SECOND AMENDMENT TO RIGHTS AGREEMENT
This Second Amendment to Rights Agreement (the "Second Amendment"), made
and entered into as of the 14th day of November 2002, is by and between CRIIMI
MAE INC., a Maryland corporation (the "Corporation"), and REGISTRAR AND TRANSFER
COMPANY, a New Jersey corporation, as Rights Agent (the "Rights Agent").
RECITALS
A. The Corporation and the Rights Agent are party to a Rights Agreement
dated as of January 23, 2002, as amended by Amended and Restated First Amendment
to Rights Agreement dated as of June 10, 2002 (as so amended, the "Rights
Agreement").
B. Pursuant to Section 27 of the Rights Agreement, the Corporation may
amend the Rights Agreement without the approval of any holders of Rights
Certificates (as defined in the Rights Agreement) as the Corporation may deem
necessary or desirable until such time as the Rights (as defined in the Rights
Agreement) are no longer redeemable.
C. The Rights are currently redeemable.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto, intending to be
legally bound, agree as follows:
1. Amendatory Provision. The definition of "Acquiring Person" contained in
Section 1(a) of the Rights Agreement is hereby amended by inserting the
following clause (vi) in full at the end of the first sentence of the definition
of "Acquiring Person":
, and (vi) Brascan Real Estate Financial Investments LLC, a Delaware
limited liability company ("Brascan"), unless and until such time as
Brascan becomes the Beneficial Owner of Common Shares other than (a)
Common Shares received pursuant to the Investment Agreement dated as
of November 14, 2002 between the Corporation and Brascan, and (b)
Common Shares received pursuant to a stock dividend on, or subdivision
of, the Common Shares received pursuant to such Investment Agreement.
2. Existing Agreement. Except as expressly amended hereby, all of the
terms, covenants and conditions of the Rights Agreement (i) are ratified and
confirmed; (ii) shall remain unamended and not waived; and (iii) shall continue
in full force and effect.
3. Governing Law. This Second Amendment shall be governed by the internal
laws of the State of Maryland without giving effect to the principles of
conflict of laws thereof.
4. Counterparts. This Second Amendment may be executed in counterparts,
each of which shall be deemed an original, and all of which taken together,
shall constitute one and the same instrument.
5. Enforceability. If any provision of this Second Amendment shall be held
to be illegal, invalid or unenforceable under any applicable law, then such
contravention or invalidity shall not invalidate the entire Second Amendment or
the Rights Agreement. Such provision shall be deemed to be modified to the
extent necessary to render it legal, valid and enforceable, and if no such
modification shall render it legal, valid and enforceable, then this Second
Amendment and the Rights Agreement shall be construed as if not containing the
provision held to be invalid, and the rights and obligations of the parties
shall be construed and enforced accordingly.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties hereto have caused this Second Amendment to
be duly executed and attested, all as of the day and year first above written.
CRIIMI MAE INC.
Attest: /s/Xxxxx X. Xxxxxxx By: /s/Xxxxx X. Xxxxxxxxx
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Name: Xxxxx X. Xxxxxxx Name: Xxxxx X. Xxxxxxxxx
Title: Assistant Secretary Title: Executive Vice President
REGISTRAR AND TRANSFER
COMPANY, as Rights Agent
Attest: /s/Xxxxxx Xxxxxxxx By: /s/Xxxxxxx X. Tatler
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Name: Xxxxxx Xxxxxxxx Name: Xxxxxxx X. Tatler
Title: Vice President Title: Vice President
