SECOND AMENDED AND RESTATED GUARANTY
Exhibit 10.4
SECOND AMENDED AND RESTATED GUARANTY
This SECOND AMENDED AND RESTATED GUARANTY, dated as of May 15, 2009 (as amended, restated, supplemented or otherwise modified from time to time, this “Guaranty”), is made and entered into by Anthracite Capital, Inc., a Maryland corporation whose address is c/o BlackRock Financial Management, Inc., ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (“Guarantor”), for the benefit of Bank of America, N.A., whose address is ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, Hearst Tower, 20th Floor, Mail Code: NC1-027-20-03, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (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”).
RECITALS
WHEREAS, Anthracite Capital BofA Funding LLC, a Delaware limited liability company whose address is c/o BlackRock Financial Management, Inc., ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (“Seller”) is party to that certain Master Repurchase Agreement among Seller, the Buyer Agent and Buyers dated July 20, 2007, together with all annexes thereto (as amended, restated, supplemented or otherwise modified and in effect prior to the date hereof, the “Existing Repurchase Agreement” and as amended by the Amendment to the Repurchase Agreement, dated as of the date hereof (the “Repo Amendment”), and as may be further amended, restated, supplemented or otherwise modified from time to time, the “Repurchase Agreement”);
WHEREAS, in connection with the Existing Repurchase Agreement, the Guarantor executed and delivered that certain Amended and Restated Guaranty, dated as of August 7, 2008 (as amended, modified and in effect prior to the date hereof, the “Existing Guaranty”);
WHEREAS, it is a requirement to the amendment of the Existing Repurchase Agreement that the Existing Guaranty be amended and restated as provided herein;
WHEREAS, Guarantor is the direct owner of 100% of the membership interests of Seller;
WHEREAS, Guarantor expects to benefit if the Seller, the Buyer Agent and the Buyers amend the Existing Repurchase Agreement, and desires that the Buyer Agent and the Buyers amend the Repurchase Agreement; and
WHEREAS, the Buyer Agent and the Buyers would not amend, and would not be obligated to amend, the Existing Repurchase Agreement with Seller unless Guarantor executed this Guaranty;
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 amend the Existing Repurchase Agreement and accept the other Transaction 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.
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 “AHR Ireland” has the meaning set forth in Section 13.12(a) hereof.
1.3 “AHR Ireland Property” has the meaning set forth in Section 13.12(a) hereof.
1.4 “AHR Ireland Security Documents” has the meaning set forth in Section 13.12(a) hereof.
1.5 “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.
1.6 “Capital Stock” shall mean all shares, interests, participations or other equivalents (however designated) of capital stock of a corporation, and all similar ownership interests in a Person (other than a corporation), including, without limitation, non-managing member membership interests and limited partnership interests, and any and all warrants or options to purchase any of the foregoing.
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1.7 “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.
1.8 “Collateral” shall have the meaning set forth in the Credit Agreement.
1.9 “DB Facility Documents” shall have the meaning set forth in the Intercreditor Agreement.
1.10 “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.
1.11 “Facility Documents” shall have the meaning set forth in the Intercreditor Agreement.
1.12 “Guarantied Obligations” means Seller’s obligations: (a) to fully and promptly pay all sums owed under the Transaction Documents, other than the payment of the Secondary Deferred Restructuring Fee, at the times and according to the terms required by the Transaction 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 Transaction Documents, whether monetary or nonmonetary, when and as required by the Transaction Documents, including all obligations of Seller relating to the Repurchase Transactions and the Security under the Transaction Documents.
1.13 “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 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
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1.14 “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.
1.15 “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).
1.16 “Investment” shall mean in respect of any Person, any loan or advance to such Person, any purchase or other acquisition of any Capital Stock of such Person, any capital contribution to such Person or any other investment or interest in such Person.
1.17 “Lien” shall mean any mortgage, lien, pledge, charge, security interest or similar encumbrance.
1.18 “MS Facility Documents” shall have the meaning set forth in the Intercreditor Agreement.
1.19 “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.
1.20 “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.
1.21 “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.
1.22 “Off-Balance Sheet Obligations” means, 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 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).
1.23 “Organic Document” means, relative to the Guarantor or the Seller, as applicable, its certificate of incorporation, by-laws, certificate of partnership, partnership agreement, certificate of formation, limited liability agreement and all shareholder agreements, voting trusts and similar arrangements to which Anthracite or the Seller is a party applicable to any of its authorized shares.
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1.24 “Prescribed Laws” shall mean, collectively, (a) the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Public Law 107-56) (The “USA PATRIOT Act”), (b) Executive Order No. 13224 on Terrorist Financing, effective September 24, 2001, and relating to Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism, (c) the International Emergency Economic Power Act, 50 U.S.C. §1701 et. seq. and (d) all other Requirements of Law relating to money laundering or terrorism.
1.25 “Property” means any right or interest in or to property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible.
1.26 “Restrictive Covenant” has the meaning set forth in Section 13.2 hereof.
1.27 “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.
1.28 “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.
1.29 “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.
1.30 “Total Indebtedness” shall mean, for any period, the aggregate Indebtedness of Guarantor and its consolidated Subsidiaries (excluding non-recourse Indebtedness) during such period.
1.31 “Total Recourse Indebtedness” means, for any period, the aggregate Indebtedness (excepting any Non-Recourse Indebtedness) of Guarantor and its consolidated Subsidiaries during such period.
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. 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 Transaction 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 Transaction Documents, including any of the foregoing that would have accrued under the Transaction Documents but for any Insolvency Proceeding.
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4. CHANGES IN TRANSACTION 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 Transaction Document(s), (b) change, amend, or modify any Transaction 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 Transaction 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 Transaction 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. CERTAIN FINANCIAL COVENANTS. Guarantor shall satisfy with respect to itself each of the following financial covenants, as determined quarterly on a consolidated basis in conformity with GAAP as set forth in the financial statements of Guarantor delivered pursuant to Section 17 hereof:
5.1 Maintenance Tangible Net Worth. At the end of any fiscal quarter, the Guarantor shall not have a Tangible Net Worth less than the sum of Four Hundred Million Dollars ($400,000,000) plus seventy-five percent (75%) of any equity offering proceeds accepted by the Guarantor from and after the date of this Agreement.
5.2 Maintenance of Ratio of Total Indebtedness to Tangible Net Worth. The Guarantor’s ratio of Total Indebtedness to Tangible Net Worth shall not at any time be greater than 2.5:1.
5.3 Changes in Tangible Net Worth. At the end of any fiscal quarter, the Guarantor’s Tangible Net Worth shall not have decreased by (i) twenty percent (20%) or more from the Guarantor’s Tangible Net Worth as of the last Business Day in the third (3rd) month preceding such date; or (ii) forty percent (40%) or more from the Guarantor’s Tangible Net Worth as of the last Business Day in the twelfth (12th) month preceding such date; provided, that any such decrease shall be calculated exclusive of any decrease in the value of assets owned by (x) Carbon Capital I, Inc. up to a maximum aggregate amount of $1,482,514.80 or (y) Carbon Capital II, Inc. up to a maximum aggregate amount of $100,000,000.00, and, for the avoidance of doubt, in the case of either (x) or (y), any amount of decrease in the value of such assets above such amount shall be included in the calculation of any decrease in the Guarantor’s Tangible Net Worth.
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5.4 Minimum DSCR. DSCR at the end of each fiscal quarter shall not be less than 1.40:1.00.
5.5 Reserved.
5.6 Operating Earnings. Guarantor’s Operating Earnings shall not be less than:
(i) $15,163,000.00 for the fiscal quarter ending on June 30, 2009;
(ii) $14,931,000.00 for the fiscal quarter ending on September 30, 2009;
(iii) $15,288,000.00 for the fiscal quarter ending on December 31, 2009, March 31, 2010, June 30, 2010 and September 30, 2010.
5.7 Accounting Adjustments. Compliance with Sections 5.1 through 5.6 above shall be determined by excluding the assets and liabilities of variable interest entities required to be consolidated under FIN 46R and without giving any effect to any changes in or in the interpretation of FAS 140 after August 7, 2008.
6. NATURE OF GUARANTY. Guarantor’s liability under this Guaranty is a guaranty of payment and performance of the Guarantied Obligations, and is not a guaranty of collection or collectability. Guarantor’s liability under this Guaranty is not conditioned or contingent upon the genuineness, validity, regularity or enforceability of any of the Transaction Documents. Guarantor’s liability under this Guaranty is a continuing, absolute, and unconditional obligation under any and all circumstances whatsoever (except as expressly stated, if at all, in this Guaranty), without regard to the validity, regularity or enforceability of any of the Guarantied Obligations. Guarantor acknowledges that Guarantor is fully obligated under this Guaranty even if Seller had no liability at the time of execution of the Transaction Documents or later ceases to be liable under any Transaction Document, whether pursuant to Insolvency Proceedings or otherwise. Guarantor shall not be entitled to claim, and irrevocably covenants not to raise or assert, any defenses against the Guarantied Obligations that would or might be available to Seller, other than actual payment and performance of all Guarantied Obligations in full in accordance with their terms. Guarantor waives any right to compel the Buyer Agent to proceed first against Seller or any Security before proceeding against Guarantor. Guarantor agrees that if any of the Guarantied Obligations are or become void or unenforceable (because of inadequate consideration, lack of capacity, Insolvency Proceedings, or for any other reason), then Guarantor’s liability under this Guaranty shall continue in full force with respect to all Guarantied Obligations as if they were and continued to be legally enforceable, all in accordance with their terms before giving effect to the Insolvency Proceedings. Guarantor also recognizes and acknowledges that its liability under this Guaranty may be more extensive in amount and more burdensome than that of Seller. Guarantor waives any defense that might otherwise be available to Guarantor based on the proposition that a guarantor’s liability cannot exceed the liability of the principal. Guarantor intends to be fully liable under the Guarantied Obligations regardless of the scope of Seller’s liability thereunder. Without limiting the generality of the foregoing, if the Guarantied Obligations are “nonrecourse” as to Seller or Seller’s liability for the Guarantied Obligations is otherwise limited in some way, Guarantor nevertheless intends to be fully liable, to the full extent of all of Guarantor’s assets, with respect to all the Guarantied Obligations, even though Seller’s liability for the Guarantied Obligations may be more limited in scope or less burdensome. Guarantor waives any defenses to this Guaranty arising or purportedly arising from the manner in which any Buyer or the Buyer Agent disburses the Repurchase Transactions to Seller or otherwise, or any waiver of the terms of any Transaction Document by the Buyer Agent or other failure of the Buyer Agent to require full compliance with the Transaction Documents. Guarantor’s liability under this Guaranty shall continue until all sums due under the Transaction Documents have been paid in full and all other performance required under the
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Transaction Documents has been rendered in full, except as expressly provided otherwise (if at all) in this Guaranty. Guarantor’s liability under this Guaranty shall not be limited or affected in any way by any impairment or any diminution or loss of value of any Security whether caused by (a) hazardous substances, (b) the Buyer Agent’s failure to perfect a security interest in any Security, (c) any disability or other defense(s) of Seller, (d) any acts or omissions of the Buyers or the Buyer Agent; or (e) any breach by Seller of any representation or warranty contained in any Transaction Document.
7. WAIVERS OF RIGHTS AND DEFENSES. Guarantor waives any right to require the Buyer Agent or any Buyer to (a) proceed against Seller, (b) proceed against or exhaust any Security, or (c) pursue any other right or remedy for Guarantor’s benefit. Guarantor agrees that the Buyer Agent may proceed against Guarantor with respect to the Guarantied Obligations without taking any actions against Seller and without proceeding against or exhausting any Security. Guarantor agrees that the Buyer Agent may unqualifiedly exercise in its sole discretion (or may waive or release, intentionally or unintentionally) any or all rights and remedies available to it against Seller without impairing the Buyer Agent’s rights and remedies in enforcing this Guaranty, under which Guarantor’s liabilities shall remain independent and unconditional. Guarantor agrees and acknowledges that the Buyer Agent’s exercise (or waiver or release) of certain of such rights or remedies may affect or eliminate Guarantor’s right of subrogation or recovery against Seller (if any) and that Guarantor may incur a partially or totally nonreimbursible liability in performing under this Guaranty. Guarantor has assumed the risk of any such loss of subrogation rights, even if caused by the Buyer Agent’s acts or omissions. If the Buyer Agent’s enforcement of rights and remedies, or the manner thereof, limits or precludes Guarantor from exercising any right of subrogation that might otherwise exist, then the foregoing shall not in any way limit the Buyer Agent’s rights to enforce this Guaranty. Without limiting the generality of any other waivers in this Guaranty, Guarantor expressly waives any statutory or other right that Guarantor might otherwise have to: (i) limit Guarantor’s liability after a nonjudicial foreclosure sale conducted in accordance with the terms of the Repurchase Agreement and applicable law to the difference between the Guarantied Obligations and the fair market value of the property or interests sold at such nonjudicial foreclosure sale or to any other extent, (ii) otherwise limit the Buyer Agent’s right to recover a deficiency judgment after any foreclosure sale conducted in accordance with the terms of the Repurchase Agreement and applicable law, or (iii) require the Buyer Agent to exhaust its Security before the Buyer Agent may obtain, for the benefit of the Buyers, a personal judgment for any deficiency. Notwithstanding anything in the Repurchase Agreement to the contrary, any proceeds of a foreclosure or similar sale shall be applied first to any obligations of Seller that also constitute Guarantied Obligations within the meaning of this Guaranty. Guarantor acknowledges and agrees that any nonrecourse or exculpation provided for in any Transaction Document, or any other provision of a Transaction Document limiting the Buyer Agent’s recourse to specific Security or limiting the Buyer Agent’s right to enforce a deficiency judgment against Seller or any other person, shall have absolutely no application to Guarantor’s liability under this Guaranty.
8. ADDITIONAL WAIVERS.
8.1 Guarantor waives diligence and all demands, protests, presentments and notices of every kind or nature, including notices of protest, dishonor, nonpayment, acceptance of this Guaranty and the creation, renewal, extension, modification or accrual of any of the Guarantied Obligations. Guarantor further waives the right to plead any and all statutes of limitations as a defense to Guarantor’s liability under this Guaranty or the enforcement of this Guaranty. No failure or delay on the Buyer Agent’s part in exercising any power, right or privilege under this Guaranty shall impair or waive any such power, right or privilege.
8.2 Notwithstanding anything contained herein to the contrary, in recognition of the risks associated with the Buyer Agent’s and Buyers’ execution and performance of the Repo Amendment, and in consideration of the waivers of margin payments, waivers of financial covenants and other
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modifications to the other Transaction Documents, the Guarantor, for itself and on behalf of all of its subsidiaries, agrees that in the event that the Guarantor or any of its subsidaries becomes subject to any bankruptcy or insolvency proceedings, the Buyers and the Buyer Agent 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 Buyers or the Buyer Agent hereunder, in any other Transaction 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. NO DUTY TO PROVE LOSS. To the extent that Guarantor at any time incurs any liability under this Guaranty, Guarantor shall immediately pay the Buyer Agent (to be applied on account of the Guarantied Obligations) the amount provided for in this Guaranty, without any requirement that the Buyer Agent demonstrate that the Buyer Agent or any Buyer has currently suffered any loss or that the Buyer Agent or any Buyer has otherwise exercised (to any degree) or exhausted any of the Buyer Agent’s or Buyers’ rights or remedies with respect to Seller or any Security.
10. FULL KNOWLEDGE. Guarantor acknowledges, represents, and warrants that Guarantor has had a full and adequate opportunity to review the Transaction Documents, the transactions contemplated by the Transaction Documents, and all underlying facts relating to such transactions. Guarantor represents and warrants that Guarantor fully understands: (a) the remedies the Buyer Agent and/or the Buyers may pursue against Seller and/or Guarantor in the event of a default under the Transaction Documents, (b) the value (if any) and character of any Security and (c) Seller’s financial condition and ability to perform under the Transaction Documents. Guarantor agrees to keep itself fully informed regarding all aspects of the foregoing and the performance of Seller’s obligations to the Buyer Agent and the Buyers. Neither Buyer Agent nor any Buyer has a duty, whether now or in the future, to disclose to Guarantor any information pertaining to Seller, the Repurchase Transactions or any Security. If at any time provided for in the Transaction Documents, Guarantor agrees and acknowledges that an Insolvency Proceeding affecting Guarantor, or other actions or events relating to Guarantor (including Guarantor’s change in financial position), as set forth in the Transaction Documents, may be event(s) of default under the Transaction Documents.
11. REAFFIRMATION OF REPURCHASE AGREEMENT. For the avoidance of doubt, the Guarantor hereby agrees to and acknowledges the amendments to the Repurchase Agreement in the Repo Amendment.
12. REPRESENTATIONS AND WARRANTIES. Guarantor acknowledges, represents, and warrants as follows, and acknowledges that the Buyer Agent is relying upon the following acknowledgments, representations, and warranties by Guarantor in making the Repurchase Transactions:
12.1 Due Authorization. This Guaranty has been duly authorized, executed, and delivered by Guarantor, and is a legally valid and binding obligation of Guarantor, enforceable against Guarantor in accordance with its terms, subject to bankruptcy, insolvency and other limitations on creditors’ rights generally and to equitable principles.
12.2 No Conflict. The execution, delivery, and performance of this Guaranty will not violate any provision of any law, regulation, judgment, order, decree, determination, or award of any court, arbitrator or governmental authority, or of any mortgage, indenture, loan, or security agreement, lease, contract or other agreement, instrument or undertaking to which Guarantor is a party or that purports to bind Guarantor or any of Guarantor’s property or assets.
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12.3 No Third Party Consent Required. No consent of any person (including creditors or partners, members, stockholders or other owners of Guarantor) is required in connection with Guarantor’s execution of this Guaranty or performance of Guarantor’s obligations under this Guaranty (other than consents that have been obtained). Guarantor’s execution of, and obligations under, this Guaranty are not contingent upon any consent, license, permit, approval or authorization of, exemption by, notice or report to or registration, filing or declaration with, any governmental authority, bureau or agency, whether local, state, federal or foreign.
12.4 Authority and Execution. Guarantor has the necessary corporate power and authority to execute, deliver and perform its obligations under this Guaranty.
12.5 No Representations by the Buyer Agent nor the Buyers. Guarantor delivers this Guaranty based solely upon Guarantor’s own independent investigation and based in no part upon any representation, statement, or assurance by the Buyer Agent or the Buyers.
12.6 Accuracy of Information.
(a) All factual information, reports and other papers and data with respect to the Guarantor, the Seller, and each of their respective Subsidiaries (other than projections) furnished, and all factual statements and representations made, to the Buyer Agent or a Buyer by the Guarantor, the Seller, and each of their respective subsidiaries, or on behalf of any such Person, were, at the time the same were so furnished or made, when taken together with all such other factual information, reports and other papers and data previously so furnished and all such other factual statements and representations previously so made, complete and correct in all material respects, to the extent necessary to give the Buyer Agent true and accurate knowledge of the subject matter thereof in all material respects, and did not, as of the date so furnished or made, contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements contained therein not misleading in light of the circumstances in which the same were made.
(b) All projections with respect to the Guarantor, the Seller, and/or each of their respective Subsidiaries furnished by or on behalf of such Person to the Buyer Agent or a Buyer were prepared and presented in good faith by or on behalf of such Person. No fact is known to any of the Guarantor, the Seller, or any of their respective subsidiaries which materially and adversely affects or in the future is reasonably likely (so far as such Person can reasonably foresee) to cause a Material Adverse Change which has not been set forth in the financial statements provided pursuant to Section 17 hereof or in such information, reports, papers and data or otherwise disclosed in writing to the Buyer Agent prior to the effective date of the Repo Amendment.
(c) All written information furnished after the date hereof by or on behalf of the Guarantor, the Seller, or any of their respective subsidiaries to the Buyer Agent, a Buyer or the Lender in connection with this Agreement, the Repurchase Agreement or any other Senior Secured Facility and the transactions contemplated hereby and thereby, will be true, complete and accurate in every material respect, or in the case of projections, based on reasonable estimates, on the date as of which such information is stated or certified.
(d) Any financial projection or forecast furnished by or on behalf of the Guarantor, the Seller, or any of their respective subsidiaries to the Buyer Agent or a Buyer in connection with any Senior Secured Facility has been prepared on the basis of recent historical information and on the basis of reasonable assumptions and was fair (as at the date of the relevant report or document containing the projection or forecast) and arrived at after careful consideration.
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(e) There is no fact known to any Responsible Officer of the Guarantor, the Seller, or any of their respective Subsidiaries, which after due inquiry, that has or could reasonably be expected to cause a Material Adverse Change that has not been disclosed herein, in the Loan Documents, the other Transaction Documents or in a report, financial statement, exhibit, schedule, disclosure letter or other writing furnished to any Buyer or the Buyer Agent for use in connection with the transactions contemplated hereby or thereby.
12.7 Additional Collateral.
(a) On the effective date of the Repo Amendment, pursuant to the Additional Collateral Documents, the Guarantor and its subsidiaries (other than AHR Ireland) shall have granted to the Collateral Agent, for the benefit of the Secured Creditors, a first priority security interest in all Property of the Guarantor and its subsidiaries (other than AHR Ireland) that was not subject to a lien prior to the Restructuring Amendment Effective Date, other than any such Property having an aggregate fair market value at any one time not exceeding $250,000 (or the Dollar equivalent thereof (at the then current spot rate)).
(b) On or about the date hereof, pursuant to certain of the Transaction Documents, certain of the Anthracite and its Subsidiaries will have granted to Collateral Agent, for the benefit of the Secured Creditors, a second priority perfected security interest in all Collateral and other Property related thereto.
13. ADDITIONAL COVENANTS.
13.1 Seller Compliance. The Guarantor shall, or shall cause the Seller to, as applicable, comply with the requirements of Sections 11 and 12 of the Repurchase Agreement and the other provisions of the Repurchase Agreement.
13.2 Additional or More Restrictive Covenants. The Guarantor, has not, and shall not make, modify, amend or supplement any covenant to any other Person (i) that is more restrictive on the Guarantor than those set forth in Section 5 and this Section 13, and/or (ii) that relate to the Guarantor’s assets, liabilities, income, net worth, liquidity, profitability and/or with respect to ratios relating to any of the foregoing and/or the occurrence of a material adverse effect; unless the Guarantor has notified the Buyer Agent thereof and has executed an amendment to this Guaranty in a form acceptable to Buyer Agent whereby the Guarantor has made the same (or substantially the same) covenant(s) (each, a “Restrictive Covenant”) to the Buyer Agent, which Restrictive Covenant(s) shall be in addition to (and not in lieu of) the Guarantor’s covenants and obligations under this Guaranty. With respect to such amendment, the Guarantor shall also, upon the request of the Buyer Agent, have delivered to the Buyer Agent an opinion of counsel to the Guarantor acceptable to the Buyer Agent in its sole discretion. Such amendment shall provide that: (x) the Guarantor shall promptly notify the Buyer Agent (together with evidence reasonably satisfactory to the Buyer Agent) if compliance with any of the Restrictive Covenants is waived by the beneficiary thereof, and, in such event, for so long as such waiver is in effect, a breach of such Restrictive Covenant shall not constitute a default under this Guaranty (provided that none of the other covenants in this Section 12 are breached), and (y) prior to the Guarantor entering into any modification, supplement or amendment of a Restrictive Covenant made in favor of any Person, the Guarantor shall have executed a further amendment to this Guaranty in a form acceptable to the Buyer Agent whereby the applicable Restrictive Covenant shall be modified, supplemented or amended. With respect to such amendment, the Guarantor shall also, upon the request of the Buyer Agent, have delivered to the Buyer Agent an opinion of counsel to the Guarantor acceptable to the Buyer Agent in its sole discretion.
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13.3 DB Facility Documents and MS Facility Documents.
(a) The Guarantor shall not, and shall not permit any subsidiary to make any payment to any Secured Creditor under either the DB Facility Documents or the MS Facility Documents other than (i) payments expressly required to be paid to avoid the occurrence of an “event of default” (as such term is defined in the DB Facility Documents and the MS Facility Documents); (ii) payments expressly required to be paid pursuant to the Custodial and Account Control Agreement; and (iii) payments on account of a demand under the relevant guaranty occasioned by a default or acceleration of the underlying obligations.
(b) The Guarantor shall, and shall cause each of its subsidiaries to, strictly comply with the covenants and obligations of the Guarantor and each applicable subsidiary contained in the Facility Documents.
13.4 Covenant Against Increased Payments. The Guarantor shall not, and shall not permit any of its subsidiaries to increase any payment amount due on, increase the applicable interest rate applied to, nor accelerate any obligation under any existing Indebtedness.
13.5 Bankruptcy. At all times the Guarantor’s Organic Documents shall provide that the consent of all Independent Directors of Guarantor shall required for the Guarantor to:
(a) voluntarily commence any proceeding or file any petition seeking liquidation, reorganization or other relief under the Bankruptcy Code or any federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect;
(b) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition described in clause (a);
(c) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Guarantor or for a substantial part of its assets;
(d) file an answer admitting the material allegations of a petition filed against it in any such proceeding;
(e) make a general assignment for the benefit of creditors; or
(f) take any action for the purpose of effecting any of the foregoing.
13.6 Existence, etc. Each of Anthracite and its subsidiaries shall:
(a) preserve and maintain (i) its legal existence, (ii) all of its material rights, privileges, licenses and franchises, and (iii) maintain its tax residence in Ireland;
(b) comply with the requirements of all applicable laws, rules, regulations and orders of Governmental Authorities (including, without limitation, Prescribed Laws and all environmental laws) if failure to comply with such requirements would be reasonably likely (either individually or in the aggregate) to cause a Material Adverse Change;
(c) not move its registered office from the address referred to in Section 5.11 of the Credit Agreement or change its jurisdiction of organization or incorporation from the jurisdiction referred to in Section 5.11 of the Credit Agreement unless it shall have provided the Buyers and the Buyer Agent 15 Business Days’ prior written notice of such change;
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(d) pay and discharge, prior to the date on which penalties attach thereto, all taxes, assessments and governmental charges or levies imposed on it or on its income or profits or on any Purchased Asset or Property, which in any manner would create any lien or charge on the Purchased Assets, except for any such tax, assessment, charge or levy the payment of which is being contested in good faith and by proper proceedings and against which adequate reserves are being maintained in conformance with GAAP; and
(e) permit representatives of the Buyers and the Buyer Agent, upon reasonable prior written notice, during normal business hours and prior to the occurrence and continuance of an Event of Default, to examine, copy and make extracts from its books and records, to inspect any of its Properties, and to discuss its business and affairs with its officers, all to the extent reasonably requested by the either Buyer or the Buyer Agent and subject to the terms of any applicable confidentiality agreement.
13.7 Limitation on Liens. Neither Anthracite nor any of its Subsidiaries shall create, incur, assume or suffer to exist any lien on any Purchased Assets, its respective Property or revenues, whether now owned or hereafter acquired by it, other than:
(a) liens created pursuant to pursuant to the Repurchase Agreement and the other Transaction Documents.
(b) liens for taxes, assessments or other governmental charges or levies not yet subject to penalties or which are being contested in good faith and for which adequate reserves have been established by the Seller in accordance with GAAP;
(c) liens arising out of judgments or orders which do not constitute an Event of Default under the Repurchase Agreement and for which adequate reserves have been established by the Seller in accordance with GAAP;
(d) liens created pursuant to the Second Priority Collateral Documents or the Additional Collateral Documents; and
(e) liens created pursuant to secured Indebtedness permitted pursuant to the Repurchase Agreement; provided that any unsecured Indebtedness as of the Restructuring Amendment Effective Date remains unsecured.
13.8 Limitation on Distributions. Neither Anthracite nor any subsidiary shall make any Restricted Payments after the occurrence and during the continuance of an Event of Default.
13.9 Limitation on Investments. Neither Anthracite nor any subsidiary shall (a) own or hold any other substantial property or assets, except Purchased Assets, Primary Interests, Additional Collateral and assets that may be acquired in any foreclosure on, or other realization of collateral from, any of the foregoing, or (b) make any Investment, (1) except Permitted CDO Acquisitions (2) the acquisition of debt of Anthracite or its Subsidiaries in exchange for equity of Anthracite with the prior approval of the Lender and the other Secured Creditors, not to be unreasonably withheld or delayed; and (3) any other Investment approved by the Lender and the other Secured Creditors in their sole discretion.
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13.10 Blackrock Payments and Management Fees.
(a) Neither Anthracite nor any of its subsidiaries shall enter into any arrangement for the payment of, or pay, management, advisory or similar fees, except management and advisory fees payable in the form of Capital Stock of Anthracite or the Seller to the applicable Blackrock Entity pursuant to the Blackrock Management Agreement or management fees to its corporate services provider paid in the ordinary course of business; provided, that in any event no such fees may be paid (but may accrue) during the continuance of an Event of Default. Neither Anthracite nor any of its subsidiaries shall make any payment to BlackRock Financial Management or any other Blackrock Entity, other than Permitted Blackrock Payments.
13.11 Independent Directors.
(a) Anthracite shall at all times cause there to be not more than seven (7) members of the board of directors of which at least one duly appointed member of its board of directors shall be an Independent Director.
(b) Neither Anthracite nor any of its subsidiaries shall, without the prior unanimous written consent of all Independent Directors of Anthracite (i) voluntarily commence any proceeding or file any petition seeking liquidation, reorganization or other relief under any federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition described in clause (i), (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for Anthracite or any of its subsidiaries or for a substantial part of its assets, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors or (vi) take any action for the purpose of effecting any of the foregoing.
13.12 AHR Ireland and AHR Ireland Property.
(a) Within ten (10) Business Days of the date hereof, Guarantor shall (i) grant, or cause to be granted, to the Collateral Agent, for the benefit of the Secured Creditors, either directly or indirectly, a perfected first-priority security interest in all of the Property of AHR Capital Limited, a private, limited company incorporated in Ireland (“AHR Ireland”), in respect of which a security interest may be granted under applicable law, now owned or at any time hereafter acquired (collectively, the “AHR Ireland Property”); and (ii) transfer, or cause to be transferred, irrevocably and on an ongoing basis, all of the proceeds and income (including, without limitation, all dividends, interest and other distributions) after deductions for taxes and expenses in accordance with the relevant budget in respect of the AHR Ireland Property to the Restructuring Cash Management Account in Dollars, in each case, pursuant to documentation in form and substance acceptable to each Secured Creditor in its sole discretion exercised in good faith (such documentation, the “AHR Ireland Security Documents”).
(b) From and after the date hereof until the Guaranteed Obligations have been paid in full (i) Guarantor shall not, and shall not permit any Anthracite Party to, directly or indirectly, create, incur, assume or suffer to exist any lien (other than a lien that may be imposed by a governmental authority with jurisdiction over AHR Ireland or the AHR Ireland Property) upon any of the AHR Ireland Property in favor of any Person other than the Collateral Agent pursuant to Section 13.12(a) above; (ii) Guarantor shall not, and shall not permit any Anthracite Party to, enter into any material agreement, or materially amend or modify any existing agreement, in respect of AHR Ireland and the AHR Ireland Property, without the prior written consent of the Secured Creditors; provided that any such agreement, amendment or modification whose effect would cause the applicable line item in the Budget to be exceeded shall be deemed “material” for purposes of this clause (ii); and (iii) until the effective date of the
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AHR Ireland Security Documents, Guarantor shall transfer or cause to be transferred on an ongoing basis all proceeds and/or income (including, without limitation, any dividends, interest and other distributions) after deductions for taxes and expenses in accordance with the relevant budget in respect of the AHR Ireland Property, into the Restructuring Cash Management Account in Dollars within two (2) Business Days after receipt thereof.
13.13 Restructuring of Unsecured Indebtedness. Guarantor shall not, and shall not permit any other Anthracite Party to, restructure any or all of its unsecured Indebtedness in a manner that would increase any amount payable thereunder for the period ending on the later of (a) three (3) years from the date hereof and (ii) the Repurchase Date. Additionally, Guarantor shall not, and shall not permit any other Anthracite Party to, incur any fees in connection with such a restructuring in excess of an amount equal to 25% of the total amount of savings realized by such Anthracite Party from such restructuring prior to the Repurchase Date (without giving effect to any extensions).
14. REIMBURSEMENT AND SUBROGATION RIGHTS. Except to the extent that the Buyer Agent notifies Guarantor to the contrary in writing from time to time:
14.1 General Deferral of Reimbursement. Guarantor waives any right to be reimbursed by Seller for any payment(s) made by Guarantor on account of the Guarantied Obligations, unless and until all Guarantied Obligations have been paid in full and all periods within which such payments may be set aside or invalidated have expired. Guarantor acknowledges that Guarantor has received adequate consideration for execution of this Guaranty by virtue of the Buyers’ entering into the Repurchase Transactions (which benefits Guarantor, as an owner or principal of Seller) and Guarantor does not require or expect, and is not entitled to, any other right of reimbursement against Seller as consideration for this Guaranty.
14.2 Deferral of Subrogation and Contribution. Guarantor agrees it shall have no right of subrogation against Seller, the Buyers or the Buyer Agent and no right of subrogation against any Security unless and until: (a) all amounts due under the Transaction Documents have been paid in full and all other performance required under the Transaction Documents has been rendered in full to the Buyer Agent and the Buyers; and (b) all periods within which such payment and performance may be set aside or invalidated have expired (such deferral of Guarantor’s subrogation and contribution rights, the “Subrogation Deferral”).
14.3 Effect of Invalidation. To the extent that a court of competent jurisdiction determines that Guarantor’s Subrogation Deferral is void or voidable for any reason, Guarantor agrees, notwithstanding any acts or omissions by the Buyers or the Buyer Agent, that Guarantor’s rights of subrogation against Seller, the Buyer Agent and Guarantor’s right of subrogation against any Security shall at all times be junior and subordinate to the Buyer Agent’s rights against Seller and to the Buyer Agent’s right, title, and interest in such Security.
15. CLAIMS IN INSOLVENCY PROCEEDING. Guarantor shall not file any claim in any Insolvency Proceeding affecting Seller unless Guarantor simultaneously assigns and transfers such claim to the Buyer Agent, without consideration, pursuant to documentation fully satisfactory to the Buyer Agent. Guarantor shall automatically be deemed to have assigned and transferred such claim to the Buyer Agent whether or not Guarantor executes documentation to such effect. By executing this Guaranty, Guarantor hereby authorizes the Buyer Agent (and grants the Buyer Agent a power of attorney coupled with an interest, and hence irrevocable) to execute and file such assignment and transfer documentation on Guarantor’s behalf. the Buyer Agent shall have the sole right to vote, receive distributions on and exercise all other rights with respect to any such claim; provided, however, that if and when the Guarantied Obligations have been paid in full, the Buyer Agent shall release to Guarantor any further payments received on account of any such claim.
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16. BUYER’S DISGORGEMENT OF PAYMENTS. Upon payment of all or any portion of the Guarantied Obligations, Guarantor’s obligations under this Guaranty shall continue and remain in full force and effect if all or any part of such payment is, pursuant to any Insolvency Proceeding or otherwise, avoided or recovered directly or indirectly from the Buyer Agent as a preference, fraudulent transfer, or otherwise irrespective of (a) any notice of revocation given by Guarantor prior to such avoidance or recovery or (b) payment in full of the Repurchase Transactions. Guarantor’s liability under this Guaranty shall continue until all periods have expired within which the Buyer Agent could (on account of Insolvency Proceedings, whether or not then pending, affecting Seller or any other person) be required to return, repay, or disgorge any amount paid at any time on account of the Guarantied Obligations.
17. FINANCIAL INFORMATION. Within ninety days after the end of each fiscal year of Guarantor and within forty-five days after the end of each of the first three fiscal quarters, Guarantor shall deliver to the Buyer Agent the financial statements of Guarantor (audited for the annual financial statements and unaudited for the financial statements of the first three fiscal quarters), together with an officer’s certificate addressed to the Buyer Agent certifying that, as of the end of such fiscal quarter or fiscal year, as applicable, Guarantor was in compliance with each of the financial covenants contained in Section 5 of this Guaranty and showing in reasonable detail the calculations demonstrating such compliance.
18. FUNDAMENTAL CHANGES. Guarantor shall not wind up, liquidate, or dissolve its affairs or enter into any transaction of merger or consolidation (except a transaction of merger or consolidation in accordance with the Repurchase Agreement), or sell, lease, or otherwise dispose of (or agree to do any of the foregoing) all or substantially all of its property or assets, or change its state of formation or entity status, without the Buyer Agent and each Buyers’ prior written consent.
19. CONSENT TO JURISDICTION. Guarantor agrees that any proceeding to enforce this Guaranty may be brought in any state or federal court located in the State of New York. By executing this Guaranty, Guarantor irrevocably accepts and submits to the nonexclusive jurisdiction of each of the aforesaid courts, generally and unconditionally with respect to any such proceeding.
20. MERGER; NO CONDITIONS; AMENDMENTS. This Guaranty and documents referred to herein contain the entire agreement among the parties with respect to the matters set forth in this Guaranty. This Guaranty supersedes all prior agreements among the parties with respect to the matters set forth in this Guaranty. No course of prior dealings among the parties, no usage of trade, and no parol or extrinsic evidence of any nature shall be used to supplement, modify, or vary any terms of this Guaranty. This Guaranty is unconditional. There are no unsatisfied conditions to the full effectiveness of this Guaranty. No terms or provisions of this Guaranty may be changed, waived, revoked, or amended without the written agreement of the parties hereto. If any provision of this Guaranty is determined to be unenforceable, then all other provisions of this Guaranty shall remain fully effective.
21. GOVERNING LAW; ENFORCEMENT. This Guaranty shall be governed and construed in accordance with the internal laws of the State of New York (without regard to conflict of laws principles), notwithstanding the location of any Security. Guarantor acknowledges that any restrictions, limitations and prohibitions set forth in New York Real Property Actions and Proceedings Law Sections 1301 and 1371 that would or might otherwise limit or establish conditions to the Buyer Agent’s recovery of a judgment against Guarantor if the Security were located in the State of New York shall have absolutely no application to the Buyer Agent’s enforcement of this Guaranty as against Guarantor, except to the extent that real property Security is located within the State of New York. Guarantor acknowledges that this Guaranty is an “instrument for the payment of money only,” within the meaning of New York Civil Practice Law and Rules Section 3213.
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22. FURTHER ASSURANCES. Guarantor hereby agrees that it shall execute and deliver such further documents, and perform such further acts, as the Buyer Agent may reasonably request to achieve the intent of the parties as expressed in this Guaranty, provided, in each case, that any such documentation is consistent with this Guaranty and with the Transaction Documents.
23. WAIVER OF TRIAL BY JURY. GUARANTOR WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING FROM OR RELATING TO THIS GUARANTY OR THE TRANSACTION DOCUMENTS OR ANY OBLIGATION(S) OF GUARANTOR HEREUNDER OR UNDER THE TRANSACTION DOCUMENTS.
24. MISCELLANEOUS.
24.1 Assignability. the Buyer Agent may assign this Guaranty (in whole or in part) together with any one or more of the Transaction Documents to any Person permitted under the Repurchase Agreement, without in any way affecting Guarantor’s or Seller’s liability. In connection with any such assignment, Guarantor shall deliver such documentation as the Buyer Agent shall reasonably request. This Guaranty shall benefit the Buyer Agent and its successors and permitted assigns and shall bind Guarantor and its heirs, executors, administrators and successors. Guarantor may not assign this Guaranty, in whole or in part.
24.2 Notices. All notices, consents, approvals and requests required or permitted hereunder shall be given in writing and shall be effective for all purposes if hand delivered or sent by (i) hand delivery, with proof of attempted delivery, (ii) certified or registered United States mail, postage prepaid, (iii) expedited prepaid delivery service, either commercial or United States Postal Service, with proof of delivery or (iv) by facsimile (with transmission confirmation), provided that such faxed notice must also be delivered by one of the means set forth in (i), (ii) or (iii) above, addressed if to the Buyer Agent at Bank of America, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, Hearst Tower, 20th Floor, Mail Code: NC1-027-20-03, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇, Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇, Telephone: ▇▇▇-▇▇▇-▇▇▇▇, and if to Guarantor at c/o BlackRock Financial Management, Inc., ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: Mr. ▇▇▇▇▇▇▇ ▇▇▇▇, Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇, or at such other address and person as shall be designated from time to time by any party hereto, as the case may be, in a written notice to the other parties hereto in the manner provided for in this Section. A copy of all notices directed to Guarantor shall be delivered concurrently to the following: ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇., ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇ (028354-0040), Facsimile No.: (▇▇▇) ▇▇▇ ▇▇▇▇. A notice shall be deemed to have been given: (x) in the case of hand delivery, registered or certified mail or expedited prepaid delivery service, at the time of delivery or (y) in the case of facsimile, upon receipt of transmission confirmation, provided that such faxed notice was also delivered as required in this Section. A party receiving a notice which does not comply with the technical requirements for notice under this Section may elect to waive any deficiencies and treat the notice as properly given.
24.3 Interpretation. The word “include” and its variants shall be interpreted in each case as if followed by the words “without limitation.”
24.4 Counterparts. This Guaranty may be executed in counterparts, each of which so executed shall be deemed to be an original, but all of such counterparts shall together constitute but one and the same instrument. Delivery of an executed counterpart of a signature page of this Guaranty or any document or instrument delivered in connection herewith by telecopy shall be effective as delivery of a manually executed counterpart of this Guaranty or such other document or instrument, as applicable.
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25. BUSINESS PURPOSES. Guarantor acknowledges that this Guaranty, although executed in Guarantor’s individual capacity, is executed and delivered for business and commercial purposes, and not for personal, family, household, consumer or agricultural purposes. Guarantor acknowledges that Guarantor is not entitled to, and does not require the benefits of, any rights, protections, or disclosures that would or may be required if this Guaranty were given for personal, family, household, consumer, or agricultural purposes. Guarantor acknowledges that none of Guarantor’s obligation(s) under this Guaranty constitute(s) a “debt” within the meaning of the United States Fair Debt Collection Practices Act, 15 U.S.C. § 1692a(5), and accordingly compliance with the requirements of such act is not required if the Buyer Agent (directly or acting through its counsel) makes any demand or commences any action to enforce this Guaranty.
26. NO THIRD-PARTY BENEFICIARIES. This Guaranty is executed and delivered for the benefit of the Buyer Agent, for the benefit of the Buyers, and its heirs, successors, and permitted assigns, and is not intended to benefit any third party.
27. CERTAIN ACKNOWLEDGMENTS BY GUARANTOR. GUARANTOR ACKNOWLEDGES THAT BEFORE EXECUTING THIS GUARANTY: (A) GUARANTOR HAS HAD THE OPPORTUNITY TO REVIEW IT WITH AN ATTORNEY OF GUARANTOR’S CHOICE; (B) THE BUYER AGENT HAS RECOMMENDED TO GUARANTOR THAT GUARANTOR OBTAIN SEPARATE COUNSEL, INDEPENDENT OF SELLER’S COUNSEL, REGARDING THIS GUARANTY; AND (C) GUARANTOR HAS CAREFULLY READ THIS GUARANTY AND UNDERSTOOD THE MEANING AND EFFECT OF ITS TERMS, INCLUDING ALL WAIVERS AND ACKNOWLEDGMENTS CONTAINED IN THIS GUARANTY AND THE FULL EFFECT OF SUCH WAIVERS AND THE SCOPE OF GUARANTOR’S OBLIGATIONS UNDER THIS GUARANTY.
28. EFFECT OF AMENDMENT AND RESTATEMENT. As of the date hereof, the Existing Guaranty shall be amended, restated and superseded in its entirety. Each party to any Transaction Document hereby reaffirms its duties and obligations under such Transaction Document or Transaction Documents to which it is a party. Each reference to the Existing Guaranty in any Transaction Document shall be deemed to be a reference to this Guaranty.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, Guarantor has duly executed this Guaranty as of the date first written above.
| ANTHRACITE CAPITAL, INC., as Guarantor | ||
| By: | ▇▇▇▇ ▇▇▇▇▇▇▇▇ | |
| Name: | ▇▇▇▇ ▇▇▇▇▇▇▇▇ | |
| Title: | Vice President | |