THIRD AMENDMENT
Exhibit
99.1
THIRD
AMENDMENT (this “Amendment”), dated as of
November 2, 2007, by and among CRYSTAL RIVER CAPITAL, INC., a corporation
organized under the laws of the State of Maryland (“Borrower”), and
SIGNATURE BANK (“Signature”) as a lender (in such capacity,
“Lender”) and as administrative agent (in such capacity,
“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 Lender 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, and by that certain Second
Amendment and Waiver, dated as of August 15, 2007 (as further amended, modified
or supplemented from time to time, the “Credit Agreement”);
WHEREAS,
Borrower has requested (i) a reduction of the Maximum Advance Amount in the
amount of $9,000,000 and (ii) the amendment of certain covenants under the
Credit Agreement;
WHEREAS,
Borrower has agreed to pledge certain assets to Agent, for benefit of Lender,
as
security for Borrower’s obligations under the Credit Agreement;
WHEREAS,
subject to the terms and conditions contained in this Amendment, the Credit
Agreement shall be amended 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 2 hereof), the Credit Agreement is hereby amended
as
follows:
(a) Section
1.2 of the Credit Agreement is hereby amended by deleting the definitions
“Adjusted Net Portfolio Value,” “Change of Control,” “Maximum Advance Amount,”
“Net Income,” “Net Worth,” “Ordinary Course of Business,” “Other Documents,”
“Permitted Encumbrances” and “Revolving Interest Rate” in their entirety and
substituting the following in lieu thereof:
“Adjusted
Net Portfolio Value” shall mean, at any time of determination, the fair
value, as set forth in the balance sheet of Borrower most recently delivered
pursuant to Section 8.4 or 8.5 hereof, of Borrower’s portfolio of
mortgage-backed securities, adjusted for a hypothetical 2.0% per annum increase
or decrease in interest rates and after giving effect to interest rate options,
swaps, caps or collar agreements with respect to such
portfolio.
“Change of Control” shall mean the occurrence of any event which results in Hyperion Brookfield Crystal River Capital Advisors, LLC, a
“Change of Control” shall mean the occurrence of any event which results in Hyperion Brookfield Crystal River Capital Advisors, LLC, a
wholly-owned indirect subsidiary of Brookfield Asset Management Inc., or another wholly-owned subsidiary of Brookfield Asset Management Inc. not acting as manager and advisor of Borrower.
“Maximum
Advance Amount” shall mean $12,000,000, which such amount may be increased
in accordance with Section 2.4(b) hereof.
“Net
Income” shall mean fiscal year-to-date after-tax net
income from continuing operations, including extraordinary
losses and extraordinary gains, all as determined in accordance with GAAP,
provided, however, that there shall be specifically excluded
therefrom (i) unrealized gains (or losses) on derivatives; and (ii) realized
and
unrealized gains (or losses, including non-cash impairment losses) on securities
available for sale.
“Net
Worth” at a particular date, shall mean (a) the aggregate amount of all
assets of Borrower as may properly be classified as such in accordance with
GAAP
consistently applied and such other assets as are properly classified as
“intangible assets”, less (b) the aggregate amount of all Indebtedness of
Borrower, plus (c) the principal amount of any Qualified Subordinated Debt
shown
on the last balance sheet of Borrower delivered pursuant to Section 8.4 or
8.5
hereof.
“Ordinary
Course of Business” shall mean, generally, the ordinary course of Borrower’s
business as conducted on the Third Amendment Effective Date.
“Other
Documents” shall mean the Revolving Credit Note, the Security Documents and
any and all other agreements, instruments and documents, now or hereafter
executed by Borrower and/or delivered to Agent or any Lender in respect of
the
transactions contemplated by this Agreement and the Security
Documents.
“Permitted
Encumbrances” shall mean (a) Liens for taxes, assessments or other
governmental charges not delinquent or being Properly Contested; (b) Liens
disclosed in the financial statements referred to in Section 4.5 hereof, the
existence of which Agent is deemed to have consented to in writing; (c) deposits
or pledges to secure obligations under worker’s compensation, social security or
similar laws, or under unemployment insurance; (d) deposits or pledges to secure
bids, tenders, contracts (other than contracts for the payment of money),
leases, statutory obligations, surety and appeal bonds and other obligations
of
like nature arising in the Ordinary Course of Business; (e) Liens arising by
virtue of the rendition, entry or issuance against Borrower or any Subsidiary,
or any property of Borrower or any Subsidiary, of any judgment, writ, order,
or
decree which has either been stayed or bonded, or which does not constitute
or
result in an Event of Default under Section 9.6 hereof;
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(f) common carriers’, mechanics’, workers’, materialmen’s or other like Liens arising in the Ordinary Course of Business with respect to obligations which are not due or which are being contested in good faith by Borrower; (g) Liens placed upon fixed assets hereafter acquired to secure a portion of the purchase price thereof, provided that any such lien shall not encumber any other property of Borrower; (h) Liens disclosed on Schedule 1.2; (j) Liens in favor of counterparties to repurchase agreements entered into in the Ordinary Course of Business; and (k) Liens created pursuant to the Security Documents.
“Revolving
Interest Rate” shall mean an interest rate per annum equal to (a) the Base
Rate with respect to Base Rate Loans; (b) the Fixed Rate plus 2.25% per annum
with respect to Fixed Rate Loans; and (c) the sum of the Eurodollar Rate plus
2.25% per annum with respect to Eurodollar Rate Loans.
(b) Section
1.2 of the Credit Agreement is hereby further amended by adding the following
definitions in their proper alphabetical sequence:
“Assignment
of Deed of Trust” shall mean that certain Assignment of Deed of Trust,
Security Agreement, Fixture Filing, Financing Statement and Assignment of Leases
and Rents, dated as of November 2, 2007, between Borrower and Agent, as the
same
may be amended, restated, supplemented or otherwise modified from time to
time.
“Collateral”
shall mean all property of Borrower, now owned or after acquired, upon which
a
Lien is purported to be created by any Security Document.
“Hedging
Agreement” shall mean all interest rate or currency swaps, caps or collar
agreements, foreign exchange agreements, commodity contracts, total return,
credit spread or credit swaps, credit default swaps, index swaps, option, future
or forward agreements, equity index or equity swap, option, future or forward
agreements, or similar arrangements entered into by Borrower providing for
protection against fluctuations in interest rates, currency exchange rates,
commodity prices or the exchange of nominal interest obligations, either
generally or under specific contingencies.
“Pledge
Agreement” shall mean that certain Pledge Agreement, dated as of November 2,
2007, between Borrower and Agent, as the same may be amended, restated,
supplemented or otherwise modified from time to time.
“Purchase
Money Indebtedness” shall mean (a) Indebtedness consisting of the deferred
purchase price of an investment or asset, conditional sale or other obligations
under any title retention agreement,
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installment
sales and other purchase money obligations, in each case where the maturity
of
such Indebtedness does not exceed the anticipated useful life of the investment
or asset being financed, and (b) Indebtedness incurred to finance the
acquisition by Borrower of such investment or asset; provided,
however, that any Lien arising in connection with any such Indebtedness
shall be limited to the specified investment or asset being financed; and
provided further, that such Indebtedness is incurred within
180 days after such acquisition by Borrower of such investment or
asset.
“Qualified
Subordinated Debt” shall mean the junior subordinated notes issued by
Borrower in March 2007 in the original principal amount of $51,500,000 and
due
in April 2037.
“Security
Documents” shall mean the Pledge Agreement, the Assignment of Deed of Trust
and any and all other agreements, instruments and documents, now or hereafter
executed by Borrower and/or delivered to Agent or any Lender in respect of
the
transactions contemplated by the Security Documents.
“Third
Amendment Effective Date” shall mean September 25, 2007.
(c) Sections
2.4(b), (c) and (d) of the Credit Agreement are hereby amended to read in their
entirety as follow:
(b) [Intentionally
Omitted.]
(c) [Intentionally
Omitted.]
(d) [Intentionally
Omitted.]
(d) Section
4.2(b) of the Credit Agreement is hereby amended to read in its entirety as
follow:
(b) The
only Subsidiaries of Borrower as of the Third Amendment Effective Date are
listed on Schedule 4.2(b).
(e) The
last
sentence of Section 4.5 of the Credit Agreement is hereby amended to read in
its
entirety as follow:
Since
August 31, 2007 there has been no change in the condition, financial or
otherwise, of Borrower or its Subsidiaries as shown on the consolidated balance
sheet as of such date, except changes in the Ordinary Course of Business, none
of which individually or in the aggregate has been materially
adverse.
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(f) Section
4.8(b) of the Credit Agreement is hereby amended to read in its entirety as
follow:
(b) Except
as disclosed in Schedule 4.8(b), Borrower has no pending or threatened
litigation, arbitration, actions or proceedings which could reasonably be
expected to have a Material Adverse Effect.
(g) Article
IV of the Credit Agreement is hereby amended by adding the following sections
to
the end thereof:
4.21 Ownership
of Collateral; Liens. Borrower has good title to, or a valid
interest in, the Collateral, and none of the Collateral is subject to any Lien
except Permitted Encumbrances.
4.22 Security
Documents. The Security Documents are effective to create in
favor of Agent, for the benefit of Lenders, a legal, valid and enforceable
security interest in the Collateral described therein and proceeds thereof,
which security interest will be perfected and prior and superior in right to
any
other Person upon the filing of appropriate financing statements and the
Assignment of Deed of Trust in the appropriate filing offices and the delivery
of the Promissory Note (as defined in the Pledge Agreement) in accordance with
the terms of the Pledge Agreement.
(h) Section
5.4(a) of the Credit Agreement is hereby amended to read in its entirety as
follows:
(a) Net
Worth. For each fiscal quarter of Borrower, maintain Net Worth in
an amount equal to not less than the greater of (i) $250,000,000 and (ii) ninety
percent (90%) of the Net Worth shown on the balance sheet of Borrower as of
September 30, 2007.
(i) Section
5.6 of the Credit Agreement is hereby amended to read in its entirety as
follows:
5.6 Payment
of Indebtedness. Pay, discharge or otherwise satisfy at or before
maturity (subject, where applicable, to specified grace periods and, in the
case
of trade payables, to normal payment practices) all its obligations and
liabilities of whatever nature (including, without limitation, Indebtedness
permitted to be incurred pursuant to Section 6.6 hereof), except when the
failure to do so could not reasonably be expected to have a Material Adverse
Effect or when the amount or validity thereof is currently being contested
in
good faith by appropriate proceedings and Borrower shall have provided for
such
reserves as Agent may reasonably deem proper and necessary.
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(j) Article
V
of the Credit Agreement is hereby amended by adding the following sections
to
the end thereof:
5.8 Further
Assurances. From time to time execute and deliver, or cause to be
executed and delivered, such additional instruments, certificates or documents,
and take such actions, as Agent may reasonably request for the purposes of
implementing or effectuating the provisions of this Agreement and the Other
Documents, or of more fully perfecting or renewing the rights of Agent and
Lenders with respect to the Collateral (or with respect to any additions thereto
or replacements or proceeds thereof or with respect to any other property or
assets hereafter acquired by Borrower which may be deemed to be part of the
Collateral) pursuant hereto or thereto. Upon the exercise by Agent or
any Lender of any power, right, privilege or remedy pursuant to this Agreement
or the Other Documents which requires any consent, approval, recording,
qualification or authorization of any Governmental Body, Borrower will execute
and deliver, or will cause the execution and delivery of, all applications,
certifications, instruments and other documents and papers that Agent or such
Lender may be required to obtain from Borrower for such consent, approval,
recording, qualification or authorization.
(k) Section
6.1 of the Credit Agreement is hereby amended to read in its entirety as
follows:
6.1 Prohibition
on Fundamental Changes. Enter into any transaction of merger or
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation, winding up or dissolution) or sell all or substantially
all of its assets; provided, however, that Borrower may merge or
consolidate with (x) any wholly owned Subsidiary, or (y) any other
Person if Borrower is the surviving corporation; and provided,
further, that, if after giving effect thereto, no Event of Default
would
exist hereunder. Borrower shall not change its fiscal year or method
of accounting without the consent of Agent, and Borrower shall give Agent at
least fifteen (15) days prior written notice of any such requested change,
which
notice shall include a detailed explanation of the changes intended to be made
and pro forma financial statements demonstrating the impact
thereof.
(l) Section
6.3 of the Credit Agreement is hereby amended to read in its entirety as
follows:
6.3 Guarantees. Become
liable upon the obligations or liabilities of any Person by assumption,
endorsement or guaranty thereof or otherwise (other than to Lenders) except
(a)
as disclosed on Schedule 6.3; (b) the endorsement of checks in the Ordinary
Course of Business;
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and
(c) guarantees of obligations of Subsidiaries of Borrower, provided
that such guarantees are entered into in the Ordinary Course of
Business.
(m) Section
6.5 of the Credit Agreement is hereby amended to read in its entirety as
follows:
6.5 Dividends. Declare,
pay or make any dividend or distribution on or in respect of any Equity
Interests of Borrower (other than dividends or distributions payable in its
stock, or split-ups or reclassifications of its stock) or apply any of its
funds, property or assets to the purchase, redemption or other retirement of
any
Equity Interests of Borrower if a Default or Event of Default shall have
occurred and be continuing, provided, however, that (i) Borrower
may repurchase up to two million shares of its common stock pursuant to a stock
repurchase plan that was announced on August 7, 2007 and (ii) after the
occurrence and during the continuation of a Default or Event of Default,
Borrower shall be permitted to make such declaration or payment necessary to
maintain its status as a real estate investment trust under Sections 856-860
of
the Code.
(n) Section
6.6 of the Credit Agreement is hereby amended to read in its entirety as
follows:
6.6 Indebtedness. Create,
incur, assume or suffer to exist any Indebtedness (exclusive of trade debt)
except in respect of (i) Indebtedness to Lenders; (ii) Indebtedness disclosed
on
Schedule 6.6; (iii) Indebtedness incurred to extend, renew or refinance
any Indebtedness described in clause (ii) above, provided that such
Indebtedness is in an aggregate principal amount not greater than the aggregate
principal amount of the Indebtedness being extended, renewed or refinanced;
(iv)
Indebtedness under repurchase agreements entered into in the Ordinary Course
of
Business; (v) Purchase Money Indebtedness; (vi) Indebtedness under Hedging
Agreements; and (vii) unsecured Indebtedness.
(o) Section
6.8 of the Credit Agreement is hereby amended to read in its entirety as
follows:
6.8 Transactions
with Affiliates. Directly or indirectly, purchase, acquire or
lease any property from, or sell, transfer or lease any property to, or
otherwise enter into any transaction or deal with, any Affiliate, except to
the
extent any of the foregoing are in the Ordinary Course of Business and on an
arm’s-length basis on terms and conditions no less favorable than terms and
conditions which would have been obtainable from a Person other than an
Affiliate.
(p) Article
VI of the Credit Agreement is hereby amended by adding the following sections
to
the end thereof:
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6.14 Limitation
on Liens. Create, incur, assume or suffer to exist any Lien upon
any Collateral, whether now owned or hereafter acquired, except for Liens
created pursuant to the Security Documents.
6.15 Limitation
on Disposition of Collateral. Sell, lease, assign,
convey, transfer
or otherwise dispose of any Collateral, whether now owned or hereafter
acquired, unless the proceeds of such sale, lease, assignment, conveyance,
transfer or other disposition (net of taxes payable and expenses incurred in
connection with such lease, assignment, conveyance, transfer or other
disposition) is in an amount that is at least equal to the principal amount
of
the Advances then outstanding and such net proceeds are either (i) pledged
to
Agent, for the benefit of Lenders, as collateral for such Advances pursuant
to
such documents as Agent reasonably requests or (ii) paid to Agent, for the
benefit of Lenders, to be applied to the payment in full of such Advances and
all accrued and unpaid interest on such Advances.
6.16 Limitation
on Negative Pledge Clauses. Enter into or suffer to exist or
become effective any agreement that prohibits or limits the ability of Borrower
to create, incur, assume or suffer to exist any Lien upon the Collateral,
whether now owned or hereafter acquired, to secure the Obligations, other than
this Agreement, the other Loan Documents and restrictions imposed by applicable
law, rule or regulation.
(q) Section
7.2 of the Credit Agreement is hereby amended by adding a new paragraph (d)
as
follows:
(d) Net
Worth. There has not have occurred since the end of the most
recently completed fiscal quarter of Borrower a material reduction in the Net
Worth of Borrower.
(r) Article
IX of the Credit Agreement is hereby amended by adding the following sections
to
the end thereof:
9.16 Security
Documents. Any of the Security Documents shall cease,
for any reason (other than pursuant to the terms hereof or thereof), to be
in
full force and effect, or Borrower shall so assert, or any Lien created by
any
of the Security Documents shall cease to be enforceable and of the same effect
and priority purported to be created thereby except to the extent that any
such
loss of perfection or priority results from the failure of Agent to maintain
possession of any instruments pledged under the Security Documents that were
actually delivered to it.
(s) Borrower’s
notice information in Section 14.6 of the Credit Agreement is hereby amended
to
read in its entirety as follows:
If
to
Borrower:
8
Three
World Financial Center
000
Xxxxx
Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000-0000
Attention: General
Counsel
Telephone: (000)
000-0000
Facsimile: (000)
000-0000
(t) Schedule
4.2(b) and Schedule 4.8(b) of the Credit Agreement are hereby amended to read
in
their entirety as set forth in Exhibit A and Exhibit B, respectively,
hereto.
Section
2. Conditions
Precedent. This Amendment shall be
effective as of September 25, 2007 (the “Effective Date”) upon the
satisfaction of the following conditions precedent:
(a) Signature
shall have received a duly executed counterpart of this Amendment and each
Security Document from Borrower;
(b) Signature
shall have received the Promissory Note (as defined in the Pledge Agreement),
together with duly executed instruments of transfer or assignment, endorsed
in
blank, in form and substance reasonably satisfactory to Agent;
(c) Each
document (including, without limitation, any UCC financing statement) required
by the Security Documents or under law or reasonably requested by the Agent
to
be filed, registered or recorded in order to create in favor of Agent, for
the
benefit of Lenders, a perfected Lien on the Collateral described therein, prior
and superior in right to any other Person, shall have been filed, registered
or
recorded or shall have been delivered to Agent in proper form for filing,
registration or recordation;
(d) Borrower
shall have executed and delivered to Signature a Revolving Credit Note in the
amount of $12,000,000 in exchange for the Revolving Credit Note previously
delivered to Signature;
(e) Agent
shall have received a Certificate of the Secretary or an Assistant Secretary
of
Borrower, dated the date hereof, certifying as to (i) Borrower’s Certificate of
Incorporation and By-Laws; (ii) resolutions by Borrower’s Board of Directors
authorizing the execution and delivery of this Amendment and the Security
Documents and the performance of the transactions contemplated hereby and
thereby and by the Credit Agreement as amended by this Amendment (as so amended,
the “Amended Credit Agreement”); and (iii) the incumbency of officers
authorized to sign this Amendment, the Security Documents and all other
documents and instruments executed or delivered in connection herewith and
therewith and the names and validity of signatures of such
officers;
(f) Agent
shall have received a closing certificate signed by the Chief Financial Officer
of Borrower dated as of the date hereof, stating that (i) all representations
and warranties set forth in this Amendment, the Amended Credit Agreement (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 on and as of such date, (ii) Borrower is
9
on
such
date in compliance with all the terms and provisions 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;
(g) Agent
shall have received an opinion or opinions of Borrower’s legal counsel,
addressed to Agent, in form and substance reasonably satisfactory to
Agent;
(h) Agent
shall have received good standing certificates for Borrower, issued by the
Secretary of State or other appropriate official of Borrower’s jurisdiction of
incorporation and each jurisdiction where the conduct of Borrower’s business
activities or the ownership of its properties necessitates
qualification;
(i) All
representations and warranties set forth in the Amended Credit Agreement (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;
(j) No
Default or Event of Default shall have occurred and be continuing on the date
hereof;
(k) 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;
(l) Agent
shall be reasonably satisfied that Borrower is in compliance with all pertinent
Federal, state, local or territorial regulations applicable to Borrower,
including those with respect to the Federal Occupational Safety and Health
Act,
the Environmental Protection Act, ERISA and the Trading with the Enemy
Act;
(m) 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
(n) Borrower
shall have paid any and all fees and expenses incurred by Agent and Lenders
in
connection with the preparation and execution of this Amendment.
Section
3. Representations
and Warranties. Borrower represents and
warrants to Agent and Lenders that:
(a) Borrower
has the corporate power, authority and legal right to execute and deliver this
Amendment, the Security Documents and the other instruments, agreements,
documents delivered in connection herewith and therewith and to perform its
obligations hereunder, thereunder and under the Amended Credit Agreement, and
has taken all actions necessary to authorize such execution, delivery and
performance;
10
(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, the Amended Credit
Agreement, the Security Documents and the other instruments, agreements,
documents and transactions contemplated hereby and thereby to which it is a
party, other than the filing of appropriate financing statements and the
Assignment of Deed of Trust in the appropriate filing offices and the delivery
of the Promissory Note (as defined in the Pledge Agreement) in accordance with
the terms of the Pledge Agreement;
(c) This
Amendment and the Security Documents have 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);
(d) No
Default or Event of Default has occurred and is continuing on the date
hereof;
(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 of
the Security Documents, nor the consummation of the transactions herein or
therein contemplated or contemplated by the Amended Credit Agreement, 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
4. General
Provisions.
(a) Except
as
herein expressly amended, the Credit Agreement 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.
11
(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 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) 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.
[Remainder
of page intentionally left blank]
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IN
WITNESS WHEREOF, each of Agent, Lender 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.
as
Borrower
By: /s/
Xxxxxxxx X. Xxx
Xxxxxxxx
X. Xxx
President
and Chief Executive Officer
SIGNATURE
BANK,
as
Lender and as Administrative Agent
By: /s/
Xxxxxx Xxxxxxx
Xxxxxx
Xxxxxxx
Group
Director and Senior Vice President
|
EXHIBIT
A
Schedule
4.2(b) - Subsidiaries
Crystal
River Capital TRS Holdings, Inc.
Crystal
River CDO 2005-1, Ltd.
Crystal
River CDO 2005-1 LLC
CRC
SPV
1, LLC
CRC
SPV
2, LLC
CRC
SPV
3, LLC
Crystal
River Resecuritization 2006-1 Ltd.
Crystal
River Resecuritization 2006-1 LLC
Crystal
River Preferred Trust I
CRZ
ABCP
Financing LLC
CRZ
Phoenix I LLC
CRZ
Houston I GP LLC
CRZ
Houston I LP
CRZ
Arlington I GP LLC
CRZ
Arlington I LP
EXHIBIT
B
Schedule
4.8(b) – Litigation
Litigation
None