WAIVER AND AGREEMENT
Exhibit
10.1
WAIVER
AND AGREEMENT, dated as of December 28, 2007 (this “Waiver
and
Agreement”), regarding (a) the Guaranty (as amended, restated,
supplemented or otherwise modified prior to the date hereof, the “Existing Guaranty”;
as amended hereby and as further amended, restated, supplemented or otherwise
modified and in effect from time to time, the “Guaranty”), dated
as
of March 17, 2006, 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) and (b) the Credit Agreement, dated as
of
March 17, 2006 (as amended, restated, supplemented or otherwise modified prior
to the date hereof, 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”)
among AHR CAPITAL BOFA LIMITED, a limited company organized under the laws
of
Ireland, as a borrower, Anthracite as the borrower agent (the “Borrower Agent”), the
other borrowers from time to time party thereto and the
Lender. Capitalized terms used but not otherwise defined herein shall
have the meanings given to them in the Guaranty or the Credit Agreement, as
applicable.
RECITALS
WHEREAS,
as a condition to the Credit Agreement, the Guarantor has executed the
Guaranty;
WHEREAS,
the Guarantor has notified the Lender that the Guarantor may not be in
compliance with Section 10(a) of the Guaranty (Maintenance of Tangible Net
Worth) at December 31, 2007 and has requested that the Lender waive compliance
with Section 10(a) of the Guaranty at such date;
WHEREAS,
the Guarantor has further notified the Lender that the Guarantor may elect
the
“fair value option” for valuing financial assets and liabilities under and
pursuant to Statement of Financial Accounting Standards No. 159 beginning on
or
after January 1, 2008 (the “FAS 159
Election”);
WHEREAS,
the Lender is prepared to grant the requested waiver, provided that (i) the
Lender shall not be committed to make any additional Loans from and after the
Waiver Effective Date (as defined below) until the Lender notifies the Borrower
that additional Loans may be made and (ii) the provisions of Section 10 of
the
Guaranty (Covenants) are amended in a manner acceptable to the Lender prior
to
March 31, 2008 to take into account the effect of the FAS 159 Election in a
manner acceptable to the Lender, or if the provisions of Section 10 of the
Guaranty are not so amended, the provisions of Section 10 of the Guaranty shall
continue to apply as if the FAS 159 Election had not been made; and
WHEREAS,
the Lender agrees to waive compliance with the requirements of Section 10(a)
of
the Guaranty solely upon the terms and conditions provided for in this Waiver
and Agreement;
NOW
THEREFORE, in consideration of the premises and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the
parties hereto agree as follows:
SECTION
1. Waiver
of Section 10(a)
(Maintenance of Tangible Net Worth). Solely with respect to
the obligation of the Guarantor to satisfy the requirements of Section 10(a)
of
the Guaranty at December 31, 2007, the Lender hereby waives compliance with
the
requirement of Section 10(a) of the Guaranty.
SECTION
2. Agreement.
(a) Until
such time as the Lender notifies the Borrower and the Guarantor that the
Borrower may request additional Loans, the Lender shall not be committed to
make
any new Loans to the Borrower.
(b) Unless
the provisions of Section 10 of the Guaranty (Covenants) are amended in a manner
acceptable to the Lender prior to March 31, 2008 to take into account the effect
of the FAS 159 Election in a manner acceptable to the Lender, the provisions
of
Section 10 of the Guaranty shall continue to apply as if the FAS 159 Election
had not been made.
SECTION
3. Conditions
Precedent. This Waiver and Agreement shall become effective on
the date (the “Waiver
Effective Date”) on which the following conditions precedent shall have
been satisfied:
(a) the
Lender shall have received this Waiver and Agreement, executed and delivered
by
a duly authorized officer of the Guarantor, the Borrowers and the Lender;
and
(b) each
of the representations and warranties made and restated by the Guarantor and
the
Borrowers pursuant to Section 4 of this Waiver and Agreement shall be true
and complete 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
4. Representations
and
Warranties. On and as of the date first above written, each of the
Guarantor and the Borrowers hereby represents and warrants to the Lender that,
after giving effect to this Waiver and Agreement (a) it is in compliance with
all the terms and provisions set forth in the Loan Documents 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
9 of
the Guaranty 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).
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SECTION
5. Limited
Effect.
Except as expressly amended and modified by this Waiver and Agreement, each
of
the Existing Guaranty and 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 Waiver Effective Date, all references therein and herein to the “Loan
Documents” shall be deemed to include, in any event, this Waiver and
Agreement. Each reference to the Guaranty and/or the Credit Agreement
in any of the Loan Documents shall be deemed to be a reference to the Guaranty
and/or the Credit Agreement as amended hereby.
SECTION
6. Counterparts. This
Waiver and 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 Waiver and Agreement
in
Portable Document Format (PDF) or by facsimile transmission shall be effective
as delivery of a manually executed original counterpart thereof.
SECTION
7. GOVERNING
LAW. THIS WAIVER AND AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
[SIGNATURES
FOLLOW]
-3-
IN
WITNESS WHEREOF, the parties hereto have caused this Waiver and Agreement to
be
duly executed and delivered as of the day and year first above
written.
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ANTHRACITE
CAPITAL,
INC., a Maryland corporation, as Guarantor and Borrower
Agent
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By:
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/s/
Xxxxxxx Xxxx
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Name:
Xxxxxxx Xxxx
Title:
President and Chief Operating Officer
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SIGNED,
SEALED AND DELIVERED
by
the
duly authorised attorney of
AHR
CAPITAL BOFA LIMITED, as Borrower, in the presence
of:
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By:
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/s/
Xxxxxxx Xxxx
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Name:
Xxxxxxx Xxxx
Title:
Director
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BANK
OF AMERICA N.A., as
Lender
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By:
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/s/
Xxxxxxx X. Xxxxx
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Name: Xxxxxxx
X. Xxxxx
Title:
Managing Director
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