CRIIMI MAE INC.
AND
STATE STREET BANK AND TRUST COMPANY
as Trustee
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FIRST SUPPLEMENTAL INDENTURE
Dated as of November 21, 1997
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Supplement to Indenture dated as of November 21, 1997
FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE, dated as of November 21, 1997, between
CRIIMI MAE INC., a Maryland corporation (hereinafter called the "Company"),
having its principal office at 00000 Xxxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxx
00000, and STATE STREET BANK AND TRUST COMPANY, a Massachusetts trust company
(hereafter called the "Trustee"), having a Corporate Trust Office at Two
International Place, Financial Services, Corporate Trust Department, Xxxxxx,
Xxxxxxxxxxxxx 00000, as Trustee under the Indenture (as hereinafter defined).
RECITALS
WHEREAS, the Company and the Trustee have as of November 21, 1997 entered
into an Indenture, (hereinafter called the "Indenture") providing for the
issuance by the Company from time to time of its senior debt securities
evidencing its unsecured and unsubordinated indebtedness (the "Securities")
(all capitalized terms used and not otherwise defined herein shall have the
meanings set forth in the Indenture);
WHEREAS, no Securities have been issued under the Indenture;
WHEREAS, the Company desires to issue one series of senior debt
securities under the Indenture, the "Notes" (as defined below), and has duly
authorized the creation of the Notes and the execution and delivery of this
First Supplemental Indenture to modify the Indenture and provide certain
additional provisions as hereinafter described;
WHEREAS, in accordance with Section 901(g) of the Indenture, the Company
and the Trustee are authorized and permitted to amend and supplement the
Indenture as set forth herein, without the consent of any Holder, and all
requirements set forth in Article Nine to make this First Supplemental
Indenture effective have been satisfied; and
WHEREAS, the Company and the Trustee deem it advisable to enter into this
First Supplemental Indenture for the purposes of establishing the terms of the
Notes and providing for the rights, obligations and duties of the Trustee with
respect to the Notes;
NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the mutual premises and agreements herein
contained, the Company and the Trustee covenant and agree, for the equal and
proportionate benefit of all Holders of the Notes, as follows:
ARTICLE ONE
CREATION OF THE NOTES
SECTION 1.01. DESIGNATION OF SERIES. Pursuant to the terms hereof and
Sections 201 and 301 of the Indenture, the Company hereby creates a series of
its Notes known as the "9 1/8 percent Notes due 2002," which Notes shall be
deemed "Securities" for all purposes under the Indenture.
SECTION 1.02. FORM OF NOTES. The definitive form of the Notes shall be
substantially in the form set forth in Exhibit A attached hereto, which is
incorporated herein and made part hereof. The Notes shall bear interest, be
payable and have such other terms as are stated in the form of definitive Note
or in the Indenture, as supplemented by this First Supplemental Indenture.
SECTION 1.03. LIMIT ON AMOUNT OF SERIES. The Notes shall not exceed
$100,000,000 in aggregate principal amount, and may, upon the execution and
delivery of this First Supplemental Indenture or from time to time thereafter,
be executed by the Company and delivered to the Trustee for authentication,
and the Trustee shall thereupon authenticate and deliver said Notes to or upon
the written order of the Company, signed by its Chairman of the Board,
President or a Vice President and by its Chief Financial Officer, Treasurer or
an Assistant Treasurer or its Secretary or an Assistant Secretary, without
further action by the Company.
SECTION 1.04. CERTIFICATE OF AUTHENTICATION. The Trustee's certificate
of authentication to be borne on the Notes shall be substantially as provided
in the Indenture.
ARTICLE TWO
APPOINTMENT OF THE TRUSTEE FOR THE NOTES
SECTION 2.01. APPOINTMENT OF TRUSTEE. Pusuant and subject to the
Indenture, the Company and the Trustee hereby constitute the Trustee as
trustee to act on behalf of the Holders of the Notes, and as the principal
Paying Agent and Security Registrar for the Notes, effective upon execution
and delivery of this First Supplemental Indenture. By execution,
acknowledgment and delivery of this First Supplemental Indenture, the Trustee
hereby accepts appointment as trustee, Paying Agent and Security Registrar
with respect to the Notes, and agrees to perform such trusts upon the terms
and conditions in the Indenture and in this First Supplemental Indenture set
forth.
SECTION 2.02. RIGHTS, POWERS, DUTIES AND OBLIGATIONS OF THE TRUSTEE.
Any rights, powers, duties and obligations by any provisions of the Indenture
conferred or imposed upon the Trustee shall, insofar as permitted by law, be
conferred or imposed upon and exercised or performed by the Trustee with
respect to the Notes.
ARTICLE THREE
DEFINITIONS
So long as any of the Notes are Outstanding, the following definitions
shall be applicable to the Notes, be included as defined as terms for all
purposes under the Indenture with respect to the Notes and, to the extent
inconsistent with the definition of such term contained in Section 101 of the
Indenture, shall replace such definition for purposes of the Notes:"Acquired
Debt" means Debt of a Person (a) existing at the time such Person becomes a
Restricted Subsidiary or (b) assumed in connection with the acquisition of
assets from such Person, in each case other than Debt incurred in connection
with, or in contemplation of, such Person becoming a Restricted Subsidiary or
such acquisition. Acquired Debt shall be deemed to be incurred on the date of
the related acquisition of assets from any Person or the date the acquired
Person becomes a Restricted Subsidiary.
"Adjusted Consolidated Net Income" means Consolidated Net Income,
adjusted by excluding, without duplication, (a) any net after-tax
extraordinary gains or losses (less all fees and expenses relating thereto);
(b) any net after-tax gains or losses (less all fees and expenses relating
thereto) attributable to asset dispositions other than in the ordinary course
of business; (c) the portion of net income (or loss) of any Person (other than
the Company or a Restricted Subsidiary) in which the Company or any Restricted
Subsidiary has an ownership interest, except to the extent of the amount of
dividends or other distributions actually paid to the Company or any
Restricted Subsidiary in cash dividends or distributions during such period;
(d) the net income (or loss) of any Person combined with the Company or any
Restricted Subsidiary on a "pooling of interests" basis attributable to any
period prior to the date of combination and (e) the net income of any
Restricted Subsidiary to the extent that the declaration or payment of
dividends or similar distributions by such Restricted Subsidiary is not at the
date of determination permitted, directly or indirectly, by operation of
the
terms of its charter or any agreement, instrument, judgment, decree, order,
statute, rule or governmental regulation applicable to such Restricted
Subsidiary or its stockholders.
"Adjusted Debt to Capital Ratio" means the ratio of (a) total Debt of the
Company and its Restricted Subsidiaries on a consolidated basis less (i) Match
Funded Debt and (ii) nonrecourse Debt of any Restricted Subsidiary that is not
consolidated with the Company on its financial statements in accordance with
GAAP to (b) Consolidated Net Worth.
"Adjusted Earnings Available for Fixed Charges" is defined as the sum of
(1) Adjusted Consolidated Net Income; plus (2) Consolidated Interest Expense,
adjusted by excluding Match Funded Fixed Charges, plus (3) Consolidated Income
Tax Expense, plus (4) Consolidated Noncash Items.
"Adjusted Fixed Charges" means the amount which is expensed in any period
for Consolidated Interest Expense of the Company and its Restricted
Subsidiaries, Preferred Stock dividends of the Company (other than dividends
paid in shares of Qualified Capital Stock) declared and paid or payable during
such period and accrued Redeemable Capital Stock dividends of the Company and
its Restricted Subsidiaries for such period, whether or not declared or paid,
adjusted by subtracting Match Funded Fixed Charges.
"Affiliate" means, with respect to any specified Person (a) any other
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person or (b) any other Person
that owns, directly or indirectly, 10 percent or more of such specified
Person's Capital Stock or any executive officer or director of any such
specified Person or other Person. For the purposes of this definition,
"control," when used with respect to any specified Person, means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Average Life" means, as of the date of determination with respect to any
Debt, the quotient obtained by dividing (a) the sum of the products of (i) the
number of years from the date of determination to the date or dates of each
successive scheduled principal payment (including, without limitation, any
sinking fund requirements) of such Debt multiplied by (ii) the amount of each
such principal payment, by (b) the sum of all such principal payments.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, partnership interests, participations, rights in or other
equivalents (however designated) of such Person's equity, including any
Preferred Stock, and any rights (other than debt securities convertible into
or exchangeable or exercisable for such equity), warrants or options
exchangeable or exercisable for or convertible into such equity, whether now
outstanding or issued after the Issue Date.
"Cash Equivalents'' means (a) securities with maturities of one year or
less from the date of acquisition issued or fully guaranteed or insured by the
United States Government or any agency thereof; (b) certificates of deposit,
bankers acceptances and Eurodollar time deposits with maturities of one year
or less from the date of acquisition and overnight bank deposits of any
commercial bank having capital and surplus in excess of $500,000,000;
(c) commercial paper of a domestic issuer rated at least A-l by S&P or P-l by
Moody's; (d) securities with maturities of one year or less from the date of
acquisition issued or fully guaranteed by any state, commonwealth or territory
of the United States, by any political subdivision or taxing authority of any
such state, commonwealth or territory or by any foreign government, the
securities of which state, commonwealth, territory, political subdivision,
taxing authority or foreign government (as the case may be) are rated at least
A by S&P or A2 by Moody's; or (e) shares of money market mutual or similar
funds which invest exclusively in assets satisfying the requirements of
clauses (a) through (d) of this definition.
"Change of Control" means the occurrence of any of the following events:
(a) any "person" or "group" (as such terms are used in Sections 13(d) and
14(d) of the Exchange Act of 1934, as amended (the "Exchange Act")), other
than Permitted Holders, is or becomes the "beneficial owner" (as defined in
Rules 13d-3 and 13d-5 under the Exchange Act, except that a Person shall be
deemed to have "beneficial ownership" of all securities that such Person has
the right to acquire, whether such right is exercisable immediately or only
after the passage of time), directly or indirectly, of more than 40 percent of
the total outstanding Voting Stock of the Company; (b) the Company
consolidates with, or merges with or into, another Person or conveys,
transfers, leases or otherwise disposes of all or substantially all of its
assets to any Person, or any Person consolidates with, or merges with or into,
the Company, in any such event pursuant to a transaction in which the
outstanding Voting Stock of the Company is converted into or exchanged for
cash, securities or other property, other than any such transaction (i) where
the outstanding Voting Stock of the Company is not converted or exchanged at
all (except to the extent necessary to reflect a change in the jurisdiction of
incorporation of the Company) or is converted into or exchanged for (A) Voting
Stock (other than Redeemable Capital Stock) of the surviving or transferee
corporation and/or (B) cash, securities and other property (other than Capital
Stock of the entity surviving such transaction) in an amount that could be
paid by the Company as a Restricted Payment as described in Section 5.01
hereof (as such amount shall be treated as a Restricted Payment subject to the
provisions of the Notes as described in Section 5.01 hereof and (ii) where
immediately after such transaction, no person'' or "group" (as such terms
are used in Sections 13(d) and 14(d) of the Exchange Act), other than
Permitted Holders, is the "beneficial owner" (as defined in Rules 13d-3 and
13d-5 under the Exchange Act, except that a Person shall be deemed to have
"beneficial ownership" of all securities that such Person has the right to
acquire, whether such right is exercisable immediately or only after the
passage of time), directly or indirectly, of 40 percent or more of the total
outstanding Voting Stock of the surviving or transferee corporation;
(c) Continuing Directors shall at any time cease to constitute a majority of
the Board of Directors of the Company; or (d) the Company is liquidated or
dissolved or adopts a plan of liquidation or dissolution other than in a
transaction which complies with the provisions described in Article Seven.
"CMBS'' means collateralized mortgage backed securities.
"Consolidated Income Tax Expense'' for any period means the provision for
federal, state, local and foreign income taxes of the Company and all
Restricted Subsidiaries for such period as determined on a consolidated basis
in accordance with GAAP.
"Consolidated Interest Expense" means, for any period, and without
duplication, all interest (including the interest component of rentals on
leases reflected in accordance with GAAP as capitalized leases on the
consolidated balance sheet of the Company and its Restricted Subsidiaries,
letter of credit fees, Interest Rate Agreement fees, commitment fees and other
like financial charges) and all amortization of debt discount on all Debt
(including, without limitation, payment in kind, zero coupon and other
securities) of the Company and its Restricted Subsidiaries, determined in
accordance with GAAP less interest expense attributable to nonrecourse Debt of
any Restricted Subsidiary that is not consolidated with the Company on its
financial statements in accordance with GAAP; provided that (x) the
Consolidated Interest Expense attributable to interest on any Debt computed on
a pro forma basis and (A) bearing a floating interest rate shall be computed
as if the rate in effect on the date of computation had been the applicable
rate for the entire period and (B) which was not outstanding during the period
for which the computation is being made but which bears, at the option of the
Company, a fixed or floating rate of interest, shall be computed by applying
at the option of the Company, either the fixed or floating rate, and (y) in
making such computation, the Consolidated Interest Expense attributable to
interest on any Debt under a revolving credit facility computed on a pro forma
basis shall be computed based upon the average daily balance of such Debt
during the applicable period.
"Consolidated Net Income'' for any period means the amount of net income
(or loss) of the Company and its Restricted Subsidiaries for such period
determined on a consolidated basis in accordance with GAAP.
"Consolidated Net Worth" means, at any date of determination, the
consolidated stockholders' equity (excluding Redeemable Capital Stock or
treasury stock) of the Company and any Restricted Subsidiaries, as determined
on a consolidated basis in accordance with GAAP.
"Consolidated Noncash Items" means, for any period, the aggregate
depreciation, amortization and other noncash items (including noncash interest
expense) of the Company and any Restricted Subsidiary reducing or increasing
Consolidated Net Income for such period, determined on a consolidated basis in
accordance with GAAP (excluding any such noncash charge if and to the extent
that the Company has made or shall, under GAAP, be required to be made an
accrual of or reserve for cash charges for any future period).
"Continuing Directors'' shall mean, collectively, (i) all members of the
Board of Directors of the Company on the Issue Date and (ii) all members of
the Board of Directors of the Company who assume office after the Issue Date
and whose nomination for election by the Company's shareholders was approved
by a majority of the directors then in office whose nomination for election
was previously so approved.
"Debt" of any Person means, without duplication, any indebtedness of such
Person, whether or not contingent, in respect of (i) borrowed money evidenced
by bonds, notes, debentures or similar instruments, (ii) indebtedness secured
by any mortgage, pledge, lien, charge, encumbrance or any security interest
existing on property owned by such Person, (iii) the reimbursement
obligations, contingent or otherwise, in connection with any letters of credit
actually issued or amounts representing the balance deferred and unpaid of the
purchase price of any property or services except any such balance that
constitutes an accrued expense or trade payable, (iv) all obligations under or
in respect of Interest Rate Agreements, (v) all Debt referred to in the
preceding clauses, of other Persons and all dividends of other Persons, the
payment of which is secured by (or for which the holders of such Debt have an
existing right, contingent or otherwise, to be secured by) any Lien upon or
with respect to property owned by such Person, even though such Person has not
assumed or become liable for the payment of such Debt (the amount of such
obligation being deemed to be the lesser of the fair market value of such
property or asset (as determined in good faith by the Company's Board of
Directors whose determination shall be conclusive) or the amount of the
obligation so secured), (vi) any lease of property by such Person as lessee
which is reflected in such Person's consolidated balance sheet as a
capitalized lease in accordance with GAAP, (vii) all Redeemable Capital Stock
of such Person valued at the greater of its voluntary or involuntary maximum
fixed repurchase price plus accrued and unpaid dividends (for purposes hereof,
the "maximum fixed repurchase price" of any Redeemable Capital Stock which
does not have a fixed repurchase price shall be calculated in accordance with
the terms of such Redeemable Capital Stock as if such Redeemable Capital Stock
were purchased on any date on which Debt shall be required to be determined
pursuant to the Indenture, and if such price is based upon, or measured by,
the fair market value of such Redeemable Capital Stock, such fair market value
shall be determined in good faith by the board of directors of the issuer of
such Redeemable Capital Stock), (viii) all guarantees by such Person of Debt
referred to in this definition of any other Person or (ix) any amendment,
supplement, modification, deferral, renewal, extension, refunding or
refinancing of any Debt of the types referred to in clauses (i) through (viii)
above, (it being understood that "Debt" shall be deemed to be incurred by the
Company and its Restricted Subsidiaries on a consolidated basis whenever the
Company and its Restricted Subsidiaries on a consolidated basis shall create,
assume, guarantee or otherwise become liable in respect thereof; Debt of a
Restricted Subsidiary of the Company existing prior to the time it became a
Restricted Subsidiary of the Company shall be deemed to be incurred upon such
Restricted Subsidiary's becoming a Restricted Subsidiary of the Company; and
Debt of a person existing prior to a merger or consolidation of such person
with the Company or any Restricted Subsidiary of the Company in which such
person is the successor to the Company or such Restricted Subsidiary shall be
deemed to be incurred upon the consummation of such merger or consolidation);
provided, however that the term Debt shall not include any such indebtedness
that has been the subject of an "in substance" defeasance in accordance with
GAAP.
"DTC" means The Depository Trust Company.
"Global Note" means a Note in book-entry form registered in the name of
DTC or its nominee or in the name of any successor depositary for the Notes or
any nominee of such successor.
"Government Insured Mortgage Assets" means interests in mortgages that
are insured or guaranteed by the U.S. Government or its agencies and are
secured by multifamily housing complexes located throughout the United States.
"Interest Rate Agreements" means interest rate protection agreements in
the form of a swap, cap, collar, floor, rate lock, or similar agreement
designed to protect against or manage exposure to fluctuations in interest
rates relating to any floating rate Debt of the Company or its Subsidiaries.
"Investment" means, with respect to any Person, any direct or indirect
advance, loan or other extension of credit or capital contribution to (by
means of a transfer of cash or other property to others or any payment for
property or services for the account or use of others), or any purchase,
acquisition or ownership by such Person of any Capital Stock, bonds, notes,
debentures or other securities or evidences of Debt issued or owned by, any
other Person and all other items that would be classified as investments on a
balance sheet prepared in accordance with GAAP. For purposes of the
definition of "Unrestricted Subsidiary" and Article Six hereof,
(i) "Investment" shall include the fair market value of the assets (net
of liabilities) of any Restricted Subsidiary of the Company at the
time that such Restricted Subsidiary of the Company is designated an
Unrestricted Subsidiary and shall exclude the fair market value of the assets
(net of liabilities) of any Unrestricted Subsidiary at the time that such
Unrestricted Subsidiary is designated a Restricted Subsidiary of the Company
and (ii) any property transferred to or from any Person shall be valued at its
fair market value at the time of such transfer, in each case as determined by
the Board of Directors of the Company in good faith.
"Issue Date" means the date the Notes are first authenticated and
delivered under the Indenture.
"Lien" means any mortgage, charge, pledge, lien (statutory or otherwise),
privilege, security interest, hypothecation, assignment for security, claim,
or preference or priority or other encumbrance upon or with respect to any
property owned on the Issue Date or thereafter assigned.
"Make-Whole Amount" means, in connection with any optional redemption of
any Notes, the excess, if any, of (i) the aggregate present value as of the
date of such redemption of each dollar of principal being redeemed and the
amount of interest (exclusive of interest accrued to the date of redemption)
that would have been payable in respect of each such dollar if such redemption
had not been made, determined by discounting, on a semiannual basis, such
principal and interest at the Reinvestment Rate (determined on the third
Business Day preceding the date notice of such redemption is given) from the
respective dates on which such principal and interest would have been payable
if such redemption had not been made, to the date of redemption, over (ii) the
aggregate principal amount of the Notes being redeemed.
"Match Funded Debt" means Debt of a special purpose, bankruptcy remote
Restricted Subsidiary as to which no recourse exists either to the Company or
any other Restricted Subsidiary, on which (i) the principal amortization and
maturity of such Debt are based upon the aggregate principal amortization and
maturity of a like or greater amount of the funded assets, and (ii) the
interest rate of such Debt is at a fixed rate; provided, however, that the
interest rate of such Debt may be at a floating rate if (x) the funded assets
include adjustable rate assets or (y) the funded assets have been effectively
swapped under an Interest Rate Agreement.
"Match Funded Fixed Charges" means interest expenses relating to any
Match Funded Debt.
"Moody's" means Xxxxx'x Investors Service, Inc. and its successors.
"Mortgage" means a mortgage or deed of trust on real property which has
been improved by a completed single or multifamily dwelling unit or commercial
real estate property.
"Mortgage Loan" means a Mortgage Note and the related Mortgage.
"Mortgage Note" means a promissory note which has a term not exceeding 30
years evidencing a loan or advance which is secured by a Mortgage.
"Mortgage Warehouse Debt" means Debt of any Person under any warehouse
line of credit, mortgage loan repurchase agreement or similar facility or
under any commercial paper program (a) that is incurred for the purpose of
funding the origination or purchase of Mortgage Loans or Mortgage Notes that
are intended to be sold to investors or securitized, (b) that in the case of
any warehouse line of credit or similar facility is, or, in the case of any
commercial paper program, the letters of credit or revolving credit facility
providing credit enhancement or liquidity backup for such commercial paper
program are, secured by Mortgage Loans, Mortgage Notes, CMBS or any
combination thereof owned by such Person[, and] (c) the outstanding amount of
which shall not exceed 100 percent of the principal amount of the Mortgage
Loans, Mortgage Notes or CMBS securing such Debt.
"Net Cash Proceeds'' means, with respect to any issuance or sale of
Capital Stock, or debt securities that have been converted into or exchanged
for Capital Stock, the proceeds of such issuance or sale in the form of cash
or Cash Equivalents, including payments in respect of deferred payment
obligations when received in the form of cash or Cash Equivalents, net of
attorney's fees, accountant's fees and brokerage, consulting, underwriting and
other fees and expenses, actually incurred in connection with such issuance or
sale and net of taxes paid or payable as a result thereof.
"Paying Agent'' means any Person authorized by the Company to make
payments of principal, premium or interest with respect to the Notes on behalf
of the Company.
"Permitted Holders" means Xxxxxxx X. Xxxxxxx and H. Xxxxxxx Xxxxxxxxxx
and trusts controlled by either of them, CRI, Inc. and its successors, and
Affiliates of each of the foregoing.
"Permitted Indebtedness'' means:
(a) Debt of the Company pursuant to the Notes;
(b) Debt of the Company or any Restricted Subsidiary outstanding on
the date of the Indenture and listed on a schedule thereto, other
than any Debt described in any other paragraph of this definition;
(c) Debt of the Company owing to any Wholly Owned Restricted
Subsidiary; provided that any Debt of the Company owing to any
such Restricted Subsidiary is made pursuant to an intercompany
note and is subordinated in right of payment from and after such
time as the Notes shall become due and payable (whether at Stated
Maturity, upon acceleration or otherwise) to the payment and
performance of the Company's obligations under the Notes; provided
further, that any disposition, pledge or transfer of any such Debt
to a Person (other than a disposition, pledge or transfer to
another Wholly Owned Restricted Subsidiary) shall be deemed to be
an incurrence of such Debt by the Company not permitted by this
clause (c);
(d) Debt of a Wholly Owned Restricted Subsidiary owing to the Company
or to another Wholly Owned Restricted Subsidiary of the Company;
provided that any such Debt is made pursuant to an unsubordinated
intercompany note; provided, further, that (i) any disposition,
pledge or transfer of any such Debt to a Person (other than a
disposition, pledge or transfer to the Company or another Wholly
Owned Restricted Subsidiary) shall be deemed to be an incurrence
of such Debt by such Wholly Owned Restricted Subsidiary not
permitted by this clause (d) and (ii) any transaction pursuant to
which any Wholly Owned Restricted Subsidiary, which is owed Debt
by any other Restricted Subsidiary, ceases to be a Wholly Owned
Restricted Subsidiary shall be deemed to be an incurrence of such
Debt not permitted by this clause (d);
(e) repurchase agreements (including "gestation" repurchase
transactions) entered into in the ordinary course of the mortgage
banking business; provided that the aggregate payment obligations
under all such repurchase agreements at any time outstanding shall
not exceed 70 percent of the amount equal to (i) the aggregate
amortized
cost of all Mortgage Loans, Government Insured Mortgage Assets and
CMBS owned by the Company and its Restricted Subsidiaries less
(ii) the principal amount of Match Funded Debt;
(f) the endorsement of negotiable instruments by the Company or any
Restricted Subsidiary for deposit or collection or similar
transactions in the ordinary course of business;
(g) unsecured Debt of the Company under one or more bank credit
agreements in an amount outstanding at any one time of up to $75
million;
(h) Debt under Interest Rate Agreements, provided that such agreements
relate to Debt permitted pursuant to Section 5.02 hereof and
provided that such agreements have a notional amount no greater
than the payments due with respect to the Debt being hedged
thereby and such agreements are not for purposes of speculation;
(i) Match Funded Debt;
(j) Debt incurred by the Company in an amount not to exceed $25
million pursuant to a secured facility for the purpose of
financing the purchase of real property or Mortgage Loans;
(k) Servicing Secured Indebtedness in an amount not to exceed $50
million at any time outstanding;
(l) Mortgage Warehouse Debt;
(m) Debt of the Company or any Restricted Subsidiary not otherwise
permitted to be incurred pursuant to clauses (a) through (1) above
which, together with any other outstanding Debt incurred pursuant
to this clause (m) has an aggregate principal amount not in excess
of $10 million at any time outstanding; and
(n) any renewals, extensions, substitutions, refinancings or
replacements (each, for purpose of this clause, a "refinancing")
of any Debt described in clauses (a) and (b) of this definition,
including any successive refinancings, so long as (i) any such new
Debt shall be in a principal amount that does not exceed the
principal amount (or, if such Debt being refinanced provides for
an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration thereof, such lesser
amount as of the date of determination) so refinanced, plus the
amount of any premium required to be paid in connection with such
refinancing pursuant to the terms of the Debt refinanced or the
amount of any premium actually paid at such time to refinance the
Debt as determined by the Company in good faith, plus, in either
case, the amount of reasonable expenses incurred in connection
with such refinancing, (ii) (A) if such new Debt has an Average
Life to Stated Maturity shorter than that of the Notes or a final
Stated Maturity earlier than the final Stated Maturity of the
Notes, such new Debt shall have an Average Life no shorter than
the remaining Average Life of the Debt so refinanced and a final
Stated Maturity no earlier than the final Stated Maturity of the
Debt so renewed, extended, substituted, refinanced or replaced or
(B) in all other cases, the Stated Maturity of principal (or any
required repurchase, redemption or sinking fund payments) of such
new Debt shall be on or after the final Stated Maturity or
principal of the Notes; and (iii) in the case of any refinancing of
Subordinated Debt, such new Debt is made subordinate to the Notes
at least to the same extent as the Debt being refinanced, provided
that Debt of the Company may not be refinanced by Debt of any
Subsidiary of the Company pursuant to this clause (n).
"Permitted Investments" means any of the following:
(a) Investments in Cash Equivalents;
(b) Investments in the Company or any Wholly Owned Restricted
Subsidiary engaged in the commercial mortgage business;
(c) intercompany Indebtedness to the extent permitted under
clauses (c) and (d) of the definition of Permitted Indebtedness;
(d) negotiable instruments held for deposit or collection in the
ordinary course of business, except to the extent that they would
constitute Investments in Affiliates;
(e) Investments in stock, obligations or securities received in
settlement of debts owing to the Company or a Restricted
Subsidiary as a result of foreclosure, perfection or enforcement
of any Lien, in each case in the ordinary course of business;
(f) travel, moving and other advances made to officers, employees and
consultants in the ordinary course of business;
(g) Investments by the Company or any Restricted Subsidiary in
another Person, if as a result of such Investment (i) such other
Person becomes a Wholly Owned Restricted Subsidiary or (ii) such
other Person is merged or consolidated with or into, or transfers
or conveys all or substantially all of its assets to, the Company
or a Restricted Subsidiary;
(h) Investments in any special purpose, bankruptcy remote Restricted
Subsidiary formed to incur Match Funded Debt pursuant to
clause (i) of the definition of "Permitted Indebtedness";
(i) Investments in Mortgage Loans, CMBS, interest only strips,
Government Insured Mortgage Assets, mortgage servicing rights and
Interest Rate Agreements, including short-term Investments in
escrow accounts established in connection with the origination of
Mortgage Loans intended for securitization, in each case made in
the ordinary course of business;
(j) so long as the Company could incur at least $1.00 of Debt (other
than Permitted Indebtedness) pursuant to Section 5.02 hereof,
Investments in an amount not to exceed $40 million at any time
outstanding in any Person engaged in the commercial mortgage
business as long as the Company would own a majority of the
Voting Stock and a majority of the value of economic interests in
such Person; and
(k) so long as the Company could incur at least $1.00 of Debt (other
than Permitted Indebtedness) pursuant to Section 5.02 hereof,
Investments in an amount not to exceed $10 million at any time
outstanding in any Person engaged in the real estate business as
long as the Company would own a majority of the Voting Stock and
a majority of the value of the economic interests in such Person.
"Person" means any individual, corporation, partnership, business trust,
joint venture, association, joint stock company, trust, unincorporated
organization, real estate investment trust, limited liability company or other
entity, or government or any agency or political subdivision thereof.
"Preferred Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated) of such
Person's preferred or preference stock, whether now outstanding, or issued
after the Issue Date, and including, without limitation, all classes and
series of preferred or preference stock of such Person.
"Qualified Capital Stock" means any and all Capital Stock of such Person
other than Redeemable Capital Stock.
"Redeemable Capital Stock" means any class or series of Capital Stock
that, either by its terms, by the terms of any security into which it is
convertible or exchangeable or by contract or otherwise, is, or upon the
happening of an event or passage of time would be, required to be redeemed
prior to the final Stated Maturity of the Notes or is redeemable at the option
of the holder thereof at any time prior to such final Stated Maturity, or is
convertible into or exchangeable for debt securities at any time prior to such
final Stated Maturity.
"Reinvestment Rate" means 0.375 percent plus the arithmetic mean of the
yields under the heading "Week Ending" published in the most recent
Statistical Release under the caption "Treasury Constant Maturities" for the
maturity (rounded to the nearest month) corresponding to the remaining life to
maturity, as of the payment date of the principal being redeemed or paid. If
no maturity exactly corresponds to such maturity, yields for the two published
maturities most closely corresponding to such maturity shall be calculated
pursuant to the immediately preceding sentence and the Reinvestment Rate shall
be interpolated or extrapolated from such yields on a straight-line basis,
rounding in each of such relevant periods to the nearest month. For the
purposes of calculating the Reinvestment Rate, the most recent Statistical
Release published prior to the date of determination of the Make-Whole Amount
shall be used. If the format or content of the Statistical Release changes in
a manner that precludes determination of the Treasury yield in the above
manner, then the Treasury yield shall be determined in the manner that most
closely approximates the above manner, as reasonably determined by the
Company.
"Restricted Subsidiary" means any Subsidiary of the Company that has not
been designated as an "Unrestricted Subsidiary." On the Issue Date, all
Subsidiaries of the Company will be Restricted Subsidiaries.
"S&P" means Standard and Poor's Rating Services, a division of the
XxXxxx-Xxxx Companies and its successors.
"Servicing Rights" means, at any date of determination, the mortgage loan
servicing rights and related receivables owned by the Company and its
Restricted Subsidiaries.
"Servicing Secured Indebtedness'' means, Debt of the Company or its
Restricted Subsidiaries under any agreement or facility, other than Mortgage
Warehouse Debt, that is secured by, among other things, a first priority
security interest in Servicing Rights, and is advanced in an amount not to
exceed the value of such Servicing Rights.
"Significant Subsidiary" means any Restricted Subsidiary that would be a
"significant subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X,
promulgated pursuant to the Securities Act of 1934, as amended, as such
Regulation is in effect on the date of the Indenture.
"Stated Maturity" means, when used with respect to any Note or any
installment of interest thereon, the date specified in such Note as the fixed
date on which the principal of such Note or such installment of interest is
due and payable, and, when used with respect to any other Indebtedness, means
the date specified in the instrument governing such Indebtedness as the fixed
date on which the principal of such Indebtedness, or any installment of
interest thereon, is due and payable.
"Statistical Release'' means the statistical release designated
"H.15(519)" or any successor publication which is published weekly by the
Federal Reserve System and which reports yields on actively traded United
States government securities adjusted to constant maturities, or, if such
statistical release is not published at the time of any determination under
the Indenture, then such other reasonably comparable index which shall be
designated by the Company.
"Subordinated Indebtedness" means Indebtedness of the Company that is
expressly subordinated in right of payment to the Notes.
"Subsidiary" means a Person a majority of the voting power of the voting
equity securities, or a majority of the value of the equity interests, of
which are owned, directly or indirectly, by the Company and/or by one or more
Subsidiaries of the Company.
"Unrestricted Subsidiary" means any Subsidiary of the Company that the
Company has classified as an "Unrestricted Subsidiary" and that has not been
reclassified as a Restricted Subsidiary, pursuant to the terms of the
Indenture.
"Voting Stock" means any class or classes of Capital Stock pursuant to
which the holders thereof have the general voting power under ordinary
circumstances to elect at least a majority of the board of directors,
managers, trustees or other voting members of the governing body of any Person
(irrespective of whether or not, at the time, stock of any other class or
classes shall have, or might have, voting power by reason of the happening of
any contingency).
"Wholly Owned Restricted Subsidiary" means any Restricted Subsidiary of
the Company of which 100 percent of Capital Stock is owned, directly or
indirectly, by the Company or another Wholly Owned Restricted Subsidiary of
the Company, including CRIIMI MAE Services Limited Partnership.
ARTICLE FOUR
EVENTS OF DEFAULT
SECTION 4.01. ADDITIONAL EVENT OF DEFAULT. Pursuant to Section 301(16)
of the Indenture, so long as any of the Notes are Outstanding, the following
event shall replace Section 501(c) of the Indenture as an Event of Default
with respect to the Notes:"A default in the performance, or breach, of the
provisions described in Article Seven of the First Supplemental Indenture or
the failure to make or consummate a Change of Control Offer in accordance with
the provisions of Section 5.07 of the First Supplemental Indenture."Section
4.02. NOTICE OF DEFAULT OR EVENT OF DEFAULT. The Company shall deliver
written notice to the Trustee within 30 calendar days after any executive
officer of the Company becomes aware of the occurrence of any event which
constitutes, or with the giving of notice or the lapse of time or both would
constitute, a Default or Event of Default, describing such Default or Event of
Default, its status and what action the Company is taking or proposes to
take
with respect thereto.
ARTICLE FIVE
COVENANTS OF THE COMPANY
Pursuant to Section 301(16) of the Indenture, so long as any of the Notes
are Outstanding, the Company covenants and agrees, in addition to the
covenants and agreements contained in Article Ten of the Indenture, as
follows:
SECTION 5.01. LIMITATION ON RESTRICTED PAYMENTS. (a) The Company will
not, and will not permit any of its Restricted Subsidiaries to, directly or
indirectly, take any of the following actions:(i)declare, pay or set apart any
funds for the payment of any dividend on, or make any distribution to holders
of, any Capital Stock of the Company (other than dividends or distributions to
the extent payable in Qualified Capital Stock or in options, warrants or other
rights to acquire such shares of Qualified Capital Stock of the Company);
(ii)repurchase, redeem or otherwise acquire or retire for value, directly or
indirectly, any Capital Stock of the Company or any Restricted Subsidiary of
the Company (other than shares of Capital Stock of any Wholly Owned Restricted
Subsidiary) or any options, warrants or other rights to acquire such shares of
Capital Stock;(iii) declare, pay or set apart any funds for the payment of any
dividend on, or make any distribution on any shares of Capital Stock of any
Restricted Subsidiary to any Person (other than with respect to any shares of
Capital Stock held by the Company or any Wholly Owned Restricted Subsidiary
and other than pro rata dividends or distributions on a class of Capital Stock
of any Restricted Subsidiary the majority of which is owned by the Company or
a Wholly Owned Restricted Subsidiary; provided that no Restricted Subsidiary
shall declare or pay such pro rata dividend or distribution on its Capital
Stock (other than to the Company or a Wholly Owned Restricted Subsidiary) at a
time when it has outstanding Debt owed to the Company or a Wholly Owned
Restricted Subsidiary);(iv) make any principal payment on, or repurchase,
redeem, defease or otherwise acquire or retire for value, prior to any
scheduled principal payment, sinking fund payment or maturity, any
Subordinated Indebtedness; or(v) make any Investment in any Person, including
an Unrestricted Subsidiary, other than a Permitted Investment;(each of the
foregoing actions described in clauses (i) through (v) above, other than any
such action that is a Permitted Payment (as defined below), is referred to
herein as a "Restricted Payment"), unless immediately after giving effect to
the proposed Restricted Payment (the amount of any such Restricted Payment, if
other than cash, as determined in good faith by the Board of Directors of the
Company, whose determination shall be conclusive and evidenced by a Board
Resolution), (1) no Default or Event of Default shall have occurred and be
continuing, (2) the Company could incur at least $1.00 of additional Debt
(other than Permitted Indebtedness) pursuant to Section 5.02 hereof; and
(3) the aggregate amount of all such Restricted Payments by the Company and
its Restricted Subsidiaries declared or made after the Issue Date does not
exceed the sum of:(A) (i) so long as the Company maintains its status as a
REIT under the Internal Revenue Code of 1986, as amended (the "Code"), 100
percent of the "real estate investment trust taxable income" of the Company as
determined under Section 857(b)(2) of the Code or any successor provision
computed prior to taking into account any deductions allowed pursuant to
Section 857(b)(2) of
the Code and computed after giving effect to any net deficit in "real estate
investment trust taxable income" for prior years, whether or not such deficit
is deductible as a net operating loss carryforward for the year of
determination, accrued on a cumulative basis during the period commencing on
October 1, 1997 and ending on the last day of the Company's most recent fiscal
quarter ending prior to the date of such Restricted Payment or (ii) in the
event the Company no longer qualifies as a REIT under the Code, the sum of
(a) 50 percent of the aggregate cumulative Adjusted Consolidated Net Income
(or if such aggregate cumulative Adjusted Consolidated Net Income shall be a
loss, minus 100 percent of such loss) accrued on a cumulative basis during the
period commencing on the first day of the fiscal quarter following the failure
of the Company to qualify as a REIT under the Code and ending on the last day
of the Company's most recent fiscal quarter ending prior to the date of such
Restricted Payment, and (b) 100 percent of any cumulative amount available
under clause (i) above for the period commencing October 1, 1997 and ending on
the last day of the Company's most recent fiscal quarter ending prior to the
failure of the Company to qualify as a REIT under the Code (or minus 100
percent of any such amount if a deficit); plus(B) the aggregate of the Net
Cash Proceeds received by the Company after October 1, 1997 from the issuance
or sale (other than to any of its Restricted Subsidiaries) of Qualified
Capital Stock of the Company (including upon the exercise of options, warrants
or rights) or warrants, options or rights to purchase shares of Qualified
Capital Stock of the Company; plus(C) the aggregate of the Net Cash Proceeds
received by the Company after October 1, 1997 from the issuance or sale (other
than to any of its Restricted Subsidiaries) of any debt securities or
Redeemable Capital Stock that is subsequently converted into or exchanged for
Qualified Capital Stock of the Company plus (without duplication) any
additional Net Cash Proceeds received by the Company at the time of such
conversion or exchange; plus(D) 100 percent of the net reduction in
Investments, subsequent to the Issue Date, in any Person, resulting from
payments of interest on Debt, dividends, repayments of loans or advances, or
other transfers of property (but only to the extent such interest, dividends,
repayments or other transfers of property are not included in the calculation
of "real estate investment trust taxable income" or Adjusted Consolidated Net
Income, as the case may be), in each case to the Company or any Restricted
Subsidiary from any Person (including, without limitation, from Unrestricted
Subsidiaries) or from redesignations of Unrestricted Subsidiaries as
Restricted Subsidiaries (valued in each case as provided in the definition of
Investments''), not to exceed in the case of any Person the amount of
Investments in such Person which were made subsequent to the Issue Date by the
Company or any Restricted Subsidiary and which were treated as a Restricted
Payment; plus(E) $15 million.
(b) Notwithstanding paragraph (a) above, the Company and any
Restricted Subsidiary may take the following actions so long as (with respect
to clauses (ii), (iii), (iv) and (v)) no Default or Event of Default shall
have occurred and be continuing (each being referred to as a "Permitted
Payment"):
(i) the payment of any dividend within 60 days after the date of
declaration thereof, if at such date such declaration complied
with the provisions of paragraph (a) above and such payment shall
be deemed to have been paid on such date of declaration for
purposes of the calculation required by the foregoing
paragraph
(a);(ii) the purchase, redemption or other acquisition or
retirement for value of any shares of Capital Stock of the
Company in exchange for, or out of the Net Cash Proceeds of, a
substantially concurrent issuance and sale (other than to a
Restricted Subsidiary) of shares of Qualified Capital Stock of
the Company;(iii) make any principal payment on, or purchase,
redeem, defease or otherwise acquire or retire for value any
Subordinated Indebtedness in exchange for, or out of the Net Cash
Proceeds of, a substantially concurrent issuance and sale (other
than to a Restricted Subsidiary) of shares of Qualified Capital
Stock of the Company; and(iv) make any principal payment on, or
purchase, redeem, defease or otherwise acquire or retire for
value any Subordinated Indebtedness (referred to herein as the
"Subordinated Indebtedness being refinanced") in exchange for, or
out of the Net Cash Proceeds of a substantially concurrent
incurrence (other than to a Restricted Subsidiary) of,
Subordinated Indebtedness of the Company so long as (A) the
principal amount of such new Subordinated Indebtedness does not
exceed the principal amount (or, if such Subordinated
Indebtedness being refinanced provides for an amount less than
the principal amount thereof to be due and payable upon a
declaration of acceleration thereof, such lesser amount as of the
date of determination) of the Subordinated Indebtedness being
refinanced, plus the amount of any stated premium (including any
Make-Whole Amount) required to be paid in connection with such
refinancing pursuant to the terms of the Subordinated
Indebtedness being refinanced or the amount of any premium
actually paid at such time to refinance the Subordinated
Indebtedness as determined in good faith as being necessary by
the Company, plus, in either case, the amount of reasonable
expenses of the Company incurred in connection with such
refinancing, (B) such new Subordinated Indebtedness is
subordinated to the Notes to the same extent as the Subordinated
Indebtedness being refinanced and (C) (1) if the Subordinated
Indebtedness being refinanced has an Average Life to Stated
Maturity shorter than that of the Notes or a final Stated
Maturity earlier than the final Stated Maturity of the Notes,
such new Subordinated Indebtedness shall have an Average Life to
Stated Maturity no shorter than the Average Life to Stated
Maturity of such refinanced Subordinated Indebtedness and a final
Stated Maturity no earlier than the final Stated Maturity of such
refinanced Subordinated Indebtedness or (2) in all other cases,
each Stated Maturity of principal (or any required repurchase,
redemption or sinking fund payments) of such new Subordinated
Indebtedness shall be on or after the final Stated Maturity or
principal of the Notes; (v) make any distribution which is
necessary to maintain the Company's status as a REIT under the
Code; and (vi) the repurchase, redemption or other acquisition or
retirement for value of shares of Voting Stock of any Restricted
Subsidiary owned by Persons in an amount not to exceed 5 percent
of the
economic interest of such Restricted Subsidiary.The actions
described in clauses (i), (ii), (iii) and (v) of this paragraph
(b) shall be Restricted Payments that shall be permitted to be
taken in accordance with this paragraph (b) but shall reduce the
amount that would otherwise be available for Restricted Payments
under clause (3) of paragraph (a) and that the actions described
in clauses (iv) and (vi) of this paragraph (b) shall be
Restricted Payments that shall be permitted to be taken in
accordance with this paragraph and shall not reduce the amount
that would otherwise be available for Restricted Payments under
clause (3) of paragraph (a).(c) Not later than the date of
making any Restricted Payment, the Company shall deliver to the
Trustee an Officers' Certificate stating that such Restricted
Payment is permitted and setting forth the basis upon which the
required calculations were computed.
SECTION 5.02. LIMITATIONS ON INCURRENCE OF DEBT. The Company will not,
and will not permit any Restricted Subsidiary to, incur any Debt (including
Acquired Debt), other than Permitted Indebtedness, provided that the Company
may incur Debt if at the time of such incurrence either (a) the ratio of
Adjusted Earnings Available for Fixed Charges to Adjusted Fixed Charges for
the period consisting of the four full consecutive fiscal quarters most
recently ended prior to the date on which such additional Debt is to be
incurred (after giving pro forma effect to (i) the incurrence of such Debt and
(if applicable) the application of the net proceeds therefrom, including to
refinance other Debt, as if such Debt was incurred, and the application of
such proceeds occurred, on the first day of such four-quarter period, (ii) the
incurrence, repayment or retirement of any other Debt by the Company and its
Restricted Subsidiaries since the first day of such four-quarter period as if
such Debt was incurred, repaid or retired on the first day of such
four-quarter period (except that, in making such computation, the amount of
Debt under any revolving credit facility shall be computed based upon the
average daily balance of such Debt during such four-quarter period), and
(iii) the acquisition (whether by purchase, merger or otherwise) or
disposition (whether by sale, merger or otherwise) of any company, entity or
business acquired or disposed of by the Company or its Restricted Subsidiaries
(including the operations thereof), as the case may be, since the first day of
such four-quarter period, as if such acquisition or disposition occurred on
the first day of such four-quarter period) shall have been (x) greater than
1.75 to 1 for the period from the Issue Date to the date that is 18 months
following the Issue Date and (y) greater than 2.0 to 1 thereafter or (b) the
Adjusted Debt to Capital Ratio on a pro forma basis after giving effect to the
incurrence of such Debt and to the application of the proceeds therefrom as of
the end of the quarter most recently ended prior to the date on which such
additional Debt is to be incurred shall have been less than 2.0 to 1.
SECTION 5.03. LIMITATION ON AFFILIATE TRANSACTIONS. The Company will
not, and will not permit any of its Restricted Subsidiaries to, enter into or
permit to exist any transaction (including, without limitation, the purchase,
sale, lease or exchange of any property, any employee compensation
arrangements or the rendering of any service) with any Affiliate of the
Company or any Affiliate of any of the Company's Restricted Subsidiaries
unless the terms thereof (i) are no less favorable to the Company or such
Restricted Subsidiary, as the case may be, than those that could be obtained
at the time of such transaction in arm's length dealings with a Person who is
not such an Affiliate, (ii) if such transaction involves an amount in excess
of $5 million, (a) are set forth in writing and (b) have been approved by
resolution adopted by a majority of the members of the Company's or such
Restricted Subsidiary's board of directors having no personal stake in such
transaction and (iii) if such transaction involves an amount in excess of $15
million, have been determined (as set forth in a written opinion) by a
nationally recognized investment banking firm (or, if nationally recognized
investment banking firms do not customarily render opinions with respect to
transactions of such type, by a nationally recognized expert with experience
in evaluating the terms and conditions of transactions of such type) to be
fair, from a financial point of view, to the Company or such Restricted
Subsidiary, as the case may be, and the Company shall have delivered to the
Trustee the writings, resolutions and/or opinions, as the case may be,
required by clauses (ii) and (iii) of this sentence.
The provisions of the foregoing paragraph shall not apply to
(i) transactions between or among the Company and any of its Wholly Owned
Restricted Subsidiaries or between or among Wholly Owned Restricted
Subsidiaries of the Company, (ii) any Restricted Payment or Permitted Payment
permitted to be made under Section 5.01 hereof, (iii) customary directors fees
and indemnities, (iv) the purchase of any CMBS, Mortgage Loans or servicing
rights for Mortgage Loans by the Company or any of its Restricted Subsidiaries
in the ordinary course of the Company's or such Restricted Subsidiary's
business, (v) any issuance of securities or other payments, compensation,
benefits, awards or grants in cash, securities or otherwise pursuant to, or
the funding of, employment arrangements, stock options and stock ownership
plans approved by the Board of Directors of the Company, (vi) the grant of
stock options or similar rights to employees and directors of the Company or
any of its Restricted Subsidiaries pursuant to plans approved by the Board of
Directors of the Company and (vii) the payment of advisory and subadvisory
fees to the Company or any Restricted Subsidiary from American Insured
Mortgage Investors, American Insured Mortgage Investors L.P.-Series 85,
American Insured Mortgage Investors L.P.-Series 86 and American Insured
Mortgage Investors L.P.-Series 88.
SECTION 5.04. LIMITATION ON THE ISSUANCE OR SALE OF CAPITAL STOCK. The
Company will not permit any Restricted Subsidiary to issue any Capital Stock
(other than to the Company or a Restricted Subsidiary) and shall not permit
any Person (other than the Company or a Restricted Subsidiary) to own any
Capital Stock of any Restricted Subsidiary; provided, however, that the
foregoing shall not prohibit (a) the issuance and sale of all, but not less
than all, of the issued and outstanding Capital Stock of any Restricted
Subsidiary owned by the Company or any Restricted Subsidiary in accordance
with the provisions of the Indenture or (b) Capital Stock of a Restricted
Subsidiary issued and outstanding on the Issue Date and held by Persons other
than the Company or any Restricted Subsidiary or (c) the issuance or sale of
Capital Stock of a Restricted Subsidiary to Persons other than the Company or
a Restricted Subsidiary in the event that, upon the advice of counsel, the
Board of Directors of the Company determines that such issuance or sale is
necessary or advisable to maintain the Company's status as a REIT, provided,
however, that the Company or a Restricted Subsidiary continues to own at least
95 percent of the economic interest of such Restricted Subsidiary.
SECTION 5.05. LIMITATION ON THE PLEDGE OF CAPITAL STOCK. The Company
will not, directly or indirectly, create, incur, assume or suffer to exist any
Lien of any kind on or with respect to any of the Capital Stock of any
Restricted Subsidiary, whether owned on the Issue Date or thereafter acquired,
or any income, profits or proceeds therefrom, or assign or otherwise convey
any right to receive income thereon without making effective provision for
securing the Notes (x) equally and ratably with such Debt as to such property
for so long as such Debt will be so secured or (y) in the event such Debt is
Subordinated Indebtedness, prior to such Debt as to such property for so long
as such Debt will be so secured.
SECTION 5.06. BUSINESS ACTIVITIES. The Company will not, and will not
permit any Restricted Subsidiary to, engage in any business, except as set
forth in clause (k) of the definition of "Permitted Investments," other than
in the usual and ordinary course of the commercial mortgage business and other
than which is consistent with the industry standards in the commercial
mortgage industry.
SECTION 5.07. PURCHASE OF NOTES UPON A CHANGE OF CONTROL. (a) If a
Change of Control shall occur at any time, then each Holder of Notes shall
have the right to require that the Company purchase such Holder's Notes, in
whole or in part in integral multiples of $1,000, at a purchase price (the
"Change of Control Purchase Price") in cash in an amount equal to 101 percent
of the principal amount thereof, plus accrued interest, if any, to the date of
purchase (the "Change of Control Purchase Date"), pursuant to the offer
described below (the "Change of Control Offer") and the other procedures set
forth in this Section 5.07.
(b) Within 30 calendar days of the date of any Change of Control, the
Company, or the Trustee at the request and expense of the Company, shall send
to each Holder by first class mail, postage prepaid, a notice prepared by the
Company stating:
(i) that a Change of Control has occurred and a Change of Control offer
is being made pursuant to this Section 5.07, and that all Notes
that are timely tendered will be accepted for payment;
(ii) the Change of Control Purchase Price and the Change of Control
Purchase Date, which date shall be a date occurring no earlier than
30 calendar days nor later than 60 calendar days subsequent to the
date such notice is mailed;
(iii) that any Notes or portions thereof not tendered or accepted for
payment will continue to accrue interest;
(iv) that, unless the Company defaults in the payment of the Change of
Control Purchase Price with respect thereto, all Notes or portions
thereof accepted for payment pursuant to the Change of Control
Offer shall cease to accrue interest, from and after the Change of
Control Purchase Date;
(v) that any Holder electing to have any Notes or portions thereof
purchased pursuant to a Change of Control Offer will be required to
surrender such Notes, with the form entitled "Option of Holder to
Elect Purchase" on the reverse of such Notes completed, to the
Paying Agent at the address specified in the notice, prior to the
close of business on the third Business Day preceding the Change of
Control Purchase Date;(vi) that any Holder shall be entitled to
withdraw such election if the Paying Agent receives, not later
than
the close of business on the second Business Day preceding the
Change of Control Purchase Date, a telegram, telex, facsimile
transmission or letter, setting forth the name of the Holder, the
principal amount of Notes delivered for purchase, and a statement
that such Holder is withdrawing such Holder's election to have such
Notes or portions thereof purchased pursuant to the Change of
Control Offer;
(vii) that any Holder electing to have Notes purchased pursuant to the
Change of Control Offer must specify the principal amount that is
being tendered for purchase, which principal amount at maturity
must be $1,000 or an integral multiple thereof;
(viii) that any Holder whose Notes are being purchased only in part will
be issued new Notes equal in principal amount to the unpurchased
portion of the Note or Notes surrendered, which unpurchased portion
will be equal in principal amount to $1,000 or an integral multiple
thereof; and(ix) any other information necessary to enable any
Holder to tender Notes and to have such Notes purchased pursuant to
this Section 5.07.
(c) On the Change of Control Purchase Date, the Company shall
(i) accept for payment any Notes or portions thereof properly
tendered pursuant to the Change of Control Offer;
(ii) irrevocably deposit with the Paying Agent, by 10:00 a.m., New
York City time, on such date, in immediately available funds, an
amount equal to the Change of Control Purchase Price in respect
of all Notes or portions thereof so accepted; and (iii) deliver,
or cause to be delivered, to the Trustee the Notes so accepted
together with an Officers' Certificate listing the Notes or
portions thereof tendered to the Company and accepted for
payment. The Paying Agent shall promptly send by first class
mail, postage prepaid, to each Holder of Notes or portions
thereof so accepted for payment, payment in the amount equal to
the Change of Control Purchase Price for such Notes or portions
thereof. The Company shall publicly announce the results of the
Change of Control Offer on or as soon as practicable after the
Change of Control Purchase Date.
(d) Upon surrender and cancellation of a Note that is purchased in part
pursuant to the Change of Control Offer, the Company shall promptly issue and
the Trustee shall authenticate and deliver to the surrendering Holder of such
Note, a new Note equal in principal amount to the unpurchased portion of such
surrendered Note; provided that each such new Note shall be in a principal
amount at maturity of $1,000 or an integral multiple thereof.
(e) The Company shall comply with the requirements of Section 14(e)
under the Exchange Act and any other securities laws or regulations, to the
extent such laws and regulations are applicable, in connection with the
purchase of Notes pursuant to a Change of Control Offer.
SECTION 5.08. REPORTS. The Company will file on a timely basis with the
Securities and Exchange Commission (the "Commission"), to the extent such
filings are accepted by the Commission and whether or not the Company has a
class of securities registered under the Exchange Act, the annual reports,
quarterly reports and other documents that the Company would be required to
file if it were subject to Section 13 or 15 of the Exchange Act. The Company
will also be required (a) to file with the Trustee, and provide to each Holder
of Notes, without cost to such Holder, copies of such reports and documents
within 30 days after the date on which the Company files such reports and
documents with the Commission or the date on which the Company would be
required to file such reports and documents if the Company were so required
and (b) if filing such reports and documents with the Commission is not
accepted by the Commission or is prohibited under the Exchange Act, to supply
at the Company's cost copies of such reports and documents to any prospective
holder of Notes promptly upon written request.
SECTION 5.09. WAIVER OF COVENANTS. The Company may omit in any
particular instance to comply with any term, provision or condition set forth
in Sections 5.01 to 5.08, inclusive, if before or after the time for such
compliance the Holders of at least a majority in principal amount of the
Notes, by act of such Holders, either waive such compliance in such instance
or generally waive compliance with such covenant or condition, but no such
waiver shall extend to or affect such covenant or condition except to the
extent so expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in respect of any
such term, provision or condition shall remain in full force and
effect.
ARTICLE SIX
RESTRICTED AND UNRESTRICTED SUBSIDIARIES
SECTION 6.01. DESIGNATION OF UNRESTRICTED SUBSIDIARIES. (a) The Company
may designate a Subsidiary (including a newly formed or newly acquired
Subsidiary) of the Company or any of its Restricted Subsidiaries as an
Unrestricted Subsidiary if such Subsidiary (a "Designation") if (i) no Default
shall have occurred and be continuing at the time of or after giving effect to
such Designation, (ii) (A) such Subsidiary has total assets of $1,000 or less
or (B) such Subsidiary has total assets of more than $1,000 and an Investment
in such Subsidiary in an amount equal to the fair market value of such
Subsidiary (the "Designation Amount") would then be permitted under Section
5.01(a) hereof and (iii) the Company would be permitted to incur $1.00 of
additional Debt (other than Permitted Indebtedness) pursuant to Section 5.02
at the time of and after giving effect to such Designation. Unless so
designated as an Unrestricted Subsidiary, any Person that becomes a Subsidiary
of the Company or any of its Restricted Subsidiaries shall be classified as a
Restricted Subsidiary thereof. In the event of any such Designation in
accordance with this Section 6.01(a), the Company shall be deemed to have made
an Investment constituting a Restricted Payment pursuant to Section 5.01 for
all purposes of the Indenture in the Designation Amount.
(b) The Company shall not, and shall not permit any Restricted
Subsidiary to, at any time (x) provide direct or indirect credit support for
or a guarantee of any Debt of any Unrestricted Subsidiary (including of any
undertaking, agreement or instrument evidencing such Debt), (y) be directly or
indirectly liable for any Debt of any Unrestricted Subsidiary or (z) be
directly or indirectly liable for any Debt which provides that the holder
thereof may (upon notice, lapse of time or both) declare a default thereon or
cause the payment thereof to be accelerated or payable prior to its final
scheduled maturity upon the occurrence of a default with respect to any Debt
of any Unrestricted Subsidiary (including any right to take enforcement action
against such Unrestricted Subsidiary), except, in the case of clause (x) or
(y), to the extent permitted under Sections 5.01, 5.02 and 5.03.
SECTION 6.02. REVOCATION OF UNRESTRICTED SUBSIDIARIES. The Company may
revoke any Designation of a Subsidiary as an Unrestricted Subsidiary (a
"Revocation"), whereupon such Subsidiary shall then constitute a Restricted
Subsidiary, if:
(i) no Default shall have occurred and be continuing at the time of
and
after giving effect to such Revocation; and
(ii) all Liens and Debt of such Unrestricted Subsidiary outstanding
immediately following such Revocation would, if incurred at such
time,
have been permitted to be incurred for purposes of the Indenture.
SECTION 6.03. REDESIGNATION OF SUBSIDIARIES. The designation of a
Subsidiary as an Unrestricted Subsidiary or the Revocation of an Unrestricted
Subsidiary in compliance with Sections 6.01 and 6.02 shall be made by the
Board of Directors pursuant to a Board Resolution, which, together with an
Officer's Certificate certifying compliance with this Article Six, shall be
delivered to the Trustee and
shall be effective as of the date specified in such Board Resolution, (which
shall not be prior to the date such Board Resolution is delivered to the
Trustee).
ARTICLE SEVEN
MERGER, CONSOLIDATION OR SALE OF ASSETS
Pursuant to Section 301(16) of the Indenture, so long as any of the
Notes are outstanding, the following provision shall replace Section 801 of
the Indenture for purposes of the Notes:
"The Company will not, in a single transaction or through a series of
related transactions, consolidate with or merge with or into any other Person
or sell, assign, convey, transfer, lease or otherwise dispose of all or
substantially all of its properties and assets to any other Person or Persons,
or permit any Restricted Subsidiary to enter into any such transaction or
series of transactions, if such transaction or series of transactions, in the
aggregate, would result in the sale, assignment, conveyance, transfer, lease
or other disposition of all or substantially all of the properties and assets
of the Company and its Restricted Subsidiaries on a consolidated basis to any
other Person or Persons, unless at the time and after giving effect thereto
(a) either (i) if the transaction is a consolidation or merger, the Company
will be the continuing corporation or (ii) the Person (if other than the
Company) formed by such consolidation or into which the Company or such
Restricted Subsidiary is merged or the Person that acquires by sale,
assignment, conveyance, transfer, lease or disposition all or substantially
all the properties and assets of the Company and its Restricted Subsidiaries
on a consolidated basis (the "Surviving Entity") (A) will be a corporation
duly organized and validly existing under the laws of the United States of
America, any state thereof or the District of Columbia and (B) will expressly
assume, by a supplemental indenture, in form and substance satisfactory to the
Trustee, the Company's obligation for the due and punctual payment of the
principal of, premium, if any, and interest on all the Notes and the
performance and observance of every covenant of the Indenture or the Notes on
the part of the Company to be performed or observed; (b) immediately before
and immediately after giving effect to such transaction or series of
transactions on a pro forma basis (and treating any obligation of the Company
or any Restricted Subsidiary incurred in connection with or as a result of
such transaction or series of transactions as having been incurred at the time
of such transaction), no Default or Event of Default will have occurred and be
continuing, and (c) immediately after giving effect to such transaction or
series of transactions on a pro forma basis (on the assumption that the
transaction or series of transactions occurred on the first day of the four-
quarter period immediately prior to the consummation of such transaction or
series of transactions with the appropriate adjustments with respect to the
transaction or series of transactions being included in such pro forma
calculation), the Company (or the Surviving Entity if the Company is not the
continuing obligor under the Indenture) could incur at least $1.00 of
additional Debt (other than Permitted Indebtedness) under Section 5.02 hereof.
Neither the Company nor any of its Restricted Subsidiaries may merge with or
into, or be consolidated with, an Unrestricted Subsidiary of the Company,
except to the extent such Unrestricted Subsidiary has been designated a
Restricted Subsidiary, as provided in the Indenture, in advance of or in
connection with such transaction."
ARTICLE EIGHT
MISCELLANEOUS
SECTION 8.01. APPLICATION OF FIRST SUPPLEMENTAL INDENTURE. Each and
every term and condition contained in the First Supplemental Indenture that
modifies, amends or supplements the terms and conditions of the Indenture
shall apply only to the Notes created hereby and not to any future series of
Securities established under the Indenture.
SECTION 8.02. BENEFITS OF FIRST SUPPLEMENTAL INDENTURE. Nothing
contained in this First Supplemental Indenture shall or shall be construed to
confer upon any person other than a Holder of the Notes, the Company and the
Trustee any right or interest to avail itself or himself, as the case may be,
of any benefit under any provision of the In1denture or this First
Supplemental Indenture.
SECTION 8.03. DEFINED TERMS. All capitalized terms which are used
herein and not otherwise defined herein are defined in the Indenture and are
used herein with the same meanings as Indenture.
SECTION 8.04. EFFECTIVE DATE. This First Supplemental Indenture shall
be effective as of the date first above written and upon the execution and
delivery hereof by each of the parties hereto.
SECTION 8.05. GOVERNING LAW. This First Supplemental Indenture shall be
governed by, and construed in accordance with, the laws of the State of New
York.
SECTION 8.06. COUNTERPARTS. This First Supplemental Indenture may be
executed in any number of counterparts, each of which so executed shall be
deemed to be an original, but all such counterparts shall together constitute
but one and the same instrument.
SECTION 8.07. SATISFACTION AND DISCHARGE. This Supplemental Indenture
shall cease to be of further force and effect upon compliance with Section 401
of the Indenture with respect to the Notes created hereby.
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed by their respective officers
hereunto duly authorized, all as of the day and year first above written.
CRIIMI MAE INC.
Dated: November 21, 1997 By: /s/ H. Xxxxxxx Xxxxxxxxxx
---------------------------
Name: H. Xxxxxxx Xxxxxxxxxx
Title: President
STATE STREET BANK AND TRUST
COMPANY
as Trustee
Dated: November 21, 1997 By: /s/ Xxxxx Xxxxxxxx
------------------------
Name: Xxxxx Xxxxxxxx
Title:Vice President
ACKNOWLEDGMENT
STATE OF )
) ss:
COUNTY OF )
On the day of , 1997, before me personally came
----------------------------------- to me known, who, being by me duly sworn,
did depose and say that he is of CRIIMI MAE INC.,
----------------------------
one of the parties described in and which executed the foregoing instrument,
and that he signed his name thereto by authority of the Board of Directors.
{Notarial Seal}
----------------------------
Notary Public
COMMISSION EXPIRES
ACKNOWLEDGMENT
STATE OF )
) ss:
COUNTY OF )
On the day of , 1997, before me personally came
----------------------------------- to me known, who, being by me duly sworn,
did depose and say that he is of CRIIMI MAE INC.,
----------------------------
one of the parties described in and which executed the foregoing instrument,
and that he signed his name thereto by authority of the Board of Directors.
{Notarial Seal}
----------------------------
Notary Public
COMMISSION EXPIRES
STATE OF ) ss:
COUNTY OF )
On the day of November, 1997, before me personally came
, to me known, who, being by me duly sworn, did
-------------------------
depose and say that he/she is a of STATE STREET BANK AND TRUST
--------------
COMPANY, one of the parties described in and which executed the foregoing
instrument, and that he/she signed his/her name thereto by authority of the
Board of Directors.
[Notarial Seal]
-----------------------------
Notary Public
Commission Expires
EXHIBIT A
CRIIMI MAE INC.
9 1/8 percent Senior Notes due 2002
No. 001 Principal Amount
CUSIP No. 000000XX0 $100,000,000
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC AND ANY PAYMENT IS
MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC, ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
UNLESS AND UNTIL THIS CERTIFICATE IS EXCHANGED IN WHOLE OR IN PART FOR
NOTES IN CERTIFICATED FORM, THIS CERTIFICATE MAY NOT BE TRANSFERRED EXCEPT AS
A WHOLE BY DTC TO A NOMINEE THEREOF OR BY A NOMINEE THEREOF TO DTC OR ANOTHER
NOMINEE OF DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR OF DTC OR A
NOMINEE OF SUCH SUCCESSOR.
CRIIMI MAE Inc., a Maryland corporation (the "Issuer," which term
includes any successor under the Indenture hereinafter referred to), for value
received, hereby promises to pay to Cede & Co. or registered assigns, the
principal sum of One Hundred Million Dollars on December 1, 2002 (the
"Maturity Date"), and to pay interest thereon from November 21, 1997 (or from
the most recent Interest Payment Date to which interest has been paid or duly
provided for), semiannually in arrears on June 1 and December 1 of each year
(each, an "Interest Payment Date"), commencing on June 1, 1998, and on the
Maturity Date, at a rate of 9 1/8 percent per annum, until payment of said
principal sum has been made or duly provided for.
The interest so payable and punctually paid or duly provided for on an
Interest Payment Date and on the Maturity Date will be paid to the Holder in
whose name this Note (or one or more predecessor Notes) is registered at the
close of business on the "Regular Record Date" for such payment, which will be
the date 15 calendar days (regardless of whether such day is a Business Day
(as defined below)) next preceding such payment date or the Maturity Date, as
the case may be. Any interest not so punctually paid or duly provided for
shall forthwith cease to be payable to the Holder on such Regular Record Date,
and shall be paid to the Holder in whose name this Note (or one or more
predecessor Notes) is registered at the close of business on a subsequent
record date for the payment of such defaulted interest (which shall not be
less than five Business Days prior to the date of the payment of such
defaulted interest) established by notice given by mail by or on behalf of the
Issuer to the Holders of the Notes not less than 15 days preceding such
subsequent record date. Interest on this Note will be computed on the basis
of a 360-day year of twelve 30-day months.
The principal of this Note payable on the Maturity Date will be paid
against presentation and surrender of this Note at the office or agency of the
Issuer maintained for that purpose in Boston, Massachusetts with a drop
facility maintained in New York, New York. The Issuer hereby initially
designates the Corporate Trust Office of the Trustee in Boston, Massachusetts
as the office to be maintained by it where Notes may be presented for payment,
registration of transfer, or exchange and where notices or demands to or upon
the Issuer in respect of the Notes or the Indenture referred to on the reverse
hereof may be served.
Interest payable on this Note on any Interest Payment Date and on the
Maturity Date, as the case may be, will be the amount of interest accrued
during the applicable Interest Period (as defined below).
An "Interest Period" is each period from and including the immediately
preceding Interest Payment Date (or from and including November 21, 1997, in
the case of the initial Interest Period) to but excluding the applicable
Interest Payment Date or the Maturity Date, as the case may be. If any
Interest Payment Date other than the Maturity Date would otherwise be a day
that is not a Business Day, any amounts payable on such Interest Payment Date
will be paid on the succeeding Business Day with the same force and effect as
if it were paid on the date such payment was due. If the Maturity Date falls
on a day that is not a Business Day, principal and interest payable on the
Maturity Date will be paid on the succeeding Business Day with the same force
and effect as if paid on the date such payment was due, and no interest will
accrue on the amount so payable for the period from and after the Maturity
Date. "Business Day" means any day, other than a Saturday or a Sunday on
which banking institutions in New York, New York or Boston, Massachusetts are
not required or authorized by law or executive order to close.
Payments of principal and interest in respect of this Note will be made
by U.S. dollar check or by wire transfer (such a wire transfer to be made only
to a Holder of an aggregate principal amount of Securities in excess of
$2,000,000, and only if such Holder shall have furnished wire instructions in
writing to the Trustee no later than 15 days prior to the relevant payment
date and acknowledged that a wire transfer fee shall be payable) of
immediately available funds in such coin or currency of the United States of
America as at the time of payment is legal tender for the payment of public
and private debts.
Reference is made to the further provisions of this Note set forth on the
reverse hereof. Such further provisions shall for all purposes have the same
effect as though fully set forth at this place. Capitalized terms used
herein, including on the reverse hereof, and not defined herein or on the
reverse hereof shall have the respective meanings given to such terms in the
Indenture.
This Note shall not be entitled to the benefits of the Indenture referred
to on the reverse hereof or be valid or become obligatory for any purpose
until the certificate of authentication hereon shall have been signed by the
Trustee under such Indenture.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed
manually or by facsimile by its duly authorized officers.
Dated: November 21, 1997 CRIIMI MAE INC., as Issuer
By:
-----------------------------------
Its:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein referred to
in the within-mentioned Indenture.
STATE STREET BANK AND TRUST COMPANY
By:
-----------------------------------
Authorized Officer
[REVERSE OF NOTE]
CRIIMI MAE INC.
9 1/8 percent Senior Notes due 2002
This security is one of a duly authorized issue of debentures, notes, bonds,
or other evidences of indebtedness of the Issuer (hereinafter called the
"Securities") of the series hereinafter specified, all issued or to be issued
under and pursuant to an Indenture dated as of November 21, 1997 as
supplemented by the First Supplemental Indenture dated as of November 21,
1997 (as so supplemented, herein called the "Indenture"), duly executed and
delivered by the Issuer to State Street Bank and Trust Company, as Trustee
(herein called the "Trustee," which term includes any successor trustee under
the Indenture with respect to the series of Securities of which this Note is a
part), to which Indenture and all Indentures supplemental thereto reference is
hereby made for a description of the rights, limitations of rights,
obligations, duties, and immunities thereunder of the Trustee, the Issuer, and
the Holders of the Securities, and of the terms upon which the Securities are,
and are to be, authenticated and delivered. The Securities may be issued in
one or more series, which different series may be issued in various aggregate
principal amounts, may mature at different times, may bear interest (if any)
at different rates, may be subject to different redemption provisions (if
any), and may otherwise vary as provided in the Indenture. This Security is
one of a series designated as the 9 1/8 percent Senior Notes due 2002 of the
Issuer
(the "Notes"), limited in aggregate principal amount to $100,000,000.
In case an Event of Default with respect to the 9 1/8 percent Senior Notes due
2002
shall have occurred and be continuing, the principal hereof and Make-Whole
Amount (if any) may be declared, and upon such declaration shall become, due
and payable, in the manner, with the effect, and subject to the conditions
provided in the Indenture.
The Issuer may redeem the Notes, at any time in whole or from time to time in
part, at the election of the Issuer, at a redemption price equal to the sum of
(i) the principal amount of the Notes being redeemed plus accrued interest
thereon to the Redemption Date and (ii) the Make-Whole Amount, if any, with
respect to such Notes (the "Redemption Price"). Notice of any optional
redemption of any Notes will be given to Holders at their addresses, as shown
in the security register for the Notes, not more than 60 nor less than 30 days
prior to the date fixed for redemption. The notice of redemption will
specify, among other items, the Redemption Price and the principal amount of
the Securities held by such Holder to be redeemed. If less than all the Notes
are to be redeemed at the option of the Issuer, the Issuer will notify
the Trustee at least 45 days prior to giving notice of redemption to the
Holders (or such shorter period as is satisfactory to the Trustee) of the
aggregate principal amount of Notes to be redeemed and their redemption date.
The Trustee shall select, in such manner as it shall deem fair and
appropriate, Notes to be redeemed in whole or in part.
The covenants set forth in Article Five of the First Supplemental
Indenture shall be fully applicable to the Notes. The First Supplemental
Indenture provides that, subject to certain conditions, if a Change of Control
(as defined in the First Supplemental Indenture) occurs, the Issuer shall be
required to make a Change of Control Offer (as defined in the First
Supplemental Indenture) for all or a specified portion of the Notes.
The Indenture contains provisions permitting the Issuer and the Trustee,
with the consent of the Holders of not less than a majority of the aggregate
principal amount of the Securities at the time Outstanding of all series to be
affected (voting as one class), evidenced as provided in the Indenture, to
execute supplemental Indentures adding any provisions to or changing in any
manner or eliminating any of the provisions of the Indenture or of any
supplemental Indenture or modifying in any manner the rights of the Holders of
the Securities of each series; provided, however, that no such supplemental
Indenture shall, without the consent of the Holder of each Security so
affected, (i) change the final maturity of any Security, or reduce the
principal amount thereof or any premium thereon, or reduce the rate or extend
the time of payment of any interest thereon, or impair or affect the rights of
any Holder to institute suit for the payment on any Security, or (ii) reduce
the aforesaid percentage of Securities, the Holders of which are required to
consent to any such supplemental Indenture, or (iii) reduce the percentage of
Securities, the Holders of which are required to consent to any waiver of
compliance with certain provisions of the Indenture or any waiver of certain
defaults thereunder. It is also provided in the Indenture that, with respect
to certain defaults or Events of Default regarding the Securities of any
series, the Holders of a majority in aggregate principal amount outstanding of
the Securities of such series (or, in the case of certain defaults or Events
of Default, all series of Securities) may on behalf of the Holders of all the
Securities of such series (or all of the Securities, as the case may be) waive
any such past default or Event of Default and its consequences, prior to any
declaration accelerating the maturity of such Securities, or, subject to
certain conditions, may rescind a declaration of acceleration and its
consequences with respect to such Securities. The preceding sentence shall
not, however, apply to a default in the payment of the principal of or
premium, if any, or interest on any of the Securities. Any such consent or
waiver by the Holder of this Security (unless revoked as provided in the
Indenture) shall be conclusive and binding upon such Holder and upon all
future Holders and owners of this Security and any securities that may be
issued in exchange or substitution herefor, irrespective of whether or not any
notation thereof is made upon this Security or such other securities.
As provided in and subject to the provisions of the Indenture, the Holder
of this Security shall not have the right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless (a) such Holder shall have previously
given the Trustee written notice of a continuing Event of Default, (b) the
Holders of not less than 25 percent in aggregate principal amount of the
Securities
Outstanding shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default as Trustee and offered the
Trustee reasonable indemnity and the Trustee shall not have received from the
Holders of a majority in aggregate principal amount of the Securities
Outstanding a direction inconsistent with such request, and (c) the Trustee
shall have failed to institute any such proceeding, for 60 days after receipt
of such notice, request and offer of indemnity. The foregoing shall not apply
to any suit instituted by the Holder of this Security for the enforcement
of any payment of principal hereof, Make-Whole Amount, if any, or interest
hereon on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and any Make-Whole Amount
and interest on this Security in the manner, at the respective times, at the
rate and in the coin or currency herein prescribed.
This Security is issuable only in registered form without coupons in
denominations of $1,000 and integral multiples thereof. Securities may be
exchanged for a like aggregate principal amount of Securities of this series
of other authorized denominations at the office or agency of the Issuer in
Boston, Massachusetts, in the manner and subject to the limitations provided
in the Indenture, but without the payment of any service charge except for any
tax or other governmental charge imposed in connection therewith.
This Security is not subject to a sinking fund requirement.
Upon due presentment for registration of transfer of Securities at the
office or agency of the Issuer in Boston, Massachusetts, a new Security or
Securities of the same series of authorized denominations in an equal
aggregate principal amount will be issued to the transferee in exchange
therefor, subject to the limitations provided in the Indenture, without charge
except for any tax or other governmental charge imposed in connection
therewith.
No recourse under or upon any obligation, covenant or agreement contained
in the Indenture, in any Security or coupon appertaining thereto, or because
of any indebtedness evidenced hereby or thereby (including, without
limitation, any obligation or indebtedness relating to the principal of, or
premium or Make-Whole Amount, if any, interest or any other amounts due, or
claimed to be due, on this Security), or for any claim based thereon or
otherwise in respect thereof, shall be had against any promoter, as such, or
against any past, present or future shareholder, officer or director, as such,
of the Issuer or of any successor, either directly or through the Issuer or
any successor, under any rule of law, statute or constitutional provision or
by the enforcement of any assessment or by any legal or equitable proceeding
or otherwise, all such liability being expressly waived and released by the
acceptance hereof and as part of the consideration for the issue hereof.
Prior to due presentation of a Security for registration of transfer, the
Issuer, the Trustee, and any authorized agent of the Issuer or the Trustee may
deem and treat the Person in whose name this Security is registered as the
absolute owner of this Security (whether or not this Security shall be overdue
and notwithstanding any notation of ownership or other writing hereon), for
the purpose of receiving payment of, or on account of, the principal hereof
and Make-Whole Amount, if any, and subject to the provisions herein and on the
face hereof; interest hereon, and for all other purposes, and neither the
Issuer nor the Trustee nor any authorized agent of the Issuer or the Trustee
shall be affected by any notice to the contrary.
The Indenture and this Security shall be governed by the law of the State
of New York, United States of America.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused "CUSIP" numbers to
be printed on the Securities of this series as a convenience to the Holders of
such Securities. No representation is made as to the correctness or accuracy
of such CUSIP numbers as printed on the Securities, and reliance may placed
only on the other identification numbers printed hereon.
ASSIGNMENT FORM AND CERTIFICATE OF TRANSFER
To assign this Security fill in the form below:
(I) or (we) assign and transfer this Security to
--------------------------------------------------------
(Insert assignee's social security or tax identification number, if any)
----------------------------------
----------------------------------
----------------------------------
(Print or type assignee's name, address and zip code)
Your signature:
---------------------------------
(Sign exactly as your name appears on the other side of this Security)
Date:
----------------------------
Signature Guarantee:
-----------------------------
Participant in a recognized Signature
Guarantee Medallion Program (or other signature guarantor program reasonably
acceptable to the Trustee.)
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Issuer pursuant
to Section 5.07 of the First Supplemental Indenture, check the box:
If you want to elect to have only a part of this Note purchased by the Issuer
pursuant to Section 5.07 of the First Supplemental Indenture, state the
amount:
$
--------------------
Dated: Your signature:
---------------- ----------------------------
(sign exactly as your name appears on the other side of this Security)
Signature Guarantee:
------------------------------
Participant in a recognized Signature
Guarantee Medallion Program (or other
signature guarantor program reasonably
acceptable to the Trustee.)
Exhibit B
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(1) The Company has been duly incorporated and is validly existing as
a
corporation in good standing under the laws of the State of Maryland.
(2) The Company has corporate power and authority to own, lease and
operate
its properties and to conduct its business as described in the Prospectus and
to
enter into and perform its obligations under, or as contemplated under, the
Underwriting Agreement and the applicable Terms Agreement.
(3) The Company is duly qualified as a foreign corporation to
transact
business and is in good standing in each jurisdiction identified in Exhibit B
hereto.
(4) Each Subsidiary has been duly incorporated or formed and is
validly existing as a corporation or limited partnership in good standing
under the
laws of the jurisdiction of its incorporation or formation, has corporate or
limited partnership power and authority to own, lease and operate its
properties and
to conduct its business as described in the Prospectus and is duly qualified
as a
foreign corporation or limited partnership to transact business and is in good
standing in each jurisdiction identified in Exhibit B hereto. Except as
otherwise
stated in the Registration Statement and the Prospectus, all of the issued and
outstanding capital stock or partnership interest of each Subsidiary has been
duly
authorized and is validly issued, fully paid and non-assessable and, to the
best of
our knowledge, is owned by the Company, directly or through subsidiaries, free
and
clear of any perfected security interest, mortgage, pledge, lien, encumbrance,
claim or equity. None of the outstanding shares of capital stock or
partnership
interest of any Subsidiary was issued in violation of preemptive or, to our
knowledge, any other similar rights of any securityholder of such Subsidiary.
(5) The authorized, issued and outstanding shares of capital stock of
the
Company is as set forth in the column entitled "Actual" under the caption
"Capitalization" (except for subsequent issuances thereof, if any,
contemplated
under the Underwriting Agreement and the Terms Agreement, pursuant to
reservations,
agreements or employee benefit plans referred to in the Prospectus or pursuant
to
the exercise of convertible securities or options referred to in the
Prospectus).
Such shares of capital stock have been duly authorized and validly
issued by
the Company and are fully paid and non-assessable, and none of such shares of
capital stock were issued in violation of preemptive or, to our knowledge, any
other similar rights of any securityholder of the Company.
(6) The Underwriting Agreement and the Terms Agreement have been duly
authorized, executed and delivered by the Company.
(7) The Underwritten Securities have been duly authorized by the
Company
for issuance and sale pursuant to the Underwriting Agreement and the
Terms Agreement. The Underwritten Securities, when issued and delivered by
the
Company pursuant to the Underwriting Agreement and the Terms Agreement against
payment of the consideration therefor specified in such Terms Agreement, will
be
validly issued, fully paid and non-assessable and will not be subject to any
statutory preemptive or, to our knowledge, any other similar rights of any
securityholder of the Company. No holder of the Underwritten Securities is or
will
be subject to personal liability by reason of being such a holder. The form
of
certificate used to evidence the Underwritten Securities is in due and proper
form
and complies with the applicable statutory requirements of the Maryland
General
Corporation Law, with any applicable requirements of the charter or bylaws of
the
Company and with the requirements of the New York Stock Exchange.
(8) The Underwritten Securities have been duly authorized by the
Company
for issuance and sale pursuant to the Underwriting Agreement and the
applicable
Terms Agreement. The applicable Preferred Stock, when issued and delivered by
the
Company pursuant to the Underwriting Agreement and such Terms Agreement
against
payment of the consideration specified in such Terms Agreement, will be
validly
issued, fully paid and non-assessable and will not be subject to any statutory
preemptive or, to our knowledge, any other similar rights of any
securityholder of
the Company. No holder of such Preferred Stock is or will be subject to
personal
liability by reason of being such a holder. The form of certificate used to
evidence the Preferred Stock is in valid form and complies with the applicable
statutory requirements, with any applicable requirements of the charter or
by-laws
of the Company and with the requirements of the New York Stock Exchange. The
applicable Articles Supplementary for such Preferred Stock are in full force
and
effect.
(9) The Underwritten Securities have been duly authorized by the
Company
for issuance and sale pursuant to the Underwriting Agreement and the
applicable
Terms Agreement. The Underwritten Securities, when issued and authenticated
in the
manner provided for in the applicable Indenture and delivered against payment
of
the consideration therefor specified in such Terms Agreement, will constitute
valid
and legally binding obligations of the Company, enforceable against the
Company in
accordance with their terms, except as the enforcement thereof may be limited
by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating
to or affecting creditors' rights generally or by general equitable
principles, and
except further as enforcement thereof may be limited by (A) requirements that
a
claim with respect to any Debt Securities denominated other than in U.S.
dollars
or a foreign or composite currency judgment in respect of such claim) be
converted
into U.S. dollars at a rate of exchange prevailing on a date determined
pursuant to
applicable law or (B) governmental authority to limit, delay or prohibit the
making
of payments outside the United States. The Underwritten Securities are in the
form
contemplated by, and each registered holder thereof is entitled to the
benefits of,
the applicable Indenture.
(10) The Underwritten Securities have been duly authorized by the
Company
for issuance and sale pursuant to the Underwriting Agreement and the
applicable
Terms Agreement. The Underwritten Securities, when issued and authenticated
in the
manner provided for in the applicable Warrant Agreement and delivered against
payment of the consideration therefor specified in such Terms Agreement,
will
constitute valid and legally binding obligations of the Company, entitled to
the
benefits provided by such Warrant Agreement and enforceable against the
Company in
accordance with their terms, except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating
to or affecting creditors' rights generally or by general equitable
principles.
(11) Each applicable Warrant Agreement has been duly authorized,
executed
and delivered by the Company and (assuming due authorization, execution and
delivery thereof by the applicable Warrant Agent) constitutes a valid and
legally
binding agreement of the Company, enforceable against the Company in
accordance
with its terms, except as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating to or
affecting creditors' rights generally or by general equitable principles.
(12) The applicable Indenture has been duly authorized, executed and
delivered by the Company and (assuming due authorization, execution and
delivery
thereof by the applicable Trustee) constitutes a valid and legally binding
agreement of the Company, enforceable against the Company in accordance with
its
terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency,
reorganization, moratorium or other similar laws relating to or affecting
creditors' rights generally or by general equitable principles.
(13) The Underlying Securities have been duly authorized and reserved
for
issuance by the Company upon exercise of the Common Stock, Preferred Stock,
Debt
Securities or Warrants. The Underlying Securities, when issued upon such
conversion, will be validly issued, fully paid and non-assessable and will not
be
subject to preemptive or other similar rights of any securityholder of the
Company.
No holder of the Underlying Securities is or will be subject to personal
liability
by reason of being such a holder. The Underlying Securities have been duly
authorized for issuance by the Company upon conversion of the related
Preferred
tock. The Underlying Securities, when issued and authenticated in the manner
provided for in the applicable Indenture and delivered in accordance with the
terms
of the related Preferred Stock will constitute valid and legally binding
obligations of the Company, enforceable against the Company in accordance with
their terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating to or
affecting creditors' rights generally or by general equitable principles, and
except further as enforcement thereof may be limited by (A) requirements that
a
claim with respect to any Debt Securities denominated other than in U.S.
dollars
(or a foreign or composite currency judgment in respect of such claim) be
converted
into U.S. dollars at a rate of exchange prevailing on a date determined
pursuant to
applicable law or (B) governmental authority to limit, delay or prohibit the
making
of payments outside the United States.
(14) The Underwritten Securities being sold pursuant to the Terms
Agreement
conform, in all material respects, to the legal description thereof contained
in
the Prospectus and are in substantially the form filed or incorporated by
reference, as the case may be, as an exhibit to the Registration Statement.
(15) The information in the Prospectus under "Description of Capital
Stock-
Common Shares" and "Certain United States Federal Income Tax Considerations"
and in
the Annual Report on Form 10-K under "Legal Proceedings" and "Certain
Relationships
and Related Transactions" and in the Registration Statement under Item 15, to
the
extent that it constitutes matters of law, summaries of legal matters, the
Company's
charter and bylaws or legal proceedings, or legal conclusions, has been
reviewed by
us and is correct in all material respects and our opinion set forth under
"Certain
United States Federal Income Tax Considerations" is confirmed.
(16) The execution, delivery and performance of the Underwriting
Agreement,
the Terms Agreement and the consummation of the transactions contemplated in
the
Underwriting Agreement and the Terms Agreement (including the issuance and
sale of
the Underwritten Securities and the use of the proceeds from the sale of the
Underwritten Securities as described under the caption "Use of Proceeds") and
compliance by the Company with its obligations thereunder (i) to our
knowledge, do
not and will not, whether with or without the giving of notice or passage of
time
or both, conflict with or constitute a breach of, or default or Repayment
Event
under, or result in the creation or imposition of any lien, charge or
encumbrance
upon any property or assets of the Company or any of its Subsidiaries pursuant
to,
any contract, indenture, mortgage, deed of trust, loan or credit agreement,
note,
lease or any other agreement or instrument identified on Exhibit C hereto
which
Exhibit includes all material agreements and instruments of the Company and
its
Subsidiaries known to us (collectively, the "Material Contracts"), to which
the
Company or any of its Subsidiaries is a party or by which it or any of them
may be
bound, or to which any of the assets, properties or operations of the Company
or
any of its Subsidiaries is subject, except for such conflicts, breaches,
defaults,
events or liens, charges or encumbrances that would not result in a Material
Adverse Effect, (ii) do not and will not result in any violation of the
provisions
of the charter, by-laws or partnership agreement of the Company or any of its
Subsidiaries, and (iii) to our knowledge, based upon our review of those
United
States and Maryland laws, rules and regulations, which in our experience, are
normally applicable to transactions of the type contemplated by the
Underwriting
Agreement and the Terms Agreement, do not and will not result in any violation
of
any applicable law, statute, rule, regulation, judgment, order, writ or
decree,
known to us, of any government, government instrumentality or court, domestic
or
foreign, having jurisdiction over the Company or any of its Subsidiaries or
any of
their assets, properties or operations except for such violations that would
not
result in a Material Adverse Effect.
(17) To our knowledge, (a) neither the Company nor any of the
Subsidiaries
is in violation of its charter, bylaws or partnership agreement and (b) no
default
by the Company or any of the Subsidiaries exists in the due performance or
observance of any Material Contract.
(18) To our knowledge, there is not pending or threatened any action,
suit,
proceeding, inquiry or investigation to which the Company or any of its
Subsidiaries thereof is a party or to which the assets, properties or
operations of
the Company or any of its Subsidiaries thereof is subject, before or by any
court
or governmental agency or body, domestic or foreign, which might reasonably be
expected to result in a Material Adverse Effect or
which might reasonably be expected to materially and adversely affect the
assets,
properties or operations thereof or the consummation of the transactions
contemplated under the Underwriting Agreement, the applicable Terms Agreement
or
any applicable indenture or the performance by the Company of its obligations
thereunder.
(19) To our knowledge, there are no statutes or regulations that are
required to be described in the Prospectus that are not described as required.
(20) To our knowledge, there are no franchises, contracts,
indentures,
mortgages, loan agreements, notes, leases or other instruments required to be
described or referred to in the Registration Statement or to be filed as
exhibits
thereto other than those described or referred to therein or filed or
incorporated
by reference as exhibits thereto, and the descriptions thereof or references
thereto are correct in all material respects.
(21) The Registration Statement has been declared effective under the
1933
Act. Any required filing of the Prospectus pursuant to Rule 424(b) has been
made
in the manner and within the time period required by Rule 424(b). To the best
of
our knowledge, no stop order suspending the effectiveness of the Registration
Statement has been issued under the 1933 Act and no proceedings for that
purpose
have been initiated or are pending or threatened by the Commission.
(22) The Registration Statement and the Prospectus, excluding the
documents
incorporated by reference therein, and each amendment or supplement to the
Registration Statement and Prospectus, excluding the documents incorporated by
reference therein, as of their respective effective or issue dates (other than
the
financial statements and supporting schedules included therein or omitted
therefrom
and each Trustee's Statement of Eligibility on Form T-1 (the "Form T-1s"), as
to
which we express no opinion) complied as to form in all material respects with
the
requirements of the 1933 Act and the 1933 Act Regulations, as applicable;
provided,
however, that we express no view as to (i) the financial statements and the
financial statement schedules contained or incorporated by reference therein
or
omitted therefrom (including the notes to the financial statements and the
auditors' reports on the financial statements) and (ii) the other financial
information contained or incorporated by reference therein or omitted
therefrom
(including the information set forth under "The Portfolio").
(23) The documents incorporated by reference in the Prospectus (other
than
the financial statements and supporting schedules therein or omitted
therefrom, as
to which we express no opinion), when they became effective or were filed with
the
Commission, as the case may be, complied as to form in all material respects
with
the requirements of the 1933 Act or the 1934 Act, as applicable, and the rules
and
regulations of the Commission thereunder; provided, however, that we express
no
view as to (i) the financial statements and the financial statement schedules
contained or incorporated by reference therein or omitted therefrom (including
the
notes to the financial statements and the auditors' reports on the financial
statements) and (ii) the other financial information contained or incorporated
by
reference therein or omitted therefrom (including the information set forth
under
"The Portfolio").
(24) No filing with, or authorization, approval, consent, license,
order
registration, qualification or decree of, any court or governmental authority
or
agency is necessary or required for the performance by the Company of its
obligations under the Underwriting Agreement or the Terms Agreement or in
connection with the transactions contemplated under the Underwriting Agreement
or
the Terms Agreement other than under the 1933 Act, the 1933 Act Regulations,
the
1939 Act and the 1939 Act Regulations, which have been obtained, or as may be
required under state securities or blue sky laws or regulations.
(25) Neither the Company nor any of its Subsidiaries is required to
register as an "investment company" within the meaning of the Investment
Company Act
of 1940, as amended.
(26) The Company and CRI Liquidating REIT, Inc. were each organized
and
have operated in conformity with the requirements for qualification and
taxation as
a real estate investment trust ("REIT") under the Code for each of the taxable
years that they have been in existence, and the Company's and CRI Liquidating
REIT
Inc.'s current organization and method of operation will enable them to
continue to
meet the requirements for qualification as a REIT for each of their subsequent
taxable years. The Company's qualification as a REIT under the Code will
depend
upon the Company's ability to meet, through actual operating results,
distribution
levels, diversity of stock ownership and the various income and asset
qualification
tests imposed under the Code. Such operating results may not be reviewed by
us as
Counsel, and accordingly, no assurance can be given that the actual results of
the
Company's operations for any one taxable year will satisfy the requirements
under
the Code for REIT qualification. Moreover, certain aspects of the Company's
operations have not been considered by the courts or the Internal Revenue
Service.
There can be no assurance that the courts or the Internal Revenue Service will
agree with our opinion. In addition, qualification as a REIT depends on
future
transactions and events that cannot be known at this time. For a discussion
relating the law to the facts, and the legal analysis underlying the opinions
set
forth in this letter, we incorporate by reference the discussion of federal
income
tax issues in the sections of the Registration Statement under the headings
"CERTAIN UNITED STATES FEDERAL INCOME TAX CONSIDERATIONS" and "RISK FACTORS --
CERTAIN TAX CONSIDERATIONS."
In addition to the foregoing opinions, nothing has come to our attention
that
would lead us to believe that the Registration Statement or any post-effective
amendment thereto (except for financial statements and schedules and other
financial data included therein or omitted therefrom and for the Form T-1s, as
to
which we make no statement), at the time the Registration Statement or any
post-
effective amendment thereto (including the filing of the Company's Annual
Report on
Form 10-K with the Commission) became effective or at the date of the
applicable
Terms Agreement, contained an untrue statement of a material fact or omitted
to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus or any amendment or
supplement thereto (except for financial statements and schedules and other
financial data included therein or omitted therefrom, as to which we make no
statement), at the time the Prospectus was issued, at the time any such
amended or
supplemented prospectus was issued or at the Closing Time, included or
includes an
untrue statement of a material
fact or omitted or omits to state a material fact necessary in order to make
the
statements therein, in the light of the circumstances under which they were
made,
not misleading.
In rendering such opinion, such counsel may rely as to matters of fact
(but not
as to legal conclusions), to the extent they deem proper, on certificates of
responsible officers of the Company and public officials. Such opinion shall
not
state that it is to be governed or qualified by, or that it is otherwise
subject
to, any treatise, written policy or other document relating to legal opinions,
including, without limitation, the Legal Opinion Accord of the ABA Section of
Business Law (1991).
