THIS RETAIL PRODUCER BAIL BOND AGREEMENT is made and entered into this _________________, 20__, by and between O’SHAUGHNAHILL SURETY & INSURANCE, INC., a Florida Corporation ("Company"), and _________________________ (collectively "Producer”) and _________ ("Producer Indemnitor").
DEFINITIONS. As used herein, the term "Company" shall refer to O’SHAUGHNAHILL SURETY & INSURANCE, INC. or its designee. As used herein, "Producer" shall collectively refer to ___________________________, and such other companies and businesses, which may be established in furtherance of Producer’s expansion of its bail bond business. “Producer” shall mean an independent contractor duly licensed by its state of operation as a bail bondsman and contracted by Company to issue bail bonds for Company. Where applicable, the term "Producer" shall mean "Producer, its employees and its independent contractors." Producer and Producer Indemnitor shall be fully liable to Company for the bonds written by, as well as the acts and/or omissions of, Producer, Producer’s employees, and independent contractors. Producer and Producer Indemnitor shall be liable to Company for all liabilities, claims, and demands, without limitation, which arise from or relate to bail bond Powers of Attorney entrusted to Producer by Company, regardless of who actually executes said bonds. The terms "bail bond," "undertaking," "bond," and "Power of Attorney" shall be interchangeable unless otherwise indicated.
GENERAL PURPOSES. Subject to the following terms and conditions, Company shall supply bail bond Powers of Attorney to Producer. Producer shall at all times remain duly licensed and qualified as a surety bail Producer in its respective state(s) of operation as required by law. Producer may solicit and execute bonds in states where Producer is duly licensed, has been issued a Qualifying Power of Attorney to operate by Company, and has been duly appointed by Company. Producer guarantees that it will ensure that it and its employees and independent contractors shall comply with all of the terms and conditions of this Agreement and any other agreement that its employees and/or independent contractors sign relating to the issuance of Company’s bail bonds. Producer and Producer Indemnitor hereby expressly assume the duty to indemnify and hold Company harmless from any and all acts or omissions of Producer or its employees and independent contractors, including the payment of Company’s attorney fees. Producer is not authorized to act as a General Agent Producer under the terms of this contract, and therefore shall not contract with any sub-Producer(s) to issue Company bail bond Powers of Attorney.
STATUS. The relationship between Company and Producer created by this Agreement is that of principal and independent contractor. Producer is not an employee of Company, and shall have no power or authority to bind Company with respect to any obligation or liability whatsoever, except as specifically set forth herein. Producer shall have exclusive control over its agency and employees. Producer shall set its own working hours, and shall retain or discharge employees or independent contractors at Producer's sole discretion. Producer shall not use or allow the use of the name of Company in any advertising or in any manner, which may induce a belief that Producer is an employee of or in any way associated with Company other than Company’s supplying of bonds to Producer in a wholesale manner. Producer shall receive no wages, salaries, or other compensation from Company. Producer is solely responsible for seeking out and obtaining any and all specialized knowledge and skills necessary in his or her professional function, and is similarly solely responsible for the proper screening, selection, and hiring/retaining of all its employees and/or independent contractors. Producer agrees to be familiar with and abide by the laws and regulations which apply to any business Producer conducts or Producer performs pursuant to this Agreement. Producer’s obligation to abide by such laws and regulations shall supersede any other requirement arising out of this Agreement. The use of the term "Producer" in this Agreement is for the convenience of the parties only, and is not intended to alter the relationship of principal and independent contractor. Notwithstanding the above definition of the relationship between Company and Producer, it is expressly understood and agreed that Producer occupies a fiduciary relationship with Company in relation to the conduct of its business. However, Company is not the fiduciary of the Producer.
PRODUCER'S EXPENSES. Producer shall bear any and all expenses incurred in the conduct of Producer's business, and all expenses incurred by Producer in complying with applicable laws, rules, and regulations promulgated by the jurisdiction(s) in which Producer causes Company’s bail bonds to be posted, as well as all expenses incurred in carrying out Company’s instructions/directions.
POWERS OF ATTORNEY. Company shall furnish Producer with bail bond Powers of Attorney (“Powers”) issued by Company in numbers and denominations and at such times as Company, in its sole discretion, shall determine. Producer shall not allow any unlicensed or unauthorized person to possess such Powers of Attorney, and upon receipt of Powers shall be solely responsible for said Powers. Said bail bond Powers of Attorney shall be delivered to Producer in trust, and Producer shall act as trustee with regard to same, with Company being the beneficiary thereof. A Powers Inventory Receipt will accompany each group of Powers issued by the Company to Producer. Producer shall sign the Powers Inventory Receipt, and shall thereby acknowledge the receipt of such listed Powers and then return the signed Powers Inventory Receipt to the Company immediately. Powers of Attorney issued by Producer shall be reported to Company, with full premium remittance as herein described, within sixty (60) days of the issuance of each such Power of Attorney by Producer. Producer shall be authorized to utilize such bail bond Powers of Attorney to post bail bonds at such time as Producer has obtained collateral for Company's benefit consistent with the guidelines set forth in the Letter of Underwriting Authority (Exhibit A) executed by Producer and attached hereto and made a part hereof. It shall be considered a misuse of funds and breach of Producer's fiduciary duties to Company to post any bail bond without sufficient collateral, as set forth in the Letter of Underwriting Authority. Whenever demanded by Company, Producer shall immediately surrender or deliver to Company or its authorized representative any and all unused Powers of Attorney. Should any Powers of Attorney be unaccounted for, stolen, or otherwise lost, Producer shall report same to Company as unaccounted for, stolen, or lost, and, unless otherwise directed by Company, shall within seven (7) days of obtaining knowledge of such deficiency, make full premium remittances, pursuant to the bail bond contract rate, herein described at paragraph 8, based on the maximum denominations thereof. In addition, in the event that such bail bond Powers of Attorney are not returned or properly accounted for within said seven (7) day period, Producer shall be liable to Company for the maximum penal amount of all bonds which could have been posted with the missing Powers of Attorney. Should any such Powers thereafter be found and returned to the Company with satisfactory evidence that the same had never been issued or posted and that Company had never become liable thereon, Company shall refund all amounts paid thereon by Producer. Powers of Attorney that are not issued before the expiration date shown on the face of the Power of Attorney shall be returned to the Company within seven (7) days of expiration. Expired Powers not returned within this time period shall be considered lost Powers and shall be treated as such. The Company, at its option, may accept Lost Power Affidavits from Producer in lieu of premium payment.
REGULATION OF BOND EXECUTIONS. Company may, from time to time at its discretion, direct Producer to refrain from executing, issuing, or renewing Powers of Attorney on behalf of any defendant/bond principal. Company may, at its discretion, set a maximum single undertaking amount limit for Producer, and Producer shall agree that it will not issue or authorize to be issued any bail bond in excess of said limit without first obtaining the express approval of Company for each such bond. Unless Company gives a greater authority to Producer in writing, the limit for any single bond to be posted by Producer, its employees, or independent contractors shall be the limit stated on the Letter of Underwriting Authority executed by Company at the time this Agreement is adopted. Producer may further restrict the authority of its employees and independent contractors, as Producer deems prudent.
BOND COLLATERAL. Producer shall solicit, collect, protect, insure, return, apply, and deliver to Company collateral as directed by Company. Such collateral is to include but not be limited to real property, personal property, currency, securities, or any other thing of value. Company may direct Producer to insure, return, deposit, apply, or deliver collateral to protect its interests. Company shall be named trustee on any build up fund/reserve account, indemnity account, client trust fund, or collateral account, and is the intended beneficiary thereof. All cash collateral taken on Company's bail bonds shall be held in a separate cash collateral account and shall not be commingled with any other funds. Company shall be entitled to inspect immediately all collateral taken and all such accounts of Producer, along with any general business account(s), upon request by an authorized representative of Company. Company may, at its discretion, direct Producer to deliver immediately any and all collateral of any sort taken by Producer at any time as bond security to Company; such collateral shall be identified by bond number, indemnitor, and principal, to be held in trust by Company until released to Producer or directly to the party who gave such collateral, and Company shall be the beneficiary of same. Producer shall hold such collateral as a fiduciary in a manner that complies with all laws and administrative regulations of the State, and Producer shall indemnify and hold Company harmless as to any action regarding the taking, maintenance, or return of such collateral. Producer shall provide collateral indemnitor with a properly completed collateral receipt for each bail bond issued. The signed collateral receipt given to the indemnitor will show "Personal indemnification only, no real or personal property, no cash" if no collateral is taken. However, nothing contained in this paragraph is intended to alter Producer’s duty to take collateral for each bond in an amount that will fully secure Company. Receipt will only be the receipt form provided by Company as part of Power of Attorney form. Where law does not allow Company receipt form, Producer shall only use a Company-approved form that complies with state law. In the event that Producer fails or refuses to provide the Company with receipts and collateral for executed bonds, then it shall be conclusively presumed in any litigation, lawsuit, or other proceeding between the Company and Producer, or in which the Company has a beneficial interest in the claim, that: 1) Producer received collateral for the bond in the full face amount of the bond as trustee for Company; 2) such collateral is in the possession, custody, and control of Producer; and 3) Producer, as Company's fiduciary trustee, has failed to account for such collateral and is solely liable for the taking, supplying, maintenance, and return thereof.
BOND PREMIUM RATES, COLLECTION AND REMITTANCES. Company shall have the right to fix and/or change bond premium rates to be charged to the public. Any premium rate increase or related fee increase to the public shall be collected by Producer and remitted to Company as herein provided. Producer shall have no authority whatsoever to vary the bond premium rates fixed by Company, and shall charge premiums for bonds based solely on such rates.
Unless otherwise authorized and/or directed by Company, and without regard to premium credit extended to customers, Producer shall remit to Company within sixty (60) days of execution of each bond hereunder such cash sums for premiums as will equal 1% ($10.00 per $1,000.00) of the total liability for each bond written. Company shall charge a minimum of $10.00 per bond issued.
All bond premiums chargeable, charged, receivable, collected, and/or held by Producer shall belong solely to Company until actual receipt by Company of the amount to which the Company is entitled as described herein. Once Company has been paid any amount due to it in respect to bond premium, Producer shall retain all remaining premiums collected or outstanding.
Producer shall have no right to direct compensation from Company. Producer’s compensation for performance of his duties under this Agreement shall be limited exclusively to the difference between the collected bond premiums on bonds written by Producer and the amount to which Company is entitled with respect to those bonds as indicated above in paragraph 8(a) and below in paragraph 19 of this Agreement.
PRODUCER'S DUTIES WITH REGARD TO BOND ADMINISTRATION. Producer shall be solely responsible for its and its employees’ and/or independent contractors’ satisfying bail bond forfeitures; investigation of bail bond principals and prospective bail bond principals; negotiation, settlement, and/or satisfaction of claims against Company and/or Producer by bail bond principals, courts, and/or others; and for any and all other matters of bail bond administration hereunder. Producer shall make or cause to be made any and all necessary and warranted legal motions to preserve, reinstate, and exonerate bonds at Producer's sole expense. Producer shall pay timely any and all cost assessments imposed by any court for bond exoneration, and shall be responsible for the timely payment of any and all judgments entered on all bonds entrusted to Producer by Company, regardless of who actually posts said bonds. All legal actions and/or motions related to bail bond forfeiture shall be brought in the name of Producer or its agency unless the laws of a particular jurisdiction require otherwise, in which case Producer shall clearly designate its agency status in such action(s).
Producer shall supply Company with a court-stamped copy of any and all motions for appeal of forfeiture immediately upon filing such motion. Producer shall also supply Company with a copy of the Court’s answer to such motions immediately upon the Court’s issuance of such ruling.
Producer shall supply Company with proof of payment of forfeiture or proof of exoneration no later than the day that the forfeiture is due for payment. Company may, at its discretion, require Producer to satisfy/pay a forfeiture prior to the forfeiture payment due date and to provide immediate proof that Producer has done so.
Producer shall supply Company with a copy of any forfeiture notice received where Company was not the sender. This paragraph applies to states and jurisdictions where the authorities are not required by law to notify Company directly of any and all forfeitures.
PRODUCER DUTIES WITH REGARD TO BOND PRINCIPAL. Producer shall be solely responsible for negotiating, underwriting, securing, and posting bail bonds issued to secure the release from custody of bail bond principals/defendants. Producer shall be responsible for all dealings with bail bond principals/defendants, including but not limited to their court appearances, apprehension, holding, movement, arrest, extradition, and/or surrender (hereinafter "dealings with bond principals/defendants"). Producer’s dealings with bail bond principals/defendants shall be conducted in compliance with all applicable laws, statutes, regulations, and prudent business practices utilized in the bail bond business. Producer shall be solely responsible for any damages arising from or occasioned by dealings with bail bond principals/defendants. Should any damages or legal action for damages arise from Producer's dealings with bond principals/defendants or others in the absence of written consent from Company, Producer's contract collateral build up funds and/or Indemnity Funds shall be used for payment of any damages, defenses, or attorney's fees. Producer shall indemnify Company and hold Company harmless from any and all damages or actions against it, including but not limited to the payment of Company’s attorney fees, with respect to the handling, apprehension, arrest, or surrender of any bond principal/defendant, or any other aspect of his or her bail bond business transactions. Producer shall exercise extreme care in its dealings with bail bond principals/defendants, and shall exercise the utmost care and caution in the selection of persons assisting Producer in dealings with bail bond principals/defendants.
NOTICE TO COMPANY OF PENDING ACTION. Producer shall notify Company in writing, immediately upon Producer’s becoming aware of any and all legal or administrative proceedings wherein Producer or Company, as a result of Producer’s actions, is named defendant or the subject of the administrative action or investigation. Upon request of Company, Producer shall supply Company with copies of all documents related thereto, and shall supply Company with all requested information. This provision does not apply to bail bond forfeitures or bail bond summary judgments.
NON-LIABILITY OF COMPANY FOR SERVICE. Company will use reasonable efforts to supply Producer with a listing of Producer’s bond forfeitures, judgments, and demands (including transfer bonds) as provided to Company by the Courts. Company will do this as a courtesy to Producer, and Company does not guarantee the accuracy of said forfeiture listing. In all respects, it is the duty of Producer to obtain accurate information concerning the status of all bonds posted with bail bond Powers of Attorney entrusted to Producer by Company. Producer is not justified in relying on Company’s courtesy reports of forfeitures.
TRANSFER BONDS. Company, at its discretion, will provide for the posting of transfer bonds at the request of Producer. Company assumes no responsibility or liability for the transfer bond process or notice related thereto. Producer acknowledges the risks involved with the transfer bond process and fully accepts same, and agrees to hold Company harmless for any and all losses related thereto.
RECORDS AND REPORTS OF PRODUCER. Producer acknowledges and agrees that it is its fiduciary duty to the Company to maintain all files and records concerning each and every Company bond that has been executed by Producer for a period of five (5) years from the execution date of each bond. Such records shall include but not be limited to Applications and Contracts for Bail Bonds, Indemnity Agreements, Promissory Notes, Receipts for Collateral taken on bonds, complete description of the collateral, statement of the value of collateral at the time of receipt, documents showing the current location and condition of such collateral, and any form or written communication associated with the writing of Company bonds (hereinafter "Company files"). All such Company files shall be open and available for inspection by Company at all times. If Producer and/or Company terminate their relationship hereunder for any reason, Producer acknowledges Company's superior claim to Company files and shall release, upon request, to Company all Company files for photocopying purposes. Within a reasonable time thereafter, but in no event to exceed thirty (30) calendar days, Company shall return Company files to Producer, either by original or copy, at Company's discretion. Producer waives prior notice should Company seek a court order to enforce this paragraph, and hereby stipulates that Company is entitled to mandatory, ex parte injunctive orders without notice to enforce these provisions.
TERMINATION OF BOND LIABILITY. Producer shall report any and all terminations of bail bond liability, on a regular basis not to exceed fifteen (15) days beyond termination of liability for each bail bond. Any and all bail bonds exonerated by operation of law or by Producer initiated motion shall be reported, and the date of exoneration shall be noted. At Company's discretion, court documents evidencing liability discharge may be required of Producer. Producer shall comply with any request by Company for status reports/updates on any large undertakings or forfeitures at any time Company so requests. Producer shall report the manner of exoneration for each forfeited bond to Company (payment, surrender of defendant, exoneration by motion, etc.).
PRESERVATION OF INTERESTS OF THE COMPANY. Producer shall comply with any and all procedural directions, rules, and regulations distributed by Company for adoption by Producer. Unless otherwise directed, Producer agrees to make no alteration, modification, or amendment to any obligation or document of Company. Producer agrees to keep confidential any and all such Company instructions and information. Producer shall make no reference to Company in any advertising, nor shall it do anything whatsoever that may create additional obligations and/or liabilities for Company and/or impair goodwill towards Company. Producer shall keep confidential all Company instructions and information. Producer shall also avoid any acts or omissions that may create unauthorized liabilities for Company or impair Company’s business reputation.
GENERAL INDEMNIFICATION. In addition to any and all liability otherwise stated herein, Producer and Producer Indemnitor shall be responsible to Company for legal actions brought for nonperformance of this Agreement, subject to Special Indemnification paragraph; general indemnification is made as follows:
Producer and Producer Indemnitor shall indemnify and hold Company harmless for 100% of the liability created on bonds posted with bail bond Powers of Attorney entrusted to Producer, regardless of who posts said bonds and collateral attaching thereto; and
Producer and Producer Indemnitor shall indemnify and hold Company harmless for 100% of the liability written by Producer and collateral attaching thereto; and
Producer and Producer Indemnitor shall indemnify and hold Company harmless for 100% of all reasonable costs, expenses, and liabilities that Company may sustain or incur in connection with the Producer’s performance of its bail bond business and the subject matter of this Agreement. These liabilities are to include but not be limited to bond forfeitures, travel expenses (including food and lodging), telephone and postage expenses, special assistance fees, special employment expenses, investigators' fees, attorneys’ fees, accountants' fees, experts' fees, collection fees, trial preparation expenses, court costs, copying expenses, messenger and courier fees, legal research expenses, electronic research, asset checks, court transcripts, costs of investigating jurors and potential jurors, penalties, judgments, judgment execution expenses, and the like. The bail bond business and subject matter of this Agreement include but are not limited to the execution and/or administration of bonds; the collection of premiums; the forfeiture of bonds; audits by Company; the investigation of bonds; the negotiation and settlement of bond claims; the location, apprehension, holding, movement, extradition, and/or surrenders of bond principals or suspected bond principals; the collection, protection, investment, transmission, and/or application of collateral; the negotiation and settlement of charges, claims, and demands of whatever type and nature; and the participation in any judicial or administrative proceeding, voluntarily or otherwise.
Producer and Producer Indemnitor release all errors and waive all rights to a stay of execution or appeal; and consent to liability to any separate property, as well as community property, whether real, personal or mixed, that Producer and Producer Indemnitor may or hereafter have any interest in, and Producer and Producer Indemnitor hereby irrevocably waive the benefits or advantages of any and all valuation, stay, appraisement or homestead exemption law or laws of any State of the United States now in-force or hereafter enacted.
SPECIAL INDEMNIFICATION. In the event this Agreement is breached by any party hereto and/or there is any action by any party hereto to enforce contractual compliance, if not conflicting with other paragraphs herein, Producer and Producer Indemnitor shall indemnify and hold Company harmless for any and all damages, losses, injuries, costs, expenses, and liabilities occurring in connection with such breach or action. If it is adjudicated or in some other way determined that Producer has breached this Agreement, for any and all damages, Producer and Producer Indemnitor shall indemnify Company for any and all losses, injuries, costs, expenses, and liabilities occurring in connection with such breach or action. These liabilities are to include but are not limited to loss of business assets and/or goodwill, liabilities to any party hereto, liabilities to third persons, travel expenses (including food and lodging), investigator's fees, attorney's fees, accountant's fees, expert's fees, collection fees, trial preparation expenses, court costs, penalties, and judgment execution expenses. This Special Indemnification does expressly extend to and include any action brought for criminal, tortuous, and/or intentional misconduct by Company or Producer or its employees and independent contractors, or by any person acting as their Producer or on their behalf.
As security for any and all indemnifications set forth in paragraphs 17 and 18, and/or the failure of Producer, its employees, or independent contractors to comply with this Agreement in any way, and without limitation to the scope thereof or liability therefor, Producer shall deliver to Company a cash sum equal to 1% ($10.00 per $1,000.00) of the total liability for each bond written by Producer. The initial and subsequent deposits into, and the income therefrom and the investment and reinvestment thereof, shall be known as the "Indemnity Funds.” Company shall maintain separate bank account(s) for the Producer.
Neither Producer nor anyone else will be entitled to notice of any action taken, or to be taken, by Company with regard to Indemnity Funds. However, Company will subsequently account for such action to Producer in a manner consistent with proper accounting procedures.
Company may convert non-cash assets to cash either by sale or otherwise for such values as it deems appropriate. However, Company will subsequently account for such action to Producer.
Producer making deposits thereto will pay any and all taxes due and payable with respect to income and/or principal of Indemnity Funds.
Company may withdraw monies from the Indemnity Funds as Company deems necessary to reimburse itself for expenses directly related to maintaining the Indemnity Funds.
Company may withdraw funds from the Indemnity Funds to pay for, or reimburse itself for, expenses for which it is indemnified against by Producer in other paragraphs of this Agreement.
Upon termination of this Agreement, only after every bond written by Producer is exonerated, or otherwise determined satisfied; and all other debts of Producer to Company are paid, will the balance of the Indemnity Funds be delivered to the Producer.
Company may withdraw monies from the Indemnity Funds as Company deems necessary to reimburse itself for unpaid bail bond premiums.
If indebtedness of Producer to Company exceeds the indemnity fund amount, the indebtedness shall bear interest at the maximum statutory rate allowable by law, calculated as simple interest on a monthly basis and calculated from the first day of indebtedness.
Company shall have the right to invest and reinvest any and all cash sums and/or other assets, as it shall deem proper and any and all income therefrom shall be invested and reinvested, as Company shall determine. Company shall not be liable to Producer for any investment losses suffered by the Indemnity Funds unless such losses are the result of either bad faith or gross negligence by Company.
All gains and losses derived from the investment of the Indemnity Funds shall belong to Producer, provided, however, that this shall not limit Company’s rights to deal with Indemnity Funds as otherwise described in this Agreement. Indemnity Funds shall benefit and burden Producer and not Company except to the extent that gains or losses will increase or decrease Company security. Producer shall be solely responsible for any taxes on income and losses derived from Indemnity Funds. Such taxes will not be paid out of Indemnity Funds.
INDEMNIFICATION REMEDIES OF COMPANY. When or if Company is entitled to indemnification under this Agreement, with the exception provided elsewhere herein for bond forfeitures, in addition to any other rights and remedies it may have under this Agreement, at law and/or equity, Company shall have the right to do one or more of the following:
Direct any party hereto so indemnifying Company to pay part or all of the underlying loss, expense, or obligation;
Pay part or all of the underlying loss, expense, or obligation from the Indemnity Funds; and/or
Pay part or all of the underlying loss, expense, or obligation directly and to reimburse Company for its prepayments of these in accordance with (a) and/or (b). Reimbursement to Company will be completed before reimbursement is made to any other party.
It is within the sole discretion of Company to direct Producer to defend and protect Company in any legal action, or to direct Producer to refrain from defending Company. Regardless of the election made by Company, Producer is responsible for all expenses incurred by the Company.
PRESERVATION OF INDEMNITY FUNDS. Should Company make an Indemnity Funds withdrawal for indemnification herein described, Company may, at its sole discretion, require Producer to reimburse said fund in the amount withdrawn, either forthwith or in installments as determined by Company. Under extraordinary circumstances, Company may, at its sole discretion, pay a forfeiture from the Producer’s Indemnity Funds at Producer’s request, but shall have no obligation to do so.
LICENSE AND APPOINTMENT. As part of its application to Company for the appointment, Producer shall initially provide Company a copy of its licensing package, including active license, contract, contract collateral, completed application, and financial statement for Producer and each Producer Indemnitor. Producer shall provide to Company an Application for Bail Producer Appointment and a copy of the active license for each employee or independent contractor to be appointed by Company for Producer. Company, at its option, may cancel the appointment of or refuse any request of Producer to appoint an employee or independent contractor. When requested, Producer shall supply a criminal background check of each employee or independent contractor to be appointed by Company for Producer. Producer shall provide Company with a copy of the license and appointment renewal within seven (7) days of receipt of such from authorities for the Producer and its employees/independent contractors that are performing the duties of bail agents for Producer. Under no circumstances shall Producer allow its employees’/independent contractors’ required license(s) and/or appointment(s) to lapse while this Agreement is in effect.
CONTRACT COLLATERAL. As a condition of this Contract, Producer shall provide to Company collateral in the form of $1,000.00 (One Thousand Dollars and No Cents) deposit into the Indemnity Funds, and shall name Company or its designee as beneficiary as required by Company. Producer shall provide collateral (herein referred to as "Contract Collateral") as additional indemnification to be used against losses in excess of its Indemnity Funds and in excess of bond collateral in possession of Producer. Company shall be named beneficiary of contract collateral. This collateral shall be held, applied, and/or returned to depositor in a like manner as is described and called for in paragraph 19 entitled "Indemnity Funds."
24. BAIL BOND FORFEITURES. As a courtesy, Company shall make an effort to notify Producer of receipt of any bail bond forfeitures, whether threatened or declared, that Company receives from the Courts. However, in all instances, it shall be Producer’s sole responsibility and duty to monitor properly the status and forfeitures of all bonds posted with bail bond Powers of Attorney entrusted to Producer by Company, including all transfer bonds caused to be posted by Company at Producer’s request, regardless of who posts said bonds. Producer shall take any and all necessary and lawful steps to terminate forfeiture liability within the applicable statutory time frame. When or if it is deemed necessary that such forfeiture or resulting judgment be paid, then in addition to any other rights and remedies it may have under this Agreement, at law and/or equity, Company shall have the right to do any one or more of the following:
Direct any party hereto indemnifying Company from forfeiture judgment to pay any part or all thereof;
Pay part or all of the forfeiture judgment from the indemnity Funds or contract collateral posted by Producer and/or Producer Indemnitor;
Pay and/or direct payment of part or all of the forfeiture judgment from any forfeiture collateral held for such bond;
Direct the bond principal and/or anyone guaranteeing, assuring, or indemnifying Company and/or any other party hereto against loss by reason of the bond principal's noncompliance to pay part or all of the forfeiture judgment; and/or
Company may pay part or all of the forfeiture judgment and reimburse itself in accordance with (a), (b), (c), and/or (d) of paragraph 20. All such rights of Company to reimbursement shall be primary to any such rights of any other party hereto, any holder of interests in and to collateral described in (c), and/or anyone described in (d).
FINANCIAL INFORMATION. At any time during the term of this Agreement, Producer and Producer Indemnitor shall provide a personal financial statement to Company at Company's request. Producer and Producer Indemnitor also agree that Company may, at its discretion, request and receive personal credit information regarding Producer and Producer Indemnitor from consumer reporting services. Producer and Producer Indemnitor shall provide, on request, information necessary for Company to verify Producer's and Producer Indemnitor’ net worth. In the event that Producer and/or Producer Indemnitor are the trustees and/or beneficiaries of any trust agreements, their signatures on this Agreement are intended to bind them in their capacity as trustees and/or beneficiaries as well, thus making such trusts and the assets of any such trusts specifically liable for the obligations assumed by Producer and Producer Indemnitor herein. Producer and/or Producer Indemnitor agree that investigative inquiries can be made by Company at any time including but not limited to consumer, criminal, driving and other reports.
ASSIGNMENT OF RIGHTS AND DUTIES. Company may contact, substitute, or join with another underwriter, surety, and/or reinsured on any or all bonds. Whenever possible, such agreement shall be evidenced by addendum hereto, executed by all parties to this Agreement. However, the failure to provide such an addendum shall not affect the validity of any agreements described herein. Producer shall make no assignment of any right or obligation hereunder to anyone other than Company without the prior written consent of Company.
FAILURES TO DECLARE BREACH NOT A WAIVER. The failure of Company to terminate or declare a breach of this Agreement on a particular occasion when such action is allowed hereunder shall not be construed, interpreted, or pleaded as either an express or implied waiver of the right to do so at a later date, nor shall it be deemed an express or implied waiver of any right of obligation hereunder. To the maximum extent possible, Producer and Producer Indemnitor hereby waive any and all statutes of limitation otherwise applicable to Company’s enforcement of its rights.
APPLICABLE LAW, VENUE, AND FORUM. The Agreement and any claim arising thereunder, sounding in contract or tort, is to be interpreted in accordance with the laws of the State of Texas, where Company is based. The parties hereto do hereby consent and stipulate that any dispute arising under or in connection with the Agreement or related to any matter which is the subject of the Agreement shall be subject to the exclusive jurisdiction of the courts located in Houston, Texas. Further, Producer, and Producer Indemnitor waive any objection to venue of any such proceeding in Houston, Texas, for any reason or under any theory, including forum non conveniens.
INDEBTEDNESS OF PRODUCER TO COMPANY. Producer’s indebtedness to Company shall bear interest at the maximum statutory rate allowable by law, calculated as simple interest on a monthly basis, and may be charged to Producer directly or reimbursed to Company through withdrawal from the Producer's Indemnity Fund accounts.
MODIFICATION OF THIS AGREEMENT. This Agreement and the accompanying Letter of Underwriting Authority constitute the entire agreement of the parties with respect to the subject matter hereof. This Agreement supersedes and cancels all prior statements, representations, negotiations, understandings, agreements, and communications, whether verbal or written, with respect to or in connection with the subject matter hereof. Each of the parties hereto acknowledges that this Agreement expresses his, her, or its entire understanding, that there have been no representations made by any party hereto except as set forth herein, and that this Agreement shall not be subject to change or modification except by execution of an addendum or another instrument in writing subscribed to by each of the parties hereto.
TERMINATION OF THIS AGREEMENT. Any party hereto may terminate this Agreement, with or without cause, upon their written notice of their desire to terminate the Agreement. Producer agrees no longer to solicit and/or execute Company bail bonds upon notice of termination of Agreement. All other rights and duties of each party hereto shall continue thereafter until final determination and satisfaction of the entire subject matter of this Agreement (including the exoneration of any and all bonds executed hereunder prior to such notice), and thereupon this Agreement shall be finally terminated. Until all Company bail bonds issued by Producer hereunder are exonerated or paid, Producer shall remain obligated to perform fully and to protect Company as described elsewhere herein. Upon notification and final determination and satisfaction of all bail bonds written by Producer and full performance of this Agreement, the Agreement will be completely terminated.
BENEFITS AND OBLIGATION OF SUCCESSORS. This Agreement shall continue and run to the benefit of and be binding upon the estate, heirs, representatives, transferees, successors, and assigns of each party hereto unless such continuation conflicts with an express term contained elsewhere herein, or it conflicts with the intent of the parties as determined from viewing this Agreement as a whole. The rights of the Producer to issue Company bail bonds under this Agreement are not transferable to Producer’s estate, heirs, representatives, transferees, successors, or assigns.
SEVERABILITY AND GRAMMATICAL CONSTRUCTION. If any provision or item of this Agreement or the application form is held invalid, such invalidity shall not affect other provisions, items, or applications of this Agreement which can be given effect without the invalid provisions, items or applications, and to this end the provisions of this Agreement are hereby declared severable. Any word wherever used in this Agreement, either severally or conjunctively, shall be construed in the plural where the equitable interpretation of Agreement so requires, and the necessary grammatical changes to make the provisions hereof apply either in the singular or in the plural shall, in all cases, be assumed as though in each case fully expressed.
DOCUMENT IMAGING CONTRACT LANGUAGE. Producer and Producer Indemnitor acknowledge that Company has advised Producer and Producer Indemnitor, and agree that Company may image the original paper Contract and related documents ("Imaged Documents") electronically, and may thereafter destroy such paper originals at Company’s discretion. Producer and Producer Indemnitor, for themselves and on behalf of their successors and assigns, (a) stipulate that the Imaged Documents (i) shall be valid, binding, and enforceable against them to the same extent as the original paper documents and (ii) shall be admissible in any actions, lawsuits, and other judicial, administrative, or governmental proceedings based upon, in whole or part, the Contract and associated documents; (b) waive all objections as to the admissibility of the Imaged Documents; (c) waive all required or other rights of any kind now or hereafter provided by law that Company produce the original paper documents to prove the content thereof; and (d) waive all defenses or other claims as to the authenticity of the Imaged Documents unless Producer and/or Producer Indemnitor tenders to Company the original paper document in dispute.
DOCUMENT IMAGING CONTRACT LANGUAGE. Producer and Producer Indemnitor acknowledge that Company has advised Producer and Producer Indemnitor, and agree that Company may image the original paper Contract and related documents ("Imaged Documents") electronically, and may thereafter destroy such paper originals at Company’s discretion. Producer and Producer Indemnitor, for themselves and on behalf of their successors and assigns, (a) stipulate that the Imaged Documents (i) shall be valid, binding, and enforceable against them to the same extent as the original paper documents and (ii) shall be admissible in any actions, lawsuits, and other judicial, administrative, or governmental proceedings based upon, in whole or part, the Contract and associated documents; (b) waive all objections as to the admissibility of the Imaged Documents; (c) waive all required or other rights of any kind now or hereafter provided by law that Company produce the original paper documents to prove the content thereof; and (d) waive all defenses or other claims as to the authenticity of the Imaged Documents unless Producer and/or Producer Indemnitor tenders to Company the original paper document in dispute.
FORMS. Producer agrees that only Company-approved forms will be used when transacting Company business. Where required by regulation or statute, Producer shall only use or cause to be used by its employees and independent contractors Company-approved forms that have been filed with and approved by the respective state Department of Insurance.
WRITTEN NOTICES. Any written notice given hereunder shall be deemed received by the addressee upon deposit of the same in the United States Mail with proper first class postage affixed thereto, addressed as follows or to the recipient’s last known address:
FURTHER ASSURANCES. The parties agree to execute such other and further documents and instruments as may reasonably be requested to implement the provisions of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day and year first above written.
O’SHAUGHNAHILL SURETY & INSURANCE, INC.
