EXHIBIT 10.26
AMENDMENT NO. 1 TO LOAN AGREEMENT
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THIS AMENDMENT NO. 1 dated as of January 30, 1998 ("Amendment No. 1 to the
Loan Agreement"), to the Loan Agreement dated as of October 26, 1997 (the "Loan
Agreement"), by and among Capital Automotive REIT, a Maryland real estate
investment trust (the "Trust"), Capital Automotive L.P., a Delaware limited
partnership (the "Operating Partnership") (the "Trust and the Operating
Partnership" on a joint and several basis are hereinafter collectively referred
to as the "Borrower") and Friedman, Billings, Xxxxxx Group, Inc., a Delaware
corporation ("FBR"), recites and provides as follows:
W I T N E S S E T H
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WHEREAS, pursuant to the Loan Agreement FBR has agreed to make a revolving
loan (the "Loan") to the Trust for the purposes described in the Loan Agreement,
such Loan to be evidenced by a promissory note payable to the order of FBR as
provided in the Loan Agreement (the "Note"); and
WHEREAS, the Trust and the Operating Partnership each desire that the
Operating Partnership becomes a "Borrower" pursuant to Amendment No. 1 to the
Loan Agreement and the amended and restated Note of even date herewith; and
WHEREAS, FBR desires that the Operating Partnership become a "Borrower"
pursuant to Amendment No. 1 to the Loan Agreement and the amended and restated
Note of even date herewith; and
WHEREAS, the Borrower desires to increase the size of the Loan and FBR has
agreed to increase the size of the Loan to the aggregate amount of Two Million
Five Hundred Twenty-Five Thousand Dollars ($2,525,000).
NOW, THEREFORE, in consideration of the promises and of the mutual
covenants herein contained and for other good and valuable consideration, the
receipt of which is hereby acknowledged, the parties hereto agree as follows:
1. Preamble. The Borrower. The defined term "Borrower" throughout the Loan
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Agreement is hereby amended to mean "the Trust and the Operating Partnership, on
a joint and several basis." The singular shall include the plural.
2. Section 1(a). Loan Funding. Subparagraph (a) of Section 1 of the Loan
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Agreement be and hereby is amended in its entirety to read:
"(a) Subject to the terms and upon the conditions set forth in
this Agreement, Lender agrees to establish a revolving
facility (the "Loan") in favor of Borrower on a full
recourse basis in the
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principal amount of up to Two Million Five Hundred
Twenty-Five Thousand Dollars ($2,525,000) (the "Principal
Sum"), or so much thereof as may be advanced or readvanced
to or for the account of any Borrower pursuant to the terms
and conditions of the Agreement (such foregoing amounts up
to the Principal Sum, shall be hereinafter referred to as
the "Loan Amount"), except that the outstanding principal
balance hereunder shall never exceed the Principal Sum. The
Principal Sum, together with interest thereon and all other
obligations hereunder, shall be secured as provided in the
Security Agreement between the parties dated as of the date
hereof (the "Security Agreement").
3. The Loan Agreement. Except as amended hereby, the Loan Agreement shall
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continue in full force and effect and shall apply with equal force and effect to
the Operating Partnership until termination or expiration in accordance with the
terms thereof.
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IN WITNESS WHEREOF, the Trust, the Operating Partnership and FBR have
caused this Amendment No. 1 to the Loan Agreement to be executed by their
respective duly authorized officer as of the date first written above.
CAPITAL AUTOMOTIVE REIT
By:
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Title:
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CAPITAL AUTOMOTIVE L.P.
By: Capital Automotive REIT, as General Partner
By:
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Title:
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FRIEDMAN, BILLINGS, XXXXXX GROUP, INC.
By:
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Title:
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EXHIBIT 10.26
AMENDED AND RESTATED PROMISSORY NOTE
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$2,525,000 Arlington, Virginia
January 30, 1998
FOR VALUE RECEIVED, Capital Automotive REIT, a Maryland real estate
investment trust (the "Trust") and Capital Automotive L.P., a Delaware Limited
Partnership (the "Operating Partnership") (the Trust and the Operating
Partnership shall be hereinafter collectively referred to as the "Maker"),
jointly and severally promises to pay to the order of Friedman, Billings, Xxxxxx
Group, Inc., a Delaware corporation (which together with any successor, assignee
or endorsee shall be hereinafter collectively referred to as the "Holder"),
without offset and in immediately available funds, at 0000 00xx Xxxxxx Xxxxx,
Potomac Tower, 10th Floor, Xxxxxxxxx, Xxxxxxxx 00000, or at such other place as
the Holder may designate in writing, Two Million Five Hundred Twenty-Five
Thousand and No/100 Dollars ($2,525,000) or so much thereof as shall be advanced
to Maker together with interest on the outstanding principal balance thereof at
the rate of 10% per annum, calculated based on the actual number of days elapsed
and a 360-day year.
So long as Maker is not in default under the terms of Amendment No. 1 dated
even date herewith to the Loan Agreement dated as of October 26, 1997 (the "Loan
Agreement"), among Holder and Maker, unless sooner paid, any unpaid principal
and accrued interest on this Note shall be due and payable in full upon demand
(subject to Holder providing 48 hours prior written notice thereof to Maker) or
the closing of the Company's Initial Public Offering. All payments received by
the Holder shall be applied first to accrued but unpaid interest and then to
principal.
This Note may be prepaid in whole or in part at any time without penalty.
Upon the occurrence of an Event of Default (as defined in the Loan
Agreement), the entire unpaid principal balance hereof, all accrued interest
hereon and any other amounts payable hereunder shall become immediately due and
payable without notice or demand.
Maker hereby waives presentment, demand, protest, notice of protest and
notice of dishonor and all other exemptions to the extent permitted by
applicable law. To the extent permitted by applicable law, Maker further waives
all rights and benefits of any statute of limitations, moratorium,
reinstatement, forbearance, valuation, stay, extension, redemption, appraisement
and exemption now provided or which may hereafter be provided by law, both as to
them and all of their property, real and personal, against the enforcement and
collection of the indebtedness evidenced hereby. Acceptance by the Holder of all
or any portion of any sum payable hereunder whether before, on or after the due
date of such payment shall not be a waiver of the Holder's right either to
require prompt payment when due of all other sums payable hereunder or to
exercise any of the Holder's rights, powers or remedies hereunder. A waiver of
any right on one occasion shall not be construed as a waiver of the Holder's
right to insist
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thereafter upon strict compliance with the terms hereof without previous notice
of such intention being given to Maker, and no exercise of any right by the
Holder shall constitute or be deemed to constitute an election of remedies by
the Holder precluding the subsequent exercise by the Holder of any or all of the
rights, powers and remedies available to it hereunder or at law or in equity.
Maker consents to any and all renewals and extensions in the time of
payment hereof without in any way affecting the liability of Maker or any person
liable or to become liable with respect to any indebtedness evidenced hereby. No
extension of the time for the payment of this Note or any installment due
hereunder made by agreement with any person now or hereafter liable for the
payment of this Note shall operate to release, discharge, modify, change or
affect the liability of Maker or any other person liable under this Note, either
in whole or in part, under the Holder agrees otherwise in writing.
Maker shall pay all costs, fees and all expenses, including, without
limitation, any and all court or reasonable collection costs and reasonable
attorney's fees whether suit be brought or not, incurred in collecting this Note
or in preserving or disposing of any collateral granted as security for the
payment of this Note, or in defending any claim arising out of the execution of
this Note or obligations which it evidences, or otherwise involving the
employment by the Holder of attorneys with respect to this Note and the
obligations it evidences.
Any notice to Maker or the Holder shall be conclusively deemed to have been
received by either party and be effective on the day on which delivered
personally to such party at the address set forth below (or at such other
address as such party shall specify to the other party in writing) or if sent by
registered or certified United States mail, postage prepaid, on the third
business day after the day on which mailed, addressed to such party at such
address: (i) if to the Holder, at 0000 00xx Xxxxxx North, Potomac Tower, 00xx
Xxxxx, Xxxxxxxxx, Xxxxxxxx 00000-0000, and (ii) if to the Company, at 0000 Xxxxx
Xxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxx 00000.
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IN WITNESS WHEREOF, Maker has caused this Note to be duly executed as of
the day and year first above written.
CAPITAL AUTOMOTIVE REIT
By:
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Title:
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CAPITAL AUTOMOTIVE L.P.
By: Capital Automotive REIT, as General Partner
By:
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Title:
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