exv10w3






EXHIBIT 10.3




EXECUTION COPY




[RESOURCE CAPITAL FUNDING II, LLC]




FORBEARANCE AND RESERVATION OF RIGHTS




     This FORBEARANCE AND RESERVATION OF RIGHTS (this “Forbearance”), dated as of May 14,
2009, is entered into by and among RESOURCE CAPITAL FUNDING II, LLC (the “Borrower”), LEAF
FINANCIAL CORPORATION (the “Servicer”), MORGAN STANLEY BANK, N.A. (f/k/a Morgan Stanley
Bank) (“Morgan Stanley”), as a Lender and Collateral Agent and MORGAN STANLEY CAPITAL
SERVICES INC. (the “Qualifying Swap Counterparty”).



BACKGROUND




     1. The Borrower, the Servicer, Morgan Stanley, the Backup Servicer and U.S. Bank National
Association, as the Custodian are parties to the Receivables Loan and Security Agreement, dated as
of October 31, 2006 (as amended, supplemented or otherwise modified through the date hereof, the
“RLSA”). Capitalized terms used herein but not defined herein shall have the meanings set
forth in the RLSA.



     2. The Borrower and the Qualifying Swap Counterparty are parties to a Qualifying Interest Rate
Swap dated as of December 22, 2006 (as amended, supplemented or otherwise modified through the date
hereof, and including all swap transactions entered into pursuant thereto, the “Swap
Agreement”).



     3. The Borrower and the Servicer have requested that the Lender and the Collateral Agent
(collectively, the “Forbearing Parties”) forbear for a period of time from exercising
certain of their rights under the RLSA as set forth in Section 1(a) below. Such Persons
are willing to agree to such forbearance, subject to the terms and conditions hereof.



     4. The Borrower has also requested that the Qualifying Swap Counterparty forbear for a period
of time from exercising certain of its rights under the Swap Agreement as set forth in Section
1(b) below. The Qualifying Swap Counterparty is willing to agree to such forbearance, subject
to the terms and conditions hereof.



     NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:



     SECTION 1. Forbearance.




     (a) The Servicer and the Borrower hereby notify the Forbearing Parties that the
financial statements of Resource America for the quarter ending March 31, 2009, to be
delivered by Borrower on May 15, 2009, will show that the Tangible Net Worth of Resource
America is less than its Minimum Tangible Net Worth (such condition, the “Breach”).
The occurrence of the Breach constitutes each of the events set forth on Schedule A
attached hereto (the “Covenant Failures”), and entitles the Forbearing Parties to
exercise remedies pursuant thereto absent the forbearance provided for hereunder. For the
period commencing on the date hereof and ending on the close of business on May



 









 






28, 2009 (the “Forbearance Period”), the Forbearing Parties will forbear from exercising
their rights and remedies resulting solely from the Covenant Failures. The forbearance
provided herein shall not extend to any Event of Default, Program Termination Event or
Servicer Default other than the Covenant Failures and all of the Forbearing Parties’ rights
and remedies with respect thereto are hereby reserved. Further, the forbearance provided
herein shall not derogate from the Forbearing Parties’ rights to collect, reserve and/or
apply proceeds of Pledged Assets to payment of outstanding liabilities as may be
specifically provided for in the RLSA and the other Transaction Documents. If the foregoing
forbearance is not extended by the Forbearing Parties by the end of the Forbearance Period,
the Borrower and the Servicer hereby acknowledge that the Covenant Failures shall exist and
that each Forbearing Party shall be fully entitled to declare a Program Termination Date and
to exercise all other rights and remedies with respect thereto under the RLSA and the other
Transaction Documents.




     (b) The Borrower hereby notifies the Qualifying Swap Counterparty that one or more of
the Covenant Failures constitutes the “Event of Default” (as defined in the Swap Agreement)
set forth in clause (1) of Section 5(a)(vi) of the Swap Agreement and
entitles the Qualifying Swap Counterparty to exercise remedies pursuant thereto absent the
forbearance provided for hereunder. The Qualifying Swap Counterparty hereby agrees to
forbear from exercising its rights and remedies resulting solely from such “Event of
Default” or the Breach and each of the Qualifying Swap Counterparty and the Borrower hereby
agrees that the “Early Termination Date” under (and as defined in) the Swap Agreement shall
not be declared as a result of such “Event of Default” during the Forbearance Period. If
the foregoing forbearance is not extended by the Qualifying Swap Counterparty by the end of
the Forbearance Period, the Borrower hereby acknowledges that such “Event of Default” shall
exist under the Swap Agreement and that the Qualifying Swap Counterparty shall be fully
entitled to exercise all rights and remedies with respect thereto under the Swap Agreement.



     SECTION 2. Termination of Funding. The Borrower and the Lender hereby agree that,
notwithstanding this Forbearance or anything to the contrary set forth in the RLSA or any other
Transaction Document, under no circumstances shall the Lender be obligated to make, nor shall the
Borrower request, any additional Loan under the RLSA. For the avoidance of doubt, such termination
of funding shall continue in effect notwithstanding any subsequent extension of the forbearance
granted in Section 1(a).



     SECTION 3. Representations and Warranties. Each of the Borrower and Servicer
represents and warrants that:




     (a) except as expressly described in Section 1 above, no event or condition has
occurred and is continuing which would constitute an Event of Default, a Program Termination
Event, a Servicer Default, a Pool A Termination Event, a Pool B Termination Event, a
“Termination Event” under the Swap Agreement, an “Event of Default” under the Swap
Agreement, or any event that, if it continued uncured, with the lapse of time or notice, or
both, would constitute any of the foregoing events; and




     (b) except as expressly described in Section 1 above, its representations and
warranties set forth in the RLSA, the Swap Agreement and the other Transaction



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Documents are
true and correct as of the date hereof, as though made on and as of such
date (except to the extent such representations and warranties relate solely to an
earlier date and then as of such earlier date), and such representations and warranties
shall continue to be true and correct (to such extent) after giving effect to the
transactions contemplated hereby.



     SECTION 4. Effect of Forbearance; Ratification. Except as expressly set forth herein,
the RLSA, the Swap Agreement and each of the other Transaction Documents remain in full force and
effect and are hereby ratified. This Forbearance shall not be deemed to expressly or impliedly
waive, amend, or supplement any provision of the RLSA or the Swap Agreement other than as
specifically set forth herein.



     SECTION 5. Expenses. The Borrower agrees to pay on demand all reasonable costs and
expenses of the Forbearing Parties and the Qualifying Swap Counterparty (including costs and
expenses of counsel for the Forbearing Parties and the Qualifying Swap Counterparty) incurred in
connection with the preparation, execution and delivery of this Forbearance.



     SECTION 6. Counterparts. This Forbearance may be executed in any number of
counterparts and by different parties on separate counterparts, and each counterpart shall be
deemed to be an original, and all such counterparts shall together constitute but one and the same
instrument.



     SECTION 7. Governing Law. This Forbearance shall be governed by, and construed in
accordance with, the internal laws of the State of New York without regard to the conflicts of law
principles thereof (other than Section 5-1401 of the New York General Obligations Law).



     SECTION 8. Section Headings. The various headings of this Forbearance are inserted
for convenience only and shall not affect the meaning or interpretation of this Forbearance or any
provision hereof.



     SECTION 9. Entire Agreement. This Forbearance is intended by the parties hereto to be
the final expression of their agreement with respect to the subject matter hereof, and is the
complete and exclusive statement of the terms thereof, notwithstanding any representations,
statements or agreements to the contrary heretofore made.



[SIGNATURE PAGES FOLLOW]




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



	 	 	 	 	 
	 	 	RESOURCE CAPITAL FUNDING II, LLC, as

Borrower
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	Name:	 	 
	 

	 	Title:	 	 
	 
	 	 	 	 
	 	 	LEAF FINANCIAL CORPORATION, as

Servicer
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	Name:	 	 
	 

	 	Title:	 	 






Forbearance and Reservation of Rights

(Resource Capital

Funding II, LLC)






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	 	 	MORGAN STANLEY BANK, N.A., as Lender

and Collateral Agent
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	Name:	 	 
	 

	 	Title:	 	 






Forbearance and Reservation of Rights

(Resource Capital

Funding II, LLC)






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	 	 	MORGAN STANLEY CAPITAL SERVICES

INC., as Qualifying Swap Counterparty
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	Name:	 	 
	 

	 	Title:	 	 






Forbearance and Reservation of Rights

(Resource Capital

Funding II, LLC)







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SCHEDULE A



“Covenant Failures” means the occurrence of any of the following events:




     (i) the Event of Default set forth in Section 7.01(k) of the RLSA,



     (ii) the Event of Default set forth in Section 7.01(n) of the RLSA,



     (iii) the Event of Default set forth in Section 7.01(o) of the RLSA,



     (iv) the Event of Default set forth in Section 7.01(q) of the RLSA,



     (v) the Event of Default set forth in Section 7.01(r) of the RLSA,



     (vi) the Program Termination Event set forth in clause (ii) of the definition
thereof in the RLSA,



     (vii) the Program Termination Event set forth in clause (x) of the definition
thereof in the RLSA,



     (viii) the Program Termination Event set forth in clause (xi)(2) of the definition
thereof in the RLSA and



     (ix) the Servicer Default set forth in clause (iv) of the definition thereof in the
RLSA.




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