AS FOLLOWS:
10.33
CRESTONE PORTFOLIO ENTITIES.
FC COMMERCIAL HAS ORGANIZED AN EIGHTY PER
CENT (80%) OWNED SUBSIDIARY, FIRSTCITY DENVER INVESTMENT CORP., IN CONNECTION
WITH CRESTONE PARTNERS, LLC, WHICH OWNS THE REMAINING TWENTY PER CENT (20%)
OWNERSHIP INTEREST, FOR THE PURPOSE OF INVESTING IN (A) DISTRESSED DEBT, (B)
SPECIAL SITUATION MEZZANINE AND BRIDGE LOAN ORIGINATIONS, (C) LEVERAGED BUYOUTS
AND (D) OTHER SPECIAL INVESTMENT OPPORTUNITIES TO BE DETERMINED BY FC COMMERCIAL
AND CRESTONE PARTNERS, LLC.
FIRSTCITY DENVER INVESTMENT CORP. HAS A WHOLLY
OWNED SUBSIDIARY, FIRSTCITY CRESTONE, LLC, WHICH WILL SERVICE ASSETS OWNED BY
SUBSIDIARIES OF FIRSTCITY DENVER INVESTMENT CORP.
FIRSTCITY DENVER INVESTMENT
CORP. WILL PROVIDE FINANCING FOR THE CRESTONE PORTFOLIO ENTITIES PURSUANT TO THE
CRESTONE FACILITY.
12
BORROWER AND LENDERS AGREE THAT THE LOANS MADE TO BORROWER TO BE ADVANCED TO FC
COMMERCIAL AND ADVANCED BY FC COMMERCIAL TO FIRSTCITY DENVER INVESTMENT CORP. TO
ENABLE IT TO MAKE LOANS UNDER THE CRESTONE FACILITY SHALL CONSTITUTE ACQUISITION
LOANS NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT THAT LIMITS ACQUISITION
LOANS TO LOANS MADE TO A PORTFOLIO ENTITY TO ACQUIRE LOANS, ASSETS POOLS OR
OTHER ASSETS, AND THAT THE CRESTONE FACILITY SHALL CONSTITUTE AN APPROVED
PORTFOLIO LEVERAGE ARRANGEMENT NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT
THAT PROVIDES THAT AN APPROVED PORTFOLIO LEVERAGE ARRANGEMENT MUST BE MADE BY A
FINANCIAL INSTITUTION OR THAT LOANS MADE UNDER ANY APPROVED PORTFOLIO LEVERAGE
ARRANGEMENT MUST BE FOR ACQUISITION OF LOANS OR OTHER ASSETS.
BORROWER AND
LENDERS AGREE THAT THE CRESTONE PORTFOLIO ENTITIES SHALL CONSTITUTE ELIGIBLE
PORTFOLIO ENTITIES NOTWITHSTANDING THAT THE ASSETS OF THE CRESTONE PORTFOLIO
ENTITIES WILL BE PLEDGED TO SECURE THE CRESTONE FACILITY.
(P)
EXHIBIT G.
EXHIBIT G (BORROWING BASE CERTIFICATE) TO THE
AGREEMENT IS AMENDED AND RESTATED IN ITS ENTIRETY AS SET FORTH IN EXHIBIT G
HERETO.
(Q)
TERMINATION OF FC HOLDINGS LINE OF CREDIT.
THE FC HOLDINGS LINE
OF CREDIT HAS BEEN FULLY PAID BY FC HOLDINGS AND ALL LIENS AND SECURITY
INTERESTS ARISING UNDER THE HOLDINGS/CFSC LOAN AGREEMENT, THE HOLDINGS/CFSC LOAN
DOCUMENTS AND DOCUMENTS EXECUTED IN CONNECTION THEREWITH HAVE BEEN RELEASED.
THE FOLLOWING TERMS AND PROVISIONS IN THE AGREEMENT SHALL BE DELETED FROM THE
AGREEMENT EFFECTIVE UPON EXECUTION OF THIS AMENDMENT: CFSC, CFSC GUARANTY
SUBORDINATION AGREEMENT, CFSC INTERCREDITOR AGREEMENT, FC HOLDINGS LINE OF
CREDIT, HOLDINGS/CFSC LOAN AGREEMENT, HOLDINGS/CFSC LOAN DOCUMENTS, SHARED
COLLATERAL, SECTION 8.23 AND SECTION 10.33 WHICH IS REPLACE IN THIS AMENDMENT BY
A NEW SECTION 10.33 RELATED TO THE CRESTONE PORTFOLIO ENTITIES WHICH REMAINS IN
FULL FORCE AND EFFECT.
ALL PROVISIONS IN THE AGREEMENT RELATED TO THE FC
HOLDINGS LINE OF CREDIT AND THE TERMS DELETED IN THIS SUBPART (Q) SHALL BE OF NO
FURTHER FORCE OR EFFECT.
4.
CONSENT.
THE BORROWER HAS ADVISED THE AGENT THAT FIRSTCITY MEXICO, SA DE CV
AND CERTAIN AFFILIATES HAVE BEEN REQUESTED TO INDEMNIFY KPMG CARDENAS DOSAL,
S.C. IN CONNECTION WITH ITS PROVISION OF SERVICES RELATING TO TRANSFER PRICING
MATTERS, SUCH INDEMNITY TO BE IN THE FORM OF EXHIBIT 1 HERETO (THE
"INDEMNITY").
THE ISSUANCE OF THE INDEMNITY IS PROHIBITED BY THE AGREEMENT.
In reliance upon the representations,