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EXHIBIT 10.11
FIRST AMENDMENT
TO
REVOLVING CREDIT AND SECURITY AGREEMENT
First Amendment, dated as of February 28, 1999 to the
Revolving Credit and Security Agreement, dated as of October 12, 1998 (the
"Agreement"), among Cityscape Corp., a New York corporation (the "Borrower"),
Cityscape Financial Corp., a Delaware corporation (the "Guarantor"), the
financial institutions party thereto (each a "Lender" and collectively, the
"Lenders"), and The CIT Group/Equipment Financing, Inc., as agent for the
Lenders (in such capacity, the "Agent").
The Borrower, the Guarantor, the Lenders and the Agent desire
to amend certain terms of the Agreement. Accordingly, the Borrower, the
Guarantor, the Agent and the Lenders hereby agree as follows:
1. Definitions. All capitalized terms used herein and not
otherwise defined herein are used herein as defined in the Agreement.
2. Termination Date. Clause (5) of Section 2.01 of the
Agreement is hereby amended by deleting the date "March 1, 1999" and
substituting in lieu thereof the following:
"(5) March 31, 1999 (the "Termination Date");
provided, that the Borrower may extend the date set forth in Clause (5)
of this Section to a date seven calendar days after such date and each
successive seven calendar day period thereafter until April 30, 1999,
by (i) delivering written notice to the Agent, given no less than two
Business Days before the then scheduled Termination Date, of the
Borrower's intention to extend the Termination Date for an additional
seven calendar day period, and (ii) paying to the Agent, for the
account of each Lender in accordance with such Lender's Pro Rata Share,
a non-refundable extension fee of $5,000 but only in connection with
the delivery of an extension notice described in clause (i) relating to
the third and fourth calendar weeks of April, 1999."
3. Interest Rate. The Borrower and the Lenders hereby agree
that, from and after February 28, 1999, until the Loans are paid in full,
interest on the unpaid principal amount of each Loan shall accrue at a rate per
annum equal to the Prime Rate plus 2.00%; provided, that, notwithstanding any
provision to the contrary in the Agreement, such accrued interest shall be due
and payable monthly on the first calendar day of each month and on the
Termination Date.
4. Commitment; Acknowledgement of Debt. (a) Pursuant to
Section 2.06(a) of the Agreement, the Borrower elects to reduce from time to
time, and the Lenders acknowledge the reduction of, the Total Commitment from
$40,000,000 to an amount equal to the aggregate
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unpaid principal amount of the Loans from time to time, effective as of March 5,
1999. From and after March 5, 1999, no Unused Line Fee shall accrue.
(b) The Borrower hereby agrees that it shall not borrow
additional Loans pursuant to the Agreement after the Amendment Effective Date.
5. Conditions to Effectiveness. This Amendment shall become
effective only upon satisfaction in full of the following conditions precedent
(the first date upon which all such conditions shall have been satisfied being
herein called the "Amendment Effective Date"):
(i) The representations and warranties contained in
this Amendment and in Article VI of the Agreement shall be true and
correct on and as of the Amendment Effective Date as though made on and
as of such date (except where such representations and warranties
relate to an earlier date in which case such representations and
warranties shall be true and correct as of such earlier date); no Event
of Default or Default shall have occurred and be continuing on the
Amendment Effective Date, or result from this Amendment becoming
effective in accordance with its terms, except as otherwise disclosed
to the Lenders in accordance with Section 6(a) hereof.
(ii) The Agent shall have received counterparts of
this Amendment which bear the signatures of the Borrower, the Guarantor
and each of the Lenders.
(iii) This Amendment shall have been submitted to the
Bankruptcy Court for approval on or before March 5, 1999.
(iv) This Amendment shall have been approved by the
Bankruptcy Court.
(v) The Borrower shall have paid to the Agent, for
the account of each Lender in accordance with such Lender's Pro Rata
Share, a non-refundable amendment fee of $50,000.
(vi) All legal matters incident to this Amendment
shall be satisfactory to the Agent and its counsel.
6. Waiver, Consent and Agreement. (a) The Lenders hereby
consent to and waive any Default or Event of Default existing on or prior to the
Amendment Effective Date but only to the extent (i) the Lenders have knowledge
that such Default or Event of Default exists on the Amendment Effective Date and
(ii) the Borrower has delivered to the Agent and each Lender, pursuant to
Section 7.08(7) of the Agreement, written notice setting forth the details of
such Default or Event of Default and the action, if any, proposed to be taken by
the Borrower with respect thereto.
(b) In addition, pursuant to Section 8.01(E) of the Agreement,
the Agent hereby consents to the amendment of the Greenwich DIP Facility,
substantially on the terms and conditions set forth in the draft of the
Extension Amendment attached hereto as Exhibit A.
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(c) The Lenders' consent and waiver of any Event of Default in
accordance with paragraph (a) above and the Agent's consent set forth in
paragraph (b) above (i) shall become effective as of the date set forth above
when signed by the Lenders, (ii) shall be effective only in this specific
instance and for the specific purposes set forth herein, and (iii) does not
allow for any other or further departure from the terms and conditions of the
Agreement or any other Loan Documents, which terms and conditions shall continue
in full force and effect.
7. Representations and Warranties. Each of the Borrower and
the Guarantor represents and warrants to the Lenders as follows:
(a) Each Loan Party (i) is duly organized, validly
existing and in good standing under the laws of the state of its organization
and (ii) has all requisite power, authority and legal right to execute, deliver
and perform this Amendment and to perform the Agreement, as amended hereby,
subject to the prior approval of the Bankruptcy Court.
(b) The execution, delivery and performance by the
Loan Parties of this Amendment and the performance by the Borrowers of the
Agreement as amended hereby (i) have been duly authorized by all necessary
action, subject to the prior approval of the Bankruptcy Court, (ii) do not and
will not violate or create a default under any Loan Party's organizational
documents, any applicable law or any contractual restriction binding on or
otherwise affecting any Loan Party or any of such Loan Party's properties,
subject to the prior approval of the Bankruptcy Court, and (iii) except as
provided in the Loan Documents, do not and will not result in or require the
creation of any Lien, upon or with respect to any Loan Party's property.
(c) No authorization or approval or other action by,
and no notice to or filing with, any Governmental Authority or other regulatory
body is required in connection with the due execution, delivery and performance
by any Loan Party of this Amendment and the performance by the Loan Parties of
the Agreement as amended hereby, subject to the prior approval of the Bankruptcy
Court.
(d) This Amendment and the Agreement, as amended
hereby, constitute the legal, valid and binding obligations of the Borrower and
the Guarantor party thereto, subject to the prior approval of the Bankruptcy
Court, enforceable against such Persons in accordance with their terms except to
the extent the enforceability thereof may be limited by any applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws from time to
time in effect affecting generally the enforcement of creditors' rights and
remedies and by general principles of equity.
(e) The representations and warranties contained in
Article VI of the Agreement are correct on and as of the Amendment Effective
Date as though made on and as of the Amendment Effective Date (except to the
extent such representations and warranties expressly relate to an earlier date),
and no Event of Default or Default, has occurred and is continuing on and as of
the Amendment Effective Date, except as otherwise disclosed to the Lenders in
accordance with Section 6(a) hereof.
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8. Continued Effectiveness of Agreement. Each of the Borrower
and the Guarantor hereby (i) confirms and agrees that each Loan Document to
which it is a party is, and shall continue to be, in full force and effect and
is hereby ratified and confirmed in all respects except that on and after the
Amendment Effective Date of this Amendment all references in any such Loan
Document to "the Agreement", "thereto", "thereof", "thereunder" or words of like
import referring to the Agreement shall mean the Agreement as amended by this
Amendment, and (ii) confirms and agrees that to the extent that any such Loan
Document purports to assign or pledge to the Agent, or to grant to the Agent a
Lien on any collateral as security for the Obligations of the Borrower from time
to time existing in respect of the Agreement and the Loan Documents, such
pledge, assignment and/or grant of a Lien is hereby ratified and confirmed in
all respects.
9. Miscellaneous.
(a) This Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which shall be deemed to be an original, but all of which taken together shall
constitute one and the same agreement.
(b) Section and paragraph headings herein are
included for convenience of reference only and shall not constitute a part of
this Amendment for any other purpose.
(c) This Amendment shall be governed by, and
construed in accordance with, the laws of the State of New York.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their respective officers thereunto duly authorized
as of the day and year first above written.
CITYSCAPE CORP.
By: /s/ Xxxxxx X. Xxxx
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Name: Xxxxxx X. Xxxx
Title: Executive Vice President
CITYSCAPE FINANCIAL CORP.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: President
AGENT AND LENDER
THE CIT GROUP/EQUIPMENT FINANCING, INC.
By: /s/ Xxx Xxxxxxxxx
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Name: Xxx Xxxxxxxxx
Title: VP
LENDER
NOMURA ASSET CAPITAL CORPORATION
By: /s/ Xxx Xxxxxxxx
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Name: Xxx Xxxxxxxx
Title: Managing Director
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