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AMENDED AND RESTATED GUARANTY

Guarantee Agreement

AMENDED AND RESTATED GUARANTY | Document Parties: Anthracite Capital BOFA Funding LLC | Anthracite Capital, Inc | Banc of America Mortgage Capital Corporation | Bank of America, N.A., | BlackRock Financial Management, Inc You are currently viewing:
This Guarantee Agreement involves

Anthracite Capital BOFA Funding LLC | Anthracite Capital, Inc | Banc of America Mortgage Capital Corporation | Bank of America, N.A., | BlackRock Financial Management, Inc

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Title: AMENDED AND RESTATED GUARANTY
Governing Law: New York     Date: 8/11/2008
Industry: Real Estate Operations     Law Firm: Latham Watkins     Sector: Services

AMENDED AND RESTATED GUARANTY, Parties: anthracite capital bofa funding llc , anthracite capital  inc , banc of america mortgage capital corporation , bank of america  n.a.  , blackrock financial management  inc
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Exhibit 10.3

 

AMENDED AND RESTATED GUARANTY

 

This AMENDED AND RESTATED GUARANTY is made and entered into by Anthracite Capital, Inc., a Maryland corporation whose address is c/o BlackRock Financial Management, Inc., 40 East 52nd Street, New York, New York 10022 (“ Guarantor ”), for the benefit of Bank of America, N.A., whose address is Mail Code NC1-027-19-01, Hearst Tower, 214 North Tryon Street, Charlotte, North Carolina 28555 (the “ Buyer Agent ”) for the benefit of Bank of America, N.A. (“ BANA ”) and Banc of America Mortgage Capital Corporation (“ BAMCC ”, individually and/or collectively, as the context may require, each a “ Buyer ” and collectively, the “ Buyers ”). This Guaranty is made with reference to the following facts (with some capitalized terms being defined below):

 

WHEREAS, Anthracite Capital BOFA Funding LLC, a Delaware limited liability company whose address is c/o BlackRock Financial Management, Inc., 40 East 52nd Street, New York, New York 10022 (“ Seller ”) is party to that certain Master Repurchase Agreement between Seller, the Buyer Agent and Buyers dated July 20, 2007, together with all annexes thereto (as amended, modified and in effect prior to the date hereof, the “ Existing Repurchase Agreement ”; as amended by the Amendment and Agreement, dated as of the date hereof (the “ Amendment ”) and as further amended, modified and in effect from time to time, the “ Repurchase Agreement ”). Capitalized terms used but not defined herein, shall have the meanings ascribed to such terms in the Repurchase Agreement.

 

WHEREAS, in connection with the Existing Repurchase Agreement, the Guarantor executed and delivered that certain Guaranty, dated as of July 20, 2007 (as amended, modified and in effect prior to the date hereof, the “ Existing Guaranty ”).

 

WHEREAS, the Seller, the   Buyer Agent and the Buyers have amended the Existing Repurchase Agreement pursuant to the terms of the Amendment.

 

WHEREAS, it is a requirement under the Amendment that the Existing Guaranty be amended and restated as provided herein and it is a condition precedent to the effectiveness of the Amendment that the Guarantor shall have executed and delivered this Guaranty to the Buyer Agent.

 

WHEREAS, Guarantor is the direct owner of 100% of the membership interests of Seller.

 

WHEREAS, Guarantor expects to benefit if the Seller, the Buyer Agent and the Buyers amend the Repurchase Agreement, and desires that the Buyer Agent and the Buyers amend the Repurchase Agreement, pursuant to the terms of the Amendment.

 

WHEREAS, the Buyer Agent and the Buyers would not amend, and would not be obligated to amend, the Repurchase Agreement with Seller unless Guarantor executed this Guaranty. This Guaranty is therefore delivered to the Buyer Agent to induce the Buyer Agent and the Buyers to amend the Repurchase Agreement pursuant to the terms of the Amendment.

 


 

NOW, THEREFORE, in exchange for good, adequate, and valuable consideration, the receipt of which Guarantor acknowledges, and to induce the Buyer Agent and the Buyers to enter into the Amendment and accept the Repurchase Agreement and the other Transaction Documents, Guarantor agrees as follows:

 

1.   DEFINITIONS.

 

For purposes of this Guaranty, the following terms shall be defined as set forth below. In addition, any capitalized term defined in the Repurchase Agreement but not defined in this Guaranty shall have the same meaning in this Guaranty as in the Repurchase Agreement.

 

1.1   Adjusted Net Income ” means, for any period, the Net Income of Guarantor and its consolidated Subsidiaries for such period, determined on a cash basis for such period without recognizing any trading portfolio gains or losses in general, and specifically without giving effect to:

 

(a)   depreciation and amortization,

 

(b)   gains or losses that are classified as “extraordinary” in accordance with GAAP,

 

(c)   capital gains or losses on sales of real estate,

 

(d)   capital gains or losses with respect to the disposition of investments in marketable securities,

 

(e)   any provision/benefit for income taxes for such period,

 

(f)   earnings from equity investments and unconsolidated joint ventures determined in accordance with GAAP,

 

(g)   losses attributable to the impairment of assets,

 

(h)   incentive fees paid in the form of the issuance of the Guarantor’s common stock,

 

(i)   Cash Interest Expense,

 

(j)   income or expense attributable to the ineffectiveness of hedging transactions, and

 

(k)   interest accretions, whether in favor or against the Guarantor.

 

Without limiting the foregoing, Net Income shall be determined before preferred stock dividends and shall include cash distributions from equity investments and unconsolidated joint ventures.

 

1.2   Capital Lease Obligations ” means, for any Person, all obligations of such Person to pay rent or other amounts under a lease of (or other agreement conveying the right to use) Property to the extent such obligations are required to be classified and accounted for as a capital lease on a balance sheet of such Person under GAAP, and for purposes of this Guaranty, the amount of such obligations shall be the capitalized amount thereof, determined in accordance with GAAP.

 

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1.3   Cash Interest Expense ” means, for any period, total interest expense, both expensed and capitalized, of Guarantor and its Subsidiaries for such period with respect to the Total Recourse Indebtedness, determined on a consolidated cash basis, for such period, and net of any interest accretions, whether in favor or against, with respect to debt.

 

1.4   Committed Facility ” shall mean a credit facility under which Guarantor is a borrower and a party acceptable to Buyer Agent is lender, whereby (i) the lender thereunder is unconditionally committed to make advances to Guarantor upon request by Guarantor (other than any conditions acceptable to Buyer Agent); (ii) no event of default (or event which with notice or the passage of time, or both, would constitute an event of default) has occurred thereunder; and (iii) the period where such advances may be requested expires more than ninety (90) days from the date of determination.

 

1.5   Debt Service Coverage Ratio ” or “ DSCR ” means, for any period, the ratio of Adjusted Net Income to Cash Interest Expense on the Total Recourse Indebtedness outstanding, it being understood that such determination shall be made on a cash basis.

 

1.6   Equity Proceeds ” means any proceeds received from the sale or issuance of any capital stock.

 

1.7   Guarantied Obligations ” means Seller’s obligations: (a) to fully and promptly pay all sums owed under the Transaction Documents at the times and according to the terms required by the Transaction Documents, without regard to any modification, suspension, or limitation of such terms not agreed to by the Buyer Agent, such as a modification, suspension, or limitation arising in or pursuant to any Insolvency Proceeding affecting Seller (even if any such modification, suspension, or limitation causes Seller’s obligation to become discharged or unenforceable and even if such modification was made with the Buyer Agent’s consent or agreement); and (b) to perform all other obligations contained in the Transaction Documents, whether monetary or nonmonetary, when and as required by the Transaction Documents, including all obligations of Seller relating to the Repurchase Transactions and the Security under the Transaction Documents.

 

1.8   Indebtedness ” means, for any Person without duplication: (a) obligations created, issued or incurred by such Person for borrowed money (whether by loan, the issuance and sale of debt securities or the sale of Property to another Person subject to an understanding or agreement, contingent or otherwise, to repurchase such Property from such Person); (b) obligations of such Person to pay the deferred purchase or acquisition price of Property or services, other than trade accounts payable (other than for borrowed money) arising, and accrued expenses incurred, in the ordinary course of business so long as such trade accounts payable are payable within ninety (90) days after the date the respective goods are delivered or the respective services are rendered; (c) Indebtedness of others secured by a Lien on the Property of such Person, whether or not the respective Indebtedness so secured has been assumed by such Person; (d) obligations (contingent or otherwise) of such Person in respect of letters of credit or similar instruments issued or accepted by banks and other financial institutions for account of such Person; (e) Capital Lease Obligations of such Person; (f) obligations of such Person under repurchase agreements, sale/buy-back agreements or like arrangements; (g) Indebtedness of others guarantied by such Person; (h) all obligations of such Person incurred in connection with the acquisition or carrying of fixed assets by such Person; (i) Indebtedness of general partnerships of which such Person is a general partner; (j) net liabilities under Hedging Agreements, as determined in accordance with GAAP; and (k) all Off-Balance Sheet Obligations of such Person

 

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1.9   Insolvency Proceeding ” means any case under Title 11 of the United States Code or any successor statute or any other insolvency, bankruptcy, reorganization, liquidation, or like proceeding, or other statute or body of law relating to creditors’ rights, whether brought under state, federal, or foreign law.

 

1.10   Intangible Assets ” means the excess of the cost over book value of assets acquired, patents, trademarks, trade names, copyrights, franchises and other intangible assets (excluding in any event the value of any residual securities).

 

1.11   Liens ” means any mortgage, lien, pledge, charge, security interest or similar encumbrance.

 

1.12   Mark-to-Market Indebtedness ” means the portion of Total Indebtedness of the Guarantor (which may be all of such Indebtedness) where the terms thereunder permit the holder thereof to make a margin call, accelerate all or part of such Indebtedness and/or request the repayment in full or in part prior to the applicable maturity date based on changes in the market value of the collateral securing such Indebtedness.

 

1.13   Marketable Securities ” means any of the following:

 

(i)   100% of the market value of negotiable debt obligations issued by the U.S. Treasury Department having a remaining maturity of less than 1 year; or

 

(ii)   95% of the market value of negotiable debt obligations issued by the U.S. Treasury Department having a remaining maturity of 1-10 years; or

 

(iii)   90% of the market value of negotiable debt obligations issued by the U.S. Treasury Department having a remaining maturity of more than 10 years; or

 

(iv)   90% of the market value of single-class mortgage participation certificates (“ FHLMC Certificates ”) in book-entry form backed by single-family residential mortgage loans, the full and timely payment of interest at the applicable certificate rate and the ultimate collection of principal of which are guaranteed by the Federal Home Loan Mortgage Corporation (excluding Real Estate Mortgage Investment Conduit (" REMIC ") or other multi-class pass-through certificates, collateralized mortgage obligations, pass-through certificates backed by adjustable rate mortgages, securities paying interest or principal only and similar derivative securities); or

 

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(v)   90% of the market value of single-class mortgage pass-through certificates (“ FNMA Certificates ”) in book-entry form backed by single-family residential mortgage loans, the full and timely payment of interest at the applicable certificate rate and ultimate collection of principal of which are guaranteed by the Federal National Mortgage Association (excluding REMIC or other multi-class pass-through certificates, pass-through certificates backed by adjustable rate mortgages collateralized mortgage obligations, securities paying interest or principal only and similar derivative securities); or

 

(vi)   90% of the market value of single-class fully modified pass-through certificates (“ GNMA Certificates ”) in book-entry form backed by single-family residential mortgage loans, the full and timely payment of principal and interest of which is guaranteed by the Government National Mortgage Association (excluding REMIC or other multi-class pass-through certificates, collateralized mortgage obligations, pass-through certificates backed by adjustable rate mortgages, securities paying interest or principal only and similar derivatives securities); or

 

(vii)   85% of all actively and regularly traded investment-grade residential mortgage-backed securities; or

 

(viii)   such other collateral as Guarantor and Buyer Agent may agree, with such valuation percentage applied thereto as Buyer Agent, in its sole discretion acting in good faith shall deem appropriate.

 

1.14   Net Income ” means, for any period and for Guarantor and its consolidated Subsidiaries, the consolidated net income (or loss) of Guarantor and its consolidated Subsidiaries for such period as determined on a consolidated basis in accordance with GAAP as adjusted in accordance with the terms hereof.

 

1.15   Non-Recourse Indebtedness ” means, with respect to any Person, Indebtedness for borrowed money in respect of which recourse for payment (except for customary exceptions for fraud, misapplication of funds, environmental indemnities, and other customary exceptions to non-recourse provisions) is contractually limited to specific assets encumbered by a Lien securing such Indebtedness.

 

1.16   Off-Balance Sheet Obligations ” mean, with respect to any Person and its consolidated Subsidiaries determined on a consolidated basis as of any date of determination thereof, without duplication and to the extent not included as a liability on the consolidated balance sheet of such Person and its consolidated Subsidiaries in accordance with GAAP: (a) the monetary obligations under any financing lease or so-called “ synthetic ”, tax retention or off-balance sheet lease transaction which, upon the application of any insolvency laws to such Person or any of its consolidated Subsidiaries, would be characterized as indebtedness; (b) the monetary obligations under any sale and leaseback transaction which does not create a liability on the consolidated balance sheet of such Person and its consolidated Subsidiaries; or (c) any other monetary obligation arising with respect to any other transaction which (i) is characterized as indebtedness for tax purposes but not for accounting purposes in accordance with GAAP or (ii) is the functional equivalent of or takes the place of borrowing but which does not constitute a liability on the consolidated balance sheet of such Person and its consolidated Subsidiaries (for purposes of this clause (c) , any transaction structured to provide tax deductibility as interest expense of any dividend, coupon or other periodic payment shall be deemed to be the functional equivalent of a borrowing).

 

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1.17   Property ” means any right or interest in or to property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible.

 

1.18   Security ” means any security or collateral held by or for the Buyer Agent, for the benefit of the Buyers, for the Repurchase Transactions or the Guarantied Obligations, whether real or personal property, including any mortgage, deed of trust, financing statement, security agreement, and other security document or instrument of any kind securing the Repurchase Transactions in whole or in part.

 

1.19   Seller ” means: (a) Seller as defined above, acting on its own behalf; (b) any estate created by the commencement of an Insolvency Proceeding affecting Seller; (c) any trustee, liquidator, sequestrator, or receiver of Seller or Seller’s property; and (d) any similar person duly appointed pursuant to any law governing any Insolvency Proceeding of Seller.

 

1.20   Subsidiary ” means, as to any Person, a corporation, partnership, limited liability company or other entity of which shares of stock or other ownership interests having ordinary voting power (other than stock or such other ownership interests having such power only by reason of a contingency) to elect a majority of the board of directors or other managers of such corporation, partnership, limited liability company or other entity are at the time owned, or the management of which is otherwise controlled, directly or indirectly through one or more intermediaries, or both, by such Person

 

1.21   Tangible Net Worth ” means, as of a particular date, (i) all amounts that would be included under stockholder’s equity on a balance sheet of Guarantor and its consolidated Subsidiaries at such date, determined in accordance with GAAP, less (ii) the sum of (A) amounts owing to Guarantor and its consolidated Subsidiaries from Affiliates and (B) Intangible Assets of Guarantor and its consolidated Subsidiaries.

 

1.22   Tangible Net Worth Ratio ” shall have the meaning provided in Section 5.2 of this Guaranty.

 

1.23   Total Recourse Indebtedness ” means, for any period, the aggregate Indebtedness (excepting any Non-Recourse Indebtedness) of Guarantor and its consolidated Subsidiaries during such period.

 

1.24   Unfunded Margin Amount ” means, in respect of any Eligible Asset on any date of determination, the positive difference, if any, between (a) the Market Value in respect of such Eligible Asset and (b) the outstanding Repurchase Price for such Eligible Asset.

 

2.   ABSO LUTE GUARANTY OF ALL GUARANTIED OBLIGATIONS . Guarantor unconditionally and irrevocably guarantees Seller’s prompt and complete payment, observance, fulfillment, and performance of all Guarantied Obligations. Guarantor shall be personally liable for, and personally obligated to pay and perform, all Guarantied Obligations. All assets and property of Guarantor shall be subject to recourse if Guarantor fails to pay and perform any Guarantied Obligation(s) when and as required to be paid and performed pursuant to the Transaction Documents.

 

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3.   NATURE AND SCOPE OF LIABILITY . Guarantor’s liability under this Guaranty is primary and not secondary. Guarantor’s liability under this Guaranty shall be in the full amount of all Guarantied Obligations, including any interest, default interest, costs and fees payable by Seller under the Transaction Documents, including any of the foregoing that would have accrued under the Transaction Documents but for any Insolvency Proceeding.

 

4.   CHANGES IN TRANSACTION DOCUMENTS . Without notice to, or consent by, Guarantor, and in the Buyer Agent’s sole and absolute discretion and without prejudice to the Buyer Agent or in any way limiting or reducing Guarantor’s liability under this Guaranty, but subject to the terms of the Repurchase Agreement, the Buyer Agent, on behalf of the Buyers, may: (a) grant extensions of time, renewals or other indulgences or modifications to Seller or any other party under any of the Transaction Document(s), (b) change, amend, or modify any Transaction Document(s), (c) authorize the sale, exchange, release or


 
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