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FOURTH AMENDMENT TO REVOLVING CREDIT AGREEMENT AND
AMENDMENT TO LOAN DOCUMENTS
THIS FOURTH AMENDMENT TO REVOLVING CREDIT AGREEMENT AND AMENDMENT TO
LOAN DOCUMENTS (this "AMENDMENT") is made and entered into to be effective as of
the 30th day of June, 1998, by and between PMC COMMERCIAL TRUST (herein referred
to with its successors and assigns as the "BORROWER") and BANK ONE, TEXAS, N.A.,
a national banking association (herein referred to with its successors and
assigns as the "LENDER").
RECITALS:
A. Borrower and Lender executed that certain Revolving Credit
Agreement, dated as of May 12, 1995, as amended by that certain First Amendment
to Revolving Credit Agreement dated as of October 18, 1995, that certain Second
Amendment to Revolving Credit Agreement and Amendment to Loan Documents and
Renewal and Extension of Loan dated as of May 12, 1996, and by that certain
Third Amendment to Revolving Credit Agreement and Amendment to Loan Documents
and Renewal and Extension of Loan dated as of March 15, 1998 (the "LOAN
AGREEMENT"), pursuant to which the Lender has made and may hereafter make loans
to the Borrower, as evidenced by that certain Revolving Credit Note executed by
Borrower and dated as of May 12, 1995, payable to the order of Lender in the
maximum principal amount of $10,000,000.00, as increased, restated and otherwise
amended by that certain promissory note executed by the Borrower and dated as of
March 15, 1998, payable to the order of Lender in the maximum principal amount
of $20,000,000.00 (the "EXISTING REVOLVING CREDIT NOTE"). Except as otherwise
expressly provided herein, all capitalized terms used herein shall have the same
meanings assigned to such terms in the Loan Agreement.
B. The Borrower and Lender have agreed, subject to the terms and
conditions outlined herein and subject to the Borrower's agreement with the
terms and provisions hereof and of each and every other instrument and agreement
executed in connection herewith, to restructure the credit facilities made
available pursuant to the Loan Agreement and Existing Revolving Credit Note.
AGREEMENTS
In consideration of the premises, which are made a part hereof, and the
mutual covenants and agreements contained herein and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
parties hereto hereby amend the Loan Agreement and Loan Documents as follows:
EXHIBIT 10.8
Page 1 of 8
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SECTION I
AMENDMENTS TO THE LOAN AGREEMENT
The Loan Agreement is hereby amended in the following respects:
1.1 AMENDMENT TO SECTION 1.1.
(a) SECTION 1.1 of the Loan Agreement shall be and is
hereby amended to delete the definition of "BUSINESS DAY" contained
therein and to substitute the following definition in lieu thereof:
" 'BUSINESS DAY' shall have the meaning ascribed to
such term in that certain Fourth Amended and Restated
Revolving Credit Note dated as of June 30, 1998, executed by
the Borrower, payable to the order of the Bank in the maximum
principal amount of $30,000,000.00.
(b) SECTION 1.1 of the Loan Agreement shall be and is
hereby further amended to delete sub-part (a) from the definition of
"Combined Borrowing Base Availability" and to substitute the following
in lieu thereof:
"...(a) The Combined Borrowing Base Availability shall
never exceed the lesser of (i) $40,000,000.00, or (ii) the sum
of $30,000,000.00 plus the face amount of each Guidance Line
Note executed and delivered by the Borrower and accepted by
the Bank pursuant to SECTION 2.9 of this Agreement which has
not matured (whether by acceleration, the lapse of time or
otherwise)..."
(c) SECTION 1.1 of the Loan Agreement shall be and is
hereby further amended to delete the definition of "Guidance Line of
Credit" and to substitute the following in lieu thereof:
" 'GUIDANCE LINE OF CREDIT' means an uncommitted credit
facility that may, from time to time, in the sole and absolute
discretion of the Bank, be made available to the Borrower
pursuant to SECTION 2.9 of this Agreement in an aggregate
amount at any time outstanding up to, but not to exceed, the
lesser of (i) $10,000,000.00, or (ii) the sum of the maximum
face amounts of all Guidance Line Notes executed and delivered
by the Borrower and accepted by the Bank pursuant to SECTION
2.9 of this Agreement which have not matured (whether by
acceleration, the lapse of time or otherwise)."
EXHIBIT 10.8
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(d) SECTION 1.1 of the Loan Agreement shall be and is
hereby further amended to add the following as additional definitions
thereto:
" 'PURCHASED PROPERTY OR PROPERTIES' shall mean the
commercial real estate properties purchased by Borrower in
connection with the acquisition of Amerihost and more
particularly described on EXHIBIT "K" attached hereto,
unencumbered by liens except as described on EXHIBIT "I"
attached hereto."
" 'PURCHASE ADVANCE' shall mean the amount advanced
under the Borrowing Base in connection with a Purchased
Property."
(e) SECTION 1.1 of the Loan Agreement shall be and is hereby
further amended to delete the definition of "REVOLVING CREDIT NOTE"
contained therein and to substitute the following definition in lieu
thereof:
" 'REVOLVING CREDIT NOTE' means and refers to that
certain Fourth Amended and Restated Revolving Credit Note
dated as of June 30, 1998, executed by the Borrower, payable
to the order of Bank in the maximum principal amount of
$30,000,000.00, as the same may, from time to time, be
renewed, increased, extended, restated, amended or otherwise
modified."
(f) SECTION 1.1 of the Loan Agreement shall be and is
hereby further amended to delete the definition of "MAXIMUM BORROWING
BASE AVAILABILITY" contained therein and to substitute the following
definition in lieu thereof:
" 'MAXIMUM BORROWING BASE AVAILABILITY' shall mean
the lesser of (a) the sum of $30,000,000.00 plus the face
amounts of all Guidance Line Notes executed and delivered by
the Borrower and accepted by the Bank pursuant to SECTION 2.9
of this Agreement which have not matured (whether by
acceleration, the lapse of time or otherwise), or (b) the
Combined Borrowing Base Availability."
1.2 AMENDMENT TO SECTION 2.1. SECTION 2.1(a)(i) of the Loan
Agreement shall be and is hereby amended to delete the same in its entirety and
to substitute the following in lieu thereof:
"....(i) the sum of $30,000,000.00 plus the aggregate
face amounts of all Guidance Line Notes executed and delivered
by the Borrower and accepted by the Bank pursuant to SECTION
2.9 of this Agreement which have not matured (whether by
acceleration, the lapse of time or otherwise); or..."
EXHIBIT 10.8
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1.3. AMENDMENT TO ARTICLE 5. ARTICLE 5 of the Loan Agreement is
hereby amended by the addition of the following to the end thereof:
" 'SECTION 5.17. PURCHASED PROPERTIES. With respect
to each of the Purchased Properties listed on EXHIBIT "K", (a)
Borrower owns such property in fee simple, unencumbered by any
liens other than liens for taxes not yet due and payable and
the encumbrances listed on EXHIBIT "I"; (b) the address listed
on EXHIBIT "K" is the true and correct address of such
Purchased Property; (c) the appraised value listed on EXHIBIT
"K" is supported by a current Appraisal; and (d) neither the
condition nor the use of such Purchased Property is in
violation of any Environmental Laws.
1.4 AMENDMENT TO SECTION 6.8. SECTION 6.8 of the Loan Agreement is
hereby amended by adding the following after the first sentence thereof:
"Notwithstanding the foregoing, from June 30, 1998, through November 30, 1998,
the proceeds of the Advances made under this Agreement may be used by Borrower
for the additional purpose of funding the purchase of the Purchased Properties."
1.5 AMENDMENT TO ARTICLE 7.
(a) SECTION 7.1 of the Loan Agreement shall be and is
hereby amended by deleting the second and third sentences thereof.
(b) SECTION 7.8 is hereby waived during the Interim Period
only.
(c) SECTION 7.11 is hereby amended to add the following
subsection to the end of SECTION 7.11:
"...and (f) indebtedness, the proceeds of which are
used entirely to repay amounts owing by Borrower to Lender."
(d) SECTION 7.16 is hereby amended to add the following
subsection to the end of SECTION 7.16:
"(g) Sell, mortgage, transfer or otherwise convey any
interest in a Purchased Property, unless the Purchase Advance
associated with such Purchased Property is repaid in full."
EXHIBIT 10.8
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1.6 NOTICES, CERTIFICATES AND EXHIBITS. The forms of Notice of
Borrowing, Compliance Certificate and Borrowing Base Report shall be amended so
that, in each insistence where the amount of $20,000,000.00 appears, the sum of
(a) $30,000,000.00 plus (b) the sum of the maximum face amounts of all Guidance
Line Notes which have been executed and delivered by the Borrower and accepted
by the Bank in accordance with SECTION 2.9 of the Loan Agreement and which have
not matured (whether by acceleration, the lapse of time or otherwise) is
substituted for $20,000,000.00. The schedule of exhibits to the Loan Agreement
shall be amended to delete EXHIBIT "I" thereto, and to substitute the form of
EXHIBIT "I" which is attached to this Amendment as EXHIBIT "A" and made a part
hereof for all purposes, and to add as EXHIBIT "K" thereto the form of EXHIBIT
"K" attached to this Amendment as EXHIBIT "B" and made a part hereof for all
purposes, and said forms of EXHIBIT "I" and "K" shall be, and hereby do become,
a part of the Loan Agreement.
1.7 TEMPORARY AMENDMENT TO THE LOAN AGREEMENT. Lender and Borrower
have agreed that, for the time period beginning June 30, 1998, and continuing
through November 30, 1998, (the "INTERIM PERIOD"), Borrower may receive advances
under the Borrowing Base against the value of the Purchased Properties.
Accordingly, during the Interim Period only, "COMBINED BORROWING BASE
AVAILABILITY" shall mean that portion of the Loan allocated by Bank to Eligible
Mortgage Loans and Purchased Property, provided that the Borrowing Base
Availability allocated to an Eligible Mortgage Loan shall never exceed the
lesser of (a) the Collateral Value Applicable to such Eligible Mortgage Loan, or
(b) $750,000.00, if the Project which secures such Mortgage Loan is not a hotel
or motel and $2,000,000.00 with respect to all Mortgage Loans, and provided
further that the Borrowing Base Availability allocated to a Purchased Property
shall never exceed the lesser of (a) $20,000,000.00 or (b) forty percent (40%)
of the lesser of (i) Borrower's purchase price for such Purchased Property as
listed on EXHIBIT "K" to the Loan Agreement, or (ii) the Appraised Value of such
Purchased Property . The term "AFFECTED PROJECT" as used in SECTION 2.6(f) of
the Loan Agreement shall include any Purchased Property damaged or destroyed as
a result of fire or other casualty and the terms of SECTION 2.6(f) of the Loan
Agreement shall apply to any such damaged or destroyed Purchased Property. After
November 1, 1998, the definition of COMBINED BORROWING BASE AVAILABILITY shall
revert back to the previous definition set out in the Loan Agreement. On or
before November 30, 1998, Borrower shall repay in full all Purchase Advances,
and upon such payment the properties listed on EXHIBIT "K" shall cease to be
Purchased Properties. If Borrower fails to repay all Purchase Advances on or
before November 30, 1998, Borrower shall, by January 15, 1999, grant and deliver
to Lender, at Borrower's expense, a perfected first lien mortgage or deed of
trust against each Purchased Property securing the Loan in form acceptable to
Lender, along with original mortgagee's policies of title insurance issued with
respect to each such mortgage or deed of trust, and any Project Documents
requested by Lender pertaining to the Purchased Properties, and any other
documents reasonably requested by Lender to ensure that the Loan is secured by
liens against the Purchased Properties. Failure to deliver all such requested
instruments and documents or on before January 15, 1999, shall constitute an
Event of Default under the Loan Agreement.
EXHIBIT 10.8
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SECTION II
AMENDMENT TO THE REVOLVING CREDIT NOTE
2.1 FOURTH AMENDED AND RESTATED REVOLVING CREDIT NOTE.
Contemporaneously with the execution hereof, Borrower shall execute and deliver
to Bank a Fourth Amended and Restated Revolving Credit Note (herein so called)
dated as of June 30, 1998, in the maximum principal amount of $30,000,000.00
which shall, from and after June 30, 1998, constitute the "REVOLVING CREDIT
NOTE" contemplated by the Loan Agreement and Loan Documents.
SECTION III
AMENDMENT TO LOAN DOCUMENTS
3.1 REFERENCE TO THE LOAN AGREEMENT. Each of the Loan Documents is
hereby amended so that any reference in any Loan Document to the Loan Agreement
or to any other Loan Document shall mean a reference to the Loan Agreement or
such other Loan Document as amended hereby, and any reference in the Loan
Agreement or any other Loan Document to the Revolving Credit Note shall mean a
reference to the Fourth Amended and Restated Revolving Credit Note executed
contemporaneously herewith.
SECTION IV
MISCELLANEOUS
4.1 AUTHORITY. The Borrower hereby represents and warrants that
the execution, delivery and performance of this Amendment, all instruments,
agreements and other documents executed in connection herewith and all other
instruments, agreements and documents executed in connection with the Loan
Agreement have been duly authorized by all necessary action of the Borrower and
do not and will not: (a) violate any provisions of any agreement, law, rule,
regulation, order, writ, judgment, injunction, decree, determination or award
presently in effect to which Borrower is a party or to which it or any of its
assets may be subject; (b) result in, or require the creation or imposition of
any Lien (other than a Permitted Lien) upon or with respect to any asset now
owned by Borrower or any Collateral; or (c) result in a breach of or constitute
a default by Borrower (and Borrower is not in default) under any indenture, loan
or credit agreement or any other agreement or instrument to which it is a party
or by which it or any of its assets is bound or affected. Borrower further
warrants and represents that no approval, authorization, order, license, permit,
franchise or consent of or registration, declaration, qualification or filing
with any governmental authority is required in connection with the execution,
delivery or performance by Borrower of this Amendment or any other Loan
Document. Such instruments and agreements constitute the legal, valid and
binding obligations of the Borrower, enforceable against Borrower in accordance
with their respective terms, subject only to the applicable debtor relief laws.
EXHIBIT 10.8
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4.2 RATIFICATION. Borrower hereby ratifies and confirms the Loan
Agreement and Loan Documents, as renewed, extended, modified and otherwise
amended hereby, in all respects, and acknowledges and agrees that all of the
terms, provisions and covenants thereof, as renewed, extended, modified and
otherwise amended hereby and by the Third Amended and Restated Revolving Credit
Note, do and shall remain and continue in full force and effect, enforceable
against the Borrower and its assets in accordance with their terms.
4.3 FURTHER ASSURANCES. The Borrower covenants and agrees from
time to time to promptly execute, assign, endorse, and deliver to Lender all
documents, instruments, notices, agreements, assignments, pledges, statements,
and writings, and to do all other acts and things as the Lender may reasonable
request in order to more fully evidence and/or to carry out more fully the
intent and purposes of this Amendment, the Loan Agreement and other Loan
Documents.
4.4 MULTIPLE COUNTERPARTS. Multiple counterparts 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.
4.5 REPRESENTATIONS AND WARRANTIES. The Borrower hereby represents
and warrants that all representations and warranties contained in the Loan
Agreement and other Loan Documents are and continue to be true and correct in
all material respects, as if made on the date hereof, and nothing is omitted
therefrom that would cause the same to be misleading in any material respect.
4.6 APPLICABLE LAWS. THIS AMENDMENT SHALL BE CONSTRUED,
INTERPRETED AND ENFORCEABLE UNDER AND PURSUANT TO THE LAWS OF THE STATE OF TEXAS
AND APPLICABLE LAWS OF THE UNITED STATES.
4.7 NO ORAL AGREEMENTS. THIS WRITTEN LOAN AGREEMENT REPRESENTS
THE FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE
NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.
EXHIBIT 10.8
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IN WITNESS WHEREOF, the Borrower and the Lender have caused this
Amendment to be executed effective as of the date specified above.
BORROWER:
PMC COMMERCIAL TRUST
By:
--------------------------------
Printed Name:
----------------------
Title:
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LENDER:
BANK ONE TEXAS, N.A.
By:
--------------------------------
Printed Name:
----------------------
Title:
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EXHIBIT 10.8
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