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EXHIBIT 10.8
Guaranty
Dated as of April 30, 2001
by
Medallion Taxi Media, Inc.
in favor of
the holders from time to time of those certain
$22,500,000 7.20% Senior Secured Notes, Series A
due June 1, 2004
and
$22,500,000 7.20% Senior Secured Notes, Series B
due September 1, 2004
of Medallion Funding Corp.
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Table of Contents
Section Heading Page
Section 1. Definitions.......................................................................... 1
Section 2. Guaranty of Payment and Performance.................................................. 2
Section 3. Guarantor's Agreement to Pay Enforcement Costs, etc.................................. 2
Section 4. Waivers by Guarantor; Bank's Freedom to Act.......................................... 3
Section 5. Unenforceability of Obligations Against Borrower..................................... 3
Section 6. Subrogation; Subordination........................................................... 4
Section 7. Setoff............................................................................... 4
Section 8. Further Assurances................................................................... 4
Section 9. Release.............................................................................. 5
Section 10. Termination; Reinstatement........................................................... 5
Section 11. Successors and Assigns............................................................... 5
Section 12. Amendments and Waivers............................................................... 5
Section 13. Notices.............................................................................. 6
Section 14. Governing Law; Consent to Jurisdiction............................................... 6
Section 15. Waiver of Jury Trial................................................................. 6
Section 16. Miscellaneous........................................................................ 6
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Guaranty, dated as of April 30, 2001 ("Guaranty"), by Medallion Taxi Media,
Inc., a New York corporation (the "Guarantor") in favor of (i) the holders from
time to time (herein, the "Noteholders") of those certain $22,500,000 aggregate
principal amount 7.20% Senior Secured Notes, Series A due June 1, 2004 (the
"Series A Notes") and $22,500,000 aggregate principal amount 7.20% Senior
Secured Notes, Series B Notes due September 1, 2004 (the "Series B Notes" and
together with the Series A Notes, the "Notes") issued pursuant to those certain
Note Purchase Agreements each dated as of June 1, 1999 (as amended pursuant to
that certain First Amendment Agreement dated as of March 30, 2001 (the "First
Amendment") and as further amended and in effect from time to time, the "Note
Agreements"), between Medallion Funding Corp., a New York corporation
("Borrower") and each of the purchasers set forth in Schedule A thereto.
Whereas, the Borrower and the Guarantor are members of a group of related
corporations, the success of any one of which is dependent in part on the
success of the other members of such group;
Whereas, the Guarantor has received and expects to continue to receive
substantial direct and indirect benefits from the extensions of credit to the
Borrower by the Noteholders pursuant to the Note Agreements (which benefits are
hereby acknowledged);
Whereas, it is a condition to the effectiveness of the First Amendment that
the Guarantor execute and deliver to the Noteholders, for the benefit of the
Noteholders, a guaranty substantially in the form hereof; and
Whereas, the Guarantor wishes to guaranty the Borrower's obligations to the
Noteholders under or in respect of the Note Agreements as provided herein;
Now, Therefore, the Guarantor hereby agrees with the Noteholders as
follows:
Section 1. Definitions. All capitalized terms used herein without
definition shall have the respective meanings provided therefor in the Note
Agreements.
"Obligations" means any and all present and future indebtedness and all
performance obligations which may at any time be owing by the Borrower to the
Collateral Agent or any Noteholder, however arising, under the Note Agreements,
this Guaranty or any other Note Document between the Collateral Agent and/or any
Noteholder and the Borrower in connection with any of the foregoing or in
connection with any Note Document, whether now in existence or incurred
hereafter, whether incurred directly or incurred by others and assumed by the
Borrower, whether secured by mortgage, pledge, or lien upon or security interest
in any property of the Borrower, or any other person, whether such indebtedness
or other obligation is absolute or contingent, joint or several, matured or
unmatured, direct or indirect, and whether the Borrower is liable for such
indebtedness or other obligation as principal, surety, endorser, guarantor, or
otherwise. Without limiting the generality of the foregoing, the Obligations
shall include the liability of the Borrower to any Noteholder for all balances
owing to any Noteholder under the Note Agreements or under any other agreement
or arrangement now or hereafter
entered into between the Borrower and the Collateral Agent or any Noteholder in
connection therewith, and, solely in connection with this Guaranty or the Note
Agreements, the following: (i) indebtedness owing by the Borrower to the
Collateral Agent or any Noteholder, (ii) the liability of the Borrower to the
Collateral Agent or any Noteholder as maker or endorser of any promissory note
or other instrument for the payment of money, and (iii) the liability of the
Borrower to the Collateral Agent or any Noteholder under any instrument of
guaranty of indemnity, or arising under any guarantee, endorsement, or
undertaking which the Collateral Agent or any Noteholder may make or issue to
others for the account of the Borrower. The Obligations shall also include
interest, premium (if any), Make-Whole Amount (if any), commissions, financing
and service charges, and expenses and fees, including but not limited to the
costs and expenses of collection of the Obligations (including the fees and
disbursements of accountants), the costs and expenses of the Collateral Agent
and the costs and expenses of filing, perfecting, preserving, retaking, holding,
and preparing any of the Collateral for sale chargeable to the Borrower and due
from the Borrower under this Guaranty, the Note Agreements or under any other
agreement or arrangement which may be now or hereafter entered into between the
Borrower and the Collateral Agent or the Noteholders.
Section 2. Guaranty of Payment and Performance. The Guarantor hereby
guarantees to the Noteholders the full and punctual payment when due (whether at
stated maturity, by required prepayment, by acceleration or otherwise), as well
as the performance, of all of the Obligations including all such which would
become due but for the operation of the automatic stay pursuant to (S)362(a) of
the Federal Bankruptcy Code and the operation of (S)(S)502(b) and 506(b) of the
Federal Bankruptcy Code. This Guaranty is an absolute, unconditional and
continuing guaranty of the full and punctual payment and performance of all of
the Obligations and not of their collectibility only and is in no way
conditioned upon any requirement that any Noteholder first attempt to collect
any of the Obligations from the Borrower or resort to any collateral security or
other means of obtaining payment. Should the Borrower default in the payment or
performance of any of the Obligations, the obligations of the Guarantor
hereunder with respect to such Obligations in default shall, upon demand by the
Required Holders, become immediately due and payable to the Noteholders, without
demand or notice of any nature, all of which are expressly waived by the
Guarantor. Payments by the Guarantor hereunder may be required by the
Noteholders on any number of occasions. All payments by the Guarantor hereunder
shall be made to the Noteholders, in the manner and at the place of payment
specified therefor in the Note Agreements, for the account of the Noteholders.
Section 3. Guarantor's Agreement to Pay Enforcement Costs, etc. The
Guarantor further agrees, as the principal obligor and not as a guarantor only,
to pay to the Noteholders, on demand, all costs and expenses (including court
costs and legal expenses) incurred or expended by any Noteholder in connection
with the Obligations, this Guaranty and the enforcement hereof and thereof,
together with interest on amounts recoverable under this (S)3 from the time when
such amounts become due until payment, whether before or after judgment, at the
rate of interest for overdue principal set forth in the Note Agreements,
provided that if such interest exceeds the maximum amount permitted to be paid
under applicable law, then such interest shall be reduced to such maximum
permitted amount.
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Section 4. Waivers by Guarantor; Bank's Freedom to Act. The Guarantor
agrees that the Obligations will be paid and performed strictly in accordance
with their respective terms, regardless of any law, regulation or order now or
hereafter in effect in any jurisdiction affecting any of such terms or the
rights of any Noteholder with respect thereto. The Guarantor waives promptness,
diligence, presentment, demand, protest, notice of acceptance, notice of any
Obligations incurred and all other notices of any kind, all defenses which may
be available by virtue of any valuation, stay, moratorium law or other similar
law now or hereafter in effect, any right to require the marshalling of assets
of the Borrower or any other entity or other person primarily or secondarily
liable with respect to any of the Obligations, and all suretyship defenses
generally. Without limiting the generality of the foregoing, the Guarantor
agrees to the provisions of any instrument evidencing, securing or otherwise
executed in connection with any Obligation and agrees that the obligations of
the Guarantor hereunder shall not be released or discharged, in whole or in
part, or otherwise affected by (i) the failure of any Noteholder to assert any
claim or demand or to enforce any right or remedy against the Borrower or any
other entity or other person primarily or secondarily liable with respect to any
of the Obligations; (ii) any extensions, compromise, refinancing, consolidation
or renewals of any Obligation; (iii) any change in the time, place or manner of
payment of any of the Obligations or any rescissions, waivers, compromise,
refinancing, consolidation or other amendments or modifications of any of the
terms or provisions of the Note Agreements, the other Note Documents or any
other agreement evidencing, securing or otherwise executed in connection with
any of the Obligations, (iv) the addition, substitution or release of any entity
or other person primarily or secondarily liable for any Obligation; (v) the
adequacy of any rights which any Noteholder may have against any collateral
security or other means of obtaining repayment of any of the Obligations; (vi)
the impairment of any collateral securing any of the Obligations, including
without limitation the failure to perfect or preserve any rights which any
Noteholder might have in such collateral security or the substitution, exchange,
surrender, release, loss or destruction of any such collateral security; or
(vii) any other act or omission which might in any manner or to any extent vary
the risk of the Guarantor or otherwise operate as a release or discharge of the
Guarantor, all of which may be done without notice to the Guarantor. To the
fullest extent permitted by law, the Guarantor hereby expressly waives any and
all rights or defenses arising by reason of (A) any "one action" or
"anti-deficiency" law which would otherwise prevent any Noteholder from bringing
any action, including any claim for a deficiency, or exercising any other right
or remedy (including any right of set-off), against the Guarantor before or
after such Noteholder's commencement or completion of any foreclosure action,
whether judicially, by exercise of power of sale or otherwise, or (B) any other
law which in any other way would otherwise require any election of remedies by
any Noteholder.
Section 5. Unenforceability of Obligations Against Borrower. If for
any reason the Borrower has no legal existence or is under no legal obligation
to discharge any of the Obligations, or if any of the Obligations have become
irrecoverable from the Borrower by reason of the Borrower's insolvency,
bankruptcy or reorganization or by other operation of law or for any other
reason, this Guaranty shall nevertheless be binding on the Guarantor to the same
extent as if the Guarantor at all times had been the principal obligor on all
such Obligations. In the event that acceleration of the time for payment of any
of the Obligations is stayed upon the insolvency, bankruptcy or reorganization
of the Borrower, or for any other reason, al1 such amounts otherwise subject to
acceleration under the terms of the Note Agreements, the other
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Note Documents or any other agreement evidencing, securing or otherwise
executed in connection with any Obligation shall be immediately due and
payable by the Guarantor.
Section 6. Subrogation; Subordination.
Section 6.1. Waiver of Rights Against Borrower. Until the
final payment and performance in full of all of the Obligations, the
Guarantor shall not exercise and hereby waives any rights against
the Borrower arising as a result of payment by the Guarantor
hereunder, by way of subrogation, reimbursement, restitution,
contribution or otherwise, and will not prove any claim in
competition with any Noteholder in respect of any payment hereunder
in any bankruptcy, insolvency or reorganization case or proceedings
of any nature; the Guarantor will not claim any setoff, recoupment
or counterclaim against the Borrower in respect of any liability of
the Guarantor to the Borrower; and the Guarantor waives any benefit
of and any right to participate in any collateral security which may
be held by or for the benefit of any Noteholder.
Section 6.2. Subordination. The payment of any amounts due
with respect to any indebtedness of the Borrower for money borrowed
or credit received now or hereafter owed to the Guarantor is hereby
subordinated to the prior payment in full of all of the Obligations.
The Guarantor agrees that, after the occurrence of any default in
the payment or performance of any of the Obligations, the Guarantor
will not demand, sue for or otherwise attempt to collect any such
indebtedness of the Borrower to the Guarantor until all of the
Obligations shall have been paid in full. If, notwithstanding the
foregoing sentence, the Guarantor shall collect, enforce or receive
any amounts in respect of such indebtedness while any Obligations
are still outstanding, such amounts shall be collected, enforced and
received by the Guarantor as trustee for the Noteholders and be paid
over to the Noteholders, on account of the Obligations without
affecting in any manner the liability of the Guarantor under the
other provisions of this Guaranty.
Section 6.3. Provisions Supplemental. The provisions of this
(S)6 shall be supplemental to and not in derogation of any rights
and remedies of the Noteholders under any separate subordination
agreement which the Noteholders may at any time and from time to
time enter into with the Guarantor for the benefit of the
Noteholders.
Section 7. Setoff. Regardless of any other means of obtaining
payment of any of the Obligations, each of the Noteholders is hereby
authorized at any time and from time to time, without notice to the Guarantor
(any such notice being expressly waived by the Guarantor) and to the fullest
extent permitted by law, to set off and apply such deposits and other sums
against the obligations of the Guarantor under this Guaranty, whether or not
such Noteholder shall have made any demand under this Guaranty and although
such obligations may be contingent or unmatured.
Section 8. Further Assurances. The Guarantor agrees that it will
from time to time, at the request of any Noteholder, do all such things and
execute all such documents as such Noteholder may consider necessary ,or
desirable to give full effect to this Guaranty and to perfect and preserve
the rights and powers of the Noteholder hereunder. The Guarantor
acknowledges
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and confirms that the Guarantor itself has established its own adequate means
of obtaining from the Borrower on a continuing basis all information desired
by the Guarantor concerning the financial condition of the Borrower and that
the Guarantor will look to the Borrower and not to any Noteholder in order
for the Guarantor to keep adequately informed of changes in the Borrower's
financial condition.
Section 9. Release. Notwithstanding any provision of this Guaranty
to the contrary, this Guaranty shall be released, with the prior written
consent of the Required Holders, which consent shall not be conditioned on
any requirement to repay Indebtedness, upon any sale, transfer, public
offering, merger, consolidation or other similar event involving the change
of at least 33% of the legal and beneficial ownership of the Guarantor.
Section 10. Termination; Reinstatement. This Guaranty shall remain
in full force and effect until the Noteholders are given written notice of
the Guarantor's intention to discontinue this Guaranty, notwithstanding any
intermediate or temporary payment or settlement of the whole or any part of
the Obligations. No such notice shall be effective unless received and
acknowledged by an officer of each of the Noteholders at the address of each
of the Noteholders for notices set forth in (S)18 of each of the Note
Agreements. No such notice shall affect any rights of any Noteholder
hereunder, including without limitation the rights set forth in (S)(S)4 and
6, with respect to any Obligations incurred or accrued prior to the receipt
of such notice or any Obligations incurred or accrued pursuant to any
contract or commitment in existence prior to such receipt. This Guaranty
shall continue to be effective or be reinstated, notwithstanding any such
notice, if at any time any payment made or value received with respect to any
Obligation is rescinded or must otherwise be returned by any Noteholder upon
the insolvency, bankruptcy or reorganization of the Borrower, or otherwise,
all as though such payment had not been made or value received.
Section 11. Successors and Assigns. This Guaranty shall be
binding upon the Guarantor, its successors and assigns, and shall inure to
the benefit of the Noteholders and their respective successors, transferees
and assigns. Without limiting the generality of the foregoing sentence, each
Noteholder may assign or otherwise transfer the Note Agreements, the other
Note Documents or any other agreement or note held by it evidencing, securing
or otherwise executed in connection with the Obligations, or sell
participations in any interest therein, to any other entity or other person,
and such other entity or other person shall thereupon become vested, to the
extent set forth in the agreement evidencing such assignment, transfer or
participation, with all the rights in respect thereof granted to such
Noteholder herein, all in accordance with (S)13 of the Note Agreements. The
Guarantor may not assign any of its obligations hereunder without the prior
written consent of the Noteholders (and any such assignment without such
consent shall be null and void).
Section 12. Amendments and Waivers. No amendment or waiver of any
provision of this Guaranty nor consent to any departure by the Guarantor
therefrom shall be effective unless the same shall be in writing and signed
by the Required Holders. No failure on the part of any Noteholder to
exercise, and no delay in exercising, any right hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any fight
hereunder preclude by other or further exercise thereof or the exercise of
any other right.
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Section 13. Notices. All notices and other communications called for
hereunder shall be made in writing and, unless otherwise specifically
provided herein, shall be deemed to have been duly made or given when
delivered by hand or mailed first class, postage prepaid, or, in the case of
telegraphic or telexed notice, when transmitted, answer back received,
addressed as follows: if to the Guarantor, at the address set forth beneath
its signature hereto, and if to the Noteholders, at their respective
addresses for notices to the Noteholders set forth in Section 18 of the Note
Agreements, or at such address as either party may designate in writing to
the other.
Section 14. Governing Law; Consent to Jurisdiction. THIS GUARANTY IS
INTENDED TO TAKE EFFECT AS A SEALED INSTRUMENT AND SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. The
Guarantor agrees that any suit for the enforcement of this Guaranty may be
brought in the courts of the State of New York or any federal court sitting
therein and consents to the nonexclusive jurisdiction of such court and to
service of process in any such suit being made upon the Guarantor by mail at
the address specified by reference in Section 13. The Guarantor hereby waives
any objection that it may now or hereafter have to the venue of any such suit
or any such court or that such suit was brought in an inconvenient court.
Section 1.5. Waiver of Jury Trial. THE GUARANTOR HEREBY WAIVES ITS
RIGHT TO A JURY TRIAL WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY
DISPUTE IN CONNECTION WITH THIS GUARANTY, ANY RIGHTS OR OBLIGATIONS HEREUNDER
OR THE PERFORMANCE OF ANY OF SUCH RIGHTS OR OBLIGATIONS. Except as prohibited
by law, the Guarantor hereby waives any right which it may have to claim or
recover in any litigation referred to in the preceding sentence any special,
exemplary, punitive or consequential damages or any damages other than, or in
addition to, actual damages. The Guarantor (j) certifies that neither any
Noteholder nor any representative, agent or attorney of any Noteholder has
represented, expressly or otherwise, that any Noteholder would not, in the
event of litigation, seek to enforce the foregoing waivers and (ii)
acknowledges that, in entering into the Note Agreements and the other Note
Documents any Noteholder is a party, the Noteholders are relying upon, among
other things, the waivers and certifications contained in this Section 15.
Section 16. Miscellaneous. This Guaranty constitutes the entire
agreement of the Guarantor with respect to the matters set forth herein. The
rights and remedies herein provided are cumulative and not exclusive of any
remedies provided by law or any other agreement, and this Guaranty shall he
in addition to any other guaranty of or collateral security for any of the
Obligations. The invalidity or unenforceability of any one or more sections
of this Guaranty shall not affect the validity or enforceability of its
remaining provisions. Captions are for the ease of reference only and shall
not affect the meaning of the relevant provisions. The meanings of all
defined terms used in this Guaranty shall be equally applicable to the
singular and plural forms of the terms defined.
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In WITNESS WHEREOF, the Guarantor has caused this Guaranty to be
executed and delivered as of the date first above written.
Medallion Taxi Media, Inc.
By:/s/ Andrew M. Murstein
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Andrew M. Murstein
President
By:/s/ Larry D.Hall
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Larry D. Hall
Corporate Controller
Address:
437 Madison Avenue
38th Floor
New York, New York
Telex: (212) 328-2125