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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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