MODIFICATION OF REVOLVING CREDIT
LOAN AND SECURITY AGREEMENT
THIS LOAN MODIFICATION AGREEMENT ("Modification") made this 15th day of
September, 2003 and effective as of July 27, 2003, by and between RESOURCE
AMERICA, INC., with an address of 0000 Xxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxxxxxx,
XX 00000 (collectively "Borrower") and SOVEREIGN BANK, a national banking
association with an address at Xxx Xxxxxx Xxxxxx, Xxxxxxxxx, XX 00000 ("Bank").
BACKGROUND
WHEREAS, Borrower is indebted to Bank as evidenced by a certain Note
dated July 27, 1999 in the original principal amount of $5,000,000 (the "Loan")
executed by Borrower and payable to the order of Bank (the "Note"), and a
Revolving Credit Loan Agreement dated July 27, 1999 (and any extension, renewals
or modifications thereto) executed by Borrower and Bank (the "Loan Agreement")
and other documents evidencing and securing the Loan (collectively, the "Loan
Documents").
WHEREAS, Borrower has requested that Bank further modify the terms of
the Note and the Loan Agreement, which Bank has agreed to do, on the terms and
conditions more fully set forth herein.
AGREEMENT
NOW THEREFORE, the parties hereto, intending to be legally bound,
hereby agree as follows:
1. Confirmation of Indebtedness.
(a) Borrower hereby confirms, acknowledges, and agrees that as
of the date of this Modification, all interest on the Note has been paid in full
through August 31, 2003 and that the outstanding principal balance of the Note
is $5,000,000. Borrower further acknowledges and agrees that the foregoing
principal and interest balance from the date stated are validly and duly owing
by Borrower to Bank.
(b) Borrower hereby ratifies, confirms and acknowledges that
the Note and all of the other documents and instruments executed in connection
with the Loan are in full force and effect as of the date hereof, constitute
valid and legally binding obligations of Borrower, and are enforceable against
Borrower and his assets in accordance with the terms thereof.
(c) BORROWER CONFIRMS AND AGREES THAT BORROWER HAS NO CLAIM,
CAUSE OF ACTION, DEFENSE SET-OFF, COUNTERCLAIM OR CHALLENGE OF ANY KIND OR
NATURE WHATSOEVER AGAINST THE PAYMENT OF ANY OF THE SUMS OWING UNDER THE NOTE OR
THE TERMS OF THE OTHER LOAN DOCUMENTS OR THE ENFORCEMENT OR VALIDITY OF THE NOTE
OR OTHER LOAN DOCUMENTS, AND DOES HEREBY REMISE, RELEASE AND FOREVER DISCHARGE
ANY AND ALL SUCH CLAIMS, CAUSES OF ACTION, DEFENSES, SET-OFFS, COUNTERCLAIMS OR
CHALLENGES.
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2. Amendments to the Loan Agreement. The definition of "Expiration
Date" in Section 1.1 shall be July 27, 2005.
3. Conditions Precedent. The obligation of Bank to effect the
modifications and agreements contained herein is subject to the conditions
precedent that:
(a) There has been no material adverse change in condition,
financial or otherwise, in the financial or operating condition of Borrower
since the later of March 30, 2000 or the date of the last submission of the
Borrower's financial statements to the Bank.
(b) Bank shall have received payment of an extension fee of
$25,000.
(c) Bank shall have received all of the following documents,
each of which shall be in form and substance satisfactory to Bank:
(i) Copies, certified in writing by the secretaries
or assistant secretaries of Borrower, of (a) resolutions of its boards
of directors evidencing approval of this Modification and the other
matters contemplated hereby, and (b) each document evidencing other
necessary action and approvals, if any, with respect to this
Modification;
(ii) Written certificates by the secretaries or
assistant secretaries of Borrower as to the names and signatures of its
officers who are authorized to sign this Modification, and the other
documents or certificates to be executed and delivered by it pursuant
hereto;
(iii) Evidence satisfactory to Bank that Borrower's
Certificates of Incorporation and Bylaws delivered to Bank on July 27,
1999, as applicable, have not been amended in any way (or if they have
been amended, the nature of such amendment) and are in full force and
effect;
(iv) Good standing certificates for Borrower from the
states of Delaware and Pennsylvania each dated not more than 30 days
prior to the date hereof;
(v) A favorable opinion of independent counsel for
Borrower as to the matters mentioned in Paragraphs 4(a), (b) and (c)
herein and as to such other matters as Bank may reasonably request; and
(vi) Such other documents and instruments as Bank may
request under the terms of this Modification or otherwise.
(d) Borrower shall have paid Banks' counsel fees incurred in
connection with this Modification.
4. Representations and Warranties. In order to induce Bank to enter
into this Modification, Borrower represents and warrants to Bank as follows:
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(a) The execution, delivery and performance by Borrower of
this Modification and the other documents and instruments required by Bank for
the implementation of this Modification, do not and will not violate any
provision of law or any agreement, trust or other indenture or instrument to
which Borrower is a party, or by which any of its properties may be bound or
affected.
(b) There are no actions, suits or proceedings pending or
threatened against Borrower, or any of its properties before any court or
governmental department, commission, board, bureau, agency or instrumentality,
domestic or foreign, which, if determined adversely to Borrower, would have a
material adverse effect on its financial or operating condition.
(c) This Modification constitutes, and other documents and
instruments required hereby when executed will constitute, the legal, valid and
binding obligations of Borrower, enforceable in accordance with their terms.
(d) No authorization, consent, approval, license, exemption or
any other action by and no registration, qualification or filing with any
governmental agency or authority is or will be necessary in connection with the
execution, delivery and performance of this Modification or any other document
or instrument required hereby by Borrower.
(e) On and as of the date of this Modification, there has
occurred no default or event of default under the Note, the Loan Agreement or
any other Loan Document and no event which with notice or lapse of time or both
would, if unremedied, be a default or event of default under the Note or other
Loan Document.
(f) The representations, warranties, covenants and
indemnifications made by Borrower to Bank in the Note, the Loan Agreement and
other Loan Documents are true and correct as though made on and as of the date
of this Modification except that the following schedules are modified as shown
on the revised schedules annexed hereto:
(i) Schedule 5.5
(ii) Schedule 6.10
5. Miscellaneous.
(a) Except as expressly set forth herein, the terms and
conditions the Note, the Loan Agreement and the other Loan Documents (INCLUDING
WITHOUT LIMITATION THE CONFESSIONS OF JUDGMENT CONTAINED THEREIN) are ratified
and confirmed, shall remain in full force and effect and shall secure all of
Borrower's liabilities to Bank under the Note, as amended by this Modification.
(b) Paragraph headings used in this Modification are for
convenience only and shall not affect the construction of this Modification.
(c) This Modification shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania.
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(d) This Modification may be signed in counterparts, all of
which when taken together shall constitute one and the same instrument.
(e) BORROWER ACKNOWLEDGES THAT THE NOTE, THE LOAN AGREEMENT
AND OTHER LOAN DOCUMENTS CONTAIN AUTHORIZATIONS TO CONFESS JUDGMENT AGAINST
BORROWER, THAT AT THE TIME BORROWER EXECUTED THE NOTE AND THE OTHER LOAN
DOCUMENTS IT CONSULTED, AND IN CONNECTION WITH THE EXECUTION OF THIS
MODIFICATION AND THE EXECUTION OF THE DOCUMENTS AND INSTRUMENTS REQUIRED HEREBY
IT HAS CONSULTED LEGAL COUNSEL WITH RESPECT THERETO AND THAT BORROWER
UNDERSTANDS (AND AT THE TIME IT EXECUTED THE NOTES AND OTHER LOAN DOCUMENTS IT
UNDERSTOOD) THAT THE EXERCISE BY BANK OF THE AUTHORIZATIONS WILL RESULT IN THE
ENTRY OF A JUDGMENT AGAINST BORROWER AND THE SALE OR ATTACHMENT OF OR EXECUTION
UPON BORROWER'S PROPERTY (INCLUDING WITHOUT LIMITATION REAL PROPERTY, PERSONAL
PROPERTY AND BANK ACCOUNTS) WITHOUT PRIOR NOTICE OR THE OPPORTUNITY FOR A
HEARING.
[Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have executed this Modification
as of the date written above.
BORROWER:
RESOURCE AMERICA, INC.
Witness: By:
----------------------- -------------------------------------
Name:
Title:
BANK:
SOVEREIGN BANK
Attest: By:
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Xxxxxxx X. Xxxxxxxxxx, Vice President
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SCHEDULE 5.5
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SCHEDULE 6.10
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