Back to top

AMENDED AND RESTATED PARENT GUARANTY

Guarantee Agreement

AMENDED AND RESTATED PARENT GUARANTY | Document Parties: ANTHRACITE CAPITAL INC | AHR Capital BofA Limited You are currently viewing:
This Guarantee Agreement involves

ANTHRACITE CAPITAL INC | AHR Capital BofA Limited

. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here.
Title: AMENDED AND RESTATED PARENT GUARANTY
Governing Law: New York     Date: 8/11/2008
Industry: Real Estate Operations     Sector: Services

AMENDED AND RESTATED PARENT GUARANTY, Parties: anthracite capital inc , ahr capital bofa limited
50 of the Top 250 law firms use our Products every day

Exhibit 10.4

 

AMENDED AND RESTATED

PARENT GUARANTY

 

This AMENDED AND RESTATED PARENT GUARANTY, dated as of August 7, 2008 (as amended, restated, supplemented or otherwise modified from time to time, this “ Guaranty ”), is executed by ANTHRACITE CAPITAL INC. (“ Anthracite ”) as guarantor (the “ Guarantor ”), in favor of BANK OF AMERICA, N.A., as the lender (the “ Lender ”) under the Credit Agreement (as defined below).

 

RECITALS

 

WHEREAS, Anthracite is party to that certain Credit Agreement, dated as of March 17, 2006 (as amended, supplemented or otherwise modified prior to the date hereof, the “ Existing Credit Agreement ”; as amended by the Amendment, Agreement and Waiver, dated as of the date hereof (the “ Amendment ”) and as further amended, supplemented or otherwise modified from time to time, the “ Credit Agreement ”) among AHR Capital BofA Limited, a limited company organized under the laws of Ireland (“ AHR Capital ”) as a borrower (a “ Borrower ”), Anthracite as the borrower agent (the “ Borrower Agent ”), the borrowers from time to time party thereto (each a “ Borrower ” and together with AHR Capital, collectively, the “ Borrowers ”)) and the Lender;

 

WHEREAS, in connection with the Existing Credit Agreement, the Guarantor executed and delivered that certain Parent Guaranty, dated as of March 17, 2006 (as amended, restated, supplemented or otherwise modified prior to the date hereof, the “ Existing Guaranty ”);

 

WHEREAS, the Borrowers, the Borrower Agent and the Lender have amended the Existing Credit Agreement pursuant to the Amendment;

 

WHEREAS, the Guarantor owns directly all of the issued and outstanding Capital Stock of AHR Capital; and

 

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 Lender;

 

NOW, THEREFORE, in consideration of the premises and to induce the Lender to enter into the Amendment, the Guarantor hereby agrees with the Lender, as follows:

 

1.    Defined Terms .

 

(a)    Unless otherwise defined in Section 1(d) below, or elsewhere in this Guaranty, capitalized terms used in this Guaranty shall have the meanings ascribed to such terms in the Credit Agreement.

 

(b)    The words “hereof,” “herein” and “hereunder” and words of similar import when used in this Guaranty shall refer to this Guaranty as a whole and not to any particular provision of this Guaranty, and section and paragraph references are to this Guaranty unless otherwise specified.

 

(c)    The meanings given to terms defined herein shall be equally applicable to both the singular and plural forms of such terms.

 

(d)    As used herein, the following terms shall have the following meanings:

 


 

Adjusted Net Income ” shall mean for any period, the Net Income of the Guarantor and its Subsidiaries 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.

 

Cash Interest Expense ” shall mean for any period, total interest expense, both expensed and capitalized, of Guarantor and its Subsidiaries for such period with respect to all outstanding recourse Indebtedness of Guarantor and its Subsidiaries (including, without limitation, all commissions, discounts and other fees and charges owed with respect to letter of credit and bankers’ acceptance financing and net costs under interest rate protection agreements), determined on a consolidated cash basis, for such period (determined on a consolidated cash basis), and net of any interest accretions, whether in favor or against, with respect to debt.

 

Committed Facility ” shall mean a credit facility under which Guarantor is a borrower and a party acceptable to the Lender 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 Lender); (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.

 

-2-


 

Debt Service Coverage Ratio ” or “ DSCR ” shall mean the ratio of Adjusted Net Income to Cash Interest Expense on recourse Indebtedness outstanding, it being understood that such determination shall be made on a cash basis.

 

Intangible Assets ” shall mean 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).

 

Mark-to-Market Indebtedness ” shall mean the portion of Total Indebtedness of Anthracite (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.

 

Marketable Securities ” means any of the following:

 

(a)    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

 

(b)    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

 

(c)    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

 

(d)    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

 

(e)    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

 

(f)    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

 

-3-


 

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

 

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

 

Net Income ” shall mean for any period and for Anthracite and its consolidated Subsidiaries, the consolidated net income (or loss) of Anthracite 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.

 

Non-Recourse Indebtedness ” shall mean, 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 of such Person encumbered by a Lien securing such Indebtedness.

 

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

 

Tangible Net Worth Ratio ” shall have the meaning provided in Section 11(b) of this Guaranty.

 

Total Indebtedness ” shall mean for any period, the aggregate Indebtedness (excepting any Non-Recourse Indebtedness) of Anthracite and its consolidated Subsidiaries during such period.

 

2.    Guaranty .

 

(a)    The Guarantor, as guarantor of payment and performance and not merely as surety or guarantor of collection, hereby, unconditionally and irrevocably, guarantees to the Lender and its successors and permitted assigns, the prompt and complete payment and performance by each Borrower when due (whether at the stated maturity, by acceleration or otherwise) of all Obligations of such Borrower under the Credit Agreement and the other Loan Documents (the “ Guaranteed Obligations ”); provided , that the Guaranteed Obligations shall not at any time be reduced by operation of Section 10.18 of the Credit Agreement.

 

(b)    The Guarantor further agrees to pay any and all expenses (including, without limitation, all fees and disbursements of external counsel) which may be paid or incurred by the Lender in enforcing any rights with respect to, or collecting, any or all of the Guaranteed Obligations and/or enforcing any rights with respect to, or collecting against, the Guarantor under this Guaranty, the Parent Pledge Agreement or the Parent Deed of Charge. This Guaranty shall remain in full force and effect until the Obligations are paid in full and the obligation of the Lender to make Loans under the Credit Agreement shall be terminated, notwithstanding that from time to time prior thereto each Borrower may be free from any Obligations.

 

-4-


 

(c)    The Guarantor agrees that the Guaranteed Obligations may at any time and from time to time exceed the amount of the liability of such Guarantor hereunder without impairing this Guaranty or affecting the rights and remedies of the Lender hereunder.

 

(d)    No payment or payments made by any Borrower, the Guarantor, any other guarantor or any other Person or received or collected by the Lender from any Borrower, the Guarantor, any other guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the Guarantor hereunder which shall, notwithstanding any such payment or payments other than payments made by the Guarantor in respect of the Obligations or payments received or collected from the Guaranto


 
SITE SEARCH

AGREEMENTS / CONTRACTS

Document Title:

Entire Document: (optional)

Governing Law:(optional)


Try our advanced search >>
 

CLAUSES

Search Contract Clauses >>

Browse Contract Clause Library>>

Get Email Updates
Email:
This is only a partial view of this document. We have millions of legal documents and clauses drafted by top law firms. learn more search for free browse for free learn more