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EXHIBIT 10.1
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THIRD 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
BANK ONE, MICHIGAN
AND
LASALLE BANK NATIONAL ASSOCIATION
AS LENDERS
DATED AS OF AUGUST 7, 2000
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THIRD AMENDMENT TO
LINE OF CREDIT AGREEMENT
THIS THIRD AMENDMENT TO LINE OF CREDIT AGREEMENT ("Third Amendment"),
dated as of August 7, 2000 ("Third Amendment Closing Date"), 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 BANK ONE, MICHIGAN, a Michigan banking corporation,
formerly NBD Bank ("NBD"), and LASALLE BANK NATIONAL ASSOCIATION, a national
banking association, formerly LaSalle National Bank ("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 ("Agreement") whereby Lenders made
available to Borrower a line of credit loan facility in the maximum amount of
$50,000,000. The Agreement has been amended by a First Amendment to Line of
Credit Agreement dated August 7, 1997, and a Second Amendment to Line of Credit
Agreement dated November 17, 1997. The Line of Credit Agreement and the
aforementioned amendments are collectively, the "Agreement."
Borrower and Lenders now wish to again amend certain terms and
provisions of the 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 AGREEMENT.
1. DEFINED TERMS.
(a) The following defined terms and the meanings thereof set
forth in Section 1.1 of the Agreement are hereby deleted in their entirety and
replaced with the following:
"BASE RATE" means, at any particular date, the higher of (i)
the Prime Rate, or (ii) two percent (2%) per annum above the Federal
Funds Effective Rate, rounded to the nearest 1/4 of 1% (.25%). The
determination of the Base Rate by Agent shall be conclusive absent
manifest error.
"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:
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<TABLE>
<CAPTION>
==================== ==================== ======================= =====================
Borders Cap Rate Kmart Cap Rate Circuit City Cap Rate TBD Cap Rate
============================== ==================== ==================== ======================= =====================
<S> <C> <C> <C> <C>
YE (yield requirement on 8.5% 9.0% 9.0% 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)
============================== ==================== ==================== ======================= =====================
</TABLE>
"DRAW PERIOD" shall mean the period commencing on November 14,
1995 expiring on the date which is thirty-six (36) months from the
Third Amendment Closing Date.
"EXISTING PROPERTIES" has the meaning given such term in the
Agreement, but Schedule 2 is replaced by the Schedule 2 attached to
this Third Amendment.
2. AMENDMENT TO SECTION 2.6 (a). Section 2.6(a) of the Agreement is
hereby amended by deleting the grid on page 21 thereof and substituting the
following grid in its place:
<TABLE>
<CAPTION>
BASE RATE MARGINS AND LIBOR MARGINS
=========================================================================================
DEBT TO CAPITAL VALUE RATIO
====================================================================================================================
DEBT SERVICE COVERAGE GREATER THAN OR EQUAL TO GREATER THAN OR EQUAL TO LESS THAN 60%
RATIO 67.5% 60% BUT LESS THAN 67.5%
========================== ----------------------------- ---------------------------- ------------------------------
<S> <C> <C> <C>
GREATER THAN OR EQUAL TO LIBOR Margin = 1.75% LIBOR Margin = 1.625% LIBOR Margin = 1.50%
1.55
========================== ----------------------------- ---------------------------- ------------------------------
GREATER THAN OR EQUAL TO LIBOR Margin = 1.875% LIBOR Margin = 1.75% LIBOR Margin = 1.625%
1.35 BUT LESS THAN 1.55
========================== ----------------------------- ---------------------------- ------------------------------
LESS THAN 1.35 LIBOR Margin = 2.125% LIBOR Margin = 1.875% LIBOR Margin = 1.75%
========================== ============================= ============================ ==============================
</TABLE>
3. AMENDMENT TO SECTION 2.6(C)(II). Section 2.6(c)(ii)(A) of the
Agreement is amended by deleting the same and inserting the following language:
". . . (ii) in respect to each LIBOR Portion, (A) at
the end of each Interest Period, but if the Interest Period is
longer than three (3) months, then at the end of each quarter,
. . ."
4. AMENDMENT TO SECTION 2.14(A). Section 2.14(a) is amended by
deleting the parenthetical in the second and third line thereof and substituting
as a parenthetical the following language:
". . . (based on a year of 360 days)"
and by deleting the grid on page 26 and substituting the following grid:
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<TABLE>
<CAPTION>
NON-USE FEE RATE
=======================================================================================
DEBT TO CAPITAL VALUE RATIO
====================================================================================================================
DEBT SERVICE COVERAGE RATIO GREATER THAN OR GREATER THAN OR EQUAL TO LESS THAN 60%
EQUAL TO 67.5% 60% BUT LESS THAN 67.5%
============================ ---------------------------- --------------------------- ------------------------------
<S> <C> <C> <C>
GREATER THAN OR EQUAL TO .375% .25% .25%
1.55
============================ ---------------------------- --------------------------- ------------------------------
GREATER THAN OR EQUAL TO .50% .375% .25%
1.35 BUT LESS THAN 1.55
============================ ---------------------------- --------------------------- ------------------------------
LESS THAN 1.35 .50% .50% .375%
============================ ============================ =========================== ==============================
</TABLE>
5. FURTHER AMENDMENTS TO SECTION 2. New sections are added to Section 2
as follows:
2.20 Letter of Credit Commitment. Subject to the terms and conditions
hereof, until the Maturity Date, Agent agrees to issue or confirm
Letters of Credit for the account of Borrower in such form as may from
time to time be approved by Agent in favor of such beneficiaries as
Borrower shall specify (the "Letters of Credit"); provided that the
aggregate face amount of the Letters of Credit outstanding or
requested, together with Letters of Credit paid but not reimbursed by
Borrower to the extent not an outstanding Advance, shall at no time
exceed Five Million and 00/100 Dollars ($5,000,000.00); provided,
further, that the aggregate face amount of the Letters of Credit
outstanding or requested, when added to the aggregate face amount of
all other Letters of Credit outstanding and all amounts from time to
time outstanding under the Line of Credit Loan together with Letters of
Credit paid but not reimbursed by Borrower to the extent not an
Advance, shall not exceed the Borrowing Base. Each Letter of Credit
renewed or issued hereunder shall: (i) be denominated in United States
Dollars; and (ii) expire on a date which is not more than twelve (12)
months from its issuance and at least thirty (30) days' prior to the
Line of Credit Loan Maturity Date.
2.21 Requests for Letters of Credit. Borrower may request issuance of a
Letter of Credit from Bank by delivery to Bank of a Request for Letter
of Credit executed by an authorized officer of Borrower, subject to the
following and to the remaining provisions hereof:
(a) Each such request for a Letter of Credit shall
set forth the information required on the Request for Letter
of Credit form provided by the Agent which form shall include:
(i) The proposed date of issuance of the Letter
of Credit, which must be a Business Day;
(ii) The amount of the Letter of Credit;
(iii) The beneficiary of the Letter of Credit;
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(iv) The conditions of the Letter of Credit;
(v) The Expiration Date of the Letter of
Credit.
(b) Each such Request for Letter of Credit shall be
delivered to Agent three (3) Business Days prior to the
proposed date of issuance of the Letter of Credit;
(c) The face amount of the Letter of Credit requested
plus the principal amount of all Advances then outstanding,
plus the principal amount of all Advances requested but not
yet funded, plus the aggregate undrawn portion of any
previously issued Letters of Credit which shall still be
outstanding as of the date of the Request for Letter of Credit
and the aggregate face amount of Letters of Credit requested
but not yet issued and the amount of all Letters of Credit
paid but not yet reimbursed by Borrower to the extent not an
outstanding Advance shall not exceed the Borrowing Base;
2.22 Reimbursement Obligations of the Banks. Upon issuance of a
Letter of Credit by Agent, each Bank shall automatically acquire a risk
participation interest in such Letter of Credit based upon its Pro Rata
Share. If Agent shall honor a draft or other demand for payment
presented or made under any Letter of Credit, Agent shall provide
notice thereof to each Bank on the date such draft or demand is honored
unless Borrower shall have satisfied its Reimbursement Obligation by
payment to Agent on such date. Upon receipt of such notice, each Bank
shall forthwith (but in any event, no later than 1:00 p.m. Detroit time
on the Business Day of receipt of such notice if such Bank receives
such notice by 10:00 a.m. Detroit time on such day; receipt of such
notice after 10:00 a.m. Detroit time on any day shall be deemed to be
received by 10:00 a.m. Detroit time on the following Business Day),
make available to Agent at its principal office, immediately available
funds in an amount equal to such Bank's Pro Rata Share of any amount
paid or disbursed, or to be paid or disbursed, by Agent to settle its
obligations under any draft or other order, instrument or demand drawn
or presented under any Letter of Credit.
The obligation of each Bank to provide Agent with such Bank's
Pro Rata Share of the amount of any payment or disbursement made or to
be made by Agent to settle its obligations under any item drawn or
presented under any Letter of Credit in accordance with the provisions
of the preceding paragraph shall be absolute and unconditional under
any and all circumstances and irrespective of any setoff, counterclaim
or defense to payment which such Bank may have or have had against
Agent, including without limitation, any defense based on the failure
of the demand for payment under such Letter of Credit to conform to the
terms of such Letter of Credit, or the legality, validity, regularity
or enforceability of such Letter of Credit or any defense based on the
identity of the transferee of such Letter of Credit or the sufficiency
of the transfer if such Letter of Credit is transferable; provided,
however, that no Bank shall be obligated to reimburse Agent pursuant to
the preceding provisions of this section for any wrongful payment or
disbursement made or to be made by Agent under any
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Letter of Credit as a result of acts or omissions constituting gross
negligence or willful misconduct on the part of Agent or any of its
officers, employees or agents.
2.23 Procedure for Issuance of Letters of Credit. Borrower may from
time to time request Agent to issue a Letter of Credit by delivering to
Agent's office a properly completed Application. Promptly upon receipt
of such documents, Agent shall advise each other Bank thereof. Upon the
issuance of each Letter of Credit, Agent shall give the other Banks
prompt written notice of such issuance. Agent will process such
Application in accordance with its customary procedures, and shall
issue such Letter of Credit according to the terms of such Application
and this Agreement.
2.24 Reimbursement Obligations of Borrower.
(a) Borrower agrees to reimburse Agent for the total amount of
any sums paid by Agent in connection with Letters of Credit, including
any drawing or demand under Letters of Credit or any Advance made by
Agent in respect of Letters of Credit, and the amount of any taxes,
fees, charges or other costs or expenses whatsoever incurred by Agent
in connection with any payment made by Agent under, or with respect to,
such Letter of Credit (the "Reimbursement Obligation") as set forth in
the Application.
(b) Payment by Agent of a draw under any Letter of Credit
shall be deemed an Advance under the Line of Credit Loan in an amount
sufficient to discharge Borrower's Reimbursement Obligation with
interest thereon as set forth in this Agreement as of the date of
payment. To the extent that Borrower is not eligible for an Advance
under the Line of Credit Loan, Borrower shall immediately pay and
discharge the Reimbursement Obligation pursuant to the terms of the
Application and this Agreement.
(c) Borrower's Reimbursement Obligations with respect to
Letters of Credit shall be absolute, unconditional and irrevocable and
shall remain in full force and effect until all Obligations of Borrower
to the Banks hereunder shall have been satisfied, and such Obligations
shall not be affected, modified or impaired upon the happening of any
event, including without limitation, any of the following, whether or
not with notice to, or the consent of, the Borrower:
(i) Any lack of validity or enforceability of any
Letter of Credit, Application or any documentation relating to
any Letter of Credit or to any transaction related in any way
to such Letter of Credit (the "Letter of Credit Documents");
(ii) Any amendment, modification, waiver, consent, or
any substitution, exchange or release of or failure to perfect
any interest in collateral or security, if any, with respect
to any of the Letter of Credit Documents;
(iii) The existence of any claim, setoff, defense or
other
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right which the Borrower may have at any time against any
beneficiary or any transferee of any Letter of Credit (or any
persons or entities for whom any such beneficiary or any such
transferee may be acting), the Agent or any Bank or any other
person or entity, whether in connection with any of the Letter
of Credit Documents, the transactions contemplated herein or
therein or any unrelated transactions; and
(iv) Any draft or other statement or document
presented under any Letter of Credit proving to be forged,
fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect;
provided, however, that Borrower shall have no Reimbursement
Obligation for any wrongful payment or disbursement made or to
be made under any Letter of Credit as a result of acts or
omissions constituting gross negligence or willful misconduct
on the part of Agent or any of its officers, employees or
agents.
No setoff, counterclaim, reduction or diminution of any
obligation or any defense of any kind or nature which the
Borrower has or may have against the beneficiary of any Letter
of Credit shall be available hereunder to Borrower against the
Agent or any Bank.
2.25 Fees.
(a) Letter of Credit Fees. Borrower agrees to pay or
reimburse Agent upon demand, for the account of each Bank, a
letter of credit fee for the issuance of such Letter of Credit
to be divided by the Banks in accordance with their Pro-Rata
Shares equal to 1/4 of 1 percent multiplied by the face amount
of each Letter of Credit for the period from and including the
date of issuance of such Letter of Credit to and including the
date upon which such Letter of Credit expires or is
terminated, including all periods during which such Letter of
Credit is renewed, and such other normal and customary fees,
costs and expenses as are incurred or charged by Agent from
time to time in issuing and effecting payment under or
administering any Letter of Credit (including, without
limitation, amendment fees and transfer fees, if any) and
including a fee for Agent for each Letter of Credit or renewal
of 12.5 basis points.
5. AMENDMENT TO SECTION 5.16. Section 5.16 is amended by deleting the
numerals $23,092,200" and substituting the numerals "$49,674,070".
6. AMENDMENTS TO SCHEDULES 3, 4 AND 8. In connection with the Third
Amendment, all properties listed on Schedule 3 are deleted therefrom. Such
properties having been moved to Schedule 2 and are now Existing Properties.
Schedules 4 and 8 are revised as attached.
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C. REPRESENTATIONS AND WARRANTIES.
Borrower represents, warrants, covenants and agrees that as of the
Third Amendment Closing Date, after giving effect to the consummation of the
transactions contemplated by this Third Amendment:
1. AUTHORITY. Each of Borrower and the Company has full power,
authority and legal right to enter into the applicable Third Amendment
Documents. The execution, delivery and performance by Borrower and the Company
of the applicable Third 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 Third 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 Third 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 Third Amendment.
4. SCHEDULES. The Schedules to the Agreement remain true, correct and
complete on and as of the Third Amendment Closing Date except to the extent that
Revised Schedules are attached to this Third Amendment, in which case such
revised Schedules are true, correct and complete on and as of the Third
Amendment Closing Date.
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5. DEFAULT. Upon closing of the Third 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 Third Amendment are conditioned upon (a)
the fulfillment, in a manner satisfactory to Lenders on or before the Third
Amendment Closing Date, of each of the following terms and conditions or (b) the
delivery on or before the Third 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. THIRD AMENDMENT DOCUMENTS.
(a) Third Amendment. Borrower and the Company shall have executed
and delivered this Third 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 Third Amendment Closing Date, from counsel to Borrower, in form and
substance satisfactory to Agent and its counsel, that, among other things, this
Third Amendment and any other Third 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 Third 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 Third 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 Third 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 Third
Amendment Closing Date, certifying (i) the names and true signatures of the
incumbent officers of the Company authorized to sign the applicable Third
Amendment Agreements, (ii) the by-laws of the Company as in effect on the Third
Amendment Closing Date, (iii) the resolutions of the Company's board of
directors approving and authorizing the execution, delivery and performance of
all Third 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.
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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. 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 Third
Amendment Closing Date, the financial covenants set forth in the Agreement are
satisfied and that, as of the Third Amendment Closing Date, there is no Default
or Event of Default under the Agreement.
7. ADDITIONAL MATTERS. Agent shall have received such other
certificates, opinions, documents and instruments relating to the Third
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 Third Amendment transaction shall be satisfactory in form
and substance to Agent.
8. FEES. Borrower shall have paid to Agent for distribution to the
Banks in accordance with their Pro Rata Shares a fee of $250,000 for this Third
Amendment plus the attorney fees and costs of Agent in connection with this
Third Amendment.
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.
2. AFFIRMATION OF LOAN DOCUMENTS. Borrower and the Company acknowledge
and affirm that (i) the Loan Documents, as amended by the Third Amendment
Agreements and Section E(1) of this Third 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 Third Amendment Agreements and Section E(1) of this Third 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.
G. MISCELLANEOUS.
1. SECTION TITLES. The section titles contained in this Third 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 Third 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
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this Third Amendment shall be deemed to include this Third Amendment unless the
context shall otherwise require.
4. CONTINUED EFFECTIVENESS. Notwithstanding anything contained herein,
the terms of this Third 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 Third Amendment.
5. COUNTERPARTS. This Third 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 Third 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 Third 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 Third 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 Third Amendment and each
acknowledge and agree that Agent and each Lender is relying upon this release in
entering into this Third 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.
8. ENTIRE AGREEMENT. This Third Amendment, the exhibits and schedules
attached hereto, and the other Third Amendment Agreements represent the entire
agreement between the parties hereto relating to the Third 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.
(Signatures contained on following page)
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IN WITNESS WHEREOF, this Third 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
AGREE REALTY CORPORATION,
a Maryland corporation
By: /s/ RICHARD AGREE
-----------------
Name: Richard Agree
Title: President
MICHIGAN NATIONAL BANK,
a national banking association, as Agent
and as Lender
By: /s/ SHEILA E. MAPLES
--------------------
Name: Sheila E. Maples
Title: Vice President
BANK ONE, MICHIGAN,
a Michigan banking corporation, as Lender
By: /s/ STEVEN J. MAHR
------------------
Name: Steven J. Mahr
Title: First Vice President
LASALLE BANK NATIONAL ASSOCIATION,
a national banking association, as Lender
By: /s/ JOHN C. HEIN
----------------
Name: John C. Hein
Title: Senior Vice President
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REVISED SCHEDULE 2
EXISTING PROPERTIES
THIRD AMENDMENT TO
LINE OF CREDIT AGREEMENT
<TABLE>
<CAPTION>
=============================== ===========================
PROPERTY LOCATION
------------------------------- ---------------------------
<S> <C>
Borman Center Roseville, MI
------------------------------- ---------------------------
Grayling Plaza Grayling, MI
------------------------------- ---------------------------
Iron Mountain Plaza Iron Mountain, MI
------------------------------- ---------------------------
Ironwood Commons Ironwood, MI
------------------------------- ---------------------------
Oscoda Plaza Oscoda, MI
------------------------------- ---------------------------
Capital Plaza Frankfort, KY
------------------------------- ---------------------------
West Frankfort Plaza West Frankfort, IL
------------------------------- ---------------------------
19225 Biscayne Blvd. Borders #83
Aventura, Fl
------------------------------- ---------------------------
4545 Kenny Borders #2
Columbus, Ohio 43220
------------------------------- ---------------------------
Mall Blvd. at Oxford Blvd. TGI Friday
Monroeville, Pennsylvania 15146
------------------------------- ---------------------------
132nd and Maple Borders #133
Omaha, Nebraska 68114
------------------------------- ---------------------------
Mall Blvd. at Oxford Blvd. Borders #143
Monroeville, Pennsylvania 15146
------------------------------- ---------------------------
900 State Street Borders #129
Santa Barbara, California 93107
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1715 N. Rock Road Borders #122
Wichita, Kansas 67213
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I-35 and Main Street Borders #108
Norman, OK
------------------------------- ---------------------------
Boynton Festive Center Circuit City
Boynton Beach, FL
------------------------------- ---------------------------
</TABLE>
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