WITH AFFILIATES UNLESS THE
TRANSACTION IS NO LESS FAVORABLE TO THE BORROWER OR SUCH SUBSIDIARY THAN WOULD
BE OBTAINED IN A COMPARABLE ARM'S LENGTH TRANSACTION.
IN RELIANCE UPON THE REPRESENTATIONS, WARRANTIES AND AGREEMENTS SET FORTH
HEREIN, THE AGENT HEREBY CONSENTS TO (A) TO THE SALE OF SUCH EIGHT (8) LOANS BY
FH PARTNERS, L.P. TO MPORTFOLIO CORPORATION AND (B) THE FNBCT INDEBTEDNESS
CONSTITUTING AN APPROVED PORTFOLIO LEVERAGE RATIO.
5.
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 REPRESENTATIONS, WARRANTIES AND COVENANTS SHALL
SURVIVE THE EXECUTION, DELIVERY AND EFFECTIVENESS OF THIS AMENDMENT) AS FOLLOWS:
(A)
NO DEFAULT OR EVENT OF DEFAULT EXISTS.
(B)
EACH REPRESENTATION AND WARRANTY MADE BY BORROWER, EACH PRIMARY
OBLIGOR, EACH PORTFOLIO ENTITY, EACH RELATED ENTITY AND EACH OTHER LOAN PARTY 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.
4
(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 ENFORCEMENT IS CONSIDERED IN A
PROCEEDING IN EQUITY OR AT LAW).
(E)
NO MATERIAL ADVERSE CHANGE HAS OCCURRED SINCE MARCH 31, 2007.
(F)
THE PROCEEDS OF THE FNBCT INDEBTEDNESS WILL BE USED TO PURCHASE
EIGHT LOANS FROM FH PARTNERS, L.P.
(G)
NO PERSON OTHER THAN MPORTFOLIO HAS GRANTED OR WILL GRANT ANY LIEN
TO SECURE THE REPAYMENT OF THE FNBTC INDEBTEDNESS.
(H)
NO PERSON HAS ISSUED OR WILL ISSUE ANY GUARANTY EQUIVALENT OR ANY
OTHER INDEMNITY IN RESPECT OF THE FNBCT INDEBTEDNESS OR OTHERWISE HAS BECOME OR
WILL BECOME LIABLE IN ANY WAY IN RESPECT THEREOF..
(I)
PROMPTLY FOLLOWING THE AMENDMENT CLOSING DATE, THE BORROWER SHALL
DELIVER TO THE AGENT A COPY OF THE LOAN AGREEMENT BETWEEN MPORTFOLIO AND FNBCT
AND ALL OTHER AGREEMENTS ENTERED INTO AND INSTRUMENTS DELIVERED IN CONNECTION
THEREWITH, CERTIFIED BY AN EXECUTIVE OFFICER AS CONSTITUTING TRUE AND COMPLETE
COPIES OF ALL SUCH AGREEMENTS AND INSTRUMENTS.
5.
EFFECTIVENESS.
THIS AMENDMENT SHALL BECOME EFFECTIVE WHEN EACH OF THE
FOLLOWING CONDITIONS HAVE BEEN FULFILLED TO THE SATISFACTION OF THE AGENT (OR
WAIVED BY THE AGENT).
(A)
SIGNED COPIES.
THE BORROWER, THE LENDERS AND THE AGENT SHALL HAVE
EXECUTED A COPY HEREOF AND DELIVERED THE SAME TO THE AGENT AT 565 FIFTH AVENUE,
NEW YORK, NEW YORK 10017 (ATTENTION:
JOSEPH FRATUS) OR SUCH OTHER PLACE
DIRECTED BY THE AGENT.
(B)
GUARANTOR'S CONSENT.
EACH GUARANTOR SHALL HAVE EXECUTED A
CONFIRMING CONSENT, SUBSTANTIALLY IN THE FORM ATTACHED HERETO AS ANNEX A OR
OTHERWISE SATISFACTORY TO THE AGENT (A "CONFIRMING CONSENT"), AND DELIVERED THE
SAME TO THE AGENT AT 565