INCREASE AGREEMENT AND AMENDMENT NO. 1
EXHIBIT 99.2
INCREASE AGREEMENT AND AMENDMENT NO. 1
This
Increase Agreement and Amendment No. 1 (this “Agreement”), dated as of
December 20, 2019 (the “Increase Effective
Date”), is by and among HC GOVERNMENT REALTY HOLDINGS,
L.P., a Delaware limited partnership (“Borrower”), certain
Subsidiaries of the Borrower party to the Credit Agreement referred
to below (the “Subsidiary Guarantors”),
HC Government Realty Trust, Inc., a Maryland corporation (the
“Parent
Guarantor”), Holmwood Portfolio Holdings, LLC, a
Delaware limited liability company (“Holmwood”; and together
with the Parent Guarantor and the Subsidiary Guarantors,
collectively the “Guarantors”), KEYBANK
NATIONAL ASSOCIATION (“KeyBank”), as a Lender
(as hereinafter defined) and as administrative agent (in such
capacity, the “Administrative Agent”),
and in its capacity as Swingline Lender and as L/C Issuer, and each
of IberiaBank and Synovus Bank, each of whom is providing a new
commitment on the date hereof. All capitalized terms used herein
without definitions shall have the meanings given to such terms in
the Credit Agreement (as hereinafter defined).
WHEREAS, the Credit Agreement, dated as
of October 22, 2019 (as amended, modified, supplemented or restated
and in effect from time to time, the “Credit Agreement”), is by
and among the Borrower, the Guarantors, the Administrative Agent,
and the financial institutions which are or will become a party
thereto as lenders (each a “Lender” and,
collectively, the “Lenders”);
WHEREAS, Section 2.15 of the Credit
Agreement provides that the Borrower may request, upon notice to
the Administrative Agent and satisfaction of the conditions set
forth in Section 2.15(b) (the “Increase Conditions”),
that the Revolving Commitments under the Credit Agreement may be
increased by an aggregate amount of up to $140,000,000 (as an
addition to the Revolving Commitment of $60,000,000 as in effect on
the Effective Date, for a total of $200,000,000);
WHEREAS, immediately prior to the
effectiveness of this Agreement, the aggregate outstanding
principal amount of the Revolving Commitments is $60,000,000, and
there is $140,000,000 remaining to be exercised under the accordion
provided under Section 2.15 of the Credit Agreement;
WHEREAS, the Borrower has requested that
the Revolving Commitments under the Credit Agreement be increased
by an aggregate amount equal to $40,000,000 (the
“Revolving
Increase”), so that after giving effect to the
Revolving Increase, the aggregate Revolving Commitments will equal
$100,000,000;
WHEREAS, after giving effect to the
Revolving Increase, there will be $100,000,000 remaining to be
exercised under the accordion provided under Section 2.15 of the
Credit Agreement;
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WHEREAS, KeyBank, in its capacity as
Lender, intends to assign a $5,000,000 portion of its Revolving
Commitment to Synovus Bank concurrently with the effectiveness of
this Agreement (the “KeyBank
Assignment”);
WHEREAS, each of IberiaBank and Synovus
Bank, each of whom is providing a new Revolving Commitment on the
date hereof, are each new lenders party to the Credit Agreement
(each an “Augmenting
Lender”, and collectively the “Augmenting
Lenders”);
WHEREAS, Schedule 3 to the Credit
Agreement (Commitment Amounts and Commitment Percentage) will be
updated to reflect Lender Commitments after giving effect to the
Revolving Increase and the KeyBank Assignment, and is attached
hereto as Annex
2;
WHEREAS, the Borrower has notified the
Administrative Agent and the Lenders of its intent to borrow on the
Increase Effective Date an additional aggregate principal amount of
$[______] (the “Increase Effective Date
Borrowing”); and
WHEREAS, the Administrative Agent is
willing to give effect to the Revolving Increase and the amendments
to the Credit Agreement set forth herein provided that the parties
hereto enter into this Agreement.
NOW THEREFORE, the parties hereto hereby
agree as follows:
1. Revolving
Increase; Funding; Assignment of Revolving
Commitment.
(a) Revolving
Increase. Pursuant to Section 2.15 of the Credit Agreement,
each Augmenting Lender hereby severally and not jointly agrees to
provide a Revolving Commitment in the amount set forth next to its
name on Annex 1
attached hereto (the “Revolving Increase
Amount”). The aggregate Revolving Increase, as set
forth in such Annex
1, is equal to $40,000,000.
(b) Funding. As
more fully set forth in Section 2.15 of the Credit Agreement, on
the Increase Effective Date, each Augmenting Lender shall make
available to the Administrative Agent such amounts in immediately
available funds as the Administrative Agent shall determine, for
the benefit of the other Lenders, as being required in order to
cause (after giving effect to the Revolving Increase and the use of
such amounts to make payments to such other Lenders) each
Lender’s portion of the aggregate outstanding Revolving Loans
to equal its Commitment Percentage of such outstanding Revolving
Loans.
(c) Assignment of
Revolving Commitment. Pursuant to Section 13.5 of the Credit
Agreement, KeyBank is assigning a portion of its Revolving
Commitment on the date hereof to Synovus Bank, as more fully set
forth in the Assignment and Acceptance Agreement entered into by
KeyBank and Synovus Bank on the date hereof and as reflected on the
new Schedule 3 attached as Annex 2 hereto.
(d) Loan
Document. On and after the Increase Effective Date, each
reference in the Credit Agreement to “this Agreement,”
“hereunder,” “hereof” or words of like
import referring to the Credit Agreement shall include this
Agreement and this Agreement shall constitute a Loan
Document.
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2. Augmenting
Lender Agreements. Each Augmenting Lender will enter into an
Augmenting Lender Supplement in substantially the form attached to
the Credit Agreement as Exhibit J (an
“Augmenting Lender
Agreement”) on the date hereof.
3. Amendments
to Credit Agreement.
(a) Definition of Requisite
Lenders. The definition of “Requisite Lenders”
set forth in Section 1.1 of the Credit Agreement is hereby amended
and restated in its entirety to read as follows:
“Requisite Lenders” means,
as of any date, (a) at all times when four or fewer Lenders
(excluding Defaulting Lenders) are party to this Agreement, Lenders
having sixty-six and two-thirds percent (66.67%) of the aggregate
amount of the Revolving Commitments or, if all of the Revolving
Commitments have been terminated or reduced to zero, the principal
amount of the aggregate outstanding Revolving Loans and Letter of
Credit Liabilities, or (b) at all other times, Lenders having more
than fifty percent (50.00%) of the aggregate amount of the
Revolving Commitments or, if all of the Revolving Commitments have
been terminated or reduced to zero, the principal amount of the
aggregate outstanding Revolving Loans and Letter of Credit
Liabilities. Revolving Commitments and Letter of Credit Liabilities
held by Defaulting Lenders shall be disregarded when determining
the Requisite Lenders. For purposes of this Requisite Lender
definition, a Lender (other than the Swingline Lender) shall be
deemed to hold a Swingline Loan or a Letter of Credit Liability to
the extent such Lender has acquired a participation
therein.
(b) Schedule 3 (Revolving Commitment
Amount and Commitment Percentage). Schedule 3 to the Credit
Agreement is hereby deleted and replaced with Schedule 3 attached
hereto as Annex 2.
4. Affirmation
and Acknowledgment. Subject to the terms of the Loan
Documents, the Borrower hereby ratifies and confirms all of its
Obligations to the Lenders, including, without limitation, the
Loans, the Notes and the other Loan Documents, and the Borrower
hereby affirms its absolute and unconditional promise to pay to the
Lenders all Obligations under (and as defined in) the Credit
Agreement, both before and after giving effect to this Agreement.
The Guarantors hereby consent to the transactions contemplated by
this Agreement and acknowledge and agree that the guaranties made
by them contained in the Guaranty are, and shall remain, in full
force and effect after giving effect to this Agreement. The
execution, delivery and effectiveness of this Agreement shall not,
except as expressly provided herein, operate as a waiver of any
right, power or remedy of any Lender or the Administrative Agent
under any of the Loan Documents, nor constitute a waiver of any
provision of any of the Loan Documents.
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5. Representations
and Warranties. The Borrower and each of the Guarantors
hereby jointly and severally represent and warrant to the Lenders
as follows:
(a)
The execution,
delivery and performance of this Agreement (including the Revolving
Increase) by the Borrower and each Guarantor (i) are within the
authority of each Loan Party, (ii) have been duly authorized by all
necessary proceedings on the part of such Loan Party and any direct
or indirect general partner or manager thereof, (iii) do not and
will not, by the passage of time, the giving of notice, or both,
(A) require any Governmental Approval or violate any Applicable Law
(including all Environmental Laws) relating to any Loan Party, (B)
conflict with, result in a breach of, constitute a default under,
or require any consent under, the operating agreement and other
organizational documents of any Loan Party, any Management
Agreement, or any indenture, agreement or other instrument to which
any Loan Party or any of their respective Subsidiaries is a party
or by which any of them or any of their respective properties may
be bound (including, in any event, the agreements and other
documents listed on Schedule 7.7 of the Credit
Agreement), or conflict with any judgment, order or decree that is
binding upon Loan Party or any of their respective properties; or
(C) result in or require the creation or imposition of any Lien
upon or with respect to any property now owned or hereafter
acquired by any Loan Party other than Liens created under the Loan
Documents.
(b)
This Agreement
(including the Revolving Increase) and the Credit Agreement and
other Loan Documents constitute legal, valid and binding
obligations of each Loan Party, enforceable against each such Loan
Party in accordance with its respective terms except as the same
may be limited by bankruptcy, insolvency, and other similar laws
affecting the rights of creditors generally and the availability of
equitable remedies for the enforcement of certain obligations
(other than the payment of principal) contained herein or therein
and as may be limited by equitable principles
generally.
(c)
Other than
approvals or consents which have been obtained (written copies of
which have been furnished to the Administrative Agent), the
execution, delivery and performance by the Borrower and Guarantors
of this Agreement (including the Revolving Increase), and the
transactions contemplated hereby, do not require any approval or
consent of, or filing with, any third party or any governmental
agency or authority.
(d)
The representations
and warranties made or deemed made by each Loan Party in the Loan
Documents to which it is a party shall be true and correct in all
material respects (or in all respects to the extent that such
representations and warranties are already subject to concepts of
materiality) on and as of the Increase Effective Date with the same
force and effect as if made on and as of such date except to the
extent that such representations and warranties expressly relate
solely to an earlier date (in which case such representations and
warranties shall have been true and correct in all material
respects on and as of such earlier date). For purposes of this
clause (d), the representations and warranties contained in Section
7.11 of the Credit Agreement shall be deemed to refer to the most
recent statements furnished pursuant to Article IX of the Credit
Agreement.
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(e)
Both immediately
before and immediately after giving effect to this Agreement
(including the Revolving Increase) and the transactions
contemplated hereby, no Default or Event of Default under (and as
defined in) the Credit Agreement has occurred and is
continuing.
6. Conditions
Precedent. This Agreement shall be deemed to be effective as
of the Increase Effective Date, subject to the execution and
delivery of the following documents, each in form and substance
satisfactory to the Administrative Agent and satisfaction of the
additional conditions set forth below:
(a) this Agreement
executed and delivered by the Borrower, the Guarantors, the
Administrative Agent, the Swingline Lender, the L/C Issuer, and the
Augmenting Lenders;
(b)
an amended and
restated Revolving Note issued in favor of KeyBank reflecting the
aggregate principal amount of KeyBank’s Revolving Commitment
immediately following the KeyBank Assignment, and new Revolving
Notes issued in favor of each of IberiaBank and Synovus Bank
reflecting the aggregate principal amount of each such Augmenting
Lender’s Revolving Commitment, in each case substantially in
the form of Exhibit H to the Credit Agreement (collectively, the
“Notes”);
(c)
a certificate dated
as of the date hereof signed by a duly authorized officer of the
Borrower and each Guarantor (i) certifying and attaching the
resolutions adopted by the Borrower’s and each
Guarantor’s general partner (or other appropriate governing
body or Persons) authorizing the transactions described herein and
evidencing the due authorization, execution and delivery of this
Agreement, the Notes and each of the other Loan Documents to which
such Loan Party is a party executed in connection with the
Revolving Increase, (ii) certifying that the organizational
documents of the Borrower and each Guarantor have not been amended,
modified or rescinded since they were last furnished in writing to
the Administrative Agent, and remain in full force and effect as of
the date hereof, (iii) attaching a certificate of good standing or
certificate of similar meaning with respect to such Loan Party
issued as of a recent date by the Secretary of State (or comparable
office) of the state of formation of such Loan Party, (iv)
certifying that, immediately before and immediately after giving
effect to the Revolving Increase, this Agreement, and the
Augmenting Lender Agreement, (A) the representations and warranties
contained in Section 7 of the Credit Agreement and in the other
Loan Documents are true and correct in all material respects (or in
all respects to the extent that such representations and warranties
are already subject to concepts of materiality) on and as of the
Increase Effective Date with the same force and effect as if made
on and as of such date except to the extent that such
representations and warranties expressly relate solely to an
earlier date (in which case such representations and warranties
shall have been true and correct in such respects on and as of such
earlier date) and except that for purposes hereof, the
representations and warranties contained in Section 7.11 of the
Credit Agreement shall be deemed to refer to the most recent
statements furnished pursuant to Article IX of the Credit
Agreement, and (B) no Default or Event of Default
exists;
(d)
an Augmenting
Lender Agreement executed and delivered by each Augmenting Lender
and the other parties thereto;
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(e)
favorable opinions
of counsel to the Borrower and Guarantors acceptable to the
Administrative Agent with respect to, without limitation, this
Agreement, the Revolving Increase and the Notes;
(f)
(g)
payment by the
Borrower in immediately available funds of the fees payable in
connection with the Increase, including those set forth in any fee
letter delivered in connection with this Agreement and as otherwise
provided by the Credit Agreement; and
(h)
the Assignment and
Acceptance Agreement executed and delivered by KeyBank and Synovus
Bank.
7. Miscellaneous
Provisions.
(a) THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS EXECUTED,
AND TO BE FULLY PERFORMED, IN SUCH STATE.
(b)
This Agreement may
be executed in any number of counterparts and by different parties
hereto on separate counterparts, each of which when so executed and
delivered shall be an original, but all of which counterparts taken
together shall be deemed to constitute one and the same instrument.
The existence of this Agreement may be established by the
introduction into evidence of counterparts that are separately
signed, provided they are otherwise identical in all material
respects.
[Remainder of Page Intentionally Blank]
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IN WITNESS WHEREOF, the undersigned have
duly executed this Agreement as of the date first above
written.
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BORROWER:
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HC
GOVERNMENT REALTY HOLDINGS, L.P.
By: HC
Government Realty Trust, Inc., its general partner
By:
/s/ Xxxxxxx
Xxxxxxxxxx
Name:
Xxxxxxx Xxxxxxxxxx
Title:
Chief Financial Officer
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GUARANTORS:
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HOLMWOOD PORTFOLIO HOLDINGS, LLC
By: HC
Government Realty Trust, Inc., its sole member
By: /s/ Xxxxxxx Xxxxxxxxxx
Name: Xxxxxxx
Xxxxxxxxxx
Title:
Chief Financial Officer
By: /s/ Xxxxxxx Xxxxxxxxxx
Name: Xxxxxxx
Xxxxxxxxxx
Title:
Chief Financial Officer
GOV
FBI XXXXXXX CITY, LLC
GOV
CBP CAPE CANAVERAL, LLC
GOV
SILT, LLC
GOV
XXXXX SSA, LLC
GOV
XXXXXX SSA, LLC
GOV
LAKEWOOD DOT, LLC
GOV
FT. XXXXX, LLC
GOV
NORFOLK, LLC
GOV
SAN ANTONIO, LLC
GOV
XXXXXXXXXX, LLC
GOV
KNOXVILLE, LLC
GOV
CHAMPAIGN, LLC
GOV
SARASOTA, LLC
GOV
MONROE, LLC
GOV
OKLAHOMA CITY, LLC
GOV
FT. LAUDERDALE, LLC
GOV
XXXXXXXX LLC
By: HC
Government Realty Holdings, L.P., the member-manager of each of the
foregoing
By: HC
Government Realty Trust, Inc., its general partner
By: /s/
Xxxxxxx Xxxxxxxxxx
Name:
Xxxxxxx Xxxxxxxxxx
Title:
Chief Financial Officer
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AUGMENTING
LENDER:
IBERIABANK, as a
Lender
By:
__/s/ Xxx
XxXxxxxxx
Name:
Xxx XxXxxxxxx
Title:
Senior Vice President
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AUGMENTING
LENDER:
SYNOVUS
BANK, as a Lender
By:
__/s/ Xxxxx X.
Xxxxxx
Name:
Xxxxx X. Xxxxxx
Title:
Director
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ADMINISTRATIVE
AGENT:
KEYBANK
NATIONAL ASSOCIATION, as Administrative Agent
By:
/s/ Xxxxxx X.
Xxxxxxx
Name:
Xxxxxx X. Xxxxxxx
Title:
Assistant Vice President
L/C
ISSUER, SWINGLINE LENDER, AND LENDER:
KEYBANK
NATIONAL ASSOCIATION,
as L/C
Issuer, Swingline Lender and Lender
By:
/s/ Xxxxxx X.
Xxxxxxx
Name:
Xxxxxx X. Xxxxxxx
Title:
Assistant Vice President
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Annex 1
Increase Lender
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Augmenting Lender
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Revolving Commitment
(Portion of Increase)
|
|
IberiaBank
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$25,000,000
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Synovus
Bank
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$15,000,000
|
|
Total
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$40,000,000
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Annex 2
Schedule 3
Commitment
Amounts and Commitment Percentage
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Name of Lender:
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Revolving Commitment Amount
|
Revolving
Commitment Percentage
|
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KeyBank
National Association
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$55,000,000.00
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55.0%
|
|
IberiaBank
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$25,000,000.00
|
25.0%
|
|
Synovus
Bank
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$20,000,000.00
|
20.0%
|
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Total:
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$100,000,000.00
|
100.0%
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