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Exhibit 10.40
AMENDMENT NO. 1
This AMENDMENT NO. 1 (this "Amendment") to the Credit
Agreement (as defined below) is entered into as of January 13, 1997 by and among
Cityscape Corp. (the "Company"), Cityscape Financial Corp. (the "Guarantor"),
the Lenders (as defined below) party hereto and CIBC Wood Gundy Securities
Corp., as agent for the Lenders (the "Agent").
WHEREAS, the Company, the Guarantor, certain lenders (the
"Lenders") and the Agent are party to the Senior Secured Credit Agreement dated
as of October 30, 1996 (the "Credit Agreement"; capitalized terms used but not
defined herein shall have their respective meanings specified in the Credit
Agreement);
WHEREAS, the Company, the Guarantor, the Lenders and the Agent
desire to increase the Senior Loan Commitment by an additional $50,000,000 to
provide for a Senior Loan Commitment not to exceed $150,000,000;
WHEREAS, the Guarantor filed a Form 10-Q/A with the Commission
on November 19, 1996 restating the consolidated financial statements of the
Guarantor as at June 30, 1996 for the Guarantor and its subsidiaries (the
"Restatement");
WHEREAS, the Restatement was filed to remedy the consolidated
financial statements of the Guarantor previously filed with the Commission (the
"Cause for Restatement");
WHEREAS, the Guarantor filed a Form 10-Q with the Commission
on November 14, 1996 relating to the consolidated financial statements of the
Guarantor as of September 30, 1996; and
WHEREAS, the Company and the Guarantor have requested that the
Lenders and the Agent agree, and the Guarantor, the Lenders party hereto and the
Agent are willing, to amend the Credit Agreement, on the terms and conditions of
this Amendment.
NOW, THEREFORE, in consideration of the premises and the
mutual agreements contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
SECTION 1. Amendment to the Credit Agreement. Subject to the
satisfaction of the conditions to
(a) Section 1.1 shall be amended as follows:
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(i) the definition of "Collateral Coverage Ratio"
shall be amended by deleting the reference to $100,000,000
contained therein and substituting "$150,000,000" therefor;
(ii) the definition of "Permitted Encumbrance" shall
be amended by deleting from clause (xx) thereof (x) the words
"or residual certificate" immediately after the words
"interest-only" and substituting the words "and residual
certificates" therefor and (y) the word "applies" immediately
after the words "such Yield Maintenance Agreement" and
substituting the word "relates" therefor; and
(iii) the definition of "U.S. Greenwich Facility"
shall be amended by deleting the words "as in effect on the
date hereof" and substituting the words "as the same may be
amended from time to time with the Agent's consent."
(b) Section 2.1(A) of the Credit Agreement shall be amended by
(i) deleting the reference to $60,000,000 in clause
(ii) thereof and substituting "$110,000,000" therefor;
(ii) deleting the reference to $100,000,000 in the
second proviso of clause (ii) thereof and substituting
"$150,000,000" therefor;
(iii) deleting the parenthetical in clause (ii)
thereof immediately following the reference to "$60,000,000";
and
(iv) deleting the parenthetical in the second proviso
thereof.
(c) Section 4.6(b) of the Credit Agreement shall be amended by
(i) deleting each reference to the date "June 30,
1996" therein and substituting "September 30, 1996" therefor;
(ii) deleting the words "as amended by the Company's
quarterly report on Form 10-Q/A filed with the Commission on
September 27, 1996" therein; and
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(iii) deleting the word "Company and "Company's" in
each instance where used in Section 4.6(b) and substituting
"Guarantor" or "Guarantor's", respectively, therefor.
(d) The reference to the "Commitment" opposite each Lender's
name on the signature pages to the Credit Agreement shall be amended
such that the number set forth on the signature pages hereto opposite
such Lender's name shall be added to the "Commitment" set forth on such
signature page.
SECTION 2. Waiver. Subject to the satisfaction of the
conditions to effectiveness specified in Section 4 hereof, the Lenders hereby
waive any Event of Default or Potential Event of Default that may be in
existence on, or may have existed prior to, the date hereof caused solely by the
Cause for Restatement.
By executing this Amendment, the Agent and the Lenders shall
not have deemed to have waived or amended any other agreements, covenants or
conditions contained in the Credit Agreement, including, without limitation, the
conditions to the obligations of the Lenders to fund additional amounts
contained in Section 3 of the Credit Agreement.
SECTION 3. Consent. Subject to the satisfaction of the
conditions to effectiveness specified in Section 4 hereof, the Lenders hereby
consent and agree that the Cause of Restatement did not cause an Event of
Default or Potential Event of Default arising out of Section 4.6(b) of the
Credit Agreement, including, without limitation, with respect to Sections 4.7,
4.8, 5.1, 7.4 and 7.5 of the Credit Agreement.
SECTION 4. Effectiveness. This Amendment shall become
effective on the date (the "Amendment Effective Date") that the Agent shall have
received (a) an executed copy of this Amendment from each Lender, the Agent, the
Company and the Guarantor, (b) the written consents to this Amendment, in form
and content satisfactory to the Agent, as may be required under the CoreStates
Facility, the U.S. Greenwich Facility, the U.K. Greenwich Facility and the
Standby Financing and Investment Banking Services Agreement dated as of June 24,
1994 between the Company and ContiTrade Services L.L.C. and (c) the prior or
concurrent satisfaction of the conditions contained in Section 3 of the Credit
Agreement required to be satisfied prior to or concurrently with the Closing
Date.
SECTION 5. Representation and Warranties. Each of the Company
and the Guarantor, jointly and severally, represent and warrant that the
representations and warranties contained in Section 4 of the Credit Agreement,
as modified by this Amendment,
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are true and correct in all material respects on the date of this Amendment with
the same force and effect as if made on the date hereof (unless stated to
related to a specific earlier date, in which case, such representations and
warranties are true and correct in all material respects as of such earlier
date). Upon such effectiveness, the Agent shall promptly notify the Company and
each of the Lenders of such effectiveness.
SECTION 6. Counterparts. This Amendment may be executed in any
number of counterparts, each of which shall be identical and all of which, when
taken together, shall constitute one and the same instrument, and any of the
parties hereto may execute this Amendment by signing any such counterpart.
SECTION 7. Binding Effect. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
SECTION 8. Governing Law. 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 duly executed as of the day and year first above written.
BORROWER:
CITYSCAPE CORP.
By: /s/ Xxxxxx X. Patent
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Name: Xxxxxx X. Patent
Title: Executive Vice President
GUARANTOR:
CITYSCAPE FINANCIAL CORP.
By: /s/ Xxxxxx X. Patent
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Name: Xxxxxx X. Patent
Title: Executive Vice President
AGENT:
CIBC WOOD GUNDY SECURITIES CORP.
By: /s/ Xxxxxxx X. Phoenix
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Name: Xxxxxxx X. Phoenix
Title: Managing Director
LENDERS:
CIBC WOOD GUNDY SECURITIES CORP.
Additional By: /s/ Xxxxxxx X. Phoenix
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Commitment: $12,500.00 Name: Xxxxxxx X. Phoenix
Title [Illegible]
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XXXXXXXXX, LLC
Additional By:/s/ [Signature Illegible]
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Commitment: $7,500,000 Name: [Illegible]
Title:[Illegible]
HIGH YIELD PORTFOLIO
Additional By: /s/ Xxxxxx X. Xxx
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Commitment: $2,000,000 Name: Xxxxxx X. Xxx
Title:Vice President and
General Counsel
IDS BOND FUND, INC.
Additional By:/s/ Xxxxxx X. Xxx
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Commitment: $5,000,000 Name: Xxxxxx X. Xxx
Title:Vice President and
General Counsel
TOTAL RETURN PORTFOLIO
Additional By:/s/ Xxxxxx X. Xxx
-----------------------------------
Commitment: $500,000 Name: Xxxxxx X. Xxx
Title:Vice President and
General Counsel
IDS LIFE SPECIAL INCOME FUND
Additional By:/s/ Xxxxxx X. Xxx
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Commitment: $5,000,000 Name: Xxxxxx X. Xxx
Title:Vice President and
General Counsel
IDS LIFE INCOME ADVANTAGE FUND
Additional By:/s/ Xxxxxx X. Xxx
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Commitment: $7,500,000 Name: Xxxxxx X. Xxx
Title:Vice President and
General Counsel
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CONTINENTAL CASUALTY COMPANY
Additional By:/s/ Xxxxxxx X. [Illegible]
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Commitment: $10,000,000 Name: Xxxxxxx X. [Illegible]
Title:Vice President
