Exhibit 10.14
AMENDED AND RESTATED MASTER OPTION AGREEMENT
THIS AMENDED AND RESTATED MASTER OPTION AGREEMENT (this "Agreement"), dated
as of July 16, 2002, amends and restates that certain Master Option Agreement,
dated as of May 24, 2002 (the "Original Option Agreement"), by and among First
States Properties, L.P. ("FS Properties"), First States Holdings, L.P. ("FS
Holdings"), Xxxxxxxx X. Xxxxxxxx ("Xxxxxxxx"), Xxxxxx Xxxxxxx ("Xxxxxxx"),
Arlington Cemetery Company ("Arlington"), First States Wilmington JV, LLC (the
"GP" and collectively with FS Properties, FS Holdings, Xxxxxxxx, Xxxxxxx and
Arlington, the "Optionors") and First States Group, L.P. (itself or, after any
permitted assignment of its rights hereunder, any assignee, being referred to
herein as the "Optionee").
RECITALS:
WHEREAS, First States Wilmington JV, L.P. (the "LP") is a limited
partnership organized under the laws of the State of Delaware;
WHEREAS, FS Properties, FS Holdings, Xxxxxxxx, Xxxxxxx and Arlington
collectively own all of the limited partnership interests of LP (the "Limited
Partnership Interests");
WHEREAS, GP owns all of the general partnership interests of LP (the
"General Partnership Interests" and collectively with the Limited Partnership
Interests, the "Partnership Interests");
WHEREAS, Optionee made a loan to LP pursuant to a Mezzanine Loan Agreement,
dated as of May 24, 2002 in the aggregate principal amount of $5,000,000 (the
"Mezzanine Loan") and, in connection therewith, acquired an option pursuant to
the Original Option Agreement to purchase the Partnership Interests;
WHEREAS, FBR Asset Investment Corporation ("FBR Asset") made a loan to
Optionee pursuant to a loan agreement dated as of May 24, 2002, in the principal
amount of $5,000,000 to enable Optionee to make its loan to LP (the "FBR Asset
Loan"), and, in connection therewith, Optionee assigned its right to exercise
the Option to FBR Asset for so long as the loan from FBR Asset remains
outstanding;
WHEREAS, as of the date hereof, (i) LP has paid the Mezzanine Loan to
Optionee in full, (ii) Optionee has paid the FBR Asset Loan to FBR Asset in full
and (iii) LP and Optionee have fully satisfied and performed all of their
respective covenants and obligations arising in connection with the Mezzanine
Loan and the FBR Asset Loan; and
WHEREAS, the parties hereto desire to amend and restate the Original Option
Agreement in its entirety as hereinafter provided.
NOW, THEREFORE, in consideration of the foregoing, and of the mutual
promises and covenants contained herein, and of other good and valuable
considerations, the receipt and sufficiency of which are hereby acknowledged,
and intending to be legally bound, the parties hereto amend and restate the
Original Option Agreement in its entirety as follows:
1. Optionors hereby grant to Optionee an option to purchase from Optionors
all Partnership Interests (the "Option") owned by Optionors as set forth on
Exhibit A hereto for an aggregate exercise price equal to the Purchase Price (as
defined below). (a) The purchase price (the "Purchase Price") for the
Partnership Interests shall mean a dollar amount equal to the sum of (i) the
aggregate balances of the Capital Accounts (as defined in that certain Limited
Partnership Agreement of the LP dated as of May 24, 2002 (the "Partnership
Agreement")) of each of the Optionors as of the date hereof (the "Initial
Capital Contributions") which equals $5,508,296.27, plus (ii) the sum of all
additional Capital Contributions (as defined in the Partnership Agreement) made
by Optionors after the date hereof and prior to the date the Option is
exercised, but excluding any capital contributed to enable the payment by LP of
all or any portion of the $37,500.00 that is being paid to FBR Asset
simultaneously with the execution of this Agreement (the "Additional Capital
Contributions"); provided, however, that, solely for purposes of determining the
Purchase Price, Optionee has consented, which consent shall not be unreasonably
withheld or delayed, to such additional Capital Contributions plus (iii) the
Target Return Shortfall (as calculated below). The Target Return Shortfall shall
be calculated as follows: for each calendar year, or portion thereof, beginning
on the date of this Agreement and ending on the date of exercise of the Option,
an "Annual Target Return Amount" shall be calculated as of the last day of each
calendar year (or the date of the exercise of the Option). The "Annual Target
Return Amount" for a calendar year or portion thereof shall equal the sum of (x)
the amount necessary to generate an annual rate of return of 13% for such
calendar year or portion thereof, on the amount of the Initial Capital
Contributions plus the positive difference between the cumulative Annual
Shortfall (as defined below) for the preceding calculation years less amounts
distributed or deemed distributed pursuant to clause (y) below for the preceding
calculation years, plus (y) the amount necessary to generate an annual rate of
return on the Additional Capital Contributions plus the amount of Annual
Shortfalls for preceding calendar years (but not to exceed amounts calculated
pursuant to this clause (y) for preceding calendar years) equal to the per annum
rate of interest used to determine the cost of borrowing reimbursement component
of the annual rent payable by the tenant of the parking garage for Three Beaver
Valley Road, Wilmington, Delaware, compounded annually. If (I) the aggregate
distributions from the Partnership to Optionors from the date of this Agreement
to the calculation date is less than (II) the Annual Target Return Amount for
such year plus the cumulative Annual Shortfall for the preceding calculation
years, the difference between (I) and (II) is the Annual Shortfall for such
year. Distributions shall be deemed applied to generate the required return on
Initial Capital Contributions and related shortfalls pursuant to clause (x)
above first, and only after that return has been fully distributed shall
distributions be deemed applied to generate the required return pursuant to
clause (y) above. The Target Return Shortfall shall be the positive difference
between (A) the sum of the Annual Target Return Amounts for each calculation
year or portion thereof through the date of the exercise of the Option less (B)
the aggregate amount of distributions from the Partnership to Optionors from the
date of this Agreement to the date of the exercise of the Option. Optionors
shall allocate the Purchase Price among themselves on a basis determined as if
the Purchase Price were paid to the LP and distributed to the Optionors in
accordance with the terms and conditions of the Partnership Agreement.
2. The Option may be exercised only by written notice from Optionee to
Optionors ("Exercise Notice"), which Exercise Notice must be given on or before
the Option Expiration Date (as defined in Section 11 below). If Optionee
exercises the Option, Optionee agrees to pay all transfer taxes, if any,
relating to the conveyance of the Partnership Interests (it being understood
that such obligation to pay the transfer taxes shall apply regardless of how the
transfer taxes are calculated; provided, however, that Optionors shall cooperate
with assist and take such reasonable actions requested by Optionee in reducing
or minimizing any such taxes).
3. Each Optionor agrees that, without the prior written consent of
Optionee, it shall not: (i) sell, convey, assign or transfer all or any part of
the Partnership Interests owned by such Optionor to any person or entity who at
the time of such sale, conveyance, assignment or transfer does not agree to be
bound by and become a party to this Agreement and who does not acknowledge the
provisions of Sections 11, 14 and 15 hereof; (ii) withdraw or attempt to
withdraw from the LP; (iii) dissolve or seek to dissolve the LP or terminate its
existence or the existence of the LP; (iv) pledge, grant a security interest in,
or encumber, all or any part of the Partnership Interests owned by such Optionor
or (v) admit any other person as a partner to the LP other than Optionee, any
affiliate of Optionee, including, without limitation, American Financial Realty
Trust, a Maryland real estate investment trust ("American Financial"), FBR Asset
or any affiliate of FBR Asset.
4. LP agrees that, without the prior written consent of Optionee, it shall
not: (i) initiate, request or voluntarily agree to any amendment or modification
of any document evidencing or securing the Archon Mortgage Loan (as defined in
the Loan Agreement evidencing the FBR Asset Loan, which shall include, without
limitation, the $15,830,000 junior component thereof made by Xxxxxxx Xxxxx
Mortgage Company to LP) that in any manner adversely affects the rights of
Optionee, including without limitation, the above-named Optionee, FBR Asset and
American Financial, as applicable, under this Agreement or (ii) sell or encumber
its ownership interests in First States Wilmington, L.P. ("Property Owner"),
except for the pledge by LP of its interest in Property Owner as set forth in
the Archon Mortgage Loan.
5. The closing of the sale of the Partnership Interests (the "Closing")
shall be held at a place agreed to by Optionee and Optionors. The Closing shall
occur on the date designated in the Exercise Notice (the "Closing Date"), which
date may not be earlier than fifteen (15) days and no later than sixty (60) days
after the giving of the Exercise Notice. At the Closing, Optionee shall pay the
Purchase Price to the Optionors in immediately available good federal funds and
the following events shall take place (all of which shall be deemed to take
place simultaneously and none of which shall be deemed to have occurred until
all have occurred):
(a) Each Optionor shall execute and deliver to Optionee an assignment of
the Partnership Interests in the form acceptable to Optionee;
(b) Each Optionor shall execute and deliver to Optionee a nonforeign
status certification;
(c) Each Optionor shall confirm that there exists no financing
statements, tax liens (or other liens), encumbrances or judgments against such
Optionor encumbering the Partnership Interests which will not be released by the
Closing; and
(d) Each Optionor shall execute a certification that it has not breached
or violated any of the provisions of Paragraph 2 above.
6. Each Optionor hereby represents and warrants to Optionee as follows:
(a) such Optionor is a partner of the LP owning Partnership
Interests and Optionors collectively own all Partnership Interests;
(b) such Optionor has full power and authority to enter into this
Agreement;
(c) except for the Option granted hereby, there are no options or
other rights to purchase or otherwise acquire any interest of such Optionor in
the LP and there are no liens or security interests encumbering the Partnership
Interest owned by such Optionor; and
(d) the execution, delivery and performance of this Agreement does
not breach, violate, conflict with, or contravene (i) any applicable law, (ii)
any agreement to which such Optionor is a party or by which this may be bound,
of (iii) any order, writ or judgment binding upon such Optionor.
7. This Agreement may be amended only by a written document
subsequently executed by all of the parties hereto and Optionee.
8. No waiver of any provision or condition of this Agreement by any
party shall be valid unless in a writing signed by such party. No such waiver
shall be taken as a waiver of any other or similar provision or of any future
event, acts or default. No such waiver by Optionee shall be effective without
the written consent of FBR at any time Obligations are outstanding.
9. In the event that any provision of this Agreement shall be
unenforceable in whole or in part, such provision shall be limited to the extent
necessary to render the same valid, or shall be excised from this Agreement, as
circumstances require, and this Agreement shall be construed as if said
provision had been incorporated herein as so limited, or as if said provision
had not been included herein, as the case may be.
10. All notices required or permitted hereunder, shall be in writing and
shall be served on the parties at the following addresses:
If to the Optionee:
First States Group, L.P.
0000 Xxx Xxxxxxx
Xxxxxxxxxx, XX 00000
Attn: Xx. Xxxxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
and
FBR Asset Investment Corporation
Potomac Tower
0000 Xxxxxxxxxx Xxxxxx Xxxxx, 00/xx/ Xxxxx
Xxxxxxxxx, XX 00000
Attn: Xx. Xxxx Xxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
With a Copy to:
Hunton & Xxxxxxxx
Riverfront Plaza - East Tower
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx, III (xxxxxxx@xxxxxx.xxx)
Xxxxxx X. Xxxxx (xxxxxx@xxxxxx.xxx)
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
If to the Optionors:
To the address set forth on Exhibit A.
With a copy to:
Klehr, Harrison, Xxxxxx, Branzburg & Xxxxxx LLP
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxx (xxxxxxx@xxxxx.xxx)
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Notices shall be either (i) personally delivered or sent by Federal Express
or other nationally recognized overnight courier, in which case they shall be
deemed delivered on the date of delivery to said address, (ii) sent postage
prepaid by registered or certified mail, return receipt requested, in which case
they shall be deemed delivered three (3) business days after deposit in the U.S.
mail or (iii) telecopied, in which case they shall be deemed delivered upon
confirmation of receipt.
11. This Agreement shall be binding upon and shall inure to the benefit of
the parties hereto, and their respective heirs, executors, administrators,
trustees, personal representatives, successors and permitted assigns. No party
to this Agreement may assign all or any part of their interest in this
Agreement, provided that (a) Optionee hereby assigns to FBR Asset all of
Optionee's right title and interest in and to the Option on condition that (i)
FBR Asset may assign the right to purchase any general partnership interests of
the LP to a wholly-owned, direct or indirect, subsidiary of FBR Asset, but not
otherwise, and (ii) the Option shall automatically revert and be assigned back
to the Optionee, without further action or writing by FBR Asset or any other
person, on the earliest to occur of (A) the date on which any sale of equity
securities of
American Financial, is closed, whether pursuant to a registration statement
under the Securities Act of 1933, as amended, or a private placement conducted
in reliance on any exemption from such registration, in which Friedman,
Billings, Xxxxxx & Co., Inc. ("Xxxxxxxx Xxxxxxxx") is the lead underwriter or
lead placement agent and in which the proceeds to American Financial are not
less than $100,000,000, before deduction of underwriting commissions or
placement agent fees, as the case may be, and other offering expenses (the
"Offering"), (B) the date on which the letter agreement between Xxxxxxxx
Xxxxxxxx and American Financial Resource Group, Inc. ("AFRG") dated May 24, 2002
("Xxxxxxxx Xxxxxxxx Engagement Letter"), shall (i) be terminated by mutual
agreement of Xxxxxxxx Xxxxxxxx and AFRG, or (ii) be terminated unilaterally by
Xxxxxxxx Xxxxxxxx, provided that the Option shall not revert to Optionee if
Xxxxxxxx Xxxxxxxx' unilateral termination was caused by AFRG or any affiliate of
AFRG's failure to use commercially reasonable best efforts in effecting the
terms of the Xxxxxxxx Xxxxxxxx Engagement Letter, or (C) November 24, 2003
(collectively, the "Option Expiration Date"), but only if, in each such
instance, the Offering shall not have previously occurred and the Option shall
not have been previously exercised on that date and (b) whenever the above-named
Optionee holds the Option, but subject to the rights of FBR Asset as expressed
in clause (a) above, the above-named Optionee may assign the Option to American
Financial or any other affiliate of such Optionee. Any other provision of this
Agreement to the contrary notwithstanding, so long as the Archon Mortgage Loan
or any portion or component thereof is outstanding, no Optionee, including
without limitation, the above-named Optionee, FBR Asset or American Financial
shall (a) exercise the Option unless, at the time of exercise, such Optionee
shall have total assets (in name or under management) in excess of $200 million
and capital/statutory surplus or shareholder's equity in excess of $100 million
(in both cases exclusive of the Partnership Interests) or (b) take any action to
terminate, liquidate or dissolve LP following such Optionee's exercise of the
Option. The term "Optionee" shall mean the above-named Optionee at any time such
entity holds the Option, FBR Asset and/or its permitted assignee at any time FBR
Asset or such permitted assignee holds the Option and, if applicable, American
Financial and/or any other permitted assignee of the above-named Optionee at any
time American Financial or such permitted assignee holds the Option. FBR Asset
and American Financial are expressly intended as third party beneficiaries of
this Agreement.
12. This Agreement shall be governed in all respects by the laws of the
State of Delaware, without regard to choice of law principles.
13. The use of the masculine, feminine or neuter gender and the use of the
singular and plural shall not be given the effect of any exclusion or limitation
herein; and the use of the word "person" or "party" shall mean and include any
individual, trust, corporation, limited liability company, partnership or other
entity. As used herein, "business day" for any party shall be a day which is not
a Saturday, Sunday or legal holiday at such party's principal place of business.
14. Optionors shall execute such other documents or instruments and take
such other actions requested by Optionee as may be necessary to effectuate the
purposes of this Agreement.
15. The representations and warranties set forth in this Agreement shall
survive the Closing until the Option Expiration Date.
16. To the extent, if any, required under the Limited Partnership Agreement
of LP, LP hereby consents to the granting and the assignment of the Option as
herein provided.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the day and year first above written.
OPTIONEE:
FIRST STATES GROUP, L.P.
By: FIRST STATES GROUP, LLC
By: AMERICAN FINANCIAL REALTY TRUST
By: _______________________
Name: Xxxxx Xxxxxxxxxx
Title: Vice President
OPTIONORS:
FIRST STATES PROPERTIES, L.P.
By: FIRST STATES PROPERTIES, INC.
By: _______________________
Name: Xxxxx Xxxxxxxxxx
Title: Vice President
FIRST STATES HOLDINGS, L.P.
By: FIRST STATES HOLDINGS, LLC
By: ______________________
Name: Xxxxx Xxxxxxxxxx
Title: Vice President
_______________________________
Xxxxxxxx X. Xxxxxxxx
_______________________________
Xxxxxx Xxxxxxx
ARLINGTON CEMETERY COMPANY
By:___________________________
Name: Xxxx Xxxx
Title: Vice President
FIRST STATES WILMINGTON, LLC
By:___________________________
Name: Xxxxx Xxxxxxxxxx
Title: Assistant Manager and Vice President
LP:
FIRST STATES WILMINGTON JV, L.P.
By: FIRST STATES WILMINGTON JV, LLC
By:_______________________
Name: Xxxxx Xxxxxxxxxx
Title: Assistant Manager
and Vice President
Optionee's Assignee:
FBR ASSET INVESTMENT CORPORATION
By: _______________________
Name:
Title:
EXHIBIT A
OPTIONOR
First States Properties, L.P.
000 Xxx Xxxxxxx
Xxxxxxxxxx, XX 00000
First States Holdings, L.P.
000 Xxx Xxxxxxx
Xxxxxxxxxx, XX 00000
Xxxxxxxx X. Xxxxxxxx
000 Xxx Xxxxxxx
Xxxxxxxxxx, XX 00000
Xxxxxx Xxxxxxx
Arbor Corp. Center
0 Xxxx Xxxxx Xxxxxx
Xxxxx, XX 00000
Arlington Cemetery Company
000 Xxx Xxxxxxx
Xxxxxxxxxx, XX 00000
First States Wilmington JV, LLC
000 Xxx Xxxxxxx
Xxxxxxxxxx, XX 00000
