FIRST AMENDMENT TO AMENDED AND RESTATED PARENT GUARANTY AND INDEMNITY
FIRST
AMENDMENT
TO
AMENDED
AND RESTATED PARENT GUARANTY AND INDEMNITY
THIS FIRST AMENDMENT TO AMENDED AND
RESTATED PARENT GUARANTY AND INDEMNITY dated as of April 14, 2008 (this “Agreement”), by and
among:
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(a)
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ANTHRACITE
CAPITAL, INC., a Maryland corporation (“Guarantor”);
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(b)
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XXXXXX
XXXXXXX MORTGAGE SERVICING LTD. (“Security
Trustee”), as security trustee under the Loan Agreement
(hereinafter defined); and
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(c)
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XXXXXX
XXXXXXX PRINCIPAL FUNDING, INC., a Delaware corporation (“Agent”).
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RECITALS
A.
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WHEREAS,
AHR Capital MS Limited, a company incorporated in the Republic of Ireland
with Company Number 411989 (“Borrower”),
Security Trustee, Agent and the other parties thereto are party to that
certain Second Amended and Restated Multicurrency Revolving Facility
Agreement dated as of February 15, 2008 (the “Loan
Agreement”).
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B.
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WHEREAS,
pursuant to that certain Amended and Restated Parent Guaranty and
Indemnity dated as of February 15, 2008 (the “Original
Guaranty”), made by Guarantor in favor of Security Trustee and
Agent, Guarantor, among other things, guaranteed the obligations of
Borrower under the Loan Agreement.
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C.
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Guarantor,
Security Trustee and Agent wish to modify certain terms and provisions of
the Original Guaranty (as herein amended, the “Guaranty”).
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NOW THEREFORE, in
consideration of the mutual premises and mutual obligations set forth herein and
for other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, Guarantor, Security Trustee and Agent hereby agree as
follows:
1. Amendment. As and
from the date of the Original Guaranty:
1.1 Definitions. Section 1 of the
Original Guaranty is hereby amended as follows:
a. The
term “Liquid
Assets” is hereby deleted in its entirety and the following shall be
substituted therefor:
“Liquid Assets” shall
mean (i) cash, United States Treasury Bills, securities issued by an agency of,
and guaranteed by, the United States of America, in each case, that is
unrestricted and not subject to Liens; and (ii) availability under any Committed
Facility that is unrestricted and not subject to Liens, but only to the extent
that the items described in (i) above are equal to or greater than seventy-five
percent (75%) of the sum of the items described in (i) and such
availability.
b. By
adding the following term:
“Committed Facility”
shall mean a credit facility under which Guarantor is a borrower and a party
reasonably acceptable to Agent and Security Trustee is lender, whereby (i) the
lender thereunder is unconditionally committed to make advances to Guarantor
upon request by Guarantor (other than any conditions reasonably acceptable to
Agent and Security Trustee); (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.
2. Representations and
Warranties. Guarantor hereby makes to Agent and Security Trustee the
representations and warranties set forth in the Original Guaranty. Such
representations and warranties are true and correct as though made on and as of
the date hereof and after giving effect to this Agreement.
3. Continuing Effect. As
modified by this Agreement, all of the terms of the Guaranty are in full force
and effect. Each and all references to the Guaranty in the Loan
Documents (as defined in the Loan Agreement) shall mean the Original Guaranty as
amended hereby.
4. Ratification, Confirmation
and Assumption. Guarantor hereby (i) ratifies and confirms all of
the obligations of Guarantor under the Original Guaranty (as amended hereby);
and (ii) represents, warrants and covenants that, as of the date hereof,
Guarantor has no knowledge of any cause of action at law or in equity against
Agent, Security Trustee any lender under the Loan Agreement or any of their
respective Affiliates (including, without limitation, any offset, defense,
deduction or counterclaim) with respect to any of such
obligations.
5. Binding Effect; No Waiver;
No Partnership. The provisions of the Original Guaranty as amended hereby
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns. Nothing herein contained
shall be deemed or construed (a) to constitute a waiver of any right of
Agent and/or Security Trustee Lender under the Loan Documents, or (b) to
create a partnership or joint venture between any of the parties
hereto.
6. Further Agreements.
Guarantor agrees to execute and deliver such additional documents, instruments
or agreements as may be reasonably requested by Agent and/or Security Trustee
and as may be necessary or appropriate to effectuate the purposes of this
Agreement.
7. 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.
8. GOVERNING
LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT REFERENCE TO THE
CHOICE OF LAW PROVISIONS THEREOF.
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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.
GUARANTOR
ANTHRACITE
CAPITAL, INC.
a
Maryland corporation
By:
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/s/
Xxxxx Xxxxxx
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Name:
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Xxxxx
Xxxxxx
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Title:
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CEO
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AGENT
XXXXXX
XXXXXXX PRINCIPAL FUNDING INC.,
a
Delaware corporation
By:
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/s/
Xxxxxxx Xxxxxxx
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Name:
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Xxxxxxx
Xxxxxxx
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Title:
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Vice
President
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SECURITY
TRUSTEE
XXXXXX
XXXXXXX MORTGAGE SERVICING LTD.
By:
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/s/
Xxxxxxx Xxxxxxxxx
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Name:
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Xxxxxxx
Xxxxxxxxx
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Title:
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Director
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