EXHIBIT 10.2
EXECUTION COPY
AMENDMENT NO. 2 TO INVESTMENT AGREEMENT
AMENDMENT NO. 2 (this "Amendment") dated as of January 13, 2003 to the
Investment Agreement (as defined below) between CRIIMI MAE INC., a Maryland
corporation (the "Company"), and BRASCAN REAL ESTATE FINANCIAL INVESTMENTS LLC,
a Delaware limited liability company (the "Investor").
WITNESSETH:
WHEREAS the Company and the Investor are parties to an Investment Agreement
dated as of November 14, 2002 (as amended by Amendment No. 1 dated as of
December 2, 2002, the "Investment Agreement"; capitalized terms used but not
defined herein shall have the meanings ascribed thereto in the Investment
Agreement); and
WHEREAS the Company and the Investor desire to amend the Investment
Agreement.
NOW, THEREFORE, in consideration of the premises, representations,
warranties, covenants and agreements set forth herein, the parties hereto hereby
agree as follows:
Section 1. Amendment. The Investment Agreement is hereby amended as
follows:
(a) The first sentence of Section 1.1 of the Investment Agreement is hereby
amended by deleting the reference therein to "10.0%" and replacing such
reference with "8.0%". Clause (ii) of the second sentence of Section 1.1 is
hereby amended to read in its entirety as follows: "(ii) $11.50 (the "Stock
Purchase Price")".
(b) Section 1.5(f) of the Investment Agreement is hereby amended by
deleting the reference therein to "the NYSE" and replacing such reference with
"the New York Stock Exchange, Inc. (the "NYSE")".
(c) Section 1.5 of the Investment Agreement is hereby amended by deleting
the last word of paragraph (l) thereof, deleting the period at the end of
paragraph (m) thereof and replacing it with "; and" and adding the following
paragraph (n) thereto:
"(n) freely transferable warrants, initially registered in the
name of the Investor (or its designee), granting the holder
thereof the right to purchase, at any time prior to the
seventh anniversary of the Closing, up to 336,835 shares of
Common Stock from the Company at a per share purchase price of
$11.50 with customary anti-dilution provisions (with respect
to stock splits, reverse stock splits, combinations, mergers
and similar events, but not with respect to equity issuances
by the Company) and other provisions to be negotiated by the
parties as promptly as practicable after the Closing (the
"Warrants"); provided, however, that in the event of an Escrow
Closing (as defined in Section 1.7(a)), such Warrants shall be
delivered to the Investor concurrently with the delivery of
the Purchased Stock to the Investor at the time provided in
the Escrow Agreement (as defined in Section 1.7(a))."
(d) Section 1.7(a) of the Investment Agreement is hereby amended by
deleting the word "shall" from the first sentence thereof and replacing it with
"may".
(e) Section 5.1 of the Investment Agreement is hereby amended by adding the
following sentence to the last paragraph thereof:
"For all purposes of this Section 5.1, the beneficial owner of
any outstanding Warrants shall be deemed to beneficially own
all shares of Common Stock that may be purchased upon the
exercise of such Warrants."
(f) Section 5.2 of the Investment Agreement is hereby amended by deleting
the reference therein to "$375,000" and replacing it with "$434,000".
Section 2. Acknowledgment. Notwithstanding anything to the contary
contained in Schedule 2.2(d) to the Company Letter, the parties acknowledge that
on the date of the Escrow Closing, after giving effect to the issuance of the
Purchased Stock and exercise of the Warrants, the number of issued and
outstanding shares of Common Stock of the Company will be 15,494,520.
Section 3. Reference to and Effect in the Investment Agreement.
(a) Upon the date hereof, each reference in the Investment Agreement to
"this Agreement", "hereunder", "hereof" or words of like import referring to the
Investment Agreement shall mean and be a reference to the Investment Agreement
as amended hereby.
(b) Except as specifically amended above, the Investment Agreement is and
shall continue to be in full force and effect and is hereby in all respects
ratified and confirmed.
(c) The execution, delivery and effectiveness of this Amendment shall not,
except as expressly provided herein, operate as a waiver of any right, power or
remedy of either party to the Investment Agreement.
Section 4. Representations and Warranties of the Company. The Company
warrants and represents as follows:
(a) Organization, Standing and Power. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Maryland. The Company has the necessary corporate power and authority to
execute, deliver and perform this Amendment.
(b) Authority. The execution, delivery and performance of this Amendment by
the Company has been duly and validly authorized by the board of directors of
the Company and by all other necessary corporate action on the part of the
Company. This Amendment constitutes the legal, valid and binding obligations of
the Company, enforceable against the
Company in accordance with its terms except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium and
other similar laws and equitable principles relating to or limiting creditors'
rights generally.
Section 5. Representations and Warranties of the Investor. The Investor
warrants and represents as follows:
(a) Organization, Standing and Power. The Investor is a limited liability
company duly organized, validly existing and in good standing under the laws of
the State of Delaware. The Investor has the necessary power and authority to
execute, deliver and perform this Amendment.
(b) Authority. The execution, delivery and performance of this Amendment by
the Investor has been duly and validly authorized by all necessary action on the
part of the Investor. This Amendment constitutes the legal, valid and binding
obligations of the Investor, enforceable against the Investor in accordance with
its terms except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium and other similar laws and equitable
principles relating to or limiting creditors' rights generally.
Section 6. Governing Law. THIS AMENDMENT 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.
Section 7. Headings. The descriptive headings of the sections of this
Amendment are for convenience only and do not constitute a part of this
Amendment.
Section 8. Counterparts. This Amendment 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 9. Remedies; Waiver. All rights and remedies existing under this
Amendment 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 10. Severability. Any invalidity, illegality or unenforceability of
any provision of this Amendment 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.
IN WITNESS WHEREOF, the Investor and the Company have caused this Amendment
to be signed by their respective officers thereunto duly authorized all as of
the date first written above.
BRASCAN REAL ESTATE FINANCIAL
INVESTMENTS LLC
By: BRASCAN REAL ESTATE
FINANCIAL PARTNERS LLC,
its Managing Member
/s/Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Secretary and Treasurer
CRIIMI MAE INC.
/s/Xxxxx X. Xxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxx
Title: Executive Vice President
