UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM 8-K

 

CURRENT REPORT

PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934

 

Date of Report (Date of earliest event reported): March 26, 2010

 

FIRSTCITY FINANCIAL CORPORATION

(Exact name of registrant as specified in its charter)

 

 

 

Registrant’s telephone number, including area code: (254) 761-2800

 

Not applicable

(Former name or former address, if changed since last report)

 

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligations of the registrant under any of the following provisions:

 

o            Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

o            Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

o            Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

o            Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

 

 

Section 1 - Registrant’s Business and Operations

 

Item 1.01.   Entry into a Material Definitive Agreement.

 

Amendment to FirstCity Revolving Credit Agreement.

 

On March 26, 2010, FirstCity Financial Corporation (“FirstCity”) and Bank of Scotland plc, as agent for the lenders and as lender, entered into Amendment No. 33 dated March 26, 2009, to the Revolving Credit Agreement dated November 12, 2004 to amend the definition of “Maturity Date” to mean April 1, 2011. The Amendment provides for payment of an amendment fee by FirstCity in the amount of $492,879. The foregoing description of Amendment No. 33 is qualified in its entirety by reference to the full text of Amendment No. 33 attached hereto as Exhibit 10.1 and is incorporated herein by this reference.

 

Amendment to FirstCity Subordinated Delayed Draw Credit Agreement.

 

On March 26, 2010, FirstCity and BoS(USA) Inc., as agent for the lenders and as lender, entered into Amendment No. 20 dated March 26, 2010, to the Subordinated Delayed Draw Credit Agreement dated as of September 5, 2007 to amend the definition of “Maturity Date” to mean April 1, 2011. The Amendment provides for payment of an amendment fee by FirstCity in the amount of $62,500. The foregoing description of Amendment No. 20 is qualified in its entirety by reference to the full text of Amendment No. 20 attached hereto as Exhibit 10.2 and is incorporated herein by this reference.

 

Amendment to FH Partners LLC Revolving Credit Agreement.

 

On March 26, 2010, FH Partners LLC, a wholly-owned subsidiary of FirstCity, and Bank of Scotland plc, as agent for the lenders and as lender, entered into Amendment No. 9 dated March 26, 2010, to the Revolving Credit Agreement dated as of August 26, 2005 to amend the definition of “Maturity Date” to mean April 1, 2011. The Amendment provides for payment of an amendment fee by FH Partners LLC in the amount of $127,121. The foregoing description of Amendment No. 9 is qualified in its entirety by reference to the full text of Amendment No. 9 attached hereto as Exhibit 10.3 and is incorporated herein by this reference.

 

Nature of Material Relationship with Bank of Scotland plc

 

FirstCity has had a significant relationship with Bank of Scotland plc (“Bank of Scotland”) and The Governor and The Company of the Bank of Scotland (“BoS-UK”) and their subsidiaries since September 1997. Since 1997, Bank of Scotland and certain of its affiliates have provided credit facilities to FirstCity and its wholly-owned subsidiaries.

 

Bank of Scotland provides FirstCity and its subsidiaries a loan facility under a revolving credit agreement to finance the senior debt and equity portion of portfolio and asset purchases, provide for the issuance of letters of credit, and for working capital loans. The maximum available commitment under this revolving credit facility is $225.0 million. This facility is secured by substantially all of the assets of FirstCity and certain of its wholly-owned subsidiaries, and guaranteed by substantially all of the wholly-owned subsidiaries of FirstCity.

 

FH Partners LLC has a $100.0 million revolving credit facility with Bank of Scotland to finance portfolio and asset purchases consummated by FH Partners LLC. This facility is secured by all assets of FH Partners LLC and guaranteed by FirstCity and certain of its wholly-owned subsidiaries.

 

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FirstCity has a $25.0 million subordinated credit agreement with BoS (USA) Inc. which may be used to finance equity investments in new ventures, equity investments made in connection with portfolio and asset purchases and loans made by FirstCity and its subsidiaries to acquisition entities, provide for the issuance of letters of credit, and for working capital loans. This credit agreement is guaranteed by substantially all of the wholly-owned subsidiaries of FirstCity and secured by substantially all of the assets of FirstCity and its wholly-owned subsidiaries.

 

Section 9 — Financial Statements and Exhibits

 

Item 9.01.   Financial Statements and Exhibits.

 

(d)           Exhibits.

 

10.1               Amendment No. 33 dated March 26, 2010 between FirstCity Financial Corporation and Bank of Scotland plc

 

10.2               Amendment No. 20 dated March 26, 2010 between FirstCity Financial Corporation and BoS(USA) Inc.

 

10.3               Amendment No. 9 dated March 26, 2010 between FH Partners LLC and Bank of Scotland plc

 

SIGNATURES

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

	FIRSTCITY FINANCIAL CORPORATION
Date: March 29, 2010	By:	/s/ J. Bryan Baker
		J. Bryan Baker
		Senior Vice President and Chief Financial Officer

 

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EXHIBIT INDEX

 

10.1                           Amendment No. 33 dated March 26, 2010 between FirstCity Financial Corporation and Bank of Scotland plc

 

10.2                           Amendment No. 20 dated March 26, 2010 between FirstCity Financial Corporation and BoS(USA) Inc.

 

10.3                           Amendment No. 9 dated March 26, 2010 between FH Partners LLC and Bank of Scotland plc

 

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Exhibit 10.1

 

AMENDMENT NO. 33

 

Amendment No. 33 to Revolving Credit Agreement (this “Amendment”), dated as of March 26, 2010, among FirstCity Financial Corporation (the “Borrower”) and the financial institutions (each a “Lender” and collectively, the “Lenders”) party to that certain Revolving Credit Agreement, dated as of November 12, 2004 (as heretofore amended or otherwise modified, the “Loan Agreement”), among the Borrower, the Lenders and Bank of Scotland PLC acting through its New York branch, as Agent for the Lenders (the “Agent”).

 

W I T N E S S E T H :

 

WHEREAS, the Borrower and the Lenders have agreed to extend the maturity date of the Loan Agreement; and

 

WHEREAS, the Lenders and the Borrower desire to confirm the foregoing on and subject to the terms hereof;

 

NOW THEREFORE, it is agreed:

 

1.                                       Definitions. All the capitalized terms used herein which are defined in the Loan Agreement shall have the same meanings when used herein unless otherwise defined in the recitals to this Amendment.

 

2.                                       Effect of Amendment.  As used in the Loan 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, any reference to the Loan Agreement shall mean the Loan Agreement as amended hereby.

 

3.                                       Amendment.  Annex 1 to the Loan Agreement is hereby amended by restating in its entirety the definition of “Maturity Date” therein to read as follows:

 

“Maturity Date” shall mean April 1, 2011.

 

4.                                       Representations and Agreements. To induce the Lenders to enter into this Amendment, the Borrower hereby represents and warrants to the Lenders (which representations and warranties are made as of the date hereof and as of the Amendment Closing Date) and agrees for the benefit of the Lenders (which representations, warranties and agreements 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 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 enforcement is considered in a proceeding in equity or at law).

 

(e)                                  No Material Adverse Change has occurred since November 12, 2004.

 

5.                                       Effectiveness. This Amendment shall become effective as of the date hereof when each of the following conditions (the first date on which all such conditions have been so satisfied (or so waived) is herein referred to as the “ Amendment Closing Date”) has been fulfilled to the satisfaction of the Agent (or waived by the Agent in its sole discretion):

 

(a)                                  Signed Copies.  The Borrower, the Lenders and the Agent shall have executed a copy hereof, and delivered the foregoing to the Agent at 1095 Avenue of the Americas, New York, New York 10036 (Attention: Loans Administration);

 

(b)                                 No Change.  On the Amendment Closing Date, both before and after giving effect to the transactions contemplated by this Amendment to be effective on the Amendment Closing Date, no Material Adverse Change shall have occurred since November 12, 2004;

 

(c)                                  No Defaults.  No Default or Event of Default shall exist;

 

(d)                                 Accuracy of Representations.  Each representation and warranty made by the Borrower in the Loan Agreement and the other Loan Documents shall be true and correct in all material respects as of the Amendment Closing Date with the same effect as though made at and as of such date (except for those that specifically speak as of a prior date);

 

(e)                                  Guarantor’s Consent.  Each of the Guarantors shall have executed a confirming consent, substantially in the form attached hereto as Annex A or otherwise satisfactory to the Agent, and delivered the same to the Agent at 1095 Avenue of the Americas, New York, New York 10036 (Attention: Loans Administration) or such other place directed by the Agent; and

 

(f)                                    Amendment Fee.  The Borrower shall have paid to the Lenders an amendment fee in the amount of $492,879.

 

6.                                       Limited Nature of Amendment. The amendment set forth herein is limited precisely as written and shall not be deemed to prejudice any right or rights which the Agent or the Lenders may now have or may have in the future under or in connection with the Loan Agreement or any of the other Loan Documents. Except as expressly amended hereby, the terms and provisions of the Loan Agreement and all other Loan Documents remain in full force and effect.

 

7.                                       THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO CHOICE OF LAW DOCTRINE THAT WOULD RESULT IN THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.

 

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8.                                       THIS AMENDMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES HERETO WITH RESPECT TO THE MATTERS COVERED HEREBY AND THEREBY AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.

 

THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.

 

9.                                       Jurisdiction, Waiver of Jury Trial.  THE BORROWER HEREBY AGREES THAT ANY LEGAL ACTION OR PROCEEDING AGAINST IT WITH RESPECT TO THIS AMENDMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK LOCATED IN NEW YORK CITY OR OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK AS THE AGENT OR ANY LENDER MAY ELECT, AND, BY EXECUTION AND DELIVERY HEREOF, THE BORROWER ACCEPTS AND CONSENTS FOR ITSELF AND IN RESPECT TO ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS, UNLESS WAIVED IN WRITING BY THE AGENT AND THE MAJORITY LENDERS.  EACH OF THE BORROWER, THE AGENT AND THE LENDERS HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY AND ALL RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED ON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AMENDMENT OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN), OR ACTIONS OF THE BORROWER, ANY AFFILIATE OF THE BORROWER, THE AGENT OR ANY LENDER.  THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE AGENT AND THE LENDER ENTERING INTO THIS AMENDMENT.

 

10.                                 Counterparts. This Amendment may be executed in any number of counterparts by the different parties hereto on separate counterparts, each of which when so executed and delivered shall be an original, but all the counterparts shall together constitute one and the same instrument. Telecopied signatures hereto shall be of the same force and effect as an original of a manually signed copy.

 

11.                                 Headings. The descriptive headings of the various provisions of this Amendment are for convenience of reference only and shall not be deemed to affect the meaning or construction of any of the provisions hereof.

 

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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered by their respective duly authorized officers as of the date first shown.

 

	BANK OF SCOTLAND PLC, acting through its New York branch, as Agent and as a Lender
	By:
		Name:
		Title:
	FIRSTCITY FINANCIAL CORPORATION
	By:
		Name: James C. Holmes
		Title: Senior Vice President

 

[Signature Page to Amendment No. 33]

 

 

Annex A

 

CONFIRMING CONSENT

 

Reference is hereby made to the foregoing Amendment No. 33 (the “Amendment”) to the Revolving Credit Agreement dated as of March 26, 2010 among the Borrower, the Lenders and the Agent (said agreement, as from time to time amended or otherwise modified, the “Agreement”).

 

Each Guarantor hereby consents to the terms and provisions of the Amendment and confirms and acknowledges that:

 

(a)                                  its obligations under the Loan Documents to which it is a party remain in full force and effect; and

 

(b)                                 its consent and acknowledgement hereunder is not required under the terms of such Loan Documents and any failure to obtain its consent or acknowledgment in connection herewith or with any subsequent consent, waiver or amendment to the Agreement or any of the other Loan Documents will not affect the validity of its obligations under the aforesaid Loan Documents or any other Loan Document, and this consent and acknowledgement is being delivered for purposes of form only.

 

Capitalized terms used herein and not otherwise defined have the same meanings as in the Agreement.  This Amendment is dated as of the Amendment Closing Date (as defined in the Amendment).

 

FIRSTCITY COMMERCIAL CORPORATION
By:
	Name: James C. Holmes
	Title: Executive Vice President
FC CAPITAL CORP.
By:
	Name: James C. Holmes
	Title: Executive Vice President

 

 

FIRSTCITY CONSUMER LENDING CORPORATION
By:
	Name: James C. Holmes
	Title: Executive Vice President
FIRSTCITY EUROPE CORPORATION
By:
	Name: James C. Holmes
	Title: Executive Vice President
FIRSTCITY HOLDINGS CORPORATION OF MINNESOTA
By:
	Name: James C. Holmes
	Title: Executive Vice President
FIRSTCITY INTERNATIONAL CORPORATION
By:
	Name: James C. Holmes
	Title: Executive Vice President
FIRSTCITY MEXICO, INC.
By:
	Name: James C. Holmes
	Title: Executive Vice President
FIRSTCITY SERVICING CORPORATION
By:
	Name: James C. Holmes
	Title: Executive Vice President
BOSQUE ASSET CORP.
By:
	Name: James C. Holmes
	Title: Executive Vice President

 

[Signature Page to Confirming Consent to Amendment No. 33]

 

 

BOSQUE LEASING, L.P.
By:
	Name: James C. Holmes
	Title: Executive Vice President
BOSQUE LEASING GP CORP.
By:
	Name: James C. Holmes
	Title: Executive Vice President

 

[Signature Page to Confirming Consent to Amendment No. 33]

 

Exhibit 10.2

 

AMENDMENT NO. 20

 

Amendment No. 20 to Subordinated Delayed Draw Credit Agreement (this “Consent”), dated as of March 26, 2010, among FirstCity Financial Corporation (the “Borrower”); the financial institutions (each a “Lender” and collectively, the “Lenders”) party to that certain Subordinated Delayed Draw Credit Agreement, dated as of September 5, 2007 (as heretofore amended or otherwise modified, the “Loan Agreement”), among the Borrower, the Lenders and BOS(USA) INC., as Agent for the Lenders (the “Agent”).

 

W I T N E S S E T H :

 

WHEREAS, the Borrower and the Lenders have agreed to extend the maturity date of the Loan Agreement; and

 

WHEREAS, the Lenders and the Borrower desire to confirm the foregoing on and subject to the terms hereof;

 

NOW THEREFORE, it is agreed:

 

1.             Definitions. All the capitalized terms used herein which are defined in the Loan Agreement shall have the same meanings when used herein unless otherwise defined in the recitals to this Amendment.

 

2.             Effect of Amendment.  As used in the Loan 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, any reference to the Loan Agreement shall mean the Loan Agreement as amended hereby.

 

3.             Amendment.  Annex 1 to the Loan Agreement is hereby amended by restating in its entirety the definition of “Maturity Date” therein to read as follows:

 

“Maturity Date” shall mean April 1, 2011.

 

4.             Representations and Agreements. To induce the Lenders to enter into this Amendment, the Borrower hereby represents and warrants to the Lenders (which representations and warranties are made as of the date hereof and as of the Amendment Closing Date) and agrees for the benefit of the Lenders (which representations, warranties and agreements 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 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 enforcement is considered in a proceeding in equity or at law).

 

(e)           No Material Adverse Change has occurred since September 5, 2007.

 

5.             Effectiveness. This Amendment shall become effective as of the date hereof when each of the following conditions (the first date on which all such conditions have been so satisfied (or so waived) is herein referred to as the “ Amendment Closing Date”) has been fulfilled to the satisfaction of the Agent (or waived by the Agent in its sole discretion):

 

(a)           Signed Copies.  The Borrower, the Lenders and the Agent shall have executed a copy hereof, and delivered the foregoing to the Agent at 1095 Avenue of the Americas, New York, New York 10036 (Attention: Loans Administration);

 

(b)           No Change.  On the Amendment Closing Date, both before and after giving effect to the transactions contemplated by this Amendment to be effective on the Amendment Closing Date, no Material Adverse Change shall have occurred since September 5, 2007;

 

(c)           No Defaults.  No Default or Event of Default shall exist;

 

(d)           Accuracy of Representations.  Each representation and warranty made by the Borrower in the Loan Agreement and the other Loan Documents shall be true and correct in all material respects as of the Amendment Closing Date with the same effect as though made at and as of such date (except for those that specifically speak as of a prior date); and

 

(e)           Guarantor’s Consent.  Each of the Guarantors shall have executed a confirming consent, substantially in the form attached hereto as Annex A or otherwise satisfactory to the Agent, and delivered the same to the Agent at 1095 Avenue of the Americas, New York, New York 10036 (Attention: Loans Administration) or such other place directed by the Agent.

 

(f)            Amendment Fee.  The Borrower shall have paid to the Lenders an amendment fee in the amount of $62,500.

 

6.             Limited Nature of Amendment. The amendment set forth herein is limited precisely as written and shall not be deemed to prejudice any right or rights which the Agent or the Lenders may now have or may have in the future under or in connection with the Loan Agreement or any of the other Loan Documents. Except as expressly amended hereby, the terms and provisions of the Loan Agreement and all other Loan Documents remain in full force and effect.

 

7.             THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO CHOICE OF LAW DOCTRINE THAT WOULD RESULT IN THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.

 

2

 

8.             THIS AMENDMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES HERETO WITH RESPECT TO THE MATTERS COVERED HEREBY AND THEREBY AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.

 

THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.

 

9.             Jurisdiction, Waiver of Jury Trial.  THE BORROWER HEREBY AGREES THAT ANY LEGAL ACTION OR PROCEEDING AGAINST IT WITH RESPECT TO THIS AMENDMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK LOCATED IN NEW YORK CITY OR OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK AS THE AGENT OR ANY LENDER MAY ELECT, AND, BY EXECUTION AND DELIVERY HEREOF, THE BORROWER ACCEPTS AND CONSENTS FOR ITSELF AND IN RESPECT TO ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS, UNLESS WAIVED IN WRITING BY THE AGENT AND THE MAJORITY LENDERS.  EACH OF THE BORROWER, THE AGENT AND THE LENDERS HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY AND ALL RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED ON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AMENDMENT OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN), OR ACTIONS OF THE BORROWER, ANY AFFILIATE OF THE BORROWER, THE AGENT OR ANY LENDER.  THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE AGENT AND THE LENDER ENTERING INTO THIS AMENDMENT.

 

10.           Counterparts. This Amendment may be executed in any number of counterparts by the different parties hereto on separate counterparts, each of which when so executed and delivered shall be an original, but all the counterparts shall together constitute one and the same instrument. Telecopied signatures hereto shall be of the same force and effect as an original of a manually signed copy.

 

11.           Headings. The descriptive headings of the various provisions of this Amendment are for convenience of reference only and shall not be deemed to affect the meaning or construction of any of the provisions hereof.

 

3

 

IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered by their respective duly authorized officers as of the date first shown.

 

	BOS(USA) INC., as Agent and as a Lender
	By:
		Name:
		Title:
	FIRSTCITY FINANCIAL CORPORATION
	By:
		Name: James C. Holmes
		Title: Senior Vice President

 

[Signature Page to Amendment No. 20]

 

 

Annex A

 

CONFIRMING CONSENT

 

Reference is hereby made to the foregoing Amendment No. 20 (the “Amendment”) to the Subordinated Delayed Draw Credit Agreement dated as of March 26, 2010 among the Borrower, the Lenders and the Agent (said agreement, as from time to time amended or otherwise modified, the “Agreement”).

 

Each Guarantor hereby consents to the terms and provisions of the Amendment and confirms and acknowledges that:

 

(a)           its obligations under the Loan Documents to which it is a party remain in full force and effect; and

 

(b)           its consent and acknowledgement hereunder is not required under the terms of such Loan Documents and any failure to obtain its consent or acknowledgment in connection herewith or with any subsequent consent, waiver or amendment to the Agreement or any of the other Loan Documents will not affect the validity of its obligations under the aforesaid Loan Documents or any other Loan Document, and this consent and acknowledgement is being delivered for purposes of form only.

 

Capitalized terms used herein and not otherwise defined have the same meanings as in the Agreement.  This Amendment is dated as of the Amendment Closing Date (as defined in the Amendment).

 

FIRSTCITY COMMERCIAL CORPORATION
By:
	Name: James C. Holmes
	Title: Executive Vice President
FC CAPITAL CORP.
By:
	Name: James C. Holmes
	Title: Executive Vice President

 

 

FIRSTCITY CONSUMER LENDING CORPORATION
By:
	Name: James C. Holmes
	Title: Executive Vice President
FIRSTCITY EUROPE CORPORATION
By:
	Name: James C. Holmes
	Title: Executive Vice President
FIRSTCITY HOLDINGS CORPORATION OF MINNESOTA
By:
	Name: James C. Holmes
	Title: Executive Vice President
FIRSTCITY INTERNATIONAL CORPORATION
By:
	Name: James C. Holmes
	Title: Executive Vice President
FIRSTCITY MEXICO, INC.
By:
	Name: James C. Holmes
	Title: Executive Vice President
FIRSTCITY SERVICING CORPORATION
By:
	Name: James C. Holmes
	Title: Executive Vice President
BOSQUE ASSET CORP.
By:
	Name: James C. Holmes
	Title: Executive Vice President

 

[Signature Page to Confirming Consent to Amendment No. 20]

 

 

BOSQUE LEASING, L.P.
By:
	Name: James C. Holmes
	Title: Executive Vice President
BOSQUE LEASING GP CORP.
By:
	Name: James C. Holmes
	Title: Executive Vice President

 

[Signature Page to Confirming Consent to Amendment No. 20]

 

Exhibit 10.3

 

AMENDMENT NO. 9

 

Amendment No. 9 (this “Amendment”), dated as of March 26, 2010, 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 and the Lenders have agreed to extend the maturity date of the Loan Agreement; and

 

WHEREAS, the Lenders and the Borrower desire to confirm the foregoing on and subject to the terms hereof;

 

NOW THEREFORE, it is agreed:

 

1.                                       Definitions. All the capitalized terms used herein which are defined in the Loan Agreement shall have the same meanings when used herein unless otherwise defined in the recitals to this Amendment.

 

2.                                       Effect of Amendment.  As used in the Loan 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, any reference to the Loan Agreement shall mean the Loan Agreement as amended hereby.

 

3.                                       Amendment.  Annex 1 to the Loan Agreement is hereby amended by restating in its entirety the definition of “Maturity Date” therein to read as follows:

 

“Maturity Date” shall mean April 1, 2011.

 

4.                                       Representations.  To induce the Lenders to execute this Amendment, the Borrower hereby represents and warrants to the Lenders (which representations and warranties are made as of the date hereof and as of the Amendment Closing Date) and agrees for the benefit of the Lenders (which representations, warranties and agreements 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.

 

1

 

(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 enforcement is considered in a proceeding in equity or at law).

 

(e)                                  No Material Adverse Change has occurred since August 26, 2005.

 

5.                                       Effectiveness.  This Amendment shall become effective as of the date hereof when each of the following conditions (the first date on which all such conditions have been so satisfied (or waived) is herein referred to as the “Amendment Closing Date”) has been fulfilled to the satisfaction of the Agent (or waived by the Agent in its sole discretion).

 

(a)                                  Signed Copies.  The Borrower, the Lenders and the Agent shall have executed a copy hereof and delivered the same to the Agent at 1095 Avenue of the Americas, New York, New York 10036 (Attention:  Loan Administration) or such other place directed by the Agent.

 

(b)                                 No Change.  On the Amendment Closing Date, both before and after giving effect to the transactions contemplated by this Amendment to be effective on the Amendment Closing Date, no Material Adverse Change shall have occurred since August 26, 2005.

 

(c)                                  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 1095 Avenue of the Americas, New York, New York 10036 (Attention:  Loan Administration) or such other place directed by the Agent.

 

(d)                                 No Defaults.  No Default or Event of Default shall exist.

 

(e)                                  Accuracy of Representations.  Each representation and warranty made by the Borrower, each Primary Obligor, each Portfolio Entity, each Related Entity and each other Loan Party in the Agreement and the other Loan Documents shall be true and correct in all material respects as of the Amendment Closing Date with the same effect as though made at and as of such date (except for those that specifically speak as of a prior date).

 

(f)                                    Amendment Fee.  The Borrower shall have paid to the Lenders an amendment fee in the amount of $127,121.

 

6.             Limited Nature of Amendments.  The amendment set forth herein is limited precisely as written and shall not be deemed to prejudice any right or rights which any of the Lenders or the Agent may now have or may have in the future under or in connection with the Loan Agreement, or any of the other Loan Documents.  Except as expressly amended hereby, the

 

 

terms and provisions of the Loan Agreement and all other Loan Documents shall remain in full force and effect.

 

7.                                       Governing Law.  THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO CHOICE OF LAW DOCTRINE THAT WOULD RESULT IN THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.

 

8.                                       Entire Agreement. THIS AMENDMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES HERETO WITH RESPECT TO THE MATTERS COVERED HEREBY AND THEREBY AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.

 

9.                                       Jurisdiction, Waiver of Jury Trial.  THE BORROWER HEREBY AGREES THAT ANY LEGAL ACTION OR PROCEEDING AGAINST IT WITH RESPECT TO THIS AMENDMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK LOCATED IN NEW YORK CITY OR OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK AS THE AGENT OR ANY LENDER MAY ELECT, AND, BY EXECUTION AND DELIVERY HEREOF, THE BORROWER ACCEPTS AND CONSENTS FOR ITSELF AND IN RESPECT TO ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS, UNLESS WAIVED IN WRITING BY THE AGENT AND THE MAJORITY LENDERS.  EACH OF THE BORROWER, THE AGENT AND THE LENDERS HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY AND ALL RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED ON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AMENDMENT OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN), OR ACTIONS OF THE BORROWER, ANY AFFILIATE OF THE BORROWER, THE AGENT OR ANY LENDER.  THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE AGENT AND THE LENDER ENTERING INTO THIS AMENDMENT.

 

10.                                 Counterparts.  This Amendment may be executed in any number of counterparts, and by the different parties on the same or separate counterparts, each of which when so executed and delivered shall be deemed to be an original, but all of which together shall constitute one and the same agreement.  Telecopied signatures hereto and to the Confirming Consent shall be of the same force and effect as an original of a manually signed copy.

 

11.                                 Headings.  The descriptive headings of the various provisions of this Amendment are inserted for convenience of reference only and shall not be deemed to affect the meaning or construction of any of the provisions hereof.

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered by their respective duly authorized officers as of the date first shown.

 

	BANK OF SCOTLAND PLC, acting through its New York branch as Agent and as a Lender
	By:
		Name:
		Title:
	FH PARTNERS LLC
	By:
		Name: James C. Holmes
		Title: Senior Vice President

 

[Signature Page to Amendment No. 9]

 

 

Annex A

 

CONFIRMING CONSENT

 

Reference is hereby made to the foregoing Amendment No. 9 (the “Amendment”) to the Revolving Credit Agreement dated as of March 26, 2010 among the Borrower, the Lenders and the Agent (said agreement, as from time to time amended or otherwise modified, the “Agreement”).

 

Each Guarantor hereby consents to the terms and provisions of the Amendment and confirms and acknowledges that:

 

(a)                                  its obligations under the Loan Documents to which it is a party remain in full force and effect; and

 

(b)                                 its consent and acknowledgement hereunder is not required under the terms of such Loan Documents and any failure to obtain its consent or acknowledgment in connection herewith or with any subsequent consent, waiver or amendment to the Agreement or any of the other Loan Documents will not affect the validity of its obligations under the aforesaid Loan Documents or any other Loan Document, and this consent and acknowledgement is being delivered for purposes of form only.

 

Capitalized terms used herein and not otherwise defined have the same meanings as in the Agreement. This Consent is dated as of the Amendment Closing Date (as defined in the Amendment).

 

FIRSTCITY COMMERCIAL CORPORATION
By:
	Name: James C. Holmes
	Title: Executive Vice President
FC CAPITAL CORP.
By:
	Name: James C. Holmes
	Title: Executive Vice President

 

 

FIRSTCITY CONSUMER LENDING CORPORATION
By:
	Name: James C. Holmes
	Title: Executive Vice President
FIRSTCITY EUROPE CORPORATION
By:
	Name: James C. Holmes
	Title: Executive Vice President
FIRSTCITY HOLDINGS CORPORATION
By:
	Name: James C. Holmes
	Title: Executive Vice President
FIRSTCITY HOLDINGS CORPORATION OF MINNESOTA
By:
	Name: James C. Holmes
	Title: Executive Vice President
FIRSTCITY INTERNATIONAL CORPORATION
By:
	Name: James C. Holmes
	Title: Executive Vice President
FIRSTCITY MEXICO, INC.
By:
	Name: James C. Holmes
	Title: Executive Vice President
FIRSTCITY SERVICING CORPORATION
By:
	Name: James C. Holmes
	Title: Executive Vice President

 

[Signature Page to Confirming Consent to Amendment No. 9]

 

 

BOSQUE ASSET CORP.
By:
	Name: James C. Holmes
	Title: Executive Vice President
BOSQUE LEASING, L.P.
By:
	Name: James C. Holmes
	Title: Executive Vice President
BOSQUE LEASING GP CORP.
By:
	Name: James C. Holmes
	Title: Executive Vice President

 

[Signature Page to Confirming Consent to Amendment No. 9]