AMENDED AND RESTATED NOTE
Exhibit 6J
AMENDED AND RESTATED NOTE
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$5,190,000.00
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July 21,
2021
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1. Agreement
to Pay. FOR VALUE
RECEIVED, the undersigned, GK DST
– RIVER FOREST GROCERY, a Delaware statutory trust
(herein called "Borrower"), promises to pay to the order of
BARRINGTON BANK & TRUST
COMPANY, N.A. (herein, together with each successive owner
and holder of this Note as amended and/or amended and restated from
time to time (this “Note”), called "Lender") in the
manner provided for herein and in the Mortgage hereinafter referred
to, the principal sum of Five Million One Hundred Ninety Thousand
Dollars and No Cents ($5,190,000.00), or so much as may from time
to time be disbursed and remain unpaid hereunder, together with
interest in arrears on the balance of principal remaining from time
to time unpaid at the rates provided for in Sections 4 and 5 hereof
from and after the date of disbursement ("Disbursement Date") that
all or any portion of the proceeds of the loan evidenced hereby
shall have been initially disbursed. This Note is an amendment and
restatement of that certain Note dated as of July 17, 2020,
executed and delivered by RF Grocery, LLC, an Illinois limited
liability company, in favor of Lender in the principal amount of
$5,190,000.00 (the “Original Note”). This Note shall
not cause a novation, payment and reborrowing, or termination of
any of the indebtedness or obligations of Borrower under the
Original Note, nor shall it extinguish, discharge, terminate or
impair Borrower’s obligations or Lender’s rights or
remedies under the Original Note; provided, however, that all such
indebtedness, obligations, rights and remedies shall be on the
terms and conditions of, and as set forth in, this
Note.
2. Nature of
Loan. The loan
evidenced hereby is a loan of up to Five Million One Hundred Ninety
Thousand Dollars and No Cents ($5,190,000.00) to be disbursed in
accordance with the funds required by Borrower for the Premises
(hereinafter defined).
3. Definitions.
For the purposes hereof, the following terms shall have the
meanings set forth below:
A. “Annual Debt
Service” shall mean the annual actual principal and interest
debt payments of Borrower for the period being
measured.
B. “Debt
Service Coverage Ratio” shall mean Net Operating Income
divided by Annual Debt Service.
C. "Default
Rate" shall mean interest payable at the rate set forth in Section
5 hereof.
D. "Delaware
Statutory Trust" or "DST" is a trust formed under the Delaware
Statutory Trust Act.
E. "Delaware
Statutory Trust Act" or "Act" means Chapter 38 of Title 12 of the
Delaware Code (the “Code”), 12 Del. Code § 3801 et
seq., or any successor statute thereto, in each case as amended
from time to time.
F. "Delaware
Statutory Trust Requirements" shall mean a Delaware Statutory
Trust: (a) that is subject to a trust agreement that may not be
terminated so long as the Loan remains outstanding, except upon the
terms as contained in this Note; (b) whose beneficial owners (and
their respective creditor(s)) have no direct interest in the
Premises, except as determined for purposes of Section 1031 of the
Code; and (c) that is qualified to do business in the state in
which the Premises is located, provided, however, that if Delaware
Statutory Trusts cannot be qualified to do business in such state,
then the Signatory Trustee for such Delaware Statutory Trust shall
be qualified to do business in such state.
G. "Delaware
Trustee" shall mean Xxxxxxxx Entity Services LLC, a Delaware
limited liability company.
H. "DST
Expenses" means collectively, (i) any and all fees and other
compensation payable by the Borrower to Signatory Trustee and/or
Delaware Trustee pursuant to the terms of Borrower's organizational
documents, and (ii) all other costs and expenses incurred by
Borrower in maintaining its corporate status as a Delaware
statutory trust (as the same may be converted in accordance with
the terms hereof).
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I. "Loan" shall mean
the aggregate indebtedness evidenced by this Note.
J. "Material
Owner Transfer" means a Transfer wherein a transferee that did not
(together with its Affiliates) own a twenty percent (20%) or more
direct or indirect interest in Borrower on the Closing Date will
own twenty percent (20%) or more of the direct or indirect interest
interests in Borrower immediately following such Transfer,
excluding, however, Transfers of any beneficial DST interests in
Borrower to investors through a Financial Industry Regulatory
Authority (FINRA) and/or SEC registered broker
dealer.
K. "Maturity Date"
shall mean and refer to the date on which the unpaid principal
balance hereunder is due, whether by acceleration or otherwise.
Subject to acceleration as herein provided, the Maturity Date shall
be July 10, 2028.
L. “Net
Operating Income” shall mean Borrower’s annual revenue
and operating expenses calculated on a trailing twelve month basis
(for the period being measured) with operating expenses including a
Five Percent (5.0%) management expense and a replacement reserve
calculated at Thirty Cents ($0.30) per square foot of the Premises
(defined below) all as reasonably determined by
Lender.
M. "Obligations" shall
mean all liabilities, indebtedness and obligations of Borrower to
Lender, howsoever created, arising or evidenced, and howsoever
owned, held or acquired, whether now or hereafter existing, now due
or to become due, direct or indirect, absolute or contingent,
primary or secondary or joint or several, including without
limitation all principal, accrued interest (including without
limitation interest, fees and expenses accruing after the filing of
any petition in bankruptcy), present and future advances made by or
on behalf of Lender, under the Loan Documents to or for the benefit
of Borrower, obligations of performance, charges, expenses,
attorneys' fees and other sums chargeable to Borrower by Lender,
collection and other costs and expenses incurred by or on behalf of
Lender, whether incurred before or after judgment, and all other
present and future liabilities, indebtedness and obligations of
Borrower under the Loan Documents.
N. "Premises" shall
mean the real estate commonly known as 0000 Xxxx Xxxxx Xxxxxx,
which is located in River Forest, Xxxx County, State of Illinois,
and legally described on Exhibit A to the Mortgage (hereinafter
defined), together with all site improvements and structures
constructed thereupon, all as more fully described in the Mortgage,
and personal property situated thereupon.
O. "Qualified
Delaware Statutory Trust" means a Delaware Statutory Trust meeting
the Delaware Statutory Trust Requirements.
P. "Qualified
Replacement Delaware Trustee" means a trust company or such other
institution satisfying applicable laws of the State of Delaware and
which is a nationally-recognized company that provides, inter alia,
professional independent, directors or independent managers in the
ordinary course of its business to issuers of securitization or
structured finance instruments, agreements or securities or lenders
originating commercial real estate loans for inclusion in
securitization or structured finance instruments, agreements or
securities, or which is otherwise satisfactory to Lender in its
reasonable discretion.
Q. "Qualified
Replacement Signatory Trustee" means any person who complies with
all relevant State of Delaware trust laws, that is satisfactory to
Lender in Lender’s sole reasonable
discretion.
R. "Regular Rate"
shall mean interest payable at the rate equal to LIBOR plus Two
Hundred Twenty (220) Basis Points (see Rider attached hereto and
incorporated herein by reference).
S. "Signatory
Trustee"
means River
Forest Grocery – GK Services LLC, a Delaware limited
liability company, or the person serving, at the time of
determination, as the signatory trustee, administrative manager or
administrative trustee (as applicable) under Borrower's Trust
Agreement.
T. "Trust
Agreement" means the Trust Agreement of Borrower, as the same has
been delivered to Lender in connection with the closing of the
Loan, and as the same may be hereafter amended, restated, replaced,
supplemented or otherwise modified from time to time in accordance
herewith.
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4. Interest Rate Prior
to Default. Borrower
shall pay interest to Lender on the principal balance hereof
outstanding from time to time prior to default at the Regular Rate.
The per diem calculation of interest shall be on the basis of a
three hundred sixty (360) day year, and the per diem sum so
ascertained shall be multiplied by the number of days in each
respective billing period to determine the amount of interest from
time to time due and owing. Borrower has entered into an Interest
Rate Swap Transaction, (the “Swap Transaction”) through and
including the Maturity Date, with Lender as described in that
certain Confirmation (the “Confirmation”). The Confirmation
evidences the Swap Transaction and incorporates the definitions and
provisions contained in the 2000 ISDA Definitions as published by
the International Swaps and Derivatives Association, Inc. (the
“Definitions”),
and the Confirmation is subject to and incorporates the terms and
conditions of the ISDA Master Agreement and Schedule executed
previously (the “Swap
Agreement”). Notwithstanding the foregoing, in the
event of any inconsistency between the provisions of the Swap
Agreement and the Confirmation, the Confirmation shall control with
respect to the Swap Transaction. For purposes of this Note, the
term Swap Transaction shall be deemed to include the Confirmation,
the Definitions and the Swap Agreement. Borrower shall have the
right to terminate the Swap Transaction with the Lender upon ten
(10) days’ prior written notice to Lender. Termination of the
Swap Transaction shall not be deemed termination of the Loan. In
the event that Borrower terminates the Swap Transaction, Borrower
shall be entitled to any amount due to it as of the date of
termination pursuant to the terms of the Swap Transaction or be
responsible for any amount due to Lender, pursuant to the Swap
Transaction including any Break Funding Payment (as hereinafter
defined).
5. Default
Rate. In the event that there shall occur and continue after
the expiration of applicable cure periods (each an “Event of
Default”):
A. Any monetary
default hereunder that shall continue after such payment is due
hereunder after all applicable grace periods have either expired or
lapsed; or
B. Any Default or
Event of Default under the Mortgage; or
C. Maturity of the
indebtedness evidenced hereby, whether by passage of time,
acceleration, declaration or otherwise; or
D. Borrower fails to
perform and comply, in a timely manner, with all terms, conditions
and provisions set forth in this Note, in the Loan Documents, and
in all other instruments and agreements between Borrower and
Lender. Borrower shall notify Lender immediately in writing of any
Default in connection with any agreement; or
E. Borrower fails to
(i) maintain executive and management personnel with substantially
the same qualifications and experience as the present executive and
management personnel, or (ii) intentionally deleted, or (iii)
conduct Borrower's business affairs in a reasonable and prudent
manner; or
F. Upon request by
Lender, Borrower fails to provide Lender at least annually (within
thirty (30) days after Lender’s written request for same)
with a certificate executed by Borrower's chief financial officer,
or other officer or person acceptable to Lender in Lender's sole
discretion, certifying that the representations and warranties set
forth in this Note are true and correct as of the date of the
certificate and further certifying that, as of the date of the
certificate, no default or Event of Default exists under this Note
or under any of the other Loan Documents; or
G. Borrower fails to
(i) comply in all respects with any and all Environmental Laws, or
(ii) cause or permit to exist, as a result of an intentional or
unintentional action or omission on Borrower's part or on the part
of any third party, on property owned and/or occupied by Borrower,
any environmental activity where damage may result to the
environment, unless such environmental activity is pursuant to and
in compliance with the conditions of a permit issued by the
appropriate federal, state or local governmental authorities, or
(iii) furnish to Lender promptly and in any event within thirty
(30) days after receipt thereof a copy of any notice, summons, lien
citation, directive, letter or other communication from any
governmental agency or instrumentality concerning any intentional
or unintentional action or omission on Borrower's part in
connection with any environmental activity whether or not there is
damage to the environment and/or other natural resources;
or
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H. The dissolution or
termination of Borrower's existence as a going business, the
insolvency of Borrower, the appointment of a receiver for any part
of Borrower's property that is not vacated within sixty (60) days,
any assignment for the benefit of creditors that is not vacated
within sixty (60) days, any type of creditor workout, or the
commencement of any proceeding under any bankruptcy or insolvency
laws or by or against Borrower that is not vacated within sixty
(60) days; or
I. This Note or any of
the other Loan Documents ceases to be in full force and effect
(including failure of any collateral documents to create a valid
and perfected security interest or lien) at any time and for any
reason by through our under any action or inaction of Borrower;
or
J. A material adverse
change occurs in Borrower's financial condition, or Lender in its
reasonable discretion believes the prospect of payment or
performance of the Loan is impaired; or
K. If Borrower grants
a security interest in the Premises to anyone other than Lender at
any time during the term of the Loan; or
L. Intentionally
deleted; or
M. If Borrower fails
to provide to Lender, no later than thirty (30) days after filing
each calendar year during the term of the Loan, the filed business
tax return of Borrower; or
N. If
Borrower fails to provide to Lender, no later than ninety (90) days
after the end of each calendar year during the term of the Loan,
the operating statement of Borrower; or
O. If
Borrower fails to provide to Lender, no later than ninety (90) days
after the end of each calendar year during the term of the Loan,
the annual rent roll of Borrower; or
P. If
Borrower fails to provide to Lender, no later than ninety (90) days
after the end of each calendar year during the term of the Loan,
all leases for the Premises; or
Q. If Borrower fails
to maintain a minimum Debt Service Coverage Ratio of 1.25:1.00
during the entire term of the loan as measured by Lender on an
annual basis during the term of the loan initially tested on
December 31, 2020 and determined by Lender in Lender’s sole
discretion. Borrower shall provide Lender with all information
required to perform the Debt Service Coverage Ratio calculations
within ninety (90) days after the end of each calendar year during
the term of the loan beginning with December 31, 2020 (and the
December 31, 2020 test shall be calculated on an annualized basis
based upon the information provided for Borrower’s period of
ownership of the Premises in 2020) including but not limited to
Borrower’s filed business tax returns and Borrower’s
financial statements; or
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R. If
there is any transfer in ownership in Borrower or change in control
in Borrower at any time during the term of the Loan without
Lender’s prior written consent, which consent shall not be
unreasonably withheld, conditioned or delayed; or
S. Intentionally
deleted; or
T. If
at any time during the term of the Loan, Borrower fails to obtain
Lender’s approval (which approval shall not be unreasonably
withheld, conditioned or delayed) to Borrower’s Lease Default
Mitigation Plan (as defined herein) within sixty (60) days after
the occurrence of a material default by the tenant under any lease
for the Premises beyond all applicable cure periods
thereunder. Upon the expiration of such sixty (60) day period
and provided that Lender has not been provided with a Lease Default
Mitigation Plan to approve or Lender will not approve a Lease
Default Mitigation Plan that was provided for its approval as
indicated herein, an Event of Default may be declared by
Lender. For purposes of this Section 5.T. the term
“Lease Default Mitigation
Plan” means a written plan prepared by Borrower (after
consultation with tenant) and addressed to Lender to mitigate any
adverse economic impact associated with any material default by
tenant under the lease for the Premises beyond all applicable cure
periods thereunder; or
U. If Guarantor shall
be dissolved and a replacement guarantor acceptable to Lender in
Lender’s sole discretion is not found within sixty (60) days
of said dissolution; or
V. If Borrower fails
to maintain all of Borrower’s bank accounts with Lender as it
pertains to the Premises during the entire term of the
Loan,
then
and in any such event, the entire principal balance hereof and all
indebtedness secured by the Mortgage shall thereafter bear interest
at a rate equal to Five Percent (5%) per annum in excess of the
Regular Rate for each day all or any part of the principal balance
hereof shall remain outstanding or until the default referred to
above shall be cured, whichever shall first occur. As a condition
to curing any such default, however, Borrower shall pay all amounts
in default together with interest charged at the Default
Rate
6. Late
Charge. Without
limiting the provisions of Section 5
hereof, in the event any installment of interest and/or principal
and interest is not paid within ten (10) days of the due date
thereof the undersigned promises to pay a late charge of Five
Percent (5%) of the amount due to defray the expense incident to
handling any such delayed payment or payments.
7. Payments.
Borrower shall pay Lender a loan fee in the amount of Five Thousand
Five Hundred Dollars and No Cents ($5,500.00) on or before the date
of this Note. Borrower shall make monthly payments of principal,
plus interest on the tenth (10th) day of each month
through and including the Maturity Date, with the first such
payment due on August 10, 2021, via auto debit from an account
established at Lender. Borrower shall pay all accrued interest, the
unpaid principal balance of this Note and any other sums due with
respect to the Loan on the Maturity Date.
THIS IS
A BALLOON NOTE. THE PAYMENT OF PRINCIPAL IS CALCULATED ON THE BASIS
OF A THIRTY (30) YEAR AMORTIZATION SCHEDULE, WITH THE UNPAID
BALANCE DUE ON THE MATURITY DATE, AT WHICH TIME A SUBSTANTIAL
AMOUNT OF PRINCIPAL SHALL REMAIN OUTSTANDING AND BE
DUE.
So long
as the Swap Transaction remains in effect, the monthly Payments
required hereunder on each payment date shall be debited as of the
payment date from the account established by Borrower with Lender
for the purpose of the payment of principal plus interest on the
Loan plus any net settlement due pursuant to the Swap
Transaction.
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8. Prepayment
Privilege. Borrower
may prepay on any date the unpaid principal balance of this Note,
in whole or in part, provided that (i) Borrower gives Lender not
less than thirty (30) days prior written notice of its intention to
do so; and (ii) Borrower pays, at the time of such prepayment and
in addition thereto, all accrued interest to the date of such
prepayment and all other unpaid indebtedness then due including the
Break Funding Payment described below. Notwithstanding anything to
the contrary contained in this Note, in the event of any default,
Default or Event of Default (as hereinafter defined) hereunder or
any “default”, “Default” or “Event of
Default” under any of the other Loan Documents and following
the acceleration of all sums due hereunder, a tender of payment by
Borrower or any other party, or payment received upon or on account
of a foreclosure pursuant to the Mortgage shall be deemed a
voluntary prepayment made by Borrower and therefore such prepayment
must, to the extent permitted by applicable law, include any
prepayment charge described above and any other amounts due
pursuant to this Note including the Break Funding Payment. Any
partial prepayment made hereunder shall not postpone the due date
of any subsequent monthly payment of principal and interest
required hereunder and shall not change the amount of any such
monthly payment unless the Lender shall otherwise agree in writing.
Borrower acknowledges and agrees that any prepayment charge and
Break Funding Payment set forth herein is a reasonable estimate of
Lender’s loss in the event of any prepayment in whole or in
part and that any such prepayment charge is not a penalty. Further,
Borrower recognizes, acknowledges and agrees that any prepayment
made hereunder, whether: (i) voluntary, (ii) resulting from the
payment to Lender of any insurance or condemnation proceeds, or
(iii) resulting from the occurrence of any default or Event of
Default and an acceleration of this Note, may result in material
loss or damage to Lender through additional administrative expense
and violations of the Swap Agreement, the Confirmation, or the Swap
Transaction and Borrower recognizes, acknowledges and agrees that
Lender’s damages in such event may be extremely difficult and
impracticable to ascertain. Therefore, Borrower acknowledges and
agrees that the amount set forth in this section is a reasonable
estimate of said loss or damage to Lender. Borrower waives the
provisions of any present or future statute or law which prohibits
or may prohibit the collection of any Break Funding Payment. In the
event of the prepayment of any principal of the Loan pursuant to
this Note, the Swap Transaction shall terminate. In the event the
Swap Transaction is terminated, whether as a result of a prepayment
or without prepayment, Borrower shall compensate Lender for all
loss, cost and expense attributable to such termination pursuant to
the terms and conditions as set forth in the Confirmation and/or
the Swap Agreement (“Break
Funding Payment”) or Borrower may be entitled to the
receipt of excess amounts, if any, due under the Swap
Transaction.
9. Application of
Payments. All
payments on account of the indebtedness evidenced by this Note
shall be applied as follows:
A. First to
indebtedness secured by the Mortgage, Guaranty, Security Agreement
and the Assignment, as hereinafter defined, other than the
principal hereof and interest hereon charged at the Regular Rate,
and specifically including but without limitation, late charges and
interest, if any, charged at the difference between the Regular
Rate and the Default Rate;
B. Current interest on
the unpaid principal balance hereof at the applicable Regular Rate;
and then
C. The unpaid balance
of the Loan.
10. Method and Place of
Payment. Payments
upon this Note shall be made in lawful money of the United States
of America which shall be legal tender for public and private debts
at the time of payment, and shall be made at such place as Lender
may from time to time in writing appoint, provided that in the
absence of such appointment all payments hereon shall be made at
the offices of Lender, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxxx, XX
00000.
11. Loan
Documents. This Note
is a full recourse obligation of Borrower, is given to evidence an
actual loan in the above amount, and is the Note referred to in and
secured by the following and such other instruments evidencing,
securing, or pertaining to the Loan as shall, from time to time, be
executed and delivered by Borrower or any other party to Lender (as
amended and/or amended and restated from time to time collectively,
the "Loan Documents"):
A. A Guaranty of
Non-Recourse Carveouts (as amended and/or amended and restated from
time to time herein called the "Guaranty") of GK Development, Inc.,
an Illinois corporation, d/b/a GK Real Estate
(“Guarantor”) dated July 17, 2020;
B. A Mortgage (as
amended and/or amended and restated from time to time herein called
the “Mortgage”) dated July 17, 2020 made by Borrower,
as mortgagor, to Lender, as mortgagee, bearing even date herewith,
encumbering the Premises;
C. An Assignment of
Rents and Leases (as amended and/or amended and restated from time
to time herein called the "Assignment") dated July 17, 2020, made
by Borrower, as assignor, assigning to Lender all of the leases,
occupancy agreements, rents, issues and profits of and from the
Premises;
D. The
Environmental Indemnity Agreement dated July 17, 2020, made by
Borrower and Guarantor in favor of Lender;
E. All
documents evidencing or securing the Swap Transaction;
and
F. An Amended and
Restated Security Agreement (as amended and/or amended and restated
from time to time herein called the "Security Agreement") bearing
even date herewith, made by Borrower, as debtor, in favor of
Lender, as secured party.
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Reference
is hereby made to the Loan Documents, which are incorporated herein
by this reference as fully and with the same effect as if set forth
herein at length, for a description of the Premises, a statement of
the covenants and agreements of the Borrower and Guarantor, a
statement of the rights, remedies and security afforded thereby,
and all other matters therein contained.
12. Default and
Acceleration. At the
election of Lender and without notice, the principal sum remaining
unpaid hereon, together with accrued interest thereon, shall be and
become at once due and payable at the place herein provided for
payment upon the occurrence of a default hereunder, any Event of
Default under the Mortgage, or a default under any of the other
Loan Documents.
13. Usury.
Borrower represents that the loan evidenced by this Note is exempt
from any limitations on the rate of interest that may be charged
hereunder. In no event shall any interest or payment in the nature
of interest be charged or collected by Lender or paid by Borrower
which shall exceed the maximum contract interest rate now allowed
for a loan of this type by the laws of the State of Illinois (the
"Maximum Interest Rate"). It is the intention of Lender and
Borrower not to contract for a greater rate of interest than the
Maximum Interest Rate. Interest, or any payment determined to be in
the nature of interest, charged or collected by Lender or paid by
Borrower exceeding the Maximum Interest Rate shall be deemed to
result from mutual mistake, and any sums so charged, collected, or
paid shall be refunded to Borrower.
14. Costs of
Enforcement. In the
event that this Note is placed in the hands of an attorney-at-law
for collection after maturity, or in the event that proceedings at
law, in equity, or bankruptcy, receivership or other legal
proceedings are instituted or threatened in connection herewith, or
if Lender or its participant, if any, is made a party to any such
proceeding, or in the event that this Note is placed in the hands
of an attorney-at-law following a default hereunder or under the
Mortgage to enforce or interpret any of the rights or requirements
contained herein or in the Mortgage, Assignment, or Security
Agreement or other instruments given as security for, or related
to, the indebtedness evidenced hereby, the Borrower hereby agrees
to pay all reasonable costs of collecting or attempting to collect
this Note, or protecting, interpreting or enforcing such rights,
including, without limitation, reasonable attorneys' fees, costs
and expenses (whether or not suit is brought), in addition to all
principal, interest and other amounts payable hereunder; all of
which shall be secured by the Mortgage, Assignment and Security
Agreement.
15. Notices. All
notices required or permitted to be given hereunder shall be given
in the manner and to the place as provided in the Mortgage and
Security Agreement for notices to the party to whom such notice is
given.
16. Time.
Time is of the essence of this Note and each of the provisions
hereof.
17. Captions.
The captions to the sections of this Note are for convenience only
and shall not be deemed part of the text of the respective sections
and shall not vary, by implication or otherwise, any of the
provisions of this Note.
18. Disbursement to
Escrow. Funds
representing the proceeds of the indebtedness evidenced hereby
which are disbursed by Lender by mail, wire transfer or other
delivery to the Borrower or at Borrower's direction, to escrows or
otherwise for the benefit of the Borrower, for all purposes, shall
be deemed outstanding hereunder and to have been received by
Borrower as of the date of such mailing, wire transfer or other
delivery, and interest shall accrue and be payable upon such funds
from and after the date of such wire transfer, mailing or delivery
and until repaid, notwithstanding the fact that such funds may not
at any time have been remitted by such escrows to Borrower or for
its benefit.
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19. Governing
Law. This Note shall
be governed by the laws of the State of Illinois.
20. Waivers.
Borrower hereby:
A. Waives demand,
presentment for payment, notice of nonpayment and
protest;
B. Waives notice of
and consents to any and all extensions of this Note, or any part
thereof, the release of all or any part of the security for this
Note, or the release of any party liable hereon, and agrees that
such extension or release may be made at any time and from time to
time without notice to the Borrower and without discharging its
liability, if any, and without affecting any lien or security given
for this Note;
C. Waives any and all
notice of whatsoever kind or nature, except where notice is
specifically required by applicable law, hereunder or under the
Mortgage, or under any other document which evidences, secures or
governs the disbursement of the loan evidenced hereby and the
exhaustion of legal remedies hereon; and
D. Waives any and all
rights to a trial by jury.
21. Representations and
Warranties. Borrower
represents and warrants to Lender, as of the date of this Note, as
of the date of each disbursement of Loan proceeds, as of the date
of any renewal, extension or modification of the Loan, and at all
times any indebtedness exists:
A. Borrower has been, is and shall be a Qualified
Delaware Statutory Trust. Furthermore, Borrower is a statutory
trust, duly formed and validly existing under the laws of the State
of Delaware and has full power to consummate the transactions
contemplated herein and in the other Loan Documents. Borrower's
correct legal name is as stated in this Note, and where necessary
to maintain Borrower's rights and privileges, Borrower has complied
with the fictitious name-statute
of every jurisdiction in which Borrower is doing business. Borrower
will notify Lender not less than thirty (30) days, prior to
effectuating any change in the location of the state of its
organization or of any change in Borrower's name. Borrower
is duly authorized to transact business in all other states in
which Borrower is doing business, having obtained all necessary
filings, governmental licenses and approvals for each state in
which Borrower is doing business. Borrower has the full power and
authority to own its properties and to transact the business in
which it is presently engaged or presently proposes to engage.
Borrower maintains an office at 000 X. Xxxx Xxxxxx, Xxxxx 000,
Xxxxxxxxxx, XX 00000. Unless Borrower has designated otherwise in
writing, the principal office is the office at which Borrower keeps
its books and records including its records concerning all
collateral securing the Loan. Borrower will notify Lender prior to
any change in the location of Borrower's state of organization or
incorporation or any change in Borrower's name. Borrower shall do
all things necessary to preserve and to keep in full force and
effect its existence, rights and privileges, and shall comply with
all regulations, rules, ordinances, statutes, orders and decrees of
any governmental or quasi-governmental authority or court
applicable to Borrower and Borrower's business activities.
Signatory Trustee has been duly
organized and is validly existing and in good standing with
requisite power and authority to serve as trustee of Borrower, and
to transact the business in which it is now engaged, and possesses
all rights, licenses, permits and authorizations, governmental or
otherwise, necessary to entitle it to transact the business in
which it is now engaged.
B. Borrower has filed
or recorded all documents or filings required by law relating to
all assumed business names used by Borrower. Excluding the name of
Borrower, the following is a complete list of all assumed business
names under which Borrower does business: None.
8
22. Forbearance.
Any forbearance by Lender in exercising any right or remedy under
this Note, the Mortgage, or any of the other Loan Documents or
otherwise afforded by applicable law, shall not be a waiver of or
preclude the exercise of that or any other right or remedy. The
acceptance by Lender of any payment after the due date of such
payment, or in an amount which is less than the required payment,
shall not be a waiver of Lender's right to require prompt payment
when due of all other payments or to exercise any right or remedy
with respect to any failure to make prompt payment. Enforcement by
Lender of any of its rights or remedies under any of the Loan
Documents with respect to Borrower's obligations under this Note
shall not constitute an election by Lender of remedies so as to
preclude the exercise of any other right or remedy available to
Lender.
23. DST
Covenant.
So long as the Loan remains
outstanding, Borrower’s Trust Agreement shall provide that
until such time as the Loan and the other obligations under the
Loan Documents are indefeasibly paid and performed in full, all
rights of beneficial holders of DST interests in Borrower shall be
subordinate to the Loan and the Loan Documents.
24. Right of
Setoff. Upon a
default or Event of Default under this Note and any of the other
Loan Documents, to the extent permitted by applicable law, Lender
reserves a right of setoff in all Borrower's accounts with Lender
(whether checking, savings, merchant card or some other account).
This includes all accounts Borrower holds individually, jointly and
with someone else and all accounts Borrower may open in the future.
However, this does not include any XXX or Xxxxx accounts, or any
trust accounts for which setoff would be prohibited by law.
Borrower authorizes Lender, to the extent permitted by applicable
law, to charge or setoff all sums owing on the indebtedness against
any and all such accounts, and at Lender's option, to
administratively freeze all accounts to allow Lender to protect
Lender's charge and setoff rights provided in this
section.
25. Patriot
Act. Lender hereby
notifies Borrower that, pursuant to the requirements of the USA
Patriot Act (Title III of Pub. L. 107-56) (the "Patriot Act"),
Lender is required to obtain, verify and record information that
identifies Borrower and the other credit parties. Borrower agrees
to provide to Lender promptly upon Lender's request, such
information as Lender shall require for purposes of complying with
the requirements of the Patriot Act, the federal regulations issued
pursuant to the Patriot Act and any customer identification program
established by Lender in accordance therewith.
26. Indemnity.
Borrower shall indemnify and hold Lender harmless from and against
all claims, costs, expenses, actions, suits, proceedings, losses,
damages and liabilities of any kind whatsoever, including but not
limited to reasonable attorneys' fees and expenses, arising out of
any matter relating, directly or indirectly, to the Loan, to the
ownership, development, construction, or sale of any property
securing the Loan, whether resulting from internal disputes of
Borrower, disputes between Borrower and any guarantor, or whether
involving other third persons or entities, or out of any other
matter whatsoever related to any of the Loan Documents, or any
property encumbered thereby, but excluding any claim or liability
which arises as the direct result of the gross negligence or
willful misconduct of Lender. This indemnity provision shall
continue in full force and effect and shall survive not only the
making of the Loan and the advances but shall also survive the
repayment of the Loan and the performance of all of Borrower's
other obligations hereunder.
27. Assignment.
Lender may at any time assign its rights in this Note and the Loan
Documents, or any part thereof and transfer its rights in any or
all of the collateral, and Lender thereafter shall be relieved from
all liability with respect to such collateral. In addition, Lender
may at any time sell one or more participations in this Note.
Borrower may not assign its interest in this Note, or any other
agreement with Lender or any portion thereof, either voluntarily or
by operation of law, without the prior written consent of
Lender.
28. Trustees.
Neither Signatory Trustee nor Delaware
Trustee shall be replaced without Lender's prior written consent
(not to be unreasonably withheld, conditioned or delayed),
provided, however, that Borrower may replace (i) Signatory Trustee
with a Qualified Replacement Signatory Trustee upon thirty (30)
days prior written notice to Lender, and (ii) Delaware Trustee with
a Qualified Replacement Delaware Trustee Upon thirty (30) days
prior written notice to Lender.
9
29. Special
Transfer Provisions.
(a)
Notwithstanding
anything in the Loan Documents to the contrary, if Borrower is a
Delaware statutory trust, the holder of a beneficial ownership
interest in Borrower may transfer all or any portion of such
interest without the consent of Beneficiary so long as: (i) after
giving effect to suchtransfer, Borrower shall continue to comply
with the
representations, warranties and covenants under the Loan Documents,
(ii) if a transfer described in this clause (b) is a Material Owner
Transfer, Borrower shall deliver with
respect to each transferee, prior to such transfer and at
Borrower's sole cost and expense, "know your
customer" searches
confirming compliance with the above referenced sections, and
verifying the transferee has not been convicted of a
felony, is not then, nor has it been in the prior seven (7) years,
the subject of a bankruptcy action, (iii) each transferee of a DST
interest in connection with the initial transfer of such interest
has represented to Borrower that it is an accredited investor and
complies with the representation set forth in the Loan
Documents,
(iv) each such initial transfer of a DST interest complies with all
applicable Legal Requirements, including applicable securities laws
and regulations as certified by Borrower to Beneficiary, (v)
following such transfer, Borrower and Signatory Trustee
shall continue to be controlled by Guarantor and (vi)
each Guarantor shall remain a guarantor of the
Loan.
(b)
Notwithstanding
the foregoing provisions of this Section 29, if: (i) the Borrower
is a Delaware statutory trust, is treated for federal income tax
purposes as an "investment trust" pursuant to Treasure Regulation
Section 301.7701-4(c), desires (or is required by its Trust
Agreement or Signatory Trustee) to convert to a different form of
entity under applicable Delaware law (a "Conversion Event"), or
(ii) the Borrower is a Delaware statutory trust and desires (or is
required by its Trust Agreement or Signatory Trustee) to contribute
the Premises to a special purpose entity to be owned by the same
beneficial owners of Borrower in substantially the same proportions
as immediately prior to such transfer of the Property (a "Drop-Down
Distribution"), then Lender’s consent shall not be required
to such Conversion Event or Drop-Down Distribution; provided, each
of the following terms and conditions are satisfied:
(i) Borrower
shall deliver to Lender not less than thirty (30) days prior
written notice of such Conversion Event or Drop-Down
Distribution;
(ii) Lender
has not instituted proceedings (including, but not limited to,
acceleration of the Debt) or otherwise commenced to undertake its
remedies under the Loan Documents against Borrower or the Property
as a result of an Event of Default (unless such Conversion Event or
Drop-Down Distribution is being required by Lender in connection
with a Default or Event of Default);
(iii) Borrower
pays Lender's reasonable legal fees and a processing or review fee
equal to $5,000 to complete such further due diligence as Lender
may reasonably require;
(iv) In
the case of a Conversion Event or Drop-Down Distribution, the
resulting entity shall be a special purpose entity whose formation
documents shall be substantially consistent with the form of the
limited liability company operating agreement attached to
Borrower's Trust Agreement (or shall otherwise be approved by
counsel to Lender) (hereinafter the "Distributee
Entity");
(v) Distributee
Entity shall continue to be controlled by Guarantor;
(vi) The
Distributee Entity executes, without any third-party out-of-pocket
cost or expense to Lender, an assumption agreement whereby it
assumes all of Borrower's obligations under this Deed of Trust, the
Loan Agreement, the Note and the other Loan Documents and
concurrently with the closing of such Drop-Down Distribution or
Conversion Event, the Distributee Entity executes, without any
third-party out-of-pocket cost or expense to Lender, such other
documents and agreements as Lender shall reasonably require to
evidence and effectuate said assumption and delivers an
enforceability opinion and such other legal opinions as Lender my
reasonably require;
(vii) The
Distributee Entity acknowledges its obligations under the Loan
Documents and Guarantor ratifies its continuing obligations under
the Guaranty and the other Loan Documents, or any other guaranty or
indemnity agreement executed in favor of Lender, notwithstanding
the assumption or modification of the Loan Documents as a result of
the Conversion Event or Drop-Down Distribution by executing an
acknowledgment in form and substance reasonably satisfactory to
lender (the "Ratification
of Loan Documents");
(viii) Borrower
and the Distributee Entity deliver and/or execute, without any
third-party out-of-pocket cost or expense to Lender, new financing
statements or financing statement amendments (and new financing
statements as may be necessary) and any additional documents
reasonably requested by Lender;
10
(ix) Borrower
delivers to Lender, without any third-party out-of-pocket cost of
expense to Lender, such replacement policy or endorsements to
Lender's title insurance policy, hazard insurance policy
endorsements or certificates and other similar materials as Lender
may deem necessary, in its reasonable discretion, at the time of
the Conversion Event or Drop-Down Distribution, all in form and
substance satisfactory to Lender in its reasonable discretion,
including, without limitation, a replacement policy or an
endorsement or endorsements to Lender's title insurance policy
insuring the first priority Lien of the Deed of Trust, extending
the effective date of such policy to the date of execution and
delivery (or, if later, of recording) of the assumption agreement
referenced above in subparagraph (v) of this Section and insuring
that fee simple title to the Property is vested in the Distributee
Entity; and
(x) The
Distributee Entity shall furnish evidence of the Distributee
Entity's capacity and good standing and the qualification of the
signers to execute the documents related to the assumption of the
debt, which evidence shall include certified copies of all
organizational and formation documents of the Distributee
Entity.
[Remainder of page intentionally left blank; signature page
follows.]
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Note
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11
Dated
as of the day and year above written.
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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:
GK Development, Inc., an Illinois
corporation,
d/b/a GK Real Estate
Its:
Manager
By:
________________________
Name:
Xxxx Xxxxxxxxx
Title:
President and Sole Director
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Note – Signature Page
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12
RIDER
ATTACHED HERETO AND MADE A PART OF THE AMENDED AND RESTATED NOTE
DATED JULY 21, 2021 MADE BY GK DST – RIVER FOREST GROCERY, A
DELAWARE STATUTORY TRUST (HEREIN CALLED "BORROWER") PAYABLE TO THE
ORDER OF BARRINGTON BANK & TRUST COMPANY, N.A. (HEREIN,
TOGETHER WITH EACH SUCCESSIVE OWNER AND HOLDER OF THIS NOTE, CALLED
"LENDER")
Prior
to the Maturity Date, or the Loan otherwise becoming due, interest
shall accrue on the outstanding principal balance of the Loan from
time to time, at an annual interest rate ("Interest Rate") equal to
Two Hundred (220) Basis Points in excess of the thirty (30) day
London InterBank Offered Rate ("LIBOR"), the sum of which is named
"Adjusted LIBOR" and is defined below. Interest shall be due and
payable in installments commencing on August 10, 2021 and
continuing on the tenth (10th) day of each and
every succeeding month thereafter until the Maturity Date, at which
time the entire outstanding Indebtedness (as defined below) shall
be due and payable in full. Interest shall be calculated on a
thirty (30) day basis during the period for which interest is being
charged, predicated on a year consisting of three hundred sixty
(360) days.
For
purposes hereof, Adjusted LIBOR shall mean a rate of interest equal
to Two Hundred (220) Basis Points in excess of the per annum rate
of interest at which U.S. dollar deposits in an amount comparable
to the outstanding principal amount of the Loan and for a thirty
(30) day period on the first business day of each month are offered
generally to Lender (rounded upward to the nearest 1/16th of 1.00%)
in the London InterBank Eurodollar market at 11:00 a.m. (London
Time) two (2) banking days prior to the commencement of each
Interest Period, such rate to remain fixed until the next interest
reset date (approximately one calendar month later). For purposes
hereof, an Interest Period shall mean the monthly adjustment on the
first day of each calendar month later. Notwithstanding anything to
the contrary contained in the Note, in the event that LIBOR is less
than Zero Percent (0.00%) at any time during the term of the Note
(referred to herein as the “Percentage LIBOR period”),
then during the Percentage LIBOR period LIBOR shall mean and refer
to Zero Percent (0.00%)
Lender
determination of Adjusted LIBOR as provided above shall be
conclusive, absent manifest error. Furthermore, if Lender
determines, in good faith (which determination shall be conclusive,
absent manifest error) prior to the commencement of any Interest
Period that: (a) U.S. dollar deposits of sufficient amount and
maturity for funding the Loan are not available to any of the three
(3) largest Chicagoland banks in the London InterBank Eurodollar
market in the ordinary course of business; or (b) by reason of
circumstances affecting the London InterBank Eurodollar market,
adequate and fair means do not exist for ascertaining the rate of
interest applicable to the Loan, Lender shall promptly notify
Borrower and such LIBOR loan shall automatically convert on the
last day of its then-current Interest Period to a loan bearing
interest at the reference rate, the rate per annum then, and from
time to time, most recently charged, announced or published on a
daily basis in the Wall Street
Journal and in the event that the Prime Rate is no longer
published by the Wall Street
Journal, it shall then be the rate announced or published by
Lender as its reference rate ("Reference Rate"). The Reference Rate
is not necessarily the lowest rate charged by Lender on its loans
and is set by Lender in its sole discretion. Changes to the
Reference Rate and the corresponding changes to the interest rate
will occur without prior notice to Borrower. Lender will notify
Borrower of the current Reference Rate upon Borrower's request.
Borrower understands that Lender may make loans based on other
rates as well. The interest rate change will not occur more often
than once per day.
If,
after the date hereof, the introduction of, or any change in any
applicable law, treaty, rule, regulation or guideline or in the
interpretation or administration thereof by any governmental
authority or any central bank or other fiscal, monetary or other
authority having jurisdiction over Lender or its lending office
("Regulatory Change"), shall, in the opinion of counsel to Lender,
make it unlawful for Lender to make or maintain any LIBOR loan
evidenced hereby, then Lender shall promptly notify Borrower and
such LIBOR loan shall automatically convert on the last day of its
then-current interest quarter to a loan bearing interest at the
Reference Rate.
If any
Regulatory Change (whether or not having the force of law) shall
(a) impose, modify or deem applicable any assessment, reserve,
special deposit or similar requirement against assets held by, or
deposits in or for the account of or loans by, or any other
acquisition of funds or disbursements by, Lender; (b) subject
Lender or any LIBOR Loan to any tax, duty, charge, stamp tax or fee
or change the basis of taxation of payments to Lender of principal
or interest due from Borrower to Lender hereunder (other than a
change in the taxation of the overall net income of Lender); or (c)
impose on Lender any other condition regarding such LIBOR loan or
Lender's funding thereof, and Lender shall determine (which
determination shall be conclusive, absent manifest error) that the
result of the foregoing is to increase the cost to Lender of making
or maintaining such LIBOR loan or to reduce the amount of principal
or interest received by Lender hereunder, then Borrower shall pay
Lender, on demand, such additional amounts as Lender shall, from
time to time, reasonably determine are sufficient to compensate and
indemnify Lender for such increased cost or reduced amount provided
such amounts are equitably allocated among Lender's other borrowers
of LIBOR loans.
Interest after
maturity (whether by reason of acceleration or otherwise) shall be
paid on the unpaid balance at the Default Rate set forth in the
Note.
[Remainder of page intentionally left blank; signature page
follows.]
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Note – Rider
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13
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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:
GK Development, Inc., an Illinois
corporation,
d/b/a GK Real Estate
Its:
Manager
By:
________________________
Name:
Xxxx Xxxxxxxxx
Title:
President and Sole Director
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Note – Rider Signature Page
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14
