Exhibit 10.5.4
GUARANTEE
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January 13, 1999
Congress Financial Corporation
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: The Doe Run Resources Corporation
and Fabricated Products, Inc.
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Gentlemen:
Congress Financial Corporation ("Lender"), The Doe Run Resources
Corporation ("Doe Run") and Fabricated Products, Inc. ("Fabricated Products",
together with Doe Run, individually and collectively, "Borrowers") have
entered into certain financing arrangements pursuant to which Lender has made
and may make loans and advances and provide other financial accommodations to
Borrowers as set forth in the Loan and Security Agreement, dated as of March
12, 1998, by and among Doe Run, Fabricated Products and Lender (as the same
now exists or may hereafter be amended, modified, supplemented, extended,
renewed, restated or replaced, the "Loan Agreement"), and other agreements,
documents and instruments referred to therein or at any time executed and/or
delivered in connection therewith or related thereto, including, but not
limited to, this Guarantee (all of the foregoing, together with the Loan
Agreement, as the same now exist or may hereafter be amended, modified,
supplemented, extended, renewed, restated or replaced, being collectively
referred to herein as the "Financing Agreements").
Due to the close business and financial relationships between
Borrowers and the undersigned ("Guarantor"), in consideration of the benefits
which will accrue to Guarantor and as an inducement for and in consideration
of Lender continuing to make loans and advances and providing other financial
accommodations to Borrowers pursuant to the Loan Agreement and the other
Financing Agreements, and in accordance with the terms of Section 6.2 of the
Loan Agreement, Guarantor hereby agrees in favor of Xxxxxx as follows:
1. GUARANTEE.
(a) Guarantor absolutely and unconditionally guarantees and
agrees to be liable for the full and indefeasible payment and performance
when due of the following (all of which are collectively referred to herein
as the "Guaranteed Obligations"): (i) all Obligations (as defined in the Loan
Agreement) of Borrowers to Lender, and (ii) all expenses (including, without
limitation, attorneys' fees and legal expenses) incurred by Lender in
connection with
the preparation, execution, delivery, recording, administration, collection,
liquidation, enforcement and defense of Guaranteed Obligations, under this
Guarantee and or in any way involving claims by or against Lender directly or
indirectly arising out of or related to the relationships arising out of this
Guarantee and the other Financing Agreements to which Guarantor is a party,
whether such expenses are incurred before, during or after the initial or any
renewal term of the Loan Agreement and the other Financing Agreements or
after the commencement of any case with respect to Borrowers or Guarantor
under the United States Bankruptcy Code or any similar statute.
(b) This Guarantee is a guaranty of payment and not of
collection. Xxxxxxxxx agrees that Xxxxxx need not attempt to collect any
Guaranteed Obligations from Borrowers, Guarantor or any other Obligor (as
defined in the Loan Agreement) or to realize upon any collateral, but may
require Guarantor to make immediate payment of all of the Guaranteed
Obligations to Lender when due, whether by maturity, acceleration or
otherwise, or at any time thereafter. Lender may apply any amounts received
in respect of the Guaranteed Obligations to any of the Guaranteed
Obligations, in whole or in part (including attorneys' fees and legal
expenses incurred by Lender with respect thereto or otherwise chargeable to
Borrowers or Guarantor) and in such order as Lender may elect.
(c) Payment by Guarantor shall be made to Lender at the office
of Lender from time to time on demand as Guaranteed Obligations become due.
Guarantor shall make all payments to Lender on the Guaranteed Obligations
free and clear of, and without deduction or withholding for or on account of,
any setoff, counterclaim, defense, duties, taxes, levies, imposts, fees,
deductions, withholding, restrictions or conditions of any kind. One or more
successive or concurrent actions may be brought hereon against Guarantor
either in the same action in which Borrowers or any other Obligor is sued or
in separate actions. In the event any claim or action, or action on any
judgment, based on this Guarantee is brought against Guarantor, Guarantor
agrees not to deduct, set-off, or seek any counterclaim for or recoup any
amounts which are or may be owed by Lender to Guarantor.
2. WAIVERS AND CONSENTS.
(a) Notice of acceptance of this Guarantee, the making of loans
and advances and providing other financial accommodations to Borrowers and
presentment, demand, protest, notice of protest, notice of nonpayment or
default and all other notices to which each of Borrowers or Guarantor is
entitled are hereby waived by Guarantor. Guarantor also waives notice of and
hereby consents to, (i) any amendment, modification, supplement, extension,
renewal, or restatement of the Loan Agreement and any of the other Financing
Agreements with respect to Borrowers only and not Guarantor, including,
without limitation, extensions of time of payment of or increase or decrease
in the amount of any of the Guaranteed Obligations, the interest rate, fees,
other charges, or any collateral, and the guarantee made herein shall apply
to the Loan Agreement and the other Financing Agreements and the Guaranteed
Obligations as so amended, modified, supplemented, renewed, restated or
extended, increased or decreased, (ii) the taking, exchange, surrender and
releasing of
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collateral or guarantees now or at any time held by or available to Lender
for the obligations of each of Borrowers or any Obligor, (iii) the exercise
of, or refraining from the exercise of any rights against each of Borrowers
or any other Obligor or any collateral, (iv) the settlement, compromise or
release of, or the waiver of any default with respect to, any of the
Guaranteed Obligations and (v) any financing by Lender of Borrowers under
Section 364 of the United States Bankruptcy Code or consent to the use of
cash collateral by Lender under Section 363 of the United States Bankruptcy
Code. Guarantor agrees that the amount of the Guaranteed Obligations shall
not be diminished and the liability of Guarantor hereunder shall not be
otherwise impaired or affected by any of the foregoing.
(b) No invalidity, irregularity or unenforceability of all or
any part of the Guaranteed Obligations shall affect, impair or be a defense
to this Guarantee, nor shall any other circumstance which might otherwise
constitute a defense available to or legal or equitable discharge of
Borrowers in respect of any of the Guaranteed Obligations, or Guarantor in
respect of this Guarantee, affect, impair or be a defense to this Guarantee
(except the defense of payment in full). Without limitation of the
foregoing, the liability of Guarantor hereunder shall not be discharged or
impaired in any respect by reason of any failure by Lender to perfect or
continue perfection of any lien or security interest in any collateral of the
Borrowers or any delay by Lender in perfecting any such lien or security
interest. As to interest, fees and expenses, whether arising before or after
the commencement of any case with respect to Borrowers under the United
States Bankruptcy Code or any similar statute, Guarantor shall be liable
therefor, even if Borrowers' liability for such amounts does not, or ceases
to, exist by operation of law. Guarantor acknowledges that Xxxxxx has not
made any representations to Guarantor with respect to Borrowers, any other
Obligor or otherwise in connection with the execution and delivery by
Guarantor of this Guarantee and Guarantor is not in any respect relying upon
Lender or any statements by Lender in connection with this Guarantee.
(c) Guarantor hereby irrevocably and unconditionally waives and
relinquishes all statutory, contractual, common law, equitable and all other
claims against Borrowers, any collateral of the Borrowers for the Guaranteed
Obligations or other assets of Borrowers or any other Obligor, for
subrogation, reimbursement, exoneration, contribution, indemnification,
setoff or other recourse in respect to sums paid or payable to Lender by
Guarantor hereunder and Guarantor hereby further irrevocably and
unconditionally waives and relinquishes any and all other benefits which
Guarantor might otherwise directly or indirectly receive or be entitled to
receive by reason of any amounts paid by or collected or due from Guarantor,
Borrowers or any other Obligor upon the Guaranteed Obligations or realized
from their property, until the Guaranteed Obligations have been indefeasibly
paid and satisfied in full and the Financing Agreements have been terminated.
3. SUBORDINATION. Payment of any amounts now or hereafter owed to
Guarantor by Borrowers or any other Obligor is hereby subordinated in right
of payment to the indefeasible payment in full to Lender of the Guaranteed
Obligations (subject to such payments thereof as
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are permitted under the Loan Agreement) and all such amounts and any security
and guarantees therefor are hereby assigned to Lender as security for the
Guaranteed Obligations.
4. ACCELERATION. Notwithstanding anything to the contrary contained
herein or any of the terms of any of the other Financing Agreements, the
liability of Guarantor for the entire Guaranteed Obligations shall mature and
become immediately due and payable, even if the liability of Borrowers or any
other Obligor therefor does not, upon the occurrence of any act, condition or
event which constitutes an Event of Default as such term is defined in the
Loan Agreement.
5. ACCOUNT STATED. The books and records of Lender showing the
account between Xxxxxx and Borrowers shall be admissible in evidence in any
action or proceeding against or involving Guarantor as PRIMA FACIE proof of
the items therein set forth, and the monthly statements of Lender rendered to
Borrowers shall absent manifest errors or omissions, be considered correct
and deemed accepted by Guarantor and conclusively binding upon Guarantor as
an account stated except to the extent that Lender receives a written notice
from Borrowers or Guarantor of any specific exceptions of Borrowers or
Guarantor thereto within thirty (30) days after the date such statement has
been mailed by Xxxxxx.
6. TERMINATION. This Guarantee is continuing, unlimited, absolute
and unconditional. All Guaranteed Obligations shall be conclusively presumed
to have been created in reliance on this Guarantee. Guarantor shall continue
to be liable hereunder until one of Xxxxxx's officers actually receives a
written termination notice from Guarantor sent to Lender at its address set
forth above by certified mail, return receipt requested and thereafter as set
forth below. Revocation or termination hereof by Guarantor shall not affect,
in any manner, the rights of Lender or any obligations or duties of Guarantor
under this Guarantee with respect to (a) Guaranteed Obligations which have
been created, contracted, assumed or incurred prior to the receipt by Lender
of such written notice of revocation or termination as provided herein,
including, without limitation, (i) all amendments, extensions, renewals and
modifications of such Guaranteed Obligations (whether or not evidenced by new
or additional agreements, documents or instruments executed on or after such
notice of revocation or termination), (ii) all interest, fees and similar
charges accruing or due on and after revocation or termination, and (iii) all
attorneys' fees and legal expenses, costs and other expenses paid or incurred
on or after such notice of revocation or termination in attempting to collect
or enforce any of the Guaranteed Obligations against each of Borrowers,
Guarantor or any other Obligor (whether or not suit be brought), or (b)
Guaranteed Obligations which have been created, contracted, assumed or
incurred after the receipt by Lender of such written notice of revocation or
termination as provided herein pursuant to any contract entered into by
Lender prior to receipt of such notice. The sole effect of such revocation
or termination by Guarantor shall be to exclude from this Guarantee the
liability of Guarantor for those Guaranteed Obligations arising after the
date of receipt by Xxxxxx of such written notice which are unrelated to
Guaranteed Obligations arising or transactions entered into prior to such
date. Without limiting the foregoing, this Guarantee may not be terminated
and shall
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continue so long as the Loan Agreement shall be in effect (whether during its
original term or any renewal, substitution or extension thereof).
7. REINSTATEMENT. If after receipt of any payment of, or proceeds
of collateral applied to the payment of, any of the Guaranteed Obligations,
Lender is required to surrender or return such payment or proceeds to any
Person for any reason, then the Guaranteed Obligations intended to be
satisfied by such payment or proceeds shall be reinstated and continue and
this Guarantee shall continue in full force and effect as if such payment or
proceeds had not been received by Lender. Guarantor shall be liable to pay
to Lender, and does indemnify and hold Lender harmless for the amount of any
payments or proceeds surrendered or returned. This Section 7 shall remain
effective notwithstanding any contrary action which may be taken by Xxxxxx in
reliance upon such payment or proceeds. This Section 7 shall survive the
termination or revocation of this Guarantee.
8. AMENDMENTS AND WAIVERS. Neither this Guarantee nor any
provision hereof shall be amended, modified, waived or discharged orally or
by course of conduct, but only by a written agreement signed by an authorized
officer of Lender and, as to amendments, by an authorized officer of
Guarantor. Lender shall not by any act, delay, omission or otherwise be
deemed to have expressly or impliedly waived any of its rights, powers and/or
remedies unless such waiver shall be in writing and signed by an authorized
officer of Lender. Any such waiver shall be enforceable only to the extent
specifically set forth therein. A waiver by Lender of any right, power
and/or remedy on any one occasion shall not be construed as a bar to or
waiver of any such right, power and/or remedy which Lender would otherwise
have on any future occasion, whether similar in kind or otherwise.
9. CORPORATE EXISTENCE, POWER AND AUTHORITY. Guarantor is a
limited liability company duly organized and in good standing under the laws
of its state or other jurisdiction of formation and is duly qualified as a
foreign limited liability company and in good standing in all states or other
jurisdictions where the nature and extent of the business transacted by it or
the ownership of assets makes such qualification necessary, except for those
jurisdictions in which the failure to so qualify would not have a material
adverse effect on the financial condition, results of operation or businesses
of Guarantor or the rights of Lender hereunder or under any of the other
Financing Agreements. The execution, delivery and performance of this
Guarantee are within the powers of Guarantor as a limited liability company,
have been duly authorized and are not in contravention of law or the terms of
the operating agreement, formation agreement or other organizational
documentation of Guarantor, or any indenture, agreement or undertaking to
which Guarantor is a party or by which Guarantor or its property are bound.
This Guarantee constitutes the legal, valid and binding obligation of
Guarantor enforceable in accordance with its terms.
10. GOVERNING LAW; CHOICE OF FORUM; SERVICE OF PROCESS; JURY TRIAL
WAIVER.
(a) The validity, interpretation and enforcement of this
Guarantee and any dispute arising out of the relationship between Guarantor
and Xxxxxx, whether in contract,
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tort, equity or otherwise, shall be governed by the internal laws of the
State of New York (without giving effect to principles of conflicts of law).
(b) Guarantor hereby irrevocably consents and submits to the
non-exclusive jurisdiction of the Supreme Court of the State of New York in
New York County and the United States District Court for the Southern
District of New York and waives any objection based on venue or FORUM NON
CONVENIENS with respect to any action instituted therein arising under this
Guarantee or any of the other Financing Agreements or in any way connected
with or related or incidental to the dealings of Guarantor and Lender in
respect of this Guarantee or any of the other Financing Agreements or the
transactions related hereto or thereto, in each case whether now existing or
hereafter arising and whether in contract, tort, equity or otherwise, and
agrees that any dispute arising out of the relationship between Guarantor or
Borrowers and Lender or the conduct of any such persons in connection with
this Guarantee, the other Financing Agreements or otherwise shall be heard
only in the courts described above (except that Lender shall have the right
to bring any action or proceeding against Guarantor or its property in the
courts of any other jurisdiction which Lender deems necessary or appropriate
in order to realize on any collateral at any time granted by Borrowers or
Guarantor to Lender or to otherwise enforce its rights against Guarantor or
its property).
(c) Guarantor hereby waives personal service of any and all
process upon it and consents that all such service of process may be made by
certified mail (return receipt requested) directed to its address set forth
on the signature pages hereof and service so made shall be deemed to be
completed ten (10) days after the same shall have been so deposited in the
U.S. mails, or, at Lender's option, by service upon Guarantor in any other
manner provided under the rules of any such courts. Within thirty (30) days
after such service, Guarantor shall appear in answer to such process, failing
which Guarantor shall be deemed in default and judgment may be entered by
Lender against Guarantor for the amount of the claim and other relief
requested.
(d) GUARANTOR AND LENDER EACH HEREBY WAIVES ANY RIGHT TO TRIAL
BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (i) ARISING UNDER
THIS GUARANTEE OR ANY OF THE OTHER FINANCING AGREEMENTS OR (ii) IN ANY WAY
CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF GUARANTOR AND
LENDER IN RESPECT OF THIS GUARANTEE OR ANY OF THE OTHER FINANCING AGREEMENTS
OR THE TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE WHETHER NOW
EXISTING OR HEREAFTER ARISING, AND WHETHER IN CONTRACT, TORT, EQUITY OR
OTHERWISE. XXXXXXXXX AND XXXXXX EACH HEREBY AGREES AND CONSENTS THAT ANY
SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL
WITHOUT A JURY AND THAT GUARANTOR OR LENDER MAY FILE AN ORIGINAL COUNTERPART
OF A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE
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CONSENT OF XXXXXXXXX AND XXXXXX TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
(e) Lender shall not have any liability to Guarantor (whether
in tort, contract, equity or otherwise) for losses suffered by Guarantor in
connection with, arising out of, or in any way related to the transactions or
relationships contemplated by this Guarantee, or any act, omission or event
occurring in connection herewith, unless it is determined by a final and
non-appealable judgment or court order binding on Lender that the losses were
the result of acts or omissions constituting gross negligence or willful
misconduct. In any such litigation, Xxxxxx shall be entitled to the benefit
of the rebuttable presumption that it acted in good faith and with the
exercise of ordinary care in the performance by it of the terms of the Loan
Agreement and the other Financing Agreements.
11. NOTICES. All notices, requests and demands hereunder shall be
in writing and (a) made to Lender at its address set forth above and to
Guarantor at its chief executive office set forth below, or to such other
address as either party may designate by written notice to the other in
accordance with this provision, and (b) deemed to have been given or made: if
delivered in person, immediately upon delivery; if by telex, telegram or
facsimile transmission, immediately upon sending and upon confirmation of
receipt; if by nationally recognized overnight courier service with
instructions to deliver the next business day, one (1) business day after
sending; and if by certified mail, return receipt requested, ten (10) days
after mailing.
12. PARTIAL INVALIDITY. If any provision of this Guarantee is held
to be invalid or unenforceable, such invalidity or unenforceability shall not
invalidate this Guarantee as a whole, but this Guarantee shall be construed
as though it did not contain the particular provision held to be invalid or
unenforceable and the rights and obligations of the parties shall be
construed and enforced only to such extent as shall be permitted by
applicable law.
13. ENTIRE AGREEMENT. This Guarantee represents the entire
agreement and understanding of this parties concerning the subject matter
hereof, and supersedes all other prior agreements, understandings,
negotiations and discussions, representations, warranties, commitments,
proposals, offers and contracts concerning the subject matter hereof, whether
oral or written.
14. SUCCESSORS AND ASSIGNS. This Guarantee shall be binding upon
Guarantor and its successors and assigns and shall inure to the benefit of
Lender and its successors, endorsees, transferees and assigns. The
liquidation, dissolution or termination of Guarantor shall not terminate this
Guarantee as to such entity or as to Guarantor.
15. CONSTRUCTION. All references to the term "Guarantor" wherever
used herein shall mean Guarantor and its successors and assigns (including,
without limitation, any receiver, trustee or custodian for Guarantor or any
of its assets or Guarantor in its capacity as debtor or debtor-in-possession
under the United States Bankruptcy Code). All references to the term
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"Lender" wherever used herein shall mean Lender and its successors and
assigns and all references to the term "Borrowers" wherever used herein shall
mean each of Borrowers and their successors and assigns, jointly and
severally, individually and collectively (including, without limitation, any
receiver, trustee or custodian for each Borrower or any of its assets or each
Borrower in its capacity as debtor or debtor-in-possession under the United
States Bankruptcy Code). All references to the term "Person" or "person"
wherever used herein shall mean any individual, sole proprietorship,
partnership, corporation (including, without limitation, any corporation
which elects subchapter S status under the Internal Revenue Code of 1986, as
amended), limited liability company, limited liability partnership, business
trust, unincorporated association, joint stock corporation, trust, joint
venture or other entity or any government or any agency or instrumentality or
political subdivision thereof. All references to the plural shall also mean
the singular and to the singular shall also mean the plural.
IN WITNESS WHEREOF, Xxxxxxxxx has executed and delivered this
Guarantee as of the day and year first above written.
DR LAND HOLDINGS, LLC
By: /s/ Xxxxxx X. Xxxxxx
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Title: Vice President
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Chief Executive Office
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0000 Xxxx 000 Xxxxx
Xx. Xxxxx, Xxxxxxxx
Attn: Managing Member
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