First Amendment to Amended and Restated Guarantee Agreement, dated as of May 28, 2020, made by and between TPG RE Finance Trust Holdco, LLC and JPMorgan Chase Bank, National Association
FIRST AMENDMENT TO AMENDED AND RESTATED GUARANTEE AGREEMENT
FIRST AMENDMENT TO AMENDED AND RESTATED GUARANTEE AGREEMENT, dated as of May 28, 2020 (this Amendment) and effective as of April 1, 2020 (the Effective Date), by and between TPG RE FINANCE TRUST HOLDCO, LLC, a Delaware limited liability company (Guarantor), and JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, a national banking association (Buyer). Capitalized terms used but not otherwise defined herein shall have the meanings given to them in the Repurchase Agreement (as hereinafter defined).
WHEREAS, TPG RE Finance 1, Ltd., an exempted company incorporated with limited liability under the laws of the Cayman Islands (Seller) and Buyer are parties to that certain Master Repurchase Agreement, dated as of August 20, 2015 (as amended, restated, supplemented or otherwise modified from time to time, the Repurchase Agreement);
WHEREAS, Guarantor guaranteed the obligations of Seller under the Repurchase Agreement and the other Transaction Documents pursuant to that certain Amended and Restated Guarantee Agreement, dated as of May 4, 2018 (as heretofore amended, restated, supplemented or otherwise modified, the Guaranty), from Guarantor to Buyer; and
WHEREAS, Guarantor and Buyer wish to amend and modify the Guaranty upon the terms and conditions hereinafter set forth.
NOW THEREFORE, in consideration of the premises and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Guarantor and Buyer hereby agree that the Guaranty shall be amended and modified as follows:
1. Amendment of Guaranty. Guarantor and Buyer hereby agree that the Guaranty shall be amended and modified with retroactive effect effective as of the Effective Date as follows:
(a) Section 1 of the Guaranty is hereby amended by inserting the following new definitions in correct alphabetical order:
CECL Reserve shall mean, with respect to any Person and as of a particular date, all amounts determined in accordance with GAAP under ASU 2016-13 and recorded on the balance sheet of such Person and its consolidated Subsidiaries as of such date.
Equity Adjustment means, with respect to Guarantor and its Subsidiaries on a consolidated basis and as of a particular date, the sum of all CECL Reserves and any loan loss reserves, write-downs, impairments or realized losses taken against the value of any assets of Guarantor or its Subsidiaries from and after April 1, 2020 as of such date; provided, however, in no event shall Equity Adjustment exceed the amount of (a) Total Equity of Guarantor less (b) the product of Total Indebtedness of Guarantor multiplied by twenty-five percent (25%).
First Amendment Effective Date means April 1, 2020.
Total Adjusted Equity means, with respect to any Person, as of any date of determination, Total Equity of such Person as of such date plus Equity Adjustment for such Person as of such date.
(b) Section 1 of the Guaranty is hereby amended by deleting and replacing the definitions of Tangible Net Worth and Total Equity in their entirety with the following:
Tangible Net Worth shall mean, with respect to any Person, as of any date of determination, on a consolidated basis, (a) the total tangible assets of such Person, less (b) the total liabilities of such Person, in each case, on or as of such date and as determined in accordance with GAAP.
Total Equity shall mean, with respect to any Person, as of any date of determination, the sum of all shareholder equity of such Person and its Subsidiaries on a consolidated basis, as determined in accordance with GAAP, and the Series B Cumulative Redeemable Preferred Stock of TRT issued to PE Holder, L.L.C. (PE Holder) pursuant to the Investment Agreement dated as of May 28, 2020, between TRT and PE Holder, and held by PE Holder and/or any of its Affiliates.
(c) Section 8 of the Guaranty is hereby amended by adding a new clause (j) to read in its entirety as follows:
(j) All CECL Reserves and any loan loss reserves, write-downs, impairments or realized losses taken against the value of any assets of Guarantor or its Subsidiaries that have occurred from and after April 1, 2020 through and including May 28, 2020 are as set forth on Schedule 1 hereto.
(d) Section 9(a) of the Guaranty is hereby deleted in its entirety and replaced with the following:
(a) Guarantor hereby agrees that, until the Repurchase Obligations have been paid in full, Guarantor shall not, with respect to itself and its Subsidiaries on a consolidated basis, directly or indirectly:
(i) permit the ratio of Total Indebtedness to Total Adjusted Equity at any time to exceed 3.5 to 1.0;
(ii) permit Liquidity at any time to be less than the greater of (A) Ten Million and No/100 Dollars ($10,000,000.00) and (B) 5.0% of Guarantors Recourse Indebtedness;
(iii) permit the Tangible Net Worth at any time to be less than the sum of (A) $1,100,000,000.00, plus (B) seventy-five percent (75%) of the proceeds of all equity issuances (net of underwriting discounts and commissions, and other out-of-pocket expenses related to such equity issuances) made by Guarantor or TRT, without duplication, after the date of the First Amendment; and
(iv) as of any date of determination, permit the ratio of (A) EBITDA for the period of twelve (12) consecutive months ended on such date (if such date is the last day of a fiscal quarter) or the last day of the fiscal quarter most recently ended prior to such date (if such date is not the last day of a fiscal quarter) to (B) Interest Expense for such period to be less than (x) if such date of determination is a date prior to the First Amendment Effective Date, or from and after December 2, 2020, 1.5 to 1.0, and (y) if such date of determination is a date from and after the First Amendment Effective Date but prior to December 2, 2020, 1.4 to 1.0.
(e) A new clause (d) is hereby added to Section 9 of the Guaranty, reading in its entirety as follows:
(d) Guarantor shall provide prompt written notice to Buyer, but in no event more than five (5) calendar days, after incurring any CECL Reserves or any loan loss reserves, write-downs, impairments or realized losses taken against the value of any assets of Guarantor or its Subsidiaries after May 28, 2020.
(f) A new Schedule 1 is hereby added to the Guaranty as set forth on Exhibit A to this Amendment.
2. Amendment of Transaction Documents. From and after the date hereof, all references in the Repurchase Agreement and the other Transaction Documents to the Guarantee Agreement shall be deemed to refer to the Guaranty as amended and modified by this Amendment and as same may be further amended, modified and/or restated.
3. Reaffirmation of Representations and Warranties. Guarantor hereby represents and warrants to Buyer that, as of the date hereof, (i) it has the power to execute, deliver and perform its respective obligations under this Amendment, (ii) this Amendment has been duly executed and delivered by it for good and valuable consideration, and constitutes its legal, valid and binding obligation enforceable against it in accordance with its terms subject to bankruptcy, insolvency, and other limitations on creditors rights generally and to equitable principles, and (iii) neither the execution and delivery of this Amendment, nor the consummation by it of the transactions contemplated by this Amendment, nor compliance by it with the terms, conditions and provisions of this Amendment will conflict with or result in a breach of any of the terms, conditions or provisions of (A) its organizational documents, (B) any contractual obligation to which it is now a party or the rights under which have been assigned to it or the obligations under which have been assumed by it or to which its assets are subject or constitute a default thereunder, or result thereunder in the creation or imposition of any lien upon any of its assets, other than pursuant to this Amendment, (C) any judgment or order, writ, injunction, decree or demand of any court applicable to it, or (D) any applicable Requirement of Law, in the case of clauses (B)-(D) above, to the extent that such conflict or breach is reasonably likely to result in a Material Adverse Effect. Guarantor hereby represents and warrants to Buyer that all of the representations and warranties set forth in Section 8 of the Guaranty remain true and correct in all material respects as of the date hereof.
4. Counterparts. This Amendment may be executed in counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute one and the same instrument, and the words executed, signed, signature, and
words of like import as used above and elsewhere in this Amendment or in any other certificate, agreement or document related to this transaction shall include, in addition to manually executed signatures, images of manually executed signatures transmitted by facsimile or other electronic format (including, without limitation, pdf, tif or jpg) and other electronic signatures (including, without limitation, any electronic sound, symbol, or process, attached to or logically associated with a contract or other record and executed or adopted by a person with the intent to sign the record). The use of electronic signatures and electronic records (including, without limitation, any contract or other record created, generated, sent, communicated, received, or stored by electronic means) shall be of the same legal effect, validity and enforceability as a manually executed signature or use of a paper-based record-keeping system to the fullest extent permitted by applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act and any other applicable law, including, without limitation, any state law based on the Uniform Electronic Transactions Act or the Uniform Commercial Code.
5. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW PRINCIPLES THEREOF.
6. Expenses. Seller hereby acknowledges and agrees that Seller shall be responsible for all reasonable out-of-pocket costs and expenses of Buyer in connection with documenting and consummating the modifications contemplated by this Amendment, including, but not limited to, the reasonable fees and expenses of Buyers external legal counsel.
7. Reaffirmation of Guaranty. Guarantor acknowledges and agrees that, except as modified hereby, the Guaranty remains unmodified and in full force and effect and enforceable in accordance with its terms, including, for the avoidance of doubt, Section 9(c) of the Guaranty. Guarantor hereby acknowledges the execution and delivery of the side letter dated as of the date hereof between Buyer and Seller and agrees that it continues to be bound by the Guaranty notwithstanding the execution and delivery of such side letter and the impact of the changes set forth therein.
8. Repurchase Agreement, Guaranty and Transaction Documents in Full Force and Effect. Except as expressly amended hereby, Seller and Guarantor acknowledge and agree that all of the terms, covenants and conditions of the Repurchase Agreement and the Transaction Documents remain unmodified and in full force and effect and are hereby ratified and confirmed in all respects.
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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.
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, a national banking association
|Name:||Thomas N. Cassino|
[Signature Page to First Amendment to Amended and Restated Guarantee Agreement]
TPG RE FINANCE TRUST HOLDCO, LLC,
a Delaware limited liability company
Acknowledged and Agreed as of the date first set forth above:
|TPG RE FINANCE 1, LTD.,|
|an exempted company incorporated with limited liability under the laws of the Cayman Islands|
[Signature Page to First Amendment to Amended and Restated Guarantee Agreement]
EXHIBIT A TO AMENDMENT NO. 1 TO AMENDED AND RESTATED GUARANTY
CECL Reserves and any loan loss reserves, write-downs, impairments or realized losses taken against the value of any assets of Guarantor or its Subsidiaries that have occurred from and after April 1, 2020 through and including May 28, 2020