Exhibit 10.77
AMENDMENT NO. 4 TO SECOND AMENDED AND
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RESTATED LOAN AGREEMENT, LIMITED WAIVER AND CONSENT
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AMENDMENT NO. 4 TO SECOND AMENDED AND RESTATED LOAN AGREEMENT, LIMITED
WAIVER AND CONSENT dated as of April 1, 2002 (this "Amendment"), by and among
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MEDALLION FINANCIAL CORP., a Delaware corporation ("MFC"), MEDALLION BUSINESS
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CREDIT, LLC, a Delaware limited liability company ("MBC"; MBC and MFC are
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sometimes hereinafter referred to individually as a "Borrower" and together as
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the "Borrowers"), the lending institutions that are listed on the signature
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pages 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
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as 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;
WHEREAS, the Borrower, the Banks, the Agent and the Swing Line Lender
entered into Amendment No. 3 as of December 31, 2001;
WHEREAS, the provisions set forth in Section 45(b) of Amendment No. 3 could
not become effective until certain waivers and consents were given by the Senior
Note Holders;
WHEREAS, as a condition precedent to the Senior Note Holders granting such
waivers and consents the Senior Note Holders have requested certain amendments
to the Note Purchase Agreement and the Borrower has agreed to such amendments;
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; and
WHEREAS, upon the effectiveness of the amendment to the Note Purchase
Agreement concurrently with the amendment to the Loan Agreement contemplated
herein, the Senior Note Holders shall provide the consents and waivers required
by Amendment No. 3 and this Amendment;
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 Documents as follows:
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1. Amendments to Definitions. Section 1.1 of the Loan Agreement is hereby
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amended by:
(a) deleting the parenthetical in clause (i) of the definition of
"Restricted Payment" in its entirety;
and (b) inserting, in the places required by alphabetical order, the
following new definitions:
"Amendment No. 4" shall mean Amendment No. 4 to Second Amended and
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Restated Loan Agreement dated as of April 1, 2002 among the Borrowers, the
Agent, the Swing Line Lender and the Banks.
"Amendment No. 4 Effective Date" shall mean the "Effective Date", as
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defined in Amendment No. 4.
"Budget" shall have the meaning set forth in Section 6.1(m)(ii)(B)
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hereof.
2. Amendment of Article 2B of the Loan Agreement. Article 2B of the Loan
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Agreement is hereby amended by (a) inserting the following new sentence
immediately following the last sentence of Article 2B(c) of the Loan Agreement:
"Nothing in the foregoing paragraph shall apply to Net Cash Proceeds
received with respect to sales or other dispositions (which are otherwise
permitted to be made by this Agreement) to the extent such Net Cash
Proceeds are applied to make any payment to the Banks required to be made
on May 1, 2002 by Section 2.4(b) hereof.";
and (b) deleting the words "fiscal quarter" and replacing them with the
text "fiscal quarter or fiscal year, as applicable," in both instances in
Article 2B(d).
3. Amendment of Section 6.1 of the Loan Agreement. Section 6.1 of the Loan
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Agreement is hereby amended by deleting Section 6.1(m) in its entirety and
substituting the following new Section 6.1(m) in lieu thereof:
"(m) not later than (i) fifteen (15) Business Days after the last day
of each calendar month, monthly underwater reports with respect to all
Medallion Loans, monthly loan loss reserve reports, monthly delinquency
reports, monthly portfolio aging reports, monthly charge off reports, and
monthly accounts receivable reconciliation reports, in each case in form
and scope acceptable to the Agent, (ii) such reports are delivered to the
Senior Note Holders, (A) any reports prepared by Nightingale & Associates
LLC (to the extent received by the Borrowers or any of their Subsidiaries),
(B) an itemized 13-week cash flow forecast (each such forecast a "Budget")
in the form required to be delivered to the Senior Note Holders pursuant to
Section 7.1(i)(i) of the Note Purchase Agreement, (C) a Budget variance
report for the prior week, in the form required to be delivered to the
Senior Note Holders pursuant to
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Section 7.1(i)(ii) of the Note Purchase Agreement, (D) weekly reports on
the status of asset sales required pursuant to Section 9.13(a) of the Note
Purchase Agreement and weekly reports on the status of refinancing the
Senior Debt, (E) a listing of Loans underwritten or rewritten in the prior
week in the form required to be delivered to the Senior Note Holders
pursuant to Section 7.1(j)(vi) of the Note Purchase Agreement, and (F) an
intercompany receivable report for the prior month and an accounts
receivable reconciliation report for the prior month in the form required
to be delivered to the Senior Note Holders pursuant to Section 7.1(j)(vii)
of the Note Purchase Agreement, (iii) within one (1) Business Day after the
Amendment No. 4 Effective Date,, a copy of the Borrowers' audit report for
the fiscal year ending December 31, 2001, prepared by Arthur Andersen LLP,
together with any management letters issued in connection therewith, which
audit report and management letters shall not contain any exceptions or
going concern qualifications, and (iv) promptly after receipt thereof, all
non-confidential proposals, indication letters or commitment letters
provided by potential refinancing sources for the Borrowers or Medallion
Funding, provided that the applicable Person shall use reasonable best
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efforts to obtain an exception to any confidentiality requirements in order
to be able to provide copies of such proposals and letters to the Agent;"
4. Amendment of Section 7.6 of the Loan Agreement. Section 7.6(b) of the
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Loan Agreement is hereby amended by deleting the figure "$63,000,000" and
replacing it with the figure "$60,000,000" in Section 7.6(b).
5. Waivers.
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(a) Subject to the terms and conditions hereof, each of the Banks hereby
waives the Borrowers' compliance with the requirement of Section 7.6(b) of the
Loan Agreement (as in effect prior to the Effective Date) for the fiscal
quarters ended December 31, 2001 and March 31, 2002; provided, however, that
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during the fiscal quarters ended December 31, 2001 and March 31, 2002, the sum
of Unconsolidated Tangible Net Worth of MFC plus Unconsolidated Tangible Net
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Worth of MBC was not less than $60,000,000 at any time.
(b) Subject to the terms and conditions hereof, each of the Banks hereby
waives the Borrowers' compliance with the requirement of Section 8.3(e)(ii) of
the Loan Agreement (as in effect prior to the Effective Date) for the fiscal
quarter ended March 31, 2002; provided, however, that during the fiscal quarter
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ended March 31, 2002, the aggregate amount of Investments by MFC in Medallion
Funding did not exceed $70,000,000 at any time.
(c) Subject to the terms and conditions hereof, each of the Banks hereby
waives the Borrowers' compliance with the requirement of Section 2.4(b)(ii) of
the Loan Agreement (as in effect prior to the Effective Date); provided,
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however, that the Banks receive the $5,000,000 payment due on the Second
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Revolver Reduction Date no later than Amendment No. 4 Effective Date.
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(d) The Funding Agreement requires that Medallion Funding not breach
certain covenants under the Note Purchase Agreement. Medallion Funding has
reported certain violations of the Note Purchase Agreement. Subject to the terms
and conditions hereof, each of the Agent and the Banks following the
effectiveness of the Senior Note Holders' amendment required by Section 8(h)
hereof, hereby waives any Default or Event of Default which may have occurred or
may occur under Section 9.1(e) of the Loan Agreement as a result of the defaults
listed on Schedule B to the Third Amendment to the Note Purchase Agreement,
provided that such defaults do not exceed the thresholds set forth on Schedule B
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to the Third Amendment to the Note Purchase Agreement.
6. Consents.
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(a) Subject to the terms and conditions hereof, each of the Banks hereby
agrees to defer until May 15, 2002 the payment of $1,875,000 of the Dividend
Prepayment due to the Banks in connection with the Excess Dividends paid on
January 14, 2002.
(b)(i) Each of the Agent and the Banks hereby consents to the amendment of
the Funding Agreement dated as of the date hereof for purposes of Section 2 of
the Collateral Agency Agreement and Section 8.17 of the Loan Agreement, (ii) the
Agent, in its capacity as Collateral Agent under the Collateral Agency
Agreement, hereby consents to the amendment of the Funding Agreement dated as of
the date hereof for purposes of Section 2 of the Collateral Agency Agreement and
Section 8.17 of the Loan Agreement, and (iii) each of the Agent (in its capacity
as Agent under the Loan Agreement and in its capacity as Collateral Agent under
the Collateral Agency Agreement) and the Banks hereby consents to the amendment
of the Note Purchase Agreement dated as of the date hereof for purposes of
Section 2 of the Collateral Agency Agreement and Section 8.10 of the Loan
Agreement. Each of the Agent and the Banks hereby further agrees that the
provisions of Section 45(e) of Amendment No. 3 are no longer effective upon
receipt of evidence satisfactory to the Agent of the effectiveness of the Senior
Note Holders' waiver and consents contained in the amendment to the Note
Purchase Agreement dated as of the date hereof.
7. Representations and Warranties, Etc.
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(a) Each of the Borrowers and the Guarantor hereby 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 45 below are met, as
follows:
(i) The execution and delivery by each of the Borrowers and the
Guarantor of this Amendment, Amendment No. 7 to the Funding Agreement
and Amendment No. 3 to the Note Purchase Agreement and all other
instruments and agreements required to be executed and delivered by
each of the Borrowers and the Guarantor in connection with the
transactions contemplated hereby or thereby or referred to herein or
therein (collectively, the "Amendment Documents"), and the performance
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by each of the Borrowers and the Guarantor of any of its 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 and the
Guarantor, as the
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case may be, have been duly authorized by all necessary proceedings on
behalf of each of the Borrowers and the Guarantor, as the case may be,
and do not and will not contravene any provision of law or of any
judgment, order or decree applicable to or binding on the Borrowers
(or any of them) or the Guarantor, or of the Borrowers' or the
Guarantor's charter, other incorporation or organizational papers, or
by-laws or any stock provision or any amendment thereof or of any
indenture, agreement, instrument or undertaking binding upon the
Borrowers (or either of them) or the Guarantor.
(ii) Each of the Amendment Documents and the Loan Agreement and
other Loan Documents, as amended hereby, to which any of the Borrowers
or the Guarantor is a party constitutes a legal, valid and binding
obligation of such Person, enforceable in accordance with its terms,
except as limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to or affecting generally the
enforcement of creditors' rights.
(iii) 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 and the
Guarantor of the Amendment Documents or the Loan Agreement or other
Loan Documents, as amended hereby, or the consummation by each of the
Borrowers and the Guarantor of the transactions among the parties
contemplated hereby and thereby or referred to herein or therein.
(iv) 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.
(v) Each of the Borrowers and the Guarantor has performed and
complied in all material respects with all terms and conditions herein
and in the Loan Documents 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.
(b) Each of the Borrowers and the Guarantor 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.
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8. 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 to, and in form and
substance satisfactory to, the Agent:
(a) This Amendment shall have been duly executed and delivered by
each of the Borrowers, the Guarantor, the Agent and the requisite
Banks and shall be in full force and effect.
(b) The Agent shall have received from the Secretary of each
Borrower and of the Guarantor a copy, certified by such Secretary to
be true and complete as of such date, of 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
Amendment No. 3 and Amendment No. 4.
(c) The Agent shall have received favorable legal opinions
addressed to the Agent and the Banks, dated as of such date, in form
and substance satisfactory to the Agent, from counsel to the Borrowers
and the Guarantor and Delaware counsel to the Borrowers, concerning
corporate or other applicable entity authority matters and the
enforceability of each of the Amendment Documents, and the Loan
Agreement and the other Loan Documents as amended thereby, and
concerning such other matters as the Agent may request.
(d) Bingham Dana LLP shall have received payment of all fees and
expenses outstanding as of the date hereof, including, but not limited
to, fees and expenses in connection with the preparation of this
Amendment and ancillary documentation.
(e) All reports, statements, schedules, certificates and other
documents required to be delivered to the Agent and each Bank pursuant
to Section 6.1 of the Loan Agreement, as amended by this Amendment,
shall have been so delivered.
(f) The Agent shall have received evidence of the consent of the
Funding Agreement banks under the Collateral Agency Agreement to this
Amendment and the transactions contemplated hereby, and of the waiver
of any defaults existing immediately prior to the Effective Date under
the Funding Agreement.
(g) The Agent shall have received copies of all proposals,
indication letters or commitment letters provided by potential
refinancing sources for either Borrower or Medallion Funding.
(h) The Agent shall have received evidence of the effectiveness
of an amendment to the Funding Agreement and evidence of the
effectiveness of an amendment to the Note Purchase Agreement
satisfactory to the Agent.
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(i) The Agent shall have received evidence of (A) the consent of
the Senior Note Holders (1) under the Collateral Agency Agreement and
the Note Purchase Agreement to the provisions of Amendment No. 3 and
this Amendment requiring such consent and the transactions
contemplated hereby, and (2) under the Collateral Agency Agreement,
the Intercreditor Agreement and the Note Purchase Agreement to the
provisions of Amendment No. 6 (as such term is defined in the Funding
Agreement) and Amendment No. 7 (as such term is defined in the Funding
Agreement) requiring such consent and the transactions contemplated
thereby, and (B) the waiver of any defaults (including defaults
occurring under Sections 9.5, 10.7, 10.8(e), 10.10, 10.13 and 10.14 of
the Note Purchase Agreement) existing under the Note Purchase
Agreement immediately prior to the date such consents and waiver are
given.
(j) The Agent shall have received on or before the Amendment No.
4 Effective Date, for the benefit of the Banks, the $5,000,000 payment
due to the Financial Banks on April 1, 2002.
(k) The Agent shall have received such other items, documents,
agreements or actions as the Agent may reasonably request in order to
effectuate the transactions contemplated hereby.
9. Release. In order to induce the Agent and the Banks to enter into this
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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, the Arranger, the Collateral Agent, the Swing Line
Bank 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, the Arranger, the Collateral Agent, the Swing Line
Bank or any Bank; and (c) each of the Agent, the Arranger, the Collateral Agent,
the Swing Line Bank 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, the
Arranger's, the Collateral Agent's, the Swing Line Bank'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, the Arranger, the Collateral
Agent, the Swing Line Bank or any Bank to such Person, except the obligations to
be performed by the Agent, the Arranger, the Collateral Agent, the Swing Line
Bank 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, the Arranger, the Collateral Agent, the
Swing Line Bank, 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.
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10. 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 and the other
Loan Documents, in each case as amended hereby, including, without limitation,
the Bank 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 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 to the
Loan Agreement 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 or dissimilar
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.
(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.
[signature pages immediately follow]
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
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Name: Alvin Murstein
Title: Chief Executive Officer
By: /s/ James E. Jack
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Name: James E. Jack
Title: Executive Vice President & Chief
Financial Officer
MEDALLION BUSINESS CREDIT, LLC
By: /s/ Alvin Murstein
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Name: Alvin Murstein
Title: Chief Executive Officer
By: /s/ James E. Jack
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Name: James E. Jack
Title: Executive Vice President & Chief
Financial Officer
FLEET NATIONAL BANK (f/k/a Fleet Bank,
National Association), as Agent, as Swing Line
Lender and as one of the Banks
By: /s/ Jeffrey H. Robinson
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Name: Jeffrey H. Robinson
Title: Senior Vice President
HSBC BANK USA
By: /s/ Bruce Wicks
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Name: Bruce Wicks
Title: Vice President
CITIZENS BANK
By: /s/ Thomas D. Opie
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Name: Thomas D. Opie
Title: Vice President
THE BANK OF NEW YORK
By: /s/ Edward J. DeSalvio
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Name: Edward J. DeSalvio
Title: Vice President
JPMORGAN CHASE BANK (f/k/a The Chase
Manhattan Bank)
By: /s/ Carol A. Kornblath
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Name: Carol A. Kornblath
Title: Vice President
ISRAEL DISCOUNT BANK OF NEW YORK
By: /s/ Robert J. Fainelli
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Name: Robert J. Fainelli
Title: First Vice President
By: /s/ Howard Weinberg
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Name: Howard Weinberg
Title: Senior Vice President
CITIBANK, N.A. (f/k/a European American
Bank)
By: /s/ Catherine Wilinski
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Name: Catherine Wilinski
Title: Vice President
BANK LEUMI
By: /s/ Illegible
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Name:
Title:
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY
By: /s/ Friedrich N. Wilms
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Name: Friedrich N. Wilms
Title: Vice President
ACKNOWLEDGED AND AGREED,
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including for purposes of amendments
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to the Guaranty:
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MEDALLION TAXI MEDIA, INC.
By: /s/ Alvin Murstein
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Name: Alvin Murstein
Title: President
By: /s/ James E. Jack
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Name: James E. Jack
Title: Executive Vice President &
Chief Financial Officer