Exhibit 10.43
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Stock Pledge Agreement
DATED as of April 30, 2001
between
Medallion Financial Corp.
and
Fleet National Bank, as Collateral Agent
and secured party,
for the benefit 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. Pledge of Stock, Etc .......................................... 1
Section 1.1. Pledge of Stock ............................................... 1
Section 1.2. Additional Stock .............................................. 1
Section 1.3. Pledge of Cash Collateral Account ............................. 2
Section 2. Definitions ................................................... 2
Section 3. Security for Obligations ...................................... 3
Section 4. Liquidation, Recapitalization, Etc ............................ 3
Section 4.1. Distributions Paid to Collateral Agent ........................ 3
Section 4.2. Cash Collateral Account........................................ 3
Section 4.3. Company's Rights to Cash Collateral, etc ...................... 4
Section 5. Warranty of Title; Authority .................................. 4
Section 6. Dividends, Voting, etc., Prior to Maturity .................... 4
Section 7. Remedies ...................................................... 5
Section 7.1. In General .................................................... 5
Section 7.2. Sale of Stock Collateral ...................................... 6
Section 7.3. Registration of Stock ......................................... 7
Section 7.4. Private Sales ................................................. 8
Section 7.5. Company's Agreements, etc ..................................... 8
Section 7.6 Waiver by Collateral Agent or Noteholders ..................... 9
Section 8. Release of Collateral; Subordination of Lien .................. 9
Section 9. Marshalling; Obligations Secured by Property Other
Than Stock Collateral ......................................... 10
Section 10. Company's Obligations Not Affected ............................ 10
Section 11. Transfer, etc., by Company .................................... 10
Section 12. Further Assurances ............................................ 11
Section 13. Collateral Agent's Exoneration ................................ 11
Section 14. Indemnity ..................................................... 12
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Section 15. Compensation of the Collateral Agent ...................................... 12
Section 16. Collateral Agent May Perform; Actions of Collateral Agent ................. 12
Section 17. Collateral Agent's Duties ................................................. 13
Section 18. Resignation of Collateral Agent; Successor Collateral Agent ............... 14
Section 19. No Waiver, etc ............................................................ 14
Section 20. Notice, etc ............................................................... 14
Section 21. Termination ............................................................... 15
Section 22. Overdue Amounts ........................................................... 15
Section 24. Waiver of Jury Trial ...................................................... 15
Section 25. Miscellaneous ............................................................. 15
Signatures..........................................................Error! Bookmark not defined.
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Stock Pledge Agreement
This Stock Pledge Agreement ("Agreement") is made as of April 30, 2001, by
and between Medallion Financial Corp., a Delaware corporation (the "Company"),
and Fleet National Bank, a national banking association, as collateral agent
(hereinafter in such capacity, the "Collateral Agent") for the holders of the
Notes from time to time (herein, the "Noteholders") 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 Agreement") and in effect from time to time, the "Note Agreements"),
among Medallion Funding Corp. ("Funding") and the purchasers of Notes
thereunder.
Whereas, the Company is the direct legal and beneficial owner of all of the
issued and outstanding shares of each class of the capital stock of the
corporation described on Annex A (the "Subsidiary"); and
Whereas, it is a condition to the effectiveness of the First Amendment that
the Company execute and deliver to the Collateral Agent, for the benefit of the
Noteholders, a pledge agreement in substantially the form hereof; and
Whereas, the Company wishes to grant pledges and security interests in
favor of the Collateral Agent, for the benefit of the Noteholders, as herein
provided;
Now, Therefore, in consideration of the premises contained herein and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
Section 1. Pledge of Stock, Etc.
Section 1.1. Pledge of Stock. The Company hereby pledges, assigns, grants a
security interest in, and delivers to the Collateral Agent, for the benefit of
the Noteholders, all of the shares of capital stock of the Subsidiary of every
class, as more fully described on Annex A hereto, to be held by the Collateral
Agent, for the ratable benefit of the Noteholders, subject to the terms and
conditions hereinafter set forth. The certificates for such shares, accompanied
by undated stock powers or other appropriate instruments of assignment thereof
duly executed in blank by the Company, have been delivered to the Collateral
Agent.
Section 1.2. Additional Stock. In case the Company shall acquire any
additional shares of the capital stock of the Subsidiary or corporation which is
the successor of the Subsidiary, or any securities exchangeable for or
convertible into shares of such capital stock of any class of the Subsidiary, by
purchase, stock dividend, stock split or otherwise, then the Company shall
forthwith deliver to and pledge such shares or other securities to the
Collateral Agent, for the benefit of the Noteholders, under this Agreement and
shall deliver to the Collateral Agent forthwith any certificates therefor,
accompanied by undated stock powers or other appropriate
instruments of assignment duly executed by the Company in blank. The Company
agrees that the Collateral Agent may from time to time attach as Annex A hereto
an updated list of the shares of capital stock or securities at the time pledged
with the Collateral Agent hereunder.
Section 1.3. Pledge of Cash Collateral Account. The Company also hereby
pledges, assigns, grants a security interest in, and delivers to the Collateral
Agent, for the benefit of the Noteholders, the Cash Collateral Account and all
of the Cash Collateral as such terms are hereinafter defined.
Section 2. Definitions.
Terms used herein and not defined herein that are defined in the Note
Agreements shall have the respective meanings provided in the Note Agreements,
unless the context otherwise indicated or requires, and the following terms
shall have the following meanings:
"Cash Collateral." See (S)4.
"Cash Collateral Account." See (S)4.
"Notes" shall have the meaning set forth for such term in the Note
Agreements.
"Obligations" shall mean any and all present and future indebtedness and
all performance obligations which may at any time be owing by the Company to the
Collateral Agent or any Noteholder, however arising, under the Note Agreements,
this Agreement or any other Note Document between the Collateral Agent and/or
any Noteholder and the Company 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
Company, whether secured by mortgage, pledge, or lien upon or security interest
in any property of the Company, 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 Company 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 Company 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 Company and the
Collateral Agent or any Noteholder in connection therewith, and, solely in
connection with this Agreement or the Note Agreements, the following: (i)
indebtedness owing by the Company to the Collateral Agent or any Noteholder,
(ii) the liability of the Company 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 Company to the Collateral Agent or any
Noteholder under any instrument of guaranty or 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 Company. 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,
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perfecting, preserving, retaking, holding, and preparing any of the Collateral
for sale chargeable to the Company and due from the Company under this
Agreement, the Note Agreements or under any other agreement or arrangement which
may be now or hereafter entered into between the Company and the Collateral
Agent or the Noteholders.
"Stock" The shares of stock described in Annex A attached hereto and any
additional shares of stock at the time pledged with the Collateral Agent
hereunder.
"Stock Collateral." The property at any time pledged to the Collateral
Agent hereunder (whether described herein or not) and all income therefrom,
increases therein and proceeds thereof, including without limitation that
included in Cash Collateral, but excluding from the definition of "Stock
Collateral" any income, increases or proceeds received by the Company to the
extent expressly permitted by (S)6.
"Time Deposits." See (S)4.
Section 3. Security for Obligations.
This Agreement and the security interest in and pledge of the Stock
Collateral hereunder are made with and granted to the Collateral Agent, for the
benefit of the Noteholders, as security for the payment and performance in full
of all the Obligations.
Section 4. Liquidation, Recapitalization, Etc.
Section 4.1. Distributions Paid to Collateral Agent. Any sums or other
property paid or distributed upon or with respect to any of the Stock, whether
by dividend or redemption or upon the liquidation or dissolution of the issuer
thereof or otherwise, shall, except to the limited extent provided in (S)6, be
paid over and delivered to the Collateral Agent to be held by the Collateral
Agent, for the benefit of the Noteholders, as security for the payment and
performance in full of all of the Obligations. In case, pursuant to the
recapitalization or reclassification of the capital of the issuer thereof or
pursuant to the reorganization thereof, any distribution of capital shall be
made on or in respect of any of the Stock or any property shall be distributed
upon or with respect to any of the Stock, the property so distributed shall be
delivered to the Collateral Agent, for the benefit of the Noteholders, to be
held by it as security for the Obligations. Except to the limited extent
provided in (S)6, all sums of money and property paid or distributed in respect
of the Stock, whether as a dividend or upon such a liquidation, dissolution,
recapitalization or reclassification or otherwise, that are received by the
Company shall, until paid or delivered to the Collateral Agent, be held in trust
for the Collateral Agent, for the benefit of the Noteholders, as security for
the payment and performance in full of all of the Obligations.
Section 4.2. Cash Collateral Account. All sums of money that are delivered
to the Collateral Agent pursuant to this (S)4 shall be deposited into an
interest bearing account with the Collateral Agent (the "Cash Collateral
Account"). Some or all of the funds from time to time in the Cash Collateral
Account may be invested in time deposits, including, without limitation,
certificates of deposit issued by the Collateral Agent (such certificates of
deposit or other time deposits being hereinafter referred to, collectively, as
"Time Deposits"), that are satisfactory to
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the Collateral Agent after consultation with the Company, provided, that, in
each such case, arrangements satisfactory to the Collateral Agent are made and
are in place to perfect and to insure the first priority of the Collateral
Agent's security interest therein. Interest earned on the Cash Collateral
Account and on the Time Deposits, and the principal of the Time Deposits at
maturity that is not invested in new Time Deposits, shall be deposited in the
Cash Collateral Account. The Cash Collateral Account, all sums from time to time
standing to the credit of the Cash Collateral Account, any and all Time
Deposits, any and all instruments or other writings evidencing Time Deposits and
any and all proceeds or any thereof are hereinafter referred to as the "Cash
Collateral."
Section 4.3. Company's Rights to Cash Collateral, etc. Except as otherwise
expressly provided in (S)16, the Company shall have no right to withdraw sums
from the Cash Collateral Account, to receive any of the Cash Collateral or to
require the Collateral Agent to part with the Collateral Agent's possession of
any instruments or other writings evidencing any Time Deposits.
Section 5. Warranty of Title; Authority.
The Company hereby represents and warrants that: (i) the Company has good
and marketable title to, and is the sole record and beneficial owner of, the
Stock described in (S)1, subject to no pledges, liens, security interests,
charges, options, restrictions or other encumbrances except the pledge and
security interest created by this Agreement and Permitted Liens, (ii) all of the
Stock described in (S)1 is validly issued, fully paid and non-assessable, (iii)
the Company has full power, authority and legal right to execute, deliver and
perform its obligations under this Agreement and to pledge and grant a security
interest in all of the Stock Collateral pursuant to this Agreement, and the
execution, delivery and performance hereof and the pledge of and granting of a
security interest in the Stock Collateral hereunder have been duly authorized by
all necessary corporate or other action and do not contravene any law, rule or
regulation or any provision of the Company's charter documents or by-laws or of
any judgment, decree or order of any tribunal or of any agreement or instrument
to which the Company is a party or by which it or any of its property is bound
or affected or constitute a default thereunder, and (iv) the information set
forth in Annex A hereto relating to the Stock is true, correct and complete in
all respects. The Company covenants that it will defend the rights of the
Noteholders and security interest of the Collateral Agent, for the benefit of
the Noteholders, in such Stock against the claims and demands of all other
persons whomsoever. The Company further covenants that it will have the like
title to and right to pledge and grant a security interest in the Stock
Collateral hereafter pledged or in which a security interest is granted to the
Collateral Agent hereunder and will likewise defend the rights, pledge and
security interest thereof and therein of the Noteholders and the Collateral
Agent.
Section 6. Dividends, Voting, Etc., Prior to Maturity.
So long as no Default or Event of Default shall have occurred and be
continuing, the Company shall be entitled to receive all cash dividends paid in
respect of the Stock, to vote the Stock and to give consents, waivers and
ratifications in respect of the Stock; provided, however, that no vote shall be
cast or consent, waiver or ratification given by the Company if the effect
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thereof would in the reasonable judgment of the Required Holders impair any of
the Stock Collateral or be inconsistent with or result in any violation of any
of the provisions of the Note Agreements, or any of the other Note Documents.
All such rights of the Company to receive cash dividends shall cease in case a
Default or an Event of Default shall have occurred and be continuing. All such
rights of the Company to vote and give consents, waivers and ratifications with
respect to the Stock shall, at the Collateral Agent's option, as evidenced by
the Collateral Agent's notifying the Company of such election, cease in case a
Default or an Event of Default shall have occurred and be continuing.
Section 7. Remedies.
Section 7.1. In General. If a Default or an Event of Default shall have
occurred and be continuing, the Collateral Agent shall thereafter have the
following rights and remedies (to the extent permitted by applicable law) in
addition to the rights and remedies of a secured party under the Uniform
Commercial Code of the State of New York (the "New York UCC"), all such rights
and remedies being cumulative, not exclusive, and enforceable alternatively,
successively or concurrently, at such time or times as the Collateral Agent
deems expedient:
(a) if the Collateral Agent so elects and gives notice of such
election to the Company, the Collateral Agent may vote any or all
shares of the Stock (whether or not the same shall have been
transferred into its name or the name of its nominee or nominees) for
any lawful purpose, including, without limitation, if the Collateral
Agent so elects, for the liquidation of the assets of the issuer
thereof, and give all consents, waivers and ratifications in respect
of the Stock and otherwise act with respect thereto as though it were
the outright owner thereof (the Company hereby irrevocably
constituting and appointing the Collateral Agent the proxy and
attorney-in-fact of the Company, with full power of substitution, to
do so);
(b) the Collateral Agent may demand, sue for, collect or make any
compromise or settlement the Collateral Agent deems suitable in
respect of any Stock Collateral;
(c) the Collateral Agent may sell, resell, assign and deliver, or
otherwise dispose of any or all of the Stock Collateral, for cash or
credit or both and upon such terms at such place or places, at such
time or times and to such entities or other persons as the Collateral
Agent thinks expedient, all without demand for performance by the
Company or any notice or advertisement whatsoever except as expressly
provided herein or as may otherwise be required by law;
(d) the Collateral Agent may cause all or any part of the Stock
held by it to be transferred into its name or the name of its nominee
or nominees; and
(e) the Collateral Agent may set off against the Obligations any
and all sums deposited with it or held by it, including without
limitation, any sums standing to the credit of the Cash Collateral
Account and any Time Deposits issued by the Collateral Agent.
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(f) Each of the Noteholders acknowledges and agrees that (i) it shall
only have recourse to the Collateral through the Collateral Agent and that
it shall have no independent recourse to the Collateral and (ii) the
Collateral Agent shall have no obligation to take any action, or refrain
from taking any action, except upon instructions from the Required Holders
in accordance with the provisions hereunder.
Section 7.2. Sale of Stock Collateral. In the event of any disposition of
the Stock Collateral as provided in clause (c) of (S)7.1, the Collateral Agent
shall give to the Company at least five Business Days prior written notice of
the time and place of any public sale of the Stock Collateral or of the time
after which any private sale or any other intended disposition is to be made.
The Company hereby acknowledges that five Business Days prior written notice of
such sale or sales shall be reasonable notice. The Collateral Agent may enforce
its rights hereunder without any other notice and without compliance with any
other condition precedent now or hereunder imposed by statute, rule of law or
otherwise (all of which are hereby expressly waived by the Company, to the
fullest extent permitted by law). The Collateral Agent may buy any part or all
of the Stock Collateral at any public sale and if any part or all of the Stock
Collateral is of a type customarily sold in a recognized market or is of the
type which is the subject of widely-distributed standard price quotations, the
Collateral Agent may buy at private sale and may make payments thereof by any
means. The Collateral Agent may apply the cash proceeds actually received from
any sale or other disposition to the reasonable expenses of retaking, holding,
preparing for sale, selling and the like, to reasonable attorneys' fees, travel
and all other expenses which may be incurred by the Collateral Agent in
attempting to collect the Obligations or to enforce this Agreement or in the
prosecution or defense of any action or proceeding related to the subject matter
of this Agreement, and then to the Obligations in accordance with this (S)7.2.
The proceeds of any collection or sale of, or other realization upon, all or any
part of the Stock Collateral shall be applied by the Collateral Agent in the
following order of priority:
first, to payment of the expenses of sale or other realization,
including reasonable compensation to the Collateral Agent and its agents
and counsel and all expenses, liabilities, advances incurred or made by the
Collateral Agent in connection therewith, and any other unreimbursed
expenses for which the Collateral Agent is to be reimbursed under this
Agreement;
second, to the payment of the Obligations (after taking into account
amounts not then due and payable), pro rata in accordance with the
respective outstanding balances thereof (including principal, interest,
fees and all other amounts due thereunder); and
third, after indefeasible payment in full of all Obligations, to
payment to the Company or Funding or their successors and assigns, or as a
court of competent jurisdiction may direct, of any surplus then remaining
from such proceeds.
The Collateral Agent may make distributions hereunder in cash or in kind,
but such distributions to the Noteholders shall in all events be made pro rata
on the basis of the outstanding principal amount of the Obligations.
Distributions made under clause "second" above may also be made in a combination
of cash or property, but distributions to the Noteholders shall be made pro rata
on the basis of the outstanding principal amount of the
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Obligations. Distributions made under clauses "first" and "third" may also be
made in a combination of cash or property. Any deficiency remaining, after
application of such cash or cash proceeds to the Obligations, shall continue to
be Obligations for which Funding remains liable.
In making the determinations and allocations required by this (S)7.2 or
otherwise by this Agreement, the Collateral Agent may rely upon information
supplied by the Noteholders as to the amounts of the Obligations, or as to other
matters (with each such matter being conclusively deemed to be proved or
established by a certificate executed by an officer of such person), and the
Collateral Agent shall have no liability to any of the Noteholders for actions
taken in reliance upon such information. All distributions made by the
Collateral Agent pursuant to this (S)7.2 shall be final, and the Collateral
Agent shall have no duty to inquire as to the application by the Noteholders of
any amount distributed to them. However, if at any time the Collateral Agent
determines that an allocation was based upon a mistake of fact (including
without limitation, mistakes based on an assumption that principal or interest
or any other amount has been paid by payments that are subsequently recovered
from the recipient thereof through the operation of any bankruptcy,
reorganization, insolvency or other laws or otherwise), the Collateral Agent may
in its discretion, but shall not, subject to this (S)7.2, be obligated to,
adjust subsequent allocations and distributions hereunder so that, on a
cumulative basis, the Noteholders receive the distributions to which they would
have been entitled if such mistake of fact had not been made. If any dispute or
disagreement shall arise as to the allocation of any sum of money received by
the Collateral Agent hereunder or under any Security Document, the Collateral
Agent shall have the right to deliver such sum to a court of competent
jurisdiction and therein commence an action for interpleader. If, through the
operation of any bankruptcy, reorganization, insolvency or other laws or
otherwise, the security interests created hereby are enforced with respect to
some, but not all, of the Obligations, the Collateral Agent shall nonetheless
apply the proceeds for the benefit of the Noteholders in the proportion and
subject to the priorities of (S)7.2 hereof. Only after such applications, and
after payment by the Collateral Agent of any amount required by (S)9-504(1)(c)
of the New York UCC, need the Collateral Agent account to the Company for any
surplus. To the extent that any of the Obligations are to be paid or performed
by a person other than the Company, the Company waives and agrees not to assert
any rights or privileges which it may have under (S)9-112 of the New York UCC.
If any Noteholder acquires custody, control or possession of any Stock
Collateral or proceeds therefrom, other than pursuant to the terms of this
Agreement, such Noteholder shall promptly cause such Stock Collateral or
proceeds to be delivered to or put in the custody, possession or control of the
Collateral Agent or, if the Collateral Agent shall so designate, an agent of the
Collateral Agent (which Collateral Agent may be a branch or affiliate of the
agent, the Administrative Collateral Agent or any Bank) in the same form of
payment received, with appropriate endorsements, in the country in which such
Stock Collateral is held for distribution in accordance with the provisions of
this Section. Until such time as the provisions of the immediately preceding
sentence have been complied with, such Noteholder shall be deemed to hold such
Stock Collateral and proceeds in trust for the Collateral Agent.
Section 7.3. Registration of Stock. If the Collateral Agent shall determine
to exercise its right to sell any or all of the Stock pursuant to this (S)7, and
if in the opinion of counsel for the
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Collateral Agent it is necessary, or if in the reasonable opinion of the
Collateral Agent it is advisable, to have the Stock, or that portion thereof to
be sold, registered under the provisions of the Securities Act of 1933, as
amended (the "Securities Act"), the Company agrees to use its best efforts to
cause the issuer of the Stock contemplated to be sold, to execute and deliver,
and cause the directors and officers of such issuer to execute and deliver, all
at the Company's expense, all such instruments and documents, and to do or cause
to be done all such other acts and things as may be necessary or, in the
reasonable opinion of the Collateral Agent, advisable to register such Stock
under the provisions of the Securities Act and to cause the registration
statement relating thereto to become effective and to remain effective for a
period of 9 months from the date such registration statement became effective,
and to make all amendments thereto or to the related prospectus or both that, in
the reasonable opinion of the Collateral Agent, are necessary or advisable, all
in conformity with the requirements of the Securities Act and the rules and
regulations of the Securities and Exchange Commission applicable thereto. The
Company agrees to use its best efforts to cause such issuer to comply with the
provisions of the securities or "Blue Sky" laws of any jurisdiction which the
Collateral Agent shall designate and to cause such issuer to make available to
its security holders, as soon as practicable, an earnings statement (which need
not be audited) which will satisfy the provisions of (S)11(a) of the Securities
Act.
Section 7.4. Private Sales. The Company recognizes that the Collateral
Agent may be unable to effect a public sale of the Stock by reason of certain
prohibitions contained in the Securities Act, federal banking laws, and other
applicable laws, but may be compelled to resort to one or more private sales
thereof to a restricted group of purchasers. The Company agrees that any such
private sales may be at prices and other terms less favorable to the seller than
if sold at public sales and that such private sales shall not by reason thereof
be deemed not to have been made in a commercially reasonable manner. The
Collateral Agent shall be under no obligation to delay a sale of any of the
Stock for the period of time necessary to permit the issuer of such securities
to register such securities for public sale under the Securities Act, or such
other federal banking or other applicable laws, even if the issuer would agree
to do so. Subject to the foregoing, the Collateral Agent agrees that any sale of
the Stock shall be made in a commercially reasonable manner, and the Company
agrees to use its best efforts to cause the issuer of the Stock contemplated to
be sold, to execute and deliver, and cause the directors and officers of such
issuer to execute and deliver, all at the Company's expense, all such
instruments and documents, and to do or cause to be done all such other acts and
things as may be necessary or, in the reasonable opinion of the Collateral
Agent, advisable to exempt such Stock from registration under the provisions of
the Securities Act, and to make all amendments to such instruments and documents
which, in the opinion of the Collateral Agent, are necessary or advisable, all
in conformity with the requirements of the Securities Act and the rules and
regulations of the Securities and Exchange Commission applicable thereto. The
Company further agrees to use its best efforts to cause such issuer to comply
with the provisions of the securities or "Blue Sky" laws of any jurisdiction
which the Collateral Agent shall designate and, if required, to cause such
issuer or issuers to make available to its security holders, as soon as
practicable, an earnings statement (which need not be audited) which will
satisfy the provisions of (S)11(a) of the Securities Act.
Section 7.5. Company's Agreements, etc. The Company further agrees to do or
cause to be done all such other acts and things as may be reasonably necessary
to make any sales of any
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portion or all of the Stock pursuant to this (S)7 valid and binding and in
compliance with any and all applicable laws (including, without limitation, the
Securities Act, the Securities Exchange Act of 1934, as amended, the rules and
regulations of the Securities and Exchange Commission applicable thereto and all
applicable state securities or "Blue Sky" laws), regulations, orders, writs,
injunctions, decrees or awards of any and all courts, arbitrators or
governmental instrumentalities, domestic or foreign, having jurisdiction over
any such sale or sales, all at the Company's expense. The Company further agrees
that a breach of any of the covenants contained in this (S)7 will cause
irreparable injury to the Collateral Agent and the Noteholders, that the
Collateral Agent and the Noteholders have no adequate remedy at law in respect
of such breach and, as a consequence, agrees that each and every covenant
contained in this (S)7 shall be specifically enforceable against the Company by
the Collateral Agent and the Company hereby waives and agrees not to assert any
defenses against an action for specific performance of such covenants.
Section 7.6 Waiver by Collateral Agent or Noteholders. The Collateral
Agent's or any Noteholder's failure at any time or times hereafter to require
strict performance by either the Company or Funding of any of the provisions,
warranties, terms and conditions contained in this Agreement or any of the Note
Documents shall not waive, affect or diminish any right of the Collateral Agent
or any Noteholder at any time or times hereafter to demand strict performance
therewith and with respect to any other provisions, warranties, terms and
conditions contained in this Agreement or any of the Note Documents, and any
waiver of any Default or Event of Default shall not waive or affect any other
Default or Event of Default, whether prior or subsequent thereto, and whether of
the same or a different type. None of the warranties, conditions, provisions and
terms contained in this Agreement or any other Note Documents shall be deemed to
have been waived by any act or knowledge of the Collateral Agent or any
Noteholder, or their respective agents, officers or employees except by an
instrument in writing signed by an officer of the Collateral Agent or such
Noteholder and directed to the Company or Funding specifying such waiver.
Section 8. Release of Collateral; Subordination of Lien.
The Collateral Agent, for the benefit of itself and the Noteholders is
hereby authorized, upon receipt of a request from either the Company or Funding,
to release any Stock Collateral and to provide such releases with respect to any
Stock Collateral in connection with any sale, exchange or other disposition
thereof permitted under the Note Agreements so long as (i) the Collateral Agent
obtains a first priority perfected security interest in any non-cash proceeds of
such sale, exchange or other disposition and (ii) any net cash proceeds of such
sale, exchange or other disposition are paid in accordance with the provisions
hereunder. Whether or not so instructed by the Required Holders, the Collateral
Agent may release any Stock Collateral and may provide any release, termination
statement or instrument of subordination required by order of a court of
competent jurisdiction or otherwise required by applicable law. To the extent
permitted by the Note Agreements, the Collateral Agent shall, on the written
instructions of the Required Holders, subordinate by written instrument the lien
on all or any portion of the Stock Collateral to any other lender extending to
the Company or Funding indebtedness permitted by the terms of the Note
Agreements.
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Section 9. Marshalling; Obligations Secured by Property Other Than Stock
Collateral.
None of the Collateral Agent or any Noteholder shall be required to marshal
any present or future collateral security for (including but not limited to this
Agreement and the Stock Collateral), or other assurances of payment of, the
Obligations, or to resort to such collateral security or other assurances of
payment in any particular order. All of the Collateral Agent's rights hereunder
and of the Noteholders in respect of such collateral security and other
assurances of payment shall be cumulative and in addition to all other rights,
however existing or arising. To the extent that it lawfully may, the Company
hereby agrees that it will not invoke any law relating to the marshalling of
collateral that might cause delay in or impede the enforcement of the Collateral
Agent's rights under this Agreement or under any other instrument evidencing any
of the Obligations or under which any of the Obligations is outstanding or by
which any of the Obligations is secured or payment thereof is otherwise assured,
and to the extent that it lawfully may the Company hereby irrevocably waives the
benefits of all such laws. To the extent that the Obligations are now or
hereafter secured by property other than the Stock Collateral, or by a
guarantee, endorsement or property of any other person, then the Collateral
Agent shall have the right to, and upon the direction of the Required Holders
shall, proceed against such other property, guarantee or endorsement upon the
occurrence of a Default and during the continuance of an Event of Default, and
the Collateral Agent shall have the right, with the consent of the Required
Holders, to determine which rights, security, liens, security interests or
remedies the Collateral Agent shall at any time pursue, relinquish, subordinate,
modify or take any other action with respect thereto, without in any way
modifying or affecting any of them or any of the Collateral Agent's rights or
any of the Noteholders' rights under the Obligations, this Agreement or any
other Note Document.
Section 10. Company's Obligations Not Affected.
The obligations of the Company hereunder shall remain in full force and
effect without regard to, and shall not be impaired by (i) any exercise or
nonexercise, or any waiver, by the Collateral Agent or any Noteholder of any
right, remedy, power or privilege under or in respect of any of the Obligations
or any security therefor (including this Agreement); (ii) any amendment to or
modification of the Note Agreements, the other Note Documents or any of the
Obligations; (iii) any amendment to or modification of any instrument (other
than this Agreement) securing any of the Obligations, including, without
limitation, any of the Security Documents; or (iv) the taking of additional
security for, or any other assurances of payment of, any of the Obligations or
the release or discharge or termination of any security or other assurances of
payment or performance for any of the Obligations; whether or not the Company
shall have notice or knowledge of any of the foregoing.
Section 11. Transfer, etc., by Company.
Without the prior written consent of the Collateral Agent, the Company will
not sell, assign, transfer or otherwise dispose of, grant any option with
respect to, or pledge or grant any security interest in or otherwise encumber or
restrict any of the Stock Collateral or any interest therein, except for the
pledge thereof and security interest therein provided for (i) in this
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Agreement in that certain Stock Pledge dated as of April 30, 2001 between the
Company and Fleet National Bank, as agent, pursuant to that certain Amended and
Restated Loan Agreement dated as of December 24, 1997, as amended from time to
time and (ii) in that certain Security Agreement dated as of September 22, 2000,
as amended as of October 27, 2000, among Medallion Financial Corp., Medallion
Business Credit, LLC and the banks parties thereto.
Section 12. Further Assurances.
The Company will do all such acts, and will furnish to the Collateral Agent
all such financing statements, certificates, legal opinions and other documents
and will obtain all such governmental consents and corporate approvals and will
do or cause to be done all such other things as the Collateral Agent or any
Noteholder may reasonably request from time to time in order to give full effect
to this Agreement and to secure the rights of the Noteholders, all without any
cost or expense to the Collateral Agent or any if the Noteholders. If the
Collateral Agent so elects, a photocopy of this Agreement may at any time and
from time to time be filed by the Collateral Agent as a financing statement in
any recording office in any jurisdiction.
Section 13. Collateral Agent's Exoneration.
(a) Under no circumstances shall the Collateral Agent be deemed to assume
any responsibility for or obligation or duty with respect to any part or all of
the Stock Collateral of any nature or kind or any matter or proceedings arising
out of or relating thereto, other than (i) to exercise reasonable care in the
physical custody of the Stock Collateral and (ii) after a Default or an Event of
Default shall have occurred and be continuing to act in a commercially
reasonable manner. Neither the Collateral Agent nor any Noteholder shall be
required to take any action of any kind to collect, preserve or protect its or
the Company's rights in the Stock Collateral or against other parties thereto.
The Collateral Agent's prior recourse to any part or all of the Stock Collateral
shall not constitute a condition of any demand, suit or proceeding for payment
or collection of any of the Obligations.
(b) If at any time or times hereafter the Collateral Agent employs
counsel for advice with respect to this Agreement, or to intervene, file a
petition, answer, motion or other pleading in any suit or proceeding relating to
this Agreement (including, without limitation, the interpretation or
administration, or the amendment, waiver or consent with respect to any term, of
this Agreement), or relating to any Stock Collateral; or to protect, take
possession of, or liquidate any Stock Collateral, or to attempt to enforce any
security interest or lien in any Stock Collateral, or to represent the
Collateral Agent in any pending or threatened litigation with respect to the
affairs of Funding in any way relating to any of the Stock Collateral or to the
Obligations or to enforce any rights of the Collateral Agent or any Noteholder
or liabilities of Funding, any person to whom Funding has made a Loan, or any
person which may be obligated to the Collateral Agent or such Noteholder by
virtue of this Agreement or any other agreement, instrument or document now or
hereafter delivered to the Collateral Agent or any Noteholder by or for the
benefit of Funding, then in any of such events, all of the reasonable attorneys'
fees actually incurred arising from such services, and any expenses, costs and
charges relating thereto, shall be Obligations.
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Section 14. Indemnity.
Each of the Noteholders severally agree (i) to reimburse the Collateral
Agent, on demand, in the amount of its pro rata share, for any expenses referred
to in this ss.14 which shall not have been reimbursed or paid by Funding or paid
from the proceeds of Stock Collateral as provided herein and (ii) to indemnify
and hold harmless the Collateral Agent and its directors, officers, employees
and agents, on demand, in the amount of such pro rata share, from and against
any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements referred to in this ss.14, to
the extent the same shall not have been reimbursed by Funding or paid from the
proceeds of Stock Collateral as provided herein; provided that no Noteholder
shall be liable to the Collateral Agent for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting solely from the gross negligence or willful
misconduct of the Collateral Agent or any of its directors, officers, employees
or agents as determined by a final non-appealable order of a court of competent
jurisdiction. For the purposes of this ss.14, pro rata shares at any time shall
be determined based upon the outstanding principal amount of the Notes at the
time such expenses were incurred.
Section 15. Compensation of the Collateral Agent.
The Collateral Agent shall be entitled to reasonable compensation (which
shall not be limited by any provision of law in regard to the compensation of a
trustee of an express trust) for all services rendered, and to reimbursement for
all reasonable expenses, disbursements and advances incurred or made by the
Collateral Agent, in and about the administration of the trusts herein provided
for and in and about foreclosure, enforcement or other protection of this
Agreement or the lien and security interest hereof or thereof (including
reasonable compensation and expenses and disbursements of its counsel and of all
persons not regularly in their employ). The Company and Funding, jointly and
severally, agree to pay such compensation for services of the Collateral Agent
and to reimburse the Collateral Agent for such expenses, disbursements and
advances. The Company and Funding, jointly and severally, agree to indemnify and
save harmless the Collateral Agent from and against all loss, liability and
expense incurred in good faith and without negligence on its part in the
exercise or performance of any rights, remedies or duties under this Agreement.
Section 16. Collateral Agent May Perform; Actions of Collateral Agent.
If the Company or Funding fails to perform any agreement contained herein,
the Collateral Agent may (but shall not be required to) itself perform, or cause
performance of, such agreement, and the expenses of the Collateral Agent
incurred in connection therewith shall be payable by Funding, together with
interest thereon at the rate of 9.20% per annum, determined on a basis of a
360-day year of twelve 30-day months, and until so paid shall be deemed part of
the Obligations. The Collateral Agent shall not be obligated to take any action
under this Agreement except for the performance of such duties as are
specifically set forth herein. Subject to the other provisions of this
Agreement, the Note Agreement and the other Note Documents, the Collateral Agent
shall take any action under or with respect to this Agreement which is requested
by the Required Holders and which is not inconsistent with or contrary to the
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provisions of this Agreement or the Note Documents. The Collateral Agent shall
have the right to decline to follow any such direction if the Collateral Agent,
being advised by counsel, determines that the directed action is not permitted
by the terms of this Agreement or the other Note Documents, may not lawfully be
taken or would involve it in personal liability, and the Collateral Agent shall
not be required to take any such action unless any indemnity which is required
hereunder in respect of such action has been provided. Subject to the other
requirements of this Agreement, the Collateral Agent may rely on any such
direction given to it by the Required Holders and shall be fully protected, and
shall under no circumstances (absent the gross negligence or willful misconduct
of the Collateral Agent) be liable to the Company, Funding, any Noteholder or
any other person for taking or refraining from taking action in accordance
therewith. The Collateral Agent may consult with counsel and shall be fully
protected in taking any action hereunder in accordance with any advice of such
counsel. The Collateral Agent shall have the right but not the obligation at any
time to seek instructions concerning the administration of this Agreement, the
duties created hereunder, or any of the Stock Collateral from any court of
competent jurisdiction.
Section 17. Collateral Agent's Duties.
The powers conferred on the Collateral Agent hereunder are solely to
protect its interest and the interests of the Noteholders in the Stock
Collateral and shall not impose any duty upon it to exercise any such powers
except as provided herein. Except for the safe custody of any Stock Collateral
in its possession and the accounting for monies actually received by it
hereunder and performing its other express duties hereunder, the Collateral
Agent shall have no duty as to any Stock Collateral or as to the taking of any
necessary steps to preserve rights against prior parties or any other rights
pertaining to any Stock Collateral. The Collateral Agent shall not be
responsible in any manner whatsoever for the correctness of any recitals,
statements, representations or warranties contained herein, except for those
made by it herein. The Collateral Agent makes no representation as to the value
or condition of the Stock Collateral or any part thereof, as to the title of the
Company to the Stock Collateral, as to the security afforded by this Agreement
or as to the validity, execution, enforceability, legality or sufficiency of
this Agreement, and the Collateral Agent shall incur no liability or
responsibility in respect of any such matters. The Collateral Agent shall not be
responsible for insuring the Stock Collateral, for the payment of taxes,
charges, assessments or liens upon the Stock Collateral or otherwise as to the
maintenance of the Stock Collateral.
The Collateral Agent may execute any of the powers granted under this
Agreement and perform any duty hereunder or thereunder either directly or by or
through Agents or attorneys-in-fact, and shall not be responsible for the
negligence or misconduct of any agents or attorneys-in-fact selected by it with
reasonable care. In no event will the Collateral Agent or any officer, agent or
representative thereof be responsible for the consequences of any oversight or
error of judgment whatsoever, or personally liable for any action taken or
omitted to be taken, except that such person may be liable due to its willful
misconduct or gross negligence. Neither the Collateral Agent nor any officer,
agent or representative thereof shall be personally liable for any action taken
by any such person in accordance with any notice given by the Required Holders
pursuant to the terms of this Agreement even if, at the time such action is
taken by any such person, the Required Holders are not entitled to give such
notice, except where the account
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officer of the Collateral Agent active upon Funding's accounts has actual
knowledge that such Required Holders are not entitled to give such notice.
Section 18. Resignation of Collateral Agent; Successor Collateral Agent.
The Collateral Agent may at any time (i) be removed upon at least 30 days'
prior written notice to the Collateral Agent provided by the Required Holders or
(ii) resign by giving thirty (30) days prior written notice thereof to each
Noteholder, the Company and Funding, provided that no resignation shall be
effective until a successor for the Collateral Agent is appointed. Upon such
resignation or removal, the Required Holders shall have the right to appoint a
successor Collateral Agent. If no successor Collateral Agent shall have been so
appointed and shall have accepted such appointment within thirty (30) days after
the retiring Collateral Agent's giving of notice of resignation, then the
retiring Collateral Agent may, on behalf of the Required Holders, as applicable,
appoint a successor Collateral Agent, which shall be a bank or trust company
incorporated and doing business within the United States of America having a
combined capital and surplus of at least $250,000,000. Upon the acceptance of
any appointment as Collateral Agent hereunder by a successor Collateral Agent,
such successor Collateral Agent shall thereupon succeed to and become vested
with all the rights, powers, privileges and duties of the retiring Collateral
Agent, and the retiring Collateral Agent shall be discharged from its duties and
obligations hereunder. After any retiring Collateral Agent's resignation or
removal, the provisions of this Agreement shall continue in effect for its
benefit in respect of any actions taken or omitted to be taken by it while it
was acting as Collateral Agent.
Section 19. No Waiver, etc.
Neither this Agreement nor any term hereof may be changed, waived,
discharged or terminated except by a written instrument expressly referring to
this Agreement and to the provisions so modified or limited, and executed by the
Collateral Agent, with the consent of the Required Holders (or, if required by
the Note Agreements, with the consent of all of the Noteholders), and the
Company. No act, failure or delay by the Collateral Agent shall constitute a
waiver of its rights and remedies hereunder or otherwise. No single or partial
waiver by the Collateral Agent of any default or right or remedy that it may
have shall operate as a waiver of any other default, right or remedy or of the
same default, right or remedy on a future occasion. The Company hereby waives
presentment, notice of dishonor and protest of all instruments, included in or
evidencing any of the Obligations, and any and all other notices and demands
whatsoever (except as expressly provided herein or in the Note Agreements).
Section 20. Notice, etc.
All notices, requests and other communications hereunder shall be made in
the manner set forth in ss.18 of the Note Agreements.
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Section 21. Termination.
Upon final payment and performance in full of the Obligations, this
Agreement shall terminate and the Collateral Agent shall, at the Company's
request and expense, return such Stock Collateral in the possession or control
of the Collateral Agent as has not theretofore been disposed of pursuant to the
provisions hereof, together with any moneys and other property at the time held
by the Collateral Agent hereunder.
Section 22. Overdue Amounts.
Until paid, all amounts due and payable by the Company hereunder shall be a
debt secured by the Stock Collateral and shall bear, whether before or after
judgment, interest at the rate of interest for overdue principal set forth in
the Note Agreements.
Section 23. Governing Law; Consent to Jurisdiction.
This Agreement 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 Company agrees that any suit for the enforcement of this Agreement may
be brought in the courts of the State of New York or any federal court sitting
therein and consents to the non-exclusive jurisdiction of such court and to
service of process in any such suit being made upon the Company by mail at the
address specified in ss.18 of the Note Agreements. The Company 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 is brought in an inconvenient court.
Section 24. Waiver of Jury Trial.
The Company waives its right to a jury trial with respect to any action or
claim arising out of any dispute in connection with this Agreement, any rights
or obligations hereunder or the performance of any such rights or obligations.
Except as prohibited by law, the Company 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 Company (i) certifies that neither the
Collateral Agent or any Noteholder nor any representative, agent or attorney of
the Collateral Agent or any Noteholder has represented, expressly or otherwise,
that the Collateral Agent or 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 to which the
Collateral Agent is a party and the Noteholders are relying upon, among other
things, the waivers and certifications contained in this (S)25.
Section 25. Miscellaneous.
The headings of each section of this Agreement are for convenience only and
shall not define or limit the provisions thereof. This Agreement and all rights
and obligations hereunder
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shall be binding upon the Company and its respective successors and assigns, and
shall inure to the benefit of the Collateral Agent and the Noteholders and their
respective successors and assigns. If any term of this Agreement shall be held
to be invalid, illegal or unenforceable, the validity of all other terms hereof
shall be in no way affected thereby, and this Agreement shall be construed and
be enforceable as if such invalid, illegal or unenforceable term had not been
included herein. The Company 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). The Company acknowledges receipt
of a copy of this Agreement.
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In Witness Whereof, intending to be legally bound, the Company and the
Collateral Agent have caused this Agreement to be executed as of the date first
above written.
Medallion Financial Corp.
By /s/ Andrew M. Murstein
----------------------
Andrew M. Murstein
President
By /s/ Larry D. Hall
-----------------
Larry D. Hall
Corporate Controller
Fleet National Bank, as Collateral Agent
By /s/ Kevin J. Foley
------------------
Name: Kevin J. Foley
Title: Sr. VP
The undersigned Subsidiary hereby joins in the above Agreement for the sole
purpose of consenting to and being bound by the provisions of ss.ss.4.1, 6 and 7
thereof, the undersigned hereby agreeing to cooperate fully and in good faith
with the Collateral Agent and the Company in carrying out such provisions.
Medallion Taxi Media, Inc.
By /s/ Andrew M. Murstein
----------------------
Andrew M. Murstein
President
By /s/ Larry D. Hall
-----------------
Larry D. Hall
Corporate Controller
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Annex A to Pledge Agreement
The issuer has no authorized, issued or outstanding shares of its capital
stock of any class or any commitments to issue any shares of its capital stock
of any class or any securities convertible into or exchangeable for any shares
of its capital stock of any class except as otherwise stated in this Annex A.
Number of Number of Number of Par or
Record Class of Authorized Issued Outstanding Liquidation
Issuer Owner Shares Shares Shares Shares Value
Medallion Taxi Medallion Common 100 100 100 .001
Media, Inc. Financial
Corp.