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FIFTH AMENDMENT TO REVOLVING CREDIT AGREEMENT AND AMENDMENT
TO LOAN DOCUMENTS
THIS FIFTH 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 November, 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, and that certain
Fourth Amendment to Revolving Credit Agreement and Amendment to Loan Documents
(the "FOURTH AMENDMENT") dated as of June 30, 1998 (the "LOAN AGREEMENT"),
pursuant to which the Lender has made and may hereafter make loans to the
Borrower. 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.
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 10.9
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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 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 March 15, 1999, 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."
1.2 EXTENSION OF TEMPORARY AMENDMENT TO THE LOAN AGREEMENT. Lender
and Borrower have agreed that the Interim Period, as defined in SECTION 1.7 of
the Fourth Amendment shall be extended through March 15, 1999. During such
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 the Purchased Properties 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 Properties as listed on EXHIBIT "K" to the
Loan Agreement, or (ii) the aggregate Appraised Value of such Purchased
Properties. 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 the end
of the Interim Period, the definition of COMBINED BORROWING BASE AVAILABILITY
shall revert back to the previous definition set out in the Loan Agreement. On
or before March 15, 1999, 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 March 15, 1999, Borrower shall, by May 1, 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 May 1, 1999, shall constitute an Event of
Default under the Loan Agreement.
EXHIBIT 10.9
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SECTION II
Guidance Line Note
2.1 GUIDANCE LINE NOTE. Contemporaneously with the execution hereof,
Borrower shall execute and deliver to Bank a Guidance Line Note (herein so
called) dated as of November 30, 1998, in the maximum principal amount of
$5,000,000.00 which shall, from and after November 30, 1998, constitute the
"GUIDANCE LINE NOTE NO. 1" 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 and the
Guidance Line Note No. 1 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 10.9
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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, 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 10.9
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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:
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Printed Name:
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Title:
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LENDER:
BANK ONE TEXAS, N.A.
By:
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Xxxx Xxxxxx, Vice President
EXHIBIT 10.9
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