EXHIBIT 10.4
EXHIBIT C
FORM OF REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT dated as of ________ __, 200_ (this
"AGREEMENT"), between CRIIMI MAE INC., a Maryland corporation (the "COMPANY"),
and BRASCAN REAL ESTATE FINANCIAL INVESTMENTS LLC, a Delaware limited liability
company (the "INVESTOR").
WITNESSETH:
WHEREAS pursuant to the Investment Agreement dated as of November 14, 2002
(the "INVESTMENT AGREEMENT"; certain terms used but not defined herein shall
have the meanings assigned thereto in the Investment Agreement), between the
Company and the Investor, the Investor will become the owner in the aggregate of
_________ shares (the "REGISTRABLE SHARES") of common stock, par value $.01 per
share, of the Company (the "COMMON STOCK"); and
WHEREAS the Company wishes to grant the Investor certain rights relating to
the registration of the Registrable Shares.
NOW, THEREFORE, in consideration of the agreements, covenants,
representations and warranties contained herein and in the Investment Agreement,
the parties hereto agree as follows:
SECTION 1. DEMAND REGISTRATIONS. (a) At any time after the first
anniversary of the date hereof, the Investor may request registration under the
Securities Act of 1933, as amended (the "SECURITIES ACT"), of all or part of the
Registrable Shares for sale in the manner specified in such request; PROVIDED,
HOWEVER, that the Company shall not be obligated to register Registrable Shares
pursuant to this Section 1 on more than four occasions in the aggregate. All
registrations requested pursuant to this Section 1 shall be referred to herein
as "DEMAND REGISTRATIONS".
(b) Subject to Section 5(b), a registration will not count as a
Demand Registration for purposes of the proviso to Section 1 unless it has
become effective.
(c) The Company and the Investor shall, upon mutual agreement,
designate one or more managing underwriters of nationally recognized standing,
if applicable, for such offering.
SECTION 2. PIGGYBACK RIGHTS. (a) Whenever the Company proposes to
register any Common Stock under the Securities Act on a registration statement
other than Form S-4 or Form S-8 (or any success or forms thereto), the Company
will give prompt written notice to the Investor of its intention to effect such
a registration (which notice shall be given not less than 15 days prior to the
date the registration statement is to be filed) and, subject to the terms
hereof, will include in such registration (a "PIGGYBACK REGISTRATION") all
Registrable Shares with respect to which the Company has received a written
request from the Investor for inclusion therein within ten days after the
receipt of the Company's notice.
(b) If the managing underwriters for such offering advise the
Company in writing that in their opinion the number of securities to be
registered and sold for the account of the Company, Registrable Shares and other
securities requested to be included in such Piggyback Registration exceeds the
number of Registrable Shares, securities to be registered and sold for the
account of the Company and other securities that can be sold in such offering,
then the Company will include in such registration only: (x) FIRST, any
securities the Company proposes to sell for its own account or is required to
include under any agreement of the Company, and (y) SECOND, Registrable Shares
requested to be included in such registration to the extent that, in the opinion
of such underwriters, they can be sold.
SECTION 3. HOLDBACK. The Company agrees (and shall sign an agreement
to such effect in the usual form of the managing underwriters, if the managing
underwriters request such agreement) not to effect any public sale or
distribution of Common Stock, or any securities convertible into or exchangeable
or exercisable for Common Stock, during the 15 days prior to and the 90-day
period beginning on the effective date of any underwritten Demand Registration
or Piggyback Registration (except as part of such underwritten registration).
SECTION 4. REGISTRATION PROCEDURES. (a) Whenever the Investor has
requested that any Registrable Shares be registered pursuant to this Agreement,
the Company will use all reasonable efforts promptly to effect the registration
and the sale of such Registrable Shares (subject to the limitations in Sections
1(a), 1(c) and 2(b)) in accordance with the intended method of disposition
thereof, and pursuant thereto the Company will use all reasonable efforts to:
(i) prepare (and afford counsel for the Investor reasonable
opportunity to review and comment on) and file with the United States
Securities and Exchange Commission (the "COMMISSION") within 60 days (or if
the Company shall not then be eligible to use Form S-3, 90 days) of the
date of such request a registration statement with respect to such
Registrable Shares and cause such registration statement to become and
remain effective for such period as may be reasonably necessary to effect
the sale of such securities as described in such request, but in no event
for a period in excess of 120 days; PROVIDED, HOWEVER, that such period
shall be extended by one day for each day that the distribution must be
suspended by the Investor pursuant to Section 4(b)(ii).
(ii) prepare (and afford counsel for the Investor reasonable
opportunity to review and comment on) and file with the Commission such
amendments and supplements to such registration statement and the
prospectus used in connection therewith as may be necessary to keep such
registration statement effective and comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by
such registration statement during such period in accordance with the
intended methods of disposition by the Investor set forth in such
registration statement;
(iii) furnish to the Investor and the underwriters of the
Registrable Shares being registered such number of copies of such
registration statement, each amendment and supplement thereto, the
prospectus included in such registration statement (including each
preliminary prospectus) and such other documents as the Investor or such
underwriters may reasonably request in order to facilitate the disposition
of the Registrable Shares being registered or the sale of such securities
by such underwriters;
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(iv) register or qualify such Registrable Shares under such other
securities or blue sky laws of such jurisdictions within the United States
as the Investor or, in the case of an underwritten public offering, the
managing underwriter, reasonably requests and do any and all other acts and
things which may be reasonably necessary to enable the Investor to
consummate the disposition in such jurisdictions of the Registrable Shares
owned by the Investor; PROVIDED, HOWEVER, that the Company will not be
required to (A) qualify generally to do business in any jurisdiction where
it would not otherwise be required to qualify but for this subsection or
(B) consent to general service of process in any such jurisdiction;
(v) cause all such Registrable Shares to be listed or authorized
for quotation on each securities exchange or automated quotation system on
which the Common Stock is then listed or quoted or, if the Common Stock is
not then so listed or quoted, as the Investor may reasonably request;
(vi) provide a transfer agent and registrar for all such
Registrable Shares not later than the effective date of such registration
statement;
(vii) enter into such customary agreements (including underwriting
agreements in customary form) and take all such other actions as the
Investor or the underwriters, if any, reasonably request in order to
expedite or facilitate the disposition of such Registrable Shares;
(viii) make available for inspection at a reasonable time by the
Investor, any underwriter participating in any disposition pursuant to such
registration statement and any attorney, accountant or other agent retained
by the Investor or such underwriter, all financial and other records,
pertinent corporate documents and properties of the Company, and cause the
Company's officers, directors, employees and independent accountants to
supply all information reasonably requested by the Investor or any such
underwriter, attorney, accountant or agent in connection with the
preparation of such registration statement;
(ix) notify the Investor, promptly after it shall receive notice
thereof, of the time when such registration statement has become effective
or a supplement to any prospectus forming a part of such registration
statement has been filed;
(x) notify the Investor of any request by the Commission for the
amending or supplementing of such registration statement or prospectus or
for additional information;
(xi) prepare (and afford counsel for the Investor reasonable
opportunity to review and comment on) and file with the Commission,
promptly upon the request of the Investor, any amendments or supplements to
such registration statement or prospectus that, in the opinion of the
Investor's counsel, may be required under the Securities Act in connection
with the distribution of Registrable Shares by the Investor;
(xii) prepare and promptly file with the Commission and promptly
notify the Investor of the filing of such amendment or supplement to such
registration statement or prospectus as may be necessary to correct any
statements or omissions if, at the time
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when a prospectus relating to such securities is required to be delivered
under the Securities Act, any event shall have occurred as the result of
which any such prospectus or any other prospectus as then in effect would
include an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(xiii) advise the Investor, promptly after it shall receive notice or
obtain knowledge thereof, of the issuance of any stop order by the
Commission suspending the effectiveness of such registration statement or
the initiation or threatening of any proceeding for such purpose and use
all reasonable efforts promptly to prevent the issuance of any stop order
or to obtain its withdrawal if such stop order is issued;
(xiv) (A) at least 48 hours prior to the filing of any registration
statement or prospectus or any amendment or supplement to such registration
statement or prospectus furnish a copy thereof to the Investor and (B)
refrain from filing any such registration statement, prospectus, amendment
or supplement to which the Investor's counsel shall have objected in
writing on the grounds that such registration statement, prospectus,
amendment or supplement may not comply in all material respects with the
requirements of the Securities Act;
(xv) at the request of the Investor furnish on the date or dates
provided for in the underwriting agreement, if any, or upon the effective
date of the registration statement: (A) an opinion of counsel, addressed to
the underwriters, if any, and the Investor, covering such matters as such
underwriters, if any, and the Investor may reasonably request and as are
customarily covered by the issuer's counsel in an underwritten offering;
and (B) a letter or letters from the independent certified public
accountants of the Company addressed to the underwriters, if any, and the
Investor covering such matters as such underwriters, if any, and the
Investor may reasonably request and as are customarily covered in
accountant's letters in connection with an underwritten offering;
(xvi) during such time as the Investor may be engaged in a
distribution of Registrable Shares, comply with Regulation M promulgated
under the Exchange Act, to the extent applicable;
(xvii) participate, to the extent the Investor may reasonably
request, with the Investor in any road show in connection with an
underwritten offering; and
(xviii) otherwise comply with the provisions of the Securities Act
with respect to the disposition of all securities covered by such
registration statement in accordance with the intended method of
disposition and make generally available to its security holders, as soon
as reasonably practicable, an earnings statement satisfying the provisions
of Section 11(a) of the Securities Act and Rule 158 thereunder.
(b) Upon requesting registration of Registrable Shares pursuant to
a registration under this Agreement, the Investor agrees as follows:
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(i) The Investor shall cooperate as reasonably requested by the
Company with the Company in connection with the preparation of the
registration statement, and for so long as the Company is obligated to file
and keep effective the registration statement, shall provide to the
Company, in writing, for use in the registration statement, all such
information regarding the Investor and its plan of distribution of
Registrable Shares as may be reasonably necessary to enable the Company to
prepare the registration statement and prospectus covering the Registrable
Shares, to maintain the currency and effectiveness thereof and otherwise to
comply with all applicable requirements of law in connection therewith; and
(ii) During such time as the Investor may be engaged in a
distribution of the Registrable Shares, the Investor shall (A) comply with
Regulation M promulgated under the Exchange Act, to the extent applicable,
(B) distribute the Registrable Shares under the registration statement
solely in the manner described in the registration statement and (C) cease
distribution of such Registrable Shares pursuant to such registration
statement upon receipt of written notice from the Company that the
prospectus covering the Registrable Shares contains any untrue statement of
a material fact or omits a material fact required to be stated therein or
necessary to make the statements therein not misleading.
SECTION 5. REGISTRATION EXPENSES. (a) All expenses incident to the
Company's performance of or compliance with this Agreement, including, without
limitation, all registration and filing fees, fees of transfer agents and
registrars, fees and expenses of compliance with securities or blue sky laws,
fees of the National Association of Securities Dealers, Inc., printing expenses,
road show expenses, fees and disbursements of counsel for the Company, fees and
expenses of the Company's independent certified public accountants, and the fees
and expenses of any underwriters (excluding underwriting fees, expenses,
discounts or commissions attributable to the Registrable Shares included in such
registration, which will be paid or borne by the Investor) and other Persons
retained by the Company (all such expenses being herein called "REGISTRATION
EXPENSES"), will be borne by the Company. In addition, the Company will pay its
internal expenses (including, without limitation, all salaries and expenses of
its officers and employees performing legal or accounting duties), the expense
of any annual audit or quarterly review, the expense of any liability insurance
obtained by the Company and the expenses and fees for listing or authorizing for
quotation the securities to be registered on each securities exchange or
automated quotation system on which any shares of Common Stock are then listed
or quoted.
(b) Notwithstanding Section 5(a) above, the Investor agrees that
in the event the Investor withdraws any registration demand, the Investor shall
either reimburse the Company for the Registration Expenses incurred by the
Company in connection with such registration or count such withdrawn demand as a
Demand Registration for purposes of the proviso in Section 1(a).
SECTION 6. INDEMNIFICATION. (a) In the event of a registration of the
Registrable Shares under the Securities Act pursuant to the terms hereof, the
Company agrees to indemnify, hold harmless and defend, to the fullest extent
permitted by law, the Investor and its managers, partners, officers, employees
and affiliates against all losses, claims, damages, liabilities and expenses
(including, without limitation, reasonable attorneys' fees except as limited by
Section
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6(c)) caused by, arising out of, resulting from or related to any untrue or
alleged untrue statement of a material fact contained in any registration
statement under which such Registrable Shares were registered, any prospectus or
preliminary prospectus contained therein or any amendment thereof or supplement
thereto or any omission or alleged omission of a material fact required to be
stated therein or necessary to make the statements therein not misleading,
except insofar as the same are caused by or contained in any information
furnished in writing to the Company or any managing underwriter by the Investor
or a controlling Person thereof and except where such untrue statement was
contained in or such omission was from a registration statement, preliminary
prospectus or prospectus or an amendment thereto or supplement thereof that was
subsequently corrected in an amendment thereto by the Company and such
registration statement, preliminary prospectus, amendment or supplement was not
delivered by or on behalf of the Investor or the Company. In connection with an
underwritten offering, the Company will indemnify such underwriters, their
officers and directors and each Person who controls such underwriters (within
the meaning of the Securities Act or the Exchange Act) to the same extent as
provided above with respect to the indemnification of the Investor (and with the
same exception with respect to information furnished or omitted by such
underwriter or controlling Person thereof) and in connection therewith the
Company shall enter into an underwriting agreement in customary form containing
such provisions for indemnification and contribution as shall be reasonably
requested by the underwriters. The reimbursements required by this Section 6(a)
will be made by periodic payments during the course of the investigation or
defense, as and when bills are received or expenses incurred, upon receipt by
the Company of itemized invoices.
(b) In the event of a registration of the Registrable Shares under
the Securities Act pursuant to the terms hereof, the Investor agrees to
indemnify, hold harmless and defend, to the fullest extent permitted by law, the
Company and its directors, officers, employees and affiliates and each
underwriter and controlling Person thereof against all losses, claims, damages,
liabilities and expenses (including, without limitation, reasonable attorneys'
fees except as limited by Section 6(c)) caused by, arising out of, resulting
from or related to any untrue or alleged untrue statement of a material fact
contained in any registration statement under which such Registrable Shares were
registered, any prospectus or preliminary prospectus contained therein, or any
amendment thereof or supplement thereto or any omission or alleged omission of a
material fact required to be stated therein or necessary to make the statements
therein not misleading, but only to the extent that such untrue or alleged
untrue statement or omission or alleged omission is contained in any information
so furnished in writing to the Company or any managing underwriter by the
Investor or a controlling Person thereof expressly for use therein. The
reimbursements required by this Section 6(b) will be made by periodic payments
during the course of the investigation or defense, as and when bills are
received or expenses incurred, upon receipt by the Investor of itemized
invoices.
(c) Any Person entitled to indemnification hereunder will (i) give
prompt written notice to the indemnifying party of any claim with respect to
which it seeks indemnification (provided that the failure to give such notice
shall not limit the rights of such Person except to the extent such failure to
give notice shall materially prejudice the rights of the indemnifying party) and
(ii) unless in such indemnified party's reasonable judgment (with written advice
of counsel) a conflict of interest between such indemnified and indemnifying
parties may exist with respect to such claim, permit such indemnifying party to
assume the defense of such claim with counsel reasonably satisfactory to the
indemnified party. If such
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defense is assumed, the indemnifying party will not enter into any settlement
without the indemnified party's prior written consent unless such settlement
includes an unconditional release of the indemnified party from liability
relating to such claim or the matters that gave rise to such claim.
(d) The parties hereto agree that, if for any reason the
indemnification provisions contemplated by Section 6(a), 6(b) or 6(c) are
unavailable to or insufficient to hold harmless an indemnified party in respect
of any losses, claims, damages, liabilities or expenses (or actions in respect
thereof) referred to therein, then the indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of such losses,
claims, damages, liabilities or expenses (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party and the indemnified party as well as any other relevant equitable
considerations. The relative fault of such indemnifying party and indemnified
party shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by such
indemnifying party or indemnified party, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 6(d) were determined by pro
rata allocation (even if any underwriters or all of them were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to in this Section 6(d).
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities or expenses (or actions in respect thereof)
referred to above shall be deemed to include any legal or other fees or expenses
reasonably incurred by such indemnified party in connection with investigating
or, except as provided in Section 6(c), defending any such action or claim.
Notwithstanding the provisions of this Section 6(d), the Investor shall not be
required to contribute an amount greater than the dollar amount of the proceeds
received by the Investor with respect to the sale of any Registrable Shares. No
Person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from an
indemnifying Person who was not guilty of such fraudulent misrepresentation.
SECTION 7. COMPLIANCE WITH RULE 144. The Company shall (i) make and
keep public information available, as those terms are understood and defined in
Rule 144 under the Securities Act ("RULE 144"), (ii) file with the Company in a
timely manner all reports and other documents required of the Company under the
Securities Act and the Exchange Act and (iii) at the request of the Investor,
forthwith furnish to the Investor a written statement of compliance with the
reporting requirements of the Commission as set forth in Rule 144 and make
available to the Investor such information as will enable the Investor to make
sales pursuant to Rule 144.
SECTION 8. NOTICE. Whenever any notice is required to be given
hereunder, such notice shall be deemed given only when such notice is in writing
and is delivered by messenger or courier or, if sent by fax, when received. All
notices, requests and other communications hereunder shall be delivered by
courier, reputable overnight delivery service or messenger or shall be sent by
facsimile to the following addresses:
(i) If to the Investor, at the following address:
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Brascan Real Estate Financial Investments LLC
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Managing Partner
with a copy by facsimile or messenger or courier to:
Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
(ii) If to the Company, at the following address:
CRIIMI MAE Inc.
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Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
with a copy by facsimile or messenger or courier to:
Venable, Baetjer, ▇▇▇▇▇▇ & Civiletti, LLP
▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇., ▇.▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ D. C. 20005
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
or to such other respective addresses as may be designated by notice given in
accordance with this Section 8.
SECTION 9. COMPLETE AGREEMENT; NO THIRD-PARTY BENEFICIARIES. This
Agreement, the other Ancillary Agreements, the Investment Agreement, the
Confidentiality Agreement and the Company Letter constitute the entire agreement
among the parties pertaining to the subject matter hereof and supersedes all
prior agreements and understandings of the parties in connection therewith. This
Agreement, other than Section 6, is not intended to confer upon any Person other
than the Company and the Investor any rights or remedies hereunder.
SECTION 10. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT
REFERENCE TO ITS PRINCIPLES OF CONFLICTS OF LAWS. THE INVESTOR AND THE COMPANY
HEREBY CONSENT TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND
THE FEDERAL COURTS LOCATED IN THE BOROUGH OF MANHATTAN WITH RESPECT TO ANY
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ACTION, SUIT OR PROCEEDING BROUGHT TO ENFORCE ANY PROVISION OF THIS AGREEMENT OR
TO DETERMINE THE RIGHTS OF ANY PARTY HERETO.
SECTION 11. NO ASSIGNMENT. This agreement may be assigned by the
Investor without the consent of the Company to Brascan Real Estate Financial
Partners LLC or a controlled affiliate thereof. Subject to the foregoing,
neither this Agreement nor any rights or obligations under it are assignable by
either party without the written consent of the other party.
SECTION 12. HEADINGS. The descriptive headings of the sections and
subsections of this Agreement are for convenience only and do not constitute a
part of this Agreement.
SECTION 13. COUNTERPARTS. This Agreement may be executed in one or
more counterparts and by different parties in separate counterparts. All such
counterparts shall constitute one and the same agreement and shall become
effective when one or more counterparts have been signed by each party and
delivered to the other party.
SECTION 14. INTERPRETATION. The word "including", when used herein,
shall be deemed to mean "including, without limiting the generality of the
foregoing". When a reference is made in this Agreement to a Section, such
reference shall be to a section of this Agreement, unless otherwise indicated.
SECTION 15. REMEDIES; WAIVER. All rights and remedies existing under
this Agreement are cumulative to, and not exclusive of, any rights or remedies
otherwise available. No failure on the part of any party to exercise or delay in
exercising any right hereunder shall be deemed a waiver thereof, nor shall any
single or partial exercise preclude any further or other exercise of such or any
other right.
SECTION 16. SEVERABILITY. Any invalidity, illegality or
unenforceability of any provision of this Agreement in any jurisdiction shall
not invalidate or render illegal or unenforceable the remaining provisions
hereof in such jurisdiction and shall not invalidate or render illegal or
unenforceable such provisions in any other jurisdiction. The Company and the
Investor shall endeavor in good faith negotiations to replace any invalid,
illegal or unenforceable provision with a valid, legal and enforceable
provision, the economic effect of which comes as close as possible to that of
the invalid, illegal or unenforceable provision.
SECTION 17. AMENDMENT; WAIVER. This Agreement may be amended only by
agreement in writing of both parties. No waiver of any provision nor consent to
any exception to the terms of this Agreement shall be effective unless in
writing and signed by the party to be bound and then only to the specific
purpose, extent and instance so provided.
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IN WITNESS WHEREOF, the Investor and the Company have caused this
Agreement to be signed by their respective offers thereunto duly authorized all
as of the date first written above.
BRASCAN REAL ESTATE FINANCIA
INVESTMENTS LLC
By: BRASCAN REAL ESTATE
FINANCIAL PARTNERS LLC,
its Managing Member
By:
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: President
CRIIMI MAE INC.
By:
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Name:
Title:
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