This SIXTH AMENDMENT TO LOAN AND SECURITY
AGREEMENT (“Amendment”), dated March 26, 2009, is among
Resource America,
Inc. , a Delaware corporation (“Borrower”),
TD BANK, N.A ., a national banking association, in its
capacity as agent (“Agent”), TD 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supplemented, restated, superseded, amended or replaced from time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 . Upon the effectiveness of this
Amendment:
a. Section 1 of the
Loan Agreement shall be amended by deleting the definitions of
Adjusted Revolving Credit Base Rate , Maximum Revolving
Credit Amount , Revolving Credit LIBOR Rate and
Revolving Credit Maturity Date and replacing each as
follows:
Adjusted
Revolving Credit Base Rate - The Base Rate plus two hundred
twenty-five (225) basis points.
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 Forty-Five Million
Dollars ($45,000,000).
Revolving
Credit LIBOR Rate - The
Adjusted LIBOR Rate plus three hundred fifty (350) basis
points.
Revolving
Credit Maturity Date -
May 31, 2009.
b. Schedule A to the
Loan Agreement shall be replaced in its entirety with
Schedule A as attached to this Amendment.
c. 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:
December 31, 2008 through June 29, 2009
$135,000,000
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.
4. Confirmation of
Indebtedness .
