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EXHIBIT 10.4
GUARANTY AND SURETYSHIP
AGREEMENT
THIS GUARANTY AND SURETYSHIP AGREEMENT (this "
Guaranty "), dated as of the 29th day of December, 2006,
made by LMI AEROSPACE, INC., a Missouri corporation ("
Guarantor "), to CIT CRE LLC, a Delaware limited liability
company (" Landlord ").
W I T N E S S E T H
:
WHEREAS, Landlord, as lessor, (i) has entered
into a Lease Agreement of even date herewith (a " Lease "),
in which Landlord leased to Leonard’s Metals, Inc., a
Missouri corporation (a " Tenant "), certain premises
situated in Missouri and Kansas (the " LMI Metals Premises
"), and (ii) will enter into another Lease on or before January 31,
2006 (also a " Lease " and, together with the Lease
referenced in (i), the " Leases "), in which Landlord will
lease to LMI Finishing, Inc., an Oklahoma corporation (also a "
Tenant " and, together with the Tenant referenced in (i),
the " Tenants "), certain premises situated in Oklahoma
(collectively with the LMI Metals Premises, the " Leased
Premises ");
WHEREAS, all of the issued and outstanding stock
of Tenants is owned by Guarantor; and
WHEREAS, the execution and delivery by Guarantor
of this Guaranty is a condition of, and material inducement to,
Landlord to execute the Leases, and Guarantor expects to derive
financial benefit from the Leases;
NOW, THEREFORE, in consideration of the premises
and other good and valuable consideration, the receipt of which is
hereby acknowledged by Guarantor, and intending to be legally
bound, Guarantor hereby covenants and agrees as follows:
ARTICLE I
GUARANTEE
Section 1.01 Guaranteed Obligations . Guarantor hereby absolutely,
unconditionally and irrevocably guarantees to, and becomes surety
for, Landlord and its successors and assigns for the due, punctual,
and full payment, performance, and observance of, and covenants
with Landlord to duly, punctually, and fully pay and perform, the
following (collectively, the " Guaranteed Obligations "):
(a) the full
and timely payment of all Rent (as defined in each Lease) and all
other amounts due or to become due to Landlord from the applicable
Tenant under each Lease or any other agreement or instrument
executed in connection therewith, whether now existing or hereafter
arising, contracted, or incurred (collectively, the " Monetary
Obligations "); and
(b) all
covenants, agreements, terms, obligations and conditions,
undertakings, and duties contained in each Lease to be observed,
performed by, or imposed upon by the applicable Tenant under such
Lease, whether now existing or hereafter arising, contracted, or
incurred (collectively, the " Performance Obligations
"),
as and when such payment, performance, or
observance shall become due (whether by acceleration or otherwise)
in accordance with the terms of the each Lease, which terms are
incorporated herein by reference. The Guaranteed Obligations shall
not be affected by either Tenant’s voluntary or involuntary
bankruptcy, assignment for the benefit of creditors,
reorganization, or similar proceeding affecting either Tenant. If
for any reason any Monetary Obligation shall not be paid promptly
when due, Guarantor shall, immediately upon demand, pay the same to
Landlord when due under the terms of the applicable Lease. If for
any reason either Tenant shall fail to perform or observe any
Performance Obligation, Guarantor shall, immediately upon demand,
perform and observe the same or cause the same to be performed or
observed. If, by reason of any bankruptcy, insolvency or similar
laws affecting the rights of creditors, Landlord shall be
prohibited from exercising any of Landlord’s rights and
remedies, including, but not limited to, enforcement of the terms
of either Lease against the applicable Tenant, then as to Guarantor
such prohibition shall be of no force and effect, and Landlord
shall have the right to make demand upon, and receive payment
and/or performance from, Guarantor of all Guaranteed obligations
and Guarantor’s obligation in this respect shall be primary
and not secondary. Guarantor acknowledges and agrees that the
Monetary Obligations include, without limitation, Rent and other
sums accruing and/or becoming due under the either Lease following
the commencement by or against either Tenant of any action under
the United States Bankruptcy Code or other similar statute.
Guarantor shall pay all Monetary Obligations to Landlord at the
address and in the manner set forth in each Lease or at such other
address as Landlord shall notify Guarantor of in
writing.
Section 1.02 Guarantee Unconditional . The obligations of Guarantor
hereunder are continuing, absolute and unconditional, irrespective
of any circumstance whatsoever which might otherwise constitute a
legal or equitable discharge or defense of a guarantor or surety.
Without limiting the generality of the foregoing, the obligations
of Guarantor hereunder shall remain in full force and effect
without regard to, and shall not be released, discharged, abated,
impaired, or in any way affected by:
(a) any
amendment, modification, extension, renewal, or supplement to
either Lease or any termination of either Lease or any interest
therein;
(b) any
assumption by any party of either Tenant’s or any other
party’s obligations under, or either Tenant’s or any
other party’s assignment of any of its interest in, the
applicable Lease;
(c) any
exercise or nonexercise of or delay in exercising any right,
remedy, power or privilege under or in respect of this Guaranty or
the Leases or pursuant to applicable law (even if any such right,
remedy, power or privilege shall be lost thereby), including,
without limitation, any so-called self-help remedies, or any
waiver, consent, compromise, settlement, indulgence, or other
action or inaction in respect thereof;
(d) any change
in the financial condition of either Tenant, the voluntary or
involuntary liquidation, dissolution, sale of all or substantially
all of the assets, marshalling of assets and liabilities,
receivership, conservatorship, insolvency, bankruptcy, assignment
for the benefit of creditors, reorganization, arrangement,
composition or readjustment of, or other similar proceeding
affecting Landlord, either Tenant, or Guarantor or any of their
assets or any impairment, modification, release or limitation of
liability of Landlord, either Tenant, or Guarantor or their
respective estates in bankruptcy or of any remedy for the
enforcement of such liability resulting from the operation of any
present or future provision of the United States Bankruptcy Code or
other similar statute or from the decision of any court;
(e) any
extension of time for payment or performance of the Guaranteed
Obligations or any part thereof;
(f) the
genuineness, invalidity or unenforceability of all or any portion
or provision of either Lease;
(g) any
defense that may arise by reason of the failure of Landlord to file
or enforce a claim against the estate of either Tenant in any
bankruptcy or other proceeding;
(h) the
release or discharge of either Tenant or any other person or entity
from, or an accord and satisfaction which discharges, performance
or observance of any of the agreements, covenants, terms or
conditions contained in each Lease by operation of law or
otherwise;
(i) the
failure of Landlord to keep Guarantor advised of either
Tenant’s financial condition, regardless of the existence of
any duty to do so;
(j) any
assignment by Landlord of all of Landlord’s right, title and
interest in, to and under either Lease and/or this Guaranty as
collateral security for any loan;
(k) any
present or future law or order of any government ( de jure
or de facto ) or of any agency thereof purporting to reduce,
amend or otherwise affect the Guaranteed Obligations or any or all
of the obligations, covenants or agreements of either Tenant under
a Lease (except by payment in full of all Guaranteed Obligations)
or Guarantor under this Guaranty (except by payment in full of all
Guaranteed Obligations);
(l) the
default or failure of Guarantor fully to perform any of its
obligations set forth in this Guaranty;
(m) any
actual, purported or attempted sale, assignment or other transfer
by Landlord of either Lease or the Leased Premises or any part
thereof or of any of its rights, interests or obligations
thereunder;
(n) any merger
or consolidation of either Tenant into or with any other entity, or
any sale, lease, transfer or other disposition of any or all of
such Tenant’s assets or any sale, transfer or other
disposition of any or all of the shares of capital stock or other
securities of such Tenant or any affiliate of such Tenant to any
other person or entity;
(o) Failure by
either Tenant to obtain, protect, preserve or enforce any rights in
or under the applicable Lease or the Leased Premises or any
interest therein against any party or the invalidity or
unenforceability of any such rights; or
(p) any other
event, action, omission or circumstances which might in any manner
or to any extent impose any risk to Guarantor or which might
otherwise constitute a legal or equitable release or discharge of a
guarantor or surety.
all of which may be given or done without notice
to, or consent of, Guarantor.
No setoff, claim, reduction or diminution of any
obligation, or any defense of any kind or nature which either
Tenant or Guarantor now has or hereafter may have against Landlord
shall be available hereunder to Guarantor against
Landlord.
Section 1.03 Disaffirmance of Lease . Guarantor agrees that, in the
event of rejection or disaffirmance of a Lease by either Tenant or
such Tenant’s trustee in bankruptcy pursuant to the United
States Bankruptcy Code or any other law, Guarantor will, if
Landlord so requests, assume all obligations and liabilities under
the express terms of such Lease, to the same extent as if Guarantor
had been originally named instead of such Tenant as a party to such
Lease and there had been no rejection or disaffirmance; and
Guarantor will confirm such assumption in writing at the request of
Landlord on or after such rejection or disaffirmance. Guarantor,
upon such assumption, shall have all rights of such Tenant under
such Lease (to the extent permitted by law).
Section 1.04 No Notice or Duty to Exhaust Remedies . Guarantor hereby
waives notice of any default in the payment or non-performance of
any of the Guaranteed Obligations (except as expressly required
hereunder), diligence, presentment, demand, protest and all notices
of any kind. Guarantor agrees that liability under this Guaranty
shall be primary and hereby waives any requirement that Landlord
exhaust any right or remedy, or proceed first or at any time,
against either Tenant or any other guarantor of, or any security
for, any of the Guaranteed Obligations. Guarantor hereby waives
notice of any acceptance of this Guaranty and all matters and
rights which may be raised in avoidance of, or in defense against,
any action to enforce the obligations of Guarantor hereunder.
Guarantor hereby waives any and all suretyship defenses or defenses
in the nature thereof without in any manner limiting any other
provision of this Guaranty. This Guaranty constitutes an agreement
of suretyship as well as of guaranty, and Landlord may pursue its
rights and remedies under this Guaranty and under either Lease in
whatever order, or collectively, and shall be entitled to payment
and performance hereunder notwithstanding any action taken by
Landlord or inaction by Landlord to enforce any of its rights or
remedies against any other guarantor, person, entity or property
whatsoever. This Guaranty is a guaranty of payment and performance
and not merely of collection.
Landlord may pursue its rights and remedies under
this Guaranty notwithstanding any other guarantor of or security
for the Guaranteed Obligations or any part thereof. Guarantor
authorizes Landlord, at its sole option, without notice or demand
and without affecting the liability of Guarantor under this
Guaranty, to terminate either Lease, either in whole or in part, in
accordance with its terms.
Each default on any of the Guaranteed Obligations
shall give rise to a separate cause of action and separate suits
may be brought hereunder as each cause of action arises or, at the
option of Landlord any and all causes of action which arise prior
to or after any suit is commenced hereunder may be included in such
suit.
Section 1.05 Subrogation . Notwithstanding any payments made or
obligations performed by Guarantor by reason of this Guaranty
(including but not limited to application of funds on account of
such payments or obligations), Guarantor hereby irrevocably waives
and releases any and all rights it may have, at any time,
whether arising directly or
indirectly, by operation of law, contract or otherwise, to assert
any claim against either Tenant or any other person or entity or
against any direct or indirect security on account of payments made
or obligations performed under or pursuant to this Guaranty,
including without limitation any and all rights of subrogation,
reimbursement, exoneration, contribution or indemnity, and any and
all rights that would result in Guarantor being deemed a "creditor"
under the United States Bankruptcy Code of either Tenant or any
other person or entity. If any payment shall be paid to Guarantor
on account of any subrogation rights, each and every amount so paid
shall immediately be paid to Landlord to be credited and applied
upon any of the Guaranteed Obligations, whether or not then due and
payable. Every claim or demand which Guarantor may have against
either Tenant shall be fully subordinate to all Guaranteed
Obligations.
ARTICLE II
REPRESENTATIONS, WARRANTIES AND
COVENANTS
Section 2.01 Representations and Warranties . Guarantor hereby
represents and warrants to Landlord as follows:
(a) Guarantor is
duly incorporated, validly existing and in good standing under the
laws of the jurisdiction of its organization and is duly qualified
to do business and is in good standing in each other jurisdiction
in which the nature of its assets or the conduct of its business
requires such quali
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