Liberty Bond Services Logo]
Exhibit
10.22
[Liberty
Bond Services Logo]
General
Agreement of Indemnity
This
General Agreement of Indemnity (hereinafter the “Agreement”) is made and entered
into by the following individuals, partnerships, corporations, and/or other
business entities, as applicable, Primoris
Corporation; ARB, Inc.; ARB Structures. Inc; Onquest, Inc.; Cardinal
Contractors, Inc.
(individually and collectively hereinafter called the “Indemnitor(s)”) jointly
and severally, in favor of Liberty Mutual Insurance Company, Employers Insurance
Company of Wausau (formerly “EMPLOYERS INSURANCE OF WAUSAU A Mutual Company”),
Peerless Insurance Company, and any other company that is part of or added
to
the Liberty Mutual Group, severally not jointly, and for which Liberty Bond
Services underwrites surety business (individually and collectively hereinafter
called the “Surety”) with respect to any surety bond, undertaking, recognizance,
instrument of guarantee or other surety obligations (hereinafter called the
“Bond(s)”) requested from and/or issued by the Surety before or after the date
of this Agreement, for i) Primoris
Corporation; ARB, Inc.; ARB Structures, Inc.; Onquest, Inc.; Cardinal
Contractors Inc.;
ii) any
of the Indemnitors or Principals’ subsidiaries or affiliates, whether present or
future, and whether directly or indirectly held; and iii) any other entity
or
person in response to a request from any Indemnitor or Principal named herein,
and, as to all of the foregoing, whether they act alone or in joint venture
with
others whether or not said others are named herein (individually and
collectively hereinafter called the “Principal(s)”).
WITNESSETH
WHEREAS,
the Indemnitors and Principals, in the performance of contracts and the
fulfillment of obligations generally, whether in their own names solely or
as
co-adventurers with others, may desire, request, or be required to give or
procure certain Bonds, and/or to renew, continue, extend or substitute, from
time to time, the same or new Bonds with the same or different penalties, and/or
conditions, as may be desired, requested or required, in the renewal,
continuation, extension and/or substitution thereof; or the Indemnitors or
Principals may request the Surety to refrain from canceling the Bonds;
and
WHEREAS,
at the request of the Indemnitors and with both the express understanding that
this Agreement be given and in reliance upon this Agreement, the Surety has
heretofore or has presently been requested to and/or has executed or has
procured to be executed, and, from time to time hereafter, may be requested
to
and/or may execute or may procure to be executed, the Bonds, on behalf of the
Principals; and
WHEREAS,
the Indemnitors have a substantial, material and beneficial interest in the
obtaining of the Bonds or in the Surety’s refraining from canceling any or all
Bonds.
NOW,
THEREFORE, in consideration of the premises, and intending to be legally bound
hereby, the Indemnitors and Principals for themselves, their heirs, executors,
administrators, successors and assigns, jointly and severally, hereby covenant
and agree with the Surety, its successors and assigns, as follows:
FIRST:
PREMIUMS - The lndemnitors and Principals will pay to the Surety, promptly
upon
demand, all premiums, costs and charges of the Surety for any Bonds requested
from and/or issued by the Surety in accordance with its rate filings, its manual
of rates as determined by the Surety, or as otherwise determined by the Surety,
and where such premium, costs and charges are annual, continue to pay the same
until the Indemnitors or Principals shall deliver evidence satisfactory to
the
Surety of its discharge or release from the Bonds and all liability by reason
thereof.
SECOND:
INDEMNITY - The Indemnitors shall exonerate, hold harmless, indemnify, and
keep
indemnified the Surety from and against any and all liability for losses, fees,
costs and expenses of whatsoever kind or nature including, but not limited
to
pre- and post-judgment interest at the maximum rate permitted by law accruing
from the date of a breach of this Agreement or a breach of any other written
agreements between or for the benefit of the Surety and the Indemnitor(s) and/or
Principal(s) (hereinafter referred to as “Other Agreements”), court costs,
counsel fees, accounting, engineering and any other outside consulting fees
and
from and against any and all such losses, fees, costs and expenses which the
Surety may sustain or incur: (1) by reason of being requested to execute or
procure the execution of any Bond; or (2) by having executed or procured the
execution of any Bond; or (3) by reason of the failure of the Indemnitors or
Principals to perform or comply with any of the covenants and conditions of
this
Agreement or Other Agreements; or (4) in enforcing any of the covenants and
conditions of this Agreement or Other Agreements. Payment by reason of the
aforesaid causes shall be made to the Surety by the Indemnitors and/or
Principals promptly, upon demand by the Surety, whether or not the Surety shall
have made any payment therefor and, at the Surety’s sole option, irrespective of
any deposit of collateral. If the Surety determines, in its sole judgment,
that
potential liability exists for losses and/or fees, costs and expenses for which
the Indemnitors and Principals will be obliged to indemnify the Surety under
the
terms of this Agreement or Other Agreements, the Indemnitors and/or Principals
shall deposit with the Surety, promptly upon demand, a sum of money equal to
an
amount determined by the Surety or collateral security of a type and value
satisfactory to the Surety, to cover that liability, whether or not the Surety
has: (a) established or increased any reserve; (b) made any payments; or (c)
received any notice of any claims therefor. At the Surety’s sole option, such
collateral shall be in addition to and not in lieu of any other collateral
that
has been previously provided to the Surety. The Surety shall have the right
to
use any collateral, or any part thereof, in payment or settlement of any such
liabilities for which the Indemnitors and Principals would be obliged to
indemnify the Surety under the terms of this Agreement or Other Agreements.
In
the event of any payment by the Surety, the Indemnitors and Principals further
agree that in any accounting between the Surety and the Principals, or between
the Surety and the Indemnitors, or either or both of them, the Surety shall
be
entitled to charge for any and all disbursements made by it in good faith in
and
about the matters herein contemplated by this Agreement or Other Agreements
under the belief that it is, or was, or might be liable for the sums and amounts
so disbursed or that it was necessary or expedient to make such disbursements,
whether or not such liability, necessity or expediency existed; and that the
vouchers or other evidence of any such payments made by the Surety shall be
prima facie evidence of the fact and amount of the liability to the Surety.
Surety shall have no obligation to invest or provide a return on any collateral
provided to it under this Agreement.
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THIRD:
ASSIGNMENT - The Indemnitors hereby consenting do assign, transfer, pledge
and
convey to the Surety and agree to use their best efforts to cause the Principals
to assign, transfer, pledge and convey to the Surety as collateral security
for
the full performance of the covenants and agreements herein contained, contained
in Other Agreements and for the payment of any other indebtedness or liability
of the Indemnitors and/or Principals to the Surety, whether heretofore or
hereafter incurred, the assignment in the case of each contract being effective
as of the date of the Bond covering such contract, the following: (a) all the
right, title and interest of the Indemnitors and/or Principals in, and growing
in any manner out of, all contracts referred to in the Bonds, or in, or growing
in any manner out of the Bonds; (b) all the right, title and interest of the
Indemnitors and/or Principals in and to all machinery, supplies, equipment,
plant, tools and materials which are now, or may hereafter be, about or upon
the
site or sites of any and all contractual work referred to in the Bonds or
elsewhere, including materials purchased for or chargeable to any and all
contracts referred to in the Bonds, materials which may be in the process of
construction, in storage at the site or elsewhere, or in transportation to
any
and all sites; (c) all the right, title and interest of the Indemnitors and/or
Principals in and to all subcontracts let or to be let in connection with any
and all contracts referred to in the Bonds, and in and to all surety bonds
supporting such subcontracts; (d) all actions, causes of actions, claims and
demands whatsoever which the Indemnitors and/or Principals may have or acquire
against any subcontractor, laborer or materialman, or any person furnishing
or
agreeing to furnish or supply labor, material, supplies, machinery, tools,
or
other equipment in connection with or on account of any and all contracts
referred to in the Bonds; and against any surety or sureties of any
subcontractor, laborer or materialman; and (e) any and all percentages retained
and any and all sums that may be due or hereafter become due on account of
any
and all contracts referred to in the Bonds and all other contracts whether
bonded or not in which the Indemnitors or Principals have an interest; (f)
all
licenses, patents, copyrights and trade secrets; (g) all warehouse receipts,
bills of lading and general intangibles; (h) all tax refunds and claims for
tax
refunds; and (i) all limited partnership and general partnership interests;
but
only in the event of: (1) any abandonment, forfeiture or breach of any contract
referred to in the Bonds or of any breach of any Bond; or (2) a default in
discharging any other Indebtedness or liabilities incurred in connection
therewith, when due; or (3) any breach of the covenants and conditions of this
Agreement or Other Agreements, including but not limited to the failure to
obtain from the Surety written approval of a Change in Control; or (4) an
assignment by any Indemnitor or Principal for the benefit of creditors, or
of
the appointment or any application for the appointment, of a receiver or trustee
for any Indemnitor or Principal whether insolvent or not; or (5) any proceeding
which deprives the Indemnitor or Principal of the use of any of the machinery,
supplies, equipment, plant, tools or material referred to in section (b) of
this
paragraph; or (6) any Indemnitor or Principal’s death, absconding,
disappearance, incompetence, insolvency, conviction of a felony, or
imprisonment, if the Indemnitor or Principal be an individual. Principal(s)
shall further obtain, maintain and assign all proceeds from insurance coverage
as may be required by the Surety from insurance companies acceptable to Surety,
including, as may be applicable, coverage for acts of terrorism. Failure to
obtain or maintain insurance coverages so required by Surety shall be a breach
of this agreement and shall permit Surety to demand cash collateral from
Principal(s) in an amount up to and including the full penal sum of any
outstanding Bond(s).
FOURTH:
UNIFORM COMMERCIAL CODE - This Agreement shall constitute a Security Agreement
to the 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 and may be so used by the Surety without in any way
abrogating, restricting or limiting the rights of the Surety under this
Agreement or under law, or in equity. A carbon, photographic or other
reproduction of this Agreement may be filed as a Financing
Statement.
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FIFTH:
TAKEOVER - In the event of any of the following: breach, default, or termination
asserted by the obligee in any Bond; any Principal’s abandonment of the work or
forfeiture of any contract covered by any Bond, any Principal’s failure to pay
obligations incurred in connection therewith; or if the Principal is an
individual, in the event of the Principal’s death, absconding, disappearance,
incompetence, insolvency, conviction of a felony, or imprisonment; the
bankruptcy of any Principal; the appointment of a receiver or trustee for any
Principal or for the property of any Principal; an assignment for the benefit
of
creditors of any Principal; if any action is taken by or against any Principal
under or by virtue of the Federal Bankruptcy Code; should reorganization or
arrangement proceedings be filed by or against any Principal under said Code;
and/or if any action is taken by or against any Principal under the insolvency
laws of any state, possession or territory of the United States, then the Surety
shall have the right, at its option and in its sole discretion and is hereby
authorized, with or without exercising any other right or option conferred
upon
it by law or under the terms of this Agreement, to take possession of any part
or all of the work under any contract or contracts covered by the Bonds, and
the
Indemnitors hereby agree to use their best efforts to cause the Principal to
permit the Surety to take possession of any part or all of the work under any
contract or contracts covered by the Bonds, at the expense of the Indemnitors
and Principals, to complete or arrange for the completion of the same, and
the
Indemnitors and Principals shall promptly, upon demand, pay to the Surety all
losses, fees, costs and expenses so incurred.
SIXTH:
CHANGES - The Surety is authorized and empowered, without notice to or knowledge
of the Indemnitors or Principals, to assent to any change whatsoever in the
Bonds, and/or any contracts referred to in the Bonds, and/or in the general
conditions, plans and/or specifications accompanying said contracts, including,
but not limited to, any change in the time for the completion of said contracts
and to payments or advances thereunder before the same may be due, and to assent
to or take any assignment or assignments, to execute or consent to the execution
of any continuations, extensions or renewals of the Bonds and to execute any
substitute or substitutes therefor, with the same or different conditions,
provisions and obligees and with the same or larger or smaller penalties, it
being expressly understood and agreed that the Indemnitors shall remain bound
under the terms of this Agreement even though any such assent by the Surety
does
or might substantially increase the liability of said Indemnitors. Indemnitors
further represent and warrant to surety that they are currently informed and
remain informed and apprised of Principal’s or Principals’ business activities,
ventures and financial affairs, including but not limited to the type, size
(single job and/or aggregate program), location and status of projects and
contracts performed by Principal(s) and secured by Bond(s) executed, provided
or
procured by Surety. Surety has no obligation to inform the Indemnitors of any
change in any aspect of Principal(s)’ business activities or financial
affairs.
SEVENTH:
ADVANCES - The Surety is authorized and empowered, in its sole discretion and
without any obligation to do so, to guarantee loans, to advance, or lend to
an
Indemnitor or Principal any money, which the Surety may see fit, for the purpose
of any contracts referred to in, or guaranteed by the Bonds, or pursuant to
any
Other Agreements, and all money so expended, lent, advanced, or loans guaranteed
from time to time to or on behalf of any such Indemnitor or Principal in
connection therewith, including costs of investigation, administration, and/or
in the completion of any contract by the Surety, and any and all other costs
and
expenses incurred by the Surety in relation thereto, unless repaid with interest
at the maximum rate permitted by law by any Indemnitor or Principal to the
Surety when due, shall be presumed to be a loss by the Surety for which the
Indemnitors and Principals shall be responsible notwithstanding that said money
or any part thereof should not be so used by any such Indemnitor or
Principal.
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EIGHTH:
BOOKS AND RECORDS - Principal(s) and Indemnitor(s) shall provide to Surety
within 120 days of their fiscal year end, financial statements prepared in
accordance with Generally Accepted Accounting Principles, and reports prepared
by reputable accounting firms prepared in accordance with the AICPA’s Statements
on Standards for Accounting and Review Services (“SARS”). If principal(s) and/or
Indemnitor(s) have reports prepared by reputable accounting firms in accordance
with the AICPA’s Statements on Auditing Standards in the ordinary course of
their financial reporting, then such reports shall be supplied instead of the
reports in accordance with SARS. Principal(s) and Indemnitor(s) shall also
provide any management letters received from their accountants within 30 days
of
receipt. In addition to the foregoing, at any time, and until such time as
the
liability of the Surety under any and all Bonds is terminated, or the Surety
is
fully reimbursed all amounts due to it under this Agreement or Other Agreements,
the Surety shall have the right of reasonable access to the books, records
and/or accounts of the Indemnitors and Principals for the purpose of inspection,
copying or reproduction; and any financial institution, depository, materialman,
supply house or other person, firm or corporation is hereby specifically
authorized by each Indemnitor and Principal to furnish the Surety, at the
Surety’s request, any information requested including but not limited to,
financial and credit reports relating to the financial condition of the
Indemnitors and/or Principals, and as to any bonded or non-bonded contract
performed, in progress or awarded, the status of the work, the condition of
the
performance of such contracts and payments of accounts. The Indemnitors and
Principals agree to provide any additional releases, requests, waivers or any
other documents required in order to allow the Surety access to the requested
information. Failure to provide the information required in this paragraph
shall
be a breach of this Agreement, and shall entitle Surety to demand in its sole
discretion cash collateral up to the penal sum of any outstanding
Bond(s).
NINTH:
DECLINE EXECUTION - The Surety, at its sole discretion, may decline to execute,
renew or extend any Bond, including final bonds, and may cancel any Bond unless
the Bond states otherwise, and the Indemnitors and Principals agree to make
no
claim to the contrary. If the Surety shall execute a Bid or Proposal Bond,
it
shall have the right to decline to execute any other Bonds that may be required
in connection with any award that may be made under the proposal for which
the
Bid or Proposal Bond is given, and such declination shall not diminish or alter
the liability that may arise by reason of having executed the Bid or Proposal
Bond. The Indemnitors and Principals acknowledge that the Surety makes no
representation as to the validity or acceptability of any Bond to any person,
firm or entity of whatever sort or kind under any contract, and agree that
they
shall have no claim against the Surety arising out of or in any manner relating
to the failure or refusal of any person, firm or entity of whatever sort or
kind
to award any contract to the Principals, or to accept any Bond executed and
delivered by the Surety, or that the Surety has been requested to execute and
delivery.
TENTH:
NOTICE OF EXECUTION - The Indemnitors and Principals hereby waive notice of
the
execution of any Bond, the acceptance of this Agreement or Other Agreements,
and
of any change in surety credit or other fact that might materially alter the
Indemnitors and Principals’ obligations hereunder, and the Indemnitors and
Principals hereby waive all notice of any default, or any other act or acts
giving rise to any claim under any Bond, as well as notice of any and all
liability of the Surety under any Bond, and any and all liability on their
part
hereunder, to the end and effect that, the Indemnitors and Principals shall
be
and continue to be liable hereunder, notwithstanding any notice of any kind
to
which they might have been or be entitled, and notwithstanding any defenses
they
might otherwise have been entitled to make as a result of lack of notice.
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ELEVENTH:
TRUST FUND - The Indemnitors and Principals covenant and agree that all of
their
interest, title and rights in any contract or undertaking referred to in any
Bond, or in, or growing in any manner out of any Bond, including but not limited
to payments for or on account of any contract, shall be held as a trust fund
and/or as a constructive or equitable trust in which the Surety has an interest,
and shall inure to the benefit of the Surety for any liability or loss it may
have or sustain under any Bond including but not limited to the payment of
obligations incurred in the performance of any contract and for labor,
materials, and services furnished in the prosecution of the work provided in
any
contract or any authorized extension or modification thereof, and, further,
it
is expressly understood and declared that all monies due and to become due
under
any contract covered by any Bond are trust funds, whether in the possession
of
the Indemnitors or Principals or otherwise, for the benefit of and for payment
of all such obligations in connection with any such contract for which the
Surety would be liable under any Bond, said trust also inures to the benefit
of
the Surety for any liability or loss it may have or sustain under any Bond,
under this Agreement, or under any Other Agreements, and this Agreement
constitutes notice of such trust.
TWELFTH:
HOMESTEAD - To the extent permitted by applicable law, the Indemnitors and
Principals hereby waive, so far as their respective obligations under this
Agreement are concerned, all rights to claim any of their property including
their respective homesteads, as exempt from levy, execution, sale or other
legal
process under the laws of any state, territory or possession.
THIRTEENTH:
SETTLEMENTS - The Surety shall have the right, at its option and sole
discretion, to adjust, settle or compromise any claim, demand, suit or judgment
upon any Bond, unless any Indemnitor or Principal, providing a reasonable legal
basis therefor, 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.
FOURTEENTH:
SURETIES - In the event the Surety procures the execution of any Bond by other
sureties, or executes any Bond with co-sureties, or reinsures any portion of
any
Bond with reinsuring sureties, then all the terms and conditions of this
Agreement shall inure also to the benefit of such other sureties, co-sureties
and reinsuring sureties, their successors and assigns, as their interests may
appear.
FIFTEENTH:
SUITS - Separate suits may be brought hereunder as causes of action accrue,
and
the bringing of suit or the recovery of judgment upon any cause of action shall
not prejudice or bar the bringing of other suits upon other causes of action,
whether theretofore or thereafter arising.
SIXTEENTH:
OTHER INDEMNITY - The addition to this Agreement of any Indemnitor, including
any entities acquired after the date of execution of this Agreement, may be
effected by written amendment executed by such Indemnitor only, notwithstanding
any language herein to the contrary. The Indemnitors and Principals shall
continue to remain bound under the terms of the Agreement, Other Agreements,
and
any other agreements containing indemnity obligations, even though the Surety
may from time to time heretofore or hereafter, with or without notice to or
knowledge of the Indemnitors and Principals, accept, release, or reduce any
indemnity obligations or collateral of current or future Indemnitors and
Principals for any reason, The Indemnitors and Principals expressly waive notice
from the Surety of any such action and, furthermore, it is explicitly understood
and agreed by the Indemnitors and Principals that any and all other rights
which
the Surety may have or acquire against the Indemnitors and Principals and/or
others under any such agreements or additional agreements or collateral shall
be
in addition to, and not in lieu of, the rights afforded the Surety under this
Agreement. No Indemnitor shall make any defense to the enforcement of this
Agreement based on the execution of Other Agreements or related to the addition
or the release of any Indemnitor, and each Indemnitor explicitly confirms its
joint and several liability for Bonds issued by the Surety as provided in this
Agreement. Principals and Indemnitors also waive and subordinate all rights
of
indemnity, subrogation and contribution against each other until all obligations
to the Surety under the agreement, at law or in equity, have been satisfied
in
full.
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SEVENTEENTH:
INVALIDITY - Invalidity of any provision of this Agreement by reason of the
laws
of any jurisdiction shall not render the other provisions hereof invalid. In
case any of the parties set forth in this Agreement fail to execute the same,
or
in case the execution hereof by any of the parties be defective or invalid
for
any reason, including lack of authority to bind any party, such failure, defect
or invalidity shall not in any manner affect the validity of this Agreement
or
the liability hereunder of any of the parties executing the same, but each
and
every party so executing shall be and remain fully bound and liable hereunder
to
the same extent as if such failure, defect or invalidity had not existed. Each
party agrees to execute promptly any documentation necessary to cure any such
failure, defect or invalidity. It is understood and agreed by the Indemnitors
and Principals that the rights, powers, and remedies given the Surety under
this
Agreement shall be and are in 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 and Principals or others whether by the terms of any other agreement
or by operation of law or otherwise.
EIGHTEENTH:
ATTORNEY-IN-FACT - The Indemnitors and Principals hereby irrevocably nominate,
constitute, appoint and designate the Surety as their attorney-in-fact with
the
full right and authority, but not the obligation, to exercise all the rights
of
the Indemnitors and Principals assigned, transferred and set over to the Surety
in this Agreement, with full power and authority to execute on behalf of and
sign the name of any Indemnitor and/or Principal to any voucher, financing
statement, release, satisfaction, check, xxxx of sale of all or any property
by
this Agreement assigned to the Surety, or other documents or papers 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 and Principals hereby ratify and confirm all acts
and
actions taken and done by the Surety as such attorney-in-fact and agree to
protect and hold harmless the Surety for acts herein granted as
attorney-in-fact.
NINETEENTH:
TERMINATION - Any Indemnitor may terminate its liability under this Agreement
upon twenty days’ written notice sent by registered and certified mail or
courier requiring proof of delivery signature to the Surety, in care of Liberty
Bond Services, Interchange Corporate Center, 000 Xxxxxxxx Xxxx, Xxxxx 000,
Xxxxxxxx Xxxxxxx, XX 00000-0000, but any such notice of termination shall not
operate to modify, bar, or discharge Indemnitors or Principals as to any Bonds
(a) that may have been executed or authorized prior to the expiration of the
notice period; (b) which may be executed after the expiration of the notice
period in fulfillment of any commitment given by the Surety prior to the
expiration of such notice period; (c) executed in connection with any project
as
to which any bid bond was executed or authorized prior to the expiration of
such
notice period; and/or (d) which are renewed, extended, substituted or modified
after the expiration of such notice period. Such termination of liability as
to
any Indemnitor or Principal in no way affects the obligation of any other
Indemnitor or Principal who has not given notice as herein
provided.
TWENTIETH:
AMENDMENTS - This Agreement may not be changed or modified orally. No change
or
modification shall be effective unless made by written amendment executed to
form a part hereof.
TWENTY-FIRST:
JURISDICTION - As to any legal action or proceeding related to this Agreement,
the Indemnitors and Principals consent to the general jurisdiction of any local,
state or Federal court of the United States or its territories having proper
subject matter jurisdiction or in any court of the United States or its
territories in which any claim may be brought against the Surety under any
Bonds, and waive any claim or defense in any such action or proceeding based
on
any alleged lack of personal jurisdiction, improper venue, forum non conveniens
or any similar basis, Indemnitors and Principals further waive personal service
or any and all process.
TWENTY-SECOND:
CURRENCY EXCHANGE - Should the Surety, when making any payment or incurring
any
expense directly or indirectly related to Bonds expend funds in currencies
other
than U.S. Dollars, then Indemnitors shall either reimburse the Surety in U.S.
Dollars equal to the amount expended by the Surety at the time the foreign
currency was purchased or shall defray the cost of any exchange variation,
thereby indemnifying the Surety for any decrease in the valuation of the
currency purchased.
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TWENTY-THIRD:
CHANGE IN CONTROL - The Indemnitors agree to provide the Surety with, at least,
forty five (45) days prior written notice of a Change in Control (defined below)
and to designate the name and address of the Indemnitor with whom the Surety
should correspond with respect to this paragraph, which Indemnitor, all
Indemnitors agree is designated to act on behalf of them pursuant to this
paragraph. Upon receipt of such notice, the Surety shall advise the Indemnitor
designated above, in writing, of its election to (i) approve such Change in
Control or (ii) demand that the Indemnitors’ procure the discharge of the Surety
from any Bonds and all liability by reason thereof. If the Indemnitors fail
to
give the Surety timely notice of a Change in Control or if the Surety does
not
approve the Change in Control and if such discharge is not procured to the
sole
satisfaction of the Surety then, immediately, upon the Surety’s written demand,
the Indemnitors shall deposit a sum of money or collateral, of a type and value
satisfactory to the Surety, equal to the aggregate penal sum of the then
outstanding Bonds, as determined by the Surety in its sole discretion. The
Surety shall send its written demand to the Indemnitor designated above by
overnight courier or by registered or certified mail. The Indemnitors hereby
acknowledge that if they or any one of them breaches the obligations set forth
in this paragraph, the Surety will not have an adequate remedy at law, will
suffer irreparable harm and shall be entitled to injunctive relief, enforcing
the terms of this paragraph, as well as a final decree, order or judgment
granting Surety specific performance of the terms of this
Agreement.
“Change
in Control” shall mean: (a) the transfer, merger or consolidation (in one
transaction or a series of transactions) of all or substantially all of the
assets of any non-individual Principal or Indemnitor; (b) the acquisition (in
one transaction or a series of transactions) by any person or group, directly
or
indirectly, of fifty (50%) percent or more of the beneficial ownership or
control of any Principal or Indemnitor; or (c) the acquisition by any Principal
or Indemnitor, directly or indirectly, of fifty (50%) percent or more of the
beneficial ownership or control in any joint venture, subsidiary, division,
affiliate, limited partnership, limited liability partnership, limited liability
company or other entity through the issuance of ten (10%) percent or more of
the
voting power of the total outstanding voting stock of any Principal or
Indemnitor.
TWENTY-FOURTH:
DOMESTIC PRINCIPAL DOING FOREIGN CONTRACTS/ GOVERNING LAW - The Indemnitors
and
Principals hereby agree that as to any legal action or proceeding related to
any
Bond(s) issued in connection with contracts to be performed outside the United
States and its territories, this Agreement shall be governed by and construed
in
accordance with the laws of the State of New York (without giving effect to
the
conflict of laws principles thereof), except to the extent superseded by Federal
law.
8
DATED
as
of this ____ day of __________, 2004
By
affixing their signatures hereto, each Indemnitor signing on behalf of a
business entity warrants that each is duly authorized by Indemnitor to bind
Indemnitor to this Agreement:
|
Witness/Attest:
/s/ Xxxx
X. Xxxxxxxxxx
Xxxx
X. Xxxxxxxxxx
SVP,
Secretary, Treasurer
|
Primoris
Corporation
Tax
ID 83-037-7797
00000
Xxxxxxxxxxxx Xxxxx
Xxxx
Xxxxxx, XX 00000
By:
/s/
Xxxx X. Xxxxxxx
(Seal)
Xxxx
X. Xxxxxxx
President
|
|
Witness/Attest:
/s/ Xxxx
X. Xxxxxxxxxx
Xxxx
X. Xxxxxxxxxx
SVP,
Secretary, Treasurer
|
ARB,
Inc.
Tax
ID 00-000-0000
00000
Xxxxxxxxxxxx Xxxxx
Xxxx
Xxxxxx, XX 00000
By:
/s/
Xxxx X. Xxxxxxx
(Seal)
Xxxx
X. Xxxxxxx
President
|
|
Witness/Attest:
/s/ Xxxxxx
Xxxxxxxx
Xxxxxx
Xxxxxxxx
CFO,
Secretary, Treasurer
|
ARB,
Inc.
Tax
ID 00-000-0000
00000
Xxxxxxxxxxxx Xxxxx
Xxxx
Xxxxxx, XX 00000
By:
/s/
Xxxx X. Xxxxxxx
(Seal)
Xxxx
X. Xxxxxxx
President
|
|
Witness/Attest:
/s/ Xxxxx
Xxxxxxx
Xxxxx
Xxxxxxx
Secretary
|
Onquest,
Inc.
Tax
ID 30-004-3099
00000
Xxxxxxxxxxxx Xxxxx
Xxxx
Xxxxxx, XX 00000
By:
/s/
Xxxx Xxxxx
(Seal)
Xxxx
Xxxxx
President
& CEO
|
|
Witness/Attest:
/s/ Xxxxx
Xxxxxx
Xxxxx
Xxxxxx
Secretary,
Treasurer
|
Cardinal
Contractors, Inc.
Tax
ID
00000
Xxxxxxxxxxxx Xxxxx
Xxxx
Xxxxxx, XX 00000
By:
/s/
Xxxxxxx X. XxXxxxxx
(Seal)
Xxxxxxx
X. XxXxxxxx
President
& CEO
|
9
