GUARANTY AND SURETYSHIP AGREEMENT
EXHIBIT
10.4
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 Xxxxxxx’x 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 qualification;
(b) Guarantor
is authorized and empowered to enter into this Guaranty and to perform all
of
its obligations hereunder;
(c) This
Guaranty constitutes the legally binding obligation of Guarantor and is
enforceable against Guarantor in accordance with its terms;
(d) The
person signing this Guaranty on behalf of Guarantor has been duly authorized
to
sign and deliver this Guaranty on behalf of Guarantor;
(e) Guarantor
has not committed any act or permitted any action to be taken which would
adversely affect its ability to fulfill its material obligations under this
Guaranty;
(f) The
execution and delivery of this Guaranty, and the performance of Guarantor’s
obligations under this Guaranty, will not violate or breach, or conflict with,
the terms, covenants or provisions of any agreement, contract, note, mortgage,
indenture or other document of any kind whatsoever to which Guarantor is a
party
or by which it or any of its material assets is bound;
(g) There
are
no pending nor, to Guarantor’s knowledge, threatened matters of litigation,
administrative action or examination, government investigation, claim or demand
relating to the Guarantor;
(h) Guarantor’s
board of directors has approved the execution and delivery of this
Guaranty;
(i) Guarantor
is not in default of the performance or observance of any of the material
obligations, covenants or conditions contained in any contractual obligation
of
Guarantor beyond any applicable notice or cure period;
(j) No
officer of Guarantor has been convicted of a crime (excluding misdemeanors
and
traffic violations); and
(k) Guarantor
is not a “foreign person” as defined in Section 1445 of the Code and the
regulations promulgated thereunder.
Section
2.02 Financial
Statements; Books and Records.
(a) Guarantor
shall keep adequate records and books of account with respect to the finances
and business of Guarantor generally and with respect to the Leased Premises,
in
accordance with generally accepted accounting principles (“GAAP”)
consistently applied, and shall permit Landlord by its agents, accountants
and
attorneys, upon reasonable notice to Guarantor, to examine (and make copies
of)
the records and books of account and to discuss the finances and business with
the officers of Guarantor, at such reasonable times as may be requested by
Landlord. Upon the request of r Landlord (either telephonically or in writing),
Guarantor shall provide the requesting party with copies of any information
to
which such party would be entitled in the course of a personal visit.
(b) Guarantor
shall deliver to Landlord within ninety (90) days
of
the close of each fiscal year, annual audited financial statements of Guarantor
prepared by nationally recognized independent certified public accountants.
Guarantor shall also furnish to Landlord within sixty (60) days after the end
of
each of the three remaining fiscal quarters unaudited financial statements
and
all other quarterly reports of Guarantor, certified by Guarantor’s chief
financial officer[, and, if applicable, all filings, if any, of Form 10-K,
Form
10-Q and other required filings with the Securities and Exchange Commission
pursuant to the provisions of the Securities Exchange Act of 1934, as amended,
or any other Law]. All financial statements of Guarantor shall be prepared
in
accordance with GAAP consistently applied. All annual financial statements
shall
be accompanied (i) by an opinion of said accountants stating that
(A) there are no qualifications as to the scope of the audit and
(B) the audit was performed in accordance with GAAP and (ii) by the
affidavit of the president or a vice president of Guarantor, dated within five
(5) days of the delivery of such statement, stating that (C) the affiant
knows of no Event of Default, or event which, upon notice or the passage of
time
or both, would become an Event of Default which has occurred and is continuing
hereunder or, if any such event has occurred and is continuing, specifying
the
nature and period of existence thereof and what action Guarantor has taken
or
proposes to take with respect thereto and (D) except as otherwise specified
in such affidavit, that Guarantor has fulfilled all of its obligations under
this Guaranty which are required to be fulfilled on or prior to the date of
such
affidavit.
(c) Landlord
and its agents, accountants and attorneys, shall consider and treat on a
strictly confidential basis (i) any information contained in the books and
records of Guarantor, (ii) any copies of any books and records of Guarantor,
and
any financial statements of Guarantor pursuant to Section 2.02(b) which are
delivered to or received by them. Landlord and its agents, accountants and
attorneys, shall conspicuously xxxx all copies of such documents as
“Confidential”. Neither Landlord nor any of its agents, accountants and
attorneys, shall disclose any information contained in Guarantor’s books and
records nor distribute copies of any of such books and records nor Guarantor’s
financial statements to any other Persons without the prior written consent
of
the chief operating officer of Guarantor.
(d) The
restrictions contained in this Section 2.02(b) shall not prevent disclosure
by
Landlord of any information in any of the following circumstances:
(i) Upon
the
order of any court or administrative agency to the extent required by such
order
and not effectively stayed or by appeal or otherwise;
(ii) Upon
the
request, demand or requirement of any regulatory agency or authority having
jurisdiction over such party, including the Securities and Exchange Commission
(whether or not such request or demand has the force of law);
(iii) That
has
been publicly disclosed other than by breach of this Section 2.02(b) by Landlord
or by any other Person who has agreed with Landlord to abide by the provisions
of this Section 2.02(b);
(iv) To
counsel or accountants for Landlord or counsel or accountants for such other
person or entity who has agreed to abide by the provisions of this Section
2.02(b);
(v) While
an
Event of Default exists, in connection with the exercise of any right or remedy
under this Guaranty, either Lease or any other related document;
(vi) Independently
developed by Landlord to the extent that confidential information provided
by
Guarantor is not used to develop such information;
(vii) In
any
reporting to the beneficiaries;
(viii) In
connection with the securitization and/or sale of a loan or interest therein
by
a Lender (as defined in the Lease); or
(ix) As
otherwise required by Law.
Section
2.03 Notice
of Certain Events.
Promptly upon becoming aware thereof, Guarantor shall give Landlord notice
of
(i) the commencement, existence or threat of any proceeding by or before
any duly constituted governmental authority or agency against or affecting
Guarantor which, if adversely decided, would have a material adverse effect
on
the business, operations or condition, financial or otherwise, of Guarantor
or
on its ability to perform its obligations hereunder or (ii) any material
adverse change in the business, operations or condition, financial or otherwise,
of Guarantor.
Section
2.04 Estoppel
Certificates.
Guarantor shall, at any time upon not less than ten (10) days’ prior written
request by Landlord, deliver to the party requesting the same a statement in
writing, executed by the president or a vice president of Guarantor, certifying
(i) that, except as otherwise specified, this Guaranty is unmodified and in
full force in effect, (ii) that Guarantor is not in default hereunder and
that no event has occurred or condition exists which with the giving of notice
or the passage of time or both would constitute a default hereunder,
(iii) that Guarantor has no defense, setoff or counterclaim against
Landlord arising out of or in any way related to this Guaranty, (iv) that,
except as otherwise specified, there are not proceedings pending or, to the
knowledge of Guarantor, threatened against Guarantor before any court, arbiter
or administrative agency which, if adversely decided, could have a material
adverse effect on the business, operations or conditions, financial or
otherwise, of Guarantor or on its ability to perform its obligations hereunder
and (v) such other matters as Landlord may reasonably request.
Section
2.05 Financial
Covenants.
Guarantor hereby covenants and agrees to comply and to the extent applicable,
to
cause each Tenant to comply with all of the covenants and agreements described
in Exhibit
A
attached
hereto and made a part hereof.
ARTICLE
III
EVENTS
OF DEFAULT
Section
3.01 Events
of Default.
The
occurrence of any one or more of the following shall constitute an “Event of
Default” under this Guaranty:
(a) a
failure
by Guarantor to make any payment of any Monetary Obligation, regardless of
the
reason for such failure;
(b) a
failure
by Guarantor duly to perform and observe, or a violation or breach of, any
other
provision hereof not otherwise specifically mentioned in this Section 3.01;
(c) any
representation or warranty made by Guarantor herein or in any certificate,
demand or request made pursuant hereto proves to be untrue or incorrect, now
or
hereafter, in
any
material respect;
(d) a
default
beyond any applicable cure period by Guarantor in any payment of principal
or
interest on any obligations for borrowed money having an original principal
balance of $10,000,000 or more in the aggregate, or in the performance of any
other provision contained in any instrument under which any such obligation
is
created or secured (including the breach of any covenant thereunder), (i) if
such payment is a payment at maturity or a final payment, or (ii) if an effect
of such default is to cause, or permit any person to cause, such obligation
to
become due prior to its stated maturity;
(e) a
default
by Guarantor beyond any applicable cure period in the payment of rent under,
or
in the performance of any other material provision of, any leases (excluding
either Lease) with rental obligations over the terms thereof of $500,000 or
more
in the aggregate;
(f) a
final,
non-appealable judgment or judgments for the payment of money in excess of
$10,000,000 in the aggregate shall be rendered against Guarantor and the same
shall remain undischarged for a period of sixty (60) consecutive
days;
(g) Guarantor
shall (A) voluntarily be adjudicated a bankrupt or insolvent, (B) seek
or consent to the appointment of a receiver for itself or its assets,
(C) file a petition seeking relief under the bankruptcy or other similar
laws of the United States, any state or any jurisdiction, (D) make a
general assignment for the benefit of creditors, or (E) be unable to pay
its debts as they mature;
(h) a
court
shall enter an order, judgment or decree appointing, without the consent of
Guarantor, a receiver or trustee for it or approving a petition filed against
Guarantor which seeks relief under the bankruptcy or other similar laws of
the
United States, any state or any jurisdiction, and such order, judgment or decree
shall remain undischarged or unstayed sixty (60) days after it is entered;
(i) Guarantor
shall be liquidated or dissolved or shall begin proceedings towards its
liquidation or dissolution; or
(j) Guarantor
shall sell or transfer or enter into an agreement to sell or transfer all or
substantially all of its assets.
ARTICLE
IV
MISCELLANEOUS
Section
4.01 Effect
of Bankruptcy Proceedings.
This
Guaranty shall continue to be effective, or be automatically reinstated, as
the
case may be, if at any time payment, in whole or in part, of any of the
Guaranteed Obligations is rescinded or must otherwise be restored or returned
by
Landlord as a preference, fraudulent conveyance or otherwise under any
bankruptcy, insolvency or similar law, all as though such payment had not been
made. Guarantor hereby agrees to indemnify Landlord against, and to save and
hold Landlord harmless from any required return by Landlord, or recovery from
Landlord, of any such payment because of its being deemed preferential under
applicable bankruptcy, receivership or insolvency laws, or for any other reason.
If an Event of Default at any time shall have occurred and be continuing or
exist and declaration of default or acceleration under or with respect to either
Lease shall at such time be prevented by reason of the pendency against either
Tenant of a case or proceeding under any bankruptcy or insolvency law, Guarantor
agrees that, for purposes of this Guaranty and its obligations hereunder, the
applicable Lease shall be deemed to have been declared in default or accelerated
with the same effect as if such Lease had been declared in default and
accelerated in accordance with the terms thereof, and Guarantor shall forthwith
pay and perform the Guaranteed Obligations in full without further notice or
demand.
Section
4.02 Further
Assurances.
From
time to time upon the request of Landlord, Guarantor shall promptly and duly
execute, acknowledge and deliver any and all such further instruments and
documents as Landlord may deem necessary or desirable to confirm this Guaranty,
to carry out the purpose and intent hereof or to enable Landlord to enforce
any
of its rights hereunder.
Section
4.03 Amendments,
Waivers, Etc.
This
Guaranty cannot be amended, modified, waived, changed, discharged or terminated
except by an instrument in writing signed by the party against whom enforcement
of such amendment, modification, waiver, change, discharge or termination is
sought.
Section
4.04 No
Implied Waiver; Cumulative Remedies.
No
course of dealing and no delay or failure of Landlord in exercising any right,
power or privilege under this Guaranty or either Lease shall affect any other
or
future exercise thereof or exercise of any other right, power or privilege;
nor
shall any single or partial exercise of any such right, power or privilege
or
any abandonment or discontinuance of steps to enforce such a right, power or
privilege preclude any further exercise thereof or of any other right, power
or
privilege. The rights and remedies of Landlord under this Guaranty are
cumulative and not exclusive of any rights or remedies which Landlord would
otherwise have under a Lease, at law or in equity.
Section
4.05 Notices.
All
notices, requests, demands, directions and other communications (collectively
“notices”) under the provisions of this Guaranty shall be in writing (including
telexed communication) unless otherwise expressly permitted hereunder and shall
be sent by first-class or first-class express mail, or by telex with
confirmation in writing mailed first-class, in all cases with charges prepaid,
and any such properly given notice shall be effective when received. All notices
shall be sent to the applicable party addressed:
if
to
Landlord, at the address set forth in each Lease; and
if
to
Guarantor, at:
LMI
Aerospace, Inc.
[____________________________]
[____________________________]
or
in
accordance with the last unrevoked written direction from such party to the
other party.
Section
4.06 Expenses.
Guarantor agrees to pay or cause to be paid and to save Landlord harmless
against liability for the payment of all reasonable out-of-pocket expenses,
including fees and expenses of counsel for Landlord, incurred by Landlord from
time to time arising in connection with Landlord’s enforcement or preservation
of rights under this Guaranty or the Lease, including but not limited to such
expenses as may be incurred by Landlord in connection with any default by
Guarantor of any of its obligations hereunder or by either Tenant of any of
its
obligations under the Lease.
Section
4.07 Survival.
All
obligations of Guarantor to make payments to or indemnify Landlord shall survive
the payment and performance in full of the Guaranteed Obligations.
Section
4.08 Severability.
If any
term or provision of this Guaranty or the application thereof to any person
or
circumstance shall to any extent be invalid or unenforceable, the remainder
of
this Guaranty, or the application of such term or provision to persons or
circumstances other than those as to which it is invalid or unenforceable,
shall
not be affected thereby, and each term and provision of this Guaranty shall
be
valid and enforceable to the fullest extent permitted by law.
Section
4.09 Counterparts.
This
Guaranty may be executed in any number of counterparts and by the different
parties hereto on separate counterparts, each of which, when so executed, shall
be deemed an original, but all such counterparts shall constitute but one and
the same instrument.
Section
4.10 Governing
Law.
(a) This
Guaranty was negotiated in New York, New York, and accepted by Landlord in
the
State of New York, which State the parties agree has a substantial relationship
to the parties and to the underlying transaction embodied hereby, and in all
respects, including, without limiting the generality of the foregoing, matters
of construction, validity and performance, this Guaranty and the obligations
arising hereunder shall be governed by, and construed in accordance with, the
laws of the State of New York applicable to contract made and performed in
such
State and any applicable law of the United States of America. To the fullest
extent permitted by law, Guarantor hereby unconditionally and irrevocably waives
any claim to assert that the law of any other jurisdiction governs this
Guaranty, and the Guaranty shall be governed by and construed in accordance
with
the laws of the State of New York pursuant to § 5-1401 of the New York General
Obligations Law.
(b) Any
legal
suit, action or proceeding against Guarantor or Landlord arising out of or
relating to this Guaranty shall be instituted in any federal or state court
in
New York, New York, pursuant to § 5-1402 of the New York General Obligations
Law, and Guarantor waives any objection which it may now or hereafter have
to
the laying of venue of any such suit, action or proceeding and hereby
irrevocably submits to the jurisdiction of any such court in any suit, action
or
proceeding. Guarantor does hereby designate and appoint [_____________], as
its
authorized agent to accept and acknowledge on its behalf service of any and
all
process which may be served in any such suit, action or proceeding in any
federal or state court in New York, New York, and agrees that service of process
upon said agent at said address (or at such other office in New York, New York
as may be designated by Guarantor from time to time in accordance with the
terms
hereof), and written notice of said service of Guarantor mailed or delivered
to
Guarantor in the manner provided herein shall be deemed in every respect
effective service of process upon Guarantor, in any such suit, action or
proceeding in the State of New York. Guarantor (i) shall give prompt notice
to
the Landlord of any change of address of its authorized agent hereunder, (ii)
may at any time and from time to time designate a substitute authorized agent
with an office in New York, New York (which office shall be designated as the
address for service of process), and (iii) shall promptly designate such a
substitute if its authorized agent ceases to have an office in New York, New
York or is dissolved without leaving a successor.
Section
4.11 Jury
Trial.
GUARANTOR HEREBY WAIVES THE RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING
BASED UPON, OR RELATED TO, THE SUBJECT MATTER OF THIS GUARANTY. THIS WAIVER
IS
KNOWINGLY, INTENTIONALLY, AND VOLUNTARILY MADE BY GUARANTOR, AND GUARANTOR
ACKNOWLEDGES THAT THE LANDLORD HAS NOT MADE ANY REPRESENTATIONS OF FACT TO
INDUCE THIS WAIVER OF TRIAL BY JURY OR IN ANY WAY TO MODIFY OR NULLIFY ITS
EFFECT. GUARANTOR FURTHER ACKNOWLEDGES THAT GUARANTOR HAS BEEN REPRESENTED
IN
THE SIGNING OF THIS AGREEMENT AND IN THE MAKING OF ALL WAIVERS CONTAINED HEREIN
BY INDEPENDENT LEGAL COUNSEL, SELECTED BY GUARANTOR, AND GUARANTOR HAS HAD
THE
OPPORTUNITY TO DISCUSS THIS WAIVER WITH COUNSEL.
Section
4.12 Successors
and Assigns; Joint and Several.
This
Guaranty shall bind Guarantor and its successors and assigns, and shall inure
to
the benefit of Landlord and its successors and assigns. The obligations and
liabilities of each Guarantor under this Guaranty shall be joint and several.
As
used in this Guaranty, the singular shall include the plural and
vice-versa.
Section
4.13 Incorporation
of Recitals; Definitions.
The
recitals set forth on page 1 of this Guaranty are hereby specifically
incorporated into the operative terms of this Guaranty as if fully set forth.
Terms not otherwise specifically defined herein shall have the meanings set
forth in each Lease.
Section
4.14 Rights
of Lender.
Guarantor acknowledges that the rights of Landlord under this Guaranty may
be
assigned to a Lender and upon such assignment such Lender shall have all of
the
rights and benefits of Landlord hereunder.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
IN
WITNESS WHEREOF, Guarantor has duly executed and delivered this Guaranty as
of
the date first above written.
|
LMI
AEROSPACE, INC.
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|||
|
By:
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/s/ Xxxxxxxx X. Xxxxxxxxx | ||
|
Name:
|
Xxxxxxxx X. Xxxxxxxxx
|
||
|
Title:
|
Vice President, Chief Financial Officer and Secretary
|
||
|
Agreed
and Acknowledged:
|
|||
|
CIT
CRE LLC
|
|||
|
By:
|
/s/
Xxx Xxxxxxxxx
|
||
|
Name:
|
Xxx Xxxxxxxxx
|
||
|
Title:
|
Vice President
|
||
