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Exhibit
10.2
AMENDED AND RESTATED PARENT GUARANTY AND INDEMNITY
This AMENDED AND RESTATED PARENT GUARANTY AND INDEMNITY (this
“ Guaranty
”) is made as of February 15, 2008, by ANTHRACITE CAPITAL,
INC., a Maryland corporation (“ Guarantor
”) in favor of MORGAN STANLEY MORTGAGE SERVICING LTD.
(“ Security
Trustee ”), as security trustee under the Loan
Agreement (hereinafter defined), and MORGAN STANLEY
PRINCIPAL FUNDING INC., a Delaware corporation (“
Agent
”; Agent and Security Trustee being sometimes referred to
each as a “ Finance Party
” and collectively the “ Finance
Parties ”), as agent under the Loan
Agreement.
W I T N E S S E T H:
WHEREAS, Security Trustee, Morgan Stanley Bank, a Utah corporation
(“ Original Agent
”), and AHR Capital MS Limited, a company incorporated in the
Republic of Ireland with Company Number 411989 (“
Borrower
”), and the other parties thereto are party to that certain
Multicurrency Revolving Facility Agreement dated as of February 17,
2006 (the “ Original Loan
Agreement ”).
WHEREAS, Guarantor directly owns one hundred percent (100%) of the
legal and beneficial interest in Borrower.
WHEREAS, pursuant to that certain Parent Guaranty and Indemnity
dated as of February 17, 2006 (the “ Original
Guaranty ”), made by Guarantor in favor of Security
Trustee and Original Agent, Guarantor, among other things,
guaranteed the obligations of Borrower under the Original Loan
Agreement.
WHEREAS, pursuant to that certain Amended and Restated
Multicurrency Revolving Facility Agreement dated as of July 20,
2007, among Borrower, Security Trustee, Original Agent and the
other parties thereto (the “ Existing Loan
Agreement ”), the Original Loan Agreement was amended
and restated to, among other things, increase the maximum credit
thereunder to $300,000,000.
WHEREAS, pursuant to the Original Guaranty, Guarantor guaranteed
the obligations under the Existing Loan Agreement.
WHEREAS, on the date hereof, Original Agent has resigned as agent
under the Existing Loan Agreement and appointed Agent in its
place.
WHEREAS, pursuant to that certain Second Amended and Restated
Multicurrency Revolving Facility Agreement dated as of the date
hereof, among Borrower, Security Trustee, Agent and the other
parties thereto (as said agreement may be modified, amended or
restated from time to time, the “ Loan Agreement
”), the Existing Loan Agreement was amended and restated to,
among other things, extend the term thereof and amend the pricing
thereunder.
WHEREAS, it is a condition to the effectiveness of the Loan
Agreement that Guarantor execute and deliver this Guaranty for the
benefit of the Finance Parties and, as such, Guarantor desires to
amend and restate the Original Guaranty in its entirety as set
forth herein and Security Trustee and Agent desire to accept this
Guaranty in lieu of the Original Guaranty.
NOW,
THEREFORE, in consideration of the premises and the mutual
promises and covenants contained in this Guaranty, and for other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereby agree that from
and after the date hereof the terms and conditions of the Original
Guaranty are hereby superseded by the following terms and
conditions:
Section 1.
Capitalized
Terms . All capitalized terms used herein and not
otherwise defined shall have the respective meanings ascribed to
such terms in the Loan Agreement. As used herein:
“ 1934 Act
” shall mean the Securities and Exchange Act of 1934, as
amended.
“ Affiliate
” shall mean with respect to any Person, any
“affiliate” of such Person, as such term is defined in
the United States Bankruptcy Code of 1978, as amended from time to
time.
“ Capital Lease
Obligations ” shall mean, 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 Agreement, the amount of such
obligations shall be the capitalized amount thereof, determined in
accordance with GAAP.
“ Cash Income
” shall mean, for any period, the sum of Net Income of the
Guarantor and its consolidated Subsidiaries and (a) Cash Interest
Expense and (b) depreciation and amortization; less (i) the net
gain (or loss) on securities, (ii) the net gain (or loss) on real
estate held for sale, (iii) earnings (or loss) from equity
investments and unconsolidated joint ventures determined in
accordance with GAAP, plus cash distributions from equity
investments, (iv) income (or expense) attributable to the
ineffectiveness of hedging transactions, (v) any benefit (or
provision) for income taxes for such period, (vi) interest
amortization (or accretion), (vii) incentive fees received (or
paid) in the form of the issuance of the Guarantor's common stock,
and (viii) gains (or losses) attributable to the impairment of
assets under EITF 99-20.
“ 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 the Total 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 cash basis for such period, and net of
interest accretions, whether in favor or against, with respect to
debt.
“ Code ”
shall mean the Internal Revenue Code of 1986, as amended from time
to time.
“ Debt Service Coverage
Ratio ” shall mean, for the period of time
for which calculation is being made, the ratio of cash income
before interest expense to cash interest expense.
“ ERISA ”
shall mean the Employee Retirement Income Security Act of 1974, as
amended from time to time.
“ GAAP ”
shall mean generally accepted accounting principles as in effect
from time to time in the United States.
“ Guarantee
” shall mean, as to any Person, any obligation of such Person
directly or indirectly guaranteeing any Indebtedness of any other
Person or in any manner providing for the payment of any
Indebtedness of any other Person or otherwise protecting the holder
of such Indebtedness against loss (whether by virtue of partnership
arrangements, by agreement to keep-well, to purchase assets, goods,
securities or services, or to take-or-pay or otherwise); provided
that the term “Guarantee” shall not include (i)
endorsements for collection or deposit in the ordinary course of
business, or (ii) obligations to make servicing advances for
delinquent taxes and insurance or other obligations in respect of a
Mortgaged Property, to the extent required by Buyer. The
amount of any Guarantee of a Person shall be deemed to be an amount
equal to the stated or determinable amount of the primary
obligation in respect of which such Guarantee is made or, if not
stated or determinable, the maximum reasonably anticipated
liability in respect thereof as determined by such Person in good
faith. The terms “ Guarantee
” and “ Guaranteed
” used as verbs shall have correlative meanings.
“ Indebtedness
” shall mean, for any Person: (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
90 days of 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 Guaranteed by such Person; (h) all obligations of such
Person incurred in connection with the acquisition or carrying of
fixed assets by such Person; and (i) Indebtedness of general
partnerships of which such Person is a general
partner.
“ Intangible
Assets ” shall mean the excess of the cost over book
value of assets acquired, patents, trademarks, trade names,
copyrights, franchises and deferred charges (excluding the value of
any residual securities and the value of any owned or purchased
mortgage servicing rights).
“ Lien ”
shall mean any mortgage, lien, pledge, charge, security interest or
similar encumbrance.
“ Liquid Assets
” shall mean cash, United States Treasury Bills, securities
issues by an agency of, and guaranteed by, the United States of
America, in each case, that is unrestricted and not subject to
Liens.
“ Loan Documents
” shall mean the Original Loan Agreement, the Existing Loan
Agreement, the Loan Agreement and all documents and agreements
executed by Borrower at any time in connection with any of the
foregoing, including without limitation, the Finance Documents (as
defined in the Loan Agreement).
“ Mark-to-Market
Indebtedness ” means the portion of the Total
Indebtedness of Guarantor (which may be all of such Indebtedness)
where the terms thereunder permit the holder thereof to make a
margin call, accelerate all or a 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.
“ Net Income
” shall mean, for any period, the net income of the
Guarantor and its consolidated Subsidiaries for such period as
determined on a consolidated basis in accordance with
GAAP.
“ Person ”
shall mean any individual, corporation, company, voluntary
association, partnership, joint venture, limited liability company,
trust, unincorporated association or government (or any agency,
instrumentality or political subdivision thereof).
“ Property
” shall mean any right or interest in or to property of any
kind whatsoever, whether real, personal or mixed and whether
tangible or intangible.
“ Subsidiary
” shall mean, with respect to any Person, any corporation,
partnership or other entity of which at least a majority of the
securities or other ownership interests having by the terms thereof
ordinary voting power to elect a majority of the board of directors
or other persons performing similar functions of such corporation,
partnership or other entity (irrespective of whether or not at the
time securities or other ownership interests of any other class or
classes of such corporation, partnership or other entity shall have
or might have voting power by reason of the happening of any
contingency) is at
the time directly or indirectly owned or controlled by such Person
or one or more Subsidiaries of such Person or by such Person and
one or more Subsidiaries of such Person.
“ Tangible Net
Worth ” shall mean, as of a particular
date:
(i) all
amounts which would be included under stockholder's equity on a
consolidated balance sheet of Guarantor and its consolidated
Subsidiaries at such date, determined in accordance with GAAP,
less
(ii) amounts
owing to Guarantor or any consolidated Subsidiary from Affiliates
and (ii) Intangible Assets on the consolidated balance sheet of
Guarantor.
“ Total
Indebtedness ” shall mean, for any period, the
aggregate Indebtedness of Guarantor and its consolidated
Subsidiaries (excluding non-recourse Indebtedness) during such
period.
Section 2.
Guaranty
.
(a) Guarantor
hereby unconditionally and irrevocably guarantees to the Finance
Parties the due and punctual payment when due, whether at the
stated due date, by acceleration or otherwise, of any and all
monetary obligations, indemnities, liabilities, indebtedness and
other amounts of every kind arising out of the Loan Documents, all
amounts in respect to indemnities provided for in the Loan
Documents, and all damages provided for in the Loan Documents, in
respect of a failure or refusal by Borrower to make any such
payment, howsoever created, arising or evidenced, voluntary or
involuntary, whether direct or indirect, absolute or contingent,
now or hereafter existing or owing to Finance Parties (all the
foregoing obligations and undertakings (irrespective of the
application of the limited recourse language in Clause 35 of the
Loan Agreement or clauses of similar import in the other Finance
Documents) collectively referred to hereinafter as the “
Guaranteed
Obligations ”).
(b) This
Guaranty is an absolute and unconditional guaranty of payment when
due under the Loan Documents and not of collection of any
indebtedness contained in or arising under the Loan
Documents. This Guaranty is in no way conditioned upon
any attempt to collect from Borrower or upon any other event or
contingency, and shall be binding upon and enforceable against
Guarantor without regard to the validity or enforceability of the
Loan Documents, or of any term thereof. If for any
reason Borrower shall fail or be unable duly and punctually to pay
any such amount when due under the Loan Documents, Guarantor will
forthwith pay, if not already paid by Borrower, the same
immediately upon written demand.
(c) In
case any of the Loan Documents shall be terminated as a result of
the rejection thereof by any trustee, receiver, examiner,
liquidator or liquidating agent of Borrower or any of its
properties in any bankruptcy, insolvency, reorganization,
arrangement, composition, readjustment, liquidation, dissolution,
examinership, winding-up or similar proceeding, Guarantor’s
obligations hereunder shall continue to the same extent as if such
agreement had not been so rejected. Guarantor agrees
that this Guaranty shall continue to be effective or shall be,
reinstated, as the case may be, if at any time payment to any
Finance Party of the Guaranteed Obligations or any part thereof is
rescinded or must otherwise be returned by such Finance Party upon
the insolvency, bankruptcy, examinership, liquidation, winding-up
or reorganization of Borrower, or otherwise, as though such payment
to such Finance Party had not been made.
(d) Without
duplication of the Guaranteed Obligations, Guarantor shall pay on
demand all reasonable costs, expenses and damages incurred
(including, without limitation, attorneys’ fees and
disbursements) in connection with the enforcement of the
obligations of Guarantor under this Guaranty.
Section 3.
Obligations
Unconditional . Guarantor hereby agrees that its
obligations under this Guaranty shall be continuing and unlimited,
shall not be subject to any non-compulsory counterclaim, set-off,
deduction or defense (other than payment) based upon any claim
Guarantor may have against the Finance Parties or Borrower or any
other Person, and shall remain in full force and effect without
regard to, and shall not be released, discharged or in any way
affected by any circumstance or condition (whether or not Guarantor
shall have any knowledge or notice thereof) whatsoever that might
constitute a legal or equitable discharge or defense, and shall be
unconditional, irrespective of:
(i) the
validity, enforceability, avoidance, novation or subordination of
any of the Guaranteed Obligations, the Loan Documents, this
Guaranty, or any other document relating thereto;
(ii) the
absence of any attempt by, or on behalf of, any Finance Party to
collect, or to take any other action to enforce, all or any part of
the Guaranteed Obligations, whether from or against Borrower,
Guarantor, or any other Person or entity;
(iii) the
election of any remedy by, or on behalf of, any Finance Party with
respect to all or any part of the Guaranteed
Obligations;
(iv) the
waiver, rescission, compromise, acceleration, consent, extension,
forbearance or granting of any indulgence by, or on behalf of, any
Finance Party with respect to, or the amendment or modification of,
or any release of any party from, any of the terms and provisions
of, any provision of the Loan Documents or any related
document;
(v) the
failure of any Finance Party to take any steps to perfect and
maintain its security interest in, or to preserve its rights to,
any security or collateral, if any, for the Guaranteed
Obligations;
(vi) the
election by, or on behalf of, any Finance Party, in any proceeding
instituted under Chapter 11 of Title 11 of the United
States Code (11 U.S.C. 101 et seq.) (the “ Bankruptcy
Code ”), of the application of Section 1111(b)(2)
of the Bankruptcy Code;
(vii) the
disallowance, under Section 502 of the Bankruptcy Code or any other
applicable law, of all or any portion of the claims of any Finance
Party for repayment of all or any part of the Guaranteed
Obligations or any expenses associated therewith;
(viii) the failure of any
Finance Party to assert any claim or demand or to enforce any right
or remedy against Borrower or any other Person under the provisions
of the Loan Documents or any related document or other agreement or
otherwise;
(ix) any
change in respect of Borrower or Guarantor, including, without
limitation, as a result of any sale of assets, merger,
consolidation, dissolution, liquidation, recapitalization, or other
change of legal form or status, whether or not permitted under the
Loan Documents;
(x) the
release, exchange, waiver or foreclosure of any security held by
any Finance Party for any of the Guaranteed Obligations or the
invalidity or nonperfection of any security interest securing the
Guaranteed Obligations or this Guaranty, or any other defect of any
kind pertaining to the Guaranteed Obligations or any guaranty or
collateral security in respect thereof;
(xi) the
release or substitution of Borrower or Guarantor;
(xii) any other
circumstance that might otherwise, but for this specific agreement
of Guarantor to the contrary, result in a discharge of or the
exoneration of Guarantor hereunder, at law or in equity, it being
the intent of the parties hereto that the obligations of Guarantor
hereunder shall be absolute and unconditional under any and all
circumstances; or
(xiii) any reduction
occurring in, or other arrangement being made relating to the
Guaranteed Obligations as a result of any compromise, scheme of
arrangement or composition, made pursuant to any of the provisions
of the Companies (Amendment) Act 1990, as amended, of the Republic
of Ireland or any analogous provisions or made pursuant to any
proceedings or actions whatsoever and whether or not following the
appointment of an administrator, administrative receiver, trustee,
liquidator, receiver or examiner or any similar officer or any
analogous event occurring under the laws of any jurisdiction
relevant to Borrower or over all or a substantial part of the
assets of Borrower, and Guarantor hereby agrees with and
acknowledges to the Finance Parties that the amount recoverable by
the Finance Parties from Borrower and Guarantor hereunder will be
and will continue to be the full amount which would have been
recoverable by the Finance Parties from Borrower in respect of the
Guaranteed Obligations had no such compromise, scheme of
arrangement or composition or event as aforesaid been entered
into.
Section 4.
Enforcement
. The Finance Parties may proceed directly against
Guarantor to collect and recover the full amount (or any portion)
of the Guaranteed Obligations, without first proceeding against
Borrower or any other Person or entity, or against any security or
collateral for the Guaranteed Obligations.
Section 5.
Waivers
.
(a) Guarantor
hereby waives diligence, presentment, demand of payment, filing of
claims with a court in the event of receivership, liquidation,
dissolution, examinership, winding-up or similar proceedings or
bankruptcy of Borrower or Guarantor, protest or notice (except any
applicable notices required to be given to Borrower under the Loan
Documents) with respect to the Guaranteed Obligations, all setoffs
and counterclaims and all presentments, demands for performance,
notices of nonperformance (except any applicable notices required
to be given under the Loan Documents), protests, notices of
protest, notices of dishonor and notices of acceptance of this
Guaranty and all other demands (except any applicable demands
required to be given under the Loan Documents) whatsoever (and
shall not require that the same be made on Borrower or Guarantor as
a condition precedent to the obligations of Guarantor hereunder,
except as required by the Loan Documents), and covenants that this
Guaranty will not be discharged, except by complete payment (in
cash) of the Guaranteed Obligations and any other obligations
contained herein and the termination of the Loan
Documents. Guarantor further waives all notices of the
existence, creation or incurring of new or additional indebtedness,
arising either from loans extended to Borrower, any other Person
under the Loan Documents, Guarantor or otherwise under any related
document.
(b) The
Finance Parties are hereby authorized, without notice or demand and
without affecting the liability of Guarantor hereunder, from time
to time, (i) to renew, extend, accelerate or otherwise change
the time for payment of, or other terms relating to, all or any
part of the Guaranteed Obligations, or to otherwise modify, amend
or change the terms of the Loan Documents to which any Finance
Party is a party or any other related document; (ii) to accept
partial payments on all or any part of the Guaranteed Obligations;
(iii) to take and hold security or collateral for the payment
of all or any part of the Guaranteed Obligations, this Guaranty, or
any other guaranties of all or any part of the Guaranteed
Obligations or other liabilities of Guarantor or Borrower;
(iv) to exchange, enforce, waive and release any such security
or collateral; (v) to apply such security or collateral and
direct the order or manner of sale thereof as in its discretion it
may determine; and (vi) to settle, release, exchange, enforce,
waive, compromise, collect or otherwise liquidate all or any part
of the Guaranteed Obligations, and any security or collateral for
the Guaranteed Obligations. Any of the foregoing may be
done in any manner, without affecting or impairing the obligations
of Guarantor hereunder.
Section 6.
Setoff
. At any time after all or any part of the Guaranteed
Obligations have become due and payable, any Finance Party may,
without notice to Guarantor and regardless of the acceptance of any
security or coll
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