EXHIBIT 10.1
AMENDMENT NO. 1 TO INVESTMENT AGREEMENT
AMENDMENT NO. 1 (this "Amendment") dated as of December 2,
2002 to the Investment Agreement (as defined below) between CRIIMI MAE INC., a
Maryland corporation (the "Company") and BRASCAN REAL ESTATE FINANCIAL
INVESTMENTS LLC, a Delaware limited liability company (the "Investor").
WITNESSETH:
WHEREAS the Company and the Investor are parties to an
Investment Agreement, dated as of November 14, 2002 (the "Investment
Agreement"); and
WHEREAS the Company and the Investor desire to amend the
Investment Agreement.
NOW, THEREFORE, in consideration of the premises,
representations, warranties, covenants and agreements set forth herein, the
parties agree as follows:
Section 1. Amendment. The Investment Agreement is hereby amended as
follows:
(a) Sections 4.2(l), 8.1(f) and 8.9 of the Investment Agreement are hereby
amended by deleting the references therein to "December 4, 2002" and replacing
each such reference with "December 11, 2002".
(b) Section 7.5 of the Investment Agreement is hereby amended by deleting from
the first sentence of such section the phrase "the second Business Day prior to
the Due Diligence Termination Date" and replacing it with "December 5, 2002".
Section 2. Reference to and Effect in the Investment Agreement.
(a) Upon the date hereof, each reference in the Investment Agreement to "this
Agreement", "hereunder", "hereof" or words of like import referring to the
Investment Agreement shall mean and be a reference to the Investment Agreement
as amended hereby.
(b) Except as specifically amended above, the Investment Agreement is and shall
continue to be in full force and effect and is hereby in all respects ratified
and confirmed.
(c) The execution, delivery and effectiveness of this Amendment shall not,
except as expressly provided herein, operate as a waiver of any right, power or
remedy of either party to the Investment Agreement.
Section 3. Representations and Warranties of the Company. The Company warrants
and represents as follows:
(a) Organization, Standing and Power. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Maryland. The Company has the necessary corporate power and authority to
execute, deliver and perform this Amendment.
(b) Authority. The execution, delivery and performance of this Amendment by the
Company has been duly and validly authorized by the board of directors of the
Company and by all other necessary corporate action on the part of the Company.
This Amendment constitutes the legal, valid and binding obligations of the
Company, enforceable against the Company in accordance with its terms except as
such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium and other similar laws and equitable principles
relating to or limiting creditors' rights generally.
Section 4. Representations and Warranties of the Investor. The Investor warrants
and represents as follows:
(a) Organization, Standing and Power. The Investor is a limited liability
company duly organized, validly existing and in good standing under the laws of
the State of Delaware. The Investor has the necessary power and authority to
execute, deliver and perform this Amendment.
(b) Authority. The execution, delivery and performance of this Amendment by the
Investor has been duly and validly authorized by all necessary action on the
part of the Investor. This Amendment constitutes the legal, valid and binding
obligations of the Investor, enforceable against the Investor in accordance with
its terms except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium and other similar laws and equitable
principles relating to or limiting creditors' rights generally.
Section 5. Governing Law. THIS AMENDMENT SHALL BE CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO ITS
PRINCIPLES OF CONFLICTS OF LAWS.
Section 6. Headings. The descriptive headings of the sections of this Amendment
are for convenience only and do not constitute a part of this Amendment.
Section 7. Counterparts. This Amendment may be executed in one or more
counterparts and by different parties in separate counterparts. All such
counterparts shall constitute one and the same agreement and shall become
effective when one or more counterparts have been signed by each party and
delivered to the other party.
Section 8. Remedies; Waiver. All rights and remedies existing under this
Amendment are cumulative to, and not exclusive of, any rights or remedies
otherwise available. No failure on the part of any party to exercise or delay in
exercising any right hereunder shall be deemed a waiver thereof, nor shall any
single or partial exercise preclude any further or other exercise of such or any
other right.
Section 9. Severability. Any invalidity, illegality or unenforceability of any
provision of this Amendment in any jurisdiction shall not invalidate or render
illegal or unenforceable the remaining provisions hereof in such jurisdiction
and shall not invalidate or render illegal or unenforceable such provisions in
any other jurisdiction. The Company and the Investor shall endeavor in good
faith negotiations to replace any invalid, illegal or unenforceable provision
with a valid, legal and enforceable provision, the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provision.
BRASCAN REAL ESTATE FINANCIAL INVESTMENTS LLC
By: BRASCAN REAL ESTATE FINANCIAL PARTNERS LLC,
its Managing Member
/s/Xxxxx Xxxxxxxx
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Name: Xxxxx Xxxxxxxx
Title: President
CRIIMI MAE INC.
/s/Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Chairman
