Exhibit 10.84
STOCK PLEDGE AGREEMENT
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DATED as of April 1, 2002
between
MEDALLION FUNDING 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.
TABLE OF CONTENTS
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Page
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1. Pledge of Stock, etc.....................................................................................1
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1.1 Pledge of Stock.................................................................................1
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1.2 Intercreditor Agreement.........................................................................1
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1.3 Additional Stock................................................................................1
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1.4 Pledge of Cash Collateral Account...............................................................2
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2. Definitions..............................................................................................2
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3. Security for Obligations.................................................................................2
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4. Liquidation, Recapitalization, etc.......................................................................3
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4.1 Distributions Paid to Collateral Agent..........................................................3
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4.2 Cash Collateral Account.........................................................................3
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4.3 Company's Rights to Cash Collateral, etc........................................................3
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5. Warranty of Title; Authority.............................................................................3
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6. Dividends, Voting, etc., Prior to Maturity...............................................................4
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7. Remedies.................................................................................................4
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7.1 In General......................................................................................4
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7.2 Sale of Stock Collateral........................................................................5
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7.3 Registration of Stock...........................................................................7
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7.4 Private Sales...................................................................................7
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7.5 Company's Agreements, etc.......................................................................8
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7.6 Waiver by Collateral Agent or Noteholders.......................................................8
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8. Release of Collateral; Subordination of Lien............................................................8
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9. Marshalling; Obligations Secured by Property Other Than Stock Collateral.................................9
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10. Company's Obligations Not Affected.......................................................................9
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11. Transfer, etc., by Company...............................................................................9
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12. Further Assurances.......................................................................................9
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13. Collateral Agent's Exoneration..........................................................................10
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14. Indemnity...............................................................................................11
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15. Collateral Agent May Perform; Actions of Collateral Agent...............................................11
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16. Collateral Agent's Duties...............................................................................11
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17. Resignation of Collateral Agent; Successor Collateral Agent.............................................12
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18. No Waiver, etc..........................................................................................12
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19. Notice, etc.............................................................................................13
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20. Termination.............................................................................................13
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21. Overdue Amounts.........................................................................................13
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22. Governing Law; Consent to Jurisdiction..................................................................13
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23. Waiver of Jury Trial....................................................................................13
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24. Miscellaneous...........................................................................................13
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STOCK PLEDGE AGREEMENT
----------------------
This STOCK PLEDGE AGREEMENT is made as of April 1, 2002, by and
between MEDALLION FUNDING CORP., a New York 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 (hereinafter, collectively, the "Noteholders") 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"), among Medallion
Funding Corp. and the Noteholders.
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");
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WHEREAS, it is a condition to the Third Amendment (as defined in the
Note Agreements) that the Company execute and deliver to the Collateral Agent,
for the benefit of the Noteholders and the Collateral Agent, a pledge agreement
in substantially the form hereof;
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:
1. Pledge of Stock, etc.
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Pledge of Stock. The Company hereby pledges, assigns, grants a security interest
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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
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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.
Intercreditor Agreement. The Collateral Agent, on behalf of the Noteholders,
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acknowledges and agrees that the Stock Collateral granted to the Collateral
Agent for the benefit of the Noteholders pursuant to this Agreement, 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.
Additional Stock. In case the Company shall acquire any additional shares of the
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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
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of the shares of capital stock or securities at the time pledged with the
Collateral Agent hereunder.
Pledge of Cash Collateral Account. The Company also hereby pledges, assigns,
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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.
Definitions. The term "Obligations" shall have the meaning provided therefor in
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the Company Security Agreement (as defined in the Note Agreements); all other
capitalized terms used herein without definition shall have the respective
meanings provided therefor in the Note Agreements. Terms used herein and not
defined in the Note Agreements or otherwise defined herein that are defined in
the Note Agreements have such defined meanings herein, unless the context
otherwise indicated or requires, and the following terms shall have the
following meanings:
Cash Collateral. See Section 4.
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Cash Collateral Account. See Section 4.
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Notes. As defined in the Note Agreements.
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Stock. The shares of stock described in Annex A attached hereto and
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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
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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 Section 6.
Time Deposits. See Section 4.
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Security for Obligations. This Agreement and the security interest in and pledge
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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.
2. Liquidation, Recapitalization, etc.
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Distributions Paid to Collateral Agent. Any sums or other property paid or
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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 Section 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
2
extent provided in Section 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.
Cash Collateral Account. All sums of money that are delivered to the Collateral
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Agent pursuant to this Section 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 the Collateral Agent after consultation with the Company,
provided, that, in each such case, arrangements satisfactory to the Collateral
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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."
Company's Rights to Cash Collateral, etc. Except as otherwise expressly provided
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in Section 15, 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.
Warranty of Title; Authority. The Company hereby represents and warrants that:
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(i) the Company has good and marketable title to, and is the sole record and
beneficial owner of, the Stock described in Section 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 Section 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,
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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
3
granted to the Collateral Agent hereunder and will likewise defend the rights,
pledge and security interest thereof and therein of the Noteholders.
Dividends, Voting, etc., Prior to Maturity. So long as no Default or Event of
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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,
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however, that no vote shall be cast or consent, waiver or ratification given by
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the Company if the effect 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 Loan Agreement or any of
the other Loan 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.
3. Remedies.
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In General. If a Default or an Event of Default shall have occurred and be
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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
4
(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.
(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.
Sale of Stock Collateral. In the event of any disposition of the Stock
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Collateral as provided in clause (c) of Section 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 Section
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,
following application of such proceeds in accordance with the terms of Section 5
of the Intercreditor Agreement 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
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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 its successors and assigns, or as a court of
competent jurisdiction may direct, of any surplus then remaining from such
proceeds.
5
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 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 the Company or Funding remains liable.
In making the determinations and allocations required by this Section
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 Section 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 Section 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 Section 7.2 hereof. Only after such applications,
and after payment by the Collateral Agent of any amount required by Sections
9-615(a)(3) and 9-615(b) 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, to the
extent permitted by law, waives and agrees not to assert any rights or
privileges which it may have under Sections 9-210, 9-620, 9-621, 9-623, and
9-625 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 agent may be a branch or affiliate of the Collateral
Agent or any Noteholder 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
6
been complied with, such Noteholder shall be deemed to hold such Stock
Collateral and proceeds in trust for the Collateral Agent.
Registration of Stock. If the Collateral Agent shall determine to exercise its
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right to sell any or all of the Stock pursuant to this Section 7, and if in the
opinion of counsel for the 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 Section 11(a) of the Securities Act.
Private Sales. The Company recognizes that the Collateral Agent may be unable to
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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 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 Section 11(a)
of the Securities Act.
7
Company's Agreements, etc. The Company further agrees to do or cause to be done
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all such other acts and things as may be reasonably necessary to make any sales
of any portion or all of the Stock pursuant to this Section 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 Section 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 Section 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.
Waiver by Collateral Agent or Noteholders. The Collateral Agent's or any
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Noteholder's failure at any time or times hereafter to require strict
performance by the Company or the Subsidiary 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 the Subsidiary specifying such waiver.
Release of Collateral; Subordination of Lien. To the extent permitted by the
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Note Agreements and the Intercreditor Agreement, the Collateral Agent, for the
benefit of the Noteholders, is hereby authorized, upon receipt of a request from
either the Company or the Subsidiary, 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
the Subsidiary indebtedness permitted by the terms of the Note Agreements.
8
Marshalling; Obligations Secured by Property Other Than Stock Collateral. None
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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.
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.
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 in this Agreement and in that certain Stock Pledge Agreement between the
Company and Fleet National Bank, as Agent, pursuant to that certain Amended and
Restated Loan Agreement dated as of December 24, 1991, as amended from time to
time.
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
9
all such other things as the Collateral Agent may reasonably request from time
to time in order to give full effect to this Agreement and to secure the rights
of the Noteholders hereunder, all without any cost or expense to the Collateral
Agent or any Noteholder. 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.
4. 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 any other Note
Agreements, or to intervene, file a petition, answer, motion or other pleading
in any suit or proceeding relating to this Agreement or any other Note
Agreements (including, without limitation, the interpretation or administration,
or the amendment, waiver or consent with respect to any term, of this Agreement
or any other Note Agreements), 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 the Company, any Person to whom the Company 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 Note Agreement, instrument or document
now or hereafter delivered to the Collateral Agent or any Noteholder by or for
the benefit of the Company, 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 secured by the Stock
Collateral.
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 Section 14 which shall not have been reimbursed or
paid by the Company 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 Section 14, to the extent the same shall not have been
reimbursed by the Company 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
10
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 Section 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.
Collateral Agent May Perform; Actions of Collateral Agent. If the Company 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 the Company, together with interest thereon at the rate specified in
the Note Agreements, 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
Agreements 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
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, 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.
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.
11
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 officer of the Collateral Agent active upon the
Company's accounts has actual knowledge that such Required Holders are not
entitled to give such notice.
5. Resignation of Collateral Agent; Successor Collateral Agent.
-----------------------------------------------------------
(a) The Collateral Agent may at any time resign by giving thirty
(30) days prior written notice thereof to each Noteholder, the Company and the
Subsidiary, provided that no resignation shall be effective until a successor
--------
for the Collateral Agent is appointed. Upon such resignation, 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 Agent's giving of
notice of resignation, then the retiring Collateral Agent may, on behalf of the
Required Holders, 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
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 Agent shall be discharged from its duties and
obligations hereunder. After any retiring Collateral Agent's resignation, 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.
(b) In the event a successor agent is appointed pursuant to the
provisions of the Note Agreements, such successor agent shall succeed to the
rights, powers and duties of the Collateral Agent hereunder, and the term
"Agent" shall mean such successor agent effective upon its appointment, and the
former Agent's rights, powers and duties as Agent shall be terminated, without
any other or further act or deed on the part of such former Agent or any of the
parties to the Note Agreements. Such former Agent agrees to take such actions as
are reasonably necessary to effectuate the transfer of its rights, powers and
duties to such successor agent.
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
12
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 or the Stock Collateral, and any and all other
notices and demands whatsoever (except as expressly provided herein or in the
Note Agreements).
Notice, etc. All notices, requests and other communications hereunder shall be
- -----------
made in the manner set forth in Section 18 of the Note Agreements.
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.
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 Loan Agreement.
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 Section 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.
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, the Collateral
Agent and the Noteholders are relying upon, among other things, the waivers and
certifications contained in this Section 23.
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
13
hereunder 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 Collateral
Agent and the Noteholders (and any such assignment without such consent shall be
null and void). The Company acknowledges receipt of a copy of this Agreement.
[Remainder of this page intentionally left blank]
14
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 FUNDING CORP.
By: /s/ Alvin Murstein
------------------------------
Alvin Murstein
President
By: /s/ James E. Jack
------------------------------
James E. Jack
Executive Vice President &
Chief Financial Officer
FLEET NATIONAL BANK, as Collateral
Agent
By: /s/ Jeffrey H. Robinson
------------------------------
Name: Jeffrey H. Robinson
Title: Senior Vice President
The undersigned Subsidiary hereby joins in the above Agreement for the
sole purpose of consenting to and being bound by the provisions of Sections 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 FUNDING CHICAGO CORP.
By: /s/ Alvin Murstein
------------------------------
Alvin Murstein
Chairman & Chief Executive Officer
By: /s/ James E. Jack
------------------------------
James E. Jack
Chief Financial Officer
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 Medallion Common 1000 1000 1000 $0.01
Funding Funding
Chicago Corp.
Corp.