EXHIBIT 10.20
FIFTH AMENDMENT TO CREDIT AGREEMENT
THIS FIFTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is entered
into as of August ___ 2001, among PMC CAPITAL, INC., a Florida corporation
("Borrower"), certain Lenders, and BANK ONE, NA, with its main office in
Chicago, Illinois, successor by merger to Bank One, Texas, N.A. ("Administrative
Agent").
PRELIMINARY STATEMENT:
Borrower, Administrative Agent and Lenders are party to that certain
Credit Agreement (as renewed, extended, amended and restated, the "Credit
Agreement") dated as of March 22, 2000, pursuant to which the Lenders have made
and may hereafter make loans to Borrower. Borrower, Administrative Agent and
Lenders have agreed to amend the Credit Agreement in order to modify certain
covenants contained therein.
Accordingly, for adequate and sufficient consideration, the receipt of
which is hereby acknowledged, Borrower, Administrative Agent and Lenders agree
as follows:
1. Defined Terms; References. Unless otherwise stated in this Amendment (a)
terms defined in the Credit Agreement have the same meanings when used in this
Amendment and (b) references to "Sections," "Schedules" and "Exhibits" are to
sections, schedules and exhibits to the Credit Agreement.
2. Amendments.
(a) The defined term "Asset Coverage Ratio" in Section 1.1 of the
Credit Agreement is amended in its entirety as follows:
"Asset Coverage Ratio" means, at any time:
(a) the ratio of (i) the sum of (A) unencumbered
cash and cash equivalents of Borrower and
First Western, plus (B) the aggregate
outstanding principal balance of whole
unencumbered Performing Commercial Loans
then owned by Borrower of First Western,
plus (C) 50% of the aggregate outstanding
amount of any B-Pieces to (ii) the
outstanding principal amount of Senior Debt
for which either Borrower or First Western
is obligated; and
(b) for all the Companies, the ratio of (i) the
sum of (A) unencumbered cash and cash
equivalents of the Companies, plus (B) the
aggregate outstanding principal balance of
whole unencumbered Performing Commercial
Loans then owned by any Company, plus (C)
50% of the aggregate outstanding amount of
any B-Pieces to (ii) the outstanding
principal amount of Senior Debt for which
any Company is obligated.
(b) The defined term "B-Pieces" in Section 1.1 of the Credit Agreement
is amended in its entirety as follows:
"B-Pieces" means, at any time, the "Over
Collaterized" component of the "Retained Interest in
Transferred Assets" line item on Borrower's balance
sheet, and specifically excludes the "Reserve Fund"
and "Interest Only" components of such line item.
(c) Section 9.1 of the Credit Agreement is hereby amended in its
entirety as follows:
9.1. Minimum Net Worth. The Companies'
consolidated Net Worth shall not at any time (but
calculated for compliance reporting purposes as of
the last day of each fiscal quarter of Borrower) be
less than the sum of (a) $73,000,000 plus (b) 100% of
the Net Proceeds from any Equity Issuance by any
Company after the Closing Date.
(d) Section 9.5 of the Credit Agreement is hereby amended in its
entirety as follows:
9.5. Minimum Asset Coverage Ratio. The Asset
Coverage Ratio shall at all times (but calculated for
compliance reporting purposes as of the last day of
each fiscal quarter of Borrower) be greater than or
equal to (a) 1.10 to 1.00 for Borrower and First
Western and (b) 1.35 for the Companies.
3. Conditions Precedent. Notwithstanding any contrary provisions, the foregoing
paragraphs in this Amendment are not effective unless and until (a) the
representations and warranties in this Amendment are true and correct, (b)
Administrative Agent receives counterparts of this Amendment executed by each
party named below.
4. Ratifications. This Amendment modifies and supersedes all inconsistent terms
and provisions of the Credit Documents, and except as expressly modified and
superseded by this Amendment, the Credit Documents are ratified and confirmed
and continue in full force and effect. Borrower, Administrative Agent and
Lenders agree that the Credit Documents, as amended by this Amendment, continue
to be legal, valid, binding and enforceable in accordance with their respective
terms.
5. Representations and Warranties. Borrower hereby represents and warrants to
Administrative Agent and Lenders that (a) this Amendment and any Credit
Documents to be delivered under this Amendment have been duly executed and
delivered by Borrower, (b) no action of, or filing with, any Governmental
Authority is required to authorize, or is otherwise required in connection with,
the execution, delivery, and performance by Borrower of this Amendment and any
Credit Document to be delivered under this Amendment, (c) this Amendment and any
Credit Documents to be delivered under this Amendment are valid and binding upon
Borrower and are enforceable against Borrower in accordance with their
respective terms, except as limited by any applicable Debtor Relief Laws, (d)
the execution, delivery and
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performance by Borrower of this Amendment and any Credit Documents to be
delivered under this Amendment do not require the consent of any other Person
and do not and will not constitute a violation of any Governmental Requirements,
agreements or understandings to which Borrower is a party or by which Borrower
is bound, (e) the representations and warranties contained in the Credit
Agreement, as amended by this Amendment, and any other Credit Document are true
and correct in all material respects as of the date of this Amendment, and (f)
as of the date of this Amendment, no Event of Default or Potential Default
exists or is imminent.
6. References. All references in the Credit Documents to the "Credit Agreement"
refer to the Credit Agreement as amended by this Amendment. This Amendment is a
"Credit Document" referred to in the Credit Agreement and the provisions
relating to Credit Documents in the Credit Agreement are incorporated by
reference, the same as if set forth verbatim in this Amendment.
7. Counterparts. This Amendment may be executed in any number of counterparts
with the same effect as if all signatories had signed the same document.
8. Parties Bound. This Amendment binds and inures to the benefit of Borrower,
Administrative Agent and each Lender, and, subject to Section 13 of the Credit
Agreement, their respective successors and assigns.
9. Entirety. THIS AMENDMENT, THE CREDIT AGREEMENT AS AMENDED BY THIS AMENDMENT,
AND THE OTHER CREDIT DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES
FOR THE TRANSACTIONS THEREIN, AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENT BETWEEN THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENT BETWEEN THE PARTIES.
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SIGNATURE PAGE FOLLOWS.]
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EXECUTED as of the date first stated above.
BANK ONE, NA,
as Administrative Agent and a Lender
By:
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Xxxxxxx X. Xxxxxx, Vice President
PMC CAPITAL, INC.,
as Borrower
By:
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Name:
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Title:
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