fifthamendmt.htm


     

    
      

      

    

     

    
      FIFTH
AMENDMENT TO LOAN AND SECURITY AGREEMENT

       

       

      This
FIFTH AMENDMENT TO LOAN AND SECURITY AGREEMENT (“Amendment”), dated
December 19, 2008, is among Resource
America, Inc., a Delaware corporation (“Borrower”), TD BANK, N.A. (successor by
merger to Commerce Bank, N.A.), a national banking association, in its capacity
as agent (“Agent”), TD BANK,
N.A. (successor by merger to 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restated, superseded, amended or replaced from time to time, the “Loan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 (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, inter alia, 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.

       

      a. Section
6.8 of the Loan Agreement shall be amended by deleting subsection (a) and
replacing it as follows:

       

      (a) Consolidated Net
Worth - Borrower shall maintain at all times Consolidated Net Worth, to
be tested quarterly at the end of each fiscal quarter, of not less than the
following amounts for the following periods:

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          



      

      
        	 	
                September
      30, 2008 through December 30, 2008

              	
                $140,000,000

              
	 	
                December 31,
      2008 through March 30, 2009

              	
                An
      amount equal to Borrower’s Consolidated Net Worth as of December 31, 2008
      but in no event less than $135,000,000

              
	 	
                March 31,
      2009 through September 29, 2009

              	
                $140,000,000

              
	 	
                September
      30, 2009 through September 29, 2010

              	
                $150,000,000

              
	 	
                September
      30, 2010 through September 29, 2011

              	
                $160,000,000

              
	 	
                September
      30, 2011 and at all times thereafter

              	
                $170,000,000

              


      

       

      2. 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 and restates 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.

       

      3. 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.

       

      
        
          
          

        

        
          2

          
            

          

        

        
          
          

        

      

      4. Confirmation of
Indebtedness. Borrower confirms and acknowledges that as of the close of
business on December 18, 2008, it is indebted to Agent and Lenders under
the Loan Documents in the aggregate principal amount of $43,600,000 without any
deduction, defense, setoff, claim or counterclaim of any nature as of the date
of this Amendment, plus all fees, costs and Expenses incurred to date in
connection with the Loan Documents.

       

      5. 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.

       

      6. Effectiveness
Conditions.  This Amendment shall become effective upon the
satisfaction of the following conditions:

       

      a. Execution
and delivery of this Amendment by the parties hereto;

       

      b. Payment
by Borrower of all of Agent’s Expenses;

       

      c. Payment
by Borrower to Agent (for the benefit of Lenders) of a non-refundable amendment
fee of $50,000, of which $16,650 is for the account of U.S. Bank, National
Association and $33,350 is for the account of TD Bank, N.A., and

       

      d. Such
other items as Agent may reasonably require.

       

      7. 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.

       

      8. 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.

       

      9. 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.

       

      10. Waiver of Jury
Trial:  BORROWER, AGENT AND EACH 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 

       

      
        
          
          

        

        
          3

          
            

          

        

        
          
          

        

         

        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.

      

       

      


       

      [Signature
Pages to Follow]

       

      
        
          
          

        

        
          4

          
            

          

        

        
          
          

        

      

      IN
WITNESS WHEREOF, the undersigned parties have executed this Amendment the day
and year first above written.

       

      


      


      BORROWER:

      Resource
America, Inc.

      


      


      By: /s/ Thomas C. Elliott                                                                

      Name:
Thomas C. Elliott

      Title:  
Senior Vice President - Finance & Operations

      


      


      AGENT:

      TD BANK, N.A. (successor by
merger to Commerce Bank, N.A.)

      


      


      By: 
/s/ Gerard L. Grady                                                                                                                                  

      Name: 
Gerard L. Grady

      Title:   
Senior Vice President

      


      


      LENDERS:

      TD BANK, N.A. (successor by
merger to Commerce Bank, N.A.),
as
Lender

      


      
        By: 
/s/ Gerard L. Grady                                                                                                                                  

        Name: 
Gerard L. Grady

        Title:   
Senior Vice President

        


      

      


      U.S.
Bank, National Association, as Lender


      


      By: 
/s/ Jon B. Beggs                                                                                                                            

      Name:  Jon B.
Beggs                                                                         

      Title:   
Vice
President                                                                        

      


      


      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      AGREED TO AND
ACCEPTED:

      


      SURETIES:

      


      Apidos
Capital Management, LLC

      


      


      By: /s/ Thomas C. Elliott                                                                

      Name:
Thomas C. Elliott

      Title:  
Vice President & CFO

      


      


      Chesterfield
Mortgage Investors, Inc.

      


      


      By: 
/s/ Alan F. Feldman                                                                                                                               

      Name: 
Alan F. Feldman

      Title:   
President

      


      


      Coredo
Capital Management, LLC

      


      


      By: 
/s/ Jeffrey Blomstrom                                                                                                                            

      Name:  Jeffrey
Blomstrom

      Title:    President

      


      


      


      Ischus
Capital Management, LLC

      


      


      By: /s/ Thomas C. Elliott                                                                

      Name: Thomas
C. Elliott

      Title:   CFO

      


      


      


      RAI
Ventures, Inc.

      


      


      By: /s/ Thomas C. Elliott                                                                

      Name: 
Thomas C. Elliott

      Title:    SVP

      


      


      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      RCP
Financial, LLC

      


      


      By: 
/s/ Alan F. Feldman                                                                                                                               

      Name:  Alan
F. Feldman

      Title:   
President

      


      


      Resource
Credit Management, LLC

      


      


      By: /s/ Thomas C. Elliott                                                                

      Name:  Thomas
C. Elliott

      Title:    SVP

      


      


      Resource
Capital Manager, Inc.

      


      


      By: /s/ Thomas C. Elliott                                                                

      Name:  Thomas
C. Elliott

      Title:    SVP

      


      


      Resource
Capital Investor, Inc.

      


      


      By: /s/ Thomas C. Elliott                                                                

      Name:  Thomas
C. Elliott

      Title:    SVP

      


      


      Resource
Capital Partners, Inc.

      


      


      By: 
/s/ Alan F. Feldman                                                                                                                               

      Name:  Alan
F. Feldman

      Title:    SVP

      


      


      Resource
Credit Partners GP, Inc.

      


      


      By: /s/ Thomas C. Elliott                                                                

      Name:  Thomas
C. Elliott

      Title:    CFO

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      Resource
Financial Institutions Group,  Inc.

      


      


      By: /s/ Thomas C. Elliott                                                                

      Name:  Thomas
C. Elliott

      Title:    EVP

      


      


      Resource
Financial Fund Management, Inc.

      


      


      By: /s/ Thomas C. Elliott                                                                

      Name:  Thomas
C. Elliott

      Title:    SVP
and CFO

      


      


      Resource
Housing Investors I, Inc.

      


      


      By: 
/s/ Alan F. Feldman                                                                                                                               

      Name: Alan
F. Feldman

      Title:  
President

      


      


      Resource
Housing Investors II, Inc.

      


      


      By: 
/s/ Alan F. Feldman                                                                                                                               

      Name:  Alan
F. Feldman

      Title:   
President

      


      


      Resource
Housing Investors III, Inc.

      


      


      By: 
/s/ Alan F. Feldman                                                                                                                               

      Name: Alan
F. Feldman

      Title:  
President

      


      


      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      Resource
Housing Investors IV, Inc.

      


      


      By: 
/s/ Alan F. Feldman                                                                                                                               

      Name:  Alan
F. Feldman

      Title:   
President

      


      Resource
Leasing, Inc.

      


      


      By: /s/ Thomas C. Elliott                                                                

      Name:  Thomas
C. Elliott

      Title:    Treasurer

      


      


      Resource
Programs, Inc.

      


      


      By: 
/s/ Alan F. Feldman                                                                                                                               

      Name:  Alan
F. Feldman

      Title:   
President

      


      


      Resource
Properties VIII, Inc.

      


      


      By: 
/s/ Alan F. Feldman                                                                                                                               

      Name:  Alan
F. Feldman

      Title:   
President

      


      


      Resource
Properties XIV, Inc.

      


      


      By: 
/s/ Alan F. Feldman                                                                                                                               

      Name:  Alan
F. Feldman

      Title:   
President

      


      


      Resource
Properties XVII, Inc.

      


      


      By: 
/s/ Alan F. Feldman                                                                                                                               

      Name:  Alan
F. Feldman

      Title:   
President

      


      


      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      Resource
Properties XXIV, Inc.

      


      


      By: 
/s/ Alan F. Feldman                                                                                                                               

      Name:  Alan
F. Feldman

      Title:   
President

      


      Resource
Properties XXV, Inc.

      


      


      By: 
/s/ Alan F. Feldman                                                                                                                               

      Name:  Alan
F. Feldman

      Title:   
President

      


      


      Resource
Properties XXVI, Inc.

      


      


      By: 
/s/ Alan F. Feldman                                                                                                                               

      Name:  Alan
F. Feldman

      Title:   
President

      


      


      Resource
Properties XXX, Inc.

      


      


      By: 
/s/ Alan F. Feldman                                                                                                                               

      Name: Alan
F. Feldman

      Title:  
President

      


      


      Resource
Properties XXXI, Inc.

      


      


      By: 
/s/ Alan F. Feldman                                                                                                                               

      Name: Alan
F. Feldman

      Title:  
President

      


      


      Resource
Properties XXXIII, Inc.

      


      


      By: 
/s/ Alan F. Feldman                                                                                                                               

      Name:  Alan
F. Feldman

      Title:   
President

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      Resource
Properties XL, Inc.

      


      


      By: 
/s/ Alan F. Feldman                                                                                                                               

      Name:  Alan
F. Feldman

      Title:   
President

      


      Resource
Properties XLI, Inc.

      


      


      By: 
/s/ Alan F. Feldman                                                                                                                               

      Name:  Alan
F. Feldman

      Title:   
President

      


      


      Resource
Properties XLIX, Inc.

      


      


      By: 
/s/ Alan F. Feldman                                                                                                                               

      Name: Alan
F. Feldman

      Title:  
President

      


      


      Resource
Properties 54, Inc.

      


      


      By: 
/s/ Alan F. Feldman                                                                                                                               

      Name: Alan
F. Feldman

      Title:  President

      


      


      Resource
Properties XLVII, Inc.

      


      


      By: 
/s/ Alan F. Feldman                                                                                                                               

      Name: Alan
F. Feldman

      Title:  
President

      


      


      Resource
Real Estate, Inc.

      


      


      By: 
/s/ Alan F. Feldman                                                                                                                               

      Name:  Alan
F. Feldman

      Title:   
President

       

      
 

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      Resource
Real Estate Funding, Inc.

      


      


      By: /s/ Thomas C. Elliott                                                                

      Name:  Thomas
C. Elliott

      Title:    Treasurer

      


      


      Resource
Real Estate Holdings, Inc.

      


      


      By: 
/s/ Alan F. Feldman                                                                                                                               

      Name:  Alan
F. Feldman

      Title:   
President

      


      


      Resource
Rittenhouse, Inc.

      


      


      By: 
/s/ Alan F. Feldman                                                                                                                               

      Name:  Alan
F. Feldman

      Title:   
President

      


      


      Resource
Real Estate Management, LLC

      


      


      By: 
/s/ Alan F. Feldman                                                                                                                               

      Name:  Alan
F. Feldman

      Title:   
President

      


      


      RRE1
Duraleigh Member, LLC

      


      


      By: 
/s/ Alan F. Feldman                                                                                                                               

      Name: 
Alan F. Feldman

      Title:   
President

      


      


      RRE2
Duraleigh Member, LLC

      


      


      By: 
/s/ Alan F. Feldman                                                                                                                               

      Name:  Alan
F. Feldman

      Title:   
President