[DESCRIPTION] Schedule 13D
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
------------
SCHEDULE 13D
(RULE 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT
TO RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO
RULE 13d-2(a)
ANTHRACITE CAPITAL, INC.
- --------------------------------------------------------------------------------
(Name of Issuer)
COMMON STOCK
$0.001 PAR VALUE
- --------------------------------------------------------------------------------
(Title of Class of Securities)
037023108
- --------------------------------------------------------------------------------
(CUSIP Number)
IVY DODES
DONALDSON, LUFKIN & JENRETTE, INC.
277 PARK AVENUE
NEW YORK, NEW YORK 10172
(212) 892-4866
- --------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
DECEMBER 2, 1999
- --------------------------------------------------------------------------------
(Date of Event Which Requires Filing of This Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition that is the subject of this Schedule 13D, and is filing
this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the
following box |_|.
<PAGE>
CUSIP No. 037023108 13D Page 1 of 17 Pages
- --------------------------------------------------------------------------------
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
RECP II Anthracite, LLC
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) |_|
(b) |X|
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS
OO - See Item 3
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEM 2(d) or 2(e) |_|
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
0
--------------------------------------------------------
NUMBER OF 8 SHARED VOTING POWER
SHARES
BENEFICIALLY 4,081,680
OWNED BY --------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING
PERSON 0
WITH --------------------------------------------------------
10 SHARED DISPOSITIVE POWER
4,081,680
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,081,680 - See Item 5
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES |_|
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
16.3% - See Item 5
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
OO
- --------------------------------------------------------------------------------
(Page 2 of 133 Pages)
<PAGE>
CUSIP No. 037023108 13D Page 1 of 17 Pages
- --------------------------------------------------------------------------------
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
DLJ Real Estate Capital Partners II, L.P.
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) |_|
(b) |X|
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS
OO - See Item 3
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEM 2(d) or 2(e) |_|
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
0
--------------------------------------------------------
NUMBER OF 8 SHARED VOTING POWER
SHARES
BENEFICIALLY 4,081,680
OWNED BY --------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING
PERSON 0
WITH --------------------------------------------------------
10 SHARED DISPOSITIVE POWER
4,081,680
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,081,680 - See Item 5
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES |_|
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
16.3% - See Item 5
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
PN
- --------------------------------------------------------------------------------
(Page 3 of 133 Pages)
<PAGE>
CUSIP No. 037023108 13D Page 3 of 17 Pages
- --------------------------------------------------------------------------------
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
DLJ Real Estate Capital II, L.P.
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) |_|
(b) |X|
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS
Not applicable
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEM 2(d) or 2(e) |_|
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
0
--------------------------------------------------------
NUMBER OF 8 SHARED VOTING POWER
SHARES
BENEFICIALLY 4,081,680
OWNED BY --------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING
PERSON 0
WITH --------------------------------------------------------
10 SHARED DISPOSITIVE POWER
4,081,680
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,081,680 - See Item 5
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES |_|
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
16.3% - See Item 5
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
PN
- --------------------------------------------------------------------------------
(Page 4 of 133 Pages)
<PAGE>
CUSIP No. 037023108 13D Page 4 of 17 Pages
- --------------------------------------------------------------------------------
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
DLJ Real Estate Capital II, Inc.
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) |_|
(b) |X|
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS
Not applicable
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEM 2(d) or 2(e) |_|
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
0
--------------------------------------------------------
NUMBER OF 8 SHARED VOTING POWER
SHARES
BENEFICIALLY 4,081,680
OWNED BY --------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING
PERSON 0
WITH --------------------------------------------------------
10 SHARED DISPOSITIVE POWER
4,081,680
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,081,680 - See Item 5
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES |_|
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
16.3% - See Item 5
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
CO
- --------------------------------------------------------------------------------
(Page 5 of 133 Pages)
<PAGE>
CUSIP No. 037023108 13D Page 5 of 17 Pages
- --------------------------------------------------------------------------------
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
DLJ Real Estate Capital Partners, Inc.
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) |_|
(b) |X|
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS
Not applicable
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEM 2(d) or 2(e) |_|
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
0
--------------------------------------------------------
NUMBER OF 8 SHARED VOTING POWER
SHARES
BENEFICIALLY 4,081,680
OWNED BY --------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING
PERSON 0
WITH --------------------------------------------------------
10 SHARED DISPOSITIVE POWER
4,081,680
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,081,680 - See Item 5
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES |_|
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
16.3% - See Item 5
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
CO
- --------------------------------------------------------------------------------
(Page 6 of 133 Pages)
<PAGE>
CUSIP No. 037023108 13D Page 6 of 17 Pages
- --------------------------------------------------------------------------------
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
DLJ Capital Investors, Inc.
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) |_|
(b) |X|
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS
Not applicable
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEM 2(d) or 2(e) |_|
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
0
--------------------------------------------------------
NUMBER OF 8 SHARED VOTING POWER
SHARES
BENEFICIALLY 4,081,680
OWNED BY --------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING
PERSON 0
WITH --------------------------------------------------------
10 SHARED DISPOSITIVE POWER
4,081,680
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,081,680 - See Item 5
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES |_|
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
16.3% - See Item 5
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
CO, HC
- --------------------------------------------------------------------------------
(Page 7 of 133 Pages)
<PAGE>
CUSIP No. 037023108 13D Page 7 of 17 Pages
- --------------------------------------------------------------------------------
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
Donaldson, Lufkin & Jenrette, Inc.
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) |_|
(b) |X|
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS
Not applicable
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEM 2(d) or 2(e) |_|
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
0
--------------------------------------------------------
NUMBER OF 8 SHARED VOTING POWER
SHARES
BENEFICIALLY 4,081,680
OWNED BY --------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING
PERSON 0
WITH --------------------------------------------------------
10 SHARED DISPOSITIVE POWER
4,081,680
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,081,680 - See Item 5
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES |_|
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
16.3% - See Item 5
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
CO, HC
- --------------------------------------------------------------------------------
(Page 8 of 133 Pages)
<PAGE>
CUSIP No. 037023108 13D Page 8 of 17 Pages
- --------------------------------------------------------------------------------
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
AXA Financial, Inc.
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) |_|
(b) |_|
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS
Not applicable
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEM 2(d) or 2(e) |_|
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
See Item 5
--------------------------------------------------------
NUMBER OF 8 SHARED VOTING POWER
SHARES
BENEFICIALLY See Item 5
OWNED BY --------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING
PERSON See Item 5
WITH --------------------------------------------------------
10 SHARED DISPOSITIVE POWER
See Item 5
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
See Item 5 (not to be construed as an admission of beneficial ownership)
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES |_|
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
See Item 5
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
CO, HC
- --------------------------------------------------------------------------------
(Page 9 of 133 Pages)
<PAGE>
CUSIP No. 037023108 13D Page 9 of 17 Pages
- --------------------------------------------------------------------------------
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
AXA
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) |_|
(b) |_|
- --------------------------------------------------------------------------------
3 SEC USE ONLY
Not applicable
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS
Not applicable
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEM 2(d) or 2(e) |_|
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
France
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
See Item 5
--------------------------------------------------------
NUMBER OF 8 SHARED VOTING POWER
SHARES
BENEFICIALLY See Item 5
OWNED BY --------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING
PERSON See Item 5
WITH --------------------------------------------------------
10 SHARED DISPOSITIVE POWER
See Item 5
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
See Item 5 (not to be construed as an admission of beneficial ownership)
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES |_|
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
See Item 5
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
HC, CO
- --------------------------------------------------------------------------------
(Page 10 of 133 Pages)
<PAGE>
CUSIP No. 037023108 13D Page 10 of 17 Pages
- --------------------------------------------------------------------------------
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
Finaxa
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) |_|
(b) |_|
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS
Not applicable
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEM 2(d) or 2(e) |_|
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
France
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
See Item 5
--------------------------------------------------------
NUMBER OF 8 SHARED VOTING POWER
SHARES
BENEFICIALLY See Item 5
OWNED BY --------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING
PERSON See Item 5
WITH --------------------------------------------------------
10 SHARED DISPOSITIVE POWER
See Item 5
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
See Item 5 (not to be construed as an admission of beneficial ownership)
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES |_|
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
See Item 5
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
HC, CO
- --------------------------------------------------------------------------------
(Page 11 of 133 Pages)
<PAGE>
CUSIP No. 037023108 13D Page 11 of 17 Pages
- --------------------------------------------------------------------------------
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
AXA Assurances I.A.R.D. Mutuelle
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) |_|
(b) |_|
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS
Not applicable
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEM 2(d) or 2(e) |_|
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
France
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
See Item 5
--------------------------------------------------------
NUMBER OF 8 SHARED VOTING POWER
SHARES
BENEFICIALLY See Item 5
OWNED BY --------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING
PERSON See Item 5
WITH --------------------------------------------------------
10 SHARED DISPOSITIVE POWER
See Item 5
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
See Item 5 (not to be construed as an admission of beneficial ownership)
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES |_|
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
See Item 5
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
IC
- --------------------------------------------------------------------------------
(Page 12 of 133 Pages)
<PAGE>
CUSIP No. 037023108 13D Page 12 of 17 Pages
- --------------------------------------------------------------------------------
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
AXA Assurance Vie Mutuelle
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) |_|
(b) |_|
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS
Not applicable
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEM 2(d) or 2(e) |_|
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
France
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
See Item 5
--------------------------------------------------------
NUMBER OF 8 SHARED VOTING POWER
SHARES
BENEFICIALLY See Item 5
OWNED BY --------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING
PERSON See Item 5
WITH --------------------------------------------------------
10 SHARED DISPOSITIVE POWER
See Item 5
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
See Item 5 (not to be construed as an admission of beneficial ownership)
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES |_|
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
See Item 5
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
IC
- --------------------------------------------------------------------------------
(Page 13 of 133 Pages)
<PAGE>
CUSIP No. 037023108 13D Page 13 of 17 Pages
- --------------------------------------------------------------------------------
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
AXA Courtage Assurance Mutuelle
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) |_|
(b) |_|
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS
Not applicable
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEM 2(d) or 2(e) |_|
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
France
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
See Item 5
--------------------------------------------------------
NUMBER OF 8 SHARED VOTING POWER
SHARES
BENEFICIALLY See Item 5
OWNED BY --------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING
PERSON See Item 5
WITH --------------------------------------------------------
10 SHARED DISPOSITIVE POWER
See Item 5
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
See Item 5 (not to be construed as an admission of beneficial ownership)
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES |_|
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
See Item 5
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
IC
- --------------------------------------------------------------------------------
(Page 14 of 133 Pages)
<PAGE>
CUSIP No. 037023108 13D Page 14 of 17 Pages
- --------------------------------------------------------------------------------
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
AXA Conseil Vie Assurance Mutuelle
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) |_|
(b) |_|
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS
Not applicable
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEM 2(d) or 2(e) |_|
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
France
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
See Item 5
--------------------------------------------------------
NUMBER OF 8 SHARED VOTING POWER
SHARES
BENEFICIALLY See Item 5
OWNED BY --------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING
PERSON See Item 5
WITH --------------------------------------------------------
10 SHARED DISPOSITIVE POWER
See Item 5
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
See Item 5 (not to be construed as an admission of beneficial ownership)
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES |_|
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
See Item 5
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
IC
- --------------------------------------------------------------------------------
(Page 15 of 133 Pages)
<PAGE>
CUSIP No. 037023108 13D Page 15 of 17 Pages
- --------------------------------------------------------------------------------
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
Claude Bebear, as AXA Voting Trustee
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) |_|
(b) |_|
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS
Not applicable
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEM 2(d) or 2(e) |_|
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Citizen of France
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
See Item 5
--------------------------------------------------------
NUMBER OF 8 SHARED VOTING POWER
SHARES
BENEFICIALLY See Item 5
OWNED BY --------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING
PERSON See Item 5
WITH --------------------------------------------------------
10 SHARED DISPOSITIVE POWER
See Item 5
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
See Item 5 (not to be construed as an admission of beneficial ownership)
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES |_|
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
See Item 5
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
IN
- --------------------------------------------------------------------------------
(Page 16 of 133 Pages)
<PAGE>
CUSIP No. 037023108 13D Page 16 of 17 Pages
- --------------------------------------------------------------------------------
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Patrice Garnier, as AXA Voting Trustee
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) |_|
(b) |_|
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS
Not applicable
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEM 2(d) or 2(e) |_|
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Citizen of France
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
See Item 5
--------------------------------------------------------
NUMBER OF 8 SHARED VOTING POWER
SHARES
BENEFICIALLY See Item 5
OWNED BY --------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING
PERSON See Item 5
WITH --------------------------------------------------------
10 SHARED DISPOSITIVE POWER
See Item 5
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
See Item 5 (not to be construed as an admission of beneficial ownership)
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES |_|
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
See Item 5
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
IN
- --------------------------------------------------------------------------------
(Page 17 of 133 Pages)
<PAGE>
CUSIP No. 037023108 13D Page 17 of 17 Pages
- --------------------------------------------------------------------------------
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
Henri de Clermont-Tonnerre, as AXA Voting Trustee
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) |_|
(b) |_|
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS
Not applicable
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEM 2(d) or 2(e) |_|
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Citizen of France
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
See Item 5
--------------------------------------------------------
NUMBER OF 8 SHARED VOTING POWER
SHARES
BENEFICIALLY See Item 5
OWNED BY --------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING
PERSON See Item 5
WITH --------------------------------------------------------
10 SHARED DISPOSITIVE POWER
See Item 5
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
See Item 5 (not to be construed as an admission of beneficial ownership)
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES |_|
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
See Item 5
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
IN
- --------------------------------------------------------------------------------
(Page 18 of 133 Pages)
<PAGE>
ITEM 1 SECURITY AND ISSUER
The class of equity securities to which this statement relates is the
common stock, $0.001 par value per share (the "Shares"), of Anthracite Capital,
Inc., a Delaware corporation ("Anthracite" or the "Issuer"). The principal
executive offices of Anthracite are located at 345 Park Avenue, New York, New
York 10154.
ITEM 2 IDENTITY AND BACKGROUND
This Schedule 13D is being filed jointly on behalf of the following
persons (collectively, the "Reporting Persons"): (1) RECP II Anthracite, LLC, a
Delaware limited liability company ("RECP"); (2) DLJ Real Estate Capital
Partners II, L.P., a Delaware limited partnership and sole member of RECP ("RECP
LP"); (3) DLJ Real Estate Capital II, L.P., a Delaware limited partnership ("REC
LP"); (4) DLJ Real Estate Capital II, Inc., a Delaware corporation ("REC INC");
(5) DLJ Real Estate Capital Partners, Inc., a Delaware corporation ("RECP INC");
(6) DLJ Capital Investors, Inc., a Delaware corporation ("DLJCI"); (7)
Donaldson, Lufkin & Jenrette, Inc., a Delaware corporation ("DLJ" and together
with the previously listed entities, the "DLJ Entities"); (8) AXA Financial,
Inc., a Delaware corporation ("AXA Financial"); (9) AXA, a societe anonyme
organized under the laws of France ("AXA"); (10) Finaxa, a societe anonyme
organized under the laws of France; (11) AXA Assurances I.A.R.D. Mutuelle, a
mutual insurance company organized under the laws of France; (12) AXA Assurances
Vie Mutuelle, a mutual insurance company organized under the laws of France;
(13) AXA Courtage Assurance Mutuelle, a mutual insurance company organized under
the laws of France; (14) AXA Conseil Vie Assurance Mutuelle, a mutual insurance
company organized under the laws of France; and (15) Claude Bebear, Patrice
Garnier and Henri de Clermont-Tonnerre, trustees (the "AXA Voting Trustees") of
a voting trust (the "AXA Voting Trust") established pursuant to a Voting Trust
Agreement by and among AXA and the AXA Voting Trustees dated as of May 12, 1992,
as amended on January 22, 1997.
RECP is a special purpose Delaware limited liability company which made an
investment in the Preferred Stock (as defined below). RECP's sole member is RECP
LP which makes all investment decisions on behalf of RECP.
RECP LP is a Delaware limited partnership which makes investments for long
term appreciation. REC LP, a Delaware limited partnership, is the general
partner of RECP LP. REC LP's managing general partner is REC INC.
REC INC is a Delaware corporation and is a holding company. REC INC is a
wholly owned subsidiary of DLJCI. REC INC may delegate its management
responsibilities with respect to REC LP to RECP INC.
RECP INC is a Delaware corporation that manages the day to day operations
of REC LP.
DLJCI is a Delaware corporation and is a holding company. DLJCI is a
wholly owned subsidiary of DLJ.
DLJ is a publicly held Delaware corporation. DLJ directly owns all of the
capital stock of DLJCI. DLJ, acting on its own behalf or through its
subsidiaries, is a registered broker/dealer and registered investment advisor
engaged in investment banking, institutional trading and research, investment
management and financial and correspondent brokerage services.
AXA Financial is a Delaware corporation and is a holding company. As of
June 30, 1999, AXA Financial owns, directly or indirectly, 70.5% of DLJ.
AXA is a societe anonyme organized under the laws of France and a holding
company for an international group of insurance and related financial services
companies. As of October 1, 1999,
(Page 19 of 133 Pages)
<PAGE>
approximately 58% of the outstanding common stock of AXA Financial was
beneficially owned by AXA. For insurance regulatory purposes, to ensure that
certain indirect minority shareholders of AXA will not be able to exercise
control over AXA Financial and certain of its insurance subsidiaries, the voting
shares of AXA Financial capital stock beneficially owned by AXA and its
subsidiaries have been deposited into the AXA Voting Trust. For additional
information regarding the AXA Voting Trust, reference is made to the Schedule
13D filed by AXA with respect to AXA Financial. As of June 30, 1999, AXA
directly owned approximately 1.5% of DLJ.
Finaxa is a societe anonyme organized under the laws of France and is a
holding company. As of October 1, 1999, Finaxa controlled directly and
indirectly approximately 20.3% of the issued ordinary shares (representing
approximately 32.1% of the voting power) of AXA.
Each of AXA Assurances I.A.R.D. Mutuelle, AXA Assurances Vie Mutuelle, AXA
Courtage Assurance Mutuelle, and AXA Conseil Vie Assurance Mutuelle
(collectively, the "Mutuelles AXA") is a mutual insurance company organized
under the laws of France. Each of the Mutuelles AXA is owned by its policy
holders. As of October 1, 1999, the Mutuelles AXA, as a group, control
approximately 61.7% of the issued shares (representing approximately 72.3% of
the voting power) of Finaxa and 22.7% of the shares of Finaxa (representing
13.7% of the voting power) were owned by Paribas, a French bank. As of October
1, 1999, the Mutuelles AXA, in addition to their indirect beneficial ownership
of AXA's ordinary shares through Finaxa, directly beneficially owned
approximately 3.1% of the ordinary shares (representing approximately 4.9% of
the voting power) of AXA. Acting as a group, the Mutuelles AXA control AXA and
Finaxa.
Claude Bebear, Patrice Garnier and Henri de Clermont-Tonnerre, the AXA
Voting Trustees, exercise all voting rights with respect to the shares of AXA
Financial capital stock beneficially owned by AXA and its subsidiaries that have
been deposited in the AXA Voting Trust. The business address, citizenship and
present principal occupation of Claude Bebear and Henri de Clermont-Tonnerre are
set forth on Schedule J attached hereto and of Patrice Garnier are set forth on
Schedule I hereto.
The address of the principal business and office of each of the DLJ
Entities and DLJ is 277 Park Avenue, New York, New York 10172. The address of
the principal business and principal office of AXA Financial is 1290 Avenue of
the Americas, New York, New York 10104.
The address of the principal business and principal office of AXA and the
AXA Voting Trustees is 9 place Vendome, 75001 Paris, France. The address of
Finaxa is 23, avenue Matignon, 75008 Paris, France; of each of AXA Assurances
I.A.R.D. Mutuelle and AXA Assurances Vie Mutuelle is 21, rue de Chateaudun,
75009 Paris, France; of AXA Courtage Assurance Mutuelle is 26, rue Louis le
Grand, 75002 Paris, France; and of AXA Conseil Vie Assurance Mutuelle is Tour
Franklin, 100/101 Terrasse Boieldieu, Cedex 11, 92042 Paris La Defense, France.
The name, business address, citizenship, present principal occupation or
employment and the name and business address of any corporation or organization
in which each such employment is conducted, of each executive officer or member,
as applicable, of the Board of Directors, Supervisory Board, or the Conseil
d'Administration (French analogue of a Board of Directors) of DLJ, those DLJ
Entities that are corporations, AXA Financial, AXA, Finaxa and the Mutuelles AXA
are set forth on Schedules A through L, respectively, attached hereto.
HSW GP II, Inc. ("HSW") is the non-managing general partner of REC L.P.
HSW is a Delaware corporation. The address of the principal business and
principal office of HSW is 277 Park Avenue, New York, New York 10172.
During the past five (5) years, none of the Reporting Persons, HSW or, to
the best knowledge of any of the Reporting Persons, any of the other persons
listed on Schedules A through L attached hereto, has been (i) convicted in a
criminal proceeding (excluding traffic violations or similar misdemeanors) or
(Page 20 of 133 Pages)
<PAGE>
(ii) a party to a civil proceeding of a judicial or administrative body of
competent jurisdiction and as a result of such proceeding was or is subject to a
judgment, decree or final order enjoining future violations of, or prohibiting
or mandating activities subject to United States federal or state securities
laws or finding any violation with respect to such laws.
ITEM 3 SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
The sole member of RECP contributed $30,112,259 to fund the purchase of
the Preferred Stock (as defined below). Such contribution was funded initially
through a loan to RECP LP in the amount of $30,112,259 pursuant to that certain
Loan Agreement, dated as of November 4, 1999, by and among RECP LP, The Chase
Manhattan Bank, Chase Securities Inc., Bank of America Securities LLC, Bank of
America, N.A. and the other Banks listed therein. RECP LP expects to make a call
for capital contributions from its partners and use such contributions to repay
the loan. RECP LP expects to receive such contributions from its partners and
repay the loan by January 15, 2000.
ITEM 4 PURPOSE OF THE TRANSACTION
RECP has acquired the Shares for general investment purposes. RECP
reserves the right to change its business intent. Subject to the agreements
discussed herein or attached hereto, and to market conditions and other factors,
RECP or other affiliates of DLJ may acquire or dispose of Shares from time to
time in the future. RECP may enter into agreements with third parties relating
to acquisitions of Shares, or conduct open market, privately negotiated or other
transactions. RECP may enter into agreements with management of the Company
relating to acquisitions of Shares by members of management, issuances of
options to management or may affect other similar agreements or transactions.
Except as set forth herein, RECP has no plan or proposals which relate to or
would result in any of the transactions described in subparagraphs (a) through
(j) of Item 4 of Schedule 13D.
Pursuant to the Securities Purchase Agreement (the "Purchase Agreement")
dated December 2, 1999 attached hereto as Exhibit 3 and incorporated by
reference herein, RECP II Anthracite, LLC (the "Investor"), acquired from the
Company 1,200,000 shares of 10.5% Series A Senior Cumulative Convertible
Redeemable Preferred Stock, par value $0.001 per share (the "Preferred Stock")
of the Company.
In order to issue the Preferred Stock, the Company filed Articles
Supplementary (the "Articles Supplementary") with the State of Delaware on
December 2, 1999, incorporated by reference herein and attached hereto as
Exhibit 5.
Pursuant to the Articles Supplementary, each share of Preferred Stock is
convertible, at the option of the holder at any time after the issuance of such
share, into such number of shares of common stock as is determined by dividing
$25.00 by the Conversion Price (as defined in the Articles Supplementary) in
effect on the date such share certificate is surrendered for conversion. The
initial Conversion Price is $7.35, subject to standard anti-dilution provisions.
Each share of Preferred Stock shall be converted into shares of common
stock at the Conversion Price in effect at the time, upon the occurrence, at any
time on or after December 2, 2002, of the closing of a public offering of Shares
pursuant to a registration statement filed by the Company with the Securities
and Exchange Commission pursuant to which (i) the aggregate offering price is
not less than $10 million and (ii) the offering price per share is at least 150%
of the then applicable Conversion Price. Pursuant to the Purchase Agreement, the
Company has reserved 4,081,633 shares of common stock for issuance upon
conversion of the Preferred Stock.
Pursuant to the Articles Supplementary, the Preferred Stock is redeemable
at the option of the holders at any time on or after December 2, 2006. Within
five months after receipt by the Company of a
(Page 21 of 133 Pages)
<PAGE>
written request (a "Redemption Election") from a holder of the then outstanding
Preferred Stock that all of its shares of Preferred Stock be redeemed, the
Company shall, to the extent it may lawfully do so, redeem the number of shares
specified in the Redemption Election by paying in cash therefor a sum per share
equal to $27.75 per share of Preferred Stock plus all accrued but unpaid
dividends on such shares.
Pursuant to the Articles Supplementary, upon the occurrence of a Change of
Control (as defined in the Articles Supplementary) of the Company, each holder
has the right to require that the Company, to the extent it may lawfully do so,
purchase for cash all of that holder's shares of Preferred Stock at a purchase
price equal to $27.75 per share of Preferred Stock, plus all accrued but unpaid
dividends on such shares.
In the event that the Company fails to comply with any of the covenants
made by it in the Articles Supplementary for a period of 150 days following a
notice of breach, each holder of shares of Preferred Stock has the right to
cause the Company, to redeem all of that holder's shares of Preferred Stock at a
redemption price equal to $30.525 per share of Preferred Stock, plus all accrued
but unpaid dividends on such shares.
Pursuant to the Articles Supplementary, at any time after December 2,
2002, the Company has the right to redeem all but not less than all outstanding
shares of Preferred Stock held by each holder thereof at a redemption price
equal to $27.75 per share of Preferred Stock, plus all accrued but unpaid
dividends on such shares, provided that the average closing price per share of
the common stock of the Company on the New York Stock Exchange for the ninety
days immediately prior to the date of the notice of redemption is at least 150%
of the applicable conversion price on the date of such notice.
Pursuant to the Articles Supplementary, the holders of shares of Preferred
Stock have the option to purchase a portion of any new equity securities offered
by the Company other than in a public offering or securities issued to employees
of the manager of the Company pursuant to the Company's compensatory stock
option plans at the same price per share and upon the same terms as specified in
the notice. Each holder of shares of Preferred Stock shall have the right to
purchase that number of the offered new securities as shall be equal to the
number of offered new securities multiplied by a fraction, the numerator of
which shall be the number of shares of common stock of the Company then held by
the holder plus all shares of common stock issuable upon conversion of the
convertible securities of the Company (including the Preferred Stock) and the
denominator of which shall be the aggregate number of shares of common stock
plus all shares of common stock issuable upon conversion of the convertible
securities of the Company.
Pursuant to the Articles Supplementary, the Company has a right of first
offer with respect to any sale of Preferred Stock.
Pursuant to the Articles Supplementary, the holders of shares of Preferred
Stock shall have the right to vote as a single class with the holders of common
stock, and the holder of each share of Preferred Stock shall be entitled to one
vote for each share of common stock into which such Preferred Stock could then
be converted. The holders of the Preferred Stock are entitled to elect one
member of the Board of Directors of the Company.
ITEM 5 INTEREST IN SECURITIES OF THE ISSUER
(a) and (b) RECP, through its ownership of 1,200,000 shares of Preferred
Stock, has acquired and, for the purpose of Rule 13d-3 promulgated under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), beneficially
owns 4,081,680 Shares, representing approximately 16.3% of the outstanding
Shares of the Issuer.
Except as set forth in this Item 5(a), neither RECP, nor any other person
controlling RECP, nor, to the best of its knowledge, any persons named in
Schedule A hereto owns beneficially any Shares.
(Page 22 of 133 Pages)
<PAGE>
Except as set forth in this Item 5(a), no person other than RECP has the
right to receive or the power to direct the receipt of dividends from or the
proceeds from the sale of the Preferred Stock.
RECP LP, as the sole member of RECP, may be deemed for the purposes of
Rule 13d-3 under the Exchange Act, to beneficially own directly or indirectly
the Shares owned by RECP. In addition, REC LP, as the managing general partner
of RECP LP, may be deemed for the purposes of Rule 13d-3 under the Exchange Act,
to beneficially own directly or indirectly the Shares owned by RECP. Further,
REC INC, as the managing general partner of REC LP, may be deemed for the
purposes of Rule 13d-3 under the Exchange Act, to beneficially own directly or
indirectly the Shares owned by RECP. Also, DLJCI, as the sole stockholder of REC
INC, may be deemed for the purposes of Rule 13d-3 under the Exchange Act, to
beneficially own directly or indirectly the Shares owned by RECP. Each of RECP
LP, REC LP, REC INC, and DLJCI disclaims beneficial ownership of such Shares.
In addition, as the sole stockholder of DLJCI, DLJ may be deemed, for
purposes of Rule 13d-3 under the Exchange Act, to beneficially own indirectly
the Shares that may be deemed to be owned beneficially by DLJCI. Because of AXA
Financial's ownership interest in DLJ, AXA Financial may be deemed, for purposes
of Rule 13d-3 under the Exchange Act, to beneficially own indirectly the Shares
that may be deemed to be beneficially owned indirectly by DLJ. Each of DLJ and
AXA Financial disclaims beneficial ownership of the Shares.
Because of AXA's ownership interests in AXA Financial, and the AXA Voting
Trustees' power to vote the AXA Financial shares placed in the AXA Voting Trust,
each of AXA and the AXA Voting Trustees may be deemed, for purposes of Rule
13d-3 under the Exchange Act, to beneficially own indirectly the Shares that AXA
Financial may be deemed to beneficially own indirectly. Because of the direct
and indirect ownership interest in AXA of Finaxa and the Mutuelles AXA, each of
Finaxa and the Mutuelles AXA may be deemed, for purposes of Rule 13d-3 under the
Exchange Act, to beneficially own indirectly the Shares that AXA may be deemed
to beneficially own indirectly. AXA, Finaxa, the Mutuelles AXA, and the AXA
Voting Trustees expressly disclaim beneficial ownership of any of the Shares.
(c) No transactions in the Shares have been effected by RECP, any other
person controlling by RECP, or to the best of its knowledge, any of the persons
named in Schedules A through L since October 2, 1999.
(d) Inapplicable.
(e) Inapplicable.
ITEM 6 CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO
SECURITIES OF THE ISSUER
See responses to Items 4 and 5.
The Company and the Investor have entered into a Registration Rights
Agreement, attached hereto as Exhibit 4 and incorporated by reference, which
grants the Investor certain rights with respect to registration under the
Securities Act of 1933, as amended (the "Act"). Under the terms of the
Registration Rights Agreement, within sixty days of the date of the Registration
Rights Agreement (January 30, 2000), the Company is obligated to file with the
SEC a registration statement on Form S-3 covering the resale of all of the
Registrable Securities. Registrable Securities are defined as (i) the Preferred
Stock and the shares of common stock issued or issuable upon conversion of or
otherwise pursuant to the Preferred Stock, (ii) any securities of the Company
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 by the Company generally for, or in
replacement by the Company generally of, the Preferred
(Page 23 of 133 Pages)
<PAGE>
Stock or the common stock issued upon conversion of the Preferred Stock or (iii)
any securities issued in exchange for Registrable Securities in any merger or
reorganization of the Company.
The Registration Rights Agreement also grants "piggy-back" rights to the
Investor to participate in certain registration statements filed by the Company
in the event that a registration statement on Form S-3 as described in the
preceding paragraph is not effective. All registration rights terminate after
the earlier of (i) the sale of all the Registrable Securities under an effective
Registration Statement or (ii) the date on which all of the Registrable
Securities are eligible for sale pursuant to Rule 144 under the Act and can be
sold in one transaction in accordance with the volume limitations contained in
Rule 144(e)(1)(i) under the Act, if applicable. The Registration Rights
Agreement also contains a "lock-up provision" pursuant to which the Investor may
be restricted from transferring Registrable Securities in public sales pursuant
to a registration statement during an underwritten public offering of common
stock by the Company.
Except for the Agreements described in this Schedule 13D, to the best
knowledge of RECP, there are no contracts, arrangements, understandings or
relationships (legal or otherwise) between the persons enumerated in Item 2, and
any other person, with respect to any securities of the Issuer, including, but
not limited to, transfer or voting of any of the securities, finder's fees,
joint ventures, loan or option arrangements, puts or calls, guarantees or
profits, division of profits or loss, or the giving or withholding of proxies.
A copy of each of the Securities Purchase Agreement dated as of December
2, 1999 and the Registration Rights Agreement dated as of December 2, 1999 are
attached hereto as Exhibits 3 and 4, respectively, and are incorporated herein
by reference. The summaries of the terms of the Securities Purchase Agreement
dated as of December 2, 1999 and the Registration Rights Agreement dated as of
December 2, 1999 set forth herein are qualified in their entirety by reference
to Exhibits 3 and 4, respectively.
ITEM 7 MATERIAL TO BE FILED AS EXHIBITS
Exhibit 1: Joint Filing Agreement among the Reporting Persons
Exhibit 2: Powers of Attorney
Exhibit 3: Securities Purchase Agreement, dated as of December 2, 1999, by
and between Anthracite Capital, Inc. and RECP II Anthracite,
LLC.
Exhibit 4: Registration Rights Agreement, dated as of December 2, 1999, by
and among Anthracite Capital, Inc. and RECP II Anthracite, LLC.
Exhibit 5: Articles Supplementary of Anthracite Capital, Inc., as filed
with the Secretary of State of the State of Delaware on
December 2, 1999.
(Page 24 of 133 Pages)
<PAGE>
SIGNATURES
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: December 9, 1999
RECP II Anthracite, LLC
By DLJ Real Estate Capital Partners II, L.P.
as sole member
By DLJ Real Estate Capital II, L.P.
as General Partner
By DLJ Real Estate Capital II, Inc.
as General Partner
By:/s/ Ivy Dodes
-----------------------------------------
Name: Ivy Dodes
Title: Vice President
(Page 25 of 133 Pages)
<PAGE>
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: December 9, 1999
DLJ Real Estate Capital Partners II, L.P.
By DLJ Real Estate Capital II, L.P.
as General Partner
By DLJ Real Estate Capital II, Inc.
as General Partner
By:/s/ Ivy Dodes
-----------------------------------------
Name: Ivy Dodes
Title: Vice President
(Page 26 of 133 Pages)
<PAGE>
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: December 9, 1999
DLJ Real Estate Capital II, L.P.
By DLJ Real Estate Capital II, Inc.
as General Partner
By:/s/ Ivy Dodes
-----------------------------------------
Name: Ivy Dodes
Title: Vice President
(Page 27 of 133 Pages)
<PAGE>
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: December 9, 1999
DLJ Real Estate Capital II, Inc.
By:/s/ Ivy Dodes
-----------------------------------------
Name: Ivy Dodes
Title: Vice President
(Page 28 of 133 Pages)
<PAGE>
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: December 9, 1999
DLJ Real Estate Capital Partners, Inc.
By:/s/ Ivy Dodes
-----------------------------------------
Name: Ivy Dodes
Title: Vice President
(Page 29 of 133 Pages)
<PAGE>
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: December 9, 1999
DLJ Capital Investors, Inc.
By:/s/ Ivy Dodes
-----------------------------------------
Name: Ivy Dodes
Title: Vice President
(Page 30 of 133 Pages)
<PAGE>
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: December 9, 1999
Donaldson, Lufkin & Jenrette, Inc.
By:/s/ Marjorie S. White
-----------------------------------------
Name: Marjorie S. White
Title: Secretary
(Page 31 of 133 Pages)
<PAGE>
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: December 9, 1999
AXA Financial, Inc.
By:/s/ Alvin H. Fenichel
-----------------------------------------
Name: Alvin H. Fenichel
Title: Senior Vice President and
Controller
(Page 32 of 133 Pages)
<PAGE>
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: December 9, 1999
AXA Assurances I.A.R.D. Mutuelle
AXA Assurances Vie Mutuelle
AXA Courtage Assurance Mutuelle
AXA Conseil Vie Assurance Mutuelle
Finaxa
AXA
Claude Bebear, as AXA Voting Trustee
Patrice Garnier, as AXA Voting Trustee
Henri de Clermont-Tonnerre, as AXA
Voting Trustee
Signed on behalf of each of the above
By:/s/ Alvin H. Fenichel
-----------------------------------------
Name: Alvin H. Fenichel
Title: Attorney-in-fact
(Page 33 of 133 Pages)
<PAGE>
Schedule A
Executive Officers and Directors
of
RECP II Anthracite, LLC
The names and titles of the Executive Officers of RECP II Anthracite, LLC
("RECP") and their business addresses and principal occupations are set forth
below. If no address is given, the Director's or Executive Officer's business
address is that of RECP at 277 Park Avenue, New York, New York 10172. Unless
otherwise indicated, each occupation set forth opposite an individual's name
refers to RECP and each individual is a United States citizen.
Name, Business Address Principal Occupation
---------------------- --------------------
David R. Weil Managing Director
Andrew P. Rifkin Managing Director
Philip C. Tager Senior Vice President
(Page 34 of 133 Pages)
<PAGE>
Schedule B
Executive Officers and Directors
of
DLJ Real Estate Capital II, Inc.
The names of the Directors and the names and titles of the Executive
Officers of DLJ Real Estate Capital II, Inc. ("REC INC") and their business
addresses and principal occupations are set forth below. If no address is given,
the Director's or Executive Officer's business address is that of REC INC at 277
Park Avenue, New York, New York 10172. Unless otherwise indicated, each
occupation set forth opposite an individual's name refers to REC INC and each
individual is a United States citizen.
Name, Business Address Principal Occupation
---------------------- --------------------
* Hamilton E. James Chairman
* Lawrence M.v.D. Schloss Vice Chairman
Anthony F. Daddino Managing Director
* Barry A. Sholem Managing Director
* Neil N. Hasson Managing Director and Chief
Financial Officer
* David R. Weil Managing Director
Nicole S. Amaboldi Managing Director
Dang T. Phan Managing Director
Andrew R. Kassoy Senior Vice President
Ivy B. Dodes Vice President
John S. Ficarra Vice President
Edward A. Poletti Vice President and Controller
Charles J. Hendrickson Treasurer
Marjorie S. White Secretary
Stuart S. Flamberg Director of Taxes
Mark A. Competiello Vice President and Tax Manager
- ----------
* Director
(Page 35 of 133 Pages)
<PAGE>
Schedule C
Executive Officers and Directors
of
DLJ Real Estate Capital Partners, Inc.
The names of the Directors and the names and titles of the Executive
Officers of DLJ Real Estate Capital Partners, Inc. ("RECP INC") and their
business addresses and principal occupations are set forth below. If no address
is given, the Director's or Executive Officer's business address is that of RECP
INC at 277 Park Avenue, New York, New York 10172. Unless otherwise indicated,
each occupation set forth opposite an individual's name refers to RECP INC and
each individual is a United States citizen.
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
* Hamilton E. James Chairman
* Lawrence M.v.D. Schloss Vice Chairman
* Barry A. Sholem Managing Director
* Neil N. Hasson Managing Director and Chief
Financial Officer
* David R. Weil Managing Director
Nicole S. Amaboldi Managing Director
Dang T. Phan Senior Vice President
Andrew P. Rifkin Senior Vice President
Ivy B. Dodes Vice President
Andrew R. Kassoy Vice President
Murray McQueen Vice President
Edward A. Poletti Vice President and Controller
Marjorie S. White Secretary
Charles J. Hendrickson Treasurer
Stuart S. Flamberg Vice President and Director of
Taxes
Mark A. Competiello Vice President and Tax Manager
- ----------
* Director
(Page 36 of 133 Pages)
<PAGE>
Schedule D
Executive Officers and Directors
of
DLJ Capital Investors, Inc.
The names of the Directors and the names and titles of the Executive
Officers of DLJ Capital Investors, Inc. ("DLJCI") and their business addresses
and principal occupations are set forth below. If no address is given, the
Director's or Executive Officer's business address is that of DLJCI at 277 Park
Avenue, New York, New York 10172. Unless otherwise indicated, each occupation
set forth opposite an individual's name refers to DLJCI and each individual is a
United States citizen.
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
* John S. Chalsty Chairman; Chairman, Donaldson,
Lufkin & Jenrette, Inc.
* Hamilton E. James Chief Executive Officer;
Chairman, Banking Group,
Managing Director, Donaldson,
Lufkin & Jenrette, Inc.
* Joe L. Roby Chief Operating Officer;
President and Chief Executive
Officer, Donaldson, Lufkin &
Jenrette, Inc.
* Anthony F. Daddino Executive Vice President;
Executive Vice President and
Chief Financial Officer,
Donaldson, Lufkin & Jenrette, Inc.
Marjorie S. White Secretary
Charles J. Hendrickson Treasurer
Stuart S. Flamberg Director of Taxes
Mark A. Competiello Vice President and Tax Manager
- ----------
* Director
(Page 37 of 133 Pages)
<PAGE>
Schedule E
Executive Officers and Directors
of
Donaldson, Lufkin & Jenrette, Inc.
The names of the Directors and the names and titles of the Executive
Officers of Donaldson, Lufkin & Jenrette, Inc. ("DLJ") and their business
addresses and principal occupations are set forth below. If no address is given,
the Director's or Executive Officer's business address is that of DLJ at 277
Park Avenue, New York, New York 10172. Unless otherwise indicated, each
occupation set forth opposite an individual's name refers to DLJ and each
individual is a United States citizen.
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
* John S. Chalsty Chairman
* Joe L. Roby President and Chief Executive
Officer
* Henri de Castries (1) Senior Executive Vice President,
AXA Financial Services and Insurance
23, avenue Matignon Activities in the United States,
75008 Paris, France United Kingdom, Benelux, Northern
and Eastern Europe
* Denis Duverne (1) Senior Vice President -
AXA International Life, AXA
23, avenue Matignon
75008 Paris, France
* Louis Harris Chairman and Chief Executive
LH Research Officer, LH Research (research)
152 East 38th Street
New York, NY 10016-2605
* Henri Hottinguer (3) Vice Chairman of Financier
Financiere Hottinguer Hottinguer (banking)
43, rue Taitbout
75009 Paris, France
* W. Edwin Jarmain (2) President, Jarmain Group Inc.
Jarmain Group Inc. (private investment holding company)
Suite 2525, Box 36
121 King Street, West
Toronto, Ontario
M5H 3T9 Canada
* Francis Jungers Retired
19880 NW Nestucca Drive
Portland, Oregon 97229
(Page 38 of 133 Pages)
<PAGE>
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
* Edward D. Miller President and Chief Executive
1290 Avenue of the Americas Officer, AXA Financial, Inc.
New York, NY 10104
* W. J. Sanders III Chairman and Chief Executive
Advanced Micro Devices, Inc. Officer, Advanced Micro Devices
901 Thompson Place
Sunnyvale, CA 94086
* Stanley B. Tulin Executive Vice President and Chief
Financial Officer, AXA Financial, Inc.
* John C. West Chairman, Siebels Bruce Group, Inc.
Bothea, Jordan & Griffin
23B Shelter Cove
Hilton Head Island, SC 29928
* Hamilton E. James Chairman, Banking Group
* Richard S. Pechter Chairman, Financial Services Group
* Anthony F. Daddino Executive Vice President and Chief
Financial Officer
* David DeLucia Head, Fixed Income Division
* Stuart M. Robbins Managing Director, Global
Institutional Equities Group
* Jane Mack Gould Senior Vice President and Portfolio
Manager, Alliance
* Michael Hegarty Vice Chairman and Chief Operating
Officer, AXA Financial, Inc.
- ---------------
* Director
(1) Citizen of the Republic of France
(2) Citizen of Canada
(3) Citizen of Switzerland
(Page 39 of 133 Pages)
<PAGE>
Schedule F
Executive Officers and Directors
of
AXA Financial, Inc.
The names of the Directors and the names and titles of the Executive
Officers of AXA Financial, Inc. ("AXA Financial") and their business addresses
and principal occupations are set forth below. If no address is given, the
Director's or Executive Officer's business address is that of AXA Financial at
1290 Avenue of the Americas, New York, New York 10104. Unless otherwise
indicated, each occupation set forth opposite an individual's name refers to AXA
Financial and each individual is a United States citizen.
Names, Business Address Present Principal Occupation
----------------------- ----------------------------
* Claude Bebear (1) Chairman of the Executive Board, AXA
AXA
23, avenue Matignon
75008 Paris, France
* John S. Chalsty Chairman of the Board, Donaldson,
Donaldson, Lufkin & Jenrette, Lufkin & Jenrette, Inc.
Inc.
277 Park Avenue
New York, NY 10172
* Francoise Colloc'h (1) Senior Executive Vice President,
AXA Human Resources and Communications,
23, avenue Matignon AXA
75008 Paris, France
* Henri de Castries (1) Chairman of the Board; Senior
AXA Executive Vice President, Financial
23, avenue Matignon Services and Insurance Activities
75008 Paris, France in the United States, United
Kingdom, Benelux, Northern and
Eastern Europe
* Joseph L. Dionne Chairman of the Board, The
The McGraw-Hill Companies McGraw-Hill Companies (publishing)
1221 Avenue of the Americas
New York, NY 10020
* Jean-Rene Fourtou (1) Chairman and Chief Executive
Rhone-Poulenc S.A. Officer, Rhone-Poulenc S.A.
25 Quai Paul Doumer (manufacturer of chemicals and
92408 Courbevoie Cedex agricultural products)
France
* Jacques Friedmann (1) Chairman of the Supervisory Board,
AXA AXA
9, place Vendome
75001 Paris, France
(Page 40 of 133 Pages)
<PAGE>
Robert E. Garber Executive Vice President and
General Counsel; Executive Vice
President and Chief Legal Officer of
The Equitable Life Assurance
Society of the United States
* Donald J. Greene, Esq. Counselor-at-Law; Partner, LeBoeuf,
LeBoeuf, Lamb, Greene & Lamb, Greene & MacRae (law firm)
MacRae
125 West 55th Street
New York, NY 10019
* Anthony J. Hamilton (2) Group Chairman and Chief Executive
Fox-Pitt, Kelton Group Limited Officer of Fox-Pitt, Kelton Group
35 Wilson Street Limited (investment banking firm)
London, England EC2M 2SJ
* John T. Hartley Director and retired Chairman and
Harris Corporation Chief Executive Officer of Harris
1025 NASA Boulevard Corporation (manufacturer of
Melbourne, FL 32919 electronic, telephone and copying
systems)
* John H. F. Haskell, Jr. Director and Managing Director of
Warburg Dillon Read LLC Warburg Dillon Read LLC (investment
299 Park Avenue banking firm)
New York, NY 10171
* Michael Hegarty Senior Vice Chairman and Chief
Operating Officer; President and
Chief Operating Officer of The
Equitable Life Assurance Society of
the United States
* Nina Henderson President of Bestfoods Grocery
Bestfoods Grocery (food manufacturer)
700 Sylvan Avenue
Englewood, NJ 07632
* W. Edwin Jarmain (3) President of Jarmain Group Inc.
Jarmain Group Inc. (private investment holding company)
121 King Street West
Suite 2525, Box 36
Toronto, Ontario M5H 3T9
Canada
* Edward D. Miller President and Chief Executive
Officer; Chairman and Chief
Executive Officer of The Equitable
Life Assurance Society of the
United States
(Page 41 of 133 Pages)
<PAGE>
Peter D. Noris Executive Vice President and Chief
Investment Officer; Executive Vice
President and Chief Investment
Officer of The Equitable Life
Assurance Society of the United
States
* Didier Pineau-Valencienne(1) Vice Chairman of Credit Suisse
64, rue de Miromesnil First Boston (investment banking)
75008 Paris, France
* George J. Sella, Jr. Retired Chairman and Chief
American Cyanamid Company Executive Officer, American
P.O. Box 397 Cyanamid Company (manufacturer of
Newton, NJ 07860 pharmaceutical products and
agricultural herbicides and
pesticides)
Jose Suquet Executive Vice President; Senior
Executive Senior Vice President and
Chief Distribution Officer of The
Equitable Life Assurance Society of
the United States
* Peter J. Tobin Dean of the College of Business
8000 Utopia Parkway Administration, St. John's University
College of Business
Administration
Bent Hall
Jamaica, NY 11439
Stanley B. Tulin Vice Chairman and Chief
Financial Officer; Vice Chairman
and Chief Financial Officer of The
Equitable Life Assurance Society of
the United States
* Dave H. Williams Chairman of Alliance Capital
Alliance Capital Management Corporation
Management Corporation
1345 Avenue of the Americas
New York, NY 10105
- -------------
* Director
(1) Citizen of the Republic of France
(2) Citizen of United Kingdom
(3) Citizen of Canada
(Page 42 of 133 Pages)
<PAGE>
Schedule G
Members of Executive Committee and Supervisory Board
of
AXA
The names and titles (for the Executive Committee members) of the Members
of the Executive Committee and Supervisory Board of AXA and their business
addresses and principal occupations are set forth below. If no address is given,
the Member's business is that of AXA at 9, place Vendome, 75001 Paris, France.
Unless otherwise indicated, each occupation set forth opposite an individual's
name refers to AXA and each individual is a citizen of the Republic of France.
Members of the Executive Board
Name, Business Address Present Principal Occupation
- ---------------------- ----------------------------
Claude Bebear Chairman of the Executive Board
AXA
23, avenue Matignon
75008 Paris, France
Gerard de La Martiniere Senior Executive Vice President
AXA and Chief Financial Officer
23, avenue Matignon
75008 Paris, France
Michel Pinault Senior Executive Vice President
AXA and Executive Board Secretary
23, avenue Matignon
75008 Paris, France
(Page 43 of 133 Pages)
<PAGE>
Members of the Supervisory Board
Name, Business Address Present Principal Occupation
- ---------------------- ----------------------------
Jacques Friedmann Chairman of the Supervisory Board
Antoine Bernheim Chairman of Assicurazioni Generali
Lazard Freres et Cie SpA (insurance)
121, boulevard Haussman
75008 Paris, France
Jacques Calvet Former Chairman of the Executive
7, rue de Tilsitt Board of Peugeot SA (auto
75017 Paris, France manufacturer)
Henri de Clermont-Tonnerre Chairman of the Supervisory Board
ERSA of Qualis SCA (transportation)
90, rue de Miromesnil
75008 Paris, France
David Dautresme General Partner of Lazard Freres
Lazard Freres et Cie et Cie (investment banking)
121, boulevard Haussman
75008 Paris, France
Guy Dejouany Honorary Chairman of Vivendi
Vivendi
Generale des Eaux
52, rue d'Anjou
75008 Paris, France
Paul Desmarais (5) Chairman and Chief Executive
Power Corporation of Canada Officer of Power Corporation
751, square Victoria (industry and services)
Montreal (Quebec)
H2Y 2J3 Canada
Jean-Rene Fourtou Chairman and Chief Executive
Rhone-Poulenc S.A. Officer of Rhone-Poulenc S.A.
25, Quai Paul Doumer (manufacturer of chemicals and
92408 Courbevoie, France agricultural products)
Michel Francois-Poncet Chairman of the Supervisory Board
3, rue d'Antin of Paribas (financial services and
75002 Paris, France banking)
Patrice Garnier Retired
(Page 44 of 133 Pages)
<PAGE>
Name, Business Address Present Principal Occupation
- ---------------------- ----------------------------
Anthony J. Hamilton (1) Group Chairman and Chief Executive
Fox-Pitt, Kelton Group Limited of Fox-Pitt, Kelton Group Limited
35 Wilson Street (investment banking firm)
London, England EC2M 2SJ
Henri Hottinguer (4) Vice Chairman of Financier
Financiere Hottinguer Hottinguer (banking)
43, rue Taitbout
75009 Paris, France
Richard H. Jenrette (2) Senior Advisor of Donaldson,
c/o Donaldson,Lufkin & Jenrette, Lukfin & Jenrette, Inc. (banking)
Inc.
277 Park Avenue
New York, NY 10172
Henri Lachmann Vice Chairman and Chief Executive
Schneider S.A. Officer of Schneider S.A.
64-70, Av. Jean-Baptiste Clement (electric equipment)
92646 Boulogne Cedex, France
Gerard Mestrallet Chairman and Chief Executive
Suez-Lyonnaise des Eaux Officer of Suez Lyonnaise des Eaux
1, rue d'Astorg (finance)
75008 Paris, France
Friedel Neuber Chairman of the Executive Board of
Westdeutsche Landesbank Westdeutsche Landesbank (banking)
Girozentrale
Herzogstrasse 15
D-40127 Dusseldorf, Germany
Alfred von Oppenheim Chairman of Bank Oppenheim
Sal Oppenheim Jr. & Cie (banking)
Unter Sachsenhausen 4
50667 Koln, Germany
Michel Pebereau Chairman and Chief Executive
B.N.P. Officer of Banque Nationale de
16, boulevard des Italiens Paris (banking)
75009 Paris, France
Didier Pineau-Valencienne Vice Chairman of Credit Suisse
64, rue de Miromesnil First Boston (investment banking)
75008 Paris, France
Bruno Roger General Partner of Lazard Freres
Lazard Freres et Cie et Cie (investment banking)
121, boulevard Hausman
75008 Paris, France
(Page 45 of 133 Pages)
<PAGE>
Name, Business Address Present Principal Occupation
- ---------------------- ----------------------------
Simone Rozes First Honorary President of Cour
2, rue Villaret de Joyeuse de Cassation (government)
75017 Paris, France
(Page 46 of 133 Pages)
<PAGE>
Executive Officers
Name, Business Address Present Principal Occupation
- ---------------------- ----------------------------
Claude Bebear Chairman of the Executive Board
AXA
23, avenue Matignon
75008 Paris, France
Jean-Luc Bertozzi Executive Officer of AXA
Tour AXA Assurances I.A.R.D. Mutuelle and
1, place des Saisons AXA Assurances Vie Mutuelle
92083 Paris La Defense, France
Donald Brydon (1) Senior Executive Vice President;
AXA Investment Managers Chief Executive, AXA Investment
60 Gracechurch Street Managers Europe
London EC3V 0HR
U.K.
John Chalsty (2) Senior Executive Vice President;
Donaldson, Lufkin & Jenrette, Inc. Chairman of Donaldson, Lufkin &
277 Park Avenue Jenrette, Inc.
New York, NY 10172
Henri de Castries Senior Executive Vice President,
AXA Financial Services and Insurance
23, avenue Matignon Activities in the United States,
75008 Paris, France United Kingdom, Benelux, Northern
and Eastern Europe
Francoise Colloch Senior Executive Vice President,
AXA Group Human Resources and
23, avenue Matignon Communications
75008 Paris, France
Jacques Deparis Executive Officer of AXA Courtage
AXA Courtage and AXA Collectives
26, rue Louis le Grand
75002 Paris, France
Michael Hegarty Vice Chairman and Chief Operating
AXA Financial, Inc. Officer of AXA Financial, Inc. and
1290 Avenue of the Americas President and Chief Operating
New York, NY 10104 Officer of The Equitable Life
Assurance Society of the United States
Tony Killen Senior Executive Vice President;
National Mutual Holdings Managing Director of National
447 Collins Street Mutual Holdings
Melbourne Victoria 3000
Australia
(Page 47 of 133 Pages)
<PAGE>
Name, Business Address Present Principal Occupation
- ---------------------- ----------------------------
Claas Kleyboldt (3) Senior Executive Vice President;
AXA Colonia Konzern Chairman of the Executive Board
Gereondriesch 9-11 AXA Colonia Konzern AG
50670 Koln, Germany
Gerard de La Martiniere Senior Executive Vice President
AXA and Chief Financial Officer
23, avenue Matignon
75008 Paris, France
Edward Miller President and Chief Executive
AXA Financial, Inc. Officer of AXA Financial, Inc.;
1290 Avenue of the Americas Chairman and Chief Executive
New York, NY 10104 Officer of The Equitable Life
Assurance Society of the United
States
Jean-Marie Nessi Chairman and Chief Executive
AXA Reassurance Officer of AXA Reassurance
39, rue de colisee
75008 Paris, France
Francois Pierson Executive Officer of AXA Conseil
AXA Conseil I.A.R.D. and AXA Conseil Vie
21, rue de Chateaudun
75009 Paris, France
Michel Pinault Senior Executive Vice President
AXA and Secretary of the Executive
23, avenue Matignon Board
75008 Paris, France
Claude Tendil Senior Executive Vice President;
AXA Chairman and Chief Executive
23, avenue Matignon Officer - French Insurance
75008 Paris, France activities, international risks,
transborder insurance projects
Dave H. Williams (2) Senior Executive Vice-President;
Alliance Capital Chairman of Alliance Capital
1345 Avenue of the Americas Management Corporation
New York, NY 10105
(Page 48 of 133 Pages)
<PAGE>
Name, Business Address Present Principal Occupation
- ---------------------- ----------------------------
Mark Wood Senior Executive Vice President;
SLPH Managing Director of Sun Life &
107 Cheapside Provincial Holdings (insurance)
London EC2V 6DU
U.K.
- ------------
(1) Citizen of the United Kingdom
(2) Citizen of the United States of America
(3) Citizen of Germany
(4) Citizen of Switzerland
(5) Citizen of Canada
(Page 49 of 133 Pages)
<PAGE>
Schedule H
Executive Officers and
Members of Conseil d'Administration
of
Finaxa
The names of the Members of Conseil d'Administration and the names and
titles of the Executive Officers of Finaxa and their business addresses and
principal occupations are set forth below. If no address is given, the Member's
or Executive Officer's business address is that of Finaxa at 23, avenue
Matignon, 75008 Paris, France. Unless otherwise indicated, each occupation set
forth opposite an individual's name refers to Finaxa and each individual is a
citizen of the Republic of France.
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
* Claude Bebear Chairman and Chief Executive Officer;
AXA Chairman of the Executive Board of AXA
23, avenue Matignon
75008 Paris, France
* Henri de Castries Senior Executive Vice President,
AXA Financial Services and Insurance
23, avenue Matignon Activities in the United States,
75008 Paris, France United Kingdom, Benelux, Northern and
Eastern Europe
* Henri de Clermont-Tonnerre Chairman of the Supervisory Board of
ERSA Qualis SCA (transportation)
90, rue de Miromesnil
75008 Paris, France
* Jean-Rene Fourtou Chairman and Chief Executive Officer,
Permanent representative of Rhone-Poulenc S.A. (manufacturer of
AXA Assurances I.A.R.D. chemicals and agricultural products)
Mutuelle
Rhone Units
25, Quai Paul Doumer
92408 Courbevoie, France
* Patrice Garnier Retired
* Henri Hottinguer (1) Vice Chairman of Financier Hottinguer
Financiere Hottinguer (banking)
43, rue Taitbout
75009 Paris, France
* Paul Hottinguer (1) Chairman of Financiere Hottinguer
Financiere Hottinguer (banking)
43, rue Taitbout
75009 Paris, France
(Page 50 of 133 Pages)
<PAGE>
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
* Henri Lachmann Vice Chairman and Chief Executive
Schneider S.A. Officer of Schneider S.A. (electric
64-70, Av. Jean-Baptiste equipment)
Clement
92646 Boulogne Cedex, France
* Andre Levy-Lang Chairman of the Executive Board of
Paribas Paribas (banking)
3, rue d'Antin
75002 Paris, France
* Christian Manset Member of the Executive Board of
Paribas Paribas (banking)
3, rue d'Antin
75002 Paris, France
* Georges Rousseau Retired
* Emilio de Ybarra y Churruca Chairman and Chief Executive Officer
BBV of Banco Bilbao Vizcaya (banking)
Paseo de la Castellana, 81
28046 Madrid, Spain
* Gerard de La Martiniere Chief Executive Officer; Senior
AXA Executive Vice President and Chief
23, avenue Matignon Financial Officer of AXA
75008 Paris, France
- ----------
* Member, Conseil d'Administration
(1) Citizen of Switzerland
(Page 51 of 133 Pages)
<PAGE>
Schedule I
Executive Officers and
Members of Conseil d'Administration
of
AXA Assurances I.A.R.D. Mutuelle
The names of the Members of Conseil d'Administration and the names and
titles of the Executive Officers of AXA Assurances I.A.R.D. Mutuelle and their
business addresses and principal occupations are set forth below. If no address
is given, the Member's or Executive Officer's business address is that of AXA
Assurances I.A.R.D. Mutuelle at 21, rue de Chateaudun, 75009 Paris, France.
Unless otherwise indicated, each occupation set forth opposite an individual's
name refers to AXA Assurances I.A.R.D. Mutuelle and each individual is a citizen
of the Republic of France.
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
* Claude Bebear Chairman; Chairman of the Executive
AXA Board of AXA
23, avenue Matignon
75008 Paris, France
Jean-Luc Bertozzi Executive Officer of AXA Assurances
Tour AXA I.A.R.D. and AXA Assurances Vie
1, place des Saisons
92083 Paris La Defense, France
* Jean-Pierre Chaffin Chairman
Representing ASSSE Federation
de la Metallurgie CFE-CGC
5, rue La Bruyere
75009 Paris, France
* Gerard Coutelle Retired
* Henri de Castries Senior Executive Vice President,
AXA Financial Services and Insurance
23, avenue Matignon Activities in the United States,
75008 Paris, France United Kingdom, Benelux, Northern
and Eastern Europe
* Jean-Rene Fourtou Chairman and Chief Executive
Rhone-Poulenc Officer of Rhone-Poulenc S.A.
25, Quai Paul Doumer (manufacturer of chemicals and
92408 Courbevoie, France agricultural products)
* Henri Lachmann Vice President; Vice Chairman and
Schneider S.A. Chief Executive Officer of
64-70, Av. Jean-Baptiste Schneider S.A. (electric equipment)
Clement
92646 Boulogne Cedex, France
* Francois Richer Retired
(Page 52 of 133 Pages)
<PAGE>
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
* Georges Rousseau Retired
* Claude Tendil Senior Executive Vice President of
AXA AXA; Chairman and Chief Executive
23, avenue Matignon Officer - French Insurance
75008 Paris, France activities, international risks,
transborder insurance projects
* Henri de Clermont-Tonnerre Chairman of the Supervisory Board
ERSA of Qualis SCA (transportation)
90, rue de Miromesnil
75008 Paris, France
* Jean de Ribes Manager
Fortuny Fortune
Conseil
5 avenue Percier
75008 Paris, France
- ----------
*Member, Conseil d'Administration
(Page 53 of 133 Pages)
<PAGE>
Schedule J
Executive Officers and
Members of Conseil d'Administration
of
AXA Assurances Vie Mutuelle
The names of the Members of Conseil d'Administration and the names and
titles of the Executive Officers of AXA Assurances Vie Mutuelle and their
business addresses and principal occupations are set forth below. If no address
is given, the Member's or Executive Officer's business address is that of AXA
Assurances Vie Mutuelle at 21, rue de Chateaudun, 75009 Paris, France. Unless
otherwise indicated, each occupation set forth opposite an individual's name
refers to AXA Assurances Vie Mutuelle and each individual is a citizen of the
Republic of France.
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
* Claude Bebear Chairman; Chairman of the
AXA Executive Board of AXA
23, avenue Matignon
75008 Paris, France
Jean-Luc Bertozzi Executive Officer of AXA
Tour AXA Assurances I.A.R.D. and AXA
1, place des Saisons Assurances Vie
92083 Paris La Defense
* Henri de Castries Senior Executive Vice President,
AXA Financial Services and Insurance
23, avenue Matignon Activities in the United States,
75008 Paris, France United Kingdom, Benelux, Northern
and Eastern Europe
* Henri de Clermont-Tonnerre Chairman of the Supervisory Board
ERSA of Qualis SCA (transportation)
90, rue de Miromesnil
75008 Paris, France
* Gerard Coutelle Retired
* Jean-Rene Fourtou Chairman and Chief Executive
Rhone-Poulenc S.A. Officer of Rhone-Poulenc S.A.
25, Quai Paul Doumer (manufacturer of chemicals and
92408 Courbevoie, France agricultural products)
* Henri Lachmann Vice President; Vice Chairman and
Schneider S.A. Chief Executive Officer of
64-70, Av. Jean-Baptiste Clement Schneider S.A. (electric
92646 Boulogne Cedex, France equipment)
* Francois Richer Retired
(Page 54 of 133 Pages)
<PAGE>
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
* Georges Rousseau Retired
* Claude Tendil Senior Executive Vice President
AXA of AXA; Chairman and Chief
23, avenue Matignon Executive Officer - French
75008 Paris, France Insurance activities,
international risks, transborder
insurance projects
* Jean-Pierre Chaffin Chairman
Representing ASSSE Federation
de la Metallurgie CFE-CGC
5, rue La Bruyere
75009 Paris, France
* Jean de Ribes Manager
Fortuny Fortune
Conseil
5 avenue Percier
75008 Paris, France
- ----------
* Member, Conseil d'Administration
(Page 55 of 133 Pages)
<PAGE>
Schedule K
Executive Officers and
Members of Conseil d'Administration
of
AXA Courtage Assurance Mutuelle
The names of the Members of Conseil d'Administration and the names and
titles of the Executive Officers of AXA Courtage Assurance Mutuelle and their
business addresses and principal occupations are set forth below. If no address
is given, the Member's or Executive Officer's business address is that of AXA
Courtage Assurance Mutuelle at 26, rue de Louis-le-Grand, 75002 Paris, France.
Unless otherwise indicated, each occupation set forth opposite an individual's
name refers to AXA Courtage Assurance Mutuelle and each individual is a citizen
of the Republic of France.
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
* Claude Bebear Chairman; Chairman of the
AXA Executive Board of AXA
23, avenue Matignon
75008 Paris, France
* Francis Cordier Retired
* Gerard Coutelle Retired
* Henri de Castries Senior Executive Vice
AXA President, Financial Services
23, avenue Matignon and Insurance Activities in the
75008 Paris, France United States, United Kingdom,
Benelux, Northern and Eastern
Europe
* Jean-Rene Fourtou Chairman and Chief Executive
Rhone-Poulenc S.A. Officer of Rhone-Poulenc S.A.
25, Quai Paul Doumer (manufacturer of chemicals and
92408 Courbevoie, France agricultural products)
* Patrice Garnier Retired
* Henri Lachmann Vice President; Vice Chairman
Schneider S.A. and Chief Executive Officer of
64-70, Av. Jean-Baptiste Clement Schneider S.A. (electric
92646 Boulogne Cedex, France equipment)
* Jean de Ribes Manager
Fortuny Fortune
Conseil
5 avenue Percier
75008 Paris, France
(Page 56 of 133 Pages)
<PAGE>
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
* Georges Rousseau Retired
* Claude Tendil Senior Executive Vice
AXA President; Chairman and Chief
23, avenue Matignon Executive Officer - French
75008 Paris, France Insurance activities,
international risks,
transborder insurance projects
Jacques Deparis Executive Officer of AXA
Assurances I.A.R.D. and AXA
Collectives
Jean-Pierre Chaffin Chairman
Representing ASSSE Federation
de la Metallurgie CFE-CGC
5, rue La Bruyere
75009 Paris, France
- ----------
* Member, Conseil d'Administration
(Page 57 of 133 Pages)
<PAGE>
Schedule L
Executive Officers and
Members of Conseil d'Administration
of
AXA Conseil Vie Assurance Mutuelle
The names of the Members of Conseil d'Administration and the names and
titles of the Executive Officers of Alpha Assurances Vie Mutuelle and their
business addresses and principal occupations are set forth below. If no address
is given, the Member's or Executive Officer's business address is that of Alpha
Assurances Vie Mutuelle at Tour Franklin, 100/101 Terrasse Boieldieu, Cedex 11,
92042 Paris La Defense, France. Unless otherwise indicated, each occupation set
forth opposite an individual's name refers to Alpha Assurances Vie Mutuelle and
each individual is a citizen of the Republic of France.
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
* Claude Bebear Chairman; Chairman of the
AXA Executive Board of AXA
23, avenue Matignon
75008 Paris, France
* Bernard Cornille Retired
* Henri de Castries Senior Executive Vice
AXA President, Financial Services
23, avenue Matignon and Insurance Activities in the
75008 Paris, France United States, United Kingdom,
Benelux, Northern and Eastern
Europe
* Henri de Clermont-Tonnerre Chairman of the Supervisory
ERSA Board of Qualis SCA
90 rue de Miromesnil (transportation)
75008 Paris, France
* Jean-Rene Fourtou Chairman and Chief Executive
Rhone-Poulenc S.A. Officer of Rhone-Poulenc S.A.
25, Quai Paul Doumer (manufacturer of chemicals and
92408 Courbevoie, France agricultural products)
* Patrice Garnier Retired
* Henri Lachmann Vice President; Vice Chairman
Schneider S.A. and Chief Executive Officer of
64-70, Av. Jean-Baptiste Clement Schneider S.A. (electric
92646 Boulogne Cedex, France equipment)
(Page 58 of 133 Pages)
<PAGE>
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
* Claude Tendil Senior Executive Vice President
AXA of AXA; Chairman and Chief
23, avenue Matignon Executive Officer - French
75008 Paris, France Insurance activities,
international risks,
transborder insurance projects
* Francis Vaudour Retired
Francois Pierson Executive Officer of AXA
AXA Conseil Conseil Vie and AXA Conseil
21, rue de Chateaudun I.A.R.D.
75009 Paris, France
* Fracis Cordier Retired
* Francois Richer Retired
* Jean de Ribes Manager
Fortuny Fortune
Conseil
5 avenue Percier
75008 Paris, France
- ----------
* Member, Conseil d'Administration
(Page 59 of 133 Pages)
EXHIBIT 1
Joint Filing Agreement
In accordance with Rule 13d-1(k) under the Securities Exchange Act of
1934, as amended, each of the persons named below agrees to the joint filing of
a Statement on Schedule 13D (including amendments thereto) with respect to the
common stock, par value $0.001, of Anthracite Capital, Inc., a Delaware
corporation and further agrees that this Joint Filing Agreement be included as
an exhibit to such filings provided that, as contemplated by Section
13d-1(k)(l)(ii), no person shall be responsible for the completeness or accuracy
of the information concerning the other persons making the filing, unless such
person knows or has reason to believe that such information is inaccurate. This
Joint Filing may be executed in any number of counterparts, all of which
together shall constitute one and the same instrument.
RECP II Anthracite, LLC
By DLJ Real Estate Partners II, L.P.,
as sole member
By DLJ Real Estate Capital II, L.P.,
as General Partner
By DJL Real Estate Capital II, Inc.,
as General Partner
By: /s/ Ivy Dodes
----------------------------------
Name: Ivy Dodes
Title: Vice President
DLJ Real Estate Partners II, L.P.,
By DLJ Real Estate Capital II, L.P.,
as General Partner
By DJL Real Estate Capital II, Inc.,
as General Partner
By: /s/ Ivy Dodes
----------------------------------
Name: Ivy Dodes
Title: Vice President
(Page 60 of 133 Pages)
<PAGE>
DLJ Real Estate Capital II, L.P.
By DLJ Real Estate Capital II, Inc.,
as General Partner
By: /s/ Ivy Dodes
----------------------------------
Name: Ivy Dodes
Title: Vice President
DLJ Real Estate Capital II, Inc.
By: /s/ Ivy Dodes
----------------------------------
Name: Ivy Dodes
Title: Vice President
DLJ Real Estate Capital Partners, Inc.
By: /s/ Ivy Dodes
----------------------------------
Name: Ivy Dodes
Title: Vice President
DLJ Capital Investors, Inc.
By: /s/ Ivy Dodes
----------------------------------
Name: Ivy Dodes
Title: Vice President
Donaldson, Lufkin & Jenrette, Inc.
By: /s/ Marjorie White
----------------------------------
Name: Marjorie White
Title: Secretary
AXA Financial, Inc.
By: /s/ Alvin H. Fenichel
----------------------------------
Name: Alvin H. Fenichel
Title: Senior Vice President and Controller
(Page 61 of 133 Pages)
<PAGE>
AXA Assurances I.A.R.D. Mutuelle
AXA Assurances Vie Mutuelle
AXA Courtage Assurance Mutuelle
AXA Conseil Vie Assurance Mutuelle
Finaxa
AXA
Claude Bebear, as AXA Voting Trustee
Patrice Garnier, as AXA Voting Trustee
Henri de Clermont-Tonnerre, as AXA Voting Trustee
Signed on behalf of each of the above
By: /s/ Alvin H. Fenichel
----------------------------------
Name: Alvin H. Fenichel
Title: Attorney-in-fact
(Page 62 of 133 Pages)
EXHIBIT 2
Power of Attorney
AXA, a societe anonyme organized under the laws of the Republic of France
(the "Corporation"), hereby constitutes and appoints each of Richard V. Silver,
Henry Q. Conley, Alvin H. Fenichel and Allen J. Zabusky, acting singly, as the
true and lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for the Corporation and in the name, place and stead of the
Corporation, in any and all capacities, to execute for and on behalf of the
Corporation, all Schedules 13D and Schedules 13G as required by the Securities
Exchange Act of 1934, as amended, and any and all amendments thereto, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, the issuer and relevant
stock exchanges (individually, each a "Filing"); provided, however, that unless
specifically instructed in writing by the Corporation, this Power of Attorney
does not authorize any of the above-listed attorneys-in-fact and agents of the
Corporation (or any person substituted or resubstituted therefor) to execute or
file for or on behalf of the Corporation any Filing with respect to (i) the
Common Stock, par value $.01 per share, of The Equitable Companies Incorporated,
a Delaware corporation, or (ii) the Units Representing Assignments of Beneficial
Ownership of Limited Partnership Interests in Alliance Capital Management L.P.,
a Delaware limited partnership. The Corporation hereby grants to such
attorneys-in-fact and agents of the Corporation full power and authority to do
and perform each and every act and thing requisite and necessary to be done, as
fully to all intents and purposes as the Corporation might or could, and hereby
ratifies and confirms all that said attorneys-in-fact and agents of the
Corporation or their substitute or substitutes may lawfully do or cause to be
done by virtue hereof.
The undersigned acknowledges that the foregoing attorneys-in-fact and
agents of the Corporation, in serving in such capacity at the request of the
undersigned, are not assuming any of the undersigned's responsibilities to
comply with Section 13(d) of the Securities Exchange Act of 1934.
The powers hereby conferred upon the said attorneys-in-fact and agents
shall continue in force until notice of the revocation of this Power of Attorney
has been received by the said attorneys-in-fact and agents of the Corporation.
IN WITNESS WHEREOF, the undersigned has hereunto subscribed this Power of
Attorney this 24 day of June, 1996.
AXA
By: /s/ Claude Bebear
-------------------------------------------
Name: Claude Bebear
Title: Chairman and Chief Executive Officer
(Page 63 of 133 Pages)
<PAGE>
Power of Attorney
Finaxa, a societe anonyme organized under the laws of the Republic of
France (the "Corporation"), hereby constitutes and appoints each of Richard V.
Silver, Henry Q. Conley, Alvin H. Fenichel and Allen J. Zabusky, acting singly,
as the true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for the Corporation and in the name, place and
stead of the Corporation, in any and all capacities, to execute for and on
behalf of the Corporation, all Schedules 13D and Schedules 13G as required by
the Securities Exchange Act of 1934, as amended, and any and all amendments
thereto, and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, the issuer
and relevant stock exchanges (individually, each a "Filing"); provided, however,
that unless specifically instructed in writing by the Corporation, this Power of
Attorney does not authorize any of the above-listed attorneys-in-fact and agents
of the Corporation (or any person substituted or resubstituted therefor) to
execute or file for or on behalf of the Corporation any Filing with respect to
(i) the Common Stock, par value $.01 per share, of The Equitable Companies
Incorporated, a Delaware corporation, or (ii) the Units Representing Assignments
of Beneficial Ownership of Limited Partnership Interests in Alliance Capital
Management L.P., a Delaware limited partnership. The Corporation hereby grants
to such attorneys-in-fact and agents of the Corporation full power and authority
to do and perform each and every act and thing requisite and necessary to be
done, as fully to all intents and purposes as the Corporation might or could,
and hereby ratifies and confirms all that said attorneys-in-fact and agents of
the Corporation or their substitute or substitutes may lawfully do or cause to
be done by virtue hereof.
The undersigned acknowledges that the foregoing attorneys-in-fact and
agents of the Corporation, in serving in such capacity at the request of the
undersigned, are not assuming any of the undersigned's responsibilities to
comply with Section 13(d) of the Securities Exchange Act of 1934.
The powers hereby conferred upon the said attorneys-in-fact and agents
shall continue in force until notice of the revocation of this Power of Attorney
has been received by the said attorneys-in-fact and agents of the Corporation.
IN WITNESS WHEREOF, the undersigned has hereunto subscribed this Power of
Attorney this 24 day of June, 1996.
FINAXA
By: /s/ Claude Bebear
-------------------------------------------
Name: Claude Bebear
Title: Chairman and Chief Executive Officer
(Page 64 of 133 Pages)
<PAGE>
Power of Attorney
AXA Assurances I.A.R.D. Mutuelle, a mutual insurance company organized
under the laws of the Republic of France (the "Corporation"), hereby constitutes
and appoints each of Richard V. Silver, Henry Q. Conley, Alvin H. Fenichel and
Allen J. Zabusky, acting singly, as the true and lawful attorney-in-fact and
agent, with full power of substitution and resubstitution, for the Corporation
and in the name, place and stead of the Corporation, in any and all capacities,
to execute for and on behalf of the Corporation, all Schedules 13D and Schedules
13G as required by the Securities Exchange Act of 1934, as amended, and any and
all amendments thereto, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, the issuer and relevant stock exchanges (individually, each a
"Filing"); provided, however, that unless specifically instructed in writing by
the Corporation, this Power of Attorney does not authorize any of the
above-listed attorneys-in-fact and agents of the Corporation (or any person
substituted or resubstituted therefor) to execute or file for or on behalf of
the Corporation any Filing with respect to (i) the Common Stock, par value $.01
per share, of the Equitable Companies Incorporated, a Delaware corporation, or
(ii) the Units Representing Assignments of Beneficial Ownership of Limited
Partnership Interests in Alliance Capital Management L.P., a Delaware limited
partnership. The Corporation hereby grants to such attorneys-in-fact and agents
of the Corporation full power and authority to do and perform each and every act
and thing requisite and necessary to be done, as fully to all intents and
purposes as the Corporation might or could, and hereby ratifies and confirms all
that said attorneys-in-fact and agents of the Corporation or their substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
The undersigned acknowledges that the foregoing attorneys-in-fact and
agents of the Corporation, in serving in such capacity at the request of the
undersigned, are not assuming any of the undersigned's responsibilities to
comply with Section 13(d) of the Securities Exchange Act of 1934.
The powers hereby conferred upon the said attorneys-in-fact and agents
shall continue in force until notice of the revocation of this Power of Attorney
has been received by the said attorneys-in-fact and agents of the Corporation.
IN WITNESS WHEREOF, the undersigned has hereunto subscribed this Power of
Attorney this 24 day of June, 1996.
AXA ASSURANCES I.A.R.D. MUTUELLE
By: /s/ Claude Bebear
-------------------------------------------
Name: Claude Bebear
Title: Chairman and Chief Executive Officer
(Page 65 of 133 Pages)
<PAGE>
Power of Attorney
AXA Assurances Vie Mutuelle, a mutual insurance company organized under
the laws of the Republic of France (the "Corporation"), hereby constitutes and
appoints each of Richard V. Silver, Henry Q. Conley, Alvin H. Fenichel and Allen
J. Zabusky, acting singly, as the true and lawful attorney-in-fact and agent,
with full power of substitution and resubstitution, for the Corporation and in
the name, place and stead of the Corporation, in any and all capacities, to
execute for and on behalf of the Corporation, all Schedules 13D and Schedules
13G as required by the Securities Exchange Act of 1934, as amended, and any and
all amendments thereto, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, the issuer and relevant stock exchanges (individually, each a
"Filing"); provided, however, that unless specifically instructed in writing by
the Corporation, this Power of Attorney does not authorize any of the
above-listed attorneys-in-fact and agents of the Corporation (or any person
substituted or resubstituted therefor) to execute or file for or on behalf of
the Corporation any Filing with respect to (i) the Common Stock, par value $.01
per share, of the Equitable Companies Incorporated, a Delaware corporation, or
(ii) the Units Representing Assignments of Beneficial Ownership of Limited
Partnership Interests in Alliance Capital Management L.P., a Delaware limited
partnership. The Corporation hereby grants to such attorneys-in-fact and agents
of the Corporation full power and authority to do and perform each and every act
and thing requisite and necessary to be done, as fully to all intents and
purposes as the Corporation might or could, and hereby ratifies and confirms all
that said attorneys-in-fact and agents of the Corporation or their substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
The undersigned acknowledges that the foregoing attorneys-in-fact and
agents of the Corporation, in serving in such capacity at the request of the
undersigned, are not assuming any of the undersigned's responsibilities to
comply with Section 13(d) of the Securities Exchange Act of 1934.
The powers hereby conferred upon the said attorneys-in-fact and agents
shall continue in force until notice of the revocation of this Power of Attorney
has been received by the said attorneys-in-fact and agents of the Corporation.
IN WITNESS WHEREOF, the undersigned has hereunto subscribed this Power of
Attorney this 24 day of June, 1996.
AXA ASSURANCES VIE MUTUELLE
By: /s/ Claude Tendil
------------------------------------
Name: Claude Tendil
Title: Chief Executive Officer
(Page 66 of 133 Pages)
<PAGE>
Power of Attorney
AXA Courtage Assurance Mutuelle, a mutual insurance company organized
under the laws of the Republic of France (the "Corporation"), hereby constitutes
and appoints each of Richard V. Silver, Henry Q. Conley, Alvin H. Fenichel and
Allen J. Zabusky, acting singly, as the true and lawful attorney-in-fact and
agent, with full power of substitution and resubstitution, for the Corporation
and in the name, place and stead of the Corporation, in any and all capacities,
to execute for and on behalf of the Corporation, all Schedules 13D and Schedules
13G as required by the Securities Exchange Act of 1934, as amended, and any and
all amendments thereto, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, the issuer and relevant stock exchanges (individually, each a
"Filing"); provided, however, that unless specifically instructed in writing by
the Corporation, this Power of Attorney does not authorize any of the
above-listed attorneys-in-fact and agents of the Corporation (or any person
substituted or resubstituted therefor) to execute or file for or on behalf of
the Corporation any Filing with respect to (i) the Common Stock, par value $.01
per share, of the Equitable Companies Incorporated, a Delaware corporation, or
(ii) the Units Representing Assignments of Beneficial Ownership of Limited
Partnership Interests in Alliance Capital Management L.P., a Delaware limited
partnership. The Corporation hereby grants to such attorneys-in-fact and agents
of the Corporation full power and authority to do and perform each and every act
and thing requisite and necessary to be done, as fully to all intents and
purposes as the Corporation might or could, and hereby ratifies and confirms all
that said attorneys-in-fact and agents of the Corporation or their substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
The undersigned acknowledges that the foregoing attorneys-in-fact and
agents of the Corporation, in serving in such capacity at the request of the
undersigned, are not assuming any of the undersigned's responsibilities to
comply with Section 13(d) of the Securities Exchange Act of 1934.
The powers hereby conferred upon the said attorneys-in-fact and agents
shall continue in force until notice of the revocation of this Power of Attorney
has been received by the said attorneys-in-fact and agents of the Corporation.
IN WITNESS WHEREOF, the undersigned has hereunto subscribed this Power of
Attorney this 24 day of June, 1996.
AXA COURTAGE ASSURANCE MUTUELLE
By: /s/ Claude Tendil
------------------------------------
Name: Claude Tendil
Title: Chief Executive Officer
(Page 67 of 133 Pages)
<PAGE>
Power of Attorney
AXA Conseil Vie Assurance Mutuelle, a mutual insurance company organized
under the laws of the Republic of France (the "Corporation"), hereby constitutes
and appoints each of Richard V. Silver, Henry Q. Conley, Alvin H. Fenichel and
Allen J. Zabusky, acting singly, as the true and lawful attorney-in-fact and
agent, with full power of substitution and resubstitution, for the Corporation
and in the name, place and stead of the Corporation, in any and all capacities,
to execute for and on behalf of the Corporation, all Schedules 13D and Schedules
13G as required by the Securities Exchange Act of 1934, as amended, and any and
all amendments thereto, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, the issuer and relevant stock exchanges (individually, each a
"Filing"); provided, however, that unless specifically instructed in writing by
the Corporation, this Power of Attorney does not authorize any of the
above-listed attorneys-in-fact and agents of the Corporation (or any person
substituted or resubstituted therefor) to execute or file for or on behalf of
the Corporation any Filing with respect to (i) the Common Stock, par value $.01
per share, of The Equitable Companies Incorporated, a Delaware corporation, or
(ii) the Units Representing Assignments of Beneficial Ownership of Limited
Partnership Interests in Alliance Capital Management L.P., a Delaware limited
partnership. The Corporation hereby grants to such attorneys-in-fact and agents
of the Corporation full power and authority to do and perform each and every act
and thing requisite and necessary to be done, as fully to all intents and
purposes as the Corporation might or could, and hereby ratifies and confirms all
that said attorneys-in-fact and agents of the Corporation or their substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
The undersigned acknowledges that the foregoing attorneys-in-fact and
agents of the Corporation, in serving in such capacity at the request of the
undersigned, are not assuming any of the undersigned's responsibilities to
comply with Section 13(d) of the Securities Exchange Act of 1934.
The powers hereby conferred upon the said attorneys-in-fact and agents
shall continue in force until notice of the revocation of this Power of Attorney
has been received by the said attorneys-in-fact and agents of the Corporation.
IN WITNESS WHEREOF, the undersigned has hereunto subscribed this Power of
Attorney this 24 day of June, 1996.
AXA CONSEIL VIE ASSURANCE MUTUELLE
By: /s/ Claude Tendil
------------------------------------
Name: Claude Tendil
Title: Chief Executive Officer
(Page 68 of 133 Pages)
<PAGE>
Power of Attorney
Patrice Garnier, as a Voting Trustee (the "Trustee"), pursuant to a Voting
Trust Agreement dated as of May 12, 1992, by and among AXA, a societe anonyme
organized under the laws of Republic of France, and the Voting Trustees
identified therein, hereby constitutes and appoints each of Richard V. Silver,
Henry Q. Conley, Alvin H. Fenichel and Allen J. Zabusky, acting singly, as the
true and lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for the Trustee and in the name, place and stead of the Trustee,
in any and all capacities, to execute for and on behalf of the Trustee, all
Schedules 13D and Schedules 13G as required by the Securities Exchange Act of
1934, as amended, and any and all amendments thereto, and to file the same, with
all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, the issuer and relevant stock exchanges
(individually, each a "Filing"); provided, however, that unless specifically
instructed in writing by the Trustee, this Power of Attorney does not authorize
any of the above-listed attorneys-in-fact and agents of the Trustee (or any
person substituted or resubstituted therefor) to execute or file for or on
behalf of the Trustee any Filing with respect to (i) the Common Stock, par value
$.01 per share, of The Equitable Companies Incorporated, a Delaware corporation
or (ii) the Units Representing Assignments of Beneficial Ownership of Limited
Partnership Interests in Alliance Capital Management L.P., a Delaware limited
partnership. The Trustee hereby grants to such attorneys-in-fact and agents of
the Trustee full power and authority to do and perform each and every act and
thing requisite and necessary to be done, as fully to all intents and purposes
as the Trustee might or could, and hereby ratifies and confirms all that said
attorneys-in-fact and agents of the Trustee or their substitute or substitutes
may lawfully do or cause to be done by virtue hereof.
The undersigned acknowledges that the foregoing attorneys-in-fact and
agents of the Trustee, in serving in such capacity at the request of the
undersigned, are not assuming any of the undersigned's responsibilities to
comply with Section 13 (d) of the Securities Exchange Act of 1934.
The powers hereby conferred upon the said attorneys-in-fact and agents
shall continue in force until notice of the revocation of this Power of Attorney
has been received by the said attorneys-in-fact and agents of the Trustee.
IN WITNESS WHEREOF, the undersigned has hereunto subscribed this Power of
Attorney this 24 day of June, 1996.
By: /s/ Patrice Garnier
------------------------------------
Name: Patrice Garnier
Title: Voting Trustee
(Page 69 of 133 Pages)
<PAGE>
Power of Attorney
Claude Bebear, as a Voting Trustee (the "Trustee"), pursuant to a Voting
Trust Agreement dated as of May 12, 1992, by and among AXA, a societe anonyme
organized under the laws of the Republic of France, and the Voting Trustees
identified therein, hereby constitutes and appoints each of Richard V. Silver,
Henry Q. Conley, Alvin H. Fenichel and Allen J. Zabusky, acting singly, as the
true and lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for the Trustee and in the name, place and stead of the Trustee,
in any and all capacities, to execute for and on behalf of the Trustee, all
Schedules 13D and Schedules 13G as required by the Securities Exchange Act of
1934, as amended, and any and all amendments thereto, and to file the same, with
all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, the issuer and relevant stock exchanges
(individually, each a "Filing"); provided, however, that unless specifically
instructed in writing by the Trustee, this Power of Attorney does not authorize
any of the above-listed attorneys-in-fact and agents of the Trustee (or any
person substituted or resubstituted therefor) to execute or file for or on
behalf of the Trustee any Filing with respect to (i) the Common Stock, par value
$.01 per share, of The Equitable Companies Incorporated, a Delaware corporation,
or (ii) the Units Representing Assignments of Beneficial Ownership of Limited
Partnership Interests in Alliance Capital Management L.P., a Delaware limited
partnership. The Trustee hereby grants to such attorneys-in-fact and agents of
the Trustee full power and authority to do and perform each and every act and
thing requisite and necessary to be done, as fully to all intents and purposes
as the Trustee might or could, and hereby ratifies and confirms all that said
attorneys-in-fact and agents of the Trustee or their substitute or substitutes
may lawfully do or cause to be done by virtue hereof.
The undersigned acknowledges that the foregoing attorneys-in-fact and
agents of the Trustee, in serving in such capacity at the request of the
undersigned, are not assuming any of the undersigned's responsibilities to
comply with Section 13(d) of the Securities Exchange Act of 1934.
The powers hereby conferred upon the said attorneys-in-fact and agents
shall continue in force until notice of the revocation of this Power of Attorney
has been received by the said attorneys-in-fact and agents of the Trustee.
IN WITNESS WHEREOF, the undersigned has hereunto subscribed this Power of
Attorney this 24 day of June, 1996.
By: /s/ Claude Bebear
------------------------------------
Name: Claude Bebear
Title: Voting Trustee
(Page 70 of 133 Pages)
<PAGE>
Power of Attorney
Henri de Clermont-Tonnerre, as Voting Trustee (the "Trustee"), pursuant to
a Voting Trust Agreement dated as of May 12, 1992, by and among AXA, a societe
anonyme organized under the laws of the Republic of France and the Voting
Trustees identified herein, hereby constitutes and appoints each of Richard V.
Silver, Henry Q. Conley, Alvin H. Fenichel and Allen J. Zabusky, acting singly,
as the true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for the Trustee and in the name, place and
stead of the Trustee, in any and all capacities, to execute for and on behalf of
the Trustee, all Schedules 13D and Schedules 13G as required by the Securities
Exchange Act of 1934, as amended, and any and all amendments thereto, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, the issuer and relevant
stock exchanges (individually, each a "Filing"); provided, however, that unless
specifically instructed in writing by the Trustee, this Power of Attorney does
not authorize any of the above-listed attorneys-in-fact and agents of the
Trustee (or any person substituted or resubstituted therefor) to execute or file
for or on behalf of the Trustee any Filing with respect to (i) the Common Stock,
par value $.01 per share, of The Equitable Companies Incorporated, a Delaware
corporation, or (ii) the Units Representing Assignments of Beneficial Ownership
of Limited Partnership Interests in Alliance Capital Management L.P., a Delaware
limited partnership. The Trustee hereby grants to such attorneys-in-fact and
agents of the Trustee full power and authority to do and perform each and every
act and thing requisite and necessary to be done, as fully to all intents and
purposes as the Trustee might or could, and hereby ratifies and confirms all
that said attorneys-in-fact and agents of the Trustee or their substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
The undersigned acknowledges that the foregoing attorneys-in-fact and
agents of the Trustee, in serving in such capacity at the request of the
undersigned, are not assuming any of the undersigned's responsibilities to
comply with Section 13(d) of the Securities Exchange Act of 1934.
The powers hereby conferred upon the said attorneys-in-fact and agents
shall continue in force until notice of the revocation of this Power of Attorney
has been received by the said attorneys-in-fact and agents of the Trustee.
IN WITNESS WHEREOF, the undersigned has hereunto subscribed this Power of
Attorney this 24 day of June, 1996.
By: /s/ Henri de Clermont-Tonnerre
------------------------------------
Name: Henri de Clermont-Tonnerre
Title: Voting Trustee
(Page 71 of 133 Pages)
EXHIBIT 3
SECURITIES PURCHASE AGREEMENT
SECURITIES PURCHASE AGREEMENT (this "Agreement"), dated as of December 2,
1999, by and between Anthracite Capital, Inc., a Maryland corporation, with
headquarters located at 345 Park Avenue, 29th Floor, New York, New York 10154
(the "Company"), and RECP II Anthracite, LLC, a Delaware limited liability
company (the "Buyer"), a wholly-owned subsidiary of DLJ Real Estate Capital
Partners II, L.P. ("RECP").
WHEREAS:
A. The Company and the Buyer are executing and delivering this Agreement
in reliance upon the exemption from securities registration afforded by Rule 506
under Regulation D ("Regulation D") as promulgated by the United States
Securities and Exchange Commission (the "SEC") under the Securities Act of 1933,
as amended, and the rules and regulations promulgated thereunder (the "1933
Act");
B. The Company has authorized a new series of preferred stock, $.001 par
value per share ("Preferred Stock"), designated as 10.5% Series A Senior
Cumulative Convertible Redeemable Preferred Stock (together with any preferred
stock issued in replacement thereof or otherwise with respect thereto in
accordance with the terms thereof, the "Preferred Shares"), having the rights,
preferences and privileges set forth in the Articles Supplementary to the
charter of the Company attached hereto as Exhibit A (the "Articles
Supplementary");
C. The Buyer desires to purchase and the Company desires to issue and
sell, upon the terms and conditions set forth in this Agreement, 1,200,000
Preferred Shares for an aggregate purchase price of thirty million dollars
($30,000,000) (the "Purchase Price");
D. The Preferred Shares shall have the rights, terms and conditions, and
are convertible into shares of common stock, $0.001 par value per share, of the
Company ("Common Stock"), as set forth in the Articles Supplementary;
E. Contemporaneous with the execution and delivery of this Agreement, the
parties hereto are executing and delivering a Registration Rights Agreement, in
the form attached hereto as Exhibit B (the "Registration Rights Agreement"),
pursuant to which the Company has agreed to provide certain registration rights
under the 1933 Act and the rules and regulations promulgated thereunder, and
applicable state securities laws.
NOW THEREFORE, in consideration of the mutual covenants and agreements
herein contained and intending to be legally bound, the Company and the Buyer
hereby agree as follows:
1. PURCHASE AND SALE OF PREFERRED SHARES
A. PURCHASE OF PREFERRED SHARES. On the Closing Date (as defined below),
the Company agrees to issue and sell to the Buyer and the Buyer agrees to
purchase from the Company 1,200,000 Preferred Shares.
B. FORM OF PAYMENT. On or prior to the Closing Date, subject to the
satisfaction (or waiver) of all of the terms and conditions set forth herein,
and in reliance on the representations,
(Page 72 of 133 Pages)
<PAGE>
warranties and covenants set forth or referred to herein, the Buyer agrees to
pay the Purchase Price to the Company, which shall be $25.00 for each Preferred
Share, or $30 million in the aggregate, for the Preferred Shares to be issued
and sold to it at the Closing (as defined below), by wire transfer of
immediately available funds to the account designated by the Company at least
three (3) business days prior to the Closing Date, against delivery of a duly
executed certificate registered in the name of the Buyer and in the form agreed
upon by the Company and the Buyer representing the Preferred Shares which the
Buyer is purchasing.
C. CLOSING DATE. Subject to the satisfaction (or waiver) of all of the
terms and conditions set forth in Section 5 and Section 6 below, the date and
time of the issuance and sale of the Preferred Shares pursuant to this Agreement
(the "Closing Date") shall be 1:00 p.m. Eastern Standard Time on December 2,
1999 (the "Closing").
2. BUYER'S REPRESENTATIONS AND WARRANTIES. The Buyer represents and warrants to
the Company that:
A. INVESTMENT PURPOSE. As of the date hereof, the Buyer is agreeing to
purchase the Preferred Shares and the shares of Common Stock issuable upon
conversion or otherwise pursuant to the Preferred Shares (such shares of Common
Stock sometimes referred to herein as the "Conversion Shares" and, collectively
with the Preferred Shares, the "Securities") for its own account and not with a
present view towards the public sale or distribution thereof, except pursuant to
sales registered or exempted from registration under the 1933 Act; provided,
however, that by making the representation herein, the Buyer does not agree to
hold any of the Securities for any minimum or other specific term and reserves
the right to dispose of the Securities at any time in accordance with or
pursuant to a registration statement or an exemption under the 1933 Act.
Notwithstanding the foregoing or anything else contained herein to the contrary,
the Securities may be pledged as collateral in connection with a bona fide
margin account or other lending arrangement.
B. ACCREDITED INVESTOR STATUS. RECP, the wholly-owned parent of the Buyer,
is an "accredited investor" as that term is defined in Rule 501(a) of Regulation
D (an "Accredited Investor").
C. RELIANCE ON EXEMPTIONS. The Buyer understands that the Securities are
being offered and sold to it in reliance upon specific exemptions from the
registration requirements of United States federal and state securities laws and
that the Company is relying upon the truth and accuracy of, and the Buyer's
compliance with, the representations, warranties, agreements, acknowledgments
and understandings of the Buyer set forth herein in order to determine the
availability of such exemptions and the eligibility of the Buyer to acquire the
Securities. The Buyer acknowledges that it has reviewed the provisions of Rule
144 (as defined below) and in connection with the sale of the Securities other
than pursuant to an effective registration statement under the 1933 Act will
comply with terms of such rule or another available exemption from registration.
D. INFORMATION. Except as listed on Schedule 2(D) hereof, the Buyer and
its advisors, if any, have been furnished with all materials relating to the
business, finances and operations of the Company and materials relating to the
offer and sale of the Securities which have been requested by the Buyer or its
advisors. The Buyer and its advisors, if any, have been afforded the opportunity
to ask questions of the Company. Neither such inquiries nor any other due
diligence investigation conducted by the Buyer or any of its advisors or
representatives shall modify, amend or affect the Buyer's right to rely on the
Company's representations and warranties contained in Section 3 below. The Buyer
understands that its investment in the Securities involves a significant degree
of risk.
(Page 73 of 133 Pages)
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E. GOVERNMENTAL REVIEW. The Buyer understands that no United States
federal or state agency or any other government or governmental agency has
passed upon or made any recommendation or endorsement of the Securities.
F. TRANSFER OR RE-SALE. The Buyer understands that: (i) except as provided
in the Registration Rights Agreement, the sale or re-sale of the Securities has
not been and is not being registered under the 1933 Act or any applicable state
securities laws, and the Securities may not be transferred unless (a) the
Securities are sold pursuant to an effective registration statement under the
1933 Act, (b) the Securities are sold or transferred in compliance with certain
provisions of the Company's Articles of Incorporation as amended (the
"Articles") relating to Company's election to be taxed as a Real Estate
Investment Trust (a "REIT") under the rules and regulations of the Internal
Revenue Code of 1986, as amended (the "Code") as described more fully in the
Company's registration statement on Form S-3, which does not register the sale
of the Preferred Shares to the Buyer, originally filed under Rule 415 of the
1933 Act with the SEC on April 1, 1999 (Registration No. 333-75473) (as amended,
the "Registration Statement") under the section titled "DESCRIPTION OF CAPITAL
STOCK - Repurchase of Shares and Restrictions on Transfer," (c) the Securities
are sold or transferred to an "affiliate" (as defined in Rule 144 promulgated
under the 1933 Act (or a successor rule) ("Rule 144") of the Buyer who agrees to
sell or otherwise transfer the Securities only in accordance with this Section
2(F) and who is an Accredited Investor or (d) the Securities are sold pursuant
to Rule 144 if available; (ii) any sale of such Securities made in reliance on
Rule 144 may be made only in accordance with the terms of said Rule 144 and
further, if said Rule 144 is not applicable, any re-sale of such Securities
under circumstances in which the seller (or the person through whom the sale is
made) may be deemed to be an underwriter (as that term is defined in the 1933
Act) may require compliance with some other exemption under the 1933 Act or the
rules and regulations of the SEC promulgated thereunder; and (iii) neither the
Company nor any other person is under any further obligation to register such
Securities under the 1933 Act or any state securities laws or to comply with the
terms and conditions of any exemption thereunder (in each case, other than
pursuant to the Registration Rights Agreement) . Notwithstanding the foregoing
or anything else contained herein to the contrary, the Securities may be pledged
as collateral in connection with a bona fide margin account or other lending
arrangement.
G. LEGENDS. The Buyer understands that the Preferred Shares shall bear a
restrictive legend in substantially the following form (and a stop-transfer
order may be placed against transfer of the certificates for such Securities):
"The securities represented by this certificate have not been registered under
the Securities Act of 1933, as amended, or the securities laws of any state of
the United States. The securities represented hereby may not be offered, sold,
or otherwise transferred or assigned in the absence of an effective registration
statement for the securities under the applicable securities laws or unless sold
pursuant to Rule 144 under said act. Notwithstanding the foregoing, the
securities may be pledged as collateral in connection with a bona fide margin
account or other lending arrangement."
The legend set forth above shall be removed and the Company shall issue a
certificate without such legend to the holder of any Security upon which it is
stamped, if, unless otherwise required by applicable state securities laws, (a)
such Security is sold pursuant to an effective registration statement filed
under the 1933 Act or otherwise may be sold pursuant to Rule 144 without any
restriction as to the number of securities as of a particular date that can then
be immediately sold, or (b) such holder provides the Company with reasonable
assurances that such Security can be sold pursuant to Rule 144. The Buyer agrees
to sell all Securities, including those represented by a certificate(s) from
which the legend has been removed, in compliance with applicable prospectus
delivery requirements, if any.
(Page 74 of 133 Pages)
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Until (i) the Board of Directors of the Company determines it is no longer
in the best interests of the Company to attempt to, or continue to, qualify as a
REIT and (ii) there is an affirmative vote of not less than two-thirds of all of
the votes ordinarily entitled to be cast in the election of directors, voting
together as a single class approving the determination of the Board of Directors
set forth in clause (i) above, the Preferred Shares shall bear a legend in
substantially the following form (and a stop-transfer order may be placed
against transfer of the certificates for such Securities):
"The securities represented by this certificate are subject to restrictions on
transfer for the purpose of the Company's election to be subject to tax as a
real estate investment trust under the Internal Revenue Code of 1986, as amended
(the "Code"). Subject to the exemptions granted under (i) the Securities
Purchase Agreement dated December 2, 1999, between the Company and RECP II
Anthracite, LLC, a Delaware limited liability company ("RECP II"), a wholly
owned subsidiary of DLJ Real Estate Capital Partners II, L.P. ("RECP") and that
certain letter from the Company to RECP II and RECP dated December 2, 1999
regarding such exemptions or (ii) pursuant to Section 6.1.7 of the Articles of
Incorporation of the Company, no Person may (i) Beneficially Own or
Constructively Own shares of Common Stock in excess of 9.8% of the number of
outstanding shares of Common Stock, (ii) Beneficially Own or Constructively Own
shares of any class or series of Preferred Stock in excess of 9.8% of the number
of outstanding shares of such class or series of Preferred Stock, (iii)
Beneficially Own shares of Equity Stock that would result in the shares of
Equity Stock being Beneficially Owned by fewer than 100 Persons (determined
without reference to any rules of attribution), or (iv) Beneficially Own or
Constructively Own shares of Equity Stock that would result in the Company being
"closely held" within the meaning of Section 856(h) of the Code. Any Person who
attempts to Beneficially Own or Constructively Own shares of Equity Stock in
excess of the above limitations must immediately notify the Company in writing.
If the restrictions above are violated, the shares of Equity Stock represented
hereby will be transferred automatically and by operation of law to a Trust and
shall be designated Shares-in-Trust. All capitalized terms in this legend have
the meanings defined in the Company's Articles filed with the Department of
Assessment and Taxation of the State of Maryland on March 20, 1998, as the same
may be further amended from time to time (the "Articles"), a copy of which,
including the restrictions on transfer, will be sent without charge to each
stockholder who so requests."
H. OWNERSHIP LIMITATIONS. Subject to Sections 3(Y), 4(H) and 6(I) hereof,
the Buyer understands the restrictions on transfer and ownership of the
Company's shares of beneficial interest included in the Articles and this
Agreement as such restrictions relate to the election by the Company to be taxed
as a REIT for United States federal income tax purposes pursuant to Sections 856
through 860 of the Code (the "REIT Provisions of the Code"), and as described in
the Registration Statement the section titled "DESCRIPTION OF CAPITAL STOCK -
Repurchase of Shares and Restrictions on Transfer."
I. AUTHORIZATION; ENFORCEMENT. This Agreement and the Registration Rights
Agreement have been duly and validly authorized by the Buyer. This Agreement has
been duly executed and delivered on behalf of the Buyer, and this Agreement
constitutes, and upon execution and delivery by the Buyer of the Registration
Rights Agreement, such agreement will constitute, valid and binding agreements
of the Buyer enforceable in accordance with their terms, subject, in each case,
to applicable bankruptcy, insolvency, reorganization or similar laws affecting
generally the enforcement of creditors' rights and subject to a court's
discretionary authority with respect to the granting of specific performance or
other equitable remedies.
J. NO CONFLICTS. The execution and performance of this Agreement and the
Registration Rights Agreement do not conflict with any agreement to which the
Buyer is a party or is
(Page 75 of 133 Pages)
<PAGE>
bound thereby, any court order or judgment addressed to the Buyer, or the
constituent documents of the Buyer.
K. RESIDENCY. The Buyer is a resident of the jurisdiction set forth
immediately below such Buyer's name on the signature pages hereto.
L. USE OF ASSETS. The assets being used by the Buyer to purchase the
Securities do not constitute assets of any employee benefit plan (within the
meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974,
as amended), or any plan (within the meaning of Section 4975 of the Code).
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents and
warrants to the Buyer that:
A. ORGANIZATION AND QUALIFICATION. The Company, Anthracite Securitization
Corp., a Delaware corporation ("ASC") and Anthracite Funding, LLC, a Delaware
limited liability company ("AFLLC," and together with ASC, the "Subsidiaries"),
and Black Rock Financial Management Inc., a Delaware corporation (the
"Manager"), have each been duly organized and are each validly existing as
corporations or limited liability companies in good standing under the laws of
their respective jurisdictions of incorporation or formation and are duly
qualified or registered to transact business in each jurisdiction in which they
conduct their business as now conducted or proposed to be conducted as described
in the Registration Statement, with full power and authority to own, lease, use
and operate their properties and to carry on their business as and where now
owned, leased, used, operated and conducted or proposed to be conducted as
described in the Registration Statement, except where the failure to be so
qualified or registered cannot reasonably be expected to have a material adverse
effect on (i) the business, operations, assets, financial condition, results of
operations or prospects of the Company and the Subsidiaries, or (ii) the ability
of the Manager to perform its obligations under the Investment Advisory
Agreement between the Manager and the Company dated March 28, 1998 (the
"Management Agreement") or the Administration Agreement between the Company and
the Manager dated January 1, 1998 (the "Administration Agreement") (a "Material
Adverse Effect"). Except for the Subsidiaries, the Company has no other
"significant subsidiaries" as defined under the 1933 Act. The Company owns 100%
of the equity interests in AFLLC and 10% of the issued and outstanding shares of
voting Class A common stock, par value $.01 per share, of ASC and 90% of the
issued and outstanding shares of non-voting Class B common stock, par value $.01
per share of ASC.
B. AUTHORIZATION; ENFORCEMENT. (i) The Company has all requisite corporate
power and authority to file and perform its obligations under the Articles
Supplementary and to enter into and perform this Agreement and the Registration
Rights Agreement and to consummate the transactions contemplated hereby and
thereby and to issue and sell the Securities, in accordance with the terms
hereof and thereof, (ii) the execution and delivery of this Agreement and the
Registration Rights Agreement by the Company, the filing of the Articles
Supplementary and the consummation by it of the transactions contemplated hereby
and thereby (including without limitation, the issuance of the Preferred Shares
and the issuance and reservation for issuance of the Conversion Shares issuable
upon conversion of or otherwise pursuant to the Preferred Shares) have been duly
authorized by the Company's Board of Directors and no further consent or
authorization of the Company, its Board of Directors, its stockholders, any
governmental authority or any third party is required, (iii) this Agreement has
been and, as of the Closing, the Articles Supplementary and the Registration
Rights Agreement will be, duly executed and delivered by the Company, and (iv)
this Agreement constitutes, and upon execution and delivery by the Company of
the Registration Rights Agreement and the execution and filing of the Articles
Supplementary, each of such agreements and instruments will constitute, a legal,
valid and binding obligation of the Company enforceable against the Company in
accordance with its terms, subject to
(Page 76 of 133 Pages)
<PAGE>
applicable bankruptcy, insolvency, reorganization or similar laws affecting
generally the enforcement of creditors' rights and subject to a court's
discretionary authority with respect to the granting of specific performance or
other equitable remedies.
C. CAPITALIZATION. As of September 30, 1999, the authorized capital stock
of the Company consists of: (i) 400,000,000 shares of Common Stock of which
20,998,334 shares are issued and outstanding and 1,758,144 shares are reserved
for issuance upon the exercise of outstanding options and (ii) 100,000,000
shares of preferred stock, none of which are issued and outstanding. Except as
contemplated by this Agreement and pursuant to the Company's 1998 Stock Option
Plan (the "Plan"), since September 30, 1999, the Company has not issued any
capital stock. All of such issued and outstanding shares of capital stock have
been duly authorized, validly issued, fully paid and are nonassessable and have
been offered, sold and issued by the Company in compliance with all applicable
laws (including, without limitation, federal and state securities laws). No
shares of capital stock of the Company are subject to preemptive rights of the
stockholders of the Company, and all shares of capital stock of the Company are
free and clear of all liens, pledges, charges, security interests, encumbrances,
options or rights of any kind ("Liens") imposed through the actions or failure
to act of the Company. Except as disclosed in Schedule 3(C), as of the effective
date of this Agreement, (i) there are no outstanding options, warrants, scrips,
rights to subscribe for, puts, calls, rights of first refusal, agreements,
understandings, claims or other commitments or rights of any character
whatsoever relating to, or securities or rights convertible into or exchangeable
for any shares of capital stock of the Company, or arrangements by which the
Company is or may become bound to issue additional shares of capital stock of
the Company; (ii) there are no anti-dilution or price adjustment provisions
contained in any security issued by the Company (or in any agreement providing
rights to security holders) that will be triggered by the issuance of the
Preferred Shares or the Conversion Shares; (iii) there are no contracts,
agreements or understandings between the Company and any person or entity
granting such person or entity the right to require the Company to file a
registration statement under the 1933 Act with respect to any securities of the
Company or to require the Company to include any securities of the Company in a
registration statement filed under the 1933 Act, other than the registration
rights granted to the underwriters in connection with the Company's initial
public offering; and (iv) the Company is not a party to, nor does it have any
knowledge of, any agreement with respect to the voting of the Common Stock.
D. REIT STATUS. At all times commencing with its taxable year ending
December 31, 1998, the Company has been, and upon the sale of the Preferred
Shares, the Company will continue to be, organized and operated in conformity
with the requirements for qualification and taxation as a REIT under the Code,
and its proposed method of operation will enable it to continue to meet the
requirements for qualification and taxation as a REIT under the Code, and no
actions have been taken (or not taken which are required to be taken) which
would cause such qualification to be lost. The Company is not currently a
"pension-held REIT" within the meaning of Code Section 856(h)(3)(D) and the
Treasury Regulations promulgated thereunder.
E. ISSUANCE OF SHARES. The Preferred Shares have been duly authorized and,
upon issuance in accordance with the terms of this Agreement and payment in
respect thereof, will be validly issued, fully paid and non-assessable, and free
from all taxes and Liens with respect to the issue thereof and shall not be
subject to any preemptive rights, rights of first refusal or offer or other
similar rights. The Conversion Shares are duly authorized and reserved for
issuance, and, upon conversion of the Preferred Shares in accordance with the
terms thereof, will be validly issued, fully paid and non-assessable, and free
from all taxes and Liens with respect to the issuance thereof and will not be
subject to preemptive rights, rights of first refusal or offer (other than those
contained herein) or other similar rights. The form of certificates evidencing
the Preferred Shares, and upon conversion of the Preferred Shares, the form of
certificates evidencing the Conversion Shares will comply with all applicable
legal requirements and the
(Page 77 of 133 Pages)
<PAGE>
rules of the New York Stock Exchange (the "NYSE") and, in all material respects,
with all applicable requirements of the Articles and By-laws of the Company, as
amended (the "By-laws").
F. NO CONFLICTS. The execution, delivery and performance of this Agreement
and the Registration Rights Agreement by the Company and the consummation by the
Company of the transactions contemplated hereby and thereby (including, without
limitation, the filing of the Articles Supplementary and the issuance, sale and
delivery of the Preferred Shares and the issuance and reservation for issuance
of the Conversion Shares) will not (i) conflict with or result in a violation of
any provision of the Articles or By-laws or the constituent documents of the
Subsidiaries (ii) violate or conflict with, or result in a breach of any
provision of, or constitute a default (or an event which with notice or lapse of
time or both could become a default) under, or give to others any rights of
termination, amendment, acceleration or cancellation of, any material agreement,
license, instrument, contract, commitment, arrangement or indenture to which the
Company or any of the Subsidiaries are a party or by which any of them or their
assets are bound (each a "Material Contract"), or (iii) result in a violation of
any law, statute, rule, regulation, ordinance, order, judgment or decree
(including Federal and state securities laws and regulations and regulations of
any self-regulatory organizations to which the Company, any of the Subsidiaries
or their securities are subject) applicable to the Company or any of the
Subsidiaries or by which any of them or their property or assets are bound or
affected (except for such conflicts, defaults, terminations, amendments,
accelerations, cancellations and violations as would not, individually or in the
aggregate, have a Material Adverse Effect), (iv) result in the creation or
imposition of a material Lien on any assets owned or held by the Company, (v)
violate or result in the revocation or suspension of any permit held by the
Company or the Subsidiaries or (vi) cause the Company to fail to qualify to be
taxed as a REIT for the year ending December 31, 1999. Except as specifically
contemplated by this Agreement and as required under the 1933 Act, any
applicable state securities laws and the rules of the NYSE, the Company is not
required to obtain any consent, authorization or order of, or make any filing or
registration with, any court, governmental agency, regulatory agency, self
regulatory organization or stock market or any third party in order for it to
execute, deliver or perform any of its obligations under this Agreement, the
Registration Rights Agreement or the Articles Supplementary in accordance with
the terms hereof or thereof or to issue and sell the Preferred Shares in
accordance with the terms hereof and to issue the Conversion Shares upon
conversion of the Preferred Shares. All consents, authorizations, orders,
filings and registrations which the Company is required to obtain pursuant to
the preceding sentence have been obtained or effected on or prior to the date
hereof.
G. MANAGEMENT AGREEMENT. Each of the Company and the Manager, has all
requisite power and authority to perform the Management Agreement and the
Administration Agreement and to consummate the transactions contemplated
therein; the Management Agreement and the Administration Agreement have been
duly authorized, executed and delivered by each of the Company and the Manager
and constitute valid and binding agreements of each of the Company and the
Manager, enforceable in accordance with their terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally, and by general principles of equity.
H. CONSENTS. No approval, authorization, consent or order of or filing
with any federal, state or local governmental or regulatory commission, board,
body, authority or agency is required in connection with (i) the execution,
delivery and performance by the Company of this Agreement, the Articles
Supplementary, the Registration Rights Agreement, or the consummation of the
transaction contemplated hereby and thereby, (ii) the sale and delivery of the
Preferred Shares, other than (x) such as have been obtained, or will have been
obtained at the Closing, under the 1933 Act or the 1934 Act (as defined herein)
and (y) any necessary qualification under the applicable securities or blue sky
laws.
(Page 78 of 133 Pages)
<PAGE>
I. COMPLIANCE. The Company is in compliance in all material respects with
all applicable statutes, laws, ordinances, rules, regulations, orders, decrees
and judgments applicable to it, except those noncompliance with which is not
reasonably expected by the Company to have a Material Adverse Effect.
J. PROCEEDINGS. There are no actions, suits, proceedings, inquiries or
investigations pending or, to the Company's knowledge, threatened against the
Company, the Subsidiaries or the Manager or any of their officers and directors
or to which the properties, assets or rights of the Company or the Subsidiaries
are subject, at law or in equity, before or by any federal, state, local or
foreign governmental or regulatory commission, board, body, authority, arbitral
panel or agency which could reasonably be expected to result in a judgment,
decree, award or order having a Material Adverse Effect, or which could
adversely affect the consummation of the transactions contemplated by this
Agreement, the Registration Rights Agreement, the Management Agreement or the
Administration Agreement in any material respect.
K. BROKER/DEALER. The Company (i) is not required to register as a
"broker" or "dealer" in accordance with the provisions of the Securities
Exchange Act of 1934 or the rules and regulations thereunder (the "1934 Act"),
and (ii) directly, or indirectly through one or more intermediaries, does not
control or have any other association with (within the meaning of Article 1 of
the By-laws of the National Association of Securities Dealers, Inc. (the
"NASD")) any member firm of the NASD.
L. INSIDER LOANS. Except as otherwise disclosed in the Company SEC
Documents (defined below), there are no material outstanding loans or advances
or material guarantees of indebtedness by the Company to or for the benefit of
any of the officers or directors of the Company.
M. INVESTMENT COMPANY. The Company is not, nor as a result of transactions
contemplated hereby and the application of the proceeds from the sale of the
Preferred Shares, will it become an "investment company" within the meaning of
the Investment Company Act of 1940, as amended (the "1940 Act").
N. FINDERS FEES. The Company has not incurred any liability for any
brokers' or finder's fees or similar payments in connection with the
transactions herein contemplated.
O. SEC FILINGS. Since January 1, 1998, the Company has filed in a timely
manner all reports required to be filed by it pursuant to the federal securities
laws and the rules and regulations of the SEC promulgated thereunder (the
"Company SEC Documents"), all of which, to the Company's knowledge, at the time
such Company SEC Documents were filed, complied in all material respects with
the requirements of the 1933 Act or the 1934 Act, as applicable, and the rules
and regulations of the SEC thereunder applicable to such Company SEC Documents.
To the Company's knowledge, none of the Company SEC Documents (including all
financial statements included therein, and exhibits and schedules thereto, and
documents incorporated by reference therein), at the time filed, contained any
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading. The Company has
not filed any report or other document with the SEC since November 15, 1999.
P. FINANCIAL INFORMATION. To the Company's knowledge, the financial
statements of the Company included in the Company SEC Documents (i) comply as to
form in all material respects with applicable accounting requirements and the
published rules and regulations of the SEC with respect thereto, (ii) have been
prepared in accordance with generally accepted accounting principles applied on
a consistent basis throughout the periods covered thereby, (iii) fairly present
(subject, in the case of the
(Page 79 of 133 Pages)
<PAGE>
unaudited statements, to normal, recurring audit adjustments and the absence of
footnotes) the consolidated financial position of the Company and any
consolidated subsidiaries as of the dates thereof and the consolidated results
of their operations and their cash flow statements for the periods then ended,
and (iv) are correct and complete in all material respects, and are materially
consistent with the Company's books and records, which books and records are
accurate and complete in all material respects. The pro forma financial data
included in the Company's most recent Form 10-Q has been prepared in accordance
with the applicable rules and guidelines of the SEC with respect to pro forma
financial data, and the adjustments used therein are appropriate to give effect
to the transaction or circumstance referred to therein.
Q. ABSENCE OF CERTAIN CHANGES. Except as set forth in the Company SEC
Documents, since December 31, 1998, the Company and the Subsidiaries have
conducted their respective businesses in the ordinary course. Since September
30, 1999, there has been no development in the Company's business which has had
a Material Adverse Effect.
R. LIABILITIES. Except as set forth in the Company SEC Documents, the
Company has no liabilities or obligations (whether absolute, accrued, contingent
or otherwise), except for liabilities incurred in the ordinary and usual course
of business since September 30, 1999 consistent with the past practices of the
Company.
S. PRIVATE OFFERING. None of the Company, its Affiliates (as defined
below) or any person acting on their or any of their Affiliates' behalf, has
engaged, or will engage, in connection with the offering of the Securities, in
any communication or other form of general solicitation or general advertising
within the meaning of Rule 502(c) under the 1933 Act. Assuming the
representations and warranties of the Buyer set forth in Section 2 are true, the
offer, issuance and sale of the Securities in the manner contemplated by this
Agreement are exempt from the registration and prospectus delivery requirements
of the 1933 Act, and have been registered or qualified (or are exempt from
registration and qualification) under the registration, permit or qualification
requirements of all applicable state securities laws. "Affiliate" of any person
or entity means a person or entity which directly or indirectly through one or
more intermediaries controls, or is controlled by, or is under common control
with, such person or entity.
T. YEAR 2000 COMPLIANCE. Except as set forth in Schedule 3(T): (i) all of
the equipment and systems used by the Company and its Subsidiaries are "Year
2000 Compliant" so that they will accurately process, calculate, compare,
sequence, transmit and receive date/time data from, into, and between the 20th
and 21st centuries and the years 1999 and 2000 and leap year calculations,
except for such noncompliance that would not, individually or in the aggregate,
have a Material Adverse Effect; and (ii) no material equipment and systems will
create any logical or mathematical inconsistency or malfunction or cease to
function when processing date/time data, except for such inconsistencies or
malfunctions that would not, individually or in the aggregate, have a Material
Adverse Effect.
U. NO DEFAULTS. Neither the Company nor any Subsidiary is in breach or
violation of, or in default under (nor has any event occurred which with notice,
lapse of time, or both would constitute a breach of, or default under or give to
others any rights of termination, amendment, acceleration or cancellation), its
charter or by-laws, or in the performance or observance of any obligation,
agreement, covenant or condition contained in any license, indenture, mortgage,
deed of trust, loan or credit agreement, contract, or other agreement or
instrument to which the Company or the Subsidiaries is a party or by which any
of them or their respective assets are bound, except for such breaches or
defaults that could be reasonably expected not to have a Material Adverse
Effect. The Manager is not in breach or violation of or in default under (nor
has any event occurred which with notice, lapse of time, or both
(Page 80 of 133 Pages)
<PAGE>
would constitute a breach of, or default under or give to others any rights of
termination, amendment, acceleration or cancellation) the Management Agreement
or Administration Agreement.
V. BUSINESS. Neither the Company nor the Subsidiaries own or operate any
real property.
W. EMPLOYEES. Neither the Company nor the Subsidiaries retain any
employees.
X. INVESTMENTS. As used in this Section 3(X), "Company" means the Company
and the Subsidiaries. The Company owns and has good and marketable title to all
of the investments in other persons or entities ("Investments"), free and clear
of all Liens, except those Liens that could, individually or in the aggregate,
not reasonably be expected to result in a Material Adverse Effect. There is no
monetary default, breach, violation or event of acceleration on the part of any
person or entity that is a party thereto beyond any applicable grace period
existing under any of the Investments or loans securing such Investments or
loans by the Company to any other person or entity, except for (i) such
defaults, breaches, violations or events of acceleration that would not
reasonably be expected to result in a Material Adverse Effect and (ii) such
loans in special servicing set forth on Schedule 3(X) hereto. The Company has
not given any notice (that is still outstanding) of any non-monetary default,
breach, violation or event of acceleration and, to the Company's knowledge there
is no non-monetary default, breach, violation or event of acceleration existing
under any of the Investments, loans securing such Investments or loans by the
Company to any other person or entity that could, individually or in the
aggregate, reasonably be expected to result in a Material Adverse Effect. The
Company has not received any written notice or been informed of any default,
breach or violation by the Company of any of the terms of any Investment, loans
securing such Investments or loans by the Company to any other person or entity,
and to the Company's knowledge, no such default, breach or violation exists,
except, in either instance, for such defaults, breaches or violations that could
not, individually or in the aggregate, reasonably be expected to result in a
Material Adverse Effect, and no person has any right of offset against the
Company in respect of any Investment, loans securing such Investments or loans
by the Company to any other person or entity. To the Company's knowledge, there
is no monetary default or any material default, breach, violation or event of
acceleration under any loan or security ranking in priority senior to any
Investment, loans securing such Investmensts or loans by the Company to any
other person or entity of the Company.
Y. OWNERSHIP LIMITATIONS. The Company has taken all actions necessary to
(i) exempt (the "Exemption") the Buyer, RECP and their respective Affiliates and
the direct and indirect holders of interests therein ("Ownership Limitation
Affiliates") from the Ownership Limit (as defined in the Articles) pursuant to
Section 6.1.7 of the Articles with respect to all Preferred Shares and 22% of
the Common Stock (after taking into account any Common Stock issuable upon
conversion of the Preferred Shares) of the Company determined by (i) the number
of shares outstanding or (ii) Current Market Price (as defined in the Articles
Supplementary) whichever produces the largest holding of Common Stock under the
two methods, computed with regard to all outstanding shares of Common Stock (the
"Allowed Common Shares"), and (ii) to exempt Buyer, RECP and Ownership
Limitation Affiliates from the "Interested Stockholder" and "Control Share
Acquisition" provisions (Subtitles 6 and 7 of Title 3) of the Maryland General
Corporation Law, with respect to the ownership by the Buyer, RECP, the Ownership
Limitation Affiliates or any Qualifying Transferee of the Preferred Shares and
any future ownership of Allowed Common Shares, and the Company will not take any
action that results in the Buyer, RECP, the Ownership Limitation Affiliates or
any Qualifying Transferee no longer being exempted or excepted, as applicable,
from the Ownership Limit and Maryland law provisions, as described above,
provided Buyer complies with the terms and conditions of the Exemption as set
forth in that certain letter from the Company to Buyer dated the date hereof
regarding the Exemption (the "Exemption Letter"). Any transferee of the Buyer
(i) which is not an "individual" (within the meaning of Section 542(a)(2) of the
(Page 81 of 133 Pages)
<PAGE>
Code, as modified by Section 856(h)(3), i.e., not treating a pension fund under
Section 401(a) of the Code as an individual), (ii) whose ownership of Preferred
Shares or Allowed Common Shares into which such Preferred Shares are convertible
will not cause the Company to (a) fail to qualify as a REIT under the Code or
(b) be a "pension-held REIT" within the meaning of Section 856(h)(3)(D) of the
Code and (iii) who executes a shareholder undertaking substantially similar to
that executed by Buyer in connection with the Company's issuance of the
Exemption (a "Qualifying Transferee"), shall, upon such transfer, also be (i)
exempt from the Ownership Limit with respect to the Preferred Shares and the
Allowed Common Shares and (ii) exempt from the "Interested Stockholder" and
"Control Share Acquisition" provisions of the Maryland General Corporation Law.
Z. DISCLOSURE. Neither this Agreement, the Registration Rights Agreement,
the Articles Supplementary, any exhibit or schedule hereto or thereto, nor any
other statements or certificates made or delivered in connection herewith or
therewith, on behalf of the Company, the Subsidiaries or the Manager (as
supplemented or amended by documents delivered at a later time, but prior to the
Closing), contains any untrue statement of a material fact and, when taken
together with the Company SEC Documents, do not omit to state a material fact
necessary to make the statements herein or therein, in light of the
circumstances under which they were made, not misleading.
AA. AFFILIATE TRANSACTIONS. Neither the Company nor any Subsidiary has
entered into any transaction, agreement or arrangement with the Manager or any
of its Affiliates except for the Management Agreement, the Administration
Agreement or as set forth on Schedule 3(AA).
BB. TAX RETURNS. The Company and ASC each has timely filed all material
United States federal, state, local, and foreign tax returns required to be
filed which tax returns are true, accurate and complete in all material
respects. The Company and ASC each has paid all material United States federal,
state, local, and foreign taxes required to be paid. There are no material tax
liens against the Company or its assets except for liens for taxes not yet due
or payable. AFLLC is a wholly-owned limited liability company that is treated as
a disregarded entity for United States federal income tax purposes.
4. COVENANTS.
A. BEST EFFORTS. The parties shall use their best efforts to satisfy
timely each of the conditions described in Sections 5 and 6 of this Agreement.
B. FORM D; BLUE SKY LAWS. The Company agrees to file a Form D with respect
to the Securities as required under Regulation D of the Securities Act and to
provide a copy thereof to each Buyer promptly after such filing. The Company
shall take such action as the Company shall reasonably determine is necessary to
qualify the Securities for issuance and sale to the Buyer at the date of
issuance pursuant to this Agreement under applicable securities or "blue sky"
laws of the states of the United States (or to obtain an exemption from such
qualification).
C. REPORTING STATUS; ELIGIBILITY TO USE FORM S-3. The Common Stock is
registered under Section 12(g) of the 1934 Act. So long as the Buyer
beneficially owns any of the Securities, the Company shall timely file all
reports required to be filed with the SEC pursuant to the 1934 Act, and the
Company shall not, so long as the Buyer beneficially owns any of the Securities,
terminate its status as an issuer required to file reports under the 1934 Act
even if the 1934 Act or the rules and regulations thereunder would permit such
termination. The Company currently meets, and, so long as the Buyer beneficially
owns any of the Securities, will take reasonable action to continue to meet, the
(Page 82 of 133 Pages)
<PAGE>
"registrant eligibility" requirements set forth in the general instructions to
Form S-3 under the Securities Act.
D. RESERVATION OF SHARES. The Company shall at all times have authorized,
and reserved for the purpose of issuance, a sufficient number of shares of
Common Stock to provide for the full conversion of the outstanding Preferred
Shares and issuance of the Conversion Shares in connection therewith.
E. LISTING. Following registration thereof under the 1933 Act, the Company
shall promptly secure the listing of the Conversion Shares upon each national
securities exchange or automated quotation system, if any, upon which shares of
Common Stock are then listed (subject to official notice of issuance) and, so
long as the Buyer or its assigns owns any of the Securities, shall maintain, so
long as any other shares of Common Stock shall be so listed, such listing of the
Conversion Shares.
F. NO INTEGRATION. The Company shall not make any offers or sales of any
security (other than the Securities) under circumstances that would require
registration of the Securities being offered or sold hereunder under the 1933
Act or cause the offering of Securities to be integrated with any other offering
of securities by the Company for the purpose of any stockholder approval
provision applicable to the Company or its securities.
G. CONSENTS AND APPROVALS. No approval, authorization, consent or order of
or filing with any federal, state or local governmental or regulatory
commission, board, body, authority or agency is required in connection with (i)
the execution, delivery and performance by the Company of this Agreement, the
Articles Supplementary, the Registration Rights Agreement, the consummation of
the transactions contemplated hereby and thereby or (ii) the sale and delivery
of the Preferred Shares, other than (x) such as have been obtained, or will have
been obtained at the Closing, under the 1933 Act or the 1934 Act and (y) any
necessary qualification under the applicable securities or blue sky laws.
H. EXCEPTED HOLDER. In accordance with Section 3(Y) hereof, the Company
will not cause the Buyer, RECP, or the Ownership Limitation Affiliates or any
Qualifying Transferee to fail to be (a) exempt from the Ownership Limit (as
defined in the Articles) pursuant to 6.1.7 of the Articles with respect to the
Preferred Shares and the Allowed Common Shares as set forth in the Exemption
Letter and (b) exempted from the "Interested Stockholder" and "Control Share
Acquisition" provisions (Subtitles 6 and 7 of Title 3) of the Maryland General
Corporation Law, with respect to the ownership by the Buyer, RECP, the Ownership
Limitation Affiliates or any Qualifying Transferee of the Preferred Shares and
any future ownership of Allowed Common Shares. As set forth in the Exemption
Letter, the Company may demand reasonable information concerning any proposed
transferee demonstrating that such Person satisfies the requirements to be a
Qualifying Transferee (as set forth in Section 3(Y)) prior to registering such
transfer of Preferred Shares or Allowed Common Shares.
I. REIT STATUS. The Company will use its best efforts to operate in a
manner in accordance with the requirements for qualification and taxation as a
REIT. In the event of the taking or proposed taking of any action that would
cause any representation set forth in Section 3(D) to be incorrect if made as of
any date following the Closing, the Company shall use reasonable efforts to
notify the undersigned prior to the taking of such action.
J. INVESTMENT COMPANY. The Company will conduct its affairs in such a
manner so as to ensure that the Company is not an "investment company" or an
entity subject to regulation as an investment company within the meaning of the
1940 Act.
(Page 83 of 133 Pages)
<PAGE>
5. CONDITIONS TO THE COMPANY'S OBLIGATION TO SELL. The obligation of the Company
hereunder to issue and sell the Preferred Shares to the Buyer at the Closing is
subject to the satisfaction (or waiver), on or before the Closing Date, of each
of the following conditions thereto, provided that these conditions are for the
Company's sole benefit and may be waived by the Company at any time in its sole
discretion by prior delivery of written notice of such waiver to the Buyer:
A. The Buyer shall have executed this Agreement and the Registration
Rights Agreement, and delivered the same to the Company.
B. The Buyer shall have delivered the Purchase Price in accordance with
Section 1(B) above.
C. The representations and warranties of the Buyer shall be true and
correct in all material respects as of the date when made and as of the Closing
Date as though made at that time (except for representations and warranties that
speak as of a particular date and in such case shall be true and correct as of
that particular date), and the Buyer shall have performed, satisfied and
complied in all material respects with the covenants, agreements and conditions
required by this Agreement to be performed, satisfied or complied with by the
Buyer at or prior to the Closing Date.
D. No litigation, statute, rule, regulation, executive order, decree,
ruling or injunction shall have been enacted, entered, promulgated or endorsed
by or in any court or governmental authority of competent jurisdiction or any
self-regulatory organization having authority over the matters contemplated
hereby which prohibits the consummation of any of the transactions contemplated
by this Agreement.
E. The Buyer shall have delivered an executed copy of the Shareholder's
Undertaking, dated as of the Closing Date, in the form attached as Exhibit C
hereto.
6. CONDITIONS TO THE BUYER'S OBLIGATION TO PURCHASE. The obligation of the Buyer
hereunder to purchase the Preferred Shares at the Closing is subject to the
satisfaction (or waiver), on or before the Closing Date, of each of the
following conditions, provided that these conditions are for the Buyer's sole
benefit and may be waived by the Buyer at any time in its sole discretion by
prior delivery of written notice by the Buyer to the Company:
A. The Company shall have executed this Agreement and the Registration
Rights Agreement, and delivered the same to the Buyer and all covenants,
agreements and conditions contained therein that are required to have been
performed or complied with on or prior to the Closing, shall have been performed
or complied with or waived in writing by the Buyer.
B. The Company shall have delivered to the Buyer a duly executed
certificate representing the Preferred Shares in accordance with Section 1(B)
above.
C. The Articles Supplementary shall have been accepted for filing with the
SDAT, and a copy thereof certified by the SDAT shall have been made available to
the Buyer, and the Articles Supplementary shall be in full force and effect
without modification.
D. The representations and warranties of the Company shall be true and
correct in all material respects as of the date when made and as of the Closing
Date as though made at such time (except for representations and warranties that
speak as of a particular date and in such case shall be true and correct as of
that particular date) and the Company shall have performed, satisfied and
complied in all material respects with the covenants, agreements and conditions
required by this Agreement to be performed, satisfied or complied with by the
Company at or prior to the Closing Date.
(Page 84 of 133 Pages)
<PAGE>
E. No litigation, statute, rule, regulation, executive order, decree,
ruling or injunction shall have been enacted, entered, promulgated or endorsed
by or in any court or governmental authority of competent jurisdiction or any
self-regulatory organization having authority over the matters contemplated
hereby which prohibits the consummation of any of the transactions contemplated
by this Agreement, nor shall any action, suit or proceeding be pending or
threatened with respect thereto.
F. Trading in the Common Stock on the NYSE shall not have been suspended
by the SEC or the NYSE.
G. The Company shall have obtained all requisite consents of or approvals
from federal, state and any other Governmental Authority (as defined below)
necessary to consummate the transactions contemplated by this Agreement and
issue the Securities and permit the utilization of the proceeds of the Preferred
Shares as described herein. "Governmental Authority" means any nation or
government, any state, province, county or other political subdivision thereof,
and any entity exercising any executive, legislative, judicial, regulatory or
administrative functions of, or pertaining to, government.
H. There shall be no pending (of which an employee of the Company has
received service or notice of process) or threatened action, suit,
investigation, litigation or proceeding affecting the Company or any of the
Subsidiaries before any Governmental Authority ("Litigation"), that would in the
reasonable opinion of the Company, result in an adverse decision that could (A)
have a Material Adverse Effect or (B) restrain, prevent or impose materially
adverse conditions upon the transactions contemplated by this Agreement.
I. In accordance with Section 3(Y), the Company shall have taken all
action necessary to (i) exempt the Buyer, RECP, the Ownership Limitation
Affiliates or any Qualifying Transferee from the Ownership Limit (as defined in
the Articles) pursuant to Section 6.1.7. of the Articles, as set forth in the
Exemption Letter, with respect to all Preferred Shares and the Allowed Common
Shares and (ii) cause the Buyer, the Ownership Limitation Affiliates or any
Qualifying Transferee to be exempt from the "Interested Stockholder" and
"Control Share Acquisition" provisions (Subtitles 6 and 7 of Title 3) of the
Maryland General Corporation Law, with respect to the ownership by the Buyer,
RECP, the Ownership Limitation Affiliates or any Qualifying Transferee of the
Preferred Shares and any future ownership of Allowed Common Shares, and the
Company will not take any action that results in the Buyer, the Ownership
Limitation Affiliates or any Qualifying Transferee no longer being exempted or
excepted, as applicable, from the Ownership Limit and Maryland law provisions,
as described above, provided such persons comply with the terms and conditions
of the Exemption Letter. Any transferee of the Buyer (i) which is not an
"individual" (within the meaning of Section 542(a)(2) of the Code, as modified
by Section 856(h)(3), i.e., not treating a pension fund under Section 401(a) of
the Code as an individual), (ii) whose ownership of Preferred Shares or Allowed
Common Shares into which such Preferred Shares are convertible will not cause
the Company to (a) fail to qualify as a REIT under the Code or (b) be a
"pension-held REIT" within the meaning of Section 856(h)(3)(D) of the Code and
(iii) who executes a shareholder undertaking substantially similar to that
executed by Buyer in connection with the Company's issuance of the Exemption (a
"Qualifying Transferee"), shall, upon such transfer, be (i) exempt from the
Ownership Limit with respect to the Preferred Shares and the Allowed Common
Shares, as set forth in the Exemption Letter, and (ii) exempt from the
"Interested Stockholder" and "Control Share Acquisition" provisions of the
Maryland General Corporation Law. The Company shall have delivered a letter to
the Buyer, in a form reasonably satisfactory to the Buyer confirming the above
described exemptions from the Ownership Limit and "Interested Stockholder" and
"Control Share Acquisition" provisions.
J. The Buyer shall have received the following, addressed to them and in
form and substance reasonably satisfactory to them:
(Page 85 of 133 Pages)
<PAGE>
(i) certified copies of the resolutions adopted by the Board of
Directors of the Company authorizing the execution, delivery and performance of
this Agreement, the Registration Rights Agreement, each of the other agreements,
instruments and transactions contemplated hereby or thereby including the
issuance and sale of the Securities;
(ii) certified copies of the Articles of Incorporation and By-laws
of the Company as in effect at the Closing;
(iii) a certificate of the Secretary of the Company dated the
Closing Date, as to the incumbency and signatures of the officers executing this
Agreement and all instruments executed pursuant hereto;
(iv) Officer's Certificate, dated as of the Closing Date, of the
Company to the effect set forth in Sections 6(A) (with respect to performance
and compliance with the covenants, agreements and conditions of this Agreement)
and 6(D); and
(v) the opinion of each of (A) Skadden, Arps, Slate, Meagher & Flom
LLP and (B) Miles & Stockbridge, P.C., Maryland counsel to the Company, each in
a form reasonably acceptable to the Buyer and its counsel.
K. All matters relating to this Agreement, the Registration Right
Agreement, the Securities and the transactions contemplated hereby and thereby
and the legal and organizational structure of the Company shall be reasonably
satisfactory from a legal point of view to the Buyer, and the Buyer shall have
received such additional certificates, legal opinions and other documentation as
it may have reasonably requested with respect to this Agreement, the
Registration Right Agreement, the Securities and the transactions contemplated
hereby and thereby.
L. Andrew P. Rifkin shall be appointed a Director of the Company by the
Buyer.
7. INDEMNIFICATION
A. The Company shall indemnify and hold harmless the Buyer and its
respective directors, officers, employees, agents, affiliates, successors and
permitted assigns from and against any and all (x) liabilities, losses or
damages ("Loss") and (y) reasonable out-of-pocket expenses, including without
limitation attorneys' fees and expenses ("Expense") incurred by such party in
connection with (i) the Company's breach or failure to perform its obligations
and covenants under this Agreement, the Articles Supplementary, the Registration
Rights Agreement or in connection with the enforcement by the Buyer of any of
the Company's obligations or covenants hereunder or thereunder including the
enforcement of this indemnity and (ii) any breach of any warranty or the
inaccuracy of any representation, or misrepresentation or omission, made by the
Company in this Agreement.
B. The Buyer shall indemnify and hold the Company and its trustees,
officers, employees, agents, affiliates, successors and permitted assigns
harmless from and against any and all Losses and Expenses incurred by the
Company in connection with (i) the Buyer's breach or failure to perform its
obligations under this Agreement, or in connection with the enforcement by the
Company of any of the Buyer's obligations or covenants hereunder or thereunder
including the enforcement of this Indemnity and (ii) any breach of any warranty
or the inaccuracy of any representation, or misrepresentation or omission, made
by the Buyer in this Agreement.
C. If a party believes that any of the persons entitled to indemnification
under this Section 7 has suffered or incurred any Loss or incurred any Expense,
such party shall notify the indemnifying party
(Page 86 of 133 Pages)
<PAGE>
promptly in writing describing such Loss or Expense, the amount thereof, if
known, and the method of computation of such Loss or Expense, all with
reasonable particularity and containing a reference to the provisions of this
Agreement, the Articles Supplementary, the Registration Rights Agreement, or any
certificate delivered pursuant hereto in respect of which such Loss or Expense
shall have occurred; provided, however, that the omission by such indemnified
party to give notice as provided herein shall not relieve the indemnifying party
of its indemnification obligation under this Section 7 except to the extent that
such indemnifying party suffers a material Loss as a result of such failure to
give notice. If any action at law or suit in equity is instituted against a
third party with respect to which any of the persons entitled to indemnification
under this Section 7 intends to claim any liability or expense as Loss or
Expense under this Section 7, any such person shall promptly notify the
indemnifying party of such action or suit as specified in this Section 7(C) and
in Section 7(D).
D. In the event of any claim for indemnification hereunder resulting from
or in connection with any claim or legal proceeding by a third party, the
indemnified persons shall give notice thereof to the indemnifying party not
later than 20 business days prior to the time any response to the asserted claim
is required, if possible, and in any event within 15 days following the date
such indemnified person has actual knowledge thereof; provided, however, that
the omission by such indemnified party to give notice as provided therein shall
not relieve the indemnifying party of its indemnification obligation under this
Section 7 except to the extent that such indemnifying party suffers a material
Loss as a result of such failure to give notice. In the event of any such claim
for indemnification resulting from or in connection with a claim or legal
proceeding by a third party, the indemnifying party may, at its sole cost and
expense, assume the defense thereof; provided, however, that counsel for the
indemnifying party, who shall conduct the defense of such claim or legal
proceeding, shall be reasonably satisfactory to the indemnified party; and
provided, further, that if the defendants in any such actions include both the
indemnified persons and the indemnifying party and the indemnified persons shall
have reasonably concluded based on a written opinion of counsel that there may
be legal defenses or rights available to them which have not been waived and are
in actual or potential conflict with those available to the indemnifying party,
the indemnified persons shall have the right to select one law firm reasonably
acceptable to the indemnifying party to act as separate counsel, on behalf of
such indemnified persons, at the expense of the indemnifying party. Unless the
indemnified persons are represented by separate counsel pursuant to the second
proviso of the immediately preceding sentence, if an indemnifying party assumes
the defense of any such claim of legal proceeding, such indemnifying party shall
not consent to entry of any judgment, or enter into any settlement, that (a) is
not subject to indemnification in accordance with the provisions of this Section
7, (b) provides for injunctive or other nonmonetary relief affecting the
indemnified persons or (c) does not include as an unconditional term thereof the
giving by each claimant or plaintiff to such indemnified persons of an
unconditional release from all liability with respect to such claim or legal
proceeding, without the prior written consent of the indemnified person (which
consent, in the case of clauses (b) and (c), shall not be unreasonably
withheld); and provided, further, that unless the indemnified persons are
represented by separate counsel pursuant to the second proviso of the
immediately preceding sentence, the indemnified persons may, at their own
expense, participate in any such proceeding with the counsel of their choice
without any right of control thereof. So long as the indemnifying party is in
good faith defending such claim or proceeding, the indemnified persons shall not
compromise or settle such claim or proceeding without the prior written consent
of the indemnifying party, which consent shall not be unreasonably withheld. If
the indemnifying party does not assume the defense of any such claim or
litigation in accordance with the terms hereof, the indemnified persons may
defend against such claim or litigation in such manner as they may deem
appropriate, including, without limitation, settling such claim or litigation
(after giving prior written notice of the same to the indemnifying party) on
such terms as the indemnified persons may deem appropriate, and the indemnifying
party will promptly indemnify the indemnified persons in accordance with the
provisions of Section 7.
(Page 87 of 133 Pages)
<PAGE>
8. GOVERNING LAW; MISCELLANEOUS.
A. GOVERNING LAW. This Agreement shall be governed by and interpreted in
accordance with the laws of the State of New York without regard to the
principles of conflict of laws.
B. COUNTERPARTS; SIGNATURES BY FACSIMILE. This Agreement may be executed
in one or more counterparts, all of which shall be considered one and the same
agreement and shall become effective when counterparts have been signed by each
party and delivered to the other party. This Agreement, once executed by a
party, may be delivered to the other party hereto by facsimile transmission of a
copy of this Agreement bearing the signature of the party so delivering this
Agreement.
C. HEADINGS. The headings of this Agreement are for convenience of
reference only and shall not form part of, or affect the interpretation of, this
Agreement.
D. SEVERABILITY. If any provision of this Agreement shall be invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall not
affect the validity or enforceability of the remainder of this Agreement or the
validity or enforceability of this Agreement in any other jurisdiction.
E. ENTIRE AGREEMENT; AMENDMENTS. This Agreement and the Schedules,
Exhibits and instruments referenced herein contain the entire understanding of
the parties with respect to the matters covered herein and therein and, except
as specifically set forth herein or therein, neither the Company nor the Buyer
makes any representation, warranty, covenant or undertaking with respect to such
matters. No provision of this Agreement may be waived other than by an
instrument in writing signed by the party to be charged with enforcement and no
provision of this Agreement may be amended other than by an instrument in
writing signed by the Company and the holders of at least a majority of the
Preferred Shares then outstanding. No such amendment shall be effective to the
extent that it applies to less than all of the holders of the Preferred Shares
then outstanding. No consideration shall be offered or paid to any person to
amend or consent to a waiver or modification of any provision of this Agreement,
the Registration Rights Agreement or the Articles Supplementary unless the same
consideration also is offered to all the parties to this Agreement or the
Registration Rights Agreement or holders of the Preferred Shares, as the case
may be.
F. NOTICES. Any notices required or permitted to be given under the terms
of this Agreement shall be sent overnight by express mail or delivered
personally or by courier (including an overnight delivery service) or by
facsimile and shall be effective upon receipt, if delivered by overnight express
mail, personally or by courier (including an overnight delivery service) or by
facsimile, in each case addressed to a party. The addresses for such
communications shall be:
If to the Company:
Anthracite Capital, Inc.
345 Park Avenue, 29th Floor
New York, NY 10154
Attention: Chief Financial Officer
Facsimile: 212-754-8758
With copy to:
Skadden, Arps, Slate, Meagher & Flom LLP
919 Third Avenue
New York, NY 10022
(Page 88 of 133 Pages)
<PAGE>
Attention: Vincent J. Pisano, Esq.
Facsimile: 212-735-2000
If to the Buyer to:
RECP II Anthracite, LLC
c/o DLJ Real Estate Capital Partners II, L.P.
277 Park Avenue, 19th Floor
New York, NY 10172
Attention: Andrew P. Rifkin, Phillip C. Tager and William C. Helm
Facsimile: (212) 892-7553
With copy to:
Rogers & Wells LLP
200 Park Avenue
New York, NY 10166
Attention: Robert E. King, Jr.
Facsimile: (212) 878-8375
Each party shall provide written notice to the other party of any change in
address.
G. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure
to the benefit of the parties and their successors and assigns. Neither the
Company nor the Buyer shall assign this Agreement or any rights or obligations
hereunder without the prior written consent of the other; provided, that,
subject to Section 2(F), the Buyer may assign its rights and obligations
hereunder to any person that purchases Securities in a private transaction from
the Buyer or to any of its "affiliates," as that term is defined under the 1934
Act, without the consent of the Company; provided, further, however, that the
transferee has agreed in writing to be bound by the provisions of this Agreement
and acknowledges the assignment provisions of the Registration Rights Agreement
with such transferee becoming a "Buyer" under this Agreement with all of the
rights and obligations the Buyer has hereunder and the Company shall have been
notified of the name and address of the transferee.
H. THIRD PARTY BENEFICIARIES. This Agreement is intended for the benefit
of the parties hereto and their respective permitted successors and assigns, and
is not for the benefit of, nor may any provision hereof be enforced by, any
other person.
I. FURTHER ASSURANCES. Each party shall do and perform, or cause to be
done and performed, all such further acts and things, and shall execute and
deliver all such other agreements, certificates, instruments and documents, as
the other party may reasonably request in order to carry out the intent and
accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
J. NO STRICT CONSTRUCTION. The language used in this Agreement shall be
deemed to be the language chosen by the parties to express their mutual intent,
and no rules of strict construction will be applied against any party.
K. EXPENSES. Each of the parties hereto shall pay its own costs and
expenses in connection with the transactions contemplated hereby, whether or not
such transactions shall be consummated, except as shall be explicitly provided
otherwise in the Registration Rights Agreement.
(Page 89 of 133 Pages)
<PAGE>
L. SURVIVAL. The agreements and covenants set forth in Sections 3, 4, 7
and 8 shall survive the closing hereunder notwithstanding any due diligence
investigation conducted by or on behalf of the Buyer.
M. KNOWLEDGE CLAUSES. As used in this Agreement, the phrases "to the
Company's knowledge," "to the knowledge of the Company" and phrases of similar
import means the knowledge of the Chief Executive Officer, President, any Vice
President and the Chief Financial Officer of the Company, after reasonable
investigation and inquiry commensurate with that of a reasonable person holding
such position with a public company in the ordinary course of business.
N. VALIDITY. If fulfillment of any provision of this Agreement, at the
time such fulfillment shall be due, shall transcend the limit of validity
prescribed by law, then the obligation to be fulfilled shall be reduced to the
limit of such validity; and if any clause or provision contained in this
Agreement operates or would operate to invalidate this Agreement, in whole or in
part, then such clause or provision only shall be held ineffective, as though
not herein contained, and the remainder of this Agreement shall remain operative
and in full force and effect.
(Page 90 of 133 Pages)
<PAGE>
IN WITNESS WHEREOF, the Buyer and the Company have caused this Agreement
to be duly executed as of the date first above written.
ANTHRACITE CAPITAL, INC.
By: /s/ Richard M. Shea
----------------------------------
Richard M. Shea
Chief Operating Officer and Chief Financial Officer
RECP II ANTHRACITE, LLC
By: /s/ Philip C. Tager
----------------------------------
Name: Philp C. Tager
Title: Senior Vice President
ADDRESS: 277 Park Avenue, 19th Floor
New York, NY 10172
AGGREGATE SUBSCRIPTION AMOUNT: $30,000,000
Number of Preferred Shares: 1,200,000
(Page 91 of 133 Pages)
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Schedule 2(F)
1. Intercreditor Agreement for the Savoy Hotel transaction referred to in the
Novation Certificated, dated August 24, 1998, to Bankers Trust Company,
whereby the Company is made party to the Intercreditor Agreement.
(Page 92 of 133)
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Schedule 3(T)
None
(Page 93 of 133)
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Schedule 3(X)
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Property Name: Deal: Current Balance: Delinq. Status:
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Gulf Hotels Portfolio CMAC 98 C2 $ 9,084,957.12 90 days plus
- --------------------------------------------------------------------------------
Bay State Building CMAC 98 C1 $ 1,238,597.14 90 days plus
- --------------------------------------------------------------------------------
Village Park Apts CMAC 98 C2 $ 6,786,590.68 90 days plus
- --------------------------------------------------------------------------------
Westland Gardens West Apts CMAC 98 C2 $ 3,153,206.38 90 days plus
- --------------------------------------------------------------------------------
Howard Johnson's Airport Lodge CMAC 98 C2 $ 2,661,488.16 30 days
- --------------------------------------------------------------------------------
Biocell Labs CMAC 98 C1 $ 1,964,538.55 30 days
- --------------------------------------------------------------------------------
Forest Hills Rest Home CMAC 98 C1 $ 1,171,199.00 30 days
- --------------------------------------------------------------------------------
Stewart Plaza LBCMT 98 C1 $22,433,815.67 90 days plus
- --------------------------------------------------------------------------------
Dauphin Plaza Shopping Center LBCMT 98 C1 $12,133,354.94 60 days
- --------------------------------------------------------------------------------
Sedgwick Centre Office Building LBCMT 98 C1 $ 2,887,645.27 30 days
- --------------------------------------------------------------------------------
One Pavilion Avenue LBCMT 98 C1 $ 2,313,727.23 90 days plus
- --------------------------------------------------------------------------------
11 Loans $65,829,120.14
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(Page 94 of 133)
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Schedule 3(AA)
The Company has a 1% interest in Midland Loan Conduit I and a 1%
interest in Midland Loan Conduit II. The Company maintains a PNC Funding Line of
Credit, for up to $2.5 million.
In the following CMBS Acquisitions, Midland Loan Services
contributed collateral:
Description Original Fee Settlement Date
CMAC 98C1 65,576 7/29/98
CMAC 98C2 187,966 9/30/98
PNCMAC 99-CM 40,872 12/7/99
Midland Loan Services is also a special servicer of:
CMAC 98C1
CMAC 98C2
PNCMAC 99-CM
DLJCM 98-CG1
PNC Bank is loan administrator of WaterGarden II Construction loan.
(Page 95 of 133)
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Exhibit A
Articles Supplementary
(Page 96 of 133)
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Exhibit B
Registration Rights Agreement
(Page 97 of 133)
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Exhibit C
Shareholder's Undertaking
(Page 98 of 133)
EXHIBIT 4
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of December 2,
1999, by and among Anthracite Capital, Inc., a Maryland corporation, with its
headquarters located at 345 Park Avenue, 29th Floor, New York, NY 10154 (the
"Company"), and RECP II Anthracite, LLC, a Delaware Limited Liability Company
(together with any assignee or transferee of all of its respective rights
hereunder, the "Investor"), a wholly-owned subsidiary of DLJ Real Estate Capital
Partners II, L.P. ("RECP").
WHEREAS:
A. In connection with the Securities Purchase Agreement by and among the
parties hereto of even date herewith (the "Securities Purchase Agreement"), the
Company has agreed, upon the terms and subject to the conditions contained
therein, to issue and sell to the Investor shares of its preferred stock
("Preferred Stock"), $.001 par value per share, designated and classified 10.5%
Series A Senior Cumulative Convertible Redeemable Preferred Stock (the
"Preferred Shares"), that are convertible into shares (as converted, the
"Conversion Shares") of the Company's common stock, par value $.001 per share
(the "Common Stock"), upon the terms and subject to the limitations and
conditions set forth in the Articles Supplementary to the Articles of
Incorporation of the Company (the "Articles Supplementary"); and
B. To induce the Investor to execute and deliver the Securities Purchase
Agreement, the Company has agreed to provide certain registration rights under
the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder, or any similar successor statute (collectively, the
"1933 Act"), and applicable state securities laws;
C. The Company registered Preferred Stock and Common Stock pursuant to a
registration statement on Form S-3 filed under Rule 415 of the 1933 Act with the
Securities and Exchange Commission (the "SEC") that was declared effective by
the SEC on September 29, 1999 (Registration No. 333-75473) (the "Existing
Registration Statement").
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and the Investor
hereby agrees as follows:
1. DEFINITIONS.
A. As used in this Agreement, the following terms shall have the following
meanings:
(i) "Investor" means RECP II Anthracite, LLC and any transferee or
assignee who agrees to become bound by the provisions of this Agreement in
accordance with Section 9 hereof.
(ii) "Register," "Registered," and "Registration" refer to a
registration effected by preparing and filing a Registration Statement or
Statements in compliance with the 1933 Act and pursuant to Rule 415 under the
1933 Act or any successor rule providing for offering securities on a continuous
basis ("Rule 415"), and the declaration or ordering of effectiveness of such
Registration Statement by the United States Securities and Exchange Commission
(the "SEC").
(iii) "Registrable Securities" means (i) the Preferred Shares and
the Conversion Shares issued or issuable upon conversion of or otherwise
pursuant to the Preferred Shares, (ii) any
(Page 99 of 133)
<PAGE>
securities of the Company 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 by the Company generally for, or in
replacement by the Company generally of, the Preferred Shares or the Conversion
Shares or (iii) any securities issued in exchange for Registrable Securities in
any merger or reorganization of the Company.
(iv) "Registration Period" means the period ending on the earliest
to occur of (i) the sale of all the Registrable Securities under an effective
Registration Statement or (ii) the date on which all of the Registrable
Securities are eligible for sale pursuant to Rule 144 under the 1933 Act and can
be sold in one transaction in accordance with the volume limitations contained
in Rule 144(e)(1)(i) under the 1933 Act, if applicable.
(v) "Registration Statement(s)" means a registration statement(s) of
the Company under the 1933 Act covering the resale of the Registrable
Securities, including the Existing Registration Statement as amended by a
post-effective amendment allowing the Registrable Securities to be included in
the Existing Registration Statement.
B. Capitalized terms used herein and not otherwise defined herein shall
have the respective meanings set forth in the Securities Purchase Agreement.
2. REGISTRATION.
A. DEMAND REGISTRATION. The Company, within sixty (60) days of the date
hereof, shall prepare and file with the SEC a Registration Statement on Form S-3
(or, if Form S-3 is not then available, on such form of Registration Statement
as is then available to effect a registration of the Registrable Securities)
(the "Investor Registration Statement"), covering the resale of the Registrable
Securities and complying as to form in all material respects with applicable SEC
rules. The number of shares of Preferred Stock initially included in such
Registration Statement shall equal the number of Preferred Shares issued. The
number of shares of Common Stock initially included in such Registration
Statement shall equal the number of Conversion Shares that are then issuable
upon conversion of the Preferred Stock. The Registration Statement, to the
extent allowable under the 1933 Act and the rules and regulations promulgated
thereunder (including Rule 416), shall state that such Registration Statement
also covers such indeterminate number of additional shares of Common Stock as
may become issuable upon conversion of the Preferred Shares to prevent dilution
resulting from stock splits, stock dividends or similar transactions, and to the
extent necessary such Registration Statement shall be amended from time to time
to cover additional Registrable Securities of the Investor.
B. UNDERWRITTEN OFFERING. If any offering pursuant to a Registration
Statement pursuant to Section 2(A) hereof involves an underwritten offering
pursuant to Section 2E herein, the Investor shall have the right to select one
legal counsel and an investment banker or bankers and manager or managers to
administer the offering, which investment banker or bankers or manager or
managers and legal counsel shall be reasonably satisfactory to the Company.
C. PIGGY-BACK REGISTRATIONS. Subject to the last sentence of this Section
2(C), if at any time prior to the expiration of the Registration Period, the
Company shall determine to file with the SEC a Registration Statement relating
to an offering for its own account or the account of others under the 1933 Act
of any of its equity securities (other than on Form S-4 or Form S-8 or their
then equivalents relating to equity securities to be issued solely in connection
with any acquisition of any entity or business or equity securities issuable in
connection with stock option or other employee benefit plans), the Company shall
send to the Investor who is entitled to registration rights under this Section
2(C) written notice of such determination and, if within ten (10) days after the
date of such written notice, the Investor
(Page 100 of 133)
<PAGE>
shall so request in writing, the Company shall include in such Registration
Statement all or any part of the Registrable Securities the Investor requests to
be registered, except that if, in connection with any underwritten public
offering for the account of the Company the managing underwriter(s) thereof
shall impose a limitation on the number of shares of Common Stock which may be
included in the Registration Statement because, in the good faith judgment of
such underwriter(s), marketing or other factors dictate that such limitation is
necessary to facilitate public distribution, then the Company shall be obligated
to include in such Registration Statement only such limited number of the
Registrable Securities with respect to which the Investor has requested
inclusion hereunder as the underwriter shall advise. Any exclusion of
Registrable Securities shall be made pro rata among the Investor and any other
holders of Registrable Securities seeking to include Registrable Securities in
proportion to the number of Registrable Securities sought to be included by the
Investor and such other holders of Registrable Securities; provided, however,
that the Company shall not exclude any Registrable Securities unless the Company
has first excluded all outstanding securities, the holders of which are not
entitled to demand registration rights in such Registration Statement or are not
entitled to pro rata inclusion with the Registrable Securities; and provided,
further, however, that any exclusion of Registrable Securities shall be made pro
rata with holders of other securities having the right to include such
securities in the Registration Statement other than holders of securities
entitled to inclusion of their securities in such Registration Statement by
reason of demand registration rights. No right to registration of Registrable
Securities under this Section 2(C) shall be construed to limit any registration
required under Section 2(A) hereof. If an offering in connection with which the
Investor is entitled to registration under this Section 2(C) is an underwritten
offering, then the Investor whose Registrable Securities are included in such
Registration Statement shall, unless otherwise agreed by the Company, offer and
sell such Registrable Securities in an underwritten offering using the same
underwriter or underwriters and, subject to the provisions of this Agreement, on
the same terms and conditions as other shares of Common Stock included in such
underwritten offering.
Notwithstanding anything to the contrary set forth herein, the
registration rights of the Investor pursuant to this Section 2(C) shall only be
available in the event and at such times as the Company fails to timely file,
obtain effectiveness or maintain effectiveness of any Registration Statement to
be filed pursuant to Section 2(A) in accordance with the terms of this
Agreement; provided, however, that if the Company files a Registration Statement
pursuant to this Section 2(C), the Company shall take the steps necessary to
obtain the effectiveness of or shall take no steps to cause the lapse in
effectiveness of, as the case may be, of any such Registration Statement even if
a Registration Statement filed pursuant to Section 2(A) or this Section 2(C)
becomes effective; provided, further, however, that nothing contained in the
preceding two provisos shall (i) be construed as requiring the Company to
register or maintain the registration of any of the Registrable Securities
pursuant to more than one Registration Statement; or (ii) diminish the Company's
obligation to register all of the Registrable Securities.
D. ELIGIBILITY FOR FORM S-3. The Company represents and warrants that it
currently complies with the registrant eligibility and transaction requirements
for the use of Form S-3 for registration of the sale by the Investor and of the
Registrable Securities and the Company shall use its best efforts to file all
reports required to be filed by the Company with the SEC in a timely manner so
as to maintain such eligibility for the use of Form S-3 until the expiration of
the Registration Period.
3. OBLIGATIONS OF THE COMPANY. In connection with the registration of the
Registrable Securities, the Company shall have the following obligations:
A. The Company shall prepare and file with the SEC a Registration
Statement with respect to the number of Registrable Securities provided in
Section 2(A), and thereafter use its best efforts to cause such Registration
Statement relating to the Registrable Securities to become effective as soon as
practicable after such filing (but in no event later than ninety (90) days after
the date on which the
(Page 101 of 133)
<PAGE>
Investor Registration Statement was filed with the SEC), and keep the Investor
Registration Statement effective, free of material misstatements or omissions
(including the preparation and filing of any amendments and supplements
necessary for such purpose), pursuant to Rule 415 at all times until the
expiration of the Registration Period and as a result of the event or
circumstance described in the foregoing clause, the legend with respect to
transfer restrictions required under the Agreement is removed. The Investor
Registration Statement (including any amendments or supplements thereto and
prospectuses contained therein) shall comply with all applicable SEC rules and
regulations and shall not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein, or necessary to
make the statements therein not misleading (except for an untrue statement or
alleged untrue statement of a material fact or omission or alleged omission of a
material fact made in reliance on and in conformity with written information
furnished to the Company by or on behalf of the Investor specifically for use
therein).
B. The Company shall prepare and file with the SEC such amendments
(including post-effective amendments) and supplements to the Investor
Registration Statement and the prospectus used in connection with the Investor
Registration Statement as may be necessary to keep the Investor Registration
Statement effective at all times during the Registration Period except for
Allowed Delays, and, during such period, comply with the provisions of the 1933
Act with respect to the disposition of all Registrable Securities of the Company
covered by the Investor Registration Statement until such time as all of such
Registrable Securities have been disposed of in accordance with the intended
methods of disposition by the seller or sellers thereof as set forth in the
Registration Statement.
C. The Company shall furnish to the Investor whose Registrable Securities
are included in a Registration Statement and its legal counsel, without charge,
(i) promptly after the same is prepared and publicly distributed, filed with the
SEC, or received by the Company, one copy of each Registration Statement and any
amendment thereto, each preliminary prospectus and prospectus and each amendment
or supplement thereto, and, in the case of the Investor Registration Statement
referred to in Section 2(A), each letter written by or on behalf of the Company
to the SEC or the staff of the SEC, and each item of correspondence from the SEC
or the staff of the SEC, in each case relating to such Registration Statement
(other than any portion thereof which contains information for which the Company
has sought confidential treatment), and (ii) such number of copies of a
prospectus, including a preliminary prospectus, and all amendments and
supplements thereto and such other documents as the Investor may reasonably
request in order to facilitate the disposition of the Registrable Securities
owned by the Investor. The Company will promptly notify the Investor by
facsimile of the effectiveness of each Registration Statement or any
post-effective amendment. The Company will promptly respond to any and all
comments received from the SEC, with a view towards causing each Registration
Statement or any amendment thereto to be declared effective by the SEC as soon
as practicable and shall file an acceleration request as soon as practicable
following the resolution or clearance of all SEC comments or, if applicable,
following notification by the SEC that any such Registration Statement or any
amendment thereto will not be subject to review.
D. The Company shall use its best efforts to (i) register and qualify the
Registrable Securities covered by the Registration Statement prior to the time
that the Registration Statement is declared effective by the SEC under all other
securities or "blue sky" laws of all jurisdictions in the United States as the
Investor reasonably requests, (ii) prepare and file in those jurisdictions such
amendments (including post-effective amendments) and supplements to such
registrations and qualifications as may be necessary to maintain the
effectiveness thereof during the Registration Period, (iii) take such other
actions as may be necessary to maintain such registrations and qualifications in
effect at all times during the Registration Period, and (iv) take all other
actions reasonably necessary or advisable to qualify the Registrable Securities
for sale in such jurisdictions; provided, however, that the Company shall not be
required in connection therewith or as a condition thereto to (a) qualify to do
(Page 102 of 133)
<PAGE>
business in any jurisdiction where it would not otherwise be required to qualify
but for this Section 3(D), (b) subject itself to general taxation in any such
jurisdiction and (c) file a general consent to service of process in any such
jurisdiction. The Company shall promptly notify the Investor of the receipt by
the Company of any notification with respect to the suspension of the
registration or qualification of any of the Registrable Securities for sale
under the securities or "blue sky" laws of any jurisdiction in the United States
or its receipt of actual notice of the initiation or threatening of any
proceeding for such purpose.
E. In the event of an underwritten offering of the Registrable Securities,
the Investor shall select underwriters for the offering and the Company shall
enter into and perform its obligations under an underwriting agreement, in usual
and customary form, including, without limitation, customary indemnification and
contribution obligations, with the underwriters of such offering. The Company
shall only be obligated to effect two such underwritten offerings pursuant to
Section 2(B) hereof.
F. As promptly as practicable after becoming aware of such event, the
Company shall notify the Investor of the happening of any event, of which the
Company has knowledge, as a result of which the prospectus included in any
Registration Statement, as then in effect, includes an untrue statement or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, and use its best efforts promptly to prepare
a supplement or amendment to any Registration Statement or the related
prospectus or any document incorporated therein by reference or file any other
required document to correct such untrue statement or omission, and deliver such
number of copies of such supplement or amendment to the Investor as the Investor
may reasonably request; provided that, at any time after the date which is
thirty (30) days after the Registration Statement is declared effective by the
SEC for not more than thirty (30) consecutive calendar days, the Company may
delay the disclosure of material non-public information concerning the Company
(as well as prospectus or Registration Statement updating) the disclosure of
which would materially impede, delay or interfere with any pending material
financing, acquisition or corporate reorganization or other material corporate
development involving the Company or any of its subsidiaries, or require the
disclosure of important information which the Company has a material business
purpose for preserving as confidential or the disclosure of which would
materially impede the Company's ability to consummate a significant transaction
(an "Allowed Delay"); provided that no more than three such Allowed Delays may
be made in any twelve (12) month period; provided, further, that the Company
shall promptly (i) notify the Investor in writing of the existence of an Allowed
Delay and (ii) advise the Investor in writing to cease all sales under such
Registration Statement until the end of the Allowed Delay. Upon expiration of
the Allowed Delay, the Company shall again be bound by the first sentence of
this Section 3(F) with respect to the information giving rise thereto.
G. The Company shall use its best efforts to prevent the issuance of any
stop order or other suspension of effectiveness of any Registration Statement,
and, if such an order is issued, to obtain the withdrawal of such order at the
earliest possible moment and to notify the Investor (or, in the event of an
underwritten offering, the managing underwriters) of the issuance of such order
and the resolution thereof.
H. The Company shall permit a single firm of counsel designated by the
holders whose shares make up at least a majority of the Registrable Securities
included in such Registration Statement to review such Registration Statement
and all amendments and supplements thereto (as well as all requests for
acceleration or effectiveness thereof), other than documents filed pursuant to
the Securities Exchange Act of 1934, as amended, a reasonable period of time
(but not less than five (5) business days prior to the filing of such
Registration Statement or supplement or amendment thereto) prior to their filing
with the SEC, and not file any document in a form to which such counsel
reasonably objects and will not request acceleration of such Registration
Statement without prior notice to such counsel. The sections of such
Registration Statement covering information with respect to the Investor, the
Investor's beneficial
(Page 103 of 133)
<PAGE>
ownership of securities of the Company or the Investor's intended method of
disposition of Registrable Securities shall conform in all material respects to
the information provided to the Company by the Investor.
I. The Company shall make generally available to its security holders as
soon as practicable, but not later than ninety (90) days after the close of the
period covered thereby, an earnings statement (in form complying with the
provisions of Rule 158 under the 1933 Act) covering a twelve-month period
beginning not later than the first day of the Company's fiscal quarter next
following the effective date of the Registration Statement.
J. The Company shall make available for inspection by (i) any underwriter
participating in any disposition pursuant to a Registration Statement, (ii) one
firm of attorneys and one firm of accountants or other agents retained by the
Investor, and (iii) one firm of attorneys retained by all such underwriters
(collectively, the "Inspectors") all pertinent financial and other records, and
pertinent corporate documents and properties of the Company (collectively, the
"Records"), as shall be reasonably deemed necessary by each Inspector to enable
each Inspector to exercise its due diligence responsibility, and cause the
Company's officers, directors and employees to supply all information which any
Inspector may reasonably request for purposes of such due diligence; provided,
however, that each Inspector shall hold in confidence and shall not make any
disclosure (except to an Investor or another Inspector) of any Record or other
information which the Company determines in good faith to be confidential, and
of which determination the Inspectors are so notified, unless (a) the disclosure
of such Records is necessary to avoid or correct a misstatement or omission in
any Registration Statement, (b) the release of such Records is ordered pursuant
to a subpoena or other order from a court or government body of competent
jurisdiction, or (c) the information in such Records has been made generally
available to the public other than by disclosure in violation of this or any
other agreement. The Company shall not be required to disclose any confidential
information in such Records to any Inspector until and unless such Inspector
shall have entered into confidentiality agreements (in form and substance
reasonably satisfactory to the Company) with the Company with respect thereto,
substantially in the form of this Section 3(J). The Investor agrees that it
shall, upon learning that disclosure of such Records is sought in or by a court
or governmental body of competent jurisdiction or through other means, give
prompt notice to the Company and allow the Company, at its expense, to undertake
appropriate action to prevent disclosure of, or to obtain a protective order
for, the Records deemed confidential. Nothing herein (or in any other
confidentiality agreement between the Company and the Investor) shall be deemed
to limit the Investor's ability to sell Registrable Securities in a manner which
is otherwise consistent with applicable laws and regulations.
K. The Company shall hold in confidence and not make any disclosure of
information concerning the Investor provided to the Company unless (i)
disclosure of such information is necessary to comply with federal or state
securities laws, (ii) the disclosure of such information is necessary to avoid
or correct a misstatement or omission in any Registration Statement, (iii) the
release of such information is ordered pursuant to a subpoena or other order
from a court or governmental body of competent jurisdiction, or (iv) such
information has been made generally available to the public other than by
disclosure in violation of this or any other agreement. The Company agrees that
it shall, upon learning that disclosure of such information concerning the
Investor is sought in or by a court or governmental body of competent
jurisdiction or through other means, give prompt notice to the Investor prior to
making such disclosure, and allow the Investor, at its expense, to undertake
appropriate action to prevent disclosure of, or to obtain a protective order
for, such information.
L. The Company shall cause all the Registrable Securities covered by the
Registration Statement to be listed on each national securities exchange on
which securities of the same class or series issued by the Company are then
listed, if any, if the listing of such Registrable Securities is then permitted
(Page 104 of 133)
<PAGE>
under the rules of such exchange. Additionally, the Company shall, promptly
after the registration of the Conversion Shares with the SEC, apply to list the
Conversion Shares on the New York Stock Exchange.
M. The Company shall provide a transfer agent and registrar, which may be
a single entity, for the Registrable Securities not later than the effective
date of the Registration Statement.
N. The Company shall cooperate with the Investor and the managing
underwriter or underwriters, if any, to facilitate the timely preparation and
delivery of certificates (not bearing any restrictive legends) representing
Registrable Securities to be offered pursuant to a Registration Statement and
enable such certificates to be in such denominations or amounts, as the case may
be, as the managing underwriter or underwriters, if any, or the Investor may
reasonably request and registered in such names as the managing underwriter or
underwriters, if any, or the Investor may request. Additionally, management of
the Company shall make itself reasonably available in order to cooperate in good
faith with the managing underwriter or underwriters in connection with any road
show, presentations or conference calls undertaken in connection with an
underwritten offering pursuant to Section 2(B) hereof.
O. The Company shall, if reasonably requested by the Investor or
Investor's counsel, incorporate as promptly as practicable in a prospectus
supplement or post-effective amendment such information as such Investor or
Investor's counsel requests to be included therein, including, without
limitation, with respect to the Registrable Securities being sold by the
Investor to any underwriter or underwriters, the purchase price being paid
therefor by such underwriter or underwriters and any other terms of any
underwritten offering of the Registrable Securities to be sold in such offering,
and the Company shall as promptly as practicable make all required filings of
such prospectus supplement or post-effective amendment.
P. The Company shall reasonably cooperate with the Investor in good faith
to facilitate the timely preparation and delivery of certificates (which shall
not bear any restrictive legends unless required under applicable law or the
Company's Articles of Incorporation) representing Registrable Securities sold
under a Registration Statement to the purchasers thereof, and enable such
Registrable Securities to be in such denominations and registered in such names
as the managing underwriter or underwriters, if any, or the Investor may request
and keep available and make available to the Company's transfer agent prior to
the effectiveness of such Registration Statement a supply of such certificates.
Q. The Company shall enter into such customary agreements (including, if
applicable, an underwriting agreement in customary form) and take such other
actions as the Investor or the underwriters participating in an underwritten
public offering, if any, may reasonably request in order to expedite or
facilitate the disposition of Registrable Securities. The Investor may, at its
option, require that any or all of the representations, warranties and covenants
of the Company to or for the benefit of any underwriters also be made to and for
the benefit of the Investor.
R. The Company shall furnish to the Investor whose Registrable Securities
are included in the offering and to each underwriter, if any, if requested by
the Investor or underwriter, a signed counterpart, addressed to the Investor or
underwriter, of (i) an opinion or opinions of counsel to the Company and (ii) a
comfort letter or comfort letters from the Company's independent public
accountants, each in customary form and covering matters of the type customarily
covered by opinions or comfort letters, as the case may be.
S. The Company shall, during the period when the prospectus is required to
be delivered under the Securities Act, file in a timely fashion all documents
required to be filed with the Commission pursuant to Sections 13(a), 13(c), 14
or 15(d) of the Exchange Act.
(Page 105 of 133)
<PAGE>
T. The Company covenants that it will file any reports required to be
filed by it under the Securities Act and the Exchange Act, and the rules and
regulations adopted by the Commission thereunder (or, if the Company is not
required to file such reports, it will, upon the request of any Investor, make
publicly available other information so long as necessary to permit sales of the
Registrable Securities under Rule 144 under the Securities Act), and it will
take such further action as any Investor may reasonably request, all to the
extent required from time to time to enable such Investor to sell Registrable
Securities without registration under the Securities Act within the limitation
of the exemptions provided by (a) Rule 144 under the Securities Act, as such
Rule may be amended from time to time, or (b) any successor rule or similar
provision or regulation hereafter adopted by the Commission. Upon the request of
any Investor, the Company will deliver to such Investor a written statement as
to whether it has complied with such requirements.
U. The Company covenants that it will file all reports required to be
filed by it under the Securities Act and the Exchange Act, and the rules and
regulations adopted by the Commission thereunder (or if the Company is not
required to file such reports, it will, upon the request of any Investor, make
available other information so long as necessary to permit sales of the
Registrable Securities pursuant to Rule 144A under the Securities Act), and it
will take such further action as any Investor may request, all to the extent
required from time to time to enable such Investor to sell Registrable
Securities without registration under the Securities Act within the limitation
of the exemptions provided by (a) Rule 144A, as such rule may be amended from
time to time, or (b) any successor rule or similar provision or regulation
hereafter adopted by the Commission.
4. OBLIGATIONS OF THE INVESTOR. In connection with the registration of the
Registrable Securities, the Investor shall have the following obligations.
A. The Investor shall promptly furnish (but in no event later than three
(3) business days prior to the filing of any Registration Statement or
amendment(s) or supplement(s) thereto with respect to the Registrable
Securities) to the Company such information regarding itself, the Registrable
Securities held by it and the intended method of disposition of the Registrable
Securities held by it as shall be reasonably required to effect the registration
of such Registrable Securities and shall execute such documents in connection
with such registration as the Company may reasonably request. At least six (6)
business days prior to the anticipated filing date of the Registration Statement
and any amendment(s) or supplement(s) thereto, the Company shall notify the
Investor of the information the Company reasonably requires from the Investor
and the Investor shall supply or cause its representatives to supply such
information within three (3) business days; provided, however, that if the
Investor fails to deliver to the Company the information referred to in the
first sentence of this paragraph prior to the filing of the Registration
Statement or amendment(s) or supplement(s) thereto, the Investor shall bear the
cost of any additional Registration Statement or amendment(s) or supplement(s)
thereto which the Company is required to file due solely to such failure;
provided, however, that the failure of the Investor to provide such information
shall not delay or otherwise prevent the Company from the filing of the
Registration Statement or amendment(s) or supplement(s) thereto.
B. The Investor, by the Investor's acceptance of the Registrable
Securities for inclusion in a Registration Statement, agrees to cooperate with
the Company as reasonably requested by the Company in connection with the
preparation and filing of a Registration Statement hereunder, unless the
Investor has notified the Company in writing of the Investor's election to
exclude all of the Investor's Registrable Securities from a Registration
Statement.
C. In the event the Investor determines to engage the services of an
underwriter, the Investor agrees to enter into and perform the Investor's
obligations under an underwriting agreement, in usual and customary form,
including, without limitation, customary indemnification and contribution
obligations,
(Page 106 of 133)
<PAGE>
with the managing underwriter of such offering and take such other actions as
are reasonably required in order to expedite or facilitate the disposition of
the Registrable Securities, unless the Investor has notified the Company in
writing of such Investor's election to exclude all of the Investor's Registrable
Securities from the Registration Statement.
D. The Investor agrees that, upon receipt of any notice from the Company
of the happening of any event of the kind described in Section 3(F) or 3(G), the
Investor will immediately discontinue disposition of Registrable Securities
pursuant to the Registration Statement covering such Registrable Securities
until the Investor's receipt of the copies of the supplemented or amended
prospectus contemplated by Section 3(F) or 3(G) or notice from the Company that
such supplement or amendment is not necessary and, if so directed by the
Company, the Investor shall deliver to the Company (at the expense of the
Company) or destroy (and deliver to the Company a certificate of destruction)
all copies in the Investor's possession, of the prospectus covering such
Registrable Securities current at the time of receipt of such notice.
E. No Investor may participate in any underwritten registration hereunder
unless the Investor (i) agrees to sell the Investor's Registrable Securities on
the basis provided in any underwriting arrangements in usual and customary form
entered into by the Company and (ii) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
reasonably required under the terms of such underwriting arrangements and (iii)
agrees to pay its pro rata share of all underwriting discounts and commissions
and any expenses in excess of those payable by the Company pursuant to Section 5
below.
F. At any time after the date which is thirty (30) days after the date on
which the Registration Statement is declared effective by the SEC, in connection
with any firm commitment underwritten public offering of the Common Stock (other
than any registration by the Company on Form S-4 or S-8, as the case may be, or
a successor or substantially similar form, of (A) an employee stock option,
stock purchase or compensation plan or of securities issued or issuable pursuant
to any such plan or (B) a dividend reinvestment plan) resulting in gross
proceeds to the Company of at least $10,000,000 led by at least one underwriter
of nationally recognized standing (a "Qualified Public Offering"), the Investor
agrees, if requested in writing by the managing underwriter or the underwriters
administering such offering, not to sell Registrable Securities pursuant to the
Registration Statement in any public sale for a period commencing on the seventh
day prior to the expected effective date of the registration statement covering
such Qualified Public Offering or the date on which the proposed offering is
expected to commence (which date shall be stated in such notice) and ending on
the date specified by such managing underwriter in such written request to the
Investor, which date shall not be later than forty-five (45) days after such
expected date of effectiveness or the commencement of the offering, as the case
may be (the "Underwriters Lock-Up Period"); provided that such underwriters in
good faith determine that the sale of the Registrable Securities under a
Registration Statement would have a material adverse effect on such Qualified
Public Offering; and further, provided that all of the Company's directors,
executive officers and affiliates shall have also agreed to similar
restrictions. The Investor shall be subject to no more than one such restriction
in each twelve (12) month period during the Registration Period.
5. EXPENSES OF REGISTRATION. All reasonable expenses, other than underwriting
discounts and commissions, incurred in connection with registrations, filings or
qualifications pursuant to Sections 2 and 3, including, without limitation, all
SEC, state and stock exchange securities registration, listing and qualification
fees, all expenses incurred in connection with the preparation, printing and
distribution of the Registration Statement and prospectus (including all
expenses incurred with the delivery to the Investor of such number of copies of
any prospectus as the Investor may reasonably request), the fees and
disbursements of counsel for the Company and the independent public accountants
of the Company, shall be borne by the Company (provided that the fees and
disbursements of the counsel selected by the
(Page 107 of 133)
<PAGE>
Investor pursuant to Section 3(H) shall be paid by the Investor), whether or not
the Registration Statement is declared effective by the SEC.
6. INDEMNIFICATION. In the event any Registrable Securities are included in a
Registration Statement under this Agreement:
A. To the extent permitted by law, the Company will indemnify, hold
harmless and defend: (i) the Investor who holds such Registrable Securities,
(ii) the directors, officers, partners, trustees, stockholders, employees,
agents and each person who controls the Investor within the meaning of the 1933
Act or the Securities Exchange Act of 1934, as amended (the "1934 Act"), if any,
(iii) any underwriter (as defined in the 1933 Act) for the Investor (subject to
the Company receiving customary indemnification from any such underwriter), and
(iv) the directors, officers, partners, employees and each person who controls
any such underwriter within the meaning of the 1933 Act or the 1934 Act, if any
(each, an "Indemnified Person"), against any joint or several losses, claims,
damages, liabilities or expenses (collectively, together with actions,
proceedings or inquiries by any regulatory or self-regulatory organization,
whether commenced or threatened, in respect thereof, "Claims") to which any of
them may become subject insofar as such Claims arise out of or are based upon:
(i) any untrue statement or alleged untrue statement of a material fact in a
Registration Statement (or any amendment thereto), including all documents
incorporated therein by reference, or the omission or alleged omission to state
therein a material fact required to be stated or necessary to make the
statements therein not misleading; (ii) any untrue statement or alleged untrue
statement of a material fact contained in any preliminary prospectus if used
prior to the effective date of such Registration Statement, or contained in the
final prospectus (as amended or supplemented, if the Company files any amendment
thereof or supplement thereto with the SEC), including all documents
incorporated therein by reference, or the omission or alleged omission to state
therein any material fact necessary to make the statements made therein, in
light of the circumstances under which the statements therein were made, not
misleading; or (iii) any violation or alleged violation by the Company of the
1933 Act, the 1934 Act, any other securities laws including without limitation,
any state securities laws, or any rule or regulation thereunder relating to the
offer or sale of the Registrable Securities (the matters in the foregoing
clauses (i) through (iii) being, collectively, "Violations"). Subject to the
restrictions set forth in Section 6(C) with respect to the number of legal
counsel, the Company shall reimburse the Indemnified Person, promptly as such
expenses are incurred and are due and payable, for any reasonable legal fees or
other reasonable expenses incurred by them in connection with investigating or
defending any such Claim. Notwithstanding anything to the contrary contained
herein, the indemnification agreement contained in this Section 6(a): (i) shall
not apply to a Claim arising out of or based upon a Violation which occurs in
reliance upon and in conformity with information furnished in writing to the
Company by any Indemnified Person or underwriter for such Indemnified Person
expressly for use in connection with such Registration Statement or preliminary
or final prospectus or any such amendment thereof or supplement thereto; (ii)
shall not apply to amounts paid in settlement of any Claim if such settlement is
effected without the prior written consent of the Company, which consent shall
not be unreasonably withheld; and (iii) with respect to any preliminary
prospectus, shall not inure to the benefit of any Indemnified Person if the
untrue statement or omission or alleged untrue statement or omission of a
material fact contained in the preliminary prospectus was corrected on a timely
basis in the prospectus, as then amended or supplemented, such corrected
prospectus was timely made available by the Company pursuant to Section 3(C)
hereof, and the Indemnified Person was promptly advised in writing not to use
the incorrect prospectus prior to the use giving rise to a Violation and such
Indemnified Person, notwithstanding such advice, used it. Such indemnity shall
remain in full force and effect regardless of any investigation made by or on
behalf of the Indemnified Person and shall survive the transfer of the
Registrable Securities by the Investor.
B. In connection with any Registration Statement in which the Investor is
participating, the Investor agrees to indemnify, hold harmless and defend, to
the same extent and in the same manner set
(Page 108 of 133)
<PAGE>
forth in Section 6(A), the Company, each of its directors, each of its officers
who signs the Registration Statement, each person, if any, who controls the
Company within the meaning of the 1933 Act or the 1934 Act, any underwriter and
any other stockholder selling securities pursuant to the Registration Statement
or any of its directors or officers or any person who controls such stockholder
or underwriter within the meaning of the 1933 Act or the 1934 Act (an
"Indemnified Party"), against any Claim to which any of them may become subject,
under the 1933 Act, the 1934 Act or otherwise, insofar as such Claim arises out
of or is based upon any Violation by the Investor, in each case to the extent
(and only to the extent) that such Violation occurs in reliance upon and in
conformity with written information furnished to the Company by the Investor
expressly for use in connection with such Registration Statement or preliminary
or final prospectus or any such amendment or supplement thereof or thereto; and
subject to Section 6(C) the Investor will reimburse any legal or other expenses
promptly as such expenses are incurred and are due and payable reasonably
incurred by them in connection with investigating or defending any such Claim;
provided, however, that the indemnity agreement contained in this Section 6(B)
shall not apply to amounts paid in settlement of any Claim if such settlement is
effected without the prior written consent of the Investor, which consent shall
not be unreasonably withheld; provided, further, however, that the Investor
shall be liable under this Agreement (including this Section 6(B) and Section 7)
for only that amount as does not exceed the net proceeds to the Investor as a
result of the sale of Registrable Securities pursuant to such Registration
Statement (after deducting the amounts already paid to Indemnified Parties by
the Investor pursuant to this Section 6(B) or Section 7). Such indemnity shall
remain in full force and effect regardless of any investigation made by or on
behalf of such Indemnified Party and shall survive the transfer of the
Registrable Securities by the Investor pursuant to Section 9. Notwithstanding
anything to the contrary contained herein, the indemnification agreement
contained in this Section 6(B) with respect to any preliminary prospectus shall
not inure to the benefit of any Indemnified Party if the untrue statement or
omission of material fact contained in the preliminary prospectus was corrected
on a timely basis in the prospectus, as then amended or supplemented.
C. Promptly after receipt by an Indemnified Person or Indemnified Party
under this Section 6 of notice of the commencement of any action (including any
governmental action), such Indemnified Person or Indemnified Party shall, if a
Claim in respect thereof is to be made against any indemnifying party under this
Section 6, deliver to the indemnifying party a written notice of the
commencement thereof, and the indemnifying party shall have the right to
participate in, and, to the extent the indemnifying party so desires, jointly
with any other indemnifying party similarly noticed, to assume control of the
defense thereof at such indemnifying party's or parties' own expense with
counsel reasonably satisfactory to the Indemnified Person or the Indemnified
Party, as the case may be; provided, however, that an indemnifying party shall
not be entitled to assume such defense and an Indemnified Person or Indemnified
Party shall have the right to retain its own counsel with the fees and expenses
to be paid by the indemnifying party, if, in the reasonable opinion of counsel
retained by the indemnifying party, the representation by such counsel of the
Indemnified Person or Indemnified Party and the indemnifying party would be
inappropriate due to actual or potential conflict of interest under applicable
rules of professional conduct or that there may be legal defenses available to
the Indemnified Party which are different from or in addition to those available
to the indemnifying party. The indemnifying party shall pay for up to one
separate legal counsel for the Indemnified Persons or the Indemnified Parties,
as applicable, and such legal counsel shall be selected by the Investor, if the
Investor is entitled to indemnification hereunder, or the Company, if the
Company is entitled to indemnification hereunder, as applicable. If the
indemnifying party is not entitled to assume the defense of such action or
proceeding, the indemnifying party's counsel shall be entitled to conduct the
indemnifying party's defense, and counsel for the Indemnified Party shall be
entitled to conduct the defense of the Indemnified Party, it being understood
that both such counsel will cooperate with each other to conduct the defense of
such action or proceeding as efficiently as possible. If the indemnifying party
(i) is not so entitled to assume the defense of such action, (ii) does not
assume such defense, after having received the notice referred to in the first
sentence of this paragraph, or (iii) fails to employ counsel that is reasonably
satisfactory to the
(Page 109 of 133)
<PAGE>
Indemnified Party, after having received the notice referred to in the first
sentence of this paragraph, the indemnifying party will pay the reasonable fees
and expenses of counsel for the Indemnified Party. In such event, however, the
indemnifying party will not be liable for any settlement effected without the
written consent of the indemnifying party, which consent shall not be
unreasonably withheld. No indemnifying party shall, without the consent of the
Indemnified Party, consent to entry of any judgment or enter into a settlement
that does not include as an unconditional term thereof the giving by the
claimant or plaintiff to such Indemnified Party of a release from all liability
in respect to such claim or litigation. If an indemnifying party is entitled to
assume, and assumes, the defense of such action or proceeding in accordance with
this paragraph, the indemnifying party shall not be liable for any fees and
expenses of counsel for the Indemnified Party incurred thereafter in connection
with such action or proceeding. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any such
action shall not relieve such indemnifying party of any liability to the
Indemnified Person or Indemnified Party under this Section 6, except to the
extent that the indemnifying party is actually prejudiced in its ability to
defend such action. The indemnification required by this Section 6 shall be made
by periodic payments of the amount thereof during the course of the
investigation or defense, as such expense, loss, damage or liability is incurred
and is due and payable.
D. The indemnity agreements contained herein shall be in addition to (i)
any cause of action or similar right of the Indemnified Party or Indemnified
Person against the indemnifying party or others, and (ii) any liabilities the
indemnifying party may be subject to pursuant to law.
7. CONTRIBUTION. To the extent any indemnification by an indemnifying party is
prohibited or limited by law, the indemnifying party agrees to make the maximum
contribution with respect to any amounts for which it would otherwise be liable
under Section 6 to the fullest extent permitted by law; provided, however, that
(i) no contribution shall be made under circumstances where the maker would not
have been liable for indemnification under the fault standards set forth in
Section 6, (ii) no seller of Registrable Securities guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be
entitled to contribution from any seller of Registrable Securities who was not
guilty of such fraudulent misrepresentation, and (iii) contribution (together
with any indemnification or other obligations under this Agreement) by any
seller of Registrable Securities shall be limited in amount to the net amount of
proceeds received by such seller from the sale of such Registrable Securities
pursuant to such Registration Statement (after deducting amounts already paid to
indemnified parties by the Investor under Sections 6(B) and 7).
8. ASSIGNMENT OF REGISTRATION RIGHTS. This Agreement shall inure to the benefit
of and be binding on the successors, assigns and transferees of each of the
parties, including, without limitation and without the need for an express
assignment, subsequent Investors. If any successor, assignee or transferee of
the Investor shall acquire Registrable Securities, in any manner, whether by
operation of law or otherwise, such Registrable Securities shall be held subject
to all of the terms of this Agreement, and by taking and holding Registrable
Securities such Person shall be conclusively deemed to have agreed to be bound
by all of the terms and provisions hereof.
9. AMENDMENT OF REGISTRATION RIGHTS. Provisions of this Agreement may be amended
and the observance thereof may be waived (either generally or in a particular
instance and either retroactively or prospectively), only with the written
consent of the Company and the holder(s) of a majority in interest of the
Registrable Securities; provided, however, that for purposes of this Agreement,
Registrable Securities that are owned, directly or indirectly, by either the
Company or an affiliate of the Company shall not be deemed outstanding. Any
amendment or waiver effected in accordance with this Section 9 shall be binding
upon the Investor and the Company.
10. MISCELLANEOUS.
(Page 110 of 133)
<PAGE>
A. A person or entity is deemed to be a holder of Registrable Securities
whenever such person or entity owns of record or beneficially such Registrable
Securities. If the Company receives conflicting instructions, notices or
elections from two or more persons or entities with respect to the same
Registrable Securities, the Company shall act upon the basis of an instruction,
notice or election received from the registered owner of such Registrable
Securities and the Company shall have no liability for following instructions
from the registered owner of the Registrable Securities and the registered owner
by providing such instructions agrees to indemnify the Company in accordance
with the provisions of Section 6(B).
B. Any notices required or permitted to be given under the terms hereof
shall be sent overnight by express mail or delivered personally or by courier
(including an overnight delivery service) or by facsimile and shall be effective
upon receipt, if delivered by overnight express mail, personally or by courier
(including an overnight delivery service) or by facsimile, in each case
addressed to a party. The addresses for such communications shall be:
If to the Company:
Anthracite Capital, Inc.
345 Park Avenue, 29th Floor
New York, NY 10154
Attention: Chief Financial Officer
Facsimile: (212) 754-8758
With copy to:
Skadden, Arps, Slate, Meagher & Flom LLP
919 Third Avenue
New York, NY 10022
Attention: Vincent J. Pisano, Esq.
Facsimile: 212-735-2000
If to the Investor: to
RECP II Anthracite, LLC
c/o DLJ Real Estate Capital Partners II, L.P.
277 Park Avenue, 19th Floor
New York, NY 10172
Attention: Andrew P. Rifkin, Phillip C. Tager and William C. Helm
Facsimile: (212) 892-7553
With copy to:
Rogers & Wells LLP
200 Park Avenue
New York, NY 10166
Attention: Robert G. King, Jr.
Facsimile: 212-878-8375
C. Failure of any party to exercise any right or remedy under this
Agreement or otherwise, or delay by a party in exercising such right or remedy,
shall not operate as a waiver thereof.
(Page 111 of 133)
<PAGE>
D. This Agreement shall be enforced, governed by and interpreted in
accordance with the laws of the State of New York without regard to the
principles of conflicts of laws. The parties agree that all disputes between any
of them arising out of, connected with, related to, or incidental to the
relationship established between them in connection with this Agreement, and
whether arising in law or in equity or otherwise, shall be resolved by the
federal or state courts located in New York, New York. Nothing herein shall
affect the right of any party to serve process in any other manner permitted by
law or to commence legal proceedings or otherwise proceed against the other in
any other jurisdiction. In addition, each of the parties hereto consents to
submit to the personal jurisdiction of any federal or state court located in the
state of New York in the event that any dispute arises out of this Agreement.
The parties, for themselves and their respective affiliates, hereby irrevocably
waive all right to a trial by jury in any action, proceeding or counterclaim
(whether based on contract, tort or otherwise) arising out of or relating to the
actions of the parties or their respective affiliates pursuant to this Agreement
in the negotiation, administration, performance or enforcement thereof.
E. This Agreement constitutes the entire agreement among the parties
hereto with respect to the subject matter hereof. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein. This Agreement supersedes all prior agreements and understandings among
the parties hereto with respect to the subject matter hereof.
F. Subject to the requirements of Section 8 hereof, this Agreement shall
inure to the benefit of and be binding upon the successors and assigns of each
of the parties hereto and is not for the benefit of, nor may any provision
hereof be enforced by, any other person.
G. The headings in this Agreement are for convenience of reference only
and shall not limit or otherwise affect the meaning hereof.
H. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original but all of which shall constitute one and the
same agreement. This Agreement, once executed by a party, may be delivered to
the other party hereto by facsimile transmission of a copy of this Agreement
bearing the signature of the party so delivering this Agreement.
I. Each party shall do and perform, or cause to be done and performed, all
such further acts and things, and shall execute and deliver all such other
agreements, certificates, instruments and documents, as the other party may
reasonably request in order to carry out the intent and accomplish the purposes
of this Agreement and the consummation of the transactions contemplated hereby.
J. Each of the parties shall pay its own costs and expenses in connection
with the transactions contemplated hereby, whether such transactions are
consummated, except as otherwise specifically provided herein.
K. The language used in this Agreement will be deemed to be the language
chosen by the parties to express their mutual intent, and no rules of strict
construction will be applied against any party.
L. The Company agrees to indemnify and hold harmless the Investor and its
respective officers, directors, employees and agents for loss, cost or damages
(including reasonable attorney's fees) arising as a result of or related to any
breach or alleged breach by the Company of its obligations under this Agreement
or in connection with the enforcement by the Investor of any of the Company's
obligations hereunder, including the enforcement of this indemnity.
M. No waiver by a party hereto shall be effective unless made in a written
instrument duly executed by the party against whom such waiver is sought to be
enforced, and only to the extent set forth
(Page 112 of 133)
<PAGE>
in such instrument. Neither the waiver by any of the parties hereto of a breach
or a default under any of the provisions of this Agreement, nor the failure of
any of the parties, on one or more occasions, to enforce any of the provisions
of this Agreement or to exercise any right or privilege hereunder, shall
thereafter be construed as a waiver of any subsequent breach or default of a
similar nature, or as a waiver of any such provisions, rights or privileges
hereunder.
N. The parties hereto acknowledge that the obligations undertaken by them
hereunder are unique and that there would be no adequate remedy at law if any
party fails to perform any of its obligations hereunder, and accordingly agree
that each party, in addition to any other remedy to which it may be entitled at
law or in equity, shall be entitled to (i) compel specific performance of the
obligations, covenants and agreements of any other party under this Agreement in
accordance with the terms and conditions of this Agreement and (ii) obtain
preliminary injunctive relief to secure specific performance and to prevent a
breach or contemplated breach of this Agreement in any court of the United
States or any State thereof having jurisdiction.
O. If fulfillment of any provision of this Agreement, at the time such
fulfillment shall be due, shall transcend the limit of validity prescribed by
law, then the obligation to be fulfilled shall be reduced to the limit of such
validity; and if any clause or provision contained in this Agreement operates or
would operate to invalidate this Agreement, in whole or in part, then such
clause or provision only shall be held ineffective, as though not herein
contained, and the remainder of this Agreement shall remain operative and in
full force and effect.
(Page 113 of 133)
<PAGE>
IN WITNESS WHEREOF, the Company and the Investor have caused this
Agreement to be duly executed as of the date first above written.
ANTHRACITE CAPITAL, INC.
By: /s/ Richard M. Shea
--------------------------------
Richard M. Shea
Chief Operating Officer and
Chief Financial Officer
RECP II ANTHRACITE, LLC
By: /s/ Philip C. Tager
--------------------------------
Name: Philip C. Tager
Title: Senior Vice President
ADDRESS: 277 Park Avenue, 19th Floor
New York, NY 10172
(Page 114 of 133)
EXHIBIT 5
ARTICLES SUPPLEMENTARY
OF
ANTHRACITE CAPITAL, INC.
Anthracite Capital, Inc., a Maryland corporation (the "Corporation"),
certifies as follows:
FIRST: Under the authority set forth in Article FIFTH of the charter of
the Corporation, as heretofore amended (which, as hereinafter amended or
restated from time to time is, together with the Articles Supplementary, herein
called the "Articles"), the Board of Directors of the Corporation on September
16, 1999, by resolution duly designated and classified 1,200,000 of the
authorized, but unissued shares of the preferred stock, par value $.001 per
share, of the Corporation as the "10.5% Series A Senior Cumulative Convertible
Redeemable Preferred Stock" (the "Convertible Preferred Stock") and has
authorized the issuance and sale of such shares.
SECOND: The preferences, conversion and other rights, voting powers,
restrictions, limitations as to dividends, qualifications, and other provisions
of shares of Convertible Preferred Stock shall be included as part of Article
FIFTH of the Articles and are as follows:
1. Designation: A series of Preferred Shares, designated as "10.5% Series
A Senior Cumulative Convertible Redeemable Preferred Stock," is hereby
established. The number of shares constituting such series shall be 1,200,000.
2. Voting Rights. Subject to Section 18, the holders of shares of the
Convertible Preferred Stock shall be entitled to vote as a single class with the
holders of Common Stock (defined below) on all matters submitted to a vote of
the holders of Common Stock, and shall be entitled to such number of votes per
share on each matter submitted to a vote of the holders of Common Stock as shall
equal the number of whole shares of Common Stock into which such shares of the
Convertible Preferred Stock are convertible as of the record date for the
determination of stockholders entitled to vote.
3. Dividends.
(a) From the date of original issuance of Convertible Preferred
Stock (the "Issue Date"), the holders of the outstanding shares of Convertible
Preferred Stock shall be entitled to receive, when, as and if declared by the
Board of Directors, out of funds legally available therefor, dividends payable
in cash on each share of Convertible Preferred Stock in an amount per annum
equal to $2.625, of which an amount equal to $.65625 will be payable quarterly.
Dividends shall be cumulative, whether or not declared, on a daily basis from
the Issue Date and shall be payable quarterly in arrears on each of January 5,
April 5, July 5 and October 5 (each a "Dividend Payment Date"). The first
Dividend Payment Date after the Issue Date with respect to the quarter ended
December 31, 1999 shall be January 5, 2000 and the dividend payment on such date
shall be $.21875 per share. If dividends are payable on a date that is not a
business day, payment will be made on the next business day (and without any
interest or other payment in respect of such delay). The amount of the dividends
payable for any period less than a calendar quarter will be computed on the
basis of a 360-day year of 12 30-day months, based on the actual number of days
elapsed. All unpaid dividends will compound on a quarterly basis at a rate of
10.5% per annum. Such dividends shall commence to accrue on each share of
Convertible Preferred Stock from the date of issuance, whether or not authorized
by the Board of Directors, and whether or not there are profits, surplus or
other funds of the Corporation legally available for the payment of dividends,
and such
(Page 115 of 133)
<PAGE>
dividends shall continue to accrue thereon until all amounts payable upon
liquidation or redemption of the Convertible Preferred Stock are paid in full in
cash or upon the conversion of the Convertible Preferred Stock into Common Stock
as provided in Section 5. If the dividends in respect of any previous or current
quarter shall not have been paid, at the rate provided herein, or a sum
sufficient for the payment thereof shall not have been set aside for payment,
any and all arrearages in the payment thereof shall be paid in full before (i)
any dividends or other distributions shall be declared and set aside for payment
in respect of any class or series of capital stock of the Corporation that ranks
junior to or on a parity with (subject to the last clause of this Section 3(a))
the Convertible Preferred Stock with respect to the right to receive dividends
or distributions from the Corporation (including, without limitation, the Common
Stock) or (ii) any class or series of capital stock of the Corporation that
ranks junior to or on a parity with the Convertible Preferred Stock with respect
to the right to receive dividends or distributions from the Corporation or upon
liquidation is redeemed, repurchased or otherwise acquired in whole or in part
by the Corporation for any consideration (or any moneys are paid to or made
available for a sinking fund for the redemption of any such capital stock),
unless at the same time or prior thereto all accrued but unpaid dividends on any
then-outstanding shares of Convertible Preferred Stock for all previous quarters
and for the current quarter shall be declared, set aside and paid in full to the
holders thereof; provided, that if the Corporation pays less than the total
amount of dividends then accrued with respect to the Convertible Preferred Stock
and any class or series of capital stock of the Corporation that ranks on a
parity with the Convertible Preferred Stock, such payment shall be made ratably
among the shares of Convertible Preferred Stock and all classes or series of
capital stock of the Corporation that rank on a parity with the Convertible
Preferred Stock in such manner so that the amount of distributions paid per
share on such shares shall in all cases bear to each other the same ratio that
accrued but unpaid distributions per share on such shares (which shall not
include any accumulation in respect of unpaid distributions for prior
distribution periods if such shares do not have cumulative distribution rights)
bear to each other.
(b) Any distribution payment made on shares of Convertible Preferred
Stock shall first be credited against the earliest accrued but unpaid
distribution due with respect to shares of Convertible Preferred Stock which
remains payable.
4. Liquidation of the Corporation.
(a) Liquidation Preference. Upon any liquidation, dissolution or
winding up of the Corporation, whether voluntary or involuntary, the holders of
the shares of Convertible Preferred Stock shall be entitled to receive, before
any distribution or payment is made on any shares of any class or series of the
capital stock of the Corporation ranking junior to the Convertible Preferred
Stock with respect to the right to receive distributions upon the liquidation,
dissolution or winding up of the Corporation (including, without limitation, the
Common Stock), a per share amount equal to the sum of (i) $27.75 (the
"Liquidation Preference"), and (ii) an amount equal to the amount of all accrued
but unpaid dividends thereon and unpaid interest, computed up to the date that
payment thereof is made available. In the event that there are not sufficient
assets available to permit payment in full of the Liquidation Preference and all
accrued but unpaid dividends thereon and unpaid interest, then such remaining
assets shall be distributed ratably to the holders of shares of the Convertible
Preferred Stock in proportion to the number of shares held by each such holder.
In the event that, upon any such voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, the available assets of the
Corporation are insufficient to pay the amount of the liquidation distributions
on all outstanding shares of Convertible Preferred Stock and the corresponding
amounts payable on all shares of capital stock ranking on a parity with the
Convertible Preferred Stock with respect to distributions upon liquidation,
dissolution or winding up, the holders of shares of Convertible Preferred Stock
and capital stock ranking on a parity with the Convertible Preferred Stock with
respect to distributions upon such event of liquidation, shall share ratably in
any such distribution of assets in proportion to the full liquidating
distributions to which they would otherwise be respectively entitled. Except as
provided in the immediately preceding sentence,
(Page 116 of 133)
<PAGE>
unless and until the Liquidation Preference and such accrued but unpaid
dividends and unpaid interest has been paid in full to the holders of shares of
the Convertible Preferred Stock, no dividends or distributions will be made to
the holders of the Common Stock or any other stock of the Corporation ranking
junior to or on a parity with the Convertible Preferred Stock as to liquidations
and no payments shall be made (or monies put aside) to redeem, repurchase or
otherwise acquire, with respect to any sinking fund by the Corporation, any
class or series of capital stock of the Corporation. The liquidation preference
of the outstanding Convertible Preferred Stock will not be added to the
liabilities of the Corporation for purposes of determining whether under
Maryland law, a distribution by dividend, redemption or otherwise, may be made
to stockholders of the Corporation whose preferential rights upon liquidation,
dissolution or winding up of the affairs of the Corporation, either voluntarily
or involuntarily, are junior to those of holders of Convertible Preferred Stock.
(b) Notice of Liquidation. The Corporation shall provide each holder
of record of shares of the Convertible Preferred Stock with written notice of
any proposed liquidation, dissolution or winding up of the Corporation, which
notice shall set forth the amount of the Liquidation Preference and all accrued
but unpaid dividends thereon and unpaid interest per share and the date on which
payments of the Liquidation Preference and all accrued but unpaid dividends
thereon and unpaid interest shall be payable, not less than 20 days prior to the
payment date stated therein, such notice to be addressed to each such holder at
its address as shown by the records of the Corporation.
5. Conversions.
(a) Automatic Conversion. Beginning on the third anniversary of the
Issue Date, each outstanding share of the Convertible Preferred Stock shall be
converted automatically, without any action on the part of the holder thereof or
the Corporation, and whether or not any of the certificates for such shares are
surrendered to the Corporation, immediately upon the occurrence of the Automatic
Conversion Event, into the number of shares of Common Stock into which such
share of the Convertible Preferred Stock could have been converted as of the
date of the Automatic Conversion Event pursuant to Section 5(b). Upon the
occurrence of an Automatic Conversion Event, the holders of shares of the
Convertible Preferred Stock shall be obligated to surrender to the Corporation
the certificates evidencing such shares at the principal office of the
Corporation (or at such other office or agency of the Corporation as the
Corporation may designate by notice in writing to the holders of the Convertible
Preferred Stock). The Corporation shall then issue and deliver to each such
holder a certificate or certificates for the number of shares of the Common
Stock into which the shares of the Convertible Preferred Stock so surrendered
were convertible on the date of the Automatic Conversion Event.
(b) Right to Convert. Subject to the adjustments contemplated by
Section 6 hereof, shares of the Convertible Preferred Stock may be converted, in
whole or in part, at any time after the issuance thereof until the close of
business on the last Trading Day (defined below) prior to the date fixed for
redemption of such shares or the liquidation, dissolution or winding up of the
Corporation, by the holder thereof, without the payment of any additional
consideration, in the form of shares of fully paid and nonassessable shares of
Common Stock. For purposes hereof, the "Conversion Price" per share shall be
equal to $7.35 per share, subject to adjustment from time to time in accordance
with the provisions of Section 6. Each share of Convertible Preferred Stock
shall be convertible into the number of shares of Common Stock determined by
dividing $25.00 by the Conversion Price (initially equivalent to a conversion
ratio of 3.4014 shares of Common Stock for each Convertible Preferred Share).
Upon conversion, any accrued and unpaid dividends and interest shall be payable
in the form of either shares of Common Stock (valued at the Closing Prices of
the Common Stock on the business day prior to the date of conversion) or cash as
the Corporation may decide.
(Page 117 of 133)
<PAGE>
(c) Exercise of Right to Convert. The right to convert the shares of
the Convertible Preferred Stock into shares of the Common Stock set forth in
Section 5(b) above shall be exercised by the holder of Convertible Preferred
Stock only by surrendering to the Corporation for that purpose the certificate
or certificates representing the shares to be converted at its principal office
(or at such other office or agency of the Corporation as the Corporation may
designate by notice in writing to the holders of the Convertible Preferred
Stock) at any time during its usual business hours, accompanied by written
notice to the Corporation stating that the holder elects to convert all or a
stated number of shares of the Convertible Preferred Stock into shares of the
Common Stock and identifying the name or names (with address and social security
or taxpayer identification number) in which the certificate or certificates for
shares of the Common Stock issuable upon such conversion shall be issued and the
address at which such certificate or certificates should be delivered (each, a
"Conversion Notice").
(d) Issuance of Certificates. As promptly as practicable after the
receipt by the Corporation of a Conversion Notice but in no event later than
five (5) business days thereafter, and the surrender of the certificate or
certificates for the share or shares of Convertible Preferred Stock to be
converted, the Corporation shall issue and deliver, or cause to be issued and
delivered, to the holder at the address specified in the Conversion Notice, (i)
a certificate or certificates evidencing the number of duly authorized and
issued, fully paid and nonassessable shares of the Common Stock to which the
holder of shares of the Convertible Preferred Stock so converted shall be
entitled and (ii) if less than the full number of shares of the Convertible
Preferred Stock evidenced by the surrendered certificate or certificates are to
be converted, a new certificate or certificates, for the number of shares of the
Convertible Preferred Stock evidenced by such surrendered certificate or
certificates less the number of shares of the Convertible Preferred Stock
converted into shares of the Common Stock of the Corporation.
(e) Effect of Conversion.
(1) Any conversion of shares of the Convertible Preferred
Stock made pursuant to Section 5(b) shall be deemed to have been made at the
close of business on the date the Corporation receives the certificate or
certificates evidencing the shares of the Convertible Preferred Stock being
converted and the Conversion Notice, and the rights of the holder thereof with
respect to the shares of the Convertible Preferred Stock being converted shall
cease, except that the holder thereof shall thereafter have and retain (i) the
right to receive shares of the Common Stock (and certificates therefor) in
respect of the converted shares of the Convertible Preferred Stock in accordance
with Section 5(d), and (ii) the right to vote such shares of the Convertible
Preferred Stock in connection with any matters submitted to a vote of the
stockholders or to receive distributions with respect to such shares of
Convertible Preferred Stock, in either case as to which the applicable record
date established by the Board of Directors for determining stockholders entitled
to vote on such matter or entitled to receive distributions, as the case may be,
shall occur prior to the date on which such holder shall have delivered the
Conversion Notice to the Corporation and surrendered to the Corporation the
certificate or certificates evidencing the shares of the Convertible Preferred
Stock to be converted. The Person or Persons entitled to receive the shares of
the Common Stock upon the conversion of the shares of the Convertible Preferred
Stock shall be treated for all purposes as having become the record holder of
such shares of the Common Stock as of the close of business on the date such
shares are converted.
(2) Upon the conversion of any shares of the Convertible
Preferred Stock into shares of the Common Stock of the Corporation, each share
of the Common Stock issued upon the conversion thereof shall be duly authorized,
fully paid and non-assessable.
(Page 118 of 133)
<PAGE>
(f) No Fractional Shares. No fractional shares or scrip representing
fractional shares shall be issued upon conversion of any shares of the
Convertible Preferred Stock into Common Stock. If any fractional share of the
Common Stock would be issuable upon the conversion of any share or shares of the
Convertible Preferred Stock but for the provisions of the first sentence of this
Section 5(f), the Corporation, in lieu of delivering such fractional share,
shall pay to the holder of the shares of the Convertible Preferred Stock
surrendered for conversion an amount in cash equal to the Current Market Price
(as defined below) of such fractional share.
(g) Notwithstanding any other provision hereof, if a conversion of
shares of Convertible Preferred Stock is to be made in connection with a
redemption of such shares, a Change of Control, or the liquidation, dissolution
or winding up of the Corporation, such conversion may, at the election of any
holder tendering Convertible Preferred Stock for conversion, be conditioned upon
the consummation of such event, in which case such conversion shall not be
deemed to be effective until the satisfaction of such conditions.
6. Adjustments to the Conversion Price.
(a) Issuance of Additional Shares. Except as otherwise provided in
Section 6(h), if the Corporation shall issue or sell any shares of the Common
Stock without consideration or for consideration per share less than the Current
Market Price, then, and in each such event, the Conversion Price shall be
adjusted, effective as of the close of business on the date of such issuance or
sale, to an amount determined by multiplying the Conversion Price in effect
immediately prior to such issuance or sale, by the following fraction:
X + Y
-----
X + Z
Where:
"X" equals the sum of (i) the number of shares of Common Stock
issued and outstanding immediately prior to such issuance or
sale, (ii) the number of shares of Common Stock issuable upon
conversion of any shares of the Convertible Preferred Stock
and any other class or series of convertible securities of the
Corporation issued and outstanding immediately prior to such
issuance or sale and (iii) the number of shares of Common
Stock issuable upon the exercise of any options or warrants to
purchase shares of the Common Stock or securities convertible
into or exchangeable for shares of the Common Stock, or other
securities that are convertible into or exchangeable for
shares of the Common Stock, issued and outstanding immediately
prior to such issuance or sale (collectively, the "Common
Stock Equivalents");
"Y" equals the number of shares of Common Stock which the
aggregate consideration received by the Corporation for the
total number of shares of the Common Stock issued without
consideration or for consideration per share less than the
Current Market Price would purchase at the Current Market
Price in effect immediately prior to such issuance or sale;
and
(Page 119 of 133)
<PAGE>
"Z" equals the number of additional shares of Common Stock issued
or deemed issued by the Corporation without consideration or
for consideration per share less than the Current Market
Price.
For the purpose of any computation of the Current Market Price per
share of Common Stock, the "Current Market Price" per share of Common Stock on
any date in question shall be deemed to be the average of the daily Closing
Prices for the five Trading Days ending the earlier of the day in question and,
if applicable, the day before the "ex" date with respect to the issuance or
distribution requiring such computation. For purposes of this paragraph, the
term "ex" date means the first date on which the Common Stock trades regular way
on the New York Stock Exchange (the "NYSE") or on such successor securities
exchange as the Common Stock may be listed or in the relevant market from which
the Closing Prices were obtained without the right to receive such issuance or
distribution.
"Closing Price" of any share of Common Stock on any day shall mean
the last reported sale price regular way on such day or, in case no such sale
takes place on such day, the average of the reported closing bid and asked
prices regular way of such common stock, in each case on the NYSE Composite Tape
or, if the Common Stock is not listed or admitted to trading on such exchange,
on the principal national securities exchange on which the Common Stock is
listed or admitted to trading, or, if not listed or admitted to trading on any
national securities exchange, the average of the closing bid and asked prices as
furnished by any NYSE member firm selected from time to time by the Board of
Directors of the Corporation for that purpose or, if not so available in such
manner, as otherwise determined in good faith by the Board of Directors.
"Trading Day" shall mean a day on which securities are traded on the
national securities exchange or quotation system used to determine the Closing
Price.
(b) Issuance of Options or Convertible Securities, Etc. For purposes
of Section 6(a), in case at any time the Corporation shall in any manner grant,
issue or sell (whether directly or by assumption in a merger or otherwise) any
(i) warrants or other rights to subscribe for or to purchase, or any options for
the purchase of (such warrants, rights or options hereinafter being referred to
as "Options"), any shares of the Common Stock or any stock or other securities
convertible into or exchangeable for shares of the Common Stock (such
convertible or exchangeable stock or securities being hereinafter referred to as
"Convertible Securities"), or (ii) any Convertible Securities, whether or not
such Options or the right to convert or exchange any such Convertible Securities
are immediately exercisable, and the Net Aggregate Consideration Per Share to be
received by the Corporation for the shares of the Common Stock issuable upon
exercise thereof or the exchange or conversion thereof shall be less than the
Current Market Price in effect immediately prior to the time of the granting,
issuance or sale of such Options or Convertible Securities, then the total
maximum number of shares of Common Stock issuable upon (x) the exercise of such
Options or upon conversion or exchange of the total maximum amount of such
Convertible Securities issuable upon the exercise of such options or (y) the
conversion or exchange of all such Convertible Securities, shall be deemed to
have been issued, as of the date of granting, issuance or sale of such Options
or Convertible Securities, for such Net Aggregate Consideration Per Share. No
adjustment to the Conversion Price shall be made upon the actual issuance of
shares of the Common Stock upon (A) the exercise of any Options or upon the
issuance of Convertible Securities upon exercise of any Options (or upon the
actual issuance of any shares of the Common Stock upon conversion or exchange of
Convertible Securities) or (B) conversion or exchange of such Convertible
Securities if an adjustment shall have been made upon the issuance of any such
Options or Convertible Securities.
(c) Net Aggregate Consideration Per Share. For purposes of Section
6(b), the "Net Aggregate Consideration Per Share" with respect to any Options or
Convertible Securities shall mean the amount which is equal to the total amount
of consideration, if any, received by the Corporation for the
(Page 120 of 133)
<PAGE>
issuance of such Options or Convertible Securities, plus the minimum amount of
consideration, if any, payable to the Corporation upon exercise (plus, in the
case of Options to subscribe for or acquire Convertible Securities, the minimum
aggregate of additional consideration, if any, payable to the Corporation upon
the issuance of such Convertible Securities or upon the conversion or exchange
thereof) or upon the conversion or exchange of the Convertible Securities
divided by the aggregate number of shares of the Common Stock that would be
issuable upon (i) the exercise of such Options or upon the conversion or
exchange of such Convertible Securities issuable upon exercise of such Options
or (ii) conversion or exchange of such Convertible Securities.
(d) Consideration for Stock. In cases where any shares of Common
Stock, Options or Convertible Securities shall be issued or sold by the
Corporation for cash, the consideration received therefor shall be deemed to be
the amount received by the Corporation therefor, net of any expenses incurred or
any underwriting commissions or concessions paid or allowed by the Corporation
in connection therewith. In cases where any shares of Common Stock, Options or
Convertible Securities shall be issued or sold for a consideration other than
cash, the amount of the consideration other than cash received by the
Corporation shall be deemed to be the fair value of such consideration as
determined in good faith by the Board of Directors of the Corporation, net of
deduction of any expenses incurred or any underwriting commissions or
concessions paid or allowed by the Corporation in connection therewith. In case
any Options shall be issued in connection with the issue and sale of other
securities of the Corporation, together comprising one integral transaction in
which no specific consideration is allocated to such Options by the parties
thereto, such Options shall be deemed to have been issued for such consideration
as determined in good faith by the Board of Directors of the Corporation.
(e) Change in Option Price or Conversion Rate. Upon the happening of
any of the following events, namely, if the purchase price provided for in any
Option referred to in Section 5(b), the additional consideration, if any,
payable upon the conversion or exchange of any Convertible Securities referred
to in Section 5(b) or (d), or the rate at which such Convertible Securities are
convertible into or exchangeable for Common Stock shall change at any time
(including, but not limited to, changes under or by reason of provisions
designed to protect against dilution), the Conversion Price in effect for the
Convertible Preferred Stock at the time of such event shall forthwith be
readjusted to the Conversion Price which would have been in effect at such time
had such Options or Convertible Securities still outstanding provided for such
changed purchase price, additional consideration or conversion rate, as the case
may be, at the time initially granted, issued or sold, but only if as a result
of such adjustment the Conversion Price then in effect hereunder is thereby
reduced; and on the expiration of any such Option or the termination of any such
right to convert or exchange such Convertible Securities, the Conversion Price
then in effect hereunder shall forthwith be increased to the Conversion Price
which would have been in effect at the time of such expiration or termination
had such Option or Convertible Securities, to the extent outstanding immediately
prior to such expiration or termination, never been issued.
(f) Record Date. In case the Corporation shall take a record of the
holders of its Common Stock for the purpose of entitling them (i) to receive a
dividend or other distribution payable in Common Stock, Options or Convertible
Securities or (ii) to subscribe for or purchase Common Stock, Options or
Convertible Securities, then such record date shall be deemed (but only to the
extent that one of the preceding events actually occurs) to be the date of the
issue or sale of the shares of Common Stock deemed to have been issued or sold
upon the declaration of such dividend or the making of such other distribution
or the date of the granting of such right of subscription or purchase, as the
case may be.
(g) Certain Issuances of Stock Excepted. Anything contained herein
to the contrary notwithstanding, the Corporation shall not be required to make
any adjustment to the Conversion Price in the case of (i) the conversion of
shares of Convertible Preferred Stock into shares of Common Stock, (ii) the
issuance of shares of the Common Stock in connection with the Automatic
Conversion Event, (iii) the
(Page 121 of 133)
<PAGE>
issuance to employees of the Manager of options to purchase up to 500,000 shares
of the Common Stock pursuant to the Corporation's compensatory stock option
plans approved by the Board of Directors at a price not less than 95% of Current
Market Price, or the issuance of shares of the Common Stock upon the exercise of
any of such options or (iv) issuances pursuant to the Corporation's Dividend
Reinvest and Stock Purchase Plan.
(h) Calculation of Adjustments to Conversion Price. The calculation
by the Board of Directors of the Corporation of any adjustment to the Conversion
Price, made in good faith and in accordance with the foregoing provisions of
this Section 6, shall be final and binding on all stockholders of the
Corporation.
(i) Extraordinary Common Stock Events. In the event that the
Corporation shall (i) issue additional shares of the Common Stock or Convertible
Securities as a dividend or other distribution on outstanding shares of the
Common Stock, (ii) subdivide outstanding shares of the Common Stock into a
greater number of shares of the Common Stock, or (iii) combine outstanding
shares of the Common Stock into a smaller number of shares of the Common Stock,
then, and in each such event, the Conversion Price shall, simultaneously with
the happening of each such event, be adjusted by multiplying the Conversion
Price then in effect by a fraction, the numerator of which shall be the number
of shares of the Common Stock outstanding immediately prior to such event and
the denominator of which shall be the number of shares of the Common Stock
outstanding immediately after such event.
7. Other Adjustments.
(a) In the event the Corporation shall make or declare, or fix a
record date for the determination of holders of shares of the Common Stock
entitled to receive, a dividend or other distribution payable in securities of
the Corporation other than shares of the Common Stock or in assets (excluding
cash dividends or distributions), then and in each such event, adequate
provision shall be made so that holders of shares of the Convertible Preferred
Stock shall be entitled to receive upon conversion thereof, in addition to the
number of shares of the Common Stock receivable upon conversion thereof, an
amount per share of Convertible Preferred Stock equal to (i) the aggregate
amount of capital stock, securities or other assets, as the case may be, that
would have been received per share of the Common Stock by holders of the
Convertible Preferred Stock had their shares of Convertible Preferred Stock been
converted into shares of the Common Stock on the record date established by the
Board of Directors of the Corporation for determining stockholders entitled to
receive such dividend or distribution multiplied by (ii) the number of shares of
the Common Stock into which each share of the Convertible Preferred Stock could
have been converted on such record date. No adjustments or provision for
adjustments shall be made to the Conversion Price as a result of any of the
events described in this Section 7(a).
(b) If the shares of the Common Stock issuable upon the conversion
of the shares of the Convertible Preferred Stock shall be changed into the same
or a different number of shares of any other class or classes or series of
capital stock of the Corporation, whether by recapitalization, reclassification
or otherwise, then, and in each such event, adequate provisions shall be made
such that the holder of each share of the Convertible Preferred Stock shall have
the right thereafter to convert such share into the kind and amount of shares of
capital stock and other securities and property receivable upon such
reorganization, reclassification or other change by holders of the number of
shares of the Common Stock into which such share of the Convertible Preferred
Stock could have been converted immediately prior to such recapitalization,
reclassification or other change. No adjustments or provision for adjustments
shall be made with respect to the Conversion Price as a result of any of the
events described in this Section 7(b).
(c) Except as otherwise provided in this Section 7(c), if, at any
time or from time to time, the Corporation shall be a party to a merger or
consolidation of the Corporation with or into another
(Page 122 of 133)
<PAGE>
Person, a share exchange involving the Corporation or shall sell, lease,
exchange or transfer all or substantially all of the property or assets of the
Corporation to any other Person, then, as a condition to the consummation of
such transaction, adequate provision shall be made so that each holder of shares
of the Convertible Preferred Stock shall thereafter be entitled to receive, per
share of Convertible Preferred Stock, upon conversion of the shares of the
Convertible Preferred Stock, (i) the number of shares of capital stock or other
securities or property of the Corporation, or of the successor corporation,
resulting from such merger, consolidation, share exchange or sale, lease,
exchange or transfer, that would have been received per share of Common Stock by
holders of shares of the Convertible Preferred Stock had their shares of
Convertible Preferred Stock been converted into shares of the Common Stock
immediately prior to the consummation of such transaction multiplied by (ii) the
number of shares of the Common Stock into which each share of the Convertible
Preferred Stock could have been converted immediately prior to the consummation
of such transaction. No adjustments or provision for adjustments shall be made
with respect to the Conversion Price as a result of any of the events described
in this Section 7(c).
8. Reports of Adjustments. Upon any adjustment of the Conversion Price or
the number of shares of Common Stock into which the Convertible Preferred Stock
shall be convertible, or upon the occurrence of any other event requiring
adjustments pursuant to Section 7 hereof, then and in each such case, the
Corporation shall give written notice thereof to each holder of shares of the
Convertible Preferred Stock, by first class mail, postage prepaid, addressed to
each such holder at the address of such holder as shown on the books of the
Corporation, which notice shall state the adjusted Conversion Price or the
adjusted number of shares of Common Stock into which the Convertible Preferred
Stock shall be convertible (or which shall describe the new stock, securities,
cash or other property receivable by such holder upon conversion of the
Convertible Preferred Stock), as applicable, resulting from such adjustment and
setting forth in reasonable detail the facts requiring such adjustment and the
method upon which such adjustment was made, and the effective date of such
adjustment.
9. Notices. Whenever (i) the Corporation shall declare any dividend upon
the shares of its capital stock payable in cash or stock or other securities or
make any other distribution to the holders of shares of its capital stock, (ii)
the Corporation shall offer for subscription to the holders of the shares of its
capital stock any additional shares of stock of any class or other rights, (iii)
there shall be any capital reorganization or reclassification of the capital
stock of the Corporation, or a consolidation or merger of the Corporation with
or into, or a sale of all or substantially all its assets to, another entity or
entities, or (iv) there shall be a liquidation, dissolution or winding up of the
Corporation, then, in each such event, the Corporation shall give, by first
class mail, postage prepaid, addressed to each holder of shares of the
Convertible Preferred Stock at the address of such holder as shown on the books
of the Corporation, at least 20 business days prior to the date hereinafter
specified, a notice stating (i) in the case of any dividend or distribution
referred to in clause (i) above, the date on which the books of the Corporation
shall close or a record shall be taken for determining stockholders entitled to
receive such dividend or distribution, (ii) in the case of any reorganization,
reclassification, consolidation, merger, share exchange, sale or liquidation,
dissolution or winding up of the Corporation, the date on which the books of the
Corporation shall close or a record shall be taken for determining stockholders
entitled to vote upon such transaction and the date, if any is to be fixed, on
which the holders of shares of the Common Stock shall be entitled to exchange
such shares for securities or other property in connection with any such
transaction.
10. Stock to be Reserved. The Corporation will at all times reserve and
keep available out of its authorized Common Stock, free from preemptive rights,
solely for the purpose of issuance upon the conversion of the shares of the
Convertible Preferred Stock as herein provided, such number of shares of the
Common Stock as shall then be issuable upon the conversion of all outstanding
shares of the Convertible Preferred Stock.
(Page 123 of 133)
<PAGE>
11. No Reissuance of Converted Shares. Each share of the Convertible
Preferred Stock converted by the holder thereof into shares of the Common Stock
as provided herein shall be canceled and retired and shall not be reissued.
12. Issue Tax. The issuance of certificates for shares of Common Stock
upon conversion of the Convertible Preferred Stock shall be made without charge
to the holders thereof of any issuance or other tax in respect thereof or other
cost incurred by the Corporation in connection with such conversion and the
related issuance of shares of Common Stock; provided, however, that the
Corporation shall not be required to pay any tax which may be payable in respect
of any transfer involved in the issuance and delivery of any certificate in a
name other than that of the holder of the Convertible Preferred Stock which is
being converted.
13. Closing of Books. The Corporation will at no time close its transfer
books against the transfer of any shares of the Convertible Preferred Stock or
of any shares of the Common Stock issued or issuable upon the conversion of the
shares of the Convertible Preferred Stock in any manner which interferes with
the timely conversion of the shares of the Convertible Preferred Stock, except
as may otherwise be required to comply with applicable securities laws.
14. Optional Redemption By the Company.
(a) At any time after the third anniversary of the Issue Date, in
accordance with the notice procedures set forth below, the Corporation shall
have the right, at its sole option and election, to redeem all but not less than
all outstanding shares of Convertible Preferred Stock held by each holder
thereof at a redemption price per share payable in cash equal to the Liquidation
Preference together with accrued but unpaid dividends thereon and unpaid
interest to the date fixed for redemption, provided, that the average Closing
Price per share of the Common Stock for the 90 days immediately prior to the
date of such notice is at least 150% of the applicable Conversion Price on the
date of such notice.
(b) Notice of any redemption pursuant to this Section shall be sent
by or on behalf of the Corporation not less than 10 nor more than 60 business
days prior to the date specified for redemption in such notice, by first class
mail, postage prepaid, to all holders of record of the Convertible Preferred
Stock at their last addresses as they shall appear on the books of the
Corporation; provided, however, that no failure to give such notice or any
defect therein or in the mailing thereof shall affect the validity of the
proceedings for the redemption of any shares of Convertible Preferred Stock
except as to the holder to whom the Corporation has failed to give notice or
except as to the holder to whom notice was defective. In addition to any
information required by law, such notice shall state: (i) the redemption date,
(ii) the redemption price, (iii) the place or places where certificates for such
shares are to be surrendered for payment of the redemption price and (iv) that
dividends on the shares to be redeemed will cease to accumulate on the
redemption date. Subject to Section 4(b), upon the mailing of any such notice of
redemption, the Corporation shall become obligated to redeem at the time of
redemption specified thereon all shares called for redemption.
(c) If notice has been mailed in accordance with Section 14(b) above
and provided that the Corporation pays, or sets aside for payment, the
applicable redemption price, on or before the redemption date specified in such
notice, then, from and after the redemption date, dividends on the shares of the
Convertible Preferred Stock so called for redemption shall cease to accumulate,
and said shares shall no longer be deemed to be outstanding and shall not have
the status of shares of Convertible Preferred Stock, and all rights of the
holders thereof as stockholders of the Corporation (except the right to receive
from the Corporation the redemption price) shall cease. Upon surrender, in
accordance with said notice, of the certificates for any shares so redeemed
(properly endorsed or assigned for transfer, if
(Page 124 of 133)
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the Corporation shall so require and the notice shall so state), such shares
shall be redeemed by the Corporation at the redemption price.
15. Optional Redemption by the Holders.
(a) On the seventh anniversary of the Issue Date and at any time
thereafter, each holder shall have the right to cause the Corporation to redeem
all of its shares of Convertible Preferred Stock then outstanding, at a
redemption price per share payable in cash equal to the Liquidation Preference,
plus accrued but unpaid dividends thereon and unpaid interest to the date fixed
for redemption. To effect such redemption, a redeeming holder shall notify the
Corporation in writing of its election to exercise its redemption right;
provided, that a redeeming holder may only send a redeeming notice on the date
which is five months prior to the seventh anniversary of the Issue Date or at
any time thereafter. Upon receipt of such notice, the Corporation shall promptly
notify the remaining holders of Convertible Preferred Stock and shall set the
applicable redemption date, which redemption date shall be no later than five
months following the Corporation's receipt of such notice. If notice has been
mailed and provided that the Corporation pays, or sets aside for payment, the
applicable redemption price, on or before the redemption date as set by the
Corporation, then, from and after the redemption date, dividends on the shares
of the Convertible Preferred Stock so called for redemption shall cease to
accumulate, and said shares shall no longer be deemed to be outstanding and
shall not have the status of shares of Convertible Preferred Stock, and all
rights of the holders thereof as stockholders of the Corporation (except the
right to receive from the Corporation the redemption price) shall cease. Upon
surrender, in accordance with said notice, of the certificates for any shares so
redeemed (properly endorsed or assigned for transfer, if the Corporation shall
so require and the notice shall so state), such shares shall be redeemed by the
Corporation at the redemption price. Holders electing to have their shares
redeemed pursuant to this Section 15(a) will be required to surrender the
certificate or certificates representing such shares to the Corporation at the
principal office of the Corporation prior to the close of business on the third
business day prior to the date of such redemption.
(b) Upon the occurrence of a Change of Control, each holder will
have the right to require that the Corporation purchase for cash all or a
portion of such holder's Convertible Preferred Stock at a purchase price equal
to the Liquidation Preference, plus accrued but unpaid dividends thereon and
unpaid interest to the date of purchase. As soon as practicable following the
earlier of the date the Corporation obtains actual knowledge that a Change of
Control has occurred or will occur (subject to the Corporation's duties to
maintain the confidentiality of a prospective Change of Control), the
Corporation must send, by first class mail, a notice to each holder of
Convertible Preferred Stock with all relevant information concerning such Change
of Control, which notice shall govern the terms of the purchase of such shares.
Such notice shall state, among other things, the purchase date, which must be no
later than the earlier of ten (10) business days from the date such notice is
mailed or the date of the consummation of a prospective Change of Control, other
than as may be required by law. Such notice shall be mailed by first class mail,
postage prepaid, to all holders of record of the Convertible Preferred Stock at
their last addresses as they shall appear on the books of the Corporation;
provided, however, that no failure to give such notice or any defect therein or
in the mailing thereof shall affect the validity of the proceedings for
repurchase of any shares of Convertible Preferred Stock except as to the holder
to whom the Corporation has failed to give notice or except as to the holder to
whom notice was defective. Each holder who wishes to exercise its right of
redemption pursuant to this Section 15(b) shall notify the Corporation in
writing of its exercise to later than ten (10) business days after receipt of
notice from the Corporation. Holders electing to have shares of Convertible
Preferred Stock purchased pursuant to this Section 15(b) will be required to
surrender the certificate or certificates representing such shares of
Convertible Preferred Stock to the Corporation at the address specified in the
Corporation's notice prior to the close of business on the purchase date. The
Corporation will comply with the requirements of Rule 14e-1 under
(Page 125 of 133)
<PAGE>
the Securities Exchange Act of 1934 and any other securities laws and
regulations thereunder to the extent such laws and regulations are applicable in
connection with the repurchase of Convertible Preferred Stock upon the
occurrence of a Change of Control. To the extent that the provisions of any
securities laws or regulations conflict with this Section 15(b), the Corporation
shall comply with the applicable securities laws and regulations and shall not
be deemed to have breached its obligations under this Section 15(b) by virtue
thereof. Any notice by holders of Convertible Preferred Stock electing
redemption pursuant to this Section 15(b) can be conditioned upon the occurrence
of the Change of Control.
(c) If the funds of the Corporation legally available for redemption
of Convertible Preferred Stock pursuant to Sections 15(a), 15(b) or 18(c) are
insufficient to redeem the total number of outstanding shares of Convertible
Preferred Stock entitled to redemption, the Corporation shall redeem only such
number of shares of Convertible Preferred Stock as may be allowed out of funds
legally available for redemption of such shares. In such event, the Corporation
shall select the shares for redemption on a pro rata basis for each holder based
on its percentage of Convertible Preferred Stock held. At any time thereafter
when additional funds of the Corporation are legally available for the
redemption of Convertible Preferred Stock, such funds will be used at the
earliest permissible time, to redeem the balance of such shares, or such portion
thereof for which funds are then legally available.
16. Rank. The shares of the Convertible Preferred Stock shall rank prior
to all shares of any other class or series of capital stock of the Corporation,
unless such other class or series by its terms ranks senior to the shares of the
Convertible Preferred Stock, with respect to voting powers, preferences and
relative, participating, optional and other special rights of the shares of such
series and the qualifications, limitations and restrictions thereof, including,
without limitation, with respect to the payment of dividends and the
distribution of assets, whether upon liquidation or otherwise.
17. Board Representation.
(a) The holders of the Convertible Preferred Stock shall have the
exclusive right to nominate and elect one member of the Corporation's Board of
Directors on or after the Issue Date at any annual or special meeting of the
stockholders of the Corporation, at any special meeting called by the holders of
at least 10% of the outstanding shares of Convertible Preferred Stock or by a
written consent in lieu of a meeting undertaken by the holders of at least a
majority of the outstanding shares of Convertible Preferred Stock. Such member
shall become a member of the Corporation's Board of Directors and shall (subject
to the provisions of this Section 17) be subject to the same provisions of the
Corporation's Bylaws as other members of such class.
(b) If the Corporation shall fail, (i) within 60 days after any
Dividend Payment Date set forth in Section 3 hereof, to pay in full two
consecutive dividends on the Convertible Preferred Stock, or (ii) to redeem
shares of the Convertible Preferred Stock upon the redeeming holder's election
pursuant to Sections 15 or 18 hereof, then the holders of the Convertible
Preferred Stock shall have the right to elect a majority of the members of the
Board of Directors of the Corporation at any annual or special meeting of
stockholders, at any special meeting called by the holders of record of at least
10% of the Convertible Preferred Stock or by a written consent in lieu of a
meeting undertaken by the holders of at least a majority of the outstanding
shares of Convertible Preferred Stock until (i) all such distributions have been
declared and paid or set aside for payment or (ii) all shares to be redeemed
have been redeemed in full. The term of office of all directors so elected will
terminate with the termination of such voting rights, which will be such time as
(i) all accrued and unpaid dividends are paid in cash or (ii) all shares to be
redeemed have been redeemed in full.
(c) Any director elected by the holders of the Convertible Preferred
Stock may be removed at any time with or without cause by and only by the vote
or written consent of the holders of a
(Page 126 of 133)
<PAGE>
majority of the shares of Convertible Preferred Stock then outstanding at any
annual or special meeting of the stockholders of the Corporation, at any special
meeting called by the holders of at least 10% of the outstanding shares of
Convertible Preferred Stock or by a written consent in lieu of a meeting
undertaken by the holders of at least a majority of the outstanding shares of
Convertible Preferred Stock, and any vacancy occurring by reason of such removal
or by reason of death, resignation or inability to serve of any director so
elected, shall be filled by and only by a vote or written consent of the holders
of a majority of the Convertible Preferred Stock then outstanding at any annual
or special meeting of the stockholders of the Corporation, at any special
meeting called by the holders of at least 10% of the outstanding shares of
Convertible Preferred Stock or by a written consent in lieu of a meeting
undertaken by the holders of at least a majority of the outstanding shares of
Convertible Preferred Stock. Any director so elected under this paragraph shall
serve until his or her successor is duly elected and qualified at or his or her
earlier death, resignation or removal as provided herein.
18. Covenants.
(a) The Corporation may not, without the consent of the holders of a
majority of the shares of Convertible Preferred Stock, (i) issue any class or
series of equity security ranking senior to or on a parity with the Convertible
Preferred Stock as to payment of dividends or as to payments on any liquidation,
dissolution or winding up of the Corporation, (ii) enter into any agreement that
would restrict the Corporation's ability to perform its obligations under
Section 4 of the Securities Purchase Agreement, (iii) amend its charter or
Bylaws in any manner which would materially impair or reduce the rights of the
holders of the Convertible Preferred Stock, (iv) 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), (v) acquire or merge with
or into or consolidate with another entity, the value of whose common stock
equity and equity of securities convertible into common stock equity at a price
lower than the market price of the common stock equity on the date of such
merger or consolidation is greater than $50 million, (vi) enter into any
transaction in excess of $5 million with an Affiliate of the Corporation, except
for any payments made pursuant to the Management Agreement between the
Corporation and BlackRock Financial Management, Inc. in effect on December 2,
1999, (vii) make investments which are not consistent with the Corporation's
stated objective of investing in a diversified portfolio of multifamily,
commercial and residential mortgage loans, mortgage-backed securities and other
real estate-related assets in U.S. and non-U.S. markets, (viii) amend, repeal or
change, directly or indirectly, any of the provisions of these Articles
Supplementary, including the authorization, creation or issuance of additional
or new classes or series of shares of Convertible Preferred Stock, (ix) amend
Article II, Section 4.1.2 or Section 4.2 of the Articles, (x) increase the
number of members of the Corporation's Board of Directors except in connection
with an acquisition of a business, a Change of Control or an investment by a
third party (that is not an affiliate of the Corporation or the Manager) in the
Corporation pursuant to which such third party is granted the right to elect
members to the Board of Directors, or (xi) pay any dividends in the course of
any fiscal year which, in the aggregate, exceed the greater of either the
Corporation's tax basis income or GAAP income for such year (except to the
extent necessary to preserve the Corporation's election to be subject to tax as
a real estate investment trust within the meaning of Sections 856-860 of the
Code (as hereinafter defined).
(b) As long as any shares of Convertible Preferred Stock are
outstanding, the Corporation shall comply with all of the following financing
requirements:
The ratio of the Corporation's Indebtedness to the
Corporation's book net worth (calculated in accordance with generally accepted
accounting principles ("GAAP")) shall not exceed the lesser of (x) 4.5 to 1.0
and (y) the Weighted Average Leverage Limit, calculated on the last day of each
(Page 127 of 133)
<PAGE>
calendar quarter. "Weighted Average Leverage Limit" shall be determined by
taking the sum of (A), (B) and (C), described below, and dividing that result by
the aggregate principal balance of the Corporation's assets.
(A) The product of (i) two, and (ii) the book value of
the Corporation as determined under GAAP (the "GAAP Book Value") of
Corporation's assets which are unrated securities, non-securitizable loans and
mezzanine loans.
(B) The product of (i) three, and (ii) the GAAP Book
Value of Corporation's assets which are non-investment grade securities and
securitizable whole loans.
(C) The product of (i) eight, and (ii) the GAAP Book
Value of Corporation's assets which are investment grade securities;
The classification of the above referenced assets shall be made by
the Corporation.
(c) In the event that the Corporation fails to comply with any of
the covenants listed in Section 18 (a) or (b), each holder, subject to the
notification provisions and the Corporation's opportunity to remedy such breach
set forth below, will have the right to cause the Corporation to redeem all of
its shares of Convertible Preferred Stock at a redemption price per share
payable in cash equal to 110% of the Liquidation Preference together with
accrued but unpaid dividends thereon and unpaid interest to the date fixed for
such redemption ("Premium Redemption Price"). To effect such a redemption, a
redeeming holder shall notify the Corporation in writing of the Corporation's
breach of the covenant(s) set forth in Section 18 (a) or (b) and of its election
to exercise its redemption right ("Notice of Breach"). The Corporation shall
have the opportunity to remedy such breach for a period of 150 days following
the Corporation's receipt of the Notice of Breach. If the Corporation fails to
remedy such breach during the 150 days following the receipt of the Notice of
Breach, the Corporation shall redeem the electing holders' shares of Convertible
Preferred Stock at the Premium Redemption Price not later than the 150th day
following the Corporation's receipt of the Notice of Breach. Upon receipt of the
Notice of Breach, the Corporation shall promptly notify the remaining holders of
Convertible Preferred Stock. If notice has been mailed and provided that the
Corporation pays, or sets aside for payment, the applicable redemption price, on
or before the redemption date as set by the Corporation, then, from and after
the redemption date, dividends on the shares of the Convertible Preferred Stock
so called for redemption shall cease to accumulate, and said shares shall no
longer be deemed to be outstanding and shall not have the status of shares of
Convertible Preferred Stock, and all rights of the holders thereof as
stockholders of the Corporation (except the right to receive from the
Corporation the redemption price) shall cease. Upon surrender, in accordance
with said notice, of the certificates for any shares so redeemed (properly
endorsed or assigned for transfer, if the Corporation shall so require and the
notice shall so state), such shares shall be redeemed by the Corporation at the
redemption price. Holders electing to have their shares redeemed pursuant to
this Section 18(c) will be required to surrender the certificate or certificates
representing such shares to the Corporation at the principal office of the
Corporation prior to the close of business on the date of such redemption.
19. Right of First Offer.
(a) In the event a holder of Convertible Preferred Stock (the
"Selling Holder") intends to sell all or any portion of its shares (the "Offered
Shares"), it will first notify the Corporation in writing (the "Offer Notice").
(Page 128 of 133)
<PAGE>
(b) The Offer Notice shall contain a written offer (the "Offer") to
sell the Offered Shares to the Corporation stating the price (the "Offer Price")
and the other material terms upon which the Selling Holder desires to sell the
Offered Shares. The Corporation may accept the Offer by giving written notice
thereof to the Selling Holder within twenty-five (25) days of receipt of the
Offer Notice (the "Acceptance"). The Corporation and the Selling Holder must
then close on such transaction within twenty-five (25) days of receipt of the
Acceptance, time being of the essence.
(c) Subject to paragraph (d) below, if the Offer contained in the
Offer Notice is not accepted in its entirety by the Corporation in accordance
with this Section, the Selling Holder may sell the Offered Shares to any other
Person (a "Third Party") without further restriction; provided, that (i) such
sale occurs within six months from the earlier of the affirmative rejection of
the Offer Notice by the Corporation and the expiration of the 25-day period in
which the Corporation may accept the Offer Notice, (ii) the purchase price to be
paid by such Third Party shall be an amount equal to or greater than 92.5% of
the Offer Price payable by such Third Party in cash and (iii) the non-price
related terms shall be substantially similar to the Offer. After such six month
period the provisions of this Section will apply again.
(d) In connection with any permitted sale by a Selling Holder to a
Third Party, in accordance with the provisions of this Section, the Corporation
shall provide all information such Third Party reasonably requests to make its
investment decision and the officer and directors of the Corporation and the
Manager shall make themselves reasonably available to answer questions and/or to
meet with such Third Party to help promote the sale of the Offered Shares.
20. Preemptive Rights.
(a) The Corporation shall not issue any New Securities (as defined
below) unless it first delivers to each holder of Convertible Preferred Stock
(each such holder being referred to in this Section 20 as a "Holder") a written
notice (the "Notice of Proposed Issuance") specifying the type and total number
of such New Securities that the Corporation then intends to issue (the "Offered
New Securities"), all of the terms, including the price upon which the
Corporation proposes to issue the Offered New Securities and stating that the
Holders shall have the right to purchase the Offered New Securities in the
manner specified in this Section 20 for the same price per share and in
accordance with the same terms and conditions specified in such Notice of
Proposed Issuance.
(b) During the 30 consecutive day period commencing on the date the
Corporation delivers to all of the Holders the Notice of Proposed Issuance (the
"Exercise Period"), the Holders shall have the option to purchase a portion of
the Offered New Securities at the same price per share and upon the same terms
and conditions specified in the Notice of Proposed Issuance. Each Holder
electing to purchase Offered New Securities must give written notice of its
election to the Corporation prior to the expiration of the Exercise Period.
(c) Each Holder shall have the right to purchase that number of the
Offered New Securities as shall be equal to the number of the Offered New
Securities multiplied by a fraction, the numerator of which shall be the number
of shares of Common Stock then held by such Holder plus all shares of Common
Stock issuable upon conversion of all Convertible Securities then held by such
Holder and the denominator of which shall be the aggregate number of shares of
Common Stock Deemed Outstanding (as defined below). The amount of such Offered
New Securities that each Holder is entitled to purchase under this Section 20
shall be referred to as its "Proportionate Share."
(d) If all of the Offered New Securities have not been purchased by
the Holders pursuant to Section 20(a)-(c) hereof, then the Corporation shall
have the right, until the expiration of 180
(Page 129 of 133)
<PAGE>
consecutive days commencing on the first day immediately following the
expiration of the Exercise Period, to issue the Offered New Securities at not
less, and on terms no more favorable to the purchasers thereof, than the price
and terms specified in the Notice of Proposed Issuance. If for any reason the
Offered New Securities are not issued within such period and at such price and
on such terms, the right to issue in accordance with the Notice of Proposed
Issuance shall expire and the provisions of this Section 20 shall continue to be
applicable to the Offered New Securities.
21. Legends. Certificates representing the Convertible Preferred Stock
shall bear the following legend:
"The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended, or the securities laws
of any state of the United States. The securities represented hereby may not be
offered, sold, or otherwise transferred or assigned in the absence of an
effective registration statement for the securities under the applicable
securities laws or unless sold pursuant to Rule 144 under said act.
Notwithstanding the foregoing, the securities may be pledged as collateral in
connection with a bona fide margin account or other lending arrangement."
The legend set forth above shall be removed and the Corporation
shall issue a certificate without such legend to the holder of any Convertible
Preferred Stock upon which it is stamped, if, unless otherwise required by
applicable state securities laws, (a) such Convertible Preferred Stock is sold
pursuant to an effective registration statement filed under the Securities Act
of 1933 or otherwise may be sold pursuant to Rule 144 of the Securities Act of
1933 without any restriction as to the number of securities as of a particular
date that can then be immediately sold, or (b) such holder provides the
Corporation with reasonable assurances that such Convertible Preferred Stock can
be sold pursuant to Rule 144 of the Securities Act of 1933. The holder agrees to
sell all Convertible Preferred Stock, including those shares represented by a
certificate(s) from which the legend has been removed, in compliance with
applicable prospectus delivery requirements, if any.
Until (i) the Board of Directors of the Corporation determines it is
no longer in the best interests of the Corporation to attempt to, or continue
to, qualify as a REIT and (ii) there is an affirmative vote of not less than
two-thirds of all of the votes ordinarily entitled to be cast in the election of
directors, voting together as a single class approving the determination of the
Board of Directors set forth in clause (i) above, the Convertible Preferred
Stock shall bear a legend in substantially the following form (and a
stop-transfer order may be placed against transfer of the certificates for such
Convertible Preferred Stock):
"The securities represented by this certificate are subject to
restrictions on transfer for the purpose of the Company's election to be subject
to tax as a real estate investment trust under the Internal Revenue Code of
1986, as amended (the "Code"). Subject to the exemptions granted (i) under the
Securities Purchase Agreement dated December 2, 1999, between the Company and
RECP II Anthracite, LLC, a Delaware limited liability company ("RECP II"), a
wholly owned subsidiary of DLJ Real Estate Capital Partners II, L.P. ("RECP")
and that certain letter from the Company to RECP II and RECP dated December 2,
1999 regarding such exemptions or (ii) pursuant to Section 6.1.7 of the Articles
of Incorporation of the Company, no Person may (i) Beneficially Own or
Constructively Own shares of Common Stock in excess of 9.8% of the number of
outstanding shares of Common Stock, (ii) Beneficially Own or Constructively Own
shares of any class or series of Preferred Stock in excess of 9.8% of the number
of outstanding shares of such class or series of Preferred Stock, (iii)
beneficially own shares of Equity Stock that would result in the shares of
Equity Stock being Beneficially Owned by fewer than 100 Persons
(Page 130 of 133)
<PAGE>
(determined without reference to any rules of attribution), or (iv) Beneficially
Own or Constructively Own shares of Equity Stock that would result in the
Company being "closely held" within the meaning of Section 856(h) of the Code.
Any Person who attempts to Beneficially Own or Constructively Own shares of
Equity Stock in excess of the above limitations must immediately notify the
Company in writing. If the restrictions above are violated, the shares of Equity
Stock represented hereby will be transferred automatically and by operation of
law to a Trust and shall be designated Shares-in-Trust. All capitalized terms in
this legend have the meanings defined in the Company's Articles of Amendment and
Restatement filed with the Department of Assessments and Taxation of the State
of Maryland on March 20, 1998, as the same may be further amended from time to
time, a copy of which, including the restrictions on transfer, will be sent
without charge to each stockholder who so requests."
22. Lost or Damaged Certificates. Upon receipt by the Corporation of
evidence of the loss, theft, destruction or mutilation of any Convertible
Preferred Stock Certificates representing shares of Convertible Preferred Stock,
and (in the case of loss, theft or destruction) of indemnity reasonably
satisfactory to the Corporation, and upon surrender and cancellation of the
Preferred Stock Certificate(s), if mutilated, the Corporation shall execute and
deliver new Preferred Stock Certificate(s) of like tenor and date.
23. Certain Definitions. The following terms, whenever used in capitalized
form herein without definition, shall have the meanings indicated below:
"Affiliate" means a Person who directly or indirectly through one or more
intermediaries controls, or is controlled by, or is under common control with,
the respective Person. The term "control" means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of a Person, whether through the ownership of voting securities, by
contract or otherwise.
"Automatic Conversion Event" shall mean the occurrence on or after the
date that is the third anniversary of the Issue Date of the closing of a public
offering of Common Stock pursuant to a registration statement filed by the
Corporation with the Securities and Exchange Commission pursuant to which (i)
the aggregate offering price is not less than $10 million and (ii) the offering
price per share is at least 150% of the then applicable Conversion Price,
subject to adjustments pursuant to Section 6 hereof.
"Change of Control" shall mean either (i) the acquisition by a person or
group of persons (as defined in Section 13(d)(3) of the Securities Exchange Act
of 1934) of the right to elect a majority of the members of the Corporation's
Board of Directors, (ii) a change in the Manager, or (iii) a sale of all or
substantially all of the assets of the Corporation.
"Common Stock" shall mean and include the authorized Common Stock, $.001
par value per share, as constituted as of the date hereof and any other capital
stock of any class of the Corporation hereafter authorized which shall not be
limited to a fixed sum or percentage of par value in respect of the rights of
the holders thereof to participate in dividends or in the distribution of assets
upon liquidation or dissolution of the Corporation.
"Conversion Notice" shall have the meaning set forth in Section 4(c).
"Manager" shall mean BlackRock Financial Management Inc., ("BlackRock").
"New Securities" shall mean (a) any shares of equity securities of the
Corporation, (b) or any rights, options, or warrants to purchase such equity
securities, and (c) securities of any type whatsoever that are, or may become,
convertible into, exercisable, exchangeable, or that carry rights to subscribe
for
(Page 131 of 133)
<PAGE>
any such equity securities, in each case with the exception of any securities
issued in connection with (i) a public offering registered under the Securities
Act of 1933, as amended or (ii) issuances to employees of the Manager pursuant
to the Corporation's compensatory stock option plans approved by the Board of
Directors.
"Person" shall mean any individual, corporation, partnership, limited
liability company, limited liability partnership, trust, unincorporated
association or other entity.
"Securities Purchase Agreement" shall mean that certain Securities
Purchase Agreement dated as of December 2, 1999, with respect to the issuance
and sale of the Convertible Preferred Stock, by and between the Corporation and
the Buyer named as such therein, as the same may be amended from time to time.
"Shares of Common Stock Deemed Outstanding" shall mean, at any given time,
the number of shares of Common Stock actually outstanding at such time, plus the
number of shares of Common Stock issuable upon conversion in full of all
Convertible Securities whether or not the Convertible Securities are convertible
into, exercisable or exchangeable for shares of Common Stock at such time.
(Page 132 of 133)
<PAGE>
IN WITNESS WHEREOF, the Corporation has caused these Articles
Supplementary to be signed in its name and on its behalf on this second day of
December, 1999 by its Vice President who acknowledges that these Articles
Supplementary are the act of the Corporation and the best of his knowledge,
information and belief and under penalties for perjury, all matters and facts
contained in these Articles Supplementary are true in all material respects.
ATTEST ANTHRACITE CAPITAL, INC.
(SEAL)
By: /s/ Rob Friedberg By: /s/ Chris Milner
-------------------------------- -------------------------------------
Secretary Name: Chris Milner
Title: Vice President
(Page 133 of 133)
