Exhibit 10.1
Exhibit 10.1
FIRST AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this Amendment) is
entered into as of June 8, 2011 by and among PMC COMMERCIAL TRUST, a real estate investment trust
organized under the laws of the State of Texas (PMC), FIRST WESTERN SBLC, INC., a Florida
corporation (First Western) (PMC and First Western individually each referred to as a
Borrower and collectively as Borrowers), EACH OF THE FINANCIAL INSTITUTIONS
WHICH IS A SIGNATORY HERETO OR WHICH MAY FROM TIME TO TIME BECOME A PARTY HERETO (individually, a
Lender and collectively, the Lenders) and JPMORGAN CHASE BANK, National
Association (JPMorgan), a national banking association, as agent for the Lenders (in such
capacity, together with its successors and assigns in such capacity, the Administrative
Agent).
RECITALS:
WHEREAS, Borrowers, Lenders and Administrative Agent are party to that Amended and Restated
Credit Agreement, dated as of December 10, 2010 (as the same has been or may be renewed, extended,
amended and restated from time to time, the Credit Agreement); and
WHEREAS, Borrowers have requested that Administrative Agent and Lenders agree to an amendment
extending the maturity date and making other changes. Subject to the conditions set forth in this
Amendment, Administrative Agent and Lenders have agreed to amend the Credit Agreement as set forth
herein.
NOW, THEREFORE, the parties to this Amendment, for good, fair and valuable consideration, the
receipt and reasonable equivalency of which are hereby acknowledged, do hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 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.
ARTICLE II
AMENDMENTS
Section 2.1 Amendments to Credit Agreement. The Credit Agreement is hereby amended to
read in its entirety as set forth in Annex 1 hereto.
First Amendment To Amended and Restated Credit Agreement
Section 2.2 Amendments to Schedule 2. Schedule 2 to the Credit Agreement is
hereby deleted and the attached Schedule 2 is hereby substituted in its stead.
Section 2.3 Amendments to Schedule 6.3. Schedule 6.3 to the Credit Agreement
is hereby deleted and the attached Schedule 6.3 is hereby substituted in its stead.
Section 2.4 Amendments to Exhibit A. Exhibit A to the Credit Agreement is
hereby deleted and the attached Exhibit A is hereby substituted in its stead.
Section 2.5 Amendments to Exhibit D. Exhibit D to the Credit Agreement is
hereby deleted and the attached Exhibit D is hereby substituted in its stead.
ARTICLE III
CONDITIONS PRECEDENT
Section 3.1 Conditions Precedent. Notwithstanding any contrary provisions herein,
this Amendment is not effective unless and until:
(a) the representations and warranties in this Amendment and in the Credit Agreement
are true and correct;
(b) the Administrative Agent shall have received counterparts of this Amendment
executed by each party named below;
(c) the Administrative Agent shall have received (i) resolutions of the Board of Trust
Managers of PMC and resolutions of the Board of Directors of First Western certified, in
each case, by their respective Secretary or Assistant Secretary which authorize the
execution, performance and delivery of the Credit Documents to which it is or is to be a
party; (ii) a certificate of incumbency certified by the Secretary or Assistant Secretary of
both Borrowers certifying the names of each of its officers authorized to sign the Credit
Documents to which it is or is to be a party (including the certificates contemplated
herein) together with specimen signatures; and (iii) certificates of the appropriate
government officials of the State of Organization of PMC and First Western as to their
respective existence and good standing;
(d) the Administrative Agent shall have received a new Revolving Note executed by PMC
in the form of Exhibit A attached hereto, duly completed in an amount of $40,000,000;
(e) the Administrative Agent shall have received a new Revolving Note executed by First
Western in the form of Exhibit A attached hereto, duly completed in an amount of
$10,000,000;
First Amendment to Amended and Restated Credit Agreement Page 2
(f) the Administrative Agent shall have received a favorable opinion of counsel to the
Borrowers in form and substance acceptable to the Administrative Agent and its counsel;
(g) the Administrative Agent shall have received bring down certificate of the
Secretary or Assistant Secretary of each Borrower certifying that the declaration of trust,
articles of incorporation, and bylaws, as applicable of such Borrower have not been modified
in any respect from the copies previously provided to the Administrative Agent and the
Lenders in connection with the Credit Agreement;
(h) the Administrative Agent shall have received current UCC searches for each of the
Borrowers and their respective subsidiaries showing no Liens except Liens permitted by the
Credit Agreement;
(i) the Administrative Agent shall have received reimbursement for all costs and
expenses incurred by it in connection with this Amendment and the other transactions to the
extent invoiced; and
(j) the Administrative Agent shall have received such other documents, instruments and
certificates as reasonably requested by it in connection with this Amendment.
ARTICLE IV
NO WAIVER
Section 4.1 No Waiver. Nothing herein shall be construed as a consent to or waiver of
any Potential Default or Event of Default which may now exist or hereafter occur or any violation
of any term, covenant or provision of the Credit Agreement or any other Credit Document. All
rights and remedies of the Administrative Agent and the Lenders are hereby expressly reserved with
respect to any such Potential Default or Event of Default. Nothing herein shall diminish the right
of the Administrative Agent or any Lender to require strict performance by Borrowers of each
provision of any Credit Document to which such Person is a party, except as expressly provided
herein. All terms and provisions and all rights and remedies of the Administrative Agent and the
Lenders under the Credit Documents shall continue in full force and effect and are hereby confirmed
and ratified in all respects.
ARTICLE V
MISCELLANEOUS
Section 5.1 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. Borrowers, 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.
First Amendment to Amended and Restated Credit Agreement Page 3
Section 5.2 Representations and Warranties. Each of the Borrowers hereby represents
and warrants to Administrative Agent and Lenders that (a) this Amendment and any Credit Documents
to be delivered under or in connection with this Amendment have been duly executed and delivered by
PMC and First Western, (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
PMC or First Western of this Amendment and any Credit Document to be delivered under or in
connection with this Amendment, (c) this Amendment and any Credit Documents to be delivered under
or in connection with this Amendment are valid and binding upon PMC and First Western and are
enforceable against PMC and First Western in accordance with their respective terms, (d) the
execution, delivery, and performance by PMC and First Western of this Amendment and any Credit
Documents to be delivered under or in connection with this Amendment do not require the consent of
any other Person and do not and will not constitute a violation of any applicable laws, agreements
or understandings to which such Person is a party or by which such Person 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 (except for any representations and warranties that speak to a specific date prior to the
date of this Amendment), (f) as of the date of this Amendment, no Potential Defaults or Events of
Default exist, and (g) that certain Guaranty executed by PMC, dated as of December 28, 2010 (i) is
hereby ratified and confirmed, (ii) continues in full force and effect, and (iii) continues to be
legal, valid, binding and enforceable in accordance with its terms.
Section 5.3 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 as referred to in the Credit Agreement and the provisions relating to Credit Documents in
the Credit Agreement are incorporated herein by reference, the same as if set forth verbatim in
this Amendment.
Section 5.4 Counterparts. This Amendment may be executed in any number of
counterparts with the same effect as if all signatories had signed the same document.
Section 5.5 Parties Bound. This Amendment binds and inures to the benefit of each
Borrower, Agent and each Lender and their respective successors and assigns.
Section 5.6 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 AGREEMENTS BETWEEN THE
PARTIES.
[Remainder of Page Intentionally Left Blank.]
First Amendment to Amended and Restated Credit Agreement Page 4
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date set forth
above.
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BORROWERS:
PMC COMMERCIAL TRUST
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By: |
/s/ Barry Berlin
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Barry N. Berlin |
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Executive Vice President and
Chief Financial Officer |
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FIRST WESTERN SBLC, INC.
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By: |
/s/ Barry Berlin
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Barry N. Berlin |
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Executive Vice President and
Chief Financial Officer |
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ADMINISTRATIVE AGENT AND LENDERS: |
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JPMORGAN CHASE BANK, N.A.,
individually, as a Lender and as Administrative Agent |
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By:
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/s/ Denise Parks |
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Denise Parks |
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Senior Vice President |
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First Amendment To Amended and Restated Credit Agreement Signature Page
Exhibit A
[SECOND] [FIRST] [AMENDED AND RESTATED] REVOLVING NOTE
FOR VALUE RECEIVED, the undersigned, , a
(Payor), irrevocably and unconditionally promises to pay to the order of
, a
(Lender, and together with each
subsequent holder hereof, Payee), at the principal banking office of Administrative Agent
(hereinafter referenced) at 2200 Ross Avenue, Dallas, Texas 75201, (i) the principal amount of
MILLION AND NO/100 DOLLARS ($ ) (or such lesser amount as shall equal the
aggregate unpaid principal amount of all Borrowings made by Lender to Payor pursuant to the Credit
Agreement hereinafter referenced), on the dates and in the principal amounts provided for in the
Credit Agreement, and (ii) interest on the unpaid principal amount of each such Borrowing from time
to time remaining outstanding and unpaid from the date of each such Borrowing until it shall be
paid in full, at the rates per annum and on the dates provided for in the Credit Agreement.
All capitalized terms used herein and not otherwise defined herein shall have the same meaning
and effect as used and defined in that certain Amended and Restated Credit Agreement dated as of
December 28, 2010 (as amended and otherwise modified, and in effect, the Credit
Agreement), by and among PMC, First Western, certain Lenders, and JPMorgan Chase Bank,
National Association, as Administrative Agent for those Lenders. Reference is hereby made to the
Credit Agreement for all intents and purposes.
This Note is a Revolving Note executed by Payor and is referred to in, governed by, and
subject to, and is entitled to the benefits of, the terms and provisions of the Credit Agreement as
therein stated and referenced. Reference is hereby made to the Credit Agreement for a statement of
the agreements, rights, remedies, benefits and obligations of Payee and the covenants, agreements,
rights, duties and obligations of Payor in relation hereto, including provisions for acceleration
of the maturity hereof, interest rate and amount limitations and voluntary and mandatory
prepayments hereon; but this reference to the Credit Agreement, or any provision thereof, shall not
affect or impair the irrevocable, absolute and unconditional obligation of Payor to pay principal
of, and interest on, this Note when due. Unless the maturity of this Note shall have sooner
occurred, the outstanding principal balance of this Note and all accrued and unpaid interest
thereon shall be finally and fully payable on the Termination Date.
The date, amount, Type, and interest rate of each Borrowing made by Lender to Payor, and each
payment made on account of the principal thereof, and accrued interest thereon, shall be recorded
by Payee on its books and records, and prior to any transfer of this Note, endorsed by Payee on a
schedule attached hereto or any continuation thereof; and all recordations and endorsements made by
Payee shall, absent manifest error, be conclusive of all such matters and binding on all Persons.
Payees failure to make or error in making any such recordations or endorsements shall not
diminish, reduce or relieve Payors obligation to pay (i) all Borrowings
made by Lender and then outstanding and (ii) all accrued and earned interest on the amounts
thereof from time to time outstanding and unpaid, pursuant to this Note.
First Amendment To Amended and Restated Credit Agreement Exhibit A
Upon the occurrence of an Event of Default, this Note may be declared to be, or shall become,
forthwith due, and immediately payable in the manner, upon the conditions (if any) and with the
effect, provided for and referred to in the Credit Agreement.
If this Note is placed in the hands of an attorney for collection (whether or not any
proceeding is filed in connection therewith), or collected through suit, the Bankruptcy Court or
any other judicial proceeding, Payor irrevocably and unconditionally agrees to pay all costs,
expenses and fees incurred by Payee, including reasonable attorneys fees and expenses, and any
assessed court and related costs, in addition to all other amounts owing hereunder.
Payor and all sureties, endorsers, guarantors and other Persons ever liable for the payment of
any sums payable on this Note, jointly and severally, waive notice, demand, notice of presentment,
presentment, presentment for payment, demand for payment, non-payment, notice of dishonor,
dishonor, notice of intent to accelerate maturity, notice of acceleration of maturity, notice of
intent to demand, protest, notice of protest, grace and all formalities and other notices of any
and every kind, and filing of suit or diligence in collecting this Note or enforcing (in whole or
part) any security or guaranty now or hereafter for the payment of this Note, and consent and agree
to any partial or full substitution, exchange or release of any such security or guaranty or the
partial or full release of any Person primarily or secondarily liable hereon, and consent and agree
that it will not be necessary for any holder hereof, in order to enforce payment by it of this Note
to first institute suit or exhaust its remedies against Payor or any other Persons liable herefor,
or to enforce it rights against any such security herefor or guarantor or any other Person with
respect hereto, and consent to any or all extensions, increases or renewals or postponements,
modifications or rearrangements of time or payment of this Note or any other indulgence with
respect hereto, without notice thereof to, or consent thereto from, any of them.
Each of Payor and Payee hereby agrees that Chapter 346 of the Texas Finance Code, as amended,
shall not apply to this Note or the loan transaction evidenced by, and referred to in, the Credit
Agreement in any manner, including without limitation, to any account or arrangement evidenced or
created by, or provided for in, this Note or the Credit Agreement.
This Note (including its validity, enforceability and interpretation) shall be governed by,
and construed in accordance with, the laws of the State of Texas (without regard to conflict of law
principles) and, to the extent controlling, federal laws of the United States of America. This
Note has been executed, delivered and accepted and is payable at, Dallas, Dallas County, Texas.
THIS NOTE AND THE OTHER CREDIT DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AS
TO THE SUBJECT MATTER HEREOF AND THEREOF AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN THE PARTIES.
[The indebtedness evidenced by this Note is given in amendment, restatement, extension and
modification (but not in extinguishment or novation) of the indebtedness evidenced by that
certain [Revolving Note dated February 29, 2004 in the original principal amount of
$40,000,000 executed by PMC and payable to the order of Payee, and that certain] [Amended and
Restated] Revolving Note dated December 18, 2010 in the original principal amount of $[_____]
executed by [PMC] [First Western] and payable to the order of Payee.]
[Remainder of Page Intentionally Left Blank]
First Amendment To Amended and Restated Credit Agreement Exhibit A
First Amendment To Amended and Restated Credit Agreement Exhibit A
EXHIBIT D
COMPLIANCE CERTIFICATE
Administrative Agent: JPMorgan Chase Bank National Association Date: _________, 20___
Borrowers: PMC Commercial Trust and First Western SBLC, Inc.
Subject Period: ended , 20
This certificate is delivered under the Amended and Restated Credit Agreement (as renewed,
extended, and amended, the Credit Agreement) dated as of December 28, 2010, among
Borrowers, certain Lenders, certain other parties, and Administrative Agent. Terms defined in the
Credit Agreement have the same meanings when used unless otherwise defined in this
certificate.
Each of the undersigned officers certifies to Administrative Agent and Lenders that on the
date of this certificate:
1. Such undersigned officer is the officer of a Borrower designated below.
2. Each Borrowers financial statements that are attached to this certificate were prepared in
accordance with GAAP and present fairly such Borrowers consolidated (if applicable) financial
condition and results of operations as of and for the fiscal year or portion of the fiscal year
ending on the last day of the Subject Period set forth above.
3. Such undersigned officer supervised a review of the Companies activities during the
Subject Period in respect of the following matters and has determined the following: (a) the
representations and warranties in the Credit Agreement are true and correct in all material
respects, except (i) to the extent that a representation or warranty speaks to a specific date or
the facts on which it is based have changed by transactions or conditions contemplated or permitted
by the Credit Documents and (ii) for the changes, if any, described on the attached Schedule; (b)
each Company has complied with all of its obligations under the Credit Documents, other than for
the deviations, if any, described on the attached Schedule; (c) no Event of Default or Potential
Default exists or is imminent, other than those, if any, described on the attached Schedule; and
(d) the Companies compliance with the financial covenants in Section 9 of the Credit
Agreement [and the Non-Performing Loan Ratio] is accurately calculated on the attached Schedule.
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1 |
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Must be a Responsible Officer of a Borrower. |
First Amendment To Amended and Restated Credit Agreement Exhibit D
First Amendment To Amended and Restated Credit Agreement Exhibit D
SCHEDULE TO COMPLIANCE CERTIFICATE
(for the period ending )
A. Describe deviations from performance or compliance with covenants, if any, pursuant
to clause (3)(a) or (3)(b) of the attached certificate. If none, so state.
B. Describe Material Adverse Events, Events of Default or Potential Defaults, if any,
pursuant to clause (3)(c) of the attached certificate. If none, so state.
C. Reflect compliance with Section 9 of the Credit Agreement [and, with
respect to the annually delivered Compliance Certificate, the Non-Performing Loan Ratio] at
the end of the Subject Period pursuant to clause (3)(d) of the attached
certificate.
Table 1
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Covenant |
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At End of Subject Period |
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Section 9.1 Minimum Net Worth |
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(a) Base amount |
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$ |
142,000,000 |
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(b) 100% of the Net Proceeds
from any Equity Issuances
by PMC after the First
Amendment Effective Date |
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$ |
[ ] |
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(c) Sum of Lines (a) and (b) |
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$ |
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(d) Current Net Worth Must
be greater than Line (c) |
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$ |
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First Amendment To Amended and Restated Credit Agreement Exhibit D
Table 2
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Covenant |
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At End of Subject Period |
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Section 9.2 Non-Hotel/Motel Loans |
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(a) The aggregate principal balance of all Mortgage Loans |
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$ |
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(b) 15% of Line (a) |
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$ |
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(c) The aggregate loan loss reserve established by Companies
with respect to Mortgage Loans |
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$ |
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(d) Line (b) minus Line (c) |
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$ |
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(e) The aggregate principal balance of Mortgage Loans secured
by Projects which are not hotels or motels (must not exceed
Line (d)) |
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$ |
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Table 3
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Covenant |
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At End of Subject Period |
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Section 9.3 Debt of First Western |
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(a) Debt under the First Western Revolving Facility |
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$ |
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(b) all advances, borrowings and other Debt owed
by First Western to PMC or other Company |
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$ |
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(c) All other Debt of First Western |
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$ |
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(d) Total Debt of First Western (sum of lines
(a), (b) and (c)) |
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$ |
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(e) Maximum amount of permitted First Western
Debt (Line (d) must be less than this Line (e)) |
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$ |
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Table 4
[For Compliance Certificates delivered Annually Only]
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Covenant |
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At End of Subject Period |
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Section 9.3 Maximum Non-Performing Loan Ratio |
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(a) The outstanding principal balance of the
Companies consolidated Non-Performing Loans |
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$ |
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(b) The Companies consolidated Net Worth |
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$ |
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(c) Non-Performing Loan Ratio (Line (a) to Line
(b)) |
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to 1.00 |
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First Amendment To Amended and Restated Credit Agreement Exhibit D
Schedule 2
LENDERS AND COMMITMENTS
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Commitment |
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Name and Address of Lender |
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Revolving Facility |
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Percentage |
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JPMorgan Chase Bank, N.A.
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$ |
30,000,000 |
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100.000 |
% |
2200 Ross Avenue
8th Floor
Dallas, TX 75201
Attention: Denise Parks
Senior Vice President
Telephone: (214) 965- 3881
Facsimile: (214) 965-3990
denise.parks@chase.com |
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Total |
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$ |
30,000,000 |
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100.000 |
% |
First Amendment To Amended and Restated Credit Agreement Schedule 2
Schedule 6.3
INFORMATION REGARDING COMPANIES
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TRADE |
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STATES |
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NAMES USED |
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STILL |
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STATE OF |
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QUALIFIED AS |
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IN LAST |
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USING |
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OTHER |
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INCORPORATION |
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FOREIGN CORP. |
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FOUR |
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NAME? |
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CHIEF EXECUTIVE |
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PRINCIPAL |
NAME2 |
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/ FORMATION |
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/ ENTITY |
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MONTHS |
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Y / N |
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OFFICE |
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OFFICES |
PMC Commercial Trust
* Public Company
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Texas
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Ohio registered
as a REIT
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None
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N/A
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17950 Preston Road
Suite 600
Dallas, TX 75252
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None |
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PMC Investment Corporation
* All outstanding common stock is
owned by PMC Commercial Trust
* 30,000 shares of preferred stock
are owned by the U.S. Small Business
Administration
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Florida
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Texas
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None
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N/A
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17950 Preston Road
Suite 600
Dallas, TX 75252
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None |
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Western Financial Capital Corporation
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Florida
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Texas
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None
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N/A
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17950 Preston Road
Suite 600
Dallas, TX 75252
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None |
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First Western SBLC, Inc.
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Florida
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Texas
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None
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N/A
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17950 Preston Road
Suite 600
Dallas, TX 75252
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None |
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PMC Funding Corp.
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Florida
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Texas
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None
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N/A
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17950 Preston Road
Suite 600
Dallas, TX 75252
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None |
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PMC Asset Holding, LLC
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Delaware
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Texas
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None
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N/A
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17950 Preston Road
Suite 600
Dallas, TX 75252
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None |
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2 |
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All Companies are direct wholly owned subsidiaries of
PMC Commercial Trust except as otherwise indicated. |
First Amendment To Amended and Restated Credit Agreement Schedule 6.3
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TRADE |
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STATES |
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NAMES USED |
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STILL |
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STATE OF |
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QUALIFIED AS |
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IN LAST |
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USING |
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OTHER |
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INCORPORATION |
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FOREIGN CORP. |
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FOUR |
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NAME? |
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CHIEF EXECUTIVE |
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PRINCIPAL |
NAME2 |
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/ FORMATION |
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/ ENTITY |
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MONTHS |
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Y / N |
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OFFICE |
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OFFICES |
PMCT Asset Holding, LLC
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Delaware
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Texas
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None
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N/A
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17950 Preston Road
Suite 600
Dallas, TX 75252
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None |
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PMC Preferred Capital Trust A
* 820 common securities are held by
PMC Commercial Trust
* 26,250 preferred securities are
held by Taberna Preferred Funding I,
Ltd. or its assigns
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Delaware
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None
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None
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N/A
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17950 Preston Road
Suite 600
Dallas, TX 75252
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None |
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PMC Properties, Inc.
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Delaware
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None
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None
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N/A
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17950 Preston Road
Suite 600
Dallas, TX 75252
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None |
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PMC Capital, L.P. 1998-1
* 0.1% general partnership interest
owned by PMC Capital Corp. 1998-1
* 99.9% limited partnership interest
owned by PMC Commercial Trust
|
|
Delaware
|
|
Texas
|
|
None
|
|
N/A
|
|
17950 Preston Road
Suite 600
Dallas, TX 75252
|
|
None |
|
PMC Capital Corp 1998-1
|
|
Delaware
|
|
Texas
|
|
None
|
|
N/A
|
|
17950 Preston Road
Suite 600
Dallas, TX 75252
|
|
None |
|
PMC Joint Venture, L.P. 2000
*0.1% general partnership interest
owned by PMC Joint Venture LLC 2000
* 99.9% limited partnership interest
owned by
PMC Commercial Trust
|
|
Delaware
|
|
Texas
|
|
None
|
|
N/A
|
|
17950 Preston Road
Suite 600
Dallas, TX 75252
|
|
None |
|
PMC Joint Venture LLC 2000
|
|
Delaware
|
|
Texas
|
|
None
|
|
N/A
|
|
17950 Preston Road
Suite 600
Dallas, TX 75252
|
|
None |
First Amendment To Amended and Restated Credit Agreement Schedule 6.3
|
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|
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|
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|
|
TRADE |
|
|
|
|
|
|
|
|
|
|
STATES |
|
NAMES USED |
|
STILL |
|
|
|
|
|
|
STATE OF |
|
QUALIFIED AS |
|
IN LAST |
|
USING |
|
|
|
OTHER |
|
|
INCORPORATION |
|
FOREIGN CORP. |
|
FOUR |
|
NAME? |
|
CHIEF EXECUTIVE |
|
PRINCIPAL |
NAME2 |
|
/ FORMATION |
|
/ ENTITY |
|
MONTHS |
|
Y / N |
|
OFFICE |
|
OFFICES |
PMC Joint Venture, L.P. 2003-1
* 0.1% general partnership interest
owned by PMC Joint Venture LLC
2003-1
* 99.9% limited partnership interest
owned by PMC Commercial Trust
|
|
Delaware
|
|
Texas
|
|
None
|
|
N/A
|
|
17950 Preston Road
Suite 600
Dallas, TX 75252
|
|
None |
|
PMC Joint Venture LLC 2003-1
|
|
Delaware
|
|
Texas
|
|
None
|
|
N/A
|
|
17950 Preston Road
Suite 600
Dallas, TX 75252
|
|
None |
|
PMCT AH, Inc.
|
|
Delaware
|
|
Ohio and Texas
|
|
None
|
|
N/A
|
|
17950 Preston Road
Suite 600
Dallas, TX 75252
|
|
None |
|
PMCT Plainfield, L.P.
* 0.01% general partnership interest
owned by PMCT AH, Inc.
* 99.9% limited partnership interest
owned by PMC Commercial Trust
|
|
Delaware
|
|
Indiana and Texas
|
|
None
|
|
N/A
|
|
17950 Preston Road
Suite 600
Dallas, TX 75252
|
|
None |
First Amendment To Amended and Restated Credit Agreement Schedule 6.3
Annex 1
to First Amendment
to Amended and Restated Credit Agreement
AMENDED AND RESTATED CREDIT AGREEMENT
among
PMC COMMERCIAL TRUST
and
FIRST WESTERN SBLC, INC.,
as Borrowers
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,
as Administrative Agent
And
THE LENDERS NAMED HEREIN,
as Lenders
DECEMBER 28, 2010
$30,000,000 SENIOR REVOLVING CREDIT FACILITIES
With Conditional Increases Up to $40,000,000
TABLE OF CONTENTS
|
|
|
|
|
|
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Page |
|
|
|
|
|
|
SECTION 1. DEFINITIONS AND TERMS |
|
|
1 |
|
1.1 Definitions |
|
|
1 |
|
1.2 Time References |
|
|
17 |
|
1.3 Other References |
|
|
17 |
|
1.4 Accounting Principles |
|
|
17 |
|
|
|
|
|
|
SECTION 2. COMMITMENTS |
|
|
17 |
|
2.1 PMC Revolving Facility |
|
|
17 |
|
2.2 PMC Borrowing Procedure |
|
|
18 |
|
2.3 PMC Borrowing Requests |
|
|
18 |
|
2.4 Reduction or Termination of PMC Commitment |
|
|
19 |
|
2.5 First Western Revolving Facility |
|
|
19 |
|
2.6 First Western Borrowing Procedure |
|
|
19 |
|
2.7 First Western Borrowing Requests |
|
|
20 |
|
2.8 Reduction or Termination of First Western Commitment |
|
|
20 |
|
|
|
|
|
|
SECTION 3. TERMS OF PAYMENT |
|
|
20 |
|
3.1 Notes and Payments |
|
|
20 |
|
3.2 Interest and Principal Payments |
|
|
21 |
|
3.3 Interest Options |
|
|
22 |
|
3.4 Quotation of Rates |
|
|
22 |
|
3.5 Default Rate |
|
|
22 |
|
3.6 Interest Recapture |
|
|
22 |
|
3.7 Interest Calculations |
|
|
23 |
|
3.8 Maximum Rate |
|
|
23 |
|
3.9 Interest Periods |
|
|
24 |
|
3.10 Conversions |
|
|
24 |
|
3.11 Order of Application |
|
|
24 |
|
3.12 Sharing of Payments, Etc |
|
|
25 |
|
3.13 Offset |
|
|
25 |
|
3.14 Booking Borrowings |
|
|
25 |
|
3.15 Basis Unavailable or Inadequate for LIBOR Rate |
|
|
26 |
|
3.16 Additional Costs |
|
|
26 |
|
3.17 Change in Governmental Requirements |
|
|
27 |
|
3.18 Consequential Loss |
|
|
28 |
|
3.19 Foreign Lenders, Participants, and Purchasers |
|
|
28 |
|
|
|
|
|
|
SECTION 4. FEES |
|
|
28 |
|
4.1 Treatment of Fees |
|
|
28 |
|
4.2 Fees of Administrative Agent |
|
|
28 |
|
4.3 Upfront Fees |
|
|
29 |
|
4.4 Commitment Fee |
|
|
29 |
|
Amended and Restated Credit Agreement Page i
TABLE OF CONTENTS
|
|
|
|
|
|
|
Page |
|
|
|
|
|
|
SECTION 5. CONDITIONS PRECEDENT |
|
|
29 |
|
5.1 Initial Advances |
|
|
29 |
|
5.2 All Borrowings |
|
|
31 |
|
|
|
|
|
|
SECTION 6. REPRESENTATIONS AND WARRANTIES |
|
|
31 |
|
6.1 Purpose and Regulation U |
|
|
31 |
|
6.2 Corporate Existence, Good Standing, Authority and Locations |
|
|
32 |
|
6.3 Subsidiaries and Names |
|
|
32 |
|
6.4 Authorization and Contravention |
|
|
32 |
|
6.5 Binding Effect |
|
|
33 |
|
6.6 Financials |
|
|
33 |
|
6.7 Solvency |
|
|
33 |
|
6.8 Litigation |
|
|
33 |
|
6.9 Taxes |
|
|
33 |
|
6.10 Environmental Matters |
|
|
34 |
|
6.11 Employee Plans |
|
|
34 |
|
6.12 Properties; Liens |
|
|
34 |
|
6.13 Government Regulations |
|
|
34 |
|
6.14 Transactions with Affiliates |
|
|
35 |
|
6.15 Debt |
|
|
35 |
|
6.16 Leases |
|
|
35 |
|
6.17 Labor Matters |
|
|
35 |
|
6.18 Intellectual Property |
|
|
35 |
|
6.19 Insurance |
|
|
35 |
|
6.20 Full Disclosure |
|
|
35 |
|
|
|
|
|
|
SECTION 7. AFFIRMATIVE COVENANTS |
|
|
36 |
|
7.1 Certain Items Furnished |
|
|
36 |
|
7.2 Use of Credit |
|
|
38 |
|
7.3 Books and Records |
|
|
38 |
|
7.4 Inspections |
|
|
38 |
|
7.5 Taxes |
|
|
38 |
|
7.6 Payment of Obligation |
|
|
39 |
|
7.7 Expenses |
|
|
39 |
|
7.8 Maintenance of Existence, Assets and Business |
|
|
39 |
|
7.9 Insurance |
|
|
39 |
|
7.10 Compliance with Governmental Requirements |
|
|
39 |
|
7.11 Indemnification |
|
|
40 |
|
7.12 Mortgage Loan Approval, Collection and Servicing Standards |
|
|
42 |
|
7.13 Negative Pledge |
|
|
42 |
|
Amended and Restated Credit Agreement Page ii
TABLE OF CONTENTS
|
|
|
|
|
|
|
Page |
|
|
|
|
|
|
SECTION 8. NEGATIVE COVENANTS |
|
|
42 |
|
8.1 Payroll Taxes |
|
|
42 |
|
8.2 Debt |
|
|
42 |
|
8.3 Liens |
|
|
44 |
|
8.4 Employee Plans |
|
|
44 |
|
8.5 Transactions with Affiliates |
|
|
45 |
|
8.6 Compliance with Governmental Requirements and Documents |
|
|
45 |
|
8.7 Investments |
|
|
45 |
|
8.8 Real Property |
|
|
46 |
|
8.9 Distributions; Other Payments |
|
|
46 |
|
8.10 Disposition of Assets |
|
|
46 |
|
8.11 Mergers, Consolidations and Dissolutions |
|
|
46 |
|
8.12 Assignment |
|
|
47 |
|
8.13 Fiscal Year and Accounting Methods |
|
|
47 |
|
8.14 New Businesses |
|
|
47 |
|
8.15 Government Regulations |
|
|
47 |
|
8.16 Financial Contracts |
|
|
47 |
|
8.17 Strict Compliance |
|
|
47 |
|
|
|
|
|
|
SECTION 9. FINANCIAL COVENANTS |
|
|
47 |
|
9.1 Minimum Net Worth |
|
|
47 |
|
9.2 Non-Hotel/Motel Loans |
|
|
47 |
|
9.3 Debt of First Western |
|
|
47 |
|
|
|
|
|
|
SECTION 10. EVENT OF DEFAULT |
|
|
48 |
|
10.1 Payment of Obligation |
|
|
48 |
|
10.2 Covenants |
|
|
48 |
|
10.3 Debtor Relief |
|
|
48 |
|
10.4 Judgments and Attachments |
|
|
48 |
|
10.5 Government Action |
|
|
48 |
|
10.6 Misrepresentation |
|
|
49 |
|
10.7 Ownership of Other Companies |
|
|
49 |
|
10.8 Change of Control |
|
|
49 |
|
10.9 Change in Management |
|
|
49 |
|
10.10 Other Debt |
|
|
49 |
|
10.11 Rate Management Transactions |
|
|
49 |
|
10.12 Validity and Enforceability of Credit Documents |
|
|
49 |
|
10.13 Material Agreement Default or Cancellation |
|
|
49 |
|
10.14 Environmental Matters |
|
|
50 |
|
10.15 Employee Benefit Plans |
|
|
50 |
|
|
|
|
|
|
SECTION 11. RIGHTS AND REMEDIES |
|
|
51 |
|
11.1 Remedies Upon Event of Default |
|
|
51 |
|
11.2 Company Waivers |
|
|
51 |
|
11.3 Performance by Administrative Agent |
|
|
52 |
|
Amended and Restated Credit Agreement Page iii
TABLE OF CONTENTS
|
|
|
|
|
|
|
Page |
|
|
|
|
|
|
11.4 Not in Control |
|
|
52 |
|
11.5 Course of Dealing |
|
|
52 |
|
11.6 Cumulative Rights |
|
|
53 |
|
11.7 Application of Proceeds |
|
|
53 |
|
11.8 Certain Proceedings |
|
|
53 |
|
11.9 Expenditures by Administrative Agent or Lenders |
|
|
53 |
|
|
|
|
|
|
SECTION 12. ADMINISTRATIVE AGENT AND LENDERS |
|
|
53 |
|
12.1 Administrative Agent |
|
|
53 |
|
12.2 Expenses |
|
|
55 |
|
12.3 Proportionate Absorption of Losses |
|
|
55 |
|
12.4 Delegation of Duties; Reliance |
|
|
55 |
|
12.5 Limitation of Administrative Agents Liability |
|
|
56 |
|
12.6 Event of Default |
|
|
57 |
|
12.7 Limitation of Liability |
|
|
57 |
|
12.8 Relationship of Lenders |
|
|
57 |
|
12.9 Benefits of Agreement |
|
|
57 |
|
|
|
|
|
|
SECTION 13. BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS |
|
|
58 |
|
13.1 Successors and Assigns |
|
|
58 |
|
13.2 Participations |
|
|
58 |
|
13.3 Assignments |
|
|
59 |
|
13.4 Dissemination of Information |
|
|
60 |
|
13.5 Tax Treatment |
|
|
60 |
|
|
|
|
|
|
SECTION 14. MISCELLANEOUS |
|
|
60 |
|
14.1 Nonbusiness Days |
|
|
60 |
|
14.2 Communications |
|
|
60 |
|
14.3 Form and Number of Documents |
|
|
60 |
|
14.4 Exceptions to Covenants |
|
|
61 |
|
14.5 Survival |
|
|
61 |
|
14.6 Governing Governmental Requirements |
|
|
61 |
|
14.7 Invalid Provisions |
|
|
61 |
|
14.8 Conflicts Between Credit Documents |
|
|
61 |
|
14.9 Discharge Only Upon Payment in Full; Reinstatement in
Certain Circumstances |
|
|
61 |
|
14.10 Amendments, Consents, Conflicts, and Waivers |
|
|
61 |
|
14.11 Multiple Counterparts |
|
|
62 |
|
14.12 VENUE, SERVICE OF PROCESS, AND JURY TRIAL |
|
|
62 |
|
14.13 Entirety |
|
|
64 |
|
14.14 Amendment and Restatement |
|
|
64 |
|
Amended and Restated Credit Agreement Page iv
SCHEDULES
|
|
|
|
|
Schedule 2
|
|
|
|
Lenders and Commitments |
Schedule 6.3
|
|
|
|
Information Regarding Companies |
Schedule 6.8
|
|
|
|
Litigation |
Schedule 8.2
|
|
|
|
Existing Debt |
Schedule 8.3
|
|
|
|
Existing Liens |
EXHIBITS
|
|
|
|
|
Exhibit A
|
|
|
|
Revolving Note |
Exhibit B
|
|
|
|
Borrowing Request |
Exhibit C
|
|
|
|
Conversion Notice |
Exhibit D
|
|
|
|
Compliance Certificate |
Exhibit E
|
|
|
|
Assignment Agreement |
Amended and Restated Credit Agreement Page v
AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDED AND RESTATED CREDIT AGREEMENT is entered into as of December 28, 2010, among PMC
COMMERCIAL TRUST, a real estate investment trust organized under the laws of the State of Texas
(PMC), FIRST WESTERN SBLC, Inc., a Florida corporation (First Western; together
with PMC, the Borrowers and individually, a Borrower), certain Lenders (defined
below) and JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, a national banking association
(successor-in-interest to Bank One, NA), as Administrative Agent (defined below) for itself and the
other Lenders.
PRELIMINARY STATEMENT:
A. PMC, the Administrative Agent and the Lenders have entered into that certain Credit
Agreement dated as of February 29, 2004, as amended through the date hereof (as amended, the
Existing Credit Agreement).
B. PMC and First Western have requested and the Administrative Agent and the Lenders have
agreed to restructure the revolving credit facility, to add First Western as a Borrower and to
amend, modify and restate the Existing Credit Agreement upon the terms and conditions hereinafter
set forth.
ACCORDINGLY, for adequate and sufficient consideration, the receipt of which is hereby
acknowledged, Borrowers, Administrative Agent and Lenders agree as follows:
SECTION 1. DEFINITIONS AND TERMS.
1.1 Definitions. As used in the Credit Documents:
Adjusted One Month LIBOR Rate means, with respect to a CBFR Borrowing for any day,
an interest rate per annum equal to the sum of (i) 2.50% plus (ii) the LIBOR Rate for one month
Interest Period on such day (or if such day is not a Business Day, the immediately preceding
Business Day); provided that, for the avoidance of doubt, the LIBOR Rate for any day shall be based
on the rate appearing on the Reuters Screen LIBOR01 Page (or on any successor or substitute page)
at approximately 11:00 a.m. London time on such day.
Administrative Agent means JPMorgan Chase Bank, National Association
(successor-in-interest to Bank One, NA) (or its successors appointed under Section 12),
acting as administrative, managing and syndication agent for Lenders under the Credit Documents.
Affiliate of a Person means any other Person who directly or indirectly controls, is
controlled by, or is under common control with that Person. For purposes of this definition (a)
control, controlled by, and under common control with mean possession, directly or
indirectly, of power to direct or cause the direction of management or policies (whether through
ownership of voting securities or other interests, by contract or otherwise) and (b) the Companies
and the Special Purpose Entities are Affiliates of each other.
Amended and Restated Credit Agreement Page 1
Applicable Margin means, for any day, the margin of interest under or over the CB
Floating Rate or the LIBOR Rate, as the case may be, that is applicable when the CB Floating
Rate or LIBOR Rate, as applicable, is determined under this agreement, which margin of
interest shall be as follows:
|
|
|
|
|
Type of Borrowing |
|
Applicable Margin |
|
CB Floating Rate |
|
|
-0.50 |
% |
LIBOR Rate |
|
|
2.00 |
% |
Asset Securitization means any transaction or series of transactions that may be
entered into by any Company pursuant to which such Company or any of its Subsidiaries may sell,
convey or otherwise transfer any of their assets to a Special Purpose Entity, and pursuant to which
the Special Purpose Entity will, in turn, pay to such Company a portion of the proceeds of a
secured loan or debt offering to public or private investors (with such secured loan or debt
offering being, among other things, non recourse to such Company).
Assignment means any assignment described in Section 13.3.
Borrower and Borrowers are defined in the preamble to this agreement.
Borrowing means any amount disbursed (a) by one or more Lenders to or on behalf of
any Borrower under the Credit Documents, either as an original disbursement of funds or a renewal,
extension, modification or continuation of an amount outstanding, or (b) by any Lender in
accordance with, and to satisfy a Companys obligations under, any Credit Document.
Borrowing Date is defined in Section 2.2(a).
Borrowing Request means a request, subject to Section 2.2(a) in the case of
a request by PMC and Section 2.6(a) in the case of a request by First Western,
substantially in the form of Exhibit B and otherwise in form and scope acceptable to
Administrative Agent.
Business Day means (a) for purposes of any LIBOR Rate Borrowing, a day when
commercial banks are open for international business in London, England, and (b) for all other
purposes, any day other than Saturday, Sunday and any other day that most commercial banks in Texas
are closed.
Capital Lease means any capital lease or sublease which should be capitalized on a
balance sheet in accordance with GAAP.
CB Floating Rate means the Prime Rate; provided that the CB Floating Rate shall, on
any day, not be less than the Adjusted One Month LIBOR Rate. The CB Floating Rate is a variable
rate and any change in the CB Floating Rate due to any change in the Prime Rate or the Adjusted One
Month LIBOR Rate is effective from and including the effective date of such change in the Prime
Rate or the Adjusted One Month LIBOR Rate, respectively.
CBFR Borrowing means a Borrowing bearing interest at the sum of the CB Floating Rate
plus the Applicable Margin for CBFR Borrowings.
Amended and Restated Credit Agreement Page 2
CERCLA means the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, 42 U.S.C. §§9601 et seq.
Change of Control means 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, as amended) of 20% or more of the
outstanding shares of beneficial interest of PMC having voting rights.
Closing Date means the date upon which this agreement has been executed by
Borrowers, Lenders and Administrative Agent and all conditions precedent specified in Section
5.1 have been satisfied or waived.
Code means the Internal Revenue Code of 1986.
Commercial Loan Obligor means each Person who is obligated or liable for the payment
or performance of all or any portion of a Commercial Loan.
Commercial Loans means loans made by any Company to any Person (other than an
Affiliate of the Companies) for business or commercial purposes and not for family consumer or
household use, which loans are secured by real property or personal property.
Commitment Percentage means, for any Lender, the proportion (stated as a percentage)
that its Commitment bears to the total Commitments of all Lenders.
Commitment Usage means, at the time of any determination thereof, the aggregate
Principal Debt.
Commitments means, collectively, the PMC Commitment and the First Western
Commitment.
Committed Sum means, for any Lender, the amount (subject to increase, reduction or
cancellation as provided in this agreement) stated beside its name on Schedule 2, as such
amount may be (a) increased in accordance with the terms hereof and the definition of Total
Commitment Amount and (b) adjusted pursuant to permitted assignments in accordance with the terms
of this agreement.
Companies means at any time, PMC, First Western and each of their respective
Subsidiaries (other than Special Purpose Entities).
Compliance Certificate means a certificate substantially in the form of Exhibit
D, and otherwise in form and scope satisfactory to Administrative Agent, and signed by a
Responsible Officer of PMC.
Consequential Loss means any loss, expense or reduction in yield (but not any
Applicable Margin) that any Lender reasonably incurs because (a) a Borrower fails or refuses (for
any reason whatsoever other than a default by Administrative Agent or a Lender claiming that loss,
expense or reduction in yield) to take any Borrowing that it has requested under this agreement or
(b) a Borrower prepays or pays any Borrowing or converts any Borrowing to a
Borrowing of another Type, in each case, other than on the last day of the applicable Interest
Period.
Amended and Restated Credit Agreement Page 3
Consolidated Companies means, at any time, PMC and each of its Subsidiaries
(including any Special Purpose Entities that, according to GAAP, are required to be shown on PMCs
consolidated Financials).
Construction Loan means any Mortgage Loan with respect to which the loan funds are
used to finance the construction, renovation or improvement of one or more Projects (provided that
such Mortgage Loan will no longer constitute a Construction Loan once the construction, renovation
or improvement of such Project or Projects is completed, if the Mortgage Loan is structured so as
to convert automatically to a permanent loan upon completion of the construction period).
Conversion Notice means a notice and request from a Borrower to Administrative
Agent, subject to Section 3.10, substantially in the form of Exhibit C, and
otherwise in form and scope satisfactory to Administrative Agent.
Credit Documents means (a) this agreement, certificates and reports delivered under
this agreement, and exhibits and schedules to this agreement, (b) all agreements, documents, and
instruments in favor of Administrative Agent or Lenders (or Administrative Agent on behalf of
Lenders) ever delivered under this agreement or otherwise delivered in connection with all or any
part of the Obligation, including, without limitation, any Guaranty (other than Assignments), and
(c) all renewals, extensions, modifications and restatements of, and amendments and supplements to,
any of the foregoing, which are made in accordance with the provisions of the respective Credit
Documents.
Current Financials, unless otherwise specified:
(a) means either (i) the Consolidated Companies consolidated Financials for the year
ended December 31, 2009, or (ii) at any time after annual Financials are first delivered
under Section 7.1(a), the Consolidated Companies annual Financials then most recently
delivered to Administrative Agent under Section 7.1(a), together with the Consolidated
Companies quarterly Financials then most recently delivered to Administrative Agent under
Section 7.1(b); but
(b) does not include the results of operation and cash flows for any Consolidated
Company for the time period before it becomes a member of the Consolidated Companies.
Debt means, with respect to any Person on any date of determination (without
duplication), (a) all obligations for borrowed money, (b) all obligations evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations to pay the deferred purchase price of
property or services, except trade accounts payable arising in the ordinary course of business,
which are paid when due in accordance with ordinary course payment terms or which are being
contested in good faith in appropriate proceedings, (d) all obligations arising under acceptance
facilities or facilities for the discount or sale of accounts or loans receivable, (e) all direct
or contingent obligations in respect of letters of credit, (f) Capital Lease obligations, (g)
liabilities
secured (or for which the holder of any obligations or liabilities has an existing Right,
contingent or otherwise, to be so secured) by any Lien existing on property owned or acquired by
that Person and (h) all guaranties, endorsements and other contingent obligations for liabilities,
obligations or the maintenance of the financial condition of others, including obligations to
repurchase or purchase properties or to maintain or cause to maintain any financial condition. For
purposes of this agreement, Debt shall not include amounts consisting of cash proceeds received
by any Person from the government guaranteed loans sold for premiums and excess spread that are
required by GAAP to be reflected on the balance sheet of such Person as secured borrowings.
Amended and Restated Credit Agreement Page 4
Debtor Relief Laws means the Bankruptcy Code of the United States of America and all
other applicable laws providing for liquidation, conservatorship, bankruptcy, moratorium,
rearrangement, receivership, insolvency, reorganization, or suspension of payments or similar
Governmental Requirements affecting creditors Rights.
Default Rate means, for any day, an annual interest rate equal to the lesser of
either (a) the CB Floating Rate on such day plus 3.0% or (b) the Maximum Rate.
Delinquent Loans means, at any time, the sum of (i) the aggregate unpaid principal
amount of Commercial Loans and Mortgage Loans owned by any Company which are 31 or more days
delinquent (whether under the initial payment plan or a modified payment plan established pursuant
to a workout), plus (ii) assets acquired in satisfaction of debt, including any assets acquired
through foreclosure, by deed in lieu of foreclosure, liquidation or other similar actions, plus
(iii) Commercial Loans and Mortgage Loans then subject to any legal suit, arbitration proceeding or
other similar action or proceeding.
Distribution means, with respect to any shares of any beneficial interests, capital
stock or other equity securities issued by a Person (a) the retirement, redemption, purchase,
repurchase or other acquisition for value of those securities, (b) the declaration or payment of
any dividend on or with respect to those securities, (c) any loan or advance by that Person to, or
other investment by that Person in, the holder of any of those securities and (d) any other payment
by that Person with respect to those securities.
EBITDA means, with respect to any Person and for any period (without duplication) an
amount equal to (a) Net Income, plus (b) to the extent deducted in calculating Net Income, the sum
of (i) Interest Expense, plus (ii) Tax expense, plus (iii) depreciation and amortization from its
continuing operations, minus (c) to the extent included in calculating Net Income, any gains that
are extraordinary items.
Employee Plan means any employee pension benefit plan (a) covered by Title IV of
ERISA and established or maintained by any Borrower or any ERISA Affiliate (other than a
Multiemployer Plan) or (b) established or maintained by any Borrower or any ERISA Affiliate or to
which any Borrower or any ERISA Affiliate contributes, under the Governmental Requirements of any
foreign country.
Amended and Restated Credit Agreement Page 5
Environmental Investigation means any health, safety or environmental site
assessment, investigation, study, review, audit, compliance audit or compliance review
conducted at any time or from time to time (whether at the request of Administrative Agent or
any Lender, upon the order or request of any Governmental Authority, or at the voluntary
instigation of any Company or Affiliate of any Company or otherwise) concerning any Real Property
or the business operations or activities of any Company or Affiliate of any Company, including,
without limitation, (a) air, soil, groundwater or surface water sampling and monitoring, (b)
repair, cleanup, remediation, or detoxification, (c) preparation and implementation of any closure,
remedial, spill, emergency or other plans, and (d) any health, safety or environmental compliance
audit or review.
Environmental Law means any applicable Governmental Requirement that relates to (a)
the condition of air, ground or surface water, soil, or other environmental media, (b) the
environment or natural resources, (c) safety or health, (d) the regulation of any contaminants,
wastes, and Hazardous Substances, including, without limitation, CERCLA, OSHA, the Hazardous
Materials Transportation Act (49 U.S.C. § 1801 et seq.), the Resource Conservation and Recovery Act
(42 U.S.C. § 6901 et seq.), the Clean Water Act (33 U.S.C. § 1251 et seq.), the Clean Air Act (42
U.S.C. § 7401 et seq.), the Toxic Substances Control Act (15 U.S.C. § 2601 et seq.), the Federal
Insecticide, Fungicide and Rodenticide Act (7 U.S.C. § 136 et seq.), the Emergency Planning and
Community Right-to-Know Act (42 U.S.C. § 11001 et seq.), the Safe Drinking Water Act (42 U.S.C. §
201 and § 300f et seq.), the Rivers and Harbors Act (33 U.S.C. § 401 et seq.), the Oil Pollution
Act (33 U.S.C. § 2701 et seq.), state and local Governmental Requirements, and any future
Governmental Requirements which may be enacted or adopted, in each case, now existing or hereafter
adopted, which are analogous to any of the preceding referenced requirements, or (e) the Release or
threatened Release of Hazardous Substances.
Environmental Liability means any liability, loss, fine, penalty, charge, lien,
damage, cost or expense of any kind to the extent that it results directly or indirectly, in whole
or in part, (a) from the violation of any Environmental Law, (b) from the Release or threatened
Release of any Hazardous Substance, (c) from removal, remediation, or other actions in response to
the Release or threatened Release of any Hazardous Substance, (d) from actual or threatened damages
to natural resources, (e) from the imposition of injunctive relief or other orders, (f) from
personal injury, death, or property damage which occurs as a result of any Companys or any
Affiliate of any Companys use, storage, handling, or Release or threatened Release of a Hazardous
Substance, or (g) from any Environmental Investigation performed at, on, or for any Real Property.
Environmental Lien means any Lien imposed as a result of the operation of any
Environmental Law.
Environmental Permit means any permit or license from any Person defined in
clause (a) of the definition of Governmental Authority that is required under any
Environmental Law for the lawful conduct of any business, process or other activity.
Equity Issuance means the issuance by PMC of any shares of any class of beneficial
interests, stock, warrants, options or other equity interests, whether pursuant to a public
offering or otherwise, but does not include (a) any present and future shares of beneficial
interests, stock, options or warrants issued to employees or trust managers of PMC, or (b) any
present and future
shares of beneficial interests, stock, options or warrants issued in respect of any dividend
reinvestment plan established and maintained by PMC.
Amended and Restated Credit Agreement Page 6
ERISA means the Employee Retirement Income Security Act of 1974.
ERISA Affiliate means any Person that, for purposes of Title IV of ERISA, is a
member of any Borrowers controlled group or is under common control with any Borrower within the
meaning of Section 414 of the Code (which provisions are deemed by this agreement to apply to
Foreign Persons).
Event of Default is defined in Section 10.
Existing Credit Agreement is defined in the recitals of this agreement.
Existing Debt is defined in Section 8.2(a).
Existing Liens is defined in Section 8.3(a).
Federal Funds Rate means, for any day, the annual rate (rounded upwards, if
necessary, to the nearest 0.01%) determined by Administrative Agent (which determination is
conclusive and binding, absent manifest error) to be equal to (a) the weighted average of the rates
on overnight federal funds transactions with member banks of the Federal Reserve System arranged by
federal funds brokers on that day, as published by the Federal Reserve Bank of New York on the next
Business Day or (b) if the rates referred to in the preceding clause (a) are not published
for any day, the average of the quotations at approximately 10:00 a.m. received by Administrative
Agent from three federal funds brokers of recognized standing selected by Administrative Agent in
its sole discretion.
Financial Contract of a Person means (i) any exchange-traded or over-the-counter
futures, forward, swap or option contract or other financial instrument with similar
characteristics, or (ii) any Rate Management Transaction.
Financials of a Person means balance sheets, profit and loss statements,
reconciliations of capital and surplus, and statements of cash flow prepared (a) according to GAAP
(subject to year-end audit adjustments with respect to interim Financials) and (b) except as stated
in Section 1.4, in comparative form to prior year-end figures or corresponding periods of
the preceding fiscal year or other relevant period, as applicable.
First Amendment Effective Date means June 8, 2011.
First Western is defined in the preamble to this agreement.
First Western Commitment means an amount (subject to increase, reduction or
cancellation as herein provided) equal to $10,000,000, provided that, notwithstanding the
foregoing, so long as (a) there exists no Event of Default or Potential Default on such date, (b)
the Total Commitment Amount is being increased on such date in accordance with the definition
thereof and (c) the Non-Performing Loan Ratio is not more than 20% on such date, (i) on January 1,
2012, such $10,000,000 amount shall automatically increase by $5,000,000 to
$15,000,000 and (ii) on January 1, 2013, such $10,000,000 or $15,000,000 amount (as applicable
at the time) shall automatically increase by $5,000,000 to $15,000,000 or $20,000,000, as
applicable.
Amended and Restated Credit Agreement Page 7
First Western Revolving Facility means the revolving line of credit facility
described in Section 2.5.
First Western Revolving Note means one of the promissory notes executed by First
Western in favor of a Lender pursuant to this agreement, substantially in the form of Exhibit
A and otherwise in form and scope acceptable to Administrative Agent and that Lender.
Foreign means, in respect of any Person, a Person organized under the Governmental
Requirements of a jurisdiction other than, or domiciled outside of, the United States of America or
one of its states, territories, commonwealths, or possessions.
GAAP means generally accepted accounting principles of the Accounting Principles
Board of the American Institute of Certified Public Accountants and the Financial Accounting
Standards Board that are applicable from time to time.
Governmental Authority means any (a) local, state, territorial, federal or Foreign
judicial, executive, regulatory, administrative, legislative or governmental agency, board, bureau,
commission, department or other instrumentality, (b) private arbitration board or panel or (c)
central bank.
Governmental Requirements means all applicable statutes, laws, treaties, ordinances,
rules, regulations, orders, writs, injunctions, decrees, judgments, opinions and interpretations of
any Governmental Authority.
Guarantor means any Subsidiary of the Borrower that is a Company which has entered
into a Guaranty of the Obligation, which such Guaranty remains valid, binding and enforceable
against such Company, except as that enforceability may be limited by Debtor Relief Laws and
general principles of equity.
Guaranty means any guaranty agreement executed by PMC or any other Company in favor
of the Administrative Agent for the benefit of itself and the Lenders pursuant to this agreement,
all in form and scope acceptable to Administrative Agent.
Hazardous Substance means (a) any substance that is reasonably expected to require
removal, remediation, or other response under any Environmental Law, (b) any substance that is
designated, defined or classified as a hazardous waste, hazardous material, pollutant, contaminant,
explosive, corrosive, flammable, infectious, carcinogenic, mutagenic, radioactive, dangerous, or
toxic or hazardous substance under any Environmental Law, including, without limitation, any
hazardous substance within the meaning of § 101(14) of CERCLA, (c) petroleum, oil, gasoline,
natural gas, fuel oil, motor oil, waste oil, diesel fuel, jet fuel, and other petroleum
hydrocarbons, (d) asbestos and asbestos-containing materials in any form, (e) polychlorinated
biphenyls; (f) urea formaldehyde foam, or (g) any substance the presence of which on any Real
Property either (i) poses or threatens to pose a hazard to the health or safety of persons or to
the
environment, or (ii) could reasonably be expected to constitute a health or safety hazard to
persons or the environment if emanated or migrated from the Real Property.
Amended and Restated Credit Agreement Page 8
Interest Expense means, with respect to any Person and for any period (without
duplication), all interest on that Persons Debts, whether paid in cash or accrued as a liability
and payable in cash during any subsequent period (including, without limitation, the interest
component of Capital Leases), as determined by GAAP.
Interest Period is determined in accordance with Section 3.9.
Investment means, in respect of any Person, any loan, advance, extension of credit
or capital contribution to that Person, any investment in that Person, or any purchase or
commitment to purchase any equity securities or Debt issued by that Person or substantially all of
the assets or a division or other business unit of that Person.
Investments In and Total Debt Of First Western means, with respect to First Western
and its Subsidiaries on any date of determination, the sum of (a) all Debt outstanding on such
date, including, without limitation, (i) Debt under the First Western Revolving Facility on such
date and (ii) all advances, borrowings and other Debt owed by First Western or any of its
Subsidiaries to PMC or to any other Company on such date, plus (b) the aggregate amount of all
Investments made by PMC and any other Company or Affiliate of any Company in First Western and its
Subsidiaries through such date of determination.
JPMorgan Chase means JPMorgan Chase Bank, National Association, in its individual
capacity as a Lender, and its successors and assigns.
Lenders means the financial institutions (including, without limitation,
Administrative Agent in respect of its share of Borrowings) from time to time party hereto and,
subject to this agreement, their respective successors and assigns (but not any Participant who is
not otherwise a party to this agreement). Lenders on the First Amendment Effective Date are listed
on Schedule 2 hereto.
LIBOR Rate means, for a LIBOR Rate Borrowing and for the relevant Interest Period,
the annual interest rate (rounded upward, if necessary, to the nearest 0.01%) equal to the quotient
obtained by dividing (a) the rate that deposits in United States dollars are offered to
Administrative Agent in the London interbank market at approximately 11:00 a.m. London, England
time two Business Days before the first day of that Interest Period as shown on Reuters Screen
LIBOR01, formerly known as Page 3750 of the Moneyline Telerate Service (together with any successor
or substitute, the Service), or such other page or pages as may replace such pages on the
Service for the purpose of displaying such rate (provided that if such rate is not available on the
Service then such offered rate shall be otherwise independently determined by Administrative Agent
from an alternate, substantially similar independent service available to Administrative Agent or
shall be calculated by Administrative Agent by a substantially similar methodology as that
theretofore used to determine such offered rate in the Service) in an amount comparable to that
LIBOR Rate Borrowing and having a maturity approximately equal to that Interest Period by (b) one
minus the Reserve Requirement (expressed as a decimal) applicable to the relevant Interest Period.
Amended and Restated Credit Agreement Page 9
LIBOR Rate Borrowing means a Borrowing bearing interest at the sum of the LIBOR Rate
plus the Applicable Margin for LIBOR Rate Borrowings.
Lien means any lien, mortgage, security interest, pledge, assignment, charge, title
retention agreement or encumbrance of any kind and any other arrangement for a creditors claim to
be satisfied from assets or proceeds prior to the claims of other creditors or the owners (other
than title of the lessor under an operating lease).
Litigation means any action, proceeding, investigation or hearing by or before any
Governmental Authority.
Loan Obligor means any Mortgage Loan Obligor and/or Commercial Loan Obligor.
Material Adverse Event means any circumstance or event that, individually or
collectively, is reasonably expected to result (at any time before the Commitment is fully canceled
or terminated and the Obligation is fully paid and performed) in any (a) material impairment of (i)
the ability of any Borrower or any other Company to perform any of its payment or other material
obligations under any Credit Document or (ii) the ability of Administrative Agent or any Lender to
enforce any of those obligations or Rights under the Credit Documents, (b) material and adverse
effect on the business, management or financial condition of Borrowers or of the Companies as a
whole, as represented to Lenders in the Current Financials, or (c) Event of Default or Potential
Default.
Maximum Amount and Maximum Rate respectively mean, for a Lender, the
maximum non-usurious amount and the maximum non-usurious rate of interest that, under applicable
Governmental Requirements of the State of Texas or federal laws of the United States of America (as
applicable), that Lender is permitted to contract for, charge, take, reserve or receive on the
Obligation.
Mortgage means a mortgage, deed of trust or trust deed that grants a perfected
first-priority Lien (or a second- or third-priority Lien in the case of Second-Lien Loans and
Third-Lien Loans, respectively) on a Project.
Mortgage Loan means a commercial mortgage loan (i.e. not for family, consumer or
household use) made by a Company that is evidenced by a valid promissory note and is secured by a
Mortgage.
Mortgage Loan Documents means, with respect to each Mortgage Loan, the documents
designated as such on Schedule 5.2.
Mortgage Loan Obligor means each Person who is obligated or liable for the payment
or performance of all or any portion of a Mortgage Loan.
Mortgage Loans in Liquidation means those Mortgage Loans with respect to which the
Mortgage Loan Obligor has failed to respond to any Companys demand and acceleration letters, and
to which any Company has determined that the best course of action is to liquidate the Mortgage
Loan in order to foreclose on the collateral securing the same and has commenced such foreclosure
action.
Amended and Restated Credit Agreement Page 10
Mortgage Loans in Litigation means those Mortgage Loans with respect to which the
Mortgage Loan Obligors have ceased making regularly scheduled payments and are not responding to
any Companys collection efforts, thereby requiring legal action to collect the Mortgage Loan. If
the Mortgage Loan Obligor brings the loan current in accordance with the original terms thereof,
the Mortgage Loan may be returned to the status of an Eligible Mortgage Loan. If, however, the
terms of such Mortgage Loan are restructured, the Mortgage Loan will be converted to a Workout Loan
(i.e. no longer a Mortgage Loan in Litigation). Furthermore, should an alternative repayment
agreement be established, the Mortgage Loan in Litigation will be considered a Workout Loan (i.e.
no longer a Mortgage Loan in Litigation).
Multiemployer Plan means a multiemployer plan as defined in Sections 3(37) or
4001(a)(3) of ERISA or Section 414(f) of the Code (or any similar type of plan established or
regulated under the Governmental Requirements of any foreign country) to which any Borrower or any
ERISA Affiliate is making, or has made, or is accruing, or has accrued, an obligation to make
contributions.
Net Income of any Person means that Persons profit or loss determined in accordance
with GAAP.
Net Proceeds means the net proceeds, whether received in cash or otherwise, received
before, on or after the date of consummation of a subject transaction, by any Person from such
transaction, after payment of (a) all usual and customary brokerage commissions and all other
reasonable fees and expenses related to such transaction (including, without limitation, reasonable
attorneys fees and closing costs), and (b) any Debt (other than the Obligation) relating to the
assets being sold which must be repaid in connection with such subject transaction.
Net Worth means, for any Person, total beneficiaries or stockholders equity, as
applicable, as determined in accordance with GAAP.
Non-Performing Loan Ratio means, on any date of determination for the Consolidated
Companies, the ratio of (a) the outstanding principal balance of consolidated Non-Performing Loans
on such date to (b) consolidated Net Worth on such date.
Non-Performing Loans means (a) all Delinquent Loans, (b) all Mortgage Loans with
respect to which a default has occurred as to the payment of any installment of principal or
interest or another monetary default has occurred under any Mortgage Loan Document related thereto
and such default has not been cured for more than thirty (30) days, (c) all Mortgage Loans in
Litigation, (d) all Mortgage Loans in Liquidation, and (e) all Mortgage Loans with respect to which
any Mortgage Loan Obligor has not paid its Debts as they mature or has made a general assignment
for the benefit of creditors or with respect to whom proceedings in bankruptcy or for
reorganization or liquidation under the bankruptcy code or under any other state or federal law for
the relief of debtors has been commenced by or against such Mortgage Loan Obligor and shall not
have been discharged within thirty (30) days of the commencement thereof or for whom (or for whose
assets) a receiver, trustee or custodian shall have been appointed or who may die, be dissolved or
who may involuntarily suspend the transaction of its business. Notwithstanding the foregoing,
Non-Performing Loans shall not at any time include (i)
any Delinquent Loans or Mortgage Loans that would otherwise satisfy any of the criteria in
clause (a) through (e) above but are owned by a Special Purpose Entity and are non
recourse to the Companies or (ii) the sold government guaranteed portion of Delinquent Loans or
Mortgage Loans.
Amended and Restated Credit Agreement Page 11
Notes means, at the time of any determination thereof, all outstanding and unpaid
Revolving Notes.
Obligation means (a) all present and future Debts, liabilities and obligations of
any Company to Administrative Agent, or any Lender and related to any Credit Document, whether
principal, interest, fees, costs, attorneys fees or otherwise, (b) all present and future Rate
Management Obligations, (c) any of the foregoing amounts that would become due but for the
operation of 11 U.S.C. § 502 and 503 or any other provision of Title 11 of the United States Code,
(d) all present and future pre- and post-maturity interest on any of the foregoing, including all
post-petition interest if any Company voluntarily or involuntarily files for protection under any
Debtor Relief Law, and (e) renewals, extensions, rearrangements and modifications of any character
whatsoever of any the foregoing.
Organizational Documents means, for any Person, the documents for its formation and
organization, which, for example, (a) for a corporation are its corporate charter and bylaws, (b)
for a partnership are its certificate of partnership (if applicable) and partnership agreement, (c)
for a limited liability company are its certificate of formation or organization and its operating
agreement, regulations or the like and (d) for a trust is the trust agreement, declaration of
trust, indenture or bylaws under which it is created.
OSHA means the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq.
Participant is defined in Section 13.2(a).
PBGC means the Pension Benefit Guaranty Corporation.
Permitted Asset Sale means (a) any sale of assets which are obsolete or are no
longer in use and which are not significant to the continuation of the Companies business, (b) any
sale of REO Property, (c) any sale of the government guaranteed portion of Commercial Loans and
Mortgage Loans, (d) any sale and disposition in the ordinary course of business on current market
terms, and (e) any other sales and dispositions approved in writing in advance by Administrative
Agent, provided that, notwithstanding the foregoing, in no event will any Asset Securitization or
Structured Financing be permitted to occur after the First Amendment Effective Date.
Permitted Debt is defined in Section 8.2.
Permitted Investments is defined in Section 8.7.
Permitted Liens is defined in Section 8.3.
Person means any individual, entity or Governmental Authority.
Amended and Restated Credit Agreement Page 12
PMC is defined in the preamble to this agreement.
PMC Commitment means on any date of determination, an amount (subject to increase,
reduction or cancellation as herein provided) equal to (a) the applicable Total Commitment Amount
on such date, minus (b) the Commitment Usage under the First Western Revolving Facility on such
date.
PMC Revolving Facility means the revolving line of credit facility described in
Section 2.1.
PMC Revolving Note means one of the promissory notes executed by PMC in favor of a
Lender pursuant to this agreement, substantially in the form of Exhibit A and otherwise in
form and scope acceptable to Administrative Agent and that Lender.
Potential Default means any event, occurrence or circumstance the existence of
which, upon any required notice, time lapse, or both, could become an Event of Default.
Prime Rate means the rate of interest per annum publicly announced from time to time
by JPMorgan Chase as its prime rate. The Prime Rate is a variable rate and each change in the
Prime Rate is effective from and including the date the change is announced as being effective.
THE PRIME RATE IS A REFERENCE RATE AND MAY NOT BE JPMORGAN CHASES LOWEST RATE.
Principal Debt means, at any time, the unpaid principal balance of all Borrowings.
Pro Rata and Pro Rata Part mean, at any time and for any Lender, the
proportion (stated as a percentage) that the Principal Debt owed to it bears to the total Principal
Debt owed to all Lenders.
Projects means the commercial real estate projects owned from time to time by Loan
Obligors which are subject to perfected Liens which secure Mortgage Loans or Commercial Loans owned
by Companies. The term Project means and includes the land and all appurtenances, servitudes,
easements, rights, privileges, prescriptions and advantages belonging or in any way appertaining to
the land and all buildings, fixtures, improvements, equipment and other property, whether real,
personal or mixed, located upon the land or used or intended to be used in connection with the land
or buildings, fixtures or improvements thereon.
Purchaser is defined in Section 13.3.
Rate Management Obligations of a Person means any and all obligations of such
Person, whether absolute or contingent and howsoever and whensoever created, arising, evidenced or
acquired (including all renewals, extensions and modifications thereof and substitutions therefor)
under (i) any and all Rate Management Transactions, and (ii) any and all cancellations, buy backs,
reversals, terminations or assignments of any Rate Management Transactions.
Amended and Restated Credit Agreement Page 13
Rate Management Transaction means any transaction (including an agreement with
respect thereto) now existing or hereafter entered into between any Borrower and any Lender or
any Affiliate thereof which is a rate swap, basis swap, forward rate transaction, commodity
swap, commodity option, equity or equity index swap, equity or equity index option, bond option,
interest rate option, foreign exchange transaction, cap transaction, floor transaction, collar
transaction, forward transaction, currency swap transaction, cross-currency rate swap transaction,
currency option or any other similar transaction (including any option with respect to any of these
transactions) or any combination thereof, whether linked to one or more interest rates, foreign
currencies, commodity prices, equity prices or other financial measures.
Real Property means any land, buildings, fixtures and other improvements to land now
or in the future directly or indirectly owned by any Company, leased to or otherwise operated by
any Company or subleased by any Company to any other Person.
Regulation D means Regulation D of the Board of Governors of the Federal Reserve
System as from time to time in effect and any successor thereto or other regulation or official
interpretation of said Board of Governors relating to reserve requirements applicable to member
banks of the Federal Reserve System.
Regulation U means Regulation U of the Board of Governors of the Federal Reserve
System as from time to time in effect and any successor or other regulation or official
interpretation of said Board of Governors relating to the extension of credit by banks for the
purpose of purchasing or carrying margin stocks applicable to member banks of the Federal Reserve
System.
REIT means a real estate investment trust as defined in the Code.
Release means any release as defined under any Environmental Law.
Renegotiated Loan means any Mortgage Loan with respect to which the applicable
Mortgage Loan Obligor has had insufficient cash flow or negative economic events which have
diminished its ability to make timely or complete payments and the applicable Company has given its
concurrence to an alternative schedule of repayment.
REO Property means real property acquired through foreclosure, deed-in-lieu of
foreclosure, workout of a loan transaction secured by such real estate or similar process.
Reportable Event means a reportable event as defined in Section 4043 of ERISA and
the regulations issued under such section, with respect to an Employee Plan, excluding, however,
such events as to which the PBGC has by regulation waived the requirement of Section 4043(a) of
ERISA that it be notified within 30 days of the occurrence of such event, provided, however, that a
failure to meet the minimum funding standard of Section 412 of the Code and of Section 302 of ERISA
shall be a Reportable Event regardless of any such waiver of the notice requirement in accordance
with either Section 4043(a) of ERISA or Section 412(d) of the Code.
Representatives means, with respect to a Person, its representatives, officers,
directors, employees, accountants, attorneys, insurers, shareholders and agents.
Amended and Restated Credit Agreement Page 14
Required Lenders means any combination of one or more Lenders holding (directly or
indirectly) at least either (i) 66 2/3% of the total Commitments while there is no Principal Debt,
or (ii) 66 2/3% of the Principal Debt while there is any Principal Debt.
Reserve Requirement means, for any LIBOR Rate Borrowing and for the relevant
Interest Period, the total reserve requirements (including all basic, supplemental, emergency,
special, marginal and other reserves required by applicable Governmental Requirements, including,
without limitation, Regulation D) applicable to eurocurrency fundings or liabilities, as of the
first day of that Interest Period, in amount and maturity of such Borrowing.
Responsible Officer means a Borrowers chairman, president, chief executive officer,
chief financial officer, chief operating officer, executive vice president or, with respect to
non-financial matters, its general counsel.
Revolving Notes means collectively, the PMC Revolving Notes and the First Western
Revolving Notes.
Rights means rights, remedies, powers, privileges and benefits.
SBIC means a Person that is a Small Business Investment Company as licensed by the
U.S. Small Business Administration.
Second-Lien Loan means a Mortgage Loan secured by a Mortgage granting a
second-priority Lien on a Project, subject only to the first-priority Lien on the same project in
favor of the applicable Company.
Segmented Loan means any Mortgage Loan which has been segmented into parts for
securitization purposes.
Solvent means, as to any Person, that (a) the aggregate fair market value of such
Persons assets exceeds its liabilities (whether contingent, subordinated, unmatured, unliquidated,
or otherwise), (b) such Person has sufficient cash flow to enable it to pay its debts as they
mature and (c) such Person does not have unreasonably small capital to conduct its businesses.
Special Purpose Entity means a special purpose Wholly-owned Subsidiary of PMC,
created in connection with the transactions contemplated by an Asset Securitization, which engages
in no activities, has no material liabilities, and owns no other assets, other than those
incidental to such Asset Securitization.
Specified Subsidiary means each Subsidiary of PMC that is not First Western or a
Special Purpose Entity, and Specified Subsidiaries means all Subsidiaries of PMC except
First Western and those Subsidiaries that are Special Purpose Entities.
Stated Termination Date means June 30, 2014.
Structured Financing means a financing arrangement whereby (a) the obligor is a
Special Purpose Entity, (b) no Company (other than such Special Purpose Entity) has any
obligation to pay the indebtedness or any other obligations arising thereunder, and (c) the
obligees thereunder have no recourse against any of the Companies (other than the Special Purpose
Entity involved in the financing) or their assets.
Amended and Restated Credit Agreement Page 15
Subsidiary of any Person means any other Person of which (a) more than 50% (in
number of votes) of the stock (or equivalent interests) is owned of record or beneficially,
directly or indirectly, by that Person or (b) such Person serves as a general partner or in a
similar capacity. Unless otherwise specified or the context otherwise requires,
Subsidiary refers to a Subsidiary of PMC.
Taxes means, for any Person, taxes, assessments or other governmental charges or
levies imposed upon it, its income or any of its properties, franchises or assets.
Termination Date means the earlier of (a) the Stated Termination Date or (b) the
effective date that the Lenders commitments to lend under this agreement are fully canceled or
terminated.
Third-Lien Loan means a Mortgage Loan secured by a Mortgage granting a
third-priority Lien on a Project, subject only to the first- and second-priority Liens on the same
project in favor of Borrower.
Total Commitment Amount means, $30,000,000, provided that,
notwithstanding the foregoing, so long as there exists no Event of Default or Potential Default on
such date and the Non-Performing Loan Ratio is not more than 20% on such date, (a) on January 1,
2012, such $30,000,000 amount shall automatically increase by $5,000,000 to $35,000,000 and (ii) on
January 1, 2013, such $30,000,000 or $35,000,000 amount (as applicable at the time) shall
automatically increase by $5,000,000 to $35,000,000 or $40,000,000, as applicable.
Type means any type of Borrowing determined with respect to the applicable interest
option.
UCC means the Uniform Commercial Code as enacted in Texas or other applicable
jurisdictions.
Wholly-owned when used in connection with any Subsidiary shall mean a Subsidiary of
which all of the issued and outstanding shares of stock (or equivalent interests) are owned by PMC
or one or more of its Wholly-owned Subsidiaries.
Workout Loans means (a) those Mortgage Loans with respect to which the Mortgage Loan
Obligors have had insufficient cash flow and/or negative economic events which have diminished
their ability to make timely and/or complete payments and the applicable Company has given its
concurrence to an alternative schedule of repayment, and (b) those Mortgage Loans previously
classified as loans in Litigation which have been brought current by the Mortgage Loan Obligors.
Workout Loans will be maintained in this category for a minimum of six (6) months and will be
designated as performing (and therefore no longer a Workout Loan) if, based upon payment history
under the revised plan (or existing payment plan with respect to Mortgage Loans previously
classified as Mortgage Loans in Litigation which have been brought current),
financial information when available, and PMCs professional opinion of each situation, it
appears that it is no longer a problem loan.
Amended and Restated Credit Agreement Page 16
1.2 Time References. Unless otherwise specified, in the Credit Documents (a) time
references (e.g., 10:00 a.m.) are to time in Dallas, Texas, and (b) in calculating a period from
one date to another, the word from means from and including and the word to or until means
to but excluding.
1.3 Other References. Unless otherwise specified, in the Credit Documents (a) where
appropriate, the singular includes the plural and vice versa, and words of any gender include each
other gender, (b) heading and caption references may not be construed in interpreting provisions,
(c) monetary references are to currency of the United States of America, (d) section, paragraph,
annex, schedule, exhibit and similar references are to the particular Credit Document in which they
are used, (e) references to telecopy, telefax, facsimile, fax or similar terms are to
facsimile or telecopy transmissions, (f) references to including mean including without limiting
the generality of any description preceding that word, (g) the rule of construction that references
to general items, following references to specific items are limited to the same type or character
of those specific items is not applicable in the Credit Documents, (h) references to any Person
include that Persons heirs, personal representatives, successors, trustees, receivers and
permitted assigns, (i) references to any Governmental Requirement include every amendment or
supplement to it, rule and regulation adopted under it, and successor or replacement for it and (j)
references to any Credit Document or other document include every renewal and extension of it,
amendment, modification and supplement to it, and replacement or substitution for it, as each is
made in accordance with the applicable provisions of such Credit Document.
1.4 Accounting Principles. Unless otherwise specified, in the Credit Documents (a)
GAAP determines all accounting and financial terms and compliance with financial covenants, (b)
GAAP in effect on the date of this agreement determines compliance with financial covenants, (c)
all accounting principles applied in a current period must be comparable in all material respects
to those applied during the preceding comparable period and (d) while the Financials for the
Companies are on a consolidated basis, (i) all accounting and financial terms and compliance with
reporting covenants must be on a consolidated basis, as applicable and (ii) compliance with
financial covenants must be on a consolidated basis.
SECTION 2. COMMITMENTS.
2.1 PMC Revolving Facility. Subject to and in reliance upon the terms, conditions,
representations and warranties in the Credit Documents, each Lender severally and not jointly
agrees to lend to PMC such Lenders Commitment Percentage of one or more Borrowings under the PMC
Revolving Facility not to exceed such Lenders Committed Sum, which, subject to the Credit
Documents, PMC may borrow, repay and reborrow under this agreement, provided that (a) each such
Borrowing must occur on a Business Day and no later than the Business Day immediately preceding the
Termination Date, (b) each such Borrowing shall be in an amount not less than $500,000 or a greater
integral multiple of $100,000, (c) on any date of determination, the Commitment Usage under the PMC
Revolving Facility shall never exceed the PMC Commitment and (d) on any date of determination, the
Commitment Usage under the Commitments shall never exceed the Total Commitment Amount applicable at
such time.
Amended and Restated Credit Agreement Page 17
2.2 PMC Borrowing Procedure. The following procedures apply to all Borrowings under
the PMC Revolving Facility:
(a) Borrowing Request. PMC may request a Borrowing only by making or
delivering a Borrowing Request to Administrative Agent, which is irrevocable and binding on
PMC, stating the Type, amount and, if applicable, Interest Period for each Borrowing and
which must be received by Administrative Agent no later than (i) 10:00 a.m. on the second
Business Day before the date on which funds are requested (the Borrowing Date) for
any LIBOR Rate Borrowing or (ii) 10:00 a.m. on the Borrowing Date for any CBFR Borrowing.
Administrative Agent shall promptly notify each Lender of any Borrowing Request.
(b) Funding. Each Lender shall remit its Commitment Percentage of each
requested Borrowing to Administrative Agents principal office in Dallas, Texas, in funds
that are available for immediate use by Administrative Agent by 2:00 p.m. on the applicable
Borrowing Date. Subject to receipt of those funds, Administrative Agent shall (unless to
its actual knowledge any of the applicable conditions precedent have not been satisfied by
PMC or waived by the requisite Lenders under Section 14.10) make those funds
available to PMC by (at PMCs option) (i) wiring the funds to or for the account of PMC at
the direction of PMC or (ii) depositing the funds in PMCs account with Administrative
Agent.
(c) Funding Assumed. Absent contrary written notice from a Lender,
Administrative Agent may assume that each Lender has made its Commitment Percentage of the
requested Borrowing available to Administrative Agent on the applicable Borrowing Date, and
Administrative Agent may, in reliance upon such assumption (but shall not be required to),
make available to PMC a corresponding amount. If a Lender fails to make its Commitment
Percentage of any requested Borrowing available to Administrative Agent on the applicable
Borrowing Date, Administrative Agent may recover the applicable amount on demand, (i) from
that Lender together with interest, commencing on the Borrowing Date and ending on (but
excluding) the date Administrative Agent recovers the amount from that Lender, at an annual
interest rate equal to the Federal Funds Rate, or (ii) if that Lender fails to pay its
amount upon demand, then from PMC. No Lender is responsible for the failure of any other
Lender to make its Commitment Percentage of any Borrowing; however, failure of any Lender to
make its Commitment Percentage of any Borrowing does not excuse any other Lender from making
its Commitment Percentage of any Borrowing.
2.3 PMC Borrowing Requests. Each Borrowing Request constitutes a representation and
warranty by PMC that as of the Borrowing Date, all of the conditions precedent for that Borrowing
in Section 5 have been satisfied.
Amended and Restated Credit Agreement Page 18
2.4 Reduction or Termination of PMC Commitment. Without premium or penalty, and upon
giving not less than three Business Days prior written and irrevocable notice to Administrative
Agent, PMC may terminate in whole or in part the unused portion of the PMC Commitment; provided
that: (a) each partial termination shall be in an amount of not less than $5,000,000 or a greater
integral multiple of $2,500,000; (b) the amount of the PMC Commitment
may not be reduced below the Commitment Usage at such time; (c) the amount of the PMC
Commitment may not be reduced below the First Western Commitment; and (d) each reduction shall be
allocated among the Lenders in accordance with their respective Commitment Percentages. Promptly
after receipt of such notice of termination or reduction, Administrative Agent shall notify each
Lender of the proposed cancellation or reduction. Such termination or partial reduction of the PMC
Commitment shall be effective on the Business Day specified in Borrowers notice (which date must
be at least three Business Days after Borrowers delivery of such notice). In the event that the
PMC Commitment is reduced to zero at a time when there is no outstanding Principal Debt, this
agreement shall be terminated (except for any indemnification or expense reimbursement provisions
in this agreement which survive the termination of this agreement) and all commitment fees and
other fees then earned and unpaid hereunder and all other amounts constituting part of the
Obligation then due and owing shall be immediately due and payable, without notice or demand by
Administrative Agent or any Lender.
2.5 First Western Revolving Facility. Subject to and in reliance upon the terms,
conditions, representations and warranties in the Credit Documents, each Lender severally and not
jointly agrees to lend to First Western such Lenders Commitment Percentage of one or more
Borrowings under the First Western Revolving Facility not to exceed such Lenders Committed Sum,
which, subject to the Credit Documents, First Western may borrow, repay and reborrow under this
agreement, provided that (a) each such Borrowing must occur on a Business Day and no later than the
Business Day immediately preceding the Termination Date, (b) each such Borrowing shall be in an
amount not less than $500,000 or a greater integral multiple of $100,000, (c) on any date of
determination, the Commitment Usage under the First Western Revolving Facility shall never exceed
the First Western Commitment, (d) on any date of determination, the Commitment Usage under the PMC
Revolving Facility shall never exceed the PMC Commitment, and (e) on any date of determination, the
Commitment Usage under the Commitments shall never exceed the Total Commitment Amount applicable at
such time.
2.6 First Western Borrowing Procedure. The following procedures apply to all
Borrowings under the First Western Revolving Facility:
(a) Borrowing Request. First Western may request a Borrowing only by making or
delivering a Borrowing Request to Administrative Agent, which is irrevocable and binding on
First Western, stating the Type, amount and, if applicable, Interest Period for each
Borrowing and which must be received by Administrative Agent no later than (i) 10:00 a.m. on
the second Business Day before the Borrowing Date for any LIBOR Rate Borrowing or (ii) 10:00
a.m. on the Borrowing Date for any CBFR Borrowing. Administrative Agent shall promptly
notify each Lender of any Borrowing Request.
(b) Funding. Each Lender shall remit its Commitment Percentage of each
requested Borrowing to Administrative Agents principal office in Dallas, Texas, in funds
that are available for immediate use by Administrative Agent by 2:00 p.m. on the applicable
Borrowing Date. Subject to receipt of those funds, Administrative Agent shall (unless to
its actual knowledge any of the applicable conditions precedent have not been satisfied by
First Western or waived by the requisite Lenders under Section 14.10) make those
funds available to First Western by (at First Westerns option) (i) wiring the funds
to or for the account of First Western at the direction of First Western or (ii)
depositing the funds in First Westerns account with Administrative Agent.
Amended and Restated Credit Agreement Page 19
(c) Funding Assumed. Absent contrary written notice from a Lender,
Administrative Agent may assume that each Lender has made its Commitment Percentage of the
requested Borrowing available to Administrative Agent on the applicable Borrowing Date, and
Administrative Agent may, in reliance upon such assumption (but shall not be required to),
make available to First Western a corresponding amount. If a Lender fails to make its
Commitment Percentage of any requested Borrowing available to Administrative Agent on the
applicable Borrowing Date, Administrative Agent may recover the applicable amount on demand,
(i) from that Lender together with interest, commencing on the Borrowing Date and ending on
(but excluding) the date Administrative Agent recovers the amount from that Lender, at an
annual interest rate equal to the Federal Funds Rate, or (ii) if that Lender fails to pay
its amount upon demand, then from First Western. No Lender is responsible for the failure
of any other Lender to make its Commitment Percentage of any Borrowing; however, failure of
any Lender to make its Commitment Percentage of any Borrowing does not excuse any other
Lender from making its Commitment Percentage of any Borrowing.
2.7 First Western Borrowing Requests. Each Borrowing Request constitutes a
representation and warranty by First Western that as of the Borrowing Date, all of the conditions
precedent for that Borrowing in Section 5 have been satisfied.
2.8 Reduction or Termination of First Western Commitment. Without premium or penalty,
and upon giving not less than three Business Days prior written and irrevocable notice to
Administrative Agent, First Western may terminate in whole or in part the unused portion of the
First Western Commitment; provided that: (a) each partial termination shall be in an amount of not
less than $5,000,000 or a greater integral multiple of $2,500,000; (b) the amount of the First
Western Commitment may not be reduced below the Commitment Usage under the First Western Revolving
Facility at such time; and (c) each reduction shall be allocated among the Lenders in accordance
with their respective Commitment Percentages. Promptly after receipt of such notice of termination
or reduction, Administrative Agent shall notify each Lender of the proposed cancellation or
reduction. Such termination or partial reduction of the First Western Commitment shall be
effective on the Business Day specified in First Westerns notice (which date must be at least
three Business Days after First Westerns delivery of such notice).
SECTION 3. TERMS OF PAYMENT.
3.1 Notes and Payments.
(a) Notes. The Principal Debt outstanding under the PMC Revolving Facility
shall be evidenced by the PMC Revolving Notes, one payable to each Lender in the maximum
stated principal amount of its Committed Sum under the PMC Revolving Facility as of the
Closing Date. The Principal Debt outstanding under the First Western Revolving Facility
shall be evidenced by the First Western Revolving Notes, one payable to each Lender in the
maximum stated principal amount of its Committed Sum under the First Western Revolving
Facility as of the Closing Date.
Amended and Restated Credit Agreement Page 20
(b) Payment. Each Borrower must make each payment and prepayment on the
Obligation to Administrative Agents principal office in Dallas, Texas in immediately
available funds by 1:00 p.m. on the day due; otherwise, but subject to Section 3.8,
those funds continue to accrue interest as if they were received on the next Business Day.
Administrative Agent shall promptly pay to each Lender the part of any payment or prepayment
to which that Lender is entitled under this agreement on the same day Administrative Agent
is deemed to receive the funds from such Borrower.
(c) Payment Assumed. Unless Administrative Agent has received notice from a
Borrower prior to the date on which any payment is due under this agreement, that such
Borrower will not make that payment in full, Administrative Agent may assume that such
Borrower has made the full payment due and Administrative Agent may, in reliance upon that
assumption, cause to be distributed to each Lender on that date the amount then due to each
Lender. If and to the extent any Borrower does not make the full payment due to
Administrative Agent, each Lender shall repay Administrative Agent on demand the amount
distributed to that Lender by Administrative Agent, together with interest for each day from
the date that Lender received payment from Administrative Agent until the date that Lender
repays Administrative Agent (unless such repayment is made on the same day as such
distribution), at an interest rate equal to the Federal Funds Rate.
3.2 Interest and Principal Payments.
(a) Interest. Interest on each LIBOR Rate Borrowing shall be due and payable
as it accrues on the last day of its respective Interest Period and on the Termination Date;
provided that if any Interest Period is a period greater than three months, then accrued
interest shall also be due and payable on the date three months after the commencement of
such Interest Period. Interest on each CBFR Borrowing shall be due and payable as it
accrues on the last day of each month (commencing on the first of those dates that follows
the Closing Date), and on the Termination Date.
(b) Principal. The Principal Debt under the PMC Revolving Facility and the
First Western Revolving Facility is due and payable on the Termination Date. After giving
Administrative Agent advance written notice of the intent to prepay, any Borrower may
voluntarily prepay all or any part of the Principal Debt from time to time and at any time,
in whole or in part, without premium or penalty; provided that: (i) such notice must be
received by Administrative Agent by 10:00 a.m. on (A) the third Business Day preceding the
date of prepayment of a LIBOR Rate Borrowing, and (B) one Business Day preceding the date of
prepayment of a CBFR Borrowing; (ii) each such partial prepayment must be in a minimum
amount of at least $500,000 or a greater integral multiple of $100,000 thereof (if a LIBOR
Rate Borrowing or a CBFR Borrowing); (iii) all accrued interest on the Obligation must also
be paid in full, to the date of such prepayment; and (iv) such Borrower shall pay any
related Consequential Loss within ten (10) days after demand therefor. Each notice of
prepayment shall specify the prepayment date, the facility or the subfacility hereunder
being prepaid, the Type of Borrowing(s) and amount(s) of such Borrowing(s) to be prepaid and
shall constitute a binding obligation of the applicable Borrower to make a prepayment on the
date stated therein.
Amended and Restated Credit Agreement Page 21
(c) Mandatory Prepayments. On any date of determination, if the Commitment
Usage under the PMC Revolving Facility exceeds the PMC Commitment then in effect, then PMC
shall make a mandatory prepayment of the Principal Debt under the PMC Revolving Facility in
at least the amount of any such excess, together with (A) all accrued and unpaid interest on
the principal amount so prepaid and (B) any Consequential Loss arising as a result thereof.
On any date of determination, if the Commitment Usage under the First Western Revolving
Facility exceeds the First Western Commitment then in effect, then First Western shall make
a mandatory prepayment of the Principal Debt under the First Western Revolving Facility in
at least the amount of any such excess, together with (x) all accrued and unpaid interest on
the principal amount so prepaid and (y) any Consequential Loss arising as a result thereof.
3.3 Interest Options. Except that the LIBOR Rate may not be selected when an Event of
Default or Potential Default exists, and except as otherwise provided in this agreement, Borrowings
bear interest at an annual rate equal to the lesser of (a) the CB Floating Rate plus the Applicable
Margin or the LIBOR Rate plus the Applicable Margin (in each case as designated or deemed
designated by Borrower), as the case may be and (b) the Maximum Rate. Each change in the CB
Floating Rate, LIBOR Rate or Maximum Rate is effective, without notice to any Borrower or any other
Person, upon the effective date of change. If a Borrower does not designate the Type for a
requested Borrowing, then the requested Borrowing shall be deemed to be a LIBOR Rate Borrowing with
an Interest Period of one month (unless the LIBOR Rate is unavailable because of the conditions
described in Sections 3.15 or 3.17, in which case the requested Borrowing will be
deemed a CBFR Borrowing).
3.4 Quotation of Rates. Any Borrower may call Administrative Agent before delivering
a Borrowing Request to receive an indication of the interest rates then in effect, but the
indicated rates do not bind Administrative Agent or Lenders or affect the interest rate that is
actually in effect when such Borrower makes a Borrowing Request or on the Borrowing Date.
3.5 Default Rate. All past-due Principal Debt and, unless prohibited by applicable
Government Requirements, past-due interest accruing on the Principal Debt shall, at Administrative
Agents option, bear interest on the amount thereof from time to time outstanding from the date due
(stated or by acceleration) at the Default Rate until paid, regardless of whether payment is made
before or after entry of a judgment.
3.6 Interest Recapture. If the designated interest rate applicable to any Borrowing
exceeds the Maximum Rate, the interest rate on that Borrowing is limited to the Maximum Rate, but
any subsequent reductions in the designated rate shall not reduce the interest rate thereon below
the Maximum Rate until the total amount of accrued interest equals the amount of interest that
would have accrued if that designated rate had always been in effect. If at maturity (stated or by
acceleration), or at final payment of the Notes, the total interest paid or accrued is less than
the interest that would have accrued if the designated rates had always been in effect, then, at
that time and to the extent not prohibited by applicable Governmental Requirements, each Borrower
shall pay an amount equal to the difference between (a) the lesser of the amount of interest that
would have accrued if the designated rates had always been in effect and the amount of interest
that would have accrued if the Maximum Rate had always been in effect, and (b) the amount of
interest actually paid or accrued on the Notes.
Amended and Restated Credit Agreement Page 22
3.7 Interest Calculations. Interest on all Borrowings will be calculated on the basis
of actual number of days (including the first day but excluding the last day) elapsed but computed
as if each calendar year consisted of (a) 360 days in the case of LIBOR Borrowings or CBFR
Borrowings calculated with reference to the Federal Funds Rate (unless such calculation would
result in the interest on the Borrowings exceeding the Maximum Rate in which event such interest
shall be calculated on the basis of a year of 365 or 366 days, as the case may be) and (b) 365 or
366 days, as the case may be, in the case of CBFR Borrowings calculated with reference to
Administrative Agents base rate of interest. All interest rate determinations and calculations by
Administrative Agent are conclusive and binding absent manifest error.
3.8 Maximum Rate. It is the intent of Administrative Agent, Lenders and Borrowers in
the execution and performance of the Credit Documents to remain in strict compliance with
applicable Governmental Requirements from time to time in effect, including applicable laws
limiting the amount or rate of interest. Administrative Agent, Lenders and Borrowers stipulate and
agree that none of the terms and provisions contained in the Credit Documents shall ever be
construed to create a contract to pay for the use, forbearance or detention of money with interest
at a rate or in an amount in excess of the Maximum Rate or Maximum Amount. For purposes of the
Credit Documents, interest shall include the aggregate of all charges which constitute interest
under applicable Governmental Requirements that are contracted for, charged, reserved, received or
paid under the Credit Documents. No Borrower shall ever be required to pay unearned interest and
shall never be required to pay interest at a rate or in an amount in excess of the Maximum Rate or
Maximum Amount, and the provisions of this section shall control over all other provisions of the
Credit Documents, and of any other instrument pertaining to or securing the Obligation, which may
be in actual or apparent conflict herewith. If the Obligation is prepaid, or if the maturity of
the Obligation is accelerated for any reason, or if under any contingency the effective rate or
amount of interest which would otherwise be payable under the Credit Documents would exceed the
Maximum Rate or Maximum Amount, or in the event any Lender or any holder of the Notes shall charge,
contract for, take, reserve or receive monies that are deemed to constitute interest which would,
in the absence of this provision, increase the effective rate or amount of interest payable under
the Credit Documents to a rate or amount in excess of that permitted to be charged, contracted for,
taken, reserved or received under applicable Governmental Requirements then in effect, then the
principal amount of the Obligation or the amount of interest which would otherwise be payable under
the Notes or both shall be reduced to the amount allowed under applicable Governmental Requirements
as now or hereinafter construed by the courts having jurisdiction, and all such moneys so charged,
contracted for, taken, reserved or received that are deemed to constitute interest in excess of the
Maximum Rate shall immediately be returned to or credited to the account of Borrowers upon such
determination. Administrative Agent, Lenders and Borrowers further stipulate and agree that,
without limitation of the foregoing, all calculations of the rate or amount of interest contracted
for, charged, taken, reserved or received under the Credit Documents which are made for the purpose
of determining whether such rate or amount exceeds the Maximum Rate or Maximum Amount, shall be
made to the extent not prohibited by applicable Governmental Requirements, by amortizing,
prorating, allocating and spreading during the period of the full stated term of the Notes, all
interest at any time contracted for, charged, taken, reserved or received from Borrowers or
otherwise by Lenders or any other holder of the Notes. If the Governmental Requirements of the
State of Texas are applicable for purposes of determining the
Maximum Rate or the Maximum Amount, then those terms mean the indicated
rate ceiling from time to time in effect under Chapter 303 of the Texas Finance Code, as amended.
Amended and Restated Credit Agreement Page 23
3.9 Interest Periods. When any Borrower requests any LIBOR Rate Borrowing, such
Borrower may elect the applicable interest period (each an Interest Period), which may
be, at such Borrowers option, one, three or six months, subject to the following conditions: (a)
the initial Interest Period for a LIBOR Rate Borrowing commences on the applicable Borrowing Date
or conversion date, and each subsequent Interest Period applicable to any Borrowing commences on
the day when the next preceding applicable Interest Period expires; (b) if any Interest Period for
a LIBOR Rate Borrowing begins on a day for which no numerically corresponding Business Day in the
calendar month at the end of the Interest Period exists, then the Interest Period ends on the last
Business Day of that calendar month; (c) if such Borrower is required to pay any portion of a LIBOR
Rate Borrowing before the end of its Interest Period in order to comply with the payment provisions
of the Credit Documents, such Borrower shall also pay any related Consequential Loss; (d) no
Interest Period for any portion of Principal Debt may extend beyond the scheduled repayment date
for that portion of Principal Debt; and (e) no more than four Interest Periods may be in effect at
one time.
3.10 Conversions. Subject to the dollar limits of Sections 2.1 and
2.5 and provided that no Borrower may convert to or select a new Interest Period for a
LIBOR Rate Borrowing at any time when an Event of Default exists, any Borrower may (a) convert a
LIBOR Rate Borrowing on the last day of the applicable Interest Period to a CBFR Borrowing, (b)
convert a CBFR Borrowing at any time to a LIBOR Rate Borrowing and (c) elect a new Interest Period
for a LIBOR Rate Borrowing. That election may be made by telephonic request to Administrative
Agent no later than 10:00 a.m. on the second Business Day before the conversion date or the last
day of the Interest Period, as the case may be (for conversion to a LIBOR Rate Borrowing or
election of a new Interest Period), and no later than 10:00 a.m. on the last day of the Interest
Period (for conversion to a CBFR Borrowing). Each Borrower shall provide a Conversion Notice to
Administrative Agent no later than two days after the date of the conversion or election. Absent a
Borrowers telephonic request for conversion or election of a new Interest Period or if an Event of
Default exists, then, a LIBOR Rate Borrowing shall be deemed converted to a CBFR Borrowing
effective when the applicable Interest Period expires.
3.11 Order of Application.
(a) No Event of Default. Payments and prepayments of the Obligation shall be
applied in the order and manner specified in this agreement; provided, however, if no order
is otherwise specified in this agreement and no Event of Default or Potential Default has
occurred and is continuing, payments and prepayments of the Obligation shall be applied
first to fees, second to accrued interest then due and payable on the Principal Debt, and
then to the remaining Obligation in the order and manner as any Borrower may direct.
Amended and Restated Credit Agreement Page 24
(b) Event of Default or No Direction. If an Event of Default or Potential
Default has occurred and is continuing (or if any Borrower fails to give direction as
permitted under Section 3.11(a)), any payment or prepayment (including proceeds from
the exercise of any Rights) shall be applied in the following order: (i) to all fees and
expenses for which Administrative Agent or Lenders have not been paid or reimbursed in
accordance with the Credit Documents (and if such payment or prepayment is less than all
unpaid or unreimbursed fees and expenses, then the payment or prepayment shall be paid
against unpaid and unreimbursed fees and expenses in the order of incurrence or due date);
(ii) to accrued interest on the Principal Debt; (iii) to the remaining Principal Debt in
such order as Required Lenders may elect (provided that Required Lenders will apply such
proceeds in an order that will minimize any Consequential Loss); and (iv) to the remaining
Obligation in the order and manner Required Lenders deem appropriate.
(c) Pro Rata. Each payment or prepayment shall be distributed to each Lender
in accordance with its Pro Rata Part of that payment or prepayment.
3.12 Sharing of Payments, Etc. If any Lender obtains any payment or prepayment with
respect to the Obligation (whether voluntary, involuntary, or otherwise, including, without
limitation, as a result of exercising its Rights under Section 3.13) that exceeds the part
of that payment or prepayment that it is then entitled to receive under the Credit Documents, then
that Lender shall purchase from the other Lenders participations that will cause the purchasing
Lender to share the excess payment or prepayment ratably with each other Lender. If all or any
portion of any excess payment or prepayment is subsequently recovered from the purchasing Lender,
then the purchase shall be rescinded and the purchase price restored to the extent of the recovery.
Each Borrower agrees that any Lender purchasing a participation from another Lender under this
section may, to the fullest extent permitted by applicable Governmental Requirements, exercise all
of its Rights of payment (including the Right of offset) with respect to that participation as
fully as if that Lender were the direct creditor of such Borrower in the amount of that
participation.
3.13 Offset. If an Event of Default exists, to the extent not prohibited by
applicable Governmental Requirements, each Lender may exercise (for the benefit of all Lenders in
accordance with Section 3.12) the Rights of offset and bankers lien against each and every
account and other property, or any interest therein, that any Company may now or hereafter have
with, or which is now or hereafter in the possession of, that Lender to the extent of the full
amount of the Obligation owed (directly or participated) to it, provided, however, no such right of
offset or bankers lien may be exercised against any account of any Special Purpose Entity.
3.14 Booking Borrowings. To the extent permitted by applicable Governmental
Requirements, any Lender may make, carry, or transfer its Borrowings at, to, or for the account of
any of its branch offices or the office or branch of any of its Affiliates. However, no Affiliate
or branch is entitled to receive any greater payment under Section 3.16 than the transferor
Lender would have been entitled to receive with respect to those Borrowings, and a transfer may not
be made if, as a direct result of it, Section 3.15 or 3.17 would apply to any of
the Obligation. If any of the conditions of Sections 3.16 or 3.17 ever apply to a
Lender, that Lender shall, to the extent possible, carry or transfer its Borrowings at, to, or for
the account of any of its branch offices or the office or branch of any of its Affiliates so long
as the transfer is consistent with the other provisions of this section, does not create any burden
or adverse circumstance for that Lender that would not otherwise exist, and eliminates or
ameliorates the conditions of Sections 3.16 or 3.17, as applicable.
Amended and Restated Credit Agreement Page 25
3.15 Basis Unavailable or Inadequate for LIBOR Rate. If on or before any date when a
LIBOR Rate is to be determined for a Borrowing, Administrative Agent or any Lender determines (and
Required Lenders agree with that determination) that the basis for determining the applicable rate
is not available or that the resulting rate does not accurately reflect the cost to Lenders of
making or converting Borrowings at that rate for the applicable Interest Period, then
Administrative Agent shall promptly notify Borrowers and Lenders of that determination (which is
conclusive and binding on each Borrower absent manifest error), and the applicable Borrowing shall
bear interest at the sum of the CB Floating Rate plus the Applicable Margin. Until Administrative
Agent notifies Borrowers that those circumstances giving rise to such notice no longer exist,
Lenders commitments under this agreement to make, or to convert to, LIBOR Rate Borrowings, as the
case may be, shall be suspended.
3.16 Additional Costs. Each Lender severally and not jointly agrees to notify
Administrative Agent, the other Lenders, and Borrowers within 180 days after it has actual
knowledge that any circumstances exist that would give rise to any payment obligation by Borrowers
under clauses (a) through (c) below. Although no Lender shall have any liability
to Administrative Agent, any other Lender, or any Company for its failure to give that notice, no
Borrower is obligated to pay any amounts under those clauses that arise, accrue or are imposed more
than 180 days before that notice to the extent that notice is applicable to those amounts. To
demand payment under this section, any such Lender must generally be making similar demand for
similar additional costs under credit agreements to which it is party that contain similar
provisions to this section.
(a) Reserves. With respect to any LIBOR Rate Borrowing (i) if any change in
any present Governmental Requirement, any change in the interpretation or application of any
present Governmental Requirement, or any future Governmental Requirement imposes, modifies
or deems applicable (or if compliance by any Lender with any requirement of any Governmental
Authority results in) any requirement that any reserves (including, without limitation, any
marginal, emergency, supplemental, or special reserves) be maintained (other than any
reserve included in the Reserve Requirement) and if (ii) those reserves reduce any sums
receivable by that Lender under this agreement or increase the costs incurred by Lender in
advancing or maintaining any portion of any LIBOR Rate Borrowing, then (iii) that Lender
(through Administrative Agent) shall deliver to Borrowers a certificate setting forth in
reasonable detail the calculation of the amount necessary to compensate it for its reduction
or increase (which certificate is conclusive and binding absent manifest error), and (iv)
Borrowers shall pay that amount to that Lender within five Business Days after demand. The
provisions of and undertakings and indemnifications in this clause (a) survive the
satisfaction and payment of the Obligation and termination of this agreement.
Amended and Restated Credit Agreement Page 26
(b) Capital Adequacy. With respect to any Borrowing, if any change in any
present Governmental Requirement, any change in the interpretation or application of any
present Governmental Requirement, or any future Governmental Requirement regarding capital
adequacy, or if compliance by Administrative Agent or any Lender with any request, directive
or requirement imposed in the future by any Governmental Authority regarding capital
adequacy, or if any change in its written policies or in the risk category of this
transaction, in any of the foregoing events or circumstances, reduces the rate of
return on its capital as a consequence of its obligations under this agreement to a
level below that which it otherwise could have achieved (taking into consideration its
policies with respect to capital adequacy) by an amount deemed by it to be material (and it
may, in determining the amount, utilize reasonable assumptions and allocations of costs and
expenses and use any reasonable averaging or attribution method), then (unless the effect is
already reflected in the rate of interest then applicable under this agreement)
Administrative Agent or that Lender (through Administrative Agent) shall notify Borrowers
and deliver to Borrowers a certificate setting forth in reasonable detail the calculation of
the amount necessary to compensate it (which certificate is conclusive and binding absent
manifest error), and Borrowers shall pay that amount to Administrative Agent or that Lender
within five Business Days after demand. The provisions of and undertakings and
indemnification in this clause (b) shall survive the satisfaction and payment of the
Obligation and termination of this agreement.
(c) Taxes. Any Taxes payable by Administrative Agent or any Lender or ruled by
a Governmental Authority to be payable by Administrative Agent or any Lender in respect of
this agreement or any other Credit Document shall, if permitted by applicable Governmental
Requirements, be paid by Borrowers, together with interest and penalties, if any, except for
Taxes payable on or measured by the overall net income of Administrative Agent or that
Lender (or any other Person with whom Administrative Agent or that Lender files a
consolidated, combined, unitary, or similar Tax return) and except for interest and
penalties incurred as a result of the gross negligence or willful misconduct of
Administrative Agent or that Lender. Administrative Agent or that Lender (through
Administrative Agent) shall notify Borrowers and deliver to Borrowers a certificate setting
forth in reasonable detail the calculation of the amount of Taxes payable, which certificate
is conclusive and binding (absent manifest error), and Borrowers shall pay that amount to
Administrative Agent for its account or the account of that Lender, as the case may be,
within ten Business Days after demand. If Administrative Agent or that Lender subsequently
receives a refund of the Taxes paid to it by Borrowers, then the recipient shall promptly
pay the refund to Borrowers.
3.17 Change in Governmental Requirements. If any Governmental Requirement makes it
unlawful for any Lender to make or maintain LIBOR Rate Borrowings, then that Lender shall promptly
notify Borrowers and Administrative Agent, and (a) as to undisbursed funds, that requested
Borrowing shall be made as a CBFR Borrowing and (b) as to any outstanding Borrowing (i) if
maintaining the Borrowing until the last day of the applicable Interest Period is unlawful, the
Borrowing shall be converted to a CBFR Borrowing as of the date of notice, in which event Borrowers
will be required to pay any related Consequential Loss or (ii) if not prohibited by applicable
Governmental Requirements, the Borrowing shall be converted to a CBFR Borrowing as of the last day
of the applicable Interest Period or (iii) if any conversion will not resolve the unlawfulness,
Borrowers shall promptly prepay the Borrowing, without penalty but with related Consequential Loss.
Amended and Restated Credit Agreement Page 27
3.18 Consequential Loss. Each Borrower shall indemnify each Lender against, and pay
to it upon demand, any Consequential Loss of that Lender. When any Lender demands that any
Borrower pay any Consequential Loss, that Lender shall deliver to such Borrower and Administrative
Agent a certificate setting forth in reasonable detail the basis for imposing
Consequential Loss and the calculation of the amount, which calculation is conclusive and
binding absent manifest error. The provisions of and undertakings and indemnification in this
Section survive the satisfaction and payment of the Obligation and termination of this agreement.
3.19 Foreign Lenders, Participants, and Purchasers. Each Lender, Participant (by
accepting a participation interest under this agreement), and Purchaser (by executing an
Assignment) that is not organized under the Governmental Requirements of the United States of
America or one of its states (a) represents to Administrative Agent and Borrowers that (i) no Taxes
are required to be withheld by Administrative Agent or any Borrower with respect to any payments to
be made to it in respect of the Obligation and (ii) it has furnished to Administrative Agent and
Borrowers two duly completed copies of either U.S. Internal Revenue Service Form 4224, Form 1001,
Form W-8, or any other form acceptable to Administrative Agent and Borrowers that entitles it to a
complete exemption from U.S. federal withholding Tax on all interest or fee payments under the
Credit Documents, and (b) covenants to (i) provide Administrative Agent and Borrowers a new Form
4224, Form 1001, Form W-8, or other form acceptable to Administrative Agent and Borrowers upon the
expiration or obsolescence according to applicable Governmental Requirements of any previously
delivered form, duly executed and completed by it, entitling it to a complete exemption from U.S.
federal withholding Tax on all interest and fee payments under the Credit Documents, and (ii)
comply from time to time with all applicable Governmental Requirements with regard to the
withholding Tax exemption. If any of the foregoing is not true at any time or the applicable forms
are not provided, then Borrowers and Administrative Agent (without duplication) may deduct and
withhold from interest and fee payments under the Credit Documents any Tax at the maximum rate
under the Code or other applicable Governmental Requirement, and amounts so deducted and withheld
shall be treated as paid to that Lender, Participant, or Purchaser, as the case may be, for all
purposes under the Credit Documents.
SECTION 4. FEES.
4.1 Treatment of Fees. Except as otherwise provided by applicable Governmental
Requirements, the fees described in this Section 4 (a) do not constitute compensation for
the use, detention, or forbearance of money, (b) are in addition to, and not in lieu of, interest
and expenses otherwise described in this agreement, (c) shall be payable in accordance with
Section 3, (d) shall be non refundable, (e) shall, to the fullest extent permitted by
applicable Governmental Requirements, bear interest, if not paid when due, at the Default Rate, and
(f) shall be calculated on the basis of actual number of days (including the first day but
excluding the last day) elapsed, but computed as if each calendar year consisted of 360 days,
unless such computation would result in interest being computed in excess of the Maximum Rate in
which event such computation shall be made on the basis of a year of 365 or, 366 days, as the case
may be.
4.2 Fees of Administrative Agent. Each Borrower shall pay to Administrative Agent,
for its own account, fees in such amounts and upon such payment terms as may be separately agreed
upon by Administrative Agent and such Borrower in writing.
Amended and Restated Credit Agreement Page 28
4.3 Upfront Fees. On the Closing Date, each Borrower shall pay to each initial Lender
upfront fees in amounts separately agreed to between such Borrower and each such Lender.
4.4 Commitment Fee. Following the Closing Date, PMC shall pay to Administrative
Agent, for the ratable account of Lenders, a commitment fee, payable in installments in arrears, on
each March 31, June 30, September 30, and December 31 and on the Termination Date, commencing
December 31, 2010. Each installment shall be in an amount equal to (a) prior to the First
Amendment Effective Date, 0.375%, and (b) after the First Amendment Effective Date, 0.25%
multiplied by the amount by which (a) the average daily Commitments (which amount, for purposes of
calculating the commitment fee hereunder, shall not exceed the Total Commitment Amount on such
date) exceeds (b) the average daily Commitment Usage, in each case during the period from and
including the last payment date to and excluding the payment date for such installment, provided
that each such installment shall be calculated in accordance with Section 4.1(f). Solely
for the purposes of this Section 4.4, ratable shall mean, for any period of calculation,
with respect to any Lender, that proportion which (x) the average daily unused Committed Sum of
such Lender during such period bears to (y) the amount of the average daily unused Commitments
(which amount shall not exceed the Total Commitment Amount on such date) during such period.
SECTION 5. CONDITIONS PRECEDENT.
5.1 Initial Advances. The obligation of Lenders to make the initial advances under
this agreement is subject to the condition precedent that, on or before the date of such advance,
Administrative Agent and Lenders have received, there shall have been performed and there shall
exist, the documents, actions and other matters set forth below, each in form, scope and substance,
and (as applicable) dated as of a date, satisfactory to Administrative Agent and Lenders:
(a) Credit Agreement. This agreement duly executed by Borrowers,
Administrative Agent and each initial Lender;
(b) Revolving Notes. The Revolving Notes duly executed and delivered by
Borrowers;
(c) Guaranty. The Guaranty duly executed and delivered by PMC;
(d) PMC Resolutions. Resolutions of PMC approving the execution, delivery and
performance of this agreement, the PMC Revolving Notes and the other Credit Documents to
which it is a party and the transactions contemplated herein and therein, duly adopted by
PMCs Board of Trust Managers and accompanied by a certificate of the Secretary or Assistant
Secretary of PMC stating that the resolutions are true and correct, have not been altered or
repealed and are in full force and effect;
(e) First Western Resolutions. Resolutions of First Western approving the
execution, delivery and performance of this agreement, the First Western Revolving Note and
the other Credit Documents to which it is a party and the transactions contemplated herein
and therein, duly adopted by First Westerns Board of Directors and accompanied
by a certificate of the Secretary or Assistant Secretary of First Western stating that
the resolutions are true and correct, have not been altered or repealed and are in full
force and effect;
Amended and Restated Credit Agreement Page 29
(f) PMC Incumbency Certificates. Signed certificates of the Secretary or
Assistant Secretary of PMC certifying the names of the officers of PMC authorized to sign
each of the Credit Documents to which it is a party and the other documents or certificates
to be delivered pursuant to the Credit Documents by PMC, together with the true signatures
of each such officer. Administrative Agent and Lenders may conclusively rely on each such
certificate until they receive, and have had a reasonable opportunity to act upon, a further
certificate of the Secretary or Assistant Secretary of PMC canceling or amending the prior
certificate and submitting the signatures of the officers named in the further certificate;
(g) First Western Incumbency Certificates. Signed certificates of the
Secretary or Assistant Secretary of First Western certifying the names of the officers of
First Western authorized to sign each of the Credit Documents to which it is a party and the
other documents or certificates to be delivered pursuant to the Credit Documents by First
Western, together with the true signatures of each such officer. Administrative Agent and
Lenders may conclusively rely on each such certificate until they receive, and have had a
reasonable opportunity to act upon, a further certificate of the Secretary or Assistant
Secretary of First Western canceling or amending the prior certificate and submitting the
signatures of the officers named in the further certificate;
(h) Bring Down Certificates. A bring down certificate of the Secretary or
Assistant Secretary of each Borrower certifying that the declaration of trust, articles of
incorporation, and bylaws, as applicable of such Borrower have not been modified in any
respect from the copies previously provided to the Administrative Agent and the Lenders in
connection with the Existing Credit Agreement;
(i) Payments to Administrative Agent. The payment to Administrative Agent of:
(i) all fees to be received by Administrative Agent pursuant to this agreement or any other
Credit Document, and (ii) all third-party costs incurred in connection with this agreement,
including all reasonable attorneys fees, costs and out-of-pocket expenses of Administrative
Agents counsel incurred or estimated to have been incurred through the Closing Date in
connection with the preparation, execution and delivery of the Credit Documents and the
consummation of the transactions contemplated thereby;
(j) Opinion of Counsel. A favorable opinion addressed to Administrative Agent
and Lenders, in form and substance satisfactory to Administrative Agent, from outside legal
counsel to Borrowers; and
(k) Additional Information. Such other documents, instruments, reports,
opinions and information as reasonably required by Administrative Agent, any Lender and
their respective counsel.
Amended and Restated Credit Agreement Page 30
5.2 All Borrowings. The obligation of Lenders to extend Borrowings under this
agreement (including the initial advances) is subject to the following conditions precedent:
(a) No Default or Potential Default. As of the date of the making of the
Borrowing, there exists no Event of Default or Potential Default;
(b) Compliance with Credit Agreement. Each Company has performed and complied
with all agreements and conditions contained in this agreement and each other Credit
Document that are required to be performed or complied with by it before or at the date of
the Borrowing;
(c) No Material Adverse Event. As of the date of making the Borrowing, no
Material Adverse Event has occurred and is continuing;
(d) Representations and Warranties. The representations and warranties
contained in Section 6 and the other Credit Documents are true in all respects on
the date of, and after giving effect to, the Borrowing, with the same force and effect as
though made on and as of that date; and
(e) Borrowing Request. Administrative Agent has timely received from a
Borrower a properly completed Borrowing Request, executed by a Responsible Officer of such
Borrower.
SECTION 6. REPRESENTATIONS AND WARRANTIES. Each Borrower represents and warrants to Administrative
Agent and Lenders as follows:
6.1 Purpose and Regulation U.
(a) Subject to the other provisions in the Credit Documents, including, without
limitation, clause (b) below, the proceeds of all Borrowings under the PMC Revolving
Facility will be used either (i) to finance PMCs Mortgage Loan origination, (ii) to finance
PMCs Commercial Loan origination, or (iii) for general corporate purposes. Subject to the
other provisions in the Credit Documents, including, without limitation, clause (b)
below, the proceeds of all Borrowings under the First Western Revolving Facility will be
used either (x) to finance First Westerns Commercial Loan origination under the 7(a) Loan
Program of the U.S. Small Business Administration or (y) for general corporate purposes.
(b) The proceeds of the PMC Revolving Facility will be used by PMC solely for the
purposes specified in Section 6.1(a). The proceeds of the First Western Revolving
Facility will be used by First Western solely for the purposes specified in Section
6.1(a). None of such proceeds will be used for the purpose of purchasing or carrying
any margin stock as defined in Regulation U, or for the purpose of reducing or retiring
any indebtedness which was originally incurred to purchase or carry a margin stock or for
any other purpose which might constitute this transaction a purpose credit within the
meaning of such Regulation U. No Company is engaged in the business of extending credit for
the purpose of purchasing or carrying margin stocks. No Company, nor any Person acting on
behalf of any Company, has taken or will take any action that might
cause the Notes or any of the other Credit Documents, including this Credit Agreement,
to violate Regulation U or any other regulations of the Board of Governors of the Federal
Reserve System or to violate Section 7 of the Securities Exchange Act of 1934, as
amended, or any rule or regulation thereunder, in each case as now in effect or as the same
may hereinafter be in effect.
Amended and Restated Credit Agreement Page 31
(c) No portion of any advance or loan made hereunder shall be used directly or
indirectly to purchase ineligible securities, as defined by applicable regulations of the
Federal Reserve Board, underwritten by any affiliate of JPMorgan Chase & Co. or any
affiliate of any other Lender during the underwriting period and for 30 days thereafter.
6.2 Corporate Existence, Good Standing, Authority and Locations. PMC is a real estate
investment trust duly organized, validly existing and in good standing under the laws of the State
of Texas. First Western is a corporation duly incorporated, validly existing and in good standing
under the laws of the State of Florida. Except where the failure to qualify would not result in a
Material Adverse Event, each Borrower is duly qualified to transact business and is in good
standing in each jurisdiction where the nature and extent of its business and properties require
due qualification and good standing (and each of such jurisdictions is identified in Schedule
6.3). Each Borrower possesses all requisite authority and power to conduct its business as is
now being conducted and as proposed to be conducted (including under the Credit Documents) and to
own and operate its assets as now owned and operated and as proposed to be owned and operated
(including under the Credit Documents). Each Borrowers chief executive office and other principal
offices are described on Schedule 6.3. The present location of each Borrowers books and
records concerning accounts and accounts receivable is at its chief executive office.
6.3 Subsidiaries and Names. Schedule 6.3 describes (a) each Company, (b)
every name or trade name used by each Company during the four-month period before the date of this
agreement (or during the period such Company has been a Subsidiary, if shorter) and (c) every
change of each Companys name during the four month period before the date of this agreement. All
of the outstanding shares of beneficial interests, capital stock or similar voting interests of
each Company are (i) duly authorized, validly issued, fully paid and nonassessable, (ii) owned of
record and beneficially as described in Schedule 6.3, free and clear of any Liens, and
(iii) not subject to any warrant, option or other acquisition Right of any Person or subject to any
voting, ownership or transfer restriction except (1) restrictions imposed by securities laws and
general corporate laws and (2) restrictions expressly noted in the certificates evidencing such
shares.
6.4 Authorization and Contravention. The execution and delivery by each Borrower of
each Credit Document to which it is a party and the performance by it of its obligations under
those Credit Documents (a) are within its trust or corporate power, (b) have been duly authorized
by all necessary trust or corporate action, (c) require no consent of, action by, or filing with,
any Governmental Authority (except any action or filing that has been taken or made or consent that
has been received, and is completed and in final form and full force and effect, on or before the
Closing Date), (d) do not violate any provision of its Organizational Documents, (e) do not violate
any provision of any Governmental Requirement applicable to it or result in any breach of, or
default under, any material agreement of the Companies, or (f) result in, or requires the
imposition of, any Liens on any property of any Company, other than in favor of Administrative
Agent for Lenders.
Amended and Restated Credit Agreement Page 32
6.5 Binding Effect. Upon execution by each Borrower of each Credit Document to which
it is a party, each such Credit Document will constitute a legal and binding obligation of such
Borrower, enforceable against such Borrower in accordance with that Credit Documents terms, except
as that enforceability may be limited by Debtor Relief Laws and general principles of equity.
6.6 Financials. The Current Financials were prepared in accordance with GAAP and
present fairly, in all material respects, the Companies consolidated (if applicable) financial
condition, results of operations and cash flows as of, and for the portion of the fiscal year
ending on, their dates (subject only to normal year-end adjustments for interim statements).
Except for transactions directly related to, or specifically contemplated or expressly permitted
by, the Credit Documents, no material adverse changes have occurred in the Companies consolidated
(if applicable) financial condition from that shown in the Current Financials.
6.7 Solvency. On each Borrowing Date, each Borrower is, and after giving effect to
the requested Borrowing will be, Solvent.
6.8 Litigation.
(a) Except as shown on Schedule 6.8, no Company is subject to, or aware of the
threat of, any Litigation involving any Company, or any of their respective properties,
which if adversely determined against any of them, reasonably could be expected to result in
a Material Adverse Event, and
(b) No outstanding and unpaid judgments against any Company exist that reasonably could
be expected to result in a Material Adverse Event.
6.9 Taxes.
(a) Except where the non-compliance of any of the following reasonably could not be
expected to result in a Material Adverse Event, (i) all returns, reports and other
information of each Company required to be filed in respect to a present or future liability
for any Taxes have been prepared in compliance with all requisite Governmental Requirements,
and as so prepared, have been properly filed (or extensions have been granted) and (ii) all
Taxes imposed upon each Company that are due and payable have been timely and fully paid
except as are being contested as permitted by Section 7.5.
(b) PMC qualifies as a real estate investment trust for all purposes under the Code.
Amended and Restated Credit Agreement Page 33
6.10 Environmental Matters.
(a) No Company has received notice from any Governmental Authority that it has any
actual or potential Environmental Liability, and no Company has knowledge that
it has any Environmental Liability, which actual or potential Environmental Liability
in either case reasonably could be expected to constitute a Material Adverse Event.
(b) No Company has received notice from any Governmental Authority that any Real
Property is affected by, and no Company has knowledge that any Real Property is affected by,
any Release of any Hazardous Substance which reasonably could be expected to constitute a
Material Adverse Event.
(c) No Company knows of any environmental conditions or circumstances adversely
affecting any material portion of the collateral securing any of the Commercial Loans or
Mortgage Loans. The Companies have taken all steps required under applicable Governmental
Requirements to determine that all of the Projects securing the Mortgage Loans are in
compliance with all applicable Governmental Requirements.
6.11 Employee Plans. Except where not a Material Adverse Event (a) no Employee Plan
subject to ERISA has incurred an accumulated funding deficiency (as defined in Section 302 of
ERISA or Section 512 of the Code), (b) neither any Company nor any ERISA Affiliate has incurred
liability (except for liabilities for premiums that have been paid or that are not past due) under
ERISA to the PBGC in connection with any Employee Plan, (c) neither any Company nor any ERISA
Affiliate has withdrawn in whole or in part from participation in a Multiemployer Plan in a manner
that has given rise to a withdrawal liability under Title IV of ERISA, (d) neither any Company nor
any ERISA Affiliate has engaged in any prohibited transaction (as defined in Section 406 of ERISA
or Section 4975 of the Code), (e) no reportable event (as defined in Section 4043 of ERISA) has
occurred excluding events for which the notice requirement is waived under applicable PBGC
regulations, (f) neither any Company nor any ERISA Affiliate has any liability, or is subject to
any Lien, under ERISA or the Code to or on account of any Employee Plan, (g) each Employee Plan
subject to ERISA and the Code complies in all material respects, both in form and operation, with
ERISA and the Code and (h) no Multiemployer Plan subject to the Code is in reorganization within
the meaning of Section 418 of the Code.
6.12 Properties; Liens. Each Company has good and marketable title to all its
property reflected on the Current Financials except for property that is obsolete or that has been
disposed of in the ordinary course of business between the date of the Current Financials and the
date of this agreement or, after the date of this agreement, as permitted by Section 8.10.
No Lien exists on any property of any Company except Permitted Liens. Except for the Credit
Documents, no Company is party or subject to any agreement, instrument or order which in any way
restricts any Companys ability to allow Liens to exist upon any of its assets.
6.13 Government Regulations.
(a) No Company is subject to regulation under the Investment Company Act of 1940, as
amended, or the Public Utility Holding Company Act of 1935, as amended.
(b) Each of the Companies has complied with all applicable Governmental Requirements of
any Governmental Authority having jurisdiction over the conduct of their respective
businesses or the ownership of their respective property.
Amended and Restated Credit Agreement Page 34
6.14 Transactions with Affiliates. Except for transactions with other Companies as
permitted by Section 8.5, no Company is a party to a transaction (other than of an
inconsequential nature) with any of its Affiliates.
6.15 Debt. No Company has any Debt except Permitted Debt.
6.16 Leases. Except where it could not reasonably be expected to result in a Material
Adverse Event, (a) each Company enjoys peaceful and undisturbed possession under all leases
necessary or desirable for the operation of its properties and assets and (b) all material leases
under which any Company is a lessee are in full force and effect.
6.17 Labor Matters. Except where it could not reasonably be expected to result in a
Material Adverse Event (a) no actual or threatened strikes, labor disputes, slow downs, walkouts,
work stoppages or other concerted interruptions of operations that involve any employees employed
at any time in connection with the business activities or operations at any Real Property exist,
(b) hours worked by and payment made to the employees of any Company have not been in violation of
the Fair Labor Standards Act or any other applicable Governmental Requirements pertaining to labor
matters, (c) all payments due from any Company for employee health and welfare insurance,
including, without limitation, workers compensation insurance, have been paid or accrued as a
liability on its books and (d) the business activities and operations of each Company are in
compliance with OSHA and other applicable health and safety Governmental Requirements.
6.18 Intellectual Property. Except where it could not reasonably be expected to
result in a Material Adverse Event, (a) each Company owns or has the right to use all material
licenses, patents, patent applications, copyrights, service marks, trademarks, trademark
applications, trade names, trade secrets and other intellectual property rights necessary or
desirable to continue to conduct its businesses as presently conducted by it and proposed to be
conducted by it immediately after the date of this agreement, (b) each Company is conducting its
business without infringement or claim of infringement of any license, patent, copyright, service
mark, trademark, trade name, trade secret or other intellectual property right of others and (c) no
infringement or claim of infringement by others of any material license, patent, copyright, service
mark, trademark, trade name, trade secret or other intellectual property of any Company exists.
6.19 Insurance. Each Company maintains the insurance required by Section 7.9.
6.20 Full Disclosure. All information furnished to Administrative Agent or Lenders by
or on behalf of any Company in connection with the Credit Documents was, and all information
furnished to Administrative Agent or Lenders in the future by or on behalf of any Company will be,
in each case, when so furnished, true, complete and accurate in all material respects or where
estimates or projections were or will be therein made and so designated, based on good faith,
reasonable estimates or projections on the date the information is stated or certified.
Amended and Restated Credit Agreement Page 35
SECTION 7. AFFIRMATIVE COVENANTS.
7.1 Certain Items Furnished. Each Borrower shall furnish the following to
Administrative Agent (with sufficient copies for each Lender):
(a) Annual Deliveries.
(i) Audited. Promptly after preparation but no later than 90 days
after the last day of each fiscal year of PMC, audited Financials showing the
Companies consolidated financial condition and results of operations as of, and for
the year ended on, that last day, accompanied by the opinion, without qualification,
of a nationally recognized firm of independent certified public accountants
acceptable to Required Lenders, based on an audit using generally accepted auditing
standards, that the consolidated portion of those Financials were prepared in
accordance with GAAP and present fairly, in all material respects, the Companies
consolidated financial condition and results of operations,
(ii) Consolidating. Promptly after preparation but no later than 90
days after the last day of each fiscal year of PMC, Financials showing the
Companies consolidating financial condition and results of operations as of, and
for the year ended on, that last day, accompanied by a certificate of a Responsible
Officer of PMC that such Financials were prepared in all material respects
consistent with the consolidated financial statements prepared in accordance with
GAAP and present fairly, in all material respects, the Companies consolidating
financial condition and results of operations, and
(iii) Compliance Certificate. Promptly after preparation but no later
than 90 days after the last day of each fiscal year of PMC, with respect to the
period covered by such Financials required in subparagraph (a)(i) preceding, a duly
completed and executed Compliance Certificate.
(b) Quarterly Financials, Etc. Promptly after preparation but no later than 60
days after the last day of each fiscal quarter of PMC, Financials showing the Companies
consolidated financial condition and results of operations for that fiscal quarter and for
the period from the beginning of the current fiscal year to the last day of that fiscal
quarter, accompanied by a Compliance Certificate with respect to the period covered by such
Financials.
(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 PMC, an accurate and
complete copy of PMCs Form 10-Q as filed with the Securities and Exchange Commission, (ii)
within 90 days after the end of each fiscal year of PMC, an accurate and complete copy of
PMCs 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 PMC with
any securities exchange, the Securities and Exchange Commission or any other similar
Governmental Authority.
Amended and Restated Credit Agreement Page 36
(d) Annual Managed Loan Reports. Promptly after preparation, but no later than
November 15 of each year, a schedule as of September 30 of such year of all Mortgage Loans
(other than Mortgage Loans owned by a Special Purpose Entity and the sold government
guaranteed portion of Mortgage Loans, which shall be delivered in a separate listing), each
such report to be in form and scope acceptable to Administrative Agent, including, without
limitation, setting forth information identifying (i) all Mortgage Loans with respect to
which a default has occurred as to the payment of any installment of principal or interest
or other monetary default has occurred under any Mortgage Loan Document related thereto and
such default has not been cured for more than 30 days, (ii) Mortgage Loans in Liquidation,
(iii) Mortgage Loans in Litigation, (iv) any other Non-Performing Loans, (v) Renegotiated
Loans, (vi) Construction Loans, and (vii) Segmented Loans.
(e) Annual Financial Projections. Promptly after preparation but no later than
45 days after the last day of each fiscal year of PMC, annual financial projections for the
Companies prepared by PMC, in form and substance reasonably acceptable to Administrative
Agent, setting forth managements projections for the next succeeding fiscal year.
(f) Employee Plans. As soon as possible and within 20 days after PMC or any
other Company knows that a Reportable Event has occurred, or that the PBGC has instituted or
will institute proceedings under ERISA to terminate that Employee Plan, deliver a
certificate of a Responsible Officer of PMC setting forth details as to that Reportable
Event and the action which any Borrower or an ERISA Affiliate, as the case may be, proposes
to take with respect to it, together with a copy of any notice of that Reportable Event
which may be required to be filed with the PBGC, or any notice delivered by the PBGC
evidencing its intent to institute those proceedings or any notice to the PBGC that the
Employee Plan is to be terminated, as the case may be. For all purposes of this section,
each Borrower is deemed to have all knowledge of all facts attributable to the plan
administrator under ERISA.
(g) Other Notices. Promptly after either Borrower knows or receives any
notification thereof (whichever shall first occur), notice of (a) the existence and status
of any Litigation or Environmental Liability that if determined adversely to any Company,
could reasonably be expected to result in a Material Adverse Event, (b) any material
Litigation that questions the validity of any Lien which secures or purports or is intended
to secure any Mortgage Loan Document relating to any Mortgage Loan, any Lien which secures
or purports or is intended to secure any Mortgage Loan or any Project Document relating to
any Mortgage Loan, (c) any change in any fact or circumstance (other than of an
inconsequential nature) represented or warranted by any Company in any Credit Document, (d)
any challenge by the Internal Revenue Service with respect to PMCs status as a REIT, (e) an
Event of Default, Potential Default or Material Adverse Event, specifying the nature thereof
and what action the Companies have taken, are taking and propose to take and (f) any notice
of a default, event of default or potential default from any other creditor of the
Companies, with a copy thereof immediately delivered to Administrative Agent, together with
an explanation from PMC, in detail satisfactory to Administrative Agent, regarding the
notice and effect of such notice.
Amended and Restated Credit Agreement Page 37
(h) First Western Annual Financials. (i) To the extent required to be prepared
by any Governmental Authority, promptly after preparation but no later than 90 days after
the last day of each fiscal year of First Western, audited Financials showing First
Westerns consolidated financial condition and results of operations as of, and for the year
ended on, that last day, accompanied by the opinion, without qualification, of a nationally
recognized firm of independent certified public accountants acceptable to Required Lenders,
based on an audit using generally accepted auditing standards, that the consolidated portion
of those Financials were prepared in accordance with GAAP and present fairly, in all
material respects, First Westerns consolidated financial condition and results of
operations or (ii) otherwise, promptly after preparation but no later than 90 days after the
last day of each fiscal year of First Western, Financials showing First Westerns
consolidated financial condition and results of operations as of, and for the year ended on,
that last day.
(i) Other Information. Promptly when reasonably requested by Administrative
Agent or any Lender, such additional reasonable information (not otherwise required to be
furnished under this agreement) regarding (a) any Companys business affairs, assets,
liabilities, results of operation and financial condition, (b) any Mortgage Loan, or (c) any
Mortgage Loan Document, any Project Document or any Project which secures a Mortgage Loan,
if any, as Administrative Agent or any Lender may reasonably request (all in form and
substance satisfactory to Administrative Agent or that Lender).
7.2 Use of Credit. Each Borrower shall use the proceeds of Borrowings only for the
purposes represented in this agreement.
7.3 Books and Records. Each Company shall maintain books, records and accounts
necessary to prepare Financials in accordance with GAAP.
7.4 Inspections. Upon reasonable request and advance notice (but during the pendency
of an Event of Default, no advance notice is required), each Company shall allow Administrative
Agent or any Lender (or their respective Representatives) to inspect any of that Companys
properties, to review reports, files and other records and to make and take away copies, to conduct
tests or investigations and to discuss any of its affairs, conditions and finances with its other
creditors, directors, officers, employees, outside accountants or representatives from time to
time, during reasonable business hours (but during the pendency of an Event of Default, at any
time). Without limiting the foregoing, the Companies shall allow Administrative Agent to perform
field examinations to test such systems and controls of the Companies as it deems appropriate.
Each Borrower shall promptly reimburse Administrative Agent and Lenders for the reasonable expenses
of such inspections and field examinations.
7.5 Taxes. Each Company shall promptly pay when due any and all Taxes, except Taxes
that are being contested in good faith by lawful proceedings diligently conducted, against which
reserve or other provision required by GAAP has been made and in respect of which levy and
execution of any Lien sufficient to be enforced has been and continues to be stayed.
Amended and Restated Credit Agreement Page 38
7.6 Payment of Obligation. Each Company shall promptly pay (or renew and extend) all
of its obligations as they become due (unless the obligations, other than the Obligation or any
part thereof, are being contested in good faith by appropriate proceedings).
7.7 Expenses. Within ten Business Days after demand accompanied by an invoice
describing the costs, fees and expenses in reasonable detail, each Borrower shall pay (a) all
costs, fees and expenses paid or incurred by or on behalf of Administrative Agent incident to any
Credit Document (including, without limitation, the reasonable fees and expenses of Administrative
Agents counsel in connection with the negotiation, preparation, delivery and execution of the
Credit Documents and any related amendment, waiver or consent) and (b) all reasonable costs and
expenses incurred by Administrative Agent in connection with the enforcement of the obligations of
any Company under the Credit Documents or the exercise of any Rights under the Credit Documents
(including, without limitation, reasonable allocated costs of in-house counsel, other reasonable
attorneys fees and court costs), all of which are part of the Obligation, bearing interest (if not
paid within ten Business Days after demand accompanied by an invoice describing the costs, fees and
expenses in reasonable detail) on the portion thereof from time to time unpaid at the Default Rate
until paid.
7.8 Maintenance of Existence, Assets and Business. Each Company shall (a) maintain
its trust, corporate or partnership (as applicable) existence and good standing in its state of
incorporation or formation (as applicable) and (b) except where the failure to perform any of the
following could not reasonably be expected to result in a Material Adverse Event (i) maintain its
authority to transact business and good standing in all other states, (ii) maintain all licenses,
permits and franchises necessary or desirable for its business and (iii) keep all of its assets
that are useful in and necessary to its business in good working order and condition (ordinary wear
and tear excepted) and make all necessary repairs and replacements.
7.9 Insurance. Each Company shall, at its cost and expense, maintain with financially
sound, responsible and reputable insurance companies or associations, or as to workers
compensation or similar insurance, with an insurance fund or by self-insurance authorized by the
jurisdictions in which it operates, insurance concerning its properties and businesses against
casualties and contingencies and of types and in amounts (and with co-insurance and deductibles) as
is customary in the case of similar businesses. In addition, each Borrower shall and shall cause
each other Company to, (a) deliver copies of the policies and endorsements for the insurance
required by this Section 7.9 to Administrative Agent promptly after issuance and renewal of
each and (b) cause each policy of insurance to provide that it will not be cancelled or modified
(as to term, coverage, scope, property or risks covered, change or addition of loss payee or
additional insured or otherwise) without 30 days prior written notice to Administrative Agent.
7.10 Compliance with Governmental Requirements. Each Company shall (a) operate and
manage its businesses and otherwise conduct its affairs in compliance with all Governmental
Requirements (including without limitation, all Environmental Laws and Environmental Permits)
except to the extent noncompliance reasonably could be expected not to constitute a Material
Adverse Event, (b) promptly deliver to Administrative Agent a copy of any notice received from any
Governmental Authority alleging that any Company is not in compliance with any Governmental
Requirements (including any Environmental Laws or Environmental Permits) if the allegation
reasonably could constitute a Material Adverse Event and (c) promptly deliver to
Administrative Agent a copy of any notice received from any Governmental Authority alleging
that any Company has any potential Environmental Liability if the allegation reasonably could
constitute a Material Adverse Event.
Amended and Restated Credit Agreement Page 39
7.11 Indemnification.
(a) AS USED IN THIS SECTION: (I) INDEMNITOR MEANS EACH BORROWER AND EACH
OTHER COMPANY; (II) INDEMNITEE MEANS ADMINISTRATIVE AGENT, EACH LENDER, EACH
PRESENT AND FUTURE AFFILIATE OF ADMINISTRATIVE AGENT AND EACH LENDER, EACH PRESENT AND
FUTURE REPRESENTATIVE OF ADMINISTRATIVE AGENT AND EACH LENDER OR ANY OF THOSE AFFILIATES AND
EACH PRESENT AND FUTURE SUCCESSOR AND ASSIGN OF ADMINISTRATIVE AGENT AND EACH LENDER OR ANY
OF THOSE AFFILIATES OR REPRESENTATIVES; AND (III) INDEMNIFIED LIABILITIES MEANS
ALL PRESENT AND FUTURE, KNOWN AND UNKNOWN, FIXED AND CONTINGENT, ADMINISTRATIVE,
INVESTIGATIVE, JUDICIAL AND OTHER CLAIMS, DEMANDS, ACTIONS, CAUSES OF ACTION,
INVESTIGATIONS, SUITS, PROCEEDINGS, AMOUNTS PAID IN SETTLEMENT, DAMAGES, JUDGMENTS,
PENALTIES, COURT COSTS, LIABILITIES AND OBLIGATIONS, AND ALL PRESENT AND FUTURE COSTS,
EXPENSES AND DISBURSEMENTS (INCLUDING ALL REASONABLE ATTORNEYS FEES AND EXPENSES WHETHER OR
NOT SUIT OR OTHER PROCEEDING EXISTS OR ANY INDEMNITEE IS PARTY TO ANY SUIT OR OTHER
PROCEEDING) IN ANY WAY RELATED TO ANY OF THE FOREGOING, THAT MAY AT ANY TIME BE IMPOSED ON,
INCURRED BY, OR ASSERTED AGAINST, ANY INDEMNITEE AND IN ANY WAY RELATING TO OR ARISING OUT
OF ANY (1) CREDIT DOCUMENT OR TRANSACTION CONTEMPLATED BY ANY CREDIT DOCUMENT, (2)
ENVIRONMENTAL LIABILITY IN ANY WAY RELATED TO ANY COMPANY, OR ACT, OMISSION, STATUS,
OWNERSHIP, OR OTHER RELATIONSHIP, CONDITION, OR CIRCUMSTANCE CONTEMPLATED BY, CREATED UNDER,
OR ARISING PURSUANT TO OR IN CONNECTION WITH ANY CREDIT DOCUMENT, OR (3) INDEMNITEES SOLE
OR CONCURRENT ORDINARY NEGLIGENCE.
(b) EACH INDEMNITOR AGREES, JOINTLY AND SEVERALLY, TO INDEMNIFY PROTECT AND DEFEND EACH
INDEMNITEE FROM AND AGAINST, HOLD EACH INDEMNITEE HARMLESS FROM AND AGAINST, AND ON DEMAND
PAY OR REIMBURSE EACH INDEMNITEE FOR, ALL INDEMNIFIED LIABILITIES.
(c) THE FOREGOING PROVISIONS (I) ARE NOT LIMITED IN AMOUNT EVEN IF THAT AMOUNT EXCEEDS
THE OBLIGATION, (II) INCLUDE, WITHOUT LIMITATION, REASONABLE FEES AND EXPENSES OF ATTORNEYS
AND OTHER COSTS AND EXPENSES OF LITIGATION OR PREPARING FOR LITIGATION AND DAMAGES OR INJURY
TO PERSONS,
PROPERTY, OR NATURAL RESOURCES ARISING UNDER ANY STATUTORY OR COMMON LAW GOVERNMENTAL
REQUIREMENT, PUNITIVE DAMAGES, FINES, AND OTHER PENALTIES, AND (III) ARE NOT AFFECTED BY THE
SOURCE OR ORIGIN OF ANY HAZARDOUS SUBSTANCE, AND (IV) ARE NOT AFFECTED BY ANY INDEMNITEES
INVESTIGATION, ACTUAL OR CONSTRUCTIVE KNOWLEDGE, COURSE OF DEALING, OR WAIVER.
Amended and Restated Credit Agreement Page 40
(d) HOWEVER, NO INDEMNITEE IS ENTITLED TO BE INDEMNIFIED UNDER THE CREDIT DOCUMENTS FOR
ITS OWN FRAUD, GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT.
(e) ALTHOUGH FAILURE TO DO SO DOES NOT REDUCE OR IMPAIR ANY INDEMNITORS OBLIGATIONS
UNDER THIS SECTION, EACH INDEMNITEE SHALL PROMPTLY NOTIFY BORROWERS OF ANY EVENT ABOUT WHICH
THE INDEMNITEE HAS RECEIVED WRITTEN NOTICE AND THAT IS REASONABLY LIKELY TO RESULT IN ANY
INDEMNIFIED LIABILITY. EACH INDEMNITOR MAY, AT ITS OWN COST AND EXPENSE, PARTICIPATE IN THE
DEFENSE IN ANY PROCEEDING INVOLVING ANY INDEMNIFIED LIABILITY. IF NO EVENT OF DEFAULT OR
POTENTIAL DEFAULT EXISTS, INDEMNITORS MAY ASSUME THE DEFENSE IN THAT PROCEEDING ON BEHALF OF
THE APPLICABLE INDEMNITEES, INCLUDING THE EMPLOYMENT OF COUNSEL IF FIRST APPROVED (WHICH
APPROVAL MAY NOT BE UNREASONABLY WITHHELD) BY THE APPLICABLE INDEMNITEES. IF INDEMNITORS
ASSUME ANY DEFENSE, THEY SHALL KEEP THE APPLICABLE INDEMNITEES FULLY ADVISED OF THE STATUS
OF, AND SHALL CONSULT WITH, AND RECEIVE THE CONCURRENCE OF, THOSE INDEMNITEES BEFORE TAKING
ANY MATERIAL POSITION IN RESPECT OF, THAT PROCEEDING. IF INDEMNITORS CONSENT, IF AN EVENT
OF DEFAULT, POTENTIAL DEFAULT OR MATERIAL ADVERSE EVENT EXISTS OR IF ANY INDEMNITEE
REASONABLY DETERMINES THAT AN ACTUAL CONFLICT OF INTERESTS EXISTS BETWEEN INDEMNITORS AND
THAT INDEMNITEE WITH RESPECT TO THE SUBJECT MATTER OF THE PROCEEDING OR THAT INDEMNITORS ARE
NOT DILIGENTLY PURSUING THE DEFENSE, THEN (I) THAT INDEMNITEE MAY, AT INDEMNITORS JOINT AND
SEVERAL EXPENSE, EMPLOY COUNSEL TO REPRESENT THAT INDEMNITEE THAT IS SEPARATE FROM COUNSEL
FOR INDEMNITORS OR ANY OTHER PERSON IN THAT PROCEEDING AND (II) INDEMNITORS ARE NO LONGER
ENTITLED TO ASSUME THE DEFENSE ON BEHALF OF THAT INDEMNITEE. NO INDEMNITOR MAY AGREE TO THE
SETTLEMENT OF ANY INDEMNIFIED LIABILITY, OR ANY MATTERS OR ISSUES MATERIAL TO OR NECESSARY
FOR THE RESOLUTION OF ANY SUCH LIABILITY, WITHOUT THE PRIOR WRITTEN CONSENT OF THE
APPLICABLE INDEMNITEES UNLESS, AS AGREED TO IN WRITING BY AN INDEMNITEE, THAT SETTLEMENT
FULLY RELIEVES THOSE INDEMNITEES OF ANY LIABILITY WHATSOEVER FOR THAT
INDEMNIFIED LIABILITY. IF AN INDEMNITEE AGREES TO THE SETTLEMENT OF ANY INDEMNIFIED
LIABILITY WITHOUT THE PRIOR WRITTEN CONSENT OF INDEMNITORS (WHICH CONSENT MAY NOT BE
UNREASONABLY WITHHELD), THEN INDEMNITORS ARE NO LONGER OBLIGATED FOR THAT INDEMNIFIED
LIABILITY IN RESPECT OF THAT INDEMNITEE.
Amended and Restated Credit Agreement Page 41
7.12 Mortgage Loan Approval, Collection and Servicing Standards. Each Borrower shall
follow the loan approval, collection and servicing policies and standards in effect as of the
Closing Date, except for immaterial changes in such policies and standards or changes in such
policies and standards disclosed to and approved in writing by Administrative Agent and Lenders.
7.13 Negative Pledge. Each Borrower hereby covenants and agrees (and agrees to cause
each other Company) not to directly or indirectly create, incur, grant, suffer, or permit to be
created or incurred any Lien on any of the respective assets of such Companies, other than
Permitted Liens. Furthermore, in the event that, notwithstanding the foregoing, any such Liens
(other than Permitted Liens) are granted, incurred, or created, then, in addition to the other
Rights granted to Administrative Agent and Lenders hereunder or under applicable Governmental
Requirements, (a) the Companies hereby grant to Administrative Agent and Lenders an equal and
ratable Lien in and to the property so encumbered, (b) any Person receiving the benefit of any such
additional Liens shall be deemed to receive any such grant or conveyance of Liens for the ratable
and pari passu benefit of Lenders and Administrative Agent and shall be deemed the bailee and agent
for such Lenders for the sole purpose of holding any such collateral and Liens and perfecting Liens
in favor of Administrative Agent and Lenders with respect thereto, and (c) upon the request of
Administrative Agent, each Company shall execute, and shall request the other Person to execute,
all such documents and take all actions requested by Required Lenders to more fully evidence and
create such ratable, pari passu Liens in favor of Lenders and Administrative Agent.
SECTION 8. NEGATIVE COVENANTS.
For so long as any Lender is committed to lend under this agreement and until the Obligation
has been fully paid and performed, each Borrower covenants and agrees with Administrative Agent and
Lenders as follows:
8.1 Payroll Taxes. No Company may directly or indirectly use any proceeds of any
Borrowing (a) for any purpose other than as represented in this agreement, or (b) for the payment
of wages of employees unless a timely payment to or deposit with the United States of America of
all amounts of Tax required to be deducted and withheld with respect to such wages is also made.
8.2 Debt. No Company may:
(a) Create, incur or suffer to exist (directly or indirectly) any direct, indirect,
fixed or contingent liability for any Debt except the following (the Permitted
Debt):
(i) the Obligation;
Amended and Restated Credit Agreement Page 42
(ii) Debt existing on the Closing Date, as more particularly described on
Schedule 8.2 (the Existing Debt);
(iii) Debt arising under or in connection with any Structured Financing that is
entered into as a result of a Companys Asset Securitization, but in each case only
to the extent that such Debt existed on the First Amendment Effective Date;
(iv) Debt under SBIC debentures issued on behalf of a Subsidiary of PMC which
is an SBIC and which such Debt is in all cases non-recourse to PMC and First Western
in an aggregate amount not to exceed $35,000,000 at any one time outstanding
(including any such Debt existing on the Closing Date and described on Schedule
8.2), provided that, no Event of Default or Potential Default
has occurred and is continuing when any such Debt is to be incurred, and no Event of
Default or Potential Default would be created by such incurrence. PMC shall provide
any information requested by Administrative Agent and Lenders with respect to such
Debt, including, without limitation, copies of the loan documents evidencing the
Debt;
(v) so long as (A) there exists no Potential Default or Event of Default at the
time of its incurrence, and no Event of Default or Potential Default would be
created by such incurrence, and (B) the Borrowers have obtained the prior written
consent of the Administrative Agent, indebtedness and other obligations arising
under Rate Management Transactions contemplated by this agreement;
(vi) so long as there exists no Potential Default or Event of Default at the
time of its incurrence, and no Event of Default or Potential Default would be
created by such incurrence (including, without limitation, with respect to
Section 9.3), Debt owed among the Borrowers; and
(vii) so long as there exists no Potential Default or Event of Default at the
time of its incurrence, and no Event of Default or Potential Default would be
created by such incurrence, Debt incurred by the Specified Subsidiaries to PMC,
provided that, the aggregate amount of the sum of (A) such Debt of
the Specified Subsidiaries owed to PMC plus (B) Investments made by PMC in the
Specified Subsidiaries in accordance with the terms of Section 8.7(g), may
not exceed an aggregate amount for all Debt and Investments in all Specified
Subsidiaries at any one time outstanding, of $35,000,000.
(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, or fund or cause to be funded any sinking or similar fund for any such
Debt, except for (i) the Obligation, or (ii) any Debt owed by a Special Purpose Entity
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 Potential 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 promptly transferred to PMC.
Amended and Restated Credit Agreement Page 43
8.3 Liens. No Company may (a) create, incur or suffer or permit to be created or
incurred or to exist any Lien upon any of its properties except a Permitted Lien or (b) enter into
or permit to exist any arrangement or agreement that directly or indirectly prohibits any Company
from creating or incurring any Lien on any of its assets or properties except (i) the Credit
Documents, (ii) any lease that places a Lien prohibition on only the property subject to that
lease, and (iii) arrangements and agreements that apply only to property subject to Permitted
Liens. The following are Permitted Liens:
(a) Liens existing on the Closing Date, as more particularly described on Schedule
8.3 (the Existing Liens);
(b) Liens on the assets owned by any Special Purpose Entity to the extent such Debt is
permitted to exist under Section 8.2(a)(iii) of this Agreement;
(c) Any interest or title of a lessor in property being leased under an operating lease
that does not constitute Debt;
(d) Liens arising under Rate Management Transactions permitted by this agreement;
(e) Bankers Liens and Rights of setoff or recoupment;
(f) Pledges or deposits made to secure any Companys payment of workers compensation,
unemployment insurance or other forms of governmental insurance or benefits or to
participate in any fund in connection with workers compensation, unemployment insurance,
pensions or other social security programs;
(g) Zoning and similar restrictions on the use of, and easements, restrictions,
covenants, title defects and similar encumbrances on, Real Property that do not impair the
use of such Real Property (other than of an inconsequential nature) and that are not
violated by existing or proposed structures or land use; and
(h) If no Lien has been filed in any jurisdiction or agreed to (i) claims and Liens for
Taxes not yet due and payable, (ii) statutory mechanics Liens and materialmans Liens for
services or materials and similar statutory Liens incident to construction and maintenance
of Real Property, in each case for which payment is not yet due and payable, (iii) statutory
landlords Liens for rental not yet due and payable and (iv) statutory Liens of warehousemen
and carriers and similar statutory Liens securing obligations that are not yet due and
payable.
8.4 Employee Plans. No Company may permit any of the events or circumstances
described in Section 6.11 to exist or occur except where the failure to perform the
foregoing could not reasonably be expected to result in a Material Adverse Event.
Amended and Restated Credit Agreement Page 44
8.5 Transactions with Affiliates. No Company may enter into any transaction with any
of its Affiliates except (a) Asset Securitizations existing on the First Amendment Effective Date,
(b) transactions permitted by Section 8.2(b)(ii), (c) Investments permitted by Section
8.7(g) and (d) transactions (other than 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 arms length transaction with a Person that was not its Affiliate.
8.6 Compliance with Governmental Requirements and Documents. No Company shall (a)
violate the provisions of any Governmental Requirements (including, without limitation, OSHA and
Environmental Laws) applicable to it or of any material agreement to which it is a party or by
which any of its property is subject or bound if that violation alone, or when aggregated with all
other violations, reasonably could be expected to result in a Material Adverse Event, (b) violate
any provision of its Organizational Documents or (c) repeal, replace or amend any provision of its
Organizational Documents if that action reasonably could be expected to result in a Material
Adverse Event.
8.7 Investments. No Company may make any Investments except the following (the
Permitted Investments):
(a) (i) Readily marketable, direct, full faith and credit obligations of the United
States of America or obligations guaranteed by the full faith and credit of the United
States of America and (ii) readily marketable obligations of an agency or instrumentality
of, or corporation owned, controlled or sponsored by, the United States of America that are
generally considered in the securities industry to be implicit obligations of the United
States of America, in each case, due within one year after the acquisition of it
(collectively, Government Securities);
(b) Readily marketable direct obligations of any state of the United States of America
given on the date of such investment a credit rating of at least Aa by Moodys Investors
Service, Inc. or AA by Standard & Poors Corporation, in each case due within one year from
the making of the investment;
(c) Certificates of deposit issued by, bank deposits in, eurodollar deposits through,
bankers acceptances of, and repurchase agreements covering Government Securities executed
by, (i) any Lender or (ii) any bank incorporated under the Governmental Requirements of the
United States of America or any of its states and given on the date of the investment a
short term certificate of deposit credit rating of at least P-2 by Moodys Investors
Service, Inc., or A-2 by Standard & Poors Corporation, in each case due within one year
after the date of the making of the investment;
(d) Certificates of deposit issued by, bank deposits in, eurodollar deposits through,
bankers acceptances of, and repurchase agreements covering Government Securities executed
by, any branch or office located in the United States of America of a bank incorporated
under the Governmental Requirements of any jurisdiction outside the United States of America
having on the date of the investment a short term certificate of deposit credit rating of a
least P-2 by Moodys Investors Service, Inc., or A-2 by Standard
& Poors Corporation, in each case due within one year after the date of the making of
the investment;
Amended and Restated Credit Agreement Page 45
(e) Commercial paper maturing in 270 days or less from the date of issuance and rated
P-1 or better by Moodys Investors Service, Inc., or A-1 or better by Standard & Poors
Corporation;
(f) Money market instruments and mutual funds rated AAA by Standard & Poors Corporation
or given one of the two highest credit rankings for such investments by any other
nationally-recognized rating service; and
(g) So long as no Event of Default or Potential Default has occurred and is continuing
when any such Investment is to be made, and no Event of Default or Potential Default would
be created thereby, Investments made by PMC in (i) Specified Subsidiaries, so long as the
aggregate amount of the sum of (A) Investments made by PMC in the Specified Subsidiaries,
plus (B) Debt of the Specified Subsidiaries owed to PMC in accordance with the terms of
Section 8.2(a)(vii), does not exceed an aggregate amount for all Debt and
Investments in all Specified Subsidiaries at any one time outstanding, of $35,000,000, and
(ii) First Western (so long as First Western is in compliance with Section 9.3).
8.8 Real Property. No Company may purchase any real property or any hotel/motel
project (it being understood that the Companies may acquire REO Property).
8.9 Distributions; Other Payments. No Company shall enter into or permit to exist any
arrangement or agreement which directly or indirectly prohibits any such Company from declaring,
making or paying, directly or indirectly, any Distribution. No Company shall, directly or
indirectly, declare, make or pay any Distributions except for:
(a) Distributions by any Company to (i) PMC or (ii) another Company that is a parent of
a Company; and
(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, Distributions by PMC.
8.10 Disposition of Assets. No Company may sell, assign, lease, transfer or otherwise
dispose of any of its assets (including, without limitation, equity interests in any other Company)
other than pursuant to a Permitted Asset Sale.
8.11 Mergers, Consolidations and Dissolutions. No Company may merge or consolidate
with any other Person, or acquire, in one or a series of related transactions, all or substantially
all of the equity or assets of any Person; provided that, notwithstanding the foregoing, so long as
no Potential Default or Event of Default then exists or would be created by such transaction, PMC
may from time to time acquire substantially all of the assets of any of the Special Purpose
Entities that have repaid in full all of the indebtedness and other obligations
incurred by them in connection with an Asset Securitization. In addition, no Company may
dissolve or convert to any other form of entity.
Amended and Restated Credit Agreement Page 46
8.12 Assignment. No Company may assign or transfer any of its Rights, duties or
obligations under any of the Credit Documents.
8.13 Fiscal Year and Accounting Methods. No Company may change either its fiscal year
for accounting purposes or any material aspect of its method of accounting.
8.14 New Businesses. No Company, including, without limitation, any new Subsidiary,
may engage in any business except the businesses in which it is presently engaged and any other
reasonably related business.
8.15 Government Regulations. No Company may conduct its business in a way that it
becomes regulated under the Investment Company Act of 1940, as amended, or the Public Utility
Holding Company Act of 2005, as amended.
8.16 Financial Contracts. No Company will enter into or remain liable upon any
Financial Contract, except Rate Management Transactions permitted by Section 8.2(a)(v) of
this agreement.
8.17 Strict Compliance. No Company may indirectly do anything that it may not
directly do under any covenant in any Credit Document.
SECTION 9. FINANCIAL COVENANTS.
For so long as any Lender is committed to lend under this agreement, and until the Obligation
has been fully paid and performed, Borrowers covenant and agree with Administrative Agent and
Lenders as follows:
9.1 Minimum Net Worth. The Companies consolidated Net Worth shall not at any time be
less than the sum of (a) $142,000,000, plus (b) 100% of the Net Proceeds from any and all Equity
Issuances by PMC after the First Amendment Effective Date.
9.2 Non-Hotel/Motel Loans. The aggregate principal balance of Mortgage Loans of the
Companies which are secured by Projects which are not hotels or motels shall not exceed an amount
equal to the difference between (a) 15% of the aggregate principal balance of all of its Mortgage
Loans minus (b) the aggregate loan loss reserve established by Companies with respect to the
Mortgage Loans.
9.3 Investments In and Debt Of First Western. Investments In and Debt Of First
Western shall not at any time during any of the periods set forth below exceed the amount opposite
such period set forth below:
|
|
|
|
|
Period |
|
Amount |
|
|
First Amendment Effective Date through December 31, 2011 |
|
$ |
27,500,000 |
|
January 1, 2012 through December 31, 2012 |
|
$ |
35,000,000 |
|
January 1, 2013 and thereafter |
|
$ |
43,000,000 |
|
Amended and Restated Credit Agreement Page 47
SECTION 10. EVENT OF DEFAULT.
The term Event of Default means the occurrence of any one or more of the following:
10.1 Payment of Obligation. Any Borrowers failure or refusal to pay (a) principal of
its Note, or any part thereof, on or before the date when due (including any required mandatory
prepayment when due) or (b) any other part of the Obligation on or before 5 days after the date
due.
10.2 Covenants. Any Company fails or refuses to punctually and properly perform,
observe and comply with any covenant or agreement in any Credit Document applicable to it, and that
failure or refusal continues for 15 days after that Company has, or with the exercise of reasonable
diligence should have had, notice of that failure or refusal; provided, however, that with respect
to the failure or refusal to perform any such covenant or agreement, no Borrower shall be entitled
to an opportunity to cure any such failure or refusal if such failure or refusal is either not
capable of being cured by such Borrower or if the same covenant has already been breached more than
two times during the twelve months preceding such breach.
10.3 Debtor Relief. Any Company (a) is not Solvent, (b) fails to pay its debts
generally as they become due, (c) voluntarily seeks, consents to or acquiesces in the benefit of
any Debtor Relief Law, other than as a creditor or claimant, or (d) becomes a party to or is made
the subject of any proceeding provided for by any Debtor Relief Law, other than as a creditor or
claimant, that could suspend or otherwise adversely affect the Rights of Administrative Agent or
any Lender under the Credit Documents (unless, in the event such proceeding is involuntary, the
petition instituting same is dismissed within 60 days after its filing).
10.4 Judgments and Attachments. Any Company fails, within 10 days after entry, to
pay, bond, or otherwise discharge any one or more judgments or orders for the payment of money (not
paid or fully covered by insurance) in excess of $1,000,000 (individually or collectively) or the
equivalent thereof in another currency or currencies, or any warrant of attachment, sequestration,
or similar proceeding against any Companys assets having a value (individually or collectively) of
$1,000,000 or the equivalent thereof in another currency or currencies, which is not either (a)
stayed on appeals; (b) being diligently contested in good faith by appropriate proceedings with
adequate reserves having been set aside on the books of such Company in accordance with GAAP, or
(c) dismissed by a court of competent jurisdiction.
10.5 Government Action. Unless otherwise covered by any event described in
Section 10.4, (a) the entry or issuance of an order by any Governmental Authority
(including the United States Justice Department) seeking to cause any Company to divest a
significant portion of its assets under any antitrust, restraint of trade, unfair competition,
industry regulation or similar Governmental Requirements, or (b) the commencement of any action or
proceeding by any Governmental Authority (i) for the purpose of condemning, seizing or otherwise
appropriating, or taking custody or control of all or any substantial portion of, any Companys
assets or (ii) which asserts any material violation by, or material liability against, any Company
based on any Environmental Law.
Amended and Restated Credit Agreement Page 48
10.6 Misrepresentation. Any representation or warranty made by any Company in any
Credit Document, or any financial data or other information now or hereafter furnished to
Administrative Agent or Lenders by or on behalf of any Borrower, at any time proves to have been
false, incorrect or misleading in any material respect when made.
10.7 Ownership of Other Companies. Any Company (other than PMC) or Special Purpose
Entity fails to constitute the direct or indirect Wholly-owned Subsidiary of PMC.
10.8 Change of Control. Any Change of Control shall occur.
10.9 Change in Management. Any material change in the management of PMC or the
Companies as a whole, including, without limitation, any two or more of the following are no longer
employed by PMC in the same or similar capacities as they are on the Closing Date: Lance Rosemore,
Jan Salit or Barry Berlin.
10.10 Other Debt. In respect of any Debt of any Company (other than the Obligation)
(a) any Company fails to make any payment when due, (b) any default or other event or condition
occurs or exists beyond the applicable grace or cure period, the effect of which is to permit any
holder of that Debt to cause (whether or not it elects to cause) any of such Debt to become due
before its stated maturity or regularly scheduled payment dates, or (c) any of that Debt is
declared to be due and payable or required to be prepaid by any Company before its stated maturity.
10.11 Rate Management Transactions. Nonpayment by any Company of any Rate Management
Obligation when due or the breach by any Company of any term, provision or condition contained in
any Rate Management Transaction.
10.12 Validity and Enforceability of Credit Documents. Any Credit Document ceases to
be in full force and effect or is declared to be null and void, or the validity or enforceability
of any Credit Document is contested by any Company or any other Person, or any Company or any other
Person asserts the absence of, or denies that it has, any liability or obligations under any Credit
Document to which it is a party except in accordance with that documents express provisions, shall
fail to constitute a valid, perfected first priority lien in favor of Administrative Agent for
Lenders, except in accordance with the express provisions of any applicable Credit Document.
10.13 Material Agreement Default or Cancellation. The default under, or breach or
cancellation of, any agreement or other contractual arrangement to which any Company is a party or
beneficiary or by which any of its property is bound or subject, which reasonably could be expected
to result in any (a) significant impairment of (i) the ability of PMC, First Western or any other
Company to perform any of its payment or other material obligations under any Credit Document or
(ii) the ability of Administrative Agent or Lenders to enforce any of those obligations or any of
their respective Rights under the Credit Documents, (b) significant and adverse effect on the
business, management or financial condition of the PMC, First Western or of the Companies as a
whole, as represented to Lenders in the Financials then most recently received by them or (c) event
or circumstance that could result in an Event of Default or Potential Default pursuant to
Sections 10.1 through 10.15 (inclusive).
Amended and Restated Credit Agreement Page 49
10.14 Environmental Matters. Any of the following shall occur and Required Lenders
determine, in good faith, that (a) such occurrence could materially and adversely affect the
business or operations of PMC, First Western or any other Company or any of their ability to pay
its debts as they come due or to pay or perform any of the Obligation, and (b) the aggregate
liability of PMC, First Western and the other Companies resulting from such occurrences could
exceed $1,000,000: (i) the failure of any Loan Obligor or other owner of any Project which secures
a Mortgage Loan or Commercial Loan to obtain and maintain any environmental permit, certificate,
license approval, registration, or authorization required under any Environmental Law; (ii) any
Loan Obligor or other owner of a Project which secures a Mortgage Loan or Commercial Loan is or may
be potentially responsible or liable with respect to any investigation or clean up of any
threatened or actual release of any Hazardous Substance with respect to such Project; (iii) a
Release of any Hazardous Substance has occurred at, on or under any Project which secures any
Mortgage Loan or Commercial Loan; (iv) any oral or written notification of a Release of Hazardous
Substance has been filed by or on behalf of PMC, First Western or any other Company or any Loan
Obligor or in relation to any Project which secures any Mortgage Loan or Commercial Loan; (v) any
Project which secures any Mortgage Loan or Commercial Loan is or will be listed or is proposed for
listing on the National Priority List promulgated pursuant to CERCLA, any related Governmental
Requirement or on any federal or state list of sites requiring investigation or clean up; (vi) any
Environmental Lien shall exist on any Project which secures any Mortgage Loan or Commercial Loan;
or (vii) any governmental action shall have been taken or be in process or pending which could
subject any Project which secures any Mortgage Loan or Commercial Loan to any Environmental Lien.
10.15 Employee Benefit Plans. (a) A Reportable Event or Reportable Events, or a
failure to make a required installment or other payment (within the meaning of Section 412(n)(1) of
the Code), shall have occurred with respect to any Employee Plan or Plans that is expected to
result in liability of any Borrower to the PBGC or to an Employee Plan in an aggregate amount
exceeding $1,000,000 and, within 30 days after the reporting of any such Reportable Event to
Administrative Agent or after the receipt by Administrative Agent of a statement required pursuant
to Section 7.1(f), Administrative Agent shall have notified such Borrower in writing that
(i) Required Lenders have made a reasonable determination that, on the basis of such Reportable
Event or Reportable Events or the failure to make a required payment, there are grounds under Title
IV of ERISA for the termination of such Employee Plan or Plans by the PBGC, or the appointment by
the appropriate United States district court of a trustee to administer such Employee Plan or Plans
or the imposition of a Lien pursuant to section 412(n) of the Code in favor of an Employee Plan and
(ii) as a result thereof, an Event of Default exists hereunder; or (b) any Borrower or any ERISA
Affiliate has provided to any affected party a 60 day notice of intent to terminate an Employee
Plan pursuant to a distress termination in accordance with section 4041(c) of ERISA if the
liability expected to be incurred as a result of such termination will exceed $1,000,000; or (c) a
trustee shall be appointed by a United States district court to administer any such Employee Plan;
or (d) the PBGC shall institute proceedings (including giving notice of intent thereof) to
terminate any such Employee Plan; or (e) (i) any Borrower or any ERISA Affiliate shall have been
notified by the sponsor of a Multiemployer Plan that is has incurred withdrawal liability (within
the meaning of section 4201 of ERISA to such Multiemployer Plan), (ii) such Borrower or such ERISA
Affiliate does not have reasonable grounds for contesting such withdrawal liability or is not
contesting such withdrawal liability in a timely and appropriate manner and (iii) the amount of
such withdrawal liability specified in such
notice, when aggregated with all other amounts required to be paid to Multiemployer Plans in
connection with withdrawal liabilities (determined as of the date or dates of such notification),
exceeds $1,000,000; or (f) any Borrower or any ERISA Affiliate shall have been notified by the
sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being
terminated, within the meaning of Title IV of ERISA, if solely as a result of such reorganization
or termination the aggregate annual contributions of any Borrower and its ERISA Affiliates to all
Multiemployer Plans that are then in reorganization or have been or are being terminated have been
or will be increased over the amounts required to be contributed to such Multiemployer Plans for
their most recently completed plan years by an amount exceeding $1,000,000.
Amended and Restated Credit Agreement Page 50
SECTION 11. RIGHTS AND REMEDIES.
11.1 Remedies Upon Event of Default.
(a) Debtor Relief. If an Event of Default exists under Section 10.3,
the commitment to extend credit under this agreement automatically terminates and the entire
unpaid principal balance of the Obligation, together with all interest accrued thereon, and
all other amounts then accrued and unpaid, automatically become and shall be due and payable
without any action of any kind whatsoever.
(b) Other Events of Default. If any Event of Default exists, Administrative
Agent may (with the consent of, and must, upon the request of Required Lenders), do any one
or more of the following: (i) If the maturity of the Obligation has not already been
accelerated under Section 11.1(a), declare the entire unpaid principal balance of
all or any part of the Obligation, together with all interest accrued thereon, and all other
amounts then accrued and unpaid, immediately due and payable, whereupon it is due and
payable; (ii) terminate the commitments of Lenders to extend credit under this agreement;
(iii) reduce any claim to judgment; (iv) require the Companies to open and maintain a
secured lockbox account for the receipt of the Companies accounts receivables; notes
receivable and other receivables; and (v) exercise any and all other legal or equitable
Rights afforded by the Credit Documents, by applicable Governmental Requirements or
otherwise at law or in equity.
(c) Offset. If an Event of Default exists, to the extent not prohibited by
applicable Governmental Requirements, each Lender may exercise the Rights of offset and
bankers lien against each and every account and other property, or any interest therein,
which any Company may now or hereafter have with, or which is now or hereafter in the
possession of, that Lender to the extent of the full amount of the Obligation owed to that
Lender, provided, however, no such right of offset or bankers lien may be exercised against
any account of a Special Purpose Entity.
11.2 Company Waivers. To the extent not prohibited by applicable Governmental
Requirements, each Borrower and each other Company waives, in respect to any action taken by
Administrative Agent or Lenders at any time and from time to time pursuant to Section 11.1,
presentment, demand for payment, protest, acceleration, notice of protest and nonpayment, notice of
intention to accelerate, notice of acceleration, and all other notices and acts, and agrees that
its liability with respect to all or any part of the Obligation is not affected by any
renewal or extension in the time of payment of all or any part of the Obligation, by any
indulgence, increase or other modification to, or by any release or change in any security for the
payment of, all or any part of the Obligation.
Amended and Restated Credit Agreement Page 51
11.3 Performance by Administrative Agent. If any Companys covenant, duty or
agreement is not performed in accordance with the terms of the Credit Documents, Administrative
Agent may at its option (but subject to the approval of Required Lenders), perform or attempt to
perform that covenant, duty or agreement on behalf of that Company, and any amount expended by or
on behalf of Administrative Agent in its performance or attempted performance is payable by the
Companies, jointly and severally, to Administrative Agent on demand, becomes part of the
Obligation, and bears interest on the portion thereof from time to time unpaid at the Default Rate
from the date of Administrative Agents expenditure until paid. However, Administrative Agent does
not assume and shall never have, except by its express written consent, any liability or
responsibility for the performance of any Companys covenants, duties or agreements.
Notwithstanding the forgoing, unless an Event of Default then exists, Administrative Agent shall
not take any such action without requesting that a Borrower take such action on its own behalf.
11.4 Not in Control. Nothing in any Credit Document gives or may be deemed to give to
Administrative Agent or any Lender the Right to exercise control over any Companys Real Property,
other assets, affairs or management or to preclude or interfere with any Companys compliance with
any Governmental Requirement or require any act or omission by any Company that may be harmful to
Persons or property. Any Material Adverse Event or other materiality or substantiality qualifier
of any representation, warranty, covenant, agreement or other provision of any Credit Document is
included for credit documentation purposes only and does not imply and should not be deemed to mean
that Administrative Agent or any Lender acquiesces in any non compliance by any Company with any
applicable Governmental Requirement, document, or otherwise or does not expect the Companies to
promptly, diligently and continuously carry out all appropriate removal, remediation, compliance,
closure or other activities required or appropriate in accordance with all Environmental Laws.
Administrative Agents and Lenders power is limited to the Rights provided in, or referred to by,
the Credit Documents. All of those Rights exist solely to assure payment and performance of the
Obligation in accordance with the terms of the Credit Documents, and may be exercised in a manner
determined to be appropriate by Administrative Agent or Lenders in their sole business judgment.
11.5 Course of Dealing. The acceptance by Administrative Agent or Lenders of any
partial payment on the Obligation is not a waiver of any Event of Default then existing. No waiver
by Administrative Agent, Required Lenders or Lenders of any Event of Default is a waiver of any
other then existing or subsequent Event of Default. No delay or omission by Administrative Agent,
Required Lenders or Lenders in exercising any Right under the Credit Documents impairs that Right
or is a waiver thereof or any acquiescence therein, nor will any single or partial exercise of any
Right preclude other or further exercise thereof or the exercise of any other Right under the
Credit Documents or otherwise.
Amended and Restated Credit Agreement Page 52
11.6 Cumulative Rights. All Rights available to Administrative Agent, Required
Lenders and Lenders under the Credit Documents are cumulative of and in addition to all other
Rights granted to Administrative Agent, Required Lenders and Lenders at law or in equity,
whether or not the Obligation is due and payable and whether or not Administrative Agent, Required
Lenders or Lenders have instituted any suit for collection, foreclosure, or other action in
connection with the Credit Documents.
11.7 Application of Proceeds. Any and all proceeds ever received by Administrative
Agent or Lenders from the exercise of any Rights pertaining to the Obligation shall be applied to
the Obligation according to Section 3.
11.8 Certain Proceedings. Each Borrower shall promptly execute and deliver, or cause
the execution and delivery of, all applications, certificates, instruments, registration
statements, and all other documents and papers Administrative Agent or Required Lenders reasonably
request in connection with the obtaining of any consent, approval, registration (other than
securities law registrations), qualification, permit, license or authorization of any Governmental
Authority or other Person necessary or appropriate for the effective exercise of any Rights under
the Credit Documents. Because each Borrower agrees that Administrative Agents and Required
Lenders remedies under applicable Governmental Requirements for failure of such Borrower to comply
with the provisions of this section would be inadequate and that failure would not be adequately
compensable in damages, each Borrower agrees that the covenants of this section may be specifically
enforced.
11.9 Expenditures by Administrative Agent or Lenders. Any sums spent by
Administrative Agent or any Lender in the exercise of any Right under any Credit Document is
payable by the Companies to Administrative Agent within 10 days of written demand, becomes part of
the Obligation, and bears interest on the portion thereof from time to time unpaid at the Default
Rate from the date spent until the date repaid.
SECTION 12. ADMINISTRATIVE AGENT AND LENDERS.
12.1 Administrative Agent.
(a) Appointment. Each Lender appoints Administrative Agent (including, without
limitation, each successor Administrative Agent in accordance with this Section 12)
as its nominee and agent to act in its name and on its behalf (and Administrative Agent and
each such successor accepts that appointment): (i) To act as its nominee and on its behalf
in and under all Credit Documents; (ii) to arrange the means whereby its funds are to be
made available to any Borrower under the Credit Documents; (iii) to take any action that it
properly requests under the Credit Documents (subject to the concurrence of other Lenders as
may be required under the Credit Documents); (iv) to receive all documents and items to be
furnished to it under the Credit Documents; (v) to promptly distribute to it all material
information, requests, documents, and items received from any Borrower under the Credit
Documents; (vi) to promptly distribute to it its ratable part of each payment or prepayment
(whether voluntary, as proceeds of collateral upon or after foreclosure, as proceeds of
insurance thereon, or otherwise) in accordance with the terms of the Credit Documents; and
(vii) to deliver to the appropriate Persons requests, demands, approvals, and consents
received from it. However, Administrative
Agent may not be required to take any action that exposes it to personal liability or
that is contrary to any Credit Document or applicable Governmental Requirements.
Amended and Restated Credit Agreement Page 53
(b) Successor. Administrative Agent may assign all of its Rights and
obligations as Administrative Agent under the Credit Documents to any of its Affiliates,
which Affiliate shall then be the successor Administrative Agent under the Credit Documents.
Administrative Agent may also voluntarily resign and shall resign upon the request of
Required Lenders for cause (i.e., Administrative Agent is continuing to fail to perform its
responsibilities as Administrative Agent under the Credit Documents). If the initial or any
successor Administrative Agent ever ceases to be a party to this agreement or if the initial
or any successor Administrative Agent ever resigns (whether voluntarily or at the request of
Required Lenders), then Required Lenders shall (which, if no Event of Default or Potential
Default exists, is subject to Borrowers approval that may not be unreasonably withheld)
appoint the successor Administrative Agent from among Lenders (other than the resigning
Administrative Agent). If Required Lenders fail to appoint a successor Administrative Agent
within 30 days after the resigning Administrative Agent has given notice of resignation or
Required Lenders have removed the resigning Administrative Agent, then the resigning
Administrative Agent may, on behalf of Lenders, appoint a successor Administrative Agent,
which must be a commercial bank having a combined capital and surplus of at least
$1,000,000,000 (as shown on its most recently published statement of condition). Upon its
acceptance of appointment as successor Administrative Agent, the successor Administrative
Agent succeeds to and becomes vested with all of the Rights of the prior Administrative
Agent, and the prior Administrative Agent is discharged from its duties and obligations of
Administrative Agent under the Credit Documents, and each Lender shall execute the documents
that any Lender, the resigning or removed Administrative Agent, or the successor
Administrative Agent reasonably request to reflect the change. After any Administrative
Agents resignation or removal as Administrative Agent under the Credit Documents, the
provisions of this section inure to its benefit as to any actions taken or not taken by it
while it was Administrative Agent under the Credit Documents.
(c) Rights as Lender. Administrative Agent, in its capacity as a Lender, has
the same Rights under the Credit Documents as any other Lender and may exercise those Rights
as if it were not acting as Administrative Agent. The term Lender, unless the
context otherwise indicates, includes Administrative Agent. Administrative Agents
resignation or removal does not impair or otherwise affect any Rights that it has or may
have in its capacity as an individual Lender. Each Lender and each Borrower agree that
Administrative Agent is not a fiduciary for Lenders or for Borrowers but is simply acting in
the capacity described in this agreement to alleviate administrative burdens for Borrowers
and Lenders, that Administrative Agent has no duties or responsibilities to Lenders or
Borrowers except those expressly set forth in the Credit Documents, and that Administrative
Agent in its capacity as a Lender has the same Rights as any other Lender.
Amended and Restated Credit Agreement Page 54
(d) Other Activities. Administrative Agent or any Lender may now or in the
future be engaged in one or more loan, letter of credit, leasing, or other financing
transactions with any Borrower, act as trustee or depositary for any Borrower, or otherwise
be engaged in other transactions with any Borrower (collectively, the other
activities) not the subject of the Credit Documents. Without limiting the
Rights of Lenders specifically set forth in the Credit Documents, neither Administrative
Agent nor any Lender is responsible to account to the other Lenders for those other
activities, and no Lender shall have any interest in any other Lenders activities, any
present or future guaranties by or for the account of any Borrower that are not contemplated
by or included in the Credit Documents, any present or future offset exercised by
Administrative Agent or any Lender in respect of those other activities, any present or
future property taken as security for any of those other activities, or any property now or
hereafter in Administrative Agents or any other Lenders possession or control that may be
or become security for the obligations of any Borrower arising under the Credit Documents by
reason of the general description of indebtedness secured or of property contained in any
other agreements, documents, or instruments related to any of those other activities (but,
if any payments in respect of those guaranties or that property or the proceeds thereof is
applied by Administrative Agent or any Lender to reduce the Obligation, then each Lender is
entitled to share ratably in the application as provided in the Credit Documents).
12.2 Expenses. Each Lender shall pay its Pro Rata Part of any reasonable expenses
(including, without limitation, court costs, reasonable attorneys fees and other costs of
collection) incurred by Administrative Agent (while acting in such capacity) in connection with any
of the Credit Documents if Administrative Agent is not reimbursed from other sources within 30 days
after incurrence. Each Lender is entitled to receive its Pro Rata Part of any reimbursement that
it makes to Administrative Agent if Administrative Agent is subsequently reimbursed from other
sources.
12.3 Proportionate Absorption of Losses. Except as otherwise provided in the Credit
Documents, nothing in the Credit Documents gives any Lender any advantage over any other Lender
insofar as the Obligation is concerned or relieves any Lender from ratably absorbing any losses
sustained with respect to the Obligation (except to the extent unilateral actions or inactions by
any Lender result in any Borrower or any other obligor on the Obligation having any credit,
allowance, setoff, defense, or counterclaim solely with respect to all or any part of that Lenders
Pro Rata Part of the Obligation).
12.4 Delegation of Duties; Reliance. Lenders may perform any of their duties or
exercise any of their Rights under the Credit Documents by or through Administrative Agent, and
Lenders and Administrative Agent may perform any of their duties or exercise any of their Rights
under the Credit Documents by or through their respective Representatives. Administrative Agent,
Lenders, and their respective Representatives (a) are entitled to rely upon (and shall be protected
in relying upon) any written or oral statement believed by it or them to be genuine and correct and
to have been signed or made by the proper Person and, with respect to legal matters, upon opinion
of counsel selected by Administrative Agent or that Lender (but nothing in this clause (a)
permits Administrative Agent to rely on (i) oral statements if a writing is required by this
agreement or (ii) any other writing if a specific writing is required by this agreement), (b) are
entitled to deem and treat each Lender as the owner and holder of its portion of the Obligation for
all purposes until, written notice of the assignment or transfer is given to and received by
Administrative Agent (and any request, authorization, consent, or approval of any Lender is
conclusive and binding on each subsequent holder, assignee, or
Amended and Restated Credit Agreement Page 55
transferee of or Participant in that Lenders portion of the Obligation until that notice is given and
received), (c) are not deemed to have notice of the occurrence of an Event of Default unless a
responsible officer of Administrative Agent, who handles matters associated with the Credit
Documents and transactions thereunder, has actual knowledge or Administrative Agent has been
notified by a Lender or a Borrower, and (d) are entitled to consult with legal counsel (including
counsel for Borrower), independent accountants, and other experts selected by Administrative Agent
and are not liable for any action taken or not taken in good faith by it in accordance with the
advice of counsel, accountants, or experts.
12.5 Limitation of Administrative Agents Liability.
(a) Exculpation. Neither Administrative Agent nor any of its Affiliates or
Representatives will be liable for any action taken or omitted to be taken by it or them
under the Credit Documents in good faith and believed by it or them to be within the
discretion or power conferred upon it or them by the Credit Documents or be responsible for
the consequences of any error of judgment (except for fraud, gross negligence, or willful
misconduct), and neither Administrative Agent nor any of its Affiliates or Representatives
has a fiduciary relationship with any Lender by virtue of the Credit Documents (but nothing
in this agreement negates the obligation of Administrative Agent to account for funds
received by it for the account of any Lender).
(b) Indemnity. Unless indemnified to its satisfaction against loss, cost,
liability, and expense, Administrative Agent may not be compelled to do any act under the
Credit Documents or to take any action toward the execution or enforcement of the powers
thereby created or to prosecute or defend any suit in respect of the Credit Documents. If
Administrative Agent requests instructions from Lenders, or Required Lenders, as the case
may be, with respect to any act or action in connection with any Credit Document,
Administrative Agent is entitled to refrain (without incurring any liability to any Person
by so refraining) from that act or action unless and until it has received instructions. In
no event, however, may Administrative Agent or any of its Representatives be required to
take any action that it or they determine could incur for it or them criminal or onerous
civil liability. Without limiting the generality of the foregoing, no Lender has any right
of action against Administrative Agent as a result of Administrative Agents acting or
refraining from acting under this agreement in accordance with instructions of Required
Lenders.
(c) Reliance. Administrative Agent is not responsible to any Lender or any
Participant for, and each Lender represents and warrants that it has not relied upon
Administrative Agent in respect of, (i) the creditworthiness of any Company and the risks
involved to that Lender, (ii) the effectiveness, enforceability, genuineness, validity, or
the due execution of any Credit Document (except by Administrative Agent), (iii) any
representation, warranty, document, certificate, report, or statement made therein (except
by Administrative Agent) or furnished thereunder or in connection therewith, (iv) the
adequacy of any collateral now or hereafter securing the Obligation or the existence,
priority, or perfection of any Lien now or hereafter granted or purported to be granted on
the collateral under any Credit Document, or (v) observation of or compliance with any of
the terms, covenants, or
Amended and Restated Credit Agreement Page 56
conditions of any Credit Document on the part of any Company. EACH LENDER AGREES TO INDEMNIFY ADMINISTRATIVE AGENT AND ITS REPRESENTATIVES
AND HOLD THEM HARMLESS FROM AND AGAINST (BUT LIMITED TO SUCH LENDERS COMMITMENT PERCENTAGE
OF) ANY AND ALL LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, ACTIONS, JUDGMENTS,
SUITS, COSTS, REASONABLE EXPENSES, AND REASONABLE DISBURSEMENTS OF ANY KIND OR NATURE
WHATSOEVER THAT MAY BE IMPOSED ON, ASSERTED AGAINST, OR INCURRED BY THEM IN ANY WAY RELATING
TO OR ARISING OUT OF THE CREDIT DOCUMENTS OR ANY ACTION TAKEN OR OMITTED BY THEM UNDER THE
CREDIT DOCUMENTS IF ADMINISTRATIVE AGENT AND ITS REPRESENTATIVES ARE NOT REIMBURSED FOR SUCH
AMOUNTS BY ANY COMPANY. ALTHOUGH ADMINISTRATIVE AGENT AND ITS REPRESENTATIVES HAVE THE
RIGHT TO BE INDEMNIFIED UNDER THIS AGREEMENT FOR ITS OR THEIR OWN ORDINARY NEGLIGENCE,
ADMINISTRATIVE AGENT AND ITS REPRESENTATIVES DO NOT HAVE THE RIGHT TO BE INDEMNIFIED UNDER
THIS AGREEMENT FOR ITS OR THEIR OWN FRAUD, GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT.
12.6 Event of Default. While an Event of Default exists, Lenders agree to promptly
confer in order that Required Lenders or Lenders, as the case may be, may agree upon a course of
action for the enforcement of the Rights of Lenders. Administrative Agent is entitled to act or
refrain from taking any action (without incurring any liability to any Person for so acting or
refraining) unless and until it has received instructions from Required Lenders. In actions with
respect to any Companys property, Administrative Agent is acting for the ratable benefit of each
Lender.
12.7 Limitation of Liability. No Lender or any Participant will incur any liability
to any other Lender or Participant except for acts or omissions in bad faith, and neither
Administrative Agent nor any Lender or Participant will incur any liability to any other Person for
any act or omission of any other Lender or any Participant.
12.8 Relationship of Lenders. The Credit Documents do not create a partnership or
joint venture among Administrative Agent and Lenders or among Lenders.
12.9 Benefits of Agreement. None of the provisions of this section inure to the
benefit of any Company or any other Person except Administrative Agent and Lenders. Therefore, no
Company or any other Person is entitled to rely upon, or entitled to raise as a defense, in any
manner whatsoever, the failure of Administrative Agent or any Lender to comply with these
provisions.
Amended and Restated Credit Agreement Page 57
SECTION 13. BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS.
13.1 Successors and Assigns. The terms and provisions of the Credit Documents shall
be binding upon and inure to the benefit of Borrowers and the Lenders and their respective
successors and assigns, except that (i) no Borrower shall have the right to assign its rights or
obligations under the Credit Documents and (ii) any assignment by any Lender must be made in
compliance with Section 13.3. The parties to this agreement acknowledge that
clause (ii) of this Section 13.1 relates only to absolute assignments and does not
prohibit assignments creating security interests, including, without limitation, any pledge or
assignment by any Lender of all or any portion of its rights under this agreement and any Note to a
Federal Reserve Bank; provided, however, that no such pledge or assignment creating a security
interest shall release the transferor Lender from its obligations hereunder unless and until the
parties thereto have complied with the provisions of Section 13.3. The Administrative
Agent may treat the Person which made any loan or which holds any Note as the owner thereof for all
purposes hereof unless and until such Person complies with Section 13.3; provided, however,
that the Administrative Agent may in its discretion (but shall not be required to) follow
instructions from the Person which made any loan or which holds any Note to direct payments
relating to such loan or Note to another Person. Any assignee of the rights to any loan or any
Note agrees by acceptance of such assignment to be bound by all the terms and provisions of the
Credit Documents. Any request, authority or consent of any Person, who at the time of making such
request or giving such authority or consent is the owner of the rights to any loan (whether or not
a Note has been issued in evidence thereof), shall be conclusive and binding on any subsequent
holder or assignee of the rights to such loan.
13.2 Participations.
(a) Permitted Participants; Effect. Any Lender may, in the ordinary course of
its business and in accordance with applicable law, at any time sell to one or more banks or
other entities (Participants) participating interests in any loan owing to such
Lender, any Note held by such Lender, any Commitment of such Lender or any other interest of
such Lender under the Credit Documents. In the event of any such sale by a Lender of
participating interests to a Participant, such Lenders obligations under the Credit
Documents shall remain unchanged, such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, such Lender shall remain the owner
of its loans and the holder of any Note issued to it in evidence thereof for all purposes
under the Credit Documents, all amounts payable by each Borrower under this agreement shall
be determined as if such Lender had not sold such participating interests, and Borrowers and
Administrative Agent shall continue to deal solely and directly with such Lender in
connection with such Lenders rights and obligations under the Credit Documents.
(b) Voting Rights. Each Lender shall retain the sole right to approve, without
the consent of any Participant, any amendment, modification or waiver of any provision of
the Credit Documents other than any amendment, modification or waiver with respect to any
loan or any Commitment in which such Participant has an interest which forgives principal,
interest or fees or reduces the interest rate or fees payable with respect to any such loan
or such Commitment, extends the Stated Termination Date, postpones any date fixed for any
regularly scheduled payment of principal of, or interest or fees on, any such loan or any
such Commitment, releases any guarantor of any such loan or releases all or substantially
all of the collateral, if any, securing any such loan.
Amended and Restated Credit Agreement Page 58
(c) Benefit of Setoff. Each Borrower agrees that each Participant shall be
deemed to have the right of setoff provided in Section 11.1 in respect of its
participating
interest in amounts owing under the Credit Documents to the same extent as if the
amount of its participating interest were owing directly to it as a Lender under the Credit
Documents, provided that each Lender shall retain the right of setoff provided in
Section 11.1 with respect to the amount of participating interests sold to each
Participant. The Lenders agree to share with each Participant, and each Participant, by
exercising the right of setoff provided in Section 11.1, agrees to share with each
Lender, any amount received pursuant to the exercise of its right of setoff, such amounts to
be shared in accordance with Section 11.1 as if each Participant were a Lender.
13.3 Assignments.
(a) Permitted Assignments. Any Lender may, in the ordinary course of its
business and in accordance with applicable law, at any time assign to one or more banks or
other entities (Purchasers) all or any part of its rights and obligations under
the Credit Documents. Such assignment shall be substantially in the form of Exhibit
E or in such other form as may be agreed to by the parties thereto. The consent of
Borrowers and Administrative Agent shall be required prior to an assignment becoming
effective with respect to a Purchaser which is not a Lender or an Affiliate thereof;
provided, however, that if an Event of Default has occurred and is continuing, the consent
of Borrowers shall not be required. Such consent shall not be unreasonably withheld or
delayed. Each such assignment with respect to a Purchaser which is not a Lender or an
Affiliate thereof shall (unless each of Borrowers and Administrative Agent otherwise
consents) be in an amount not less than the lesser of (i) $5,000,000 or (ii) the remaining
amount of the assigning Lenders Commitment (calculated as at the date of such assignment)
or outstanding loans (if the applicable Commitment has been terminated).
(b) Effect; Effective Date. Upon (i) delivery to Administrative Agent of an
assignment, together with any consents required by Section 13.3(a), and (ii) payment
of a $4,000 fee from the Purchaser or the assigning Lender to Administrative Agent for
processing such assignment (unless such fee is waived by Administrative Agent), such
assignment shall become effective on the effective date specified in such assignment. The
assignment shall contain a representation by the Purchaser to the effect that none of the
consideration used to make the purchase of the Commitments and loans under the applicable
assignment agreement constitutes plan assets as defined under ERISA and that the rights
and interests of the Purchaser in and under the Credit Documents will not be plan assets
under ERISA. On and after the effective date of such assignment, such Purchaser shall for
all purposes be a Lender party to this agreement and any other Credit Document executed by
or on behalf of the Lenders and shall have all the rights and obligations of a Lender under
the Credit Documents, to the same extent as if it were an original party hereto, and no
further consent or action by Borrower, the Lenders or Administrative Agent shall be required
to release the transferor Lender with respect to the percentage of the Commitments and loans
assigned to such Purchaser. Upon the consummation of any assignment to a Purchaser pursuant
to this Section 13.3(b), the transferor Lender, Administrative Agent and Borrowers
shall, if the transferor Lender or the Purchaser desires that its loans be evidenced by
Notes, make appropriate arrangements so that new Notes or, as appropriate, replacement Notes
are issued to such transferor Lender and new Notes or, as appropriate, replacement Notes,
are issued to such
Purchaser, in each case in principal amounts reflecting their respective Commitments,
as adjusted pursuant to such assignment.
Amended and Restated Credit Agreement Page 59
13.4 Dissemination of Information. Each Borrower authorizes each Lender to disclose
to any Participant or Purchaser or any other Person acquiring an interest in the Credit Documents
by operation of law (each a Transferee) and any prospective Transferee any and all
information in such Lenders possession concerning the creditworthiness of Borrowers and their
respective Subsidiaries, so long as such Transferee or prospective Transferee agrees in writing to
keep such information confidential.
13.5 Tax Treatment. If any interest in any Credit Document is transferred to any
Transferee which is organized under the laws of any jurisdiction other than the United States or
any State thereof, the transferor Lender shall cause such Transferee, concurrently with the
effectiveness of such transfer, to comply with the provisions of Section 3.19.
SECTION 14. MISCELLANEOUS.
14.1 Nonbusiness Days. Any payment or action that is due under any Credit Document on
a non-Business Day may be delayed until the next succeeding Business Day (but interest shall
continue to accrue on any applicable payment until payment is in fact made) unless the payment
concerns a LIBOR Rate Borrowing, in which case if the next-succeeding Business Day is in the next
calendar month, then such payment shall be made on the next-preceding Business Day.
14.2 Communications. Unless otherwise specifically provided, whenever any Credit
Document requires or permits any consent, approval, notice, request or demand from one party to
another, communication must be in writing (which may be by telex or fax) to be effective and shall
be deemed to have been given (i) if by telex, when transmitted to the appropriate telex number and
the appropriate answer back is received, (ii) if by fax, when transmitted to the appropriate fax
number and machine confirmation of receipt is received (and all communications sent by fax must be
confirmed promptly thereafter by telephone; but any requirement in this parenthetical shall not
affect the date when the fax shall be deemed to have been delivered), (iii) if by mail, on the
third Business Day after it is enclosed in an envelope and properly addressed, stamped, sealed and
deposited in the appropriate official postal service, (iv) if by e-mail, when transmitted to the
appropriate e-mail address of the receiving party (and all communications sent by e-mail must be
followed by a facsimile of that e-mail sent to the receiving party), or (v) if by any other means,
when actually delivered. Until changed by notice pursuant to this agreement, the addresses (and
fax numbers) for Borrowers and Administrative Agent are stated beside their respective signatures
to this agreement. The address (and fax number) for each Lender who becomes party to this
agreement shall be stated beside its name on Schedule 2 or in the Assignment and Assumption
pursuant to which it became a party.
14.3 Form and Number of Documents. The form, substance and number of counterparts of
each writing to be furnished under this agreement must be satisfactory to Administrative Agent and
its counsel.
Amended and Restated Credit Agreement Page 60
14.4 Exceptions to Covenants. No Company may take or fail to take any action that is
permitted as an exception to any of the covenants contained in any Credit Document if that action
or omission would result in the breach of any other covenant contained in any Credit Document.
14.5 Survival. All covenants, agreements, undertakings, representations, and
warranties made in any of the Credit Documents survive all closings under the Credit Documents and,
except as otherwise indicated, are not affected by any investigation made by any party.
14.6 Governing Governmental Requirements. Unless otherwise stated in any Credit
Document, the Governmental Requirements of the State of Texas and of the United States of America
govern the Rights and duties of the parties to the Credit Documents and the validity, construction,
enforcement, and interpretation of the Credit Documents.
14.7 Invalid Provisions. Any provision in any Credit Document held to be illegal,
invalid or unenforceable is fully severable; the appropriate Credit Document shall be construed and
enforced as if that provision had never been included; and the remaining provisions shall remain in
full force and effect and shall not be affected by the severed provision. Administrative Agent,
Lenders and each Company party to the affected Credit Document agree to negotiate, in good faith,
the terms of a replacement provision as similar to the severed provision as may be possible and be
legal, valid and enforceable.
14.8 Conflicts Between Credit Documents. The provisions of this agreement control if
in conflict (i.e., the provisions contradict each other as opposed to a Credit Document containing
additional provisions not in conflict) with the provisions of any other Credit Document.
14.9 Discharge Only Upon Payment in Full; Reinstatement in Certain Circumstances.
Each Companys obligations under the Credit Documents shall remain in full force and effect until
termination of the Commitments and payment in full of the Principal Debt and of all interest, fees,
and other amounts of the Obligation then due and owing, except that Sections 3.16,
3.18, Section 11, and Section 13, and any other provisions under the Credit
Documents expressly intended to survive by the terms hereof or by the terms of the applicable
Credit Documents, shall survive such termination. If at any time any payment of the principal of
or interest on any Note or any other amount payable by any Borrower under any Credit Document is
rescinded or must be otherwise restored or returned upon the insolvency, bankruptcy, or
reorganization of any Borrower or otherwise, the obligations of each Company under the Credit
Documents with respect to such payment shall be reinstated as though such payment had been due but
not made at such time.
14.10 Amendments, Consents, Conflicts, and Waivers.
(a) Required Lenders. Unless otherwise specifically provided (i) the
provisions of this agreement may be amended, modified, or waived, only by an instrument in
writing executed by Borrowers, Administrative Agent, and Required Lenders and supplemented
only by documents delivered or to be delivered in accordance with the express terms of this
agreement, and (ii) the other Credit Documents may only
be the subject of an amendment, modification, or waiver that has been approved by
Required Lenders and Borrowers.
Amended and Restated Credit Agreement Page 61
(b) All Lenders. Any amendment to or consent or waiver under this agreement or
any Credit Document that purports to accomplish any of the following must be by an
instrument in writing executed by Borrowers and Administrative Agent and executed (or
approved, as the case may be) by each Lender: (i) Extends the due date or decreases the
amount of any scheduled payment or amortization of the Obligation beyond the date specified
in the Credit Documents; (ii) decreases any rate or amount of interest, fees, or other sums
payable to Administrative Agent or Lenders under this agreement (except such reductions as
are contemplated by this agreement); (iii) changes the definition of Commitment,
Commitment Percentage, Required Lenders, or Pro Rata Part;
(iv) increases any one or more Lenders Commitments; or (v) changes this clause (b)
or any other matter specifically requiring the consent of all Lenders under this agreement.
(c) Conflicts. Any conflict or ambiguity between the terms and provisions of
this agreement and terms and provisions in any other Credit Document is controlled by the
terms and provisions of this agreement.
(d) Waivers. No course of dealing or any failure or delay by Administrative
Agent, any Lender, or any of their respective Representatives with respect to exercising any
Right of Administrative Agent or any Lender under this agreement operates as a waiver
thereof. A waiver must be in writing and signed by Administrative Agent and Lenders (or
Required Lenders, if permitted under this agreement) to be effective, and a waiver will be
effective only in the specific instance and for the specific purpose for which it is given.
14.11 Multiple Counterparts. Any Credit Document may be executed in a number of
identical counterparts, and by each party thereto on separate counterparts (including, at
Administrative Agents discretion, counterparts or signature pages executed and transmitted by fax)
with the same effect as if all signatories had signed the same document. All counterparts must be
construed together to constitute one and the same instrument.
14.12 VENUE, SERVICE OF PROCESS, AND JURY TRIAL.
(a) VENUE AND SERVICE OF PROCESS. EACH BORROWER, FOR ITSELF AND ITS SUCCESSORS
AND ASSIGNS, IRREVOCABLY (I) SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF THE STATE AND
FEDERAL COURTS IN TEXAS, (II) WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
GOVERNMENTAL REQUIREMENTS, ANY OBJECTION THAT IT MAY NOW OR IN THE FUTURE HAVE TO THE LAYING
OF VENUE OF ANY LITIGATION ARISING OUT OF OR IN CONNECTION WITH ANY CREDIT DOCUMENT AND THE
OBLIGATION BROUGHT IN THE DISTRICT COURTS OF DALLAS COUNTY, TEXAS, OR IN THE UNITED STATES
DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS, DALLAS
Amended and Restated Credit Agreement Page 62
DIVISION, (III) WAIVES ANY CLAIMS
THAT ANY LITIGATION BROUGHT IN ANY OF THE FOREGOING COURTS HAS BEEN BROUGHT IN AN INCONVENIENT FORUM, (IV)
CONSENTS TO THE SERVICE OF PROCESS OF ANY OF THOSE COURTS IN ANY LITIGATION BY THE MAILING
OF COPIES OF THAT PROCESS BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED, POSTAGE PREPAID, BY
HAND DELIVERY, OR BY DELIVERY BY A NATIONALLY RECOGNIZED COURIER SERVICE, AND SERVICE SHALL
BE DEEMED COMPLETE UPON DELIVERY OF THE LEGAL PROCESS AT ITS ADDRESS FOR PURPOSES OF THIS
AGREEMENT, AND (V) AGREES THAT ANY LEGAL PROCEEDING AGAINST ANY PARTY TO ANY CREDIT DOCUMENT
ARISING OUT OF OR IN CONNECTION WITH THE CREDIT DOCUMENTS OR THE OBLIGATION MAY BE BROUGHT
IN ONE OF THE FOREGOING COURTS.
(b) JURY WAIVER. EACH OF BORROWERS, ADMINISTRATIVE AGENT AND LENDERS HEREBY
VOLUNTARILY, KNOWINGLY, IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT TO HAVE A JURY
PARTICIPATE IN RESOLVING ANY DISPUTE (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE)
BETWEEN OR AMONG SUCH PARTIES ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT OR ANY
OTHER CREDIT DOCUMENT. THIS PROVISION IS A MATERIAL INDUCEMENT TO LENDERS TO PROVIDE THE
FINANCING DESCRIBED HEREIN OR IN THE OTHER CREDIT DOCUMENTS.
(c) General. The scope of each of the foregoing waivers is intended to be all
encompassing of any and all disputes that may be filed in any court and that relate to the
subject matter of this transaction, including, without limitation, contract claims, tort
claims, breach of duty claims, and all other common law and statutory claims. EACH
BORROWER ACKNOWLEDGES THAT THESE WAIVERS ARE A MATERIAL INDUCEMENT TO ADMINISTRATIVE AGENTS
AND EACH LENDERS AGREEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH OF
ADMINISTRATIVE AGENT AND EACH LENDER HAVE ALREADY RELIED ON THESE WAIVERS IN ENTERING INTO
THIS AGREEMENT, AND THAT ADMINISTRATIVE AGENT AND EACH LENDER WILL CONTINUE TO RELY ON EACH
OF THESE WAIVERS IN RELATED FUTURE DEALINGS. EACH BORROWER FURTHER WARRANTS AND REPRESENTS
THAT IT HAS REVIEWED THESE WAIVERS WITH ITS LEGAL COUNSEL, AND THAT IT KNOWINGLY AND
VOLUNTARILY AGREES TO EACH WAIVER FOLLOWING CONSULTATION WITH LEGAL COUNSEL. The
waivers in this section are irrevocable, meaning that they may not be modified either orally
or in writing, and these waivers apply to any future renewals, extensions, amendments,
modifications, or replacements in respect of the applicable Credit Document. In connection
with any Litigation, this agreement may be filed as a written consent to a trial by the
court.
Amended and Restated Credit Agreement Page 63
14.13 ENTIRETY. THE CREDIT DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN BORROWER,
THE OTHER COMPANIES, LENDERS, AND ADMINISTRATIVE AGENT AND MAY NOT BE CONTRADICTED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE
PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
14.14 Amendment and Restatement. This agreement amends and restates in its entirety
the Existing Credit Agreement. The execution of this agreement and the other Credit Documents
executed in connection herewith does not extinguish the indebtedness outstanding in connection with
the Existing Credit Agreement nor does it constitute a novation with respect to such indebtedness.
EACH BORROWER REPRESENTS AND WARRANTS THAT AS OF THE DATE HEREOF THERE ARE NO CLAIMS OR OFFSETS
AGAINST OR DEFENSES OR COUNTERCLAIMS TO ITS OR ANY OTHER PERSONS OBLIGATIONS UNDER THE EXISTING
CREDIT AGREEMENT AND THE OTHER CREDIT DOCUMENTS.
[Remainder of Page Intentionally Blank. Signature Page Follows]
Amended and Restated Credit Agreement Page 64
DULY EXECUTED AND DELIVERED by each of the signatories hereto as of the date first stated in
this agreement.
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PMC COMMERCIAL TRUST,
as a Borrower
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By: |
/s/ Barry Berlin
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Barry N. Berlin |
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Executive Vice President
and
Chief Financial Officer |
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Address for Notice:
PMC Commercial Trust
17950 Preston Road, Suite 600
Dallas, Texas 75252
Attn: Chief Financial Officer
Fax No.: 972/349-3265
FIRST WESTERN SBLC, INC.,
as a Borrower
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By: |
/s/ Barry Berlin
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Barry N. Berlin |
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Executive Vice President
and
Chief Financial Officer |
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Address for Notice:
First Western SBLC, Inc.
17950 Preston Road, Suite 600
Dallas, Texas 75252
Attn: Lance B. Rosemore
Fax No.:
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AMENDED AND RESTATED CREDIT AGREEMENT SIGNATURE PAGE
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JPMORGAN CHASE BANK, NATIONAL ASSOCIATION
as Administrative Agent, JPMorgan Chase,
and a Lender
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By: |
/s/ Denise Parks
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Denise Parks |
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Senior Vice President |
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Address for Notice:
JPMorgan Chase Bank, National Association
2200 Ross Avenue, 8th Floor
Dallas, Texas 75201
Attn: Denise Parks
Fax No.: 214/965-2946
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AMENDED AND RESTATED CREDIT AGREEMENT SIGNATURE PAGE