EXHIBIT 10.5
Intercreditor Agreement
This Intercreditor Agreement (as amended, supplemented or otherwise
modified from time to time, this "Agreement"), dated as of June 1, 1999, among
(a) Fleet Bank, N.A. ("Fleet"), acting in its capacity as agent (in such
capacity, the "Bank Agent") for and on behalf of the various financial
institutions (collectively, the "Banks") which are, or may from time to time
hereafter become, parties to the Loan Agreement, (b) the Banks, (c) the Senior
Noteholders (as hereinafter defined), (d) Fleet, acting as collateral agent to
the Senior Noteholders (the "Senior Note Collateral Agent") and (e) Fleet,
acting in its individual capacity for purposes of clause (a) of Section 6 and
otherwise in its capacity as intercreditor collateral agent for the Senior
Creditors (together with its successors and assigns, the "Collateral Agent").
Witnesseth:
Whereas, Medallion Funding Corp. (the "Borrower"), as the borrower,
the Banks, the Bank Agent and The Bank of New York as documentation agent have
entered into an Amended and Restated Loan Agreement dated as of December 24,
1997, as amended as of February 5, 1998, December 11, 1998 and June 1, 1999
(said agreement, as it may hereafter be amended, supplemented, restated or
otherwise modified from time to time, being the "Loan Agreement"); and
Whereas, the Borrower also issues commercial paper from time to time,
and has secured its obligations to the Banks and to the holders of its
commercial paper and the paying agent for such holders under and pursuant to an
Amended and Restated Security Agreement dated as of December 24, 1997, between
the Borrower and the Bank Agent (said agreement, as previously amended and as it
may hereafter be amended, supplemented or otherwise modified from time to time,
being the "Bank Security Agreement"); and
Whereas, pursuant to the separate and several Note Purchase
Agreements, each dated as of June 1, 1999 (as each of such agreements may be
amended, supplemented or otherwise modified from time to time, collectively, the
"Note Purchase Agreements"), between the Borrower and the Purchasers of the
Senior Notes named therein (such Purchasers, together with all subsequent
holders of the Senior Notes collectively referred to herein as the "Senior
Noteholders"), the Senior Noteholders are, concurrently with the execution and
delivery of this Agreement, purchasing the Senior Notes from the Borrower;
Whereas, in connection with the agreements made among the parties
hereto relating to the making by the Banks of Loans under the Loan Agreement and
the issuance by the Borrower and the purchase by the Senior Noteholders of the
Senior Notes under the Note Purchase Agreements, the Banks and the Senior
Noteholders desire to establish among themselves their relative rights, remedies
and priorities with respect to the Collateral;
Now, Therefore, the parties hereto hereby agree as follows:
Section 1. Definitions.
(a) Defined Terms. The following terms when used in this Agreement,
including its preamble and recitals, shall, except where the context otherwise
requires, have the following meanings (such meanings to be equally applicable to
the singular and plural forms thereof):
"Additional Senior Agreements" means all agreements pursuant to which any
Additional Senior Obligations shall be issued.
"Additional Senior Creditors" means all holders of any Additional Senior
Obligations who shall have executed and delivered an Addendum hereto in the form
of Exhibit A attached hereto.
"Additional Senior Obligations" means all obligations, other than the Loan
Agreement Obligations and the Senior Note Obligations, in respect of other
secured indebtedness of the Borrower for borrowed money or evidenced by notes,
bonds, debentures or similar evidences of indebtedness of the Borrower, which in
each case is not expressly subordinate to any other indebtedness of the
Borrower, which is held by an Additional Senior Creditor and which is permitted
pursuant to Section 21 hereof.
"Agreement" is defined in the preamble.
"Banks" is defined in the preamble and shall in any event include any
assignee, successor, transferee or refinancing or refunding party of any person
that is a party to the Loan Agreement and all other assignees, transferees or
participants which from and after the date hereof become parties to the Loan
Agreement.
"Borrower" is defined in the first recital.
"Collateral" means, collectively, "Collateral" as that term is defined in
each of the Security Documents and all other collateral or security granted by
the Borrower or any subsidiary or affiliate thereof (including, without
limitation, all mortgaged property conveyed under any instrument of conveyance
of an interest in real property, whether or not specifically defined as
"Mortgaged Property") to secure Loan Agreement Obligations, CP Debt, Senior Note
Obligations and/or Additional Senior Obligations.
"Collateral Agent" is defined in the preamble.
"Commercial Paper" means any and all commercial paper issued by the
Borrower from time to time pursuant to a Commercial Paper Dealer Agreement and a
Paying Agency Agreement.
"Commercial Paper Dealer Agreement" means one or more commercial paper
dealer agreements between the Borrower and a dealer for the issuance and sale of
Commercial Paper by the Borrower, as the same shall be amended from time to
time, each as approved in accordance with the Loan Agreement.
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"CP Debt" means all indebtedness from the Borrower to the CP Holders from
time to time outstanding.
"CP Debt Payment Event of Default" means that the CP Debt shall not have
been paid when due and ten Business Days shall have elapsed from the date on
which the Paying Agent gave written notice to the Bank Agent to such effect, in
accordance with the Bank Security Agreement.
"CP Holders" means the holders from time to time of outstanding Commercial
Paper issued by the Borrower.
"Financing Documents" means the collective reference to this Agreement, the
Loan Documents, the Note Documents and the Additional Senior Agreements.
"Loan Agreement" is defined in the first recital.
"Loan Agreement Obligations" means the principal of and interest on the
Notes, all fees, breakage costs and all other obligations owing by the Borrower
under the Loan Documents.
"Loan Documents" is defined in the Loan Agreement.
"Loans" means the collective reference to the Revolving Credit Loans, the
Swingline Loans and the Term Loan as such terms are defined in the Loan
Agreement.
"Make-Whole Amount" is defined in the Note Purchase Agreements.
"Note Purchase Agreements" is defined in the third recital.
"Note Documents" is defined in the Note Purchase Agreements.
"Notes" is defined in the Loan Agreement.
"Paying Agency Agreement" means one or more issuing and paying agency
agreements between the Borrower and one or more paying agents acting as paying
agent thereunder providing for the issuance of Commercial Paper by the Borrower,
as the same shall be amended from time to time, each approved in accordance with
the terms of the Loan Agreement.
"Pro Rata Share" of each Senior Creditor means, as at any time of
determination, a ratio (a) the numerator of which is the aggregate amount of
Senior Obligations owing to such Senior Creditor that is comprised of (i) in the
case of a Senior Creditor that is a Bank, the outstanding principal and accrued
interest with respect to such Bank's Notes and (ii) in the case of a Senior
Creditor that is a Senior Noteholder, the outstanding principal and accrued
interest with respect to such Senior Noteholders' Senior Notes and (iii) in the
case of ▇▇ ▇▇▇▇▇▇, such ▇▇ ▇▇▇▇▇▇'▇ CP Debt, and (iv) in the case of an
Additional Senior Creditor, the outstanding principal and accrued interest with
respect to such Additional Senior Creditor's Additional Senior Obligations
(excluding, for the purposes of any determination under clause (i), clause (ii),
clause (iii) and clause (iv) of this clause (a), any fees, expenses,
indemnities, premiums, Make-Whole Amounts or
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other Loan Agreement Obligations, Senior Note Obligations, obligations in
respect of CP Debt or Additional Senior Obligations regardless of how
characterized, as the case may be) and (b) the denominator of which is the
aggregate outstanding amount of principal and accrued interest with respect to
all the Senior Obligations (excluding, for the purposes of any determination
under this clause (b), fees, expenses, indemnities, premiums, Make-Whole Amounts
and other Loan Agreement Obligations, Senior Note Obligations and obligations in
respect of the CP Debt and Additional Senior Obligations regardless of how
characterized, as the case may be).
"Purchaser" is defined in Section 1.1 of the Note Purchase Agreements.
"Required Additional Creditors" shall mean such percentage of Additional
Senior Creditors as are required to amend such Additional Senior Creditors'
Additional Senior Agreements.
"Required Banks" is defined in the Loan Agreement.
"Required Noteholders" is defined in the Note Purchase Agreement.
"Required Senior Creditors" means the Required Noteholders, the Required
Banks, the Bank Agent on behalf of the CP Holders and each group of Required
Additional Creditors; provided, however, that (i) for the purposes of Sections 3
and 6, if and so long as the Borrower is in default in respect of principal or
interest due and owing to one class of Senior Creditors and such class wishes to
pursue its remedies under the Security Documents to which it is a party and
either (a) no default exists with respect to any other class of Senior Creditors
or (b) such defaults as exist with respect to any other class of Senior
Creditors are non-payment defaults and each such other class does not wish to
exercise remedies under the Security Documents to which it is a party, "Required
Senior Creditors" shall mean the Required Banks if the Banks and the CP Holders
are the class with respect to which a payment default exists, the Required
Noteholders, if the Senior Noteholders are the class with respect to which a
payment default exists, or the Required Additional Creditors, if the Additional
Senior Creditors are the class with respect to which a payment default exists,
as the case may be, and (ii) at any time during which the Collateral Agent has
knowledge that a Triggering Event has occurred and is continuing, "Required
Senior Creditors" shall mean the holders of at least 51% in aggregate principal
amount of the Senior Obligations.
"Security Documents" means the collective reference to all security
agreements, mortgages, pledge agreements, concentration account agreements and
leasehold mortgages and each other security or collateral document that may from
time to time be delivered to the Collateral Agent in connection herewith or
therewith or in connection with, or to secure any obligations of any obligor
under, any Financing Document.
"Senior Creditors" means, collectively, the Banks, the Senior Noteholders,
the Bank Agent on behalf of the CP Holders and all Additional Senior Creditors.
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"Senior Note Obligations" means the principal of and interest on the Senior
Notes and all other obligations (including, without limitation, fees, premiums
and the Make-Whole Amount, if any) owing by the obligors under the Note
Documents.
"Senior Noteholders" is defined in the third recital.
"Senior Notes" means "Notes" as that term is defined in the Note Purchase
Agreements.
"Senior Obligations" means, collectively, the Loan Agreement Obligations,
the Senior Note Obligations, the CP Debt and all Additional Senior Obligations.
"Triggering Event" shall mean (i) any payment default described in Sections
11(a) or (b) of the Note Purchase Agreements and Section 9.1(a) of the Loan
Agreement and a CP Debt Payment Event of Default and a payment default under
each Additional Senior Obligation, (ii) any bankruptcy default by the Company
under Sections 11(g) or (h) of the Note Purchase Agreements and a bankruptcy
default under Section 9.1(h) or (i) of the Loan Agreement and a similar default
under each Additional Senior Obligation or (iii) any other default which results
in the acceleration of the Senior Notes under the Note Purchase Agreements and
the acceleration of the Loans or the Notes under the Loan Agreement,
acceleration of the CP Debt and acceleration of each other Additional Senior
Obligation.
(b) Use of Certain Defined Terms. For the purposes of this Agreement, and
without limiting the right of the Company to enter into amendments or
modifications of the Note Purchase Agreements or the Loan Agreement to the
extent permitted by the Financing Documents, references herein to the Note
Purchase Agreements and the Loan Agreement shall mean the Note Purchase
Agreements and the Loan Agreement as of the date hereof without giving effect to
any subsequent amendment or modification (except as agreed to by the Required
Senior Creditors).
Section 2. Limitation of Rights of Senior Creditors.
Each of the Senior Note Collateral Agent and each of the Senior
Noteholders, hereby for itself (and its successors and assigns) severally agrees
that such individual Senior Noteholder shall have no right to foreclose upon
(either pursuant to the Security Documents or otherwise) or exercise any other
material rights or remedies in respect of the Collateral (including, without
limitation thereof, any Collateral consisting of current assets (including
proceeds thereof) of the Borrower or of any other obligor of Senior Obligations)
in a manner inconsistent with, or otherwise contrary to the terms of, this
Agreement. Each of the Bank Agent (on behalf of itself and the CP Holders) and
the Banks (on behalf of themselves and their respective successors and assigns)
severally agrees that neither the Bank Agent nor any individual Bank shall have
the right to foreclose upon (either pursuant to the Security Documents or
otherwise) or exercise any other material rights or remedies in respect of the
Collateral (including, without limitation thereof, any Collateral consisting of
current assets (including proceeds thereof) of the Borrower or of any other
obligor of Senior Obligations) in a manner inconsistent with, or otherwise
contrary to the terms of, this Agreement. Each Additional Senior Creditor,
hereby for itself (and its successors and assigns) severally agrees that such
individual Additional Senior Creditor shall have no right to foreclose upon
(either pursuant to the Security Documents or otherwise) or exercise any other
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material rights or remedies in respect of the Collateral (including, without
limitation thereof, any Collateral consisting of current assets (including
proceeds thereof) of the Borrower or of any other obligor of Senior Obligations)
in a manner inconsistent with, or otherwise contrary to the terms of, this
Agreement.
The Senior Creditors, the Bank Agent, the Senior Note Collateral Agent and
the Collateral Agent acknowledge and agree that the liens of the Security
Documents secure, on a pari passu basis, all of the Senior Obligations, without
preference or priority to the Banks, the CP Holders, the Senior Noteholders or
the Additional Senior Creditors, regardless of (i) the failure of any party to
make proper and timely filings or recordations, (ii) the place or timing of any
filing or recordation, (iii) the timing or amount of any disbursement or advance
under the Loan Agreement, the Note Purchase Agreements or any Additional Senior
Agreement or (iv) any other reason.
The Banks agree that they shall not, without prior notice to the Senior
Noteholders and without the prior written consent of the Required Noteholders,
amend or revise the Credit Agreement in any manner that would (i) decrease the
required Minimum Asset Coverage (as defined in the Loan Agreement as in effect
on the date hereof) below 1.15, or (ii) modify any required payment dates so as
to reduce the average life of the Loans. The Noteholders agree that they shall
not, without prior written notice to the Senior Creditors and without the prior
written consent of the Required Banks, amend or revise any Note Purchase
Agreements in any manner that would increase the principal amount of or the rate
of interest on, the Senior Notes, increase the Make-Whole Amount, increase the
dollar limitation set forth in Section 10.2 of the Note Purchase Agreements,
decrease the ratio set forth in Section 10.3 of the Note Purchase Agreements,
increase the ratio set forth in Sections 10.4 or 10.5 of the Note Purchase
Agreements or modify any required payment dates so as to reduce the average life
of the Senior Notes.
Section 3. Direction of Action.
The Collateral Agent shall, subject to Section 6, make such demands and
give such notices under the Security Documents as the Required Senior Creditors
may direct in writing, and shall take such actions to enforce the Security
Documents and to foreclose upon, collect, sell, transfer, substitute or
otherwise dispose of all or any portion of the Collateral as may be directed in
writing by the Required Senior Creditors. All such written directions shall be
binding upon the Bank Agent and each Senior Creditor for all purposes and the
Collateral Agent shall not take any action (including any foreclosure action)
unless directed in writing to do so by the Required Senior Creditors. No Senior
Creditor shall have any right to exercise, individually, any material rights or
remedies under the Security Documents, it being understood and agreed that all
of such rights and remedies shall be exercised solely by and through the
Collateral Agent pursuant to the terms and provisions hereof. If the Required
Senior Creditors shall direct in writing the Collateral Agent to foreclose upon,
collect, sell, transfer, substitute or otherwise dispose of all or any part of
the Collateral, the Collateral Agent shall do so as provided in and pursuant to
any of the Security Documents.
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Nothing set forth in this Section 3, however, shall be construed to qualify
or otherwise limit the right of any Senior Creditor to declare such Senior
Creditor's Senior Obligations to be due and payable in accordance with the Loan
Agreement or the Note Purchase Agreements, as the case may be, or to make demand
in respect of any guarantee of any Senior Obligations, provided that no such
Senior Creditor shall be entitled to exercise any right or remedy with respect
to the Collateral or pursuant to the Security Documents except in accordance
with the provisions of this Agreement.
Section 4. Release or Substitution of Collateral.
The Collateral Agent is hereby authorized, at any time and from time to
time, to release or substitute any portion of the Collateral or terminate the
lien on the Collateral granted pursuant to the Security Documents (i) in the
ordinary course in the manner contemplated by the Financing Documents, or (ii)
in accordance with the Financing Documents, provided that if such release,
substitution or termination would cause a default under Section 7.3 of the Loan
Agreement but not under Section 10.6 of the Note Purchase Agreements, with the
consent of all Banks, provided, further if such release would cause a default
under Section 10.6 of the Note Purchase Agreements, with the consent of the
Banks and the Required Noteholders and (iii) in accordance with and upon receipt
of instructions from the Required Senior Creditors, provided that (a) the
Collateral Agent is not authorized to release Collateral so long as there is a
default under Section 10.6 of the Note Purchase Agreements or under Section 7.3
of the Loan Agreement and (b) the Collateral Agent is not authorized to release
all or substantially all of the Collateral or terminate the lien on all or
substantially all of the Collateral unless the Collateral Agent has received
instruction from all Senior Creditors. The Collateral Agent shall in all cases
be fully protected in acting, or in refraining from acting, hereunder in
accordance with instructions of the Required Senior Creditors (or all Senior
Creditors, if specifically required by the terms of this Agreement) and such
instructions and any action or refraining from action pursuant thereto shall be
binding upon all Senior Creditors and their successors and assigns. Any such
release or substitution of the Collateral will automatically and without the
requirement of the giving of any notice or the taking of any action release all
liens on such Collateral and any transferee of such Collateral shall take such
Collateral free and clear of all such liens. The Collateral Agent and the
Senior Creditors agree that such release or substitution in accordance with the
immediately preceding sentence shall be binding and conclusive upon them and
their successors and assigns and hereby waive all rights and claims with respect
to any such release or substitution; provided, however, that the Collateral
Agent and the Senior Creditors shall have a continuing security interest in any
proceeds from the release or substitution of any of the Collateral and shall be
entitled to receive such proceeds in accordance with Section 5.
Section 5. Application of Proceeds.
(a) Upon (x) the receipt of any proceeds or awards arising from any
condemnation or eminent domain proceedings concerning the Collateral, (y) the
receipt of any insurance proceeds arising from damage to the Collateral by fire
or any other casualty which are not used for restoration of the Collateral in
accordance with the terms of the Security Document governing same or (z) the
exercise of any rights and remedies by the Collateral Agent under the Security
Documents, any and all proceeds from the sale, foreclosure or other disposition
of Collateral
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pursuant thereto shall, promptly following their receipt by the Collateral
Agent, be applied and distributed by the Collateral Agent as follows:
(i) First, to the payment of all costs, expenses, liabilities
and advances made or incurred by the Collateral Agent (in its capacity as
Collateral Agent and not as Bank Agent or a Bank) in connection with such
proceedings, adjustments, sale, foreclosure or other disposition and in
performing its duties hereunder, including compensation payable to the
Collateral Agent and the costs, expenses and compensation of agents and
legal counsel (appointed, in each case, with the written consent of the
Required Senior Creditors) to the Collateral Agent;
(ii) Second, to the extent proceeds remain after payment in full
of those items specified in clause (i) above, to the payment of Senior
Obligations consisting of principal and interest (excluding default-rate
interest), to be allocated among each Senior Creditor (according to the Pro
Rata Share of each such Senior Creditor) until all such Senior Obligations
are paid in full;
(iii) Third, to the extent any proceeds remain after payment in
full of those items specified in clauses (i) and (ii) above, to the payment
of the remaining Senior Obligations, to be allocated among each Senior
Creditor (on a pro rata basis based on the unpaid amount of such remaining
Senior Obligations) until all remaining Senior Obligations are paid in
full; and
(iv) Fourth, to the extent any proceeds remain after payment in
full of those items specified in clauses (i), (ii) and (iii) above, such
proceeds shall be paid to or at the direction of the Borrower or as a court
of competent jurisdiction shall direct.
(b) Payment by the Collateral Agent to the Banks in respect of the Loan
Agreement Obligations shall be made to the Bank Agent for distribution to the
Banks in accordance with the Loan Agreement. Payments by the Collateral Agent
to the Senior Noteholders shall be made in accordance with the terms of the Note
Purchase Agreements. Payments by the Collateral Agent to the CP Holders in
respect of the CP Debt shall be made to the Bank Agent for distribution to the
CP Holders. Payments by the Collateral Agent to any Additional Senior Creditor
shall be made in accordance with written instructions from such Additional
Senior Creditor.
(c) The Bank Agent (on its own behalf and on behalf of the CP Holders),
the Senior Note Collateral Agent, each Bank, each Senior Noteholder signatory
hereto, and each Additional Senior Creditor hereby agrees that (i) if at any
time it shall receive the proceeds of any Collateral, or shall apply any
balances, credits, deposits, accounts or monies with or on deposit with such
Bank Agent, Senior Note Collateral Agent, Bank, Senior Noteholder or Additional
Senior Creditor, through the exercise of any right of set-off, banker's lien,
counterclaim or other similar right, whether pursuant to Section 10.9 of the
Loan Agreement or otherwise, (other than through application by the Collateral
Agent in accordance with clauses (a) and (b) of this Section 5), it shall
promptly turn the same over to the Collateral Agent for application in
accordance with said clauses (a) and (b) and (ii) it will not take or cause to
be taken any action, including, without limitation, the commencement of any
legal or equitable proceedings, the purpose of which is to
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give such Bank Agent, Bank, Senior Noteholder, any ▇▇ ▇▇▇▇▇▇ or Additional
Senior Creditor any preference or priority against the other parties hereto with
respect to the Collateral.
Section 6. Concerning the Collateral Agent.
(a) The Bank Agent (on its own behalf and on behalf of the CP Holders),
the Banks, the Senior Note Collateral Agent and each Senior Noteholder signatory
hereto, on its own behalf and on behalf of each subsequent holder of the Notes
and the Senior Notes and each Additional Senior Creditor, authorizes the
Collateral Agent to act on its and each such holder's behalf under this
Agreement and under the Security Documents pursuant to the provisions hereof and
thereof. The Collateral Agent accepts its appointment as collateral agent
hereunder and, subject to clause (b) below, agrees to act in accordance with the
terms hereof and the directions from time to time given to it by the Required
Senior Creditors as contemplated hereby.
(b) The Collateral Agent shall not take any action, or prosecute or be
required to defend any suit with respect to this Agreement or the Security
Documents, (A) except as specified in a direction from the Required Senior
Creditors and (B) unless it shall have received a written or other assurance,
reasonably satisfactory to it, from the Senior Creditors joining in such
direction as to its indemnification from and against any and all liabilities,
obligations, losses, damages, penalties, judgments, suits, costs, expenses,
charges or disbursements (not including for this purpose, however, any amounts
in respect of fees or other remuneration for its services in so acting as
Collateral Agent) of any kind or nature whatsoever which may at any time be
imposed on, incurred by or asserted against the Collateral Agent in any way
relating to or arising out of actions taken by it in accordance with such
direction. The Senior Creditors agree to indemnify the Collateral Agent in its
capacity as such (to the extent not reimbursed by the Borrower and without
limiting the obligation of the Borrower to do so), ratably according to the
respective amounts of their commitments (which, in the case of a Senior
Noteholder, shall be the unpaid principal amount of its Senior Notes), from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind
whatsoever which may at any time (including without limitation at any time
following the payment of the Notes and the Senior Notes) be imposed on, incurred
by or asserted against the Collateral Agent in any way relating to or arising
out of this Agreement, the Security Documents, or any documents contemplated by
or referred to herein or therein or the transactions contemplated hereby or
thereby or any action taken or omitted by the Collateral Agent, as the case may
be, under or in connection with any of the foregoing; provided that no Senior
Creditor shall be liable for the payment of any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting solely from the Collateral Agent's gross
negligence or willful misconduct. The agreements in this subsection shall
survive the payment of all Senior Obligations.
(c) Neither the Collateral Agent nor any of its directors, officers,
employees, or agents
(i) shall be liable to any Senior Creditor for any action taken
or omitted to be taken by it under this Agreement or the Security Documents
or in connection therewith, except for its own willful misconduct or gross
negligence,
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(ii) shall be responsible for any recitals or representations or
warranties in this Agreement or the Security Documents, or for the
effectiveness, enforceability, validity, or due execution of this Agreement
or the Security Documents, including the liens purportedly created by the
Security Documents, or
(iii) shall be obligated to make any inquiry with respect to the
performance by the Borrower or any of its subsidiaries of its obligations
hereunder or thereunder.
The Collateral Agent shall be entitled to rely upon advice of counsel concerning
legal matters and upon any notice, consent, certificate, statement, or writing
which it believes to be genuine and to have been presented by a proper person.
Except as is expressly set forth herein, the Collateral Agent shall have no duty
or responsibility to, or be considered in a fiduciary relationship with, any
Senior Creditor and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or otherwise exist
against the Collateral Agent. The Collateral Agent may deem and treat the payee
of any Senior Note as the owner thereof for all purposes unless a written notice
of assignment, negotiation or transfer shall have been filed with the Collateral
Agent.
(d) The Collateral Agent may (i) be removed upon at least 30 days' prior
notice to the Collateral Agent provided or consented to by the Required Senior
Creditors or (ii) resign upon at least 30 days' prior notice to the Senior
Creditors, in each such case subject to the acceptance and appointment of a
successor Collateral Agent approved by the Required Senior Creditors. If the
Collateral Agent shall resign and the Required Senior Creditors have not
appointed within 30 days after their receipt of the notice of resignation a
successor Collateral Agent, the resigning Collateral Agent may, without the
consent of the Required Senior Creditors, appoint a successor Collateral Agent.
The Collateral Agent agrees to cooperate with the Senior Creditors in locating
and appointing a successor Collateral Agent following its removal or
resignation. Any successor Collateral Agent, whether appointed by the Required
Senior Creditors or the resigning Collateral Agent, shall be a nationally
recognized commercial banking institution or trust institution organized in the
United States of America (or any state thereof) or a U.S. branch or agency of a
foreign commercial banking institution if such successor Collateral Agent is a
holder of a Note, and having in each case a combined capital and surplus and
undivided profits of not less than $500,000,000. A removal of or a resignation
of the Collateral Agent and the appointment of a successor Collateral Agent
shall become effective upon receipt of acceptance by the successor Collateral
Agent of its appointment by the Required Senior Creditors or resigning
Collateral Agent, as the case may be. Upon the acceptance of any appointment as
Collateral Agent by a successor Collateral Agent, such successor Collateral
Agent shall thereupon become the Collateral Agent hereunder and under the
Security Documents and shall be entitled to receive from the retiring Collateral
Agent such documents of transfer and assignment as such successor Collateral
Agent may reasonably request, and the retiring Collateral Agent shall be
discharged from its duties and obligations under this Agreement and the Security
Documents.
(e) The parties hereto waive any conflict resulting from Fleet acting as
(i) the Senior Note Collateral Agent under the Note Documents to which it is a
party, (ii) the Bank Agent under the Loan Documents to which it is a party and
(iii) the Collateral Agent under this Intercreditor Agreement.
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Section 7. [Reserved].
Section 8. Representations and Warranties.
(a) Neither the Collateral Agent, the Bank Agent, the Senior Note
Collateral Agent nor any Senior Creditor makes any representation or warranty to
any other party hereto with respect to the effectiveness, enforceability,
validity or due execution of the Security Documents or as to any of the
Collateral.
(b) Each Senior Creditor represents, warrants and covenants that it has
not and will not have or accept any security, collateral or other credit
enhancement from the Borrower or any subsidiary or affiliate thereof with
respect to any of the Senior Obligations without making adequate provision to
cause such security, collateral or credit enhancement to be subject to the terms
and provisions hereof.
Section 9. Notices.
All notices, requests and other communications (including directions and
instructions by the Senior Creditors to the Collateral Agent) provided for
hereunder shall be in writing and personally delivered, mailed or telecopied
(all telecopier notices promptly to be confirmed by mail or courier notice) or
delivered,
(a) if to the Bank Agent, at its address or telecopier number
specified in the Loan Agreement,
(b) if to the Collateral Agent or the Senior Note Collateral Agent,
at its address or telecopier number specified on the signature page hereof,
or at such other address or telecopier number as it may designate by notice
as herein provided to the Bank Agent and the holders of the Senior Notes,
(c) if to any Senior Noteholder, at the address or telecopier number
provided for in Schedule A to the Note Purchase Agreements, and
(d) if to any Additional Senior Creditor, at its address (or to the
telecopier or telex number) specified in the Additional Senior Agreement
between it and the Borrower.
All such notices and communications shall be effective when received. Each
Senior Creditor which shall make any change in its notice information shall
promptly furnish the Collateral Agent with such correct notice information.
Upon becoming a Senior Noteholder, such Senior Noteholder shall promptly deliver
in writing to the Collateral Agent the notice information described above. In
the absence of such notice from a Senior Noteholder the Collateral Agent shall
be entitled to rely upon a certificate of the Borrower as to such matters.
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Section 10. Benefit of Agreement; Obligations Several; Execution by the Agent.
This Agreement shall be binding upon and inure to the benefit of and be
enforceable by the Bank Agent, each Bank, each Senior Noteholder, each
Additional Senior Creditor, the Collateral Agent and their respective successors
and assigns, and is not for the benefit of any third party beneficiary. The
obligations of each party under this Agreement are several and not joint, it
being expressly agreed that no party shall be liable for the failure of any
other party to perform its obligations hereunder. The Bank Agent hereby
confirms that it has been authorized to enter into this Agreement on behalf of
the Banks pursuant to the Loan Agreement.
Section 11. Counterparts.
This Agreement may be executed in any number of counterparts and by the
different parties hereto on separate counterparts, each of which when so
executed and delivered shall be an original, but all of which shall together
constitute one and the same instrument.
Section 12. Effectiveness.
This Agreement shall become effective when copies hereof executed by the
Collateral Agent, the Bank Agent, the Banks and the Senior Noteholders shall
have been delivered to the Collateral Agent.
Section 13. Headings Descriptive.
The headings of the several sections of this Agreement are inserted for
convenience only and shall not in any way affect the meaning or construction of
any provisions of this Agreement.
Section 14. Amendment or Waiver.
This Agreement may be amended, supplemented, amended and restated,
otherwise modified, waived, discharged or terminated only with the written
consent of the Collateral Agent, the Bank Agent and the Senior Creditors.
Section 15. Inconsistent Provisions.
If any provision of this Agreement shall be inconsistent with, or contrary
to, any provision in any Financing Document or any document entered into in
connection therewith, the provision in this Agreement shall be controlling and
shall supersede such inconsistent provision to the extent necessary to give full
effect to all provisions contained in this Agreement.
Section 16. Governing Law.
This Agreement and the Rights and Obligations of the Parties hereunder
shall be construed in Accordance with and be Governed by the Law of the State of
New York. This Agreement Constitutes the Entire Understanding among the Parties
-12-
hereto with Respect to the Subject Matter hereof and Supersedes Any Prior
Agreements, Written or Oral, with Respect Thereto.
Section 17. Waiver of Jury Trial.
Each Party hereto hereby waives its right to a trial by jury in respect of
any litigation based hereon, or arising out of, under, or in connection with,
this Agreement. Each Party herein acknowledges and agrees that it has received
full and sufficient consideration for this provision and that this provision is
a material inducement for the Agent and the Banks entering into the Loan
Agreement and the Senior Noteholders entering into the Note Purchase Agreements.
Section 18. Forum Selection and Consent to Jurisdiction.
Any Litigation based hereon, or arising out of, under, or in connection
with, this Agreement may be brought and maintained in the Courts of the State of
New York or in the United States District Court for the Southern District of New
York. Each Party herein expressly and irrevocably submits to the Non-Exclusive
Personal Jurisdiction of the Courts of the State of New York and of the United
States District Court for the Southern District of New York. Each Party hereto
further irrevocably consents to the service of process by registered mail,
postage prepaid, or by personal service within or without the State of New York.
Each Party hereto hereby expressly and irrevocably waives, to the fullest extent
permitted by law, any objection which it may have or hereafter may have to the
laying of venue of any such litigation brought in any such Court referred to
Above and any claim that any such litigation has been brought in an inconvenient
forum. To the extent that any Party herein has or hereafter may require any
immunity from jurisdiction of any Court or from any legal process (whether
through Service or Notice, Attachment prior to judgment, attachment in aid of
execution or otherwise) with respect to itself or its property, such Party
hereby irrevocably waives such immunity in respect of its obligations under this
Agreement.
Section 19. Notification of Default.
The Collateral Agent shall not be deemed to have knowledge or notice of the
occurrence of any Triggering Event or any default under any document, agreement
or instrument evidencing or governing any Senior Obligations unless the
Collateral Agent shall have actual knowledge thereof or shall have received
notice from any Senior Creditor holding a Senior Obligation with respect to
which such Triggering Event or default exists, describing such event and stating
that such notice is a "Notice of Triggering Event" or "Notice of Default," as
the case may be.
If the Collateral Agent has been notified in writing by a party to any
Financing Document that a default or an event of default has occurred under such
Financing Document, or that such Financing Document has been amended, the
Collateral Agent shall notify the Bank Agent and each Senior Creditor of such
determination. The Bank Agent or any Senior Creditor which receives written
notice from the Borrower or any other obligor of Senior Obligations that a
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Triggering Event or a default or an event of default has occurred under a
Financing Document, or has actual knowledge of a Triggering Event or a default
or event of default under a Financing Document or an amendment or modification
thereof, shall deliver to the Collateral Agent a copy of such notice from the
Borrower or any other obligor of Senior Obligations or a written statement as to
the existence of such Triggering Event or a default or event of default or such
amendment or modification. Failure to do so, however, does not constitute a
waiver of any default or event of default by the Senior Creditors and shall not
affect the relative rights among Senior Creditors. Upon receipt of such copy or
such notice, the Collateral Agent shall promptly (and in any event no later than
three business days after receipt of such notice) notify the Bank Agent and each
Senior Creditor of such Triggering Event, default or event of default or such
amendment or modification.
Section 20. Continuation of Certain Agreements.
It is specifically acknowledged and agreed that the termination and/or
expiration of the Loan Agreement shall not, in and of itself, constitute any
termination, expiration or release of any of the Security Documents or
provisions of the Loan Agreement which relate to the Senior Notes, which
Security Documents and other provisions of the Loan Agreement shall remain in
full force and effect until all Senior Obligations have been fully and
indefeasibly paid and performed.
It is specifically acknowledged and agreed that the termination and/or
expiration of the Note Purchase Agreements shall not, in and of itself,
constitute any termination, expiration or release of any of the Security
Documents or provisions of the Note Purchase Agreements which relate to the
Banks' Loans, which Security Documents and other provisions of the Note Purchase
Agreements shall remain in full force and effect until all Senior Obligations
have been fully and indefeasibly paid and performed.
Section 21. Execution of Addendums to this Agreement.
The Bank, each Senior Creditor and each Additional Senior Creditor hereby
authorize the Collateral Agent to execute and deliver an Addendum hereto
substantially in the form of Exhibit A hereto (including such conforming changes
as are reasonably required by the Required Senior Creditors) with each
Additional Senior Creditor; provided, that the Borrower shall have delivered a
certificate to the Collateral Agent, dated the date of any proposed Addendum, to
the effect that (a) immediately prior to the execution and delivery of such
Addendum no Default or Event of Default (as defined in the Note Purchase
Agreements) exists under the Note Purchase Agreements, no Event of Default (as
defined in the Credit Agreement) or event or condition which, with the passage
of time or giving of notice, or both, could become an Event of Default under the
Credit Agreement exists under the Credit Agreement and no event of default or
event or condition which, with the passage of time or giving of notice, or both,
could become an event of default under any Additional Senior Agreement exists
under any Additional Senior Agreement, and (b) immediately after the execution
thereof, no Default or Event or Default (as defined in the Note Purchase
Agreements) shall exist under the Note Purchase Agreements, no Event of Default
(as defined in the Credit Agreement) or event or condition which, with the
passage of time or giving of notice, or both, could become an Event of Default
under the Credit Agreement shall exist under the Credit Agreement, and no event
of default or event or condition which, with the
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passage of time or giving of notice, or both, could become an event of default
under any Additional Senior Agreement, shall exist under any Additional Senior
Agreement.
Section 22. Conflict with Other Agreements.
As long as this Intercreditor Agreement shall be in effect, the provisions
of the Security Documents relating to the exercise by the Collateral Agent, the
Bank Agent, the Senior Note Collateral Agent or any of the Senior Creditors of
rights thereunder and the application of proceeds of Collateral, shall be
subject to the provisions of this Intercreditor Agreement. In the event of any
inconsistency between the provisions of any such Security Documents and this
Intercreditor Agreement, the provisions of the Intercreditor Agreement shall
prevail.
-15-
In Witness Whereof, the Collateral Agent, the Bank Agent, the Banks, and
the Senior Noteholders named below have caused this Agreement to be duly
executed, and the Borrower has acknowledged and consented to this Agreement, as
of the day and year first above written.
Fleet Bank, N.A., as Collateral Agent
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title:
Notice Address: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Fleet Bank, N.A., as Bank Agent and Senior
Note Collateral Agent
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title:
-▇▇-
▇▇▇▇▇ ▇▇▇▇, National Association, as Swing
Line Lender and as one of the Banks
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------
Title: Vice President
The Bank of New York
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
------------------------------
Title:
BankBoston, N.A.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------
Title:
▇▇▇▇▇▇ Trust and Savings Bank
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------
Title:
Bank Tokyo-Mitsubishi Trust Company
By: /s/ ▇▇▇▇▇▇▇▇▇ Savistano
------------------------------
Title:
-▇▇-
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------
Title
By:
-----------------------------
Title
European American Bank
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------
Title:
Bank Leumi USA
By: /s/ ▇▇▇▇ ▇▇▇▇
-----------------------------
Title:
The Chase Manhattan Bank
By: /s/ ▇▇▇▇ ▇▇▇▇
-----------------------------
Title
-18-
The Travelers Insurance Company
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------
Name:
Title:
First Citicorp Life Insurance Company
By Travelers Asset Management International
Corporation
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------
Name:
Title:
Citicorp Life Insurance Company
By Travelers Asset Management International
Corporation
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------
Name:
Title:
-19-
United of Omaha Life Insurance Company
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------
Name:
Title:
Companion Life Insurance Company
By:
------------------------------
Name:
Title:
By:
------------------------------
Name:
Title:
-20-
The undersigned hereby consents to the execution of the foregoing Agreement
by the parties thereto and acknowledges (a) the terms of the foregoing
Agreement, (b) that the foregoing Agreement is for the sole benefit of the
Senior Creditors and that it has no rights or benefits under such Agreement, and
(c) that the provisions/*/ of the foregoing Agreement may be waived, amended or
modified without its consent.
Medallion Funding Corp.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------
Its President
__________________
/*/ (except provisions permitting the Company to incur Additional Senior
Obligations in compliance with the terms hereof and of the Loan Documents and
Note Documents)
-21-
ADDENDUM TO INTERCREDITOR AGREEMENT
Addendum dated as of [date of Additional Senior Agreement] between [name of
Additional Senior Creditor] and Fleet Bank, N.A., ("Fleet") as Collateral Agent
under the Intercreditor Agreement dated as of June 1, 1999 entered into among
Fleet Bank, N.A. (the "Bank"), in its individual capacity and as Collateral
Agent, the Banks (as defined therein), the Senior Noteholders (as defined
therein), Fleet as Senior Note Collateral Agent (as defined therein) and all
Additional Senior Creditors thereto (the "Intercreditor Agreement").
RECITALS:
Whereas, [name of Additional Senior Creditor] ("Name of Additional Senior
Creditor]") has entered into a [name of Additional Senior Agreement] with the
Borrower, dated as of [date of Additional Senior Agreement] (the "Agreement");
Now, Therefore, the Collateral Agent and [name of Additional Senior
Creditor] agrees as follows:
1. [Name of Additional Senior Creditor] hereby consents to and
agrees to be bound by all of the terms and conditions of the Intercreditor
Agreement.
2. [Name of Additional Senior Creditor] is hereby designated an
"Additional Secured Creditor" and the Agreement is hereby designated an
"Additional Senior Agreement", each as defined in the Intercreditor
Agreement, such designation to be effective as of [date of issuance of
Additional Senior Debt].
3. Any notices required to be delivered to [Name of Additional
Senior Creditor] shall be in writing, delivered or mailed prepaid by
registered or certified mail or overnight air courier, or by facsimile
communication at the address set forth below, or such address as [name of
Additional Senior Creditor] may designate to the other parties to the
Intercreditor Agreement:
[Notice Address of Additional Senior Creditor]
In Witness Whereof, the [name of Additional Senior Creditor] has caused
this Addendum to be duly executed and delivered as of the day and year first
above written.
EXHIBIT A
(to Intercreditor Agreement)
[Name of Additional Senior Creditor]
By:
-------------------------------
Its
Fleet Bank, N.A., as Collateral Agent
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------
Its
A-2
Medallion Funding Corp. hereby acknowledges and consents to the foregoing
Addendum to Intercreditor Agreement.
Medallion Funding Corp.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------
Its President
A-3