SECOND AMENDMENT TO LOAN AND SECURITY AGREEMENT
Exhibit
10.1(b)
SECOND
AMENDMENT TO LOAN AND SECURITY AGREEMENT
This
SECOND AMENDMENT AND JOINDER TO LOAN AND SECURITY AGREEMENT (“Amendment”) is
dated November 15, 2007 among Resource
America, Inc., a Delaware corporation (“Borrower”), Commerce
Bank, N.A., a national banking association, in
its capacity as agent ("Agent"), Commerce
Bank, N.A., a national banking association, in
its capacity as issuing bank ("Issuing Bank") and each of the financial
institutions which are now or hereafter identified as Lenders on Schedule A
(as
such Schedule may be amended, modified or replaced from time to time) attached
to the Loan Agreement (as defined below), (each such financial
institution, individually each being a "Lender" and collectively all being
"Lenders").
BACKGROUND
A. Pursuant
to the terms of a certain Loan and Security Agreement dated May 24, 2007 among
Borrower, Agent and Lenders (as the same has been or may be supplemented,
restated, superseded, amended or replaced from time to time, the “Loan
Agreement”), Lenders made available to Borrower, inter alia, a revolving
line of credit not to exceed Seventy Five Million Dollars ($75,000,000) (the
“Loans”). All capitalized terms used herein without further
definition shall have the respective meaning set forth in the Loan Agreement
and
all other Loan Documents.
B. The
Loans are secured by, interalia, continuing perfected security
interests in the Collateral.
C. Borrower
has requested that Agent and Lenders modify, in certain respects, the terms
of
the Loan Agreement and Agent and Lenders have agreed to such modifications
in
accordance with and subject to the satisfaction of the conditions
hereof.
NOW,
THEREFORE, with the foregoing Background incorporated by reference and intending
to be legally bound hereby, the parties agree as follows:
1. Amendments
to Loan Agreement. Section 1 of the Loan Agreement shall be
amended by deleting the definitions of Aggregate Non-Callable Management
Fees and Senior Management Fees and replacing each as
follows:
Aggregate
Non-Callable Management Fees— At any time, the aggregate net present value
of all management fees earned through the reinvestment period as defined in
the
Collateralized Debt Offering documents (other than Excluded Management Fees)
to
which Borrower, Trapeza Management, Subsidiary Guarantors and Resource Europe
Management Limited are entitled pursuant to all Management Agreements, Trapeza
Management Agreements and UK Management Agreements in effect from time to time;
provided that Agent, on behalf of Lenders shall have a first priority perfected
Lien in all fees payable under any Management Agreement (other than under the
Trapeza Management
Agreements)
and any UK Management Agreement. Net present value, for the purpose
of this definition, shall be calculated as follows: the Management Fee Amount,
discounted by (i.e. divided by) 1.08 to the power of "n", with "n"
being the number of years in the discount period.
Senior
Management Fees– For any period, the aggregate amount of (i) the REIT
Management Fees payable in cash plus (ii) all senior management fees
earned through the reinvestment period as defined in the Collateralized Debt
Offering documents to which Borrower, Trapeza Management, Subsidiary Guarantors
and Resource Europe Management Limited are entitled to under all Management
Agreements, the Trapeza Management Agreements and UK Management Agreements
(other than Excluded Management Fees and subordinated management fees) in effect
from time to time in which as to subclauses (i) and (ii) Agent, on behalf of
Lenders, shall have a first priority perfected Lien in all fees payable under
any Management Agreement (other than under the Trapeza Management Agreements)
and any UK Management Agreement.
2. Section
1 of the Loan Agreement shall be amended by adding a new definition of UK
Management Agreements as follows:
UK
Management Agreements– Collectively, those certain management agreements
identified on Schedule H attached hereto.
3. Schedule
C of the Loan Agreement shall be deleted in its entirety and replaced with
Schedule C attached hereto.
4. A
new Schedule H shall be added to the Loan Agreement in the form attached
hereto as Schedule H.
5. Representations
and Warranties. Borrower warrants and represents to Agent and
Lenders that:
a. Prior
Representations. Borrower, by its execution of this Amendment, reconfirms
all warranties and representations made to Lenders under the Loan Agreement
and
the other Loan Documents (as modified by
Schedule A to the Second Amendment
attached hereto and made part hereof), and restate such warranties and
representations as of the date hereof, all of which shall be deemed continuing
until all of the obligations due to Secured Parties are indefeasibly paid and
satisfied in full.
b. Authorization.
The execution and delivery by Borrower of this Amendment and the performance
by
Borrower of the transactions herein contemplated (i) are and will be within
its
powers, (ii) have been duly authorized by all necessary action on behalf of
Borrower and (iii) are not and will not be in contravention of any order of
court or other agency of government, of law or of any indenture, agreement
or
undertaking to which Borrower is a party or by which the property of Borrower
is
bound, or be in conflict with, result in a breach of or constitute (with due
notice and/or lapse of time) a default under any such indenture, agreement
or
undertaking, or result in the imposition of any lien, charge or encumbrance
of any nature on any of the properties of the Borrower.
c. Valid,
Binding and Enforceable. This Amendment and any assignment or other
instrument, document or agreement executed and delivered in connection herewith,
will be valid, binding and enforceable in accordance with their respective
terms.
d. No
Default. No Default or Event of Default exists after giving
effect to this Amendment.
6. Ratification
of Loan Documents. This Amendment is hereby incorporated into and
made a part of the Loan Agreement and all other Loan Documents respectively,
the
terms and provisions of which, except to the extent modified by this Amendment
are each ratified and confirmed and continue unchanged in full force and
effect. Any reference to the Loan Agreement and all other Loan
Documents respectively in this or any other instrument, document or agreement
related thereto or executed in connection therewith shall mean the Loan
Agreement and all other Loan Documents respectively as amended by this
Amendment. As security for the payment of the Obligations, and
satisfaction by Borrower of all covenants and undertakings contained in the
Loan
Agreement, Borrower hereby confirms its prior grant to Agent, for the ratable
benefit of Secured Parties, of a continuing first lien on and security interest
in, upon and to all of Borrower's now owned or hereafter acquired, created
or
arising Collateral as described in Section 3 of the Loan Agreement.
7. Confirmation
of Indebtedness. Borrower confirms and acknowledges that as of the close of
business on November 14, 2007, (i) it is indebted to Agent and Lenders under
the
Loan Documents in the aggregate principal amount of $42,846,420 without any
deduction, defense, setoff, claim or counterclaim, of any nature as of the
date
of this First Amendment, plus all fees, costs and Expenses incurred to date
in
connection with the Loan Documents.
8. Confirmation
of Subsidiary Guarantors. By its signature below, each Subsidiary
Guarantor, hereby consents to and acknowledges the terms and conditions of
this
Amendment and agrees that its Surety and Guaranty Agreement dated May 24, 2007
is ratified and confirmed and shall continue in full force and effect and shall
continue to cover all obligations of Borrower outstanding from time to time
under the Loan Agreement as amended hereby.
9. Effectiveness
Conditions. This Amendment shall become effective upon the
satisfaction of the following conditions:
a. Execution
and delivery by Borrower and each Lender of this Amendment to
Agent;
b. Payment
by Borrower of all of Agent’s Expenses;
c. A
security assignment (the “UK Pledge Agreement”) executed by Resource Europe
Management Limited granting Agent and Lenders a first priority Lien on, and
security interest in, all management fees and proceeds payable under the UK
Management Agreements, in form and substance satisfactory to Agent;
d. An
opinion from Borrower’s United Kingdom counsel relating to the validity, and
enforceability of the UK Pledge Agreement, in form and substance satisfactory
to
Agent;
and
e. Such
other items as Agent may reasonably require.
10. Governing
Law. THIS AMENDMENT, AND ALL RELATED AGREEMENTS AND DOCUMENTS,
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE SUBSTANTIVE LAWS
OF
THE COMMONWEALTH OF PENNSYLVANIA. THE PROVISIONS OF THIS AMENDMENT AND ALL
OTHER
AGREEMENTS AND DOCUMENTS REFERRED TO HEREIN ARE TO BE DEEMED SEVERABLE, AND
THE
INVALIDITY OR UNENFORCEABILITY OF ANY PROVISION SHALL NOT AFFECT OR IMPAIR
THE
REMAINING PROVISIONS WHICH SHALL CONTINUE IN FULL FORCE AND EFFECT.
11. Modification. No
modification hereof or any agreement referred to herein shall be binding or
enforceable unless in writing and signed by Borrower and Agent or Lenders,
as
required under the Loan Agreement.
12. Duplicate
Originals: Two or more duplicate originals of this Amendment may
be signed by the parties, each of which shall be an original but all of which
together shall constitute one and the same instrument.
13. Waiver
of Jury Trial: BORROWER, AGENT AND LENDER EACH HEREBY WAIVE ANY
AND ALL RIGHTS EACH MAY HAVE TO A JURY TRIAL IN CONNECTION WITH ANY LITIGATION,
PROCEEDING OR COUNTERCLAIM ARISING WITH RESPECT TO RIGHTS AND OBLIGATIONS OF
THE
PARTIES HERETO OR UNDER THE LOAN DOCUMENTS OR WITH RESPECT TO ANY CLAIMS ARISING
OUT OF ANY DISCUSSIONS, NEGOTIATIONS OR COMMUNICATIONS INVOLVING OR RELATED
TO
ANY PROPOSED RENEWAL, EXTENSION, AMENDMENT, MODIFICATION, RESTRUCTURE,
FORBEARANCE, WORKOUT, OR ENFORCEMENT OF THE TRANSACTIONS CONTEMPLATED BY THE
LOAN DOCUMENTS.
IN
WITNESS WHEREOF, the undersigned parties have executed this Amendment the day
and year first above written.
BORROWER:
Resource
America, Inc.
By: _____________________
Name: ___________________
Title: ____________________
AGENT:
Commerce
Bank, N.A.
By: _____________________
Name: ___________________
Title: ____________________
LENDERS:
Commerce
Bank, N.A., as Lender
By: _____________________
Name: ___________________
Title: ____________________
U.S.
Bank, National Association, as
Lender
By: _____________________
Name: ___________________
Title: ____________________
(Signature Page S-1 to Second Amendment to Loan & Security Agreement)
SURETIES:
Apidos
Capital Management, LLC
By: ________________________________
Name: ___________________________
Title: ___________________________
Chesterfield
Mortgage Investors, Inc.
By: ________________________________
Name: ___________________________
Title: ___________________________
Coredo
Capital Management, LLC
By: ________________________________
Name: ___________________________
Title: ___________________________
Ischus
Capital Management, LLC
By: ________________________________
Name: ___________________________
Title: ___________________________
RAI
Ventures, Inc.
By: ________________________________
Name: ___________________________
Title: ___________________________
RCP
Financial, LLC
By: ________________________________
Name: ___________________________
Title: ___________________________
Resource
Credit Management, LLC
By: ________________________________
Name: ___________________________
Title: ___________________________
Resource
Capital Manager, Inc.
By: ________________________________
Name: ___________________________
Title: ___________________________
Resource
Capital Investor, Inc.
By: ________________________________
Name: ___________________________
Title: ___________________________
Resource
Capital Partners, Inc.
By: ________________________________
Name: ___________________________
Title: ___________________________
Resource
Credit Partners GP, Inc.
By: ________________________________
Name: ___________________________
Title: ___________________________
Resource
Financial Institutions Group, Inc.
By: ________________________________
Name: ___________________________
Title: ___________________________
Resource
Financial Fund Management, Inc.
By: ________________________________
Name: ___________________________
Title: ___________________________
Resource
Housing Investors I, Inc.
By: ________________________________
Name: ___________________________
Title: ___________________________
Resource
Housing Investors II, Inc.
By: ________________________________
Name: ___________________________
Title: ___________________________
Resource
Housing Investors III, Inc.
By: ________________________________
Name: ___________________________
Title: ___________________________
Resource
Housing Investors IV, Inc.
By: ________________________________
Name: ___________________________
Title: ___________________________
Resource
Leasing, Inc.
By: ________________________________
Name: ___________________________
Title: ___________________________
Resource
Programs, Inc.
By: ________________________________
Name: ___________________________
Title: ___________________________
Resource
Properties VIII, Inc.
By: ________________________________
Name: ___________________________
Title: ___________________________
Resource
Properties XIV, Inc.
By: ________________________________
Name: ___________________________
Title: ___________________________
Resource
Properties XVII, Inc.
By: ________________________________
Name: ___________________________
Title: ___________________________
Resource
Properties XXIV, Inc.
By: ________________________________
Name: ___________________________
Title: ___________________________
Resource
Properties XXV, Inc.
By: ________________________________
Name: ___________________________
Title: ___________________________
Resource
Properties XXVI, Inc.
By: ________________________________
Name: ___________________________
Title: ___________________________
Resource
Properties XXX, Inc.
By: ________________________________
Name: ___________________________
Title: ___________________________
Resource
Properties XXXI, Inc.
By: ________________________________
Name: ___________________________
Title: ___________________________
Resource
Properties XXXIII, Inc.
By: ________________________________
Name: ___________________________
Title: ___________________________
Resource
Properties XL, Inc.
By: ________________________________
Name: ___________________________
Title: ___________________________
Resource
Properties XLI, Inc.
By: ________________________________
Name: ___________________________
Title: ___________________________
Resource
Properties XLIX, Inc.
By: ________________________________
Name: ___________________________
Title: ___________________________
Resource
Properties 54, Inc.
By: ________________________________
Name: ___________________________
Title: ___________________________
Resource
Properties XLVII, Inc.
By: ________________________________
Name: ___________________________
Title: ___________________________
Resource
Real Estate,
Inc.
By: ________________________________
Name: ___________________________
Title: ___________________________
Resource
Real Estate Funding, Inc.
By: ________________________________
Name: ___________________________
Title: ___________________________
Resource
Real Estate Holdings, Inc.
By: ________________________________
Name: ___________________________
Title: ___________________________
Resource
Xxxxxxxxxxx, Inc.
By: ________________________________
Name: ___________________________
Title: ___________________________
Resource
Real Estate Management, LLC
By: ________________________________
Name: ___________________________
Title: ___________________________
RRE1
Duraleigh Member, LLC
By: ________________________________
Name: ___________________________
Title: ___________________________
RRE2
Duraleigh Member, LLC
By: ________________________________
Name: ___________________________
Title: ___________________________
(Signature Page S-2 to Second Amendment to Loan & Security Agreement)
SCHEDULE
“A”
None
(Schedule
A to Second Amendment to Loan & Security Agreement)
SCHEDULE
“C”
List
of Subsidiaries that cannot be Subsidiary Guarantors
|
|
1.
|
Xxxxxxxx
Securities, Inc.
|
|
|
2.
|
Resource
Europe Management Limited
|
|
|
3.
|
Resource
Euope Limited
|
|
|
4.
|
Trapeza
Capital Management LLC
|
5.
Trapeza Manager, Inc.
|
|
6.
|
Trapeza
Funding, LLC
|
|
|
7.
|
Trapeza
Funding II, LLC
|
|
|
8.
|
Trapeza
Funding III, LLC
|
|
|
9.
|
Trapeza
Funding IV, LLC
|
|
|
10.
|
Trapeza
Funding V, LLC
|
|
|
11.
|
Trapeza
TPS, LLC
|
|
|
12.
|
Trapeza
Management Group, LLC
|
|
|
13.
|
Structured
Finance Fund GP, LLC
|
|
|
14.
|
Structured
Finance Management LLC
|
|
|
15.
|
Axios
Capital Management, LLC
|
|
|
16.
|
Resource
RSI Phase I, LLC
|
|
|
17.
|
Resource
RSI Phase II, LLC
|
|
|
18.
|
Press
Building, LLC
|
|
|
19.
|
RCP
Nittany Pointe Manager, Inc.
|
|
|
20.
|
RCP
Chinoe Creek Manager, Inc.
|
|
|
21.
|
RCP
Fountains GP, Inc.
|
|
|
22.
|
RCP
Portland Courtyard Manager, Inc.
|
|
|
23.
|
RCP
Albuquerque Manager, Inc.
|
|
|
24.
|
RCP
Avalon Manager, Inc.
|
|
|
25.
|
RCP
Falls at Duraleigh Manager, Inc.
|
|
|
26.
|
RCP
Sage Canyon Manager, Inc.
|
|
|
27.
|
RCP
Xxxxxxx Manager, Inc.
|
|
|
28.
|
RCP
Holdco I Manager, Inc.
|
|
|
29.
|
RCP
Reserves Manager, Inc.
|
|
|
30.
|
RCP
Foxglove Manager, Inc.
|
|
|
31.
|
RCP
Santa Fe Manager, Inc.
|
|
|
32.
|
RCP
Regents Center Manager, Inc.
|
|
|
33.
|
RCP
Highland Lodge Manager, Inc.
|
|
|
34.
|
RCP
Reserves Holdings Manager, Inc.
|
|
|
35.
|
RCP
Grove Manager, Inc.
|
|
|
36.
|
RCP
Xxxxxx Bridge Manager, Inc.
|
|
|
37.
|
RCP
Heritage Lake Manager, Inc.
|
|
|
38.
|
RCP
Westchase Wyndham Manager, Inc.
|
|
|
39.
|
RCP
Pear Tree Manager, Inc.
|
|
|
40.
|
RCP
Wind Tree Manager, Inc.
|
|
|
41.
|
RCP
Chenal Brightwaters Manager, Inc.
|
|
|
42.
|
AR
Real Estate Investors, LLC
|
|
|
43.
|
Resource
Asset Management, Inc.
|
|
|
44.
|
LEAF
Asset Management, LLC
|
|
|
45.
|
LEAF
Commercial Finance Income Fund I,
LP
|
|
|
46.
|
LEAF
Commercial Finance Income Fund II,
LP
|
|
|
47.
|
LEAF
Equipment Leasing Income Fund III,
LP
|
|
|
48.
|
FLI
Holdings, Inc.
|
|
|
49.
|
LEAF
Financial Corporation
|
|
|
50.
|
LEAF
Commercial Finance Co., LLC
|
|
|
51.
|
Lease
Equity Appreciation Fund I, LP
|
|
|
52.
|
LEAF
Fund I, LLC
|
|
|
53.
|
Lease
Equity Appreciation Fund II, LP
|
|
|
54.
|
LEAF
Fund II, LLC
|
|
|
55.
|
Lease
Equity Appreciation Fund III, LP
|
|
|
56.
|
LEAF
Funding, Inc.
|
|
|
57.
|
LEAF
Institutional Direct Management,
LLC
|
|
|
58.
|
Resource
Capital Funding II, LLC
|
|
|
59.
|
LEAF
Ventures, LLC
|
|
|
60.
|
Merit
Capital Manager, LLC
|
|
|
61.
|
Merit
Capital Advance, LLC
|
|
|
62.
|
LEAF
Capital Management, Inc.
|
|
|
63.
|
RAI
Financial, Inc.
|
|
|
64.
|
Resource
Commercial Mortgages, Inc.
|
|
|
65.
|
Resource
Financial Services, Inc.
|
|
|
66.
|
WS
Mortgage Acquisition Corp.
|
|
|
67.
|
Resource
Properties II, Inc.
|
|
|
68.
|
Resource
Properties IV, Inc.
|
|
|
69.
|
Resource
Properties VI, Inc.
|
|
|
70.
|
Resource
Properties XV, Inc.
|
|
|
71.
|
Resource
Properties XVIII, Inc.
|
|
|
72.
|
Resource
Properties XX, Inc.
|
|
|
73.
|
Resource
Properties XXII, Inc.
|
|
|
74.
|
Resource
Properties XXIII, Inc.
|
|
|
75.
|
Resource
Properties XXIX, Inc.
|
|
|
76.
|
Resource
Properties XXXII, Inc.
|
|
|
77.
|
Resource
Properties XXXIV, Inc.
|
|
|
78.
|
Resource
Properties XXXVI, Inc.
|
|
|
79.
|
Resource
Properties XXXVIII, Inc.
|
|
|
80.
|
Resource
Properties XLII, Inc.
|
|
|
81.
|
Resource
Properties XLIV, Inc.
|
|
|
82.
|
Resource
Properties XLVI, Inc.
|
|
|
83.
|
Resource
Properties 50, Inc.
|
|
|
84.
|
Resource
Properties 51, Inc.
|
|
|
85.
|
Resource
Properties 52, Inc.
|
|
|
86.
|
Resource
Properties 53, Inc.
|
|
|
87.
|
Deerfield
RPI, LLC
|
|
|
88.
|
Resource
Properties XXXV, Inc.
|
(Schedule
C to Second Amendment to Loan & Security Agreement)
SCHEDULE
“H”
UK
Management Agreements
1. Investments
Management and Collateral Administration Agreement between Resource Europe
CLO I
B.V. and Resource Europe Management Limited dated May 22, 2007.
(Schedule
H to Second Amendment to Loan & Security Agreement)
