COMPLETION GUARANTY
Exhibit 10.16
THIS COMPLETION GUARANTY (this "Guaranty") is executed as of August 15, 2018, by NEXPOINT STRATEGIC OPPORTUNITIES FUND, a Delaware statutory trust, and HCRE PARTNERS, LLC, a Delaware limited liability company (individually and collectively, "Guarantor"), for the benefit of ACORE CAPITAL MORTGAGE, LP, a Delaware limited partnership, in its capacity as administrative agent for and on behalf of the Lenders from time to time party to the Loan Agreement defined below (together with its successors and/or assigns, "Administrative Agent").
RECITALS:
WHEREAS, pursuant to that certain Loan Agreement dated of even date herewith among CP TOWER OWNER, LLC, a Delaware limited liability company, and CP LAND OWNER, LLC, a Delaware limited liability company (collectively, "Borrower"), the Lenders from time to time party thereto, and Administrative Agent (as the same may be amended, the "Loan Agreement"), Xxxxxx has agreed to make a Loan to Borrower on the terms and conditions described therein; capitalized terms not defined herein shall have the respective meanings set forth in the Loan Agreement; and
WHEREAS, Xxxxxx is not willing to make the Loan to Borrower unless Guarantor executes and delivers this Guaranty.
NOW, THEREFORE, as an inducement to Lender to make the Loan to Borrower, and for other good and valuable consideration, the receipt and legal sufficiency of which are hereby acknowledged, Guarantor hereby agrees as follows:
1.Guaranty of Obligation.
(a)Guarantor hereby irrevocably and unconditionally guarantees to Administrative Agent (for the benefit of the Lenders) the payment and performance of the Guaranteed Obligations as and when the same shall be due and payable, whether by lapse of time, by acceleration of maturity or otherwise. Guarantor hereby irrevocably and unconditionally covenants and agrees that it is fully and personally liable for the Guaranteed Obligations as a primary obligor as set forth herein. As used herein, the term "Guaranteed Obligations" means the complete payment and performance (as applicable) when due of Borrower's obligations pursuant to the Loan Agreement to: (i) Complete the Project in its entirety in accordance with the Project Documents, the Administrative Agent-approved Plans and Specifications, all Legal Requirements, and the Loan Documents, free and clear of all Liens (other than Permitted Encumbrances not consisting of liens for labor or materials) (collectively, the "Requirements"); (ii) pay all expenses, charges, costs and fees of, or relating to, the Completion of the Project (including, without limitation, hard costs, soft costs, all permitting fees, licensing fees, amounts payable under all construction contracts and all subcontracts, amounts payable to the general contractor, all architects, engineers and other consultants engaged in connection with the Completion of the Project (and including, without limitation, any amount necessary to remove any Lien (other than Permitted Encumbrances not consisting of liens for labor or materials) filed against the Property in connection with the Completion of the Project), in the amount specified pursuant to Section 1(b) or Section 1(c) below, whichever is applicable (as elected by Administrative Agent in its sole and absolute discretion); and (iii) pay to Administrative Agent the amount necessary to cure any Balancing Event.
(b)Without limiting any of Administrative Agent's or Xxxxxx's right hereunder or under any of the other Loan Documents, during the existence of an Event of Default, Administrative Agent shall have the option to (i) cause the Completion of the Project;
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(ii) pay any expenses described herein as part of the Guaranteed Obligations; and/or (iii) cause the removal of any Lien on the Property (other than Permitted Encumbrances not consisting of liens for labor or materials). In each such instance, Guarantor shall within ten (10) Business Days of Administrative Agent's written demand, reimburse Administrative Agent and Lender for all sums paid by Administrative Agent or Lender with respect thereto, including any reasonable attorney's fees in connection therewith; provided, however, that Guarantor's payment obligations with respect to this Section 1(b) shall be limited to the sum of (A) all Actual Cost Overruns (as defined below), less (B) any amounts then held by Administrative Agent and delivered by Borrower in connection with curing of any Balancing Event. Nothing in this Section 1(b) shall limit Guarantor's obligations under Section 4 below. As used herein, the term "Actual Cost Overruns" means the excess, if any, of (1) all costs actually incurred in connection with the Completion of the Project free of Liens (other than the Liens of the Loan Documents), minus (2) without duplication of amounts deducted above, the amounts then contained in any Reserve Account pursuant to the Loan Agreement that would have otherwise been available to Borrower to pay for the cost of the Project, minus (3) the unadvanced amount of funds that would have otherwise been available to Borrower as an Additional Advance to pay for the cost of the Project pursuant to the terms and conditions of the Loan Agreement.
(c)Without limiting any of Administrative Agent's or Xxxxxx's rights hereunder or under any of the other Loan Documents, whether or not Administrative Agent shall elect to exercise its rights under the Loan Documents to Complete the Project, Administrative Agent shall have the option, in its sole and absolute discretion, exercisable from and after the date when Administrative Agent shall be entitled to cause Guarantor to pay or perform the Guaranteed Obligations hereunder, to require Guarantor to pay to Administrative Agent, as Guarantor's sole liability for payment and performance of the Guaranteed Obligations and as liquidated damages, an amount equal to the sum of (i) all Projected Cost Overruns (as defined below), less (ii) any amounts then held by Administrative Agent and delivered by Borrower in connection with curing of any Balancing Event. Such payment shall be due no later than ten (10) Business Days following Administrative Agent's written demand therefor. If Administrative Agent elects to receive such payment under this Section 1(c), such payment shall be as liquidated damages, and not as a penalty, the parties agreeing the estimation of Administrative Agent's and Xxxxxx's actual damages on account of Xxxxxxxx's and Guarantor's failure to Complete the Project would be difficult to estimate. Nothing in this Section 1(c) shall limit Guarantor's obligations under Section 4 below. As used herein, the term "Projected Cost Overruns" means the excess, if any, of (A) all costs of Completing the applicable Project estimated by Administrative Agent as of the date Administrative Agent demands payment by Guarantor under this Guaranty (even if Administrative Agent does not intend to Complete the Project) free of Liens (other than the Liens of the Loan Documents), minus (B) without duplication of amounts deducted above, the amounts then contained in any Reserve Account pursuant to the Loan Agreement that would have otherwise been available to Borrower to pay for the cost of the Project, minus (C) the unadvanced amount of funds that would have otherwise been available to Borrower as an Additional Advance to pay for the cost of the Project pursuant to the terms and conditions of the Loan Agreement.
(d)Guarantor acknowledges and agrees that the unpaid amount of the Guaranteed Obligations as described in this Section 1, if not paid when due pursuant to this Guaranty and the other Loan Documents, shall, at Administrative Agent's election in its sole and absolute discretion, be deemed to be added to and form a part of the Debt for all purposes under the Loan Documents. For the avoidance of doubt, Guarantor's obligation to pay the unpaid amount of the Guaranteed Obligations as described in this Section 1 shall survive any foreclosure or the giving of any deed-in-lieu of foreclosure with respect to the Property, and shall not be reduced or limited by any repayment of the Loan or by any amount bid by Administrative Agent in connection with any foreclosure under the Loan Documents. Guarantor acknowledges and agrees that its obligations under this Guaranty to pay to Administrative Agent the unpaid amount
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of the Guaranteed Obligations as described in this Section 1 are separate and distinct from any obligation of Borrower to repay the Debt, and that such obligation does not constitute a guaranty of the Loan or of any of Borrower's obligations with respect to the Loan except to the extent that such unpaid amount of the Guaranteed Obligations as described in this Section 1 are actually added to and form a part of the Debt as provided above.
(e)By its acceptance of this Guaranty, Administrative Agent and Xxxxxx each agrees to the following terms and conditions:
(i)As used in this Guaranty, the term "Completion Guaranty Event of Default" shall mean the existence of any of the following events: (A) the failure by Guarantor to cause a Balancing Event not to exist within the time period (with all applicable time periods commencing as of the applicable dates on which notice thereof is delivered to Guarantor in accordance with the requirements of this Guaranty) during which Borrower is required to cause the same not to exist pursuant to the Loan Agreement; (B) the failure by Guarantor at any time to be diligently pursuing the Completion of the Project; (C) the failure by Guarantor to pay any amount then due to Administrative Agent and Lender under this Guaranty within ten (10) Business Days after written notice thereof from Administrative Agent; (D) the existence of an Event of Default as described in Sections 6.1(a), (b), (c), (d), (f), (j), or (m) of the Loan Agreement; and (E) the existence of any other Event of Default that is susceptible of being cured by Guarantor on the Borrower's behalf.
(ii)In the event that Administrative Agent demands that Guarantor undertake the Completion of the Project, then so long as a Completion Guaranty Event of Default does not then exist, Xxxxxx agrees to continue to make Additional Advances to Guarantor and make disbursements to Guarantor from any applicable Reserve Account, in either case for the payment or reimbursement of applicable Project Expenditures, subject to the following terms and conditions:
(A)Guarantor shall have satisfied all of the other Borrower obligations which are conditions precedent to the making of an Additional Advance or the disbursement of funds from any applicable Reserve Account for the payment or reimbursement of Project Expenditures, as applicable (but for the avoidance of doubt, the existence of an Event of Default that is not a Completion Guaranty Event of Default shall not preclude Guarantor from obtaining such Additional Advance or disbursement);
(B)Borrower and Guarantor shall have executed an acknowledgement in form and content reasonably acceptable to Administrative Agent that (1) such Additional Advance or disbursement has been made to or for the benefit of Borrower pursuant to the Loan Agreement, and (2) the agreement by Lender to make such further Additional Advances or disbursements to Guarantor pursuant to this Section 1(e) shall not prejudice or impair the right of Administrative Agent to demand performance by Borrower or Guarantor of any of their respective obligations under the Loan Documents, to declare Defaults or Events of Default under the Loan Documents, to exercise any rights and remedies thereunder, or be deemed to be a waiver, estoppel, acceptance of course of conduct or forbearance by Administrative Agent under the Loan Documents; and
(C)all Additional Advances and disbursements made to Guarantor pursuant to this Section 1(e) shall be used only for the purpose of paying or performing the Guaranteed Obligations hereunder.
(iii)Nothing contained in this Section 1(e) shall in any way limit, impair or affect the rights, remedies and options of Administrative Agent or Lender under any of the Loan Documents.
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2.Nature of Guaranty. This Guaranty is an irrevocable, absolute, continuing guaranty of payment and performance and not a guaranty of collection. This Guaranty may not be revoked by Guarantor and if Guarantor is a natural person, shall continue to be effective after Guarantor's death (in which event this Guaranty shall be binding upon Guarantor's estate and heirs).
3.Waivers. Guarantor agrees and acknowledges that it has received copies of the Loan Documents, and hereby waives notice of (a) any loans or advances made by Lender to Borrower, (b) acceptance of this Guaranty, (c) any amendment or extension of the Loan Documents, (d) the execution and delivery by Xxxxxxxx and Administrative Agent and/or Lender of any other loan or credit agreement or of Xxxxxxxx's execution and delivery of any promissory notes or other documents arising under the Loan Documents or in connection with the Property, (e) the occurrence of any Default or Event of Default, (f) Administrative Agent's transfer or disposition of the Guaranteed Obligations, or any part thereof, to any Person acquiring all or any portion of (or any interest in) the Loan, (g) sale or foreclosure (or posting or advertising for sale or foreclosure) of any collateral for the Guaranteed Obligations, (h) protest, proof of non-payment or default by Xxxxxxxx, and (i) any other action at any time taken or omitted by Lender or Administrative Agent, and, generally, all demands and notices of every kind in connection with this Guaranty, the Loan Documents, any documents or agreements evidencing, securing or relating to any of the Guaranteed Obligations, except such notices and demands expressly required in the Loan Documents. In addition Guarantor hereby expressly waives: (i) any right to revoke this Guaranty; (ii) any right to require Lender or Administrative Agent to do any of the following before Guarantor is obligated to pay or perform the Guaranteed Obligations or before Administrative Agent may proceed against Guarantor: (A) sue or exhaust remedies against Borrower or any other person liable for the Guaranteed Obligations or any portion thereof; (B) sue on an accrued right of action in respect of any of the Guaranteed Obligations or bring any other action, exercise any other right, or exhaust any other remedy; (C) enforce rights against Borrower's assets or the collateral pledged by Borrower to secure the Guaranteed Obligations; (D) join Borrower or any others liable on the Guaranteed Obligations in any action seeking to enforce this Guaranty; or (E) mitigate damages or take any other action to reduce, collect or enforce the Guaranteed Obligations; (iii) any right relating to the timing, manner or conduct of Administrative Agent's enforcement of rights against Borrower's assets or the collateral pledged by Borrower to secure the Guaranteed Obligations; (iv) if Guarantor and/or Borrower (or any other person) have each pledged assets to secure the Guaranteed Obligations, any right to require Lender or Administrative Agent to proceed first against collateral pledged by Borrower (or any other person) before proceeding against the collateral pledged by Guarantor; (v) promptness, diligence, notice of any default, notice of nonpayment or nonperformance, notice of acceleration or intent to accelerate, demand for payment or performance, acceptance or notice of acceptance of this Guaranty, presentment, notice of protest, notice of dishonor, notice of the incurring by Borrower of additional indebtedness, notice of any suit or other action by Administrative Agent against Borrower or any other person, any notice to any person liable for the obligation which is the subject of the suit or action, and all other notices and demands with respect to the Guaranteed Obligations and this Guaranty; and (vi) any and all rights it may now or hereafter have under any agreement, at law or in equity (including, without limitation, any law subrogating the Guarantor to the rights of Lender or Administrative Agent), to assert any claim against or seek contribution, indemnification or any other form of reimbursement from Borrower or any other party liable for payment of any or all of the Guaranteed Obligations for any payment made by Guarantor under or in connection with this Guaranty or otherwise prior to satisfaction in full of Guarantor's obligations hereunder (except for only those obligations which, by their express terms, survive indefeasible repayment of the Debt).
4.Payment of Expenses. In the event that Guarantor should fail to timely perform any provisions of this Guaranty, Guarantor shall, within ten (10) days of written demand by Administrative Agent, pay Administrative Agent all out-of-pocket costs and expenses (including
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court costs and reasonable attorneys' fees) actually incurred by Xxxxxx or Administrative Agent in the enforcement hereof or the preservation of Lender or Administrative Agent's rights hereunder, together with interest thereon at the Default Rate from the date of demand by Administrative Agent until the date of payment to Administrative Agent. Any amounts payable to Administrative Agent hereunder shall be due and payable on written demand and, if not paid within ten (10) days of such demand therefor, shall bear interest at the Default Rate from the date payment was due. This Section 4 shall survive the payment and performance of the Guaranteed Obligations.
5.Effect of Bankruptcy. In the event that, pursuant to any insolvency, bankruptcy, reorganization, receivership or other debtor relief law, or any judgment, order or decision thereunder, Lender or Administrative Agent must rescind or restore any payment, or any part thereof, received by Lender or Administrative Agent in satisfaction of the Guaranteed Obligations, as set forth herein, any prior release or discharge from the terms of this Guaranty given to Guarantor by Lender or Administrative Agent shall be without effect, Guarantor's obligations hereunder with respect to such payment shall be reinstated as though such payment has been due but not made at such time, and this Guaranty shall remain in full force and effect. It is the intention of Xxxxxxxx and Guarantor that Guarantor's obligations hereunder shall not be discharged except by Guarantor's performance of such obligations and then only to the extent of such performance.
6.No Discharge. Guarantor agrees that its obligations under this Guaranty shall not be released, diminished, or adversely affected by any of the following, and waives any common law, equitable, statutory or other rights (including without limitation rights to notice) which Guarantor might otherwise have as a result of or in connection with any of the following: (a) any modification, extension, or increase of all or any part of the Guaranteed Obligations or the Loan Documents; (b) any adjustment, indulgence, forbearance or compromise that might be granted or given by Lender or Administrative Agent to Borrower or Guarantor; (c) the insolvency, bankruptcy, arrangement, adjustment, composition, liquidation, disability, dissolution or lack of power of Borrower, Guarantor or any other party at any time liable for the payment of all or part of the Guaranteed Obligations, or any dissolution of Borrower or Guarantor, or any payment by Borrower to Lender or Administrative Agent being held to constitute a preference under bankruptcy laws or for any reason Lender or Administrative Agent is required to refund such payment or pay such amount to Borrower or someone else pursuant to any applicable Federal or State bankruptcy or insolvency law relating to the bankruptcy or insolvency of Borrower or Guarantor; (d) any sale, lease or transfer of any or all of the assets of Borrower or Guarantor, or any changes in the shareholders, partners or members of Borrower or Guarantor; or any reorganization of Borrower or Guarantor, or the reorganization, merger or consolidation of Borrower into or with any other corporation or entity; (e) the invalidity, illegality or unenforceability of all or any part of the Guaranteed Obligations, or any document or agreement executed in connection with or evidencing the Guaranteed Obligations, for any reason whatsoever, including without limitation the fact that (i) the Guaranteed Obligations, or any part thereof, exceeds the amount permitted by law, (ii) the act of creating the Guaranteed Obligations or any part thereof is ultra xxxxx, (iii) the officers or representatives executing the Loan Documents or otherwise creating the Guaranteed Obligations acted in excess of their authority, (iv) the Guaranteed Obligations violate applicable usury laws, (v) the Borrower (or any other Person) has valid defenses (except the defense of payment or performance of the applicable Guaranteed Obligation), claims or offsets (whether at law, in equity or by agreement) which render the Guaranteed Obligations wholly or partially reduced or uncollectible from Borrower (whether such right of offset, claim or defense arises in connection with the Guaranteed Obligations, the transactions creating the Guaranteed Obligations or otherwise), (vi) the creation, performance or repayment of the Guaranteed Obligations (or the execution, delivery and performance of any document or instrument representing part of the Guaranteed Obligations or executed in connection with the Guaranteed Obligations, or given to secure the repayment of the
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Guaranteed Obligations) is illegal, uncollectible or unenforceable, or (vii) the Loan Documents have been forged or otherwise are irregular or not genuine or authentic, it being agreed that Guarantor shall remain liable hereon regardless of whether Borrower or any other Person be found not liable on the Guaranteed Obligations or any part thereof for any reason; (f) any full or partial release of the liability of Borrower for any part of the Guaranteed Obligations, or of any co-guarantors, or any other person or entity now or hereafter liable, whether directly or indirectly, jointly, severally, or jointly and severally, to pay, perform, guarantee or assure the payment of the Guaranteed Obligations, or any part thereof, it being recognized, acknowledged and agreed by Guarantor that Guarantor may be required to pay the Guaranteed Obligations in full without assistance or support of any other party, and Guarantor has not been induced to enter into this Guaranty on the basis of a contemplation, belief, understanding or agreement that other Persons will be liable to pay or perform the Guaranteed Obligations, or that Lender or Administrative Agent will look to other Persons to pay or perform the Guaranteed Obligations; (g) the taking or accepting of any other security, collateral or guaranty, or other assurance of payment, for all or any part of the Guaranteed Obligations; (h) any release, surrender, exchange, subordination, deterioration, waste, loss or impairment (including without limitation negligent, willful, unreasonable or unjustifiable impairment) of any collateral, property or security at any time existing in connection with, or assuring or securing payment of, all or any part of the Guaranteed Obligations; (i) the failure of Lender or Administrative Agent or any other party to exercise diligence or reasonable care in the preservation, protection, enforcement, sale or other handling or treatment of all or any part of such collateral, property or security, including but not limited to any neglect, delay, omission, failure; or (j) any other action taken or omitted to be taken with respect to the Loan Documents, the Guaranteed Obligations, or the security and collateral therefor, whether or not such action or omission prejudices Guarantor or increases the likelihood that Guarantor will be required to pay the Guaranteed Obligations pursuant to the terms hereof, it is the unambiguous and unequivocal intention of Guarantor that Guarantor shall be obligated to pay the Guaranteed Obligations when due, notwithstanding any occurrence, circumstance, event, action, or omission whatsoever, whether contemplated or uncontemplated, and whether or not otherwise or particularly described herein, which obligation shall be deemed satisfied only upon the full and final payment and satisfaction of the Guaranteed Obligations (except for only those obligations which, by their express terms, survive indefeasible repayment of the Debt).
7.Representations and Warranties. To induce Administrative Agent and Lender to enter into the Loan Documents, Guarantor represents and warrants to Administrative Agent and Lender as follows: (a) Guarantor has received, or will receive, direct or indirect benefit from the making of the Loan to Borrower; (b) Guarantor is familiar with the financial condition of the Borrower and is familiar with the value of any and all collateral intended to be created as security for the payment of the Guaranteed Obligations (however, Guarantor is not relying on such financial condition or the collateral as an inducement to enter into this Guaranty); (c) neither Administrative Agent nor any Lender or other party has made any representation, warranty or statement to Guarantor in order to induce the Guarantor to execute this Guaranty; (d) as of the date hereof, giving effect to this Guaranty and the contingent obligation evidenced hereby, Guarantor is solvent, and has assets which, fairly valued, exceed its obligations, liabilities (including contingent liabilities) and debts, and has property and assets sufficient to satisfy and repay its obligations and liabilities; and (e) this Guaranty is a legal and binding obligation of Guarantor and is enforceable in accordance with its terms, except as limited by general principles of equity and bankruptcy, insolvency or other laws of general application relating to the enforcement of creditors' rights. All representations and warranties made by Guarantor herein shall survive the execution hereof.
8.Financial Covenants; Reporting. Guarantor (together with all Persons that constitute Guarantor) shall at all times (a) maintain a Guarantor Net Worth (as defined in that certain Guaranty of Recourse Obligations dated of even date herewith (the "Recourse
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Guaranty")) of at least ONE HUNDRED MILLION AND 00/100 DOLLARS ($100,000,000.00), and (b) own Liquid Assets (as defined in the Recourse Guaranty), in its own name, of at least FIFTEEN MILLION AND 00/100 DOLLARS ($15,000,000.00). Guarantor shall deliver to Administrative Agent: (i) within ninety (90) days after the end of each calendar year, a complete copy of Guarantor's annual financial statements prepared by an Independent Accountant in accordance with the Approved Accounting Method (provided, however, audited statements shall be delivered to Administrative Agent within sixty (60) days of Administrative Agent's request therefor during the existence of an Event of Default or at any other time up to two (2) times during the term of the Loan in the event that Administrative Agent reasonably determines that the financial statements delivered by Guarantor are incomplete, inconsistent, or inaccurate, and Guarantor has not corrected any such deficiencies within fifteen (15) days of written notice thereof from Administrative Agent); (ii) not later than June 30 and December 31 of each calendar year, a Guarantor Certificate (as defined below), with the "Financial Covenants Certification" section completed in full; (iii) within ten (10) Business Days after Administrative Agent's request (but not sooner than the date on which the same is actually filed), a copy of Guarantor's filed federal income tax return for the preceding year; (iv) within five (5) Business Days after the filing of Guarantor's federal tax return, a certificate from an Independent Accountant confirming that such income tax return was properly filed and attaching evidence that all tax obligations stated therein to be due have been paid; and (v) within thirty (30) days after request by Administrative Agent, such other financial information with respect to Guarantor as Administrative Agent may reasonably request. Guarantor shall deliver to Administrative Agent a Guarantor Certificate with each items delivered pursuant to the foregoing clauses. As used herein, "Guarantor Certificate" means a certificate in the form attached to the Recourse Guaranty as Exhibit A.
9.Subordination of All Guarantor Claims. In the event of receivership, bankruptcy, reorganization, arrangement, debtor's relief, or other insolvency proceedings involving Guarantor as debtor, Administrative Agent and Lender shall have the right to prove its claim in any such proceeding so as to establish its rights hereunder and receive directly from the receiver, trustee or other court custodian dividends and payments which would otherwise be payable upon Guarantor Claims (as defined below). Guarantor hereby assigns such dividends and payments to Administrative Agent. Should Administrative Agent receive, for application upon the Guaranteed Obligations, any such dividend or payment which is otherwise payable to Guarantor, and which, as between Borrower and Guarantor, shall constitute a credit upon the Guarantor Claims, then upon payment to Administrative Agent in full of the Guaranteed Obligations, Guarantor shall become subrogated to the rights of Administrative Agent to the extent that such payments to Administrative Agent on the Guarantor Claims have contributed toward the liquidation of the Guaranteed Obligations, and such subrogation shall be with respect to that proportion of the Guaranteed Obligations which would have been unpaid if Administrative Agent had not received dividends or payments upon the Guarantor Claims. As used herein, the term "Guarantor Claims" shall mean all debts and liabilities of Borrower to Guarantor, whether such debts and liabilities now exist or are hereafter incurred or arise (including, without limitation, all rights and claims of Guarantor against Borrower (arising as a result of subrogation or otherwise) as a result of Guarantor's payment of all or a portion of the Guaranteed Obligations). In the event that Guarantor should receive any payment which is prohibited by this Guaranty, Guarantor agrees to hold such payment in trust for Administrative Agent and promptly pay the same to Administrative Agent to the extent of any unpaid Guaranteed Obligations. Guarantor agrees that until the Project has been Completed and Guarantor's obligations hereunder have been paid and performed in full, any liens, security interests, judgment liens, charges or other encumbrances upon Xxxxxxxx's assets securing payment of the Guarantor Claims shall be and remain inferior and subordinate to any liens, security interests, judgment liens, charges or other encumbrances upon Xxxxxxxx's assets securing payment of the Guaranteed Obligations, regardless of whether such encumbrances in favor of Guarantor or Administrative Agent presently exist or are hereafter created or attached. Without the prior
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written consent of Administrative Agent, until the Project has been Completed and Guarantor's obligations hereunder have been indefeasibly paid and performed in full (except for only those obligations which, by their express terms, survive indefeasible repayment of the Debt), Guarantor shall not (a) exercise or enforce any creditor's right it may have against Borrower or (b) foreclose, repossess, sequester or otherwise take steps or institute any action or proceedings (judicial or otherwise, including without limitation the commencement of, or joinder in, any liquidation, bankruptcy, rearrangement, debtor's relief or insolvency proceeding) to enforce any liens, mortgages, deeds of trust, security interests, collateral rights, judgments or other encumbrances on assets of Borrower held by Guarantor.
10.GOVERNING LAW; VENUE. THIS GUARANTY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW (OTHER THAN §§ 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW), EXCEPT TO THE EXTENT THAT THE APPLICABILITY OF ANY OF SUCH LAWS MAY NOW OR HEREAFTER BE PREEMPTED BY FEDERAL LAW, IN WHICH CASE SUCH FEDERAL LAW SHALL SO GOVERN AND BE CONTROLLING. ANY LEGAL SUIT, ACTION OR PROCEEDING AGAINST ADMINISTRATIVE AGENT, LENDER OR GUARANTOR ARISING OUT OF OR RELATING TO THIS GUARANTY MAY AT ADMINISTRATIVE AGENT'S OPTION BE INSTITUTED IN ANY FEDERAL OR STATE COURT IN THE CITY OF NEW YORK, COUNTY OF NEW YORK, PURSUANT TO SECTION 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW AND GUARANTOR WAIVES ANY OBJECTIONS WHICH IT MAY NOW OR HEREAFTER HAVE BASED ON VENUE AND/OR FORUM NON CONVENIENS OF ANY SUCH SUIT, ACTION OR PROCEEDING, AND GUARANTOR HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY SUCH COURT IN ANY SUIT, ACTION OR PROCEEDING. GUARANTOR DOES HEREBY DESIGNATE AND APPOINT:
XXXX XXXXX, LLP
ONE ROCKEFELLER PLAZA, ELEVENTH FLOOR
NEW YORK, NEW YORK 10020
ATTENTION: XXX-XXXXX XXXX
ONE ROCKEFELLER PLAZA, ELEVENTH FLOOR
NEW YORK, NEW YORK 10020
ATTENTION: XXX-XXXXX XXXX
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 AND WRITTEN NOTICE OF SAID SERVICE 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 ADMINISTRATIVE AGENT OF ANY CHANGED 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 SUBSTITUTE AGENT AND OFFICE SHALL BE DESIGNATED AS THE PERSON AND 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. NOTHING CONTAINED HEREIN SHALL AFFECT THE RIGHT OF LENDER OR ADMINISTRATIVE AGENT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST
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GUARANTOR IN ANY OTHER JURISDICTION. THIS PROVISION SHALL SURVIVE THE TERMINATION OF THIS GUARANTY.
11.WAIVER OF RIGHT TO TRIAL BY JURY. XXXXXXXXX, ADMINISTRATIVE AGENT, AND XXXXXX (BY THEIR ACCEPTANCE OF THIS GUARANTY) HEREBY AGREE NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVES ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST WITH REGARD TO THIS GUARANTY, THE NOTE, THE LOAN AGREEMENT, THE SECURITY INSTRUMENT, OR THE OTHER LOAN DOCUMENTS, OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION THEREWITH. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY XXXXXXXXX, ADMINISTRATIVE AGENT, AND XXXXXX, AND IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY JURY WOULD OTHERWISE ACCRUE. THE PARTIES HERETO ARE HEREBY AUTHORIZED TO FILE A COPY OF THIS PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY GUARANTOR.
12.Miscellaneous. All notices, consents, approvals and requests required or permitted hereunder shall be given (and shall be deemed effective) in the manner described in Section 8.6 of the Loan Agreement, and Guarantor's address for such purposes shall be the address of Guarantor set forth on the signature page hereof. No failure to exercise, and no delay in exercising, on the part of Lender or Administrative Agent, any right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right. This Guaranty shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns; provided, however, Guarantor may not assign any of its rights, powers, duties or obligations hereunder. This Guaranty embodies the entire agreement of Guarantor, Lender and Administrative Agent with respect to Guarantor's guaranty of the Guaranteed Obligations and supersedes any and all prior commitments, agreements, representations, and understandings, whether written or oral, relating to the subject matter hereof. There are no oral agreements between Guarantor, Lender and Administrative Agent. If any provision of this Guaranty is held to be illegal, invalid, or unenforceable under present or future laws, such provision shall be fully severable and all other provisions of this Guaranty shall remain in full force and effect. This Guaranty may be amended only by an instrument in writing executed by the party or an authorized representative of the party against whom such amendment is sought to be enforced. If Guarantor consists of more than one Person, the obligations and liabilities of each such Person shall be joint and several. This Guaranty may be executed in counterparts.
13.Intercreditor Agreement. Guarantor hereby acknowledges and agrees that any intercreditor agreement entered into between Administrative Agent and Mezzanine Loan Administrative Agent will be solely for the benefit of Administrative Agent and Mezzanine Loan Administrative Agent, and that none of Guarantor, Borrower, or Mezzanine Borrower shall be third-party beneficiaries (intended or otherwise) of any of the provisions therein, have any rights thereunder, or be entitled to rely on any of the provisions contained therein. Administrative Agent and Mezzanine Loan Administrative Agent have no obligation to disclose to Guarantor the contents of any such intercreditor agreement. Guarantor's obligations hereunder are and will be independent of any such intercreditor agreement and shall remain unmodified by the terms and provisions thereof.
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COMPLETION GUARANTY – Page 9
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EXECUTED as of the day and year first above written.
GUARANTOR: | |||||||||||
NEXPOINT STRATEGIC OPPORTUNITIES FUND, a Delaware statutory trust By: /s/ Xxxxx Xxxxxxx Name: Xxxxx Xxxxxxx Title: President and Principal Executed Officer | |||||||||||
| Address for purposes of notice: NexPoint Strategic Opportunities Fund 000 Xxxxxxxx Xxxxx, Xxxxx 000 Xxxxxx, Xxxxx 00000 Attention: Xxxx XxXxxxxx | |||||
| With a copy to: Xxxx Xxxxxxxx 0000 XxXxxxxx Xxxxxx Xxxxx 000 Xxxxxx, Xxxxx 00000 Attention: X. X. Xxxxxx, Esq. Email: x.x.xxxxxx@xxxxxxxxxxxx.xxx | |||||
[Signatures continued on next page]
COMPLETION GUARANTY – Signature Page
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GUARANTOR: | |||||||||||
HCRE PARTNERS, LLC, a Delaware limited liability company By: /s/ Xxxx XxXxxxxx Name: Xxxx XxXxxxxx Title: Authorized Signatory | |||||||||||
| Address for purposes of notice: HCRE Partners, LLC 000 Xxxxxxxx Xxxxx, Xxxxx 000 Xxxxxx, Xxxxx 00000 Attention: Xxxx XxXxxxxx | |||||
| With a copy to: Xxxx Xxxxxxxx 0000 XxXxxxxx Xxxxxx Xxxxx 000 Xxxxxx, Xxxxx 00000 Attention: X. X. Xxxxxx, Esq. Email: x.x.xxxxxx@xxxxxxxxxxxx.xxx | |||||
COMPLETION GUARANTY – Signature Page
59940-29/Cityplace Tower
