Unassociated Document


    Exhibit
      10.1

    Execution
      Copy

     

    AMENDMENT,
      AGREEMENT AND WAIVER

    


    AMENDMENT,
      AGREEMENT AND WAIVER dated as of August 7, 2008 (this “Amendment”),
      in
      respect of the Credit Agreement, dated as of March 17, 2006 (as previously
      amended, restated, supplemented or otherwise modified and in effect from time
      to
      time, 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),
      by and
      among AHR CAPITAL BOFA LIMITED (“AHR”)
      as a
      borrower, each of the borrowers from time to time party thereto (together with
      AHR, collectively, the “Borrowers”),
      ANTHRACITE CAPITAL, INC. (“Anthracite”,
      and
      together with the AHR and the other Borrowers, collectively, the “Anthracite
      CA Parties”)
      as
      borrower agent (in such capacity, the “Borrower
      Agent”)
      and
BANK
      OF
      AMERICA, N.A. (“BANA”)
      as
      lender
      (in such capacity, the “Lender”).
      Capitalized terms used but not otherwise defined herein shall have the meanings
      given to them in the Credit Agreement.

    


    RECITALS

    


    WHEREAS,
      the Anthracite CA Parties and the Lender are parties to the Credit
      Agreement;

    


    WHEREAS,
      as a condition to the Credit Agreement, Anthracite has executed that certain
      Parent Guaranty, dated as of July 17, 2006 (the “Guaranty”),
      made
      by Anthracite in favor of the Lender.

    


    WHEREAS,
      pursuant to that certain Borrowing Base Deficiency Event Notice, dated as of
      July 29, 2008 (the “July
      Borrowing Base Deficiency Event Notice”),
      the
      Lender has (i) notified the Anthracite CA Parties that a Borrowing Base
      Deficiency Event has occurred (the “July
      Borrowing Base Deficiency Event”)
      and
      (ii) requested that the Borrowers make a payment to the Lender in accordance
      with the Additional Terms Schedule attached hereto as Schedule
      1
      (the
“Additional
      Terms Schedule”);

    


    WHEREAS,
      the Lender has agreed, subject to the terms hereof, to allow the Borrowers
      to
      pay outstanding amounts due to the occurrence of the July Borrowing Base
      Deficiency Event pursuant to a schedule of payments;

    


    WHEREAS,
      Anthracite Capital BOA Funding LLC (“Anthracite
      Funding”),
      a
      wholly-owned subsidiary of Anthracite, is party to that certain Master
      Repurchase Agreement, dated as of July 20, 2007 (as amended, restated,
      supplemented or otherwise modified from time to time, the “Repurchase
      Agreement”),
      by
      and among Anthracite Funding as seller (the “Seller”),
      BANA,
      as buyer agent (in such capacity, the “Buyer
      Agent’)
      and
      buyer, and Bank of America Mortgage Capital Corporation as buyer (“BAMCC”,
      together with BANA, collectively, the “Buyers”;
      the
      Buyers, the Buyer Agent and the Lender, collectively, the “BOA
      Parties”);

    


    WHEREAS,
      pursuant to that certain Portfolio Margin Deficit Notice, dated as of July
      29,
      2008 (the “July
      Portfolio Margin Deficit Notice”),
      the
      Buyer Agent has (i) notified the Seller that a Portfolio Margin Deficit (as
      defined in the Repurchase Agreement) exists (the “July
      Portfolio Margin Deficit”)
      and
      (ii) requested that the Seller make a payment to the Buyer Agent, for the
      benefit of the Buyers in accordance with the Additional Terms
      Schedule;

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    WHEREAS,
      the Buyer Agent and the Sellers have agreed, subject to the terms of the Repo
      Amendment (as defined below), that the Seller will pay the remaining balance
      of
      the July Portfolio Margin Deficit pursuant to a schedule of
      payments;

    


    WHEREAS,
      simultaneously with this Amendment, the Seller, the Buyers and the Buyer Agent
      shall execute an amendment to the Repurchase Agreement (the “Repo
      Amendment”);

    


    WHEREAS,
      the Anthracite CA Parties have agreed to amend and restate the Collateral
      Documents to grant, as collateral security for the prompt and complete payment
      and performance when due (whether at the stated maturity, by acceleration or
      otherwise) of (i) the Seller’s obligations under the Repurchase Agreement,
      including, without limitation, the Seller’s obligations to make the Repo
      Deferred Payments (as defined in the Repo Amendment), and (ii) Borrowers’
obligations under the Credit Agreement, including without limitation, the
      Borrowers’ obligation to make the CA Deferred Payment (as defined below), a
      security interest in the Collateral; 

    


    WHEREAS,
      Anthracite Funding has agreed to grant, as collateral security for the prompt
      and complete payment and performance when due (whether at the stated maturity,
      by acceleration or otherwise) of the Obligations, a security interest in the
      Collateral (as defined in the Affiliate Security Agreement); and

    


    WHEREAS,
      the Anthracite CA Parties and the Lender have agreed, subject to the terms
      and
      conditions of this Amendment, that the Credit Agreement shall be amended as
      set
      forth below.

    


    NOW
      THEREFORE, the Anthracite CA Parties and the Lender hereby agree, in
      consideration of the mutual premises and mutual obligations set forth herein,
      the receipt and sufficiency of which is hereby acknowledged, as
      follows:

     

    SECTION
      1. Amendments.

    


    (a) Section
      1.01 of the Existing Credit Agreement is hereby amended by deleting the
      definition of “Termination Date” in its entirety and substituting in lieu
      thereof the following new definition:

    


    ““Termination
      Date”
shall
      mean September 18, 2010.”

    


    (b) Section
      1.01 of the Existing Credit Agreement is hereby amended by adding the following
      new definitions in proper alphabetical order:

    


    ““Additional
      Terms Schedule”
means
      the Additional Terms Schedule, attached as Schedule 1 to the Amendment,
      Agreement and Waiver, as the same may be modified from time to
      time.

     

    “Amendment,
      Agreement and Waiver”
shall
      mean that certain Amendment, Agreement and Waiver, dated as of August 7, 2008,
      by and among the Borrowers, the Borrower Agent and the Lender.

     

    
      
        
        

      

      
        -2-

        
          

        

      

      
        
        

      

    

     

    “Buyer
      Agent”
shall
      mean Bank of America, N.A.

    


    “CA
      Deferred Payment”
shall
      have the meaning specified therefor in the Amendment, Agreement and
      Waiver.

    


    “Repo
      Deferred Payments”
shall
      mean the term “Repo Deferred Payments” as defined in the Repurchase
      Agreement.

    


    “Repo
      Obligations”
means
      Seller’s obligations: (a) to fully and promptly pay all sums owed under the
      Repurchase Documents (as defined in the Repurchase Agreement), including,
      without limitation, the Repo Deferred Payments, at the times and according
      to
      the terms required by the Repurchase Documents, without regard to any
      modification, suspension, or limitation of such terms not agreed to by the
      Buyer
      Agent, such as a modification, suspension, or limitation arising in or pursuant
      to any Insolvency Proceeding (as defined in the Repurchase Agreement) affecting
      Seller (even if any such modification, suspension, or limitation causes Seller’s
      obligation to become discharged or unenforceable and even if such modification
      was made with the Buyer Agent’s consent or agreement); and (b) to perform all
      other obligations contained in the Repurchase Documents, whether monetary or
      nonmonetary, when and as required by the Repurchase Documents, including all
      obligations of Seller relating to the Repurchase Transactions under the
      Repurchase Documents.

    


    “Repurchase
      Agreement”
shall
      mean that certain Master Repurchase Agreement, dated as of July 20, 2007, by
      and
      among Seller, Bank of America, N.A., as buyer, Bank of America Mortgage Capital
      Corporation as buyer and the Buyer Agent, as the same may be amended, restated,
      supplemented or otherwise modified from time to time.

    


    “Repurchase
      Price”
shall
      mean the term “Repurchase Price” as defined in the Repurchase
      Agreement.

    


    “Seller”
means
      Anthracite Capital BOFA Funding LLC.”

     

    (c) Section
      2.06 of the Existing Credit Agreement is hereby amended by inserting the
      following new subsections in proper alphabetical order:

    


    “(f) Notwithstanding
      anything contained herein to the contrary, and in addition to any other amounts
      due and payable from time to time under the Credit Agreement and the other
      Loan
      Documents, the Borrowers shall pay to the Lender the principal amount of the
      Loans in consecutive monthly installments pursuant to the terms of the
      Additional Terms Schedule.”

    


    (d) Section
      2.07 of the Existing Credit Agreement is hereby amended by deleting such section
      in its entirety and inserting in lieu thereof the following:

    


    “2.07 Reserved.”

    


    (e) Section
      7(k)(i) of the Existing Credit Agreement is hereby amended by deleting it in
      its
      entirety and inserting in lieu thereof the following:

     

    
      
        
        

      

      
        -3-

        
          

        

      

      
        
        

      

    

     

    “(i)
      defaulted or failed to perform under (A) any BOA Indebtedness or (B) any note,
      indenture, loan agreement, guaranty, swap agreement or any other contract,
      agreement or transaction to which it is a party, which default (1) involves
      the
      failure to pay matured obligations or (2) permits the acceleration of the
      maturity of the obligations by any other party to, or beneficiary of, such
      note,
      indenture, loan agreement, guaranty, swap agreement or other contract agreement
      or transaction,”

    


    SECTION
      2. Waiver.
      The
      Lender and the Anthracite CA Parties hereby waive the notice requirements of
      Section 2.07 of the Existing Credit Agreement with respect to extending the
      Termination Date.

    


    SECTION
      3. CA
      Deferred Payment.
      The
      Borrowers hereby agree to make an additional payment to the Lender as per the
      Additional Terms Schedule.

    


    SECTION
      4. Guarantor
      Affirmation.
      For the
      avoidance of doubt, the Guarantor hereby agrees and confirms that the CA
      Deferred Payment constitutes a “Guaranteed Obligation” (as such term is defined
      in the Guaranty).

    


    SECTION
      5. Further
      Assurances.
      The
      Anthracite CA Parties hereby agree to execute and deliver, or cause to be
      executed and delivered, from time to time, such additional instruments,
      certificates or documents, and take such actions as the Lender may reasonably
      request for the purposes of implementing or effectuating the provisions of
      this
      Amendment, the Credit Agreement, the other Loan Documents, the Repurchase
      Agreement and the other Transaction Documents (as defined in the Repurchase
      Agreement), or of more fully perfecting or renewing the rights of the BOA
      Parties with respect to the Collateral (or with respect to any additions thereto
      or replacements or proceeds thereof or with respect to any other property or
      assets hereafter acquired by an Anthracite CA Party which may be deemed to
      be
      part of the Collateral) pursuant hereto or thereto. Upon the exercise by a
      BOA
      Party of any power, right, privilege or remedy pursuant to this Amendment,
      the
      Credit Agreement, the other Loan Documents, the Repurchase Agreement and the
      other Transaction Documents (as defined in the Repurchase Agreement) which
      requires any consent, approval, recording, qualification or authorization of
      any
      Governmental Authority, the Anthracite CA Parties will execute and deliver,
      or
      will cause the execution and delivery of, all applications, certifications,
      instruments and other documents and papers that the applicable BOA Party may
      be
      required to obtain from the Anthracite CA Parties for such governmental consent,
      approval, recording, qualification or authorization.

    


    SECTION
      6. Conditions
      Precedent.
      This
      Amendment shall become effective on the date (the “Amendment
      Effective Date”)
      on
      which the Lender shall have received:

    


    (a) 
      this
      Amendment, executed and delivered by a duly authorized officer of the Anthracite
      CA Parties;

    


    (b) the
      Amended and Restated Parent Pledge Agreement, dated as of the date hereof,
      duly
      executed by the parties thereto, and in form and substance acceptable to the
      Lender in its sole discretion;

     

    
      
        
        

      

      
        -4-

        
          

        

      

      
        
        

      

    

     

    (c) 
      the
      Amended and Restated Borrower Security Agreement, dated as of the date hereof,
      duly executed by the parties thereto, and in form and substance acceptable
      to
      the Lender in its sole discretion, in form and substance acceptable to the
      Lender in its sole discretion;

    


    (d) the
      Supplemental UK Deed of Charge, dated as of the date hereof, duly executed
      by
      the parties thereto, and in form and substance acceptable to the Lender in
      its
      sole discretion, in form and substance acceptable to the Lender in its sole
      discretion;

    


    (e) the
      Amended and Restated Irish Share Charge, dated as of the date hereof, duly
      executed by the parties thereto, and in form and substance acceptable to the
      Lender in its sole discretion, in form and substance acceptable to the Lender
      in
      its sole discretion;

    


    (f) the
      Amended and Restated Irish Debenture, dated as of the date hereof, duly executed
      by the parties thereto, and in form and substance acceptable to the Lender
      in
      its sole discretion, in form and substance acceptable to the Lender in its
      sole
      discretion;

    


    (g) the
      Amended and Restated Parent Guaranty, dated as of the date hereof, duly executed
      by the parties thereto, and in form and substance acceptable to the Lender
      in
      its sole discretion;

    


    (h) the
      Amended and Restated Fee Letter, dated as of the date hereof, duly executed
      by
      the parties thereto, and in form and substance acceptable to the Lender in
      its
      sole discretion;

    


    (i) the
      Amended and Restated Custodial and Payment Application Agreement, dated as
      of
      the date hereof, duly executed by the parties thereto, and in form and substance
      acceptable to the Lender in its sole discretion;

    


    (j) the
      Affiliate Security Agreement, dated as of the date hereof (the “Affiliate
      Security Agreement”),
      duly
      executed by the parties thereto, and in form and substance acceptable to the
      Lender in its sole discretion;

    


    (k) the
      Additional Security Agreement (Germany), dated as of the date hereof, duly
      executed by the parties thereto, and in form and substance acceptable to the
      Lender in its sole discretion;

    


    (l) the
      Repo
      Amendment, dated as of the date hereof, duly executed by the parties thereto,
      and in form and substance acceptable to the Lender in its sole
      discretion;

    


    (m) a
      certificate from each Anthracite CA Party, substantially in the form of
Exhibit
      A
      hereto,
      dated as of the date hereof, executed and delivered by a duly authorized officer
      thereof;

     

    
      
        
        

      

      
        -5-

        
          

        

      

      
        
        

      

    

     

    (n) legal
      opinions of US, English and Irish outside counsel to the Anthracite CA Parties
      and the Seller which shall cover such matters incident to this Amendment and
      the
      other documents delivered in connection herewith as the Lender may
      require;

    


    (o) a
      non-refundable amendment fee payable by the Borrower Agent to the Lender, in
      an
      amount equal to 0.50% (50.00 basis points) of the Maximum Credit;
      and

    


    (p) such
      other documents as the Lender may reasonably request.

    


    SECTION
      7. Representations
      and Warranties.
      On and
      as of the date first above written, each Anthracite CA Party hereby represents
      and warrants to the Lender that (a) it is in compliance with all the terms
      and
      provisions set forth in the Loan Documents as amended hereby on its part to
      be
      observed or performed, (b) no Default or Event of Default has occurred and
      is
      continuing, and (c) the representations and warranties contained in Section
      5 of
      the Credit Agreement are true and correct in all material respects as though
      made on such date (except for any such representation or warranty that by its
      terms refers to a specific date other than the date first above written, in
      which case it shall be true and correct in all material respects as of such
      other date).

    


    SECTION
      8. Limited
      Effect.
      Except
      as expressly amended and modified by this Amendment, the Existing Credit
      Agreement shall continue to be, and shall remain, in full force and effect
      in
      accordance with its terms; provided,
      however,
      that
      upon the Amendment Effective Date, all references therein and herein to the
      “Loan Documents” shall be deemed to include, in any event, this Amendment. Each
      reference to the Credit Agreement in any of the Loan Documents shall be deemed
      to be a reference to the Credit Agreement as amended hereby.

    


    SECTION
      9. Counterparts.
      This
      Amendment may be executed by each of the parties hereto on any number of
      separate counterparts, each of which shall be an original and all of which
      taken
      together shall constitute one and the same instrument. Delivery of an executed
      counterpart of a signature page to this Amendment in Portable Document Format
      (PDF) or by facsimile transmission shall be effective as delivery of a manually
      executed original counterpart thereof.

    


    SECTION
      10. Acknowledgment.
      Each
      Anthracite CA Party hereby acknowledges that the Lender does not currently
      intend to extend the Termination Date of the Credit Agreement to a date later
      than the applicable date provided under this Amendment.

    


    SECTION
      11. GOVERNING
      LAW.
      THIS
      AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
      OF
      THE STATE OF NEW YORK.

    


    [SIGNATURES
      FOLLOW]

     

    
      
        
        

      

      
        -6-

        
          

        

      

      
        
        

      

    

    


    IN
      WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
      executed and delivered as of the day and year first above written.

    


    ANTHRACITE
      CAPITAL, INC.,
      

    a
      Maryland corporation, as Borrower Agent and Guarantor

     

    


    By: 
      /s/ Richard
      Shea                                                


    Name:
      Richard Shea

    Title:
      President and COO

    


    SIGNED,
      SEALED AND DELIVERED

    by
      the
      duly
      authorised attorney of

    AHR
      CAPITAL BOFA LIMITED,
      as
      Borrower,

    in
      the
      presence of:

     

    


    By: /s/
      Richard
      Shea                                                


    Name:
      Richard Shea

    Title:
      Director

    


    


     

     

    
 

    
      Signature
        Page to Amendment, Agreement and Waiver

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

    

    


    BANK
      OF AMERICA N.A.,
      as
      Lender

     

     

    
      By: /s/
        Jeffrey B.
        Hoyle                                            


      Name:
        Jeffrey B. Hoyle

      Title:
        Managing Director

      



    

     

     

     

    
      Signature
        Page to Amendment, Agreement and Waiver

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

    

    


    Exhibit
      A

    


    [Officer’s
      Certificate]


     

    
      
        
        

      

      
        A-1

        
          

        

      

      
        
        

      

    

    

 

    


    Schedule
      1

    


    [Additional
      Terms Schedule]

    


    
      
        
        

      

      
        S1-1