To: Each of the Lenders (collectively, the “Lenders”) which from time to time is a party to the Revolving Credit Agreement dated as of March 11, 2005 (the “Loan Agreement”) among Hartman REIT Operating Partnership, L.P., a Delaware limited partnership...
Exhibit
10.15
XXXXXXX
COMMERCIAL PROPERTIES REIT
GUARANTY
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To:
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Each
of the Lenders (collectively, the “Lenders”) which from time to time is a
party to the Revolving Credit Agreement dated as of March 11, 2005
(the
“Loan Agreement”) among Xxxxxxx REIT Operating Partnership, L.P., a
Delaware limited partnership (“HROP”) and each other Borrower from time to
time party thereto including without limitation Xxxxxxx REIT Operating
Partnership III, L.P., a Texas limited partnership (hereinafter
collectively referred to as the “Borrower”), KeyBank National Association,
individually and as administrative agent for the Lenders (in such
agent
capacity, the “Agent”), and KeyBanc Capital Markets, as Lead Arranger and
Book Manager. Capitalized terms used herein and not otherwise defined
shall have the same meanings as set forth in the Loan
Agreement.
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1. Guaranty
of Payment and Performance of Obligations.
In
consideration of the Lenders’ extending credit or otherwise in their discretion
giving time, financial or banking facilities or accommodations to the Borrower,
Xxxxxxx Commercial Properties REIT, a Maryland real estate investment trust,
Xxxxxxx REIT Operating Partnership III GP LLC, a Texas limited liability company
and Xxxxxxx REIT Operating Partnership III LP LTD, a Texas limited partnerhip
(collectively, the “Guarantor”), hereby absolutely and unconditionally
guarantees to the Agent and each Lender that the Borrower will duly and
punctually pay or perform, at the place specified therefor, or if no place
is
specified, at the Agent’s Head Office, (i) all Obligations (as defined in the
Loan Agreement); and (ii) without limitation of the foregoing, all fees, costs
and expenses incurred by the Agent or the Lenders in attempting to collect
or
enforce any of the foregoing, accrued in each case to the date of payment
hereunder (collectively, the “Obligations” and individually an “Obligation”).
This Guaranty is an absolute, unconditional and continuing guaranty of the
full
and punctual payment and performance by the Borrower of the Obligations and
not
of their collectibility only and is in no way conditioned upon any requirement
that any Lender or the Agent first attempt to collect any of the Obligations
from the Borrower or resort to any security or other means of obtaining payment
of any of the Obligations which any Lender or the Agent now has or may acquire
after the date hereof or upon any other contingency whatsoever. Upon any Event
of Default under (or as defined in) the Loan Agreement, the liabilities and
obligations of the Guarantor hereunder shall, at the option of the Agent, become
forthwith due and payable to the Agent and to the Lender or Lenders owed the
same without demand or notice of any nature, all of which are expressly waived
by the Guarantor. Payments by the Guarantor hereunder may be required by any
Lender or the Agent on any number of occasions.
2. Guarantor’s
Further Agreements to Pay.
The
Guarantor further agrees, as the principal obligor and not as a guarantor only,
to pay to each Lender and the Agent forthwith upon demand, in funds immediately
available to the Lender or the Agent, all costs and expenses (including court
costs and reasonable legal fees and expenses) incurred or expended by the Agent or such Lender in connection with
this Guaranty and
the enforcement hereof, together with interest on amounts recoverable under
this
Guaranty from
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the
time
such amounts become due at a rate per annum equal to two percent (2%) above
the
Base Rate plus the Applicable Base Rate Margin until such amounts shall be
paid
in full (after as well as before judgment). In addition, the Guarantor shall
pay
a late charge equal to five percent (5%) of any such costs and expenses which
are not paid within fifteen (15) days of the date of such demand.
3. Payments.
The
Guarantor covenants and agrees that the Obligations will be paid strictly in
accordance with their respective terms regardless of any law, regulation or
order now or hereinafter in effect in any jurisdiction affecting any of such
terms or the rights of the Agent or any Lender with respect thereto. Without
limiting the generality of the foregoing, the Guarantor’s obligations hereunder
with respect to any Obligation shall not be discharged by a payment in a
currency other than the currency in which the Obligation is denominated (the
“Obligation Currency”) or at a place other than the place specified for the
payment of the Obligation, whether pursuant to a judgment or otherwise, to
the
extent that the amount so paid on conversion to the Obligation Currency and
transferred to Cleveland, Ohio, U.S.A., under normal banking procedures does
not
yield the amount of Obligation Currency due thereunder.
4. Taxes.
All
payments hereunder shall be made without any counterclaim or set-off, free
and
clear of, and without reduction by reason of, any taxes, levies, imposts,
charges and withholdings, restrictions or conditions of any nature (“Taxes”),
which are now or may hereafter be imposed, levied or assessed by any country,
political subdivision or taxing authority on payments hereunder, all of which
will be for the account of and paid by the Guarantor. If for any reason, any
such reduction is made or any Taxes are paid by the Agent or any Lender (except
for taxes on income or profits of such Agent or Lender), Guarantor will pay
to
the Agent or such Lender such additional amounts as may be necessary to ensure
that the Agent or such Lender receives the same net amount which it would have
received had no reduction been made or Taxes paid.
5. Consent
to Jurisdiction.
The
Guarantor agrees that any suit for the enforcement of this Guaranty or any
of
the other Loan Documents may be brought in the courts of the State of Ohio
or
the State of Georgia, or any other court having jurisdiction over the Guarantor,
and consents to the non-exclusive jurisdiction of such court and the service
of
process in any such suit being made upon the Guarantor by mail at the address
specified in Section 15 hereof. The Guarantor hereby waives any objection that
it may now or hereafter have to the venue of any such suit or any such court
or
that such suit is brought in an inconvenient court. In addition to the courts
of
the State of Ohio and the State of Georgia, and any other court having
jurisdiction over the Guarantor, the Agent or any Lender may bring action(s)
for
enforcement on a nonexclusive basis where any collateral exists and the
Guarantor consents to the non-exclusive jurisdiction of such court and the
service of process in any such suit being made upon the Guarantor by mail at
the
address specified in Section 15 hereof. In any such action or proceeding, the
Guarantor hereby absolutely and irrevocably waives personal service of any
summons, complaint, declaration or other process and hereby
absolutely and irrevocably agrees that the service thereof may be made by
certified, registered or recorded first-class airmail directed to the Guarantor.
Anything hereinbefore to the contrary notwithstanding, the Agent or any Lender
may xxx the Guarantor
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in
the
courts of any other country, State of the United States or place where the
Guarantor or any of the property or assets of the Guarantor may be found or
in
any other appropriate jurisdictions.
6. Unlimited
Liability of Guarantor.
The
liability of the Guarantor hereunder shall be unlimited and, as to the
Obligations of the Borrower, shall be joint and several with the liability
of
each other Guarantor and each other party who has guaranteed or who will
guarantee the Obligations of the Borrower. The Agent and each Lender have and
shall have the absolute right to enforce the liability of the Guarantor
hereunder without resort to any other right or remedy including any right or
remedy under any other guaranty, and the release or discharge of any guarantor
of any Obligations shall not affect the continuing liability of the Guarantor
hereunder.
7. Effectiveness.
The
obligations of the Guarantor under this Guaranty shall continue in full force
and effect and shall remain in operation until all of the Obligations shall
have
been paid in full or otherwise be fully satisfied, and continue to be effective
or be reinstated, as the case may be, if at any time payment or other
satisfaction of any of the Obligations is rescinded or must otherwise be
restored or returned upon the bankruptcy, insolvency, or reorganization of
the
Borrower, or otherwise, as though such payment had not been made or other
satisfaction occurred. No invalidity, irregularity or unenforceability by reason
of applicable bankruptcy laws, or any other similar law, or any law or order
of
any government or agency thereof purporting to reduce, amend or otherwise
affect, the Obligations, shall impair, affect, be a defense to or claim against
the obligations of the Guarantor under this Guaranty.
8. Freedom
of Lenders and Agent to Deal with Borrower and Other Parties.
The
Agent and each Lender shall be at liberty, without giving notice to or obtaining
the assent of the Guarantor and without relieving the Guarantor of any liability
hereunder, to deal with the Borrower and with each other party who now is or
after the date hereof becomes liable in any manner for any of the Obligations,
in such manner as the Agent or such Lender in its sole discretion deems fit,
and
to this end, without limiting the right of the Agent or such Lender to so deal
with such party, the Guarantor gives to the Agent and each Lender full authority
in its sole discretion to do any or all of the following things: (a) extend
credit, make loans and afford other financial accommodations to the Borrower
at
such times, in such amounts and on such terms as the Agent or such Lender may
approve, (b) vary the terms and grant extensions of any present or future
indebtedness or obligation of the Borrower or of any other party to the Agent
or
such Lender, (c) grant time, waivers and other indulgences in respect thereto,
(d) vary, exchange, release or discharge, wholly or partially, or delay in
or
abstain from perfecting and enforcing any security or guaranty or other means
of
obtaining payment of any of the Obligations which the Lender now has or may
acquire after the date hereof, (e) accept partial payments from the Borrower
or
any such other party, (f) release or discharge, wholly or partially, any
endorser or guarantor, and (g)
compromise or make any settlement or other arrangement with the Borrower or
any
such other party.
9.
Unenforceability
of Obligations Against Borrower; Invalidity of Security or Other
Guaranties.
If for
any reason any Borrower has no legal existence or is under no legal
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obligation
to discharge any of the Obligations undertaken or purported to be undertaken
by
it or on its behalf, or if any of the moneys included in the Obligations have
become irrecoverable from the Borrower by operation of law or for any other
reason, this Guaranty shall nevertheless be binding on the Guarantor to the
same
extent as if the Guarantor at all times had been the principal debtor on all
such Obligations. This Guaranty shall be in addition to any other guaranty
or
other security for the Obligations, and it shall not be prejudiced or rendered
unenforceable by the invalidity of any such other guaranty or security.
10.
Representation
and Warranties.
The
Guarantor hereby makes, for itself and on behalf of its Subsidiaries, the
representations and warranties contained in Section 7 of the Loan Agreement
that
relate to the Guarantor and/or its Subsidiaries (the “Representation and
Warranties”) as if each such Representation and Warranty were set forth fully
herein, and such Representations and Warranties are hereby incorporated by
reference and shall survive until payment in full of all of the
Obligations.
11.
Covenants.
The
Guarantor hereby covenants that it will, and will cause its Subsidiaries to,
comply with each of the covenants contained in Sections 8, 9 and 10 of the
Loan
Agreement that relate to the Guarantor and its Subsidiaries (the “Covenants”) as
if each such Covenant were fully set forth herein, and such Covenants are
incorporated by reference. In addition, the Guarantor agrees that it will at
all
times be the sole general partner of HROP and that it will not transfer, sell
or
encumber its general partnership interest in HROP.
12.
Representations
True; Covenant Compliance; No Event of Default.
Each of
the Representations and Warranties made by the Guarantor for itself and on
behalf of its Subsidiaries shall be true as of the date as of which it was
made
and shall also be true at and as of the time of the making of each Loan under
the Loan Agreement or the issuance, extension or renewal of each Letter of
Credit under the Loan Agreement, with the same effect as if made at and as
of
that time (except to the extent that such Representations and Warranties relate
expressly to an earlier date).
13.
Waivers
by Guarantor.
The
Guarantor waives: notice of acceptance hereof, notice of any action taken or
omitted by the Agent or any Lender in reliance hereon, and any requirement
that
the Agent or any Lender be diligent or prompt in making demands hereunder,
giving notice of any default by the Borrower or asserting any other rights
of
the Agent or any Lender hereunder. The Guarantor also irrevocably waives, to
the
fullest extent permitted by law, all defenses that at any time may be available
in respect of the Guarantor’s obligations hereunder by virtue of any statute of
limitations, valuation, stay, moratorium law or other similar law now or
hereafter in effect.
14.
Waiver
of Subrogation Rights.
Notwithstanding any other provision to the contrary contained herein or provided
by applicable law and until such time as all Obligations have been indefeasibly
paid in full in cash to the Lenders, the Guarantor hereby irrevocably waives
any
and all rights it may have at any time (whether arising directly or indirectly,
by operation of law or by contract) to assert any claim against the Borrower
on
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account of payments made under this Guaranty or otherwise, including, without limitation, any and all rights of or claim for subrogation, contribution, reimbursement, exoneration and indemnity, and further waives any benefit of and any right to participate in any collateral which may be held by the Agent or any Lender or any affiliate of the Agent or any Lender. Without limitation of the foregoing, in proceedings under applicable bankruptcy laws or insolvency proceedings of any nature, the Guarantor will not prove in competition with the Agent or any Lender in respect of any payment hereunder or be entitled to have the benefit of any counterclaim or proof of claim or dividend or payment by or on behalf of the Borrower or the benefit of any other security for any Obligation which, now or hereafter, the Agent or any Lender may hold or in which it may have any share. In addition, the Guarantor will not claim any set-off or counterclaim against the Borrower in respect of any liability it may have to the Borrower. The payment of any amounts due with respect to any indebtedness of the Borrower now or hereafter held by the Guarantor which arises as a result of the Guarantor’s payment of any sum recoverable hereunder is hereby subordinated to the prior payment in full of the Obligations. The Guarantor agrees that the Guarantor will not demand, xxx for or otherwise attempt to collect any such indebtedness of the Borrower to the Guarantor until the Obligations shall have been paid in full. If, notwithstanding the foregoing sentence, the Guarantor shall collect, enforce or receive any amounts in respect of such indebtedness, such amounts shall be collected, enforced and received by the Guarantor as trustee for the Agent and the Banks and be paid over to the Agent on account of the Obligations without affecting in any manner the liability of the Guarantor under the other provisions of this Guaranty.
15.
Demands
and Notices.
Any
demand on or notice to the Guarantor made or required to be given pursuant
to
this Guaranty shall be in writing and shall be delivered in hand, mailed by
United States registered or certified first class mail, postage prepaid, sent
by
overnight courier, or sent by telegraph, telecopy, telefax or telex and
confirmed by delivery via courier or postal service, addressed as
follows:
(a) if
to the
Guarantor, at Xxxxxxx Commercial Properties REIT, 0000 Xxxx Xxx Xxxxxxx Xxxxxxx
Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000, Attention: Xxxxx X. Xxxxxxx, with a
copy
to General Counsel 0000 Xxxx Xxx Xxxxxxx Xxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx,
Xxxxx 00000xx at such other address for notice as the Guarantor shall last
have
furnished in writing to the person giving the notice; and
(b) if
to the
Agent, to 0000 Xxxxxxxxx Xxxx XX, Xxxxx 0000, Xxxxxxx, Xxxxxxx 00000, attention:
Xxxxxxxx Xxxx, Vice President (facsimile: (000) 000-0000), [with a copy to
____________, KeyBank National Association, 000 Xxxxxx Xxxxxx, Xxxxxxxxx, XX
00000], or such other address for notice as the Agent shall have last furnished
in writing to the person giving the notice, with a copy
to
Xxxxxx X. XxxXxxxxx, Esq., Goulston & Storrs, 000 Xxxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000-0000 (facsimile: (000) 000-0000), or at such other address
for notice as the Agent shall last have furnished in writing to the person
giving the notice; and
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(c) if
to any
Lender, at such Lender’s address set forth on Schedule 2 to the Loan Agreement,
or such other address for notice as such Lender shall have last furnished in
writing to the Person giving the notice.
Any
such
notice or demand shall be deemed to have been duly given or made and to have
become effective (i) if delivered by hand, overnight courier or facsimile to
the
party to which it is directed, at the time of the receipt thereof by such party
or the sending of such facsimile and (ii) if sent by registered or certified
first-class mail, postage prepaid, on the third Business Day following the
mailing thereof.
16.
Amendments,
Waivers, Etc.
No
provision of this Guaranty can be changed, waived, discharged or terminated
except by an instrument in writing signed by the Agent and the Guarantor
expressly referring to the provision of this Guaranty to which such instrument
relates; and no such waiver shall extend to, affect or impair any right with
respect to any Obligation which is not expressly dealt with therein. No course
of dealing or delay or omission on the part of the Agent or the Lenders or
any
of them in exercising any right shall operate as a waiver thereof or otherwise
be prejudicial thereto.
17.
Set-off.
Regardless of the adequacy of any collateral or other means of obtaining
repayment of the Obligations, each Lender and the Agent may at any time and
without notice to the Guarantor set off the whole or any portion or portions
of
any or all such deposits and other sums credited by or due from such Lender
or
the Agent to the Guarantor or subject to withdrawal by the Guarantor against
amounts payable under this Guaranty, whether or not any other person or persons
could also withdraw money therefrom. Any deposits or other sums which may at
any
time be credited to the Guarantor by or due to it from any Lender may at any
time be applied to or set off by such Lender against the Guarantor’s obligations
hereunder. The Guarantor irrevocably invites each financing institution which
may consider becoming a Lender to rely on the provisions contained in this
Section 17 as making the Lender a creditor of the Guarantor and agrees that
its
becoming a Lender shall constitute an acceptance of the offer hereby
made.
18.
Agent;
Application of Funds.
This
Guaranty has been delivered to the Agent and the Agent has been authorized
to
enforce this Guaranty on behalf of each of the Lenders pursuant to the Loan
Documents. All payments by the undersigned pursuant to this Guaranty shall
be
made to the Agent for the ratable benefit of the Lenders and the Agent and,
after the payment of all expenses as provided in this Guaranty, shall be applied
to the payment of the Obligations until the same are paid in full.
19.
Further
Assurances.
The
Guarantor at its sole cost and expense agrees to do all such things and execute,
acknowledge and deliver all such documents and instruments as the
Agent
from time to time may reasonably request in order to give full effect to this
Guaranty and to perfect and preserve the rights and powers of the Agent and
the
Lenders hereunder.
20.
Miscellaneous
Provisions.
This
Guaranty is intended to take effect as a sealed instrument to be governed
by and
construed in accordance with the laws of the State of Ohio and shall inure
to
the benefit of the Agent, each Lender and its respective successors
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in
title
and assigns, and shall be binding on the Guarantor and the Guarantor’s
successors in title, assigns and legal representatives. The rights and remedies
herein provided are cumulative and not exclusive of any remedies provided by
law
or any other agreement. The invalidity or unenforceability of any one or more
sections of this Guaranty shall not affect the validity or enforceability of
its
remaining provisions. Captions are for ease of reference only and shall not
affect the meaning of the relevant provisions. The meanings of all defined
terms
used in this Guaranty shall be equally applicable to the singular and plural
forms of the terms defined.
21.
WAIVER
OF JURY TRIAL.
THE
GUARANTOR HEREBY IRREVOCABLY WAIVES TRIAL BY JURY IN ANY JURISDICTION AND IN
ANY
COURT WITH RESPECT TO, IN CONNECTION WITH, OR ARISING OUT OF THIS GUARANTY,
THE
OBLIGATIONS, THE LOAN DOCUMENTS, OR ANY OTHER INSTRUMENT OR DOCUMENT DELIVERED
PURSUANT HERETO OR THERETO OR ANY OTHER CLAIM OR DISPUTE HOWSOEVER ARISING,
AMONG THE GUARANTOR, THE BORROWER, THE AGENT AND/OR THE LENDERS. THIS WAIVER
OF
JURY TRIAL SHALL BE EFFECTIVE FOR EACH AND EVERY DOCUMENT EXECUTED BY THE
GUARANTOR, THE AGENT OR THE LENDERS AND DELIVERED TO THE AGENT OR THE LENDERS,
AS THE CASE MAY BE, WHETHER OR NOT SUCH DOCUMENTS SHALL CONTAIN SUCH A WAIVER
OF
JURY TRIAL. EXCEPT TO THE EXTENT EXPRESSLY PROHIBITED BY LAW, THE GUARANTOR
HEREBY WAIVES ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY LITIGATION
REFERRED TO IN THE PRECEDING SENTENCE ANY SPECIAL, EXEMPLARY, PUNITIVE OR
CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL
DAMAGES, INCLUDING ANY DAMAGES PURSUANT TO M.G.L. C. 93A ET SEQ. THE GUARANTOR
(A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY LENDER OR THE
AGENT HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH LENDER OR THE AGENT
WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS
AND
(B) ACKNOWLEDGES THAT THE AGENT AND THE LENDERS HAVE BEEN INDUCED TO ENTER
INTO
THE LOAN AGREEMENT AND THE OTHER LOAN DOCUMENTS TO WHICH THEY ARE PARTIES BY,
AMONG OTHER THINGS, THE WAIVERS AND CERTIFICATIONS CONTAINED HEREIN. THE
GUARANTOR CONFIRMS THAT THE FOREGOING WAIVERS ARE INFORMED AND FREELY
MADE.
[remainder
of page intentionally blank]
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[Signature
page to Guaranty]
IN
WITNESS WHEREOF, the Guarantor has executed this Guaranty as of the 11th day
of
March, 2005.
GUARANTOR:
XXXXXXX COMMERCIAL PROPERTIES REIT,
a Maryland real estate investment trust
By: /s/ Xxxxx X.
Xxxxxxx
Xxxxx
X.
Xxxxxxx, President
GUARANTOR:
XXXXXXX
REIT OPERATING PARTNERSHIP III GP LLC,
a
Texas limited liability company
By:
Xxxxxxx REIT Operating Partnership, L.P.,
a
Delaware limited partnership,
Its
Sole Member
By: Xxxxxxx Commercial Properties REIT,
a
Maryland real estate investment trust,
Its
sole General Partner
By:
/s/ Xxxxx X.
Xxxxxxx
Xxxxx X. Xxxxxxx, President
GUARANTOR:
XXXXXXX
REIT OPERATING PARTNERSHIP III LP LTD,
a
Texas
limited partnership
By:
Xxxxxxx REIT Operating Partnership III GP LLC
a
Texas
limited liability company
Its
sole
General Partner
By: Xxxxxxx REIT Operating Partnership,
L.P.,
a
Delaware limited partnership,
Its
sole
member
By: Xxxxxxx Commercial Properties REIT,
a
Maryland real estate investment trust,
Its
sole General Partner
By: /s/ Xxxxx X.
Xxxxxxx
Xxxxx
X.
Xxxxxxx, President
