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EXHIBIT
10.6




FIFTH AMENDMENT TO

RIGHT OF FIRST REFUSAL AGREEMENT

AND

DUE DILIGENCE REIMBURSEMENT AGREEMENT




     THIS FIFTH AMENDMENT (this “Amendment”) TO THAT RIGHT OF FIRST REFUSAL AGREEMENT AND
DUE DILIGENCE REIMBURSEMENT AGREEMENT, (as amended by four (4) mesne amendments, the “Frame
Agreement”) is made and entered into and effective as of the 14th day of April,
2003, 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
dated as of April 6, 2000, together with those two Amendment to Loan Agreement and Extension of
Promissory Note dated as of January 12, 2001 and March 31, 2002 respectively, and that Third
Amendment to Loan Agreement dated as of July 17, 2002 (as thereafter amended, modified, extended,
supplemented or increased from time to time, the “Loan Agreement”) pursuant to which CCC-30
agreed to make advances from time to time (collectively, the “Loan”) to FCH in an amount
not to exceed $35,000,000.00. FCH has requested that CCC-30 agree to extend the Maturity Date (as
defined in the Loan Agreement) to March 31, 2005.



     B. It is a condition precedent to CCC-30’s agreement to so extend the Maturity Date that FCFC
and Servicing execute and deliver this Amendment. Notwithstanding the contemporaneous amendment of
both the Loan Agreement and the Frame Agreement, each of Borrower and CFSC acknowledge that the
Frame Agreement and the Loan Agreement are not linked in any way other than the execution of each
such agreement serving as partial consideration for the execution of the other such agreement.



     C. The parties to the Frame Agreement desire to extend the term of the Frame Agreement from
February 1, 2004 to February 1, 2006 on the terms and conditions herein contained and to amend
certain of the definitions contained in the Frame Agreement as set forth herein.



 









 





     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 Excluded Product. The definition of “Excluded Product” in
Article 1 of the Frame Agreement is hereby amended by deleting the definition in its entirety and
substituting in replacement thereof the following:



“Excluded Product” means (a) any single asset acquisition or portfolio acquisition
with a purchase price or acquisition cost less than the Investment Threshold,
(b) FirstCity’s acquisition or start up of niche or specialty finance
operations or companies (unless FirstCity invites Cargill to participate in
the acquisition or start up of such niche or specialty finance operations or
companies), (c) the acquisition of more than fifty percent (50%) of the stock or other equity
ownerships interest by a FCFC Affiliate relating to the equity interest of any
Person which owns loans, receivables, real estate or related assets (unless
FirstCity invites Cargill to participate in any such acquisition, though the
participation of Cargill will be limited to the extent necessary to preserve the
ability to allow consolidation for tax purposes of FCFC and the acquired entity)
and (d) any product for which Cargill shall have delivered to
FirstCity a negative Transaction Response or CFSC Withdrawal Notice, or failed
to deliver a Transaction Response on or before the Transaction Response Date,
from and after the date of delivery of such response or notice to FirstCity,
or after the Transaction Response Date, as applicable.



     2.02 Amendment to Definition of Geographic Area. The definition of “Geographic Area” in
Article 1 of the Frame Agreement is hereby amended by deleting the definition in its entirety and
substituting in replacement thereof the following:



“Geographic Area” means the United States, Canada, Mexico, Central America and
South America.



     2.03 Amendment to Definition of Investment Threshold. The definition of Investment Threshold
in Article 1 of the Frame Agreement is hereby amended by deleting the definition in its entirety
and substituting in replacement thereof the following:



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“Investment Threshold” means $4,000,000 for Included Product other than Consumer
Assets and $500,000 for Included Product that consists of Consumer Assets
(with the respective thresholds measured in aggregate for each Asset Purchase
Proposal).



     2.04 Amendment to Definition of Monthly Retainer. The definition of “Monthly Retainer” in
Article 1 of the Frame Agreement is hereby amended by deleting the definition in its entirety and
substituting in replacement thereof the following:



“Monthly Retainer” means a monthly payment from CFSC to Servicing as compensation
for the exclusivity provisions of this Agreement, with the gross amount of
such Monthly Retainer paid to Servicing being $22,500 per month; provided,
however, that the gross amount of such Monthly Retainer paid to Servicing
shall be adjusted to reflect Cargill’s contribution to deal flow as provided
for in Article 4 of this Agreement.



     2.05 Amendment to Definition of Termination Date. The definition of “Termination Date” in
Article 1 of the Frame Agreement is hereby amended by deleting “February 1, 2004, or such earlier
or later date as may be agreed to in writing by all parties to this Agreement” and substituting in
replacement thereof the following:



“February 1, 2006; provided, however, that the Termination Date shall be
automatically extended for an additional year (without any additional action
or consent of the parties) on a year-to-year basis until any one or more of
the parties hereto gives written notice to the other parties hereto on or
before July 31 of the calendar year prior to the then applicable Termination
Date that the Termination Date shall not be so automatically extended.”



     2.06 Amendment by Addition of New Section 2.9. Article 2 of the Frame Agreement is hereby
amended by adding the following section as a new Section 2.09.



“Section 2.9 Consumer Investment Threshold Review. The definition of
Investment Threshold in this Agreement shall be reviewed by the parties to the
Agreement during May 1-31, 2004 for possible amendment as set forth in the
remainder of this Section 2.9. If the parties are satisfied with the existing
working arrangement with respect to the Investment Threshold that applies to
Consumer Assets, this Agreement will remain as currently written with respect
to such definition. If, however, CFSC has not actively participated with FCFC
or Servicing or any of their Affiliates in


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pricing any consumer loan portfolios or in the evaluation of any consumer
collection platforms as evidenced by the active involvement of CFSC personnel
other than Kari Johnson or E. Gerald O’Brien II, then the definition of Investment
Threshold shall be amended in its entirety by replacing it with the definition of
Investment Threshold in effect prior to execution of the Fifth Amendment to this
Agreement.



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.



     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.



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     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 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:
	 	  E. Gerald O’Brien II
	 

	 	Title:
	 	  Vice President
	 
	 	 	 	 
	 	 	CFSC CAPITAL CORP. II
	 
	 	 	 	 
	 

	 	BY:	 	 
	 

	 	 	 	 
	 

	 	Name:
	 	  E. Gerald O’Brien II
	 

	 	Title:
	 	  Vice President







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