Exhibit 10.1a
AMENDMENT NO. 1 TO PARENT GUARANTY
AMENDMENT NO. 1, dated as of February 23, 2007 (this
“ First Amendment
”), to the Parent 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). Capitalized terms used but not
otherwise defined herein shall have the meanings given to them in
the Guaranty.
RECITALS
WHEREAS, the Guarantor 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
“ 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 other borrowers from time to
time party thereto and the Lender;
WHEREAS, as a condition to the Credit Agreement, the
Guarantor has executed the Guaranty;
WHEREAS, the Guarantor and the Lender desire to
amend the Guaranty in the manner and on the terms set forth
herein;
NOW THEREFORE, the Guarantor and the Lender hereby
agree, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, that the Existing Guaranty is hereby amended
as follows:
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SECTION 1.
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Amendments . The
Existing Guaranty is hereby amended by:
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(a) deleting the
definition of “Adjusted Net Income” in its entirety and
substituting the following in lieu thereof:
“ 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.
(b)
deleting the definition of “Debt Service
Coverage Ratio” in