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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 10, 2000.
REGISTRATION NO. 333-[ ]
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
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ANTHRACITE CAPITAL, INC.
(Exact name of Registrant as specified in its charter)
MARYLAND
(State or other jurisdiction of
incorporation or organization)
13-3978906
(I.R.S. Employer Identification No.)
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345 PARK AVENUE, 29TH FLOOR
NEW YORK, NY 10154
(212) 754-5560
(Address, Including Zip Code, and Telephone Number, Including Area Code,
of each Registrant's Principal Executive Offices)
------------------------------
HUGH R. FRATER
PRESIDENT
ANTHRACITE CAPITAL, INC.
345 PARK AVENUE, 29TH FLOOR
NEW YORK, NY 10154
(212) 754-5560
(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent for Service)
COPY TO:
VINCENT J. PISANO, ESQ.
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
FOUR TIMES SQUARE
NEW YORK, NEW YORK 10036
(212) 735-3000
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
FROM TIME TO TIME AFTER THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box: / /
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF AMOUNT TO AGGREGATE OFFERING REGISTRATION
SECURITIES TO BE REGISTERED BE REGISTERED PRICE(1)(2) FEE(1)(2)
<S> <C> <C> <C>
Common Stock, $.001 par value(3)............................ 4,081,633
10.5% Series A Senior Cumulative Convertible Redeemable
Preferred Stock, $.001 par value(3)....................... 1,200,000
Total....................................................... $200,000,000 $52,800
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457.
(2) Shares of 10.5% Series A Senior Cumulative Convertible Redeemable Preferred
Stock are convertible into shares of Common Stock. Accordingly, only one
registration fee for these securities has been paid in accordance with Rule
457(i).
(3) Also includes such indeterminate number of shares of Common Stock as may be
issued from time to time at indeterminate prices pursuant to the
anti-dilution provisions of the Preferred Stock.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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PROSPECTUS
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE OR THE
SELLING SHAREHOLDER MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION
STATEMENT FILED WITH THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS
PROSPECTUS IS NOT AN OFFER TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN
OFFER TO BUY THESE SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT
PERMITTED.
<PAGE>
ANTHRACITE CAPITAL, INC.
10.5% SERIES A
SENIOR CUMULATIVE CONVERTIBLE REDEEMABLE PREFERRED STOCK
AND COMMON STOCK
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This prospectus relates to the sale by a selling shareholder of up to
1,200,000 shares of our 10.5% Series A Senior Cumulative Convertible Redeemable
Preferred Stock or common stock into which it is convertible.
REFERENCES IN THIS PROSPECTUS OR ANY ACCOMPANYING PROSPECTUS SUPPLEMENT TO
"ANTHRACITE," "WE," "US," OR "OUR" REFER TO ANTHRACITE CAPITAL, INC. REFERENCES
IN THIS PROSPECTUS OR ANY ACCOMPANYING PROSPECTUS SUPPLEMENT TO THE "SELLING
SHAREHOLDER" REFER TO RECP II ANTHRACITE, LLC.
WE URGE YOU TO READ THIS PROSPECTUS AND ANY ACCOMPANYING PROSPECTUS
SUPPLEMENT, WHICH WILL DESCRIBE THE SPECIFIC TERMS OF THE COMMON STOCK AND THE
PREFERRED STOCK, CAREFULLY BEFORE YOU MAKE YOUR INVESTMENT DECISION.
------------------------
Our common stock is listed on the New York Stock Exchange under the symbol
"AHR".
We are paying the costs of preparing and filing the registration statement
of which this prospectus and any accompanying prospectus supplement form a part.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
------------------------
THIS PROSPECTUS MAY NOT BE USED TO SELL SECURITIES UNLESS ACCOMPANIED BY A
PROSPECTUS SUPPLEMENT.
The date of this prospectus is March , 2000
<PAGE>
ABOUT THIS PROSPECTUS
This prospectus relates to the sale by a selling shareholder of up to
1,200,000 shares of our 10.5% Series A Senior Cumulative Convertible Redeemable
Preferred Stock, which we refer to as the Series A preferred stock, or the
number of shares of our common stock into which the Series A preferred stock is
convertible. The selling shareholder may sell any combination of the securities
described in this prospectus in one or more offerings. This prospectus provides
you with a general description of the securities the selling shareholder may
offer. Each time the selling shareholder sells the securities, the selling
shareholder will provide a prospectus supplement that will contain specific
information about the terms of that offering. You should read this prospectus
and any accompanying prospectus supplement together with additional information
described under the heading "Where You Can Find More Information."
WHERE YOU CAN FIND MORE INFORMATION
We file reports, proxy statements, and other information with the SEC. Such
reports, proxy statements, and other information concerning us can be read and
copied at the SEC's Public Reference Room at 450 Fifth Street, N.W., Washington,
D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information on the
Public Reference Room. The SEC maintains an internet site at http://www.sec.gov
that contains reports, proxy and information statements and other information
regarding issuers that file electronically with the SEC, including ours. Our
common stock is listed and traded on the New York Stock Exchange. These reports,
proxy statements and other information are also available for inspection at the
offices of the NYSE, 20 Broad Street, New York, New York 10005.
This prospectus is part of a registration statement filed with the SEC by
us. The full registration statement can be obtained from the SEC as indicated
above, or from us.
The SEC allows us to "incorporate by reference" the information we file with
the SEC. This permits us to disclose important information to you by referencing
these filed documents. Any information referenced this way is considered part of
this prospectus, and any information filed with the SEC subsequent to this
prospectus will automatically be deemed to update and supersede this
information. We incorporate by reference the following documents which have been
filed with the SEC:
- the description of our common stock contained in our registration
statement on Form 8-A dated March 5, 1998,
- Annual Report on Form 10-K for the period from March 24, 1998
(commencement of operations) to December 31, 1998,
- Quarterly Reports on Form 10-Q for the fiscal quarters ended March 31,
1999, June 30, 1999 and September 30, 1999,
- Current Report on Form 8-K dated December 2, 1999 and
- Current Report on Form 8-K dated February 16, 2000.
We incorporate by reference the documents listed above and any future
filings made with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
Exchange Act of 1934 from the date of this prospectus until we file a
post-effective amendment which indicates the termination of the offering of the
securities made by this prospectus.
Any statement contained in a document incorporated or considered to be
incorporated by reference in this prospectus shall be considered to be modified
or superseded for purposes of this prospectus to the extent that a statement
contained in this prospectus or any prospectus supplement or in any subsequently
filed document that is or is considered to be incorporated by reference modifies
or
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supersedes the statement. Any statement that is so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
prospectus.
We will provide without charge upon written or oral request, a copy of any
or all of the documents which are incorporated by reference to this prospectus,
other than exhibits which are specifically incorporated by reference into such
documents. You may direct your requests to Investor Relations, Anthracite
Capital, Inc., 345 Park Avenue, 29th Floor, New York, New York 10154 (telephone
number (212) 409-3333).
CAUTIONARY STATEMENT CONCERNING FORWARD-LOOKING STATEMENTS
Some statements contained or incorporated by reference in this prospectus or
any prospectus supplement constitute forward-looking statements as such term is
defined in Section 27A of the Securities Act and Section 21E of the Exchange
Act. Some factors could cause actual results to differ materially from those in
the forward-looking statements. Factors that might cause such a material
difference include, but are not limited to:
(a) changes in the general economic climate,
(b) termination of the management agreement,
(c) interest rate fluctuations,
(d) our failure to qualify as a REIT and
(e) general competitive factors.
ANTHRACITE CAPITAL, INC. AND THE MANAGER
Anthracite Capital, Inc., a Maryland corporation, was formed in
November 1997 to invest in multifamily, commercial and residential mortgage
loans, mortgage-backed securities and other real estate related assets in both
U.S. and non-U.S. markets. We have elected to be taxed as a real estate
investment trust under the Internal Revenue Code of 1986, as amended, and we
will generally not be subject to Federal income tax to the extent that we
distribute our net income to our stockholders and qualify for taxation as a
REIT. Our operations are managed by BlackRock Financial Management, Inc. which
is referred to in this prospectus as the Manager. We have no ownership interest
in the Manager.
The Manager is a subsidiary of PNC Bank, National Association, which is
itself a wholly owned subsidiary of PNC Bank Corp. Established in 1988, the
Manager is a registered investment adviser under the Investment Advisers Act of
1940 and is one of the largest fixed-income investment management firms in the
United States. The Manager engages in investment and risk management as its sole
businesses and specializes in the management of domestic and offshore
fixed-income assets for pension and profit sharing plans, financial institutions
such as banking and insurance companies and mutual funds for retail and
institutional investors.
The address of the Manager is 345 Park Avenue, 29(th) Floor, New York, New
York 10154.
USE OF PROCEEDS
We will not receive any of the proceeds of sales by the selling shareholder.
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RATIO OF EARNINGS TO FIXED CHARGES
The following table displays our ratio of earnings to fixed charges.
<TABLE>
<CAPTION>
FOR THE PERIOD
MARCH 24, 1998 NINE MONTHS
THROUGH ENDED
DECEMBER 31, 1998 SEPTEMBER 30, 1999
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<S> <C> <C>
Ratio of earnings to fixed charges.......................... 0.94x 2.41x
</TABLE>
Earnings were inadequate to cover fixed charges (loss of $1.4 million) for
the period from March 24, 1998 (commencement of operations) to December 31,
1998. The additional earnings required to pay fixed charges is $45,000. The loss
included a non-recurring realized loss primarily from the sale of securities, of
$18.44 million. Excluding the non-recurring loss, the ratio of earnings to fixed
charges would have been 1.72x. Earnings were adequate to cover fixed charges for
the nine months ended September 30, 1999.
RECENT DEVELOPMENTS
On February 16, 2000, we announced that we had signed a definitive merger
agreement with CORE Cap, Inc., a privately owned mortgage real estate investment
trust that is externally managed by GMAC Mortgage Asset Management, Inc., a
subsidiary of GMAC Mortgage Corporation. The merger agreement provides for our
acquiring 100% of the outstanding common shares of CORE Cap for our common
shares, using an exchange ratio based upon the respective net asset values
attributable to each company's common stock. At December 31, 1999, CORE Cap had
equity capital of approximately $90 million, comprised of common stock and
$56.5 million par amount of 10% perpetual, cumulative convertible preferred
stock. If the merger is consummated, CORE Cap's preferred stock will be
exchanged for a new series of our preferred stock with substantially identical
terms. At December 31, 1999, CORE Cap had assets of approximately $1.4 billion,
comprised of investment grade quality residential loans and mortgage backed
securities including agency securities. We expect that the merger, which is
structured as a taxable stock-for-stock transaction, will close in the first
half of 2000, subject to the approval of CORE Cap shareholders. The boards of
directors of CORE Cap and Anthracite have approved the merger as well as the
management of the merged company by BlackRock Financial Management, Inc., a
subsidiary of BlackRock, Inc. In connection with the merger, our board of
directors would be expanded to include two current representatives of the board
of CORE Cap, including a representative of GMAC Mortgage.
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RISK FACTORS
You should carefully consider each of the following risks and all of the
other information set forth in this prospectus before deciding to invest in our
securities. Some of the following risks relate principally to our business in
general and the industry in which we operate. Other risks relate principally to
the securities markets and ownership of our securities. The risks and
uncertainties described below are not the only ones facing our company.
Additional risks and uncertainties not presently known to us or that we
currently believe to be immaterial may also adversely affect our business.
If any of the following risks and uncertainties develop into actual events,
our business, financial condition or results of operations could be materially
adversely affected. In such case, the trading price of our securities could
decline, and you may lose all or part of your investment.
This prospectus contains forward-looking statements that involve risks and
uncertainties. Our actual results could differ materially from those anticipated
in these forward-looking statements as a result of certain factors, including
the risks faced by us described below and elsewhere in this prospectus.
RISKS RELATED TO OUR BUSINESS
INTEREST RATE FLUCTUATIONS MAY ADVERSELY AFFECT THE VALUE OF MORTGAGE ASSETS AND
NET INCOME WHICH COULD HAVE NEGATIVE EFFECTS ON THE MARKET PRICE OF OUR COMMON
STOCK.
Interest rates are highly sensitive to many factors, including governmental
monetary and tax policies, domestic and international economic and political
considerations and other factors beyond our control. Interest rate fluctuations
can adversely affect the income and value of our common stock in many ways and
present a variety of risks, including the risk of a mismatch between asset
yields and borrowing rates, variances in the yield curve and changing prepayment
rates. These risks may cause a decline in the price of our common stock.
Our operating results will depend in large part on differences between the
income from our assets, net of credit losses, and our borrowing costs. We fund a
substantial portion of our assets with borrowings which have interest rates that
reset monthly or quarterly. We anticipate that, in most cases, the income from
our assets will respond more slowly to interest rate fluctuations than the cost
of our borrowings, creating a potential mismatch between asset yields and
borrowing rates. Consequently, changes in interest rates, particularly
short-term interest rates, may significantly influence our net income. Increases
in these rates will tend to decrease our net income as well as the market value
of our net assets. Interest rate fluctuations that result in our interest
expense exceeding interest income would result in our incurring operating
losses.
The relationship between short-term and long-term interest rates is often
referred to as the "yield curve." Ordinarily, short-term interest rates are
lower than long-term interest rates. If short-term interest rates rise
disproportionately relative to long-term interest rates, thereby flattening the
yield curve, our borrowing costs may increase more rapidly than the interest
income earned on our assets. Because our borrowings will primarily bear interest
at short-term rates and our assets will primarily bear interest at medium-term
to long-term rates, a flattening of the yield curve will tend to decrease our
net income as well as the market value of our net assets. In addition, to the
extent cash flows from long-term assets that return scheduled and unscheduled
principal are reinvested, the spread between the yields of the new assets and
available borrowing rates may decline and also may tend to decrease the net
income and market value of our net assets. It is also possible that short-term
interest rates may adjust relative to long-term interest rates such that the
level of short-term rates exceeds the level of long-term rates. In this case,
borrowing costs may exceed the interest income and we could incur operating
losses.
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DUE TO PREPAYMENT RATE FLUCTUATIONS, OUR YIELDS ON INVESTMENTS MAY DECREASE,
WHICH COULD HAVE AN ADVERSE EFFECT ON OUR BUSINESS, FINANCIAL CONDITION OR
RESULTS OF OPERATIONS.
The value of our assets may be affected substantially by prepayment rates on
mortgage assets. Prepayment rates on mortgage assets are influenced by changes
in current interest rates and a variety of economic, geographic and other
factors beyond our control, and consequently, we cannot precisely predict
prepayment rates. In periods of declining mortgage interest rates, prepayments
on mortgage assets generally increase. If general interest rates decline as
well, we are likely to reinvest the proceeds of prepayments received during
these periods in assets yielding less than the yields on the mortgage assets
that were prepaid. In addition, the market value of the mortgage assets may,
because of the risk of prepayment, benefit less from declining interest rates
than from other fixed-income securities. Conversely, in periods of rising
interest rates, prepayments on mortgage assets generally decrease, in which case
we would not have the prepayment proceeds available to invest in assets with
higher yields. Consequently, the interplay of prepayment and interest rate
fluctuations may cause us to fail to recoup fully our cost of acquisition of
certain investments.
OUR INVESTMENTS IN CERTAIN TYPES OF MORTGAGE BACKED SECURITIES PRESENT RISKS OF
LOSS WHICH COULD HAVE AN ADVERSE EFFECT ON OUR BUSINESS, FINANCIAL CONDITION OR
RESULTS OF OPERATIONS.
We may acquire IOs, which are classes of mortgage backed securities that are
entitled to payments of interest, but only to nominal payments or no payments of
principal. The yield to maturity of IOs is very sensitive to the rate of
prepayments on the underlying mortgage loans. If the rate of prepayments is
faster than anticipated, the yield on IOs will be negatively affected, and, in
extreme cases, the IO investment could become worthless. Some IOs bear interest
at a floating rate that varies inversely with and often at a multiple of changes
in a specified interest rate index. We refer to these IOs as Inverse IOs.
Therefore, the yield to maturity of an Inverse IO is extremely sensitive to
changes in the related index. We also expect to invest in subordinated IOs, or
Sub IOs. Interest amounts otherwise allocable to Sub IOs generally are used to
make payments on more senior classes or to fund a reserve account for the
protection of senior classes until over-collateralization occurs or the balance
in the reserve account reaches a specified level. The yield to maturity of Sub
IOs is very sensitive not only to default losses but also to the rate and timing
of prepayment on the underlying loans. Consequently, the interplay of prepayment
and interest rate fluctuations may cause us to fail to recoup fully the cost of
acquiring IOs, Inverse IOs and Sub IOs.
We may also acquire POs, which are classes of mortgage backed securities
that are entitled to payments of principal, but not to payments of interest. The
yield to maturity of POs and on classes of mortgage backed securities that are
purchased at a discount to their principal balance is very sensitive to changes
in the weighted average life of these securities, which in turn is dictated by
the rate of prepayments on the underlying mortgage collateral. In periods of
declining interest rates, rates of prepayment on mortgage loans generally
increase, and if the rate of prepayments is faster than anticipated, the yield
on POs and securities purchased at a discount will be positively affected.
Conversely, the yield on POs and securities purchased at a discount will be
affected adversely by slower than anticipated prepayment rates, which generally
are associated with a rising interest rate environment.
OUR INVESTMENT IN SUBORDINATED MORTGAGE BACKED SECURITIES PRESENTS RISKS OF LOSS
WHICH COULD HAVE AN ADVERSE EFFECT ON OUR BUSINESS, FINANCIAL CONDITION OR
RESULTS OF OPERATIONS.
We have acquired and intend to acquire a significant amount of
non-investment grade mortgage assets, including unrated "first loss" credit
support subordinated interests. A first loss security is the most subordinate
class in a structure and accordingly is the first to bear the loss upon a
default on restructuring or liquidation of the underlying collateral and the
last to receive payment of interest and principal. These classes are subject to
special risks, including a substantially greater risk of loss of
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principal and non-payment of interest than more senior, rated classes. The
market values of subordinated interests tend to be more sensitive to changes in
economic conditions than more senior, rated classes. As a result of these and
other factors, subordinated interests generally are not actively traded and may
not provide holders of these interests with liquidity of investment. The yield
to maturity on subordinated interests of the type we acquire or will acquire
will be extremely sensitive to the default and loss experience of the underlying
mortgage loans and the timing of any such defaults or losses. Because these
types of subordinated interests generally have no credit support, to the extent
there are realized losses on the mortgage loans, we may not recover the full
amount or, in extreme cases, any of our initial investment in these subordinated
interests.
IF WE CANNOT OBTAIN SPECIAL SERVICING RIGHTS FOR SUBORDINATED MORTGAGE BACKED
SECURITIES WE HAVE INVESTED IN, OUR INTERESTS IN THESE SUBORDINATED MORTGAGE
BACKED SECURITIES MAY BE ADVERSELY AFFECTED.
When we acquire a subordinated mortgage backed security, we typically will
be unable to obtain the right to service the underlying performing mortgage
loans, referred to as the mortgage collateral. To minimize our losses, we will
seek to obtain the rights to service the underlying mortgage collateral in
default. In many cases, we will not be able to obtain these special servicing
rights on acceptable terms. If we do acquire special servicing rights, then we
will contract with a third-party special servicer to perform the special
servicing functions, and thus the performance of our investments will be
dependent upon the third party's performance. If we do not obtain special
servicing rights with respect to the mortgage collateral underlying our mortgage
backed securities, the servicer of the mortgage collateral generally would be
responsible to holders of the senior classes of mortgage backed securities,
whose interests may not be the same as those of the holders of the subordinated
classes. Accordingly, the mortgage collateral may not be serviced in a manner
that is most advantageous to us as the holder of a subordinated class.
BECAUSE OF THE RISKS OF BORROWER DEFAULTS, OUR INVESTMENT IN MORTGAGE LOANS IS
RISKY AND WE MAY INCUR LOSSES ON OUR INVESTMENTS IN MORTGAGE LOANS DUE TO THESE
RISKS.
We acquire and accumulate and may securitize mortgage loans as part of our
investment strategy. While holding mortgage loans, we will be subject to risks
of borrower defaults, bankruptcies, fraud and losses and special hazard losses
that are not covered by standard hazard insurance. Also, the costs of financing
and hedging the mortgage loans could exceed the interest income on the mortgage
loans. In the event of any default under mortgage loans we hold, we will bear
the risk of loss of principal to the extent of any deficiency between the value
of the mortgage collateral and the principal amount of the mortgage loan. It may
not be possible or economical for us to securitize all of the mortgage loans
that we acquire, in which case we will continue to hold the mortgage loans and
bear the risks of borrower defaults, bankruptcies, fraud losses and special
hazard losses.
OUR INVESTMENTS IN MULTIFAMILY AND COMMERCIAL LOANS INVOLVE A GREATER RISK OF
LOSS THAN SINGLE FAMILY LOANS WHICH MAY ADVERSELY AFFECT OUR BUSINESS, FINANCIAL
CONDITION OR RESULTS OF OPERATIONS.
Multifamily and commercial real estate lending is considered to involve a
higher degree of risk than single family residential lending because of a
variety of factors, including generally larger loan balances, dependency for
repayment on successful operation of the mortgaged property and tenant
businesses operating therein, and loan terms that include amortization schedules
longer than the stated maturity which provide for balloon payments at stated
maturity rather than periodic principal payments. In addition, the value of
multifamily and commercial real estate can be affected significantly by the
supply and demand in the market for that type of property. Any loss we
experience on our multifamily and commercial loan investments could negatively
affect our business, financial condition or results of operations.
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THE VOLATILITY OF VALUES OF MORTGAGED PROPERTIES MAY AFFECT ADVERSELY OUR
MORTGAGE LOANS.
Commercial and multifamily property values and net operating income derived
from commercial and multifamily properties are subject to volatility and may be
affected adversely by a number of factors, including, but not limited to,
- national, regional and local economic conditions, which may be adversely
affected by plant closings, industry slowdowns and other factors;
- local real estate conditions, such as an oversupply of housing, retail,
industrial, office or other commercial space;
- changes or continued weakness in specific industry segments;
- perceptions by prospective tenants, retailers and shoppers of the safety,
convenience, services and attractiveness of the property;
- the willingness and ability of the property's owner to provide capable
management and adequate maintenance;
- construction quality, age and design;
- demographic factors;
- retroactive changes to building or similar codes; and
- increases in operating expenses, such as energy costs.
If commercial and multifamily property values and related income decline,
our business, financial conditions or results of operations may be adversely
affected.
WE INVEST IN LIMITED RECOURSE LOANS WHICH MAY LIMIT THE RECOVERY ON OUR
INVESTMENTS TO THE VALUE OF THE MORTGAGED PROPERTY.
Some of the mortgage loans we acquire may contain limitations on the
mortgagee's recourse against the borrower. In other cases, the mortgagee's
recourse against the borrower may be limited by applicable provisions of the
laws of the jurisdictions in which the mortgaged properties are located or by
the mortgagee's selection of remedies and the impact of those laws on that
selection. In those cases, in the event of a borrower default, recourse may be
limited to only the specific mortgaged property and other assets, if any,
pledged to secure the relevant mortgage loan. As to those mortgage loans that
provide for recourse against the borrower and its assets generally, we cannot
assure you that this recourse will provide us a recovery in respect of a
defaulted mortgage loan greater than the liquidation value of the mortgaged
property securing that mortgage loan.
OUR INVESTMENTS IN CONSTRUCTION, BRIDGE AND MEZZANINE LOANS INVOLVE GREATER
RISKS OF LOSS THAN LOANS SECURED BY INCOME PRODUCING PROPERTIES WHICH MAY
ADVERSELY AFFECT OUR BUSINESS, FINANCIAL CONDITION OR RESULTS OF OPERATIONS.
We may acquire construction loans, bridge loans and mezzanine loans. These
types of mortgage loans are considered to involve a higher degree of risk than
long-term senior mortgage lending secured by income-producing real property.
This is because of a variety of factors, including, in the case of construction
loans,
- dependency on successful completion and operation of the project for
repayment,
- difficulties in estimating construction or rehabilitation costs and
- loan terms that often require little or no amortization, providing instead
for additional advances to be made and for a balloon payment at a stated
maturity date.
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In the case of mezzanine loans, the factors would include, among other
things, that a foreclosure by the holder of the senior loan could result in a
mezzanine loan becoming unsecured. Accordingly, we may not recover some or all
of our investment in the mezzanine loan. In addition, construction loans, bridge
loans and mezzanine loans may have higher loan to value ratios than conventional
mortgage loans because of shared appreciation provisions. Any of these factors
may cause us to be materially adversely affected.
BECAUSE WE INVEST IN DISTRESSED MORTGAGE LOANS WHICH MAY HAVE GREATER DEFAULT
RISKS THAN PERFORMING LOANS, WE MAY EXPERIENCE LOSS ON SOME OR ALL OF THESE
INVESTMENTS.
We may acquire nonperforming and subperforming mortgage loans, as well as
mortgage loans that have had a history of delinquencies. These mortgage loans
presently may be in default or may have a greater than normal risk of future
defaults and delinquencies, as compared to newly originated, high quality loans.
Returns on an investment of this type depend on the borrower's ability to make
required payments or, in the event of default, the ability of the loan's
servicer to foreclose and liquidate the mortgaged property underlying the
mortgage loan. We cannot assure you that the servicer can liquidate a defaulted
mortgage loan successfully or in a timely fashion, in which case our returns on
these investments would be negatively impacted.
WE INVEST IN FOREIGN MORTGAGE LOANS AND REAL PROPERTIES WHICH ARE SUBJECT TO
CURRENCY CONVERSION RISKS, FOREIGN TAX LAWS AND THE GENERAL UNCERTAINTY OF
FOREIGN LAWS.
We may invest in real property, or mortgage loans secured by real property,
located outside the united states. Investing in real property located in foreign
countries creates risks associated with the uncertainty of foreign laws and
markets. Moreover, investments in foreign assets may be subject to currency
conversion risks. In addition, income from investment in foreign real property
and, in some instances, foreign mortgage loans may be subject to tax by foreign
jurisdictions, which would reduce the economic benefit of such investments. Any
of these risks may negatively impact any returns on foreign investments, which
could adversely affect our business, financial conditions or results of
operations.
INVESTMENTS IN REAL PROPERTY MAY NOT GENERATE ANTICIPATED REVENUES.
Distressed real properties may have significant amounts of unleased space
and thus may not generate revenues sufficient to pay operating expenses and meet
debt service obligations. The value of our investments in real property and our
income and ability to make distributions to our stockholders will be dependent
upon the ability of the Manager to hire and supervise capable property managers
to operate the real property in a manner that maintains or increases revenues in
excess of operating expenses and debt service. Our revenues from real property
may be affected adversely by:
- changes in national or local economic conditions,
- competition from other properties offering the same or similar attributes,
- changes in interest rates and in the availability,
- cost and terms of mortgage funds,
- the impact of present or future environmental legislation and compliance
with environmental laws,
- the ongoing need for capital improvements, particularly in older
structures,
- changes in real estate tax rates and other operating expenses,
- adverse changes in governmental rules and fiscal policies,
- civil unrest,
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- acts of God, including earthquakes, hurricanes and other natural
disasters, which may result in uninsured or underinsured losses,
- acts of war,
- adverse changes in zoning laws, and
- other factors that will be beyond our control.
Although our insurance will not cover all losses, we maintain comprehensive
casualty insurance on our real property, including liability and fire and
extended coverage, in amounts sufficient to permit replacement in the event of a
total loss, subject to applicable deductibles. We will endeavor to obtain
coverage of the type and in the amount customarily obtained by owners of
properties similar to our real property. There are certain types of losses,
however, generally of a catastrophic nature, such as earthquakes, floods and
hurricanes, that may be uninsurable or not economically insurable. Inflation,
changes in building codes and ordinances, environmental considerations,
provisions in loan documents encumbering properties that have been pledged as
collateral security for loans, and other factors also might make it economically
impractical to use insurance proceeds to replace a property if it is damaged or
destroyed. Under such circumstances, the insurance proceeds we received, if any,
might not be adequate to restore our investment with respect to the affected
property. If we do not receive enough insurance proceeds to cover our
investments, our business, financial condition or results of operations may be
adversely affected.
OUR REAL PROPERTY INVESTMENTS MAY BE ADVERSELY AFFECTED BY TAX RATE FLUCTUATIONS
OR NEGATIVE TAX ASSESSMENTS.
All real property we own will be subject to real property taxes and, in some
instances, personal property taxes. Such real and personal property taxes may
increase or decrease as property tax rates change and as the properties are
assessed or reassessed by taxing authorities. An increase in property taxes on
our real property could adversely affect our income and ability to make
distributions to our stockholders and could decrease the value of that real
property.
OUR SALES OF SECURITIES AND ASSETS THROUGH REVERSE REPURCHASE AGREEMENTS AND
DOLLAR ROLL AGREEMENTS ARE SUBJECT TO RISKS WHICH MAY ADVERSELY AFFECT US.
Reverse repurchase agreements involve sales by us of portfolio assets,
concurrently with an agreement by us to repurchase such assets at a later date
at a fixed price. During the reverse repurchase agreement period, we continue to
receive principal and interest payments on those portfolio assets and also have
the opportunity to earn a return on the collateral furnished by the counterparty
to secure its obligation to redeliver the securities. Dollar rolls are
transactions in which we sell securities for delivery in the current month and
simultaneously contract to repurchase substantially similar securities on a
specified future date. During the roll period, we forgo principal and interest
paid on the securities. We are compensated by the difference between the current
sales price and the forward price for the future purchase, as well as by the
interest earned on the cash proceeds of the initial sale. Reverse repurchase
agreements and dollar roll agreements involve the risk that the market value of
the securities we retain may decline below the price of the securities we have
sold but are obligated to repurchase under the agreement. In that event, we may
incur significant losses. In addition, if the buyer of securities under a
reverse repurchase agreement or dollar roll agreement files for bankruptcy or
becomes insolvent, our use of the proceeds of the agreement may be restricted
pending a determination by the other party or its trustee or receiver whether to
enforce our obligation to repurchase the securities.
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OUR SIGNIFICANT INDEBTEDNESS MAY CAUSE US TO INCUR SIGNIFICANT LOSSES.
We incur indebtedness in the conduct of our business. We leverage our assets
primarily with reverse repurchase agreements, dollar rolls, securitizations of
mortgage loans and secured and unsecured loans, including the issuance of
commercial paper. The terms of the indebtedness may require us to pay a fixed or
adjustable rate of interest, and may provide for any term to maturity that we
deem appropriate. Our indebtedness may reduce the net income available for
distributions to stockholders. If the interest income on the assets purchased
with borrowed funds fails to cover the cost of the borrowings, we will
experience net interest losses and may experience net losses and erosion or
elimination of our equity.
IF WE ARE UNABLE TO INCUR ADDITIONAL INDEBTEDNESS, OUR INVESTMENT OBJECTIVES MAY
BE NEGATIVELY AFFECTED.
Our ability to achieve our investment objectives depends to a significant
extent on the ability to borrow money in sufficient amounts and on sufficiently
favorable terms to earn incremental returns. We may not be able to achieve the
degree of leverage we believe to be optimal due to:
- decrease in the proportion of the value of our assets that we can borrow
against,
- decreases in the market value of our assets,
- increases in interest rates,
- changes in the availability of financing in the market, and
- conditions then applicable in the lending market and other factors.
This may cause us to experience losses or less profits than would otherwise
be the case.
IF WE CANNOT REPAY OUR INDEBTEDNESS OR IF WE ARE REQUIRED TO PROVIDE ADDITIONAL
COLLATERAL TO SECURE THE INDEBTEDNESS, OUR BUSINESS, FINANCIAL CONDITIONS OR
RESULTS OF OPERATIONS MAY BE ADVERSELY AFFECTED.
A substantial portion of our borrowings are in the form of collateralized
borrowings. If the value of the assets pledged to secure such borrowings were to
decline, we would be required to post additional collateral, reduce the amount
borrowed or suffer forced sales of the collateral. If sales were made at prices
lower than the carrying value of the collateral, we would experience additional
losses. If we are forced to liquidate qualified REIT real estate assets to repay
borrowings, we cannot assure you that we will be able to maintain compliance
with the REIT provisions of the Internal Revenue Code regarding asset and source
of income requirements.
HEDGING TRANSACTIONS MAY LIMIT OUR GAINS AND INCREASE EXPOSURE TO LOSSES.
We enter into hedging transactions primarily to protect ourselves from the
effect of interest rate fluctuations on our floating rate debt and also to
protect our portfolio of mortgage assets from interest rate and prepayment rate
fluctuations. We cannot assure you that our hedging activities will have the
desired beneficial impact on our results of operations or financial condition.
Moreover, no hedging activity can completely insulate us from the risks
associated with changes in interest rates and prepayment rates.
Hedging involves risk and typically involves costs, including transaction
costs. These costs increase dramatically as the period covered by the hedging
increases and during periods of rising and volatile interest rates. We may
increase our hedging activity and, thus, increase our hedging costs, during
periods when interest rates are volatile or rising. The incurrence of these
costs will limit the amount of cash available for distributions to stockholders.
We intend generally to hedge as much of the interest rate risk as the Manager
determines is in the best interests of our stockholders given the cost of
hedging transactions and the need to maintain our status as a REIT.
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We have not established specific policies as to the extent of the hedging
transactions in which we engage; however, the members of our board of directors
unaffiliated with the Manager will be responsible for reviewing at their regular
meetings the extent and effect of hedging activities. The amount of income we
may earn from hedging instruments is subject to limitations under the REIT
provisions of the Internal Revenue Code. These limitations may result in the
Manager electing to have us bear a level of interest rate risk that could
otherwise be hedged when the Manager believes, based on all relevant facts, that
bearing the risk is advisable to maintain our status as a REIT.
Hedging instruments often are not traded on regulated exchanges, guaranteed
by an exchange or its clearing house, or regulated by any U.S. or foreign
governmental authorities. Consequently, there are no requirements with respect
to record keeping, financial responsibility or segregation of customer funds and
positions. The business failure of a counterparty with which we have entered
into a hedging transaction will most likely result in a default. Default by a
party with which we have entered into a hedging transaction may result in the
loss of unrealized profits and force us to cover our resale commitments, if any,
at the then current market price. Although generally we will seek to reserve for
ourselves the right to terminate our hedging positions, it may not always be
possible to dispose of or close out a hedging position without the consent of
the counterparty, and we may not be able to enter into an offsetting contract in
order to cover our risk. If a liquid secondary market does not exist for hedging
instruments purchased or sold, we may be required to maintain a position until
exercise or expiration, which could result in losses.
IF WE FAIL TO MAINTAIN REIT STATUS, WE WOULD EXPERIENCE ADVERSE TAX
CONSEQUENCES.
In order to maintain our qualification as a REIT for federal income tax
purposes, we must continually satisfy certain tests with respect to the sources
of our income, the nature of our assets, the amount of our distributions to
stockholders and the ownership of our stock. If we fail to qualify as a REIT in
any tax year, we would be taxed as a regular domestic corporation. In that
event, we would be subject to federal income tax (including any applicable
alternative minimum tax) on our taxable income at regular corporate rates, and
distributions to our stockholders would not be deductible by us in computing our
taxable income. Corporate tax liability of this nature could be substantial and
would reduce the amount of cash available for distribution to our stockholders,
which in turn could have an adverse effect on the value of, and trading prices
for, our common stock. In addition, the unremedied failure to be treated as a
REIT for any one year would disqualify us from being treated as a REIT for the
four subsequent years.
IF WE VIOLATE INTERNAL REVENUE CODE RESTRICTIONS ON HEDGING AND BORROWING, WE
MAY BE LIABLE FOR SUBSTANTIAL PENALTIES.
The REIT provisions of the Internal Revenue Code may limit our ability to
hedge our assets and related borrowings. Under the REIT provisions, we must
limit our income in each year from qualified hedges, together with any other
income generated from other than qualifying real estate assets, to less than 25%
of our gross income. As a result, we may have to limit our use of certain
hedging techniques that might otherwise be advantageous. Any limitation on our
use of hedging techniques may result in greater interest rate risk. If we were
to receive income from qualified hedges in excess of the 25% limitation, we
could incur payment of a penalty tax equal to the amount of income in excess of
those limitations, or in the case of a willful violation, loss of REIT status
for federal tax purposes.
IF WE VIOLATE INTERNAL REVENUE CODE RESTRICTIONS RELATING TO THE CLASSIFICATION
OF OUR ASSETS AND INVESTMENTS, WE MAY BE LIABLE FOR SUBSTANTIAL PENALTIES.
We must also ensure that at the end of each calendar quarter at least 75% of
the value of our assets consists of cash, cash equivalents, government
securities and qualifying real estate assets, and of the investments in
securities not included in the foregoing, we do not hold more than 10% of the
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outstanding voting securities of any one issuer and no more than 5% by value of
our assets consists of the securities of any one issuer. Failure to comply with
any of the foregoing tests would require us to dispose of a portion of our
assets within 30 days after the end of the calendar quarter or face loss of REIT
status and adverse tax consequences.
RESTRICTIONS ON THE WAY WE DISTRIBUTE INCOME COULD CAUSE US TO BE ADVERSELY
AFFECTED.
We must generally distribute at least 95% of our taxable income each year.
Our operations may from time to time generate taxable income in excess of cash
flows. For example, subordinated mortgage backed securities often are originally
issued at a discount to their redemption price, which discount is generally
equal to the difference between an obligation's issue price and its redemption
price, referred to as original issue discount, or OID. Mezzanine loans also may
be deemed to have OID for federal income tax purposes. OID generally will be
accrued using a constant yield methodology that does not allow credit losses to
be reflected until they are actually incurred. We will be required to recognize
as income each year the portion of the OID that accrues during that year, which
will increase the amount that we must distribute for that year in order to avoid
a corporate-level income tax, notwithstanding the fact that there may be no
corresponding contemporaneous receipt of cash by us. In addition, we may
recognize taxable market discount income upon the receipt of proceeds from the
disposition of, or principal payments on, mortgage loans and mortgage backed
securities that are "market discount bonds", although these proceeds often will
be used to make non-deductible principal payments on related borrowings.
Finally, we may recognize taxable income without receiving a corresponding cash
distribution if we foreclose on or make a "significant modification" to a
mortgage loan, to the extent that the fair market value of the underlying
property or the principal amount of the modified loan, as applicable, exceeds
our basis in the original loan. Consequently, our investment activities could
have the effect of requiring us to incur borrowings or to liquidate a portion of
our portfolio at rates or times that we consider as unfavorable in order to
distribute all of our taxable income and thereby avoid corporate-level income
tax and maintain our qualification as a REIT.
IF A CHANGE IN THE TAX LAWS APPLICABLE TO REITS OCCURS, AND THE CHANGE IS
NEGATIVE TO REITS, OUR BUSINESS, FINANCIAL CONDITION OR RESULTS OF OPERATIONS
MAY BE ADVERSELY AFFECTED.
The rules dealing with federal income taxation are constantly under review
by the IRS, the Treasury Department and Congress. New federal tax legislation or
other provisions may be enacted into law or new interpretations, rulings or
treasury regulations could be adopted, all of which could adversely affect the
taxation of us or our stockholders, possibly with retroactive effect. We cannot
predict the likelihood of passage of any new tax legislation or other provisions
either directly or indirectly affecting us or our stockholders.
NET EXCLUSION INCOME MAY RECEIVE ADVERSE TAX TREATMENT.
In general, dividend income that a tax-exempt entity receives from us should
not constitute unrelated business taxable income as defined in Section 512 of
the Internal Revenue Code, commonly referred to as UBTI. If, however, excess
inclusion income were realized by us and allocated to stockholders, such income
cannot be offset by net operating losses and, if the stockholder is a tax-exempt
entity, is fully taxable as UBTI and, as to foreign stockholders, would be
subject to federal income tax withholding without reduction pursuant to any
otherwise applicable income tax treaty. Excess inclusion income would be
generated if we were to acquire residual interests in one or more REMICs.
Although there is no excess inclusion income currently generated by a non-REMIC
securitization, this result may change if treasury regulations are issued
regarding the application of the taxable mortgage pool rules of the Internal
Revenue Code to REITs. We intend to arrange our securitizations in a manner to
avoid generating significant amounts of excess inclusion income, but we cannot
assure you as to how successful we will be in this regard.
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THE INTENSE COMPETITION WE FACE MAY ADVERSELY AFFECT OUR ABILITY TO ACQUIRE
ASSETS WHICH MAY CAUSE OUR REVENUE AND PROFITABILITY TO SUFFER.
Our net income depends, in large part, on our ability to acquire mortgage
assets at favorable spreads over our borrowing costs. In acquiring mortgage
assets, we compete with:
- other mortgage REITs,
- specialty finance companies,
- savings and loan associations,
- banks,
- mortgage bankers,
- insurance companies,
- mutual funds,
- institutional investors,
- investment banking firms,
- other lenders, and
- governmental bodies and other entities.
In addition, there are numerous mortgage REITs with asset acquisition
objectives similar to ours and others may be organized in the future. Additional
REITs may increase competition for the available supply of mortgage assets
suitable for purchase by us. Many of our anticipated competitors are
significantly larger than us, have access to greater capital and other resources
and may have other advantages over us. In addition to existing companies, other
companies may be organized for purposes similar to ours, including companies
organized as REITs focused on purchasing mortgage assets. A proliferation of
such companies may increase the competition for equity capital and thereby
adversely affect the market price of the common stock. In addition, adverse
publicity affecting this sector of the capital markets or significant operating
failures of competitors may adversely affect the market price of our common
stock.
IF WE FAIL TO MAINTAIN EXEMPTION FROM THE INVESTMENT COMPANY ACT, OUR OPERATING
FLEXIBILITY WOULD BE RESTRICTED, WHICH COULD RESULT IN NEGATIVE EFFECTS TO OUR
BUSINESS, FINANCIAL CONDITIONS OR RESULTS OF OPERATIONS.
We intend to conduct our business so as not to become regulated as an
investment company under the Investment Company Act. The Investment Company Act
excludes from regulation entities that are primarily engaged in the business of
purchasing or otherwise acquiring "mortgages and other liens on and interests in
real estate." Under the current interpretations of the SEC, in order to qualify
for this exemption, we must, among other things, maintain at least 55% of our
assets directly in mortgage loans, qualifying pass-through certificates and
certain other qualifying interests in real estate and an additional 25% of our
assets in real estate related assets. In addition, unless certain mortgage
backed securities represent all the certificates issued with respect to an
underlying pool of mortgage loans, such securities may be treated as securities
separate from the underlying mortgage loans and thus, may not qualify as
qualifying interests in real estate for purposes of the 55% requirement. Our
ownership of many mortgage assets, therefore, will be limited by the provisions
of the Investment Company Act. If we fail to qualify for exemption from
registration as an investment company, our ability to use leverage would be
substantially reduced, and we would be unable to conduct our business as we
currently do. Any failure to qualify for this exemption would have a material
adverse effect on us.
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IF WE ARE SUBJECT TO ENVIRONMENTAL LIABILITIES ARISING OUT OF OUR INVESTMENT IN
PROPERTIES WITH ENVIRONMENTAL PROBLEMS, OUR BUSINESS, FINANCIAL CONDITION OR
RESULTS OF OPERATIONS MAY BE ADVERSELY AFFECTED.
We may become subject to environmental risks when we acquire interests in
properties with material environmental problems. These environmental risks
include the risk that operating costs and values of these assets may be
adversely affected by the obligation to pay for the cost of complying with
existing environmental laws, ordinances and regulations, as well as the cost of
complying with future legislation. These laws often impose liability regardless
of whether the owner or operator knows of, or was responsible for, the presence
of such hazardous or toxic substances. The costs of investigation, remediation
or removal of hazardous substances could exceed the value of the property. Our
income and ability to make distributions to our stockholders could be affected
adversely by the existence of an environmental liability with respect to our
properties.
THE VALUE OF OUR ASSETS ARE ILLIQUID AND MAY DECREASE IN THE FUTURE.
Many of our assets are and will be relatively illiquid. In addition, certain
of the mortgage backed securities that we acquire include interests that have
not been registered under the relevant securities laws, resulting in a
prohibition against transfer, sale, pledge or other disposition of those
mortgage backed securities except in a transaction that is exempt from the
registration requirements of, or otherwise in accordance with, those laws. Our
ability to vary our portfolio in response to changes in economic and other
conditions may be relatively limited. We cannot assure you that the fair market
value of any of our assets will not decrease in the future.
RISKS RELATED TO OUR MANAGER
CONFLICTS OF INTEREST OF THE MANAGER MAY RESULT IN DECISIONS THAT DO NOT FULLY
REFLECT OUR STOCKHOLDERS' BEST INTERESTS.
We are subject to conflicts of interest involving the Manager. Our executive
officers and some of our directors are directors, officers and employees of the
Manager. A majority of our board of directors, however, consists of directors
unaffiliated with our Manager.
We acquire mortgage assets from some of our Manager's affiliates. We may
also invest as a co-participant with affiliates of our Manager in loans
originated or acquired by these affiliates. Although these investments would be
reviewed by directors who are unaffiliated with the Manager, the unaffiliated
directors will still rely primarily on information provided by the Manager in
reviewing these transactions. Because the Manager is a majority-owned subsidiary
of PNC Bank, there is a risk that PNC Bank will be able to exert influence over
these investment decisions. The interests of our Manager may directly conflict
with the interests of our stockholders.
Our Manager purchases and manages mortgage assets and other real estate
related assets for third-party accounts and some of these assets may also be
suitable for us. Our Manager also provides services to REITs not affiliated with
us. As a result, there may be a conflict of interest between the operations of
the Manager and its affiliates in the acquisition and disposition of mortgage
assets. In addition, the Manager and its affiliates may from time to time
purchase mortgage assets for their own account and may purchase or sell assets
from or to us. These conflicts may result in decisions and allocations of
mortgage assets by the Manager that are not in our best interests, even though
the Manager seeks to allocate investment opportunities in a fair manner among
accounts for which particular opportunities are suitable and to achieve the most
favorable price in all transactions.
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OUR MANAGER MAY EARN INCENTIVE COMPENSATION, WHICH MAY ALSO BE ADVERSE TO OUR
INTERESTS AND TO THE INTERESTS OF OUR STOCKHOLDERS.
In addition to its base management compensation, the Manager will have the
opportunity to earn incentive compensation under the management agreement for
each fiscal quarter in an amount equal to 25% of our funds from operations,
before payment of the incentive compensation, plus gains (or minus losses) from
certain transactions in excess of the amount that would produce an annualized
return on invested common stock capital equal to the ten-year U.S. treasury rate
plus 3.5%, expressed as a quarterly rate. In evaluating mortgage assets for
investment and in other management strategies, the opportunity to earn a
performance fee based on net income may lead our Manager to place undue emphasis
on the maximization of income at the expense of other criteria, like
preservation of capital, in order to achieve a higher incentive compensation.
This could result in increased risk to the value of our portfolio. The
management agreement does not limit or restrict the right of the Manager or any
of its officers, directors, employees or affiliates to engage in any business or
render services of any kind to any other person, including other REITs. The
ability of the Manager and its employees to engage in other business activities
could reduce the time and effort spent on our management.
IF OUR MANAGER LOSES ANY OF ITS KEY PERSONNEL, OUR BUSINESS, FINANCIAL CONDITION
OR RESULTS OF OPERATION COULD BE ADVERSELY AFFECTED.
We are heavily dependent for the selection, structuring and monitoring of
our mortgage assets and associated borrowings on the diligence and skill of the
officers and employees of the Manager. We do not have employment agreements with
our senior officers, nor do we require the Manager to employ specific personnel
or dedicate employees solely to us. The Manager in turn is dependent on the
efforts of senior management personnel. While we believe that the Manager could
find replacements for its key executives, the loss of their services could have
an adverse effect on the operations of the Manager and us.
IF WE TERMINATE THE MANAGEMENT AGREEMENT, WE MAY HAVE TO PAY SUBSTANTIAL
TERMINATION FEES TO THE MANAGER.
We may terminate, or decline to renew the term of, the management agreement
without cause upon 60 days' written notice. We would be obligated to pay the
Manager a substantial termination fee in the event we terminate the management
agreement, except in the case of a termination for cause. Payment of this
termination fee, which will be equal to the value of the management agreement
for four years, could have an adverse effect on our financial condition, cash
flows and results of operations and would reduce the amount of funds available
for distribution to our stockholders.
IF WE ARE REQUIRED TO INDEMNIFY OUR MANAGER UNDER THE MANAGEMENT AGREEMENT, WE
MAY INCUR SUBSTANTIAL COSTS IN COMPLYING WITH OUR INDEMNIFICATION OBLIGATIONS.
Under the management agreement, the Manager will not assume any
responsibility other than to render the services called for under the agreement
and will not be responsible for any action of the board of directors in
following or declining to follow its advice or recommendations. The Manager and
its directors and officers will not be liable to us, any subsidiary of ours, the
unaffiliated directors, our stockholders or any subsidiary's stockholders for
acts performed in accordance with and under the management agreement, except by
reason of acts constituting bad faith, willful misconduct, gross negligence or
reckless disregard of their duties under the management agreement. We have
agreed to indemnify the Manager and its directors and officers with respect to
all expenses, losses, damages, liabilities, demands, charges and claims arising
from acts of the Manager not constituting bad faith, willful misconduct, gross
negligence or reckless disregard of duties, performed in good faith in
accordance with and under the management agreement. As these indemnification
obligations may be significant, our business, financial condition or results of
operations may be adversely affected.
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RISKS RELATED TO OUR CAPITAL STOCK
FUTURE SALES OF OUR COMMON STOCK, OR SECURITIES CONVERTIBLE INTO OR EXCHANGEABLE
FOR OUR COMMON STOCK, COULD DILUTE THE INTEREST OF HOLDERS OF COMMON STOCK.
We expect in the future to increase our capital resources by making
additional offerings of equity and debt securities, including classes of
preferred stock, common stock, commercial paper, medium-term notes, and senior
or subordinated notes. The effect of additional equity offerings may be the
dilution of the equity of our stockholders or the reduction of the price of
shares of the common stock, or both. Moreover, all debt securities and other
borrowings, as well as all classes of preferred stock, will be senior to the
common stock in the event we are liquidated. We are unable to estimate the
amount, timing or nature of additional offerings as they will depend upon market
conditions and other factors.
RESTRICTIONS ON OWNERSHIP OF OUR COMMON STOCK MAY CAUSE AN INTENDED TRANSFEREE
OF OUR SHARES TO LOSE ALL RIGHTS TO THOSE SHARES.
In order for us to meet the requirements for qualification as a REIT at all
times, our Articles of Amendment and Restatement prohibit any person from
acquiring or holding, directly or indirectly, shares of capital stock in excess
of 9.8% (in value or in number of shares, whichever is more restrictive) of the
aggregate of the outstanding shares of any class of capital stock of the
Company. Our Articles of Amendment and Restatement further prohibit:
- any person from beneficially or constructively owning shares of capital
stock that would result in us being "closely held" under Section 856(h) of
the Internal Revenue Code or would otherwise cause us to fail to qualify
as a REIT, and
- any person from transferring shares of capital stock if the transfer would
result in shares of capital stock being beneficially owned by fewer than
100 persons.
If any transfer of shares of our capital stock occurs which, if effective,
would result in a violation of one or more ownership limitations, then that
number of shares of capital stock, the beneficial or constructive ownership of
which otherwise would cause the person to violate the limitations (rounded to
the nearest whole shares), will be automatically transferred to a trustee of a
trust for the exclusive benefit of one or more charitable beneficiaries. The
intended transferee would then lose any rights in those shares. If any transfer
occurs which, if effective, would result in shares of capital stock being owned
by fewer than 100 persons, then the transfer shall be null and void and the
intended transferee would not acquire any rights to the stock. Our board of
directors may waive the limitations for certain investors in limited
circumstances.
PROVISIONS OF OUR PREFERRED STOCK AND APPLICABLE STATE LAW MAY PREVENT ANY
TAKEOVER ATTEMPT OR OTHER CHANGE OF CONTROL OF US.
Our authorized capital stock includes preferred stock issuable in one or
more series. The issuance of preferred stock could have the effect of making an
attempt to gain control of us more difficult by means of a merger, tender offer,
proxy contest or otherwise. The preferred stock, if issued, would have a
preference on dividend payments that could affect our ability to make dividend
distributions to the common stockholders. The provisions of our Articles of
Amendment and Restatement or relevant Maryland law may inhibit market activity
and the resulting opportunity for the holders of the common stock to receive a
premium for their common stock that might otherwise exist in the absence of
these provisions. These provisions also may make us an unsuitable investment
vehicle for any person seeking to obtain ownership of more than 9.8% of the
outstanding shares of our common stock.
Material provisions of the Maryland General Corporation Law relating to
"business combinations" and a "control share acquisition" and of our Articles of
Amendment and Restatement and Bylaws may
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also have the effect of delaying, deterring or preventing a takeover attempt or
other change in control of us that would be beneficial to stockholders and might
otherwise result in a premium over then prevailing market prices. Although our
Bylaws contain a provision exempting the acquisition of common stock by any
person from the control share acquisition statute, we cannot assure you that
this provision will not be amended or eliminated at any time in the future.
EMPLOYEE BENEFIT PLANS THAT INVEST IN OUR STOCK ARE SUBJECT TO ADDITIONAL
ERISA-RELATED RISKS.
Fiduciaries of employee benefit plans subject to Title I of the Employee
Retirement Income Security Act of 1974, as amended, should consider the ERISA
fiduciary investment standards before authorizing an investment by a plan in our
stock. In addition, fiduciaries of employee benefit plans or other retirement
arrangements which are subject to Title I of ERISA, and/or Section 4975 of the
Internal Revenue Code, as well as any entity, including an insurance company
general account, whose underlying assets include plan assets by reason of a plan
or account investing in such entity, should consult with their legal counsel to
determine whether an investment in our stock will cause our assets to be
considered plan assets under the plan asset regulations found in 29 C.F.R.
Section 2510.3-101, thereby subjecting the plan to the prohibited transaction
rules and our assets to the fiduciary investment standards of ERISA, or cause
the excise tax provisions of Section 4975 of the Internal Revenue Code, to apply
to our assets, unless some exception or exemption granted by the Department of
Labor applies to the acquisition, holding or transfer of the stock.
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DESCRIPTION OF CAPITAL STOCK
This prospectus contains a summary of our common stock and Series A
preferred stock. These summaries are not meant to be a complete description of
each security. However, this prospectus contains the material terms and
conditions for each security.
Our authorized capital stock consists of 500,000,000 shares of capital
stock, 400,000,000 of such shares being common stock, par value $.001 per share,
and 100,000,000 shares being preferred stock, par value $.001 per share,
issuable in one or more series. 20,961,534 shares of common stock were issued
and outstanding as of December 31, 1999. 1,200,000 shares of Series A preferred
stock were issued and outstanding as of December 31, 1999. No warrants to
purchase either common stock or preferred stock were issued or outstanding as of
December 31, 1999. 4,081,633 shares of our common stock have been reserved for
issuance upon conversion of our Series A preferred stock.
COMMON STOCK
VOTING RIGHTS. Each holder of common stock is entitled to one vote for each
share held on all matters to be voted upon by our stockholders, subject to the
provisions of our charter regarding the ownership of shares of common stock in
excess of the ownership limitations described below under "Repurchase of Shares
and Restrictions on Transfer."
DIVIDENDS. The holders of outstanding shares of common stock, subject to
any preferences that may be applicable to any outstanding series of preferred
stock, are entitled to receive ratably such dividends out of assets legally
available for that purpose at such times and in such amounts as the board of
directors may from time to time determine.
LIQUIDATION AND DISSOLUTION. Upon our liquidation or dissolution, the
holders of the common stock will be entitled to share ratably in our assets
legally available for distribution to stockholders after payment of, or
provision for, all known debts and liabilities and subject to the prior rights
of any holders of any preferred stock then outstanding.
OTHER RIGHTS. Holders of the common stock generally have equal dividend,
distribution, liquidation and other rights, and shall have no preference,
conversion, exchange, appraisal, preemptive or cumulative voting rights. All
outstanding shares of the common stock are, and any common shares offered by a
prospectus supplement, when issued, will be, duly authorized, fully paid and
non-assessable by Anthracite.
TRANSFER AGENT AND REGISTRAR
The Bank of New York acts as transfer agent and registrar for the common
stock.
PREFERRED STOCK
GENERAL. We are authorized to issue 100,000,000 shares of preferred stock,
1,200,000 shares of which are currently issued and outstanding and designated as
our Series A preferred stock. Our board of directors has the authority, without
further action by the stockholders, to issue shares of preferred stock in one or
more series and to fix the number of shares, dividend rights, conversion rights,
voting rights, redemption rights, liquidation preferences, sinking funds, and
any other rights, preferences, privileges and restrictions applicable to each
such series of preferred stock. The issuance of preferred stock could have the
effect of making an attempt to gain control of us more difficult by means of a
merger, tender offer, proxy contest or otherwise. The preferred stock would have
or, in the case of issued and outstanding preferred stock, has, a preference on
dividend payments that could affect our ability to make dividend distributions
to the common stockholders. The preferred stock will, when issued, be, and in
the case of the issued and outstanding preferred stock, is, duly authorized,
fully paid and non-assessable by Anthracite.
SERIES A PREFERRED STOCK. The following description is merely a summary of
terms and is qualified by reference to our articles supplementary attached as an
exhibit to the registration statement filed with
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the SEC and of which this prospectus forms a part. We issued 1,200,000 shares of
preferred stock designated as 10.5% Series A Senior Cumulative Convertible
Redeemable Preferred Stock on December 2, 1999. The shares of the Series A
preferred stock rank prior to all shares of any other class or series of our
capital stock, unless such other class or series by its terms ranks senior to
the shares of the Series A preferred stock, with respect to voting powers,
preferences and relative, participating, optional and other special rights of
the shares.
Voting Rights. Holders of shares of the Series A preferred stock are
entitled to vote as a single class with the common stockholders and are entitled
to the number of votes per share on each matter submitted to a vote of common
stockholders equal to the number of whole shares of common stock into which the
Series A preferred stock is convertible.
Dividends. Holders of Series A preferred stock are entitled to receive
dividends payable in cash on each share of Series A preferred stock in an amount
per annum equal to $2.625. Dividends are cumulative, whether or not declared,
and payable quarterly in arrears on each January 5, April 5, July 5 and October
5. All unpaid dividends compound on a quarterly basis at a rate of 10.5% per
annum and commenced to accrue on the date of issuance, December 2, 1999.
Liquidation and Dissolution. Upon our liquidation, dissolution or winding
up, the holders of the shares of Series A preferred stock are entitled to
receive, before any distribution or payment is made on any shares of any class
or series of the capital stock of Anthracite ranking junior to the Series A
preferred stock, a per share amount equal to the sum of $27.75 and an amount
equal to all accrued but unpaid dividends thereon and unpaid interest, computed
up to the date that payment thereof is made available.
Conversion. Holders are entitled to convert shares of the Series A
preferred stock at any time after the date of issuance. The conversion price per
share is equal to $7.35 per share, subject to adjustment from time to time
including upon issuances by us of common stock at less than its current market
price, stock splits or reverse stock splits, stock dividends, or a merger or
sale of substantially all of our assets. Each share of Series A preferred stock
is convertible into the number of shares of common stock determined by dividing
$25.00 by the applicable conversion price. Beginning on December 2, 2002, each
outstanding share of the Series A preferred stock will be converted
automatically into shares of common stock upon the closing of a public offering
of our common stock in which the aggregate offering price is not less than $10
million and the offering price per share is at least 150% of the then applicable
conversion price at which the Series A preferred stock may be converted into
common stock.
Redemption. At any time after December 2, 2002, we are entitled to redeem
all but not less than all outstanding shares of Series A preferred stock, at a
redemption price per share payable in cash equal to $27.75 per share, plus
accrued but unpaid dividends thereon and unpaid interest to the date fixed for
redemption PROVIDED, that the average closing price per share of our common
stock for the 90 days immediately prior to the date of redemption is at least
150% of the applicable conversion price on the date of redemption. On
December 2, 2006 and at any time thereafter, each preferred stockholder is
entitled to cause us to redeem all of its shares of Series A preferred stock
then outstanding, at a redemption price per share payable in cash equal to
$27.75 per share, plus accrued but unpaid dividends thereon and unpaid interest
to the date fixed for redemption. Upon the occurrence of a change of control of
us, including a change in the Manager or a sale of all or substantially all of
our assets, each preferred stockholder is entitled to require us to purchase for
cash all or a portion of such holder's Series A preferred stock, at a redemption
price per share payable in cash equal to $27.75 per share, plus accrued but
unpaid dividends thereon and unpaid interest to the date fixed for redemption.
In the event that we fail to comply with any of the covenants made by us in our
charter to the holders of Series A preferred stock, as described below under the
heading "--Covenants," for a period of 150 days following a notice of breach,
each holder of shares of Series A preferred stock has the right to cause us to
redeem all of that holder's shares of Series A preferred stock at a redemption
price equal to $30.525 per share plus all accrued but unpaid dividends.
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Board Representation. The holders of the Series A preferred stock have the
exclusive right to nominate and elect one member of our board of directors at
any annual or special meeting of our stockholders. If we fail (1) to pay in full
two consecutive dividends, or (2) to redeem shares of the Series A preferred
stock upon the redeeming holder's election, then the holders of the Series A
preferred stock are entitled to elect a majority of the members of our board of
directors at any annual or special meeting of stockholders until (1) all such
distributions have been declared and paid or set aside for payment or (2) all
shares to be redeemed have been redeemed in full.
Covenants. We may not, among other things, without the consent of the
holders of a majority of the shares of Series A preferred stock, (1) issue any
class or series of equity security ranking senior to or on a parity with the
Series A preferred stock, (2) amend our charter or bylaws in any manner which
would materially impair or reduce the rights of the holders of the Series A
preferred stock, (3) make any single investment or series of related investments
in an amount exceeding $50 million in market value (other than investments in
investment grade assets), or (4) acquire or merge with or into or consolidate
with another entity, the value of whose common stock equity is greater than $50
million. Additionally, we must maintain a ratio of indebtedness to book net
worth which does not exceed specified limitations found in our articles
supplementary.
Preemptive Rights. The holders of shares of Series A preferred stock have
the option to purchase a portion of any new equity securities we offer, other
than securities issued in a public offering or to employees of the Manager under
our compensatory stock option plans at the same price per share and upon the
same terms as the new equity securities are offered to third parties. Each
holder of shares of Series A preferred stock has the right to purchase that
number of the offered new equity securities that is equal to the number of
offered securities multiplied by a fraction, the numerator of which is the
number of shares of our common stock plus all shares of common stock issuable
upon conversion of our convertible securities (including the Series A preferred
stock) then held by the holder and the denominator of which is the aggregate
number of shares of our common stock outstanding plus all shares of our common
stock issuable upon conversion of our convertible securities.
Right of First Refusal. We have a right of first refusal with respect to
the sale of any Series A preferred stock.
REPURCHASE OF SHARES AND RESTRICTIONS ON TRANSFER
Two of the requirements for qualification as a real estate investment trust
are that
(1) during the last half of each taxable year for which a REIT election is made,
other than the first taxable year for which a REIT election is made, not
more than 50% in value of the outstanding shares may be owned directly or
indirectly by five or fewer individuals. This requirement is known as the
"5/50 Rule"; and
(2) there must be at least 100 stockholders on 335 days of each taxable year of
12 months, other than the first taxable year for which a REIT election is
made.
To assist us in meeting these requirements, the charter prohibits any person
from acquiring or holding, directly or indirectly, in excess of 9.8%, in value
or in number of shares, whichever is more restrictive, of the number of our
outstanding shares of common stock or any class of preferred stock. For this
purpose, the term "ownership" is defined in accordance with the REIT Provisions
of the Internal Revenue Code and the constructive ownership provisions of
Section 544 of the Internal Revenue Code, as modified by Section 856(h)(1)(B) of
the Internal Revenue Code. Subject to certain limitations, our board of
directors may modify the ownership limitations provided such action does not
affect our qualification as a REIT.
For purposes of the 5/50 Rule, the constructive ownership provisions
applicable under Section 544 of the Internal Revenue Code
(1) attribute ownership of securities owned by a corporation, partnership,
estate or trust proportionately to its stockholders, partners or
beneficiaries,
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(2) attribute ownership of securities owned by certain family members to other
members of the same family, and
(3) treat securities with respect to which a person has an option to purchase as
actually owned by that person.
These rules will be applied in determining whether a person holds shares of
common stock or preferred stock in violation of the ownership limitations
specified in the articles of amendment and restatement. Accordingly, under
certain circumstances, shares of common stock or preferred stock owned by a
person who individually owns less than 9.8% of the shares outstanding may
nevertheless be in violation of the ownership limitations specified in the
charter. Ownership of shares of common stock through such attribution is
generally referred to as constructive ownership. The 100 stockholder test is
determined by actual, and not constructive, ownership.
The articles of amendment and restatement further provide that if any
transfer of shares of common stock which, if effective, would
(1) result in any person beneficially or constructively owning shares of common
stock in excess or in violation of the 9.8% ownership limitations described
above,
(2) result in our stock being beneficially owned by fewer than 100 persons,
determined without reference to any rules of attribution, or
(3) result in us being "closely held" under Section 856(h) of the Internal
Revenue Code,
then that number of shares of common or preferred stock the beneficial or
constructive ownership of which otherwise would cause such person to violate
such limitations, rounded to the nearest whole shares, shall be automatically
transferred to a trustee as trustee of a trust for the exclusive benefit of one
or more charitable beneficiaries, and the intended transferee shall not acquire
any rights in such shares. Shares of common or preferred stock held by the
trustee shall be issued and outstanding shares of common or preferred stock. The
intended transferee shall not benefit economically from owning any shares held
in the trust, shall have no rights to dividends, and shall possess no rights to
vote or other rights attributable to the shares held in the trust. The trustee
shall have all voting rights and rights to dividends or other distributions with
respect to shares held in the trust, which will be exercised for the exclusive
benefit of the charitable beneficiary. Any dividend or other distribution paid
to the intended transferee before our discovery that shares of common or
preferred stock have been transferred to the trustee shall be paid with respect
to such shares to the trustee by the intended transferee upon demand and any
dividend or other distribution authorized but unpaid shall be paid to the
trustee. Our board of directors may, in its discretion, modify these
restrictions on owning shares in excess of the ownership limitations, to the
extent such modifications do not affect our qualification as a REIT.
Within 20 days of receiving notice from us that shares of common or
preferred stock have been transferred to the trust, the trustee shall sell the
shares held in the trust to a person, designated by the trustee, whose ownership
of the shares will not violate the ownership limitations specified in the
charter. Upon such sale, the interest of the charitable beneficiary in the
shares sold shall terminate and the trustee shall distribute the net proceeds of
the sale to the intended transferee and to the charitable beneficiary as
follows: The intended transferee shall receive the lesser of (1) the price paid
by the intended transferee for the shares or, if the intended transferee did not
give value for the shares in connection with the event causing the shares to be
held in the trust, e.g., in the case of a gift, devise or other such
transaction, the market price, as defined below, of the shares on the day of the
event causing the shares to be held in the trust, and (2) the price per share
received by the trustee from the sale or other disposition of the shares held in
the trust. Any net sales proceeds in excess of the amount payable to the
intended transferee shall be immediately paid to the charitable beneficiary. In
addition, shares of common or preferred stock transferred to the trustee shall
be deemed to have been offered for sale to us, or our designee, at a price per
share equal to the lesser of (1) the price per share in the transaction that
resulted in such transfer to the trust or, in the case of a devise or gift, the
market price at the time of such devise or gift, and (2) the market price on the
date we, or our designee, accept
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such offer. We shall have the right to accept such offer until the trustee has
sold shares held in the trust. Upon such a sale to us, the interest of the
charitable beneficiary in the shares sold shall terminate and the trustee shall
distribute the net proceeds of the sale to the intended transferee.
The term "market price" on any date shall mean, with respect to any class or
series of outstanding shares of our stock, the closing price, as defined below,
for such shares on such date. The "closing price" on any date shall mean the
last sale price for such shares, regular way, or, in case no such sale takes
place on such day, the average of the closing bid and asked prices, regular way,
for such shares, in either case as reported in the principal consolidated
transaction reporting system with respect to securities listed or admitted to
trading on the New York Stock Exchange or, if such shares are not listed or
admitted to trading on the New York Stock Exchange, as reported on the principal
consolidated transaction reporting system with respect to securities listed on
the principal national securities exchange on which such shares are listed or
admitted to trading or, if such shares are not listed or admitted to trading on
any national securities exchange, the last quoted price, or, if not so quoted,
the average of the high bid and low asked prices in the over-the-counter market,
as reported by the National Association of Securities Dealers, Inc., Automated
Quotation Systems, or, if such system is no longer in use, the principal other
automated quotation system that may then be in use or, if such shares are not
quoted by any such organization, the average of the closing bid and asked prices
as furnished by a professional market maker making a market in such shares
selected by our board of directors or, in the event that no trading price is
available for such shares, the fair market value of the shares, as determined in
good faith by our board of directors.
Every owner of more than 5%, or such lower percentage as required by the
Internal Revenue Code or the regulations promulgated under the Internal Revenue
Code, of the outstanding shares or any class or series of our stock, within
30 days after the end of each taxable year, is required to give written notice
to us stating the name and address of such owner, the number of shares of each
class and series of our stock beneficially owned and a description of the manner
in which such shares are held. Each owner of more than 5% shall provide to us
additional information as we may request in order to determine the effect, if
any, of such beneficial ownership on our qualification as a REIT and to ensure
compliance with the ownership limitations.
MATERIAL PROVISIONS OF MARYLAND LAW AND OF OUR CHARTER AND BYLAWS
The following is a summary of the material provisions of the Maryland
General Corporation Law, as amended from time to time, and of our charter and
bylaws. It does not restate the material provisions completely. We urge you to
read our charter and bylaws, copies of which are incorporated by reference into
the registration statement of which this prospectus is a part. See "Where You
Can Find More Information." For a description of additional restrictions on
transfer of the common stock and the Series A preferred stock, see "Description
of Capital Stock--Repurchase of Shares and Restrictions on Transfer."
REMOVAL OF DIRECTORS
The charter provides that a director may be removed from office at any time
for cause by the affirmative vote of the holders of at least two-thirds of the
votes of the shares entitled to be cast in the election of directors. However,
the director elected by the holders of our Series A preferred stock may be
removed at any time with or without cause by the holders of a majority of shares
of our Series A preferred stock.
STAGGERED BOARD
The charter and bylaws divide the board of directors into three classes of
directors, each class constituting approximately one-third of the total number
of directors, with the classes serving staggered three-year terms. The
classification of the board of directors will make it more difficult for
stockholders to change the composition of the board of directors because only a
minority of the directors can be
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elected at any one time. The classification provisions could also discourage a
third party from accumulating our stock or attempting to obtain control of us,
even though this attempt might be beneficial to us and some, or a majority, of
our stockholders. Accordingly, under certain circumstances stockholders could be
deprived of opportunities to sell their shares of common stock or preferred
stock at a higher price than might otherwise be available.
BUSINESS COMBINATIONS
Under the Maryland General Corporation Law, or MGCL, certain "business
combinations" including a merger, consolidation, share exchange or, in some
circumstances, an asset transfer or issuance or reclassification of equity
securities, between a Maryland corporation and an "interested stockholder" or an
affiliate of an interested stockholder are prohibited for five years after the
most recent date on which the interested stockholder becomes an interested
stockholder. An interested stockholder is defined in the MGCL as any person who
beneficially owns 10% or more of the voting power of the corporation's shares or
an affiliate of the corporation who, at any time within the two-year period
prior to the date in question, was the beneficial owner of 10% or more of the
voting power of the then outstanding voting stock of the corporation. During the
five year period, any applicable business combination must be recommended by the
board of directors of that corporation and approved by the affirmative vote of
at least
(a) 80% of the votes entitled to be cast by holders of outstanding shares of
voting stock of the corporation and
(b) two-thirds of the votes entitled to be cast by holders of voting stock
of the corporation other than shares held by the interested stockholder
with whom, or with whose affiliate, the business combination is to be
effected, unless, among other conditions, the corporation's common
stockholders receive a minimum price, as defined in the MGCL, for their
shares and the consideration is received in cash or in the same form as
previously paid by the interested stockholder for its shares. The MGCL
does not apply, however, to business combinations that are approved or
exempted by the board of directors of the corporation before the
interested stockholder becomes an interested stockholder.
CONTROL SHARE ACQUISITIONS
The MGCL provides that "control shares" of a Maryland corporation acquired
in a "control share acquisition" have no voting rights except to the extent
approved by a vote of two-thirds of the votes entitled to be cast on the matter,
excluding shares of stock owned by the acquirer, by officers or by directors who
are employees of the corporation. "Control shares" are voting shares of stock
which, if aggregated with all other such shares of stock previously acquired by
the acquirer or in respect of which the acquirer is able to exercise or direct
the exercise of voting power, except solely by virtue of a revocable proxy,
would entitle the acquirer to exercise voting power in electing directors within
one of the following ranges of voting power:
(1) one-fifth or more but less than one-third,
(2) one-third or more but less than a majority or
(3) a majority or more of all voting power.
Control shares do not include shares the acquiring person is then entitled
to vote as a result of having previously obtained stockholder approval. A
"control share acquisition" means the acquisition of control shares, subject to
certain exceptions.
A person who has made or proposes to make a control share acquisition, upon
satisfaction of certain conditions, including an undertaking to pay expenses,
may compel the board of directors of the corporation to call a special meeting
of stockholders to be held within 50 days of demand to consider the voting
rights of the shares. If no request for a meeting is made, the corporation may
itself present the question at any stockholders meeting.
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If voting rights are not approved at the meeting or if the acquiring person
does not deliver an acquiring person statement as required by the statute, then,
subject to certain conditions and limitations, the corporation may redeem any or
all of the control shares, except those for which voting rights have previously
been approved, for fair value determined, without regard to the absence of
voting rights for the control shares, as of the date of the last control share
acquisition by the acquirer or of any meeting of stockholders at which the
voting rights of such shares are considered and not approved. If voting rights
for control shares are approved at a stockholders meeting and the acquirer
becomes entitled to vote a majority of the shares entitled to vote, all other
stockholders may exercise appraisal rights. The fair value of the shares as
determined for purposes of such appraisal rights may not be less than the
highest price per share paid by the acquirer in the control share acquisition.
The control share acquisition statute does not apply
- to shares acquired in a merger, consolidation or share exchange if the
corporation is a party to the transaction, or
- to acquisitions approved or exempted by the charter or bylaws of the
corporation.
Our bylaws contain a provision exempting from the control share acquisition
statute any and all acquisitions by any person of our shares of common stock. We
cannot give any assurance that such provision will not be amended or eliminated
at any time in the future.
AMENDMENT TO THE CHARTER
We reserve the right from time to time to make any amendment to our charter
that is authorized by law at present or in the future, including any amendment
which alters the contract rights as expressly stated in the charter, of any
shares of outstanding stock. The charter may be amended only by the affirmative
vote of holders of shares entitled to cast at least a majority of all the votes
entitled to be cast on the matter; provided, however, that provisions relating
to the indemnification of our present and former directors and officers, our
election to be taxed as a REIT, the removal of directors for cause and
dissolution of Anthracite may be amended only by the affirmative vote of a
majority of the board of directors and the holders of shares entitled to cast at
least two-thirds of all the votes entitled to be cast in the election of
directors; provided further that any amendment to our charter that would impair
or reduce the rights of the holders of our Series A preferred stock and any
amendment to the terms of the Series A preferred stock set forth in our charter
requiries the consent of the holders of a majority of the shares of Series A
preferred stock.
DISSOLUTION OF ANTHRACITE
Our dissolution must be approved by the affirmative vote of at least
two-thirds of all of the votes ordinarily entitled to be cast in the election of
directors, voting together as a single class, and the affirmative vote of
holders of at least two-thirds of any series or class of stock expressly granted
a series or class vote on our dissolution in the resolutions providing for such
series or class. Before such vote, the dissolution must be approved by a
majority of the board of directors.
ADVANCE NOTICE OF DIRECTOR NOMINATIONS AND NEW BUSINESS
The bylaws provide that
(a) with respect to an annual meeting of stockholders, nominations of
persons for election to the board of directors and the proposal of
business to be considered by stockholders may be made only
(1) pursuant to our notice of the meeting,
(2) by the board of directors, or
(3) by a stockholder who is a stockholder of record both at the time of
the notice of the meeting and at the time of the meeting, is entitled
to vote at the meeting and has complied with the advance notice
procedures specified in the bylaws;
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(b) with respect to special meetings of stockholders, only the business
specified in our notice of meeting may be brought before the meeting of
stockholders;
(c) nominations of persons for election to the board of directors at any
special meeting of stockholders at which directors are to be elected may
be made only (1) pursuant to our notice of meeting, (2) by the board of
directors or (3) if the board of directors has determined that directors
shall be elected at such meeting, by a stockholder who is entitled to
vote at the meeting and has complied with the advance notice provisions
specified in the bylaws and is a stockholder of record both at the time
of the meeting and at the time of the notice of the meeting.
POSSIBLE ANTI-TAKEOVER EFFECT OF MATERIAL PROVISIONS OF MARYLAND LAW AND OF THE
CHARTER AND BYLAWS
The business combination provisions and, if the applicable provision in the
bylaws is rescinded, the control share acquisition provisions of the MGCL, the
provisions of the charter creating a staggered board and the advance notice
provisions of the bylaws could delay, defer or prevent a change in control of
Anthracite or other transaction that might involve a premium price for holders
of our common stock or otherwise be in their best interest.
REPORTS TO STOCKHOLDERS
We will furnish our stockholders with annual reports containing audited
financial statements and such other periodic reports as we may determine to
furnish or as may be required by law.
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MATERIAL FEDERAL INCOME TAX CONSEQUENCES
THE FOLLOWING IS A SUMMARY OF THE FEDERAL INCOME TAX CONSEQUENCES
ANTICIPATED TO BE MATERIAL TO AN INVESTOR IN ANTHRACITE. THIS SUMMARY IS BASED
ON CURRENT LAW, IS FOR GENERAL INFORMATION ONLY AND IS NOT TAX ADVICE. YOUR TAX
CONSEQUENCES RELATED TO AN INVESTMENT IN ANTHRACITE MAY VARY DEPENDING ON YOUR
PARTICULAR SITUATION AND THIS DISCUSSION DOES NOT PURPORT TO DISCUSS ALL ASPECTS
OF TAXATION THAT MAY BE RELEVANT TO A HOLDER OF OUR SECURITIES IN LIGHT OF HIS
OR HER PERSONAL INVESTMENT OR TAX CIRCUMSTANCES, OR TO HOLDERS OF OUR SECURITIES
SUBJECT TO SPECIAL TREATMENT UNDER THE FEDERAL INCOME TAX LAWS EXCEPT TO THE
EXTENT DISCUSSED UNDER THE HEADINGS "--TAXATION OF TAX-EXEMPT STOCKHOLDERS" AND
"--TAXATION OF NON-U.S. STOCKHOLDERS." INVESTORS SUBJECT TO SPECIAL TREATMENT
INCLUDE, WITHOUT LIMITATION, INSURANCE COMPANIES, FINANCIAL INSTITUTIONS,
BROKER-DEALERS, TAX-EXEMPT ORGANIZATIONS, INVESTORS HOLDING SECURITIES AS PART
OF A CONVERSION TRANSACTION, OR A HEDGE OR HEDGING TRANSACTION OR AS A POSITION
IN A STRADDLE FOR TAX PURPOSES, FOREIGN CORPORATIONS OR PARTNERSHIPS, AND
PERSONS WHO ARE NOT CITIZENS OR RESIDENTS OF THE UNITED STATES. IN ADDITION, THE
SUMMARY BELOW DOES NOT CONSIDER THE EFFECT OF ANY FOREIGN, STATE, LOCAL OR OTHER
TAX LAWS THAT MAY BE APPLICABLE TO YOU AS A HOLDER OF OUR SECURITIES.
The information in this summary is based on the Internal Revenue Code of
1986, as amended, current, temporary and proposed Treasury regulations
promulgated under the Internal Revenue Code, the legislative history of the
Internal Revenue Code, current administrative interpretations and practices of
the Internal Revenue Service, and court decisions, all as of the date of this
prospectus. The administrative interpretations and practices of the Internal
Revenue Service upon which this summary is based include its practices and
policies as expressed in private letter rulings which are not binding on the
Internal Revenue Service, except with respect to the taxpayers who requested and
received such rulings. Future legislation, Treasury regulations, administrative
interpretations and practices, and court decisions may affect the tax
consequences contained in this summary, possibly on a retroactive basis. We have
not requested, and do not plan to request, any rulings from the Internal Revenue
Service concerning our tax treatment, and the statements in this prospectus are
not binding on the Internal Revenue Service or a court. Thus, we can provide no
assurance that the tax consequences contained in this summary will not be
challenged by the Internal Revenue Service or sustained by a court if challenged
by the Internal Revenue Service.
YOU ARE URGED TO CONSULT YOUR TAX ADVISOR REGARDING THE SPECIFIC TAX
CONSEQUENCES TO YOU OF (1) THE ACQUISITION, OWNERSHIP AND SALE OR OTHER
DISPOSITION OF OUR SECURITIES, INCLUDING THE FEDERAL, STATE, LOCAL, FOREIGN AND
OTHER TAX CONSEQUENCES, (2) OUR ELECTION TO BE TAXED AS A REAL ESTATE INVESTMENT
TRUST FOR FEDERAL INCOME TAX PURPOSES AND (3) POTENTIAL CHANGES IN APPLICABLE
TAX LAWS.
TAXATION OF ANTHRACITE
GENERAL
We have elected to be taxed as a REIT under Sections 856 through 860 of the
Internal Revenue Code, commencing with our taxable year ended December 31, 1998.
We believe we have been organized and have operated in a manner which allows us
to qualify for taxation as a REIT under the Internal Revenue Code, and we intend
to continue to operate in this manner. Our qualification and taxation as a REIT,
however, depend upon our ability to meet, through actual annual operating
results, asset requirements, distribution levels, diversity of stock ownership,
and the various other qualification tests imposed under the Internal Revenue
Code. Accordingly, there can be no assurance that we have operated or will
continue to operate in a manner so as to qualify or remain qualified as a REIT.
See "--Failure to Qualify."
The sections of the Internal Revenue Code that relate to the qualification
and taxation of REITs are highly technical and complex. The following describes
the material aspects of the sections of the
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Internal Revenue Code that govern the Federal income tax treatment of a REIT and
its stockholders. This summary is qualified in its entirety by the applicable
Internal Revenue Code provisions, rules and regulations promulgated under the
Internal Revenue Code, and administrative and judicial interpretations of the
Internal Revenue Code.
Provided we qualify for taxation as a REIT, we generally will not be subject
to Federal corporate income tax on our net income that is currently distributed
to our stockholders. This treatment substantially eliminates the "double
taxation" that generally results from an investment in a corporation. Double
taxation means taxation once at the corporate level when income is earned and
once again at the stockholder level when such income is distributed. Even if we
qualify for taxation as a REIT, however, we will be subject to Federal income
taxation as follows:
- We will be required to pay tax at regular corporate rates on any
undistributed REIT taxable income, including undistributed net capital
gains.
- We may be subject to the "alternative minimum tax" on items of tax
preference, if any.
- If we have (a) net income from the sale or other disposition of
"foreclosure property" which is held primarily for sale to customers in
the ordinary course of business or (b) other nonqualifying income from
foreclosure property, we will be required to pay tax at the highest
corporate rate on this income. In general, foreclosure property is
property acquired through foreclosure after a default on a loan secured by
the property or on a lease of the property.
- We will be required to pay a 100% tax on any net income from prohibited
transactions. In general, prohibited transactions are sales or other
taxable dispositions of property, other than foreclosure property, held
for sale to customers in the ordinary course of business.
- If we fail to satisfy the 75% or 95% gross income tests, as described
below, but have maintained our qualification as a REIT, we will be
required to pay a 100% tax on an amount equal to (a) the gross income
attributable to the greater of the amount by which we fail the 75% or 95%
gross income test multiplied by (b) a fraction intended to reflect our
profitability.
- We will be required to pay a 4% excise tax on the amount by which our
annual distributions to our stockholders is less than the sum of (1) 85%
of our ordinary income for the year, (2) 95% of our real estate investment
trust capital gain net income for the year, and (3) any undistributed
taxable income from prior periods.
- If we acquire an asset from a corporation which is not a REIT in a
transaction in which the basis of the asset in our hands is determined by
reference to the basis of the asset in the hands of the transferor
corporation, and we subsequently sell the asset within ten years, then
under Treasury regulations not yet issued, we would be required to pay tax
at the highest regular corporate tax rate on this gain to the extent
(a) the fair market value of the asset exceeds (b) our adjusted tax basis
in the asset, in each case, determined as of the date on which we acquired
the asset. The results described in this paragraph assume that we will
elect this treatment in lieu of an immediate tax when the asset is
acquired.
- We will generally be subject to tax on the portion of any "excess
inclusion" income derived from an investment in residual interests in real
estate mortgage investment conduits to the extent our stock is held by
specified tax exempt organizations not subject to tax on unrelated
business taxable income.
REQUIREMENTS FOR QUALIFICATION AS A REAL ESTATE INVESTMENT TRUST
The Internal Revenue Code defines a REIT as a corporation, trust or
association:
(1) that is managed by one or more trustees or directors;
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(2) that issues transferable shares or transferable certificates to its
owners;
(3) that would be taxable as a regular corporation, but for its election to
be taxed as a REIT;
(4) that is not a financial institution or an insurance company under the
Internal Revenue Code;
(5) that is owned by 100 or more persons;
(6) not more than 50% in value of the outstanding stock of which is owned,
actually or constructively, by five or fewer individuals, as defined in
the Internal Revenue Code to include some entities, during the last half
of each year; and
(7) that meets other tests, described below, regarding the nature of its
income and assets, and the amount of its distributions.
The Internal Revenue Code provides that conditions (1) to (4) must be met
during the entire year and that condition (5) must be met during at least
335 days of a year of twelve months, or during a proportionate part of a shorter
taxable year. Conditions (5) and (6) do not apply to the first taxable year for
which an election is made to be taxed as a REIT. For purposes of condition (6),
tax-exempt entities are generally treated as individuals, subject to a
"look-through" exception for pension funds.
Our charter provides for restrictions regarding ownership and transfer of
our stock. These restrictions are intended to assist us in satisfying the share
ownership requirements described in (5) and (6) above. These stock ownership and
transfer restrictions are described in "Description of Capital
Stock--Restrictions on Ownership and Transfer." These restrictions, however, may
not ensure that we will, in all cases, be able to satisfy the share ownership
requirements described in (5) and (6) above. If we fail to satisfy these share
ownership requirements, our status as a REIT would terminate. If, however, we
comply with the rules contained in applicable Treasury regulations that require
us to determine the actual ownership of our shares and we do not know, or would
not have known through the exercise of reasonable diligence, that we failed to
meet the requirement described in condition (6) above, we would not be
disqualified as a REIT.
In addition, a corporation may not qualify as a REIT unless its taxable year
is the calendar year. We have and will continue to have a calendar taxable year.
OWNERSHIP OF A PARTNERSHIP INTEREST
The Treasury regulations provide that if we are a partner in a partnership,
we will be deemed to own our proportionate share of the assets of the
partnership, and we will be deemed to be entitled to our proportionate share of
the gross income of the partnership. The character of the assets and gross
income of the partnership generally retains the same character in our hands for
purposes of satisfying the gross income and asset tests described below.
QUALIFIED REIT SUBSIDIARIES
A "qualified REIT subsidiary" is a corporation, all of the stock of which is
owned by a REIT. Under the Internal Revenue Code, a qualified REIT subsidiary is
not treated as a separate corporation from the REIT. Rather, all of the assets,
liabilities, and items of income, deduction, and credit of the qualified REIT
subsidiary are treated as the assets, liabilities, and items of income,
deduction, and credit of the REIT for purposes of the REIT income and asset
tests described below.
INCOME TESTS
We must meet two annual gross income requirements to qualify as a REIT.
First, each year we must derive, directly or indirectly, at least 75% of our
gross income, excluding gross income from prohibited transactions, from
investments relating to real property or mortgages on real property,
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including "rents from real property" and mortgage interest, or from specified
temporary investments. Second, each year we must derive at least 95% of our
gross income, excluding gross income from prohibited transactions, from
investments meeting the 75% test described above, or from dividends, interest
and gain from the sale or disposition of stock or securities. For these
purposes, the term "interest" generally does not include any interest of which
the amount received depends on the income or profits of any person. An amount
will generally not be excluded from the term "interest," however, if such amount
is based on a fixed percentage of receipts or sales.
Any amount includable in gross income by us with respect to a regular or
residual interest in a real estate mortgage investment conduit is generally
treated as interest on an obligation secured by a mortgage on real property for
purposes of the 75% gross income test. If, however, less than 95% of the assets
of a real estate mortgage investment conduit consist of real estate assets, we
will be treated as receiving directly our proportionate share of the income of
the real estate mortgage investment conduit, which would generally include
non-qualifying income for purposes of the 75% gross income test. In addition, if
we receive interest income with respect to a mortgage loan that is secured by
both real property and other property and the principal amount of the loan
exceeds the fair market value of the real property on the date we purchased the
mortgage loan, interest income on the loan will be apportioned between the real
property and the other property, which apportionment would cause us to recognize
income that is not qualifying income for purposes of the 75% gross income test.
In general, and subject to the exceptions in the preceding paragraph, the
interest, original issue discount, and market discount income that we derive
from investments in mortgage backed securities, and mortgage loans will be
qualifying interest income for purposes of both the 75% and the 95% gross income
tests. It is possible, however, that interest income from a mortgage loan may be
based in part on the borrower's profits or net income, which would generally
disqualify such interest income for purposes of both the 75% and the 95% gross
income tests.
We may acquire construction loans or mezzanine loans that have shared
appreciation provisions. To the extent interest on a loan is based on the cash
proceeds from the sale or value of property, income attributable to such
provision would be treated as gain from the sale of the secured property, which
generally should qualify for purposes of the 75% and 95% gross income tests.
We may employ, to the extent consistent with the REIT Provisions of the
Code, forms of securitization of our assets under which a "sale" of an interest
in a mortgage loan occurs, and a resulting gain or loss is recorded on our
balance sheet for accounting purposes at the time of sale. In a "sale"
securitization, only the net retained interest in the securitized mortgage loans
would remain on our balance sheet. We may elect to conduct certain of its
securitization activities, including such sales, through one or more taxable
subsidiaries, or through qualified REIT subsidiaries, formed for such purpose.
To the extent consistent with the REIT Provisions of the Code, such entities
could elect to be taxed as real estate mortgage investment conduits or financial
asset securitization investment trusts.
Rents we receive will qualify as "rents from real property" only if the
following conditions are met:
- the amount of rent may not be based in whole or in part on the income or
profits of any person. "Rents from real property" may, however, include
rent based on a fixed percentage of receipts or sales;
- rents received from a tenant will not qualify as "rents from real
property" if the REIT, or an actual or constructive owner of 10% or more
of the REIT, actually or constructively owns 10% or more of such tenant;
- if rent attributable to personal property leased in connection with a
lease of real property is greater than 15% of the total rent received
under the lease, then the portion of rent attributable to personal
property will not qualify as "rents from real property"; and
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- to qualify as "rents from real property," the REIT generally may not
render services to tenants of the property, other than through an
independent contractor from whom the REIT derives no revenue. The REIT
may, however, provide services that are "usually or customarily rendered"
in connection with the rental of space for occupancy only and are not
otherwise considered "rendered to the occupant" of the property. In
addition, a REIT may provide a DE MINIMUS amount of non-customary
services. Finally, for taxable years beginning after the year 2000, a REIT
may provide certain non-customary services to tenants through a "taxable
REIT subsidiary," which is a taxable corporation owned by the REIT.
If we fail to satisfy one or both of the 75% or 95% gross income tests for
any year, we may still qualify as a REIT if we are entitled to relief under the
Internal Revenue Code. Generally, we may be entitled to relief if:
- our failure to meet the gross income tests was due to reasonable cause and
not due to willful neglect;
- we attach a schedule of the sources of our income to our Federal income
tax return; and
- any incorrect information on the schedule was not due to fraud with the
intent to evade tax.
It is not possible to state whether in all circumstances we would be
entitled to rely on these relief provisions. If these relief provisions do not
apply to a particular set of circumstances, we would not qualify as a REIT. As
discussed above in "--Taxation of Anthracite--General", even if these relief
provisions apply, and we retain our status as a REIT, a tax would be imposed
with respect to our income that does not meet the gross income tests. We may not
always be able to maintain compliance with the gross income tests for REIT
qualification despite periodically monitoring our income.
FORECLOSURE PROPERTY
Net income realized by us from foreclosure property would generally be
subject to tax at the maximum Federal corporate tax rate. Foreclosure property
means real property and related personal property that (1) is acquired by us
through foreclosure following a default on a lease of such property or a default
on indebtedness owed to us that is secured by the property and (2) for which we
make an election to treat the property as foreclosure property.
PROHIBITED TRANSACTION INCOME
Any gain realized by us on the sale of any property, other than foreclosure
property, held as inventory or otherwise held primarily for sale to customers in
the ordinary course of business will be prohibited transaction income, and
subject to a 100% penalty tax. Prohibited transaction income may also adversely
affect our ability to satisfy the gross income tests for qualification as a
REIT. Whether property is held as inventory or primarily for sale to customers
in the ordinary course of a trade or business depends on all the facts and
circumstances surrounding the particular transaction. While the Treasury
regulations provide standards which, if met, would not result in prohibited
transaction income, we may not be able to meet these standards in all
circumstances.
HEDGING TRANSACTIONS
We may enter into hedging transactions with respect to one or more of our
assets or liabilities. Our hedging transactions could take a variety of forms,
including interest rate swaps or cap agreements, options, futures contracts,
forward rate agreements, or similar financial instruments. To the extent that we
enter into hedging transactions to reduce our interest rate risk on indebtedness
incurred to acquire or carry real estate assets, any income, or gain from the
disposition of hedging transactions should be qualifying income for purposes of
the 95% gross income test, but not the 75% gross income test.
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ASSET TESTS
At the close of each quarter of each year, we also must satisfy three tests
relating to our assets. First, at least 75% of the value of our total assets
must be real estate assets, cash, cash items and government securities. For
purposes of this test, real estate assets include real estate mortgages, real
property, interests in other REITs and stock or debt instruments held for one
year or less that are purchased with the proceeds of a stock offering or a
long-term public debt offering. Second, not more than 25% of our total assets
may be represented by securities, other than those securities includable in the
75% asset class. Third, of the investments included in the 25% asset class, the
value of any one issuer's securities that we hold may not exceed 5% of the value
of our total assets, and we may not own more than 10% of the voting stock of a
corporation. In addition, for taxable years beginning after the year 2000,
(1) not more than 20% of the value of our total assets may be represented by
securities in one or more taxable REIT subsidiaries and (2) we generally are not
permitted to own more than 10% of the value of one issuer's securities.
We expect that any mortgage backed securities, real property, and temporary
investments that we acquire will generally be qualifying assets for purposes of
the 75% asset test, except to the extent that less than 95% of the assets of a
real estate mortgage investment conduit in which we own an interest consists of
"real estate assets." Mortgage loans, including distressed mortgage loans,
construction loans, bridge loans, and mezzanine loans also will generally be
qualifying assets for purposes of the 75% asset test to the extent that the
principal balance of each mortgage loan does not exceed the value of the
associated real property.
We anticipate that we may securitize all or a portion of the mortgage loans
which we acquire, in which event we will likely retain certain of the
subordinated and interest only classes of mortgage backed securities which may
be created as a result of such securitization. The securitization of mortgage
loans may be accomplished through one or more real estate mortgage investment
conduits established by us or, if a non-real estate mortgage investment conduit
securitization is desired, through one or more qualified REIT subsidiaries or
taxable subsidiaries established by us. The securitization of the mortgage loans
through either one or more real estate mortgage investment conduits or one or
more qualified REIT subsidiaries or taxable subsidiaries should not affect our
qualification as a REIT or result in the imposition of corporate income tax
under the taxable mortgage pool rules. Income realized by us from a real estate
mortgage investment conduit securitization could, however, be subject to a 100%
tax as a "prohibited transaction." See "--Prohibited Transaction Income."
After meeting the asset tests at the close of any quarter, we will not lose
our status as a REIT if we fail to satisfy the asset tests at the end of a later
quarter solely by reason of changes in asset values. In addition, if we fail to
satisfy the asset tests because we acquire securities or other property during a
quarter, we can cure this failure by disposing of sufficient nonqualifying
assets within 30 days after the close of that quarter.
We will monitor the status of the assets that we acquire for purposes of the
various asset tests and we will manage our portfolio in order to comply with
such tests.
ANNUAL DISTRIBUTION REQUIREMENTS
To qualify as a REIT, we are required to distribute dividends, other than
capital gain dividends, to our stockholders in an amount at least equal to the
sum of (1) 95% of our "REIT taxable income" and (2) 95% of our after tax net
income, if any, from foreclosure property, minus (3) the sum of certain items of
noncash income. For taxable years beginning after the year 2000, the foregoing
distribution levels are reduced to 90%. In general,"REIT taxable income" means
taxable ordinary income without regard to the dividends paid deduction.
We are required to distribute income in the taxable year which it is earned,
or in the following taxable year before we timely file our tax return if such
dividend distributions are declared and paid on
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or before our first regular dividend payment. Except as provided in "--Taxation
of Taxable U.S. Stockholders" below, these distributions are taxable to holders
of common stock in the year in which paid, even though these distributions
relate to our prior year for purposes of our 95% distribution requirement. To
the extent that we do not distribute all of our net capital gain or distribute
at least 95%, but less than 100% or our "REIT taxable income," we will be
subject to tax at regular corporate tax rates.
From time to time we may not have sufficient cash or other liquid assets to
meet the above distribution requirements due to timing differences between the
actual receipt of cash and payment of expenses, and the inclusion of income and
deduction of expenses in arriving at our taxable income. If these timing
differences occur, in order to meet the REIT distribution requirements, we may
need to arrange for short-term, or possibly long-term, borrowings, or to pay
dividends in the form of taxable stock dividends.
Under certain circumstances, we may be able to rectify a failure to meet a
distribution requirement for a year by paying "deficiency dividends" to our
stockholders in a later year, which may be included in our deduction for
dividends paid for the earlier year. Thus, we may be able to avoid being subject
to tax on amounts distributed as deficiency dividends. We will be required,
however, to pay interest based upon the amount of any deduction claimed for
deficiency dividends. In addition, we will be subject to a 4% excise tax on the
excess of the required distribution over the amounts actually distributed if we
should fail to distribute each year at least the sum of 85% of our ordinary
income for the year, 95% of our capital gain income for the year, and any
undistributed taxable income from prior periods.
RECORDKEEPING REQUIREMENTS
We are required to maintain records and request on an annual basis
information from specified stockholders. This requirement is designed to
disclose the actual ownership of our outstanding stock.
FAILURE TO QUALIFY
If we fail to qualify for taxation as a REIT in any taxable year, and the
relief provisions of the Internal Revenue Code described above do not apply, we
will be subject to tax, including any applicable alternative minimum tax, and
possibly increased state and local taxes, on our taxable income at regular
corporate rates. Such taxation would reduce the cash available for distribution
by us to our stockholders. Distributions to our stockholders in any year in
which we fail to qualify as a REIT will not be deductible by us and we will not
be required to distribute any amounts to our stockholders. If we fail to qualify
as a REIT, distributions to our stockholders will be subject to tax as ordinary
income to the extent of our current and accumulated earnings and profits and,
subject to certain limitations of the Internal Revenue Code, corporate
stockholders may be eligible for the dividends received deduction. Unless
entitled to relief under specific statutory provisions, we would also be
disqualified from taxation as a REIT for the four taxable years following the
year during which we lost our qualification. It is not possible to state whether
in all circumstances we would be entitled to statutory relief.
TAXATION OF TAXABLE U.S. STOCKHOLDERS
When we use the term "U.S. stockholders," we mean a holder of shares of our
stock who is, for United States federal income tax purposes:
- a citizen or resident of the United States;
- a corporation, partnership, or other entity created or organized in or
under the laws of the United States or of any state thereof or in the
District of Columbia, unless Treasury regulations provide otherwise;
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- an estate the income of which is subject to United States federal income
taxation regardless of its source; or
- a trust whose administration is subject to the primary supervision of a
United States court and which has one or more United States persons who
have the authority to control all substantial decisions of the trust.
DISTRIBUTIONS GENERALLY
Distributions out of our current or accumulated earnings and profits, other
than capital gain dividends will be taxable to our U.S. stockholders as ordinary
income. Provided we qualify as a REIT, our dividends will not be eligible for
the dividends received deduction generally available to U.S. stockholders that
are corporations.
To the extent that we make distributions in excess of our current and
accumulated earnings and profits, these distributions will be treated as a
tax-free return of capital to each U.S. stockholder, and will reduce the
adjusted tax basis which each U.S. stockholder has in its shares of stock by the
amount of the distribution, but not below zero. Return of capital distributions
in excess of a U.S. stockholder's adjusted tax basis in its shares will be
taxable as capital gain, provided that the shares have been held as capital
assets, and will be taxable as long-term capital gain if the shares have been
held for more than one year. Dividends we declare in October, November, or
December of any year and pay to a stockholder of record on a specified date in
any of those months will be treated as both paid by us and received by the
stockholder on December 31 of that year, provided we pay the dividend in January
of the following year. Stockholders may not include in their own income tax
returns any of our net operating losses or capital losses.
CAPITAL GAIN DISTRIBUTIONS
Distributions designated as net capital gain dividends will be taxable to
our U.S. stockholders as capital gain income. Such capital gain income will be
taxable to non-corporate U.S. stockholders at a 20% or 25% rate based on the
characteristics of the asset we sold that produced the gain. U.S. stockholders
that are corporations may be required to treat up to 20% of certain capital gain
dividends as ordinary income.
RETENTION OF NET CAPITAL GAINS
We may elect to retain, rather than distribute as a capital gain dividend,
our net capital gains. If we make this election, we would pay tax on such
retained capital gains. In such a case, our stockholders would generally:
- include their proportionate share of our undistributed net capital gains
in their taxable income;
- receive a credit for their proportionate share of the tax paid by us; and
- increase the adjusted basis of their stock by the difference between the
amount of their capital gain and their share of the tax paid by us;
PASSIVE ACTIVITY LOSSES AND INVESTMENT INTEREST LIMITATIONS
Distributions we make and gain arising from the sale or exchange by a U.S.
stockholder of our shares will not be treated as passive activity income. As a
result, U.S. stockholders will not be able to apply any "passive losses" against
income or gain relating to our stock. Distributions we make, to the extent they
do not constitute a return of capital, generally will be treated as investment
income for purposes of computing the investment interest limitation.
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DISPOSITIONS OF STOCK
If you are a U.S. stockholder and you sell or dispose of your shares of
stock, you will recognize gain or loss for Federal income tax purposes in an
amount equal to the difference between the amount of cash and the fair market
value of any property you receive on the sale or other disposition and your
adjusted tax basis in the shares of stock. This gain or loss will be capital
gain or loss if you have held the stock as a capital asset, and will be
long-term capital gain or loss if you have held the stock for more than one
year. In general, if you are a U.S. stockholder and you recognize loss upon the
sale or other disposition of stock that you have held for six months or less,
the loss you recognize will be treated as a long-term capital loss to the extent
you received distributions from us which were required to be treated as
long-term capital gains.
BACKUP WITHHOLDING
We report to our U.S. stockholders and the Internal Revenue Service the
amount of dividends paid during each calendar year, and the amount of any tax
withheld. Under the backup withholding rules, a stockholder may be subject to
backup withholding at the rate of 31% with respect to dividends paid unless the
holder is a corporation or comes within other exempt categories and, when
required, demonstrates this fact, or provides a taxpayer identification number
or social security number, certifies as to no loss of exemption from backup
withholding, and otherwise complies with applicable requirements of the backup
withholding rules. A U.S. stockholder that does not provide us with his correct
taxpayer identification number or social security number may also be subject to
penalties imposed by the Internal Revenue Service. Backup withholding is not an
additional tax. Any amount paid as backup withholding will be creditable against
the stockholder's income tax liability. In addition, we may be required to
withhold a portion of capital gain distributions to any stockholders who fail to
certify their non-foreign status.
TAXATION OF TAX-EXEMPT STOCKHOLDERS
The Internal Revenue Service has ruled that amounts distributed as dividends
by a REIT do not constitute unrelated business taxable income when received by a
tax-exempt entity. Based on that ruling, provided that a tax-exempt stockholder,
has not held its shares as "debt financed property" within the meaning of the
Internal Revenue Code and the shares are not otherwise used in a unrelated trade
or business, dividend income on our stock and income from the sale of our stock
should not be unrelated business taxable income to a tax-exempt stockholder.
Generally, debt financed property is property, the acquisition or holding of
which was financed through a borrowing by the tax-exempt stockholder.
For tax-exempt stockholders which are social clubs, voluntary employee
benefit associations, supplemental unemployment benefit trusts, and qualified
group legal services plans exempt from Federal income taxation under Sections
501(c)(7), (c)(9), (c)(17) and (c)(20) of the Internal Revenue Code,
respectively, income from an investment in our shares will constitute unrelated
business taxable income unless the organization is able to properly claim a
deduction for amounts set aside or placed in reserve for certain purposes so as
to offset the income generated by its investment in our shares. These
prospective investors should consult their tax advisors concerning these "set
aside" and reserve requirements.
Notwithstanding the above, however, a portion of the dividends paid by a
"pension-held REIT" may be treated as unrelated business taxable income as to
any pension trust which:
- is described in Section 401(a) of the Internal Revenue Code;
- is tax-exempt under Section 501(a) of the Internal Revenue Code; and
- holds more than 10%, by value, of the interests in the REIT.
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Tax-exempt pension funds that are described in Section 401(a) of the
Internal Revenue Code are referred to below as "qualified trusts."
A REIT is a "pension held REIT" if:
- it would not have qualified as a REIT but for the fact that
Section 856(h)(3) of the Internal Revenue Code provides that stock owned
by a qualified trust is treated, for purposes of the 5/50 Rule, as owned
by the beneficiaries of the trust, rather than by the trust itself; and
- either at least one qualified trust holds more than 25%, by value, of the
interests in the REIT, or one or more qualified trusts, each of which owns
more than 10%, by value, of the interests in the REIT, holds in the
aggregate more than 50%, by value, of the interests in the REIT.
The percentage of any REIT dividend treated as unrelated business taxable
income is equal to the ratio of:
- the unrelated business taxable income earned by the REIT, treating the
REIT as if it were a qualified trust and therefore subject to tax on
unrelated business taxable income, to
- the total gross income of the REIT.
A DE MINIMIS exception applies where the percentage is less than 5% for any
year. As a result of the limitations on the transfer and ownership of stock
contained in the charter, we do not expect to be classified as a "pension-held
REIT."
TAXATION OF NON-U.S. STOCKHOLDERS
The rules governing Federal income taxation of nonresident alien
individuals, foreign corporations, foreign partnerships, and other foreign
stockholders (collectively, "non-U.S. stockholders") are complex and no attempt
will be made herein to provide more than a summary of such rules.
PROSPECTIVE NON-U.S. STOCKHOLDERS SHOULD CONSULT THEIR TAX ADVISORS TO
DETERMINE THE IMPACT OF FOREIGN, FEDERAL, STATE, AND LOCAL INCOME TAX LAWS WITH
REGARD TO AN INVESTMENT IN OUR SECURITIES AND OF OUR ELECTION TO BE TAXED AS A
REAL ESTATE INVESTMENT TRUST INCLUDING ANY REPORTING REQUIREMENTS.
Distributions to non-U.S. stockholders that are not attributable to gain
from sales or exchanges by us of U.S. real property interests and are not
designated by us as capital gain dividends or retained capital gains will be
treated as dividends of ordinary income to the extent that they are made out of
our current or accumulated earnings and profits. Such distributions will
generally be subject to a withholding tax equal to 30% of the distribution
unless an applicable tax treaty reduces or eliminates that tax. However, if
income from an investment in our stock is treated as effectively connected with
the non-U.S. stockholder's conduct of a U.S. trade or business, the non-U.S.
stockholder generally will be subject to Federal income tax at graduated rates,
in the same manner as U.S. stockholders are taxed with respect to such
distributions (and also may be subject to the 30% branch profits tax in the case
of a non-U.S. stockholder that is a corporation). We expect to withhold U.S.
income tax at the rate of 30% on the gross amount of any distributions made to a
non-U.S. stockholder unless (i) a lower treaty rate applies and any required
form, such as IRS Form 1001 or IRS Form W-8BEN, evidencing eligibility for that
reduced rate is filed by the non-U.S. stockholder with us or (ii) the non-U.S.
stockholder files an IRS Form 4224 or IRS Form W-8ECI with us claiming that the
distribution is effectively connected income.
Any portion of the dividends paid to non-U.S. stockholders that is treated
as excess inclusion from a real estate mortgage investment conduit income will
not be eligible for exemption from the 30% withholding tax or a reduced treaty
rate. In addition, if Treasury regulations are issued allocating our
36
<PAGE>
excess inclusion income from non-real estate mortgage investment conduits among
our stockholders, some percentage of the our dividends would not be eligible for
exemption from the 30% withholding tax or a reduced treaty withholding tax rate
in the hands of non-U.S. stockholders.
Distributions in excess of our current and accumulated earnings and profits
will not be taxable to a stockholder to the extent that such distributions do
not exceed the adjusted basis of the stockholder's stock, but rather will reduce
the adjusted basis of such shares. To the extent that distributions in excess of
current and accumulated earnings and profits exceed the adjusted basis of a
non-U.S. stockholder's stock, such distributions will give rise to tax liability
if the non-U.S. stockholder would otherwise be subject to tax on any gain from
the sale or disposition of its stock, as described below. Because it generally
cannot be determined at the time a distribution is made whether or not such
distribution will be in excess of current and accumulated earnings and profits,
the entire amount of any distribution normally will be subject to withholding at
the same rate as a dividend. However, amounts so withheld are refundable to the
extent it is subsequently determined that such distribution was, in fact, in
excess of our current and accumulated earnings and profits. We are also required
to withhold 10% of any distribution in excess of our current and accumulated
earnings and profits. Consequently, although we intend to withhold at a rate of
30% on the entire amount of any distribution, to the extent that we do not do
so, any portion of a distribution not subject to withholding at a rate of 30%
will be subject to withholding at a rate of 10%.
For any year in which we qualify as a REIT, distributions that are
attributable to gain from sales or exchanges of a U.S. real property interest,
which includes certain interests in real property, but generally does not
include mortgage loans or mortgage backed securities, will be taxed to a
Non-U.S. stockholder under the provisions of the Foreign Investment in Real
Property Tax Act of 1980 ("FIRPTA"). Under FIRPTA, distributions attributable to
gain from sales of U.S. real property interests are taxed to a non-U.S.
stockholder as if such gain were effectively connected with a U.S. business.
Non-U.S. stockholders thus would be taxed at the normal capital gain rates
applicable to U.S. stockholders (subject to applicable alternative minimum tax
and a special alternative minimum tax in the case of nonresident alien
individuals). Distributions subject to FIRPTA also may be subject to the 30%
branch profits tax in the hands of a non-U.S. stockholder that is a corporation.
We are required to withhold 35% of any distribution that is designated by us as
a U.S. real property capital gains dividend. The amount withheld is creditable
against the non-U.S. stockholder's FIRPTA tax liability.
Gain recognized by a non-U.S. stockholder upon a sale of our stock generally
will not be taxed under FIRPTA if we are a "domestically controlled REIT," which
is a REIT in which at all times during a specified testing period less than 50%
in value of the stock was held directly or indirectly by non-U.S. persons.
Although we currently believe that we are a "domestically controlled REIT,"
because our stock is publicly traded, no assurance can be given that we are or
will remain a "domestically controlled REIT." Even if we do not qualify as a
"domestically controlled REIT," a non-U.S. stockholder that owns, actually or
constructively, 5% or less of our stock throughout a specified testing period
will not recognize taxable gain on the sale of his stock under FIRPTA if the
shares are traded on an established securities market.
Gain not subject to FIRPTA will be taxable to a non-U.S. stockholder if
(i) the non-U.S. stockholder's investment in the stock is effectively connected
with a U.S. trade or business, in which case the non-U.S. stockholder will be
subject to the same treatment as U.S. stockholders with respect to such gain, or
(ii) the non-U.S. stockholder is a nonresident alien individual who was present
in the U.S. for 183 days or more during the taxable year and other conditions
are met, in which case the nonresident alien individual will be subject to a 30%
tax on the individual's capital gains. If the gain on the sale of the stock were
to be subject to taxation under FIRPTA, the non-U.S. stockholder would be
subject to the same treatment as U.S. stockholders with respect to such gain
(subject to applicable alternative minimum tax, a special alternative minimum
tax in the case of nonresident alien individuals, and the possible application
of the 30% branch profits tax in the case of non-U.S. corporations).
37
<PAGE>
STATE, LOCAL AND FOREIGN TAXATION
We may be required to pay state, local and foreign taxes in various state,
local and foreign jurisdictions, including those in which we transact business
or make investments, and our stockholders may be required to pay state, local
and foreign taxes in various state, local and foreign jurisdictions, including
those in which they reside. Our state, local and foreign tax treatment may not
conform to the Federal income tax consequences summarized above. In addition,
your state, local and foreign tax treatment may not conform to the Federal
income tax consequences summarized above. Consequently, you should consult your
tax advisor regarding the effect of state, local and foreign tax laws on an
investment in our securities.
POSSIBLE LEGISLATIVE OR OTHER ACTIONS AFFECTING REITS.
The rules dealing with Federal income taxation are constantly under review
by persons involved in the legislative process and by the Internal Revenue
Service and the U.S. Treasury Department. Changes to the tax law, which may have
retroactive application, could adversely affect us and our investors. It cannot
be predicted whether, when, in what forms, or with what effective dates, the tax
law applicable to us or our investors will be changed.
SELLING SHAREHOLDER
As of March 6, 2000, RECP II Anthracite, LLC beneficially owned 1,200,000
shares of our Series A preferred stock, currently convertible into 4,081,680
shares of common stock. The selling shareholder acquired those shares from us on
December 2, 1999 in a private placement. Registration of those shares of
Series A preferred stock or the shares of common stock into which they are
convertible does not necessarily mean that the selling shareholder will sell all
or any of those Series A preferred or common shares. Because the selling
shareholder may sell all or some of those Series A preferred or common shares,
no estimate can be given as to the number of shares of our Series A preferred
stock or common stock that will be held by the selling shareholder after
completion of any offering. Andrew P. Rifkin, a managing director of the selling
shareholder, was appointed as a director of Anthracite in December 1999.
In connection with the acquisition of Series A preferred stock by the
selling shareholder, we entered into a registration rights agreement granting to
the selling shareholder and its transferes and assigns demand and "piggy-back"
registration rights with respect to the Series A preferred stock and shares of
common stock issuable upon conversion of the Series A preferred stock.
PLAN OF DISTRIBUTION
This prospectus, including any amendment or supplement, may be used in
connection with sales of up to 1,200,000 shares of Series A preferred stock
issued to the selling shareholder, or the common stock issuable upon conversion
of the Series A preferred stock or any of the securities issued as (or issuable
upon the conversion or exercise of any warrant, right or other security which is
issued as) a dividend or other distribution with respect to or in exchange
generally by us for, or in replacement by us generally of, the Series A
preferred stock or common stock issuable upon conversion of the Series A
preferred stock, subject to the terms of a registration rights agreement between
the selling shareholder and us.
The selling shareholder, or its pledgees, assignees, transferees or other
successors in interest may offer its shares of Series A preferred stock or
common stock at various times in one or more of the following transactions:
- in exchange or the over-the-counter market transactions;
38
<PAGE>
- in private transactions other than exchange or over-the-counter market
transactions;
- through short sales or put and call option transactions;
- through underwriters, brokers or dealers (who may act as agent or
principal);
- directly to one or more purchasers;
- through agents;
- through distribution by the selling shareholder or its successor in
interest to its members, partners or shareholders;
- in negotiated transactions;
- by pledge to secure debts and other obligations; or
- in a combination of such methods.
The selling shareholder may sell its shares at market prices prevailing at the
time of sale, at prices related to such prevailing market prices, at negotiated
prices or at fixed prices.
The selling shareholder also may resell all or a portion of its Series A
preferred stock or common stock issuable upon conversion of the Series A
preferred stock in open market transactions in reliance upon Rule 144 under the
Securities Act, provided it meets the criteria and conforms to the requirements
of Rule 144.
The selling shareholder may use underwriters, brokers, dealers or agents to
sell its shares. Any underwriters, brokers, dealers or agents may receive
compensation in the form of discounts, concessions or commissions from the
selling shareholder, the purchaser or such other persons who may be effecting
sales hereunder (which discounts, concessions or commissions as to particular
underwriters, brokers, dealers or agents may be in excess of those customary in
the types of transactions involved). Underwriters may sell the Series A
preferred stock or common shares to or through dealers, and such dealers may
receive compensation in the form of discounts, concessions or commissions from
the underwriters and/or commissions from the purchasers for whom they may act as
agents. The selling shareholder or other persons effecting sales hereunder, and
any such underwriters, brokers, dealers and agents may be deemed to be
"underwriters" within the meaning of the Securities Act, and any discounts or
commissions they receive and any profit on the sale of the Series A preferred
stock or common shares they realize may be deemed to be underwriting discounts
and commissions under the Securities Act. Some sales may involve shares in which
the selling shareholder has granted security interests and which are being sold
because of foreclosure of those security interests. We have agreed to indemnify
the selling shareholder against certain liabilities, including liabilities
arising under the Securities Act. The selling shareholder or other persons
effecting sales hereunder may agree to indemnify any such underwriters, dealers
and agents against certain liabilities, including liabilities under the
Securities Act.
The selling shareholder may enter into hedging transactions with
broker-dealers or other financial institutions. In connection with such
transactions, broker-dealers or other financial institutions may engage in short
sales of our shares of our Series A preferred or common stock in the course of
hedging the positions they assume with the selling shareholder. The selling
shareholder may also enter into options or other transactions with
broker-dealers or other financial institutions which require the delivery to
such broker-dealer or other financial institution of our shares of Series A
preferred stock or common stock offered hereby, which shares such broker-dealer
or other financial institution may resell pursuant to this prospectus (as
supplemented or amended to reflect such transaction).
Under the securities laws of certain states, the securities offered by this
prospectus may be sold in those states only through registered or licensed
brokers or dealers. In addition, in certain states the
39
<PAGE>
securities offered by this prospectus may not be sold unless they have been
registered or qualified for sale in such state or an exemption from registration
or qualification is available and is complied with. In connection with any
resales by the selling shareholder, a prospectus supplement, if required, will
be filed under Rule 424(b) under the Securities Act, disclosing the number of
shares involved and other details of such resale to the extent appropriate.
Any common stock sold by the selling shareholder pursuant to a prospectus
supplement will be listed on the NYSE, subject to official notice of issuance.
Any underwriters to whom the selling shareholder sells securities for public
offering and sale may make a market in the securities, but such underwriters
will not be obligated to do so and may discontinue any market making at any time
without notice. The securities, other than the common stock, may or may not be
listed on a national securities exchange.
LEGAL OPINIONS
Some legal matters relating to the securities offered hereby will be passed
upon for us by Skadden, Arps, Slate, Meagher & Flom LLP. Certain legal matters
relating to Maryland law relating to the validity of the securities being
offered by this prospectus are being passed upon for us by Miles & Stockbridge
P.C.
EXPERTS
Our financial statements incorporated in this prospectus by reference from
our Annual Report on Form 10-K has been audited by Deloitte & Touche LLP,
independent auditors, as stated in their report, which is incorporated herein by
reference, and have been so incorporated in reliance upon the report of such
firm given upon their authority as experts in accounting and auditing.
40
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the expenses to be borne by the registrant in
connection with the offerings described in this Registration Statement. All such
expenses other than the Securities and Exchange Commission registration fee are
estimates.
<TABLE>
<S> <C>
Securities and Exchange Commission Registration Fee......... $ 52,800
Transfer Agents, Trustees and Depositary's Fees and
Expenses.................................................. 10,000
Printing and Engraving Fees and Expenses.................... 25,000
Accounting Fees and Expenses................................ 10,000
Legal Fees.................................................. 75,000
Rating Agency Fees.......................................... 10,000
Miscellaneous (including Listing Fees, if applicable)....... 4,400
--------
Total..................................................... $187,200
========
</TABLE>
As permitted by the MGCL, the registrant's Charter obligates it to indemnify its
present and former directors and officers and the Manager and its employees,
officers, directors and controlling persons and to pay or reimburse reasonable
expenses for such persons in advance of the final disposition of a proceeding to
the maximum extent permitted from time to time by Maryland law. The MGCL permits
a corporation to indemnify its present and former directors and officers, among
others, against judgments, penalties, fines, settlements and reasonable expenses
actually incurred by them in connection with any proceeding to which they may be
made a party by reason of their service in those or other capacities, unless it
is established that (a) the act or omission of the director or officer was
material to the matter giving rise to such proceeding and (i) was committed in
bad faith, or (ii) was the result of active and deliberate dishonesty, (b) the
director or officer actually received an improper personal benefit in money,
property or services, or (c) in the case of any criminal proceeding, the
director or officer had reasonable cause to believe that the act or omission was
unlawful. The registrant's Bylaws implement the provisions relating to
indemnification contained in its Charter. The MCGL permits the charter of a
Maryland corporation to include a provision limiting the liability of its
directors and officers to the corporation and its stockholders for money
damages, except to the extent that (i) the person actually received an improper
benefit or profit in money, property or services, or (ii) a judgment or other
final adjudication is entered in a proceeding based on a finding that the
person's action, or failure to act, was the result of active and deliberate
dishonesty and was material to the cause of action adjudicated in the
proceeding. The registrant's Charter contains a provision providing for
elimination of the liability of its directors or officers to it or its
stockholders for money damages to the maximum extent permitted by Maryland law
from time to time. The registrant will maintain for the benefit of its officers
and directors, officers' and directors' insurance.
II-1
<PAGE>
ITEM 16. EXHIBITS
The following is a list of all exhibits filed as a part of this Registration
Statement on Form S-3, including those incorporated herein by reference.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBITS
- --------------------- ------------------------------------------------------------
<C> <S>
4.1 Articles Supplementary with respect to the Series A
preferred stock of Anthracite Capital, Inc. (incorporated
herein by reference to the Current Report on Form 8-K of
Anthracite Capital, Inc. on December 2, 1999).
4.2 Registration Rights Agreement, dated as of December 2, 1999,
by and between Anthracite Capital, Inc. and RECP II
Anthacite, LLC (incorporated herein by reference to the
Current Report on Form 8-K of Anthracite Capital, Inc. on
December 2, 1999).
4.3 Securities Purchase Agreement, dated as of December 2, 1999,
by and between Anthracite Capital, Inc. and RECP II
Anthracite, LLC (incorporated herein by reference to the
Current Report on Form 8-K of Anthracite Capital, Inc. on
December 2, 1999).
5.1 Opinion of Miles & Stockbridge P.C.
12.1 Statement re: Computation of Ratio of Earnings to Fixed
Charges.
23.1 Consent of Deloitte & Touche LLP, Independent Accountants.
23.2 Consent of Miles & Stockbridge P.C. (included in Exhibit
5.1).
24.1 Power of Attorney of certain officers and directors of
Anthracite Capital, Inc. (included on signature page).
24.2 Power of Attorney of Andrew P. Rifkin.
</TABLE>
ITEM 17. UNDERTAKINGS
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement to include any material
information with respect to the plan of distribution not previously disclosed in
the registration statement or any material change to such information in the
registration statement,
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof;
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
The undersigned Registrant hereby further undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provisions set forth in Item 15, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
II-2
<PAGE>
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
The undersigned registrant hereby undertakes to file an application for the
purpose of determining the eligibility of the trustee to act under subsection
(a) of Section 310 of the Trust Indenture Act in accordance with the rules and
regulations prescribed by the Commission under Section 305(b)(2) of the Act.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Anthracite
Capital, Inc. certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement or amendment thereto to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of New York, in the State of
New York on March 10, 2000.
ANTHRACITE CAPITAL, INC.
By /s/ RICHARD M. SHEA
-----------------------------------------
Name: Richard M. Shea
Title: Chief Operating Officer and Chief
Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
*
- ------------------------------ Chairman of the Board March 10, 2000
Laurence D. Fink
President and Chief
* Executive Officer and
- ------------------------------ Director (Principal March 10, 2000
Hugh R. Frater Executive Officer)
Chief Operating Officer and
/s/ RICHARD M. SHEA Chief Financial Officer
- ------------------------------ (Principal Financial March 10, 2000
Richard M. Shea Officer and Principal
Accounting Officer)
*
- ------------------------------ Director March 10, 2000
Donald G. Drapkin
*
- ------------------------------ Director March 10, 2000
Carl Guether
*
- ------------------------------ Director March 10, 2000
Jeffrey C. Keil
*
- ------------------------------ Director March 10, 2000
Andrew P. Rifkin
*
- ------------------------------ Director March 10, 2000
Kendrick R. Wilson, III
*By: /s/ RICHARD M. SHEA
------------------------- Attorney-in-fact March 10, 2000
Richard M. Shea
II-4
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBITS
- --------------------- -----------------------
<C> <S>
4.1 Articles Supplementary with respect to the Series A
preferred stock of Anthracite Captial, Inc. (incorporated
herein by reference to the Current Report on Form 8-K of
Anthracite Capital, Inc. filed on December 2, 1999).
4.2 Registration Rights Agreement, dated as of December 2, 1999,
by and between Anthracite Captial, Inc. and RECP II
Anthracite, LLC. (incorporated herein by reference to the
Current Report on Form 8-K of Anthracite Capital, Inc. filed
on December 2, 1999).
4.3 Securities Purchase Agreement, dated as of December 2, 1999,
by and between Anthracite Capital, Inc. and RECP II
Anthracite, LLC. (incorporated herein by reference to the
Current Report on Form 8-K of Anthracite Capital, Inc. filed
on December 2, 1999).
5.1 Opinion of Miles & Stockbridge P.C.
12.1 Statement re: Computation of Ratio of Earnings to Fixed
Charges.
23.1 Consent of Deloitte & Touche LLP, Independent Accountants.
23.2 Consent of Miles & Stockbridge P.C. (included in Exhibit
5.1).
24.1 Power of Attorney of certain officers and directors of
Anthracite Capital, Inc. (included on signature page).
24.2 Power of Attorney of Andrew P. Rifkin.
</TABLE>
<PAGE>
EXHIBIT 5.1
March 10, 2000
Anthracite Capital, Inc.
345 Park Avenue, 29th Floor
New York, New York 10154
Ladies and Gentlemen:
We have acted as special Maryland counsel to Anthracite Capital, Inc., a
Maryland corporation (the "Company"), in connection with the registration of
certain securities of the Company on its Registration Statement on Form S-3
(Registration No. 333-_____, together with any and all exhibits and
post-effective amendments thereto, the "Registration Statement") filed by the
Company with the Securities and Exchange Commission under the Securities Act
of 1933, as amended (the "Securities Act"), with respect to the offering of
(i) up to 1,200,000 shares of 10.5% Series A Senior Cumulative Convertible
Redeemable Preferred Stock, par value $.001 per share (the "Series A
Preferred Shares") by RECP II Anthracite, LLC, and (ii) up to 4,081,680
shares of the Company's common stock, $.001 par value per share (the "Common
Shares"), the number of Common Shares into which the Series A Preferred
Shares were convertible as of the date that the Series A Preferred Shares
were issued.
We have examined the Registration Statement, and such other documents,
corporate records, laws and regulations as we have deemed necessary for the
purposes of giving the opinions set forth in this opinion letter. Based upon
that examination and subject to the assumptions and qualifications set forth
herein, we are of the opinion that:
1. The Series A Preferred Shares have been duly authorized, are
validly issued, fully paid and non-assessable.
2. When issued by the Company upon conversion of the Series A
Preferred Shares in accordance with the terms of the Series A Preferred
Shares, the Common Shares into which the Series A Preferred Shares are
convertible will be validly issued, fully paid and non-assessable.
We have relied as to certain matters on information obtained from public
officials and officers of the Company. We express no opinion with respect to
the laws of, or the effect or applicability of the laws of, any jurisdiction
other than the laws of the State of Maryland.
<PAGE>
Anthracite Capital, Inc.
March 10, 2000
Page 2
We hereby consent to the use of our name under the heading "Legal
Matters" in the Prospectus forming a part of the Registration Statement and
to the filing of this opinion letter with the Registration Statement as
Exhibit 5.1 thereto. In giving our consent, we do not thereby admit that we
are in the category of persons whose consent is required under Section 7 of
the Securities Act or the rules and regulations of the Securities and
Exchange Commission thereunder. The opinion expressed herein is limited to
the matters set forth in this letter and no other opinion should be inferred
beyond the matters expressly stated.
Very truly yours,
Miles & Stockbridge P.C.
By: /s/ J.W. Thompson Webb
------------------------
Principal
<PAGE>
EXHIBIT 12.1
ANTHRACITE CAPITAL, INC.
RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
MARCH 24, 1998 NINE MONTHS
THROUGH ENDED
DECEMBER 31, 1998 SEPTEMBER 30, 1999
----------------- ------------------
<S> <C> <C>
Net Income (loss)........................................... (1,389) 20,467
Add:
Interest Expense.......................................... 23,478 14,553
Less:
Earnings as adjusted...................................... 22,089 35,020
Fixed Charges (interest expense).......................... 23,478 14,553
Ratio of earnings to fixed charges........................ 0.94x 2.41x
</TABLE>
<PAGE>
EXIHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the use in this Registration Statement of Anthracite Capital,
Inc. on Form S-3 of our report dated March 17, 1999 which is incorporated by
reference within such Registration Statement.
We also consent to the reference to us under the heading "Experts" in the
Prospectus.
New York, New York
March 10, 2000
<PAGE>
EXHIBIT 24.2
POWER OF ATTORNEY
KNOWN BY ALL PERSONS BY THESE PRESENTS, that the person whose signature
appears below, constitutes and appoints Richard M. Shea, his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for such person and in his name, place and stead, in any and all capacities, in
connection with the registrant's Registration Statement in the name and on
behalf of the registrant or on behalf of the undersigned as a director or
officer of the registrant, on Form S-3 under the Securities Act of 1933, as
amended, including, without limiting the generality of the foregoing, to sign
the Registration Statement and any and all amendments (including post-effective
amendments) to the Registration Statement, and any subsequent registration
statement filed pursuant to Rule 462(b) under the Securities Act of 1933, as
amended, and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorney-in-fact and agent full power and authority to do and perform each
and every act and thing requisite and necessary to be done and perform each and
every act and thing requisite and necessary to be done in connection therewith,
as fully to all intents and purposes as he might or could do in person, thereby
ratifying and confirming all that said attorney-in-fact and agent or his
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
By: /s/ Andrew P. Rifkin
----------------------------------------
Name: Andrew P. Rifkin
Title: Director
