AMENDMENT AND AGREEMENT
Exhibit
10.2
Execution
Copy
AMENDMENT
AND AGREEMENT
AMENDMENT
AND AGREEMENT, dated as of August 7, 2008 (this “Amendment”),
in
respect of the Master Repurchase Agreement, dated as of July 20, 2007 (together
with Annex I thereto, as both are amended, restated, supplemented or otherwise
modified prior to the date hereof, the “Existing
Repurchase Agreement”;
as
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”),
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”),
and
BANK OF AMERICA N.A. as agent for the Buyers (in such capacity, the
“Buyer
Agent”).
Capitalized terms used but not otherwise defined herein shall have the meanings
given to them in the Repurchase Agreement.
RECITALS
WHEREAS,
the Seller, the Buyers and the Buyer Agent are parties to the Repurchase
Agreement;
WHEREAS,
as a condition to the Repurchase Agreement, Anthracite Capital, Inc.
(“Anthracite”)
has
executed that certain Guaranty, dated as of July 20, 2007 (the “Guaranty”),
made
by Anthracite in favor of the Buyer Agent for the benefit of the
Buyers;
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 exists
(the “July
Portfolio Margin Deficit”)
and
(ii) requested that the Seller make a partial payment to the Buyer Agent,
for the benefit of the Buyers in accordance with the Additional Terms Schedule
attached hereto as Schedule 1 (the “Additional
Terms Schedule”);
WHEREAS,
the July Portfolio Margin Deficit still exists and the Buyer Agent has agreed,
subject to the terms hereof, to allow the Seller to pay the remaining balance
of
the July Portfolio Margin Deficit pursuant to a schedule of
payments;
WHEREAS,
AHR Capital BOA Limited (“AHR”),
a
wholly-owned subsidiary of Anthracite, is party to that certain Credit
Agreement, dated as of March 17, 2006 (as amended, restated, supplemented or
otherwise modified from time to time, the “Credit
Agreement”),
by
and among Anthracite as borrower agent (in such capacity, the “Borrower
Agent”),
AHR
as a borrower, each of the borrowers from time to time party thereto (together
with AHR, collectively, the “Borrowers”;
the
Borrowers and Anthracite, collectively, the “Anthracite
CA Parties”)
and
Bank of America, N.A. as lender (in such capacity, the “Lender”;
the
Buyers, the Buyer Agent and the Lender, collectively, the “BOA
Parties”);
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;
WHEREAS,
the Lender has agreed, subject to the terms of the CA Amendment (as defined
below), 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,
simultaneously with this Amendment, the Anthracite CA Parties and the Lender
shall execute an amendment to the Credit Agreement (the “CA
Amendment”);
WHEREAS,
the Seller has agreed to grant, pursuant to the terms of the Affiliate Security
Agreement, dated as of the date hereof (the “Affiliate
Security Agreement”),
as
collateral security for the prompt and complete payment and performance when
due
(whether at the stated maturity, by acceleration or otherwise) of the Anthracite
CA Parties’ obligations under the Credit Agreement and the other Loan Documents
(as defined in the Credit Agreement), a security interest in the
Collateral;
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 below), and (ii) Borrowers’ obligations under the
Credit Agreement, including without limitation, the Borrowers’ obligation to
make the CA Deferred Payment (as defined in the CA Amendment), a security
interest in the Collateral (as defined in the Credit Agreement);
WHEREAS,
the Seller, the Buyers and the Buyer Agent have agreed, subject to the terms
and
conditions of this Amendment, that the Repurchase Agreement shall be amended
as
set forth below.
NOW
THEREFORE, the Seller, the Buyers and the Buyer Agent 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 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
2
of Annex I 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 and
Agreement, as the same may be modified from time to time.
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“AHR”
means
AHR Capital BOA Limited.
“Amendment
and Agreement”
shall
mean that certain Amendment and Agreement, dated as of August 7, 2008, by and
among the Seller, the Buyers and the Buyer Agent.
“Asset
Attributable Loan Balances”
shall
mean the term “Asset Attributable Loan Balances” as defined in the Credit
Agreement.
“CA
Deferred Payment”
shall
mean the term “CA Deferred Payment” as defined in the Credit
Agreement.
“Credit
Agreement”
shall
mean that certain Credit Agreement, dated as of July 20, 2007, by and among
Anthracite Capital, Inc. as borrower agent, AHR as a borrower, each of the
borrowers from time to time party thereto and the Lender.
“Lender”
shall
mean Bank of America, N.A.
“Loan”
shall
mean the term “Loan” as defined in the Credit Agreement.
“Obligations”
shall
mean the term “Obligations” as defined in the Credit Agreement.
“Repo
Deferred Payment”
shall
have the meaning specified therefor in the Amendment, Agreement and
Waiver.
(c) Section
5
of Annex I is hereby amended by inserting the following new subsections in
proper numerical order:
“5.7 Notwithstanding
anything contained herein to the contrary, and in addition to any other amounts
due and payable from time to time under the Repurchase Agreement and the other
Transaction Documents, the Seller shall pay to the Buyer Agent, for the benefit
of the Buyers, the aggregate Repurchase Price for Purchased Assets as per the
Additional Terms Schedule.”
(d) Section
14.1.16(ii)(A) of the Existing Repurchase Agreement is hereby amended by
deleting it in its entirety and inserting in lieu thereof the
following:
“(A)
involves the failure to pay any matured obligation or”
(e) Schedule
1-A of Annex I to the Existing Repurchase Agreement is hereby amended by
deleting it in its entirety and inserting in lieu thereof a new Schedule 1-A,
attached hereto as Exhibit
A.
SECTION
2. Repo
Deferred Payments.
The
Seller hereby agrees to make and additional payment to the Lender as per the
Additional Terms Schedule.
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SECTION
3. Guarantor
Affirmation.
For the
avoidance of doubt, the Guarantor hereby agrees and confirms that the Repo
Deferred Payments constitute “Guaranteed Obligations” (as such term is defined
in the Guaranty).
SECTION
4. Further
Assurances.
The
Seller and Anthracite 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 Buyer Agent may
reasonably request for the purposes of implementing or effectuating the
provisions of this Amendment, the Credit Agreement, the other Loan Documents
(as
defined in the Credit Agreement), the Repurchase Agreement and the other
Transaction Documents, or of more fully perfecting or renewing the rights of
the
BOA Parties with respect to (i) the Collateral and (ii) the “Collateral”, as
defined in the Affiliate Security Agreement (or, in each case, with respect
to
any additions thereto or replacements or proceeds
thereof or with respect to any other property or assets hereafter acquired
by
the Seller or Anthracite 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 (as defined in the Credit Agreement), the Repurchase
Agreement and the other Transaction Documents which requires any consent,
approval, recording, qualification or authorization of any Governmental
Authority, the Seller and/or Anthracite 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 Seller and/or Anthracite for such governmental consent,
approval, recording, qualification or authorization.
SECTION
5. Conditions
Precedent.
This
Amendment shall become effective on the date (the “Amendment
Effective Date”)
on
which the Buyer Agent shall have received:
(a) this
Amendment, executed and delivered by a duly authorized officer of each of the
Seller and Anthracite;
(b) the
Amended and Restated 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;
(c) the
Affiliate 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;
(d) 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;
(e) the
CA
Amendment, dated as of the date hereof, duly executed by the parties thereto,
and in form and substance acceptable to the Buyer Agent in its sole
discretion;
(f) a
certificate from each of the Seller and Anthracite, substantially in the form
of
Exhibit
B
hereto,
dated as of the date hereof, executed and delivered by a duly authorized officer
thereof;
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(g) legal
opinions of US, English and Irish outside counsel to the Anthracite CA Parties
and the Seller, as applicable, which shall cover such matters incident to this
Amendment and the other documents delivered in connection herewith as the Buyer
Agent may require;
(h) a
non-refundable amendment fee payable by the Seller to the Buyer Agent, for
the
benefit of the secured parties, in an amount equal to 0.50% (50.00 basis points)
of the Facility Amount; and
(i) such
other documents as the Buyer Agent may reasonably request.
SECTION
6. Representations
and Warranties.
On and
as of the date first above written, each of the Seller and Anthracite hereby
represents and warrants to the Buyer Agent and the Buyers that (a) it is in
compliance with all the terms and provisions set forth in the Transaction
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 10 of the Repurchase
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
7. Limited
Effect.
Except
as expressly amended and modified by this Amendment, the Existing Repurchase
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
“Transaction Documents” shall be deemed to include, in any event, this
Amendment. Each reference to the Repurchase Agreement in any of the Transaction
Documents shall be deemed to be a reference to the Repurchase Agreement as
amended hereby.
SECTION
8. 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
9. Acknowledgment.
Each of
the Seller and Anthracite hereby acknowledges that neither the Buyer Agent
nor
any Buyer currently intends to extend the Termination Date of the Repurchase
Agreement to a date later than the applicable date provided under this
Amendment.
SECTION
10. GOVERNING
LAW.
THIS
AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF
THE STATE OF NEW YORK.
[SIGNATURES
FOLLOW]
-5-
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 Guarantor
By:
/s/ Xxxxxxx
Xxxx
Name:
Xxxxxxx Xxxx
Title:
President and COO
ANTHRACITE
CAPITAL BOFA FUNDING LLC,
a
Delaware limited liability company, as Seller
By: /s/
Xxxxxxx
Xxxx
Name:
Xxxxxxx Xxxx
Title:
Director and Authorized Signatory
Signature
Page to Amendment and Agreement
BANK
OF AMERICA N.A.,
as
Buyer
and as Buyer Agent
By: /s/
Xxxxxxx X.
Xxxxx
Name:
Xxxxxxx X. Xxxxx
Title:
Managing Director
BANC
OF AMERICA MORTGAGE CAPITAL CORPORATION,
as
Buyer
By: /s/
Xxxxx X.
Xxxxxxx
Name:
Xxxxx X. Xxxxxxx
Title:
Managing Director
Signature
Page to Amendment and Agreement
Exhibit
A
SCHEDULE
I-A
[Original
Purchase Percentages and Applicable Spreads]
A-1
Exhibit
B
[Officer’s
Certificate]
B-1
Schedule
1
[Additional
Terms Schedule]
S1-1
