Exhibit 10.34
ALLSTATE INSURANCE COMPANY
HOME OFFICE - NORTHBROOK, ILLINOIS
AGREEMENT OF GENERAL INDEMNITY
KNOW ALL MEN BY THESE PRESENTS, that whereas the undersigned, hereinafter
called Indemnitors, have requested and do hereby request Allstate Insurance
Company hereinafter referred to as the Surety, to execute or procure the
execution of such Bonds, undertakings or recognizances (all of which are
hereinafter included within the term "Bond or Bonds") as have been and such as
may hereafter be applied for directly or through an agent, attorney or other
representative or required, solely or as co-adventurer with others, by any of
the Indemnitors or by any person, firm, corporation or association whose name
shall, for that purpose, have been furnished to the Surety by any of the
Indemnitors, or to refrain from canceling any such Bond or Bonds, it being
understood and agreed that this instrument shall cover all Bonds so applied for,
executed, continued or renewed, whether or not this instrument is referred to or
mentioned in connection therewith.
WHEREAS, the Indemnitors understand that the Surety expressly requires the
delivery of this Indemnity Agreement as part of the consideration for the
execution by the Surety of such Bonds which may hereafter be furnished, or for
the refraining from canceling such Bonds; and
WHEREAS, the Indemnitors have a substantial, material and beneficial
interest in the obtaining of Bonds or in the Surety's refraining from canceling
such Bonds.
NOW, THEREFORE, in consideration of the premises and of the execution or
continuance of such Bonds, the Indemnitors for themselves, their heirs,
executors, administrators, successors and assigns, do hereby jointly and
severally, covenant and agree with the Surety, its successors and assigns as
follows:
PREMIUMS 1. The Indemnitors will pay, when due, all premiums for each of such
Bonds in accordance with the Surety's regular manual rates in effect on the date
such Bond becomes effective as long as liability thereunder shall continue, and
until the Surety is furnished with evidence satisfactory to the Surety of its
discharge or release from the Bonds, or of all liability by reason thereof.
INDEMNITY 2. The Indemnitors will indemnify the Surety against any and all
liability, loss, costs, damages, fees of attorneys and other expenses which the
Surety may sustain or incur by reason of, or in consequence of the execution of
such Bonds and any renewal, continuation or successor thereof, including but not
limited to, sums paid or liabilities incurred in settlement of, and expenses
paid or incurred in connection with claims, suits, or judgments under such
Bonds, expenses paid or incurred in enforcing the terms hereof, in procuring or
attempting to procure release from liability, or in recovering or attempting to
recover losses or expenses paid or incurred, as aforesaid.
The Indemnitors will furnish to the Surety such information as it may request
from time to time concerning the financial condition of the Indemnitors, the
status of work under any contract covered by a Bond, the condition of the
performance of any such contract and the payment of obligations incurred in
connection therewith. The Surety may at reasonable times and places and from
time to time, examine and copy the books, records and accounts of the
Indemnitors. The Surety may obtain information concerning the affairs and
operations of the Indemnitors and any transaction between or among the
Indemnitors from any banks, depositories, obliges of the Bonds material men,
supply houses, credit reporting agencies or other persons, who are hereby
expressly authorized to furnish such information to the Surety.
If the Indemnitors become aware of any demand, notice or proceeding which may
result in liability to the Surety under any Bond, the Indemnitors shall notify
the Surety immediately thereof in writing. The Indemnitors will, at any time
upon the request of the Surety, procure the discharge of the Surety from any
Bond and from all liability by reason thereof. The Surety may, at any time, take
such action as it deems necessary or proper to obtain its release from any and
all liability under any Bond. Upon such discharge or release, the Surety shall
return to the Principal any portion of any premium paid which is unearned as a
result of such discharge or release.
RESERVE FOR LOSS 3. If the Surety shall set up a reserve to cover any liability,
claim asserted, suit or judgment under any such Bond, the Indemnitors will,
immediately upon demand and whether or not the Surety shall have made any
payment therefore, deposit with the Surety a sum of money equal to such reserve
and any increase thereof as collateral security on such Bond, and such sum and
any other money or property which shall have been or shall hereafter be pledged
as collateral security on any such Bond shall be available, in the discretion of
the Surety, as collateral security on all Bonds coming within the scope of this
instrument or for any other indebtedness of the Indemnitors to the Surety; and
any such collateral security shall be held subject to the terms of the Surety's
regular form of receipt for collateral, which is by reference made a part
hereof.
The Surety shall have the right to use the deposit, or any part thereof, in
payment or settlement of any liability, loss or expense for which the
Indemnitors would be obligated to indemnify the Surety under the terms of this
Agreement. Surety shall have no obligation to invest, or to provide a return on,
the deposit. The Indemnitors shall be entitled to the return of any unused
portion of the deposit upon termination of the liability of the Surety on the
Bonds and the performance by the Indemnitors of all obligations to the Surety
under the terms of this Agreement. The Surety's demand shall be sufficient if
sent by Registered or Certified Mail to the Indemnitors at the addresses stated
herein, or at the addresses of the Indemnitors last known to the Surety, whether
or not actually received.
CHANGE IN CONTRACT-LOANS-POSSESSION 4. If any such Bond be given in connection
with a contract, the Surety in its sole discretion is hereby authorized, but not
required, (a) to consent to any change in the contract or in the plans and
specifications relating thereto; (b) to make or guarantee advances or loans for
the purposes of the contract without any obligation to see to the application
thereof, and the Indemnitors shall be obligated to indemnify the Surety in
accordance with the terms of this Agreement for the amount of all such advances
and loans, notwithstanding that the proceeds or any part thereof have not been
so used by the Principal; (c) in the event of any default in the performance of
the contract, or the breach of this Agreement or of any Bond connected
therewith, or the failure to diligently prosecute the work under any contract or
pay for labor and materials used in the prosecution of the contract, or in the
event work has ceased or been suspended on any contract or contracts covered by
any said Bonds, to take possession of the work under the contract, and, at the
expense of the Indemnitors, to complete the contract or cause the same to be
completed or to consent to the completion thereof, and to take any other action
which the Surety may deem appropriate. In the event that the Surety takes
possession of the work as above provided, the Indemnitors hereby release and
discharge the Surety, in this connection, from all liability for all its actions
and omissions except for deliberate malfeasance.
ASSIGNMENT 5. The Indemnitors hereby assign, transfer, pledge and convey to the
Surety (effective as of the date of each such Bond, but only in the event of
default, breach or failure as referred to in preceding Section 4), as collateral
security, to secure the obligations hereunder and any other indebtedness and
liabilities of the Indemnitors to the Surety, all of their rights under the
contracts, referred to in such Bonds, including their right, title and interest
in and to (1) all subcontracts let in connection therewith and such
subcontractors' surety Bonds, (2) all machinery, plant, equipment, tools and
materials which shall be upon the site or sites of the work or elsewhere for the
purposes of the contracts, including al materials ordered for the contracts, and
(3) any and all sums due or which may thereafter become due under such contracts
and all sums due or to become due on all other contracts, bonded or unbonded, in
which any or all of the Indemnitors have an interest.
FILING OR RECORDING 6. The Surety may at its option, file or record this
Agreement or any other document executed by any or all of the Indemnitors,
individually or jointly, in connection with application, issuance or execution
of any Bond or Bonds, as a security Agreement or as part of a financing
statement or as notice of its prior interest and assignment under the provisions
of the Uniform Commercial Code or any other statute or regulation of any
jurisdiction or agency, but that the filing or recording of such document shall
be solely at the option of the Surety and that the failure to do so shall not
release or impair any of the obligations of the Indemnitors under this
Agreement.
ASSIGNMENT OF PROCEEDS 7. If any of the Bonds are executed in connection with a
contract which by its terms or by law prohibits assignment of contract proceeds,
or any part thereof, the Indemnitors covenant and agree to hold all money or
other proceeds of the contract, whether received as payment or loan, as a trust
for the benefit of the Surety and to use such money or other proceeds for the
purpose of performing the contract and discharging the obligation of the Bond,
and for no other purpose, until the Bond is completely exonerated.
CLAIMS-PAYMENTS 8. The Surety shall have the exclusive right to decide and
determine whether any claim, liability, suit or judgment made or brought against
the Surety or the Indemnitors or any one of them on any such Bond shall or shall
not be paid, compromised, resisted, defended, tried or appealed, and the
Surety's decision thereon, if made in good faith shall be final and binding upon
the Indemnitors, unless the Indemnitors shall request the Surety to litigate
such claim or demand, or to defend such suit, or to appeal from such judgment,
and shall deposit with the Surety, at the time of such request, cash or
collateral satisfactory to the Surety in kind and amount, to be used in paying
any judgment or judgments rendered or that may be rendered, with interest,
costs, expenses and attorneys fees, including those of the Surety. An itemized
statement of payments made by the Surety for any of the purposes specified
herein, sworn to by an officer of the Surety, or the voucher or vouchers for
such payments, shall be prima facie evidence of the liability of the Indemnitors
to reimburse the Surety for such payments, with interest.
CHANGES IN BONDS 9. The Indemnitors hereby authorize the Surety in its sole
discretion to do the following: (a) from time to time to make or consent to any
change in, or issue any substitute for or renewal of, any such Bond, or in any
contract referred to in any such Bond, and this instrument shall apply to such
substituted or changed Bond or renewal; (b) if any such Bond be given in an
action or proceeding in any court, to recognize any attorney of record in such
action or proceeding for any party thereto at the date of the execution of such
Bond as the authorized representative of such party until the Surety shall have
been fully discharged from liability under such Bond; (c) to take such steps as
the Surety may deem necessary or proper to obtain release from liability from
any such Bond.
NOTICE TO INDEMNITORS 10. The Indemnitors hereby waive notice of the execution
of any such Bonds or of any act, fact or information coming to the notice or
knowledge of the Surety concerning or affecting its rights or liabilities under
any such Bond or rights or liabilities of the Indemnitors hereunder, notice of
all such being hereby expressly waived.
PROTECTION TO REINSURER AND CO-SURETY 11. If the Surety shall procure any other
company or companies to execute or join with it in executing, or to reinsure,
any such Bonds, this instrument shall inure to the benefit of such other company
or companies, its or their successors and assigns, so as to give to it or them a
direct right of action against the Indemnitors to enforce this instrument and,
in that event, the word "Surety", wherever used herein, shall be deemed to
include such company or companies, as their respective interests may appear.
SEVERABILITY OF INDEMNITORS 12. The liability of the Indemnitors hereunder shall
not be affected by the failure of any party to sign any such Bond nor by any
claim that other indemnity or security was to have been obtained nor by the
release of any indemnity, or Indemnitor, nor the return or exchange of any
collateral that may have been obtained; and if any party signing this instrument
is not bound for any reason this obligation shall still be binding upon each and
every other party.
SUITS 13. Separate suits may be brought hereunder as causes of action accrue,
and suit may be brought against any or all of the Indemnitors; and suit or suits
upon one or more causes of action, or against one or more of the Indemnitors,
shall not prejudice or bar subsequent suits against any other or all of the
Indemnitors on the same or any other cause or causes of action, whether
theretofore or thereafter accruing.
The Surety is hereby expressly authorized to settle any claim based upon this
Agreement with any one or more of the Indemnitors individually, and such
settlement or compromise shall not affect the liability of any of the rest of
the Indemnitors. If any proceeding is brought against the Surety in which the
Surety desires to join any one of the Indemnitors by reason of the undertakings
in this Agreement, each of the Indemnitors agrees that he will, upon written
notice of the Surety to do so voluntarily appear in such proceedings and accept
service of process and other papers either personally or by an attorney of the
Indemnitors' choice. If any of the Indemnitors fail upon such notice from the
Surety so to appear, such Indemnitors hereby designate the Secretary of the
State or territory in which such proceedings are pending as his agent for the
service of process in any such proceedings.
With respect to any action brought by the Surety on this Agreement in a
jurisdiction in which one or more of the Indemnitors reside, are domiciled, are
doing business or are found, each of the Indemnitors not in the jurisdiction
hereby designates each of the Indemnitors in such jurisdiction as his agent to
receive on his behalf service of process in such action.
PRIOR BONDS 14. The Indemnitors waive any defense that this instrument was
executed subsequent to the date of any such Bond, admitting and covenanting that
such Bond was executed pursuant to the Indemnitors' request and in reliance on
the Indemnitors' promise to execute this instrument.
DECLINE EXECUTION 15. The Surety, at its option, may decline to execute or
participate in or procure the execution of any such Bonds, without incurring any
liability whatever to the Indemnitors. If the Surety shall execute a bid or
proposal Bond, or any similar undertaking, it may nevertheless decline to
execute any and all Bonds that may be required in connection with any award made
on the proposal for which the Bond or undertaking is given, and the Principal
shall have the right to procure from another surety any Bonds that may be
required in connection with any award under the proposal for which the Bond or
undertaking is given.
DEFINITIONS 16. As used in this Agreement, words in the singular include the
plural and words in the plural include the singular. The masculine pronoun shall
be read as feminine or neuter as circumstances require. The word "person" shall
mean and include individuals, partnerships, corporations and associations.
The terms "contract" shall include all documents comprising the contract
documents including general and special conditions, specifications and drawings.
The word "Bond" shall mean a contract of suretyship, guaranty or indemnity, an
agreement or consent to provide such a contract and the continuation, extension,
alteration, renewal or substitution of such a contract, agreement or consent.
NOMINEE 17. The Indemnitors hereby irrevocably nominate, constitute, appoint and
designate the Surety or its designee as their Attorney in Fact with the right,
but not the obligation, to exercise all of the rights of Indemnitors assigned,
transferred and set over to the Surety in this Agreement, and in the name of the
Indemnitors or any of them to make, execute and deliver any and all additional
or other assignments, documents or papers, including but not limited to the
execution of instruments referred to in Section 5, and the endorsement of checks
or other instruments representing payment of contract monies, deemed necessary
and proper by the Surety in order to give full effect not only to the intent and
meaning of the within assignments, but also to the full protection intended to
be herein given to the Surety under all other provisions of this Agreement. The
Indemnitors hereby ratify and affirm all acts and actions taken and done by the
Surety or its designee as such Attorney in Fact.
WAIVE EXEMPTIONS 18. The Indemnitors hereby waive and abandon, so far as their
respective obligations under this agreement are concerned, all rights to claim
any of the property, including the respective homesteads, as exempt from levy,
execution, sale or other legal process under the laws of any country, state,
province, territory or possession.
TERMINATION 19. The obligation of the Indemnitors hereunder shall be continuous;
provided, however, that any of the Indemnitors may give the Surety not less than
thirty days written notice by registered mail of his desire to terminate this
agreement but any such notice of termination shall not operate to modify, bar,
discharge, limit, affect or impair his liability hereunder on or by reason of
any such Bond executed prior to the termination of such thirty days, or with
respect to Bonds executed after the date of such termination (i) upon the award
of a contract to the Principal on a bid or proposal with respect to which the
Surety has executed a bid or proposal Bond or similar undertaking prior to such
date, or (ii) which the Surety has become obligated, prior to such date, to
execute. Further, such notice of termination shall operate only with respect to
those of the Indemnitors upon whose behalf such notice of termination shall have
been given.
CHANGES 20. This Agreement may not be changed or modified orally. No change or
modification shall be effective unless specifically agreed in writing.
SEVERABILITY AND ELECTION OF REMEDY 21. All rights and remedies of the Surety
under this Agreement shall be cumulative, and the exercise of or failure to
exercise, any right or remedy at any time shall not be an election of remedy or
a waiver of any other right or remedy. Failure of the Surety to pursue any
remedy against any one or more of the Indemnitors shall not release or waive any
right against any other of the Indemnitors.
The Surety is not required to exhaust its remedies or rights against the
Principal or to await receipt of any dividends from the legal representatives of
the Principal before asserting its rights under this Agreement against the
Indemnitors.
The rights, powers and remedies given to the Surety by this Agreement shall be
and are an addition to, and not in lieu of, any and all other rights, powers,
and remedies which the Surety may have or acquire against the Indemnitors or
others whether by the terms of any other agreement, by operation of law or
otherwise.
In the event any part of this indemnity Agreement shall be void under the law of
the place governing the construction hereof, then such part only shall be
considered as deleted and the remainder of this Agreement shall endure in full
force and effect.
OTHER INDEMNITY 22. The Indemnitors shall continue to remain bound under this
Agreement even though the Surety may, from time to time and with or without
notice to or knowledge of the Indemnitors, have heretofore accepted or released,
or shall hereafter accept or release, other Agreements of indemnity or
collateral in connection with the execution of the Bonds from the Indemnitors or
from others.
23. THE INDEMNITORS HAE READ THIS AGREEMENT OF INDEMNITY CAREFULLY. THERE ARE NO
SEPARATE AGREEMENTS OR UNDERSTANDINGS WHICH IN ANY WAY LESSEN THE OBLIGATIONS AS
ABOVE SET FORTH. THE INDEMNITORS FURTHER AGREE TO EXECUTE AND DELIVER TO THE
SURETY SUCH FURTHER INSTRUMENTS AS THE SURETY DEEMS NECESSARY TO GIVE EFFECT TO
THE TERMS OF THIS AGREEMENT.
24. In compliance with Public Law 91-508 this constitutes notice that an
investigation may be made as to the character, general reputation, personal
characteristics and mode of living of any non-business applicant or indemnitor.
Information as to nature and scope of any investigation requested will be
furnished upon written request.
IN TESTIMONY WHEREOF, the Indemnitors, intending to be legally bound hereby,
have hereunto set their hands and affixed their seals this _________________ day
of _________________ , 19 _____.
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INDIVIDUAL(S) ACKNOWLEDGMENT
STATE OF __________________________________
COUNTY OF ________________________________ ss:
On this ______________________________ day of ______________________ ,
19 ____ , before me personally came ____________________________________________
______________________________ , to me known and known to me to be the
individual(s) who executed the foregoing instrument, and acknowledged that ___
he ___ executed same.
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(Notary Public)
PARTNER(S) ACKNOWLEDGMENT
STATE OF __________________________________
COUNTY OF ________________________________ ss:
On this ______________________________ day of ______________________ ,
19 ____ , before me personally came ____________________________________________
______________________________ , to me known, and stated that ___ he ___ is
(are) partner(s) in the firm of ________________________________________________
________________________________________________________________________________
and acknowledged that ___ he ___ executed the foregoing instrument as the act of
the said firm.
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(Notary Public)
CORPORATE ACKNOWLEDGMENT(S)
STATE OF __________________________________
COUNTY OF ________________________________ ss:
On this ______________________________ day of ______________________ ,
19 ____ , before me personally came ____________________________________________
______________________________ , to me known, who, being by me duly sworn, did
depose and say that he resides in _____________________ that he is the _________
_____________________________________________________________________________ of
the_____________________________________________________________________________
the corporation 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 the
said corporation, and that he signed his name to the said instrument by like
order.
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(Notary Public)
STATE OF __________________________________
COUNTY OF ________________________________ ss:
On this ______________________________ day of ______________________ ,
19 ____ , before me personally came ____________________________________________
______________________________ , to me known, who, being by me duly sworn, did
depose and say that he resides in _____________________ that he is the _________
_____________________________________________________________________________ of
the_____________________________________________________________________________
the corporation 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 the
said corporation, and that he signed his name to the said instrument by like
order.
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(Notary Public)
STATE OF __________________________________
COUNTY OF ________________________________ ss:
On this ______________________________ day of ______________________ ,
19 ____ , before me personally came ____________________________________________
______________________________ , to me known, who, being by me duly sworn, did
depose and say that he resides in _____________________ that he is the _________
_____________________________________________________________________________ of
the_____________________________________________________________________________
the corporation 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 the
said corporation, and that he signed his name to the said instrument by like
order.
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(Notary Public)
