To: Fleet Capital Corporation Date: October 22, 1998
000 Xxxxxxxxxxx Xxxx.
Xxxxxxxxxxx, XX 00000
To induce you to establish and/or continue financing arrangements with and
consider making or continuing certain loans and extending or continuing to
extend credit from time to time to MSI/Eagle Supply, Inc., a Delaware
corporation, ("Borrower") the Undersigned, intending to be legally bound, hereby
guarantees and becomes surety for the unconditional and prompt payment and
performance to you of all of the Obligations of Borrower to you. The
Undersigned shall also pay or reimburse you on demand for all costs and
expenses, including without limitation attorneys' fees, incurred by you at any
time to enforce, protect, preserve, or defend your rights hereunder and with
respect to any property securing this Surety Agreement. All payments hereunder
shall be made in lawful money of the United States, in immediately available
funds. Unless otherwise defined herein, all capitalized terms shall have the
respective meanings given to such terms in that certain Loan and Security
Agreement dated the date hereof between Borrower and you (as it may hereafter be
amended, supplemented or replaced from time to time, the "Loan Agreement").
The Undersigned further undertakes and agrees as follows:
(1) The Undersigned represents and warrants that:
(a) The Undersigned's execution and performance of this Surety
Agreement shall not (i) violate or result in a default or breach (immediately or
with the passage of time) under any contract, agreement or instrument to which
the Undersigned is a party, or by which the Undersigned is bound, (ii) violate
or result in a default or breach under any order, decree, award, injunction,
judgment, law, regulation or rule, (iii) cause or result in the imposition or
creation of any lien upon any property of the Undersigned, or (iv) violate or
result in a breach of the articles of incorporation or by-laws of the
(b) The Undersigned has the full power and capacity to enter into and
perform under this Surety Agreement, which has been authorized by all necessary
corporate action on behalf of the Undersigned.
(c) No consent, license or approval of, or filing or registration
with, any governmental authority is necessary for the execution and performance
hereof by the Undersigned.
(d) This Surety Agreement constitutes the valid and binding
obligation of the Undersigned enforceable in accordance with its terms.
(e) This Surety Agreement promotes and furthers the business and
interests of the Undersigned and the creation of the obligations hereunder will
result in direct financial benefit to the Undersigned.
(2) The Undersigned hereby waives notice of (a) acceptance of this Surety
Agreement, (b) the existence or incurring from time to time of any Obligations
guaranteed hereunder, or (c) the existence of any Event of Default, the making
of demand, or the taking of any action by you, under the Loan Agreement.
(3) The Undersigned hereby consents and agrees that you may at any time or
from time to time in your discretion (a) extend or change the time of payment,
and/or the manner, place or terms of payment of any or all Obligations, (b)
amend, supplement or replace the Loan Agreement or any related agreements, (c)
renew, extend, modify, increase or decrease loans and extensions of credit to
Borrower, (d) modify the terms and conditions under which loans and extensions
of credit may be made to Borrower, (e) settle, compromise or grant releases for
liabilities of Borrower, and/or any other person or persons liable with
Undersigned for, any Obligations, (f) exchange, release, surrender, sell,
subordinate, or compromise any collateral of any party now or hereafter securing
any of the Obligations, and (g) apply any and all payments received by you at
any time against the Obligations in any order as you may determine; all of the
foregoing in such manner and upon such terms as you may see fit, and without
notice to or further consent from the Undersigned, who hereby agrees to be and
shall remain bound upon this Surety Agreement notwithstanding any such action on
(4) The liability of the Undersigned hereunder is absolute and
unconditional and shall not be reduced, impaired or affected in any way by
reason of (a) any failure to obtain, retain or preserve, or the lack of prior
enforcement of, any rights against any person or persons (including Borrower and
the Undersigned) or in any property, (b) the invalidity or unenforceability of
any Obligations or rights in any Collateral, (c) any delay in making demand upon
Borrower or any delay in enforcing, or any failure to enforce, any rights
against Borrower or in any Collateral even if such rights are thereby lost, (d)
any failure, neglect or omission on your part to obtain or perfect any lien
upon, protect, exercise rights against, or realize on, any property of Borrower,
the Undersigned or any other party securing the Obligations, (e) the existence
or nonexistence of any defenses which may be available to the Borrower with
respect to the Obligations, or (f) the commencement of any bankruptcy,
reorganization, liquidation, dissolution or receivership proceeding or case
filed by or against Borrower.
(5) If any or all payments made from time to time to you with respect to
any obligation hereby guaranteed are recovered from, or repaid by, you in whole
or in part in any bankruptcy, reorganization, insolvency or similar proceeding
instituted by or against Borrower, this Surety Agreement shall continue to be
fully applicable to such obligation to the same extent as if the recovered or
repaid payment(s) had never been originally made on such obligation.
(6) All rights and remedies hereunder and under the Loan Agreement, and
related agreements, are cumulative and not alternative, and you may proceed in
any order from time to time against Borrower, the Undersigned and/or any other
obligor of Borrower's Obligations and their respective assets.
(7) Any and all rights of any nature of the Undersigned to subrogation,
reimbursement or indemnity and any right of the Undersigned to recourse to any
assets or property of Borrower for any reason shall be unconditionally
subordinated to all of your rights under the Loan Agreement and the Undersigned
shall not at any time exercise any of such rights unless and until all of the
Obligations have been unconditionally paid in full.
(8) Your books and records of any and all of Borrower's Obligations,
absent manifest error, shall be prima facie evidence against the Undersigned of
the indebtedness due you or to become due to you hereunder.
(9) This Surety Agreement shall constitute a continuing surety obligation
and you may continue to act in reliance hereon until all of the Obligations have
been paid and satisfied in full. You shall not have any obligation to proceed
against, or exhaust any or all of your rights against, Borrower prior to
proceeding against the Undersigned hereunder.
(10) The Undersigned agrees that you shall have a right of setoff against
any and all property of the Undersigned now or at any time in your possession,
including without limitation deposit accounts, and the proceeds thereof, as
security for the obligations of the Undersigned hereunder.
(11) If an Event of Default occurs and is continuing under the Loan
Agreement, then all of the Undersigned's liabilities to you hereunder shall, at
your option, become immediately due and payable and you may at any time and from
time to time take any and/or all actions and enforce all rights and remedies
available hereunder or under applicable law to collect the Undersigned's
(12) Failure or delay in exercising any right or remedy against the
Undersigned hereunder shall not be deemed a waiver thereof or preclude the
exercise of any other right or remedy hereunder. No waiver of any breach of or
provision of this Surety Agreement shall be construed as a waiver of any
subsequent breach or of any other provision. The invalidity or unenforceability
of any provision hereof shall not affect the remaining provisions which shall
remain in full force and effect.
(13) This Surety Agreement shall (a) be legally binding upon the
Undersigned, and the Undersigned's successors and assigns, provided that the
Undersigned's obligations hereunder may not be delegated or assigned without
your prior written consent and (b) benefit any and all of your successors and
(14) This Surety Agreement embodies the whole agreement and understanding
of the parties hereto relative to the subject matter hereof. No modification of
any provision hereof shall be enforceable unless approved by you in writing.
(15) This Surety Agreement shall in all respects be interpreted, construed
and governed by the substantive laws of the State of New York. The Undersigned
irrevocably (i) submits to the jurisdiction of the Supreme Court of the State of
New York and the United States District Court for the Southern District of New
York for the purposes of any litigation or proceeding hereunder or concerning
the terms hereof and (ii) waives the right to a jury trial with respect to any
litigation or proceeding hereunder or concerning the terms hereof.
(16) (a) In any action or proceeding brought by you to enforce the terms
hereof, the Undersigned waives personal service of the summons, complaint, and
any motion or other process, and agrees that notice thereof may be served by
registered or certified mail, return receipt requested or by nationally
recognized overnight courier at the address of the Undersigned set forth on the
signature page hereof. Such service shall be deemed made on the date of
delivery at such address.
(b) Any and all notices which may be given to the Undersigned by you
hereunder shall be sent to the Undersigned at the address of the Undersigned set
forth on the signature page hereof and shall be deemed given to and received (on
the date delivered) by the Undersigned if personally delivered or if sent by
facsimile transmission or if sent in the manner provided for service of process
in paragraph 16(a) above.
DATED the date and year first above written.
TDA INDUSTRIES, INC.
By: /s/ Xxxxxxx X. Xxxxxx CEO
Address: 000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000