THE SUBJECT PORTFOLIO ENTITY OR A PRIMARY
OBLIGOR WHICH DIRECTLY OR INDIRECTLY LOANED OR CONTRIBUTED SUCH FUNDS TO THE
SUBJECT PORTFOLIO ENTITY SIMULTANEOUSLY WITH THE CLOSING OF SUCH ACQUISITION,
THAT THE ENTIRE AMOUNT OF THE CAPITAL CONTRIBUTION BY OTHER HOLDERS OF THE
EQUITY INTERESTS IN SUCH SUBJECT PORTFOLIO ENTITY WERE CONTRIBUTED, AND THE
PROCEEDS OF ALL INDEBTEDNESS INCURRED BY SUCH SUBJECT PORTFOLIO ENTITY WERE
RECEIVED BY SUCH SUBJECT PORTFOLIO ENTITY, AT THE SAME TIME AS OR BEFORE SUCH
PRIMARY OBLIGOR'S CONTRIBUTION OR LOAN, AND THAT SUCH SUBJECT PORTFOLIO ENTITY
USED ALL SUCH LOANS OR CAPITAL CONTRIBUTIONS TOGETHER WITH ALL SUCH PROCEEDS OF
INDEBTEDNESS TO ACQUIRE SUCH ASSET POOL.
AS TO ANY ASSET POOL THAT CONSISTS OF
AN ASSET ORIGINATED BY A CRESTONE PORTFOLIO ENTITY, THERE SHALL HAVE BEEN
9
DELIVERED TO AGENT EVIDENCE SATISFACTORY TO AGENT THAT THE ORIGINATION OF THE
ASSET POOL DESCRIBED IN THE RELATED ASSET POOL ACQUISITION CERTIFICATE SHALL
HAVE BEEN CONSUMMATED IN ACCORDANCE WITH THE TERMS SET FORTH IN THE APPLICABLE
ASSET POOL ACQUISITION CERTIFICATE (WITHOUT ANY WAIVER OF ANY MATERIAL PROVISION
THEREOF BY THE CRESTONE PORTFOLIO ENTITY) AND THE ASSET POOL CONFORMS TO THE
DESCRIPTION THEREOF CONTAINED IN THE ASSET POOL ACQUISITION CERTIFICATE AS
MODIFIED BY REVISIONS PERMITTED BY SECTION 6B.4, THAT THE ENTIRE AMOUNT OF
PROCEEDS OF SUCH LOAN WERE LOANED UNDER THE CRESTONE FACILITY TO THE CRESTONE
PORTFOLIO ENTITY SIMULTANEOUSLY WITH THE FUNDING OF THE ASSET POOL, AND, AND
THAT SUCH CRESTONE PORTFOLIO ENTITY USED ALL SUCH FUNDS TO ORIGINATE THE ASSET
POOL.
(G)
SECTION 7.1.
SECTION 7.1 OF THE AGREEMENT IS AMENDED BY ADDING
THERETO A NEW SUBSECTION (N) TO READ IN ITS ENTIRETY AS FOLLOWS:
(N)
AS SOON AS AVAILABLE AND IN ANY EVENT WITHIN 30 DAYS AFTER THE CLOSE OF
EACH CALENDAR MONTH, AS AT THE END OF SUCH MONTH AND FOR THE PERIOD COMMENCING
AT THE END OF THE PREVIOUS FISCAL YEAR AND ENDING WITH THE END OF SUCH MONTH, A
BALANCE SHEET OF EACH NEW VENTURE, AND THE RELATED STATEMENT OF OPERATIONS FOR
SUCH PERIOD, EACH CERTIFIED BY THE CFO OF SUCH NEW VENTURE AS BEING PREPARED IN
ACCORDANCE WITH GAAP AND TO PRESENT FAIRLY THE FINANCIAL POSITION AND RESULTS OF
OPERATION OF SUCH NEW VENTURE FOR SUCH PERIOD.
(H)
SECTION 8.3(V).
SECTION 8.3(V) OF THE AGREEMENT IS AMENDED AND
RESTATED IN ITS ENTIRETY TO READ AS FOLLOWS:
(V) INDEBTEDNESS OF FIRSTCITY DENVER INVESTMENT CORP. PAYABLE TO FC COMMERCIAL
RELATED TO LOANS MADE BY FC COMMERCIAL TO ENABLE FIRSTCITY DENVER INVESTMENT
CORP. TO FUND LOANS TO CRESTONE PORTFOLIO ENTITIES UNDER THE CRESTONE FACILITY.
(I)
SECTION 8.12(A).
SECTION 8.12(A) OF THE AGREEMENT IS AMENDED AND
RESTATED IN ITS ENTIRETY TO READ AS FOLLOWS:
(A) EXCEPT AS SET FORTH ON SCHEDULE 8.12(A), NONE OF BORROWER, ANY SUBSIDIARY OR
ANY PORTFOLIO ENTITY-50% SHALL MAKE ANY LOAN TO ANY PERSON, OR OTHERWISE INVEST
IN OR ACQUIRE ANY NOTE, BOND, OTHER DEBT INSTRUMENTS OR OBLIGATIONS OF OR ISSUED
BY ANY PERSON EXCEPT (SUBJECT TO COMPLIANCE WITH SECTION 7.15) (I) FOR LOANS
MADE