Amendment No. 5 to Guarantee Agreement, dated as of June 30, 2021 between Wells Fargo Bank, National Association and KKR Real Estate Finance Holdings L.P

EX-10.5 6 a202106-exhibit105.htm EX-10.5

Exhibit 10.5

EXECUTION VERSION

AMENDMENT NO. 5 TO GUARANTEE AGREEMENT

AMENDMENT NO. 5 TO GUARANTEE AGREEMENT, dated as of June 30, 2021 (this “Amendment”), by and between WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association (“Buyer”) and KKR REAL ESTATE FINANCE HOLDINGS, L.P., a Delaware limited partnership (“Guarantor”). Capitalized terms used but not otherwise defined herein shall have the meanings given to them in the Repurchase Agreement (as defined below).

RECITALS

WHEREAS, (i) Seller and Buyer are parties to that certain Amended and Restated Master Repurchase and Securities Contract, dated as of April 7, 2017 (as amended by Amendment No. 1 to Amended and Restated Master Repurchase and Securities Contract, dated as of September 20, 2017, as further amended by Amendment No. 2 to Amended and Restated Master Repurchase and Securities Contract, dated as of November 28, 2018, as further amended by that certain Letter Agreement, dated as of December 2, 2019, and as further amended, restated, supplemented or otherwise modified and in effect from time to time, the “Repurchase Agreement”), and (ii) Guarantor executed and delivered to Buyer the Guarantee Agreement dated as of October 21, 2015 (as amended pursuant to Amendment No. 2 to Master Repurchase and Securities Contract, Guarantee Agreement, Servicing Agreement and Custodial Agreement, dated as of September 9, 2016, as amended pursuant to Amendment No. 3 to Guarantee Agreement, dated as of April 7, 2017, as amended pursuant to Amendment No. 4 to Guarantee Agreement, dated as of December 18, 2018, as further amended hereby and as further amended, restated, supplemented or otherwise modified and in effect from time to time, the “Guarantee Agreement”).

Therefore, in consideration of the premises and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Buyer and Guarantor hereby agree as follows:

SECTION 1. Guarantee Agreement Amendment. Guarantor and Buyer hereby agree that the Guarantee Agreement shall be amended and modified, effective as of the Amendment Effective Date, as follows:

(a) The defined terms, “Tangible Net Worth”, “Total Assets” and “ Total Indebtedness”, as set forth in Section 1 of the Guarantee Agreement, are each hereby amended and restated in their entirety to read as follows:

“Tangible Net Worth” shall mean, with respect to any Person and its Subsidiaries on a consolidated basis, as of any date of determination, (a) all amounts which

would be included under capital or shareholders’ equity (or like caption) on the consolidated balance sheet of such Person at such date, determined in accordance with GAAP as of such date, less (b)(i) amounts owing to such Person or any such consolidated Subsidiary from any Affiliates or from officers, employees, partners, members, directors, shareholders or other Persons similarly affiliated with such Person or any Affiliate thereof, (ii) Intangible Assets and (iii) prepaid taxes and/or expenses, all on or as of such date, plus (c)(i) aggregate amount of accumulated depreciation and amortization related to properties, and (ii) aggregate credit loss allowance related to “current expected credit loss” model prescribed by ASC 326, all on as of such date and determined in accordance with GAAP.

“Total Assets” shall mean, 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, (c) prepaid taxes and expenses, all on or as of such date, (d) the amount of non-recourse Indebtedness, including but not limited to, those 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, or other similar financing transactions, plus (a) aggregate amount of accumulated depreciation and amortization related to properties, and (b) aggregate credit loss allowance related to “current expected credit loss” model prescribed by ASC 326, all on as of such date and determined in accordance with GAAP.

“Total Indebtedness” shall mean, 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, including but not limited to, those 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, or other similar financing transactions, and (b) any funding obligations or commitments, under any commercial real estate loan investments, and/or any aggregate credit loss allowance related to “current

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expected credit loss” model prescribed by ASC 326, all on as of such date and determined in accordance with GAAP, related to such funding obligations or commitments.

(b) Section 9(d) of the Guarantee Agreement is hereby amended and restated in its entirety to read as follows:

(d) permit at any time the ratio, expressed as a percentage, the numerator of which shall equal the Total Indebtedness of Guarantor and its consolidated Subsidiaries and the denominator of which shall equal the Total Assets of Guarantor and its consolidated Subsidiaries, to at any time be greater than eighty-three point three three percent (83.33%).

SECTION 2. Conditions Precedent. This Amendment and its provisions shall become effective on the first date on which this Amendment has been executed and delivered by a duly authorized officer of each of Buyer and Guarantor (the “Amendment Effective Date”).

SECTION 3. Representations, Warranties and Covenants. Guarantor hereby represents and warrants to Buyer, as of the date hereof and as of the Amendment Effective Date, that (i) it is in full compliance with all of the terms and provisions set forth in the Guarantee Agreement on its part to be observed or performed, and (ii) no default or event of default thereunder has occurred or is continuing. Guarantor hereby confirms and reaffirms the representations, warranties and covenants contained in the Guarantee Agreement.

SECTION 4. Acknowledgements of Guarantor. Guarantor hereby acknowledges that Buyer is in compliance with its undertakings and obligations under the Guarantee Agreement and the other Repurchase Documents.

SECTION 5. Limited Effect. Except as expressly amended and modified by this Amendment, the Guarantee Agreement shall continue to be, and shall remain, in full force and effect in accordance with its terms; provided, however, that upon the Amendment Effective Date (w) each reference therein and herein to the “Guarantee Agreement” shall be deemed to include, in any event, this Amendment, (x) each reference therein and herein to the “Repurchase Documents” shall be deemed to include, in any event, this Amendment and (y) each reference in the Guarantee Agreement to “this Agreement”, “this Guarantee Agreement”, “the Guarantee”, “hereof”, “herein” or words of similar effect in referring to the Guarantee Agreement shall be deemed to be references to the Guarantee Agreement, as amended by this Amendment.

SECTION 6. No Novation, Effect of Agreement. Guarantor and Buyer have entered into this Amendment solely to amend the terms of the Guarantee Agreement and do not intend this Amendment or the transactions contemplated hereby to be, and this Amendment and the transactions contemplated hereby shall not be construed to be, a novation of any of the obligations owing by Seller, Pledgor or Guarantor (the “Repurchase Parties”) under or in connection with the Guarantee Agreement, the Repurchase Agreement, the Fee and Pricing Letter, the Pledge Agreement or any of the other Repurchase Documents to which any Repurchase Party is a party. It is the intention of each of the parties hereto that (i) the perfection and priority of all security interests securing the payment of the Repurchase Obligations of the

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Repurchase Parties under the Repurchase Agreement and the Pledge Agreement are preserved, (ii) the liens and security interests granted under the Repurchase Agreement and the Pledge Agreement continue in full force and effect, and (iii) any reference to the Guarantee Agreement in any such Repurchase Document shall be deemed to also reference this Amendment.

SECTION 7. Counterparts. This Amendment may be executed by each of the parties hereto on any number of separate counterparts, each of which shall be an original and all of which taken together shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page to this Amendment in Portable Document Format (PDF) or by facsimile transmission shall be effective as delivery of a manually executed original counterpart thereof.

SECTION 8. GOVERNING LAW. THIS AMENDMENT AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS AMENDMENT, THE RELATIONSHIP OF THE PARTIES TO THIS AMENDMENT, AND/OR THE INTERPRETATION AND ENFORCEMENT OF THE RIGHTS AND DUTIES OF THE PARTIES TO THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE CHOICE OF LAW RULES THEREOF. THE PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AMENDMENT.

[SIGNATURES FOLLOW]

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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered as of the day and year first above written.

	GUARANTOR:

	KKR REAL ESTATE FINANCE HOLDINGS, L.P., a Delaware limited partnership

	By:	/s/ Patrick Mattson
		Name: Patrick Mattson
		Title: Authorized Signatory

[SIGNATURES CONTINUE ON THE FOLLOWING PAGE]

Signature Page to Amendment No. 5 to Guarantee Agreement

	BUYER:

	WELLS FARGO BANK, N.A., a national banking association

	By: /s/ Allen Lewis

	Name: Allen Lewis

	Title: Managing Director

Signature Page to Amendment No. 5 to Guarantee Agreement