General Amendments. Notwithstanding any term or condition of the Credit Agreement, the Borrower, the Guarantor, the Agent and the Lenders hereby agree as follows: a. From and after the date hereof, no further Loans will be advanced or Letters of Credit issued under the Credit Agreement; all principal payments made shall simultaneously reduce the commitments of the Lenders under the Credit Agreement on a pro rata basis by the amount of such principal payment. b. Commencing on November 1, 2019, in addition to all other required payments due under this Agreement and the Credit Agreement, the Borrower shall increase the amount of the monthly principal amortization payment required under the Credit Agreement from Two Hundred Fifty Thousand and No/100 Dollars ($250,000) to Three Hundred Fifty Thousand and No/100 Dollars ($350,000.00) per month, which shall continue to be paid on the first business day of each month until the Loans are repaid in full. c. In addition to (and without limiting) the above-referenced payments, the Borrower shall pay to the Agent, to be applied in reduction of the outstanding Loan Exposure, the net proceeds of all capital events by the REIT, the Borrower or any of their Subsidiaries including, without limitation, all asset sales, refinancings and financings (secured, unsecured or otherwise), recapitalizations, equity issuances and other similar capital transactions (in each instance to the extent permitted under the Credit Agreement) consummated by the REIT, the Borrower or any Subsidiary thereof, with such which net proceeds being defined as the gross proceeds of such transaction less payment of all usual and customary closing costs incurred in closing such transactions and the repayment of any Indebtedness (if any) securing the subject asset(s) and, as to recapitalizations and equity issuances, after redemption or retirement of any Equity Interests being simultaneously redeemed or retired All such payments shall be due within one (1) business day of receipt of such proceeds by the REIT, the Borrower or such Subsidiary. d. Without limitation to any other payment or prepayment required under the Credit Agreement, the Borrower shall make prepayments of the Loans from time to time in the amounts necessary such that after giving effect to any such prepayments, the aggregate outstanding Loan Exposure on each of the dates listed below shall not exceed the “Maximum Principal Amount” set forth across from such date on the table below: Date Maximum Principal Amount January 31, 2020 $10,000,000 April 30, 2020 $2,000,000 June 30, 2020 $0 e. The extension option provided under §3.6 shall not be available to the Borrower and any extension notice delivered or intent to exercise such extension option prior to the date hereof is null and void.
Appears in 1 contract
Samples: Credit Agreement (Wheeler Real Estate Investment Trust, Inc.)
General Amendments. Notwithstanding any term or condition of the Credit Agreement, the First Amendment and/or the Second Amendment, the Borrower, the GuarantorGuarantors, the Agent and the Lenders hereby agree as follows:
a. From and after the date hereofExcept as expressly modified, no further Loans will be advanced amended or Letters restated herein, each of Credit issued under the Credit Agreement; all principal payments made shall simultaneously reduce the commitments of the Lenders under the Credit Agreement on a pro rata basis by the amount of such principal payment.
b. Commencing on November 1, 2019, in addition to all other required payments due under this Agreement and the Credit Agreement, the Borrower First Amendment and the Second Amendment, shall increase the amount of the remain in full force and effect.
b. The monthly principal amortization payment of $350,000 required under the Credit Agreement from Two Hundred Fifty Thousand and No/100 Dollars ($250,000as amended by Section 1b of the Second Amendment) to Three Hundred Fifty Thousand and No/100 Dollars ($350,000.00) per month, which shall continue to be paid on the first business day Business Day of each month until the Loans are repaid in full, however, the additional curtailment principal prepayments required by Section 1d of the Second Amendment shall not be required to be paid by Borrower to Lenders, it being acknowledged and agreed that the full principal amount of the Loans shall be repaid on or before the Revolving Credit Maturity Date (as such term is modified hereby).
c. In addition to (and without limiting) Without limitation of anything set forth in the above-referenced paymentsCredit Agreement, the First Amendment and/or the Second Amendment, the Borrower shall pay to the Agent, to be applied in reduction of the outstanding Loan Exposure, the net proceeds of all capital events by the REIT, the Borrower or any of their Subsidiaries including, without limitation, all asset sales, refinancings and financings (secured, unsecured or otherwise), recapitalizations, equity issuances and other similar capital transactions (in each instance to the extent permitted under the Credit Agreement) consummated by the REIT, the Borrower or any Subsidiary thereof, with such which net proceeds being defined as the gross proceeds of such transaction less payment of all usual and customary closing costs incurred in closing such transactions and the repayment of any Indebtedness (if any) securing the subject asset(s) and, as to recapitalizations and equity issuances, after redemption or retirement of any Equity Interests being simultaneously redeemed or retired All such payments shall be due within one (1) business day of receipt of such proceeds by the REIT, the Borrower or such Subsidiary.
d. Without limitation to Notwithstanding any other payment or prepayment required under provision of the Credit Agreement, including, without limitation, Section 5.4 thereof, any release of any Collateral Properties under the Borrower Credit Agreement shall make prepayments be subject to the approval of, and satisfaction of such terms and conditions imposed by, the Agent in its sole discretion; notwithstanding the foregoing, concurrently with the execution and delivery hereof and the completion of all conditions precedent set forth herein, the Agent agrees to release all Equity Interests in WHLR Xxxxxxx Gallery, LLC and WHLR Franklin Village, LLC from the lien of the Loans from time Pledge Agreement, dated January 24, 2020 by and between XXXXXXX REIT, L.P., a Virginia limited partnership, et al, and Lenders, and Lenders shall take all reasonable actions to time release all Equity Interest in the amounts necessary such that after giving effect to any such prepaymentsWHLR Xxxxxxx Gallery, the aggregate outstanding Loan Exposure on each LLC and WHLR Franklin Village, LLC within thirty (30) days of the dates listed below shall not exceed the “Maximum Principal Amount” set forth across from such effective date on the table below: Date Maximum Principal Amount January 31, 2020 $10,000,000 April 30, 2020 $2,000,000 June 30, 2020 $0
e. The extension option provided under §3.6 shall not be available to the Borrower and any extension notice delivered or intent to exercise such extension option prior to the date hereof is null and voidof this Agreement.
Appears in 1 contract
Samples: Credit Agreement (Wheeler Real Estate Investment Trust, Inc.)
General Amendments. Notwithstanding any term or condition (a) The definitions of "Fiscal Monthly Period", "Line of Credit", "Obligations" and "Termination Date" in Section 1 of the Credit AgreementFinancing Agreement are hereby amended and restated as follows: "FISCAL MONTHLY PERIOD shall mean, for Borrower and its Subsidiaries, a reference to one of the thirteen (13) four-week fiscal periods in which Borrower's and its Subsidiaries' Fiscal Year is divided; PROVIDED that the first Fiscal Monthly Period in Fiscal Year 2002 shall commence on January 2, 2002 and end on January 26, 2002, which shall constitute less than a four-week period and the Guarantorlast Fiscal Monthly Period in Fiscal Year 2004 shall commence on November 27, 2004 and end on January 1, 2005, which shall constitute more than a four-week period. "OBLIGATIONS shall mean: (a) all loans and advances made by the Agent and the Lenders hereby agree as follows:
a. From and after the date hereof, no further Loans will be advanced or Letters of Credit issued under the Credit Agreement; all principal payments made shall simultaneously reduce the commitments of the Lenders under the Credit Agreement on a pro rata basis by the amount of such principal payment.
b. Commencing on November 1, 2019, in addition to all other required payments due under this Agreement and the Credit Agreement, the Borrower shall increase the amount of the monthly principal amortization payment required under the Credit Agreement from Two Hundred Fifty Thousand and No/100 Dollars ($250,000) to Three Hundred Fifty Thousand and No/100 Dollars ($350,000.00) per month, which shall continue to be paid on the first business day of each month until the Loans are repaid in full.
c. In addition to (and without limiting) the above-referenced payments, the Borrower shall pay to the Agent, to be applied in reduction of the outstanding Loan Exposure, the net proceeds of all capital events by the REIT, the Borrower or any of their Subsidiaries to others for the Borrower's account (including, without limitation, all asset salesRevolving Loans and all payments made by the Agent, refinancings on behalf of the Lenders, with respect to Letter of Credit); (b) any and financings all other indebtedness, obligations and liabilities that is owed by the Borrower to the Agent, the Collateral Agent or any Lender and arising out of, or incurred in connection with, this Financing Agreement or any of the other Credit Documents (secured, unsecured or otherwiseincluding all Out-of-Pocket Expenses), recapitalizations, equity issuances and other similar capital transactions whether (i) now in each instance to the extent permitted under the existence or incurred by such Credit Agreement) consummated by the REIT, the Borrower or any Subsidiary thereof, with such which net proceeds being defined as the gross proceeds of such transaction less payment of all usual and customary closing costs incurred in closing such transactions and the repayment of any Indebtedness (if any) securing the subject asset(s) and, as to recapitalizations and equity issuances, after redemption or retirement of any Equity Interests being simultaneously redeemed or retired All such payments shall be due within one (1) business day of receipt of such proceeds by the REIT, the Borrower or such Subsidiary.
d. Without limitation to any other payment or prepayment required under the Credit Agreement, the Borrower shall make prepayments of the Loans Party from time to time in hereafter, (ii) secured by a Lien upon any of such Credit Party's assets or property or the amounts necessary assets or property of any other Person, (iii) such that after giving effect indebtedness is absolute or contingent, joint or several, matured or unmatured, direct or indirect, or (iv) any Credit Party is liable to any such prepaymentsthe Agent, the aggregate outstanding Loan Exposure on each Collateral Agent or any Lender for such indebtedness as principal, surety, endorser, guarantor or otherwise; (c) all indebtedness, obligations and liabilities owed by any Credit Party to the Agent, the Collateral Agent and/or the Lenders under this Financing Agreement, or any of the dates listed below shall not exceed other Credit Documents (including all Out-of-Pocket Expenses), any other agreement or arrangement now or hereafter entered into between such Credit Party, on one hand, and the “Maximum Principal Amount” set forth across from such date Agent or the Collateral Agent, on the table below: Date Maximum Principal Amount January 31other hand, 2020 $10,000,000 April 30, 2020 $2,000,000 June 30, 2020 $0
e. The extension option provided under §3.6 shall not be available relating to the transactions contemplated by this Financing Agreement; (d) indebtedness, obligations and liabilities incurred by, or imposed on, the Agent, the Collateral Agent or any Lender as a result of the environmental claims relating to a Credit Party's operations, premises or waste disposal practices or disposal sites; (e) a Credit Party's liabilities to the Agent, the Collateral Agent or any Lender as maker or endorser of any promissory note or other instrument for the payment of money; (f) the Borrower's liabilities to the Agent or any Lender under any instrument of guaranty or indemnity, or arising under any guaranty, endorsement or undertaking which the Agent or any Lender may make or issue to others for the Borrower's account, including any accommodations extended by the Agent with respect to applications for Letters of Credit, the Agent's or any Lender's acceptance of drafts or the Agent's or any Lender's endorsement of notes or other instruments for the Borrower's account and benefit; and (g) all indebtedness, obligations and liabilities owed by any Credit Party to the Agent and/or any Lender in respect of any Qualified Hedging Agreement. "TERMINATION DATE shall mean the date occurring three (3) years from the Closing Date, unless terminated in accordance with SECTION 11 of this Financing Agreement. "LINE OF CREDIT shall mean the commitment of the Lenders in an aggregate amount equal to $75,000,000 (or such lesser amount established pursuant to SECTIONS 4.1 AND/OR 4.2 of this Financing Agreement), to (a) make Revolving Loans pursuant to SECTION 3 of this Financing Agreement, and (b) assist the Borrower and in opening Letters of Credit pursuant to SECTION 5 of this Financing Agreement, PROVIDED that the aggregate amount of the Line of Credit shall be reduced dollar for dollar by the amount of the Qualifying IPA Reserve, if any, in effect from time to time pursuant to SECTION 12.10 of this Financing Agreement.
(b) Section 1 of the Financing Agreement is hereby amended by adding in appropriate alphabetical order the following new defined term: "EARLY TERMINATION DATE shall mean any extension notice delivered or intent to exercise such extension option date prior to the date hereof Termination Date on which the Company terminates this Financing Agreement. EARLY TERMINATION FEE Shall mean an amount equal to the product obtained by multiplying (a) the maximum amount of the Line of Credit TIMES (b) (i) one-half of one percent (0.50%) if the Early Termination Date occurs after first anniversary of the Closing Date but on or before the second anniversary of the Closing Date; (ii) one-quarter of one percent (0.25%) if the Early Termination Date occurs after the second anniversary of the Closing Date but prior to the Termination Date, or (iii) zero, if the Early Termination Date, if any, occurs on any other date. QUALIFIED HEDGING AGREEMENT Shall mean: (i) an Interest Rate Protection Agreement permitted pursuant to SECTION 12.10 hereof; and (ii) any other Interest Rate Protection Agreement or Currency Agreement provided by any Lender to any Credit Party to which the Required Lenders have given their written approval to be included as a Qualifying Hedging Agreement."
(c) Section 4.4(a) of the Financing Agreement as hereby amended and restated as follows:
(a) Except as otherwise specifically set forth in this Financing Agreement, all payments and cash proceeds of Collateral received by Agent shall be applied to amounts then due and payable in the following order: (1) to payment of all Out-of-Pocket Expenses and indemnification obligations owing to the Agent and/or Lenders hereunder; (2) to interest and fees on the Line of Credit; (3) to any unreimbursed drawing under any Letter of Credit (unless otherwise required by Section 9 hereof); (4) to principal payments on the Revolving Loans in accordance with Section 8.9 hereof; (5) to payment of any other Obligations which may be then due and owing (other than in respect of any Qualifying Hedging Agreements); and (6) to payment of any Obligations which may be then due and owing in respect of any Qualifying Hedging Agreements; PROVIDED that, upon the occurrence and during the continuation of any Event of Default, Agent shall have the right to apply all payments and cash proceeds of Collateral to such of the Obligations as Agent may deem advisable, and in the absence of a specific determination by Agent with respect thereto, payments and cash proceeds of Collateral shall be applied to amounts then due and payable in the following order: (1) to Out-of-Pocket Expenses and indemnification obligations owing to the Agent and/or Lenders hereunder; (2) to interest and fees on the Line of Credit; (3) to any unreimbursed drawing under any Letter of Credit (unless otherwise required by Section 9 hereof); (4) to principal payments on the Revolving Loans and/or to provide cash collateral for Letters of Credit (including, without limitation, any Minimum L/C Draw Obligations) in an amount equal to 105% of the face amount thereof; (5) to all other Obligations (other than in respect of any Qualifying Hedging Agreements); and (6) to payment of any Obligations which may be then due and owing in respect of any Qualifying Hedging Agreements;"
(d) Section 7.1.8(f) of the Financing Agreement is null hereby amended and void.restated in its entirety to read as follows:
(f) Borrower will furnish to the Agent and the Lenders, no later than thirty (30) days prior to the beginning of each Fiscal Year of the Borrower, projections for each period (assuming a thirteen period Fiscal Year) of the Consolidated Balance Sheet, the consolidated statements of profits and loss and cash flow of the Borrower, as well as projected Availability for the Borrower for such Fiscal Year;"
(e) Section 7.1.9(a) of the Financing Agreement is hereby amended and restated in its entirety to read as follows:
Appears in 1 contract
General Amendments. Notwithstanding any term or condition of the Credit Agreement, the Borrower, the Guarantor, the Agent and the Lenders hereby agree as follows:
a. From and after the date hereof, no further Loans will be advanced or Letters of Credit issued under the Credit Agreement; all principal payments made shall simultaneously reduce the commitments of the Lenders under the Credit Agreement on a pro rata basis by the amount of such principal payment.
b. Upon the execution hereof, the Borrower shall make a principal payment in the amount of $1,000,000.00.
c. Commencing on November May 1, 2019, in addition to all other required payments due under this Agreement and the Credit Agreement, the Borrower shall increase the amount of the monthly make a principal amortization payment required under the Credit Agreement from of Two Hundred Fifty Thousand and No/100 Dollars ($250,000) to Three Hundred Fifty Thousand and No/100 Dollars ($350,000.00250,000.00) per month, which shall continue to be paid month on the first business day of each month thereafter until the Loans are repaid in full.
c. d. In addition to (and without limiting) the above-referenced payments, the Borrower shall pay to the Agent, to be applied in reduction of the outstanding Loan Exposure, the net proceeds of all capital events by the REIT, the Borrower or any of their Subsidiaries including, without limitation, all asset sales, refinancings and financings (secured, unsecured or otherwise), recapitalizations, equity issuances and other similar capital transactions (in each instance to the extent permitted under the Credit Agreement) consummated by the REIT, the Borrower or any Subsidiary thereof, with such which net proceeds being defined as the gross proceeds of such transaction less payment of all usual and customary closing costs incurred in closing such transactions and the repayment of any Indebtedness (if any) securing the subject asset(s) and, as to recapitalizations and equity issuances, after redemption or retirement of any Equity Interests being simultaneously redeemed or retired All such payments shall be due within one (1) business day of receipt of such proceeds by the REIT, the Borrower or such Subsidiary.
d. e. On or before July 31, 2019, the outstanding principal balance of the Credit Agreement shall be reduced to an amount no greater than Twenty-Seven Million and No/100 Dollars ($27,000,000.00).
f. On or prior to September 30, 2019, the outstanding principal balance of the Loan Exposure under the Credit Agreement shall be reduced to the lesser of (i) Seven Million Five Hundred Thousand and No/Dollars ($7,500,000.00) or (ii) a principal amount such that the Debt Yield would be equal to twelve (12) percent.
g. Without limitation to limiting any other payment or prepayment required under of the terms and conditions of Section 3.6 of the Credit Agreement, provided the Borrower shall make prepayments has strictly complied with all of the Loans from time to time in the amounts necessary such that after giving effect to any such prepaymentsterms and conditions of this Agreement, the aggregate outstanding Loan Exposure on each of the dates listed below shall not exceed the “Maximum Principal Amount” set forth across from such date on the table below: Date Maximum Principal Amount January 31, 2020 $10,000,000 April 30, 2020 $2,000,000 June 30, 2020 $0
e. The extension option provided under §Section 3.6 shall not be remain available to the Borrower and Borrower.
h. Notwithstanding any extension notice delivered or intent to exercise such extension option prior provision of the Credit Agreement, including, without limitation, Section 5.4 thereof, any release of any Collateral Properties under the Credit Agreement shall be subject to the approval of, and satisfaction of such terms and conditions imposed by, the Agent in its sole discretion; notwithstanding the foregoing, provided no Default or Event of Default shall then be in existence, the Agent agrees to release the Collateral Property owned by (i) WHLR-LABURNUM SQUARE, LLC upon receipt of a principal payment equal to the greater of $7,550,000.00 or the net proceeds (after payment of usual and customary closing costs) from the refinancing of such Collateral Property, and (ii) WHLR-VILLAGE OF MARTINSVILLE, LLC upon receipt of a principal payment equal to the greater of $15,400,000.00 or the net proceeds (after payment of usual and customary closing costs) from the refinancing of such Collateral Property.
i. From and the date hereof is null hereof, the concept of and voidall references to “Borrowing Base Availability” shall be deemed deleted and of no further force and effect.
Appears in 1 contract
Samples: Credit Agreement (Wheeler Real Estate Investment Trust, Inc.)
General Amendments. Notwithstanding No amendment or waiver of any term provision of this Agreement or any other Loan Document, and no consent to any departure by the Parent or any other Loan Party therefrom, shall be effective unless in writing signed by the Required Lenders and the Co-Borrowers or the applicable Loan Party, as the case may be, and provided to the Administrative Agent, and each such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, that no such amendment, waiver or consent shall:
(i) waive any condition set forth in Section 4.02 as to any Credit Extension under the Revolving Credit Facility without the written consent of the Required Facility Lenders with respect to the Revolving Credit AgreementFacility;
(ii) extend or increase the Commitment of any Lender (or reinstate any Commitment terminated pursuant to Section 8.02) without the written consent of such Lender;
(iii) postpone any date fixed by this Agreement or any other Loan Document for any payment (excluding mandatory prepayments) of principal, the Borrowerinterest, the Guarantor, the Agent and fees or other amounts due to the Lenders hereby agree (or any of them) hereunder or under such other Loan Document without the written consent of each Lender entitled to such payment;
(iv) reduce the principal of, or the rate of interest specified herein on, any Loan or L/C Borrowing, or (subject to clause (D) of the second proviso to this Section 10.01) any fees or other amounts payable hereunder or under any other Loan Document, or change the manner of computation of any financial ratio (including any change in any applicable defined term) as follows:
a. From and after such financial ratio is used in determining the date hereofApplicable Rate that would result in a reduction of any interest rate on any Loan or any fee payable hereunder without the written consent of each Lender entitled to such amount; provided, no further Loans will however, that only the consent of the Required Lenders shall be advanced necessary to amend the definition of “Default Rate” or Letters to waive any obligation of the Co-Borrowers to pay interest or Letter of Credit issued under Fees at the Credit AgreementDefault Rate; all principal (v) change (A) Section 2.13 or Section 8.03 in a manner that would alter the pro rata sharing of payments made shall simultaneously reduce required thereby without the commitments written consent of each Lender affected thereby or (B) the order of application of any reduction in the Commitments or any prepayment of Loans among the Facilities from the application thereof set forth in the applicable provisions of Section 2.05(b) or 2.06(c), in any manner that materially and adversely affects the Lenders under a Facility without the Credit Agreement on a pro rata basis by the amount of such principal payment.
b. Commencing on November 1, 2019, in addition to all other required payments due under this Agreement and the Credit Agreement, the Borrower shall increase the amount written consent of the monthly principal amortization payment required under the Credit Agreement from Two Hundred Fifty Thousand and No/100 Dollars ($250,000) Required Facility Lenders with respect to Three Hundred Fifty Thousand and No/100 Dollars ($350,000.00) per month, which shall continue to be paid on the first business day of each month until the Loans are repaid in full.
c. In addition to (and without limiting) the above-referenced payments, the Borrower shall pay to the Agent, to be applied in reduction of the outstanding Loan Exposure, the net proceeds of all capital events by the REIT, the Borrower or any of their Subsidiaries including, without limitation, all asset sales, refinancings and financings (secured, unsecured or otherwise), recapitalizations, equity issuances and other similar capital transactions (in each instance to the extent permitted under the Credit Agreement) consummated by the REIT, the Borrower or any Subsidiary thereof, with such which net proceeds being defined as the gross proceeds of such transaction less payment of all usual and customary closing costs incurred in closing such transactions and the repayment of any Indebtedness (if any) securing the subject asset(s) and, as to recapitalizations and equity issuances, after redemption or retirement of any Equity Interests being simultaneously redeemed or retired All such payments shall be due within one (1) business day of receipt of such proceeds by the REIT, the Borrower or such Subsidiary.
d. Without limitation to any other payment or prepayment required under the Credit Agreement, the Borrower shall make prepayments of the Loans from time to time in the amounts necessary such that after giving effect to any such prepayments, the aggregate outstanding Loan Exposure on each of the dates listed below shall not exceed the “Maximum Principal Amount” set forth across from such date on the table below: Date Maximum Principal Amount January 31, 2020 $10,000,000 April 30, 2020 $2,000,000 June 30, 2020 $0
e. The extension option provided under §3.6 shall not be available to the Borrower and any extension notice delivered or intent to exercise such extension option prior to the date hereof is null and void.Facility;
Appears in 1 contract
