FIRST AMENDMENT TO
LINE OF CREDIT AGREEMENT AND
AMENDMENT AND AFFIRMATION OF LOAN DOCUMENTS
between
AGREE LIMITED PARTNERSHIP And
AGREE REALTY CORPORATION
and
MICHIGAN NATIONAL BANK
INDIVIDUALLY AND AS AGENT FOR THE LENDERS
and
NBD BANK
and
LASALLE NATIONAL BANK
AS LENDERS
Dated as of August 7, 1997
FIRST AMENDMENT TO
LINE OF CREDIT AGREEMENT
THIS FIRST AMENDMENT TO LINE OF CREDIT AGREEMENT ("First
Amendment"), dated as of August 7, 1997, is made among AGREE LIMITED
PARTNERSHIP, a Delaware limited partnership ("Borrower"), AGREE REALTY
CORPORATION, a Maryland corporation (the "Company"), and MICHIGAN NATIONAL
BANK, a national banking association ("MNB"), individually and as Agent for
the Lenders ("Agent"), and NBD BANK, a Michigan banking corporation ("NBD"),
and LASALLE NATIONAL BANK, a national banking association ("LaSalle"), as
Lenders (such term and other capitalized terms used but not defined in this
First Amendment are defined in Section 1 of the Agreement (as defined
below)).
RECITALS
Borrower, the Company and Lenders entered into a Line of Credit
Agreement dated as of November 14, 1995 ("Original Agreement") whereby
Lenders made available to Borrower a line of credit loan facility in the
maximum amount of $50,000,000.
Borrower and Lenders now wish to amend certain terms and provisions
of the Original Agreement.
AGREEMENT
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In consideration of the terms and conditions contained herein, and
of any loans, advances, or extensions of credit previously, now or hereafter
made to Borrower by the Lenders, the parties hereto hereby agree as follows:
A. AMENDMENT OF ORIGINAL AGREEMENT.
--------------------------------
1. Defined Terms.
--------------
(a) The following defined terms and the meanings thereof
set forth in Section 1.1 of the Original Agreement are hereby deleted in
their entirety and replaced with the following:
"Adjusted Funds from Operation" means, for the period for
which it is to be determined, the operating income of Borrower and
the Company for such period, less operating expenses of Borrower and
the Company for such period, determined in accordance with GAAP,
calculated on a basis consistent with the definitions of Net
Operating Income and Operating Expenses herein; but including in
operating expenses all general and administrative expenses, and
excluding operating income and expenses resulting from (i)
cumulative changes in accounting practices, (ii) discontinued
operations, (iii) extraordinary items, (iv) net income of a
Subsidiary that is unavailable to Borrower or the Company, (iv) net
income not readily convertible into Dollars or remittable to the
United States, and (v) net income from corporations, partnerships,
associations, joint ventures or other entities in which Borrower or
the Company or a Subsidiary has a minority interest or in which
Borrower or the Company does not have control, except to the extent
actually received. For the purpose of this definition, "control"
means the possession directly or indirectly of the power to direct
or cause the direction of the management and policies of a Person,
whether through the ownership of voting securities or by contract or
otherwise.
"Available Loan Amount" means, as of the First Amendment
Closing Date, $41,538,250 less the Holdback Amount, as the same may
be subsequently reduced or increased, as the case may be, pursuant
to Sections 2.9, 2.11 or 5.13, or otherwise pursuant to the terms of
this Agreement or any other Loan Document, or increased pursuant to
Section 2.18, but in no event to exceed the Available Borrowing
Base.
"Borders Cap Rate", "Kmart Cap Rate", "Circuit City Cap
Rate" and "TBD Cap Rate" means the capitalization rates calculated
as (YE x WE) + (YD x WD), taking the applicable YE, WT, YD and WD
from the chart below:
Circuit City Cap
Borders Cap Rate Kmart Cap Rate Rate TBD Cap Rate
---------------- -------------- ----------------- ------------
YE (yield requirement on 8.0% 8.50% 8.50% To be determined
equity component of total by Required Lenders
cap rate)
WE (equity weight factor 25% 25% 25% 25%
expressed as a percent)
YD (mortgage constant 10 year Treasury 10 year Treasury 10 year Treasury 10 year Treasury
assuming 20 year Rate + 1.50% Rate + 2.25% Rate + 2.00% Rate + margin to
amortization and following be determined by
interest rate) Required Lenders
WD (debt weight factor 75% 75% 75% 75%
expressed as a percent)
"Borrowing Base" means (i) the Existing Properties, (ii)
the Acquisition Properties as to which the requirements of Section
2.18(e) have been met, and (iii) the Development Properties as to
which the requirements of Section 2.18(c) have been and continue to
be met and/or as to which the requirements of Section 2.18(d) have
been met.
"Borrowing Base Value" means the aggregate (a) Appraised
Value of the (i) Existing Properties, (ii) Acquisition Properties
and (iii) Development Properties as to which the requirements of
Section 2.18(d) have been met, which are included in the Borrowing
Base, and (b) 30% of the aggregate Appraised Value of the
Development Properties included in the Borrowing Base as to which
the requirements of Section 2.18(c) (but not the requirements of
2.18(d)) have been and continue to be met, (c) excluding, however,
from the calculation of Borrowing Base Value, the Appraised Value of
any Holdback Properties; provided, however, that the Borrowing Base
Value of a Property shall at no time exceed 20% of the aggregate
Borrowing Base Value of all Properties.
"Capital Value" means, as of any date, the sum of (i) Net
Operating Income of Borrower derived from Existing Properties for
the most recently ended twelve (12) month period divided by the
Kmart Cap Rate, and (ii) the aggregate of the following in respect
of each Acquisition Property that has satisfied the conditions set
forth in Section 2.18(e): (a) during the first eight fiscal quarters
of ownership by Borrower, the Appraised Value of the Acquisition
Property, and (b) thereafter, Net Operating Income of Borrower
derived from the Acquisition Property for the most recently ended
twelve (12) month period divided by the Borders Cap Rate (if the
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Property is a Borders Stand Alone or Anchored Property), the Kmart
Cap Rate (if the Property is a Kmart Stand Alone or Anchored
Property), the Circuit City Cap Rate (if the Property is a Circuit
City Stand Alone or Anchored Property), or the TBD Cap Rate (if the
Property is not a Borders, Kmart or Circuit City Stand Alone or
Anchored Property); and (iii) the aggregate of the following in
respect of each Development Property: (a) upon satisfaction of the
conditions set forth in Section 2.18(c), 30% of the Appraised Value
of such Property; provided, however, that such 30% of Appraised
Value shall be taken into account in determining Capital Value only
for the first fifteen (15) months following the date of acquisition
of the Property by Borrower; (b) for the first eight fiscal quarters
of Borrower following satisfaction of the conditions set forth in
Section 2.18(d), the Appraised Value of such Property and (c)
thereafter, Net Operating Income of Borrower derived from such
Property divided by the Borders Cap Rate (if the Property is a
Borders Stand Alone or Anchored Property), the Kmart Cap Rate (if
the Property is a Kmart Stand Alone or Anchored Property, the
Circuit City Cap Rate (if the Property is a Circuit City Stand Alone
or Anchored Property), or the TBD Cap Rate if the Property is not a
Borders, Kmart or Circuit City Stand Alone or Anchored Property);
(iv) excluding, however, from the calculation of Capital Value the
Capital Value of any Holdback Properties. The TBD Cap Rate will be
determined by the Required Lenders in their sole discretion and will
be utilized to determine the Capital Value of any Property which is
not an Existing Property nor a Borders, Kmart or Circuit City Stand
Alone or Anchored Property.
"Draw Period" shall mean the period commencing on November
14, 1995 expiring on the date which is thirty-six (36) months from
the First Amendment Closing Date.
"Kmart Cap Rate" is defined at "Borders Cap Rate", "Kmart
Cap Rate", "Circuit City Cap Rate" and "TBD Cap Rate" above.
"ProForma Loan Debt Service" means total annual debt
service payable on the Loan, assuming an outstanding principal
amount equal to the Available Loan Amount, a principal amortization
term of twenty (20) years, and an interest rate equal to the average
of the interest rates set forth in the chart below, to be weighted
according to the relative size of the Loan Portions (determined as
of the end of the last completed fiscal quarter of Borrower) to
which such rates are applicable. The determination of such average
interest rate by the Required Lenders shall be conclusive evidence
absent manifest error.
Loan Portion Allocable to
Loan Portion Allocable to K-Mart Stand Alone or Loan Portion Allocable to
Borders Stand Alone or Anchored Properties and Circuit City Stand Alone
Anchored Properties Existing Properties or Anchored Properties All Other Properties
------------------------- ----------------------- ---------------------- --------------------
10-Year Treasury Rate + 1.50% 10-Year Treasury Rate + 10-Year Treasury Rate + 10-Year Treasury Rate +
2.25% 2.00% margin to be determined
by the Required Lenders
in their sole discretion
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"Subsidiary" means, with respect to any Person, any
corporation, partnership, association or other business entity of
which more than 50% of the total voting power of shares of stock (or
equivalent ownership or controlling interest) entitled (without
regard to the occurrence of any contingency) to vote in the election
of directors, managers or trustee thereof is at the time owned or
controlled, directly or indirectly, by that Person or one or more
Subsidiaries of that Person or a combination thereof.
"TBD Cap Rate" is defined at "Borders Cap Rate", "Kmart Cap
Rate", "Circuit City Cap Rate" and "TBD Cap Rate" above.
(b) The following terms are hereby added to subsection 1.1 of the
Original Agreement in their proper alphabetical order and shall have the
following meanings:
"Circuit City" means Circuit City, Inc., a Virginia
corporation.
"Circuit City Cap Rate" is defined at "Borders Cap Rate",
"Kmart Cap Rate", "Circuit City Cap Rate" and "TBD Cap Rate" above.
"First Amendment" means the First Amendment to Line of
Credit Agreement dated August 7, 1997 among Borrower, the Company
and Lenders.
"First Amendment Agreements" means the First Amendment and
all other agreements and documents executed by Borrower and/or the
Company in connection therewith.
"First Amendment Closing Date" means the date of the First
Amendment.
"Guaranty" means the Guaranty from the Company to Lenders
dated the Closing Date, and any amendment or supplement thereto or
any restatement thereof.
"Walgreens" means Walgreens Co., an Illinois corporation.
2. Amendment to Sections 2.1 (b). Sections 2.1(b) of the Original
Agreement is hereby deleted in its entirety and replaced with the following:
(b) Subject to the other provisions of this
Agreement, including, without limitation, Section 2.10,
2.11, 2.16 and 2.19, amounts borrowed under this Section
2.1 may be repaid and reborrowed prior to the Termination
Date. All outstanding Advances shall mature on the Maturity
Date, without further action on the part of Lenders.
3. Amendment to Section 2.2. Section 2.2 of the Original Agreement
is hereby deleted in its entirety and replaced with the following:
Section 2.2 Use of Proceeds. Borrower shall use
the proceeds of the Loan for general business purposes of
Borrower
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consistent with the "Business Objectives and Strategies"
set forth in the Prospectus of Agree Realty Corporation
dated April 15, 1994; provided, however, that Borrower
shall not use any loan proceeds to invest in any joint
venture, partnership, corporation or other entity unless
Borrower (i) acquires at least 50% of the ownership
interest in such entity, and (ii) Borrower has control of
such entity. For the purpose of this definition, "control"
means the possession directly or indirectly of the power to
direct or cause the direction of the management and
policies of a Person, whether through the ownership of
voting securities or by contract or otherwise.
4. Amendment to Section 2.6. The chart included in Section 2.6(a) of
the Original Agreement is hereby deleted in its entirety and replaced with
the following:
Base Rate Margins and LIBOR Margins
Debt to Capital Value Ratio
Debt Service Coverage Greater than or equal to Greater than or equal to
Ratio 67.5% 60% but less than 67.5% Less than 60%
-------------------- ------------------------ ----------------------- -------------
Greater than or equal to LIBOR Margin = 1.75% LIBOR Margin = 1.625% LIBOR Margin = 1.5%
1.55 Base Rate Margin = (.25%) Base Rate Margin = (.375%) Base Rate Margin = (.5%)
Greater than or equal to LIBOR Margin = 1.875% LIBOR Margin = 1.75% LIBOR Margin = 1.625%
1.35 but less than 1.55 Base Rate Margin = (.125%) Base Rate Margin = (.25%) Base Rate Margin = (.375%)
Greater than or equal to LIBOR Margin = 2.125% LIBOR Margin = 1.875% LIBOR Margin = 1.75%
1.25 but less than 1.35 Base Rate Margin = .125% Base Rate Margin = (.125%) Base Rate Margin = (.25%)
5. Amendment to Section 2.10(a). Section 2.10(a) of the Original
Agreement is hereby deleted in its entirety and replaced with the following:
Section 2.10 Repayments; Termination. (a) Borrower shall
have the right to repay amounts borrowed pursuant to Section 2.1
from time to time on the following terms and conditions: (a)
Borrower shall give Agent written notice in the form attached hereto
as Exhibit "A-3" (or telephonic notice promptly confirmed in
writing), which notice shall be irrevocable, of its intent to repay
amounts outstanding under the Loan, at least one (1) Business Day
prior to a repayment of LIBOR Portions and Base Rate Portions, which
notice shall specify the amount of such payment and what Loan
Portions are to be paid and, in the case of LIBOR Portions, the
specific Advance pursuant to which made, (b) payments of LIBOR
Portions made pursuant to this Section on a date other than the last
day of the Interest Period applicable thereto shall be accompanied
by payment of any Funding Costs resulting from such early payment.
If any such notice is given, the amount specified in such notice
shall be due and payable on the date specified therein.
6. Amendment to Section 2.18.
(a) Amendment to Section 2.18(a). Section 2.18(a) of the
Original Agreement is hereby deleted in its entirety and replaced with the
following:
Section 2.18 Addition of Collateral; Increasing Available Loan
Amount. Provided that no Default or Event of Default has occurred
and is
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continuing and that no Property shall constitute more than 20% of
the Borrowing Base Value, prior to the Termination Date, Borrower
may, subject to the limitations set forth herein and the
satisfaction of the terms of this Section 2.18, add additional
commercial real estate properties, which are approved by all of the
Lenders in their sole discretion, and which are acquired and owned
in fee simple by Borrower or leased by Borrower pursuant to a ground
lease acceptable in all respects to all of the Lenders in their sole
discretion (each an "Approved Property"), to the Borrowing Base and
thereby increase the Available Loan Amount, by subjecting the
Additional Property to the Lien of a new mortgage, deed of trust,
deed to secure debt or similar security instruments, in the same
form and substance as the Mortgage, to the Lien of the Loan
Documents, as a first lien thereon. Any Approved Property shall be
designated by Agent as an Approved Acquisition Property or an
Approved Development Property, and shall be added to the Borrowing
Base and, subject to the continued satisfaction of the Available
Borrowing Base Covenant (after giving effect to the Additional
Properties added thereto), the Available Loan Amount shall be
increased as follows:
(i) At such time as all of the conditions set forth in
Section 2.18(c) are met as to an Approved Development Property, the
Available Loan Amount shall be increased by an amount equal to 30%
of the Appraised Value of such Approved Development Property, but
only until the earlier of (i) the date fifteen months from the date
Borrower acquires such Property, or (ii) the date upon which the
conditions of set forth in Section 2.18(a)(ii) are satisfied;
(ii) At such time as all of the conditions set forth in
Section 2.18(d) are met as to an Approved Development Property, the
Available Loan Amount shall be increased by an amount equal to 65%
of the Appraised Value of such Approved Development Property; and
(iii) At such time as all of the conditions set forth in
Section 2.18(e) are met as to an Approved Acquisition Property, the
Available Loan Amount shall be increased by an amount equal to 65%
of the Appraised Value of such Approved Acquisition Property.
(b) Amendment to Section 2.18(c). Section 2.18(c) is hereby
amended by adding the following Section 2.18 (c) (iii) to Section 2.18(c):
(iii) Notwithstanding any other provision of this
Agreement, the Available Loan Amount shall not be increased pursuant
to Section 2.18(a)(i) unless the undisbursed portion of the
Available Loan Amount is sufficient to fund the remaining unpaid
cost of the acquisition, development and construction of the
Additional Approved Property in respect of which the increase in the
Available Loan Amount has been requested pursuant to Section
2.18(a)(i), and Borrower shall provide Agent with such evidence of
such costs as Agent shall require, including, but not limited to,
updating the construction budget and construction schedule for such
Additional Approved Property.
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(c) Deletion of Sections 2.18 (h) and (i). Sections 2.18(h)
and (i) of the Agreement are hereby deleted in their entirety from Section
2.18.
7. Amendment of Schedules and Exhibits. Schedules 1, 2, 3, 5 and 8
and Exhibit A-3 to the Original Agreement are hereby deleted in their
entirety and replaced with Revised Schedules 1, 2, 3, 5 and 8 and Exhibit A-3
attached hereto.
C. REPRESENTATIONS AND WARRANTIES.
Borrower represents, warrants, covenants and agrees that as of the
First Amendment Closing Date, after giving effect to the consummation of the
transactions contemplated by this First Amendment:
1. Authority. Each of Borrower and the Company has full power,
authority and legal right to enter into the applicable First Amendment
Documents. The execution, delivery and performance by Borrower and the
Company of the applicable First Amendment Documents:
(a) have been duly authorized by all necessary
partnership or corporate action, as applicable, of Borrower and the
Company;
(b) do not and will not, by lapse of time, the
giving of notice or otherwise, contravene the terms of Borrower's or
the Company's respective partnership agreement or certificate,
articles of incorporation or bylaws or of any indenture, agreement
or undertaking to which Borrower or the Company 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 the Company, 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 the Company
under any existing indenture, mortgage, deed of trust, loan or
credit agreement or other material agreement or instrument to which
Borrower or the Company is a party or by which Borrower or the
Company 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 the Company, as
appropriate, and is enforceable against Borrower and the Company, 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 Agreement and the other Loan
Documents are true, correct and complete on and as of the First Amendment
Closing Date, 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
pursuant to Section B(7).
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4. Schedules. The Schedules to the Agreement remain true, correct
and complete on and as of the First Amendment Closing Date except to the
extent that Revised Schedules are attached to this First Amendment, in which
case such revised Schedules are true, correct and complete on and as of the
First Amendment Closing Date.
5. Default. Upon closing of the First Amendment transaction, no
Event of Default or Default has occurred and is continuing.
D. CONDITIONS TO CLOSING.
In addition to those conditions set forth elsewhere in the
Agreement, the obligations of Lenders under this First Amendment are
conditioned upon (a) the fulfillment, in a manner satisfactory to Lenders on
or before the First Amendment Closing Date, of each of the following terms
and conditions or (b) the delivery on or before the First Amendment Closing
Date, duly executed, in form and substance satisfactory to Lenders (and their
counsel) of the following documents, as the case may be:
1. First Amendment Documents.
(a) First Amendment. Borrower and the Company shall have
executed and delivered this First Amendment to Agent.
(b) Borrower's Certificate. Borrower shall have executed
and delivered the Borrower's Certificate in the form attached hereto as
Exhibit D.
(c) Revised Schedules. Borrower shall have delivered the
revised Schedules to Agent.
(d) Other Agreements. Borrower shall have executed and
delivered to Agent such other agreements and documents in connection with the
Loan as Agent may request in form and substance satisfactory to Agent and its
counsel.
2. Opinion of Counsel. Agent shall have received a legal opinion,
dated the First Amendment Closing Date, from counsel to Borrower, in form and
substance satisfactory to Agent and its counsel, that, among other things,
this First Amendment and any other First Amendment Agreements have been duly
authorized, executed and delivered by Borrower and the Company and are valid
and enforceable in accordance with their terms, subject to bankruptcy and
equitable principles.
3. Organizational Documents. Agent shall have received (i) with
respect to the Company, the certificate of incorporation of the Company, as
amended, modified or supplemented to the First Amendment Closing Date,
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 First
Amendment Closing Date, 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
First Amendment Closing Date, certified to be true, correct and complete by
the appropriate Secretary of State.
4. Certified Resolutions, etc. Agent shall have received a
certificate of the secretary or assistant secretary of the Company and dated
the First Amendment Closing Date, certifying (i) the names and true
signatures of the incumbent officers of the Company authorized to sign the
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applicable First Amendment Agreements, (ii) the by-laws of the Company as in
effect on the First Amendment Closing Date, (iii) the resolutions of the
Company's board of directors approving and authorizing the execution,
delivery and performance of all First Amendment Agreements executed by the
Company, and (iv) that there have been no changes in the certificate of
incorporation of such Person since the date of the most recent certification
thereof by the appropriate Secretary of State.
5. Lien Search Reports. Agent shall have received satisfactory
(i.e., showing no Liens other than Permitted Liens) UCC searches, together
with tax lien, judgment and litigation searches conducted in the appropriate
jurisdictions by a search firm acceptable to Agent with respect to the
Properties, Borrower, and the Company as Agent shall require (collectively,
the "UCC Searches").
6. Fees and Expenses. Agent shall have received, for its account,
the fees and expenses accrued through the First Amendment Closing Date of
counsel retained by Agent, and each Lender shall have received, for its
account, the following First Amendment fees: to MNB, $62,500; to NBD, $37,500
and to LaSalle, $25,000.
7. Certification as to Covenants. Agent shall have received a
certification by the Company, individually and as general partner of Borrower
together, with other evidence satisfactory to Agent that, as of the First
Amendment Closing Date, the financial covenants set forth in Section 5.13,
5.14, 5.15 and 5.16 of the Agreement are satisfied and that, as of the First
Amendment Closing Date, there is no Default or Event of Default under the
Agreement.
8. Additional Matters. Agent shall have received such other
certificates, opinions, documents and instruments relating to the First
Amendment transaction as may have been reasonably requested by Agent, 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 Agent.
E. AMENDMENT AND AFFIRMATION OF LOAN DOCUMENTS.
1. Amendment of Certain Loan Documents. Any references to, or
definitions of, the Agreement or Loan Agreement in any of the Loan Documents
are amended hereby to mean the Agreement or Loan Agreement as heretofore,
hereby and hereafter amended, modified or supplemented, and the reference in
the eighth paragraph of each of the Notes to Section 2.6(c) of the Loan
Agreement is changed to Section 2.6(b) of the Loan Agreement.
2. Affirmation of Loan Documents. Borrower and the Company
acknowledge and affirm that (i) the Loan Documents, as amended by the First
Amendment Agreements and Section E(1) of this First Amendment, are
enforceable against the Borrower and the Company, 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 Agreements and
Section E(1) of this First Amendment; (ii) the Guaranty and the Collateral
shall continue to secure and/or guaranty the repayment of Borrower's
Obligations, whether or not Borrower's Obligations were contemplated by
Borrower, the Company or Lenders at the time of the execution of the Loan
Documents; and (iii) the security interests and liens granted to Lenders by
Borrower under the Loan Documents remain valid first perfected security
interests and liens.
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G. 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, the Company, Agent and Lenders.
3. References. Any reference to the 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 Agreement. The parties hereto expressly
do not intend to extinguish the Agreement; instead, it is the express
intention of the parties hereto to reaffirm Borrower's Obligations created
under the 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. Effectiveness. This First Amendment shall become effective on the
date on which all of the parties hereto shall have signed a counterpart
hereof and shall have delivered the same to Agent.
7. Release of Claims; Limitation of Liability. In consideration of
the Lenders entering into this First Amendment, Borrower and the Company do
each hereby release and discharge Agent and each Lender 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 the Company have against the Agent and
each Lender through the date of this First Amendment. Borrower and the
Company confirm to Agent and the Lenders 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 Agent and each Lender is relying upon
this release in entering into this First Amendment. No claim may be made by
Borrower, the Company, or any other Person against Agent or any Lender or the
Affiliates, directors, officers, employees, attorneys or agent 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 the Company hereby waive, release and
agree not to ▇▇▇ upon any claim for any such damages, whether or not accrued
and whether or not known or suspected to exist in its favor.
8. Entire Agreement. This First Amendment, the exhibits and
schedules attached hereto, and the other First Amendment Agreements 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.
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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/ ▇▇▇▇▇▇▇ Agree
--------------------
Name: ▇▇▇▇▇▇▇ Agree
Title: President
AGREE REALTY CORPORATION,
a Maryland corporation
By:/s/ ▇▇▇▇▇▇▇ Agree
--------------------
Name: ▇▇▇▇▇▇▇ Agree
Title: President
MICHIGAN NATIONAL BANK,
a national banking association, as Agent
and as Lender
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
NBD BANK,
a Michigan banking corporation, as Lender
By:/s/ ▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
LASALLE NATIONAL BANK,
a national banking association, as Lender
By:/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
-11-
REVISED SCHEDULE 1
ALLOCATED LOAN AMOUNTS
Allocated
Property Location Loan Amount
-------- -------- -----------
▇▇▇▇▇▇ Center Roseville, MI *$2,470,000
Grayling Plaza Grayling, MI $1,534,000
Iron Mountain Plaza Iron Mountain, MI $4,173,000
Ironwood Commons Ironwood, MI $4,995,250
Oscoda Plaza Oscoda, MI $1,709,500
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ $2,195,050
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ $ 453,700
Borders #▇▇▇
▇▇▇▇ ▇. ▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇, ▇▇ $2,060,500
Borders #123
▇▇▇▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇▇, ▇▇ $2,551,250
Borders #▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ $4,238,000
Borders #2 $2,063,750
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇
Borders #83
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇▇▇▇, ▇▇ $2,112,500
Circuit City
Boynton Festive Center
▇▇▇▇▇▇▇▇ ▇▇▇. & ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ $3,003,000
Borders # 108
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ $1,803,750
Borders #▇▇▇
▇▇▇▇ ▇▇▇▇. ▇▇ ▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ $5,265,000
TGI Friday
▇▇▇▇ ▇▇▇▇. ▇▇ ▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ $ 975,000
*Less Holdback Amount
-12-
REVISED SCHEDULE 2
EXISTING PROPERTIES
Property Location
-------- --------
▇▇▇▇▇▇ Center Roseville, MI
Grayling Plaza Grayling, MI
Iron Mountain Plaza Iron Mountain, MI
Ironwood Commons Ironwood, MI
Oscoda Plaza Oscoda, MI
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇
REVISED SCHEDULE 3
ADDITIONAL APPROVED PROPERTIES
Approved Acquisition Properties
Location Tenant
-------- ------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇▇▇ #▇▇
▇▇▇▇▇▇▇▇, ▇▇
4545 ▇▇▇▇▇ ▇▇▇▇▇▇▇ #2
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Mall Blvd. at Oxford Blvd. TGI Friday
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Approved Development Properties
Location Tenant
-------- ------
132nd and Maple Borders #133
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Mall Blvd. at Oxford Blvd. Borders #143
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ #▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ #▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
I-35 and ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ #▇▇▇
▇▇▇▇▇▇, ▇▇
Boynton Festive Center Circuit City
Boynton Beach, FL
-14--
REVISED SCHEDULE 5
LITIGATION
None
-15-
REVISED SCHEDULE 8
INDEBTEDNESS
Outstanding Principal
Property Lender Secured Balance
-------- ------ ------- ---------------------
Charlevoix Commons Nationwide Life Insurance Yes $3,981,600
Company
Chippewa Commons Nationwide Life Insurance Yes $5,130,840
Company
▇▇▇▇▇▇▇▇ Plaza II Nationwide Life Insurance Yes $3,407,040
Company
Petoskey Town Center Nationwide Life Insurance Yes $5,577,600
Company
Plymouth Commons Nationwide Life Insurance Yes $4,811,520
Company
Rapids Associates Nationwide Life Insurance Yes $5,120,640
Company
Shawano Plaza Nationwide Life Insurance Yes $5,597,760
Company
North Lakeland Plaza Travelers Indemnity Yes $7,910,469
Winter Gardens Plaza American United Life Yes $9,570,328
Perrysburg Plaza Michigan National Bank Yes $2,360,377
Borders Borders Group, Inc. No $1,701,406 (1)
(1)Non-interest bearing
-16-
REVISED EXHIBIT A-3
PAYMENT NOTICE
AGREE LIMITED PARTNERSHIP
Michigan National Bank
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (10-02)
Ladies and Gentlemen:
We refer to that certain Line of Credit Agreement dated as of
November __, 1995, between us, Lenders, and you, as amended (the "Loan
Agreement"). This certificate is delivered to you pursuant to Section 2.10 of
the Loan Agreement. All capitalized terms used herein shall have the same
meanings herein as they have in the Loan Agreement.
The undersigned hereby notifies you that it has elected to repay
$__________ representing the [Base Rate Portion of $____________] [LIBOR
Portion of _________ with an Interest Rate of _____________ and an Interest
Period ending on _____________]. We hereby acknowledge that we will pay
Funding Costs, as applicable.
AGREE LIMITED PARTNERSHIP
By: Agree Realty Corporation
By:_____________________
Name:
Title:
-17-