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SECOND 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 November 17, 1997
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SECOND AMENDMENT TO
LINE OF CREDIT AGREEMENT
THIS SECOND AMENDMENT TO LINE OF CREDIT AGREEMENT ("Second
Amendment"), dated as of November 17, 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
Second 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, as amended by First Amendment
thereto dated as of August 7, 1997 ("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
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. Amendment to Section 2.6. The last sentence of Section 2.6(a) of
the Original Agreement is hereby deleted in its entirety and replaced with
the following:
"Notwithstanding the foregoing, at any time that Kmart's debt rating
by both Moody's and S&P is greater than "A-", each Base Rate Margin
and each LIBOR Margin set forth in the chart above shall be decreased
by .125%. Any further decrease in the Base Rate Margin or LIBOR
Margin shall be at the sole discretion of the Required Lenders."
C. REPRESENTATIONS AND WARRANTIES.
Borrower and Guarantor represent, warrant, covenant and agree that as
of the date hereof:
1. Authority. Each of Borrower and the Company has full power,
authority and legal right to enter into this Second Amendment, and the
execution, delivery and performance by Borrower and the Company of this
Second Amendment:
(a) has 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. This Second Amendment is the legal, valid and
binding obligation of Borrower and Guarantor and is enforceable against
Borrower and Guarantor 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 and Guarantor, as applicable, contained in the
Agreement and the other Loan Documents are true, correct and complete on and
as of the date hereof.
4. Default. No Event of Default or Default has occurred and is
continuing.
C. 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, 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 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 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 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
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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
the Lenders entering into this Second 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 hereof. 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 Second Amendment and each
acknowledge and agree that Agent and each Lender is relying upon this release
in entering into this Second 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 sue 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 represents the entire
agreement between the parties hereto relating hereto 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/ Richard Agree
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Name: Richard Agree
Title: President
AGREE REALTY CORPORATION,
a Maryland corporation
By: /s/ Richard Agree
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Name: Richard Agree
Title: President
[SIGNATURES CONTINUED ON NEXT PAGE]
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MICHIGAN NATIONAL BANK,
a national banking association, as Agent
and as Lender
By: /s/ Sheila E. Maples
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Name: Sheila E. Maples
Title: Vice President
NBD BANK, N.A.,
a Michigan banking corporation, as Lender
By:
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Name: Garry D. Boyer
Title: First Vice President
LASALLE NATIONAL BANK,
a national banking association, as Lender
By: ------------------------------
Name: Thomas Jeffrey
Title: Vice President
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MICHIGAN NATIONAL BANK,
a national banking association, as Agent
and as Lender
By:
-----------------------
Name: Sheila E. Maples
Title: Vice President
NBD BANK, N.A.,
a Michigan banking corporation, as Lender
By: /s/ Kirk W. Anderson
-------------------------
Name: Kirk W. Anderson
Title: First Vice President
LASALLE NATIONAL BANK,
a national banking association, as Lender
By:
-------------------------
Name: Thomas Jeffrey
Title: Vice President
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MICHIGAN NATIONAL BANK,
a national banking association, as Agent
and as Lender
By:
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Name: Sheila E. Maples
Title: Vice President
NBD BANK, N.A.,
a Michigan banking corporation, as Lender
By:
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Name: Garry D. Boyer
Title: First Vice President
LASALLE NATIONAL BANK,
a national banking association, as Lender
By: /s/ Thomas Jeffrey
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Name: Thomas Jeffrey
Title: Vice President
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