AMENDMENT TO GUARANTY
AMENDMENT TO GUARANTY dated as of February 27, 2007
(this “ Amendment
”) between ANTHRACITE CAPITAL, INC.
(“ Guarantor ”) and DEUTSCHE BANK AG, CAYMAN ISLANDS BRANCH
(“ Buyer ”).
W I T N E S S E T H :
WHEREAS, Anthracite Funding, LLC (“
Seller ”) and
Buyer entered into a certain Master Repurchase Agreement, dated as
of December 23, 2004 (as amended, the “ Master Repurchase Agreement ”),
pursuant to which Buyer agreed to purchase Eligible Loans and
Eligible Securities from Seller and Seller agreed to repurchase
such Eligible Loans and Eligible Securities from Buyer, all in
accordance with the terms and conditions of the Master Repurchase
Agreement;
WHEREAS, as a condition to the Master Repurchase
Agreement, Guarantor executed a certain Guaranty (the
“ Guaranty ”), dated as of December 23, 2004; and
WHEREAS, Guarantor and Buyer desire to amend the
Guaranty in the manner and on the terms set forth
herein.
NOW THEREFORE, for good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree amend the Guaranty as follows.
1.1
The definition of “Consolidated Net
Income” is hereby amended by inserting the following text
immediately before the period at the end thereof: “as
adjusted in accordance with the terms hereof.”
1.2
The definition of “Debt Service
Coverage” is hereby deleted in its entirety and replaced as
follows:
“Debt Service Coverage” means the ratio
of Funds From Operations to Cash Interest Expense on recourse
Indebtedness outstanding, it being understood that such
determination shall be made on a cash basis.
1.3
The definition of “Funds From
Operations” is hereby deleted in its entirety and replaced as
follows:
“Funds From Operations” for any period
means the Consolidated 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, Consolidated Net
Income shall be determined before preferred stock dividends and
shall include cash distributions from equity investments and
unconsolidated joint ventures.
1.4
The definition of “Interest Expense” is
hereby deleted in its entirety and replaced with “Cash
Interest Expense” as follows:
“Cash Interest Expense” means for any
period, total interest expense, both
