FOURTHAMENDMENT TO LOAN AGREEMENT

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EX-10.6A 2 exh10_6a.htm FOURTH AMENDMENT TO LOAN AGREEMENT exh10_6a.htm
 
 
 
EXHIBIT 10.6a

 
FOURTH AMENDMENT TO LOAN AGREEMENT
 
This FOURTH AMENDMENT TO LOAN AGREEMENT (“Amendment”) is dated as of July 22, 2008, but effective as of June 30, 2008 by and among Resource Capital Corp., a Maryland 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.) 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 Loan 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2005, by and among Borrower, Agent, Issuing Bank and Lenders (as the same has been or may be supplemented, restated, superseded, amended or replaced from time to time, the “Loan Agreement”), Lenders made available to Borrower a revolving line of credit. 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.           Amendment. 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 definition of “ Consolidated Cash Flow” and replacing it as follows:
 
Consolidated Cash Flow - For any period, Borrower’s Consolidated Net Income (or deficit) plus (a) Consolidated Interest Expense, plus (b) Consolidated Depreciation Expense, plus (c) Consolidated Amortization Expense, plus (d) Consolidated Tax Expense, plus (e) a one-time $25,485,955 impairment charge for the fiscal quarter ending September 30, 2007, minus (f) extraordinary gains, all as determined in accordance with GAAP.
 
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 and Guarantors of this Amendment; and
 
b.           Payment by Borrower of all of Expenses.
 
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
 
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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.
 

 
[SIGNATURES  ON NEXT PAGE]
 

                                                                
 
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IN WITNESS WHEREOF, the undersigned parties have executed this Amendment the day and year first above written.
 
BORROWER:

Resource Capital Corp.

By:  /s/ David J. Bryant                                                      
Name:  David J. Bryant
Title:    SVP & CFO


AGENT AND ISSUING BANK:

TD Bank, N.A.

By:  /s/ Gerard L. Grady                                                      
Gerard L. Grady,  Senior Vice President

LENDER:

TD  Bank, N.A.

By:  /s/ Gerard L. Grady                                                      
Gerard L. Grady, Senior Vice President
 

 
 
AGREED TO AND ACCEPTED                                         GUARANTORS:

Resource TRS, Inc.                                                            RCC Commercial, Inc.

By:  /s/ David J. Bryant                                                         By:  /s/ Thomas C. Elliott
Name:  David J. Bryant                                                          Name:   Thomas C. Elliott
Title:    CFO                                                                             Title:      SVP Finance & Operations
 
                                  RCC Real Estate, Inc.
                                 
                                   By:  /s/ Thomas C. Elliott                                                                
                       Name:  Thomas C. Elliott
                                                                                                   Title:    SVP Finance & Operations
 
 
[Signature Page to Fourth Amendment to Loan Agreement]
 
 
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