SEVENTH MODIFICATION OF REVOLVING CREDIT LOAN AND SECURITY AGREEMENT AND OTHER LOAN DOCUMENTS
SEVENTH
MODIFICATION OF
REVOLVING
CREDIT LOAN AND
SECURITY
AGREEMENT AND OTHER LOAN DOCUMENTS
THIS
LOAN
MODIFICATION AGREEMENT (this “Modification”)
made
this 24th day of July, 2006 by and among RESOURCE AMERICA, INC.
(“RAI”),
RESOURCE PROPERTIES XXX, INC. (“RPI
XXX”),
RESOURCE
PROPERTIES XLI, INC. (“RPI
XLI”)
and
RESOURCE CAPITAL INVESTOR, INC. (“RCI”),
each a
Delaware corporation (collectively, the “Borrowers”),
and
SOVEREIGN BANK, a federal banking association, having an address of ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (“Bank”
or
“Lender”).
BACKGROUND
A. Resource
Properties, Inc., which merged into RAI on June 29, 2005,
RESOUCE
PROPERTIES XXIV, INC. (“RPI
XXIV”),
RESOURCE PROPERTIES XL, INC. (“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 “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 “Savannah 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,
Resource Properties XXXI, Inc. (“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 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, in accordance with the terms therein.
F. Original
Borrowers, RPI XXX, RPI XXXI, and Bank entered into that certain Third
Modification of Revolving Credit Loan and Security Agreement dated
September
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15,
2003
(the “Third
Modification”)
whereby the term of the Loan was extended until July 27, 2005.
G. Original
Borrowers, RAI, RPI XXX, RPI XXXI and Bank entered into that certain Fourth
Modification of Revolving Credit Loan and Security Agreement and Other Loan
Documents 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 under the Loan Documents, merged into RAI, RAI is
now
a Borrower under the Loan Documents
▇. ▇▇▇,
RPI
XXIV, RPI XL, RPI XXX, RPI XXXI and Bank entered into that Fifth Modification
of
Revolving Credit Loan and Security Agreement and Other Loan Documents dated
September 29, 2005 (the “Fifth
Modification”)
whereby Bank
(i)
accepted
as additional Collateral for the Loan the property known as Wharf Lots 4 and
5
and located at Bull and River Streets, Savannah, Chatham County, Georgia (the
“Georgia
Property”),
which
is owned by RPI XXIV pursuant to that certain Deed to Secure Debt, Assignment
of
Rents and Security Agreement dated September 29, 2005 from RPI XXIV in favor
of
Lender (the “Georgia
Mortgage”),
and (ii)
acknowledged RPI XXIV as a Borrower under the Loan Documents as if it had never
been released in accordance with the terms of the Fourth Modification, which
Bank agreed to do, on the terms and conditions as more fully set forth in the
Fifth Modification. In
connection with the Fifth Modification, an Allonge to Replacement Line Note,
dated September 29, 2005, was given by ▇▇▇, ▇▇▇ ▇▇, ▇▇▇ XXIV AND RPI XL (the
“First
Allonge”).
▇. ▇▇▇,
RPI
XXIV, RPI XL, RPI XXX and Bank entered into that Sixth Modification of Revolving
Credit Loan and Security Agreement and Other Loan Documents dated March 30,
2006
(the “Sixth
Modification”)
whereby Bank
agreed to (i)
accept and acknowledge RPI XLI as a Borrower under the Loan Documents, (ii)
accept as additional Collateral for the Loan a collateral assignment by RAI
of
all of its right title and interest in and to RPI XLI’s stock (the“RPI
XLI Shares”),
and
(iii)
release RPI XXXI as a Borrower under the Loan Documents.
J. On
April
6, 2006, Bank released the collateral pledged by RPI XXX which consisted of
a
collateral assignment of a $3,400,000 loan.
K. Borrowers
have now requested that Bank: (i) accept
and acknowledge RCI as a Borrower under the Loan Documents; (ii) accept as
additional Collateral for the Loan a collateral assignment by RCI of all of
its
right title and interest in and to 700,000 shares of Resource Capital Corp.,
a
Maryland corporation (the“RCC
Shares”);
(iii)
revise the amount of the Loan to $14,000,000; (iv) extend the maturity date
of
the Loan; (v) accept as further additional Collateral for the Loan, a collateral
assignment of (A) a loan from RPI XXX to Uman Realty, LLC, a New Jersey limited
liability company (“Uman”)
in the
amount of $2,800,000.00 (the “Headhouse
Loan”),
which
is secured by a first mortgage on the real property located in Philadelphia,
PA
known as Headhouse Piers 3 & 5 (the “Headhouse
Loan”)
and
(B)
all notes, documents, instruments and agreements evidencing and/or securing
such
loan (the “Headhouse
Loan Documents”);
(vi)
release the lien of the Georgia Mortgage on the Georgia Property
(each
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as
defined in this Modification), and the Leashold Mortgage on the Savannah Real
Estate; and (vii) release
RP XL and RP XXIV as Borrowers, which Bank has agreed to do on the terms and
conditions as more fully set forth herein.
L. To
evidence the collateral assignment of the RCC Shares, Bank and RCI,
contemporaneously with the execution hereof, are entering into that certain
Pledge and Security Agreement of even date herewith (the “RCI
Pledge Agreement”)
and
that certain Securities Account Sole Control Agreement among RCI, Lender, Credit
Suisse Securities (USA) LLC and Pershing LLC (the “Control
Agreement”).
M. To
evidence the collateral assignment of the Headhouse Loan, Bank and RPI XXX
contemporaneously with the execution hereof, are entering into that certain
Collateral Assignment of Note, Mortgage and Other Loan Documents (the
“Headhouse
Loan Assignment”)
with
respect to the collateral assignment of the Headhouse Loan.
N. In
connection with this Modification, an Allonge to Replacement Line Note, dated
of
even date hereof, shall be given by Borrowers to Lender (the “Second
Allonge”).
The
Note, the Loan Agreement, the RCI Pledge Agreement, the Headhouse Loan
Assignment and the Headhouse Loan Documents and all other documents, instruments
and undertakings evidencing and/or securing the Loan, (as modified hereby and
by
the First Modification, Second Modification, Third Modification, Fourth
Modification, the Fifth Modification and the Sixth Modification (collectively,
the “Other
Modifications”
and
this Modification) and all documents instruments and agreement executed and
delivered to Lender in connection with the Other Modifications and this
Modification 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.
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” or the ”Line Note” shall mean and include
the Note as modified by this Modification, the First Allonge, the Second
Allonge, any other allonges to the Note and the Other
Modifications.
(c) References
in the Loan Documents to the “Loan Documents” shall mean and include the Loan
Documents, as defined therein, all as modified by this Modification and the
Other Modifications.
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(d) References
in the Loan Documents to the terms “Borrowers” shall mean and include RAI, RPI
XXX, RPI XLI and RCI.
(e) References
in the Loan Documents to the amount of the “Loan” or the “Line” or the “Line of
Credit” being in an amount of up to $18,000,000.00, pursuant to the
Modifications, shall be replaced with “$14,000,000.00”.
(f) The
term
“Obligations” as used herein shall mean any and all Obligations of the
Borrowers, or any of them, under the Note, the Loan Agreement, the Collateral
Documents, the RCI Pledge Agreement 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, when adding in the value of the RCC Shares and Headhouse Loan as
Collateral under the Loan Agreement and removing the Georgia Property and the
Savannah Real Estate as Collateral, is $13,545,000.00.
(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, RCI hereby agrees
to be bound by the Note, the Loan Agreement and other Loan Documents, as if
it
were an original party thereto and a Borrower under the Loan Documents listed
therein, and RCI agrees to comply with all covenants set forth in the Loan
Documents and hereby set forth their 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:
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(i) RCI
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 RCI Pledge
Agreement,
and to
carry on its respective 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 RCI of this Modification and the RCI Pledge
Agreement 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
all of the 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 and delivered to Bank by each of the
Borrowers, and the RCI Pledge Agreement
and
Headhouse Loan Assignment have been duly executed and delivered by RCI and
RPI
XXX, respectively 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 of the Borrowers, would have a material adverse effect on
such
Borrower’s financial or operating condition;
(vi) No
authorization, consent, approval, license, exemption or any other action by
and
no registration, qualification or filing with any governmental agency
or
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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) RCI
is
the sole owner of the RCC Shares and has full right an authority to pledge
the
RCC Shares to Lender as contemplated hereby. The RCC Shares are and will be
owned by RCI free of any pledge, mortgage, hypothecation, lien, charge,
encumbrance, or security interest in such instruments or the proceeds thereof,
except such as are granted under the RCI Pledge Agreement;
(viii) With
respect to the Headhouse Loan: (i) the Headhouse Loan Documents are in full
force and effect; (ii) Uman is the borrower thereunder and has no claim, cause
of action, defense, set-off, counterclaim or challenge of any kind or nature
whatsoever against the payment of any of the sums owing under the Headhouse
Loan
Documents or the enforcement or validity of the Headhouse Loan Documents; (iii)
the Headhouse Loan Documents are in full force and effect and there are no
defaults thereunder; (iv) the outstanding principal balance thereunder, as
of
the date hereof, is $2,800,000; and (v) all representations and warranties
of
RPI XXX under the Headhouse Loan Assignment are true, correct and complete,
in
all material respects;
(ix) On
and as
of the date of this Modification, to the best of any of the Borrowers’
knowledge, there exists 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 “Obligations”),
as
modified by this Modification and the Other Modifications. Each of the Loan
Documents remains in full force and effect, as modified by this Modification
and
the Other Modifications and, along with the Premises and the other Collateral,
AND
THE WARRANTS OF ATTORNEY TO CONFESS JUDGMENT CONTAINED IN THE NOTE, AND ANY
OF
THE OTHER LOAN DOCUMENTS,
extend
to and continue to evidence and secure the Obligations and the Loan Documents,
each as modified by this Modification and the Other Modifications. To the extent
required in order to achieve the intent of this Modification, this Modification
shall be deemed to modify each of the Loan Documents.
(g) BORROWERS
HEREBY CONFIRM AND AGREE THAT THEY HAVE NO CLAIM, CAUSE OF ACTION, DEFENSE,
SET-OFF, COUNTERCLAIM OR CHALLENGE OF ANY KIND OR NATURE WHATSOEVER AGAINST
THE
PAYMENT OF ANY OF THE SUMS OWING UNDER THE NOTE, OR THE TERMS OF THE OTHER
LOAN
DOCUMENTS OR THE ENFORCEMENT OR VALIDITY OF THE NOTE, OR THE OTHER LOAN
DOCUMENTS, AND DO HEREBY REMISE, RELEASE AND FOREVER DISCHARGE ANY AND ALL
SUCH
CLAIMS, CAUSES OF ACTION, DEFENSES, SET-OFFS, COUNTERCLAIMS OR
CHALLENGES.
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3. Amendment
to Note.
Borrowers and Lender hereby acknowledge and agree that the term “Borrower” under
the Note shall mean all of the Borrowers, each of which hereby assumes, on
a
joint and several basis,
all
obligations of “Borrower” thereunder and is otherwise obligated thereunder as if
it were an original signatory thereto. Borrowers and Lender also agree that
the
face amount of the Note shall be $14,000,000.00. BORROWERS
HEREBY AGREE THAT THEY ARE, OR REMAIN, AS THE CASE MAY BE, BOUND BY THE WARRANT
OF ATTORNEY TO CONFESS JUDGMENT AS SET FORTH IN THE NOTE. THE BORROWERS HEREBY
CONFIRM THAT THEY HAVE AGREED TO BE BOUND BY THE FOREGOING AFTER RECEIVING
ADVICE FROM COUNSEL OF THEIR CHOOSING WITH REGARD TO THE SAME AND FURTHER
CONFIRM THAT THEIR AGREEMENT TO BE SO BOUND IS BASED ON A KNOWING, VOLUNTARY
AND
INTELLIGENT DECISION.
4. Amendment
to the Loan Agreement.
(a) The
following definitions in the Loan Agreement shall be amended as indicated
below:
(i)
The
term
“Borrower” as defined in the Loan Agreement shall mean the
Borrowers;
(ii)
The term
“Loan Documents” as defined in the Loan Agreement and the other Loan Documents
shall be expanded to include the RCI Pledge Agreement and the Headhouse Loan
Assignment, and shall no longer include the Georgia Mortgage or the Leasehold
Mortgage;
(iii)
The term
“Collateral” and/or “Substitute Collateral” as defined in the Loan Agreement
shall be expanded to include the RCC Shares and Headhouse Loan, and shall no
longer include the Georgia Property and the Savannah Real Estate, consequently,
Exhibit “A” shall be amended to include the RCI Pledge Agreement and the
Headhouse Loan Assignment and exclude the Georgia Mortgage and the Leasehold
Mortgage.
(iv) Replace
the definition of “Collateral Documents” with the following:
““Collateral
Documents” means the Assigned Loan Documents and all documents, instruments and
agreements evidencing the pledge, assignment or granting of any security
interest in and to any of the Real Estate, the RPI XLI Shares, the RCC Shares
or
any other Collateral and/or Substitute Collateral evidencing, securing and/or
otherwise relating to the Line, including without limitation those documents
and
instruments set forth on Exhibit “A” attached hereto and made a part
hereof, as the same may be amended from time to time in accordance with the
terms hereof.”
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(v) Replace
the definition of “Substitute Collateral” with the following:
““Substitute
Collateral” means all of the (a) real property or notes, mortgages and other
documents and instruments, evidencing and/or securing a commercial mortgage
loan
(or a participation interest therein) of which a Borrower is the owner (all
as
more fully described in Section 4.1 herein), where Bank shall have received
an
Appraisal of the real property subject to such loan and such other reports
(including environmental reports), surveys, and information relating thereto
as
Bank may request, and (b) such other real or personal property as Bank may
accept from a Borrower as collateral for the obligations of Borrower hereunder
and under the other Loan Documents, where such Substitute Collateral is
evidenced by mortgages, assignments, deeds of trust, mortgages, pledge
agreements and other documents, instruments and agreements as my be resonbaly
required by Bank. Upon the delivery of Substitute Collateral to Bank and the
acceptance thereof by Bank, all such documents and instruments shall constitute
Collateral Documents (and Exhibit “A” shall be amended accordingly) and the
real property, if any, to which they relate shall constitute Real Estate and
Collateral and the personal property, if any to which they relate, if any,
shall
constitute Collateral (and Exhibits “A” and “B” shall be amended
accordingly).
(b) The
amout
of the Loan is hereby changed to $14,000,000.00 and therefore, the amount of
the
“Line of Credit” or the “Loan”, as referenced in the Loan Agreement and the
other Loan Documents is hereby changed to $14,000,000.00.
(c) The
following definitions shall be added to the Loan Agreement :
““Assigned
Loan Documents” means any notes, mortgages, participation agreements, pledge
agreements, deeds of trust, assignments or other documents instruments or
agreements evidencing any loan or particpation assigned to Bank by any Borrower
as security for the Line Note, including, but not limited to, the Headhouse
Loan
Documents.”
““Headhouse
Loan Documents means any and all notes, documents, instruments and agreements
evidencing and/or securing the Headhouse Loan.
““Headhouse
Loan” means that certain mortgage loan from PRI XXX to Uman Realty LLC, a New
Jersey limited liability company in the amount of $2,800,000.
““Pledge
Agreements” means the RAI Pledge Agreement and the RCI Pledge
Agreement.
““RAI”
means Resource America, Inc, a Delaware corporation.
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““RAI
Pledge Agreement” means the Pledge Agreement from RAI in favor of Lender,
whereby RAI pledges and assigns to Lender, as collateral for the obligations
of
Borrower hereunder and under the other Loan Documents, the RPI XLI
Shares.”
““RCC”
means Resource Capital Corp., a Maryland corporation.
““RCC
Shares” means the shares of RCC, pledged to Lender, pursuant to the RCI Pledge
Agreement, by RCI for the obligations of Borrower hereunder and under the other
Loan Documents.”
““RCI” means Resource Capital Investor, Inc., a Delaware
corporation.”
““RCI
Pledge Agreement” means the RCI Pledge Agreement from RCI in favor of Lender,
whereby RCI assigns to Lender, as collateral for the obligations of Borrower
hereunder and under the other Loan Documents, the RCC Shares.”
““RPI XLI Shares” means the shares of Resource Properties XLI, Inc., pledged to
Lender, pursuant to the RAI Pledge Agreement, by RAI, as collateral for the
obligations of Borrower hereunder and under the other Loan
Documents.”
(d) Section
1.1 of the Loan Agreement shall be deleted in its entirety and replaced with
the
following:
“Line
of Credit.
Bank will establish for Borrower for and during the period from the date
hereof
and until July 27, 2009 (the “Expiration Date”), subject to the Extension
Periods (set forth and defined in Section 3.9 hereof), and further, subject
to
the terms and conditions hereof (including without limitation the Borrowing
Base
set forth in Section 1.4 herein), a revolving line of credit (the “Line”)
pursuant to which Bank will from time to time make loans to Borrower in an
aggregate outstanding principal amount not to exceed at any time Fourteen
Million Dollars ($14,000,000).”
(e) Section
1.2 of the Loan Agreement shall be deleted in its entirety and replaced
with:
““Use
of Proceeds Borrower
may use the advances under the Line for general working capital
purposes.”
(f) The
first
sentence of Section 1.4 of the Loan Agreement shall be deleted in its entirety
and replaced with the following:
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“Notwithstanding anything contained herein to the contrary, but subject to the
provisions of Section 4.4(b) herein, the aggregate outstanding principal balance
of the Line shall not exceed at any time the sum of the following (the
“Borrowing
Base”)
(i) sixty-five percent (65%) of the Appraised Value of the Real Estate (not
including such of the Real Estate that has been released from the lien of any
Collateral Documents or that otherwise relates to a Collateral Document that
has
been terminated or satisfied) plus
(ii)
with respect to the Intown Loan Documents, the lesser of (A) $6,430,000 less
the
value of any mortgage lien senior to the mortgage securing the Intown loan
documents or (B) anticipated cash flow from the Intown Loan divided by .12
plus
(iii) fifty percent (50%) of the fair market value of the RCC Shares, which
shares shall be marked to market monthly by Lender, plus
(iv)
with respect to the Headhouse Loan, the lesser of (A) $2,600,000 less the value
of any mortgage lien senior to the mortgage securing the Headhouse loan
documents or (B) the anticipated cash flow from the Headhouse Loan divided
by
.12. Notwithstanding the foregoing, in the event of a default under the Intown
Loan Documents or the Headhouse Loan Documents, Lender may determine to remove
the cash flow of the Intown Loan and/or the Headhouse Loan, as applicable,
from
the Borrowing Base, if Lender believes, in its reasonable discretion, that
the
collection of the Intown Loan, or the Headhouse Loan, as applicable, has been
materially impaired. The value assigned to the Collateral for purposes of
computing the Borrowing Base, is set forth on Schedule 1.4
hereto.”
(g) A
new
Section 1.5 shall be added to the Loan Agreement, as follows:
“Limitation
on Number of Tranches
Borrower shall be limited to having no more than three (3) LIBOR Rate tranches
outstanding at any one time.”
(h) Replace
Section 2.1 of the Loan Agreement with the following:
“Interest
on the Line.
Interest on the unpaid outstanding principal balance of the Line will accrue
from the date of the advance until final payment thereof, at Borrower’s option,
at either (i) equal to, or (ii) at the LIBOR Rate plus 200 basis points, a
per
annum rate equal to the Prime Rate in effect from time to time (such interest
rate to change immediately upon any change in the Prime Rate), or at the
Borrower’s option, at the LIBOR Rate plus 200 basis points.
The
“LIBOR Rate” means the offered rate for delivery in two London Banking Days (as
defined below) of deposits of U.S. Dollars which the British Bankers’
Association fixes as its LIBOR rate and which appears on the Telerate Page
3750
as of 11:00 a.m. London time on the day on which the Interest Period commences,
and for a period approximately equal to such Interest Period. If the first
day
of any Interest Period is not a day which is both a (i) business day, and (ii)
a
day on which US dollar deposits are transacted in the London interbank market
(a
“London Banking Day”), the LIBOR Rate shall be determined in reference to the
next preceding day which is both a business day and a London Banking Day. If
for
any reason the LIBOR Rate is unavailable and/or the Lender is unable to
determine the LIBOR Rate for any Interest Period, the LIBOR Rate shall be deemed
to be equal to the Prime Rate.
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10
-
“Interest
Period” means the period commencing on the date on which the interest rate under
the Loan is converted to (or is continuing as) the LIBOR Rate, and ending on
(but excluding) the day which numerically corresponds to such date one month
thereafter (or, if such month has no numerically corresponding day, on the
last
business day of such month).”
(i) Section
3.9 of the Loan Agreement shall be deleted in its entirety and replaced with
the
following:
“Bank
may elect to extend the Expiration Date for up to two, one-year periods (each
an
“Extension Period”), subject to the following terms and
conditions:
(i) On
or
before May 31 of each year commencing on May 31, 2009, Bank will notify Borrower
if (i) Bank has elected to extend the Expiration Date then in effect by an
Extension Period, or (ii) Bank has elected not to extend the Expiration Date
then in effect. A failure by the Bank to send any such notice shall be deemed
to
be an election by Bank not to extend the Expiration Date then in
effect;
(ii)
as
of
the date of the commencement of any Extension Period, there shall not have
occurred any Event of Default and there shall be, as of such date, no Potential
Default;
(iii)
as
of
the date of the commencement of any Extension Period, there shall have not
occurred any material adverse change in the financial condition of any Borrower
and/or the Collateral; and
(iv)
on
or
before the commencement date of any Extension Period, Borrower shall execute
or
cause to be executed any other documents reasonably requested by
Bank.
To
the extent that Borrower elects to extend the Expiration Date for an Extension
Period, the term the “Expiration Date” shall be the last day of such applicable
Extension Period.
In
the event that Bank determines in the exercise of its sole discretion that
it
will extend the Expiration date then in effect, Borrower shall, at least five
(5) days prior to the then current Expiration Date, pay to Bank an extension
fee
of Thirty-Five Thousand Dollars ($35,000). If Borrower shall fail to pay such
extension fee to Bank as and when required, Bank’s election to extend the
Expiration Date shall be deemed to be canceled and shall be null and void and
of
no further force or effect and the Expiration Date then in effect shall continue
as if Bank had not provided any notice of election to extend.”
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11
-
(j) Delete
Sections 4.1, 4.2 and 4.3 of the Loan Agreement in their entirety and replace
with the following:
“4.1 Assignment
and Security Interest.
As
security for the performance by Borrower of this Agreement and the other Loan
Documents and the payment of the Line Note and as security for the performance
of the Guaranty and all other liabilities of any Borrower to Bank (whether
absolute or contingent, matured or unmatured, direct or indirect, sole, joint,
several or joint and several, similar or dissimilar, related or unrelated,
due
or to become due or heretofore or hereafter contracted or acquired), Borrower
hereby pledges, assigns, transfers and sets over to Bank and grants to Bank
a
security interest in all of Borrower’s right, title and interest in and to the
following:
(a) all
of Borrower’s powers, privileges and other benefits under any and all Assigned
Loan Documents;
(b) the
immediate right to receive and collect all sums payable to or receivable by
Borrower under or pursuant to the provisions of all Assigned Loan Documents,
whether as principal, interest, casualty or insurance payments, or otherwise
(“Payments”);
(c) the
right to make all waivers and agreements, to give all notices, consents and
releases, and to take all action upon the happening of a Collateral Document
Default;
(d) the
right to do any and all other things whatsoever which Borrower is or may become
entitled to do under the Assigned Loan Documents, including without limitation
all rights to be substituted as a creditor in any bankruptcy proceeding
affecting any Obligor, Assigned Loan Documents, or Real Estate, with full voting
rights, the right to receive dividends, and the right to participate in the
administration of any plan, whether in liquidation or reorganization, and the
right to take any and all actions that Borrower may be entitled to take as
a
participant under any Assigned Loan Document. In further of the foregoing
assignment, Borrower hereby irrevocably authorizes and empowers Bank, in its
own
name or in the name of its nominee, or in the name of Borrower or as its
attorney, to ask, demand, ▇▇▇ for, collect and receive any and all Payments
to
which Borrower is or may become entitled under any Assigned Loan Document and
to
enforce compliance by any Obligor, or any maker, mortgagor, or other party
thereto, with all of the terms and provisions thereof;
-
12
-
(e) All
Deposit Accounts maintained by any Borrower, together with all cash deposited
in
the same.
4.2 Representations
Regarding Collateral.
Borrower represents and warrants that:
(a) Borrower
has full right and title to the Collateral and (either as owner of the Assigned
Loan Documents or a participation interest in and to the Assigned Loan
Documents) to the Assigned Loan Documents, free from
any
lien, security interest, encumbrance or other right, title and interest of
any
other person or entity.
(b) Borrower
has not made any currently effective assignment of any interest in any of the
Collateral or the Assigned Loan Documents other than to Bank pursuant to this
Agreement and the other Loan Documents.
(c) No
Obligor has any set-off, defense or counterclaim to any of its obligations
under
any Assigned Loan Document (as the same may have been modified by any
forbearance agreement relating thereto).
(d) Subject
to the provisions of any forbearance agreement relating thereto, all Assigned
Loan Documents are in full force and effect with respect to the payment
obligations arising under them.
(e) Except
as may be specifically provided in the Assigned Loan Documents, no Payments
have
been collected, anticipated, waived, released, discounted or otherwise
discharged or compromised except in accordance with their regularly scheduled
payment dates.
(f) There
is only one original note evidencing each loan to which the Assigned Loan
Documents relate, if applicable, only one original deed-in-lieu of foreclosure
relating to any loans to which the Assigned Loan Documents relate, and, if
applicable, only one Participation Certificate evidencing participation
interests comprising a portion of the Collateral, all of which, to the extent
applicable, have been delivered to Bank.
4.3 Covenants
Regarding Collateral.
So
long as the Line Note remains unpaid or Bank has any commitment under the Line,
without the prior written consent of Bank, which consent shall not be
unreasonably withheld or delayed:
(a) Borrower
shall not obtain any other loans or other financing secured by an encumbrance,
lien, mortgage, security interest or other interest in any of the Collateral,
or
assign, sell, transfer (voluntarily or by operation of law), or otherwise
dispose of any interest in any of the Collateral or the Real
Estate.
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13
-
(b) Borrower
shall receive or collect monthly (or otherwise if so provided by the terms
of
the Assigned Loan Documents) payment of principal and interest pursuant to
and
in accordance with the terms and conditions of the Assigned Loan
Documents.
(c) Prior
to the occurrence of an Event or Default, Borrower shall not alter, amend,
extend, cancel or otherwise change any terms or conditions of the Assigned
Loan
Documents if as a result thereof there would occur an Event of Default or
Potential Default. Following the occurrence of anEvent
of Default, Borrower shall not alter, amend, cancel or otherwise change any
provision of any of the Assigned Loan Documents.
(d) In
the event Borrower goes into possession of any of the Real Estate relating
to
the Assigned Loan Documents, should Bank thereafter decide to go into possession
pursuant to this Agreement, Borrower shall immediately vacate the affected
Real
Estate and perform whatever acts or execute whatever documents required by
Bank,
in its sole discretion, to expedite Bank’s possession of the affected Real
Estate.
(e) Borrower
shall keep accurate and complete records of Payments and the Collateral
Documents and shall furnish Bank with such information as Bank may request,
including without limitations, the information required by Section 8
herein.
(f) Following
the occurrence of an Event of Default Borrower, shall not exercise any right
or
remedy granted under any of the Assigned Loan Documents without the prior
written consent of Bank.
(g) Following
the occurrence of an Event of Default, Borrower shall not (i) waive, excuse,
condone or in any manner release or discharge any obligation, covenant or
agreement of any Obligor under any Assigned Loan Document; (ii) cancel,
terminate or permit the surrender of any Assigned Loan Document; or (iii)
solicit or accept any prepayment of monies under any Assigned Loan
Document.
(h) Borrower
shall not release or terminate any of its interest in, to or under any Assigned
Loan Document.
(i) Borrower
shall not propose or consent to any plan of reorganization or liquidation in
any
proceeding in the United States Bankruptcy Court with regard to any Assigned
Loan Documents, Real Estate, Collateral or Obligor.”
(k) In
Section 4.4, 4.5, 4.6, 4.7, both paragraphs numbered 4.8, 4.9, 4.10, and 4.11,
replace the terms “Collateral Documents” with “Assigned Loan Documents” and
replace the term “Collateral Document” with Assigned Loan Document”, wherever
such terms appear.
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14
-
(a) Schedules
5.3, 5.4, 5.7, 5.13, 5.18, and 5.22 to the Loan Agreement shall be replaced
with
the schedules attached hereto of the same numbers to reflect the inclusion
of
RCI as a Borrower, and any other changes.
(b) The
definition of “Deposit Accounts as set forth in Section 5.22 of the Loan
Agreement shall be amended to include all bank accounts of any Borrower (other
than RAI bank accounts at banks other than Bank), all of which are set forth
on
Schedule 5.22.”
(l) Replace
Section 6.22 of the Loan Agreement with the following:
“6.22 Bank
Accounts.
(a) Except
as otherwise permitted herein, no Borrower shall open or maintain any bank
accounts with respect to the Collateral, the Assigned Loan Documents or the
Real
Estate other than the Deposit Accounts and bank accounts maintained with Bank.
Each Borrower shall deposit or cause to be deposited into the Deposit Accounts
or such other accounts as may be maintained with Bank from time to the time
the
rentals and other income from the Real Estate and all other Payments. Any income
received with respect to the balance from time to time standing to the credit
of
the Deposit Accounts and any other deposit accounts maintained with Bank,
including any interest, shall remain, or be deposited in the Deposit Accounts
or
such other accounts.
(b) All
right, title and interest in and to the cash amounts on deposit from time to
time in the Deposit Accounts shall vest in Bank, shall constitute part of the
Collateral hereunder and shall not constitute payment of the Bank Indebtedness
until applied thereto as hereinafter provided. Each Borrower shall as promptly
as possible deposit the proceeds of any Collateral and all payments received
by
it into the Deposit Accounts. Until so deposited, all such proceeds shall be
held in trust by Borrower for and as the property of Bank and shall not be
commingled with any other funds or property of either of them. The balance
from
time to time standing to the credit of the Deposit Accounts shall, except as
set
forth in subsection (c) below, be distributed to Borrower in accordance with
the
provisions of the Depository Agreements.
(c) If
an
Event of Default shall have occurred and Bank shall have given notice to
Borrower of its intent to exercise exclusive control over the Deposit Accounts,
then (i) the applicable Borrower shall instruct all Obligors and other Persons
obligated in respect of any Assigned Loan Document or Real Estate to make all
payments in respect of the Assigned Loan Document, and shall use its best
efforts to cause them to do so, directly to the Deposit Accounts, and (ii)
no
Borrower shall be entitled to receive any distribution from the Deposit
Accounts.”
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15
-
(m) A
new
Section 6.23 shall be added to the Loan Agreement and shall read as
follows:
“6.23 RCC
Shares.
(a) Borrowers
represent and warrant that the RCC Shares have been registered under the
Securities Act of 1933, as amended ("Securities Act"), under a currently
effective Form S-11 shelf registration statement of RCC. Borrowers further
represent that, under a registration rights
agreement with RCC, of which Borrowers, or their subsidiaries, are
beneficiaries, RCC is required to use its commercially reasonable best efforts
to maintain the registration's effectiveness until the earlier of two years
following the registration's effective date or the date all shares covered
by
the registration have been sold or all shares not held by affiliates of RCC
are
eligible for sale pursuant to Rule 144(k) of the Securities Act."
(b) Borrowers
represent and warrant that the RCC Shares have been held by RCI since March
5,
2005 and were fully paid for by it on such date. Borrowers further represent
and
warrant that RCI complies with all of the conditions relating to a pledgor
of
securities set forth in Rule 144(d)(3)(iv) under the Securities
Act."
(n) Section
7.1 of the Loan Agreement shall be deleted in its entirety and replaced with
the
following:
“”Minimum
Tangible Net Worth” Borrower shall maintain a minimum Tangible Net Worth of One
Hundred Million Dollars ($100,000,000.000) plus eighty-five percent (85%) of
future equity offerings of Borrower at September 30, 2006 and at each calendar
quarter end thereafter. For purposes hereof, “Tangible Net Worth” shall be
defined as Total Assets less intangibles and less Liabilities, each determined
in accordance with GAAP.”
(o) Section
7.2 of the Loan Agreement shall be revised deleted in its entirety and replaced
with the following:
|
“Debt
Service Coverage Ratio. “Borrower shall maintain a ratio of (a) revenues,
calculated on an annualized basis, of the cash flow derived from
the
Headhouse Loan and the Intown Loan plus dividends received on account
of
the RCC Shares (annualized based upon the most recent calendar quarter),
to (b) the greater of (i) actual interest paid on the Line during
the
period of calculation, or (ii) $1,400,000.00, of not less than 1.15
to
1.0.”
|
(p) Exhibit
“A” and Exhibit “B” to the Loan Agreement shall be replaced with the exhibits
attached hereto of the same letters to reflect the inclusion of the RCC Shares
and new Headhouse Loan and the removal of the Georgia Property and the Savannah
Real Estate as Collateral and Substitute Collateral, and any other changes.
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16
-
5. Conditions
Precedent.
The
obligation of Bank to effect the modifications and agreements contained herein
is subject to the conditions precedent that:
(a) There
has
been no material adverse change in the financial or operating condition of
any
of the Borrowers since the date of the last submission of financial statements
to Bank.
(b) The
Borrowers shall have paid a fee to the Bank for the Bank’s agreement to extend
to the Maturity Date, as provided herein, in the amount of 75 basis points
on
the maximum amount of the Line.
(c) The
Borrower’s shall have paid Bank’s counsel fees incurred in connection with this
Modification.
(d) All
representations and warranties made by any of the Borrowers herein or in
connection with this Modification shall be true, correct and compete in all
material respects.
(e) Bank
shall have received all of the following documents, each of which shall be
in
form and substance satisfactory to Bank:
(i) Copies,
certified in writing by the secretaries or assistant secretaries of the
Borrowers, of (a) resolutions of their respective boards of directors evidencing
approval of this Modification and the other matters contemplated hereby and
the
execution and delivery by RCI of the RCI Pledge Agreement, and by RPI XXX of
the
Headhouse Loan Assignment and (b) each document evidencing other necessary
action and approvals, if any, with respect to this Modification, the RCI Pledge
Agreement or the Headhouse Loan Assignment;
(ii) Written
certificates by each of the secretaries or assistant secretaries of the
Borrowers as to the names and signatures of each Borrowers’ officers who are
authorized to sign this Modification, and the other documents or certificates
to
be executed and delivered by them pursuant hereto;
(iii) Evidence
satisfactory to Bank that the certificates of incorporation and bylaws of RAI,
RPI XL, RPI XXX and RPI XXI delivered to Bank on or about July 27, 1999 or
April
30, 2002, as applicable, and the articles of incorporation of RPI XLI delivered
to the Bank on March 20, 2006, have not been amended in any way (or if they
have
been amended, the nature of such amendment) and are in full force and effect,
and certified certificates of incorporation and bylaws of all of the other
Borrowers, as well as good standing certificates issued by the secretary of
state of the state of incorporation of each of the Borrowers;
(iv) Certificate
of incorporation of RCI, certified as true, correct and complete by the
secretary of state of the state of Delaware and bylaws or RCI, certified as
true, correct and complete by the secretary of RCI;
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17
-
(v) A
fully
executed copy of this Modification adding RCI as a Borrower and otherwise
modifying the Note consistent with the terms hereof;
(vi) The
following documents with respect to the RCC Shares;
(A) A
Pledge
and Security Agreement (the “Pledge
Agreement”)
of even
date herewith from RCI in favor of Bank; and
(B) The
Control Agreement.
(vii) The
following documents with respect to the Headhouse Loan;
(A) A
full
set of all of the Headhouse Loan Documents, which shall be in form and content
reasonably satisfactory to Lender, including the original note from Uman in
the
amount of the Headhouse Loan, which note shall be endorsed in favor of Lender
by
RPI XXX;
(B) The
Headhouse Loan Assignment; and
(C) Consent
and estoppel certificate from Uman with respect to the assignment of the
Headhouse Loan Assignment, in form and content as many be satisfactory to
Lender.
(viii) Opinion
of counsel from Borrowers’ counsel with respect to each Borrower’s due
formation,
the
validity and enforceability of this Modification, the Pledge Agreement, the
Headhouse Loan Assignment, the authority and capacity of the respective
Borrowers to execute such documents, the creation and perfection in favor of
Bank of a first priority security interest in and to the RCC Shares and the
Headhouse Loan Documents and such other matters as Bank may request;
and
(ix) Such
other documents as Bank may reasonably request in connection with this
Modification.
6. Reaffirmation
of Loan Documents, Accommodations and Collateral.
Borrowers hereby ratify and confirm that each of them is fully obligated under
the Loan Documents and that the Loan Documents remain in full force and effect
as modified hereby. The Assigned Loan Documents and the other Loan Documents
shall remain in full force and effect and shall be deemed hereby to extend
to
and secure the Obligations, including without limitation those created under
this Modification. To the extent required in order to achieve the intent of
this
Modification, this Modification shall be deemed to modify each of the Loan
Documents and, along with the Real Estate and other other Collateral extend
to
and continue to evidence and secure the Loan Documents and the Obligations
as
modified by this Modification.
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18
-
7. Miscellaneous.
(a) Paragraph
headings used in this Modification are for convenience only and shall not affect
the construction of this Modification.
(b) From
time
to time, Borrowers will execute and deliver to Bank such additional documents
and will provide such additional information as Bank may reasonably require,
to
carry out the terms of this Modification.
(c) Borrowers
hereby indemnify, hold harmless, and upon request will defend Bank and its
shareholders, officers, directors, employees, attorneys and agents, and their
respective
successors and assigns (collectively, the “Indemnified
Parties”)
from
and against any and all claims and liabilities to third parties, and will pay
and reimburse to the Indemnified Parties all losses, payments, reasonable costs
and expenses associated therewith, or with Bank’s defense (including without
limitation reasonable attorneys fees) which Bank may suffer, incur or be exposed
to by reason of or in connection with or rising out of (i) the transactions
evidenced by or referred to in or related to this Modification or any of the
Loan Documents, as modified by this Modification; and (ii) any actions or
omissions of any one or more of the Indemnified Parties which conforms with
the
terms of this Modification or the Loan Documents, or is in good faith and
connected therewith or with the enforcement thereof; provided,
however,
that
the Indemnified Parties shall not be indemnified, defended or held harmless
for
any consequential or indirect losses or damages, or any losses or damages which
were caused by the Indemnified Parties’ willful misconduct or gross negligence.
The provisions of this paragraph shall survive any cancellation, satisfaction,
termination or modification of this Modification, the Note, the Deed of Trust,
the Mortgage, any other Loan Document, and the repayment of the
Loan.
(d) This
Modification shall be governed by and construed in accordance with the laws
of
the Commonwealth of Pennsylvania.
(e) Borrowers
shall pay all costs and expenses of Bank in connection with the preparation,
execution, delivery, administration and enforcement of this Modification
(including title charges and the fees and out-of-pocket costs of counsel with
respect hereto).
(f) This
Modification may be signed in counterparts, all of which when taken together
shall constitute one and the same instrument.
(g) BORROWERS
ACKNOWLEDGE THAT THE NOTE, AND OTHER LOAN DOCUMENTS CONTAIN AUTHORIZATIONS
TO
CONFESS JUDGMENT AGAINST BORROWERS, THAT AT THE TIME ORIGINAL BORROWERS EXECUTED
THE NOTE, AND THE OTHER LOAN DOCUMENTS BORROWERS CONSULTED, AND IN CONNECTION
WITH THE EXECUTION OF THIS MODIFICATION AND THE EXECUTION OF THE DOCUMENTS
AND
INSTRUMENTS REQUIRED HEREBY HAVE CONSULTED LEGAL COUNSEL WITH RESPECT THERETO
AND THAT BORROWERS UNDERSTAND (AND AT THE TIME BORROWERS EXECUTED THE NOTE,
AND
OTHER LOAN DOCUMENTS BORROWERS UNDERSTOOD) THAT THE EXERCISE BY BANK
OF
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20
-
THE
AUTHORIZATIONS WILL RESULT IN THE ENTRY OF A JUDGMENT AGAINST BORROWERS AND
THE
SALE OR ATTACHMENT OF OR EXECUTION UPON BORROWERS’ PROPERTY (INCLUDING WITHOUT
LIMITATION REAL PROPERTY, PERSONAL PROPERTY AND BANK ACCOUNTS) WITHOUT PRIOR
NOTICE OR THE OPPORTUNITY FOR A HEARING.
Signature
lines follow on next page.
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21
-
IN
WITNESS WHEREOF, the parties hereto have executed this Modification as of the
date written above.
Witness/Attest: BORROWERS:
RESOURCE
AMERICA, INC., a Delaware corporation
______________________________ By:
__________________________________
Name:
Title:
RESOURCE
PROPERTIES XXX, INC., a Delaware corporation
______________________________ By:
__________________________________
Name:
Title:
RESOURCE
PROPERTIES XLI, INC., a Delaware corporation
______________________________ By:
__________________________________
Name:
Title:
RESOURCE
CAPITAL INVESTOR, INC., a Delaware corporation
______________________________ By:
__________________________________
▇▇▇▇▇▇
▇▇▇▇▇▇▇, CFO
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22
-
BANK:
SOVEREIGN
BANK, a federal banking association
Attest:
_____________________________
By:
________________________________
Name:
Title:
-
23
-
STATE
OF :
:
SS
COUNTY
OF :
BE
IT
REMEMBERED, that on this _______ day of July, 2006, personally came before
me,
the Subscriber, a Notarial Officer for the State and County aforesaid,
____________, the _____________ of RESOURCE AMERICA, INC. and
the
President
of
RESOURCE
PROPERTIES XXX, INC., and RESOURCE PROPERTIES XLI, INC. each a Delaware
corporation, each existing under the laws of the State of Delaware, party to
this instrument, known to me personally to be such, and acknowledged this
instrument to be the act and deed of the aforesaid corporations, that the
signature of the officer thereto is in his own proper handwriting, and that
his
act of sealing, executing, acknowledging and delivering said instrument was
duly
authorized by the aforesaid corporations.
IN
WITNESS WHEREOF, I have hereunto set may hand and official seal.
_____________________________
Notary
Public
STATE
OF :
:
SS
COUNTY
OF :
BE
IT
REMEMBERED, that on this _____day of July, 2006, personally came before me,
the
Subscriber, a Notarial officer of the State and County aforesaid, ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, the Chief Financial officer of RESOURCE CAPITAL INVESTOR, INC., a
Delaware corporation, existing under the Laws of the State of Delaware
party
to
this instrument, known to me personally to be such, and acknowledged this
instrument to be the act and deed of the aforesaid corporations, that the
signature of the officer thereto is in his own proper handwriting, and that
his
act of sealing, executing, acknowledging and delivering said instrument was
duly
authorized by the aforesaid corporations.
IN
WITNESS WHEREOF, I have hereunto set may hand and official seal.
_____________________________
Notary
Public
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24
-
EXHIBIT
“A”
Collateral
|
A.
|
Resource
Properties XXX, Inc.
(Headhouse)
|
Collateral
Assignment of (i) Leasehold Mortgage dated April 27, 2006 covering real property
and improvements known as The Headhouses of Piers 3 and ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇; (ii) assignment of leases dated April 27, 2006;
B. Collateral
Assignment of that certain loan in the amount of $6,750,000.00 from RPI XLI
to
Intown Development Corporation, a Connecticut corporation and National Housing
Partnership, a District of Columbia limited partnership, dated ____ and all
documents and instruments evidencing and/or securing the same;
C. Resource
America, Inc.
All
issued and outstanding shares of Resource Properties XLI, Inc.
D. Resource
Capital Investor, Inc.
700,000
shares of the stock of Resource Capital Corp.
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25
-
EXHIBIT
“B”
Real
Estate
1. ▇-▇
▇.
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇
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26
-
SCHEDULE
5.3
Ownership
Interests of Resulting Borrowers
1. Resource
America, Inc. is a public company
|
2.
|
Resource
Properties XXX, Inc., Resource Properties XLI, Inc. and Resource
Capital
Investor, Inc. are all owned by Resource America,
Inc.
|
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27
-
SCHEDULE
5.4
Stock
Owned by Resulting Borrowers
See
attached.
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28
-
SCHEDULE
5.7
Pending
Litigation or Proceedings
Pending
litigation matters involving Resource America, Inc.:
|
1.
|
Cherry,
et al. v. Resource America, Inc., et al.,
New York Supreme Court, Chautauqua County, No.
K1-2000-171.
|
|
2.
|
Pyramid
Video, Inc. V. National Press Building L.P., et al.,
District of Columbia Superior Court, No.
▇▇-▇▇▇▇▇▇▇.
|
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29
-
SCHEDULE
5.13
Names
and Addreses of Resulting Borrowers
Resource
America, Inc. - ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President
Resource
Properties XXIV, Inc. - ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
Resource
Properties XLI, Inc. - ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
Resource
Capital Investor, Inc. - ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President
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30
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SCHEDULE
5.18
Encumbrances
The
property and assets of Resulting Borrowers are not subject to any lien,
encumbrance or security interest except as set forth below:
1. 3
- ▇ ▇.
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a. $2,800,000
Leasehold Mortgage held by Resource Properties XXX, Inc.
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31
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SCHEDULE
5.22
Permitted
Bank Accounts
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United Bank
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Resource
Properties XXX, Inc.
80041-56064
00042-47108
Resource
Properties XLI, Inc.
42-92665
At
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United Bank
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▇▇▇▇▇▇,
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Sovereign
Bank
0322035589