PROMISSORY NOTE
$50,000,000.00
August 27, 2007
1. Promise To Pay.
FOR VALUE RECEIVED, ANTHRACITE CAPITAL, INC., a Maryland
corporation,
having an address at 40 East 52nd Street, New York, New York 10022
(the
"Borrower"), promises to pay to the order of KEYBANK NATIONAL
ASSOCIATION, a
national banking association having an address at 127 Public
Square, Cleveland,
Ohio 44114 (the "Lender"), the principal sum of FIFTY MILLION
DOLLARS
($50,000,000.00) or so much thereof as may be advanced from time to
time, with
interest thereon, or on the amount thereof from time to time
outstanding, to be
computed, as hereinafter provided, on each advance from the date of
its
disbursement until such principal sum shall be fully paid. Interest
shall be
payable in arrears monthly on the last Business Day (as defined
below) of each
month commencing September 28, 2007 at a rate equal to the
aggregate of: (i) one
and one-half percent (1.5%); plus (ii) the LIBOR Rate (as defined
below). Any
amounts then due that are not paid within two (2) Business Days
after demand by
the Lender shall accrue interest at a rate equal to the aggregate
of: (i) four
percent (4%); plus (ii) the Variable Rate (as defined below).
Interest will be
calculated on the basis of a 360 day year and the actual number of
days elapsed.
The total principal sum, or the amount thereof outstanding,
together with any
accrued but unpaid interest, shall be due and payable in full on
November 27,
2007 (the "Initial Maturity Date") subject however to acceleration
or extension
as provided herein. As long as no Event of Default exists the
Borrower may
extend the Initial Maturity Date until February 27, 2008 (the
"Extended Maturity
Date") upon: (i) prior written notice to the Lender from the
Borrower requesting
such extension at least ten (10) days but no more than thirty (30)
days prior to
the Initial Maturity Date, and (ii) payment to the Lender of an
extension fee of
fifty (50) basis points of the then outstanding balance of this
Note. (The
initial Maturity Date and the Extended Maturity Date collectively
the "Maturity
Date".) Any amounts repaid hereunder may not be reborrowed.
2. Definitions.
As used herein the following terms shall have the following
meanings:
a. Adjusted Federal Funds Rate means the Federal Funds
Rate plus fifty
(50) basis points.
b. Business Day means any day of the year on which
offices of KeyBank
National Association are not required or authorized by law to be
closed for
business in Boston, Massachusetts. If any day on which a payment is
due is not a
Business Day, then the payment shall be due on the next day
following which is a
Business Day. Further, if there is no corresponding day for a
payment in the
given calendar month (i.e., there is no "February 30th"), the
payment shall be
due on the last Business Day of the calendar month.
c. Federal Funds Rate means, for any day, the rate per
annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) equal to the
weighted average
of the rates on overnight
1
Federal funds transactions with members of the Federal Reserve
System arranged
by Federal funds brokers on such day, as published by the Federal
Reserve Bank
of New York on the Business Day next succeeding such day; provided
that (a) if
such day is not a Business Day, the Federal Funds Rate for such day
shall be
such rate on such transactions on the next preceding Business Day
as so
published on the next succeeding Business Day, and (b) if no such
rate is so
published on such next succeeding Business Day, the Federal Funds
Rate for such
day shall be the average rate charged to the Lender on such day on
such
transactions as reasonably determined by the Lender.
d. LIBOR Rate means, the rate per annum (rounded upward,
if necessary,
to the nearest one hundred-thousandth of a percentage point) as
determined on
the basis of the offered rates for deposits in U.S. dollars for
thirty (30) days
which appears on the Telerate page 3750 (or its successor
publication) as of
11:00 a.m. London time on the day that is two London Banking Days
preceding the
first day of such loan; provided, however, if the rate described
above does not
appear on the Telerate System on any applicable interest
determination date, the
LIBOR Rate shall be the rate (rounded upwards as described above,
if necessary)
determined on the basis of the offered rates for deposits in U.S.
dollars for
thirty (30) days which are offered by four major banks in the
London interbank
market at approximately 11:00 a.m. London time, on the day that is
two (2)
London Banking Days preceding the first day of such loan as
selected by the
Lender. The principal London office of each of the four major
London banks will
be required to provide a quotation of its U.S. dollars deposit
offered rate. If
at least two such quotations are provided, the rate for that date
will be the
arithmetic mean of the quotations. If fewer than two quotations are
provided as
requested, the rate for that date will be determined on the basis
of the rates
quoted for loans in U.S. dollars to leading European banks for
thirty (30) days
offered by major banks in New York City at approximately 11:00 a.m.
New York
City time, on the day that is two London Banking Days preceding the
first day of
such loan. In the event that the Lender is unable to obtain any
such quotation
as provided above, it will be deemed that the LIBOR Rate cannot be
determined
and interest shall accrue at the Variable Rate. In the event that
the Board of
Governors of the Federal Reserve System shall impose a Reserve
Percentage with
respect to LIBOR Rate deposits of the Lender, then for any period
during which
such Reserve Percentage shall apply, the LIBOR Rate shall be equal
to the amount
determined above divided by an amount equal to 1 minus the Reserve
Percentage.
"Reserve Percentage" shall mean the maximum aggregate reserve
requirement
(including all basic, supplemental, marginal and other reserves)
which is
imposed on member banks of the Federal Reserve System against
"Euro-Currency
Liabilities" as defined in Regulation D of the Federal Reserve
Board.
e. London Banking Day means any day on which dealings in
deposits in
U.S. Dollars are transacted in the London interbank market.
f. Prime Rate means the per annum rate of interest so
designated from
time to time by KeyBank National Association as its prime rate. The
Prime Rate
is a reference rate and does not necessarily represent the lowest
or best rate
being charged to any customer.
g. Variable Rate means a per annum rate equal at all
times to the
greater of (a) Prime Rate and (b) Adjusted Federal Funds Rate.
Changes in the
Variable Rate shall be effective simultaneously with any change in
the Prime
Rate or Federal Funds Rate, as applicable.
2
3. Acceleration; Event of Default.
Upon the occurrence of any one or more of the following events
(herein,
"Events of Default"), any and all liabilities of the Borrower to
the Lender
shall become immediately due and payable, at the option of the
Lender and
without notice or demand. Upon the occurrence of any Event of
Default described
in Subsection (ix) any and all liabilities of the Borrower to the
Lender shall
become due and payable immediately without any further act on the
part of the
Lender. The occurrence of any Event of Default shall also
constitute, without
notice or demand, a default under all other agreements between the
Lender, and
the Borrower and instruments and papers given the Lender by the
Borrower,
whether such agreements, instruments, or papers now exist or
hereafter arise.:
(i) The failure by the Borrower to pay upon demand
any amount due
under this Note when due.
(ii) The failure by the Borrower to pay, when due,
any other
liabilities, obligations, or indebtedness to the Lender (the
"Obligations").
(iii) The determination by the Lender that any
representation or
warranty heretofore, now or hereafter made by the Borrower to
the Lender,
in any documents, instrument, agreement, or paper was not true
or accurate
when given in any material respect.
(iv) The occurrence of any event such that any
material
indebtedness in excess of $10 million of the Borrower from any
lender other
than the Lender could be accelerated, notwithstanding that
such
acceleration has not taken place.
(v) The occurrence of any event which would cause a
lien
creditor, as that term is defined in Section 9-102 of the U.S.
bankruptcy
code, to take priority over advances made by the Lender with
respect to any
security or collateral given to secure this Note.
(vi) A filing against or relating to the Borrower of
(A) a
federal tax lien in favor of the United States of America or
any political
subdivision of the United States of America, or (B) a state
tax lien in
favor of any state of the United States of Am
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