Exhibit 10.1


 


AMENDMENT NO. 28 TO REVOLVING CREDIT AGREEMENT


 


AMENDMENT No. 28 (this “Amendment”), dated
as of March 30, 2009, among FIRSTCITY FINANCIAL CORPORATION, a Delaware
corporation (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 PLC, acting through
its New York branch, as agent for the Lenders under such Agreement (in such
capacity, the “Agent”), to the Revolving Credit Agreement, dated as of November 12,
2004, among the Borrower, the Lenders and the Agent, as such agreement has been
amended in writing from time to time prior to this Amendment (the “Agreement”).


 


W  I  T  N  E  S  S
E  T  H:


 


WHEREAS,
the Borrower has requested that certain amendments set forth herein be made to
the Agreement 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, 


 


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debentures, 
notes or similar instruments; (iii) all obligations of such Person
for the deferred purchase price of property or services other than trade
payables 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 


 


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representations, warranties and covenants 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.


 


(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).


 


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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, 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.


 


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.


 


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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.


 


[Signature page follows.]


 


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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 Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
   

  	
    Name:

  
	
   

  	
   

  	
    Title:

  
	
   

  	
   

  
	
   

  	
  FIRSTCITY FINANCIAL
  CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
   

  	
    Name:

  
	
   

  	
   

  	
    Title:

  



 


[Signature Page to
Amendment No. 28 to Revolving Credit Agreement]


 

















Annex A


 


CONFIRMING CONSENT


 


Reference
is hereby made to the foregoing Amendment No. 28 (the “Amendment”)
to the Revolving Credit Agreement dated as of March 30, 2009 among the
Borrower, the Lenders and the Agent; said agreement, as previously amended and
modified from time to time prior to the Amendment, as amended and modified by
the Amendment and from time to time hereafter further amended or otherwise
modified, the “Amended  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 the terms “Obligations” and “Secured Obligations” used in
such Loan Documents include all Obligations of the Borrower under the Amended
Agreement; 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 to
any subsequent amendment to the Agreement or the Amended 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 Amended
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

  	
   

  
	
   

  	
   

  	
   

  
	
  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