EXHIBIT 10.5
879372.01
AMENDMENT NO. 1 TO SECOND AMENDED AND
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RESTATED LOAN AGREEMENT AND LIMITED WAIVER
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AMENDMENT NO. 1 TO SECOND AMENDED AND RESTATED LOAN AGREEMENT AND LIMITED
WAIVER dated as of March 30, 2001 (this "Amendment"), by and among MEDALLION
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FINANCIAL CORP., a Delaware corporation ("MFC"), MEDALLION BUSINESS CREDIT, LLC,
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a Delaware limited liability company ("MBC"; MBC and MFC are sometimes
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hereinafter referred to individually as a "Borrower" and together as the
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"Borrowers"), the lending institutions that are listed on the signature pages
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hereto, FLEET NATIONAL BANK (f/k/a Fleet Bank, National Association), as a Bank
("Fleet"), as Swing Line Lender (the "Swing Line Lender"), as Arranger and as
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Agent for the Banks (including any successor, the "Agent"), amending the Loan
Agreement (as defined below).
WHEREAS, the Borrowers, the banks and other lending institutions that from
time to time are signatories thereto (including Assignees, collectively, the
"Banks" and individually, a "Bank"), the Agent and the Swing Line Lender are
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parties to a Second Amended and Restated Loan Agreement dated as of September
22, 2000 (as amended and in effect from time to time, the "Loan Agreement",
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capitalized terms defined therein having the same meanings herein as therein),
pursuant to which the Banks have extended credit to the Borrowers on the terms
and subject to the conditions set forth therein; and
WHEREAS, the Borrowers have requested an amendment of, and, subject to the
terms and conditions set forth herein, the Borrowers, the Banks, the Agent and
the Swing Line Lender have agreed to amend, the Loan Agreement as set forth
herein;
NOW, THEREFORE, in consideration of the foregoing, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree to amend the Loan Agreement as follows:
1. Amendments to Definitions. Section 1.1 of the Loan Agreement is hereby
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amended by:
(a) deleting the following definitions in their entirety and substituting
in lieu thereof the following new definitions:
"Applicable LIBOR Margin" means 1.50% in the case of all LIBOR Rate
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Loans that are also Revolving Credit Loans, and 1.50% in the case of any
LIBOR Rate Loan that is a Term Loan.
"Loan Documents" shall mean and include this Agreement, the Revolving
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Credit Notes, the Term Notes, the Swing Line Notes, the Security Agreement,
any Mortgage Assignment, the Borrower Financing Statements, the Borrowing
Base Certificates, the Fee Letter, the Guaranty, and the Collateral Agency
Agreement and each other document, instrument or agreement executed
pursuant to, or in connection with, any Loan Document.
"MFC Borrowing Base" shall mean, as determined pursuant to the most
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recently required Borrowing Base Certificate:
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(i) cash and Short Term Investments shown on MFC's balance sheet as
of such date, plus
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(ii) 83.3% of the aggregate outstanding principal balances of, plus
accrued interest on, all of MFC's Eligible Medallion Loans from time to
time outstanding that are Retained Loans, plus
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(iii) 75% of the aggregate outstanding principal balances of, plus
accrued interest on, all of MFC's Eligible Commercial Loans other than
Section 7a Loans from time to time outstanding that are Retained Loans;
plus
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(iv) 75% of the aggregate outstanding principal balances of, plus
accrued interest on, all of MFC's Eligible Section 7a Loans purchased from
Business Lenders, LLC from time to time outstanding that are Retained
Loans; plus
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(v) 83.3% of the Eligible Yellow Cab Loan;
provided, that, if all or any part of any Loan would be excluded as an
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Eligible Commercial Loan, Eligible Medallion Loan, Eligible Yellow Cab Loan
or Eligible Section 7a Loan under any of the provisions of this Agreement,
then the entire outstanding principal amount of, plus accrued interest on,
such Loan shall be excluded.
(b) inserting, in the places required by alphabetical order, the following
new definitions:
"Amendment No. 1" shall mean Amendment No. 1 to Second Amended and
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Restated Loan Agreement and Limited Waiver dated as of March 30, 2001 among
the Borrower, the Agent, the Swing Line Lender and the Banks.
"Amendment No. 1 Effective Date" shall mean the "Effective Date", as
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defined in Amendment No. 1.
"Collateral Agency Agreement" shall mean the Collateral Agency
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Agreement, by and among the collateral agent named therein, the Agent, the
Banks, the Senior Note Holders and the administrative agent and the banks
party to the Funding Agreement.
"Eligible Yellow Cab Loan" shall mean, with respect to the Yellow Cab
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Loan, the portion of the outstanding principal balance of, plus accrued
interest (excluding deferred interest) on the Yellow Cab Loan owed to MFC
and attributable to the portion of the Yellow Cab Loan made by MFC;
provided, that, the Yellow Cab Loan shall not be an Eligible Yellow Cab
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Loan (i) if MFC, in its reasonable business judgment, deems such Eligible
Yellow Cab Loan to be uncollectible or subject to classification as non-
accruing and for which it has not made appropriate credits to its reserves
or (ii) if the outstanding principal amount of the Yellow Cab Loan or
interest thereon is more than 60 days past due.
"Funding Agreement" shall mean the Amended and Restated Loan Agreement
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dated as of December 24, 1997, by and among Medallion Funding, the lenders
party thereto, Fleet National Bank, as swing line lender, administrative
agent, arranger and collateral agent and The Bank of New York, as
documentation agent, as amended and in effect from time to time.
"Guarantor" shall mean Medallion Taxi Media, Inc., a New York
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corporation.
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"Guaranty" shall mean the Guaranty from the Guarantor in favor of the
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Agent and the Banks, guaranteeing the payment and performance of the
obligations owing by the Borrowers to the Agent and the Banks pursuant to
the Loan Documents.
"Yellow Cab Loan" shall mean the Medallion Loan made to Yellow Cab
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Management, Inc., secured by Medallion Rights in respect of Chicago
Medallions, that (a) satisfies the Eligibility Requirements (other than,
with respect to the requirement set forth in subsection (f) thereof, by
virtue of the subordination provisions of the Yellow Cab Loan), provided
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that, with respect to the requirement set forth in subsection (g) thereof,
the endorsement on any promissory note evidencing the Yellow Cab Loan
explicitly state that any pledge thereof is subject to the requirements of
any relevant participation agreement, (b) does not exceed, with respect to
the portion thereof owed to MFC and attributable to the portion of the
Yellow Cab Loan made by MFC, an aggregate principal amount of $1,190,000,
and (c) matures no later than March 1, 2003.
2. Addition of Article 2A to the Loan Agreement. The Loan Agreement is
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hereby amended by adding the following new Article 2A:
"ARTICLE 2A. COLLATERAL SECURITY; GUARANTY.
The obligations of the Borrowers under this Agreement shall be
secured by a perfected first priority security interest (subject only
to Liens permitted hereunder and entitled to priority under applicable
law (including Liens in favor of the "Agent" (as defined in the
Funding Agreement) under the Funding Agreement to secure the
obligations thereunder) and to the Collateral Agency Agreement) in
substantially all of the assets of each Borrower, whether now owned or
hereafter acquired and wherever located, pursuant to the terms of the
Security Agreement, including a pledge by each of the Borrowers of one
hundred percent (100%) of the capital stock owned by such Borrower of
each of its Subsidiaries, subject to limitations imposed by applicable
law with respect to any particular Subsidiary, and to the receipt of
consents (including lender consents) as may be required under other
loan documents for any particular Subsidiary, provided that the
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Borrowers shall have used their best efforts to obtain such consents,
with the Borrowers acknowledging that the stock of the Guarantor
requires no such consent. Following the Borrowers' compliance with
the requirements of Section 15 of Amendment No. 1, the obligations of
the Borrowers under this Agreement and the other Loan Documents shall
also be guaranteed by the Guarantor pursuant to the terms of the
Guaranty (subject to the terms of the Collateral Agency Agreement);
provided, however, that the Guaranty shall provide that, with the
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prior written consent of the Agent and the Required Banks, which
consent shall not be conditioned on any requirement to repay
Indebtedness, such Guaranty shall be released upon any sale, transfer,
public offering, merger, consolidation or other similar event
involving the change of at least 33% of the legal and beneficial
ownership of the Guarantor.
3. Amendment of Section 4.22 of the Loan Agreement. Section 4.22 of the
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Loan Agreement is hereby amended deleted in its entirety and the following new
Section 4.22 is hereby substituted in lieu thereof:
"Section 4.22. Priority; Continued Effectiveness.
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Except as otherwise permitted hereunder, the Agent, for the ratable
benefit of the Banks and the Swing Line Lender, has or will have, following
the Borrowers' compliance with the requirements of Section 15 of Amendment
No. 1, a valid and perfected first priority security interest (subject to
the terms of the Collateral Agency Agreement) in and to all Collateral,
enforceable against each Borrower and all third parties in all relevant
jurisdictions and securing the payment of the Revolving Credit Loans, Swing
Line Loans and Term Loans and all other sums payable under or in connection
with the Loan Documents. The Security Agreement is effective to create in
favor of the Agent, for the ratable benefit of the Banks, the Swing Line
Lender and the CP Holders, a valid and perfected first priority (subject to
the terms of the Collateral Agency Agreement and except as otherwise
permitted hereunder) security interest in and to the Collateral described
therein securing the payment of the Revolving Credit Loans, Swing Line
Loans and Term Loans and all other sums payable under or in connection with
the Loan Documents, whether incurred prior to or after the Amendment No. 1
Effective Date. No additional Borrower Financing Statements are required
to be filed in order to maintain the perfection and priority of the
security interests created pursuant to the Security Agreement.
4. Amendment of Article 6 of the Loan Agreement. Article 6 of the Loan
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Agreement is hereby amended by adding in proper numerical order therein the
following new Sections 6.20, 6.21 and 6.22:
"Section 6.20. M.R. Weiser, etc. The Borrowers agree to retain M.R.
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Weiser, Inc. to assist in the preparation of each Borrowing Base
Certificate and to provide reporting requested by the Agent with respect
thereto and the Borrowers shall assist and fully cooperate with M.R.
Weiser, Inc. to provide all necessary or appropriate information promptly
following any request therefor.
Section 6.21. CFO. Each of the Borrowers shall retain a full-time
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chief financial officer, or an interim chief financial officer (or a firm
performing such function), by May 1, 2001.
Section 6.22. Effectiveness of Loan Documents. The Borrowers shall
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ensure that each of the Loan Documents, including, once executed and
delivered, the Guaranty, shall be in full force and effect, and not
cancelled, terminated, revoked or rescinded, in each case otherwise than in
accordance with the terms thereof or Section 4.5 hereof, or with the
express prior written agreement, consent or approval of the Banks, and
shall further ensure that no Borrower or any of its Subsidiaries or
respective stockholders shall commence any action at law or in equity or
other legal proceeding to cancel, revoke or rescind any of the Loan
Documents."
5. Amendment of Section 8.3 of the Loan Agreement. Subsections 8.3(c),
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(e) and (g) of the Loan Agreement are hereby deleted in their entirety and the
following new subsections 8.3(c), (e) and (g), respectively, are hereby
substituted in lieu thereof:
"(c) Make, or obligate itself to make, any Loan if, after giving
effect to such Loan (i) with respect to MFC, the aggregate outstanding
principal amount of all Loans made to any one Person together with its
Affiliates would exceed 20% of Unconsolidated Tangible Net Worth of MFC,
and (ii) with respect to MBC, the aggregate outstanding principal amount of
all Loans made to any one Person together with its Affiliates would exceed
$3,500,000.
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(e) Make any Investment (including by way of the acquisition of any
Person) in any Subsidiary or Affiliate, or any Person that after taking
into account such Investment would become a Subsidiary or Affiliate, other
than (i) Investments of MFC in MBC or of MBC in MFC, (ii) Investments
existing on the Second Restatement Effective Date and listed on Schedule
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III hereto, (iii) Investments by MFC in BL of up to $10,000,000 arising
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from the conversion of accounts receivable owed by BL to MFC into an equity
contribution into BL, and (iv) Investments by MFC in Freshstart Venture
Capital Corp. and Medallion Capital, Inc., which shall not exceed an
aggregate amount of $5,000,000 for either such Investment (an aggregate
amount of $10,000,000 for both such Investments).
(g) Sell, discount or otherwise dispose of Loans or any Collateral;
sell, discount or otherwise dispose of other Receivables or obligations
owing to a Borrower or any of its Subsidiaries, with or without recourse,
otherwise than (i) in connection with the grant of any participation in
accordance with and to the extent permitted by Section 2.14 hereof, (ii)
for collection in the ordinary course of business, (iii) to the Agent for
the benefit of the Banks and, with respect to the pledged shares of the
Guarantor and for so long as the Collateral Agency Agreement is in effect,
the Collateral Agent, for the benefit of the Banks, the Senior Noteholders
and the CP Holders, or (iv) Loans disposed of to Affiliates for cash for a
price at least equal to the outstanding principal amount thereof (without
discount thereon). "
6. Amendment of Section 8.16 of the Loan Agreement. Section 8.16 of the
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Loan Agreement is hereby deleted in its entirety and the following new Section
8.16 is hereby substituted in lieu thereof:
"8.16. Portfolio Purchase. Make, or obligate itself to make, any
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Portfolio Purchase."
7. Amendment of Article 8 of the Loan Agreement. Article 8 of the Loan
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Agreement is hereby amended by adding in proper numerical order therein the
following new Section 8.17:
"8.17. Amendment of Agreements. The Borrowers will not amend, waive
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or otherwise modify any provision of the Note Purchase Agreement, without
the prior written consent of the Agent and the Required Banks except to the
extent that any such amendment, waiver or other modification shall not have
a material adverse effect on the interests of the Banks and the Agent."
8. Amendment to Schedules to the Loan Agreement. The Schedules to the
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Loan Agreement are hereby amended by deleting Schedule III in its entirety and
substituting in lieu thereof Schedule III attached hereto.
9. Waiver of Section 7.4 of the Loan Agreement. Each of the Required
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Banks hereby waives the Borrowers' compliance with the covenant set forth in
(S)7.4 of the Loan Agreement for the fiscal quarter ended December 31, 2000;
provided, however, that (a) the ratio of (i) the sum of Consolidated EBIT of MFC
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for such fiscal quarter plus Consolidated Interest Expense of MFC for such
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fiscal quarter to (ii) Consolidated Interest Expense of MFC for such fiscal
quarter shall not be less than 1.49:1, and (b) the ratio of (i) the sum of
Unconsolidated EBIT of MFC for such fiscal quarter plus Unconsolidated Interest
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Expense of MFC for such fiscal quarter plus Unconsolidated EBIT of MBC for such
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fiscal quarter plus Unconsolidated Interest Expense of MBC for such fiscal
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quarter to (ii) the sum of Unconsolidated Interest Expense of MFC for such
fiscal quarter plus Unconsolidated Interest Expense of MBC for such fiscal
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quarter shall not be less than 1.07:1.
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10. Waiver of Section 8.3(c) of the Loan Agreement. Each of the Required
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Banks hereby waives MBC's compliance with the covenant set forth in (S)8.3(c) of
the Loan Agreement for the fiscal quarter ended December 31, 2000; provided,
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however, that MBC shall not have made, or obligated itself to make, any Loan if,
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after giving effect to such Loan the aggregate outstanding principal amount of
all Loans made to any one Person together with its Affiliates exceeded
$3,500,000.
11. Waiver of Section 9.1(e) of the Funding Agreement. The Funding
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Agreement requires Medallion Funding to ensure that the ratio of Net Finance
Assets (as defined in the Funding Agreement) to the sum of Senior Debt and SBA
Debt (each as defined in the Funding Agreement) is not less than 1.20:1 at all
times and to pay down any amount by which Minimum Asset Coverage (as defined in
the Funding Agreement) exceeds Net Finance Assets (as defined in the Funding
Agreement). Medallion Funding has reported that from January 1, 2000 through
the date hereof, it has not complied, and may not comply from the Effective Date
until June 30, 2001, with such requirements as a result of the 2000 Forbearance
Events and the 2001 Forbearance Events (each as defined in Amendment No. 4 (as
defined in the Funding Agreement)) but has instead, for the period from and
after January 1, 2001 through the date hereof, complied with, and for the period
from and after the date hereof until June 30, 2001, agreed that it will comply
with, the covenant set forth in Section 1 of Amendment No. 4 (as defined in the
Funding Agreement). Each of the Agent and the Banks hereby waives (without
changing the provisions of Section 9.1 of the Loan Agreement or the definition
of Event of Default therein) any Default or Event of Default which may have
occurred or may occur under Section 9.1(e) or (f) of the Loan Agreement (to the
extent that Section 9.1(f) may be deemed to apply to the Funding Agreement) as a
result of the occurrence of the 2000 Forbearance Events or the 2001 Forbearance
Events (each as defined in Amendment No. 4 (as defined in the Funding
Agreement)), for so long as and to the extent that the Banks under the Funding
Agreement are required to forbear from the exercise of certain of their rights
and remedies under and pursuant to Section 1 of Amendment No. 4 (as defined in
the Funding Agreement).
12. Consent to Note Purchase Agreement Amendment. Each of the Required
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Banks hereby consents to the amendment of the Note Purchase Agreement in form
and substance satisfactory to the Agent for purposes of Section 8.10 of the Loan
Agreement.
13. Representations and Warranties. Each of the Borrowers hereby
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represents and warrants to the Agent and the Banks as of the date hereof, and as
of any date on which the conditions set forth in Section 14 below are met, as
follows:
(a) The execution and delivery by each of the Borrowers of this
Amendment and all other instruments and agreements required to be executed
and delivered by each of the Borrowers in connection with the transactions
contemplated hereby or referred to herein (collectively, the "Amendment
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Documents"), and the performance by each of the Borrowers of any of its
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obligations and agreements under the Amendment Documents and the Loan
Agreement and the other Loan Documents, as amended hereby, are within the
corporate or other authority of each of the Borrowers, as the case may be,
have been authorized by all necessary corporate proceedings on behalf of
each of the Borrowers, as the case may be, and do not and will not
contravene any provision of law or of the Borrowers' charter, other
incorporation or organizational papers, by-laws or any stock provision or
any amendment thereof or of any indenture, agreement, instrument or
undertaking binding upon the Borrowers.
(b) Each of the Amendment Documents and the Loan Agreement and other
Loan Documents, as amended hereby, to which any of the Borrowers is a party
constitutes a legal, valid and binding obligation of such Person,
enforceable in accordance with its terms, except as limited
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by bankruptcy, insolvency, reorganization, moratorium or similar laws
relating to or affecting generally the enforcement of creditors' rights.
(c) No approval or consent of, or filing with, any governmental
agency or authority is required to make valid and legally binding the
execution, delivery or performance by each of the Borrowers of the
Amendment Documents or the Loan Agreement or other Loan Documents, as
amended hereby, or the consummation by each of the Borrowers of the
transactions among the parties contemplated hereby and thereby or referred
to herein.
(d) The representations and warranties contained in Article 4 of the
Loan Agreement and in the other Loan Documents were true and correct at and
as of the date made. Except to the extent of changes resulting from
transactions contemplated or permitted by the Loan Agreement and the other
Loan Documents, changes occurring in the ordinary course of business (which
changes, either singly or in the aggregate, have not been materially
adverse) and to the extent that such representations and warranties relate
expressly to an earlier date and after giving effect to the provisions
hereof, such representations and warranties, after giving effect to this
Amendment, also are correct at and as of the date hereof.
(e) Each of the Borrowers has performed and complied in all material
respects with all terms and conditions herein required to be performed or
complied with by it prior to or at the time hereof, and as of the date
hereof, after giving effect to the provisions of this Amendment and the
other Amendment Documents, there exists no Event of Default or Default.
(f) Each of the Borrowers acknowledges and agrees that the
representations and warranties contained in this Amendment shall constitute
representations and warranties referred to in Section 4 of the Loan
Agreement, a breach of which shall constitute an Event of Default.
14. Effectiveness. This Amendment shall become effective as of the date
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first written above (the "Effective Date") upon the satisfaction of each of the
following conditions, in each case in a manner satisfactory in form and
substance to the Agent; provided that upon such satisfaction of each of the
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following conditions, (i) the revision to "Applicable LIBOR Margin" in Section
1(a) hereof shall become effective as of February 1, 2001, and (ii) the
revisions to "MFC Borrowing Base" and additions of "Eligible Yellow Cab Loan"
and "Yellow Cab Loan" in Sections 1(a) and (b) hereof shall become effective as
of the date the Yellow Cab Loan was first included in the MFC Borrowing Base:
(a) This Amendment shall have been duly executed and delivered by each of
the Borrowers and the Required Banks and shall be in full force and effect.
(b) The Agent shall have received evidence of the effectiveness of an
amendment of the Funding Agreement, in the form attached hereto as Exhibit A.
(c) The Agent shall have received, for the pro rata account of each Bank
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which executes and delivers its signature pages to the Agent, by 5:00 p.m.
Boston time on March 30, 2001 in facsimile (to be followed by originals) or
original form, an amendment fee equal in the aggregate to 0.05% of each such
Bank's Revolving Credit Commitment.
(d) Such other items, including legal fees of counsel to the Agent,
documents, agreements or actions as the Agent may reasonably request in order to
effectuate the transactions contemplated hereby.
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15. Post-Closing Matters. Each of the Borrowers agrees to take the
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following actions and deliver the following items to the Agent no later than
April 30, 2001:
(a) The Borrowers shall deliver to the Agent, from each of the parties
thereto, duly executed originals of each of the Guaranty, the Collateral Agency
Agreement and, if and to the extent deemed necessary or appropriate by the
Agent, an amendment to the Intercreditor Agreement (the "New Security
Documents"), each in form and substance satisfactory to the Agent;
(b) The Borrowers shall deliver to the Agent, from the Secretary of the
Guarantor a copy, certified by such Secretary to be true and complete as of such
date, of (i) its charter or other organizational documents as in effect on such
date of certification, (ii) its by-laws as in effect on such date, and (iii) the
resolutions of its Board of Directors or other management authorizing, to the
extent it is a party thereto, the execution, delivery and performance of the New
Security Documents; provided, however, that in lieu of providing the items
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required by subsections (i) and (ii) of this subsection (b), such Secretary may
certify, to the extent true and correct, that charter documents and by-laws
previously provided to the Agent are true and correct as of such date and have
not been amended, rescinded or revoked;
(c) The Borrowers shall deliver to the Agent, from the Guarantor, an
incumbency certificate, dated as of such date, signed by a duly authorized
officer of such Person and giving the name and bearing a specimen signature of
each individual who shall be authorized to sign, in the name and on behalf of
such Person, the New Security Documents;
(d) The Borrowers shall deliver to the Agent, from the Guarantor, good
standing certificates for such Person, issued by the Secretary of State of such
entity's jurisdiction of incorporation or organization, and evidence that such
Person is duly licensed and qualified as a foreign organization in good standing
under the laws of each jurisdiction where the failure to qualify as such would
have a Material Adverse Effect;
(e) The Borrowers shall deliver to the Agent a favorable legal opinion
addressed to the Agent and the Banks, dated as of such date, in form and
substance satisfactory to the Agent, from counsel to the Guarantor, with respect
to such Person concerning corporate or other applicable entity authority matters
and the enforceability of each of the Guaranty and the Collateral Agency
Agreement and concerning such other matters as the Administrative Agent may
request;
(f) The Borrowers shall deliver to the Agent, from each of the parties
thereto, duly executed originals of each of the Guaranty and the Collateral
Agency Agreement, each in form and substance satisfactory to the Agent;
(g) The Agent shall have received the results of such UCC filing searches
for the Guarantor as the Agent shall have requested.
(h) The Collateral Agent shall possess all stock certificates or other
certificates evidencing MFC's equity interests in the Guarantor, together wish
undated stock powers or other instruments of endorsement duly executed in blank.
(i) Such other items, documents, agreements, items or actions as the Agent
may reasonably request in order to effectuate the transactions contemplated
hereby.
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Each of the Borrowers acknowledges and agrees that the failure to deliver any of
the above-referenced items, or take the above-referenced actions, by April 30,
2001, shall constitute an Event of Default under Section 9.1(b) of the Loan
Agreement.
16. Release. In order to induce the Agent and the Banks to enter into
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this Amendment, each of the Borrowers, on behalf of itself and its Subsidiaries,
acknowledges and agrees that: (a) such Person does not have any claim or cause
of action against the Agent or any Bank (or any of its respective directors,
officers, employees or agents); (b) such Person does not have any offset right,
counterclaim or defense of any kind against any of its respective obligations,
indebtedness or liabilities to the Agent or any Bank; and (c) each of the Agent
and the Banks has heretofore properly performed and satisfied in a timely manner
all of its obligations to such Person. Each of the Borrowers, on behalf of
itself and its Subsidiaries, wishes to eliminate any possibility that any past
conditions, acts, omissions, events, circumstances or matters would impair or
otherwise adversely affect any of the Agent's and the Banks' rights, interests,
contracts, collateral security or remedies. Therefore, each of the Borrowers,
on behalf of itself and its Subsidiaries, unconditionally releases, waives and
forever discharges (x) any and all liabilities, obligations, duties, promises or
indebtedness of any kind of the Agent or any Bank to such Person, except the
obligations to be performed by the Agent or any Bank on or after the date hereof
as expressly stated in this Amendment, the Loan Agreement and the other Loan
Documents, and (y) all claims, offsets, causes of action, suits or defenses of
any kind whatsoever (if any), whether arising at law or in equity, whether known
or unknown, which such Person might otherwise have against the Agent, any Bank
or any of its directors, officers, employees or agents, in either case (x) or
(y), on account of any past or presently existing condition, act, omission,
event, contract, liability, obligation, indebtedness, claim, cause of action,
defense, circumstance or matter of any kind.
17. Miscellaneous Provisions.
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(a) Each of the Borrowers hereby ratifies and confirms all of its
obligations to the Agent and the Banks under the Loan Agreement, as amended
hereby, and the other Loan Documents, including, without limitation, the Loans,
and each of the Borrowers hereby affirms its absolute and unconditional promise
to pay to the Banks and the Agent the Revolving Credit Loans, the Term Loans,
the Swing Line Loans, reimbursement obligations and all other amounts due or to
become due and payable to the Banks and the Agent under the Loan Agreement and
the other Loan Documents, as amended hereby. Except as expressly amended
hereby, each of the Loan Agreement and the other Loan Documents shall continue
in full force and effect. This Amendment and the Loan Agreement shall hereafter
be read and construed together as a single document, and all references in the
Loan Agreement, any other Loan Document or any agreement or instrument related
to the Loan Agreement shall hereafter refer to the Loan Agreement as amended by
this Amendment.
(b) No consent or waiver herein granted shall extend to or affect any
obligations not expressly herein consented to or waived or shall impair any
right of the Agent or the Banks consequent thereon. No consent or waiver herein
granted shall extend beyond the term expressly set forth herein for such consent
or waiver, nor shall anything contained herein be deemed to imply any
willingness of the Agent or the Banks to agree to, or otherwise prejudice any
rights of the Agent and the Banks with respect to, any similar consents or
waivers that may be requested for any future period.
(c) Without limiting the expense reimbursement requirements set forth in
Section 10.6 of the Loan Agreement, each of the Borrowers agrees to pay on
demand all costs and expenses, including reasonable attorneys' fees, of the
Agent incurred in connection with this Amendment.
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(d) THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK (WITHOUT REFERENCE TO CONFLICT OF LAWS).
(e) This Amendment may be executed in any number of counterparts, and all
such counterparts shall together constitute but one instrument. In making proof
of this Amendment it shall not be necessary to produce or account for more than
one counterpart signed by each party hereto by and against which enforcement
hereof is sought.
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IN WITNESS WHEREOF, intending to be legally bound, each of the undersigned
has caused this Amendment to be executed on its behalf by its officer thereunto
duly authorized, as of the date first above written.
MEDALLION FINANCIAL CORP.
By: /s/ Alvin Murstein
--------------------
Name: Alvin Murstein
Title: Chief Executive Officer
By: /s/ Larry D. Hall
-------------------
Name: Larry D. Hall
Title: Corporate Controller
MEDALLION BUSINESS CREDIT, LLC
By: /s/ Alvin Murstein
--------------------
Name: Alvin Murstein
Title: Chief Executive Officer
By: /s/ Larry D. Hall
-------------------
Name: Larry D. Hall
Title: Corporate Controller
FLEET NATIONAL BANK (f/k/a Fleet Bank, National
Association), as Agent, as Swing Line Lender and
as one of the Banks
By: /s/ Kevin J. Foley
-------------------
Name: Kevin J. Foley
Title: Sr. VP
-12-
HSBC BANK USA
By: /s/ Bruce Wicks
----------------
Name: Bruce Wicks
Title: Vice President
CITIZENS BANK
By: /s/ Thomas D. Opie
--------------------
Name: Thomas D. Opie
Title: VP
THE BANK OF NEW YORK
By: /s/ Gordon Smith
------------------
Name: Gordon Smith
Title: Vice President
THE CHASE MANHATTAN BANK
By: /s/ Carol A. Kornbluth
-----------------------
Name: Carol A. Kornbluth
Title: Vice President
ISRAEL DISCOUNT BANK OF NEW YORK
By: /s/ Robert J. Fainelli
-----------------------
Name: Robert J. Fainelli
Title: First Vice President
By: /s/ Tim McCurry
----------------
Name: Tim McCurry
Title: Assistant Manager
-13-
EUROPEAN AMERICAN BANK
By: /s/ George L. Stirling
-------------------------
Name: George L. Stirling
Title: VP
BANK LEUMI
By: /s/ John Koenigsberg /s/ Phyllis Rosenfeld
---------------------- ---------------------
Name: John Koenigsberg Phyllis Rosenfeld
Title: First VP Vice President
THE BANK OF TOKYO
By:____________________________________________
Name:
Title:
-14-
Schedule 3
----------
Medallion Financial Corp.
Investment in Subsidiaries
December 31, 2000
- --------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------
Investment in Subsidiaries
- --------------------------------------------------------------------------------------------------
Equity in Medallion Funding Corp. $ 50,541,390.96
- --------------------------------------------------------------------------------------------------
Equity in Medallion Capital Corp. 17,798,176.72
- --------------------------------------------------------------------------------------------------
Equity in Edwards Capital Corp. 15,439,943.09
- --------------------------------------------------------------------------------------------------
Equity in Transportation Capital Corp. 9,719,481.77
- --------------------------------------------------------------------------------------------------
Equity in Freshstart Venture Capital 6,944,861.23
- --------------------------------------------------------------------------------------------------
Equity in BLLC 6,398,947.64
- --------------------------------------------------------------------------------------------------
Equity in MBC 3,261,858.45
- --------------------------------------------------------------------------------------------------
Equity 2,000.00
- --------------------------------------------------------------------------------------------------
Total Investments in Subsidiaries $ 110,106,659.86
- --------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------
Investments in Unconsolidated Subsidiary
- --------------------------------------------------------------------------------------------------
Total Investments in Unconsolidated
Subsidiary $ 1,856,421.31
- --------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------
Intercompany Receivables
- --------------------------------------------------------------------------------------------------
Intercompany - MBC $ 37,263,991.05
- --------------------------------------------------------------------------------------------------
Loan Receivable - BLI 16,714,478.37
- --------------------------------------------------------------------------------------------------
Interest Receivable - BLI 6,541,171.95
- --------------------------------------------------------------------------------------------------
Interest Receivable - MBC 3,913,165.30
- --------------------------------------------------------------------------------------------------
Intercompany - Medallion Funding 2,583,139.08
- --------------------------------------------------------------------------------------------------
Intercompany - BLI 897,762.57
- --------------------------------------------------------------------------------------------------
Intercompany - Medallion Capital 358,633.97
- --------------------------------------------------------------------------------------------------
Intercompany - Freshstart 116,574.27
- --------------------------------------------------------------------------------------------------
Intercompany - TCC (6,626,033.94)
- --------------------------------------------------------------------------------------------------
Intercompany - Edwards (8,358,159.11)
- --------------------------------------------------------------------------------------------------
Total Intercompany Receivables $ 53,404,723.51
- --------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------
$ 165,367,804.68
Total Investment in Subsidiaries
- --------------------------------------------------------------------------------------------------
-15-
Exhibit A
---------
[Funding Amendment]