UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): November 30, 2021 |
AMERICA FIRST MULTIFAMILY INVESTORS, L.P.
(Exact name of Registrant as Specified in Its Charter)
Delaware |
000-24843 |
47-0810385 |
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(State or Other Jurisdiction
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(Commission File Number) |
(IRS Employer
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14301 FNB Parkway, Suite 211 |
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Omaha, Nebraska |
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68154 |
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(Address of Principal Executive Offices) |
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(Zip Code) |
Registrant’s Telephone Number, Including Area Code: 402 952-1235 |
Not Applicable |
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
Securities registered pursuant to Section 12(b) of the Act:
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Trading
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Beneficial Unit Certificates representing assignments of limited partnership interests in America First Multifamily Investors, L.P. |
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ATAX |
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The NASDAQ Stock Market LLC |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§ 230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§ 240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 1.01 Entry into a Material Definitive Agreement.
First Amendment to Credit Agreement
On November 30, 2021, America First Multifamily Investors, L.P. (the “Partnership”) entered into a First Amendment to Credit Agreement (the “First Amendment”) with BankUnited, N.A. and Bankers Trust Company (collectively, the “Lenders”), and the sole lead arranger and administrative agent, BankUnited, N.A. (the “Administrative Agent”) which modified certain provisions of the Credit Agreement dated June 11, 2021 (as amended, the “Amended Credit Agreement”). The First Amendment modified the definition of “Guarantor” to replace references to “Greystone Select Holdings LLC” with references to “Greystone Select Incorporated,” reflecting the replacement of the guarantor under the guaranty agreement described below.
Amended and Restated Guaranty Agreement
On November 30, 2021, an affiliate of the Partnership, Greystone Select Incorporated (“Greystone Select”), entered into an Amended and Restated Guaranty with the Administrative Agent (the “Amended Guaranty”) whereby Greystone Select replaced the original guarantor, and as a result Greystone Select now will guaranty amounts due from the Partnership under the Credit Agreement and the Notes dated June 11, 2021 between the Partnership and each of the Lenders. The Amended Guaranty amends, restates and supersedes the original Guaranty between Greystone Select Holdings LLC and the Administrative Agent dated June 11, 2021 in its entirety and Greystone Select Holdings LLC is released from its obligations under the original Guaranty. The substantive terms of the Amended Guaranty do not materially differ from the terms of the original Guaranty.
The Amended Guaranty is enforceable upon the occurrence of (i) an event of default; (ii) the Administrative Agent taking certain actions in relation to the collateral pledged under the Amended Credit Agreement; and (iii) the amounts due under the Amended Credit Agreement are not collected within a certain period of time after the commencement of such actions. The Partnership has an indirect interest in the Amended Guaranty but is not a party to the Amended Guaranty. Greystone Select is subject to financial covenants under the Amended Guaranty related to minimum consolidated liquidity, minimum consolidated tangible net worth and certain changes in consolidated tangible net worth over certain time periods.
The foregoing descriptions of the First Amendment and Amended Guaranty are summaries and are qualified in their entirety by reference to the full text of the First Amendment and Amended Guaranty, copies of which are attached as Exhibit 10.1 and 10.2, respectively, to this Current Report on Form 8-K and incorporated by reference herein.
In addition, the full text of the Credit Agreement, Note dated June 11, 2021 between the Partnership and payable to BankUnited, N.A., and Note dated June 11, 2021 between the Partnership and payable to Bankers Trust Company, which were attached as Exhibits 10.1, 10.2 and 10.3, respectively to the Current Report on Form 8-K filed by the Partnership with the Securities and Exchange Commission (“SEC”) on June 14, 2021, are incorporated by reference herein.
Forward-Looking Statements
Information contained in this Current Report on Form 8-K contains “forward-looking statements,” including but not limited to statements related to the Credit Agreement, Notes, Amended Guaranty, and use of the financing proceeds, which are based on current expectations, forecasts, and assumptions that involve risks and uncertainties that could cause actual outcomes and results to differ materially. These risks and uncertainties include, but are not limited to, risks involving fluctuations in short-term interest rates, collateral valuations, bond investment valuations, current maturities of our financing arrangements and our ability to renew or refinance such maturities, and overall economic and credit market conditions. For a further list and description of such risks, see the reports and other filings made by the Partnership with the Securities and Exchange Commission, including its Annual Report on Form 10-K for the year ended December 31, 2020. The Partnership disclaims any intention or obligation to update or revise any forward-looking statements, whether as a result of new information, future events, or otherwise.
Item 9.01 Financial Statements and Exhibits.
(a) Not applicable.
(b) Not applicable.
(c) Not applicable.
(d) Exhibits.
Exhibit Number |
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Description |
10.1 |
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10.2 |
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10.3 |
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10.4 |
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10.5 |
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104 |
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Cover Page Interactive Data File (embedded within the Inline XBRL document) |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
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AMERICA FIRST MULTIFAMILY INVESTORS, L. P. |
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Date: |
December 6, 2021 |
By: |
/s/ Jesse A. Coury |
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Printed: Jesse A. Coury
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Exhibit 10.1
EXECUTION VERSION
FIRST AMENDMENT TO CREDIT AGREEMENT
This First Amendment to Credit Agreement (the “Amendment”), dated as of the 30th day of November 2021, is made and entered into by and among AMERICA FIRST MULTIFAMILY INVESTORS, L.P. (“Borrower”), the Lenders signatory hereto, and BANKUNITED, N.A., (“BankUnited”), as administrative agent for the Lenders (together with its successors and assigns in such capacity and any replacement administrative agent, "Administrative Agent").
BACKGROUND
NOW, THEREFORE, in consideration of the promises and mutual agreements herein contained and incorporating the Background by reference herein, Administrative Agent, Lenders and Borrower, intending to be legally bound hereby, agree as follows:
ARTICLE I - ACKNOWLEDGMENTS
1.1 Acknowledgment of Loan Documents. Borrower hereby acknowledges and agrees that the Loan Documents are valid, binding and enforceable against it in every respect, and all of the terms and conditions thereof are binding upon Borrowers.
1.2 Reaffirmation of Representations and Warranties. Borrower hereby reaffirms its representations and warranties in the Credit Agreement, which representations and warranties are true and correct in all material respects as of the date hereof except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties are true and correct in all material respects on and as of such earlier date), and each and all of which shall survive the execution and delivery of this Amendment.
ARTICLE II - AMENDMENTS TO CREDIT AGREEMENT
The Credit Agreement is hereby amended and revised as follows:
2.1 All references to the “Credit Agreement” set forth in the Credit Agreement shall be deemed to refer to and mean, collectively, the original Credit Agreement dated as of June 11, 2021, and this First Amendment to the Credit Agreement.
2.2 All references to the “Loan Documents” in any of the Loan Documents executed on or about June 11, 2021 shall be deemed to include this First Amendment to the Credit Agreement, and all other instruments of agreements executed pursuant to or in connection with the terms hereof.
2.3 Amendments.
“‘Guarantor’ means any guarantor of all or any part of the Obligations, including without limitation Greystone Select Incorporated under the terms and conditions of that certain Amended and Restated Guaranty, dated as of November 30, 2021. Unless otherwise specified herein or the context requires otherwise, ‘Guarantor’ shall mean and refer to Greystone Select Incorporated.”
“(d) release Borrower, any Guarantor or any other party from liability under the Loan Documents (except for any assigning Lender pursuant to Section 10.6 and any resigning Administrative Agent pursuant to Section 9.5), provided that any decision to waive or modify any affirmative, negative or financial covenant shall not be deemed a "release" for these purposes and may be granted by the Required Lenders (except that no such consent shall be required, and Administrative Agent is hereby authorized, to release Borrower and Guarantor (A) as expressly provided in the Loan Documents and (B) upon payment of the Loan in full in accordance with the terms of the Loan Documents), without the consent of each Lender;”
ARTICLE III - CONDITIONS PRECEDENT
The effectiveness of this Amendment is conditioned upon the fulfillment by Borrower of all of the following conditions precedent on or before the date hereof:
3.1 Documents to be Delivered to Administrative Agent. Borrower shall deliver, or cause to be delivered, to Administrative Agent, in form and substance reasonably satisfactory to Administrative Agent, the following documents:
Page 2 of 6 - First Amendment to Credit Agreement
3.2 Payment of Administrative Agent’s Costs, Expenses and Legal Fees. On or before the date hereof, Borrower shall have paid to Administrative Agent or its attorneys or vendors the amount of its out‑of‑pocket costs and expenses, including, without limitation, all fees and out‑of‑pocket expenses of counsel for Lenders in connection with the preparation of this Amendment and related documents.
ARTICLE IV - REPRESENTATIONS AND WARRANTIES
To induce Administrative Agent and Lenders to enter into this Amendment and as partial consideration for the terms and conditions contained herein, Borrower makes the following representations and warranties to Administrative Agent and Lenders, each and all of which shall survive the execution and delivery of this Amendment and all of the other documents executed in connection herewith:
4.1 Organization; Authorization; and Location.
4.2 Valid and Binding Agreement. This Amendment is, and each of the documents executed pursuant hereto will be, legal, valid, and binding obligations of Borrower, enforceable against Borrower in accordance with their respective terms.
4.3 Compliance with Laws. Borrower is in compliance in all material respects with all laws, regulations and requirements applicable to their businesses and have not received, and have no knowledge of, any order or notice of any governmental investigation or of any violations or claims of violation of any law, regulation or any governmental requirement.
4.4 No Conflict; Government Approvals. The execution, delivery and performance by Borrower of this Amendment and the other documents executed in connection herewith will not:
Page 3 of 6 - First Amendment to Credit Agreement
4.5 Third Party Consents. The execution, delivery and performance by Borrower of this Amendment and the documents related hereto will not:
4.6 Financial Statements; Reporting.
4.7 Exclusive and First Priority Perfected Lien. Administrative Agent has, as of the date hereof, and shall continue to have, until all of the Obligations are paid in full, first priority, valid perfected liens upon and security interests in all of the Collateral to secure the payment and performance of all of the Obligations.
4.8 No Untrue or Misleading Statements. Neither this Amendment nor any other document executed in connection herewith contains any untrue statement of a material fact or omits any material fact necessary in order to make the statement made, in light of the circumstances under which it was made, accurate.
4.9 No Event of Default or Material Adverse Effect. No default or Event of Default has occurred as of the date hereof under any of the Loan Documents of which Borrower has knowledge, nor will any default or Event of Default occur as a result of this Amendment. No Material Adverse Effect has occurred as of the date hereof of which Borrower has knowledge, nor will any Material Adverse Effect occur as a result of this Amendment.
ARTICLE V – GENERAL RELEASE
BORROWER, FOR AND ON BEHALF OF ITSELF AND ALL PERSONS AND/OR ENTITIES CLAIMING BY, THROUGH AND/OR UNDER BORROWER INCLUDING, BUT NOT LIMITED TO, ALL OF ITS PAST AND PRESENT DIRECTORS,
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SHAREHOLDERS, OFFICERS, EMPLOYEES, ATTORNEYS, ACCOUNTANTS, ADMINISTRATORS, AGENTS, SUBSIDIARIES, AFFILIATES, REPRESENTATIVES, PREDECESSORS, SUCCESSORS AND ASSIGNS (COLLECTIVELY REFERRED TO HEREIN, JOINTLY AND SEVERALLY, AS THE “RELEASORS”) HEREBY UNCONDITIONALLY REMISE, RELEASE, ACQUIT AND FOREVER DISCHARGE ADMINISTRATIVE AGENT AND LENDERS AND ALL OF THEIR PAST AND PRESENT DIRECTORS, SHAREHOLDERS, OFFICERS, EMPLOYEES, ATTORNEYS, ACCOUNTANTS, ADMINISTRATORS, AGENTS, PARENT CORPORATIONS, SUBSIDIARIES, AFFILIATES, REPRESENTATIVES, PREDECESSORS, SUCCESSORS, ASSIGNS (COLLECTIVELY REFERRED TO HEREIN AS THE “RELEASEES”), OF, FROM AND WITH RESPECT TO ANY AND ALL GRIEVANCES, DISPUTES, MANNER OF ACTIONS, CAUSES OF ACTION, SUITS, OBLIGATIONS, LIABILITIES, LOSSES, DEBTS, DAMAGES, DUES, SUMS OF MONEY, ACCOUNTS, RECKONINGS, CONTROVERSIES, AGREEMENTS, CLAIMS, DEMANDS, COUNTERCLAIMS AND CROSSCLAIMS, INCLUDING, BUT NOT LIMITED TO ALL CLAIMS AND CAUSES OF ACTION ARISING OUT OF OR RELATED TO THE LOAN DOCUMENTS AND/OR ALL TRANSACTIONS RELATED THERETO, WHETHER KNOWN OR UNKNOWN, ANTICIPATED OR UNANTICIPATED, DIRECT, INDIRECT OR CONTINGENT, ARISING IN LAW OR EQUITY, WHICH THE RELEASORS (OR ANY OF THEM) EVER HAD, NOW HAVE, OR MAY EVER HAVE AGAINST ANY ONE OR MORE OF THE RELEASEES, FROM THE BEGINNING OF TIME THROUGH THE DATE THIS AMENDMENT IS EXECUTED AND DELIVERED.
ARTICLE VI - MISCELLANEOUS
6.1 Continuing Effect. Except as expressly modified and amended hereby, all of the Loan Documents, including but not limited to the Credit Agreement, shall remain in full force and effect and bind and inure to the benefit of the parties thereto and are hereby ratified and confirmed. The terms of such Loan Documents and the terms hereof are intended to be interpreted consistently. In the event of an irreconcilable conflict, the express terms hereof shall control.
6.2 Choice of Law. This Amendment, the construction, interpretation, and enforcement of this Amendment, and the rights of the parties hereto with respect to all matters arising hereunder or related hereto shall be determined under, governed by, and construed in accordance with the laws of the State of New York without regard to principles of conflict of laws or choice of laws.
6.3 Cooperation; Other Documents. At all times following the execution of this Amendment, Borrower shall execute and deliver to Administrative Agent, or shall cause to be executed and delivered to Administrative Agent, and shall do or cause to be done all such other acts and things as Administrative Agent may reasonably deem to be necessary or desirable to assure Administrative Agent and the Lenders of the benefit of this Amendment and the documents comprising or relating to this Amendment.
6.4 Integration. This Amendment and all documents and instruments executed in connection herewith or otherwise relating to this Amendment, including, without limitation, the Loan Documents, constitute the sole agreement of the parties with respect to the subject matter hereof and thereof and supersede all oral negotiations and prior writings with respect to the subject matter hereof and thereof.
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6.5 Amendment and Waiver. No amendment of this Amendment, and no waiver, discharge or termination of any one or more of the provisions thereof, shall be effective unless set forth in writing and signed by all of the parties hereto.
6.6 Successors and Assigns. This Amendment and the other Loan Documents: (a) shall be binding upon Administrative Agent, Lenders and Borrower and upon their respective officers, directors, employees, agents, trustees, representatives, nominees, parent corporation, subsidiaries, heirs, executors, administrators, successors or assigns, and (b) shall inure to the benefit of Administrative Agent, Lenders and Borrower provided, however, that Borrowers may not assign any rights hereunder or any interest herein without obtaining the prior written consent of Lenders, and any such assignment or attempted assignment shall be void and of no effect with respect to Lenders.
6.7 Counterparts; Effectiveness. This Amendment may be executed by facsimile signatures and in any number of counterparts and by the different parties on separate counterparts, and each such counterpart shall be deemed to be an original, but all such counterparts shall together constitute one and the same Amendment. This Amendment shall be deemed to have been executed and delivered when Administrative Agent has received electronic counterparts hereof executed by all parties listed on the signature pages hereto.
[signature page follows]
Page 6 of 6 - First Amendment to Credit Agreement
IN WITNESS WHEREOF, the undersigned have caused this Amendment to be executed by their duly authorized officers on the date first above written.
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BORROWER:
By: America First Capital Associates Limited Partnership Two, its general partner
By: Greystone AF Manager LLC, its
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AGENT AND LENDERS: BANKUNITED, N.A., as a Lender and as Administrative Agent
By: /s/ Jonathan Smith Name: Jonathan Smith Title: Senior Vice President |
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BANKERS TRUST COMPANY, as a Lender
By: /s/ Donald Shiu Name: Donald Shiu Title: Senior Vice President |
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Signature Page to First Amendment to Credit Agreement
Exhibit 10.2
EXECUTION VERSION
AMENDED AND RESTATED GUARANTY
This AMENDED AND RESTATED GUARANTY (this “Guaranty”) dated as of November 30, 2021, by GREYSTONE SELECT INCORPORATED, a Delaware corporation (the “Guarantor”), in favor of BANKUNITED, N.A., as the administrative agent for the Secured Parties (in such capacity, together with its successors and assigns, the “Administrative Agent”) under that certain Credit Agreement, dated as of June 11, 2021, by and among AMERICA FIRST MULTIFAMILY INVESTORS, L.P., a Delaware limited partnership (the “Borrower”), the Lenders from time to time party thereto, and the Administrative Agent (as amended, amended and restated, supplemented, or otherwise modified from time to time, the “Credit Agreement”).
WHEREAS, the Lenders have agreed to make certain Loans to the Borrower pursuant to, and upon the terms and subject to the conditions specified in, the Credit Agreement;
WHEREAS, Greystone Select Holdings LLC, a Delaware limited liability company (the “Initial Guarantor”) entered into that certain Guaranty (the “Original Guaranty”), dated as of June 11, 2021;
WHEREAS, Borrower has requested that from and after the date hereof, Initial Guarantor shall be released from its obligations under the Original Guaranty and, that simultaneously therewith, Guarantor shall become obligated under this Guaranty on the terms and conditions set forth herein; and
WHEREAS, the Guarantor acknowledges that it will derive substantial direct and indirect financial and other benefits from the Loans from time to time made or to be made by the Lenders to the Borrower pursuant to the Credit Agreement and the other Loan Documents, and accordingly, Guarantor desires to enter into this Guaranty.
NOW THEREFORE, in consideration of the premises and mutual covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto (intending to be legally bound) hereby agree as follows:
SECTION 1. Definitions. Capitalized terms used herein and not defined herein shall have the meanings assigned to such terms in the Credit Agreement.
SECTION 2. Guarantee. Effective only upon the occurrence of a Trigger Event (as defined below) and subject to the limitations set forth in this Section 2, Guarantor absolutely, unconditionally and irrevocably guarantees, irrespective of the validity or enforceability of any of the Loan Documents, and whether or not due or to become due before or after any bankruptcy or insolvency proceeding involving Borrower or Mortgagor or would have become due but for such bankruptcy proceeding, as a primary obligor and not merely as a surety, (i) the full, prompt and punctual payment of all Obligations of every kind, including without limitation, (A) the principal of and premium, if any, and interest (including amounts due upon the acceleration of the Obligations, and interest accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding) on the Loans, when and as due, whether at maturity, by acceleration, upon one or more dates set for prepayment or otherwise, together with all reasonable documented out-of-pocket charges, fees, costs and expenses, indemnification, reasonable documented out-of-pocket attorneys’ fees, and any other Obligation, and (B) all other monetary obligations, including reasonable documented out-of-pocket fees,
costs and expenses and indemnities, whether primary, secondary, direct, contingent, fixed or otherwise (including monetary obligations incurred during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding), of the Borrower to the Secured Parties and Administrative Agent under the Credit Agreement and the other Loan Documents; (ii) the prompt, full and punctual performance of all covenants, agreements, obligations and liabilities of the Borrower under or pursuant to the Credit Agreement and the other Loan Documents; (iii) the full, prompt and punctual payment of all of the Mortgagor’s obligations under the Loan Documents executed by it; and, (iv) the prompt, full and punctual performance of all covenants, agreements, obligations and liabilities of the Mortgagor under or pursuant to the Loan Documents executed by it (all the monetary and other obligations referred to in the preceding clauses (i) through (iv) being collectively called the “Guaranteed Obligations”). Guarantor further agrees that the Guaranteed Obligations may be extended, renewed or increased, in whole or in part, without notice to or further assent from Guarantor and that Guarantor will remain bound upon its guarantee notwithstanding any extension, renewal, or increase of any Guaranteed Obligations. Guarantor further agrees to pay (x) all reasonable documented out-of-pocket costs and expenses, legal and/or otherwise (including, but not limited to, court costs and reasonable documented out-of-pocket attorneys’ fees and expenses), paid or actually incurred by Administrative Agent on behalf of Lenders in endeavoring to collect the Guaranteed Obligations, or any part thereof, or in enforcing this Guaranty or in defending any suit based on any act of commission or omission of Administrative Agent or Lenders with respect to the Guaranteed Obligations, the Collateral, or this Guaranty or in connection with any Recovery Claim (as defined below) other than as attributable to the gross negligence or willful misconduct of Administrative Agent (if any) as finally determined in a non-appealable judicial proceeding (collectively, the “Enforcement Costs”); and (y) the Guaranteed Obligations and Enforcement Costs and any and all costs, losses, damages and reasonable documented out-of-pocket attorney’s fees actually incurred by the Administrative Agent or any Lender in connection with the misapplication or misappropriation of any insurance proceeds (each of the aforesaid are collectively referred to as “Extraordinary Claims”). The Guaranteed Obligations, plus the Enforcement Costs, plus any Extraordinary Claims, less any amounts realized and recovered by the Administrative Agent on account of the Guaranteed Obligations, whether received or recovered from the Borrower, any other Person or by foreclosing on the Collateral or otherwise, such amount is collectively referred to herein as the “Guaranteed Liabilities”. Notwithstanding any other provision of this Guaranty to the contrary, the Guarantor shall only be liable for the Guaranteed Liabilities, and the Administrative Agent and Lenders shall only be entitled to enforce this Guaranty to the extent of such Guaranteed Liabilities, after all of the following have occurred (collectively, the “Trigger Event”): (i) the Administrative Agent has provided notice to Borrower of an Event of Default under the Credit Agreement, and a period of nine (9) months has lapsed following the date of such notice without cure of the Event of Default (to the extent that a cure provision is expressly permitted in the Loan Documents) or waiver of the Event of Default in writing by the Administrative Agent; and, (ii) the Administrative Agent has, in good faith, (x) taken all appropriate actions (as determined by the Administrative Agent in its sole discretion, and which determination may be that no action is appropriate) to enforce its liens and security interests against the Suites on Paseo Property (other than through a judicial foreclosure action or non-judicial foreclosure proceeding), and (y) has commenced and diligently completed a judicial foreclosure action or non-judicial foreclosure proceeding with respect to the Suites on Paseo Property, resulting in the sale of the Suites on Paseo Property. Borrower, Guarantor and Mortgagor (and any other mortgagor of the Suites on Paseo Property, if applicable) agree to refrain from opposing such foreclosure proceedings following the occurrence and during the continuation of Event of Default under the Credit Agreement.
SECTION 3. Obligations Not Waived. To the fullest extent permitted by applicable law but subject to the limitations set forth in Section 2 above, Guarantor waives presentment or protest to, demand of or payment from the Borrower or Mortgagor of any of the Guaranteed Liabilities, and also waives notice
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of acceptance of its guarantee and notice of protest for nonpayment. To the fullest extent permitted by applicable law, but subject to the limitations set forth in Section 2 above, the obligations of Guarantor hereunder shall not be affected by (i) the failure of the Administrative Agent or Lenders to assert any claim or demand or to enforce or exercise any right or remedy against Borrower, Mortgagor or any other guarantor under the provisions of the Credit Agreement, any other Loan Document or otherwise, (ii) any rescission, waiver, amendment or modification of, or any release from any of the terms or provisions of, this Guaranty, any other Loan Document, any guarantee or any other agreement, including with respect to any other guarantor under this Guaranty, or (iii) the failure to perfect any security interest in, or the release of, any of the security held by or on behalf of the Administrative Agent or Lenders. Guarantor hereby also waives notice of any loan or other financial accommodations made or extended to Borrower or the creation or existence of any Guaranteed Liabilities, notice of the amount of the Guaranteed Liabilities, subject, however, to Guarantor’s right to make inquiry of Administrative Agent to ascertain the amount of the Guaranteed Liabilities at any reasonable time, notice of any adverse change in the financial condition of Borrower or Mortgagor or of any other fact that might increase Guarantor’s risk hereunder or the dollar amount of Guarantor’s liability, notice of any event of default by Borrower or Mortgagor under any instrument, writing or agreement with Administrative Agent or any Lender including the Loan Documents, and all other notices (except if such notice is specifically required to be given to Guarantor hereunder) and demands to which Guarantor might otherwise be entitled. Without limiting the foregoing but subject to the limitations set forth in Section 2 above, Guarantor hereby expressly and irrevocably waives all defenses in an action brought by Administrative Agent or any Lender to enforce this Guaranty that may be waived by law, including defenses based on claims of waiver, release, surrender, alteration or compromise and all setoffs, reductions, or impairments, whether arising hereunder or otherwise.
SECTION 4. Reserved.
SECTION 5. Guaranty of Payment; Primary Obligations; Application of Payments; Interest.
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SECTION 6. Financial Statements and Other Reporting. Guarantor shall deliver to the Administrative Agent:
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SECTION 7. Covenants.
SECTION 8. No Discharge or Diminishment of Guaranty. The obligations of Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than the payment in full in cash of the Guaranteed Liabilities (other than contingent indemnification obligations and other contingent obligations not yet accrued and payable)), including any claim of waiver, release, surrender, alteration or compromise of any of the Guaranteed Liabilities, and shall not be subject to any defense or setoff, counterclaim, recoupment or termination whatsoever by reason of the invalidity, illegality or unenforceability of the Guaranteed Liabilities or otherwise. Without limiting the generality of the foregoing but subject to the limitations set forth in Section 2 above, the obligations of Guarantor hereunder shall not be discharged or impaired or otherwise affected by the failure of the Administrative Agent or Lenders to assert any claim or demand or to enforce any remedy under the Credit Agreement, any other Loan Document or any other agreement, by any waiver or modification of any provision of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Liabilities, or to the fullest extent that Guarantor may prospectively waive such defenses under applicable law, by any other act or omission that may or might in any manner or to the extent vary the risk of Guarantor or that would otherwise operate as a discharge of Guarantor as a matter of law or equity (other than the payment in full in cash of all the Obligations).
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SECTION 9. Defenses Waived.
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SECTION 10. Agreement to Pay; Subordination. In furtherance of the foregoing and not in limitation of any other right that the Administrative Agent and Lenders have at law or in equity against Guarantor by virtue hereof, upon the failure of Borrower and/or Mortgagor to pay any obligations, each when and as the same shall become due, whether at maturity, by acceleration, after notice of prepayment or otherwise, Guarantor, subject to the limitations set forth in Section 2 above, hereby promises to and will forthwith pay, or cause to be paid, to the Administrative Agent or Lenders, as applicable, in cash the amount of the Guaranteed Liabilities. Upon payment by Guarantor of any sums to the Administrative Agent or Lenders, as applicable, all rights of Guarantor against Borrower or Mortgagor arising as a result thereof by way of right of subrogation, contribution, reimbursement, indemnity or otherwise shall in all respects be subordinate and junior in right of payment to the prior payment in full in cash of all the Guaranteed Liabilities (other than contingent indemnification obligations and other contingent obligations not yet accrued and payable). In addition, any indebtedness of Borrower or Mortgagor now or hereafter held by Guarantor is hereby subordinated in right of payment to the prior payment in full in cash of the Guaranteed Liabilities (other than contingent indemnification obligations and other contingent obligations not yet accrued and payable). If any amount shall erroneously be paid to Guarantor on account of (i) such subrogation, contribution, reimbursement, indemnity or similar right or (ii) any such indebtedness of Borrower or Mortgagor after the occurrence and during the continuance of an Event of Default, such amount
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shall be held in trust for the benefit of the Administrative Agent and Lenders and shall forthwith be paid to the Administrative Agent or Lenders, as applicable, to be credited against the payment of the Guaranteed Liabilities, whether matured or unmatured, in accordance with the terms of the Loan Documents.
SECTION 11. Information. Guarantor assumes all responsibility for being and keeping itself informed of the Borrower’s and Mortgagor’s financial condition and assets, and of all other circumstances bearing upon the risk of nonpayment of the Guaranteed Liabilities and the nature, scope and extent of the risks that Guarantor assumes and incurs hereunder, and agrees that the Secured Parties will not have any duty to advise the Guarantor of information known to it regarding such circumstances or risks.
SECTION 12. Representations and Warranties . Guarantor represents and warrants to Administrative Agent and the Lenders as follows (which representations and warranties shall be given as of the date hereof and shall survive the execution and delivery of this Guaranty):
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SECTION 13. Termination. The guarantees made hereunder (i) shall terminate when all of the Guaranteed Liabilities have been paid in full in cash and the Administrative Agent and Lenders have no further commitment to lend under the Credit Agreement (other contingent indemnification obligations and other contingent obligations not yet accrued and payable) and (ii) shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of any Obligation is rescinded or must otherwise be restored by the Administrative Agent or Lenders or Guarantor upon the bankruptcy or reorganization of Borrower, Mortgagor, Guarantor or otherwise. In connection with the foregoing, the Administrative Agent and Lenders shall execute and deliver to Guarantor or Guarantor’s designee, at Guarantor’s expense, any documents or instruments that Guarantor shall reasonably request to evidence such termination and release.
SECTION 14. Binding Effect; Several Agreement; Assignments. Whenever in this Guaranty any of the parties hereto is referred to, such reference shall be deemed to include the successors and permitted assigns of such party; and all covenants, promises and agreements by or on behalf of the Guarantor that are contained in this Guaranty shall bind and inure to the benefit of each party hereto and their respective successors and assigns. This Guaranty shall become effective as to Guarantor when a counterpart hereof executed on behalf of Guarantor shall have been delivered to the Administrative Agent and Lenders, and a counterpart hereof shall have been executed on behalf of the Administrative Agent and Lenders, and thereafter shall be binding upon Guarantor and the Administrative Agent and Lenders and their respective successors and assigns, and shall inure to the benefit of Guarantor and the Administrative Agent, and their respective successors and assigns, except that no Guarantor shall have the right to assign its rights or obligations hereunder or any interest herein (including, without limitation, pursuant to a plan of Division or any other operation of law) (and any such attempted assignment shall be void ab initio). This Guaranty shall be construed as a separate agreement with respect to Guarantor and may be amended, modified, supplemented, waived or released with respect to Guarantor without the approval of any other guarantor and without affecting the obligations of any other guarantor hereunder.
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SECTION 15. Waivers; Amendment.
SECTION 16. Governing Law. THIS GUARANTY, INCLUDING MATTERS OF CONSTRUCTION, VALIDITY, PERFORMANCE AND THE OBLIGATIONS ARISING HEREUNDER, AND ANY AND ALL CLAIMS RELATING TO OR ARISING OUT OF THIS GUARANTY OR THE BREACH THEREOF, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, IN EACH CASE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS OR CHOICE OF LAWS.
SECTION 17. Notices. All notices, requests and other communications hereunder shall be delivered in the manner required by the Credit Agreement and shall be sufficiently given to the Administrative Agent or Guarantor if addressed or delivered to them at, in the case of the Administrative Agent and Borrower, its addresses, email addresses, and telecopier numbers specified in Section 10.1 to the Credit Agreement and in the case of any other guarantor, or Mortgagor, at the aforementioned address of the Borrower.
SECTION 18. Survival of Agreement; Severability; Restatement and Release. The terms of Section 10.8 and Section 10.10 of the Credit Agreement are incorporated herein mutatis mutandis. This Guaranty hereby amends, restates and supersedes the Original Guaranty in its entirety and the Initial Guarantor is hereby released from its obligations under the Original Guaranty.
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SECTION 19. Counterparts. The terms of Section 10.21 of the Credit Agreement are incorporated herein mutatis mutandis.
SECTION 20. Rules of Interpretation. The rules of interpretation specified in Section 1.4 of the Credit Agreement shall be applicable to this Guaranty, mutatis mutandis.
SECTION 21. Jurisdiction; Consent to Service of Process. The terms of Section 10.14(b) of the Credit Agreement are incorporated herein mutatis mutandis
SECTION 22. WAIVER OF JURY TRIAL. EACH PARTY HERETO AGREES NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVE ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST WITH REGARD TO THIS GUARANTY OR THE 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 THE PARTIES HERETO, AND IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY JURY WOULD OTHERWISE ACCRUE. EITHER PARTY IS HEREBY AUTHORIZED TO FILE A COPY OF THIS PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY THE OTHER.
SECTION 23. Right of Setoff. The terms of Section 10.3 of the Credit Agreement are incorporated herein mutatis mutandis; provided however, neither the Administrative Agent nor any Secured Party shall be permitted to enforce such rights of Setoff until such time as a Trigger Event has occurred.
SECTION 24. Savings Clause.
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SECTION 25. Recovery Claims. Should a claim (“Recovery Claim”) be made upon Administrative Agent or Lenders at any time for recovery of any amount received by Administrative Agent or Lenders in payment of the Guaranteed Liabilities (whether received from Borrower, Mortgagor or Guarantor pursuant hereto, or otherwise) and should Administrative Agent or any Lender repay all or part of said amount by reason of (a) any judgment, decree, or order of any court or administrative body having jurisdiction over Administrative Agent or any Lender or any of its respective property; or (b) any reasonable settlement or compromise of any such Recovery Claim effected by Administrative Agent or such Lender with the claimant (including Borrower and Mortgagor), Guarantor shall remain liable to Administrative Agent and Lenders for the amount so repaid to the same extent as if such amount had never originally been received by Administrative Agent and Lenders, notwithstanding any termination hereof or the return of this document to Guarantor or the cancellation of any note or other instrument evidencing any of the Guaranteed Obligations.
SECTION 26. Indemnification. Guarantor agrees to and shall indemnify, defend and hold harmless Administrative Agent and Lenders (and each of their respective officers, employees, directors, equity holders, affiliates, attorneys, successors, assigns, and Administrative Agents) (collectively, the
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“Indemnified Parties” and individually an “Indemnified Party”) from and against any and all demands, claims, suits, actions, or liabilities asserted by any party and against all losses, penalties, damages and reasonable documented out-of-pocket costs, and expenses (including, without limitation, reasonable documented out-of-pocket attorneys’ fees) in any way suffered, incurred, or paid by Administrative Agent or Lenders as a result of or in any way arising out of Administrative Agent’s or any Lender’s transactions with Borrower or Mortgagor under or pursuant to any of the Loan Documents at any time; provided, that Guarantor shall not have any obligation to indemnify, defend and hold harmless an Indemnified Party with respect to (x) matters caused by or resulting from the willful misconduct or gross negligence of such Indemnified Party as finally determined in a non-appealable judicial proceeding, (y) result from a claim brought by Borrower or Guarantor or any other Person obligated under any Loan Document against an Indemnified Party for breach in bad faith of such Indemnified Party’s obligations hereunder or under any other Loan Document, if Borrower, Guarantor or such other Person has obtained a final and nonappealable judgment in its favor on such claim as determined by a court of competent jurisdiction or (z) result from a claim not involving an act or omission of Borrower, Guarantor or such other Person and that is brought by an Indemnified Party against another Indemnified Party (other than against the arranger or Administrative Agent in their capacities as such).
SECTION 27. Keepwell. If Guarantor is a Qualified ECP Guarantor, it absolutely, unconditionally and irrevocably undertakes to provide such funds or other support as may be needed from time to time by Borrower to honor all of its obligations under the Credit Agreement in respect of Hedging Obligations (provided, however, that Guarantor shall only be liable under this Section for the maximum amount of such liability that can be hereby incurred without rendering its obligations under this Section, or otherwise under this Guaranty, to be avoidable or unenforceable against Guarantor in such proceeding as a result of applicable Legal Requirements, including, without limitation, (A) Section 548 of the Bankruptcy Code of the United States and (B) any state fraudulent transfer or fraudulent conveyance act or statute applied in such proceeding, whether by virtue of Section 544 of the Bankruptcy Code of the United States or otherwise, and not for any greater amount). The obligations of Guarantor under this Section shall remain in full force and effect until the later of (i) the Guaranteed Obligations (other than contingent indemnification obligations and other contingent obligations not yet accrued and payable) shall have been paid, performed and completed in full, and (ii) the Loan, Hedging Obligations and all interests, fees, and other amounts due from the Borrower under the Loan Documents and the Master Agreement or other documentation in connection with such Hedging Transactions have been paid in full (other than contingent indemnification obligations and other contingent obligations not yet accrued and payable). Guarantor intends that this Section constitute, and this Section shall be deemed to constitute, a “keepwell, support, or other agreement” for the benefit of Borrower for all purposes of Section 1a(18)(A)(v)(II) of the Commodity Exchange Act. As used herein, (i) “Commodity Exchange Act” means 7 U.S.C. §1 et seq., as amended from time to time, and any successor statute and (ii) “Qualified ECP Guarantor” means, at any time, the Guarantor, with total assets exceeding $10,000,000 or that qualifies at such time as an “eligible contract participant” under the Commodity Exchange Act and that can cause another Person to qualify as an “eligible contract participant” at such time under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.
SECTION 28. Review by Guarantor. Guarantor acknowledges that Guarantor has thoroughly read and reviewed the terms and provisions of this Guaranty, and that such terms and provisions are clearly understood by Guarantor, and has been fully and unconditionally consented to by Guarantor with the full benefit and advice of counsel chosen by Guarantor.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Guaranty as of the day and year first above written.
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GUARANTOR: GREYSTONE SELECT INCORPORATED, a Delaware corporation
By: /s/ Curtis Pollock
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ADMINISTRATIVE AGENT: BANKUNITED, N.A., as Administrative Agent
By: /s/ Jonathan Smith
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Signature Page to Guaranty