Exhibit 10
SECOND AMENDMENT TO
AMENDED AND RESTATED BUSINESS LOAN AGREEMENT
THIS SECOND AMENDMENT TO AMENDED AND RESTATED BUSINESS LOAN
AGREEMENT ("Second Amendment"), made October 19, 1998, by and between AGREE
LIMITED PARTNERSHIP, a Delaware limited partnership, whose address is 00000
Xxxxxxxxxxxx Xxxxxxx, Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000 (the "Borrower") and
MICHIGAN NATIONAL BANK, a national banking association, whose address is
27777 Inkster Road (10-02), Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000-0000 (the
"Bank"). Capitalized terms used but not defined in this Second Amendment
shall have the meaning assigned to such terms in the Restated Agreement (as
defined below).
RECITALS
WHEREAS, Borrower and Bank entered into an Amended and Restated
Business Loan Agreement dated September 30, 1996, but effective September 21,
1996, as amended by First Amendment thereto ("Restated Agreement"), whereby
Bank agreed to make a $5,000,000 Line of Credit Loan ("Loan") available to
Borrower;
WHEREAS, the Loan has matured; and
WHEREAS, Borrower has requested Bank to extend the maturity date
of the Loan and modify and amend certain terms of the Restated Loan Agreement
to evidence the extension of the Loan and Bank has agreed to do so upon the
terms and condition of this Second Amendment.
AGREEMENT
NOW, THEREFORE, in consideration of and in reliance upon the
foregoing recitals of fact and the agreements among the parties set forth in
this Agreement, the Restated Agreement is hereby amended as follows:
A. AMENDMENT OF RESTATED AGREEMENT.
1. Amendment of Section I. The INTEREST RATE, MATURITY DATE AND
LOAN DATE set forth in Section I of the Restated Agreement are changed to
read "MNB Prime less 50b.p. (.5%) or 175 b.p. (1.75%) in excess of 1-month
LIBOR", "October 19, 1999" and "October 19, 1998", respectively.
2. Amendment of Section IV.A. Section IV.A of the Restated
Agreement is restated in its entirety to read as follows:
"Total Debt. Permit the Total Interest Bearing Funded
Debt, including the Indebtedness, to exceed seventy (70%) percent
of the Total Market Capital."
3. Amendment of Section XI. Section XI of the Restated Agreement
is amended by replacing the definition of Total Interest Bearing Funded Debt
with the following:
"Total Interest Bearing Funded Debt" shall mean, as of
any date, the outstanding principal amount of interest bearing
indebtedness for borrowed money of Borrower and Guarantor."
4. Amendment of Section VII.A(1) of Addendum. Section VII.A(1) of
the Addendum to Restated Agreement is restated in its entirety to read as
follows:
"For a Prime Advance at a rate equal to the Prime Rate
less One-Half (.5%) Percent."
5. Amendment of Section VII.A.(2) of Addendum. Section VII.A.(1)
of the Addendum to the Restated Agreement is restated in its entirety to read
as follows:
"For a LIBOR Advance at a rate equal to the LIBOR
Interest Rate plus One and Three-Quarters (1.75%) Percent."
6. Amendment of Section VII.C.(2) of Addendum. Section VII.C.(2)
of the Addendum to the Restated Agreement is restated in its entirety to read
as follows:
"For each LIBOR Advance at a rate equal to the LIBOR
Interest Rate plus Three and Three-Quarters (3.75%) Percent from
the time of default in payment of principal until the end of the
then current Interest Period therefore, and thereafter at a rate
equal to the Prime Rate plus One and One-Half (1.50%) Percent."
B. REPRESENTATIONS AND WARRANTIES.
Borrower represents, warrants, covenants and agrees that as of the
date hereof, after giving effect to the consummation of the transactions
contemplated by this Second Amendment:
1. Authority. Each of Borrower and Guarantor, as applicable, has
full power, authority and legal right to enter into the Second Amendment and
the Note (as defined below). The execution, delivery and performance by
Borrower and Guarantor of the applicable Second Amendment documents:
(a) have been duly authorized by all necessary
partnership or corporate action, as applicable, of Borrower and
Guarantor;
(b) do not and will not, by lapse of time, the giving of
notice or otherwise, contravene the terms of Borrower's or
Guarantor's respective
partnership agreement or certificate, articles of incorporation or
bylaws or of any indenture, agreement or undertaking to which
Borrower or Guarantor is a party or by which Borrower or Guarantor
is or any of their respective property are bound;
(c) do not and will not require any governmental
consent, registration or approval;
(d) do not and will not, by lapse of time, the giving of
notice or otherwise, contravene any material contractual or
governmental restriction to which Borrower or Guarantor, or any of
their respective property may be subject; and
(e) do not and will not, except as contemplated herein,
result in the imposition of any lien, charge, security interest or
encumbrance upon any property of Borrower or Guarantor under any
existing indenture, mortgage, deed of trust, loan or credit
agreement or other material agreement or instrument to which
Borrower or Guarantor is a party or by which Borrower or Guarantor
or any of their respective property may be bound or affected.
2. Binding Effect. Each of the Second Amendment documents is the
legal, valid and binding obligation of Borrower and Guarantor, as
appropriate, and is enforceable against Borrower and Guarantor, as
appropriate, in accordance with its terms, except as such enforceability may
be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting the enforcement of creditors' rights generally and
by equitable principles (whether or not any action to enforce such document
is brought at law or in equity).
3. Agreement Representations and Warranties. The warranties and
representations of Borrower contained in the Restated Agreement and the
Related Documents are true, correct and complete on and as of the Effective
Date and the date hereof, to the same extent as though made on and as of that
date, and taking into account any revised Exhibits attached to this Second
Amendment.
4. Default. Upon closing of the Second Amendment transaction, no
Event of Default or Default has occurred and is continuing.
C. CONDITIONS TO CLOSING.
In addition to those conditions set forth elsewhere in the
Agreement, the obligations of Bank under this Second Amendment are
conditioned upon (a) the fulfillment, in a manner satisfactory to Bank on or
before the date hereof, of each of the following terms and conditions or (b)
the delivery on or before the date hereof, duly executed, in form and
substance satisfactory to Bank (and their counsel) of the following
documents, as the case may be:
1. Second Amendment Documents.
(a) Second Amendment. Borrower and Guarantor shall have
executed and delivered this Second Amendment to Bank.
(b) Fourth Amended and Restated Note. Borrower shall
have executed and delivered the Fourth Amended and Restated Note ("Note").
(c) Other Agreements. Borrower shall have executed and
delivered to Bank such other agreements and documents in connection with the
Loan as Bank may request in form and substance satisfactory to Bank and its
counsel.
2. Organizational Documents. Bank shall have received (i) with
respect to Guarantor, the certificate of incorporation of Guarantor, as
amended, modified or supplemented to the date hereof, certified to be true,
correct and complete by the appropriate Secretary of State, together with a
good standing certificate from such Secretary of State, and (ii) with respect
to Borrower, the agreement of limited partnership of Borrower, as amended,
modified or supplemented to the date hereof, certified to be true, correct
and complete by a general partner of Borrower, together with a copy of the
certificate of limited partnership of Borrower, as amended, modified or
supplemented to the date hereof, certified to be true, correct and complete
by the appropriate Secretary of State.
3. Certified Resolutions. Bank shall have received a certificate
of the secretary or assistant secretary of Guarantor and dated the date
hereof, certifying (i) the names and true signatures of the incumbent
officers of Guarantor authorized to sign the applicable Second Amendment
documents and (ii) the resolutions of Guarantor's board of directors
approving and authorizing the execution, delivery and performance of all
Second Amendment documents executed by Guarantor.
4. Additional Matters. Bank shall have received such other
certificates, opinions, documents and instruments relating to the Second
Amendment transaction as may have been reasonably requested by Bank, and all
corporate and other proceedings and all other documents and all legal matters
in connection with the Second Amendment transaction shall be satisfactory in
form and substance to Bank.
D. AMENDMENT AND AFFIRMATION OF LOAN DOCUMENTS.
1. Affirmation of Loan Documents. Borrower and Guarantor
acknowledge and affirm that (i) the Restated Agreement, as amended by the
Second Amendment, the Mortgages, the Assignments and the Guaranty are
enforceable against the Borrower and Guarantor, as applicable, and remain in
full force and effect and shall be unamended, unchanged and unmodified,
except as specifically set forth in the Second Amendment; and (ii) the
Collateral and the Guaranty shall continue to secure and/or guaranty the
repayment of the Obligations, whether or not the Obligations were
contemplated by
Borrower, Guarantor or Bank at the time of the execution of the Restated
Agreement and the Related Documents, as amended hereby.
E. MISCELLANEOUS.
1. Section Titles. The section titles contained in this Second
Amendment shall be without substantive meaning or content of any kind
whatsoever and are not a part of the agreement between the parties.
2. Parties. Whenever in this Second Amendment reference is made to
any of the parties hereto, such reference shall be deemed to include,
wherever applicable, a reference to the successors and assigns of the
Borrower, Guarantor and Bank.
3. References. Any reference to the Restated Agreement contained
in any notice, request, certificate, or other document executed concurrently
with or after the execution and delivery of this Second Amendment shall be
deemed to include this Second Amendment unless the context shall otherwise
require.
4. Continued Effectiveness. Notwithstanding anything contained
herein, the terms of this Second Amendment are not intended to and do not
serve to effect a novation as to the Restated Agreement. The parties hereto
expressly do not intend to extinguish the Restated Agreement; instead, it is
the express intention of the parties hereto to reaffirm Borrower's
Obligations created under the Restated Agreement, as amended by this Second
Amendment.
5. Counterparts. This Second Amendment may be executed in any
number of counterparts and by the different parties hereto on separate
counterparts, each of which when so executed and delivered shall be an
original, but all of which shall together constitute one and the same
instrument.
6. Release of Claims; Limitation of Liability. In consideration of
Bank entering into this Second Amendment, Borrower and Guarantor do each
hereby release and discharge Bank of and from any and all claims, harm,
injury, and damage of any and every kind, known or unknown, legal or
equitable, which Borrower or Guarantor have against Bank through the date of
this Second Amendment. Borrower and Guarantor confirm to Bank that they have
reviewed the effect of this release with competent legal counsel of their
choice, or have been afforded the opportunity to do so, prior to execution of
this Second Amendment and each acknowledge and agree that Bank is relying
upon this release in entering into this Second Amendment. No claim may be
made by Borrower, Guarantor, or any other Person against Bank or the
affiliates, directors, officers, employees, attorneys or Bank of any of such
Persons for any special, indirect, consequential or punitive damages in
respect of any claim for breach of contract or any other theory of liability
arising out of or related to the transactions contemplated by the Agreement
or any other transactions, or any act, omission or event occurring in
connection therewith; and Borrower and Guarantor
hereby waive, release and agree not to xxx upon any claim for any such
damages, whether or not accrued and whether or not known or suspected to
exist in its favor.
7. Entire Agreement. This Second Amendment, the exhibits attached
hereto, and the other Second Amendment documents represent the entire
agreement between the parties hereto relating to the Second Amendment and may
not be altered or modified in any respect, except upon the execution by the
parties hereto of a written document or instrument so providing.
IN WITNESS WHEREOF, this Second Amendment has been duly executed
as of the day and year first above written.
AGREE LIMITED PARTNERSHIP,
a Delaware limited partnership
By: AGREE REALTY CORPORATION,
its sole general partner, a Maryland
corporation
By: /s/ Xxxxxxx Agree
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Name: Xxxxxxx Agree
Title: President
MICHIGAN NATIONAL BANK,
a national banking association
By:
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Name: Xxxxxx X. Xxxxxx
Title: Vice President
AGREEMENT OF GUARANTOR
By executing this Second Amendment the undersigned "Guarantor"
agrees that the Indebtedness of Borrower is and, notwithstanding this Second
Amendment, will continue to be guaranteed to Bank in accordance with the
terms of the Amended and Restated Guaranty made September 30, 1996
("Guaranty") and executed and delivered by Guarantor to Bank, without limit.
In addition, Guarantor: (1) acknowledges and agrees that the Guarantor has
completely read and understands this Second Amendment; (2) consents to all of
the provisions of this Second Amendment relating to Borrower; (3)
acknowledges and agrees that the Guaranty continues in full force and effect;
(4) acknowledges receipt of good and lawful consideration for execution of
the Guaranty and this Second Amendment; (5) agrees promptly to furnish such
Financial Statements to Bank concerning the Guarantor as Bank shall
reasonably request; (6) agrees to all of those portions of this Second
Amendment which apply to Guarantor; (7) acknowledges and agrees that this
Second Amendment has
been freely executed without duress and after an opportunity was provided to
Guarantor for review of this Second Amendment by competent legal counsel of
Guarantor's choice; and (8) acknowledges that the Bank has provided Guarantor
with a copy of this Second Amendment and such other Related Documents as
Guarantor has requested.
GUARANTOR:
AGREE REALTY CORPORATION,
a Maryland corporation
By: /s/ Xxxxxxx X. Agree
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Xxxxxxx X. Agree
Its: President