Exhibit 10.45


 


AMENDED AND RESTATED GENERAL CONTINUING
LIMITED GUARANTY


 


This AMENDED AND RESTATED GENERAL CONTINUING
GUARANTY (this “Guaranty”), dated as of February 18, 2009, is
executed and delivered by FIRSTCITY FINANCIAL CORPORATION, a Delaware corporation
(“Guarantor”), in favor of WELLS FARGO FOOTHILL, LLC., a Delaware limited
liability company (“Lender”), in light of the following:


 


WHEREAS,
American Business Lending, Inc., a Texas corporation (“Borrower”),
and Lender are parties to that certain Loan Agreement dated as of December 15,
2006 (as amended, restated, modified, renewed or extended from time to time,
the “Loan Agreement”) and certain other Loan Documents, pursuant to
which Lender has agreed to make certain loans or other financial accommodations
to or for the benefit of Borrower;


 


WHEREAS,
Borrower has requested Lender to enter into a Third Amendment to Loan Agreement
dated as of February 18, 2009, to be effective as of February 1, 2009
(the “Third Amendment”);


 


WHEREAS,
Borrower is a wholly-owned subsidiary of FirstCity Business Lending
Corporation, a Texas corporation, which is a wholly-owned subsidiary of
Guarantor, and therefore Guarantor will benefit by virtue of the continued
financial accommodations extended to Borrower by Lender pursuant to the Loan
Agreement as amended by the Third Amendment;


 


WHEREAS,
Guarantor has previously executed and delivered to Lender that certain General
Continuing Limited Guaranty, dated as of February 27, 2007 (the “Original
FCF Guaranty”), pursuant to which Guarantor guaranteed a portion of
Borrower’s Obligations to Lender;


 


WHEREAS,
a condition precedent to Lender’s willingness to enter into the Third Amendment
is Guarantor’s agreement to amend and restate the Original FCF Guaranty to have
Guarantor guarantee all of Borrower’s Obligations to Lender, subject only to
the “Guaranty Limitation” (as hereinafter defined); and


 


WHEREAS,
in order to induce Lender to enter into the Third Amendment and to continue to
extend to Borrower the additional financial accommodations provided for in the
Loan Agreement as amended by the Third Amendment, Guarantor has agreed to
guaranty the Guarantied Obligations as set forth in this Guaranty.


 


NOW,
THEREFORE, in consideration of the foregoing, Guarantor hereby agrees as
follows:


 


1              Definitions and Construction.


 


 (a)          Definitions.
Capitalized terms used herein and not otherwise defined herein shall have the
meanings ascribed to them in the Loan Agreement. The following terms, as used
in this Guaranty, shall have the following meanings:


 


 “Borrower”
has the meaning set forth in the preamble to this Guaranty.


 


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“Enforcement Costs”
has the meaning set forth in Section 12 of this Guaranty.


 


“Guarantied Obligations”
means the due and punctual payment of the principal of, and interest (including
any interest that, but for the commencement of an Insolvency Proceeding, would
have accrued) on, any and all premium on, and any and all fees, costs,
indemnities, and expenses incurred in connection with, the Indebtedness owed by
Borrower to Lender or any Bank Product Provider pursuant to the terms of the
Loan Agreement or any other Loan Document.


 


“Guarantor” has the
meaning set forth in the preamble to this Guaranty. 


 


“Guaranty” has the
meaning set forth in the preamble to this Guaranty. 


 


“Guaranty Limitation”
has the meaning set forth in Section 2 of this Guaranty.


 


“Indebtedness” means
any and all obligations (including the Obligations), indebtedness, or
liabilities of any kind or character arising directly or indirectly out of or
in connection with the Loan Agreement or any other Loan Document, including all
such obligations, indebtedness, or liabilities, whether for principal, interest
(including any interest which, but for the provisions of the Bankruptcy Code,
would have accrued on such amounts), premium, reimbursement obligations, fees,
costs, expenses (including attorneys’ fees), or indemnity obligations, whether
heretofore, now, or hereafter made, incurred, or created, whether voluntarily
or involuntarily made, incurred, or created, whether secured or unsecured (and
if secured, regardless of the nature or extent of the security), whether
absolute or contingent, liquidated or imliquidated, or determined or
indeterminate, whether individual or joint liability, and whether recovery is
or hereafter becomes barred by any statute of limitations or otherwise becomes
unenforceable for any reason whatsoever, including any act or failure to act by
Lender or any Bank Product Provider.


 


“Lender” has the
meaning set forth in the preamble to this Guaranty.


 


“Loan Agreement” has
the meaning set forth in the recitals to this Guaranty.


 


“Voidable Transfer”
has the meaning set forth in Section 9 of this Guaranty.


 


(b)           Construction.
Unless the context of this Guaranty clearly requires otherwise, references to
the plural include the singular, references to the singular include the plural,
the terms “includes” and “including” are not limiting, and the term “or” has,
except where otherwise indicated, the inclusive meaning represented by the
phrase “and/or.” The words “hereof,” “herein,” “hereby,” “hereunder,” and
similar terms in this Guaranty refer to this Guaranty as a whole and not to any
particular provision of this Guaranty. Section, subsection, clause, schedule,
and exhibit references herein are to this Guaranty unless otherwise specified.
Any reference in this Guaranty to any agreement, instrument, or document shall
include all alterations, amendments, changes, extensions, modifications,
renewals, replacements, substitutions, joinders, and supplements, thereto and
thereof, as applicable (subject to any restrictions on such alterations,
amendments, changes, extensions, modifications, renewals, replacements,
substitutions, joinders, and supplements set forth herein). Neither this
Guaranty nor any uncertainty or ambiguity herein shall be construed against
Lender or Borrower, whether


 


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under any rule of construction or otherwise. On the contrary, this
Agreement has been reviewed by all parties and shall be construed and
interpreted according to the ordinary meaning of the words used so as to
accomplish fairly the purposes and intentions of all parties hereto. Any
reference herein to the satisfaction or payment in full of the Guarantied
Obligations shall mean the payment in full in cash (or cash collateralization
in accordance with the terms of the Loan Agreement) of all Guarantied
Obligations other than any contingent indemnification Guarantied Obligations
and other than any Bank Product Obligations that, at such time, are allowed by
the applicable Bank Product Provider to remain outstanding and are not required
to be repaid or cash collateralized pursuant to the provisions of the Loan
Agreement. Any reference herein to any Person shall be construed to include
such Person’s successors and assigns. Any requirement of a writing contained
herein shall be satisfied by the transmission of a Record and any Record
transmitted shall constitute a representation and warranty as to the accuracy
and completeness of the information contained therein.


 


2.             Guarantied Obligations. Guarantor
hereby irrevocably and unconditionally guaranties to Lender, for the benefit of
Lender and the Bank Product Providers, as and for its own debt, until final
payment in full thereof has been made, the payment of the Guarantied
Obligations, when and as the same shall become due and payable, whether at
maturity, pursuant to a mandatory prepayment requirement, by acceleration, or
otherwise; it being the intent of Guarantor that the guaranty set forth herein
shall be a guaranty of payment and not a guaranty of collection; provided,
however, that in no event shall Guarantor’s liability hereunder (the “Guaranty
Limitation”) exceed the sum of (i) Five Million No/100 Dollars
($5,000,000.00) and (ii) all of Lender’s Enforcement Costs..


 


3.             Extension, Modification or Renewal of Guarantied
Obligations. Subject to the Guaranty Limitation, this Guaranty
includes any extension, modification, or renewal of the Guarantied Obligations,
or any change of the interest rate, payment terms, or other terms and
conditions of the Guarantied Obligations. If Guarantor revokes or seeks to
revoke this Guaranty, Guarantor acknowledges and agrees that (a) no such
revocation shall be effective until written notice thereof has been received by
Lender, and (b) no such revocation shall apply to any Guarantied
Obligations in existence on such date (including any subsequent continuation,
extension, or renewal thereof, or change in the interest rate, payment terms,
or other terms and conditions thereof).


 


4.             Performance Under this Guaranty. In
the event that Borrower fails to make any payment of any Guarantied
Obligations, on or prior to the due date thereof, Guarantor immediately shall,
subject to the Guaranty Limitation, cause such payment to be made.


 


5.             Primary
Obligations. This Guaranty is a primary and original obligation
of Guarantor, is not merely the creation of a surety relationship, and is an
absolute, unconditional, and continuing guaranty of payment and performance
which shall, subject to the Guaranty Limitation, remain in full force and
effect without respect to future changes in conditions. Guarantor hereby agrees
(a) that it is directly, jointly and severally with any other guarantor of
the Guarantied Obligations, liable to Lender, for its benefit and for the
benefit of the Bank Product Providers, (b) that the obligations of
Guarantor hereunder are independent of the obligations of Borrower or any other
guarantor, and (c) that a separate action may be brought against
Guarantor, whether such action is brought against Borrower or any other
guarantor or


 


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whether Borrower or any other guarantor is joined in such action.
Guarantor hereby agrees that its liability hereunder shall be immediate and
shall not be contingent upon the exercise or enforcement by Lender or any Bank
Product Provider of whatever remedies Lender or any Bank Product Provider may
have against Borrower or any other guarantor, or the enforcement of any lien or
realization upon any security by Lender or any Bank Product Provider. Guarantor
hereby agrees that any release which may be given by Lender or any Bank Product
Provider to Borrower or any other guarantor shall not release Guarantor.
Guarantor consents and agrees that neither Lender nor any Bank Product Provider
shall be under any obligation to marshal any property or assets of Borrower or
any other guarantor in favor of Guarantor, or against or in payment of any or
all of the Guarantied Obligations.


 


6            Waivers.


 


(a)           To
the fullest extent permitted by applicable law, Guarantor hereby waives: (i) notice
of acceptance hereof; (ii) notice of any loans or other financial
accommodations made or extended under the Loan Agreement, or the creation or
existence of any Guarantied Obligations; (iii) notice of the amount of the
Guarantied Obligations, subject, however, to Guarantor’s right to make inquiry
of Lender to ascertain the amount of the Guarantied Obligations at any reasonable
time; (iv) notice of any adverse change in the financial condition of
Borrower or of any other fact that might increase Guarantor’s risk hereunder; (v) notice
of presentment for payment, demand, protest, and notice thereof as to any
instrument among the Loan Documents; (vi) notice of any Default or Event
of Default under the Loan Agreement; and (vii) all other notices (except
if such notice is specifically required to be given to Guarantor under this
Guaranty or any other Loan Documents to which Guarantor is a party) and demands
to which Guarantor might otherwise be entitled.


 


(b)           To
the fullest extent permitted by applicable law, Guarantor hereby waives the
right by statute or otherwise to require Lender or any Bank Product Provider to
institute suit against Borrower or to exhaust any rights and remedies which
Lender or any Bank Product Provider has or may have against Borrower. In this
regard, Guarantor agrees that, subject to the Guaranty Limitation., it is bound
to the payment of each and all Guarantied Obligations, whether now existing or
hereafter arising, as fully as if the Guarantied Obligations were directly
owing to Lender or the Bank Product Providers, as applicable, by Guarantor.
Guarantor further waives any defense arising by reason of any disability or
other defense (other than the defense that the Guarantied Obligations shall
have been performed and paid in cash, to the extent of such payment) of
Borrower or by reason of the cessation from any cause whatsoever of the
liability of Borrower in respect thereof.


 


(c)           To
the fullest extent permitted by applicable law, Guarantor hereby

waives: (i) any right to assert against Lender or any Bank Product
Provider any defense (legal or equitable), set-off; counterclaim, or claim
which Guarantor may now or at any time hereafter have against Borrower or any
other party liable to Lender or any Bank Product Provider; (ii) any
defense, set-off, counterclaim, or claim, of any kind or nature, arising
directly or indirectly from the present or future lack of perfection,
sufficiency, validity, or enforceability of the Guarantied Obligations or any
security therefor; (iii) any right or defense arising by reason of any
claim or defense based upon an election of remedies by Lender or any Bank
Product Provider; (iv) the benefit of any statute of limitations affecting
Guarantor’s liability hereunder or the enforcement


 


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thereof, and any act which shall defer or delay the operation of any
statute of limitations applicable to the Guarantied Obligations shall similarly
operate to defer or delay the operation of such statute of limitations
applicable to Guarantor’s liability hereunder.


 


(d)         Until
such time as all of the Obligations have been finally paid in full: (i) Guarantor
hereby waives and postpones any right of subrogation Guarantor has or may have
as against Borrower with respect to the Guarantied Obligations; (ii) Guarantor
hereby waives and postpones any right to proceed against Borrower or any other
Person, now or hereafter, for contribution, indemnity, reimbursement, or any
other suretyship rights and claims (irrespective of whether direct or indirect,
liquidated or contingent), with respect to the Guarantied Obligations; and (iii) Guarantor
also hereby waives and postpones any right to proceed or to seek recourse
against or with respect to any property or asset of Borrower.


 


(e)          If
any of the Guarantied Obligations or the obligations of Guarantor under this
Guaranty at any time are secured by a mortgage or deed of trust upon real
property, Lender or any Bank Product Provider may elect, in its sole
discretion, upon a default with respect to the Guarantied Obligations or the
obligations of Guarantor under this Guaranty, to foreclose such mortgage or
deed of trust judicially or nonjudicially in any manner permitted by law,
before or after enforcing this Guaranty, without diminishing or affecting the
liability of Guarantor hereunder. Guarantor understands that (a) by virtue
of the operation of antideficiency law applicable to nonjudicial foreclosures,
an election by Lender or any Bank Product Provider to nonjudicially foreclose
on such a mortgage or deed of trust probably would have the effect of impairing
or destroying rights of subrogation, reimbursement, contribution, or indemnity
of Guarantor against Borrower or other guarantors or sureties, and (b) absent
the waiver given by Guarantor herein, such an election would estop Lender and
the Bank Product Providers from enforcing this Guaranty against Guarantor.
Understanding the foregoing, and understanding that Guarantor hereby is
relinquishing a defense
to the enforceability of this Guaranty, Guarantor hereby waives any
right to assert against Lender or any Bank Product Provider any defense to the
enforcement of this Guaranty, whether denominated “estoppel” or otherwise,
based on or arising from an election by Lender or any Bank Product Provider to
nonjudicially foreclose on any such mortgage or deed of trust. Guarantor
understands that the effect of the foregoing waiver may be that Guarantor may
have liability hereunder for amounts with respect to which Guarantor may be
left without rights of subrogation, reimbursement, contribution, or indemnity
against Borrower or other guarantors or sureties.


 


(f)          Without
limiting the generality of any other waiver or other provision set forth in
this Guaranty, Guarantor waives all rights and defenses that Guarantor may have
if all or part of the Guarantied Obligations are secured by real property. This
means, among other things:


 


(i)              Lender
or any Bank Product Provider may collect from Guarantor without first
foreclosing on any real or personal property collateral that may be pledged by
Guarantor, Borrower, or any other guarantor.


 


(ii)             If
Lender or any Bank Product Provider forecloses on any real property collateral
that may be pledged by Guarantor, Borrower or any other guarantor:


 


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(1)           The
amount of the Guarantied Obligations or any obligations of any Guarantor in
respect thereof may be reduced only by the price for which that collateral is
sold at the foreclosure sale, even if the collateral is worth more than the
sale price.


 


(2)           Lender
may collect from Guarantor even if Lender or any Bank Product Provider, by
foreclosing on the real property collateral, has destroyed any right Guarantor
may have to collect from Borrower or any other Guarantor.


 


This is an unconditional and irrevocable waiver of any rights and
defenses Guarantor may have if all or part of the Guarantied Obligations are secured
by real property.


 


(g)           Without
limiting the generality of any other waiver or other provision set forth in
this Guaranty, Guarantor waives all rights and defenses arising out of an
election of remedies by Lender or any Bank Product Provider, even though such
election of remedies, such as a nonjudicial foreclosure with respect to
security for the Guarantied Obligations, has destroyed Guarantor’s rights of
subrogation and reimbursement against Borrower by the operation of applicable
law.


 


(h)           Without
limiting the generality of any other waiver or other provision set forth in
this Guaranty, Guarantor hereby agrees as follows:


 


(i)                            Lender’s
right to enforce this Guaranty is absolute and is not contingent upon the
genuineness, validity or enforceability of any of the Loan Documents. Guarantor
agrees that Lender’s rights under this Guaranty shall be enforceable even if
Borrower had no liability at the time of execution of the Loan Documents or
later ceases to be liable.


 


(ii)                Guarantor
agrees that Lender’s rights under the Loan Documents will remain enforceable
even if the amount secured by the Loan Documents is larger in amount and more
burdensome than that for which Borrower is responsible. The enforceability of
this Guaranty against Guarantor shall continue until all sums due under the
Loan Documents have been paid in full and such enforceability shall not be limited or
affected in any way by any impairment or any diminution or loss of value of any
security or collateral for Borrower’s obligations under the Loan Documents,
from whatever cause, by the failure of any security interest in any such
security or collateral or by any disability or other defense of Borrower, any
other guarantor of Borrower’s obligations under any other Loan Document, any
pledgor of collateral for any person’s obligations to Lender or any other
person in connection with the Loan Documents.


 


(iii)               Guarantor
waives the right to require Lender or any Bank Product Provider to (A) proceed
against Borrower, any guarantor of Borrower’s obligations under any Loan
Document, any other pledgor of collateral for any person’s obligations to
Lender or any Bank Product Provider or any other person in connection with the
Guarantied Obligations, (B) proceed against or exhaust any other security
or collateral Lender or any Bank Product Provider may hold, or (C) pursue
any other right or remedy for Guarantor’s benefit, and agrees that Lender, on
behalf of itself and the Bank Product Providers, may exercise its right under
this Guaranty without taking any action against Borrower, any other guarantor
of Borrower’s obligations under the Loan Documents, any pledgor of collateral
for any person’s obligations to


 


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Lender
or any Bank Product Provider or any other person in connection with the
Guarantied Obligations, and without proceeding against or exhausting any
security or collateral Lender or any Bank Product Provider holds.


 


7.             Releases.
Guarantor consents and agrees that, without notice to or by Guarantor and
without affecting or impairing the obligations of Guarantor hereunder, Lender
or any Bank Product Provider may, by action or inaction, compromise or settle,
extend the period of duration or the time for the payment, or discharge the
performance of, or may refuse to, or otherwise not enforce, or may, by action
or inaction, release all or any one or more parties to, any one or more of the
terms and provisions of the Loan Agreement or any other Loan Document or may
grant other indulgences to Borrower in respect thereof, or may amend or modify
in any manner and at any time (or from time to time) any one or more of the
Loan Agreement or any other Loan Document, or may, by action or inaction,
release or substitute any other guarantor, if any, of the Guarantied Obligations,
or may enforce, exchange, release, or waive, by action or inaction, any
security for the Guarantied Obligations or any other guaranty of the Guarantied
Obligations, or any portion thereof.


 


8.             No Election. Lender and the Bank Product Providers shall have the right to seek
recourse against Guarantor to the fullest extent provided for herein and no
election by Lender or any Bank Product Provider to proceed in one form of
action or proceeding, or against any party, or on any obligation, shall constitute
a waiver of Lender’s or any Bank Product Provider’s right to proceed in any
other form of action or proceeding or against other parties unless Lender, on
behalf of itself and the Bank Product Providers, has expressly waived such
right in writing. Specifically, but without limiting the generality of the
foregoing, no action or proceeding by Lender or any Bank Product Provider under
any document or instrument evidencing the Guarantied Obligations shall serve to
diminish the liability of Guarantor under this Guaranty except to the extent
that Lender and the Bank Product Providers finally and unconditionally shall
have realized payment in full of the Guarantied Obligations by such action or
proceeding.


 


9.             Revival and Reinstatement. If the incurrence or payment of the
Guarantied Obligations or the obligations of Guarantor under this Guaranty by
Guarantor or the transfer by Guarantor to Lender of any property of Guarantor
should for any reason subsequently be declared to be void or voidable under any
state or federal law relating to creditors’ rights, including provisions of the
Bankruptcy Code relating to fraudulent conveyances, preferences, or other
voidable or recoverable payments of money or transfers of property
(collectively, a “Voidable Transfer”), and if Lender is required to
repay or restore, in whole or in part, any such Voidable Transfer, or elects to
do so upon the reasonable advice of its counsel, then, as to any such Voidable
Transfer, or the amount thereof that Lender is required or elects to repay or
restore, and as to all reasonable costs, expenses, and attorneys fees of Lender
related thereto, the liability of Guarantor automatically shall, subject to the
Guaranty Limitation, be revived, reinstated, and restored and shall exist as
though such Voidable Transfer had never been made.


 


10.          Financial
Condition of Borrower.
Guarantor represents and warrants to Lender and the Bank Product Providers that
it is currently informed of the financial condition of Borrower and of all
other circumstances which a diligent inquiry would reveal and which bear upon
the risk of nonpayment of the Guarantied Obligations. Guarantor further
represents and warrants to Lender and the Bank Product Providers that it has
read and understands the terms and


 


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conditions of the Loan Agreement and each other Loan Document.
Guarantor hereby covenants that it will continue to keep itself informed of
Borrower’s financial condition, the financial condition of other guarantors, if
any, and of all other circumstances which bear upon the risk of nonpayment or
nonperformance of the Guarantied Obligations.


 


11.          Payments;
Application. All payments to be made hereunder by Guarantor
shall be made in Dollars, in immediately available funds, and without deduction
(whether for taxes or otherwise) or offset and shall be applied to the
Guarantied Obligations in accordance with the terms of the Loan Agreement.


 


12.          Attorneys
Fees and Costs. Guarantor agrees to pay, on demand, all
attorneys fees and all other costs and expenses which may be incurred by Lender
in connection with the enforcement of this Guaranty, irrespective of whether
suit is brought (collectively, the “Enforcement Costs”).


 


13.          Notices.
All notices and other communications hereunder to Lender shall be in writing
and shall be mailed, sent, or delivered in accordance Section 12 of
the Loan Agreement. All notices and other communications hereunder to Guarantor
shall be in writing and shall be mailed, sent, or delivered in care of Borrower
in accordance with Section 12 of the Loan Agreement.


 


14.          Cumulative
Remedies. No remedy under this Guaranty, under the Loan
Agreement, or any other Loan Document is intended to be exclusive of any other
remedy, but each and every remedy shall be cumulative and in addition to any
and every other remedy given under this Guaranty, under the Loan Agreement, or
any other Loan Document, and those provided by law. No delay or omission by
Lender to exercise any right under this Guaranty shall impair any such right
nor be construed to be a waiver thereof. No failure on the part of Lender to
exercise, and no delay in exercising, any right under this Guaranty shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right under this Guaranty preclude any other or further exercise thereof or the
exercise of any other right.


 


15.          Severability
of Provisions. Each provision of this Guaranty shall be
severable from every other provision of this Guaranty for the purpose of
determining the legal enforceability of any specific provision.


 


16.          Entire
Agreement; Amendments. This Guaranty constitutes the entire
agreement between Guarantor and Lender pertaining to the subject matter
contained herein. This Guaranty may not be altered, amended, or modified, nor
may any provision hereof be waived or noncompliance therewith consented to,
except by means of a writing executed by Guarantor and Lender. Any such
alteration, amendment, modification, waiver, or consent shall be effective only
to the extent specified therein and for the specific purpose for which given.
No course of dealing and no delay or waiver of any right or default under this
Guaranty shall be deemed a waiver of any other, similar or dissimilar, right or
default or otherwise prejudice the rights and remedies hereunder.


 


17.          Successors
and Assigns. This Guaranty shall be binding upon Guarantor and
its successors and assigns and shall inure to the benefit of the successors and
assigns of Lender and


 


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the Bank Product Providers; provided, however, Guarantor shall
not assign this Guaranty or delegate any of its duties hereunder without Lender’s
prior written consent and any unconsented to assignment shall be absolutely
void. In the event of any assignment or other transfer of rights by Lender or
any Bank Product Provider, the rights and benefits herein conferred upon Lender
and such Bank Product Provider shall automatically extend to and be vested in
such assignee or other transferee.


 


18.          No Third Party Beneficiary.
This Guaranty is solely for the benefit of Lender, each Bank Product Provider
and each of their successors and assigns, and may not be relied on by any other
Person.


 


19.          CHOICE OF LAW AND VENUE; JURY TRIAL
WAIVER.


 


THE VALIDITY OF THIS GUARANTY, THE CONSTRUCTION,
INTERPRETATION, AND ENFORCEMENT HEREOF, AND THE RIGHTS OF THE PARTIES HERETO
WITH RESPECT TO ALL MATTERS ARISING HEREUNDER OR RELATED HERETO SHALL BE
DETERMINED UNDER, GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.


 


THE PARTIES AGREE THAT ALL ACTIONS OR PROCEEDINGS
ARISING IN CONNECTION WITH THIS GUARANTY SHALL BE TRIED AND LITIGATED ONLY IN
THE STATE AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW, FEDERAL COURTS
LOCATED IN THE COUNTY OF NEW YORK, STATE OF NEW YORK; PROVIDED, HOWEVER, THAT
ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE
BROUGHT, AT LENDER’S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE LENDER
ELECTS TO BRING SUCH ACTION OR WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE
FOUND. GUARANTOR AND LENDER WAIVE, TO THE EXTENT PERMITTED UNDER APPLICABLE
LAW, ANY RIGHT EACH MAY HAVE TO ASSERT THE DOCTRINE OF FORUM NON
CONVENIENS OR TO OBJECT TO VENUE TO THE EXTENT ANY PROCEEDING IS BROUGHT IN
ACCORDANCE WITH THIS SECTION 19.


 


GUARANTOR AND LENDER HEREBY WAIVE THEIR RESPECTIVE
RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING
OUT OF THIS GUARANTY OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREIN, INCLUDING
CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW
OR STATUTORY CLAIMS. GUARANTOR AND LENDER REPRESENT THAT EACH HAS REVIEWED THIS
WAIVER AND EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS
FOLLOWING CONSULTATION WITH LEGAL COUNSEL. IN THE EVENT OF LITIGATION, A COPY
OF THIS GUARANTY MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE
COURT.


 


20.          Counterparts; Telefacsimile
Execution. Delivery of an executed version of this Guaranty by
telefacsimile shall be equally as effective as delivery of an original executed
version


 


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of this Guaranty. Any party delivering an executed version of this
Guaranty by telefacsimile also shall deliver an original executed version of
this Guaranty but the failure to deliver an original executed version shall not
affect the validity, enforceability, and binding effect of this Guaranty.


 


21. Amendment and Restatement of Original FCF Guaranty.
This Guaranty amends and restates in its entirety, and supersedes the
obligations of Guarantor under, the Original FCF Guaranty.


 


[Signature page to follow]


 


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IN WITNESS WHEREOF, the undersigned has executed and
delivered this Amended and Restated General Continuing Limited Guaranty as of
the date first written above.


 


	
   

  	
  FIRSTCITY FINANCIAL CORPORATION, 

  
	
   

  	
  a Delaware corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


[Signature Page to Amended and Restated
General Continuing Limited Guaranty]