Exhibit
10.44


 


	

     
	Wheeler
    Real Estate Investment Trust, Inc. 

    Riversedge North 

    2529 Virginia Beach Boulevard 

    Virginia Beach, VA 23452



 


 


 


July
8, 2021



 


		TO:	Magnetar
                                            Structured Credit Fund, LP

                                            Magnetar Longhorn Fund LP

                                            Magnetar Lake Credit Fund LLC

                                            Purpose Alternative Credit Fund – F LLC

                                            Purpose Alternative Credit Fund – T LLC

                                            AY2 Capital LLC



 


		Re:	Rights
                                            Offering - Backstop Commitment



 


Ladies and
Gentlemen:


 


Reference
is made to: (i) the Registration Rights Agreement, dated as of March 12, 2021 (the “RRA”), among Wheeler Real Estate
Investment Trust, Inc., a Maryland corporation (the “Company”) and the holders from time to time of the Magnetar/AY2
Warrants (“Investors”); (ii) the Registration Statement on Form S-11, filed with the Securities and Exchange Commission
on July 8, 2021 (the “Form S-11”); (iii) the rights offering notice sent to each of the Backstop Parties (as
defined below) on June 2, 2021 (the “Rights Offering Notice”); and (iv) the election notice to backstop the Rights
Offering (as defined below) that the Backstop Parties sent to the Company on June 16, 2021 whereby the Backstop Parties exercised their
Backstop Right (as defined below) in respect of the Rights Offering (as defined below). Terms used but not defined herein shall have
the meaning ascribed to them in the RRA and Form S-11, as applicable.


 


The
Company delivered the Rights Offering Notice to Magnetar Structured Credit Fund, LP, Magnetar Longhorn Fund LP, Magnetar Lake Credit
Fund LLC, Purpose Alternative Credit Fund – F LLC, Purpose Alternative Credit Fund – T LLC and AY2 Capital LLC (collectively,
the “Backstop Parties” and each individually, a “Backstop Party”) on June 2, 2021, indicating the
Company’s intention to conduct a rights offering (the “Rights Offering”) by issuing to holders of its common
stock (“Common Shareholders”) at 5:00 p.m., New York City time, on June 1, 2021 (the “Record Date”)
on a pro rata basis non-transferable subscription rights (the “Rights”) to purchase up to $30,000,000 in aggregate
principal amount of the Company’s 7.00% Senior Subordinated Convertible Notes due 2031 (the “Notes”), with one
(1) Right issuable for every eight (8) shares of common stock owned (the “Basic Subscription Privilege”). The Form
S-11 further describes the terms of the Rights Offering, the Rights and the Notes.


 


If
the Rights Offering is not fully subscribed, then Common Shareholders who fully exercise their Basic Subscription Privilege will be
eligible to subscribe for an over-subscription privilege, which will allow them to subscribe for an additional principal amount of
the Company’s Notes issuable pursuant to Rights that were not exercised by other Common Shareholders (the
“Over-Subscription Privilege”). The Notes sold through the Over-Subscription Privilege will be sold at the same
subscription price and, if necessary, subject to proration based on relative Common Stock ownership. As indicated in the Form S-11,
we intend to apply to list the Notes for trading on the Nasdaq.


 






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The
RRA grants the Backstop Parties the right to elect to subscribe for any unsubscribed amount not fully subscribed for by the Common Shareholders
or by Waterfall. The Company informed the Backstop Parties on June 24, 2021 that Waterfall determined that it would not subscribe for
any such unsubscribed amount.


 


Each
of the Backstop Parties, severally and not jointly, irrevocably commits and agrees as follows:


 


1. Such
Backstop Party irrevocably commits (such commitment a “Backstop Commitment” and collectively with those commitments
of the other Backstop Parties, the “Backstop Commitments”) to purchase any and all Notes that remain unsubscribed
by the Common Shareholders (after any exercises of the Over-Subscription Privilege) upon the expiration of the offer period for the Rights
Offering (the “Offer Period”) in an aggregate principal amount for such Backstop Party equal to (a) its Notes Commitment
Percentage as set forth on Schedule 1 hereto multiplied by (b) the Unsubscribed Notes Amount (as defined below) (the product
of clauses (a) and (b) for such Backstop Party, its “Backstop Commitment Amount”). The term “Unsubscribed
Notes Amount” shall mean such principal amount of Notes equal to the excess, if any, of (i) the aggregate principal amount
of Notes that may be purchased pursuant to all Rights issued by the Company in connection with the Rights Offering, over (ii) the
aggregate principal amount of Notes that are purchased by common shareholders in the Rights Offering.


 


2. Each
of the foregoing Backstop Commitments is subject solely to (a) the receipt by such Backstop Party of written notice from the Company
within six (6) Business Days of expiration of the Offer Period but prior to the termination of the Backstop Commitments pursuant to Section
3 below that each Backstop Party must fund its Backstop Commitment and setting forth the amount of the Backstop Commitment to be
funded, which, for each Backstop Commitment Party, shall not be in excess of the Backstop Commitment Amount, and (b) the receipt
by each Backstop Party of its Notes thereupon purchased. The Company agrees to issue such Notes simultaneously with the receipt by the
Company of the proceeds of such funding. Each Backstop Party agrees to fund its Backstop Commitment within eleven (11) calendar days
following written notice from the Company that such Backstop Party must so fund under this Letter Agreement.


 


3. This
Letter Agreement, including each Backstop Party’s obligation to fund the Backstop Commitment, terminates upon the earliest to occur
of (a) the receipt by the Company of an aggregate of $30,000,000 in proceeds from the sale of Notes to participating Common Shareholders
in the Rights Offering (including the Backstop Parties as a result of their purchase of Notes under this Letter Agreement) (b) fifteen
(15) Business Days after the expiration of the Offer Period if the Company has not provided the Backstop Parties with the written notice
specified in Section (2)(a) prior to such date (provided, however, that such fifteen (15) Business Day period in this clause (b)
can be extended in the sole discretion of the Backstop Parties, (c) the date on which the Backstop Parties have provided the Company
with cash in the amount of the full amount of the Backstop Commitments on the terms set forth in this Letter Agreement (assuming the
Company has simultaneously therewith issued the corresponding Notes to such Backstop Party as required under Section 2 hereof)
and (d) September 15, 2021. Upon any such termination of this Letter Agreement, all obligations of the Backstop Parties hereunder
will terminate (other than the indemnity and expense reimbursement obligations of the Company set forth herein) and none of the parties
hereto shall have any liability under this Letter Agreement whatsoever to any other party, except in regard to the indemnity and expense
reimbursement obligations of the Company set forth herein (which shall survive any such termination).


 



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4. The
obligation of any Backstop Party to fund its Backstop Commitment may not be assigned to any other person or entity without the prior
written consent of the Company; provided, however, that any Backstop Party may assign all or a portion of its obligations
hereunder to any other Backstop Party. The Company may not assign or delegate any of its rights or obligations hereunder to any other
person or entity without the prior written consent of the Backstop Parties. For the avoidance of doubt however, this Section 4
shall not restrict the ability of the Backstop Parties to transfer any Notes purchased by them hereunder.


 


5. This
Letter Agreement is binding on and solely for the benefit of and enforceable by the Backstop Parties and the Company, and nothing set
forth in this Letter Agreement is to be construed to confer upon or give to any other person any benefits, rights or remedies under or
by reason of, or any rights to enforce or cause the Company to enforce, the Backstop Commitments or any provisions of this Letter Agreement.


 


6. Notwithstanding
anything to the contrary contained herein, the Company, in accepting the Backstop Commitments hereunder, agrees and acknowledges the
liability and obligations of each Backstop Party hereunder shall not exceed its respective Backstop Commitment Amount. Each Backstop
Party’s commitment herein to contribute or otherwise fund to the Company its respective Backstop Commitment Amount shall be the
sole and exclusive remedy of the Company against such Backstop Party and its Affiliates in respect of this Letter Agreement, and the
Company, on behalf of itself and its Affiliates, hereby waives all other rights and remedies it may have against the Backstop Parties
and their respective Affiliates, whether sounding in contract or tort, or whether at law or in equity, or otherwise, relating to this
Letter Agreement, including, for the avoidance of doubt, any right to seek damages against such Backstop Party in excess of such Backstop
Commitment Amount.


 


7. The
Company agrees to indemnify and hold harmless each Backstop Party and each of their Affiliates and their respective officers, directors,
employees, agents, advisors and other representatives (each an “Indemnified Party”) from and against (and will reimburse
each Indemnified Party as the same are incurred for) any and all claims, damages, losses, liabilities and expenses (including, without
limitation, the reasonable fees, disbursements and other charges of counsel) that may be incurred by or asserted or awarded against any
Indemnified Party, in each case arising out of or in connection with or by reason of (including, without limitation, in connection with
any investigation, litigation or proceeding or preparation of a defense in connection therewith) the Backstop Parties agreeing to backstop
the Rights Offering as provided in this Letter Agreement, except to the extent such claim, damage, loss, liability or expense is found
in a judgment by a court of competent jurisdiction to have resulted from (i) such Indemnified Party’s gross negligence or
willful misconduct or (ii) such Indemnified Party’s material breach of its obligations under this Letter Agreement. In the
case of an investigation, litigation or proceeding to which the indemnity in this paragraph applies, such indemnity shall be effective
whether or not such investigation, litigation or proceeding is brought by the Company, its subsidiaries, its equityholders or creditors
or an Indemnified Party, whether or not an Indemnified Party is otherwise a party thereto and whether or not any aspect of the Rights
Offering is consummated. The Company also agrees that no Indemnified Party shall have any liability (whether direct or indirect, in contract
or tort, or otherwise) to the Company or the Company’s subsidiaries or Affiliates or their respective equity holders or creditors
arising out of, related to or in connection with any aspect of the Rights Offering, except to the extent of direct, as opposed to special,
indirect, consequential or punitive, damages determined in a judgment by a court of competent jurisdiction to have resulted from such
Indemnified Party’s gross negligence or willful misconduct or material breach of its obligations under this Letter Agreement.


 



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8. This
Letter Agreement shall be governed by and construed in accordance with the laws of the State of New York applied to contracts to be performed
wholly within the State of New York, without regard to conflicts of laws principles. Any judicial proceeding brought by or against any
party hereto with respect to this Letter Agreement must be brought in any court of competent jurisdiction located in the County and State
of New York, United States of America, and, by execution and delivery of this Letter Agreement, each of the parties hereto accepts for
itself, generally and unconditionally, the exclusive jurisdiction of the aforesaid courts, and irrevocably agrees to be bound by any
judgment rendered thereby in connection with this Letter Agreement. THE PARTIES HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY
JURY IN ANY ACTION, SUIT, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) BROUGHT BY ANY OF THEM AGAINST THE
OTHER IN ANY MATTERS ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS LETTER AGREEMENT.


 


9. This
Letter Agreement (together with the Form S-11 and the RRA) constitutes the sole agreement, and supersedes all prior agreements, understandings
and statements, written or oral, between the parties hereto with respect to the Backstop Parties’ election to backstop the Rights
Offering pursuant to Section 4.1 of the RRA. (For the avoidance of doubt, the Accordion Right is a separate right (in addition to the
Backstop Right) that the Investors may later exercise under the RRA.) The terms of this Letter Agreement may not be modified or otherwise
amended, or waived, except pursuant to a written agreement signed by all of the parties hereto. This Letter Agreement may be executed
in any number of counterparts, each of which shall be an original, but all of which together shall constitute one and the same instrument.


 


[Rest
of Page Left Intentionally Blank]


 






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	 	Very
    truly yours,
	 	 	 
	 	WHEELER
    REAL ESTATE INVESTMENT TRUST, INC.
	 	 	 
	 	By:	/s/ M. Andrew Franklin
	 	 	Name: 	M. Andrew Franklin
	 	 	Title:	Interim Chief Executive Officer


 





[Signature
Page to Backstop Commitment Letter]

 






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	Acknowledged and agreed as of the date first above written:	 
	 	 	 
	MAGNETAR STRUCTURED CREDIT FUND, LP	 
	By Magnetar Financial LLC, its general partner	 
	 	 	 
	By:	/s/ Michael Turro	 
	 	Name: 	Michael Turro	 
	 	Title:	Chief Compliance Officer	 
	 	 	 
	MAGNETAR LONGHORN FUND LP	 
	By Magnetar Financial LLC, its investment manager	 
	 	 	 
	By:	/s/
Michael Turro	 
	 	Name: 	Michael Turro	 
	 	Title: 	Chief Compliance Officer	 
	 	 	 
	MAGNETAR LAKE CREDIT FUND LLC	 
	By Magnetar Financial LLC, its manager	 
	 	 	 
	By:	/s/ Michael Turro	 
	 	Name: 	Michael Turro	 
	 	Title: 	Chief Compliance Officer	 
	 	 	 
	PURPOSE ALTERNATIVE CREDIT FUND - F LLC	 
	By Magnetar Financial LLC, its investment manager	 
	 	 	 
	By:	/s/ Michael Turro	 
	 	Name: 	Michael Turro	 
	 	Title: 	Chief Compliance Officer	 



 


[Signature Page to Backstop Commitment Letter]


 



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	PURPOSE ALTERNATIVE CREDIT FUND-T LLC	 
	By Magnetar Financial LLC, its investment manager	 
	 	 	 
	By:	/s/ Michael Turro	 
	 	Name: 	Michael Turro	 
	 	Title:  	Chief Compliance Officer	 



 


[Signature
Page to Backstop Commitment Letter]

 






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	AY2
    CAPITAL LLC	 
	By:
    Never Summer Holdings LLC, its Manager	 
	 	 	 
	By:	/s/ Harrison Wreschner	 
	 	Name:	Harrison Wreschner	 
	 	Title: 	Managing Member	 



 


[Signature
Page to Backstop Commitment Letter]





 



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Schedule
1

Backstop Commitments


 





	Backstop
    Party	 	 
    Applicable Percentage 

    Represents Applicable Percentage of Backstop Party on the Record Date.  	 	 
    Notes Commitment Percentage Represents Backstop Party’s pro rata share (i.e., relative to the other Backstop
    Parties) of total commitments hereunder by all Backstop Parties in connection with the Notes Offering.  
	Magnetar
    Structured Credit Fund, LP	 	 
    2.59%	 	 
    27.69%
	 	 	 	 	 
	Magnetar
    Longhorn Fund LP	 	 
    0.40%	 	 
    4.32%
	 	 	 	 	 
	 	 	 	 	 
	Magnetar
    Lake Credit Fund LLC	 	 
    2.79%	 	 
    29.78%
	 	 	 	 	 
	Purpose
    Alternative Credit Fund – F LLC	 	 
    2.61%	 	 
    27.89%
	 	 	 	 	 
	Purpose
    Alternative Credit Fund – T LLC	 	 
    0.87%	 	 
    9.32%
	 	 	 	 	 
	AY2
    Capital LLC	 	 
    0.59%	 	 
    1%1
	 	 	 	 	 
	Total:	 	 
    9.86 %(1)	 	 
    100 %



 





 






		(1)	 Based
                                            on 10,768,713 shares of Common Stock outstanding (on a Fully Diluted Basis (and excluding,
                                            for the avoidance of doubt, the Waterfall warrants)) as of the Record Date and assuming full
                                            (cash) exercise of the Warrants held by the entities listed above on such date.



 





 











		1	AY2
                                            Capital LLC has elected to participate in less than its Applicable Percentage and has no
                                            obligation to fund more than the stated percentage in this column.




 


 


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