EX-10.2 5 file5.htm PROMISSORY NOTE


                                 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


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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.


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     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 America or any political
     subdivision of any such state, in each case that is not removed with in
     thirty (30) days of the filing thereof.

               (vii) The occurrence of any event of default under any agreement
     between the Lender and the Borrower or instrument or paper given the Lender
     by the Borrower, whether such agreement, instrument, or paper now exists or
     hereafter arises (notwithstanding that the Lender may not have exercised
     its rights upon default under any such other agreement, instrument or
     paper).

               (viii) Any act by, against, or relating to the Borrower, or its
     property or assets, which act constitutes the application for, consent to,
     or sufferance of the appointment of a receiver, trustee or other person,
     pursuant to court action or otherwise, over all, or any part of the
     Borrower's property (in the case of an involuntary proceeding, that is not
     dismissed within 45 days of filing).

               (ix) The granting of any trust mortgage or execution of an
     assignment for the benefit of the creditors of the Borrower, or the
     occurrence of any other voluntary


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     or involuntary liquidation (in the case of an involuntary liquidation, that
     is not dismissed within 45 days of filing) or extension of debt agreement
     for the Borrower; the failure by the Borrower to generally pay the debts of
     the Borrower as they mature; adjudication of bankruptcy or insolvency
     relative to the Borrower; the entry of an order for relief or similar order
     with respect to the Borrower in any proceeding pursuant to Title 11 of the
     United States Code entitled "Bankruptcy" (hereinafter the "Bankruptcy
     Code") or any other federal bankruptcy law; the filing of any complaint,
     application, or petition by or against the Borrower initiating any matter
     in which the Borrower is or may be granted any relief from the debts of the
     Borrower pursuant to the Bankruptcy Code or any other insolvency statute or
     procedure (in the case of an involuntary proceeding, that is not dismissed
     within 45 days of filing); the calling or sufferance of a meeting of
     creditors of the Borrower; the meeting by the Borrower of a formal or
     informal creditor's committee; the offering by or entering into by the
     Borrower of any composition, extension or any other arrangement seeking
     relief or extension for the debts of the Borrower, or the initiation of any
     other judicial or non-judicial proceeding or agreement by, against or
     including the Borrower which seeks or intends to accomplish a
     reorganization or arrangement with creditors (in the case of an involuntary
     proceeding, that is not dismissed within 45 days of filing).

               (x) The entry of any judgment(s) in excess of $10 million against
     the Borrower, which judgment(s) is not satisfied or appealed from (with
     execution or similar process stayed) within fifteen (15) days of its entry.

               (xi) The entry of any final court order which enjoins, restrains
     or in any way prevents the Borrower from conducting all or any part of its
     business affairs in the ordinary course of business.

               (xii) The service of any process upon the Lender seeking to
     attach by trustee process any funds of the Borrower on deposit with the
     Lender.

               (xiv) Any change in the identity, authority or responsibilities
     of any person having management or policy authority with respect to the
     Borrower and/or any merger or direct or indirect change in the ownership of
     substantially all of the capital stock of the Borrower from that existing
     at the execution of this Agreement.

               (xv) The occurrence of any material uninsured loss, theft, damage
     or destruction to any material asset(s) of the Borrower.

               (xvi) [intentionally deleted].

               (xvii) The termination of existence, dissolution, or liquidation
     of the Borrower, or the ceasing to carry on actively any substantial part
     of the Borrower's current business.

               (xviii) The security interest granted to the Lender by the
     Borrower shall, at any time after its execution and delivery and for any
     reason, cease (A) to create a valid and perfected first priority security
     interest in and to the property purported to be subject to such agreement;
     or (B) to be in full force and effect or shall be declared null and void,
     or the validity or enforceability hereof shall be contested by the Borrower
     or any guarantor of the Borrower denies it has any further liability or
     obligation hereunder.


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               (xix) Any of the following events occur or exist with respect to
     the Borrower or any affiliate (as defined in the Employee Retirement Income
     Security Act of 1974, as amended ("ERISA")): (A) any "prohibited
     transaction" (as defined in Section 406 of ERISA or Section 4975 of the
     Internal Revenue Code) involving any Plan; (B) any "reportable event" (as
     defined in Section 4043 of ERISA and the regulations issued under such
     Section) shall occur with respect to any Plan; (C) The filing under Section
     4041 of ERISA of a notice of intent to terminate any Plan or the
     termination of any Plan; (D) any event or circumstance exists which might
     constitute grounds entitling the Pension Benefit Guaranty Corporation
     (PBGC) to institute proceedings under Section 4042 of ERISA for the
     termination of, or for the appointment of a trustee to administer, any
     Plan, or the institution by the PBGC of any such proceedings; (E) or
     partial withdrawal under Section 4201 or 4204 of ERISA from a Multiemployer
     Plan or the reorganization, insolvency, or termination of any Multiemployer
     Plan; and in each case above, such event or condition, together with all
     other events or conditions, if any, could in the opinion of the Lender
     subject the Borrower to any tax, penalty, or other liability to a Plan, a
     Multiemployer Plan, the PBGC, or otherwise.

     4. Certain Waivers, Consents and Agreements.

     Each and every party liable hereon or for the indebtedness evidenced hereby
whether as maker, endorser, guarantor, surety or otherwise hereby: (a) waives
presentment, demand, protest, suretyship defenses and defenses in the nature
thereof; (b) agrees to any substitution, exchange, release, surrender or other
delivery of any security or collateral now or hereafter held hereunder, and to
the addition or release of any other party or person primarily or secondarily
liable; (c) agrees that if any security or collateral given to secure this Note
shall be found to be unenforceable in full or to any extent, or if the Lender or
any other party shall fail to duly perfect or protect such collateral, the same
shall not relieve or release any party liable hereon or thereon nor vitiate any
other security or collateral given for any obligations evidenced hereby or
thereby; (d) agrees to pay all costs and expenses incurred by the Lender or any
other holder of this Note in connection with the collection of the indebtedness
evidenced hereby and the enforcement of rights and remedies hereunder, whether
or not suit is instituted; and (e) consents to all of the terms and conditions
contained in this Note, and all other instruments now or hereafter executed
evidencing or governing all or any portion of any security or collateral given
for this Note.

     5. Delay Not A Bar.

     No delay or omission on the part of the holder in exercising any right
hereunder or any right under any instrument or agreement now or hereafter
executed in connection herewith, or any agreement or instrument which is given
or may be given to secure the indebtedness evidenced hereby, or any other
agreement now or hereafter executed in connection herewith shall operate as a
waiver of any such right or of any other right of such holder, nor shall any
delay, omission or waiver on any one occasion be deemed to be a bar to or waiver
of the same or of any other right on any future occasion.

     6. Partial Invalidity.

     The invalidity or unenforceability of any provision hereof, or of any other
instrument, agreement or document now or hereafter executed in connection with
this Note shall not impair


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or vitiate any other provision of any of such instruments, agreements and
documents, all of which provisions shall be enforceable to the fullest extent
now or hereafter permitted by law.

     7. Compliance With Usury Laws.

     All agreements between the Borrower and the Lender are hereby expressly
limited so that in no contingency or event whatsoever, whether by reason of
acceleration of maturity of the indebtedness evidenced hereby or otherwise,
shall the amount paid or agreed to be paid to the Lender for the use or the
forbearance of the indebtedness evidenced hereby exceed the maximum permissible
under applicable law. As used herein, the term "applicable law" shall mean the
law in effect as of the date hereof, provided, however, that in the event there
is a change in the law which results in a higher permissible rate of interest,
then this Note shall be governed by such new law as of its effective date. In
this regard, it is expressly agreed that it is the intent of the Borrower and
the Lender in the execution, delivery and acceptance of this Note to contract in
strict compliance with the laws of the Commonwealth of Massachusetts from time
to time in effect. If, under or from any circumstances whatsoever, fulfillment
of any provision hereof at the time performance of such provision shall be due,
shall involve transcending the limit of validity prescribed by applicable law,
then the obligation to be fulfilled shall automatically be reduced to the limit
of such validity, and if under or from any circumstances whatsoever the Lender
shall ever receive as interest an amount which would exceed the highest lawful
rate, such amount which would be excessive interest shall be applied to the
reduction of the principal balance evidenced hereby and not to the payment of
interest. This provision shall control every other provision of all agreements
between the Borrower and the Lender.

     8. Governing Law and Consent to Jurisdiction.

     8.1. Substantial Relationship. It is understood and agreed that this Note
was negotiated and delivered in the Commonwealth of Massachusetts, which State
the parties agree has a substantial relationship to the parties and to the
underlying transactions embodied by this Note.

     8.2. Place of Delivery. The Borrower agrees to furnish to the Lender at the
Lender's office in Boston, Massachusetts all further instruments, certifications
and documents to be furnished hereunder.

     8.3. Governing Law. This Note shall in all respects be governed, construed,
applied and enforced in accordance with the internal laws of the Commonwealth of
Massachusetts without regard to principles of conflicts of law.

     8.4. Consent to Jurisdiction. The Borrower hereby consents to personal
jurisdiction in any state or Federal court located within the City of Boston,
Commonwealth of Massachusetts.

     9. Waiver of Jury Trial.

     THE BORROWER AND THE LENDER MUTUALLY HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE THE RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
BASED HEREON, ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS NOTE, OR ANY
COURSE OF CONDUCT, COURSE OF


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DEALINGS, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY. THIS
WAIVER CONSTITUTES A MATERIAL INDUCEMENT FOR THE LENDER TO ACCEPT THIS NOTE AND
MAKE THE LOAN EVIDENCED HEREBY.

     10. Security.

     This Note is secured by certain Collateral as set forth in a certain Pledge
and Security Agreement of even date.

     11. No Oral Change.

     This Note may only be amended, terminated, extended or otherwise modified
by a writing signed by the party against which enforcement is sought. In no
event shall any oral agreements, promises, actions, inactions, knowledge, course
of conduct, course of dealing, or the like be effective to amend, terminate,
extend or otherwise modify this Note.

     12. Rights of the Holder.

     This Note and the rights and remedies provided for herein may be enforced
by the Lender or any holder hereof. Wherever the context permits each reference
to the term "holder" herein shall mean and refer to the Lender or the then
holder of this Note.

     13. Survival.

     This Note shall survive and continue in full force and effect beyond and
after the payment and satisfaction of the obligations hereunder in the event
that the Lender is required to disgorge or return any payment or property
received as a result of any laws pertaining to preferences, fraudulent transfers
or fraudulent conveyances but such survival and continuation shall be limited to
the amount of such disgorgement or return.

     14. Replacement of Lost Note.

     Upon receipt of an affidavit of an officer of the Lender as to the loss,
theft, destruction or mutilation of this Note, the Borrower will issue, in lieu
thereof, a replacement Note in the same principal amount thereof and otherwise
of like tenor.

                          (signature on following page)


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     IN WITNESS WHEREOF, the Borrower has caused this Note to be duly executed
as of the date set forth above as a sealed instrument.

                                        BORROWER:

                                        ANTHRACITE CAPITAL, INC.


                                        By: /s/ Richard Shea
                                            ------------------------------------
                                            Name: Richard Shea
                                            Title: President


                   Signature Page to $50,000,000 Promissory Note