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Exhibit 10.3
AMENDMENT NO. 7
Amendment No. 7 (this "Amendment"), dated as
of December 12, 2008, among FH Partners LLC, a Texas limited
liability company (the "Borrower") and the financial institutions
(each a "Lender" and collectively, the "Lenders") party to that
certain Revolving Credit Agreement, dated as of August 26,
2005 (as heretofore amended or otherwise modified, the "Loan
Agreement"), among the Borrower, the Lenders and Bank of Scotland
plc, as Agent for the Lenders (the "Agent").
W I T N E
S S E T H :
WHEREAS, the Borrower anticipates receiving cash proceeds from a
judgment in certain litigation in which the Borrower has been
engaged; and
WHEREAS, the Borrower has requested that certain amendments set
forth herein be made to the Agreement to reflect certain agreements
the Lenders and the Borrower have reached, including with respect
to the treatment of the proceeds from such litigation; and
WHEREAS, subject to the terms and conditions contained below,
the Agent and the Lenders are willing so to amend the
Agreement;
NOW, THEREFORE, it is agreed:
1.
Definitions . All terms used herein which are defined
in the Agreement (including, to the extent any such terms are to be
added or amended by this Amendment, as if such terms were already
added or amended by this Amendment, unless the context shall
otherwise indicate) shall have the same meanings when used herein
unless otherwise defined herein. All references to Sections
in this Amendment shall be deemed references to Sections in the
Agreement unless otherwise specified.
2.
Effect of Amendment . As used in the Agreement
(including all Exhibits thereto), the Notes and the other Loan
Documents and all other instruments and documents executed in
connection with any of the foregoing, on and subsequent to the
Amendment Closing Date (as hereinafter defined), any reference to
the Agreement shall mean the Agreement as amended hereby.
3.
Amendments . The Agreement is hereby amended as
follows:
(a)
Annex I . Annex I to the Agreement is amended as
follows:
(i)
by restating in its entirety the definition of "Base Rate" therein
to read as follows:
" Base Rate " shall mean, for any day, a fluctuating
rate per annum equal to the highest of (a) the Federal Funds
Rate in effect for such day plus 1/2 of 1%; (b) the rate of
interest in effect for such day as publicly announced
by the Agent from time to time as its "prime rate"; and
(c) the Adjusted One Month LIBOR Rate in effect for such day
plus 1%. Any change in the Federal Funds Rate, the
Agent’s "prime rate", or the Adjusted One Month LIBOR Rate
shall be reflected in the Base Rate on the first Business Day such
change in the Federal Funds Rate, the Agent’s "prime rate" or
the Adjusted One Month LIBOR Rate, as the case may be, becomes
effective without any requirement for the Agent to give notice of
such change in rate to the Borrower.
(ii)
by inserting the following new definitions therein in appropriate
alphabetical order therein:
" Adjusted One Month LIBOR Rate " shall mean, for any
day, the rate per annum equal to the British Bankers Association
LIBOR Rate ("BBA LIBOR"), as published by Reuters (or other
commercially available source providing quotations of BBA LIBOR as
designated by the Administrative Agent from time to time) at
approximately 11:00 a.m., London time on such day for Dollar
deposits with a one month term.
" Litigation " shall mean Prudential
Financial, Inc. v. JP Morgan Chase Bank, National Association,
et. al .
" Litigation Net Proceeds " shall mean the cash received
by the Borrower from time to time as a result of a settlement of
the Litigation, less costs, expenses, including, without
limitation, attorneys’ fees, incurred by the Borrower in
connection with the Litigation.
(b)
Section 8.18 . Section 8.18(a)(i) and
Section 8.18(a)(iii) of the Agreement are amended and
restated in their entirety to read as follows:
(i) maintain a ratio of Indebtedness to
Tangible Net Worth equal to or less than 5.25 to 1.00 for the last
day of the fiscal quarter then ended; provided that such ratio
shall reduce to 5.00 to 1.00 effective upon the Borrower’s
certification to the Lenders, and the Lenders’ written
approval of such certification, that the Borrower has received
Litigation Net Proceeds of at least $3,500,000;
(iii) maintain a Tangible Net Worth equal to
or greater than $50,000,000 (the "Base") for the last day of the
fiscal quarter then ended; provided that the Base shall be
increased from time to time by the amount of Litigation Net
Proceeds certified as received by the Borrower (and the Borrower
covenants to provide such certification promptly after receipt of
Litigation Net Proceeds from time to time), such increase to be
effective on and as of the Lenders’ written approval of such
certification.
4.
Representations . In order to induce the Agent and the
Lenders to execute this Amendment, the Borrower hereby represents,
warrants and covenants to the Agent and the Lenders as of the date
hereof and (if different) as of the Amendment Closing Date
(which
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representations, warranties and covenants shall
survive the execution, delivery and effectiveness of this
Amendment) as follows:
(a)
No Default or Event of Default exists nor, after giving effect to
the consents contained herein, will any Default or Event of Default
arise.
(b)
Each representation and warranty made by the Borrower in the Loan
Documents is true and correct.
(c)
The execution and delivery of this Amendment by the Borrower and
the consummation of the transactions contemplated herein have been
duly authorized by all necessary corporate action.
(d)
This Amendment is the legal, valid and binding obligation of the
Borrower, enforceable in accordance with its terms subject, as to
enforceability, to applicable bankruptcy, insolvency,
reorganization and similar laws affecting the enforcement of
creditors’ rights generally and to general principles of
equity (regardless of whether such enforcemen
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