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 14 th 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.
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:
1.01
Capitalized terms used in this Amendment are defined in the Frame
Agreement, as amended hereby, unless otherwise stated.
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
|
