EXHIBIT 10.17
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is entered
into as of June 5, 2000, among PMC COMMERCIAL TRUST, a real estate investment
trust organized under the laws of the State of Texas ("Borrower"), certain
Lenders, and BANK ONE, TEXAS, N.A., a national banking association
("Administrative Agent").
PRELIMINARY STATEMENT:
Borrower, Administrative Agent and Lenders are party to that certain
Credit Agreement (as renewed, extended, amended and restated, the "Credit
Agreement") dated as of November 29, 1999, pursuant to which the Lenders have
made and may hereafter make loans to Borrower. Borrower, Administrative Agent
and Lenders have agreed to amend the Credit Agreement in order to allow Borrower
to establish and implement a stock buyback plan.
Accordingly, for adequate and sufficient consideration, the receipt of
which is hereby acknowledged, Borrower, Administrative Agent and Lenders agree
as follows:
1. Defined Terms; References. Unless otherwise stated in this Amendment (a)
terms defined in the Credit Agreement have the same meanings when used in this
Amendment and (b) references to "Sections," "Schedules" and "Exhibits" are to
sections, schedules and exhibits to the Credit Agreement.
2. Amendments.
(a) A new defined term is added to Section 1.1 of the Credit Agreement
as follows, to be inserted in alphabetical order:
"Stock Buyback Program" means Borrower's stock
buyback program, whereby Borrower may spend up to
$5,000,000 in order to purchase its Common Shares (as
defined in Borrower's Declaration of Trust on file
with the Dallas County Clerk's Office, State of
Texas, as certified to Administrative Agent and
Lenders by Borrower's Assistant Secretary on November
29, 2000) from the public during the two-year period
beginning on June 6, 2000 and ending on June 6, 2002.
(b) Section 7.1(a) of the Credit Agreement is amended in its entirety
as follows:
(a) Subject to the other provisions in the Credit
Documents, including, without limitation, clause (b)
below, the proceeds of all Borrowings will be used to
either (i) finance Borrower's Mortgage Loan
origination, (ii) finance Borrower's purchase of
Qualifying Real Estate, or (iii) finance the purchase
of shares contemplated by the Stock Buyback Program.
The initial advances under this agreement will also
be used to retire certain bridge loan indebtedness
owing under the Existing Agreement.
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(c) Section 9.9(b) of the Credit Agreement is amended in its entirety
as follows:
(b) if no Event of Default or Potential Default
exists or would exist after giving effect to the
Distribution, and so long as any such Distributions
are made in the ordinary course of business
consistent with sound business practices, the
following Distributions by Borrower: (i)
Distributions declared or paid during any fiscal year
which do not exceed the sum of (A) 100% of Funds from
Operations for that fiscal year, plus (B) if paid by
May 30 during that year, the portion of the
then-preceding fiscal year's Distributions that would
have been permitted under clause (A) above that did
not represent any carryover from earlier years and
was not declared and paid during that preceding
fiscal year, (ii) up to an aggregate of $5,000,000 in
treasury stock purchases made or declared during the
term of this agreement and made in connection with
the Stock Buyback Program or otherwise, and (iii) up
to an aggregate of $2,000,000 of other Distributions
made or declared during the term of this agreement.
(d) Table 1 of the Schedule attached to the form of Compliance
Certificate attached as Exhibit K to the Credit Agreement is amended in its
entirety as set forth on Annex A attached hereto.
3. Conditions Precedent. Notwithstanding any contrary provisions, the foregoing
paragraphs in this Amendment are not effective unless and until (a) the
representations and warranties in this Amendment are true and correct and (b)
Lender receives counterparts of this Amendment executed by each party named
below.
4. Ratifications. This Amendment modifies and supersedes all inconsistent terms
and provisions of the Credit Documents, and except as expressly modified and
superseded by this Amendment, the Credit Documents are ratified and confirmed
and continue in full force and effect. Borrower, Administrative Agent and
Lenders agree that the Credit Documents, as amended by this Amendment, continue
to be legal, valid, binding and enforceable in accordance with their respective
terms. Without limiting the generality of the foregoing, Borrower hereby
ratifies and confirms that all Liens heretofore granted to Administrative Agent
on behalf of the Lenders were intended to, do, and continue to secure the full
payment and performance of the Obligation. Borrower agrees to perform such acts
and duly authorize, execute, acknowledge, deliver, file and record such
additional assignments, security agreements, modifications or amendments to any
of the foregoing, and such other agreements, documents, and instruments as
Administrative Agent or Lenders may reasonably request in order to perfect and
protect those Liens and preserve and protect the rights of Administrative Agent
and Lenders in respect of all present and future Collateral.
5. Representations and Warranties. Borrower hereby represents and warrants to
Administrative Agent and Lenders that (a) this Amendment and any Credit
Documents to be delivered under this Amendment have been duly executed and
delivered by Borrower, (b) no action of, or filing with, any Governmental
Authority is required to authorize, or is otherwise required in connection with,
the execution, delivery, and performance by Borrower of this
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Amendment and any Credit Document to be delivered under this Amendment, (c) this
Amendment and any Credit Documents to be delivered under this Amendment are
valid and binding upon Borrower and are enforceable against Borrower in
accordance with their respective terms, except as limited by any applicable
Debtor Relief Laws, (d) the execution, delivery and performance by Borrower of
this Amendment and any Credit Documents to be delivered under this Amendment do
not require the consent of any other Person and do not and will not constitute a
violation of any Governmental Requirements, agreements or understandings to
which Borrower is a party or by which Borrower is bound, (e) the representations
and warranties contained in the Credit Agreement, as amended by this Amendment,
and any other Credit Document are true and correct in all material respects as
of the date of this Amendment, and (f) as of the date of this Amendment, no
Event of Default or Potential Default exists or is imminent.
6. References. All references in the Credit Documents to the "Credit Agreement"
refer to the Credit Agreement as amended by this Amendment. This Amendment is a
"Credit Document" referred to in the Credit Agreement and the provisions
relating to Credit Documents in the Credit Agreement are incorporated by
reference, the same as if set forth verbatim in this Amendment.
7. Counterparts. This Amendment may be executed in any number of counterparts
with the same effect as if all signatories had signed the same document.
8. Parties Bound. This Amendment binds and inures to the benefit of Borrower,
Administrative Agent and each Lender, and, subject to Section 14 of the Credit
Agreement, their respective successors and assigns.
9. Entirety. THIS AMENDMENT, THE CREDIT AGREEMENT AS AMENDED BY THIS AMENDMENT,
AND THE OTHER CREDIT DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES
FOR THE TRANSACTIONS THEREIN, AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENT BETWEEN THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENT BETWEEN THE PARTIES.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.
SIGNATURE PAGE FOLLOWS.]
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EXECUTED as of the date first stated above.
BANK ONE, TEXAS, N.A.,
as Administrative Agent and a Lender
By:
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Xxxx X. Xxxxxx, First Vice President
PMC COMMERCIAL TRUST,
as Borrower
By:
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Name:
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Title:
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MIDFIRST BANK,
as a Lender
By:
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Xxxxx xx Xxxxxxxxx, Xx., Vice President
TEXAS CAPITAL BANK, N.A.,
as a Lender
By:
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Xxxxx Xxxxxx, Assistant Vice President
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Annex A
to
First Amendment to Credit Agreement
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(PMC Commercial Trust)
TABLE 1
COVENANT AT END OF SUBJECT PERIOD
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SECTION 9.9 DISTRIBUTIONS
(a) Funds from Operations during the fiscal year which $
includes the Subject Period
(b) Distributions during that period permitted by $
Section 9.9(b)(i)(B)
(c) Distributions during that period permitted by $
Section 9(b)(iii), and not already made in prior periods
(d) Sum of lines (a)-(c) $
(e) Distributions (other than treasury stock $
repurchases) actually made during the fiscal year which
includes the Subject Period - May not exceed Line (d)
(f) Treasury stock repurchases made during the term of $
the Credit Agreement - may not exceed $5,000,000
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