Limited Guaranty, dated July 1, 2021, by and among AvePoint, Inc. and HSBC Ventures USA Inc
This LIMITED GUARANTY (this Guaranty) is made as of July 1, 2021, by AVEPOINT, INC. (f/k/a APEX TECHNOLOGY ACQUISITION CORP.), a Delaware corporation (Guarantor), in favor of HSBC VENTURES USA INC. (Bank).
WHEREAS, pursuant to the terms of the Loan and Security Agreement, dated as of April 7, 2020 (as amended by the Limited Consent and First Amendment to Loan and Security Agreement, dated as of the date hereof, and as may be further amended, restated, supplemented or otherwise modified from time to time, the Loan Agreement), by and among AvePoint US, LLC (f/k/a Athena Technology Merger Sub 2, LLC) (successor by merger to AvePoint Operations, Inc. (f/k/a AvePoint, Inc.), Borrower), Guarantor, other guarantors from time to time party thereto and Bank, Bank has agreed to extend credit to Borrower (the Credit Facility), provided that Guarantor guarantees Borrowers obligations relating to the Credit Facility as provided herein;
WHEREAS, Borrower is a wholly-owned subsidiary of Guarantor; and
WHEREAS, Guarantor derives indirect benefits from Banks extension of the Credit Facility to Borrower under the Loan Agreement and is therefore willing to enter into and perform in accordance with this Guaranty.
GUARANTOR THEREFORE GUARANTEES AND AGREES AS FOLLOWS:
1. Definitions and Terms.
(a) Definitions. For purposes of this Guaranty, the following terms shall have the following definitions:
Borrower shall include the above-named Borrower and any other Person at any time assuming or otherwise becoming primarily liable for all or any part of the obligations of the above-named Borrower under the Loan Documents, including the trustee and the debtor-in-possession in any bankruptcy or similar proceeding involving the named Borrower.
(b) Other Terms. All other capitalized terms used herein without definition shall have the meanings assigned to them in the Loan Agreement.
(a) Guaranty. Subject to the limitations set forth in Section 2(b), Guarantor hereby absolutely, unconditionally and irrevocably guarantees to Bank the due and punctual payment, performance and discharge (whether upon acceleration or otherwise in accordance with the terms thereof) of all Obligations. Subject to the limitations set forth in Section 2(b), this guaranty of the Obligations includes in all cases all such Obligations which arise after the filing of a bankruptcy petition with respect to Borrower or any other Loan Party and all such Obligations
which would become due but for the operation of (i) the automatic stay under Section 362(a) of the Bankruptcy Code, (ii) Section 502(b) of the Bankruptcy Code, or (iii) Section 506(b) of the Bankruptcy Code, including interest accruing under the Loan Documents after the filing of a Bankruptcy petition, whether or not allowed or allowable as a claim in the Bankruptcy proceeding. Subject to the limitations set forth in Section 2(b), this Guaranty is a guaranty of prompt and punctual payment of the Obligations, whether at stated maturity, by acceleration or otherwise, and is not merely a guaranty of collection.
(b) Limited Recourse. Anything contained in this Guaranty to the contrary notwithstanding, other than as specifically set forth in this Section 2(b) and in Section 3, recourse against Guarantor or the assets of Guarantor, for the enforcement of this Guaranty shall be limited to the tangible and intangible property (the Collateral) of Guarantor in which Guarantor has granted a security interest, or pledged, to Bank, pursuant to any Pledge Agreement to which it is a party. Except for the ability to enforce Guarantors obligations under this Guaranty by enforcing the Pledge Agreements and exercising its rights with respect to the liens and security interests granted in the Pledge Agreements or enforcing its rights under the provisions of Section 3, Bank shall have no right to enforce this Guaranty against Guarantor or any other assets of Guarantor, other than for claims, actions or enforcement proceedings brought by Bank against Guarantor or the assets of Guarantor that are determined by a final judgment of a court of competent jurisdiction to result from the misappropriation, misapplication, theft or diversion of any of the Collateral or any proceeds of the Collateral by Guarantor (which claims, actions and enforcement proceedings shall not be limited by this section). Subject to the foregoing provisions, upon the failure of Borrower to pay any of the Obligations when and as the same shall become due, Guarantor will, upon demand, pay, or cause to be paid, in cash, to Bank an amount equal to the aggregate of the unpaid Obligations. Nothing contained in this paragraph shall affect or limit the ability of Bank to enforce any of its rights or remedies with respect to any other property encumbered by any other agreement or instrument; and nothing contained in this paragraph shall affect or limit the rights of Bank to proceed against any person or entity, Borrower or any other guarantor of the Obligations, with respect to the enforcement of any other guaranties, indemnity agreements or other similar rights.
3. Rights of Bank. Guarantor authorizes Bank, without giving notice to Guarantor or any Loan Party or obtaining Guarantors or any Loan Partys consent and without affecting the liability of Guarantor or any Loan Party for the Obligations to the extent described in Section 2 hereof, from time to time, to:
(a) compromise, settle, renew, extend the time for payment, change the manner or terms of payment, discharge the performance of, decline to enforce, or release all or any of the Obligations; grant other indulgences to Borrower in respect thereof; or modify in any manner any documents (other than this Guaranty) relating to the Obligations, in each case (other than with respect to decisions not to enforce and to grant indulgences) in accordance with Loan Documents;
(b) declare all Obligations due and payable upon the occurrence of an Event of Default;
(c) take and hold security for the performance of the Obligations and exchange, enforce, waive and release any such security;
(d) apply and reapply such security and direct the order or manner of sale thereof as Bank, in its sole discretion, may determine;
(e) release, surrender or exchange any deposits or other property securing the Obligations or on which Bank at any time may have a Lien; release, substitute or add any one or more endorsers or guarantors of the Obligations; or compromise, settle, renew, extend the time for payment, discharge the performance of, decline to enforce, or release all or any obligations of any such endorser or guarantor or other Person who is now or may hereafter be liable on any Obligations or release, surrender or exchange any deposits or other property of any such Person;
(f) apply payments received by Bank from Borrower to any Obligations, in such order as Bank shall determine, in its sole discretion, whether or not any such Obligations are covered by this Guaranty; and
(g) assign this Guaranty in whole or in part to the extent Bank is permitted to assign the Obligations under the Loan Agreement.
4. Guarantors Waivers.
(a) Guarantor waives:
(i) any defense based upon any legal disability or other defense of Borrower, or by reason of the cessation or limitation of the liability of Borrower from any cause (other than full payment of all Obligations and the termination or expiration of the Credit Facility), including failure of consideration, breach of warranty, statute of frauds, statute of limitations, accord and satisfaction, and usury;
(ii) any defense based upon any legal disability or other defense of any other guarantor or other Person;
(iii) any defense based upon any lack of authority of the officers, directors, partners or agents acting or purporting to act on behalf of Borrower or any principal of Borrower or any defect in the formation of Borrower or any principal of Borrower;
(iv) any defense based upon the application by Borrower of the proceeds of the Credit Facility for purposes other than the purposes represented by Borrower to Bank or intended or understood by Bank or Guarantor;
(v) any defense based on Guarantors rights, under statute or otherwise, to require Bank to sue Borrower or any other Loan Party or otherwise to exhaust its rights and remedies against Borrower or any other Person or against any collateral before seeking to enforce this Guaranty;
(vi) any defense based on Banks failure at any time to require strict performance by Borrower or any Loan Party of any provision of the Loan Documents or by Guarantor of this Guaranty. Guarantor agrees that no such failure shall waive, alter or diminish any right of Bank thereafter to demand strict compliance and performance therewith. Nothing contained herein shall prevent Bank from foreclosing on the Lien of any deed of trust, mortgage or other security agreement (including, without limitation, the Loan Agreement and the Pledge Agreements), or exercising any rights available to Bank thereunder, and the exercise of any such rights shall not constitute a legal or equitable discharge of Guarantor;
(vii) any defense arising from any act or omission of Bank which changes the scope of Guarantors risks hereunder;
(viii) any defense based upon Banks election of any remedy against Guarantor or Borrower or both; any defense based on the order in which Bank enforces its remedies;
(ix) any defense based on (A) Banks surrender, release, exchange, substitution, dealing with or taking any additional collateral, (B) Banks abstaining from taking advantage of or realizing upon any Lien or other guaranty, and (C) any impairment of collateral securing the Obligations, including, but not limited to, Banks failure to perfect, or maintain the perfection or priority of, a Lien in such collateral;
(x) any defense based upon Banks failure to disclose to Guarantor any information concerning Borrowers or the Loan Parties financial condition or any other circumstances bearing on Borrowers or the Loan Parties ability to pay the Obligations;
(xi) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in any other respects more burdensome than that of a principal;
(xii) any defense based upon Banks election, in any proceeding instituted under the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code or any successor statute;
(xiii) any defense based upon any borrowing or any grant of a Lien under Section 364 of the Bankruptcy Code;
(xiv) any defense based on Banks failure to be diligent or to act in a commercially reasonable manner, or to satisfy any other standard imposed on a secured party, in exercising rights with respect to collateral securing the Obligations;
(xv) notice of acceptance hereof; notice of the existence, creation or acquisition of any Obligation; notice of any Event of Default; notice of the amount of the Obligations outstanding from time to time; notice of any other fact which might increase Guarantors risk; diligence; presentment; demand of payment; protest; filing of claims with a court in the event of Borrowers or any Loan Partys receivership or bankruptcy and all other notices and demands to which Guarantor might otherwise be entitled (and agrees the same shall not have to be made on Borrower or any Loan Party as a condition precedent to Guarantors obligations hereunder);
(xvi) any defense based on errors and omissions by Bank in connection with its administration of the Credit Facility;
(xvii) any defense based on application of fraudulent conveyance or transfer law or shareholder distribution law to any of the Obligations or the security therefor;
(xviii) any defense based on Banks failure to seek relief from stay or adequate protection in Borrowers or any Loan Partys Bankruptcy proceeding or any other act or omission by Bank which impairs Guarantors prospective subrogation rights;
(xix) any defense based on legal prohibition of Banks acceleration of the maturity of the Obligations during the occurrence of an Event of Default or any other legal prohibition on enforcement of any other right or remedy of Bank with respect to the Obligations and the security therefor; and
(xx) the benefit of any statute of limitations affecting the liability of Guarantor hereunder or the enforcement hereof.
(b) Guarantor agrees that the payment of all sums payable under the Loan Documents or any part thereof or other act which tolls any statute of limitations applicable to the Loan Documents shall similarly operate to toll the statute of limitations applicable to Guarantors liability hereunder.
5. Subrogation. Guarantor shall not exercise any rights which it may acquire by reason of any payment made hereunder, whether by way of subrogation, reimbursement or otherwise, until (a) the prior payment, in full and in cash, of all Obligations and (b) termination or expiration of the Credit Facility. Any amount paid to Guarantor on account of any payment made hereunder prior to the payment in full of all Obligations and termination or expiration of the Credit Facility shall be held in trust for the benefit of Bank hereunder. So long as any Obligations remain outstanding and the Credit Facility remains in existence, Guarantor shall refrain from taking any action or commencing any proceeding against Borrower, whether in connection with a Bankruptcy proceeding or otherwise, to recover any amounts in respect of payments made to Bank under this Guaranty.
6. Guarantors Acknowledgment. Guarantor acknowledges that Bank would not and would not continue to extend the Credit Facility but for this Guaranty.
7. Representations and Warranties of Guarantors. Guarantor represents and warrants to Bank, as an inducement to Bank to enter into the Loan Documents, that:
(a) the execution, delivery and performance by Guarantor of this Guaranty (i) do not contravene any law or any contractual restriction binding on or affecting Guarantor or by which Guarantors property may be affected; and (ii) do not require any authorization or approval or other action by, or any notice to or filing with, any other Person except such as have been obtained or made;
(b) there are no conditions precedent to the effectiveness of this Guaranty, and this Guaranty shall be in full force and effect and binding on Guarantor as of the date hereof, regardless of whether Bank obtains collateral or any guaranties from others or takes any other action contemplated by Guarantor;
(c) this Guaranty constitutes the legal, valid and binding obligation of Guarantor, enforceable in accordance with its terms, except as the enforceability thereof may be subject to or limited by bankruptcy, insolvency, reorganization, arrangement, moratorium or other similar laws relating to or affecting the rights of creditors generally and by general principles of equity;
(d) there is no action, suit or proceeding affecting Guarantor pending or threatened before any court, arbitrator, or governmental authority, which may materially adversely affect Guarantors ability to perform his obligations under this Guaranty;
(e) Guarantor has established adequate means of obtaining from sources other than Bank, on a continuing basis, financial and other information pertaining to Borrowers and the Loan Parties financial condition, Borrowers and the Loan Parties property and Borrowers and the Loan Parties activities relating thereto and the status of Borrowers and the Loan Parties performance of obligations imposed by the Loan Documents, and Guarantor agrees to keep adequately informed from such means of any facts, events or circumstances which might in any way affect Guarantors risks hereunder and Bank has made no representation or warranty to such Guarantor as to any such matters;
(f) there are not now pending any material court or administrative proceedings or undischarged judgments against Guarantor, and no tax liens have been filed or threatened against Guarantor. Guarantor is not in default, or alleged to be in default, under any agreement for borrowed money; and
(g) Bank has made no representation or warranty to Guarantor regarding any collateral for the Obligations, including its value and/or its transferability in the event Bank exercises its remedies under the Loan Documents.
8. Bankruptcy of Borrower. In any bankruptcy or other proceeding in which the filing of claims is required by law, Guarantor shall file all claims which Guarantor may have against Borrower or the Loan Parties relating to any indebtedness of Borrower or the Loan Parties to Guarantor and shall assign to Bank all rights of Guarantor thereunder. If Guarantor does not file any such claim, Bank, as attorney-in-fact for Guarantor, is hereby authorized to do so in the name of Guarantor or, in Banks discretion, to assign the claim to a nominee and to cause a proof of claim to be filed in the name of Banks nominee. The foregoing power of attorney is coupled with an interest and cannot be revoked. Bank or its nominee shall have the right, in its reasonable discretion, to accept or reject any plan proposed in such proceeding and to take any other action which a party filing a claim is entitled to take. In all such cases, whether in administration, bankruptcy or otherwise, the Person or Persons authorized to pay such claim shall pay to Bank the amount payable on such claim and, to the full extent necessary for that purpose, Guarantor hereby assigns to Bank all of Guarantors rights to any such payments or distributions; provided, however, that Guarantors obligations hereunder shall not be satisfied except to the extent that Bank receives cash by reason of any such payment or distribution. If Bank receives anything hereunder other than cash, the same shall be held as collateral for amounts due under this Guaranty.
9. Remedies Cumulative. Banks rights and remedies under this Guaranty, the Loan Documents, and all other agreements shall be cumulative. Bank shall have all other rights and remedies not inconsistent herewith as provided under the Code, by law, or in equity. No exercise by Bank of one right or remedy shall be deemed an election, and no waiver by Bank of any Event of Default on Guarantors part shall be deemed a continuing waiver. No delay by Bank shall constitute a waiver, election, or acquiescence by it. No waiver by Bank shall be effective unless made in a written document signed on behalf of Bank and then shall be effective only in the specific instance and for the specific purpose for which it was given. Guarantor expressly agrees that this Section 9 may not be waived or modified by Bank by course of performance, conduct, estoppel or otherwise.
10. Demand; Protest. Except as otherwise provided in this Guaranty, Guarantor waives demand, protest, notice of protest, notice of default or dishonor, notice of payment and nonpayment and any other notices relating to the Obligations.
11. Bank Records. Guarantor agrees that Banks books and records with respect to the Obligations shall be admissible in evidence in any action or proceeding shall be binding upon Guarantor for purposes of establishing the items therein set forth and shall constitute prima facie proof thereof, irrespective of whether any Obligation is also evidenced by a note or other instrument.
12. Additional, Independent and Unsecured Obligations. Guarantors obligations hereunder shall be in addition to, and shall not limit or in any way affect, Guarantors obligations under any other existing or future guaranties unless said other guaranties are expressly modified or revoked in writing. This Guaranty is independent of the obligations of Borrower and the other Loan Parties under the Loan Documents. Bank may bring a separate action to enforce the provisions hereof against Guarantor without taking action against Borrower or any other Person or joining Borrower or any other Person as a party to such action.
13. Term; Revival.
(a) This Guaranty is irrevocable by Guarantor. It is a continuing guaranty and shall terminate only upon the full satisfaction of the Obligations (other than inchoate indemnity obligations or obligations extending beyond maturity that have been cash collateralized in an amount and manner satisfactory to Bank) and termination or expiration of the Credit Facility. If, notwithstanding the foregoing, Guarantor shall have any nonwaivable right under applicable law or otherwise to terminate or revoke this Guaranty, Guarantor agrees that such termination or revocation shall not be effective until Bank receives written notice of such termination or revocation. Such notice shall not affect the Banks right and power to enforce rights arising prior to receipt thereof. If Bank makes Credit Extensions or takes any other action after Guarantors termination or revocation but prior to receipt of the requisite notice, Banks rights with respect thereto shall be the same as if such termination or revocation had not occurred.
(b) Guarantors liability hereunder shall be reinstated and revived, and the Banks rights shall continue, with respect to any amount at any time paid by Borrower or any Loan Party on account of the Loan Documents which Bank shall be required to restore or return upon the bankruptcy, insolvency or reorganization of Borrower or any Loan Party or for any other reason, whether by court order, administrative order or settlement, all as though such amount had not been paid and this Guaranty shall be reinstated if the Credit Facility had expired or terminated and all of the Obligations had been satisfied prior to the restoration or return of the payment.
14. Attorneys Fees; Enforcement. If any attorney is engaged by Bank to enforce, construe or defend any provision of (a) this Guaranty or (b) in connection with the enforcement, construction or defense of this Guaranty, any of the other Loan Documents, or as a consequence of any Event of Default, with or without the filing of any legal action or proceeding, Guarantor shall pay to Bank, immediately upon demand, the amount of all reasonable out-of-pocket attorneys fees and costs incurred by Bank in connection therewith.
15. Headings. All headings appearing in this Guaranty are for convenience only and shall be disregarded in construing this Guaranty.
16. Choice of Law; Venue. This Guaranty shall be governed by, and construed in accordance with, the law of the State of New York, without regard to conflicts of law principles except Title 14 of Article 5 of the New York General Obligations law. Each of the parties hereto hereby irrevocably consents to the jurisdiction of the courts of the State of New York and of any federal court located in the Borough of Manhattan in such State in connection with any action, suit or other proceeding arising out of or relating to this Guaranty or any action taken or omitted hereunder, and waives any claim of forum non conveniens and any objections as to laying of venue. Each party further waives personal service of any summons, complaint or other process, right to a jury trial and agrees that service thereof may be made by certified or registered mail directed to such Person at such Persons address for purposes of notices hereunder and that service so made shall be deemed completed upon the earlier to occur of such Persons actual receipt thereof or three (3) days after deposit in the U.S. mails, proper postage prepaid.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, GUARANTOR AND BANK EACH WAIVE THEIR RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR BASED UPON THIS GUARANTY, THE OTHER LOAN DOCUMENTS OR ANY CONTEMPLATED TRANSACTION, INCLUDING CONTRACT, TORT, BREACH OF DUTY AND ALL OTHER CLAIMS. THIS WAIVER IS A MATERIAL INDUCEMENT FOR THE PARTIES TO ENTER INTO THIS GUARANTY AND THE OTHER LOAN DOCUMENTS. EACH PARTY HAS REVIEWED THIS WAIVER WITH ITS COUNSEL.
This Section 16 shall survive the termination of this Agreement.
17. Notices. All notices, consents, requests, approvals, demands, or other communication by a party to this Guaranty or any other Loan Document must be in writing and shall be deemed to have been validly served, given, or delivered if sent to the applicable party at its address below and in accordance with the same requirements under Section 10 of the Loan Agreement. The parties may change their respective addresses in accordance with the provisions of Section 10 of the Loan Agreement.
If to Guarantor:
Riverfront Plaza West
901 East Byrd Street, 9th Floor
Richmond, VA 23219
Attn: General Counsel
If to Bank:
|HSBC Ventures USA Inc.|
|452 Fifth Avenue|
|New York, NY 10018|
|Attn: Jan Luehrs|
|With a copy to:|
|HSBC Ventures USA Inc.|
|95 Washington Street|
|Buffalo, NY 14203|
|Attn: CMB Loan Service|
18. Assignment; Binding Effect. This Guaranty shall be binding upon and inure to the benefit of Guarantor and Bank and their respective successors and assigns permitted under the Loan Agreement, except that Guarantor shall not have the right to assign its rights or obligations hereunder or any interest herein without Banks prior written consent.
19. Entire Agreement; Modifications. This Guaranty is intended by Guarantor and Bank to be the final, complete, and exclusive expression of the agreement between them. This Guaranty supersedes all prior and contemporaneous oral and written agreements relating to the subject matter hereof. No modification, rescission, waiver, release, or amendment of any provision of this Guaranty shall be made, except by a written agreement signed by Guarantor and Bank.
20. Severability. If any provision of this Guaranty shall be determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, that portion shall be deemed severed from this Guaranty and the remaining parts shall remain in full force as though the invalid, illegal or unenforceable portion had never been part of this Guaranty.
[Remainder of Page Intentionally Blank]
IN WITNESS WHEREOF, this Guaranty has been duly executed by the undersigned as of the date first written above.
|AVEPOINT, INC. (f/k/a APEX TECHNOLOGY ACQUISITION CORP.)|
|Name:||Brian Michael Brown|
|Title:||Chief Operating Officer and General Counsel|
|Acknowledged and Agreed by:|
|HSBC VENTURES USA INC.|
[Signature Page to Limited Guaranty (Parent)]
IN WITNESS WHEREOF, this Guaranty has been duly executed by the undersigned as of the date first written above.
|AVEPOINT, INC. (f/k/a APEX TECHNOLOGY ACQUISITION CORP.)|
Acknowledged and Agreed by:
HSBC VENTURES USA INC.
Name: Prasant Chunduru
Title: SVP, Head of Venture Debt
[Signature Page to Limited Guaranty (Parent)]