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GUARANTY

Guarantee Agreement

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

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

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Title: GUARANTY
Governing Law: New York     Date: 7/25/2007
Law Firm: Latham Watkins    

GUARANTY, Parties: anthracite capital bofa funding llc , anthracite capital  inc , banc of america mortgage , bank of america  n.a.  mail code , blackrock financial management  inc , portfolio management
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Exhibit 10.4

 

Execution Copy

GUARANTY

This 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, the Buyers are considering entering into one or more

repurchase agreement transactions (the "Repurchase Transactions") up to a

maximum aggregate amount of Two Hundred Million Dollars ($200,000,000.00), with

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").

WHEREAS, in connection with the Repurchase Transactions, Seller, the

Buyer Agent and Buyers are entering into the following documents (collectively,

together with (x) this Guaranty, (y) any other documents executed by Seller or

Guarantor evidencing, securing or otherwise relating to the Repurchase

Transactions or this Guaranty and (z) any modifications, extensions, renewals,

restatements or replacements of any of the foregoing, the "Repurchase

Documents"): 1. 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 from time to time, the "Repurchase

Agreement"); and 2. that certain Custodial Agreement among the Buyer Agent,

Seller and Custodian dated as of July 20, 2007, as amended, modified and in

effect from time to time.

WHEREAS, the Buyer Agent has examined, among other things, both

Seller's and Guarantor's creditworthiness and ability to pay and perform

Seller's obligations under the Repurchase Documents.

WHEREAS, the Buyer Agent and the Buyers have requested, as a condition

of entering into the Repurchase Agreement, that the obligations of Seller be

guarantied by Guarantor.

WHEREAS, Guarantor is the direct owner of 100% of the membership

interests of Seller.

WHEREAS, Guarantor expects to benefit if the Buyer Agent and the Buyers

enters into the Repurchase Agreement with Seller, and desires that the Buyer

Agent and the Buyers enter into the Repurchase Agreement with Seller.

 

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WHEREAS, the Buyer Agent and the Buyers would not enter into, and would

not be obligated to enter into, 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 enter into the

Repurchase Agreement.

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 Repurchase Agreement and accept the

Repurchase 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.

 

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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" means cash on deposit in the Cash Management Account or in

any other account maintained by the Seller with any depository institution.

1.4 "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.

1.5 "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 Repurchase Documents at the times and

according to the terms required by the Repurchase 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 Repurchase Documents, whether monetary or nonmonetary, when and

as required by the Repurchase Documents, including all obligations of Seller

relating to the Repurchase Transactions and the Security under the Repurchase

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

 

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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 "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.

1.13 "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.

1.14 "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

 

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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).

1.15 "Property" means any right or interest in or to property of any

kind whatsoever, whether real, personal or mixed and whether tangible or

intangible.

1.16 "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.

1.17 "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.

1.18 "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

1.19 "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.

1.20 "Tangible Net Worth Ratio" shall have the meaning provided in

Section 5.2 of this Guaranty.

1.21 "Total Recourse Indebtedness" means, for any period, the aggregate

Indebtedness (excepting any Non-Recourse Indebtedness) of Guarantor and its

consolidated Subsidiaries during such period.

1.22 "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. ABSOLUTE 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.

 

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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 Repurchase 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

Repurchase Documents, including any of the foregoing that would have accrued

under the Repurchase Documents but for any Insolvency Proceeding.

4. CHANGES IN REPURCHASE 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 Repurchase Document(s), (b) change, amend, or modify any

Repurchase Document(s), (c) authorize the sale, exchange, release or

subordination of any Security, (d) accept or reject additional Security in

accordance with the terms of the Repurchase Agreement, (e) discharge or release

any party or parties liable under the Repurchase Documents, (f) foreclose or

otherwise realize on any Security, or attempt to foreclose or otherwise realize

on any Security, whether such attempt is successful or unsuccessful, in

accordance with the terms of the Repurchase Agreement, (g) accept or make

compositions or other arrangements or file or refrain from filing a claim in any

Insolvency Proceeding, (h) make loans to Seller in such amount(s) and at such

time(s) as the Buyer Agent may determine, (i) credit payments in such manner and

order of priority as the Buyer Agent may determine in its discretion, provided

that such credits shall be consistent with the requirements of the Repurchase

Agreement and (j) otherwise deal with Seller and any other party related to the

Repurchase Transactions or any Security as the Buyer Agent may determine in its

sole and absolute discretion. Without limiting the generality of the foregoing,

Guarantor's liability under this Guaranty shall continue even if the Buyer Agent

alters any obligations under the Repurchase Documents in any respect or any

Buyer's, the Buyer Agent's or Guarantor's remedies or rights against Seller are

in any way impaired or suspended without Guarantor's consent. If the Buyer Agent

performs any of the actions described in this paragraph, then Guarantor's

liability shall continue in full force and effect even if the Buyer Agent's

actions impair, diminish or eliminate Guarantor's subrogation, contribution, or

reimbursement rights (if any) against Seller.

5.


 
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