THIRD AMENDMENT
TO
RIGHT OF FIRST REFUSAL AGREEMENT
AND
DUE DILIGENCE REIMBURSEMENT AGREEMENT
THIS THIRD
AMENDMENT (this “ Amendment ”) TO THAT RIGHT OF
FIRST REFUSAL AGREEMENT AND DUE DILIGENCE REIMBURSEMENT AGREEMENT
(the “ Frame Agreement ”) is made and entered
into as of the 6 th day of April, 2000, effective as of the 1
st day of January, 2001, 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 (as thereafter amended, modified, extended,
supplemented or increased from time to time, the “ Loan
Agreement ”) dated as of even date herewith pursuant to
which CCC-30 agreed to make advances from time to time
(collectively, the “ Loan ”) to FCH in an amount
not to exceed $30,000,000.00.
B. It is a
condition precedent to CCC-30’s funding and advancement of
the Loan that FCFC and Servicing execute and deliver this
Amendment.
C. The
parties to the Frame Agreement desire to extend the term of the
Frame Agreement from January 1, 2002 to January 1, 2003
on the terms and conditions herein contained, and to rescind and
nullify a previous increase in the amount of the monthly retainer
for due diligence services payable thereunder.
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 Termination Date . The
definition of “Termination Date” in Article 1 of
the Frame Agreement is hereby amended by deleting the phrase
“the fourth anniversary of the Effective Date of this
Agreement” and substituting therefor “January 1,
2003,” so that such definition shall read January 1,
2003, or such earlier or later date as may be agreed to in writing
by all parties to this Agreement.”
2.02
Amendment to Definition of Monthly Retainer . The
amendment to the definition of “Monthly Retainer” in
Article 1 of the Frame Agreement that was effected pursuant to
that certain Second Amendment to Right of First Refusal Agreement
and Due Diligence Reimbursement Agreement among the
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