Exhibit 10.2


 


AMENDMENT NO. 15


 


Amendment No. 15 to Subordinated Delayed Draw
Credit Agreement (this “Amendment”), dated as of March 30, 2009, among
FirstCity Financial Corporation (the “Borrower”) and 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 has requested that certain amendments set forth herein be made to
the Agreement to reflect certain agreements the Lenders and the Borrower have
reached; and


 


WHEREAS,
subject to the terms and conditions contained below, the Agent and the Lenders
are willing so to 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)                                  Annex
I.  Annex I to the Agreement is
amended as follows:


 


(i)                                     by
restating in its entirety as of December 31, 2008 the definition of “Indebtedness”
therein to read as follows:


 


“Indebtedness” shall mean, with respect to any
Person (without duplication): (i) all obligations on account of money
borrowed by, or credit extended to or on behalf of, or for or on account of
deposits with or advances to, such Person; (ii) all obligations of such
Person evidenced by bonds, debentures, 
notes or similar instruments; (iii) all obligations of such Person
for the deferred purchase price of property or services other than trade
payables 


 


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incurred in the ordinary course of business and on
terms customary in the trade; (iv) all obligations secured by a Lien on
property owned by such Person (whether or not assumed); and all obligations of
such Person under Capitalized Leases (without regard to any limitation of the
rights and remedies of the holder of such Lien or the lessor under such
Capitalized Lease to repossession or sale of such property); (v) the face
amount of all letters of credit issued for the account of such Person and,
without duplication, the unreimbursed amount of all drafts drawn thereunder, and
all other obligations of such Person associated with such letters of credit or
draws thereon; (vi) all obligations of such Person in respect of
acceptances or similar obligations issued for the account of such Person; (vii) all
obligations of such Person under a project financing or similar arrangement; (viii) all
obligations of such Person under any interest rate or currency protection
agreement, interest rate or currency future, interest rate or currency option,
interest rate or currency swap or cap or other interest rate or currency hedge
agreement; and (ix) all obligations and liabilities with respect to
unfunded vested benefits under any “employee benefit plan” or with respect to
withdrawal liabilities incurred under ERISA by Borrower or any ERISA Affiliate
to a “multiemployer plan”, as such terms are defined under the Employee
Retirement Income Security Act of 1974; provided that in the computation of the
ratio for the fiscal quarters ending December 31, 2008 and thereafter,
Tangible Net Worth will be adjusted by deducting non-controlling interests in
Subsidiaries from liabilities and adding non-controlling interests in
Subsidiaries to equity consistent with GAAP for fiscal quarters ending after December 31,
2008.


 


(ii)                                  by
restating in its entirety as of December 31, 2008 the definition of “Tangible
Net Worth” therein to read as follows:


 


“Tangible Net Worth”,
at any time, shall mean the total of shareholders’ equity (including capital
stock (both common and preferred), additional paid—in capital and retained
earnings after deducting treasury stock of a Person), less the sum of the total
amount of any intangible Assets, which, for purposes of this definition, shall
include, without limitation, general intangibles and, if applicable, all
accounts receivable not incurred in the ordinary course of business from any
Affiliate of such Person or any loans to directors or officers of any Affiliate
of such Person, unamortized deferred charges and good will, all as determined
in accordance with GAAP, provided that in the computation of Tangible Net Worth
for the fiscal quarters ending December 31, 2008 and thereafter, the
definition is amended to add to equity the non-controlling interests in
Subsidiaries consistent with GAAP for fiscal quarters ending after December 31,
2008.


 


4.                                       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:


 


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(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.


 


(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 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 November 12, 2004.


 


(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).


 


6.                                       Ratification
and Release. The Borrower does hereby remise, release and forever discharge
the Agent and the Lenders and each of their respective affiliates, successors,
officers, 


 


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directors, employees, counsel and agents, past and present, and each of
them, of and from any and all manner of actions, and causes of action, suits,
debts, dues, accounts, bonds, covenants, contracts, agreements, judgments,
claims and demands whatsoever in law or in equity, which against the Agent, the
Lenders or any of their respective affiliates, successors, officers, directors,
employees, counsel or agents, or any one or more of them, the Borrower ever
had, now has, or hereafter can, shall or may have for or by reason of any
cause, matter or thing that occurred or did not occur on or prior to the
Amendment Closing Date with respect to the Loan Agreement, this Amendment or
any Security Document or other Loan Document, any previous version hereof or
thereof or any proposed amendment or waiver hereof or thereof.


 


7.                                       Limited
Nature of Amendments and Consent. 
The amendments and consent set forth herein are limited precisely as
written and shall not be deemed to (a) be a consent by the Agent or the
Lenders to any waiver of, or modification of, any other term or condition of
the Agreement, or any of the documents referred to in any of the foregoing or (b) 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 Agreement, or any of the
documents referred to in any of the foregoing. 
Except as expressly amended hereby, the terms and provisions of the
Agreement shall remain in full force and effect.


 


8.                                       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.


 


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.


 


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10.                                 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.


 


11.                                 Writings
Only.  BORROWER HEREBY ACKNOWLEDGES
AND AGREES THAT NO TERM OR PROVISION OF THE AGREEMENT, THE NOTES OR ANY OF THE
OTHER LOAN DOCUMENTS MAY BE CHANGED, WAIVED, SUPPLEMENTED OR OTHERWISE
MODIFIED VERBALLY, BUT ONLY BY AN INSTRUMENT IN WRITING SIGNED BY THE RELEVANT
PARTIES, AS FURTHER PROVIDED IN SECTION 12.2 OF THE CREDIT AGREEMENT.


 


12.                                 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.


 


THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES.


 


13.                                 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.


 


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 and to be effective as of the
date first set forth above.


 


	
   

  	
  BoS(USA) Inc., as Agent
  and as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


 


	
   

  	
  FIRSTCITY FINANCIAL
  CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name: James C. Holmes

  
	
   

  	
   

  	
  Title: Executive Vice
  President

  



 


[Signature Page to Amendment No. 15]


 


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Annex A


 


CONFIRMING CONSENT


 


Reference is hereby made to the foregoing Amendment No. 15
(the “Amendment”) to the Subordinated Delayed Draw Credit Agreement dated as of
March 30, 2009 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 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

  	
   

  
	
   

  	
   

  	
   

  
	
  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

  	
   

  



 


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