AMENDMENT, AGREEMENT AND WAIVER
Exhibit
10.1
Execution
Copy
AMENDMENT,
AGREEMENT AND WAIVER
AMENDMENT,
AGREEMENT AND WAIVER dated as of August 7, 2008 (this “Amendment”),
in
respect of the Credit Agreement, dated as of March 17, 2006 (as previously
amended, restated, supplemented or otherwise modified and in effect from time
to
time, the “Existing
Credit Agreement”;
as
amended hereby and as further amended, restated, supplemented or otherwise
modified and in effect from time to time, the “Credit
Agreement),
by and
among AHR CAPITAL BOFA LIMITED (“AHR”)
as a
borrower, each of the borrowers from time to time party thereto (together with
AHR, collectively, the “Borrowers”),
ANTHRACITE CAPITAL, INC. (“Anthracite”,
and
together with the AHR and the other Borrowers, collectively, the “Anthracite
CA Parties”)
as
borrower agent (in such capacity, the “Borrower
Agent”)
and
BANK
OF
AMERICA, N.A. (“BANA”)
as
lender
(in such capacity, the “Lender”).
Capitalized terms used but not otherwise defined herein shall have the meanings
given to them in the Credit Agreement.
RECITALS
WHEREAS,
the Anthracite CA Parties and the Lender are parties to the Credit
Agreement;
WHEREAS,
as a condition to the Credit Agreement, Anthracite has executed that certain
Parent Guaranty, dated as of July 17, 2006 (the “Guaranty”),
made
by Anthracite in favor of the Lender.
WHEREAS,
pursuant to that certain Borrowing Base Deficiency Event Notice, dated as of
July 29, 2008 (the “July
Borrowing Base Deficiency Event Notice”),
the
Lender has (i) notified the Anthracite CA Parties that a Borrowing Base
Deficiency Event has occurred (the “July
Borrowing Base Deficiency Event”)
and
(ii) requested that the Borrowers make a payment to the Lender in accordance
with the Additional Terms Schedule attached hereto as Schedule
1
(the
“Additional
Terms Schedule”);
WHEREAS,
the Lender has agreed, subject to the terms hereof, to allow the Borrowers
to
pay outstanding amounts due to the occurrence of the July Borrowing Base
Deficiency Event pursuant to a schedule of payments;
WHEREAS,
Anthracite Capital BOA Funding LLC (“Anthracite
Funding”),
a
wholly-owned subsidiary of Anthracite, is party to that certain Master
Repurchase Agreement, dated as of July 20, 2007 (as amended, restated,
supplemented or otherwise modified from time to time, the “Repurchase
Agreement”),
by
and among Anthracite Funding as seller (the “Seller”),
BANA,
as buyer agent (in such capacity, the “Buyer
Agent’)
and
buyer, and Bank of America Mortgage Capital Corporation as buyer (“BAMCC”,
together with BANA, collectively, the “Buyers”;
the
Buyers, the Buyer Agent and the Lender, collectively, the “BOA
Parties”);
WHEREAS,
pursuant to that certain Portfolio Margin Deficit Notice, dated as of July
29,
2008 (the “July
Portfolio Margin Deficit Notice”),
the
Buyer Agent has (i) notified the Seller that a Portfolio Margin Deficit (as
defined in the Repurchase Agreement) exists (the “July
Portfolio Margin Deficit”)
and
(ii) requested that the Seller make a payment to the Buyer Agent, for the
benefit of the Buyers in accordance with the Additional Terms
Schedule;
WHEREAS,
the Buyer Agent and the Sellers have agreed, subject to the terms of the Repo
Amendment (as defined below), that the Seller will pay the remaining balance
of
the July Portfolio Margin Deficit pursuant to a schedule of
payments;
WHEREAS,
simultaneously with this Amendment, the Seller, the Buyers and the Buyer Agent
shall execute an amendment to the Repurchase Agreement (the “Repo
Amendment”);
WHEREAS,
the Anthracite CA Parties have agreed to amend and restate the Collateral
Documents to grant, as collateral security for the prompt and complete payment
and performance when due (whether at the stated maturity, by acceleration or
otherwise) of (i) the Seller’s obligations under the Repurchase Agreement,
including, without limitation, the Seller’s obligations to make the Repo
Deferred Payments (as defined in the Repo Amendment), and (ii) Borrowers’
obligations under the Credit Agreement, including without limitation, the
Borrowers’ obligation to make the CA Deferred Payment (as defined below), a
security interest in the Collateral;
WHEREAS,
Anthracite Funding has agreed to grant, as collateral security for the prompt
and complete payment and performance when due (whether at the stated maturity,
by acceleration or otherwise) of the Obligations, a security interest in the
Collateral (as defined in the Affiliate Security Agreement); and
WHEREAS,
the Anthracite CA Parties and the Lender have agreed, subject to the terms
and
conditions of this Amendment, that the Credit Agreement shall be amended as
set
forth below.
NOW
THEREFORE, the Anthracite CA Parties and the Lender hereby agree, in
consideration of the mutual premises and mutual obligations set forth herein,
the receipt and sufficiency of which is hereby acknowledged, as
follows:
SECTION
1. Amendments.
(a) Section
1.01 of the Existing Credit Agreement is hereby amended by deleting the
definition of “Termination Date” in its entirety and substituting in lieu
thereof the following new definition:
““Termination
Date”
shall
mean September 18, 2010.”
(b) Section
1.01 of the Existing Credit Agreement is hereby amended by adding the following
new definitions in proper alphabetical order:
““Additional
Terms Schedule”
means
the Additional Terms Schedule, attached as Schedule 1 to the Amendment,
Agreement and Waiver, as the same may be modified from time to
time.
“Amendment,
Agreement and Waiver”
shall
mean that certain Amendment, Agreement and Waiver, dated as of August 7, 2008,
by and among the Borrowers, the Borrower Agent and the Lender.
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“Buyer
Agent”
shall
mean Bank of America, N.A.
“CA
Deferred Payment”
shall
have the meaning specified therefor in the Amendment, Agreement and
Waiver.
“Repo
Deferred Payments”
shall
mean the term “Repo Deferred Payments” as defined in the Repurchase
Agreement.
“Repo
Obligations”
means
Seller’s obligations: (a) to fully and promptly pay all sums owed under the
Repurchase Documents (as defined in the Repurchase Agreement), including,
without limitation, the Repo Deferred Payments, at the times and according
to
the terms required by the Repurchase Documents, without regard to any
modification, suspension, or limitation of such terms not agreed to by the
Buyer
Agent, such as a modification, suspension, or limitation arising in or pursuant
to any Insolvency Proceeding (as defined in the Repurchase Agreement) affecting
Seller (even if any such modification, suspension, or limitation causes Seller’s
obligation to become discharged or unenforceable and even if such modification
was made with the Buyer Agent’s consent or agreement); and (b) to perform all
other obligations contained in the Repurchase Documents, whether monetary or
nonmonetary, when and as required by the Repurchase Documents, including all
obligations of Seller relating to the Repurchase Transactions under the
Repurchase Documents.
“Repurchase
Agreement”
shall
mean that certain Master Repurchase Agreement, dated as of July 20, 2007, by
and
among Seller, Bank of America, N.A., as buyer, Bank of America Mortgage Capital
Corporation as buyer and the Buyer Agent, as the same may be amended, restated,
supplemented or otherwise modified from time to time.
“Repurchase
Price”
shall
mean the term “Repurchase Price” as defined in the Repurchase
Agreement.
“Seller”
means
Anthracite Capital BOFA Funding LLC.”
(c) Section
2.06 of the Existing Credit Agreement is hereby amended by inserting the
following new subsections in proper alphabetical order:
“(f) Notwithstanding
anything contained herein to the contrary, and in addition to any other amounts
due and payable from time to time under the Credit Agreement and the other
Loan
Documents, the Borrowers shall pay to the Lender the principal amount of the
Loans in consecutive monthly installments pursuant to the terms of the
Additional Terms Schedule.”
(d) Section
2.07 of the Existing Credit Agreement is hereby amended by deleting such section
in its entirety and inserting in lieu thereof the following:
“2.07 Reserved.”
(e) Section
7(k)(i) of the Existing Credit Agreement is hereby amended by deleting it in
its
entirety and inserting in lieu thereof the following:
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“(i)
defaulted or failed to perform under (A) any BOA Indebtedness or (B) any note,
indenture, loan agreement, guaranty, swap agreement or any other contract,
agreement or transaction to which it is a party, which default (1) involves
the
failure to pay matured obligations or (2) permits the acceleration of the
maturity of the obligations by any other party to, or beneficiary of, such
note,
indenture, loan agreement, guaranty, swap agreement or other contract agreement
or transaction,”
SECTION
2. Waiver.
The
Lender and the Anthracite CA Parties hereby waive the notice requirements of
Section 2.07 of the Existing Credit Agreement with respect to extending the
Termination Date.
SECTION
3. CA
Deferred Payment.
The
Borrowers hereby agree to make an additional payment to the Lender as per the
Additional Terms Schedule.
SECTION
4. Guarantor
Affirmation.
For the
avoidance of doubt, the Guarantor hereby agrees and confirms that the CA
Deferred Payment constitutes a “Guaranteed Obligation” (as such term is defined
in the Guaranty).
SECTION
5. Further
Assurances.
The
Anthracite CA Parties hereby agree to execute and deliver, or cause to be
executed and delivered, from time to time, such additional instruments,
certificates or documents, and take such actions as the Lender may reasonably
request for the purposes of implementing or effectuating the provisions of
this
Amendment, the Credit Agreement, the other Loan Documents, the Repurchase
Agreement and the other Transaction Documents (as defined in the Repurchase
Agreement), or of more fully perfecting or renewing the rights of the BOA
Parties with respect to the Collateral (or with respect to any additions thereto
or replacements or proceeds thereof or with respect to any other property or
assets hereafter acquired by an Anthracite CA Party which may be deemed to
be
part of the Collateral) pursuant hereto or thereto. Upon the exercise by a
BOA
Party of any power, right, privilege or remedy pursuant to this Amendment,
the
Credit Agreement, the other Loan Documents, the Repurchase Agreement and the
other Transaction Documents (as defined in the Repurchase Agreement) which
requires any consent, approval, recording, qualification or authorization of
any
Governmental Authority, the Anthracite CA Parties will execute and deliver,
or
will cause the execution and delivery of, all applications, certifications,
instruments and other documents and papers that the applicable BOA Party may
be
required to obtain from the Anthracite CA Parties for such governmental consent,
approval, recording, qualification or authorization.
SECTION
6. Conditions
Precedent.
This
Amendment shall become effective on the date (the “Amendment
Effective Date”)
on
which the Lender shall have received:
(a)
this
Amendment, executed and delivered by a duly authorized officer of the Anthracite
CA Parties;
(b) the
Amended and Restated Parent Pledge Agreement, dated as of the date hereof,
duly
executed by the parties thereto, and in form and substance acceptable to the
Lender in its sole discretion;
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(c)
the
Amended and Restated Borrower Security Agreement, dated as of the date hereof,
duly executed by the parties thereto, and in form and substance acceptable
to
the Lender in its sole discretion, in form and substance acceptable to the
Lender in its sole discretion;
(d) the
Supplemental UK Deed of Charge, dated as of the date hereof, duly executed
by
the parties thereto, and in form and substance acceptable to the Lender in
its
sole discretion, in form and substance acceptable to the Lender in its sole
discretion;
(e) the
Amended and Restated Irish Share Charge, dated as of the date hereof, duly
executed by the parties thereto, and in form and substance acceptable to the
Lender in its sole discretion, in form and substance acceptable to the Lender
in
its sole discretion;
(f) the
Amended and Restated Irish Debenture, dated as of the date hereof, duly executed
by the parties thereto, and in form and substance acceptable to the Lender
in
its sole discretion, in form and substance acceptable to the Lender in its
sole
discretion;
(g) the
Amended and Restated Parent Guaranty, dated as of the date hereof, duly executed
by the parties thereto, and in form and substance acceptable to the Lender
in
its sole discretion;
(h) the
Amended and Restated Fee Letter, dated as of the date hereof, duly executed
by
the parties thereto, and in form and substance acceptable to the Lender in
its
sole discretion;
(i) the
Amended and Restated Custodial and Payment Application Agreement, dated as
of
the date hereof, duly executed by the parties thereto, and in form and substance
acceptable to the Lender in its sole discretion;
(j) the
Affiliate Security Agreement, dated as of the date hereof (the “Affiliate
Security Agreement”),
duly
executed by the parties thereto, and in form and substance acceptable to the
Lender in its sole discretion;
(k) the
Additional Security Agreement (Germany), dated as of the date hereof, duly
executed by the parties thereto, and in form and substance acceptable to the
Lender in its sole discretion;
(l) the
Repo
Amendment, dated as of the date hereof, duly executed by the parties thereto,
and in form and substance acceptable to the Lender in its sole
discretion;
(m) a
certificate from each Anthracite CA Party, substantially in the form of
Exhibit
A
hereto,
dated as of the date hereof, executed and delivered by a duly authorized officer
thereof;
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(n) legal
opinions of US, English and Irish outside counsel to the Anthracite CA Parties
and the Seller which shall cover such matters incident to this Amendment and
the
other documents delivered in connection herewith as the Lender may
require;
(o) a
non-refundable amendment fee payable by the Borrower Agent to the Lender, in
an
amount equal to 0.50% (50.00 basis points) of the Maximum Credit;
and
(p) such
other documents as the Lender may reasonably request.
SECTION
7. Representations
and Warranties.
On and
as of the date first above written, each Anthracite CA Party hereby represents
and warrants to the Lender that (a) it is in compliance with all the terms
and
provisions set forth in the Loan Documents as amended hereby on its part to
be
observed or performed, (b) no Default or Event of Default has occurred and
is
continuing, and (c) the representations and warranties contained in Section
5 of
the Credit Agreement are true and correct in all material respects as though
made on such date (except for any such representation or warranty that by its
terms refers to a specific date other than the date first above written, in
which case it shall be true and correct in all material respects as of such
other date).
SECTION
8. Limited
Effect.
Except
as expressly amended and modified by this Amendment, the Existing Credit
Agreement shall continue to be, and shall remain, in full force and effect
in
accordance with its terms; provided,
however,
that
upon the Amendment Effective Date, all references therein and herein to the
“Loan Documents” shall be deemed to include, in any event, this Amendment. Each
reference to the Credit Agreement in any of the Loan Documents shall be deemed
to be a reference to the Credit Agreement as amended hereby.
SECTION
9. Counterparts.
This
Amendment may be executed by each of the parties hereto on any number of
separate counterparts, each of which shall be an original and all of which
taken
together shall constitute one and the same instrument. Delivery of an executed
counterpart of a signature page to this Amendment in Portable Document Format
(PDF) or by facsimile transmission shall be effective as delivery of a manually
executed original counterpart thereof.
SECTION
10. Acknowledgment.
Each
Anthracite CA Party hereby acknowledges that the Lender does not currently
intend to extend the Termination Date of the Credit Agreement to a date later
than the applicable date provided under this Amendment.
SECTION
11. GOVERNING
LAW.
THIS
AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF
THE STATE OF NEW YORK.
[SIGNATURES
FOLLOW]
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IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed and delivered as of the day and year first above written.
ANTHRACITE
CAPITAL, INC.,
a
Maryland corporation, as Borrower Agent and Guarantor
By:
/s/ ▇▇▇▇▇▇▇
▇▇▇▇
Name:
▇▇▇▇▇▇▇ ▇▇▇▇
Title:
President and COO
SIGNED,
SEALED AND DELIVERED
by
the
duly
authorised attorney of
AHR
CAPITAL BOFA LIMITED,
as
Borrower,
in
the
presence of:
By: /s/
▇▇▇▇▇▇▇
▇▇▇▇
Name:
▇▇▇▇▇▇▇ ▇▇▇▇
Title:
Director
Signature
Page to Amendment, Agreement and Waiver
BANK
OF AMERICA N.A.,
as
Lender
By: /s/
▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:
Managing Director
Signature
Page to Amendment, Agreement and Waiver
Exhibit
A
[Officer’s
Certificate]
A-1
Schedule
1
[Additional
Terms Schedule]
S1-1