CONTINUING UNCONDITIONAL
GUARANTY
This CONTINUING
UNCONDITIONAL GUARANTY dated as of July 14, 2008 (the
“ Guaranty ”), is executed by AGREE REALTY
CORPORATION , a Maryland corporation, whose address is 31850
Northwestern Highway, Farmington Hills, Michigan 48334 (the “
Guarantor ”), to and for the benefit of LASALLE
BANK MIDWEST NATIONAL ASSOCIATION , a national banking
association, whose address is 2600 West Big Beaver Road, Troy,
Michigan 48084 (in its individual capacity, “ LaSalle
”), as Agent for itself and the other Banks party to a Loan
Agreement of even date herewith (in such capacity, “
Agent ”), among AGREE LIMITED PARTNERSHIP , a
Delaware limited partnership (the “ Borrower ”),
LaSalle, as Agent, and LaSalle and RAYMOND JAMES BANK, FSB ,
as Banks (as defined in the Loan Agreement) (the “
Banks ”), as amended, supplemented, restated or
otherwise modified from time to time (the “ Loan
Agreement ”).
A. The Banks
have severally agreed to extend mortgage loans (collectively, the
“ Loan ”) to the Borrower in the aggregate
principal amount of Twenty Four Million Eight Hundred Thousand and
00/100 Dollars ($24,800,000.00) (the “ Loan Amount
”), evidenced by promissory notes from the Borrower to the
Banks, dated of even date with the Loan Agreement, in an aggregate
principal amount equal to the Loan Amount (as amended, restated or
replaced from time to time, the “ Notes
”).
B. As a
condition to the Banks’ loaning funds or providing other
financial accommodations to the Borrower, the Banks require that
the Guarantor execute and deliver this Guaranty in order to support
the obligations and performance of the Borrower under such loans or
financial accommodations.
C. The
Guarantor is financially interested in the Borrower and desires the
Banks to extend or continue the extension of credit to the
Borrower, which is necessary and desirable to the conduct and
operation of the business of the Borrower and will inure to the
financial benefit of the Guarantor.
NOW, THEREFORE,
FOR VALUE RECEIVED, it is agreed that the preceding provisions and
recitals are an integral part hereof and that this Guaranty shall
be construed in light thereof, and in consideration of advances,
credit or other financial accommodation heretofore afforded,
concurrently herewith being afforded or hereafter to be afforded to
the Borrower by the Banks, the Guarantor hereby unconditionally and
absolutely guarantees to the Banks or other person paying or
incurring the same, irrespective of the validity, regularity or
enforceability of any instrument, writing, arrangement or credit
agreement relating to or the subject of any such financial
accommodation, the prompt payment in full of: (a) the
Indebtedness (as hereinafter defined), plus (b) all
Rate Management Obligations under any Rate Management Agreements
(as defined in the Loan Agreement, plus (c) all costs,
legal expenses and attorneys’ and paralegals’ fees of
every kind (including those costs, expenses and fees of attorneys
and paralegals who may be employees of the Agent, its parent or
affiliates), paid or incurred by the Agent in endeavoring to
collect all or any part of the Indebtedness, or in enforcing its
rights in connection with any collateral therefor, or in enforcing
this Guaranty, or in defending against any defense, counterclaim,
setoff or crossclaim based on any act of commission or omission by
the Banks with respect to the Indebtedness, any collateral
therefor, or in connection with any Repayment Claim (as hereinafter
defined) (collectively, the “Guaranteed Debt”). In
addition, the Guarantor hereby unconditionally and absolutely
guarantees to the Banks the prompt, full and faithful performance
and discharge by the Borrower of each of the terms, conditions,
agreements, representations and warranties on the part of the
Borrower contained in any agreement, or in any modification or
addenda thereto or substitution thereof in connection with any of
the Indebtedness.
1
As used herein,
“Indebtedness” shall mean and include any and all
indebtedness, obligations and liabilities of the Borrower to the
Banks or to any Bank Affiliates (as defined in the Loan Agreement)
arising: (a) under and pursuant to the Loan Agreement, the
Notes or the other Loan Documents (as defined in the Loan
Agreement), including any and all new or renewal notes issued in
substitution or replacement therefor or any and all extensions,
renewals or replacements thereof, and (b) under any Rate
Management Agreements, or any other interest rate, currency or
commodity swap agreement(s), cap agreement(s) or collar
agreement(s), and any other agreement(s) or arrangement(s) designed
to protect the Borrower against fluctuations in interest rates,
currency exchange rates or commodity prices entered into in
connection with the loan evidenced by the Notes.
Upon an event of
default under the Indebtedness, or any default by the Guarantor of
any of the covenants, terms and conditions set forth herein which
is not cured within thirty days after notice from the Agent to the
Guarantor, all of the Guaranteed Debt shall, without notice to
anyone, immediately become due and all amounts due hereunder shall
be payable by the Guarantor. The Guarantor hereby expressly and
irrevocably: (a) waives, to the fullest extent possible, on
behalf of itself and its successors and assigns (including any
surety) and any other person, any and all rights at law or in
equity to subrogation, reimbursement, exoneration, contribution,
indemnification, set off or to any other rights that could accrue
to a guarantor or to the holder of a claim against any person, and
which the Guarantor may have or hereafter acquire against any
person in connection with or as a result of the Guarantor’s
execution, delivery and/or performance of this Guaranty, or any
other documents to which the Guarantor is a party or otherwise;
(b) waives any “claim” (as such term is defined in
the United States Bankruptcy Code) of any kind against the
Borrower, and further agrees that it shall not have or assert any
such rights against any person (including any surety), either
directly or as an attempted set off to any action commenced against
the Guarantor by the Agent or any other person; and
(c) acknowledges and agrees (i) the foregoing waivers are
intended to benefit the Banks and shall not limit or otherwise
affect the Guarantor’s liability hereunder or the
enforceability of this Guaranty, (ii) the Borrower and its
successors and assigns are intended third party beneficiaries of
the foregoing waivers, and (iii) the agreements set forth in
this paragraph and the Banks’ rights under this paragraph
shall survive payment in full of the Guaranteed Debt.
All dividends or
other payments received by the Banks on account of the
Indebtedness, from whatever source derived, shall be taken and
applied by the Agent toward the payment of the Indebtedness and in
such order of application as the Agent may, in its sole discretion,
from time to time elect. The Agent shall have the exclusive right
to determine how, when and what application of payments and
credits, if any, whether derived from the Borrower or any other
source, shall be made on the Indebtedness and such determination
shall be conclusive upon the Guarantor.
This Guaranty
shall in all respects be continuing, absolute and unconditional,
and shall remain in full force and effect with respect to the
Guarantor until: (i) written notice from the Agent to the
Guarantor by United States certified mail of its discontinuance as
to the Guarantor; or (ii) until all Guaranteed Debt created or
existing before receipt of either such notice shall have been fully
paid. If there is more than one Guarantor party hereto and this
Guaranty is discontinued as to any Guarantor, this Guaranty shall
nevertheless continue and remain in force against any other
guarantor until discontinued as to all other Guarantors. In the
event of the death, incompetency or dissolution of the Guarantor,
this Guaranty shall continue as to all of the Guaranteed Debt
theretofore incurred by the Borrower even though the Indebtedness
is renewed or the time of maturity of the Indebtedness is extended
without the consent of the successors or assigns of the
Guarantor.
No compromise,
settlement, release or discharge of, or indulgence with respect to,
or failure, neglect or omission to enforce or exercise any right
against any other guarantor shall release or discharge the
Guarantor.
2
The
Guarantor’s liability under this Guaranty shall in no way be
modified, affected, impaired, reduced, released or discharged by
any of the following (any or all of which may be done or omitted by
the Agent in its sole discretion, without notice to anyone and
irrespective of whether the Indebtedness shall be increased or
decreased thereby): (a) any acceptance by the Banks of any new
or renewal note or notes of the Borrower, or of any security or
collateral for, or other guarantors or obligors upon, any of the
Indebtedness; (b) any compromise, settlement, surrender,
release, discharge, renewal, refinancing, extension, alteration,
exchange, sale, pledge or election with
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