EXHIBIT 10.9
GUARANTY
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DATED as of April 30, 2001
by
Medallion Taxi Media, Inc.
in favor of
FLEET NATIONAL BANK, as Agent for itself and the Banks named
herein
and
THE BANKS
TABLE OF CONTENTS
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1. Definitions.......................................... 1
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2. Guaranty of Payment and Performance.................. 2
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3. Guarantor's Agreement to Pay Enforcement Costs, etc.. 2
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4. Waivers by Guarantor; Bank's Freedom to Act.......... 2
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5. Unenforceability of Obligations Against Borrowers.... 3
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6. Subrogation; Subordination........................... 4
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6.1. Waiver of Rights Against Borrowers............ 4
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6.2. Subordination................................. 4
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6.3. Provisions Supplemental....................... 5
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7. Security; Setoff..................................... 5
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8. Further Assurances................................... 5
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9. Release.............................................. 5
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10. Termination; Reinstatement........................... 6
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11. Successors and Assigns............................... 6
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12. Amendments and Waivers............................... 6
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13. Notices.............................................. 7
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14. Governing Law; Consent to Jurisdiction............... 7
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15. Waiver of Jury Trial................................. 7
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16. Miscellaneous........................................ 8
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GUARANTY
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GUARANTY, dated as of April 30, 2001, by Medallion Taxi Media, Inc., a New
York corporation (the "Guarantor") in favor of (i) Fleet National Bank, a
national banking association, as agent (hereinafter, in such capacity, the
"Agent") for itself and the other banking institutions (hereinafter,
collectively, the "Banks") which are or may become parties to a Second Amended
and Restated Loan Agreement dated as of September 22, 2000 (as amended and in
effect from time to time, the "Financial Agreement"), among Medallion Financial
Corp., a Delaware corporation ("MFC"), Medallion Business Credit, LLC, a
Delaware limited liability company ("MBC"; MBC and MFC are sometimes
hereinafter referred to individually as a "Borrower" and together as the
"Borrowers"), the Banks and the Agent and (ii) each of the Banks.
WHEREAS, the Borrowers and the Guarantor are members of a group of related
corporations, the success of any one of which is dependent in part on the
success of the other members of such group;
WHEREAS, the Guarantor expects to receive substantial direct and indirect
benefits from the extensions of credit to the Borrowers by the Banks pursuant to
the Financial Agreement (which benefits are hereby acknowledged);
WHEREAS, it is a condition to the effectiveness of Amendment No. 1 that the
Guarantor execute and deliver to the Agent, for the benefit of the Banks and the
Agent, a guaranty substantially in the form hereof; and
WHEREAS, the Guarantor wishes to guaranty the Borrowers' obligations to the
Banks and the Agent under or in respect of the Financial Agreement as provided
herein;
NOW, THEREFORE, the Guarantor hereby agrees with the Banks and the Agent as
follows:
1. Definitions. The term "Obligations" shall have the meaning provided
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therefor in the Security Agreement (as defined in the Financial Agreement); all
other capitalized terms used herein without definition shall have the respective
meanings provided therefor in the Financial Agreement.
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2. Guaranty of Payment and Performance. The Guarantor hereby guarantees to
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the Banks and the Agent the full and punctual payment when due (whether at
stated maturity, by required pre-payment, by acceleration or otherwise), as well
as the performance, of all of the Obligations including all such which would
become due but for the operation of the automatic stay pursuant to Section
362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(b) and
506(b) of the Federal Bankruptcy Code. This Guaranty is an absolute,
unconditional and continuing guaranty of the full and punctual payment and
performance of all of the Obligations and not of their collectibility only and
is in no way conditioned upon any requirement that the Agent or any Bank first
attempt to collect any of the Obligations from the Borrowers or resort to any
collateral security or other means of obtaining payment. Should the Borrowers
default in the payment or performance of any of the Obligations, the obligations
of the Guarantor hereunder with respect to such Obligations in default shall,
upon demand by the Agent, become immediately due and payable to the Agent, for
the benefit of the Banks and the Agent, without demand or notice of any nature,
all of which are expressly waived by the Guarantor. Payments by the Guarantor
hereunder may be required by the Agent on any number of occasions. All payments
by the Guarantor hereunder shall be made to the Agent, in the manner and at the
place of payment specified therefor in the Financial Agreement, for the account
of the Banks and the Agent.
3. Guarantor's Agreement to Pay Enforcement Costs, etc. The Guarantor
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further agrees, as the principal obligor and not as a guarantor only, to pay to
the Agent, on demand, all costs and expenses (including court costs and legal
expenses) incurred or expended by the Agent or any Bank in connection with the
Obligations, this Guaranty and the enforcement hereof and thereof, together with
interest on amounts recoverable under this Section 3 from the time when such
amounts become due until payment, whether before or after judgment, at the
rate of interest for overdue principal set forth in the Financial Agreement,
provided that if such interest exceeds the maximum amount permitted to be paid
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under applicable law, then such interest shall be reduced to such maximum
permitted amount.
4. Waivers by Guarantor; Bank's Freedom to Act. The Guarantor agrees that
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the Obligations will be paid and performed strictly in accordance with their
respective terms, regardless of any law, regulation or order now or hereafter in
effect in any jurisdiction affecting any of such terms or the rights of the
Agent or any Bank with respect thereto. The Guarantor waives promptness,
diligences,
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presentment, demand, protest, notice of acceptance, notice of any Obligations
incurred and all other notices of any kind, all defenses which may be available
by virtue of any valuation, stay, moratorium law or other similar law now or
hereafter in effect, any right to require the marshalling of assets of the
Borrowers or any other entity or other person primarily or secondarily liable
with respect to any of the Obligations, and all suretyship defenses generally.
Without limiting the generality of the foregoing, the Guarantor agrees to the
provisions of any instrument evidencing, securing or otherwise executed in
connection with any Obligation and agrees that the obligations of the Guarantor
hereunder shall not be released or discharged, in whole or in part, or otherwise
affected by (i) the failure of the Agent or any Bank to assert any claim or
demand or to enforce any right or remedy against the Borrowers or any other
entity or other person primarily or secondarily liable with respect to any of
the Obligations; (ii) any extensions, compromise, refinancing, consolidation or
renewals of any Obligation; (iii) any change in the time, place or manner of
payment of any of the Obligations or any rescissions, waivers, compromise,
refinancing, consolidation or other amendments or modifications of any of the
terms or provisions of the Financial Agreement, the other Loan Documents or any
other agreement evidencing, securing or otherwise executed in connection with
any of the Obligations, (iv) the addition, substitution or release of any entity
or other person primarily or secondarily liable for any Obligation; (v) the
adequacy of any rights which the Agent or any Bank may have against any
collateral security or other means of obtaining repayment of any of the
Obligations; (vi) the impairment of any collateral securing any of the
Obligations, including without limitation the failure to perfect or preserve any
rights which the Agent or any Bank might have in such collateral security or the
substitution, exchange, surrender, release, loss or destruction of any such
collateral security; or (vii) any other act or omission which might in any
manner or to any extent vary the risk of the Guarantor or otherwise operate as a
release or discharge of the Guarantor, all of which may be done without notice
to the Guarantor. To the fullest extent permitted by law, the Guarantor hereby
expressly waives any and all rights or defenses arising by reason of (A) any
"one action" or "anti-deficiency" law which would otherwise prevent the Agent or
any Bank from bringing any action, including any claim for a deficiency, or
exercising any other right or remedy (including any right of set-off), against
the Guarantor before or after the Agent's or such Bank's commencement or
completion of any foreclosure action, whether judicially, by exercise of power
of sale or otherwise, or (B) any other
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law which in any other way would otherwise require any election of remedies by
the Agent or any Bank.
5. Unenforceability of Obligations Against Borrowers. If for any reason
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the Borrowers have no legal existence or are under no legal obligation to
discharge any of the Obligations, or if any of the Obligations have become
irrecoverable from the Borrowers by reason of the Borrowers' insolvency,
bankruptcy or reorganization or by other operation of law or for any other
reason, this Guaranty shall nevertheless be binding on the Guarantor to the same
extent as if the Guarantor at all times had been the principal obligor on all
such Obligations. In the event that acceleration of the time for payment of any
of the Obligations is stayed upon the insolvency, bankruptcy or reorganization
of the Borrowers, or for any other reason, all such amounts otherwise subject to
acceleration under the terms of the Financial Agreement, the other Loan
Documents or any other agreement evidencing, securing or otherwise executed in
connection with any Obligation shall be immediately due and payable by the
Guarantor.
6. Subrogation; Subordination.
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6.1. Waiver of Rights Against Borrowers. Until the final payment and
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performance in full of all of the Obligations, the Guarantor shall not
exercise and hereby waives any rights against the Borrowers arising as a
result of payment by the Guarantor hereunder, by way of subrogation,
reimbursement, restitution, contribution or otherwise, and will not prove
any claim in competition with the Agent or any Bank in respect of any
payment hereunder in any bankruptcy, insolvency or reorganization case or
proceedings of any nature; the Guarantor will not claim any setoff,
recoupment or counterclaim against the Borrowers in respect of any
liability of the Guarantor to the Borrowers; and the Guarantor waives any
benefit of and any right to participate in any collateral security which
may be held by the Agent or any Bank.
6.2. Subordination. The payment of any amounts due with respect to
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any indebtedness of the Borrowers for money borrowed or credit received now
or hereafter owed to the Guarantor is hereby subordinated to the prior
payment in full of all of the Obligations. The Guarantor agrees that, after
the occurrence of any default in the payment or performance of any of the
Obligations, the Guarantor will not demand, ▇▇▇ for or
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otherwise attempt to collect any such indebtedness of the Borrowers to the
Guarantor until all of the Obligations shall have been paid in full. If,
notwithstanding the foregoing sentence, the Guarantor shall collect,
enforce or receive any amounts in respect of such indebtedness while any
Obligations are still outstanding, such amounts shall be collected,
enforced and received by the Guarantor as trustee for the Banks and the
Agent and be paid over to the Agent, for the benefit of the Banks and the
Agent, on account of the Obligations without affecting in any manner the
liability of the Guarantor under the other provisions of this Guaranty.
6.3. Provisions Supplemental. The provisions of this Section 6 shall
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be supplemental to and not in derogation of any rights and remedies of the
Banks and the Agent under any separate subordination agreement which the
Agent may at any time and from time to time enter into with the Guarantor
for the benefit of the Banks and the Agent.
7. Setoff. Regardless of any other means of obtaining payment of any of
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the Obligations, each of the Agent and the Banks is hereby authorized at any
time and from time to time, without notice to the Guarantor (any such notice
being expressly waived by the Guarantor) and to the fullest extent permitted by
law, to set off and apply such deposits and other sums against the obligations
of the Guarantor under this Guaranty, whether or not the Agent or such Bank
shall have made any demand under this Guaranty and although such obligations may
be contingent or unmatured.
8. Further Assurances. The Guarantor agrees that it will from time to
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time, at the request of the Agent, do all such things and execute all such
documents as the Agent may consider necessary or desirable to give full effect
to this Guaranty and to perfect and preserve the rights and powers of the Banks
and the Agent hereunder. The Guarantor acknowledges and confirms that the
Guarantor itself has established its own adequate means of obtaining from the
Borrowers on a continuing basis all information desired by the Guarantor
concerning the financial condition of the Borrowers and that the Guarantor will
look to the Borrowers and not to the Agent or any Bank in order for the
Guarantor to keep adequately informed of changes in the Borrowers' financial
condition.
9. Release. Notwithstanding any provision of this Guaranty to the
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contrary, this Guaranty shall be released, with the prior written
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consent of the Agent and the Required Banks, which consent shall not be
conditioned on any requirement to repay Indebtedness, upon any sale, transfer,
public offering, merger, consolidation or other similar event involving the
change of at least 33% of the legal and beneficial ownership of the Guarantor.
10. Termination; Reinstatement. This Guaranty shall remain in full force
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and effect until the Agent is given written notice of the Guarantor's intention
to discontinue this Guaranty, notwithstanding any intermediate or temporary
payment or settlement of the whole or any part of the Obligations. No such
notice shall be effective unless received and acknowledged by an officer of the
Agent at the address of the Agent for notices set forth in Section 10.4 of the
Financial Agreement. No such notice shall affect any rights of the Agent or any
Bank hereunder, including without limitation the rights set forth in (S)(S)4 and
6, with respect to any Obligations incurred or accrued prior to the receipt of
such notice or any Obligations incurred or accrued pursuant to any contract or
commitment in existence prior to such receipt. This Guaranty shall continue to
be effective or be reinstated, notwithstanding any such notice, if at any time
any payment made or value received with respect to any Obligation is rescinded
or must otherwise be returned by the Agent or any Bank upon the insolvency,
bankruptcy or reorganization of the Borrowers, or otherwise, all as though such
payment had not been made or value received.
11. Successors and Assigns. This Guaranty shall be binding upon the
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Guarantor, its successors and assigns, and shall inure to the benefit of the
Agent and the Banks and their respective successors, transferees and assigns.
Without limiting the generality of the foregoing sentence, each Bank may assign
or otherwise transfer the Financial Agreement, the other Loan Documents or any
other agreement or note held by it evidencing, securing or otherwise executed in
connection with the Obligations, or sell participations in any interest therein,
to any other entity or other person, and such other entity or other person shall
thereupon become vested, to the extent set forth in the agreement evidencing
such assignment, transfer or participation, with all the rights in respect
thereof granted to such Bank herein, all in accordance with Section 12 of the
Financial Agreement. The Guarantor may not assign any of its obligations
hereunder without the prior written consent of the Agent and the Banks (and any
such assignment without such consent shall be null and void).
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12. Amendments and Waivers. No amendment or waiver of any provision of
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this Guaranty nor consent to any departure by the Guarantor therefrom shall be
effective unless the same shall be in writing and signed by the Agent with the
consent of the Majority Banks. No failure on the part of the Agent or any Bank
to exercise, and no delay in exercising, any right hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any right hereunder
preclude any other or further exercise thereof or the exercise of any other
right.
13. Notices. All notices and other communications called for hereunder
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shall be made in writing and, unless otherwise specifically provided herein,
shall be deemed to have been duly made or given when delivered by hand or mailed
first class, postage prepaid, or, in the case of telegraphic or telexed notice,
when transmitted, answer back received, addressed as follows: if to the
Guarantor, at the address set forth beneath its signature hereto, and if to the
Agent, at the address for notices to the Agent set forth on Exhibit A of the
Financial Agreement, or at such address as either party may designate in writing
to the other.
14. Governing Law; Consent to Jurisdiction. THIS GUARANTY IS INTENDED TO
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TAKE EFFECT AS A SEALED INSTRUMENT AND SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. The Guarantor agrees that
any suit for the enforcement of this Guaranty may be brought in the courts of
the State of New York or any federal court sitting therein and consents to the
nonexclusive jurisdiction of such court and to service of process in any such
suit being made upon the Guarantor by mail at the address specified by reference
in Section 13. The Guarantor hereby waives any objection that it may now or
hereafter have to the venue of any such suit or any such court or that such suit
was brought in an inconvenient court.
15. Waiver of Jury Trial. THE GUARANTOR HEREBY WAIVES ITS RIGHT TO A JURY
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TRIAL WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN
CONNECTION WITH THIS GUARANTY, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THE
PERFORMANCE OF ANY OF SUCH RIGHTS OR OBLIGATIONS. Except as prohibited by law,
the Guarantor hereby waives any right which it may have to claim or recover in
any litigation referred to in the preceding sentence any special, exemplary,
punitive or consequential damages or any damages other than, or in addition to,
actual damages. The Guarantor (i) certifies
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that neither the Agent or any Bank nor any representative, agent or attorney of
the Agent or any Bank has represented, expressly or otherwise, that the Agent or
any Bank would not, in the event of litigation, seek to enforce the foregoing
waivers and (ii) acknowledges that, in entering into the Financial Agreement and
the other Loan Documents to which the Agent or any Bank is a party, the Agent
and the Banks are relying upon, among other things, the waivers and
certifications contained in this Section 15.
16. Miscellaneous. This Guaranty constitutes the entire agreement of the
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Guarantor with respect to the matters set forth herein. The rights and remedies
herein provided are cumulative and not exclusive of any remedies provided by law
or any other agreement, and this Guaranty shall be in addition to any other
guaranty of or collateral security for any of the Obligations. The invalidity or
unenforceability of any one or more sections of this Guaranty shall not affect
the validity or enforceability of its remaining provisions. Captions are for the
ease of reference only and shall not affect the meaning of the relevant
provisions. The meanings of all defined terms used in this Guaranty shall be
equally applicable to the singular and plural forms of the terms defined.
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be executed
and delivered as of the date first above written.
MEDALLION TAXI MEDIA, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
President
Address:
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Telecopy: ▇▇▇-▇▇▇-▇▇▇▇