Revolving Credit Agreement
Category: Credit
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
Amended and Restated Revolving Credit Agreement dated as of November 8, 2007, by and among CRYSTAL RIVER CAPITAL, INC., a corporation organized under the laws of the State of Maryland (“Borrower”), and BRASCAN (US) CORPORATION (“Brascan”), as Lender.
RECITALS:
WHEREAS, Borrower and Brascan are parties to a Revolving Credit Agreement, dated as of August 9, 2007 (as amended, restated, supplemented or otherwise modified from time to time prior to the date hereof, the “Prior Credit Agreement”);
WHEREAS, pursuant to the Prior Credit Agreement, Brascan agreed to make certain loans and other extensions of credit to Borrower;
WHEREAS, each of the parties hereto wishes to and agrees to amend and restate the Prior Credit Agreement on the terms and conditions set forth herein; and
WHEREAS, it is the intent of the parties hereto that this Agreement not constitute a novation of the obligations and liabilities under the Prior Credit Agreement or evidence payment of all or any of such obligations and liabilities, and that this Agreement amend and restate in its entirety the Prior Credit Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and undertakings herein contained, and for other good and valuable consideration, the Borrower and Brascan hereby agree as follows:
I. DEFINITIONS.
1.1 Accounting Terms. Where explicitly indicated, as used in this Agreement, the Other Documents or any certificate, report or other document made or delivered pursuant to this Agreement, accounting terms not defined in Section 1.2 or elsewhere in this Agreement and accounting terms partly defined in Section 1.2 to the extent not defined, shall have the respective meanings given to them under GAAP; provided, however, whenever such accounting terms are used for the purposes of determining compliance with financial covenants in this Agreement, such accounting terms shall be defined in accordance with GAAP as applied in preparation of the audited financial statements of Borrower for the fiscal year ended December 31, 2006.
1.2 General Terms. For purposes of this Agreement the following terms shall have the following meanings:
“Adjusted Net Portfolio Value” shall mean, at any time of determination, the fair value, as set forth in Borrower’s balance sheet 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.
“Advances” shall mean the advances made pursuant to Section 2.1 hereof.
“Affiliate” of any Person shall mean (a) any Person which, directly or indirectly, is in control of, is controlled by, or is under common control with such Person, or (b) any Person who is a director, managing member, general partner or officer (i) of such Person, (ii) of any Subsidiary of such Person or (iii) of any Person described in clause (a) above. For purposes of this definition, control of a Person shall mean the power, direct or indirect, (x) to vote more than 25% of the Equity Interests having ordinary voting power for the election of directors of such Person or other Persons performing similar functions for any such Person, or (y) to direct or cause the direction of the management and policies of such Person whether by ownership of voting securities, by contract, or otherwise, or owning or possessing the power to vote twenty five percent (25%) or more of any class of voting securities of any Person.
“Agreement” shall mean this Amended and Restated Revolving Credit Agreement, as the same may be amended, restated, supplemented or otherwise modified from time to time.
“Anti-Terrorism Laws” shall mean any Applicable Laws relating to terrorism or money laundering, including Executive Order No. 13224, the USA PATRIOT Act, the Applicable Laws comprising or implementing the Bank Secrecy Act, and the Applicable Laws administered by the United States Treasury Department’s Office of Foreign Asset Control (as any of the foregoing Applicable Laws may from time to time be amended, renewed, extended, or replaced).
“Applicable Law” shall mean all laws, rules and regulations applicable to the Person, conduct, transaction, covenant, Other Document or contract in question, including all applicable common law and equitable principles, all provisions of all applicable state, Federal and foreign constitutions, statutes, rules, regulations and orders of any Governmental Body, and all orders, judgments and decrees of all courts and arbitrators.
“Blocked Person” shall have the meaning set forth in Section 4.19(b) hereof.
“Borrower” shall have the meaning set forth in the preamble to this Agreement and shall extend to all permitted successors and assigns of such Person.
“Borrower’s Account” shall have the meaning set forth in Section 2.7 hereof.
“Borrowing Date” shall have the meaning set forth in Section 2.2(a) hereof.
“Brascan” shall have the meaning ascribed to such term in the preamble to this Agreement and shall include each Person which becomes a transferee, successor or assign of Brascan.
“Business Day” shall mean any day other than Saturday or Sunday or a legal holiday on which commercial banks are authorized or required by law to be closed for business in New York, New York and, if the applicable Business Day relates to any Eurodollar Rate Loans, such day must also be a day on which dealings are carried on in the London interbank market.
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“CERCLA” shall mean the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. §§9601 et seq.
“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.
“Closing Date” shall mean November 8, 2007.
“Code” shall mean the Internal Revenue Code of 1986, as the same may be amended or supplemented from time to time, and any successor statute of similar import, and the rules and regulations thereunder, as from time to time in effect.
“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.
“Compliance Certificate” shall mean a compliance certificate to be signed by the Chief Executive Officer, Chief Financial Officer, Chief Operating Officer, Controller or Treasurer of Borrower, which shall state that, based on an examination sufficient to permit such officer to make an informed statement, no Default or Event of Default exists, or if such is not the case, specifying such Default or Event of Default, its nature, when it occurred, whether it is continuing and the steps being taken by Borrower with respect to such default and, such certificate shall have appended thereto calculations which set forth Borrower’s compliance with the requirements or restrictions imposed by Section 5.4.
“Consents” shall mean all filings and all licenses, permits, consents, approvals, authorizations, qualifications and orders of Governmental Bodies and other third parties, domestic or foreign, necessary to carry on Borrower’s business or necessary (including to avoid a conflict or breach under any agreement, instrument, other document, license, permit or other authorization) for the execution, delivery or performance of this Agreement, the Other Documents, including any Consents required under all applicable Federal, state or other Applicable Law.
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