EXHIBIT 10.36
[LETTERHEAD OF RELIANCE SURETY COMPANY APPEARS HERE]
CONTINUING AGREEMENT OF INDEMNITY-CONTRACTOR'S FORM
THIS AGREEMENT is made by the Undersigned for the continuing benefit of
RELIANCE INSURANCE COMPANY, UNITED PACIFIC INSURANCE COMPANY, RELIANCE NATIONAL
INDEMNITY COMPANY and/or RELIANCE SURETY COMPANY (collectively the Surety) for
the purpose of saving each and all of them harmless and indemnifying each and
all of them from all loss and expense in connection with any Bonds executed on
behalf of any one or more of the following persons, firms or corporations:
ATG Inc.; Xxxxxx X. Xxxx; Xxxxx X. Xxxx
(Contractor).
WITNESSETH,
WHEREAS, the Contractor, individually or jointly with others, may desire or be
required from time to time to give certain bonds, undertakings, or instruments
of guarantee (all of which will hereinafter be included within the term "Bond"
or "Bonds"), and
WHEREAS, upon the express condition that this instrument be executed, the Surety
has executed or procured the execution of, and may hereafter execute or procure
the execution of such Bonds.
NOW, THEREFORE, in consideration of the execution of any such Bond or Bonds and
as an inducement to such execution, we, the Undersigned, agree and bind
ourselves, our heirs, executors, administrators, successors and assigns, jointly
and severally, as follows:
FIRST: To pay all premiums on said Bonds computed in accordance with the
Surety's regular manual of rates in effect on the date said Bonds are executed.
SECOND: To indemnify, and keep indemnified, and hold and save harmless the
Surety against all demands, claims, loss, costs, damages, expenses and
attorneys' fees whatever, and any and all liability therefor sustained or
incurred by the Surety by reason of executing or procuring the execution of any
said Bond or Bonds, or any other Bonds, which may be already or hereafter
executed on behalf of the Contractor, or renewal or continuation thereof; or
sustained or incurred by reason of making any investigation on account thereof,
prosecuting or defending any action brought in connection therewith, obtaining a
release therefrom, recovering or attempting to recover any salvage in connection
therewith or enforcing by litigation or otherwise any of the agreements herein
contained. Payment of amounts due Surety hereunder together with legal
interest shall be payable upon demand.
THIRD: To furnish money to the Contractor or to the Surety as needed for the
prompt payment of labor, materials, and any other costs or expenses in
connection with the performance of contracts when and as requested to do so by
the Surety.
FOURTH: To assign, transfer and convey, and each of the Undersigned does by
these presents assign, transfer and convey to the Surety, as of the date of
execution of said Bond or Bonds, as collateral security for the full performance
of the covenants and agreements herein contained and the payment of any other
indebtedness or liability of the Undersigned to the Surety, whether heretofore
or hereafter incurred, the following:
(a) All right title and interest of the Undersigned in and to all
machinery, equipment plant tools and materials which are, on the date
of execution of any such Bond or Bonds, or may thereafter be, about or
upon the site of the work to be performed under the contract referred
to in and guaranteed by such Bond, or elsewhere for the purpose
thereof, including as well materials purchased for or chargeable to
said contract which may be in process of construction or in storage
elsewhere or in transportation to said site;
(b) All rights, actions, causes of action, claims and demands of the
undersigned in, or arising from or out of, said contract or any
extensions, modifications, changes or alterations thereof or additions
thereto;
(c) All rights, actions, causes of action, claims and demands
whatsoever which the Undersigned or any of them may have or acquire in
any subcontract in connection with said contract and against any
subcontractor or any person, firm or corporation furnishing or agreeing
to furnish or supply labor, materials, supplies, machinery, tools or
other equipment in connection with or on account of said contract and
against any surety or sureties of any such materialmen, subcontractor,
laborer or other person, firm or corporation;
(d) All right title and interest to all monies due or to become due to
the undersigned arising out of or in any way relating to said contract
including, but not limited to progress payments, deferred payments,
retained percentages, compensation for extra work and claims and the
proceeds thereof that at the time of abandonment, forfeiture or breach
of said contract or such Bond or Bonds or of the terms of this
Agreement or at the time of any advance, payment or guaranty by the
Surety for the purpose of avoiding such abandonment, forfeiture or
breach, may be due or may thereafter become due under said contract to
or on behalf of the Undersigned, together with any and all sums due or
which may thereafter become due under or on all other contracts, bonded
or unbonded, in which any or all of the Undersigned have an
interest.
FIFTH: Each of the Undersigned does hereby irrevocably nominate and appoint any
officer of the Surety the true and lawful attorney-in-fact of the Undersigned,
with full right and authority, in the event the Contractor fails or is unable to
complete the work called for by the contract guaranteed by any Bond or in the
event of the breach of any provision of this Agreement to execute on behalf of,
and sign the names of each of the Undersigned to, any voucher, release,
satisfaction, check, xxxx of sale of all or any property by this Agreement
assigned to the Surety or any other paper or contract necessary or desired to
carry into effect the purposes of this Agreement; with full right and authority
also, in such event, to dispose of the performance of said contract by
subletting the same in the name of the Contractor or otherwise; and each of the
Undersigned does hereby ratify and confirm all that such attorney-in-fact or the
Surety may lawfully do in the premises and further authorizes and empowers the
Surety and such attorney-in-fact and each of them to enter upon and take
possession of the tools, plant equipment, materials and subcontracts and all
other collateral security mentioned In this Agreement and enforce, use, employ
and dispose
thereof for the purposes set forth in this Agreement. Each of the Undersigned
specifically agrees to protect, indemnity and hold harmless the Surety and such
attorney-in-fact against any and all claims, damages, costs and expenses that
may in any way arise or grow out of the exercise of the assignments contained in
this Agreement and the powers herein granted, specifically waiving any claim
which any Undersigned has or might hereafter have against the Surety or such
attorney-in-fact on account of anything done in enforcing the terms of this
agreement, assignments and power-of-attorney.
SIXTH: That the entire contract price of any contract referred to in a Bond or
Bonds, whether in the possession of the Undersigned or another, shall be and
hereby is impressed with a trust in favor of Surety for the payment of
obligations incurred for labor, materials and services in the performance of the
contract work for which Surety would be liable under such Bond or Bonds and for
the purpose of satisfying the conditions of the Bond executed in connection with
the contract.
SEVENTH: That if Surety shall be required or shall deem it necessary to set up a
reserve in any amount to cover any claim, demand, liability, expense, suit,
order, judgment or adjudication under or on any Bond or Bonds or for any other
reason whatsoever, to immediately upon demand deposit with Surety an amount of
money sufficient to cover such reserve and any increase thereof, such funds to
be held by Surety as collateral, in addition to the indemnity afforded by this
instrument, with the right to use such funds or any part thereof, at any time,
in payment or compromise of any liability, claims, demands, judgment, damages,
fees and disbursements or other expenses; and the Undersigned, in the event of
their failure to comply with such demand, hereby authorize and empower any
attorney or any court of record of the United States or any of its territories
or possessions, to appear for them or any of them in any suit by Surety and to
confess judgment against them or any of them for any sum or sums of money up
to the amount of any or all Bond or 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 the Undersigned to Surety under
the terms of this Agreement. Demand shall be sufficient if sent by registered
or certified mail to the Undersigned at the address or addresses given herein
or last known to Surety, whether or not actually received. The authority to
confess judgment as set forth herein shall 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 the Undersigned to Surety shall have been paid in
full.
EIGHTH: All collateral security held by or assigned to the Surety may be used by
the Surety at anytime in payment of any claim, loss or expense which the
Undersigned have agreed to pay hereby, whether or not such claim, loss or
expense arises out of or in connection with such Bond or contract under which
such collateral is held. The Surety may sell or realize upon any or all such
collateral security, at public or private sale, with or without notice to the
Undersigned or any of them, and with the right to be purchaser itself at any
such public sale, and shall be accountable to the Undersigned only for such
surplus or remainder of such collateral security or the proceeds thereof as may
be in the Surety's possession after it has been fully indemnified as in this
Agreement provided. The Surety shall not be liable for decrease in value or loss
or destruction of or damage to such security, however caused.
NINTH: The Surety shall have the right at its option and in its sole
discretion:
(a) To deem this Agreement breached should the Contractor become
involved in any agreement or proceeding of liquidation, receivership,
or bankruptcy, voluntarily or involuntarily, or should the Contractor
if an individual die, be convicted of a felony, become a fugitive from
justice, or for any reason disappears and cannot immediately be found
by the Surety by use of usual methods.
(b) To take possession of the work under any contract and at the
expense of the Undersigned to complete or to contract for the
completion of the same, or to consent to the reletting of the
completion thereof by the obligee in said contract Bond or Bonds, or to
take such other steps as in the discretion of the Surety may be
advisable or necessary to obtain its release or to secure itself from
loss thereunder.
(c) To adjust settle or compromise any claim, demand, suit or judgment
upon said Bond or Bonds, or any of them.
(d) To increase or decrease the penalty or penalties of any such Bond
or Bonds, to change the obligee or obligees therein, to execute any
continuations, enlargements, modifications and renewals thereof or
substitute therefore with the same or different conditions,
provisions and obligees, and with the same or larger or smaller
penalties, it being agreed that this instrument shall apply to and
cover such new or changed bonds or renewals even though the consent
of the Surety may or does substantially increase the liability of the
Contractor and the Undersigned and to take such steps as it may deem
necessary or proper to obtain release from liability under any such
Bond or Bonds.
All damage, loss or expense of any nature which the Surety may incur under
Section Ninth shall be borne by the Undersigned.
TENTH: The Surety shall have the exclusive right for itself and for the
Undersigned to decide and determine whether any claim, demand, suit or judgment
upon said Bond or Bonds shall, on the basis of liability, expediency or
otherwise, be paid, settled, defended or appealed, and its determination shall
be final, conclusive and binding upon the Undersigned; and any loss, costs,
charges, expense or liability thereby sustained or incurred, as well as any and
all disbursements on account of costs, expenses and attorneys' fees, deemed
necessary or advisable by the Surety, shall be borne and paid immediately by the
Undersigned, together with legal interest In the event of any payment settlement
compromise or investigation, an itemized statement of the payment loss, costs,
damages, expenses or attorneys' fees, sworn to by any officer of the Surety or
the voucher or vouchers or other evidence of such payment settlement or
compromise, shall be prima facie evidence of the fact and extent of the
liability of the Undersigned to the Surety in any claim or suit hereunder and in
any and all matters arising between the Undersigned and the Surety.
ELEVENTH: The Surety is further authorized and empowered to advance money or to
guarantee loans to the Contractor which the Surety may see fit to advance to
said Contractor for the purpose of any contract referred to in or guaranteed by
said Bond or Bonds; and all money so loaned or advanced and all costs,
attorneys' fees and expenses incurred by the Surety in relation thereto, unless
repaid with legal interest when due, shall be conclusively presumed to be a loss
by the Surety for which each and all of the Undersigned shall be responsible,
notwithstanding said money or any part thereof so loaned or advanced to the
Contractor for the purpose of any such contract should not be so used by the
Contractor. The Undersigned hereby waive all notice of such advance or loan, or
of any default or any other act or acts giving rise to any claim under any said
Bond or Bonds, and waive notice of any and all liability of the Surety under any
said Bond or Bonds or any and all liability on the part of the Undersigned to
the effect and end that each of the Undersigned shall be and continue liable to
the Surety hereunder notwithstanding any notice of any kind to which the
Undersigned might have been or be entitled and notwithstanding any defenses
which the Undersigned might have been or be entitled to make.
TWELFTH: No assent, assignment, change in time or manner of payment or other
change or extension in the terms of any Bond or of any contract referred to in
such Bond or in the general conditions, plans or specifications incorporated in
such contract granted or authorized by the Surety or the refusal to so grant or
authorize, shall release, discharge or in any manner whatsoever affect the
obligations assumed by the Undersigned in executing this Continuing Agreement of
Indemnity. This Agreement shall apply to any and all renewal, continuation or
substitution bonds executed by the Surety, The Surety shall not be required to
notify or obtain the approval or consent of the Undersigned prior to granting,
authorizing or executing any assent, assignment, change or extension. The Surety
shall have the absolute right to cancel any bond in accordance with any
cancellation provision contained therein and the Surety is hereby released from
any liability for expenses, costs, or damage alleged to be sustained by the
Undersigned by reason of such cancellation.
THIRTEENTH: Until the Surety shall have been furnished with competent legal
evidence of its discharge without loss from any and all Bonds, the Surety shall
have the right at all times to free access to the books, records and accounts of
each of the Undersigned for the purpose of examining the same. Each of the
Undersigned hereby authorizes and requests any and all depositories in which
funds of any of the Undersigned may be deposited to furnish to the Surety the
amount of such deposits as of any date requested and any person, firm or
corporation doing business with the Undersigned is hereby authorized to furnish
any information requested by the Surety concerning any transaction. The Surety
may furnish copies of any and all statements, agreements and financial
statements and any information which it now has or may hereafter obtain
concerning each of the Undersigned, to other persons or companies for the
purpose of procuring co-suretyship or reinsurance or of advising interested
persons or companies.
FOURTEENTH: Each of the Undersigned does hereby waive all right to claim any
property, including homestead as exempt from levy, execution, sale or other
legal process under the law of any state, province or other government as
against the rights of the Surety to proceed against the same for indemnity
hereunder.
FIFTEENTH: The Surety shall have every right and remedy which a personal surety
without compensation would have, including the right to secure its discharge
from the suretyship and nothing herein contained shall be considered or
construed to waive, abridge or diminish any right or remedy which the Surety
might have if this instrument were not executed. The Undersigned will, on
request of the Surety procure the discharge of the Surety from any Bonds, and
all liability by reason thereof. Separate suits may be brought hereunder as
causes of action may accrue, and the pendency or termination of any such suit
shall not bar any subsequent action. The Surety shall be notified immediately by
the Undersigned of any claim or action which may result in a claim against the
Surety, such notice to be given by registered mail to the Surety at its Home
Office. In the event of legal proceedings against the Surety, upon or on account
of any said Bond or Bonds, the Surety may apply for a court order making
any or all of the Undersigned parties defendants, and each Undersigned hereby
consents to the granting of such application and agrees to become such a party
defendant and to allow judgment in the event of judgment against the Surety,
to be rendered also against such Undersigned in like amount and in favor of
the Surety, if the Surety so desires.
SIXTEENTH: The Surety reserves the right to decline to execute any such Bond;
and if it shall execute any proposal Bond, and if the Contractor is awarded the
contract, the Contractor shall not be obligated to obtain any Bond or Bonds
required by the contract from the Surety nor shall the Surety be obligated to
execute such Bond or Bonds.
SEVENTEENTH: This Agreement shall, in all its terms and agreements, be for the
benefit of and protect any person or company joining with the Surety in
executing said Bond or Bonds, or any of them, or executing at the request of the
surety said Bond or Bonds, or any of them as well as any company or companies
assuming co-suretyship or reinsurance thereon.
EIGHTEENTH: The Undersigned warrant that each of them is specifically and
beneficially interested in the obtaining of each Bond. Failure to execute, or
defective execution, by any party, shall not affect the validity of this
obligation as to any other party executing the same and each such other party
shall remain fully bound and liable hereunder. Invalidity of any portion or
provision of this Agreement by reason of the laws of any state or for any other
reason shall not render the other provisions or portions hereof invalid.
Execution of any application for any Bond by the Contractor, or of any other
indemnity agreement by any Undersigned for the Contractor shall in no way
abrogate, waive or diminish any rights of Surety under this Agreement. The
Undersigned acknowledge that the execution of this Agreement and the undertaking
of indemnity was not made in reliance upon any representation concerning the
financial responsibility of any Undersigned, or concerning the competence of the
Contractor to perform.
NINETEENTH: Each of the Undersigned expressly recognizes and covenants that this
Agreement is a continuing obligation applying to and indemnifying the Surety and
that the rights of Indemnification of each Surety signatory to this Agreement
shall be individual and not joint with those of the other signatory Sureties as
to any and all Bonds (whether or not covered by any application signed by
Contractor--such application to be considered between the parties hereto as
merely supplemental to this Continuing Agreement of Indemnity) heretofore or
hereafter executed by Surety on behalf of Contractor (whether contracting alone
or as a Co-venture) until this Agreement shall be canceled in the manner
hereinafter provided. Any of the Undersigned may notify the Surety(ies) at its
Head Office, of such Undersigned's withdrawal from this Agreement; such notice
shall be sent by certified or registered mail and shall state when, not less
than thirty days after receipt of such notice by the Surety, such withdrawal
shall be effective. Such Undersigned will not be liable under this Agreement
as to any Bonds executed by the Surety after the effective date of such
notice; provided, that as to any and all such Bonds executed or authorized by
the Surety prior to effective date of such notice and as to any and all
renewals, continuations and extensions thereof or substitutions therefore
(and, if a proposal or Bid Bond has been executed or authorized prior to such
effective date, as to any contract Bond executed pursuant thereto) regardless
of when the same are executed, such Undersigned shall be and remain fully
liable hereunder, as if said notice had not been served. Such withdrawal by
any Undersigned shall in no way affect the obligation of any other Undersigned
who has given no such notice of termination.
TWENTIETH: That this Agreement or a carbon, photographic, xerographic or other
reproduction or copy of this Agreement shall constitute 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 that the filing or recording of this Agreement shall be solely at
the option of Surety and that the failure to do so shall not release or impair
any of the obligations of the Undersigned under this Agreement or otherwise
arising, nor shall such failure be in any manner in derogation of the rights of
Surety under this Agreement or otherwise.
Signed, sealed, and dated this 19th day of March, 1998
Attest: ATG Inc.
_________________________________ (Seal) _____________________________ (Seal)
/s/ Xxxxxx X. Xxxx
_________________________________ (Seal) _____________________________ (Seal)
Xxxxxx X. Xxxxxxxxxx Xxxxxx X. Xxxx, President
/s/ Xxxxxx X. Xxxx
_________________________________ (Seal) _____________________________ (Seal)
Xxxxxx X. Xxxx, Individually
/s/ Xxxxx X. Xxxx
_________________________________ (Seal) _____________________________ (Seal)
Xxxxx X. Xxxx, Individually
_________________________________ (Seal) _____________________________ (Seal)
_________________________________ (Seal) _____________________________ (Seal)
_________________________________ (Seal) _____________________________ (Seal)
_________________________________ (Seal) _____________________________ (Seal)
_________________________________ (Seal) ____________________________________
Name of Surety(ies)
By:_________________________________
IMPORTANT: Print or type the name and address of each signatory to this
agreement. Each signature must be acknowledged - See REVERSE HEREOF.
STATE OF CALIFORNIA
ss.
COUNTY OF ALAMEDA
On this 19th day of March, 1998, before me personally appeared Xxxxxx X. Xxxx
and Xxxxx X. Xxxx to me known and known to me to be the individual(s) described
in and who executed the foregoing agreement and acknowledged that _____ he _____
executed the same for the purposes, considerations and uses therein set forth as
_____ h ____ free and voluntary act and deed.
/s/ Xxxx Xxxxx
Notary Public, residing at Fremont, California
(Commission expires December 7, 1998)
XXXX XXXXX (SEAL)
STATE OF CALIFORNIA
ss.
COUNTY OF ALAMEDA
On this 19th day of March, 1998, before me personally appeared Xxxxxx X. Xxxx to
me known, who being by me duly sworn, did repose and say: that he resides in
00000 Xxxxxxx Xxxx., Xxxxxxx, XX 00000 that he is the President of the ATG,
Inc., the corporation described in and which executed the foregoing instrument;
that he knows the seal of the said corporation; that the seal affixed to the
said instrument is such corporate seal; that it was so affixed by order of the
Board of Directors of said corporation, and that he signed his name to the said
instrument by like order.
/s/ Xxxx Xxxxx
Notary Public, residing at Fremont, California
(Commission expires December 7, 1998)
XXXX XXXXX (SEAL)
