EXHIBIT 4(nn)
Amendment Agreement Number Three among CRIIMI MAE Inc., CIBC, Inc., National
Australia Bank Limited, New York Branch, Signet Bank/Virginia, The Fuji
Bank, LTD., New York Branch, Bank Hapoalim B.M. and Canadian Imperial Bank
of Commerce, New York Agency
AMENDMENT AGREEMENT Xx. 0
XXXXXXXXX XXXXXXXXX Xx. 0 dated as of June 5, 1995 ("Amendment
Agreement") among CRIIMI MAE Inc. (the "Company"), CIBC INC. ("CIBC"), NATIONAL
AUSTRALIA BANK LIMITED, NEW YORK BRANCH ("NAB"), SIGNET BANK/VIRGINIA
("Signet"), THE FUJI BANK, LTD., NEW YORK BRANCH ("Fuji"), BANK HAPOALIM
B.M.("Hapoalim"), (CIBC, NAB, Signet, Fuji and Hapoalim are referred to
collectively as the "Lenders") and CANADIAN IMPERIAL BANK OF COMMERCE, NEW YORK
AGENCY, as administrative agent for the Lenders (the "Administrative Agent").
RECITALS
The Lenders, the Company and the Administrative Agent are parties to a
Revolving Credit Agreement dated as of February 28, 1994, as amended by
Amendment Agreement No. 1 dated as of June 1, 1994 and Amendment Agreement No. 2
dated as of December 9, 1994, (the "Credit Agreement") under which the Lenders
have made Loans (as defined therein) to the Company;
The Revolving Credit Loans and the obligations of CRIIMI MAE are
secured under a Security Agreement dated as of February 28, 1994 among the
Company, the Administrative Agent and Chemical Bank as Collateral Agent (the
"Security Agreement"); and
The Company has requested, and the Lenders and the Administrative
Agent are willing to agree to, an amendment to the Credit Agreement to modify
certain covenants contained therein, as set forth below.
Accordingly, the parties hereby agree as follows:
Section 1. Definitions. Capitalized terms used in this Amendment
Agreement and not otherwise defined herein shall have the respective meanings
assigned to them in the Credit Agreement.
Section 2. Amendments. Subject to the conditions of effectiveness
set forth in Section 4 of this Amendment Agreement, commencing as of June 5,
1995 (the "Effective Date") the Credit Agreement is amended as follows:
(a) References in the Credit Agreement (including references in
the Credit Agreement as amended hereby) to "this Agreement" (and indirect
references such as "hereunder", "hereby", "herein", and "hereof") shall be
deemed references to the Credit Agreement as amended hereby.
(b) Section 7.12 of the Credit Agreement is amended and replaced
in its entirety as follows:
"7.12 Indebtedness. There exists no credit agreement, loan
agreement, indenture, purchase agreement, guarantee or other
arrangement providing for or otherwise relating to any Indebtedness or
any extension of credit (or commitment for any extension of credit)
to, or guarantee by, the Company or any of its Subsidiaries the
aggregate principal or face amount of which equals or exceeds (or may
equal or exceed) $1,000,000, other than Indebtedness permitted by
Section 8.08 and certain intercompany debt of a Subsidiary to the
Company that will be eliminated upon consolidation."
(c) Section 8.07 of the Credit Agreement is amended (by adding a
new clause (viii) after clause (vii)) and replaced in its entirety as follows:
"8.07 Limitation on Liens. The Company will not, nor will it
permit any of its Subsidiaries to, create, incur, assume or suffer to
exist any Lien upon or with respect to any of its assets (including,
without limitation, the Assigned Collateral), whether now owned or
hereafter acquired, or assign or otherwise convey any right to receive
income (including, without limitation, from the Assigned Collateral),
except (i) as provided in the Security Agreement; (ii) Liens securing
any Interest Rate Hedge Agreements permitted hereunder; provided, that
the aggregate market value of the collateral subject to such Liens
does not exceed $12,000,000 at any time; (iii) Liens imposed by any
governmental authority for taxes, assessments or charges not yet due
or which are being contested in good faith and by appropriate
proceedings if adequate reserves with respect thereto are maintained
on the books of the Company or any of its Subsidiaries, as the case
may be, in accordance with GAAP; (iv) Liens securing the Nomura
Facilities, or such other facilities which may replace all or a part
of the Nomura Facilities with substantially similar collateral;
(v) Liens pursuant to the Amended and Restated Collateral Pledge
Agreement dated December 29, 1992 securing the Signet Credit
Agreement, or such other agreement which may replace such pledge
agreement with substantially similar collateral; (vi) Liens securing
the Indebtedness permitted by clause (vii) of Section 8.08; provided,
that the collateral securing such Indebtedness will consist solely of
the asset being financed; (vii) Liens securing the Indebtedness
permitted by clause (viii) of Section 8.08; provided, that the
collateral securing such Indebtedness will consist solely of shares of
stock in CRI Liquidating REIT, Inc. and (viii) Liens securing the
Indebtedness permitted by clause (x) of Section 8.08; provided, that
the collateral securing such Indebtedness will consist solely of (i)
shares of stock in CRIIMI, Inc., (ii) distributions arising from
CRIIMI, Inc.'s general partnership interest in American Insured
Mortgage Investors ("AIM84"), American Insured Investors - Series 85
("AIM85"), - Series 86 ("AIM86") and - Series 88 ("AIM88"), (iii) the
Company's or its Subsidiaries' general and limited partnership
interests in CRI/AIM Investment L.P. and (iv) the subadvisory fees
generated by a management agreement between CRI/AIM Management, Inc.
(or its proposed successor, CRIIMI MAE Services Limited Partnership)
and AIM Acquisition Partners, L.P."
(d) Section 8.08 of the Credit Agreement is amended (by
relettering the existing clause (x) thereof as clause "(xii)", by deleting and
replacing clause (vii) and by adding new clauses (x) and (xi)) and replaced in
its entirety as follows:
"8.08 Limitation on Indebtedness. The Company will not, nor
will it permit any of its Subsidiaries to, create, incur, assume or
suffer to exist any Indebtedness, whether current or funded, or any
other liability, except (i) Indebtedness on account of the Loans;
(ii) other Indebtedness to the Administrative Agent or the Lenders
arising hereunder; (iii) Indebtedness under any Interest Rate Hedge
Agreement entered into pursuant to Section 8.13 or under any other
Interest Rate Hedge Agreement with one or more other parties which is
a rate cap or similar agreement; (iv) existing Indebtedness on the
date hereof described in Section 7.12; (v) Indebtedness pursuant to
the Signet Credit Agreement, as amended, up to a maximum aggregate
amount of Indebtedness under such agreement of $85,000,000;
(vi) Indebtedness pursuant to the Nomura Facilities up to a maximum
aggregate amount of Indebtedness under such facility of $500,000,000;
(vii) Indebtedness for the financing of Other Mortgage Investments (as
defined in Section 8.17(b)) up to a maximum aggregate amount of
Indebtedness for such purpose of $100,000,000; provided, that such
Indebtedness shall not exceed 80% of the aggregate purchase price of
each such Other Mortgage Investment (or one or more tranches of a
specific series of mortgage pass-through certificates or similar
securities constituting Other Mortgage Investments);
(viii) Indebtedness not in excess of $10,000,000 for a working capital
line; (ix) Indebtedness under agreements which replace all or part of
the Indebtedness permitted by clause (v) or (vi) above in a maximum
aggregate amount not to exceed the respective amounts permitted by
such clauses; (x) Indebtedness assumed in connection with the merger
of certain affiliates of C.R.I., Inc. with the Company or its
affiliates not to exceed $9,200,000; (xi) Indebtedness under the
deferred compensation arrangement with Xxxxxxx X. Xxxxxxx and H.
Xxxxxxx Xxxxxxxxxx in an aggregate amount not exceeding $5,100,000;
provided, that such Indebtedness is permitted only so long as (x) the
Company holds a note receivable in the same amount evidencing the
obligation of certain affiliates of C.R.I., Inc. and (y) C.R.I., Inc.
continues to make principal payments on such receivable to the
Company; and (xii) any other Indebtedness expressly approved by the
Required Lenders."
(e) Section 8.10 of the Credit Agreement is amended and replaced
in its entirety as follows:
"8.10 Minimum Consolidated Shareholders' Equity. The Company will
not permit at any time Consolidated Shareholders' Equity to be less than
$200,000,000."
(f) Section 8.17 of the Credit Agreement is amended (by revising
proviso (x) and adding a sub-section (b)) and replaced in its entirety as
follows:
"8.17 Lines of Business. (a) The Company will continue, and
cause each of its Subsidiaries to continue, to engage in a business of
the same general type as conducted by the Company or its Subsidiaries
on the date of this Agreement (i.e., directly or indirectly investing
in federally insured residential and multi-family mortgage
investments); provided, that the Company may (i) establish a
Subsidiary, or fund or guaranty affiliates or special purpose
corporations, to engage in other related lines of business (including
activities directly related to the conversion of the Company to a
self-administered REIT) if such engagement would not have a Material
Adverse Effect or adversely affect the REIT status of the Company,
(ii) invest in Other Mortgage Investments and (iii) invest in Unrated
Mortgage Investments; provided, however, that (x) at no time shall the
aggregate amount of investments of the Company and its Subsidiaries
permitted by clause (i), (ii) and (iii) above exceed 15 percent of the
total consolidated assets of the Company through December 31, 1995 and
20 percent of such assets thereafter, in each case, as at the end of
the most recent fiscal quarter as set forth in the consolidated
balance sheets of the Company delivered pursuant to Section 8.01 and
(y) if the Company converts to a self-administered REIT, it shall
deliver to the Administrative Agent copies of documents effectuating
such conversion, a certificate of a senior officer of the Company
certifying that no Default or Event of Default under the Credit
Agreement has occurred and is continuing and an opinion of outside
counsel to the Company addressed to the Administrative Agent and the
Lenders as to the Company's status as a qualified REIT and such other
matters as the Administrative Agent shall reasonably request.
(b) As used in Section 8.08 and this Section 8.17, the following
terms shall have the following meanings:
"Other Mortgage Investments" shall mean mortgage investments
other than (i) Assigned Collateral, (ii) federally insured residential
and multi-family mortgage investments and (iii) Unrated Mortgage
Investments.
"Unrated Mortgage Investments" shall mean mortgage investments
which are not rated or are rated below B- by Standard & Poor's Ratings
Group or below B3 by Xxxxx'x Investors Service, Inc."
Section 3. Fees and Expenses.
(a) The Company shall pay to the Administrative Agent for its
own account an administrative fee, as agreed by the Company in the Term Sheet of
Proposed Amendments Letter dated May 17, 1995 from the Administrative Agent to
the Company (which Letter is superseded by this Amendment Agreement, except with
respect to the fee).
(b) The Company will pay on demand all reasonable out-of-pocket
costs and expenses of the Administrative Agent, including reasonable fees and
disbursements of counsel for the Administrative Agent, in connection with this
Amendment Agreement.
Section 4. Conditions Precedent. The amendments to the Credit
Agreement set forth in Section 2 of this Amendment Agreement shall become
effective as of the Effective Date if, and only if, the following conditions
shall have been fulfilled to the satisfaction of the Administrative Agent:
(a) the representations and warranties of the Company set forth
in Section 5 hereof, in Section 7 of the Credit Agreement and in Section 3.1 of
the Security Agreement shall be true and correct with the same force and effect
as if made on and as of such date;
(b) no Default or Event of Default under the Credit Agreement
shall have occurred and be continuing;
(c) there shall not have occurred any change, or development or
event involving a prospective change, which in the opinion of the Required
Lenders could have a Material Adverse Effect;
(d) the Company shall have delivered to the Administrative Agent
certificate(s) of a senior officer of the Company dated as of the Effective Date
and, if different, dated as of the date on which all parties shall have executed
this Amendment Agreement certifying as to (i) the items in paragraphs (a), (b)
and (c) of this Section 4 of this Amendment Agreement, (ii) the resolutions of
the Board of Directors of the Company relating to the execution, delivery and
performance of this Amendment Agreement and the Credit Agreement as amended
hereby, and (iii) the name and authorized signature of each officer authorized
to sign this Amendment Agreement;
(e) the Company, the Administrative Agent and all the Lenders
shall have executed this Amendment Agreement;
(f) the Company shall have paid to the Administrative Agent the
fees and expenses set forth in Section 3 of this Amendment Agreement; and
(g) the Company shall have complied with any other reasonable
request of the Administrative Agent or any Lender.
Section 5. Representations and Warranties. The Company represents
and warrants to the Administrative Agent and the Lenders that:
(a) the execution, delivery and performance of this Amendment
Agreement has been duly authorized by all necessary corporate action on its part
and do not and will not (i) violate any provision of law, rule, regulation,
order, writ, judgment, injunction, decree, determination or award as currently
in effect to which it is subject or of its certificate of incorporation or by-
laws, (ii) result in a breach of or constitute a default under any indenture or
loan or credit agreement or any other agreement, lease or instrument to which it
is a party or by which it or any of its properties is bound, (iii) result in, or
require, the creation or imposition of any mortgage, deed of trust, assignment,
pledge, Lien, security interest or other charge or encumbrance of any nature
upon or with respect to any of its properties, (iv) require any authorization,
consent, approval, license, exemption of or filing with any commission, board,
bureau, agency or instrumentality or (v) require the consent of any other
Person;
(b) this Amendment Agreement constitutes its legal, valid and
binding obligation, enforceable against it in accordance with its terms, subject
to bankruptcy, insolvency, reorganization, moratorium or other laws affecting
the rights of creditors generally and to equitable principles; and
(c) no Default or Event of Default under the Credit Agreement
exists or will result from the execution of this Amendment Agreement.
Section 6. Miscellaneous.
(a) This Amendment Agreement shall be governed by and construed
in accordance with the laws of the State of New York.
(b) Except as expressly set forth herein, the Credit Agreement,
the Notes, the Security Agreement and all other related documents shall remain
unmodified and in full force and effect. The execution, delivery and
effectiveness of this Amendment Agreement shall not, except as expressly
provided herein, operate as a waiver of any right, power or remedy of the
Company, any Lender or the Administrative Agent under any of the Credit
Agreement, the Notes, the Security Agreement or any related document, nor,
except as expressly provided herein, constitute a waiver of any provision of any
such document.
(c) This Amendment Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Amendment Agreement as of the
date first above written.
CRIIMI MAE INC.
By: /s/ Xxx X. Xxxxx
------------------------
Title: Executive Vice President
CANADIAN IMPERIAL BANK OF COMMERCE, NEW YORK
AGENCY,
as Administrative Agent
By: Xxxxxxxx Xxxx
----------------------
Title: Authorized Signatory
CIBC INC.,
as Lender
By: /s/ Lu Xxx Xxxxxx
---------------------
Title: Vice President
NATIONAL AUSTRALIA BANK LIMITED, NEW YORK BRANCH,
as Lender
By: /s/ X.X. Xxxxxxxx
------------------
Title: Vice President
SIGNET BANK/VIRGINIA,
as Lender
By: /s/ Xxxxx X. Xxxxxx
-------------------
Title: Vice President
THE FUJI BANK, LTD., NEW YORK BRANCH, as Lender
By: /s/ Xxxx Xxxxxx
------------------------
Title: Vice President & Manager
BANK HAPOALIM B.M.,
as Lender
By: /s/ Xxxxxxxx Xxxxx By: /s/ Xxxxx X. Xxxxx
------------------------ ------------------
Title: Vice President & Manager Title: Vice President
