AMENDMENT NO. 2 AND REAFFIRMATION AGREEMENT
Exhibit
10.1
AMENDMENT
NO. 2 AND REAFFIRMATION AGREEMENT
AMENDMENT
NO. 2 AND REAFFIRMATION AGREEMENT, dated as of October 28, 2009 (this “Amendment”), to
Credit Agreement (as amended, modified or supplemented prior to the date hereof,
the “Credit
Agreement”), dated as of March 7, 2008, between Anthracite Capital, Inc.,
as Borrower (the “Borrower”), and
BlackRock Holdco 2, Inc., as Lender (the “Lender”). All
capitalized terms used but not defined herein shall have the same meanings
herein as in the Credit Agreement. The parties hereto hereby agree as
follows:
PREAMBLE
This Amendment memorializes the
Agreement between the Borrower and Lender on May 15, 2009 relating to the
matters set forth in this Amendment.
ARTICLE
I: AMENDMENTS
Section
1.1. Interest. Section 2.3(a) is hereby amended and restated in its
entirety as set forth below.
“(a) Loans. The
Loans shall bear interest on the unpaid principal amount thereof from the
borrowing date thereof until payment in full thereof. Interest shall
be payable in arrears on (i) in the case of Loans based on LIBOR, the last
day of each Interest Period, (ii) in the case of Loans based on the Prime
Rate, on the last Business Day of each calendar quarter commencing on June 30,
2008, (iii) the date of each prepayment (on the principal amount prepaid),
and (iv) the Final Maturity Date; provided, however, that, prior
to the Final Maturity Date, any interest shall be payable only to the extent (x)
such payments are made solely from cash flow of the Borrower’s investment in
Carbon and (y) no default or event of default under any Senior Secured Facility
(as defined in the Omnibus Amendment to Credit Agreement and Custodial and
Payment Application Agreement entered into on May 15, 2009 (the “Omnibus Amendment”)
by and among the Borrower and the other parties thereto) has occurred and is
continuing. All unpaid interest shall be payable on the Final
Maturity Date.”
Section
1.2. Unused
Fees. Section 2.12 is hereby
amended and restated in its entirety as set forth below.
“Section 2.12. Unused
Fee. Borrower shall pay to Lender a fee (the “Unused Fee”) of .15%
per annum on the daily amount by which the Commitment exceeds the outstanding
amount of the Loans. The Unused Fee shall be payable in arrears on
each June 30, September 30, December 31 and March 31, commencing June 30, 2008;
provided, however, that, prior
to the Final Maturity Date, no Unused Fee shall be payable so long as the
Omnibus Amendment prohibits such payment. All unpaid Unused Fees
shall be payable on the Final Maturity Date.”
ARTICLE
II: EFFECTIVENESS
Section
2.1. Effectiveness. Notwithstanding anything contained herein
to the contrary, this Amendment shall become effective upon Borrower’s execution
and delivery to Lender of this Amendment and shall be deemed to have been
effective as of May 15, 2009.
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ARTICLE
III: REAFFIRMATION;
REPRESENTATIONS AND WARRANTIES
Section
3.1. General. Borrower hereby ratifies, confirms and
reaffirms in all respects all of its Obligations to Lender as evidenced by the
Credit Documents and all of its Obligations to Lender arising under any other
instrument or agreement creating, evidencing, or securing any of its obligations
to Lender.
Section
3.2. Representations and
Warranties. Borrower hereby
represents and warrants to Lender that, after giving effect to this Amendment,
(a) the representations and warranties set forth in the Credit Documents are
true and correct in all material respects on and as of the date hereof, except
to the extent such representations and warranties expressly relate to an earlier
date, (b) no Default or Event of Default has occurred and is continuing, (c)
this Amendment has been duly authorized, executed and delivered by Borrower and
constitutes a legal, valid and binding obligation of Borrower, enforceable
against Borrower in accordance with its terms, and (d) no litigation has been
commenced against Borrower or any of its subsidiaries seeking to restrain or
enjoin (whether temporarily, preliminarily or permanently) the performance of
any action by Borrower required or contemplated by this Amendment, the Credit
Agreement or the Credit Documents, in each case as amended
hereby.
ARTICLE
IV: MISCELLANEOUS
Section
4.1. No
Waiver. Except as otherwise
provided herein, this Amendment shall not (a) constitute a modification,
acceptance or waiver with respect to any other term, provision or condition of
the Credit Agreement or any other instrument or agreement referred to therein,
or (b) except as contemplated hereunder, prejudice any right or remedy that
Lender may now have or may have in the future under or in connection with the
Credit Agreement or any other instrument or agreement referred to therein and
all obligations of Borrower and rights of Lender thereunder shall remain in full
force and effect.
Section
4.2. Amendment. This Amendment is a Credit
Document.
Section
4.3. Successors and
Assigns. The provisions of this
Amendment shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns, except that Borrower may not assign
or otherwise transfer any of its rights or Obligations hereunder and any
attempted assignment or transfer by Borrower shall be null and
void.
Section
4.4. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of New
York.
Section
4.5. Headings. Article and section headings are for
convenience of reference only, are not part of this Amendment and shall not
affect the construction of, or be taken into consideration in interpreting, this
Amendment.
Section
4.6. Counterparts. This Amendment may be executed in
counterparts (and by different parties hereto on different counterparts), each
of which shall constitute an original, but all of which when taken together
shall constitute a single contract. Delivery of an executed
counterpart of a signature page of this Amendment or of any other Credit
Document by telecopy shall be effective as delivery of a manually executed
counterpart of this Amendment or of such other Credit
Document.
Section
4.7. Severability. The fact that any term or provision of this
Amendment is held invalid, illegal or unenforceable as to any person in any
situation in any jurisdiction shall not affect the validity,
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enforceability
or legality of the remaining terms or provisions hereof or the validity,
enforceability or legality of such offending term or provision in any other
situation, or jurisdiction or as applied to any person.
[Signature
page follows]
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IN WITNESS WHEREOF, the
parties hereto have caused this Amendment to be duly executed by their
respective authorized officers as of the day and year first above
written.
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BORROWER:
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ANTHRACITE
CAPITAL, INC.
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By:
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/s/ Xxxx Xxxxxxxx | ||
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Name:
Xxxx
Xxxxxxxx
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Title:
Vice President
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LENDER:
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BLACKROCK
HOLDCO 2, INC.
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By:
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/s/ Xxx Xxxxx | ||
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Name: Xxx
Xxxxx
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Title: Managing
Director and Treasurer
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