SECOND AMENDMENT AND WAIVER
Exhibit
10.1
SECOND
AMENDMENT AND WAIVER
SECOND
AMENDMENT AND WAIVER (this
“Amendment”), dated as of August 15, 2007, by and
among CRYSTAL RIVER CAPITAL, INC., a corporation organized under the laws of
the
State of Maryland (“Borrower”), BANK HAPOALIM B.M. (“BHBM”) and
SIGNATURE BANK (“Signature”; each of BHBM and Signature, a
“Lender” and, collectively, the “Lenders”), and Signature as
administrative agent for Lenders (in such capacity, the
“Agent”). Terms which are capitalized in this Amendment and
not otherwise defined herein shall have the meanings ascribed to such terms
in
the Credit Agreement (as defined below).
WHEREAS,
Borrower, Agent and Lenders are parties to that certain Revolving Credit
Agreement, dated as of March 1, 2006, as amended by that
certain First Amendment, dated as of April 10, 2006, (as further amended,
modified or supplemented from time to time, the “Credit
Agreement”);
WHEREAS,
Borrower, Agent and Lenders are parties to that certain letter
agreement dated August 9, 2007 (the “Waiver Letter”) among Borrower,
Agent and Lender;
WHEREAS,
Borrower has requested a reduction of the Maximum Advance Amount in the amount
of $10,000,000;
WHEREAS,
in connection with such reduction, Borrower desires to release BHBM from its
obligations under the Credit Agreement;
WHEREAS,
Borrower has requested that Agent and Signature waive certain covenants under
the Credit Agreement;
WHEREAS,
Borrower has requested that Agent and Signature extend the Waiver
Period (as such term is defined in the Waiver Letter); and
WHEREAS,
subject to the terms and conditions contained in this Amendment, the Credit
Agreement shall be amended, and such waiver shall be consented to, as set forth
herein;
NOW,
THEREFORE, in consideration of the foregoing, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
Section
1. Amendment to Credit
Agreement. On the Effective Date (as
defined in Section 3 hereof), the Credit Agreement is hereby amended as
follows:
(a) Section
1.2 of the Credit Agreement is hereby amended by deleting the definition
“Maximum Advance Amount” in its entirety and substituting the following in lieu
thereof:
“Maximum
Advance Amount” shall mean $21,000,000, which such amount may be increased
in accordance with Section 2.4(b) hereof.
Section
2. Commitment
Percentages.
(a) On
the Effective Date, and after giving effect to the reduction of the Maximum
Advance Amount as described herein, the Commitment Percentage of Signature
shall
be 100%. Each of Borrower, Agent and Lenders expressly consents to
the reallocation set forth above and hereby waives compliance with all notice
requirements set forth in the Credit Agreement. The parties hereto
further agree that any noncompliance with the provisions of the Credit Agreement
by virtue of the reallocation set forth above shall not constitute a Default
or
Event of Default by Borrower and that such reallocation shall be deemed to
be
permissible and effective in all respects and for all purposes under the Credit
Agreement.
(b) Notwithstanding
Section 2.5(b) of the Credit Agreement to the contrary, Lenders hereby agree
that Borrower shall, on the Effective Date, pay to BHBM an amount equal to
$10,000,000 plus accrued and unpaid interest on such amount through but
excluding the Effective Date, provided that such payment is made in accordance
with Section 2.5(c) of the Credit Agreement. BHBM shall, promptly
following receipt of such payment, deliver to Borrower that certain Revolving
Credit Note dated as of April 10, 2006 in the principal amount of $10,000,000
for cancellation by Borrower. The parties hereto agree that any
noncompliance with the provisions of the Credit Agreement by virtue of the
payment set forth above shall not constitute a Default or Event of Default
by
Borrower and that such payment shall be deemed to be permissible and effective
in all respects and for all purposes under the Credit Agreement.
(c) On
the Effective Date and after giving effect to the reduction of the Maximum
Advance Amount and payment to BHBM described herein, BHBM shall be released
from
all of its obligations under the Credit Agreement and shall relinquish all
of
its rights thereunder (other than such rights that expressly survive the
termination of BHBM’s obligations under the Credit Agreement). The
parties hereto consent to such release of BHBM and agree that any noncompliance
with the provisions of the Credit Agreement by virtue of such release shall
not
constitute a Default or Event of Default by Borrower and that such release
shall
be deemed to be permissible and effective in all respects and for all purposes
under the Credit Agreement.
Section
3. Conditions
Precedent. This Amendment, and the
waivers set forth in Section 4 of this Amendment, shall be effective upon the
date on which the following conditions precedent are satisfied (such date,
the
“Effective Date”):
(a) Agent
and Lenders shall have received a duly executed counterpart of this Amendment
from Borrower;
(b) BHBM
shall have received the payment contemplated by Section 2(b) of this
Amendment;
(c) Agent
shall have received a closing certificate signed by the Chief Financial Officer
of Borrower dated as of the date hereof, stating that other than the Events
of
Default described in the Waiver Letter (i) all representations and warranties
set forth in this Amendment, the Credit Agreement, as amended by this Amendment
(except for such representations and warranties that were only required to
be
true and correct as of a specified prior date) and the Other Documents are
true
and correct in all material respects on and as of such date, (ii) Borrower
is on
such date in compliance with all the material terms and provisions
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set
forth
in this Amendment, the Credit Agreement and the Other Documents and (iii) on
such date no Default or Event of Default has occurred or is
continuing;
(d) All
representations and warranties set forth in the Credit Agreement, as amended
by
this Amendment (except for such representations and warranties that were only
required to be true and correct as of a specified prior date) shall be true
and
correct in all material respects on and as of the Effective Date (other than
the
Events of Default described in the Waiver Letter);
(e) No
Default or Event of Default shall have occurred and be continuing on the date
hereof (other than the Events of Default described in the Waiver
Letter);
(f) No
event, condition or state of facts shall have occurred since the Closing Date,
which such event, condition or state of facts has had or is reasonably likely
to
have a Material Adverse Effect;
(g) Agent
shall have received and reviewed to its satisfaction full, complete final and
signed copies of all further agreements, consents, instruments and documents
as
may be necessary or proper, in its reasonable opinion, and in the reasonable
opinion of its counsel, to carry out the provisions and purposes of this
Amendment; and
(h) Borrower
shall have paid any and all reasonable fees and expenses incurred by Agent
and
Lenders in connection with the preparation and execution of this
Amendment.
Section
4. Representations and
Warranties. Borrower represents and
warrants to Agent and Lenders that:
(a) Borrower
has the corporate power, authority and legal right to execute, deliver and
perform this Amendment and the other instruments, agreements, documents and
transactions contemplated hereby to which it is a party, and has taken all
actions necessary to authorize the execution, delivery and performance of this
Amendment and the other instruments, agreements, and documents to which it
is a
party and the transactions contemplated hereby and thereby;
(b) No
consent of any Person (including, without limitation, stockholders or creditors
of Borrower) other than Agent and Lenders, and no consent, permit, approval
or
authorization of, exemption by, notice or report to, or registration, filing
or
declaration with, any governmental authority is required in connection with
the
execution, delivery and performance by Borrower, or the validity or
enforceability against Borrower, of this Amendment and the other instruments,
agreements, documents and transactions contemplated hereby to which it is a
party;
(c) This
Amendment has been duly executed and delivered on behalf of Borrower by its
duly
authorized officer, and constitutes the legal, valid and binding obligation
of
Borrower, enforceable in accordance with its terms, except to the extent that
such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium and similar laws affecting the rights of creditors
generally or equitable remedies (whether arising in a proceeding at law or
in
equity);
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(d) No
Default or Event of Default has occurred and is continuing on the date hereof
(other than the Events of Default described in the Waiver Letter);
(e) Borrower
is duly incorporated and in good standing under the laws of its state of
incorporation and each other state in which qualification and good standing
are
necessary for Borrower to conduct its business and own its property and where
the failure to so qualify could reasonably be expected to have a Material
Adverse Effect; and
(f) Upon
the Effective Date, Borrower is not in default under any indenture, mortgage,
deed of trust, agreement or other instrument to which it is a party or by which
it may be bound. Neither the execution and delivery of this
Amendment, nor the consummation of the transactions herein contemplated, nor
compliance with the provisions hereof will (i) violate any law or regulation,
or
(ii) result in or cause a violation by Borrower of any order or decree of
any court or government instrumentality, or (iii) conflict with, or result
in the breach of, or constitute a default under, any indenture, mortgage, deed
of trust, material agreement or other material instrument to which Borrower
is a
party or by which it may be bound, or (iv) result in the creation or
imposition of any lien, charge, or encumbrance upon any of the property of
Borrower, except in favor of Agent, for the benefit of Lenders, to secure the
Obligations, or (v) violate any provision of the Certificate of
Incorporation, By-Laws or any capital stock or similar equity instrument of
Borrower.
Section
5. Waivers.
(a) Agent
and Signature hereby agree that, notwithstanding Section 6.5 of the Credit
Agreement and the Waiver Letter, Borrower shall be permitted to apply any of
its
funds, property or assets, in one or more transactions, to the purchase,
redemption or other retirement of Equity Interests of Borrower, provided,
however, that such purchase(s), redemption(s) or other retirement(s) shall
occur
on or prior to September 30, 2007 and shall not exceed $5,000,000 in
total.
(b) Agent
and Signature hereby agree that the Waiver Period (as such term is defined
in
the Waiver Letter) shall be extended to September 28, 2007.
(c) Except
for the waiver expressly set forth above in Section 5(a) (the “Waiver”)
and in the Waiver Letter, Agent and Signature reserve each and every right
and
remedy they may have under the Credit Agreement, any Other Documents, the Waiver
Letter and under applicable law with respect to any Default or Event of Default
thereunder. Nothing in this Amendment shall be deemed to constitute a
waiver by Agent or Signature of any other Default or Event of Default, whether
now existing or hereafter arising, or of any right or remedy Agent or Signature
may have under the Credit Agreement, any of the Other Documents, the Waiver
Letter or applicable law, except to the extent expressly set forth in Section
5(a) and in the Waiver Letter.
(d) Without
limiting the generality of the provisions of Sections 14.2(a) and 14.2(b) of
the
Credit Agreement, the waiver forth above in Section 5(a) (the “Waiver”)
shall be limited precisely as written and relate solely to the waiver of the
provisions of the Credit Agreement in the manner and to the extent described
above, and except as expressly set forth in
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Section
5(a), nothing in the Waiver shall be deemed to (a) constitute a waiver of (i)
any Default or Event of Default under the Credit Agreement, the Waiver Letter
or
the other documents and instruments and agreements referred to therein or
executed pursuant to or in connection therewith (the “Documentation”), or
(ii) compliance by the Borrower with respect to any other term, provision
or condition of the Credit Agreement, the Waiver Letter or any of the other
Documentation; or (b) prejudice any right or remedy that Agent or Signature
may
now have or may have in the future under, pursuant to or in connection with
the
Credit Agreement, the Waiver Letter or any of the other
Documentation.
Section
6. General Provisions.
(a) Except
as herein expressly amended, the Credit Agreement, the Waiver Letter and all
other agreements, documents, instruments and certificates executed in connection
therewith, are ratified and confirmed in all respects and shall remain in full
force and effect in accordance with their respective terms.
(b) This
Amendment may be executed by the parties hereto individually or in combination,
in one or more counterparts, each of which shall be an original and all which
shall constitute one and the same agreement. Signatures by facsimile
shall bind the parties hereto.
(c) All
references in the Other Documents and the Waiver Letter to the Credit Agreement
shall mean the Credit Agreement as amended hereby and as hereafter amended,
supplemented or modified from time to time. From and after the date
hereof, all references in the Credit Agreement to “this Agreement,” “hereof,”
“herein,” or similar terms, shall mean and refer to the Credit Agreement as
amended by this Amendment.
(d) Borrower
hereby fully releases, remises, acquits, irrevocably waives and forever
discharges Agent and Lenders, together with their respective predecessors,
successors, assigns, subsidiaries, affiliates and agents and all of their
respective past, present and future officers, directors, shareholders,
employees, contractors and attorneys and their respective predecessors, heirs,
successors and assigns, from and with respect to any and all past, present
or
future actions and causes of action, suits, disputes, controversies, claims,
debts, sums of money, offset rights, defenses to payment, agreements, promises,
notes, bonds, bills, covenants, losses, damages, judgments, executions and
demands of whatever nature, known or unknown, fixed or contingent, direct,
indirect, or derivative, asserted or unasserted, foreseen or unforeseen,
suspected or unsuspected, liquidated or unliquidated, matured or unmatured,
whether in contract, in tort or otherwise, at law or in equity, arising on
or
prior to the date hereof, for money damages or dues, recovery of property,
or
specific performance, in respect of the Credit Agreement, the Waiver Letter
or
any of the other Documentation and the transactions contemplated hereby and
thereby, all the foregoing being with full knowledge and understanding of the
circumstances and effect thereof and after having consulted legal counsel with
respect thereto.
(e) This
Amendment shall be governed by and construed in accordance with the laws of
the
State of New York applied to contracts to be performed wholly within the State
of New York.
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IN
WITNESS WHEREOF, each of Agent, Lenders and Borrower have caused this
Amendment to be duly executed and delivered by their respective proper and
duly
authorized officers as of the day and year first above written.
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as Borrower
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By:
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/s/ Xxxxxxxx Xxx | |
| Name: Xxxxxxxx Xxx | |||
| Title: President | |||
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SIGNATURE
BANK,
as Lender and as Administrative Agent
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By:
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/s/ Xxxxxx X. Xxxxx | |
| Name: Xxxxxx X. Xxxxx | |||
| Title: Senior Vice President | |||
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BANK HAPOALIM
B.M.,
as Lender
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By:
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/s/ Xxxxxxxx X. Xxxxxx | |
| Name: Xxxxxxxx X. Xxxxxx | |||
| Title: Senior Vice President | |||
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By:
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/s/ Xxxxx Xxxx Xxxxx | |
| Name: Xxxxx Xxxx Xxxxx | |||
| Title: Executive Vice President & Corporate Manager | |||
