SECURITIES PURCHASE AGREEMENT
SECURITIES
PURCHASE AGREEMENT (this "Agreement"),
dated
as of April 4, 2008, by and between Anthracite Capital, Inc., a Maryland
corporation, with headquarters located at 00 Xxxx 00xx
Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000 (the "Company"),
and
RECP IV Cite CMBS Equity, L.P., a Delaware limited partnership (the "Buyer")
and
subsidiary of DLJ Real Estate Capital Partners IV, 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 Section
4(2) of the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder (the "1933
Act"),
including, as applicable, the "safe harbor" provisions of Rule 506 under
Regulation D ("Regulation
D")
as
promulgated by the United States Securities and Exchange Commission (the
"SEC")
under
the 1933 Act;
B. The
Board
of Directors of the Company has authorized (i) a new series of preferred stock,
$0.001 par value per share, designated as 12% Series E-1 Cumulative Redeemable
Convertible Preferred Stock (the "Series
E-1 Preferred Stock"),
having the rights, preferences and privileges to be set forth in the Articles
Supplementary to the charter of the Company (the "Series
E-1 Articles
Supplementary")
attached hereto as Exhibit
A,
(ii) a
new series of preferred stock, $0.001 par value per share, designated as 12%
Series E-2 Cumulative Redeemable Convertible Preferred Stock (the "Series
E-2 Preferred Stock"),
having the rights, preferences and privileges to be set forth in the Articles
Supplementary to the charter of the Company (the "Series
E-2 Articles
Supplementary")
attached hereto as Exhibit
B,
and
(iii) a new series of preferred stock, $0.001 par value per share, designated
as
12% Series E-3 Cumulative Redeemable Convertible Preferred Stock (the
"Series
E-3 Preferred Stock"),
having the rights, preferences and privileges to be set forth in the Articles
Supplementary to the charter of the Company (the "Series
E-3 Articles
Supplementary"
and,
together with the Series E-1 Articles Supplementary and the Series E-2 Articles
Supplementary, the "Articles
Supplementary")
attached hereto as Exhibit
C;
C. The
Buyer
desires to purchase and the Company desires to issue and sell, upon the terms
and conditions set forth in this Agreement, (i) 23,375 shares of the Series
E-1
Preferred Stock (together with any preferred stock issued in replacement thereof
or otherwise with respect thereto in accordance with the terms thereof, the
"Series
E-1 Preferred
Shares"),
(ii)
23,375 shares of the Series E-2 Preferred Stock (together with any preferred
stock issued in replacement thereof or otherwise with respect thereto in
accordance with the terms thereof, the "Series
E-2 Preferred
Shares"),
(iii)
23,375 shares of the Series E-3 Preferred Stock (the "Series
E-3 Preferred
Shares"
and,
together with the Series E-1 Preferred Shares and the Series E-2 Preferred
Shares, the "Preferred
Shares")
and
(iv) 3,494,021 shares (the "Common
Shares"
and,
together with the Preferred Shares, the "Shares")
of the
Company's common stock, $0.001 par value per share ("Common
Stock")
for an
aggregate purchase price of ninety-three million and five hundred thousand
dollars ($93,500,000) (the "Purchase
Price");
a
summary of the terms of the Shares is set forth in the Letter of Intent executed
by the Company and RECP on March 28, 2008;
D. The
Preferred Shares shall have the rights, terms and conditions, and are
convertible into shares of Common
Stock,
as set
forth in the Articles Supplementary;
E. On
the
Closing Date (as defined below), the parties hereto will execute and deliver
a
Registration Rights Agreement (the "Registration
Rights Agreement"),
substantially in the form attached hereto as Exhibit
D,
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; and
F. On
the
Closing Date, the Company will deliver to the Buyer a certificate executed
by
the Secretary of the Company attaching the resolution of the Board of Directors
of the Company granting an exemption to the Buyer from the ownership limit
set
forth in Section 6.1.2(a) of the Company's charter.
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 THE SHARES.
A. PURCHASE
OF THE
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 the
Preferred Shares and the Common 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, warranties and covenants set forth or referred to herein,
the Buyer agrees to pay the Purchase Price to the Company, which shall be
$23,375,000 for the Series E-1 Preferred Shares, $23,375,000 for the Series
E-2
Preferred Shares, $23,375,000 for the Series E-3 Preferred Shares and
$23,375,000 for the Common 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 one (1) business day prior to the Closing
Date, against delivery of duly executed certificates registered in the name
of
the Buyer and in the form agreed upon by the Company and the Buyer representing
the 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 Shares pursuant to this Agreement (the "Closing
Date")
shall
be 9:00 a.m. EDT on April 4, 2008 (the "Closing").
2.
BUYER'S
REPRESENTATIONS AND WARRANTIES. The Buyer represents and warrants to
the Company
that:
A. INVESTMENT
PURPOSE. The
Buyer
is purchasing the 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 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 to the extent such a
pledge is in accordance with applicable laws, including the 1933 Act, and does
not affect the exemption from registration afforded to the offer and sale of
the
Securities described herein.
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B. ACCREDITED
INVESTOR STATUS. RECP owns greater than 95% of the equity interests of the
Buyer
and RECP is an institutional "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.
The Buyer and its advisors 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 have been afforded the opportunity
to
ask questions of and receive answers from 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 represents that it has the financial sophistication to evaluate
the risks and merits of, and make an informed decision with regard to, an
investment in the Company and the Securities. The Buyer understands that its
investment in the Securities involves a significant degree of risk and that
it
is able to bear the economic risk of an investment in the
Securities.
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.
3
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 sold or transferred unless (A)(1)
the Securities are sold pursuant to an effective registration statement under
the 1933 Act or (2) an exemption from registration under the 1933 Act or any
applicable state securities laws is available and (B) the Securities are sold
or
transferred in compliance with certain provisions of the Company's Articles
of
Amendment and Restatement, as amended (the "Articles"),
relating to the Company's election to be organized and conduct its operations
in
a manner intended to qualify 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 in the Company's reports and filings available on the SEC's Electronic
Data Gathering, Analysis, and Retrieval ("XXXXX")
system, including the Company's Annual Report on Form 10-K for the year ended
December 31, 2007, filed with the SEC on March 13, 2008; (ii) any sale of such
Securities made in reliance on Rule 144 promulgated under the 1933 Act (or
a
successor rule) ("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 0000 Xxx) may require
compliance with some other exemption under the 1933 Act or the rules and
regulations of the SEC promulgated thereunder; and (iii) except as provided
in
the Registration Rights Agreement, 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 to
the
extent such a pledge is in accordance with applicable laws, including the 1933
Act, and does not affect the exemption from registration afforded to the offer
and sale of the Securities described herein.
G. LEGENDS.
The Buyer understands that the 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):
"THIS
SECURITY HAS BEEN ACQUIRED FOR INVESTMENT AND WITHOUT A VIEW TO DISTRIBUTION
AND
HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE
"ACT"),
OR UNDER STATE SECURITIES LAWS. NO TRANSFER, SALE, ASSIGNMENT, PLEDGE,
HYPOTHECATION OR OTHER DISPOSITION OF THIS SECURITY OR ANY INTEREST OR
PARTICIPATION THEREIN MAY BE MADE EXCEPT (A) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT OR (B) PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS AND, IN THE
CASE
OF CLAUSE (B), IF REQUESTED BY THE ISSUER, UNLESS THE ISSUER RECEIVES AN OPINION
OF COUNSEL IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE ISSUER TO THE
EFFECT THAT REGISTRATION IS NOT REQUIRED UNDER THE ACT AND APPLICABLE STATE
SECURITIES LAWS."
Within
three business days of the Company's receipt of an instruction from a holder
to
remove the legend set forth above, 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 and its transfer agent with documentation and/or assurances
reasonably satisfactory to each such party 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.
4
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 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 Shares):
"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 APRIL
4,
2008, BETWEEN THE COMPANY AND RECP
IV CITE CMBS EQUITY, L.P.,
A DELAWARE
LIMITED PARTNERSHIP
AND SUBSIDIARY
OF DLJ REAL ESTATE CAPITAL PARTNERS IV, L.P., 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 FOR THE BENEFIT OF ONE
OR MORE CHARITABLE BENEFICIARIES.
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."
5
H. OWNERSHIP
LIMITATIONS. The
Buyer
understands, subject to the Exemption, 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 Company's reports and filings available on the SEC's XXXXX
system, including the Company's Annual Report on Form 10-K for the year ended
December 31, 2007, filed with the SEC on March 13, 2008.
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 parties 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 does not, and the
execution and performance of the Registration Rights Agreement will not,
conflict with any agreement to which the Buyer is a party or is bound thereby,
any court order or judgment addressed to the Buyer, or the constituent documents
of the Buyer.
K. RESIDENCY;
ORGANIZATION. The Buyer is a resident of the jurisdiction set forth immediately
below such Buyer's name on the signature pages hereto. The Buyer is validly
existing and in good standing (to the extent the concept exists) as a limited
partnership under laws of the jurisdiction of its organization.
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:
6
A. NO
REGISTRATION.
Assuming the accuracy of the representations and warranties of the Buyer
contained in Section 2 and its compliance with the agreements set forth therein,
it is not necessary, in connection with the issuance and sale of the Shares
to
the Buyer in the manner contemplated by this Agreement, to register the Shares
under the 1933 Act.
B. NO
INTEGRATION.
None of
the Company or any of its subsidiaries has, directly or through any agent,
sold,
offered for sale, solicited offers to buy or otherwise negotiated in respect
of,
any "security" (as defined in the 0000 Xxx) that is or will be integrated with
the sale of the Shares in a manner that would require registration under the
1933 Act of the Shares.
C. RULE
144A.
No
securities of the same class (within the meaning of Rule 144A(d)(3) under the
0000 Xxx) as the Preferred Shares are listed on any national securities exchange
registered under Section 6 of the 1934 Act, or quoted on an automated
inter-dealer quotation system.
D. EXCLUSIVE
AGREEMENT.
The
Company has not paid or agreed to pay to any person any compensation for
soliciting another person to purchase any securities of the Company in
connection with the offer and sale of the Shares by the Buyer (except as
contemplated in this Agreement).
E. AUTHORIZATION
OF THE PURCHASE AGREEMENT.
This
Agreement has been duly authorized, executed and delivered by the Company.
This
Agreement constitutes a valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms, subject 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.
F. AUTHORIZATION
OF THE SHARES.
The
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 the issuance of such shares will not be subject
to
any preemptive or similar rights. The filing of the Articles Supplementary
has
been duly authorized.
G. AUTHORIZATION
OF THE CONVERSION SHARES.
The
Conversion Shares have been duly authorized and reserved and, when issued upon
conversion of the Preferred Shares in accordance with the terms thereof, will
be
validly issued, fully paid and non-assessable, and the issuance of such shares
will not be subject to any preemptive or similar rights.
H. AUTHORIZATION
OF THE REGISTRATION RIGHTS AGREEMENT.
The
Registration Rights Agreement has been duly authorized, executed and delivered
by the Company and is a valid and binding agreement of, the Company, enforceable
against the Company in accordance with its terms, (i) subject 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 and (ii) subject to applicable laws affecting the
enforceability of provisions imposing a payment obligation pending the ability
of the Company to comply timely with its registration obligations under the
Registration Rights Agreement. Except as described in the 1934 Act Reports
(as
defined below), the Company has not granted or agreed to grant to any person
or
entity any rights (including "piggy-back" registration rights) to have any
securities of the Company registered with the SEC or any other governmental
authority that have not expired or been satisfied or waived.
7
I. NO
MATERIAL ADVERSE CHANGE.
Except
as otherwise disclosed in the Company's reports (the "1934
Act Reports")
filed
with the SEC pursuant to Section 13 or 15 of the Securities Exchange Act of
1934, as amended, and all of the rules and regulations promulgated thereunder
(the "1934
Act")
and
the other filings of the Company available on XXXXX (together with the 1934
Act
Reports, the "SEC
Reports"):
(i)
there has been no material adverse change, or any development that could
reasonably be expected to result in a material adverse change, in the condition
(financial or otherwise), or in the results of operations, properties, business
or prospects of the Company and its subsidiaries, considered as one entity
(a
"Material
Adverse Change");
(ii)
the Company and its subsidiaries, considered as one entity, have not incurred
any material liability or obligation, indirect, direct or contingent, nor
entered into any material transaction or agreement, except the Management
Agreement between the Company and BlackRock Financial Management, Inc.; and
(iii) there has been no dividend or distribution of any kind declared, paid
or
made by the Company or, except for dividends paid by the Company or other
subsidiaries on any class of capital stock or repurchase or redemption by the
Company or any of its subsidiaries of any class of capital stock.
J. PREPARATION
OF THE FINANCIAL STATEMENTS.
The
financial statements included in the Company's Annual Report on Form 10-K for
the most recent fiscal year present fairly the consolidated financial position
of the Company and its consolidated subsidiaries as of and at the dates
indicated and the results of their operations and cash flows for the periods
specified. Such financial statements comply as to form in all material respects
with the applicable accounting requirements of Regulation S-X and have been
prepared in conformity with generally accepted accounting principles as applied
in the United States applied on a consistent basis throughout the periods
involved, except as may be expressly stated in the related notes
thereto.
K. INCORPORATION
AND GOOD STANDING OF THE COMPANY AND ITS SUBSIDIARIES.
Each of
the Company and its subsidiaries has been duly organized, is validly existing
and in good standing (to the extent the concept exists) as a corporation or
other business entity under the laws of its jurisdiction of organization and
is
duly qualified to do business and in good standing as a foreign corporation
or
other business entity in each jurisdiction in which its ownership or lease
of
property or the conduct of its businesses requires such qualification, except,
in each case, where the failure to be so qualified or in good standing (or
the
failure of a subsidiary that is not a Significant Subsidiary (as defined below)
to be duly organized or validly existing) could not, individually or in the
aggregate, reasonably be expected to have a material adverse effect on the
condition (financial or otherwise), results of operations, properties, business
or prospects of the Company and its subsidiaries taken as a whole (a
"Material
Adverse Effect");
each
of the Company and its subsidiaries has all power and authority necessary to
own
or hold its properties and to conduct the businesses in which it is engaged
and,
in the case of the Company, to enter into and perform its obligations under
this
Agreement except where the failure to have such power or authority could not,
in
the aggregate, reasonably be expected to have a Material Adverse Effect. Exhibit
21 to the Company's Annual Report on Form 10-K for the most recent fiscal year
lists all of the Company's subsidiaries as of such date. All of the issued
and
outstanding shares of capital stock of each subsidiary have been duly authorized
and validly issued, are fully paid and non-assessable and are owned by the
Company, directly or through subsidiaries, free and clear of all liens,
encumbrances, equities or claims, except for such liens, encumbrances, equities
or claims ("Encumbrances")
as
could not, in the aggregate, reasonably be expected to have a Material Adverse
Effect or such Encumbrances as are described in the SEC Reports.
8
L. CAPITALIZATION
AND OTHER CAPITAL STOCK MATTERS.
The
Company has an authorized capitalization as set forth in the Company's Annual
Report on Form 10-K for the most recent fiscal year, and all of the issued
shares of capital stock of the Company have been duly authorized and validly
issued, are fully paid and non-assessable, and were issued in compliance with
federal and state securities laws and not in violation of any preemptive right,
resale right, right of first refusal or similar right. All of the Company's
options, warrants and other rights to purchase or exchange any securities for
shares of the Company's capital stock have been duly authorized and validly
issued, conform to the description thereof contained in the Company's Annual
Report on Form 10-K for the most recent fiscal year and were issued in
compliance with federal and state securities laws. The Company has not, in
the
twelve months preceding the date hereof, received notice (written or oral)
from
the NYSE to the effect that the Company is not in compliance with its listing
or
maintenance requirements.
M. NON-CONTRAVENTION
OF EXISTING INSTRUMENTS; NO FURTHER AUTHORIZATIONS OR APPROVALS
REQUIRED.
(i)
Neither the Company nor any of its subsidiaries listed on Schedule 3(M) hereto
(the "Significant
Subsidiaries")
is in
violation of its charter or by-laws (or similar organizational documents).
(ii)
Neither the Company nor any of its subsidiaries (A) is in default, and no event
has occurred that, with notice or lapse of time or both, would constitute such
a
default, in the due performance or observance of any term, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement, or other
agreement or instrument to which it is a party or by which it is bound or to
which any of its properties or assets is subject (each, an "Existing
Instrument")
or (B)
is in violation of any statute or any order, rule or regulation of any court
or
governmental agency or body having jurisdiction over it or its property or
assets, except in the case of clauses (ii)(A) and (B) above, to the extent
any
such conflict, breach, violation or default could not, in the aggregate,
reasonably be expected to have a Material Adverse Effect.
The
execution and delivery of and performance of its obligations under this
Agreement, the Registration Rights Agreement and the Articles Supplementary
(collectively, the "Operative
Documents")
by the
Company, the consummation of the transactions contemplated hereby and the
application of the proceeds from the sale of the Shares (i) will not conflict
with or result in (or constitute an event which with notice or passage of time
would conflict with or result in) a
breach
or violation of any of the terms or provisions of, impose any lien, charge
or
encumbrance upon any property or assets of the Company and its subsidiaries,
or
constitute a default under, any Existing Instrument; (ii) have been duly
authorized by all necessary corporate action and will not result in any
violation of the provisions of the charter or by-laws (or similar organizational
documents) of (A) the Company or (B) any of its subsidiaries; or (iii) will
not result in any violation of any statute or any order, rule or regulation
of
any court or governmental agency or body having jurisdiction over the Company
or
any of its subsidiaries or any of their properties or assets, except in the
case
of clause (i), (ii)(B) and (ii)(C) above as would not have a Material Adverse
Effect or interfere with the transactions contemplated by this
Agreement.
9
No
consent, approval, authorization or order of, or filing or registration with,
any court or governmental agency or body having jurisdiction over the Company
or
any of its Significant Subsidiaries or any of their properties or assets is
required for the execution and delivery of and performance of its obligations
under the Operative Documents by the Company, the consummation of the
transactions contemplated hereby or the application of the proceeds from the
sale of the Shares, except (i) with respect to the transactions contemplated
by
the Registration Rights Agreement, as may be required under the 1933 Act and
the
rules and regulations promulgated thereunder, and (ii) such as have been
obtained or made by the Company and are in full force and effect under the
1933
Act, applicable state securities or blue sky laws and from the Financial
Industry Regulatory Authority, Inc. (the "FINRA")
and
the New York Stock Exchange, Inc. (the "NYSE").
N. NO
STAMP
OR TRANSFER TAXES.
To the
Company's knowledge, there are no stamp or other issuance or transfer taxes
or
other similar fees or charges under federal law or the laws of any state, or
any
political subdivision thereof, required to be paid in connection with the
execution and delivery of this Agreement or the issuance by the Company or
sale
by the Company of the Shares or upon the issuance of Conversion Shares upon
the
conversion of the Preferred Shares.
O. NO
MATERIAL ACTIONS OR PROCEEDINGS.
Except
as otherwise disclosed in the SEC Reports, there are no legal or governmental
proceedings pending to which the Company or any of its subsidiaries is a party
or of which any property or assets of the Company or any of its subsidiaries
is
the subject that could, in the aggregate, reasonably be expected to have a
Material Adverse Effect or could, in the aggregate, reasonably be expected
to
have a material adverse effect on the performance of this Agreement or the
consummation of the transactions contemplated hereby; and to the Company's
knowledge, no such proceedings are threatened or contemplated by governmental
authorities or others.
P. LABOR
MATTERS.
Neither
the Company nor any of its subsidiaries has any employees.
Q. INTELLECTUAL
PROPERTY RIGHTS.
The
Company and each of its subsidiaries own or possess adequate license or other
rights to use all patents, trademarks, service marks, trade names, copyrights,
software and design licenses, trade secrets, and other intangible property
rights (collectively, "Intangibles")
necessary to entitle the Company and each of its subsidiaries to conduct their
respective businesses as described in the SEC Reports except where the failure
to own or possess such licenses or rights would not in the aggregate have a
Material Adverse Effect, and neither the Company nor any subsidiary has received
written notice of any infringement of or conflict with (and the Company does
not
know of any such infringement of or conflict with) asserted rights of others
with respect to any Intangibles that would have a Material Adverse
Effect.
10
R. ALL
NECESSARY PERMITS, ETC.
The
Company and each of its subsidiaries have such permits, licenses, franchises,
certificates and other approvals or authorizations of governmental or regulatory
authorities ("Permits")
as are
necessary under applicable law to own their properties and conduct their
businesses in the manner described in SEC Reports, except for any of the
foregoing that could not, in the aggregate, reasonably be expected to have
a
Material Adverse Effect; each of the Company and its subsidiaries has fulfilled
and performed all of its obligations with respect to the Permits, except where
the failure to fulfill or perform would not have a Material Adverse Effect,
and
no event has occurred that allows, or after notice or lapse of time would allow,
revocation or termination thereof or results in any other impairment of the
rights of the holder or any such Permits, except for any of the foregoing that
could not reasonably be expected to have a Material Adverse Effect.
S. TITLE
TO
PROPERTIES.
The
Company and its subsidiaries have good and marketable title in fee simple to
all
real property and good and marketable title to all personal property owned
by
them, in each case free and clear of any and all liens except such as are
described in the SEC Reports or such as would not have, individually or in
the
aggregate, a Material Adverse Effect; and any real property and buildings held
under lease or sublease by the Company and its subsidiaries are held by them
under valid, subsisting and enforceable leases with such exceptions as are
not
material to, and do not materially interfere with, the use made and proposed
to
be made of such property and buildings by the Company and its subsidiaries.
Neither the Company nor any Significant Subsidiary has received any notice
of
any claim adverse to its ownership of any real or personal property or of any
claim against the continued possession of any real property, whether owned
or
held under lease or sublease by the Company or any Significant
Subsidiary.
T. TAX
LAW
COMPLIANCE.
The
Company and each subsidiary have accurately prepared in all material respects
and timely filed all material federal, state, foreign and other tax returns
that
are required to be filed by it and have paid or made provision for the payment
of all material taxes, assessments, governmental or other similar charges,
including without limitation, all sales and use taxes and all taxes which the
Company or any subsidiary is obligated to withhold from amounts owing to
employees, creditors and third parties, with respect to the periods covered
by
such tax returns (whether or not such amounts are shown as due on any tax
return. No material deficiency assessment with respect to a proposed adjustment
of the Company's or any subsidiary's federal, state, local or foreign taxes
is
pending or, to the Company's knowledge, threatened. There is no tax lien,
whether imposed by any federal, state, foreign or other taxing authority,
outstanding against the assets, properties or business of the Company or any
subsidiary, except for any such liens that would not, individually or in the
aggregate, have a Material Adverse Effect.
U. COMPANY
NOT AN "INVESTMENT COMPANY".
The
Company is not, and after receipt of payment for the Shares and application
of
the proceeds will not be, an "investment company" within the meaning of the
Investment Company Act of 1940, as amended, and the rules and regulations of
the
SEC thereunder.
11
V. COMPLIANCE
WITH REPORTING REQUIREMENTS.
The
Company is subject to and in full compliance with the reporting requirements
of
Section 13 or Section 15(d) of the 1934 Act. The Company has filed all reports
required to be filed by it under the Exchange Act for the 12 months preceding
the date hereof on a timely basis, with the exception of certain Form 4s that
were filed late and will be disclosed in the Company's proxy statement for
2008.
Such reports, together with any materials filed or furnished by the Company
under the Exchange Act, whether or not any such reports were required being
collectively referred to herein as the "SEC
Reports"
and,
together with this Agreement and the Schedules to this Agreement, the
"Disclosure
Materials."
As of
their respective dates, the SEC Reports filed by the Company complied in all
material respects with the requirements of the 1933 Act and the 1934 Act and
the
rules and regulations of the SEC promulgated thereunder, and none of the SEC
Reports, when filed by the Company, contained any untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
W. INSURANCE.
Except
as otherwise disclosed in the SEC Reports, the Company and its Significant
Subsidiaries are insured by recognized, financially sound and reputable
institutions with policies in such amounts and with such deductibles and
covering such risks as are generally deemed adequate and customary for their
businesses including, but not limited to, policies covering real and personal
property owned or leased by the Company and its Significant Subsidiaries against
theft, damage, destruction, acts of terrorism or vandalism and earthquakes,
it
being understood that the only insurance held by the Company and its Significant
Subsidiaries are directors and officers insurance policies. The Company and
its
Significant Subsidiaries are in compliance with the terms of such policies
and
instruments in all material respects. None of the Company nor any of its
Significant Subsidiaries has reason to believe that it will not be able to
renew
its existing insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to continue its
business at a cost that would not have a Material Adverse Effect. Within the
past twelve months, neither the Company nor any of it Significant Subsidiaries
has been denied any insurance coverage that it has sought or for which it has
applied.
X. NO
RESTRICTION ON DISTRIBUTIONS.
No
Significant Subsidiary of the Company is currently prohibited, directly or
indirectly, from paying any dividends to the Company, from making any other
distribution on such subsidiary's capital stock, from repaying to the Company
any loans or advances to such subsidiary from the Company or from transferring
any of such subsidiary's property or assets to the Company or any other
subsidiary of the Company, except as described in or contemplated by the SEC
Reports.
Y. SECURITIES
LAWS.
(i) Assuming
the accuracy of the Buyer's representations and warranties set forth in Section
2, the offer, sale and issuance of the Securities as provided in this Agreement
is and is intended to be exempt from the registration requirements of the 1933
Act pursuant to Section 4(2) thereof.
(ii) Neither
the Company nor anyone acting on its behalf has offered the Preferred Shares
for
sale to, or solicited any offer to buy any of the same from, or otherwise
approached or negotiated in respect thereof with, any person other than the
Buyer, which has been offered the Shares as a private sale for
investment.
12
(iii) None
of
the Company nor any of its affiliates has offered the Preferred Shares during
the six months prior to the date hereof to anyone other than the Buyer. The
Company has no intention to offer the Preferred Shares during the six months
after the date hereof.
(iv) Neither
the Company nor any person acting on its behalf has offered or sold the Shares
by any form of general solicitation or general advertising, including, but
not
limited to, the following: (A) any advertisement, article, notice or other
communication published in any newspaper, magazine, or similar media or
broadcast over television or radio; (B) any website posting or widely
distributed e-mail; or (C) any seminar or meeting whose attendees have been
invited by any general solicitation or general advertising.
Z. NO
UNLAWFUL CONTRIBUTIONS OR OTHER PAYMENTS.
Neither
the Company nor any of its Significant Subsidiaries, nor, to the knowledge
of
the Company, any director, officer, agent, employee or other person associated
with or acting on behalf of the Company or any of its Significant Subsidiaries,
has, while acting on behalf of the Company or any of its Significant
Subsidiaries, (i) used any corporate funds for any unlawful contribution, gift,
entertainment or other unlawful expense relating to political activity; (ii)
made any direct or indirect unlawful payment to any foreign or domestic
government official or employee from corporate funds; or (iii) violated or
is in
violation of any provision of the U.S. Foreign Corrupt Practices Act of 1977,
as
amended, and the rules and regulations thereunder.
AA. NO
CONFLICT WITH MONEY LAUNDERING LAWS.
(i) To
the best of the Company's knowledge, the operations of the Company and its
Significant Subsidiaries are, and have been conducted at all times, in
compliance with applicable financial recordkeeping and reporting requirements
of
the Currency and Foreign Transactions Reporting Act of 1970, as amended, the
money laundering statutes of all jurisdictions, the rules and regulations
thereunder and any related or similar rules, regulations or guidelines, issued,
administered or enforced by any governmental agency (collectively, the
"Money
Laundering Laws")
and
(ii) no action, suit or proceeding by or before any court or governmental
agency, authority or body or any arbitrator involving the Company or any of
its
Significant Subsidiaries with respect to the Money Laundering Laws is pending
or, to the knowledge of the Company, threatened.
BB. NO
CONFLICT WITH OFAC LAWS.
Neither
the Company nor any of its Significant Subsidiaries nor, to the knowledge of
the
Company, any director, officer, agent or affiliate of the Company or any of
its
Significant Subsidiaries is currently subject to any U.S. sanctions administered
by the Office of Foreign Assets Control of the U.S. Treasury Department
("OFAC");
and
the Company will not directly or indirectly use the proceeds of the offering,
or
lend, contribute or otherwise make available such proceeds to any subsidiary,
joint venture partner or other person or entity, for the purpose of financing
the activities of any person currently subject to any U.S. sanctions
administered by OFAC.
CC. COMPLIANCE
WITH ENVIRONMENTAL LAWS.
The
Company and each of its subsidiaries are in compliance with any and all
applicable foreign, federal, state and local laws and regulations relating
to
the protection of human health and safety, the environment or hazardous or
toxic
substances or wastes, pollutants or contaminants ("Environmental
Laws"),
(ii)
have received all permits, licenses or other approvals required of them under
applicable Environmental Laws to conduct their respective businesses and (iii)
are in compliance with all terms and conditions of any such permit, license
or
approval, except where such noncompliance with Environmental Laws, failure
to
receive required permits, licenses or other approvals or failure to comply
with
the terms and conditions of such permits, licenses or approvals would not,
singly or in the aggregate, have a Material Adverse Effect.
13
DD. COSTS
OF
ENVIRONMENTAL COMPLIANCE.
There
are no costs or liabilities associated with Environmental Laws (including,
without limitation, any capital or operating expenditures required for clean
up,
closure of properties or compliance with Environmental Laws or any permit,
license or approval, any related constraints on operating activities and any
potential liabilities to third parties) which would, singly or in the aggregate,
have a Material Adverse Effect.
EE. NO
OUTSTANDING LOANS OR OTHER INDEBTEDNESS.
There
are no outstanding loans, advances (except normal advances for business expenses
in the ordinary course of business) or guarantees or indebtedness by the Company
to or for the benefit of any of the officers or directors of the Company or
any
of the members of any of their families, except as disclosed in the SEC
Reports.
FF. XXXXXXXX-XXXXX
COMPLIANCE.
There
is and has been no failure on the part of the Company, and to the Company's
knowledge, any of the Company's directors or officers, in their capacities
as
such, to comply with the provisions of the Xxxxxxxx-Xxxxx Act of 2002 and the
rules and regulations promulgated in connection therewith.
GG. INTERNAL
CONTROLS AND PROCEDURES.
The
Company maintains a system of internal control over financial reporting (as
such
term is defined in Rule 13a-15(f) under the 0000 Xxx) that complies with the
requirements of the 1934 Act and has been designed by the Company's principal
executive officer and principal financial officer, or under their supervision,
to provide reasonable assurance regarding the reliability of financial reporting
and the preparation of financial statements for external purposes in accordance
with generally accepted accounting principles. The Company's internal control
over financial reporting is effective and the Company is not aware of any
material weaknesses in its internal control over financial reporting. Since
the
date of the latest audited financial statements included in the Company's Annual
Report on Form 10-K for the most recent fiscal year, there has been no change
in
the Company's internal control over financial reporting that has materially
affected, or is reasonably likely to materially affect, the Company's internal
control over financial reporting.
HH. DISCLOSURE
CONTROLS.
The
Company maintains disclosure controls and procedures (as such term is defined
in
Rule 13a-15(e) under the 0000 Xxx) that comply with the requirements of the
1934
Act; such disclosure controls and procedures have been designed to ensure that
material information relating to the Company and its Significant Subsidiaries
is
made known to the Company's principal executive officer and principal financial
officer by others within those entities; and such disclosure controls and
procedures are effective to perform the functions for which they were
established.
14
II. STOCK
OPTIONS.
Except
as described in the SEC Reports, with respect to the stock options (the
"Stock
Options")
granted pursuant to the stock-based compensation plans of the Company and its
subsidiaries (the "Company
Stock Plans"),
(i)
each Stock Option designated by the Company or the relevant subsidiary of the
Company at the time of grant as an "incentive stock option" under Section 422
of
the Code, so qualifies, (ii) each grant of a Stock Option was duly authorized
no
later than the date on which the grant of such Stock Option was by its terms
to
be effective (the "Grant
Date")
by all
necessary corporate action, including, as applicable, approval by the board
of
directors of the Company or the relevant subsidiary of the Company (or a duly
constituted and authorized committee thereof) and any required stockholder
approval by the necessary number of votes or written consents, and the award
agreement governing such grant (if any) was duly executed and delivered by
each
party thereto, (iii) each such grant was made in accordance with the terms
of
the Company Stock Plans, the 1934 Act and all other applicable laws and
regulatory rules or requirements, including the rules of the New York Stock
Exchange and any other exchange on which the securities of the Company or the
relevant subsidiary of the Company are traded, (iv) the per share exercise
price
of each Stock Option was equal to or greater than the fair market value of
a
share of Common Stock on the applicable Grant Date and (v) each such grant
was
properly accounted for in accordance with GAAP in the consolidated financial
statements (including the related notes) of the Company and disclosed in the
Company's filings with the SEC in accordance with the 1934 Act and all other
applicable laws. Neither the Company nor any of its Significant Subsidiaries
has
knowingly granted, and there is no and has been no policy or practice of the
Company or any of its subsidiaries of granting, Stock Options prior to, or
otherwise coordinating the grant of Stock Options with, the release or other
public announcement of material information regarding the Company or its
subsidiaries or their results of operations or prospects.
JJ. SUBSIDIARIES.
The
subsidiaries listed on Schedule 3(JJ) attached hereto are the only significant
subsidiaries of the Company as defined by Rule 1-02 of Regulation
S-X.
KK. TAX
STATUS.
The
Company has been, and upon the sale of the Securities pursuant to this Agreement
will continue to be, organized and operated in conformity with the requirements
for qualification and taxation as a REIT under the REIT Provisions of the Code,
for all taxable years commencing with its taxable year of formation. The
proposed method of operation of the Company as described in the SEC Reports
will
enable the Company to continue to meet the requirements for qualification and
taxation as a REIT under the Code. The Company currently intends to continue
to
operate in a manner which would permit it to qualify as a real estate investment
trust 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, and will use its commercially reasonable efforts
to
operate in such a manner that it does not to become, a “United States real
property holding corporation” (a “USRPHC”) as defined in Code Section
897(c)(2).
LL. RELATED
PARTY TRANSACTIONS.
No
relationship, direct or indirect, exists between or among the Company, on the
one hand, and the directors, officers, stockholders, customers or suppliers
of
the Company, on the other hand, that is required to be described by the 1933
Act, 1934 Act or the rules and regulations thereunder in the SEC Reports which
is not so described. 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.
15
MM. OWNERSHIP
LIMITATIONS. The Company has taken all actions necessary to exempt (the
“Exemption”) the Buyer, RECP and direct and indirect owners thereof (together,
the “Exempt Shareholders”) and Qualified Transferees (as defined in Exhibit
E)
from
the ownership limitation set forth in section 6.1.2(a) of the Articles (the
“Ownership Limit”) with respect to the acquisition and ownership of the Exempted
Stock (as defined in Exhibit
E),
subject the terms and conditions as set forth in that certain letter from the
Company to Buyer dated the date hereof regarding the Exemption (the “Exemption
Letter”), in the form attached hereto as Exhibit
E.
4.
COVENANTS.
A. BEST
EFFORTS. The parties shall use their reasonable
best efforts to satisfy timely each of the conditions described in Sections
5
and 6 of this Agreement.
B. FORM
D;
BLUE SKY LAWS. If required, the Company agrees to file a Form D with respect
to
the Securities as required under Regulation D of the 1933 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 Section 13, 14 or 15(d) of 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
"registrant eligibility" requirements set forth in the general instructions
to
Form S-3 under the 1933 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.
16
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. TAX
STATUS. The Company (i) will use its best efforts to operate in a manner in
accordance with the requirements for qualification and taxation as a REIT and
(ii) will use its commercially reasonable efforts not to become a USRPHC. In
the
event of the taking or proposed taking of any action that would cause any
representation set forth in Section 3(KK) 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.
I. 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.
J. RESERVATION
OF COMMON SHARES.
The
Company shall maintain a reserve from its duly authorized shares of Common
Stock
for issuance pursuant to this Agreement and the Articles Supplementary in such
amount as may be required to fulfill its obligations to issue such Conversion
Shares under this Agreement and the Articles Supplementary. In the event that
at
any time the then authorized shares of Common Stock are insufficient for the
Company to satisfy its obligations to issue such Conversion Shares under this
Agreement and the Articles Supplementary, the Company shall promptly take such
actions as may be required to increase the number of authorized
shares.
K. SECURITIES
LAWS DISCLOSURE; PUBLICITY.
The
Company shall, at or before 9:00 a.m., New York time, on the first Trading
Day
following execution of this Agreement, issue a press release disclosing all
material terms of the transactions contemplated hereby. On or before April
7,
2008, the Company shall file a Current Report on Form 8-K with the SEC (the
"8-K
Filing")
describing the terms of the transactions contemplated by this Agreement and
including as exhibits to such Current Report on Form 8-K the Operative Documents
in the form required by the Exchange Act.
L. FIRPTA
DIVIDENDS. The Company will use its commercially reasonable efforts to notify
Buyer within 30 days prior to the record date of any dividend which the Company
believes will be treated as a distribution to stockholders described in Section
897(h)(1) of the Code (determined without regard to the second sentence in
said
section).
17
M. ADDITIONAL
TAX MATTERS. The Company shall not, unless and until there is a final
“determination” to the contrary within the meaning of Section 1313(a) of the
Code, (i) treat any of the Preferred Shares as having been issued with a
redemption premium that is required to be included in taxable income prior
to the redemption of such Preferred Shares, (ii) treat a failure to adjust
the
conversion ratio of any class of Preferred Shares as a constructive distribution
with respect to such class of Preferred Shares, and (iii) treat
dividends in arrears with respect to the Preferred Shares as constructively
received for U.S. federal income purposes if such dividends were not
declared or paid.
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.
6. CONDITIONS
TO THE BUYER'S OBLIGATION TO PURCHASE. The obligation of the Buyer hereunder
to
purchase the 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, substantially in the form attached hereto as
Exhibit
D,
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 duly executed certificates
representing the Shares in accordance with Section 1(B) above.
18
C. The
Articles Supplementary shall be in substantially the form attached hereto as
Exhibits
A,
B,
and
C,
and
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.
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 of competent jurisdiction or any
self-regulatory organization having authority over the matters contemplated
hereby necessary to consummate the transactions contemplated by this Agreement
and issue the Securities and permit the utilization of the proceeds of the
Shares as described herein.
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 be reasonably likely to 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. The
Buyer
shall have received the following, addressed to it and in form and substance
reasonably satisfactory to it:
(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,
the
Articles Supplementary and 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 and By-laws of the Company as in effect at the
Closing;
19
(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) an
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), 6(D), 6(G)
and
6(H); and
(v) the
opinion of each of (A) Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP and (B)
Miles & Stockbridge, P.C., Maryland counsel to the Company, each in a form
reasonably acceptable to the Buyer and its counsel; and
(vi) a
tax
opinion reasonably acceptable to Buyer and its counsel addressed to Buyer from
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, dated as of the Closing Date,
opining that commencing with the Company's initial taxable year that ended
on
December 31, 1998, the Company was organized in conformity with the requirements
for qualification as a REIT under the Code, and its actual method of operation
through the Closing Date has enabled, and its proposed method of operation
will
enable it to meet the requirements for qualification and taxation as a REIT.
Such tax opinion shall be based upon customary representations made by the
Company and the Company’s subsidiaries in an officer’s certificate that is
reasonably acceptable to Buyer.
J. 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.
K. Xxxxxx
X.
Xxxxxx shall have been appointed to the Company's Board of
Directors.
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,
claims
or damages ("Loss")
and (y)
out-of-pocket expenses, including without limitation reasonable 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.
20
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 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 is materially
prejudiced 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); 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 is materially prejudiced as a result
of such failure to give notice.
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 advice 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.
21
8.
GOVERNING
LAW; MISCELLANEOUS.
A. GOVERNING
LAW. This
Agreement shall be governed by and construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in such state. Any legal suit, action or proceeding arising out of or based
upon
this Agreement or the transactions contemplated hereby ("Related
Proceedings")
may be
instituted in the federal courts of the United States of America located in
the
Borough of Manhattan in the City of New York or the courts of the State of
New
York in each case located in the Borough of Manhattan in the City of New York
(collectively, the "Specified
Courts"),
and
each party irrevocably submits to the exclusive jurisdiction (except for
proceedings instituted in regard to the enforcement of a judgment of any such
court (a "Related
Judgment"),
as to
which such jurisdiction is non-exclusive) of such courts in any such suit,
action or proceeding. Service of any process, summons, notice or document by
mail to such party's address set forth above shall be effective service of
process for any suit, action or other proceeding brought in any such court.
The
parties irrevocably and unconditionally waive any objection to the laying of
venue of any suit, action or other proceeding in the Specified Courts and
irrevocably and unconditionally waive and agree not to plead or claim in any
such court that any such suit, action or other proceeding brought in any such
court has been brought in an inconvenient forum.
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.
22
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. This Agreement supersedes and replaces any understanding of the parties
reflected in the Equity Investment Letter of Intent, dated March 28, 2008,
between the Company and RECP, and in the event of any conflict with the terms
or
provisions therein, the terms and provisions of this Agreement prevail. 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 Buyer. 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 unless the same consideration also is offered to all the parties
to
this Agreement.
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.
00
Xxxx
00xx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Facsimile
No.: (000) 000-0000
Attn:
Xxxxxxx X. Xxxx
With
copy
to:
Skadden,
Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx
Xxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Facsimile
No.: (000) 000-0000
Attn:
Xxxxxxx X. Xxxxxx, Esq.
If
to the
Buyer to:
c/o
DLJ
Real Estate Capital Partners
Credit
Suisse
23
00
Xxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Facsimile
No.: (000) 000-0000
Attn:
Xxxx Xxxx
With
copy
to:
Proskauer
Rose LLP
0000
Xxxxxxxx
Xxx
Xxxx,
XX 00000
Facsimile
No.: (000) 000-0000
Attn:
Xxxxx X. Xxxx, Esq.
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 a
subsidiary of Buyer or 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; provided, however, that the Company will
reimburse the Buyer upon the earlier of (i) the Closing and (ii) the date this
Agreement is terminated other than by reason of a default by Buyer for up to
$75,000 of its expenses and fees related to the transactions contemplated by
this Agreement, including the reasonable fees of its legal counsel to be
reflected in an invoice to be delivered to the Company on the Closing
Date.
24
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.
O. CONFIDENTIALITY.
The
Company has provided and may continue to provide certain Confidential
Information to the Buyer. The Buyer agrees that it will not disclose the
Confidential Information to any other person except: (i) to its affiliates,
directors, officers, partners, employees and advisors who need to know the
information in connection with the transactions described in this Agreement
or
compliance with the terms hereof (collectively, the "Authorized
Representatives"), it being understood that the Buyer shall advise the
Authorized Representatives of the confidential nature of the Confidential
Information and shall instruct the Authorized Representatives to maintain the
confidentiality of such information; and (ii) if required to do so by applicable
law or regulation or regulatory, administrative or legal process (including,
without limitation, by oral questions, interrogatories, requests for
information, subpoena of documents, civil investigative demand or similar
process or the rules and regulations of the Securities and Exchange Commission
or any stock exchange having jurisdiction over the Buyer). The Buyer hereby
confirms that it is aware that the United States securities laws prohibit any
person who has material non-public information about a company from purchasing
or selling securities of such company. This provision shall terminate on the
date that such information is no longer Confidential Information within the
meaning of this provision.
|
(i)
|
"Confidential
Information" shall mean all information disclosed by the Company
to the
Buyer or its Authorized Representatives relating to the Company and
the
transactions described herein but excludes information that: (i)
was
already in the possession of the Buyer or its Authorized Representatives
before being disclosed by the Company; (ii) is or becomes available
to the
public other than as a result of a disclosure by the Buyer or its
Authorized Representatives in breach of this Agreement; (iii) was
or is
developed by the Buyer or its Authorized Representatives without
the use
of Confidential Information; or (iv) is or becomes available to the
Buyer
or its Authorized Representatives from a third party not known by
such
recipient to be in breach of any legal obligation not to disclose
such
information.
|
25
P. ORDINARY
COURSE OF BUSINESS. Notwithstanding
anything in this Agreement to the contrary, neither the Credit Suisse Group
nor
any of its affiliates shall be restricted in any way from engaging in any
brokerage, investment advisory, financial advisory, anti-raid advisory,
financing, asset management, trading, market making, arbitrage and other similar
activities conducted in the ordinary course of its business.
Q. DEFINITIONS.
(i)
"Trading
Day"
means
(i) a day on which the Common Stock is traded on a Trading Market (other than
the OTC Bulletin Board), or (ii) if the Common Stock is not listed or quoted
on
a Trading Market (other than the OTC Bulletin Board), a day on which the Common
Stock is traded in the over-the-counter market, as reported by the OTC Bulletin
Board, or (iii) if the Common Stock is not listed or quoted on any Trading
Market, a day on which the Common Stock is quoted in the over-the-counter market
as reported by the Pink Sheets LLC (or any similar organization or agency
succeeding to its functions of reporting prices); provided, that in the event
that the Common Stock is not listed or quoted as set forth in (i), (ii) and
(iii) hereof, then Trading Day shall mean a Business Day.
(ii)
"Trading
Market"
means
whichever of the New York Stock Exchange, the American Stock Exchange, the
NASDAQ Global Select Market, the NASDAQ Global Market, the NASDAQ Capital Market
or OTC Bulletin Board on which the Common Stock is listed or quoted for trading
on the date in question.
26
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/
Xxxxxxxxxxx X. Xxxxxx
|
||
|
Name:
Xxxxxxxxxxx
X. Xxxxxx
|
|||
|
Title
Chief
Executive Officer
|
|||
27
| By: |
/s/
Xxxxx X. Xxxxx
|
||
|
Name:
Xxxxx X. Xxxxx
|
|||
|
Title
Vice President
|
|||
ADDRESS:
c/o
DLJ
Real Estate Capital Partners
Credit
Suisse
00
Xxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
AGGREGATE
SUBSCRIPTION AMOUNT: $93,500,000
Number
of
Series E-1 Preferred Shares: 23,375
Number
of
Series E-2 Preferred Shares: 23,375
Number
of
Series E-3 Preferred Shares: 23,375
Number
of
shares of Common Stock: 3,494,021
28
