Exhibit 10.1
AMENDMENT NO. 27 TO REVOLVING CREDIT
AGREEMENT
AMENDMENT (this “
Amendment ”), dated as of December 12, 2008,
among FIRSTCITY FINANCIAL CORPORATION, a Delaware corporation (the
“ Borrower ”), the financial institutions which
are parties to the Agreement hereinafter referred to (each a
“ Lender ” and collectively, the “
Lenders ”), and BANK OF SCOTLAND PLC, acting through
its New York branch, as agent for the Lenders under such Agreement
(in such capacity, the “ Agent ”), to the
Revolving Credit Agreement, dated as of November 12, 2004,
among the Borrower, the Lenders and the Agent, as such agreement
has been amended in writing from time to time prior to this
Amendment (the “ Agreement ”).
W I T N E S
S E T H :
WHEREAS, the Borrower anticipates
receiving cash proceeds from a judgment in certain litigation in
which the Borrower has been engaged; and
WHEREAS, the Borrower has requested
that certain amendments set forth herein be made to the Agreement
to reflect certain agreements the Lenders and the Borrower have
reached, including with respect to the treatment of the proceeds
from such litigation; and
WHEREAS, subject to the terms and
conditions contained below, the Agent and the Lenders are willing
so to amend the Agreement;
NOW, THEREFORE, it is
agreed:
1.
Definitions . All terms used herein which are defined
in the Agreement (including, to the extent any such terms are to be
added or amended by this Amendment, as if such terms were already
added or amended by this Amendment, unless the context shall
otherwise indicate) shall have the same meanings when used herein
unless otherwise defined herein. All references to Sections
in this Amendment shall be deemed references to Sections in the
Agreement unless otherwise specified.
2.
Effect of Amendment . As used in the 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 (as hereinafter defined), any reference to
the Agreement shall mean the Agreement as amended
hereby.
3.
Amendments . The Agreement is hereby amended as
follows:
(a)
Annex I . Annex I to the Agreement is amended as
follows:
(i)
by restating in its entirety the definition of “Base
Rate” therein to read as follows:
“ Base
Rate ” shall mean, for any day, a fluctuating rate per
annum equal to the highest of (a) the Federal Funds Rate in
effect for such day plus
1
1/2 of 1%;
(b) the rate of interest in effect for such day as publicly
announced by the Agent from time to time as its “prime
rate”; and (c) the Adjusted One Month LIBOR Rate in
effect for such day plus 1%. Any change in the Federal Funds
Rate, the Agent’s “prime rate”, or the Adjusted
One Month LIBOR Rate shall be reflected in the Base Rate on the
first Business Day such change in the Federal Funds Rate, the
Agent’s “prime rate” or the Adjusted One Month
LIBOR Rate, as the case may be, becomes effective without any
requirement for the Agent to give notice of such change in rate to
the Borrower.
(ii)
by inserting the following new definitions therein in appropriate
alphabetical order therein:
“
Adjusted One Month LIBOR Rate ” shall mean, for any
day, the rate per annum equal to the British Bankers Association
LIBOR Rate (“BBA LIBOR”), as published by Reuters (or
other commercially available source providing quotations of BBA
LIBOR as designated by the Administrative Agent from time to time)
at approximately 11:00 a.m., London time on such day for
Dollar deposits with a one month term.
“
Litigation ” shall mean Prudential
Financial, Inc. v. JP Morgan Chase Bank, National Association,
et. al .
“
Litigation Net Proceeds ” shall mean the cash received
by the Borrower from time to time as a result of a settlement of
the Litigation, less costs, expenses, including, without
limitation, attorneys’ fees, incurred by the Borrower in
connection with the Litigation.
(b)
Section 8.18 . Section 8.18(a)(i) and
Section 8.18(a)(iii) of the Agreement are amended and
restated in their entirety to read as follows:
(i)
maintain a ratio of Indebtedness to Tangible Net Worth equal to or
less than 5.25 to 1.00 for the last day of the fiscal quarter then
ended; provided that such ratio shall reduce to 5.00 to 1.00
effective upon the Borrower’s certification to the Lenders,
and the Lenders’ written approval of such certification, that
the Borrower has received Litigation Net Proceeds of at least
$3,500,000;
(iii)
maintain a Tangible Net Worth equal to or greater than $50,000,000
(the “Base”) for the last day of the fiscal quarter
then ended; provided that the Base shall be increased from time to
time by the amount of Litigation Net Proceeds certified as received
by the Borrower (and the Borrower covenants to provide such
certification promptly after receipt of Litigation Net Proceeds
from time to time), such increase to be effective on and as of the
Lenders’ written approval of such certification.
4.
Representations . In order to induce the Agent and the
Lenders to execute this Amendment, the Borrower hereby represents,
warrants and covenants to the Agent and the Lenders as of the date
hereof and (if different) as of the Amendment Closing Date
(which
2
representations, warranties
and covenants shall survive the execution, delivery and
effectiveness of this Amendment) as follows:
(a)
No Default or Event of Default exists nor, after giving effect to
the consents contained herein, will any Default or Event of Default
arise.
(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 enforcem
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