EXHIBIT 10.63
AMENDMENT NO. 1 TO AMENDED AND RESTATED SECURITY AGREEMENT
AGREEMENT, made as of March 12, 1998, by and between MEDALLION FUNDING
CORP., a New York corporation, (the "Borrower"); and FLEET BANK, N.A., a
national banking association (the "Agent"), as Agent for the Banks that from
time to time are parties to the Loan Agreement referred to in the Amended and
Restated Security Agreement hereinafter described and for the Holders of
Commercial Paper therein referred to.
W I T N E S S E T H:
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WHEREAS:
(A) The Borrower and the Agent are parties to an Amended and Restated
Security Agreement dated as of December 24, 1997 (the "Security Agreement");
(B) The Borrower and the Bank wish to amend the Security Agreement as set
forth herein (this Agreement is hereinafter referred to as "Amendment No. 1");
(C) Any capitalized terms not defined herein shall have the meanings
ascribed thereto in the Security Agreement;
NOW, THEREFORE, the parties hereto hereby agree as follows:
Article 1. Amendments to the Security Agreement.
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This Amendment shall be deemed to be an amendment to the Security
Agreement and shall not be construed in any way as a replacement or substitution
therefor. All of the terms and provisions of this Amendment are hereby
incorporated by reference into the Security Agreement as if such terms and
provisions were set forth in full therein.
(a) The Recitals Section of the Security Agreement which appears at
the beginning thereof is hereby amended to Amendment No. 1, dated as of March
12, 1998, to Amended and Restated Security Agreement between Medallion Funding
Corp. and Fleet Bank, N.A.
the extent that the seventh "WHEREAS" clause is amended to read in its entirety
as follows:
"WHEREAS, the Banks are willing to consent to the grant of the
security interest in the Collateral to the Agent for the benefit of the CP
Holders and to the grant of the security interest in the SBA Collateral to
the Agent for the benefit of the SBA pursuant to the SBA Security
Agreement, provided that the Security Agreement is amended in accordance
herewith and provided, further that in the case of the CP Holders such
security interest granted to the Agent for their benefit shall not be
effective unless and until (i) the Agent has been appointed the Agent of
the CP Holders for purposes of this Agreement with duties consistent with
those necessary for the Agent (in its opinion) to perform its duties under
this Agreement, (ii) the CP Holders shall have been deemed to have
consented to the Agent's entering into the Intercreditor Agreement on their
behalf and (iii) the CP Holders shall have been deemed to agree that the
Agent is not liable to the CP Holders other then for gross negligence or
willful misconduct."
(b) Section 1.1 of the Security Agreement is hereby amended by
deleting the term "Percentage of the Obligations" in its entirety.
(c) Section 5.2 of the Security Agreement is hereby amended to the
extent that subsection 5.2(a) and the first paragraph of subsection 5.2(d) are
each hereby amended to read in their entirety as follows:
"(a) Upon the occurrence of any Event of Default, the Agent shall
have, in addition to any other rights and remedies contained in this
Agreement or in any of the Other Agreements, all the rights and remedies of
a secured party under the UCC, and all other rights and remedies provided
by law, all of which shall be cumulative to the extent permitted by law.
Upon the occurrence of any Event of Default and at any time thereafter if
such or any other default shall then be continuing, the Agent shall have
the right without
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further notice to Borrower to and shall, (i) upon the direction of the
Required Banks or (ii) 10 Business Days after written notice from the
Paying Agent that the CP Debt was not paid when due (and to the Agent's
actual knowledge such CP Debt then remains unpaid), appropriate, take
possession and control of, set off and apply to the payment of any or all
of the Obligations and/or the CP Debt, any or all Collateral, subject to
and in the manner set forth in Section 5.3 and in the Intercreditor
Agreement, to enforce payment in connection with the Loans or any other
Collateral to settle, compromise or release, in whole or in part, any
amounts owing on the Collateral, to prosecute any action, suit or
proceeding with respect to the Collateral, to extend the time of payment of
any and all Collateral, to make allowances and adjustment with respect
thereto, to issue credits in the name of Borrower or the Agent, to sell,
assign and deliver the Collateral (or any part thereof), at public or
private sale, at broker's board, for cash, upon credit or otherwise, at the
Agent's sole option and discretion and the Agent and any Bank or other
Person interested in the Obligations may bid or become purchaser at any
such sale, if public, free from any right of redemption, which is hereby
expressly waived. Borrower agrees that the giving of ten days notice by the
Agent, sent by certified mail, return receipt requested postage prepaid, to
the address set forth below, designating the place and time of any public
sale or of the time after which any private sale or other intended
disposition of the Collateral is to be made, shall be deemed to be
reasonable notice thereof and Borrower waives any other notice with respect
thereto. The net cash proceeds resulting from the exercise of any of the
foregoing rights or remedies shall be applied by the Agent in accordance
with Section 5.3 hereof, and the Borrower shall remain liable to the Agent,
the Banks and the CP Holders for any deficiency, together with interest
thereon at the rate provided in the Loan Agreement with respect to the
Obligations and in the Commercial Paper with respect to the CP Debt, and
the cost and expenses of collection of such deficiency, including (to the
extent permitted by law), without
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limitation, reasonable attorneys' fees actually incurred, expenses and
disbursements.
(d) Upon the occurrence of an Event of Default, the Agent shall have
the right to and shall (i) upon the direction of the Required Banks, or
(ii) 10 Business Days after written notice from the Paying Agent that the
CP Debt was not paid when due (and to the Agent's actual knowledge such CP
Debt then remains unpaid) require Borrower to establish and maintain a
lockbox service (which may be the Collateral Account) with such bank or
banks as may be acceptable to the Agent. In the event Borrower (or any of
its Affiliates, subsidiaries, stockholders, directors, officers, employees
or agents) shall receive any monies, checks, notes, drafts or any other
items of payment relating to, or proceeds of, the Loan, Borrower agrees
with the Agent as follows:"
Article 2. Representations and Warranties.
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The Borrower hereby represents and warrants to the Bank that, other than
with respect to the reporting requirements set forth in Section 6.1 of the Loan
Agreement which are incorrect solely by reason of the Borrower's fiscal year end
date being December 31 and not March 31 as referred to therein:
(a) Each and Every of the representations and warranties set forth in
Article IV of the Security Agreement is true as of the date hereof with respect
to the Borrower and with the same effect as though made on the date hereof, and
is hereby incorporated herein in full by reference as if fully restated herein
in its entirety.
(b) No Default or Event of Default now exists.
(c) This Amendment No. 1 and any other documents, agreements or
instruments now or hereafter executed and delivered to the Agent by the Borrower
in connection herewith constitute (or shall, when delivered, constitute) valid
and
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legally binding obligations of Borrower, each of which is and shall be
enforceable against Borrower in accordance with their respective terms.
(d) No consent, waiver or approval of any entity is or will be
required in connection with the execution, delivery, performance, validity or
enforcement or priority of this Amendment No. 1 or any other agreements,
instruments or documents to be executed and/or delivered in connection herewith
or pursuant hereto.
Article 5. Miscellaneous. Except as specifically amended herein, the
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Security Agreement shall remain in full force and effect in accordance with its
terms.
IN WITNESS WHEREOF, each of the undersigned has executed or caused to be
duly executed this Amendment No. 1 as of the date first above written.
MEDALLION FUNDING CORP.
By: /s/ Xxxxxx X. Xxxxx
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FLEET BANK, N.A., as Agent
By: /s/ Xxxxxx Xxx
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SBA COLLATERAL - DESIGNATED COMMERCIAL LOANS
The following loans are hereby designated as SBA Collateral as of
__________, 1997:
Loan Number Borrower Outstanding Balance
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$________________
Total Outstanding Balance $________________
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