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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
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) &n
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