exv10w45



 






Exhibit 10.45




THIRD AMENDMENT TO CREDIT AGREEMENT




     THIS THIRD AMENDMENT TO CREDIT AGREEMENT (this “Amendment”) is entered into as of
February 7, 2005, among PMC COMMERCIAL TRUST, a real estate investment trust organized under the
laws of the State of Texas (“Borrower”), certain Lenders, and JPMORGAN CHASE BANK, N.A.
(successor by merger to Bank One, N.A. (Main Office Chicago)) (“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 February 29,
2004, pursuant to which the Lenders have made and may hereafter make loans to Borrower. The
parties hereto have agreed to amend the Credit Agreement as described herein.



     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) The following new defined terms are added to Section 1.1 of the Credit Agreement as
follows (to be inserted in alphabetical order):




     “CDO Subsidiary” means a Subsidiary (i) of which all of the issued and
outstanding common equity interests are held by Borrower or one or more of its
wholly-owned Subsidiaries, (ii) which is formed for the sole purpose of issuing
preferred securities to an unrelated third party, and (iii) which has no assets
other than its rights as payee in respect of Qualified Intercompany Debt.




     “Qualified Intercompany Debt” means any unsecured indebtedness, in a
principal amount not to exceed $100,000,000, owing by the Borrower to a CDO
Subsidiary from time to time and evidenced by one or more promissory notes or other
evidences of indebtedness, which indicate that such indebtedness is subordinated to
the Obligation (such subordination to be on terms reasonably acceptable to the
Administrative Agent). In any case, the Borrower shall deliver the promissory notes
or other documents evidencing the terms of such indebtedness, containing all the
materially final or substantially final terms, to the Administrative Agent at least
5 Business Days in advance of the incurrence of any Qualified Intercompany Debt.




     (b) Clause (ii) of the definition of “Asset Coverage Ratio” in Section 1.1 of the
Credit Agreement is amended in its entirety as follows:



 









 






     (ii) the outstanding principal amount of all Funded Debt for which either
Borrower or First Western is obligated (other than any Qualified Intercompany Debt,
any Mortgages related to the Amerihost Properties and any preferred stock of PMC
Investment Corporation).




     (c) The defined term “Total Liabilities” in Section 1.1 of the Credit Agreement is
amended in its entirety as follows:




     “Total Liabilities” means, at any time and for the Consolidated
Companies, all liabilities properly reflected on the Consolidated Companies’
consolidated balance sheet in accordance with GAAP (other than any Qualified
Intercompany Debt).




     (d) Section 7.1(f) of the Credit Agreement is amended in its entirety as follows:




     (f) [Intentionally Deleted]




     (e) Section 7.1(c) of the Credit Agreement is amended in its entirety as follows:




     (c) SEC Filings. Promptly after preparation, but in any event (i)
within 60 days after the end of each of the first three fiscal quarters of Borrower,
an accurate and complete copy of Borrower’s Form 10-Q as filed with the Securities
and Exchange Commission, (ii) within 90 days after the end of each fiscal year of
Borrower, an accurate and complete copy of Borrower’s Form 10-K as filed with the
Securities and Exchange Commission, and (iii) promptly upon their becoming
available, accurate and complete copies of all registration statements, other
reports (including those on Form 8-K) and statements and schedules filed by Borrower
with any securities exchange, the Securities and Exchange Commission or any other
similar Governmental Authority.




     (f) Section 8.2(a)(iii) of the Credit Agreement is amended in its entirety as follows:




     (iii) either (A) any Debt arising under or in connection with any Structured
Financing that is entered into as a result of an Asset Securitization or (B) any
Qualified Intercompany Debt;




     (g) Section 8.2(b) of the Credit Agreement is amended in its entirety as follows:




     (b) Prepay, purchase, repurchase, defease or redeem, or cause to be prepaid,
purchased, repurchased, defeased or redeemed, any principal of, or any premium (if
any) or interest on, any of its Debt (including, without limitation, any Qualified
Intercompany Debt), or fund or cause to be funded any sinking or similar fund for
any such Debt (including, without limitation, any Qualified Intercompany Debt),
except for:



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     (i) the Obligation;




     (ii) any Debt (other than any Qualified Intercompany Debt) permitted
under Section 8.2(a)(iv) above in connection with the sale of the underlying
real property to a third party in an arm’s-length transaction, so long as
all prepayments required by Section 3.2(c) are made simultaneously
therewith;




     (iii) any Debt owed by a Special Purpose Entity (other than any CDO
Subsidiary) incurred in connection with an Asset Securitization, so long as
(A) such Debt has been reduced to 15% or less of its original principal
amount, (B) such prepayment fully extinguishes such Debt, (C) no Default or
Event of Default then exists or would be created by such prepayment, and (D)
all remaining Mortgage Loans and related assets of such Special Purpose
Entity are immediately transferred to Borrower; or




     (iv) in the case of Qualified Intercompany Debt, any payments expressly
permitted by Section 8.2(c) below.




     (h) Section 8.2 of the Credit Agreement is amended by adding the following as a new
Section 8.2(c):




     (c) Prepay, purchase, repurchase, defease or redeem, or cause to be prepaid,
purchased, repurchased, defeased or redeemed, any principal of, or any premium (if
any) or interest on, any of its Qualified Intercompany Debt, or fund or cause to be
funded any sinking or similar fund for any Qualified Intercompany Debt.
Notwithstanding the foregoing, (i) the Borrower may make regularly scheduled
interest payments on its Qualified Intercompany Debt and payments of principal on
its Qualified Intercompany Debt upon its stated maturity unless (A) an Event of
Default has occurred and is continuing under Section 10.1 as a result of a failure
to make a payment of principal or interest under any Note or under Section 10.11 as
a result of any nonpayment of any Rate Management Obligation when due, or (B) the
maturity of the Obligation has been accelerated pursuant to either Section 11.1(a)
or 11.1(b) hereof, and (ii) the Borrower may make other principal payments or
prepayments of Qualified Intercompany Debt (and payment of accrued interest
thereon), at its option, at any time prior to the stated maturity thereof, unless an
Event of Default has occurred and is then continuing.




     (i) Section 8.5 of the Credit Agreement is amended in its entirety as follows:




     8.5 Transactions with Affiliates. No Company may enter into any
transaction with any of its Affiliates except (a) Asset Securitizations, but only
so long as (i) no Event of Default or Potential Default has occurred and is
continuing at the time of such Asset Securitization, and (ii) all mandatory
prepayments on the Obligation required by Section 3.2(c) are made in
connection therewith, (b) the issuance of Qualified Intercompany Debt, and (c) other
transactions (other than



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Investments) in the ordinary course of business and upon fair and reasonable
terms not materially less favorable than it could obtain or could become entitled to
in an arm’s-length transaction with a Person that was not its Affiliate.




     (j) Section 8.9(a) of the Credit Agreement is amended in its entirety as follows:




     (a) Distributions to Borrower from any other Company and Distributions by any
CDO Subsidiary to any of its owners; and




     (k) Section 8 of the Credit Agreement is amended by adding the following as a new
Section 8.18:




     8.18 Amendments to Qualified Intercompany Debt. Without the prior
written consent of the Administrative Agent, no Company may amend, restate or
otherwise modify any of the terms of any Qualified Intercompany Debt which relate to
the subordination of such Qualified Intercompany Debt to the Obligations.




     (l) Section 9.2 of the Credit Agreement is amended in its entirety as follows:




     9.2 Maximum Leverage Ratio. The ratio of the Consolidated Companies’
consolidated Total Liabilities to the Consolidated Companies’ consolidated Net Worth
shall not at any time exceed 2.00 to 1.00.




     (m) Section 9.5 of the Credit Agreement is amended in its entirety as follows:




     9.5 [Intentionally Deleted]




     (n) Section 10.7 of the Credit Agreement is amended in its entirety as follows:




     10.7 Ownership of Other Companies. Except as a result of transactions
permitted by this agreement, any Company (other than Borrower or any CDO Subsidiary)
fails to constitute the direct or indirect wholly owned Subsidiary of Borrower.



     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) Administrative Agent 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.



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     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 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. Special Provision Regarding Indemnities. Notwithstanding anything in the Credit
Agreement to the contrary, no CDO Subsidiary (as defined herein) will be an “Indemnitor” for
purposes of Section 7.11 of the Credit Agreement.



     10. 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
AGREEMENTS BETWEEN THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.



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     EXECUTED as of the date first stated above.



	 	 	 	 	 
	 
	 	JPMORGAN CHASE BANK, NA,
	 
	 	as Administrative Agent, Bank One and a Lender
	 
	 	 	 	 
	

	 	By:
	 	/s/ Bradley C. Peters, Senior Vice President
	

	 	 	 	 
	

	 	 	 	Bradley C. Peters, Senior Vice President
	 
	 	 	 	 
	 
	 	PMC COMMERCIAL TRUST,
	 
	 	as Borrower
	 
	 	 	 	 
	

	 	By:
	 	/s/ Jan F. Salit
	

	 	 	 	 
	

	 	Name:
	 	Jan F. Salit
	

	 	 	 	 
	

	 	Title:
	 	Executive Vice President
	

	 	 	 	 







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