UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) May 17, 2013
FIRSTCITY FINANCIAL CORPORATION
(Exact name of registrant as specified in its charter)
Delaware
(State or other jurisdiction of incorporation)
|
033-19694 |
|
76-0243729 |
|
(Commission File Number) |
|
(IRS Employer Identification No.) |
|
|
|
|
|
6400 Imperial Drive, Waco, TX |
|
76712 |
|
(Address of principal executive offices) |
|
(Zip Code) |
Registrant’s telephone number, including area code (254) 761-2800
Not applicable
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Introduction
As previously disclosed on December 21, 2012, FirstCity Financial Corporation, a Delaware corporation (“FirstCity”), entered into an Agreement and Plan of Merger, dated as of December 20, 2012 (the “Merger Agreement”), with Hotspurs Holdings LLC, a Delaware limited liability company (“Parent”), and Hotspurs Acquisition Corporation, a Delaware corporation (“Merger Subsidiary”). Parent and Merger Subsidiary are affiliates of certain investment funds governed by Värde Partners, Inc. (“Värde”) and managed by Värde Management, L.P., an alternative investment fund manager. Since 2009, almost all of FirstCity’s portfolio asset acquisitions have been made jointly with Värde Investment Partners, L.P. Such joint portfolio acquisitions account for a significant portion of FirstCity’s portfolio assets.
Item 1.01. Entry into a Material Definitive Agreement.
In connection with the Merger (as defined below), on May 17, 2013, FirstCity Commercial Corporation, as borrower, and FLBG Corporation, as guarantor, both of which are subsidiaries of FirstCity, and Bank of Scotland plc, acting through its New York Branch as agent, collateral agent and lender, entered into Amendment No.1 (the “Amendment”) to the Amended and Restated Reducing Note Facility Agreement (the “Facility Agreement”) that such parties had executed previously on December 19, 2011.
Pursuant to the Amendment, the repayment provisions of the Facility Agreement were amended so that the principal balance outstanding on the loans does not exceed the following amounts on the dates indicated: $40.0 million at December 31, 2012; $35.0 million at March 31, 2013; $30.0 million at June 30, 2013; $25.0 million at September 30, 2013; $20.0 million at December 31, 2013; $15.0 million at March 31, 2013; $10.0 million at June 30, 2014; $5.0 million at September 30, 2014; and $0.0 million at December 31, 2014 (maturity).
The foregoing description does not purport to be complete and is qualified in its entirety by reference to the Amendment, a copy of which is filed as Exhibit 10.1 hereto and is incorporated herein by reference.
Item 2.01. Completion of Acquisition or Disposition of Assets.
As disclosed on May 23, 2013, FirstCity’s stockholders adopted the Merger Agreement at a special meeting of stockholders held on May 17, 2013.
Pursuant to the Merger Agreement, on May 17, 2013, Merger Subsidiary merged with and into FirstCity, with FirstCity continuing as the surviving corporation (the “Merger”). Each share of FirstCity’s common stock, par value $0.01 per share (the “Common Stock”), including all shares of FirstCity’s restricted stock, each of which became fully vested immediately prior to the effective time of the Merger, (other than shares held by FirstCity, Parent or any of their wholly-owned subsidiaries and shares held by stockholders who have perfected their appraisal rights under Delaware law), was converted into the right to receive $10.00 in cash, without interest, on the terms and subject to the conditions set forth in the Merger Agreement (the “Merger Consideration”). In addition, each outstanding option to purchase shares of the Common Stock granted under FirstCity’s equity incentive plans or any other agreement (including all such options not then vested or exercisable, each of which became fully vested and exercisable immediately prior to the effective time of the Merger) was cancelled as of the effective time of the Merger. The holders of such stock options are entitled to receive an amount in cash, without interest, equal to (i) the excess, if any, of the Merger Consideration over the per share exercise price of such stock option multiplied by (ii) the aggregate number of shares into which such stock option was exercisable immediately prior to the effective time of the Merger.
At the effective time of the Merger on May 17, 2013, FirstCity became a wholly-owned subsidiary of Parent. The total amount of the consideration payable to former holders of the Common Stock in connection with the Merger was approximately $107 million. The funds used to consummate the Merger were obtained from equity contributions made by entities affiliated with Värde.
The information set forth in the Introduction of this Current Report on Form 8-K is incorporated herein by reference in response to this Item 2.01.
The foregoing summary does not purport to be complete and is qualified in its entirety by reference to the full text of the Merger Agreement, which was filed as Exhibit 2.1 to FirstCity’s Current Report on Form 8-K filed on December 26, 2012, and is incorporated herein by reference.
Item 2.03. Creation of a Direct Financial Obligation or an Obligation Under an Off-Balance Sheet Arrangement of a Registrant.
The information set forth in Item 1.01 of this Current Report on Form 8-K is incorporated herein by reference in response to this Item 2.03.
Item 3.01. Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing.
In connection with the closing of the Merger, FirstCity requested that The NASDAQ Global Select Market (“NASDAQ”) suspend trading in the Common Stock, effective as of May 17, 2013, and file with the Securities and Exchange Commission (the “SEC”) an application on Form 25 in accordance with Rule 12d2-2 promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), to delist the Common Stock as soon as practicable. FirstCity intends to file a Form 15 with the SEC to suspend its reporting obligations with respect to the Common Stock under Sections 13 and 15(d) of the Exchange Act as soon as practicable.
Item 3.03. Material Modification to Rights of Security Holders.
The information set forth in the Introduction and Items 2.01, 3.01 and 5.03 of this Current Report on Form 8-K is incorporated herein by reference in response to this Item 3.03.
Item 5.01. Changes in Control of Registrant.
The information set forth in the Introduction and Items 2.01 and 3.01 of this Current Report on Form 8-K is incorporated herein by reference in response to this Item 5.01.
Item 5.02. Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
As of the effective time of the Merger on May 17, 2013, all of the directors of FirstCity resigned from FirstCity’s board of directors and its committees thereof. On May 17, 2013, Terrence R. DeWitt, James E. Dunbar, James C. Holmes, Mark B. Horrell, Marcia L. Page and Jeffrey A. Thuringer were elected as new directors of FirstCity immediately following the effective time of the Merger.
Immediately following the effective time of the Merger on May 17, 2013, each of FirstCity’s officers other than Mark B. Horrell, James C. Holmes, Terrence R. DeWitt, and Lotte D. Bostick was removed pursuant to action by FirstCity’s board of directors. As a result, immediately following the effective time, each of William P. Hendry, C. Ivan Wilson, James T. Sartain, James W. Moore, Joe S. Greak, J. Bryan Baker, and Suzy Taylor ceased to be an officer of FirstCity.
On May 17, 2013, immediately following the effective time of the Merger, the FirstCity board of directors elected the following persons to the following offices of FirstCity: Mark B. Horrell, President and Chief Executive Officer; Terrence R. DeWitt, Executive Vice President and Chief Credit Officer; James C. Holmes, Executive Vice President and Chief Operating Officer; Lotte D. Bostick, Senior Vice President and Secretary; Kathy McNair, Senior Vice President, Assistant Treasurer and Assistant Secretary; Brent D. McKenzie, Senior Vice President; Steven Hornbaker, Senior Vice President. As previously disclosed on December 26, 2012, Terrence R. DeWitt, James C. Holmes and Mark B. Horrell entered into management agreements with Parent setting forth the terms and conditions of each executive’s employment after the closing of the Merger.
Item 5.03. Amendment to Articles of Incorporation or Bylaws; Change in Fiscal Year.
Pursuant to the Merger Agreement, at the effective time of the Merger, FirstCity’s certificate of incorporation, as in effect immediately prior to the effective time of the Merger, was amended and restated in its entirety (as amended, the “Amended and Restated Certificate of Incorporation”). In addition, pursuant to the terms of the Merger Agreement, at the effective time of the Merger on May 17, 2013, the bylaws of Merger Subsidiary as in effect immediately prior to the effective time of the Merger became the bylaws of FirstCity (the “By-Laws”).
Copies of the Amended and Restated Certificate of Incorporation and the By-Laws of FirstCity are filed as Exhibits 3.1 and 3.2, respectively, hereto and are incorporated by reference herein.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits
|
Exhibit No. |
|
Description |
|
3.1 |
|
Amended and Restated Certificate of Incorporation of FirstCity Financial Corporation |
|
3.2 |
|
By-Laws of FirstCity Financial Corporation |
|
10.1 |
|
Amendment No.1 to the Amended and Restated Reducing Note Facility Agreement, dated as of December 19, 2011, among FirstCity Commercial Corporation, as borrower, FLBG Corporation, as guarantor, and Bank of Scotland plc, as lender, agent and collateral agent |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
|
|
| |
|
|
FIRSTCITY FINANCIAL CORPORATION | |
|
|
| |
|
|
By: |
/s/ Mark B. Horrell |
|
|
|
Name: Mark B. Horrell |
|
|
|
Title: President and Chief Executive Officer |
|
|
| |
|
Date: May 23, 2013 |
| |
EXHIBIT INDEX
|
Exhibit No. |
|
Description |
|
3.1 |
|
Amended and Restated Certificate of Incorporation of FirstCity Financial Corporation |
|
3.2 |
|
By-Laws of FirstCity Financial Corporation |
|
10.1 |
|
Amendment No.1 to the Amended and Restated Reducing Note Facility Agreement, dated as of December 19, 2011, among FirstCity Commercial Corporation, as borrower, FLBG Corporation, as guarantor, and Bank of Scotland plc, as lender, agent and collateral agent |
Exhibit 3.1
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
FIRSTCITY FINANCIAL CORPORATION
FIRST. The name of the corporation is FIRSTCITY FINANCIAL CORPORATION (“Corporation”).
SECOND. The address of the registered office of the Corporation in the state of Delaware is 160 Greentree Drive, Suite 101, Dover, Kent County, Delaware. The name of the registered agent of the Corporation in the State of Delaware at such address is National Registered Agents, Inc.
THIRD. The nature of the business or purpose to be conducted or promoted is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware (the “DGCL”).
FOURTH. The total number of shares of stock which the Corporation shall have authority to issue is one thousand (1,000) shares of common stock, $0.01 par value per share.
FIFTH. The Corporation is to have perpetual existence.
SIXTH. In furtherance and not in limitation of the powers conferred by statute, the board of directors of the Corporation is expressly authorized to make, adopt, alter, amend or repeal the By-laws of the corporation.
SEVENTH. Meetings of the stockholders may be held within or without the State of Delaware, as the By-laws may provide. The books of the Corporation may be kept (subject to any provision contained in the DGCL) outside the State of Delaware at such place or places as may be designated from time to time by the board of directors of the Corporation or in the By-laws of the corporation. Elections of directors of the Corporation need not be by written ballot unless the By-laws of the corporation shall so provide.
EIGHTH. The Corporation reserves the right to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, in the manner now or hereafter prescribed by the DGCL, and all rights conferred upon stockholders herein are granted subject to this reservation.
NINTH.
(a) A director of the Corporation shall not be personally liable either to the Corporation or to any stockholder for monetary damages for breach of fiduciary duty as a director, except (i) for any breach of the director’s duty of loyalty to the Corporation or its stockholders; (ii) for acts or omissions which are not in good faith or which involve intentional misconduct or knowing violation of the law; (iii) for any matter in respect of which such director shall be liable under Section 174 of Title 8 of the DGCL or any amendment thereto or successor
provision thereto; or (iv) for any transaction from which the director shall have derived an improper personal benefit. Neither amendment nor repeal of this paragraph (a) nor the adoption of any provision of this Amended and Restated Certificate of Incorporation inconsistent with this paragraph (a) shall eliminate or reduce the effect of this paragraph (a) in respect of any matter occurring, or any cause of action, suit or claim that, but for this paragraph (a) of this Article, would accrue or arise, prior to such amendment, repeal or adoption of an inconsistent provision.
(b) The Corporation shall indemnify any person who was or is a party or is threatened to be made a party to, or testifies in, any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative in nature, by reason of the fact that such person is or was a director or officer of the Corporation, or is or was serving at the request of the Corporation as a director or officer of another corporation, partnership, joint venture, employee benefit plan, trust, or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding to the full extent permitted by law, and the Corporation may adopt by-laws or enter into agreements with any such person for the purpose of providing for such indemnification.
(c) To the extent that a director or officer of the Corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in paragraph (b) of this Article, or in defense of any claim, issue or matter therein, such person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection therewith.
(d) Expenses incurred by an officer or director in defending or testifying in a civil, criminal, administrative or investigative action, suit or proceeding may be paid by the Corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such officer or director to repay such amount if it shall ultimately be determined that such director or officer is not entitled to be indemnified by the Corporation against such expenses as authorized by this Article, and the Corporation may adopt by-laws or enter into agreements with such persons for the purpose of providing for such advances.
(e) The indemnification permitted by this Article shall not be deemed exclusive of any other rights to which any person may be entitled, or any agreement, vote of stockholders or disinterested directors or otherwise, both as to action in such person’s official capacity and as to action in another capacity while holding an office, and shall continue as to a person who has ceased to be a director or officer and shall inure to the benefit of the heirs, executors and administrators of such person.
(f) Notwithstanding any provision in this Article to the contrary, the Corporation shall not indemnify or advance expenses to any person who was or is a party or is threatened to be made a party to, or testifies in, any threatened, pending or completed action, suit or proceeding if such action, suit or proceeding is based upon or arises out of or is in connection with an event, act or omission occurring prior to October 31, 1992.
(g) The Corporation shall have power to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, employee benefit plan trust or other enterprise against any liability asserted against such person and incurred by such person in any such capacity, or arising out of such person’s status as such, whether or not the Corporation would have the power to indemnify such person against such liability under the provisions of this Article or otherwise.
Exhibit 3.2
BY-LAWS
OF
FIRSTCITY FINANCIAL CORPORATION
ARTICLE I
OFFICES
The registered office of the Corporation shall be in the City of Wilmington, County of New Castle, State of Delaware. The Corporation may also have offices at such other places both within and without the State of Delaware.
ARTICLE II
STOCKHOLDERS
Section 2.1 Time and Place of Meetings. All meetings of the stockholders for the election of directors or for any other purpose shall be held at such time and places, either within or without the State of Delaware, as shall be designated by the Board of Directors. In the absence of any such designation by the Board of Directors, each such meeting shall be held at the principal office of the Corporation.
Section 2.2 Annual Meetings. An annual meeting of stockholders shall be held for the purpose of electing Directors and transacting such other business as may properly be brought before the meeting. The date of the annual meeting shall be determined by the Board of Directors.
Section 2.3 Special Meetings. Special meetings of the stockholders, for any purpose or purposes, unless otherwise prescribed by law, may be called by the President and shall be called by the Secretary at the direction of a majority of the Board of Directors, or at the request in writing of stockholders owning a majority in amount of the entire capital stock of the Corporation issued and outstanding and entitled to vote.
Section 2.4 Notice of Meetings. Written notice of each meeting of the stockholders stating the place, date and time of the meeting shall be given not less than ten nor more than sixty days before the date of the meeting, to each stockholder entitled to vote at such meeting. The notice of any special meeting of stockholders shall state the purpose or purposes for which the meeting is called.
Section 2.5 Quorum. The holders of a majority of the stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business, except as otherwise provided by law. If a quorum is not present or represented, the holders of the stock present in person or represented by proxy at the meeting and entitled to vote thereat shall have power, by the
affirmative vote of the holders of a majority of such stock, to adjourn the meeting to another time and/or place, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting, at which a quorum shall be present or represented, any business may be transacted which might have been transacted at the original meeting. If the adjournment is for more than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.
Section 2.6 Voting. At all meetings of the stockholders, each stockholder shall be entitled to vote, in person or by proxy, the shares of voting stock owned by such stockholder of record on the record date for the meeting. When a quorum is present or represented at any meeting, the vote of the holders of a majority of the stock having voting power present in person or represented by proxy shall decide any question brought before such meeting, unless the question is one upon which, by express provision of law or of the certificate of incorporation, a different vote is required, in which case such express provision shall govern and control the decision of such question.
Section 2.7 Informal Action By Stockholders. Any action required to be taken at a meeting of the stockholders, or any other action which may be taken at a meeting of the stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing.
ARTICLE III
DIRECTORS
Section 3.1 General Powers. The business and affairs of the Corporation shall be managed and controlled by or under the direction of a Board of Directors, which may exercise all such powers of the Corporation and do all such lawful acts and things as are not by law or by the Certificate of Incorporation or by these By-Laws directed or required to be exercised or done by the stockholders.
Section 3.2 Number, Qualification and Tenure. The Board of Directors shall consist of not less than one (1) and not more than nine (9) members. Within the limits above specified, the number of Directors shall be determined from time to time by resolution of the Board of Directors. The Directors shall be elected at the annual meeting of the stockholders, except as provided in Section 3.3 of these By-Laws, and each Director elected shall hold office until his successor is elected and qualified or until his earlier death, resignation or removal. Directors need not be stockholders.
Section 3.3 Vacancies. Vacancies and newly created directorships resulting from any increase in the number of directors may be filled by a majority of the Directors then in office though less than a quorum, and each Director so chosen shall hold office until his successor is
elected and qualified or until his earlier death, resignation or removal. If there are no Directors in office, then an election of Directors may be held in the manner provided by law.
Section 3.4 Place of Meetings. The Board of Directors may hold meetings, both regular and special, either within or without the State of Delaware.
Section 3.5 Regular Meetings. The Board of Directors shall hold a regular meeting, to be known as the annual meeting, immediately following each annual meeting of the stockholders. Other regular meetings of the Board of Directors shall be held at such time and at such place as shall from time to time be determined by the Board of Directors. No notice of regular meetings need be given.
Section 3.6 Special Meetings. Special meetings of the Board of Directors may be called by the President. Special meetings shall be called by the Secretary on the written request of any Director.
Section 3.7 Quorum. At all meetings of the Board of Directors a majority of the total number of Directors shall constitute a quorum for the transaction of business and the act of a majority of the Directors present at any meeting at which there is a quorum shall be the act of the Board of Directors, except as may be otherwise specifically provided by law. If a quorum shall not be present at any meeting of the Board of Directors, the Directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present.
Section 3.8 Organization. The Chairman of the Board of Directors, if elected, shall act as chairman at all meetings of the Board of Directors. If a Chairman of the Board of Directors is not elected or, if elected, is not present, the President (if a member of the Board of Directors) or, in the absence of the President or, if the President is not a member of the Board of Directors, a Vice-Chairman (who is also a member of the Board of Directors and, if more than one, in the order designated by the Board of Directors or, in the absence of such designation, in the order of their election), if any, or if no such Vice-Chairman is present, a Director chosen by a majority of the Directors present, shall act as chairman at meetings of the Board of Directors.
Section 3.9 Executive Committee. (a) The Board of Directors, by resolution adopted by a majority of the whole Board of Directors, may designate one or more Directors to constitute an Executive Committee, to serve as such, unless the resolution designating the Executive Committee is sooner amended or rescinded by the Board of Directors, until the next annual meeting of the Board of Directors or until their respective successors are designated. The Board of Directors, by resolution adopted by a majority of the whole Board of Directors, may also designate additional Directors as alternate members of the Executive Committee to serve as members of the Executive Committee in the place and stead of any regular member or members thereof who may be unable to attend a meeting or otherwise unavailable to act as a member of the Executive Committee. In the absence or disqualification of a member and all alternate members who may serve in the place and stead of such member, the member or members thereof present at any meeting and not disqualified from voting, whether or not such member or members constitute a quorum, may unanimously appoint another Director to act at the meeting in the place of any such absent or disqualified member.
(b) Except as expressly limited by the General Corporation Law of the State of Delaware or the Certificate of Incorporation, the Executive Committee shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation between the meetings of the Board of Directors. The Executive Committee shall keep a record of its acts and proceedings, which shall form a part of the records of the Corporation in the custody of the Secretary, and all actions of the Executive Committee shall be reported to the Board of Directors at the next meeting of the Board of Directors.
(c) Meetings of the Executive Committee may be called at any time by the Chairman of the Board of Directors, the President or any two of its members. No notice of meetings need be given. A majority of the members of the Executive Committee shall constitute a quorum for the transaction of business and, except as expressly limited by this section, the act of a majority of the members present at any meeting at which there is a quorum shall be the act of the Executive Committee. Except as expressly provided in this Section, the Executive Committee shall fix its own rules of procedure.
Section 3.10 Other Committees. The Board of Directors, by resolution adopted by a majority of the whole Board of Directors, may designate one or more other committees, each such committee to consist of one or more Directors. Except as expressly limited by the General Corporation Law of the State of Delaware or the Certificate of Incorporation, any such committee shall have and may exercise such powers as the Board of Directors may determine and specify in the resolution designating such committee. The Board of Directors, by resolution adopted by a majority of the whole Board of Directors, also may designate one or more additional Directors as alternate members of any such committee to replace any absent or disqualified member at any meeting of the committee, and at any time may change the membership of any committee or amend or rescind the resolution designating the committee. In the absence or disqualification of a member or alternate member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not such member or members constitute a quorum, may unanimously appoint another Director to act at the meeting in the place of any such absent or disqualified member, provided that the Director so appointed meets any qualifications stated in the resolution designating the committee. Each committee shall keep a record of proceedings and report the same to the Board of Directors to such extent and in such form as the Board of Directors may require. Unless otherwise provided in the resolution designating a committee, a majority of all of the members of any such committee may select its Chairman, fix its rules or procedure, fix the time and place of its meetings and specify what notice of meetings, if any, shall be given.
Section 3.11 Action without Meeting. Unless otherwise restricted by the Certificate of Incorporation or these By-Laws, any action required or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be taken without a meeting, if all members of the Board of Directors or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board of Directors or committee.
Section 3.12 Attendance by Telephone. Members of the Board of Directors, or of any committee designated by the Board of Directors, may participate in a meeting of the Board of
Directors, or any committee, by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting.
Section 3.13 Compensation. The Board of Directors shall have the authority to fix the compensation of Directors, which may include their expenses, if any, of attendance at each meeting of the Board of Directors. No member of a committee of the Board of Directors shall receive any separate compensation for serving on, or attendance at, such committee or meetings thereof.
ARTICLE IV
OFFICERS
Section 4.1 Enumeration. The officers of the Corporation shall be chosen by the Board of Directors and shall be a President, a Vice President, a Chief Financial Officer and a Secretary. The Board of Directors may also elect one or more Vice Presidents, one or more Assistant Secretaries and such other officers and agents as it shall deem appropriate. Any number of offices may be held by the same person.
Section 4.2 Term of Office. The officers of the Corporation shall be elected at the annual meeting of the Board of Directors and shall hold office until their successors are elected and qualified. Any officer elected or appointed by the Board of Directors may be removed at any time by the Board of Directors. Any vacancy occurring in any office of the Corporation required by this Article 4 shall be filled by the Board of Directors, and any vacancy in any other office may be filled by the Board of Directors.
Section 4.3 President. The President shall be the Chief Executive Officer and Chief Operating Officer of the Corporation and shall have such functions, authority and duties as may be prescribed by the Board of Directors.
Section 4.4 Vice President. The Vice President shall act under the direction of the President and in the absence or disability of the President shall perform the duties and exercise the powers of the President. The Vice President shall perform such other duties and have such other powers as the President or the Board of Directors may from time to time prescribe. The Board of Directors may designate one or more Vice Presidents or may otherwise specify the order of seniority of the Vice Presidents, and, in that event, the duties and power of the President shall descend to the Vice Presidents in the specified order of seniority.
Section 4.5 Secretary. The Secretary shall keep a record of all proceedings of the stockholders of the Corporation and of the Board of Directors, and shall perform like duties for the standing committees when required. The Secretary shall give, or cause to be given, notice, if any, of all meetings of the stockholders and shall perform such other duties as may be prescribed by the Board of Directors or the President. The Secretary shall have custody of the corporate seal of the Corporation and the Secretary, or in the absence of the Secretary any Assistant Secretary, shall have authority to affix the same to any instrument requiring it, and when so affixed it may be attested by the signature of the Secretary or an Assistant Secretary. The Board
of Directors may give general authority to any other officer to affix the seal of the Corporation and to attest such affixing of the seal.
Section 4.6 Assistant Secretary. The Assistant Secretary, or if there be more than one, the Assistant Secretaries in the order determined by the Board of Directors (or if there be no such determination, then in the order of their election), shall, in the absence of the Secretary or in the event of the Secretary’s inability or refusal to act, perform the duties and exercise the powers of the Secretary and shall perform such other duties as may from time to time be prescribed by the Board of Directors, the President or the Secretary.
Section 4.7 Chief Financial Officer. The Chief Financial Officer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the Corporation in such depositories as may be designated by the Board of Directors. The Chief Financial Officer shall disburse the funds of the Corporation as may be ordered by the Board of Directors, taking proper vouchers for such disbursements, and shall render to the President and the Board of Directors, at its regular meetings or when the Board of Directors so requires, an account of all transactions as Chief Financial Officer and of the financial condition of the Corporation. The Chief Financial Officer shall perform such other duties as may from time to time be prescribed by the Board of Directors, the President or the Vice President.
Section 4.8 Other Officers. Any officer who is elected or appointed from time to time by the Board of Directors and whose duties are not specified in these By-Laws shall perform such duties and have such powers as may be prescribed from time to time by the Board of Directors or the President.
ARTICLE V
CERTIFICATES OF STOCK
Section 5.1 Form. The shares of the Corporation shall be represented by certificates; provided, however, that the Board of Directors may provide by resolution or resolutions that some or all of any or all classes or series of the Corporation’s stock shall be uncertificated shares. Certificates of stock in the Corporation, if any, shall be signed by or in the name of the Corporation by the President or a Vice President and by the Chief Financial Officer or the Secretary or an Assistant Secretary of the Corporation. Where a certificate is countersigned by a transfer agent, other than the Corporation or an employee of the Corporation, or by a registrar, the signatures of the President or a Vice President and the Chief Financial Officer or the Secretary or an Assistant Secretary may be facsimiles. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, the certificate may be issued by the Corporation with the same effect as if such officer, transfer agent or registrar were such officer, transfer agent or registrar at the date of its issue.
Section 5.2 Transfer. Upon surrender to the Corporation or the transfer agent of the Corporation of a certificate for shares duly endorsed or accompanied by proper evidence of
succession, assignment or authority to transfer, it shall be the duty of the Corporation to issue a new certificate of stock or uncertificated shares in place of any certificate therefor issued by the Corporation to the person entitled thereto, cancel the old certificate and record the transaction on its books.
Section 5.3 Replacement. In case of the loss, destruction or theft of a certificate for any stock of the Corporation, a new certificate of stock or uncertificated shares in place of any certificate therefor issued by the Corporation may be issued upon satisfactory proof of such loss, destruction or theft and upon such terms as the Board of Directors may prescribe. The Board of Directors may in its discretion require the owner of the lost, destroyed or stolen certificate, or his legal representative, to give the Corporation a bond, in such sum and in such form and with such surety or sureties as it may direct, to indemnify the Corporation against any claim that may be made against it with respect to a certificate alleged to have been lost, destroyed or stolen.
ARTICLE VI
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 6.1 The Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Corporation) by reason of the fact that he is or was a director or officer of the Corporation, or is or was serving at the request of the Corporation as a director or officer of another corporation, partnership, joint venture, trust or other enterprise (and the Corporation, in the discretion of the Board of Directors, may so indemnify a person by reason of the fact that he is or was an employee or agent of the Corporation or is or was serving at the request of the Corporation in any other capacity for or on behalf of the Corporation or was serving at the request of the Corporation as an employee or agent of another corporation, partnership, joint venture, trust or other enterprise), against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was unlawful.
Section 6.2 The Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that he is or was a director or officer of the Corporation, or is or was serving at the request of the Corporation as a director or officer of another corporation, partnership, joint venture, trust or other enterprise (and the Corporation, in the discretion of the Board of Directors, may so indemnify a person by reason of the fact that he is or was an employee or agent of the Corporation or is or was serving at the request of the Corporation in any other capacity for or on behalf of the Corporation or was
serving at the request of the Corporation as an employee or agent of another corporation, partnership, joint venture, trust or other enterprise) against expenses (including attorneys’ fees) actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the Corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper.
Section 6.3 To the extent that a present or former director or officer of the Corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in Sections 6.1 and 6.2 of these By-Laws, or in defense of any claim, issue or matter therein, such person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection therewith.
Section 6.4 Any indemnification under Sections 6.1 and 6.2 of these By-Laws (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the present or former director, officer, employee, agent or representative is proper in the circumstances because he has met the applicable standard of conduct set forth in Sections 6.1 and 6.2 of these By-Laws. Such determination shall be made, with respect to a person who is a director or officer at the time of determination, (1) by the Board of Directors by a majority vote of a quorum consisting of directors who were not parties to such action, suit or proceeding, even though less than a quorum, or (2) by a committee of such directors designated by majority vote of such directs, even though less than a quorum, or (3) if there are no such directors, or if such directors so direct, by independent legal counsel in a written opinion, or (4) by the stockholders.
Section 6.5 Expenses (including attorneys’ fees) by an officer or director incurred in defending any civil, criminal, administrative or investigative action, suit or proceeding shall be paid by the Corporation in advance of the final disposition of such action, suit or proceeding as authorized by the Board of Directors upon receipt of an undertaking by or on behalf of such director or officer to repay such amount unless it shall ultimately be determined that such person is not entitled to be indemnified by the Corporation under this Article. Such expenses (including attorneys’ fees) incurred by former directors and officers or other employees and agents may be so paid upon such terms and conditions, if any, as the Corporation deems appropriate.
Section 6.6 The indemnification and advancement of expenses provided by this Article 6 shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any by-law, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in such person’s official capacity and as to action in another capacity while holding such office.
Section 6.7 The Corporation may purchase and maintain insurance on behalf of any person who is or was a director, officer, employee, agent or representative of the Corporation, or
is or was serving at the request of the Corporation as a director, officer, employee, agent or representative of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against such person and incurred by such person in any such capacity, or arising out of such person’s status as such, whether or not such person would be entitled to indemnity against such liability under the provisions of this Article 6.
Section 6.8 For purposes of this Article 6, references to “the corporation” shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, and employees or agents, so that any person who is or was a director, officer, employee or agent of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, shall stand in the same position under this section with respect to the resulting or surviving corporation as such person would have with respect to such constituent corporation if its separate existence had continued.
Section 6.9 For purposes of this section, references to “other enterprises” shall include employee benefit plans; references to “fines” shall include any excise taxes assessed on a person with respect to any employee benefit plan; and references to “serving at the request of the corporation” shall include any service as a director, officer, employee or agent of the Corporation which imposes duties on, or involves services by, such director, officer, employee, or agent with respect to an employee benefit plan, its participants or beneficiaries; and a person who acted in good faith and in a manner such person reasonable believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a matter “not opposed to the best interests of the corporation” as referred to in this Article 6.
Section 6.10 The indemnification and advancement of expenses provided by, or granted pursuant to, this section shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person.
ARTICLE VII
GENERAL PROVISIONS
Section 7.1 Fiscal Year. The fiscal year of the Corporation shall be fixed by resolution of the Board of Directors.
Section 7.2 Corporate Seal. The corporate seal shall be in such form as may be approved from time to time by the Board of Directors. The seal may be used by causing it or a facsimile thereof to be impressed or affixed or in any other manner reproduced.
Section 7.3 Waiver of Notice. Whenever any notice is required to be given under law or the provisions of the Certificate of Incorporation or these By-Laws, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent to notice.
ARTICLE VIII
AMENDMENTS
These By-Laws may be altered, amended or repealed or new By-Laws may be adopted by the Board of Directors. The fact that the power to amend, alter, repeal or adopt the By-Laws has been conferred upon the Board of Directors shall not divest the stockholders of the same powers.
Exhibit 10.1
EXECUTION COPY
AMENDMENT No. 1 TO AMENDED AND RESTATED
REDUCING NOTE FACILITY AGREEMENT
AMENDMENT No. 1 TO AMENDED AND RESTATED REDUCING NOTE FACILITY AGREEMENT (this “Amendment”) dated as of May 17, 2013 among FIRSTCITY COMMERCIAL CORPORATION (the “Borrower”), FLBG CORPORATION (“FLBG”) and the financial institutions (each a “Lender” and collectively, the “Lenders”) party to the Amended and Restated Note Facility Agreement dated as of December 19, 2011 (as heretofore amended or otherwise modified, the “Loan Agreement”), among the Borrower, FLBG, as Guarantor, the Lenders and BANK OF SCOTLAND PLC, acting through its New York Branch, as Agent and Collateral Agent for the Lenders (the “Agent”).
W I T N E S S E T H:
WHEREAS, pursuant to an Agreement and Plan of Merger, dated December 20, 2012, among Hotspurs Holdings LLC, a Delaware limited liability company (“Parent”), Hotspurs Acquisition Corporation, a Delaware corporation (“Merger Sub”), and FirstCity Financial Corporation (“FC”) (the “Merger Agreement”), Merger Sub has agreed to merge with and into FC, and FC shall continue as the surviving entity (the “Survivor”); and
WHEREAS, simultaneously with the execution and delivery of this Amendment, the Merger, as defined in the Merger Agreement, is effective; and
WHEREAS, the Lenders and the Agent have consented to the Merger by executing and delivering that certain Consent No. 4 (the “Consent”) dated December 6, 2012; and
WHEREAS, a condition to the Consent is that the parties hereto shall execute and deliver this Amendment;
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) 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) Section 5.3. Section 5.3(vi) of the Agreement is hereby amended and restated to read in its entirety as follows:
(vi) Sixth, to the payment to Agent, for the account of Lender; provided, however, that in the event the payment required by this Section 5.3(vi) fails to reduce the outstanding principal balance on the Loans to the following amounts as of the following dates, the Borrower shall pay to the Agent, for the account of Lender, on or before the following dates such amount as is necessary to reduce such balance to not more than the amounts indicated below corresponding to such dates (and a failure to make any such payment shall be an Event of Default under Section 9.1 of this Agreement):
|
December 31, 2012 |
|
$ |
40,000,000 |
|
|
March 31, 2013 |
|
$ |
35,000,000 |
|
|
June 30, 2013 |
|
$ |
30,000,000 |
|
|
September 30, 2013 |
|
$ |
25,000,000 |
|
|
December 31, 2013 |
|
$ |
20,000,000 |
|
|
March 31, 2014 |
|
$ |
15,000,000 |
|
|
June 30, 2014 |
|
$ |
10,000,000 |
|
|
September 30, 2014 |
|
$ |
5,000,000 |
|
|
December 31, 2014 |
|
$ |
0 |
|
(b) Section 9.16. Section 9.16 of the Agreement is hereby amended and restated to read in its entirety as follows:
Management. If, without the prior written consent of Lender, a Key Employee ceases to be employed full-time with FC Servicing, Borrower or FC, such occurrence shall be an Event of Default unless FC Servicing, Borrower or FC, as the case may be, employs a replacement officer having the duties of such Key Employee within sixty (60) days after such Key Employee ceases to be employed, such replacement officer to be subject to the approval of Lender, such approval not to be unreasonably withheld; or
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 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 as of the date hereof with the same effect as though made at and as of such date (except for those that specifically speak as of a prior date).
(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 enforcement of creditors’ rights generally and to general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law).
(e) No Material Adverse Change has occurred since December 19, 2011.
5. Effectiveness. This Amendment shall become effective as of the date hereof when each of the following conditions (the first date on which all such conditions have been so satisfied (or waived) is herein referred to as the “Amendment Closing Date”) has been fulfilled to the satisfaction of the Agent (or waived by the Agent in its sole discretion).
(a) Signed Copies. The Borrower, the Lenders and the Agent shall have executed a copy hereof and delivered the same to the Agent at 1095 Avenue of the Americas, New York, New York 10036 (Attention: Loan Administration) or such other place directed by the Agent.
(b) No Change. On the Amendment Closing Date, both before and after giving effect to the transactions contemplated by this Amendment to be effective on the Amendment Closing Date, no Material Adverse Change shall have occurred since December 19, 2011.
(c) Guarantor’s Consent. Each Guarantor shall have executed a confirming consent, substantially in the form attached hereto as Annex A or otherwise satisfactory to the Agent (a “Confirming Consent”), and delivered the same to the Agent at 1095 Avenue of the Americas, New York, New York 10036 (Attention: Loan Administration) or such other place directed by the Agent.
(d) No Defaults. No Default or Event of Default shall exist.
(e) Accuracy of Representations; Opinion of Counsel. Each representation and warranty made by the Borrower and each other Loan Party in the Agreement and the other Loan Documents shall be true and correct in all material respects as of the Amendment Closing Date with the same effect as though made at and as of such date (except for those that specifically speak as of a prior date). The Lenders and the Agent shall have received an opinion of counsel to the Borrower, in form, scope and substance satisfactory to the Lenders and the Agent, as to, inter alia, the due authorization, execution, and delivery and enforceability of this Amendment and the Assumption Agreement to which this Amendment is an Exhibit.
6. Release. The Borrower does hereby remise, release and forever discharge the Agent and the Lenders and each of their respective affiliates, successors, officers, directors, employees, counsel and agents, past and present, and each of them, of and from any and all manner of actions, and causes of action, suits, debts, dues, accounts, bonds, covenants, contracts, agreements, judgments, claims and demands whatsoever in law or in equity, which against the
Agent, the Lenders or any of their respective affiliates, successors, officers, directors, employees, counsel or agents, or any one or more of them, the Borrower ever had, now has, or hereafter can, shall or may have for or by reason of any cause, matter or thing that occurred or did not occur on or prior to the Amendment Closing Date with respect to the Loan Agreement, this Amendment or any Security Document or other Loan Document, any previous version hereof or thereof or any proposed amendment or waiver hereof or thereof.
7. Limited Nature of Amendments. The amendments set forth herein are limited precisely as written and shall not be deemed to (a) be a consent by the Agent or the Lenders to any waiver of, or modification of, any other term or condition of the Agreement, or any of the documents referred to in any of the foregoing or (b) prejudice any right or rights which any of the Lenders or the Agent may now have or may have in the future under or in connection with the Agreement, or any of the documents referred to in any of the foregoing. Except as expressly amended hereby, the terms and provisions of the Agreement shall remain in full force and effect.
8. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO CHOICE OF LAW DOCTRINE THAT WOULD RESULT IN THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.
9. Jurisdiction, Waiver of Jury Trial. THE BORROWER HEREBY AGREES THAT ANY LEGAL ACTION OR PROCEEDING AGAINST IT WITH RESPECT TO THIS AMENDMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK LOCATED IN NEW YORK CITY OR OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK AS THE AGENT OR ANY LENDER MAY ELECT, AND, BY EXECUTION AND DELIVERY HEREOF, THE BORROWER ACCEPTS AND CONSENTS FOR ITSELF AND IN RESPECT TO ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS, UNLESS WAIVED IN WRITING BY THE AGENT AND THE MAJORITY LENDERS. EACH OF THE BORROWER, THE AGENT AND THE LENDERS HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY AND ALL RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED ON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AMENDMENT OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN), OR ACTIONS OF THE BORROWER, ANY AFFILIATE OF THE BORROWER, THE AGENT OR ANY LENDER. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE AGENT AND THE LENDER ENTERING INTO THIS AMENDMENT.
10. 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.
11. Entire Agreement. THIS AMENDMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES HERETO WITH RESPECT TO THE MATTERS COVERED HEREBY AND THEREBY AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
12. Counterparts. This Amendment may be executed in any number of counterparts, and by the different parties on the same or separate counterparts, each of which when so executed and delivered shall be deemed to be an original, but all of which together shall constitute one and the same agreement. Telecopied signatures hereto and to the Confirming Consent (or signatures delivered by other electronic transmission such as pdf) shall be of the same force and effect as an original of a manually signed copy.
[Signature page follows.]
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 shown.
|
|
BANK OF SCOTLAND PLC, acting through its New York branch, as Agent and as Lender | |
|
|
| |
|
|
| |
|
|
By |
/s/ Stephen Giacolone |
|
|
Name: Stephen Giacolone | |
|
|
Title: Assistant Vice President | |
|
|
| |
|
|
| |
|
|
FIRSTCITY COMMERCIAL CORPORATION | |
|
|
| |
|
|
| |
|
|
By |
/s/ James C. Holmes |
|
|
Name: James C. Holmes | |
|
|
Title: Executive Vice President | |
|
|
| |
|
|
| |
|
|
FLBG CORPORATION | |
|
|
| |
|
|
| |
|
|
By |
/s/ James C. Holmes |
|
|
Name: James C. Holmes | |
|
|
Title: Executive Vice President | |
[Signature Page to Amendment No. 1 to Amended and Restated Reducing Note Facility Agreement]
Annex A
CONFIRMING CONSENT
Reference is hereby made to the foregoing Amendment No. 1 to Amendment and Restated Reducing Note Facility Agreement dated as of May 17, 2013 (the “Amendment”) among the Borrower, FLBG Corporation, the Lenders and the Agent and Collateral Agent to the Amended and Restated Reducing Note Facility Agreement referenced therein (said agreement, as from time to time amended or otherwise modified, the “Agreement”).
Each Guarantor hereby consents to the terms and provisions of the Amendment and confirms and acknowledges that:
(a) its obligations under the Loan Documents to which it is a party remain in full force and effect; and
(b) its consent and acknowledgement hereunder is not required under the terms of such Loan Documents and any failure to obtain its consent or acknowledgment in connection herewith or with any subsequent consent, waiver or amendment to the Agreement or any of the other Loan Documents will not affect the validity of its obligations under the aforesaid Loan Documents or any other Loan Document, and this consent and acknowledgement is being delivered for purposes of form only.
Capitalized terms used herein and not otherwise defined have the same meanings as in the Agreement. This Consent is dated as of the Amendment Closing Date (as defined in the Amendment).
|
FIRSTCITY FINANCIAL CORPORATION | ||
|
|
| |
|
|
| |
|
By: |
/s/ James C. Holmes |
|
|
|
Name: James C. Holmes |
|
|
|
Title: Executive Vice President |
|
|
|
|
|
|
FH PARTNERS LLC | ||
|
|
| |
|
|
| |
|
By: |
/s/ James C. Holmes |
|
|
|
Name: James C. Holmes |
|
|
|
Title: Executive Vice President |
|
|
FIRSTCITY HOLDINGS CORPORATION OF MINNESOTA | ||
|
|
| |
|
|
| |
|
By: |
/s/ James C. Holmes |
|
|
|
Name: James C. Holmes |
|
|
|
Title: Executive Vice President |
|
|
|
|
|
|
FC CAPITAL CORP. | ||
|
|
| |
|
|
| |
|
By: |
/s/ James C. Holmes |
|
|
|
Name: James C. Holmes |
|
|
|
Title: Executive Vice President |
|
|
|
|
|
|
FIRSTCITY EUROPE CORPORATION | ||
|
|
| |
|
|
| |
|
By: |
/s/ James C. Holmes |
|
|
|
Name: James C. Holmes |
|
|
|
Title: Executive Vice President |
|
|
|
|
|
|
FIRSTCITY INTERNATIONAL CORPORATION | ||
|
|
| |
|
|
| |
|
By: |
/s/ James C. Holmes |
|
|
|
Name: James C. Holmes |
|
|
|
Title: Executive Vice President |
|
|
|
|
|
|
FIRSTCITY MEXICO, INC. | ||
|
|
| |
|
|
| |
|
By: |
/s/ James C. Holmes |
|
|
|
Name: James C. Holmes |
|
|
|
Title: Executive Vice President |
|
|
|
|
|
|
FLBG CORPORATION | ||
|
|
| |
|
|
| |
|
By: |
/s/ James C. Holmes |
|
|
|
Name: James C. Holmes |
|
|
|
Title: Executive Vice President |
|
|
FLBG HOLDINGS INVESTMENT LP | ||
|
|
| |
|
|
| |
|
By: |
/s/ James C. Holmes |
|
|
|
Name: James C. Holmes |
|
|
|
Title: Executive Vice President |
|
|
|
|
|
|
FLBG HOLDINGS GP CORP. | ||
|
|
| |
|
|
| |
|
By: |
/s/ James C. Holmes |
|
|
|
Name: James C. Holmes |
|
|
|
Title: Executive Vice President |
|
|
|
|
|
|
FLBG HOLDINGS CORP. | ||
|
|
| |
|
|
| |
|
By: |
/s/ James C. Holmes |
|
|
|
Name: James C. Holmes |
|
|
|
Title: Executive Vice President |
|