AMENDED AND RESTATED PARENT GUARANTY
Exhibit
10.4
AMENDED
AND RESTATED
This
AMENDED AND RESTATED PARENT GUARANTY, dated as of August 7, 2008 (as
amended, restated, supplemented or otherwise modified from time to time, this
“Guaranty”),
is
executed by ANTHRACITE CAPITAL INC. (“Anthracite”)
as
guarantor (the “Guarantor”),
in
favor of BANK OF AMERICA, N.A., as the lender (the “Lender”)
under
the Credit Agreement (as defined below).
RECITALS
WHEREAS,
Anthracite is party to that certain Credit Agreement, dated as of March
17, 2006 (as amended, supplemented or otherwise modified prior to the date
hereof, the “Existing
Credit Agreement”;
as
amended by the Amendment, Agreement and Waiver, dated as of the date hereof
(the
“Amendment”)
and as
further amended, supplemented or otherwise modified from time to time, the
“Credit
Agreement”)
among
AHR Capital BofA Limited, a limited company organized under the laws of Ireland
(“AHR
Capital”)
as a
borrower (a “Borrower”),
Anthracite as the borrower agent (the “Borrower
Agent”),
the
borrowers from time to time party thereto (each a “Borrower”
and
together with AHR Capital, collectively, the “Borrowers”))
and
the Lender;
WHEREAS,
in connection with the Existing Credit Agreement, the Guarantor executed and
delivered that certain Parent Guaranty, dated as of March 17, 2006 (as amended,
restated, supplemented or otherwise modified prior to the date hereof, the
“Existing
Guaranty”);
WHEREAS,
the Borrowers, the Borrower Agent and the Lender have amended the Existing
Credit Agreement pursuant to the Amendment;
WHEREAS,
the Guarantor owns directly all of the issued and outstanding Capital Stock
of
AHR Capital; and
WHEREAS,
it is a requirement under the Amendment that the Existing Guaranty be amended
and restated as provided herein and it is a condition precedent to the
effectiveness of the Amendment that the Guarantor shall have executed and
delivered this Guaranty to the Lender;
NOW,
THEREFORE, in consideration of the premises and to induce the Lender to enter
into the Amendment, the Guarantor hereby agrees with the Lender, as
follows:
1. Defined
Terms.
(a) Unless
otherwise defined in Section 1(d) below, or elsewhere in this Guaranty,
capitalized terms used in this Guaranty shall have the meanings ascribed to
such
terms in the Credit Agreement.
(b) The
words
“hereof,” “herein” and “hereunder” and words of similar import when used in this
Guaranty shall refer to this Guaranty as a whole and not to any particular
provision of this Guaranty, and section and paragraph references are to this
Guaranty unless otherwise specified.
(c) The
meanings given to terms defined herein shall be equally applicable to both
the
singular and plural forms of such terms.
(d) As
used
herein, the following terms shall have the following meanings:
“Adjusted
Net Income”
shall
mean for any period, the Net Income of the Guarantor and its Subsidiaries
determined on a cash basis for such period without recognizing any trading
portfolio gains or losses in general, and specifically without giving effect
to:
(a)
depreciation and amortization,
(b)
gains
or losses that are classified as “extraordinary” in accordance with
GAAP,
(c)
capital gains or losses on sales of real estate,
(d)
capital gains or losses with respect to the disposition of investments in
marketable securities,
(e)
any
provision/benefit for income taxes for such period,
(f)
earnings from equity investments and unconsolidated joint ventures determined
in
accordance with GAAP,
(g)
losses attributable to the impairment of assets,
(h)
incentive fees paid in the form of the issuance of the Guarantor’s common
stock,
(i)
Cash
Interest Expense,
(j)
income or expense attributable to the ineffectiveness of hedging transactions,
and
(k)
interest accretions, whether in favor or against the Guarantor.
Without
limiting the foregoing, Net Income shall be determined before preferred stock
dividends and shall include cash distributions from equity investments and
unconsolidated joint ventures.
“Cash
Interest Expense”
shall
mean for any period, total interest expense, both expensed and capitalized,
of
Guarantor and its Subsidiaries for such period with respect to all outstanding
recourse Indebtedness of Guarantor and its Subsidiaries (including, without
limitation, all commissions, discounts and other fees and charges owed with
respect to letter of credit and bankers’ acceptance financing and net costs
under interest rate protection agreements), determined on a consolidated cash
basis, for such period (determined on a consolidated cash basis), and net of
any
interest accretions, whether in favor or against, with respect to
debt.
“Committed
Facility”
shall
mean a credit facility under which Guarantor is a borrower and a party
acceptable to the Lender is lender, whereby (i) the lender thereunder is
unconditionally committed to make advances to Guarantor upon request by
Guarantor (other than any conditions acceptable to Lender); (ii) no event of
default (or event which with notice or the passage of time, or both, would
constitute an event of default) has occurred thereunder; and (iii) the period
where such advances may be requested expires more than ninety (90) days from
the
date of determination.
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“Debt
Service Coverage Ratio”
or
“DSCR”
shall
mean the ratio of Adjusted Net Income to Cash Interest Expense on recourse
Indebtedness outstanding, it being understood that such determination shall
be
made on a cash basis.
“Intangible
Assets”
shall
mean the excess of the cost over book value of assets acquired, patents,
trademarks, trade names, copyrights, franchises and other intangible assets
(excluding in any event the value of any residual securities).
“Xxxx-to-Market
Indebtedness”
shall
mean the portion of Total Indebtedness of Anthracite (which may be all of such
Indebtedness) where the terms thereunder permit the holder thereof to make
a
margin call, accelerate all or part of such Indebtedness and/or request the
repayment in full or in part prior to the applicable maturity date based on
changes in the market value of the collateral securing such
Indebtedness.
“Marketable
Securities”
means
any of the following:
(a) 100%
of
the market value of negotiable debt obligations issued by the U.S. Treasury
Department having a remaining maturity of less than 1 year; or
(b) 95%
of
the market value of negotiable debt obligations issued by the U.S. Treasury
Department having a remaining maturity of 1-10 years; or
(c) 90%
of
the market value of negotiable debt obligations issued by the U.S. Treasury
Department having a remaining maturity of more than 10 years; or
(d) 90%
of
the market value of single-class mortgage participation certificates
(“FHLMC
Certificates”)
in
book-entry form backed by single-family residential mortgage loans, the full
and
timely payment of interest at the applicable certificate rate and the ultimate
collection of principal of which are guaranteed by the Federal Home Loan
Mortgage Corporation (excluding Real Estate Mortgage Investment Conduit
(“REMIC”)
or
other multi-class pass-through certificates, collateralized mortgage
obligations, pass-through certificates backed by adjustable rate mortgages,
securities paying interest or principal only and similar derivative securities);
or
(e) 90%
of
the market value of single-class mortgage pass-through certificates
(“FNMA
Certificates”)
in
book-entry form backed by single-family residential mortgage loans, the full
and
timely payment of interest at the applicable certificate rate and ultimate
collection of principal of which are guaranteed by the Federal National Mortgage
Association (excluding REMIC or other multi-class pass-through certificates,
pass-through certificates backed by adjustable rate mortgages collateralized
mortgage obligations, securities paying interest or principal only and similar
derivative securities); or
(f) 90%
of
the market value of single-class fully modified pass-through certificates
(“GNMA
Certificates”
in
book-entry form backed by single-family residential mortgage loans, the full
and
timely payment of principal and interest of which is guaranteed by the
Government National Mortgage Association (excluding REMIC or other multi-class
pass-through certificates, collateralized mortgage obligations, pass-through
certificates backed by adjustable rate mortgages, securities paying interest
or
principal only and similar derivatives securities); or
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(g) 85%
of
all actively and regularly traded investment-grade residential mortgage-backed
securities; or
(h) such
other collateral as Guarantor and Lender may agree, with such valuation
percentage applied thereto as Lender, in its sole discretion acting in good
faith shall deem appropriate.
“Net
Income”
shall
mean for any period and for Anthracite and its consolidated Subsidiaries, the
consolidated net income (or loss) of Anthracite and its consolidated
Subsidiaries for such period as determined on a consolidated basis in accordance
with GAAP as adjusted in accordance with the terms hereof.
“Non-Recourse
Indebtedness”
shall
mean, with respect to any Person, Indebtedness for borrowed money in respect
of
which recourse for payment (except for customary exceptions for fraud,
misapplication of funds, environmental indemnities, and other customary
exceptions to non-recourse provisions) is contractually limited to specific
assets of such Person encumbered by a Lien securing such
Indebtedness.
“Tangible
Net Worth”
shall
mean, as of a particular date, (i) all amounts that would be included under
stockholder’s equity on a balance sheet of Anthracite and its consolidated
Subsidiaries at such date, determined in accordance with GAAP, less
(ii) the
sum of (A) amounts owing to Anthracite and its consolidated Subsidiaries
from Affiliates and (B) Intangible Assets of Anthracite and its
consolidated Subsidiaries.
“Tangible
Net Worth Ratio”
shall
have the meaning provided in Section
11(b)
of this
Guaranty.
“Total
Indebtedness”
shall
mean for any period, the aggregate Indebtedness (excepting any Non-Recourse
Indebtedness) of Anthracite and its consolidated Subsidiaries during such
period.
2. Guaranty.
(a) The
Guarantor, as guarantor of payment and performance and not merely as surety
or
guarantor of collection, hereby, unconditionally and irrevocably, guarantees
to
the Lender and its successors and permitted assigns, the prompt and complete
payment and performance by each Borrower when due (whether at the stated
maturity, by acceleration or otherwise) of all Obligations of such Borrower
under the Credit Agreement and the other Loan Documents (the “Guaranteed
Obligations”);
provided,
that
the Guaranteed Obligations shall not at any time be reduced by operation of
Section 10.18 of the Credit Agreement.
(b) The
Guarantor further agrees to pay any and all expenses (including, without
limitation, all fees and disbursements of external counsel) which may be paid
or
incurred by the Lender in enforcing any rights with respect to, or collecting,
any or all of the Guaranteed Obligations and/or enforcing any rights with
respect to, or collecting against, the Guarantor under this Guaranty, the Parent
Pledge Agreement or the Parent Deed of Charge. This Guaranty shall remain in
full force and effect until the Obligations are paid in full and the obligation
of the Lender to make Loans under the Credit Agreement shall be terminated,
notwithstanding that from time to time prior thereto each Borrower may be free
from any Obligations.
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(c) The
Guarantor agrees that the Guaranteed Obligations may at any time and from time
to time exceed the amount of the liability of such Guarantor hereunder without
impairing this Guaranty or affecting the rights and remedies of the Lender
hereunder.
(d) No
payment or payments made by any Borrower, the Guarantor, any other guarantor
or
any other Person or received or collected by the Lender from any Borrower,
the
Guarantor, any other guarantor or any other Person by virtue of any action
or
proceeding or any set-off or appropriation or application at any time or from
time to time in reduction of or in payment of the Obligations shall be deemed
to
modify, reduce, release or otherwise affect the liability of the Guarantor
hereunder which shall, notwithstanding any such payment or payments other than
payments made by the Guarantor in respect of the Obligations or payments
received or collected from the Guarantor in respect of the Obligations, remain
liable for the Guaranteed Obligations up to the maximum liability of the
Guarantor hereunder until the Obligations are paid in full and the obligation
of
the Lender to make Loans under the Credit Agreement shall be
terminated.
(e) The
Guarantor agrees that whenever, at any time, or from time to time, it shall
make
any payment to the Lender on account of its liability hereunder, it will notify
the Lender in writing that such payment is made under this Guaranty for such
purpose.
3. Deferral
of Subrogation.
Notwithstanding any payment or payments made by the Guarantor hereunder or
any
set-off or application of funds of the Guarantor by the Lender, the Guarantor
shall not be entitled to be subrogated to any of the rights of the Lender
against any Borrower or any other guarantor or any collateral security or
guarantee or right of offset held by the Lender for the payment of the
Obligations, nor shall the Guarantor seek or be entitled to seek any
contribution or reimbursement from any Borrower or any other guarantor in
respect of payments made by the Guarantor hereunder, until all amounts owing
to
the Lender by each Borrower on account of the Obligations are paid in full
and
the obligation of the Lender to make Loans under the Credit Agreement shall
be
terminated. If any amount shall be paid to the Guarantor on account of such
subrogation rights at any time when all of the Obligations shall not have been
paid in full and the obligation of the Lender to make Loans under the Credit
Agreement shall be terminated, such amount shall be held by the Guarantor in
trust for the Lender, segregated from other funds of the Guarantor, and shall,
forthwith upon receipt by the Guarantor, be turned over to the Lender, to be
applied against the Obligations, whether matured or unmatured, in such order
as
the Lender may determine.
4. Amendments,
etc. with respect to the Obligations; Waiver of Rights.
The
Guarantor shall remain obligated hereunder notwithstanding that, without any
reservation of rights against the Guarantor and without notice to or further
assent by the Guarantor, any demand for payment of any of the Obligations made
by the Lender may be rescinded by such party and any of the Obligations
continued, and the Obligations, or the liability of any other party upon or
for
any part thereof, or any collateral security or guarantee therefor or right
of
offset with respect thereto, may, from time to time, in whole or in part, be
renewed, extended, amended, modified, accelerated, compromised, waived,
surrendered or released by the Lender, and the Credit Agreement, the Notes
and
the other Loan Documents and any other documents executed and delivered in
connection therewith may be amended, modified, supplemented or terminated,
in
whole or in part, as the Lender may deem advisable from time to time, and any
collateral security, guarantee or right of offset at any time held by the Lender
for the payment of the Obligations may be sold, exchanged, waived, surrendered
or released. The Lender shall have no obligation to protect, secure, perfect
or
insure any Lien at any time held by it as security for the Obligations or for
this Guaranty or any property subject thereto. When making any demand hereunder
against the Guarantor, the Lender may, but shall be under no obligation to,
make
a similar demand on each Borrower or any other guarantor, and any failure by
the
Lender to make any such demand or to collect any payments from each Borrower
or
any such other guarantor or any release of any Borrower or such other guarantor
shall not relieve the Guarantor of its obligations or liabilities hereunder,
and
shall not impair or affect the rights and remedies, express or implied, or
as a
matter of law, of the Lender against the Guarantor. For the purposes hereof
“demand” shall include the commencement and continuance of any legal
proceedings.
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5. Guaranty
Absolute and Unconditional.
The
Guarantor waives any and all notice of the creation, renewal, extension or
accrual of any of the Obligations and notice of or proof of reliance by the
Lender upon this Guaranty or acceptance of this Guaranty, the Obligations,
and
any of them, shall conclusively be deemed to have been created, contracted
or
incurred, or renewed, extended, amended or waived, in reliance upon this
Guaranty; and all dealings between each Borrower and the Guarantor, on the
one
hand, and the Lender, on the other hand, likewise shall be conclusively presumed
to have been had or consummated in reliance upon this Guaranty. The Guarantor
waives diligence, presentment, protest, demand for payment and notice of default
or nonpayment to or upon each Borrower or the Guarantor with respect to the
Obligations. The Guarantor understands and agrees that this Guaranty shall
be
construed as a continuing, absolute and unconditional guarantee of payment
without regard to (a) the validity, regularity or enforceability of the Credit
Agreement, any Note or any other Loan Document, any of the Obligations or any
other collateral security therefor or guarantee or right of offset with respect
thereto at any time or from time to time held by the Lender, (b) any defense,
set-off or counterclaim (other than a defense of payment or performance) which
may at any time be available to or be asserted by any Borrower against the
Lender, or (c) any other circumstance whatsoever (with or without notice to
or
knowledge of each Borrower or the Guarantor) which constitutes, or might be
construed to constitute, an equitable or legal discharge of any Borrower for
the
Obligations, or of the Guarantor under this Guaranty, in bankruptcy or in any
other instance. When pursuing its rights and remedies hereunder against the
Guarantor, the Lender may, but shall be under no obligation to, pursue such
rights and remedies as it may have against any Borrower or any other Person
or
against any collateral security or guarantee for the Obligations or any right
of
offset with respect thereto, and any failure by the Lender to pursue such other
rights or remedies or to collect any payments from any Borrower or any such
other Person or to realize upon any such collateral security or guarantee or
to
exercise any such right of offset, or any release of a Borrower or any such
other Person or any such collateral security, guarantee or right of offset,
shall not relieve the Guarantor of any liability hereunder, and shall not impair
or affect the rights and remedies, whether express, implied or available as
a
matter of law, of the Lender against the Guarantor. This Guaranty shall remain
in full force and effect and be binding in accordance with and to the extent
of
its terms upon the Guarantor and the successors and assigns thereof, and shall
inure to be benefit of the Lender, and its successors and permitted assigns,
until all the Obligations and the Guaranteed Obligations shall have been
satisfied by payment in full and the obligation of the Lender to make Loans
under the Credit Agreement shall be terminated, notwithstanding that from time
to time during the term of the Credit Agreement each Borrower may be free from
any Obligations.
6. Reinstatement.
This
Guaranty shall continue to be effective, or be reinstated, as the case may
be,
if at any time payment, or any part thereof, of any of the Obligations is
rescinded or must otherwise be restored or returned by the Lender upon the
insolvency, bankruptcy, dissolution, liquidation or reorganization of any
Borrower or the Guarantor, or upon or as a result of the appointment of a
receiver, intervenor or conservator of, or trustee or similar officer for,
any
Borrower or the Guarantor or any substantial part of its property, or otherwise,
all as though such payments had not been made.
7. Not
Affected by Bankruptcy.
Notwithstanding any modification, discharge or extension of the Obligations
or
any amendment, modification, stay or cure of the Lender's rights that may occur
in any bankruptcy or reorganization case or proceeding against any Borrower,
whether permanent or temporary, and whether or not assented to by the Lender,
the Guarantor hereby agrees that it shall be obligated hereunder to pay and
perform the Guaranteed Obligations and discharge its other obligations in
accordance with the terms of the Guaranteed Obligations and the terms of this
Guaranty. The Guarantor understands and acknowledges that, by virtue of this
Guaranty, it has specifically assumed any and all risks of a bankruptcy or
reorganization case or proceeding with respect to any Borrower. Without in
any
way limiting the generality of the foregoing, any subsequent modification of
the
Obligations in any reorganization case concerning such Borrower shall not affect
the obligation of the Guarantor to pay and perform the Guaranteed Obligations
in
accordance with the original terms thereof.
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8. Payments.
The
Guarantor hereby guarantees that payments hereunder will be paid to the Lender
without set-off or counterclaim in U.S. Dollars at the office of the Lender
specified in Section 10.02 of the Credit Agreement.
9. Representations
and Warranties.
The
Guarantor hereby represents and warrants that:
(a) The
representations and warranties contained in Section 5 of the Credit Agreement,
insofar as the representations and warranties contained therein are applicable
to the Guarantor, are true and correct in all material respects (each such
representation and warranty set forth in such Section (insofar as applicable
as
aforesaid) and all other terms of the Credit Agreement to which reference is
made therein, together with all related definitions and ancillary provisions,
being hereby incorporated into this Guaranty by this reference as though
specifically set forth in this Section); and
(b) The
Guarantor agrees that the foregoing representations and warranties shall be
deemed to have been made by the Guarantor on the date of each borrowing by
any
Borrower under the Credit Agreement as though made hereunder on and as of such
date.
10. Covenants.
The
Guarantor hereby covenants and agrees with the Lender that, so long as any
Loan
is outstanding and until payment in full of all Obligations:
(a) Maintenance
of Tangible Net Worth. Tangible
Net Worth at the end of each fiscal quarter shall not be less than the sum
of
(i) $400,000,000, plus,
(ii) an
amount equal to 75% of any Equity Proceeds received by the Guarantor on or
after
July
20,
2007;
(b) Maintenance
of Ratio of Total Indebtedness to Tangible Net Worth.
The
ratio of Total Indebtedness to Tangible Net Worth (the “Tangible
Net Worth Ratio”)
at the
end of each fiscal quarter shall not be greater than 3.0:1.0;
(c) Changes
in Tangible Net Worth.
On any
date, 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;
(d) Minimum
DSCR.
DSCR at
the end of each fiscal quarter shall not be less than 1.40:1.0;
(e) Minimum
Liquidity.
As of
any date, the sum of the Guarantor’s (x) cash, (y) Marketable Securities, and
(z) subject to the following proviso, availability under any Committed Facility
that is unrestricted and not subject to Liens, to be less than 5.0% of the
Guarantor’s Indebtedness which is subject to xxxx-to-market provisions;
provided,
however¸ that the maximum amount of availability under any Committed Facility
that is unrestricted and not subject to Liens that may be included for purposes
of satisfying the requirements of this Section 10(e) shall not exceed 1.25%
of
the Guarantor’s Indebtedness which is subject to xxxx-to-market
provisions;
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(f) Net
Income.
For any
period of two consecutive fiscal quarters, Guarantor’s Net Income shall not be
less than $1.00; and
(g) Borrower
Compliance.
The
Guarantor shall, or shall cause each Borrower to, as applicable, comply with
the
requirements of Section 6.01 of the Credit Agreement and the other provisions
of
the Credit Agreement[;
provided,
that
compliance with clauses (a) through (f) 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 the date hereof.]
11. Notices.
All
notices, requests and demands to or upon the Lender or the Guarantor to be
effective shall be in writing (or by telex, fax or similar electronic transfer
confirmed in writing) and shall be deemed to have been duly given or made (i)
when delivered by hand or (ii) if given by mail, when deposited in the mails
by
certified mail, return receipt requested, or (iii) if by telex, fax or similar
electronic transfer, when sent and receipt has been confirmed, addressed as
follows:
(a) if
to the
Lender, at its address or transmission number for notices provided in
Section 10.02 of the Credit Agreement; and
(b) if
to the
Guarantor, at its address or transmission number for notices set forth under
its
signature below.
Each
of
the Lender and the Guarantor may change its address and transmission number
for
notices by notice in the manner provided in this Section.
12. Severability.
Any
provision of this Guaranty that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in
any
other jurisdiction.
13. Integration.
This
Guaranty represents the agreement of the Guarantor with respect to the subject
matter hereof and there are no promises or representations by the Lender
relative to the subject matter hereof not reflected herein.
14. Amendments
in Writing; No Waiver; Cumulative Remedies.
(a) None
of
the terms or provisions of this Guaranty may be waived, amended, supplemented
or
otherwise modified except as provided by Section 10.04 of the Credit Agreement.
(b) The
Lender shall not by any act (except by a written instrument pursuant to
Section
15(a)
hereof),
delay, indulgence, omission or otherwise be deemed to have waived any right
or
remedy hereunder or to have acquiesced in any default or Event of Default or
in
any breach of any of the terms and conditions hereof. No failure to exercise,
nor any delay in exercising, on the part of the Lender, any right, power or
privilege hereunder shall operate as a waiver thereof. No single or partial
exercise of any right, power or privilege hereunder shall preclude any other
or
further exercise thereof or the exercise of any other right, power or privilege.
A waiver by the Lender of any right or remedy hereunder on any one occasion
shall not be construed as a bar to any right or remedy which the Lender would
otherwise have on any future occasion.
-8-
The
rights and remedies herein provided are cumulative, may be exercised singly
or
concurrently and are not exclusive of any other rights or remedies provided
by
law.
15. Section
Headings.
The
section headings used in this Guaranty are for convenience of reference only
and
are not to affect the construction hereof or be taken into consideration in
the
interpretation hereof.
16. Successors
and Assigns.
This
Guaranty shall be binding upon the successors and assigns of the Guarantor
and
shall inure to the benefit of the Lender and its successors and
assigns.
17. GOVERNING
LAW.
THIS
GUARANTY SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH,
THE LAW OF THE STATE OF NEW YORK.
18. Submission
To Jurisdiction; Waivers.
The
Guarantor hereby irrevocably and unconditionally:
(a) SUBMITS
FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS
GUARANTY, AND THE OTHER LOAN DOCUMENTS, OR FOR RECOGNITION AND ENFORCEMENT
OF
ANY JUDGMENT IN RESPECT THEREOF, TO THE NON-EXCLUSIVE GENERAL JURISDICTION
OF
THE COURTS OF THE STATE OF NEW YORK, THE FEDERAL COURTS OF THE UNITED STATES
OF
AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK, AND APPELLATE COURTS FROM ANY
THEREOF;
(b) CONSENTS
THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT IN SUCH COURTS AND, TO THE
EXTENT PERMITTED BY LAW, WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER
HAVE
TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH
ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT COURT AND AGREES NOT TO
PLEAD OR CLAIM THE SAME;
(c) AGREES
THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING MAY BE EFFECTED BY
MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL (OR ANY SUBSTANTIALLY
SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO ITS ADDRESS SET FORTH UNDER ITS
SIGNATURE BELOW OR AT SUCH OTHER ADDRESS OF WHICH THE LENDER SHALL HAVE BEEN
NOTIFIED; AND;
(d) AGREES
THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT SERVICE OF PROCESS IN
ANY
OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT TO XXX IN ANY OTHER
JURISDICTION.
19. WAIVER
OF JURY TRIAL.
THE
GUARANTOR HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTY OR ANY OTHER
LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
20. Acknowledgments.
The
Guarantor hereby acknowledges that:
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(a) it
has
been advised by counsel in the negotiation, execution and delivery of this
Guaranty and the other Loan Documents to which it is a party;
(b) the
Lender has no fiduciary relationship with or duty to the Guarantor arising
out
of or in connection with this Guaranty or any of the other Loan Documents to
which it is a party, and the relationship between the Guarantor and each
Borrower, on one hand, and the Lender, on the other hand, in connection herewith
or therewith is solely that of debtor and creditor; and
(c) no
joint
venture is created hereby or by the other Loan Documents or otherwise exists
by
virtue of the transactions contemplated hereby among the Guarantor, any Borrower
and the Lender.
(d) Effect
of Amendment and Restatement.
As of
the date hereof, the Existing Guaranty shall be amended, restated and superseded
in its entirety. Each reference to the Existing Guaranty in any Loan Document
shall be deemed to be a reference to this Guaranty.
[SIGNATURES
FOLLOW]
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IN
WITNESS WHEREOF, the undersigned has caused this Guaranty to be duly executed
and delivered by its duly authorized officer as of the day and year first above
written.
ANTHRACITE
CAPITAL, INC.
By: /s/
Xxxxxxx
Xxxx
Title:
President and
COO
Address
for Notices:
00
Xxxx
00xx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxxxx Xxxx
Telecopier
No.: (000) 000-0000
Telephone
No.: (000) 000-0000
and
Anthracite
Capital, Inc.
Xxx
XXX
Xxxxx, 00xx
Xxxxx
Xxxxxxxx
X0-X0XX-00-0
000
Xxxxx
Xxxxxx
Xxxxxxxxxx,
XX 00000
Attention:
Xxxxxx Xx Xxxxx
Telecopier
No.: (000) 000-0000
Telephone
No.: (000) 000-0000
Amended
and Restated Parent Guaranty Signature Page
