FOURTH AMENDMENT TO LOAN AND
SECURITY AGREEMENT
This FOURTH AMENDMENT TO LOAN AND SECURITY
AGREEMENT (“Amendment”), dated September 30, 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supplemented, restated, superseded, amended or replaced from time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 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, 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 1 of the
Loan Agreement shall be amended by deleting the definition of
Consolidated Net Worth and replacing it as
follows:
Consolidated
Net Worth – At any
time, the amount by which all of Borrower’s consolidated
assets plus Subordinated Debt plus unrealized losses of Leaf
attributable to interest rate Hedging Agreements exceed all of
Borrower’s Consolidated Total Liabilities, all as would be
shown on Borrower’s consolidated balance sheet prepared in
accordance with GAAP.
b. Section 1 of the
Loan Agreement shall be amended by adding a new definition of
Senior Management Fee Floor as follows:
Senior
Management Fee Floor – From September 30, 2008 through March
30, 2009, Forty Million Dollars ($40,000,000), and on March 31,
2009 and each month end thereafter, Twenty Million Dollars
($20,000,000).
c. Section 1 of the
Loan Agreement shall be amended by deleting the definition of
Senior Management Fee Reserve and replacing it as
follows:
Senior
Management Fee Reserve – An amount (if any) equal to seventy five
percent (75%) of the amount by which the Senior Management Fee
Floor 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 until eliminated or adjusted
based on Borrower’s delivery of a subsequent Senior
Management Fee Certificate.
d. 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 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 t
