Exhibit 10.1(c)


 


SUB-ADVISORY
AGREEMENT


 


This SUB-ADVISORY AGREEMENT is made as of March 3,
2009 (this “Agreement”) by and among Crystal River Capital, Inc., a
Maryland corporation (the “Company”), Hyperion Brookfield Crystal River Capital
Advisors, LLC, a Delaware limited liability company (the “Manager”), and
Hyperion Brookfield Asset Management, Inc., a Delaware corporation (the “Sub-Advisor”).


 


WITNESSETH:


 


WHEREAS, pursuant to the terms of a Management
Agreement, dated as of March 15, 2005 (as amended from time to time, the “Management
Agreement”), between the Company and the Manager, the Company has retained the
Manager for the purpose of providing day-to-day management and administrative
services to the Company;


 


WHEREAS, the Manager desires to retain the
Sub-Advisor for the purpose of providing certain investment advisory services
to the Manager in connection with the Manager’s service as the manager of the
Company; and


 


WHEREAS, the Sub-Advisor is willing to render such
services on the terms and conditions hereinafter set forth.


 


AGREEMENT


 


NOW, THEREFORE, in consideration of the mutual
agreements herein set forth, the parties hereto agree as follows:


 


1.                                       Definitions.


 


(a)                                  “Affiliate”
shall mean, with respect to any Person, any Person Controlling, Controlled by,
or under common Control with, such Person.


 


(b)                                 “Agreement”
has the meaning assigned in the first paragraph.


 


(c)                                  “Applicable Asset” has the meaning assigned
in Section 2(a).


 


(d)                                 “Board
of Directors” means the Board of Directors of the Company.


 


(e)                                  “Closing Price” means, with respect to any
security on any date, the last reported sale price for such security,
regular way, or, in case no such sale takes place on such day, the average of
the closing bid and asked prices, regular way, for such security, in either
case as reported in the principal consolidated transaction reporting system
with respect to securities listed or admitted to trading on the New York Stock
Exchange (the “NYSE”) or, if
such security is not listed or admitted to trading on the NYSE, as reported on
the principal consolidated transaction reporting system with respect to
securities listed on the principal national securities exchange on which such
security is listed or admitted to trading or, if such security is not listed or
admitted to trading on any national securities exchange, the last quoted price,
or, if not so


 

















 


quoted, the average of
the high bid and low asked prices in the over-the-counter market, as reported
by the National Association of Securities Dealers, Inc. Automated
Quotation System or, if such system is no longer in use, the principal other
automated quotation system that may then be in use or, if such security is not
quoted by any such organization, the average of the closing bid and asked
prices as furnished by a professional market maker making a market in such
security selected by the Sub-Advisor or, in the event that no trading price is
available for such security, the fair market value of such security, as
determined in good faith by the Sub-Advisor pursuant to its institutional
pricing policies and procedures.


 


(f)                                    “Code” means the Internal Revenue Code of
1986, as amended.


 


(g)                                 “Company” has the meaning assigned in the
first paragraph; provided that all references herein to the Company
shall, except as otherwise expressly provided herein, be deemed to include any
Subsidiaries of Crystal River Capital, Inc.


 


(h)                                 “Company Account” has the meaning assigned in
Section 5.


 


(i)                                     “Control”
shall mean, the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of another Person without the
consent or approval of any other Person.


 


(j)                                     “Exchange Act” means the Securities Exchange
Act of 1934, as amended, and the rules and regulations promulgated
thereunder.


 


(k)                                  “GAAP” means generally accepted accounting
principles in effect in the U.S. on the date such principles are applied
consistently.


 


(l)                                     “Governing Instruments” means, with respect
to any Person, the articles of incorporation and bylaws in the case of a corporation,
the certificate of limited partnership (if applicable) and partnership
agreement in the case of a general or limited partnership or the articles of
formation and operating agreement in the case of a limited liability company.


 


(m)                               “Hyperion Brookfield” means Hyperion Brookfield
Asset Management, Inc.


 


(n)                                 “Investment Company Act” means the Investment
Company Act of 1940, as amended.


 


(o)                                 “Investment Guidelines” means the general
parameters and policies relating to Investments as established by the Board of
Directors as the same may be modified from time-to-time.


 


(p)                                 “Investments” means the investments of the
Company.


 


(q)                                 “Manager” has the meaning assigned in the
first paragraph.


 


(r)                                    “Market
Value” means, with respect to any security, the Closing Price for such security
on such date. The “Closing Price” on any date shall mean the last reported sale


 


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price for the applicable security,
regular way, or, in case no such sale takes place on such day, the average of
the closing bid and asked prices, regular way, for such security, in either
case as reported in the principal consolidated transaction reporting system
with respect to securities listed or admitted to trading on the New York Stock
Exchange (the “NYSE”) or, if such security is not listed or admitted to trading
on the NYSE, as reported on the principal consolidated transaction reporting
system with respect to securities listed on the principal national securities
exchange on which such security is listed or admitted to trading or, if such security
is not listed or admitted to trading on any national securities exchange, the
last quoted price, or, if not so quoted, the average of the high bid and low
asked prices in the over-the-counter market, as reported by the National
Association of Securities Dealers, Inc. Automated Quotation System or, if
such system is no longer in use, the principal other automated quotation system
that may then be in use or, if such security is not quoted by any such
organization, the average of the closing bid and asked prices as furnished by a
professional market maker making a market in such security selected by the Sub-Advisor
or, in the event that no trading price is available for such security, the fair
market value of such security, as determined in good faith by the Sub-Advisor
pursuant to its institutional pricing policies and procedures.


 


(s)                                  “Person” means any individual, corporation,
partnership, joint venture, limited liability company, estate, trust, unincorporated
association, any federal, state, county or municipal government or any bureau,
department or agency thereof and any fiduciary acting in such capacity on
behalf of any of the foregoing.


 


(t)                                    “REIT” means a corporation or trust which
qualifies as a real estate investment trust in accordance with Sections 856
through 860 of the Code and the Treasury Regulation promulgated thereunder.


 


(u)                                 “Sub-Advisor” has the meaning assigned in the
first paragraph.


 


(v)                                 “Sub-Advised Portfolio” has the meaning assigned
in Section 2(a).


 


(w)                               “Subsidiary” means any subsidiary of the
Company, any partnership, the general partner of which is the Company or any
subsidiary of the Company and any limited liability company, the managing
member of which is the Company or any subsidiary of the Company.


 


(x)                                   “Treasury
Regulations” means the Procedures and Administration Regulations promulgated by
the U.S. Department of Treasury under the Code, as amended.


 


2.                                       Retention and Duties of
Sub-Advisor.


 


(a)                                  The Manager hereby retains the Sub-Advisor as
its investment advisor with respect to the investment of a portion of the
Company’s assets in mortgage-backed securities and other real estate assets as
designated from time to time by the Manager (each an “Applicable Asset”) and to
provide investment research and advice with respect to, supervise and arrange
the purchase of Applicable Assets for, and the sale of Applicable Assets held
in, the Company’s investment portfolio (the portion of the Company’s portfolio
consisting of the Applicable Assets is referred to herein as the “Sub-Advised
Portfolio”), subject to the further


 


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terms
and conditions set forth in this Agreement, and the Sub-Advisor hereby agrees
to perform each of the duties set forth herein in accordance with the
provisions of this Agreement.


 


(b)                                 Subject to the further terms and conditions
set forth in this Agreement, the Sub-Advisor will perform (or cause to be
performed) such services and activities relating to the Sub-Advised Portfolio
as is appropriate, including:


 


(i)                                     acting as investment adviser for, and
supervising and managing the investment and reinvestment of, the Sub-Advised
Portfolio and, in connection therewith, making recommendations relating to the
purchase and sale of Applicable Assets for the Company and relating to the
vote, exercise of consents, and exercise of all other rights appertaining to
such assets owned by the Company;


 


(ii)                                  supervising continuously the investment
program of the Company and the composition of its investment portfolio only as
such program and portfolio pertain to the Applicable Assets; and


 


(iii)                               arranging for the purchase and sale of
Applicable Assets held in the Sub-Advised Portfolio.


 


(c)                                  In the performance of its duties under this Agreement,
the Sub-Advisor shall at all times conform to, and act in accordance with, any
requirements imposed by (i) the provisions of the Investment Advisers Act
of 1940, as amended (the “Act”), and any rules or regulations in force
thereunder, (ii) the Investment Guidelines and other policies adopted and
implemented by the Board of Directors; (iii) any other written directions
of the Board of Directors or authorized officers of the Company; (iv) any
policies or written directions of the Manager; and (v) any other
applicable provision of law, including federal, state, county or city
regulations.


 


(d)                                 The
Manager will have sole and absolute discretion to determine the amount or
percentage of the Company’s assets to be invested in Applicable Assets. Subject
to Section 7(a), the Sub-Advisor shall recommend for investment that
portion of the Company’s assets designated by the Manager for Applicable Assets
as soon as practicable or at such later time as the Manager may direct after
such funds are made available for investment. From time to time, the Manager
may, subject to the Investment Guidelines, determine to increase or decrease
the amount or percentage of the Company’s assets to be invested in Applicable
Assets. If the Manager determines to increase such amount or percentage, the
Sub-Advisor shall recommend for investment such additional funds in Applicable
Assets as soon as practicable, or at such later time as the Manager may,
subject to the Investment Guidelines, direct, after (i) notice of such
increase is given to the Sub-Advisor and (ii) such additional funds are
made available for investment. If, on the other hand, the Manager determines to
decrease such amount or percentage, the Sub-Advisor shall, as soon as
practicable, or at such later time as the Manager may direct, after notice of
such decrease is given to the Sub-Advisor, liquidate that portion of the
Sub-Advised Portfolio required for the Sub-Advised Portfolio to represent the
desired amount or percentage of the Company’s assets and cause such liquidated
assets to be available to the Manager.


 


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(e)                                  Financing
assets in the Sub-Advised Portfolio and related hedging of exposure, if any,
will be undertaken by the Manager in consultation with the Sub-Advisor.


 


The Sub-Advisor is authorized, for the purchase and sale of the
securities in the Sub-Advised Portfolio, to employ such securities dealers as
may, in the judgment of the Sub-Advisor, implement the policy of the Company to
obtain the best net results taking into account such factors as price,
including dealer spread, the size, type and difficulty of the transaction
involved, the firm’s general execution and operational facilities and the firm’s
risk in positioning the securities involved. Consistent with this policy, the
Sub-Advisor is authorized to direct the execution of the Sub-Advised Portfolio
transactions to dealers and brokers furnishing statistical information or
research deemed by the Sub-Advisor to be useful or valuable to the performance
of its investment advisory functions for the Sub-Advised Portfolio.


 


(g)                                 The
cash and Applicable Assets managed by the Sub-Advisor on behalf of the Company
shall be held by the Company’s custodian, which initially shall be Credit
Suisse First Boston LLC (the “Custodian”), which the Sub-Advisor represents has
no affiliation with the Sub-Advisor and which the Manager hereby represents has
agreed to act in accordance with the Sub-Advisor’s instructions, as sole
custodian for the cash and Applicable Assets allocated by the Manager to the
Sub-Advisor. The Sub-Advisor may give
proper instructions to the Custodian in connection with the purchase or sale of
Applicable Assets. The Manager, upon
the Sub-Advisor’s request, shall confirm such authority of such custodian. The
Sub-Advisor shall at no time have custody, possession or direct control of the
Applicable Assets and cash in the investment account. In addition, the
Sub-Advisor shall not be liable for any act or omission of the Custodian. The
Sub-Advisor shall give instructions to the Custodian in writing or orally, but
if instructions are given orally, the Sub-Advisor shall confirm them in writing
or by facsimile as soon as practicable thereafter. The Manager shall instruct
the Custodian to provide the Sub-Advisor with such periodic reports concerning
the status of the Applicable Assets as the Sub-Advisor may reasonably request
from time to time. The Manager will provide the Sub-Advisor with reasonable
prior notice of a change in the Custodian by the Company.


 


(h)                                 The
Sub-Advisor shall assist the Manager in the preparation of ongoing reports to
the Board of Directors that review the Company’s acquisitions of Applicable
Assets, portfolio composition and characteristics, credit quality, performance
and compliance with the Investment Guidelines and policies approved by the
Board of Directors.


 


(i)                                     The
Sub-Advisor shall cooperate with the Manager and the Company in all matters
pertaining to its performance hereunder and under agreements among the Manager,
the Company and other sub-advisors, including, without limitation: (i) timely reporting of
all transaction information; (ii) responding in a timely manner to all
reasonable requests for information from the Manager and the Company and (iii) meeting
with staff of the Manager and the Company as requested.


 


(j)                                     The Sub-Advisor shall not be required to
expend money in excess of that contained in any applicable Company Account or
otherwise made available by the Company to be expended by the Sub-Advisor
hereunder.


 


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(k)                                  In performing its duties under this Section 2,
the Sub-Advisor shall be entitled to rely on qualified experts and
professionals (including, without limitation, accountants, legal counsel and
other professional service providers) hired by the Sub-Advisor at the Company’s
sole cost and expense.


 


(l)                                     The Company shall pay all expenses, and
reimburse the Sub-Advisor for the Sub-Advisor’s expenses incurred on its
behalf, in connection with any such services to the extent such expenses are
reimbursable by the Company to the Sub-Advisor pursuant to Section 9
herein.


 


3.                                       Dedication; Other Activities.


 


(a)                                  The Sub-Advisor shall cause its officers and
employees to devote such portion of their time to the provision of services to
the Manager as the Sub-Advisor deems reasonably necessary and appropriate for
the proper performance of all of the Sub-Advisor’s duties hereunder,
commensurate with the level of activity of the Company from time to time. The
Company and the Manager shall have the benefit of the Sub-Advisor’s reasonable
judgment and effort in rendering services and, in furtherance of the foregoing,
the Sub-Advisor shall not undertake activities which, in its reasonable
judgment, will substantially adversely affect the performance of its
obligations under this Agreement.


 


(b)                                 Except to the extent set forth in
clause (a) above, nothing herein shall prevent the Sub-Advisor or any
of its Affiliates or any of the officers and employees of any of the foregoing
from engaging in other businesses or from rendering services of any kind to any
other Person, including investment in, or advisory services to others investing
in, any type of real estate, real estate-related investment or non-real
estate-related instrument, including investments which meet the principal
investment objectives of the Company.


 


4.                                       Agency; Authority. Subject to Section 7(a), the
Sub-Advisor shall act as the agent of the Company in originating, acquiring,
financing and disposing of Applicable Assets and, in connection therewith,
disbursing and collecting the Company’s funds, paying the debts and fulfilling
the obligations of the Company, supervising the performance of professionals
engaged by or on behalf of the Company and handling, prosecuting and settling
any claims of or against the Company, the Board of Directors, holders of the
Company’s securities or the Company’s representatives or assets and the
Sub-Advisor shall have the right to exercise all powers and authority which are
reasonably necessary and customary to perform its obligations under this
Agreement provided that all transactions in Applicable Assets shall require the
approval of the Manager and, as required by Section 7(a) herein, the
Board of Directors.


 


5.                                       Bank Accounts. At the direction of the Board of Directors
and the Manager, the Sub-Advisor may establish and maintain as an agent on
behalf of the Company one or more bank accounts in the name of the Company or
any other Subsidiary (any such account, a “Company Account”), collect and
deposit funds into any such Company Account and disburse funds from any such
Company Account, under such terms and conditions as the Board of Directors and
the Manager may approve. The Sub-Advisor shall from time-to-time render
appropriate accountings of such collections and payments to the Board of
Directors, the Manager and, upon request, to the auditors of Company.


 


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6.                                       Book and Records;
Confidentiality.


 


(a)                                  The Sub-Advisor shall maintain appropriate
books of account, records data and files (including without limitation,
computerized material) (collectively, “Records”) relating to the Company and
the Applicable Assets generated or obtained by the Sub-Advisor in performing
its obligations under this Agreement, and such Records shall be accessible for
inspection by representatives of the Company and the Manager at any time during
normal business hours. The Sub-Advisor shall have full responsibility for the
maintenance, care and safekeeping of all Records.


 


(b)                                 The Sub-Advisor shall keep confidential any
nonpublic information obtained in connection with the services rendered under
this Agreement and shall not disclose any such information (or use the same
except in furtherance of its duties under this Agreement), except: (i) to
the Manager and Hyperion Brookfield; (ii) with the prior written consent
of the Board of Directors and the Manager; (iii) to legal counsel, accountants
and other professional advisors; (iv) to appraisers, financing sources and
others in the ordinary course of the Company’s business of investing in
Applicable Assets; (v) to governmental officials having jurisdiction over
the Company; (vi) in connection with any governmental or regulatory
filings of the Company or disclosure or presentations to Company investors or (vii) as
required by law or legal process to which the Sub-Advisor or any Person to whom
disclosure is permitted hereunder is a party. The foregoing shall not apply to
information which has previously become available through the actions of a
Person other than the Sub-Advisor not resulting from Sub-Advisor’s violation of this Section 6(b). The
provisions of this Section 6(b) shall survive the expiration or
earlier termination of this Agreement for a period of one year.


 


7.                                       Restrictions; Other Obligations.


 


(a)                                  The
Company shall not acquire any Investment from, sell any Investment to, or
engage in any co-investment with, any proprietary account of Hyperion
Brookfield, its principals, the Manager, the Sub-Advisor or any of their
respective Affiliates without the approval of the Board of Directors. The
Company shall not make any Investment in any collateralized debt obligation or
investment fund managed by Hyperion Brookfield, other than those structured or
co-structured on the Company’s behalf.


 


(b)                                 The
Sub-Advisor shall maintain “errors and omissions” insurance coverage and such
other insurance coverage which is customarily carried by property, asset and
investment managers performing functions similar to those of the Sub-Advisor
under this Agreement with respect to assets similar to the Applicable Assets,
in an amount which is comparable to that customarily maintained by other
managers or servicers of similar assets.


 


8.                                       Compensation. The Manager shall pay the
Sub-Advisor an annual investment advisory fee (the “Sub-Advisory Fee”) equal to
0.75% of the Market Value of (i) the Applicable Assets held by the Company
less (ii) the carrying value in the Company’s financial statements of the liabilities
of the Company’s two collateralized debt obligation structures, the March 2007
issuance of trust preferred securities and any other financing used to finance
the Applicable Assets (all such indebtedness, the “Applicable Liabilities”);
provided that in no event for any fiscal quarter of the Company shall the
Sub-Advisory Fee be more than the greater of (x) 50% of


 


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all base management fees
and incentive management fees paid to the Manager for such period as calculated
pursuant to the Management Agreement and (y) an amount calculated as (A) the
base management fee for such period as calculated pursuant to the Management
Agreement multiplied by (B) a fraction, the numerator of which is the
Market Value of the Applicable Assets less the Market Value of the Applicable
Liabilities, and the denominator of which is the stockholders’ equity of the
Company as of the last date of such quarter, calculated in accordance with the
Management Agreement. The investment advisory fee shall be paid quarterly in
arrears in the same kind of consideration in which any base management fee and
any incentive management fee is paid to the Manager for such period. The
Sub-Advisor shall make available the quarterly calculation of the investment
advisory fee to the Manager as reasonably as practicable following the last day
of each calendar quarter, and the Manager shall pay the investment advisory fee
for such quarter within 20 business days after its receipt thereof.


 


9.                                       Expenses. Each of the Company, the Manager and the
Sub-Advisor shall bear all of its respective operating expenses, except
those specifically required to be borne by the Manager under the Management
Agreement and those required to be borne by the Sub-Advisor. The expenses
required to be paid by the Company include, but are not limited to:


 


(a)                                  issuance
and transaction costs incident to the acquisition, disposition and financing of
Investments;


 


(b)                                 legal,
regulatory, compliance, tax, accounting, consulting, auditing and
administrative fees and expenses;


 


(c)                                  the
compensation and expenses of the Company’s directors and the cost of liability
insurance to indemnify the Company’s directors and officers;


 


(d)                                 the
costs associated with the establishment and maintenance of any credit
facilities and other indebtedness of the Company (including commitment fees,
accounting fees, legal fees, closing costs, etc.);


 


(e)                                  expenses
associated with other securities offerings of the Company;


 


(f)                                    expenses
relating to the payment of dividends;


 


(g)                                 expenses
connected with communications to holders of the Company’s securities and in
complying with the continuous reporting and other requirements of the
Securities and Exchange Commission and other governmental bodies;


 


(h)                                 transfer
agent and exchange listing fees;


 


(i)                                     the
costs of printing and mailing proxies and reports to the Company’s stockholders;


 


(j)                                     costs
associated with any computer software or hardware, electronic equipment, or
purchased information technology services from third party vendors that is used
solely for the Company;


 


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(k)                                  costs
and out of pocket expenses incurred by directors, officers, employees or other
agents of the Manager for travel on the Company’s behalf;


 


(l)                                     the
costs and expenses incurred with respect to market information systems and
publications, research publications and materials;


 


(m)                               settlement,
clearing, and custodial fees and expenses;


 


(n)                                 the
costs of maintaining compliance with all federal, state and local rules and
regulations, including securities regulations, or any other regulatory agency,
all taxes and license fees and all insurance costs incurred on the Company’s
behalf; and


 


(o)                                 expenses
relating to any office or office facilities, including disaster backup recovery
sites and facilities maintained for the Company or separate from offices of the
Manager or the Sub-Advisor.


 


In
addition, the Company will be required to pay its pro rata
portion of rent, telephone, utilities, office furniture, equipment, machinery
and other office, internal and overhead expenses of the Sub-Advisor and its
Affiliates required for the Company’s operations.


 


The Sub-Advisor is not entitled to be reimbursed for
wages, salaries and benefits of its officers and employees. Subject to any
required approval of the Board of Directors and/or the Manager, the Sub-Advisor
may retain third parties including accountants, legal counsel, real estate
underwriters, brokers, among others, on the Company’s behalf, and be reimbursed
for such services. The provisions of this Section 9 shall survive the
expiration or earlier termination of this Agreement to the extent such expenses
have previously been incurred or are incurred in connection with such
expiration or termination.


 


10.                                 Expense Reports and
Reimbursements. The
Sub-Advisor shall prepare a statement documenting the operating expenses of the
Company incurred by the Sub-Advisor on behalf of the Company during each fiscal
quarter, and deliver the same to the Company and the Manager within 45 days
following the end of the applicable fiscal quarter. Such expenses shall be
reimbursed by the Company within 45 days following delivery of the expense
statement by the Sub-Advisor; provided, however, that such
reimbursements may be offset by the Sub-Advisor against amounts due to the
Company from the Sub-Advisor. The provisions of this Section 10 shall
survive the expiration or earlier termination of this Agreement.


 


11.                                 Limits of Manager
Responsibility; Indemnification.


 


(a)                                  Pursuant
to this Agreement, the Sub-Advisor will not assume any responsibility other
than to render the services called for hereunder and will not be responsible
for any action of the Board of Directors or the Manager in following or declining
to follow its advice or recommendations. The Sub-Advisor, its directors,
officers, managers and employees will not be liable to the Company, any
Subsidiary, the Manager, any of their directors, officers, stockholders,
managers, owners or partners for acts or omissions performed or not performed
in accordance with and pursuant to this Agreement, except by reason of acts or
omissions


 


9

















 


constituting bad faith,
willful misconduct, gross negligence or reckless disregard of the Sub-Advisor’s
duties under this Agreement.


 


(b)                                 The
Company hereby agrees to indemnify, defend and hold harmless the Sub-Advisor,
the Manager and their respective Affiliates, officers, directors, members,
managers, employees, agents, successors and assigns from and against all
liabilities, judgments, costs, charges, losses, expenses and claims, including
attorneys’ fees, charges and expenses and expert witness fees, of any nature,
kind or description, arising out of claims by third parties based on acts or
omissions of the Sub-Advisor performed or not performed in accordance with and
pursuant to this Agreement, except (i) to the extent caused by or
resulting from acts or omissions constituting bad faith, willful misconduct,
gross negligence or reckless disregard of the Sub-Advisor’s duties under this
Agreement, as determined pursuant to a final, non-appealable order of a court
of competent jurisdiction or (ii) claims by the Sub-Advisor’s employees
relating to the terms and conditions of their employment with the Sub-Advisor.


 


(c)                                  The
Sub-Advisor hereby agrees to indemnify the Company, the Manager and their respective
directors and officers with respect to all liabilities, judgments, costs,
charges, losses, expenses and claims, including attorney’s fees, charges and
expenses and expert witness fees, of any nature, kind or description, arising
out of (i) claims by third parties based on acts or omissions of the
Sub-Advisor performed or not performed in accordance with and pursuant to this
Agreement constituting bad faith, willful misconduct, gross negligence or
reckless disregard of the Sub-Advisor’s duties under this Agreement, as
determined pursuant to a final, non-appealable order of a court of competent
jurisdiction or (ii) claims by the Sub-Advisor’s employees relating to the
terms and conditions of their employment with the Sub-Advisor.


 


(d)                                 The
party seeking indemnity (“Indemnitee”) will promptly notify the party against
whom indemnity is claimed (“Indemnitor”) of any claim for which it seeks
indemnification; provided, however, that the failure to so notify the
Indemnitor will not relieve Indemnitor from any liability which it may have
hereunder, except to the extent such failure actually prejudices Indemnitor. The
Indemnitor shall have the right to assume the defense and settlement of such
claim; provided that, Indemnitor notifies Indemnitee of its election to assume
such defense and settlement within thirty (30) days after the Indemnitee gives
the Indemnitor notice of the claim. In such case the Indemnitee will not settle
or compromise such claim, and the Indemnitor will not be liable for any such
settlement made without its prior written consent. If Indemnitor is entitled
to, and does, assume such defense by delivering the aforementioned notice to
Indemnitee, Indemnitee will (i) have the right to approve Indemnitor’s
counsel (which approval will not be unreasonably withheld or delayed), (ii) be
obligated to cooperate in furnishing evidence and testimony and in any other
manner in which Indemnitor may reasonably request and (iii) be entitled to
participate in (but not control) the defense of any such action, with its own
counsel and at its own expense.


 


(e)                                  Reasonable
expenses (including attorney’s fees) incurred by an Indemnitee in defense or
settlement of a claim that may be subject to a right of indemnification
hereunder may be advanced by the Company to such Indemnitee as such expenses
are incurred prior to the final disposition of such claim; provided that,
Indemnitee undertakes to repay such


 


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amounts if its shall be
determined ultimately by a court of competent jurisdiction that Indemnitee was
not entitled to be indemnified hereunder.


 


(f)                                    The
Sub-Advisor shall remain entitled to exculpation from the Company and the
Manager and indemnification from the Company pursuant to this Section 11
(subject to the limitations set forth herein) with respect to any matter
arising prior to the termination of this Agreement and shall have no liability
to the Company or the Manager in respect of any matter arising after such
termination unless such matter arose out of events or circumstances that
occurred prior to such termination.


 


12.                                 No Joint Venture. Nothing in this Agreement shall be
construed to make the Company, the Manager and the Sub-Advisor partners or
joint venturers or impose any liability as such on either of them.


 


13.                                 Term; Termination.


 


(a)                                  This Agreement shall become effective on the
date first set forth above. This Agreement may be terminated by the Sub-Advisor
at any time without penalty upon giving the Manager 60 days’ prior written
notice (which notice may be waived by the Manager), and may be terminated by
the Manager at any time without penalty upon giving the Sub-Advisor 30 days’
prior written notice (which notice may be waived by the Sub-Advisor). This
Agreement shall terminate automatically (i) immediately upon termination
of the Management Agreement or (ii) in the event of its assignment (as “assignment”
is defined in the Investment Advisers Act of 1940).


 


(b)                                 If this Agreement is terminated pursuant to
this Section 13, such termination shall be without any further liability
or obligation of either party to the other, except as otherwise expressly
provided herein.


 


14.                                 Action Upon Termination or
Expiration of Origination Period. From and after the effective date of termination of this Agreement
pursuant to Section 13 herein, the Sub-Advisor shall not be entitled to
compensation for further services under this Agreement but shall be paid all
compensation accruing to the date of termination, reimbursement for all operating
expenses of the Company borne by the Sub-Advisor for the benefit of the Company and a termination fee, if applicable. Upon
such termination or expiration, the Sub-Advisor shall reasonably promptly:


 


(a)                                  after deducting any accrued compensation and
reimbursement for all expenses to which it is then entitled, pay over to the
Company all money collected and held for the account of the Company pursuant to
this Agreement;


 


(b)                                 deliver to the Board of Directors and the
Manager a full accounting, including a statement showing all payments collected
and all money held by it, covering the period following the date of the last
accounting furnished to the Board of Directors and the Manager with respect to
the Company and through the termination date; and


 


(c)                                  deliver to the Manager all property and
documents of the Company provided to or obtained by the Sub-Advisor pursuant to
or in connection with this Agreement,


 


11

















 


including
all copies and extracts thereof in whatever form, then in the Sub-Advisor’s
possession or under its control.


 


15.                                 Assignment. None of the parties hereto may assign its
duties under this Agreement.


 


16.                                 Notices. Unless expressly provided otherwise in this
Agreement, all notices, requests, demands and other communications required or
permitted under this Agreement shall be in writing and shall be deemed to have
been duly given, made and received when delivered against receipt or upon
actual receipt of (a) personal delivery, (b) delivery by a reputable
overnight courier, (c) delivery by facsimile transmission against
answerback or (d) delivery by registered or certified mail, postage
prepaid, return receipt requested, addressed as set forth below:


 


	
  If to the Company:

  	
   

  	
  Crystal River Capital, Inc.

  Three World Financial Center

  200 Vesey Street, 10th Floor

  New York, New York 10281
 Attn: General Counsel
 Facsimile:
  (212) 549-8310

  
	
   

  	
   

  	
   

  
	
  If to the Manager:

  	
   

  	
  Hyperion Brookfield Crystal River Capital

  Advisors, LLC

  Three World Financial Center

  200 Vesey Street, 10th Floor

  New York, New York 10281
 Attn: General Counsel
 Facsimile:
  (212) 549-8310

  
	
   

  	
   

  	
   

  
	
  If to the Sub-Advisor:

  	
   

  	
  Hyperion Brookfield Asset Management, Inc.

  Three World Financial Center

  200 Vesey Street, 10th Floor

  New York, New York 10281
 Attn: General Counsel
 Facsimile:
  (212) 549-8310

  



 


Any party may change the address to which
communications or copies are to be sent by giving notice of such change of
address in conformity with the provisions of this Section 16 for the
giving of notice.


 


17.                                 Binding Nature of Agreement;
Successors and Assigns. This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective heirs, personal representatives, successors and permitted
assigns as provided in this Agreement.


 


18.                                 Entire Agreement; Amendments. This Agreement contains the entire
agreement and understanding among the parties hereto with respect to the
subject matter hereof and supersedes all prior and contemporaneous agreements, understandings,
inducements and


 


12

















 


conditions,
express or implied, oral or written, of any nature whatsoever with respect to
the subject matter of this Agreement. The express terms of this Agreement
control and supersede any course of performance and/or usage of the trade
inconsistent with any of the terms of this Agreement. This Agreement may not be
modified or amended other than by an agreement in writing signed by the parties
hereto.


 


19.                                 Governing Law. This Agreement and all questions relating
to its validity, interpretation, performance and enforcement shall be governed
by and construed, interpreted and enforced in accordance with the laws of the
State of New York.


 


20.                                 Indulgences, Not Waivers. Neither the failure nor any delay on the
part of a party to exercise any right, remedy, power or privilege under this
Agreement shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, remedy, power or privilege preclude any other or further
exercise of the same or of any other right, remedy, power or privilege, nor
shall any waiver of any right, remedy, power or privilege with respect to any
occurrence be construed as a waiver of such right, remedy, power or privilege
with respect to any other occurrence. No waiver shall be effective unless it is
in writing and is signed by the party asserted to have granted such waiver.


 


21.                                 Titles Not to Affect
Interpretation. The titles
of sections, paragraphs and subparagraphs contained in this Agreement are for
convenience only, and they neither form a part of this Agreement nor are
they to be used in the construction or interpretation of this Agreement.


 


22.                                 Execution in Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original as
against any party whose signature appears thereon, and all of which shall
together constitute one and the same instrument. This Agreement shall become
binding when one or more counterparts of this Agreement, individually or taken
together, shall bear the signatures of all of the parties reflected hereon as
the signatories.


 


23.                                 Provisions Separable. The provisions of this Agreement are
independent of and separable from each other, and no provision shall be
affected or rendered invalid or unenforceable by virtue of the fact that for
any reason any other or others of them may be invalid or unenforceable in whole
or in part.


 


24.                                 Principles of Construction. Words used herein regardless of the number
and gender specifically used, shall be deemed and construed to include any
other number, singular or plural, and any other gender, masculine, feminine or
neuter, as the context requires. All references to recitals, sections,
paragraphs and schedules are to the recitals, sections, paragraphs and
schedules in or to this Agreement unless otherwise specified.


 


[SIGNATURE PAGE FOLLOWS]


 


13

















 


IN WITNESS WHEREOF, the parties hereto have executed
this Agreement as of the date first above written.


 


 


	
   

  	
  THE COMPANY:

  
	
   

  	
   

  
	
   

  	
  CRYSTAL RIVER CAPITAL, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Craig J. Laurie

  
	
   

  	
  Name:

  	
  Craig J. Laurie

  
	
   

  	
  Title:

  	
  Chief Financial Officer and Treasurer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  THE MANAGER:

  
	
   

  	
   

  
	
   

  	
  HYPERION BROOKFIELD CRYSTAL RIVER CAPITAL
  ADVISORS, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jonathan C. Tyras

  
	
   

  	
  Name:

  	
  Jonathan C. Tyras

  
	
   

  	
  Title:

  	
  Vice President and Secretary

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  THE SUB-ADVISOR:

  
	
   

  	
   

  
	
   

  	
  HYPERION BROOKFIELD ASSET MANAGEMENT, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ John J. Feeney, Jr.

  
	
   

  	
  Name:

  	
  John J. Feeney, Jr.

  
	
   

  	
  Title:

  	
  President and Chief Executive Officer

  



 


[Signature Page to
Hyperion Brookfield Asset Management Sub-Advisory Agreement]