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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
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Date of Report (Date of earliest event reported): March 22, 2022 |
BROAD STREET REALTY, INC.
(Exact name of Registrant as Specified in Its Charter)
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Delaware |
001-09043 |
36-3361229 |
(State or Other Jurisdiction
of Incorporation) |
(Commission File Number) |
(IRS Employer
Identification No.) |
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7250 Woodmont Ave, Suite 350 |
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Bethesda, Maryland |
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20814 |
(Address of Principal Executive Offices) |
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(Zip Code) |
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Registrant’s Telephone Number, Including Area Code: 301 828-1200 |
(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:
☐Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
☐Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
☐Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
☐Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b) of the Act:
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Title of each class
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Trading
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Name of each exchange on which registered
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None |
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N/A |
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N/A |
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.
On March 22, 2022, Broad Street Realty, Inc. (the “Company”) and certain of its subsidiaries entered into a Modification Agreement and Allonge and Modification Agreements (collectively, the “Modification Agreements”) related to the Loan Agreement, dated as of December 27, 2019 and amended on May 10, 2020 (as amended, the “Loan Agreement”), by and among MVB Bank, Inc. (“MVB”), as lender, the Company, Broad Street Operating Partnership, LP and Broad Street Realty, LLC, as borrowers, and BSV Cromwell Land LLC, a subsidiary of the Company, and Michael Z. Jacoby, the Company’s chairman and chief executive officer, as guarantors.
As previously disclosed, the Loan Agreement provides for a $6.5 million loan, (i) consisting of a $4.5 million term loan (the “MVB Term Loan”) and (ii) a $2.0 million revolving credit facility (the “MVB Credit Facility”), each of which was scheduled to mature on December 27, 2022. The Modification Agreements, among other things, (i) extend the maturity date of the MVB Term Loan and the MVB Credit Facility to June 27, 2023, (ii) provide for a $2.0 million term loan (the “Second MVB Term Loan”) and (iii) modify the EBITDA to consolidated funded debt ratio from a minimum of 8.0% to 7.0%. The Second MVB Term Loan has a fixed interest rate of 6.75% per annum and matures on June 27, 2023. In addition, the Modification Agreements require the repayment of $250,000 on each of the following dates (i) on or before March 31, 2022; (ii) on or before September 30, 2022 and (iii) on or before March 31, 2023. The Company is required to pay an exit fee to MVB in an amount equal to two percent multiplied by the aggregate principal balance of the MVB Term Loan, the MVB Credit Facility and the Second MVB Term Loan at the time of the maturity or just prior to such repayments.
The description of the Modification Agreements contained in this Item 1.01 does not purport to be complete and is subject to and qualified in its entirety by reference to such agreements, copies of which are attached as Exhibits 10.1, 10.2 and 10.3 to this Current Report on Form 8-K, and incorporated herein by reference.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
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Exhibit
No. |
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Description |
10.1 |
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Modification Agreement, dated March 22, 2022, by and among Broad Street Operating Partnership, LP, Broad Street Realty, Inc. and Broad Street Realty, LLC, as borrowers, MVB Bank, Inc., as lender, and Michael Z. Jacoby, as guarantor. |
10.2 |
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Allonge and Modification Agreement (Note No. 1), dated March 22, 2022. |
10.3 |
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Allonge and Modification Agreement (Note No. 2), dated March 22, 2022. |
104 |
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Cover Page Interactive Data File – The cover page XBRL tags are 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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BROAD STREET REALTY, INC. |
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Date: |
March 28, 2022 |
By: |
/s/ Michael Z. Jacoby |
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Michael Z. Jacoby
Chief Executive Officer |
Exhibit 10.1
MODIFICATION AGREEMENT
(Modification of Loan Agreement and Other Loan Documents)
THIS MODIFICATION AGREEMENT (the “Agreement”) is dated as of the 22nd day of March, 2022, by Broad Street Operating Partnership, LP, a Delaware limited partnership, Broad Street Realty, Inc., a Delaware corporation, and Broad Street Realty, LLC, a Maryland limited liability company, their respective successors and/or assigns (collectively, the “Borrower” for clerical convenience); MVB Bank, INC., a West Virginia banking corporation, its successors and/or assigns (the “Lender”); and Michael Z. Jacoby (individually) (the “Guarantor”).
R E C I T A L S :
1.In accordance with the terms of that certain Loan Agreement dated on or about December 27, 2019, as previously amended, and as further amended by this Agreement (as amended, the “Loan Agreement”), executed in favor of the Lender by each Borrower and Guarantor, the Lender agreed to make one or more commercial loans to the Borrower in the original aggregate principal amount of up to Six Million Five Hundred Thousand and 00/100 Dollars ($6,500,000.00) (collectively, the “Original Loan”), as amended and increased by this Agreement to the aggregate principal amount of up to eight Million Five Hundred Thousand and 00/100 Dollars ($8,500,000.00) (hereinafter, the Original Loan, as amended and increased, whether administered as one or more loans, referred to, singularly or collectively, as the “Loan”). The Lender is the holder of each of the Notes (defined below).
2.The Loan is evidenced by, among other documents, three (3) promissory notes each payable to the order of the Lender and further described as follows (collectively, the “Notes”):
a.Promissory Note (Commercial Term Note) in the face amount of Four Million Five Hundred Thousand and 00/100 Dollars ($4,500,000.00) dated on or about December 27, 2019 (“Original Note No. 1”), as amended by that certain Allonge and Modification Agreement (Note No. 1) dated on or about the date hereof (collectively, together with any and all other allonges, amendments, modifications, extensions, and/or supplements thereto, are referred to as “Note 1”);
b.Promissory Note (Revolving Line of Credit Note) in the face amount of Two Million and 00/100 Dollars ($2,000,000.00), dated on or about December 27, 2019 (“Original Note No. 2”), as previously amended and as further amended by that certain Allonge and Modification Agreement (Note No. 2) dated on or about the date hereof (collectively, together with any and all other allonges, amendments, modifications, extensions, and/or supplements thereto, are referred to as “Note 2”); and
c.Promissory Note (Non-Revolving Draw Note) in the face amount of TWO MILLION AND 00/100 DOLLARS ($2,000,000.00), dated on or about the date hereof (collectively, together with any and all other allonges, amendments, modifications, extensions, and/or supplements thereto, are referred to as “Note No. 3”).
3.The Loan is further evidenced and secured by, among other documents, the following documents, each being executed by each Borrower (except as otherwise expressly stated) in favor of the Lender and originally dated on or December 27, 2019 (collectively, together with the Loan
Agreement, the Notes, this Agreement, and any other document, instrument, and/or agreement that governs, secures, evidences, and/or otherwise relates to the Loan, and any and all other or further amendments, modifications, supplements, documents, and/or instruments that may evidence and/or secure the Loan executed at any time or from time to time, referred to hereinafter as the “Loan Documents”):
a.Security Agreement and Collateral Assignment (the “Security Agreement”);
b.Unconditional Guaranty Agreement executed by the Guarantor and by BSV Cromwell Land LLC, a Maryland limited liability company (the “Released Guarantor”), dated on or about the date of the Original Note, to be amended and restated by that certain Unconditional Guaranty Agreement dated on or about the date hereof (the “Guaranty”);
c.Pledge, Assignment, and Security Agreement;
d.Borrower’s Certificate;
e.Compliance Agreement and Limited Power of Attorney; and
f.Such other documents, instruments, and/or agreements as may evidence and/or secure the Loan.
4.Each Borrower has requested that the Lender increase the total principal amount of the Original Loan and modify certain terms of the Loan Agreement and the other Loan Documents to further certain business objectives of each Borrower as further disclosed to Lender, subject to the terms of this Agreement.
5.The parties hereto desire to further modify the terms of the Loan Agreement and the other Loan Documents in accordance with the terms stated herein;
W I T N E S S E T H :
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby mutually acknowledged and affirmed, the parties hereto do hereby agree as follows:
1.Recitals; Incorporation. All of the recitals stated above are hereby incorporated herein by reference as if fully set forth in the body of this Agreement. All of the Loan Documents are hereby incorporated herein by reference as if fully set forth in the body of this Agreement.
2.Modification of Loan Agreement; Ratification.
a.All references in the Loan Agreement to the “Loan” shall be deemed to refer to the Loan, as increased to the total principal amount of up to eight Million Five Hundred Thousand and 00/100 Dollars ($8,500,000.00). All references in the Loan Agreement to the “Note” or “Notes” shall be deemed to be a reference to each Note (being Note 1, Note 2, and Note 3).
b.All references in the Loan Agreement to the “Guarantor” shall be deemed to mean and refer to the Guarantor (as defined herein; to-wit: Michael Z. Jacoby). At the request of Borrower and Guarantor, Lender hereby releases the Released Guarantor (BSV Cromwell Land LLC, a Maryland limited liability company) from all obligations and liabilities under the Loan Documents.
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c.Borrower shall pay to the Lender the following principal curtailments to be applied to the amount due under Note No. 2 (each a “Required Curtailment”): (i) a $250,000.00 Required Curtailment on or before March 31, 2022; (ii) a $250,000.00 Required Curtailment on or before September 30, 2022; and (iii) a $250,000.00 Required Curtailment on or before the earlier of March 31, 2023. Upon receipt of each Required Curtailment, Lender will apply the amount received in accordance with the terms of Note No. 2.
d.Upon the earlier to occur of (i) the maturity date of the Notes, or (ii) full repayment of the Loan, whether as a result of the acceleration of the Loan or otherwise, Borrower shall pay an exit fee to Lender in an amount equal to two percent (2.0%) multiplied by the aggregate principal balance of the Loans at the time of the maturity date or just prior to such repayment (the “Exit Fee”); provided, however, for purposes of calculating the Exit Fee, any principal curtailments paid to Lender and applied to any of the Notes in excess of the required monthly amortizing principal payments due under the express terms of the respective Notes or the Required Curtailments shall be added to the aggregate principal balance and subject to the Exit Fee. The Exit Fee shall be deemed to be earned in full at the time when paid to the Lender.
e.The minimum ratio of Total Funded Debt to EBITDA Ratio (as described in Section 5.02 of the Loan Agreement), is hereby reduced from a minimum of eight percent (8.00%) to a minimum of seven percent (7.00%), as measured and determined subject to the terms of Section 5.02 of the Loan Agreement.
f.The principal amount of the Loan evidenced by Note No. 3 shall be available to be disbursed to the Borrower for Borrower’s working capital needs subject to the following and the other terms and limitations of the Loan Agreement:
i. From time to time after the date of this Agreement, but not more frequently than twice per month, and prior to the Advance Deadline (as defined below) the Borrower may request further advances and/or re-advances under Note No. 3 so long as the Lender determines in its discretion: (i) that the requests for such advances are consistent with the Purpose (as defined in the Loan Agreement) as disclosed to the Lender, (ii) that no Event of Default (as defined in the Loan Agreement) has occurred and is continuing or but for the passage of time is about to occur, and (iii) the principal amount of the Loan evidenced by Note No. 3 is not exceeded (each advance under Note No. 3 is referred to herein as a “Credit Advance”).
ii.All requests for any Credit Advance under Note No. 3 must be received by the Lender prior to September 22, 2022 (the “Advance Deadline”), at which time the Borrower’s right to any further Credit Advances under Note No. 3 shall automatically expire notwithstanding anything contained herein or in any other Loan Documents to the contrary. The Borrower shall not be entitled to, and the Lender shall not be required to make, any Credit Advances under Note No. 3 after the Advance Deadline.
iii.All requests for Credit Advances shall be requested by individuals authorized by Borrower, and submitted by email, signed facsimile, or in person or by telephone to an authorized representative of Lender.
iv.In addition to all other rights of the Lender granted under any of the Loan Documents to terminate Credit Advances, the Lender's commitment to make Credit Advances shall expire and terminate: (i) automatically if the portion of the Loan evidenced by Note No. 3 is prepaid in full and Note No. 3 cancelled or returned to Borrower; (ii) if the Borrower commits any breach or
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anticipatory breach; or (iii) if an Event of Default occurs and is not timely cured.
g.All parties hereto jointly and severally ratify and reaffirm that the Loan Agreement remains legal, valid, and binding upon the Borrower, and enforceable against the Borrower in accordance with its terms.
Except as modified herein, all other terms and conditions in the Loan Agreement shall remain unchanged, and in full force and effect.
3.Modification of Other Loan Documents; Ratification.
a.All references in any of the other Loan Documents to the “Loan” shall be deemed to refer to the Loan, as increased to the total principal amount of up to eight Million Five Hundred Thousand and 00/100 Dollars ($8,500,000.00). All references in the Loan Documents to the “Note” or “Notes” shall be deemed to be a reference to each Note (being Note 1, Note 2, and Note 3).
b.To induce the Lender to enter into this Agreement, each Borrower and the Guarantor hereby jointly and severally covenant that the Notes and all of the other Loan Documents executed by them remain valid, binding, and enforceable against them in accordance with the respective terms thereof, and except as modified herein, all other terms of the respective Loan Documents remain unchanged and in full force and effect.
4.Ratification of UCC Financing Statements. It is hereby covenanted and warranted that: (a) all personal property identified and listed in the UCC Financing Statement continues to secure all obligations under the Notes and Loan Documents, as amended, and (b) other or additional UCC Financing Statements and/or modification or continuation statements to the existing UCC Financing Statement may be filed, at the expense of the Borrower, at any time or from time to time, in any of the applicable recording jurisdictions or among any proper records to ensure that the Lender’s security interests are properly filed and perfected. In the event that any UCC Financing Statements expire, or the Lender for any reason, deems that its security interests in any of its collateral are not properly perfected, or the collateral descriptions require clarification or particularity to better comply with applicable codes, then the Borrower agrees to at all times cooperate with the Lender in signing all desirable documentation, and hereby authorize the proper substitution, correction, filing or re-filing, recording or re-recording of any documents or financing statements to perfect or better perfect and protect the security interests of the Lender for so long as the Loan remains outstanding.
a.To further induce the Lender to enter into this Agreement, the Guarantor agrees to execute, acknowledge, and deliver the Guaranty on or prior to the date hereof.
b.Each of the undersigned hereby certifies that the execution, delivery, and performance of this Agreement has been properly authorized, consented to, and approved by all requisite and necessary parties.
c.Each Borrower and Guarantor agrees that there are no defenses, counterclaims, and/or setoffs against any of their respective obligations under the Loan Documents.
d.Nothing contained herein shall modify or affect other notes, if any, that may be
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in favor of the Lender and referred to in any of the Loan Documents.
e.This Agreement is a modification only and does not effect or constitute a novation or release of any Borrower’s or the Guarantor’s respective obligations under any of the Loan Documents or any agreements contained therein.
f.In connection with this Agreement and all matters contemplated herein, the Borrower agrees to pay to the Lender its attorneys’ fees and loan modification fees incurred on or before the date hereof, all of which shall be deemed earned in full as of the date hereof.
g.Each Borrower hereby covenants and agrees to execute and deliver, any and all instruments, papers, deeds, acts, and/or things, supplemental, confirmatory, or otherwise, as reasonably may be required by the Lender for the purpose of effecting the modifications described and/or contemplated herein.
h.This Agreement is binding on the parties hereto, their respective heirs, estates, personal representatives, successors, assigns, and/or successors in title.
i.This Agreement may be executed by the parties hereto in separate counterparts, each of which, when so executed and delivered, shall be an original, but all such counterparts shall together constitute one and the same instrument. Each counterpart may consist of a number of copies hereof, each signed by less than all, but together signed by all, of the parties hereto. Copies of documents or signature pages bearing original signatures, and executed documents or signature pages delivered by a party by telefax, facsimile, or e-mail transmission of an Adobe® file format document (also known as a PDF file) shall, in each such instance, be deemed to be, and shall constitute and be treated as, an original signed document or counterpart, as applicable. Any party delivering an executed counterpart of this Agreement by telefax, facsimile, or e-mail transmission of an Adobe® file format document also shall deliver an original executed counterpart of this Agreement, but the failure to deliver an original executed counterpart shall not affect the validity, enforceability, and legally binding effect of this Agreement.
j.This Agreement constitutes the entire agreement between the parties hereto, and supersedes all prior discussions among the parties hereto.
Except as modified herein, all other terms and conditions in the Loan Documents shall remain unchanged, and in full force and effect.
(signatures follow next)
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WITNESS the following signatures and seals of the undersigned to this Modification Agreement:
Borrower:
Broad Street Operating Partnership, LP
a Delaware limited partnership
By: Broad Street OP GP, LLC
a Delaware limited liability company
its General Partner
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By: |
/s/ Michael Z. Jacoby (seal) |
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Michael Z. Jacoby |
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Chief Executive Officer |
Broad Street Realty, Inc.
a Delaware corporation
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By: |
/s/ Michael Z. Jacoby (seal) |
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Michael Z. Jacoby |
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Chief Executive Officer |
Broad Street Realty, LLC
a Maryland limited liability company
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By: |
/s/ Michael Z. Jacoby (seal) |
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Michael Z. Jacoby |
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Chief Executive Officer |
Guarantor:
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/s/ Michael Z. Jacoby (seal) |
MICHAEL Z. JACOBY (individually) |
(signatures continue on next page)
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Witness our signatures and seals to the Modification Agreement (continued):
MODIFICATION AGREEMENT CONSENTED TO AND AUTHORIZED BY:
MVB BANK, Inc.
a West Virginia banking corporation
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By: |
/s/ Garret Reed |
Print Name: |
Garret Reed |
Title: |
Senior Vice President |
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Exhibit 10.2
ALLONGE AND MODIFICATION AGREEMENT (NOTE NO. 1)
(Amendment and Modification of Note No. 1)
THIS ALLONGE AND MODIFICATION AGREEMENT (the “Agreement”) is dated as of the 22nd day of March, 2022, by Broad Street Operating Partnership, LP, a Delaware limited partnership, Broad Street Realty, Inc., a Delaware corporation, and Broad Street Realty, LLC, a Maryland limited liability company, their respective successors and/or assigns (collectively, the “Borrower” for clerical convenience); MVB Bank, INC., a West Virginia banking corporation, its successors and/or assigns (the “Lender”); and Michael Z. Jacoby (individually) (the “Guarantor”).
R E C I T A L S :
1.In accordance with the terms of that certain Loan Agreement dated on or about December 27, 2019, as previously amended, and as further amended by that certain Modification Agreement dated on or about the date hereof (the “Modification Agreement”), executed in favor of the Lender by each Borrower and Guarantor (as amended, the “Loan Agreement”), the Lender agreed to make one or more commercial loans to the Borrower in the aggregate, amended principal amount of up to eight Million Five Hundred Thousand and 00/100 Dollars ($8,500,000.00) (hereinafter, whether administered as one or more loans, referred to, singularly or collectively, as the “Loan”). The Lender is the holder of the Notes (defined below).
2.The Loan is evidenced by, among other documents, those certain promissory notes payable to the order of Lender (collectively, together with any and all respective allonges, amendments, modifications, extensions, and/or supplements thereto, the “Notes”), and being further described as follows:
a.Promissory Note in the face amount of Four Million Five Hundred Thousand and 00/100 Dollars ($4,500,000.00) (“Original Note No. 1”), dated on or about December 27, 2019, as amended by this Agreement (collectively, Original Note No. 1, as amended by this Agreement, together with any and all other allonges, amendments, modifications, extensions, and/or supplements thereto, are referred to as “Note No. 1”);
b.Promissory Note in the face amount Two Million and 00/100 Dollars ($2,000,000.00) (“Original Note No. 2”), dated on or about December 27, 2019, as previously amended, and as further amended by that certain separate Allonge and Modification Agreement dated on or about the date hereof (the “Note No. 2 Allonge”) (collectively, Original Note No. 2, as previously amended, and as further amended the Note No. 2 Allonge, together with any and all other allonges, amendments, modifications, extensions, and/or supplements thereto, are referred to as “Note No. 2”); and
c.Promissory Note in the face amount of Two Million and 00/100 Dollars ($2,000,000.00) (“Note No. 3”) dated on or about the dated of this Agreement.
3.The Loan is further evidenced and secured by the Loan Documents (as defined in the Modification Agreement).
4.The parties hereto desire to further modify the terms of Note No. 1 in accordance with the
W I T N E S S E T H :
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby mutually acknowledged and affirmed, the parties hereto do hereby agree as follows:
1.Recitals; Incorporation. All of the recitals stated above are hereby incorporated herein by reference as if fully set forth in the body of this Agreement. All of the Loan Documents are hereby incorporated herein by reference as if fully set forth in the body of this Agreement.
2.Modification of Note No. 1; Ratification.
a.The Maturity Date (as defined in Note No. 1) of Note No. 1 is hereby extended and is deemed to be June 27, 2023, when all principal that remains outstanding under Note No. 1, together with all other amounts, including, but not limited to, accrued but unpaid interest, costs, and fees, if any, shall be and become due and payable in full. TIME IS OF THE ESSENCE. This is a special circumstance and the Lender shall be under no obligation to further extend the Maturity Date.
b.Borrower shall continue to pay to Lender regular installments of principal and interest as and when required under the terms of Note No. 1.
c.The Exit Fee (as defined in the Modification Agreement) shall be paid to Lender on the Maturity Date and/or any prepayment of Note No. 1.
d.All references in Note No. 1 to the “Guarantors” shall be deemed to mean and refer to the Guarantor (as defined herein). All references in Note No. 1 to the “Unconditional Guaranty Agreement” shall be deemed to mean and refer to that certain amended and restated Unconditional Guaranty Agreement dated on or about the date hereof, executed and delivered by Guarantor.
e.Each Borrower hereby jointly and severally:
i.ratifies and reaffirms its promise to pay to the order of Lender, its successors and/or assigns, all principal sums advanced under the Loan and evidenced by Note No. 1, that remain outstanding, together with all accrued but unpaid interest, costs, and fees as and when they come due thereunder in accordance with the terms thereof;
ii.ratifies and reaffirms that Note No. 1 is and remains a valid and legally binding obligation of the Borrower, enforceable against the Borrower, jointly and severally, in accordance with the terms thereof;
iii.confirms that Note No. 1 remains contemplated and secured by the Security Agreement and all of the other Loan Documents; and
iv.confirms that all references to Note No. 1 are inclusive of all amendments and/or modifications thereto.
This Agreement shall be deemed to be incorporated into and become a part of Note No. 1 as if fully set forth therein, and may be attached to Note No. 1. Except as modified herein, all other terms and conditions of Note No. 1 shall remain unchanged and in full force and effect.
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a.The agreements, obligations, warranties, and representations of Borrower contained herein are joint, several, and joint and several with respect to each Borrower.
b.Each of the undersigned hereby certifies that the execution, delivery, and performance of this Agreement has been properly authorized, consented to, and approved by all requisite and necessary parties.
c.Nothing contained herein shall modify or affect other notes that may be in favor of the Lender and referred to in any of the Loan Documents, including, but not limited to, Note No. 2 and Note No. 3.
d.This Agreement is a modification only and does not effect or constitute a novation or release of any Borrower’s or Guarantor’s respective obligations under Note No. 1 or any of the other Loan Documents or any agreements contained therein.
e.In connection with this Agreement and all matters contemplated herein, the Borrower agrees to pay to the Lender its attorneys’ fees and loan modification fees incurred on or before the date hereof, all of which shall be deemed earned in full as of the date hereof.
f.Each Borrower hereby covenants and agrees to execute and deliver, any and all instruments, papers, deeds, acts, and/or things, supplemental, confirmatory, or otherwise, as reasonably may be required by the Lender for the purpose of effecting the modifications described or contemplated herein.
g.This Agreement is binding on the parties hereto, their respective heirs, estates, personal representatives, successors, assigns, and/or successors in title.
h.This Agreement may be executed by the parties hereto in separate counterparts, each of which, when so executed and delivered, shall be an original, but all such counterparts shall together constitute one and the same instrument. Each counterpart may consist of a number of copies hereof, each signed by less than all, but together signed by all, of the parties hereto. Copies of documents or signature pages bearing original signatures, and executed documents or signature pages delivered by a party by telefax, facsimile, or e-mail transmission of an Adobe® file format document (also known as a PDF file) shall, in each such instance, be deemed to be, and shall constitute and be treated as, an original signed document or counterpart, as applicable. Any party delivering an executed counterpart of this Agreement by telefax, facsimile, or e-mail transmission of an Adobe® file format document also shall deliver an original executed counterpart of this Agreement, but the failure to deliver an original executed counterpart shall not affect the validity, enforceability, and legally binding effect of this Agreement.
i.This Agreement constitutes the entire agreement between the parties hereto, and supersedes all prior discussions among the parties hereto.
(signatures follow next)
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WITNESS the following signatures and seals of the undersigned to this Allonge and Modification Agreement:
Borrower:
Broad Street Operating Partnership, LP
a Delaware limited partnership
By: Broad Street OP GP, LLC
a Delaware limited liability company
its General Partner
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By: |
/s/ Michael Z. Jacoby (seal) |
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Michael Z. Jacoby |
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Chief Executive Officer |
Broad Street Realty, Inc.
a Delaware corporation
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By: |
/s/ Michael Z. Jacoby (seal) |
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Michael Z. Jacoby |
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Chief Executive Officer |
Broad Street Realty, LLC
a Maryland limited liability company
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By: |
/s/ Michael Z. Jacoby (seal) |
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Michael Z. Jacoby |
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Chief Executive Officer |
STATE OF ____________________
CITY/COUNTY OF ____________________, to wit:
The foregoing instrument was acknowledged before me, a notary public, this _____ day of March, 2022, by Michael Z. Jacoby, as Chief Executive Officer of Broad Street OP GP, LLC, a Delaware limited liability company, the General Partner of Broad Street Operating Partnership, LP, a Delaware limited partnership, as Chief Executive Officer of Broad Street Realty, Inc., a Delaware corporation, and as Chief Executive Officer of Broad Street Realty, LLC, a Maryland limited liability company.
My Commission Expires: __________________________
Registration Number: Notary Public
(signatures continue next)
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WITNESS the following signatures and seals of the undersigned to this Allonge and Modification Agreement (continued):
Guarantor:
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/s/ Michael Z. Jacoby (seal) |
MICHAEL Z. JACOBY (individually) |
STATE OF ____________________
CITY/COUNTY OF ____________________, to wit:
The foregoing instrument was acknowledged before me, a notary public, this _____ day of March, 2022, by Michael Z. Jacoby (individually).
My Commission Expires: __________________________
Registration Number: Notary Public
(signatures continue next)
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Witness our signatures and seals to the Allonge and Modification Agreement (continued):
Lender:
MVB Bank, INC.
a West Virginia banking corporation
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By: |
/s/ Garret Reed |
Print Name: |
Garret Reed |
Title: |
Senior Vice President |
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Exhibit 10.3
ALLONGE AND MODIFICATION AGREEMENT (NOTE NO. 2)
(Amendment and Modification of Note No. 2)
THIS ALLONGE AND MODIFICATION AGREEMENT (the “Agreement”) is dated as of the 22nd day of March, 2022, by Broad Street Operating Partnership, LP, a Delaware limited partnership, Broad Street Realty, Inc., a Delaware corporation, and Broad Street Realty, LLC, a Maryland limited liability company, their respective successors and/or assigns (collectively, the “Borrower” for clerical convenience); MVB Bank, INC., a West Virginia banking corporation, its successors and/or assigns (the “Lender”); and Michael Z. Jacoby (individually) (the “Guarantor”).
R E C I T A L S :
1.In accordance with the terms of that certain Loan Agreement dated on or about December 27, 2019, as previously amended, and as further amended by that certain Modification Agreement dated on or about the date hereof (the “Modification Agreement”), executed in favor of the Lender by each Borrower and Guarantor (as amended, the “Loan Agreement”), the Lender agreed to make one or more commercial loans to the Borrower in the aggregate, amended principal amount of up to eight Million Five Hundred Thousand and 00/100 Dollars ($8,500,000.00) (hereinafter, whether administered as one or more loans, referred to, singularly or collectively, as the “Loan”). The Lender is the holder of the Notes (defined below).
2.The Loan is evidenced by, among other documents, those certain promissory notes payable to the order of Lender (collectively, together with any and all respective allonges, amendments, modifications, extensions, and/or supplements thereto, the “Notes”), and being further described as follows:
a.Promissory Note in the face amount of Four Million Five Hundred Thousand and 00/100 Dollars ($4,500,000.00) (“Original Note No. 1”), dated on or about December 27, 2019, as amended by that certain separate Allonge and Modification Agreement dated on or about the date hereof (the “Note No. 1 Allonge”) (collectively, Original Note No. 1, as previously amended, and as further amended the Note No. 1 Allonge, together with any and all other allonges, amendments, modifications, extensions, and/or supplements thereto, are referred to as “Note No. 1”);
b.Promissory Note in the face amount Two Million and 00/100 Dollars ($2,000,000.00) (“Original Note No. 2”), dated on or about December 27, 2019, as previously amended, and as further amended by this Agreement (collectively, Original Note No. 2, as previously amended, and as further amended by this Agreement, together with any and all other allonges, amendments, modifications, extensions, and/or supplements thereto, are referred to as “Note No. 2”); and
c.Promissory Note in the face amount of Two Million and 00/100 Dollars ($2,000,000.00) (“Note No. 3”) dated on or about the dated of this Agreement.
3.The Loan is further evidenced and secured by the Loan Documents (as defined in the Modification Agreement).
4.The parties hereto desire to further modify the terms of Note No. 2 in accordance with the
W I T N E S S E T H :
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby mutually acknowledged and affirmed, the parties hereto do hereby agree as follows:
1.Recitals; Incorporation. All of the recitals stated above are hereby incorporated herein by reference as if fully set forth in the body of this Agreement. All of the Loan Documents are hereby incorporated herein by reference as if fully set forth in the body of this Agreement.
2.Modification of Note No. 2; Ratification.
a.The Maturity Date (as defined in Note No. 2) of Note No. 2 is hereby further extended and is deemed to be June 27, 2023, when all principal that remains outstanding under Note No. 2, together with all other amounts, including, but not limited to, accrued but unpaid interest, costs, and fees, if any, shall be and become due and payable in full. TIME IS OF THE ESSENCE. This is a special circumstance and the Lender shall be under no obligation to further extend the Maturity Date.
b.No further draws, advances, or re-advances will be permitted under Note No. 2.
c.Borrower shall continue to pay to Lender regular installments of principal and interest as and when required under the terms of Note No. 2.
d.The Exit Fee (as defined in the Modification Agreement) shall be paid to Lender on the Maturity Date and/or any prepayment of Note No. 2.
e.All references in Note No. 2 to the “Guarantors” shall be deemed to mean and refer to the Guarantor (as defined herein). All references in Note No. 2 to the “Unconditional Guaranty Agreement” shall be deemed to mean and refer to that certain amended and restated Unconditional Guaranty Agreement dated on or about the date hereof, executed and delivered by Guarantor.
f.Each Borrower hereby jointly and severally:
i.ratifies and reaffirms its promise to pay to the order of Lender, its successors and/or assigns, all principal sums advanced and/or re-advanced under the Loan and evidenced by Note No. 2, that remain outstanding, together with all accrued but unpaid interest, costs, and fees as and when they come due thereunder in accordance with the terms thereof;
ii.ratifies and reaffirms that Note No. 2 is and remains a valid and legally binding obligation of the Borrower, enforceable against the Borrower, jointly and severally, in accordance with the terms thereof;
iii.confirms that Note No. 2 remains contemplated and secured by the Security Agreement and all of the other Loan Documents; and
iv.confirms that all references to Note No. 2 are inclusive of all amendments and/or modifications thereto.
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This Agreement shall be deemed to be incorporated into and become a part of Note No. 2 as if fully set forth therein, and may be attached to Note No. 2. Except as modified herein, all other terms and conditions of Note No. 2 shall remain unchanged and in full force and effect.
a.The agreements, obligations, warranties, and representations of Borrower contained herein are joint, several, and joint and several with respect to each Borrower.
b.Each of the undersigned hereby certifies that the execution, delivery, and performance of this Agreement has been properly authorized, consented to, and approved by all requisite and necessary parties.
c.Nothing contained herein shall modify or affect other notes that may be in favor of the Lender and referred to in any of the Loan Documents, including, but not limited to, Note No. 1 and Note No. 3.
d.This Agreement is a modification only and does not effect or constitute a novation or release of any Borrower’s or Guarantor’s respective obligations under Note No. 2 or any of the other Loan Documents or any agreements contained therein.
e.In connection with this Agreement and all matters contemplated herein, the Borrower agrees to pay to the Lender its attorneys’ fees and loan modification fees incurred on or before the date hereof, all of which shall be deemed earned in full as of the date hereof.
f.Each Borrower hereby covenants and agrees to execute and deliver, any and all instruments, papers, deeds, acts, and/or things, supplemental, confirmatory, or otherwise, as reasonably may be required by the Lender for the purpose of effecting the modifications described or contemplated herein.
g.This Agreement is binding on the parties hereto, their respective heirs, estates, personal representatives, successors, assigns, and/or successors in title.
h.This Agreement may be executed by the parties hereto in separate counterparts, each of which, when so executed and delivered, shall be an original, but all such counterparts shall together constitute one and the same instrument. Each counterpart may consist of a number of copies hereof, each signed by less than all, but together signed by all, of the parties hereto. Copies of documents or signature pages bearing original signatures, and executed documents or signature pages delivered by a party by telefax, facsimile, or e-mail transmission of an Adobe® file format document (also known as a PDF file) shall, in each such instance, be deemed to be, and shall constitute and be treated as, an original signed document or counterpart, as applicable. Any party delivering an executed counterpart of this Agreement by telefax, facsimile, or e-mail transmission of an Adobe® file format document also shall deliver an original executed counterpart of this Agreement, but the failure to deliver an original executed counterpart shall not affect the validity, enforceability, and legally binding effect of this Agreement.
i.This Agreement constitutes the entire agreement between the parties hereto, and supersedes all prior discussions among the parties hereto.
(signatures follow next)
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WITNESS the following signatures and seals of the undersigned to this Allonge and Modification Agreement:
Borrower:
Broad Street Operating Partnership, LP
a Delaware limited partnership
By: Broad Street OP GP, LLC
a Delaware limited liability company
its General Partner
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By: |
/s/ Michael Z. Jacoby (seal) |
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Michael Z. Jacoby |
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Chief Executive Officer |
Broad Street Realty, Inc.
a Delaware corporation
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By: |
/s/ Michael Z. Jacoby (seal) |
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Michael Z. Jacoby |
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Chief Executive Officer |
Broad Street Realty, LLC
a Maryland limited liability company
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By: |
/s/ Michael Z. Jacoby (seal) |
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Michael Z. Jacoby |
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Chief Executive Officer |
STATE OF ____________________
CITY/COUNTY OF ____________________, to wit:
The foregoing instrument was acknowledged before me, a notary public, this _____ day of March, 2022, by Michael Z. Jacoby, as Chief Executive Officer of Broad Street OP GP, LLC, a Delaware limited liability company, the General Partner of Broad Street Operating Partnership, LP, a Delaware limited partnership, as Chief Executive Officer of Broad Street Realty, Inc., a Delaware corporation, and as Chief Executive Officer of Broad Street Realty, LLC, a Maryland limited liability company.
My Commission Expires: __________________________
Registration Number: Notary Public
(signatures continue next)
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WITNESS the following signatures and seals of the undersigned to this Allonge and Modification Agreement (continued):
Guarantor:
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/s/ Michael Z. Jacoby (seal) |
MICHAEL Z. JACOBY (individually) |
STATE OF ____________________
CITY/COUNTY OF ____________________, to wit:
The foregoing instrument was acknowledged before me, a notary public, this _____ day of March, 2022, by Michael Z. Jacoby (individually).
My Commission Expires: __________________________
Registration Number: Notary Public
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Witness our signatures and seals to the Allonge and Modification Agreement (continued):
Lender:
MVB Bank, INC.
a West Virginia banking corporation
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By: |
/s/ Garret Reed |
Print Name: |
Garret Reed |
Title: |
Senior Vice President |
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