EXHIBIT 10.1
FIFTH AMENDMENT TO
AMENDED AND RESTATED BUSINESS LOAN AGREEMENT
THIS FIFTH AMENDMENT TO AMENDED AND RESTATED BUSINESS LOAN AGREEMENT
("Fifth Amendment"), made as of April 30, 2002, by and between AGREE LIMITED
PARTNERSHIP, a Delaware limited partnership, whose address is 31850
Northwestern Highway, Farmington Hills, Michigan 48334 (the "Borrower") and
STANDARD FEDERAL BANK, N.A. (formerly, Michigan National Bank), a national
banking association, whose address is 2600 West Big Beaver Road, Troy,
Michigan 48084 (the "Bank"). Capitalized terms used but not defined in this
Fourth 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, Second Amendment and Third Amendment
thereto, a Letter Agreement dated December 18, 2000, and a Fourth Amendment
dated as of February 11, 2001 ("Restated Agreement"), whereby Bank agreed to
make a $5,000,000 Line of Credit Loan ("Loan") available to Borrower;
WHEREAS, the Loan has been extended by reason of the various
amendments but will mature April 30, 2002 as provided in the Fourth Amendment;
and
WHEREAS, Borrower has requested Bank to again extend the maturity date
of the Loan and modify and amend certain terms of the Restated Agreement to
evidence the extension of the Loan and Bank has agreed to do so upon the terms
and condition of this Fifth 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 MATURITY DATE AND LOAN DATE set
forth in Section I of the Restated Agreement are changed to read "April 30,
2003" and "April 30, 2002", respectively.
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 Fifth Amendment:
1. AUTHORITY. Each of Borrower and Guarantor, as applicable, has
full power, authority and legal right to enter into this Fifth Amendment and
the Note (as defined below). The execution, delivery and performance by
Borrower and Guarantor of the applicable Fifth 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 Fifth 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 Fifth
Amendment.
4. DEFAULT. Upon closing of the Fifth Amendment transaction, no
Event of Default or Default has occurred and is continuing, and neither
Borrower or Guarantor has any defense, setoff or counterclaim with respect to
the Note, the Restated Agreement or any documents executed in connection
therewith.
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C. CONDITIONS TO CLOSING.
In addition to those conditions set forth elsewhere in the Restated
Agreement, the obligations of Bank under this Fifth 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. FIFTH AMENDMENT DOCUMENTS.
(a) Fifth Amendment. Borrower and Guarantor shall have
executed and delivered this Fifth Amendment to Bank.
(b) Seventh Amended and Restated Note. Borrower shall have
executed and delivered the Seventh 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 Fifth Amendment documents and
(ii) the resolutions of Guarantor's board of directors approving and
authorizing the execution, delivery and performance of all Fifth Amendment
documents executed by Guarantor.
4. ADDITIONAL MATTERS. Bank shall have received such other
certificates, opinions, documents and instruments relating to the Fifth
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 Fifth 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
Fifth 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 Fifth 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 Fifth
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 Fifth 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 Fifth Amendment shall be
deemed to include this Fifth Amendment unless the context shall otherwise
require.
4. CONTINUED EFFECTIVENESS. Notwithstanding anything contained
herein, the terms of this Fifth 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 Fifth Amendment.
5 COUNTERPARTS. This Fifth 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 Fifth 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 Fifth
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 Fifth
Amendment and each acknowledge and agree that Bank is relying upon this
release in entering into this Fifth Amendment. No claim may be made by
Borrower, Guarantor, or any other Person against Bank or the affiliates,
directors, officers, employees,
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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 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 Fifth Amendment, the exhibits attached
hereto, and the other Fifth Amendment documents represent the entire agreement
between the parties hereto relating to the Fifth 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 Fifth 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
-------------------------------
Name: Richard Agree
Title: President
STANDARD FEDERAL BANK, N.A.,
a national banking association
By: /s/ Irwin Knox
-------------------------------------
Name: Irwin Knox
Title: Vice President
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AGREEMENT OF GUARANTOR
By executing this Fifth Amendment the undersigned "Guarantor" agrees
that the Indebtedness of Borrower is and, notwithstanding this Fifth
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 Fifth Amendment; (2) consents to all of the provisions of
this Fifth 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 Fifth
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 Fifth Amendment which apply to Guarantor; (7)
acknowledges and agrees that this Fifth Amendment has been freely executed
without duress and after an opportunity was provided to Guarantor for review
of this Fifth Amendment by competent legal counsel of Guarantor's choice; and
(8) acknowledges that the Bank has provided Guarantor with a copy of this
Fifth Amendment and such other Related Documents as Guarantor has requested.
GUARANTOR:
AGREE REALTY CORPORATION,
a Maryland corporation
By: /s/ Richard Agree
-----------------------------
Richard A. Agree
Its: President
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