,
partnership or other entity the management of which is otherwise controlled,
directly or indirectly, through one or more intermediaries, or both, by any such
Person.
"Surety" means Federal Insurance Company, an Indiana corporation, its
Affiliates and Subsidiaries and any other companies writing Bonds for which this
Agreement is consideration (and other companies from whom Surety procures Bonds
for Principal), and their co-sureties and reinsurors, and their respective
successors and permitted assigns.
"Surety Credit Documents" means the following: (i) the Bonds; (ii) the
Indemnity Agreement; (iii) this Agreement; (iv) UCC Financing Statements listing
any of Indemnitors as debtor and Surety as secured party; (v) any intercreditor
agreement by and between Surety and any banking institution; (vi) Interim Pledge
Agreement dated September 9, 2004, Integrated
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Electrical Services, Inc., as Pledgor, in favor of Surety, as modified by First
Amendment to Interim Pledge Agreement dated October 6, 2004, as further modified
by Second Amendment to Interim Pledge Agreement dated October 12, 2004, as
further modified by Third Amendment to Interim Pledge Agreement dated November
3, 2004, as restated by that certain Restated Pledge Agreement of even date by
Integrated Electrical Services, Inc. in favor of Surety; and (vii) all
amendments, modifications, extensions, additions, substitutions, or other
documents hereafter executed or delivered by any of Indemnitors, which relate to
any of the foregoing documents.
"Surety Loss" means:
(a) all damages, costs, reasonable attorney fees, and liabilities
(including all expenses incurred in connection therewith) which Surety may
sustain or incur by reason of executing or procuring the execution of any Bonds,
or any other bonds, which may be already or hereafter executed on behalf of any
Principal, or renewal or continuation thereof; or which may be sustained or
incurred by reason of making any investigation on account thereof, prosecuting
or defending any action in connection therewith, obtaining a release,
recovering, or attempting to recover any salvage in connection therewith or
enforcing by litigation or otherwise any of the provisions of this Agreement,
including, but not limited to:
(1) money judgments, amounts paid in settlement or compromise, the
full amount of reasonable attorney and other professional fees incurred or paid
by Surety, including without limitation allocated costs of in-house counsel,
accountants, and engineers, court costs and fees, and interest at the Default
Rate on all sums due it from the date of Surety's demand for said sums, whether
interest has been awarded by a court;
(2) any loss which Surety may sustain or incur as a result of any
Bonded Contract or any Bonds, whether that loss results from any activity of any
Principal individually or as part of a joint venture, partnership, or other
entity which has been or may be formed;
(3) any loss which Surety may sustain or incur as a result of any
actions taken by Surety upon information provided by any Indemnitor with respect
to the issuance of any Bonds;
(4) any Bond premiums due Surety;
(5) any amounts that have been paid to Surety to be applied to
Surety Loss that a court of competent jurisdiction determines constitute
"preferences," within the meaning of Section 547 of the Bankruptcy Code, and by
reason thereof Surety is required to disgorge said amounts paid; and
(b) legal, accounting, consulting, and related fees and expenses
reasonably incurred after January 31, 2005, in connection with the Bonds, the
Surety Credit Documents, and/or any application or submission by any of
Indemnitors for the issuance of any Bond or renewal of any existing Bond,
whether or not Surety decides to issue said Bond. Notwithstanding the foregoing,
Indemnitors will be required to reimburse Surety for one hundred percent (100%)
of any filing fees and recording taxes incurred to perfect and continue Surety's
security interest in the Collateral regardless of when those fees are incurred.
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"UCC" means the Uniform Commercial Code as in effect on the date hereof in
Texas, as it may be amended from time-to-time provided that if by reason of
mandatory provisions of law, the perfection or the effect of perfection or
non-perfection of a security interest in any Collateral is governed by any state
other than Texas, "UCC" means the Uniform Commercial Code as in effect in such
other jurisdiction for purposes of the provisions hereof relating to such
perfection or effect of perfection or non-perfection.
"Work" means the specialized electrical and communication services
required of any Principal by any Bonded Contract, whether completed or partially
completed, of such Principal, and includes all other labor, materials,
equipment, and services provided or to be provided by Principal to fulfill such
Principal or Indemnitor's obligations pursuant to such Bonded Contract.
Any collective defined term and any defined term used in the plural will
be taken to encompass individually and collectively all members of the relevant
class. Any defined term used in the singular preceded by "any" will be taken to
indicate any number of the members of the relevant class. Any defined term used
in the singular and preceded by the word "each" will indicate all members of the
relevant class, individually.
2. Due Diligence Items Required to be Delivered by Indemnitors.
Indemnitors will deliver to Surety each of the following, in form and substance
satisfactory to Surety and its counsel:
(a) Favorable opinion of counsel to Principal and Indemnitors in
form acceptable to Surety and its counsel, opining as to the validity and
enforceability of the documents entered into between and among Surety and
Indemnitors and opining to the perfection of the security interests of Surety in
the Collateral. Said enforceability opinion will include an opinion that
Integrated Electrical Services, Inc. is duly formed and that Indemnitors are
validly existing, the execution and delivery of the documents, the fulfillment
of the respective terms and conditions thereof, and the consummation of the
respective transactions contemplated thereby will not violate any provisions of
applicable law or any applicable order or regulation of any court or public
governmental agency, and will not conflict with or constitute a breach a default
under the charter of incorporation, bylaws, or other governing documents of any
of Indemnitors, as amended, or any material agreement, indenture, or other Debt
instrument to which any of Indemnitors are a party or by which any of
Indemnitors are bound, or any law, ordinance, administrative regulation, or
decree of court, that is applicable to any of Indemnitors;
(b) an officer's certificate of each of Indemnitors certifying
appropriate resolutions authorizing the execution, delivery, and performance of
the applicable Surety Credit Documents, certifying that such resolutions have
been approved in accordance with each of Indemnitors' governing documents, and
certifying incumbencies and true signatures of the officers so authorized;
(c) evidence of the good standing of each of Indemnitors in the
jurisdiction in which such Indemnitor is formed; and
(d) such other information and documents as may reasonably be
required by Surety.
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Contemporaneously with the execution of this Agreement, Principal will pay
Surety a facility fee in the amount of Four Hundred Thousand Dollars ($400,000).
Surety hereby acknowledges receipt of Three Hundred Thousand Dollars ($300,000)
of this Four Hundred Thousand Dollars ($400,000) facility fee in conjunction
with the execution of that certain First Amendment to Interim Pledge Agreement
dated October 6, 2004, and that certain Third Amendment to Interim Pledge
Agreement dated November 3, 2004. The delivery of said facility fee will not
reduce Surety Loss, or otherwise affect Surety's rights under the Indemnity
Agreement or any other of the Surety Credit Documents.
3. Bonds; Conditions Precedent to all Bonds. Subject to the terms of this
Agreement, and so long as no Event of Default has occurred and is continuing,
Surety is willing to consider the extension of additional surety credit for the
purposes set out in this Agreement. Surety reserves the right to decline to
execute any and all bonds, in Surety's sole and absolute discretion, and if
Surety executes any Bond, Surety will not be obligated to expand or renew any
such Bond. No claim will be made, nor any cause of action asserted against
Surety as a consequence of its failure to execute any bond(s). Whether to
approve or disapprove any application of any Principal for surety credit and
issue bonds in response thereto will be determined on a case by case basis and
is within Surety's sole and absolute discretion. Without limiting the generality
of the foregoing, Indemnitors specifically acknowledge and confirm Surety's
right to decline execution of any bond, or all bonds, as set forth in this
Agreement.
Without limiting the generality of the foregoing, the determination of
Surety in its sole and absolute discretion, to issue any Bond will be subject to
the further conditions precedent that on the date of such issuance each of the
following conditions will be satisfied, in the sole and absolute discretion of
Surety:
(a) The following statements will be true and, by its request for
the issuance of such Bond, Indemnitors will be deemed to have certified to
Surety that as of the date of such issuance:
(1) the representations and warranties contained in this
Agreement and the Surety Credit Documents are correct in all material respects
on and as of the date of such issuance as though made on and as of such date,
except to the extent that such representations and warranties specifically refer
to an earlier date, in which case they are true and correct as of such earlier
date; and
(2) no Event of Default has occurred and is continuing, or
would result from the issuance of such Bond.
(b) Surety will have received such other approvals, opinions, or
documents as Surety may reasonably request.
(c) Any banking or other financial institutions that have any
interest in the Collateral will have entered into an intercreditor agreement
with Surety which will address: (i) the release of the security interest of any
bank or other financial institution in the Collateral and Surety's first
priority security interest in the Collateral; and (ii) provisions addressing the
release of Indemnitors as described in Section 4.
11
(d) Any request for a Bond will contemplate any of Indemnitors being
named as the principal.
(e) Surety will be the holder of a first priority security interest
in the Collateral subject only to Permitted Liens.
4. Indemnity; Exoneration; Release of Indemnitor. Integrated Electrical
Services, Inc. has full right and authority to execute any and all current or
future documents and/or amendments on behalf of any Principals and Indemnitors
without requiring the separate signature of any such Principal and Indemnitors.
Although execution will not be necessary to bind any such Affiliate or
Subsidiary or other such Person as an Indemnitor hereunder, at the request of
Surety, Indemnitors will cause any such Affiliate or Subsidiary or other such
Person to execute this Agreement. Said Affiliates and Subsidiaries and such
other Person will be deemed to be an Indemnitor hereunder as though they were
original signatories hereto. Indemnitors agree to indemnify, and keep
indemnified, and hold and save harmless Surety against all Surety Loss. The duty
of Indemnitors to indemnify Surety is a continuing duty, separate from the duty
to exonerate, and survives any payments made in exoneration of Surety. Amounts
due Surety (together with interest at the Default Rate) will be payable upon
written demand.
Indemnitors recognize and acknowledge the common law right of Surety to be
exonerated by Indemnitors. Upon a Surety Loss, in the event Indemnitors fail or
refuse to exonerate Surety upon written demand, all Indemnitors agree, upon
demand by Surety, to exonerate Surety from Surety Loss, by satisfying
Indemnitors' obligations under the Bonded Contracts and obtaining either a
withdrawal of all claims against Surety under the Bonds or a general release.
Principal will pay Surety's reasonable legal, accounting, consulting and
related fees and expenses reasonably incurred after October 31, 2004, in
connection with the Bonds, the Surety Credit Documents, and/or any application
or submission by any of Indemnitors for the issuance of any Bond or renewal of
any existing Bond, whether or not Surety decides to issue said Bond.
Notwithstanding the foregoing, Indemnitors will be required to reimburse Surety
for one hundred percent (100%) of any filing fees and recording taxes incurred
and required to perfect and continue Surety's security interest in the
Collateral regardless of when those fees are incurred.
In order to facilitate the sale of the equity of any Principal or the
Collateral (other than the transfer of Inventory or Equipment that is required
pursuant to the terms of any Bonded Contract to be transferred to any Obligee on
any Bond (or any assignee of such Obligee or any other owner, or assignee of any
owner, of the Work) upon completion or termination of the Work in the ordinary
course of business, as to which no release is necessary) of any Principal and
Indemnitor (exclusive of Integrated Electrical Services, Inc.: (i) in the event
the sale is of the equity or of any such Collateral of any Indemnitor that is
not also a Principal under any outstanding Bonds and provided, that, the sales
proceeds are remitted to and used in the ordinary course of business of the
continuing Indemnitors, then Surety will upon request of any such Indemnitor (y)
in the event the sale is of the equity interest, release such Indemnitor from
its guaranty and other obligations (including the pledge of its assets as
collateral)of any such Surety; and (z) in the event the sale is of Collateral,
release such Collateral as collateral; and (ii) in the event the sale is of the
equity or of any Collateral (other than the transfer of Inventory or
12
Equipment that is required pursuant to the terms of any Bonded Contract to be
transferred to any Obligee on any Bond (or any assignee of such Obligee of any
other owner, or assignee of any owner, of the Work) upon completion or
termination of the Work in the ordinary course of business, as to which no
release is necessary) of any Principal under any outstanding Bonds and provided,
that, the sales proceeds are remitted to and used in the ordinary course of
business of the continuing Indemnitors, then Surety will upon request of any
such Principal (y) in the event the sale is of equity interest, release such
Principal from its guaranty and other obligations (including the pledge of its
assets as collateral) with respect to the Bonds issued by Surety for the other
Principals and Indemnitors; and (z) in the event the sale is of any such
Collateral release such Collateral as collateral with respect to Bonds issued by
Surety for the other Principals and Indemnitors; provided, that, in each of (y)
and (z) (a) such Principal continues as an Indemnitor with respect to all Bonds
issued on behalf of such Principal and Surety will retain all Collateral of such
Principal to secure all Surety Loss and other obligations on such Bonds; (b)
Surety is provided with the indemnity of a Person(s), acceptable to Surety in
its sole and absolute discretion, with respect to all Bonds issued on behalf of
such Principal and such new indemnitor(s) executes an indemnity agreement in
favor of Surety, in a form that is acceptable to Surety, in its sole and
absolute discretion; and (c) all Bonds other than payment and performance Bonds
are replaced within ninety (90) days of the sale. Notwithstanding the foregoing,
the provisions of this paragraph will not require Surety to release: (x) the
Existing Pledged Collateral; (y) any Proceeds of Collateral that are required to
be delivered to Surety or to any separate account following an Event of Default;
and (z) any cash delivered to Surety pursuant to the terms of this Agreement.
5. Security Interest; Obligation Secured. To secure payment or other
performance of any and all Surety Loss, and the payment and performance of all
other obligations and undertakings now or hereafter owing to Surety with respect
to the Bonds and/or under the Surety Credit Documents, as same may now or
hereafter be modified, replaced, extended, or renewed, Indemnitors hereby grant
to Surety a perfected first priority (subject to Permitted Liens) security
interest in the Collateral. The security interest created herein will attach
without the execution or delivery to Surety of any instruments, documents,
assignments, or other agreements of transfer, and in the event any such
instruments, documents, or other agreements of transfer are or will be delivered
to Surety, the same are and will be in furtherance of and in addition to the
security interest created by virtue of this Agreement. As additional security
for any and all Surety Loss, Indemnitors have caused to be delivered to Surety
and named Surety as the beneficiary of that certain Irrevocable Letter of Credit
No. CLS420168 dated April 26, 2004, issued by Bank One, N.A. in the face amount
of Five Million Dollars ($5,000,000), and have pledged to Surety the Existing
Pledged Collateral.
Indemnitors will at all times keep Surety's security interest properly
perfected and hereby designate Surety as their attorney in fact to do any acts
or deeds or execute such documents reasonably appropriate to accomplish said
perfection. Said designation will be irrevocable as long as any obligation of
any of Indemnitors to Surety under this Agreement and/or any of the Surety
Credit Documents is outstanding. The right is expressly granted to Surety, at
Surety's discretion, to file in those jurisdictions where the same is permitted,
one or more financing statements under the UCC and indicating therein the types
or describing the items of the Collateral. Without the prior written consent of
Surety, none of Indemnitors will, after the date hereof, file or authorize or
permit to be filed in any jurisdiction any financing or like statement
13
relating to the Collateral other than filings of Permitted Liens. Surety's
security interest will be first and prior to any other Liens on the Collateral
except for Permitted Liens. Surety reserves all rights to contest the validity
or priority of any Lien.
If any Accounts constituting Collateral should be evidenced by promissory
notes, trade acceptances, or other instruments for the payment of money,
Indemnitors promptly will deliver the same to Surety appropriately endorsed to
the order of Surety. Regardless of the form of each endorsement, Indemnitors
hereby waive presentment, demand, notice of dishonor, protest, and notice of
protest, and all other notices with respect thereto, except as required by this
Agreement.
At any time, and at reasonable intervals, upon the request of Surety,
Indemnitors will: (a) give, execute, deliver, file, and/or record any notice,
statement, instrument, document, agreement, or other papers that may be
necessary or desirable, or that Surety may reasonably request in order to
create, preserve, perfect, or validate any security interest granted herein or
to enable Surety to exercise and enforce its rights hereunder or with respect to
such security interest; and (b) permit Surety or Surety's representatives, at
reasonable intervals during normal business hours, to inspect and make abstracts
from any of Indemnitors' books and records pertaining to the Collateral.
Upon the Indebtedness being paid and satisfied in full, Surety will, with
reasonable promptness, execute all necessary documents and file same in every
jurisdiction in which the security agreement or any Surety Credit Document was
filed to effectuate a termination of said security agreement and all Liens
evidenced thereby.
6. Set Off Rights; Description of Collateral. Indemnitors confirm and
acknowledge that Surety has the right to set off against Surety Loss any and all
amounts that may be owing from time to time by Surety to any Indemnitor in any
capacity, including, but without limitation, any balance or share belonging to
any Indemnitor of any deposit or other account with Surety. The Collateral
includes all of any Principal's or Indemnitor's right, title, and interest in
and to all existing and future Bonded Contracts and associated contract rights;
Accounts; all claims, rights, and choses in action against any Obligee on any
Bond or against any other Person with respect to any Bond or Bonded Contract;
Bonded Contracts Balances; to the extent assignable (provided, that, any such
prohibition on assignment would not be rendered ineffective pursuant to Article
9 of the UCC, including, without limitation Section 9-406 and 9-408 of the UCC,
or any successor provisions and further, provided, that, any such prohibition on
assignment has not otherwise been rendered ineffective, lapsed, or terminated)
all rights and actions that any Indemnitor may have or acquire in any
subcontract, purchase order, or other agreement in connection with any Bonded
Contract, and against any subcontract, purchase order, or other agreement with
any Person furnishing or agreeing to furnish or supply vehicles, labor,
supplies, machinery, or other inventory or equipment in connection with or on
account of any Bonded Contract, and against any surety or sureties of any such
subcontractor, laborer, or other Person; any and all Equipment; any and all
Inventory; any and all books, accounts, computer software, and other computer
stored information, and any and all drawings, plans, specifications, shop and as
built drawings, utilized in or necessary to fully perform all obligations and
services required of Principal under the Bonded Contracts; all progress
schedules, work in process schedules (including, but not limited to, estimates
of completion costs), accounts receivable ledgers, accounts payable ledgers, and
14
estimates of completion costs relating to any and all Bonded Contracts; and any
and all proceeds and products arising with respect thereto.
Anything herein to the contrary notwithstanding, (i) Indemnitors will
remain liable under any contracts and agreements included in the Collateral,
solely to the extent set forth therein, to perform all of their duties and
obligations thereunder to the same extent as if this Agreement had not been
executed, (ii) the exercise by Surety of any of the rights hereunder will not
release any Indemnitor from any of its duties or obligations under the contracts
and agreements included in the Collateral, and (iii) Surety will not have any
obligation or liability under any contracts and agreements included in the
Collateral by reason of this Agreement, nor will Surety be obligated to perform
any of the obligations or duties of Indemnitor thereunder or take any action to
collect or enforce any claim for payment assigned hereunder.
7. Representations and Warranties. Indemnitors hereby warrant, covenant,
and represent that:
(a) Indemnitors are the exclusive owners of the Collateral and have
good and marketable title to the Collateral and that on the date of this
Agreement the Collateral is free of any and all Liens (excluding Permitted
Liens).
(b) Until such time as all of the Indebtedness has been paid and
satisfied in full, none of Indemnitors will sell, transfer, convey, or assign
any of the Collateral without prior written consent of Surety or permit any Lien
on the Collateral (other than Permitted Liens).
(c) If, at any time, the Collateral will be deemed unsatisfactory to
and by Surety or in the event Surety will otherwise deem itself, its security
interests, its Collateral, or its recovery of Surety Loss unsafe or insecure,
then and on demand of Surety, Indemnitors will immediately furnish such further
collateral or make such payment on said account as will be reasonably
satisfactory to Surety to be held by Surety as if originally pledged hereunder.
(d) The current jurisdiction of formation as of the date of this
Agreement, of each of Principal and Indemnitors is correctly reflected on page
one and/or the attached Exhibits A and B, respectively. Indemnitors will notify
Surety of any change in any Indemnitor's name, identity, corporate structure, or
change in jurisdiction in which it is formed or exists thirty (30) days prior to
such change. Indemnitors will not be required to give any additional advance
notice to Surety of the name changes that are contemplated on the attached
Exhibit A, but will give Surety notice of any such name change within ten (10)
days of the effective date of the change.
(e) Indemnitors are not in default with respect to any of their
existing Debt except for such defaults that would not, individually or in the
aggregate, have a Material Adverse Effect, and the making and performance of
this Agreement and the Surety Credit Documents by Principal and Indemnitors will
not (immediately or with the passage of time, the giving of notice, or both):
(i) Violate the charter, bylaws, or other governing document
provisions of any Indemnitor, or violate any applicable laws or result in a
default under any contract, agreement, or instrument to which any of Indemnitors
is a party or by which any of
15
Indemnitors or their property is bound, except for such violations or defaults
that would not, individually or in the aggregate, have a Material Adverse
Effect; or
(ii) result in the creation or imposition of any Lien (other
than Permitted Liens) upon any assets of any Indemnitor other than Liens in
favor of Surety.
(f) Indemnitors have the corporate or other power and authority to
enter into and perform this Agreement and the Surety Credit Documents to which
they are a party, and to incur the Indebtedness herein and therein provided for,
and have taken all corporate or other action necessary to authorize the
execution, delivery, and performance of this Agreement and such other Surety
Credit Documents.
(g) This Agreement and each other Surety Credit Document to which
Principal and Indemnitors are a party constitute valid and binding obligations
of such Principal and Indemnitors, and are enforceable against such Principal
and such Indemnitors in accordance with their respective terms.
(h) Each consent, approval, or authorization of, or filing,
registration, or qualification with, any Person required to be obtained by
Indemnitors in connection with the execution and delivery of this Agreement or
the undertaking or performance of any obligation hereunder or thereunder has
been duly obtained, other than any filings to perfect the Liens on the
Collateral.
(i) Indemnitors will promptly pay all of their taxes, assessments,
and other governmental charges prior to the date on which any penalties are
attached thereto, establish adequate reserves for the payment of taxes and
assessments and make all required withholding and other tax deposits; provided,
however, that nothing contained in this Agreement will be interpreted to require
the payment of any tax, assessment, or charge so long as its validity is being
contested in good faith (and for which adequate reserves have been established)
by appropriate proceedings and as to which foreclosure and other enforcement
proceedings will not have been commenced (unless fully bonded or otherwise
effectively stayed).
(j) With regard to the rights with respect to the Bonded Contracts
in which Indemnitors have hereby granted Surety a security interest, Indemnitors
represent and warrant to Surety:
(i) Such rights arise under one or more existing binding
written contracts between a Principal and the other party or parties thereto, or
will be evidenced by a binding written contract before performance thereunder,
and do or will represent a bona fide transaction, enforceable in accordance with
its terms;
(ii) The title of such Principal to the Bonded Contracts is
absolute;
(iii) No rights of any Principal under any Bonded Contracts
have been transferred to any other Person except pursuant to Permitted Liens;
16
(iv) Indemnitors have not received any prepayment of amounts
due Surety under any Bonded Contracts;
(v) Indemnitors will not, without the prior written consent of
Surety, permit any material amendment, modification, settlement, compromise, or
extension to any of the Bonded Contracts if such modification, compromise,
settlement, or extension would adversely affect the interests of Surety or
extend the time of any payment required thereunder; and
(vi) To the best of Indemnitors' knowledge, information, and
belief, all parties to any Bonded Contracts, and other commitments that
constitute Collateral and to which any of Indemnitors are a party, have complied
in all material respects with the provisions of such Bonded Contracts and other
commitments; no party is in default in any material respect under any provision
thereof; and no event has occurred which, but for the giving of notice or the
passage of time, or both, would constitute a default.
(k) Indemnitors have the insurance in force that is usual and
customary for those engaged in the same or similar business of Indemnitors, and
that they will maintain said insurance in force with good and substantial
carriers with insurance companies with an A- rating or better. Indemnitors
further agree to furnish Surety, upon request, with the insurance in force and
with copies of the policies of said insurance evidencing the existence of the
coverage called for by this Agreement. Indemnitors will obtain all necessary
insurance coverages, including, without limitation, workers' compensation,
liability, and other insurance coverages, in the amounts and as required by the
Bonded Contracts that are the subject of the Bonds, protecting itself, Obligees
(as applicable), and, if requested, Surety. Indemnitors will deliver to Surety
copies of Certificates of Insurance showing Surety as an additional insured for
all such insurance policies which Surety has specifically requested that it be
added as an additional insured, except as to professional liability coverages.
(l) None of Indemnitors is insolvent within the meaning of the
Bankruptcy Code.
(m) Principal or Indemnitors will give prompt notice to Surety of
their knowledge of any pending or threatened proceeding or claim before any
court or governmental agency or department which involves a reasonable material
risk of having a Material Adverse Effect.
(n) Indemnitors are in material compliance with all laws, statutes
and governmental rules and regulations applicable to it or them, except for any
failure so to be in compliance which would not reasonably be expected to have a
Material Adverse Effect.
(o) Indemnitors perform minimal work as a party contracting directly
with the Federal Government or any of its agencies and do not anticipate that
changing.
(p) Bonds have been issued in the names of Riviera Electric, LLC,
Riviera Electric LP, Riviera Electric Inc., and Riviera Electric as the named
Principal. Indemnitors represent and warrant to Surety that the proper name of
the entity is Riviera Electric LLC. If
17
Surety requests that IES take the necessary steps to correct any Bonded
Contracts and Bonds that may have been issued with the names Riviera Electric,
Riviera Electric LP, or Riviera Electric Inc. to change the name to Riviera
Electric LLC, Indemnitors will take such steps.
(q) Ron's Electric referred to in a UCC Financing Statement filed on
or about April 11, 1984, by First American Bank is not the same company as Ron's
Electric, Inc., nor is that Ron's Electric in any way affiliated with any of
Indemnitors.
(r) The security interests of: Liebert North America Corporation,
evidenced by a UCC-1 financing statement filed on December 13, 2002, with the
Arizona Secretary of State listing Xxxxxxxx Xxxxxxxx Electric, as the debtor,
and assigned filing number 200212438781; Xxxxx Fargo Bank, N.A., evidenced by a
UCC-1 financing statement filed on October 20, 1999, with the Arizona Secretary
of State for Xxxxxxxx Electric Co. Inc., as the debtor, and assigned filing
number 01089269; and First American National Bank, evidenced by a UCC-1
financing statement filed on May 10, 1990, with the Tennessee Secretary of State
for Pan American Electric Inc., as the debtor, and assigned filing number
900770883, have been terminated. Indemnitors will cause the foregoing UCC-1
financing statements to be terminated with each of the respective Secretary of
State offices.
(s) As of the date hereof, none of Indemnitors (exclusive of
Integrated Electrical Services, Inc.) is bound by any agreement, indenture, or
other Debt instrument for borrowed money involving a principal amount in excess
of Two Hundred Fifty Thousand Dollars ($250,000).
8. Use of Licensed Property Indemnitors hereby grant to Surety an
irrevocable, non-exclusive, royalty-free, and fully paid-up license and right to
use the Licensed Property upon the occurrence of and during the continuance of
any Event of Default for the limited purpose of: (i) obtaining bids for the
completion of any Bonded Contract; (ii) taking possession of the Work under any
Bonded Contract; (iii) completing, or consenting to the completion of, any
Bonded Contract; and (iv) tendering the completion of any Bonded Contract to any
Obligee that has agreed to accept a tender of completion of the Bonded Contract.
9. Preservation of the Collateral. Principal and Indemnitors will use
reasonable efforts to preserve the Collateral and defend the title and Surety's
security interest therein, at Principal and Indemnitors' cost and expense. Each
Principal and Indemnitors' principal place of business and chief executive
office as of the date of this Agreement is correctly reflected on Exhibits A and
B, respectively. The principal place of business and chief executive office of
Integrated Electrical Services, Inc., and location of its Records related to the
Bonded Contracts, is correctly reflected in Section 39. The Records of each
Principal and Indemnitor related to the Collateral are located at the principal
places of business and chief executive offices reflected on Exhibits A and B,
respectively. Indemnitors agree to give Surety immediate prior written
notification of the establishment of any new chief executive office or principal
place of business; and the discontinuance of any office or place of business.
Indemnitors will pay and discharge promptly all taxes, assessments, and
governmental charges or levies imposed upon the Collateral, as well as all
judgment liens and all claims for labor and materials which, if unpaid, might
constitute a Lien or charge upon the Collateral (other
18
than Permitted Liens), unless and only to the extent that the same will
currently be duly contested in good faith (and for which adequate reserves have
been established) by appropriate proceedings and as to which foreclosure and
other enforcement proceedings will not have been commenced (unless fully bonded
or otherwise effectively stayed).
Upon the occurrence of an Event of Default, at its option, Surety may
discharge valid taxes, Liens, security interests, or other encumbrances at any
time levied or placed on said Collateral. Indemnitors agree to reimburse Surety,
on demand, for any such payment made, or any such expense incurred by Surety
pursuant to the foregoing authorization. Any amounts so advanced, paid or
expended will be included within the defined term "the Indebtedness," and will
bear interest from the time advanced, paid, or expended at the Default Rate and
be secured by the Collateral and its payment enforced as if it were part of the
original Indebtedness. Any sum expended, paid, or advanced under this paragraph
will be at Surety's sole option and not constitute a waiver of any default or
right arising from the breach by Indemnitors of any covenant or agreement
contained in the Surety Credit Documents.
10. Indemnitors to Hold Contract Funds in Trust. Indemnitors agree and
expressly declare that all funds due or to become due under the Bonded Contracts
are trust funds, whether in possession of Indemnitors or another, for the
benefit and the payment of all Persons to whom Indemnitors incur obligations in
the performance of the Bonded Contracts, for which Surety is or may be liable
under the Bonds. If Surety discharges any such obligations, with or without a
claim asserted against Surety under the Bonds, it will be entitled to assert the
right of such Person to the trust fund. All payments received for or on account
of any Bonded Contract will be held in a trust fund to assure the payment of
obligations incurred or to be incurred in the performance of any Bonded Contract
and for labor, materials, and services furnished in the prosecution of the
performance required by any Bonded Contract or any extension or modification
thereof. All monies due and to become due under any Bonded Contract are also
trust funds, whether in the possession of Indemnitors, or otherwise. Such trust
funds will be for the benefit and payment of all obligations for which Surety is
or may be liable under any Bonds. Such trust funds will inure to the benefit of
Surety for any liability or Surety Loss it may have or sustain under any Bond,
and this Agreement and declaration constitute notice of such trust. As long as
no Event of Default has occurred, the trust funds, unless otherwise restricted
or regulated by state or local laws, can be commingled with other funds, but the
trust fund nature and purpose as stated in this paragraph will not be modified
nor waived by this commingling provision.
Upon the occurrence of an Event of Default, Indemnitors will, upon demand
of Surety, open an account(s) with a bank or similar depository designated by
Indemnitors and approved by Surety, which account(s) will be designated as trust
account(s) for the deposit of such trust funds, and will deposit therein all
monies paid or to be paid under the Bonded Contracts. Withdrawals from such
account(s) will be by check or similar instruments signed by a representative of
Surety and, at Surety's option, countersigned by Indemnitors. Said trust(s) will
terminate on the payment by Indemnitors of all the contractual obligations for
the payment of which the trust(s) is created. In furtherance of the foregoing,
Surety acknowledges that absent the occurrence of an Event of Default and such
demand by Surety, Principal's cash management system will not be affected or
changed by the terms of this Agreement.
19
11. Premium Payment. Indemnitors agree to pay all premiums on the Bonds,
computed in accordance with the regular manual of rates in effect on the date
the Bond(s) are executed. The failure of any Indemnitor to pay the bond premiums
or the failure of Surety to receive premiums will not provide Indemnitors with
any defense to an action under this Agreement. Indemnitors also agree to pay all
premiums due Surety on any insurance policy(ies) issued by Surety for the
benefit of any Indemnitor.
12. Corporate Identity and Existence. None of Principal or Indemnitors has
used any trade name (other than its legal name) or previous names during the
time period of July 1, 2005, through the date of this Agreement other than those
set out on Exhibits A and B, respectively. Each of Principal and Indemnitors is
a corporation or other legal entity duly organized, validly existing, and in
good standing under the laws of the state and/or other jurisdiction as indicated
in Exhibits A and B, respectively. Each of Principal and Indemnitors has the
corporate or other power to own its properties and to engage in the business it
conducts, and is duly qualified and in good standing as a foreign corporation in
the jurisdictions wherein the nature of the business transacted by it or
property owned by it makes such qualification necessary, except where the
failure to be so qualified could not reasonably be expected to have a Material
Adverse Effect. Each of Principal and Indemnitors will maintain their formal
existence (in good standing where appropriate under state or other governing
law) and remain or become duly qualified (and in good standing where appropriate
under state or other governing law) as a foreign entity in each jurisdiction in
which the conduct of their respective businesses requires such qualification or
license except in each case where the failure to maintain such existence to be
so qualified would not reasonably be expected to have a Material Adverse Effect.
Principal and Indemnitors will use reasonable efforts to furnish Surety with any
financial information related to Indemnitors or the Collateral in the form and
at the time reasonably appropriate and as reasonably requested by Surety and as
set out in Section 13 of this Agreement.
13. Accounts; Financial Reporting; Books and Records. Indemnitors will:
(a) provide Surety with copies of yearly audited consolidated financial
statements as soon as possible upon completion and in no event later than one
hundred twenty (120) days after the end of the period under audit; (b) furnish
Surety with true copies of unaudited quarterly consolidated and consolidating
financial statements for Indemnitors as soon as reasonably practicable and in no
event later than sixty (60) days after the end of the period under audit; (c)
provide Surety with copies of any and all financial records or similar financial
disclosures that Indemnitors provide to any lender under the terms set out in
any credit facility entered into or to be entered into by any Indemnitors; (d)
provide Surety with a quarterly summary of any contracts entered into with the
Federal Government or any of its instrumentalities and identifying any contracts
that they anticipate pursuing with any Federal Government or instrumentality
within the next following three (3) months; and (e) such other financial
information in a form as Surety will reasonably require upon completion and in
no event later than sixty (60) days after the period under review. These
financial documents will be prepared in conformity with GAAP, subject to normal
year-end audit adjustments and the absence of footnotes as applicable, and in
each instance will present fairly and accurately the financial condition of
Indemnitors, as applicable, as of the dates of the statements and the results of
their operations for the periods then ended. Indemnitors agree to immediately
notify Surety of the occurrence of any material change in their financial
condition that would reasonably be expected to have a Material Adverse Effect.
Indemnitors represent that their books and records will be kept accurately and
in a timely manner and in accordance with good business practices.
20
Indemnitors at all times will keep accurate and complete Records of
Indemnitors' Accounts and Bonded Contracts, and make those Records available for
review, upon a reasonable and appropriate request by Surety. Surety will have
the right at all times during regular business hours to free access to the
papers of each Indemnitor including, without limitation, its books, records,
accounts, computer software, and other computer stored information, licenses,
copyrights, patents, and other intellectual property, for the purpose of
examining, copying, or reproducing the same. Each Indemnitor authorizes and
requests any and all depositories in which funds of any Indemnitor may be
deposited to furnish to Surety, upon reasonable request by Surety, statements of
account and any other documents reflecting receipts and disbursements and any
Person doing business with Indemnitors is authorized to furnish any information
requested by Surety concerning any transaction. Subject to the terms and
conditions of that certain Nondisclosure and Confidentiality Agreement effective
October 1, 2004, executed by and between Chubb & Son, a division of Federal
Insurance Company, and Integrated Electrical Services, Inc., Surety may furnish
copies of any and all statements, agreements, and financial statements and any
information which it now has or may obtain concerning each of the Indemnitors to
other Persons or companies for the purpose of procuring co-suretyship or
reinsurance, or during the investigation of claims that may be, or have been,
asserted against Surety.
14. Representations; Duty to Notify Surety. None of Indemnitors intends to
file any proceeding in bankruptcy, or for reorganization, or for readjustment of
their debts under the Bankruptcy Code. Indemnitors acknowledge that any such
filing would be a fundamental change in circumstances. The representations and
warranties of Indemnitors contained in this Agreement are true and correct and
complete on and as of the date of this Agreement.
Indemnitors hereby undertake the duty to notify Surety at the earliest
practicable moment of: (i) any material change in the terms or provisions of any
of the Bonded Contracts that would materially and adversely affect Surety; and
(ii) any material change in any representation made in this Agreement or in any
other document or provided to Surety in connection with its obligations of
suretyship that would materially and adversely affect Surety. Indemnitors
acknowledge hereby that Surety has and will continue to rely upon such
information in undertaking its obligations to third parties under said Bonds.
Indemnitors will promptly notify Surety immediately if any of them becomes aware
of the occurrence of any Event of Default or of any fact, condition, or event
that only with the giving of notice or passage of time or both, could become an
Event of Default, or of the failure of Indemnitors to observe any of their
respective undertakings hereunder and under any of the Surety Credit Documents.
15. Bankruptcy Court Approval. In the event any of Indemnitors file for
relief under the Bankruptcy Code and Surety determines that it is necessary or
desirable that bankruptcy court approval be obtained with respect to this
Agreement or the transactions contemplated hereunder, subject to compliance with
law and any applicable orders of the bankruptcy court, trustee, receiver or
equivalent Person, Indemnitors will use their respective reasonable best efforts
to obtain a court order which, among other things, (i) determines that this
Agreement (and any other Surety Credit Documents entered into by Indemnitors
with Surety) was proposed by Surety in good faith and should be approved; (ii)
determines that Surety is a creditor who gave "new value" and entered into a
"contemporaneous exchange for value" with Indemnitors as contemplated by the
Bankruptcy Code, including, but not limited to, Sections 547(a)(2) and 547(c) of
the Bankruptcy Code, when
21
entering into this Agreement (and any other documents entered into by any of
Indemnitors with Surety) and that the transfers made by Indemnitors do not
constitute preferences under the provisions of Section 547 of the Bankruptcy
Code; (iii) authorizes and directs Indemnitors, as applicable, to ratify this
Agreement (and any other Surety Credit Documents entered into by Indemnitors
with Surety); (iv) authorizes and directs Indemnitors, as applicable, to
execute, deliver, perform under, consummate, and implement, this Agreement,
together with all additional instruments and documents that may be reasonably
necessary or desirable to implement the transactions contemplated in this
Agreement; (v) authorizes claims and recourse by Surety against the Collateral
for any reason set forth in this Agreement (and any other documents entered into
by Indemnitors with Surety); and (vi) approves any post petition security
interest, as provided in Section 552 of the Bankruptcy Code. The provisions of
this Section 15 will apply regardless of whether any of Indemnitors is a debtor
in any bankruptcy cases.
In such event, and at the request of Surety, Indemnitors, as applicable,
will promptly make any filings, take all actions, and use their respective best
efforts to obtain any and all other approvals and orders necessary or
appropriate for consummation of the transactions contemplated in this Agreement,
subject to their obligations to comply with any order of any bankruptcy court.
In the event an appeal is taken, or a stay pending appeal is requested,
from any order entered in any bankruptcy proceeding, Indemnitors, as applicable,
will immediately notify Surety of such appeal or stay request and will provide
to Surety within one business day a copy of the related notice of appeal or
order of stay. Any of Indemnitors, as applicable, will also provide Surety with
written notice of any motion or application filed in connection with any appeal
from either of such orders.
Indemnitors will cooperate in providing such information and evidence as
is necessary to obtain the orders described in this Section 15.
16. Adequate Assurance of Future Performance. Regardless of whether an
Event of Default has occurred, Indemnitors agree that in the event of a filing
by or against any of Indemnitors of a proceeding under the Bankruptcy Code:
(a) Surety is the holder of a "claim" and is a claimant within the
meaning of Section 101(5) of the Bankruptcy Code and is a "party in interest"
within the meaning of Sections 362(d) of the Bankruptcy Code. Surety has
standing as a party in interest to be heard in all matters including, without
limitation, the right to seek relief pursuant to Sections 361-365 of the
Bankruptcy Code;
(b) an Event of Default will be deemed to continue to exist and will
not be deemed to be cured notwithstanding the payment by Surety pursuant to the
Bonds of claims, bills, or other Surety Loss incurred in or in connection with
the performance of the Bonded Contracts;
(c) time is of the essence in any Indemnitors acceptance or
rejection of a Bonded Contract pursuant to Section 365 of the Bankruptcy Code,
and any delay in any Indemnitors prompt acceptance or rejection of same may
materially increase Surety Loss; and
22
(d) with respect to any Bonded Contract assumed by any Indemnitor
pursuant to Section 365 of the Bankruptcy Code, the cure of any default and the
adequate assurance of future performance to which Surety will be entitled will
include, but not be limited to: (i) payment by Indemnitors to Surety in an
amount not less than any Reserve which Surety may be required by statute or
otherwise deem necessary to establish with respect to the Bonded Contract so
assumed; or (ii) Indemnitors may provide Surety with an irrevocable letter of
credit, financial guarantee, or surety bond in a form and from a financial
institution or corporate surety reasonably acceptable to Surety in an amount no
less than any Reserve which Surety may be required by statute or otherwise deem
necessary to establish with respect to the Bonded Contract so assumed.
Indemnitors represent and agree with Surety that the Collateral, the Existing
Pledged Collateral, the Indemnity Agreement, and any collateral and assurances
provided for in the Surety Credit Documents is insufficient for purposes of
providing adequate assurance of future performance to Surety with respect to any
Bonded Contract assumed by such Indemnitor pursuant to Section 365 of the
Bankruptcy Code.
17. Use of Cash Collateral. Nothing herein will be deemed to be a consent
by Surety that Indemnitors use any "cash collateral," within the meaning of
Section 363 of the Bankruptcy Code, including without limitation proceeds from
Bonded Contracts, the Existing Pledged Collateral, and the Collateral. In the
event that a court of competent jurisdiction determines that, notwithstanding
the foregoing, Indemnitors may use any such "cash collateral" then Indemnitors
stipulate that the "cash collateral" so used will be disbursed first to the
payment of amounts for which Surety is or may become liable under the Bonds,
including the payment of bona fide claims for labor, services, and supplies
incurred in connection with Bonded Contracts; and second, subject to the
availability of periodic surplusages of remaining proceeds from Bonded
Contracts, to the payment of Overhead on Bonded Contracts which is ordinary and
necessary; provided, however, a stringent standard will be used when determining
what constitutes "ordinary and necessary" Overhead.
18. Termination of Automatic Stay. Indemnitors hereby acknowledge,
confirm, and agree that, in the event Surety elects to enforce any rights it may
have under and of the Surety Credit Documents with respect to the Existing
Pledged Collateral and the Collateral, or any other collateral provided as
security to secure Surety Loss, any such action will be deemed to be in the
nature of a recoupment, rather than a set-off, as contemplated by Section 553 of
the Bankruptcy Code. Notwithstanding the foregoing, should Surety deem it
advisable and elect to seek relief from the automatic stay imposed by Section
362 of the Bankruptcy Code, Indemnitors hereby covenant to the immediate lifting
of such automatic stay and will not contest any motion by Surety to lift such
stay upon a showing that: (i) the cost to fully perform the obligations and
services required under any Bonded Contract exceeds the remaining amounts
payable under such Bonded Contract; or (ii) the aggregate of the cost to fully
perform the obligations and services required under any and all Bonded Contracts
exceeds the aggregate of the remaining amounts payable under all Bonded
Contracts. Indemnitors stipulate that in the event that the cost to fully
perform the obligations and services required under a Bonded Contract exceeds
the remaining amounts payable under such Bonded Contract, then such Bonded
Contract is not necessary to an effective reorganization of Indemnitors within
the meaning of Section 362 of the Bankruptcy Code.
19. Contract Proceeds as Cash Collateral - Priority. Surety and
Indemnitors expressly agree that the proceeds arising from Bonded Contracts
constitute "cash collateral" as that term is
23
defined under Section 363 of the Bankruptcy Code. Surety and Indemnitors further
agree that Surety will have a claim to the proceeds arising from such Bonded
Contracts, and said claim will have priority over all expenses of the kind
specified or ordered pursuant to Sections 105, 326, 330, 331, 503(b), 503(c),
507(a), 507(b), 546(c), or 726 of the Bankruptcy Code, and will also have
priority over any other priority claims. Indemnitors further acknowledge that
this claim of Surety will at all times be senior to the rights of Indemnitors or
any Trustee in any case or proceeding in which any of Indemnitors becomes a
debtor or debtor-in-possession under the Bankruptcy Code.
20. One General Obligation - Default. Indemnitors will notify Surety
promptly if any of them becomes aware of the occurrence of any Event of Default
or of any fact, condition, or event that only with the giving of notice or
passage of time or both, could become an Event of Default, or of the failure of
Indemnitors to observe any of their respective undertakings hereunder or under
any of the Surety Credit Documents. It is distinctly understood and agreed that
all of the rights of Surety contained in this Agreement will likewise apply
insofar as applicable to any modification of or supplement to this Agreement and
to any other of the Surety Credit Documents. Any default under the terms of this
Agreement or any of the Surety Credit Documents will constitute, likewise, a
default by Indemnitors of every existing agreement with Surety, and any default
by Indemnitors of any other agreement with Surety will constitute a default of
this Agreement.
21. Indemnitors Agree to Become Party Defendants. In the event of legal
proceedings against Surety, the subject matter of which pertains to this
Agreement, the Bonds, or any of the Bonded Contracts, Surety may apply for a
court order making any or all of Indemnitors party defendants, and each such
Indemnitor consents to the granting of such application, including consent to
the jurisdiction of the court in which the application is made, and agrees to
become such a party defendant or third-party defendant and to allow judgment, in
the event of judgment against Surety, to be rendered also against each such
Indemnitor, jointly and severally, in like amount and in favor of Surety. The
foregoing will not adversely affect the joint and several liability of each
Indemnitor to Surety for any and all Surety Loss, including, but not limited to,
any Surety Loss incurred in connection with any litigation in which such
Indemnitor is not named a third-party defendant.
22. Indemnitors' Waiver of Notice; Rights of Surety. Except as set forth
in Section 33, upon any execution, continuation, modification, renewal,
enlargement, or amendment of any bond pursuant to the terms hereof or thereof,
Indemnitors waive notice of the execution, continuation, modification, renewal,
enlargement, or amendment of any Bond and of any fact, act, or information
concerning or affecting the rights or liabilities of Surety or Indemnitors
including, but not limited to, any acts giving rise to any Surety Loss under the
Bonds. Indemnitors hereby consent and agree that Surety may at any time, and
from time to time, without notice to or further consent from Indemnitors, either
with or without consideration, (i) surrender any property or other security of
any kind or nature whatsoever held by it or by any Person on its behalf or for
its account, securing any Surety; (ii) substitute for any collateral so held by
it or other collateral of like kind, or of any kind; (iii) modify the terms of
any of the Surety Credit Documents related thereto (other than this Agreement);
(iv) grant releases, compromises, and indulgences with respect to any of the
Surety Credit Documents to any Person now or hereafter liable thereunder or
hereunder; or (v) take or fail to take any action of any type whatsoever.
Notwithstanding the foregoing, nothing contained in the above clause (iii) will
limit Surety's ability to modify the terms of any of the Surety Credit
24
Documents (other than this Agreement) at any time (whether an Event of Default
has occurred or is continuing) to the extent necessary to keep Surety's security
interest in the Collateral properly perfected pursuant to Section 5. No such
action which Surety will take or fail to take in connection with the Surety
Credit Documents, or any one of them, or any security for the payment of Surety
or for the performance of any obligations or undertakings of Indemnitors, nor
any course of dealing with Indemnitors, Surety, or any other Person, will
release Indemnitors' obligations hereunder, affect this Agreement in any way, or
afford Indemnitors any recourse against Surety.
23. Indemnitors' Knowing Consent to Agreement. Each of Indemnitors
warrants that it is specifically and beneficially interested in obtaining future
Bonds or the renewal of any existing Bonds. Indemnitors acknowledge that the
execution of this Agreement and the undertaking of indemnity was not made upon
any representation by Surety concerning the responsibility of any of Indemnitors
or concerning the competence of Indemnitors to perform. Indemnitors agree to
make no claim against Surety for any oral representations, promises, or
statements made to any of them by Surety or any of its agents or brokers, or for
the failure of Surety to disclose facts or information to Indemnitors. This
Agreement has been negotiated by the parties and each party has had the benefit
of counsel.
24. Assignment. Surety, and only Surety, may assign or transfer, in whole
or in part, the Indebtedness and all or part of Surety's interest in the
Collateral. The transferees will have the same rights and powers with reference
to the Collateral as are hereby given to Surety, and upon such transfer, Surety
will be fully discharged from all claims with respect to any Collateral so
transferred, but will retain all rights and powers hereby given with respect to
any of the Collateral not so transferred. Indemnitors may not assign or
otherwise transfer their rights and duties under this Agreement without Surety's
written approval. In any event, the covenants, representations, warranties, and
agreements of Indemnitors set forth herein will be binding upon Indemnitors,
their successors and assigns.
25. Indemnitors' Duty to Deliver and Execute Papers and Other Instruments.
Indemnitors agree upon the request of Surety, to sign, execute, file, and/or
deliver to Surety all documents, reports, papers, pleadings, and/or instruments
reasonably required to obtain and/or confirm any of Surety's rights under this
Agreement or the Surety Credit Documents. During the term of this Agreement and
following the occurrence of any Event of Default, Indemnitors will furnish to
Surety upon its reasonable written request a statement of all deposits by source
and amount of all withdrawals by payee and amount and all beginning and ending
balances for all bank accounts maintained by any Indemnitor. Furthermore, Surety
will be allowed access to all of Indemnitors' business records during regular
business hours.
26. Indemnitors' Representation. Indemnitors will provide Surety on an
annual basis (and at such other intervals as Surety may reasonably require) with
a letter in which their respective chief financial officer, or equivalent
officer, represents that he/she has no knowledge of the existence of any
condition, event, or act which constitutes, or which with notice or the lapse of
time, or both, would reasonably be expected to constitute an Event of Default.
If Surety feels that any such letter is overdue or has not been timely provided,
Surety may give written notice of same to Indemnitors, and Indemnitors agree to
provide such letter within thirty (30) days of the date of such notice. Failure
of Indemnitors to timely provide any such letter (after such cure period) or the
presence of any materially incorrect statement on such letter will
25
constitute an Event of Default on the part of Indemnitors after an additional
fifteen (15) day written notice from Surety unless provided or otherwise secured
within such fifteen (15) day period. The chief financial officer (or equivalent
officer) who submits such letter will have no personal liability or
responsibility of any nature to Surety, including, but not limited to, with
respect to the contents of such letter or the failure of Indemnitors to timely
provide such letter.
27. Payment of Labor, Material, and Other Costs. Principal agrees to first
use any Bonded Contract Balances generated by Bonded Contracts to pay valid
labor, materials, and any other costs or expenses incurred when due in
connection with the performance of the Bonded Contracts. As long as no Event of
Default has occurred, unless otherwise restricted or regulated by state or local
laws, Bonded Contract Balances can be co-mingled with other funds. Surety
further acknowledges that absent the occurrence of an Event of Default and
demand by Surety, Principal's cash management system will not be affected or
changed by the terms of this Agreement.
28. Rights of Surety to Take Possession of the Work. Upon the occurrence
of any Event of Default, in addition to other remedies provided herein, Surety
is authorized and empowered, but is not obligated to take possession of the Work
under any Bonded Contract and at the expense of Indemnitor to complete or to
contract for the completion of the same, or to consent to the reletting of the
completion thereof by, or to take such other steps as in the discretion of
Surety may be advisable or necessary to obtain its release or to avoid Surety
Loss.
29. Rights of Surety to Perform Under the Bonded Contracts. Upon the
occurrence of any Event of Default, in addition to other remedies provided
therein, Surety is authorized and empowered, but is not obligated to take over
performance of the Work under any Bonded Contracts and at the expense of
Indemnitors to complete or to contract for the completion of the same, or to
consent to the reletting of the completion thereof by, or to take such other
steps as in the discretion of Surety may be advisable or necessary to obtain its
release or to avoid Surety Loss.
30. Right of Surety to Settle Claims. Surety will have the exclusive right
for itself and for Indemnitors to decide and determine in good faith and in a
reasonable manner whether any claim, demand, suit, or judgment on the Bonds will
be paid, settled, defended, or appealed. Any payment or determination made by
Surety that: (1) Surety was or might be liable therefor; and (2) such payments
were necessary or advisable to protect any of Surety's rights or to avoid or
lessen Surety's liability or alleged liability will be final, conclusive, and
binding upon Indemnitors; and any Surety Loss which may be sustained or incurred
will be paid by Indemnitors upon written demand by Surety. In the event of any
payment, settlement, compromise, or investigation, an itemized statement of
Surety Loss sworn to by an officer or authorized representative of Surety or
vouchers or other evidence of such Surety Loss will be prima facie evidence of
the fact and extent of the liability of Indemnitors to Surety in any claim or
suit and in any and all matters arising between and among Indemnitors and
Surety.
31. Authority of Surety to Make Loans to Indemnitors. In addition to the
other remedies provided herein, at the request of any Indemnitor, Surety is
authorized and empowered, but is not obligated to advance or loan money or
guarantee loans to any Indemnitors as Surety may see fit for the purpose of
completing performance of any of the Bonded Contracts, or for the
26
purpose of meeting operational expenses or paying other obligations, bonded or
unbonded. Such funds may be advanced or guaranteed at any time, whether before
or after default of such Indemnitor under the Bonded Contracts. Upon demand by
Surety, Indemnitors will be responsible to reimburse Surety for all funds
advanced, loaned, or guaranteed by Surety to any Indemnitor and all Surety Loss
incurred by Surety in relation thereto, notwithstanding the failure of such
Indemnitor to so use those funds. Indemnitors waive all notice of such advance,
loan, or guarantee, and acknowledge that whether to make any such advances,
loans, or guarantees will be made in the sole and absolute discretion of Surety.
32. Authority of Surety to Amend Bond. Surety will have the right, and is
hereby authorized and empowered, but not required: (a) to increase or decrease
the penalty or penalties of any Bonds, to change Obligees therein, to execute
any continuation, enlargements, modifications, and renewals thereof or
substitute therefor with the same or different conditions, provisions or
Obligees, and with the same, larger, or smaller penalties, it being agreed that
this Agreement will apply to and cover such new or changed Bonds or renewals
even though the consent of Surety may or does substantially increase the
liability of the Indemnitors; or (b) to take such steps as it may deem necessary
or proper to obtain release from liability under the Bonds; or (c) to assent to
any changes in any Bonded Contract, including but not limited to, any change in
the time for completion of any Bonded Contract and to payments or advances
thereunder; or (d) to assent to or take any assignments of any Bonded Contract.
Prior to an occurrence of an Event of Default, except as may be required by the
provisions of any Bond, Bonded Contract, or applicable statute, Surety may not
amend or otherwise modify any provision of any Bond except with the consent of
Principal or Integrated Electrical Services, Inc.
33. Rights and Remedies on Default. In addition to the rights and remedies
granted to it in this Agreement and in any other instrument or agreement
securing, evidencing, or relating to any of the Indebtedness, Surety will have
all the rights and remedies of a secured party under the UCC.
In the event of the refusal or failure of Indemnitors to exonerate Surety
as required under the Indemnity Agreement, Indemnitors agree upon written demand
to provide to Surety a reasonable amount of money designated by Surety and/or
other collateral decided upon by Surety. Such funds and/or other collateral will
be held by Surety as collateral in addition to the indemnity and other
collateral afforded by this Agreement, with the right to use such funds and/or
other collateral or any part thereof, at any time in performance, payment, or
compromise of any obligations or liability, claims, demands, judgments, damages,
fees, and disbursements or other expenses. Said deposit and/or provision of
money and/or other collateral designated by Surety will be required regardless
of whether any Reserve has been established by Surety. Without limiting the
generality of the foregoing, in the event Surety posts a Reserve, then
Indemnitors will deliver to Surety cash in an amount equal to the Reserve posted
in addition to the Collateral. Demand will be sufficient if sent by certified
mail, return receipt requested, to Indemnitors at the address or addresses given
herein or last known to Surety, whether or not actually received. Indemnitors
acknowledge that the failure of Indemnitors to deposit with Surety, immediately
upon demand, the sum demanded by Surety as collateral security will cause
irreparable harm to Surety for which Surety has no adequate remedy at law.
Indemnitors agree that Surety will be entitled to injunctive relief for specific
performance of the obligations of Indemnitors to deposit with Surety the sum
demanded as collateral security and hereby waives any claims or defenses to the
contrary. The deposit of collateral pursuant to this
27
Section 34 will not be deemed to cure any default under the Bonded Contract(s)
and Surety may, in its sole and absolute discretion, refuse to issue any bonds;
provided, however, the foregoing will not be deemed to alter certain of the
provisions under the definition of Event of Default that permit certain Events
of Default to be cured upon the deposit of cash collateral.
Without limiting the generality of the foregoing, upon any Event of
Default, Surety is entitled to require Indemnitors to deposit or cause to be
deposited, all checks, drafts, cash, and other remittances received in payment
upon any or all of the Bonded Contracts or other Collateral in a special
"lockbox" bank account at a financial institution designated by Surety, over
which account Surety alone has power of withdrawal. During the continuance of
any Event of Default, Surety may further instruct any Obligee on any Bond, on
behalf of Indemnitors and/or Surety, to pay said remittances directly to Surety.
The funds in said special bank account will be held by Surety as security for
all Indebtedness. Said proceeds will be deposited in precisely the form
received, except for the endorsement of Indemnitors where necessary to permit
collection, which endorsement Indemnitors agree to make and which Surety is
hereby irrevocably authorized to make on Indemnitors' behalf. Pending such
deposit, Indemnitors agree that they will not commingle any such checks, drafts,
cash, and other remittances with any of Indemnitors' funds or property, but will
hold them separate and apart therefrom and upon an express trust for Surety
until deposit thereof is made in the said special bank account. Subject to the
trust fund provisions set out in Section 10, Surety will apply, as Surety deems
appropriate, any and all of the collected funds on deposit in the said special
bank account against the Indebtedness, the order and method of such application
to be in the discretion of Surety. Indemnitors agree to execute any documents
and perform any acts necessary to assure that remittances described in this
paragraph are received by Surety as contemplated herein, including, but not
limited to, letters of direction to remit said funds to Surety as contemplated
herein.
After the occurrence of an Event of Default, Surety is entitled to
immediate possession of the Collateral and may dispose of all or any portion of
the Collateral pursuant to the provisions of Article 9 of the UCC and may
exercise from time to time any other rights and remedies available to it under
applicable law. Surety may require Indemnitors to assemble the Collateral and
make it available to Surety at a place to then be designated by Surety, which is
reasonably convenient to both parties.
Indemnitors hereby waive any right they may have under any constitution,
statute, or rule of law to notice and/or a hearing prior to seizure of the
Collateral. Surety will have no custodial or ministerial duties to perform with
regard to the Collateral except for its safekeeping; and by way of explanation
and not by way of limitation thereof, Surety will incur no liability for any
diminution in the value of the Collateral unless caused by its willful
misconduct; or its failure to notify any party hereto that the Collateral should
be so presented or surrendered.
34. Preservation of Surety's Rights. Surety will have every right and
remedy which a personal surety without compensation would have, including the
right to secure its discharge from the suretyship, and notwithstanding anything
contained herein to the contrary, the parties agree that with respect to all
funds due or to become due under the Bonded Contracts nothing herein will waive,
impair, or limit any right, power, or remedy of Surety under the Indemnity
Agreement, or at law or in equity, including, without limitation, Surety's right
of equitable subrogation, which right the parties hereby expressly recognize. No
failure on the part of Surety to exercise, and no delay in
28
exercising, any right, power, or remedy hereunder will operate as a waiver
thereof, nor will any single or partial exercise of any such right, power or
remedy by Surety, preclude any other or further exercise thereof, or the
exercise of any other right, power or remedy. All remedies hereunder are
cumulative and are not exclusive of any other remedies provided by law.
35. Authority of Surety to Elect Remedies. Each right, remedy, and power
of Surety provided in this Agreement, the Surety Credit Documents, or by law,
equity, or statute will be cumulative, and the exercise by Surety of any right,
remedy, or power will not preclude Surety's simultaneous or subsequent exercise
of any or all other rights, powers, or remedies. The failure or delay by Surety
to exercise any right, power, or remedy will not waive any right, power, or
remedy. Except as required herein, no notice or demand upon Surety by any
Indemnitor will limit or impair Surety's right to take any action under this
Agreement or to exercise any right, power, or remedy.
36. Validity of Agreement. Failure to execute, or defective execution, by
any party will not affect the validity of this Agreement as to any other party
executing the same and each other party will remain fully bound and liable
hereunder. Executions of any application or submission for any Bond by any
Indemnitor will not abrogate, waive, or diminish any rights of Surety under this
Agreement.
37. Waiver. Surety will not be deemed to have waived any of Surety's
rights hereunder or under any other agreement, instrument, or paper signed by
any Indemnitor unless such waiver be in writing and signed by Surety. No delay
or omission by Surety in exercising any right will operate as a waiver of such
right or any other right. A waiver on any one occasion will not be construed as
a bar to or waiver of any right or remedy on future occasions.
38. Notices. It is mutually agreed that any and all notices herein
provided for must be given in writing and will be deemed given if and when
delivered in person or duly deposited in the United States Mails, postage
prepaid for certified mail, return receipt requested or delivered to a
nationally overnight carrier, properly addressed to the party to whom given at
the address of such party shown in this Agreement, provided however, that any
party may specify any other post office address in the United States by giving
at least ten (10) days written notice thereof to the other party.
Surety: Federal Insurance Company
00 Xxxxxxxx Xxxx Xxxx
P.O. Box 1615
Xxxxxx, New Jersey 07061-1615
Attn.: Xxxxxx X. Xxxxxx
Xxxx Xxxxx
With a copy to: Xxxxxx & Herod
2200 First Union Tower
000 Xxxxxx Xxxxxx, Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attn.: Xxx X. Xxxxxx, Xx.
Xxxx Xxxx Xxxx XxXxx
29
Indemnitors: Integrated Electrical Services, Inc.
0000 Xxxx Xxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attn: Xxxx Xxxx
With a copy to: Xxxxxxx Xxxxx, L.P.P.
000 Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attn: Xxxxxxx X. Xxxxxx
39. Failure to Execute Additional Documents - No Effect. The failure of
Surety, Indemnitors, or any other party to execute documents referenced in this
Agreement as being "anticipated to be executed," "anticipate entering into," "to
be executed," or words of similar effect, will not affect the validity and
enforceability of this Agreement by and among the parties hereto. This Agreement
will be effective from the date of its execution until terminated in writing by
the parties hereto regardless of whether any other document is entered into or
executed by any Person.
40. Governing Law. This Agreement will be governed by and construed and
enforced in accordance with the laws of the State of Texas (without giving
effect to its conflict of laws principles). The parties hereto irrevocably
consent to the exclusive jurisdiction of the United States District Court or to
the extent not available because the jurisdictional pre-requisites are not met,
the Supreme Court of the State of New York, in each instance located in New York
County, New York, New York for the purpose of any litigation concerning this
Agreement. No party hereto will object to or contest New York County, New York,
New York as the proper venue for any action or proceeding to enforce the terms
hereof.
In the event of any Surety Loss or other Event of Default, Principal and
Indemnitors hereby authorize and empower any attorney of any court of record in
the United States or any of their territories or possessions, to appear for them
in any suit by Surety and to confess judgment against them for any sum or sums
of money up to the amount of any or all Bonds, with costs, interest, and
reasonable attorneys' fees; such judgment, however, to be satisfied upon the
payment of any and all such sums as may be found due by Principal and
Indemnitors to Surety under the terms of this Agreement. The authority to
confess judgment as set forth herein will not be exhausted by any one exercise
thereof, but may be exercised from time to time and more than one time until all
liability of Principal and Indemnitors to Surety will have been paid in full.
Demand will be sufficient if sent as required by Section 37 to Principal and
Indemnitors whether or not actually received.
41. Jury Waiver. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW WHICH
CANNOT BE WAIVED, EACH PARTY HERETO HEREBY WAIVES, AND COVENANTS THAT IT WILL
NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT, OR OTHERWISE), ANY RIGHT TO TRIAL
BY JURY IN ANY FORUM IN RESPECT OF ANY ISSUE, CLAIM, DEMAND, ACTION, OR CAUSE OF
ACTION ARISING OUT OF OR BASED UPON THIS AGREEMENT, ANY OTHER OF THE SURETY
CREDIT DOCUMENTS, OR THE SUBJECT MATTER HEREOF, IN EACH CASE WHETHER NOW
EXISTING OR HEREAFTER ARISING OR WHETHER IN CONTRACT OR TORT OR
30
OTHERWISE. EACH PARTY HERETO ACKNOWLEDGES THAT IT HAS BEEN INFORMED THAT THE
PROVISIONS OF THIS SECTION 41 CONSTITUTE A MATERIAL INDUCEMENT UPON WHICH THE
OTHER PARTIES HAVE RELIED, ARE RELYING, AND WILL RELY IN ENTERING INTO THIS
AGREEMENT. THE PARTIES HERETO MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS
SECTION 41 WITH ANY COURT A WRITTEN EVIDENCE OF THE CONSENT OF SUCH OTHER PARTY
TO THE WAIVER OF ITS RIGHTS TO TRIAL BY JURY.
42. Waiver by Indemnitors; No Marshaling of Assets. To the maximum extent
permitted by applicable laws, Indemnitors:
(a) Waive: (i) protest of all commercial paper at any time held by
Surety on which any Indemnitor is in any way liable; and (ii) notice (except as
otherwise required hereunder) and opportunity to be heard before exercise by
Surety of the remedies of self-help, setoff, or of other summary procedures
permitted by any applicable laws or by any agreement with any Indemnitor, and,
except where required hereby or by any applicable laws, notice of any other
action taken by Surety;
(b) release Surety, its officers, directors, attorneys, employees,
and agents from (i) any and all claims, causes of action, or liabilities of any
nature whatsoever, fixed or contingent, liquidated or non-liquidated, caused by
or related to any act of omission, negligence, or other violation of law or
breach of contract or other duty on the part of any of them, occurring up to the
date of this Agreement, whether known or unknown, and whether discovered or
reasonably capable of being discovered; and (ii) any and all claims, causes of
action, or liabilities of any nature whatsoever caused by or relating to any act
of omission, negligence, or other violation of law or breach of contract or
other duty on the part of any of them, except for willful misconduct;
(c) waive any defense arising by reason of, and agree that the
rights of Surety and the Indebtedness of Indemnitors will be absolute and
unconditional irrespective of: (i) any disability or other defense of any other
Person; (ii) the unenforceability or cessation from any cause whatsoever, other
than the indefeasible payment in full, of the Indebtedness; (iii) the
application by any of Indemnitors of the proceeds of any Collateral for purposes
other than the purposes represented by Indemnitors to Surety; (iv) any
modification of the Indebtedness in any form whatsoever, including without
limitation the renewal, extension, acceleration, or other changes in the time
for payment of Indebtedness, or other change in the terms of the Indebtedness or
any part thereof, including any increase or decrease of the rate of interest
thereon in accordance with this Agreement; (v) any right to deferral or
modification of Indemnitors' obligations hereunder by reason of any bankruptcy,
reorganization, arrangement, moratorium, or other debtor relief proceeding; and
(vi) any other circumstance that might otherwise constitute a defense available
to, or a discharge of, any other Person in respect to the Indebtedness;
(d) waive any right to enforce any remedy that Surety now has or may
hereafter have against any other Person, and waive any benefit of, or any right
to participate in, any security whatsoever now or hereafter held by Surety; and
(e) waive all claims, direct or indirect, absolute or contingent,
against any other borrower, guarantor, endorser, or surety arising from or
relating to this Agreement, any of
31
the Surety Credit Documents, and/or the Indebtedness. Without limiting the
foregoing, Indemnitors waive all rights of reimbursement, exoneration,
indemnification, and/or contribution from any other borrower, guarantor,
endorser, or surety under or relating to this Agreement, any of the Surety
Credit Documents, and/or the secured indebtedness and waives all rights of
subrogation to the claims of Surety which may otherwise arise from such payment.
Surety may proceed against any Collateral securing the Indebtedness and against
parties liable therefor in such order as it may elect, and neither Indemnitors
nor any surety or guarantor for any Indemnitor nor, to the extent allowable by
law, any creditor of any Indemnitor will be entitled to require Surety to
marshal assets. The benefit of any rule of law or equity to the contrary is
hereby expressly waived.
43. Entire Agreement. This Agreement and the Surety Credit Documents
represent the entire agreement between the parties concerning the subject matter
hereof, and all oral discussions and prior agreements are merged herein.
Provided, if there is a conflict between this Agreement and any other of the
Surety Credit Documents, the provision most favorable to Surety will control.
44. Security Agreement. This Agreement constitutes a security agreement to
Surety and also a financing statement, both in accordance with the provisions of
the Uniform Commercial Code of every jurisdiction wherein such Code is in
effect, but the filing or recording of this Agreement, or an abstract hereof or
financing statement will be solely at the option of Surety and the failure to do
so will not release or excuse any of the obligations of Indemnitor under this
Agreement. For the purpose of recording this Agreement, a photocopy acknowledged
before a Notary Public to be a true copy hereof will be regarded as an original.
45. Further Assurances. Indemnitors agree to do such further acts and
things, and to execute and deliver such additional conveyances, assignments,
agreements, and instruments, as Surety may at any time request in connection
with the administration and enforcement of this Agreement, and the other Surety
Credit Documents or any part thereof or in order better to assure and confirm
unto Surety its rights and remedies hereunder and thereunder.
46. Binding Agreement; Assignment. This Agreement, and the terms,
covenants, and conditions hereof, will be binding upon the parties hereto and
their respective successors and assigns, and will inure to the benefit of the
parties, and their respective successors and assigns, except that Indemnitors
will not be permitted to assign this Agreement or any interest herein.
47. Amendments, Miscellaneous. This Agreement may not be amended or
modified, except by a writing signed by or on behalf of the parties hereto. This
Agreement supersedes all prior agreements and proposals with respect to this
transaction whether written or oral, made by Surety or anyone acting with its
authorization. No modification of this Agreement will be valid unless made in
writing and signed by an authorized officer of Surety. This Agreement is not
assignable, and no party other than Principal and Indemnitors will be entitled
to rely on this Agreement.
48. Severability. Should any provision of this Agreement be invalid or
unenforceable for any reason, the remaining provisions hereof will remain in
full effect.
32
49. Time of Essence. Time is of the essence in this Agreement, and all
dates and time periods specified herein will be strictly observed, except that
Surety may permit specific deviations therefrom by its written consent.
50. Captions Not Controlling. Captions and headings have been included in
this Agreement for the convenience of the parties, and will not be construed as
affecting the content of the respective paragraphs.
51. Counterparts. This Agreement may be executed by the parties
independently in any number of counterparts, all of which together will
constitute but one and the same instrument which is valid and effective as if
all parties had executed the same counterpart.
52. Additional Principals and/or Indemnitors. Indemnitors and Principals
acknowledge this Agreement can be amended via rider executed by Integrated
Electrical Services, Inc. to add other Persons as Indemnitor and/or Principal to
this Agreement and Indemnitors and Principals waive any and all notice in
connection with the addition of additional Indemnitors and Principals and
further acknowledge the rights and obligations provided herein will apply to all
Indemnitors and Principals whenever made a party to this Agreement. Integrated
Electrical Services, Inc. has full right and authority to execute any and all
documents on behalf of any Principals and Indemnitors to be added to this
Agreement without requiring the separate signature of any such additional
Principal and Indemnitors.
53. Power of Attorney. Each Principal and Indemnitor hereby irrevocably
constitutes and appoints Integrated Electrical Services, Inc. (and all officers,
employees, or agents designated by Integrated Electrical Services, Inc.), with
full power of substitution, as such Principal's and/or Indemnitor's true and
lawful attorney-in-fact with full irrevocable power and authority in the place
and stead of such Principal and/or Indemnitor and in the name of such Principal
and/or Indemnitor or in its own name, from time to time in Integrated Electrical
Services, Inc.'s discretion, to take any and all appropriate action and to
execute and deliver any and all documents and instruments which may be necessary
or desirable to accomplish the purpose of this Agreement and to amend, modify,
or supplement this Agreement or other Surety Credit Documents in any manner.
Each Principal and Indemnitor hereby ratifies and agrees to be bound by all that
Integrated Electrical Services, Inc. will lawfully do or cause to be done by
virtue hereof.
54. Possible Future Modification. Any provisions of this Agreement may be
waived, amended, or modified pursuant to an agreement or agreements in writing
entered into by the Surety and Integrated Electrical Services, Inc.
33
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
date first above written.
SURETY:
FEDERAL INSURANCE COMPANY
By: /s/ XXXXXX X. XXXXXX
------------------------------------------
Its: Xxxxxx X. Xxxxxx, Assistant Secretary
-----------------------------------------
PRINCIPAL:
INTEGRATED ELECTRICAL SERVICES, INC.
By: /s/ XXXXXXX X. XXXXX
-------------------------------------------
Xxxxxxx X. Xxxxx,
-------------------------------------------
ACE/XXXXXX ELECTRIC, INC.
ALADDIN XXXX ELECTRIC & AIR, INC.
AMBER ELECTRIC, INC.
XXXXXXXX & XXXX CONSTRUCTION CO., INC.
ARC ELECTRIC, INCORPORATED
XXXXXXXXX ELECTRIC, INC.
BRINK ELECTRIC CONSTRUCTION CO.
XXXXXX ELECTRIC COMPANY, INC.
XXXXXX ELECTRICAL CONTRACTING, INC.
COMMERCIAL ELECTRICAL CONTRACTORS, INC.
CROSS STATE ELECTRIC, INC.
CYPRESS ELECTRICAL CONTRACTORS, INC.
XXXXXX ELECTRICAL CONTRACTORS, INC.
XXXXX ELECTRICAL CONSTRUCTORS, INC.
DKD ELECTRIC CO., INC.
ELECTRO-TECH, INC.
XXXXXX X. XXXXXX ELECTRICAL, INC.
FEDERAL COMMUNICATIONS GROUP, INC.
FLORIDA INDUSTRIAL ELECTRIC, INC.
XXXXXXXX XXXXXXXX ELECTRIC COMPANY
XXXXXX XXXXXXXX ELECTRIC CO., INC.
X.X. XXXXX, INC.
IES DECATUR, INC. (f/k/a Xxxx Electric Company, Inc.)
IES OKLAHOMA CITY, INC. (f/k/a Delco Electric, Inc.)
XXXXXX ELECTRIC, INC.
XXXX XXXXXXXXX, INCORPORATED
34
XXXXXXXX ELECTRIC, INC.
MID-STATES ELECTRIC COMPANY, INC.
XXXXXXXX ELECTRIC COMPANY, INC.
XXXXXX ELECTRICAL CONTRACTORS, INC.
XXXXXXX ELECTRIC COMPANY, INC.
NEW TECHNOLOGY ELECTRICAL CONTRACTORS,
INC.
PAN AMERICAN ELECTRIC COMPANY, INC.
PAN AMERICAN ELECTRIC, INC.
XXXXXX ELECTRIC COMPANY, INC.
PRIMENET, INC.
PRIMO ELECTRIC COMPANY
ROCKWELL ELECTRIC, INC.
XXXXXXX ELECTRIC COMPANY, INC.
RON'S ELECTRIC, INC.
TECH ELECTRIC CO., INC.
T&H ELECTRICAL CORPORATION
XXXXXX XXXX & COMPANY
VALENTINE ELECTRICAL, INC.
By: /s/ XXXXXXX X. XXXXX
------------------------------------------
Xxxxxxx X. Xxxxx
Chief Executive Officer
RIVIERA ELECTRIC, LLC
By: /s/ XXXX X. XXXXXXX
------------------------------------------
Xxxx Xxxxxxx
President
X. XXXX ELECTRIC LP
By: Xxxxx Xxxx Management LLC, its general
partner
By: /s/ XXXX X. XXXXXXX
--------------------------------------
Xxxx Xxxxxxx
Vice President
35
BEXAR ELECTRIC COMPANY, LTD.
By: BW/BEC Inc., its general partner
By: /s/ XXXX X. XXXXXXX
---------------------------------------
Xxxx Xxxxxxx
Vice President
XXXXXXXX ELECTRIC, LTD.
By: General Partner, Inc., its general partner
By: /s/ XXXX X. XXXXXXX
---------------------------------------
Xxxx Xxxxxxx
Vice President
XXXXXXX-XXXXXXXX ELECTRICAL
CONTRACTORS LP
By: Xxxxxxx-Xxxxxxxx Management LLC, its
general partner
By: /s/ XXXX X. XXXXXXX
---------------------------------------
Xxxx Xxxxxxx
Vice President
X.X. XXXX ELECTRICAL CONTRACTORS LP
By: X.X. Xxxx Management LLC, its general
partner
By: /s/ XXXX X. XXXXXXX
---------------------------------------
Xxxx Xxxxxxx
Vice President
XXXXX ELECTRIC LP (d/b/a Xxxxx Electrical Contractors)
By: Xxxxx Management LLC
By: /s/ XXXX X. XXXXXXX
---------------------------------------
Xxxx Xxxxxxx
Vice President
36
XXXX ELECTRIC LP
By: BW/BEC Inc., its general partner
By: /s/ XXXX X. XXXXXXX
---------------------------------------
Xxxx Xxxxxxx
Vice President
XXXXXXX SUMMIT ELECTRIC LP
By: Xxxxxxx Electric, Inc. and Summit Electric of Texas,
Inc., its general partners
By: /s/ XXXX X. XXXXXXX
---------------------------------------
Xxxx Xxxxxxx
Vice President
XXXXXX ELECTRIC LP
By: Xxxxxx Management LLC, its general partner
By: /s/ XXXX X. XXXXXXX
---------------------------------------
Xxxx Xxxxxxx
Vice President
INDEMNITORS:
INTEGRATED ELECTRICAL SERVICES, INC.
By: /s/ XXXXXXX X. XXXXX
-------------------------------------------
Xxxxxxx X. Xxxxx,
ACE/XXXXXX ELECTRIC, INC.
ALADDIN XXXX ELECTRIC & AIR, INC.
AMBER ELECTRIC, INC.
XXXXXXXX & XXXX CONSTRUCTION CO., INC.
ARC ELECTRIC, INCORPORATED
XXXXXXXXX ELECTRIC, INC.
BRINK ELECTRIC CONSTRUCTION CO.
XXXXXX ELECTRIC COMPANY, INC.
XXXXXX ELECTRICAL CONTRACTING, INC.
COMMERCIAL ELECTRICAL CONTRACTORS, INC.
CROSS STATE ELECTRIC, INC.
CYPRESS ELECTRICAL CONTRACTORS, INC.
37
XXXXXX ELECTRICAL CONTRACTORS, INC.
XXXXX ELECTRICAL CONSTRUCTORS, INC.
DKD ELECTRIC CO., INC.
ELECTRO-TECH, INC.
XXXXXX X. XXXXXX ELECTRICAL, INC.
FEDERAL COMMUNICATIONS GROUP, INC.
FLORIDA INDUSTRIAL ELECTRIC, INC.
XXXXXXXX XXXXXXXX ELECTRIC COMPANY
XXXXXX XXXXXXXX ELECTRIC CO., INC.
X.X. XXXXX, INC.
IES DECATUR, INC. (f/k/a Xxxx Electric Company, Inc.)
IES OKLAHOMA CITY, INC. (f/k/a Delco Electric, Inc.)
XXXXXX ELECTRIC, INC.
XXXX XXXXXXXXX, INCORPORATED
XXXXXXXX ELECTRIC, INC.
MID-STATES ELECTRIC COMPANY, INC.
XXXXXXXX ELECTRIC COMPANY, INC.
XXXXXX ELECTRICAL CONTRACTORS, INC.
XXXXXXX ELECTRIC COMPANY, INC.
NEW TECHNOLOGY ELECTRICAL CONTRACTORS,
INC.
PAN AMERICAN ELECTRIC COMPANY, INC.
PAN AMERICAN ELECTRIC, INC.
XXXXXX ELECTRIC COMPANY, INC.
PRIMENET, INC.
PRIMO ELECTRIC COMPANY
ROCKWELL ELECTRIC, INC.
XXXXXXX ELECTRIC COMPANY, INC.
RON'S ELECTRIC, INC.
TECH ELECTRIC CO., INC.
T&H ELECTRICAL CORPORATION
XXXXXX XXXX & COMPANY
VALENTINE ELECTRICAL, INC.
By: /s/ XXXXXXX X. XXXXX
-------------------------------------------
Xxxxxxx X. Xxxxx
Chief Executive Officer
RIVIERA ELECTRIC, LLC
By: /s/ XXXX X. XXXXXXX
-------------------------------------------
Xxxx Xxxxxxx
President
38
X. XXXX ELECTRIC LP
By: Xxxxx Xxxx Management LLC, its general
partner
By: /s/ XXXX X. XXXXXXX
------------------------------------------
Xxxx Xxxxxxx
Vice President
BEXAR ELECTRIC COMPANY, LTD.
By: BW/BEC Inc., its general partner
By: /s/ XXXX X. XXXXXXX
--------------------------------------
Xxxx Xxxxxxx
Vice President
XXXXXXXX ELECTRIC, LTD.
By: General Partner, Inc., its general partner
By: /s/ XXXX X. XXXXXXX
--------------------------------------
Xxxx Xxxxxxx
Vice President
XXXXXXX-XXXXXXXX ELECTRICAL
CONTRACTORS LP
By: Xxxxxxx-Xxxxxxxx Management LLC, its
general partner
By: /s/ XXXX X. XXXXXXX
--------------------------------------
Xxxx Xxxxxxx
Vice President
X.X. XXXX ELECTRICAL CONTRACTORS LP
By: X.X. Xxxx Management LLC, its general
partner
By: /s/ XXXX X. XXXXXXX
--------------------------------------
Xxxx Xxxxxxx
Vice President
39
XXXXX ELECTRIC LP (d/b/a Xxxxx Electrical Contractors)
By: Xxxxx Management LLC
By: /s/ XXXX X. XXXXXXX
--------------------------------------
Xxxx Xxxxxxx
Vice President
XXXX ELECTRIC LP
By: BW/BEC Inc., its general partner
By: /s/ XXXX X. XXXXXXX
--------------------------------------
Xxxx Xxxxxxx
Vice President
XXXXXXX SUMMIT ELECTRIC LP
By: Xxxxxxx Electric, Inc. and Summit Electric of Texas,
Inc., its general partners
By: /s/ XXXX X. XXXXXXX
--------------------------------------
Xxxx Xxxxxxx
Vice President
XXXXXX ELECTRIC LP
By: Xxxxxx Management LLC, its general partner
By: /s/ XXXX X. XXXXXXX
--------------------------------------
Xxxx Xxxxxxx
Vice President
00
XXXXXXXXX
XXXXXXXXX XXXXX XX XXXXX XX
XXXXXXXX/XXXXX EXECUTIVE TYPE OF FORMATION/ TAX I.D. TRADE NAME
PRINCIPAL OFFICE () ENTITY REGISTRATION NUMBER (PAST SIX MONTHS)
------------------------------------------------------------------------------------------------------------------------------------
Integrated Electrical 0000 Xxxx Xxxx Xxxxx, Xxxxx Xxxxxxxxxxx Xxxxxxxx 00-0000000 IES
Services, Inc. 000
Xxxxxxx, Xxxxx 00000
Ace/Xxxxxx Electric, Inc. 0000 Xxxx Xxxx Xxxxx Xxxxx Xxxxxxxxxxx Xxxxxxx 00-0000000 Ace Electric
(name to be changed to IES 500 Xxxxxxx, Xxxxx 00000 Xxxxxx Electrical
Valdosta, Inc.) Contractors
Aladdin Xxxx Electric & Air, 0000 00xx Xxxxxx Xxxx Xxxxxxxxxxx Xxxxxxx 00-0000000 None
Inc. Xxxxxxxx, Xxxxxxx 00000
Amber Electric, Inc. 000 Xxxxxxxxx Xxxxxx Ocoee, Corporation Florida 00-0000000 Xxxx
Xxxxxxx 00000
Xxxxxxxx & Xxxx Construction 0000 Xxxxxx Xxxxxx Corporation Delaware 00-0000000 None
Co., Inc. Xxxxxxxx, Xxxxx 00000
ARC Electric, Incorporated 000 Xxxxxxxx Xxxxx Xxxxx Xxxxxxxxxxx Xxxxxxxx 00-0000000 ARC Electric
105 Chesapeake, Virginia PrimeNet
23320
Xxxxxxxxx Electric, Inc. 00000 XX Xxxxxxx Xxxx, Corporation Delaware 00-0000000 None
Xxxxx 000 Xxxxxxxxx, Xxxxxx
00000
Bexar Electric Company, Ltd. 0000 XX 00 Xxxx Xxx Xxxxxxx Xxxxx 00-0000000 Bexar Electric
Xxxxxxx, Xxxxx 00000 Partnership Company Galbraith
Electric Bexar
Communications
X. Xxxx Electric LP (name to 0000 Xxxx Xxxx Xxxxx, Xxxxx Xxxxxxx Xxxxx 00-0000000 Xxxxx Xxxx
be changed to IES College 500 Xxxxxxx, Xxxxx 00000 Partnership Electric Xxxxxxx
Station Holding, Inc.) Systems
Brink Electric Construction Co. 0000 X. Xxxxx Xxxxx Xxxxx Xxxxxxxxxxx Xxxxx Xxxxxx 00-0000000 None
City, South Dakota 57702
Xxxxxx Electric Company, Inc. 000 Xxxxxxx Xxxxx Xxxxxxxx, Xxxxxxxxxxx Xxxxx Xxxxxxxx 00-0000000 None
North Carolina 27263-3117
Xxxxxx Electrical Contracting, 000 Xxxxx Xxxxxx Xxxx Corporation Delaware 00-0000000 None
Inc. XxXxxxxxxx, Xxxxxxxxxxxx
00000
EXHIBIT A
PRINCIPAL PLACE OF STATE OF
BUSINESS/CHIEF EXECUTIVE TYPE OF FORMATION/ TAX I.D. TRADE NAME
PRINCIPAL OFFICE () ENTITY REGISTRATION NUMBER (PAST SIX MONTHS)
------------------------------------------------------------------------------------------------------------------------------------
Commercial Electrical 000 Xxxxxxxx Xxxxxx Corporation Delaware 00-0000000 Commercial
Contractors, Inc. Worcester, Massachusetts Communications
01607 Advantage
Controls
Cross State Electric, Inc. 0000 Xxxxxxxx Xxxxxx Corporation California 00-0000000 None
Xxxxxx, Xxxxxxxxxx 00000-0000
Cypress Electrical 000 Xxxx Xxxxxx Xx. Rose, Corporation Delaware 00-0000000 None
Contractors, Inc. Louisiana 70087
Xxxxxx Electrical Contractors, 0000 XX 00xx Xxxxxx Xxxxx, Xxxxxxxxxxx Xxxxxxx 00-0000000 Xxxxxx Electrical
Inc. Florida 33166
Xxxxxx Electrical
of West Palm Beach
Xxxxxx Electrical
- Treasure Coast
East Coast
Electric
Xxxxxxx Electric
Xxxxxxx-Xxxxxx
Electric
Xxxxx Electrical Constructors, 000 X. Xxxx Xxxxxx Xxxxxxxxxxx Xxxxx Xxxxxxxx 00-0000000 Xxxxx
Inc. Greenville, South Carolina International, a
29601 division of Xxxxx
Electrical
Constructors, Inc.
Xxxxx Constructors
IES Oklahoma City, Inc. (f/k/a 0000 Xxxx Xxxx Xxxxx, Xxxxx Xxxxxxxxxxx Xxxxxxxx 00-0000000 None
Delco Electric, Inc.) 500 Xxxxxxx, Xxxxx 00000
DKD Electric Co., Inc. 0000 Xxxxx XX Xxxxxxxxxxx, Corporation New Mexico 00-0000000 DKD Electric Xx.
Xxx Xxxxxx 00000
Electro-Tech, Inc. 0000 Xxxxx Xxxxxx Xxxxx Corporation Nevada 00-0000000 Electro-Tech of
Xxxxxx, Xxxxxx 00000-0000 Nevada
Xxxxxx X. Xxxxxx Electrical, 0000 Xxxxxx Xxxxx Xxxx New Corporation Delaware 00-0000000 None
Inc. Xxxxxx, Xxxxxxxxx 00000
0
XXXXXXXXX XXXXX XX XXXXX XX
XXXXXXXX/XXXXX EXECUTIVE TYPE OF FORMATION/ TAX I.D. TRADE NAME
PRINCIPAL OFFICE () ENTITY REGISTRATION NUMBER (PAST SIX MONTHS)
------------------------------------------------------------------------------------------------------------------------------------
Federal Communications Group, 0000 Xxxx Xxxxxxxxxx Xxxxx Corporation Delaware 00-0000000 Apex
Inc. Xxxxx, Xxxxxxx 00000 Tele-Communications
Training Solutions
Florida Industrial Electric, 0000 Xxxxxx Xxxxx Xxxxxxxxx Corporation Florida 00-0000000 FIE
Inc. Xxxxxxx, Xxxxxxx 00000
IES Decatur, Inc. (f/k/a Xxxx 0000 Xxxx Xxxx Xxxxx, Xxxxx Xxxxxxxxxxx Xxxxxxxx 00-0000000 None
Electric Company, Inc.) 500 Xxxxxxx, Xxxxx 00000
Xxxxxxxx Xxxxxxxx Electric 000 Xxxx Xxxx Xxxxxx Road, Corporation Arizona 00-0000000 Xxxxxxxx Xxxxxxxx
Company Suite 1 Phoenix, Arizona Electric
85027
Xxxxxxxx Electric, Ltd. 0000 0xx Xxxxxx Xxxxx Xxxxxxx Xxxxxxx 00-0000000 None
Birmingham, Alabama Partnership
35233-2902
Xxxxxxx-Xxxxxxxx Electrical 00000 Xxxx Xxxxxx Xxxxxxxx, Limited Texas 00-0000000 Houston Stafford
Contractors LP Texas 77477 Partnership Electric
HSE Electrical
Contractors
HSE Alarm Systems
HSE Special
Systems
Xxxxxx-Xxxxxxxx
Electric
Copious
Technologies
HSE Electrical
Services
Xxxxxx Xxxxxxxx Electric Co., 0000 Xxxxxx Xxxx Xxxxxxxxx, Corporation Delaware 00-0000000 None
Inc. Xxxxx Xxxxxxxx 00000
X.X. Xxxxx, Inc. 0000 Xxxxx Xxxxxx Xxxxxxxxxxx Xxxxx Xxxxxxxx 00-0000000 None
Xxxxxxxxxx, Xxxxx Xxxxxxxx
00000
0
XXXXXXXXX XXXXX XX XXXXX XX
XXXXXXXX/XXXXX EXECUTIVE TYPE OF FORMATION/ TAX I.D. TRADE NAME
PRINCIPAL OFFICE () ENTITY REGISTRATION NUMBER (PAST SIX MONTHS)
------------------------------------------------------------------------------------------------------------------------------------
X.X. Xxxx Electrical 00000 Xxxxx Xxxx, Xxxxx Xxxxxxx Xxxxx 00-0000000 Xxxx
Electric Contractors LP J-1 Xxxxxxx, Xxxxx 00000 Partnership
SecurePro Alarm
Systems
IES Multifamily
Resources
Xxxxxx Electric, Inc. 000 Xxxxx Xxxxxxx Xxxxxx Corporation Nebraska 00-0000000 None
Xxxxxxxx, Xxxxxxxx 00000
Xxxx Xxxxxxxxx, Incorporated 0000 Xxxxxxxxxx Xxxx Xxxxx Xxxxxxxxxxx Xxxxxxxx 00-0000000 Xxxx Xxxxxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Xxxxxxxx Electric , Inc. 000 Xxxx 0xx Xxxxxx Pella, Corporation Delaware 00-0000000 Xxxx
Xxxx 00000
Mid-States Electric Company, 000 Xxxxx Xxxxxxx Xxxxx Corporation Delaware 00-0000000 None
Inc. Xxxxxxx, Xxxxxxxxx 00000
Xxxxx Electric LP 0000 Xxxxxx Xxxx Xxxx Xxxxxxx Xxxxx 00-0000000 Xxxxx Electrical
Xxxxxx, Xxxxx 00000 Partnership Contractors
Xxxxxxxx Electric Company, Inc. 0000 Xxxxx 000xx Xxxxxx Corporation Arizona 00-0000000 None
Xxxxxxxx, Xxxxxxx 00000-0000
Xxxxxx Electrical Contractors, 2250 Aviation Drive Corporation Delaware 00-0000000 None
Inc. Xxxxxxxx, Xxxxxx 00000
Xxxx Electric LP 0000 Xxxxxxx Xxxx Xxxxxxxx Xxxxxxx Xxxxx 00-0000000 None
2 Xxxxx Xxxx, Xxxxx 00000 Partnership
Xxxxxxx Electric Company, Inc. 0000 Xxxxxxxxxx Xxxxxx Corporation Delaware 00-0000000 None
Xxxxxxx, Xxxxxxxx 00000
0
XXXXXXXXX XXXXX XX XXXXX XX
XXXXXXXX/XXXXX EXECUTIVE TYPE OF FORMATION/ TAX I.D. TRADE NAME
PRINCIPAL OFFICE () ENTITY REGISTRATION NUMBER (PAST SIX MONTHS)
------------------------------------------------------------------------------------------------------------------------------------
New Technology Electrical 00000 XX Xxxxxxx Xxxx Xxxxx Xxxxxxxxxxx Xxxxxxxx 00-0000000 New Tech Electric
Contractors, Inc. 400 Xxxxxxxxx, Xxxxxx
00000-0000 New Tech Services
Data Tech
Communications
Xxxxxxxxx
Electric-Oregon
Xxxxxxxxx
Datacomm, Inc.
Pan American Electric Company, 0000 Xxxx Xxxxxx Xxxxxxxxx Corporation New Mexico 00-0000000 None
Inc. Xxxxxxxxx, Xxxxxxxxx 00000
Pan American Electric, Inc. 1300 Fort Xxxxxx oulevard Corporation Tennessee 00-0000000 None
Xxxxxxxxx, Xxxxxxxxx 00000
Xxxxxx Electric Company, Inc. 0000 Xxxxxxxx Xxxxxxxx Corporation Delaware 00-0000000 Xxxxxx Electric
Xxxxxxxx, Xxxxxxxx 00000
Xxxxx Electric
Xxxxx Electric
T&O Controls
Xxxxxxx Summit Electric LP 0000 Xxxxx Xxxxxxxx Xxxxxxx Xxxxx 00-0000000 Xxxxxxx Summit
Xxxxxxx, Xxxxx 00000 Partnership Electric
PrimeNet, Inc. 000 Xxxxxx Xxxxxx XX Xxxx Corporation Delaware 00-0000000 None
Xxxxxx, Xxxxxxxx 00000
Primo Electric Company 000 Xxxxxx Xxxxxx XX Xxxx Corporation Delaware 00-0000000 B&D Electric, Inc.
Xxxxxx, Xxxxxxxx 00000
PrimeNet
Xxxxxx Electric LP 0000 Xxxxxx Xxxx Xxxx Xxxxxxx Xxxxx 00-0000000 Xxxxxx Electrical
Xxxxxx, Xxxxx 00000 Partnership Contractors
Riviera Electric, LLC 5001 South Zuni Littleton, Limited Delaware 00-0000000 Riviera Electric
Colorado 80120 Liability
Company
Rockwell Electric, Inc. 000 X. Xxxxxxx Xxx., Xxxxx Xxxxxxxxxxx Xxxxxxxx 00-0000000 IES So Cal
000 Xxxxxxxxx, Xxxxxxxxxx
00000 DKD Electric
0
XXXXXXXXX XXXXX XX XXXXX XX
XXXXXXXX/XXXXX EXECUTIVE TYPE OF FORMATION/ TAX I.D. TRADE NAME
PRINCIPAL OFFICE () ENTITY REGISTRATION NUMBER (PAST SIX MONTHS)
------------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Electric Company, Inc. 0000 Xxxxx Xxxxxx Everett, Corporation Washington 00-0000000 Xxxx
Xxxxxxxxxx 00000
Ron's Electric, Inc. 0000 Xxxxxx Xxxxxx Grand Corporation Delaware 00-0000000 XXX-Xxxxx Xxxxxx
Xxxxx, Xxxxx Xxxxxx 00000
Tech Electric Co., Inc. 0000 Xxxx Xxxxx Xxxx, Xxxxx Xxxxxxxxxxx Xxxxxxxx 00-0000000 Tech Datacom
109 Raleigh, North Carolina Systems
27617
T&H Electrical Corporation 0000 Xxxxxxx 000 Xxxxx Corporation Delaware 00-0000000 None
Xxxxxx, Xxxxx Xxxxxxxx 00000
Xxxxxx Xxxx & Company 10152 International Blvd. Corporation Ohio 00-0000000 None
Xxxxxxxxxx, Xxxx 00000
Valentine Electrical, Inc. 000 Xxxxx Xxxxxxxx Xxxxx Corporation Delaware 00-0000000 Valentine
Xxxxxxx, Xxxxxxxx 00000 Communications
6
INDEMNITORS
PRINCIPAL PLACE OF
BUSINESS/CHIEF EXECUTIVE
OFFICE TYPE OF STATE OF FORMATION/ TAX I.D. TRADE NAME
INDEMNITOR (SIX MONTHS AND CURRENT) ENTITY REGISTRATION NUMBER (PAST SIX MONTHS)
----------------------------------------------------------------------------------------------------------------------------------
Integrated Electrical 0000 Xxxx Xxxx Xxxxx, Xxxxx Xxxxxxxxxxx Xxxxxxxx 00-0000000 IES
Services, Inc. 000
Xxxxxxx, Xxxxx 00000
Ace/Xxxxxx Electric, Inc. 0000 Xxxx Xxxx Xxxxx, Xxxxx Xxxxxxxxxxx Xxxxxxx 00-0000000 Ace Electric
(name to be changed to IES 500
Valdosta, Inc.) Xxxxxxx, Xxxxx 00000 Xxxxxx Electrical
Contractors
Aladdin Xxxx Electric & Air, 0000 00xx Xxxxxx Xxxx Xxxxxxxxxxx Xxxxxxx 00-0000000 None
Inc. Xxxxxxxx, Xxxxxxx 00000
Amber Electric, Inc. 000 Xxxxxxxxx Xxxxxx Corporation Florida 00-0000000 None
Xxxxx, Xxxxxxx 00000
Xxxxxxxx & Xxxx Construction 0000 Xxxxxx Xxxxxx Corporation Delaware 00-0000000 None
Co., Inc. Xxxxxxxx, Xxxxx 00000
ARC Electric, Incorporated 000 Xxxxxxxx Xxxxx Corporation Delaware 00-0000000 ARC Electric
Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000 PrimeNet
Xxxxxxxxx Electric, Inc. 00000 XX Xxxxxxx Xxxx, Xxxxx Xxxxxxxxxxx Xxxxxxxx 00-0000000 None
400
Xxxxxxxxx, Xxxxxx 00000
Bexar Electric Company, Ltd. 0000 XX 00 Xxxx Xxxxxxx Xxxxx 00-0000000 Bexar Electric
Xxx Xxxxxxx, Xxxxx 00000 Partnership Company
Galbraith Electric
Bexar
Communications
X. Xxxx Electric LP (name to 0000 Xxxx Xxxx Xxxxx, Xxxxx Xxxxxxx Xxxxx 00-0000000 Xxxxx Xxxx
be changed to IES College 500 Partnership Electric
Station Holding, Inc.) Xxxxxxx, Xxxxx 00000
Xxxxxxx Systems
Brink Electric Construction 0000 X. Xxxxx Xxxxx Xxxxxxxxxxx Xxxxx Xxxxxx 00-0000000 None
Co. Xxxxx Xxxx, Xxxxx Xxxxxx 00000
Xxxxxx Electric Company, Inc. 000 Xxxxxxx Xxxxx Xxxxxxxxxxx Xxxxx Xxxxxxxx 00-0000000 None
Xxxxxxxx, Xxxxx Xxxxxxxx
00000-0000
EXHIBIT B
PRINCIPAL PLACE OF
BUSINESS/CHIEF EXECUTIVE
OFFICE TYPE OF STATE OF FORMATION/ TAX I.D. TRADE NAME
INDEMNITOR (SIX MONTHS AND CURRENT) ENTITY REGISTRATION NUMBER (PAST SIX MONTHS)
----------------------------------------------------------------------------------------------------------------------------------
Xxxxxx Electrical 000 Xxxxx Xxxxxx Corporation Delaware 00-0000000 None
Contracting, Inc. East XxXxxxxxxx, Xxxxxxxxxxxx
00000
Commercial Electrical 000 Xxxxxxxx Xxxxxx Corporation Delaware 00-0000000 Commercial
Contractors, Inc. Xxxxxxxxx, Xxxxxxxxxxxxx 00000 Communications
Advantage Controls
Cross State Electric, Inc. 0000 Xxxxxxxx Xxxxxx Corporation California 00-0000000 None
Xxxxxx, Xxxxxxxxxx 00000-0000
Cypress Electrical 000 Xxxx Xxxxxx Corporation Delaware 00-0000000 None
Contractors, Inc. Xx. Xxxx, Xxxxxxxxx 00000
Xxxxxx Electrical 0000 XX 00xx Xxxxxx Corporation Florida 00-0000000 Xxxxxx Electrical
Contractors, Inc. Xxxxx, Xxxxxxx 00000
Xxxxxx Electrical
of West Palm Beach
Xxxxxx Electrical
- Treasure Coast
East Coast
Electric
Xxxxxxx Electric
Xxxxxxx-Xxxxxx
Electric
Xxxxx Electrical 000 X. Xxxx Xxxxxx Xxxxxxxxxxx Xxxxx Xxxxxxxx 00-0000000 Xxxxx
Constructors, Inc. Greenville, South Carolina International, a
29601 division of Xxxxx
Electrical
Constructors, Inc.
Xxxxx Constructors
IES Oklahoma City, Inc. 0000 Xxxx Xxxx Xxxxx, Xxxxx Xxxxxxxxxxx Xxxxxxxx 00-0000000 None
(f/k/a Delco Electric, Inc.) 500
Xxxxxxx, Xxxxx 00000
DKD Electric Co., Inc. 0000 Xxxxx XX Corporation New Mexico 00-0000000 DKD Electric Co.
Xxxxxxxxxxx, Xxx Xxxxxx 00000
0
XXXXXXXXX XXXXX XX
XXXXXXXX/XXXXX EXECUTIVE
OFFICE TYPE OF STATE OF FORMATION/ TAX I.D. TRADE NAME
INDEMNITOR (SIX MONTHS AND CURRENT) ENTITY REGISTRATION NUMBER (PAST SIX MONTHS)
----------------------------------------------------------------------------------------------------------------------------------
Electro-Tech, Inc. 0000 Xxxxx Xxxxxx Xxxxx Corporation Nevada 00-0000000 Electro-Tech of
Xxxxxx, Xxxxxx 00000-0000 Nevada
Xxxxxx X. Xxxxxx Electrical, 0000 Xxxxxx Xxxxx Xxxx Corporation Delaware 00-0000000 None
Inc. New Xxxxxx, Xxxxxxxxx 00000
Federal Communications Group, 0000 Xxxx Xxxxxxxxxx Xxxxx Corporation Delaware 00-0000000 Apex
Inc. Xxxxx, Xxxxxxx 00000 Tele-Communications
Training Solutions
Florida Industrial Electric, 0000 Xxxxxx Xxxxx Xxxxxxxxxxx Xxxxxxx 00-0000000 FIE
Inc. Xxxxxxxxx Xxxxxxx, Xxxxxxx
00000
IES Decatur, Inc. (f/k/a Xxxx 0000 Xxxx Xxxx Xxxxx, Xxxxx Xxxxxxxxxxx Xxxxxxxx 00-0000000 None
Electric Company, Inc.) 500
Xxxxxxx, Xxxxx 00000
Xxxxxxxx Xxxxxxxx Electric 000 Xxxx Xxxx Xxxxxx Road, Corporation Arizona 00-0000000 Xxxxxxxx Xxxxxxxx
Company Suite 1 Electric
Xxxxxxx, Xxxxxxx 00000
Xxxxxxxx Electric, Ltd. 0000 0xx Xxxxxx Xxxxx Xxxxxxx Xxxxxxx 00-0000000 None
Xxxxxxxxxx, Xxxxxxx 00000-0000 Partnership
Xxxxxxx-Xxxxxxxx Electrical 00000 Xxxx Xxxxxx Limited Texas 00-0000000 Houston Xxxxxxxx
Contractors LP Xxxxxxxx, Xxxxx 00000 Partnership Electric
HSE Electrical
Contractors
HSE Alarm Systems
HSE Special
Systems
Xxxxxx-Xxxxxxxx
Electric
Copius
Technologies
HSE Electrical
Services
Xxxxxx Xxxxxxxx Electric Co., 0000 Xxxxxx Xxxx Corporation Delaware 00-0000000 None
Inc. Xxxxxxxxx, Xxxxx Xxxxxxxx
00000
0
XXXXXXXXX XXXXX XX
XXXXXXXX/XXXXX EXECUTIVE
OFFICE TYPE OF STATE OF FORMATION/ TAX I.D. TRADE NAME
INDEMNITOR (SIX MONTHS AND CURRENT) ENTITY REGISTRATION NUMBER (PAST SIX MONTHS)
----------------------------------------------------------------------------------------------------------------------------------
X.X. Xxxxx, Inc. 0000 Xxxxx Xxxxxx Corporation South Carolina 00-0000000 None
Xxxxxxxxxx, Xxxxx Xxxxxxxx
00000
X.X. Xxxx Electrical 00000 Xxxxxx Xxxx, Xxxxx X-0 Xxxxxxx Xxxxx 00-0000000 Xxxx Electric
Contractors LP Xxxxxxxx, Xxxxx 00000 Partnership
SecurePro Alarm
Systems
IES Multifamily
Resources
Xxxxxx Electric, Inc. 000 Xxxxx Xxxxxxx Xxxxxx Corporation Nebraska 00-0000000 None
Xxxxxxxx, Xxxxxxxx 00000
Xxxx Xxxxxxxxx, Incorporated 0000 Xxxxxxxxxx Xxxx Xxxxx Xxxxxxxxxxx Xxxxxxxx 00-0000000 Xxxx Xxxxxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Xxxxxxxx Electric, Inc. 000 Xxxx 0xx Xxxxxx Corporation Delaware 00-0000000 None
Xxxxx, Xxxx 00000
Mid-States Electric Company, 000 Xxxxx Xxxxxxx Xxxxx Corporation Delaware 00-0000000 None
Inc. Xxxxxxx, Xxxxxxxxx 00000
Xxxxx Electric LP 0000 Xxxxxx Xxxx Xxxx Xxxxxxx Xxxxx 00-0000000 Xxxxx Electrical
Xxxxxx, Xxxxx 00000 Partnership Contractors
Xxxxxxxx Electric Company, 0000 Xxxxx 000xx Xxxxxx Corporation Arizona 00-0000000 None
Inc. Xxxxxxxx, Xxxxxxx 00000-0000
Xxxxxx Electrical 0000 Xxxxxxxx Xxxxx Corporation Delaware 00-0000000 None
Contractors, Inc. Xxxxxxxx, Xxxxxx 00000
Xxxx Electric LP 0000 Xxxxxxx Xxxx Xxxxxxx Xxxxx 00-0000000 None
Building 0 Xxxxxxxxxxx
Xxxxx Xxxx, Xxxxx 00000
Xxxxxxx Electric Company, Inc. 0000 Xxxxxxxxxx Xxxxxx Corporation Delaware 00-0000000 None
Xxxxxxx, Xxxxxxxx 00000
0
XXXXXXXXX XXXXX XX
XXXXXXXX/XXXXX EXECUTIVE
OFFICE TYPE OF STATE OF FORMATION/ TAX I.D. TRADE NAME
INDEMNITOR (SIX MONTHS AND CURRENT) ENTITY REGISTRATION NUMBER (PAST SIX MONTHS)
----------------------------------------------------------------------------------------------------------------------------------
New Technology Electrical 00000 XX Xxxxxxx Xxxx Corporation Delaware 00-0000000 New Tech Electric
Contractors, Inc. Xxxxx 000
Xxxxxxxxx, Xxxxxx 00000-0000 New Tech Services
Data Tech
Communications
Xxxxxxxxx
Electric-Oregon
Xxxxxxxxx
Datacomm, Inc.
Pan American Electric 0000 Xxxx Xxxxxx Xxxxxxxxx Corporation New Mexico 00-0000000 None
Company, Inc. Xxxxxxxxx, Xxxxxxxxx 00000
Pan American Electric, Inc. 0000 Xxxx Xxxxxx Xxxxxxxxx Xxxxxxxxxxx Xxxxxxxxx 00-0000000 None
Xxxxxxxxx, Xxxxxxxxx 00000
Xxxxxx Electric Company, Inc. 0000 Xxxxxxxx Xxxxxxxx Corporation Delaware 00-0000000 Xxxxxx Electric
Xxxxxxxx, Xxxxxxxx 00000
Xxxxx Electric
Xxxxx Electric
T&O Controls
Xxxxxxx Summit Electric LP 0000 Xxxxx Xxxxxxxx Xxxxxxx Xxxxx 00-0000000 Xxxxxxx Summit
Xxxxxxx, Xxxxx 00000 Partnership Electric
PrimeNet, Inc. 000 Xxxxxx Xxxxxx XX Corporation Delaware 00-0000000 None
Xxxx Xxxxxx, Xxxxxxxx 00000
Primo Electric Company 000 Xxxxxx Xxxxxx XX Corporation Delaware 00-0000000 B&D Electric, Inc.
Xxxx Xxxxxx, Xxxxxxxx 00000
PrimeNet
Xxxxxx Electric LP 0000 Xxxxxx Xxxx Xxxx Xxxxxxx Xxxxx 00-0000000 Xxxxxx Electrical
Xxxxxx, Xxxxx 00000 Partnership Contractors
Riviera Electric, LLC 5001 South Zuni Limited Delaware 00-0000000 Riviera Electric
Xxxxxxxxx, Xxxxxxxx 00000 Liability
Company
Rockwell Electric, Inc. 000 X. Xxxxxxx Xxx., Corporation Delaware 00-0000000 IES So Cal
Xxxxx 000
Xxxxxxxxx, Xxxxxxxxxx 00000 DKD Electric
Xxxxxxx Electric Company, Inc. 0000 Xxxxx Xxxxxx Corporation Washington 00-0000000 None
Xxxxxxx, Xxxxxxxxxx 00000
0
XXXXXXXXX XXXXX XX
XXXXXXXX/XXXXX EXECUTIVE
OFFICE TYPE OF STATE OF FORMATION/ TAX I.D. TRADE NAME
INDEMNITOR (SIX MONTHS AND CURRENT) ENTITY REGISTRATION NUMBER (PAST SIX MONTHS)
----------------------------------------------------------------------------------------------------------------------------------
Ron's Electric, Inc. 0000 Xxxxxx Xxxxxx Corporation Delaware 00-0000000 IES-North Plains
Xxxxx Xxxxx, Xxxxx Xxxxxx
00000
Tech Electric Co., Inc. 0000 Xxxx Xxxxx Xxxx, Xxxxx Xxxxxxxxxxx Xxxxxxxx 00-0000000 Tech Datacom
000 Xxxxxxx
Xxxxxxx, Xxxxx Xxxxxxxx 00000
T&H Electrical Corporation 0000 Xxxxxxx 000 Xxxxx Corporation Delaware 00-0000000 None
Xxxxxx, Xxxxx Xxxxxxxx 00000
Xxxxxx Xxxx & Company 10152 International Blvd. Corporation Ohio 00-0000000 None
Xxxxxxxxxx, Xxxx 00000
Valentine Electrical, Inc. 000 Xxxxx Xxxxxxxx Xxxxx Corporation Delaware 00-0000000 Valentine
Xxxxxxx, Xxxxxxxx 00000 Communications
6
ADDITIONAL PERMITTED LIENS
EXHIBIT C
