THIRD AMENDMENT TO LOAN AGREEMENT
THIRD
AMENDMENT TO LOAN AGREEMENT
This
THIRD AMENDMENT TO LOAN AGREEMENT (“Amendment”) is dated as of April 11, 2008
but effective as of March 31, 2008, by and among Resource
Capital Corp., a Maryland corporation (“Borrower”), Commerce
Bank, N.A., a national banking association, in its capacity as agent
(“Agent”), Commerce
Bank, N.A., 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 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 Agreement dated December 15, 2005, by and among
Borrower, Agent, Issuing Bank 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supplemented, restated, superseded, amended or replaced from time to time, the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 a revolving line of credit
not to exceed Twenty-Five Million Dollars ($25,000,000). All
capitalized terms used herein without further definition shall have the
respective meaning set forth in the Loan Agreement.
B. Borrower
has requested that Lenders make certain modifications to the Loan Agreement, and
Lenders have agreed to such request, 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. Upon the
effectiveness of this Amendment, the Loan Agreement shall be amended as
follows:
a. Section 1
of the Loan Agreement shall be amended by deleting the definitions of “ Consolidated Tangible Net
Worth” and “Maximum Revolving Credit
Amount,” and replacing each as follows:
Consolidated Tangible Net
Worth - At any time, the amount by which all of Borrower’s consolidated
assets (less (i) trademarks, copyrights, goodwill, covenants not to compete, and
all other assets which would be classified as intangible assets under GAAP; and
(ii) assets owing from Affiliates, officers, directors, shareholders and
employees), exceed all of Borrower’s Consolidated Total Liabilities, all as
would be shown on Borrower’s consolidated balance sheet prepared in accordance
with GAAP. Notwithstanding the foregoing, (i) in the event a
consolidated entity of Borrower has available for sale net losses in other
comprehensive income (as determined pursuant to Statement of Financial
Accounting Standards No. 115) exceeding the Maximum Exposure, the difference
between available for sale net losses and the Maximum Exposure shall be added
back in the calculation of Consolidated Tangible Net Worth; and (ii) neither
Borrower’s consolidated assets nor its Consolidated Total Liabilities shall
include any xxxx-to-market adjustments for derivatives in the form of interest
rate xxxxxx.
Maximum Revolving Credit
Amount – the sum of Ten Million Dollars ($10,000,000).
b. Section
5.8c. is hereby amended and restated in its entirety and shall read as
follows:
c. Consolidated Tangible Net
Worth. Borrower shall maintain a Consolidated Tangible Net
Worth of not less than Two Hundred Fifty Million Dollars ($250,000,000),
measured as of each fiscal quarter end.
2. Representations and
Warranties. Borrower warrants and represents to Agent, Issuing
Bank, and Lenders that:
a. Prior
Representations. By execution of this Amendment, Borrower
reconfirms all warranties and representations under the Loan Agreement and the
other Loan Documents respectively and restates such warranties and
representations as of the date hereof (except to the extent expressly related to
a prior date), all of which shall be deemed continuing until all of the
Obligations due to Lenders 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 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, the terms and provisions of which, except to the
extent modified by this Amendment are ratified and confirmed, and continue
unchanged in full force and effect. Any reference to the Loan
Agreement in this, or any other instrument, document, or agreement related
thereto, or executed in connection therewith, shall mean the Loan
Agreement as amended by this Amendment.
4. Confirmation of
Guarantor. By its respective signatures below, each Guarantor
hereby consents to, and acknowledges the terms and conditions of this Amendment,
and agrees that its Surety and Guaranty Agreement is ratified and
confirmed, 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.
5. Effectiveness
Conditions. This Amendment shall become effective upon the
following:
a. Execution
and delivery by Borrower of this Amendment;
b. Payment
by Borrower of all of Expenses; and
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c. Delivery
of authorizing resolutions on behalf of Borrower and Guarantors.
6. 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.
7. Modification. No
modification hereof or any agreement referred to herein shall be binding or
enforceable unless in writing and signed by Borrower, Agent, Issuing Bank, and
Lenders.
8. 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.
9. WAIVER OF JURY
TRIAL: BORROWER, AGENT, ISSUING BANK, AND LENDERS EACH HEREBY
WAIVE ANY AND ALL RIGHTS IT 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 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.
IN
WITNESS WHEREOF, the undersigned parties have executed this Amendment the day
and year first above written.
BORROWER:
By: _____________________________
Name:
_____________________________
Title:
_____________________________
[Signatures
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AGENT AND ISSUING BANK:
Commerce Bank, N.A.
By: _______________________________
Xxxxxx X. Xxxxx, Senior
Vice President
LENDER:
Commerce Bank, N.A.
By: _______________________________
Xxxxxx X. Xxxxx, Senior Vice
President
AGREED
TO AND
ACCEPTED GUARANTORS:
RCC Commercial, Inc.
By: _____________________________
Name:
_____________________________
Title:
_____________________________
:RCC Real Estate, Inc.
By: _____________________________
Name:
_____________________________
Title:
_____________________________
Resource TRS,
Inc.
By: _____________________________
Name:
_____________________________
Title:
_____________________________
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