EXHIBIT 10.60
Swing Line Note, dated December 24, 1997, in the amount of $5,000,000 from
Medallion Funding Corp. payable to Fleet Bank, National Association.
SWING LINE NOTE
$5,000,000.00 No. SL
December 24, 1997
FOR VALUE RECEIVED, the undersigned, Medallion Funding Corp., a New
York corporation (the "Borrower"), hereby unconditionally promises to pay on the
date of Swing Line Maturity Date, 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, NATIONAL ASSOCIATION (the "Bank") at the
Agent Payment Office (as defined in the Loan Agreement), in lawful money of the
United States of America and in immediately available funds, an amount equal to
the lesser of (a) FIVE MILLION AND 00/100 DOLLARS ($5,000,000.00) and (b) the
aggregate unpaid principal amount of all Swing Line Loans made by the Bank to
the Borrower pursuant to the Amended and Restated Loan Agreement, dated as of
December 24, 1997, as amended, among the Borrower, the banks that from time to
time are signatories thereto, the Swing Line Lender, Fleet Bank NA as Arranger
and Agent, and The Bank of New York as Documentation 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 Swing Line 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,
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however, that the failure of the holder of this Note to insert any date or
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amount or other information on such schedule shall not in any manner affect the
obligation of the Borrower to repay any Swing Line 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), the outstanding
principal amount of this Note (including, to the extent permitted by law, unpaid
interest thereon) shall bear interest (the "Default Rate") at an annual rate
equal to the sum of 2% plus the Negotiated Rate applicable to such Swing Line
Loan then in effect. At the end of the applicable Swing Line Interest Period
for a Negotiated Rate Loan on which the Default Rate is being charged, such
Negotiated 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 at an annual
rate equal to the sum of 2% plus the Prime Rate then in effect and 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 change is adopted. In each case, interest at the
Default Rate shall be payable on demand, but in no event shall such rate of
interest 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.
This Note is the Swing Line Note 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
Swing Line Note required under the Loan Agreement. Reference is herein made to
the Loan Agreement for
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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 SWING LINE 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
SWING LINE 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 Swing Line Note shall be held invalid, illegal or
unenforceable, the validity of all other terms and provisions herein shall in no
way be affected thereby.
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IN WITNESS WHEREOF, Borrower has executed and delivered this Note on
the date first above written.
MEDALLION FUNDING CORP.,
a New York Corporation
By: /s/ Xxxxx Xxxxxxxx
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Xxxxx Xxxxxxxx
CEO
By: /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
Treasurer & CFO
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