Exhibit 10.1


 


AMENDMENT NO. 27 TO REVOLVING
CREDIT AGREEMENT


 


AMENDMENT
(this “Amendment”), dated as of December 12, 2008, 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 anticipates receiving cash proceeds from a judgment in certain
litigation in which the Borrower has been engaged; and


 


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, including with respect to the treatment of the proceeds from such
litigation; 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 the
definition of “Base Rate” therein to read as follows:


 


“Base Rate” shall
mean, for any day, a fluctuating rate per annum equal to the highest of (a) the
Federal Funds Rate in effect for such day plus 


 


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1/2 of 1%; (b) the rate of interest in effect for
such day as publicly announced by the Agent from time to time as its “prime
rate”; and (c) the Adjusted One Month LIBOR Rate in effect for such day
plus 1%.  Any change in the Federal Funds
Rate, the Agent’s “prime rate”, or the Adjusted One Month LIBOR Rate shall be
reflected in the Base Rate on the first Business Day such change in the Federal
Funds Rate, the Agent’s “prime rate” or the Adjusted One Month LIBOR Rate, as
the case may be, becomes effective without any requirement for the Agent to
give notice of such change in rate to the Borrower.


 


(ii)           by inserting the following new
definitions therein in appropriate alphabetical order therein:


 


“Adjusted One Month
LIBOR Rate” shall mean, for any day, the rate per annum equal to the
British Bankers Association LIBOR Rate (“BBA LIBOR”), as published by Reuters
(or other commercially available source providing quotations of BBA LIBOR as
designated by the Administrative Agent from time to time) at approximately
11:00 a.m., London time on such day for Dollar deposits with a one month
term.


 


“Litigation” shall
mean Prudential Financial, Inc. v. JP Morgan Chase Bank, National
Association, et. al.


 


“Litigation Net
Proceeds” shall mean the cash received by the Borrower from time to time as
a result of a settlement of the Litigation, less costs, expenses, including,
without limitation, attorneys’ fees, incurred by the Borrower in connection
with the Litigation.


 


(b)           Section 8.18.  Section 8.18(a)(i) and Section 8.18(a)(iii) of
the Agreement are amended and restated in their entirety to read as follows:


 


(i)  maintain a
ratio of Indebtedness to Tangible Net Worth equal to or less than 5.25 to 1.00
for the last day of the fiscal quarter then ended; provided that such ratio
shall reduce to 5.00 to 1.00 effective upon the Borrower’s certification to the
Lenders, and the Lenders’ written approval of such certification, that the
Borrower has received Litigation Net Proceeds of at least $3,500,000;


 


(iii)  maintain a
Tangible Net Worth equal to or greater than $50,000,000 (the “Base”) for the
last day of the fiscal quarter then ended; provided that the Base shall be
increased from time to time by the amount of Litigation Net Proceeds certified
as received by the Borrower (and the Borrower covenants to provide such
certification promptly after receipt of Litigation Net Proceeds from time to
time), such increase to be effective on and as of the Lenders’ written approval
of such certification.


 


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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(f)            Amendment Fee.  The Borrower shall have paid to the Lenders
an amendment fee in the amount of $50,000.


 


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.


 


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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.


 


[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. 27 to Revolving Credit Agreement]


 

















 


Annex A


 


CONFIRMING CONSENT


 


Reference is hereby made to
the foregoing Amendment No. 27 (the “Amendment”) to the Revolving
Credit Agreement dated as of December 12, 2008 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