FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER
This First Amendment to the Agreement and Plan of Merger (the
"Amendment") is made and entered into as of this 1st day of August, 2003, by and
between PMC Commercial Trust, a Texas real estate investment trust ("Trust"),
and PMC Capital, Inc., a Florida corporation that has elected to be regulated as
a business development company under the Investment Company Act of 1940, as
amended ("Capital").
RECITALS:
WHEREAS, Trust and Capital entered into that certain Agreement and Plan
of Merger dated as of March 27, 2003 (as amended or modified from time to time,
the "Agreement");
WHEREAS, the Agreement entitles either Trust or Capital to terminate
the Agreement if the Merger (as defined in the Agreement) is not consummated by
December 31, 2003; and
WHEREAS, Trust and Capital desire to amend the Agreement to extend such
termination date from December 31, 2003 to February 29, 2004.
NOW, THEREFORE, in consideration of the foregoing premises, the mutual
promises and agreements hereinafter set forth, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Trust and Capital hereby agree as follows:
1. Definitions. All capitalized terms used in this Amendment shall have
the meanings given to them in the Agreement, unless otherwise specifically
defined herein.
2. Amendment to Section 11.1(e). Effective as of the date hereof,
Section 11.1(e) of the Agreement is hereby amended to read in its entirety as
follows:
(e) by either Trust or Capital, if the Merger shall not have
been consummated before February 29, 2004; provided, however,
that a party that has willfully and materially breached a
representation, warranty or covenant of such party set forth
in this Agreement shall not be entitled to exercise its right
to terminate under this Section 11.1(e);
3. Effect. The terms and provisions set forth in this Amendment shall
modify and supersede all inconsistent terms and provisions set forth in the
Agreement and except as expressly modified and superseded by this Amendment, all
of the terms, provisions and conditions of the Agreement are ratified and
confirmed and shall remain in full force and effect.
4. Counterparts. This Amendment may be executed in counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same agreement.
5. Applicable Law. This Amendment shall be governed by the laws of the
State of Texas, without regard to the principles of conflicts of law thereof.
6. Entire Agreement. This Amendment and the Agreement contain the
entire agreement and understanding among the parties hereto with respect to the
subject matter hereof and supersede all prior agreements and understandings
relating to the subject matter hereof.
7. Severability. If any provision of this Amendment shall be held
invalid or unenforceable by any court of competent jurisdiction, such holding
shall not invalidate or render unenforceable any other provision hereof.
IN WITNESS WHEREOF, the undersigned have caused this Amendment to be
effective as of the date first above written.
PMC COMMERCIAL TRUST,
a Texas real estate investment trust
By: /s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx
Executive Vice President and
Chief Operating Officer
PMC CAPITAL, INC.,
a Florida corporation
By: /s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx
Chief Executive Officer
