Exhibit 10.3
AMENDMENT AND CONSENT NO. 5 TO REVOLVING CREDIT AGREEMENT
AMENDMENT AND CONSENT NO. 5 (this "Amendment and Consent"), dated as of May 8,
2008, among FH PARTNERS LLC, a Texas limited liability company (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 (as heretofore amended or otherwise modified, the
"Agreement").
W I T N E S S E T H:
WHEREAS, the Borrower has requested (i) that the Lenders amend the Agreement to
delete Section 8A(a)(ii) thereof and (ii) that the Lenders consent to waive
compliance with the requirements of such Section for the fiscal quarter ended
March 31, 2008; and
WHEREAS, the Lenders are willing to consent to the foregoing on and subject to
the terms hereof;
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 AND CONSENT, AS IF SUCH TERMS WERE ALREADY ADDED OR AMENDED BY THIS
AMENDMENT AND CONSENT, 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 AND CONSENT 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.
REPRESENTATIONS.
IN ORDER TO INDUCE THE AGENT AND THE LENDERS TO EXECUTE
THIS AMENDMENT AND CONSENT, 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 AND CONSENT) AS FOLLOWS:
(A)
NO DEFAULT OR EVENT OF DEFAULT EXISTS.
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(B)
EACH REPRESENTATION AND WARRANTY MADE BY BORROWER AND EACH OTHER
LOAN PARTY IN THE LOAN DOCUMENTS IS TRUE AND CORRECT.
(C)
THE EXECUTION AND DELIVERY OF THIS AMENDMENT AND CONSENT BY THE
BORROWER AND THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREIN HAVE BEEN
DULY AUTHORIZED BY ALL NECESSARY CORPORATE ACTION.
(D)
THIS AMENDMENT AND CONSENT 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