Preview
FILED: KINGS COUNTY CLERK 10/30/2023 03:16 PM INDEX NO. 515382/2022
NYSCEF DOC. NO. 88 RECEIVED NYSCEF: 10/30/2023
EXHIBIT 10
Motion Sequence No. 003
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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LIBERTY MUTUAL INSURANCE COMPANY,
Index No. 515382/2022
Plaintiff,
STATEMENT OF MATERIAL
- against - UNDISPUTED FACTS
IN SUPPORT OF MOTION
ACTIVE FIRE SPRINKLER NYC, LLC,
and DIANA BLANDA, Hon. Reginald A. Boddie, J.S.C.
Defendants. Motion Sequence No. 002
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Pursuant to Commercial Division Rule 19-a, plaintiff Liberty Mutual Insurance Company
(“Liberty Mutual”) hereby sets forth its Statement of Material Facts as to which Liberty Mutual
contends there is no genuine issue to be tried, in support of its motion for summary judgment against
defendants Active Fire Sprinkler NYC, LLC (“Active Fire”) and Diana Blanda (collectively, with
Active Fire, the “Indemnitors”).
1. On or about March 14, 2011, the Indemnitors – along with Global Electrical
Contracting of Westchester, Inc., Neil Corrado, Michael Corrado, and Christopher Corrado (the
“Corrado Parties”) – executed a General Agreement of Indemnity (the “Indemnity Agreement”),
a true and correct copy of which is attached as Exhibit A, in favor of Liberty Mutual.
2. The Indemnity Agreement, in the Section titled “SECOND: INDEMNITY,”
provides as follows:
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
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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.
Exhibit A (Indemnity Agreement), § 2.
3. The Indemnity Agreement, also in the Section titled “SECOND: INDEMNITY,”
provides as follows:
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.
Exhibit A (Indemnity Agreement), § 2.
4. The Indemnity Agreement, in Section titled “THIRTEENTH: SETTLEMENTS,”
provides as follows:
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
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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.
Exhibit A (Indemnity Agreement), § 13.
5. The Indemnity Agreement, in the Section titled “SIXTEENTH: OTHER
INDEMNITY,” provides as follows:
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.
Exhibit A (Indemnity Agreement), § 16.
6. Subsequent to the execution of the Indemnity Agreement, Liberty Mutual, as
surety, issued various surety bonds (the “Bonds”) – true and correct copies of the relevant Bonds
are annexed hereto as Exhibit B – for Active Fire, as principal, at the request of the Indemnitors,
in connection with various construction projects performed by Active Fire within New York.
7. Within the six years before the commencement of this action, Liberty Mutual
sustained losses on the Bonds that it issued on behalf of Active Fire and, to date, Liberty Mutual
has not been reimbursed for at least $411,972.10 of these losses.
8. These losses represent payments which Liberty Mutual made to: (a) the claimants
under the Bonds; and (b) its attorneys and outside consultants in connection with these claims.
9. True and correct copies of these payments, which Liberty Mutual produced during
discovery, are attached as Exhibit C, and they total $830,727.64.
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10. To date, Liberty Mutual has recovered, from sources other than the Indemnitors,
$418,755.54 of the $830,727.64 in payments it made as a result of issuing the Bonds, and
therefore Liberty Mutual’s unreimbursed losses to date are $411,972.10.
11. True and correct copies of these payments which Liberty Mutual has received,
and which Liberty Mutual produced during discovery, are attached as Exhibit D.
12. Liberty Mutual has demanded that the Indemnitors reimburse Liberty Mutual for
its losses under the Bonds, pursuant to the terms of the Indemnity Agreement, but the Indemnitors
have made no such payments to Liberty Mutual.
Dated: August 24, 2023
CHIESA SHAHINIAN & GIANTOMASI PC
Attorneys for Plaintiff
Liberty Mutual Insurance Company
By: /s/ Brian H. Fischkin .
Brian H. Fischkin
11 Times Square, 34th Floor
New York, New York 10036
(212) 973-0572
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CERTIFICATION OF COUNSEL PURSUANT
TO COMMERCIAL DIVISION RULE 17
BRIAN H. FISCHKIN, an attorney duly admitted to practice before the courts of the
State of New York, affirms the truth of the following under penalty of perjury:
1. I am Counsel with Chiesa Shahinian & Giantomasi PC, attorneys for plaintiff
Liberty Mutual Insurance Company.
2. I submit this Certification pursuant to Commercial Division Rule 17.
3. According to the word processing system used to prepare this Certification, this
Statement of Facts contains 961 words, excluding the caption, table of contents, table of
authorities, and signature block.
Dated: August 24, 2023
/s/ Brian H. Fischkin
Brian H. Fischkin
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EXHIBIT A
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u
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, Active Fire Sprinkler NYC, LLC: Diana Blanda; Global Electrical Contracting
of Westchester, Inc.; Neil Corrado; Michael Corrado; Christopher Corrado (individually and collectively hereinafter called the
"Indemnitor(s)") jointly and severally, in favor of Liberty Mutual Insurance Company and any other company that is part of or added to
the Liberty Mutual Group, severally not jointly, and for which Liberty Mutual Surety 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) Active Fire Sprinkler NYC, LLC; Diana Blanda; Glob.al Electrical Contracting of Westchester, Inc.; Neil Corrado;
Principals'
Michael Corrado; Christopher Corrado; and any Indemnitor added hereto by Amendment; ii) any of the Indemnitors or
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 and 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 heretofo.re 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 Indemnitors 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, and keep indemnified the Surety from and
indemnify,
against any and an 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 iaw 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 surn 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 fiability, 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
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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.
THIRD: ASSIGNMENT - The Indemnitors do assign, transfer, pledge and convey to the Surety and agree to use
hereby consenting
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 fumishing or agreeing to fumish or supply labor, material, supplies, machinery, to.ols, 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 Principai'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.
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 Principars failure to pay obligations incurred
in connection therewith; or if the Principal is an individual, in the event of the Principa> 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 Indem.nitors 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
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Principals'
represent and warrant to surety that they are currently informed and remain informed and apprised of Principal's or 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
Principal(s)'
has no obligation to inform the Indemnitors of any change in any aspect of 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 Principai 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 rnaximum 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
EIGHTH: BOOKS AND RECORDS - and Indemnitor(s) shall provide to Surety within 120 days of their fiscal year end,
Principal(s)
financial statements prepared in accordance with Generally Accepted Accounting Principles, and reports prepared by reputable
accounting firms prepared in accordance with the AlCPA'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 fumish 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, renew or extend any Bond, including final
may decline to execute,
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.
ELEVENTH: TRUST FUND - To the extent permitted under applicable law, 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 concemed, 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.
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59 RECEIVED NYSCEF: 10/30/2023
08/08/2022
08/24/2023
THIRTEENTH: SETTLEMENTS - The
Surety shall have the right, at its a.ption 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 legai 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 judgrnent
attorneys'
or judgments rendered or that may be rendered, with interest, costs, expenses and 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 lÀdemnitor 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 obliga
Preview
FILED: KINGS COUNTY CLERK 10/30/2023 03:16 PM INDEX NO. 515382/2022 NYSCEF DOC. NO. 88 RECEIVED NYSCEF: 10/30/2023 EXHIBIT 10 Motion Sequence No. 003 FILED: KINGS COUNTY CLERK 10/30/2023 08/24/2023 03:16 12:41 PM INDEX NO. 515382/2022 NYSCEF DOC. NO. 88 58 RECEIVED NYSCEF: 10/30/2023 08/24/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS -------------------------------------------------------------------X LIBERTY MUTUAL INSURANCE COMPANY, Index No. 515382/2022 Plaintiff, STATEMENT OF MATERIAL - against - UNDISPUTED FACTS IN SUPPORT OF MOTION ACTIVE FIRE SPRINKLER NYC, LLC, and DIANA BLANDA, Hon. Reginald A. Boddie, J.S.C. Defendants. Motion Sequence No. 002 -------------------------------------------------------------------X Pursuant to Commercial Division Rule 19-a, plaintiff Liberty Mutual Insurance Company (“Liberty Mutual”) hereby sets forth its Statement of Material Facts as to which Liberty Mutual contends there is no genuine issue to be tried, in support of its motion for summary judgment against defendants Active Fire Sprinkler NYC, LLC (“Active Fire”) and Diana Blanda (collectively, with Active Fire, the “Indemnitors”). 1. On or about March 14, 2011, the Indemnitors – along with Global Electrical Contracting of Westchester, Inc., Neil Corrado, Michael Corrado, and Christopher Corrado (the “Corrado Parties”) – executed a General Agreement of Indemnity (the “Indemnity Agreement”), a true and correct copy of which is attached as Exhibit A, in favor of Liberty Mutual. 2. The Indemnity Agreement, in the Section titled “SECOND: INDEMNITY,” provides as follows: 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 1 1 of 5 FILED: KINGS COUNTY CLERK 10/30/2023 08/24/2023 03:16 12:41 PM INDEX NO. 515382/2022 NYSCEF DOC. NO. 88 58 RECEIVED NYSCEF: 10/30/2023 08/24/2023 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. Exhibit A (Indemnity Agreement), § 2. 3. The Indemnity Agreement, also in the Section titled “SECOND: INDEMNITY,” provides as follows: 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. Exhibit A (Indemnity Agreement), § 2. 4. The Indemnity Agreement, in Section titled “THIRTEENTH: SETTLEMENTS,” provides as follows: 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 2 2 of 5 FILED: KINGS COUNTY CLERK 10/30/2023 08/24/2023 03:16 12:41 PM INDEX NO. 515382/2022 NYSCEF DOC. NO. 88 58 RECEIVED NYSCEF: 10/30/2023 08/24/2023 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. Exhibit A (Indemnity Agreement), § 13. 5. The Indemnity Agreement, in the Section titled “SIXTEENTH: OTHER INDEMNITY,” provides as follows: 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. Exhibit A (Indemnity Agreement), § 16. 6. Subsequent to the execution of the Indemnity Agreement, Liberty Mutual, as surety, issued various surety bonds (the “Bonds”) – true and correct copies of the relevant Bonds are annexed hereto as Exhibit B – for Active Fire, as principal, at the request of the Indemnitors, in connection with various construction projects performed by Active Fire within New York. 7. Within the six years before the commencement of this action, Liberty Mutual sustained losses on the Bonds that it issued on behalf of Active Fire and, to date, Liberty Mutual has not been reimbursed for at least $411,972.10 of these losses. 8. These losses represent payments which Liberty Mutual made to: (a) the claimants under the Bonds; and (b) its attorneys and outside consultants in connection with these claims. 9. True and correct copies of these payments, which Liberty Mutual produced during discovery, are attached as Exhibit C, and they total $830,727.64. 3 3 of 5 FILED: KINGS COUNTY CLERK 10/30/2023 08/24/2023 03:16 12:41 PM INDEX NO. 515382/2022 NYSCEF DOC. NO. 88 58 RECEIVED NYSCEF: 10/30/2023 08/24/2023 10. To date, Liberty Mutual has recovered, from sources other than the Indemnitors, $418,755.54 of the $830,727.64 in payments it made as a result of issuing the Bonds, and therefore Liberty Mutual’s unreimbursed losses to date are $411,972.10. 11. True and correct copies of these payments which Liberty Mutual has received, and which Liberty Mutual produced during discovery, are attached as Exhibit D. 12. Liberty Mutual has demanded that the Indemnitors reimburse Liberty Mutual for its losses under the Bonds, pursuant to the terms of the Indemnity Agreement, but the Indemnitors have made no such payments to Liberty Mutual. Dated: August 24, 2023 CHIESA SHAHINIAN & GIANTOMASI PC Attorneys for Plaintiff Liberty Mutual Insurance Company By: /s/ Brian H. Fischkin . Brian H. Fischkin 11 Times Square, 34th Floor New York, New York 10036 (212) 973-0572 4 4 of 5 FILED: KINGS COUNTY CLERK 10/30/2023 08/24/2023 03:16 12:41 PM INDEX NO. 515382/2022 NYSCEF DOC. NO. 88 58 RECEIVED NYSCEF: 10/30/2023 08/24/2023 CERTIFICATION OF COUNSEL PURSUANT TO COMMERCIAL DIVISION RULE 17 BRIAN H. FISCHKIN, an attorney duly admitted to practice before the courts of the State of New York, affirms the truth of the following under penalty of perjury: 1. I am Counsel with Chiesa Shahinian & Giantomasi PC, attorneys for plaintiff Liberty Mutual Insurance Company. 2. I submit this Certification pursuant to Commercial Division Rule 17. 3. According to the word processing system used to prepare this Certification, this Statement of Facts contains 961 words, excluding the caption, table of contents, table of authorities, and signature block. Dated: August 24, 2023 /s/ Brian H. Fischkin Brian H. Fischkin 5 5 of 5 FILED: KINGS COUNTY CLERK 10/30/2023 08/24/2023 03:16 12:41 PM INDEX NO. 515382/2022 NYSCEF DOC. NO. 88 59 RECEIVED NYSCEF: 10/30/2023 08/24/2023 EXHIBIT A FILED: KINGS COUNTY CLERK 10/30/2023 08/08/2022 03:16 08/24/2023 05:31 PM 12:41 INDEX NO. 515382/2022 NYSCEF DOC. NO. 88 6 59 RECEIVED NYSCEF: 10/30/2023 08/08/2022 08/24/2023 u 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, Active Fire Sprinkler NYC, LLC: Diana Blanda; Global Electrical Contracting of Westchester, Inc.; Neil Corrado; Michael Corrado; Christopher Corrado (individually and collectively hereinafter called the "Indemnitor(s)") jointly and severally, in favor of Liberty Mutual Insurance Company and any other company that is part of or added to the Liberty Mutual Group, severally not jointly, and for which Liberty Mutual Surety 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) Active Fire Sprinkler NYC, LLC; Diana Blanda; Glob.al Electrical Contracting of Westchester, Inc.; Neil Corrado; Principals' Michael Corrado; Christopher Corrado; and any Indemnitor added hereto by Amendment; ii) any of the Indemnitors or 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 and 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 heretofo.re 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 Indemnitors 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, and keep indemnified the Surety from and indemnify, against any and an 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 iaw 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 surn 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 fiability, 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 7300 1/8 rev. 06/10 FILED: KINGS COUNTY CLERK 10/30/2023 08/08/2022 03:16 08/24/2023 05:31 PM 12:41 INDEX NO. 515382/2022 NYSCEF DOC. NO. 88 6 59 RECEIVED NYSCEF: 10/30/2023 08/08/2022 08/24/2023 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. THIRD: ASSIGNMENT - The Indemnitors do assign, transfer, pledge and convey to the Surety and agree to use hereby consenting 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 fumishing or agreeing to fumish or supply labor, material, supplies, machinery, to.ols, 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 Principai'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. 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 Principars failure to pay obligations incurred in connection therewith; or if the Principal is an individual, in the event of the Principa> 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 Indem.nitors 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 7300 2/8 rev. 06/10 FILED: KINGS COUNTY CLERK 10/30/2023 08/08/2022 03:16 08/24/2023 05:31 PM 12:41 INDEX NO. 515382/2022 NYSCEF DOC. NO. 88 6 59 RECEIVED NYSCEF: 10/30/2023 08/08/2022 08/24/2023 Principals' represent and warrant to surety that they are currently informed and remain informed and apprised of Principal's or 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 Principal(s)' has no obligation to inform the Indemnitors of any change in any aspect of 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 Principai 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 rnaximum 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 EIGHTH: BOOKS AND RECORDS - and Indemnitor(s) shall provide to Surety within 120 days of their fiscal year end, Principal(s) financial statements prepared in accordance with Generally Accepted Accounting Principles, and reports prepared by reputable accounting firms prepared in accordance with the AlCPA'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 fumish 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, renew or extend any Bond, including final may decline to execute, 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. ELEVENTH: TRUST FUND - To the extent permitted under applicable law, 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 concemed, 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. 7300 3/8 rev. 06/10 FILED: KINGS COUNTY CLERK 10/30/2023 08/08/2022 03:16 08/24/2023 05:31 PM 12:41 INDEX NO. 515382/2022 NYSCEF DOC. NO. 88 6 59 RECEIVED NYSCEF: 10/30/2023 08/08/2022 08/24/2023 THIRTEENTH: SETTLEMENTS - The Surety shall have the right, at its a.ption 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 legai 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 judgrnent attorneys' or judgments rendered or that may be rendered, with interest, costs, expenses and 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 lÀdemnitor 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 obliga