EXHIBIT 99.1
AMENDED AND RESTATED
AMENDMENT #4 (Option and Option Warrant)
AMENDMENT dated as of December 31, 0000 xxxxxxx XxX (XXX) Inc.
(formerly named IFA Incorporated), an Illinois corporation ("IFA"), and
FirstCity Financial Corporation, a Delaware corporation (the "Company"), to (i)
that certain Option To Acquire Warrant dated as of December 20, 1999 issued by
the Company to IFA (said option, as amended or otherwise modified to date, the
"Option"), and (ii) the form of Warrant attached as Annex A to the Option (said
form of warrant, as amended or otherwise modified to date, the "Option
Warrant").
W I T N E S S E T H :
WHEREAS, the parties hereto desire to amend the Option and the Option
Warrant in certain respects;
NOW, THEREFORE, it is agreed:
I
1.1 Effect of Amendment. As used in any agreements or instruments
referring to the Option or the Option Warrant, from and after the effectiveness
of this Amendment, any reference to the Option shall mean the Option as amended
hereby and any reference to the Option Warrant shall mean the Option Warrant as
amended hereby.
II
OPTION
2.1 Section 1(a). The reference to "August 31, 2001" in the first
sentence of Section 1(a) of the Option is hereby amended to "June 30, 2002". The
reference to "December 31, 2010" in the first sentence of Section 1(a) of the
Option is hereby amended to "June 30, 2011".
III
OPTION WARRANT
3.1 Legend. The first two lines at the top of the second page of Annex
A to the Option are hereby amended to read in their entirety as follows: "VOID
AFTER 5:00 P.M., CENTRAL TIME, ON JUNE 30, 2011".
3.2 Section 1.1(a)(i). The first paragraph of Section 1.1 of the Option
Warrant is hereby amended to read in its entirety as follows:
"(a) (i) This Warrant may be exercised, in whole or from time
to time in part, on or after June 30, 2002 and will expire at 5:00
p.m., Central Time, on June 30, 2011 (the "Expiration Date"). On the
Expiration Date, all rights evidenced by this Warrant shall cease and
this Warrant shall become void."
3.3 Section 1(a)(ii). The first sentence of Section 1.1(a)(ii) of the
Option Warrant is hereby amended to read in its entirety as follows:
"If this Warrant has been issued prior to June 30, 2002 and
if, prior to June 30, 2002, all Tranche C Loans (and all interest and
other amounts payable in connection therewith) shall have
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been indefeasibly paid in full and the Tranche C Commitment permanently
terminated, then this Warrant shall be deemed to have been cancelled
and of no further force or effect as of the date that all of the
aforesaid loans and related amounts were indefeasibly paid in full."
3.4 Section 21.5. Section 21.5(f) of the Option Warrant is hereby
amended to delete "December 31, 2001" therein and insert "June 30, 2002" in its
place.
IV
MISCELLANEOUS
4.1 Limited Nature of Amendments. The amendments set forth herein are
limited precisely as written and shall not be deemed to (a) be a consent to any
waiver of, or modification of, any other term or condition of the Option or the
Option Warrant or (b) prejudice any right or rights which IFA or any holder of
any of the Option or the Option Warrant may now have or may have in the future
under or in connection with the Option or the Option Warrant. Except as
expressly amended hereby, the terms and provisions of the Option shall remain in
full force and effect and those of the Option Warrant shall remain unchanged.
4.2 Governing Law. THIS AMENDMENT, INCLUDING THE VALIDITY THEREOF AND
THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER, SHALL BE GOVERNED BY AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO
THE CONFLICTS OF LAW PROVISIONS) OF THE STATE OF ILLINOIS (OR, IF SUCH CHOICE OF
LAW IS FOR ANY REASON HELD INVALID, THOSE OF THE STATE OF NEW YORK).
4.3 Effectiveness. This Amendment shall become effective when the
Company and IFA shall have executed a copy hereof and each shall have delivered
a copy thereof to the other.
4.4 Headings. The descriptive headings of the various provisions of
this Amendment are inserted for convenience of reference only and shall not be
deemed to affect the meaning or construction of any of the provisions hereof.
4.5. Counterparts. This Amendment may be executed in any number of
counterparts by the different parties hereto on separate counterparts, each of
which when so executed and delivered shall be an original, but all the
counterparts shall together constitute one and the same instrument. Telecopied
signatures hereto shall be of the same force and effect as an original of a
manually signed copy.
4.6. Restatement. This Amendment amends and, as so amended, restates in
its entirety the Amendment between the parties hereto dated as of December 31,
2001 which is titled "AMENDMENT #4 (Option and Option Warrant)".
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their respective duly authorized officers as of
the date first above written.
BoS (USA) Inc.
(formerly IFA Incorporated) FIRSTCITY FINANCIAL CORPORATION
By By
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Name: Xxx Xxxxxx Name:
Title: President Title:
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