UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 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): June 6, 2014
COMMONWEALTH REIT
(Exact Name of Registrant as Specified in Its Charter)
Maryland
(State or Other Jurisdiction of Incorporation)
|
1-9317 |
|
04-6558834 |
|
(Commission File Number) |
|
(IRS Employer Identification No.) |
|
|
|
|
|
Two North Riverside Plaza, Suite 600, Chicago, IL |
|
60606 |
|
(Address of Principal Executive Offices) |
|
(Zip Code) |
(312) 646-2800
(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 (see General Instruction A.2 below):
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 1.01. Entry into a Material Definitive Agreement.
As previously disclosed, the removal of the Company’s prior Board of Trustees, without cause, on March 25, 2014, constituted an event of default under the Company’s term loan and revolving credit facility agreements (the “Loan Agreements”). As a consequence, the lenders under these agreements became entitled to exercise certain remedies, including the right to accelerate their loans and to require that their loans bear interest at the post-default rate. Also as previously disclosed, the Company entered into separate forbearance agreements (the “Forbearance Agreements”) effective as of April 11, 2014 regarding the Company’s revolving credit facility with Wells Fargo Bank, National Association, as Administrative Agent, and each of the other financial institutions signatory thereto (together with the Administrative Agent, the “Credit Facility Lenders”) and the Company’s term loan with Wells Fargo Bank, National Association, as Administrative Agent, and each of the other financial institutions signatory thereto (the “Term Loan Lenders” and, together with the Credit Facility Lenders, the “Lenders”). Pursuant to the Forbearance Agreements, the Lenders generally agreed to forbear during a specified period (which period would have expired on June 13, 2014) from exercising certain of their rights and remedies under the Loan Agreements with respect to specified events of default arising from the removal, without cause, of the Company’s prior Board of Trustees. Following the election of the Company’s new Board of Trustees on May 23, 2014, the Company requested that the Lenders provide waivers of these events of default.
Effective as of June 6, 2014, the Company obtained such waivers and amended its Loan Agreements pursuant to the Fifth Amendment to Credit Agreement and Waiver, among the Company and the Credit Facility Lenders, and the Fourth Amendment to Term Loan Agreement and Waiver, among the Company and the Term Loan Lenders. Pursuant to these amendments and waivers, the Lenders waived the events of default arising from the removal, without cause, of the Company’s prior Board of Trustees, and each of the Loan Agreements were amended to:
· Remove as “Material Contracts” (i) the Business Management Agreement, dated as of June 8, 2009, as amended, by and between the Company and Reit Management & Research LLC (“RMR”), and (ii) the Amended and Restated Property Management Agreement, dated as of January 21, 2010, by and between the Company and RMR;
· Revise the change of control Event of Default (as defined in each of the Loan Agreements) so that failure of RMR to act as sole business and property manager no longer constitutes a change of control thereunder; and
· Revise the change of control Event of Default to increase from 25% to 35% the level of voting power with respect to the Company’s shares that constitutes a change of control if acquired by any person or group.
In addition, the Forbearance Agreements were deemed to be terminated upon effectiveness of these amendments and waivers, other than certain provisions thereof relating to the release of claims against, and confirming no waivers by, the Lenders.
The foregoing description of the Fifth Amendment to Credit Agreement and Waiver and the Fourth Amendment to Term Loan Agreement and Waiver is not complete and is subject to and qualified in its entirety by reference to the Fifth Amendment to Credit Agreement and Waiver, a copy of which is attached hereto as Exhibit 10.1 and is incorporated in this Item 1.01 by reference, and the Fourth Amendment to Term Loan Agreement and Waiver, a copy of which is attached hereto as Exhibit 10.2 and is incorporated in this Item 1.01 by reference. The foregoing description of the Forbearance Agreements is not complete and is subject to and qualified in its entirety by reference to the Forbearance Agreements, copies of which are attached as Exhibits 10.1 and 10.2 to our Current Report on Form 8-K filed with the Securities and Exchange Commission on April 14, 2014 and are incorporated in this Item 1.01 by reference.
Item 1.02. Termination of a Material Definitive Agreement.
The above description of the termination of the Forbearance Agreements under Item 1.01 of this Current Report on Form 8-K is incorporated into this Item 1.02 by reference.
|
Item 9.01. |
|
Financial Statements and Exhibits. |
(a) Not applicable.
(b) Not applicable.
(c) Not applicable.
(d) The following exhibits are filed as part of this report:
|
Exhibit Number |
|
Description |
|
|
|
|
|
10.1 |
|
Fifth Amendment to Credit Agreement and Waiver, dated as of June 6, 2014, among CommonWealth REIT, Wells Fargo Bank, National Association, as Administrative Agent, and each of the other financial institutions signatory thereto |
|
|
|
|
|
10.2 |
|
Fourth Amendment to Term Loan Agreement and Waiver, dated as of June 6, 2014, among CommonWealth REIT, Wells Fargo Bank, National Association, as Administrative Agent, and each of the other financial institutions signatory 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.
|
|
COMMONWEALTH REIT | |
|
|
By: |
/s/ Orrin Shifrin |
|
|
Name: |
Orrin Shifrin |
|
|
Title: |
General Counsel and Secretary |
Date: June 12, 2014
Exhibit 10.1
EXECUTION COPY
FIFTH AMENDMENT TO CREDIT AGREEMENT AND WAIVER
THIS FIFTH AMENDMENT TO CREDIT AGREEMENT AND WAIVER is made as of June 6, 2014 (this “Amendment”) with reference to that certain Credit Agreement dated as of August 9, 2010 (as amended and as in effect immediately prior to the effectiveness of this Amendment, the “Credit Agreement”), among CommonWealth REIT, a real estate investment trust organized under the laws of the State of Maryland (the “Borrower”), the lenders parties thereto (the “Lenders”), Wells Fargo Bank, National Association, as Administrative Agent (the “Administrative Agent”), and certain other parties.
WHEREAS, the Borrower notified the Administrative Agent and the Lenders that an Event of Default occurred under Section 10.1.(l)(ii) of the Credit Agreement as a result of the entire Board of Trustees being removed without cause pursuant to shareholder written consents (the “Change of Control Event of Default”);
WHEREAS, the Borrower, the Administrative Agent and the Lenders entered into that certain Forbearance Agreement Regarding Credit Agreement dated as of April 11, 2014 (the “Forbearance Agreement”) with respect to the Change of Control Event of Default and certain other specified Events of Default; and
WHEREAS, the Borrower has requested that the Administrative Agent and the Lenders waive the Change of Control Event of Default and certain other specified Events of Default.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties, the parties hereto agree as follows:
Section 1. Waiver. Subject to the terms and conditions of this Amendment, the Administrative Agent and the Lenders hereby waive the following Events of Default (the “Specified Events of Default”):
(a) the Change of Control Event of Default;
(b) the Event of Default occurring under Section 10.1.(b)(ii) of the Credit Agreement resulting from the failure of the Compliance Certificate provided by the Borrower pursuant to Section 8.3. of the Credit Agreement for the fiscal quarter ending March 31, 2014 to be substantially in the form required by the Credit Agreement;
(c) the Event of Default under Section 10.1.(b)(i) of the Credit Agreement resulting from the failure of the Borrower to provide notice to the Administrative Agent pursuant to Section 8.4.(h) of the Credit Agreement of the occurrence of the Event of Default described in the immediately preceding subsection (b); and
(d) the Event of Default under Section 10.1.(d)(iii) of the Credit Agreement resulting from the existence or occurrence of any of the Specified Events of Default (as defined in the Term Loan Amendment referred to below).
The Borrower, the Administrative Agent and the Lenders acknowledge that neither of the Events of Default described in item 1 of Schedule 1 of the Forbearance Agreement occurred.
Section 2. Specific Amendments to Credit Agreement. The parties hereto agree that the Credit Agreement is amended as follows:
(a) The Credit Agreement is amended by deleting the definitions of the terms “Business Management Agreement”, “Property Management Agreement” and “RMR” from Section 1.1.
(b) The Credit Agreement is amended by restating the definition of the term “Material Contract” in Section 1.1. in its entirety as follows:
“Material Contract” means any contract or other arrangement (other than Loan Documents and Specified Derivatives Contracts), whether written or oral, to which the Borrower, any Subsidiary or any other Loan Party is a party as to which the breach, nonperformance, cancellation or failure to renew by any party thereto could reasonably be expected to have a Material Adverse Effect.
(c) The Credit Agreement is amended by restating Section 10.1.(l) in its entirety as follows:
(l) Change of Control.
(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 35.0% of the total voting power of the then outstanding voting stock of the Borrower; or
(ii) At any time during (x) the period commencing on May 24, 2014 and ending on May 23, 2015 and (y) any period of 12 consecutive months ending after May 23, 2015, individuals who at the beginning of any such period constituted the Board of Trustees of the Borrower (together with any new trustees (A) whose election by such Board or (B) whose nomination for election by the shareholders of the Borrower, in the case of either (A) or (B), was approved by a vote of a majority of the trustees then still in office who were either trustees at the beginning of such period or whose election or nomination for election was previously so approved) cease for any reason to constitute a majority of the Board of Trustees of the Borrower then in office.
(d) The Credit Agreement is amended by replacing each of items 1 through 3 on Schedule 6.1(h) with “[Intentionally Omitted].”
Section 3. Conditions Precedent. The effectiveness of this Amendment (other than Section 6 below which shall become effective upon the Borrower’s execution and delivery of a counterpart of this Amendment to the Administrative Agent) 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 acknowledged and agreed by the Borrower and the Guarantors, and executed and delivered by the Administrative Agent and Lenders holding at least 66 2/3% of the aggregate amount of the Commitments;
(b) evidence that all fees, expenses and reimbursement amounts due and payable to the Administrative Agent, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(c) evidence that an amendment and waiver (the “Term Loan Amendment”) containing substantially the same terms and conditions as this Amendment has been entered into with respect to that certain Term Loan Agreement dated as of December 16, 2010 by and among the Borrower, the financial institutions party thereto as “Lenders”, Wells Fargo Bank, National Association, as Administrative Agent, and the other parties thereto; and
(d) such other documents, instruments and agreements as the Administrative Agent may reasonably request.
Section 4. No Waiver. Except for the waiver of the Specified Events of Default provided for in Section 1 above, neither the existence of this Amendment nor the agreements of the Administrative Agent and the Lenders herein is, nor shall either be deemed or construed in any way to be, a waiver of any Default or Event of Default.
Section 5. Effect; Termination of Forbearance Agreement. Except as otherwise provided herein, 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. Upon the effectiveness of this Amendment, the Forbearance Agreement shall be deemed terminated and of no further force or effect except for Sections 7 and 10 thereof which shall remain in effect.
Section 6. Release of Claims. Notwithstanding the failure of any condition precedent set forth in Section 3 above to be satisfied, the Borrower hereby forever releases and forever discharges the Administrative Agent, the Issuing Bank, the Lenders, the Lead Arrangers, the Syndication Agent, the Documentation Agents and their respective Affiliates and their and their Affiliates’ respective subsidiaries, parents, shareholders, partners, officers, directors, employees, agents, attorneys, heirs, successors and assigns, both present and former (collectively, the “Released Parties”) from any and all claims, actions, causes of action, defenses, suits, controversies, damages, judgments and demands whatsoever, asserted or unasserted, in contract, tort, law, equity or otherwise (collectively, “Claims”) which the Borrower has or may have against any of the Released Parties by reason of any action, failure to act, matter or thing whatsoever arising from or based on facts occurring prior to the date hereof that in any way may arise out of, be connected to or in any other way be related to any of the Loan Documents, including but not limited to any Claim that relates to, in whole or in part, directly or indirectly, (a) the making or administration of the Loans or Letters of Credit, (b) any such Claims based on fraud, mistake, duress, usury or misrepresentation, or any other Claim based on so-called “lender liability” theories, (c) any actions or omissions of any of the Administrative Agent, the Issuing Bank, any Lender or any other Released Party in connection with the initiation or continuing exercise of any right or remedy contained in the Loan Documents or available under Applicable Law or otherwise, (d) lost profits, (e) loss of business opportunity, (f) increased financing costs, (g) increased legal or other administrative fees or (h) damages to business reputation. Furthermore, the Borrower hereby covenants and agrees not to bring, commence, prosecute, maintain, or cause or permit to be brought, commenced, prosecuted or maintained, any suit or action, either at law or in equity, in any court or before any other administrative or judicial authority, regarding any cause of action or other Claim the Borrower may have against any of the Administrative Agent, the Issuing Bank, any Lender or any other Released Party arising out of, in connection with or in any way relating to any of the Loan Documents or otherwise.
Section 7. No Third Party Beneficiaries. No Person other than the Borrower, the Administrative Agent, the Issuing Bank and the Lenders is intended to be a beneficiary hereof and no Person other than the Borrower, the Administrative Agent, the Issuing Bank and the Lenders shall be authorized to rely upon the contents of this Amendment.
Section 8. Entire Agreement. This Amendment and the other Loan Documents constitute the entire understanding of the parties with respect to the subject matter hereof and thereof.
Section 9. Loan Document. This Amendment shall constitute a “Loan Document” for all purposes of the Credit Agreement.
Section 10. 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 11. 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. To facilitate execution, this Amendment and any amendments, waivers, consents or supplements may be executed in any number of counterparts as may be convenient or required (which may be effectively delivered by facsimile, in portable document format (“PDF”) or other similar electronic means). It shall not be necessary that the signature of, or on behalf of, each party, or that the signature of all persons required to bind any party, appear on each counterpart. All counterparts shall collectively constitute a single document. It shall not be necessary in making proof of this document to produce or account for more than a single counterpart containing the respective signatures of, or on behalf of, each of the parties hereto.
Section 12. Definitions. All capitalized terms not otherwise defined herein are used herein with the respective definitions given them in the Credit Agreement.
[Signatures on Following Page]
[Signature Page to Fifth Amendment to Credit Agreement and Waiver for CommonWealth REIT]
|
|
Very truly yours, | ||
|
|
| ||
|
|
WELLS FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent, Issuing Bank, Swingline Lender and a Lender | ||
|
|
| ||
|
|
| ||
|
|
By: |
/s/ Winita Lau | |
|
|
|
Name: |
Winita Lau |
|
|
|
Title: |
Vice President |
[Signatures Continued on Next Page]
[Signature Page to Fifth Amendment to Credit Agreement and Waiver for CommonWealth REIT]
|
|
BANK OF AMERICA, N.A., as a Lender | ||
|
|
| ||
|
|
| ||
|
|
By: |
/s/ Cheryl Sneor | |
|
|
|
Name: |
Cheryl Sneor |
|
|
|
Title: |
Vice President |
[Signatures Continued on Next Page]
[Signature Page to Fifth Amendment to Credit Agreement and Waiver for CommonWealth REIT]
|
|
REGIONS BANK, as a Lender | ||
|
|
| ||
|
|
| ||
|
|
By: |
/s/ Michael R. Mellott | |
|
|
|
Name: |
Michael R. Mellot |
|
|
|
Title: |
Director |
[Signatures Continued on Next Page]
[Signature Page to Fifth Amendment to Credit Agreement and Waiver for CommonWealth REIT]
|
|
ROYAL BANK OF CANADA, as a Lender | ||
|
|
|
|
|
|
|
|
|
|
|
|
By: |
/s/ Dan LePage | |
|
|
|
Name: |
Dan LePage |
|
|
|
Title: |
Authorized Signatory |
[Signatures Continued on Next Page]
[Signature Page to Fifth Amendment to Credit Agreement and Waiver for CommonWealth REIT]
|
|
PNC BANK, NATIONAL ASSOCIATION, as a Lender | ||
|
|
|
|
|
|
|
|
|
|
|
|
By: |
/s/ John R. Roach, Jr. | |
|
|
|
Name: |
John R. Roach, Jr. |
|
|
|
Title: |
Vice President |
[Signatures Continued on Next Page]
[Signature Page to Fifth Amendment to Credit Agreement and Waiver for CommonWealth REIT]
|
|
TD BANK, N.A., as a Lender | ||
|
|
|
|
|
|
|
|
|
|
|
|
By: |
/s/ George Sullivan | |
|
|
|
Name: |
George Sullivan |
|
|
|
Title: |
Vice President |
[Signatures Continued on Next Page]
[Signature Page to Fifth Amendment to Credit Agreement and Waiver for CommonWealth REIT]
|
|
COMPASS BANK, as a Lender | ||
|
|
|
|
|
|
|
|
|
|
|
|
By: |
/s/ S. Kent Gorman | |
|
|
|
Name: |
S. Kent Gorman |
|
|
|
Title: |
Senior Vice President |
[Signatures Continued on Next Page]
[Signature Page to Fifth Amendment to Credit Agreement and Waiver for CommonWealth REIT]
|
|
SUMITOMO MITSUI BANKING CORPORATION, as a Lender | ||
|
|
|
|
|
|
|
|
|
|
|
|
By: |
/s/ William G. Karl | |
|
|
|
Name: |
William G. Karl |
|
|
|
Title: |
Executive Officer |
[Signatures Continued on Next Page]
[Signature Page to Fifth Amendment to Credit Agreement and Waiver for CommonWealth REIT]
|
|
THE BANK OF NEW YORK MELLON, as a Lender | ||
|
|
|
|
|
|
|
|
|
|
|
|
By: |
/s/ Helga Blum | |
|
|
|
Name: |
Helga Blum |
|
|
|
Title: |
Managing Director |
[Signatures Continued on Next Page]
[Signature Page to Fifth Amendment to Credit Agreement and Waiver for CommonWealth REIT]
|
|
BRANCH BANKING AND TRUST COMPANY, as a Lender | ||
|
|
|
|
|
|
|
|
|
|
|
|
By: |
/s/ Mark Edwards | |
|
|
|
Name: |
Mark Edwards |
|
|
|
Title: |
Senior Vice President |
[Signatures Continued on Next Page]
[Signature Page to Fifth Amendment to Credit Agreement and Waiver for CommonWealth REIT]
|
|
CAPITAL ONE, N.A., as a Lender | ||
|
|
|
|
|
|
|
|
|
|
|
|
By: |
/s/ Frederick H. Denecke | |
|
|
|
Name: |
Frederick H. Denecke |
|
|
|
Title: |
Senior Vice President |
[Signatures Continued on Next Page]
[Signature Page to Fifth Amendment to Credit Agreement and Waiver for CommonWealth REIT]
|
|
THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., as a Lender | ||
|
|
|
|
|
|
|
|
|
|
|
|
By: |
/s/ Charles Stewart | |
|
|
|
Name: |
Charles Stewart |
|
|
|
Title: |
Director |
[Signatures Continued on Next Page]
[Signature Page to Fifth Amendment to Credit Agreement and Waiver for CommonWealth REIT]
|
|
COMERICA BANK, as a Lender | ||
|
|
|
|
|
|
|
|
|
|
|
|
By: |
/s/ Casey L. Stevenson | |
|
|
|
Name: |
Casey L. Stevenson |
|
|
|
Title: |
Vice President |
[Signatures Continued on Next Page]
[Signature Page to Fifth Amendment to Credit Agreement and Waiver for CommonWealth REIT]
|
|
U.S. BANK NATIONAL ASSOCIATION, as a Lender | ||
|
|
|
|
|
|
|
|
|
|
|
|
By: |
/s/ David Heller | |
|
|
|
Name: |
David Heller |
|
|
|
Title: |
Senior Vice President |
[Signatures Continued on Next Page]
[Signature Page to Fifth Amendment to Credit Agreement and Waiver for CommonWealth REIT]
|
|
UNION BANK, N.A., as a Lender | ||
|
|
|
|
|
|
|
|
|
|
|
|
By: |
/s/ Charles Stewart | |
|
|
|
Name: |
Charles Stewart |
|
|
|
Title: |
Director |
[Signatures Continued on Next Page]
[Signature Page to Fifth Amendment to Credit Agreement and Waiver for CommonWealth REIT]
|
|
CHANG HWA COMMERCIAL BANK, LTD., NEW YORK BRANCH, as a Lender | ||
|
|
|
|
|
|
|
|
|
|
|
|
By: |
/s/ Eric Y.S. Tsai | |
|
|
|
Name: |
Eric Y.S. Tsai |
|
|
|
Title: |
V.P. & General Manager |
[Signatures Continued on Next Page]
[Signature Page to Fifth Amendment to Credit Agreement and Waiver for CommonWealth REIT]
|
|
RBS CITIZENS, N.A., as a Lender | ||
|
|
|
|
|
|
|
|
|
|
|
|
By: |
/s/ Craig Aframe | |
|
|
|
Name: |
Craig Aframe |
|
|
|
Title: |
Vice President |
[Signatures Continued on Next Page]
[Signature Page to Fifth Amendment to Credit Agreement and Waiver for CommonWealth REIT]
|
|
CITIBANK, N.A., as a Lender | ||
|
|
|
|
|
|
|
|
|
|
|
|
By: |
/s/ John C. Rowland | |
|
|
|
Name: |
John C. Rowland |
|
|
|
Title: |
Vice President |
[Signatures Continued on Next Page]
[Signature Page to Fifth Amendment to Credit Agreement and Waiver for CommonWealth REIT]
|
|
MORGAN STANLEY BANK, N.A., as a Lender | ||
|
|
|
|
|
|
|
|
|
|
|
|
By: |
/s/ Christopher Winthrop | |
|
|
|
Name: |
Christopher Winthrop |
|
|
|
Title: |
Authorized Signatory |
[Signatures Continued on Next Page]
[Signature Page to Fifth Amendment to Credit Agreement and Waiver for CommonWealth REIT]
|
|
UBS AG, STAMFORD BRANCH, as a Lender | ||
|
|
|
|
|
|
|
|
|
|
|
|
By: |
/s/ Lana Gifas | |
|
|
|
Name: |
Lana Gifas |
|
|
|
Title: |
Director |
|
|
|
|
|
|
|
|
|
|
|
|
By: |
/s/ Jennifer Anderson | |
|
|
|
Name: |
Jennifer Anderson |
|
|
|
Title: |
Associate Director |
[Signatures Continued on Next Page]
[Signature Page to Fifth Amendment to Credit Agreement and Waiver for CommonWealth REIT]
Acknowledged and accepted:
BORROWER:
COMMONWEALTH REIT
|
By: |
/s/ Orrin Shifrin |
| |
|
|
Name: |
Orrin Shifrin |
|
|
|
Title: |
Secretary |
|
GUARANTORS:
ASA PROPERTIES TRUST
BLUE DOG LLC
BLUE DOG PROPERTIES TRUST
CANDLER ASSOCIATES, L.L.C.
CANDLER PROPERTY TRUST
CW LA PROPERTIES TRUST
CW NOM LLC
FIRST ASSOCIATES LLC
HAWAII 2X5 O PROPERTIES TRUST
HRPT LENEXA PROPERTIES TRUST
HUB ACQUISITION TRUST
HUB MADRONE PROPERTIES LLC
HUB MID-WEST LLC
HUB PROPERTIES GA LLC
HUB PROPERTIES TRUST
HUB REALTY FUNDING, INC.
INDEMNITY COLLECTION CORPORATION
OSCAR PROPERTIES TRUST
|
By: |
/s/ Orrin Shifrin |
| |
|
|
Name: |
Orrin Shifrin |
|
|
|
Title: |
Secretary |
|
HRPT MEDICAL BUILDINGS REALTY TRUST
HUB MA REALTY TRUST
MOB REALTY TRUST
PUTNAM PLACE REALTY TRUST
|
By: |
/s/ Orrin Shifrin |
| |
|
|
Name: |
Orrin Shifrin |
|
|
|
Title: |
Trustee |
|
Exhibit 10.2
EXECUTION COPY
FOURTH AMENDMENT TO TERM LOAN AGREEMENT AND WAIVER
THIS FOURTH AMENDMENT TO TERM LOAN AGREEMENT AND WAIVER is made as of June 6, 2014 (this “Amendment”) with reference to that certain Term Loan Agreement dated as of December 16, 2010 (as amended and as in effect immediately prior to the effectiveness of this Amendment, the “Term Loan Agreement”), among CommonWealth REIT, a real estate investment trust organized under the laws of the State of Maryland (the “Borrower”), the lenders parties thereto (the “Lenders”), Wells Fargo Bank, National Association, as Administrative Agent (the “Administrative Agent”), and certain other parties.
WHEREAS, the Borrower notified the Administrative Agent and the Lenders that an Event of Default occurred under Section 10.1.(l)(ii) of the Term Loan Agreement as a result of the entire Board of Trustees being removed without cause pursuant to shareholder written consents (the “Change of Control Event of Default”);
WHEREAS, the Borrower, the Administrative Agent and the Lenders entered into that certain Forbearance Agreement Regarding Term Loan Agreement dated as of April 11, 2014 (the “Forbearance Agreement”) with respect to the Change of Control Event of Default and certain other specified Events of Default; and
WHEREAS, the Borrower has requested that the Administrative Agent and the Lenders waive the Change of Control Event of Default and certain other specified Events of Default.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties, the parties hereto agree as follows:
Section 1. Waiver. Subject to the terms and conditions of this Amendment, the Administrative Agent and the Lenders hereby waive the following Events of Default (the “Specified Events of Default”):
(a) the Change of Control Event of Default;
(b) the Event of Default occurring under Section 10.1.(b)(ii) of the Term Loan Agreement resulting from the failure of the Compliance Certificate provided by the Borrower pursuant to Section 8.3. of the Term Loan Agreement for the fiscal quarter ending March 31, 2014 to be substantially in the form required by the Term Loan Agreement;
(c) the Event of Default under Section 10.1.(b)(i) of the Term Loan Agreement resulting from the failure of the Borrower to provide notice to the Administrative Agent pursuant to Section 8.4.(h) of the Term Loan Agreement of the occurrence of the Event of Default described in the immediately preceding subsection (b); and
(d) the Event of Default under Section 10.1.(d)(iii) of the Term Loan Agreement resulting from the existence or occurrence of any of the Specified Events of Default (as defined in the Credit Agreement Amendment referred to below).
The Borrower, the Administrative Agent and the Lenders acknowledge that neither of the Events of Default described in item 1 of Schedule 1 of the Forbearance Agreement occurred.
Section 2. Specific Amendments to Term Loan Agreement. The parties hereto agree that the Term Loan Agreement is amended as follows:
(a) The Term Loan Agreement is amended by deleting the definitions of the terms “Business Management Agreement”, “Property Management Agreement” and “RMR” from Section 1.1.
(b) The Term Loan Agreement is amended by restating the definition of the term “Material Contract” in Section 1.1. in its entirety as follows:
“Material Contract” means any contract or other arrangement (other than Loan Documents and Specified Derivatives Contracts), whether written or oral, to which the Borrower, any Subsidiary or any other Loan Party is a party as to which the breach, nonperformance, cancellation or failure to renew by any party thereto could reasonably be expected to have a Material Adverse Effect.
(c) The Term Loan Agreement is amended by restating Section 10.1.(l) in its entirety as follows:
(l) Change of Control.
(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 35.0% of the total voting power of the then outstanding voting stock of the Borrower; or
(ii) At any time during (x) the period commencing on May 24, 2014 and ending on May 23, 2015 and (y) any period of 12 consecutive months ending after May 23, 2015, individuals who at the beginning of any such period constituted the Board of Trustees of the Borrower (together with any new trustees (A) whose election by such Board or (B) whose nomination for election by the shareholders of the Borrower, in the case of either (A) or (B), was approved by a vote of a majority of the trustees then still in office who were either trustees at the beginning of such period or whose election or nomination for election was previously so approved) cease for any reason to constitute a majority of the Board of Trustees of the Borrower then in office.
(d) The Term Loan Agreement is amended by replacing each of items 1 through 5 on Schedule 6.1(h) with “[Intentionally Omitted].”
Section 3. Conditions Precedent. The effectiveness of this Amendment (other than Section 6 below which shall become effective upon the Borrower’s execution and delivery of a counterpart of this Amendment to the Administrative Agent) 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 acknowledged and agreed by the Borrower and the Guarantors, and executed and delivered by the Administrative Agent and Lenders holding at least 66 2/3% of the principal amount of the aggregate outstanding Loans;
(b) evidence that all fees, expenses and reimbursement amounts due and payable to the Administrative Agent, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(c) evidence that an amendment and waiver (the “Credit Agreement Amendment”) containing substantially the same terms and conditions as this Amendment has been entered into with respect to that certain Credit Agreement dated as of August 9, 2010 by and among the Borrower, the financial institutions party thereto as “Lenders”, Wells Fargo Bank, National Association, as Administrative Agent, and the other parties thereto; and
(d) such other documents, instruments and agreements as the Administrative Agent may reasonably request.
Section 4. No Waiver. Except for the waiver of the Specified Events of Default provided for in Section 1 above, neither the existence of this Amendment nor the agreements of the Administrative Agent and the Lenders herein is, nor shall either be deemed or construed in any way to be, a waiver of any Default or Event of Default.
Section 5. Effect; Termination of Forbearance Agreement. Except as otherwise provided herein, the terms and conditions of the Term Loan 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. Upon the effectiveness of this Amendment, the Forbearance Agreement shall be deemed terminated and of no further force or effect except for Sections 7 and 10 thereof which shall remain in effect.
Section 6. Release of Claims. Notwithstanding the failure of any condition precedent set forth in Section 3 above to be satisfied, the Borrower hereby forever releases and forever discharges the Administrative Agent, the Lenders, the Lead Arrangers, the Syndication Agents and their respective Affiliates and their and their Affiliates’ respective subsidiaries, parents, shareholders, partners, officers, directors, employees, agents, attorneys, heirs, successors and assigns, both present and former (collectively, the “Released Parties”) from any and all claims, actions, causes of action, defenses, suits, controversies, damages, judgments and demands whatsoever, asserted or unasserted, in contract, tort, law, equity or otherwise (collectively, “Claims”) which the Borrower has or may have against any of the Released Parties by reason of any action, failure to act, matter or thing whatsoever arising from or based on facts occurring prior to the date hereof that in any way may arise out of, be connected to or in any other way be related to any of the Loan Documents, including but not limited to any Claim that relates to, in whole or in part, directly or indirectly, (a) the making or administration of the Loans, (b) any such Claims based on fraud, mistake, duress, usury or misrepresentation, or any other Claim based on so-called “lender liability” theories, (c) any actions or omissions of any of the Administrative Agent, any Lender or any other Released Party in connection with the initiation or continuing exercise of any right or remedy contained in the Loan Documents or available under Applicable Law or otherwise, (d) lost profits, (e) loss of business opportunity, (f) increased financing costs, (g) increased legal or other administrative fees or (h) damages to business reputation. Furthermore, the Borrower hereby covenants and agrees not to bring, commence, prosecute, maintain, or cause or permit to be brought, commenced, prosecuted or maintained, any suit or action, either at law or in equity, in any court or before any other administrative or judicial authority, regarding any cause of action or other Claim the Borrower may have against any of the Administrative Agent, any Lender or any other Released Party arising out of, in connection with or in any way relating to any of the Loan Documents or otherwise.
Section 7. No Third Party Beneficiaries. No Person other than the Borrower, the Administrative Agent and the Lenders is intended to be a beneficiary hereof and no Person other than the Borrower, the Administrative Agent and the Lenders shall be authorized to rely upon the contents of this Amendment.
Section 8. Entire Agreement. This Amendment and the other Loan Documents constitute the entire understanding of the parties with respect to the subject matter hereof and thereof.
Section 9. Loan Document. This Amendment shall constitute a “Loan Document” for all purposes of the Term Loan Agreement.
Section 10. 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 11. 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. To facilitate execution, this Amendment and any amendments, waivers, consents or supplements may be executed in any number of counterparts as may be convenient or required (which may be effectively delivered by facsimile, in portable document format (“PDF”) or other similar electronic means). It shall not be necessary that the signature of, or on behalf of, each party, or that the signature of all persons required to bind any party, appear on each counterpart. All counterparts shall collectively constitute a single document. It shall not be necessary in making proof of this document to produce or account for more than a single counterpart containing the respective signatures of, or on behalf of, each of the parties hereto.
Section 12. Definitions. All capitalized terms not otherwise defined herein are used herein with the respective definitions given them in the Term Loan Agreement.
[Signatures on Following Page]
[Signature Page to Fourth Amendment to Term Loan Agreement and Waiver for CommonWealth REIT]
|
|
Very truly yours, | ||
|
|
| ||
|
|
WELLS FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent and a Lender | ||
|
|
| ||
|
|
| ||
|
|
By: |
/s/ Winita Lau | |
|
|
|
Name: |
Winita Lau |
|
|
|
Title: |
Vice President |
[Signatures Continued on Next Page]
[Signature Page to Fourth Amendment to Term Loan Agreement and Waiver for CommonWealth REIT]
|
|
REGIONS BANK, as a Lender | ||
|
|
| ||
|
|
| ||
|
|
By: |
/s/ Michael R. Mellott | |
|
|
|
Name: |
Michael R. Mellot |
|
|
|
Title: |
Director |
[Signatures Continued on Next Page]
[Signature Page to Fourth Amendment to Term Loan Agreement and Waiver for CommonWealth REIT]
|
|
ROYAL BANK OF CANADA, as a Lender | ||
|
|
| ||
|
|
| ||
|
|
By: |
/s/ Joshua Freedman | |
|
|
|
Name: |
Joshua Freedman |
|
|
|
Title: |
Authorized Signatory |
[Signatures Continued on Next Page]
[Signature Page to Fourth Amendment to Term Loan Agreement and Waiver for CommonWealth REIT]
|
|
COMPASS BANK, as a Lender | ||
|
|
| ||
|
|
| ||
|
|
By: |
/s/ S. Kent Gorman | |
|
|
|
Name: |
S. Kent Gorman |
|
|
|
Title: |
Senior Vice President |
[Signatures Continued on Next Page]
[Signature Page to Fourth Amendment to Term Loan Agreement and Waiver for CommonWealth REIT]
|
|
U.S. BANK NATIONAL ASSOCIATION, as a Lender | ||
|
|
| ||
|
|
| ||
|
|
By: |
/s/ David Heller | |
|
|
|
Name: |
David Heller |
|
|
|
Title: |
Senior Vice President |
[Signatures Continued on Next Page]
[Signature Page to Fourth Amendment to Term Loan Agreement and Waiver for CommonWealth REIT]
|
|
PNC BANK, NATIONAL ASSOCIATION, as a Lender | ||
|
|
| ||
|
|
| ||
|
|
By: |
/s/ John R. Roach, Jr. | |
|
|
|
Name: |
John R. Roach, Jr. |
|
|
|
Title: |
Vice President |
[Signatures Continued on Next Page]
[Signature Page to Fourth Amendment to Term Loan Agreement and Waiver for CommonWealth REIT]
|
|
THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., as a Lender | ||
|
|
| ||
|
|
| ||
|
|
By: |
/s/ Charles Stewart | |
|
|
|
Name: |
Charles Stewart |
|
|
|
Title: |
Director |
[Signatures Continued on Next Page]
[Signature Page to Fourth Amendment to Term Loan Agreement and Waiver for CommonWealth REIT]
|
|
CAPITAL ONE, N.A., as a Lender | ||
|
|
| ||
|
|
| ||
|
|
By: |
/s/ Frederick H. Denecke | |
|
|
|
Name: |
Frederick H. Denecke |
|
|
|
Title: |
Senior Vice President |
[Signatures Continued on Next Page]
[Signature Page to Fourth Amendment to Term Loan Agreement and Waiver for CommonWealth REIT]
|
|
UNION BANK, N.A., as a Lender | ||
|
|
| ||
|
|
| ||
|
|
By: |
/s/ Charles Stewart | |
|
|
|
Name: |
Charles Stewart |
|
|
|
Title: |
Director |
[Signatures Continued on Next Page]
[Signature Page to Fourth Amendment to Term Loan Agreement and Waiver for CommonWealth REIT]
|
|
BRANCH BANKING AND TRUST COMPANY, as a Lender | ||
|
|
| ||
|
|
| ||
|
|
By: |
/s/ Mark Edwards | |
|
|
|
Name: |
Mark Edwards |
|
|
|
Title: |
Senior Vice President |
[Signatures Continued on Next Page]
[Signature Page to Fourth Amendment to Term Loan Agreement and Waiver for CommonWealth REIT]
|
|
TD BANK, N.A., as a Lender | ||
|
|
| ||
|
|
| ||
|
|
By: |
/s/ George Sullivan | |
|
|
|
Name: |
George Sullivan |
|
|
|
Title: |
Vice President |
[Signatures Continued on Next Page]
[Signature Page to Fourth Amendment to Term Loan Agreement and Waiver for CommonWealth REIT]
|
|
COMERICA BANK, as a Lender | ||
|
|
| ||
|
|
| ||
|
|
By: |
/s/ Casey L. Stevenson | |
|
|
|
Name: |
Casey L. Stevenson |
|
|
|
Title: |
Vice President |
[Signatures Continued on Next Page]
[Signature Page to Fourth Amendment to Term Loan Agreement and Waiver for CommonWealth REIT]
|
|
SUMITOMO MITSUI BANKING CORPORATION, as a Lender | ||
|
|
| ||
|
|
| ||
|
|
By: |
/s/ William G. Karl | |
|
|
|
Name: |
William G. Karl |
|
|
|
Title: |
Executive Officer |
[Signatures Continued on Next Page]
[Signature Page to Fourth Amendment to Term Loan Agreement and Waiver for CommonWealth REIT]
|
Acknowledged and accepted: |
| ||
|
|
| ||
|
BORROWER: |
| ||
|
|
| ||
|
COMMONWEALTH REIT |
| ||
|
|
| ||
|
|
| ||
|
By: |
/s/ Orrin Shifrin |
| |
|
|
Name: |
Orrin Shifrin |
|
|
|
Title: |
Secretary |
|
|
|
| ||
|
GUARANTORS: |
| ||
|
|
| ||
|
ASA PROPERTIES TRUST |
| ||
|
BLUE DOG LLC |
| ||
|
BLUE DOG PROPERTIES TRUST |
| ||
|
CANDLER ASSOCIATES, L.L.C. |
| ||
|
CANDLER PROPERTY TRUST |
| ||
|
CW LA PROPERTIES TRUST |
| ||
|
CW NOM LLC |
| ||
|
FIRST ASSOCIATES LLC |
| ||
|
HAWAII 2X5 O PROPERTIES TRUST |
| ||
|
HRPT LENEXA PROPERTIES TRUST |
| ||
|
HUB ACQUISITION TRUST |
| ||
|
HUB MADRONE PROPERTIES LLC |
| ||
|
HUB MID-WEST LLC |
| ||
|
HUB PROPERTIES GA LLC |
| ||
|
HUB PROPERTIES TRUST |
| ||
|
HUB REALTY FUNDING, INC. |
| ||
|
INDEMNITY COLLECTION CORPORATION |
| ||
|
OSCAR PROPERTIES TRUST |
| ||
|
|
| ||
|
|
| ||
|
By: |
/s/ Orrin Shifrin |
| |
|
|
Name: |
Orrin Shifrin |
|
|
|
Title: |
Secretary |
|
|
|
| ||
|
HRPT MEDICAL BUILDINGS REALTY TRUST |
| ||
|
HUB MA REALTY TRUST |
| ||
|
MOB REALTY TRUST |
| ||
|
PUTNAM PLACE REALTY TRUST |
| ||
|
|
| ||
|
|
| ||
|
By: |
/s/ Orrin Shifrin |
| |
|
|
Name: |
Orrin Shifrin |
|
|
|
Title: |
Trustee |
|