-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, PTRQiqn3Xot5WpfvwY/cdCymNLPMeVIab1mDVKiXuXV6pbYqm9RDsTnHkNqfdUNT z+Leaggk0GVbhiJVmPSeCA== /in/edgar/work/0000912057-00-043006/0000912057-00-043006.txt : 20000930 0000912057-00-043006.hdr.sgml : 20000930 ACCESSION NUMBER: 0000912057-00-043006 CONFORMED SUBMISSION TYPE: SC 13E3 PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20000928 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: PEREGRINE REAL ESTATE TRUST CENTRAL INDEX KEY: 0000314485 STANDARD INDUSTRIAL CLASSIFICATION: [6798 ] IRS NUMBER: 942255677 STATE OF INCORPORATION: CA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13E3 SEC ACT: SEC FILE NUMBER: 005-43455 FILM NUMBER: 731280 BUSINESS ADDRESS: STREET 1: 1300 ETHAN WAY, STE 200 CITY: SACRAMENTO STATE: CA ZIP: 95825 BUSINESS PHONE: 9169298244 MAIL ADDRESS: STREET 1: 1300 EATHAN WAY SUITE 200 STREET 2: 705 UNIVERSITY AVE CITY: SACRAMENTO STATE: CA ZIP: 95825 FORMER COMPANY: FORMER CONFORMED NAME: COMMONWEALTH EQUITY TRUST DATE OF NAME CHANGE: 19920703 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: PEREGRINE REAL ESTATE TRUST CENTRAL INDEX KEY: 0000314485 STANDARD INDUSTRIAL CLASSIFICATION: [6798 ] IRS NUMBER: 942255677 STATE OF INCORPORATION: CA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13E3 BUSINESS ADDRESS: STREET 1: 1300 ETHAN WAY, STE 200 CITY: SACRAMENTO STATE: CA ZIP: 95825 BUSINESS PHONE: 9169298244 MAIL ADDRESS: STREET 1: 1300 EATHAN WAY SUITE 200 STREET 2: 705 UNIVERSITY AVE CITY: SACRAMENTO STATE: CA ZIP: 95825 FORMER COMPANY: FORMER CONFORMED NAME: COMMONWEALTH EQUITY TRUST DATE OF NAME CHANGE: 19920703 SC 13E3 1 a2026317zsc13e3.txt SC 13E3 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 28, 2000 SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 SCHEDULE 13E-3 Rule 13e-3 Transaction Statement (Pursuant to Section 13(e) of the Securities Exchange Act of 1934) THE PEREGRINE REAL ESTATE TRUST (Name of Issuer) THE PEREGRINE REAL ESTATE TRUST WINSHIP PROPERTIES TCW SPECIAL CREDITS FUND IV TCW SPECIAL CREDITS PLUS FUND TCW SPECIAL CREDITS TRUST IV TCW SPECIAL CREDITS TRUST IVA TRUST COMPANY OF THE WEST TCW ASSET MANAGEMENT COMPANY TCW SPECIAL CREDITS OCM REAL ESTATE OPPORTUNITIES FUND A, L.P. OCM REAL ESTATE OPPORTUNITIES FUND B, L.P. THE PRUDENTIAL INSURANCE COMPANY OF AMERICA GATEWAY RECOVERY TRUST (Name of Person(s) Filing Statement) Common Stock, $.01 Par Value per Share (Title of Class of Securities) 45631G-10-6 (CUSIP Number of Class of Securities) Roger Snell The Peregrine Real Estate Trust 1300 Ethan Way Suite 200 Sacramento, California 95825 (916) 929-8244 With a copy to: Deborah Baumgart Milbank, Tweed, Hadley & McCloy LLP 601 So. Figueroa Street 30th Floor Los Angeles, California 90017 (213) 892-4000 (Name, Address and Telephone Number of Persons Authorized to Receive Notices and Communications on Behalf of Person(s) Filing Statement) This statement is filed in connection with (check the appropriate box): a. [X] The filing of solicitation materials or an information statement subject to Regulation 14A, Regulation 14C or Rule 13e-3(c) under the Securities Exchange Act of 1934. b. [ ] The filing of a registration statement under the Securities Act of 1933. c. [ ] A tender offer. d. [ ] None of the above. Check the following box if the soliciting materials or information statement referred to in checking box (a) are preliminary copies:[X] CALCULATION OF FILING FEE - --------------------------------------------------------------------------------
Transaction Valuation* Amount of Filing Fee ---------------------- -------------------- $1,368,780 $273.75
* Determined by multiplying 2,319,915 (the number of outstanding shares of the Common Stock of the Peregrine Real Estate Trust not owned by Oaktree, TCW, Prudential or their Affiliates) by $0.59 per share and adding the aggregate amount anticipated to be paid to certain persons holding options to purchase shares of the Common Stock of the Peregrine Real Estate Trust in consideration of the cancellation of such options. [X] Check box if any part of the fee is offset as provided by Rule 0-11(a)(2) and identify the filing with which the offsetting fee was previously paid. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing. Amount Previously Paid: $273.75 Form or Registration Number: Schedule 14C Filing Party: The Peregrine Real Estate Trust Winship Properties TCW Special Credits Fund IV TCW Special Credits Plus Fund TCW Special Credits Trust IV TCW Special Credits Trust IVA Trust Company of the West TCW Asset Management Company TCW Special Credits OCM Real Estate Opportunities Fund A, L.P. OCM Real Estate Opportunities Fund B, L.P. The Prudential Insurance Company of America Gateway Recovery Trust Date Filed: September 28, 2000 This Rule 13e-3 Transaction Statement (this "Statement") is being filed concurrently with the filing of a preliminary information statement pursuant to 2 Regulation 14C under the Securities Exchange Act of 1934 (the "Information Statement"). The underlying Rule 13e-3 transaction relates to an Agreement and Plan of Merger, dated as of September 26, 2000 (the "Merger Agreement"), by and between The Peregrine Real Estate Trust, a California real estate investment trust (the "Trust" or "Peregrine"), and The Winship Real Estate Trust, a California real estate investment trust ("New Winship"). The Merger Agreement provides for the merger (the "Merger") of the Trust with and into New WinShip, with New WinShip as the trust surviving the Merger. New WinShip was formed by TCW Special Credits Fund IV, TCW Special Credits Plus Fund, TCW Special Credits Trust IV, TCW Special Credits Trust IVA, and TCW Special Credits, as investment manager of the Weyerhaeuser Company Master Retirement Trust Separate Account (collectively, "TCW"), and OCM Real Estate Opportunities Fund A, L.P., OCM Real Estate Opportunities Fund B, L.P., and Oaktree Capital Management, LLC as investment manager of Gryphon Domestic VII LLC's separate account (collectively, "Oaktree"), in connection with the Merger. Oaktree, TCW and The Prudential Insurance Company of America and Gateway Recovery Trust (collectively, "Prudential" and together with Oaktree and TCW, the "Majority Shareholders") currently beneficially own approximately 89.7% of the outstanding shares of common stock, par value $0.01 per share, of Peregrine, representing approximately 89.7% of the voting power of the shareholders of Peregrine. It is contemplated that the Majority Shareholders will contribute all of the Peregrine common shares owned by them to New WinShip prior to the consummation of the Merger. Oaktree and TCW have proposed, and Prudential has agreed to vote for, the Merger in order to purchase all of the Peregrine common shares that are not held by New WinShip or the Majority Shareholders (the "Nonaffiliated Shares"). The Merger will cause New WinShip, as successor by merger to Peregrine, to be privately owned, which TCW and Oaktree believe will advance Peregrine's long-term strategy and will be beneficial from a cost standpoint as well as from the standpoint of employee relations. TCW and Oaktree sought to structure the transaction as a Merger because it would most efficiently accomplish the objectives of the Majority Shareholders to acquire the Nonaffiliated Shares. Upon the consummation of the Merger, there will be no public market for Peregrine's common shares and holders of the Nonaffiliated Shares will receive $0.59 per share in cash. In addition, registration of Peregrine's common shares will be terminated and Peregrine will no longer be required to file periodic reports with the Securities and Exchange Commission. This Schedule 13E-3 is being jointly filed by (i) Peregrine (the issuer of the class of equity securities that is the subject of the transaction); (ii) New WinShip, (iii) TCW Special Credits Fund IV ("Fund IV"); (iv) TCW Special Credits Plus Fund (the "Plus Fund" and together with Fund IV the "Special Credits Limited Partnerships"); (v) TCW Special Credits Trust IV ("Trust IV"); (vi) TCW Special Credits Trust IVA ("Trust IVA" and together with Trust IV the "Special Credits Trusts"); (vii) Trust Company of the West ("TCW"), a California corporation and wholly-owned subsidiary of TCW Group Inc., a Nevada corporation ("TCWG"); (viii) TCW Asset Management Company, a California corporation and wholly-owned subsidiary of TCWG ("TAMCO"); (ix) TCW Special Credits, a California general 3 partnership of which TAMCO is the managing general partner ("Special Credits"); (x) OCM Real Estate Opportunities Fund A, L.P., a Delaware limited partnership; (xi) OCM Real Estate Opportunities Fund B, L.P., a Delaware limited partnership; (xii) The Prudential Insurance Company of America; and (xiii) Gateway Recovery Trust. Concurrently with the filing of this Schedule 13E-3, the Company is filing with the Securities and Exchange Commission an information statement (the "Information Statement") under Regulation 14C of the Securities Exchange Act of 1934, as amended (the "Exchange Act"). A copy of the Information Statement is attached hereto as Exhibit (a)(1) and a copy of the Merger Agreement is attached as Exhibit A to the Information Statement. All references in this Schedule 13E-3 to Items numbered 1001 through 1016 are references to Items contained in Regulation M-A under the Exchange Act. The information contained in the Information Statement, including all annexes thereto, is hereby expressly incorporated herein by reference. As of the date hereof, the Information Statement is in preliminary form and is subject to completion or amendment. Capitalized terms used but not defined in this Schedule 13E-3 shall have the meanings given to them in the Information Statement. The information contained in this Schedule 13E-3 and/or Information Statement concerning Peregrine was supplied by Peregrine and none of the other filing persons takes responsibility for the accuracy of such information. Similarly, the information contained in this Schedule 13E-3 and/or the Information Statement concerning each filing person other than Peregrine was supplied by each such filing person and no other filing person, including Peregrine, takes responsibility for the accuracy of any information not supplied by such filing person. ITEM 1. SUMMARY TERM SHEET. The information contained in the sections entitled "QUESTIONS AND ANSWERS ABOUT THE MERGER" in the Information Statement is incorporated herein by reference. ITEM 2. SUBJECT COMPANY INFORMATION (a) Name and Address. The information contained in the section entitled "SUMMARY--The Parties" in the Information Statement is incorporated herein by reference. (b) Securities. The information contained in the section entitled "SPECIAL FACTORS REGARDING THE MERGER--Required Vote For Merger; Written Consent In Lieu Of Meeting" in the Information Statement is incorporated herein by reference. (c) Trading Market and Price. The information contained in the section entitled "SUMMARY--Market" in the 4 Information Statement is incorporated herein by reference. (d) Dividends. The information contained in the section entitled "SUMMARY--Cash Dividends" in the Information Statement is incorporated herein by reference. (e) Prior Public Offerings. None. (f) Prior Stock Purchases. The information contained in the section entitled "COMMON SHARES PURCHASE INFORMATION" in the Information Statement is incorporated herein by reference. ITEM 3. IDENTITY AND BACKGROUND (a),(c) Name and Address; Business and Background of Natural Persons. The information contained in the sections entitled "SUMMARY--The Parties," "CERTAIN INFORMATION REGARDING PEREGRINE," "CERTAIN INFORMATION REGARDING NEW WINSHIP," "CERTAIN INFORMATION REGARDING THE MAJORITY SHAREHOLDERS," "SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT" and "TRUSTEES AND EXECUTIVE OFFICERS OF PEREGRINE" in the Information Statement is incorporated herein by reference. During the last five years, to the best knowledge of Peregrine, none of Peregrine's current directors or executive officers has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or has been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining further violations of, or prohibiting activities subject to, federal or state securities laws or finding any violation of such laws. All current Peregrine directors and executive officers are U.S. citizens. Peregrine, one of the filing persons, is also the subject company. (b) Business and Background of Entities. The information contained in the sections entitled "SUMMARY--The Parties" and "CERTAIN INFORMATION REGARDING THE MAJORITY SHAREHOLDERS" in the Information Statement is incorporated herein by reference. ITEM 4 TERMS OF THE TRANSACTION. (a)(1) Tender Offers. Not applicable. (a)(2)(i) Transaction Description. The information contained in the sections entitled "QUESTIONS AND ANSWERS ABOUT 5 THE MERGER," "SUMMARY," and "THE MERGER AGREEMENT" in the Information Statement is incorporated herein by reference. (a)(2)(ii) Consideration. The information contained in the sections entitled "QUESTIONS AND ANSWERS ABOUT THE MERGER," "SUMMARY--Purpose, Background and Effect of Merger," and "THE MERGER AGREEMENT--Consideration to be Paid in the Merger" in the Information Statement is incorporated herein by reference. (a)(2)(iii) Reasons for Transaction. The information contained in the sections entitled "SPECIAL FACTORS--Background of the Merger" and "--The Majority Shareholders' Purpose and Reasons for the Merger" in the Information Statement is incorporated herein by reference. (a)(2)(iv) Vote Required for Approval. The information contained in the section entitled "SPECIAL FACTORS REGARDING THE MERGER--Required Vote for the Merger; Written Consent in Lieu of Meeting" in the Information Statement is incorporated herein by reference. (a)(2)(v) Differences in the Rights of Security Holders. The information contained in the section entitled "SPECIAL FACTORS REGARDING THE MERGER--Interests of Certain Persons in the Merger" in the Information Statement is incorporated herein by reference. (a)(2)(vi) Accounting Treatment. The information contained in the section entitled "SPECIAL FACTORS REGARDING THE MERGER--Accounting Treatment" in the Information Statement is incorporated herein by reference. (a)(2)(vii) Income Tax Consequences. The information contained in the section entitled "SPECIAL FACTORS REGARDING THE MERGER--Material Federal Income Tax Consequences" in the Information Statement is incorporated herein by reference. (c) Different Terms. The information contained in the section entitled "SPECIAL FACTORS REGARDING THE MERGER--Additional Interests of Certain Persons in the Merger" in the Information Statement is incorporated herein by reference. (d) Appraisal Rights. The information contained in the section entitled "NO DISSENTERS' RIGHTS" in the Information Statement is incorporated herein by reference. (e) Provisions For Unaffiliated Security Holders. Peregrine has made no provisions in connection with the Merger to 6 grant unaffiliated security holders access to the corporate files of Peregrine or to obtain counsel or appraisal services at the expense of Peregrine. (f) Eligibility for Listing or Trading. Not applicable. ITEM 5 PAST CONTACTS, TRANSACTIONS, NEGOTIATIONS AND AGREEMENTS (a) Transactions. None. (b), (c) Significant Corporate Events; Negotiations or Contacts. The information contained in the sections entitled "SPECIAL FACTORS REGARDING THE MERGER--Background of the Merger" and "CERTAIN TRANSACTIONS" in the Information Statement is incorporated herein by reference. (e) Agreements Involving the Subject Company's Securities. The information contained in the sections entitled "SPECIAL FACTORS REGARDING THE MERGER--Background of the Merger," "CERTAIN TRANSACTIONS" and "--Interests of Certain Persons in the Merger" in the Information Statement is incorporated herein by reference. ITEM 6 PURPOSES OF THE TRANSACTION AND PLANS OR PROPOSALS. (b) Use of Securities Acquired. The information contained in the sections entitled "SUMMARY" and "SPECIAL FACTORS REGARDING THE MERGER--Certain Effects of the Merger" in the Information Statement is incorporated herein by reference. (c) Plans. The information contained in the sections entitled "SUMMARY" and "SPECIAL FACTORS REGARDING THE MERGER--Background of the Merger" and "CERTAIN RELATIONSHIPS" in the Information Statement is incorporated herein by reference. ITEM 7 PURPOSES, ALTERNATIVES, REASONS AND EFFECTS (a), (c) Purposes; Reasons. The information contained in the sections entitled "QUESTIONS AND ANSWERS ABOUT THE MERGER," "SPECIAL FACTORS REGARDING THE MERGER--Background of the Merger," "--The Majority Shareholders' Purpose and Reasons for the Merger," "--Certain Effects of the Merger" and "--Financing of the Merger" in the Information Statement is incorporated herein by reference. 7 (b) Alternatives. The information contained in the section entitled "SPECIAL FACTORS REGARDING THE MERGER--Background of the Merger" in the Information Statement is incorporated herein by reference. (d) Effects. The information contained in the sections entitled "QUESTIONS AND ANSWERS ABOUT THE MERGER," "SUMMARY," "SPECIAL FACTORS REGARDING THE MERGER--The Majority Shareholders' Purpose and Reasons for the Merger," "--Interests of Certain Persons in the Merger," "--Financing of the Merger," "--Estimated Fees and Expenses," "--Material Federal Income Tax Consequences," "--Certain Effects of the Merger" and "THE MERGER AGREEMENT" in the Information Statement is incorporated herein by reference. ITEM 8 FAIRNESS OF THE TRANSACTION. (a), (b) Fairness; Factors Considered in Determining Fairness. The information contained in the sections entitled "QUESTIONS AND ANSWERS ABOUT THE MERGER," "SUMMARY," "SPECIAL FACTORS REGARDING THE MERGER--Background of the Merger," "--The Majority Shareholders' Purpose and Reasons for the Merger" and "--Opinion of Financial Adviser" in the Information Statement and Appendix B"--Opinion of Duff & Phelps, LLC" is incorporated herein by reference. (c) Approval of Security Holders. The information contained in the sections entitled "SPECIAL FACTORS REGARDING THE MERGER--The Majority Shareholders' Purpose and Reasons for the Merger," and "THE SPECIAL MEETING--Required Vote for the Merger; Written Consent in Lieu of Meeting" in the Information Statement is incorporated herein by reference. (d) Unaffiliated Representative. The information contained in the section entitled "SPECIAL FACTORS REGARDING THE MERGER--Background of the Merger" in the Information Statement is incorporated herein by reference. (e) Approval of Directors. The information contained in the section entitled "SPECIAL FACTORS REGARDING THE MERGER--Background of the Merger" in the Information Statement is incorporated herein by reference. (f) Other Offers. The information contained in the sections entitled "SPECIAL FACTORS REGARDING THE 8 MERGER--Background of the Merger" and "--The Majority Shareholders' Purpose and Reasons for the Merger" in the Information Statement is incorporated herein by reference. ITEM 9 REPORTS, OPINIONS, APPRAISALS AND NEGOTIATIONS. (a)-(c) Report, Opinion, or Appraisal; Preparer and Summary of the report; Availability of Documents. The information contained in the sections entitled "SPECIAL FACTORS REGARDING THE MERGER--Background of the Merger," "--The Majority Shareholders' Purpose and Reasons for the Merger," "--Opinion of Financial Adviser," and "WHERE YOU CAN FIND MORE INFORMATION" in the Information Statement and Appendix B "--Opinion of Duff & Phelps, LLC" is incorporated herein by reference. ITEM 10 SOURCE AND AMOUNTS OF FUNDS OR OTHER CONSIDERATION. (a), (b), (d) Source of Funds; Conditions; Borrowed Funds. The information contained in the section entitled "SPECIAL FACTORS REGARDING THE MERGER--Financing of the Merger" in the Information Statement is incorporated herein by reference. (c) Expenses. The information contained in the section entitled "ESTIMATED FEES AND EXPENSES OF THE MERGER" in the Information Statement is incorporated herein by reference. ITEM 11 INTEREST IN SECURITIES OF THE SUBJECT COMPANY (a) Securities Ownership. The information contained in the section entitled "SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT" in the Information Statement is incorporated herein by reference. (b) Securities Transactions. None ITEM 12 THE SOLICITATION OR RECOMMENDATION. (d) Intent to Tender or Vote in a Going-Private Transaction. The information contained in the sections entitled "SUMMARY" and "SPECIAL FACTORS REGARDING THE MERGER--Required Vote for Merger; Written Consent in Lieu of Meeting" in the Information Statement is incorporated herein by reference. (e) Recommendations to Others. None. 9 ITEM 13 FINANCIAL STATEMENTS. (a) Financial Information. The information contained in the section entitled "SELECTED FINANCIAL DATA" in the Information Statement is incorporated herein by reference. (B) Pro Forma Information. The information contained in the section entitled "SELECTED FINANCIAL DATA" in the Information Statement is incorporated herein by reference. ITEM 14 PERSONS/ASSETS, RETAINED, EMPLOYED, COMPENSATED OR USED. (a), (b) Solicitations or Recommendations; Employees and Corporate Assets. The information contained in the sections entitled "QUESTIONS AND ANSWERS ABOUT THE MERGER," "SUMMARY," "SPECIAL FACTORS REGARDING THE MERGER--Background of the Merger" and "--Estimated Fees and Expenses of the Merger" in the Information Statement is incorporated herein by reference. ITEM 15 ADDITIONAL INFORMATION (b) Other Material Information. None. ITEM 16 EXHIBITS (a) Preliminary information statement on Schedule 14C filed with the Securities and Exchange Commission on September 28, 2000 (incorporated herein by reference to the Information Statement). (c) Opinion of Duff & Phelps, LLC dated September 1, 2000 (incorporated herein by reference to Appendix B to the Information Statement). (d) Agreement and Plan of Merger, dated as of September 26, 2000 (incorporated herein by reference to Appendix A to the Information Statement. (d) Shareholders' Agreement, dated as of May 26, 2000 by and between The Prudential Insurance Company of America, Gateway Recovery Trust, TCW Special Credits Fund IV, TCW Special Credit Plus Fund, TCW Special Credits Trust IV, TCW Special Credits Trust IVA, TCW Special Credits, as investment manager of the Weyerhaeuser Company Master Retirement Trust Separate Account, OCM Real Estate Opportunities Fund A, L.P., OCM Real Estate Opportunities Fund B, L.P., and Oaktree Capital Management, LLC as investment manager of Gryphon Domestic VII, LLC Separate Account. CAUTIONARY STATEMENT CONCERNING FORWARD-LOOKING INFORMATION This Schedule 13E-3 includes and incorporates by reference statements that are not historical facts. These forward-looking statements are based on our current estimates and assumptions and, as such, involve uncertainty and risk. Forward-looking statements include the information concerning our possible or assumed future results of operations and also include those preceded or followed by the words "anticipates," "believes," "estimates," "expects," "should," "could," "targets" and "may" or similar expressions. For each of these statements, we claim the protection of the safe harbor for forward-looking statements contained the Private Securities Litigation Reform Act of 10 1995. The forward-looking statements are not guarantees of future performance, and actual results may differ materially from those contemplated by such forward-looking statements. Except to the extent required under the federal securities laws, we do not intend to update or revise the forward-looking statements to reflect circumstances arising after the date of the preparation of the forward-looking statements. 11 SIGNATURE After due inquiry and to the best of our knowledge and belief, the undersigned certify that the information set forth in this statement is true, complete and correct. Dated as of the 27th of September 2000 THE PEREGRINE REAL ESTATE TRUST By: /s/ Roger D. Snell --------------------------------------------- Title: President and CEO WINSHIP PROPERTIES By: /s/ Roger D. Snell --------------------------------------------- President TRUST COMPANY OF THE WEST By: /s/ Kenneth Liang --------------------------------------------- Kenneth Liang, Authorized Signatory TCW ASSET MANAGEMENT COMPANY By: /s/ Kenneth Liang --------------------------------------------- Kenneth Liang, Authorized Signatory TCW SPECIAL CREDITS By: /s/ Kenneth Liang --------------------------------------------- Kenneth Liang, Authorized Signatory of TCW Asset Management Company, the Managing General Partner of TCW Special Credits 12 TCW SPECIAL CREDITS FUND IV By: /s/ Kenneth Liang --------------------------------------------- Kenneth Liang, Authorized Signatory of TCW Asset Management Company, the Managing General Partner of TCW Special Credits, the General Partner of TCW Special Credits Fund IV TCW SPECIAL CREDITS PLUS FUND By: /s/ Kenneth Liang --------------------------------------------- Kenneth Liang, Authorized Signatory of TCW Asset Management Company, the Managing General Partner of TCW Special Credits, the General Partner of TCW Special Credits Plus Fund TCW SPECIAL CREDITS TRUST IV By: /s/ Kenneth Liang --------------------------------------------- Kenneth Liang, Authorized Signatory of Trust Company of the West, the trustee of TCW Special Credits Trust IV TCW SPECIAL CREDITS TRUST IVA By: /s/ Kenneth Liang --------------------------------------------- Kenneth Liang, Authorized Signatory of Trust Company of the West, the trustee of TCW Special Credits Trust IVA 13 OCM REAL ESTATE OPPORTUNITIES FUND A, L.P. By: /s/ Kenneth Liang --------------------------------------------- Kenneth Liang Managing Director and General Counsel of Oaktree Capital Management, LLC, the General Partner of OCM Real Estate Opportunities Fund A, L.P. OCM REAL ESTATE OPPORTUNITIES FUND B, L.P. By: /s/ Kenneth Liang --------------------------------------------- Kenneth Liang Managing Director and General Counsel of Oaktree Capital Management, LLC, the General Partner of OCM Real Estate Opportunities Fund B, L.P. THE PRUDENTIAL INSURANCE COMPANY OF AMERICA By: /s/ Gwendolyn S. Foster --------------------------------------------- Name: Gwendolyn S. Foster Title: Vice President GATEWAY RECOVERY TRUST By: The Prudential Insurance Company of America, its Asset Manager By: /s/ Gwendolyn S. Foster --------------------------------------------- Name: Gwendolyn S. Foster Title: Vice President 14 EXHIBIT INDEX EXHIBIT DESCRIPTION Exhibit 99.1* Preliminary information statement on Schedule 14C filed with the Securities and Exchange Commission on September 28, 2000 (incorporated herein by reference to the Information Statement), Exhibit 99.2* Opinion of Duff & Phelps, LLC dated September 1, 2000 (incorporated herein by reference to Appendix B to the Information Statement), Exhibit 99.3* Agreement and Plan of Merger, dated as of September 26, 2000 (incorporated herein by reference to Appendix A to the Information Statement), Exhibit 99.4 Shareholders' Agreement, dated as of May 26, 2000 by and between TCW Special Credits Fund IV, TCW Special Credit Plus Fund, TCW Special Credits Trust IV, TCW Special Credits Trust IVA, TCW Special Credits, as investment manager of the Weyerhaeuser Company Master Retirement Trust Separate Account, OCM Real Estate Opportunities Fund A, L.P., OCM Real Estate Opportunities Fund B, L.P., and Oaktree Capital Management, LLC as investment manager of Gryphon Domestic VII, LLC Separate Account. * Incorporated by reference to the Information Statement. 15 EX-99.4 2 a2026317zex-99_4.txt EXHIBIT 99.4 EXHIBIT 99.4 SHAREHOLDERS' AGREEMENT This SHAREHOLDERS' AGREEMENT (this "AGREEMENT") is made and entered into as of May 26, 2000, by and between The Prudential Insurance Company of America ("PRUDENTIAL"), Gateway Recovery Trust, (individually "GATEWAY" and, collectively with Prudential, "PRUDENTIAL/GATEWAY") TCW Special Credits Fund IV, TCW Special Credit Plus Fund, TCW Special Credits Trust IV, TCW Special Credits Trust IVA, TCW Special Credits, as investment manager of the Weyerhaeuser Company Master Retirement Trust Separate Account, OCM Real Estate Opportunities Fund A, L.P., OCM Real Estate Opportunities Fund B, L.P., and Oaktree Capital Management, LLC as investment manager of Gryphon Domestic VII, LLC Separate Account (collectively, the "OAKTREE ENTITIES"). W I T N E S S E T H WHEREAS, Prudential, Gateway and each of the Oaktree Entities hold the number of shares of Common Stock (as defined herein) of The Peregrine Real Estate Trust f/k/a/ Commonwealth Equity Trust, a trust organized under the laws of the State of California (together with any successor, the "COMPANY"), as are set forth opposite its name on Schedule 1 hereto; and WHEREAS, Prudential/Gateway and the Oaktree Entities deem it to be in their best interests to regulate certain of their rights in connection with their interests in the Company, and desire to enter into this Agreement in order to effectuate this purpose; NOW, THEREFORE, in consideration of the agreements and mutual covenants set forth herein, the parties agree as follows: SECTION 1. DEFINITIONS. As used in this Agreement, the following terms have the following meanings: "ACQUIROR" has the meaning assigned to such term in SECTION 2. "AFFILIATE" of a Holder means any Person which directly or indirectly controls, is controlled by, or is under common control with such Person. "Control," "controlled by" and "under common control with" means direct or indirect possession of the power to direct or cause the direction of management or policies (whether through ownership of voting securities, by contract or otherwise); PROVIDED that control shall be conclusively presumed when any Person or entity or affiliated group directly or indirectly owns ten percent (10%) or more of the securities having ordinary voting power for the election of a majority of the directors of a corporation. "AGREEMENT" means this Agreement, as the same shall be amended from time to time. "BUSINESS DAY" means a day other than Saturday, Sunday or any other day on which banks are authorized or obligated to close in San Francisco, State of California. "COMMON STOCK" means the Company's common shares of beneficial interest, and any securities issued in substitution or exchange therefor. "COMPANY" has the meaning assigned to such term in the recitals. "NOTES" means the issued and outstanding 8.5% secured notes of the Company due October 1, 2000, and any indebtedness issued in substitution or exchange therefor. "PERSON" shall mean any individual, corporation, partnership, limited liability company, joint venture, association, joint stock company, trust, unincorporated organization or government or agency or political subdivision thereof. "PRO RATA PORTION" shall mean, with respect to Gateway or Prudential, the result realized by dividing (i) the number of shares of Common Stock described on Schedule 1 hereto which are then held by Prudential or Gateway (as applicable) by (ii) the total number of shares of Common Stock described on Schedule 1 hereto then held by the Oaktree Entities, Prudential and Gateway. "SECURITIES" shall mean the shares of Common Stock and any securities convertible or exercisable into shares of Common Stock, and whenever an amount of Securities is calculated or used in any provision of this Agreement, convertible or exercisable securities shall be counted as the number of shares of Common Stock issuable upon such conversion or exercise. "SECURITIES ACT" means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder. "TRANSFER" means to issue, sell, assign, or otherwise transfer for value the Securities. "TRANSFER NOTICE" has the meaning assigned to it in SECTION 2. SECTION 2. DRAG-ALONG. (a) COMMON STOCK SALE. If the Oaktree Entities elect to Transfer a number of shares of Common Stock equal to seventy-five percent (75%) or more of the aggregate number of shares of Common Stock held by the Oaktree Entities on the date hereof as set forth on Schedule 1 hereto to a third party other than an Affiliate of any of the Oaktree Entities (an "Acquiror"), then the Acquiror shall have the right, at its option, to simultaneously purchase from Prudential/Gateway, and Prudential/Gateway will have an obligation to sell, all (but not less than all) of the Common Stock held by Prudential/Gateway at the same price per share, with the same form of consideration and upon the same terms and conditions. Prudential/Gateway agrees to vote all shares of Common Stock held by such entities in favor of any merger, consolidation or similar transaction pursuant to which the Oaktree Entities would Transfer seventy-five percent (75%) or more of the aggregate number of shares of Common Stock held by the Oaktree Entities if such transaction is voted for by the Oaktree Entities. The rights and obligations set forth in this Section 2 shall terminate concurrent with any termination of the agreements of Prudential/Gateway set forth in Section 5 resulting from an election to terminate -2- the agreement of Prudential/Gateway set forth in Section 5 hereof permitted pursuant to the terms of Section 5 hereof. (b) EXERCISE OF RIGHTS. To exercise this drag-along right, the Oaktree Entities shall provide written notice (a "Transfer Notice") to each of Prudential and Gateway no later than fifteen (15) Business Days prior to the date of the proposed Transfer of Common Stock containing all of the terms of the transaction and identifying the name and address of the Acquiror. SECTION 3. TAG-ALONG. With the exception of Transfers by the Oaktree Entities of an aggregate of twenty-five percent (25%) or less of the aggregate number of shares of Common Stock held by the Oaktree Entities on the date hereof as set forth on Schedule 1 hereto, at least twenty (20) days prior to any subsequent Transfer by any Oaktree Entities (the "Selling Oaktree Entity") to any person or entity other than (a) partners of any Oaktree Entity pursuant to in-kind distributions (so long as no sale of such shares is then contemplated), (b) pursuant to a sale on a national securities exchange, an automated quotation system or over the counter system, or (c) an Affiliate of such Oaktree Entity if such Affiliate has first agreed in writing to be bound by the terms of this Agreement, the Selling Oaktree Entity shall provide to Prudential/Gateway a Transfer Notice explaining the terms of such Transfer and identifying the name and address of the potential Acquiror. Upon receipt of such Transfer Notice, each of Prudential and Gateway shall have the right, upon delivery of a written request to the Selling Oaktree Entity within twenty (20) days of the date the Transfer Notice is received by Prudential/Gateway, to cause to be sold to the potential Acquiror its Pro-Rata Portion of the total number of shares of Common Stock which are proposed to be sold by the Selling Oaktree Entity in the Transfer Notice at the same price and on the same terms and conditions contained in the Transfer Notice delivered in connection with such proposed transaction, simultaneously with (and conditioned upon) the Transfer described in the Transfer Notice. The rights and obligations set forth in this Section 3 shall terminate concurrent with any termination of the agreements of Prudential/Gateway set forth in Section 5 resulting from an election to terminate the agreement of Prudential/Gateway set forth in Section 5 hereof permitted pursuant to the terms of Section 5 hereof. SECTION 4. CONVERSION. The Oaktree Entities agree that they will not (a) exchange Notes held by the Oaktree Entities into Common Stock at an exchange price less than the greater of (i) fifty cents ($.50) per share of Common Stock to be issued in such exchange or (ii) ten cents ($.10) per share less than the highest price paid by the Company to purchase any share of Common Stock following the date of this Agreement and prior to the date of such exchange of Notes for Common Stock or (b) effect any subsequent exchange of Notes into the Company's Common Stock at an exchange price that is less than the exchange price of the first exchange of Notes into Common Stock by the Oaktree Entities. The rights and obligations set forth in this Section 4 shall terminate concurrent with any termination of the agreements of Prudential/Gateway set forth in Section 5 resulting from an election to terminate the agreement of Prudential/Gateway set forth in Section 5 hereof permitted pursuant to the terms of Section 5 hereof. SECTION 5. MERGER. Each of the parties hereto agrees that it will (a) execute a written consent in the form attached hereto as Exhibit A approving the proposed merger of the -3- Company with and into Newco (the "Merger"), pursuant to a merger agreement in substantially the form attached hereto as Exhibit B, (b) contribute all of the shares of beneficial interests in the Company that it owns to a newly-formed entity that will have no assets or liabilities and will, following such contribution, be wholly-owned by the parties hereto in the relative percentages set forth on Schedule A attached hereto ("Newco") and that will have a declaration of trust in substantially the form attached hereto as Exhibit C, provided, that in the case of Prudential/Gateway, such contribution shall occur immediately prior to, and substantially concurrently with, the consummation of the Merger, (c) vote all equity interests of Newco and the Company held by such party to approve the Merger and (d) take all commercially reasonable actions as a shareholder of Newco and the Company, as applicable, that are necessary to cause Newco and the Company, respectively, to consummate the Merger. The agreements of each party contained in this Section 5 shall continue until December 31, 2000 (the "Initial Term") and for successive six months periods thereafter (the "Successive Terms") unless such party shall give written notice to each other party hereto not less than one month prior to the expiration of the Initial Term or the applicable Successive Term that it elects to terminate its agreements under this Section 5, in which case the agreement of such party under this Section 5 shall terminate on the last day of the Initial Term or the applicable Successive Term, as applicable. SECTION 6. REPRESENTATIONS. Each party hereto represents and warrants that (i) it is the legal and beneficial owner of the shares or Common Stock set forth opposite its name on Schedule 1 hereto, and (ii) this Agreement has been duly authorized by all necessary corporate, partnership or trust action, has been validly executed and delivered by such party, and constitutes the valid and binding obligation of such party, enforceable against such party in accordance with this Agreement's terms. SECTION 7. EQUITABLE RELIEF. The parties hereto agree and declare that legal remedies may be inadequate to enforce the provisions of this Agreement and that equitable relief, including specific performance and injunctive relief, may be used to enforce such provisions. SECTION 8. NOTICES. All notices, requests and other communications hereunder must be in writing and will be deemed to have been duly given only if delivered personally or by facsimile transmission or mailed (first class postage prepaid) to the parties at the following addresses or facsimile numbers: If to Prudential, to: The Prudential Insurance Company of America Prudential Capital Group Four Gateway Center, 7th Floor 100 Mulberry Street Newark, New Jersey 07102 Facsimile: (973) 802-2333 Attention: Gwen Foster If to Gateway, to: c/o Prudential Capital Group Four Gateway Center, 7th Floor 100 Mulberry Street -4- Newark, New Jersey 07102 Facsimile: (973) 802-2333 Attention: Gwen Foster If to the Oaktree Entities, to: Oaktree Capital Management, LLC 333 South Grand Avenue, 28th Floor Los Angeles, California 90071 Attention: Richard Masson, Principal Facsimile: (213) 830-6494 Attention: Kenneth Liang, Managing Director Facsimile: (213) 830-8522 with a copy to: Milbank, Tweed, Hadley & McCloy 601 South Figueroa Street, 30th Floor Los Angeles, California 90017 Facsimile: (213) 629-5063 Attention: Deborah Baumgart All such notices, requests and other communications will be deemed given upon receipt (in each case regardless of whether such notice, request or other communication is received by any other Person to whom a copy of such notice, request or other communication is to be delivered pursuant to this Section). Any party from time to time may change its address, facsimile number or other information for the purpose of notices to that party by giving notice specifying such change to the other party hereto. SECTION 9. WAIVER. No failure or delay on the part of the parties or any of them in exercising any right, power or privilege hereunder, nor any course of dealing between the parties or any of them shall operate as a waiver of any such right, power or privilege nor shall any single or partial exercise of any such right, power or privilege preclude the simultaneous or later exercise of any other right, power or privilege. The rights and remedies herein expressly provided are cumulative and are not exclusive of any rights or remedies which the parties or any of them would otherwise have. SECTION 10. COUNTERPARTS. This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original but all of which together shall constitute one and the same instrument. SECTION 11. GOVERNING LAW. This Agreement shall be construed in accordance with and governed by the laws of the State of California without regard to principles of conflict of laws. SECTION 12. AMENDMENT OR TERMINATION. The provisions of this Agreement relating to Common Stock may be amended or terminated at any time only by an instrument in writing signed by each of the parties hereto. -5- SECTION 13. BENEFIT AND BINDING EFFECT. Subject to compliance with the terms of this Agreement regarding Transfer of Securities, this Agreement shall be binding upon and inure to the benefit of the parties and their successors and permitted assigns provided that the provisions of this Agreement that are binding upon the Oaktree Parties and Prudential/Gateway shall not be enforceable against successors and assigns of the Oaktree Parties and Prudential/Gateway, respectively, if and to the extent that Prudential/Gateway or the Oaktree Parties, respectively, notify the other parties or their successors or assigns that the provisions of this Agreement shall not be binding upon or inure to the benefit of such successors or assigns. SECTION 14. SEVERABILITY. In the event that any one or more of the provisions contained herein, or the application thereof in any circumstance, is held invalid, illegal or unenforceable, the validity, legality and enforceability of any such provisions in every other respect and of the remaining provisions contained herein shall not be affected or impaired thereby. -6- IN WITNESS WHEREOF, the parties hereto have executed this Stockholders' Agreement as of the day and year first above written. THE PRUDENTIAL INSURANCE COMPANY OF AMERICA By: /s/ GWENDOLYN FOSTER ------------------------------ Name: Gwendolyn Foster Title: Vice President GATEWAY RECOVERY TRUST By:/s/ GWENDOLYN FOSTER ------------------------------ Name: Gwendolyn Foster Title: Vice President TCW SPECIAL CREDITS FUND IV By: TCW Special Credits, Its: General Partner By: TCW Asset Management Company, Its: Managing General Partner By:/s/ RICHARD MASSON -------------------------- Name: Richard Masson Title: Authorized Signatory By:/s/ KENNETH LIANG -------------------------- Name: Kenneth Liang Title: Authorized Signatory TCW SPECIAL CREDITS PLUS FUND By: TCW Special Credits, Its: General Partner By: TCW Asset Management Company, Its: Managing General Partner By: /s/ RICHARD MASSON ---------------------------- Name: Richard Masson Title: Authorized Signatory By:/s/ KENNETH LIANG ---------------------------- Name: Kenneth Liang Title: Authorized Signatory TCW SPECIAL CREDITS TRUST IV By: Trust Company of the West, Trustee By:/s/ RICHARD MASSON --------------------------- Name: Richard Masson Title: Authorized Signatory By:/s/ KENNETH LIANG --------------------------- Name: Kenneth Liang Title: Authorized Signatory TCW SPECIAL CREDITS TRUST IVA By: Trust Company of the West, Trustee By:/s/ RICHARD MASSON --------------------------- Name: Richard Masson Title: Authorized Signatory By:/s/ KENNETH LIANG --------------------------- Name: Kenneth Liang Title: Authorized Signatory OCM REAL ESTATE OPPORTUNITIES FUND A, L.P. By: Oaktree Capital Management, LLC Its: General Partner By:/s/ RICHARD MASSON ---------------------------- Name: Richard Masson Title: Principal By:/s/ KENNETH LIANG ---------------------------- Name: Kenneth Liang Title: Managing Director and General Counsel OCM REAL ESTATE OPPORTUNITIES FUND B, L.P. By: Oaktree Capital Management, LLC Its: General Partner By:/s/ RICHARD MASSON --------------------------- Name: Richard Masson Title: Principal By:/s/ KENNETH LIANG --------------------------- Name: Kenneth Liang Title: Managing Director and General Counsel GRYPHON DOMESTIC VII, LLC SEPARATE ACCOUNT By: Oaktree Capital Management, LLC Its: Investment Manager By:/s/ RICHARD MASSON ------------------------ Name: Richard Masson Title: Principal By:/s/ KENNETH LIANG ------------------------ Name: Kenneth Liang Title: Managing Director and General Counsel WEYERHAEUSER COMPANY MASTER RETIREMENT TRUST By: TCW Special Credits, Its: Investment Manager By: TCW Asset Management Company Its: Managing General Partner By:/s/ RICHARD MASSON ------------------------- Name: Richard Masson Title: Authorized Signatory By:/s/ KENNETH LIANG ------------------------- Name: Kenneth Liang Title: Authorized Signatory -----END PRIVACY-ENHANCED MESSAGE-----