FIRST AMENDMENT AND JOINDER TO LOAN AND SECURITY AGREEMENT
Exhibit
10.1(a)
FIRST
AMENDMENT AND JOINDER TO LOAN AND SECURITY AGREEMENT
This
FIRST AMENDMENT AND JOINDER TO LOAN AND SECURITY AGREEMENT (“Amendment”) is
dated July 18, 2007, by and 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"), U.S.
Bank, National Association, a national banking association
(“Joining Lender”), 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, by
and
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restated, superseded, amended or replaced from time to time, the “Loan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.
D. Joining
Lender wishes to become a Lender party to the Loan Agreement.
NOW,
THEREFORE, with the foregoing Background incorporated by reference and intending
to be legally bound hereby, the parties agree as follows:
1. Joinder. Upon
the effectiveness of this Amendment Joining Lender joins in, assumes, adopts
and
becomes a Lender under the Loan Agreement and the Loan Documents. All
references to Lenders contained in the Loan Agreement and the Loan Documents
are
hereby deemed for all purposes to also refer to and include Joining Lender
and
Joining Lender hereby agrees to comply with all of the terms and conditions
of
the Loan Documents as if an original signatory thereto.
2. Amendments
to Loan Agreement. Section 1 of the Loan Agreement shall be
amended by deleting the definitions of Borrowing Base, Maximum
Revolving Advance Amount and Subordinated Debt replacing each as
follows:
Borrowing
Base– As of the date of determination, an amount equal to the lesser of (i)
the Maximum Revolving Credit Amount or (ii) without duplication, the sum of
(a)
75% of Aggregate Non-Callable Management Fees plus (b) 70% of the market value
(as determined by reference to the applicable national exchange) of the Pledged
Securities plus (c) 75% of REIT Management Fees payable in cash minus (d) the
Senior Management Fee Reserve. Notwithstanding anything herein to the
contrary with respect to any Management Agreement for a particular
Collateralized Debt Offering, if the Asset Default Rate as to such
Collateralized Debt Offering exceeds the Specified Default Rate on a Specified
Test Date, then Borrower shall have no borrowing availability with respect
to
the subordinated management fees from such Collateralized Debt Offering in
subclause (ii)(a) above from the Business Day immediately following delivery
of
a Specified Default Rate Certificate until the date on which Agent receives
a
Specified Default Rate Certificate which evidences that such Asset Default
Rate
does not exceed the Specified Default Rate.
Maximum
Revolving Credit Amount– Subject to Section 2.9(b), the
aggregate sum of each Lender’s Revolving Credit Pro Rata Share, which in no
event shall exceed in the aggregate Seventy Five Million Dollars
($75,000,000).
Subordinated
Debt– Unsecured Indebtedness of Borrower or a Subsidiary Guarantor subject
to payment terms and subordination provisions acceptable to Agent in its sole
discretion, or in connection with an offering of subordinated Indebtedness
in
the public markets or pursuant to a “private placement” offering, unsecured
Indebtedness which has been subordinated (pursuant to the documents evidencing
such unsecured Indebtedness) to the Obligations hereunder on terms and
conditions customary in the market.
3. Section
1 of the Loan Agreement shall be amended by adding new definitions of Senior
Management Fee Certificate, Senior Management Fee Reserve, Senior
Management Fees, Specified Default Rate, Specified Default Rate
Certificate, and Specified Default Test Date and as
follows:
Senior
Management Fee Certificate– A certificate, in form and substance
satisfactory to Agent, from an Authorized Officer of Borrower certifying to
Agent the net present value of all Senior Management Fees.
Senior
Management Fee Reserve– Commencing on December 31, 2007 and each month end
thereafter, an amount (if any) equal to seventy five percent (75%) of the amount
by which Forty Million Dollars ($40,000,000) exceeds the net present value
of
all Senior Management Fees as determined by reference to the Senior Management
Fee Certificate. Any applicable Senior Management Fee Reserve shall be in effect
from the Business Day immediately following the day on which Agent receives
a
Senior Management Fee Certificate and shall remain in effect
2
until
eliminated or adjusted based on Borrower’s delivery of a subsequent Senior
Management Fee Certificate.
Senior
Management Fees– For any period, the aggregate amount of all senior
management fees earned through the reinvestment period as defined in the
Collateralized Debt Offering documents to which Borrower, Trapeza Management
and
Subsidiary Guarantors are entitled to under all Management Agreements and
Trapeza Management Agreements (other than Excluded Management Fees and
subordinated management fees) in effect from time to time in which 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).
Specified
Default Rate– With respect to any Collateralized Debt Offering for which a
Subsidiary Guarantor (other than Ischus Capital Management, LLC) or Trapeza
Management serves as collateral manager pursuant to a Management Agreement,
the
following Asset Default Rate:
|
Collateralized
Debt Offering managed by:
|
Asset
Default Rate
|
|
Apidos
Capital Management, LLC or any other entity acting as a collateral
manager
under the Management Agreements related to assets under the Apidos
platform
|
Greater
than or equal to 6.00%
|
|
Trapeza
Capital Management or any other entity acting as a collateral manager
under the Management Agreements related to assets under the
Trapeza platform
|
Greater
than or equal to 1.75%
|
Specified
Default Rate Certificate– A certificate, in form and substance satisfactory
to Agent, from an Authorized Officer of Borrower setting forth the Asset Default
Rates for a specific Collateralized Debt Offering for the immediately preceding
three month period (based on the initial closing of such Collateralized Debt
Offering).
Specified
Default Test Date– Each date on which Agent receives a Specified Default
Rate Certificate.
4. Section
6.9 of the Loan Agreement shall be amended by adding subsection (h) and (i)
as
follows:
3
(h) Senior Management Fee Certificate: on or before the 15th
day following the
end of each month, a signed Senior Management Fee Certificate; and
(i)
Specified Default Rate Certificate: on or before the 15th
day following
Borrower’s receipt of a trustee report setting forth the Asset Default Rate for
any particular Collateralized Debt Offering, a signed Specified Default Rate
Certificate.
5. Subclause
(vii) of Section 10.11(a) of the Loan Agreement shall be deleted in its entirety
and replaced as follows:
(vii)
release or compromise the obligations of Borrower or any Subsidiary Guarantor
to
any Lender without the written consent of each Lender;
6. Schedule
A and Schedule B of the Loan Agreement shall be deleted in their
entirety and replaced with Schedule A and Schedule B attached
hereto.
7. 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 C to the First 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. After giving effect to Section 11 of the First
Amendment, no Default or Event of Default exists after giving effect to this
Amendment.
8. 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
4
9. Confirmation
of Indebtedness. Borrower confirms and acknowledges that as of the close of
business on July 18, 2007, (i) it is indebted to Agent and Lenders under the
Loan Documents in the aggregate principal amount of $32,000,000 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.
10. 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.
11. 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. Execution
and delivery of a Revolving Credit Note in favor of U.S. Bank, National
Association in the amount of Twenty Five Million Dollars
($25,000,000);
c. Payment
by Borrower of all of Agent’s Expenses;
d. Delivery
of authorizing resolutions on behalf of Borrower and Subsidiary Guarantors;
and
e. Such
other items as Agent may reasonably require.
12. 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.
13. 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.
5
14. 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.
15. 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.
6
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: __________________
LENDER:
Commerce
Bank, N.A., as Lender
By: __________________
Name: __________________
Title: __________________
JOINING
LENDER
U.S.
Bank, National Association, as
Lender
By: __________________
Name: __________________
Title: __________________
(Signature
Page S-1 to First Amendment to Loan & Security Agreement)
AGREED
TO AND ACCEPTED:
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 First Amendment to Loan & Security Agreement)
SCHEDULE
“A”
|
Lenders
|
Pro
Rata Percentage
|
Revolving
Credit
Pro
Rata Share
|
||
|
Commerce
Bank, N.A.
|
66.00000000%
|
$50,000,000
|
||
|
U.S.
Bank, National Association
|
33.33333334%
|
$25,000,000
|
||
(Schedule
A to First Amendment to Loan & Security Agreement)
SCHEDULE
“B”
Commerce
Bank, N.A.
0000
Xxxxx 00 Xxxx
Xxxxxx
Xxxx, XX 00000
Attn:
Xxxxxx X. Xxxxx
Telecopier:
000-000-0000
U.S.
Bank, National Association
000
Xxxx
Xxxxxxxxx Xxxxxx
Xxxxxxxxx,
Xxxxxxxxx 00000
Attn:
Xxx
Xxxxx
Telecopier:
000-000-0000
(Schedule
B to First Amendment to Loan & Security Agreement)
SCHEDULE
“C”
None
(Schedule
C to First Amendment to Loan & Security Agreement)
