Exhibit 10.2
AMENDMENT NO. 8 TO AMENDED AND
RESTATED LOAN AGREEMENT, LIMITED WAIVER AND CONSENT
AMENDMENT NO. 8 TO AMENDED AND RESTATED LOAN AGREEMENT, LIMITED WAIVER AND
CONSENT dated as of September 11, 2002 (this "Amendment"), by and among
MEDALLION FUNDING CORP., a New York corporation (the "Borrower"), the lending
institutions that are listed on the signature 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 as Agent for the Banks
(including any successor, the "Agent"), amending the Loan Agreement (as defined
below).
WHEREAS, the Borrower, 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
parties to an Amended and Restated Loan Agreement dated as of December 24, 1997
(as amended, the "Loan Agreement", capitalized terms defined therein having the
same meanings herein as therein), pursuant to which the Banks have extended
credit to the Borrower on the terms and subject to the conditions set forth
therein;
WHEREAS, the Borrower has requested certain amendments of the Loan
Agreement and waivers of certain provisions of the Loan Agreement, and, subject
to the terms and conditions set forth herein, the Borrower, the Banks, the Agent
and the Swing Line Lender have agreed to amend the Loan Documents and waive
certain provisions thereof; and
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 hereby agree to amend the Loan Documents as follows:
1. Amendments to Definitions. Section 1.1 of the Loan Agreement is hereby
amended by:
(a) deleting the definition "Term Loan Commitment" in its entirety.
(b) deleting the period at the end of subsection (h) of the definition of
"Eligibility Requirements" and inserting the text "; and" in lieu thereof and
adding the following new subsection (i):
"(i) such Loan, if a Specified Loan, is a Permitted Specified
Loan."
(c) deleting the following definitions in their entirety, and substituting
in lieu thereof the following new definitions:
"Applicable Prime Rate Margin" shall mean (a) zero percent (0.0%) for
the period from and including the Amendment No. 8 Effective Date to but not
including the date which is 120 days after the Amendment No. 8 Effective
Date, (b) one half of one
percent (0.5%) for the period from and including the day which is 120 days
following the Amendment No. 8 Effective Date to but not including the date
which is 240 days after the Amendment No. 8 Effective Date, and (c) one
percent (1.0%) thereafter.
"Borrowing Base" shall mean, as of any date of calculation, an amount
equal to the sum of:
(i) (A) cash of up to $5,000,000, plus (B) cash pledged to the
Agent, for the ratable benefit of the Banks, pursuant to a cash
collateral security agreement in form and substance satisfactory to the
Agent plus (C) Short Term Investments shown on the Borrower's balance
sheet as of such date, plus
(ii) 83.33% of the sum, without duplication, of (A) the aggregate
outstanding principal balances of, plus accrued interest (excluding
deferred interest) on, all Eligible Medallion Loans and Eligible
Commercial Loans shown on Borrower's balance sheet as of the last day
of the most recent month, minus (B) the portion, if any, of the Loans,
plus accrued interest (excluding deferred interest) thereon, that
Borrower, in its reasonable business judgment, deems to be
uncollectible or subject to classification as non-accruing, minus (C)
the Eligible Loans, plus accrued interest (excluding deferred interest)
thereon, which are more than 60 days past due, plus
(iii) 83.33% of 75% of the Eligible Medallion Loans and accrued
interest (excluding deferred interest) thereon which are more than 60
days past due, but are less than 91 days past due, plus
(iv) 83.33% of 65% of the Eligible Medallion Loans and accrued
interest (excluding deferred interest) thereon which are more than 90
days past due, but are less than 121 days past due;
provided, that if all or any part of any Medallion Loan or Commercial Loan
would be excluded under any of the provisions set forth above, then the
entire outstanding principal amount of, plus accrued interest (including
deferred interest) on, such Medallion Loan or Commercial Loan shall be
excluded.
"Collateral" shall mean and include all existing and after-acquired
interests in the assets and property of whatever nature whatsoever, real,
personal or mixed, tangible or intangible, of the Borrower and MFCC. The
term shall include the stock of Media pledged by the Parent pursuant to the
terms of the Parent Pledge Agreement, the stock of MFCC pledged by the
Borrower pursuant to the terms of the Borrower Pledge Agreement and the
beneficial and ownership interests in the SPV pledged by the Borrower
pursuant to the terms of the SPV Pledge Agreement, securing the Loans and
all other property and interests in personal property that shall, from time
to time, secure the Loans.
"Maturity" shall mean August 31, 2003 with respect to all Loans.
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"Term-Out Date" shall mean the Amendment No. 8 Effective Date.
"Term Loan" or "Term Loans" shall mean the Revolving Credit Loans
converted to Term Loans on the Amendment No. 8 Effective Date.
(d) inserting the following new definitions in proper alphabetical order
therein:
"Amendment No. 8" shall mean Amendment No. 8 to Amended and Restated
Loan Agreement, Limited Waiver and Consent dated as of September 11, 2002
among the Borrower, the Agent, the Swing Line Lender and the Banks.
"Amendment No. 8 Effective Date" shall mean the date on which the
Borrower has satisfied, to the Agent's satisfaction, each of the conditions
listed in Section 37(a) to Amendment No. 8, as evidenced by the notice
given pursuant to Section 37(c) therein.
"Documentation Punch List Letter" shall mean that certain letter
agreement dated on or before the Amendment No. 8 Effective Date, among the
Borrower, the Agent and the Senior Note Holders, which sets forth those
items that are required to be completed by the Borrower within the
applicable required periods following the Amendment No. 8 Effective Date.
"▇▇▇▇▇▇▇ ▇▇▇▇▇" shall mean ▇▇▇▇▇▇▇ ▇▇▇▇▇ Bank USA or an affiliate
thereof, including any permitted assignee under the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Facility.
"▇▇▇▇▇▇▇ ▇▇▇▇▇ Facility" shall mean the financing transaction to close
on or about the Amendment No. 8 Effective Date, pursuant to which the SPV
will from time to time borrow money from ▇▇▇▇▇▇▇ ▇▇▇▇▇ and the SPV will
from time to time use the proceeds to purchase Medallion Loans from the
Borrower.
"▇▇▇▇▇▇▇ ▇▇▇▇▇ Loan Agreement" shall mean the Loan and Security
Agreement dated on or about the Amendment No. 8 Effective Date, by and
among the SPV and ▇▇▇▇▇▇▇ ▇▇▇▇▇.
"Permitted Specified Loans" shall mean Specified Loans that do not
exceed (A) $12,000,000 for the period from and including the Amendment No.
8 Effective Date to but not including the date which is ninety (90) days
after the Amendment No. 8 Effective Date, (B) $6,000,000 for the period
from and including the date which is ninety (90) days after the Amendment
No. 8 Effective Date to but not including February 1, 2003 and (C) $0
thereafter.
"Shared Services Agreement" shall mean that certain Shared Services
Agreement dated on or about the Amendment No. 8 Effective Date, between the
Parent and the SPV.
"Specified Loans" shall mean Medallion Loans existing on the Amendment
No. 8 Effective Date, and made to borrowers that were organizations
dissolved at or before the time when such Medallion Loans were made, if, at
the time of reference thereto, the dissolved borrowers have not been
reinstated to entity existence with the
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applicable department of state or secretary of state as if such dissolution
had not occurred.
"SPV" shall mean Taxi Medallion Loan Trust I, a special purpose,
bankruptcy remote, Delaware business trust, established by the Borrower in
connection with the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Facility.
"SPV Pledge Agreement" shall mean that certain Collateral Assignment of
Ownership Interests dated as of September 11, 2002, by the Borrower in
favor of the Agent and the Senior Note Holders and relating to the
beneficial and ownership interests in the SPV.
2. Interest; Removal of LIBO Rate Pricing. As of the Amendment No. 8
Effective Date, all Loans shall bear interest at an annual rate equal to the
Prime Rate plus the Applicable Prime Rate Margin, except as provided in Section
2.6 of the Loan Agreement. As of the Amendment No. 8 Effective Date, LIBO Rate
pricing shall no longer be available under the Loan Agreement. Accordingly, all
references in the Loan Agreement to LIBO Rate Loans, Adjusted LIBO Rate,
Applicable LIBO Margin and LIBO Base Rate are hereby deleted.
3. Removal of Revolving Credit Loans and Swing Line Loans; Term Loans Only.
As of the Amendment No. 8 Effective Date, the Term-Out Date shall have occurred
and all Revolving Credit Loans and Swing Line Loans outstanding shall be
converted to Term Loans. All references on or after the Amendment No. 8
Effective Date to Loans shall refer solely to Term Loans. Notwithstanding any
term to the contrary in the Loan Agreement or the other Loan Documents,
including Section 2.3(c) thereof, on and after the Amendment No. 8 Effective
Date, (i) no Term Loan may be converted to any other loan type and (ii) no
further Loans shall be made as Revolving Credit Loans or Swing Line Loans under
the Loan Agreement. All references in the Loan Agreement and the other Loan
Documents to the terms "Aggregate Revolving Credit Commitments", "Revolving
Credit Commitment", "Revolving Credit Commitment Period", "Revolving Credit
Exposure", "Revolving Credit Loan", "Revolving Credit Loans", "Revolving Credit
Obligations", "Scheduled Swing Line Commitment Termination Date", "Swing Line
Commitment", "Swing Line Commitment Amount", "Swing Line Commitment Period",
"Swing Line Commitment Termination Date", "Swing Line Exposure", "Swing Line
Interest Period", "Swing Line Loan", "Swing Line Loans", "Swing Line Maturity
Date" and "Swing Line Participation Amount" shall be deleted. In addition, all
provisions of the Loan Agreement and the other Loan Documents relating or
otherwise having an effect with respect to any of the defined terms identified
in the preceding sentence are hereby deleted to the extent of such relation or
effect. At the request of any Bank, the Borrower shall deliver to such Bank a
separate promissory note of the Borrower, in substantially the form of Annex A
attached hereto, dated as of the Amendment No. 8 Effective Date and completed in
favor of such Bank in the amount of such Bank's Percentage of the outstanding
Loans and otherwise with appropriate insertions.
4. Amendment of Section 2.2 of the Loan Agreement. Section 2.2 of the Loan
Agreement is hereby amended by:
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(a) deleting Section 2.2(b) in its entirety and substituting the following
new Section 2.2(b) in lieu thereof:
"(b) [Intentionally omitted].; and
(b) deleting Section 2.2(c)(iii) in its entirety and substituting the
following new Section 2.2(c)(iii) in lieu thereof:
"(c)(iii) Interest Rate on the Term Loans. Each Term Loan shall bear
interest, subject to the provisions of Sections 2.6 and 10.14 hereof, until
its Maturity on the principal amount thereof from time to time outstanding
at an annual rate equal to the Prime Rate plus the Applicable Prime Rate
Margin. The rate of interest of each Term Loan shall be computed on the
basis of a 360-day year for the actual number of days elapsed."
5. Amendment of Section 2.5 of the Loan Agreement. Section 2.5 of the Loan
Agreement is hereby amended by:
(a) deleting Section 2.5(b) in its entirety and substituting in lieu
thereof the following new Section 2.5(b):
"(b) Mandatory Repayment of Term Loans. Principal on each Term Loan
shall be repaid by the Borrower to the Agent in accordance with the
amortization schedule set forth below. Such payments (each a "Principal
Payment" and collectively, the "Principal Payments") shall be paid on or
before the dates specified below and shall be applied pro rata to repay the
Senior Notes and the Term Loans in accordance with Section 5 of the
Intercreditor Agreement. Any prepayments of principal on the Term Loans
made on or after August 1, 2002 pursuant to Sections 2.5(a), (c) and (e)
hereof shall be applied against the monthly Principal Payments in
chronological order of the dates on which such Principal Payments are to be
made.
=========================================================================
Date of Principal Payment Amount of Principal Payment
=========================================================================
Within two (2) Business Days $104,000,000
following the Amendment No. 8
Effective Date
-------------------------------------------------------------------------
September 30, 2002 $2,000,000
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October 31, 2002 $2,000,000
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November 30, 2002 $17,000,000
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December 31, 2002 $5,500,000
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January 31, 2003 $21,500,000
-------------------------------------------------------------------------
February 28, 2003 $2,000,000
-------------------------------------------------------------------------
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-------------------------------------------------------------------------
March 31, 2003 $2,000,000
-------------------------------------------------------------------------
April 30, 2003 $1,000,000
-------------------------------------------------------------------------
May 31, 2003 $1,000,000
-------------------------------------------------------------------------
June 30, 2003 $1,000,000
-------------------------------------------------------------------------
July 31, 2003 $1,000,000
-------------------------------------------------------------------------
All outstanding amounts under the
August 31, 2003 Term Loans and Senior Notes
-------------------------------------------------------------------------
(b) deleting Sections 2.5(e)(iii), (iv) and (vi) in their entirety and
substituting the following new Sections 2.5(e)(iii), (iv) and (vi) in proper
alphabetical and numerical order in lieu thereof:
"(iii) Other than sales permitted pursuant to Section 8.3(f)(v), (vi)
and (vii) herein, promptly following the occurrence of any sale, transfer
or disposition of Loans or other assets of the Borrower or any of its
Subsidiaries (following the obtaining of any necessary consents or
approvals hereunder or under any other applicable agreements, including the
Financial Agreement, the Note Purchase Agreement and the Collateral Agency
Agreement, for such sale, transfer or disposition), the Borrower shall
repay (1) outstanding Loans, (2) outstanding Senior Notes, (3) the
principal amounts outstanding of the CP Debt, and (4) the outstanding
principal amount of Indebtedness of the Borrower permitted pursuant to
Section 8.2(g) hereof, in an amount equal to one hundred percent (100%) of
the Net Cash Proceeds of such sale, transfer or disposition, with such Net
Cash Proceeds being allocated among the Banks, the Agent, the CP Holders,
the Senior Note Holders and the holders of the Indebtedness described in
clause (4) of this Section 2.5(e)(iii) on a pro rata basis in accordance
with the provisions of Section 5 of the Intercreditor Agreement. In the
event that any Net Cash Proceeds remain after applying the Net Cash
Proceeds in accordance with the provisions of Section 5 of the
Intercreditor Agreement ("Excess Asset Proceeds"), such Excess Asset
Proceeds shall be transferred to the Operating Account.
(iv) [Intentionally Omitted].
(vi) On or before the Amendment No. 8 Effective Date, upon the
Borrower's receipt of the cash payment necessary to reduce its intercompany
account with the Freshstart Venture Capital Corp. to $0, the Borrower shall
repay (1) outstanding Term Loans, and (2) outstanding Senior Notes, in an
amount equal to one hundred percent (100%) of such payment, with such
payment being allocated among the Banks, the Agent and the Senior Note
Holders on a pro rata basis in accordance with the provisions of Section 5
of the Intercreditor Agreement."
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6. Amendment of Article 2A of the Loan Agreement. Article 2A of the Loan
Agreement is hereby amended by deleting Article 2A in its entirety and
substituting the following new Article 2A in lieu thereof:
"2A. Collateral Security; Guaranties. The Borrower Obligations 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 Financial Agreement) under the Financial Agreement to secure
the obligations thereunder) and to the requirements of the Collateral
Agency Agreement and the Intercreditor Agreement) in substantially all of
the assets of the Borrower and MFCC, whether now owned or hereafter
acquired and wherever located, pursuant to the terms of (1) the Security
Agreements, including a pledge by the Borrower of one hundred percent
(100%) of the capital stock owned by the 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 Borrower shall have used its best
efforts to obtain such consents, with the Borrower acknowledging that the
pledge of (and subsequent enforcement of the security interest in) the
stock of Media requires no such consent, and (2) the Lockbox Agreements
upon the Borrower's compliance with Section 6.21.1 hereof. In addition, the
Borrower Obligations under this Agreement shall be secured by a first
priority perfected pledge by the Borrower in favor of the Agent of its
beneficial and ownership interests in the SPV, for the benefit of the Agent
and the Banks, and the Senior Note Holders, together with the granting by
the Borrower of a first priority perfected security interest in favor of
the Agent, for the benefit of the Agent and the Banks, and the Senior Note
Holders in any claims the Borrower may now or hereafter have against the
SPV, pursuant to the SPV Pledge Agreement, provided that notwithstanding
any provision to the contrary contained herein or in any Loan Document,
voting, disposition or other remedies may not be exercised against the
pledge or security interest until such time as the loans under the ▇▇▇▇▇▇▇
▇▇▇▇▇ Facility have been paid or have been declared to be due and payable
prior to their scheduled maturity (which for clarity does not include rapid
amortization events under the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Facility). The Borrower
Obligations under this Agreement and the other Loan Documents shall also be
guaranteed by the Guarantors pursuant to the terms of the Guaranties
(subject, in the case of Media, to the terms of the Collateral Agency
Agreement and in the case of MFCC, to the terms of the Intercreditor
Agreement); provided, however, that the Guaranty with respect to Media
shall provide that, with the prior written consent of the Agent and the
Required Banks, which consent shall not be conditioned on any requirement
to repay Indebtedness, such Guaranty of Media 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 Media."
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7. Amendment of Article 2B.1 of the Loan Agreement. Article 2.B.1 of the
Loan Agreement is hereby amended by deleting Article 2B.1 in its entirety and
substituting the following new Article 2B.1 in lieu thereof:
"ARTICLE 2B.1 ALLOCATION OF FUNDS IN THE FLEET CONCENTRATION ACCOUNT.
SECTION 2B.1.1. Credit for Funds Received in Concentration Account.
(a) All funds and cash proceeds in the form of money, checks and
like items received in the Fleet Concentration Account as contemplated
by Section 6.21 hereof shall be credited, on the same Business Day on
which the Agent determines that good collected funds have been
received, and, prior to the receipt of good collected funds, on a
provisional basis until final receipt of good collected funds, and
applied as contemplated by Section 2B.1.2 hereof, (b) all funds and
cash proceeds in the form of a wire transfer received in the Fleet
Concentration Account as contemplated by Section 6.21 hereof shall be
credited on the same Business Day as the Agent's receipt of such
amounts (or on such later date as the Agent determines that good
collected funds have been received), and transferred as contemplated by
Section 2B.1.2 hereof, and (c) all funds and cash proceeds in the form
of an automated clearing house transfer received in the Fleet
Concentration Account as contemplated by Section 6.21 hereof shall be
credited, on the next Business Day following the Agent's receipt of
such amounts (or on such later date as the Agent determines that good
collected funds have been received), and transferred as contemplated by
Section 2B.1.2 hereof. For purposes of the foregoing provisions of this
Section 2B.1.1, the Agent shall not be deemed to have received any such
funds or cash proceeds on any day unless received by the Agent before
2:30 p.m. (Boston time) on such day. The Borrower further acknowledges
and agrees that any such provisional credits or credits in respect of
wire or automatic clearing house funds transfers shall be subject to
reversal if final collection in good funds of the related item is not
received by, or final settlement of the funds transfer is not made in
favor of, the Agent in accordance with the Agent's customary procedures
and practices for collecting provisional items or receiving settlement
of funds transfers.
SECTION 2B.1.2. Transfer to Operating Account Prior to Event of
Default. Amounts received in the Fleet Concentration Account which are
determined by the Agent in its sole discretion to be good collected
funds shall be transferred to the Operating Account on a daily basis,
so long as an Event of Default has not occurred of which the account
officers of the Agent active on the Borrower's accounts have knowledge.
The Borrower shall be permitted to invest funds transferred to the
Operating Account pursuant to this Section 2B.1.2 in Cash Equivalents.
SECTION 2B.2. Repayments of Term Loans After Event of Default.
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(a) Following the occurrence and during the continuance of an Event
of Default of which the account officers of the Agent active on the
Borrower's accounts have knowledge but prior to the Agent's election to
exercise its right to accelerate pursuant to Section 9.1 herein, funds
transferred to the Fleet Concentration Account and for which the
Borrower has received credits in an amount equal to such amounts due
and payable under the Senior Debt shall be applied to the outstanding
Senior Debt and allocated among the Banks, the Agent, the Senior Note
Holders, the CP Holders and the holders of the outstanding Indebtedness
permitted pursuant to Section 8.2(g) hereof in accordance with the
terms of the Intercreditor Agreement, and all remaining funds shall be
transferred to the Operating Account.
(b) Following the occurrence and during the continuance of an Event
of Default of which the account officers of the Agent active on the
Borrower's accounts have knowledge and upon the Agent's exercise of its
right to accelerate pursuant to Section 9.1 herein or if all
outstanding Term Loans have not been paid in full at Maturity, all
funds transferred to the Fleet Concentration Account and for which the
Borrower has received credits shall be applied to the outstanding
Senior Debt and allocated among the Banks, the Agent, the Senior Note
Holders, the CP Holders and the holders of the outstanding Indebtedness
permitted pursuant to Section 8.2(g) hereof, in accordance with Section
9.5 hereof and subject to the terms of the Intercreditor Agreement.
8. Amendment of Section 3.1 of the Loan Agreement. Section 3.1 of the Loan
Agreement is hereby amended by deleting Sections 3.1(d), (e), (f) and (g) in
their entirety and substituting the following new Sections 3.1(d), (e) and (f)
in proper alphabetical and numerical order in lieu thereof:
"(d) Amendment No. 8 Amendment Fee. The Borrower agrees to pay to the
Agent, for the pro rata account of each Bank (based on each Bank's
Percentage), on the Amendment No. 8 Effective Date, an amendment fee equal,
in the aggregate, to 0.25% of the principal amount of Term Loans
outstanding after giving effect to payment of the Principal Payment due on
the Amendment No. 8 Effective Date.
(e) Amendment No. 8 Deferred Fee. In the event that all Term Loans have
not been paid in full and all obligations outstanding under the Note
Purchase Agreements (including without limitation principal, accrued
interest and the make-whole amount thereunder) have not been paid in full
on or before August 31, 2003, the Borrower agrees to pay to the Agent, for
the pro rata account of each Bank (based on each Bank's Percentage) and
the Senior Note Holders, a deferred fee in the amount of $500,000 for the
pro rata accounts of the Banks and the Senior Note Holders.
(f) Nature of Fees. All fees hereunder shall, except for the deferred
fee described in Section 3.1(e) hereof, be fully earned as of the Amendment
No. 8
9
Effective Date, and shall in any case be non-refundable when paid. The
deferred fee described in Section 3.1(e) hereof and all other fees payable
hereunder shall be fully earned on the due date therefor."
9. Amendment of Section 4.18 of the Loan Agreement. Section 4.18 of the
Loan Agreement is hereby amended by deleting the text "fiscal years ended March
31, 1995, 1996 and 1997" in the first sentence thereof and substituting the text
"fiscal year ended December 31, 2001" in lieu thereof.
10. Amendment of Section 4.22 of the Loan Agreement. Section 4.22 of the
Loan Agreement is hereby amended by deleting Section 4.22 in its entirety and
substituting the following new Section 4.22 in lieu thereof:
"Section 4.22. Priority; Continued Effectiveness. Except as otherwise
permitted hereunder, the Agent, for the ratable benefit of the Banks and
the CP Holders, have a valid and perfected first priority security interest
(subject to the terms of the Intercreditor Agreement and the Collateral
Agency Agreement) in and to all Collateral, enforceable against the
Borrower and all third parties in all relevant jurisdictions and securing
the payment of the Term Loans and all other sums payable under or in
connection with the Loan Documents. Each of the Borrower Security
Agreement, the Lockbox Agreements, the Parent Pledge Agreement and, after
the execution and delivery thereof, the SPV Pledge Agreement is effective
to create in favor of the Agent, for the ratable benefit of the Banks and
the CP Holders, a valid and perfected first priority (subject to the terms
of the Intercreditor Agreement and the Collateral Agency Agreement and
except as otherwise permitted hereunder) security interest in and to the
Collateral described therein securing the payment of the Term Loans and all
other sums payable under or in connection with the Loan Documents. 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 Borrower Security Agreement, the Lockbox Agreements, the
Parent Pledge Agreement and the SPV Pledge Agreement."
11. Amendment of Section 5.2 of the Loan Agreement. Section 5.2 of the Loan
Agreement is hereby amended by deleting Section 5.2 in its entirety and
substituting the following new Section 5.2 in lieu thereof:
"Section 5.2. [Intentionally omitted]."
12. Amendment of Section 6.1 of the Loan Agreement. Section 6.1 of the Loan
Agreement is hereby amended by deleting Section 6.1(i) in its entirety and
substituting the following new Section 6.1(i) in proper alphabetical order in
lieu thereof:
"(i) (a) on the Amendment No. 8 Effective Date (based upon July 31,
2002 information adjusted to give effect to (1) the repayment of Loans, (2)
transfers of Loans to the SPV, and (3) the transactions contemplated by
Sections 8.11(i)(e)(2) and (6)), and within fifteen (15) Business Days
after the end of every calendar month thereafter or at any other time upon
the Agent's request, a Borrowing Base
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Certificate, signed by each of the chief financial officer of the Borrower
and ▇.▇. ▇▇▇▇▇▇, Inc., or another consultant satisfactory to the Borrower
and the Agent, covering the period commencing with the first day following
the last day of the period covered by the preceding Borrowing Base
Certificate and (b) concurrently with any contribution by the Borrower of
cash or Medallion Loans to, or repurchases of Medallion Loans from, the
▇▇▇▇▇▇▇ ▇▇▇▇▇ Facility as permitted by Sections 8.3(f)(vi) and
8.11(i)(e)(4) herein, a pro forma Borrowing Base Certificate, signed by
each of the chief financial officer of the Borrower and ▇.▇. ▇▇▇▇▇▇, Inc.,
or another consultant satisfactory to the Borrower and the Agent,
demonstrating the Borrowing Base after giving effect to such contribution;"
13. Amendment of Section 6.15 of the Loan Agreement. Section 6.15 of the
Loan Agreement is hereby by amended by deleting Section 6.15 in its entirety and
substituting the following new Section 6.15 in lieu thereof:
"Section 6.15. [Intentionally omitted]."
14. Amendment of Section 6.16 of the Loan Agreement. Section 6.16 of the
Loan Agreement is hereby by amended by deleting Section 6.16 in its entirety and
inserting the following new Section 6.16 in lieu thereof:
"Section 6.16. Post-Closing Matters. The Borrower shall complete each
of the post-closing matters specified in the Documentation Punch List
Letter within the applicable required periods following the Amendment No.
8 Effective Date provided for therein."
15. Amendment of Section 6.21 of the Loan Agreement. Section 6.21 of the
Loan Agreement is hereby amended by deleting the reference to Excess Dividend
Payments in the second sentence thereof.
16. Amendment of Section 6.22 of the Loan Agreement. Section 6.22 of the
Loan Agreement is hereby amended by deleting Section 6.22 in its entirety and
inserting the following new Section 6.22 in lieu thereof:
"Section 6.22. Independent Firm. The Banks and the Agent shall have
access to ▇.▇. ▇▇▇▇▇▇ at all times for, among other things, updates on the
status of ▇.▇. ▇▇▇▇▇▇'▇ work and questions about the scope and substance
thereof. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP on behalf of the Banks and the Agent shall
have the right to hire Argus Management Corporation (or a similar
consulting firm) as their own consulting firm (with the expenses of such
consulting firm to be set forth in detailed monthly bills and to be for the
account of the Borrower), and such consulting firm shall have access at all
times to the officers, employees, records and other information of the
Borrower and their Subsidiaries and shall be permitted to review all
calculations performed in connection with the preparation of each Borrowing
Base Certificate to be delivered pursuant to Section 6.1(i) hereof;
provided, however, that absent a Default or an Event of Default, such fees
and expenses, together with all fees and expenses of Nightingale or any
other advisor hired by the Senior Note
11
Holders or their counsel in connection with the Note Purchase Agreements,
shall not exceed, in the aggregate, (i) $75,000 per month for the period
commencing on the Amendment No. 8 Effective Date through the earlier to
occur of the month in which the outstanding principal amount of Term Loans
and Senior Notes is less than $36,000,000 and November 30, 2002 (it being
understood that such amount shall be pro rated for any partial calendar
months) and (ii) $37,500 per month thereafter. However, the foregoing fee
limitations shall not be imposed in the event the Borrower fails to provide
to the Agent (i) on the Amendment No. 8 Effective Date and on Thursday of
each calendar week thereafter, a 13-week statement of cash flows in the
form currently being provided to the Agent and the Senior Note Holders,
(ii) on the Amendment No. 8 Effective Date and on the 10th and 25th of each
calendar month thereafter, monitoring reports (including without limitation
the form of monitoring report attached hereto as Annex B), in form and
substance satisfactory to the Agent, concerning the various actions
proposed by the Borrower to comply with the schedule of Principal Payments
set forth in Section 2.5(b) hereof, (iii) daily reports regarding cash
balances of the Borrower and its Affiliates, which reports shall be in a
form reasonably acceptable to the Agent and (iv) evidence, in form and
substance satisfactory to the Agent, that each of the items set forth in
the Documentation Punch List Letter to be completed after the Amendment No.
8 Effective Date has been completed in a manner satisfactory to the Agent
on or before November 15, 2002."
17. Amendment of Section 6.23 of the Loan Agreement. Section 6.23 of the
Loan Agreement is hereby by amended by deleting Section 6.23 in its entirety and
inserting the following new Section 6.23 in lieu thereof:
"Section 6.23. Replacement of Servicer.
(a) In the event that ▇▇▇▇▇▇▇ ▇▇▇▇▇, at any time under the ▇▇▇▇▇▇▇
▇▇▇▇▇ Facility, has exercised its right or has given notice that it will
exercise its right to terminate the rights and obligations of the Borrower
(or any permitted successor or assignee of the Borrower) as servicer under
the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Facility, the Borrower shall promptly notify the Agent of
such termination or notice to terminate and, upon such termination or in
the event a notice to terminate has not been rescinded within seven (7)
Business Days after the Borrower's receipt thereof, the Agent shall have
the right to replace the Borrower as servicer with respect to the
Collateral granted pursuant to the Loan Agreement. The Agent may exercise
such right by giving written notice to the Borrower.
(b) In the event of such replacement of the Borrower as servicer of the
Collateral, the Borrower covenants (i) to safeguard the servicing records
and (ii) that all funds and loan documents relating to the Collateral
(collectively, the "Medallion Loan Records") shall, at the option of the
Agent, promptly upon receipt of notice of the Agent's intent to appoint a
new servicer for the Collateral, be submitted to the control of the Agent
or its designee and that, on the date such notice is received, they will be
transferred to the Agent or its designee, without prejudice to the rights,
if any, of either party against the other.
12
(c) Prior to the replacement of the Borrower as servicer of the
Collateral, the Agent may arrange for the collateral agent appointed
pursuant to the Intercreditor Agreement (the "Collateral Agent") to
establish with the Agent a segregated account on behalf of the Borrower
(the "Alternate Collection Account"). The Agent shall notify the Borrower
of the establishment of the Alternate Collection Account, specifying the
account number for such account. From and after receipt of such notice, all
collections arising with respect to the Collateral shall, whether credited
to the Fleet Concentration Account or otherwise received by the Borrower,
the Collateral Agent, the Agent, any replacement servicer appointed by the
Agent or any other Person, be deposited in the Alternate Collection
Account. The Collateral Agent shall distribute the funds on deposit in the
Alternate Collection Account in accordance with Article 2B hereof and
subject to the terms of the Intercreditor Agreement on each date a
principal payment is required under Section 2.5(b) hereof and each date
interest is payable under this Agreement in accordance with the terms of
Section 5(d) of the Intercreditor Agreement. The Borrower hereby pledges to
the Collateral Agent, for itself, the Agent, the Banks and the Senior Note
Holders, and grants the Collateral Agent a security interest in the
Alternate Collection Account and all funds that may be on deposit there
from time to time. The Borrower further covenants and agrees (i) to provide
notification to the obligors in respect of any Medallion Loan, Commercial
Loan or other Collateral to make all payments in respect of such Collateral
directly to the Alternate Collection Account and (ii) to otherwise
cooperate with the Agent in ensuring that such payments are made directly
to the Alternate Collection Account.
(d) Notwithstanding any appointment of a new servicer hereunder, the
Borrower shall not be relieved of liability for all amounts due, or
responsibilities owed the Agent or the Banks hereunder. The Borrower
forthwith upon receipt of notice of the Agent's appointment of a new
servicer for the Collateral shall (i) pay over to the Agent or its designee
all amounts held by it or subsequently received by it with respect to the
affected Collateral or the proceeds thereof, (ii) deliver to the Agent a
full accounting in respect of the affected Collateral, including a
statement showing the monthly payments and other amounts collected by or
with respect to such Collateral and a statement of moneys held in trust by
or on behalf of it for the payment of taxes, insurance premiums or other
charges with respect to the affected Collateral, (iii) otherwise use its
best efforts to effect the orderly and efficient transfer of servicing of
the affected Collateral to the designee selected by the Agent, and (iv)
arrange for the physical transfer and delivery to designee selected by the
Agent of all Collateral and copies thereof in its possession, and all
Medallion Loan Records."
18. Amendment of Article 7 of the Loan Agreement. Article 7 of the Loan
Agreement is hereby amended by deleting Article 7 in its entirety and
substituting the following new Article 7 in lieu thereof:
"ARTICLE 7. FINANCIAL COVENANTS.
13
The Borrower covenants and agrees that, until the Notes, together with
interest and all other Indebtedness of Borrower to the Agent or the Banks
under this Agreement and the other Loan Documents, are paid in full,
Borrower and its Subsidiaries shall not, without the prior written consent
of the Agent and the Required Banks:
Section 7.1. [Intentionally Omitted].
Section 7.2. [Intentionally Omitted].
Section 7.3. Borrowing Base. Suffer or permit at any time the aggregate
unpaid balance of all Senior Debt to exceed the Borrowing Base.
Section 7.4. [Intentionally Omitted].
Section 7.5. [Intentionally Omitted].
Section 7.6. [Intentionally Omitted]."
19. Amendment of Section 8.1 of the Loan Agreement. Section 8.1(a) of the
Loan Agreement is hereby amended by inserting the words ", the SPV Pledge
Agreement" immediately following the words "the Borrower Security Agreement" in
clause (i) thereof."
20. Amendment of Section 8.2 of the Loan Agreement. Section 8.2(e) of the
Loan Agreement is hereby amended by inserting the words "including unsecured
liabilities (other than Indebtedness for money borrowed or that is evidenced by
bonds, debentures, notes or other similar instruments) of the Borrower in favor
of the SPV incurred in connection with the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Facility" immediately
before the semicolon at the end of such section.
21. Amendment of Section 8.3 of the Loan Agreement. Section 8.3 of the Loan
Agreement is hereby amended by deleting Sections 8.3(e) and (f) in their
entirety and substituting the following new Sections 8.3(e) and (f) in lieu
thereof:
"(e) (i) Make or maintain 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 in the Parent arising in relation to
the intercompany account between the Borrower and the Parent in an
aggregate amount not to exceed $8,598,828 through Maturity, (ii)
Investments in the SPV made (A) in connection with the formation and
capitalization of the SPV as required under or in connection with the
▇▇▇▇▇▇▇ ▇▇▇▇▇ Facility and (B) in order to cure or prevent any borrowing
base default or rapid amortization event under the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Facility,
provided that no Event of Default shall exist with respect to the Loan
Agreement or the Note Purchase Agreements and no Event of Default shall
exist with respect to the Loan Agreement or the Note Purchase Agreements
after giving effect to such transactions and (iii) Investments existing on
the Amendment No. 7 Effective Date and listed on Schedule III hereto. For
the avoidance of doubt, the Borrower shall not make, nor
14
shall the Borrower permit any of its Subsidiaries to make, any Investment
in Media or Business Lenders, LLC following the Amendment No. 6 Effective
Date.
(f) Sell, discount or otherwise dispose of Loans or any Collateral or
sell, discount or otherwise dispose of other Receivables or obligations
owing to the Borrower or any of its Subsidiaries, with or without recourse,
other than (i) in connection with the grant of any participation in
accordance with and to the extent permitted by Section 2.14 hereof, and
consistent in any event with past practices, (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 Media and for so long as
the Collateral Agency Agreement is in effect, the Collateral Agent, for the
benefit of the Banks, the Senior Note Holders and the CP Holders, (iv) with
respect to the sales of Loans by the Borrower to its Affiliates made prior
to the Amendment No. 8 Effective Date and described on Schedule 8.3(f)
hereto, (v) on or prior to the Amendment No. 8 Effective Date, Commercial
Loans in an aggregate principal amount not to exceed $10,000,000 including
any accrued and unpaid interest and without discount thereon to the Parent
in exchange for Medallion Loans of equivalent value (which determination of
equivalency shall take into account any cash payment from the Borrower, in
such amount as approved by the Agent, but in no event to exceed $200,000,
to achieve such equivalency and shall be satisfactory to the Agent), all
pursuant to documentation reasonably acceptable to the Agent and the Senior
Note Holders, (vi) sales of Loans as permitted or required by the ▇▇▇▇▇▇▇
▇▇▇▇▇ Facility including sales of new Medallion Loans made on or after the
Amendment No. 8 Effective Date and the contribution of Medallion Loans to
the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Facility in order to cure or prevent any borrowing base
defaults or rapid amortization event under the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Facility,
(vii) after the Amendment No. 8 Effective Date, participations in Medallion
Loans in an aggregate principal amount not to exceed $5,000,000 including
any accrued and unpaid interest and without discount thereon to Atlantic
Bank, as the lead lender, in exchange for a 100% interest in approximately
$4,750,000 of Medallion Loans with respect to which Atlantic Bank was the
lead lender and a 5% interest in approximately $5,000,000 of Medallion
Loans with respect to which Atlantic Bank is the lead lender, all pursuant
to documentation reasonably acceptable to the Agent and the Senior Note
Holders, and (viii) sales of Loans permitted pursuant to Section 8.6(b)
hereof; provided that in each such case referred to in this Section 8.3(f),
no Default or Event of Default has occurred or is continuing, or would
result therefrom."
22. Amendment of Section 8.5 of the Loan Agreement. Section 8.5 of the
Loan Agreement is hereby amended by deleting Section 8.5 in its entirety and
substituting the following new Section 8.5 in lieu thereof:
"Section 8.5. Restricted Payments. Make, or obligate itself to make,
any Restricted Payment, provided that (a) after the Amendment No. 8
Effective Date, the Borrower may make quarterly payments of the sum of (i)
the minimum amount of Dividends required to be paid for such Borrower to
retain its status as a regulated investment company pursuant to Section
851(a) of the Code, plus (ii) the payment of Dividends required to be paid
in order to avoid the imposition of excise taxes
15
pursuant to the Code, as determined by the Borrower's independent
accountants on the basis of good faith estimates provided by the Borrower,
provided that any such amount to be paid under this Section 8.5(a)(ii)
shall be quantified by the Borrower and in connection therewith, the
Borrower authorizes the Agent and the Senior Note Holders to communicate
directly with the Borrower's independent accountants and authorizes such
accountants to disclose to Agent and the Senior Note Holders any and all
financial statements and other supporting financial documents and schedules
including copies of any management letter with respect to the business,
financial condition and other affairs of the Borrower and its Subsidiaries
and, provided further that five (5) days prior to any such payment, the
Borrower shall deliver a certificate demonstrating pro forma compliance
with Section 7.3 hereof after making such payment with respect to any
Principal Payments to be made with respect to Senior Debt, (b) after the
Amendment No. 8 Effective Date, the Borrower contribute additional
Medallion Loans or cash to, and/or repurchase at fair value Medallion Loans
from the SPV in connection with the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Facility in order to (1)
cure or prevent any borrowing base defaults or rapid amortization event
under the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Facility and (2) to reacquire any Medallion Loans
sold to the SPV which did not at the time of such sale meet the
"eligibility criteria" for sale under the terms of the ▇▇▇▇▇▇▇ ▇▇▇▇▇
Facility, provided, in each case, that no Event of Default shall exist with
respect to the Senior Facilities and no Event of Default shall exist with
respect to the Senior Facilities after giving effect to such transactions,
and provided further that the Borrower provides prior written notice to the
Agent and the Senior Note Holders of any such contributions and/or
repurchases pursuant to this Section 8.5(b), and (c) on the date any
Principal Payment or other prepayment (whether voluntary or otherwise) is
made in accordance with Section 2.5 hereof, the Borrower may prepay
outstanding principal amounts of the Senior Note Debt in an aggregate
amount not to exceed the result of 17.25227% multiplied by the sum of the
amount of such payment plus the aggregate amount of the Principal Payment
or other repayment, as applicable, is made to the Banks on such date. Any
such Restricted Payments permitted under Section 8.5(a) above that are made
to the Parent shall be paid as a credit to the intercompany balance owing
from the Parent to the Borrower."
23. Amendment of Section 8.6 of the Loan Agreement. Section 8.6 of the
Loan Agreement is hereby amended by deleting Section 8.6(b) in its entirety and
substituting the following new Section 8.6(b) in lieu thereof:
"(b) Subject to any additional requirements under Section 8.11 hereof,
(i) sell, discount or otherwise dispose of Loans or any Collateral, other
than (A) as permitted by Sections 8.3(f)(v), (vi) and (vii) and Section
8.11(i)(e)(2),(B) the sale of Loans to an Affiliate for cash for a price
not less than the sum of the outstanding principal amount thereof, plus any
accrued and unpaid interest and without discount thereon, and (C) the sale
of Loans to any Person who is not an Affiliate for a cash price not less
than the outstanding principal amount thereof plus any accrued and unpaid
interest and without discount thereon, provided such sale is an arm's
length transaction made pursuant to the reasonable requirements of the
Company's or such Subsidiary's business; or (ii) sell, discount or
otherwise dispose of other Receivables or obligations owing to the Borrower
or any of its Subsidiaries, with or without
16
recourse, other than (A) in connection with the grant of any participation
in accordance with and to the extent permitted by Section 2.14 hereof and
consistent in any event with past practices, (B) to a non-Affiliate for
collection in the ordinary course of business, or (C) to the Agent for the
benefit of the Banks (subject to the terms of the Intercreditor Agreement);
provided further that, in each such case, (x) immediately upon such sale or
other disposition, the Borrower makes, in accordance with the provisions of
Section 2.5(e)(iii) hereof, a mandatory prepayment of the outstanding Term
Loans and outstanding Senior Notes in an amount equal to the aggregate
principal amount, plus accrued interest, of the Loans so sold or otherwise
disposed of, and (y) no Default or Event of Default has occurred or is
continuing, or would result therefrom."
24. Amendment of Section 8.11 of the Loan Agreement. Section 8.11 of the
Loan Agreement is hereby amended by deleting Section 8.11 in its entirety and
substituting the following new Section 8.11 in lieu thereof:
"Section 8.11. Transactions with Affiliates.
(i) (a) Enter into, or cause, suffer, or permit to exist, any
transactions, including, without limitation, the purchase, sale, lease or
exchange of any property or the rendering of any service, with any
Affiliate on fair and reasonable terms that are less favorable to the
Borrower than those that would be obtainable at the time in a comparable
arm's-length transaction from any Person who is not an Affiliate; (b)
become an Affiliated Person of any Bank or any Affiliated Person of any
Bank known to the Borrower; and the Borrower shall use its best efforts to
ensure that none of its Affiliated Persons is or becomes an Affiliated
Person of any Bank or an Affiliated Person of any Bank known to the
Borrower; (c) sell, discount or otherwise dispose of Loans or any
Collateral to any Affiliate, other than any sale permitted by Sections
8.3(f)(i), (v) and (vi) and Section 8.6(b) hereof; (d) sell, discount or
otherwise dispose of other Receivables or obligations owing to the Borrower
or any of its Subsidiaries to any Affiliate, with or without recourse,
other than any transaction permitted by Sections 8.3(f)(v) and (vi) hereof;
and (e) transfer any assets or cash to any Affiliate, excluding for
purposes hereof (1) the payment to an Affiliate of such amounts as may be
received on account of Loans serviced by the Borrower on such Affiliate's
behalf, after deduction of management fees provided under the respective
sale, transfer or participation agreement, (2) on or prior to the Amendment
No. 8 Effective Date, the transfer of $4,100,000 to the Parent as
reimbursement for allocable overhead and expenses incurred by the Parent
for services rendered to or on behalf of the Borrower prior to July 1,
2002, provided, that arrangements satisfactory to the Agent and the Senior
Note Holders have been made for (A) the Parent, upon receipt of such
proceeds, to make a capital contribution in the amount of $5,000,000 to
Freshstart Venture Capital Corp., (B) Freshstart Venture Capital Corp. to
purchase from the Borrower for cash, at the outstanding principal amount
thereof plus any accrued and unpaid interest and without discount thereon
and pursuant to documentation all as reasonably acceptable to the Agent and
the Senior Note Holders, Medallion Loans that do not satisfy the
Eligibility Requirements and (C) the proceeds received by the Borrower to
be applied pro rata to permanently reduce
17
outstanding principal of the Senior Notes and the Term Loans in accordance
with Section 5 of the Intercreditor Agreement within two (2) Business Days
following the $4,100,000 transfer to the Parent referred to above, (3)
after the Amendment No. 8 Effective Date, the transfer of cash
reimbursements to the Parent for all allocable overhead and expenses
(including salary and other customary intercompany charges) incurred by the
Parent for services rendered to or on behalf of the Borrower after July 1,
2002, in a manner consistent with the Borrower's existing method of
allocation as of July 1, 2002, (4) contributions from the Borrower of
additional Medallion Loans or cash to, and/or repurchases of such Medallion
Loans from, the SPV in connection with the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Facility for an
amount equal to the outstanding principal amount thereof plus any accrued
and unpaid interest and without discount thereon in order (x) to cure or
prevent any borrowing base defaults or rapid amortization event under the
▇▇▇▇▇▇▇ ▇▇▇▇▇ Facility and (y) to reacquire any Medallion Loans sold to the
SPV which did not at the time of such sale meet the "eligibility criteria"
for sale under the terms of the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Facility, provided, in each
case, that no Event of Default shall exist with respect to the Senior
Facilities and no Event of Default shall exist with respect to the Senior
Facilities after giving effect to such transactions and provided further
that the Borrower provides prior written notice to the Agent and the Senior
Note Holders of any such contributions and/or repurchases pursuant to this
Section 8.11(e)(4), (5) any other transaction contemplated under the
▇▇▇▇▇▇▇ ▇▇▇▇▇ Facility or pursuant to the Shared Services Agreement, (6)
the repurchase, at the outstanding principal amount thereof plus any
accrued and unpaid interest and without discount thereon, of (x)
participations in Medallion Loans from Freshstart Venture Capital Corp. on
or prior to the Amendment No. 8 Effective Date and (y) participations in
Medallion Loans from Atlantic Bank as permitted by Section 8.3(f)(vii)
hereof, in each case solely in connection with a concurrent transfer of
such Medallion Loans to the SPV in connection with the ▇▇▇▇▇▇▇ ▇▇▇▇▇
Facility so long as (A) the net proceeds from such transfer are, upon
receipt, applied to permanently reduce outstanding principal of the Term
Loans and the Senior Notes in accordance with Section 5 of the
Intercreditor Agreement, (B) after giving effect to such repurchase and
application of net proceeds, no Event of Default is continuing with respect
to the Loan Agreement or the Note Purchase Agreements and (C) unless
otherwise approved by the Agent, the aggregate amount transferred by the
Borrower in connection with any such repurchases does not exceed $500,000
and (7) transfers of Commercial Loans pursuant to Section 8.3(f)(v) hereof.
(ii) After the Amendment No. 8 Effective Date, all intercompany
transactions concerning loans serviced by the Borrower for any Affiliate or
by any Affiliate for the Borrower, including, without limitation, sales,
payoffs, prepayments, amortization and interest, shall be paid by the
Borrower, and to the extent the Borrower has the right to do so, shall be
caused by the Borrower to be paid by any such Affiliate, in cash on a
monthly basis. In the event funds received on account of any such
intercompany transaction exceed $250,000 with respect to any particular
loan, settlement of such transaction shall be made in cash and shall occur
no later than five (5) Business Days after such funds are received by the
Borrower, as servicer."
18
25. Amendment of Section 8.16 of the Loan Agreement. Section 8.16 of the
Loan Agreement is hereby amended by deleting Section 8.16 in its entirety and
substituting the following new Section 8.16 in lieu thereof:
"Section 8.16. Portfolio Purchases. Make or effect, or obligate itself
to make or effect, any Portfolio Purchase or other asset acquisition (other
than the acquisition of assets in the ordinary course of business
consistent with past practices) or stock (or other equity interest)
acquisition, other than (i) the exchange of Commercial Loans for Medallion
Loans as permitted by Section 8.3(f)(v) hereof, (ii) the repurchase of
Medallion Loans from the SPV in connection with the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Facility
as permitted by Section 8.11(i)(e)(4) hereof and (iii) the repurchase of
participations in Medallion Loans from Freshstart Venture Capital Corp. or
Atlantic Bank as permitted by Section 8.11(i)(e)(6) hereof."
26. Amendment of Section 8.17 of the Loan Agreement. Section 8.17 of the
Loan Agreement is hereby amended by deleting Section 8.17 in its entirety and
substituting the following new Section 8.17 in lieu thereof:
"Section 8.17. Securitizations. Enter into any securitization or
similar transaction (i.e., any transfer of its assets in connection with
any sale, assignment or other transfer of any receivables, including
accounts receivable, loan receivables, lease receivables or other payment
obligations or any interest in any of the foregoing, which may in each case
include any collections and other proceeds thereof, any collection or
deposit accounts related thereto, or any collateral, guarantees or other
property or claims supporting or securing payment by the obligor thereon
of, or otherwise related to, any such receivables) other than the ▇▇▇▇▇▇▇
▇▇▇▇▇ Facility without the prior written consent of the Agent and the
requisite Banks (as determined by reference to Section 10.2 hereof) or as
otherwise permitted by Sections 8.3(f)(i), (iii) and (vi) hereof."
27. Amendment of Section 8.18 of the Loan Agreement. Section 8.18 of the
Loan Agreement is hereby amended by deleting Section 8.18 in its entirety and
inserting the following new Sections 8.18 and 8.19 in lieu thereof:
"Section 8.18. Subsidiaries, etc. Form, acquire, create or otherwise
suffer to exist any Subsidiary other than MFCC and the SPV, provided,
however, that the Borrower, MFCC and the SPV comply with the requirements
of Section 6.16 hereof.
Section 8.19. Executive Compensation. Directly or indirectly pay any
executive bonuses to, or otherwise increase the compensation in effect on
the Amendment No. 8 Effective Date of, either ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ or ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ until payment in full of the Senior Obligations (as defined in the
Intercreditor Agreement, and inclusive of the Make-Whole Amount)."
28. Amendment of Section 9.1 of the Loan Agreement. Section 9.1 of
the Loan Agreement is hereby amended by:
19
(a) deleting the references to Sections 6.1(k)(iv) and 6.16 in Section
9.1(b);
(b) deleting the text "or 6.22" in Section 9.1(b) and substituting the text
", 6.22 or 6.23" in lieu thereof;
(c) deleting the text "Section 6.7" in the parenthetical in Section 9.1(c)
and substituting the text "Sections 6.7 and 6.16" in lieu thereof;
(d) inserting the following parenthetical immediately before the semicolon
at the end of Section 9.1(d):
"(it being understood by the parties hereto that the provisions of this
Section 9.1(d) shall not apply to the Documentation Punch List Letter)";
(e) inserting the word "or" at the end of Section 9.1(f)(i) and deleting
Section 9.1(f)(iii) in its entirety;
(f) deleting the comma at the end of Section 9.1(f)(ii) and inserting a
semicolon in lieu thereof; and
(g) inserting the following new Sections 9.1(n) and (o) in proper
alphabetical order therein:
"(n) if loans made to the SPV under the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Loan Agreement
shall have become due and payable in full (whether at maturity or by
acceleration) and shall not have been paid in full (it being understood
that a rapid amortization event under the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Facility shall not
be included in this clause(n)); and
(o) if the Agent shall not have received $5,000,000 in proceeds from
the Borrower on account of the sale of Medallion Loans to Freshstart
Venture Capital Corp. within two (2) Business Days following the transfer
of $4,100,000 by the Borrower to the Parent in connection with the
transaction permitted and as required by Section 8.11(i)(e)(2) hereof."
29. Amendment of Section 9.2 of the Loan Agreement. Section 9.2 of the Loan
Agreement is hereby amended by adding the following new sentence at the end of
such Section:
"In addition and subject to the provisions of the Intercreditor Agreement,
in case any one or more Events of Default shall occur and be continuing, each
Bank, if owed any amount with respect to the Loans, may, with the consent of the
Required Banks but not otherwise, proceed to protect and enforce its rights by
suit in equity, action at law or other appropriate proceeding, whether for the
specific performance of any covenant or agreement contained in this Agreement
and the other Loan Documents or any instrument pursuant to which the Borrower
Obligations to such Bank are evidenced, and, if such amount shall have become
due, by declaration or otherwise, proceed to enforce the payment thereof or any
other legal or equitable right of such Bank."
20
30. Amendment of Section 9.5 of the Loan Agreement. Section 9.5 of the Loan
Agreement is hereby amended by deleting Section 9.5 in its entirety and
substituting the following new Section 9.5 in lieu thereof:
"Section 9.5 Further Payments. Subject to the terms of the
Intercreditor Agreement, in the event that the Term Loans and all other
amounts owing under the Loan Documents shall have been declared due and
payable pursuant to the provisions of this Section or that all outstanding
Term Loans shall not have been paid in full at Maturity, any funds received
by the Agent and the Banks from or on behalf of the Borrower shall be
remitted to, and applied by, the Agent in the following manner and order:
(a) first, to the payment of interest on, and then the principal portion
of, any Term Loans which the Agent may have advanced on behalf of any Bank
for which the Agent has not then been reimbursed by such Bank or the
Borrower; (b) second, to reimburse the Agent and the Documentation Agent
for any expenses due from the Borrower pursuant to the provisions of
Section 10.6, (c) third, to the payment of the Fees, (d) fourth, to the
payment of any other fees, expenses or amounts (other than the principal of
and interest on the Term Loans) payable by the Borrower to the Agent, the
Documentation Agent or any of the Banks under the Loan Documents, (e)
fifth, to the payment, pro rata according to the Exposure Percentage of
each Bank, of interest due on the Term Loans, (f) sixth, to the payment,
pro rata according to Exposure Percentage of each Bank, of principal on the
Term Loans, of such principal, (g) seventh, any remaining funds shall be
paid to whomsoever shall be entitled thereto or as a court of competent
jurisdiction shall direct."
31. Amendment of Section 10 of the Loan Agreement. Section 10 of the Loan
Agreement is hereby amended by adding the following new Section 10.19 in proper
numerical order therein:
"Section 10.19 Security Interest in Reacquired Medallion Loans. The
Borrower hereby acknowledges that, notwithstanding any release or waiver of
any Lien given in connection with the sale or contribution of Medallion
Loans by the Borrower to the SPV, the Lien created by the Borrower Security
Agreement shall attach to all after-acquired Collateral (as defined in the
Borrower Security Agreement) including, without limitation, any Medallion
Loan repurchased or reacquired by the Borrower following the sale or
contribution of such Medallion Loan to the SPV."
32. Amendment to Schedules to the Loan Agreement. The Schedules to the Loan
Agreement are hereby amended by deleting Schedule III thereto in its entirety
and substituting in lieu thereof Schedule III attached hereto.
33. Waivers.
(a) Subject to the terms and conditions hereof, each of the Banks hereby
waives (i) the Borrower's compliance with the requirement of Section 8.3(e)(i)
of the Loan Agreement (as in effect prior to the Amendment No. 8 Effective
Date); provided, however, that Investments in the Parent with respect to the
intercompany account between the Borrower
21
and the Parent in an aggregate amount do not to exceed $8,598,828 through August
31, 2003 and (ii) the Events of Default listed on Annex C attached hereto.
(b) The Borrower hereby acknowledges that (i) one or more Events of Default
have occurred under the Loan Agreement since May 15, 2002, (ii) the waivers
contained in this Amendment shall not become effective until the Amendment No. 8
Effective Date and (iii) the Agent has been collecting, and will continue to
collect until the Amendment No. 8 Effective Date, for the ratable benefit of the
Banks, and the Banks shall be entitled to retain, interest on all outstanding
Loans at the rate of interest set forth in Section 2.6 of the Loan Agreement.
(c) The Borrower has reported certain violations of the Note Purchase
Agreements. Subject to the terms and conditions hereof, each of the Agent and
the Banks, following the effectiveness of the Senior Note Holders' waiver
required by Section 36(d) hereof, hereby waives any Default or Event of Default
which may have occurred or may occur under Section 9.1(f) of the Loan Agreement
to the extent such defaults are described in such waiver of the Senior Note
Holders, provided that such defaults do not exceed the thresholds required by
the Senior Note Holders in any such waiver of the defaults and events of default
under the Note Purchase Agreement.
34. Amendments to the Security Agreement. The Borrower Security Agreement
is hereby amended by:
(a) (i) deleting the period at the end of Section 4.1(l) and substituting a
semicolon in lieu thereof, and (ii) adding the following new paragraph at the
end of Section 4.1:
"excluding, however, from the representations contained in Sections
4.1(b) and (c) above, Specified Loans which do not comply with such
Sections solely on account of such Loans' status as Specified Loans."
(b) adding the following new paragraph at the end of Section 6.10:
"To the extent any Investments are made in the SPV as permitted by
Section 8.3(e)(ii) of the Loan Agreement, the SPV shall acquire the assets
comprising such Investments free and clear of the liens created by this
Agreement and the other Loan Documents. To the extent that any Medallion
Loan, Commercial Loan or other asset is sold, transferred or disposed of
and the sale, transfer or disposition is permitted under the Loan
Agreement, the sale, transfer or disposition of the asset shall be free and
clear of the liens created by this Agreement and the other Loan Documents.
However, in the case of any such permitted Investment, sale, transfer or
disposition, the liens created by this Agreement and the other Loan
Documents shall attach to the proceeds of the Investment, sale, transfer of
disposition. In the case of an Investment, sale, transfer or disposition
free and clear of the liens created by this Agreement and the other Loan
Documents, the Agent is authorized to provide to the transferee appropriate
evidences of release of the liens. If the Investment, sale, transfer or
disposition is permitted under the Loan Agreement only in the absence of a
Default or Event of Default, the Agent shall be fully protected in
providing such
23
evidence of release so long as the officers of the Agent active on the
Borrower's account have no actual knowledge of the existence of a Default
or Event of Default. Nothing contained in this Section 6.10 shall result in
a lien on or a security interest in the capital stock of Freshstart Venture
Capital Corp in favor of the Agent."; and
(c) adding the following new Section 6.16 in proper numerical order
therein:
"Section 6.16. Inconsistent Provisions. If any provision of this
Agreement relating to any lien on or security interest in any Investment by
the Borrower in Taxi Medallion Loan Trust I, a special purpose, bankruptcy
remote, Delaware business trust, shall be inconsistent with, or contrary
to, any provision in the Collateral Assignment of Ownership Interests dated
as of September 11, 2002 (the "Assignment"), from the Borrower in favor of
the Agent, the provision in the Assignment shall be controlling and shall
supersede such inconsistent provision in this Agreement to the extent
necessary to give full effect to all provisions contained in the
Assignment; provided, however, that but for the limitations imposed on
account of the Standback Termination Date (as such term is defined in the
Assignment), nothing contained in the Assignment shall derogate from any of
the rights or remedies of the Agent contained in this Agreement or such
document."
35. Irrevocable Payment Instructions.
(a) Subject to the provisions of Section 6.22 of the Loan Agreement, if the
Agent should at any time or from time to time determine that any invoices for
the fees and expenses of counsel to the Agent or any invoices for the fees and
expenses of Argus Management Corporation or any other financial consultants
hired by the Agent or its counsel have not been reimbursed by the Borrower to
the Agent, the Agent shall be entitled to debit the Borrower's Operating Account
in an amount equal to the outstanding fees and expenses and to apply such amount
to the unreimbursed fees and expenses.
(b) The Borrower has entered into a funds transfer agreement with the Agent
on the Agent's customary form. The following provisions are supplemental to the
funds transfer agreement:
(i) The Borrower hereby submits to the Agent a standing payment order
to pay from the Borrower's Operating Account the amount set forth at any
time or from time to time in any written notification received by the Agent
from the Senior Note Holders (A) stating that the funds transfer is being
requested to pay the outstanding fees and expenses of counsel to the Senior
Note Holders, Nightingale & Associates LLC or any other financial
consultants hired by the Senior Note Holders or their counsel and (B)
containing funds transfer instructions.
(ii) The Agent shall be fully protected in relying on any such
notification and complying with the funds transfer instructions contained
therein and shall not be responsible for the truth, accuracy, authenticity
or genuineness of the notification or of any information contained therein.
The Borrower agrees to indemnify and to hold
23
the Agent harmless from and against any losses, costs or expenses sustained
or incurred by the Agent in accepting a payment order and complying with
the funds transfer instructions. Such indemnity obligations shall
constitute obligations under the Credit Agreement secured by the
Collateral.
(iii) The standing payment order set forth in this Section 35(b) may
not be cancelled without the prior written consent of the Senior Note
Holders. The Borrower and the Agent agree not to amend the funds transfer
agreement between them so as to derogate from the provisions in favor of
the Senior Note Holders contained in this Section 35(b).
36. Representations and Warranties, Etc.
(a) Each of the Borrower and the Guarantors 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 37 below are met, as
follows:
(i) The execution and delivery by each of the Borrower and the
Guarantors of this Amendment, Amendment No. 5 to the Financial
Agreement and all other instruments and agreements required to be
executed and delivered by each of the Borrower and the Guarantors in
connection with the transactions contemplated hereby and thereby or
referred to herein or therein (collectively, the "Amendment
Documents"), and the performance by each of the Borrower and the
Guarantors of any of their respective obligations and agreements under
the Amendment Documents, the Loan Agreement and the other Loan
Documents, as amended hereby, are within the corporate or other
authority of each of the Borrower and the Guarantors, as the case may
be, have been duly authorized by all necessary proceedings on behalf of
each of the Borrower and the Guarantors, 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 Borrower or the Guarantors,
or of the Borrower's or either 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 Borrower or the Guarantors.
(ii) Each of the Amendment Documents and the Loan Agreement and
other Loan Documents, as amended hereby, to which the Borrower or a
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
Authority is required to make valid and legally binding the execution,
delivery or performance by each of the Borrower and the Guarantors of
the Amendment Documents or the Loan Agreement or other Loan Documents,
as amended
24
hereby, or the consummation by each of the Borrower and the Guarantors
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 to the interests of the
Banks or the Senior Note Holders) 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 Borrower and the Guarantors 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 Borrower and the Guarantors acknowledges and agrees
that the representations and warranties contained in this Amendment shall
constitute representations and warranties referred to in Article 4 of the
Loan Agreement, a breach of which shall constitute an Event of Default.
37. Effectiveness.
(a) Except as set forth in Section 37(b) below, this Amendment shall become
effective (the "Amendment No. 8 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 on or before September 13, 2002:
(i) This Amendment shall have been duly executed and delivered by each
of the Borrower, the Guarantors, the Agent and the requisite Banks and
shall be in full force and effect.
(ii) The SPV Pledge Agreement shall have been duly executed, in full
force and effect and delivered by the Borrower, together with (A) all trust
certificates or other certificates evidencing the Borrower's beneficial and
ownership interests in the SPV, (B) a dated instruction letter to the
trustee, advising the trustee of the transfer of the trust certificate, (C)
instruments of assignment duly executed in blank, and (D) an undated
consent from the management board of the SPV, consenting to the transfer.
(iii) The Agent shall have received (A) evidence of the effectiveness
of an amendment to the Financial Agreement, in form and substance
satisfactory to the Agent,
25
together with all requisite consents, in form and substance satisfactory to
the Agent, from the Financial Banks, including without limitation consent
for the $5,000,000 capital contribution by the Parent to Freshstart Venture
Capital Corp and (B) evidence of the waiver of any defaults existing
immediately prior to the Amendment No. 8 Effective Date under the Financial
Agreement.
(iv) The Agent shall have received (A) evidence of the effectiveness of
an amendment to the Note Purchase Agreements, in form and substance
satisfactory to the Agent, and (B) evidence of the waiver of any defaults
existing immediately prior to the Amendment No. 8 Effective Date under the
Note Purchase Agreements, each in form and substance satisfactory to the
Agent.
(v) The Agent shall have received copies of all of the documentation
executed and delivered in connection with the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Facility,
together with satisfactory evidence of consummation of the ▇▇▇▇▇▇▇ ▇▇▇▇▇
Facility upon terms and conditions satisfactory to the Agent and the Senior
Note Holders.
(vi) The Agent shall have received a payment of not less than
$99,000,000 from the proceeds of the consummation of the ▇▇▇▇▇▇▇ ▇▇▇▇▇
Facility and cash on hand of the Borrower, which payment (A) when added to
the proceeds to be received on account of the transaction permitted
pursuant to Section 8.11(i)(e)(2) of the Loan Agreement, shall total no
less than $104,000,000 and (B) shall be applied to repay outstanding Term
Loans and the principal amounts outstanding under the Senior Notes, in an
amount equal to one hundred percent (100%) of such payment, with such
payment being allocated among the Banks, the Agent and the Senior Note
Holders on a pro rata basis in accordance with the provisions of Section 5
of the Intercreditor Agreement.
(vii) The Agent shall have received, for the pro rata account of the
Banks, all accrued and unpaid interest on the principal amount of Loans
outstanding immediately prior to the Amendment No. 8 Effective Date at the
rate set forth in Section 2.6 of the Loan Agreement.
(viii) The Agent shall have received, for the pro rata account of each
Bank, amendment fees equal to, in the case of each Bank, 0.25% multiplied
by such Bank's Percentage of the principal amount of Term Loans outstanding
as of the date hereof (after giving effect to the Principal Payment
required on the Amendment No. 8 Effective Date.
(ix) The Agent shall have received evidence satisfactory to the Agent
that the $854,000 intercompany balance between the Borrower and Freshstart
Venture Capital Corp. has been reduced to $0.
(x) All outstanding Swing Lines Loans shall be paid in full.
(xi) 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.
26
(xii) The Agent shall have received a copy of a fully executed letter
between the Borrower and a document imaging company, such letter to be in
form and substance reasonably satisfactory to the Agent, which letter sets
forth rates for such document imaging company to produce compact discs
containing imaged copies of all of the promissory notes, security
agreements and financing statements related to the Bank Loans constituting
Collateral, with such descriptive data items attached to each such
promissory note, security agreement and financing statement as may be
requested by the Agent to permit sorting and indexing.
(xiii) Except as specified in the Documentation Punch List Letter, the
Agent shall have received (A) copies of appropriate assignment documents
for intercompany loan transfers identified by ▇.▇. ▇▇▇▇▇▇ as necessary or
desirable including, without limitation, all promissory notes owned by the
Borrower marked to reflect any chain of assignment thereof to the Borrower
and (B) satisfactory evidence that all necessary steps to rectify any
material deficiencies noted by ▇.▇. ▇▇▇▇▇▇ in its review of the Collateral
have been performed.
(xiv) The Agent shall have received from the Secretary of the Borrower
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 Amendment No. 8.
(xv) The Agent shall have received favorable legal opinions addressed
to the Agent and the Banks, dated as of the date hereof, in form and
substance satisfactory to the Agent, from counsel to the Borrower and the
Guarantors and Delaware counsel to the Borrower, concerning corporate or
other applicable entity authority matters and the enforceability of each of
the Amendment Documents and the SPV Pledge Agreement, and the Loan
Agreement and the other Loan Documents as amended thereby, and concerning
such other matters as the Agent may request.
(xvi) The Agent shall have received an indemnification from the Senior
Note Holders, in form and substance satisfactory to the Agent, relating to
any payment order accepted by the Agent pursuant to Section 35 hereof.
(xvii) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP shall have received payment of all fees
and expenses outstanding as of the date hereof, including, but not limited
to, fees and expenses occurred in connection with the preparation of this
Amendment and ancillary documentation and all fees and expenses incurred in
connection with the employment of Argus Management Corporation.
(xviii) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP shall have received payment of a retainer
in the amount of $100,000, which amount shall include a retainer on account
of the continued employment of Argus Management Corporation.
(xix) 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.
27
(b) The amendments set forth in (i) Section 8.3(f)(v) (sale of up to
$10,000,000 of Commercial Loans to the Parent in exchange for Medallion Loans of
equivalent value), (ii) Section 8.11(i)(e)(2) (transfer of $4,100,000 to the
Parent as reimbursement for allocable overhead and expenses) and (iii) Section
8.11(i)(e)(6)(x) (repurchase of participations in Medallion Loans from
Freshstart Venture Capital Corp.) shall become effective as of the date hereof.
In the event that either of the transactions described in Sections 37(b)(i) and
(ii) above occur on or after the date hereof and prior to the Amendment No. 8
Effective Date, the requirement that no Default or Event of Default shall have
occurred or be continuing, or would result therefrom, shall not apply thereto.
(c) The Agent agrees to provide notice to the Borrower of the occurrence
and date of the Amendment No. 8 Effective Date promptly upon satisfaction of
each of the foregoing conditions. Such notice shall be conclusive and binding on
all parties hereto.
38. Release. In order to induce the Agent and the Banks to enter into this
Amendment, the Borrower, on behalf of itself and its Subsidiaries, acknowledges
and agrees that: (a) none of the Borrower nor such Subsidiaries has any claim or
cause of action against the Agent, the Swing Line Lender, the Collateral Agent
or any Bank (or any of their respective directors, officers, employees or
agents); (b) none of the Borrower nor such Subsidiaries has any offset rights,
counterclaims or defenses of any kind against any of its respective obligations,
indebtedness or liabilities to the Agent, the Swing Line Lender, the Collateral
Agent or any Bank; and (c) each of the Agent, the Swing Line Lender, the
Collateral Agent and the Banks has heretofore properly performed and satisfied
in a timely manner all of its obligations to the Borrower and each such
Subsidiary. The Borrower, 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 Swing Line Lender's, the Collateral Agent's or the Banks' rights,
interests, contracts, collateral security or remedies. Therefore, the Borrower,
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 Swing Line Lender, the Collateral
Agent or any Bank to the Borrower or any of its Subsidiaries, except the
obligations to be performed by the Agent, the Swing Line Lender, the Collateral
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 the
Borrower or any such Subsidiary might otherwise have against the Agent, the
Swing Line Lender, the Collateral 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.
39. Miscellaneous Provisions.
(a) The Borrower 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
the Borrower hereby affirms its
28
absolute and unconditional promise to pay to the Banks and the Agent the Term
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, the Borrower 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]
29
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 FUNDING CORP.
By:/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Chief Executive Officer
By:/s/ ▇▇▇▇▇ ▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
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/ ▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇
Title: Senior Vice President
THE BANK OF NEW YORK, as Documentation
Agent and as one of the Banks
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
▇▇▇▇▇▇ TRUST AND SAVINGS BANK
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: V.P.
BANK OF TOKYO-MITSUBISHI TRUST COMPANY
By:/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Name: ▇.▇. ▇▇▇▇▇
Title: Vice President
JPMORGAN CHASE BANK (f/k/a The Chase
Manhattan Bank)
By:/s/ ▇▇▇▇▇▇▇ ▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Vice President
ISRAEL DISCOUNT BANK OF NEW YORK
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: First Vice President
By:/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice President
CITIBANK, N.A. (f/k/a European American
Bank)
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Sr. Vice President
BANK LEUMI USA
By:/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇ ▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
Title: FVP VP
HSBC BANK USA
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Each of the undersigned hereby reaffirms and ratifies all of its agreements
and obligations under the Loan Documents which such Person is a party to, and
confirms that it consents to the amendment of the Loan Agreement as set forth
above.
MEDALLION TAXI MEDIA, INC.
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Chief Executive Officer
By:/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: President
MEDALLION FINANCIAL CORP.
By:/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Chief Executive Officer
By:/s/ ▇▇▇▇▇ ▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Chief Financial Officer and
Executive Vice President
MEDALLION FUNDING CHICAGO CORP.
By:/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Chief Executive Officer
By:/s/ ▇▇▇▇▇ ▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Chief Financial Officer
