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SECOND AMENDED AND RESTATED PARENT GUARANTY

Guarantee Agreement

SECOND AMENDED AND RESTATED PARENT GUARANTY | Document Parties: ANTHRACITE CAPITAL INC | Bank of America, N.A. You are currently viewing:
This Guarantee Agreement involves

ANTHRACITE CAPITAL INC | Bank of America, N.A.

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Title: SECOND AMENDED AND RESTATED PARENT GUARANTY
Governing Law: New York     Date: 5/21/2009
Industry: Real Estate Operations     Sector: Services

SECOND AMENDED AND RESTATED PARENT GUARANTY, Parties: anthracite capital inc , bank of america  n.a.
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Exhibit 10.2

SECOND AMENDED AND RESTATED

PARENT GUARANTY

This SECOND AMENDED AND RESTATED PARENT GUARANTY, dated as of May 15, 2009 (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 the Lender (as defined below).

RECITALS

WHEREAS, Anthracite is party to that certain Credit Agreement, dated as of March 17, 2006 (as amended, restated, supplemented or otherwise modified and in effect prior to the date hereof, the “ Existing Credit Agreement ” and as amended by that certain Omnibus Amendment to the Credit Agreement and the Custodial Application and Payment Agreement, dated as of the date hereof (the “ CA Amendment ”), and as may be further amended, restated, 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, as a borrower (“ AHR Capital ”), Anthracite, as the borrower agent (in such capacity, the “ Borrower Agent ”), the other borrowers from time to time party thereto (each a “ Borrower ” and together with AHR Capital, collectively, the “ Borrowers ”) and Bank of America, N.A., as lender (the “ Lender ”);

WHEREAS, in connection with the Existing Credit Agreement, the Guarantor executed and delivered that certain Amended and Restated Parent Guaranty, dated as of August 7, 2008 (as amended, restated, supplemented or otherwise modified prior to the date hereof, the “ Existing Guaranty ”);

WHEREAS, the Guarantor owns directly all of the issued and outstanding Capital Stock of AHR Capital; and

WHEREAS, it is a requirement to the effectiveness of the CA Amendment that the Existing Guaranty be amended and restated as provided herein;

NOW, THEREFORE, in consideration of the premises and to induce the Lender to amend the Existing Credit Agreement, the Guarantor hereby agrees with the Lender, as follows:

1. Defined Terms .

(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.

AHR Ireland ” shall have the meaning set forth in Section 12(s)(i) hereof.

AHR Ireland Property ” shall have the meaning set forth in Section 12(s)(i) hereof.

AHR Ireland Security Documents ” shall have the meaning set forth in Section 12(s)(i) hereof.

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.

DB Facility Documents ” shall have the meaning set forth in the Intercreditor Agreement.

 

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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.

Facility Documents ” shall have the meaning set forth in the Intercreditor Agreement.

Guaranteed Obligations ” shall have the meaning set forth in Section 2(a) hereof.

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).

MS Facility Documents ” shall have the meaning set forth in the Intercreditor Agreement.

Net Income ” shall mean, for any period, the net income of Guarantor and its consolidated Subsidiaries for such period as determined on a consolidated basis in accordance with GAAP.

Operating Earnings ” shall mean total interest income, in accordance with GAAP, less interest expense, general and administrative expense and management fees, exclusive of any net income and net losses attributable to Carbon Capital I, Inc. or Carbon Capital II, Inc.

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.

Restrictive Covenant ” as defined in Section 12(h) hereof.

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.

Total Indebtedness ” shall mean, for any period, the aggregate Indebtedness of Guarantor and its consolidated Subsidiaries (excluding non-recourse Indebtedness) during such period.

2. Guaranty .

(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, other than the obligation of the Borrowers to pay the Secondary Deferred Restructuring Fee, 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.

 

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(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 Obligations continued, and the Obligations, or the liability of any other party upon or for any part thereof, or any collateral security or guarantee therefor or right of offset with respect thereto, may, from time to time, in whole or in part, be renewed, extended, amended, modified, accelerated, compromised, waived, surrendered or released by the Lender, and the Credit Agreement, the Notes and the other Loan Documents and any other

 

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documents executed and delivered in connection therewith may be amended, modified, supplemented or terminated, in whole or in part, as the Lender may deem advisable from time to time, and any collateral security, guarantee or right of offset at any time held by the Lender for the payment of the Obligations may be sold, exchanged, waived, surrendered or released. The Lender shall have no obligation to protect, secure, perfect or insure any Lien at any time held by it as security for the Obligations or for this Guaranty or any property subject thereto. When making any demand hereunder against the Guarantor, the Lender may, but shall be under no obligation to, make a similar demand on each Borrower or any other guarantor, and any failure by the Lender to make any such demand or to collect any payments from each Borrower or any such other guarantor or any release of any Borrower or such other guarantor shall not relieve the Guarantor of its obligations or liabilities hereunder, and shall not impair or affect the rights and remedies, express or implied, or as a matter of law, of the Lender against the Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedings.

5. Guaranty Absolute and Unconditional . The Guarantor waives any and all notice of the creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by the Lender upon this Guaranty or acceptance of this Guaranty, the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon this Guaranty; and all dealings between each Borrower and the Guarantor, on the one hand, and the Lender, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this Guaranty. The Guarantor waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon each Borrower or the Guarantor with respect to the Obligations. The Guarantor understands and agrees that this Guaranty shall be construed as a continuing, absolute and unconditional guarantee of payment without regard to (a) the validity, regularity or enforceability of the Credit Agreement, any Note or any other Loan Document, any of the Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by the Lender, (b) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by any Borrower against the Lender, or (c) any other circumstance whatsoever (with or without notice to or knowledge of each Borrower or the Guarantor) which constitutes, or might be construed to constitute, an equitable or legal discharge of any Borrower for the Obligations, or of the Guarantor under this Guaranty, in bankruptcy or in any other instance. When pursuing its rights and remedies hereunder against the Guarantor, the Lender may, but shall be under no obligation to, pursue such rights and remedies as it may have against any Borrower or any other Person or against any collateral security or guarantee for the Obligations or any right of offset with respect thereto, and any failure by the Lender to pursue such other rights or remedies or to collect any payments from any Borrower or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of a Borrower or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve the Guarantor of any liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Lender against the Guarantor. This Guaranty shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon the Guarantor and the successors and assigns thereof, and shall inure to be benefit of the Lender, and its successors and permitted assigns, until all the Obligations and the Guaranteed Obligations shall have been satisfied by payment in full and the obligation of the Lender to make Loans under the Credit Agreement shall be terminated, notwithstanding that from time to time during the term of the Credit Agreement each Borrower may be free from any Obligations.

6. Reinstatement . This Guaranty shall continue to be effective, or be reinstated, as the case may be, if at any time payment, or any part thereof, of any of the Obligations is rescinded or must otherwise be restored or returned by the Lender upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of any Borrower or the Guarantor, or upon or as a result of the appointment of a receiver, intervenor or conservator of, or trustee or similar officer for, any Borrower or the Guarantor or any substantial part of its property, or otherwise, all as though such payments had not been made.

 

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7. Not Affected by Bankruptcy . Notwithstanding any modification, discharge or extension of the Obligations or any amendment, modification, stay or cure of the Lender’s rights that may occur in any bankruptcy or reorganization case or proceeding against any Borrower, whether permanent or temporary, and whether or not assented to by the Lender, the Guarantor hereby agrees that it shall be obligated hereunder to pay and perform the Guaranteed Obligations and discharge its other obligations in accordance with the terms of the Guaranteed Obligations and the terms of this Guaranty. The Guarantor understands and acknowledges that, by virtue of this Guaranty, it has specifically assumed any and all risks of a bankruptcy or reorganization case or proceeding with respect to any Borrower. Without in any way limiting the generality of the foregoing, any subsequent modification of the Obligations in any reorganization case concerning such Borrower shall not affect the obligation of the Guarantor to pay and perform the Guaranteed Obligations in accordance with the original terms thereof.

8. Waiver . Notwithstanding anything contained herein to the contrary, in recognition of the risks associated with the Lender’s execution and performance of the CA Amendment, and in consideration of the waivers of margin payments, waivers of financial covenants and other modifications to the other Loan Documents, the Guarantor, for itself and on behalf of all of its Subsidiaries, agrees that in the event that the Guarantor or any Subsidiary becomes subject to any bankruptcy or insolvency proceedings, the Lender shall be entitled to relief from any automatic stay imposed by Section 362 of the Bankruptcy Code or any other applicable law, or otherwise, on or against the exercise of the rights and remedies otherwise available to the Lender hereunder, in any other Loan Document and as otherwise provided by law, and the Guarantor, for itself and on behalf of all of its Subsidiaries, hereby waives the benefit of such automatic stay and consents and agrees to raise no objection to such relief.

9. Payments . The Guarantor hereby guarantees that payments hereunder will be paid to the Lender without set-off or counterclaim in U.S. Dollars at the


 
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