<PAGE>
EXHIBIT 10.6(B)
FIFTH MODIFICATION OF
REVOLVING CREDIT LOAN AND
SECURITY AGREEMENT AND OTHER LOAN DOCUMENTS
THIS LOAN MODIFICATION AGREEMENT (this "MODIFICATION") made this
29th
day of September, 2005 by and among
RESOURCE AMERICA, INC. ("RAI"), RESOURCE
PROPERTIES XXIV, INC. ("RPI XXIV"),
RESOURCE PROPERTIES XL, INC. ("RPI XL"),
RESOURCE PROPERTIES XXX, INC. ("RPI XXX")
and RESOURCE PROPERTIES XXXI, INC.
("RPI XXXI"), each a Delaware corporation
(collectively, the "BORROWERS"), and
SOVEREIGN BANK, a federal banking
association, having an address of 1500 Market
Street, Suite 1420, Philadelphia,
Pennsylvania 19102 ("BANK" or "LENDER").
BACKGROUND
----------
A. Resource Properties, Inc., which merged into RAI on June
29, 2005, RPI XXIV, RPI XL, and Resource
Properties 53, Inc. ("RPI 53") (the
"ORIGINAL BORROWERS") and Bank entered into
a certain Revolving Credit Loan and
Security Agreement dated July 27, 1999 (the
"ORIGINAL LOAN AGREEMENT") wherein
the Original Borrowers established a line
of credit loan facility with Bank in
the amount of Fifteen Million Dollars
($15,000,000) (the "LOAN").
B. As security for the obligations of Original Borrowers under
the Loan Documents, RPI XL granted to
Lender that certain Leasehold Mortgage and
Security Agreement (the "LEASEHOLD
MORTGAGE") with regard to the real estate
known as Factors Walk - Phase Two,
Savannah, Georgia (the "REAL ESTATE").
C. Original Borrowers, and Bank entered into that certain
Modification of Revolving Credit Loan and
Security Agreement dated March 30,
2000 (the "FIRST MODIFICATION"), whereby,
inter alia, the principal amount of
the Loan was increased to Eighteen Million
Dollars ($18,000,000).
D. To evidence the revised Loan in the amount of $18,000,000,
Original Borrowers executed and delivered
to Bank that certain Replacement Line
Note dated March 30, 2000, in the amount of
$18,000,000 (the "NOTE").
E. Original Borrowers, RPI XXX, RPI XXXI, and Bank entered
into that certain Second Modification of
Revolving Credit Loan and Security
Agreement and Modification of Other Loan
Documents dated April 30, 2002 (the
"SECOND MODIFICATION"), whereby RPI 53
requested that Bank release it from its
obligations under the Loan and release
certain collateral related to RPI 53's
obligations (the "RPI 53 COLLATERAL") and
then to substitute RPI XXX and RPI
XXXI as additional makers under the Note
and add additional collateral owned by
RPI XXX and RPI XXXI to the security for
the Loan (the "ADDITIONAL COLLATERAL"),
in accordance with the terms therein.
F. Original Borrowers, RPI XXX, RPI XXXI, RPI XXIV, RPI XL and
Bank entered into that certain Third
Modification of Revolving Credit Loan and
Security Agreement dated September 15, 2003
(the "THIRD MODIFICATION") whereby
the term of the Loan was extended until
July 27, 2005.
<PAGE>
G. Borrowers and Bank entered into that certain Fourth
Modification of Revolving Credit Loan and
Security Agreement dated June 30, 2005
(the "FOURTH MODIFICATION") whereby (i) the
term of the Loan was extended, (ii)
RPI XXIV was released from its obligations
under the Loan Documents and (iii)
there was an acknowledgement that by
operation of law, since Resource
Properties, Inc., which was a Borrower,
merged into RAI, RAI is now a Borrower
under the Loan Documents
H. The Note, the Loan Agreement, the Leasehold Mortgage, the
Deed of Trust (as defined below) and all
other documents, instruments and
undertakings evidencing or securing the
Loan, as modified hereby and by the
First Modification, Second Modification,
Third Modification and Fourth
Modification (collectively, the "OTHER
MODIFICATIONS"), are hereinafter
collectively referred to as the "LOAN
DOCUMENTS"). All capitalized terms used
but not defined herein shall have the
meaning given to such terms in the Loan
Agreement.
H. Borrowers have now requested that Bank (i) accept as
additional Collateral the property known as
Wharf Lots 4 and 5 and located at
Bull and River Streets, Savannah, Chatham
County, Georgia (the "PREMISES") which
is owned by RPI XXIV and to accept the
Premises as additional Collateral under
the Note, the Loan Agreement and the other
Loan Documents, and (ii) acknowledge
RPI XXIV as a Borrower under the Loan
Documents as if they had never been
released in accordance with the terms of
the Fourth Modification, which Bank has
agreed to do, on the terms and conditions
as more fully set forth herein.
I. Contemporaneously herewith, RPI XXIV is executing and
delivering its Deed to Secure Debt,
Assignment of Rents, Security Agreement and
Financing Statement with regard to the
Premises (the "DEED OF TRUST").
AGREEMENT
---------
NOW THEREFORE, the parties hereto, intending to be legally
bound,
hereby agree as follows:
1. Definitions. As used in this Modification, all capitalized
terms
shall have the respective meanings provided
therefor herein or, in absence of
such provision, the respective meanings
provided therefor in the Loan Documents.
Without limiting the foregoing:
(a) References in the Loan Documents to the "Loan Agreement"
shall
mean and include the Loan Agreement as
modified by this Modification and the
Other Modifications.
(b) References in the Loan Documents to the "Note" shall mean
and
include the Note as modified by this
Modification and the Other Modifications.
(c) References in the Loan Documents to the "Loan Documents"
shall
mean and include the Loan Documents and the
Deed of Trust, all as modified by
this Modification and the Other
Modifications.
- 2 -
<PAGE>
(d) References in the Loan Documents to the Collateral shall
mean
and include the Collateral, as defined
therein, the Premises, and any Additional
Collateral.
(e) References in the Loan Documents to the terms "Borrowers"
shall
mean and include RAI, RPI XXX, RPI XL, RPI
XXXI and RPI XXIV.
(f) The term "Obligations" as used herein shall mean any and
all
Obligations of the Borrowers, or any of
them, under the Note, the Leasehold
Mortgage, the Loan Agreement, the
Collateral Documents and any other Loan
Document, as modified by this modification
and the other Modifications.
2. Confirmation of Indebtedness.
(a) Borrowers hereby confirm, acknowledge, and agree that as of
the
date hereof, the outstanding principal
balance of the Note is $0. Borrowers
further acknowledge and agree that the
foregoing principal balance from the date
stated is validly and duly owing by
Borrowers to Bank.
(b) Borrowers hereby confirm, acknowledge, and agree that as of
the
date hereof, the Borrowing Base is
$18,000,000.00.
(c) Borrowers hereby ratify, confirm and acknowledge that (i)
the
Note, the Collateral Documents, and the
other Loan Documents are each in full
force and effect as of the date hereof,
(ii) the Note, the Collateral Documents
and the other Loan Documents constitute
valid and legally binding obligations of
the Borrowers, (iii) no event of default,
or event which if continuing would
constitute an Event of Default, has
occurred under the Loan Documents, and (iv)
the Loan Documents are enforceable against
the Borrowers and its assets in
accordance with their respective terms.
(d) Not by way of limitation of anything herein or in the Loan
Documents, RPI XXIV hereby agrees to be
bound by the Note, the Loan Agreement
and other Loan Documents, as if it had not
been released from the Loan Documents
and acknowledges being an original
signatory thereto and a Borrower (as
applicable) listed therein, and RPI XXIV
agrees to comply with all covenants set
forth in the Loan Documents and hereby sets
forth its agreement to the remedies
and rights granted to Bank therein.
(e) In order to induce Bank to enter into this Modification,
the
Borrowers hereby reaffirm the various
representations and warranties made by the
Original Borrowers in the Loan Documents,
as if such representations and
warranties were made by each of the
Borrowers as of this date and set forth
fully herein except as such representations
and warranties may be otherwise
modified by the updated Schedules and
Exhibits attached hereto. In order to
induce Bank to enter into this
Modification, the Borrowers each hereby represent
and warrant to Bank that all
representations and warranties made by the Original
Borrowers in the Loan Documents are hereby
made by the Borrowers on and as of
the date hereof. Not by way of limitation
of the foregoing, the Borrowers hereby
further represent and warrant that:
- 3 -
<PAGE>
(i) RPI XXIV is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware,
with full power and authority to execute, deliver and comply
with this Modification and the Deed of Trust, and to carry on
its business as it is now being conducted and is duly licensed
or qualified as a foreign corporation in good standing in each
jurisdiction in which the character or location of the
properties owned by it or the business transacted by it
requires such licensing or qualification.
(ii) The execution and delivery by RPI XXIV of this
modification and the Deed of Trust and the other Borrowers of
this Modification and the consummation of the transactions
contemplated by the Loan Documents and this Modification and
the fulfillment and compliance with the respective terms,
conditions and provisions of the Loan Documents: (a) have been
duly authorized by all requisite corporate action of
Borrowers, (b) will not conflict with or result in a breach
of, or constitute a default (or might, upon the passage of
time or the giving of notice or both, constitute a default)
under, any of the terms, conditions or provisions of (i) any
applicable statute, law, rule, regulation or ordinance, (ii)
any Borrowers' articles of incorporation or bylaws, (iii) any
indenture, mortgage, loan or credit agreement or instrument to
which any of the Borrowers is a party or by which any of them
may be bound or affected, or (iv) any judgment or order of any
court or governmental department, commission, board, bureau,
agency or instrumentality, domestic or foreign, and (c) will
not result in the creation or imposition of any lien, charge
or encumbrance of any nature whatsoever upon any of the
property or assets of any of the Borrowers under the terms or
provisions of any such agreement or instrument, except liens
in favor of Bank.
(iii) This Modification has been duly executed by each of the
Borrowers and delivered to Bank, and the Deed of Trust has
been duly
executed by RPI XXIV, and this Modification and
other documents and instruments required hereby or executed in
connection herewith constitute legal, valid and binding
obligations of such parties, enforceable in accordance with
their respective terms.
(iv) None of the Borrowers is in violation of its respective
articles of organization or bylaws, nor is any such party in
default in the performance or observance of any of its
respective obligations, covenants or conditions contained in
any indenture or other agreement creating, evidencing or
securing any Indebtedness or pursuant to which any such
Indebtedness is issued, nor is any of the Borrowers in
violation of or in default under any other agreement or
instrument or any judgment, decree, order, statute, rule or
governmental regulation, applicable to any of them or by which
any of their properties may be bound or affected.
(v) There are no actions, suits or proceedings pending or, to
the best of any of the Borrowers' knowledge, threatened
against any of the Borrowers, or any properties of any of them
before any court or governmental department, commission,
board, bureau, agency or instrumentality, domestic or foreign,
which, if determined adversely to any Borrower, would have a
material adverse effect on such Borrower's financial or
operating condition.
- 4 -
<PAGE>
(vi) 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
any of the Borrowers.
(vii) On and as of the date of this Modification, to the best of
any
of the Borrowers' knowledge, there has occurred no default or
Event
of Default under the Note 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 any other Loan
Document.
(f) Each of the Borrowers hereby ratify and confirm that it is
fully
obligated under the Loan Documents and that
the Loan Documents remain in full
force and effect as modified hereby. The
Loan Documents, AND THE WARRANTS OF
ATTORNEY TO CONFESS JUDGMENT CONTAINED IN
THE NOTE AND ANY OF THE OTHER LOAN
DOCUMENTS, extend to and secure the payment
of the obligations of the Borrowers
under the Loan Documents (the "OBLIGA
