Exhibit 10.1


 


LIMITED RECOURSE INDEMNITY AGREEMENT


 


THIS LIMITED RECOURSE INDEMNITY
AGREEMENT (this “Indemnity”) is made as of October 28, 2022 by WHEELER REIT, L.P., a Virginia limited
partnership (“Indemnitor”), in favor of GUGGENHEIM REAL ESTATE, LLC, a Delaware limited liability company
(“Lender”) referred to below.


 


WHEREAS, THE ENTITIES LISTED
ON SCHEDULE I ATTACHED HERETO (“Borrower”) and Lender entered into a certain Term Loan Agreement dated as of
the date hereof (as the same may be supplemented, amended, restated, renewed, replaced, substituted, modified or extended from time to
time, the “Loan Agreement”), whereby Lender agreed to make a secured mortgage loan (the “Loan”)
available to Borrower in the maximum aggregate principal amount at any time outstanding not to exceed the sum of ONE HUNDRED TEN MILLION
and 00/100 DOLLARS ($110,000,000.00) to finance the Project.


 


WHEREAS, Lender is unwilling
to make the Loan unless Indemnitor delivers this Indemnity to Lender.


 


WHEREAS, Indemnitor is an
Affiliate of Borrower and, accordingly, Indemnitor will derive material financial benefit from the Loan.


 


WHEREAS, any capitalized term
used and not defined in this Indemnity shall have the meaning given to such term in the Loan Agreement. This Indemnity is one of the Loan
Documents described in the Loan Agreement.


 


NOW, THEREFORE, in consideration
of the premises and other good and valuable consideration and in order to induce Lender to make the Loan to Borrower, Indemnitor hereby
agrees as follows:


 


SECTION 1. Limited Recourse.
Notwithstanding any provision to the contrary in any of the Loan Documents, Indemnitor, jointly and severally, shall be fully and personally
liable for, and shall defend, indemnify and hold harmless Lender from and against, the full amount of any deficiency, loss, cost (including
reasonable attorneys’ fees and expenses), expense, claim, liability, judgment, award, obligation, penalty, action, suit, disbursement
or damage suffered by Lender because of any of the following:


 


(a) Borrower’s
commission of a criminal act;


 


(b) the
misappropriation or misapplication of any funds derived from the Project and/or the Leases, including, without limitation, security deposits,
insurance proceeds and condemnation awards by Borrower, any other Borrower Party, or Property Manager, or any of their respective Affiliates
who are involved in the operations, maintenance, accounting, rental, or other financial or business affairs or processes of the Project
(collectively, “Project Affiliates”);


 


(c) fraud
or misrepresentation by Borrower, any other Borrower Party, Property Manager or any of their respective Project Affiliates made in or
in connection with the Loan Documents, the Loan, the Leases, Operating Revenue or Operating Expenses;


 


(d) collection
of rents by Borrower or Property Manager or any of their respective Project Affiliates more than one (1) month in advance or entering
into or modifying Leases, or receipt of monies by Borrower, any other Borrower Party or any of their respective Project Affiliates in
connection with the modification of any Leases, in violation of any of the Loan Documents;


 






     


     


    

 


(e) Borrower’s,
any other Borrower Party’s, Property Manager’s or any of their respective Project Affiliates’ failure to apply Operating
Revenues to the costs of maintenance and operation of the Project and to the payment of Taxes, Lien claims, insurance premiums, debt service,
fees and any other amounts due under or pursuant to the Loan Documents;


 


(f) damage
or destruction to the Project caused by the acts or omissions of Borrower, any other Borrower Party or any of their respective Project
Affiliates or any of their respective agents, employees or contractors, including without limitation, waste of the Project;


 


(g) Borrower’s
failure to maintain insurance as required by the Loan Documents or Borrower’s failure to pay any Taxes, Other Taxes or other assessments
affecting the Project;


 


(h) any
claim or allegation made by Borrower or any other Borrower Party or any of their respective successors or assigns that this Indemnity
or the transactions contemplated by the Loan Documents establish a joint venture, partnership or other similar arrangement between Borrower
and Lender;


 


(i) Borrower,
any Borrower Party or any of their respective Project Affiliates takes any action which impedes, enjoins, prevents, hinders, frustrates,
delays, stays or interferes with Lender’s exercise of any rights or remedies under any of the Loan Documents, at law or in equity;


 


(j) the
failure of Borrower to maintain its status as a Single Purpose Entity; and/or


 


(k) the
failure of Borrower to comply with the provisions of (i) Section 2.9 or Section 8.19 of the Loan Agreement, or (ii) Section 8.16 of the
Loan Agreement while a Cash Sweep Period or an Event of Default exists;


 


(l) any
brokerage commission or finder’s fees claimed in connection with the transactions contemplated by the Loan Documents, except to
the extent arising from any claims of any Person engaged or purportedly engaged by or on behalf of Lender; and/or


 


(m) until
such time as a fully executed estoppel substantially in the form attached hereto as Exhibit A (the “Ground Lease
Estoppel”) is provided to Lender, any claim made by one or more parties constituting the Landlord named in the Ground Lease
Estoppel against the Tenant named therein, with respect to any misstatement or misrepresentation which would have been corrected or disclosed
to Lender had the Ground Lease Estoppel been previously received by Lender.  In the event that Lender receives the Ground Lease Estoppel,
this Section 1(m) shall be null and void.


 


The foregoing items are sometimes hereinafter
referred to as “Limited Recourse Obligations.”


 


SECTION 2. Full Recourse.
Notwithstanding anything to the contrary in any of the Loan Documents, the Obligations shall be fully recourse, jointly and severally,
to Indemnitor in the event that:


 


(a) Borrower
or Indemnitor files a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law;


 


(b) an
Affiliate, officer, director, or representative which controls, directly or indirectly, Borrower or Indemnitor, (1) files, or joins in
the filing of, an involuntary petition against Borrower or such Indemnitor under the Bankruptcy Code and which involuntary proceeding
is not discharged or dismissed within sixty (60) days after the date of the commencement of same or (2) solicits or causes to be solicited
petitioning creditors for any involuntary petition against any Borrower or such Indemnitor from any Person;


 






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(c) Borrower
or Indemnitor files an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it, by any
other Person under the Bankruptcy Code or solicits or causes to be solicited petitioning creditors for any involuntary petition from any
Person; provided, however, a Borrower or an Indemnitor will not be deemed to have consented
to, acquiesced in or joined an involuntary petition if such Borrower or Indemnitor is legally compelled to file such answer or join in
to a petition or proceeding that such Borrower or Indemnitor did not initiate;


 


(d) any
Affiliate, officer, director, or representative which controls Borrower or Indemnitor consents to or acquiesces in or joins in an application
for the appointment of a custodian, receiver, trustee, or examiner for Borrower, such Indemnitor or any portion of the Project; provided,
however, a Borrower or an Indemnitor will not be deemed to have consented to, acquiesced in or joined an application for the appointment
of a custodian, receiver, trustee or examiner if such Borrower or Indemnitor is legally compelled to take such action and such Borrower
or Indemnitor did not initiate the applicable application


 


(e) Borrower
or Indemnitor makes an assignment for the benefit of creditors, or admits, in writing or in any legal proceeding, its insolvency or inability
to pay its debts as they become due;


 


(f) Any
Transfer (other than a Permitted Transfer) occurs;


 


(g) The
division by Borrower or Indemnitor into multiple entities or series pursuant to Section 18-217 of the Delaware Limited Liability Company
Act or otherwise without Lender’s prior written consent;


 


(h) the
failure of Borrower to maintain its status as a Single Purpose Entity, which failure results in the substantive consolidation of Borrower
with any other Person; and/or


 


(i) Borrower’s
incurrence of any Debt in violation of the Loan Documents.


 


The foregoing items are sometimes hereinafter
referred to as “Full Recourse Obligations.”


 


SECTION 3. Indemnity Absolute.


 


(a) Indemnitor
hereby absolutely, unconditionally and irrevocably guarantees, jointly and severally, to Lender the prompt, full and complete payment
and/or performance of the Limited Recourse Obligations and the Full Recourse Obligations, and agrees to pay any and all out of pocket
expenses (including reasonable attorneys’ fees and expenses) incurred by Lender in enforcing any rights under this Indemnity (such
expenses, together with all of the Limited Recourse Obligations and all of the Full Recourse Obligations, being the “Indemnified
Obligations”). Indemnitor hereby further agrees that if Borrower shall fail to pay in full when due and owing, whether at
stated maturity, by acceleration, lapse of time or otherwise, any of the Indemnified Obligations, such Indemnitor will promptly pay the
same, upon written demand and that in the case of any extension of time of payment or renewal of any of the Obligations or the Indemnified
Obligations, the same will be promptly paid in full when due and owing (whether at extended maturity, by acceleration or otherwise) in
accordance with the terms of such extension or renewal. Any payment hereunder shall be due no later than thirty (30) days following the
giving of a written demand therefor from Lender to an Indemnitor in accordance with Section 8 below. If the amounts due hereunder
are not paid to Lender as aforesaid within such thirty (30) day period following written demand, then the same shall bear interest at
the Default Rate from the date of delivery of the initial written demand until the date such amounts due hereunder have been paid in full
(which interest shall be included within the meaning of Indemnified Obligations). All payments by an Indemnitor on account of this Indemnity
shall be paid in U.S. Dollars.


 






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(b) Each
and every default relating to the Indemnified Obligations shall give rise to a separate cause of action hereunder by Lender and separate
suits may be brought hereunder as each such cause of action arises.


 


(c) This
Indemnity is an irrevocable, absolute, continuing guaranty of payment and performance and not a guaranty of collection. This Indemnity
may not be revoked by Indemnitor and shall continue to be effective with respect to any Indemnified Obligations arising or created after
any attempted revocation by Indemnitor until terminated pursuant to Section 10 hereof. Indemnitor guarantees that the Indemnified
Obligations will be paid strictly in accordance with the terms of this Indemnity and the other Loan Documents (if, and to the extent,
applicable) regardless of any Legal Requirements now or hereafter in effect in any jurisdiction affecting any of such terms or the rights
of Lender with respect thereto. The liability of Indemnitor under this Indemnity shall be joint and several, absolute and unconditional
irrespective of:


 


(i) any
lack of validity or enforceability of the Note, the Mortgage or any other agreement or instrument relating thereto;


 


(ii) any
change in the time, manner or place of payment of, or in any other term of, all or any of the Obligations or the Indemnified Obligations,
or any other amendment of, waiver of or any consent to departure from the Note;


 


(iii) any
exchange, release or non-perfection of any collateral, or any release or amendment or waiver of consent to departure from any other indemnity
or any guaranty or acknowledgment of debt, for all or any of the Obligations;


 


(iv) the
existence of any other guaranties or acknowledgments of debt of the Indemnified Obligations or the Obligations or the exchange, release,
amendment or waiver of any such guaranties or acknowledgments of debt, or the enforceability thereof;


 


(v) any
other circumstance which might otherwise constitute a defense available to, or a discharge of, Borrower, Indemnitor or a guarantor or
a Person giving an acknowledgment of debt; or


 


(vi) the
insolvency, bankruptcy, arrangement, adjustment, composition, liquidation, disability, dissolution or lack of power of Borrower, Indemnitor
or any other Person at any time liable for the payment of all or part of the Obligations or the Indemnified Obligations; or any dissolution
of Borrower or Indemnitor or any sale, lease or transfer of any and all of the assets of Borrower or Indemnitor or any changes in the
shareholders, partners or members of Borrower or Indemnitor, except as may be expressly set forth in the Loan Agreement; or any reorganization
of Borrower or Indemnitor, except as may be expressly set forth in the Loan Agreement.


 


Indemnitor agrees that Lender
may at any time and from time to time, either before or after the maturity thereof, without notice to or further consent of such Indemnitor,
extend the time of payment of, exchange or surrender any collateral for, or renew any of the Obligations or the Indemnified Obligations,
and may also make any agreement with Borrower or with any other party to or Person liable on any of the Obligations or the Indemnified
Obligations, or interested therein, for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part,
or for any modification of the terms thereof or of any agreement between Lender and Borrower or any of such other party or Person, without
in any way impairing or affecting this Indemnity. Indemnitor agrees that Lender may resort to Indemnitor for payment of any of the Indemnified
Obligations, whether or not Lender shall have resorted to or foreclosed against the Mortgage, or any other collateral security, or any
other guaranties or acknowledgments of debt, or shall have proceeded against Borrower or any other obligor principally or secondarily
obligated with respect to any of the Obligations.


 






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It shall not be necessary
for Lender (and Indemnitor hereby waives any rights that such Indemnitor may have to require Lender), in order to enforce the obligations
of such Indemnitor hereunder, first to (i) institute any suit or exhaust any remedies against Borrower or any other Person liable under
the Loan Documents, (ii) enforce Lender’s rights against Indemnitor any other guarantors of the Obligations or the Indemnified Obligations,
(iii) enforce Lender’s right against any collateral which shall ever have been given to secure the Loan, (iv) join Borrower
or any other Person liable on the Indemnified Obligations in any action seeking to enforce this Indemnity, or (v) resort to any other
means of obtaining payment of the Obligations or the Indemnified Obligations. Lender shall not be required to mitigate damages or take
any other action to reduce, collect or enforce the Obligations or the Indemnified Obligations.


 


This Indemnity shall continue
to be effective or be reinstated, as the case may be, if at any time any payment of any of the Obligations or the Indemnified Obligations
is rescinded or must otherwise be returned by Lender upon the insolvency, bankruptcy or reorganization of Borrower, Indemnitor or otherwise,
all as though such payment had not been made. In addition, notwithstanding anything to the contrary contained in this Indemnity or in
any of the other Loan Documents, Lender shall not be deemed to have waived any right which Lender may have under Sections 506(a), 506(b),
1111(b) or any other provision of the United States Bankruptcy Code, as such sections may be amended, or corresponding or superseding
sections of the Bankruptcy Amendments and Federal Judgeship Act of 1984, to file a claim for the full amount of the Obligations secured
by the Mortgage or to require that all collateral shall continue to secure all of the Obligations owing to Lender in accordance with the
Loan Documents.


 


SECTION 4. Waiver.
Indemnitor hereby waives promptness, diligence, notice of acceptance and any other notice with respect to any of the Obligations or the
Indemnified Obligations and this Indemnity and any requirement that Lender protect, secure, perfect or insure any security interest or
Lien or any property subject thereto or exhaust any right or take any action against Borrower or any other Person or entity or any collateral.


 


SECTION 5. Subrogation.
Indemnitor irrevocably waives any rights which it may acquire by way of subrogation under this Indemnity against Borrower or any other
guarantor or a Person giving an acknowledgment of debt of the Obligations or Indemnified Obligations, by any payment made hereunder or
otherwise, until all the Obligations or Indemnified Obligations have been paid in full. For the avoidance of any doubt, and in accordance
with Section 8.23 of the Loan Agreement, Guarantor may receive, as the sole member of Borrower, periodic distributions of net cash flow
from operations of the Project so long as an Event of Default does not exist, the Loan is not in a Cash Sweep Period, and such distributions
are made pursuant to the organizational documents of Borrower.


 


SECTION 6. Representations
and Warranties. Indemnitor hereby represents and warrants that it has full legal right and power to execute and deliver this Indemnity
and perform its obligations hereunder; that there is no provision of any agreement or contract binding on it that would prohibit, conflict
with or in any way prevent the execution, delivery and performance of this Indemnity; that there is no action, suit, proceeding or investigation
pending, or to Indemnitor’s knowledge, threatened against Indemnitor that might affect the financial condition of Indemnitor or
the ability of Indemnitor to perform any of its obligations hereunder; that all financial statements of Indemnitor and other documents,
reports and certificates delivered to Lender by or on behalf of Indemnitor in connection with Lender’s underwriting of the Loan
are true and correct as of the respective dates and there has been no material adverse change in Indemnitor’s financial condition
since such dates; and that Indemnitor is and shall remain in full compliance with all of the Financial Covenants. Indemnitor acknowledges
that this Indemnity is an “instrument for the payment of money only” within the meaning of New York Civil Practice Law and
Rules Section 3213. All of the representations and warranties made by Indemnitor shall survive the execution hereof.


 






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SECTION 7. Amendments,
etc. No amendment or waiver of any provision of this Indemnity nor consent to any departure by Indemnitor therefrom shall in any event
be effective unless the same shall be in writing and signed by Lender, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given.


 


SECTION 8. Notices.
Any approval, consent, demand, notice, request or other communication which any party hereto may be required or may desire to give hereunder
shall be in writing and shall be deemed to have been properly given if given in the manner provided for the giving of notices under Section 11.1
of the Loan Agreement, addressed to the party for whom it is intended at its address set forth in the Loan Agreement and below, as applicable:


 


	Indemnitor:	Wheeler REIT, L.P.
	 	2529 Virginia Beach Blvd.
	 	Virginia Beach, VA 23452
	 	Attention: M. Andrew Franklin
	 	Email: afranklin@whlr.us
	 	 
	With a copy to:	Stuart Pleasants
	 	2529 Virginia Beach Blvd.
	 	Virginia Beach, VA 23452
	 	Email: stuart@stuartpleasants.com


 


SECTION 9. No Waiver; Remedies.
No failure on the part of Lender to exercise, and no delay in exercising, any right hereunder or under any of the other Loan Documents
shall operate as a waiver thereof; nor shall any single or partial exercise of any right hereunder preclude any other or further exercise
thereof or the exercise of any other right. The remedies herein provided are cumulative, may be exercised singly or concurrently, and
are not exclusive of any remedies provided by Law. To the extent that any collateral is located outside New York State, Indemnitor acknowledges
that any restrictions, limitations and prohibitions in New York Real Property Actions and Proceedings Law §§ 1301 and 1371 do
not apply.


 


Indemnitor waives the benefit
of any statute of limitations affecting Indemnitor’s liability hereunder or the enforcement thereof, and any act which shall defer
or delay the operation of any statute of limitations applicable to any of Indemnitor’s obligations hereunder shall similarly operate
to defer or delay the operation of such statute of limitations applicable to Indemnitor’s liability hereunder to the extent permitted
by applicable law.


 


SECTION 10. Continuing
Indemnity. This Indemnity is a continuing indemnity and shall remain in full force and effect until all of the Indemnified Obligations
have been indefeasibly paid, performed and completed in full.


 


SECTION 11. Severability.
Any provision of this Indemnity, or the application thereof to any Person or circumstance, which, for any reason, in whole or in part,
is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions of this Indemnity (or the remaining portions of such provision) or the
application thereof to any other Person or circumstance, and any such prohibition or unenforceability in any jurisdiction shall not invalidate
or render unenforceable such provision (or portion thereof) or the application thereof to any Person or circumstance in any other jurisdiction.


 






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SECTION 12. Entire Agreement;
Amendments. This Indemnity contains the entire agreement of the parties with respect to the subject matter hereof and supersedes all
prior oral or written agreements or statements relating to such subject matter, and none of the terms and provisions hereof may be waived,
amended or terminated except by a written instrument signed by the party against whom enforcement of the waiver, amendment or termination
is sought.


 


SECTION 13. Successors
and Assigns. This Indemnity shall be binding upon and shall inure to the benefit of Lender and Indemnitor and its and their respective
heirs, personal representatives, successors and assigns. This Indemnity may be assigned by Lender with respect to all or any portion of
the Indemnified Obligations, and when so assigned, Indemnitor shall be liable under this Indemnity to the assignee(s) for the full payment
and performance of the Indemnified Obligations guaranteed hereby so assigned without in any manner affecting the liability of such Indemnitor
hereunder to Lender with respect to the Indemnified Obligations guaranteed hereby (to the extent retained by Lender). This Indemnity may
not be assigned by Indemnitor without the written consent of Lender. Without limiting the generality of the foregoing, Lender may assign
or otherwise transfer the Note to any other Person and such other Person shall thereupon become vested with all the rights in respect
thereof granted to Lender herein or otherwise.


 


SECTION 14. ADDITIONAL
WAIVERS IN THE EVENT OF ENFORCEMENT. INDEMNITOR HEREBY EXPRESSLY AND UNCONDITIONALLY WAIVES, IN CONNECTION WITH ANY SUIT, ACTION OR
PROCEEDING BROUGHT BY OR ON BEHALF OF LENDER ON THIS INDEMNITY, ANY AND EVERY RIGHT SUCH INDEMNITOR MAY HAVE TO (I) INJUNCTIVE RELIEF,
(II) A TRIAL BY JURY, (III) INTERPOSE ANY COUNTERCLAIM THEREIN (OTHER THAN COMPULSORY COUNTERCLAIMS) AND (IV) HAVE THE SAME CONSOLIDATED
WITH ANY OTHER OR SEPARATE SUIT, ACTION OR PROCEEDING. NOTHING HEREIN CONTAINED SHALL PREVENT OR PROHIBIT SUCH INDEMNITOR FROM INSTITUTING
OR MAINTAINING A SEPARATE ACTION AGAINST LENDER WITH RESPECT TO ANY ASSERTED CLAIM.


 


SECTION 15. Waiver of Jury
Trial. Lender and Indemnitor hereby irrevocably and unconditionally waive, in connection with any suit, action or proceeding brought
by or on behalf of Lender or such Indemnitor with respect to this Indemnity, any and every right they may have to a trial by jury.


 


SECTION 16. Governing Law.
This Indemnity shall be governed by, and construed in accordance with, the Legal Requirements of the State of New York, without giving
effect to New York’s principles of conflicts of law. Indemnitor hereby irrevocably submits to the nonexclusive jurisdiction of any
New York State or Federal court located in the County of New York in any action or proceeding arising out of or relating to this Indemnity.


 


SECTION 17. Financial Statements
and Covenants.


 


(a) Indemnitor
covenants and agrees that it shall, at all times during the term of the Loan, (i) remain in full compliance with the Financial Covenants
and, (ii) in a timely manner, enable Borrower to comply with its obligations under Article 7 of the Loan Agreement.


 


(b) Indemnitor
shall not, at any time while an Event of Default exists, enter into or effectuate any transaction that would materially reduce the net
worth of such Indemnitor, including the payment of any dividend or distribution to a shareholder, or the redemption, retirement, purchase
or other acquisition for consideration of any stock in such Indemnitor. For the avoidance of any doubt, and in accordance with Section
8.23 of the Loan Agreement, Guarantor may receive, as the sole member of Borrower, periodic distributions of net cash flow from operations
of the Project so long as an Event of Default does not exist, the Loan is not in a Cash Sweep Period, and such distributions are made
pursuant to the organizational documents of Borrower.


  


SECTION 18. Counterparts;
Electronic Signatures. This Indemnity may be executed in multiple counterparts, each of which shall constitute an original, but all
of which shall constitute one document; provided, however, in making proof of this Indemnity, it shall be unnecessary to produce or account
for more than one counterpart to which signatures (acknowledged as applicable) from other counterparts may be attached. Delivery of an
executed counterpart of a signature page of this Indemnity or any other Loan Document by facsimile or electronic image (including, without
limitation, “pdf,” “tif” or “jpg” format) will be effective as a delivery of an original of a manually
executed counterpart of this Indemnity or such other Loan Document with the same force and effect as if such facsimile or electronic image
signature page was an original thereof. Each party intends to be bound by any such facsimile and electronic image signatures, is aware
that the Lender will rely on such signatures, and shall not raise, and waives, any defense to, the validity, binding nature of, or enforceability
of this Indemnity or such other Loan Document based on the form of signature. An original executed counterpart shall be delivered by,
or on behalf of, Borrower and/or Indemnitor, as applicable, to Lender following delivery of the facsimile or electronic image, but the
failure to deliver such original executed counterpart shall not affect the validity, binding nature, or enforceability of this Indemnity
or such other Loan Document. INDEMNITOR AND LENDER AGREE THAT ELECTRONIC SIGNATURES OF THE PARTIES, WHETHER DIGITAL OR ENCRYPTED, IF AND
AS INCLUDED IN THIS INDEMNITY AND THE OTHER LOAN DOCUMENTS ARE INTENDED TO AUTHENTICATE THIS WRITING AND TO HAVE THE SAME FORCE AND EFFECT
AS MANUAL SIGNATURES. “ELECTRONIC SIGNATURE” MEANS ANY ELECTRONIC SOUND, SYMBOL OR PROCESS ATTACHED TO OR LOGICALLY ASSOCIATED
WITH A RECORD AND EXECUTED AND ADOPTED BY A PARTY WITH THE INTENT TO SIGN SUCH RECORD, INCLUDING FACSIMILE OR E-MAIL ELECTRONIC SIGNATURES.


 


[signature page follows]


 




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IN WITNESS WHEREOF, Indemnitor
has duly executed and delivered this Indemnity as of the date first written above.


 


INDEMNITOR:


 


WHEELER REIT, L.P.,


a Virginia limited partnership,


its sole member


 


	By: 	Wheeler Real Estate Investment Trust, Inc., 	 
	 	a Maryland corporation, 	 
	 	its General Partner	 


 


	 	By:	/s/ M. Andrew Franklin	 
	 	Name:   	M. Andrew Franklin	 
	 	Title:	President and Chief Executive Officer	 


 





	State of Virginia	)
	City OF Virginia Beach	) ss.
	 	)





 


On the 18th day of October before me, the
undersigned, a Notary Public in and for said state, personally appeared M. Andrew Franklin, personally known to me or proved to me on
the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed
the same in his capacity and that by his signature on the instrument, the person or the entity upon behalf of which the person acted,
executed the instrument.


 


	 	/s/ Kathleen Fennessy Agustin
	 	Notary Public
	[SEAL]	Commonwealth of Virginia
	 	Registration No. 7305242
	 	My Commission Expires June 30, 2025







     


     


    

 


SCHEDULE I


 


BORROWERS


 


		1.	Cedar Brickyard, LLC, a Delaware limited liability company (“Brickyard I Borrower”)






		2.	Cedar Brickyard II, LLC, a Delaware limited liability company (“Brickyard II Borrower”)






		3.	Cedar-Fairview Commons, LLC, a Delaware limited liability company (“Fairview Borrower”)






		4.	Cedar-Gold Star Plaza, LLC, a Delaware limited liability company (“Gold Star Borrower”)






		5.	Cedar Golden Triangle, LLC, a Delaware limited liability company (“Golden Triangle Borrower”)






		6.	Cedar Hamburg, LLC, a Delaware limited liability company (“Hamburg Borrower”)






		7.	Pine Grove Plaza Associates, LLC, a Delaware limited liability company (“Pine Grove Borrower”)






		8.	Cedar Southington Plaza, LLC, a Delaware limited liability company (“Southington Borrower”)






		9.	Cedar-Trexler, LLC, a Delaware limited liability company (“Trexler Borrower”)






		10.	Washington Center L.L.C. 1, a Delaware limited liability company (“Washington I Borrower”)






		11.	Greentree Road L.L.C. 1, a Delaware limited liability company (“Washington II Borrower”)






		12.	Cedar-PC Plaza, LLC, a Delaware limited liability company (“Webster I Borrower”)






		13.	Cedar-PC Annex, LLC, a Delaware limited liability company (“Webster II Borrower”)



 




     


     


    

 


EXHIBIT A


 


Form of Ground Lease Estoppel


 


ESTOPPEL CERTIFICATE



WITH RESPECT TO


GROUND LEASE


 


		To:	Guggenheim Real Estate, LLC, its successors and assigns (“Lender”)



c/o Guggenheim Partners Investment Management, LLC


100 Willshire Boulevard, Suite 500


Santa Monica, California 90401


Attention: Head of Real Estate


 


Cedar Southington Plaza, LLC (“Tenant”)


c/o Wheeler Real Estate Investment Trust, Inc.


2529 Virginia Beach Blvd.


Virginia Beach, VA 23452


 


Date:_______________________, 20___


 


WHEREAS, HERBERT R. OLSON,
MURIEL S. OLSON, and NORMA OLSON-BARTLEY and PAUL R. OLSON, as co-trustees of the NORMAN E. OLSON REVOCABLE TRUST (collectively, the “Prior
Landlord”) and Tenant entered into that certain Ground Lease dated May 17, 1972, between Raymond P. Olson, Herbert R. Olson
and Norman E. Olson (“Original Ground Landlord”) and Robert S. Carlson (“Carlson”), as amended and
supplemented by (i) that certain Separate Rent Agreement under Lease dated May 17, 1972 dated May 17, 1972, between Original Ground Landlord
and Carlson, (ii) that certain Lease and Separate Rent Agreement Amendment dated September 18, 1978, between Herbert R. Olson and Norman
E. Olson (“Second Ground Landlord”) and Southington Center Associates (“Southington”), (iii) that
certain Amendment to Separate Rent Agreement dated August 1982, between Second Ground Landlord and Southington, (iv) that certain Assignment
and Assumption of Lease dated July 26, 1984, between Southington and Meadows Management Retirement Plan (001) (“Meadows”),
(v) that certain Amendment to Separate Rent Agreement Amending Rent as of March 14, 1987 dated September, 1987 between Second Ground Landlord
and Southington ‘84 Associates, a New Jersey general partnership (“Southington ‘84”), (vi) that certain
Amendment to Separate Rent Agreement Amending Rent as of March 14, 1992 dated April 9, 1992 between Second Ground Landlord and Southington
‘84, (vii) that certain Amendment to Separate Rent Agreement Amending Rent as of March 14, 1997 dated July 25, 1997 between Herbert
R. Olson and Estate of Norman E. Olson and Southington ‘84, (viii) that certain Amendment to Separate Rent Agreement Amending Rent
as of March 14, 2002 dated August 14, 2002, between Prior Landlord and Southington ‘84, (ix) that certain Assignment and Assumption
of Ground Lease dated August 29, 2003, between Southington ‘84 and Cedar Southington Plaza, LLC (“Cedar”), (x)
that certain Ground Lease Amendment dated August, 2005 between Prior Landlord and Tenant, (xi) that certain Amendment to Separate Rent
Agreement Amending Rent as of March 14, 2007 under Lease Dated May 17, 1972 dated December 19, 2008, between Second Ground Landlord and
Carlson and (xx) that certain Amendment to Ground Lease Rents dated June 25, 2012 (collectively, the “Ground Lease”),
for premises located at 235 Queen Street, Southington, Connecticut (“Ground Lease Premises”); and


 


WHEREAS, the fee interest
in the Ground Lease Premises and the landlord’s interest under the Ground Lease are currently held as follows: (i) with respect
to a twenty-five percent (25%) interest, by Adam Chamberlain, Keith W. Carroll and Amber J. Carroll, as trustees of the Herbert R. Olson
testamentary trust; (ii) with respect to a twenty-five percent (25%) interest, (x) two-thirds (2/3) thereof by Robert S. Stanek as trustee
of the Revocable Trust Agreement of Muriel Olson dated April 12, 2000, and (y) one-third (1/3) thereof by Hilaree C. Olson, individually;
(iii) with respect to a twenty-five percent (25%) interest, by James R. Borck as executor of the Estate of Paul R. Olson; and (iv) with
respect to a twenty-five percent (25%) interest, by Norman Olson-Bartley, individually (collectively “Landlord”); and


 






     


     


    

 


WHEREAS, Tenant has entered
into or is about to enter into a certain loan arrangement (as may be amended or modified, the “Loan”) with Lender which
is or will be evidenced and/or secured by, amongst other documents, instruments and agreements, a certain Term Loan Agreement dated on
or about the date hereof (as may be amended or modified, the “Loan Agreement”) entered into by and among Tenant and
other entities (collectively, the “Borrower”) and Lender, and an Open-End Leasehold Mortgage, Assignment of Rents and
Leases, Security Agreement and Fixture Filing dated on or about the date hereof (as may be amended or modified, the “Mortgage”),
made by Tenant for the benefit of Lender, which Mortgage encumbers the Tenant’s leasehold interest in the Ground Lease Premises;
and


 


WHEREAS, as a condition to
entering into the Loan, Lender has requested that the Landlord provide Lender with this Estoppel Certificate (this “Certificate”)
with respect to the Ground Lease; and


 


WHEREAS, the Landlord understands
and agrees that Lender is relying on Landlord’s statements herein in connection with Tenant and Lender’s making and maintaining
the Loan;


NOW, THEREFORE, for good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Landlord hereby represents and certifies to, and agrees with, Tenant
and Lender as follows:


 


1. The
Ground Lease is unmodified and is in full force and effect according to its terms.


 


2. A
complete copy of the Ground Lease is attached hereto at Exhibit A. There are no other written agreements or understandings between
the Landlord and the Tenant with respect to the Ground Lease and/or the Ground Lease Premises that modify the terms or provisions of the
Ground Lease.


 


3. Capitalized
terms used herein and not otherwise defined shall have the meaning ascribed to said capitalized terms in the Ground Lease.


 


4. To
the Landlord’s knowledge, neither the Landlord nor the Tenant is in default under the Ground Lease, nor does any state of facts
exist which, with the passage of time or the giving of notice or both, could constitute a default or an Event of Default under the Ground
Lease. To the Landlord’s knowledge, there are no existing claims which the Landlord has against the Tenant with respect to or arising
under the Ground Lease.


 


5. To
the Landlord’s knowledge, there are no defenses or offsets against the enforcement of the Ground Lease by or against Landlord or
Tenant.


 


6. Except
as expressly set forth in the Ground Lease, and subject to the terms, conditions and restrictions therein, the Landlord has no right or
option to terminate the Ground Lease or the Tenant’s rights thereunder.


 


7. The
Rent currently due under the Ground Lease is $205,730.84 per annum, payable in equal monthly installments of $17,144.24 per month, which
has been paid through August 1, 2022. 


 


8. Tenant
has paid to Landlord, and Landlord is currently holding, the Security Deposit in the amount of $0.00.


 


9. The
Term of the Ground Lease will terminate on May 31, 2071. 


 






     


     


    

 


10. The
Landlord acknowledges that:


 


		a.	Lender is a “Recognized Lender” as defined in Section 31.1 of
the Ground Lease and is entitled to all notices and cure rights afforded to a Recognized Lender pursuant to Article 31 of the Ground Lease,
including, without limitation, the right to enter into a “new lease” pursuant to Section 31.10 if the Ground Lease is ever
terminated. 



 


		b.	The Mortgage (a copy of which has been provided to Landlord) is a “Security
Instrument” as defined in Section 31.2 of the Ground Lease. 



 


11. This
Certificate may be executed and delivered by .pdf file and upon such delivery the .pdf signature will be deemed to have the same effect
as if the original signature had been delivered to the other party.


 


12. Copies
of all notices to be provided to Lender, as a leasehold mortgagee, under the Ground Lease shall be provided as follows:


 


Guggenheim Real Estate, LLC


c/o Guggenheim Partners Investment Management, LLC


100 Wilshire Boulevard, Suite 500


Santa Monica, California 90401


Attention: Head of Real Estate


E-Mail: GREPortfolio@guggenheimpartners.com


 


With a copy to: Guggenheim Real Estate, LLC


c/o Guggenheim Partners Investment Management, LLC


231 S. Bemiston Avenue, Suite 1250


St. Louis, Missouri 63105


Attention: Jennifer A. Marler


E-Mail: Jennifer.Marler@guggenheimpartners.com


 


With a copy to: Dentons US LLP


4520 Main Street, Suite 1100


Kansas City, Missouri 64111


Attention: Sarah Armendariz, Esq.


E-Mail: Sarah.Armendariz@dentons.com


 


[Remainder of Page Intentionally Blank]


 




     


     


    

 


IN WITNESS WHEREOF, Landlord has executed
this Certificate as of the date first written above.


 


	 	 
	 	Adam Chamberlain, as trustee
	 	 
	 	 
	 	Keith W. Carroll, as trustee
	 	 
	 	 
	 	Amber J. Carroll, as trustee
	 	 
	 	 
	 	Robert S. Stanek, as trustee of the Revocable Trust Agreement of Muriel Olson dated April 12, 2000
	 	 
	 	 
	 	Hilaree C. Olson, individually
	 	 
	 	 
	 	James R. Borck as executor of the Estate of Paul R. Olson
	 	 
	 	 
	 	Norman Olson-Bartley, individually


 


[Signature Page to Estoppel Certificate with Respect
to Ground Lease]


 




     


     


    

 


EXHIBIT A


 


Ground Lease


[attached]