AMENDMENT NO. 1 TO EQUITY DISTRIBUTION AGREEMENT
Exhibit 1.1
AMENDMENT NO. 1 TO EQUITY DISTRIBUTION AGREEMENT
February 11, 2022
Xxxxx Fargo Securities, LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx Sachs & Co. LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
KKR Capital Markets LLC
00 Xxxxxx Xxxxx
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
JMP Securities LLC
000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Ladies and Gentlemen:
Reference is made to the Equity Distribution Agreement (the “Agreement”), dated as of February 22, 2019, by and among KKR Real Estate Finance Trust Inc., a Maryland corporation, KKR Real Estate Finance Manager LLC, a Delaware limited liability company, and Xxxxx Fargo Securities, LLC,
Xxxxxxx Sachs & Co. LLC and KKR Capital Markets LLC. Capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Agreement.
In connection with the foregoing, the parties hereto wish to amend the Agreement through this Amendment No. 1 to Equity Distribution
Agreement (this “Amendment”) to make certain changes to the Agreement with effect on and after the date hereof (the “Effective Date”).
SECTION 1. Amendments to the Agreement.
The parties hereto agree, from and after the Effective Date, that:
(a) The list of Agents on page 1 of the Agreement and the first paragraph of the Agreement are hereby amended and restated in their
entirety to read as follows:
“Xxxxx Fargo Securities, LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx Sachs & Co. LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
KKR Capital Markets LLC
00 Xxxxxx Xxxxx
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
JMP Securities LLC
000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Ladies and Gentlemen:
KKR Real Estate Finance Trust Inc., a Maryland corporation (the “Company”), and KKR Real Estate Finance Manager LLC, a Delaware limited liability company (the “Manager”), each, severally and not
jointly, confirm their respective agreements (this “Agreement”) with Xxxxx Fargo Securities, LLC (“Xxxxx Fargo Securities”), Xxxxxxx Xxxxx & Co. LLC (“Xxxxxxx Sachs”), KKR Capital Markets LLC (“KKR Capital Markets”) and JMP Securities LLC (“JMP” and, together with
Xxxxx Fargo Securities, Xxxxxxx Sachs and KKR Capital Markets, in their capacities as agent and/or principal under this Agreement, each an “Agent” and
collectively, the “Agents”), as follows:”
(b) Section 7(n) of the Agreement is hereby amended and restated in its entirety to read as follows:
“(n) Representation Dates; Certificate.
On or prior to the date that the first Securities are sold pursuant to the terms of this Agreement and each time the Company:
(1) files the Prospectus relating to the Placement Securities or amends or supplements the Registration Statement (other than a
prospectus supplement relating solely to an offering of securities other than the Placement Securities) or the Prospectus relating to the Placement Securities by means of a post-effective amendment, sticker, or supplement but not by means of
incorporation of documents by reference into the Registration Statement or the Prospectus relating to the Placement Securities;
(2) files an annual report on Form 10-K under the 1934 Act;
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(3) files a quarterly report on Form 10-Q under the 1934 Act; or
(4) files a report on Form 8-K containing amended financial information (other than an earnings release, to “furnish” information
pursuant to Items 2.02 or 7.01 of Form 8-K) under the 1934 Act (each such date of filing of one or more of the documents referred to in clauses (1)(i) through (iv) shall be a “Representation Date”);
each of the Company and the Manger shall furnish the Agents with a certificate, in the form attached hereto as Exhibit G-1 and G-2, respectively, within three Trading Days of any Representation Date.
The requirement to provide a certificate under this Section 7(n) shall be waived for any Representation Date occurring at a time at which no Placement Notice (as amended by the corresponding Acceptance, if applicable) is pending or if the only
Placement Notice pending is addressed solely to an Agent that has notified the Company and the Manager by email notice (or other method mutually agreed to in writing by the parties) addressed to each of the individuals from the Company and the
Manager as set forth on Exhibit B prior to the relevant Representation Date that it has elected to be a “Designated Agent” (a “Designated Agent Placement Notice”), which waiver shall continue until the earlier to occur of the date the Company delivers a Placement Notice (other than a Designated Agent Placement
Notice) hereunder (which for such calendar quarter shall be considered a Representation Date) and the next occurring Representation Date; provided, however, that such waiver shall not apply for any Representation Date on which the Company files its
annual report on Form 10-K. Notwithstanding the foregoing, if the Company subsequently decides to sell Placement Securities to an Agent other than a Designated Agent following a Representation Date when the Company relied on such waiver and did not
provide the Agents with a certificate under this Section 7(n), then before the Company delivers the Placement Notice or an Agent other than a Designated Agent sells any Placement Securities, each of the Company and the Manager shall provide the
Agents with a certificate, in the form attached hereto as Exhibit G-1 and G-2,
respectively, dated the date of the Placement Notice.”
(c) Section 15 of the Agreement is hereby amended and restated in its entirety to read as follows:
“Except as otherwise provided in this Agreement, all notices and other communications hereunder shall be in writing and shall be deemed
to have been duly given if mailed or transmitted by any standard form of telecommunication. Notices to the Agents shall be directed to Xxxxx Fargo Securities at Xxxxx Fargo Securities, LLC, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Equity
Syndicate, fax no. 000-000-0000; Xxxxxxx Xxxxx at Xxxxxxx Xxxxx & Co. LLC, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Registration Department; KKR Capital Markets at KKR Capital Markets LLC, 00 Xxxxxx Xxxxx, Xxxxx 0000, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Legal Department, fax no. 000-000-0000; and JMP Securities LLC, 000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, Attention: Xxxxxx Xxxxxx, Chief Legal Officer; and notices to the Company or the Manager shall
be directed to it at KKR Real Estate Finance Trust Inc., 00 Xxxxxx Xxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx, 10001, Attention: Legal Department, fax no. 212‑000-0000, with a copy to Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, Attention: Xxxxxx X. Xxxxxxx, fax
no. 000-000-0000 (with such fax to be confirmed by telephone to 000-000-0000).”
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(d) The first paragraph of Exhibit A of the Agreement is hereby amended and restated in its entirety as follows:
“Pursuant to the terms and subject to the conditions contained in the Equity Distribution Agreement between KKR Real Estate Finance
Trust Inc. (the “Company”) and Xxxxx Fargo Securities, LLC (“Xxxxx Fargo
Securities”), Xxxxxxx Xxxxx & Co. LLC (“Xxxxxxx Sachs”) and KKR Capital Markets LLC (“KKR Capital Markets”) dated February 22, 2019 (as amended on or prior to the date hereof, the “Agreement”), I hereby
request on behalf of the Company that [●] sell up to [●] shares of the Company’s common stock, par value $0.01 per share, at a minimum market price of $[●] per share.”
(e) Exhibit B of the Agreement is hereby amended and restated in its entirety to read as follows:
“AUTHORIZED INDIVIDUALS FOR PLACEMENT NOTICES AND
ACCEPTANCES
Xxxxx Fargo Securities, LLC
Xxxxxxxx X. Xxxxx
Managing Director
Xxxxxxxx.x.xxxxx@xxxxxxxxxx.xxx
Tel: 000-000-0000
Xxxxxxx X'Xxxxxxx
Managing Director
xxxxxxx.xxxxxxxx@xxxxxxxxxx.xxx
Tel: 000-000-0000
Xxxxx Xxxxxxxx
Associate/Operations Manager
Xxxxx.xxxxxxxx@xxxxxxxxxx.xxx
Phone: 000-000-0000
Xxxxxxx Sachs & Co. LLC
Xxxx Xxxxxxx
xxxx.xxxxxxx@xx.xxx
Tel: 000-000-0000
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Xxxx Xxxx
xxxx.xxxx@xx.xxx
Tel: 000-000-0000
JMP Securities LLC
Xxxx Xxxxxxx
xxxxxxxx@xxxxxxxxxxxxx.xxx
Xxxxx Xxxxxxxxx
xxxxxxxxxx@xxxxxxxxxxxxx.xxx
Xxxxxx Xxxxxx
xxxxxxx@xxxx.xxx
JPM Compliance
xxxxxxxxxx@xxxxxxxxxxxxx.xxx
xxxxxxxx@xxxxxxxxxxxxx.xxx
Xxxxx Xxxxxxxxx
xxxxxxxxxx@xxxxxxxxxxxxx.xxx
Xxxxxx Xxxxxx
xxxxxxx@xxxx.xxx
JPM Compliance
xxxxxxxxxx@xxxxxxxxxxxxx.xxx
KKR Capital Markets LLC
Xxxxx Xxxxx
Managing Director
xxxxx.xxxxx@xxx.xxx
Xxxx Xxx
Principal
xxxx.xxx@xxx.xxx
Xxxx Xxxxxxx
Principal
xxxx.xxxxxxx@xxx.xxx
Xxxxxxx Xxxxxxx
President and COO
Xxxxxxx.Xxxxxxx@xxx.xxx
Xxxx Xxxxx
CEO
Xxxx.Xxxxx@xxx.xxx
CEO
Xxxx.Xxxxx@xxx.xxx
Xxxxxxx Xxxxxx
CFO and Treasurer
Xxxxxxx.Xxxxxx@xxx.xxx
Xxxxxxx Xxxxxxxxxx
GC and Secretary
Xxxxxxx.Xxxxxxxxxx@xxx.xxx
Xxxxxxx.Xxxxxxxxxx@xxx.xxx
Xxxxxx Xxxxxxx
Authorized Person
Xxxxxx.Xxxxxxx@xxx.xxx
Authorized Person
Xxxxxx.Xxxxxxx@xxx.xxx
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KKR Real Estate Finance Manager LLC
Xxxxxxx Xxxxxxx
President and COO
Xxxxxxx.Xxxxxxx@xxx.xxx
Xxxxxxx Xxxxxx
CFO and Treasurer
Xxxxxxx.Xxxxxx@xxx.xxx
Xxxxxxx Xxxxxxxxxx
GC and Secretary
Xxxxxxx.Xxxxxxxxxx@xxx.xxx
GC and Secretary
Xxxxxxx.Xxxxxxxxxx@xxx.xxx
Xxxxxx Xxxxxxx
Authorized Person
Xxxxxx.Xxxxxxx@xxx.xxx”
Authorized Person
Xxxxxx.Xxxxxxx@xxx.xxx”
(f) Exhibit C of the Agreement is hereby amended and restated in its entirety to read as follows:
“SIGNIFICANT SUBSIDIARIES OF THE COMPANY
Name
|
Jurisdiction of Organization
|
Type of Entity
|
Names of General Partners/Managing Members/Sole Shareholder
|
KKR Real Estate Finance Holdings L.P.
|
Delaware
|
Limited Partnership
|
|
KREF Lending I LLC |
Delaware |
Limited Liability Company |
KREF Holdings I LLC |
KREF Lending V LLC
|
Delaware
|
Limited Liability Company
|
KREF Holdings V LLC
|
KREF Capital LLC
|
Delaware
|
Limited Liability Company
|
KKR Real Estate Finance Holdings L.P.
|
KREF Lending VII LLC
|
Delaware
|
Limited Liability Company
|
KREF Holdings VII LLC
|
KREF CLO Loan Seller LLC
|
Delaware
|
Limited Liability Company
|
KREF CLO Sub-REIT LLC”
|
(g) The first paragraph of Exhibit G-1 of the Agreement is hereby amended and restated in its entirety to read as follows:
“Each of Xxxxxxx Xxxxxxx, President and Chief Operating Officer, Xxxxxxx Xxxxxx, Chief Financial Officer and Treasurer, and Xxxxxx
Xxxxxxx, Authorized Person, of KKR Real Estate Finance Trust Inc. (the “Company”), pursuant to Section 7(n) of the Equity Distribution Agreement dated February
22, 2019, among the Company, KKR Real Estate Finance Manager LLC, and Xxxxx Fargo Securities, LLC, Xxxxxxx Sachs & Co. LLC and KKR Capital Markets LLC (as amended on or prior to the date hereof, the “Agreement”), does hereby certify on behalf of the Company, and not in the undersigned’s individual capacity, as follows:”
(h) The first paragraph of Exhibit G-2 of the Agreement is hereby amended and restated in its entirety to read as follows:
“Each of Xxxxxxx Xxxxxxx, President and Chief Operating Officer, Xxxxxxx Xxxxxx, Chief Financial Officer and Treasurer, and Xxxxxx
Xxxxxxx, Authorized Person, of KKR Real Estate Finance Manager LLC (the “Manager”), pursuant to Section 7(n) of the Equity Distribution Agreement dated
February 22, 2019, among the Manager, KKR Real Estate Finance Trust Inc. (the “Company”), Xxxxx Fargo Securities, LLC, Xxxxxxx Xxxxx & Co. LLC and KKR
Capital Markets LLC (as amended on or prior to the date hereof, the “Agreement”), does hereby certify on behalf of the Manager, and not in the undersigned’s
individual capacity, as follows:”
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(i) Schedule 40 of the Agreement is hereby amended and restated in its entirety to read as follows:
“TAXABLE REIT SUBSIDIARIES
KREF Lending III TRS LLC
KREF Finance TRS LLC
KREF Capital TRS LLC”
SECTION 2. No Other Amendments; References to Agreements.
Except as set forth in this Amendment, all other terms and provisions of the Agreement shall continue in full force and effect. All references to the Agreement in the Agreement or in any other document executed or delivered in connection therewith
shall, from the date hereof, be deemed a reference to the Agreement as amended by this Amendment. Notwithstanding anything to the contrary contained herein, this Amendment shall not have any effect on offerings or sales of the Securities prior to
the Effective Date or on the terms of the Agreement and the rights and obligations of the parties thereunder, insofar as they relate to such offerings or sales, including, without limitation, the representations, warranties and agreements (including
the indemnification and contribution provisions) contained in the Agreement.
SECTION 3. Applicable Law. This Amendment will be governed by
and construed in accordance with the laws of the State of New York applicable to contracts made and to be performed within the State of New York.
SECTION 4. Effect of Headings. The Section headings herein
are for convenience only and shall not affect the construction hereof.
SECTION 5. Counterparts. This Amendment may be executed in
two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Delivery of an executed Amendment by one party to the other may be made by facsimile or e-mail transmission.
[Signature Pages Follow]
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If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement by and among the parties hereto in accordance with its terms.
Very truly yours,
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By:
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/s/ Xxxxxxx Xxxxxxx
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Name: Xxxxxxx Xxxxxxx
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Title: Chief Operating Officer
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KKR REAL ESTATE FINANCE MANAGER LLC
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By:
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/s/ Xxxxxxx Xxxxxxx | |
Name: Xxxxxxx Xxxxxxx
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Title: Chief Operating Officer
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[Signature Page to Amendment No. 1 to Equity Distribution
Agreement]
CONFIRMED AND ACCEPTED, as of the date first above written:
XXXXX FARGO SECURITIES, LLC
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By:
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/s/ Xxxxxx Xxxxxxxxxx-Xxxxxxx |
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Authorized Signatory
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XXXXXXX SACHS & CO. LLC
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By:
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/s/ Xxxxx Xxxxx |
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Authorized Signatory
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KKR CAPITAL MARKETS LLC
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By:
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/s/ Xxxxx Xxxxx |
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Authorized Signatory
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JMP SECURITIES LLC
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By:
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/s/ Xxxxxxx Xxxxxxx |
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Authorized Signatory
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[Signature Page to Amendment No. 1 to Equity Distribution
Agreement]