SURETY AGREEMENT
TO: SOVEREIGN BANK, 0000 Xxxxxxxxx Xxxxxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000
("Lender")
Attention: Xxxxxx X. XxXxxxx, Vice President:
In consideration of Lender making or continuing to make loans or otherwise
becoming or continuing as a creditor of MORO ACQUISITION CORP., a Delaware
corporation, and XXXXX X. and XXXXXXXXXX X. XXXXXX (collectively "Debtors"), 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 Debtors, 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 Debtors), 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 either 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 either Debtor; and (d) all notices of the financial condition or
of any adverse or other change in the financial condition of either 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 either 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 either Debtor and shall not be required to take
any action or proceeding of any kind against either 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 either
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 either 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 either 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 either 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 either Debtor shall be in default of the terms of any
obligation to or agreement with Lender, the entire indebtedness of Debtors 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 Debtors.
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 actions)
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.
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,
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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 either 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 either 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 either 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.
The execution and delivery of this Agreement is in addition to, and not in
derogation of, any other surety agreements) heretofore executed and delivered to
Lender unless such prior agreements) 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 31st day of March, 2000.
MORO CORPORATION
By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx, President
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