INTERCREDITOR AGREEMENT
THIS INTERCREDITOR AGREEMENT (this
“Agreement”)
dated as of the 30th day of July, 2021, is made by and among
GK INVESTMENT HOLDINGS, LLC, a
Delaware limited liability company (“Lender
1”), GK INVESTMENT
PROPERTY HOLDINGS II, LLC, a Delaware limited liability company
(“Lender
2”), and GK SECURED
INCOME V, LLC, a Delaware limited liability company
(“Lender
3”), (Lender 1, Lender 2,
and Lender 3 are each a “Lender”
and collectively, the “Lenders”).
WITNESSETH:
WHEREAS, each of the Lenders has entered into a
secured lending arrangement with GK PREFERRED INCOME II (RIDGMAR)
SPE, LLC, a Delaware limited liability company and 1551 XXXXXXXXX
PARTNERS SPE, LLC, a Delaware limited liability company
(collectively, the “Company”);
WHEREAS, as part of each such lending arrangement,
the Company has issued a promissory note to Lender 1 in the
principal amount of Three Million Seven Hundred Thousand and 00/100
Dollars ($3,700,000.00), a promissory note to Lender 2 in the
principal amount of Three Million Five Hundred Thousand and 00/100
Dollars ($3,500,000.00), and a promissory note to Lender 3 in the
principal amount of Seven Hundred Fifty Thousand and 00/100 Dollars
($750,000.00) (all indebtedness and other obligations of the
Company to the Lenders as evidenced by each promissory note being
the “Loan
Obligations” and all
promissory notes being,
collectively, “Notes”);
WHEREAS, the Loan Obligations of each Lender is
secured by a Deed of Trust, Assignment of Leases and Rents and
Security Agreement (collectively, the “Mortgage and Security
Agreements”) in the real
property commonly known as 0000 Xxxxx Xxxx Xxxx, Xxxx Xxxxx,
Xxxxxxx Xxxxxx, Xxxxx (the “Property”)
granted by the Company to each Lender; and
WHEREAS, it is contemplated that the Mortgage and
Security Agreements held by each of the Lenders in the Property
shall rank pari passu on the terms and conditions set forth
herein.
NOW,
THEREFORE, in consideration of the mutual covenants set forth
herein, the Lenders agree as follows:
1. Each
Lender hereby acknowledges that the security interests held by each
of the Lenders pursuant to the Mortgage and Security Agreements
shall rank equally and ratably without priority over one another,
regardless of the order of time in which any such security
interests or claims arise, attach or are perfected by filing,
recording, possession, control or otherwise. Each Lender and its
Loan Obligation is listed in Schedule
1 attached
hereto.
2. The
Notes and the Mortgage and Security Agreements shall include all
renewals, replacements, modifications and extensions thereof, to
the extent that such renewals, replacements and modifications do
not increase the principal amount thereof.
3. The
principal amount of the Notes of the Lenders listed herein, or as
amended, may not exceed Eight Million and 00/100 Dollars
($8,000,000.00) in the aggregate (“Maximum
Amount”). All Notes must
be on the same payment terms which shall be monthly payments of
interest only, with a balloon payment of all principal and all
accrued and unpaid interest, on the maturity date. The Notes may
not be prepaid in whole or part without the Lenders’ approval
and must have coterminous maturity dates. The terms of this
Agreement shall be incorporated into such Note as if they were
original a part of such documents.
4. This
Agreement and all obligations hereunder, or with respect hereto,
shall continue in full force and effect so long as any of the Loan
Obligations remain outstanding.
5. Each
Lender shall (a) promptly notify the other Lenders of any
default under its Note, the Mortgage and Security Agreement or any
other agreements or documents executed in connection therewith, as
applicable (a “Default”)
known to such Lender and not reasonably believed to have been
previously disclosed to the other Lenders; (b) provide the
other Lenders with such information and documentation as such other
Lenders shall reasonably request in the performance of their
respective obligations hereunder, including but not limited to
information relative to the outstanding balance of principal,
interest and other sums owed to such Lender by the Company; and
(c) cooperate with the other Lenders with respect to any and
all collections and/or foreclosure procedures at any time commenced
against the Company or otherwise in respect of the Collateral
securing the Loan Obligations. In the event of a Default, the
Lenders may agree to appoint one Lender or Lender’s designee
to act on behalf of all of the Lenders
hereunder.
6. Any
and all payments under the Notes as between all Lenders shall be
paid equally and ratably. Furthermore, no Lender may accelerate the
obligations of the Company under its Note and commence and complete
the exercise of all of its other rights and remedies thereunder
(without the approval or joinder of all Lenders). No Lender has an
obligation to the other Lenders to take any steps with regard to
the enforcement or protection of other Lender’s rights to the
security for its Note. In the event of a Default by the Company
under any Loan Obligation, should any payment, distribution or
security or proceeds be received by a Lender upon or with respect
to such Lender’s loan prior to the satisfaction in full of
the Default, such Lender shall immediately deliver the same equally
and ratably to all Lenders in the form received (except for
endorsement or assignment by such Lender where required), for
ratable application on the loans (whether or not then due) and,
until so delivered, the same shall be held in trust on behalf of
all Lenders by such Lender as the property of all Lenders.
Notwithstanding anything herein to the contrary, the Company may
not prepay a Note at any time in whole or in part, unless
(a) no Default exists under the loans, (b) such payment
on the Note will be paid equally and ratably to all Lenders
hereunder, or (c) all Lenders otherwise agree in writing to
such prepayment.
7. With
respect to matters related to the enforcement of this Agreement,
this Agreement shall be governed by, and be construed in accordance
with, the laws of the state in which the Property is
located.
1
8. This
Agreement is solely for the benefit of and shall bind the parties
hereto and their respective successors and assigns, and no other
person or persons shall have any right, benefit, priority or
interest under or because of the existence of this
Agreement. In the event of the transfer or assignment of all
or any part of any of the security interests or claims described in
this Agreement, the priorities established in this Agreement shall
continue in full force and effect with respect to such assigned or
transferred interests or claims, and the assigning party agrees to
advise such assignee and transferee of such continuing priorities
and obtain such assignee’s or transferee’s agreement
thereto.
9. This
Agreement may be executed in counterparts, which when executed and
delivered shall be an original, but all such counterparts shall
together constitute one and the same
agreement.
10. This
Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective successors and assigns. The
provisions of this Agreement are, and are intended, solely for the
purpose of defining the relative rights of the Lenders by and
amongst themselves. Nothing contained herein is intended to or
shall impair, the obligation of the Company as among the
Lenders.
11. This
is a continuing agreement and will remain in full force and effect
until all but one of the loans have been fully paid, performed and
satisfied. This Agreement will continue to be effective or will be
reinstated, as the case may be, if at any time any payment of a
Note is rescinded or must otherwise be returned by a Lender upon
the insolvency, bankruptcy, or reorganization of the Company or
otherwise, all as though such payment had not been
made.
12. No
defect in, invalidity of, or absence or loss of priority in, or
under this Agreement or the Notes or the Mortgage and Security
Agreements shall affect the respective rights under this
Agreement.
13. Each
Lender agrees not to amend or modify its respective Note or
Mortgage and Security Agreement, without the prior written approval
of the other if any such amendment or modification could materially
adversely affect the other’s rights and priority to the
Property or this Agreement.
14. Within
ten (10) business days after a request therefor by any Lender
(the “Requesting
Party”), the party of
whom such request is made, including the Company (the
“Responding
Party”) shall furnish to
the Requesting Party, at the Requesting Party’s expense, a
written letter addressed to the Requesting Party and any other
party reasonably requested by the Requesting Party (including,
without limitation, any actual or prospective assignee of the
Requesting Party) which states the principal amount then
outstanding on the Responding Party’s loan(s) and the date to
which interest on such loan has been paid, the amount of any
escrows, reserves or other sums held by or on behalf of the
Responding Party (whether or not disbursed) and stating whether it
has given any notice of the existence of any default under the
Responding Party’s loan and that, to its knowledge, there is
no condition or event which constitutes a default or which, after
notice or lapse of time or both, would constitute a default or, if
any such condition or event exists, specifying in reasonable detail
the nature and period of existence thereof and what action the
Company is taking or (to the extent then known to the Responding
Party) proposes to take with respect thereto.
[Signature Page Follows]
2
IN
WITNESS WHEREOF, each of the Lenders has duly executed this
Intercreditor Agreement as of the day and year first written
above.
LENDERS:
GK
INVESTMENT HOLDINGS, LLC, a
Delaware
limited liability company
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By:
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/s/ Xxxx
Xxxxxxxxx
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Name:
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Xxxx
Xxxxxxxxx
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Title:
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President
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By:
GK
Development, Inc., its Manager
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By:
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/s/ Xxxx
Xxxxxxxxx
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Name:
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Xxxx
Xxxxxxxxx
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Title:
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President
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By:
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/s/ Xxxx
Xxxxxxxxx
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Name:
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Xxxx
Xxxxxxxxx
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Title:
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President
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ACKNOWLEDGED:
ACKNOWLEDGED:
GK PREFERRED INCOME
II
(RIDGMAR)
1551 XXXXXXXXX
PARTNERS SPE, LLC, a
SPE, LLC, a
Delaware limited liability
company
Delaware limited
liability company
By:
GK Development,
Inc., its
Manager
By:
GK Development,
Inc., its Manager
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By:
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/s/ Xxxx
Xxxxxxxxx
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Name:
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Xxxx
Xxxxxxxxx
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Title:
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President
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3
SCHEDULE 1
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Lender
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Loan Obligation
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GK
INVESTMENT HOLDINGS, LLC
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$3,700,000.00
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GK
INVESTMENT PROPERTY HOLDINGS II, LLC
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$3,500,000.00
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GK
SECURED INCOME V, LLC
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$750,000.00
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