Filed by Avantafile.com - Mobile Infrastructure Corporation - Exhibit 10.1






FIRST AMENDMENT TO CREDIT AGREEMENT


 


THIS FIRST AMENDMENT TO CREDIT AGREEMENT (this “Agreement”) is dated as of November 17, 2022 by and among MOBILE INFRA OPERATING PARTNERSHIP, L.P., a Maryland limited partnership (the “Lead Borrower”), each Subsidiary
Borrower (and together with Lead Borrower, individually and collectively,
jointly and severally, the “Borrower”) and KEYBANK NATIONAL ASSOCIATION as administrative agent (the “Administrative Agent”), and the
other financial institutions party hereto, as lenders
(each a “Lender” and collectively, the “Lenders”).


 


A.        The
Borrower, the Administrative Agent and the Lenders are party to that certain
Credit Agreement, dated as of March 29, 2022 (the “Credit Agreement”, and as
amended by this Agreement, the “Amended Credit Agreement”);


 


B.        The
Borrower and the Administrative Agent have agreed to make certain modifications
to the Credit Agreement upon the terms and subject to the conditions set forth
in this Agreement; and


 


C.        The
Borrower has requested that the Administrative Agent and the Lenders agree to
extend the Stated Maturity Date upon the terms and subject to the conditions
set forth in this Agreement.


 


NOW, THEREFORE, in consideration of the mutual promises herein
contained and for other valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto do hereby agree as follows:


 


1.            Credit Agreement Definitions. Unless otherwise expressly
defined herein, capitalized terms used but not defined herein shall have the
meaning given to such terms in the Amended Credit Agreement.


 


2.            EXTENSION. Effective as of the
Effective Date, and notwithstanding the conditions of Section 2.19 of the
Credit Agreement, the Stated Maturity Date is extended to April 1, 2024. No
further extension options are allowed as a matter of right under the Amended Credit
Agreement.


 


3.            AMENDMENTS TO
CREDIT AGREEMENT.  Effective
as of the Effective Date, the Credit Agreement is hereby amended as follows:


 


3.01.       
Section
1.01 of the Credit Agreement is hereby amended by amending and restating each
of the following definitions in their entirety to read as follows:


 


	 
	“Fixed Charge Coverage Ratio” means,
as of any date of calculation, the ratio for the Parent and its Subsidiaries on
a consolidated basis (without duplication) of, (a) the sum of Adjusted EBITDA
for the most-recently ended period of four quarters; to (b) all of the
regularly scheduled principal due and payable and principal paid on all
Indebtedness (other than amounts paid in connection with balloon maturities,
repayments of the Loans, and other non-scheduled payments of principal), plus
all Interest Expense, plus the aggregate of all cash dividends paid or payable
on any preferred stock (collectively, the “Fixed Charges”), in each case, for
the most recently ended fiscal quarter, annualized.










	 
	“Pool Debt Yield” means, as of any
date of calculation, the ratio expressed as a percentage of the Pool NOI for
the most recently ended fiscal quarter, divided by the Total Credit Exposure.




 


	 
	“Pool NOI” means, as of any date of
calculation, Net Operating Income from all Pool Properties for the most
recently ended fiscal quarter (subject to the gross up provisions of the
definition of Net Operating Income for any Pool Properties not owned for the
entirety of such period); provided that, no single Pool Property shall comprise
in excess of 30% of the Pool NOI at any time, with any excess being excluded
from Pool NOI.




 


	 
	“Stated
Maturity Date” means April 1, 2024.




 


3.02.       
The
definition of “Net Operating Income” in Section 1.01 of the Credit Agreement is
hereby amended by deleting the following phrase in its entirety: 


 


	 	Net
Operating Income shall be calculated based on the immediately preceding period
of four calendar quarters, unless the Real Property has not been owned by the Borrower
or its Subsidiaries for the entirety of such period, in which event annualized
Net Operating Income shall be calculated based on the historical data provided
by the Borrower, subject to adjustment by the Administrative Agent in its
reasonable discretion. 




 


3.03.       
Section
2.19 of the Credit Agreement is hereby amended and restated in its entirety to
read as follows:


 


	 
	SECTION 2.19           [Intentionally Omitted].




 


3.04.       
Section
5.02 of the Credit Agreement is hereby amended by amending and restating clause
(b) thereof in its entirety to read as follows:


 



(b)   The Fixed Charge Coverage Ratio shall not be less than (i) from April 1, 2022 until December 31, 2022, 1.00 to 1.00, (ii) from January 1, 2023 until March 31, 2023, 1.25 to 1.00, and (iii) thereafter, 1.40 to 1.00;


 


3.05.       
The Credit Agreement is hereby amended to add a new Section 5.19 in
appropriate numerical order as follows:


 


	 	SECTION
5.19  Equity Raise.  Promptly after November 17, 2022, the Parent shall commence, and thereafter shall use, diligent efforts to pursue active marketing efforts for the issuance and/or sale of Equity Interests or other equity securities of the Parent (or any successor or intended successor thereto), the Borrower, or any of their Subsidiaries (the “Equity Offering”), as permitted and in compliance with all applicable securities laws.  Without limitation to the foregoing, no later than March 31, 2023, the Parent (or any successor or intended successor thereto), Borrower, or any of their Subsidiaries shall have obtained net proceeds from third-party investors, entered into a binding agreement to obtain net proceeds from third-party investors and/or equity commitments from third-party investors, in each case, in respect of Equity Offerings after November 17, 2022, 




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	 	in an aggregate amount such that, if the Parent were to “take down” all such equity commitments and apply the proceeds thereof together with other proceeds received from Equity Offerings since November 17, 2022 to repayment of Indebtedness of the Parent, Borrower, and their Subsidiaries, the Parent and Borrower would have achieved a Fixed Charge Coverage Ratio of no less than 1.40 to 1.0 as of March 31, 2023 (giving pro forma effect to such repayments of Indebtedness as of January 1, 2023).




 


4.            REPRESENTATIONS
AND WARRANTIES.  Borrower hereby represents and warrants to
the Administrative Agent and the Lenders that, as of the date hereof:


  





	 	a.
	The representations and warranties of Borrower and each other Credit Party contained in Article III of the Amended Credit Agreement or any other Loan Document, are true and correct in all material respects on and as of the Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date, and except that for purposes of the Amended Credit Agreement, the representations and warranties contained in Section 3.04 of the Amended Credit Agreement shall be deemed to refer to the most-recent statements furnished pursuant to Section 5.01 of the Amended Credit Agreement;




 


	 	b.
	No Default or Event of Default exists as of the Effective Date, or would result after giving effect to this Agreement; and




 


	 	c.
	This Agreement has been duly authorized, executed and delivered by Borrower so as to constitute the legal and binding obligation of Borrower, enforceable against it in accordance with its terms, subject to Debtor Relief Laws and equitable principles.




 


5.           CONDITIONS
PRECEDENT.  The effectiveness of this Agreement is subject to the
conditions precedent that Administrative Agent shall have received the
following (the date when such conditions shall have been satisfied or waived,
the “Effective
Date”):


 


5.01.       
Agreement. 
This Agreement, duly executed and delivered by Borrower, the
Administrative Agent, and Lenders constituting the Required Lenders;


 


5.02.       
Authority. 
Evidence reasonably satisfactory to the Administrative Agent that the
Borrower has taken all necessary action approving or consenting to entry into
the transactions contemplated herein;


 


5.03.       
Constituent
Documents.  A certificate from a responsible officer (not individually,
but in his or her capacity as such officer) of Borrower that its authority
documents and certificates that were previously delivered to the Agent in
connection with the Credit Agreement have not been amended or modified since
such date and certifying any resolutions being executed in connection herewith;


 


5.05.       
Fee Letter. 
A supplemental fee letter duly executed and delivered by Borrower; and


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5.06.       
Fees and Expenses.  Payment to the Administrative Agent all reasonable and
documented out-of-pocket fees and expenses (including attorney’s fees and
expenses), incurred by the Agent and the Lenders in connection with this
Agreement.






6.
          NO OTHER
AMENDMENTS; RATIFICATION OF LOAN DOCUMENTS. Except for the amendments set forth in Sections 2 and 3 of
this Agreement, (a) the Amended Credit Agreement and the other Loan Documents
shall remain unchanged and in full force and effect and (b) nothing in this
Agreement is intended, or shall be construed, to constitute a novation or an
accord and satisfaction of Borrower’s or any Guarantor’s Obligations under or in
connection with the Amended Credit Agreement or any other Loan Document. Borrower
hereby ratifies, confirms and reaffirms all of the terms and conditions of the
Amended Credit Agreement and each of the other Loan Documents to which it is
party, and further acknowledges and agrees that all of the terms and conditions
of the Credit Agreement and such Loan Documents remain in full force and
effect, in each case, except as expressly provided in this Agreement. This
Agreement shall constitute a Loan Document for all purposes.






7.           MISCELLANEOUS.


 


7.01.       
Governing Law. This Agreement shall be governed by and construed in accordance with the
laws of the State of New York.


 


7.02.       
Successors and
Assigns. 
The provisions of this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns
permitted by the Amended Credit Agreement.


 


7.03.       
Invalid
Provisions. 
If any provision of this Agreement is held to be illegal, invalid, or
unenforceable under present or future laws effective during the term of this
Agreement, such provision shall be fully severable and this Agreement shall be
construed and enforced as if such illegal, invalid or unenforceable provision
had never comprised a part of this Agreement, and the remaining provisions of
this Agreement shall remain in full force and effect and shall not be affected
by the illegal, invalid or unenforceable provision or by its severance from
this Agreement, unless such continued effectiveness of this Agreement, as
modified, would be contrary to the basic understandings and intentions of the
parties as expressed herein. 


 


7.04.       
Headings. 
Section headings are for convenience of reference only and shall in no
way affect the interpretation of this Agreement.


 


7.05.       
Counterparts;
Integration; Effectiveness. 
This Agreement may be executed in counterparts (and by different parties
hereto in different counterparts), each of which shall constitute an original,
but all of which when taken together shall constitute a single contract.  This Agreement and the other Loan Documents
constitute the entire contract among the parties relating to the subject matter
hereof and supersede any and all previous agreements and understandings, oral
or written, relating to the subject matter hereof.  Except as provided in Section 6, this
Agreement shall become effective when it shall have been executed by
Administrative Agent and when Administrative Agent shall have received
counterparts hereof that, when taken together, bear the signatures of each of
the other parties hereto.  Delivery of an
executed counterpart of a signature page of this Agreement by telecopy or other
electronic


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 imaging means shall be effective as delivery of a manually executed counterpart of this Agreement.


 


Remainder of Page
Intentionally Left Blank 


Signature Pages Follow.


























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IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the day and year first above written.


 


	 
	LEAD BORROWER: 
 

	 
	MOBILE INFRA
  OPERATING PARTNERSHIP, L.P.,
  a Maryland limited partnership
 
By:      MOBILE INFRASTRUCTURE CORPORATION, a
  Maryland corporation, its General Partner
 
By:       /s/ Manuel Chavez                              
Name:  Manuel Chavez
Title:   Chief Executive Officer 




 


 


 


 


Signature Page to


First Amendment to Credit Agreement





 


	 	ADMINISTRATIVE AGENT:
 
KEYBANK NATIONAL ASSOCIATION, as Administrative Agent and as a Lender
 
By:        /s/ Christopher T. Neil                             
Name:   Christopher T. Neil 
Title:     Senior Banker




  


 


 


 


Signature Page to


First Amendment to Credit Agreement