GUARANTY AGREEMENT
Exhibit 6.3
WHEREAS, the
execution of this Guaranty Agreement, dated as of March 19, 2019,
is a condition to the lenders party to the Loan Agreement referred
to below (the “Lenders”) making certain
loans to HC GOVERNMENT REALTY HOLDINGS, L.P., a Delaware limited
partnership (“Borrower”), pursuant to
that certain Loan Agreement dated as of the date hereof, between
Borrower, the Lenders and HCM AGENCY, LLC, in its capacity as
collateral agent (the “Agent”) (such Loan
Agreement as it may hereafter be amended, restated, supplemented or
modified from time to time, is hereinafter referred to as the
“Loan
Agreement”). Capitalized terms used but not defined
herein are used as defined in the Loan Agreement
NOW,
THEREFORE, for valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the undersigned (each a
“Guarantor”; collectively,
the “Guarantors”), hereby
irrevocably and unconditionally guarantee to Lenders and the Agent
the full and prompt payment and performance of the Guaranteed
Indebtedness (hereinafter defined).
This
Guaranty Agreement shall be upon the following terms:
I. The
term “Guaranteed Indebtedness”, as used herein means
all of the “Obligations”, as defined in the Loan
Agreement. The term “Guaranteed Indebtedness” shall
include any and all post-petition interest and expenses (including
reasonable attorneys’ fees) whether or not allowed under any
bankruptcy, insolvency, or other similar law. As of the date of
this Guaranty Agreement, the Obligations include, but are not
limited to, the Loans evidenced by the Notes and all renewals,
extensions, amendments, increases, decreases or other modifications
of any of the foregoing and all promissory notes given in renewal,
extension, amendment, increase, decrease or other modification
thereof.
II. This
instrument shall be an absolute, continuing, irrevocable, and
unconditional guaranty of payment and performance, and not a
guaranty of collection, and each Guarantor shall remain liable on
its obligations hereunder until the payment and performance in full
of the Guaranteed Indebtedness. No set-off, counterclaim,
recoupment, reduction, or diminution of any obligation, or any
defense of any kind or nature which Borrower may have against Agent
or Lenders or any other party, or which any Guarantor may have
against Borrower, Agent, Lenders, or any other party, shall be
available to, or shall be asserted by, such Guarantor against Agent
or Lenders or any subsequent holder of the Guaranteed Indebtedness
or any part thereof or against payment of the Guaranteed
Indebtedness or any part thereof.
III. If
any Guarantor becomes liable for any indebtedness owing by Borrower
to Agent or Lenders by endorsement or otherwise, other than under
this Guaranty Agreement, such liability shall not be in any manner
impaired or affected hereby, and the rights of Agent or Lenders
hereunder shall be cumulative of any and all other rights that
Agents or Lenders may ever have against such Guarantor. The
exercise by Agent or Lenders of any right or remedy hereunder or
under any other instrument, or at law or in equity, shall not
preclude the concurrent or subsequent exercise of any other right
or remedy.
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IV. In
the event of default by Borrower in payment or performance of the
Guaranteed Indebtedness, or any part thereof, when such Guaranteed
Indebtedness becomes due, whether by its terms, by acceleration, or
otherwise, Guarantors shall promptly pay the amount due thereon to
each Lender without notice or demand in lawful currency of the
United States of America and it shall not be necessary for Agent or
Lenders (or the Required Lenders), in order to enforce such payment
by each Guarantor, first to institute suit or exhaust its remedies
against Borrower or others liable on such Guaranteed Indebtedness,
or to enforce any rights against any collateral which shall ever
have been given to secure such Guaranteed Indebtedness. Until the
Guaranteed Indebtedness is paid in full, to the fullest extent
permitted by applicable law, each Guarantor waives any and all
rights it may now or hereafter have under any agreement or at law
or in equity (including, without limitation, any law subrogating
such Guarantor to the rights of Agent or Lenders) 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 Indebtedness for any
payment made by any Guarantor under or in connection with this
Guaranty Agreement or otherwise.
V. If
acceleration of the time for payment of any amount payable by
Borrower under the Guaranteed Indebtedness is stayed upon the
insolvency, bankruptcy, or reorganization of Borrower, all such
amounts otherwise subject to acceleration under the terms of the
Guaranteed Indebtedness shall nonetheless be payable by Guarantors
hereunder forthwith on written demand by the Required
Lenders.
VI. Each
Guarantor hereby agrees that its obligations under this Guaranty
Agreement shall not be released, discharged, diminished, impaired,
reduced, or affected for any reason or by the occurrence of any
event, including, without limitation, one or more of the following
events, whether or not with notice to or the consent of Guarantors:
(a) the taking or accepting of collateral as security for any or
all of the Guaranteed Indebtedness or the release, surrender,
exchange, or subordination of any collateral now or hereafter
securing any or all of the Guaranteed Indebtedness; (b) any partial
release of the liability of any Guarantor hereunder, or the full or
partial release of any other guarantor or obligor from liability
for any or all of the Guaranteed Indebtedness; (c) any disability
of Borrower, or the dissolution, insolvency, or bankruptcy of
Borrower, any Guarantor, or any other party at any time liable for
the payment of any or all of the Guaranteed Indebtedness; (d) any
renewal, extension, modification, waiver, amendment, or
rearrangement of any or all of the Guaranteed Indebtedness or any
instrument, document, or agreement evidencing, securing, or
otherwise relating to any or all of the Guaranteed Indebtedness;
(e) any adjustment, indulgence, forbearance, waiver, or compromise
that may be granted or given by Agent or Lenders to Borrower, any
Guarantor, or any other party ever liable for any or all of the
Guaranteed Indebtedness; (f) any neglect, delay, omission, failure,
or refusal of Agent or Lenders to take or prosecute any action for
the collection of any of the Guaranteed Indebtedness or to
foreclose or take or prosecute any action in connection with any
instrument, document, or agreement evidencing, securing, or
otherwise relating to any or all of the Guaranteed Indebtedness;
(g) the unenforceability or invalidity of any or all of the
Guaranteed Indebtedness or of any instrument, document, or
agreement evidencing, securing, or otherwise relating to any or all
of the Guaranteed Indebtedness; (h) any payment by Borrower or any
other party to Agent or Lenders is held to constitute a preference
under applicable bankruptcy or insolvency law or if for any other
reason Agent or Lenders are required to refund any payment or pay
the amount thereof to someone else; (i) the settlement or
compromise of any of the Guaranteed Indebtedness; (j) the
non-perfection of any security interest or lien securing any or all
of the Guaranteed Indebtedness; (k) any impairment of any
collateral securing any or all of the Guaranteed Indebtedness; (l)
the failure of Agent to sell any collateral securing any or all of
the Guaranteed Indebtedness in a commercially reasonable manner or
as otherwise required by law; (m) any change in the corporate
existence, structure, or ownership of Borrower; or (n) any other
circumstance which might otherwise constitute a defense available
to, or discharge of, Borrower or any Guarantor.
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VII. Each
Guarantor represents and warrants to Agent and Lenders as set forth
below:
(1) Each
Guarantor is a limited liability company or corporation, as
applicable, duly organized, validly existing and in good standing
under the laws of the state of its organization, is qualified to do
business in all jurisdictions in which the nature of the business
conducted by it makes such qualification necessary (except where
failure to so qualify would not have a Material Adverse
Effect).
(2) Each
Guarantor has the limited liability company or corporate power, as
applicable, authority and legal right to execute, deliver, and
perform its obligations under this Guaranty Agreement and this
Guaranty Agreement constitutes the legal, valid, and binding
obligation of such Guarantor, enforceable against such Guarantor in
accordance with its terms, except as enforceability thereof may be
limited by bankruptcy, insolvency, or other laws of general
application relating to the enforcement of creditor’s
rights.
(3) The
execution, delivery, and performance by each Guarantor of this
Guaranty Agreement have been duly authorized by all requisite
action on the part of such Guarantor and do not and will not
violate or conflict with the Organizational Documents of such
Guarantor or any law, rule, or regulation or any order, writ,
injunction or decree of any court, governmental authority, or
arbitrator, and do not and will not conflict with, result in a
breach of, or constitute a default under, or result in the
imposition of any lien upon any of the revenues or assets of such
Guarantor pursuant to the provisions of any indenture, mortgage,
deed of trust, security agreement, franchise, permit, license, or
other instrument or agreement by which such Guarantor or its
properties is bound.
(4) No
authorization, approval, or consent of, and no filing or
registration with, any court, governmental authority, or third
party is necessary for the execution, delivery or performance by
such Guarantor of this Guaranty Agreement or the validity or
enforceability thereof, or, if any authorization, approval or
consent is necessary, such authorization, approval or consent has
been obtained or made on or prior to the date hereof.
(5) To
the best of Guarantor’s knowledge and belief, the value of
the consideration received and to be received by such Guarantor as
a result of Borrower, Agent and Lenders entering into the Loan
Agreement and such Guarantor executing and delivering this Guaranty
Agreement is reasonably worth at least as much as the liability and
obligation of such Guarantor hereunder, and such liability and
obligation and the Loan Agreement have benefitted and may
reasonably be expected to benefit such Guarantor directly or
indirectly.
(6) Such
Guarantor, together with Borrower and each other Guarantor (as
defined in the Loan Agreement) on a consolidated basis, both before
and after execution and performance of this Guaranty Agreement and
the other Loan Documents and the documents evidencing other
permitted indebtedness of the Credit Parties, (i) is not insolvent
and (ii) its liabilities do not exceed its assets.
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(7) Neither
Guarantor (i) has engaged in any
material business or activities, or entered into, executed or
performed any material agreement, arrangement, instrument or transaction, (ii)
owns any material property (other than Equity Interests of
the Borrower and, indirectly, the Borrower’s
Subsidiaries), (iii) has incurred any
indebtedness, or (iv) has granted any Liens in any of its property, in each case, other than
(A) entering into and performing its obligations under this
Guaranty Agreement and the Loan Documents to which it is a party,
(B) undertaking activities incidental to its status as a holding
company, (C) incurring and discharging limited liability company or
corporate and administrative overhead, costs and expenses relating
to maintenance of its existence or otherwise relating to the
business of its Subsidiaries in accordance with the Loan Documents,
(D) issuing, selling and redeeming its own Equity Interests,
subject to the terms of this Agreement, (E) holding directors and
members’ meetings and (F) as specifically contemplated by the
Loan Agreement.
VIII. Each
Guarantor covenants and agrees that, until Payment in Full, such
Guarantor will observe the covenants set forth below:
(1) Each
Guarantor will furnish promptly to Agent and Lenders written notice
of the occurrence of any default under this Guaranty Agreement or
any Event of Default of which such Guarantor has
knowledge.
(2) Each
Guarantor will furnish promptly to Agent and Lenders such
additional information concerning such Guarantor as Agent or a
Lender may reasonably request.
(3) Each
Guarantor will comply with all of the covenants contained in the
Loan Agreement with which Borrower agrees in the Loan Agreement to
cause such Guarantor to comply, as if such Guarantor were a party
to the Loan Agreement, and all of such covenants are incorporated
herein by reference as if set forth herein in full.
(4) Neither
Guarantor shall (i) engage in any
material business or activities, or enter into, execute or perform
any material agreement,
arrangement, instrument or transaction, (ii) own any material
property (other than Equity Interests of the Borrower and,
indirectly, the Borrower’s Subsidiaries), (iii) incur any indebtedness, or (iv) grant any
Liens in any of its property, in each case, other than (A) entering
into and performing its obligations under this Guaranty Agreement
and the Loan Documents to which it is a party, (B) undertaking
activities incidental to its status as a holding company, (C)
incurring and discharging limited liability company or corporate
and administrative overhead, costs and expenses relating to
maintenance of its existence or otherwise relating to the business
of its Subsidiaries in accordance with the Loan Documents, (D)
issuing, selling and redeeming its own Equity Interests, subject to
the terms of this Guaranty Agreement and the Loan Agreement, (E)
holding directors and members’ meetings or (F) as
specifically contemplated by the Loan Agreement or otherwise
consented to by the Required Lenders.
(5) HC
Government Realty Trust, Inc., a Maryland corporation and
Guarantor, shall use its commercially reasonable efforts to
maintain its status as a “real estate investment trust”
in compliance with all applicable provisions under the Internal
Revenue Code relating to such status.
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IX. Upon
the occurrence and during the continuance of an Event of Default,
Agent and each Lender shall have the right to set off and apply
against this Guaranty Agreement or the Guaranteed Indebtedness or
both, at any time and without notice to any Guarantor, any and all
deposits (general or special, time or demand, provisional or final)
or other sums at any time credited by or owing from Agent or such
Lender to any Guarantor whether or not the Guaranteed Indebtedness
is then due and irrespective of whether or not Agent or such Lender
shall have made any demand under this Guaranty Agreement. The
rights and remedies of Agent and Lenders hereunder are in addition
to other rights and remedies (including, without limitation, other
rights of setoff) which they may have.
X. Each
Guarantor hereby agrees that the Subordinated Indebtedness (as
hereinafter defined) shall be subordinate and junior in right of
payment to the prior payment in full of all Guaranteed
Indebtedness, and each Guarantor hereby assigns the Subordinated
Indebtedness to Agent and Lenders as security for the Guaranteed
Indebtedness. If any sums shall be paid to any Guarantor by
Borrower or any other person or entity on account of the
Subordinated Indebtedness, such sums shall be held in trust by such
Guarantor for the benefit of Agent and the Lenders and shall
forthwith be paid to Agent without affecting the liability of such
Guarantor under this Guaranty Agreement. For purposes of this
Guaranty Agreement, the term “Subordinated
Indebtedness” means all indebtedness, liabilities, and
obligations of Borrower or any Subsidiary to each Guarantor,
whether such indebtedness, liabilities, and obligations now exist
or are hereafter incurred or arise, or whether the obligations of
Borrower or such Subsidiary thereon are direct, indirect,
contingent, primary, secondary, several, joint and several, or
otherwise, and irrespective of the person or persons in whose favor
such indebtedness, obligations, or liabilities may, at their
inception, have been, or may hereafter be created, or the manner in
which they have been or may hereafter be acquired by any
Guarantor.
XI. No
amendment or waiver of any provision of this Guaranty Agreement or
consent to any departure by any Guarantor therefrom shall in any
event be effective unless the same shall be in writing and signed
by such Guarantor and the Required Lenders. No failure on the part
of Agent or Lenders to exercise and no delay in exercising, and no
course of dealing with respect to, any right, power, or privilege
hereunder shall operate as a waiver thereof; nor shall any single
or partial exercise of any right, power, or privilege hereunder
preclude any other or further exercise thereof or the exercise of
any other right, power, or privilege. The rights and remedies
herein provided are cumulative and not exclusive of any rights and
remedies provided by law.
XII. This
Guaranty Agreement is for the benefit of Agent and Lenders and
their successors and assigns, and in the event of an assignment of
the Guaranteed Indebtedness, or any part thereof, the rights and
benefits hereunder, to the extent applicable to the indebtedness so
assigned, may be transferred with such indebtedness. This Guaranty
Agreement is binding not only on each Guarantor, but on each
Guarantor’s successors and assigns.
XIII. Each
Guarantor recognizes that Agent and Lenders are relying upon this
Guaranty Agreement and the undertakings of such Guarantor hereunder
in making extensions of credit to Borrower under the Loan Agreement
and further recognizes that the execution and delivery of this
Guaranty Agreement is a material inducement to Agent and Lenders in
entering into the Loan Agreement. Each Guarantor hereby
acknowledges that there are no conditions to the full effectiveness
of this Guaranty Agreement.
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XIV. This
Guaranty Agreement shall be governed by and construed in accordance
with the laws of the State of New York and the applicable laws of
the United States of America. Any action or proceeding against any
Guarantor under or in connection with this Guaranty Agreement may
be brought in any federal court of competent jurisdiction in the
Southern District of New York and in any state court sitting in New
York, New York, and each Guarantor hereby irrevocably submits to
the nonexclusive jurisdiction of such courts, and waives any
objection it may now or hereafter have as to the venue of any such
action or proceeding brought in such court. Each Guarantor agrees
that service of process upon it may be made by certified or
registered mail, return receipt requested, at its address specified
in the Loan Agreement. Nothing herein shall affect the right of the
Agent or Lenders to serve process in any other manner permitted by
law or shall limit the right of Agent or Lenders to bring any
action or proceeding against any Guarantor or with respect to any
of a Guarantor’s property in courts in other jurisdictions.
Any action or proceeding by any Guarantor against Agent or Lenders
shall be brought only in a federal court of competent jurisdiction
in the Southern District of New York or in any state court sitting
in New York, New York.
XV. Each
Guarantor shall pay all reasonable and documented out-of-pocket
attorneys’ fees and all other reasonable and documented
out-of-pocket costs and expenses incurred by Agent or Lenders in
connection with the preparation, administration, amendment,
enforcement, or collection of this Guaranty Agreement.
XVI. To
the fullest extent permitted by applicable law, each Guarantor
hereby waives promptness, diligence, notice of any default under
the Guaranteed Indebtedness, demand for payment, notice of
acceptance of this Guaranty Agreement, presentment, notice of
protest, notice of dishonor, notice of the incurring by Borrower of
additional indebtedness, and all other notices and demands with
respect to the Guaranteed Indebtedness and this Guaranty
Agreement.
XVII. Lenders
and Agent may exercise any and all rights granted to them under the
Loan Agreement and the other Loan Documents without affecting the
validity or enforceability of this Guaranty Agreement. Any notices
given hereunder shall be given in the manner provided by and to the
addresses set forth in the Loan Agreement (and any notice to the
Guarantor shall be provided care of the Borrower).
XVIII. Each
Guarantor hereby represents and warrants to Agent and Lenders that
such Guarantor has adequate means to obtain from Borrower on a
continuing basis information concerning the financial condition and
assets of Borrower and that such Guarantor is not relying upon
Agent or Lenders to provide (and neither Agent or Lenders shall
have any duty to provide) any such information to such Guarantor
either now or in the future.
XIX. Each
Guarantor understands and agrees that (a) Agent and Lenders’
document retention policy involves the imaging of executed loan
documents and the destruction of the paper originals, and (b) each
Guarantor waives any right that it may have to claim that the
imaged copies of the Loan Documents are not originals.
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XX. EACH
GUARANTOR, AGENT AND LENDERS (BY THEIR ACCEPTANCE HEREOF) HEREBY
VOLUNTARILY, KNOWINGLY, IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY
RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE (WHETHER
BASED ON CONTRACT, TORT, OR OTHERWISE) BETWEEN ANY GUARANTOR AND
AGENT OR LENDERS ARISING OUT OF OR IN ANY WAY RELATED TO THIS
GUARANTY AGREEMENT, THE OTHER LOAN DOCUMENTS OR ANY RELATIONSHIP
BETWEEN ANY GUARANTOR, AGENT AND/OR LENDERS. THIS PROVISION IS A
MATERIAL INDUCEMENT TO AGENT AND LENDERS TO PROVIDE THE FINANCING
EVIDENCED BY THE LOAN AGREEMENT AND THE LOAN
DOCUMENTS.
XXI. THIS
GUARANTY AGREEMENT EMBODIES THE FINAL, ENTIRE AGREEMENT OF EACH
GUARANTOR, AGENT AND LENDERS WITH RESPECT TO SUCH GUARANTOR’S
GUARANTY OF THE GUARANTEED INDEBTEDNESS AND SUPERSEDES ANY AND ALL
PRIOR COMMITMENTS, AGREEMENTS, REPRESENTATIONS, AND UNDERSTANDINGS,
WHETHER WRITTEN OR ORAL, RELATING TO THE SUBJECT MATTER HEREOF AND
MAY NOT BE CONTRADICTED OR VARIED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS OR
OTHER EXTRINSIC EVIDENCE OF ANY NATURE. THERE ARE NO ORAL
AGREEMENTS BETWEEN ANY GUARANTOR, AGENT AND/OR LENDERS. THIS
GUARANTY AGREEMENT MAY NOT BE AMENDED EXCEPT IN WRITING BY EACH
GUARANTOR AND THE REQUIRED LENDERS.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]
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DATED
and EFFECTIVE as of the day and year first written
above.
GUARANTORS:
HOLMWOOD PORTFOLIO
HOLDINGS, LLC, a Delaware limited liability company
By:
/s/ Xxxxxx X. Xxxxxx, Xx.
Name:
Xxxxxx X. Xxxxxx, Xx.
Title:
President
a
Maryland corporation
By:
/s/ Xxxxxx X. Xxxxxx, Xx.
Name:
Xxxxxx X. Xxxxxx, Xx.
Title:
President
signature page to holding company guaranty agreement
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