Exhibit 10.28
REVOLVING CREDIT NOTE
$25,000,000 No. 32
January 28, 1997
FOR VALUE RECEIVED, the undersigned, Medallion Funding Corp., a New York
corporation (the "Borrower"), hereby unconditionally promises to pay on the date
of Maturity, as defined in the Loan Agreement (hereinafter referred to) or on
such earlier date as may be required under the Loan Agreement, to the order of
Fleet Bank, N.A. (the "Bank") at the office of such Bank, currently located at
▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, in lawful money of the United States of
America and in immediately available funds, an amount equal to the lesser of
(a) TWENTY FIVE MILLION DOLLARS ($25,000,000) and (b) the aggregate unpaid
principal amount of all Revolving Credit Loans made by the Bank to the Borrower
pursuant to the Loan Agreement, dated as of March 27, 1992, as ammended, among
the Borrower, the banks that from time to time are signatories thereto, and
Fleet Bank NA as Agent (as amended, modified or supplemented from time to time
in accordance with its terms, the "Loan Agreement"). The Borrower further
promises to pay interest (computed on the basis of a 360-day year for the
actual number of days elapsed) in like money on the unpaid principal balance of
this Note from time to time outstanding at such rates and times as provided in
the Loan Agreement.
All Revolving Credit Loans made by the Bank pursuant to the Loan Agreement
and all payments of the principal thereof shall be endorsed by the holder of
this Note on the schedule annexed hereto (including any additional pages such
holder may add to such schedule), which endorsement shall constitute prima facie
-----------
evidence of the accuracy of the information so endorsed; provided, however, that
-----------------
the failure of the holder of this Note to insert any date or amount or other
information on such schedule shall not in any manner affect the obligation of
the Borrower to repay any Revolving Credit Loans in accordance with the terms of
the Loan Agreement.
On and after the stated or any accelerated maturity hereof, and until paid
in full (whether before or after the occurrence of any Event of Default
described in Sections 9.1(g) and 9.1(h) of the Loan Agreement), (a) the
outstanding principal amount of this Note which at such time is a Prime Rate
Loan (including, to the extent permitted by law, unpaid interest thereon) shall
bear interest at an annual rate equal to the sum of 2% plus the Prime Rate
applicable to such Prime Rate Loan then in effect and (b) the outstanding
principal amount of this Note which is a LIBO Rate Loan (including, to the
extent permitted by law, unpaid interest thereon) shall bear interest at an
annual rate equal to the sum of 3.75% plus the Adjusted LIBO Rate applicable to
such LIBO Rate Loan then in effect, in each case payable on demand, but in no
event shall such rate of interest (the "Default Rate") be in excess of the
maximum rate of interest permitted under applicable law. The Default Rate shall
be computed on the basis of a 360-day year for the actual number of days
elapsed. If the Default Rate is to be based on the Prime Rate, the Prime Rate
to be charged shall change when and as the Prime Rate is changed, and any such
change in the Prime Rate shall become effective at the opening of business on
the day on which such
Revolving Credit Note
Page 2
change is adopted. At the end of the applicable Interest Period for a LIBO Rate
Loan on which the Default Rate is being charged, such LIBO Rate Loan shall be
automatically converted to a Prime Rate Loan, and the Default Rate to be charged
in respect of such Loan shall be computed based on the Prime Rate.
This Note is one of the Revolving Credit Notes referred to in the Loan
Agreement, is secured as provided therein, is entitled to the benefits thereof
and is subject to optional and mandatory prepayment, in whole or in part, as
provided therein. The Borrower shall make when due any and all payments and
prepayments on this Revolving Credit Note required under the Loan Agreement.
Reference is herein made to the Loan Agreement for the rights of the holder to
accelerate the unpaid balance hereof prior to maturity.
Borrower hereby waives diligence, demand, presentment, protest and notice
of any kind, release, surrender or substitution of security, or forbearance or
other indulgence, without notice.
Capitalized terms used herein and not otherwise defined shall have the
respective meanings ascribed to them in the Loan Agreement.
This Note may not be changed, modified, or terminated orally, but only by
an agreement in writing signed by the party to be charged.
IN THE EVENT OF ANY LITIGATION WITH RESPECT TO THIS REVOLVING CREDIT NOTE,
THE BORROWER WAIVES (TO THE EXTENT PERMITTED BY LAW) THE RIGHT TO A TRIAL BY
JURY, ALL RIGHTS OF SETOFF AND RIGHTS TO INTERPOSE COUNTERCLAIMS AND CROSS-
CLAIMS AGAINST THE BANK (UNLESS SUCH SETOFF, COUNTERCLAIM OR CROSS-CLAIM COULD
NOT, BY REASON OF ANY APPLICABLE FEDERAL OR STATE PROCEDURAL LAWS, BE
INTERPOSED, PLEADED OR ALLEGED IN ANY OTHER ACTION) AND THE DEFENSES OF FORUM
NON CONVENIENS AND IMPROPER VENUE. THE BORROWER HEREBY IRREVOCABLY CONSENTS TO
THE NON-EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK, COUNTY OF
NEW YORK AND OF ANY FEDERAL COURT LOCATED IN THE SOUTHERN DISTRICT OF NEW YORK
IN CONNECTION WITH ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
REVOLVING CREDIT NOTE. THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF
LAWS PRINCIPLES, AND SHALL BE BINDING UPON THE SUCCESSORS AND ASSIGNS OF
BORROWER AND INURE TO THE BENEFIT OF THE BANKS AND ITS SUCCESSORS AND ASSIGNS.
If any term or provision of this Revolving Credit Note shall be held invalid,
illegal or unenforceable, the validity of all other terms and provisions herein
shall in no way be affected thereby.
Revolving Credit Note
Page 3
IN WITNESS WHEREOF, ▇▇▇▇▇▇▇▇ has executed and delivered this Note on the
date first above written.
MEDALLION FUNDING CORP.,
a New York Corporation
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
CEO
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Treasurer & CFO President