Exhibit
10.2


 


AMENDMENT NO. 12


 


Amendment No. 12 to Subordinated Delayed Draw
Credit Agreement (this “Amendment”), dated as of July 14, 2008, 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 has
requested that the Lenders amend the Loan Agreement to add new Section 8.18(a)(v) and
(vi) thereto; and


 


WHEREAS, the Lenders are willing to consent to the
foregoing on and subject to the terms hereof.


 


NOW THEREFORE, it is agreed:


 


1.                                       Definitions.
All 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.                                       Representations
and Agreements. To induce the Lenders to enter into this Amendment and to
grant the consent contained herein, 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.


 


4.                                       Requests.  Borrower hereby requests that the Lenders
agree to an amendment of the Loan Agreement to add new Section 8.18(a)(v) and
(vi) thereto.


 


5.                                       Amendment.  In reliance upon the representations,
warranties and agreements set forth herein, as of the date hereof, the Loan
Agreement is hereby amended as follows:


 


(a)                                  Annex
I.  Annex I to the Agreement is
amended by inserting the following new definitions in appropriate alphabetical
order therein:


 


“Average RAL NPEV”
shall mean, for any period, the sum of the Borrower’s NPEV reported on the
twelve most recent monthly Borrowing Base Certificates (irrespective of any
Borrowing Base Certificate delivered in connection with a Notice of Borrowing)
delivered by the Borrower pursuant to this Agreement, divided by twelve.


 


“Cash Conversion Rate”
shall mean, for any period, the ratio obtained by dividing Gross Cash
Collections by Average RAL NPEV for such period.


 


“Gross Cash
Collections” shall mean, for any period, the amount of gross cash
collections set forth in the Waterfall Certificate delivered by the Borrower
for such period.


 


“Net Cash Flow”
shall mean, for any period, the amount of Gross Cash Collections less Total
Operating Expenses in such period.


 


“Total Interest and
Fee Expense” shall mean, for any period, total interest and fees payable
during such period by the Borrower under this Agreement and under the RAL.


 


“Total Operating
Expenses” shall mean, for any period, the sum of all cash expenses during
such period of the Borrower, FC Servicing and FC Crestone, determined in
accordance with GAAP and as reflected on the financial statements of each such
entity.


 


(b)                                 Section 8.18(a).  Section 8.18(a) of the Agreement is
amended by adding thereto new subsections (v) and (vi) to read in
their entirety as follows:


 


(v)  maintain a ratio of Net Cash Flow to Total Interest and Fee
Expense of not less than 5.00 to 1.00 for the four fiscal quarters then ended;


 


(vi)  maintain a Cash Conversion Rate of not less than 25% for the
four fiscal quarters then ended;


 


6.                                       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 


 


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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)                                  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: Loan Documentation);


 


(b)                                 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
Default or Event of Default shall exist;


 


(d)                                 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)                                  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.


 


7.                                       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. ‘


 


8.                                       Limited
Nature of Amendments and Waivers. The amendments and waivers set forth
herein are 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 consented to herein, the terms and
provisions of the Loan Agreement and all other Loan Documents remain in full
force and effect.


 


9.                                       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.


 


10.                                 THIS
AMENDMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT AMONG THE
PARTIES HERETO WITH RESPECT TO THE 


 


3

















 


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.


 


11.                                 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.


 


12.                                 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.


 


4

















 


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. 12]


 


5

















 


Annex A


 


CONFIRMING CONSENT


 


Reference is hereby made to the foregoing Amendment No. 12
(the “Amendment”) to the Subordinated Delayed Draw Credit Agreement dated as of
July 14, 2008 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 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. 12]


 

















 


	
  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. 12]