EXECUTION VERSION
Exhibit 10.6
AMENDMENT NO. 1
TO GUARANTEE
Amendment No. 1, dated as of June 26, 2003 (this "Amendment"), between
BEAR, XXXXXXX INTERNATIONAL LIMITED, (the "Buyer") and CRIIMI MAE INC., (the
"Guarantor").
RECITALS
The Buyer, CRIIMI Newco LLC (an " Existing Seller", and sometimes referred
to as a "Seller") and CBO REIT II, Inc. (an "Existing Seller", and sometimes
referred to as a "Seller") are parties to that certain Repurchase Agreement,
dated as of January 14, 2003, as amended by Amendment No. 1, dated as of the
date hereof (the "Existing Repurchase Agreement"). The Buyer and CRIIMI MAE
Asset Acquisition Corp. (the "New Seller", and sometimes referred to as a
"Seller") are parties to that certain Repurchase Agreement and Annex I thereto,
to be entered into on or about June 26, 2003 (the "CMAAC Repurchase Agreement",
together with the Existing Repurchase Agreement, the "Repurchase Agreements").
The Guarantor is party to that certain Guarantee, dated as of January 14, 2003
(the "Existing Guarantee", as amended by this Amendment, the "Guarantee"), in
favor of Buyer. Capitalized terms used but not otherwise defined herein shall
have the meanings given to them in the Repurchase Agreements or the Existing
Guarantee, as applicable.
The Buyer and the Guarantor have agreed, subject to the terms and
conditions of this Amendment, that the Existing Guarantee be amended to reflect
certain agreed upon revisions to the terms of the Existing Guarantee.
Accordingly, the Buyer and Guarantor hereby agree, in consideration of the
mutual premises and mutual obligations set forth herein, that the Existing
Guarantee is hereby amended as follows:
Section 1. Definitions.
(a) All references to "Buyer" shall include Buyer under the Existing
Repurchase Agreement and the CMAAC Repurchase Agreement and any Acceptable Hedge
Counterparty (as defined herein); provided, that all required notices, waivers
and payments shall be given to, obtained from or made to Bear, Xxxxxxx
International Limited as Buyer or as agent for an Affiliate of Buyer.
(b) All references to "Change of Control" shall include "CMAAC Change of
Control" as defined herein.
(c) All references to "Obligations" shall include "Guaranteed Obligations"
as defined herein.
(d) All references to "Repurchase Agreement" shall include the Existing
Repurchase Agreement, the CMAAC Repurchase Agreement and any Acceptable Hedge
Agreement; provided, that for purposes of Section 10(l) of the
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Existing Guaranty, the reference to "Repurchase Agreement" shall mean
only the Existing Repurchase Agreement.
(e) All references to "Seller" or "Sellers" shall include CRIIMI MAE Asset
Acquisition Corp.
(f) The Existing Guarantee is hereby amended by adding the following
defined terms in their proper alphabetical order:
"Acceptable Hedge Agreement" shall mean any hedge or swap contract, whether
entered into orally or in writing, by a Seller or Sellers with an Acceptable
Hedge Counterparty approved by the Buyer in its sole discretion and guaranteed
by the Bear Xxxxxxx Companies Inc.
"Acceptable Hedge Counterparty" shall mean Buyer or an Affiliate of Buyer.
"CMAAC" shall mean CRIIMI MAE Asset Acquisition Corp., a Maryland
corporation.
"CMAAC Change of Control" shall mean, with respect to CMAAC:
(a) any transaction or event as a result of which the Guarantor ceases to
own, beneficially or of record, 100% of the stock of CMAAC;
(b) the sale, transfer, or other disposition of all or substantially all of
CMAAC's assets (excluding any such action taken in connection with any
securitization transaction); or
(c) the consummation of a merger or consolidation of CMAAC with or into
another entity or any other corporate reorganization, if more than 50% of the
combined voting power of the continuing or surviving entity's stock outstanding
immediately after such merger, consolidation or such other reorganization is
owned by persons who were not stockholders of CMAAC immediately prior to such
merger, consolidation or other reorganization.
"CMAAC Repurchase Agreement" shall mean that certain Repurchase Agreement
and Annex I thereto, to be entered into on or about June 26, 2003, between
CRIIMI MAE Asset Acquisition Corp. and Bear, Xxxxxxx International Limited, as
the same may be amended or modified from time to time.
"Existing Repurchase Agreement" shall mean that certain Repurchase
Agreement, dated as of January 14, 2003, among Bear, Xxxxxxx International
Limited, CRIIMI Newco, LLC and CBO REIT II, Inc., as the same may be further
amended or supplemented from time to time.
"Guaranteed Obligations" shall mean the Obligations of the Existing Sellers
under the Existing Repurchase Agreement and all obligations of the New Seller
under the CMAAC Repurchase Agreement and any obligations of any Seller under any
Acceptable Hedge Agreement to Buyer.
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Section 2. Conditions Precedent. This Amendment shall become effective on
June 26, 2003 (the "Amendment Effective Date"), subject to the satisfaction of
the following conditions precedent:
2.1 Delivered Documents. On the Amendment Effective Date, the Buyer shall
have received the following documents, each of which shall be satisfactory to
the Buyer in form and substance:
(a) This Amendment, executed and delivered by a duly authorized officer of
the Buyer and the Guarantor.
(b) Amendment No. 1 to the Existing Repurchase Agreement, executed and
delivered by a duly authorized officer of the Buyer and each Existing Seller.
(c) An acknowledgement and waiver by Brascan Lender under the Intercreditor
Agreement and the Subordinated Loan Documents.
(d) An opinion or opinions of outside counsel to the Guarantor relating to
corporate matters and enforceability of this Amendment against the Guarantor
acceptable to the Buyer in its sole discretion.
(e) such other documents as the Buyer or counsel to the Buyer may
reasonably request.
Section 3. Representations and Warranties. The Guarantor hereby represents
and warrants to the Buyer that it is in compliance with all the terms and
provisions set forth in the Existing Guarantee on its part to be observed or
performed, and that no Event of Default under the Existing Guarantee has
occurred or is continuing, and hereby confirms and reaffirms the representations
and warranties contained in Section 9 of the Existing Guarantee.
Section 4. Limited Effect. Except as expressly amended and modified by this
Amendment, the Existing Guarantee shall continue to be, and shall remain, in
full force and effect in accordance with its terms.
Section 5. Counterparts. This Amendment may be executed by each of the
parties hereto on any number of separate counterparts, each of which shall be an
original and all of which taken together shall constitute one and the same
instrument.
Section 6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT
REFERENCE TO THE CHOICE OF LAW PROVISIONS THEREOF.
Section 7. Reaffirmation of Guarantee. The Guarantor hereby ratifies and
affirms all of the terms, covenants, conditions and obligations of the Guarantee
and acknowledges and agrees that such Guarantee shall apply to all of the
Obligations under the Repurchase Agreements, any other Repurchase Documents and
any Acceptable Hedge
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Agreement entered into with Buyer or an Acceptable Hedge Counterparty, as they
may be amended, modified and in effect, from time to time.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have caused their names to be signed hereto
by their respective officers thereunto duly authorized as of the day and year
first above written.
Buyer: BEAR, XXXXXXX INTERNATIONAL
LIMITED,
as Buyer
/s/Xxxx Xxxxxxxx
-----------------------------------
Name: Xxxx Xxxxxxxx
Title: Authorized Signatory
Guarantor : CRIIMI MAE INC.,
as Guarantor
/s/Xxxxx X. Xxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxx
Title: Executive Vice President
and Chief Operating Officer
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