Increase Agreement, dated as of July 18, 2018 among Agree Limited Partnership, as the Borrower, the Company, as the parent, PNC Bank, National Association and the other lenders party thereto

EX-10.1 2 tv498944_ex10-1.htm EXHIBIT 10.1

Exhibit 10.1

EXECUTION VERSION

INCREASE AGREEMENT

THIS INCREASE AGREEMENT (this “Agreement”) dated as of July 18, 2018 (the “Agreement”), is executed by each of the existing Revolving Lenders under (and as defined in) the Credit Agreement (as defined below) a signatory hereto (the “Increasing Lenders”), PNC BANK, NATIONAL ASSOCIATION, as Administrative Agent (the “Administrative Agent”), AGREE REALTY CORPORATION, a Maryland corporation (the “Parent”), and AGREE LIMITED PARTNERSHIP, a Delaware limited partnership (the “Borrower”).

WHEREAS, the Borrower, the Parent, the lenders from time to time party thereto, the Administrative Agent, and the other parties thereto have entered into that certain Amended and Restated Revolving Credit and Term Loan Agreement dated as of December 15, 2016 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”; terms used herein but not defined herein shall have the meanings set forth in the Credit Agreement);

WHEREAS, pursuant to Section 2.16 of the Credit Agreement, the Borrower has requested that the aggregate amount of the Commitments (as defined in the Credit Agreement) be increased; and

WHEREAS, each Increasing Lender is willing to increase the amount of such Increasing Lender’s Commitment on the terms set forth herein; and

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which hereby are acknowledged by the parties hereto, the parties hereto hereby agree as follows:

Section 1.

(a) Commitment Increases. Upon the effectiveness of this Agreement, the Borrower, the Parent and each Increasing Lender acknowledge and agree that the amount of such Increasing Lender’s Commitment shall be increased by the amount set forth for such Increasing Lender on Schedule I hereto as such Lender’s “Commitment Increase”.

(b) Reallocation. Pursuant to Section 2.16(c) of the Credit Agreement and in connection with the increase of the Commitments under Section 1(a), on the Increase Amount Date each Increasing Lender shall purchase from each Revolving Lender that is not an Increasing Lender its Applicable Revolving Percentage (determined with respect to the Revolving Lenders’ respective Commitments after giving effect to the increase of Commitments under Section 1(a)) of any outstanding Revolving Loans, by making available to the Administrative Agent for the account of such other Revolving Lender, in same day funds, an amount equal to the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Increasing Lender. The Borrower shall pay to the Revolving Lenders amounts payable, if any, to such Revolving Lenders under Section 3.05 of the Credit Agreement as a result of any resulting prepayment of any such Revolving Loans.

Section 2. Conditions Precedent. The effectiveness of this Agreement, including without limitation, the increases of the Commitments under Section 1(a), is subject to receipt by the Administrative Agent of each of the following, each in form and substance satisfactory to the Administrative Agent (the date such conditions are satisfied, the “Increase Amount Date”):

(a) a counterpart of this Agreement duly executed by the Borrower, the Parent, the Administrative Agent, and each of the Increasing Lenders;

(b) Revolving Notes executed by the Borrower, payable to each Increasing Lender requesting a Revolving Note, in the amount of such Increasing Lender’s aggregate Commitment (after giving effect to the increase contemplated hereby);

(d) (i) copies of the Organization Documents of each Loan Party, certified (x) as of a recent date by the appropriate governmental official, each dated as of the Increase Amount Date or a recent date prior thereto and (y) by its secretary or assistant secretary as being in full force and effect without modification or amendment; provided, that to the extent such Organization Documents have previously been delivered to the Administrative Agent, the certification by such secretary or assistant secretary shall certify that such Organization Documents are in full force and effect and have not been modified or amended since the such date the same were delivered to the Administrative Agent; (ii) signature and incumbency certificates of the officers of each Loan Party executing this Agreement and each other agreement executed in connection therewith to which it is a party; (iii) resolutions of the board of directors or similar governing body of each Loan Party approving and authorizing the execution, delivery and performance of this Agreement and each other agreement executed in connection therewith to which it is a party, certified as of the Increase Amount Date by its secretary or assistant secretary as being in full force and effect without modification or amendment; and (iv) a good standing certificate from each Loan Party’s jurisdiction of incorporation, organization or formation and each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;

(e) an opinion of counsel to the Loan Parties, and addressed to the Administrative Agent and the Lenders, covering such matters as reasonably requested by the Required Lenders, in form and content similar to the opinion provided to the Administrative Agent and the Lenders pursuant to Section 5.01(a)(v) of the Credit Agreement or such other form acceptable to the Administrative Agent;

(f) evidence that all fees, expenses and reimbursement amounts due and payable to the Administrative Agent and the Increasing Lenders have been paid; and

(g) such other documents, instruments and agreements as the Administrative Agent may reasonably request.

Section 3. Representations and Warranties of Loan Parties. Each Loan Party represents and warrants that (x) no Default or Event of Default shall be in existence on the Increased Amount Date, either before or immediately after giving effect to the increases in the Commitments effected hereby, or would result from the application of the proceeds thereof, and (y) the representations and warranties of each Loan Party contained in Article VI of the Credit Agreement or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects on and as of the date of the Increase Amount Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date.

Section 4. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK OTHER THAN THE CHOICE OF LAWS PROVISIONS THEREOF (OTHER THAN SECTION 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW).

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Section 5. Counterparts. This Agreement may be executed in any number of counterparts each of which, when taken together, shall constitute one and the same agreement.

Section 6. Headings. Section headings have been inserted herein for convenience only and shall not be construed to be a part hereof.

Section 7. Amendments; Waivers. This Agreement may not be amended, changed, waived or modified except by a writing executed by each of the Increasing Lenders, the Administrative Agent, the Parent and the Borrower.

Section 8. Expenses. The Borrower shall reimburse the Administrative Agent upon demand for all costs and expenses (including attorneys’ fees) incurred by the Administrative Agent in connection with the preparation, negotiation and execution of this Agreement and the other agreements and documents executed and delivered in connection herewith.

Section 9. Benefits. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns. This Agreement is a Loan Document.

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first above written.

	PNC BANK, NATIONAL ASSOCIATION,
	as Administrative Agent and as an Increasing Lender

	By:	/s/ David C. Drouillard
		Name: David C. Drouillard
		Title: Senior Vice President

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