exv10w40



 





EXHIBIT 10.40




FIRST AMENDMENT TO CREDIT AGREEMENT




         THIS FIRST AMENDMENT TO CREDIT AGREEMENT (this “Amendment”) is entered
into as of March 15, 2004, among PMC COMMERCIAL TRUST, a real estate investment
trust organized under the laws of the State of Texas (“Borrower”), certain
Lenders, and BANK ONE, NA, a national banking association with its main office
in Chicago, Illinois (“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 defined term “Stated Termination Date” in
Section 1.1 of the Credit Agreement is amended in its entirety
as follows:
	 
	 	 	 	“Stated Termination Date” means December 31, 2004.
	 
	 	(b)	 	Section 4.5 of the Credit Agreement is amended in
its entirety as follows:
	 
	 	 	 	Facility Fee. On May 31, 2004, Borrower shall pay to
Administrative Agent a facility fee equal to the lesser of
(a) 0.125% multiplied by the Commitment in effect on such
date, or (b) $50,000; provided, however, that if the product
of 0.125% multiplied by the Commitment in effect on such date
is less than $20,000, then Borrower shall instead pay to
Administrative Agent a facility fee of $20,000.




         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.



         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. 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.



	 	 	 	 	 
	 	 	BANK ONE, NA,
	 	 	as Administrative Agent, Bank One and a

Lender
	 
	 	 	 	 
	

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

	 	 	 	
 
	

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

	 	By:
	 	/s/ Barry N. Berlin
	

	 	 	 	
 
	

	 	Name:
	 	Barry N. Berlin
	

	 	 	 	
 
	

	 	Title:
	 	CFO
	

	 	 	 	
 








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