Exhibit 10.1b
PARENT GUARANTY
This PARENT GUARANTY, dated as of March 17, 2006 (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, pursuant to the Credit Agreement, dated as
of March 17, 2006 (as 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, the Lender has agreed to make loans to AHR Capital and
each other Borrower on the terms and subject to the conditions set
forth therein, such loans to be evidenced by the Notes issued by
each Borrower thereunder;
WHEREAS, the Guarantor owns directly all of the
issued and outstanding Capital Stock of AHR Capital; and
WHEREAS, it is a condition precedent to the
obligation of the Lender to make Loans to AHR Capital and each
other Borrower under the Credit Agreement 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 Credit Agreement and to
induce the Lender to make loans to AHR Capital and each other
Borrower under the Credit Agreement, 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 Anthracite and its consolidated Subsidiaries for
such period without giving effect to depreciation and amortization
uniquely significant to real estate, gains or losses which are
classified as “extraordinary” in accordance with GAAP,
capital gains or losses on sales of real estate, capital gains or
losses with respect to the disposition
of investments in marketable securities and any
provision/benefit for income taxes for such period, plus the
allocable portion, based on the Anthracite’s ownership
interest, of adjusted net income of unconsolidated joint ventures,
all determined on a consistent basis.
“ Debt Service
Coverage Ratio ” or “
DSCR ” shall
mean, for any period, the ratio of Adjusted Net Income plus
Interest Expense on recourse indebtedness of Anthracite and its
consolidated Subsidiaries for such period outstanding to Interest
Expense on recourse indebtedness of Anthracite and its consolidated
Subsidiaries for such period.
“ 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).
“ Interest
Expense ” shall mean for any
period, total interest expense, both expensed and capitalized, of
Anthracite and its consolidated Subsidiaries for such period with
respect to all outstanding Indebtedness of Anthracite 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 basis in accordance with GAAP, net of interest income
of Anthracite and its Subsidiaries for such period (determined on a
consolidated basis in accordance with GAAP).
“ 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.
“ 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 ”);
-2-
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 Guarantor in respect of the Obligations, remain
liable for the Guaranteed Obligations up to the maximum liability
of the Guarantor hereunder until the Obligations are paid in full
and the obligation of the Lender to make Loans under the Credit
Agreement shall be terminated.
(e)
The Guarantor agrees that whenever, at any time, or
from time to time, it shall make any payment to the Lender on
account of its liability hereunder, it will notify the Lender in
writing that such payment is made under this Guaranty for such
purpose .
3.
Deferral of Subrogation . Notwithstanding any payment or payments made by the Guarantor
hereunder or any set-off or application of funds of the Guarantor
by the Lender, the Guarantor shall not be entitled to be subrogated
to any of the rights of the Lender against any Borrower or any
other guarantor or any collateral security or guarantee or right of
offset held by the Lender for the payment of the Obligations, nor
shall the Guarantor seek or be entitled to seek any contribution or
reimbursement from any Borrower or any other guarantor in respect
of payments made by the Guarantor hereunder, until all amounts
owing to the Lender by each Borrower on account of the Obligations
are paid in full and the obligation of the Lender to make Loans
under the Credit Agreement shall be terminated. If any amount shall
be paid to the Guarantor on account of such subrogation rights at
any time when all of the Obligations shall not have been paid in
full and the obligation of the Lender to make Loans under the
Credit Agreement shall be terminated, such amount shall be held by
the Guarantor in trust for the Lender, segregated from other funds
of the Guarantor, and shall, forthwith upon receipt by the
Guarantor, be turned over to the Lender, to be applied against the
Obligations, whether matured or unmatured, in such order as the
Lender may determine.
4.
Amendments, etc. with respect to the Obligations;
Waiver of Rights . The Guarantor shall
remain obligated hereunder notwithstanding that, without any
reservation of rights against the Guarantor and without notice to
or further assent by the Guarantor, any demand for payment of any
of the Obligations made by the Lender may be rescinded by such
party and any of the Obli
