Exhibit 4.5
SURETY AGREEMENT
TO: SOVEREIGN BANK, 0000 Xxxxxxxxx Xxxxxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx
00000 ("Lender")
Attention: Xxxxxxx X. Xxxxxxx, Vice President:
In consideration of Lender making or continuing to make loans or
otherwise becoming or continuing as a creditor of MORO/RADO ACQUISITION CORP.
("Debtor"), and intending to be legally bound hereby, Undersigned
unconditionally becomes surety to Lender, its successors, endorsees or assigns,
for the prompt payment when due of all amounts now or hereafter due to Lender by
Debtor, whether at maturity, or by demand, declaration, acceleration or
otherwise (collectively, "Liabilities").
This Agreement shall continue in full force and effect until payment in
full of all Liabilities and shall continue in full force and effect until
written notice of termination shall be given to Undersigned by Lender, provided
that any termination hereof shall not affect any outstanding Liabilities in
existence prior to the termination hereof which continue beyond the date on
which such termination notice is sent. The provisions hereof shall survive
termination hereof.
All of the Liabilities shall become immediately due and payable by
Undersigned, anything contained herein to the contrary notwithstanding,
immediately upon the occurrence of an Event of Default (as defined in Section
8.1 of the Loan and Security Agreement of even date herewith by and among Lender
and Debtor), as such Agreement may be amended, modified, supplemented, or
restated, at anytime from and after the date hereof.
Undersigned waives: (a) all notices, including, but not limited to: (i)
notice of acceptance of this Agreement; (ii) notice of presentment, demand for
payment, or protest of any of the Liabilities, or the obligation of any person,
firm or corporation held by Lender as collateral security; (b) all defenses,
offsets and counterclaims which Debtor or Undersigned may at any time have to
any of the Liabilities; (c) trial by jury and the right thereto in any action or
proceeding of any kind, whether arising on, out of, under or by reason of this
Agreement or any other agreement or transaction between Undersigned, Lender
and/or Debtor; and (d) all notices of the financial condition or of any adverse
or other change in the financial condition of Debtor.
The Liabilities shall not be affected, impaired or discharged, in whole
or in part, by reason of the dissolution of Undersigned or the fact that any of
the Liabilities may become due or payable in, or in connection with, or by
reason of, any agreement or transaction (or part thereof) which may be invalid,
irregular or unenforceable for any reason. The Liabilities of any partnership,
firm, corporation or other company which may be a successor to Debtor shall be
included among the Liabilities for which Undersigned is surety hereunder. Lender
shall have the right to proceed against Undersigned immediately upon any default
by Debtor and shall not be required to take any action or proceeding of any kind
against Debtor or any other party liable for the Liabilities, or any security
which Lender may hold, before proceeding against Undersigned hereunder.
The Liabilities of Undersigned shall not be affected, impaired or
discharged, in whole or in part, by reason of any action whatsoever taken by
Lender (including, without limitation, sale, lease, disposition, liquidation or
other realization) which may be negligent, willful or otherwise in respect to
any security in which Lender may at any time have any interest or against any
other party liable for all or any part of the Liabilities.
Lender shall have the right from time to time, and at any time in its
sole discretion, without notice to or consent from Undersigned, and without
affecting, impairing or discharging, in whole or in part, the Liabilities, to
modify, change or supplement, in any respect whatsoever, any indebtedness or
evidence thereof, or any agreement or transaction between Lender and Debtor or
between Lender and any other party liable for the Liabilities, or any portion or
provision of any thereof; to grant extensions of time and other indulgences of
any kind to Debtor or any such other party; to compromise, release, substitute,
exercise, enforce or fail or refuse to exercise or enforce any claims, rights or
remedies of any kind which Lender may have at any time against Debtor or any
other party liable for the Liabilities, or any thereof, or with respect to any
security of any kind held by Lender at any time under any agreement or
otherwise.
Lender shall have a continuing lien upon all monies, deposits, stocks,
bonds and all other personal property, tangible or intangible, similar or
dissimilar thereto, at any time coming into possession of Lender belonging to
Undersigned, as security for the obligations of Undersigned hereunder. Lender
shall have the right forthwith in case of default by Debtor or by Undersigned to
seize and set-off on account of any of the Liabilities hereunder any such monies
or deposits and with the right to sell any or all personal property under the
terms and provisions of the Pennsylvania Uniform Commercial Code. If at any time
Debtor shall be in default of the terms of any obligation to or agreement with
Lender, the entire indebtedness of Debtor shall be immediately due and payable
to Lender, for purposes of this Agreement and the obligations hereunder,
anything to the contrary notwithstanding in any agreement or undertaking by and
between Lender and Debtor.
Undersigned represents that at the time of the execution and delivery
of this Agreement nothing exists to impair the effectiveness of the obligations
of Undersigned to Lender hereunder, or the immediate taking effect of this
Agreement between Undersigned and Lender with respect to becoming surety for the
Liabilities. Undersigned agrees to deliver annual financial statements and tax
returns to Lender during each year until payment in full of all Liabilities.
Undersigned hereby authorizes and empowers the Prothonotary, Clerk of
Court or similar official or any attorney of any Court of record in the United
States or elsewhere following an event of default which is continuing beyond any
applicable grace period to appear for Undersigned in any or all actions which
may be brought to enforce Undersigned's obligations hereunder (including costs,
expenses and/or reasonable attorneys' fees agreed to be paid by Undersigned)
and/or to sign for Undersigned an agreement for entering an amicable action(s)
for the recovery of all sums due by Undersigned (including costs, expenses and
reasonable attorneys' fees), and in said suits or in said amicable action or
actions to confess judgment against Undersigned for all or any part of the
obligations hereunder and all such costs, expenses and reasonable attorneys'
fees. Such authority shall not be exhausted by one exercise but judgment may be
confessed as aforesaid from time to time as any sums and/or costs, expenses or
reasonable attorneys' fees shall be due. Undersigned waives all relief from any
and all appraisement or exemption laws now in force or hereafter enacted.
2
Undersigned agrees and consents to the exclusive jurisdiction of the
Court of Common Pleas of Pennsylvania in any and all actions and proceedings
arising hereunder or pursuant hereto or under any other agreement or
undertaking, and irrevocably agrees to service of process by certified mail,
return receipt requested, to Undersigned's address set forth herein, or such
address as may appear in Lender's records.
If claim is ever made upon Lender for repayment or recovery of any
amount or amounts received by Lender in payment or on account of any of the
Liabilities and Lender repays all or part of said amount by reason of (a) any
judgment, decree or order of any court or administrative body having
jurisdiction over Lender or any of its property, or (b) any settlement or
compromise of any such claim effected by Lender with any such claimant
(including Debtor), then and in such event Undersigned agrees that any such
judgment, decree, order, settlement or compromise shall be binding upon
Undersigned, notwithstanding any revocation hereof or the cancellation of any
note or other instrument evidencing any Liability of Debtor and Undersigned
shall be and remain liable to Lender hereunder for the amount so repaid or
recovered to the same extent as if such amount had never originally been
received by Lender.
The waiver of any right by Lender or failure to exercise promptly any
right shall not be construed as the waiver of any other right to exercise the
same at any time thereafter.
Any acknowledgment, new promise, payment of principal or interest or
otherwise by Debtor or others with respect to the Liabilities, shall be deemed
to be made as agent of Undersigned for the purposes hereof, and shall, if the
statute of limitations in favor of Undersigned against Lender shall have
commenced to run, toll the running of such statute of limitations, and if such
statute of limitations shall have expired, prevent the operation of such
statute.
The obligations of Undersigned shall bind the successors and assigns of
Undersigned, as the case may be, and shall inure to the benefit of Lender, its
successors and assigns.
All rights and remedies of Lender are cumulative and not alternative.
This Agreement is made, executed and delivered in the Commonwealth of
Pennsylvania and shall be governed, interpreted and construed in accordance with
the laws of the Commonwealth of Pennsylvania.
3
The execution and delivery of this Agreement is in addition to, and
not in derogation of, any other surety agreement(s) heretofore executed and
delivered to Lender unless such prior agreement(s) have been terminated in
writing pursuant to the terms thereof. No agreement, unless in writing and
signed by Lender, and no course of dealing between Undersigned and Lender, shall
be effective to change or modify or to discharge in whole or in part this
Agreement. No waiver of any rights or powers of Lender or consent by it shall be
valid unless in writing, signed by an authorized officer.
Executed this 30th day of September, 2002.
MORO CORPORATION
By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx, Chairman
