FIRST AMENDMENT TO GUARANTY
Exhibit 10.2
EXECUTION VERSION
FIRST AMENDMENT TO GUARANTY
This First Amendment to Guaranty (this “Amendment”), effective as of December 31, 2018, is by and between KKR REAL ESTATE FINANCE HOLDINGS L.P., a Delaware limited partnership (the “Guarantor”)
and XXXXXXX XXXXX BANK USA, a New York chartered bank (“Buyer”). Capitalized terms used but not otherwise defined herein shall have the meanings given to them in the Repurchase Agreement (as defined below).
W I T N E S S E T H:
WHEREAS, KREF LENDING III LLC, a Delaware limited liability company (together with its successors and permitted assigns, “QRS Seller”), KREF LENDING III
TRS LLC, a Delaware limited liability company (together with its successors and permitted assigns, “TRS Seller”; together with QRS Seller, the “Sellers” and each a “Seller”) and Buyer have entered into that certain Amended and
Restated Master Repurchase Agreement, dated as of November 1, 2017 (as heretofore amended and as may be further amended, modified and/or restated from time to time, the “Repurchase Agreement”);
WHEREAS, in connection with the Repurchase Agreement, the Guarantor executed and delivered that certain Limited
Guaranty, dated as of September 30, 2016, in favor of Buyer (as amended hereby and as may be further amended, restated, supplemented or otherwise modified from time to time, the “Guaranty”);
WHEREAS, the Guarantor and Buyer wish to modify certain terms and provisions of the Guaranty.
NOW, THEREFORE, the parties hereto agree as follows:
(a) Each of the following definitions in Article 1 of the Guaranty are hereby deleted and replaced as follows:
““Total Assets” means, with respect to any Person, on any date of determination, an amount equal to the aggregate book value of all assets owned by such Person and its Consolidated
Subsidiaries and the proportionate share of such Person of all assets owned by Affiliates of such Person as consolidated in accordance with GAAP, less (a) amounts owing to such Person and its Consolidated Subsidiaries from any Affiliate thereof, or
from officers, employees, partners, members, directors, shareholders or other Persons similarly affiliated with such Person or any Affiliate thereof, (b) Intangible Assets, and (c) prepaid taxes and expenses, all on or as of such date, and (d) the
amount of non-recourse Indebtedness owing pursuant to securitization transactions that are not issued or sponsored by Guarantor, Affiliates of Guarantor and/or Affiliates of Manager (e.g. commercial real estate CLOs (including, without limitation,
any CMBS investments)) that result from the consolidation of “variable interest entities” under the requirements of the Accounting Standards Codification Section 810, as amended, modified or supplemented from time to time, and (e) the amount of any
non-recourse Indebtedness owing pursuant to a financing or securitization transaction such as a REMIC securitization, a collateralized loan obligation transaction or any other similar transaction.”
““Total Indebtedness” means, with respect to any Person, as of any date of determination, the aggregate Indebtedness (other than Contingent Liabilities not reflected on such Person’s
consolidated balance sheet) of such Person and its Consolidated Subsidiaries plus the proportionate share of all Indebtedness (other than Contingent Liabilities not reflected on such Person’s consolidated balance sheet) of all non-Consolidated
Subsidiaries of such Person as of such date, all on or as of such date and determined in accordance with GAAP, less (a) the amount of non-recourse Indebtedness owing pursuant to securitization transactions that are not issued or sponsored by
Guarantor, Affiliates of Guarantor and/or Affiliates of Manager (e.g. commercial real estate CLOs (including, without limitation, any CMBS investments)) that result from the consolidation of “variable interest entities” under the requirements of the
Accounting Standards Codification Section 810, as amended, modified or supplemented from time to time, and (b) the amount of any non-recourse Indebtedness owing pursuant to a financing or securitization transaction such as a REMIC securitization, a
collateralized loan obligation transaction or any other similar transaction.”
2. Effectiveness. The effectiveness of this Amendment is subject to receipt by Buyer of the following:
(a) Amendment. This Amendment, duly executed and delivered by Guarantor and Buyer.
(b) Fees. Payment by Sellers of the actual costs and expenses, including, without limitation, the reasonable fees and expenses of counsel to Buyer, incurred by Buyer in connection with this
Amendment and the transactions contemplated hereby.
3. Binding Effect; No Partnership; Counterparts. The provisions of the Guaranty, as amended hereby, shall be binding upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns. Nothing herein contained shall be deemed or construed to create a partnership or joint venture between any of the parties hereto. For the purpose of facilitating the execution of this Amendment as herein provided,
this Amendment may be executed simultaneously in any number of counterparts, each of which shall be deemed to be an original, and such counterparts when taken together shall constitute but one and the same instrument.
4. Further Agreements. Guarantor agrees to execute and deliver such additional documents, instruments or agreements as may be reasonably requested by Buyer and as may be necessary or appropriate
from time to time to effectuate the purposes of this Amendment.
5. Governing Law. The provisions of Section 19 of the Guaranty are incorporated herein by reference.
6. Headings. The headings of the sections and subsections of this Amendment are for convenience of reference only and shall not be considered a part hereof nor shall they be deemed to limit or
otherwise affect any of the terms or provisions hereof.
7. References to Transaction Documents. All references to the Guaranty in any Transaction Document, or in any other document executed or delivered in connection therewith shall, from and
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after the execution and delivery of this Amendment, be deemed a reference to the Guaranty as amended hereby, unless the context expressly requires otherwise.
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the
day first written above.
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BUYER:
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XXXXXXX SACHS BANK USA, a New York state-chartered bank
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By:
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/s/ Xxxxx X. Xxxxxx
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Name:
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Xxxxx X. Xxxxxx
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Title:
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Authorized Person
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[Signature Page to Amendment to Guaranty]
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GUARANTOR:
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KKR REAL ESTATE FINANCE HOLDINGS L.P.
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a Delaware limited partnership
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By: KKR REAL ESTATE FINANCE TRUST INC., its general partner
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By:
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/s/ Xxxxxxx Xxxxxxx
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Name:
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Xxxxxxx Xxxxxxx
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Title:
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Authorized Signatory
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[Signature Page to Amendment to Guaranty]
