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Exhibit
10.1
WAIVER AND AGREEMENT
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 hereb
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