THIRD 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
PROPERTIES, INC., RESOURCE PROPERTIES XXX, INC., RESOURCE PROPERTIES XXXI, INC.,
RESOURCE PROPERTIES XXIV, INC., and RESOURCE PROPERTIES XL, INC., all 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
Replacement Line Note dated March 30, 2000 in the original principal amount of
$18,000,000 (the "Loan") executed by Borrower and payable to the order of Bank
(the "Note"), and a Revolving Credit Loan and Security Agreement dated July 27,
1999 (and any extension, renewals or modifications thereto, including but not
limited to a certain Modification of Revolving Credit Loan and Security
Agreement dated March 30, 2000 and that certain Second Modification of Revolving
Credit Loan and Security Agreement dated April 30, 2002) 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 $18,000,000. 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
$90,000.00.
(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 or April 30, 2002, 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.
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4. Representations and Warranties. In order to induce Bank to enter
into this Modification, Borrower represents and warrants to Bank as follows:
(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 5.4
(ii) Schedule 5.13
(iii) Schedule 5.22
(iv) Schedule 6.1
(v) Schedule 6.7
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.
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(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.
(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 PROPERTIES, INC.
Witness: By:
----------------------- --------------------------------------
Name:
Title:
RESOURCE PROPERTIES XXX, INC.
Witness: By:
----------------------- --------------------------------------
Name:
Title:
RESOURCE PROPERTIES XXXI, INC.
Witness: By:
----------------------- --------------------------------------
Name:
Title:
RESOURCE PROPERTIES XXIV, INC.
Witness: By:
----------------------- --------------------------------------
Name:
Title:
RESOURCE PROPERTIES XL, INC.
Witness: By:
----------------------- --------------------------------------
Name:
Title:
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BANK:
SOVEREIGN BANK
Attest: By:
------------------------ --------------------------------------
Xxxxxxx X. Xxxxxxxxxx, Vice President
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SCHEDULE 5.4
Stock Owned by Borrower
Resource Properties, Inc. owns 100% of all issued and outstanding stock of:
1. Resource Properties II, Inc.
2. Resource Properties IV, Inc.
3. Resource Properties VIII, Inc.
4. Resource Properties XII, Inc.
5. Resource Properties XIV, Inc.
6. Resource Properties XV, Inc.
7. Resource Properties XVII, Inc.
8. Resource Properties XVIII, Inc.
9. Resource Properties XXIV, Inc.
10. Resource Properties XXV, Inc.
11. Resource Properties XXVI, Inc.
12. Resource Properties XXVII, Inc.
13. Resource Properties XXIX, Inc.
14. Resource Properties XXX, Inc.
15. Resource Properties XXXI, Inc.
16. Resource Properties XXXII, Inc.
17. Resource Properties XXXIII, Inc.
18. Resource Properties XXXIV, Inc.
19. Resource Properties XXXV, Inc.
20. Resource Properties XXXVI, Inc.
21. Resource Properties XXXVIII, Inc.
22. Resource Properties XL, Inc.
23. Resource Properties XLI, Inc.
24. Resource Properties XLII, Inc.
25. Resource Properties XLIV, Inc.
26. Resource Properties XLVI, Inc.
27. Resource Propeties XXLVII, Inc.
28. Resource Properties XLIX, Inc.
29. Resource Properties 50, Inc.
30. Resource Properties 51, Inc.
31. Resource Properties 52, Inc.
32. Resource Properties 53, Inc.
33. Resource Properties 54, Inc.
34. ABB Associates I, Inc.
35. ABB Associates II, Inc.
36. CP/CG, Inc.
37. Chesterfield Mortgage Investors, Inc.
38. ES GP, Inc.
39. RAI Financial, Inc.
40. Resource Commercial Mortgages, Inc.
41. Resource Financial Services, Inc.
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SCHEDULE 5.4 (Con't)
42. Resource Housing Investors I, Inc.
43. Resource Housing Investors, II, Inc.
44. Resource Housing Investors III, Inc.
45. Resource Housing Investors IV, Inc.
46. Resource Programs, Inc.
47. Resource Xxxxxxxxxxx, Inc.
48. WS Mortgage Acquisition Corporation
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SCHEDULE 5.13
Names and Addreses of Bororwer
Resource Properties, Inc.
Resource Properties XXIV, Inc.
Resource Properties XL, Inc.
Resource Properties XXX, Inc.
Resource Properties XXXI, Inc.
0000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxxxx, XX 00000
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SCHEDULE 5.22
Permitted Bank Accounts
Xxxxxx United Bank
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
1. Resource Properties, Inc. 5159-00590
2. Resource Properties, Inc. 43-79934
3. Resource Properties XL, Inc. 42-73834
4. Resource Properties XXIV, Inc. 7500-66150
5. Resource Properties XXX, Inc.
-----------
6. Resource Properties XXXI, Inc.
------------
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SCHEDULE 6.1
Permitted Indebtedness
Borrower's existing indebtedness is as follows:
Resource Properties XXIV, Inc. $875,000 loan from Xxxxxxx Associates
Resource Properties, Inc. $6,800,000 loan from Xxxxxx United Bank
Resource Properties, Inc. $10,000,000 loan from Xxxxxx & Xxxxxxxxx
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SCHEDULE 6.7
Permitted Liens and Security Interests
Borrower's liens and security intersts are as follows:
Resource Proeprties XXIV, Inc. $875,000 loan from Xxxxxxx Associates
Resource Properties, Inc. $6,800,000 loan from Xxxxxx United Bank
Resource Properties, Inc. $10,000,000 loan from Xxxxxx & Xxxxxxxxx
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