THIRD AMENDMENT TO LOAN AGREEMENT AND OTHER LOAN DOCUMENTS
Exhibit 4.4
THIRD AMENDMENT TO LOAN AGREEMENT AND OTHER LOAN DOCUMENTS
Dated as of March 14, 2018
Between
EACH OF THE ENTITIES LISTED ON SCHEDULE I ATTACHED HERETO,
individually and/or collectively, as the context may require, as Borrower
and
RVI CMA HOLDER LLC, as additional obligor
and
COLUMN FINANCIAL, INC., JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, and XXXXX FARGO BANK, NATIONAL ASSOCIATION,
collectively, as Lender
THIRD AMENDMENT TO LOAN AGREEMENT AND OTHER LOAN DOCUMENTS
THIS THIRD AMENDMENT TO LOAN AGREEMENT AND OTHER LOAN DOCUMENTS, dated as of March 14, 2018 (this “Amendment”), is by and among COLUMN FINANCIAL, INC., having an address at 00 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (“CF”), JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, having an address at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (“JPM”) and XXXXX FARGO BANK, NATIONAL ASSOCIATION, having an address at Xxxxx Fargo Center, 1901 Xxxxxxxx Street, 2nd Floor, MAC A0227-020, Xxxxxxx, Xxxxxxxxxx 00000 (“Xxxxx”; and together with CF and JPM and their respective successors and/or assigns, collectively “Lender”), EACH OF THE ENTITIES LISTED ON SCHEDULE I ATTACHED HERETO, each having its principal place of business at 0000 Xxxxxxxxxx Xxxxxxx, Xxxxxxxxx, XX 00000 (individually and/or collectively, as the context may require, together with their respective successors and/or assigns, “Borrower”) and RVI CMA HOLDER LLC, a Delaware limited liability company having its principal place of business at 0000 Xxxxxxxxxx Xxxxxxx, Xxxxxxxxx, XX 00000 (“Additional Obligor”). All capitalized terms not defined herein shall have the respective meanings set forth in the Loan Agreement (as defined below).
W I T N E S S E T H:
WHEREAS, Lender has made a loan in the original principal amount of One Billion Three Hundred Fifty Million Dollars ($1,350,000,000) (the “Loan”) to Borrower pursuant to that certain Loan Agreement, dated as of February 14, 2018 (the “Original Loan Agreement”), as amended by that certain First Amendment to Loan Agreement, dated as of February 27, 2018 (the “First Amendment to Loan Agreement”) by and among Borrower, Lender and Additional Obligor, and as further amended by that certain Second Amendment to Loan Agreement, dated as of March 6, 2018 (the “Second Amendment to Loan Agreement”), by and among Borrower, Lender and Additional Obligor, which Loan is evidenced by the Original Loan Agreement, the First Amendment to Loan Agreement, the Second Amendment to Loan Agreement and the other Loan Documents (as defined in the Original Loan Agreement); and
WHEREAS, Borrower, Lender and Additional Obligor now desire to amend the Original Loan Agreement (the Original Loan Agreement, as amended by the First Amendment to Loan Agreement, the Second Amendment to Loan Agreement and this Amendment, and as the same may be further amended, replaced, restated, supplemented or otherwise modified from time to time, the “Loan Agreement”) and certain other Loan Documents, each as more specifically set forth herein.
NOW, THEREFORE, in consideration of the agreements set forth in this Amendment and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties hereto, the parties hereto hereby agree as follows.
Section I.Modification to Original Loan Agreement.
(i)Section 1.1 of the Original Loan Agreement is hereby amended to delete the definition of “LIBOR Spread” in its entirety and add in the appropriate alphabetical order the following definition of “LIBOR Spread”:
““LIBOR Spread” shall mean, with respect to each Component of the Loan, as the same may be reallocated pursuant to Section 11.1(b) hereof:
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(a) |
Component A, 1.107000000%; |
|
(b) |
Component B, 1.757000000%; |
|
(c) |
Component C, 2.057000000%; |
|
(d) |
Component D, 5.373735028%; |
|
(e) |
Component E, 4.507000000%; |
|
(f) |
Component F, 6.007000000%; |
|
(g) |
Component G, 7.507000000%; and |
|
(h) |
Component HRR, 9.507000000%; |
the LIBOR Spread shall be increased by (x) 25 basis points (0.25%) from and after the first day of the first Extension Option and (y) an additional 25 basis points (0.25%) from and after the first day of the second Extension Option in accordance with Section 2.9(g), without duplication of any increase with respect to the Alternate Rate Spread or the Prime Rate Spread in accordance with Section 2.9(g).”
(ii)Section 2.11 of the Original Loan Agreement is hereby deleted in its entirety and the following inserted in lieu thereof:
“Section 2.11. Components of the Loan. For the purposes of computing interest payable from time to time on the principal amount of the Loan and certain other computations set forth herein, the principal balance of the Loan shall be divided into Components A through HRR. The principal amount of the Components shall be as follows:
|
COMPONENT |
PRINCIPAL AMOUNT |
|
A |
$524,000,000 |
|
B |
$159,200,000 |
|
C |
$137,900,000 |
|
D |
$121,900,000 |
|
E F |
$165,500,000 $160,300,000 |
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(iii)Section 4.12(a)(vi) of the Original Loan Agreement is hereby deleted in its entirety and the following inserted in lieu thereof:
“(vi)(A) prior to a Securitization, within three (3) Business Days of Lender’s request therefor, (B) during a Trigger Period, no later than fifteen (15) days after and as of the end of each calendar month, and (C) at all other times no later than forty-five (45) days after and as of the end of each calendar quarter, a calculation of the then current Debt Yield, together with such back-up information as Lender shall require.”
(iv)The Original Loan Agreement is hereby amended by deleting Schedule 8.6-A attached thereto and inserting in lieu thereof the schedule attached hereto identified as “Schedule 8.6-A”.
Section II.Amendment to Other Loan Documents. Each of the Loan Documents (other than the Loan Agreement) is hereby amended such that (i) each reference in any of the Loan Documents (other than the Loan Agreement) to the defined term “LIBOR Spread”, which defined term has been modified pursuant to this Amendment shall be deemed to be a reference to such defined term as so modified and (ii) each reference to the Loan Agreement shall mean the Original Loan Agreement, as modified pursuant to the terms of this Agreement.
Section III.Reaffirmation of Guaranty. In connection with this Amendment, Sponsor hereby:
(a)Consents to and acknowledges this Amendment and acknowledges and agrees that this Amendment shall not impair, reduce or adversely affect the nature of the obligations of Guarantor under the Guaranty.
(b)Warrants and represents that, to its knowledge, there are no defenses, offsets or counterclaims existing with respect to its obligations under the Guaranty.
(c)Acknowledges that the Guaranty and the obligations of Guarantor contained in the Guaranty are continuing and in full force and effect.
(d)Reaffirms the Guaranty and its obligations thereunder, and acknowledges that this reaffirmation of the Guaranty is for the benefit of Lender.
Section IV.Reaffirmation of Pledgor Guaranty. In connection with this Amendment, Pledgor hereby:
(a)Consents to and acknowledges this Amendment and acknowledges and agrees that this Amendment shall not impair, reduce or adversely affect the nature of the obligations of Pledgor under the Pledgor Guaranty.
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(b)Warrants and represents that, to its knowledge, there are no defenses, offsets or counterclaims existing with respect to its obligations under the Pledgor Guaranty.
(c)Acknowledges that the Pledgor Guaranty and the obligations of Pledgor contained in the Pledgor Guaranty are continuing and in full force and effect.
(d)Reaffirms the Pledgor Guaranty and its obligations thereunder, and acknowledges that this reaffirmation of the Pledgor Guaranty is for the benefit of Lender.
Section V.Reaffirmation of Environmental Indemnity. In connection with this Amendment, each of Borrower and Guarantor hereby:
(a)Consents to and acknowledges this Amendment and acknowledges and agrees that this Amendment shall not impair, reduce or adversely affect the nature of the obligations of Borrower or Guarantor under the Environmental Indemnity.
(b)Warrants and represents that, to its knowledge, there are no defenses, offsets or counterclaims existing with respect to its obligations under the Environmental Indemnity.
(c)Acknowledges that the Environmental Indemnity and the obligations of Borrower and Guarantor contained in the Environmental Indemnity are continuing and in full force and effect.
(d)Reaffirms the Environmental Indemnity and its obligations thereunder, and acknowledges that this reaffirmation of the Environmental Indemnity is for the benefit of Lender.
Section VI.No Waiver. The execution, delivery and effectiveness of this Amendment shall not, except to the extent expressly provided herein, operate as a waiver of any right, power or remedy of any of Lender, Borrower or Additional Obligor under the Loan Agreement or any of the other Loan Documents, nor constitute a waiver of any provision of the Loan Agreement or any of the other Loan Documents by any of the parties hereto.
Section VII.No Presumption Against Party Drafting Amendment. Should any provision of this Agreement require judicial interpretation, it is agreed that a court interpreting or construing the same shall not apply a presumption that the terms hereof shall be more strictly construed against any party by reason of the rule of construction that a document is to be construed more strictly against the party who itself or through its agent prepared or drafted the same, it being agreed that all parties to this Amendment participated in the preparation hereof.
Section VIII.Successors and Assigns. This Amendment shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.
Section IX.Ratification. Borrower, Lender and Additional Obligor hereby ratify and confirm the Loan Agreement, as modified hereby. Except as modified and amended by this Amendment, the Loan, the Loan Agreement and the other Loan Documents and the
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respective obligations of Lender, Borrower and Additional Obligor thereunder shall be and remain unmodified and in full force and effect.
Section X.No Further Modification. No further modification, amendment, extension, discharge, termination or waiver hereof shall be effective unless the same shall be in a writing signed by the party against whom enforcement is sought, and then such waiver or consent shall be effective only in the specific instance, and for the purpose, for which given.
Section XI.Governing Law. This Amendment shall be construed and enforced in accordance with the laws of the State of New York (without regard to the principles of conflicts of laws). If any provision hereof is not enforceable, the remaining provisions of this Amendment shall be enforced in accordance with their terms.
Section XII.Counterparts. This Amendment may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument.
Section XIII.References to Loan Agreement. All references in the Loan Documents to the Loan Agreement shall mean the Loan Agreement as hereby modified herein.
Section XIV.Entire Agreement. This Amendment constitutes the entire agreement between Borrower, Additional Obligor and Lender with respect to subject matter hereof and supersedes all other prior agreements and understandings, both written and oral, among the parties with respect to the subject matter hereof.
Section XV.Incorporation of Recitals; Defined Terms. The recitals hereto are hereby incorporated into this Amendment as if fully set forth herein. All capitalized terms used herein and not otherwise defined herein shall have the respective meanings set forth in the Loan Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their duly authorized representatives, all as of the day and year first above written.
BORROWER:
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|
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DDR TUCSON SPECTRUM I LLC |
DDR TUCSON SPECTRUM II LLC
DDR TUCSON SPECTRUM III LLC
DDR MARINER SQUARE LLC
DDR MARINER SQUARE II LLC
XX XX GREEN RIDGE LLC
DDR DOUGLASVILLE PAVILION LLC
RVT NEWNAN CROSSING LLC
RVT SILVER SPRING SQUARE LLC
RVT HENDERSONVILLE TN LLC
RVT XXXXXXXX COMMONS LLC
RVT WEST ALLIS CENTER LLC
BRE DDR RIVERDALE VILLAGE INNER RING LLC
BRE DDR RIVERDALE VILLAGE OUTER RING LLC
DDRA MAPLE GROVE CROSSING LLC
RVT XXXXXXX BOULEVARD SHOPPES LLC
RVT TEQUESTA SHOPPES LLC
RVT EAST XXXXX COMMONS LLC
RVT WRANGLEBORO CONSUMER SQUARE LLC
RVT NOBLE TOWN CENTER LLC
RVT XXXX CROSSING LLC
RVT HOMESTEAD PAVILION LLC
RVT LAKE XXXXXX SQUARE LLC
BRE DDR BROOKFIELD LLC
BRE DDR XXXXX DEER MARKET LLC
BRE DDR XXXXX DEER CENTER LLC
RVT PEACH STREET SQUARE i LLC
RVT ERIE MARKETPLACE LLC
RVT PAVILION AT SHOPPERS WORLD LLC
BRE DDR MARKETPLACE AT TOWNE CENTER LLC
BRE DDR XXXXXXXX COURT LLC
DDR XXXXXXX STATION LLC
XX XX UPTOWN SOLON LLC
DDR WALKS AT HIGHWOOD PRESERVE I LLC
DDR SEABROOK LLC
BRE DDR MIDWAY MARKETPLACE LLC
BRE DDR GRANDVILLE MARKETPLACE LLC
DDR WILLOWBROOK PLAZA LLC
BRE DDR GREAT NORTHERN LLC
DDR MILLENIA PLAZA LLC
DDR I-DRIVE LLC
DDR CROSSROADS CENTER LLC
XX XX BIG OAKS LLC
DDR GUAYAMA WM LLC, S.E.
DDR SENORIAL LLC, S.E.
DDR RIO HONDO LLC, S.E.
DDR ATLANTICO LLC, S.E.
DDR XXXXXXX LLC, S.E.
DDR NORTE LLC, S.E.
DDR ESCORIAL LLC, S.E.
DDR DEL SOL LLC, S.E.
DDR ISABELA LLC, S.E.
DDR CAYEY LLC, S.E.
DDR XXXX BAJA LLC, S.E. AND
DDR PALMA REAL LLC, S.E.,
each a Delaware limited liability company
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By: /s/ Xxxxxxx Xxxxxxxx |
Name: Xxxxxxx Xxxxxxxx
Title: Chief Financial Officer
DDR/1ST CAROLINA CROSSINGS SOUTH LP, a Delaware limited partnership
By: RVT CAROLINA CROSSINGS GP LLC, a
Delaware limited liability company, its general partner
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By: /s/ Xxxxxxx Xxxxxxxx |
Name: Xxxxxxx Xxxxxxxx
Title: Chief Financial Officer
[SIGNATURES CONTINUE ON THE FOLLOWING PAGE]
RVI CMA HOLDER LLC, a Delaware limited liability company
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By: /s/ Xxxxxxx Xxxxxxxx |
Name: Xxxxxxx Xxxxxxxx
Title: Chief Financial Officer
[SIGNATURES CONTINUE ON THE FOLLOWING PAGE]
COLUMN FINANCIAL, INC., a Delaware corporation
By: /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: Authorized Signatory
[SIGNATURES CONTINUE ON THE FOLLOWING PAGE]
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Vice President
[SIGNATURES CONTINUE ON THE FOLLOWING PAGE]
XXXXX FARGO BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Managing Director
[SIGNATURES CONTINUE ON THE FOLLOWING PAGE]
The undersigned hereby acknowledges and consents to Sections III and V of this First Amendment to Loan Agreement and Other Loan Documents.
SPONSOR:
RETAIL VALUE INC., an Ohio corporation
By: /s/ Xxxxxxx Xxxxxxxx
Name: Xxxxxxx Xxxxxxxx
Title: Chief Financial Officer
[SIGNATURES CONTINUE ON THE FOLLOWING PAGE]
The undersigned hereby acknowledges and consents to Section IV of this First Amendment to Loan Agreement and Other Loan Documents.
PLEDGOR:
RVT PR MEZZ BORROWER I LLC, a Delaware limited liability company
By: /s/ Xxxxxxx Xxxxxxxx
Name: Xxxxxxx Xxxxxxxx
Title: Chief Financial Officer
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