EXHIBIT 10.18
GENERAL AGREEMENT OF INDEMNITY
THIS General Agreement of Indemnity (hereinafter called Agreement), made and
entered into this ___ day of ________________, 2003 by Xxxxxx Xxx Xxxxxx as
Individual Surety & the undersigned as PRINCIPAL and INDEMNITORS, and
(_______________) Corporately & (_______________) individually.
WHEREAS, the PRINCIPAL, in the performance of contracts and the fulfillment of
obligations generally, whether solely in its own name or as co-venturer with
others, may desire, or be required, to give or procure certain BONDS; and,
WHEREAS, at the request of the PRINCIPAL and the INDEMNITORS and upon the
express understanding that this Agreement should be given, the SURETY has
executed or procured to be executed, and may from time to time hereafter execute
or procure to be executed, said BONDS on behalf of the PRINCIPAL; and,
WHEREAS, the INDEMNITORS have a substantial, material or beneficial interest in
the obtaining, renewing, continuing or substituting of the BONDS; and,
WHEREAS, SURETY has relied upon and will continue to rely upon the
representations of PRINCIPAL and INDEMNITORS as to their character, identity,
control, beneficial ownership, financial condition and existence in executing or
procuring BONDS;
NOW THEREFORE, in consideration of the above stated premises, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by PRINCIPAL and each of the INDEMNITORS, the PRINCIPAL and
INDEMNITORS 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:
I. DEFINITIONS. Wherever they appear in this Agreement, the following terms
are defined as set forth in this section:
X. XXXX means an undertaking, a contract of surety ship, guaranty or
indemnity, an agreement, consent or letter to provide such an undertaking
or contract, before or after the date of this Agreement, and the
continuation, extension, alteration, renewal or substitution of such an
undertaking, contract, agreement, consent or letter, whether with the
same or different penalties and conditions, executed, provided, or
procured by the SURETY.
B. CONTRACT means an agreement between PRINCIPAL and a third party,
together with all associated documents (including but not limited to
general and special conditions, specifications and drawings) for which
SURETY executes or procures the execution of a BOND.
C. PRINCIPAL means any one, combination of, or all of the named
individuals, firms or corporations set forth below as PRINCIPAL including
any of their present or future subsidiary corporations and any
corporations or other persons or entities with which they may now or
hereafter be controlled or affiliated, or their successors in interest,
whether alone or in joint venture with others not named herein, including
any such entity for which SURETY executes BONDS.
D. INDEMNITOR means any one, combination of, or all of the named
individuals, firms or corporations set forth below as INDEMNITOR(S)
including any of their present or future subsidiary corporations and any
corporations or other persons or entities with which they may now or
hereafter be controlled or affiliated, or their successors in interest,
whether alone or in joint venture with others not named herein, including
any such person or entity who hereafter agrees to become an INDEMNITOR
under this Agreement.
E. SURETY means Global Risk Management, its reinsurers, and any other
person(s) or entity(ies) which the SURETY may procure to act as a SURETY
or as a co-surety of any BOND, or any other person or entity who executes
a BOND at the request of the SURETY, and the successors, assigns,
affiliates, associates and subsidiary companies of any of the foregoing.
F. EVENT OF DEFAULT means any one or more of the following: (i) Any
declaration of default by an obligee on any BOND, or any actual or
alleged abandonment, forfeiture, or breach of, or failure, refusal or
inability to perform, any CONTRACT or obligation contained in a BOND, or
the filing of any suit or commencement of any action or proceeding by a
creditor or obligee of an obligation against PRINCIPAL or any INDEMNITOR,
or any suspension, revocation or other material adverse change in the
status of any license, permit or other right or permission to bid or
perform work of PRINCIPAL with any applicable licensing board or agency;
(ii) Any actual or alleged failure, delay, refusal or inability of the
PRINCIPAL to pay claims, bills or other indebtedness incurred in, or in
connection with, the performance of any CONTRACT; (iii) The actual or
alleged failure to perform, or comply with, any of the terms, covenants,
conditions or obligations in this Agreement, or of any BOND or obligation
issued by SURETY pursuant to this Agreement, including the failure to pay
or discharge, when due, any indebtedness or other obligation of the
PRINCIPAL to the SURETY, and the failure of PRINCIPAL or any INDEMNITOR
to promptly furnish accurate, complete and up-to-date financial
statements or other information upon request of SURETY, or the furnishing
of a financial statement or other information by PRINCIPAL or any
INDEMNITOR which contains any material misstatement or misrepresentation,
or which fails to contain information necessary for an accurate
presentation of PRINCIPAL'S or any INDEMNITOR'S financial condition; (iv)
an assignment by the PRINCIPAL or any INDEMNITOR for the benefit of
creditors, or the appointment, or an application by the PRINCIPAL or any
INDEMNITOR for the appointment, of a receiver or trustee for the
PRINCIPAL or any INDEMNITOR or their property, whether insolvent or not,
or an application by the PRINCIPAL or any INDEMNITOR for reorganization
or arrangement under any bankruptcy laws of the United States or of any
State, possession or territory of the United States, or if proceedings
for the appointment of a receiver or trustee, for liquidation of, for the
reorganization or arrangement of the PRINCIPAL or any INDEMNITOR shall be
initiated by other persons; (v) If the PRINCIPAL or any INDEMNITOR is an
individual, the PRINCIPAL'S or INDEMNITOR'S dying, absconding,
disappearing, incompetency, being convicted of a felony or imprisoned,
becoming a fugitive from justice, or marrying (without the spouse
becoming an INDEMNITOR); or, if the PRINCIPAL or INDEMNITOR is any other
type of entity, any change or threat of change in the character,
identity, control, arrangement, management, beneficial ownership or
existence of the PRINCIPAL or INDEMNITOR, any discontinuation or
cessation of operations, being convicted of a felony, being debarred from
bidding on any federal, state or local governmental projects, any
material adverse change in the financial condition of the PRINCIPAL or
any INDEMNITOR or any transfer of assets, by PRINCIPAL or INDEMNITOR, not
in the ordinary course of business to a person or entity not an
INDEMNITOR; (vi) Any proceeding or the exercise of any rights by any
individual or entity, including PRINCIPAL or any INDEMNITOR, which
deprives or impairs PRINCIPAL'S use of its plant, machinery, equipment,
plans, drawings, tools, supplies or materials; (vii) The happening of any
event other than those specified in (i) through (vi) which, in the
SURETY'S sole opinion, may expose SURETY to loss, cost or expense.
INITIALS:_______________________________ PAGE 1 OF 8 PAGES
II. INDEMNITY AND HOLD HARMLESS.
A. The PRINCIPAL and INDEMNITORS, jointly and severally, shall exonerate,
hold harmless, indemnify and keep indemnified the SURETY from and against
any and all claims, demands, liability, losses, costs, and expenses of
whatsoever kind or nature, including court costs, attorneys' fees,
adjusting costs and investigative costs, and from and against any and all
other such losses and expenses which the SURETY may sustain, suffer or
incur: (i) By reason of having executed or procured the execution of
BONDS; (ii) By reason of the failure of the PRINCIPAL or INDEMNITORS to
perform or comply with any of the covenants or conditions of this
Agreement, including but not limited to the payment of all premiums due
for BONDS; (iii) In enforcing any of the covenants, obligations or
conditions of this Agreement; (iv) In making any investigation, obtaining
or attempting to obtain a release under or exoneration of a BOND or of
PRINCIPAL or SURETY, or recovering or attempting to recover loss or
expense paid or unpaid bond premium in connection with this Agreement or
any BOND; (v) In prosecuting or defending any action or claim in
connection with any BOND, whether SURETY at its sole option elects to
employ its own counsel, or permits or requires PRINCIPAL and INDEMNITORS
to make arrangements for the SURETY'S legal representation; (vi) By
reason of the occurrence of any Event of Default by PRINCIPAL or any
INDEMNITOR; (vii) As a result of liability incurred or amounts paid in
satisfaction or settlement of any or all claims, demands, damages, costs,
losses, suits, proceedings or judgments relating to the PRINCIPAL'S
non-performance of an obligation, CONTRACT, or any other matter under or
covered by a BOND; (viii) As a result of liability incurred or expenses
paid in connection with claims, suits or judgments relating to an
obligation, CONTRACT, or a BOND, including, without limitation,
attorney's fees and all legal expenses, including in-house attorney's
fees, adjusting fees or investigative fees, and all fees and costs for
investigation, accounting, adjusting, engineering or other professional
services related to the adjustment of claims and losses deemed necessary
or appropriate in the sole discretion of SURETY.
B. Payment shall be made to the SURETY by the PRINCIPAL and INDEMNITORS
as soon as liability exists or is asserted against the SURETY, or upon
the demand of SURETY, whether or not the SURETY shall have made any
payment therefore. Such payment shall be either equal to the amount of
any reserve set by the SURETY, or equal to such amount as the SURETY, in
its sole judgment, shall deem sufficient to protect it from loss. The
SURETY shallhave the right to use the payment, or any part thereof, in
payment or settlement of any liability, loss, cost or expense for which
PRINCIPAL or the INDEMNITORS would be obligated to indemnify the SURETY
under the terms of this Agreement.
C. In the event of any payment by the SURETY, the PRINCIPAL and
INDEMNITORS further agree that in any accounting between the SURETY and
the PRINCIPAL, or between the SURETY and the INDEMNITORS, or either or
both of them, the SURETY shall be entitled to reimbursement for any and
all disbursements made by it in good faith in and about the matters
contemplated by this Agreement under the belief that it is or was liable
for the sums and amounts so disbursed, or that it was necessary or
expedient to make such disbursements, whetheror 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 of PRINCIPAL and
INDEMNITORS to the SURETY. Inaddition to the payments to be made to
SURETY as set forth above, PRINCIPAL and INDEMNITORS agree to pay to
SURETY interest on all disbursements made by SURETY at the maximum rate
permitted by law calculated from the date of each disbursement.
III. ASSIGNMENT.
A. The PRINCIPAL, and the INDEMNITORS as their interests may appear in
the following subsections of this paragraph, hereby assign, transfer,
pledge and set over to SURETY effective as of the effective date of each
BOND executed by SURETY, the rights and property described hereafter, as
collateral, to secure any and all obligations in this Agreement and any
other indebtedness or liabilities of the PRINCIPAL or INDEMNITORS to the
SURETY, whether heretofore or hereafter incurred: (i) All the rights of
the PRINCIPAL or INDEMNITORS in, and arising in any manner out of any
CONTRACT; (ii) All the right, title and interest of the PRINCIPAL or
INDEMNITORS in and to all machinery, equipment, plant, tools, inventory
and materials which are now, or may hereafter be utilized in connection
with any CONTRACT, regardless of whether they are located at a
construction site, in storage elsewhere, or in transit anywhere; (iii)
All the right, title and interest of the PRINCIPAL or INDEMNITOR in and
to all subcontracts and purchase orders let or to be let in connection
with any CONTRACT and in and to all surety bonds supporting such
subcontracts or purchase orders; (iv) All the right, title and interest
of the PRINCIPAL or INDEMNITORS in and to any actions, causes of action,
claims or demands whatsoever which the PRINCIPAL or INDEMNITORS may have
or acquire against any party to any CONTRACT, or actions, causes of
action, claims or demands arising out of or in connection with any
CONTRACT including but not limited to those against obliges on bonds,
design professionals, general contractors, subcontractors, laborers or
materialmen or any person furnishing or agreeing to furnish or supply
labor, material, supplies, machinery, tools, inventory or other equipment
in connection with or onaccount of any CONTRACT and against any surety or
sureties of any obligee, general PRINCIPAL, subcontractor, laborer, or
materialmen; (v) All monies retained and any and all monies that may be
due or which hereafter become due on account of any CONTRACT,bonded or
unbonded, or on any promissory note or account receivable; (vi) Any and
all right, 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; (vii) All monies due or tobecome due to PRINCIPAL or INDEMNITORS on
any policy of insurance relating to any claims arising out of the
performance of any CONTRACT, including, but not limited to, claims under
builders risk, liability, fire, employee dishonesty or workers
compensationinsurance policies, including premium refunds; and (viii) Any
and all undisbursed loan funds, deposits or interest reserve accounts to
which PRINCIPAL or INDEMNITORS may be entitled, and any and all
collateral for and undertakings given by the PRINCIPAL or INDEMNITORS in
connection with any CONTRACT or obligation.
B. SURETY shall have the full and exclusive right (but not the
obligation), in its name or in the name of the PRINCIPAL or INDEMNITORS,
to prosecute, compromise, release or otherwise resolve any of the claims,
causes of action or other rights assigned to SURETY, upon such terms as
SURETY, in its sole discretion shall deem appropriate.
C. The PRINCIPAL and INDEMNITORS hereby irrevocably nominate, constitute,
appoint and designate the SURETY, or its designee(s), through its or
their authorized representative(s), as their attorney-in-fact with the
right, but not the obligation, to exercise all of the rights of the
PRINCIPAL and INDEMNITORS assigned, transferred and set over to SURETY in
this Agreement,and in the name of the PRINCIPAL and INDEMNITORS to make,
execute, and deliver any and all additional or other assignments,
documents, papers, checks, drafts, warrants or other instruments made or
issued in payment of any obligation to which SURETY has theright to
receipt of payment pursuant to this Agreement deemed necessary and proper
by the SURETY in order to give full effect not only to the intent and
meaning of the assignments made in this Agreement, but also to the full
protection intended to be herein given to the SURETY under all other
provisions of this Agreement. The PRINCIPAL and INDEMNITORS hereby ratify
and confirm all acts and actions taken and done by SURETY or its
designee(s) as such attorney-in-fact.
IV. RESERVE DEPOSIT.
A. If principle defaults on a contract or has a material adverse change
to its financial condition, SURETY shall deem it necessary to establish
or to increase a reserve to cover any possible liability or loss for
which the PRINCIPAL or INDEMNITORS will be obligated to indemnify SURETY
under the terms of this Agreement, or to establish a collateral depositin
connection with the issuance or procurement of any BOND for PRINCIPAL,
the PRINCIPAL or INDEMNITORS will deposit with SURETY, immediately upon
demand, a sum of money equal to such reserve and any increase thereof as
collateral security to SURETY for such liability or loss. SURETY shall
have the right to use the deposit, or any part thereof, in payment or
settlement of any liability, loss, expense or other matter for which the
PRINCIPAL or INDEMNITORS would be obligated to indemnify SURETY under the
terms of this Agreement. SURETY shall have no obligation to invest, or to
provide a return or interest on the deposit. SURETY'S demand shall be
sufficient if sent by registered or certified mail to the PRINCIPAL or
INDEMNITORS at the addresses stated herein or at the addresses of the
PRINCIPAL or INDEMNITORS last known to SURETY, regardless of whether such
demand is actually received by the PRINCIPAL or INDEMNITORS.
INITIALS:_______________________________ PAGE 2 OF 8 PAGES
B. SURETY may seek a mandatory injunction to compel the deposit of such
collateral together with any other remedy at law or in equity that SURETY
may have. SURETY shall have the right to retain such collateral until
SURETY has received satisfactory evidence of SURETY'S complete discharge
and exoneration from any claim or potential claim under all BONDS and
until SURETY has been fully reimbursed for any and all liability incurred
from claims, demands, damages, costs, loss, expense, attorney's fees, or
other items for which PRINCIPAL and INDEMNITORS are liable hereunder.
V. REMEDIES UPON DEFAULT.
A. In the event of any EVENT OF DEFAULT as described in this Agreement,
SURETY shall have the right, at its option, and in its sole and absolute
discretion, and is hereby so authorized by PRINCIPAL and INDEMNITORS to
take any one or more of the following actions: (i) To consent to any
change in or alteration in any CONTRACT or in any and all plans and
specifications relating thereto; (ii) To take over any CONTRACT and
arrange for its completion; (iii) To take possession of PRINCIPAL'S
equipment, materials andsupplies at the site of the work or elsewhere,
and PRINCIPAL'S office equipment, books and records as are necessary and
utilize the same for completion of any CONTRACT; (iv) To advance or loan
such funds or guarantee a loan for funds either prior to or after
default, as SURETY shall deem necessary for the completion of any
CONTRACT and for the discharge of SURETY in connection with any CONTRACT.
The repayment of such advance or loan shall be the responsibility of the
PRINCIPAL and INDEMNITORS; (v) To filean immediate suit to enforce the
provisions of this Agreement; (vi) To take possession of the work
performed and to be performed pursuant to all or any part of any
CONTRACT, and at the expense of PRINCIPAL and INDEMNITORS, to complete
the performance required by the obligation or CONTRACT or to cause the
same to be completed by others or to consent to the completion thereof,
and to take any other action which SURETY may deem appropriate in
connection therewith; (vii) in its name or in the name of the PRINCIPAL
or INDEMNITORS to adjust, settle or compromise any claim, counterclaim,
demand, suit or judgment involving any BOND or to take whatever other
action it may deem necessary, expedient or appropriate with respect to
such matter. SURETY'S determination as to whether any such claim,
counterclaim, demand, suit or judgment should be settled or defended
shall be binding and conclusive upon the PRINCIPAL and INDEMNITORS.
B. Any such action may be taken by SURETY with or without SURETY
exercising any other xxxxxxx option conferred upon SURETY by law, equity
or the terms of this Agreement, and without waiving any other right or
option so conferred upon SURETY.
C. At its sole option, SURETY may reduce the amount of PRINCIPAL'S and
INDEMNITORS' liability to SURETY hereunder by applying to such liability
any money payable to PRINCIPAL and/or INDEMNITORS by SURETY. The money
payable to PRINCIPAL or INDEMNITORS may be, but is not limited to, any
money payable by SURETY, in the event SURETY, by separate contract is an
insurer of PRINCIPAL or INDEMNITORS or is an insurer of any other
individual or legal entity, or any money payable to PRINCIPAL or
INDEMNITORS as a return of unearned or other premiums, or money payable
to settle a claim of PRINCIPAL or INDEMNITORS againstSURETY or any
individual or other legal entity insured or bonded by SURETY. Nothing
contained herein shall operate to enlarge any obligations of SURETY to
PRINCIPAL or INDEMNITORS beyond those contained in this Agreement or in
any such other contract of insurance.
D. PRINCIPAL and INDEMNITORS agree that all amounts due SURETY hereunder,
and all liabilities of PRINCIPAL and INDEMNITORS to SURETY are separate
and independent from any actual or alleged liability of SURETY to
PRINCIPAL and INDEMNITORS, and thatno set-off of any such amounts or
claims shall be permitted to be exercised by PRINCIPAL and INDEMNITORS
against SURETY nor used as a defense against any claim of SURETY. The
PRINCIPAL and INDEMNITORS 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.
VI. PREMIUMS. The PRINCIPAL and INDEMNITORS will pay to the SURETY all
premiums and charges of the SURETYfor the BONDS (including but not
limited to initial, renewal, additional, and contract overrun premiums
according to the SURETY'S current rate manual) immediately upon issuance
of each BOND, or as such premiums may arise. Any billing practice, delay
in payment or other payment variance procedure shall not constitute a
waiver of SURETY'S rights to obtain full payment upon the issuance of any
BOND, or as such premiums may arise. The initial premium is fully earned
upon execution and acceptance of the BOND.
VII. TRUST FUND.
A. The PRINCIPAL and INDEMNITORS covenant and agree that all payments
received for or on account of any CONTRACT shall be held in trust as a
trust fund for the payment of obligations incurred or to be incurred in
the performance of any CONTRACT and used forlabor, materials, and
services furnished in the prosecution of the work in any CONTRACT or any
extension or modification thereof. It is expressly understood and
declared that all monies due and to become due under any CONTRACT are
also trust funds, whether in the possession of the PRINCIPAL or
INDEMNITORS or otherwise. The trust funds shall be for the benefit and
payment of all obligations for which the SURETY may be liable under any
BONDS. The trust(s) shall inure to the benefit of the SURETY for any
liability or loss it may have or sustain under any BOND, and for any and
all obligations of PRINCIPAL and INDEMNITORS under this Agreement, and
this Agreement and declaration constitute notice of such trust.
B. If SURETY discharges any such obligation, it shall be entitled to
assert the claim of such person to the trust funds, and PRINCIPAL and
INDEMNITORS shall, upon demand of SURETY and in implementation of the
trust or trusts hereby created, open an account or accounts with a bank
selected by SURETY which shall be designated as a trust account or
accounts for the deposit of such trust funds, and shall thereupon deposit
therein all monies received pursuant to said CONTRACT or CONTRACTS.
Withdrawals from such accounts shall be by check or similar instrument
signed by the PRINCIPAL and countersigned by a representative of SURETY.
Said trust(s) shall terminate on the payment by PRINCIPAL of all the
obligations for the payment of which the trust(s) are hereby created or
upon the expiration of the ability to make a claim under the bond,
whichever shall first occur.
VIII. PERFECTION OF SECURITY INTEREST. This Agreement shall constitute a
Security Agreement for the benefit of the SURETY and also a Financing
Statement, both in accordance with the provisions of the Uniform
Commercial Code or any similar statute, ordinance or regulation of any
jurisdiction or agency, 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. SURETYmay add such schedules to
this Agreement describing specific items of security covered hereunder as
shall be necessary or appropriate. The SURETY may, at its option, file or
record this Agreement or any other document executed by any or all of the
PRINCIPAL or INDEMNITORS in connection with the application, issuance or
execution of any BOND(S), or renewal thereof, coming within the scope of
this instrument 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, ordinance
or regulation of any jurisdiction or agency. The failure to so file shall
not release or discharge any of the obligations of the PRINCIPAL or
INDEMNITORS under this Agreement.
IX. CHANGES. The SURETY, at its sole option, is authorized and empowered,
with notice to or knowledge of PRINCIPAL or the INDEMNITORS, to agree or
refuse to agree to any change whatsoever in any BOND, or any CONTRACT,
including, but not limited to, any change in the time for the completion
of any CONTRACT 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,
renewals, enlargements, modifications, changes or alterations of any BOND
and to execute any substitute or substitutes therefore, with the same or
different conditions, provisions and obliges and with the same or larger
or smaller penalties. It isexpressly understood and agreed that the
PRINCIPAL and 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 PRINCIPAL or INDEMNITORS.
INITIALS:_______________________________ PAGE 3 OF 8 PAGES
X. ADVANCES TO PRINCIPAL. The SURETY, at its sole option, is authorized and
empowered to guarantee loans, to advance or lend to, or for the account
of, the PRINCIPAL any money, which the SURETY in its sole discretion may
see fit to do, reserving to itself, however, the absolute right to cancel
any such guarantee and to cease advancing or lending money to the
PRINCIPAL or for the account of the PRINCIPAL with or without cause and
with or without notice to PRINCIPAL or INDEMNITORS. SURETY shall not be
held responsiblefor application of the proceeds of such loan or advance.
All money expended by the SURETY, or lent or advanced from time-to-time
to, or for the account of, the PRINCIPAL or guaranteed by the SURETY, and
all related cost and expense incurred by the SURETY, shall be loss to the
SURETY for which the PRINCIPAL and the INDEMNITORS shall be responsible,
notwithstanding that said money or any part thereof should not be so used
by the PRINCIPAL.
XI. BOOKS AND RECORDS. At any time, and until such time as the liability of
the SURETY under all BONDS is terminated or SURETY is fully reimbursed
all amounts due to it under this Agreement, the SURETY shall have the
right of access to the books, records, accounts and documents of the
PRINCIPAL and INDEMNITORS, wherever located, for the purpose of
inspection, copying or reproduction. Any financial institution,
depository, materialman, supply house, obligee, general PRINCIPAL,
subcontractor, or other person, firm, or corporation, when requested by
the SURETY, is hereby authorized by PRINCIPAL and INDEMNITORS to furnish
the SURETY any information requested by SURETY, including, but not
limited to, the status of the work under any CONTRACT being performed by
the PRINCIPAL, the status, extent or condition of the performance of any
CONTRACT being performed by the PRINCIPAL, the status, extent or
condition of the performance of any other CONTRACT and payment of
accounts. Upon the occurrence of any Event of Default, PRINCIPAL and
INDEMNITORS, upon SURETY'S request, shall immediatelyturn over to SURETY,
or its designee, at a place and in a manner designated by SURETY, such
books, records, accounts, documents and CONTRACTS in whatever form, as
requested by SURETY. The expense of any inspection permitted hereunder,
and of providing the records so specified, shall be borne by PRINCIPAL
and INDEMNITORS. SURETY may furnish any information, which it now has or
may hereafter acquire concerning the PRINCIPAL and INDEMNITORS, to other
persons, firms or entities for the purpose of procuring co-suretyship or
reinsurance or of advising such persons, firms, or entities as it may
deem appropriate.
XII. DECLINE OF EXECUTION. PRINCIPAL and INDEMNITORS are not obligated to
request the SURETY to execute, provide or procure any BOND required of
them in the performance and fulfillment of obligations. Furthermore, the
SURETY has the right in its sole and absolute discretion, to decline to
execute, provide or procure any BOND requested by PRINCIPAL. 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 in its sole and absolute discretion to decline
to execute the final bond (including, but not limited to, performance,
payment or maintenance bond(s) that may berequired 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, without relieving PRINCIPAL or INDEMNITORS from
their liability under this Agreement in connection with the provision of
the bid bond or proposal bond. SURETY shall not be liable to PRINCIPAL or
INDEMNITORS for any such action, and is released from any and all
liability, cost or expense arising out of, relating to orresulting from
any such action.
XIII. WAIVERS BY PRINCIPAL AND INDEMNITORS. The PRINCIPAL and INDEMNITORS
hereby waive and agree not to assert any of the following, to the end and
effect that PRINCIPAL and INDEMNITORS shall be and continue to be liable
hereunder: (i) Any defense that this Agreement was executed subsequent to
the date of any BOND, it being expressly understood and agreed that the
PRINCIPAL and INDEMNITORS hereby admit and covenant that the BOND was
executed by SURETY pursuant to the request of the PRINCIPAL and
INDEMNITORS and in reliance on the promise by the PRINCIPAL and
INDEMNITORS to execute and perform this Agreement; (ii) Any right to
claim that any of their property, including homesteads, is exempt from
levy, execution, sale or other legal process under the laws of any state,
territory or possession in any action brought by SURETY under this
Agreement; (iii) Any right to require SURETY to proceed against PRINCIPAL
or INDEMNITORS or any other person, firm or entity or to proceed against
orexhaust any security or remedy held by SURETY at any time or to pursue
any other remedy in SURETY'S power; (iv) The defense of the statute of
limitations in any action hereunder for the collection of any claim or
amount due under this Agreement, or the performance of any obligation
indemnified hereby; (v) Any defense based upon an election of remedies by
SURETY, which election may destroy or otherwise impair subrogation rights
of PRINCIPAL or any INDEMNITOR or the right of INDEMNITOR to proceed
against thePRINCIPAL or to realize upon any security; (vi) Any right to
notice of the execution of any BOND and of the acceptance of this
Agreement; (vii) Any right to notice of any default, payment 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 the part of PRINCIPAL and INDEMNITORS hereunder.
XIV. SUITS.
A. Separate suits may be brought by SURETY against any or all of the
PRINCIPAL or INDEMNITORS to enforce the terms of this Agreement 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 previously or subsequently
arising.
B. The PRINCIPAL and each INDEMNITOR is the agent for the PRINCIPAL and
all INDEMNITORS for the purpose of accepting service of any process in
the jurisdiction in which the PRINCIPAL or INDEMNITORS accepting the
process resides, is domiciled, isdoing business or is found.
XV. OTHER SURETIES. If the SURETY procures the execution of any BOND by other
sureties, or executes the BONDS with co-sureties or reinsures any portion
of said BONDS with reinsuring sureties, then all the terms and conditions
of this Agreement shall inure to the benefit of such other sureties,
co-sureties and reinsuring sureties, as their interests may appear.
XVI. TERMINATION.
A. This Agreement is a continuing obligation of the PRINCIPAL and
INDEMNITORS, and their successors, legal representatives, estates, heirs
and assigns, unless terminated by written notice to SURETY as hereinafter
provided, and such termination by a particular person or entity shall in
no way affect the obligation of any other person or entity who has not
given such notice. If PRINCIPAL or INDEMNITORS have previously executed
an Agreement in favor of SURETY, the acceptance by SURETY of this
Agreement shall not relieve PRINCIPAL or INDEMNITORS from liability to
SURETY under such prior Agreement.
B. This Agreement may be terminated by PRINCIPAL or any INDEMNITOR upon
written notice to SURETY by PRINCIPAL or INDEMNITORS, or by PRINCIPAL'S
or INDEMNITOR'S legal representatives or successors, by Registered or
Certified Mail addressed to SURETY at its home office shown inthis
Agreement, as such may be changed from time-to-time. Termination of this
Agreement as to such person providing notice shall not be effective until
thirty (30) days after receipt of said written notice by SURETY. 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.
INITIALS:_______________________________ PAGE 4 OF 8 PAGES
C. Termination of this Agreement shall not relieve the PRINCIPAL or
INDEMNITORS from liability to SURETY arising out of any BOND executed,
authorized, provided or procured by SURETY on behalf of PRINCIPAL prior
to the effective date of such termination and for which this Agreement is
part of the consideration on which SURETY relied in executing,
authorizing, providing or procuring such BONDS, including any renewals,
substitutions and extensions thereof, and any BONDS executed pursuant to
a bid or proposal bond executed or authorized prior to such effective
date of termination, and any renewals, substitutions and extensions
thereof, and any maintenance or guarantee bonds executed incidental to
any other BOND, and any renewals, substitutions and extensions thereof.
D. The liability of the INDEMNITORS hereunder as to existing or future
BONDS of PRINCIPAL shall not terminate by reason of the failure of SURETY
to disclose facts known about PRINCIPAL, even though such facts
materially increase the risk beyond that which the INDEMNITORS might
intend to assume. Whether SURETY may have reason to believe such facts
are unknownto the INDEMNITORS, or whether SURETY may have reasonable
opportunity to communicate such facts to the INDEMNITORS, the INDEMNITORS
hereby waive notice of such facts, and of any obligation of SURETY to
notify INDEMNITORS of same.
XVII. NOTIFICATION.
A. TheINDEMNITORS agree among themselves and hereby acknowledge to SURETY
that notification by SURETY to any one INDEMNITOR shall constitute notice
to all INDEMNITORS. Any notice permitted to PRINCIPAL or INDEMNITOR may
be sent by SURETY to their respective addresses shown in this Agreement,
but failure of PRINCIPAL or INDEMNITOR to receive such notice shall not
operate as a waiver of SURETY'S rights or a bar to enforcement of
SURETY'S rights. PRINCIPAL and INDEMNITORS shall notify SURETY promptly
of any change of address. Written notice must be given by PRINCIPAL or
INDEMNITORS to SURETY at its home office, as shown in this Agreement and
as same may be changed from time-to-time, or at such other address as
SURETY may provide to PRINCIPAL or INDEMNITORS from time-to-time, at the
earliest practical time of any anticipated change or negotiations entered
into by PRINCIPAL or INDEMNITORS for any anticipated change in the
character, identity, control arrangement, management, beneficial
ownership (including, if a corporation, ownership of more than 5% of the
stock of PRINCIPAL or INDEMNITOR), or existence of the PRINCIPAL or
INDEMNITORS.
B. The PRINCIPAL and INDEMNITORS shall promptly provide written notice to
the SURETY at its home office as shown in this Agreement, assuch address
may be changed from time-to-time, of any of the following events: (i)
Notice by any obligee on any BOND to the PRINCIPAL that the PRINCIPAL is
in default or has failed or refused to perform any CONTRACT obligation;
or that PRINCIPAL has failed to pay any obligation; and (ii) Notice by
any obligee on any BOND to the PRINCIPAL that the PRINCIPAL cure its
performance or show cause as to why the PRINCIPAL should not be
terminated for default.
XVIII INSPECTIONS. The SURETY, by and through its authorized representatives,
shall have the right, but not the obligation to inspect the PRINCIPAL'S
property, documents and operations, including projects on which the
PRINCIPAL is performing work, whether bonded or not, at any time and from
time-to-time. The PRINCIPAL shall assure access by the SURETY'S
representative to all areas of the PRINCIPAL'S property and operations.
Neither the SURETY'S right to make inspections nor the making thereof,
nor the making of any report as a result thereof, shall constitute
anundertaking, by the SURETY or its representatives, of or for the
benefit of the PRINCIPAL or INDEMNITORS or any other person, firm,
organization or entity to determine, warranty or guarantee that such
property or operations are safe, appropriate or are incompliance with any
law, rule, regulation, or the CONTRACT; the PRINCIPAL and INDEMNITORS
shall defend, indemnify and hold harmless the SURETY from any and all
claims, liability or loss arising out of the performance of such
inspections.
XIX GENERAL PROVISIONS. (i) If any provision or provisions, or portion
thereof, of this Agreement shall be void or unenforceable under the laws
of any jurisdiction governing its construction, this Agreement shall not
be void or vitiated thereby, but shall be construed and enforced with the
same effect as though such provision or provisions, or portion thereof,
were omitted. (ii) In case any of the parties mentioned in this Agreement
fail to execute the same, or in case the execution hereof by any of the
parties shall 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 hereunder of any of the parties executing the
same, but each and every party executing same shall be and remain fully
bound and liable hereunder to the same extent as if such failure, defect
or invalidity had not existed. (iii) All rights and remedies of SURETY
under this Agreement or however otherwise derived shall be cumulative,
and the exercise of or failure toexercise 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 SURETY to pursue any remedy against any one or more of
the PRINCIPAL or INDEMNITORS shall not release or waive any right against
any other of the PRINCIPAL or INDEMNITORS. The SURETY is not required to
exhaust its remedies or rights against PRINCIPAL or to await receipt of
any dividends from the legal representatives of PRINCIPAL before
asserting its rights under this agreementagainst the INDEMNITORS. The
rights, powers and remedies given to SURETY by this Agreement shall be
and are in addition to, and not in lieu of, any and all rights, powers
and remedies which SURETY may have or acquire against the PRINCIPAL or
INDEMNITORSor others whether by the terms of any other agreement, by
operation of law or otherwise. (iv) The PRINCIPAL or INDEMNITORS shall
continue to remain bound under this Agreement even though SURETY may,
from time-to-time and with or without notice to or knowledge of the
PRINCIPAL or INDEMNITORS, have heretofore accepted or released, or shall
hereafter accept or release, other Agreements of Indemnity or release,
exchange or return collateral of the PRINCIPAL or INDEMNITORS or others
Failure of PRINCIPAL to sign any BONDS shall not relieve the PRINCIPAL or
INDEMNITORS of liability under this Agreement. (v) The PRINCIPAL and
INDEMNITORS will, on request of SURETY, procure the discharge of SURETY
from any BOND, and all liability by reason thereof. (vi) SURETY shall
have every right, defense, or remedy which a personal surety without
compensation would have, including the right of exoneration. The SURETY
shall have the right to fill in any blanks left herein and to correct any
errors in filling in any blanks herein. (vii) This Agreement may not be
changed or modified orally. No change or modification shall be effective
unless specifically agreed to in writing, and signed by an officer of the
SURETY. (viii) Wherever used in this Agreement the plural shall include
the singular, the singular shall include the plural, and the neuter shall
include both genders as the circumstances require. (ix) This Agreement is
to be liberally construed so as to protect, exonerate and indemnify
SURETY. (x) The paragraph titles as contained in this Agreement are
descriptive only and do not restrict or modify the terms of the
Agreement. In the event of any inconsistency between the paragraph titles
and the terms of this Agreement, the terms of this Agreement shall
control. (xi) This Agreement shall be interpreted in accordance with the
laws of the State of Delaware.
XX MERGER AND CONSOLIDATION. THE PRINCIPAL AND INDEMNITORS HAVE READ AND
UNDERSTAND THIS AGREEMENT, AND HAVE CONSULTED WITH SUCH LEGAL AND OTHER
PROFESSIONAL ADVISORS AS THEY DEEM NECESSARY PRIOR TO EXECUTING THIS
AGREEMENT. EXCEPT FOR ANY PREVIOUS INDEMNITY AGREEMENT OR AGREEMENTS
EXECUTED BY PRINCIPAL OR INDEMNITORS, THIS AGREEMENT OF INDEMNITY
CONSTITUTES THE ENTIRE AGREEMENT BETWEEN THE PARTIES. NO OTHER SEPARATE
AGREEMENTS OR UNDERSTANDINGS, PAST, PRESENT OR FUTURE, WHETHER ORAL OR
WRITTEN, CHANGE THE TERMS OF THIS AGREEMENT.
IN WITNESS WHEREOF, the PRINCIPAL and INDEMNITORS, intending to be legally bound
hereby, have signed and sealed this Agreement the day and year first above
written.
*** SIGNATURE PAGES FOLLOW ***
INITIALS:_______________________________ PAGE 5 OF 8 PAGES
================================================================================
PRINCIPAL
--------------------------------------------------------------------------------
Witness:
By: X
---------------------------------------------------------
Type Name: Title:
[AFFIX CORPORATE SEAL]
--------------------------------------------------------------------------------
PRINCIPAL:
Address
City, State, Zip
--------------------------------------------------------------------------------
By: X
---------------------------------------------------------
Type Name: Title:
------------------------------------------------------------
================================================================================
ACKNOWLEDGEMENT OF CORPORATE PRINCIPAL
================================================================================
STATE OF ......................................
} ss.
COUNTY OF......................................
On this ___ day of _______________, _______________, before me, personally
appeared _______________ personally known to me or proved to me on the basis of
satisfactory evidence to be the person who is subscribed to in this instrument,
who, being duly sworn, did depose and say that he is _______________ of
_______________ The corporation described in, and which executed, the within
instrument; that he knows the seal of said corporation; that the seal affixed to
said instrument is such corporate seal; that it was so affixed by order of the
Board of Directors of said corporation, and that he signed his name thereto by
like order; and the deponent further said that he is acquainted with
_______________ and knows that he/she is the _______________ of said corporation
and that he subscribed his/her name to the within instrument by a like order of
the said Board of Directors.
Sworn to and subscribed before me this ___ day of _______________, _______.
Notary Public
------------------------------------------
My Commission Expires:
---------------------------------------------
[SEAL]
================================================================================
ACKNOWLEDGEMENT OF PRINCIPAL
(OTHER THAN A CORPORATION)
================================================================================
STATE OF.......................................
} ss.
COUNTY OF......................................
On this ___ day of _______________, _______________, before me, personally
appeared _______________ a member of the firm of_______________. personally
known to me or proved to me on the basis of satisfactory evidence to be the
person who is described in and who executed the foregoing instrument, and
acknowledged to me that (s)he executed the same as and for the act and deed of
the said firm.
Sworn to and subscribed before me this ___ day of _______________, _______.
Notary Public
------------------------------------------
My Commission Expires:
---------------------------------------------
[SEAL]
================================================================================
ACKNOWLEDGEMENT OF SOLE OFFICER CORPORATE PRINCIPAL
================================================================================
STATE OF.......................................
} ss.
COUNTY OF......................................
On this ___ day of _______________, before me personally appeared
_______________ to me personally know, or proved to me on the basis of
satisfactory evidence, to be the person who is subscribed to in this instrument,
who, being duly sworn, did depose and say that (s)he is the President
_______________ the corporation described in, and which executed, the within
instrument; that (s)he knows the seal of said corporation; that the seal affixed
to said instrument is such corporate seal, that it was so affixed by order of
the Board of Directors of said corporation; that (s)he signed his/her name
thereto by like order; and the deponent further said that (s)he is the sole
officer of said corporation in accordance with the laws of the state of
incorporation of said corporation.
Sworn to and subscribed before me this ___ day of _______________, _______.
Notary Public
------------------------------------------
My Commission Expires:
---------------------------------------------
[SEAL]
================================================================================
INITIALS:_______________________________ PAGE 6 OF 8 PAGES
================================================================================
INDIVIDUAL INDEMNITOR(S)
================================================================================
SignatureX
--------------------------------------------------------------------------------
Name: SS
Home Address:
Residence Phone #
--------------------------------------------------------------------------------
Signature
--------------------------------------------------------------------------------
Name: SS #
Home Address:
Residence Phone #
--------------------------------------------------------------------------------
Signature
--------------------------------------------------------------------------------
Name: S.S. #
Home Address
Residence Phone #
--------------------------------------------------------------------------------
Signature
--------------------------------------------------------------------------------
Name SS #
---------------------------------
Home Address:
Residence Phone #
--------------------------------------------------------------------------------
ONE (1) "INDIVIDUAL" PER NOTARY ACKNOWLEDGMENT
================================================================================
INDIVIDUAL ACKNOWLEDGEMENTS
================================================================================
STATE OF ......................................
} ss.
COUNTY OF......................................
On this ___ day of _______________, _______________, before me personally
appeared _______________ personally known to me or proved to me on the basis of
satisfactory evidence to be the person whose name is subscribed to in this
instrument, and acknowledged to me that (s)he executed the same.
Sworn to and subscribed before me this ___ day of _______________, _______.
Notary Public
------------------------------------------
My Commission Expires:
---------------------------------------------
[SEAL]
================================================================================
STATE OF ......................................
} ss.
COUNTY OF......................................
On this day ___ of _______________, _______________, before me personally
appeared _______________ personally known to me or proved to me on the basis of
satisfactory evidence to be the person whose name is subscribed to in this
instrument, and acknowledged to me that (s)he executed the same.
Sworn to and subscribed before me this ___ day of _______________, _______.
Notary Public
------------------------------------------
My Commission Expires:
---------------------------------------------
[SEAL]
================================================================================
STATE OF ......................................
} ss.
COUNTY OF......................................
On this ___ day of _______________, _______________, before me personally
appeared _______________ personally known to me or proved to me on the basis of
satisfactory evidence to be the person whose name is subscribed to in this
instrument, and acknowledged to me that (s)he executed the same.
Sworn to and subscribed before me this ___ day of _______________, _______.
Notary Public
------------------------------------------
My Commission Expires:
---------------------------------------------
[SEAL]
================================================================================
STATE OF ......................................
} ss.
COUNTY OF......................................
On this ___ day of _______________, _______________, before me personally
appeared _______________ personally known to me or proved to me on the basis of
satisfactory evidence to be the person whose name is subscribed to in this
instrument, and acknowledged to me that (s)he executed the same.
Sworn to and subscribed before me this ___ day of _______________, _______.
Notary Public
------------------------------------------
My Commission Expires:
---------------------------------------------
[SEAL]
================================================================================
INITIALS:_______________________________ PAGE 7 OF 8 PAGES
================================================================================
ADDITIONAL CORPORATE INDEMNITOR
================================================================================
ATTEST or 3rd Party Witness:
By: X
---------------------------------------------------------------------
Type Name/ Title
----------------------------------
Home Address:
Hone Phone #:
[AFFIX CORPORATE SEAL]
--------------------------------------------------------------------------------
Corporate Indemnitor Name :
Address
City State Zip
--------------------------------------------------------------------------------
By: X
---------------------------------------------------------------------
Type Name: Title:
================================================================================
ACKNOWLEDGEMENT OF ADDITIONAL CORPORATE INDEMNITOR
================================================================================
STATE OF ......................................
} ss.
COUNTY OF......................................
On this ___ day of _______________, __________, before me, personally appeared
_______________ personally known to me or proved to me on the basis of
satisfactory evidence to be the person who is subscribed to in this instrument,
who, being duly sworn, did depose and say that (s)he is the _______________ of
_______________ the corporation described in, and which executed, the within
instrument; that (s)he knows the seal of said corporation; that the seal affixed
to said instrument is such corporate seal; that it was so affixed by order of
the Board of Directors of said corporation, and that (s)he signed his/her name
thereto by like order; and the deponent further said that (s)he is acquainted
with _______________ and knows that (s)he is the _______________ of said
corporation and that (s)he subscribed his/her name to the within instrument by a
like order of the said Board of Directors.
Sworn to and subscribed before me this ___ day of _______________, _______.
Notary Public
------------------------------------------
My Commission Expires:
---------------------------------------------
[SEAL]
================================================================================
ADDITIONAL CORPORATE INDEMNITOR
================================================================================
ATTEST or 3rd Party Witness:
By: X
---------------------------------------------------------------------
Type Name/Title
Home Address:
-----------------------------------------------
Hone Phone #:
-----------------------------------------------
[AFFIX CORPORATE SEAL]
--------------------------------------------------------------------------------
Corporate Indemnitor Name
Address
City State Zip
--------------------------------------------------------------------------------
By:
---------------------------------------------------------------------
Type Name: Title: President
================================================================================
ACKNOWLEDGEMENT OF ADDITIONAL CORPORATE INDEMNITOR
================================================================================
STATE OF ......................................
} ss.
COUNTY OF......................................
On this ___ day of _______________, __________, before me, personally appeared
_______________ personally known to me or proved to me on the basis of
satisfactory evidence to be the person who is subscribed to in this instrument,
who, being duly sworn, did depose and say that (s)he is the _______________ of
_______________, the corporation described in, and which executed, the within
instrument; that (s)he knows the seal of said corporation; that the seal affixed
to said instrument is such corporate seal; that it was so affixed by order of
the Board of Directors of said corporation, and that (s)he signed his/her name
thereto by like order; and the deponent further said that (s)he is acquainted
with _______________, and knows that (s)he is the _______________ of said
corporation and that (s)he subscribed his/her name to the within instrument by a
like order of the said Board of Directors.
Sworn to and subscribed before me this ___ day of _______________, _______.
Notary Public
------------------------------------------
My Commission Expires:
---------------------------------------------
[SEAL]
================================================================================
INITIALS:_______________________________ PAGE 8 OF 8 PAGES
