Unassociated Document


     

    
      
        Exhibit
14c

         

        


         

        SECOND
AMENDMENT

         

        TO

         

        AMENDED
AND RESTATED PARENT GUARANTY AND INDEMNITY

         

        THIS SECOND AMENDMENT TO AMENDED AND
RESTATED PARENT GUARANTY AND INDEMNITY dated as of December 31, 2008 (this
“Agreement”),
by and among:

         

        
          	 
      	
                  (a)

                   

                	
                  ANTHRACITE
      CAPITAL, INC., a Maryland corporation (“Guarantor”);

                   

                
	 
      	
                  (b)

                   

                	
                  MORGAN
      STANLEY MORTGAGE SERVICING LTD. (“Security
      Trustee”), as security trustee under the Loan Agreement
      (hereinafter defined); and

                   

                
	 
      	
                  (c)

                   

                	
                  MORGAN
      STANLEY PRINCIPAL FUNDING, INC., a Delaware corporation (“Agent”).

                   

                


        

        RECITALS

         

        
          	
                  A.

                   

                	
                  WHEREAS,
      AHR Capital MS Limited, a company incorporated in the Republic of Ireland
      with Company Number 411989 (“Borrower”),
      Security Trustee, Agent and the other parties thereto are party to that
      certain Second Amended and Restated Multicurrency Revolving Facility
      Agreement dated as of February 15, 2008 (the “Existing Loan
      Agreement”).

                   

                
	
                  B.

                   

                	
                  WHEREAS,
      pursuant to that certain Amended and Restated Parent Guaranty and
      Indemnity dated as of February 15, 2008 (the “Original
      Guaranty”), made by Guarantor in favor of Security Trustee and
      Agent, Guarantor, among other things, guaranteed the obligations of
      Borrower under the Loan Agreement.

                   

                
	
                  C.

                   

                	
                  WHEREAS,
      the Original Guaranty was amended pursuant to that certain First Amendment
      to Amended and Restated Parent Guaranty and Indemnity dated as of April
      14, 2008 (the Original Guaranty as amended by the First Amendment is
      referred to herein as the “Existing
      Guaranty”), among Guarantor, Security Trustee and
      Agent.

                   

                
	
                  D.

                   

                	
                  WHEREAS,
      pursuant to that certain Third Amended and Restated Multicurrency
      Revolving Facility Agreement dated as of the date hereof, among Borrower,
      Security Trustee, Agent and the other parties thereto (as said agreement
      may be modified, amended or restated from time to time, the “Loan
      Agreement”), the Existing Loan Agreement was amended and
      restated.

                   

                
	
                  E.

                   

                	
                  WHEREAS,
      it is a condition to the effectiveness of the Loan Agreement that
      Guarantor execute and deliver this Agreement for the benefit of the
      Finance Parties and, as such, Guarantor desires to amend the Existing
      Guaranty as set forth herein (as herein amended, the “Guaranty”).

                   

                


        

        NOW THEREFORE, in
consideration of the mutual premises and mutual obligations set forth herein and
for other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, Guarantor, Security Trustee and Agent hereby agree as
follows:

         

        1.           Amendment. The
Existing Guaranty is hereby amended as follows:

         

        1.1           Covenants of
Guarantor.

         

        
          
            
            

          

          
            
            

            
              

            

          

          
            
            

          

        

         

           
a.           Section
9(h) of the Existing Guaranty is hereby deleted in its entirety and the
following substituted therefor:

         

        
          	
                   
      

                	
                  (h)
      Maintenance
      Tangible Net Worth. On any date, Guarantor shall not have a
      Tangible Net Worth less than the sum of Five Hundred Fifty Million Dollars
      ($550,000,000) and seventy-five percent (75%) of any equity offering
      proceeds accepted by Guarantor from and after the date of this
      Agreement.

                


        

         

           
b.           Section
9(i) of the Existing Guaranty is hereby deleted in its entirety and the
following substituted therefor:

         

        
          	
                   
      

                	
                  (i)
      Maintenance of
      Ratio of Total Indebtedness to Tangible Net Worth. Guarantor’s
      ratio of Total Indebtedness to Tangible Net Worth shall not at any time be
      greater than 2.5:1.

                


        

         

        1.2           Additional or More
Restrictive Covenants.

         

           
a.           By
adding the following as Section 9(q):

         

        
          	
                   
      

                	
                  (q)
      Guarantor shall not make, modify, amend or supplement any covenant to any
      other Person (i) that is more restrictive on Guarantor as those set forth
      in Section 9 of this Guaranty; and/or (ii) that relate to Guarantor’s
      assets, liabilities, income, net worth, liquidity, profitability and/or
      with respect to ratios relating to any of the foregoing and/or the
      occurrence of a material adverse effect; unless Guarantor has notified
      Security Trustee and Agent thereof and has executed an amendment to this
      Guaranty in a form acceptable to Security Trustee and Agent whereby
      Guarantor has made the same (or substantially the same) covenant(s) (each,
      a “Restrictive
      Covenant”) to Security Trustee and Agent, which Restrictive
      Covenant(s) shall be in addition to (and not in lieu of) Guarantor’s
      covenants and obligations under this Guaranty. With respect to such
      amendment, Guarantor shall also have delivered to Security Trustee and
      Agent an opinion of counsel to Guarantor acceptable to Security Trustee
      and Agent in their sole discretion. Such amendment shall provide that: (x)
      Guarantor shall promptly notify Security Trustee and Agent (together with
      evidence reasonably satisfactory to Security Trustee and Agent) if
      compliance with any of the Restrictive Covenants is waived by the
      beneficiary thereof, and, in such event, for so long as such waiver is in
      effect, a breach of such Restrictive Covenant shall not constitute a
      default under this Guaranty (provided that none of the other covenants in
      this Section 9 are breached), and (y) prior to Guarantor entering into any
      modification, supplement or amendment of a Restrictive Covenant made in
      favor of any Person, Guarantor shall have executed a further amendment to
      this Guaranty in a form acceptable to Security
  Trustee

                


        

         

        
          
            
            

          

          
            
            

            
              

            

          

          
            
            

          

        


        and
Agent whereby the applicable Restrictive Covenant shall be modified,
supplemented or amended. With respect to such amendment, Guarantor shall also
have delivered to Security Trustee and Agent an opinion of counsel to Guarantor
acceptable to Security Trustee and Agent in their sole discretion.

         

        2.           Representations and
Warranties.

         

        2.1           Guarantor
hereby makes to Agent and Security Trustee the representations and warranties
set forth in the Existing Guaranty. Such representations and warranties are true
and correct as though made on and as of the date hereof and after giving effect
to this Agreement.

         

        2.2           In
connection with that certain Transfer Agreement dated as of the date hereof (the
“Transfer
Agreement”), among AHR Capital Limited, a private limited company
incorporated in Ireland with regulation number 398357l, Guarantor and Borrower,
Guarantor represents and warrants to Agent and Security Trustee
that:

         

          
a.           After
giving effect to the transactions contemplated in the Transfer Agreement and
this Agreement, the fair saleable value of Guarantor’s assets exceeds
Guarantor’s total liabilities, including subordinated, unliquidated, disputed
and contingent liabilities;

         

           
b.           All
of the recitals contained in the Transfer Agreement are true and correct;
and

         

           
c.           Guarantor
has not taken any corporate action, and Guarantor has not knowledge of any steps
or legal proceedings having been started by any other Person (as defined in the
Existing Guaranty), for Guarantor’s winding-up, dissolution, administration or
re-organization (whether by way of voluntary arrangement, scheme of arrangement
or otherwise) or for the appointment of a liquidator, receiver, administrator,
examiner, administrative receiver, conservator, custodian, trustee or similar
officer of it or of any or all of its revenues and assets.

         

        3.           Continuing Effect. As
modified by this Agreement, all of the terms of the Guaranty are in full force
and effect.  Each and all references to the Guaranty in the Loan
Documents (as defined in the Loan Agreement) shall mean the Existing Guaranty as
amended hereby.

         

        4.           Ratification, Confirmation
and Assumption. Guarantor hereby (i) ratifies and confirms all of
the obligations of Guarantor under the Existing Guaranty (as amended hereby);
and (ii) represents, warrants and covenants that, as of the date hereof,
Guarantor has no knowledge of any cause of action at law or in equity against
Agent, Security Trustee any lender under the Loan Agreement or any of their
respective Affiliates (including, without limitation, any offset, defense,
deduction or counterclaim) with respect to any of such
obligations.

         

        5.           Binding Effect; No Waiver;
No Partnership. The provisions of the Existing Guaranty as amended hereby
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns.  Nothing herein contained
shall be deemed or construed (a) to constitute a waiver of any right of
Agent and/or Security Trustee Lender under the Loan Documents, or (b) to
create a partnership or joint venture between any of the parties
hereto.

         

        6.           Further Agreements.
Guarantor agrees to execute and deliver such additional documents, instruments
or agreements as may be reasonably requested by Agent and/or Security Trustee
and as may be necessary or appropriate to effectuate the purposes of this
Agreement.

         

        7.           Counterparts.  This
Agreement 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.

         

        
          
            
            

          

          
            
            

            
              

            

          

          
            
            

          

        

         

        8.           GOVERNING
LAW.  THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT REFERENCE TO THE
CHOICE OF LAW PROVISIONS THEREOF.

         

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remainder of this page has been intentionally left blank]

         

        
          
            
            

          

          
            
            

            
              

            

          

          
            
            

          

        

         

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

         

        
          
            
              	
                      GUARANTOR

                       

                      ANTHRACITE
      CAPITAL, INC.

                      a
      Maryland corporation

                    	 
      
	 
      	 
      
	
                      By:

                    	
                      /s/
      Paul Horowitz

                    	 
      	 
      
	
                      Name:

                    	Paul
      Horowitz	 
      
	
                      Title:

                    	Vice
      President	 
      
	 
      	 
      


            

          

        

        


        


        


        


        AGENT

        


        MORGAN
STANLEY PRINCIPAL FUNDING INC.,

        a
Delaware corporation

        


        


        
          
            	
                    By:

                  	
                    /s/
      Cynthia Eckes

                  	 
      
	
                    Name:

                  	
                    Cynthia
      Eckes

                  	 
      
	
                    Title:

                  	
                    Authorized
      Signatory

                  	 
      


          

        

        


        


         

        SECURITY
TRUSTEE

        


        MORGAN
STANLEY MORTGAGE SERVICING LTD.

        


        


        
          	
                  By:

                	
                  /s/
      Matthew Carson

                	 
      
	
                  Name:

                	
                  Matthew
      Carson

                	 
      
	
                  Title:

                	
                  Director

                	 
      


        

        


        


        


        
          	
                  By:

                	
                  /s/
      Justin Winder

                	 
      
	
                  Name:

                	
                  Justin
      Winder

                	 
      
	
                  Title:

                	
                  Director