Exhibit 10.2


 


AMENDMENT NO. 14


 


Amendment No. 14 to Subordinated Delayed Draw
Credit Agreement (this “Amendment”), dated as of December 12, 2008, 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
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 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 $25,000.


 


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.


 


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. 14]


 


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Annex A


 


CONFIRMING CONSENT


 


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

  	
   

  	
   

  



 


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  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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