THIRD OMNIBUS AMENDMENT AND AGREEMENT
Exhibit
10.1
Execution
Copy
THIRD
OMNIBUS AMENDMENT AND AGREEMENT
THIRD
OMNIBUS AMENDMENT AND AGREEMENT, dated as of January 28, 2009 (this “Agreement”), in
respect of (a) that certain Master Repurchase Agreement, dated as of July 20,
2007 (together with Annex I thereto (“Annex I”), as both
are amended, restated, supplemented or otherwise modified and in effect prior to
the date hereof, the “Existing Repurchase
Agreement”, and as both are amended hereby and as further amended,
restated, supplemented or otherwise modified and in effect from time to time,
the “Repurchase
Agreement”), by and among ANTHRACITE CAPITAL BOFA FUNDING LLC, as seller
(the “Seller”),
BANK OF AMERICA, N.A. (“BANA”) as a buyer,
BANC OF AMERICA MORTGAGE CAPITAL CORPORATION (“BAMCC”; BANA and
BAMCC, individually and/or collectively, as the context may require, each a
“Buyer” and
collectively, the “Buyers”) as a buyer,
and BANA as agent for the Buyers (in such capacity, the “Buyer Agent”); (b)
that certain Credit Agreement, dated as of March 17, 2006 (as amended, restated,
supplemented or otherwise modified prior to the date hereof, the “Existing Credit
Agreement”, and as amended hereby and as amended, restated, supplemented
or otherwise modified from time to time, the “Credit Agreement”),
by and among ANTHRACITE CAPITAL, INC. (“Anthracite”) as
borrower agent (in such capacity, the “Borrower Agent”), AHR
CAPITAL BOFA LIMITED (“AHR”) as a borrower,
each of the borrowers from time to time party thereto (together with AHR,
collectively, the “Borrowers”; the
Borrowers and the Borrower Agent, collectively, the “Anthracite CA
Parties”) and BANA as lender (in such capacity, the “Lender”; the Buyers,
the Buyer Agent and the Lender, collectively, the “BOA Parties”); (c)
that certain Amended and Restated Fee Letter, dated as of August 7, 2008 (as
amended, restated, supplemented or otherwise modified prior to the date hereof,
the “Existing Fee
Letter” and together with the Existing Repurchase Agreement and the
Existing Credit Agreement, collectively, the “Existing Agreements”;
and as amended hereby and as amended, restated, supplemented or otherwise
modified from time to time, the “Fee Letter”; and
together with the Repurchase Agreement and the Credit Agreement, collectively,
the “Amended
Agreements”) between the Lender and the Borrower Agent, (d) that certain
Amended and Restated Guaranty, dated as of August 7, 2008, made by Anthracite,
as guarantor (in such capacity, the “Repo Guarantor”), in
favor of the Buyer Agent for the benefit of the Buyers; and (e) that certain
Amended and Restated Parent Guaranty, dated as of August 7, 2008, made by
Anthracite, as guarantor (in such capacity, the “CA Guarantor”, and
together with the “Repo Guarantor”,
collectively, the “Guarantor”), in favor
of the Lender. Capitalized terms used but not otherwise defined
herein shall have the meanings given to them in the Amended Agreements, as
applicable.
RECITALS
WHEREAS,
the Seller, the Buyers and the Buyer Agent are parties to the Repurchase
Agreement;
WHEREAS,
the Anthracite CA Parties and the Lender are parties to the Credit Agreement;
and
WHEREAS,
the Seller and the Anthracite CA Parties have requested, and the BOA Parties
have agreed, that the Existing Agreements be amended subject to the terms
hereof.
NOW
THEREFORE, the Seller, the Anthracite CA Parties, the Guarantor and the BOA
Parties 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
2 of Annex I to the Existing Repurchase Agreement is hereby amended by deleting
the defined term “Facility Amount” in its entirety and inserting in lieu thereof
the following:
“Facility Amount”
shall mean, initially, $127,889,494, and such “Facility Amount” shall be reduced
by any payment to Buyer on account of the Repurchase Price (excluding payments
of Price Differential) of any Purchased Asset.”
(b) Section
3.6 of Annex I to the Existing Repurchase Agreement is hereby amended by
deleting it in its entirety and inserting in lieu thereof the
following:
3.6 Reserved.
(c) Section
1.01 of the Existing Credit Agreement is hereby amended by deleting the defined
term “Maximum Credit” in its entirety and inserting in lieu thereof the
following:
“Maximum Credit” shall
mean, initially, $38,796,256, and such “Maximum Credit” shall be reduced by any
payment or prepayment to Lender on account of the principal balance of any Loan;
provided further, that on each
Dollar Equivalent Overadvance Date, the “Maximum Credit” shall be increased by
an amount not to exceed the Dollar Equivalent Overadvance Maximum
Credit.
(d) Section
1.01 of the Existing Credit Agreement is hereby amended by deleting the defined
term “Dollar Equivalent Overadvance Maximum Credit” in its entirety and
inserting in lieu thereof the following:
“Dollar Equivalent
Overadvance Maximum Credit” shall mean, in respect of any Dollar
Equivalent Overadvance Loan, initially, $5,819,438 and such “Dollar Equivalent
Overadvance Maximum Credit” shall be reduced, pro rata based on the ratio
between the Dollar Equivalent Overadvance Maximum Credit and the Maximum Credit,
by any payment or prepayment to Lender on account of the principal balance of
any Loan.
(e) Paragraph
(b) of the Existing Fee Letter is hereby amended by deleting it in its entirety
and inserting in lieu thereof the following:
(b) Reserved;
SECTION
2. Agreements. Each
of the Seller and the Anthracite CA Parties hereby agrees as
follows:
(a) No
additional Transactions shall be permitted under the Master Repurchase
Agreement.
(b) No
additional Loans, borrowings or other extensions of credit shall be made by
Lender to any Borrower under the Credit Agreement.
(c) Beginning
on and including January 28, 2009, no additional Unused Fee (as defined in each
of the Existing Repurchase Agreement and the Existing Fee Letter) shall be
due. For the avoidance of doubt, any accrued but unpaid Unused Fee as
of January 28, 2009 shall be due and payable pursuant to the terms of the
Repurchase Agreement, the Credit Agreement and Fee Letter, as
applicable.
SECTION
3. Guarantor
Affirmation. For the avoidance of doubt, the Guarantor hereby
agrees to and acknowledges the amendments in Section 1 and the Agreements in
Section
2 hereof.
SECTION
4. Conditions
Precedent. This Agreement shall become effective on the date
(the “Agreement
Effective Date”) on which the Buyer Agent shall have
received
(a) this
Agreement, executed and delivered by a duly authorized officer of each of the
Seller, the Anthracite CA Parties, and the Guarantor; and
(b) for
the account of the applicable BOA Party, payment and reimbursement for all of
the BOA Parties’ corresponding costs and expenses incurred in connection with
this Agreement, all prior amendments and modifications to the Repurchase
Agreement and the Credit Agreement, any other documents prepared in connection
herewith and therewith and the transactions contemplated hereby and thereby,
other than the fees and disbursements of Cadwalader, Xxxxxxxxxx & Xxxx LLP,
counsel to the BOA Parties, which counsel fees and disbursements shall be paid
in accordance with Section 10 hereof.
SECTION
5. Representations and
Warranties. On and as of the date first above written, each of
the Seller and Anthracite CA Parties hereby represents and warrants to the BOA
Parties that (a) it is in compliance with all the terms and provisions set forth
in the Transaction Documents or the Loan Documents, as applicable, as amended
hereby on its part to be observed or performed, (b) after giving effect to this
Agreement, no Default or Event of Default under the Repurchase Agreement and the
Credit Agreement has occurred and is continuing, and (c) after giving effect to
this Agreement, the representations and warranties contained in Section 10 of
the Repurchase Agreement and 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
6. Limited
Effect. Except as expressly amended and modified by this
Agreement, the Existing Agreements shall continue to be, and shall remain, in
full force and effect in accordance with their respective terms; provided, however, that upon
the Agreement Effective Date, all references in the Repurchase Agreement and
herein to the “Transaction Documents” and all references in the Credit Agreement
and herein to the “Loan Documents” shall be deemed to include, in any event,
this Agreement. Each reference to an Amended Agreement in any of the
Transaction Documents or the Loan Documents shall be deemed to be a reference to
the applicable Amended Agreement as amended hereby.
SECTION
7. Override
Provision. Notwithstanding any provision in the Amended
Agreements to the contrary, which are hereby pro tanto superseded and
modified or replaced mutatis
mutandis to the extent of any inconsistency, the provisions in this
Agreement shall apply from and after the date hereof.
SECTION
8. Counterparts. This
Agreement 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 Agreement in Portable Document
Format (PDF) or by facsimile transmission shall be effective as delivery of a
manually executed original counterpart thereof.
SECTION
9. GOVERNING
LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 10. Covenant. Each
of the Seller and the Anthracite CA Parties hereby covenants and agrees, on a
joint and several basis, to pay promptly, following receipt of an invoice
therefor, the fees and disbursements of Cadwalader, Xxxxxxxxxx & Xxxx LLP,
counsel to the BOA Parties, incurred by such parties in connection with this
Agreement, all prior amendments and modifications to the Repurchase Agreement
and the Credit Agreement, any other documents prepared in connection herewith
and therewith and the transactions contemplated hereby and thereby; provided that if such
invoiced amounts are not paid in full within five (5) Business Days of the date
of receipt of the applicable invoice by the Seller or any Anthracite CA Party,
as the case may be, each of the Seller and the Anthracite CA Parties, as
applicable, hereby acknowledges and agrees that (a) with respect to the
Cash Management Account established in connection with the Repurchase Agreement,
the Account Bank shall apply (at the direction of the Buyer Agent) all Income
received by the Account Bank in respect of the Purchased Assets and the
associated Hedging Agreements on the Business Day next following the Business
Day on which such Income is deposited in the Cash Management Account to the
payment of such invoiced but unpaid amounts until such amounts are paid in full,
and (b) with respect to the Concentration Accounts established in
connection with the Credit Agreement, the Lender shall be entitled to direct the
Bank to pay such invoiced but unpaid amounts directly to the applicable counsel
to the BOA Parties from the funds on deposit in the Concentration Accounts until
all such invoiced but unpaid amounts are paid in full.
[SIGNATURES
FOLLOW]
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered as of the day and year first above written.
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ANTHRACITE CAPITAL,
INC., as Borrower
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Agent
and Guarantor
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By:
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/s/
Xxxx Xxxxxxxx
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Name:
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Xxxx
Xxxxxxxx
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Title:
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Vice
President
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ANTHRACITE
CAPITAL BOFA FUNDING
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LLC, as
Seller
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By:
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/s/
Xxxx Xxxxxxxx
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Name:
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Xxxx
Xxxxxxxx
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Title:
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Director
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AHR CAPITAL BOFA
LIMITED, as Borrower
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By:
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/s/
Xxxxxxx Xxxx
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Name:
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Xxxxxxx
Xxxx
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Title:
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Director
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BANK OF AMERICA N.A., as
Lender, Buyer and
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Buyer
Agent
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By:
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/s/
Xxxxxxx X. Xxxxx
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Name:
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Xxxxxxx
X. Xxxxx
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Title:
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Managing
Director
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BANC
OF AMERICA MORTGAGE CAPITAL
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CORPORATION, as
Buyer
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By:
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/s/
Xxxxx Xxxxxxx
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Name:
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Xxxxx
Xxxxxxx
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Title:
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Managing
Director
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