FIRST AMENDMENT TO
AMENDED AND RESTATED BUSINESS LOAN AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED BUSINESS LOAN AGREEMENT
("First Amendment"), made October 1, 1997, but effective September 21, 1997
("Effective Date"), 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 First 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 ("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 First 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 or 200 b.p. (2.00%) in excess of 1-month LIBOR", "September 21,
1998" and "September 21, 1997", respectively.
2. Amendment of Section III.P. Section III.P. is restated in its
entirety to read as follows:
"P. Borrower's Operations. Operations of Borrower shall be
limited to the acquisition, ownership and management of retail
shopping centers and related business activities."
3. Amendment of Section IX. Section IX of the Restated Agreement is
amended by adding the following definition to Section IX:
"Adjusted Net Worth" should mean the sum of (i) total
stockholder's equity of Borrower and Guarantor on a consolidated
basis determined in accordance with GAAP as of the end of each
fiscal quarter of Borrower and Guarantor, and (ii) the percentage of
the cumulative amount of quarterly depreciation and amortization
expenses of Borrower and Guarantor equal to the ownership percentage
of Guarantor in Borrower, beginning with the quarter ended September
30, 1995.
4. Amendment of Section VII.A.(2) of Addendum. Section VII.A.(2) 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 Two (2.00%) Percent.
5. 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 Four (4.00%) 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 Two (2.00%) Percent.
6. Amendment of Section III.A.2. Section III.A.2. is restated in its
entirety to read as follows:
"Maintain an Adjusted Net Worth of not less than
$23,092,200.00 plus 90% of the cash proceeds of any equity offering
of Agree Realty Corporation, net of underwriting discounts and
commissions and other reasonable costs associated therewith."
7. Revised Exhibit B. Exhibit B to the Restated Agreement is
restated in its entirety to read as set forth in Revised Exhibit B attached
hereto.
B. REPRESENTATIONS AND WARRANTIES.
Borrower represents, warrants, covenants and agrees that as of the
Effective Date and the date hereof, after giving effect to the consummation
of the transactions contemplated by this First Amendment:
1. Authority. Each of Borrower and Guarantor, as applicable, has
full power, authority and legal right to enter into the First Amendment and
the Note (as defined
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below). The execution, delivery and performance by Borrower and Guarantor of
the applicable First 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 First 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 First
Amendment.
4. Default. Upon closing of the First 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 First 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. First Amendment Documents.
(a) First Amendment. Borrower and Guarantor shall have executed and
delivery this First Amendment to Bank.
(b) Third Amended and Restated Note. Borrower shall have executed and
delivered the Third 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 First Amendment documents and
(ii) the resolutions of Guarantor's board of directors approving and
authorizing the execution, delivery and performance of all First Amendment
documents executed by Guarantor.
4. Additional Matters. Bank shall have received such other
certificates, opinions, documents and instruments relating to the First
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 First Amendment transaction shall be satisfactory in
form and substance to Bank.
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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 First
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 First 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 First
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 First 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 First Amendment shall be
deemed to include this First Amendment unless the context shall otherwise
require.
4. Continued Effectiveness. Notwithstanding anything contained
herein, the terms of this First 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 First
Amendment.
5. Counterparts. This First 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 LiabilityIn consideration of
Bank entering into this First 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 First
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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 First Amendment and each acknowledge and agree that Bank is relying upon
this release in entering into this First 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 First Amendment, the exhibits attached
hereto, and the other First Amendment documents represent the entire
agreement between the parties hereto relating to the First 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 First 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
--------------------
Name: Xxxxxxx Agree
Title: President
AGREE REALTY CORPORATION,
a Maryland corporation
By:/s/ Xxxxxxx Agree
--------------------
Name: Xxxxxxx Agree
Title: President
MICHIGAN NATIONAL BANK,
a national banking association,
as Bank and as Lender
By:
--------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
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AGREEMENT OF GUARANTOR
By executing this First Amendment the undersigned "Guarantor" agrees that the
Indebtedness of Borrower is and, notwithstanding this First 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 First Amendment; (2) consents to all of the provisions of
this First 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 First
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 First Amendment which apply to Guarantor; (7)
acknowledges and agrees that this First Amendment has been freely executed
without duress and after an opportunity was provided to Guarantor for review
of this First Amendment by competent legal counsel of Guarantor's choice; and
(8) acknowledges that the Bank has provided Guarantor with a copy of this
First Amendment and such other Related Documents as Guarantor has requested.
GUARANTOR:
AGREE REALTY CORPORATION,
a Maryland corporation
By:/s/ Xxxxxxx X. Agree
-----------------------
Xxxxxxx X. Agree
Its: President
REVISED EXHIBIT B
Permitted Encumbrances
First mortgage liens and related security interests have been granted to the
following lenders on the projects described below:
A. Nationwide Insurance Company
1. Charlevoix Commons
2. Chippewa Commons
3. Xxxxxxxx Plaza II
4. Petoskey Town Center
5. Plymouth Commons
6. Rapids Associates
7. Shawano Plaza
B. Travelers Indemnity
1. North Lakeland Plaza
C. American United Life
1. Winter Garden Plaza
D. Michigan National Bank
1. Perrysburg Plaza
E. Michigan National Bank, NBD Bank and LaSalle National Bank
1. The properties listed on Exhibit A to this Agreement.
2. Norman, Oklahoma Borders
3. Monroeville, Pennsylvania Borders
4. Monroeville, Pennsylvania TGI Fridays
