Exhibit 10.2
AMENDMENT NO. 12
Amendment No. 12 to Subordinated Delayed Draw Credit Agreement (this
"Amendment"), dated as of July 14, 2008, among FirstCity Financial Corporation
(the "Borrower"); 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 has requested that the Lenders amend the Loan Agreement to
add new Section 8.18(a)(v) and (vi) thereto; and
WHEREAS, the Lenders are willing to consent to the foregoing on and subject to
the terms hereof.
NOW THEREFORE, it is agreed:
1.
DEFINITIONS. ALL THE CAPITALIZED TERMS
USED HEREIN WHICH ARE DEFINED IN THE LOAN AGREEMENT SHALL HAVE THE SAME MEANINGS
WHEN USED HEREIN UNLESS OTHERWISE DEFINED IN THE RECITALS TO THIS AMENDMENT.
2.
EFFECT OF AMENDMENT.
AS USED IN THE
LOAN 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, ANY
REFERENCE TO THE LOAN AGREEMENT SHALL MEAN THE LOAN AGREEMENT AS AMENDED HEREBY.
3.
REPRESENTATIONS AND AGREEMENTS. TO
INDUCE THE LENDERS TO ENTER INTO THIS AMENDMENT AND TO GRANT THE CONSENT
CONTAINED HEREIN, THE BORROWER HEREBY REPRESENTS AND WARRANTS TO THE LENDERS
(WHICH REPRESENTATIONS AND WARRANTIES ARE MADE AS OF THE DATE HEREOF AND AS OF
THE AMENDMENT CLOSING DATE) AND AGREES FOR THE BENEFIT OF THE LENDERS (WHICH
REPRESENTATIONS, WARRANTIES AND AGREEMENTS SHALL SURVIVE THE EXECUTION, DELIVERY
AND EFFECTIVENESS OF THIS AMENDMENT), AS FOLLOWS:
(A)
NO DEFAULT OR EVENT OF DEFAULT EXISTS.
(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 SEPTEMBER 5, 2007.
4.
REQUESTS.
BORROWER HEREBY REQUESTS
THAT THE LENDERS AGREE TO AN AMENDMENT OF THE LOAN AGREEMENT TO ADD NEW
SECTION 8.18(A)(V) AND (VI) THERETO.
5.
AMENDMENT.
IN RELIANCE UPON THE
REPRESENTATIONS, WARRANTIES AND AGREEMENTS SET FORTH HEREIN, AS OF THE DATE
HEREOF, THE LOAN AGREEMENT IS HEREBY AMENDED AS FOLLOWS:
(A)
ANNEX I.
ANNEX I TO THE AGREEMENT IS
AMENDED BY INSERTING THE FOLLOWING NEW DEFINITIONS IN APPROPRIATE ALPHABETICAL
ORDER THEREIN:
"Average RAL NPEV" shall mean, for any period, the sum of the Borrower's