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EXHIBIT 10.7
GUARANTY
DATED as of April 30, 2001
by
MEDALLION TAXI MEDIA, INC.
in favor of
FLEET NATIONAL BANK, as Agent for itself and the Banks named herein
and
THE BANKS
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TABLE OF CONTENTS
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1. Definitions......................................................... 1
2. Guaranty of Payment and Performance................................. 1
3. Guarantor's Agreement to Pay Enforcement Costs, etc................. 2
4. Waivers by Guarantor; Bank's Freedom to Act......................... 2
5. Unenforceability of Obligations Against Borrower.................... 3
6. Subrogation; Subordination.......................................... 4
6.1. Waiver of Rights Against Borrower......................... 4
6.2. Subordination............................................. 4
6.3. Provisions Supplemental................................... 4
7. Security; Setoff.................................................... 5
8. Further Assurances.................................................. 5
9. Release............................................................. 5
10. Termination; Reinstatement.......................................... 6
11. Successors and Assigns.............................................. 6
12. Amendments and Waivers.............................................. 6
13. Notices............................................................. 7
14. Governing Law; Consent to Jurisdiction.............................. 7
15. Waiver of Jury Trial................................................ 7
16. Miscellaneous....................................................... 8
GUARANTY
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GUARANTY, dated as of April 30, 2001, by MEDALLION TAXI MEDIA, INC., a
New York corporation (the "Guarantor") in favor of (i) FLEET NATIONAL BANK, a
national banking association, as agent (hereinafter, in such capacity, the
"Agent" for itself and the other banking institutions (hereinafter,
collectively, the "Banks") which are or may become parties to an Amended and
Restated Loan Agreement dated as of December 24, 1997 (as amended and in effect
from time to time, the "Loan Agreement"), among Medallion Funding Corp., a New
York corporation ("Borrower"), the Banks and the Agent and (ii) each of the
Banks.
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 expects to receive substantial direct and
indirect benefits from the extensions of credit to the Borrower by the Banks
pursuant to the Loan Agreement (which benefits are hereby acknowledged);
WHEREAS, it is a condition to the effectiveness of Amendment No. 4 that
the Guarantor execute and deliver to the Agent, for the benefit of the Banks
and the Agent, a guaranty substantially in the form hereof; and
WHEREAS, the Guarantor wishes to guaranty the Borrower's obligations to
the Banks and the Agent under or in respect of the Loan Agreement as provided
herein;
NOW, THEREFORE, the Guarantor hereby agrees with the Banks and the
Agent as follows:
1. Definitions. The term "Obligations" shall have the meaning provided
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therefor in the Borrower Security Agreement (as defined in the Loan Agreement);
all other capitalized terms used herein without definition shall have the
respective meanings provided therefor in the Loan Agreement.
2. Guaranty of Payment and Performance. The Guarantor hereby
guarantees to the Banks and the Agent the full and punctual payment
when due (whether at stated maturity, by required pre-payment, by
acceleration or otherwise), as well as the performance, of all of
the
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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 the
Agent or any Bank 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 Agent, become immediately
due and payable to the Agent, for the benefit of the Banks and the Agent,
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 Agent
on any number of occasions. All payments by the Guarantor hereunder shall be
made to the Agent, in the manner and at the place of payment specified therefor
in the Loan Agreement, for the account of the Banks and the Agent.
3. Guarantor's Agreement to Pay Enforcement Costs, etc. The Guarantor
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further agrees, as the principal obligor and not as a guarantor only, to pay to
the Agent, on demand, all costs and expenses (including court costs and legal
expenses) incurred or expended by the Agent or any Bank 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 Loan Agreement, provided that if
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such interest exceeds the maximum amount permitted to be paid under applicable
law, then such interest shall be reduced to such maximum permitted amount.
4. Waivers by Guarantor; Bank's Freedom to Act. The Guarantor agrees
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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 the Agent or any Bank with respect thereto. The Guarantor waives
promptness, diligences, 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
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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 the Agent or
any Bank 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 Loan Agreement, the
other Loan 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 the Agent or any
Bank 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 the Agent or any Bank 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 the Agent or any Bank 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 the Agent's or such Bank'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 the Agent or any Bank.
5. Unenforceability of Obligations Against Borrower. If for any reason
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the Borrower has no legal existence or is under no legal
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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, all such amounts
otherwise subject to acceleration under the terms of the Loan Agreement, the
other Loan Documents or any other agreement evidencing, securing or otherwise
executed in connection with any Obligation shall be immediately due and payable
by the Guarantor.
6. Subrogation; Subordination.
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6.1. Waiver of Rights Against Borrower. Until the final
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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 the Agent
or any Bank 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 the Agent
or any Bank.
6.2. Subordination. The payment of any amounts due with respect
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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
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and received by the Guarantor as trustee for the Banks and the Agent
and be paid over to the Agent, for the benefit of the Banks and the
Agent, on account of the Obligations without affecting in any manner
the liability of the Guarantor under the other provisions of this
Guaranty.
6.3. Provisions Supplemental. The provisions of this (S)6 shall
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be supplemental to and not in derogation of any rights and remedies of
the Banks and the Agent under any separate subordination agreement
which the Agent may at any time and from time to time enter into with
the Guarantor for the benefit of the Banks and the Agent.
7. Setoff. Regardless of any other means of obtaining payment of any of
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the Obligations, each of the Agent and the Banks 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 the Agent or such Bank
shall have made any demand under this Guaranty and although such obligations
may be contingent or unmatured.
8. Further Assurances. The Guarantor agrees that it will from time to
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time, at the request of the Agent, do all such things and execute all such
documents as the Agent may consider necessary or desirable to give full effect
to this Guaranty and to perfect and preserve the rights and powers of the Banks
and the Agent hereunder. The Guarantor acknowledges 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 the Agent or any Bank in order for the Guarantor
to keep adequately informed of changes in the Borrower's financial condition.
9. Release. Notwithstanding any provision of this Guaranty to the
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contrary, this Guaranty shall be released, with the prior written consent of
the Agent and the Required Banks, 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.
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10. Termination; Reinstatement. This Guaranty shall remain in full
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force and effect until the Agent is 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
the Agent at the address of the Agent for notices set forth in (S) 10.4 of the
Loan Agreement. No such notice shall affect any rights of the Agent or any Bank
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 the Agent or any Bank upon the insolvency,
bankruptcy or reorganization of the Borrower, or otherwise, all as though such
payment had not been made or value received.
11. Successors and Assigns. This Guaranty shall be binding upon the
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Guarantor, its successors and assigns, and shall inure to the benefit of the
Agent and the Banks and their respective successors, transferees and assigns.
Without limiting the generality of the foregoing sentence, each Bank may assign
or otherwise transfer the Loan Agreement, the other Loan 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 Bank herein, all in accordance with (S) 12 of
the Loan Agreement. The Guarantor may not assign any of its obligations
hereunder without the prior written consent of the Agent and the Banks (and any
such assignment without such consent shall be null and void).
12. Amendments and Waivers. No amendment or waiver of any provision of
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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 Agent with the
consent of the Majority Banks. No failure on the part of the Agent or any Bank
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 right
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hereunder preclude any other or further exercise thereof or the exercise of any
other right.
13. Notices. All notices and other communications called for hereunder
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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
Agent, at the address for notices to the Agent set forth on Exhibit A of the
Loan Agreement, or at such address as either party may designate in writing to
the other.
14. Governing Law; Consent to Jurisdiction. THIS GUARANTY IS
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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 (S) 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.
15. Waiver of Jury Trial. THE GUARANTOR HEREBY WAIVES ITS RIGHT TO A
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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 (i) certifies that neither the Agent or any Bank
nor any representative, agent or attorney of the Agent or any Bank has
represented, expressly or otherwise, that the Agent or any Bank would not, in
the event of litigation, seek to enforce the foregoing waivers and (ii)
acknowledges that, in entering into the Loan Agreement and the other Loan
Documents to which the Agent or any Bank is a party, the Agent and
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the Banks are relying upon, among other things, the waivers and certifications
contained in this (S)15.
16. Miscellaneous. This Guaranty constitutes the entire agreement of
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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 be 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.
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
Address:
437 Madison Avenue
38th Floor
New York, New York 10022
Telecopy: 212-328-2125