exh10_1afirstamdcommerce.htm


     

    
      

      

    

    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      restated, superseded, amended or replaced from time to time, the “Loan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

        
          

        

      

      
        
        
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.

    

     

    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
      Rittenhouse, 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.

            	 	
              
                66.66666666%

              

            	 	
              
                $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.

    1701
      Route 70 East

    Cherry
      Hill, NJ 08034

    Attn:
      Gerard L. Grady

    Telecopier:
      856-751-6884

    


    U.S.
      Bank, National Association

    777
      East
      Wisconsin Avenue

    Milwaukee,
      Wisconsin 53202

    Attn:
      Jon
      Beggs

    Telecopier:
      414-765-6236

     

    (Schedule
      B to First Amendment to Loan & Security Agreement)

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    SCHEDULE
      “C”

     

    None

     

     

    (Schedule
      C to First Amendment to Loan & Security Agreement)