UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT PURSUANT
TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported): August 27, 2013
COMMONWEALTH REIT
(Exact Name of Registrant as Specified in Its Charter)
Maryland
(State or Other Jurisdiction of Incorporation)
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1-9317 |
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04-6558834 |
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(Commission File Number) |
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(IRS Employer Identification No.) |
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Two Newton Place, 255 Washington Street, |
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Suite 300, Newton, Massachusetts |
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02458-1634 |
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(Address of Principal Executive Offices) |
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(Zip Code) |
(617) 332-3990
(Registrant’s Telephone Number, Including Area Code)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Item 8.01. Other Events.
On August 27, 2013, CommonWealth REIT, or we or us, amended the agreement governing our unsecured revolving credit facility, or the revolving credit facility agreement, with Wells Fargo Bank, National Association, as administrative agent, and a syndicate of other lenders and the agreement governing our unsecured term loan, or the term loan agreement, with Wells Fargo Bank, National Association, as administrative agent, and a syndicate of other lenders. These amendments (i) revise the definition of “LIBOR” to reference the Reuters Screen LIBOR01 page, (ii) modify our covenant not to amend, modify or default in performance of our business management and property management agreements to align with the applicable preexisting standards applying to our other material contracts, and (iii) revise the definition of change of control to increase the percentage referenced from 10% to 25% of our total outstanding common shares.
As previously reported, on August 2, 2013, our Board of Trustees granted to a large investment management firm that manages mutual funds, a limited waiver of certain ownership limitations set forth in our declaration of trust and bylaws and Renewed Rights Agreement by and between the us and Equiserve Trust Company, N.A., dated as of March 10, 2004, as amended. As a result of the amendments described above, such firm is permitted to acquire beneficial ownership of up to (but less than) 20% of our outstanding common shares pursuant to and in accordance with the terms of such limited waiver.
The foregoing description of the revolving credit facility agreement, as amended, is not complete and is subject to and qualified in its entirety by reference to the revolving credit facility agreement, a copy of which is attached as Exhibit 10.1 to our Current Report on Form 8-K filed with the SEC on August 9, 2010, and to the amendments thereto, copies of which are attached as Exhibit 10.1 to our Quarterly Report on Form 10-Q for the quarter ended March 31, 2011, as Exhibit 10.1 to our Current Report on Form 8-K filed with the SEC on October 21, 2011, as Exhibit 10.3 to our Current Report on Form 8-K filed with the SEC on July 18, 2012, and as Exhibit 10.1 hereto, each of which is incorporated herein by reference.
The foregoing description of the term loan agreement, as amended, is not complete and is subject to and qualified in its entirety by reference to the term loan agreement, a copy of which is attached as Exhibit 10.1 to our Current Report on Form 8-K filed with the SEC on December 17, 2010, and to amendments thereto, copies of which are attached as Exhibit 10.1 to our Current Report on Form 8-K filed with the SEC on October 28, 2011, as Exhibit 10.4 to our Current Report on Form 8-K filed with the SEC on July 18, 2012, and as Exhibit 10.2 hereto, each of which is incorporated herein by reference.
WARNING CONCERNING FORWARD LOOKING STATEMENTS
THIS CURRENT REPORT ON FORM 8-K CONTAINS STATEMENTS THAT CONSTITUTE FORWARD LOOKING STATEMENTS WITHIN THE MEANING OF THE PRIVATE SECURITIES LITIGATION REFORM ACT OF 1995 AND OTHER SECURITIES LAWS. ALSO, WHENEVER WE USE WORDS SUCH AS “BELIEVE”, “EXPECT”, “ANTICIPATE”, “INTEND”, “PLAN”, “ESTIMATE” OR SIMILAR EXPRESSIONS, WE ARE MAKING FORWARD LOOKING STATEMENTS. THESE FORWARD LOOKING STATEMENTS ARE BASED UPON OUR PRESENT INTENT, BELIEFS OR EXPECTATIONS, BUT FORWARD LOOKING STATEMENTS ARE NOT GUARANTEED TO OCCUR AND MAY NOT OCCUR. ACTUAL RESULTS MAY DIFFER MATERIALLY FROM THOSE CONTAINED IN OR IMPLIED BY THESE FORWARD LOOKING STATEMENTS AS A RESULT OF VARIOUS FACTORS. FOR EXAMPLE:
· ON JUNE 21, 2013, CORVEX MANAGEMENT LP, OR CORVEX, DELIVERED A LETTER TO US ASSERTING THAT OUR BOARD OF TRUSTEES HAS BEEN REMOVED AND NO LONGER HAS AUTHORITY TO ACT FOR US BY REASON OF A PURPORTED SHAREHOLDERS’ CONSENT SOLICITATION. WE BELIEVE THIS PURPORTED SHAREHOLDERS’ CONSENT HAS NO LEGAL EFFECT. THE LEGAL EFFECTIVENESS OF THE ACTIVITIES OF CORVEX, RELATED FUND MANAGEMENT, LLC AND CERTAIN OF THEIR AFFILIATES, OR TOGETHER WITH CORVEX, CORVEX/RELATED, TO REMOVE OUR ENTIRE BOARD OF TRUSTEES IS CURRENTLY THE SUBJECT OF LEGAL PROCEEDINGS BEFORE AN ARBITRATION PANEL UNDER THE AUSPICES OF THE AMERICAN ARBITRATION ASSOCIATION. THE RESULTS OF LITIGATION AND
ARBITRATION ARE DIFFICULT TO PREDICT AND WE ARE UNABLE TO PROVIDE ANY ASSURANCES REGARDING SUCH RESULTS.
· THE REMOVAL OF OUR ENTIRE BOARD OF TRUSTEES, AS PROPOSED BY CORVEX/RELATED, COULD CAUSE DEFAULTS UNDER THE REVOLVING CREDIT FACILITY AND TERM LOAN AGREEMENTS PERMITTING OUR LENDERS TO ACCELERATE REPAYMENTS, AS WELL AS SEVERAL OTHER ADVERSE CONSEQUENCES TO OUR CONTINUED OPERATIONS.
· IN THE EVENT THAT THE ARBITRATION PANEL WERE TO RULE THAT OUR BOARD OF TRUSTEES HAS BEEN REMOVED BY THE CORVEX/RELATED CONSENT SOLICITATION, THE APPROVAL OF THE AMENDMENTS AND LIMITED WAIVER DESCRIBED HEREIN MAY BE CHALLENGED.
THE INFORMATION CONTAINED IN OUR FILINGS WITH THE SECURITIES AND EXCHANGE COMMISSION, OR SEC, INCLUDING UNDER THE CAPTION “RISK FACTORS” IN OUR PERIODIC REPORTS, OR INCORPORATED THEREIN, IDENTIFIES OTHER IMPORTANT FACTORS THAT COULD CAUSE DIFFERENCES FROM OUR FORWARD LOOKING STATEMENTS. OUR FILINGS WITH THE SEC ARE AVAILABLE ON THE SEC’S WEBSITE AT WWW.SEC.GOV.
YOU SHOULD NOT PLACE UNDUE RELIANCE UPON OUR FORWARD LOOKING STATEMENTS.
EXCEPT AS REQUIRED BY LAW, WE DO NOT INTEND TO UPDATE OR CHANGE ANY FORWARD LOOKING STATEMENTS AS A RESULT OF NEW INFORMATION, FUTURE EVENTS OR OTHERWISE.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
10.1 Fourth Amendment to Credit Agreement, dated as of August 27, 2013, among CommonWealth REIT, Wells Fargo Bank, National Association, as Administrative Agent, and each of the other financial institutions party thereto.
10.2 Third Amendment to Term Loan Agreement, dated as of August 27, 2013, among CommonWealth REIT, Wells Fargo Bank, National Association, as Administrative Agent, and each of the other financial institutions party thereto.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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By: |
/s/ John C. Popeo |
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Name: |
John C. Popeo |
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Title: |
Treasurer and Chief Financial Officer |
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Date: August 29, 2013 |
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Exhibit 10.1
Execution Version
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FOURTH AMENDMENT TO CREDIT AGREEMENT
Dated as of August 27, 2013
by and among
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as Borrower, | ||
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THE LENDERS PARTY HERETO, |
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as Lenders, | ||
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WELLS FARGO BANK, NATIONAL ASSOCIATION, | |
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as Administrative Agent, |
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BANK OF AMERICA, N.A., |
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as Syndication Agent, | ||
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REGIONS BANK,
ROYAL BANK OF CANADA
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SUMITOMO MITSUI BANKING CORPORATION, | |
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as Documentation Agents |
and
WELLS FARGO SECURITIES, LLC
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MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED, | |
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as Joint Lead Arrangers and |
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Joint Lead Bookrunners |
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FOURTH AMENDMENT TO CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO CREDIT AGREEMENT (this “Amendment”) dated as of August 27, 2013, by and among COMMONWEALTH REIT, a real estate investment trust organized under the laws of the State of Maryland (the “Borrower”), each of the Lenders party hereto, and WELLS FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent (together with its successors and assigns, the “Administrative Agent”).
WHEREAS, the Borrower, the Lenders, the Administrative Agent and certain other parties have entered into that certain Credit Agreement dated as of August 9, 2010, as amended by that certain First Amendment to Credit Agreement dated as of December 20, 2010, as further amended by that certain Second Amendment to Credit Agreement dated as of October 18, 2011, and as further amended by that certain Third Amendment to Credit Agreement dated as of June 18, 2012 (as amended and as in effect immediately prior to the effectiveness of this Amendment, the “Credit Agreement”); and
WHEREAS, the Borrower, the Lenders party hereto and the Administrative Agent desire to amend certain provisions of the Credit Agreement on the terms and conditions contained herein;
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties hereto, the parties hereto hereby agree as follows:
Section 1. Specific Amendments to Credit Agreement. The parties hereto agree that the Credit Agreement is amended as follows:
(a) The Credit Agreement is amended by restating the definition of “LIBOR” set forth in Section 1.1. thereof in its entirety as follows:
“LIBOR” means, with respect to any LIBOR Loan for any Interest Period, the rate of interest obtained by dividing (i) the rate appearing on the Reuters Screen LIBOR01 page (or on any successor or substitute page of such service, or any successor to or substitute for such service, providing rate quotations comparable to those currently provided on such page, as determined by the Administrative Agent from time to time for purposes of providing quotations of interest rates applicable to Dollar deposits in the London interbank market) at approximately 11:00 a.m., London time, on the date that is two Business Days prior to the first day of such Interest Period and having a maturity equal to such Interest Period by (ii) a percentage equal to 1 minus the stated maximum rate (stated as a decimal) of all reserves, if any, required to be maintained with respect to Eurocurrency funding (currently referred to as “Eurocurrency liabilities”) as specified in Regulation D of the Board of Governors of the Federal Reserve System (or against any other category of liabilities which includes deposits by reference to which the interest rate on LIBOR Loans is determined or any applicable category of extensions of credit or other assets which includes loans by an office of any Lender outside of the United States of America). Any change in such maximum rate shall result in a change in LIBOR on the date on which such change in such maximum rate becomes effective.
(b) The Credit Agreement is amended by restating Section 9.7.(b) thereof in its entirety as follows:
(b) The Borrower shall not, and shall not permit any Subsidiary or other Loan Party to, enter into any amendment or modification to any Material Contract which could reasonably be expected to have a Material Adverse Effect.
(c) The Credit Agreement is amended by restating Section 10.1.(l)(i) in its entirety as follows:
(i) Any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), is or becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that a Person will be deemed to have “beneficial ownership” of all securities that such Person has the right to acquire, whether such right is exercisable immediately or only after the passage of time), directly or indirectly, of more than 25.0 % of the total voting power of the then outstanding voting stock of the Borrower;
Section 2. Conditions Precedent. The effectiveness of this Amendment is subject to receipt by the Administrative Agent of each of the following, each in form and substance satisfactory to the Administrative Agent:
(a) A counterpart of this Amendment duly executed by the Borrower, the Administrative Agent and Lenders holding at least 66 2/3% of the aggregate amount of the Commitments of all Lenders;
(b) An Acknowledgement substantially in the form of Exhibit A attached hereto, executed by each Guarantor; and
(c) Such other documents, instruments and agreements as the Administrative Agent may reasonably request.
Section 3. Representations. The Borrower represents and warrants to the Administrative Agent and the Lenders that:
(a) Authorization. The Borrower has the right and power, and has taken all necessary action to authorize it, to execute and deliver this Amendment and to perform its obligations hereunder and under the Credit Agreement, as amended by this Amendment, in accordance with their respective terms. This Amendment has been duly executed and delivered by a duly authorized officer of the Borrower and each of this Amendment and the Credit Agreement, as amended by this Amendment, is a legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with its respective terms except as (i) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors’ rights generally and (ii) the availability of equitable remedies may be limited by equitable principles of general applicability.
(b) Compliance with Laws, etc. The execution and delivery by the Borrower of this Amendment and the performance by the Borrower of this Amendment and the Credit Agreement, as amended by this Amendment, in accordance with their respective terms, do not and will not, by the passage of time, the giving of notice or otherwise: (i) require any Governmental Approval or violate any Applicable Law (including Environmental Laws) relating to the Borrower or any other Loan Party; (ii) conflict with, result in a breach of or constitute a default under the organizational documents of
Borrower or any other Loan Party, or any indenture, agreement or other instrument to which the Borrower or any other Loan Party is a party or by which it or any of its properties may be bound; or (iii) result in or require the creation or imposition of any Lien upon or with respect to any property now owned or hereafter acquired by the Borrower or any other Loan Party.
(c) No Default. To the knowledge of the Borrower, no Default or Event of Default has occurred and is continuing as of the date hereof or will exist immediately after giving effect to this Amendment.
Section 4. Reaffirmation of Representations by Borrower. The Borrower hereby repeats and reaffirms all representations and warranties made by the Borrower and the other Loan Parties to the Administrative Agent and the Lenders in the Credit Agreement and the other Loan Documents on and as of the date hereof with the same force and effect as if such representations and warranties were set forth in this Amendment in full.
Section 5. Certain References. Each reference to the Credit Agreement in any of the Loan Documents shall be deemed to be a reference to the Credit Agreement as amended by this Amendment.
Section 6. 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 Amendment and the other agreements and documents executed and delivered in connection herewith.
Section 7. Benefits. This Amendment shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns.
Section 8. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE.
Section 9. Effect. Except as expressly herein amended, the terms and conditions of the Credit Agreement and the other Loan Documents remain in full force and effect. The amendments contained herein shall be deemed to have prospective application only from the date as of which this Amendment is dated, unless otherwise specifically stated herein.
Section 10. Counterparts. This Amendment may be executed in any number of counterparts, each of which shall be deemed to be an original and shall be binding upon all parties, their successors and assigns.
Section 11. Definitions. All capitalized terms not otherwise defined herein are used herein with the respective definitions given them in the Credit Agreement.
[Signatures on Next Page]
IN WITNESS WHEREOF, the parties hereto have caused this Fourth Amendment to Credit Agreement to be executed as of the date first above written.
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COMMONWEALTH REIT | |
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/s/ Adam Portnoy |
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Name: Adam Portnoy |
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Title: President |
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WELLS FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent and as a Lender | |
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By: |
/s/ D. Bryan Gregory |
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Name: D. Bryan Gregory |
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Title: Director |
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BANK OF AMERICA, N.A., as a Lender | |
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By: |
/s/ Cheryl Sneor |
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Name: Cheryl Sneor |
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Title: Vice President |
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REGIONS BANK, as a Lender | |
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By: |
/s/ Michael R. Mellott |
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Name: Michael R. Mellott |
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Title: Director |
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ROYAL BANK OF CANADA, as a Lender | |
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By: |
/s/ G. David Cole |
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Name: G. David Cole |
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Title: Authorized Signatory |
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MIZUHO CORPORATE BANK, as a Lender | |
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PNC BANK, NATIONAL ASSOCIATION, as a Lender | |
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By: |
/s/ Douglas E. Blackman |
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Name: Douglas E. Blackman |
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Title: Senior Vice President |
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TD BANK, N.A., as a Lender | |
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By: |
/s/ Mary Merrill, VP |
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Name: Mary Merrill |
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Title: Senior Credit Manager |
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COMPASS BANK, as a Lender | |
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By: |
/s/ S. Kent Gorman |
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Name: S. Kent Gorman |
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Title: Sr. VP |
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SUMITOMO MITSUI BANKING CORPORATION, as a Lender | |
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By: |
/s/ William G. Karl |
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Name: William G. Karl |
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Title: General Manager |
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THE BANK OF NEW YORK MELLON, as a Lender | |
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By: |
/s/ Helga Blum |
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Name: Helga Blum |
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Title: Managing Director |
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BRANCH BANKING AND TRUST COMPANY, as a Lender | |
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CAPITAL ONE, N.A., as a Lender | |
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By: |
/s/ Frederick H. Denecke |
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Name: Frederick H. Denecke |
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Title: Senior Vice President |
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THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., as a Lender | |
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By: |
/s/ Charles Stewart |
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Name: Charles Stewart |
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Title: Director |
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COMERICA BANK, as a Lender | |
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By: |
/s/ Casey L. Stevenson |
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Name: Casey L. Stevenson |
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Title: Vice President |
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U.S. BANK NATIONAL ASSOCIATION, as a Lender | |
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By: |
/s/ Michael E. Hussey |
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Name: Michael E. Hussey |
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Title: SVP |
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UNION BANK, N.A., as a Lender | |
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By: |
/s/ Amit Shah |
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Name: Amit Shah |
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Title: Vice President |
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FIRST HAWAIIAN BANK, as a Lender | |
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By: |
/s/ Derek Chang |
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Name: Derek Chang |
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Title: Vice President |
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HUNTINGTON NATIONAL BANK, as a Lender | |
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CHANG HWA COMMERCIAL BANK, LTD., NEW YORK BRANCH, as a Lender | |
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RBS CITIZENS, N.A., as a Lender | |
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CITIBANK, N.A., as a Lender | |
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By: |
/s/ John C. Rowland |
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Name: John C. Rowland |
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Title: Vice President |
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MORGAN STANLEY BANK, N.A., as a Lender | |
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By: |
/s/ Nick Zangari |
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Name: Nick Zangari |
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Title: Authorized Signatory |
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UBS LOAN FINANCE LLC, as a Lender | |
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By: |
/s/ Lana Gifas |
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Name: Lana Gifas |
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Title: Director |
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By: |
/s/ Joselin Fernandes |
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Name: Joselin Fernandes |
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Title: Associate Director |
EXHIBIT A
FORM OF GUARANTOR ACKNOWLEDGEMENT
THIS GUARANTOR ACKNOWLEDGEMENT dated as of August 27, 2013 (this “Acknowledgement”) executed by each of the undersigned (the “Guarantors”) in favor of WELLS FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent (the “Administrative Agent”), and each “Lender” a party to the Credit Agreement referred to below (the “Lenders”).
WHEREAS, Commonwealth REIT, a real estate investment trust organized under the laws of the State of Maryland (the “Borrower”), the Lenders, the Administrative Agent and certain other parties have entered into that certain Credit Agreement dated as of August 9, 2010, as amended by that certain First Amendment to Credit Agreement dated as of December 20, 2010, as further amended by that certain Second Amendment to Credit Agreement dated as of October 18, 2011, and as further amended by that certain Third Amendment to Credit Agreement dated as of June 18, 2012 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”);
WHEREAS, each of the Guarantors is a party to that certain Guaranty dated as of August 9, 2010 (as amended, restated, supplemented or otherwise modified from time to time, the “Guaranty”) pursuant to which they guarantied, among other things, the Borrower’s obligations under the Credit Agreement on the terms and conditions contained in the Guaranty;
WHEREAS, the Borrower, the Administrative Agent and the Lenders are to enter into a Fourth Amendment to Credit Agreement dated as of the date hereof (the “Amendment”), to amend the terms of the Credit Agreement on the terms and conditions contained therein; and
WHEREAS, it is a condition precedent to the effectiveness of the Amendment that the Guarantors execute and deliver this Acknowledgement;
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties hereto, the parties hereto agree as follows:
Section 1. Reaffirmation. Each Guarantor hereby reaffirms its continuing obligations to the Administrative Agent and the Lenders under the Guaranty and agrees that the transactions contemplated by the Amendment shall not in any way affect the validity and enforceability of the Guaranty, or reduce, impair or discharge the obligations of such Guarantor thereunder.
Section 2. Governing Law. THIS ACKNOWLEDGEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE.
Section 3. Counterparts. This Acknowledgement may be executed in any number of counterparts, each of which shall be deemed to be an original and shall be binding upon all parties, their successors and assigns.
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Exhibit 10.2
Execution Version
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THIRD AMENDMENT TO TERM LOAN AGREEMENT
Dated as of August 27, 2013
by and among
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COMMONWEALTH REIT, | |
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as Borrower, |
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THE LENDERS PARTY HERETO, | |
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as Lenders, |
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WELLS FARGO BANK, NATIONAL ASSOCIATION, | |
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as Administrative Agent, |
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COMPASS BANK,
REGIONS BANK,
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ROYAL BANK OF CANADA | |
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as Syndication Agents |
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WELLS FARGO SECURITIES, LLC, | |
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as Sole Arranger and |
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Sole Bookrunner |
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THIRD AMENDMENT TO TERM LOAN AGREEMENT
THIS THIRD AMENDMENT TO TERM LOAN AGREEMENT (this “Amendment”) dated as of August 27, 2013, by and among COMMONWEALTH REIT, a real estate investment trust organized under the laws of the State of Maryland (the “Borrower”), each of the Lenders party hereto, and WELLS FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent (together with its successors and assigns, the “Administrative Agent”).
WHEREAS, the Borrower, the Lenders, the Administrative Agent and certain other parties have entered into that certain Term Loan Agreement dated as of December 16, 2010, as amended by that certain First Amendment to Term Loan Agreement dated as of October 26, 2011, and as further amended by that certain Second Amendment to Term Loan Agreement dated as of June 18, 2012 (as amended and as in effect immediately prior to the effectiveness of this Amendment, the “Credit Agreement”); and
WHEREAS, the Borrower, the Lenders party hereto and the Administrative Agent desire to amend certain provisions of the Credit Agreement on the terms and conditions contained herein;
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties hereto, the parties hereto hereby agree as follows:
Section 1. Specific Amendments to Credit Agreement. The parties hereto agree that the Credit Agreement is amended as follows:
(a) The Credit Agreement is amended by restating the definition of “LIBOR” set forth in Section 1.1. thereof in its entirety as follows:
“LIBOR” means, with respect to any LIBOR Loan for any Interest Period, the rate of interest obtained by dividing (i) the rate appearing on the Reuters Screen LIBOR01 page (or on any successor or substitute page of such service, or any successor to or substitute for such service, providing rate quotations comparable to those currently provided on such page, as determined by the Administrative Agent from time to time for purposes of providing quotations of interest rates applicable to Dollar deposits in the London interbank market) at approximately 11:00 a.m., London time, on the date that is two Business Days prior to the first day of such Interest Period and having a maturity equal to such Interest Period by (ii) a percentage equal to 1 minus the stated maximum rate (stated as a decimal) of all reserves, if any, required to be maintained with respect to Eurocurrency funding (currently referred to as “Eurocurrency liabilities”) as specified in Regulation D of the Board of Governors of the Federal Reserve System (or against any other category of liabilities which includes deposits by reference to which the interest rate on LIBOR Loans is determined or any applicable category of extensions of credit or other assets which includes loans by an office of any Lender outside of the United States of America). Any change in such maximum rate shall result in a change in LIBOR on the date on which such change in such maximum rate becomes effective.
(b) The Credit Agreement is amended by restating Section 9.7.(b) thereof in its entirety as follows:
(b) The Borrower shall not, and shall not permit any Subsidiary or other Loan Party to, enter into any amendment or modification to any Material Contract which could reasonably be expected to have a Material Adverse Effect.
(c) The Credit Agreement is amended by restating Section 10.1.(l)(i) in its entirety as follows:
(i) Any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), is or becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that a Person will be deemed to have “beneficial ownership” of all securities that such Person has the right to acquire, whether such right is exercisable immediately or only after the passage of time), directly or indirectly, of more than 25.0% of the total voting power of the then outstanding voting stock of the Borrower;
Section 2. Conditions Precedent. The effectiveness of this Amendment is subject to receipt by the Administrative Agent of each of the following, each in form and substance satisfactory to the Administrative Agent:
(a) A counterpart of this Amendment duly executed by the Borrower, the Administrative Agent and Lenders holding at least 66 2/3% of the principal amount of the aggregate outstanding Loans;
(b) An Acknowledgement substantially in the form of Exhibit A attached hereto, executed by each Guarantor; and
(c) Such other documents, instruments and agreements as the Administrative Agent may reasonably request.
Section 3. Representations. The Borrower represents and warrants to the Administrative Agent and the Lenders that:
(a) Authorization. The Borrower has the right and power, and has taken all necessary action to authorize it, to execute and deliver this Amendment and to perform its obligations hereunder and under the Credit Agreement, as amended by this Amendment, in accordance with their respective terms. This Amendment has been duly executed and delivered by a duly authorized officer of the Borrower and each of this Amendment and the Credit Agreement, as amended by this Amendment, is a legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with its respective terms except as (i) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors’ rights generally and (ii) the availability of equitable remedies may be limited by equitable principles of general applicability.
(b) Compliance with Laws, etc. The execution and delivery by the Borrower of this Amendment and the performance by the Borrower of this Amendment and the Credit Agreement, as amended by this Amendment, in accordance with their respective terms, do not and will not, by the passage of time, the giving of notice or otherwise: (i) require any Governmental Approval or violate any Applicable Law (including Environmental Laws) relating to the Borrower or any other Loan Party; (ii) conflict with, result in a breach of or constitute a default under the organizational documents of
Borrower or any other Loan Party, or any indenture, agreement or other instrument to which the Borrower or any other Loan Party is a party or by which it or any of its properties may be bound; or (iii) result in or require the creation or imposition of any Lien upon or with respect to any property now owned or hereafter acquired by the Borrower or any other Loan Party.
(c) No Default. To the knowledge of the Borrower, no Default or Event of Default has occurred and is continuing as of the date hereof or will exist immediately after giving effect to this Amendment.
Section 4. Reaffirmation of Representations by Borrower. The Borrower hereby repeats and reaffirms all representations and warranties made by the Borrower and the other Loan Parties to the Administrative Agent and the Lenders in the Credit Agreement and the other Loan Documents on and as of the date hereof with the same force and effect as if such representations and warranties were set forth in this Amendment in full.
Section 5. Certain References. Each reference to the Credit Agreement in any of the Loan Documents shall be deemed to be a reference to the Credit Agreement as amended by this Amendment.
Section 6. 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 Amendment and the other agreements and documents executed and delivered in connection herewith.
Section 7. Benefits. This Amendment shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns.
Section 8. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE.
Section 9. Effect. Except as expressly herein amended, the terms and conditions of the Credit Agreement and the other Loan Documents remain in full force and effect. The amendments contained herein shall be deemed to have prospective application only from the date as of which this Amendment is dated, unless otherwise specifically stated herein.
Section 10. Counterparts. This Amendment may be executed in any number of counterparts, each of which shall be deemed to be an original and shall be binding upon all parties, their successors and assigns.
Section 11. Definitions. All capitalized terms not otherwise defined herein are used herein with the respective definitions given them in the Credit Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Third Amendment to Term Loan Agreement to be executed as of the date first above written.
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COMMONWEALTH REIT | |
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By: |
/s/ David M. Lepore |
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Name: David M. Lepore |
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Title: Senior Vice President |
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WELLS FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent and as a Lender | |
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By: |
/s/ D. Bryan Gregory |
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Name: D. Bryan Gregory |
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Title: Director |
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REGIONS BANK, as a Lender | |
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By: |
/s/ Michael R. Mellott |
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Name: Michael R. Mellott |
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Title: Director |
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ROYAL BANK OF CANADA, as a Lender | |
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By: |
/s/ G. David Cole |
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Name: G. David Cole |
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Title: Authorized Signatory |
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COMPASS BANK, as a Lender | |
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By: |
/s/ S. Kent Gorman |
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Name: S. Kent Gorman |
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Title: Sr. VP |
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U.S. BANK NATIONAL ASSOCIATION, as a Lender | |
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By: |
/s/ Michael E. Hussey |
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Name: Michael E. Hussey |
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Title: SVP |
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PNC BANK, as a Lender | |
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By: |
/s/ Douglas E. Blackman |
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Name: Douglas E. Blackman |
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Title: Senior Vice President |
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THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., as a Lender | |
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By: |
/s/ Charles Stewart |
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Name: Charles Stewart |
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Title: Director |
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CAPITAL ONE, N.A., as a Lender | |
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By: |
/s/ Frederick H. Denecke |
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Name: Frederick H. Denecke |
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Title: Senior Vice President |
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UNION BANK, N.A., as a Lender | |
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By: |
/s/ Amit Shah |
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Name: Amit Shah |
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Title: Vice President |
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BRANCH BANKING AND TRUST COMPANY, as a Lender | |
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By: |
/s/ Mark Edwards |
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Name: Mark Edwards |
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Title: Senior Vice President |
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TD BANK, N.A., as a Lender | |
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By: |
/s/ Mary Merrill |
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Name: Mary Merrill |
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Title: Senior Credit Manager |
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FIRST HAWAIIAN BANK, as a Lender | |
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By: |
/s/ Derek Chang |
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Name: Derek Chang |
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Title: Vice President |
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COMERICA BANK, as a Lender | |
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By: |
/s/ Casey L. Stevenson |
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Name: Casey L. Stevenson |
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Title: Vice President |
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HUNTINGTON NATIONAL BANK, as a Lender | |
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By: |
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Name: |
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Title: |
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SUMITOMO MITSUI BANKING CORPORATION, as a Lender | |
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By: |
/s/ William G. Karl |
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Name: William G. Karl |
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Title: General Manager |
EXHIBIT A
FORM OF GUARANTOR ACKNOWLEDGEMENT
THIS GUARANTOR ACKNOWLEDGEMENT dated as of August 27, 2013 (this “Acknowledgement”) executed by each of the undersigned (the “Guarantors”) in favor of WELLS FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent (the “Administrative Agent”), and each “Lender” a party to the Credit Agreement referred to below (the “Lenders”).
WHEREAS, Commonwealth REIT, a real estate investment trust organized under the laws of the State of Maryland (the “Borrower”), the Lenders, the Administrative Agent and certain other parties have entered into that certain Term Loan Agreement dated as of December 16, 2010, as amended by that certain First Amendment to Term Loan Agreement dated as of October 26, 2011, and as further amended by that certain Second Amendment to Term Loan Agreement dated as of June 18, 2012 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”);
WHEREAS, each of the Guarantors is a party to that certain Guaranty dated as of December 16, 2010 (as amended, restated, supplemented or otherwise modified from time to time, the “Guaranty”) pursuant to which they guarantied, among other things, the Borrower’s obligations under the Credit Agreement on the terms and conditions contained in the Guaranty;
WHEREAS, the Borrower, the Administrative Agent and the Lenders are to enter into a Third Amendment to Term Loan Agreement dated as of the date hereof (the “Amendment”), to amend the terms of the Credit Agreement on the terms and conditions contained therein; and
WHEREAS, it is a condition precedent to the effectiveness of the Amendment that the Guarantors execute and deliver this Acknowledgement;
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties hereto, the parties hereto agree as follows:
Section 1. Reaffirmation. Each Guarantor hereby reaffirms its continuing obligations to the Administrative Agent and the Lenders under the Guaranty and agrees that the transactions contemplated by the Amendment shall not in any way affect the validity and enforceability of the Guaranty, or reduce, impair or discharge the obligations of such Guarantor thereunder.
Section 2. Governing Law. THIS ACKNOWLEDGEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE.
Section 3. Counterparts. This Acknowledgement may be executed in any number of counterparts, each of which shall be deemed to be an original and shall be binding upon all parties, their successors and assigns.
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