EXHIBIT 4(mm)
Sixth Amendment to the Amended and Restated Credit Agreement among CRIIMI
MAE Inc. and Signet Bank/Virginia and the First Amendment to the Amended and
Restated Collateral Pledge Agreement
March 31, 1995
Signet Bank/Virginia
0000 Xxxxx Xxxxxxxxx
Xxxxxx, Xxxxxxxx 00000-0000
Re: Sixth Amendment to Credit Agreement and
First Amendment to Pledge Agreement
Ladies and Gentlemen:
Reference is made to the (i) Amended and Restated Credit Agreement dated as of
December 22, 1992, as amended by the First Amendment thereto dated April 29,
1993, the Second Amendment thereto dated June 30, 1993, the Third Amendment
thereto dated September 14, 1993, the Fourth Amendment thereto dated April 28,
1994 and the Fifth Amendment thereto dated December 9, 1994 (the "Credit
Agreement") among CRIIMI MAE Inc. (the "Borrower"), Signet Bank/Virginia, as the
Bank party thereto (the "Bank") and Signet Bank/Virginia, as Agent (the "Agent")
and (ii) Amended and Restated Collateral Pledge Agreement dated as of December
31, 1991 and amended and restated as of December 29, 1992 (the "Pledge
Agreement"). Except as otherwise provided, capitalized terms used herein and
not defined shall have the meanings set forth in the Credit Agreement and the
Pledge Agreement.
The Borrower has requested that (i) the Credit Agreement be amended as follows:
(a) that the definition of "Euro-Dollar Margin", which is contained in Section
2.05(a) of the Credit Agreement, be changed to three-fourths of one percent; (b)
that the definition of "A Loan Maturity Date", which is contained in Section
1.01 of the Credit Agreement, be changed to April 1, 1997; (c) that the
definition of "Euro-Dollar Interest Period", which is contained in Section 1.01
of the Credit Agreement, be revised to allow alternative Euro-Dollar Interest
Periods; (d) that the definition of "Termination Date", which is contained in
Section 1.01 of the Credit Agreement, be changed to April 1, 1997; (e) that the
required quarterly principal payments as reflected in Section 2.03(a) of the
Credit Agreement be adjusted; (f) that Section 5.01(f) of the Credit Agreement
be amended to eliminate the necessity for an accountant's statement pursuant
thereto in certain cases; (g) that Section 5.05(f) of the Credit agreement be
amended to increase the maximum amount of debt allowable and to allow for Debt
for the financing of mortgage investments; and that the Credit Agreement be
amended in certain other respects as set forth herein; (ii) the Pledge Agreement
be amended to reflect certain adjustments in the collateral requirements
contained in Sections 3.09, 3.10 and 3.11 of the Pledge Agreement; and (iii) the
A Loan Note be amended and restated to reflect the new A Loan Maturity Date.
The Bank and the Agent are willing to agree to such requests, subject to the
terms and conditions contained herein.
Accordingly, upon the acceptance of this Sixth Amendment to the Credit Agreement
and First Amendment to the Pledge Agreement by the Bank and the Agent in the
space provided for that purpose below, the parties hereto agree as follows:
I. Amendments to the Credit Agreement.
A. The definition of "Euro-Dollar Margin", which is contained in Section
2.05(a) of the Credit Agreement, is hereby amended to read as follows:
II. "Euro-Dollar Margin" means three-fourths of one percent (.75%).
A. The definition of "A Loan Maturity Date," which is contained in
Section 1.01 of the Credit Agreement, is hereby amended to read as
follows:
III. "A Loan Maturity Date" means April 1, 1997.
A. The definition of "Termination Date," which is contained in Section
1.01 of the Credit Agreement, is hereby amended to read as follows:
IV. "Termination Date" means April 1, 1997.
A. The first clause of the definition of "Euro-Dollar Interest Period",
which is contained in Section 1.01 of the Credit Agreement, is hereby
amended to read as follows:
V. "Euro-Dollar Interest Period" means: with respect to each Euro-Dollar Loan,
the period commencing on the date that such Loan is made or continued and
ending one, two or three months thereafter, as the Company may select as
provided in Section 2.04(a) hereof, with any subsequent Euro-Dollar
Interest Period commencing on the last day of the immediately preceding
Euro-Dollar Interest Period and ending one, two or three months thereafter
as selected by the Company in Section 2.04 hereof; provided that
A. Section 2.03(a) of the Credit Agreement is hereby amended in its
entirety to read as follows:
SECTION 2.03 Notes.
(a) The A Loans of each Bank are evidenced by the A Loan Notes. The B Loans of
each Bank shall be evidenced by a single B Loan Note payable to the order
of such Bank for the account of the Applicable Lending Office in an amount
equal to the aggregate outstanding principal amount of such Bank's B Loans.
The aggregate outstanding principal amount of the A Loans shall be payable
in eight (8) consecutive quarterly installments as follows: one million six
hundred fourteen thousand six hundred ten and no/l00 ($1,614,610.00)
Dollars, payable to the Bank, to be applied to the Bank's A Loan
Commitment, subject to the provisions of Section 2.08 hereof, on the first
Domestic Business Day of each July, October, January and April, beginning
on the first Domestic Business Day of July, 1995, until the A Loans are
fully paid. The aggregate outstanding principal amount of the B Loans
shall be fully paid on the last day of the Euro-Dollar Interest Period
ending in March, 1995. Notwithstanding any other provision of this Section
2.03(a), (i) for so long as the Loans are outstanding as Daily Federal
Funds Loans, Term Funds Loans or Prime Rate Loans pursuant to Article VIII,
such principal payments shall be payable on the first Domestic Business Day
of each January, April, July and October occurring after the date of the
conversion to Daily Federal Funds Loans, Term Federal Funds Loans or Prime
Rate Loans and (ii) the final payment of both principal and interest, if
not sooner paid, shall be due (x) with respect to the A Loans, on the A
Loan Maturity Date and (y) with respect to the B Loans, on the B Loan
Maturity Date.
Section 2.04(a) of the Credit Agreement is hereby amended in its entirety
to read as follows:
(a) Provided that no Event of Default has occurred and is continuing, and
except as provided in Article VIII, the Loans shall be continued as Euro-
Dollar Loans from any current Interest Period into each subsequent Interest
Period, provided that prior to the termination of each Euro-Dollar Interest
Period with respect to each Euro-Dollar Loan, Borrower shall give written
notice (a "Rollover Notice") to the Banks of the Euro-Dollar Interest
Period which shall be applicable to such portion of the Loan which remains
outstanding upon the expiration of such Euro-Dollar Interest Period. Such
Rollover Notice shall be given to the Banks at least three Euro-Dollar
Business Days prior to the termination of such Euro-Dollar Interest Period.
Each Rollover Notice shall be irrevocable and effective upon notification
thereof to the Banks. If the required Rollover Notice shall not have been
timely received by the Banks in accordance with this Section 2.04(a) prior
to the expiration of the then relevant Euro-Dollar Interest Period in
effect when such notice was required to be given, Borrower shall be deemed
to have selected a Euro-Dollar Interest Period of three months to be
applicable to such portion of the Loan upon expiration of such Euro-Dollar
Interest Period and to have given the Banks notice of such selection.
Section 2.10 of the Credit Agreement is hereby amended in its entirety to
read as follows:
SECTION 2.10 Funding Losses. If (i) the Borrower makes any payment of
principal with respect to any Fixed Rate Loan (pursuant to Section 2.08,
Article VI or VIII or otherwise) on any day other than the last day of the
Interest Period applicable thereto, (ii) the Borrower fails to borrow the B
Loans in accordance with a Notice of Borrowing delivered to the Agent
pursuant to Section 2.02, (iii) the Banks, upon the request of the
Borrower, agree not to continue or convert the Loans in accordance with a
Notice of Conversion/Continuation delivered to the Banks pursuant to
Section 2.04(b), or (iv) the Borrower fails to prepay the Loans in
accordance with any notice of prepayment delivered to the Banks pursuant to
Section 2.08(a), the Borrower shall reimburse each Bank within 15 days
after demand for any resulting loss or expense incurred by it (or by a
Participant in the Loan so paid or not borrowed or continued), including
(without limitation) any loss incurred in obtaining, liquidating or
employing deposits from third parties for the period after any such payment
or failure to borrow or continue, provided that such Banks shall have
delivered to the borrower a certificate as to the amount of such loss or
expense, which certificate shall be conclusive in the absence of manifest
error. The Banks will act in good faith and in a commercially reasonable
manner to mitigate any such loss or expense. Notwithstanding any provision
to the contrary contained herein, the Borrower shall not be required to
reimburse the Banks for any resulting loss or expense incurred pursuant to
this Section 2.10 for (i) regularly scheduled principal payments made
pursuant to Section 2.03 hereof that are made on the first Domestic
Business Day of each July, October, January and April and (ii) optional
prepayments made pursuant to Section 2.08 hereof that are made on the first
Domestic Business Day of each July, October, January and April.
Section 5.01(f) of the Credit Agreement is hereby amended in its entirety
to read as follows:
Simultaneously with the delivery of each set of financial statements
referred to in clause (a) above, a statement of the firm of independent
public accountants which reported on such statements whether anything has
come to their attention to cause them to believe that any Default existed
during the period covered by such financial statements or existed on the
date of such statements; provided, however, that if such independent public
accountants shall deliver an unqualified opinion with each set of financial
statements referred to in clause (a) above, the statement referred to in
this clause (f) shall not be required.
Section 5.05(a)(iii) of the Credit Agreement is hereby amended to read as
follows:
(iii) (A) Debt of the Borrower under the CIBC Credit Agreement, (B) Debt of
the Borrower under (x) the Nomura Credit Facilities, as defined in the
Third Amendment to the Credit Agreement dated September 14, 1993 and (y)
the Committed Master Repurchase Agreement Governing Purchases and Sales of
Participation Certificates and the Committed Master Repurchase Agreement,
each as amended from time to time, each dated as of November 30, 1993 and
each attached as Exhibit A to the Fourth Amendment to the Credit Agreement
dated April 28, 1994 (jointly, the "Additional Nomura Credit Facility") and
(C) other Debt of the Borrower on terms and conditions similar to those
applicable to the Debt described in clauses (A) and (B) of this subsection;
provided, that the aggregate amount of all such Debt permitted under this
subsection (a)(iii) shall at no time exceed $700,000,000;
Section 5.05(a) of the Credit Agreement is hereby amended, by adding the
following subparagraph (ix) at the end thereof:
(ix) Debt of the Borrower for the financing of mortgage investments (other
than Collateral) up to a maximum aggregate amount of Debt for such purpose
of $100,000,000.
Section 5.08 of the Credit Agreement is hereby amended to read as follows:
Section 5.08 Interest Rate Protection Agreements. The Borrower shall
enter into and cause to remain in effect one or more Interest Rate
Protection Agreements satisfying each of the following conditions:
(a) the Interest Rate Protection Agreements shall be in form and substance
and in a notional principal amount satisfactory to the Borrower and
the Required Banks;
(b) the Borrower shall have in place Interest Rate Protection Agreements,
or other interest rate hedging instruments acceptable to the Bank such
that the notional aggregate principal amount is at least equal to
seventy-five (75%) percent of the aggregate Floating Rate Debt of the
Borrower, whereby "Floating Rate Debt" is defined as any debt which
has interest payments calculated on other than a fixed interest rate
basis;
(c) the Interest Rate Protection Agreements shall provide that the
Borrower's payment amount, if any, be calculated on the basis of a
fixed rate of interest on the notional principal amount thereof;
(d) the counterparty to the Interest Rate Protection Agreements shall be a
Bank or a financial institution whose long-term debt is rated "A-" or
better by Standard & Poor's or "A3" or better by Xxxxx'x; and
(e) if the counterparty to an Interest Rate Protection Agreement is a
Bank, the Borrower's obligations under any such Interest Rate
Protection Agreement shall be secured by the pledge of Eligible
collateral in amounts and on terms and conditions reasonably
satisfactory to such Bank.
I. Amendments to the Pledge Agreement.
A. Section 3.09(a) of the Pledge Agreement is hereby amended in its
entirety to read as follows:
(a) The Aggregate Fair Market Value of the Initial Collateral with
respect to the A Loans will be at least equal to 175 percent of the
aggregate principal amount of the A Loans made by the Banks on the related
Funding Date. The Aggregate Fair Market Value of the Initial Collateral
with respect to the B Loans will be at least equal to the excess of (i) 175
percent of the sum of (A) the aggregate amount of the B Loan Commitments of
the Banks and (B) the aggregate principal amount of the A Loans outstanding
on the Funding Date for the B Loans over (ii) the Aggregate Fair Market
Value of Eligible Collateral subject to the Lien of this Agreement on such
Funding Date (before giving effect to the addition of such Initial
Collateral). After the first Funding Date, in the event that the Aggregate
Fair Market Value shown on any Certificate of Collateral Value delivered to
the Banks pursuant to Section 3.08(b) or, subject to the procedures for
review and reconciliation set forth in Section 3.08, on any Letter
Reviewing the Collateral Calculation delivered to the Banks and the
Collateral Agent pursuant to Section 3.08(c) as of the Valuation Date of
such Certificate or Letter is less than 150 percent of the aggregate
principal amount of the Loans outstanding on the date thereof, the
Borrower, (i) within ten Domestic Business Days after delivery to the Banks
and the Collateral Agent of such Certificate of Collateral Value or Letter
Reviewing Collateral Calculation, as the case may be, shall, unless
otherwise cured as a result of an increase in the Aggregate Fair Market
Value of the Collateral, prepay Loans or deliver to the Collateral Agent
sufficient Eligible Collateral, so that the Aggregate Fair Market Value of
Eligible Collateral subject to the Lien of this Agreement shall be at least
equal to 160 percent of the aggregate principal amount of the Loans
outstanding on such day and (ii) within ten Domestic Business Days after
delivery to the Banks and the Collateral Agent of the Certificate of
Collateral Value as described in (i) above or letter reviewing Collateral
Calculation, as the case may be, shall, unless otherwise cured as a result
of an increase in the Aggregate Fair Market Value of the Collateral, prepay
Loans or deliver to the Collateral Agent sufficient Eligible Collateral, so
that the Aggregate Fair Market Value of Eligible Collateral subject to the
Lien of this Agreement shall be at least equal to 175 percent of the
aggregate principal amount of the Loans outstanding on such day. If
additional Eligible Collateral is delivered by the Borrower in satisfaction
of the provisions of this Section 3.09, such Eligible Collateral shall be
delivered to the Collateral Agent, in the manner provided under
Sections 2.01 and 2.02 for Collateral of such type, together with (a) a
supplementary Certificate of Collateral Value dated the date of the
delivery of the Eligible Collateral (which date shall be the Valuation Date
for such Certificate) describing the additional Eligible Collateral and
showing that the Aggregate Fair Market Value of the Eligible Collateral as
of the date of such Certificate, and giving effect to the prepayment of
Loans and delivery of the additional Eligible Collateral hereunder, equals
or exceeds the amounts required hereunder, (b) an Assurance Letter of the
Borrower in the form set forth in Exhibit C with respect to such additional
Eligible Collateral, (c) a receipt of the Collateral Agent in the form of
Exhibit D with respect to such additional Eligible Collateral delivered as
required by Section 2.03, and (d) if requested by the Banks, an Opinion of
Counsel, in form and substance satisfactory to the Banks, relating to the
perfection and, with respect to any Collateral issued in registered form
and evidenced by a certificate, including Liquidating REIT Stock, priority
of the Lien hereof with respect to such additional Eligible Collateral.
B. Section 3.10(a) of the Pledge Agreement is hereby amended in its
entirety to read as follows:
a. In the event that the Aggregate Fair Market Value of Eligible
Collateral subject to the Lien of this Agreement is equal to or
greater than 185 percent of the aggregate principal amount of the
Loans outstanding, the Borrower may furnish to the Banks and the
Collateral Agent an Officer's Certificate requesting the release
of cash or Permitted Investments constituting all or a portion of
the Eligible Collateral or the reassignment to the Borrower of
any other Collateral, which Officer's Certificate shall state the
date (the "Removal Date") of the proposed release and/or
reassignment (which shall not be earlier than five Domestic
Business Days after delivery of such Officer's Certificate and
shall be the first Domestic Business Day of January, April, July
or October) and shall set forth facts showing that the release
and/or reassignment is authorized by this Section 3.10. On the
Removal Date, the Borrower shall deliver, or cause to be
delivered, to the Banks and the Collateral Agent a Certificate of
Collateral Value (separately describing and valuing the cash and
Permitted Investments to be released and the other Collateral to
be reassigned and dated, and containing valuations as of, the
Removal Date) which shows that the Aggregate Fair Market Value of
Eligible Collateral subject to the Lien of this Agreement is
equal to or greater than 185 percent of the aggregate principal
amount of Loans outstanding and, if the Collateral to be removed
were not included in the Collateral, the Aggregate Fair Market
Value of Eligible Collateral as of the Removal Date then
remaining subject to the Lien of this Agreement would
nevertheless be equal to or greater than 175 percent. Promptly
after receipt of such Certificate of Collateral Value, the Agent
shall, or shall direct the Collateral Agent to, promptly release
and/or reassign and deliver, without recourse, representation or
warranty of any kind, the cash, Permitted Investments or other
Collateral specified in such Officer's Certificate to the
Borrower (or as the Borrower directs) and the Banks and the
Collateral Agent shall promptly execute and deliver to the
Borrower such instruments of transfer, assignment, release,
discharge, termination and satisfaction and evidence of such
release and delivery, without recourse, representation or
warranty of any kind, in such forms as the Borrower may
reasonably request to remove from the Lien of this Agreement such
Collateral, to vest in the Borrower such Collateral and to
evidence properly such action. It is understood that the
Borrower may exercise its rights under and subject to the
conditions of this Section 3.10 to recover sole possession of
Collateral, including, without limitation, that resulting from
changes in the Aggregate Fair Market Value of Eligible Collateral
subject to the Lien of this Agreement.
C. Section 3.11(a) of the Pledge Agreement is hereby amended in its
entirety to read as follows:
(a) In the event that the Aggregate Fair Market Value of Eligible
Collateral subject to the Lien of this Agreement is equal to or
greater than 175 percent of the aggregate principal amount of the
Loans outstanding and subject to Sections 3.11(b) and (c), the
Borrower may, at its option exercisable from time to time,
substitute additional Eligible Collateral for Collateral (other
than Liquidating REIT Stock) subject to the Lien of this
Agreement. Such additional Eligible Collateral shall be
delivered to the Collateral Agent in the manner provided under
Sections 2.01 and 2.02 for Collateral of such type. The term
"Substitution Notice Date" shall mean, with respect to such
substitution, a date which is the third Domestic Business Day
prior to the Domestic Business Day specified in a written notice
of substitution by the Borrower ("Substitution Notice") as the
date on which withdrawal of Eligible Collateral in connection
with such substitution is to occur pursuant to the terms hereof.
The term "Substitution Date" shall mean the date on which such
substitution is to occur.
3. Amended and Restated A Loan Note. The form of Amended and Restated A
Loan Note is attached hereto as Exhibit A.
4. Representations and Warranties. The Borrower represents and warrants
that, (i) all representations and warranties made in or in connection with the
Credit Agreement, this Sixth Amendment thereto and each other Loan Document are
true, correct and complete on and as of the date hereof and (ii) no event which
would constitute a Default under the Credit Agreement, as amended hereby, or any
other Loan Document has occurred and is continuing.
5. Conditions of Amendment. The agreement of the Banks and the Agent set
forth in Paragraph 1 of this Sixth Amendment to the Credit Agreement is subject
to the satisfaction of the following conditions precedent:
(a) The Bank and the Agent shall have received the following, all of
which must be satisfactory in form and substance to the Bank and
the Agent, in their discretion:
(1) this Sixth Amendment to the Credit Agreement and First
Amendment to the Pledge Agreement, duly executed by the
Borrower, the Bank and the Agent; and
(2) any additional agreements, opinions, certifications,
instruments and other documents relating to this Sixth
Amendment to the Credit Agreement and First Amendment to the
Pledge Agreement, the Credit Agreement or the Pledge
Agreement that the Bank or the Agent may reasonably deem
necessary or desirable.
(b) All representations and warranties made in or in connection with
the Credit Agreement, this Sixth Amendment to the Credit
Agreement and First Amendment to the Pledge Agreement and each
other Loan Document, shall be true, correct and complete on and
as of the date hereof.
(c) No Default shall have occurred and be continuing.
6. No Claims or Defenses. The Borrower acknowledges and agrees that its
obligations under the Loan Documents are its valid obligations and, as of the
date hereof, there are no claims, setoffs or defenses to the payment or
performance by the Borrower of such obligations, and that the Bank and the Agent
may enforce the payment and performance of such obligations as set forth in the
Loan Documents.
7. Counterpart Execution. This Sixth Amendment to the Credit Agreement
and First Amendment to the Pledge Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
8. GOVERNING LAW. THIS SIXTH AMENDMENT TO THE CREDIT AGREEMENT AND FIRST
AMENDMENT TO THE PLEDGE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF VIRGINIA WITHOUT GIVING EFFECT
TO THE CHOICE OF LAW RULES THEREOF.
9. References to Credit Agreement and Pledge Agreement. Except as herein
specifically amended, the Credit Agreement and Pledge Agreement shall remain in
full force and effect in accordance with their respective terms. Whenever
reference is made in any note, document, letter or conversation, such reference
shall, without more, be deemed to refer to the Credit Agreement or the Pledge
Agreement, as the case may be, as both are amended hereby.
CRIIMI MAE INC.
By: /s/ Xxx X. Xxxxx
---------------------------
Xxx X. Xxxxx
Executive Vice President
& Treasurer
Accepted and agreed to as of
the date first written above:
SIGNET BANK/VIRGINIA, as Assignee
By: /s/ Xxxxx X. Xxxxxx
-------------------------------
Xxxxx X. Xxxxxx, Vice President
SIGNET BANK/VIRGINIA, as Agent
By: /s/ Xxxxx X. Xxxxxx
-------------------------------
Xxxxx X. Xxxxxx, Vice President
