EXHIBIT 10.23
INVESTMENT MANAGEMENT AGREEMENT
This Investment Management Agreement (the "AGREEMENT") dated this 1st
day of July, 2002 by and among PMC Commercial Trust, a Texas real estate
investment trust (the "COMPANY"), PMC Asset Management, Inc., a Texas
corporation ("PMC ASSET" or the "INVESTMENT MANAGER"), a wholly-owned subsidiary
of PMC Advisers, Ltd. ("PMC ADVISERS"), and PMC Capital, Inc. ("PMC CAPITAL").
1. CERTAIN DEFINITIONS
As used in this Agreement, the following terms have the meanings set
forth below:
"Affiliate" shall mean a Person that directly or indirectly, through
one or more intermediaries, controls, is controlled by, or is under common
control with, the first mentioned Person.
"Average Annual Value of All Invested Assets" shall mean the book value
of the Invested Assets determined in accordance with GAAP on the first day of
the year and on the last day of each quarter of such year divided by five.
"Average Annual Value of All Invested Assets at Date of Termination"
shall mean the book value of the Invested Assets at Date of Termination
determined in accordance with GAAP on the first day of the year and on the last
day of each quarter of such year divided by five.
"Average Common Equity Capital" shall mean the Common Equity Capital on
the first day of the year and on the last day of each quarter of such year,
divided by five.
"Average Quarterly Value of All Assets" shall mean the book value of
total assets of the Company or any Person wholly-owned (directly or indirectly)
by the Company determined in accordance with GAAP on the first day of the
quarter and on the last day of the quarter, divided by two.
"Average Quarterly Value of All Invested Assets" shall mean the book
value of Invested Assets determined in accordance with GAAP on the first day of
the quarter and on the last day of the quarter, divided by two.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Common Equity Capital" shall mean the sum of the stated capital plus
the additional paid-in capital for the Common Shares.
"Common Shares" shall mean the Company's common shares of beneficial
interest, par value $.01 per share.
"GAAP" shall mean generally accepted accounting principles.
"Independent Trust Managers" shall mean the trust managers of the
Company who are not affiliated with PMC Capital or its subsidiaries.
"Invested Assets" shall have the meaning set forth in Section 2 of this
Agreement.
"Invested Assets at Date of Termination" shall mean Primary Investments
and Other Investments and any Primary Investments or Other Investments that
arise from loan commitments, letters of intent or other agreements, in any case,
as in existence on the Termination Date, as set forth on a schedule to be
prepared by the Company and delivered to PMC Capital not later than 45 days from
such date of termination, which schedule shall be annually updated by the
Company and delivered to PMC Capital not later than 90 days following the end of
each of the Company's fiscal years during which the Non-Compete Agreement (as
defined in Section 10 of this Agreement) is in effect.
"Other Investments" shall have the meaning set forth in Section 2 of
this Agreement.
"Person" shall mean an individual, corporation, partnership,
association, trust or any unincorporated organization or other entity.
"Primary Investments" shall have the meaning set forth in Section 2 of
this Agreement.
"Return on Average Common Equity Capital" means the net income of the
Company determined in accordance with GAAP, less preferred dividends, if any,
divided by the Average Common Equity Capital.
"Termination Date" shall mean the date on which this Agreement no
longer has any force and effect, whether as a result of being terminated in
accordance with the provisions of Section 10 hereof (following the expiration of
the 60-day notice period provided for therein) or as a result of non-renewal (at
the expiration of the term hereof) for whatever reason.
1. PURPOSE OF THE COMPANY
The Company intends primarily to originate business loans (a) to small
business enterprises that exceed the net worth, asset, income, number of
employees or other limitations applicable to the Small Business Administration
("SBA") programs utilized by PMC Capital, (b) in excess of $1,333,000 to small
business enterprises without regard to SBA eligibility requirements, (c) for
which PMC Capital does not have available funds to make such loans or (d) that
cannot be originated by PMC Capital or its subsidiaries as a result of industry
concentration limitations. All such loans (collectively, the "Primary
Investments") will be secured by first liens on real estate and subject to the
Company's underwriting criteria. In addition, the Company may (i) purchase from
the Resolution Trust Company, the Federal Deposit Insurance Corporation and
other sellers loans on which payments are current at the time of the Company's
commitment to purchase and which meet the Company's underwriting criteria, (ii)
invest in other commercial loans secured by real estate and (iii) invest in real
estate (collectively, the "OTHER INVESTMENTS").
Concurrently with the execution of this Agreement, the Company, PMC
Asset, and PMC Capital shall enter into a Loan Origination Agreement in the form
of Exhibit A hereto (the "LOAN ORIGINATION AGREEMENT") pursuant to which PMC
Asset shall determine the allocation of the loan origination opportunities to
either the Company or PMC Capital.
The Company's primary investment objective is to obtain current income
from interest payments and other related fee income from Primary Investments
originated by it and Other Investments acquired by it and, in each case, owned
by the Company or by any Person wholly-owned (directly or indirectly) by the
Company (collectively, the "INVESTED ASSETS") for distribution to its
shareholders. The Company will invest in Invested Assets selected by the
Investment Manager in accordance with underwriting criteria established by the
trust managers with the intention of creating a portfolio of investments
intended to preserve the capital base of the Company and generate income for
distribution to the Company's shareholders. The Company's investments are
anticipated to be held primarily to maturity.
2. THE INVESTMENT MANAGER
PMC Asset shall act as the investment adviser to the Company and is
registered with the applicable governmental authorities of the State of Texas.
The Company hereto engages the services of PMC Asset as the Company's Investment
Manager.
3. OBLIGATIONS OF THE INVESTMENT MANAGER
As the Investment Manager, PMC Asset will:
(a) advise the Company as to the acquisition and disposition
of Invested Assets and temporary investments (collectively,
"INVESTMENTS") in accordance with the Company's underwriting criteria
and investment policies;
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(b) provide the Company with office space and services to the
extent required by the Company's trust managers, officers and
employees;
(c) maintain the Company's books of account and other records
and files;
(d) report to the Company's trust managers, or to any
committee or officer of the Company acting pursuant to the authority of
the trust managers, at such times and in such detail as the trust
managers deem appropriate in order to enable the Company to determine
that its investment policies are being observed and implemented;
(e) undertake its obligations pursuant hereto and any other
activities undertaken by PMC Asset on the Company's behalf subject to
any directives of the Company's trust managers or any duly constituted
committee or officer of the Company acting pursuant to authority of the
Company's trust managers;
(f) subject to the Company's investment policies and any
specific directives from the Company's trust managers, to effect
acquisitions and dispositions for the Company's account in the
Investment Manager's discretion and to arrange for the documents
representing acquired Investments to be delivered to the Company's
custodian;
(g) on a continuing basis, monitor, manage and service the
Company's Investments; and
(h) arrange debt and equity financing for the Company, subject
to policies adopted by the Company's trust managers.
4. EXPENSES TO BE PAID BY THE INVESTMENT MANAGER
The Investment Manager will pay for its own account all expenses
incurred by it in rendering the services hereunder without regard to the
compensation received by the Investment Manager from the Company hereunder.
Without limiting the generality of the foregoing, the Investment Manager shall
bear the following expenses incurred in connection with the performance of its
duties under this Agreement:
(a) employment expenses of the personnel employed by the
Investment Manager (other than fees paid and reimbursement of expenses
made to independent managers, independent contractors, mortgage
services, consultants, managers, local property managers or agents
employed by or on behalf of the Company including such persons or
entities which may be Affiliates of the Investment Manager when acting
in any such capacity, all of which shall be the responsibility of the
Company), including but not limited to, salaries, wages, payroll taxes
and the costs of employee benefit plans;
(b) rent, telephone, utilities, office furniture, equipment
and machinery (including computers, to the extent utilized) and other
office expenses of the Investment Manager, except to the extent such
expenses relate solely to an office maintained by the Company separate
from the office of the Investment Manager; and
(c) miscellaneous administrative expenses incurred in
supervising, monitoring and inspecting real property and such other
investments of the Company or relating to the performance by the
Investment Manager of its obligations hereunder.
Notwithstanding the foregoing, any share options granted by the Company
to directors, officers and key employees of the Investment Manager shall not be
an expense to be borne by the Investment Manager pursuant to this Section 5.
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5. EXPENSES TO BE PAID BY THE COMPANY
Except as expressly otherwise provided in this Agreement, the Company
will pay any expenses incurred by the Company and will reimburse the Investment
Manager promptly, against the Investment Manager's voucher, for any such
expenses paid by the Investment Manager for the Company's account. Without
limiting the generality of the foregoing, such expenses shall include:
(a) all expenses of the Company's organization and of any
offering and sale by the Company of its shares;
(b) expenses of the Company operations, except as otherwise
provided in Section 5 above;
(c) financing costs and debt service with respect to
indebtedness of the Company;
(d) taxes on income and taxes and assessments on real
property, if any, and all other taxes applicable to the Company;
(e) legal, auditing, accounting, underwriting, brokerage,
listing, reporting, registration and other fees, and printing,
engraving and other expenses and taxes incurred in connection with the
issuance, distribution, transfer, trading, registration and stock
exchange listing of the Company's securities, whether such expenses are
directly incurred by the Company or are allocated to the Company by the
Investment Manager either pursuant to this Agreement or as otherwise
agreed to by the Board of Trust Managers of the Company from time to
time;
(f) expenses of organizing, revising, amending, converting,
modifying or terminating the Company;
(g) fees and expenses paid to trust managers and officers who
are not employees or Affiliates of the Investment Manager, independent
advisors, independent contractors, mortgage services, consultants,
managers, local property managers or management firms, accountants,
attorneys and other agents employed by or on behalf of the Company and
out-of-pocket expenses of trust managers of the Company;
(h) expenses directly connected with the acquisition,
disposition and ownership of Invested Assets, including real estate
interests or other property (including the costs of foreclosure,
insurance premiums, legal services, brokerage and sales commissions,
maintenance, repair, improvement and local management of property),
other than expenses with respect thereto of employees of the Investment
Manager to the extent that such expenses are to be borne by the
Investment Manager pursuant to Section 5 above, and any expenses
allocated to the Company by the Investment Manager as agreed to by the
Board of Trust Managers of the Company from time to time;
(i) all insurance costs incurred in connection with the
Company (including officer and trust manager liability insurance, if
any);
(j) expenses connected with payments of dividends or interest
or contributions in cash or any other form made or caused to be made by
the trust managers to holders of securities of the Company;
(k) all expenses connected with communications to holders of
securities of the Company and other bookkeeping and clerical work
necessary to maintaining relations with holders of securities,
including the cost of printing and mailing certificates for securities
and proxy solicitation materials and reports to holders of the Company
securities;
(l) transfer agent's, registrar's and indenture trustee's fees
and charges;
(m) legal, accounting and auditing fees and expenses; and
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(n) expenses relating to any office or office facilities
maintained by the Company separate from the office of the Investment
Manager.
If the Company uses the services of attorneys or paraprofessionals on the staff
of the Investment Manager in lieu of outside counsel for purposes other than the
performance of the services to be performed by the Investment Manager hereunder,
the Company will reimburse the Investment Manager for such services at hourly
rates calculated to cover the cost of such services, as well as for incidental
disbursements.
6. RECEIPT OF FEES
All fees that may be paid to the Investment Manager by any person in
connection with any investment transaction in which the Company participates or
proposes to participate shall be paid over or credited to the Company at the
time such investment transaction is consummated. The Investment Manager may, on
the other hand, retain for its own account any fees paid to it by any such
person for any services rendered to such person which is not related to any such
investment transaction. For this purpose, any fees paid for services rendered by
attorneys on the staff of the Investment Manager in connection with any such
investment transaction shall be treated as transaction costs and shall not be
deemed to be fees paid to the Investment Manager in connection with any
investment transaction. The Investment Manager will report to the Company's
trust managers not less often than quarterly all fees received by the Investment
Manager from any source whatever and whether, in its opinion, any such fee is
one that the Investment Manager is entitled to retain under the provisions of
this Section 7. In the event that any trust manager should disagree, the matter
shall be conclusively resolved by a majority of the trust managers of the
Company, including a majority of the Independent Trust Managers.
8. COMPENSATION OF THE INVESTMENT MANAGER
As the Investment Manager's sole and exclusive compensation for its
services to be rendered pursuant to the terms set out above, the Company will,
during the term of this Agreement, pay to the Investment Manager the following
fees, beginning as of the date of this Agreement:
I. Quarterly in arrears, a fee ("BASE FEE") consisting of a
quarterly servicing and advisory fee equal to the sum of (a)
the product of 0.3875% (1.55% on an annual basis) multiplied
by the lesser of (i) the Average Quarterly Value of Common
Equity Capital or (ii) the Average Quarterly Value of All
Invested Assets and (b) the product of 0.10% (0.40% on an
annual basis) and the difference between the Average Quarterly
Value of All Invested Assets and the Average Quarterly Value
of Common Equity Capital. Notwithstanding the foregoing or any
other provision contained herein, the Base Fee payable to the
Investment Manager hereunder shall be reduced for each quarter
during the term of this Agreement by an amount equal to the
amount of servicing or supervisory servicing fees, if any,
required to be paid for such quarter by the Company to any
third party which is unaffiliated with the Company or the
Investment Manager for the servicing of any Invested Assets.
For purposes of calculating the Base Fee, the Average
Quarterly Value of Common Equity Capital shall not be
increased by the proceeds received from any public offering of
Common Shares by the Company (other than pursuant to the
Company's dividend reinvestment plan or any employee/trust
manager benefit plan) during the 180 calendar day period
immediately following such public offering.
II. Quarterly in arrears, a consulting fee equal to the sum of
(a) the product of 50% multiplied by the amount of fees
contractually due to any third party assisting in the
placement of any of the Company's debt securities or preferred
shares of beneficial interest and (b) the product of 12.5%
multiplied by the amount of any fees contractually due any
third party assisting in the placement or underwriting of any
private or public offering of Common Shares (the "OFFERING
FEE"). If the Offering Fee is less than 5.5%, the consulting
fee shall be increased by an amount equal to the product of
(i) 50% of the difference between 5.5% and the actual Offering
Fee multiplied by (ii) the gross proceeds of the offering.
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III. Quarterly in arrears, an origination fee (the
"ORIGINATION FEE") equal to the product of 0.005 (1/2%)
multiplied by the first $20 million in loans funded during a
one year period. Thereafter, the origination fee shall be
equal to the product of 0.0025 (1/4%) multiplied by the
dollar amount of loans funded for the remainder of that one
year period.
IV. A fee in the amount of ten thousand dollars ($10,000) due
and payable upon the sale of any Amerihost property.
9. INDEMNIFICATION OF THE INVESTMENT MANAGER
The Company confirms that in performing services hereunder the
Investment Manager (including its directors, officers and employees) will be an
agent of the Company for the purpose of the indemnification provisions of the
Company's Declaration of Trust, as amended, and Bylaws, subject, however, to the
same limitations as though the Investment Manager were a director or officer of
the Company. The Investment Manager shall not be liable to the Company, its
shareholders or its creditors except for violations of law or for conduct which
would preclude the Investment Manager from being indemnified under such
provisions.
10. TERM OF THE AGREEMENT; TERMINATION
The term of this Agreement shall commence as of the first day of July
2002 and shall remain in effect and is renewable annually thereafter by the
Company, if (a) a majority of the Independent Trust Managers determines that (i)
the Investment Manager's performance has been satisfactory and (ii) the terms of
this Agreement are appropriate with respect to the Company's performance and
then existing economic conditions and (b) a majority of the independent
directors of the Investment Manager approve the renewal of this Agreement.
Notwithstanding any other provision of this Agreement to the contrary,
this Agreement, or any extension thereof, may be terminated by either party
thereto upon at least sixty (60) days' notice to the other party specifying the
effective date of such termination, pursuant to a majority vote of the
Independent Trust Managers or upon the vote of the holders of more than
two-thirds of the outstanding shares of the Company, or, in the case of a
termination by the Investment Manager, by a majority vote of the independent
directors of the Investment Manager.
In the event this Agreement is terminated or not renewed by (i) the
Company, other than as a result of a material breach of the terms of this
Agreement by the Investment Manager, or (ii) the Investment Manager as a result
of a material breach of the terms of this Agreement by the Company, PMC Capital
shall enter into a non-compete agreement, substantially in the form attached
hereto as Exhibit B, which shall have a term of seven (7) years following the
Termination Date (the "NON-COMPETE AGREEMENT"). The payment to be made by the
Company to PMC Capital as consideration for the Non-Compete Agreement entered
into as a result of in the occurrence of any event set forth in clause (i) or
(ii) in the preceding sentence shall be an amount equal to the product of the
Non-Compete Percentage (as hereinafter defined) multiplied by the Average Annual
Value of All Invested Assets at Date of Termination, calculated and payable on
an annual basis and prorated on the basis of a 360-day year for any portion of a
calendar year during which the Non-Compete Agreement is in effect. In the event
this Agreement is terminated or not renewed by (x) the Company as a result of a
material breach of the terms of this Agreement by the Investment Manager or (y)
the Investment Manager, other than as a result of a material breach of the terms
of this Agreement by the Company, PMC Capital shall enter into the Non-Compete
Agreement either on the terms and conditions provided herein and in Exhibit B
hereto or, at the Company's option, such other terms as may be mutually
agreeable to PMC Capital and the Company. The "Non-Compete Percentage" shall be
equal to 1% less the amount of the percentage, determined by dividing the dollar
amount of loan losses on the Invested Assets at Date of Termination in any year
(or portion thereof) during which the Non-Compete Agreement is in effect (as
determined based on the audited financial statements of the Company for that
year), by the Average Annual Value of All Invested Assets at Date of Termination
for such year, in excess of 1%. In no event will the annual fee payable pursuant
to the Non-Compete Agreement be reduced below zero. Notwithstanding anything
contained in this Section 10 to the contrary, in the event that, following the
Termination Date, the Company has foreclosed on an outstanding loan and has
liquidated the collateral relating thereto and otherwise exhausted all remedies
available to it to collect any remaining deficiency on such obligation, the
Company shall, upon written request of the Investment Manager, transfer to the
Investment Manager all files related to such loan. If the Investment Manager is
successful
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in collecting any additional amount of the deficiency it may retain 1% of such
additional amount and shall return the remainder to the Company.
11. ASSIGNMENT, AMENDMENTS AND WAIVERS
The Company may terminate this Agreement at any time in the event of
its assignment by the Investment Manager except an assignment to a corporation,
association, trust or other successor organization which may take over the
property and carry on the affairs of the Investment Manager, provided that
following such assignment the Persons who controlled the operations of the
Investment Manager on the date such Investment Manager became an advisor to the
Company shall control the operation of the successor organization, including the
performance of its duties under this Agreement, and they shall be bound by the
same restrictions by which they were bound prior to such assignment; however, if
at any time subsequent to such an assignment such Persons shall cease to control
the operations of the successor organization, the Company may thereupon
terminate this Agreement. Such an assignment or any other assignment of this
Agreement by the Investment Manager shall bind the assignee hereunder in the
same manner as the Investment Manager is bound hereunder. This Agreement shall
not be assignable by the Company without the prior written consent of the
Investment Manager, except in the case of any assignment by the Company to a
Person which is the successor to the Company, in which case such successor shall
be bound hereby and by the terms of said assignment in the same manner and to
the same extent as the Company is bound hereby. Any successor organization that
is a permitted assignee under this Section 11, whether a successor to the
Investment Manager or to the Company, shall be obligated to execute such
agreements, certificates or other documents as the nonassigning party shall
reasonably request to evidence that such successor organization is bound hereby.
This Agreement may not be amended, supplemented or discharged, and none
of its provisions may be modified, except expressly by an instrument in writing
signed by the party to be charged, provided that, in the case of the Company,
such amendment, supplement, discharge or modification must be approved by a
majority vote of the Independent Trust Managers or by a vote of the holders of
more than two-thirds of the outstanding shares of the Company and, in the case
of the Investment Manager, such amendment, supplement, discharge or modification
must be approved by a majority vote of the independent directors of the
Investment Manager. Any term or provision of this Agreement may be waived, but
only in writing by the party which is entitled to the benefit of that provision.
No waiver by any party of any default with respect to any provision, condition
or requirement hereof shall be deemed to be a continuing waiver in the future
thereof or a waiver of any other provision, condition or requirement hereof; nor
shall any delay or omission of any party to exercise any right hereunder in any
manner impair the exercise of any such right accruing to it thereafter.
12. OTHER ACTIVITIES OF INVESTMENT MANAGER
Nothing herein shall prevent the Investment Manager or its Affiliates
from engaging in other activities or businesses or from acting as advisor to any
other Person (including other real estate investment trusts) or from managing
other investments including those of investors or investments advised, sponsored
or organized by the Investment Manager even though such Person has investment
policies and objectives similar to those of the Company; provided, however, that
the Investment Manager shall notify the Company in writing in the event that it
does so act (or intends to so act) as an advisor to another real estate
investment trust. The Investment Manager may also render such services to joint
ventures and partnerships in which the Company is a co-venturer or partner and
to the other entities in such joint ventures and partnerships. Except with
respect to loan origination opportunities allocated pursuant to the Loan
Origination Agreement, the Investment Manager shall be free from any obligation
to present to the Company any particular investment opportunity which comes to
the Investment Manager. In addition, nothing herein shall prevent any
shareholder or Affiliate of the Investment Manager from engaging in any other
business or from rendering services of any kind to any other corporation,
partnership or other entity (including competitive business activities).
Directors, officers, employees and agents of the Investment Manager or
of its Affiliates may serve as trust managers, officers, employees, agents,
nominees or signatories of the Company. When executing documents or otherwise
acting in such capacities for the Company, such persons shall use their
respective titles in the Company. Such persons shall receive from the Company no
compensation for their services to the Company in such capacities.
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13. BANK ACCOUNTS
The Investment Manager shall establish and maintain one or more bank
accounts in its own name or, at the direction of the trust managers, in the name
of the Company, and shall collect and deposit into such account or accounts and
disburse therefrom any monies on behalf of the Company, provided that no funds
in any such account shall be commingled with any funds of the Investment Manager
or any other Person. The Investment Manager shall from time to time render an
appropriate accounting of such collections and payments to the trust managers
and to the auditors of the Company.
14. PROTECTION OF INVESTMENTS
The Investment Manager shall use its efforts, in cooperation with the
legal counsel to the Company, as deemed appropriate in the Investment Manager's
reasonable discretion, (a) to verify title to or procure title insurance in
respect of any property in which the Company makes or proposes to make any
investment; (b) to verify that any mortgage securing any Investment of the
Company shall be a valid lien upon the mortgaged property according to its
terms; that any insurance or guaranty issued by the Federal Housing Authority,
the Veterans Administration or any similar agency of the United States or
Canada, or any subdivision thereof, or any private mortgage insurance company,
upon which the trust managers rely, is valid and in full force and effect and
enforceable according to its terms; and that any commitments to provide
permanent financing on property with respect to which the Company is furnishing
interim loans are satisfactory; and (c) to carry on the policies from time to
time specified by the trust managers with regard to the protection of the
Company's Investments.
15. RECORDS
The Investment Manager shall maintain appropriate books of account and
records relating to services performed pursuant hereto, which books of account
and records shall be available for inspection by representatives of the Company
upon reasonable notice during normal business hours.
16. REIT QUALIFICATION
Anything else in this Agreement to the contrary notwithstanding, the
Investment Manager shall not take any action (including, without limitation,
furnishing or rendering services to tenants of property or managing real
property), which action, in its judgment made in good faith, or in the judgment
of the trust managers as transmitted to the Investment Manager in writing, would
(a) adversely affect the status of the Company as a real estate investment trust
as defined and limited in the Code or which would make the Company subject to
the Investment Company Act of 1940, as amended, if not in the best interest of
the Company's shareholders or (b) violate any law, rule, regulation or statement
of policy of any government body or agency having jurisdiction over the Company
or over its securities, or (c) otherwise not be permitted by the Declaration of
Trust, as amended, or Bylaws of the Company, except if such action shall be
ordered by the trust managers, in which event the Investment Manager shall
promptly notify the trust managers of the Investment Manager's judgment that
such action or omission to act would adversely affect such status or violate any
such law, rule or regulation or the Declaration of Trust, as amended, or Bylaws
of the Company and shall refrain from taking such action pending further
clarification or instructions from the trust managers. In addition, the
Investment Manager shall take such affirmative steps which, in its good faith
judgment, or in the judgment of the trust managers as transmitted to the
Investment Manager in writing, would prevent or cure any action described in
(a), (b) or (c) above.
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17. SELF-DEALING
Neither the Investment Manager nor any Affiliate of the Investment
Manager shall sell any property or assets to the Company or purchase any
property or assets from the Company, directly or indirectly, except as approved
by a majority of the Independent Trust Managers, provided that any Person
wholly-owned (directly or indirectly) by the Company may sell property or assets
to the Company or purchase assets from the Company without such approval. In
addition, except as approved by a majority of the Independent Trust Managers,
neither the Investment Manager nor any Affiliate of the Investment Manager shall
receive any commission or other remuneration, directly or indirectly, in
connection with the activities of the Company (except as expressly provided
herein) or any joint venture or partnership in which the Company is a party,
unless such joint venture or partnership is wholly-owned (directly or
indirectly) by the Company. Except for compensation received by the Investment
Manager pursuant to Section 8 hereof, all commissions or other remuneration
received by the Investment Manager or an Affiliate of the Investment Manager and
not approved by the Independent Trust Managers under this Section 17 shall be
reported to the Company annually within ninety (90) days following the end of
the Company's fiscal year.
18. NO PARTNERSHIP OR JOINT VENTURE
The Company and the Investment Manager are not partners or joint
venturers with each other and neither the terms of this Agreement nor the fact
that the Company and the Investment Manager have joint interest in any one or
more investments shall be construed so as to make them such partners or joint
venturers or impose any liability as such on either of them.
19. FIDELITY BOND
The Investment Manager shall not be required to obtain or maintain a
fidelity bond in connection with the performance of its services hereunder.
20. JURISDICTION
This Agreement shall be governed by the laws of Texas.
21. LIMITATION OF LIABILITY
The Declaration of Trust establishing the Company (the "Declaration"),
a copy of which is duly filed with the County Clerk for Dallas County, Texas,
provides that the name "PMC Commercial Trust" refers to the trust managers under
the Declaration collectively as trust managers, but not individually or
personally; and that no trust manager, officer, shareholder, employee or agent
of the Company or its subsidiaries shall be held to any personal liability,
jointly or severally, for any obligation of, or claim against, the Company or
its subsidiaries. All persons dealing with the Company, in any way, shall look
only to the assets of the Company for the payment of any sum or the performance
of any obligations. Notwithstanding the foregoing, the Investment Manager hereby
acknowledges and agrees that it shall look only to the assets of the Company for
the payment of any sum or performance of any obligations due by or from the
Company pursuant to the terms and provisions hereof. Furthermore, except as
otherwise expressly provided herein, in no event shall the Company (original or
successor) ever be liable to the Investment Manager for any indirect or
consequential damages suffered by the Investment Manager from whatever cause.
22. SURVIVAL OF OBLIGATIONS
The obligations of the Company, PMC Capital and the Investment Manager
set forth in Section 10 hereof shall survive any termination or non-renewal of
this Agreement for a period of seven (7) years following the Termination Date.
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IN WITNESS WHEREOF, the parties have executed this Agreement effective
as of the date first above written.
PMC COMMERCIAL TRUST
By: /s/ Lance B. Rosemore
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Lance B. Rosemore
President
PMC ASSET MANAGEMENT, INC.
By: /s/ Lance B. Rosemore
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Lance B. Rosemore
President
PMC CAPITAL, INC.
By: /s/ Lance B. Rosemore
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Lance B. Rosemore
President
-10-
LOAN ORIGINATION AGREEMENT
This Loan Origination Agreement dated as of July 1, 2002 (this
"AGREEMENT") is made and entered into by and among PMC Commercial Trust, a Texas
real estate investment trust (the "COMPANY"), PMC Asset Management, Inc., a
Texas corporation (the "INVESTMENT MANAGER") and a wholly-owned subsidiary of
PMC Advisers, Ltd. a Texas limited partnership ("PMC ADVISERS"), and PMC
Capital, Inc., a Florida corporation ("PMC CAPITAL").
WHEREAS, management of PMC Capital believes that loan origination
opportunities exist for loans that generally conform to the lending criteria and
customer profile of PMC Capital's lending business, but that involve borrowers
that exceed SBA eligibility requirements or that exceed the lending capacity of
PMC Capital to fund; and
WHEREAS, the Company was organized as a result of the decision of the
board of directors of PMC Capital that the amount of capital required to fund
the types of investments contemplated by a Company is not available to PMC
Capital without significant dilution to existing shareholders of PMC Capital or
substantial leverage, if at all; and
WHEREAS, the board of directors of PMC Capital determined that the
creation of the Company as a separate entity to originate such loans was
appropriate; and
WHEREAS, the board of directors of PMC Capital also determined that the
shareholders of PMC Capital would benefit by establishing the Investment Manager
as an indirect wholly owned subsidiary of PMC Capital in order to more fully
utilize the in-house staff and facilities of PMC Capital while providing the
shareholders of PMC Capital the benefit of the advisory fees to be paid to the
Investment Manager; and
WHEREAS, the Company, the Investment Manger and PMC Capital desire to
define a system which will determine whether the Company or PMC Capital shall
have the right to make any proposed loan, as such opportunities arise from time
to time;
NOW, THEREFORE, in consideration of the mutual agreements and covenants
herein contained, the parties hereto agree as follows:
SECTION 1. DEFINITIONS
Defined terms in this Agreement shall include in the singular number
the plural and in the plural number the singular.
"Industry Concentration Limits" shall mean the limitations on
loans made within a particular industry applicable to PMC Capital or
its subsidiaries, which are a part of PMC Capital's fundamental
policies enumerated in its SEC filing as such may be amended from time
to time.
"SBA" shall mean the United States Small Business
Administration.
"SBIC" shall have the meaning ascribed to such term in the
Underwritten Offering.
"Underwritten Offering" shall mean the initial public offering
of the Company pursuant to the Company's registration statement on Form
S-11, number 33-65010 as filed with the Securities and Exchange
Commission.
SECTION 2. DETERMINATION OF LOAN OPPORTUNITIES
The Company, the Investment Manager and PMC Capital hereby agree that
upon completion of the Underwritten Offering, to the extent that the Company has
funds available to make a proposed loan, no loans will be made by PMC Capital
other than (i) loans in an original principal amount not exceeding $1,333,000
made pursuant to the SBA Section 7(a) or SBIC loan programs utilized by PMC
Capital's subsidiaries and (ii) bridge loans to be refinanced by SBA Section
7(a) or SBIC loans upon approval of the SBA loan application. The criteria to be
used by the Investment Manager for determination of how loan origination
opportunities are allocated between the Company and PMC Capital is further
illustrated in the flowchart attached hereto as Annex A.
SECTION 3. MISCELLANEOUS
3.1 Governing Law; Submission to Jurisdiction. This Agreement and the
rights and obligations of the parties hereunder shall be construed in accordance
with and be governed by the laws of the State of Texas.
3.2 Waivers and Amendments. None of the terms or provisions of this
Agreement may be waived, amended, supplemented or otherwise modified except by a
written instrument executed by the Company, the Investment Manager and PMC
Capital.
3.3 Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the Company, the Investment Manger and PMC Capital and
any of their respective successors and assigns, except that no party may assign
this Agreement without prior written consent of the other parties.
IN WITNESS HEREOF, each party hereto has caused its duly authorized
officer to execute and deliver this Agreement as of the date first above
written.
PMC COMMERCIAL TRUST
By: /s/ Lance B. Rosemore
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Lance B. Rosemore
President
PMC ASSET MANAGEMENT, INC.
By: /s/ Lance B. Rosemore
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Lance B. Rosemore
President
PMC CAPITAL, INC.
By: /s/ Lance B. Rosemore
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Lance B. Rosemore
President