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Exhibit
10.1
Anthracite Capital
Inc.
DOCS
®
financing facility*
Shares of Common
Stock,
$0.001 par
value
SALES
AGREEMENT
June 4,
2008
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DOCS® is a registered service mark of Brinson Patrick
Securities Corporation. |
THIS SALES AGREEMENT
(this “Agreement”) dated as of June 4, 2008 among
Brinson Patrick Securities Corporation, having its principal office
at 330 Madison Avenue, 9 th Floor, New York, New York 10017 (the “Sales
Manager”), Anthracite Capital, Inc., a corporation organized
and existing under the laws of the State of Maryland (the
“Company”), and BlackRock Financial Management, Inc.
(the “Manager”) as to Sections 1.2 and 4.1(g)
only.
WHEREAS , the Company
desires to issue and sell through the Sales Manager shares of its
common stock, par value $0.001 per share (such shares referred to
herein as the “Common Stock”), on the terms set forth
in Article II hereof.
WHEREAS, the Company
and the Sales Manager entered into a Sales Agency Agreement, dated
May 15, 2002, as amended by a First Amendment dated
May 15, 2003 and a Second Amendment dated August 24, 2006
(as so amended, the “ Previous Agreement ”), and
the parties wish this Agreement to replace the Previous
Agreement.
IN CONSIDERATION of
the mutual covenants contained in this Agreement, the Company and
the Sales Manager agree as follows:
ARTICLE I
REPRESENTATIONS AND
WARRANTIES
OF THE COMPANY AND THE
MANAGER
1.1 For purposes of this
Agreement, unless the context requires to the contrary, the term
“Company” shall also include all significant
subsidiaries (as defined in Section 1-02 of Regulation S-X) of
the Company. The Company represents and warrants to, and agrees
with, the Sales Manager that:
(a) The Company meets the
requirements for use of Form S-3 under the Securities Act of 1933,
as amended (the “Act”), and the rules and regulations
thereunder (“Rules and Regulations”), and the Company
is eligible to use Form S-3 for the transactions contemplated by
this Agreement. A registration statement on Form S-3 (Registration
No. 333-69848) with respect to, among other securities, the
Common Stock, including a form of prospectus, has been prepared by
the Company in conformity with the requirements of the Act and the
Rules and Regulations, has been filed with the Securities and
Exchange Commission (the “Commission”) and has been
declared effective by the Commission. No stop order suspending the
effectiveness of such registration statement has been issued, and
no proceeding for that purpose has been instituted or, to the
knowledge of the Company, threatened by the Commission.
Additionally, the Company is eligible to file a new registration
statement on Form S-3 with respect to the Common Stock. Each such
registration statement, as it may have heretofore been or (only to
the extent (i) filed and declared effective by the Commission
after the date hereof and (ii) a prospectus supplement forming
a part of such registration statement and relating to the Common
Stock to be offered and sold pursuant to this Agreement having been
filed pursuant to Rule 424 under the Act) may hereafter be filed,
as amended, is referred to herein as the “Registration
Statement,” and the final form of prospectus included in the
Registration Statement, as amended or supplemented from time to
time relating to the Common Stock, is referred to herein as the
“Prospectus.” Any reference herein to the Registration
Statement, the
Prospectus, or any amendment or
supplement thereto shall be deemed to refer to and include the
documents incorporated (or deemed to be incorporated) by reference
therein, and any reference herein to the terms “amend,”
“amendment” or “supplement” with respect to
the Registration Statement or 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.
(b) Each part of the
Registration Statement, when such part became or becomes effective,
and the Prospectus and any amendment or supplement thereto, on the
date of filing thereof with the Commission and at each Settlement
Date (as hereinafter defined), conformed or will conform in all
material respects with the requirements of the Act and the Rules
and Regulations; each part of the Registration Statement, when such
part became or becomes effective, did not or will 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 not misleading; and the Prospectus and any
amendment or supplement thereto, on the date of filing thereof with
the Commission and at each Settlement Date, did not or will not
include an untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; except that the foregoing shall not apply to statements
in or omissions from any such document in reliance upon, and in
conformity with, written information furnished to the Company by or
on behalf of the Sales Manager, specifically for use in the
Registration Statement, the Prospectus or any amendment or
supplement thereto.
(c) The documents
incorporated by reference in the Registration Statement or the
Prospectus, or any amendment or supplement thereto, when they
became or become effective under the Act or were or are filed with
the Commission under the Securities Exchange Act of 1934, as
amended (the “Exchange Act”), as the case may be,
conformed or will conform in all material respects with the
requirements of the Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder.
(d) The financial statements
of the Company, together with the related schedules and notes
thereto, set forth or included or incorporated by reference in the
Registration Statement and Prospectus, fairly present the financial
condition of the Company as of the dates indicated and the results
of operations, changes in financial position, stockholders’
equity, and cash flows for the periods therein specified, in
conformity with generally accepted accounting principles
consistently applied throughout the periods involved (except as
otherwise stated therein). The summary and selected financial and
statistical data included or incorporated by reference in the
Registration Statement and the Prospectus fairly present the
information shown therein and, to the extent based upon or derived
from the financial statements, have been compiled on a basis
consistent with the financial statements presented
therein.
(e) Deloitte &
Touche LLP, which has expressed their opinion with respect to
financial statements and the supporting schedules, if any, included
or incorporated by reference in the Registration Statement, is an
independent registered public accounting firm with respect to the
Company within the meaning of the Act and the applicable rules and
regulations thereunder adopted by the Commission and the Public
Company Accounting Oversight Board (United States).
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(f) The Company has been duly
organized and is validly existing as a corporation in good standing
under the laws of the State of Maryland. Other than as disclosed in
the Registration Statement, the Company has no other subsidiaries
and does not control, directly or indirectly, any corporation,
partnership, limited liability company, joint venture, association
or other business organization. The Company is duly qualified and
in good standing as a foreign corporation in each jurisdiction in
which the character or location of its assets or properties (owned,
leased or licensed) or the nature of its business makes such
qualification necessary (including every jurisdiction in which it
owns or leases property), except for such jurisdictions where the
failure to so qualify would not have a Material Adverse Effect on
the Company. For purposes of this Agreement, “Material
Adverse Effect” means any adverse effect on the business,
operations, properties or financial condition of the Company that
is (either alone or together with all other adverse effects)
material to the Company and its subsidiaries, taken as a whole, and
any material adverse effect on the issuance and sale of Common
Stock by the Company contemplated under this Agreement. Each of the
Company’s significant subsidiaries (as defined in
Section 1-02 of Regulation S-X) is validly existing as a
corporation, limited liability company or partnership, as
applicable, in its respective jurisdiction of formation. Schedule
1.1(f) hereto identifies each of the Company’s subsidiaries
that is a significant subsidiary of the Company (determined at
December 31, 2007). All of the issued and outstanding capital
stock, limited liability company interests or partnership
interests, as applicable, of each significant subsidiary has been
duly authorized and validly issued and, if applicable, is fully
paid and nonassessable and (except as otherwise disclosed in the
Registration Statement and the Prospectus or would not have a
Material Adverse Effect) is owned by the Company, directly or
indirectly, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity (except as otherwise
disclosed in the Registration Statement and Prospectus, including
without limitation the credit facilities and repurchase agreements
filed as exhibits thereto or described therein, or as would not
have a Material Adverse Effect). The Company has all requisite
corporate power and authority, as applicable, and all necessary
authorizations, approvals, consents, orders, licenses, certificates
and permits of and from all governmental orders or regulatory
bodies or any other person or entity, to own, lease, license and
operate its assets and properties and conduct its business as now
being conducted and as described in the Registration Statement and
the Prospectus, except for such authorizations, approvals,
consents, orders, licenses, certificates and permits the absence of
which would not have a Material Adverse Effect; and no such
authorization, approval, consent, order, license, certificate or
permit contains a materially burdensome restriction other than as
disclosed or incorporated by reference in the Registration
Statement and the Prospectus.
(g) The Company has good
title to each of the items of personal property which are reflected
in the financial statements referred to in Section 1.1(d) or
are referred to in the Registration Statement and the Prospectus as
being owned by the Company and valid and enforceable leasehold
interests in each of the items of real and personal property which
are referred to in the Registration Statement and the Prospectus as
being leased by the Company, in each case free and clear of all
liens, encumbrances, claims, security interests and defects, other
than those described in the Registration Statement and the
Prospectus and those which would not have a Material Adverse
Effect.
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(h) The Company has been
subject to the requirements of Section 12 of the Exchange Act
during the period commencing 12 months preceding the filing of the
Registration Statement and ending on the date hereof (the
“Reporting Period”) and during such Reporting Period
the Company has timely filed all material required to be filed
pursuant to Sections 13(a), 14 and/or 15(d) of the Exchange Act.
All such material conformed in form and substance in all material
respects to the requirements of the Exchange Act and the rules and
regulations thereunder. As of the date of the initial filing of the
Registration Statement on September 21, 2001, and as of the
date hereof, the aggregate market value of the voting and
non-voting common equity held by non-affiliates of the Company was
and is at least $150 million.
(i) The debt financing
employed by the Company to acquire its portfolio of mortgage assets
is not convertible into shares of common stock of the Company or
other equity interests in the Company except as disclosed in the
Registration Statement and the Prospectus.
(j) There is no litigation or
governmental or other proceeding or investigation before any court
or before or by any public body or board pending or, to the
knowledge of the Company, threatened (and the Company does not know
of any basis therefor) against, or involving the assets, properties
or businesses of the Company that would have a Material Adverse
Effect except as described or incorporated by reference in the
Registration Statement.
(k) The Company maintains
insurance (issued by insurers of recognized financial
responsibility) of the types and in the amounts generally deemed
adequate for its businesses and, to the knowledge of the Company,
consistent with insurance coverage maintained by similar companies
in similar businesses, including, but not limited to, insurance
covering real and personal property owned or leased by the Company
against theft, damage, destruction, acts of vandalism and all other
risks customarily insured against, all of which insurance is in
full force and effect, it being understood that the only insurance
held by the Company and its significant subsidiaries are directors
and officers insurance policies.
(l) Subsequent to the
respective dates as of which information is given in the
Registration Statement and the Prospectus, except as described
therein, (i) there has not been any material adverse change in
the assets or properties, business, results of operations or
condition (financial or otherwise) of the Company and its
subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business; (ii) the
Company has not sustained any material loss or interference with
its assets, businesses or properties (whether owned or leased) from
fire, explosion, earthquake, flood or other calamity, whether or
not covered by insurance, or from any labor dispute or any court or
legislative or other governmental action, order or decree;
(iii) since the date of the latest balance sheet included or
incorporated by reference in the Registration Statement and the
Prospectus, except as reflected therein, the Company has not
undertaken any material liability or obligation, direct or
contingent, except such liabilities or obligations undertaken in
the ordinary course of business; and (iv) there has not been
any transaction that is material to the Company, except
transactions in the ordinary course of business or as otherwise
disclosed in the Registration Statement and the
Prospectus.
(m) There is no document or
contract of a character required to be described in the
Registration Statement or the Prospectus or to be filed as an
exhibit to the Registration Statement that is not described or
filed as required. Each document, instrument, contract
and
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agreement of the Company described in
the Registration Statement or the Prospectus or listed as exhibits
to the Registration Statement is in full force and effect and is
valid and enforceable by and against the Company in accordance with
their terms, assuming the due authorization, execution and delivery
thereof by each of the other parties thereto, except as otherwise
disclosed in the Registration Statement or Prospectus or except as
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or
affecting the rights and remedies of creditors or by general
equitable principles. The Company is not, nor to the knowledge of
the Company is any other party, in default in the observance or
performance of any term or obligation to be performed by it under
any such agreement, and no event has occurred which with notice or
lapse of time or both would constitute such a default, except for
any default or event that would not have a Material Adverse Effect.
No default exists, and no event has occurred which with notice or
lapse of time or both would constitute a default, in the due
performance and observance of any term, covenant or condition, by
the Company of any other agreement or instrument to which the
Company is a party or by which it or its properties or business may
be bound or affected, which default or event would have a Material
Adverse Effect.
(n) The Company is not in
violation of any term or provision of its charter or by-laws. The
Company is not in violation of any franchise, license, permit,
judgment, decree, order, statute, rule or regulation of any court
or governmental body having jurisdiction over the Company, where
the consequences of such violation would have a Material Adverse
Effect.
(o) Neither the execution,
delivery and performance of this Agreement by the Company nor the
consummation of any of the transactions contemplated hereby
(including, without limitation, the issuance and sale by the
Company of the Common Stock) will (i) conflict with or result
in the breach of any term or provision of, or constitute a default
(or an event which with notice or lapse of time or both would
constitute a default) under, or result in the execution or
imposition of any lien, charge, encumbrance, claim, security
interest, restriction or defect upon any properties or assets of
the Company pursuant to the terms of, any indenture, mortgage, deed
of trust or other agreement or instrument to which the Company is a
party or its properties or businesses are bound, or (ii) will
violate any franchise, license, permit, judgment, decree, order,
statute, rule or regulation of any court or governmental body
having jurisdiction over the Company that is applicable to the
Company or (iii) will violate any provision of the charter or
by-laws of the Company except, in the case of (i) and (ii), as
would not have a Material Adverse Effect or for which consents or
waivers have already been obtained and are in full force and
effect.
(p) All of the outstanding
shares of capital stock of the Company have been duly authorized
and validly issued and are fully paid and nonassessable and none of
the shares were issued in violation of any preemptive or other
similar right. The Common Stock, when issued and sold pursuant to
this Agreement, will be duly authorized and validly issued, fully
paid and nonassessable and will not be issued in violation of any
preemptive or other similar right. Except as disclosed in the
Registration Statement and the Prospectus, there is no outstanding
option, warrant or other right calling for the issuance of, and
there is no commitment, plan or arrangement to issue, any capital
stock of the Company or any security convertible into or
exercisable or exchangeable for such capital stock, except for
standard dividend reinvestment
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plans. The Common Stock conforms in all
material respects to the description thereof contained in the
Registration Statement and the Prospectus. Any stock options issued
by the Company have been issued in compliance with applicable law,
and the terms and provisions of such stock options were established
in compliance with applicable law except as would not have a
Material Adverse Effect.
(q) Subsequent to the
respective dates as of which information is given in the
Registration Statement and the Prospectus, except as
(x) described or referred to therein, or (y) are not
material (as to clauses (i) and (ii) only), are
consistent with past practice (as to clauses (i) and
(ii) only), or are publicly disclosed, the Company has not
(i) issued any securities or incurred any liability or
obligation, direct or contingent, except such liabilities or
obligations incurred in the ordinary course of business,
(ii) entered into any transaction not in the ordinary course
of business or (iii) declared or paid any dividend or made any
distribution on any shares of its capital stock or redeemed,
purchased or otherwise acquired or agreed to redeem, purchase or
otherwise acquire any shares of its capital stock except for the
dividends declared or paid on the Company’s 9.375% Series C
Cumulative Redeemable Preferred Stock, 8.25% Series D Cumulative
Redeemable Preferred Stock, 12% Series E-1 Cumulative Convertible
Redeemable Preferred Stock, 12% Series E-2 Cumulative Convertible
Redeemable Preferred Stock and 12% Series E-3 Cumulative
Convertible Redeemable Preferred Stock, as applicable.
(r) Except as disclosed in
the Registration Statement and Prospectus, no holder of any
security of the Company has the right, which has not been waived or
fulfilled, to have any security owned by such holder included in
the Registration Statement or any right to demand registration of
any security owned by such holder.
(s) All necessary corporate
action has been duly and validly taken by the Company to authorize
the execution, delivery and performance of this Agreement and the
issuance and sale of the Common Stock by the Company. This
Agreement has been duly and validly authorized, executed and
delivered by the Company and constitutes and will constitute the
legal, valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or
affecting the rights and remedies of creditors or by general
equitable principles. Except for any “blue sky” filings
or Trading Market (as defined below) listing applications to be
filed pursuant hereto or any filings required by the Financial
Industry Regulatory Authority, each approval, consent, order,
authorization, designation, declaration or filing by or with any
regulatory, administrative or other governmental body necessary for
the execution and delivery by the Company of this Agreement and the
consummation of the transactions contemplated hereby and the
issuance and sale of the Common Stock by the Company has been
obtained or made and is in full force and effect. and no such
approval, consent, order, authorization, designation, declaration
or filing is required in connection with the execution, delivery
and performance by the Company of: (i) the Amended and
Restated Investment Advisory Agreement, dated as of March 31,
2008, by and between the Manager and the Company; (ii) the
Amended and Restated Accounting Services Agreement, dated as of
March 15, 2007, by and between the Manager and the Company; or
(iii) the Amended and Restated Administration Agreement, dated
as of March 15, 2007 by and between the Company and the
Manager (collectively, the “Management Agreements”).
The Company
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will use its best reasonable efforts to
cause the Common Stock to be listed for trading on the Trading
Market. For purposes of this Agreement, the “Trading
Market” is (i) the New York Stock Exchange, Inc., and
(ii) each other securities exchange on which the common stock
of the Company is listed for trading.
(t) The Company has not
incurred any liability for a fee, commission or other compensation
on account of the employment of a broker or finder in connection
with the transactions contemplated by this Agreement other than as
contemplated hereby or as described in the Registration
Statement.
(u) The Company is conducting
its business in compliance with all applicable laws, rules and
regulations of the jurisdictions in which it is conducting
business, except where the failure to be so in compliance would not
have a Material Adverse Effect.
(v) No transaction has
occurred between or among the Company and any of its officers or
directors or any affiliate or affiliates of any such officer or
director that is required to be described in and is not described
in the Registration Statement and the Prospectus.
(w) The Company has not
taken, nor will it take, directly or indirectly, any action
designed to or which might reasonably be expected to cause or
result in, or which has constituted or which might reasonably be
expected to constitute, the stabilization or manipulation of the
price of the Common Stock to facilitate the sale or resale of any
of the Common Stock.
(x) The Company has filed all
federal, state, local and foreign tax returns which are required to
be filed through the date hereof (and will file all such tax
returns when and as required to be filed after the date hereof), or
has received extensions thereof, and has paid all taxes shown on
such returns to be due on or prior to the date hereof (and will pay
all taxes shown on such returns to be due after the date hereof)
and all assessments received by it to the extent that the same are
material and have become due, except where the failure to file such
a return or pay such amount would not have a Material Adverse
Effect.
(y) The Company has met the
qualification requirements for a “real estate investment
trust” during its taxable years ending on December 31,
1999 to December 31, 2007 and its proposed method of
operations will enable it to continue to meet the requirements for
qualification and taxation as a “real estate investment
trust” under the Internal Revenue Code of 1986, as amended
(the “Code”), assuming no change in the applicable
underlying law. The Company does not know of any current event that
would cause or is likely to cause the Company to fail to qualify as
a “real estate investment trust” at any
time.
(z) The Company is not an
“investment company” within the meaning of the
Investment Company Act of 1940, as amended.
(aa) The Company’s
systems of internal accounting controls taken as a whole are
sufficient to meet the broad objectives of internal accounting
control insofar as those objectives pertain to the prevention or
detection of errors or irregularities in amounts that would be
material in relation to the Company’s financial statements;
and, to the best of the Company’s knowledge, neither the
Company nor any employee or agent thereof has made any payment of
funds of the Company or received or retained any funds, and no
funds of the Company have been set aside to be used for any
payment, in each case in violation of any law, rule or
regulation.
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(bb) The Company is not
involved in any labor dispute and, to the knowledge of the Company,
no such dispute has been threatened, except for such disputes as
would not have a Material Adverse Effect on the Company, or subject
the Company or its shareholders to any material liability or
disability.
(cc) Except as disclosed in
the Registration Statement or the Prospectus, (i) there has
been no storage, disposal, generation, manufacture, refinement,
transportation, handling or treatment of toxic wastes, hazardous
wastes or hazardous substances by the Company or any of its
subsidiaries (or to the knowledge of the Company, any of their
predecessors in interest) at, upon or from any of the property now
or previously owned or leased by the Company or its subsidiaries in
violation of any applicable law, ordinance, rule, regulation,
order, judgment, decree or permit or that would require remedial
action under any applicable law, ordinance, rule, regulation,
order, judgment, decree or permit, except for any violation or
remedial action which would not have a Material Adverse Effect;
(ii) there has been no material spill, discharge, leak,
emission, injection, escape, dumping or release of any kind onto
such property or into the environment surrounding such property of
any toxic wastes, solid wastes, hazardous wastes or hazardous
substances due to or caused by the Company or any of its
subsidiaries, except for any such spill, discharge, leak, emission,
injection, escape, dumping or release that would not have a
Material Adverse Effect; and (iii) the terms “hazardous
wastes,” “toxic wastes” and “hazardous
substances” shall have the meanings specified in any
applicable local, state, federal and foreign laws or regulations
with respect to environmental protection.
(dd) There is and has been no
failure on the part of the Company or, to the knowledge of the
Company, any of the Company’s directors or officers, in their
capacities as such, to comply in all material respects with any
provision of the Sarbanes-Oxley Act of 2002 and the rules and
regulations promulgated in connection therewith, including without
limitation Section 402 related to loans and Sections 302 and
906 related to certificates.
1.2 The Manager hereby
represents, warrants and agrees with the Sales Manager
that:
(a) The Manager has been duly
organized and is validly existing as a corporation and is in good
standing under the laws of Delaware. The Manager is duly qualified
to do business and is in good standing in each jurisdiction in
which the character or location of its properties (owned, leased or
licensed) or the nature or conduct of its business makes such
qualification necessary, except for those failures to be so
qualified or in good standing which would not in the aggregate have
a material adverse effect on the business, operations, properties
or financial condition of the Manager and its subsidiaries, taken
as a whole (a “Manager Material Adverse Effect”). The
Manager has all requisite power and authority, and all necessary
governmental licenses, to own, lease and operate its properties and
conduct its business as
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