EXHIBIT 10.62
First Amendment, dated as of February 5, 1998, to Amended and Restated Loan
Agreement by and among Medallion Funding Corp., the leaders party thereto, Fleet
Bank, National Association as Swing Line Lender, Administrative Agent and
Collateral Agent and The Bank of New York as Documentation Agent with Fleet
Bank, National Association as Arranger.
AMENDMENT NUMBER ONE TO LOAN AGREEMENT
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First Amendment entered into as of February 5, 1998, among MEDALLION
FUNDING CORP., a New York corporation ("Borrower"), the banks that are
signatories hereto, collectively, the "Banks" and individually, a "Bank"), FLEET
BANK, NATIONAL ASSOCIATION , as a Bank ("Fleet"), as swing line lender (the
"Swing Line Lender"), as Arranger and as Administrative Agent and Collateral
Agent for the Banks (including any successor, the "Agent") and The Bank of New
York, as a Bank ("BONY") and as Documentation Agent for the Banks (including any
successor, the "Documentation Agent").
WHEREAS, the Borrower, the Banks, the Agent and the Documentation Agent are
parties to an Amended and Restated Loan Agreement dated as of December 24, 1997
(the "Agreement"); and
WHEREAS, the Borrower has requested that the Banks and the Agent amend, and
the Banks and the Agent have agreed to amend, certain provisions of the
Agreement.
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. The Agreement is hereby amended as follows:
(a) The definition of "Commercial Loans" contained in Section 1.1 of
the Agreement is amended to read in its entirety as follows:
"Commercial Loans" shall mean Loans that are secured in whole or in
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part by Real Property, Inventory, Equipment and/or Receivables and that are
not Medallion Loans.
(b) The definition of "Eligible Commercial Loans" contained in Section
1.1 of the Agreement is amended to read in its entirety as follows:
"Eligible Commercial Loan" shall mean any Commercial Loan that
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satisfies the Eligibility Requirements and (a) that is secured by Eligible
Real Estate, Eligible Equipment, Eligible Inventory or Eligible Receivables
and (b) that is made to a Person that is an ongoing business concern.
(c) New definitions of "Eligible Equipment" and "Eligible Inventory"
shall be added to Section 1.1 of the Agreement immediately after the definition
of "Eligible Commercial Loan" to read in their entirety as follows:
"Eligible Equipment" shall mean Equipment in which a first priority
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perfected security interest has been obtained by Borrower to secure the
obligations of such Person under a Loan by Borrower to such Person, or in
the case of such beneficial owner, to secure a guaranty which shall have
been made by such beneficial owner guaranteeing the Loan, and the same has
been assigned to the Agent, for the benefit of the Banks, pursuant to the
Security Agreement.
"Eligible Inventory" shall mean Inventory in which a first priority
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perfected security interest has been obtained by Borrower to secure the
obligations of such Person under a Loan by Borrower to such Person, or in
the case of such beneficial owner, to secure a guaranty which shall have
been made by such beneficial owner guaranteeing the Loan, and the same has
been assigned to the Agent, for the benefit of the Banks, pursuant to the
Security Agreement.
(d) A new definition of "Eligible Receivables" shall be added to
Section 1.1 of the Agreement immediately after the definition of "Eligible Real
Estate" to read in its entirety as follows:
"Eligible Receivables" shall mean Receivables (i) that are reasonably
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determined in good faith to be eligible by Borrower, (ii) that arise in the
ordinary course of a Person's business, (iii) that are net of credits,
rebates, offsets, holdbacks or adjustments and
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(iv) in which a first priority perfected security interest has been
obtained by Borrower to secure the obligations of such Person under a Loan
by Borrower to such Person, or in the case of such beneficial owner, to
secure a guaranty which shall have been made by such beneficial owner
guaranteeing the Loan, and the same has been assigned to the Agent, for the
benefit of the Banks, pursuant to the Security Agreement.
(e) A new definition of "Inventory shall be added to Section 1.1 of
the Agreement immediately after the definition of "Interest Period" to read in
its entirety as follows:
"Inventory" shall mean, with respect to any Person, all goods held by
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such Person for sale or lease by such Person, or to be furnished under
contracts of service, in each case in the ordinary course of such Person's
business.
(f) The definition of "Loans" contained in Section 1.1 of the
Agreement is amended to read in its entirety as follows:
"Loan" shall mean any loan or advance made in the ordinary course of
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business by Borrower (which for purposes of this definition shall include
those acquired pursuant to a Portfolio Purchase that is permitted pursuant
to the terms of this Agreement) to or for the account of any client or
customer of Borrower, which loan, advance or extension of credit is
permitted pursuant to the terms of this Agreement. Any loan, advance or
extension of credit made at a different point in time than another loan,
advance or extension of credit shall be deemed to be separate and distinct
Loans.
(g) A new definition of "Receivables" shall be added to Section 1.1 of
the Agreement immediately after the definition of "Real Property" to read in its
entirety as follows:
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"Receivables" shall mean, with respect to any Person, all present and
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future rights to payment for goods sold or leased or for services rendered
by such Person whether or not evidenced by an instrument or chattel paper.
(h) The definition of "Investment" contained in Section 1.1 of the
Agreement is amended to read in its entirety as follows:
"Investment" in any Person shall mean any loan, advance, or extension
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of credit to or for the account of; any guaranty, endorsement or other
direct or indirect contingent liability in connection with the obligations,
Capital Stock or dividends of; any ownership, purchase or acquisition of
any assets, business, Capital Stock, obligations or securities of; or any
other interest in or capital contribution to; such Person, but shall not
include (a) any Loan, (b) any Investment permitted by Section 8.14 hereof
and (c) any Portfolio Purchase.
(i) The definition of "Portfolio Purchase" contained in Section 1.1 of
the Agreement is amended to read in its entirety as follows:
"Portfolio Purchase" shall mean any purchase or acquisition, whether
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for cash, for stock, pursuant to financing or otherwise, of any assets,
business, Capital Stock, obligations or securities of, any Person; or other
interest in or capital contribution to, any Person that results in, or
would result in (after taking into account the applicable Portfolio
Purchase), the Borrower having any additional Loans.
(j) A new definition of "Super-majority Banks" shall be added to
Section 1.1 of the Agreement immediately after the definition of "Subsidiary" to
read in its entirety as follows:
"Super-majority Banks" shall mean, as of any date of determination,
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the Agent and such Bank or Banks as have Revolving Credit Commitments or
Term Loans outstanding
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equal to or in excess of 75% of the sum of the Aggregate Revolving Credit
Commitment plus all Term Loans then outstanding.
(k) Section 5.2(c) is amended to read in its entirety as follows:
(c) no event, action or condition has occurred that would
adversely affect the validity or enforceability of, or the authority of the
Borrower to perform its obligations under, any of the Loan Documents to
which it is a party.
(l) Section 6.15 is amended to read in its entirety as follows:
SECTION 6.15. Required Percentage of Medallion Loans.
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Borrower shall ensure that, for so long as any amounts are owed by it
to the Banks, the Swing Line Lender or the Agent under the Loan Documents,
at all times at least 65% of the aggregate principal amount of all Loans
then outstanding shall be Eligible Medallion Loans to Persons who have
obtained such Loans for the purpose of acquiring Medallion Rights for use
primarily in New York City. For purposes of this Section 6.15, Loans shall
include all Loans acquired in connection with Portfolio Purchases permitted
pursuant to this Agreement.
(m) Section 8.3(a) is amended to read in its entirety as follows:
(a) Make, or obligate itself to make, any loan or advance or
Investment that is not a Domestic Loan or a Domestic Investment.
(n) A new Section 8.16 is added immediately after Section 8.15 to read
in its entirety as follows:
SECTION 8.16. Portfolio Purchases.
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Make, or obligate itself to make, any Portfolio Purchase unless:
(i) no Default or Event of Default exists or would exist after giving
effect to the applicable Portfolio Purchase;
(ii) the Borrower has provided the Agent and each of the Banks with a
pro forma certificate of the chief financial officer of the Borrower
evidencing the Borrower's computation of compliance with each of the
financial ratios, tests or covenants specified in Article VII, 6.15, 8.2,
8.3, 8.4 and 8.14 hereof after giving effect to the applicable Portfolio
Purchase;
(iii) the applicable Portfolio Purchase has the approval of the
seller;
(iv) (1) the seller of the loans constituting such Portfolio Purchase
is in the business of making loans secured by New York City taxicab
medallions and the loans to be acquired in connection therewith are secured
by New York City taxicab medallions, or (2) the Portfolio Purchase is being
made from a Person in any other line of business; provided, that, to the
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extent the Portfolio Purchase does not entirely involve loans secured by
New York City taxicab medallions, in addition to the foregoing, each such
Portfolio Purchase shall be subject to the following additional
limitations:
(A) if the consideration for such Portfolio Purchase shall be
Capital Stock of the Borrower, the fair market value of such Capital
Stock, less the aggregate outstanding principal balances of all loans
included in such Portfolio Purchase that are secured by New York City
taxicab medallions, if any, shall not exceed $50,000,000 with respect
to any one such Portfolio Purchase or $100,000,000 in any fiscal year
with respect to all such Portfolio Purchases in the aggregate in such
fiscal year; and
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(B) if the consideration for such Portfolio Purchase shall be
other than Capital Stock of the Borrower, the consideration therefor,
less the aggregate outstanding principal balances of all loans
included in such Portfolio Purchase that are secured by New York City
taxicab medallions, if any, shall not exceed $25,000,000 with respect
to any one such Portfolio Purchase or $50,000,000 in any fiscal year
with respect to all such Portfolio Purchases in the aggregate in such
fiscal year.
(o) Section 9.1(e) is amended to read in its entirety as follows:
(e) if the Borrower shall (i) default in the payment of any
principal, interest or premium with respect to any CP Debt (provided,
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however, that without prejudice to the right to declare any other Default
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or Event of Default, as to any such default, if on the date of such default
the Borrower delivers to the Agent a Loan Request (A) for a loan in an
amount at least equal to the amount of the defaulted payment, (B)
requesting that such loan be made on the earliest date that a loan may be
made under this Agreement and (C) containing a certification by the
Borrower that the proceeds of the loan(s) so requested will be used
immediately upon receipt to refinance the CP Debt in default, then such
default (and only such default) shall not constitute a Default or Event of
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Default hereunder as long as the proceeds are used by the Borrower as
aforesaid, and as long as no holder of CP Debt has commenced legal
proceedings to enforce their remedies), or (ii) default in the performance
or observance of any other term, condition or agreement contained in any
such obligation or in any agreement relating thereto if the effect thereof
is to cause, or permit the holder or holders of such obligation (or the
Paying Agent or any other Person on behalf of such holder or holders) to
cause, such obligation to become due prior to its stated maturity;
(p) Section 9.1(f) is amended to read in its entirety as follows:
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(f) if Borrower shall (i) default in the payment of any
principal, interest or premium with respect to any Indebtedness for
borrowed money or any obligation which is the substantive equivalent
thereof in excess of $50,000, other than Indebtedness under the Revolving
Credit Loans, the Swing Line Loans, the Term Loans, or the CP Debt, and
such default shall continue for more than the period of grace, if any,
therein specified or (ii) default in the performance or observance of any
other term, condition or agreement contained in any such obligation or in
any agreement relating thereto if the effect thereof is to cause, or permit
the holder or holders of such obligation (or a trustee on behalf of such
holder or holders) to cause, such obligation to become due prior to its
stated maturity;
(q) Section 9.1(l) is amended to read in its entirety as follows:
(1) if there shall occur any change in the Collateral or in the
business of Borrower, or its operation, conduct or prospects thereof, that
individually or in the aggregate, could have or result in a Material
Adverse Effect and the Agent has been directed to declare such Event of
Default by the Super-majority Banks as set forth below in this Section 9.1;
or
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(r) The paragraph beginning with the word "then" immediately following
Section 9.1(m) is amended to read in its entirety as follows:
then, (A) in the case of an Event of Default described in clause (h) or (i)
above, the Aggregate Revolving Credit Commitment, the Swing Line
Commitment, and each Term Loan Commitment shall automatically terminate and
(i) the unpaid balance of the Revolving Credit Notes, the Swing Line Note,
the Term Notes and all interest accrued thereon, and (ii) any accrued and
unpaid fees and expenses due and payable hereunder or under any other Loan
Document shall automatically (without any action on the part of the Agent
or the Banks and without presentment, demand, protest or notice of any
kind, all of which are hereby expressly waived) forthwith become due and
payable, and, (B) in the case of an Event of Default described in clause
(l) above, at any time thereafter, if such Event of Default shall then be
continuing the following action may be taken: The Agent, upon the direction
of the Super-majority Banks, shall, declare (i) the Aggregate Revolving
Credit Commitment, the Swing Line Commitment and all Term Loan Commitments
to be terminated, whereupon the obligation of the Agent the Banks and the
Swing Line Lender to make further Revolving Credit Loans or Term Loans or
Swing Line Loans, as the case may be, hereunder shall terminate immediately
and (ii) the Revolving Credit Notes, Swing Line Note and Term Notes to be
due and payable, whereupon the maturity of the then unpaid balance of the
Revolving Credit Notes, Swing Line Note and Term Notes shall be accelerated
and the same, and all interest accrued thereon and any accrued and unpaid
fees and expenses due and payable hereunder, shall forthwith become due and
payable without presentment, demand, protest or notice of any kind, all of
which are hereby expressly waived, anything contained herein or in
Revolving Credit Notes, Swing Line Note or Term Notes to the contrary
notwithstanding, and, (C) in the case of any other Event of Default, then
and in any such event, and at any time thereafter, if such or any other
Event of Default shall then be continuing the
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following action may be taken: the Agent may (but shall not be obligated
to), and upon the direction of the Required Banks shall, declare (i) the
Aggregate Revolving Credit Commitment, the Swing Line Commitment and all
Term Loan Commitments to be terminated, whereupon the obligation of the
Agent the Banks and the Swing Line Lender to make further Revolving Credit
Loans or Term Loans or Swing Line Loans, as the case may be, hereunder
shall terminate immediately and (ii) the Revolving Credit Notes, Swing Line
Note and Term Notes to be due and payable, whereupon the maturity of the
then unpaid balance of the Revolving Credit Notes, Swing Line Note and Term
Notes shall be accelerated and the same, and all
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interest accrued thereon and any accrued and unpaid fees and expenses due
and payable hereunder, shall forthwith become due and payable without
presentment, demand, protest or notice of any kind, all of which are hereby
expressly waived, anything contained herein or in Revolving Credit Notes,
Swing Line Note or Term Notes to the contrary notwithstanding.
2. The Borrower hereby represents and warrants to the Agent and each Bank
that:
(a) Each and every of the representations and warranties set forth in
the Agreement is true as of the date hereof 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 and no event or condition which,
with the giving of notice or lapse of time or both, would constitute such a
Default or Event of Default, now exists or would exist.
3. All capitalized terms used herein, unless otherwise defined herein,
have the same meanings provided therefor in the Agreement.
4. The amendments set forth herein are limited precisely as written and
shall not be deemed to (a) be a consent to or a waiver of any other term or
condition of the Agreement or any of the documents referred to therein or (b)
prejudice any right or rights which the Agent or any Bank may now have or may
have in the future under or in connection with the Agreement or any documents
referred to therein. Whenever the Agreement is referred to in the Agreement or
any of the instruments, agreements or other documents or papers executed and
delivered in connection therewith, it shall be deemed to mean the Agreement as
modified by this First Amendment.
5. This Amendment Number One shall be effective as of the date first
above written provided that the Borrower and
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the Agent shall have received counterparts of this Amendment Number One duly
signed by the Borrower and each of the Banks. Promptly after the effective date
of this Amendment Number One, the Agent shall deliver fully executed
counterparts of this Amendment to each of the Banks, and the Agreement shall
consist of the Agreement as amended by this Amendment Number One.
[BALANCE OF PAGE INTENTIONALLY LEFT BLANK. SIGNATURES
CONTINUED ON THE FOLLOWING PAGES BEGINNING WITH PAGE 7]
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IN WITNESS WHEREOF, Borrower, the Agent, the Documentation Agent, the Swing
Line Lender and the Banks have caused this Agreement to be duly executed by
their respective officers hereunto duly authorized as of the day and year first
above written.
MEDALLION FUNDING CORP.
By: /s/ Xxxxx Xxxxxxxx
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Name: Xxxxx Xxxxxxxx
Title: Chief Executive Officer
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Treasurer and Chief
Financial Officer
FLEET BANK, NATIONAL ASSOCIATION, as
Agent, as Swing Line Lender and as one of the Banks
By: /s/ Xxxxxx Xxx
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Title: Vice President
Payment Office:
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
THE BANK OF NEW YORK,
as Documentation Agent
and as one of the Banks
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By: /s/ Xxxxx Xxxxxxxxxxx
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Title: Vice President
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BANKBOSTON, N.A.
By: /s/ Xxxx Xxxxxx
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Title: Director
XXXXXX TRUST AND SAVINGS BANK
By: /s/ Xxxxxxx Xxxxxxxx
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Title: Vice President
BANK TOKYO - MITSUBISHI TRUST COMPANY
By: /s/ Xxxxx Xxxxx
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Title: Vice President
ISRAEL DISCOUNT BANK OF NEW YORK
By: /s/ Xxxxx Xxxxxxxx
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Title: Senior Vice President
By: /s/ Xxxxxxx XxXxx
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Title: Vice President
EUROPEAN AMERICAN BANK
By: /s/ Xxxxxx Xxxxxxxxx
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Title: Vice President
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BANK LEUMI USA
By: /s/ Xxxx Xxxx
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Title: Vice President
By: /s/ Xxxx Xxxxxxxxxxx
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Title: Senior Vice President
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THE CHASE MANHATTAN BANK
By: /s/ Xxxxxxx Xxxx
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Title: Vice President
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