exv10w1



 





Exhibit 10.1




AMENDMENT NO. 3




TO




CREDIT AND SECURITY AGREEMENT




          THIS AMENDMENT NO. 3 TO CREDIT AND SECURITY AGREEMENT (this “Amendment”) dated as of
January 28, 2008, is entered into among PMC CONDUIT, L.P. as borrower (the “Borrower”), PMC
CONDUIT, LLC, PMC COMMERCIAL TRUST, as the servicer (the “Servicer”), JS SILOED TRUST, as
the “Conduit Lender” and JPMORGAN CHASE BANK, N.A., as an “Alternate Lender” and as agent (in such
capacity, the “Agent”). Capitalized terms used herein without definition shall have the
meanings ascribed thereto in Exhibit I to the “Credit Agreement” referred to below.




PRELIMINARY STATEMENTS




          A. Reference is made to that certain Credit and Security Agreement dated as of February 7,
2005 among the Borrower, PMC Conduit, LLC, the Servicer, the Lenders from time to time party
thereto and the Agent (as heretofore amended, the “Credit Agreement”).




          B. The parties hereto have agreed to amend certain provisions of the Credit Agreement upon the
terms and conditions set forth herein.




     SECTION 1. Amendments. Subject to the satisfaction of the conditions precedent set
forth in Section 3 hereof, the Credit Agreements is hereby amended as follows:



          (a) Section 9.1(s) of the Credit Agreement is hereby amended and restated in its entirety as
follows:





     “(s) The Borrower shall fail to consummate at least one Term Securitization on or prior
to May 2, 2008 or shall fail to consummate at least one Term Securitization during each
subsequent eighteen (18) month period following the most recent Term Securitization;”



          (b) The definition of “Amortization Date” set forth on Exhibit I to the Credit Agreement is
hereby amended and restated in its entirety as follows:





     “Amortization Date” means the earliest to occur of (i) the Scheduled
Termination Date, (ii) the date the Aggregate Principal is repaid in whole pursuant to
Section 1.4, (iii) the Business Day immediately prior to the occurrence of an Event of
Bankruptcy with respect to any Transaction Party, (iv) the date on which the Agent declares
the Amortization Date to have occurred pursuant to Section 9.2, and (v) the date
which is three (3) Business Days after the Agent’s receipt of written notice from Borrower
that it wishes to terminate the facility evidenced by this Agreement.”



          (c) Clause (c) of the definition of “Borrowing Base” set forth on Exhibit I to the Credit
Agreement is hereby amended and restated in its entirety as follows:





     “(c) the greater of (i) the product of (A) 10% and (B) the amount described in clause
(a) and (ii) the lesser of (A) the product of (x) 4 and (y) the largest Principal Balance of
any Pool Loan on such date and (B) the sum of the Principal Balances of the Pool Loans with
the five largest Principal Balances on such date; minus”













 





          (d) The definition of “Change of Control” set on Exhibit I to the Credit Agreement is hereby
amended and restated in its entirety as follows:




          “Change of Control” means (i) the acquisition by any Person, or two or more Persons
acting in concert, of beneficial ownership (within the meaning of Rule 13d-3 of the Securities and
Exchange Commission under the Securities Exchange Act of 1934) of 20% or more of the outstanding
shares of voting stock of PMC, (ii) PMC’s failure to own, directly or indirectly, 100% of the
issued and outstanding membership interests of the General Partner, (iii) the General Partner’s
failure to own, directly or indirectly, 100% of the issued and outstanding general partnership
interests of the Borrower or (iv) any material change in the management of PMC or PMC and the
Borrower taken as a whole, including, without limitation, any two of the following Persons shall
cease for any reason to be employed by PMC in the same or a substantially similar position as such
Person holds on the date hereof: Lance Rosemore, Andrew Rosemore, Jan Salit or Barry Berlin.”




          (e) The definition of “Scheduled Termination Date” set forth on Exhibit I to the Credit
Agreement is hereby amended by replacing “February 4, 2008” with “May 2, 2008”.




     SECTION 2. Representations and Warranties. The Borrower hereby represents and
warrants to each of the other parties hereto, that:



          (a) this Amendment and the Credit Agreement amended hereby each constitutes its legal, valid
and binding obligation, enforceable against it in accordance with its terms; and




          (b) on the date hereof, before and after giving effect to this Amendment, no Unmatured
Amortization Event or Amortization Event has occurred and is continuing.




     SECTION 3. Conditions Precedent. This Amendment shall become effective as of the date
hereof when, and only when:



          (a) the Agent or its counsel shall have received counterpart signature pages to this
Amendment, executed by the parties hereto;




          (b) each representation and warranty by the Borrower set forth in Section 2 above and
contained in the Credit Agreement (as amended hereby) and in each other Transaction Document shall
be true and correct as of the date hereof, except to the extent that such representation or
warranty expressly relates solely to an earlier date; and




          (c) no Unmatured Amortization Event or Amortization Event shall have occurred and be
continuing or would result after giving effect to any of the transactions contemplated on the date
hereof.




     SECTION 4. Reference to and Effect on the Transaction Documents.



          (a) Upon the effectiveness of this Amendment, (i) each reference in the Credit Agreement to
“this Credit Agreement”, “this Agreement”, “hereunder”, “hereof”, “herein” or words of like import
shall mean and be a reference to the Credit Agreement as amended or otherwise modified hereby, and
(ii) each reference to the Credit Agreement in any other Transaction Document or any other
document, instrument or agreement executed and/or delivered in connection therewith, shall mean and
be a reference to the Credit Agreement as amended or otherwise modified hereby.




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          (b) Except as specifically amended, terminated or otherwise modified above, the terms and
conditions of the Credit Agreement, of all other Transaction Documents and any other documents,
instruments and agreements executed and/or delivered in connection therewith, shall remain in full
force and effect and are hereby ratified and confirmed.




          (c) The execution, delivery and effectiveness of this Amendment shall not operate as a waiver
of any right, power or remedy of the Agent, PMC Conduit, LLC, the Servicer or any Lender under the
Credit Agreement or any other Transaction Document or any other document, instrument or agreement
executed in connection therewith, nor constitute a waiver of any provision contained therein, in
each case except as specifically set forth herein.




     SECTION 5. Execution in Counterparts. This Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed to be an original and all of which taken together shall
constitute but one and the same instrument. Delivery of an executed counterpart of a signature
page to this Amendment by telecopier shall be effective as delivery of a manually executed
counterpart of this Amendment.



     SECTION 6. Governing Law. This Amendment shall be governed by and construed in
accordance with the laws of the State of New York.



     SECTION 7. Headings. Section headings in this Amendment are included herein for
convenience of reference only and shall not constitute a part of this Amendment for any other
purpose.



     SECTION 8. Fees and Expenses. The Borrower hereby confirms its agreement to pay on
demand all reasonable costs and expenses of the Agent in connection with the preparation, execution
and delivery of this Amendment and any of the other instruments, documents and agreements to be
executed and/or delivered in connection herewith, including, without limitation, the reasonable
fees and out-of-pocket expenses of counsel to the Agent with respect thereto.



     SECTION 9. Entire Agreement. This Amendment, taken together with the Credit Agreement
and all of the other Transaction Documents, embodies the entire agreement and understanding of the
parties hereto and supersedes all prior agreements and understandings, written and oral, relating
to the subject matter hereof.



     SECTION 10. No Course of Dealing. The Agent and the Lenders have entered into this
Amendment on the express understanding with the Borrower, PMC Conduit, LLC and the Servicer that in
entering into this Amendment, none of them are establishing any course of dealing with the
Borrower, PMC Conduit, LLC or the Servicer. The rights of the Agent and each Lender to require
strict performance with all the terms and conditions of the Credit Agreement as amended by this
Amendment and the other Transaction Documents shall not in any way be impaired by the execution of
this Amendment. Neither the Agent nor any Lender shall be obligated in any manner to execute any
further amendments or waivers, and if such waivers or amendments are requested in the future,
assuming the terms and conditions thereof are acceptable to them, the Agent and the Lenders may
require the payment of fees in connection therewith.



Remainder of Page Deliberately Left Blank




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          IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their
respective officers as of the date first above written.




	 	 	 	 	 	 	 
	 	 	PMC CONDUIT, L.P., as the Borrower	 	 
	 
	 	 	 	 	 	 
	 	 	By: PMC CONDUIT, LLC, its General Partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Jan F. Salit	 	 
	 

	 	Name:
	 	 

Jan F. Salit
	 	 
	 

	 	Title:
	 	Executive Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	PMC CONDUIT, LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Jan F. Salit	 	 
	 

	 	Name:
	 	 

Jan F. Salit
	 	 
	 

	 	Title:
	 	Executive Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	PMC COMMERCIAL TRUST, as Servicer	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Jan F. Salit	 	 
	 

	 	Name:
	 	 

Jan F. Salit
	 	 
	 

	 	Title:
	 	Executive Vice President	 	 





Signature Page to Amendment No. 3 to Credit and Security Agreement





 









 






	 	 	 	 	 	 	 
	 	 	JS SILOED TRUST, as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	JPMorgan Chase Bank, National Association,

as administrative trustee	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Maureen E. Marcon	 	 
	 

	 	Name:
	 	 

Maureen E. Marcon
	 	 
	 

	 	Title:
	 	Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	JPMORGAN CHASE BANK, N.A.,

as an Alternate Lender and as Agent	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Maureen E. Marcon	 	 
	 

	 	Name:
	 	 

Maureen E. Marcon
	 	 
	 

	 	Title:
	 	Vice President	 	 






Signature Page to Amendment No. 3 to Credit and Security Agreement