Exhibit 10.32
FOURTH OMNIBUS AMENDMENT TO
LOAN DOCUMENTS
by and among
FIRST STATES INVESTORS 5000A, LLC
AMERICAN FINANCIAL REALTY TRUST
FIRST STATES GROUP, L.P., and
FIRST STATES MANAGEMENT CORP., L.P., each
having an address at
1725 The Fairway
Jenkintown, Pennsylvania 19046
LaSalle Bank National Association, as Trustee for GMAC Commercial Mortgage
Securities, Inc. Mortgage Pass-Through Certificates Series 2003-C3
having an address at
135 LaSalle Street, Chicago, IL 60603
and
PNC BANK, NATIONAL ASSOCIATION
having an address at
Two PNC Plaza, 31 st Floor, 620 Liberty Avenue, Pittsburgh, Pennsylvania 15222
This FOURTH OMNIBUS AMENDMENT TO LOAN DOCUMENTS, dated as of June 30,2006 (this “Agreement”), is by and among FIRST STATES INVESTORS 5000A, LLC, a Delaware limited liability company (together with its successors and assigns, “Borrower”), AMERICAN FINANCIAL REALTY TRUST, a Maryland real estate investment trust (together with its successors and assigns, “AFR”), FIRST STATES GROUP, L.P., a Delaware limited partnership (together with its successors and assigns, “FSG”); AFR and FSG are each referred to herein as a Guarantor and collectively as the “Guarantors”), FIRST STATES MANAGEMENT CORP., L.P., a Delaware limited partnership (together with its successors and assigns, “Manager”), each having a principal place of business and chief executive office c/o First States Group, L.P., 1725 The Fairway, Jenkintown, Pennsylvania 19046, PNC BANK, NATIONAL ASSOCIATION, having an address at Two PNC Plaza, 31st Floor, 620 Liberty Avenue, Pittsburgh, Pennsylvania 15222 (together with its successors and assigns, “Cash Management Bank”) and LaSalle Bank National Association, as trustee under the Pooling and Servicing Agreement dated December 1, 2003, for GMAC Commercial Mortgage Securities, Inc. Mortgage Pass-Through Certificates Series 2003-C3 in its capacity as the A1 Noteholder (as defined in the Intercreditor Agreements, defined below) for the benefit of the holders of the Notes in accordance with the terms of the Intercreditor Agreements, having an office at 135 LaSalle Street, Chicago, IL 60603 (together with all successors and assigns, as “Lender”).
W I T N E S S E T H
A.German American Capital Corporation (“Original Lender”) made a loan to Borrower in the original principal amount of $400,000,000.00 (the “Original Loan”) pursuant to the terms and conditions of that certain Loan and Security Agreement, dated as of June 30, 2003 between Borrower and Original Lender (the “First Original Loan Agreement”) .
B.The Original Loan was evidenced by that certain Note, dated as of June 30, 2003 (the “First Original Note”).
C.On October I, 2003, the Original Lender increased the amount of the First Original Note to $440,000,000.00 (the Original Loan, as increased, is hereinafter referred to as the “Loan”), pursuant to the terms and conditions of that certain Amended and Restated Loan and Security Agreement by and between Borrower and Original Lender (the First Original Loan Agreement, as amended, is hereinafter referred to as the “Original Loan Agreement”). The First Original Note was amended by that certain Consolidated Amended and Restated Note, dated as of October 1,2003 (the First Original Note, as amended, is hereinafter referred to as the “Original Note”) made by Borrower in favor of Original Lender.
D.Pursuant to Section 5.1.11 of the Original Loan Agreement, Borrower and Original Lender severed the Original Note into seven (7) substitute promissory notes in an aggregate principal amount equal to the amount of the Loan.
E.The Loan is currently evidenced by (I) that certain Promissory Note Al dated as of December 1, 2003, from Borrower to Original Lender in the original principal amount of $100,000,000 (“Note A1”); (2) that certain Promissory Note A2 dated as of December 1, 2003 from Borrower to Original Lender in the original principal amount of $75,000,000.00 (“Note A2”); (3) that certain Promissory Note A3 dated as of December 1, 2003 from Borrower to Original Lender in the original principal amount of $85,000,000.00 (“Note A3”); (4) that certain Amended and Restated Promissory Note A4 dated as of March 31, 2004 from Borrower to Original Lender in the original principal amount of $40,000,000.00 (“Note A4”); (5) that certain Promissory Note A5 dated as of March 31, 2004 from Borrower to Original Lender in the original principal amount of $20,000,000.00 (“Note A5”); (6) that certain Promissory Note A6 dated as of March 31, 2004 from Borrower to Original Lender in the original principal amount of $20,000,000.00 (“Note A6”); and (7) that certain Promissory Note B dated as of December 1, 2003 from Borrower to Original Lender in the original principal amount of $100,000,000.00 (“Note B”) (Note A1, Note A2, Note A3, Note A4, Note A5, Note A6 and Note Bare collectively hereinafter referred to as the “Notes”). The Loan is further evidenced or secured by various other documents executed by Borrower and others in favor of Original Lender (“Original Loan Documents”). The Original Loan Agreement and the Original Loan Documents were amended by: (i) that certain Omnibus Amendment to Loan Agreement dated as of October I, 2003 by and among Borrower, American Financial Realty Trust, First States Group, L.P., First States Management Corp., LLC and Original Lender; (ii) that certain Second Omnibus Amendment to Loan Documents, dated as of December 1, 2003 by and among Borrower, American Financial Realty Trust, First States Group, L.P., First States Management Corp., LLC, PNC Bank, National Association and Original Lender; (iii) that certain Third Omnibus Amendment to Loan Documents, dated as of March 31, 2004 by and among Borrower, American Financial Realty Trust, First States Group, L.P., First States Management Corp., LLC, PNC Bank, National Association and Lender; and (iv) that certain Fourth Omnibus Amendment to Loan Documents, dated of even date herewith by and among Borrower, American Financial Realty Trust, First States Group, L.P., First States Management Corp., L.P., PNC Bank, National Association and Lender (the Original Loan Agreement, as amended, is hereinafter referred to as the “Loan Agreement”) (the Original Loan Documents, as amended, collectively, with the Notes, the Loan Agreement and the Mortgage (as defined below), are hereinafter referred to as the “Loan Documents”).
F.The Loan and Notes are secured by that certain Combined Fee and Leasehold Multistate Mortgage, Deed to Secure Debt, Deed of Trust, Security Agreement, Financing Statement, Fixture Filing and Assignment of Leases, Rents and Security Deposits dated as of June 30, 2003, executed by Borrower for the benefit of Original Lender, as amended by that certain First Amendment to Combined Fee and Leasehold Multistate Mortgage, Deed to Secure Debt, Deed of Trust, Security Agreement, Financing Statement, Fixture Filing and Assignment of Leases, Rents and Security Deposits dated as of October I, 2003, executed by Borrower for the benefit of Original Lender (as amended, the “Mortgage”) granting to Original Lender, among other things, a lien on certain real property commonly known as 204 East Rush, Harrison, Arkansas, 1900 Tyler Street, Hollywood, Florida, 820 A Street, Tacoma, Washington and 401 Front St., Coeur D'Alene, Idaho, more particularly described in said Mortgage (the “Partial Defeasance Real Property”).
G.Original Lender assigned all of its right, title and interest in the Note Al and Note B and the documents evidencing and securing Note Al and Note B to Note Al and Note B Lender.
H.Original Lender assigned all of its right, title and interest in Note A2 and the documents evidencing and securing Note A2 to Wells Fargo Bank, N.A. as Trustee for GE Commercial Mortgage Corporation, Commercial Mortgage Pass-Through Certificates, Series 2004-CI (the “Note A2 Lender”).
I.Original Lender assigned all of its right, title and interest in Note A3 and the documents evidencing and securing Note A3 to Wells Fargo Bank, N.A. as Trustee for Deutsche Mortgage & Asset Receiving Corporation, Commercial Mortgage Pass-Through Certificates, Series COMM 2004-LNB2 (the “Note A3 Lender”).
J.Original Lender assigned all of its right, title and interest in Note A4 and the documents evidencing and securing Note A4 to Wells Fargo Bank, N.A. as Trustee for GMAC Commercial Mortgage Securities, Inc., Mortgage Pass-Through Certificates, Series 2004-CI (the “Note A4 Lender”).
K.Original Lender assigned all of its right, title and interest in Note AS and the documents evidencing and securing Note AS to LaSalle Bank National Association as Trustee for GE Commercial Mortgage Corporation, Commercial Mortgage Pass-Through Certificates, Series 2004-C2 (the “Note A5 Lender”).
L.Original Lender assigned all of its right, title and interest in Note A6 and the documents evidencing and securing Note A6 to Wells Fargo Bank, N.A., as Trustee for Deutsche Mortgage & Asset Receiving Corporation Commercial Mortgage Pass-Through Certificates Series COMM 2004-LNB3 (the “Note A6 Lender”).
M.Note Al and Note B Lender acts as Trustee pursuant to the terms of the Pooling and Servicing Agreement and, in its capacity as the A I Noteholder, is authorized to administer the Loan in accordance with the terms of the Pooling and Servicing Agreement and the Intercreditor Agreements. For purposes hereof, the term “Intercreditor Agreements” shall mean: (i) that certain A Notes Intercreditor Agreement, dated as of December 18,2003 by and
among German American Capital Corporation, as A-I Noteholder, German American Capital Corporation, as A-2 Noteholder, German American Capital Corporation, as A-3 Noteholder and German American Capital Corporation, as A-4 Noteholder, as supplemented by that certain Supplement dated as of March 31, 2004 by and among LaSalle Bank National Association, as AI Noteholder and Wells Fargo Bank, N.A., as A2 Noteholder and A3 Noteholder and acknowledged by German American Capital Corporation, individually in its capacity as initial holder of the A4 Note, A5 Note and A6 Note, and (ii) the Agreement among Noteholders dated as of December 18,2003 by and between German American Capital Corporation, as Initial Note A Holder, and German American Capital Corporation, as Initial Note B Holder, as amended by that certain First Amendment to Agreement among Noteholders dated as of March 31, 2004 by and among LaSalle Bank National Association, as Note A-I Holder and Note B Holder, Wells Fargo Bank, N.A., as Note A-2 Holder and Note A-3 Holder, and German American Capital Corporation, individually in its capacity as initial holder of Note A-4, Note A-5 and Note A-6. Servicer acts as the Master Servicer and Serviced Companion Loan Paying Agent pursuant to the Pooling and Servicing Agreement.
N.Pursuant to the Loan Documents, Borrower has directed the Note A1 and Note B Lender to release the lien of the Mortgage on the Partial Defeasance Real Property upon Borrower's partial defeasance of the Loan (the “Partial Defeasance”).
O.In conjunction with the Partial Defeasance of the Loan, the Notes have been amended by the following (the “First Defeasance Amendments to Notes”): (x) the First Defeasance Amendment to Note A1 of even date herewith by and between Borrower and Note A1 and Note B Lender, which evidences the undefeased portion of the Note A1; (y) the First Defeasance Amendment to Note A2 of even date herewith by and between Borrower and Note A2 Lender, which evidences the undefeased portion of the Note A2; (z) the First Defeasance Amendment to Note A3 of even date herewith by and between Borrower and Note A3 Lender, which evidences the undefeased portion of the Note A3; (aa) the First Defeasance Amendment to Note A4 of even date herewith by and between Borrower and Note A4 Lender, which evidences the undefeased portion of the Note A4; (bb) the First Defeasance Amendment to Note A5 of even date herewith by and between Borrower and Note A5 Lender, which evidences the undefeased portion of the Note A5; (cc) the First Defeasance Amendment to Note A6 of even date herewith by and between Borrower and Note A6 Lender, which evidences the undefeased portion of the Note A6; and (dd) the First Defeasance Amendment to Note B of even date herewith by and between Borrower and Note A1 and Note B Lender, which evidences the undefeased portion of the Note B.
P.Borrower, Cash Management Bank, Manager, Guarantors and Lender desire to amend the terms of the Loan Documents (as defined in the Loan Agreement) to reflect the Partial Defeasance; and
Q.Borrower, Guarantors, Manager, Cash Management Bank and Lender intend that these Recitals be a material part of this Agreement.
NOW, THEREFORE, in consideration of the foregoing premises, ten dollars ($10.00) paid in hand by Lender to Borrower, Manager, Cash Management Bank and each Guarantor and other good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Borrower, Manager, Cash Management Bank, Guarantors and Lender hereby agree as follows:
Section 2. Document References. All references in any Loan Document to the “Note” shall be deemed to be a reference to the Notes, as amended by the First Defeasance Amendments to Notes.
Section 3. Monthly Amount, Principal Amount. All references to (i) “Monthly Amount” in any of the Loan Documents shall mean the sum of the “Monthly Amount” payable under each of the promissory notes constituting the Notes, as amended by the First Defeasance Amendments to Notes; and (b) “Principal Amount” in any of the Loan Documents shall mean the sum of the “Principal Amount” outstanding under each of the promissory notes constituting the Notes, as amended by the First Defeasance Amendments to Notes.
Section 4. Fee Parcels. The Partial Defeasance Real Property has been released from the lien of the Mortgage, which lien shall remain in full force and effect with respect to the remaining Property.
Section 5. Representations and Warranties. Borrower, Manager, Cash Management Bank and each Guarantor represent and warrant that each of its representations and warranties contained in any of the Loan Documents to which it is a party are true and correct in all material respects as of the date hereof (except to the extent that such representations and warranties expressly relate to an earlier date).
Section 6. Full Force and Effect. Except as amended by this Agreement, each of the Loan Documents shall continue to remain in full force and effect. Notwithstanding anything to the contrary, this Agreement shall not amend the Notes, as amended by the First Defeasance Amendments to Notes, and the Notes, as amended by the First Defeasance Amendments to Notes, shall continue to remain unmodified and in full force and effect.
Section 7. Ratification. Each Guarantor hereby reaffirms each of its obligations under that certain (i) Guaranty of Recourse Obligations and (ii) Environmental Indemnity, each dated as of June 30, 2003, as amended, and confirms that such obligations shall apply and relate in all respects to the Loan and the Loan Documents as amended by this Agreement and the Notes, as amended by the First Defeasance Amendments to Notes.
Section 8. Headings. Each of the captions contained in this Agreement are for the convenience of reference only and shall not define or limit the provisions hereof.
Section 9. Governing Law. This Agreement shall be governed by the laws of the State of New York, without regard to choice of law rules.
Section 10. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall constitute an original and all of which when taken together shall constitute one binding agreement.
Section 11. Severability. The provisions of this Agreement are severable, and if any one clause or provision hereof shall be held invalid or unenforeceable in whole or in part, then
such invalidity or unenforceablity shall affect only such clause or provision, or part thereof, and not any other clause or provision of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have entered into this Agreement on the date first above written.
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| FIRST STATES INVESTORS 5000A, LLC, |
| a Delaware limited liability company |
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By: /s/Glenn Blumenthal |
| Name: Glenn Blumenthal |
| Title: Vice President |
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| AMERICAN FINANCIAL REALTY TRUST, |
| a Maryland real estate investment trust |
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By: /s/Glenn Blumenthal |
| Name: Glenn Blumenthal |
| Title: Executive Vice President |
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| FIRST STATES GROUP, L.P. |
| a Delaware limited partnership |
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| By: First States Group, LLC, |
| a Delaware limited liability company |
| its General Partner |
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By: /s/Glenn Blumenthal |
| Name: Glenn Blumenthal |
| Title: Executive Vice President |
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| FIRST STATES MANGEMENT CORP, L.P. |
| A Delaware limited partnership |
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| By: First States Management, LLC, a Delaware |
| limited liability company, its General Partner |
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By: /s/Glenn Blumenthal |
| Name: Glenn Blumenthal |
| Title: Vice President |
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LASALLE BANK NATIONAL ASSOCIATION, as |
| trustee for GMAC Commercial Mortgage |
| Securities, Inc., Mortgage Pass-Through |
| Certificates, Series 2003-C3, in its capacity as the |
| A1 Noteholder for the benefit of the holders of the |
| Notes in accordance with the terms of the |
| Intercreditor Agreements |
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| By: Capmark Finance Inc., a California |
| corporation, its authorized agent |
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By: /s/Jillian M. Brittin [SEAL] |
| Name: Jillian M. Brittin |
| Title: Vice President |
ACCEPTED, ACKNOWLEDGED AND AGREED TO BY
PNC BANK, NATIONAL ASSOCIATION SOLELY WITH
RESPECT TO SECTIONS 1 AND 2 HEREOF AND AS THIS
AGREEMENT MODIFIES THE TERMS OF THAT
CERTAIN ACCOUNT AND CONTROL AGREEMENT,
DATED AS OF JUNE 30, 2003, BY BORROWER, LENDER
AND PNC BANK, NATIONAL ASSOCIATION:
PNC BANK, NATIONAL ASSOCIATION
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By: /s/ Nancy Mirfin |
| Name: Nancy Mirfin |
| Title: Vice President |
ACKNOWLEDGMENTS
First States Investors 5000A, LLC
COMMONWEALTH OF PENNSYLVANIA )
) ss.
COUNTY OF MONTGOMERY )
On the 27th day of June in the year 2006 before me, the undersigned, a notary public in and for said state, personally appeared Glenn Blumenthal, personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity, and that by his signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument.
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| /s/ Christine E. Hoffman |
| Notary Public |
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| [Notary Seal] | My commission expires: August 5, 2009 |
First States Group, L.P.
COMMONWEALTH OF PENNSYLVANIA )
) ss.
COUNTY OF MONTGOMERY )
On the 27th day of June in the year 2006 before me, the undersigned, a notary public in and for said state, personally appeared Glenn Blumenthal, personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity, and that by his signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument.
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| /s/ Christine E. Hoffman |
| Notary Public |
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| [Notary Seal] | My commission expires: August 5, 2009 |
American Financial Realty Trust
COMMONWEALTH OF PENNSYLVANIA )
) ss.
COUNTY OF MONTGOMERY )
On the 27th day of June in the year 2006 before me, the undersigned, a notary public in and for said state, personally appeared Glenn Blumenthal, personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity, and that by his signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument.
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| /s/ Christine E. Hoffman |
| Notary Public |
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| [Notary Seal] | My commission expires: August 5, 2009 |
First States Management Corp., L.P.
COMMONWEALTH OF PENNSYLVANIA )
) ss.
COUNTY OF MONTGOMERY )
On the 27th day of June in the year 2006 before me, the undersigned, a notary public in and for said state, personally appeared Glenn Blumenthal, personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity, and that by his signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument.
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| /s/ Christine E. Hoffman |
| Notary Public |
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| [Notary Seal] | My commission expires: August 5, 2009 |
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| COMMONWEALTH OF PENNSYLVANIA ) | | |
| ) ss. | | |
| COUNTY OF MONTGOMERY ) | | |
On the 27th day of June in the year 2006 before me, the undersigned, a notary public in and for said state, personally appeared Jillian M. Brittin, personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity, and that by his signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument.
/s/ Margaret Powers
Notary Public
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| [Notary Seal] | My commission expires: July 23, 2009 |
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| COMMONWEALTH OF PENNSYLVANIA ) | | |
| ) ss. | | |
| COUNTY OF MONTGOMERY ) | | |
On the 27th day of June in the year 2006 before me, the undersigned, a notary public in and for said state, personally appeared Jillian M. Brittin, personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that she/he executed the same in his/her capacity, and that by his/her signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument.
/s/ Margaret Powers
Notary Public
