Exhibit 10.83
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Guaranty
Dated as of April 1, 2002
by
Medallion Funding Chicago Corp.
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, as amended
and
$22,500,000 7.20% Senior Secured Notes, Series B
due September 1, 2004, as amended
of Medallion Funding Corp.
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Table of Contents
Section Heading Page
Section 1. Definitions.................................................................1
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Section 2. Guaranty of Payment and Performance.........................................2
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Section 3. Intercreditor Agreement.....................................................2
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Section 4. Guarantor's Agreement to Pay Enforcement Costs, etc.........................2
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Section 5. Waivers by Guarantor; Noteholders' Freedom to Act...........................3
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Section 6. Unenforceability of Obligations Against Borrower............................3
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Section 7. Subrogation; Subordination..................................................4
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Section 8. Setoff......................................................................4
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Section 9. Further Assurances..........................................................4
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Section 10. Release.....................................................................5
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Section 11. Termination; Reinstatement..................................................5
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Section 12. Successors and Assigns......................................................5
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Section 13. Amendments and Waivers......................................................5
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Section 14. Notices.....................................................................5
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Section 15. Governing Law; Consent to Jurisdiction......................................6
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Section 16. Waiver of Jury Trial........................................................6
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Section 17. Miscellaneous...............................................................6
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Guaranty, dated as of April 1, 2002 ("Guaranty"), by Medallion Funding
Chicago Corp., a Delaware 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
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 Guarantor is a wholly-owned subsidiary of the Borrower,
the success of which may impact the success of the Guarantor;
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 Third Amendment
to the Note Agreements 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:
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 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 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.
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 Section 362(a) of the
Federal Bankruptcy Code and the operation of Section.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 1. Intercreditor Agreement.
The Noteholders acknowledge and agree that this Guaranty granted for the benefit
of the Noteholders, shall constitute "Collateral" as defined in the
Intercreditor Agreement and shall be subject to the provisions of the
Intercreditor Agreement for so long as the Intercreditor Agreement may be in
effect.
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 Section 4 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 interests shall be reduced to such maximum permitted
amount.
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Waivers by Guarantor; Noteholders' 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 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.
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, all such amounts otherwise subject to acceleration under the
terms of the Note Agreements, the other Note
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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 2. Subrogation; Subordination.
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.
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.
Provisions Supplemental. The provisions of this Section.7 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.
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.
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 Noteholders
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
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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.
Release. Notwithstanding any provision of this Guaranty to the contrary, this
Guaranty shall not be released without the prior written consent of the Required
Holders.
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
Section 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 Sections.5 and 7, 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.
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 Section 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).
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 right hereunder preclude any other or further exercise
thereof or the exercise of any other right.
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
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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.
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 14.
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.
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 (i) 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.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 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.
[Remainder of page intentionally left blank]
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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 Funding Chicago Corp.
By: /s/ Alvin Murstein
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Alvin. Murstein
Chairman & Chief Executive Officer
By: /s/ James E. Jack
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James. E. Jack
Chief Financial Officer
Address: