Exhibit 99.3
------------
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of December
2, 1999, by and among Anthracite Capital, Inc., a Maryland corporation,
with its headquarters located at 345 Park Avenue, 29th Floor, New York, NY
10154 (the "Company"), and RECP II Anthracite, LLC, a Delaware Limited
Liability Company (together with any assignee or transferee of all of its
respective rights hereunder, the "Investor"), a wholly-owned subsidiary of
DLJ Real Estate Capital Partners II, L.P. ("RECP").
WHEREAS:
A. In connection with the Securities Purchase Agreement by and among
the parties hereto of even date herewith (the "Securities Purchase
Agreement"), the Company has agreed, upon the terms and subject to the
conditions contained therein, to issue and sell to the Investor shares of
its preferred stock ("Preferred Stock"), $.001 par value per share,
designated and classified 10.5% Series A Senior Cumulative Convertible
Redeemable Preferred Stock (the "Preferred Shares"), that are convertible
into shares (as converted, the "Conversion Shares") of the Company's common
stock, par value $.001 per share (the "Common Stock"), upon the terms and
subject to the limitations and conditions set forth in the Articles
Supplementary to the Articles of Incorporation of the Company (the
"Articles Supplementary"); and
B. To induce the Investor to execute and deliver the Securities
Purchase Agreement, the Company has agreed to provide certain registration
rights under the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder, or any similar successor statute
(collectively, the "1933 Act"), and applicable state securities laws;
C. The Company registered Preferred Stock and Common Stock pursuant
to a registration statement on Form S-3 filed under Rule 415 of the 1933
Act with the Securities and Exchange Commission (the "SEC") that was
declared effective by the SEC on September 29, 1999 (Registration No. 333-
75473) (the "Existing Registration Statement").
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Company and
the Investor hereby agrees as follows:
1. DEFINITIONS.
A. As used in this Agreement, the following terms shall have the
following meanings:
(i) "Investor" means RECP II Anthracite, LLC and any transferee
or assignee who agrees to become bound by the provisions of
this Agreement in accordance with Section 9 hereof.
(ii) "Register," "Registered," and "Registration" refer to a
registration effected by preparing and filing a Registration
Statement or Statements in compliance with the 1933 Act and
pursuant to Rule 415 under the 1933 Act or any successor
rule providing for offering securities on a continuous basis
("Rule 415"), and the declaration or ordering of
effectiveness of such Registration Statement by the United
States Securities and Exchange Commission (the "SEC").
(iii) "Registrable Securities" means (i) the Preferred Shares
and the Conversion Shares issued or issuable upon
conversion of or otherwise pursuant to the Preferred
Shares, (ii) any securities of the Company issued as
(or issuable upon the conversion or exercise of any
warrant, right or other security which is issued as) a
dividend or other distribution with respect to, or in
exchange by the Company generally for, or in
replacement by the Company generally of, the Preferred
Shares or the Conversion Shares or (iii) any
securities issued in exchange for Registrable
Securities in any merger or reorganization of the
Company.
(iv) "Registration Period" means the period ending on the
earliest to occur of (i) the sale of all the Registrable
Securities under an effective Registration Statement or (ii)
the date on which all of the Registrable Securities are
eligible for sale pursuant to Rule 144 under the 1933 Act
and can be sold in one transaction in accordance with the
volume limitations contained in Rule 144(e)(1)(i) under the
1933 Act, if applicable.
(v) "Registration Statement(s)" means a registration
statement(s) of the Company under the 1933 Act covering the
resale of the Registrable Securities, including the Existing
Registration Statement as amended by a post-effective
amendment allowing the Registrable Securities to be included
in the Existing Registration Statement.
B. Capitalized terms used herein and not otherwise defined herein
shall have the respective meanings set forth in the Securities Purchase
Agreement.
2. REGISTRATION.
A. DEMAND REGISTRATION. The Company, within sixty (60) days of the
date hereof, shall prepare and file with the SEC a Registration Statement
on Form S-3 (or, if Form S-3 is not then available, on such form of
Registration Statement as is then available to effect a registration of the
Registrable Securities) (the "Investor Registration Statement"), covering
the resale of the Registrable Securities and complying as to form in all
material respects with applicable SEC rules. The number of shares of
Preferred Stock initially included in such Registration Statement shall
equal the number of Preferred Shares issued. The number of shares of
Common Stock initially included in such Registration Statement shall equal
the number of Conversion Shares that are then issuable upon conversion of
the Preferred Stock. The Registration Statement, to the extent allowable
under the 1933 Act and the rules and regulations promulgated thereunder
(including Rule 416), shall state that such Registration Statement also
covers such indeterminate number of additional shares of Common Stock as
may become issuable upon conversion of the Preferred Shares to prevent
dilution resulting from stock splits, stock dividends or similar
transactions, and to the extent necessary such Registration Statement shall
be amended from time to time to cover additional Registrable Securities of
the Investor.
B. UNDERWRITTEN OFFERING. If any offering pursuant to a
Registration Statement pursuant to Section 2(A) hereof involves an
underwritten offering pursuant to Section 2E herein, the Investor shall
have the right to select one legal counsel and an investment banker or
bankers and manager or managers to administer the offering, which
investment banker or bankers or manager or managers and legal counsel shall
be reasonably satisfactory to the Company.
C. PIGGY-BACK REGISTRATIONS. Subject to the last sentence of this
Section 2(C), if at any time prior to the expiration of the Registration
Period, the Company shall determine to file with the SEC a Registration
Statement relating to an offering for its own account or the account of
others under the 1933 Act of any of its equity securities (other than on
Form S-4 or Form S-8 or their then equivalents relating to equity
securities to be issued solely in connection with any acquisition of any
entity or business or equity securities issuable in connection with stock
option or other employee benefit plans), the Company shall send to the
Investor who is entitled to registration rights under this Section 2(C)
written notice of such determination and, if within ten (10) days after the
date of such written notice, the Investor shall so request in writing, the
Company shall include in such Registration Statement all or any part of the
Registrable Securities the Investor requests to be registered, except that
if, in connection with any underwritten public offering for the account of
the Company the managing underwriter(s) thereof shall impose a limitation
on the number of shares of Common Stock which may be included in the
Registration Statement because, in the good faith judgment of such
underwriter(s), marketing or other factors dictate that such limitation is
necessary to facilitate public distribution, then the Company shall be
obligated to include in such Registration Statement only such limited
number of the Registrable Securities with respect to which the Investor has
requested inclusion hereunder as the underwriter shall advise. Any
exclusion of Registrable Securities shall be made pro rata among the
Investor and any other holders of Registrable Securities seeking to include
Registrable Securities in proportion to the number of Registrable
Securities sought to be included by the Investor and such other holders of
Registrable Securities; provided, however, that the Company shall not
exclude any Registrable Securities unless the Company has first excluded
all outstanding securities, the holders of which are not entitled to demand
registration rights in such Registration Statement or are not entitled to
pro rata inclusion with the Registrable Securities; and provided, further,
however, that any exclusion of Registrable Securities shall be made pro
rata with holders of other securities having the right to include such
securities in the Registration Statement other than holders of securities
entitled to inclusion of their securities in such Registration Statement by
reason of demand registration rights. No right to registration of
Registrable Securities under this Section 2(C) shall be construed to limit
any registration required under Section 2(A) hereof. If an offering in
connection with which the Investor is entitled to registration under this
Section 2(C) is an underwritten offering, then the Investor whose
Registrable Securities are included in such Registration Statement shall,
unless otherwise agreed by the Company, offer and sell such Registrable
Securities in an underwritten offering using the same underwriter or
underwriters and, subject to the provisions of this Agreement, on the same
terms and conditions as other shares of Common Stock included in such
underwritten offering.
Notwithstanding anything to the contrary set forth herein, the
registration rights of the Investor pursuant to this Section 2(C) shall
only be available in the event and at such times as the Company fails to
timely file, obtain effectiveness or maintain effectiveness of any
Registration Statement to be filed pursuant to Section 2(A) in accordance
with the terms of this Agreement; provided, however, that if the Company
files a Registration Statement pursuant to this Section 2(C), the Company
shall take the steps necessary to obtain the effectiveness of or shall take
no steps to cause the lapse in effectiveness of, as the case may be, of any
such Registration Statement even if a Registration Statement filed pursuant
to Section 2(A) or this Section 2(C) becomes effective; provided, further,
however, that nothing contained in the preceding two provisos shall (i) be
construed as requiring the Company to register or maintain the registration
of any of the Registrable Securities pursuant to more than one Registration
Statement; or (ii) diminish the Company's obligation to register all of the
Registrable Securities.
D. ELIGIBILITY FOR FORM S-3. The Company represents and warrants
that it currently complies with the registrant eligibility and transaction
requirements for the use of Form S-3 for registration of the sale by the
Investor and of the Registrable Securities and the Company shall use its
best efforts to file all reports required to be filed by the Company with
the SEC in a timely manner so as to maintain such eligibility for the use
of Form S-3 until the expiration of the Registration Period.
3. OBLIGATIONS OF THE COMPANY. In connection with the registration of
the Registrable Securities, the Company shall have the following
obligations:
A. The Company shall prepare and file with the SEC a Registration
Statement with respect to the number of Registrable Securities provided in
Section 2(A), and thereafter use its best efforts to cause such
Registration Statement relating to the Registrable Securities to become
effective as soon as practicable after such filing (but in no event later
than ninety (90) days after the date on which the Investor Registration
Statement was filed with the SEC), and keep the Investor Registration
Statement effective, free of material misstatements or omissions (including
the preparation and filing of any amendments and supplements necessary for
such purpose), pursuant to Rule 415 at all times until the expiration of
the Registration Period and as a result of the event or circumstance
described in the foregoing clause, the legend with respect to transfer
restrictions required under the Agreement is removed. The Investor
Registration Statement (including any amendments or supplements thereto and
prospectuses contained therein) shall comply with all applicable SEC rules
and regulations and shall not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein, or
necessary to make the statements therein not misleading (except for an
untrue statement or alleged untrue statement of a material fact or omission
or alleged omission of a material fact made in reliance on and in
conformity with written information furnished to the Company by or on
behalf of the Investor specifically for use therein).
B. The Company shall prepare and file with the SEC such amendments
(including post-effective amendments) and supplements to the Investor
Registration Statement and the prospectus used in connection with the
Investor Registration Statement as may be necessary to keep the Investor
Registration Statement effective at all times during the Registration
Period except for Allowed Delays, and, during such period, comply with the
provisions of the 1933 Act with respect to the disposition of all
Registrable Securities of the Company covered by the Investor Registration
Statement until such time as all of such Registrable Securities have been
disposed of in accordance with the intended methods of disposition by the
seller or sellers thereof as set forth in the Registration Statement.
C. The Company shall furnish to the Investor whose Registrable
Securities are included in a Registration Statement and its legal counsel,
without charge, (i) promptly after the same is prepared and publicly
distributed, filed with the SEC, or received by the Company, one copy of
each Registration Statement and any amendment thereto, each preliminary
prospectus and prospectus and each amendment or supplement thereto, and, in
the case of the Investor Registration Statement referred to in Section
2(A), each letter written by or on behalf of the Company to the SEC or the
staff of the SEC, and each item of correspondence from the SEC or the staff
of the SEC, in each case relating to such Registration Statement (other
than any portion thereof which contains information for which the Company
has sought confidential treatment), and (ii) such number of copies of a
prospectus, including a preliminary prospectus, and all amendments and
supplements thereto and such other documents as the Investor may reasonably
request in order to facilitate the disposition of the Registrable
Securities owned by the Investor. The Company will promptly notify the
Investor by facsimile of the effectiveness of each Registration Statement
or any post-effective amendment. The Company will promptly respond to any
and all comments received from the SEC, with a view towards causing each
Registration Statement or any amendment thereto to be declared effective by
the SEC as soon as practicable and shall file an acceleration request as
soon as practicable following the resolution or clearance of all SEC
comments or, if applicable, following notification by the SEC that any such
Registration Statement or any amendment thereto will not be subject to
review.
D. The Company shall use its best efforts to (i) register and
qualify the Registrable Securities covered by the Registration Statement
prior to the time that the Registration Statement is declared effective by
the SEC under all other securities or "blue sky" laws of all jurisdictions
in the United States as the Investor reasonably requests, (ii) prepare and
file in those jurisdictions such amendments (including post-effective
amendments) and supplements to such registrations and qualifications as may
be necessary to maintain the effectiveness thereof during the Registration
Period, (iii) take such other actions as may be necessary to maintain such
registrations and qualifications in effect at all times during the
Registration Period, and (iv) take all other actions reasonably necessary
or advisable to qualify the Registrable Securities for sale in such
jurisdictions; provided, however, that the Company shall not be required in
connection therewith or as a condition thereto to (a) qualify to do
business in any jurisdiction where it would not otherwise be required to
qualify but for this Section 3(D), (b) subject itself to general taxation
in any such jurisdiction and (c) file a general consent to service of
process in any such jurisdiction. The Company shall promptly notify the
Investor of the receipt by the Company of any notification with respect to
the suspension of the registration or qualification of any of the
Registrable Securities for sale under the securities or "blue sky" laws of
any jurisdiction in the United States or its receipt of actual notice of
the initiation or threatening of any proceeding for such purpose.
E. In the event of an underwritten offering of the Registrable
Securities, the Investor shall select underwriters for the offering and the
Company shall enter into and perform its obligations under an underwriting
agreement, in usual and customary form, including, without limitation,
customary indemnification and contribution obligations, with the
underwriters of such offering. The Company shall only be obligated to
effect two such underwritten offerings pursuant to Section 2(B) hereof.
F. As promptly as practicable after becoming aware of such event,
the Company shall notify the Investor of the happening of any event, of
which the Company has knowledge, as a result of which the prospectus
included in any Registration Statement, as then in effect, includes an
untrue statement or alleged untrue statement of a material fact or omission
or alleged omission to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, and use its
best efforts promptly to prepare a supplement or amendment to any
Registration Statement or the related prospectus or any document
incorporated therein by reference or file any other required document to
correct such untrue statement or omission, and deliver such number of
copies of such supplement or amendment to the Investor as the Investor may
reasonably request; provided that, at any time after the date which is
thirty (30) days after the Registration Statement is declared effective by
the SEC for not more than thirty (30) consecutive calendar days, the
Company may delay the disclosure of material non-public information
concerning the Company (as well as prospectus or Registration Statement
updating) the disclosure of which would materially impede, delay or
interfere with any pending material financing, acquisition or corporate
reorganization or other material corporate development involving the
Company or any of its subsidiaries, or require the disclosure of important
information which the Company has a material business purpose for
preserving as confidential or the disclosure of which would materially
impede the Company's ability to consummate a significant transaction (an
"Allowed Delay"); provided that no more than three such Allowed Delays may
be made in any twelve (12) month period; provided, further, that the
Company shall promptly (i) notify the Investor in writing of the existence
of an Allowed Delay and (ii) advise the Investor in writing to cease all
sales under such Registration Statement until the end of the Allowed Delay.
Upon expiration of the Allowed Delay, the Company shall again be bound by
the first sentence of this Section 3(F) with respect to the information
giving rise thereto.
G. The Company shall use its best efforts to prevent the issuance of
any stop order or other suspension of effectiveness of any Registration
Statement, and, if such an order is issued, to obtain the withdrawal of
such order at the earliest possible moment and to notify the Investor (or,
in the event of an underwritten offering, the managing underwriters) of the
issuance of such order and the resolution thereof.
H. The Company shall permit a single firm of counsel designated by
the holders whose shares make up at least a majority of the Registrable
Securities included in such Registration Statement to review such
Registration Statement and all amendments and supplements thereto (as well
as all requests for acceleration or effectiveness thereof), other than
documents filed pursuant to the Securities Exchange Act of 1934, as
amended, a reasonable period of time (but not less than five (5) business
days prior to the filing of such Registration Statement or supplement or
amendment thereto) prior to their filing with the SEC, and not file any
document in a form to which such counsel reasonably objects and will not
request acceleration of such Registration Statement without prior notice to
such counsel. The sections of such Registration Statement covering
information with respect to the Investor, the Investor's beneficial
ownership of securities of the Company or the Investor's intended method of
disposition of Registrable Securities shall conform in all material
respects to the information provided to the Company by the Investor.
I. The Company shall make generally available to its security
holders as soon as practicable, but not later than ninety (90) days after
the close of the period covered thereby, an earnings statement (in form
complying with the provisions of Rule 158 under the 1933 Act) covering a
twelve-month period beginning not later than the first day of the Company's
fiscal quarter next following the effective date of the Registration
Statement.
J. The Company shall make available for inspection by (i) any
underwriter participating in any disposition pursuant to a Registration
Statement, (ii) one firm of attorneys and one firm of accountants or other
agents retained by the Investor, and (iii) one firm of attorneys retained
by all such underwriters (collectively, the "Inspectors") all pertinent
financial and other records, and pertinent corporate documents and
properties of the Company (collectively, the "Records"), as shall be
reasonably deemed necessary by each Inspector to enable each Inspector to
exercise its due diligence responsibility, and cause the Company's
officers, directors and employees to supply all information which any
Inspector may reasonably request for purposes of such due diligence;
provided, however, that each Inspector shall hold in confidence and shall
not make any disclosure (except to an Investor or another Inspector) of any
Record or other information which the Company determines in good faith to
be confidential, and of which determination the Inspectors are so notified,
unless (a) the disclosure of such Records is necessary to avoid or correct
a misstatement or omission in any Registration Statement, (b) the release
of such Records is ordered pursuant to a subpoena or other order from a
court or government body of competent jurisdiction, or (c) the information
in such Records has been made generally available to the public other than
by disclosure in violation of this or any other agreement. The Company
shall not be required to disclose any confidential information in such
Records to any Inspector until and unless such Inspector shall have entered
into confidentiality agreements (in form and substance reasonably
satisfactory to the Company) with the Company with respect thereto,
substantially in the form of this Section 3(J). The Investor agrees that
it shall, upon learning that disclosure of such Records is sought in or by
a court or governmental body of competent jurisdiction or through other
means, give prompt notice to the Company and allow the Company, at its
expense, to undertake appropriate action to prevent disclosure of, or to
obtain a protective order for, the Records deemed confidential. Nothing
herein (or in any other confidentiality agreement between the Company and
the Investor) shall be deemed to limit the Investor's ability to sell
Registrable Securities in a manner which is otherwise consistent with
applicable laws and regulations.
K. The Company shall hold in confidence and not make any disclosure
of information concerning the Investor provided to the Company unless (i)
disclosure of such information is necessary to comply with federal or state
securities laws, (ii) the disclosure of such information is necessary to
avoid or correct a misstatement or omission in any Registration Statement,
(iii) the release of such information is ordered pursuant to a subpoena or
other order from a court or governmental body of competent jurisdiction, or
(iv) such information has been made generally available to the public other
than by disclosure in violation of this or any other agreement. The
Company agrees that it shall, upon learning that disclosure of such
information concerning the Investor is sought in or by a court or
governmental body of competent jurisdiction or through other means, give
prompt notice to the Investor prior to making such disclosure, and allow
the Investor, at its expense, to undertake appropriate action to prevent
disclosure of, or to obtain a protective order for, such information.
L. The Company shall cause all the Registrable Securities covered by
the Registration Statement to be listed on each national securities
exchange on which securities of the same class or series issued by the
Company are then listed, if any, if the listing of such Registrable
Securities is then permitted under the rules of such exchange.
Additionally, the Company shall, promptly after the registration of the
Conversion Shares with the SEC, apply to list the Conversion Shares on the
New York Stock Exchange.
M. The Company shall provide a transfer agent and registrar, which
may be a single entity, for the Registrable Securities not later than the
effective date of the Registration Statement.
N. The Company shall cooperate with the Investor and the managing
underwriter or underwriters, if any, to facilitate the timely preparation
and delivery of certificates (not bearing any restrictive legends)
representing Registrable Securities to be offered pursuant to a
Registration Statement and enable such certificates to be in such
denominations or amounts, as the case may be, as the managing underwriter
or underwriters, if any, or the Investor may reasonably request and
registered in such names as the managing underwriter or underwriters, if
any, or the Investor may request. Additionally, management of the Company
shall make itself reasonably available in order to cooperate in good faith
with the managing underwriter or underwriters in connection with any road
show, presentations or conference calls undertaken in connection with an
underwritten offering pursuant to Section 2(B) hereof.
O. The Company shall, if reasonably requested by the Investor or
Investor's counsel, incorporate as promptly as practicable in a prospectus
supplement or post-effective amendment such information as such Investor or
Investor's counsel requests to be included therein, including, without
limitation, with respect to the Registrable Securities being sold by the
Investor to any underwriter or underwriters, the purchase price being paid
therefor by such underwriter or underwriters and any other terms of any
underwritten offering of the Registrable Securities to be sold in such
offering, and the Company shall as promptly as practicable make all
required filings of such prospectus supplement or post-effective amendment.
P. The Company shall reasonably cooperate with the Investor in good
faith to facilitate the timely preparation and delivery of certificates
(which shall not bear any restrictive legends unless required under
applicable law or the Company's Articles of Incorporation) representing
Registrable Securities sold under a Registration Statement to the
purchasers thereof, and enable such Registrable Securities to be in such
denominations and registered in such names as the managing underwriter or
underwriters, if any, or the Investor may request and keep available and
make available to the Company's transfer agent prior to the effectiveness
of such Registration Statement a supply of such certificates.
Q. The Company shall enter into such customary agreements
(including, if applicable, an underwriting agreement in customary form) and
take such other actions as the Investor or the underwriters participating
in an underwritten public offering, if any, may reasonably request in order
to expedite or facilitate the disposition of Registrable Securities. The
Investor may, at its option, require that any or all of the
representations, warranties and covenants of the Company to or for the
benefit of any underwriters also be made to and for the benefit of the
Investor.
R. The Company shall furnish to the Investor whose Registrable
Securities are included in the offering and to each underwriter, if any, if
requested by the Investor or underwriter, a signed counterpart, addressed
to the Investor or underwriter, of (i) an opinion or opinions of counsel to
the Company and (ii) a comfort letter or comfort letters from the Company's
independent public accountants, each in customary form and covering matters
of the type customarily covered by opinions or comfort letters, as the case
may be.
S. The Company shall, during the period when the prospectus is
required to be delivered under the Securities Act, file in a timely fashion
all documents required to be filed with the Commission pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act.
T. The Company covenants that it will file any reports required to
be filed by it under the Securities Act and the Exchange Act, and the rules
and regulations adopted by the Commission thereunder (or, if the Company is
not required to file such reports, it will, upon the request of any
Investor, make publicly available other information so long as necessary to
permit sales of the Registrable Securities under Rule 144 under the
Securities Act), and it will take such further action as any Investor may
reasonably request, all to the extent required from time to time to enable
such Investor to sell Registrable Securities without registration under the
Securities Act within the limitation of the exemptions provided by (a) Rule
144 under the Securities Act, as such Rule may be amended from time to
time, or (b) any successor rule or similar provision or regulation
hereafter adopted by the Commission. Upon the request of any Investor, the
Company will deliver to such Investor a written statement as to whether it
has complied with such requirements.
U. The Company covenants that it will file all reports required to
be filed by it under the Securities Act and the Exchange Act, and the rules
and regulations adopted by the Commission thereunder (or if the Company is
not required to file such reports, it will, upon the request of any
Investor, make available other information so long as necessary to permit
sales of the Registrable Securities pursuant to Rule 144A under the
Securities Act), and it will take such further action as any Investor may
request, all to the extent required from time to time to enable such
Investor to sell Registrable Securities without registration under the
Securities Act within the limitation of the exemptions provided by (a) Rule
144A, as such rule may be amended from time to time, or (b) any successor
rule or similar provision or regulation hereafter adopted by the
Commission.
4. OBLIGATIONS OF THE INVESTOR. In connection with the registration of
the Registrable Securities, the Investor shall have the following
obligations.
A. The Investor shall promptly furnish (but in no event later than
three (3) business days prior to the filing of any Registration Statement
or amendment(s) or supplement(s) thereto with respect to the Registrable
Securities) to the Company such information regarding itself, the
Registrable Securities held by it and the intended method of disposition of
the Registrable Securities held by it as shall be reasonably required to
effect the registration of such Registrable Securities and shall execute
such documents in connection with such registration as the Company may
reasonably request. At least six (6) business days prior to the
anticipated filing date of the Registration Statement and any amendment(s)
or supplement(s) thereto, the Company shall notify the Investor of the
information the Company reasonably requires from the Investor and the
Investor shall supply or cause its representatives to supply such
information within three (3) business days; provided, however, that if the
Investor fails to deliver to the Company the information referred to in the
first sentence of this paragraph prior to the filing of the Registration
Statement or amendment(s) or supplement(s) thereto, the Investor shall bear
the cost of any additional Registration Statement or amendment(s) or
supplement(s) thereto which the Company is required to file due solely to
such failure; provided, however, that the failure of the Investor to
provide such information shall not delay or otherwise prevent the Company
from the filing of the Registration Statement or amendment(s) or
supplement(s) thereto.
B. The Investor, by the Investor's acceptance of the Registrable
Securities for inclusion in a Registration Statement, agrees to cooperate
with the Company as reasonably requested by the Company in connection with
the preparation and filing of a Registration Statement hereunder, unless
the Investor has notified the Company in writing of the Investor's election
to exclude all of the Investor's Registrable Securities from a Registration
Statement.
C. In the event the Investor determines to engage the services of an
underwriter, the Investor agrees to enter into and perform the Investor's
obligations under an underwriting agreement, in usual and customary form,
including, without limitation, customary indemnification and contribution
obligations, with the managing underwriter of such offering and take such
other actions as are reasonably required in order to expedite or facilitate
the disposition of the Registrable Securities, unless the Investor has
notified the Company in writing of such Investor's election to exclude all
of the Investor's Registrable Securities from the Registration Statement.
D. The Investor agrees that, upon receipt of any notice from the
Company of the happening of any event of the kind described in Section 3(F)
or 3(G), the Investor will immediately discontinue disposition of
Registrable Securities pursuant to the Registration Statement covering such
Registrable Securities until the Investor's receipt of the copies of the
supplemented or amended prospectus contemplated by Section 3(F) or 3(G) or
notice from the Company that such supplement or amendment is not necessary
and, if so directed by the Company, the Investor shall deliver to the
Company (at the expense of the Company) or destroy (and deliver to the
Company a certificate of destruction) all copies in the Investor's
possession, of the prospectus covering such Registrable Securities current
at the time of receipt of such notice.
E. No Investor may participate in any underwritten registration
hereunder unless the Investor (i) agrees to sell the Investor's Registrable
Securities on the basis provided in any underwriting arrangements in usual
and customary form entered into by the Company and (ii) completes and
executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents reasonably required under the terms of such
underwriting arrangements and (iii) agrees to pay its pro rata share of all
underwriting discounts and commissions and any expenses in excess of those
payable by the Company pursuant to Section 5 below.
F. At any time after the date which is thirty (30) days after the
date on which the Registration Statement is declared effective by the SEC,
in connection with any firm commitment underwritten public offering of the
Common Stock (other than any registration by the Company on Form S-4 or S-
8, as the case may be, or a successor or substantially similar form, of (A)
an employee stock option, stock purchase or compensation plan or of
securities issued or issuable pursuant to any such plan or (B) a dividend
reinvestment plan) resulting in gross proceeds to the Company of at least
$10,000,000 led by at least one underwriter of nationally recognized
standing (a "Qualified Public Offering"), the Investor agrees, if requested
in writing by the managing underwriter or the underwriters administering
such offering, not to sell Registrable Securities pursuant to the
Registration Statement in any public sale for a period commencing on the
seventh day prior to the expected effective date of the registration
statement covering such Qualified Public Offering or the date on which the
proposed offering is expected to commence (which date shall be stated in
such notice) and ending on the date specified by such managing underwriter
in such written request to the Investor, which date shall not be later than
forty-five (45) days after such expected date of effectiveness or the
commencement of the offering, as the case may be (the "Underwriters Lock-Up
Period"); provided that such underwriters in good faith determine that the
sale of the Registrable Securities under a Registration Statement would
have a material adverse effect on such Qualified Public Offering; and
further, provided that all of the Company's directors, executive officers
and affiliates shall have also agreed to similar restrictions. The
Investor shall be subject to no more than one such restriction in each
twelve (12) month period during the Registration Period.
5. EXPENSES OF REGISTRATION. All reasonable expenses, other than
underwriting discounts and commissions, incurred in connection with
registrations, filings or qualifications pursuant to Sections 2 and 3,
including, without limitation, all SEC, state and stock exchange securities
registration, listing and qualification fees, all expenses incurred in
connection with the preparation, printing and distribution of the
Registration Statement and prospectus (including all expenses incurred with
the delivery to the Investor of such number of copies of any prospectus as
the Investor may reasonably request), the fees and disbursements of counsel
for the Company and the independent public accountants of the Company,
shall be borne by the Company (provided that the fees and disbursements of
the counsel selected by the Investor pursuant to Section 3(H) shall be paid
by the Investor), whether or not the Registration Statement is declared
effective by the SEC.
6. INDEMNIFICATION. In the event any Registrable Securities are included
in a Registration Statement under this Agreement:
A. To the extent permitted by law, the Company will indemnify, hold
harmless and defend: (i) the Investor who holds such Registrable
Securities, (ii) the directors, officers, partners, trustees, stockholders,
employees, agents and each person who controls the Investor within the
meaning of the 1933 Act or the Securities Exchange Act of 1934, as amended
(the "1934 Act"), if any, (iii) any underwriter (as defined in the 1933
Act) for the Investor (subject to the Company receiving customary
indemnification from any such underwriter), and (iv) the directors,
officers, partners, employees and each person who controls any such
underwriter within the meaning of the 1933 Act or the 1934 Act, if any
(each, an "Indemnified Person"), against any joint or several losses,
claims, damages, liabilities or expenses (collectively, together with
actions, proceedings or inquiries by any regulatory or self-regulatory
organization, whether commenced or threatened, in respect thereof,
"Claims") to which any of them may become subject insofar as such Claims
arise out of or are based upon: (i) any untrue statement or alleged untrue
statement of a material fact in a Registration Statement (or any amendment
thereto), including all documents incorporated therein by reference, or the
omission or alleged omission to state therein a material fact required to
be stated or necessary to make the statements therein not misleading; (ii)
any untrue statement or alleged untrue statement of a material fact
contained in any preliminary prospectus if used prior to the effective date
of such Registration Statement, or contained in the final prospectus (as
amended or supplemented, if the Company files any amendment thereof or
supplement thereto with the SEC), including all documents incorporated
therein by reference, or the omission or alleged omission to state therein
any material fact necessary to make the statements made therein, in light
of the circumstances under which the statements therein were made, not
misleading; or (iii) any violation or alleged violation by the Company of
the 1933 Act, the 1934 Act, any other securities laws including without
limitation, any state securities laws, or any rule or regulation thereunder
relating to the offer or sale of the Registrable Securities (the matters in
the foregoing clauses (i) through (iii) being, collectively, "Violations").
Subject to the restrictions set forth in Section 6(C) with respect to the
number of legal counsel, the Company shall reimburse the Indemnified
Person, promptly as such expenses are incurred and are due and payable, for
any reasonable legal fees or other reasonable expenses incurred by them in
connection with investigating or defending any such Claim. Notwithstanding
anything to the contrary contained herein, the indemnification agreement
contained in this Section 6(a): (i) shall not apply to a Claim arising out
of or based upon a Violation which occurs in reliance upon and in
conformity with information furnished in writing to the Company by any
Indemnified Person or underwriter for such Indemnified Person expressly for
use in connection with such Registration Statement or preliminary or final
prospectus or any such amendment thereof or supplement thereto; (ii) shall
not apply to amounts paid in settlement of any Claim if such settlement is
effected without the prior written consent of the Company, which consent
shall not be unreasonably withheld; and (iii) with respect to any
preliminary prospectus, shall not inure to the benefit of any Indemnified
Person if the untrue statement or omission or alleged untrue statement or
omission of a material fact contained in the preliminary prospectus was
corrected on a timely basis in the prospectus, as then amended or
supplemented, such corrected prospectus was timely made available by the
Company pursuant to Section 3(C) hereof, and the Indemnified Person was
promptly advised in writing not to use the incorrect prospectus prior to
the use giving rise to a Violation and such Indemnified Person,
notwithstanding such advice, used it. Such indemnity shall remain in full
force and effect regardless of any investigation made by or on behalf of
the Indemnified Person and shall survive the transfer of the Registrable
Securities by the Investor.
B. In connection with any Registration Statement in which the
Investor is participating, the Investor agrees to indemnify, hold harmless
and defend, to the same extent and in the same manner set forth in Section
6(A), the Company, each of its directors, each of its officers who signs
the Registration Statement, each person, if any, who controls the Company
within the meaning of the 1933 Act or the 1934 Act, any underwriter and any
other stockholder selling securities pursuant to the Registration Statement
or any of its directors or officers or any person who controls such
stockholder or underwriter within the meaning of the 1933 Act or the 1934
Act (an "Indemnified Party"), against any Claim to which any of them may
become subject, under the 1933 Act, the 1934 Act or otherwise, insofar as
such Claim arises out of or is based upon any Violation by the Investor, in
each case to the extent (and only to the extent) that such Violation occurs
in reliance upon and in conformity with written information furnished to
the Company by the Investor expressly for use in connection with such
Registration Statement or preliminary or final prospectus or any such
amendment or supplement thereof or thereto; and subject to Section 6(C) the
Investor will reimburse any legal or other expenses promptly as such
expenses are incurred and are due and payable reasonably incurred by them
in connection with investigating or defending any such Claim; provided,
however, that the indemnity agreement contained in this Section 6(B) shall
not apply to amounts paid in settlement of any Claim if such settlement is
effected without the prior written consent of the Investor, which consent
shall not be unreasonably withheld; provided, further, however, that the
Investor shall be liable under this Agreement (including this Section 6(B)
and Section 7) for only that amount as does not exceed the net proceeds to
the Investor as a result of the sale of Registrable Securities pursuant to
such Registration Statement (after deducting the amounts already paid to
Indemnified Parties by the Investor pursuant to this Section 6(B) or
Section 7). Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of such Indemnified
Party and shall survive the transfer of the Registrable Securities by the
Investor pursuant to Section 9. Notwithstanding anything to the contrary
contained herein, the indemnification agreement contained in this Section
6(B) with respect to any preliminary prospectus shall not inure to the
benefit of any Indemnified Party if the untrue statement or omission of
material fact contained in the preliminary prospectus was corrected on a
timely basis in the prospectus, as then amended or supplemented.
C. Promptly after receipt by an Indemnified Person or Indemnified
Party under this Section 6 of notice of the commencement of any action
(including any governmental action), such Indemnified Person or Indemnified
Party shall, if a Claim in respect thereof is to be made against any
indemnifying party under this Section 6, deliver to the indemnifying party
a written notice of the commencement thereof, and the indemnifying party
shall have the right to participate in, and, to the extent the indemnifying
party so desires, jointly with any other indemnifying party similarly
noticed, to assume control of the defense thereof at such indemnifying
party's or parties' own expense with counsel reasonably satisfactory to the
Indemnified Person or the Indemnified Party, as the case may be; provided,
however, that an indemnifying party shall not be entitled to assume such
defense and an Indemnified Person or Indemnified Party shall have the right
to retain its own counsel with the fees and expenses to be paid by the
indemnifying party, if, in the reasonable opinion of counsel retained by
the indemnifying party, the representation by such counsel of the
Indemnified Person or Indemnified Party and the indemnifying party would be
inappropriate due to actual or potential conflict of interest under
applicable rules of professional conduct or that there may be legal
defenses available to the Indemnified Party which are different from or in
addition to those available to the indemnifying party. The indemnifying
party shall pay for up to one separate legal counsel for the Indemnified
Persons or the Indemnified Parties, as applicable, and such legal counsel
shall be selected by the Investor, if the Investor is entitled to
indemnification hereunder, or the Company, if the Company is entitled to
indemnification hereunder, as applicable. If the indemnifying party is not
entitled to assume the defense of such action or proceeding, the
indemnifying party's counsel shall be entitled to conduct the indemnifying
party's defense, and counsel for the Indemnified Party shall be entitled to
conduct the defense of the Indemnified Party, it being understood that both
such counsel will cooperate with each other to conduct the defense of such
action or proceeding as efficiently as possible. If the indemnifying party
(i) is not so entitled to assume the defense of such action, (ii) does not
assume such defense, after having received the notice referred to in the
first sentence of this paragraph, or (iii) fails to employ counsel that is
reasonably satisfactory to the Indemnified Party, after having received the
notice referred to in the first sentence of this paragraph, the
indemnifying party will pay the reasonable fees and expenses of counsel for
the Indemnified Party. In such event, however, the indemnifying party will
not be liable for any settlement effected without the written consent of
the indemnifying party, which consent shall not be unreasonably withheld.
No indemnifying party shall, without the consent of the Indemnified Party,
consent to entry of any judgment or enter into a settlement that does not
include as an unconditional term thereof the giving by the claimant or
plaintiff to such Indemnified Party of a release from all liability in
respect to such claim or litigation. If an indemnifying party is entitled
to assume, and assumes, the defense of such action or proceeding in
accordance with this paragraph, the indemnifying party shall not be liable
for any fees and expenses of counsel for the Indemnified Party incurred
thereafter in connection with such action or proceeding. The failure to
deliver written notice to the indemnifying party within a reasonable time
of the commencement of any such action shall not relieve such indemnifying
party of any liability to the Indemnified Person or Indemnified Party under
this Section 6, except to the extent that the indemnifying party is
actually prejudiced in its ability to defend such action. The
indemnification required by this Section 6 shall be made by periodic
payments of the amount thereof during the course of the investigation or
defense, as such expense, loss, damage or liability is incurred and is due
and payable.
D. The indemnity agreements contained herein shall be in addition to
(i) any cause of action or similar right of the Indemnified Party or
Indemnified Person against the indemnifying party or others, and (ii) any
liabilities the indemnifying party may be subject to pursuant to law.
7. CONTRIBUTION. To the extent any indemnification by an indemnifying
party is prohibited or limited by law, the indemnifying party agrees to
make the maximum contribution with respect to any amounts for which it
would otherwise be liable under Section 6 to the fullest extent permitted
by law; provided, however, that (i) no contribution shall be made under
circumstances where the maker would not have been liable for
indemnification under the fault standards set forth in Section 6, (ii) no
seller of Registrable Securities guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 1933 Act) shall be entitled to
contribution from any seller of Registrable Securities who was not guilty
of such fraudulent misrepresentation, and (iii) contribution (together with
any indemnification or other obligations under this Agreement) by any
seller of Registrable Securities shall be limited in amount to the net
amount of proceeds received by such seller from the sale of such
Registrable Securities pursuant to such Registration Statement (after
deducting amounts already paid to indemnified parties by the Investor under
Sections 6(B) and 7).
8. ASSIGNMENT OF REGISTRATION RIGHTS. This Agreement shall inure to the
benefit of and be binding on the successors, assigns and transferees of
each of the parties, including, without limitation and without the need for
an express assignment, subsequent Investors. If any successor, assignee or
transferee of the Investor shall acquire Registrable Securities, in any
manner, whether by operation of law or otherwise, such Registrable
Securities shall be held subject to all of the terms of this Agreement, and
by taking and holding Registrable Securities such Person shall be
conclusively deemed to have agreed to be bound by all of the terms and
provisions hereof.
9. AMENDMENT OF REGISTRATION RIGHTS. Provisions of this Agreement may be
amended and the observance thereof may be waived (either generally or in a
particular instance and either retroactively or prospectively), only with
the written consent of the Company and the holder(s) of a majority in
interest of the Registrable Securities; provided, however, that for
purposes of this Agreement, Registrable Securities that are owned, directly
or indirectly, by either the Company or an affiliate of the Company shall
not be deemed outstanding. Any amendment or waiver effected in accordance
with this Section 9 shall be binding upon the Investor and the Company.
10. MISCELLANEOUS.
A. A person or entity is deemed to be a holder of Registrable
Securities whenever such person or entity owns of record or beneficially
such Registrable Securities. If the Company receives conflicting
instructions, notices or elections from two or more persons or entities
with respect to the same Registrable Securities, the Company shall act upon
the basis of an instruction, notice or election received from the
registered owner of such Registrable Securities and the Company shall have
no liability for following instructions from the registered owner of the
Registrable Securities and the registered owner by providing such
instructions agrees to indemnify the Company in accordance with the
provisions of Section 6(B).
B. Any notices required or permitted to be given under the terms
hereof shall be sent overnight by express mail or delivered personally or
by courier (including an overnight delivery service) or by facsimile and
shall be effective upon receipt, if delivered by overnight express mail,
personally or by courier (including an overnight delivery service) or by
facsimile, in each case addressed to a party. The addresses for such
communications shall be:
If to the Company:
Anthracite Capital, Inc.
345 Park Avenue, 29th Floor
New York, NY 10154
Attention: Chief Financial Officer
Facsimile: (212) 754-8758
With copy to:
Skadden, Arps, Slate, Meagher & Flom LLP
919 Third Avenue
New York, NY 10022
Attention: Vincent J. Pisano, Esq.
Facsimile: 212-735-2000
If to the Investor: to
RECP II Anthracite, LLC
c/o DLJ Real Estate Capital Partners II, L.P.
277 Park Avenue, 19th Floor
New York, NY 10172
Attention: Andrew P. Rifkin, Phillip C. Tager and William C. Helm
Facsimile: (212) 892-7553
With copy to:
Rogers & Wells LLP
200 Park Avenue
New York, NY 10166
Attention: Robert G. King, Jr.
Facsimile: 212-878-8375
C. Failure of any party to exercise any right or remedy under this
Agreement or otherwise, or delay by a party in exercising such right or
remedy, shall not operate as a waiver thereof.
D. This Agreement shall be enforced, governed by and interpreted in
accordance with the laws of the State of New York without regard to the
principles of conflicts of laws. The parties agree that all disputes
between any of them arising out of, connected with, related to, or
incidental to the relationship established between them in connection with
this Agreement, and whether arising in law or in equity or otherwise, shall
be resolved by the federal or state courts located in New York, New York.
Nothing herein shall affect the right of any party to serve process in any
other manner permitted by law or to commence legal proceedings or otherwise
proceed against the other in any other jurisdiction. In addition, each of
the parties hereto consents to submit to the personal jurisdiction of any
federal or state court located in the state of New York in the event that
any dispute arises out of this Agreement. The parties, for themselves and
their respective affiliates, hereby irrevocably waive all right to a trial
by jury in any action, proceeding or counterclaim (whether based on
contract, tort or otherwise) arising out of or relating to the actions of
the parties or their respective affiliates pursuant to this Agreement in
the negotiation, administration, performance or enforcement thereof.
E. This Agreement constitutes the entire agreement among the parties
hereto with respect to the subject matter hereof. There are no
restrictions, promises, warranties or undertakings, other than those set
forth or referred to herein. This Agreement supersedes all prior
agreements and understandings among the parties hereto with respect to the
subject matter hereof.
F. Subject to the requirements of Section 8 hereof, this Agreement
shall inure to the benefit of and be binding upon the successors and
assigns of each of the parties hereto and is not for the benefit of, nor
may any provision hereof be enforced by, any other person.
G. The headings in this Agreement are for convenience of reference
only and shall not limit or otherwise affect the meaning hereof.
H. This Agreement may be executed in two or more counterparts, each
of which shall be deemed an original but all of which shall constitute one
and the same agreement. This Agreement, once executed by a party, may be
delivered to the other party hereto by facsimile transmission of a copy of
this Agreement bearing the signature of the party so delivering this
Agreement.
I. Each party shall do and perform, or cause to be done and
performed, all such further acts and things, and shall execute and deliver
all such other agreements, certificates, instruments and documents, as the
other party may reasonably request in order to carry out the intent and
accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
J. Each of the parties shall pay its own costs and expenses in
connection with the transactions contemplated hereby, whether such
transactions are consummated, except as otherwise specifically provided
herein.
K. The language used in this Agreement will be deemed to be the
language chosen by the parties to express their mutual intent, and no rules
of strict construction will be applied against any party.
L. The Company agrees to indemnify and hold harmless the Investor
and its respective officers, directors, employees and agents for loss, cost
or damages (including reasonable attorney's fees) arising as a result of or
related to any breach or alleged breach by the Company of its obligations
under this Agreement or in connection with the enforcement by the Investor
of any of the Company's obligations hereunder, including the enforcement of
this indemnity.
M. No waiver by a party hereto shall be effective unless made in a
written instrument duly executed by the party against whom such waiver is
sought to be enforced, and only to the extent set forth in such instrument.
Neither the waiver by any of the parties hereto of a breach or a default
under any of the provisions of this Agreement, nor the failure of any of
the parties, on one or more occasions, to enforce any of the provisions of
this Agreement or to exercise any right or privilege hereunder, shall
thereafter be construed as a waiver of any subsequent breach or default of
a similar nature, or as a waiver of any such provisions, rights or
privileges hereunder.
N. The parties hereto acknowledge that the obligations undertaken by
them hereunder are unique and that there would be no adequate remedy at law
if any party fails to perform any of its obligations hereunder, and
accordingly agree that each party, in addition to any other remedy to which
it may be entitled at law or in equity, shall be entitled to (i) compel
specific performance of the obligations, covenants and agreements of any
other party under this Agreement in accordance with the terms and
conditions of this Agreement and (ii) obtain preliminary injunctive relief
to secure specific performance and to prevent a breach or contemplated
breach of this Agreement in any court of the United States or any State
thereof having jurisdiction.
O. If fulfillment of any provision of this Agreement, at the time
such fulfillment shall be due, shall transcend the limit of validity
prescribed by law, then the obligation to be fulfilled shall be reduced to
the limit of such validity; and if any clause or provision contained in
this Agreement operates or would operate to invalidate this Agreement, in
whole or in part, then such clause or provision only shall be held
ineffective, as though not herein contained, and the remainder of this
Agreement shall remain operative and in full force and effect.
IN WITNESS WHEREOF, the Company and the Investor have caused this
Agreement to be duly executed as of the date first above written.
ANTHRACITE CAPITAL, INC.
By:/s/ Richard M. Shea
--------------------------------
Richard M. Shea
Chief Operating Officer and
Chief Financial Officer
RECP II ANTHRACITE, LLC
By: /s/ Philip C. Tager
--------------------------------
Name: Philip C. Tager
Title: Senior Vice President
ADDRESS: 277 Park Avenue, 19th Floor
New York, NY 10172