Exhibit
10.1


 


FOURTH
AMENDMENT TO


AMENDED AND
RESTATED REVOLVING CREDIT AGREEMENT


 


THIS FOURTH AMENDMENT TO AMENDED AND RESTATED REVOLVING CREDIT
AGREEMENT (this “Amendment”) is made as of the 23rd day of February,
2010, between Crystal River Capital, Inc.,
a Maryland corporation (“Borrower”), and Brookfield US Corporation, f/k/a Brascan (US) Corporation (“Lender”).


 


W I T N E S S E T H:


 


WHEREAS, Borrower and Lender are parties to that certain Amended and
Restated Revolving Credit Agreement dated as of November 8, 2007, as
amended pursuant to that certain First Amendment to Amended and Restated
Revolving Credit Agreement dated as of March 7, 2008, as further amended
by that Second Amendment to Amended and Restated Revolving Credit Agreement
dated as of August 7, 2008, as further amended by that Third Amendment to
Amended and Restated Revolving Credit Agreement dated as of February 26,
2009 (as further amended, restated, supplemented or otherwise modified from
time to time, the “Credit Agreement”; unless otherwise defined herein,
all capitalized terms used in this Amendment shall have the meanings ascribed
to such terms in the Credit Agreement); and


 


WHEREAS, Borrower and Lender desire to amend the Credit Agreement as
hereinafter set forth;


 


NOW, THEREFORE, in consideration of the premises set forth above, the
terms and conditions contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties agree as follows:


 


1.             Lender Consent.  For purposes of the Credit Agreement, Lender
hereby consents to Borrower entering into and engaging in (a) a merger on
substantially the terms and conditions set forth in that certain Agreement and
Plan of Merger dated as of February 23, 2010 among Brookfield Asset Management Inc., B
Acquisition Sub Inc., and Borrower (the “Merger Agreement”), and (b) the
CMBS Sales and the Collateral Management Assignment,
as such terms are defined in the Merger Agreement.  Lender further agrees to take such further
action, at Borrower’s sole cost and expense, as may be necessary to release any
Lien it may have in any assets that constitute Collateral transferred in
connection with the CMBS Sales and the Collateral
Management Assignment.


 


2.             Amendment to the
Credit Agreement.  Section 12.1
of the Credit Agreement is hereby amended and restated in its entirety as
follows:


 


“12.1       Term. This Agreement, which shall inure to the benefit of and shall be
binding upon the respective successors and permitted assigns of Borrower and
Brascan, shall become effective on the date hereof and shall continue in full
force 


 

















 


and
effect until August 31, 2010 (the “Term”) unless sooner terminated
as herein provided; provided, however, that, notwithstanding the
foregoing, the Term shall expire upon the latest of (i) May 25,
2010, (ii) the Effective Time (as defined in the Merger Agreement) and (iii) thirty
(30) calendar days following the termination of the Merger Agreement, but in no
event later than August 31, 2010.”


 


3.             Representations
and Warranties of Borrower.  Borrower represents and warrants as
follows:


 


(a)           Borrower
is a corporation duly organized, validly existing and in good standing under
the laws of the State of Maryland;


 


(b)           The
execution, delivery and performance by Borrower of this Amendment are within
Borrower’s corporate powers, have been duly authorized by all necessary
corporate action and do not (i) contravene
Borrower’s charter or by-laws, or (ii) violate the law or any material
contractual restriction binding on or affecting Borrower;


 


(c)           No
authorization, approval or other action by, and no notice to or filing with,
any governmental authority or regulatory body is required for the due
execution, delivery and performance by Borrower of this Amendment;


 


(d)           Each
representation or warranty of Borrower set forth in the Credit Agreement is
hereby restated and reaffirmed as true and correct on and as of the date of
this Amendment, and after giving effect to this Amendment and the Merger
Agreement, as if such representation or warranty were made on and as of the
date of, and after giving effect to, this Amendment and the Merger Agreement
(except to the extent that any such representation or warranty expressly
relates to a prior specific date or period and except to the extent of changes
in facts or circumstances permitted by the terms of the Credit Agreement and
Lender’s consent in Section 1 of this Amendment);


 


(e)           This
Amendment constitutes the legal, valid and binding obligation of Borrower,
enforceable against Borrower in accordance with its terms; and


 


(f)            No
Default or Event of Default is existing.


 


4.             Reference to and
Effect on the Credit Agreement and the Other Documents.


 


(a)           On
and after the date hereof each reference in the Credit Agreement to “this
Agreement,” “hereunder,” “hereof” or words of like import referring to the
Credit Agreement, and each reference in the Other Documents to “the Credit
Agreement,” “thereunder,” “thereof” or words of like
import referring to the Credit Agreement, shall mean and be a reference to the
Credit Agreement as amended hereby.


 

















 


(b)           Except
as specifically amended above, the Credit Agreement and all Other Documents,
are and shall continue to be in full force and effect and are hereby in all
respects ratified and confirmed.  Borrower has no knowledge of any
challenge to Lender’s claims arising under the Credit Agreement or the Other
Documents or the effectiveness of the Credit Agreement or the Other Documents.


 


(c)           The
execution, delivery and effectiveness of this Amendment shall not, except as
expressly provided herein, operate as a waiver of any right, power or remedy of
Lender under any of the Credit Agreement or the Other Documents, nor constitute
a waiver of any provision of any of the Credit Agreement or the Other
Documents.  This Amendment shall not constitute a modification of the
Credit Agreement or a course of dealing with Lender at variance with the Credit
Agreement such as to require further notice by Lender to require strict
compliance with the terms of the Credit Agreement and the Other Documents in
the future, except as expressly set forth herein.


 


5.             Governing Law. 
This Amendment shall be governed by and construed in accordance with the laws
of the State of New York without regard to conflict of laws principles of such
state.


 


6.             Counterparts. 
This Amendment may be executed by one or more of the parties hereto on any
number of separate counterparts, each of which shall be deemed an original and
all of which, taken together, shall be deemed to constitute one and the same
instrument.  Delivery of an executed counterpart of this Amendment by
facsimile or electronic mail transmission shall be as effective as delivery of
a manually executed counterpart hereof.


 


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IN WITNESS WHEREOF, the parties hereto have caused their respective
duly authorized officers or representatives to execute and deliver this
Amendment as of the day and year first written above.


 


 


	
   

  	
  CRYSTAL RIVER CAPITAL, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Rodman L. Drake

  
	
   

  	
  Name:

  	
  Rodman
  L. Drake

  
	
   

  	
  Title:

  	
  President
  and Chief Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  BROOKFIELD US CORPORATION, F/K/A BRASCAN (US) CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Barry Blattman

  
	
   

  	
  Name:

  	
  Barry
  Blattman

  
	
   

  	
  Title:

  	
  President