Unassociated Document


    Exhibit
      10.4

     

    AMENDED
      AND RESTATED

    PARENT
      GUARANTY

     

    This
      AMENDED AND RESTATED PARENT GUARANTY, dated as of August 7, 2008 (as
      amended, restated, supplemented or otherwise modified from time to time, this
      “Guaranty”),
      is
      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).

     

    RECITALS

     

    WHEREAS,
      Anthracite 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 “Existing
      Credit Agreement”;
      as
      amended by the Amendment, Agreement and Waiver, dated as of the date hereof
      (the
“Amendment”)
      and as
      further amended, supplemented or otherwise modified from time to time, the
      “Credit
      Agreement”)
      among
      AHR Capital BofA Limited, a limited company organized under the laws of Ireland
      (“AHR
      Capital”)
      as a
      borrower (a “Borrower”),
      Anthracite as the borrower agent (the “Borrower
      Agent”),
      the
      borrowers from time to time party thereto (each a “Borrower”
and
      together with AHR Capital, collectively, the “Borrowers”))
      and
      the Lender;

     

    WHEREAS,
      in connection with the Existing Credit Agreement, the Guarantor executed and
      delivered that certain Parent Guaranty, dated as of March 17, 2006 (as amended,
      restated, supplemented or otherwise modified prior to the date hereof, the
      “Existing
      Guaranty”);

     

    WHEREAS,
      the Borrowers, the Borrower Agent and the Lender have amended the Existing
      Credit Agreement pursuant to the Amendment;

     

    WHEREAS,
      the Guarantor owns directly all of the issued and outstanding Capital Stock
      of
      AHR Capital; and 

     

    WHEREAS,
      it is a requirement under the Amendment that the Existing Guaranty be amended
      and restated as provided herein and it is a condition precedent to the
      effectiveness of the Amendment that the Guarantor shall have executed and
      delivered this Guaranty to the Lender;

     

    NOW,
      THEREFORE, in consideration of the premises and to induce the Lender to enter
      into the Amendment, the Guarantor hereby agrees with the Lender, as
      follows:

     

    1.  Defined
      Terms.
      

     

    (a)  Unless
      otherwise defined in Section 1(d) below, or elsewhere in this Guaranty,
      capitalized terms used in this Guaranty shall have the meanings ascribed to
      such
      terms in the Credit Agreement.

     

    (b)  The
      words
“hereof,” “herein” and “hereunder” and words of similar import when used in this
      Guaranty shall refer to this Guaranty as a whole and not to any particular
      provision of this Guaranty, and section and paragraph references are to this
      Guaranty unless otherwise specified.

     

    (c)  The
      meanings given to terms defined herein shall be equally applicable to both
      the
      singular and plural forms of such terms.

     

    (d)  As
      used
      herein, the following terms shall have the following meanings:

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    “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.

     

    “Cash
      Interest Expense”
shall
      mean for any period, total interest expense, both expensed and capitalized,
      of
      Guarantor and its Subsidiaries for such period with respect to all outstanding
      recourse Indebtedness of Guarantor and its Subsidiaries (including, without
      limitation, all commissions, discounts and other fees and charges owed with
      respect to letter of credit and bankers’ acceptance financing and net costs
      under interest rate protection agreements), determined on a consolidated cash
      basis, for such period (determined on a consolidated cash basis), and net of
      any
      interest accretions, whether in favor or against, with respect to
      debt.

     

    “Committed
      Facility”
shall
      mean a credit facility under which Guarantor is a borrower and a party
      acceptable to the Lender 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 Lender); (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.

     

    
      
        
        

      

      
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    “Debt
      Service Coverage Ratio”
or
      “DSCR”
shall
      mean the ratio of Adjusted Net Income to Cash Interest Expense on recourse
      Indebtedness outstanding, it being understood that such determination shall
      be
      made on a cash basis. 

     

    “Intangible
      Assets”
shall
      mean the excess of the cost over book value of assets acquired, patents,
      trademarks, trade names, copyrights, franchises and other intangible assets
      (excluding in any event the value of any residual securities).

     

    “Mark-to-Market
      Indebtedness”
shall
      mean the portion of Total Indebtedness of Anthracite (which may be all of such
      Indebtedness) where the terms thereunder permit the holder thereof to make
      a
      margin call, accelerate all or part of such Indebtedness and/or request the
      repayment in full or in part prior to the applicable maturity date based on
      changes in the market value of the collateral securing such
      Indebtedness.

     

    “Marketable
      Securities”
means
      any of the following:

     

    (a)  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 

     

    (b)  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 

     

    (c)  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 

     

    (d)  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 

     

    (e)  90%
      of
      the market value of single-class mortgage pass-through certificates
      (“FNMA
      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 ultimate
      collection of principal of which are guaranteed by the Federal National Mortgage
      Association (excluding REMIC or other multi-class pass-through certificates,
      pass-through certificates backed by adjustable rate mortgages collateralized
      mortgage obligations, securities paying interest or principal only and similar
      derivative securities); or 

     

    (f)  90%
      of
      the market value of single-class fully modified pass-through certificates
      (“GNMA
      Certificates”
in
      book-entry form backed by single-family residential mortgage loans, the full
      and
      timely payment of principal and interest of which is guaranteed by the
      Government National Mortgage Association (excluding 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 derivatives securities); or

     

    
      
        
        

      

      
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    (g)  85%
      of
      all actively and regularly traded investment-grade residential mortgage-backed
      securities; or

     

    (h)  such
      other collateral as Guarantor and Lender may agree, with such valuation
      percentage applied thereto as Lender, in its sole discretion acting in good
      faith shall deem appropriate. 

     

    “Net
      Income”
shall
      mean for any period and for Anthracite and its consolidated Subsidiaries, the
      consolidated net income (or loss) of Anthracite and its consolidated
      Subsidiaries for such period as determined on a consolidated basis in accordance
      with GAAP as adjusted in accordance with the terms hereof.

     

    “Non-Recourse
      Indebtedness”
shall
      mean, with respect to any Person, Indebtedness for borrowed money in respect
      of
      which recourse for payment (except for customary exceptions for fraud,
      misapplication of funds, environmental indemnities, and other customary
      exceptions to non-recourse provisions) is contractually limited to specific
      assets of such Person encumbered by a Lien securing such
      Indebtedness.

     

    “Tangible
      Net Worth”
shall
      mean, as of a particular date, (i) all amounts that would be included under
      stockholder’s equity on a balance sheet of Anthracite and its consolidated
      Subsidiaries at such date, determined in accordance with GAAP, less
      (ii) the
      sum of (A) amounts owing to Anthracite and its consolidated Subsidiaries
      from Affiliates and (B) Intangible Assets of Anthracite and its
      consolidated Subsidiaries. 

     

    “Tangible
      Net Worth Ratio”
shall
      have the meaning provided in Section
      11(b)
      of this
      Guaranty. 

     

    “Total
      Indebtedness”
shall
      mean for any period, the aggregate Indebtedness (excepting any Non-Recourse
      Indebtedness) of Anthracite and its consolidated Subsidiaries during such
      period. 

     

    2.  Guaranty.

     

    (a)  The
      Guarantor, as guarantor of payment and performance and not merely as surety
      or
      guarantor of collection, hereby, unconditionally and irrevocably, guarantees
      to
      the Lender and its successors and permitted assigns, the prompt and complete
      payment and performance by each Borrower when due (whether at the stated
      maturity, by acceleration or otherwise) of all Obligations of such Borrower
      under the Credit Agreement and the other Loan Documents (the “Guaranteed
      Obligations”);
      provided,
      that
      the Guaranteed Obligations shall not at any time be reduced by operation of
      Section 10.18 of the Credit Agreement.

     

    (b)  The
      Guarantor further agrees to pay any and all expenses (including, without
      limitation, all fees and disbursements of external counsel) which may be paid
      or
      incurred by the Lender in enforcing any rights with respect to, or collecting,
      any or all of the Guaranteed Obligations and/or enforcing any rights with
      respect to, or collecting against, the Guarantor under this Guaranty, the Parent
      Pledge Agreement or the Parent Deed of Charge. This Guaranty shall remain in
      full force and effect until the Obligations are paid in full and the obligation
      of the Lender to make Loans under the Credit Agreement shall be terminated,
      notwithstanding that from time to time prior thereto each Borrower may be free
      from any Obligations.

     

    
      
        
        

      

      
        -4-

        
          

        

      

      
        
        

      

    

     

    (c)  The
      Guarantor agrees that the Guaranteed Obligations may at any time and from time
      to time exceed the amount of the liability of such Guarantor hereunder without
      impairing this Guaranty or affecting the rights and remedies of the Lender
      hereunder.

     

    (d)  No
      payment or payments made by any Borrower, the Guarantor, any other guarantor
      or
      any other Person or received or collected by the Lender from any Borrower,
      the
      Guarantor, any other guarantor or any other Person by virtue of any action
      or
      proceeding or any set-off or appropriation or application at any time or from
      time to time in reduction of or in payment of the Obligations shall be deemed
      to
      modify, reduce, release or otherwise affect the liability of the Guarantor
      hereunder which shall, notwithstanding any such payment or payments other than
      payments made by the Guarantor in respect of the Obligations or payments
      received or collected from the Guarantor in respect of the Obligations, remain
      liable for the Guaranteed Obligations up to the maximum liability of the
      Guarantor hereunder until the Obligations are paid in full and the obligation
      of
      the Lender to make Loans under the Credit Agreement shall be
      terminated.

     

    (e)  The
      Guarantor agrees that whenever, at any time, or from time to time, it shall
      make
      any payment to the Lender on account of its liability hereunder, it will notify
      the Lender in writing that such payment is made under this Guaranty for such
      purpose.

     

    3.  Deferral
      of Subrogation.
      Notwithstanding any payment or payments made by the Guarantor hereunder or
      any
      set-off or application of funds of the Guarantor by the Lender, the Guarantor
      shall not be entitled to be subrogated to any of the rights of the Lender
      against any Borrower or any other guarantor or any collateral security or
      guarantee or right of offset held by the Lender for the payment of the
      Obligations, nor shall the Guarantor seek or be entitled to seek any
      contribution or reimbursement from any Borrower or any other guarantor in
      respect of payments made by the Guarantor hereunder, until all amounts owing
      to
      the Lender by each Borrower on account of the Obligations are paid in full
      and
      the obligation of the Lender to make Loans under the Credit Agreement shall
      be
      terminated. If any amount shall be paid to the Guarantor on account of such
      subrogation rights at any time when all of the Obligations shall not have been
      paid in full and the obligation of the Lender to make Loans under the Credit
      Agreement shall be terminated, such amount shall be held by the Guarantor in
      trust for the Lender, segregated from other funds of the Guarantor, and shall,
      forthwith upon receipt by the Guarantor, be turned over to the Lender, to be
      applied against the Obligations, whether matured or unmatured, in such order
      as
      the Lender may determine.

     

    4.  Amendments,
      etc. with respect to the Obligations; Waiver of Rights.
      The
      Guarantor shall remain obligated hereunder notwithstanding that, without any
      reservation of rights against the Guarantor and without notice to or further
      assent by the Guarantor, any demand for payment of any of the Obligations made
      by the Lender may be rescinded by such party and any of the Obligations
      continued, and the Obligations, or the liability of any other party upon or
      for
      any part thereof, or any collateral security or guarantee therefor or right
      of
      offset with respect thereto, may, from time to time, in whole or in part, be
      renewed, extended, amended, modified, accelerated, compromised, waived,
      surrendered or released by the Lender, and the Credit Agreement, the Notes
      and
      the other Loan Documents and any other documents executed and delivered in
      connection therewith may be amended, modified, supplemented or terminated,
      in
      whole or in part, as the Lender may deem advisable from time to time, and any
      collateral security, guarantee or right of offset at any time held by the Lender
      for the payment of the Obligations may be sold, exchanged, waived, surrendered
      or released. The Lender shall have no obligation to protect, secure, perfect
      or
      insure any Lien at any time held by it as security for the Obligations or for
      this Guaranty or any property subject thereto. When making any demand hereunder
      against the Guarantor, the Lender may, but shall be under no obligation to,
      make
      a similar demand on each Borrower or any other guarantor, and any failure by
      the
      Lender to make any such demand or to collect any payments from each Borrower
      or
      any such other guarantor or any release of any Borrower or such other guarantor
      shall not relieve the Guarantor of its obligations or liabilities hereunder,
      and
      shall not impair or affect the rights and remedies, express or implied, or
      as a
      matter of law, of the Lender against the Guarantor. For the purposes hereof
      “demand” shall include the commencement and continuance of any legal
      proceedings.

     

    
      
        
        

      

      
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    5.  Guaranty
      Absolute and Unconditional.
      The
      Guarantor waives any and all notice of the creation, renewal, extension or
      accrual of any of the Obligations and notice of or proof of reliance by the
      Lender upon this Guaranty or acceptance of this Guaranty, the Obligations,
      and
      any of them, shall conclusively be deemed to have been created, contracted
      or
      incurred, or renewed, extended, amended or waived, in reliance upon this
      Guaranty; and all dealings between each Borrower and the Guarantor, on the
      one
      hand, and the Lender, on the other hand, likewise shall be conclusively presumed
      to have been had or consummated in reliance upon this Guaranty. The Guarantor
      waives diligence, presentment, protest, demand for payment and notice of default
      or nonpayment to or upon each Borrower or the Guarantor with respect to the
      Obligations. The Guarantor understands and agrees that this Guaranty shall
      be
      construed as a continuing, absolute and unconditional guarantee of payment
      without regard to (a) the validity, regularity or enforceability of the Credit
      Agreement, any Note or any other Loan Document, any of the Obligations or any
      other collateral security therefor or guarantee or right of offset with respect
      thereto at any time or from time to time held by the Lender, (b) any defense,
      set-off or counterclaim (other than a defense of payment or performance) which
      may at any time be available to or be asserted by any Borrower against the
      Lender, or (c) any other circumstance whatsoever (with or without notice to
      or
      knowledge of each Borrower or the Guarantor) which constitutes, or might be
      construed to constitute, an equitable or legal discharge of any Borrower for
      the
      Obligations, or of the Guarantor under this Guaranty, in bankruptcy or in any
      other instance. When pursuing its rights and remedies hereunder against the
      Guarantor, the Lender may, but shall be under no obligation to, pursue such
      rights and remedies as it may have against any Borrower or any other Person
      or
      against any collateral security or guarantee for the Obligations or any right
      of
      offset with respect thereto, and any failure by the Lender to pursue such other
      rights or remedies or to collect any payments from any Borrower or any such
      other Person or to realize upon any such collateral security or guarantee or
      to
      exercise any such right of offset, or any release of a Borrower or any such
      other Person or any such collateral security, guarantee or right of offset,
      shall not relieve the Guarantor of any liability hereunder, and shall not impair
      or affect the rights and remedies, whether express, implied or available as
      a
      matter of law, of the Lender against the Guarantor. This Guaranty shall remain
      in full force and effect and be binding in accordance with and to the extent
      of
      its terms upon the Guarantor and the successors and assigns thereof, and shall
      inure to be benefit of the Lender, and its successors and permitted assigns,
      until all the Obligations and the Guaranteed Obligations shall have been
      satisfied by payment in full and the obligation of the Lender to make Loans
      under the Credit Agreement shall be terminated, notwithstanding that from time
      to time during the term of the Credit Agreement each Borrower may be free from
      any Obligations.

     

    6.  Reinstatement.
      This
      Guaranty shall continue to be effective, or be reinstated, as the case may
      be,
      if at any time payment, or any part thereof, of any of the Obligations is
      rescinded or must otherwise be restored or returned by the Lender upon the
      insolvency, bankruptcy, dissolution, liquidation or reorganization of any
      Borrower or the Guarantor, or upon or as a result of the appointment of a
      receiver, intervenor or conservator of, or trustee or similar officer for,
      any
      Borrower or the Guarantor or any substantial part of its property, or otherwise,
      all as though such payments had not been made.

     

    7.  Not
      Affected by Bankruptcy.
      Notwithstanding any modification, discharge or extension of the Obligations
      or
      any amendment, modification, stay or cure of the Lender's rights that may occur
      in any bankruptcy or reorganization case or proceeding against any Borrower,
      whether permanent or temporary, and whether or not assented to by the Lender,
      the Guarantor hereby agrees that it shall be obligated hereunder to pay and
      perform the Guaranteed Obligations and discharge its other obligations in
      accordance with the terms of the Guaranteed Obligations and the terms of this
      Guaranty. The Guarantor understands and acknowledges that, by virtue of this
      Guaranty, it has specifically assumed any and all risks of a bankruptcy or
      reorganization case or proceeding with respect to any Borrower. Without in
      any
      way limiting the generality of the foregoing, any subsequent modification of
      the
      Obligations in any reorganization case concerning such Borrower shall not affect
      the obligation of the Guarantor to pay and perform the Guaranteed Obligations
      in
      accordance with the original terms thereof.

     

    
      
        
        

      

      
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    8.  Payments.
      The
      Guarantor hereby guarantees that payments hereunder will be paid to the Lender
      without set-off or counterclaim in U.S. Dollars at the office of the Lender
      specified in Section 10.02 of the Credit Agreement.

     

    9.  Representations
      and Warranties.
      The
      Guarantor hereby represents and warrants that:

     

    (a)  The
      representations and warranties contained in Section 5 of the Credit Agreement,
      insofar as the representations and warranties contained therein are applicable
      to the Guarantor, are true and correct in all material respects (each such
      representation and warranty set forth in such Section (insofar as applicable
      as
      aforesaid) and all other terms of the Credit Agreement to which reference is
      made therein, together with all related definitions and ancillary provisions,
      being hereby incorporated into this Guaranty by this reference as though
      specifically set forth in this Section); and

     

    (b)  The
      Guarantor agrees that the foregoing representations and warranties shall be
      deemed to have been made by the Guarantor on the date of each borrowing by
      any
      Borrower under the Credit Agreement as though made hereunder on and as of such
      date.

     

    10.  Covenants.
      The
      Guarantor hereby covenants and agrees with the Lender that, so long as any
      Loan
      is outstanding and until payment in full of all Obligations:

     

    (a)  Maintenance
      of Tangible Net Worth.  Tangible
      Net Worth at the end of each fiscal quarter shall not be less than the sum
      of
      (i) $400,000,000, plus,
      (ii) an
      amount equal to 75% of any Equity Proceeds received by the Guarantor on or
      after
July
      20,
      2007;

     

    (b)  Maintenance
      of Ratio of Total Indebtedness to Tangible Net Worth.
      The
      ratio of Total Indebtedness to Tangible Net Worth (the “Tangible
      Net Worth Ratio”)
      at the
      end of each fiscal quarter shall not be greater than 3.0:1.0;

     

    (c)  Changes
      in Tangible Net Worth.
      On any
      date, the Guarantor’s Tangible Net Worth shall not have decreased by (i) twenty
      percent (20%) or more from the Guarantor’s Tangible Net Worth as of the last
      Business Day in the third (3rd)
      month
      preceding such date; or (ii) forty percent (40%) or more from the Guarantor’s
      Tangible Net Worth as of the last Business Day in the twelfth (12th)
      month
      preceding such date;

     

    (d)  Minimum
      DSCR.
      DSCR at
      the end of each fiscal quarter shall not be less than 1.40:1.0;

     

    (e)  Minimum
      Liquidity.
      As of
      any date, the sum of the Guarantor’s (x) cash, (y) Marketable Securities, and
      (z) subject to the following proviso, availability under any Committed Facility
      that is unrestricted and not subject to Liens, to be less than 5.0% of the
      Guarantor’s Indebtedness which is subject to mark-to-market provisions;
provided,
      however ̧ that the maximum amount of availability under any Committed Facility
      that is unrestricted and not subject to Liens that may be included for purposes
      of satisfying the requirements of this Section 10(e) shall not exceed 1.25%
      of
      the Guarantor’s Indebtedness which is subject to mark-to-market
      provisions;

     

    
      
        
        

      

      
        -7-

        
          

        

      

      
        
        

      

    

     

    (f)  Net
      Income.
      For any
      period of two consecutive fiscal quarters, Guarantor’s Net Income shall not be
      less than $1.00; and

     

    (g)  Borrower
      Compliance.
      The
      Guarantor shall, or shall cause each Borrower to, as applicable, comply with
      the
      requirements of Section 6.01 of the Credit Agreement and the other provisions
      of
      the Credit Agreement[;

     

    provided,
      that
      compliance with clauses (a) through (f) above shall be determined by excluding
      the assets and liabilities of variable interest entities required to be
      consolidated under FIN 46R and without giving any effect to any changes in
      or in
      the interpretation of FAS 140 after the date hereof.]

     

    11.  Notices.
      All
      notices, requests and demands to or upon the Lender or the Guarantor to be
      effective shall be in writing (or by telex, fax or similar electronic transfer
      confirmed in writing) and shall be deemed to have been duly given or made (i)
      when delivered by hand or (ii) if given by mail, when deposited in the mails
      by
      certified mail, return receipt requested, or (iii) if by telex, fax or similar
      electronic transfer, when sent and receipt has been confirmed, addressed as
      follows:

     

    (a)  if
      to the
      Lender, at its address or transmission number for notices provided in
      Section 10.02 of the Credit Agreement; and

     

    (b)  if
      to the
      Guarantor, at its address or transmission number for notices set forth under
      its
      signature below.

     

    Each
      of
      the Lender and the Guarantor may change its address and transmission number
      for
      notices by notice in the manner provided in this Section.

     

    12.  Severability.
      Any
      provision of this Guaranty that is prohibited or unenforceable in any
      jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
      such prohibition or unenforceability without invalidating the remaining
      provisions hereof, and any such prohibition or unenforceability in any
      jurisdiction shall not invalidate or render unenforceable such provision in
      any
      other jurisdiction.

     

    13.  Integration.
      This
      Guaranty represents the agreement of the Guarantor with respect to the subject
      matter hereof and there are no promises or representations by the Lender
      relative to the subject matter hereof not reflected herein.

     

    14.  Amendments
      in Writing; No Waiver; Cumulative Remedies.
      

     

    (a)  None
      of
      the terms or provisions of this Guaranty may be waived, amended, supplemented
      or
      otherwise modified except as provided by Section 10.04 of the Credit Agreement.
      

     

    (b)  The
      Lender shall not by any act (except by a written instrument pursuant to
Section
      15(a)
      hereof),
      delay, indulgence, omission or otherwise be deemed to have waived any right
      or
      remedy hereunder or to have acquiesced in any default or Event of Default or
      in
      any breach of any of the terms and conditions hereof. No failure to exercise,
      nor any delay in exercising, on the part of the Lender, any right, power or
      privilege hereunder shall operate as a waiver thereof. No single or partial
      exercise of any right, power or privilege hereunder shall preclude any other
      or
      further exercise thereof or the exercise of any other right, power or privilege.
      A waiver by the Lender of any right or remedy hereunder on any one occasion
      shall not be construed as a bar to any right or remedy which the Lender would
      otherwise have on any future occasion.

     

    
      
        
        

      

      
        -8-

        
          

        

      

      
        
        

      

    

     

    The
      rights and remedies herein provided are cumulative, may be exercised singly
      or
      concurrently and are not exclusive of any other rights or remedies provided
      by
      law.

     

    15.  Section
      Headings.
      The
      section headings used in this Guaranty are for convenience of reference only
      and
      are not to affect the construction hereof or be taken into consideration in
      the
      interpretation hereof.

     

    16.  Successors
      and Assigns.
      This
      Guaranty shall be binding upon the successors and assigns of the Guarantor
      and
      shall inure to the benefit of the Lender and its successors and
      assigns.

     

    17.  GOVERNING
      LAW.
      THIS
      GUARANTY SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
      WITH,
      THE LAW OF THE STATE OF NEW YORK.

     

    18.  Submission
      To Jurisdiction; Waivers.
      The
      Guarantor hereby irrevocably and unconditionally:

     

    (a)  SUBMITS
      FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS
      GUARANTY, AND THE OTHER LOAN DOCUMENTS, OR FOR RECOGNITION AND ENFORCEMENT
      OF
      ANY JUDGMENT IN RESPECT THEREOF, TO THE NON-EXCLUSIVE GENERAL JURISDICTION
      OF
      THE COURTS OF THE STATE OF NEW YORK, THE FEDERAL COURTS OF THE UNITED STATES
      OF
      AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK, AND APPELLATE COURTS FROM ANY
      THEREOF;

     

    (b)  CONSENTS
      THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT IN SUCH COURTS AND, TO THE
      EXTENT PERMITTED BY LAW, WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER
      HAVE
      TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH
      ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT COURT AND AGREES NOT TO
      PLEAD OR CLAIM THE SAME;

     

    (c)  AGREES
      THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING MAY BE EFFECTED BY
      MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL (OR ANY SUBSTANTIALLY
      SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO ITS ADDRESS SET FORTH UNDER ITS
      SIGNATURE BELOW OR AT SUCH OTHER ADDRESS OF WHICH THE LENDER SHALL HAVE BEEN
      NOTIFIED; AND;

     

    (d)  AGREES
      THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT SERVICE OF PROCESS IN
      ANY
      OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT TO SUE IN ANY OTHER
      JURISDICTION.

     

    19.  WAIVER
      OF JURY TRIAL.
      THE
      GUARANTOR HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT
      PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
      ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTY OR ANY OTHER
      LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.


     

    20.  Acknowledgments.
      The
      Guarantor hereby acknowledges that:

     

    
      
        
        

      

      
        -9-

        
          

        

      

      
        
        

      

    

     

    (a)  it
      has
      been advised by counsel in the negotiation, execution and delivery of this
      Guaranty and the other Loan Documents to which it is a party;

     

    (b)  the
      Lender has no fiduciary relationship with or duty to the Guarantor arising
      out
      of or in connection with this Guaranty or any of the other Loan Documents to
      which it is a party, and the relationship between the Guarantor and each
      Borrower, on one hand, and the Lender, on the other hand, in connection herewith
      or therewith is solely that of debtor and creditor; and

     

    (c)  no
      joint
      venture is created hereby or by the other Loan Documents or otherwise exists
      by
      virtue of the transactions contemplated hereby among the Guarantor, any Borrower
      and the Lender.

     

    (d)  Effect
      of Amendment and Restatement.
      As of
      the date hereof, the Existing Guaranty shall be amended, restated and superseded
      in its entirety. Each reference to the Existing Guaranty in any Loan Document
      shall be deemed to be a reference to this Guaranty.

     

    [SIGNATURES
      FOLLOW]

     

    
      
        
        

      

      
        -10-

        
          

        

      

      
        
        

      

    

     

    IN
      WITNESS WHEREOF, the undersigned has caused this Guaranty to be duly executed
      and delivered by its duly authorized officer as of the day and year first above
      written.

     

     

    ANTHRACITE
      CAPITAL, INC.

     

    By: /s/
      Richard
      Shea                                       


    Title:
      President and
      COO                        


     

     

    Address
      for Notices:

     

    40
      East
      52nd
      Street

    New
      York,
      New York 10022

    Attention:
      Richard Shea

    Telecopier
      No.: (212) 810-8758

    Telephone
      No.: (212) 754-5579

     

    and


     

    Anthracite
      Capital, Inc.

    One
      PNC
      Plaza, 19th
      Floor

    Mailstop
      P1-P0PP-19-2

    249
      Fifth
      Avenue

    Pittsburgh,
      PA 15222

    Attention:
      Janice De Julio

    Telecopier
      No.: (412) 762-4546

    Telephone
      No.: (412) 762-4675

     

     

    

      Amended
        and Restated Parent Guaranty Signature Page