CONTRIBUTION AGREEMENT
Exhibit 6(h)
THIS
CONTRIBUTION AGREEMENT is made this 25th day of June, 2021 (the
“Effective
Date”) by and between RF GROCERY, LLC an Illinois
limited liability company (“Assignor”)
to GK DST – RIVER FOREST GROCERY, a Delaware statutory trust
(“Assignee”).
WHEREAS, Assignor
is or will become the sole beneficiary of Assignee owning one
hundred percent (100%) of the beneficial interests in
Assignee:
WHEREAS, Assignor
owns those certain parcels or lots of real property identified in
Exhibit A attached hereto (the “Property”);
and
WHEREAS, Assignor
wishes to contribute the Property to Assignee as a contribution to
capital; and
WHEREAS, Assignor
and Assignee desire to execute this instrument to reflect the
contribution of the Property in return to receiving all of the
beneficial interests in the Assignee; and
WHEREAS, Assignor
desires the books and records of Assignee to reflect their
contribution of the Property as a contribution to the capital of
Assignee made by Assignor with respect to its ownership interest in
Assignee; and
NOW,
THEREFORE, WITNESSETH, for and in consideration of the foregoing
recitals and good and valuable consideration, the receipt and
sufficiency of which hereby are acknowledged, Assignor does hereby
agree to contribute, set over, assign, transfer, and convey to
Assignee the Property and agrees that it will convey the Property
to Assignee by Deed recorded in the Clerk’s Office for Xxxx
County, North Carolina and execute any further documentation as may
be required; and
Assignee
acknowledges that in consideration of such transfer Assignor has or
will be assigned all of the beneficial trust interest in
Assignee.
In
addition, the Parties agree to the additional terms and
conditions:
I. AGREEMENT AS TO
VALUE; CAPITAL CONTRIBUTION. The Assignor and Assignee hereby agree
that the value of the Property for purposes of the contribution
transaction contemplated hereby is $ 10,778,490 (the
“Agreed Property
Value”). At the closing of the transactions
contemplated hereby (the “Closing”)
Assignor shall be credited with a capital contribution to the
Assignee equal to the Agreed Property Value as adjusted by the
prorations and other provisions of Article VI hereof; plus the
value of any accounts, receivables, personalty or other assets
transferred by Assignor to Assignee in connection with the
contribution of the Property; and, less the amount of any
indebtedness secured by the Property and assumed by the Assignee
and any other payables or liabilities assumed by the Assignee. Such
amount is referred to hereinafter as the “Assignor Capital
Contribution.”
II.
REPRESENTATIONS AND
WARRANTIES.
In
order to induce Assignee to enter into this Agreement, Assignor,
knowing that Assignee is relying hereupon represents, warrants as
follows:
1. Assignor is the
sole owner and has fee simple to the Property and Assignor has the
power and authority to enter into this Agreement.
2. Assignor is duly
formed a validly existing as a limited liability company under
Illinois law.
3. The Property is not
subject to any option agreement or other sales contract or to any
other lease or other occupancy agreements other than that certain
lease dated November 14, 2014 (the “Lease”)
to be assigned at closing to Assignee and Assignor will not enter
into any agreement which will affect Assignor’s ability to
convey the Property to Assignee under this Agreement.
4. There are no
pending, or to the best of Assignor’s knowledge, threatened
legal proceedings (including condemnation) affecting the property
or affecting Assignor’s right to sell the Property and
Assignor will give Assignee immediate notice of any such action if
received by Assignor.
5. All necessary
public utilities including, but not limited to, water lines,
electrical lines, gas lines, telephone lines and sanitary and storm
sewers are available and adequate for Assignee’s intended use
of the Property and may be utilized without any additional cost to
Assignee.
6. The Property is
zoned as a matter of right for use as a grocery store and Assignor
has no written notice of any material violation of any local zoning
law, rule or ordinance.
7. If required by
applicable law to convey the property, Assignor will use its best
efforts to obtain all permits, licenses and other approvals
necessary for the conveyance of the property, at Assignor’s
cost and expense.
All
representations and warranties contained herein shall terminate at
closing and be merged into the Deed and other conveyance documents
described herein.
Assignee hereby
represents and warrants that it is a duly formed Delaware statutory
trust and has the power and authority to execute this Agreement and
perform its obligations hereunder.
III.
DUE
DILIGENCE.
Assignee hereby
agrees and acknowledges that it has full access to examine the
Property including the condition of title therefore and the
physical condition of the Property. Assignee acknowledges that it
is satisfied with the condition of said Property and has not relied
on any representations and warranties of Assignor in acquiring the
same. Assignor agrees to convey the Property to Assignee in an AS
IS, WHERE IS condition without any representations or warranties as
to its condition or its fitness for any particular use. In
addition, the property shall be conveyed to any existing matters of
title as recorded in the land records for Xxxx County,
Illinois.
IV.
CONDITIONS OF CLOSING. The obligation of Assignee under this
Agreement to acquire the
property from Assignor is subject to the satisfaction of each of
the following conditions (unless waived in writing by Assignee, on
or before the Closing Date):
1. Assignee shall have
determined to Assignee’s satisfaction that the property is
suitable for its intended use as a grocery store and is in
compliance with applicable law.
2. Assignee shall
determine there are no covenants, restrictions or other ordinances
which would restrict the use of the property for its intended
purposes.
3. Assignee shall be
satisfied with condition of any and all leases pertaining to the
property, any management agreements as may survive closing and any
other maintenance and service contracts as may exist with respect
to the Property.
4. Assignor shall have
complied with all the terms and conditions of this
Agreement.
In the
event Assignee is not satisfied with the fulfillment of those
conditions to Closing, Assignee shall be entitled to terminate this
Agreement by delivering written notice to Assignor at any time
prior to the Closing Date.
V. CLOSING. Closing
shall be held at a mutual time and place as agreed to by the
parties and in all events no later than July 15, 2021 (the
“Closing
Date”). At the closing, Assignor in addition to the
other documents required to be delivered under the terms of this
Agreement shall cause to be delivered the following to
Assignee:
1. A special warranty
deed to the Property to be prepared at Assignor’s expense
duly executed and acknowledged by Assignor in proper form for
recording, conveying good, marketable, insurable fee simple title
to the Property subject to all title matters of
record.
2. Such affidavits or
indemnity agreements as the title company shall reasonably require
in order to issue, without additional charges, a policy of title
insurance insuring the Property free of any exceptions for unfiled
mechanic’s liens, materialmen’s liens or other liens as
would apply to the Property.
3. A valid xxxx of
sale conveying unto Assignee all the personal property located at
or used in connect with the Property including, without limitation,
all mechanical systems, furniture, fixtures and equipment owned by
Assignor or used in connection with the Property.
4. An assignment of
leases whereby Assignor shall assign to Assignor the Lease, and any
subleases and other rental agreements (collectively,
“Occupancy
Agreements”) existing with respect to the Property.
Assignee will agree to perform all obligations under the Lease and
any Occupancy Agreements from and after the Closing
Date.
5. Assignor shall
assign to Assignee its interest in any service, operating or
maintenance agreements, management agreements and contracts
applicable to the Property. Assignee agrees to assume performance
under said agreements from and after the Closing Date.
6. To the extent
assignable, Assignor shall assign unto Assignee all transferrable
warranties, guarantees, and bonds held by Assignor pertaining to
the building and improvements and all governmental licenses,
permits and approvals.
7. Assignor shall
assign unto Assignee all of its right, title and interest in all
other trademarks, trade names and intellectual property related to
the property including any websites or social media
accounts.
8. Assignor shall
assign all other rights, privileges and appurtenances owned by
Assignor and used by Assignor in connection with the Property and
all other general intangible rights applicable
thereto.
Assignor shall
indemnify and hold harmless Assignee from and against the use of
the Property from and prior to the Closing Date included under any
of the rights transferred above. Assignee shall indemnify and hold
Assignor harmless from and against any loss or damage to the
Property arising from and after the Closing Date and arising under
any of the rights transferred hereunder.
At the
closing, Assignee and Assignor shall mutually execute a trust
agreement (or amendment thereto) of Assignee reflecting Assignor
being credited the Assignor Capital Contribution as of the Closing
Date.
VI.
TAXES, RENTS AND
OTHER PRORATIONS. The following prorations and
adjustments
shall be made at Closing as of the Closing Date:
1. Real estate taxes
and other governmental charges and assessments assessed against the
property shall be prorated based upon the current year’s
taxes. If, as of the Closing Date, the taxes for the property for
the current year have not yet been determined, Assignor and
Assignee agree to prorate real estate taxes on the basis of the
best available information as of the Closing Date. Assignor and
Assignee reserve the right to make any adjustments or re-prorations
if more accurate tax information becomes known within one (1) year
after the Closing Date.
2. All rent owing with
respect to the Property shall be prorated as of the Closing Date,
provided any delinquent rents shall not be prorated and when
received after closing shall be reimbursed to Assignor when and if
collected. At Closing or thereafter, Assignor shall deliver to
Assignee a current rent roll reflecting the current status of the
Lease and Occupancy Agreements (if any) existing with respect to
the Property.
3. Assignor and
Assignee shall coordinate for the transfer of all utilities with
respect to the Property such that Assignor shall be responsible for
all fees and charges from such utilities for the date arising prior
to the Closing Date and Assignee shall be liable for the payment of
all such utilities from the date arising after the Closing Date.
The parties agree to reasonably cooperate in connection with the
transfer of the utilities in the manner set forth
above.
4. All other recording
taxes and other charges applicable to the transaction set forth in
this Agreement shall be allocated in accordance with local law and
custom. Each side shall pay its own legal expenses arising from and
related to this transaction.
5. Upon mutual
agreement of the parties any tax, rent and utility prorations may
occur outside of the settlement statement for this transaction, but
in any event within 30 days of Closing.
VII.
DEFAULT. In the event either party shall default under this
Agreement, the non-defaulting party
shall be entitled to all rights and remedies as may be available at
law or in equity. In the event of either party’s default the
non-defaulting party shall be entitled, to recover its reasonable
legal fees incurred in enforcing such party’s rights under
this Agreement.
VIII.
MISCELLANEOUS.
1. All notices hereon
shall be in writing and shall be deemed to have been properly given
when sent by registered or certified mail, return receipt
requested, postage prepaid addressed to the respective parties
herein as follows:
ASSIGNOR:
RF Grocery,
LLC
c/o GK
Development, Inc., d/b/a
GK Real
Estate
000
Xxxx Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX
00000
Attn:
Xxxx Xxxxxxxxx
ASSIGNEE:
RF Grocery,
LLC
c/o GK
Development, Inc., d/b/a
GK Real
Estate
000
Xxxx Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX
00000
Attn:
Xxxx Xxxxxxxxx
2. Neither Assignor
nor Assignee shall assign its rights under this Agreement without
the agreement of the other party.
3. All the
representations and warranties contained in this Agreement shall be
merged into the deed and other conveyance documents delivered at
closing and shall not survive the Closing Date. All covenants,
representations and warranties shall be true and accurate as of the
Closing Date, notwithstanding the fact that said covenants,
representations and warranties may refer to a state of facts as a
date prior to the Closing Date.
4. Assignor and
Assignee agree that there are no real estate commissions due with
regard to this Agreement.
5. This Agreement sets
forth the entire agreement between the parties with respect to the
transaction contemplated hereby and supersedes all prior
negotiations, agreements and understandings. Any changes to this
Agreement shall be made only in writing executed by the party or
parties thought to be charged thereby.
6. This Agreement
shall be binding upon and inure to the benefit of the parties
hereto and their respective heirs, executors, administrators,
successors and assigns.
7. This Agreement
shall be governed by, construed and enforced under the laws of the
State of Illinois.
(Signatures
Follow)
IN
WITNESS WHEREOF, the Assignor and Assignee execute their signature
to this Agreement as set forth below.
ASSIGNOR:
RF
GROCERY, LLC, an
Illinois limited
liability company
By:
GK Development,
Inc., an
Illinois
corporation, d/b/a GK Real Estate
Its:
Manager
By:
_______________________
Name:
_______________________
Title:
_______________________
ASSIGNEE:
GK DST
– RIVER FOREST GROCERY, a
Delaware statutory
trust
By:
River Forest
Grocery – GK Services LLC, a
Delaware limited
liability company
Its:
Signatory
Trustee
By:
_______________________
Name:
_______________________
Title: _______________________
EXHIBIT A
[Legal Description]
