EXHIBIT 10.2
AGENCY AGREEMENT
This agreement is made as of the 13th day of March, 1998 between
Medallion Funding Corp., a Delaware corporation (the "Issuer"),
and Bank of Montreal Trust Company, a trust company organized and
existing under the laws of the State of New York ("BMTC").
Whereas the Issuer desires to appoint BMTC to act as its issuing
agent, paying agent and depositary with respect to certain
unsecured short-term promissory notes to be issued and sold by
the Issuer from time to time and BMTC desires to accept such
appointment;
Now, therefore, in consideration of the premises and for other
good and valuable consideration, the parties agree to the
following.
1. Appointment of Agent
Subject to the terms and conditions of this Agreement, the
Issuer hereby appoints BMTC to act as the issuing agent,
paying agent and depositary for the short-term promissory
notes issued and sold by the Issuer from time to time during
the term of this Agreement. Such short-term promissory notes
shall be referred to in this Agreement as the "Notes", which
shall, without restricting the generality of the foregoing
and unless the context otherwise requires, include the
Physical Notes, the Book-Entry Notes and the Master Notes,
each as hereinafter defined. The Notes will be secured by
certain assets of the Issuer pursuant to an Amended and
Restated Security Agreement between the Issuer and Fleet
Bank, N.A., as secured party (in such capacity, the
"Collateral Agent").
2. The Notes
(a) The Issuer may issue and sell the Notes either (i) in
certificated physical form in substantially the forms
set out in Schedule A to this Agreement (the "Physical
Notes"), or (ii) in electronic book-entry form through
The Depository Trust Company ("DTC") and DTC's nominee
from time to time ("DTC's Nominee"), currently Cede &
Co. (the "Book-Entry Notes").
(b) Where Notes are issued and sold by the Issuer as Book-
Entry Notes, they will be represented by a master note
in substantially the form set out in Schedule B to this
Agreement to be registered in the name of DTC's Nominee
and held by the Agent on behalf of DTC (the "Master
Note").
3. Supply of Physical Notes; Certificates; Delivery
Instructions
(a) The Issuer shall from time to time furnish the Agent
with an adequate supply of Physical Notes, serially
numbered but not authenticated and with the face or
principal amount, date of issue and maturity date left
blank. Each such Physical Note shall have been duly
executed on behalf of the Issuer by the manual or
facsimile signature of an authorized person. The Agent
is authorized to honor such facsimile signatures if it
is satisfied that they resemble the facsimile specimens
as shall from time to time be filed with the Agent by
the Issuer.
(b) When any Physical Notes are delivered by the Issuer to
the Agent, the Agent will acknowledge receipt by
returning a receipt form to the Issuer. All Notes
delivered to the Agent shall be held by it for the
Issuer's account for safekeeping, and the Agent shall
immediately advise the Issuer if the Agent should become
aware of the loss, disappearance or theft of any blank
Physical Note held by it for safekeeping.
(c) By an appropriate certificate of designation, the Agent
shall furnish the Issuer from time to time with the
names and manual or facsimile signatures of the
designated officers and employees of the Agent who are
authorized to issue receipts for Notes and to complete,
countersign and deliver the Notes pursuant to Section 5.
(d) The Issuer shall from time to time furnish the Agent
with incumbency certificates respecting the persons
authorized to execute the Physical Notes by manual or
facsimile signature or countersignature. In addition,
the Issuer shall furnish the Agent with a letter
substantially in the form set out in Schedule C,
designating those officers, employees and agents of the
Issuer authorized to issue instructions to the Agent
("Authorized Person" or "Authorized Persons"), and the
Agent shall be entitled to rely upon such letter, and
any amendments thereto or replacements thereof, until
such time as the Agent shall have received from the
Issuer written notice to the contrary. No person, other
than an Authorized Person, is authorized to issue
instructions to the Agent.
(e) An Authorized Person may from time to time furnish the
Agent with instructions respecting the persons to whom
Physical Notes are to be delivered.
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4. Authentication and Delivery; Risk of Non-receipt of
Final Payment
(a) In accordance with any specific procedures set out in
Schedule D to this Agreement, an Authorized Person shall
cause to be delivered in writing, or shall transmit by
telephone (in all instances confirmed in writing), on-
line terminal apparatus, telex or facsimile,
instructions to the Agent with respect to the issuance
of Notes.
(b) In the event that Physical Notes are to be issued, the
Agent will, in accordance with the Issuer's instructions
given in accordance with subsection (a) of this section:
(i) complete each Physical Note as to face or principal
amount, date of issue, maturity date, cities of
payment and, if the Note is to be interest bearing,
the interest rate, and insert the word "bearer", if
applicable, or the name of the payee;
(ii) cause each Physical Note to be authenticated by at
least one duly authorized officer or employee of
the Agent designated for that purpose; and
(iii) deliver each Physical Note to or for the account of
such person as the Agent shall have been instructed
(A) against payment, or (B) against receipt and
undertaking to remit funds by wire, or (C) in
exchange for other outstanding Physical Notes in
like aggregate amount, in accordance with the
instructions of the Issuer.
All Physical Notes once duly authenticated and delivered by
the Agent shall constitute legal, valid and binding
obligations of the Issuer.
(c) In the event that Book-Entry Notes are to be issued, the
Agent will, in accordance with the Issuer's instructions
given in accordance with subsection (a) of this section:
(i) assign a CUSIP number to each issue using numbers
provided beforehand by Standard and Poors CUSIP
Bureau; and
(ii) enter an issuance instruction (via a computer link
with DTC) listing descriptive information and all
settlement details of the issuance.
(d) It is understood that, when the Agent is instructed to
deliver the Physical Notes against payment, delivery of
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the Physical Notes and the receipt of payment therefore
are not completed simultaneously. The risk of
nonreceipt of payment shall be borne by the Issuer, the
Agent shall have no responsibility or liability
therefor, and the risk of the Issuer shall continue
until final payment has been received by the Agent.
Payment with respect to a transaction shall not be final
until the Agent shall have received immediately
available funds which under applicable law or rule are
irreversible, which are not subject to any security
interest, levy or other encumbrance, and which are
specifically applicable, or are deemed by the Agent to
be specifically applicable, to such transaction. A
debit by the Agent to any account of a person to whom or
for whose account the Physical Notes shall have been
delivered shall not constitute final payment to the
extent that such debit creates an overdraft or does not
otherwise result in the receipt by the Agent of
immediately available, irreversible and unencumbered
funds.
(e) The Agent will deposit all proceeds of payment for the
Notes into the Issuer's applicable commercial paper
account with the Agent, as set out in Schedule E (each,
a "Commercial Paper Account"). It is understood that as
a matter of bookkeeping convenience the Agent may credit
a Commercial Paper Account with the proceeds of the
Notes prior to the Agent's actual receipt of final
payment therefor and that such bookkeeping credits may
also be reflected on the Agent's books, and otherwise,
as "immediately available" or "same day" funds or by
some similar characterization. Notwithstanding any such
credit or characterization, all such credits shall be
conditional upon the Agent's actual receipt of final
payment and may be reversed by the Agent to the extent
that such payment is not received.
(f) Although it is acknowledged that it will be standard
procedure, the Agent shall not be obligated to transfer
funds from a Commercial Paper Account before final
payment for the Notes has been received by the Agent.
If, however, the Agent elects in its sole discretion to
permit such a transfer, the Issuer shall nonetheless
continue to bear the risk of nonreceipt of final
payment, and to the extent that final payment for any of
the Notes delivered on any day is not received by the
close of business on that day, the Issuer will
immediately upon demand reimburse the Agent for the
amount so transferred in anticipation of final payment.
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(g) In the event that a discrepancy exists between any
telephonic instructions received by the Agent and the
written confirmation received by the Agent, oral
instructions which have been acted upon shall be deemed
the controlling and proper instructions. The Agent is
entitled to rely on any communication, written or oral,
which is reasonably believed by the Agent to be genuine
and to have been sent or signed by any Authorized
Person.
5. Payment of Notes at Maturity
(a) The Agent is authorized, without further instruction, to
pay all matured Notes either when presented to the Agent
physically at such offices of the Agent as set out in
Schedule F, or in the case of Book-Entry Notes, when
presented by way of a debit for the maturity amount via
computer link from DTC. The Issuer shall be responsible
for providing the Agent with sufficient funds in such
account to pay the Notes as they mature. In the event
that, on any day that Notes mature, the Issuer shall not
have provided the Agent with sufficient funds to pay all
of such Notes by 1:00 P.M., the Agent shall notify the
Issuer and the Collateral Agent immediately by telephone
(confirmed in writing promptly thereafter) of such
insufficiency. If the Agent shall elect, in its sole
discretion, to pay a Note in anticipation of sufficient
funds being in such account, and final payment of such
funds is not made to such account by the close of
business on the date of such payment, the Issuer shall
immediately upon demand reimburse the Agent for all
amounts so paid by it, plus interest thereon at the
Agent's prime rate of interest, from the date of the
Agent's payment to the date of reimbursement in full by
the Issuer. As used herein, "prime rate of interest"
means the per annum rate of interest established from
time to time by the Agent as the reference rate it will
use to determine the rates of interest on loans to
customers in the currency of the Agent's payment in the
particular case, and designated as prime rate.
(b) (i) Upon the payment in full of a Physical Note
delivered to an Agent, the Agent shall cancel it
and:
(ii) return it to the Issuer,
(iii) unless the Agent and the Issuer agree in writing
that the Agent shall retain it for a period of one
year, within the following year destroy it and
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deliver a letter of confirmation of such
destruction to the Issuer.
(c) The Agent agrees to take all reasonable care in
accepting Physical Notes presented for payment at
maturity. Such care will include a check on the issue
number of the Physical Note, its format and signatures.
In the event of a discrepancy, the Agent may telephone
any Authorized Person, and may act in accordance with
instructions which it then receives from the Authorized
Person.
6. Effect of Change of Officers
If any officer of the Issuer whose facsimile signature or
countersignature appears on any Physical Note shall cease to
be such officer before the Physical Note has been delivered
by the Agent, the Physical Note may nevertheless be
authenticated, issued and delivered with the same effect as
though the signatory had not ceased to be such officer. The
Agent is hereby authorized to pay each Physical Note in
accordance with its terms notwithstanding (a) any changes in
the office or authority of the signatory of any Physical Note
which occur between the time of signature and the time of
payment of such Physical Note, or (b) any changes which occur
between the time of authentication and the time of payment of
any Physical Note in the office or authority of the officer
of the Agent who authenticated such Physical Note. The
provisions of this section 6 also apply to Master Notes.
7. Issuer's Representations and Warranties
The Issuer hereby represents and warrants to the Agent, which
shall be a continuing representation and warranty, that: (1)
all Physical Notes and the Master Notes delivered to the
Agent by the Issuer pursuant to this Agreement have been duly
and validly authorized and, when duly completed, signed,
countersigned, and delivered pursuant hereto, will constitute
the legal, valid and binding obligations of the Issuer and
(ii) the execution, delivery and performance of this
Agreement are within the Issuer's powers, and have been duly
authorized by all required action on the part of the Issuer.
8. Responsibility for Purchaser Creditworthiness
The Issuer acknowledges that it is and will continue to be
solely responsible for making its own independent appraisal
of and investigation into the financial condition and
creditworthiness of each person to whom or for whose account
the Agent is instructed to issue the Notes, and the Issuer
confirms to the Agent that the Agent is under no obligation
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to the Issuer to assess or review the financial condition or
creditworthiness of any such person or to advise it as to the
results of any such appraisal or investigation the Agent may
have conducted on its own or of any adverse information
concerning any such person that may in any way have come to
the Agent's attention.
9. Term and Termination
(a) This Agreement is effective as of the date first above
written, and may be terminated at any time by the Issuer
or the Agent in accordance with the following.
(b) The Issuer may terminate this Agreement at any time by
giving thirty days' advance written notice to the Agent;
provided, however, to the extent there are any
outstanding Notes on such termination dates, this
Agreement shall remain in full force and effect with
respect to such Notes until maturity thereof, provided
further that, unless the Issuer shall have appointed a
successor, the current Agent shall continue to perform
its obligations under this Agreement until the earlier
to occur of:
(i) the payment in full of all Notes; and
(ii) a successor Agent has been appointed by the Issuer
and has accepted said appointment.
The Agent shall deliver within a reasonable time to the
Issuer, as may be applicable, all canceled or unissued
Physical Notes and Master Notes then held by the Agent and
copies of all current records relating to the issuance and
payment of the Notes requested by the Issuer and shall
transfer the funds if any then held by it in the Commercial
Paper Account in accordance with the instructions of the
Issuer. The Agent shall thereafter be discharged from any
future duties and obligations under this Agreement. Such
termination shall not affect the rights or the obligations of
the Issuer under the Notes or hereunder, or of the terminated
Agent hereunder with respect to actions, omissions and events
occurring prior to such termination.
(c) The Agent may terminate this Agreement as to its own
services at any time by giving thirty days' advance
written notice to the Issuer effective upon the
appointment of a successor Agent and the assignment and
acceptance of this Agreement to the successor Agent.
The Agent shall deliver to the Issuer, or upon the
Issuer's written direction, to a successor agent, as may
be applicable, all canceled or unissued Physical Notes
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and Master Notes then held by the Agent and copies of
all current records relating to the issuance and payment
of the Notes requested by the Issuer and shall transfer
the funds if any then held by it in the Commercial Paper
Account in accordance with the instructions of the
Issuer. The Agent shall thereafter be discharged from
any future duties and obligations under this Agreement.
Any outstanding Physical Notes countersigned by the
Agent shall remain in full force and effect until such
Physical Notes have been paid in full. Such termination
by the Agent shall not affect the rights or the
obligations of the Issuer under the Notes or hereunder,
or of the Agent hereunder with respect to actions,
omissions and events occurring prior to such
termination.
10. Care by the Agent
In performing its obligations under this Agreement, the Agent
will take the same care as a prudent and careful person with
the facilities of a bank may fairly be expected to take of
his own property of like description.
11. Conditions Precedent
As a condition precedent to any obligations on the part of
the Agent hereunder, respectively, the Agent shall have
received from the Issuer:
(a) duly certified copies of standing authorizations and
appropriate opinions regarding the authorization of the
appropriate officers of the Issuer to execute and
deliver this Agreement and any and all instruments,
agreements, certificates and documentation reasonably
necessary to implement the issuance of the Notes; and
(b) an opinion of counsel that registration of the Notes
under the Securities Act of 1933 (US) is not required
for the sale of the Notes in the manner contemplated by
the Issuer.
12. Indemnification
(a) The Issuer shall indemnify and save harmless the Agent
and its respective successors, directors, officers, and
employees from and against any and all liabilities,
obligations, losses, damages, payments, costs or
expenses of any kind whatsoever, including reasonable
legal fees, which may be imposed on, incurred by,
asserted against, or made by, them or any of them, as
the result directly or indirectly of the holding,
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issuance, delivery, payment or non-payment of the Notes
in accordance with this Agreement, or the receipt by, or
delivery to, the Agent of any checks or funds in payment
for the Notes in accordance with this Agreement, except
any liabilities, obligations, losses, damages, payments,
costs or expenses arising out of gross negligence or
willful misconduct on the part of the Agent or any of
its officers, employees, or agents in performing this
Agreement. The Agent shall have no liability or
obligation in any respect whatsoever as to Physical
Notes delivered by it upon instructions which are in
accordance with the terms of this Agreement and which
are received, or believed to have been received, from
any Authorized Person and relied upon by the Agent
reasonably and in good faith.
13. Notices
Unless otherwise specified herein, all notices or other
communications to be given in connection with this Agreement
shall be in writing, and shall be given by personal delivery
or prepaid registered mail addressed as follows:
if to the Issuer:
Medallion Funding Corp.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
if to BMTC:
Bank of Montreal Trust Company
Wall ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ - 19th Floor
New York, NY 10005
Attention: Vice President and General Manager
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
if to the Collateral Agent:
Fleet Bank, N.A.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Finance Companies
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Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address or number as any party may from time
to time notify the other parties in accordance with this
provision. All notices or other communications given in
accordance with this provision shall be deemed to have been
received by the addressee: if given by personal delivery, on
the date of delivery; or if given by prepaid registered mail,
on the fifth business day following the date of mailing
(except in the event of a disruption of postal service).
14. Amendments; Assignment
This Agreement may only be amended by a further written
agreement signed by the parties hereto. Neither party hereto
may assign any of the rights or obligations hereunder without
the consent of the other party hereto.
15. Schedules
The Schedules attached to this Agreement are hereby
incorporated into and form part of this Agreement.
16. Counterparts
This Agreement may be executed in any number of counterparts
and by each party hereto on separate counterparts, each of
which counterparts, when executed executed and delivered,
shall be deemed to be an original and all of which
counterparts taken together shall constitute one and the same
Agreement.
17. Headings
The section headings are inserted for convenience of
reference only and do not form part of this Agreement.
18. Governing Law
(a) This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
(b) For any action related to the judicial enforcement or
interpretation of this Agreement, each of the parties
hereto expressly submits to the nonexclusive
jurisdiction of the state or federal courts located in
the County of New York in the State of New York. Each
of the parties hereto further irrevocably consents to
the service of process out of any of the aforementioned
courts in any such action or proceeding by the mailing
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of copies thereof by registered or certified mail,
postage prepaid, to such party at its address for notice
under this Agreement, such service to become effective
five (5) days after such mailing. Each of the parties
hereto hereby stipulates that the venues referenced in
this Section 18 are convenient, and each waives any
objection that it may now or hereafter have relating to
the venue or convenience of such courts.
(c) The parties hereto hereby agree that no party shall
request a trial by jury in the event of litigation
between them concerning this Agreement or any claims or
transactions in connection herewith, and any right to
trial by jury is expressly waived. Each of the parties
hereto hereby acknowledges that such waiver is made with
full understanding and knowledge of the nature of the
rights and benefits waived hereby.
In witness whereof the parties hereto have caused the execution
of this Agreement by their properly authorized signatories.
MEDALLION FUNDING CORP.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
___________________________
Chief Operating Officer
Title:________________________
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
___________________________
Chief Financial Officer
Title:________________________
BANK OF MONTREAL TRUST
COMPANY
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
___________________________
Title: Vice President
________________________
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