AMENDMENT NO. 2 TO GUARANTY
AMENDMENT NO. 2 TO GUARANTY, dated as of July 8, 2008 (this “
Amendment
”), by and between ANTHRACITE CAPITAL, INC., a Maryland
corporation whose address is 40 East 52 nd
Street, New York, New York 10022 (collectively, “
Guarantor
”) and DEUTSCHE BANK AG, CAYMAN ISLANDS BRANCH, a branch of a
foreign banking institution whose address is 60 Wall Street, New
York, New York 10005 (“ Buyer
”). Capitalized terms used but not otherwise defined herein
shall have the meanings given to them in the Guaranty (as
hereinafter defined).
RECITALS
WHEREAS, Anthracite Funding, LLC (“ Seller
”), AHR Capital DB Limited ( Removed Seller
”), Buyer and Deutsche Bank AG, London Branch (“
Removed
Buyer ”) are parties to that certain Master Repurchase
Agreement and Annex I to Master Repurchase Agreement Supplemental
Terms And Conditions, dated as of December 23, 2004, as
supplemented by the English Loan Supplement dated December 23,
2004, the Joinder, dated August 24, 2005, and the Joinder, dated
October 24, 2005, and as amended by that certain Amendment No. 1 to
Annex I to Master Repurchase Agreement Supplemental Terms and
Conditions, dated February 8, 2007 (and as otherwise amended,
restated, supplemented or otherwise modified from time to time, the
“ Repurchase
Agreement ”); and
WHEREAS, Guarantor has entered into that certain Guaranty, dated
December 23, 2004, in favor of Buyer, as amended by that certain
Amendment to Guaranty dated as of February 27, 2007, whereby
Guarantor guaranties all of Seller’s obligation to Buyer
under the Repurchase Agreement (and as otherwise amended, restated,
supplemented or otherwise modified from time to time, the “
Guaranty
”)
WHEREAS, Buyer, Removed Buyer, Seller and Removed Seller desire to
amend the terms of the Repurchase Agreement pursuant to that
certain Amendment No. 2 To Master Repurchase Agreement And Annex I
To Master Repurchase Agreement Supplemental Terms And Conditions,
dated as of the date hereof (the “ Amendment to
MRA ”);
WHEREAS, pursuant to the Amendment to MRA Removed Buyer
and Removed Seller are no longer parties to the Transaction
Documents (as defined in the Repurchase Agreement);
WHEREAS, Buyer has requested, that as condition to the Amendment to
MRA, Guarantor enter into the Amendment; and
WHEREAS, Buyer and Guarantor desire to amend the Guaranty as more
particularly set forth herein.
NOW THEREFORE, in consideration of the premises and for other good
and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Seller and Buyer hereby agree as
follows:
SECTION 1.
Amendments
.
(a) Section 1 of the
Guaranty is hereby amended by adding the following
definitions:
" Committed
Facility " shall mean a credit facility under which
Guarantor is a borrower and a party acceptable to Buyer 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 Buyer); (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.
“ Marketable
Securities ” means any of the following:
(i) 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
(ii) 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
(iii) 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
(iv) 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
(v) &n
