exv10w4



 






EXHIBIT
10.4




THIRD AMENDMENT TO

RIGHT OF FIRST REFUSAL AGREEMENT

AND

DUE DILIGENCE REIMBURSEMENT AGREEMENT




     THIS THIRD AMENDMENT (this “Amendment”) TO THAT RIGHT OF FIRST REFUSAL AGREEMENT AND
DUE DILIGENCE REIMBURSEMENT AGREEMENT (the “Frame Agreement”) is made and entered into as
of the 6th day of April, 2000, effective as of the 1st day of January, 2001,
by and between FIRSTCITY FINANCIAL CORPORATION, a Delaware corporation (“FCFC”), and
FIRSTCITY SERVICING CORPORATION, a Texas corporation (“Servicing”), on the one hand, and
CARGILL FINANCIAL SERVICES CORPORATION, a Delaware corporation (“CFSC”), and CFSC CAPITAL
CORP. II, a Delaware corporation (“CCCII”), on the other hand.



RECITALS




     A. FirstCity Holdings Corporation (“FCH”), a second tier subsidiary of FCFC, and CFSC Capital
Corp. XXX (“CCC-30”), a wholly owned subsidiary of CFSC, have entered into a Loan Agreement
(as thereafter amended, modified, extended, supplemented or increased from time to time, the
“Loan Agreement”) dated as of even date herewith pursuant to which CCC-30 agreed to make
advances from time to time (collectively, the “Loan”) to FCH in an amount not to exceed
$30,000,000.00.



     B. It is a condition precedent to CCC-30’s funding and advancement of the Loan that FCFC and
Servicing execute and deliver this Amendment.



     C. The parties to the Frame Agreement desire to extend the term of the Frame Agreement from
January 1, 2002 to January 1, 2003 on the terms and conditions herein contained, and to rescind and
nullify a previous increase in the amount of the monthly retainer for due diligence services
payable thereunder.



     NOW, THEREFORE, in good consideration of the premises herein contained and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties,
intending to be legally bound, agree as follows:



ARTICLE I

Definitions




     1.01 Capitalized terms used in this Amendment are defined in the Frame Agreement, as amended
hereby, unless otherwise stated.



 









 





ARTICLE II

Amendments




     2.01 Amendment to Definition of Termination Date. The definition of “Termination
Date” in Article 1 of the Frame Agreement is hereby amended by deleting the phrase “the fourth
anniversary of the Effective Date of this Agreement” and substituting therefor “January 1, 2003,”
so that such definition shall read January 1, 2003, or such earlier or later date as may be agreed
to in writing by all parties to this Agreement.”



     2.02 Amendment to Definition of Monthly Retainer. The amendment to the definition of
“Monthly Retainer” in Article 1 of the Frame Agreement that was effected pursuant to that certain
Second Amendment to Right of First Refusal Agreement and Due Diligence Reimbursement Agreement
among the parties hereto, dated as of April 6, 2000, among the parties hereto is hereby rescinded
and shall be of no force and effect.


The effect of this amendment will be that the dollar amount of the defined Monthly Retainer shall
remain Twenty Thousand Dollars ($20,000.00).




ARTICLE III

No Waiver




     3.01 Except as otherwise specifically provided for in this Amendment, nothing contained herein
shall be construed as a waiver by any party hereto of any covenant or provision of the Frame
Agreement, this Amendment, the Loan Agreement or of any other agreement between or among any of the
parties to the Frame Agreement; and any party’s failure at any time or times hereafter to require
strict performance by any other party of any provision thereof shall not waive, affect or diminish
any right of such party to thereafter demand strict compliance therewith.



ARTICLE IV

Ratifications, Representations and Warranties




     4.01 Ratifications. The terms and provisions set forth in this Amendment shall modify and
supersede all inconsistent terms and provisions set forth in the Frame Agreement, and, except as
expressly modified and superseded by this Amendment, the terms and provisions of the Frame
Agreement are ratified and confirmed and shall continue in full force and effect. The parties
hereto agree that the Frame Agreement, as amended hereby, shall continue to be legal, valid,
binding and enforceable in accordance with its terms.



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     4.02 Representations and Warranties. Each party hereto hereby represents and warrants to each
other party hereto that (a) the execution, delivery and performance of this Amendment has been
authorized by all requisite corporate action on the part of such party and will not violate the
articles of incorporation or bylaws of such party; and (b) such party is in full compliance with
all covenants and agreements contained in the Frame Agreement, as amended hereby.



ARTICLE V

Miscellaneous Provisions




     5.01 Severability. Any provision of this Amendment held by a court of competent jurisdiction
to be invalid or unenforceable shall not impair or invalidate the remainder of this Amendment and
the effect thereof shall be confined to the provision so held to be invalid or unenforceable.



     5.02 Transferability of Agreement. This Amendment shall be binding upon the parties hereto
and their respective successors and permitted assigns.



     5.03 Counterparts. This Amendment may be executed in one or more counterparts, each of which
when so executed shall be deemed to be an original, but all of which when taken together shall
constitute one and the same instrument.



     5.04 Effect of Waiver. No consent or waiver, express or implied, by any party hereto to or
for any breach of or deviation from any covenant or condition by any other party hereto shall be
deemed a consent to or waiver of any other breach of the same or any other covenant, condition or
duty.



     5.05 Headings. The headings, captions, and arrangements used in this Amendment are for
convenience only and shall not affect the interpretation of this Amendment.



     5.06 Applicable Law. THIS AMENDMENT AND ALL OTHER AGREEMENTS EXECUTED PURSUANT HERETO SHALL
BE DEEMED TO HAVE BEEN MADE AND TO BE PERFORMABLE IN AND SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS.



     5.07 Final Agreement. THE FRAME AGREEMENT, AS AMENDED HEREBY, REPRESENTS THE ENTIRE
EXPRESSION OF THE PARTIES WITH RESPECT TO THE SUBJECT MATTER THEREOF ON THE DATE THIS AMENDMENT IS
EXECUTED. THE FRAME AGREEMENT, AS AMENDED HEREBY, MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE



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PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENT BETWEEN THE PARTIES. NO MODIFICATION,
RESCISSION, WAIVER, RELEASE OR AMENDMENT OF ANY PROVISION OF THIS AMENDMENT SHALL BE MADE, EXCEPT
BY A WRITTEN AGREEMENT SIGNED BY THE PARTIES HERETO.



[Signature Page Follows]



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          Executed as of the date first indicated above.



	 	 	 	 	 
	 	 	FIRSTCITY FINANCIAL CORPORATION
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	Name:	 	 
	 

	 	 	 	 
	 

	 	Title:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 	 	FIRSTCITY SERVICING CORPORATION
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	Name:	 	 
	 

	 	 	 	 
	 

	 	Title:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 	 	CARGILL FINANCIAL
SERVICES CORPORATION
	 
	 	 	 	 
	 

	 	BY:	 	 
	 

	 	 	 	 
	 

	 	Name:
	 	  Jeffrey A. Parker
	 

	 	Title:
	 	  Senior Vice President
	 
	 	 	 	 
	 	 	CFSC CAPITAL CORP. II
	 
	 	 	 	 
	 

	 	BY:	 	 
	 

	 	 	 	 
	 

	 	Name:
	 	  Jeffrey A. Parker
	 

	 	Title:
	 	  Senior Vice President






Signature Page to Third Amendment to Right of First Refusal Agreement and Due Diligence

Reimbursement Agreement





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