Exhibit 10.4
GUARANTY OF LEASE
Guaranty of Lease, dated as of June 28, 2001, by
Fluor Corporation, a Delaware corporation, herein, together with
any entity succeeding thereto by consolidation, merger or
acquisition of its assets substantially as an entirety, called
"Guarantor".
Lakepointe Assets LLC, a Delaware limited
liability company (herein together with its successors and assigns
as owner of the property hereinafter described, called "Landlord"),
is about to acquire the land described on Schedule A hereto and the
improvements located on said land (collectively, the "Property")
and to lease the Property to Fluor Enterprises, Inc., a California
corporation d/b/a Fluor Signature Services ("Tenant"), pursuant to
a lease between Landlord and Tenant dated as of June 28, 2001 (the
"Lease"). Landlord is unwilling to acquire the Property or enter
into the Lease unless the Guarantor enters into this agreement.
Guarantor directly or indirectly owns all the stock of Tenant. The
acquisition by Landlord of the Property and the lease of the
Property to Tenant is of direct benefit to the Guarantor. This
Guaranty reasonably may be expected to benefit, directly or
indirectly, Guarantor. Capitalized terms not otherwise
defined herein shall have the meanings given them in the
Lease.
NOW, THEREFORE, for good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the Guarantor, intending to be legally bound,
covenants and agrees with Landlord as follows:
1. The
Guarantor unconditionally and irrevocably guarantees to Landlord
that (a) all Basic Rent, Additional Rent and all other sums stated
in the Lease to be payable by the Tenant, whether due by
acceleration or otherwise, including reasonable costs and expenses
of collection (collectively, the "Monetary Obligations") will be
promptly paid in full when due, in accordance with the provisions
thereof, and (b) Tenant will perform and observe each and every
covenant, agreement, term and condition of Tenant in the Lease (the
"Performance Obligations"). If for any reason any Monetary
Obligation shall not be paid promptly when due, Guarantor shall,
immediately upon demand, pay the same to Landlord with interest due
thereon as stated in the Lease. In addition to the foregoing, the
Guarantor hereby becomes surety to Landlord for the due and
punctual payment and performance of the Monetary Obligations and
the Performance Obligations and the Guarantor hereby waives all
defenses of any nature that may be available to Guarantor as a
surety and guarantor or otherwise other than the defenses of
payment of the Monetary Obligations and performance of the
Performance Obligations.
2. Upon
the occurrence of an Event of Default under the Lease, Landlord may
enforce this Guaranty without first having recourse against Tenant
or exhausting its rights or remedies under the Lease; provided,
that nothing herein shall prohibit Landlord from exercising its
rights against both Guarantor and Tenant simultaneously.
Specifically, but without limitation, Guarantor hereby waives
joinder of Tenant or any other obligor in any suit or action to
enforce this Guaranty, and without in any way limiting the
foregoing, Guarantor hereby waives any right (including, without
limitation, each right created by the provisions of Chapter 34 of
the Texas Business & Commerce Code, Chapter 17 of the Texas
Civil Practice and Remedies Code, Rule 31 of the Texas Rules of
Civil Procedure or other applicable law) to require Landlord or any
other party entitled to enforce the obligations of Guarantor under
this
Guaranty to file suit against Tenant or any
other obligor or take any other action against Tenant or any other
obligor as a prerequisite to Landlord's or such other party's
taking any action or bringing any suit against Guarantor under this
Guaranty. This Guaranty and the obligations of the
Guarantor hereunder are present, primary, direct, continuing,
unconditional, irrevocable and absolute and independent of any
obligations of Tenant. This Guaranty constitutes the agreement to
pay money and to act in the first instance and is not to be
construed as a contract of indemnity or as a guaranty of
collectability.
3. The
obligations, covenants, agreements and duties of the Guarantor
under this Guaranty shall in no way be discharged, affected or
impaired by any of the following and Landlord may at any time and
from time to time, with or without consideration, without prejudice
to any claim against Guarantor hereunder, without in any way
changing, releasing or discharging Guarantor from its liabilities
and obligations hereunder and without notice to or the consent of
Guarantor waive, release or consent to any of the
following:
(a) the
waiver by Landlord of the performance or observance by Tenant of
any of the agreements, covenants, terms or conditions contained in
the Lease;
(b) the
extension, in whole or in part, of the time for payment by Tenant
of any sums owing or payable under the Lease, or of any other sums
or obligations of Tenant under or arising out of or on account of
the Lease, or the renewal or extension of the Lease;
(c) any
sublease of any or all of the Property by Tenant to any other
person;
(d) any
assumption by any person of any or all of Tenant's obligations
under, or Tenant's assignment of any or all of its interest in the
Lease;
(e) the
waiver or release or modification or amendment (whether material or
otherwise) of any provision of the Lease, and Guarantor hereby
consents to any such waivers, releases, modifications and
amendments and to any future terms or agreements heretofore or
hereafter made by Landlord and Tenant in accordance with the terms
of the Lease, provided that Guarantor shall not be responsible for
any increase in the obligations of a tenant under the Lease
resulting solely from an amendment to the Lease made by a tenant
which was not, at the time of such amendment, an affiliate of
Guarantor;
(f) any
failure, omission or delay on the part of Landlord to enforce,
assert or exercise any right, power or remedy conferred on or
available to Landlord in or by the Lease or this Guaranty, or any
action on the part of Landlord granting indulgence or extension in
any form whatsoever;
(g) the
voluntary or involuntary liquidation, dissolution, sale of all or
substantially all of the assets, marshaling of assets and
liabilities, receivership, conservatorship, insolvency, bankruptcy,
assignment for the benefit of creditors, reorganization or other
similar proceeding affecting Landlord, Tenant or Guarantor or any
of their assets or any impairment, modification, release or
limitation of liability of Landlord, Tenant or Guarantor or any of
their 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 U.S. Bankruptcy Code or
other similar statute or from the decision of any court;
(h)
the power or authority or lack thereof of Tenant to execute,
acknowledge or deliver the Lease;
(i) the
legality, validity or invalidity of the Lease;
(j) any
defenses whatsoever that Tenant may or might have to the payment of
the Monetary Obligations except for the payment thereof actually
received by Landlord or at Landlord's direction, by Lessor's
Mortgagee, Guarantor acknowledging that the Tenant has agreed to
pay the Monetary Obligations under the Lease without
setoff;
(k) the
existence or non-existence of Tenant as a legal entity or the
existence or non-existence of any corporate or other business
relationship between Tenant and Guarantor;
(l) any
sale or assignment by Landlord of this Guaranty and/or the Lease
(including any assignment by Landlord to Lessor's
Mortgagee;
(m) any
default by Guarantor under this Guaranty or any right of setoff or
counterclaim or defense (other than payment in full of the Monetary
Obligations in accordance with the terms of the Lease) that
Guarantor may or might have to its respective undertakings,
liabilities and obligations hereunder, each and every such defense
being hereby waived by Guarantor; or
(n)
any other cause, whether similar or dissimilar to any of the
foregoing, that might constitute a legal or equitable discharge of
Guarantor (whether or not Guarantor shall have knowledge or notice
thereof) other than payment in full of the Monetary
Obligations.
Without in any way limiting the generality of
the foregoing, Guarantor specifically agrees that if Tenant's
obligations under the Lease are modified or amended with the
express written consent of Landlord, this Guaranty shall extend to
such obligations as so amended or modified but shall not extend to
any increase in the obligations of Tenant under the Lease if such
modification or amendment was made by a tenant which was not, at
the time of such modification or amendment, an Affiliate of
Guarantor and if Guarantor did not consent to such modification or
amendment.
4. Guarantor
hereby waives notice (other than any notice required by the terms
of the Lease), demand, presentment, protest and notice of
protest.
5. Guarantor
agrees that, in the event of the rejection or disaffirmance of the
Lease by Tenant or Tenant's trustee in bankruptcy pursuant to
bankruptcy law or any other law affecting creditors rights, the
Guarantor shall, if Landlord so requests, assume all obligations
and liabilities of Tenant under the Lease, to the same extent as if
the Guarantor was a party to such document and there had been no
such rejection or disaffirmance; and the Guarantor shall confirm
such assumption in writing at the request of Landlord upon or after
such rejection or disaffirmance. The Guarantor, upon
such assumption, shall have all rights of Tenant under the Lease
(to the extent permitted by law). Guarantor further agrees that, to
the
extent that Tenant or Guarantor makes a payment
or payments to Landlord, which payment or payments or any part
thereof are subsequently invalidated, declared to be fraudulent or
preferential, set aside and/or required to be repaid to Tenant or
Guarantor or their respective estates, trustees, receivers or any
other party under any bankruptcy law or any other law affecting
creditors' rights, then to the extent of such payment or repayment,
this Guaranty and the advances or part thereof which have been
paid, reduced or satisfied by such amount shall be reinstated and
shall continue in full force and effect as of the date such initial
payment, reduction or satisfaction occurred.
6. The
following events following the expiration of the applicable cure
periods, in this Paragraph are sometimes referred to as an "Event
of Default":
a. If
default shall be made in the payment of any sum required
to be paid by Guarantor under this
Guaranty;
b. If
default shall be made in the observance or performance of any of
the other covenan
