THIRD LOAN DOCUMENTS MODIFICATION AGREEMENT
Exhibit 10.8.d
THIRD LOAN DOCUMENTS MODIFICATION AGREEMENT
THIS THIRD LOAN DOCUMENTS MODIFICATION AGREEMENT (this “Third Amendment”) is made as of the 13th day of December, 2021, by and between EXCHANGERIGHT REAL ESTATE, LLC, a California limited liability company, whose address is 0000 X. Xxxxxxxx Xxxxxxxxx, Xxxxx 000 (“Borrower”), AMERIS BANK, a Georgia banking corporation, whose address is 0000 Xxxxxxxx Xxxx X.X., Xxxxx 000, Xxxxxxx, Xxxxxxx 00000, Attn: Xxxxxxx Xxxxxxx (hereinafter referred to as “Lender”), XXXXX XXXXXX, a Minnesota resident (“Xxxxxx”), XXXXXX XXXXXXXXX, a California resident (“Xxxxxxxxx”), XXXXXX XXXXXX, a California resident (“Xxxxxx”; Xxxxxx, Xxxxxx and Xxxxxxxxx are each referred to herein individually and collectively as the context may require, an “Individual Guarantor”), EXCHANGERIGHT ESSENTIAL INCOME STRATEGY PROPERTIES 3, LLC, a Delaware limited liability company, EXCHANGERIGHT NET-LEASED PORTFOLIO 53 DST, a Delaware statutory trust (each of the foregoing a “Subsidiary Guarantor”; Individual Guarantor and each Subsidiary Guarantor are each referred to herein individually and collectively as the context may require as a “Guarantor”).
BACKGROUND STATEMENT
Borrower and Lender are parties to that certain Loan Agreement, dated May 19, 2021, (as amended, restated, supplemented or otherwise modified heretofore or hereinafter from time to time, the “Loan Agreement”; capitalized terms used and not defined herein shall have the meanings assigned to them in the Loan Agreement). The Loan is evidenced by certain Delayed Draw Term Notes, executed by Xxxxxxxx in favor of Xxxxxx, including, without limitation that certain Delayed Draw Term Note in the original principal amount of $29,100,000 (the “Effingham Delayed Draw Term Note”).
Certain obligations of Borrower provided for in the Loan Documents are guaranteed by Individual Guarantor pursuant to that certain Guaranty of Payment and Performance dated May 19, 2021 (as amended, restated, supplemented or otherwise modified heretofore or hereinafter from time to time, the “Original Guaranty”). Certain obligations of Borrower provided for in the Loan Documents are guaranteed by Subsidiary Guarantor pursuant to certain Joinders to Guaranty of Payment and Performance and Reaffirmation of Loan Agreement (each as amended, restated, supplemented or otherwise modified heretofore or hereinafter from time to time, a “Joinder to Guaranty”; the Original Guaranty and each Joinder to Guaranty are each referred to herein individually and collectively as the context may require as a “Guaranty”).
Prior to the date hereof, certain obligations of Xxxxxxxx provided for in the Loan Documents were guaranteed by EXCHANGERIGHT NET-LEASED PORTFOLIO 50 DST, a Delaware statutory trust (“Prior Subsidiary Guarantor”), until Prior Subsidiary Guarantor’s obligations were paid off on or about September 13, 2021, following the sale of the Property located at 0000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxxx, XX 00000.
As of the date hereof, Xxxxxxxx and Xxxxxx have agreed to modify the Loan Agreement, the Guaranty and the other Loan Documents, to among other things, increase the amount of the Loan on an interim basis from $85,000,000 to $150,000,000 in the manner described below. Guarantor (other than Prior Subsidiary Guarantor) has agreed to reaffirm the Guaranty, and the parties are entering into this Third Amendment to evidence their agreement.
AGREEMENT
FOR AND IN CONSIDERATION of the sum of Ten and No/100 Dollars ($10.00), the foregoing recitals, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto do hereby agree as follows:
1. Amendment of Loan Agreement. The terms of the Loan Agreement are hereby modified and amended, effective as of the date hereof, by:
(a) Amending and restating the first paragraph of the recitals as follows:
As of the original date of this Loan Agreement, Xxxxxxxx had applied to Lender for a loan in the principal amount of $40,000,000. On or around June 8, 2021, Borrower applied to Lender to increase such loan to the principal amount of $60,000,000, as of July 8, 2021, Borrower applied to Lender to further increase such loan to the principal amount of $85,000,000, and as of December [13], 2021, Borrower applied to Lender to further increase such loan on an interim basis to the principal amount of $150,000,000, which amount shall be reduced as further provided for herein. Xxxxxxxx and Xxxxxx have entered into this Loan Agreement to establish the terms and conditions of the disbursement of the Loan and the rights and obligations of Borrower with respect to the Loan and the Properties (as defined herein).
(b) Adding the following definitions to Section 1.1 in the appropriate alphabetical order:
“Delayed Draw Term Note Fee – Third Amendment Date Properties” shall mean a fee in the amount of 0.40% of the principal amount of each Delayed Draw Term Note executed for a Third Amendment Date Property.
“Third Amendment Date” shall mean December 13, 2021.
“Third Amendment Date Increased Loan Amount” shall mean an amount up to $150,000,000.
“Third Amendment Date Properties” shall mean the Properties listed on Schedule IV attached hereto, acquired or to be acquired by the applicable Subsidiary Guarantor on or after the Third Amendment Date.
“Third Amendment Date Properties Reduction Amount” shall mean the amount listed in the “Delayed Draw Term Loan Amount” column on Schedule IV attached hereto.
(c) Amending and restating the definition of “Loan” as follows: “Loan” means:
(1) On the Third Amendment Date, a revolving loan in an amount of $150,000,000, to be evidenced by certain Delayed Draw Term Notes;
(2) Following the sale of any Third Amendment Date Property, a revolving loan in an amount of $150,000,000, to be evidenced by certain Delayed Draw Term Notes, minus the corresponding Third Amendment Date Properties Reduction Amount (which Third Amendment Date Properties Reduction Amount shall be paid by Borrower to Lender upon the sale or refinancing with another lender of such Third Amendment Date Property, and each date of any such payment being referred to as a “Loan Reduction Date”);
(3) On the earlier of (1) the sale of all four (4) of the Third Amendment Date Properties or (2) May 31, 2022, a revolving loan in an amount of $85,000,000, to be evidenced by certain Delayed Draw Term Notes.
Notwithstanding anything herein to the contrary, as of each Loan Reduction Date, no action of Lender shall be required to reduce the Loan; such reduction down to the applicable amount shall be automatic and occur at 2 such time.
(d) Amending and restating Section 2.1 as follows:
2.1 Agreement to Lend and Borrow. Subject to the terms and conditions set forth in this Loan Agreement and the other Loan Documents, Xxxxxxxx agrees to borrow from Xxxxxx, and Xxxxxx hereby agrees to lend to Borrower, the Loan. Borrower and Xxxxxx acknowledge and agree that the Loan is a revolving credit facility, and Borrower shall have the right to borrow, repay and re-borrow principal sums hereunder that are evidenced by separate Delayed Draw Term Notes, but in no event shall the aggregate principal amount outstanding under all Delayed Draw Term Notes exceed $150,000,000. The advances made by Xxxxxx hereunder shall constitute advances of principal under each Delayed Draw Term Note, as and when such advances are made. The Loan, together with accrued interest thereon, and all other Obligations of Borrower under this Loan Agreement and the other Loan Documents, shall at all times be secured by the Security Documents without any further action on the part of Lender or any other Person.
(e) Adding Schedule IV in the form attached hereto as Schedule IV.
2. Amendment of Original Guaranty. The terms of the Original Guaranty are hereby modified and amended, effective as of the date hereof, by amending and restating the first paragraph of the recitals as follows:
WHEREAS, pursuant to that certain Loan Agreement dated as of the date hereof between EXCHANGERIGHT REAL ESTATE, LLC, a California limited liability company (the “Borrower”) and Lender (together with all renewals, amendments, modifications, increases and extensions thereof, the “Loan Agreement”), Xxxxxx has agreed to make certain revolving delayed draw term loans to Borrower as provided for in the Loan Agreement (the “Loan”). The Loan is evidenced by certain Delayed Draw Term Notes from Borrower payable to the order of Lender (the “Notes”);
3. Amendment of Loan Documents. The terms of each other Loan Document are hereby modified and amended, effective as of the date hereof, by replacing all references to “$85,000,000” with “$150,000,000” and by replacing all references to “EIGHTY FIVE MILLION AND NO/100 DOLLARS” with “ONE HUNDRED FIFTY MILLION AND NO/100 DOLLARS. The terms of each other Loan Document shall be modified and amended, effective as of the applicable Loan Reduction Date, by replacing all references to “$150,000,000” with the amount resulting by subtracting from $150,000,000 the amount of the applicable Third Amendment Date Properties Reduction Amount and by replacing all references to “ONE HUNDRED FIFTY MILLION AND NO/100 DOLLARS” with such amount in words.
4. Delayed Draw Term Note. Notwithstanding anything in the Loan Agreement to the contrary, Borrower shall pay the principal of and accrued interest on the Effingham Delayed Draw Term Note (for which Delayed Draw Term Note Lender has agreed to loan 50% or less of the contract price for the Property located at 000 Xxxx Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx):
(a) Commencing on January 5, 2022, and on the fifth (5th) day of each successive calendar month thereafter for four (4) months, Borrower shall pay to Lender all accrued but unpaid interest on the outstanding principal of the Delayed Draw Term Note (i.e., four (4) months interest only);
(b) On the Delayed Draw Term Note Maturity Date, Borrower shall pay to Lender the entire principal amount outstanding under the Effingham Delayed Draw Term Note, together with all accrued but unpaid interest thereon and any other charges due hereunder;
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(c) Borrower shall have the option to extend the term under the Effingham Delayed Draw Term Note once for a period of one (1) month, provided each Delayed Draw Term Note Extension Condition has been satisfied;
For the avoidance of doubt, it is acknowledged and agreed that the principal amount outstanding under the Effingham Delayed Draw Term Note shall bear interest at the Prime Rate, even though payments of principal and interest will be calculated at a fixed rate of four percent (4%).
5. Ratification; Fees and Expenses. Except as herein expressly modified or amended, all the terms and conditions of the Loan Documents are hereby ratified, affirmed, and approved. In consideration of Xxxxxx agreeing to this Third Amendment as herein provided, Xxxxxxxx agrees to pay all fees and expenses incurred in connection with this Third Amendment.
6. Reaffirmation of Guaranty. Guarantor hereby ratifies, confirms, reaffirms and covenants that the Guaranty which it has executed is validly existing and binding against it under the terms of such Guaranty, as amended by this Third Amendment. Guarantor hereby reaffirms and restates, as of the date hereof, all covenants, representations and warranties set forth in the Guaranty and specifically reaffirms that its obligations under the Guaranty extend and apply for all purposes to the Loan Documents as amended herein, including, without limitation, the increase in the Loan from $85,000,000 to $150,000,000.
7. No Defenses; Release. For purposes of this Paragraph 7, the terms “Borrower/Guarantor Parties” and “Lender Parties” shall mean and include Borrower, Guarantor and Lender, respectively, and each of their respective predecessors, successors and assigns, and each past and present, direct and indirect, parent, subsidiary and affiliated entity of each of the foregoing, and each past and present employee, agent, attorney-in-fact, attorney-at-law, representative, officer, director, shareholder, partner and joint venturer of each of the foregoing, and each heir, executor, administrator, successor and assign of each of the foregoing; references in this paragraph to “any” of such parties shall be deemed to mean “any one or more” of such parties; and references in this sentence to “each of the foregoing” shall mean and refer cumulatively to each party referred to in this sentence up to the point of such reference. As of the date hereof, Borrower and Guarantor hereby acknowledge, represent and agree that Borrower and Guarantor have no defenses, setoffs, claims, counterclaims or causes of action of any kind or nature whatsoever with respect to (i) the Note, the Guaranty and the other Loan Documents or the indebtedness evidenced and secured thereby, (ii) any other documents or instruments evidencing, securing or in any way relating to the Loan, (iii) the administration or funding of the Loan, or (iv) any other transaction, matter or occurrence between any of the Borrower/Guarantor Parties and any Lender Parties with respect to the Loan or the Loan Documents including any acts or omissions of any Lender Parties with respect to the Loan or the Loan Documents (all of said defenses, setoffs, claims, counterclaims or causes of action being hereinafter referred to as “Loan Related Claims”). To the extent that Borrower or Guarantor may be deemed to have any Loan Related Claims, Borrower and Guarantor (a) do hereby expressly waive, release and relinquish any and all such Loan Related Claims, whether or not known to or suspected by Borrower and Guarantor and (b) shall not institute or cause to be instituted any legal action or proceeding of any kind based upon any Loan Related Claims. Borrower hereby reaffirms and restates, as of the date hereof, all covenants, representations and warranties set forth in the Loan Documents.
8. No Novation. Borrower, Guarantor and Lender hereby acknowledge and agree that this Third Amendment shall not constitute a novation of the indebtedness evidenced by the Loan Documents, and further that the terms and provisions of the Loan Documents shall remain valid and in full force and effect except as may be hereinabove modified and amended.
9. No Waiver or Implication. Borrower and Guarantor hereby agree that nothing herein shall constitute a waiver by Lender of any default, whether known or unknown, which may exist under the Note or any other Loan Document. Borrower and Guarantor hereby further agree that no action, inaction or agreement by Lender, including, without limitation, any extension, indulgence, waiver, consent or agreement of modification which may have occurred or have been granted or entered into (or which may be occurring or be granted or entered into hereunder or otherwise) with respect to nonpayment of the Loan or any portion thereof,
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or with respect to matters involving security for the Loan, or with respect to any other matter relating to the Loan, shall require or imply any future extension, indulgence, waiver, consent or agreement by Lender. Borrower and Guarantor hereby acknowledge and agree that Xxxxxx has made no agreement, and is in no way obligated, to grant any future extension, indulgence, waiver or consent with respect to the Loan or any matter relating to the Loan.
10. No Release of Collateral. Borrower and Guarantor further acknowledge and agree that this Third Amendment shall in no way occasion a release of any collateral held by Xxxxxx as security to or for the Loan, and that all collateral held by Xxxxxx as security to or for the Loan shall continue to secure the Loan.
11. Successors and Assigns. This Third Amendment shall be binding upon and inure to the benefit of Xxxxxxxx, Guarantor and Xxxxxx, and their respective heirs, successors and assigns, whether voluntary by act of the parties or involuntary by operation of law.
12. Document Protocols. This Third Amendment is governed by the Document Protocols set forth in Article 9 of the Loan Agreement, which are specifically incorporated herein as if fully set forth herein.
[Signatures appear on the following pages]
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IN WITNESS WHEREOF, this Third Amendment has been duly executed under seal by Xxxxxxxx, Guarantor, and Xxxxxx, as of the day and year first above written.
| BORROWER: | ||
| EXCHANGERIGHT REAL ESTATE, LLC a California limited liability company | ||
| By: | /S/ XXXXXX XXXXXX | |
| Name: | Xxxxxx Xxxxxx | |
| Title: | Managing Member | |
| (SEAL) | ||
[Signatures continue on the following page]
| GUARANTOR: | ||||||||
| /S/ XXXXX XXXXXX | ||||||||
| XXXXX XXXXXX | ||||||||
| /S/ XXXXXX XXXXXXXXX | ||||||||
| XXXXXX XXXXXXXXX | ||||||||
| /S/ XXXXXX XXXXXX | ||||||||
| XXXXXX XXXXXX | ||||||||
| EXCHANGERIGHT NET LEASED PORTFOLIO 53 DST |
EXCHANGERIGHT ESSENTIAL INCOME | |||||||
| STRATEGY PROPERTIES 3, LLC, | ||||||||
| a Delaware limited liability company | ||||||||
| By: ExchangeRight Asset Management, LLC a California limited liability company, its Manager |
By: | /S/ XXXXXX XXXXXX | ||||||
| Xxxxxx Xxxxxx, authorized person | ||||||||
| By: | ExchangeRight Real Estate, LLC | (SEAL) | ||||||
| a California limited liability company, | ||||||||
| its sole member | ||||||||
| By: | /S/ XXXXXX XXXXXX |
|||||||
| Name: Xxxxxx Xxxxxx | ||||||||
| Title: Managing Member | ||||||||
| (SEAL) | ||||||||
[Signatures continue on the following page]
| LENDER: | ||
| AMERIS BANK, | ||
| a Georgia banking corporation | ||
| By: | /S/ XXXXXXX XXXXXXX | |
| Name: | Xxxxxxx Xxxxxxx | |
| Title: | Senior Vice President | |
| (SEAL) | ||
Schedule IV
| Tenant Name |
Property Address |
Delayed Draw Term | ||
| Xxxxxxx Xxxxxxxx |
000 Xxxx Xxxxxx Xxxxxx Xxxxxxxxx, XX 00000 |
$29,100,000 | ||
| CVS |
0000 Xxx Xxxxxx Xxxxxx, XX 00000 |
$3,646,000 | ||
| CVS |
0000 Xxxxxxxx Xxxxxxxx Xxxxx Xxxxxxxxx, XX 00000 |
$3,492,000 | ||
| Price Chopper |
00 Xxxxxxx Xxxxxx Xxxxxxxxx, XX 00000 |
$20,034,000 |
