Exhibit 10.28
GENERAL AGREEMENT SAFECO Insurance Company
[SAFECO LOGO] OF INDEMNITY XX Xxx 00000
XXX XXXXXXXXXXX Xxxxxxx XX 00000-0000
THIS AGREEMENT is made by the Undersigned in favor of the SAFECO insurance
Companies for the purpose of indemnifying them from all loss and expense in
connection with any Bonds for which any SAFECO Insurance Company now is or
hereafter becomes Surety for any of the following as Principal: CELERITY GROUP,
INC. dba KINETICS HOLDINGS CORPORATION; KINETICS GROUP. INC.: KINETIC SYSTEMS,
INC. ___________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
In consideration of the execution of any such Bonds for Contractor and as an
inducement to such execution by Surety, the Undersigned jointly and severally,
agree as follows
DEFINITIONS: Where they appear in this agreement, the following terms shall be
considered as defined in this paragraph:
CONTRACTOR: Any one, combination of, or all of the persons, firms or
corporations set forth above or their successors in interests, whether alone or
in joint venture or as members in limited liability companies with others not
named herein.
BOND: Any and all bonds, undertakings or instruments of guarantee and any
continuation, extension, alteration, renewal or substitution thereof, whether
with the same or different penalties, executed by Surety.
SURETY: Any one or combination of the following: SAFECO Insurance Company of
America; General Insurance Company of America; First National Insurance Company
of America; SAFECO National insurance Company; American States Insurance
Company; American Economy insurance Company; any person or company joining with
any of the aforesaid companies in executing any Bond, executing any Bond at
their request or providing reinsurance to them with respect to any Bond.
CONTRACT: Any contract between Contractor and a third party, the performance of
which is guaranteed by any Bond for which Surety is surety.
DEFAULT: Contractor shall be deemed to be in default under this agreement in the
event it:
(1) Is declared to be in default by the Obligee of any Bond;
(2) Actually Breaches or abandons any Contract;
(3) Fails to pay. to the extent due in whole or in part, claims, bills or
other indebtedness incurred in connection with the performance of any
Contract;
(4) Becomes the subject of any agreement or proceeding of liquidation or
receivership, or actually becomes insolvent;
(5) If an individual, dies, is adjudged mentally incompetent, is convicted
of a felony or disappears and cannot be immediately found by Surety by
use of usual methods;
(6) Breaches, fails to perform, or comply with, any provision of this
agreement.
INDEMNITY TO SURETY: Undersigned agree to pay to Surety upon demand:
1 All loss, costs and expenses of whatsoever kind and nature, including
court costs, reasonable attorney fees (whether Surety at its sole
option elects to employ its own attorney, or permits or requires
Undersigned to make arrangements for Surety's legal representation),
consultant fees, investigative costs and any other losses, costs or
expenses incurred by Surety by reason of having executed any Bond, or
incurred by it on account of any Default under this agreement by any of
the Undersigned.
In addition the Undersigned agree to pay to Surety interest on all
disbursements made by Surety in connection with such loss, costs and
expenses incurred by Surety at the maximum rate permitted by law
calculated from the date of each disbursement;
2 An amount sufficient to discharge any claim made against Surety on any
Bond This sum may be used by Surety to pay such claim or be held by
Surety as collateral security against loss on any bond;
3 Any original, additional or renewal premium due for any bond.
With respect to claims against Surety:
1 Surety shall have the exclusive right for itself and the Undersigned to
determine in good faith whether any claim or suit upon any Bond shall,
on the basis of belief of liability, expediency or otherwise, be paid,
compromised, defended or appealed.
2. Surety may incur such expenses. Including reasonable attorneys' fees,
as deemed necessary or advisable in the investigation, defense and
payment of such claims.
3 Surety's determination in good faith of the foregoing shall be final
and conclusive upon the Undersigned.
4 An itemized statement of loss and expense incurred by Surety, sworn to
by an officer of Surely, shall be prima facie evidence of the fact and
extent of the liability of Undersigned to Surety in any claim or suit
by Surely against Undersigned.
SURETY'S REMEDIES IN EVENT OF DEFAULT: In event of default by Contractor Surety
shall have the right, at its sole discretion to:
1 Take possession of the work under any and all Contracts and to arrange
for its completion by others or by the Obligee of any Bond;
2 Take possession of Contractor's or any of Undersigneds' equipment,
materials and supplies at the site of the work, or elsewhere, if needed
for prosecution of the work, as well as Contractor's office equipment,
books and records, and utilize the same in completion of the work under
the Contract without payment of any rental for such use;
3 Loan or guarantee a loan to Contractor of such money as Surety shall
see fit, for the purpose of completing any Contract, or for discharging
Contractor's obligations for labor, material, equipment, supplies and
other charges, incurred in connection with any contract;
4 Take such other action as Surety shall deem necessary to fulfill its
obligations under any Bond.
(R) A registered trademark of SAFECO Corporation
PAGE 1 of 4 FRP
Undersigned waive all notice of such default, of the payment of any claim or of
the making of any loan to Contractor by Surety Should Undersigned learn of any
claim or suit against Contractor, for which Surety may be held liable.
Undersigned shall give prompt notice to Surety of such claim or suit
Separate suits may be brought under this agreement as causes of action accrue,
and the pendency or termination of any such suit shall not bar any subsequent
action by Surety
SECURITY TO SURETY: As collateral security to Surety for the agreement of the
Undersigned to repay all loss and expense to Surety, the Undersigned:
1 Assigns to Surety, as of the date of execution of any Bond, all rights
of the Contractor in, or in any manner growing out of:
a Any Contract or modification thereof;
b Any subcontract or purchase order and against any legal entity
and its surety who has contracted with Contractor to furnish
labor, materials, equipment and supplies in connection with
any Contract;
c Monies due or to become due Contractor on any Contract,
including all monies earned or unearned which are unpaid at
the time of notification by Surety to the Obligee of Surety's
rights hereunder;
d Any actions, causes of action, claims or demands whatsoever
which Contractor may have or acquire against any party to the
Contract, or arising out of or in connection with any Contract
including but not limited to those against obligees and design
professionals and any surety or sureties of any obligee, and
Surety shall have the full and exclusive right, in its name or
in the name of the Contractor, but not the obligation, to
prosecute, compromise, release or otherwise resolve such
actions, causes of action, claims or demands;
e Any and all rights, title, interest in, or use of any patent,
copyright or trade secret which is or may be necessary for the
completion of any bonded work;
f All monies due or to become due to Contractor on any policy of
insurance relating to any claims arising out of the
performance of any Contract or to premium refunds, including,
but not limited to, builders risk. fire, employee dishonesty
or workers' compensation policies.
The Surety agrees to forbear exercising the rights granted to it in (a) through
(f) until there is a Default under this agreement;
2 Irrevocably nominate and appoint any officer of Surety as the true and
lawful attorney-in-fact of the Undersigned, with full right and
authority in event of Contractor's default to:
a Sign the name of the Undersigned to any voucher, release,
satisfaction, check, xxxx of sale of property referred to
herein, or any other paper or contract necessary or desired to
carry into effect the purposes of this agreement;
b Dispose of performance of any Contract by subletting it in
Contractor's name or otherwise;
3 Authorize Surety to join any and all of the Undersigned as parties
defendant in any action, regardless of venue, against Surety on account
of any Bond, and to enforce the obligations hereunder directly against
any of the Undersigned without the necessity of first proceeding
against the Contractor;
4 Agree that all monies earned by Contractor under any Contract are trust
funds, whether in the possession of Contractor or otherwise, for the
benefit of, and for payment of Contractor's obligations for labor,
material, and supplies furnished to Contractor in performance of such
Contract for which Surety would be liable under any Bond on such
Contract;
5 Agree that this agreement may at any time be completed and filed by
Surety in such a manner that it will qualify as a financing statement
under the applicable provisions of any statute of any state which has
adopted The Uniform Commercial Code, and that Surety may add such
schedules to this agreement, describing specific items of security
covered hereunder as shall be necessary under such statutes.
GENERAL PROVISIONS:
1 Assent by Surety to changes in any Contract or Bond or refusal to
assent shall not release or affect the obligations of Undersigned to
Surety even though any such assent by the Surety does or might increase
the liability of the Undersigned.
2 Surety has the right to decline to execute, provide or procure any bond
requested by Contractor If Surety does execute, provide or procure the
execution of a bid bond or proposal bond, or agrees or consents to
provide such contract of suretyship. Surety retains the right to
decline to execute the final bond (including, but not limited to,
performance, payment or maintenance bonds) that may be required in
connection with any award that may be made under the bid proposal or
tender to which the bid proposal bond or agreement or consent to
provide such contract of suretyship is given.
3 Surety shall have every right, defense or remedy which a personal
surety without compensation would have including the right of
exoneration and the right of subrogation.
4 Until Surety shall have been furnished with competent evidence of its
discharge, without loss from any Bonds. Surety shall have the right to
free access at reasonable times to the books, records and accounts of
each of the Undersigned for the purpose of examining, copying or
reproducing them. Each one of the Undersigned hereby authorizes any
depositories in which funds of any of the Undersigned may be deposited
to furnish to Surety the amount of such deposits as of any date
requested, and any legal entity doing business with the undersigned is
authorized to furnish any information requested by Surety concerning
any transaction Surety may furnish in confidence copies of 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.
5 The undersigned will, on request of Surety, procure the discharge of
Surety from any Bond and all liability by reason thereof. If such
discharge is unattainable, the Undersigned will, if requested by
Surety, either deposit collateral with Surety, acceptable to Surety,
sufficient to cover all exposure under such bond or bonds, or make
provisions acceptable to Surety for the funding of the bonded
obligation(s).
6 Undersigned warrant that each of them is specifically and beneficially
interested in the obtaining of each Bond.
7 In case the execution hereof by any of the Undersigned may be defective
or invalid for any reason, such defect or invalidity shall not in any
manner affect the validity of this obligation or the liability
hereunder of any other of the Undersigned. Invalidity of any provision
of this agreement by reason of the laws of any state or for any other
reason shall not render the other provisions hereof invalid.
8 Execution by Contractor or any of the Undersigned of any application
for any Bond or of any other agreement of indemnity in behalf of
Contractor, or the taking of indemnity of any other person by Surety
with respect to any Bond of Contractor, shall in no way be deemed to
waive, diminish or abrogate any rights of Surety under this agreement.
9 The Undersigned waive and subordinate all rights of indemnity,
subrogation and contribution each against the other until all
obligations to the Surety under this agreement, at law or in equity,
have been satisfied in full.
10 The rights and remedies afforded to the Surety by the terms of this
agreement and the terms themselves may not be waived or modified orally
and no written change or modification shall be effective until signed
by an employee of the Surety.
11 This agreement is to be liberally construed so as to protect, exonerate
and indemnify the Surety.
12 All parties agree that any microfilmed, scanned or electronically
digitized copy of this document made by Surety as part of its record
storage and retention program shall be as effective as the original for
ail purposes.
PAGE 2 OF 4
TERMINATION: This agreement is a continuing obligation of the Undersigned unless
terminated as provided in this paragraph. An Undersigned desiring to terminate
liability as to future Bonds of Contractor must:
1 Give written notice to Surety at Xxxxxxx. Xxxxxxxxxx 00000, by
certified or registered mail, of such termination;
2 State in such notice the effective date (not less than thirty days
after the receipt of notice by Surety) of termination of such
Undersigned's liability for future Bonds.
3 It is understood and agreed that oral notice to or constructive notice
to any agent or employee of Surety shall not constitute effective
notice of termination under this agreement.
After the effective date of termination, the Undersigned giving notice shall be
liable hereunder for:
1 Bonds executed or authorized prior to such date, and renewals and
extensions thereof;
2 Bonds executed pursuant to a bid or proposal bond executed or
authorized prior to such date, and renewals and extensions thereof.
Such termination of liability as to an Undersigned shall in no way affect the
obligation of any other Undersigned who has not given notice as herein provided
EXECUTED THIS 18 DAY OF FEBRUARY, 2003
CELERITY GROUP, INC. DBA KINETICS HOLDINGS
CORPORATION;
ATTEST: /s/ Xxxx X. Xxxxxxx BY: /s/ Xxxxx X. Xxxxxxx
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XXXX X. XXXXXXX, SECRETARY XXXXX X. XXXXXXX, PRESIDENT
KINETICS GROUP, INC.
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ATTEST: /s/ Xxxx X. Xxxxxxx By: /s/ Xxxxx X. Xxxxxxx
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XXXX X. XXXXXXX, SECRETARY XXXXX X. XXXXXXX, PRESIDENT
KINETIC SYSTEMS, INC.
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ATTEST: /s/ Xxxx X. Xxxxxxx BY: /s/ Xxxxx X. Xxxxxxx
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XXXX X. XXXXXXX, SECRETARY XXXXX X. XXXXXXX, PRESIDENT
ALL SIGNATURES MUST BE ACKNOWLEDGED
PAGE 3 OF 4
SIGNATURE ADDENDUM SAFECO Insurance Company
[SAFECO LOGO] XX Xxx 00000
Xxxxxxx, XX 00000-0000
The signatures on this page are intended to and shall be a part of the Agreement
of indemnity given to the SAFECO insurance companies on behalf of CELERITY
GROUP, INC. dba KINETICS HOLDINGS CORPORATION; KINETICS GROUP, IN KINETIC
SYSTEMS, INC. and dated February 18, 2003 We, the undersigned, acknowledge that
we have read all the terms and conditions of the Agreement of Indemnity
referenced above and fully understand the nature of this obligation.
Provided, however, that the obligation of the undersigned is limited to
the aggregate sum of $10,000,000 (Ten million dollars); without,
however, affecting or diminishing the liability of any other signator
to this agreement.
XXXXXXX CAPITAL III L.P.
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BY: XXXXXXX CAPITAL III LLC, ITS GENERAL PARTNER
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BY: /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx, Its Managing Member
Provided, however, that the obligation of the undersigned is limited to
the aggregate sum of $2,500,000 (Two million five hundred thousand
dollars); without, however, affecting or diminishing the liability of
any other signator to this agreement.
/s/ Xxxxx X. Xxxxxxx
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XXXXX X. XXXXXXX, INDIVIDUALLY
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XXXXXXXX XXXXXXX, INDIVIDUALLY
All parties agree that microfilmed, scanned or electronically digitized copy of
this document made by Surely as part of its record storage and retention program
shall be as effective as the original for all purposes.
(R) A registered trademark of SAFECO Corporation
CONSIDERATION SAFECO Insurance Company
[SAFECO LOGO] ACKNOWLEDGMENT XX XXX 00000
Xxxxxxx XX 00000-0000
The undersigned signators on a specific Agreement of Indemnity in favor of a
SAFECO Insurance Company of America, General Insurance Company of America, First
National Insurance Company of America, SAFECO National Insurance Company,
American States Insurance Company, American Economy Insurance Company, dated
February 18, 2003, acknowledge that execution of this agreement was promised as
a condition precedent to and in consideration of your execution of Bond No
6192546 on October 28, 2002, on behalf of KINETIC SYSTEMS, INC., as Principal,
and agree that said agreement is applicable to said bond
Signed and dated this 18 day of February, 2003
SIGNATURE OF APPLICANT FOR BOND: SIGNATURE OF APPLICANT FOR BOND:
KINETIC SYSTEMS, INC.
----------------------------------- ---------------------------------------
(Firm Name) (Firm Name)
ATTEST: /s/ Xxxx X. Xxxxxxx /s/ Xxxxx X. Xxxxxxx
----------------------------------- ---------------------------------------
XXXX X. XXXXXXX, SECRETARY XXXXX X. XXXXXXX, PRESIDENT
----------------------------------- ---------------------------------------
SIGNATURE OF INDEMNITORS
/s/ Xxxxx X. Xxxxxxx /s/ Xxxxxxxx Xxxxxxx
----------------------------------- ---------------------------------------
Xxxxx X. Xxxxxxx Xxxxxxxx Xxxxxxx
/s/ Xxxxxxx X. Xxxxxxx
----------------------------------- ---------------------------------------
Xxxxxxx X. Xxxxxxx
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All parties agree that any microfilmed, scanned or electronically digitized copy
of this document made by Surety as part of its record storage and retention
program shall be as effective as the original for all purposes.
(R) A registered trademark of SAFECO Corporation
FRP
CONSIDERATION SAFECO Insurance Company
[SAFECO LOGO] ACKNOWLEDGMENT XX Xxx 00000
Xxxxxxx XX 00000-0000
The undersigned signators on a specific Agreement of Indemnity in favor of a
SAFECO insurance Company of America, General Insurance Company of America, First
National Insurance Company of America, SAFECO National Insurance Company,
American States Insurance Company, American Economy Insurance Company, dated
February 18, 2003, acknowledge that execution of this agreement was promised as
a condition precedent to and in consideration of your execution of Bond No
6192544 on September 19, 2002,________________________________.on behalf of
KINETIC SYSTEMS, INC., as Principal, and agree that said agreement is applicable
to said bond
Signed and dated this 18 day of February, 2003
SIGNATURE OF APPLICANT FOR BOND: SIGNATURE OF APPLICANT FOR BOND:
KINETIC SYSTEMS, INC.
----------------------------------- ---------------------------------------
(Firm Name) (Firm Name)
ATTEST: /s/ Xxxx X. Xxxxxxx /s/ Xxxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx, Secretary Xxxxx X. Xxxxxxx, President
----------------------------------- ---------------------------------------
SIGNATURE OF INDEMNITORS
/s/ Xxxxx X. Xxxxxxx /s/ Xxxxxxxx Xxxxxxx
----------------------------------- ---------------------------------------
XXXXX X. XXXXXXX XXXXXXXX XXXXXXX
/s/ Xxxxxxx X. Xxxxxxx
----------------------------------- ---------------------------------------
XXXXXXX X. XXXXXXX
----------------------------------- ---------------------------------------
All parties agree that any microfilmed, scanned or electronically digitized copy
of this document made by Surety as part of its record storage and retention
program shall be as effective as the original for all purposes.
(R)A registered trademark of SAFECO Corporation
FRP
