Exhibit 10.24
AMENDMENT NO. 1 AND CONSENT TO REVOLVING CREDIT AGREEMENT
AMENDMENT AND CONSENT (this "Amendment"), dated as of June 29, 2007, among FH
PARTNERS, L.P., a Texas limited partnership (the "Borrower"), the financial
institutions which are parties to the Agreement hereinafter referred to (each a
"Lender" and collectively, the "Lenders"), and BANK OF SCOTLAND, as agent for
the Lenders (in such capacity, the "Agent") under the Revolving Credit
Agreement, dated as of August 26, 2005, among the Borrower, the Lenders and the
Agent (the "Agreement").
W I T N E S S E T H:
WHEREAS, the Borrower has requested that certain amendments set forth herein be
made to the Agreement;
WHEREAS, subject to the terms and conditions contained below, the Agent and the
Lenders are willing to so 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)
SECTION 8A(A).
CLAUSES (I) AND (II) OF SECTION 8A(A) OF THE
AGREEMENT ARE AMENDED AND RESTATED TO READ IN THEIR ENTIRETIES AS FOLLOWS:
"(i) maintain a ratio of Indebtedness to Tangible Net Worth equal to or less
than 3.50 to 1.00 for the last day of the fiscal quarter then ended; and
(ii) maintain a ratio of EBITDA to Interest Coverage not less than 1.50 to 1.00
for the four fiscal quarters then ended; and"
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4.
CONSENT.
SECTION 8.4 OF THE AGREEMENT PROHIBITS THE BORROWER FROM
ASSIGNING, SELLING OR TRANSFERRING ANY OF ITS ASSETS TO ANY PERSON, OTHER THAN
IN THE ORDINARY COURSE OF BUSINESS AND FOR FAIR AND ADEQUATE CONSIDERATION.
SECTION 8.20 OF THE AGREEMENT PROHIBITS THE BORROWER FROM ENGAGING IN
TRANSACTIONS WITH AFFILIATES UNLESS THE TRANSACTION IS NO LESS FAVORABLE TO THE
BORROWER THAN WOULD BE OBTAINED IN A COMPARABLE ARM'S LENGTH TRANSACTION.
THE
BORROWER HAS REQUESTED THAT THE LENDERS CONSENT TO THE SALE OF EIGHT (8) LOANS
IDENTIFIED TO THE AGENT TO MPORTFOLIO CORPORATION, A 100% OWNED DIRECT
SUBSIDIARY OF FC COMMERCIAL, FOR $7,542,363.
IN RELIANCE UPON THE
REPRESENTATIONS, WARRANTIES AND AGREEMENTS SET FORTH HEREIN, THE LENDERS HEREBY
CONSENT TO THE SALE OF SUCH EIGHT (8) LOANS TO MPORTFOLIO CORPORATION.
5.
REPRESENTATIONS.
IN ORDER TO INDUCE THE AGENT AND THE LENDERS TO EXECUTE