LOAN MODIFICATION AGREEMENT
Exhibit
6(i)
THIS DOCUMENT WAS PREPARED
BY AND AFTER RECORDING
SHOULD BE RETURNED TO:
Xxxxxx
X. Xxxxxx
Xxxxxxxx
Xxxxxx LLP
00 Xxxx
Xxxxxx Xxxxxx
00xx
Xxxxx
Xxxxxxx,
XX 00000
THIS
LOAN MODIFICATION AGREEMENT (the "Agreement") is made and entered
into as of the 21st day of July, 2021
by and among BARRINGTON BANK &
TRUST COMPANY, N.A., ("Lender"), RF GROCERY, LLC, an Illinois limited liability
company (“Original Borrower"), GK DST – RIVER FOREST GROCERY, a Delaware
statutory trust (herein called "New Borrower") and GK DEVELOPMENT, INC., an Illinois
corporation, d/b/a GK REAL ESTATE
("Guarantor").
WITNESSETH:
WHEREAS, Original
Borrower was the owner of certain real estate (the "Premises")
commonly known as 0000 Xxxx Xxxxx Xxxxxx, which is located in River
Forest, Xxxx County, State of Illinois and more particularly
described on Exhibit A attached hereto and made a part hereof;
and
WHEREAS, Original
Borrower has transferred the Premises to New Borrower;
and
WHEREAS, Lender has
heretofore made a mortgage loan (the "Loan") to Original Borrower
in the stated principal sum of Five Million One Hundred Ninety
Thousand Dollars and No Cents ($5,190,000.00); and
WHEREAS, the Loan
is evidenced and secured by the following documents in favor of
Lender (hereinafter defined and all other documents evidencing,
securing or otherwise governing the Loan are collectively referred
to as the "Loan Documents") each of which is dated as of July 17,
2020 unless otherwise stated:
(a) Note (the
" Note") made by Original Borrower in the stated principal sum of
Five Million One Hundred Ninety Thousand Dollars and No Cents
($5,190,000.00);
(b) Guaranty
of Non-Recourse Carve-Outs (the “Guaranty”) made by
Guarantor to Lender;
(c) Mortgage
(the "Mortgage") made by Original Borrower encumbering the Premises
and the improvements thereon and all other property, assets and
collateral therein described, which Mortgage was recorded in the
Office of the Recorder of Deeds of Xxxx County, Illinois (herein
called the "Recorder's Office") as Document No.
2020216123;
(d)
Assignment of Rents and Leases made by Original Borrower to Lender,
recorded in the Recorder’s Office as Document No.
2020216124;
(e) Security
Agreement made by Original Borrower to Lender;
(f) Undated
Uniform Commercial Code Financing Statements made by Original
Borrower, as debtor, to Lender, as secured party, recorded in the
Recorder's Office as Document No. 0000000000 and filed with the
Illinois Secretary of State as Document No. 26105404;
(g)
Environmental Indemnity Agreement made by Original Borrower and
Guarantor in favor of Lender; and
(h) Closing
Certificate made by Original Borrower and Guarantor in favor of
Lender; and
WHEREAS, Lender,
Original Borrower, New Borrower and Guarantor have agreed to
certain modifications to the Loan Documents; and
WHEREAS, the
agreements of the parties are set forth herein and limited to this
Agreement.
AGREEMENT
NOW,
THEREFORE, for valuable considerations, the receipt and sufficiency
of which are hereby acknowledged, it is agreed as
follows:
1. Preambles.
The preambles hereto are incorporated herein by reference as fully
and with the same force and effect as if each and every term,
provision and condition thereof was specifically recited herein at
length.
Definitions.
All terms herein not otherwise defined shall have the same meanings
as in the Note, Mortgage and in the other Loan
Documents.
3. New
Borrower. In
consideration of Lender consenting to the transfer of the Premises
from Original Borrower to New Borrower, New Borrower hereby assumes
and accepts all responsibilities, liabilities and obligations of
Original Borrower under the Loan Documents. Any reference to
Original Borrower in all of the Loan Documents shall mean and refer
to New Borrower. Any reference to Borrower or Mortgagor or Assignor
in all of the Loan Documents shall mean and refer to New
Borrower.
4. Amendment
to Note. In addition
to any other modifications contained in this Agreement, the terms
of the Note are hereby amended in the Amended and Restated Note of
even date herewith to be executed by New Borrower on or before the
date of this Agreement. Any reference to the Note in any of the
Loan Documents shall hereby be amended to mean and refer to the
Amended and Restated Note.
5. Amendment
to Mortgage. The
Mortgage is modified to secure the Note as hereby modified and is
deemed amended to conform to the terms and provisions hereof and
the amendments and modifications to the Loan and Loan Documents
effected hereby. New Borrower hereby assumes and accepts all
responsibilities, liabilities and obligations of Original Borrower
under the Mortgage.
6. Amendment
to Security Agreement. In addition to any other modifications
contained in this Agreement, the terms of the Security Agreement
are hereby amended in the Amended and Restated Security Agreement
of even date herewith to be executed by New Borrower on or before
the date of this Agreement. Any reference to the Security Agreement
in any of the Loan Documents shall hereby be amended to mean and
refer to the Amended and Restated Security Agreement.
7. Amendment
to Guaranty. The
Guaranty is modified to secure the Note as hereby modified and is
deemed amended to conform to the terms and provisions hereof and
the amendments and modifications to the Loan and Loan Documents
effected hereby.
8.
Amendment to Loan
Documents. The Loan
Documents are modified to secure the Note as hereby modified and
are deemed amended to conform to the terms and provisions hereof
and the amendments and modifications to the Loan and Loan Documents
effected hereby.
9. Continued
Priority. In the
event that, by virtue of any of the terms, conditions and
provisions of this Agreement, a lien or other property interest in
the Premises otherwise junior in priority to the liens created by
the Loan Documents shall gain superiority over the liens created by
the Loan Documents, this Agreement shall, nunc pro tunc, be null and void
without further action of the parties hereto to the fullest extent
as if it had never been executed, to the end that the priority of
the Loan Documents shall not be impaired.
10.
Title
Insurance. Concurrent
with the execution and delivery hereof by New Borrower, New
Borrower agrees to provide Lender with an endorsement to its
mortgagee's policy of title insurance ("Title Policy"), which
endorsement shall be acceptable to Lender and shall guarantee as of
the date hereof that:
(a)
there
are no objections to title except (a) general real estate taxes for
the year 2020 (second installment) and subsequent
years;
(b)
reflects the
recording of this Agreement;
(c)
reflects New
Borrower as the owner of the Premises;
and
(d) re-dates
the effective date of the Title Policy to the date of recording of
this Agreement.
11. Lender
Expenses. New
Borrower agrees to pay all costs, fees and expenses (including but
not limited to reasonable legal fees) incurred by Lender in
connection with the preparation of this Agreement. Such of the
foregoing as are incurred prior to the execution and delivery of
this Agreement shall be paid concurrent with such execution and
delivery. All other fees, costs and expenses shall be paid within
five (5) business days after notice from Lender of the amount due
and the reason therefor.
12. Non-Waiver.
In the event Lender shall at any time or from time to time disburse
portions of the Loan without New Borrower first satisfying all
conditions precedent set forth herein or in the Loan Documents,
Lender shall not thereby be deemed to have waived its right to
require such satisfaction of the same or other condition as a
condition precedent to its obligations to make further disbursement
of the Loan. Any forbearance by Lender in exercising any right or
remedy under the Note, Guaranty, 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 right or remedy 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 New
Borrower’s and Guarantor’s obligations under the Loan
Documents shall not constitute an election by Lender of remedies so
as to preclude the exercise of any other right or remedy available
to Lender.
13. Ratification.
The Loan Documents are hereby ratified, confirmed and approved and
are and shall remain in full force and effect pursuant to the terms
and conditions set forth therein, except to the extent otherwise
expressly modified hereby. Each of the Loan Documents is hereby
modified and amended so that all reference to such documents shall
be deemed to be a reference to the Loan Documents as hereby
modified and amended.
14. Joinder
of Guarantor.
Notwithstanding anything to the contrary contained herein Guarantor
has entered into this Agreement for the limited purpose of
ratifying and confirming Guarantor’s obligations under the
Guaranty, as amended hereby, and to acknowledge that the Guaranty
and the other Loan Documents, as amended hereby, remain in full
force and effect.
15. Release.
Original Borrower, New Borrower, Guarantor and any other obligor
under the Loan, on behalf of themselves and their respective
successors and assigns (collectively and individually, the
"Mortgagor Parties"), hereby fully, finally and completely release,
remise, acquit and forever discharge, and agree to hold harmless
Lender and its respective successors, assigns, affiliates,
subsidiaries, parents, officers, shareholders, directors,
employees, fiduciaries, attorneys, agents and properties, past,
present and future, and their respective heirs, successors and
assigns (collectively and individually, the "Mortgagee Parties"),
of and from any and all claims, controversies, disputes,
liabilities, obligations, demands, damages, debts, liens, actions,
and causes of action of any and every nature whatsoever, known or
unknown, direct or indirect, whether at law, by statute or in
equity, in contract or in tort, under state or federal
jurisdiction, and whether or not the economic effects of such
alleged matters arise or are discovered in the future
(collectively, the "claims"), which the Mortgagor Parties have as
of the date of this agreement or may claim to have against the
Mortgagee Parties, including but not limited to, any claims arising
out of or with respect to any and all transactions relating to the
Loan or the Loan Documents occurring on or before the date of this
Agreement, including but not limited to, any loss, cost or damage
of any kind or character arising out of or in any way connected
with or in any way resulting from the acts, actions or omissions of
the Mortgagee Parties occurring on or before the date of this
Agreement. The foregoing release is intended to be, and is, a full,
complete and general release in favor of the Mortgagee Parties with
respect to all claims, demands, actions, causes of action and other
matters described therein, or any other theory, cause of action,
occurrence, matter or thing which might result in liability upon
the Mortgagee Parties arising or occurring on or before the date of
this Agreement. The Mortgagor Parties understand and agree that the
foregoing general release is in consideration for the agreements of
Lender contained herein and that they will receive no further
consideration for such release. Furthermore, each of the Mortgagor
Parties represents and warrants to Lender that she, he or it: (i)
read this agreement, including without limitation, the release set
forth in this section (the "Release Provision"), and understands
all of the terms and conditions hereof, and (ii) executes this
Agreement voluntarily with full knowledge of the significance of
this Release Provision and the releases contained herein and
execution hereof. The Mortgagor Parties agree to assume the risk of
any and all unknown, unanticipated, or misunderstood claims that
are released by this Agreement.
16. Counterpart.
This Agreement may be executed in separate counterparts and such
counterparts, taken together, shall constitute a fully executed and
enforceable Agreement.
(Remainder of Page
Intentionally Blank; Signature Page Follows)
IN
WITNESS WHEREOF, the parties hereto have executed and delivered
this Agreement as of the day, month and year first written
above.
LENDER:
BARRINGTON BANK & TRUST
COMPANY, N.A.
By:
Name:
Title:
NEW
BORROWER:
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
ORIGINAL BORROWER:
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:
Xxxx Xxxxxxxxx
Title:
President and Sole Director
GUARANTOR:
GK DEVELOPMENT, INC., an Illinois
corporation, d/b/a GK REAL ESTATE
By:
________________________
Name:
Xxxx Xxxxxxxxx
Title:
President and Sole Director
STATE
OF ILLINOIS
)
)
SS
COUNTY
OF XXXX
)
I, the
undersigned, a Notary Public in and for the county and state
aforesaid, do hereby certify that ____________________, the
______________ of Barrington Bank
& Trust Company, N.A., personally known to me to be the
same person whose name is subscribed to the foregoing instrument,
appeared before me in person and acknowledged that they signed,
sealed and delivered the said instrument as their own free and
voluntary act, and as the free and voluntary act of said
Barrington Bank & Trust
Company, N.A., for the uses and purposes therein set
forth.
Given
under my hand and notarial seal this _____ day of _____________,
2021.
|
Notary Public |
STATE
OF ILLINOIS
)
)
SS
COUNTY
OF XXXX
)
I, the
undersigned, a Notary Public in and for the county and state
aforesaid, do hereby certify that Xxxx Xxxxxxxxx, the President and Sole
Director of GK Development, Inc., an Illinois corporation, d/b/a GK
Real Estate, the Manager of River Forest Grocery – GK
Services LLC, a Delaware limited liability company, the Signatory
Trustee of GK DST – RIVER
FOREST GROCERY, a Delaware statutory trust, personally known
to me to be the same person whose name is subscribed to the
foregoing instrument, appeared before me in person and acknowledged
that he signed, sealed and delivered the said instrument as his
free and voluntary act and as the free and voluntary act of
GK DST – RIVER FOREST
GROCERY, for the uses and purposes therein set
forth.
Given
under my hand and notarial seal this ____ day of __________,
2021.
______________________________
Notary
Public
STATE
OF ILLINOIS
)
)
SS
COUNTY
OF XXXX
)
I, the
undersigned, a Notary Public in and for the county and state
aforesaid, do hereby certify that Xxxx Xxxxxxxxx, the President and Sole
Director of GK Development, Inc., an Illinois corporation, d/b/a GK
Real Estate, the Manager of RF
GROCERY, LLC, an Illinois limited liability company,
personally known to me to be the same person whose name is
subscribed to the foregoing instrument, appeared before me in
person and acknowledged that he signed, sealed and delivered the
said instrument as his free and voluntary act and as the free and
voluntary act of RF GROCERY,
LLC, for the uses and purposes therein set
forth.
Given
under my hand and notarial seal this ____ day of __________,
2021.
______________________________
Notary
Public
STATE
OF ILLINOIS
)
)
SS
COUNTY
OF XXXX
)
I, the
undersigned, a Notary Public in and for the county and state
aforesaid, do hereby certify that Xxxx Xxxxxxxxx, the President and Sole
Director of GK DEVELOPMENT, INC.,
an Illinois corporation, d/b/a GK REAL ESTATE, personally
known to me to be the same person whose name is subscribed to the
foregoing instrument, appeared before me in person and acknowledged
that he signed, sealed and delivered the said instrument as his
free and voluntary act and as the free and voluntary act of
GK DEVELOPMENT, INC., an Illinois
corporation, d/b/a GK REAL ESTATE, for the uses and purposes
therein set forth.
Given
under my hand and notarial seal this ____ day of _______,
2021.
______________________________
Notary
Public
EXHIBIT A
Legal
Description
XXXX 0,
0, 0, 0 XXX 0 XX XXXXX 3 IN X.X. XXXXXX’X SUBDIVISION OF THE
EAST ½ OF THE WEST ½ OF THE NORTHEAST ¼ OF SECTION
1, TOWNSHIP 39 NORTH, RANGE 12, EAST OF THE THIRD PRINCIPAL
MERIDIAN, IN XXXX COUNTY, ILLINOIS,
ALSO
XXXX 0,
0, 0, 0 XXX 0 XX XXXXX 1 IN XXXXXXX X. XXXXXXX’X SUBDIVISION
OF THE WEST ½ OF THE WEST ½ OF THE NORTHEAST ¼ OF
SECTION 1, TOWNSHIP 39 NORTH, RANGE 12, EAST OF THE THIRD PRINCIPAL
MERIDIAN, IN XXXX COUNTY, ILLINOIS.
Address of Property:
0000
Xxxx Xxxxx Xxxxxx
Xxxxx
Xxxxxx, XX 00000
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Permanent Index Nos.:
15-01-201-025-0000
15-01-201-026-0000
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