UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
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Date of Report (Date of Earliest Event Reported): |
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June 26, 2017 |
RAIT Financial Trust
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(Exact name of registrant as specified in its charter)
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Maryland |
1-14760 |
23-2919819 |
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_____________________ (State or other jurisdiction |
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______________ (I.R.S. Employer |
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of incorporation) |
File Number) |
Identification No.) |
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Two Logan Square, 100 N. 18th St., 23rd Floor, Philadelphia, Pennsylvania |
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19103 |
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_________________________________ (Address of principal executive offices) |
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___________ (Zip Code) |
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Registrant’s telephone number, including area code: |
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(215) 207-2100 |
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N/A
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Former name or former address, if changed since last report
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§ 230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§ 240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
On June 26, 2017, RAIT Financial Trust ("RAIT") entered into a First Amendment (the “1st Barclays Floating Guaranty Amendment”) to the previously disclosed Guaranty (the "Barclays Floating Guaranty") dated as of December 23, 2014, as amended, whereby RAIT guaranteed the obligations of RAIT’s subsidiary, RAIT CRE Conduit IV, LLC (" RAIT CRE Conduit IV "), under the previously disclosed Master Repurchase Agreement dated as of December 23, 2014 between RAIT CRE Conduit IV and Barclays Bank PLC ("Barclays"), as amended (the "Barclays Floating MRA") for the benefit of Barclays. The 1st Barclays Floating Guaranty Amendment amends the financial covenants binding RAIT and certain related defined terms in the Barclays Floating Guaranty. Simultaneously with entering into the 1st Barclays Floating Guaranty Amendment, the aggregate principal amount available under the Barclays Floating MRA was increased from $150.0 million to $250.0 million. The above summary of the 1st Barclays Floating Guaranty Amendment does not purport to be complete and is qualified in its entirety by the 1st Barclays Floating Guaranty Amendment attached to this Current Report on Form 8-K as Exhibit 10.1 and incorporated by reference herein.
On June 26, 2017, RAIT entered into a Third Amendment (the “3rd Barclays Fixed Guaranty Amendment”) to the previously disclosed Guaranty (the "Barclays Fixed Guaranty") dated as of November 23, 2011, as amended, whereby RAIT guaranteed the obligations of RAIT’s subsidiary, RAIT CMBS Conduit II, LLC ("RAIT CMBS Conduit II") under the previously disclosed Master Repurchase Agreement dated as of November 23, 2011 between RAIT CMBS Conduit II and Barclays, as amended (the "Barclays Fixed MRA") for the benefit of Barclays. The 3rd Barclays Fixed Guaranty Amendment amends the financial covenants binding RAIT and certain related defined terms in the Barclays Fixed Guaranty. Simultaneously with entering into the 3rd Barclays Fixed Guaranty Amendment, the aggregate principal amount available under the Barclays Fixed MRA was reduced from $100.0 million to $25.0 million. The above summary of the 3rd Barclays Fixed Guaranty Amendment does not purport to be complete and is qualified in its entirety by the 3rd Barclays Fixed Guaranty Amendment attached to this Current Report on Form 8-K as Exhibit 10.2 and incorporated by reference herein.
Barclays and certain of its affiliates are full service financial institutions engaged in various activities, which may include securities trading, commercial and investment banking, financial advisory, investment management, investment research, principal investment, hedging, financing and brokerage activities. Barclays and its related entities have engaged, and may in the future engage, in commercial and investment banking transactions with RAIT and its affiliates in the ordinary course of their business. They have received, and expect to receive, customary compensation and expense reimbursement for these commercial and investment banking transactions. Furthermore, an affiliate of Barclays acts as a hedge counterparty in connection with certain capped call transactions that RAIT has entered into in connection with the issuance of its 4.00% Convertible Senior Notes Due 2033.
On June 29, 2017, RAIT and Citibank, N.A. ("Citibank") entered into the Second Amendment (the "2nd Citibank Guaranty Amendment") to the previously disclosed Amended and Restated Guaranty (the "Citibank Guaranty") dated as of July 28, 2014 whereby RAIT guaranteed the obligations of its subsidiaries, RAIT CMBS Conduit I, LLC ("RAIT CMBS Conduit I") and RAIT CRE Conduit III, LLC ("RAIT CRE Conduit III"), for the benefit of Citibank under the previously disclosed Amended and Restated Master Repurchase Agreement dated as of July 28, 2014 among RAIT CMBS Conduit I, RAIT CRE Conduit III, each as sellers, and Citibank, as buyer. RAIT CMBS Conduit I and RAIT CRE Conduit III acknowledged and agreed to the 2nd Citibank Guaranty Amendment. The 2nd Citibank Guaranty Amendment amends the financial covenants binding RAIT and certain related defined terms in the Citibank Guaranty. The above summary of the 2nd Citibank Guaranty Amendment does not purport to be complete and is qualified in its entirety by the 2nd Citibank Guaranty Amendment attached to this Current Report on Form 8-K as Exhibit 10.3 and incorporated by reference herein.
All of the exhibits hereto have been filed solely to provide information regarding their respective terms. Such exhibits may contain representations and warranties that the parties thereto made solely for the benefit of the other parties. In addition, such representations and warranties (i) may have been qualified by confidential disclosures made to the other party in connection with such document, (ii) may be subject to a materiality standard which may differ from what may be viewed as material by investors, (iii) were made only as of the date of such documents or such other date as is specified therein and (iv) may have been included in such documents for the purpose of allocating risk between or among the parties thereto rather than establishing matters as facts.
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Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant. |
The information set forth under Item 1.01 of this report is incorporated herein by reference.
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Item 9.01. |
Financial Statements and Exhibits. |
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(d) |
Exhibits. |
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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RAIT Financial Trust |
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June 30, 2017 |
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By: |
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/s/ Scott L.N. Davidson |
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Name: Scott L.N. Davidson |
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Title: Chief Executive Officer and President |
Exhibit 10.1
FIRST AMENDMENT TO GUARANTY
FIRST AMENDMENT TO GUARANTY, dated June 26, 2017 (this “Amendment”), by and between Barclays Bank PLC, a public limited company organized under the laws of England and Wales (together with its successors and assigns, “Purchaser”), and RAIT Financial Trust, a Maryland real estate investment trust (together with its successors and permitted assigns, “Guarantor”). Capitalized terms used and not otherwise defined herein shall have the meanings given to such terms in the Guaranty (as defined below and as amended hereby).
RECITALS
WHEREAS, Seller and Purchaser are parties to that certain Master Repurchase Agreement, dated as of December 23, 2014, as amended by that certain Omnibus Amendment to Master Repurchase Agreement and Other Transaction Documents, dated December 28, 2016 but effective as of December 20, 2016 (the “Omnibus Amendment”), by and among Seller, Purchaser and Guarantor (as the same may be further amended, modified, restated, replaced, waived, substituted, supplemented or extended from time to time, the “Repurchase Agreement”), and other Transaction Documents; and
WHEREAS, in connection with the Repurchase Agreement, Guarantor executed and delivered that certain Guaranty, dated as of December 23, 2014, by Guarantor for the benefit of Buyer, as amended by the Omnibus Amendment (as so amended, the “Guaranty”); and
WHEREAS, Guarantor and Purchaser desire to make certain modifications to the Guaranty as further set forth herein.
NOW THEREFORE, in consideration of the foregoing recitals, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto, intending to be legally bound, agree as follows:
ARTICLE 1
Amendment to GUARANTY
(a)Article V(g) of the Guaranty is hereby amended by deleting it in its entirety and replacing it with the following:
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(g) |
Financial Covenants. Guarantor shall at all times satisfy the following financial covenants: |
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(i) |
Minimum Adjusted Book Value. Guarantor shall at all times maintain an Adjusted Book Value of not less than the sum of (x) $250 million plus (y) 75% of the net proceeds received by Guarantor in connection with any issuance of Equity Interests in Guarantor, minus (z) 100% of the amount paid by Guarantor for the repurchase of any Equity Interests in Guarantor, in each case subsequent to November 16, 2016. |
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23571144.2
(ii) Minimum Fixed Charge Coverage Ratio. Guarantor shall at all times maintain a Fixed Charge Coverage Ratio of no less than 1.20 : 1.00. The Fixed Charge Coverage Ratio of Guarantor shall be determined by excluding the effects of Guarantor’s consolidation of its non-recourse CMBS style fixed-rate and/or floating-rate securitizations (i.e., the gross up effect of the assets and liabilities and related impacts to EBITDA and Interest Expense of these securitizations due to consolidation will be removed).
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(iii) |
Maximum Leverage. Guarantor shall at all times maintain a ratio of (x) Total Liabilities to (y) Adjusted Total Assets of no greater than 80%. The maximum leverage ratio of Guarantor shall be determined by excluding the effects of Guarantor’s consolidation of its non-recourse CMBS style fixed-rate and/or floating-rate securitizations (i.e., the gross up effect of the assets and liabilities of these securitizations due to consolidation will be removed). |
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(iv) |
Minimum Cash Liquidity. Guarantor shall at all times maintain Cash Liquidity of no less than $15,000,000. |
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(b) |
The definition “EBITDA” in Article 1 of the Guaranty is hereby amended by deleting it in its entirety and replacing it with the following: |
“EBITDA” shall mean, with respect to any Person for any period, the Consolidated Net Income of such Person for the four consecutive fiscal quarters of such Person most recently ended, excluding the effects of interest expense, taxes, depreciation, amortization, asset write-ups or impairment charges, provisions for loan losses, and changes in mark-to-market value(s) (both gains and losses) of financial instruments; provided, however, that EBITDA of Guarantor shall be calculated by excluding the effects of Guarantor’s consolidation of its non-recourse CMBS style fixed-rate and/or floating-rate securitizations (i.e., the gross up effect of the assets and liabilities and related impacts to EBITDA and Interest Expense of these securitizations due to consolidation will be removed).
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(c) |
The definition of “Fixed Charge Coverage Ratio” in Article 1 of the Guaranty is hereby amended by deleting it in its entirety and replacing it with the following: |
“Fixed Charge Coverage Ratio” shall mean shall mean, with respect to any Person, at any date of determination, the ratio of EBITDA to
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Interest Expense for the four consecutive fiscal quarters of such Person most recently ended.
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(d) |
The definition of “Interest Expense” in Article 1 of the Guaranty is hereby amended by deleting it in its entirety and replacing it with the following: |
“Interest Expense” shall mean, for any Person on any date, total interest expense, both expensed and capitalized, of such Person and its Subsidiaries for such period with respect to all outstanding Indebtedness of such Person and its Subsidiaries (including, without limitation, all commissions, discounts and other fees and charges owed with respect to letters of credit and bankers’ acceptance financing and net costs under interest rate protection agreements), determined on a consolidated basis in accordance with GAAP, net of interest income of such Person and its Subsidiaries for such period (determined on a consolidated basis in accordance with GAAP); provided, however, that the Interest Expense and Indebtedness of Guarantor shall be calculated by excluding the effects of Guarantor’s consolidation of its non-recourse CMBS style fixed-rate and/or floating-rate securitizations (i.e., the gross up effect of the assets and liabilities and related impacts to EBITDA and Interest Expense of these securitizations due to consolidation will be removed).
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The definition of “Total Liabilities” in Article 1 of the Guaranty is hereby amended by deleting it in its entirety and replacing it with the following: |
“Total Liabilities” shall mean, with respect to any Person on any date, all amounts that would be included under total liabilities on a balance sheet of such Person and its consolidated Subsidiaries at such date, determined on a consolidated basis in accordance with GAAP; provided, however, that the Total Liabilities of Guarantor shall be calculated by excluding the effects of Guarantor’s consolidation of its non-recourse CMBS style fixed-rate and/or floating-rate securitizations (i.e., the gross up effect of the assets and liabilities and related impacts to EBITDA and Interest Expense of these securitizations due to consolidation will be removed).
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(f) |
The definition of “Adjusted Total Assets” in Article 1 of the Guaranty is hereby amended by deleting it in its entirety and replacing it with the following: |
“Adjusted Total Assets” shall mean, with respect to any Person on any date, all amounts that would be included under total assets on a balance sheet of such Person and its consolidated Subsidiaries at such date, determined on a consolidated basis in accordance with GAAP, plus accumulated depreciation, minus (i) goodwill, and (ii) the amount of deferred financing expenses and amortizing intangibles, in the
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aggregate, that exceeds 10% of Adjusted Book Value; provided, however, that the Adjusted Total Assets of Guarantor shall be calculated by excluding the effects of Guarantor’s consolidation of its non-recourse CMBS style fixed-rate and/or floating-rate securitizations (i.e., the gross up effect of the assets and liabilities and related impacts to EBITDA and Interest Expense of these securitizations due to consolidation will be removed).
ARTICLE 2
Representations
Guarantor represents and warrants to Purchaser, as of the date of this Amendment, as follows:
(a)all representations and warranties made by it in the Guaranty are true and correct;
(b)it is duly incorporated or organized, validly existing and in good standing under the laws of its jurisdiction of organization and is duly qualified in each jurisdiction necessary to conduct business as presently conducted;
(c)it is duly authorized to execute and deliver this Amendment and to perform its obligations under the Guaranty, as amended and modified hereby, and has taken all necessary action to authorize such execution, delivery and performance;
(d)the person signing this Amendment on its behalf is duly authorized to do so on its behalf;
(e)the execution, delivery and performance of this Amendment will not violate any Requirement of Law applicable to it or its organizational documents or any agreement by which it is bound or by which any of its assets are affected;
(f)this Amendment has been duly executed and delivered by it; and
(g)the Guaranty, as amended and modified hereby, constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, other limitations on creditors’ rights generally and general principles of equity.
ARTICLE 3
EXPENSES
Guarantor shall pay on demand all of Purchaser’s out-of-pocket costs and expenses, including reasonable fees and expenses of accountants, attorneys and advisors, incurred in connection with the preparation, negotiation, execution and consummation of this Amendment.
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THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AND THE OBLIGATIONS, RIGHTS, AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS WITHOUT REGARD TO THE CONFLICT OF LAWS DOCTRINE APPLIED IN SUCH STATE (OTHER THAN SECTION 5-140 1 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK).
ARTICLE 5
MISCELLANEOUS
(a)Except as expressly amended or modified hereby, the Guaranty and the other Transaction Documents shall each be and shall remain in full force and effect in accordance with their terms.
(b)The Amendment may be executed in counterparts, each of which so executed shall be deemed to be an original, but all of such counterparts shall together constitute but one and the same instrument. The parties intend that faxed signatures and electronically imaged signatures (such as PDF files) shall constitute original signatures and are binding on all parties.
(c)The headings in this Amendment are for convenience of reference only and shall not affect the interpretation or construction of this Amendment.
(d)This Amendment may not be amended or otherwise modified, waived or supplemented except as provided in the Guaranty.
(e)This Amendment contains a final and complete integration of all prior expressions by the parties with respect to the subject matter hereof and shall constitute the entire agreement among the parties with respect to such subject matter, superseding all prior oral or written understandings.
(f)This Amendment and the Guaranty, as amended and modified hereby, is a Transaction Document and shall be construed in accordance with the terms and provisions of the Guaranty.
[SIGNATURES FOLLOW]
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IN WITNESS WHEREOF, the parties have caused this Amendment to be duly executed as of the date first above written.
PURCHASER:
BARCLAYS BANK PLC, a public limited company organized under the laws of England and Wales
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By: |
/s/ Francis X. Gilhool |
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
[Signature Page to First Amendment to Guaranty]
GUARANTOR:
RAIT FINANCIAL TRUST, a Maryland a Maryland real estate investment trust
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By: |
/s/ Paul W. Kopsky, Jr. |
[Signature Page to First Amendment to Guaranty]
Exhibit 10.2
THIRD AMENDMENT TO GUARANTY
THIRD AMENDMENT TO GUARANTY, dated June 26, 2017 (this “Amendment”), by and between Barclays Bank PLC, a public limited company organized under the laws of England and Wales (together with its successors and assigns, “Purchaser”), and RAIT Financial Trust, a Maryland real estate investment trust (together with its successors and permitted assigns, “Guarantor”). Capitalized terms used and not otherwise defined herein shall have the meanings given to such terms in the Guaranty (as defined below and as amended hereby).
RECITALS
WHEREAS, Seller and Purchaser are parties to that certain Master Repurchase Agreement, dated as of November 23, 2011, as amended by (i) that certain First Amendment to the Master Repurchase Agreement, dated as of December 27, 2011, by and between Seller and Purchaser, (ii) that certain Second Amendment to the Master Repurchase Agreement, dated as of February 16, 2012, by and between Seller and Purchaser, (iii) that certain First Omnibus Amendment to Master Repurchase Agreement and Other Transaction Documents, dated as of June 30, 2013 (the “First Omnibus Amendment”), by and among Seller, Purchaser and Guarantor, (iv) that certain Third Amendment to the Master Repurchase Agreement, dated December 12, 2014 but effective as of November 19, 2014, by and between Seller and Purchaser, and (v) that certain Second Omnibus Amendment to Master Repurchase Agreement and Other Transaction Documents, dated December 28, 2016 but effective as of November 16, 2016 (the “Second Omnibus Amendment”), by and among Seller, Purchaser and Guarantor (as the same may be further amended, modified, restated, replaced, waived, substituted, supplemented or extended from time to time, the “Repurchase Agreement”), and other Transaction Documents; and
WHEREAS, in connection with the Repurchase Agreement, Guarantor executed and delivered that certain Guaranty, dated as of November 23, 2011, by Guarantor for the benefit of Buyer, as amended by the First Omnibus Amendment, and as further amended by the Second Amendment to Guaranty, dated December 12, 2014 but effective as of November 19, 2014 between Purchaser and Guarantor, as further amended by the Second Omnibus Amendment (as so amended, the “Guaranty”); and
WHEREAS, Guarantor and Purchaser desire to make certain modifications to the Guaranty as further set forth herein.
NOW THEREFORE, in consideration of the foregoing recitals, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto, intending to be legally bound, agree as follows:
ARTICLE 1
Amendment to GUARANTY
(a)Article V(g) of the Guaranty is hereby amended by deleting it in its entirety and replacing it with the following:
23564593.4
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(i) |
Minimum Adjusted Book Value. Guarantor shall at all times maintain an Adjusted Book Value of not less than the sum of (x) $250 million plus (y) 75% of the net proceeds received by Guarantor in connection with any issuance of Equity Interests in Guarantor, minus (z) 100% of the amount paid by Guarantor for the repurchase of any Equity Interests in Guarantor, in each case subsequent to November 16, 2016. |
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(ii) Minimum Fixed Charge Coverage Ratio. Guarantor shall at all times maintain a Fixed Charge Coverage Ratio of no less than 1.20 : 1.00. The Fixed Charge Coverage Ratio of Guarantor shall be determined by excluding the effects of Guarantor’s consolidation of its non-recourse CMBS style fixed-rate and/or floating-rate securitizations (i.e., the gross up effect of the assets and liabilities and related impacts to EBITDA and Interest Expense of these securitizations due to consolidation will be removed).
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(iii) |
Maximum Leverage. Guarantor shall at all times maintain a ratio of (x) Total Liabilities to (y) Adjusted Total Assets of no greater than 80%. The maximum leverage ratio of Guarantor shall be determined by excluding the effects of Guarantor’s consolidation of its non-recourse CMBS style fixed-rate and/or floating-rate securitizations (i.e., the gross up effect of the assets and liabilities of these securitizations due to consolidation will be removed). |
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(iv) |
Minimum Cash Liquidity. Guarantor shall at all times maintain Cash Liquidity of no less than $15,000,000. |
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(b) |
The definition “EBITDA” in Article 1 of the Guaranty is hereby amended by deleting it in its entirety and replacing it with the following: |
“EBITDA” shall mean, with respect to any Person for any period, the Consolidated Net Income of such Person for the four consecutive fiscal quarters of such Person most recently ended, excluding the effects of interest expense, taxes, depreciation, amortization, asset write-ups or impairment charges, provisions for loan losses, and changes in mark-to-market value(s) (both gains and losses) of financial instruments; provided, however, that EBITDA of Guarantor shall be calculated by excluding the effects of
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Guarantor’s consolidation of its non-recourse CMBS style fixed-rate and/or floating-rate securitizations (i.e., the gross up effect of the assets and liabilities and related impacts to EBITDA and Interest Expense of these securitizations due to consolidation will be removed).
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(c) |
The definition of “Fixed Charge Coverage Ratio” in Article 1 of the Guaranty is hereby amended by deleting it in its entirety and replacing it with the following: |
“Fixed Charge Coverage Ratio” shall mean shall mean, with respect to any Person, at any date of determination, the ratio of EBITDA to Interest Expense for the four consecutive fiscal quarters of such Person most recently ended.
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(d) |
The definition of “Interest Expense” in Article 1 of the Guaranty is hereby amended by deleting it in its entirety and replacing it with the following: |
“Interest Expense” shall mean, for any Person on any date, total interest expense, both expensed and capitalized, of such Person and its Subsidiaries for such period with respect to all outstanding Indebtedness of such Person and its Subsidiaries (including, without limitation, all commissions, discounts and other fees and charges owed with respect to letters of credit and bankers’ acceptance financing and net costs under interest rate protection agreements), determined on a consolidated basis in accordance with GAAP, net of interest income of such Person and its Subsidiaries for such period (determined on a consolidated basis in accordance with GAAP); provided, however, that the Interest Expense and Indebtedness of Guarantor shall be calculated by excluding the effects of Guarantor’s consolidation of its non-recourse CMBS style fixed-rate and/or floating-rate securitizations (i.e., the gross up effect of the assets and liabilities and related impacts to EBITDA and Interest Expense of these securitizations due to consolidation will be removed).
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(e) |
The definition of “Total Liabilities” in Article 1 of the Guaranty is hereby amended by deleting it in its entirety and replacing it with the following: |
“Total Liabilities” shall mean, with respect to any Person on any date, all amounts that would be included under total liabilities on a balance sheet of such Person and its consolidated Subsidiaries at such date, determined on a consolidated basis in accordance with GAAP; provided, however, that the Total Liabilities of Guarantor shall be calculated by excluding the effects of Guarantor’s consolidation of its non-recourse CMBS style fixed-rate and/or floating-rate securitizations (i.e., the gross up effect of the assets and
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liabilities and related impacts to EBITDA and Interest Expense of these securitizations due to consolidation will be removed).
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(f) |
The definition of “Adjusted Total Assets” in Article 1 of the Guaranty is hereby amended by deleting it in its entirety and replacing it with the following: |
“Adjusted Total Assets” shall mean, with respect to any Person on any date, all amounts that would be included under total assets on a balance sheet of such Person and its consolidated Subsidiaries at such date, determined on a consolidated basis in accordance with GAAP, plus accumulated depreciation, minus (i) goodwill, and (ii) the amount of deferred financing expenses and amortizing intangibles, in the aggregate, that exceeds 10% of Adjusted Book Value; provided, however, that the Adjusted Total Assets of Guarantor shall be calculated by excluding the effects of Guarantor’s consolidation of its non-recourse CMBS style fixed-rate and/or floating-rate securitizations (i.e., the gross up effect of the assets and liabilities and related impacts to EBITDA and Interest Expense of these securitizations due to consolidation will be removed).
ARTICLE 2
Representations
Guarantor represents and warrants to Purchaser, as of the date of this Amendment, as follows:
(a)all representations and warranties made by it in the Guaranty are true and correct;
(b)it is duly incorporated or organized, validly existing and in good standing under the laws of its jurisdiction of organization and is duly qualified in each jurisdiction necessary to conduct business as presently conducted;
(c)it is duly authorized to execute and deliver this Amendment and to perform its obligations under the Guaranty, as amended and modified hereby, and has taken all necessary action to authorize such execution, delivery and performance;
(d)the person signing this Amendment on its behalf is duly authorized to do so on its behalf;
(e)the execution, delivery and performance of this Amendment will not violate any Requirement of Law applicable to it or its organizational documents or any agreement by which it is bound or by which any of its assets are affected;
(f)this Amendment has been duly executed and delivered by it; and
(g)the Guaranty, as amended and modified hereby, constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms, except as enforceability
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may be limited by bankruptcy, insolvency, other limitations on creditors’ rights generally and general principles of equity.
ARTICLE 3
EXPENSES
Guarantor shall pay on demand all of Purchaser’s out-of-pocket costs and expenses, including reasonable fees and expenses of accountants, attorneys and advisors, incurred in connection with the preparation, negotiation, execution and consummation of this Amendment.
ARTICLE 4
GOVERNING LAW
THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AND THE OBLIGATIONS, RIGHTS, AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS WITHOUT REGARD TO THE CONFLICT OF LAWS DOCTRINE APPLIED IN SUCH STATE (OTHER THAN SECTION 5-140 1 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK).
ARTICLE 5
MISCELLANEOUS
(a)Except as expressly amended or modified hereby, the Guaranty and the other Transaction Documents shall each be and shall remain in full force and effect in accordance with their terms.
(b)The Amendment may be executed in counterparts, each of which so executed shall be deemed to be an original, but all of such counterparts shall together constitute but one and the same instrument. The parties intend that faxed signatures and electronically imaged signatures (such as PDF files) shall constitute original signatures and are binding on all parties.
(c)The headings in this Amendment are for convenience of reference only and shall not affect the interpretation or construction of this Amendment.
(d)This Amendment may not be amended or otherwise modified, waived or supplemented except as provided in the Guaranty.
(e)This Amendment contains a final and complete integration of all prior expressions by the parties with respect to the subject matter hereof and shall constitute the entire agreement among the parties with respect to such subject matter, superseding all prior oral or written understandings.
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(f)This Amendment and the Guaranty, as amended and modified hereby, is a Transaction Document and shall be construed in accordance with the terms and provisions of the Guaranty.
[SIGNATURES FOLLOW]
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IN WITNESS WHEREOF, the parties have caused this Amendment to be duly executed as of the date first above written.
PURCHASER:
BARCLAYS BANK PLC, a public limited company organized under the laws of England and Wales
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By: |
/s/ Francis X. Gilhool |
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
[Signature Page to Third Amendment to Guaranty]
GUARANTOR:
RAIT FINANCIAL TRUST, a Maryland a Maryland real estate investment trust
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By: |
/s/ Paul W. Kopsky, Jr. |
[Signature Page to Third Amendment to Guaranty]
Exhibit 10.3
SECOND AMENDMENT TO AMENDED AND RESTATED GUARANTY
THIS SECOND AMENDMENT TO AMENDED AND RESTATED GUARANTY (this “Amendment”), dated as of June 29, 2017 (the “Effective Date”), is made by RAIT FINANCIAL TRUST., a Maryland real estate investment trust, whose address is Two Logan Square, 100 N. 18th Street, 23rd Floor, Philadelphia, Pennsylvania 19103 (“Guarantor”), for the benefit of CITIBANK, N.A., whose address is 388 Greenwich Street, New York, New York 10013 (together with its successors and/or assigns, “Buyer”), and is acknowledged and agreed to by RAIT CMBS CONDUIT I, LLC, a Delaware limited liability company, whose address is c/o RAIT. Financial Trust, Two Logan Square, 100 N. 18th Street, 23rd Floor, Philadelphia, Pennsylvania 19103 (“RAIT I”) and RAIT CRE CONDUIT III, LLC, a Delaware limited liability company, whose address is c/o RAIT. Financial Trust, Two Logan Square, 100 N. 18th Street, 23rd Floor, Philadelphia, Pennsylvania 19103 (“RAIT III”; and together with RAIT I, collectively, “Seller”).
W I T N E S S E T H:
WHEREAS, Seller and Buyer have entered into that certain Amended and Restated Master Repurchase Agreement, dated as of July 28, 2014, as amended by that certain First Amendment to Amended and Restated Master Repurchase Agreement, dated as of September 28, 2015, as further amended by that certain Second Amendment to Amended and Restated Master Repurchase Agreement, dated as of July 28, 2016 (collectively, as the same may be amended, supplemented, extended, restated, replaced or otherwise modified from time to time, the “Repurchase Agreement”);
WHEREAS, in connection with the Repurchase Agreement, Guarantor is a party to that certain Amended and Restated Guaranty, dated as of July 28, 2014, as amended by that certain First Amendment to Amended and Restated Guaranty, dated as of December 12, 2014 (collectively, as the same may be amended, supplemented, extended, restated, replaced or otherwise modified from time to time, the “Guaranty”), made for the benefit of Buyer;
WHEREAS, all capitalized terms used herein and not otherwise defined shall have the respective meanings set forth in the Repurchase Agreement or the Guaranty, as applicable;
WHEREAS, the parties hereto desire to modify certain terms and provisions of the Guaranty 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, the parties hereto, intending to be legally bound, agree as follows:
1.Modification of Guaranty. The Guaranty is hereby modified as of the Effective Date as follows:
(a)The following definitions are hereby added, in alphabetical order, to Section 1 of the Guaranty or, if already present in the Guaranty, amended and restated in their entirety, as follows:
“Adjusted Total Assets” means, with respect to any Person on any date, all amounts that would be included under total assets on a balance sheet of such Person and its consolidated Subsidiaries at such date, determined on a consolidated basis in accordance with GAAP, plus accumulated depreciation, minus (i) goodwill, and (ii) the amount of deferred financing expenses and amortizing intangibles, in the aggregate, that exceeds 10% of Adjusted Book Value; provided, however, that the Adjusted Total Assets of Guarantor shall be calculated by excluding the effects of Guarantor’s consolidation of its non-recourse CMBS style fixed-rate and/or floating-rate securitizations (i.e., the gross up effect of the assets and liabilities and related impacts to EBITDA and Interest Expense of these securitizations due to consolidation will be removed).
“Cash Liquidity” means, at any date of determination, unrestricted Cash.
“EBITDA” means, at any date of determination, the Consolidated Net Income for the four consecutive fiscal quarters of Guarantor most recently ended, excluding the effects of interest expense, taxes, depreciation, amortization, asset write-ups or impairment charges, provisions for loan losses, and changes in mark-to-market value(s) (both gains and losses) of financial instruments; provided, however, EBITDA of Guarantor shall be calculated by excluding the effects of Guarantor’s consolidation of its non-recourse CMBS style fixed-rate and/or floating-rate securitizations (i.e., the gross up effect of the assets and liabilities and related impacts to EBITDA and Interest Expense of these securitizations due to consolidation will be removed).
“Interest Expense” means, for Guarantor on any date, total interest expense, both expensed and capitalized, of Guarantor and its Subsidiaries for such period with respect to all outstanding Indebtedness of Guarantor and its Subsidiaries (including, without limitation, all commissions, discounts and other fees and charges owed with respect to letters of credit and bankers’ acceptance financing and net costs under interest rate protection agreements), determined on a consolidated basis in accordance with GAAP, net of interest income of Guarantor and its Subsidiaries for such period (determined on a consolidated basis in accordance with GAAP); provided, however, that the Interest Expense and Indebtedness of Guarantor shall be calculated by excluding the effects of Guarantor’s consolidation of its non-recourse CMBS style fixed-rate and/or floating-rate securitizations (i.e., the gross up effect of the assets and liabilities and related impacts to EBITDA and Interest Expense of these securitizations due to consolidation will be removed).
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“Total Liabilities” means, as of a particular date, all amounts that would be included under total liabilities on a balance sheet of Guarantor and its consolidated Subsidiaries at such date, determined on a consolidated basis in accordance with GAAP; provided, however, that the Total Liabilities of Guarantor shall be calculated by excluding the effects of Guarantor’s consolidation of its non-recourse CMBS style fixed-rate and/or floating-rate securitizations (i.e., the gross up effect of the assets and liabilities and related impacts to EBITDA and Interest Expense of these securitizations due to consolidation will be removed).
(b)The definition of “Cash Equivalents” and all references thereto in the Guaranty are hereby deleted in their entirety.
(c)The definition of “Total Liquidity” and all references thereto in the Guaranty are hereby deleted in their entirety.
(d)Section 5 of the Guaranty is hereby deleted in its entirety and amended and restated to read as follows:
5.Certain Financial Covenants. Guarantor shall not permit with respect to itself (and its Subsidiaries on a consolidated basis) any of the following to be breached, as determined quarterly on a consolidated basis in conformity with GAAP:
Minimum Adjusted Book Value. Adjusted Book Value to be less than the sum of (x) $250 million plus (y) 75% of the net proceeds received by Guarantor in connection with any issuance of Equity Interests in Guarantor, minus (z) 100% of the amount paid by Guarantor for the repurchase of any Equity Interests in Guarantor, in each case subsequent to June 30, 2017.
Minimum Fixed Charge Coverage Ratio. Fixed Charge Coverage Ratio to be less than 1.20:1.00. The Fixed Charge Coverage Ratio of Guarantor shall be determined by excluding the effects of Guarantor’s consolidation of its non-recourse CMBS style fixed-rate and/or floating-rate securitizations (i.e., the gross up effect of the assets and liabilities and related impacts to EBITDA and Interest Expense of these securitizations due to consolidation will be removed).
Maximum Leverage Ratio. Leverage Ratio to exceed 80%. The maximum Leverage Ratio of Guarantor shall be determined by excluding the effects of Guarantor’s consolidation of its non-recourse CMBS style fixed-rate and/or floating-rate securitizations (i.e., the gross up effect of the assets and liabilities of these securitizations due to consolidation will be removed).
Minimum Cash Liquidity. Cash Liquidity to be less than $15 million.
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2.Representations. Guarantor and Seller have 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 Guarantor and Seller and constitutes the legal, valid and binding obligation of Guarantor and Seller enforceable against Guarantor and 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 Guarantor or 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 Guarantor or 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 hereby acknowledges and agrees that, notwithstanding the execution and delivery of this Amendment and the amendment of the Guaranty hereunder, all of Guarantor’s obligations under the Guaranty remain in full force and effect (as amended by this Amendment) and the same are hereby irrevocably and unconditionally ratified and confirmed by Guarantor in all respects.
4.Conditions Precedent. This Amendment and its provision shall become effective upon the execution and delivery of this Amendment by a duly authorized officer of each of Buyer, Seller and Guarantor.
5.Agreement Regarding Expenses. Guarantor agrees to pay Buyer’s 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 Buyer’s counsel gives Guarantor an invoice for such expenses).
6.Full Force and Effect. Except as expressly modified hereby, all of the terms, covenants and conditions of the Guaranty and the other Transaction Documents remain unmodified and in full force and effect and are hereby ratified and confirmed by Guarantor and Seller. Any inconsistency between this Amendment and the Guaranty (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 Guaranty inconsistent with this Amendment. All references to the “Guaranty” in the Guaranty or to the “Guaranty” in any of the other Transaction Documents shall mean and refer to the Guaranty as modified and amended hereby.
7.No Waiver. Except with respect to the terms expressly modified by this Amendment, 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.
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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 Section 23(c) of the Guaranty.
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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.
GUARANTOR:
RAIT FINANCIAL TRUST
a Maryland real estate investment trust
By: /s/ Jamie Reyle
Name: Jamie Reyle
Title: General Counsel
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BUYER:
CITIBANK, N.A.
By: /s/ Richard B. Schlenger
Name: Richard B. Schlenger
Title: Authorized Signatory
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SELLER:
RAIT CMBS CONDUIT I, LLC,
a Delaware limited liability company
By: RAIT Funding, LLC,
a Delaware limited liability company,
its sole Member
By: RAIT JV TRS Sub, LLC,
its sole Member
By: RAIT JV TRS, LLC,
its sole Member
By: ITS MEMBERS:
RAIT Partnership, L.P.,
its Co Managing Member
By: RAIT General, INC.,
its General Partner
By: /s/ Jamie Reyle
Name: Jamie Reyle
Title: General Counsel
Taberna Realty Finance Trust, a
Maryland real estate investment
trust, its Co-Managing Member
By: /s/ Jamie Reyle
Name: Jamie Reyle
Title: General Counsel
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SELLER:
RAIT CRE CONDUIT III, LLC,
a Delaware limited liability company
By: RAIT Partnership, L.P.,
a Delaware limited partnership,
its sole Member and manager
By: RAIT General, INC.,
a Maryland corporation,
its sole general partner
By: /s/ Jamie Reyle
Name: Jamie Reyle
Title: General Counsel