**Exhibit 10.45**

 

**AMENDED AND RESTATED GENERAL CONTINUINGLIMITED GUARANTY**

 

This AMENDED AND RESTATED GENERAL CONTINUINGGUARANTY (this “Guaranty”), dated as of February 18, 2009, isexecuted and delivered by FIRSTCITY FINANCIAL CORPORATION, a Delaware corporation(“Guarantor”), in favor of WELLS FARGO FOOTHILL, LLC., a Delaware limitedliability company (“Lender”), in light of the following:

 

WHEREAS,American Business Lending, Inc., a Texas corporation (“Borrower”),and Lender are parties to that certain Loan Agreement dated as of December 15,2006 (as amended, restated, modified, renewed or extended from time to time,the “Loan Agreement”) and certain other Loan Documents, pursuant towhich Lender has agreed to make certain loans or other financial accommodationsto or for the benefit of Borrower;

 

WHEREAS,Borrower has requested Lender to enter into a Third Amendment to Loan Agreementdated as of February 18, 2009, to be effective as of February 1, 2009(the “Third Amendment”);

 

WHEREAS,Borrower is a wholly-owned subsidiary of FirstCity Business LendingCorporation, a Texas corporation, which is a wholly-owned subsidiary ofGuarantor, and therefore Guarantor will benefit by virtue of the continuedfinancial accommodations extended to Borrower by Lender pursuant to the LoanAgreement as amended by the Third Amendment;

 

WHEREAS,Guarantor has previously executed and delivered to Lender that certain GeneralContinuing Limited Guaranty, dated as of February 27, 2007 (the “OriginalFCF Guaranty”), pursuant to which Guarantor guaranteed a portion ofBorrower’s Obligations to Lender;

 

WHEREAS,a condition precedent to Lender’s willingness to enter into the Third Amendmentis Guarantor’s agreement to amend and restate the Original FCF Guaranty to haveGuarantor guarantee all of Borrower’s Obligations to Lender, subject only tothe “Guaranty Limitation” (as hereinafter defined); and

 

WHEREAS,in order to induce Lender to enter into the Third Amendment and to continue toextend to Borrower the additional financial accommodations provided for in theLoan Agreement as amended by the Third Amendment, Guarantor has agreed toguaranty the Guarantied Obligations as set forth in this Guaranty.

 

NOW,THEREFORE, in consideration of the foregoing, Guarantor hereby agrees asfollows:

 

1              **Definitions and Construction.**

 

 (a)          Definitions.Capitalized terms used herein and not otherwise defined herein shall have themeanings ascribed to them in the Loan Agreement. The following terms, as usedin this Guaranty, shall have the following meanings:

 

 “Borrower”has the meaning set forth in the preamble to this Guaranty.

 

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“Enforcement Costs”has the meaning set forth in Section 12 of this Guaranty.

 

“Guarantied Obligations”means the due and punctual payment of the principal of, and interest (includingany interest that, but for the commencement of an Insolvency Proceeding, wouldhave accrued) on, any and all premium on, and any and all fees, costs,indemnities, and expenses incurred in connection with, the Indebtedness owed byBorrower to Lender or any Bank Product Provider pursuant to the terms of theLoan Agreement or any other Loan Document.

 

“Guarantor” has themeaning set forth in the preamble to this Guaranty. 

 

“Guaranty” has themeaning set forth in the preamble to this Guaranty. 

 

“Guaranty Limitation”has the meaning set forth in Section 2 of this Guaranty.

 

“Indebtedness” meansany and all obligations (including the Obligations), indebtedness, orliabilities of any kind or character arising directly or indirectly out of orin connection with the Loan Agreement or any other Loan Document, including allsuch obligations, indebtedness, or liabilities, whether for principal, interest(including any interest which, but for the provisions of the Bankruptcy Code,would have accrued on such amounts), premium, reimbursement obligations, fees,costs, expenses (including attorneys’ fees), or indemnity obligations, whetherheretofore, now, or hereafter made, incurred, or created, whether voluntarilyor involuntarily made, incurred, or created, whether secured or unsecured (andif secured, regardless of the nature or extent of the security), whetherabsolute or contingent, liquidated or imliquidated, or determined orindeterminate, whether individual or joint liability, and whether recovery isor hereafter becomes barred by any statute of limitations or otherwise becomesunenforceable for any reason whatsoever, including any act or failure to act byLender or any Bank Product Provider.

 

“Lender” has themeaning set forth in the preamble to this Guaranty.

 

“Loan Agreement” hasthe meaning set forth in the recitals to this Guaranty.

 

“Voidable Transfer”has the meaning set forth in Section 9 of this Guaranty.

 

(b)           Construction.Unless the context of this Guaranty clearly requires otherwise, references tothe plural include the singular, references to the singular include the plural,the terms “includes” and “including” are not limiting, and the term “or” has,except where otherwise indicated, the inclusive meaning represented by thephrase “and/or.” The words “hereof,” “herein,” “hereby,” “hereunder,” andsimilar terms in this Guaranty refer to this Guaranty as a whole and not to anyparticular provision of this Guaranty. Section, subsection, clause, schedule,and exhibit references herein are to this Guaranty unless otherwise specified.Any reference in this Guaranty to any agreement, instrument, or document shallinclude all alterations, amendments, changes, extensions, modifications,renewals, replacements, substitutions, joinders, and supplements, thereto andthereof, as applicable (subject to any restrictions on such alterations,amendments, changes, extensions, modifications, renewals, replacements,substitutions, joinders, and supplements set forth herein). Neither thisGuaranty nor any uncertainty or ambiguity herein shall be construed againstLender or Borrower, whether

 

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under any rule of construction or otherwise. On the contrary, thisAgreement has been reviewed by all parties and shall be construed andinterpreted according to the ordinary meaning of the words used so as toaccomplish fairly the purposes and intentions of all parties hereto. Anyreference herein to the satisfaction or payment in full of the GuarantiedObligations shall mean the payment in full in cash (or cash collateralizationin accordance with the terms of the Loan Agreement) of all GuarantiedObligations other than any contingent indemnification Guarantied Obligationsand other than any Bank Product Obligations that, at such time, are allowed bythe applicable Bank Product Provider to remain outstanding and are not requiredto be repaid or cash collateralized pursuant to the provisions of the LoanAgreement. Any reference herein to any Person shall be construed to includesuch Person’s successors and assigns. Any requirement of a writing containedherein shall be satisfied by the transmission of a Record and any Recordtransmitted shall constitute a representation and warranty as to the accuracyand completeness of the information contained therein.

 

**2.****             Guarantied Obligations.** Guarantorhereby irrevocably and unconditionally guaranties to Lender, for the benefit ofLender and the Bank Product Providers, as and for its own debt, until finalpayment in full thereof has been made, the payment of the GuarantiedObligations, when and as the same shall become due and payable, whether atmaturity, pursuant to a mandatory prepayment requirement, by acceleration, orotherwise; it being the intent of Guarantor that the guaranty set forth hereinshall be a guaranty of payment and not a guaranty of collection; provided,however, that in no event shall Guarantor’s liability hereunder (the “GuarantyLimitation”) exceed the sum of (i) Five Million No/100 Dollars($5,000,000.00) and (ii) all of Lender’s Enforcement Costs..

 

**3.****             Extension, Modification or Renewal of GuarantiedObligations.** Subject to the Guaranty Limitation, this Guarantyincludes any extension, modification, or renewal of the Guarantied Obligations,or any change of the interest rate, payment terms, or other terms andconditions of the Guarantied Obligations. If Guarantor revokes or seeks torevoke this Guaranty, Guarantor acknowledges and agrees that (a) no suchrevocation shall be effective until written notice thereof has been received byLender, and (b) no such revocation shall apply to any GuarantiedObligations in existence on such date (including any subsequent continuation,extension, or renewal thereof, or change in the interest rate, payment terms,or other terms and conditions thereof).

 

**4.****             Performance Under this Guaranty.** Inthe event that Borrower fails to make any payment of any GuarantiedObligations, on or prior to the due date thereof, Guarantor immediately shall,subject to the Guaranty Limitation, cause such payment to be made.

 

**5.****             PrimaryObligations.** This Guaranty is a primary and original obligationof Guarantor, is not merely the creation of a surety relationship, and is anabsolute, unconditional, and continuing guaranty of payment and performancewhich shall, subject to the Guaranty Limitation, remain in full force andeffect without respect to future changes in conditions. Guarantor hereby agrees(a) that it is directly, jointly and severally with any other guarantor ofthe Guarantied Obligations, liable to Lender, for its benefit and for thebenefit of the Bank Product Providers, (b) that the obligations ofGuarantor hereunder are independent of the obligations of Borrower or any otherguarantor, and (c) that a separate action may be brought againstGuarantor, whether such action is brought against Borrower or any otherguarantor or

 

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whether Borrower or any other guarantor is joined in such action.Guarantor hereby agrees that its liability hereunder shall be immediate andshall not be contingent upon the exercise or enforcement by Lender or any BankProduct Provider of whatever remedies Lender or any Bank Product Provider mayhave against Borrower or any other guarantor, or the enforcement of any lien orrealization upon any security by Lender or any Bank Product Provider. Guarantorhereby agrees that any release which may be given by Lender or any Bank ProductProvider to Borrower or any other guarantor shall not release Guarantor.Guarantor consents and agrees that neither Lender nor any Bank Product Providershall be under any obligation to marshal any property or assets of Borrower orany other guarantor in favor of Guarantor, or against or in payment of any orall of the Guarantied Obligations.

 

6            Waivers.

 

(a)           Tothe fullest extent permitted by applicable law, Guarantor hereby waives: (i) noticeof acceptance hereof; (ii) notice of any loans or other financialaccommodations made or extended under the Loan Agreement, or the creation orexistence of any Guarantied Obligations; (iii) notice of the amount of theGuarantied Obligations, subject, however, to Guarantor’s right to make inquiryof Lender to ascertain the amount of the Guarantied Obligations at any reasonabletime; (iv) notice of any adverse change in the financial condition ofBorrower or of any other fact that might increase Guarantor’s risk hereunder; (v) noticeof presentment for payment, demand, protest, and notice thereof as to anyinstrument among the Loan Documents; (vi) notice of any Default or Eventof Default under the Loan Agreement; and (vii) all other notices (exceptif such notice is specifically required to be given to Guarantor under thisGuaranty or any other Loan Documents to which Guarantor is a party) and demandsto which Guarantor might otherwise be entitled.

 

(b)           Tothe fullest extent permitted by applicable law, Guarantor hereby waives theright by statute or otherwise to require Lender or any Bank Product Provider toinstitute suit against Borrower or to exhaust any rights and remedies whichLender or any Bank Product Provider has or may have against Borrower. In thisregard, Guarantor agrees that, subject to the Guaranty Limitation., it is boundto the payment of each and all Guarantied Obligations, whether now existing orhereafter arising, as fully as if the Guarantied Obligations were directlyowing to Lender or the Bank Product Providers, as applicable, by Guarantor.Guarantor further waives any defense arising by reason of any disability orother defense (other than the defense that the Guarantied Obligations shallhave been performed and paid in cash, to the extent of such payment) ofBorrower or by reason of the cessation from any cause whatsoever of theliability of Borrower in respect thereof.

 

(c)           Tothe fullest extent permitted by applicable law, Guarantor herebywaives: (i) any right to assert against Lender or any Bank ProductProvider any defense (legal or equitable), set-off; counterclaim, or claimwhich Guarantor may now or at any time hereafter have against Borrower or anyother party liable to Lender or any Bank Product Provider; (ii) anydefense, set-off, counterclaim, or claim, of any kind or nature, arisingdirectly or indirectly from the present or future lack of perfection,sufficiency, validity, or enforceability of the Guarantied Obligations or anysecurity therefor; (iii) any right or defense arising by reason of anyclaim or defense based upon an election of remedies by Lender or any BankProduct Provider; (iv) the benefit of any statute of limitations affectingGuarantor’s liability hereunder or the enforcement

 

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thereof, and any act which shall defer or delay the operation of anystatute of limitations applicable to the Guarantied Obligations shall similarlyoperate to defer or delay the operation of such statute of limitationsapplicable to Guarantor’s liability hereunder.

 

(d)         Untilsuch time as all of the Obligations have been finally paid in full: (i) Guarantorhereby waives and postpones any right of subrogation Guarantor has or may haveas against Borrower with respect to the Guarantied Obligations; (ii) Guarantorhereby waives and postpones any right to proceed against Borrower or any otherPerson, now or hereafter, for contribution, indemnity, reimbursement, or anyother suretyship rights and claims (irrespective of whether direct or indirect,liquidated or contingent), with respect to the Guarantied Obligations; and (iii) Guarantoralso hereby waives and postpones any right to proceed or to seek recourseagainst or with respect to any property or asset of Borrower.

 

(e)          Ifany of the Guarantied Obligations or the obligations of Guarantor under thisGuaranty at any time are secured by a mortgage or deed of trust upon realproperty, Lender or any Bank Product Provider may elect, in its solediscretion, upon a default with respect to the Guarantied Obligations or theobligations of Guarantor under this Guaranty, to foreclose such mortgage ordeed of trust judicially or nonjudicially in any manner permitted by law,before or after enforcing this Guaranty, without diminishing or affecting theliability of Guarantor hereunder. Guarantor understands that (a) by virtueof the operation of antideficiency law applicable to nonjudicial foreclosures,an election by Lender or any Bank Product Provider to nonjudicially forecloseon such a mortgage or deed of trust probably would have the effect of impairingor destroying rights of subrogation, reimbursement, contribution, or indemnityof Guarantor against Borrower or other guarantors or sureties, and (b) absentthe waiver given by Guarantor herein, such an election would estop Lender andthe Bank Product Providers from enforcing this Guaranty against Guarantor.Understanding the foregoing, and understanding that Guarantor hereby isrelinquishing a defenseto the enforceability of this Guaranty, Guarantor hereby waives anyright to assert against Lender or any Bank Product Provider any defense to theenforcement of this Guaranty, whether denominated “estoppel” or otherwise,based on or arising from an election by Lender or any Bank Product Provider tononjudicially foreclose on any such mortgage or deed of trust. Guarantorunderstands that the effect of the foregoing waiver may be that Guarantor mayhave liability hereunder for amounts with respect to which Guarantor may beleft without rights of subrogation, reimbursement, contribution, or indemnityagainst Borrower or other guarantors or sureties.

 

(f)          Withoutlimiting the generality of any other waiver or other provision set forth inthis Guaranty, Guarantor waives all rights and defenses that Guarantor may haveif all or part of the Guarantied Obligations are secured by real property. Thismeans, among other things:

 

(i)              Lenderor any Bank Product Provider may collect from Guarantor without firstforeclosing on any real or personal property collateral that may be pledged byGuarantor, Borrower, or any other guarantor.

 

(ii)             IfLender or any Bank Product Provider forecloses on any real property collateralthat may be pledged by Guarantor, Borrower or any other guarantor:

 

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(1)           Theamount of the Guarantied Obligations or any obligations of any Guarantor inrespect thereof may be reduced only by the price for which that collateral issold at the foreclosure sale, even if the collateral is worth more than thesale price.

 

(2)           Lendermay collect from Guarantor even if Lender or any Bank Product Provider, byforeclosing on the real property collateral, has destroyed any right Guarantormay have to collect from Borrower or any other Guarantor.

 

This is an unconditional and irrevocable waiver of any rights anddefenses Guarantor may have if all or part of the Guarantied Obligations are securedby real property.

 

(g)           Withoutlimiting the generality of any other waiver or other provision set forth inthis Guaranty, Guarantor waives all rights and defenses arising out of anelection of remedies by Lender or any Bank Product Provider, even though suchelection of remedies, such as a nonjudicial foreclosure with respect tosecurity for the Guarantied Obligations, has destroyed Guarantor’s rights ofsubrogation and reimbursement against Borrower by the operation of applicablelaw.

 

(h)           Withoutlimiting the generality of any other waiver or other provision set forth inthis Guaranty, Guarantor hereby agrees as follows:

 

(i)                            Lender’sright to enforce this Guaranty is absolute and is not contingent upon thegenuineness, validity or enforceability of any of the Loan Documents. Guarantoragrees that Lender’s rights under this Guaranty shall be enforceable even ifBorrower had no liability at the time of execution of the Loan Documents orlater ceases to be liable.

 

(ii)                Guarantoragrees that Lender’s rights under the Loan Documents will remain enforceableeven if the amount secured by the Loan Documents is larger in amount and moreburdensome than that for which Borrower is responsible. The enforceability ofthis Guaranty against Guarantor shall continue until all sums due under theLoan Documents have been paid in full and such enforceability shall not be limited oraffected in any way by any impairment or any diminution or loss of value of anysecurity or collateral for Borrower’s obligations under the Loan Documents,from whatever cause, by the failure of any security interest in any suchsecurity or collateral or by any disability or other defense of Borrower, anyother guarantor of Borrower’s obligations under any other Loan Document, anypledgor of collateral for any person’s obligations to Lender or any otherperson in connection with the Loan Documents.

 

(iii)               Guarantorwaives the right to require Lender or any Bank Product Provider to (A) proceedagainst Borrower, any guarantor of Borrower’s obligations under any LoanDocument, any other pledgor of collateral for any person’s obligations toLender or any Bank Product Provider or any other person in connection with theGuarantied Obligations, (B) proceed against or exhaust any other securityor collateral Lender or any Bank Product Provider may hold, or (C) pursueany other right or remedy for Guarantor’s benefit, and agrees that Lender, onbehalf of itself and the Bank Product Providers, may exercise its right underthis Guaranty without taking any action against Borrower, any other guarantorof Borrower’s obligations under the Loan Documents, any pledgor of collateralfor any person’s obligations to

 

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Lenderor any Bank Product Provider or any other person in connection with theGuarantied Obligations, and without proceeding against or exhausting anysecurity or collateral Lender or any Bank Product Provider holds.

 

7.             Releases.Guarantor consents and agrees that, without notice to or by Guarantor andwithout affecting or impairing the obligations of Guarantor hereunder, Lenderor any Bank Product Provider may, by action or inaction, compromise or settle,extend the period of duration or the time for the payment, or discharge theperformance of, or may refuse to, or otherwise not enforce, or may, by actionor inaction, release all or any one or more parties to, any one or more of theterms and provisions of the Loan Agreement or any other Loan Document or maygrant other indulgences to Borrower in respect thereof, or may amend or modifyin any manner and at any time (or from time to time) any one or more of theLoan Agreement or any other Loan Document, or may, by action or inaction,release or substitute any other guarantor, if any, of the Guarantied Obligations,or may enforce, exchange, release, or waive, by action or inaction, anysecurity for the Guarantied Obligations or any other guaranty of the GuarantiedObligations, or any portion thereof.

 

**8.****             No Election.** Lender and the Bank Product Providers shall have the right to seekrecourse against Guarantor to the fullest extent provided for herein and noelection by Lender or any Bank Product Provider to proceed in one form ofaction or proceeding, or against any party, or on any obligation, shall constitutea waiver of Lender’s or any Bank Product Provider’s right to proceed in anyother form of action or proceeding or against other parties unless Lender, onbehalf of itself and the Bank Product Providers, has expressly waived suchright in writing. Specifically, but without limiting the generality of theforegoing, no action or proceeding by Lender or any Bank Product Provider underany document or instrument evidencing the Guarantied Obligations shall serve todiminish the liability of Guarantor under this Guaranty except to the extentthat Lender and the Bank Product Providers finally and unconditionally shallhave realized payment in full of the Guarantied Obligations by such action orproceeding.

 

**9.****             Revival and Reinstatement.** If the incurrence or payment of theGuarantied Obligations or the obligations of Guarantor under this Guaranty byGuarantor or the transfer by Guarantor to Lender of any property of Guarantorshould for any reason subsequently be declared to be void or voidable under anystate or federal law relating to creditors’ rights, including provisions of theBankruptcy Code relating to fraudulent conveyances, preferences, or othervoidable or recoverable payments of money or transfers of property(collectively, a “Voidable Transfer”), and if Lender is required torepay or restore, in whole or in part, any such Voidable Transfer, or elects todo so upon the reasonable advice of its counsel, then, as to any such VoidableTransfer, or the amount thereof that Lender is required or elects to repay orrestore, and as to all reasonable costs, expenses, and attorneys fees of Lenderrelated thereto, the liability of Guarantor automatically shall, subject to theGuaranty Limitation, be revived, reinstated, and restored and shall exist asthough such Voidable Transfer had never been made.

 

**10.****          FinancialCondition of Borrower.**Guarantor represents and warrants to Lender and the Bank Product Providers thatit is currently informed of the financial condition of Borrower and of allother circumstances which a diligent inquiry would reveal and which bear uponthe risk of nonpayment of the Guarantied Obligations. Guarantor furtherrepresents and warrants to Lender and the Bank Product Providers that it hasread and understands the terms and

 

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conditions of the Loan Agreement and each other Loan Document.Guarantor hereby covenants that it will continue to keep itself informed ofBorrower’s financial condition, the financial condition of other guarantors, ifany, and of all other circumstances which bear upon the risk of nonpayment ornonperformance of the Guarantied Obligations.

 

**11.****          Payments;Application.** All payments to be made hereunder by Guarantorshall be made in Dollars, in immediately available funds, and without deduction(whether for taxes or otherwise) or offset and shall be applied to theGuarantied Obligations in accordance with the terms of the Loan Agreement.

 

**12.****          AttorneysFees and Costs.** Guarantor agrees to pay, on demand, allattorneys fees and all other costs and expenses which may be incurred by Lenderin connection with the enforcement of this Guaranty, irrespective of whethersuit is brought (collectively, the “Enforcement Costs”).

 

**13.****          Notices.**All notices and other communications hereunder to Lender shall be in writingand shall be mailed, sent, or delivered in accordance Section 12 ofthe Loan Agreement. All notices and other communications hereunder to Guarantorshall be in writing and shall be mailed, sent, or delivered in care of Borrowerin accordance with Section 12 of the Loan Agreement.

 

**14.****          CumulativeRemedies.** No remedy under this Guaranty, under the LoanAgreement, or any other Loan Document is intended to be exclusive of any otherremedy, but each and every remedy shall be cumulative and in addition to anyand every other remedy given under this Guaranty, under the Loan Agreement, orany other Loan Document, and those provided by law. No delay or omission byLender to exercise any right under this Guaranty shall impair any such rightnor be construed to be a waiver thereof. No failure on the part of Lender toexercise, and no delay in exercising, any right under this Guaranty shalloperate as a waiver thereof; nor shall any single or partial exercise of anyright under this Guaranty preclude any other or further exercise thereof or theexercise of any other right.

 

**15.****          Severabilityof Provisions.** Each provision of this Guaranty shall beseverable from every other provision of this Guaranty for the purpose ofdetermining the legal enforceability of any specific provision.

 

**16.****          EntireAgreement; Amendments.** This Guaranty constitutes the entireagreement between Guarantor and Lender pertaining to the subject mattercontained herein. This Guaranty may not be altered, amended, or modified, normay any provision hereof be waived or noncompliance therewith consented to,except by means of a writing executed by Guarantor and Lender. Any suchalteration, amendment, modification, waiver, or consent shall be effective onlyto the extent specified therein and for the specific purpose for which given.No course of dealing and no delay or waiver of any right or default under thisGuaranty shall be deemed a waiver of any other, similar or dissimilar, right ordefault or otherwise prejudice the rights and remedies hereunder.

 

**17.****          Successorsand Assigns.** This Guaranty shall be binding upon Guarantor andits successors and assigns and shall inure to the benefit of the successors andassigns of Lender and

 

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the Bank Product Providers; provided, however, Guarantor shallnot assign this Guaranty or delegate any of its duties hereunder without Lender’sprior written consent and any unconsented to assignment shall be absolutelyvoid. In the event of any assignment or other transfer of rights by Lender orany Bank Product Provider, the rights and benefits herein conferred upon Lenderand such Bank Product Provider shall automatically extend to and be vested insuch assignee or other transferee.

 

**18.          No Third Party Beneficiary.**This Guaranty is solely for the benefit of Lender, each Bank Product Providerand each of their successors and assigns, and may not be relied on by any otherPerson.

 

**19.          CHOICE OF LAW AND VENUE; JURY TRIALWAIVER.**

 

**THE VALIDITY OF THIS GUARANTY, THE CONSTRUCTION,INTERPRETATION, AND ENFORCEMENT HEREOF, AND THE RIGHTS OF THE PARTIES HERETOWITH RESPECT TO ALL MATTERS ARISING HEREUNDER OR RELATED HERETO SHALL BEDETERMINED UNDER, GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THESTATE OF NEW YORK.**

 

**THE PARTIES AGREE THAT ALL ACTIONS OR PROCEEDINGSARISING IN CONNECTION WITH THIS GUARANTY SHALL BE TRIED AND LITIGATED ONLY INTHE STATE AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW, FEDERAL COURTSLOCATED IN THE COUNTY OF NEW YORK, STATE OF NEW YORK; PROVIDED, HOWEVER, THATANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BEBROUGHT, AT LENDER’S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE LENDERELECTS TO BRING SUCH ACTION OR WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BEFOUND. GUARANTOR AND LENDER WAIVE, TO THE EXTENT PERMITTED UNDER APPLICABLELAW, ANY RIGHT EACH MAY HAVE TO ASSERT THE DOCTRINE OF FORUM NONCONVENIENS OR TO OBJECT TO VENUE TO THE EXTENT ANY PROCEEDING IS BROUGHT INACCORDANCE WITH THIS SECTION 19.**

 

**GUARANTOR AND LENDER HEREBY WAIVE THEIR RESPECTIVERIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISINGOUT OF THIS GUARANTY OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREIN, INCLUDINGCONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAWOR STATUTORY CLAIMS. GUARANTOR AND LENDER REPRESENT THAT EACH HAS REVIEWED THISWAIVER AND EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTSFOLLOWING CONSULTATION WITH LEGAL COUNSEL. IN THE EVENT OF LITIGATION, A COPYOF THIS GUARANTY MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THECOURT.**

 

**20.          Counterparts; TelefacsimileExecution.** Delivery of an executed version of this Guaranty bytelefacsimile shall be equally as effective as delivery of an original executedversion

 

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of this Guaranty. Any party delivering an executed version of thisGuaranty by telefacsimile also shall deliver an original executed version ofthis Guaranty but the failure to deliver an original executed version shall notaffect the validity, enforceability, and binding effect of this Guaranty.

 

21. **Amendment and Restatement of Original FCF Guaranty.**This Guaranty amends and restates in its entirety, and supersedes theobligations of Guarantor under, the Original FCF Guaranty.

 

[Signature page to follow]

 

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IN WITNESS WHEREOF, the undersigned has executed anddelivered this Amended and Restated General Continuing Limited Guaranty as ofthe date first written above.

 
|   | **FIRSTCITY FINANCIAL CORPORATION**, |
|--------|--------------------------------------|
|   | a Delaware corporation               |
|   |                                 |
|   |                                 |
|   | By:                                  |   |
|   | Title:                               |   |

 

[Signature Page to Amended and RestatedGeneral Continuing Limited Guaranty]

 

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