EXHIBIT 10.35
INDEMNITY AGREEMENT
This Agreement is made and entered into by the undersigned Indemnitor
(Indemnitors) in favor of ACSTAR Insurance Company, 000 Xxxx Xxxxxx, Xxx
Xxxxxxx, XX 00000-0000 (Surety) for the purpose of inducing Surety to furnish
Bonds.
WHEREAS, in the transaction of business, certain bonds, undertakings and other
writings obligatory in the nature of a bond may have heretofore been, and may
hereafter be, required by, for, or on behalf of the Indemnitors or any one or
more of the Indemnitors, in whose bonds and undertakings the Indemnitors do
hereby affirm to have a substantial material and beneficial interest, and as a
condition precedent to the execution of any and all such bonds, the Surety
requires execution of this Indemnity Agreement.
WHEREAS, the Indemnitors have or may have a substantial, material and beneficial
interest in the obtaining of said bonds on behalf of various related companies,
it is agreed that this Agreement shall apply to any bonds executed on behalf of
any subsidiary, affiliated partnership, joint venture or corporation of the
Indemnitors, now existing or hereafter formed or acquired, and whether partially
or wholly owned or controlled, as fully as if the names and signatures of such
subsidiary or affiliates appeared herein as Indemnitors.
NOW, THEREFORE, in consideration of the foregoing premises, and of the execution
or continuance of such bonds and undertakings, and for other good and valuable
considerations the Indemnitors do, for themselves, their heirs, executors,
administrators and assigns jointly and severally agree with the Surety as
follows:
(1) The Indemnitors will pay, when due, all premiums for each of such bonds
in accordance with the Surety's rates in effect on the date each of
such bonds become 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.
(2) The Indemnitors will (a) perform all the conditions of each said bond
or obligation, and any and all alterations, modifications, renewals,
continuations, and extensions thereof, and (b) indemnify and save the
Surety harmless from and against any and all liability, loss, costs,
damages, fees of attorneys and other expenses which the Surety may
sustain or incur by reason or in consequence of the execution of such
bond or bonds and any renewal, continuation or successor thereof,
including but not limited to (i) sums paid or liabilities incurred in
settlement of, and expenses paid or incurred in connection with
claims, suits or judgments under such bonds, or (ii) expenses paid or
incurred (A) in enforcing the terms hereof, (B) in procuring or
attempting to procure release from liability, or (C) in recovering or
attempting to recover losses or expenses paid or incurred as
aforesaid. In the event of payments by the Surety, the Indemnitors
agree to accept the voucher of the Surety or other evidence of such
payments as prima facie evidence of the propriety thereof, and of the
Indemnitor's liability therefor to the Surety.
(3) If the Surety shall set up a reserve to cover any claim, liability,
suit or judgment under any such bond, the Indemnitors will, immediately
upon demand, deposit with the Surety a sum of money equal to such
reserve and any increase thereof as collateral security on such bond or
bonds. Such sum and any other money or property which shall have
been, or shall hereafter be, pledged as collateral security on any
such bond or bonds shall, unless otherwise agreed in writing by the
Surety, 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.
(4) The Surety, in its sole discretion, is authorized but not required,
a)to consent to any change in the contract or the contract documents
including the plans and specifications, b) to make or guarantee
advances or loans for the purposes of executing the contract without
any obligation to see to the application thereof, it being understood
that the amount of all such advances or loans shall be conclusively
presumed to be a loss hereunder for which the Indemnitors are liable,
and c) in the event of any breach, delay or default asserted by the
obligee in any said bonds, or in the performance of the contract, or a
breach of this Agreement or of any bond or bonds connected therewith,
or the failure to diligently prosecute the work under any contract, or
a breach of this Agreement or of any bond or bonds connected therewith,
or the failure to diligently prosecute the work under any contract,
or to pay for labor and materials used 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, 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. The Indemnitors hereby release and
discharge the Surety from any and all liability for all its actions
and omissions.
(5) The Indemnitors hereby transfer, assign, pledge and convey to the
Surety a security interest in 1) all equipment, tools, and material in
which the Indemnitor have any interest, whether on site or elsewhere or
on order, 2) all sums due or to become due to Indemnitors or any of
them in connection with any contract, and 3) all subcontracts let by
Indemnitors in connection with any contract. The security interests
granted herein are effective in the case of each contract as of the
date of the contract. Indemnitors hereby agree to execute any form of
financing statement or other agreement or writing which Surety, in its
sole discretion, deems necessary or advisable to perfect the security
interests granted herein, and further authorize Surety at its
discretion and at any time to file or serve this instrument, or a
true copy hereof, or any other instrument executed pursuant hereto as
a financing statement or other notice under the Uniform Commercial
Code or any similar law, and Indemnitors authorize Surety to complete
this instrument in any manner required for such use, and to prepare
an attached schedule describing items of security covered hereunder.
The Indemnitors hereby appoint Surety as Attorney-In-Fact for each of
them to endorse and to deposit or negotiate checks, drafts and all
similar instruments payable to Indemnitors, with the right, but not
the obligation to exercise all of the rights of the Indemnitors
assigned, transferred and set over to the Surety in this Agreement
and in the name of the Indemnitors to make, execute and deliver any
and all additional assignments, documents as deemed necessary and
proper by the Surety to give full force and effect to this paragraph
(5). The Indemnitors agree that all equipment, tools, and material
and all subcontracts are dedicated to the performance of the contract
to which they pertain and that such equipment, tools and material and
subcontracts shall be subject to a trust in favor of the contract
owner and Surety and that they be used to that end.
(6) The Surety shall have the exclusive right to determine for itself and
the Indemnitors whether any claim or suit brought against the Surety or
the principal upon any such bond shall be settled or defended and the
Surety's decision shall be final and binding upon the Indemnitors.
(7) If any of the bonds are executed in connection with a contract which by
its terms or by law prohibits the assignment of the contract price or
any part thereof, Indemnitors covenant and agree that all payments due
or received for or on account of said contract shall be held in trust
for Surety for the payment of obligations incurred in the performance
of the contract and for labor, materials, and services furnished in the
prosecution of the work provided in such contract or any authorized
extension or modification thereof, and, further, it is expressly
understood that all monies due and to become due under any contact or
contracts covered by the bonds shall be held in trust, whether such
monies are in the possession of the Indemnitors or otherwise, for the
benefit of and for payment of all such obligations in connection with
any such contract or contracts for which the Surety would be liable
under any of said bonds.
(8) The Surety may, without incurring any liability, decline to execute any
bond and if the Surety executed a bid or proposal bond it shall have
the right to decline to execute any and all of the 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 of the
Indemnitors that may arise by reason of having executed the bid or
proposal bond.
(9) The Indemnitors hereby waive notice of the execution of any such bonds
or of any act, fact or information coming to the knowledge or notice of
the Surety concerning or affecting its right or liabilities under any
such bonds or rights or liabilities of the Indemnitors hereunder,
notice of all such being hereby expressly waived.
(10) If the Surety shall procure any other company or companies to execute
or join with it in executing, or to reinsure any such bond or 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 the event, the work "Surety", wherever used
herein, shall be deemed to include such company or companies, as
their respective interest may appear.
(11) The Indemnitors hereby waive 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.
(12) In the event any claim or demand is made by the Surety against
Indemnitors, or any one or more of them, by reason of the execution of
a bond or bonds, the Surety is hereby expressly authorized to settle
with any one or more of the Indemnitors individually, and with
reference to the others, and such settlement or composition shall not
affect the liability of any of the others, and the Indemnitors hereby
expressly waive the right to be discharged and released by reason of
the release of any one or more of the Indemnitors and hereby consent
to any settlement or compromise that may hereafter be made. 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 or bar the bringing of other suits upon other causes of
action whether therefore of thereafter arising.
(13) In the event any Indemnitor fails to execute this Agreement or in the
event the execution hereof by any Indemnitor be defective or invalid
for any reason, such failure, defect, or invalidity shall not in any
manner affect the validity of this Agreement or the liability of any
other Indemnitor executing the same, but each and every party so
executing shall be and remain fully bound and liable.
(14) This Agreement may be terminated by any Indemnitor upon twenty days
written notice received by the Surety but any such notice of
termination shall not operate to modify, bar or discharge the
Indemnitors as to the bonds that may have been theretofore executed.
(15) This Agreement may not be changed or modified orally. No change or
modification shall be effective unless make by written endorsement
executed by the Surety and the Indemnitors to form a part hereof.
(16) The Indemnitors agree to notify the Surety immediately upon their
receiving any notice or knowledge that their liability insurance has
been or will be cancelled or non-renewed, or that such coverage is or
will be reduced.
(17) At any time, and until such time as liability of the Surety under any
and all said Bonds is terminated, the Surety shall have the right to
reasonable access to the books, records and accounts of the Indemnitor
and Indemnitors, and any bank depository, materialman, supply house, or
other person, firm or corporation when requested by the Surety is
hereby authorized to furnish the Surety any information requested
including by not limited to, the status of the work under contracts
being performed by the Indemnitor, the condition of the performance
of such contracts and payments or accounts.
(18) The word indemnitor or pronouns referring to said word, whether
singular or plural, are to be construed as referring to each of the
undersigned Indemnitors, individually and collectively, though the
Indemnitor be one or more individuals, partnerships, associations, or
corporations.
IN TESTIMONY WHEREOF the Indemnitors intending to be legally bound hereby have
hereunto set their hands and affixed their seals this 12th day of August, 1992.
Witness or Attest
Name of Individual, (Type) Xxxxxx Xxxx Address
Signature: /s/ Xxxxxx Xxxx 00000 Xxxxxxxx Xxxxx
Xxxxxxx, Xx. 00000
Name of Individual, (Type) Xxxxx Xxxx Address
Signature: /s/ Xxxxx Xxxx 00000 Xxxxxxxx Xxxxx
Xxxxxxx, Xx. 00000
Name of Company (Type): Allied Technology Group, Inc.
Signature: /s/ Xxxxxx Xxxx
Name: Xxxxxx Xxxx 00000 Xxxxxxx Xxxx.
Title: President Xxxxxxx, XX 00000
Name of Company (Type): National Safety Consultants, Inc.
dba: Radiation Services, Inc.
Signature: /s/ Xxxxxx Xxxx
Name: Xxxxxx Xxxx 00000 Xxxxxxx Xxxx.
Title: President Xxxxxxx, XX 00000
INDIVIDUAL(S) ACKNOWLEDGMENT
STATE OF California )
)
COUNTY OF Alameda )
On this 12th day of August, 1992, before me personally came Xxxxxx Xxxx, to me
known and known to me to be the individual(s) who executed the foregoing
instrument, and acknowledged that she executed same.
/s/ X. xx Xxxxxxx
X. xx Xxxxxxx [SEAL]
INDIVIDUAL(S) ACKNOWLEDGMENT
STATE OF California )
)
COUNTY OF Alameda )
On this 12th day of August, 1992, before me personally came Xxxxx Xxxx, to me
known and known to me to be the individual(s) who executed the foregoing
instrument, and acknowledged that he executed same.
/s/ X. xx Xxxxxxx
X. xx Xxxxxxx [SEAL]
CORPORATE ACKNOWLEDGMENT(S)
STATE OF California )
)
COUNTY OF Alameda )
On this 12th day of August, 1992, before me personally came Xxxxxx Xxxx, to me
known, who, being by me duly sworn, did depose and say that [s]he resides in
Fremont, CA that [s]he is the president of the Allied Technology Group, Inc. the
corporation which executed the foregoing instrument; that [s]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 [s]he signed his/her name to said instrument by like
order.
/s/ X. xx Xxxxxxx
X. xx Xxxxxxx [SEAL]
CORPORATE ACKNOWLEDGMENT(S)
STATE OF California )
)
COUNTY OF Alameda )
On this 12th day of August, 1992, before me personally came Xxxxxx Xxxx, to me
known, who, being by me duly sworn, did depose and say that [s]he resides in
Fremont, CA that [s]he is the president of the National Safety Consultants, Inc.
the corporation which executed the foregoing instrument; that [s]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 [s]he signed his/her name to said instrument
by like order.
/s/ X. xx Xxxxxxx
X. xx Xxxxxxx [SEAL]
