FIRST AMENDMENT TO CREDIT AND SECURITY AGREEMENT
EXHIBIT
10.1
FIRST
AMENDMENT TO CREDIT AND SECURITY AGREEMENT
This
FIRST AMENDMENT TO CREDIT AND SECURITY AGREEMENT (this “Amendment”),
is
made as of February 15, 2006, by and among XXXXXXX’X METAL, INC., a Missouri
corporation, LMI FINISHING, INC., an Oklahoma corporation, TEMPCO ENGINEERING,
INC., a Missouri corporation, VERSAFORM CORP., a California corporation, PRECISE
MACHING PARTNERS, LLP, a Texas limited liability partnership,
and
LMI-TCA, Inc., a Delaware Corporation (collectively,
the
“Borrower”),
and
XXXXX FARGO BUSINESS CREDIT, INC., a Minnesota corporation (the “Lender”).
Recitals
The
Borrower and the Lender have entered into a Credit and Security Agreement dated
as of November 29, 2004 (as amended from time to time, the “Credit
Agreement”).
Capitalized terms used in these recitals have the meanings given to them in
the
Credit Agreement unless otherwise specified.
The
Borrower has requested that certain amendments be made to the Credit Agreement,
the Loan Documents and the Security Documents and the Lender is willing to
so
amend the Credit Agreement, the Loan Documents and the Security Documents
pursuant to the terms and conditions set forth herein.
NOW,
THEREFORE, in consideration of the premises and of the mutual covenants and
agreements herein contained, it is agreed as follows:
1. Amendments
to Credit Agreement, the Loan Documents and the Security
Documents.
(a) The
Credit Agreement, the Loan Documents, and the Security Documents shall be
amended as necessary to provide that LMI-TCA, Inc. is a “Borrower” or a
“Debtor,” as applicable.
(b) With
respect to any grant of a security interest under the Credit Agreement or any
Security Document, LMI-TCA, Inc. hereby pledges, grants and assigns to the
Lender, a security interest in the collateral described in each such document,
to the extent LMI-TCA, Inc. may at such time or thereafter have an interest
in
such collateral.
2. Defined
Terms.
Capitalized terms used in this Amendment which are defined in the Credit
Agreement shall have the same meanings as defined therein, unless otherwise
defined herein. Section
1
of the Credit Agreement is amended by adding or amending, as the case may be,
the following definitions:
(a) “Advance”
means a Revolving Advance, an Overadvance, an Equipment Term Advance, or a
Real
Estate Term Advance.
(b) “Availability”
means the difference of (i) the Borrowing Base and (ii) the sum of (A) the
outstanding principal balance of the Revolving Note (B) the L/C Amount and
(C)
the outstanding principal balance of the Overadvance Note.
(c) “Borrowing
Base” means at any time the lesser of:
(a) the
Maximum Line; or
(b) subject
to change from time to time in the Lender’s sole discretion, the sum
of:
(i) 85%
of
Eligible Accounts, plus
(ii) during
the Foreign Accounts Eligibility Period, the lesser of (A) 85% of Eligible
Foreign Accounts or (B) $1,500,000; plus
(iii) the
lesser of (A) 34% of Eligible Inventory that consists of raw material, or
(B) $2,500,000; plus
(iv) the
lesser of (A) 50% of Eligible Inventory that consists of works in progress,
or
(B) $6,000,000;
plus
(v) the
lesser of (A) 31% of Eligible Inventory that consists of finished goods, or
(B) $6,000,000.
(d) “Credit
Facility” means the credit facility being made available to the Borrower by the
Lender under Article II, as evidenced by the Revolving Note, Overadvance Note,
the Equipment Term Loan Note and Real Estate Term Loan Note.
(e) “Funding
Date” means November 15, 2004.
(f) “Maturity
Date” means November 15, 2009.
(g) “Maximum
Line” means $23,250,000 unless said amount is reduced pursuant to Section 2.16,
in which event it means such lower amount.
(h) “Maximum
Overadvance Line” means $3,000,000 as of the execution date of this Amendment,
provided that such amount shall be reduced by $83,333.33 on the first day of
each month thereafter.
(i) “Overadvance
Note” means the Borrower’s promissory note, payable to the order of the Lender
in substantially the form of Exhibit I hereto and any note or notes issued
in
substitution therefor.
(j) “Overadvance
Line Availability” means the difference of (i) the Maximum Line and (ii) the sum
of (A) the outstanding principal balance of the Revolving Note and (B) the
outstanding principal balance of the Overadvance Note.
(k) “Overadvance
Amount” means the aggregate amount of outstanding Overadvances.
3. Margins.
Section
2.12(b) of the Credit Agreement is hereby deleted in its entirety and replaced
with the following in lieu thereof:
(b) Margins.
The
Margins through and including the first adjustment occurring as specified below
shall be (i) four percent (4%) for the Equipment Term Advance if it is a
Floating Rate Advance, (ii) four percent (4%) for the Real Estate Term Advance
if it is a Floating Rate Advance, (iii) zero percent (0%) for Revolving Advances
that are Floating Rate Advances, (iv) one-half
of one percent (0.50%) for
Overadvances, which Overadvances shall all be Floating Rate Advances, and (v)
for LIBOR Rate Advances, a percentage equal to the difference between the Base
Rate and the LIBOR Base Rate on the date of the LIBOR Rate Advance, which shall
be determined by Lender, plus the Margin that would have been applicable to
that
type of Advance if it had been a Floating Rate Advance. By way of example only,
if the Prime Rate was five percent (5%), the LIBOR Base Rate was three percent
(3%) and the Margin for an Equipment Term Advance that was a Floating Rate
Advance was (0.5), then the margin for an Equipment Term Advance that was a
LIBOR Rate Advance would be two and one-half percent (2.5%).
Effective
February 1, 2006 and upon Borrower’s payment to Lender of a $50,000 success fee,
the Margin for the Equipment Term Advance shall be reduced to one-half of one
percent (0.5%) or the equivalent LIBOR Rate, as determined by Lender in
accordance with this section. Also effective January 1, 2006, the Margin for
the
Real Estate Term Advance shall be reduced to one-half of one percent (0.5%)
or
the equivalent LIBOR Rate, as determined by Lender in accordance with this
section
If
Borrower establishes a Net Income of greater than $1,950,000 for the period
commencing January 1, 2006 and ending June 30, 2006 (which amount represents
50%
of Borrower’s projected Net Income for the period commencing January 1, 2006 and
ending June 30, 2006), then (i) the Margin for the Revolving Advances shall
be
reduced to a negative one-quarter of one percent (0.25%) or the equivalent
LIBOR
Rate, as determined by Lender in accordance with this section; (ii) the Margin
for the Real Estate Term Advance shall be reduced to one-quarter of one percent
(0.25%) or the equivalent LIBOR Rate, as determined by Lender in accordance
with
this section; and (iii) the Margin for the Equipment Term Advance interest
rates
will be reduced to one-quarter of one percent (0.25%) or the equivalent LIBOR
Rate, as determined by Lender in accordance with this section. Such reductions
in the Margins shall be effective on the first day of the first month after
Lender’s receipt of Borrower’s June 30, 2006 periodic SEC Filing (Form 10Q)
required under Section 6.1.
Except
as
otherwise specifically provided to the contrary, reductions and increases in
the
Margins and any payments to be made by Borrower to Lender in connection with
such reductions or increases in the Margins shall be made on the first day
of
the first month after Lender’s receipt of Borrower’s audited financial
statements and compliance certificate required under Section 6.1.
Notwithstanding the foregoing, (i) if the Borrower fails to deliver any
financial statements or compliance certificates when required under Section
6.1,
the Lender may, by notice to the Borrower, increase the Margins to the highest
rates set forth above until such time as the Lender has received all such
financial statements and compliance certificates, and (ii) no reduction in
the
Margins will be made if a Default Period exists at the time that such reduction
would otherwise be made.
4. Prepayment
Fees.
Section
2.13(f) of the Credit Agreement is hereby deleted in its entirety and replaced
with the following in lieu thereof:
(f) Prepayment
Fees.
If the
Credit Facility is prepaid for any reason, the Borrower shall pay to the Lender
a fee in an amount equal to a percentage of the amount prepaid as follows:
(i)
three percent (3%) if prepayment occurs on or before the first anniversary
of
the Funding Date; (ii) two percent (2%) if prepayment occurs after the first
anniversary of the Funding Date but on or before the second anniversary of
the
Funding Date; (iii) one percent (1%) if prepayment occurs after the second
anniversary of the Funding Date but on or before the third anniversary of the
Funding Date; and (iv) zero percent (0%) if prepayment occurs after the third
anniversary of the Funding Date.
5. Waiver
of Fees.
Section
2.13(g) of the Credit Agreement is hereby deleted in its entirety and replaced
with the following in lieu thereof:
(g) Waiver
of Termination and Prepayment Fees.
The
Borrower will not be required to pay the termination and prepayment fees
otherwise due under subsections (e) and (f) if such termination or prepayment
is
made because of refinancing by an affiliate of the Lender. In addition, the
Borrower will not be required to pay the termination and prepayment fees
otherwise due under subsections (e) and (f) upon payment in full of the Real
Estate Term Loan.
6. Mandatory
Prepayment.
Section
2.16 of the Credit Agreement is hereby deleted in its entirety and replaced
with
the following in lieu thereof:
Section
2.16 Voluntary
Prepayment; Reduction of the Maximum Line; Termination of the Credit Facility
by
the Borrower.
Except
as otherwise provided herein, the Borrower may prepay the Advances and
Overadvances in whole at any time or from time to time in part. The Borrower
may
terminate the Credit Facility or reduce the Maximum Line at any time if it
(i)
gives the Lender at least 30 days’ prior written notice and (ii) pays the Lender
termination, prepayment and Maximum Line reduction fees in accordance with
Sections 2.13(e) and (f). Any reduction in the Maximum Line must be in an amount
of not less than $1,000,000 or an integral multiple thereof. If the Borrower
reduces the Maximum Line to zero, all Obligations shall be immediately due
and
payable. Subject to termination of the Credit Facility and payment and
performance of all Obligations, the Lender shall, at the Borrower’s expense,
release or terminate the Security Interest and the Security Documents to which
the Borrower is entitled by law.
7. Mandatory
Prepayment.
Section
2.17 of the Credit Agreement is hereby deleted in its entirety and replaced
with
the following in lieu thereof:
Section
2.17 Mandatory
Prepayment.
(a) Without
notice or demand, if the sum of the outstanding principal balance of the
Revolving Advances plus the L/C Amount shall at any time exceed the Borrowing
Base, the Borrower shall (i) first, immediately prepay the Revolving Advances
to
the extent necessary to eliminate such excess; and (ii) if prepayment in full
of
the Revolving Advances is insufficient to eliminate such excess, pay to the
Lender in immediately available funds for deposit in the Special Account an
amount equal to the remaining excess.
(b) Without
notice or demand, if the sum of the outstanding principal balance of the
Overadvances exceed the Maximum Overadvance Line, the Borrower shall immediately
prepay the Overadvances to the extent necessary to eliminate such excess.
(c) Any
payment received by the Lender under this Section 2.17 or under Section 2.16
may
be applied to the Obligations, in such order and in such amounts as the Lender,
in its discretion, may from time to time determine.
8. Overadvance
Facility.
New
Sections 2.21 and 2.22 of the Credit Agreement are hereby inserted as
follows:
Section
2.21 Overadvance
Facility.
(a) The
Lender agrees, on the terms and subject to the conditions set forth herein,
to
make advances to the Borrower from the execution date of this Amendment to
March
1, 2009 (the “Overadvances”). The Lender shall have no obligation to make an
Overadvance to the extent the amount of the requested Overadvance exceeds the
lesser of:
(i)
the
Maximum Overadvance Line less the Overadvance Amount, or
(ii)
the
Overadvance Line Availability.
The
Borrower’s obligation to pay the Overadvances shall be evidenced by the
Overadvance Note and shall be secured by the Collateral. Within the limits
set
forth in this Section 2.1, the Borrower may borrow, prepay pursuant to Section
2.16 and reborrow.
Section
2.22 Payment
of Overadvance Note.
The
entire unpaid principal balance of the Overadvance Note and all unpaid interest
accrued thereon shall be due and payable in full on or before March 1,
2009.
9. Excess
Availability.
Notwithstanding anything to the contrary in Section 6.1(c) of the Credit
Agreement, so long as Borrower maintains an average excess Availability balance
greater than $3,500,000 (based on the average excess Availability balance of
the
previous 30-days), Borrower shall provide semi-monthly collateral reporting
to
the Lender without the supporting detail referenced in Section 6.1(c) of the
Credit Agreement.
10. Capital
Expenditures.
Section
6.2(f) of the Credit Agreement is hereby deleted in its entirety and replaced
with the following in lieu thereof:
(f)
Capital
Expenditures.
The
Borrower will not incur or contract to incur Capital Expenditures of more than
$3,000,000 in the aggregate during any fiscal year, with no more than $2,400,000
paid from Borrower’s working capital. As of fiscal year end 2006 and thereafter,
the Borrower will not incur or contract to incur Capital Expenditures of more
than $5,000,000 in the aggregate during any fiscal year, with no more than
$2,400,000 paid from Borrower’s working capital.
11. Investments
and Subsidiaries.
Lender
hereby waives the restrictions contained Section 6.6 of the Credit Agreement
that would prohibit Borrower from acquiring certain assets of Technical Change
Associates, Inc., a Utah corporation, by Guarantor LMI Aerospace, Inc.
Lender hereby consents to the acquisition of the Acquired Corporation and the
subsequent transfer of the assets of such Acquired Corporation to LMI-TCA,
Inc.,
a Delaware corporation and a newly formed wholly owned subsidiary of LMI
Aerospace, Inc. This waiver shall be effective only in this specific instance
and for the specific purpose for which it is given, and this waiver shall not
entitle the Borrower to any other or further waiver in any similar or other
circumstances.
12. Books
and Records; Inspection and Examination.
The
last sentence of Section 6.10 of the Credit Agreement is deleted in its entirety
and replaced with the following sentence:
The
Borrower will permit the Lender, or its employees, accountants, attorneys or
agents, to examine and inspect any Collateral or any other property of the
Borrower at any time during ordinary business hours up to two (2) times per
year, provided that such limitation on Lender’s right to examine and inspect
said Collateral shall not apply during any Default Period.
13. Secondary
Offering.
On
January 19, 2006, Borrower filed a registration statement for a public offering
with 2,900,000 shares of its common stock offered (the “Secondary Offering”).
Subject to the receipt of new equity to be raised pursuant to the Second
Offering, Borrower may use a portion of the new equity to reduce the outstanding
amount of the Revolving Advances; however, such payment shall not be deemed
a
payment to reduce the Maximum Line. As long as such repayment does not reduce
the Maximum Line, such repayment shall not be deemed a prepayment for purposes
of calculating any applicable prepayment or termination fees.
14. Repayment
of Subordinate Debt.
Lender
hereby gives its approval to the Borrowers to repay the $1,000,000 Subordinated
Note, subject to the completion of the Secondary Offering raising at least
$10,000,000 in new equity for Borrower. Subject to Borrower’s receipt of new
equity from the Secondary Offering of at least $10,000,000, payment of the
Subordinate Note shall not constitute an Event of Default under Section 7.1(p)
to the extent that such repayment does not exceed $1,000,000. This waiver shall
be effective only in this specific instance and for the specific purpose for
which it is given, and this waiver shall not entitle the Borrower to any other
or further waiver in any similar or other circumstances.
15. Participation.
If (i)
Lender determines for any reason and at any time that the total Credit Facility
between Borrower and Lender exceeds the Lender’s internal lending limits, which
determination shall be made at Lender’s sole discretion, (ii) Lender seeks to
participate the Credit Facility with one or more other lenders, and (iii) the
effect of such participation would be to reduce Lender’s position in the Credit
Facility below Lender’s then existing position in the Credit Facility before
such participation, then such reduction in Lender’s position in the Credit
Facility as a result of such participation shall not be deemed a reduction
for
the purposes of calculating the termination fees and prepayment fees pursuant
to
Section 2.13(e) and Section 2.13(f) of the Credit Agreement. Nothing in this
section shall be deemed a limitation of the Lender’s rights to seek
participation with another lender or lenders under the Credit
Agreement.
16. No
Other Changes.
Except
as explicitly amended by this Amendment, all of the terms and conditions of
the
Credit Agreement shall remain in full force and effect and shall apply to any
advance or letter of credit thereunder.
17. Non-waiver.
By
entering into this Amendment, Lender is not waiving any Default or Event of
Default that may exist at this time under the Credit Agreement, and Lender
reserves all rights and remedies available to it.
18. Conditions
Precedent.
This
Amendment shall be effective when the Lender shall have received an executed
original hereof, together with each of the following, each in substance and
form
acceptable to the Lender in its sole discretion:
(a) The
Acknowledgment and Agreement of Guarantor set forth at the end of this
Amendment, duly executed by the guarantor.
(b) A
Certificate of the Borrower’s Secretary or manager certifying as to the
resolutions of the Borrower’s managers and, if required, members, authorizing
the execution, delivery and performance of this Amendment.
(c) Such
other matters as the Lender may require.
19. Representations
and Warranties.
The
Borrower hereby represents and warrants to the Lender as follows:
(a) The
Borrower has all requisite power and authority to execute this Amendment and
to
perform all of its obligations hereunder, and this Amendment has been duly
executed and delivered by the Borrower and constitute the legal, valid and
binding obligation of the Borrower, enforceable in accordance with its
terms.
(b) The
execution, delivery and performance by the Borrower of this Amendment has been
duly authorized by all necessary corporate action and do not (i) require
any authorization, consent or approval by any governmental department,
commission, board, bureau, agency or instrumentality, domestic or foreign,
(ii) violate any provision of any law, rule or regulation or of any order,
writ, injunction or decree presently in effect, having applicability to the
Borrower, or the articles of incorporation or by-laws of the Borrower, or
(iii) result in a breach of or constitute a default under any indenture or
loan or credit agreement or any other agreement, lease or instrument to which
the Borrower is a party or by which it or its properties may be bound or
affected.
(c) All
of
the representations and warranties contained in Article VII of the Credit
Agreement are correct on and as of the date hereof as though made on and as
of
such date, except to the extent that such representations and warranties relate
solely to an earlier date.
20. References.
All
references in the Credit Agreement to “this Agreement” shall be deemed to refer
to the Credit Agreement as amended hereby; and any and all references
in
the Security Documents and the Loan Documents to
the
Credit Agreement shall be deemed to refer to the Credit Agreement as amended
hereby.
21. Release.
The
Borrower and the guarantor, by signing the Acknowledgment and Agreement of
Guarantor set forth below, each hereby absolutely and unconditionally releases
and forever discharges the Lender, and any and all participants, parent
corporations, subsidiary corporations, affiliated corporations, insurers,
indemnitors, successors and assigns thereof, together with all of the present
and former directors, officers, agents and employees of any of the foregoing,
from any and all claims, demands or causes of action of any kind, nature or
description, whether arising in law or equity or upon contract or tort or under
any state or federal law or otherwise, which the Borrower or guarantor has
had,
now has or has made claim to have against any such person for or by reason
of
any act, omission, matter, cause or thing whatsoever arising from the beginning
of time to and including the date of this Amendment, whether such claims,
demands and causes of action are matured or unmatured or known or
unknown.
22. Costs
and Expenses.
The
Borrower hereby reaffirms its agreement under the Credit Agreement to pay or
reimburse the Lender on demand for all costs and expenses incurred by the Lender
in connection with the Credit Agreement, the Loan Documents, the Security
Documents and all other documents contemplated thereby, including without
limitation all reasonable fees and disbursements of legal counsel. Without
limiting the generality of the foregoing, the Borrower specifically agrees
to
pay all fees and disbursements of counsel to the Lender for the services
performed by such counsel in connection with the preparation of this Amendment
and the documents and instruments incidental hereto. The Borrower hereby agrees
that the Lender may, at any time or from time to time in its sole discretion
and
without further authorization by the Borrower, make a loan to the Borrower
under
the Credit Agreement, or apply the proceeds of any loan, for the purpose of
paying any such fees, disbursements, costs and expenses.
23. Miscellaneous.
(a) This
Amendment and the Acknowledgment and Agreement of Guarantor may be executed
in
any number of counterparts, each of which when so executed and delivered shall
be deemed an original and all of which counterparts, taken together, shall
constitute one and the same instrument.
(b) Mo.Rev.Stat.
§ 432.047 Required Statement.
“Oral loan agreements or commitments to loan money, extend credit or to forbear
from enforcing repayment of debt including promises to extend or renew such
debt
are not enforceable regardless of the legal theory upon which it is based that
is in any way related to the credit agreement. To protect you (borrower(s))
and
us (creditor) from misunderstanding or disappointment, any agreements we reach
covering such matters are contained in this writing, which is the complete
and
exclusive statement of the agreement between us, except as we may later agree
in
writing to modify it.”
(c) Incorporation
by Reference.
All of
the terms of the other Loan Documents are incorporated in and made part of
this
Amendment by reference; provided,
however,
that to
the extent of any inconsistency between this Amendment and such other Loan
Documents, this Amendment shall prevail and govern.
[Remainder
of Page Intentionally Blank - Signature Page Follows]
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by
their respective officers thereunto duly authorized as of the date first above
written.
|
XXXXXXX’X
METAL, INC.
By:
/s/ Xxxxxxxx X. Xxxxxxxxx
Xxxxxxxx
X. Xxxxxxxxx
Its
Secretary
|
LMI
FINISHING, INC.
By:
/s/ Xxxxxxxx X. Xxxxxxxxx
Xxxxxxxx
X. Xxxxxxxxx
Its
Secretary
|
|
TEMPCO
ENGINEERING, INC.
By:
/s/ Xxxxxxxx X. Xxxxxxxxx
Xxxxxxxx
X. Xxxxxxxxx
Its
Secretary
|
VERSAFORM
CORP.
By:
/s/ Xxxxxxxx X. Xxxxxxxxx
Xxxxxxxx
X. Xxxxxxxxx
Its
Secretary |
|
PRECISE
MACHINE PARTNERS, LLP
By:
LMI Aerospace, Inc., Partner
By:
/s/ Xxxxxxxx X. Xxxxxxxxx
Xxxxxxxx
X. Xxxxxxxxx
Its
Secretary |
LMI-TCA,
INC.
By:
/s/ Xxxxxxxx X. Xxxxxxxxx
Xxxxxxxx
X. Xxxxxxxxx
Its
Secretary
|
|
XXXXX
FARGO BUSINESS CREDIT, INC.
By:
/s/ Xxxx
X. Xxxxx
Xxxx
X. Xxxxx
Its
Vice President
|
ACKNOWLEDGMENT
AND AGREEMENT OF GUARANTOR
The
undersigned, a guarantor of the indebtedness of XXXXXXX’X
METAL, INC., a Missouri corporation, LMI FINISHING, INC., an Oklahoma
corporation, TEMPCO ENGINEERING, INC., a Missouri corporation, VERSAFORM CORP.,
a California corporation, PRECISE MACHING PARTNERS, LLP, a Texas limited
liability partnership,
and
LMI-TCA,
INC. a Delaware Corporation (collectively,
the
“Borrower”)
to Xxxxx
Fargo Business Credit, Inc. (the “Lender”) pursuant to a separate Guaranty dated
as of November 29, 2004 (the “Guaranty”), hereby (i) acknowledges receipt of the
foregoing Amendment; (ii) consents to the terms and execution thereof;
(iii) reaffirms its obligations to the Lender pursuant to the terms of its
Guaranty; and (iv) acknowledges that the Lender may amend, restate, extend,
renew or otherwise modify the Credit Agreement and any indebtedness or agreement
of the Borrower, or enter into any agreement or extend additional or other
credit accommodations, without notifying or obtaining the consent of the
undersigned and without impairing the liability of the undersigned under its
Guaranty for all of the Borrowers’ present and future indebtedness to the
Lender.
|
LMI
AEROSPACE, INC., a Missouri
Corporation
|
||
|
By:
/s/ Xxxxxxxx X. Xxxxxxxxx
|
||
|
Name:
Xxxxxxxx X. Xxxxxxxxx
|
||
|
Its
Secretary
|
||
ACKNOWLEDGMENT
AND AGREEMENT OF GUARANTOR
The
undersigned, a guarantor of the indebtedness of XXXXXXX’X
METAL, INC., a Missouri corporation, LMI FINISHING, INC., an Oklahoma
corporation, TEMPCO ENGINEERING, INC., a Missouri corporation, VERSAFORM CORP.,
a California corporation, PRECISE MACHING PARTNERS, LLP, a Texas limited
liability partnership,
and
LMI-TCA, INC. a Delaware Corporation (collectively,
the
“Borrower”)
to Xxxxx
Fargo Business Credit, Inc. (the “Lender”) pursuant to a separate Guaranty dated
as of November 29, 2004 (the “Guaranty”), hereby (i) acknowledges receipt of the
foregoing Amendment; (ii) consents to the terms and execution thereof;
(iii) reaffirms its obligations to the Lender pursuant to the terms of its
Guaranty; and (iv) acknowledges that the Lender may amend, restate, extend,
renew or otherwise modify the Credit Agreement and any indebtedness or agreement
of the Borrower, or enter into any agreement or extend additional or other
credit accommodations, without notifying or obtaining the consent of the
undersigned and without impairing the liability of the undersigned under its
Guaranty for all of the Borrowers’ present and future indebtedness to the
Lender.
|
PRECISE
MACHINE COMPANY, a Missouri Corporation
|
||
|
By:
/s/ Xxxxxxxx X. Xxxxxxxxx
|
||
|
Name:
Xxxxxxxx X. Xxxxxxxxx
|
||
|
Its
Secretary
|
||
Exhibit
I
to Credit and Security Agreement
OVERADVANCE
NOTE
|
$3,000,000.00
|
Minneapolis,
Minnesota
February
15, 2006
|
For
value
received, the undersigned, XXXXXXX’X METAL, INC., a Missouri corporation
(“Xxxxxxx’x Metal”), LMI FINISHING, INC., an Oklahoma corporation (“LMI
Finishing”), TEMPCO ENGINEERING, INC., a Missouri corporation (“Tempco”),
VERSAFORM CORP., a California corporation (“Versaform”), PRECISE MACHINE
PARTNERS, LLP, a Texas limited liability partnership (“Precise Machine”), and
LMI-TCA, INC. a Delaware Corporation (“TCA”), (Xxxxxxx’x Metal, LMI Finishing,
Tempco, Versaform, Precise Machine, and TCA are hereinafter collectively
referred to as the “Borrower”), hereby promise to pay on the Termination Date
under the Credit Agreement (defined below), to the order of XXXXX FARGO BUSINESS
CREDIT, INC., a Minnesota corporation (the “Lender”), at its main office in
Minneapolis, Minnesota, or at any other place designated at any time by the
holder hereof, in lawful money of the United States of America and in
immediately available funds, the principal sum of Eighteen Million and 00/100
Dollars ($3,000,000.00) or, if less, the aggregate unpaid principal amount
of
all Overadvances made by the Lender to the Borrower under the Credit Agreement
(defined below) together with interest on the principal amount hereunder
remaining unpaid from time to time, computed on the basis of the actual number
of days elapsed and a 360-day year, from the date hereof until this Note is
fully paid at the rate from time to time in effect under the Credit and Security
Agreement of even date herewith (the “Credit Agreement”) by and between the
Lender and the Borrower. The principal hereof and interest accruing thereon
shall be due and payable as provided in the Credit Agreement. This Note may
be
prepaid only in accordance with the Credit Agreement.
This
Note
is issued pursuant, and is subject, to the Credit Agreement, which provides,
among other things, for acceleration hereof. This Note is the Overadvance Note
referred to in the Credit Agreement. This Note is secured, among other things,
pursuant to the Credit Agreement and the Security Documents as therein defined,
and may now or hereafter be secured by one or more other security agreements,
mortgages, deeds of trust, assignments or other instruments or
agreements.
The
Borrower shall pay all costs of collection, including reasonable attorneys’ fees
and legal expenses if this Note is not paid when due, whether or not legal
proceedings are commenced.
Presentment
or other demand for payment, notice of dishonor and protest are expressly
waived.
|
XXXXXXX’X
METAL, INC.
|
|||
|
By:
/s/ Xxxxxxxx X. Xxxxxxxxx
|
|||
|
Name:
Xxxxxxxx X. Xxxxxxxxx
|
|||
|
Its
Secretary
|
|||
|
LMI
FINISHING, INC.
|
|||
|
By:
/s/ Xxxxxxxx X. Xxxxxxxxx
|
|||
|
Name:
Xxxxxxxx X. Xxxxxxxxx
|
|||
|
Its
Secretary
|
|||
|
TEMPCO
ENGINEERING, INC.
|
|||
|
By:
/s/ Xxxxxxxx X. Xxxxxxxxx
|
|||
|
Name:
Xxxxxxxx X. Xxxxxxxxx
|
|||
|
Its
Secretary
|
|||
|
VERSAFORM
CORP.
|
|||
|
By:
/s/ Xxxxxxxx X. Xxxxxxxxx
|
|||
|
Name:
Xxxxxxxx X. Xxxxxxxxx
|
|||
|
Its
Secretary
|
|||
|
PRECISE
MACHINE PARTNERS, LLP
|
|||
| By: LMI Aerospace, Inc., Partner | |||
|
By:
/s/ Xxxxxxxx X. Xxxxxxxxx
|
|||
|
Name:
Xxxxxxxx X. Xxxxxxxxx
|
|||
|
Its
Secretary
|
|||
|
LMI-TCA,
INC.
|
|||
|
By:
/s/ Xxxxxxxx X. Xxxxxxxxx
|
|||
|
Name:
Xxxxxxxx X. Xxxxxxxxx
|
|||
|
Its
Secretary
|
|||
