EXHIBIT 4(d)
EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT dated as of January 14, 2003 (this
"Agreement"), between CRIIMI MAE INC., a Maryland corporation (the "Company"),
and BRASCAN REAL ESTATE FINANCE FUND I, L.P., a Delaware limited partnership
(the "Investor").
WITNESSETH:
WHEREAS pursuant to the Investment Agreement dated as of November 14, 2002
(as amended by Amendment No. 1, dated as of December 2, 2002, and Amendment No.
2, dated as of January 13, 2003, the "Investment Agreement"; certain terms used
but not defined herein shall have the meanings assigned thereto in the
Investment Agreement), between the Company and Brascan Real Estate Financial
Investments LLC, the Investor will become the owner in the aggregate of
1,212,617 shares (the "Purchased Stock") of common stock, par value $.01 per
share, of the Company (the "Common Stock") and warrants to purchase 336,835
additional shares of Common Stock (the "Warrant Shares"; collectively with the
Purchased Stock, the "Registrable Shares"; provided that in the event that any
shares of Common Stock or other securities are 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 (including pursuant to a
forward or reverse stock split), or in exchange by the Company generally for, or
in replacement by the Company generally of, Registrable Shares, the number of
shares constituting Registrable Shares shall be adjusted accordingly); and
WHEREAS the Company wishes to grant the Investor certain rights relating to
the registration of the Registrable Shares.
NOW, THEREFORE, in consideration of the agreements, covenants,
representations and warranties contained herein and in the Investment Agreement,
the parties hereto agree as follows:
SECTION 1. Demand Registrations. (a) At any time after the first
anniversary of the date hereof, the Investor may request registration under the
Securities Act of 1933, as amended (the "Securities Act"), of all or part of the
Registrable Shares for sale in the manner specified in such request; provided,
however, that the Company shall not be obligated to register Registrable Shares
pursuant to this Section 1 on more than four occasions in the aggregate. All
registrations requested pursuant to this Section 1 shall be referred to herein
as "Demand Registrations".
(b) Subject to Section 5(b), a registration will not count as a Demand
Registration for purposes of the proviso to Section 1 unless it has become
effective.
(c) The Company and the Investor shall, upon mutual agreement, designate
one or more managing underwriters of nationally recognized standing, if
applicable, for such offering.
SECTION 2. Piggyback Rights. (a) Whenever the Company proposes to register
any Common Stock under the Securities Act on a registration statement other than
Form S-4 or Form S-8 (or any success or forms thereto), the Company will give
prompt written notice to the Investor of its intention to effect such a
registration (which notice shall be given not less than 15 days prior to the
date the registration statement is to be filed) and, subject to the terms
hereof, will include in such registration (a "Piggyback Registration") all
Registrable Shares with respect to which the Company has received a written
request from the Investor for inclusion therein within ten days after the
receipt of the Company's notice.
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(b) If the managing underwriters for such offering advise the Company in
writing that in their opinion the number of securities to be registered and sold
for the account of the Company, Registrable Shares and other securities
requested to be included in such Piggyback Registration exceeds the number of
Registrable Shares, securities to be registered and sold for the account of the
Company and other securities that can be sold in such offering, then the Company
will include in such registration only: (x) first, any securities the Company
proposes to sell for its own account or is required to include under any
agreement of the Company, and (y) second, Registrable Shares requested to be
included in such registration to the extent that, in the opinion of such
underwriters, they can be sold.
SECTION 3. Holdback. The Company agrees (and shall sign an agreement to
such effect in the usual form of the managing underwriters, if the managing
underwriters request such agreement) not to effect any public sale or
distribution of Common Stock, or any securities convertible into or exchangeable
or exercisable for Common Stock, during the 15 days prior to and the 90-day
period beginning on the effective date of any underwritten Demand Registration
or Piggyback Registration (except as part of such underwritten registration).
SECTION 4. Registration Procedures. (a) Whenever the Investor has requested
that any Registrable Shares be registered pursuant to this Agreement, the
Company will use all reasonable efforts promptly to effect the registration and
the sale of such Registrable Shares (subject to the limitations in Sections
1(a), 1(c) and 2(b)) in accordance with the intended method of disposition
thereof, and pursuant thereto the Company will use all reasonable efforts to:
(i) prepare (and afford counsel for the Investor reasonable opportunity to
review and comment on) and file with the United States Securities and Exchange
Commission (the "Commission") within 60 days (or if the Company shall not then
be eligible to use Form S-3, 90 days) of the date of such request a registration
statement with respect to such Registrable Shares and cause such registration
statement to become and remain effective for such period as may be reasonably
necessary to effect the sale of such securities as described in such request,
but in no event for a period in excess of 120 days; provided, however, that such
period shall be extended by one day for each day that the distribution must be
suspended by the Investor pursuant to Section 4(b)(ii).
(ii) prepare (and afford counsel for the Investor reasonable opportunity to
review and comment on) and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective and
comply with the provisions of the Securities Act with respect to the disposition
of all securities covered by such registration statement during such period in
accordance with the intended methods of disposition by the Investor set forth in
such registration statement;
(iii) furnish to the Investor and the underwriters of the Registrable
Shares being registered such number of copies of such registration statement,
each amendment and supplement thereto, the prospectus included in such
registration statement (including each preliminary prospectus) and such other
documents as the Investor or such underwriters may reasonably request in order
to facilitate the disposition of the Registrable Shares being registered or the
sale of such securities by such underwriters;
(iv) register or qualify such Registrable Shares under such other
securities or blue sky laws of such jurisdictions within the United States as
the Investor or, in the case of an underwritten public offering, the managing
underwriter, reasonably requests and do any and all other acts and things which
may be reasonably necessary to enable the Investor to consummate
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the disposition in such jurisdictions of the Registrable Shares owned by
the Investor; provided, however, that the Company will not be required to (A)
qualify generally to do business in any jurisdiction where it would not
otherwise be required to qualify but for this subsection or (B) consent to
general service of process in any such jurisdiction;
(v) cause all such Registrable Shares to be listed or authorized for
quotation on each securities exchange or automated quotation system on which the
Common Stock is then listed or quoted or, if the Common Stock is not then so
listed or quoted, as the Investor may reasonably request;
(vi) provide a transfer agent and registrar for all such Registrable Shares
not later than the effective date of such registration statement;
(vii) enter into such customary agreements (including underwriting
agreements in customary form) and take all such other actions as the Investor or
the underwriters, if any, reasonably request in order to expedite or facilitate
the disposition of such Registrable Shares;
(viii) make available for inspection at a reasonable time by the Investor,
any underwriter participating in any disposition pursuant to such registration
statement and any attorney, accountant or other agent retained by the Investor
or such underwriter, all financial and other records, pertinent corporate
documents and properties of the Company, and cause the Company's officers,
directors, employees and independent accountants to supply all information
reasonably requested by the Investor or any such underwriter, attorney,
accountant or agent in connection with the preparation of such registration
statement;
(ix) notify the Investor, promptly after it shall receive notice thereof,
of the time when such registration statement has become effective or a
supplement to any prospectus forming a part of such registration statement has
been filed;
(x) notify the Investor of any request by the Commission for the amending
or supplementing of such registration statement or prospectus or for additional
information;
(xi) prepare (and afford counsel for the Investor reasonable opportunity to
review and comment on) and file with the Commission, promptly upon the request
of the Investor, any amendments or supplements to such registration statement or
prospectus that, in the opinion of the Investor's counsel, may be required under
the Securities Act in connection with the distribution of Registrable Shares by
the Investor;
(xii) prepare and promptly file with the Commission and promptly notify the
Investor of the filing of such amendment or supplement to such registration
statement or prospectus as may be necessary to correct any statements or
omissions if, at the time when a prospectus relating to such securities is
required to be delivered under the Securities Act, any event shall have occurred
as the result of which any such prospectus or any other prospectus as then in
effect would include an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(xiii) advise the Investor, promptly after it shall receive notice or
obtain knowledge thereof, of the issuance of any stop order by the Commission
suspending the effectiveness of such registration statement or the initiation or
threatening of any proceeding for such purpose and use
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all reasonable efforts promptly to prevent the issuance of any stop order
or to obtain its withdrawal if such stop order is issued;
(xiv) (A) at least 48 hours prior to the filing of any registration
statement or prospectus or any amendment or supplement to such registration
statement or prospectus furnish a copy thereof to the Investor and (B) refrain
from filing any such registration statement, prospectus, amendment or supplement
to which the Investor's counsel shall have objected in writing on the grounds
that such registration statement, prospectus, amendment or supplement may not
comply in all material respects with the requirements of the Securities Act;
(xv) at the request of the Investor furnish on the date or dates provided
for in the underwriting agreement, if any, or upon the effective date of the
registration statement: (A) an opinion of counsel, addressed to the
underwriters, if any, and the Investor, covering such matters as such
underwriters, if any, and the Investor may reasonably request and as are
customarily covered by the issuer's counsel in an underwritten offering; and (B)
a letter or letters from the independent certified public accountants of the
Company addressed to the underwriters, if any, and the Investor covering such
matters as such underwriters, if any, and the Investor may reasonably request
and as are customarily covered in accountant's letters in connection with an
underwritten offering;
(xvi) during such time as the Investor may be engaged in a distribution of
Registrable Shares, comply with Regulation M promulgated under the Exchange Act,
to the extent applicable;
(xvii) participate, to the extent the Investor may reasonably request, with
the Investor in any road show in connection with an underwritten offering; and
(xviii) otherwise comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by such registration
statement in accordance with the intended method of disposition and make
generally available to its security holders, as soon as reasonably practicable,
an earnings statement satisfying the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder.
(b) Upon requesting registration of Registrable Shares pursuant to a
registration under this Agreement, the Investor agrees as follows:
(i) The Investor shall cooperate as reasonably requested by the Company
with the Company in connection with the preparation of the registration
statement, and for so long as the Company is obligated to file and keep
effective the registration statement, shall provide to the Company, in writing,
for use in the registration statement, all such information regarding the
Investor and its plan of distribution of Registrable Shares as may be reasonably
necessary to enable the Company to prepare the registration statement and
prospectus covering the Registrable Shares, to maintain the currency and
effectiveness thereof and otherwise to comply with all applicable requirements
of law in connection therewith; and
(ii) During such time as the Investor may be engaged in a distribution of
the Registrable Shares, the Investor shall (A) comply with Regulation M
promulgated under the Exchange Act, to the extent applicable, (B) distribute the
Registrable Shares under the registration statement solely in the manner
described in the registration statement and (C) cease distribution of such
Registrable Shares pursuant to such registration statement upon receipt of
written notice from the Company that the prospectus covering the Registrable
Shares contains
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any untrue statement of a material fact or omits a material fact required
to be stated therein or necessary to make the statements therein not misleading.
SECTION 5. Registration Expenses. (a) All expenses incident to the
Company's performance of or compliance with this Agreement, including, without
limitation, all registration and filing fees, fees of transfer agents and
registrars, fees and expenses of compliance with securities or blue sky laws,
fees of the National Association of Securities Dealers, Inc., printing expenses,
road show expenses, fees and disbursements of counsel for the Company, fees and
expenses of the Company's independent certified public accountants, and the fees
and expenses of any underwriters (excluding underwriting fees, expenses,
discounts or commissions attributable to the Registrable Shares included in such
registration, which will be paid or borne by the Investor) and other Persons
retained by the Company (all such expenses being herein called "Registration
Expenses"), will be borne by the Company. In addition, the Company will pay its
internal expenses (including, without limitation, all salaries and expenses of
its officers and employees performing legal or accounting duties), the expense
of any annual audit or quarterly review, the expense of any liability insurance
obtained by the Company and the expenses and fees for listing or authorizing for
quotation the securities to be registered on each securities exchange or
automated quotation system on which any shares of Common Stock are then listed
or quoted.
(b) Notwithstanding Section 5(a) above, the Investor agrees that in the
event the Investor withdraws any registration demand, the Investor shall either
reimburse the Company for the Registration Expenses incurred by the Company in
connection with such registration or count such withdrawn demand as a Demand
Registration for purposes of the proviso in Section 1(a).
SECTION 6. Indemnification. (a) In the event of a registration of the
Registrable Shares under the Securities Act pursuant to the terms hereof, the
Company agrees to indemnify, hold harmless and defend, to the fullest extent
permitted by law, the Investor and its managers, partners, officers, employees
and affiliates against all losses, claims, damages, liabilities and expenses
(including, without limitation, reasonable attorneys' fees except as limited by
Section 6(c)) caused by, arising out of, resulting from or related to any untrue
or alleged untrue statement of a material fact contained in any registration
statement under which such Registrable Shares were registered, any prospectus or
preliminary prospectus contained therein or any amendment thereof or supplement
thereto or any omission or alleged omission of a material fact required to be
stated therein or necessary to make the statements therein not misleading,
except insofar as the same are caused by or contained in any information
furnished in writing to the Company or any managing underwriter by the Investor
or a controlling Person thereof and except where such untrue statement was
contained in or such omission was from a registration statement, preliminary
prospectus or prospectus or an amendment thereto or supplement thereof that was
subsequently corrected in an amendment thereto by the Company and such
registration statement, preliminary prospectus, amendment or supplement was not
delivered by or on behalf of the Investor or the Company. In connection with an
underwritten offering, the Company will indemnify such underwriters, their
officers and directors and each Person who controls such underwriters (within
the meaning of the Securities Act or the Exchange Act) to the same extent as
provided above with respect to the indemnification of the Investor (and with the
same exception with respect to information furnished or omitted by such
underwriter or controlling Person thereof) and in connection therewith the
Company shall enter into an underwriting agreement in customary form containing
such provisions for indemnification and contribution as shall be reasonably
requested by the underwriters. The reimbursements required by this Section 6(a)
will be made by periodic payments during the course of the investigation or
defense, as and when bills are received or expenses incurred, upon receipt by
the Company of itemized invoices.
(b) In the event of a registration of the Registrable Shares under the
Securities Act pursuant to the terms hereof, the Investor agrees to indemnify,
hold harmless and defend, to the fullest extent permitted by law, the Company
and its directors, officers, employees and affiliates and each
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underwriter and controlling Person thereof against all losses, claims,
damages, liabilities and expenses (including, without limitation, reasonable
attorneys' fees except as limited by Section 6(c)) caused by, arising out of,
resulting from or related to any untrue or alleged untrue statement of a
material fact contained in any registration statement under which such
Registrable Shares were registered, any prospectus or preliminary prospectus
contained therein, or any amendment thereof or supplement thereto or any
omission or alleged omission of a material fact required to be stated therein or
necessary to make the statements therein not misleading, but only to the extent
that such untrue or alleged untrue statement or omission or alleged omission is
contained in any information so furnished in writing to the Company or any
managing underwriter by the Investor or a controlling Person thereof expressly
for use therein. The reimbursements required by this Section 6(b) will be made
by periodic payments during the course of the investigation or defense, as and
when bills are received or expenses incurred, upon receipt by the Investor of
itemized invoices.
(c) Any Person entitled to indemnification hereunder will (i) give prompt
written notice to the indemnifying party of any claim with respect to which it
seeks indemnification (provided that the failure to give such notice shall not
limit the rights of such Person except to the extent such failure to give notice
shall materially prejudice the rights of the indemnifying party) and (ii) unless
in such indemnified party's reasonable judgment (with written advice of counsel)
a conflict of interest between such indemnified and indemnifying parties may
exist with respect to such claim, permit such indemnifying party to assume the
defense of such claim with counsel reasonably satisfactory to the indemnified
party. If such defense is assumed, the indemnifying party will not enter into
any settlement without the indemnified party's prior written consent unless such
settlement includes an unconditional release of the indemnified party from
liability relating to such claim or the matters that gave rise to such claim.
(d) The parties hereto agree that, if for any reason the indemnification
provisions contemplated by Section 6(a), 6(b) or 6(c) are unavailable to or
insufficient to hold harmless an indemnified party in respect of any losses,
claims, damages, liabilities or expenses (or actions in respect thereof)
referred to therein, then the indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages, liabilities or expenses (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party and the indemnified party as well as any other relevant equitable
considerations. The relative fault of such indemnifying party and indemnified
party shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by such
indemnifying party or indemnified party, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 6(d) were determined by pro
rata allocation (even if any underwriters or all of them were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to in this Section 6(d).
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities or expenses (or actions in respect thereof)
referred to above shall be deemed to include any legal or other fees or expenses
reasonably incurred by such indemnified party in connection with investigating
or, except as provided in Section 6(c), defending any such action or claim.
Notwithstanding the provisions of this Section 6(d), the Investor shall not be
required to contribute an amount greater than the dollar amount of the proceeds
received by the Investor with respect to the sale of any Registrable Shares. No
Person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from an
indemnifying Person who was not guilty of such fraudulent misrepresentation.
SECTION 7. Compliance with Rule 144. The Company shall (i) make and keep
public information available, as those terms are understood and defined in Rule
144 under the Securities Act
("Rule 144"), (ii) file with the Company in a timely manner all reports and
other documents required of the Company under the Securities Act and the
Exchange Act and (iii) at the request of the Investor, forthwith furnish to the
Investor a written statement of compliance with the reporting requirements of
the Commission as set forth in Rule 144 and make available to the Investor such
information as will enable the Investor to make sales pursuant to Rule 144.
SECTION 8. Share Certificate Legends. Promptly following the registration
of any Registrable Shares and in connection with any sale or other transfer of
any of the Registrable Shares pursuant thereto, the Investor shall be entitled
to receive and the Company shall facilitate the timely preparation and delivery
of certificates representing such Registrable Shares free of any restrictive
legends and registered in such names and in such denominations as the Investor
may request, in exchange for the then existing certificates with such
restrictive legends representing such Registrable Shares.
SECTION 9. Notice. Whenever any notice is required to be given hereunder,
such notice shall be deemed given only when such notice is in writing and is
delivered by messenger or courier or, if sent by fax, when received. All
notices, requests and other communications hereunder shall be delivered by
courier, reputable overnight delivery service or messenger or shall be sent by
facsimile to the following addresses:
(i) If to the Investor, at the following address:
Brascan Real Estate Finance Fund I, L.P.
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxxxxxx, Managing Partner
with a copy by facsimile or messenger or courier to:
Sidley Xxxxxx Xxxxx & Xxxx LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx
(ii) If to the Company, at the following address:
CRIIMI MAE Inc.
00000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxxx
with a copy by facsimile or messenger or courier to:
Venable, Baetjer, Xxxxxx & Civiletti, LLP
0000 Xxx Xxxx Xxx., X.X.
Xxxxx 0000
Xxxxxxxxxx D. C. 20005
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxxx
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or to such other respective addresses as may be designated by notice given in
accordance with this Section 9.
SECTION 10. Complete Agreement; No Third-Party Beneficiaries. This
Agreement, the other Ancillary Agreements, the Investment Agreement, the
Confidentiality Agreement and the Company Letter constitute the entire agreement
among the parties pertaining to the subject matter hereof and supersedes all
prior agreements and understandings of the parties in connection therewith. This
Agreement, other than Section 6, is not intended to confer upon any Person other
than the Company and the Investor any rights or remedies hereunder.
SECTION 11. GOVERNING LAW. THIS AGREEMENT 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. THE INVESTOR AND THE COMPANY
HEREBY CONSENT TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND
THE FEDERAL COURTS LOCATED IN THE BOROUGH OF MANHATTAN WITH RESPECT TO ANY
ACTION, SUIT OR PROCEEDING BROUGHT TO ENFORCE ANY PROVISION OF THIS AGREEMENT OR
TO DETERMINE THE RIGHTS OF ANY PARTY HERETO.
SECTION 12. No Assignment. This agreement may be assigned by the Investor
without the consent of the Company to Brascan Real Estate Financial Partners LLC
or a controlled affiliate thereof. Subject to the foregoing, neither this
Agreement nor any rights or obligations under it are assignable by either party
without the written consent of the other party.
SECTION 13. Headings. The descriptive headings of the sections and
subsections of this Agreement are for convenience only and do not constitute a
part of this Agreement.
SECTION 14. Counterparts. This Agreement 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 15. Interpretation. The word "including", when used herein, shall
be deemed to mean "including, without limiting the generality of the foregoing".
When a reference is made in this Agreement to a Section, such reference shall be
to a section of this Agreement, unless otherwise indicated.
SECTION 16. Remedies; Waiver. All rights and remedies existing under this
Agreement 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 17. Severability. Any invalidity, illegality or unenforceability of
any provision of this Agreement 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.
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SECTION 18. Amendment; Waiver. This Agreement may be amended only by
agreement in writing of both parties. No waiver of any provision nor consent to
any exception to the terms of this Agreement shall be effective unless in
writing and signed by the party to be bound and then only to the specific
purpose, extent and instance so provided.
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IN WITNESS WHEREOF, the Investor and the Company have caused this Agreement
to be signed by their respective offers thereunto duly authorized all as of the
date first written above.
BRASCAN REAL ESTATE FINANCE FUND I, L.P.
By: BREF GP LLC,
its General Partner
By: BRASCAN REAL ESTATE FINANCIAL PARTNERS LLC,
its Managing Member
/s/Xxxxx Xxxxxxxx
------------------------------------------------
Name: Xxxxx Xxxxxxxx
Title: President
CRIIMI MAE INC.
/s/Xxxxx X. Xxxxxxxxx
------------------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Executive Vice President and
Chief Operating Officer
