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:
(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.
“ 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
(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.
(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.
(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