ex10-1.htm


    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 hereby acknowledged,
      the
      parties hereto agree as follows:

     

    SECTION
      1. Waiver
      of Section 10(a)
      (Maintenance of Tangible Net Worth).  Solely with respect to
      the obligation of the Guarantor to satisfy the requirements of Section 10(a)
      of
      the Guaranty at December 31, 2007, the Lender hereby waives compliance with
      the
      requirement of Section 10(a) of the Guaranty.

     

    SECTION
      2. Agreement.

     

    (a) Until
      such time as the Lender notifies the Borrower and the Guarantor that the
      Borrower may request additional Loans, the Lender shall not be committed to
      make
      any new Loans to the Borrower.

     

    (b) Unless
      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, the provisions
      of
      Section 10 of the Guaranty shall continue to apply as if the FAS 159 Election
      had not been made.

     

    SECTION
      3. Conditions
      Precedent.  This Waiver and Agreement shall become effective on
      the date (the “Waiver
      Effective Date”) on which the following conditions precedent shall have
      been satisfied:

     

    (a) the
      Lender shall have received this Waiver and Agreement, executed and delivered
      by
      a duly authorized officer of the Guarantor, the Borrowers and the Lender;
      and

     

    (b) each
      of the representations and warranties made and restated by the Guarantor and
      the
      Borrowers pursuant to Section 4 of this Waiver and Agreement shall be true
      and complete 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
      4. Representations
      and
      Warranties. On and as of the date first above written, each of the
      Guarantor and the Borrowers hereby represents and warrants to the Lender that,
      after giving effect to this Waiver and Agreement (a) it is in compliance with
      all the terms and provisions set forth in the Loan Documents 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
      9 of
      the Guaranty and 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).

     

     

    
      
        
        

      

      
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    SECTION
      5. Limited
      Effect.
      Except as expressly amended and modified by this Waiver and Agreement, each
      of
      the Existing Guaranty and 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 Waiver Effective Date, all references therein and herein to the “Loan
      Documents” shall be deemed to include, in any event, this Waiver and
      Agreement.  Each reference to the Guaranty and/or the Credit Agreement
      in any of the Loan Documents shall be deemed to be a reference to the Guaranty
      and/or the Credit Agreement as amended hereby.

     

    SECTION
      6. Counterparts.  This
      Waiver and 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.  Delivery
      of an executed counterpart of a signature page to this Waiver and Agreement
      in
      Portable Document Format (PDF) or by facsimile transmission shall be effective
      as delivery of a manually executed original counterpart thereof.

     

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

     

    [SIGNATURES
      FOLLOW]

     

     

     

    
      
        
        

      

      
        -3-

        
          

        

      

      
        
        

      

    

     

     

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

    


    
      	 	
              ANTHRACITE
                CAPITAL,
                INC., a Maryland corporation, as Guarantor and Borrower
                Agent

            
	 	 
	 	
              By:

            	
              /s/
                Richard Shea

            
	 	 	
              Name:
                Richard Shea

              Title:   
                President and Chief Operating Officer

            
	 	 


    

    


    
      	 	
              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

            
	 	 


    

     

     

    
      
        
        

        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    
 

    
      	 	
              BANK
                OF AMERICA N.A., as
                Lender

            
	 	 
	 	
              By:

            	
              /s/
                Jeffrey B. Hoyle

            
	 	 	
              Name:  Jeffrey
                B. Hoyle

              Title:   
                Managing Director