Exhibit 99.1
ANTHRACITE CAPITAL, INC.
4,400,000 Shares of Common Stock
UNDERWRITING AGREEMENT
November 1, 2001
UBS Warburg LLC,
Friedman, Billings, Ramsey & Co., Inc.,
ABN AMRO Rothschild LLC,
as Underwriters
c/o UBS Warburg LLC,
299 Park Avenue,
New York, NY 10171-0026.
Ladies and Gentlemen:
Anthracite Capital, Inc., a Maryland corporation that has elected
to be taxed as a real estate investment trust (the "Company"), proposes to
issue and sell to the several underwriters named in Schedule A hereto (the
"Underwriters") an aggregate of 4,400,000 shares (the "Initial Shares") of
common stock, $.001 par value (the "Common Stock"), of the Company. In
addition, solely for the purpose of covering over-allotments, the Company
proposes to grant to the several Underwriters the option described in
Section 1(b) hereof to purchase, all or any part of 660,000 additional
shares of Common Stock (the "Optional Shares"). The Initial Shares and the
Optional Shares are hereinafter collectively referred to as the "Shares."
The Shares are described in the Prospectus referred to below.
The Company has filed, in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations
thereunder (collectively called the "Act"), with the Securities and
Exchange Commission (the "Commission") a registration statement on Form S-3
(File No. 333-69848) including a prospectus, relating to the Shares, which
incorporates by reference documents which the Company has filed in
accordance with the provisions of the Securities Exchange Act of 1934, as
amended, and the rules and regulations thereunder (collectively called the
"Exchange Act"). The Company has prepared a prospectus supplement (the
"Prospectus Supplement"), including the prospectus included in the
registration statement referred to above and the documents incorporated by
reference therein, setting forth the terms of the offering, sale and plan
of distribution of the Shares and additional information concerning the
Company and its business. The Company has furnished to you, for use by the
Underwriters and by dealers, copies of one or more preliminary
prospectuses, containing the prospectus included in the registration
statement, as supplemented by a preliminary Prospectus Supplement and the
documents incorporated by reference therein (each thereof, including the
documents incorporated therein by reference, being herein called a
"Preliminary Prospectus") relating to the Shares. Except where the context
otherwise requires, the registration statement referred to above, as
amended when it became effective, including all documents filed as a part
thereof or incorporated by reference therein, and including any information
contained in a prospectus subsequently filed with the Commission pursuant
to Rule 424(b) under the Act and also including any registration statement
filed pursuant to Rule 462(b) under the Act, are herein called the
"Registration Statement", and the prospectus, including all documents
incorporated therein by reference, included in the Registration Statement,
in the form filed by the Company with the Commission pursuant to Rule
424(b) under the Act on or before the second business day after the date
hereof (or such earlier time as may be required under the Act), is herein
called the "Prospectus". Any reference herein to the Registration
Statement, the Prospectus, any Preliminary Prospectus or any amendment or
supplement thereto shall be deemed to refer to and include the documents
incorporated by reference therein, and any reference herein to the terms
"amend", "amendment", or "supplement" with respect to the Registration
Statement, the Prospectus or any Preliminary Prospectus shall be deemed to
refer to and include the filing after the execution hereof of any document
with the Commission deemed to be incorporated by reference therein. For
purposes of this Agreement, all references to the Registration Statement or
Prospectus or to any amendment or supplement thereto shall be deemed to
include any copy filed with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval System ("EDGAR").
The Company and the several Underwriters agree as follows:
1. Sale and Purchase.
(a) Initial Shares. Upon the basis of the warranties and
representations and other terms and conditions herein set forth, at the
purchase price per share of $9.01, the Company agrees to sell to the
Underwriters, and each of the Underwriters agrees, severally and not
jointly, to purchase from the Company, the respective numbers of shares of
the Initial Shares set forth opposite the names of the Underwriters in
Schedule A hereto. The Company is advised by the Underwriters that the
Underwriters intend (i) to make a public offering of their respective
portions of the Initial Shares as soon after the date of this Agreement as
in their judgment is advisable and (ii) to initially offer the Initial
Shares upon the terms set forth in the Prospectus. The Underwriters may
from time to time increase or decrease the public offering price after the
initial public offering to such extent as they may determine.
(b) Optional Shares. In addition, the Company hereby grants to the
several Underwriters the option to purchase, and upon the basis of the
warranties and representations and subject to the terms and conditions
herein set forth, the Underwriters shall have the right to purchase,
severally and not jointly, from the Company, ratably in accordance with the
number of Initial Shares to be purchased by each of them (subject to such
adjustment as you shall determine to avoid fractional shares), all or a
portion of the Optional Shares as may be necessary to cover over-allotments
made in connection with the offering of the Initial Shares, at the same
purchase price per share to be paid by the Underwriters to the Company for
the Initial Shares. This option may be exercised by you on behalf of the
several Underwriters at any time (but not more than once) on or before the
thirtieth day following the date hereof, by written notice to the Company.
Such notice shall set forth the aggregate number of Optional Shares as to
which the option is being exercised, and the date and time when Optional
Shares are to be delivered (such date and time being herein referred to as
the "Date of Delivery"); provided, however, that the additional time of
purchase shall not be earlier than the Closing Time (as herein defined nor
earlier than the second business day after the date on which the option
shall have been exercised nor later than the tenth business day after the
date on which the option shall have been exercised. As used herein
"business day" shall mean a day on which the New York Stock Exchange is
open for trading. The number of Optional Shares to be sold to each
Underwriter shall be the number which bears the same proportion to the
aggregate number of Additional Shares being purchased as the number of
Initial Shares set forth opposite the name of such Underwriter on Schedule
A hereto bears to the total number of Initial Shares (subject, in each
case, to such adjustment as you may determine to eliminate fractional
shares).
2. Payment and Delivery.
(a) Initial Shares. The Initial Shares to be purchased by the
Underwriters hereunder, in definitive form, and in such authorized
denominations and registered in such names as the Underwriters may request
upon at least forty-eight hours' prior notice to the Company shall be
delivered by or on behalf of the Company to the Underwriters, including, at
the option of the Underwriters, through the facilities of The Depository
Trust Company ("DTC") for the accounts of the several Underwriters, against
payment by or on behalf of the Underwriters of the purchase price therefor
by wire transfer of Federal (same-day) funds to the account specified to
the Underwriters by the Company upon at least forty-eight hours' prior
notice. The Company will cause the certificates representing the Initial
Shares to be made available for checking and packaging at least twenty-four
hours prior to the Closing Time (as defined below) with respect thereto at
the office of Sullivan & Cromwell, 125 Broad Street, New York, New York
10019 or at the office of DTC or its designated custodian, as the case may
be (the "Designated Office"). The time and date of such delivery and
payment shall be 9:30 a.m., New York City time, on November 7, 2001 or on
such other time and date as the Company and the Underwriters may agree upon
in writing. The time at which such payment and delivery are actually made
is hereinafter called the "Closing Time".
(b) Optional Shares. Any Optional Shares to be purchased by the
Underwriters hereunder, in definitive form, and in such authorized
denominations and registered in such names as the Underwriters may request
upon at least forty-eight hours' prior notice to the Company shall be
delivered by or on behalf of the Company to the Underwriters, including, at
the option of the Underwriters, through the facilities of DTC for the
account of the several Underwriters, against payment by or on behalf of the
Underwriters of the purchase price therefor by wire transfer of Federal
(same-day) funds to the account specified to the Underwriters by the
Company. The Company will cause the certificates representing the Optional
Shares to be made available for checking and packaging at least twenty-four
hours prior to the Date of Delivery with respect thereto at the Designated
Office. The time and date of such delivery and payment shall be 9:30 a.m.,
New York City time, on the date specified by the Underwriters in the notice
given by the Underwriters to the Company of the Underwriters' election to
purchase such Optional Shares or on such other time and date as the Company
and the Underwriters may agree upon in writing.
3. Representations and Warranties of the Company.
The Company represents and warrants to the several Underwriters,
on and as of (i) the date hereof, (ii) the Closing Time, and (iii) the Date
of Delivery:
(a) each of the Company, each subsidiary of the Company set forth
on Schedule I hereto (each a "Subsidiary" and, collectively, the
"Subsidiaries") and BlackRock Financial Management, Inc. (the "Manager")
has been duly organized or incorporated, as the case may be, and is validly
existing as a limited liability company or corporation, as the case may be,
and in good standing under the laws organized or of its respective
jurisdiction of organization or incorporation with all requisite corporate
power and authority to own, lease and operate its respective properties and
to conduct its respective business as conducted and as proposed to be
conducted as described in the Registration Statement and Prospectus and, in
the case of the Company, to authorize, execute and deliver this Agreement
and to consummate the transactions contemplated hereby;
(b) the Company and the Subsidiaries are duly qualified or
registered to transact business in each jurisdiction in which they conduct
their respective businesses as conducted and as proposed to be conducted as
described in the Registration Statement and the Prospectus and in which the
failure, individually or in the aggregate, to be so qualified or registered
could reasonably be expected to have a material adverse effect on the
assets, operations or condition (financial or otherwise) of the Company and
the Subsidiaries taken as a whole; and the Company and the Subsidiaries are
in good standing in each jurisdiction in which they own or lease real
property or maintain an office or in which the nature or conduct of their
respective businesses as now conducted or proposed to be conducted as
described in the Registration Statement and the Prospectus requires such
qualification, except where the failure to be in good standing could be
reasonably expected to not have a material adverse effect on the assets,
operations, business or condition (financial or otherwise) of the Company
and the Subsidiaries taken as a whole;
(c) the Company and the Subsidiaries are in compliance in all
material respects with all applicable laws, rules, regulations, orders,
decrees and judgments;
(d) neither the Company nor any of the Subsidiaries is in breach
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), its
respective charter or bylaws, 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 or other
agreement or instrument to which the Company or any of the Subsidiaries is
a party or by which any of them or their respective properties is bound,
except for such breaches or defaults that could be reasonably expected to
have a material adverse effect on the assets, operations, business or
condition (financial or otherwise) of the Company and the Subsidiaries
taken as a whole, and the issuance, sale and delivery by the Company of the
Shares, the execution, delivery and performance of this Agreement by the
Company, and consummation of the transactions contemplated hereby will not
conflict with, or result in any breach of, or constitute a default under
(nor constitute any event which with notice, lapse of time, or both would
constitute a breach of, or default under), (i) any provision of the charter
or bylaws of the Company, any of the Subsidiaries or the Manager, (ii) any
provision of any license, indenture, mortgage, deed of trust, loan or
credit agreement or other agreement or instrument to which the Company, any
of the Subsidiaries or the Manager is a party or by which any of them or
their respective properties may be bound or affected, or (iii) any federal,
state, local or foreign law, regulation or rule or any decree, judgment or
order applicable to the Manager, the Company or any of the Subsidiaries,
except in the case of clause (ii) for such breaches or defaults which,
could be reasonably expected not to have a material adverse effect, with
respect to the Company or the Subsidiary on the assets, operations,
business or condition (financial or otherwise) of the Company and the
Subsidiaries taken as a whole or result in the creation or imposition of
any material lien, charge, claim or encumbrance upon any property or asset
of the Company or the Subsidiaries or, with respect to the Manager, would
not have a material adverse effect on the ability of the Manager to perform
its obligations under the Management Agreement between the Manager and the
Company dated March 27, 1998, as amended on January 1, 1999 and May 5, 2000
(the "Management Agreement");
(e) the Company has full legal right, power and authority to enter
into and perform this Agreement and to consummate the transactions
contemplated herein; this Agreement has been duly authorized, executed and
delivered by the Company and each is a legal, valid and binding agreement
of the Company enforceable in accordance with its terms, except as may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting creditors' rights generally, and by general principles of
equity, and except to the extent that the indemnification and contribution
provisions of Section 9 hereof may be limited by federal or state
securities laws and public policy considerations in respect thereof;
(f) the Manager has full legal right, power and authority to
perform the Management Agreement and to consummate the transactions
contemplated therein; the Management Agreement has been duly authorized,
executed and delivered by the Manager and constitutes a valid and binding
agreement of the Manager, enforceable in accordance with its terms, except
as may be limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors' rights generally, and by general
principles of equity;
(g) the issuance and sale of the Shares to the several
Underwriters hereunder have been duly authorized by the Company; when
issued and delivered against payment therefor as provided in this
Agreement, the Shares will be validly issued, fully paid and non-assessable
and the issuance of the Shares will not be subject to any preemptive or
similar rights; except as contemplated herein, no person or entity holds a
right to require or participate in the registration under the Securities
Act of the Shares pursuant to the Registration Statement; no person or
entity has a right of participation or first refusal with respect to the
sale of the Shares by the Company; except as set forth in the Prospectus,
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 Securities
Act with respect to any securities of the Company or to require the Company
to include such securities with the Shares registered pursuant to the
Registration Statement; the form of certificates evidencing the Shares
complies with all applicable legal requirements and, in all material
respects, with all applicable requirements of the charter and bylaws of the
Company and the requirements of the New York Stock Exchange;
(h) 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 consummation
of the transaction contemplated hereby, (ii) the performance by the Manager
of the Management Agreement or the consummation of the transactions
contemplated thereby, or (iii) the sale and delivery of the Shares, other
than (w) such as have been obtained, or will have been obtained on the
Closing Time or the Date of Delivery, as the case may be, under the
Securities Act or the Exchange Act, (x) such approvals as have been
obtained in connection with the approval of the listing of the Shares on
the New York Stock Exchange, (y) any necessary qualification under the
securities or blue sky laws of the various jurisdictions in which the
Shares are being offered by the Underwriters, and (z) any approvals
required by the National Association of Securities Dealers, Inc.;
(i) each of the Company and the Subsidiaries has all necessary
licenses, authorizations, consents and approvals and has made all necessary
filings required under any federal, state or local law, regulation or rule,
and has obtained all necessary authorizations, consents and approvals from
other persons required in order to conduct their respective businesses as
described in the Registration Statement and Prospectus, except to the
extent that any failure to have any such licenses, authorizations, consents
or approvals, to make any such filings or to obtain any such
authorizations, consents or approvals could reasonably be expected to not
have, individually or in the aggregate, a material adverse effect on the
assets, operations, business or condition (financial or otherwise) of the
Company and the Subsidiaries taken as a whole; neither the Company nor any
of the Subsidiaries is in violation of, in default under, or has received
any notice regarding a possible violation, default or revocation of any
such license, authorization, consent or approval or any federal, state,
local or foreign law, regulation or rule or any decree, order or judgment
applicable to the Company or any of the Subsidiaries, the effect of which
could reasonably be expected to be material and adverse to the assets,
operations, business or condition (financial or otherwise) of the Company
and the Subsidiaries taken as a whole; and no such license, authorization,
consent or approval contains a materially burdensome restriction that is
not adequately disclosed in the Registration Statement and the Prospectus;
(j) each of the Registration Statement and any Rule 462(b)
Registration Statement has become effective under the Securities Act and no
stop order suspending the effectiveness of the Registration Statement or
any Rule 462(b) Registration Statement has been issued under the Securities
Act and no proceedings for that purpose have been instituted or are pending
or, to the knowledge of the Company, are threatened by the Commission, and
the Company has complied with any request on the part of the Commission for
additional information;
(k) the Company and the transactions contemplated by this
Agreement meet the requirements and conditions for using a registration
statement on Form S-3 under the Securities Act, set forth in the General
Instructions to Form S-3; the Registration Statement complies, and the
Prospectus and any further amendments or supplements thereto will comply,
when they have become effective or are filed with the Commission, as the
case may be, in all material respects with the requirements of the
Securities Act and, in each case, present, or will present, fairly the
information required to be shown; the Registration Statement did not, and
any amendment thereto will not, in each case as of the applicable effective
date, 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, in the light of the circumstances under which they were
made, not misleading; and the Prospectus or any amendment or supplement
thereto will not, as of the applicable filing date and at the Closing Time
and on each Date of Delivery, 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, in the light of the circumstances
under which they were made, not misleading; provided, however, that the
Company makes no warranty or representation with respect to any statement
contained in the Registration Statement or the Prospectus in reliance upon
and in conformity with the information concerning the Underwriters and
furnished in writing by the Underwriters to the Company expressly for use
in the Registration Statement or the Prospectus;
(l) each document incorporated by reference in the Prospectus,
when it became effective or was filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Exchange
Act and none of such documents contained an 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; and any further documents so
filed and incorporated by reference in the Prospectus or any further
amendment or supplement thereto, when such documents become effective or
are filed with the Commission, as the case may be, will conform in all
material respects to the requirements of the Securities Act or the Exchange
Act, as applicable, and will not include an untrue statement of a material
fact or omit to state a material fact required to be stated therein
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(m) the Prospectus in paper format delivered to the Underwriters
for use in connection with this offering will be identical in all material
respects to the version of the Prospectus created to be transmitted to the
Commission for filing via EDGAR, except to the extent permitted by
Regulation S-T;
(n) all legal or governmental proceedings, contracts or documents
that are material and of a character required to be filed as exhibits to
the Registration Statement or to be summarized or described in the
Prospectus have been so filed, summarized or described as required;
(o) there are no actions, suits, proceedings, inquiries or
investigations pending or, to the Company's knowledge, threatened against
the Company or any of the Subsidiaries or any of their respective officers
and directors or to which the properties, assets or rights of any such
entity is 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 on the assets, operations, business or condition (financial or
otherwise) of the Company and the Subsidiaries taken as a whole, or which
could adversely affect the consummation of the transactions contemplated by
this Agreement in any material respect;
(p) the financial statements, including the notes thereto,
included in the Registration Statement and the Prospectus present fairly
the financial position of the entity or entities presented therein as of
the dates indicated and the results of operations and changes in financial
position and cash flows of the entity or entities presented therein for the
periods specified; such financial statements have been prepared in
conformity with generally accepted accounting principles as applied in the
United States and on a consistent basis during the periods involved and in
accordance with Regulation S-X promulgated by the Commission; the financial
statement schedules included or incorporated by reference in the
Registration Statement and the Prospectus fairly present the information
required to be shown therein; no other financial statements or schedules
are required by Form S-3 or otherwise to be included in the Registration
Statement or Prospectus; the unaudited pro forma financial information
(including the related notes) included in the Prospectus complies as to
form in all material respects to the applicable accounting requirements of
the Securities Act, and management of the Company believes that the
assumptions underlying the pro forma adjustments are reasonable; such pro
forma adjustments have been properly applied to the historical amounts in
the compilation of the information and such information fairly presents
with respect to the Company and the Subsidiaries, the financial position,
results of operations and other information purported to be shown therein
at the respective dates and for the respective periods specified; no other
pro forma financial information is required to be included in the
Registration Statement;
(q) the Company has filed in a timely manner all reports required
to be filed pursuant to sections 13, 14, 15(d) of the Exchange Act during
the preceding twelve calendar months and if during such period the Company
has relied on Rule 12b-25(b) under the Exchange Act ("Rule 12b-25(b)") with
respect to a report or a portion of a report, that report or portion of a
report has actually been filed within the time period prescribed by Rule
12b-25(b);
(r) Deloitte & Touche, LLP, whose reports on the audited financial
statements of the Company and the Subsidiaries are included as part of the
Registration Statement and Prospectus or are incorporated by reference
therein and any other accounting firm that has certified financial
statements and delivered its reports with respect thereto, are and were
during the periods covered by their reports independent public accountants
as required by the Securities Act;
(s) subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, and except as may
be otherwise stated in the Registration Statement or Prospectus, there has
not been (i) any material adverse change in the assets, operations,
business or condition (financial or otherwise), present or prospective, of
the Company and the Subsidiaries taken as a whole, whether or not arising
in the ordinary course of business, (ii) any transaction, which is material
to the Company and the Subsidiaries taken as a whole, planned or entered
into by the Company or any of the Subsidiaries or (iii) any obligation,
contingent or otherwise, directly or indirectly incurred by the Company or
any of the Subsidiaries, which is material to the Company and the
Subsidiaries taken as a whole;
(t) the authorized shares of Common Stock of the Company,
including the Shares conform in all material respects to the description
thereof contained in the Registration Statement and the Prospectus; the
Company has an authorized, issued and outstanding capitalization as set
forth in the Prospectus under the heading "historical" under the caption
"Capitalization"; immediately after the Closing Time, the Company will have
an authorized, issued and outstanding capitalization as set forth in the
Prospectus under the heading "as adjusted" under the caption
"Capitalization" (subject to the Underwriters' option described in Section
1(b) hereof) and no shares of any other class of Common Shares or preferred
stock will be issued and outstanding. All of the issued and outstanding
shares of Common Stock of the Company have been duly authorized and are
validly issued, fully paid and non-assessable, and have been offered, sold
and issued by the Company in compliance with all applicable laws
(including, without limitation, federal and state securities laws) none of
the issued shares of Common Stock of the Company have been issued in
violation of any preemptive or similar rights granted by the Company;
(u) all of the issued and outstanding membership interests of each
Subsidiary have been duly authorized and are validly issued, fully paid and
non-assessable, and 95% thereof are owned of record and beneficially by the
Company, and have been offered, sold and issued by the Subsidiaries in
compliance with all applicable laws (including, but not limited to, federal
and state securities laws); none of the issued shares of capital stock of
the Subsidiaries have been issued in violation of any preemptive or similar
rights;
(v) the Common Stock is an "actively-traded security" excepted
from the requirements of Rule 101 of Regulation M under the Exchange Act by
subsection (c)(1) of such rule;
(w) except as disclosed in the Prospectus, there are no
outstanding (i) securities or obligations of the Company or any of its
Subsidiaries convertible into or exchangeable for any capital stock of the
Company or any such Subsidiary, (ii) warrants, rights or options to
subscribe for or purchase from the Company or any such Subsidiary any such
capital stock or any such convertible or exchangeable securities or
obligations, or (iii) obligations of the Company or any such Subsidiary to
issue any shares of capital stock, any such convertible or exchangeable
securities or obligation, or any such warrants, rights or options;
(x) each of the Company, the Subsidiaries, and each of their
respective officers, directors and controlling persons has not taken, and
will not take, directly or indirectly, any action which is designed to or
which has constituted or which might reasonably be expected to cause or
result in stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Shares;
(y) the Company (i) is not required to register as a "broker" or
"dealer" in accordance with the provisions of the Exchange Act, and (ii)
directly, or indirectly through one or more intermediaries, does not
control any member firm of the National Association of Securities Dealers,
Inc. (the "NASD");
(z) the Company has not relied upon the Underwriters or legal
counsel for the Underwriters for any legal, tax or accounting advice in
connection with the offering and sale of the Shares;
(aa) any certificate signed by any officer of the Company or any
Subsidiary delivered to the Underwriters or to counsel for the Underwriters
pursuant to or in connection with this Agreement shall be deemed a
representation and warranty by the Company to the Underwriters as to the
matters covered thereby;
(bb) there are no statutes or regulations applicable to the
Company or any of the Subsidiaries or certificates, permits or other
authorizations from governmental regulatory officials or bodies required to
be obtained or maintained by the Company or any of the Subsidiaries of a
character required to be disclosed in the Registration Statement or the
Prospectus which have not been so disclosed and properly described therein;
all agreements between the Company or any of the Subsidiaries and third
parties expressly referenced in the Prospectus are legal, valid and binding
obligations of the Company or one or more of the Subsidiaries, enforceable
in accordance with their respective terms, except to the extent
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' rights generally and by
general principles of equity;
(cc) no relationship, direct or indirect, exists between or among
the Company or any of the Subsidiaries, on the one hand, and the directors,
officers, shareholders, customers or suppliers of the Company, the
Subsidiaries or the Manager, on the other hand, which is required by the
Securities Act to be described in the Registration Statement and the
Prospectus that is not so described;
(dd) with such exceptions as could not reasonably be expected to
have a material adverse effect on the assets, operations, business or
condition (financial or otherwise) of the Company and the Subsidiaries,
taken as a whole, the Company and the Subsidiaries have good and marketable
title in fee simple to all real property, if any, and good title to all
personal property owned by them, in each case free and clear of all liens,
security interests, pledges, charges, encumbrances, mortgages and defects,
except such as are disclosed in the Prospectus or such as do not materially
and adversely affect the value of such property and do not interfere with
the use made or proposed to be made of such property by the Company and the
Subsidiaries; and any real property and buildings held under lease by the
Company or any Subsidiary are held under valid, existing and enforceable
leases, with such exceptions as are disclosed in the Prospectus or are not
material and do not interfere with the use made or proposed to be made of
such property and buildings by the Company or such Subsidiary;
(ee) the Company and each Subsidiary owns or possesses adequate
license or other rights to use all patents, trademarks, service marks,
trade names, copyrights, software and design licenses, trade secrets,
manufacturing processes, and other intangible property rights
(collectively, "Intangibles") necessary to entitle the Company and each
Subsidiary to conduct its business as described in the Prospectus, and
neither the Company, nor any Subsidiary, has received notice of
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 which could materially and adversely affect the business,
prospects, properties, assets, results of operations or condition
(financial or otherwise) of the Company or any Subsidiary;
(ff) the Company and each of its Subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurance
that (i) transactions are executed in accordance with management's general
or specific authorizations; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles as applied in the United States and to
maintain asset accountability; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and (iv)
the recorded accountability for assets is compared with the existing assets
at reasonable intervals and appropriate action is taken with respect to any
differences;
(gg) each of the Company and the Subsidiaries have filed on a
timely basis all material federal, state, local and foreign income and
franchise tax returns required to be filed through the date hereof and have
paid all taxes shown as due thereon; and no tax deficiency has been
asserted against any such entity, nor does any such entity know of any tax
deficiency which is likely to be asserted against any such entity which if,
determined adversely to any such entity, could materially adversely affect
the business, prospects, properties, assets, results of operations or
condition (financial or otherwise) of any such entity, respectively; all
tax liabilities are adequately provided for on the respective books of such
entities;
(hh) neither the Company nor any of the Subsidiaries nor, to the
best of the Company's knowledge, any officer or director purporting to act
on behalf of the Company or any of the Subsidiaries has at any time; (i)
made any contributions to any candidate for political office, or failed to
disclose fully any such contributions, in violation of law, (ii) made any
payment to any state, federal or foreign governmental officer or official,
or other person charged with similar public or quasi-public duties, other
than payments required or allowed by applicable law, (iii) made any payment
outside the ordinary course of business to any investment officer or loan
broker or person charged with similar duties of any entity to which the
Company or any of the Subsidiaries sells or from which the Company or any
of the Subsidiaries buys loans or servicing arrangements for the purpose of
influencing such agent, officer, broker or person to buy loans or servicing
arrangements from or sell loans to the Company or any of the Subsidiaries,
or (iv) engaged in any transactions, maintained any bank account or used
any corporate funds except for transactions, bank accounts and funds which
have been and are reflected in the normally maintained books and records of
the Company and the Subsidiaries;
(ii) except as otherwise disclosed in the Prospectus, there are no
material outstanding loans or advances or material guarantees of
indebtedness by the Company or any of the Subsidiaries to or for the
benefit of any of the officers or directors of the Company or any of the
Subsidiaries or any of the members of the families of any of them;
(jj) neither the Company nor any of the Subsidiaries nor, to the
Company's knowledge, any agent of the Company or any of the Subsidiaries,
has made any payment of funds of the Company or of any Subsidiary or
received or retained any funds in violation of any law, rule or regulation
or of a character required to be disclosed in the Prospectus;
(kk) neither the Company nor any of the Subsidiaries have any
employees;
(ll) (i) the Company is organized in conformity with the
requirements for qualification as a real estate investment trust ("REIT")
under the Internal Revenue Code of 1986, as amended (the "Code"), (ii) the
Company qualified as a REIT for all taxable years prior to 2001, and (iii)
the Company intends to qualify as a REIT for 2001 and subsequent years;
(mm) the Shares have been approved for listing, upon official
notice of issuance, on the New York Stock Exchange;
(nn) in connection with this offering, the Company has not offered
and will not offer shares of its Common Stock or any other securities
convertible into or exchangeable or exercisable for shares of Common Stock
in a manner in violation of the Securities Act; the Company has not
distributed and will not distribute any offering material in connection
with the offer and sale of the Shares, other than the Prospectus,
Registration Statement and other materials permitted by the Securities Act;
(oo) neither the Company nor any of the Subsidiaries is, or solely
as a result of transactions contemplated hereby and the application of the
proceeds from the sale of the Shares, will become, an "investment company"
or a company "controlled" by an "investment company" within the meaning of
the Investment Company Act of 1940, as amended (the "1940 Act"); and
(pp) the Company has not incurred any liability for any finder's
fees or similar payments in connection with the transactions herein
contemplated.
4. Certain Covenants of the Company.
The Company hereby covenants and agrees with the several
Underwriters:
(a) before amending or supplementing the Registration Statement or
the Prospectus, during any period of time in which a Prospectus relating to
the Shares is required to be delivered under the Securities Act, to furnish
to the Underwriters a copy of each such proposed amendment or supplement
before filing any such amendment or supplement with the Commission;
(i) to make no amendment or supplement to the Registration
Statement or the Prospectus (except for required filings
under the Exchange Act) which shall not have been
furnished to the Underwriters with reasonable opportunity
to review and comment thereon;
(ii) to prepare, with respect to any Shares sold by the
Company to the Underwriters pursuant to this Agreement, a
Prospectus Supplement with respect to such Shares in a
form previously approved by the Underwriters and to file
such supplement pursuant to Rule 424(b) under the
Securities Act not later than the close of business of
the Commission on the second business day after the date
on which such supplement is first used;
(iii) to file promptly all reports and any definitive proxy or
information statements required to be filed by the
Company with the Commission pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act for so long as the
delivery of a prospectus is required in connection with
the offering or sale of the Shares, and during such same
period to advise the Underwriters, promptly after the
Company receives notice thereof, of the time when any
amendment to the Registration Statement has been filed or
has become effective or any supplement to the Prospectus
or any amended Prospectus has been filed with the
Commission, or the issuance by the Commission of any stop
order or of any order preventing or suspending the use of
any Prospectus relating to the Shares, or the suspension
of the qualification of the Shares for offering or sale
in any jurisdiction, of the initiation or threatening of
any proceeding for any such purpose, or of any request by
the Commission for the amendment or supplementation of
the Registration Statement or Prospectus or for
additional information;
(iv) in the event of the issuance of any such stop order or of
any such order preventing or suspending the use of any
such prospectus or suspending any such qualification, to
use promptly its best efforts to obtain its withdrawal;
and
(v) to advise the Underwriters promptly of the receipt of any
comments from or any request by the Commission for
amendments or supplements to the Registration Statement
or Prospectus;
(b) to furnish such information as may be required and otherwise
to cooperate in qualifying the Shares for offering and sale under the
securities or blue sky laws of such states as the Underwriters may
designate and to maintain such qualifications in effect as long as
requested by the Underwriters for the distribution of the Shares, provided
that the Company shall not be required to qualify as a foreign corporation
or to consent to the service of process under the laws of any such state
(except service of process with respect to the offering and sale of the
Shares); and to promptly advise the Underwriters of the receipt by the
Company of any notification with respect to the suspension of the
qualification of the Shares for sale in any jurisdiction or the initiation
or threatening of any proceeding for such purpose;
(c) to make available to the Underwriters, as soon as practicable
after the Registration Statement becomes effective, and thereafter from
time to time to furnish to the Underwriters, copies of the Prospectus (or
of the Prospectus as amended or supplemented if the Company shall have made
any amendments or supplements thereto after the effective date of the
Registration Statement) in such quantities and at such locations as the
Underwriters may reasonably request for the purposes contemplated by the
Securities Act, which Prospectus and any amendments or supplements thereto
furnished to the Underwriters will be materially identical to the version
created to be transmitted to the Commission for filing via EDGAR, except to
the extent permitted by Regulation S-T; and for so long as this agreement
is in effect, the Company will prepare and file promptly, subject to
Section 3(a) hereof, such amendment or amendments to the Registration
Statement and the Prospectus as may be necessary to comply with the
requirements of Section 10(a)(3) of the Securities Act;
(d) to furnish to you and upon request to each of the
Underwriters, for a period of two years from the date of this Agreement (i)
as soon as available, copies of all annual, quarterly and current reports
or other communications supplied to holders of shares of Common Stock, (ii)
as soon as practicable after the filing thereof, copies of all reports
publicly filed by the Company with the Commission, the NASD, the New York
Stock Exchange or any securities exchange and (iii) as soon as available,
such other information as the Underwriters may reasonably request regarding
the Company and its Subsidiaries, including, without limitation,
information to enable the Underwriters to update from time to time, as it
deems necessary or appropriate, the Underwriters' due diligence
investigation of the Company and its Subsidiaries;
(e) to advise the Underwriters promptly during any period of time
in which a Prospectus relating to the Shares is required to be delivered
under the Securities Act (i) of any material change in the Company's
assets, operations, business or condition (financial or otherwise) or (ii)
of the happening of any event which would require the making of any change
in the Prospectus then being used so that the Prospectus would not include
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,
in the light of the circumstances under which they were made, not
misleading, or (iii) if it is necessary at any time to amend or supplement
the Prospectus to comply with any law, and, during such time, promptly to
prepare and furnish, at the Company's expense, to the Underwriters copies
of the proposed amendments or supplements to the Prospectus before filing
any such amendment or supplement with the Commission, and thereafter
promptly to furnish at the Company's own expense to the Underwriters and to
dealers, copies in such quantities and at such locations as the
Underwriters may from time to time reasonably request of an appropriate
amendment to the Registration Statement or supplement to the Prospectus so
that the Prospectus as so amended or supplemented will (i) reflect such
change, or (ii) not, in the light of the circumstances when it is so
delivered, be misleading, or (iii) comply with applicable securities laws;
(f) to furnish promptly to the Underwriters a signed copy of the
Registration Statement, as initially filed with the Commission, and of all
amendments or supplements thereto (including all exhibits filed therewith
and documents incorporated by reference therein) and such number of
conformed copies of the foregoing as the Underwriters may reasonably
request;
(g) to apply the net proceeds of the sale of the Shares
substantially in accordance with its statements under the caption "Use of
Proceeds" in the Prospectus;
(h) to use its best efforts to effect and maintain the listing of
the Shares on the New York Stock Exchange and to file with the New York
Stock Exchange all documents and notices required by the New York Stock
Exchange of companies that have securities that are listed on the New York
Stock Exchange;
(i) not to sell, offer or agree to sell, contract to sell, grant
any option to sell or otherwise dispose of, directly or indirectly, any
shares of Common Stock or securities convertible into or exchangeable or
exercisable for Common Stock or warrants or other rights to purchase Common
Stock or any other securities of the Company that are substantially similar
to Common Stock or permit the registration under the Act of any shares of
Common Stock without the prior written consent of UBS Warburg LLC for a
period of 90 days after the Closing Time, except for the registration of
the Shares and the sales to the Underwriters pursuant to this Agreement and
except for (i) issuances of Common Stock upon the exercise of outstanding
options, warrants and debentures, and (ii) shares of Common Stock sold
pursuant to any employee or director stock option or benefits plan or
dividend reinvestment and stock purchase plan of the Company;
(j) shall not, and shall use its best efforts to cause its
officers, directors and affiliates not to, prior to the earlier of the
expiration or the exercise by the Underwriters of the option granted to the
Underwriters by the Company in Section 1(b) of this Agreement, (i) take,
directly or indirectly prior to termination of this Agreement, any action
designed to stabilize or manipulate the price of any security of the
Company, or which could be reasonably likely to cause or result in, or
which could be reasonably likely to in the future to cause or result in,
the stabilization or manipulation of the price of any security of the
Company, to facilitate the sale or resale of any of the Shares, (ii) sell,
bid for, purchase or pay anyone any compensation for soliciting purchases
of the Shares other than pursuant to this Agreement or (iii) pay or agree
to pay to any person any compensation for soliciting any order to purchase
any other securities of the Company;
(k) to maintain, at the Company's expense, a transfer agent and,
if necessary under the jurisdiction of incorporation of the Company, a
registrar (which may be the same entity as the transfer agent) for shares
of its Common Stock;
(l) to use its best efforts to continue to qualify as a REIT under
the Code;
(m) to comply with all of the provisions of any undertakings in
the Registration Statement;
(n) to conduct its affairs in such a manner so as to ensure that
neither the Company nor any Subsidiary will be an "investment company" or
an entity subject to regulation as an investment company within the meaning
of the 1940 Act;
(o) to maintain a system of internal accounting controls
sufficient to provide reasonable assurance that (i) transactions are
executed in accordance with management's general or specific
authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability; (iii) access to
assets is permitted only in accordance with management's general or
specific authorization; and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate
action is taken with respect to any differences;
(p) to use its best efforts to satisfy, or cause to be satisfied,
the conditions set forth in Section 6 hereof on or in respect of the
Closing Time and the Date of Delivery hereunder;
(q) if necessary or appropriate, to file a registration statement
pursuant to Rule 462(b) under the Act;
(r) to make generally available to its security holders, and to
deliver to the Underwriters, an earnings statement of the Company (which
will satisfy the provisions of Section 11(a) of the Act) covering a period
of twelve months beginning after the effective date of the Registration
Statement (as defined in Rule 158(c) of the Act) as soon as is reasonably
practicable after the termination of such twelve-month period but not later
than fifteen months after the end of the Company's current fiscal quarter;
(s) to furnish to its stockholders within 120 days after the end
of each fiscal year, for so long as the Company shall not be required to
file annual and periodic reports with the Commission under the Exchange
Act, audited financial statements (including a balance sheet and statements
of income, stockholders' equity and of cash flow of the Company for such
fiscal year), accompanied by a copy of the certificate or report thereon of
nationally recognized independent certified public accountants; and
(t) to furnish to the Underwriters, before filing with the
Commission subsequent to the effective date of the Registration Statement
and for so long as a prospectus is required to be delivered in connection
with the offering or delivery of the Shares, a copy of any document
proposed to be filed pursuant to Section 13, 14 or 15(d) of the Exchange
Act.
5. Payment of Expenses.
(a) The Company agrees to pay (i) all costs and expenses incident
to the performance of the Company's obligations under this Agreement,
whether or not the transactions contemplated hereunder are consummated or
this Agreement is terminated, including, but not limited to, all fees and
expenses of and filing with the Commission, the New York Stock Exchange and
the NASD; (ii) all Blue Sky fees and expenses (in the United States),
including filing fees and reasonable legal fees and disbursements of the
Underwriters' Blue Sky counsel (for United States Blue Sky), (iii) fees and
disbursements of counsel and accountants for the Company, (iv) printing and
word-processing costs in connection with underwriting documents, the
Agreement Among Underwriters, Blue Sky Memoranda, (v) costs and expenses of
printing and delivery of a reasonable quantity of prospectuses as requested
by the Underwriters, and (vi) the Company's road show costs and expenses.
(b) If this Agreement shall be terminated by the Underwriters
(other than pursuant to Section 8) or the Company for any reason permitted
under this Agreement, or if for any reason the Company shall be unable to
perform its obligations under this Agreement, the Company will reimburse
the Underwriters for all out-of-pocket expenses (such as printing,
facsimile, courier service, accommodations, travel and the reasonable fees
and disbursements of Underwriters' counsel) reasonably incurred by the
Underwriters in connection with this Agreement or the transactions
contemplated herein.
6. Conditions to the Underwriters' Obligations.
The obligations of the several Underwriters hereunder are subject
to (i) the accuracy of the representations and warranties on the part of
the Company in all material respects on the date hereof, at the Closing
Time and on the Date of Delivery, (ii) the performance by the Company of
its obligations hereunder in all material respects, and (iii) the following
further conditions:
(a) If, at the time this Agreement is executed and delivered, it
is necessary for a post-effective amendment to the Registration Statement
to be declared effective before the offering of the Shares may commence,
such post-effective amendment shall have become effective not later than
5:30 p.m., New York City time, on the date hereof, or at such later date
and time as shall be consented to in writing by the Underwriters.
(b) The Company shall furnish to the Underwriters at the Closing
Time and on the Date of Delivery an opinion of Skadden, Arps, Slate,
Meagher & Flom LLP, special counsel for the Company, addressed to the
Underwriters and dated the Closing Time and the Date of Delivery and in
form and substance satisfactory to the Underwriters, opining as to the
matters set forth in Exhibit A hereto.
(c) The Company shall furnish to the Underwriters at the Closing
Time and on the Date of Delivery an opinion of Miles & Stockbridge, P.C.,
special counsel for the Company, addressed to the Underwriters and dated
the Closing Time and the Date of Delivery and in form and substance
satisfactory to the Underwriters, covering matters of Maryland law and
opining as to the matters set forth in Exhibit B hereto.
(d) The Underwriters shall have received from Deloitte & Touche
LLP, letters dated, respectively, as of the date of this Agreement, the
Closing Time and the Date of Delivery addressed to the Underwriters and in
form and substance satisfactory to the Underwriters.
(e) The Underwriters shall have received the favorable opinion of
Sullivan & Cromwell, counsel for the Underwriters, dated the Closing Time
and the Date of Delivery, addressed to the Underwriters and in form and
substance satisfactory to the Underwriters.
(f) The Company shall furnish at the Closing Time evidence
reasonably satisfactory to the Underwriters and their counsel that the
Registration Statement shall have become effective.
(g) No amendment or supplement to the Registration Statement or
Prospectus, including documents incorporated by reference therein, shall
have been filed to which the Underwriters shall have objected in writing.
(h) Prior to the date of this Agreement, the Closing Time and the
Date of Delivery (i) no stop order suspending the effectiveness of the
Registration Statement or any post-effective amendment thereto, and no
order directed at any document incorporated by reference therein and no
order preventing or suspending the use of any Prospectus has been issued by
the Commission, and no suspension of the qualification of the Shares for
offering or sale in any jurisdiction, or of the initiation or threatening
of any proceedings for any of such purposes, has occurred; (ii) the
Registration Statement and all amendments thereto shall not contain an
untrue statement of material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, not
misleading; and (iii) the Prospectus and all amendments or supplements
thereto, or modifications thereof, if any, shall not contain an 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, in the light
of the circumstances under which they are made, not misleading.
(i) At the Closing Time, the NASD shall not have raised any
objections with respect to the fairness and reasonableness of the
underwriting terms and arrangements.
(j) At the Closing Time, the Shares shall have been approved for
listing on the New York Stock Exchange.
(k) At the Closing Time and the Date of Delivery, the Company will
deliver to the Underwriters a certificate of two principal executive
officers of the Company certifying to the matters set forth in Exhibit C.
(l) At the Closing Time and the Date of Delivery the Company shall
have furnished to the Underwriters such other documents and certificates as
to the accuracy and completeness of any statement in the Registration
Statement and the Prospectus, the representations, warranties and statement
of the Company contained herein, and the performance by the Company of its
covenants contained herein, and the fulfillment of any conditions contained
herein, as of the date of this Agreement as the Underwriters may reasonably
request.
(m) At the Closing Time and each Date of Delivery the Manager
shall have furnished the Underwriters such documents and certificates as of
the date of this Agreement as the Underwriters may reasonably request,
including the certificate attached as Exhibit D hereto (the "Manager's
Representation Letter").
(n) All filings with the Commission required by Rule 424 under the
Securities Act to have been filed by the Closing Time or the Date of
Delivery, as the case may be, shall have been made within the applicable
time period prescribed for such filing by such Rule.
(o) At the Closing time, the Underwriters shall have received
Lock-Up Agreements in the form set forth on Exhibit E hereto from each
person listed on Schedule II hereto.
(p) Between the time of execution of this Agreement and the
Closing Time or the Date of Delivery there shall not have occurred any
downgrading, or any notice or announcement shall have been given or made of
(i) any intended or potential downgrading or (ii) any review or possible
change that does not indicate an improvement, in the rating accorded any
securities of or guaranteed by the Company or any Subsidiary by any
"nationally recognized statistical rating organization", as that term is
defined in Rule 436(g)(2) under the Act.
(q) The Company shall perform such of its obligations under this
Agreement as are to be performed by the terms hereof at or before the
Closing Time or the Date of Delivery.
The obligations of the several Underwriters to purchase Optional
Shares hereunder are subject to the delivery to the Underwriters on the
Date of Delivery of such documents as the Underwriters may reasonably
request with respect to the good standing of the Company, the due
authorization and issuance of the Optional Shares and other matters related
to the issuance of the Optional Shares.
7. Effective Date of Agreement; Termination.
This Agreement shall become effective when the parties hereto have
executed and delivered this Agreement.
The obligations of the several Underwriters hereunder shall be
subject to termination at any time in the absolute discretion of you or any
group of the Underwriters (which may include you) which has agreed to
purchase in the aggregate at least 50% of the Initial Shares, (i) if any of
the conditions specified in Section 6 shall not have been fulfilled when
and as required by this Agreement to be fulfilled, or (ii) if there has
been since the respective dates as of which information is given in the
Registration Statement or incorporated therein by reference, any material
adverse change, or any development involving a prospective material adverse
change, in or affecting the assets, operations, business or condition
(financial or otherwise) of the Company and its Subsidiaries taken as a
whole, whether or not arising in the ordinary course of business, or (iii)
if there has occurred outbreak or escalation of hostilities or other
national or international calamity or crisis or change in economic,
political or other conditions the effect of which on the financial markets
of the United States is such as to make it, in your judgment or the
judgment of such group of Underwriters, impracticable to market or deliver
the Shares or enforce contracts for the sale of the Shares, or (iv) if
trading in any securities of the Company has been suspended by the
Commission or by the New York Stock Exchange or if trading generally on the
New York Stock Exchange or in the Nasdaq over-the-counter market has been
suspended (including automatic halt in trading pursuant to market-decline
triggers other than those in which solely program trading is temporarily
halted), or limitations on prices for trading (other than limitations on
hours or numbers of days of trading) have been fixed, or maximum ranges for
prices for securities have been required, by such exchange or the NASD or
by order of the Commission or any other governmental authority, or (v) if
there has been any downgrading in the rating of any of the Company's debt
securities or preferred stock by any "nationally recognized statistical
rating organization" (as defined for purposes of Rule 436(g) under the
Securities Act), or (vi) any federal or state statute, regulation, rule or
order of any court or other governmental authority has been enacted,
published, decreed or otherwise promulgated which in your reasonable
opinion or the reasonable opinion of such group of Underwriters has a
material adverse affect or will have a material adverse affect on the
assets, operations, business or condition (financial or otherwise) of the
Company and its Subsidiaries taken as a whole, or (vii) any action has been
taken by any federal, state or local government or agency in respect of its
monetary or fiscal affairs which in your reasonable opinion or the
reasonable opinion of such group of Underwriters has a material adverse
effect on the securities markets in the United States, and in the case of
any of the events specified in clauses (i) through (vii), such event,
singly or together with any other such events, makes it, in the judgment of
the Underwriters, impracticable or inadvisable to market or deliver the
Shares on the terms and in the manner contemplated in the Prospectus.
If you or any group of Underwriters elects to terminate this
Agreement as provided in this Section 7, the Company shall be notified
promptly by telephone, which notice shall be promptly confirmed by
facsimile.
If the sale to the several Underwriters of the Shares, as
contemplated by this Agreement, is not carried out by the Underwriters for
any reason permitted under this Agreement or if such sale is not carried
out because the Company shall be unable to comply in all material respects
with any of the terms of this Agreement, the Company shall not be under any
obligation or liability under this Agreement (except to the extent provided
in Sections 5 and 9 hereof) and the Underwriters shall be under no
obligation or liability to the Company under this Agreement (except to the
extent provided in Section 9 hereof) or to one another hereunder.
8. Increase in Underwriters' Commitments.
Subject to Sections 6 and 7, if any Underwriter shall default in
its obligation to take up and pay for the Initial Shares to be purchased by
it hereunder (otherwise than for reasons sufficient to justify the
termination of this Agreement under the provisions of Section 7 hereof) and
if the number of Initial Shares which all Underwriters so defaulting shall
have agreed but failed to take up and pay for does not exceed 10% of the
total number of Initial Shares, the non-defaulting Underwriters shall take
up and pay for (in addition to the number of Initial Shares they are
obligated to purchase pursuant to Section 1 hereof) the number of Initial
Shares agreed to be purchased by all such defaulting Underwriters, as
hereinafter provided. Such Shares shall be taken up and paid for by such
non-defaulting Underwriter or Underwriters in such amount or amounts as the
Underwriters may designate with the consent of each Underwriter so
designated or, in the event no such designation is made, such Shares shall
be taken up and paid for by all non-defaulting Underwriters pro rata in
proportion to the aggregate number of Initial Shares set opposite the names
of such non-defaulting Underwriters in Schedule A hereto.
Without relieving any defaulting Underwriter from its obligations
hereunder, the Company agrees with the non-defaulting Underwriters that it
will not sell any Initial Shares hereunder unless all of the Initial Shares
are purchased by the Underwriters (or by substituted Underwriters selected
by you with the approval of the Company or selected by the Company with
your approval).
If a new Underwriter or Underwriters are substituted by the
Underwriters or by the Company for a defaulting Underwriter or Underwriters
in accordance with the foregoing provision, the Company or you shall have
the right to postpone the time of purchase for a period not exceeding five
business days in order that any necessary changes in the Registration
Statement and Prospectus and other documents may be effected.
The term Underwriter as used in this agreement shall refer to and
include any Underwriter substituted under this Section 8 with like effect
as if such substituted Underwriter had originally been named in Schedule A.
If the aggregate number of Shares which the defaulting Underwriter
or Underwriters agreed to purchase exceeds 10% of the total number of
Shares which all Underwriters agreed to purchase hereunder, and if neither
the non-defaulting Underwriters nor the Company shall make arrangements
within the five business day period stated above for the purchase of all
the Shares which the defaulting Underwriter or Underwriters agreed to
purchase hereunder, this Agreement shall be terminated without further act
or deed and without any liability on the part of the Company to any
non-defaulting Underwriter and without any liability on the part of any
non-defaulting Underwriter to the Company. Nothing in this paragraph, and
no action taken hereunder, shall relieve any defaulting Underwriter from
liability in respect of any default of such Underwriter under this
Agreement.
9. Indemnity and Contribution by the Company and the Underwriters.
(a) The Company agrees to indemnify, defend and hold harmless each
Underwriter, it's partners, directors and officers and any person who
controls such Underwriter within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, and the successors and
assigns of all the foregoing persons from and against any loss, expense,
liability, damage or claim (including the reasonable cost of investigation)
which, jointly or severally, such Underwriter or any such person may incur
under the Securities Act, the Exchange Act, the common law or otherwise,
insofar as such loss, expense, liability, damage or claim arises out of or
is based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement (or in the
Registration Statement as amended by any post-effective amendment thereof
by the Company) or in a Prospectus (the term Prospectus for the purpose of
this Section 9 being deemed to include any Preliminary Prospectus, the
Prospectus and the Prospectus as amended or supplemented by the Company),
or arises out of or is based upon any omission or alleged omission to state
a material fact required to be stated in either such Registration Statement
or Prospectus or necessary to make the statements made therein, not
misleading, except insofar as any such loss, expense, liability, damage or
claim arises out of or is based upon any untrue statement or alleged untrue
statement or omission or alleged omission of a material fact contained in
and in conformity with information furnished in writing by any Underwriter
through you to the Company expressly for use with reference to such
Underwriter in such Registration Statement or such Prospectus, provided,
however, that the indemnity agreement contained in this Section 9(a) with
respect to the Prospectus shall not inure to the benefit of an Underwriter
(or to the benefit of any person controlling the Underwriter) with respect
to any person asserting any such loss, expense, liability, damage or claim
which is the subject thereof if the Prospectus or any supplement thereto
prepared with the consent of the underwriter and furnished to the
Underwriter a reasonable time prior to the furnishing of written
confirmation of the sale of Shares to such person corrected any such
alleged untrue statement or omission and if the Underwriter failed to send
or give a copy of the Prospectus or supplement thereto to such person at or
prior to the written confirmation of the sale of Shares to such person,
unless the failure is the result of noncompliance by the Company with
paragraph (e) of Section 4 hereof.
If any action, suit or proceeding (each, a "Proceeding") is
brought against an Underwriter or any such person in respect of which
indemnity may be sought against the Company pursuant to the preceding
paragraph, such Underwriter or such person shall promptly notify the
Company in writing of the institution of such Proceeding and the Company
shall assume the defense of such Proceeding, including the employment of
counsel reasonably satisfactory to such indemnified party and payment of
all fees and expenses, provided, however, that any failure or delay to so
notify the Company will not relieve the Company of any obligation
hereunder. Such Underwriter or such person shall have the right to employ
its or their own counsel in any such case, but the fees and expenses of
such counsel shall be at the expense of such Underwriter or such person
unless the employment of such counsel shall have been authorized in writing
by the Company in connection with the defense of such Proceeding or the
Company shall not have employed counsel to have charge of the defense of
such Proceeding within a reasonable time or such indemnified party or
parties shall have reasonably concluded (based on the advice of counsel)
that there may be defenses available to it or them which are different
from, additional to or in conflict with those available to the Company or
which counsel to such Underwriter believes may present a conflict for
counsel representing the Company and such Underwriter (in which case the
Company shall not have the right to direct the defense of such action on
behalf of the indemnified party or parties), in any of which events such
fees and expenses shall be borne by the Company and paid as incurred (it
being understood, however, that the Company shall not be liable for the
expenses of more than one separate firm of attorneys in any one Proceeding
or series of related Proceedings in the same jurisdiction (other than local
counsel in such jurisdiction) representing the indemnified parties who are
parties to such Proceeding). Anything in this paragraph to the contrary
notwithstanding, the Company shall not be liable for any settlement of any
such Proceeding effected without its written consent, but if settled with
the written consent of the Company, the Company agrees to indemnify and
hold harmless such Underwriter and any such person from and against any
loss or liability by reason of such settlement. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have
requested an indemnifying party to reimburse the indemnified party for fees
and expenses of counsel as contemplated by the second sentence of this
paragraph, then the indemnifying party agrees that it shall be liable for
any settlement of any Proceeding effected without its written consent if
(i) such settlement is entered into more than 60 business days after
receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall not have reimbursed the indemnified party in
accordance with such request before the date of such settlement and (iii)
such indemnified party shall have given the indemnifying party at least 30
days' prior notice of its intention to settle. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened Proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have
been sought hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such Proceeding and does
not include an admission of fault, culpability or a failure to act, by or
on behalf of such indemnified party.
(b) Each Underwriter agrees, severally and not jointly, to
indemnify, defend and hold harmless the Company, its partners, directors
and officers, the officers that signed the Registration Statement and any
person who controls the Company within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act and the successors and
assigns of all the foregoing persons from and against any loss, expense,
liability, damage or claim (including the reasonable cost of investigation)
which, jointly or severally, the Company or any such person may incur under
the Securities Act, the Exchange Act, the common law or otherwise, but only
insofar as such loss, expense, liability, damage or claim arises out of or
is based upon any untrue statement or alleged untrue statement of a
material fact contained in and in conformity with information furnished in
writing by the Underwriters to the Company expressly for use in the
Registration Statement (or in the Registration Statement as amended by any
post-effective amendment thereof by the Company) or in a Prospectus, or
arises out of or is based upon any omission or alleged omission to state a
material fact in connection with such information required to be stated
either in the Registration Statement or Prospectus or necessary to make
such information not misleading.
If any Proceeding is brought against the Company or any such
person in respect of which indemnity may be sought against any Underwriter
pursuant to the foregoing paragraph, the Company or such person shall
promptly notify such Underwriter in writing of the institution of such
Proceeding and such Underwriter, shall assume the defense of such
Proceeding, including the employment of counsel reasonably satisfactory to
such indemnified party and payment of expenses, provided, however, that the
omission to so notify such Underwriter shall not relieve such Underwriter
from any liability which such Underwriter may have to the Company or any
such person or otherwise. The Company or such person shall have the right
to employ its own counsel in any such case, but the fees and expenses of
such counsel shall be at the expense of the Company or such person unless
the employment of such counsel shall have been authorized in writing by
such Underwriter in connection with the defense of such Proceeding or such
Underwriter shall not have employed counsel to have charge of the defense
of such action within a reasonable time or such indemnified party or
parties shall have reasonably concluded (based on the advice of counsel)
that there may be defenses available to it or them which are different
from, additional to or in conflict with those available to such Underwriter
(in which case such Underwriter shall not have the right to direct the
defense of such action on behalf of the indemnified party or parties but
such Underwriter may employ counsel and participate in the defense thereof
by the fees and expenses of such counsel shall be at the expense of such
Underwriter), in any of which events such fees and expenses shall be borne
by such Underwriter and paid as incurred (it being understood, however,
that such Underwriter shall not be liable for the expenses of more than one
separate firm of attorneys in any one Proceeding or series of related
Proceedings in the same jurisdiction (other than local counsel or such
jurisdiction) representing the indemnified parties who are parties to such
action). Anything in this paragraph to the contrary notwithstanding, no
Underwriter shall be liable for any settlement of any such claim or action
effected without the written consent of such Underwriter but if settled
with the written consent of such Underwriter, such Underwriter agrees,
severally and not jointly, to indemnify and hold harmless the Company and
any such person from and against any loss or liability by reason of such
settlement. Notwithstanding the foregoing sentence, if at any time any
indemnified party shall have requested an indemnifying party to reimburse
the indemnified party for fees and expenses of counsel as contemplated by
the second sentence of this paragraph, then the indemnifying party agrees
that it shall be liable for any settlement of any Proceeding effected
without its written consent if (i) such settlement is entered into more
than 60 business days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall not have reimbursed
the indemnified party in accordance with such request before the date of
such settlement and (iii) such indemnified party shall have the
indemnifying party at least 30 days' prior notice of its intention to
settle. No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
Proceeding in respect of which any indemnified party is or could have been
a party and indemnify could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liabilities or claims that are the subject
matter of such Proceeding.
(c) If the indemnification provided for in this Section 9 is
unavailable to or insufficient to hold harmless an indemnified party under
subsections (a) and (b) of this Section 9 in respect of any losses,
expenses, liabilities, damages or claims referred to therein, then each
applicable indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, expenses, liabilities, damages or claims
(i) in such proportion as is appropriate to reflect the relative benefits
received by the Company on the one hand and the Underwriters on the other
hand from the offering of the Shares or (ii) if (but only if) the
allocation provided by clause (i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
Company on the one hand and of the Underwriters on the other in connection
with the statements or omissions which resulted in such losses, expenses,
liabilities, damages or claims, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one
hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total proceeds from the offering (net of underwriting
discounts and commissions but before deducting expenses) received by the
Company and the total underwriting commissions received by the
Underwriters, bear to the aggregate public offering price of the Shares.
The relative fault of the Company on the one hand and of the Underwriters
on the other shall be determined by reference to, among other things,
whether the untrue statement or alleged untrue statement of a material fact
or omission or alleged omission relates to information supplied by the
Company or by the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement
or omission. The amount paid or payable by a party as a result of the
losses, claims, damages and liabilities referred to above shall be deemed
to include any legal or other fees or expenses reasonably incurred by such
party in connection with investigating, preparing to defend or defending
any Proceeding.
(d) The Company and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 9 were
determined by pro rata allocation or by any other method of allocation
which does not take account of the equitable considerations referred to in
subsection (c)(i) and, if applicable (ii), above. Notwithstanding the
provisions of this Section 9, no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at
which the Shares underwritten by such Underwriter and distributed to the
public were offered to the public exceeds the amount of damages that it has
been required to pay by reason of such untrue or alleged untrue statement,
or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities
Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. The Underwriters' obligations under
this Section 9 to contribute are several in proportion to their respective
underwriting obligations and not joint.
10. Survival.
The indemnity and contribution agreements contained in Section 9
and the covenants, warranties and representations of the Company contained
in this Agreement shall remain in full force and effect regardless of any
investigation made by or on behalf of any Underwriter, its directors or
officers, or any person who controls any Underwriter within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act, or by
or on behalf of the Company, its directors and officers or any person who
controls the Company within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act, and shall survive any termination of
this Agreement or the sale and delivery of the Shares. The Company and each
Underwriter agree promptly to notify each other of the commencement of any
Proceeding against it and, in the case of the Company, against any of the
Company's officers and directors, in connection with the sale and delivery
of the Shares, or in connection with the Registration Statement or
Prospectus.
11. Notices.
All notices hereunder shall be in writing and delivered by hand,
overnight courier, mail or facsimile, and if to the Underwriters, shall be
sufficient in all respects if delivered to UBS Warburg LLC, 299 Park
Avenue, New York, N.Y. 10171-0026, Attention: Syndicate Department, and if
to the Company, shall be sufficient in all respects if delivered or sent to
the Company at the offices of the Company at 345 Park Avenue, 29th floor,
New York, NY 10154, Attention: Richard Shea.
12. Governing Law; Consent to Jurisdiction; Headings.
This Agreement and any claim, counterclaim or dispute of any kind
or nature whatsoever arising out of or in any way relating to this
Agreement ("Claim"), directly or indirectly, shall be governed by, and
construed in accordance with, the laws of the State of New York. Except as
set forth below, no Claim may be commenced, prosecuted or continued in any
court other than the courts of the State of New York located in the City
and County of New York or in the United States District Court for the
Southern District of New York, which courts shall have jurisdiction over
the adjudication of such matters, and the Company consents to the
jurisdiction of such courts and personal service with respect thereto. The
Company hereby consents to personal jurisdiction, service and venue in any
court in which any Claim arising out of or in any way relating to this
Agreement is brought by any third party against the Underwriters or any
indemnified party. Each of the Underwriters and the Company (on its behalf
and, to the extent permitted by applicable law, on behalf of its
stockholders and affiliates) waive all right to trial by jury in any
action, proceeding or counterclaim (whether based upon contract, tort or
otherwise) in any way arising out of or relating to this Agreement. The
Company agrees that a final judgment in any such action, proceeding or
counterclaim brought in any such court shall be conclusive and binding upon
the Company and may be enforced in any other courts in the jurisdiction of
which the Company is or may be subject, by suit upon such judgment.
The section headings in this Agreement have been inserted as a
matter of convenience of reference and are not a part of this Agreement.
13. Parties in Interest.
The Agreement herein set forth has been and is made solely for the
benefit of the several Underwriters, the Company and the controlling
persons, directors and officers referred to in Sections 9 and 10 hereof,
and their respective successors, assigns, executors and administrators. No
other person, partnership, association or corporation (including a
purchaser, as such purchaser, from any Underwriter) shall acquire or have
any right under or by virtue of this Agreement.
14. Counterparts and Facsimile Signatures.
This Agreement may be signed by the parties in counterparts which
together shall constitute one and the same agreement among the parties. A
facsimile signature shall constitute an original signature for all
purposes.
15. Miscellaneous.
UBS Warburg LLC, as an Underwriter, represents and warrants to the
Company that:
(a) it is an indirect, wholly owned subsidiary of UBS AG, is not a
bank and is separate from any affiliated bank, including any U.S. branch or
agency of UBS AG; because UBS Warburg LLC is a separately incorporated
entity, it is solely responsible for its own contractual obligations and
commitments, including obligations with respect to sales and purchases of
securities; securities sold, offered or recommended by UBS Warburg LLC are
not deposits, are not insured by the Federal Deposit Insurance Corporation,
are not guaranteed by a branch or agency of UBS AG, and are not otherwise
an obligation or responsibility of a branch or agency of UBS AG;
(b) a lending affiliate of UBS Warburg LLC may have lending
relationships with issuers of securities underwritten or privately placed
by UBS Warburg LLC; to the extent required under the securities laws,
prospectuses and other disclosure documents for securities underwritten or
privately placed by UBS Warburg LLC will disclose the existence of any such
lending relationships and whether the proceeds of the issue will be used to
repay debts owed to affiliates of UBS Warburg LLC; and
(c) UBS Warburg LLC and one or more of its affiliates may make
markets in the Common Stock or other securities of the Company, in
connection with which they may buy and sell, as agent or principal, for
long or short account, shares of Common Stock or other securities of the
Company, at the same time that UBS Warburg LLC is acting as an Underwriter
pursuant to this Agreement.
If the foregoing correctly sets forth the understanding among the
Company and the several Underwriters, please so indicate in the space
provided below for the purpose, whereupon this Agreement shall constitute a
binding agreement among the Company and the several Underwriters.
Very truly yours,
ANTHRACITE CAPITAL, INC.
By: /s/Richard Shea
_______________________________
Richard Shea
Chief Financial Officer and
Chief Operating Officer
Accepted and agreed to as of the
date first above written, on behalf
of itself and the several Underwriters
named in Schedule A hereto:
UBS WARBURG LLC
FRIEDMAN, BILLINGS, RAMSEY & CO., INC.
ABN AMRO ROTHSCHILD LLC
By: /s/Jonathan P. Dever
_______________________
Jonathan P. Dever
Director
By: /s/William Nook
_______________________
William Nook
Associate Director
Schedule A
Number of
Underwriter Initial Shares
----------- --------------
UBS Warburg LLC 2,042,500
Friedman, Billings, 1,225,500
Ramsey & Co., Inc.
ABN Amro Rothschild LLC 817,000
A.G. Edwards & Sons, Inc. 75,000
Legg Mason Wood Walker,
Incorporated 75,000
First Union Securities, Inc. 75,000
Flagstone Securities, LLC 30,000
Hilliard Lyons Inc. 30,000
Jolson Merchant Partners 30,000
----------
4,400,000
Schedule I
Subsidiaries of the Company
Anthracite Funding, LLC
Anthracite Funding ML, LLC
Schedule II
Lock-Up Agreements
Hugh Frater
Richard Shea
Chris Milner
Mark Warner
Dan Sefcik
Alex Zabik
Robert Friedberg
David M. Applegate
Donald G. Drapkin
Laurence D. Fink
Carl F. Geuther
Jeffrey C. Keil
Leon T. Kendall
Andrew P. Rifkin
Kendrick R. Wilson III
Exhibit A
Opinion of Counsel for the Company
(i) The Company is authorized to do business as a foreign corporation
under the laws of the State of New York.
(ii) Anthracite Funding ML, LLC has been duly formed and is in good
standing under the laws of the State of Delaware.
(iii) Anthracite Funding ML, LLC has been duly formed and is in good
standing under the laws of the State of Delaware.
(iv) The execution and delivery by the Company of the Underwriting
Agreement and the performance by the Company of its obligations
thereunder, the compliance by the Company with the provisions
thereof, and the consummation by the Company of the transactions
contemplated thereby, do not (A) constitute a violation of or a
default under any Applicable Contract, (B) result in the creation
of any lien or encumbrance upon any of the property of the Company
pursuant to any Applicable Contract (except that with respect to
the foregoing clauses (A) and (B), we do not express an opinion as
to any covenant, restriction or provision of any Applicable
Contract with respect to financial ratios or tests or any aspect
of the financial condition or results of operations of the
Company), or (C) contravene any provision of any Applicable Law or
any Applicable Order.
(v) The Company is not and solely giving effect to the application of
the proceeds as described under the caption "Use of Proceeds" in
the Prospectus will not be required to be registered as an
"investment company," as such term is defined in the Investment
Company Act of 1940, as amended.
(vi) The Registration Statement, at the time it became effective, and
the Prospectus, as of the date of the Prospectus Supplement,
excluding the documents incorporated by reference therein (the
"Incorporated Documents"), appeared on their face to be
appropriately responsive in all material respects to the
requirements of the Securities Act and the rules of and
regulations promulgated thereunder, except that in each case we do
not express any opinion as to the financial statements and
schedules and other financial or statistical data included or
incorporated by reference therein or excluded therefrom, or the
exhibits thereto, and, we do not assume any responsibility for the
accuracy, completeness or fairness of the statements contained or
incorporated by reference in the Registration Statement or the
Prospectus.
(vii) No Government Approval, which has not been obtained or taken and
is not in full force and effect, is required to authorize, or is
required in connection with, the execution or delivery of the
Underwriting Agreement by the Company or the consummation by the
Company of the transactions contemplated thereby.
(viii) None of the actions, suits or proceedings, inquiries or
investigations pending or threatened against the Company,
Anthracite Funding ML, LLC or Anthracite Funding LLC, which are
listed on Exhibit __, and identified to us by the Company,
Anthracite Funding ML, LLC and Anthracite Funding, LLC as all of
the actions, suits or proceedings, inquiries or investigations
pending or threatened against the Company, Anthracite Funding ML,
LLC and Anthracite Funding LLC or to which the properties, assets
or rights of any such entity are subject, at law or in equity,
before any federal state, local or foreign governmental or
regulatory commission board, body, authority, arbitral panel or
agency are required to be described in the Prospectus but are not
so described.
(ix) Provided that the Company makes all elections and conforms with
the procedural steps required for qualification and taxation as a
real estate investment trust ("REIT"), beginning with its taxable
year ending December 31, 2000, the Company has been organized in
conformity with the requirements for qualification as a REIT under
the Internal Revenue Code of 1986, as amended (the "Code"), and
the Company's proposed method of operation will enable it to meet
the requirements for qualification and taxation as a REIT under
the Code. Insofar as the descriptions of the law contained in the
Registration Statement under the caption "Federal Income Tax
Consequences" purports to describe the federal income tax
consequences to a holder of shares of Common Stock, the
descriptions fairly summarize such consequences in all material
respects. The Company's qualification and taxation as a REIT
depends upon its ability to meet through actual annual operating
results, certain requirements including requirements relating to
distribution levels and diversity of stock ownership, and the
various qualification tests imposed under the Code, the results of
which will not be reviewed by us. Accordingly, no assurance can be
given that the actual results of the Company's operation for any
one taxable year will enable the Company to satisfy the
requirements for qualification and taxation as a REIT under the
Code.
In addition, we have participated in conferences with officers and
other representatives of the Company and the Manager, counsel for the
Company, representatives of the independent accountants of the Company and
you at which the contents of the Registration Statement and the Prospectus
and related matters were discussed. We did not participate in the
preparation of the Incorporated Documents but have, however, reviewed such
documents and discussed the business and affairs of the Company with
officers and other representatives of the Company. Although we are not
passing upon, and do not assume any responsibility for, the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or the Prospectus and have made no independent check or
verification thereof, on the basis of the foregoing, no facts have come to
our attention that have led us to believe that the Registration Statement,
at the time it became effective, contained an untrue statement of a
material fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not misleading or that
the Prospectus, as of the date of the Prospectus Supplement and as of the
date hereof, contained or contains an untrue statement of a material fact
or omitted or omits to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were
made, not misleading, except that we express no opinion or belief with
respect to the financial statements, schedules and other financial or
statistical data included therein or incorporated by reference or excluded
therefrom or the exhibits to the Registration Statement.
Definitions:
"Applicable Contracts" means those agreements or instruments set
forth on Exhibit __ hereto.
"Applicable Laws" mean the General Corporation law of the State of
Delaware and those laws, rules and regulations of the State of New York and
the federal laws of the United States of America, in each case, which, in
our experience, are normally applicable to transactions of the type
contemplated by the Underwriting Agreement (other than the United States
federal securities laws, state and foreign securities or blue sky laws,
antifraud laws and the rules and regulations of the National Association of
Securities Dealers, Inc.), without our having made any special
investigation as to the applicability of any specific law, rule or
regulation, and which are not the subject of a specific opinion herein
referring expressly to a particular law or laws.
"Applicable Orders" means those judgments, orders or decrees of
Governmental Authorities identified on Exhibit __ hereto.
"Governmental Authorities" means any court, regulatory body,
administrative agency or governmental body of the State of New York or the
United States of America having jurisdiction over the Company under
Applicable Laws.
"Governmental Approval" means any consent, approval, license,
authorization or validation of, or filing, qualification or registration
with, any Governmental Authorities required to be made or obtained by the
Company pursuant to Applicable Laws, other than any consent, approval,
license, authorization, validation, filing, qualification or registration
which may have become applicable as a result of the involvement of any
other party (other than the Company) in the transactions contemplated by
the Underwriting Agreement or because of such parties' legal or regulatory
status or because of any other facts specifically pertaining to such
parties.
Exhibit B
Opinion of Maryland Counsel for the Company
(i) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Maryland
with full corporate power and authority to own, lease and operate its
properties and conduct its business as described in the Registration
Statement, and to enter into the Underwriting Agreement and consummate the
transactions contemplated in the Prospectus.
(ii) The capital stock of the Company, including the Shares,
conforms in all material respects to the description thereof contained in
the Registration Statement and Prospectus, and the holders of the Shares
will not be subject to personal liability by reason of being such holders;
and the Shares have been duly and validly authorized by the Company for
offer, sale, issuance and delivery pursuant to this Agreement and, when
issued and delivered against payment therefor as provided herein will be
duly and validly issued and fully paid and non-assessable.
(iii) The Underwriting Agreement has been duly authorized,
executed and delivered by the Company.
(iv) The execution, delivery and performance of the Underwriting
Agreement, the issuance and sale of the Shares and the consummation of the
transactions contemplated hereby will not conflict with, or result in any
breach of or constitute a default under (nor constitute any event which
with notice, lapse of time, or both would result in any breach of, or
constitute a default under), any provisions of the charter or by-laws of
the Company or under any Maryland statue to our knowledge, any order or any
decree, judgment or order of a Maryland court applicable to the Company
except that we express no opinion as to (a) the securities or blue sky laws
of any jurisdiction or (b) the provisions relating to indemnification.
(v) The statements set forth in the Prospectus under the caption
"Description of Capital Stock", insofar as they purport to constitute a
summary of the terms of the Common Stock and under the caption
"Underwriting", insofar as they purport to describe the provisions of the
laws and documents referred to therein, are accurate, complete and fair in
all material respects.
(vi) To our knowledge and except as otherwise provided below, the
Company has all necessary licenses, authorizations, consents and approvals
and has made all necessary filings required under any Maryland state or
local law required to conduct its business, as such is described in the
Registration Statement, except to the extent that any failure to have any
such authorizations, consents or approvals would not, individually or in
the aggregate, have a material adverse effect on the assets, operations,
business or condition (financial or otherwise) of the Company.
Exhibit C
November 7, 2001
Officers' Certificate
1. The representations and warranties of the Company in the Underwriting
Agreement, dated November 1, 2001 (the "Underwriting Agreement"), among
Anthracite Capital, Inc., UBS Warburg LLC, Friedman, Billings, Ramsey &
Co., Inc. and ABN AMRO Rothschild LLC, are true and correct as of the date
hereof as though made on and as of this date.
2. The Company has performed all obligations and satisfied all conditions
on its part to be performed or satisfied pursuant to the Underwriting
Agreement at or prior to the date hereof.
3. The Company's Registration Statement (File No. 333-69848) under the
Securities Act of 1933 has become effective; no stop order suspending the
effectiveness of such Registration Statement has been issued and no
proceeding for that purpose has been initiated or threatened by the
Securities and Exchange Commission; and all requests for additional
information on the part of the Securities and Exchange Commission have been
complied with.
4. Subsequent to the respective dates as of which information is given in
the Registration Statement and the Prospectus, there has not been (i) any
material adverse change, or any development involving a prospective
material adverse change, in the business, properties or assets described or
referred to in the Registration Statement, or the results of operations,
condition (financial or otherwise), business or operations of the Company
and the Subsidiaries taken as a whole, (ii) any transaction which is
material to the Company or the Subsidiaries, except transactions in the
ordinary course of business, (iii) any obligation, direct or contingent,
which is material to the Company and the Subsidiaries taken as a whole,
incurred by the Company or the Subsidiaries, except obligations incurred in
the ordinary course of business, or (iv) any material change in the capital
stock or outstanding indebtedness of the Company or the Subsidiaries; and
neither the Company nor the Subsidiaries has any material contingent
obligation which is not disclosed in the Registration Statement.
By:____________________________
Name:
Title:
By:____________________________
Name:
Title:
Exhibit D
November 7, 2001
Manager's Representation Letter
The representations and warranties made on behalf of the BlackRock
Financial Management, Inc. in the Underwriting Agreement dated November 1,
2001, among Anthracite Capital, Inc., UBS Warburg LLC, Friedman, Billings,
Ramsey & Co., Inc. and ABN AMRO Rothschild LLC, are true and correct as of
the date hereof as though made on and as of this date.
By:____________________________
Name:
Title:
Exhibit E
Form of Lock-up Agreement
UBS Warburg LLC
Friedman, Billings, Ramsey & Co., Inc.
ABN AMRO Rothschild LLC
c/o UBS Warburg LLC
Financial Institutions Group
299 Park Avenue
34th Floor
New York, NY 10171
Re: Anthracite Capital, Inc. - Lock-Up Agreement
Ladies and Gentlemen:
The undersigned is an owner of record or beneficially of certain
shares of common stock, par value $.001 per share ("Common Stock"), of
Anthracite Capital, Inc., a Maryland corporation (the "Company"), and
understands that you propose to enter into an Underwriting Agreement as the
several Underwriters named therein (collectively, the "Underwriters") with
the Company, providing for a public offering by the Company of newly issued
shares of Common Stock of the Company (the "Shares") pursuant to
Registration Statements (File No. 333-75473 and File No. 333-69848) on Form
S-3 filed with the Securities and Exchange Commission (the "SEC").
In consideration of the agreement by the Underwriters to offer and
sell the Shares, and of other good and valuable consideration the receipt
and sufficiency of which is hereby acknowledged, the undersigned agrees
that, during the period beginning from the date of the final Prospectus
Supplement (as provided for in the Underwriting Agreement) covering the
public offering of the Shares and continuing to and including the date 90
days after the date of such Prospectus Supplement, the undersigned will not
sell, offer or agree to sell, contract to sell, hypothecate, grant any
option to sell or otherwise dispose of, directly or indirectly, any shares
of Common Stock or securities convertible into or exchangeable or
exercisable for Common Stock or warrants or other rights to purchase Common
Stock or any other securities of the Company that are substantially similar
to the Common Stock, whether now owned or hereinafter acquired, owned
directly by the undersigned (including holding as a custodian) or with
respect to which the undersigned has beneficial ownership within the rules
and regulations of the SEC (collectively the "Undersigned's Shares").
The foregoing restriction is expressly agreed to preclude the
undersigned from engaging in any hedging or other transaction which is
designed to or which reasonably could be expected to lead to or result in a
sale or disposition of the Undersigned's Shares even if the Undersigned's
Shares would be disposed of by someone other than the undersigned. Such
prohibited hedging or other transactions would include without limitation
any short sale or any purchase, sale or grant of any right (including
without limitation any put or call option) with respect to any of the
Undersigned's Shares or with respect to any security that includes, relates
to, or derives any significant part of its value from the Undersigned's
Shares.
The foregoing restriction shall not apply to options granted
pursuant to employee benefit plans of the Company existing on the date of
the final Prospectus Supplement, including, without limitation, the
Company's 1998 Stock Option Plan, and the issuance of shares of Common
Stock by the Company upon exercise of such outstanding options, provided,
that, with respect to any such shares of Common Stock so issued, the
undersigned agrees to be otherwise bound by the restrictions set forth in
this Lock-Up Agreement. Notwithstanding the foregoing restriction, the
undersigned may transfer the Undersigned's Shares with the prior written
consent of UBS Warburg LLC on behalf of the Underwriters.
This Lock-Up Agreement shall automatically terminate on the
earliest of (i) November 26, 2001, in the event that an Underwriting
Agreement has not been executed by the Company and UBS Warburg LLC on or
prior to that date, (ii) the date that the Underwriting Agreement is
terminated, in the event that the Underwriters do not purchase the Shares
and the Underwriting Agreement is terminated pursuant to its terms, (iii)
the date that the registration statement which relates to the public
offering is withdrawn by the Company, and (iv) the date on which the
Company and the Underwriters mutually agree not to proceed with the public
offering. Whether or not the public offering actually occurs depends on a
number of factors, including market conditions. Any public offering will
only be made pursuant to an Underwriting Agreement, the terms of which are
subject to negotiation between the Company and the Underwriters.
The undersigned understands that the Company and the Underwriters
are relying upon this Lock-Up Agreement in proceeding toward consummation
of the offering. The undersigned further understands that this Lock-Up
Agreement is irrevocable and shall be binding upon the undersigned's heirs,
legal representatives, successors, and assigns.
This Lock-Up Agreement shall be governed by, construed and
enforced in accordance with the laws of the State of New York.
Very truly yours,
------------------------------------
Name
------------------------------------
Authorized Signature
------------------------------------
Title