AMENDMENT NO. 2 TO MASTER REPURCHASE AGREEMENT
Exhibit
10.2
Execution
Version
AMENDMENT
NO. 2 TO
AMENDMENT
NO. 2 TO MASTER REPURCHASE AGREEMENT, dated as of August 15, 2007 (this
“Amendment”), by and among WACHOVIA BANK, NATIONAL ASSOCIATION. (the
“Buyer”) and CRYSTAL RIVER CAPITAL, INC. and CRYSTAL
RIVER CAPITAL TRS HOLDINGS, INC. (each a “Seller” and
collectively, the “Sellers”). Capitalized terms used but not
otherwise defined herein shall have the meanings given to them in the Existing
Agreement (as defined below).
RECITALS
Buyer
and
Sellers are parties to that certain Master Repurchase Agreement, dated August
15, 2005 (the “Master Repurchase Agreement”, and collectively with Annex
I thereto (“Annex I”), the “Existing Agreement”).
Buyer
and
Sellers have agreed to amend certain definitions and certain provisions of
the
Existing Agreement.
Therefore,
in consideration of the premises and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, Buyer and Sellers
hereby agree as follows:
SECTION
1. Amendments.
(a) Section
1 of Annex I to the Existing Agreement is hereby modified by deleting the
defined term “Maximum Amount” in its entirety and inserting the following
defined term in lieu thereof:
““Maximum
Amount” shall mean
$100,000,000.”
(b) Section
5(d)(i) of Annex I to the Existing Agreement is hereby modified by deleting
that
paragraph in its entirety and inserting the following paragraph in lieu
thereof:
“Interest
Coverage. Crystal River Capital, Inc. shall not permit, during
any Test Period, the ratio of (i) the sum of Operating Income at any time during
such Test Period to (ii) Interest Expense at any time during such Test Period
to
be less than 1.25 to 1.00. For purposes of this Section 5(d)(i) only,
“Operating Income” shall be defined as (x) Adjusted EBITDA excluding (y) the sum
of (i) realized gains and losses on sales of assets, (ii) realized and
unrealized gains and losses on derivatives, (iii) foreign currency exchange
gains and losses and (iv) gains or losses on impairment of assets.”
SECTION
2. Other Agreements.
(a) Buyer
and Sellers agree that, pursuant to Section 3(f) of the Existing Agreement,
the
Facility Termination Date is hereby extended to November 14,
2007.
Notwithstanding
anything to the contrary in the Existing Agreement, the extension described
in
the preceding sentence is deemed be the exercise of the one-time option
described in Section 3(f) of the Existing Agreement.
(b) Sellers
agree that, from the date of this Amendment until the Commitment Expiration
Date, no Mortgage Asset that represents an interest in residential real estate
shall be an Eligible Asset as defined in the Master Repurchase Agreement;
provided, however, that the foregoing shall not apply to any Purchased
Security currently subject to the Existing Agreement.
(c) Upon
execution of this Amendment, Sellers agree that a fee of $982,620 (which amount
is equal to two percent (2%) of the aggregate outstanding Repurchase Price
for
all Purchased Securities as of the date of this Amendment) is deemed to be
earned by Buyer, and such fee shall be payable to Buyer by Sellers on the new
Facility Termination Date described above.
SECTION
3. Representations and
Warranties. Seller hereby represents and warrants to Buyer, as of
the date hereof, that (i) each of the representations and warranties made by
the
Sellers pursuant to the Master Repurchase Agreement is true and correct in
all
material respects as if made on and as of the date of this Amendment; (ii)
the
Seller has performed in all material respects all agreements and satisfied
all
conditions that the Master Repurchase Agreement provides shall be performed
or
satisfied by the Seller; (iii) other than as described in the paragraph above,
no Event of Default has occurred and is continuing; and (iv) the Seller has
no,
and hereby waives all, defenses, rights of setoff, claims, counterclaims or
causes of action of any kind or description against the Buyer arising under
or
in respect of the Existing Agreement or any other related document.
SECTION
4. Limited Effect. Except as expressly
amended and modified by this Amendment, the Existing Agreement and each of
the
other related documents shall continue to be, and shall remain, in full force
and effect in accordance with their respective terms; provided,
however, that each reference to the “Master Repurchase Agreement” or
“Repurchase Agreement” in any of the related documents shall be deemed to be a
reference to the Existing Agreement as amended hereby.
SECTION
5. Counterparts. This Amendment may be
executed by each of the parties hereto on any number of separate counterparts,
each of which shall be an original and all of which taken together shall
constitute one and the same instrument. Delivery of an executed
counterpart of a signature page to this Amendment in Portable Document Format
(PDF) or by facsimile transmission shall be effective as delivery of a manually
executed original counterpart thereof.
SECTION
6. Expenses. Seller agrees to pay and
reimburse Buyer for all of the reasonable out-of-pocket costs and expenses
incurred by Buyer in connection with the preparation, execution and delivery
of
this Amendment, including, without limitation, the fees and disbursements of
Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel to Buyer.
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SECTION
7. GOVERNING LAW. THIS AMENDMENT SHALL BE
GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF
THE
STATE OF NEW YORK.
[SIGNATURES
FOLLOW]
-3-
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed and delivered as of the day and year first above written.
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WACHOVIA
BANK, NATIONAL ASSOCIATION
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By:
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/s/ Xxxx Xxxxxx | |
| Name: Xxxx Xxxxxx | |||
| Title: Director | |||
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By:
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/s/ Xxxxxxxx Xxx | |
| Name: Xxxxxxxx Xxx | |||
| Title: President | |||
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CRYSTAL
RIVER CAPITAL TRS HOLDINGS,
INC.
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By:
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/s/ Xxxxxxxx Xxx | |
| Name: Xxxxxxxx Xxx | |||
| Title: President | |||
