EIGHTH LOAN DOCUMENTS MODIFICATION AGREEMENT
THIS EIGHTH LOAN DOCUMENTS MODIFICATION AGREEMENT (this “Eighth Amendment”) is dated as of the 22nd day of December, 2023, by and between EXCHANGERIGHT REAL ESTATE, LLC, a California limited liability company, whose address is 1055 E. Colorado Boulevard, Suite 310 (“Borrower”), AMERIS BANK, a Georgia banking corporation, whose address is 3490 Piedmont Road N.E., Suite 750, Atlanta, Georgia 30305, Attn: Charles Markley (hereinafter referred to as “Lender”), DAVID FISHER, a Minnesota resident (“Fisher”), JOSHUA UNGERECHT, a Texas resident (“Ungerecht”), WARREN THOMAS, a California resident (“Thomas”; Thomas, Fisher and Ungerecht are each referred to herein individually and collectively as the context may require, an “Individual Guarantor”), EXCHANGERIGHT NET-LEASED PORTFOLIO 66 DST, a Delaware statutory trust (each of the foregoing a “Subsidiary Guarantor”; Individual Guarantor and each Subsidiary Guarantor are each referred to herein individually and collectively as the context may require as a “Guarantor”).
BACKGROUND STATEMENT
Borrower and Lender are parties to that certain Loan Agreement, dated May 19, 2021, (as amended, restated, supplemented or otherwise modified heretofore or hereinafter from time to time, the “Loan Agreement”; capitalized terms used and not defined herein shall have the meanings assigned to them in the Loan Agreement).
Certain obligations of Borrower provided for in the Loan Documents are guaranteed by Individual Guarantor pursuant to that certain Guaranty of Payment and Performance dated May 19, 2021 (as amended, restated, supplemented or otherwise modified heretofore or hereinafter from time to time, the “Original Guaranty”). Certain obligations of Borrower provided for in the Loan Documents are guaranteed by Subsidiary Guarantor pursuant to certain Joinders to Guaranty of Payment and Performance and Reaffirmation of Loan Agreement (each as amended, restated, supplemented or otherwise modified heretofore or hereinafter from time to time, a “Joinder to Guaranty”; the Original Guaranty and each Joinder to Guaranty are each referred to herein individually and collectively as the context may require as a “Guaranty”).
As of the date hereof, Borrower and Lender have agreed to modify the Loan Agreement to modify the payment provisions as further set forth herein. Guarantor has agreed to reaffirm the Guaranty, and the parties are entering into this Eighth Amendment to evidence their agreement.
AGREEMENT
FOR AND IN CONSIDERATION of the sum of Ten and No/100 Dollars ($10.00), the foregoing recitals, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto do hereby agree as follows:
such Guaranty, as amended by this Eighth Amendment. Guarantor hereby reaffirms and restates, as of the date hereof, all covenants, representations and warranties set forth in the Guaranty and specifically reaffirms that its obligations under the Guaranty extend and apply for all purposes to the Loan Documents as amended herein.
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[Signatures appear on the following pages]
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IN WITNESS WHEREOF, this Eighth Amendment has been duly executed under seal by Borrower, Guarantor, and Lender, as of the day and year first above written.
BORROWER:
EXCHANGERIGHT REAL ESTATE, LLC
a California limited liability company
By: ______________________________________
Name: Warren Thomas
Title: Managing Member
(SEAL)
[Signatures continue on the following page]
GUARANTOR:
(SEAL) DAVID FISHER
See attached (SEAL) JOSHUA UNGERECHT
/s/ Warren Thomas (SEAL) WARREN THOMAS
EXCHANGERIGHT NET-LEASED PORTFOLIO 66 DST,
a Delaware statutory trust
By: ExchangeRight Asset Management, LLC, a California limited liability company, its
manager
By: ExchangeRight Real Estate, LLC,
a California limited liability company, its sole member
By: ______________________________________
Name: Warren Thomas
Title: Manager
(SEAL)
[Signatures continue on the following page]
GUARANTOR:
_______________________ (SEAL)
DAVID FISHER
/s/ Joshua Ungerecht_______ (SEAL)
JOSHUA UNGERECHT
_______________________ (SEAL)
WARREN THOMAS
GUARANTOR:
/s/ David Fisher_________(SEAL)
DAVID FISHER
(SEAL) JOSHUA UNGERECHT
(SEAL) WARREN THOMAS
EXCHANGERIGHT NET-LEASED PORTFOLIO 66 DST,
a Delaware statutory trust
By: ExchangeRight Asset Management, LLC, a California limited liability company, its
manager
By: ExchangeRight Real Estate, LLC,
a California limited liability company, its sole member
By: Name: Warren Thomas
Title: Manager (SEAL)
[Signatures continue on the following page]
LENDER: AMERIS BANK,
a Georgia banking corporation
By: /s/ Charles Markley
Name: Charles Markley Title: Senior Vice President
(SEAL)
Signature Page
Exhibit A
Conformed Loan Agreement See attached.
THIS IS A CONFORMED COPY OF THE LOAN AGREEMENT INCORPORATING THE CHANGES MADE THROUGH THE EIGHTH LOAN DOCUMENTS MODIFICATION AGREEMENT, DATED DECEMBER 22, 2023.
LOAN AGREEMENT
THIS LOAN AGREEMENT (this “Loan Agreement”) is made and entered into as of May 19, 2021, by and between EXCHANGERIGHT REAL ESTATE, LLC, a California limited liability company (“Borrower”), and AMERIS BANK, a Georgia banking corporation (“Lender”).
R e c i t a l s:
As of the original date of this Loan Agreement, Borrower had applied to Lender for a loan in the principal amount of $40,000,000. On or around June 8, 2021, Borrower applied to Lender to increase such loan to the principal amount of $60,000,000; as of July 8, 2021, Borrower applied to Lender to further increase such loan to the principal amount of $85,000,000; as of December 13, 2021, Borrower applied to Lender to further increase such loan on an interim basis to the principal amount of
$150,000,000; as of December 28, 2021, the principal loan amount was reduced to $120,900,000; following the sale of each Third Amendment Date Property, the principal amount of the Loan was reduced back to $85,000,000; and as of December 22, 2023, the principal loan amount was reduced to
$80,000,000. Borrower and Lender have entered into this Loan Agreement to establish the terms and conditions of the disbursement of the Loan and the rights and obligations of Borrower with respect to the Loan and the Properties (as defined herein).
NOW, THEREFORE, in consideration of the premises and of the mutual covenants, agreements, and warranties hereinafter set forth and of the sum of Ten Dollars ($10.00) in hand paid by each party hereto to the other, Borrower agrees with Lender, and represents and warrants to Lender, and Lender agrees with Borrower, as follows:
ARTICLE 1.
DEFINED TERMS AND RULES OF CONSTRUCTION
“Access Laws” is defined in Section 4.5 hereof.
“Acquisition Date” means the date that a Subsidiary Guarantor acquires a Property after
the date hereof.
“Acquisition Date Loan Documents” means collectively the documents described in
Schedule I attached hereto.
“Affiliate” means, as to any Person, any other Person (i) who directly or indirectly controls, is controlled by, or is under common control with such Person, or (ii) who is a director, officer, or manager of such Person.
“Appraisal” means a current third party appraisal of the value of a Property, commissioned by Lender and prepared at the expense of Borrower or a Subsidiary Guarantor by a duly licensed and qualified appraiser selected by Lender, which complies with all applicable Legal Requirements and the requirements of Lender and its internal appraisal review group, and which has been approved by Lender’s internal appraisal review group.
“Asset Management Agreement” means any agreement entered into by Borrower or any Subsidiary Guarantor with respect to the management of any Property, as approved in writing by Lender pursuant to the applicable provisions of this Loan Agreement.
“Asset Manager” means ER Net Leased Asset Management, LLC, a Delaware limited liability company, an Affiliate of Borrower, or the Person selected by Borrower or any Subsidiary Guarantor pursuant to the applicable Asset Management Agreement, and any replacement asset manager of any Property hereafter approved in writing by Lender in accordance with the applicable provisions of the Loan Documents.
“Borrower” is defined in the preamble of this Loan Agreement and shall include any successor obligor of the Loan or any other Obligations from time to time, subject to the provisions of this Loan Agreement restricting the assignment or rights and the delegation of obligations hereunder.
“Business Day” means a day that is not a public holiday and on which banks in Atlanta, Georgia, are customarily open for business.
“Closing” means the execution and delivery of the Closing Date Loan Documents. “Change” is defined in Section 8.6 hereof.
“Closing Date” means the date of this Loan Agreement.
“Closing Date Loan Documents” means collectively the documents described in
Schedule II attached hereto.
“Closing Date Properties” shall mean the Properties more specifically described on
Schedule III attached hereto.
“Closing Date Subsidiary Guarantor[s]” shall mean ExchangeRight Essential Income Strategy Properties 3, LLC, a Delaware limited liability company.
“Collateral” means each Property, the Leases, and all other real and personal property now or hereafter furnished by Borrower, any Subsidiary Guarantor or any other Person as security for the Obligations, as described in each Mortgage, this Loan Agreement, or any other Loan Document, whether such property currently exists or is hereafter acquired or created.
“Compliance Certificate” means a certificate signed by Borrower in the form attached hereto as Exhibit A, together with operating statements, a rent roll, and other documentation supporting the calculation of the Debt Service Coverage Ratio set forth therein.
“Consolidated Debt Service” means the aggregate amount of monthly installments of principal and interest that would be due and payable over a period of twelve (12) months if the principal amount outstanding under all Delayed Draw Term Notes as of the date of calculation were amortized on a substantially linear basis over a term of three hundred sixty (360) months at the Prime Rate.
“Consolidated Debt Service Coverage Ratio” means, as of any determination date, the quotient, expressed as a decimal, of the In-Place NOI for all Properties for the twelve (12) full calendar month period ending prior to such determination date, divided by Consolidated Debt Service.
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“Control”, whether such term is capitalized or not and whether used as a noun or a verb in any tense, means, with respect to any Person, the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by contract or otherwise, including the power to elect a majority of the directors or trustees of a corporation or trust, as the case might be.
“Corporate Loan Parties” shall mean Borrower and each Subsidiary Guarantor. “Corporate Loan Party” shall mean any one of the foregoing.
“Default” means the occurrence and continuation of any event or circumstance that, but for only the giving of any notice by Lender or the passage of any cure period (or both) required under the terms of this Loan Agreement or any other Loan Document, would constitute an Event of Default.
“Default Rate” is defined in Section 2.3(b) hereof.
“Delayed Draw Term Loan” shall mean a term loan made by Lender to Borrower, in an amount to be evidenced in each Delayed Draw Term Note.
“Delayed Draw Term Note” shall mean a Delayed Draw Term Note, executed by Borrower in favor of Lender, in the form attached hereto as Exhibit B.
“Delayed Draw Term Note Fee” shall mean a fee in the amount of 0.15% of the principal amount of each Delayed Draw Term Note.
“Delayed Draw Term Note Six Month Fee” shall mean a fee in the amount of 0.10% of the principal amount of each Delayed Draw Term Note.
“Delayed Draw Term Note Maturity Date” shall mean the date that is twelve (12) months following the date of execution of such Delayed Draw Term Note.
“Deposit Accounts” is defined in Section 5.3 hereof.
“Deposit Accounts Collateral” is defined in Section 5.3 hereof.
“Distribution” is defined in Section 6.8 hereof.
“DSCR Event of Default” is defined in Section 5.5 hereof.
“Eighth Amendment Closing Date” shall mean December 22, 2023. “Event of Default” is defined in Section 7.1 hereof.
“Excess Cash Flow” means, for any calendar month, all gross rentals, revenues, and other income collected or received by Borrower or any Subsidiary Guarantor during that month, minus (i) reasonable and customary operating expenses actually incurred and paid during that month that are directly attributable to the operation of the Properties, (ii) a monthly reserve for taxes, insurance, and capital replacements, as approved by Lender in its reasonable judgment, (iii) debt service payments and fees actually paid with respect to the Loan during that month, and (iv) any extraordinary or non-recurring expenses and capital expenditures actually incurred and paid by Borrower or a Subsidiary Guarantor during that month that are approved by Lender in its sole but reasonable discretion, all as determined and shown by the operating statements of Borrower and Subsidiary Guarantors.
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“Excess Cash Flow Account” is defined in Section 5.5 hereof.
“Governmental Authority” means any court, board, agency, commission, office, or authority of any nature whatsoever for any governmental or quasi-governmental unit (federal, state, county, district, municipal, city, or otherwise), whether now or hereafter in existence.
“Guarantor” means each Individual Guarantor, each Subsidiary Guarantor, and any future endorser, guarantor, or surety of the Obligations or any portion thereof, separately and collectively.
“Guaranty” means that certain Guaranty of Payment and Performance of even date herewith executed by Individual Guarantor for the benefit of Lender, as from time to time joined into by certain Subsidiary Guarantors or otherwise amended, replaced, restated, supplemented, or consolidated pursuant to the applicable terms thereof.
“Hazardous Material” and “Hazardous Material Laws” are defined in the applicable
Mortgage.
“Impositions” is defined in Section 4.9 hereof.
“Impositions Reserve” is defined in Section 2.8 hereof.
“Indebtedness” shall mean, without duplication (i) all obligations for borrowed money,
(ii) all obligations evidenced by bonds, debentures, notes or similar instruments, (iii) all obligations in respect of the deferred purchase price of property or services (other than trade payables incurred in the ordinary course of business that are not overdue by more than 120 days), (iv) all obligations under any conditional sale or other title retention agreements relating to property acquired; (v) all capital lease obligations, (vi) all obligations, contingent or otherwise, of such Person in respect of letters of credit, acceptances or similar extensions of credit, (vii) all guarantees of the type of Indebtedness described in clauses (i) through (vi) above, (viii) all Indebtedness of a third party secured by any lien on owned property, (ix) all obligations, contingent or otherwise, to purchase, redeem, retire or otherwise acquire for value any capital stock, (x) all off-balance sheet liabilities and (xi) all net hedging obligations. For all purposes hereof, Indebtedness shall include the Indebtedness of any partnership or joint venture in which Borrower is a general partner or joint venturer, unless such Indebtedness is expressly made non-recourse to Borrower.
“Individual Guarantor” means each of (1) David Fisher, a Minnesota resident, (2) Joshua Ungerecht, a Texas resident, (3) Warren Thomas, a California resident.
“In-Place NOI” is defined as the sum of actual contractual rents for the period in which the calculation is performed, annualized, including fixed minimum rent and aggregate reimbursement actually paid for the applicable period under Leases (less any free rent or concessions reducing rent and not including rent or revenue from any Lease in default beyond any applicable cure period, or any Lease under which scheduled rental payments (other than free rent concession) have been abated, in whole or in part, for any reason, other than an abatement of rent arising from a casualty event and for which the proceeds of rental insurance coverage is sufficient to cover such abated rent (provided that the tenant does not have the right to terminate such Lease on account of such casualty event), less delinquencies, plus prior 12 months miscellaneous income (excluding late fees), plus actual expense reimbursements less the greater of (A) actual trailing twelve month operating expenses, including a 3% management fee, property taxes and insurance premiums as such amounts are set forth in Borrower’s annual operating budget approved by Lender from time to time, and $0.10 per square foot in capital reserves), or (B) if actual twelve month operating expenses are not available, actual annualized operating expenses for the
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applicable period. Operating expenses will not include (x) non-cash expenses, such as depreciation, and
(y) any interest or principal payments on the Loan.
“Interest Rate Adjustment Date” shall mean the first day of each calendar month, commencing on June 1, 2021, and continuing on the 1st day of each calendar month thereafter. However, if the first day of any calendar month is not a banking day, then, at the Lender's option, the Interest Rate Adjustment Date for that particular month will be the first banking day immediately following thereafter.
“Joinder to Guaranty” shall mean a Joinder to Guaranty of Payment and Performance and Reaffirmation of Loan Agreement, executed by a Subsidiary Guarantor, and acknowledged and agreed to by Borrower, in favor of Lender, joining such Subsidiary Guarantor to the Guaranty.
“Joinder to Reimbursement and Contribution Agreement” shall mean a Joinder to Reimbursement and Contribution Agreement, executed by a Subsidiary Guarantor, joining such Subsidiary Guarantor to the Reimbursement and Contribution Agreement.
“Lease” means any existing and future lease, sublease, rental agreement, or other occupancy agreement, whether oral or written and whether or not of record, for the use or occupancy of any portion of a Property, including, together with all amendments thereto and renewals and extensions thereof, and all guaranties with respect thereto, all default letters or notices, estoppel letters, rental adjustment notices, escalations notices, and other correspondence in regard thereto, and all credit reports and accounting records in regard thereto.
“Leasing Requirements” shall mean:
Giant, Hobby Lobby and Publix
“Legal Requirements” means, as the case might be, any one or more of all applicable present and future laws, codes, ordinances, orders, judgments, decrees, injunctions, rules, regulations, and requirements, even if unforeseen or extraordinary, of every duly constituted Governmental Authority (but excluding those which by their terms are not applicable to and do not impose any obligation on Borrower, any Subsidiary Guarantor or any Property), including, without limitation, the requirements and conditions of any Permits and all covenants, restrictions, and conditions now or hereafter of record that might be applicable to Borrower, any Subsidiary Guarantor or any Property or to the use, manner of use, occupancy, possession, operation, maintenance, alteration, repair, or reconstruction of any Property, even if compliance therewith (i) necessitates structural changes or improvements (including changes required to comply with Access Laws) or results in interference with the use or enjoyment of any Property or (ii) requires Borrower to carry insurance other than as required by the provisions of this Loan Agreement, any other Loan Document, or any Lease.
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“Lender” is defined in the preamble of this Loan Agreement and shall include any successor holder of the Loan from time to time.
“Loan” means a revolving loan in an amount of $80,000,000, to be evidenced by a Delayed Draw Term Note corresponding to the acquisition of each Property.
“Loan Agreement” means this Loan Agreement, as from time to time amended, replaced, restated, supplemented, restated, or consolidated pursuant to the applicable provisions hereof.
“Loan Documents” means collectively the Closing Date Loan Documents, the Acquisition Date Loan Documents, and any other document hereafter executed by any Obligor or any other Person that evidences, relates to, is executed in connection with, or secures the Obligations.
“Loan Fee” means a fee in the amount of $60,000.
“Material Adverse Change” means, with respect to any circumstance, act, condition, or event of whatever nature (including any adverse determination in any litigation, arbitration, or governmental investigation or proceeding), whether singly or in conjunction with any other event or events, act or acts, condition or conditions, or circumstance or circumstances, whether or not related, a material adverse change in or a materially adverse effect upon any of (i) the present or future ability of any Obligor to perform the Obligations for which it is liable under the terms of any Loan Document, (ii) the validity, priority, perfection or enforceability of any Loan Document or the rights or remedies of Lender thereunder, or (iii) the value of, or Lender’s ability to have recourse against, any Property or any other Collateral.
“Minimum Property Debt Service Coverage Ratio” is defined in Section 5.5 hereof.
“Moody’s” shall mean Moody’s Investors Service, Inc.
“Mortgages” means, collectively, certain mortgages, assignments of rents, security agreements and fixture filings, deeds to secure debt, assignments of leases and rents, security agreements and fixture filings, deeds of trust, assignments of leases and rents and fixture filings executed by the applicable Subsidiary Guarantor in favor of Lender or for the benefit of the trustee, on behalf of lender, as applicable, as each of the foregoing might hereafter be amended, extended, replaced, supplemented, restated, or consolidated pursuant to the applicable provisions thereof. “Mortgage” shall mean any one of the foregoing.
“Net Worth” shall mean, at any time, (i) the fair market value of the total assets of Borrower (excluding goodwill, patents, trademarks, trade names, organization expense, treasury stock, unamortized debt discount and expense, treasury stock, unamortized debt discount and expense, deferred research and development costs, deferred marketing expenses and other like intangibles) determined in accordance with standard accounting methods acceptable to Lender in its reasonable discretion, consistently applied for a fair presentation, minus (ii) the total liabilities of such Person (including, without limitation, such Person’s contingent liabilities that have accrued under such accounting methods; including, for clarification, the value of each Property.
“Note” means each and every promissory note evidencing Borrower’s promise to repay the Loan or any portion thereof (including, without limitation, each Delayed Draw Term Note), with interest thereon, as the same might hereafter be amended, extended, renewed, replaced, supplemented, restated, or consolidated pursuant to the applicable provisions thereof.
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“Obligations” means the aggregate of all principal and interest owing from time to time for the Loan under the Notes and this Loan Agreement, and all expenses, charges, and other amounts from time to time owing under the Notes, this Loan Agreement, or the other Loan Documents, and all covenants, agreements, and other obligations from time to time owing to, or for the benefit of, Lender pursuant to the Notes, this Loan Agreement, and the other Loan Documents.
“Obligor” means each of Borrower and each Guarantor, and “Obligors” means Borrower and Guarantor collectively.
“OFAC List” is defined in Section 3.18 hereof.
“OFAC Rules” is defined in Section 3.18 hereof.
“Pacific Western” means Pacific Western Bank, a California state-chartered bank. “Permit” means each license, permit, certificate, approval, authorization, or registration
that, under Legal Requirements, are required to be obtained from any Governmental Authority or any other Person with respect to the ownership, rental, operation, use, or occupancy of any Property, including, without limitation, building permits, environmental permits, the approval of owners’ associations, architectural control committee, or other similar Persons, business licenses, zoning approvals and variances, liquor licenses, food and beverage service licenses, and licenses to conduct business, and all such other permits, licenses, and rights.
“Permitted Encumbrances” means collectively (i) liens at any time existing in favor of Lender, (ii) liens existing in favor of Pacific Western arising under that certain Credit Agreement between Borrower and Pacific Western dated January 5, 2021, as amended, restated, supplemented or otherwise modified from time to time, but specifically excluding any lien on the Collateral, (iii) statutory liens incurred in the ordinary course of business for the purchase of labor, services, materials, equipment, or supplies, or with respect to workmen’s compensation, unemployment insurance, or other forms of governmental insurance or benefits, which are not delinquent or are paid or bonded and removed of record in a manner satisfactory to Lender, (iv) liens for real property taxes, assessments, or governmental charges or levies for the current year, the payment of which is not delinquent, (v) any Lease approved (or deemed approved or not requiring Lender’s approval) by Lender pursuant to the terms of this Loan Agreement, and (vi) any other matter affecting title to any Property that appears as an exception to coverage in Lender’s title insurance policy insuring each Mortgage.
“Permitted Transfer” is defined in Section 6.5 hereof.
“Person” means any individual, corporation, limited liability company, partnership, joint venture, association, trust, unincorporated organization, and any Governmental Authority.
“Policies” is defined in Section 4.12 hereof.
“Post-Closing Properties” shall mean those certain Properties to be acquired by a Subsidiary Guarantor.
“Prepayment” is defined in Section 2.7 hereof.
“Prime Rate” means a fluctuating rate of interest equal to the highest annual rate of interest which is published from time to time in the "Money Rates" section of The Wall Street Journal as the Prime Rate (or, if such source is not available, such alternate source as determined by the Lender).
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Any change in the rate will take effect on each Interest Rate Adjustment Date as defined herein. Interest will accrue on any non-banking day at the rate in effect on the immediately preceding banking day. The Lender's Prime Rate is not necessarily the lowest rate charged by the Lender on its loans. The Lender may charge rates of interest lower than, equal to, or higher than, the "Prime Rate" as defined herein.
“Principal Payment Commencement Date” is defined in Section 2.4 hereof.
“Prohibited Person” is defined in Section 3.18 hereof.
“Prohibited Transfer” is defined in Section 6.5 hereof.
“Properties” means the Closing Date Properties and the Post-Closing Properties, provided, however, that once the Property Release Conditions have been satisfied for a particular Closing Date Property or a Post-Closing Property, then such shall no longer be deemed Properties hereunder. “Property” means any one of those Properties.
“Property Debt Service” means the aggregate amount of monthly installments of principal and interest that would be due and payable over a period of twelve (12) months if the principal amount outstanding under the Delayed Draw Term Notes outstanding issued in connection with the acquisition of such Property as of the date of calculation were amortized on a substantially linear basis over a term of three hundred sixty (360) months at the Prime Rate.
“Property Debt Service Coverage Ratio” means, as of any determination date, the quotient, expressed as a decimal, of the In-Place NOI for the Property acquired with the proceeds of the Loan as evidenced by a Delayed Draw Term Note for the twelve (12) full calendar month period ending prior to such determination date, divided by Property Debt Service.
“Property Management Agreement” means any agreement entered into by Borrower or any Subsidiary Guarantor with respect to the management, operation, leasing, or maintenance of any Property, as approved in writing by Lender pursuant to the applicable provisions of this Loan Agreement.
“Property Manager” means ER Net Leased Property Management, LLC, a Delaware limited liability company, an Affiliate of Borrower, or the Person initially selected by Borrower or any Subsidiary Guarantor to manage any Property pursuant to a Property Management Agreement, and any replacement manager of any Property hereafter approved in writing by Lender in accordance with the applicable provisions of the Loan Documents.
“Property Release Conditions” mean:
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“Reimbursement and Contribution Agreement” shall mean that certain Reimbursement and Contribution Agreement, to be entered into on or after the date hereof, by and among Borrower and certain Subsidiary Guarantors, in the form attached hereto as Exhibit C.
“Restricted Payments” means any direct or indirect payment, dividend or distribution made on account of Capital Stock, as herein defined, including, without limitation, any payment on account of, or assets set apart for a sinking or other analogous fund for the purchase, redemption, retirement, defeasance or other acquisition of, any class of its Capital Stock, or indebtedness subordinated to the Obligations, or any options, warrants, or other rights to purchase such Capital Stock or such indebtedness, whether now or hereafter As used herein, “Capital Stock” means all shares, options, warrants, general or limited partnership interests, membership interests or other equivalents (regardless of how designated) of or in a corporation, partnership, limited liability company or equivalent entity whether voting or nonvoting, including common stock, preferred stock or any other “equity security” (as such term is defined in Rule 3a11-1 of the General Rules and Regulations promulgated by the Securities and Exchange Commission under the Securities Exchange Act of 1934).
“Revolver Maturity Date” shall mean December 22, 2026.
“Risk-Based Capital Guidelines” means (i) the risk-based capital guidelines in effect in the United States on the date of this Loan Agreement, including transition rules, and (ii) the corresponding capital regulations promulgated by regulatory authorities outside the United States, including transition rules, and any amendments to such regulations adopted prior to the date of this Loan Agreement. means any direct or indirect payment, dividend or distribution made on account of Capital Stock, as herein defined, including, without limitation, any payment on account of, or assets set apart for a sinking or other analogous fund for the purchase, redemption, retirement, defeasance or other acquisition of, any class of its Capital Stock, or indebtedness subordinated to the Obligations, or any options, warrants, or other rights to purchase such Capital Stock or such indebtedness, whether now or hereafter As used herein, “Capital Stock” means all shares, options, warrants, general or limited partnership interests, membership interests or other equivalents (regardless of how designated) of or in a corporation, partnership, limited liability company or equivalent entity whether voting or nonvoting, including common stock, preferred stock or any other “equity security” (as such term is defined in Rule
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3a11-1 of the General Rules and Regulations promulgated by the Securities and Exchange Commission under the Securities Exchange Act of 1934).
“S&P” shall mean Standard & Poor’s, a division of The McGraw-Hill Companies, Inc. “Sanctions” means sanctions administered or enforced by the US Department of the
Treasury’s Office of Foreign Assets Control (OFAC), US Department of State, United Nations Security Council, European Union, Her Majesty’s Treasury, or other relevant sanctions authority.
“Scheduled Payment” is defined in Section 2.4 of this Loan Agreement.
“Security Documents” refers collectively to the Mortgages and all other Loan Documents that are intended to secure the payment and performance of the Obligations or any portion thereof.
“Subsidiary Guarantor” means each wholly-owned subsidiary of either Borrower or ExchangeRight Income Fund Operating Partnership, LP which owns any Property (including, without limitation, the Closing Date Subsidiary Guarantor) that was purchased with the proceeds of the Loan; provided, however, that once the Property Release Conditions have been satisfied for all such Properties owned by such Subsidiary Guarantor, such subsidiary shall no longer be deemed a Subsidiary Guarantor.
“Third Amendment Date” shall mean December 13, 2021.
“Third Amendment Date Properties” shall mean the Properties listed on Schedule IV attached hereto, acquired or to be acquired by the applicable Subsidiary Guarantor on or after the Third Amendment Date.
“Total Debt” shall mean, as of any date, all Indebtedness of Borrower and its subsidiaries (including, without limitation, the Indebtedness evidenced by each Delayed Draw Term Note issued hereunder) measured on a consolidated basis as of such date.
“Transfer” is defined in Section 6.3 hereof.
(i) references to a Person are, unless the context otherwise requires, also to such Person’s heirs, executors, legal representatives, successors, and assigns, as applicable, (ii) the words “hereof”, “herein”, “hereunder”, and comparable terms refer to the entire Loan Document in which such terms are used and not to any particular article, section, or other subdivision thereof or attachment thereto, (iii) references to any gender include, unless the context otherwise requires, references to all genders, and references to the singular include, unless the context otherwise requires, references to the plural, and vice versa, (iv) the words “shall” and “will” have equal force and effect, (v) references in a Loan Document to “Article,” “Section,” “paragraph” or another subdivision or to an attachment are, unless the context otherwise requires, to an article, section, paragraph, or subdivision of or an attachment to such Loan Document, (vi) all accounting terms not otherwise defined therein have the meanings assigned to them in accordance with generally accepted accounting principles, and (vii) the words “include”, “includes”, and “including” shall be deemed to be followed by the words “without limitation”, whether or not they are in fact followed by such words or words of like import.
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Document and is not intended to indicate that this Loan Agreement or such other Loan Document was executed and delivered on said date by any party hereto.
ARTICLE 2. THE LOAN
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not prejudice the rights of Lender to collect any other amounts required to be paid by Borrower hereunder or under any of the other Loan Documents.
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unpaid interest on the outstanding principal of the Loan amount evidenced by such Delayed Draw Term Note (of which three (3) months is interest only); and
(10) days after the date such payment is due under the terms of this Loan Agreement. In no case will any such late charge be less than $10.00 or more than the maximum amount allowed by applicable law. Collection or acceptance by Lender of such late charge will not constitute a waiver of any rights or remedies of Lender provided in this Loan Agreement or in any other Loan Document. The late charge provided for herein represents a fair and reasonable estimate by Borrower and Lender of a fair average compensation for the loss that might be sustained by Lender due to the failure of Borrower to make timely payments hereunder, the parties recognizing that the damages caused by such extra administrative expenses and loss of the use of funds is impracticable or extremely difficult to ascertain or estimate. Lender may impose a non-sufficient funds fees for any check that is presented for payment that is returned for any reason. In addition, Lender may charge loan documentation fees as may be reasonably
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determined by the Lender; provided, Lender is assessing such documentation fees on other borrowers that have loans outstanding with Lender.
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administrative and general overhead, but not including any out-of-pocket or other expenses for which Borrower has agreed to reimburse Lender pursuant to any other provisions of this Loan Agreement or any of the Loan Documents. The Loan Fee, the Delayed Draw Term Note Fee and Delayed Draw Term Note Six Month Fee shall each be in addition to any other fees or charges payable by Borrower or any other Person under this Loan Agreement or any other Loan Document.
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ARTICLE 3.
OBLIGORS’ REPRESENTATIONS AND WARRANTIES
Borrower hereby represents and warrants to Lender, with knowledge that Lender shall materially rely upon each of the following representations and warranties in entering into this Loan Agreement, as follows:
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enforceability of, or the ability of such Corporate Loan Party to perform, the Obligations under this Loan Agreement and the other Closing Date Loan Documents.
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returns that are required to be filed and has paid, or made adequate provision for the payment of, all taxes that have or may become due pursuant to such returns or to assessments received by such Corporate Loan Party.
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Encumbrances, no building or other improvement not located on any Closing Date Property relies on any part of such Closing Date Property to fulfill any zoning requirements, building code, or other requirement of any Governmental Authority that has jurisdiction over any Closing Date Property for structural support or to furnish to such building or improvement any essential building systems or utilities.
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ARTICLE 4.
OPERATION AND MANAGEMENT OF THE PROPERTIES
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event), or (iv) consent to or pursue any remedies under a Lease except in the event of an emergency. Borrower may (and may permit Subsidiary Guarantors to), without the prior written consent of Lender, make minor modifications or amendments, or give consents, with respect to a Lease so long as such modification, amendment, or consent does not potentially affect the length of the term of the Lease, does not and will not result in the reduction of the tenant's obligations for the payment of rent or any other charges payable by such tenant, does not materially affect any other material obligations of the tenant thereunder (provided that Borrower agrees to provide Lender with prior written notice of the matters described in this sentence, together with a copy of any such written amendment, modification, or consent).
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without the prior written consent of Lender, which consent may not be unreasonably withheld, conditioned, or delayed by Lender.
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(ii) Borrower shall demonstrate to Lender’s satisfaction that the legal proceedings shall conclusively operate to prevent the sale of each Property, or any part thereof, to satisfy such tax, assessment, fee, or charge prior to final determination of such proceedings, (iii) Borrower shall furnish a good and sufficient bond or surety as requested by and satisfactory to Lender, and (iv) Borrower shall have provided a good and sufficient undertaking as might be required or permitted by law to accomplish a stay of such proceedings.
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contest any such lien in good faith by appropriate legal proceedings provided the lien, if required by Lender, is bonded off and removed as an encumbrance upon any Property. Lender has not consented and will not consent to the performance of any work or the furnishing of any materials that might be deemed to create a lien or liens against any Property that is superior to the lien and security interest hereof.
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equal to one hundred percent (100%) of the full replacement cost of each Property, which policies shall insure against physical damage to and loss of occupancy and use of each Property arising out of an accident or breakdown covered thereunder;
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ARTICLE 5.
FINANCIAL COVENANTS
At all times while any Obligations are outstanding, or Lender has any obligation to any Obligor hereunder, Borrower shall faithfully observe and perform the following covenants:
(A) examine, copy and make abstracts from any such books and records and such other information which might be helpful to Lender in evaluating the status of the Obligations as it may reasonably request from time to time, and (B) communicate directly with any of Borrower’s or any Subsidiary Guarantor, officers, employees, agents, accountants, or other financial advisors with respect to the business, financial conditions, and other affairs of Borrower. Borrower shall not change (and shall not permit any Subsidiary Guarantor to change) its methods of accounting without the prior written consent of Lender.
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Change; (iii) the commencement or threat of any condemnation or similar proceedings with respect to any Property or of any proceeding seeking to enjoin the intended use of such Property or any portion thereof;
(iv) the commencement of any proceedings by or against Borrower or any Subsidiary Guarantor under any applicable bankruptcy, reorganization, liquidation, insolvency, or other similar law now or hereafter in effect or of any proceeding in which a receiver, liquidator, trustee, or other similar official is sought to be appointed for it; and (v) the receipt of notice from any Governmental Authority having jurisdiction over Borrower or any Subsidiary Guarantor that (A) any of such party is being placed under regulatory supervision, (B) any license, Permit, charter, membership, or registration material to the conduct of such party’s business or any Property is to be suspended or revoked, (C) the occurrence of any material change in Legal Requirements that applies to any Property and the enforcement thereof, resulting in a material modification to any Property; or (D) Borrower or any Subsidiary Guarantor is to cease and desist any practice, procedure, or policy employed by Borrower, as the case may be, in the conduct of its business.
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Code, and (C) Lender may apply the Account Collateral to the payment of the Obligations, in such order, manner, amounts, times and priority as permitted under this Loan Agreement, and such reserved rights shall be in addition to all other rights and remedies provided to Lender under this Loan Agreement and the other Loan Documents.
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Lender may reasonably request to evidence Lender’s security interest in and to the Excess Cash Flow Account and (ii) pay or reimburse Lender for all costs and expenses incurred by Lender in connection with the Excess Cash Flow Account and Lender’s security interest therein, including, without limitation, reasonable legal fees and expense. The payment of Excess Cash Flow will be in addition to, and not in lieu of, the regular monthly installment of interest and principal payable under the Notes. At such time as Lender determines that the Property has achieved the Minimum Property Debt Service Coverage Ratio as of the end of any subsequent quarter, and provided that no Default or Event of Default then exists, Lender will release is security interest in the Excess Cash Flow Account and return all funds on deposit therein (net of any outstanding fees) to Borrower.
Lender shall test Borrower’s compliance with the Net Worth and Total Debt to Net Worth ratio on an annual basis, commencing with the calendar year ending December 31, 2021.
ARTICLE 6.
ADDITIONAL PROHIBITIONS
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(ii) any arrangement, directly or indirectly, whereby any Corporate Loan Party shall sell or transfer the Collateral in order that then or thereafter any Corporate Loan Party or any Affiliate shall lease-back such Collateral, (iii) the conversion of any Property (or any portion thereof) into a condominium form of ownership, (iv) an agreement by any Corporate Loan Party leasing all or a substantial part of any Property for other than actual occupancy by a tenant thereunder, or a sale, assignment, or other transfer of, or the grant of a security interest in, such Corporate Loan Party’s right, title and interest in and to the Leases or any rents therefrom, (v) any divestiture of any Corporate Loan Parties title to the Collateral or any interest therein in any manner or way, whether voluntary or involuntary, or any merger, consolidation, dissolution or syndication affecting any Corporate Loan Party, (vi) if any Corporate Loan Party is a corporation, the voluntary or involuntary sale, conveyance, or transfer of any of such corporation’s stock or the creation or issuance of new stock in one or a series of transactions by which an aggregate of more than ten percent (10%) of such corporation’s stock shall be vested in a party or parties who are not now stockholders of such corporation or any change in the control of such corporation directly or indirectly; (vii) if any Corporate Loan Party is a limited or general partnership, joint venture, or limited liability company, the change, removal, resignation, or addition of a general partner, managing partner, managing member, or manager, or the transfer of any partnership or membership interest of any general partner, managing partner, managing member, or manager, or the transfer of any interest of any partner, joint venturer or member (or the transfer of any interest of any person directly or indirectly controlling such partner, joint venturer, or member by operation of law or otherwise); and (vi) if any Corporate Loan Party is a business trust, the change, removal, resignation, or addition of a trustee, or the voluntary or involuntary sale, conveyance, or transfer of any beneficial interest. Lender shall not be required to demonstrate any actual impairment of its security or any increased risk of default hereunder in order to declare an Event of Default upon the occurrence of a Prohibited Transfer without Lender’s prior written consent or as otherwise expressly permitted herein. This provision shall apply to every Prohibited Transfer regardless of whether voluntary or not, or whether or not Lender has consented to any previous Prohibited Transfer, except for those expressly allowed herein. Any Prohibited Transfer made in contravention of this Section shall be null and void and of no force and effect.
such Transfer occurs;
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ARTICLE 7.
EVENTS OF DEFAULT AND REMEDIES
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available to Lender, or the validity or enforceability of this Loan Agreement or any other Loan Document, or the validity or priority of the security title, lien, and security interest created hereunder or thereunder shall be contested by any Obligor seeking to establish the invalidity or unenforceability hereof or thereof, or any Obligor shall deny that it has any further liability or obligation hereunder or thereunder;
in Article 6 above;
Change;
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ARTICLE 8.
ADDITIONAL PROVISIONS
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portion of Lender’s assets and business. The indemnity obligation of Borrower under this Section and any other provision of this Loan Agreement shall survive the payment in full of the Obligations.
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relationship other than the Loan that Lender might have with any party connected with the Loan. In the event of any such sale, assignment, or participation, Lender and the parties to such transaction shall share in the rights and obligations of Lender as set forth in the Loan Documents only as and to the extent they agree among themselves. In connection with any such sale, assignment, or participation, Borrower further agrees that the Loan Documents shall be sufficient evidence of the obligations of Borrower to each purchaser, assignee, or participant, and upon written request by Lender, Borrower shall enter into such amendments or modifications to the Loan Documents as may be reasonably required in order to evidence any such sale, assignment, or participation. Borrower agrees to cooperate with Lender with respect to any such sale, assignment, or participation, including, without limitation, furnishing to Lender such information as Lender might reasonably request regarding any Property, Borrower, Guarantor, and any direct or indirect partner or member of Borrower and Guarantor. The indemnity obligations of Borrower under the Loan Documents shall also apply with respect to any purchaser, assignee, or participant. Notwithstanding the foregoing or anything to the contrary contained herein, provided that no Event of Default then exists, in the event that any such transfer, assignment, sale, or participation occurs, Lender shall retain primary responsibility for the servicing and administration of the Loan.
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increased cost, reduction in return and/or revenue, which amount shall, in the absence of manifest error, be conclusive and binding upon Borrower.
ARTICLE 9.
DOCUMENT PROTOCOLS
This Loan Agreement and each of the other Loan Documents shall be governed by the following protocols (the “Document Protocols”), unless any Loan Document expressly states that the Document Protocols will not apply to such Loan Document in whole or in part:
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transmission, when sent by telecopy or other similar facsimile transmission (with such telecopy or facsimile promptly confirmed by delivery of a copy by personal delivery, United States Mail, or overnight courier service as otherwise provided in this Section). Any party may change the address to which any notice is to be delivered to any other address within the United States of America by furnishing written notice of such change at least fifteen (15) days prior to the effective date of such change to the other parties in the manner set forth above, but no such notice of change shall be effective unless and until received by such other parties. Rejection or refusal to accept, or inability to deliver because of changed address or because no notice of changed address was given, shall be deemed to be receipt of any such notice. Any notice to an entity shall be deemed to be given on the date specified in this Section without regard to when such notice is delivered by the entity to the individual to whose attention it is directed and without regard to the fact that proper delivery may be refused by someone other than the individual to whose attention it is directed. If a notice is received by an entity, the fact that the individual to whose attention it is directed is no longer at such address or associated with such entity will not affect the effectiveness of such notice. Notices may be given on behalf of any party by such party’s attorneys.
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constitute a waiver of Borrower’s or any Guarantor’s default in making such payments and will not obligate Lender to make any further payments.
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shall not be deemed to waive or cure such default under such Loan Document; and every power and remedy given by such Loan Document to Lender may be exercised from time to time as often as may be deemed expedient by Lender. Borrower and Guarantor hereby waive any right to require Lender at any time to pursue any remedy in Lender’s power whatsoever.
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such consent, approval, acceptance or satisfaction shall be required under such Loan Document, subject to the applicable standard of discretion. Notwithstanding the foregoing, if such Loan Document expressly states that Lender will use its “reasonable” discretion or judgment (or words and phrases of similar import) in making any particular decision to approve or disapprove or to decide that any particular arrangements or terms are satisfactory or not satisfactory to Lender, then in such event (and in only such event) Lender shall exercise the same degree of discretion that a prudent commercial real estate lender would exercise in the same or similar circumstances.
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“reasonable attorney’s fees” are not, and shall not be, statutory attorneys’ fees under the Official Code of Georgia (“O.C.G.A.”), (ii) if under any circumstances Borrower or Guarantor is required under such Loan Document to pay any or all of Lender’s attorneys’ fees and expenses, Borrower or Guarantor, as the case may be, shall be responsible only for the actual attorneys’ fees and out-of-pocket expenses actually reasonably incurred by Lender at customary hourly rates for the work done, and (iii) neither Borrower nor Lender shall be liable under any circumstances for additional attorneys’ fees or expenses under O.C.G.A.
§ 13-1-11.
[Signatures begin on the next page]
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IN WITNESS WHEREOF, Borrower and Lender have executed this Loan Agreement as of the date first above written.
BORROWER:
EXCHANGERIGHT REAL ESTATE, LLC
a California limited liability company
By: Name: David Fisher
Title: Managing Member (SEAL)
Address for notices:
ExchangeRight Real Estate, LLC
1055 E. Colorado Boulevard, Suite 310
Pasadena, California 91106 Attention: David Fisher Facsimile No.: 877.711.4047
with copy to (which alone shall not constitute notice):
Belice, Inc., a law corporation 8008 Girard Avenue, Suite 310 La Jolla, CA 92037
Attention: Jason Belice, Esq. jason@beliceinc.com
[signatures continue on following page]
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LENDER:
AMERIS BANK,
a Georgia banking corporation
By: Name: Charles Markley
Title: Senior Vice President (SEAL)
Address for notices:
Ameris Bank
3490 Piedmont Road, NE Suite 750
Atlanta, Georgia 30305 Attention: Charles Markley chuck.markley@amerisbank.com
with copy to (which alone shall not constitute notice):
Arnall Golden Gregory LLP 171 17th Street NW, Suite 2100
Atlanta, Georgia 30363-1031 Attn: Steven A. Pepper, Esq.
SCHEDULE I
LIST OF ACQUISITION DATE LOAN DOCUMENTS
SCHEDULE II
LIST OF CLOSING DATE LOAN DOCUMENTS
SCHEDULE III CLOSING DATE PROPERTIES
Tenant Name | Property Address |
Walgreens | 201 Wyoming Avenue Kingston, PA 18704 |
Giant Eagle | 14650 Snow Road Brook Park, OH 44142 |
SCHEDULE IV
Tenant Name | Property Address | Delayed Draw Term Loan Amount |
Sherwin Williams | 711 West Wabash Avenue Effingham, IL 62401 | $29,100,000 |
CVS | 1405 Oak Street Kenova, WV 25530 | $3,646,000 |
CVS | 1100 Veterans Memorial Drive Abbeville, LA 70510 | $3,492,000 |
Price Chopper | 72 Pullman Street Worcester, MA 01606 | $20,034,000 |
EXHIBIT A
[FORM OF] COMPLIANCE CERTIFICATE
Reference is made to that certain on Loan Agreement dated as of May 19, 2021, between EXCHANGERIGHT REAL ESTATE, LLC, a California limited liability company (“Borrower”), and AMERIS BANK, a Georgia banking corporation (“Lender”). Any capitalized term used, but not otherwise defined, in this Compliance Certificate has the meaning assigned to that term in the Loan Agreement.
The undersigned hereby certifies that, as of [quarter ending ], each Property has achieved a Property Debt Service Coverage Ratio as set forth on Schedule A-1 attached hereto.
The undersigned hereby certifies that, as of [quarter ending ], Borrower has achieved a Consolidated Debt Service Coverage Ratio of : 1.00.
Attached hereto is a true and correct calculation of the Property Debt Service Coverage Ratio for each Property, a true and correct calculation of the Consolidated Debt Service Coverage Ratio (and each component thereof), along with supporting documentation and information. This calculation was done in accordance with the provisions of the Loan Agreement and is certified to be accurate.
The undersigned hereby certifies that, as of the calendar year ending [ ],
Attached hereto is a true and correct calculation of the Net Worth and Total Debt to Net Worth calculation (and each component thereof), along with supporting documentation and information. This calculation was one in accordance with the provisions of the Guaranty and is certified to be accurate.
EXCHANGERIGHT REAL ESTATE, LLC
a California limited liability company
By: Name: Title:
SCHEDULE A-1
PROPERTY DEBT SERVICE COVERAGE RATIOS
EXHIBIT B
[FORM OF] DELAYED DRAW TERM NOTE
$[ ] [ ]
FOR VALUE RECEIVED, the undersigned, EXCHANGERIGHT REAL ESTATE, LLC, a
California limited liability company (“Borrower”), hereby promises to pay to AMERIS BANK, a Georgia banking corporation (the “Lender”), or its assigns, at the office of Ameris Bank at 3490 Piedmont Road, NE, Suite 750, Atlanta, Georgia 30305 (i) on the Delayed Draw Term Note Maturity Date (as defined in the Loan Agreement, dated as of May 19, 2021 (as the same may be amended, restated, supplemented or otherwise modified from time to time, the “Loan Agreement”), by and among Borrower and Lender, the aggregate unpaid principal amount of this Delayed Draw Term Note, and (ii) on each date specified in the Loan Agreement prior to this Delayed Draw Term Note Maturity Date, the principal amount of the Delayed Draw Term Loan evidenced by this Delayed Draw Term Note and made to Borrower by Lender pursuant to the Loan Agreement and payable to Lender on such date as specified therein, in each case in lawful money of the United States of America in immediately available funds, and to pay interest from the date hereof on the principal amount hereof from time to time outstanding, in like funds, at said office, at the rate or rates per annum and payable on such dates as provided in the Loan Agreement. In addition, should legal action or an attorney-at-law be utilized to collect any amount due hereunder, Borrower further promises to pay all costs of collection, including the reasonable attorneys’ fees of the Lender actually incurred.
Upon the occurrence and during the continuance of an Event of Default, Borrower promises to pay interest, on demand, at a rate or rates provided in the Loan Agreement.
All borrowings evidenced by this Delayed Draw Term Note and all payments and prepayments of the principal hereof and the date thereof shall be endorsed by the holder hereof on the schedule attached hereto and made a part hereof or on a continuation thereof which shall be attached hereto and made a part hereof, or otherwise recorded by such holder in its internal records; provided, that the failure of the holder hereof to make such a notation or any error in such notation shall not affect the obligations of Borrower to make the payments of principal and interest in accordance with the terms of this Delayed Draw Term Note and the Loan Agreement.
This Delayed Draw Term Note is issued in connection with, and is entitled to the benefits of, and is otherwise subject to the terms of, the Loan Agreement which, among other things, contains provisions for the acceleration of the maturity hereof upon the happening of certain events, for prepayment of the principal hereof prior to the maturity hereof and for the amendment or waiver of certain provisions of the Loan Agreement, all upon the terms and conditions therein specified.
This Delayed Draw Term Note is a [ ], as defined in the Loan Agreement.1
1 [70% Loan To Cost Delayed Draw Term Note] [70% - 75% Loan To Cost Delayed Draw Term Note] [80% Loan To Cost Delayed Draw Term Note]
THIS DELAYED DRAW TERM NOTE HAS BEEN EXECUTED UNDER SEAL AND SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF GEORGIA AND ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.
BORROWER:
EXCHANGERIGHT REAL ESTATE, LLC
a California limited liability company
By: Name: David Fisher
Title: Managing Member
(SEAL)
EXHIBIT C
[FORM OF] REIMBURSEMENT AND CONTRIBUTION AGREEMENT
See attached.