Third Amendment to Fee Agreement, dated May 1, 2019, among Citibank, N.A., TRMT CB Lender LLC and Tremont Mortgage Trust
Exhibit 10.1
THIRD AMENDMENT TO FEE AGREEMENT
THIS THIRD AMENDMENT TO FEE AGREEMENT (this Amendment), dated as of May 1, 2019 (the Effective Date), is made by and among CITIBANK, N.A. (together with its successors and/or assigns, Buyer), TRMT CB LENDER LLC, a Delaware limited liability company (Seller), and for the purpose of acknowledging and agreeing to the provision set forth in Section 3 hereof, TREMONT MORTGAGE TRUST, a Maryland real estate investment trust (Guarantor).
W I T N E S S E T H:
WHEREAS, Seller and Buyer have entered into that certain Master Repurchase Agreement, dated as of February 9, 2018, as amended by the First Amendment to Master Repurchase Agreement, dated as of November 6, 2018, and the Second Amendment to Master Repurchase Agreement, dated as of the date hereof (as such agreement may be further amended, supplemented, extended, restated, replaced or otherwise modified from time to time, the Repurchase Agreement);
WHEREAS, in connection with the Repurchase Agreement, Seller and Buyer entered into that certain Fee Agreement, dated as of February 9, 2018, as amended by the First Amendment to Fee Agreement, dated as of November 6, 2018 and the Second Amendment to Fee Agreement, dated as of February 4, 2019 (as the same may be further amended, supplemented or otherwise modified from time to time, the Fee Agreement);
WHEREAS, all capitalized terms used herein and not otherwise defined shall have the respective meanings set forth in the Repurchase Agreement; and
WHEREAS, Seller and Buyer desire to modify the definitions of Facility Amount and Supplemental Facility Fee as set forth herein.
NOW, THEREFORE, in consideration of ten dollars ($10) and for other good and valuable consideration, the receipt and legal sufficiency of which are hereby acknowledged, Seller and Buyer covenant and agree as follows as of the Effective Date, and Guarantor acknowledges and agrees as to the provision set forth in Section 3 as of the Effective Date:
1. Amendment to Fee Agreement.
(a) The following definitions in Section 1 of the Fee Agreement are hereby deleted in their entirety and replaced by the versions below:
Facility Amount shall mean $135,000,000; provided, that, notwithstanding the foregoing, commencing on and after the date Guarantor has issued Indebtedness which, in the reasonable determination of Buyer, satisfies the requirements to be treated as RMR Indebtedness, then the Facility Amount shall equal the sum of (x) $135,000,000 plus (y) the product of (i) three (3) and (ii) the greater of (a) the amount of RMR Indebtedness borrowed and (b) the net cash proceeds received by Guarantor in connection with a public offering of common stock or issuance of preferred equity, subject to a maximum Facility Amount equal to $250,000,000, which increase shall be effective on the date
such borrowing under the RMR Indebtedness occurs or the date such net cash proceeds are actually raised. Seller shall notify Buyer in writing of each borrowing under the RMR Indebtedness by not later than the second (2nd) Business Day prior to the Business Day on which funds are advanced or received, as applicable.
Supplemental Facility Fee shall mean an amount equal to the product of (x) 0.50%, (y) the increase in the Facility Amount described and established under the proviso to the definition of Facility Amount and (z) a fraction, expressed as a percentage, the numerator of which equals the number of calendar days from the Business Day on which such increase in the Facility Amount is effective to November 6, 2021 and the denominator of which equals 1,095.
2. Sellers Representations. Seller has taken all necessary action to authorize the execution, delivery and performance of this Amendment. This Amendment has been duly executed and delivered by or on behalf of Seller and constitutes the legal, valid and binding obligation of Seller enforceable against Seller in accordance with its terms subject to bankruptcy, insolvency, and other limitations on creditors rights generally and to equitable principles. No Event of Default has occurred and is continuing, and no Event of Default will occur as a result of the execution, delivery and performance by Seller of this Amendment. Any consent, approval, authorization, order, registration or qualification of or with any Governmental Authority required for the execution, delivery and performance by Seller of this Amendment has been obtained and is in full force and effect (other than consents, approvals, authorizations, orders, registrations or qualifications that if not obtained, are not reasonably likely to have a Material Adverse Effect).
3. Reaffirmation of Guaranty. Guarantor has executed this Amendment for the purpose of acknowledging and agreeing that, notwithstanding the execution and delivery of this Amendment and the amendment of the Repurchase Agreement hereunder, all of Guarantors obligations under the Guaranty remain in full force and effect and the same are hereby irrevocably and unconditionally ratified and confirmed by Guarantor in all respects.
4. Conditions Precedent. This Amendment and its provisions shall become effective upon the execution and delivery of this Amendment by a duly authorized officer of each of Seller, Buyer and Guarantor.
5. Agreement Regarding Expenses. Seller agrees to pay Buyers reasonable out of pocket expenses (including reasonable legal fees) incurred in connection with the preparation and negotiation of this Amendment promptly (and after Buyer or Buyers counsel gives Seller an invoice for such expenses).
6. Full Force and Effect. Except as expressly modified hereby, all of the terms, covenants and conditions of the Repurchase Agreement and the other Transaction Documents remain unmodified and in full force and effect and are hereby ratified and confirmed by Seller. Any inconsistency between this Amendment and the Repurchase Agreement (as it existed before this Amendment) shall be resolved in favor of this Amendment, whether or not this Amendment specifically modifies the particular provision(s) in the Repurchase Agreement inconsistent with this Amendment. All references to the Agreement in the Repurchase Agreement or to the
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Repurchase Agreement in any of the other Transaction Documents shall mean and refer to the Repurchase Agreement as modified and amended hereby.
7. No Waiver. The execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of the Buyer under the Repurchase Agreement, the Guaranty, any of the other Transaction Documents or any other document, instrument or agreement executed and/or delivered in connection therewith.
8. Headings. Each of the captions contained in this Amendment are for the convenience of reference only and shall not define or limit the provisions hereof.
9. Counterparts. This Amendment may be executed in any number of counterparts, and all such counterparts shall together constitute the same agreement. Signatures delivered by email (in PDF format) shall be considered binding with the same force and effect as original signatures.
10. Governing Law. This Amendment shall be governed in accordance with the terms and provisions of Article 19 of the Repurchase Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their duly authorized representatives as of the day and year first above written and effective as of the Effective Date.
| SELLER: | ||
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| TRMT CB LENDER LLC, | ||
| a Delaware limited liability company | ||
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| By: | /s/ G. Douglas Lanois | |
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| Name: | G. Douglas Lanois |
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| Title: | Chief Financial Officer and Treasurer |
[SIGNATURES PAGES CONTINUE ON NEXT PAGE]
| GUARANTOR: | |
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| TREMONT MORTGAGE TRUST, | |
| a Maryland real estate investment trust | |
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| By: | /s/ G. Douglas Lanois |
| Name: | G. Douglas Lanois |
| Title: | Chief Financial Officer and Treasurer |
[SIGNATURES PAGES CONTINUE ON NEXT PAGE]
| BUYER: | ||
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| CITIBANK, N.A. | ||
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| By: | /s/ Richard B. Schlenger | |
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| Name: | Richard B. Schlenger |
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| Title: | Authorized Signatory |