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