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.
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
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
(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).
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.
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