Exhibit 10.4(d)


 


THIRD AMENDMENT TO 

AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT


 


THIS
THIRD AMENDMENT TO AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT (this “Amendment”)
is made as of the 26th day of February, 2009, 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, 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.                                       Amendments to the Credit Agreement.


 


(a)                                  Section 1.2
of the Credit Agreement is hereby modified and amended, effective as of December 31,
2008, by deleting the definitions of “Adjusted Net Portfolio Value”, “Net
Worth” and “Qualified Subordinated Debt” in their entirety.


 


(b)                                 Section 1.2
of the Credit Agreement is hereby further modified and amended by deleting the
following paragraph:


 


““Maximum Advance
Amount” shall mean $100,000,000.”


 


and replacing it with the following:


 


““Maximum
Advance Amount” shall mean $50,000,000.”


 


(c)                                  Section 5.4
of the Credit Agreement is hereby amended and restated in its entirety as
follows, effective as of December 31, 2008, as follows:


 


1

















 


“5.4                           [Reserved].”


 


(d)                                 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 May 15, 2010 (the “Term”) unless sooner terminated as herein provided.”


 


2.                                       Conditions of Effectiveness.  This
Amendment shall become effective as of the date hereof when, and only when, Lender
shall have received:


 


(a)                                  a counterpart of this Amendment duly executed
by Borrower; and


 


(b)                                 such other information, documents, instruments
or approvals as Lender or Lender’s counsel may require.


 


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, as if such representation or warranty were made on and as of
the date of, and after giving effect to, this Amendment (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);


 


(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.


 


2

















 


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


 


(a)                                  Upon the effectiveness of this Amendment, 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.                                       Costs and Expenses. 
Borrower agrees to pay on demand all reasonable costs and expenses in
connection with the preparation, execution, delivery, administration,
modification and amendment of this Amendment and the other instruments and
documents to be delivered hereunder, including, without limitation, the
reasonable fees and out-of-pocket expenses of counsel for Lender with respect
thereto and with respect to advising Lender as to its rights and
responsibilities hereunder and thereunder.


 


6.                                       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.


 


7.                                       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.


 


[Remainder of page intentionally left blank]


 


3

















 


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/
  William M. Powell

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  William
  M. Powell

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  President
  and Chief Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

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

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Barry Blattman

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Barry
  Blattman

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  President

  



 


 


SIGNATURE
PAGE TO THIRD AMENDMENT TO 

AMENDED AND RESTATED LOAN AGREEMENT