8-K
Marblegate Capital Corp (MGTE)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): December 30, 2025
Marblegate Capital Corporation
(Exact name of registrant as specified in its charter)
| Delaware | 000-56734 | 92-2142791 |
|---|---|---|
| (State or other jurisdiction<br><br>of incorporation) | (Commission<br><br>File Number) | (IRS Employer<br><br>Identification No.) |
5 Greenwich Office Park, Suite 400
Greenwich, Connecticut
(Address of principal executive offices)
06831
(Zip Code)
(203)
210-6500
(Registrant’s telephone number, including area code)
Not Applicable
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
☐ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
☐ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
☐ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
☐ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class | Trading Symbol(s)* | Name of each exchange<br>on which registered |
|---|---|---|
| N/A<br><br>N/A | MGTE<br><br>MGTEW | N/A<br><br>N/A |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§ 230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§ 240.12b-2 of this chapter).
Emerging growth company ☒
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
*The registrant’s shares of common stock, par value $0.0001 per share, and warrants each trade over-the-counter on OTCQX® Best Market tier operated on the OTC Markets under the trading symbols “MGTE” and “MGTEW”, respectively.
Item 1.01. Entry into a Material Definitive Agreement.
$120,000,000 Revolving Loan Facility
On December 30, 2025, subsidiaries of Marblegate Capital Corporation (“MCC”) entered into a Receivables Loan and Security Agreement (the “Loan Agreement”) by and among DePalma Financing SPV I LLC (the “Borrower”), DePalma Acquisition I LLC (“DPA 1”), individually as servicer and as seller, the lenders from time to time party thereto (the “Lenders”), and DZ Bank AG Deutsche Zentral-Genossenschaftsbank, Frankfurt am Main, New York Branch, as agent (the “Agent”). Under the Loan Agreement, the Lenders agreed to provide a secured revolving loan facility (the “Facility”) to the Borrower in an aggregate principal amount of up to $120,000,000, available during a revolving period and maturing December 30, 2030, subject to earlier termination in accordance with the Loan Agreement. Advances under the Facility are secured by a first-priority perfected lien on substantially all of the Borrower’s assets, including eligible medallion loan receivables restructured under New York City’s Medallion Relief Program Plus (“MRP+”), taxi medallion collateral, related program rights, collection and lockbox accounts and proceeds, and related agreements and records.
Interest accrues on the unpaid principal amount of advances during each interest accrual period at a Facility Rate (as defined in the Loan Agreement) that, depending on funding sources, references either the applicable commercial paper rate or an alternative funding/base rate, together with specified margins and fees, subject to a maximum lawful rate. The Facility requires the payment of certain fees, including a non-use fee accruing daily on unused committed capacity, a lenders’ margin fee accruing daily on outstanding balances, and additional fees such as structuring, termination and make-whole fees, all as set forth in a separate facility fee letter.
The Loan Agreement contains customary conditions precedent to closing and funding and includes affirmative and negative covenants applicable to the Borrower, DPA 1 and MCC, as well as customary reporting obligations, early amortization events and events of default. Among other covenants:
- MCC must maintain Consolidated Net Worth of at least $100,000,000 at all times and, commencing with the fiscal year ending December 31, 2026, Adjusted Consolidated Net Income of at least $1 per fiscal year;
- By January 31, 2026, the Borrower must maintain interest rate hedging so that the hedge percentage is at all times not less than 80% and not greater than 110% of the estimated Facility balance, through interest rate caps, swaps or other instruments acceptable to the Agent;
- The parties must comply with the MRP+ program documents and maintain perfection of liens in receivables and medallions;
- As a condition precedent to receiving an initial advance under the Facility, MCC purchased 100% of the outstanding equity interests in TML IV LLC from TML Holding LLC, the proceeds of which were paid directly to DZ Bank in full satisfaction of certain obligations owed by TML IV LLC and TML Holding LLC to DZ Bank; and
- The Borrower must use proceeds for fees and expenses related to the Loan Agreement and for working capital and general corporate purposes, and must comply with applicable anti-corruption, anti-money laundering and sanctions laws.
The Loan Agreement includes customary reporting obligations and events of default, including, but not limited to, insolvency events with respect to MCC or the Borrower, breaches of financial covenants, payment defaults, cross-defaults, failure to maintain perfected first-priority liens on Pledged Collateral, specified performance and reporting failures, certain default rate triggers and delinquency ratio triggers tied to Reserve Fund coverage, “Material Adverse Change,” change of control, and impairment of the MRP+ program. Upon an event of default, the Agent may accelerate the Facility, exercise remedies under the Uniform Commercial Code, and enforce rights in the Pledged Collateral. The Loan Agreement further provides “Early Amortization Events” under which the revolving period terminates automatically, including certain delinquency/default ratio triggers and failure to maintain required hedging.
In connection with the Facility, MCC executed a Performance Guaranty dated as of December 30, 2025 (the “Performance Guaranty”), in favor of the Borrower, the Agent and the Lenders, pursuant to which MCC unconditionally guaranteed certain obligations of DPA 1 under the Loan Agreement and related transaction documents.
Also on December 30, 2025, DPA 1 entered into related transaction documents, including (i) a Purchase and Contribution Agreement (the “Purchase and Contribution Agreement”) pursuant to which DPA 1 sold and contributed medallion loans and related property to the Borrower and (ii) a Pledge and Security Agreement (the “Equity Pledge and Security Agreement”) pursuant to which DPA 1 pledged its equity interests in the Borrower to the Agent to secure the Facility.
TML IV Membership Interest Purchase
On December 30, 2025, MCC also entered into a Membership Interest Purchase Agreement (the “MIPA”) with TML Holding, Inc. (the “Seller”) and DZ Bank AG Deutsche Zentral-Genossenschaftsbank, Frankfurt Am Main, New York Branch, pursuant to which MCC purchased 100% of the membership interests in TML IV LLC (“TML IV”) for a purchase price of approximately $15.8 million. The MIPA includes customary representations, warranties and indemnities concerning TML IV’s business, which is exclusively engaged in owning, holding, administering and financing taxi medallion loans, and addresses the payoff of TML IV’s obligations to DZ Bank from the sale proceeds at closing.
Mini-Fleet Vehicle Loan
On December 31, 2025, certain wholly owned subsidiaries (the “Mini-Fleets”) of DePalma Acquisition II LLC (“DPA 2”) entered into a Loan and Security Agreement (the “Vehicle Loan Agreement”) with Auxilior Capital Partners, Inc. (“Auxilior”), which provides for loans in the aggregate amount of approximately $17.2 million to finance certain fleets of taxicab vehicles. As security for the obligations under the Vehicle Loan Agreement and associated promissory notes, the Mini-Fleets granted Auxilior a security interest in certain vehicles held by the Mini-Fleets (excluding any related taxi medallions). MCC, along with DPA 1, DPA 2 and Septuagint Solutions LLC, executed a Guaranty (the “Guaranty”) in favor of Auxilior guaranteeing the obligations under the Vehicle Loan Agreement and associated promissory notes.
The promissory notes under the Vehicle Loan Agreement bear interest at a fixed rate of 8.5% per annum. The agreement provides for a late charge of 5% for payments more than five days past due and a default interest rate of an additional 3% per annum.
The Vehicle Loan Agreement contains affirmative and negative covenants customary for transactions of this type. The Guaranty requires MCC, as guarantor, to maintain (i) total equity of at least $100,000,000, (ii) a Total Debt to Equity ratio not to exceed 1.75x, and (iii) a Debt Service Coverage Ratio of at least 1.0x, with testing for the DSCR to begin on June 30, 2027. The Mini-Fleets are also subject to covenants regarding the use, maintenance, and insurance of the vehicle collateral, financial reporting, and compliance with applicable laws.
The Vehicle Loan Agreement includes customary events of default, including, among others, non-payment of principal or interest, breaches of covenants, material inaccuracy of representations, bankruptcy or insolvency events, and cross-defaults to other material indebtedness. Upon the occurrence of an event of default, Auxilior may, among other remedies, accelerate all outstanding obligations and exercise its rights as a secured party with respect to the vehicle collateral.
The foregoing descriptions of the Loan Agreement, Performance Guaranty, Purchase and Contribution Agreement, Equity Pledge and Security Agreement, MIPA, Vehicle Loan Agreement, Guaranty and related promissory notes do not purport to be complete and are qualified in their entirety by reference to the full text of such agreements, which are filed as exhibits to this Current Report on Form 8-K.
Item 2.03. Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
The information set forth under Item 1.01 of this Current Report on Form 8-K with respect to (i) the Facility under the Loan Agreement and MCC’s Performance Guaranty thereunder and (ii) the Vehicle Loan Agreement and associated Guaranty in favor of Auxilior is incorporated by reference herein.
Item 7.01. Regulation FD Disclosure.
On January 5, 2026, MCC issued a press release announcing the Facility and the Mini-Fleet Vehicle Loan. A copy of the press release is furnished as Exhibit 99.1 to this Current Report on Form 8-K and is incorporated herein by reference. The information furnished on this report, including Exhibit 99.1 hereto, shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934 (the “Exchange Act”) or otherwise subject to the liabilities of that section, nor shall it be deemed incorporated by reference into any other filing under the Securities Act of 1933 or the Exchange Act, except as expressly set forth by specific reference in such a filing.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| Dated: January 6, 2026 | Marblegate Capital Corporation | |
|---|---|---|
| By: | /s/ Andrew Milgram | |
| S | Name: | Andrew Milgram |
| Title: | Chief Executive Officer |
EX-10.1
Certain confidential information contained in this document, marked by “[***]”, has been omitted pursuant to Item 601(b)(10)(iv) of Regulation S-K because it is both (i) not material and (ii) is the type of information that the Company treats as private or confidential. Certain schedules (or similar attachments) also marked by “[***]” have been omitted pursuant to Item 601(a)(5) of Regulation S-K.
EXECUTION COPY
Receivables Loan and Security Agreement
by and among
DePalma Financing SPV I LLC
as Borrower
DePalma Acquisition I LLC
as Servicer
The Several Financial Institutions or Entities From Time to Time Party hereto
as Lenders
and
DZ Bank AG Deutsche Zentral-Genossenschaftsbank, Frankfurt Am Main, New York Branch
as Agent
Dated as of December 30, 2025
Table of Contents
Article 1 Definitions and Usage
Section 1.1 Definitions......................................................................................................................... 2
Section 1.2 Usage............................................................................................................................... 35
(a) Accounting and UCC Terms................................................................................................... 35
(b) Section References, Etc......................................................................................................... 36
(c) Inclusion................................................................................................................................. 36
(d) Hereof, Herein and Hereunder.............................................................................................. 36
(e) Asset and Property................................................................................................................ 36
(f) Word Forms........................................................................................................................... 36
(g) Agreements and Statutes...................................................................................................... 36
(h) Successors and Assigns.......................................................................................................... 36
(i) Payments, Etc........................................................................................................................ 36
(j) Time....................................................................................................................................... 36
(k) Headings................................................................................................................................ 37
Article 2 The Facility
Section 2.1 Advances.......................................................................................................................... 37
Section 2.2 Funding Procedures......................................................................................................... 37
(a) Borrowing Request................................................................................................................ 37
(b) Funding.................................................................................................................................. 37
(c) Several Obligations, Etc......................................................................................................... 38
Section 2.3 Interest ............................................................................................................................ 38
(a) Accrual and Payment ............................................................................................................. 38
(b) Interest Convention............................................................................................................... 38
(c) Maximum Lawful Rate........................................................................................................... 38
(d) Default Interest...................................................................................................................... 38
Section 2.4 Payments, Computations, Etc.......................................................................................... 38
(a) Payments............................................................................................................................... 38
(b) Business Days, Etc.................................................................................................................. 39
(c) Set-Off, Etc............................................................................................................................. 39
(d) Reinstatement....................................................................................................................... 39
Section 2.5 Non-Use Fee..................................................................................................................... 39
(a) Accrual of Non-Use Fee......................................................................................................... 39
(b) Unused Capacity.................................................................................................................... 40
(c) Payment of Non-Use Fee....................................................................................................... 40
Section 2.6 Lenders' Fee..................................................................................................................... 40
(a) Accrual of Lenders' Fee.......................................................................................................... 40
(b) Payment of Lenders' Fee....................................................................................................... 40
Section 2.7 Other Facility Fees........................................................................................................... 40
Section 2.8 Mandatory Payment of Principal..................................................................................... 41
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(a) Prepayments to Cure Facility Borrowing Base Deficiency..................................................... 41
(b) Prepayments on Settlement Date......................................................................................... 41
(c) Payment at Maturity ............................................................................................................. 41
(d) No Other Prepayments.......................................................................................................... 41
Section 2.9 Voluntary Prepayments................................................................................................... 41
Section 2.10 Notes................................................................................................................................ 41
Section 2.11 Pro Rata Treatment.......................................................................................................... 41
Section 2.12 Reserve Requirements; Increased Costs.......................................................................... 42
Section 2.13 Breakage Costs................................................................................................................. 43
Section 2.14 Taxes................................................................................................................................ 43
Section 2.15 Duty to Mitigate............................................................................................................... 45
Section 2.16 Loan Identifiers................................................................................................................ 46
Article 3 Security Interest
Section 3.1 Grant of Security Interest................................................................................................ 47
Section 3.2 Delivery of Collateral........................................................................................................ 47
Section 3.3 Collateral Assignment...................................................................................................... 48
Section 3.4 Borrower Remains Liable................................................................................................. 48
Section 3.5 Taxes................................................................................................................................ 48
Section 3.6 Further Assurances; Financing Statements...................................................................... 48
(a) Further Assurances................................................................................................................ 48
(b) Authorization to File Financing Statements........................................................................... 49
(c) Additional Information.......................................................................................................... 49
Section 3.7 Limitation on Duties Regarding Presentation of Collateral.............................................. 49
Section 3.8 Powers Coupled with an Interest..................................................................................... 49
Section 3.9 Release of Security Interest............................................................................................. 49
Article 4 Conditions Precedent
Section 4.1 Closing Date Conditions Precedent.................................................................................. 50
(a) Required Documents............................................................................................................. 50
(b) Payment of Fees and Expenses.............................................................................................. 51
(c) Compliance............................................................................................................................ 51
(d) No Default, Etc....................................................................................................................... 52
(e) Credit Approval...................................................................................................................... 52
Section 4.2 Conditions Precedent to All Advances............................................................................. 52
(a) Payment of Fees and Expenses.............................................................................................. 52
(b) Compliance............................................................................................................................ 52
(c) No Default, Etc....................................................................................................................... 52
(d) Hedging Transactions............................................................................................................ 52
(e) Availability............................................................................................................................. 52
(f) Borrowing Request................................................................................................................ 53
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(g) Purchase of Receivables........................................................................................................ 53
(h) Delivery of Receivable Files................................................................................................... 53
(i) Loan Enhancement Agreement Assignment......................................................................... 53
(j) TML IV Closing....................................................................................................................... 53
Section 4.3 Advances Do Not Constitute a Waiver............................................................................. 54
Article 5 Representations and Warranties
Section 5.1 Financial Condition.......................................................................................................... 54
(a) Equity.................................................................................................................................... 54
(b) Profitability........................................................................................................................... 54
Section 5.2 Organization, Etc.............................................................................................................. 54
Section 5.3 Collateral.......................................................................................................................... 54
Section 5.4 Consents.......................................................................................................................... 54
Section 5.5 Governmental Authorization; Other Consents................................................................ 55
Section 5.6 Financial Statements; No Material Adverse Effect.......................................................... 55
(a) Audited Financial Statements................................................................................................ 55
(b) Unaudited Financial Statements............................................................................................ 55
(c) No Material Adverse Effect.................................................................................................... 55
Section 5.7 Actions Before Governmental Authorities....................................................................... 55
Section 5.8 Litigation.......................................................................................................................... 56
Section 5.9 Laws, Etc.......................................................................................................................... 56
(a) No Violation, Etc.................................................................................................................... 56
(b) Investment Company Act, Margin Regulations, Etc.............................................................. 56
(c) Sanctions............................................................................................................................... 56
Section 5.10 Compliance with MRP+ Program, Etc.............................................................................. 57
Section 5.11 Information Correct and Current..................................................................................... 57
Section 5.12 Hedging Transactions....................................................................................................... 57
Section 5.13 Tax Matters...................................................................................................................... 57
Section 5.14 Solvency........................................................................................................................... 58
Section 5.15 ERISA................................................................................................................................ 58
Article 6 Insurance; Indemnification
Section 6.1 Insurance Coverage.......................................................................................................... 58
Section 6.2 Certificates....................................................................................................................... 58
Section 6.3 Borrower Indemnity......................................................................................................... 58
Section 6.4 Servicer Indemnity........................................................................................................... 60
(a) Indemnity Obligations of the Servicer................................................................................... 60
(b) Survival of Servicer Indemnities............................................................................................ 61
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Article 7 Reporting
Section 7.1 Monthly Settlement Reports........................................................................................... 61
Section 7.2 Financial Statements........................................................................................................ 62
(a) MCC Annual Audited Financial Statements........................................................................... 62
(b) Borrower Annual Unaudited Financial Statements............................................................... 62
(c) MCC Quarterly Unaudited Financial Statements................................................................... 62
(d) Borrower Quarterly Unaudited Financial Statements........................................................... 62
Section 7.3 AUP Reports..................................................................................................................... 63
Section 7.4 Other Reports.................................................................................................................. 63
(a) Compliance Certificate.......................................................................................................... 63
(b) Required Filings..................................................................................................................... 63
(c) Additional Reports................................................................................................................. 63
(d) Certain AML Events............................................................................................................... 63
Section 7.5 Notices............................................................................................................................. 63
Section 7.6 Other Information............................................................................................................ 64
Article 8 Affirmative Covenants
Section 8.1 Hedge Requirement......................................................................................................... 64
Section 8.2 Fiscal Years....................................................................................................................... 65
Section 8.3 Compliance with MRP+ Program Documents.................................................................. 65
Section 8.4 Performance and Compliance with Receivables.............................................................. 65
Section 8.5 Preservation of Existence, Etc.......................................................................................... 65
Section 8.6 Maintenance of Properties.............................................................................................. 65
Section 8.7 Payment of Obligations.................................................................................................... 65
Section 8.8 Audits and Inspection...................................................................................................... 66
(a) Semi-Annual Compliance Reviews......................................................................................... 66
(b) Participation in Meetings....................................................................................................... 66
(c) Expenses................................................................................................................................ 66
Section 8.9 Further Assurances.......................................................................................................... 66
(a) Generally............................................................................................................................... 66
(b) Authorization......................................................................................................................... 67
Section 8.10 Collateral.......................................................................................................................... 67
Section 8.11 Commercial Tort Claims................................................................................................... 67
Section 8.12 Taxes................................................................................................................................ 67
Section 8.13 Ownership and Subsidiaries............................................................................................. 67
Section 8.14 Independent Managers.................................................................................................... 67
Section 8.15 Use of Proceeds............................................................................................................... 68
Section 8.16 Compliance with Laws..................................................................................................... 68
Section 8.17 Risk Retention.................................................................................................................. 69
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Section 8.18 Books and Records........................................................................................................... 69
Section 8.19 Transactions with Affiliates or Other Related Persons.................................................... 69
Article 9 Negative Covenants
Section 9.1 Certain Liens, Transfers and Indebtedness...................................................................... 70
(a) Borrower Assets.................................................................................................................... 70
(b) Change of Control.................................................................................................................. 70
(c) Member Indebtedness.......................................................................................................... 70
Section 9.2 Investments..................................................................................................................... 70
Section 9.3 ERISA................................................................................................................................ 70
Section 9.4 Corporate Changes.......................................................................................................... 70
Section 9.5 Conduct of Business......................................................................................................... 71
Section 9.6 Special-Purpose Entity..................................................................................................... 71
(a) Other Activities...................................................................................................................... 71
(b) Other Assets.......................................................................................................................... 71
(c) Merger, Etc............................................................................................................................ 71
(d) Existence; Organizational Documents................................................................................... 71
(e) Subsidiaries, Etc..................................................................................................................... 71
(f) Commingling of Assets.......................................................................................................... 71
(g) Other Indebtedness............................................................................................................... 71
(h) Separate Books and Records................................................................................................. 71
(i) Dealings With Affiliates......................................................................................................... 71
(j) Dissolution............................................................................................................................. 71
(k) Separate Identity................................................................................................................... 72
(l) Guarantees............................................................................................................................ 72
(m) Loans, Etc............................................................................................................................... 72
(n) Appearance of Liability.......................................................................................................... 72
(o) Inadequate Capital................................................................................................................ 72
(p) Appearance of Separateness................................................................................................. 72
(q) Separate Financial Statements.............................................................................................. 72
(r) Payment of Liabilities............................................................................................................ 72
(s) Payment of Salaries............................................................................................................... 72
(t) Investment in Affiliates.......................................................................................................... 72
(u) Allocation of Expenses........................................................................................................... 72
(v) Hypothecation....................................................................................................................... 72
(w) Independent Manager........................................................................................................... 72
Section 9.7 Tax Status......................................................................................................................... 73
Article 10 Accounts and Payments
Section 10.1 Accounts.......................................................................................................................... 73
(a) Collection Account................................................................................................................ 73
(b) Lockbox Account................................................................................................................... 73
(c) Taxes, Checks, Etc................................................................................................................. 73
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(d) Authorization, Etc.................................................................................................................. 73
(e) Eligible Investments............................................................................................................... 74
Section 10.2 Priority of Payments........................................................................................................ 74
Article 11 Servicing
Section 11.1 Appointment and Designation of the Servicer................................................................. 76
(a) Initial Servicer........................................................................................................................ 76
(b) Delegation............................................................................................................................. 76
Section 11.2 Duties of the Servicer....................................................................................................... 76
(a) Accepted Servicing Practices................................................................................................. 76
(b) Duties..................................................................................................................................... 76
(c) Regulatory Actions, Etc.......................................................................................................... 77
Section 11.3 Collections and Modifications.......................................................................................... 77
(a) Collections............................................................................................................................. 77
(b) Modifications......................................................................................................................... 78
Section 11.4 Realization upon Receivables.......................................................................................... 78
(a) Default................................................................................................................................... 78
(b) Liquidation, Etc...................................................................................................................... 78
Section 11.5 Maintenance of Security Interests................................................................................... 78
(a) Security Interests................................................................................................................... 78
(b) Perfection.............................................................................................................................. 79
Section 11.6 Medallions....................................................................................................................... 79
(a) Enforcement of Prohibition on Transfer of Medallions......................................................... 79
(b) Conservation and Disposition of Medallions......................................................................... 79
Section 11.7 MRP+ Program................................................................................................................. 79
Section 11.8 Deposits to Accounts....................................................................................................... 80
Section 11.9 Servicer Fees and Expenses............................................................................................. 80
(a) Servicer Fee........................................................................................................................... 80
(b) Servicer Expenses.................................................................................................................. 80
Section 11.10 Servicer Defaults.............................................................................................................. 80
(a) Misrepresentation................................................................................................................. 80
(b) Breach of Agreement............................................................................................................. 81
(c) Failure to Pay or Remit.......................................................................................................... 81
(d) Bankruptcy............................................................................................................................. 81
(e) Material Adverse Change...................................................................................................... 81
Section 11.11 Termination, Replacement and Resignation of Servicer.................................................. 81
(a) Servicer Removal Notice........................................................................................................ 81
(b) Appointment of Replacement Servicer................................................................................. 81
(c) Survival.................................................................................................................................. 82
(d) Limitation on Resignation of the Servicer.............................................................................. 82
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Article 12 Early Amortization
Section 12.1 Early Amortization Events................................................................................................ 82
(a) Regulatory Event................................................................................................................... 82
(b) Event of Default..................................................................................................................... 82
(c) Servicer Default..................................................................................................................... 83
(d) Delinquency and Reserve Event............................................................................................ 83
(e) Default Rate Event................................................................................................................. 83
(f) Excess Spread Failure............................................................................................................. 83
(g) Failure to Satisfy Hedge Requirement................................................................................... 83
(h) MRP+ Program Impairment................................................................................................... 83
Section 12.2 Consequences of Early Amortization Event..................................................................... 83
Article 13 Events of Default; Remedies
Section 13.1 Events of Default.............................................................................................................. 84
(a) Bankruptcy............................................................................................................................. 84
(b) Breach of Financial Covenant................................................................................................ 84
(c) Misrepresentation................................................................................................................. 84
(d) Breach of Agreement............................................................................................................. 84
(e) Borrowing Base Deficiency.................................................................................................... 84
(f) Failure to Pay or Remit.......................................................................................................... 84
(g) Cross-Default......................................................................................................................... 84
(h) Collateral Event...................................................................................................................... 85
(i) Hedge Default........................................................................................................................ 85
(j) Qualification of Financial Statements.................................................................................... 85
(k) Delinquency and Reserve Event............................................................................................ 85
(l) Default Rate Event................................................................................................................. 85
(m) Servicer Default..................................................................................................................... 86
(n) Change of Control.................................................................................................................. 86
(o) Material Adverse Change...................................................................................................... 86
(p) Unpaid Obligations at Maturity............................................................................................. 86
(q) MRP+ Program Impairment................................................................................................... 86
(r) Amendment Without Consent.............................................................................................. 86
(s) Assignment Without Consent................................................................................................ 86
(t) Attachments; Judgments....................................................................................................... 86
(u) Reporting Failure................................................................................................................... 86
(v) Investment Company Act...................................................................................................... 87
(w) ERISA Lien.............................................................................................................................. 87
Section 13.2 Remedies......................................................................................................................... 87
(a) Acceleration, Etc.................................................................................................................... 87
(b) Collection; Foreclosure.......................................................................................................... 87
(c) No Waiver.............................................................................................................................. 88
(d) Cumulative Remedies............................................................................................................ 88
Section 13.3 Power of Attorney............................................................................................................ 88
(a) Appointment......................................................................................................................... 88
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(b) Delivery of Power of Attorney............................................................................................... 88
Article 14 Miscellaneous
Section 14.1 Severability...................................................................................................................... 88
Section 14.2 Notices............................................................................................................................. 88
Section 14.3 Entire Agreement; Amendments..................................................................................... 89
(a) Entire Agreement.................................................................................................................. 89
(b) Amendments and Waivers.................................................................................................... 90
Section 14.4 No Strict Construction...................................................................................................... 90
Section 14.5 No Waiver........................................................................................................................ 90
Section 14.6 Survival............................................................................................................................. 91
Section 14.7 Binding Effect, Assignment, Etc....................................................................................... 91
(a) Binding Effect........................................................................................................................ 91
(b) Assignment by MCC Entities.................................................................................................. 91
(c) Assignment by Lenders and Agent........................................................................................ 91
(d) Assignments Between Conduit Lenders and Liquidity Providers.......................................... 91
Section 14.8 Recourse Against Certain Parties..................................................................................... 92
Section 14.9 No Proceedings................................................................................................................ 92
Section 14.10 Rule 17g-5 Information.................................................................................................... 92
Section 14.11 Acknowledgement and Consent to Bail-In of EEA Financial Institutions......................... 93
(a) Acknowledgement and Consent........................................................................................... 93
(b) Certain Definitions Relating to EU Bail-In.............................................................................. 94
Section 14.12 Governing Law................................................................................................................. 94
Section 14.13 Consent to Jurisdiction and Venue.................................................................................. 95
Section 14.14 Mutual Waiver of Jury Trial / Judicial Reference............................................................. 95
Section 14.15 Fees and Expenses........................................................................................................... 96
(a) Closing................................................................................................................................... 96
(b) Post-Closing........................................................................................................................... 96
Section 14.16 Confidentiality.................................................................................................................. 96
(a) Confidentiality Obligation...................................................................................................... 96
(b) Permitted Disclosures............................................................................................................ 96
(c) Certain Duties........................................................................................................................ 98
(d) Obligations Regarding MNPI.................................................................................................. 98
Section 14.17 Assignment of Rights....................................................................................................... 98
(a) Assignment............................................................................................................................ 98
(b) Register.................................................................................................................................. 99
(c) Registered Form.................................................................................................................... 99
(d) Evidence of Assignment......................................................................................................... 99
Section 14.18 Participations................................................................................................................... 99
(a) Generally............................................................................................................................... 99
(b) Participation Agreements...................................................................................................... 99
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(c) Benefit of Certain Provisions................................................................................................. 99
(d) Facility Participant Register................................................................................................. 100
Section 14.19 Revival of Secured Obligations....................................................................................... 100
Section 14.20 Counterparts.................................................................................................................. 101
Section 14.21 No Third-Party Beneficiaries.......................................................................................... 101
Section 14.22 Agency............................................................................................................................ 101
Exhibits
Exhibit A Form of Facility Note
Exhibit B Borrower Information
Exhibit C Form of Monthly Settlement Report
Exhibit D Form of Compliance Certificate
Exhibit E Form of Borrowing Request
Exhibit F Form of Borrowing Base Certificate
Exhibit G Form of Borrower Power of Attorney
Exhibit H Form of Collection Account Control Agreement
Exhibit I Form of Lockbox Account Control Agreement
Exhibit J Form of Performance Guaranty
Exhibit K Form of Medallion Loan Agreement
Exhibit L Loan Enhancement Agreement
Annexes
Annex I Credit and Collection Policy
Annex II Agreed-Upon Procedures
Annex III Lender Percentages
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Receivables Loan and Security Agreement
This Receivables Loan and Security Agreement, dated as of December 30, 2025 (as amended, restated, supplemented or otherwise modified from time to time, this "Agreement"), is entered into by and among:
(a) DePalma Financing SPV I LLC, a Delaware limited liability company (the "Borrower");
(b) DePalma Acquisition I LLC, a Delaware limited liability company ("DPA 1"), as servicer pursuant to Article 11 (Servicing) and the other provisions of this Agreement (together with its successors and assigns, in such capacity, the "Servicer") (as defined in paragraph 2 under Preliminary Statements below);
(c) the Several Financial Institutions or Entities From Time to Time Party to This Agreement as Lenders (the "Lenders"); and
(d) DZ Bank AG Deutsche Zentral-Genossenschaftsbank, Frankfurt Am Main, New York Branch ("DZ Bank"), as agent for the Lenders and the other Secured Parties (together with its successors and assigns, in such capacity, the "Agent," and, together with the Borrower, the Servicer and the Lenders, collectively, the "Parties," and each, a "Party").
- Preliminary Statements
- A. DPA 1 and DePalma Acquisition II, LLC, a Delaware limited liability company ("DPA 2"), each of which is a Subsidiary of Marblegate Capital Corporation, a Delaware corporation ("MCC"), have acquired certain Medallion Loans, directly or indirectly, from third-party originators and restructured such loans pursuant to the MRP+ Program.
B. Each such Medallion Loan is secured by a pledge or collateral assignment of the related Medallion and certain other Medallion Collateral and has the benefit of a Supplemental Loan Deficiency Guaranty provided under the MRP+ Program.
It is contemplated that, pursuant to the Purchase and Contribution Agreement, dated as of December 30, 2025 (as amended, restated, supplemented or otherwise modified from time to time, the "Purchase Agreement"), between DPA 1, as seller (the "Seller"), and the Borrower, the Seller will sell and/or contribute Medallion Loans and Other Transferred Property, from time to time, to the Borrower (certain of which DPA 1 may acquire, directly or indirectly, from DPA 2).
A. In order to fund, in part, the purchase prices payable for the Medallion Loans and Other Transferred Property purchased by the Borrower, from time to time, under the Purchase Agreement, the Borrower has requested that the Lenders make a revolving loan facility (the "Facility") available to it.
B. The Lenders are willing to provide the Facility on the terms, and subject to the conditions, set forth in this Agreement.
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Now, therefore, in consideration of the foregoing premises, the Parties, intending to be legally bound, hereby agree as follows:
- Definitions and Usage
- Definitions. Unless otherwise defined herein, the following capitalized terms shall have the following meanings:
"Accepted Servicing Practices" has the meaning specified in Section 11.2(a) (Accepted Servicing Practices) below.
"Account Banks" means the Collection Account Bank and the Lockbox Account Bank.
"Account Control Agreements" means, collectively, the Collection Account Control Agreement and the Lockbox Account Control Agreement.
"Accounts" means, collectively, the Collection Account and the Lockbox Account.
"Accrued Interest" means, as of any date of determination, the total amount of accrued and unpaid interest on the Advances through and including such date.
"Additional Receivables" means, with respect to any Borrowing Date, the additional Receivables to be transferred to the Borrower pursuant to the Purchase Agreement, and included in the Borrowing Base, with respect to such Borrowing Date.
"Adjusted Consolidated Net Income" means, for any period, and with respect to any Person, the Consolidated Net Income of such Person, plus without duplication and to the extent deducted (and not added back) in calculating such consolidated net income (or loss), the following amounts:
- the amount of any management fees accrued or paid by MCC to MAM pursuant to the Management Services Agreement; and
- (i) any non-cash charges, expenses, or losses, including, without limitation, depreciation and amortization, losses from changes in accounting principles, (ii) any impairment (including impairment of intangibles and goodwill), (iii) any realized or unrealized gains or losses (including the mark to market value of any hedging transaction), (iv) dividends paid on equity interests and (v) non-cash compensation charges or expenses recorded from grants of stock appreciation or similar rights;
provided, however, that:
(1) for the avoidance of doubt, any amounts added back to Adjusted Consolidated Net Income pursuant to the foregoing clauses (a) and (b) of this definition shall be determined on a pre-tax basis and only to the extent such amounts were deducted in the calculation of Consolidated Net Income for such period and such Person in accordance with GAAP; and
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(2) notwithstanding anything to the contrary in the foregoing part of this definition, Adjusted Consolidated Net Income shall be calculated before giving effect to:
(A) any income or gain excluded from Consolidated Net Income under GAAP; or
(B) any item of income or gain, to the extent that it represents a cash receipt in respect of any non-cash gain or income previously added back pursuant to the foregoing clauses (a) and (b) of this definition.
Subject, in all respects, to the foregoing part of this definition and the other provisions of this Agreement, determinations of Adjusted Consolidated Net Income shall be made in a manner consistent with the historical accounting practices of MCC (except as otherwise required by changes in GAAP).
"Advance" has the meaning specified in Section 2.1 (Advances) below.
"Advance Rate" means 80.00%.
"Affiliate" means any Person that directly or indirectly Controls, is Controlled by, or is under common Control with, the Person in question, and "Affiliated" has a meaning correlative to the foregoing.
"Affiliated Parties" and "Affiliated Party" have the respective meanings specified in clause (i) of Section 14.16(b) (Permitted Disclosures) below.
"Agent" has the meaning specified in paragraph (d) of the preamble to this Agreement.
"Agreement" has the meaning specified in the preamble hereto.
"Alternative Funding Rate" means, for any day, and with respect to any Lender, an interest rate per annum equal to the greater of:
- such Lender's cost of funds for funding and maintaining such Lender's Advances, as certified by such Lender in writing to the Borrower from time to time
and
- 0.25%.
"Amortization Period" means the period (a) commencing on (and including) the Revolving Period End Date and (b) ending on (and including) the Final Settlement Date.
"Annualized Default Rate" means, as of the end of the most recently ended Remittance Period, a percentage equal to:
- the product of:
- the aggregate outstanding balance of all Receivables (including, without limitation, Receivables that have been repurchased by the Seller during such Remittance Period) that became Defaulted Receivables during such Remittance Period, reduced by the
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- aggregate amount of Collections related to these Defaulted Receivables received during such Remittance Period
multiplied by
- 12
divided by
- the Eligible Receivables Balance as of the first day of such Remittance Period.
"Anti-Corruption Laws" means all laws, rules, and regulations of any jurisdiction applicable to the Borrower or any of its Affiliates from time to time concerning or relating to bribery or corruption, including without limitation the United States Foreign Corrupt Practices Act of 1977, as amended, the UK Bribery Act 2010 and other similar legislation in any other jurisdictions.
"Anti-Terrorism Laws" means any laws, rules, regulations or orders relating to terrorism or money laundering, including without limitation Executive Order No. 13224 (effective September 24, 2001), the USA PATRIOT Act, the laws comprising or implementing the Bank Secrecy Act, and the laws administered by OFAC.
"Applicable Law" means, with respect to any Person, all existing and future applicable laws, rules, regulations (including proposed, temporary and final income tax regulations), administrative guidance, statutes, treaties, codes, ordinances, permits, certificates, orders and licenses of and interpretations by any Governmental Authority, and applicable judgments, decrees, injunctions, writs, orders or line action of any court, arbitrator or other administrative, judicial or quasi-judicial tribunal or agency of competent jurisdiction.
"Assigned Documents" has the meaning specified in Section 3.3 (Collateral Assignment) below.
"Assignment" has the meaning specified in the Purchase Agreement.
"Assignment and Acceptance" means assignment and acceptance, in form and substance acceptable to the Agent, pursuant to which a Person becomes a party to this Agreement as a Lender.
"Authorized Officer" means, with respect to any MCC Entity, any of the chief executive officer, president, chief financial officer, managing director, treasurer, controller, executive vice president, senior vice president or other officer of similar or higher rank of such MCC Entity, who is acting in its capacity as an officer of such MCC Entity and authorized to act on behalf of such MCC Entity pursuant to the Transaction Documents and who is identified on the incumbency certificate delivered by such MCC Entity to the Agent on the Closing Date (as any such incumbency certificate may be modified or supplemented by such MCC Entity from time to time thereafter and delivered to the Agent).
"Autobahn" means Autobahn Funding Company LLC, a Delaware limited liability company.
"Available Funds" means, for any Settlement Date and the related Remittance Period (without duplication):
- all Collections and other amounts on deposit in the Collection Account on the related Determination Date; and
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- the net amount (if any) received from the Hedge Provider pursuant to the Hedge Agreement in respect of such Settlement Date.
"Availability" means, at any time, an amount in USD equal to the greater of:
- zero
and
- the difference of:
- the lesser of:
- the Borrowing Base
and
- the Borrowing Limit (USD 120,000,000)
minus
- the Facility Balance.
"Bail-In Action" has the meaning specified in Section 14.11(b) (Certain Definitions Relating to EU Bail-In) below.
"Bail-In Legislation" has the meaning specified in Section 14.11(b) (Certain Definitions Relating to EU Bail-In) below.
"Bankruptcy Code" means the United States Bankruptcy Code, 11 U.S.C. §101, et seq.
"Base Rate" means the fluctuating rate per annum announced by DZ Bank from time to time as its prime commercial rate in the United States, such rate to change as and when such designated rate changes. The Base Rate is not intended to be the lowest rate of interest charged by DZ Bank or any other specified financial institution in connection with extensions of credit to debtors.
"Basel III" means Basel III: A global regulatory framework for more resilient banks and banking systems, prepared by the Basel Committee on Banking Supervision, and all national implementations thereof.
"Blocked Person" means any Person (a) listed in the annex to, or is otherwise subject to the provisions of, Executive Order No. 13224, (b) owned or controlled by, or acting for or on behalf of, any Person that is listed in the annex to, or is otherwise subject to the provisions of, Executive Order No. 13224, (c) with which any Lender is prohibited from dealing or otherwise engaging in any transaction by any Anti-Terrorism Law, (d) that commits, threatens or conspires to commit or supports "terrorism" as defined in Executive Order No. 13224 or (e) that is named a "specially designated national" or "blocked person" on the most current list published by OFAC or other similar list.
"Borrower" has the meaning specified in paragraph (a) of the preamble to this Agreement.
"Borrower LLC Agreement" means the Second Amended and Restated Limited Liability Company Agreement, dated as of December 30, 2025, of the Borrower, by and among DPA 1, as the sole member
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thereunder, and Orlando C. Figueroa and Dewen Tarn, as the initial Independent Managers of the Borrower, as the same may be amended, restated, supplemented or otherwise modified from time to time.
"Borrower Power of Attorney" has the meaning specified in Section 13.3(b) (Delivery of Power of Attorney) below.
"Borrowing Base" means, at any time, an amount equal to the sum of:
- the product of:
- the Net Eligible Receivables Balance
multiplied by
- the Advance Rate
plus
- all Collections on deposit in the Collection Account (net of any Accrued Interest, accrued Facility Fees and accrued and unpaid third-party fees and expenses which are allocable or related to the Facility through the end of the related Remittance Period and to become due at the next Settlement Date).
"Borrowing Base Certificate" means a certificate, substantially in the form of Exhibit F (Form of Borrowing Base Certificate) to this Agreement, delivered with each Borrowing Request.
"Borrowing Base Deficiency" means a condition that shall be deemed to exist, if, as of the relevant date of determination, the Borrowing Base Deficiency Amount is greater than zero.
"Borrowing Base Deficiency Amount" means, at any time, the greater of:
- zero
and
- an amount in USD equal to the difference of:
- the Facility Balance
minus
- the Borrowing Base.
"Borrowing Date" means each Business Day on which an Advance is made pursuant to Section 2.1 (Advances) below.
"Borrowing Limit" means USD 120,000,000.
"Borrowing Request" means a written notice, signed by an Authorized Officer of each of the Borrower and the Servicer, substantially in the form of Exhibit E (Form of Borrowing Request) to this Agreement, requesting an Advance and including the information required under Section 2.2 (Funding Procedures) below.
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"Borrowing Request Date" means each date on which the Borrower delivers a Borrowing Request pursuant to Section 2.2 (Funding Procedures) below.
"Breakage Costs" has the meaning specified in Section 2.13 (Breakage Costs) below.
"Business Day" means any day other than (a) a Saturday or Sunday and (b) a day on which the New York Stock Exchange, the Federal Reserve Bank of New York or commercial banking institutions in New York, New York are authorized or obligated by law or executive order to be closed.
"Cause" means, with respect to any Independent Manager, that (a) such Independent Manager has engaged in or has been charged with, or has been convicted of, fraud or other acts constituting a crime under any law applicable to the Independent Manager (in such capacity), or (b) such Independent Manager is unable to perform his or her duties as the Independent Manager due to death, disability or incapacity, or (c) such Independent Manager ceases to be employed by the service provider which is his or her employer on the date such Independent Manager was first engaged by the Borrower, or (d) such Independent Manager no longer meets the definition of "Independent Manager."
"Change in Law" means (a) the adoption of any law, rule or regulation after the date of this Agreement, (b) any change in any law, rule or regulation or in the interpretation or application thereof by any Governmental Authority after the date of this Agreement or (c) any Governmental Authority issues or changes any request, guideline or directive (whether or not having the force of law) after the date of this Agreement; provided, however, that, notwithstanding anything in the foregoing part of this definition to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (ii) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a "Change in Law," regardless of the date enacted, adopted or issued.
"Change of Control" means the occurrence of any of the following, at any time:
- the failure of DPA 1 to directly own (beneficially and of record), and directly Control, 100.00% of the outstanding Equity Interests of the Borrower; or
- the failure of MCC to, directly or indirectly, own and Control at least 80.00% of the outstanding Equity Interests of DPA 1; or
- with respect to MCC:
- the sale, lease or transfer, in one or a series of related transactions, of all or substantially all of the assets of MCC and its Subsidiaries, taken as a whole, to any Person or Persons, other than a Permitted Holder; or
- MCC becomes aware that any "person" or "group" (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act), other than a Permitted Holder, becomes the "beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that a person or group shall be deemed to have "beneficial ownership" of all
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- securities that such person or group has the right to acquire, whether such right is exercisable immediately or only after the passage of time (such right, an "option right")), directly or indirectly, of 50.00% or more of the Voting Equity Interests of MCC on a fully-diluted basis (and taking into account all such securities that such person or group has the right to acquire pursuant to any option right); or
- MCC ceases to be managed by MAM pursuant to the Management Services Agreement.
"Claims" has the meaning specified in Section 14.14(a) below.
"Closing Costs" has the meaning specified in Section 14.15(a) (Closing) below.
"Closing Date" means December 30, 2025.
"Code" means the Internal Revenue Code of 1986, as amended from time to time.
"Collateral Receipt" means a Collateral Receipt delivered by the Custodian pursuant to the terms of the Custodial Agreement.
"Collection Account" means the segregated account identified in the Collection Account Control Agreement, established and maintained pursuant to Section 10.1(a) (Collection Account) below of this Agreement, in the name of the Borrower with the Collection Account Bank, subject to the Lien of the Agent, for the benefit of the Secured Parties, or such other account, accounts, subaccount or subaccounts as may be from time to time established at the Collection Account Bank (or, if the Collection Account Bank ceases to be a Eligible Account Bank, an Eligible Account Bank approved in writing by the Agent) and designated by the Agent as the "Collection Account" by written notice to the Borrower.
"Collection Account Bank" means U.S. Bank (or another depository institution acceptable to the Agent, acting in its sole and absolute discretion), as "securities intermediary" under the Collection Account Control Agreement.
"Collection Account Control Agreement" means the Securities Account Control Agreement, dated as of December 30, 2025, among the Borrower, as pledgor, the Agent, as secured party, and the Collection Account Bank, as securities intermediary, in substantially the form attached as Exhibit H (Form of Collection Account Control Agreement), with respect to the Collection Account, as the same may be amended, restated, supplemented or otherwise modified from time to time.
"Collections" means, collectively:
- all collections, payments and recoveries on or in respect of the Receivables, the Medallion Collateral and the other Pledged Collateral (including without limitation insurance proceeds and proceeds of the disposition of the Receivables or of assets securing or otherwise subject to the Receivables);
- all MRP+ Program Recoveries with respect to any Receivables; and
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- all proceeds of the foregoing, including, without limitation, any payments from the Seller in respect of any obligation to repurchase any Receivables from the Borrower in accordance with the terms of the Purchase Agreement.
"Commercial Paper Issuer" means any Person whose principal business consists of issuing commercial paper or other securities (directly or indirectly) to fund advances or the acquisition, financing and maintenance of receivables, accounts, instruments, chattel paper, general intangibles and other similar assets.
"Commercial Paper Notes" means commercial paper notes issued directly or indirectly by a Conduit Lender.
"Commitment Fee" has the meaning specified in the Facility Fee Letter.
"Competitor" means, as of any date of determination, any Person that (a) is not an Affiliate of any MCC Entity, (b) is engaged in, or that has an Affiliate engaged in, the business of (i) financing loans primarily secured by Medallions or (ii) leasing, maintaining, financing, insuring or otherwise operating taxicabs, and (c) taken together with its Affiliates, derives all, or a substantial portion, of its revenue from the businesses described in the foregoing clause (b) of this definition.
"Compliance Certificate" has the meaning specified in Section 7.4(a) (Compliance Certificate) below.
"Conduit Lender" means (a) Autobahn (prior to Autobahn's cessation, if any, in its sole and absolute discretion, as a Conduit Lender and a Lender pursuant to Section 14.7(d) (Assignments Between Conduit Lenders and Liquidity Providers) below) and (b) any other Commercial Paper Issuer that agrees, pursuant to the pertinent Assignment and Acceptance, to make Advances pursuant to Article 2 (The Facility) below as a Conduit Lender.
"Confidential Information" has the meaning specified in Section 14.16 (Confidentiality) below.
"Consolidated Net Income" means, for any period, and with respect to any Person (for purposes of this definition, the "Relevant Person"), the consolidated net income (or loss) of the Relevant Person and its Subsidiaries, on a consolidated basis (excluding any reductions on account of non-controlling interests).
"Consolidated Net Worth" means, as of any date of determination, an amount in USD equal to:
- the aggregate assets of MCC and its consolidated Subsidiaries
minus
- the aggregate liabilities and indebtedness of MCC and its consolidated Subsidiaries
in each case as the same would appear on a consolidated balance sheet of MCC and its consolidated Subsidiaries prepared as of such date in accordance with GAAP, with appropriate adjustments being made to reflect fairly the effect of all off-balance sheet assets and liabilities not required to be reflected on the consolidated balance sheet of MCC and its consolidated Subsidiaries, in accordance with GAAP; provided, however, that, the aggregate liabilities and indebtedness referred to in clause (b) above shall not include
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contingent liabilities against which adequate reserves are maintained on the books of the applicable Person.
"Contractual Obligation" means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.
"Control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. "Controlling" and "Controlled" have meanings correlative thereto.
"Corporate Services Agreement" means, the Corporate Services Agreement, dated as of December 30, 2025, between the Borrower and Citadel SPV LLC, a Delaware limited liability company.
"CP Rate" means, on any day, and with respect to Autobahn or any other Conduit Lender, the per annum rate equivalent to the weighted average of the per annum rates paid or payable by such Conduit Lender from time to time as interest or otherwise (by means of interest rate hedges or otherwise) in respect of the Commercial Paper Notes issued by such Conduit Lender that are allocated, in whole or in part, by such Conduit Lender to fund or maintain the Advances during the related Interest Accrual Period, which rates shall reflect and give effect to the commissions of placement agents and dealers in respect of such Commercial Paper Notes, to the extent such commissions are allocated, in whole or in part, to such Commercial Paper Notes by such Conduit Lender; provided, however, that, if any component of such rate is a discount rate, in calculating the "CP Rate" the Conduit Lender shall, for such component, use the rate resulting from converting such discount rate to an interest bearing equivalent rate per annum.
"Credit and Collection Policy" means the policies and procedures attached as Annex I (Credit and Collection Policy) to this Agreement, as such policies and procedures may be amended or otherwise modified from time to time with the prior written consent of the Agent (such consent not to be unreasonably withheld, delayed or conditioned, following the delivery to the Agent of a final and complete copy of any such modifications and a reasonable opportunity to review).
"Custodial Agreement" means the Custodial Agreement, dated as of December 30, 2025, among the Custodian, the Borrower, the Servicer and the Agent.
"Custodian" means U.S. Bank, as custodian under the Custodial Agreement.
"Default" means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both, would be an Event of Default.
"Default Funding Rate" means, for any day, a per annum rate equal to:
- the Base Rate
plus
- 1.25%.
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"Defaulted Receivable" means any Delinquent Receivable for which:
- any scheduled payment is past due more than 90 days from the original due date of such payment; and
- the related Missed Loan Payment or repayment in full of all outstanding principal due on such Receivable pursuant to the MRP+ Program Documents has not occurred within 60 days of the requested payment date for such Missed Loan Payment.
"Deficiency" has the meaning specified in the Custodial Agreement.
"Delinquency Ratio" means the ratio computed as of the end of the most recently ended Remittance Period, equal to:
- the outstanding balance of all Eligible Receivables that were Delinquent Receivables on such date
divided by
- the Eligible Receivables Balance on such day.
"Delinquent Receivable" means any Eligible Receivable:
- for which any scheduled payment thereunder is past due more than 30 days from the original due date of such payment; and
- which is not a Defaulted Receivable.
For the avoidance of doubt, and subject to the final paragraph of the definition of "Eligible Receivable," a Receivable on account of which the Borrower shall have received, at any time, a Missed Loan Payment (or any other reimbursement or recoupment pursuant to the MRP+ Program Documents) shall remain a Delinquent Receivable.
"Deposit Accounts" means any "deposit accounts," as such term is defined in the UCC, and includes any checking account, savings account, or certificate of deposit.
"Determination Date" means, with respect to any Settlement Date or Reporting Date, the last day of the Remittance Period ended immediately prior to such Settlement Date or Reporting Date.
"DPA 1" has the meaning specified in paragraph (b) of the preamble to this Agreement.
"DPA 1 LLC Agreement" means the Fourth Amended and Restated Limited Liability Company Agreement, dated as of April 7, 2025, of DPA 1, as the same may be amended, restated, supplemented or otherwise modified from time to time.
"DZ Bank" has the meaning specified in paragraph (d) of the preamble to this Agreement.
"Early Amortization Event" has the meaning specified in Section 12.1 (Early Amortization Events) below.
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"EEA Financial Institution" has the meaning specified in Section 14.11(b) (Certain Definitions Relating to EU Bail-In) below.
"EEA Member Country" has the meaning specified in Section 14.11(b) (Certain Definitions Relating to EU Bail-In) below.
"Eligible Account Bank" means a United States federally insured depository institution (a) with a long-term unsecured debt rating or a long-term issuer rating of at least "A" from S&P or Fitch or at least "A2" from Moody's or (b) otherwise acceptable to the Agent (it being understood that, for purposes of the foregoing clause (a), if the applicable institution is rated by more than one of the Rating Agencies, the lowest of the ratings so assigned shall be used).
"Eligible Hedge Provider" means either:
- the Agent; or
- another Hedge Provider that:
- has (A) a long-term unsecured, non-credit enhanced debt rating (for purposes of this definition, a "Debt Rating") from at least two out of the following three rating agencies: Moody's, Fitch and S&P or (B) its obligations under the relevant Hedge Agreement guaranteed by another Person that has such Debt Ratings pursuant to a guaranty in form and substance satisfactory to the Agent;
- such Debt Ratings are not less than "A" by Fitch (if rated by Fitch), "A" by S&P (if rated by S&P) and "A2" by Moody's (if rated by Moody's); and
- has been approved by the Agent as an Eligible Hedge Provider hereunder (which approval may be granted or withheld by the Agent in its sole and absolute discretion); provided, however, that, a replacement Hedge Provider, as successor to DZ Bank, shall not be subject to such approval by the Agent if the related Hedging Transactions shall have been terminated solely as a result of a Hedge Provider Event.
"Eligible Investments" means:
- direct obligations of, and obligations fully guaranteed by, the United States or any agency or instrumentality thereof the obligations of which are backed by the full faith and credit of the United States;
- demand deposits, time deposits, bankers' acceptances or certificates of deposit, in each case denominated in USD, of any depository institution or trust company (i) that is incorporated under the laws of the United States or any State or any United States branch of a foreign bank, (ii) that is subject to supervision and examination by federal or State banking or depository institution authorities, (iii) having capital, surplus and undivided profits aggregating at least USD 100,000,000, and (iv) at the time of such investment (or contractual commitment to invest), whose commercial paper or other short-term unsecured debt obligations (other than such obligations the rating of which is based on the credit of a Person other than such depository institution or trust company) are currently rated by both (A) S&P,
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- which rating shall not be lower than "A-1," and (B) Moody's, which rating shall not be lower than "P-1";
- USD-denominated repurchase obligations, in each case having a term of not more than ten days, with respect to any security that is a direct obligation of, or fully guaranteed by, the United States or any agency or instrumentality thereof the obligations of which are backed by the full faith and credit of the United States, entered into with a depository institution or trust company (acting as principal) that satisfies the criteria set forth in paragraph (b) of this definition;
- USD-denominated short-term corporate securities (bearing interest coupon payments or purchased at a discount) issued by any corporation incorporated under the laws of the United States or any State; provided, however, that, (i) such investment (A) shall not have an 'r' highlighter affixed to its rating by S&P or Moody's, and (B) shall, by its terms, provide for a predetermined, fixed dollar amount of principal due at maturity that cannot vary or change, and (ii) at the time of the investment, the short-term unsecured debt obligations of such corporation (other than such obligations the rating of which is based on the credit of a Person other than such corporation) are currently rated by both (A) S&P, which rating shall not be lower than "A‑1," and (B) Moody's, which rating shall not be lower than "P‑1";
- USD-denominated commercial paper that is currently rated by both (i) S&P, which rating shall not be lower than " A‑1," and (ii) Moody's, which rating shall not be lower than " P‑1"; provided, however, that, such investment (A) shall not have an 'r' highlighter affixed to its rating by S&P or Moody's, and (B) shall, by its terms, provide for a predetermined, fixed dollar amount of principal due at maturity that cannot vary or change; and
- investments in money market funds which are (i) registered under the Investment Company Act of 1940, as amended, (ii) currently rated by both (A) S&P, which rating shall not be lower than "AAAm," and (B) Moody's, which rating shall not be lower than "Aaa-mf";
provided, however, that, no such investment shall have a term longer than 90 days from the date that such investment is acquired by the Borrower.
"Eligible Receivable" means, at any time, a Receivable that satisfies each of the following criteria:
- Such Receivable represents and constitutes a Medallion Loan that has been restructured pursuant to the MRP+ Program and that is covered by the Supplemental Loan Deficiency Guaranty established pursuant to the MRP+ Program and a duly-executed Loan Enhancement Agreement (a full, true and complete copy of which, including any amendments or modifications, and any exhibits, schedules or other attachments thereto, is attached as Exhibit L (Loan Enhancement Agreement) to this Agreement);
- Such Medallion Loan is a "Qualified Loan" under the MRP+ Program Documents;
- Such Medallion Loan has been restructured (and, at all times, serviced) in accordance with the Credit and Collection Policy, the MRP+ Program and Applicable Law;
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- Such Medallion Loan was originated or restructured without any fraud or material misrepresentation on the part of the Seller or the related Obligor;
- Such Medallion Loan and all Medallion Collateral has been sold or contributed by the Seller to the Borrower, pursuant to and in accordance with the Purchase Agreement, without any fraud or material misrepresentation on the part of the Seller or the related Obligor;
- Such Medallion Loan constitutes an "instrument," "chattel paper," a "general intangible" or a "payment intangible" (each as defined in the UCC of the jurisdiction whose laws govern the perfection of a security interest therein), and there is no physical original of such Medallion Loan that has not been delivered to the Custodian;
- Such Medallion Loan is represented by a Medallion Loan Agreement in substantially the form attached as Exhibit K (Form of Medallion Loan Agreement) to this Agreement, or in such other form or forms as may have been approved in writing by the Agent (in its sole and absolute discretion) after the Closing Date, it being understood, however, that (unless otherwise expressly agreed in writing by the Parties in accordance with Section 14.3(b) (Amendments and Waivers) below) no such approval shall be deemed to modify or waive any other paragraph of this definition;
- Such Medallion Loan (i) was restructured in conformity with the MRP+ Program Documents, (ii) complies in all material respects with all Applicable Law and (iii) the Seller and the Borrower each maintains and has maintained (and any prior holder of any interest in such Medallion Loan has, during any applicable period, maintained) in good standing any licenses (as applicable) required to originate or hold such Medallion Loan;
- (i) The Agent shall have, upon the transfer (or purported transfer) thereof to the Borrower pursuant to the Purchase Agreement, a first-priority perfected security interest in such Medallion Loan and all Medallion Collateral related thereto, free and clear of all Liens (other than Permitted Liens), (ii) the Borrower has a first-priority perfected ownership interest in such Medallion Loan, and a first-priority perfected security interest in all related Medallion Collateral, in each case free and clear of all Liens (other than Permitted Liens), and (iii) all filings (including, without limitation, UCC filings) necessary in any jurisdiction to give the Agent a first priority perfected Lien (subject to Permitted Liens) in the Medallion Loan and the other Medallion Collateral related thereto have been made;
- Such Medallion Loan is fully funded and no additional advances are required to be made by the lender thereunder;
- The Custodian has confirmed receipt and completeness of the related Receivable File (along with the other schedules, data or information required to be delivered pursuant to the terms of the Custodial Agreement), and issued a related Collateral Receipt, prior to the funding of any Advances with respect to such Receivable pursuant to Section 2.1 (Advances) below;
- (i) Such Medallion Loan is in full force and effect and constitutes the legal, valid and binding obligation of the Obligor, enforceable against such Obligor in accordance with its terms and (ii) the Loan Enhancement Agreement and each other agreement and document with respect
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- to such Medallion Loan is in full force and effect and constitutes the legal, valid and binding agreement and obligation of each party thereto, enforceable against such party in accordance with its terms;
- Such Medallion Loan is not subject to any dispute, offset, counterclaim or defense whatsoever (except for any statutory right of rescission);
- Such Medallion Loan has terms for acceleration of payments and repossession and/or foreclosure of the related medallion in the event of an Obligor default (subject to any relevant grace periods or cure periods pursuant to the MRP+ Program);
- The related Obligor:
- has no more than six Medallions and is a "Qualified Medallion Owner" under the MRP+ Program Documents;
- is not subject to a bankruptcy, insolvency or similar proceeding, other than as permitted by the Credit and Collection Policy; and
- is not an Affiliate or employee of MCC or its Affiliates;
- The related Obligor is not the United States of America, any State or any other Governmental Authority;
- Such Medallion Loan is denominated and payable solely in USD;
- The Obligor has agreed to remit payments directly to the Lockbox Account or has signed an ACH authorization agreement, in accordance with Section 11.8 (Deposits to Accounts) below;
- Such Medallion Loan has a maximum term of 25 years;
- (i) Interest accrues on such Medallion Loan relating to such Receivable at an interest rate of not less than 7.30% per annum and (ii) such interest is payable by the Obligor thereunder not less frequently than monthly;
- Such Medallion Loan provides for repayment of principal in equal monthly installments;
- Such Medallion Loan is not a Defaulted Receivable;
- Such Medallion Loan has not had any of its terms, conditions or provisions amended, modified, or waived other than in compliance with the Credit and Collection Policy;
- Such Medallion Loan has not been intentionally selected by the Seller in a manner that is adverse to the Secured Parties; and
- The collateral for such Medallion Loan transferred to the Borrower includes a 100.00% interest in the related Supplemental Loan Deficiency Guaranty, which is not subject to a lien of any other creditor, and the related Medallion, in which the Borrower has a first-priority lien and security interest.
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For the avoidance of doubt, a Receivable shall not fail to constitute an Eligible Receivable solely as a result of such Receivable being a Delinquent Receivable, provided that such Receivable remains in the MRP+ Program and covered by the Supplemental Loan Deficiency Guaranty, and Scheduled Payments are made from the MEP Reserve Fund, it being understood, however, that, once Receivable becomes a Defaulted Receivable it shall no longer constitute an Eligible Receivable.
"Eligible Receivables Balance" means, as of any date of determination, the amount determined by summing the Outstanding Balances of each of the Eligible Receivables.
"Equity Interests" means, with respect to any Person, the capital stock, partnership or limited liability company interest, or other equity securities or equity ownership interests of such Person.
"Equity Pledge Acknowledgment" means the Acknowledgment of Pledge, dated as of December 30, 2025, executed by the Borrower and delivered to the Agent, pursuant to the Equity Pledge Agreement.
"Equity Pledge Agreement" means the Pledge and Security Agreement, dated as of December 30, 2025, between DPA 1, as pledgor, and the Agent, as secured party, with respect to the pledge of the Equity Interests in the Borrower.
"ERISA" means the Employee Retirement Income Security Act of 1974, as amended, and the regulations promulgated thereunder.
"ERISA Affiliate" means any corporation or trade or business that is a member of any group of organizations (a) described in Section 414(b) or (c) of the Code of which any MCC Entity is a member and (b) solely for purposes of potential liability under Section 302(c)(11) of ERISA and Section 412(c)(11) of the Code and the lien created under Section 302(f) of ERISA and Section 412(n) of the Code, described in Section 414(m) or (o) of the Code of which any MCC Entity is a member.
"ERISA Event" means (a) any "reportable event," as defined in Section 4043 of ERISA or the regulations issued thereunder, with respect to a Plan (other than an event for which the 30-day notice period is waived), (b) the existence with respect to any Plan of an "accumulated funding deficiency" (as defined in Section 412 of the Code or Section 302 of ERISA), whether or not waived, (c) the filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan, (d) the incurrence by the Borrower or any ERISA Affiliate of any liability under Title IV of ERISA with respect to the termination of any Plan or the withdrawal or partial withdrawal of the Borrower or any ERISA Affiliate from any Plan or Multiemployer Plan, (e) the receipt by the Borrower or any ERISA Affiliate from the Pension Benefit Guaranty Corporation or a plan administrator of any notice relating to the intention to terminate any Plan or Plans or to appoint a trustee to administer any Plan, (f) the adoption of any amendment to a Plan that would require the provision of security pursuant to Section 401(a)(29) of the Code or Section 307 of ERISA, (g) the receipt by the Borrower or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice, concerning the imposition of withdrawal liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA, or (h) the occurrence of a non-exempt "prohibited transaction" with respect to which the Borrower or any ERISA Affiliate a "disqualified person" (within the meaning of Section 4975 of the Code) or with respect to which the Borrower or any ERISA Affiliate could otherwise be liable.
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"EU Bail-In Legislation Schedule" has the meaning specified in Section 14.11(b) (Certain Definitions Relating to EU Bail-In) below.
"EU Risk Retention Regulation" has the meaning specified in Section 8.17(b) below.
"Event of Default" has the meaning specified in Section 13.1 (Events of Default) below.
"Exception Report" has the meaning specified in the Custodial Agreement.
"Excess Spread" means, with respect to the most recently ended Remittance Period, an amount (not less than zero), expressed as a percentage, equal to the quotient of:
- the difference of:
- the product of:
- 7.30%
multiplied by
- the Eligible Receivables Balance as of the end of such Remittance Period
minus
- the product of:
- the Finance Rate
multiplied by
- the Facility Balance as of the end of such Remittance Period
divided by
- the Eligible Receivables Balance as of the end of such Remittance Period.
"Excess Spread Minimum" means 1.00% per annum.
"Exchange Act" means the United States Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
"Excluded Taxes" means any of the following Taxes imposed on or with respect to the Agent or any Lender, or required to be withheld or deducted from a payment to the Agent or any Lender:
- Taxes imposed on (or measured by) net income, franchise Taxes and branch profits Taxes, in each case, (i) imposed as a result of the Agent or such Lender being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or a political subdivision thereof) or (ii) that are Other Connection Taxes;
- in the case of a Lender (other than an assignee pursuant to a request by the Borrower under Section 2.15(a) below), any U.S. federal withholding Tax that is imposed on amounts payable to or for the account of such Lender with respect to an applicable Advance at the time such Lender becomes a party to this Agreement (or designates a new lending office), except to
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- the extent that such Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office (or assignment), to receive additional amounts from the Borrower with respect to such withholding Tax pursuant to Section 2.14 (Taxes) below;
- Taxes attributable to the Agent's or such Lender's failure to comply with Section 2.14(f) below; and
- any United States federal withholding Taxes imposed under FATCA.
"Facility" has the meaning specified in paragraph 3.A under Preliminary Statements above.
"Facility Balance" means, at any time, the aggregate outstanding principal amount of the Advances.
"Facility Fee Letter" means the Facility Fee Letter, dated as of December 30, 2025, among the Borrower, the Servicer and the Agent, as the same may be amended, restated, supplemented or otherwise modified from time to time.
"Facility Fees" means, collectively:
- the Commitment Fee;
- the Structuring Fee;
- the Lenders' Fee;
- the Non-Use Fee;
- the Make-Whole Fee; and
- the Termination Fee.
"Facility Note" means a Secured Revolving Promissory Note in substantially the form of Exhibit A (Form of Facility Note) to this Agreement.
"Facility Participant" has the meaning specified in Section 14.18(a) (Generally) below.
"Facility Participant Register" has the meaning specified in Section 14.18(d) (Facility Participant Register) below.
"Facility Rate" means, as to any portion of the Advances as to which:
- Autobahn or another Conduit Lender is the Lender:
- to the extent that Autobahn, or such other Conduit Lender, is (in its sole and absolute discretion) funding such portion of the Advances through the issuance of Commercial Paper Notes, the CP Rate; or
- to the extent that Autobahn, or such other Conduit Lender, is (in its sole and absolute discretion) funding such portion of the Advances through draws under its liquidity
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- facility (and not through the issuance of Commercial Paper Notes), the Alternative Funding Rate; or
- DZ Bank is the Lender, the Alternative Funding Rate;
provided, however, that, the Facility Rate shall not exceed, at any time, the Maximum Lawful Rate.
"Facility Termination Date" means the first day (if any) on which an Early Amortization Event shall have occurred.
"FATCA" means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any law, regulations, or other official guidance enacted relating to an applicable intergovernmental agreement between a non-U.S. jurisdiction and the United States with respect thereto, and any agreements entered into pursuant to Section 1471(b)(1) of the Code.
"Field Point" means Field Point Servicing, LLC.
"Final Settlement Date" means the first Settlement Date following the Revolving Period on which (a) the Facility Balance shall have been reduced to zero and (b) all accrued and unpaid interest under the Advances, all Facility Fees and all other Secured Obligations (other than unasserted contingent obligations) shall have been indefeasibly paid in full.
"Finance Rate" means, with respect to any Remittance Period, a per annum rate equal to the sum of:
- the Hedge Average Rate
plus
- the Servicer Fee Rate
plus
- the Lender Margin
plus
- fees to the Account Banks and the Custodian (in each case, with respect to this paragraph (d), expressed as a percentage of the Eligible Receivables Balance) in the relevant Remittance Period.
"Financial Representations" means the representations and warranties set forth in Section 5.1 (Financial Condition) below.
"Financial Statements" has the meaning specified in Section 7.2 (Financial Statements) below.
"Fiscal Quarter" means a fiscal quarter of the Borrower, which initially shall be the applicable calendar quarter.
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"Fiscal Year" means a fiscal year of the Borrower, which initially shall be the applicable calendar year.
"Fitch" means Fitch, Inc., or a successor thereto that is a nationally-recognized statistical rating organization.
"GAAP" means generally accepted accounting principles in the United States, as in effect from time to time; provided, however, that, any obligations of a Person under a lease (whether existing now or entered into in the future) that is not (or would not be) a capital lease obligation under GAAP as in effect as of the date of this Agreement shall not be treated as a capital lease obligation solely as a result of the adoption of changes in GAAP.
"Governmental Authority" means the government of the United States or any other nation, or of any political subdivision thereof, whether State or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).
"Hedge Agreement" means the ISDA Master Agreement, Schedule thereto, Confirmations thereunder and other agreements and documents entered into by the Borrower and the Hedge Provider, in connection with Hedging Transactions pursuant to Section 8.1 (Hedge Requirement) below, in form and substance satisfactory to the Agent.
"Hedge Average Rate" means an amount, expressed as a percentage, equal to the weighted average Hedge Rate of all Hedging Transactions then in effect (weighed based upon the respective notional amounts of each such Hedging Transaction).
"Hedge Notional Amount Requirement" means, for any date, a scheduled amortizing notional amount for such date and each Settlement Date thereafter, such schedule (i) not to exceed 110.00% of the estimated Facility Balance and (ii) not to be less than 80.00% of the estimated Facility Balance, in each case, as of such date and each such subsequent Settlement Date, as determined by the Agent in its sole discretion after consultation with the Servicer.
"Hedge Provider" means DZ Bank (or any other or successor Hedge Provider approved in writing by the Agent, in its sole and absolute discretion), as the dealer party to the Hedge Agreement; provided, however, that, the appointment of a Hedge Provider, as successor to DZ Bank, shall not be subject to the approval of the Agent, pursuant to the foregoing parenthetical of this definition, if the Hedging Transactions shall have been terminated, solely as a result of a Hedge Provider Event.
"Hedge Provider Event" means an "Event of Default" or a "Termination Event" under a Hedge Agreement, with respect to which the Hedge Provider was the "Defaulting Party" or the sole "Affected Party," as applicable.
"Hedge Rate" means, with respect to any Hedging Transaction, the threshold fixed payer rate above which a net payment will be made to the Borrower by the Hedge Provider under such Hedging Transaction.
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"Hedging Transaction" means each interest rate swap or cap "Transaction" entered into, in accordance with Section 8.1 (Hedge Requirement) below, pursuant to a Confirmation, between the Borrower and the Hedge Provider, under the Hedge Agreement, which provides for a floating rate based upon Daily SOFR (as defined in a manner reasonably acceptable to the Agent) or another index acceptable to the Agent (in its sole discretion).
"Indebtedness" means, for any Person, (a) obligations created, issued or incurred by such Person for borrowed money (whether by loan, the issuance and sale of debt securities or the sale of property to another Person subject to an understanding or agreement, contingent or otherwise, to repurchase such property from such Person), (b) obligations of such Person to pay the deferred purchase or acquisition price of property or services, other than trade or professional services accounts payable (other than for borrowed money) arising, and accrued expenses incurred, in the ordinary course of business so long as such trade accounts payable are payable within 90 days of the date the respective goods are delivered or the respective services are rendered, or, with respect to professional services accounts payable, are payable within 365 days of the date the respective services are rendered, (c) indebtedness of others secured by a lien on the property of such Person, whether or not the respective indebtedness so secured has been assumed by such Person, (d) any obligation incurred by such Person in connection with banker's acceptances and the maximum aggregate amount from time to time available for drawing under all outstanding letters of credit or similar instruments issued for the account of such Person together, without duplication, with the amount of all honored but unreimbursed drawings thereunder, (e) capital lease obligations of such Person, (f) obligations of such Person under repurchase agreements, sale-and-buy-back agreements or like arrangements, (g) indebtedness of others guaranteed by such Person, (h) indebtedness of general partnerships of which such Person is a general partner or of which such Person is secondarily on contingently liable (other than by endorsement of instruments in the course of collection), whether by reason of any agreement to acquire such indebtedness, to supply or advance sums or otherwise and (i) all net liabilities or obligations under any interest rate swap, interest rate cap, interest rate floor, interest rate collar or other hedging instrument or agreement; provided, however, that, Indebtedness shall not include contingent liabilities against which adequate reserves are maintained on the books of the applicable Person.
"Indemnified Person" has the meaning specified in Section 6.3 (Borrower Indemnity) below.
"Indemnified Taxes" means (a) Taxes other than Excluded Taxes, imposed on or with respect to any payment made by or on account of the Borrower under any Transaction Document, and (b) to the extent not otherwise described in clause (a) of this definition, Other Taxes.
"Independent Accountants" means Deloitte & Touche LLP, or any other firm of nationally-recognized independent public accountants consented to by the Agent.
"Independent Manager" of any corporation or limited liability company means an individual who is provided by Citadel SPV LLC, CT Corporation, Corporation Service Company, National Registered Agents, Inc., Wilmington Trust Company, Stewart Management Company or TMF Group, or, if none of those companies is then providing professional independent directors, another nationally-recognized company reasonably approved by the Agent, in each case that is not an Affiliate of such corporation or limited liability company and that provides professional independent directors and other corporate services in the ordinary course of its business, and which individual is duly appointed as a member of the board of
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directors of such corporation, or as an independent manager, member of the board of managers, or special member of such limited liability company, as the case may be, and is not, and has never been, and will not while serving as Independent Manager be, any of the following:
- a member (other than an independent, non-economic "springing" member), partner, equity holder, manager, director, officer or employee of such corporation or limited liability company or any of its equity holders or Affiliates (other than as an independent, non-economic "springing" member of an Affiliate of such corporation or limited liability company that is not in the direct chain of ownership of such corporation or limited liability company and that is required by a creditor to be a single purpose bankruptcy remote entity, provided that such independent director or manager is employed by a company that routinely provides professional independent directors or managers);
- a creditor, supplier or service provider (including provider of professional services) to such corporation or limited liability company or any of its equity holders or Affiliates (other than a nationally recognized company that routinely provides professional independent managers or directors and other similar services to such corporation or limited liability company or any of its equity holders or Affiliates in the ordinary course of business);
- a family member of any such member, partner, equity holder, manager, director, officer, employee, creditor, supplier or service provider; or
- a Person that controls (whether directly, indirectly or otherwise) any Person of the type identified in clause (a) or (b) of this definition.
A natural person who otherwise satisfies the foregoing definition, other than clause (a) thereof, by reason of being the independent director, independent manager or special member of a Special-Purpose Entity Affiliated with the corporation or limited liability company in question, shall not be disqualified from serving as an independent director, independent manager or special member of such corporation or limited liability company, provided that the fees that such natural person earns from serving an independent director, independent manager or special member of Affiliates of such corporation or limited liability company in any given year constitute, in the aggregate, less than 5.00% of such natural person's annual income for that year. The same natural persons may not serve as Independent Managers (or equivalent) of a corporation or limited liability company and, at the same time, serve as Independent Managers (or equivalent) of an equity holder or member of such corporation or limited liability company.
"Insider Trading Laws" has the meaning specified in clause (i) of Section 14.16(d) (Obligations Regarding MNPI) below.
"Insolvency Event" means with respect to any Person, (a) the filing of a decree or order for relief by a court having jurisdiction in the premises in respect of such Person or any substantial part of its property in an involuntary case under any applicable Insolvency Law now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official for such Person or for any substantial part of its property, or ordering the winding-up or liquidation of such Person's affairs, and such decree or order shall remain unstayed and in effect for a period of 60 consecutive calendar days, (b) the commencement by such Person of a voluntary case under any
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Insolvency Law now or hereafter in effect, or the consent by such Person to the entry of an order for relief in an involuntary case under any such law, or the consent by such Person to the appointment of or taking possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official for such Person or for any substantial part of its property, or the making by such Person of any general assignment for the benefit of creditors, (c) the taking of action by such Person for the purpose of effecting any of the actions described in the foregoing clause (a) or (b), or (d) the failure by such Person generally to pay its debts as such debts become due.
"Insolvency Laws" means the Bankruptcy Code and all other applicable liquidation, conservatorship, bankruptcy, moratorium, arrangement, rearrangement, receivership, insolvency, reorganization, suspension of payments, marshaling of assets and liabilities or similar debtor relief laws from time to time in effect affecting the rights of creditors generally.
"Insolvency Proceeding" means, with respect to any Person, any bankruptcy, insolvency, arrangement, rearrangement, conservatorship, moratorium, suspension of payments, readjustment of debt, reorganization, receivership, liquidation, marshaling of assets and liabilities or similar proceeding of or relating to such Person under any Insolvency Laws.
"Interest Accrual Period" means, with respect to any Settlement Date, the immediately preceding Month; provided, however, that:
- the Interest Accrual Period with respect to the first Settlement Date shall (i) commence on (and include) the Closing Date and (ii) end on (and include) the last day of the Month in which the Closing Date occurs; and
- the last Interest Accrual Period shall end on (and exclude) the Final Settlement Date.
"Investment" means, with respect to any Person, any beneficial ownership (including stock, partnership or limited liability company interests) of or in any other Person, or any loan, advance or capital contribution to any other Person or the acquisition of any material assets of any other Person.
"Investment Company Act" means the Investment Company Act of 1940, as amended, and the rules and regulations promulgated thereunder.
"Lender Assignee" has the meaning specified in Section 14.17(a) (Assignment) below.
"Lender Margin" has the meaning specified in the Facility Fee Letter.
"Lender Percentage" means, with respect to each Lender, the percentages specified with respect to such Lender in Annex III (Lender Percentages) to this Agreement.
"Lender Register" has the meaning specified in Section 14.17(b) (Register) below.
"Lenders" has the meaning specified in paragraph (c) of the preamble to this Agreement.
"Lenders' Fee" has the meaning specified in Section 2.6(a) (Accrual of Lenders' Fee) below.
"Lien" means any mortgage, deed of trust, pledge, hypothecation, assignment for security, security interest, encumbrance, levy, lien or charge of any kind, whether voluntarily incurred or arising by
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operation of law or otherwise, against any property, any conditional sale or other title retention agreement, and any lease in the nature of a security interest.
"Liquidity Agent" means the Person designated as agent for the Liquidity Providers under a Liquidity Purchase Agreement, or any liquidity loan agreement or similar arrangement, with any Conduit Lender.
"Liquidity Provider" means any of the financial institutions from time to time party to any Liquidity Purchase Agreement or any liquidity loan agreement or similar arrangement with any Conduit Lender in connection with this Agreement.
"Liquidity Purchase Agreement" means any asset purchase or other agreements pursuant to which a Conduit Lender may from time to time assign part or all of the Advances made by such Conduit Lender to a Liquidity Provider, as the same may be amended, restated, supplemented or otherwise modified from time to time.
"Loan Identifier" has the meaning specified in Section 2.16 (Loan Identifiers) below.
"Loan Enhancement Agreement" means the Loan Enhancement Agreement entered into among the NYBDC, Pursuit SPE, the Seller (initially or as assignee) and Field Point, a copy of which is attached as Exhibit L (Loan Enhancement Agreement) to this Agreement.
"Loan Enhancement Agreement Assignment" means, with respect to any Receivables, an assignment, covering such Receivables, in substantially the form attached as Exhibit E (Form of Assignment and Assumption Agreement) to the Loan Enhancement Agreement.
"Loan Enhancement Agreement Joinder" means a joinder, in substantially the form attached as Exhibit D (Form of Joinder) to the Loan Enhancement Agreement (and otherwise in form and substance satisfactory to the Agent), specifying the Borrower as a "Lender" thereunder.
"Loan Reserve Escrow Agreement" means the Loan Reserve Escrow Agreement, dated as of November 21, 2022, among NYBDC, Pursuit SPE, Field Point and the other "servicers" party thereto, DPA 1 and the other "lenders" party thereto, and the MEP Escrow Agent.
"Lockbox Account" means the deposit account identified in the Lockbox Account Control Agreement, established and maintained pursuant to Section 10.1(b) (Lockbox Account) below, in the name of the Borrower with the Lockbox Account Bank, subject to the Lien of the Agent, for the benefit of the Secured Parties, or such other account, accounts, subaccount or subaccounts as may be from time to time established at the Lockbox Account Bank (or, if the Lockbox Account Bank ceases to be an Eligible Account Bank, an Eligible Account Bank approved in writing by the Agent) and designated by the Agent as the "Lockbox Account Bank" by written notice to the Borrower.
"Lockbox Account Bank" means Bank of America, N.A. (or another depository institution acceptable to the Agent, acting in its sole and absolute discretion), as "account bank" under the Lockbox Account Control Agreement.
"Lockbox Account Control Agreement" means the Account Control Agreement, dated as of December 30, 2025, among the Borrower, the Agent and the Lockbox Account Bank, in substantially the
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form attached as Exhibit I (Form of Lockbox Account Control Agreement), with respect to the Lockbox Account, as the same may be amended, restated, supplemented or otherwise modified from time to time.
"Make-Whole Fee" has the meaning specified in the Facility Fee Letter.
"MAM" means Marblegate Asset Management LLC, a Delaware limited liability company.
"Management Services Agreement" means the Management Services Agreement, dated as of April 7, 2025, between MCC and MAM, as the same may be amended, restated, supplemented or otherwise modified from time to time.
"Material Action" means to (a) institute proceedings to have the Borrower declared or adjudicated bankrupt or insolvent, (b) consent to the institution of bankruptcy or insolvency proceedings against the Borrower, (c) file a petition or consent to a petition seeking reorganization or relief on behalf of the Borrower under any applicable federal or state law relating to bankruptcy, (d) consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or any similar official) of the Borrower or any property of the Borrower, (e) make any assignment for the benefit of the Borrower's creditors, (f) cause the Borrower to admit in writing its inability to pay its debts generally as they become due, (g) dissolve or liquidate the Borrower or (h) take any action, or cause the Borrower to take any action, in furtherance of any of the foregoing.
"Material Adverse Change" means the occurrence of one or more events since the Closing Date that have had (individually or in the aggregate) a Material Adverse Effect.
"Material Adverse Effect" means a material adverse effect upon:
- the financial condition, business or operations of the Borrower or the Servicer; or
- the ability of the Borrower or the Servicer to perform its obligations under any transaction documents to which it is a party; or
- (i) the legality, validity or enforceability of any Transaction Document, (ii) the rights or remedies of the Agent or the Lenders with respect to the Secured Obligations or (iii) the ability of the Agent or the Lenders to enforce any such rights or remedies; or
- the existence, perfection, priority or enforceability of the Borrower's or the Agent's Lien on, or interest in, the Pledged Collateral, or any significant portion of the Receivables or Medallion Collateral included in the Pledged Collateral, or the Collections with respect thereto; or
- the enforceability or collectability of the Receivables or Medallion Collateral (taking into account the Borrower's related rights under the MRP+ Program) or any material portion of the Receivables or Medallion Collateral.
"Material Contract Violation" has the meaning specified in Section 5.9(a) (No Violation, Etc.) below.
"Maturity Date" means the earlier to occur of:
- the Scheduled Maturity Date; and
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- the date that the Secured Obligations become due and payable following the occurrence of an Event of Default pursuant to Section 13.2 (Remedies) below.
"Maximum Lawful Rate" means the highest rate of interest permissible under Applicable Law.
"MCC" has the meaning specified in paragraph 1.A under Preliminary Statements above.
"MCC Entities" means, collectively, each of, and "MCC Entity" means any of, the Borrower, DPA 1 (individually, and as Servicer and Seller) and MCC.
"Medallion" means a medallion or other license issued by the TLC which enables the holder thereof to operate a taxicab in New York City, NY or another location in which the Agent in its sole discretion deems acceptable and approves in writing.
"Medallion Collateral" means, in respect of a Medallion Loan:
- the related Medallion;
- any other interest in property securing such Medallion Loan; and
- all rights under the MRP+ Program and the MRP+ Program Documents relating to such Medallion Loan, including, without limitation, the right to receive any MRP+ Program Recoveries, Missed Loan Payments and MRP+ Payoff Amounts.
"Medallion Loan Agreement" means, with respect to any Medallion Loan, the promissory note, loan and security agreement, or other loan agreements or instruments, collectively, pursuant to which such Medallion Loan is documented and evidenced.
"Medallion Loan Default" has the meaning specified in Section 11.4(a) (Default) below.
"Medallion Loans" means loans that have been accepted into the MRP+ Program and which are secured by, inter alia, Medallions.
"MEP Escrow Agent" means U.S. Bank, as "escrow agent" under the Loan Reserve Escrow Agreement.
"MEP Reserve Balance" means the balance, from time to time, on deposit in the MEP Reserve Fund.
"MEP Reserve Fund" means the escrow account that is established and maintained, from time to time, by the MEP Escrow Agent as the "MEP Reserve Account" pursuant to Section 3 (Establishment of MEP Reserve Account) of the Loan Reserve Escrow Agreement.
"Minimum Drawdown" means USD 250,000.
"Missed Loan Payment" means, with respect to any Receivable, a "Missed Loan Payment" (as defined in Exhibit C-1 to the Loan Enhancement Agreement).
"MNPI" has the meaning specified in Section 14.16(d) (Obligations Regarding MNPI) below.
"Month" means a calendar month.
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"Monthly Settlement Report" means a monthly statement prepared by the Servicer or the Sub-Servicer, on behalf of the Borrower, and delivered to the Agent, pursuant to Section 7.1 (Monthly Settlement Reports) below, on or prior to each Reporting Date, with respect to the related Remittance Period, in substantially the form of Exhibit C (Form of Monthly Settlement Report) to this Agreement.
"Moody's" means Moody's Investors Service, Inc., or a successor thereto that is a nationally-recognized statistical rating organization.
"MRP+ Payoff Amount" means the amount of any payment of principal and non-default interest after applying disposition proceeds following the completion of a foreclosure in accordance with the MRP+ Program Documents.
"MRP+ Program" means the program established by New York City Council Resolution 1870.
"MRP+ Program Documents" means the documents implementing and establishing the administration of the MRP+ Program, including, inter alia, the Loan Reserve Escrow Agreement, the Subrogation Agreement and the Loan Enhancement Agreement.
"MRP+ Program Impairment" has the meaning specified in Section 13.1(q) (MRP+ Program Impairment) below.
"MRP+ Program Recoveries" means any amounts in respect of a reimbursement or payment of a Missed Loan Payment, MRP+ Payoff Amount or other amount to which DPA 1 or the Borrower may be entitled to receive, under, or in connection with, the MRP+ Program with respect to any Receivable.
"Multiemployer Plan" means a multiemployer plan defined as such in Section 3(37) of ERISA to which contributions have been, or were required to have been, made by the Borrower or any of their ERISA Affiliates during the five-year period ending on the date of this Agreement and which is covered by Title IV of ERISA.
"Net Eligible Receivables Balance" means, at any time, an amount equal to the difference of:
- the Eligible Receivables Balance
minus
- the Overconcentration Amount.
"Non-Use Fee" has the meaning specified in Section 2.5(a) (Accrual of Non-Use Fee) below.
"Non-Use Fee Rate" has the meaning specified in the Facility Fee Letter.
"Notice of Pledge" has the meaning specified in the Custodial Agreement.
"NYBDC" means the New York Business Development Corporation dba Pursuit BDC.
"Obligor" means, with respect to any Receivable, the Person borrowing under, and obligated to repay, such Receivable.
"OFAC" means the U.S. Department of Treasury Office of Foreign Assets Control.
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"OFAC Lists" are, collectively, the Specially Designated Nationals and Blocked Persons List maintained by OFAC pursuant to Executive Order No. 13224, 66 Fed. Reg. 49079 (Sept. 25, 2001) or any other list of terrorists or other restricted Persons maintained pursuant to any of the rules and regulations of OFAC or pursuant to any other applicable Executive Orders.
"Organizational Documents" means, with respect to any Person, its certificate of incorporation, articles of incorporation, certificate of formation, certificate of registration, trust certificate, by-laws, partnership agreement, limited liability company agreement, memorandum and articles of association, operating agreement, trust agreement, management agreement or other similar or equivalent organizational, charter or constitutional agreement or arrangement.
"Other Connection Taxes" means, with respect to the Agent or any Lender, Taxes imposed as a result of a present or former connection between the Agent or such Lender and the jurisdiction imposing such Tax (other than connections arising solely from the Agent or such Lender having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, or engaged in any other transaction pursuant to or enforced any Transaction Document or sold or assigned an interest in any Facility or Transaction Document).
"Other Related Person" means, with respect to any Person who is an individual, any other Person related by blood or marriage to such Person.
"Other Taxes" means any and all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes arising from any payment made under any Transaction Document or from the execution, delivery, performance, assignment, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Transaction Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 2.15(a) below).
"Other Transferred Property" has the meaning specified in the Purchase Agreement.
"Outstanding Balance" means, with respect to any Receivable, the outstanding principal balance thereof.
"Overconcentration Amount" means, as of any date of determination, an amount (not less than zero) equal to:
- the amount determined by summing the Outstanding Balances of each of the Eligible Receivables that are Delinquent Receivables
minus
- 38.00% of the Eligible Receivables Balance.
"Party" and "Parties" have the respective meanings specified in paragraph (d) of the preamble to this Agreement.
"PBGC" means the Pension Benefit Guaranty Corporation.
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"Performance Guarantor" means MCC, as performance guarantor under the Performance Guaranty.
"Performance Guaranty" means the Performance Guaranty, dated as of December 30, 2025, by the Performance Guarantor, in favor of the Secured Parties, as the same may be amended, restated, supplemented or otherwise modified from time to time.
"Permitted Holder" means an entity or fund managed or controlled by MAM as its investment manager or external manager.
"Permitted Liens" means (a) the Liens created by this Agreement and the other Transaction Documents, (b) Liens for Taxes, assessments or other governmental charges not delinquent as of the Closing Date or which are being contested in good faith by appropriate proceedings and for which sufficient reserves have been established in accordance with GAAP, (c) customary Liens arising under Applicable Law or contract with respect to the Collection Account and the Lockbox Account in favor of the applicable Account Bank, and (d) any and all charges due to the TLC or any other Governmental Authority as set forth in the MRP+ Program Documents in connection with the disposition of a Medallion.
"Person" means any natural person, sole proprietorship, partnership, joint venture, trust, estate, unincorporated organization, association, corporation, limited liability company, institution, or other legal entity or organization or any unit of government.
"Plan" means an employee benefit or other plan (a) established or maintained by the Borrower or any ERISA Affiliate during the six-year period ended prior to the date of this Agreement or to which the Borrower or any ERISA Affiliate thereof makes, is obligated to make or has, within the six-year period ended prior to the date of this Agreement, been required to make contributions and (b) that is covered by Title IV of ERISA, other than a Multiemployer Plan.
"Pledged Collateral" means the property described in Section 3.1 (Grant of Security Interest) below.
"Priority of Payments" means the priorities set forth in Section 10.2 (Priority of Payments) below.
"Purchase Agreement" has the meaning specified in paragraph 2 under Preliminary Statements above.
"Pursuit SPE" means Pursuit SPE LLC.
"Qualification" means, with respect to any report and opinion of independent public accountants, any "going concern" or like qualification, exception or explanatory paragraph or any qualification, exception or explanatory paragraph as to the scope of such audit.
"Qualifying Rule 17g-5 Website" means a password-protected internet website maintained by the Agent (or any Affiliate thereof) pursuant to the requirements of Rule 17g-5 and as to which access shall be permitted only to nationally recognized statistical rating organizations which shall have provided to the SEC the certification described in paragraph (e) of Rule 17g-5.
"Rating Agencies" means Fitch, Moody's and S&P.
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"Receivable File" has the meaning specified in the Custodial Agreement.
"Receivables" means each of the Medallion Loans that is purchased or otherwise acquired (or purported to be purchased or otherwise acquired) from time to time by the Borrower under the Purchase Agreement. For the avoidance of doubt, Medallion Loans repurchased by the Seller pursuant to the Purchase Agreement or otherwise sold or disposed of, in accordance with this Agreement, shall cease to be "Receivables" as of the effective date of such repurchase, sale or other disposition.
"Receivables Schedule" means, with respect to any Borrowing Date, a schedule identifying each of the Additional Receivables with respect to such Borrowing Date, which schedule shall be attached to the related Assignment and Notice of Pledge.
"Related Parties" means, with respect to any Person, such Person's Affiliates and the partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and representatives of such Person and of such Person's Affiliates.
"Relevant Obligation" means:
- any Secured Obligation; and
- any other agreement, covenant, undertaking or obligation of an MCC Entity pursuant to any provision of any Transaction Document to which it is a party.
"Remittance Period" means, with respect to each Settlement Date, the Month immediately preceding the Month during which such Settlement Date occurs.
"Replacement Servicer" has the meaning specified in Section 11.11(b) (Appointment of Replacement Servicer) below.
"Reporting Date" means, with respect to any Settlement Date, the tenth day of the Month during which such Settlement Date occurs (or, if any such date shall not be a Business Day, the immediately following Business Day).
"Representatives" has the meaning specified in Section 8.8(a) (Semi-Annual Compliance Reviews) below.
"Required Lenders" means at any time, (a) the Agent and (b) the holders of more than 66-2/3% of the sum of the aggregate unpaid principal amount of the Advances then outstanding.
"Reserve Fund Coverage Ratio" means as of the end of the most recently ended Remittance Period, a fraction, expressed as a percentage, equal to:
- the MEP Reserve Balance
divided by
- the total annualized debt service of all outstanding "Qualified Loans" under the MRP+ Program, as determined in accordance with the MRP+ Program Documents.
"Resignation Effective Date" shall have the meaning set forth therefor in Section 14.22(i) below.
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"Revolving Period" means the period (a) commencing on (and including) the Closing Date and (b) ending on (but excluding) the Revolving Period End Date.
"Revolving Period End Date" means the earlier to occur of:
- the second anniversary of the Closing Date (December 30, 2027); and
- the Facility Termination Date.
"Risk Retention Rule" and "Risk Retention Rules" have the respective meanings specified in Section 8.17(b) below.
"Risk Retention Sponsor" has the meaning specified in Section 8.17 (Risk Retention) below.
"Rule 17g-5" means Rule 17g-5 under the Exchange Act, as such rule may be amended from time to time, and subject to such clarification and interpretation as have been provided by the SEC in the adopting release (Amendments to Rules for Nationally Recognized Statistical Rating Organizations, Exchange Act Release No. 34-61050, 74 Fed. Reg. 63,832, 63,865 (Dec. 4, 2009)) and subject to such clarification and interpretation as may be provided by the SEC or its staff from time to time.
"Rule 17g-5 Representative" means any representative of the Agent's "Asset Securitization Group."
"S&P" means S&P Global Ratings, an S&P Global Inc. business, or a successor thereto that is a nationally-recognized statistical rating organization.
"Sanctioned Country" means, at any time, a country or territory which is the subject or target of any Sanctions.
"Sanctioned Person" means, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State, or by the United Nations Security Council, the European Union or any EU member state, (b) any Person operating, organized or resident in a Sanctioned Country or (c) any Person controlled by any such Person.
"Sanctions" means economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (a) the U.S. government, including those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State, or (b) the United Nations Security Council, the European Union or Her Majesty's Treasury of the United Kingdom.
"Scheduled Maturity Date" means December 30, 2030 (or, if such day is not a Business Day, the immediately following Business Day).
"Scheduled Payments" means, with respect to a Receivable, all payments from time to time due to be paid by the related Obligor pursuant to the terms of the related Medallion Loan Agreement.
"SEC" means the United States Securities and Exchange Commission.
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"Secured Obligations" means the Borrower's obligations to the Secured Parties under this Agreement and the other Transaction Documents, including any obligation to pay any amount now owing or later arising.
"Secured Parties" means, collectively, the Lenders, the Agent and the Hedge Provider, and "Secured Party" means any of the foregoing.
"Seller" has the meaning specified in paragraph 2 under Preliminary Statements above.
"Servicer" has the meaning specified in paragraph (b) of the preamble to this Agreement.
"Servicer Default" has the meaning specified in Section 11.10 (Servicer Defaults) below.
"Servicer Fee" means, with respect to each Settlement Date, an amount in USD equal to the product of:
- the Servicer Fee Rate
multiplied by
- a fraction, of which:
- the numerator is equal to the number of calendar days elapsed during the related Interest Accrual Period; and
- the denominator is 360
multiplied by
- the Eligible Receivables Balance as of the beginning of the Remittance Period with respect to such Settlement Date.
"Servicer Fee Rate" means 0.50% per annum.
"Servicer Removal Notice" has the meaning specified in Section 11.11(a) (Servicer Removal Notice) below.
"Settlement Date" means:
- the 15th calendar day of each Month, commencing in January 2026; and
- the Maturity Date
(or, if any such date shall not be a Business Day, the immediately following Business Day).
"Special-Purpose Entity" means any corporation, limited partnership or limited liability company that, at all relevant times, has complied with and shall at all times comply with provisions substantially similar to the provisions of Section 9.6 (Special-Purpose Entity) below.
"Solvent" means, as to any Person as of any date of determination, that on such date (a) the fair value of the property of such Person is greater than the total amount of liabilities, including contingent liabilities, of such Person, (b) the present fair saleable value of such Person is not less than the amount
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that will be required to pay the probable liability of such Person on its debts as they become absolute and matured, (c) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person's ability to pay such debts and liabilities as they mature and (d) such Person is not engaged in a business or a transaction, and is not about to engage in a business or a transaction, for which such Person's property would constitute an unreasonably small capital. The amount of any contingent liability at any time shall be computed as the amount that, in light of all of the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.
"Specified Documents" has the meaning specified in the Custodial Agreement.
"Specified Event of Default" has the meaning specified in Section 14.7(c) (Assignment by Lenders and Agent) below.
"State" means (a) any state or commonwealth of the United States and (b) the District of Columbia.
"Structuring Fee" has the meaning specified in the Facility Fee Letter.
"Subrogation Agreement" means the Subrogation Agreement, dated as of November 23, 2022, between DPA 1 and NYBDC, as loan enhancement administrator.
"Subsequent Advance" has the meaning specified in Section 2.1 (Advances) below.
"Sub-Servicer" means Field Point, as sub-servicer under the Sub-Servicing Agreement, and its permitted successors and assigns, in such capacity.
"Sub-Servicing Agreement" means the Sub-Servicing Agreement, dated as of December 30, 2025, among the Borrower, the Sub-Servicer, the Servicer and the Agent.
"Subsidiary" means, with respect to any Person, a corporation, partnership, limited liability company, association or joint venture or other business entity of which a majority of the Voting Equity Interests are at the time owned or the management of which is Controlled, directly, or indirectly through one or more intermediaries, by such Person.
"Supplemental Loan Deficiency Guaranty" means the credit support provided in respect of the Receivables pursuant to the MRP+ Program Documents.
"Taxes" means any and all present or future taxes, levies, imposts, duties, deductions, charges or withholdings imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
"Termination Fee" has the meaning specified in the Facility Fee Letter.
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"Threshold Amount" means, for purposes of Sections 13.1(g) (Cross-Default) and 13.1(t) (Attachments; Judgments) below, and with respect to any Person, the USD amount specified opposite such Person immediately below.
| Threshold Amount |
|---|
The Borrower USD 25,000
MCC or DPA 1 USD 1,000,000
"TML IV" means TML IV LLC, a Delaware limited liability company.
"TML IV Purchase Agreement" means the Membership Interest Purchase Agreement, dated as of December 30, 2025, among TML Holding, Inc., a Delaware corporation, as seller, MCC, as buyer, and DZ Bank.
"TLC" means the New York City Taxicab and Limousine Commission, or any successor agency, commission, regulatory body or other municipal instrumentality charged with responsibility for licensing taxicabs in New York City.
"Transaction Documents" means (a) this Agreement, (b) the Account Control Agreements, (c) the Borrower Power of Attorney, (d) the Corporate Services Agreement, (e) the Custodial Agreement, (f) the Equity Pledge Acknowledgment, (g) the Equity Pledge Agreement, (h) the Facility Fee Letter, (i) each Hedge Agreement, (j) the Performance Guaranty, (k) the Sub-Servicing Agreement, (l) the Facility Notes (if any), (m) the Purchase Agreement and (n) any other documents executed in connection with the Secured Obligations or the transactions contemplated hereby, as the same may be amended, restated, supplemented or otherwise modified from time to time.
"Transaction Information" means information provided to any nationally recognized statistical rating organization providing a rating or proposing to provide a rating to, or monitoring an existing rating of, any Conduit Lender's Commercial Paper Notes, in each case, to the extent related to providing or proposing to provide such rating or monitoring such rating including, without limitation, information in connection with the MCC Entities, their Affiliates, the Pledged Collateral or the Receivables.
"Transfer" (a) means, with respect to any Person, and any property or asset thereof, (i) any sale, conditional sale, option, transfer, assignment or participation of or in (A) such property or asset or (B) any current or future right or interest in (1) such property or asset or (2) any proceeds or products thereof, (ii) creating, incurring, assuming, granting or suffering to exist any Lien on or over (1) such property or asset or (2) any proceeds or products thereof, or (iii) entering into an agreement to do any of the foregoing, and (b) in the case of Equity Interests, includes, without limitation, (i) the grant by such Person of (A) any proxy or similar right or (B) any other conveyance or restriction on the free exercise of the voting and control rights associated with such Equity Interests, and (ii) any issuance, by the issuer thereof (whether or not at the direction of such Person), of (A) any additional Equity Interests (including any warrant) or (B) any other rights or interests having similar economic or control rights, and "Transferred" has a meaning correlative to the foregoing.
"UCC" means the Uniform Commercial Code as the same is, from time to time, in effect in the State of New York; provided, however, that, in the event that, by reason of mandatory provisions of law, any
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or all of the attachment, perfection or priority of, or remedies with respect to, the Agent's Lien on any Pledged Collateral is governed by the Uniform Commercial Code as the same is, from time to time, in effect in a jurisdiction other than the State of New York, then the term "UCC" shall mean the Uniform Commercial Code as in effect, from time to time, in such other jurisdiction solely for purposes of the provisions thereof relating to such attachment, perfection, priority or remedies and for purposes of definitions related to such provisions.
"United States" or "U.S." means the United States of America.
"Unmatured Servicer Default" means any event or condition that constitutes a Servicer Default or that, with the giving of any notice, the passage of time, or both, would be a Servicer Default.
"Unused Capacity" has the meaning specified in Section 2.5(b) (Unused Capacity) below.
"USD" means United States Dollars.
"U.S. Bank" means U.S. Bank National Association, a national banking association, and its successors in interest.
"U.S. Person" means a Person that is a "United States person" as defined in Section 7701(a)(30) of the Code.
"U.S. Risk Retention Rule" has the meaning specified in Section 8.17(a) below.
"Volcker Rule" means the common rule, Proprietary Trading and Certain Interests and Relationships with Covered Funds, published at 79 Fed. Reg. 5779 et seq., implementing Section 619 of the Dodd Frank Wall Street Reform and Consumer Protection Act, and the relevant interpretations thereof, as the same may be amended from time to time.
"Voting Equity Interests" means, with respect to any Person (other than a natural person), the Equity Interests having the ordinary voting power, under ordinary circumstances, to vote in the election of directors, managers, trustees or the equivalent of such Person.
"Wholly-Owned" means, as to a Subsidiary of a Person, a Subsidiary of such Person all of the outstanding Equity Interests of which are owned, beneficially and of record, by such Person or by one or more Wholly-Owned Subsidiaries of such Person.
"Withholding Agent" means the Borrower and the Agent.
"Write-Down and Conversion Powers" has the meaning specified in Section 14.11(b) (Certain Definitions Relating to EU Bail-In) below.
- Usage. The following rules of construction and usage are applicable to this Agreement and each of the other Transaction Documents unless a contrary intention appears:
- Accounting and UCC Terms. All accounting terms used but not defined herein shall be construed in accordance with GAAP. All terms used but not defined herein (including, without limitation, "accounts," "chattel paper," "commercial tort claims," "commodity contracts," "documents,"
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- "equipment," "fixtures," "general intangibles," "goods," "instruments," "inventory," "investment property," "letter of credit rights," "proceeds," and "supporting obligations") shall, if defined in the UCC and used in Article 8 or 9 thereof, have the meanings assigned to such terms under the UCC for the purposes of Article 8 or 9, as applicable, thereof.
- Section References, Etc. References to an "Article," "Section," "Annex," "Appendix," "Exhibit" or "Schedule," or to another subdivision or attachment, shall be deemed to refer to an article, section, annex, appendix, exhibit, schedule or other subdivision of, or attachment to, the Transaction Document in which such reference appears.
- Inclusion. (i) The word "including" means "including without limitation," and the rule of ejusdem generis shall not be applicable to limit any provision, and (ii) the word "or" is not exclusive (meaning that "X or Y" should be understood to mean "X or Y (or both X and Y)").
- Hereof, Herein and Hereunder. The word "herein," "hereof" and "hereunder," or a word of similar import, shall be construed to refer to the entirety of the Transaction Document in which such word appears, and not to any particular provision of such Transaction Document, and includes all annexes, exhibits, schedules and other attachments.
- Asset and Property. The words "asset" and "property" shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.
- Word Forms. The definitions contained in this Agreement and the other Transaction Documents shall apply equally to the singular and plural forms of the terms defined, and, whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms.
- Agreements and Statutes. Any reference to an agreement or statute shall be deemed to refer to such agreement or statute as from time to time amended, modified, supplemented or replaced, including (in the case of agreements) by waiver or consent and (in the case of statutes) by succession of comparable successor statutes and includes (in the case of agreements) references to all attachments thereto and instruments incorporated therein and (in the case of statutes) any regulations promulgated thereunder and any judicial and administrative interpretations thereof.
- Successors and Assigns. References to a Person are also to its permitted successors and assigns.
- Payments, Etc. References to deposits, transfers and payments of any amounts refer to deposits, transfers or payments of such amounts in immediately-available funds.
- Time. All references to a particular time of day shall mean New York City time in effect on the date of the action unless otherwise expressly stated in the Transaction Documents. In the computation of a period of time from a specified date to a later specified date, except as otherwise specified, the word "from" means "from and including" and the words "to" and "until" each mean "to but excluding." Time is of the essence under the Transaction Documents.
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- Headings. Headings are included for convenience only and shall not affect the interpretation of this Agreement or any other Transaction Document.
- The Facility
- Advances. Subject to, and in accordance with, the terms, conditions and other provisions of this Agreement (including, without limitation, the satisfaction, or waiver in writing by the Agent, of all conditions set forth in Article 4 (Conditions Precedent) below), and subject to receipt of a Borrowing Request from the Borrower in accordance with Section 2.2(a) (Borrowing Request) below, each Lender severally (but not jointly) agrees, during the Revolving Period, to make advances (each, an "Advance") to the Borrower. The Advance made by each Lender on any Borrowing Date shall be equal to (a) its Lender Percentage (as specified in Annex III (Lender Percentages) to this Agreement) multiplied by (b) the lesser of (i) the amount requested by the Borrower in the applicable Borrowing Request and (ii) the Availability as of such day (as determined immediately before giving effect to such Advance). Unless otherwise permitted by the Agent, the aggregate amount of the Advances requested under any Borrowing Request shall be not less than the Minimum Drawdown (USD 250,000). Each Advance made on the Closing Date shall be an "Initial Advance," and each Advance made on a subsequent Borrowing Date shall be a "Subsequent Advance." Subject to the terms and conditions set forth herein, during the Revolving Period, the Borrower may borrow, prepay or repay, and re-borrow Advances. Each Lender represents and warrants that, on the Closing Date (or, if later, the date on which such Lender acquires its interest hereunder) that it is a "qualified purchaser" within the meaning of the Investment Company Act of 1940, as amended.
- Funding Procedures.
- Borrowing Request. The Borrower and the Servicer shall execute and deliver to the Agent, by not later than the second Business Day prior to the date of the proposed Advance, a Borrowing Request (together with the Borrowing Base Certificate to be delivered therewith). If any Borrowing Request and Borrowing Base Certificate is delivered to the Agent after 12:00 p.m., New York City time, on any Business Day, such Borrowing Request and Borrowing Base Certificate shall be deemed to be received prior to 12:00 p.m., New York City time, on the next succeeding Business Day. Each Borrowing Request shall include the representations, warranties and certifications (including certifications regarding compliance with Section 8.1 (Hedge Requirement) below) by the Borrower set forth in Exhibit E (Form of Borrowing Request) to this Agreement. Each Borrowing Request shall be irrevocable. Except as the Agent (acting in its sole and absolute discretion) may otherwise agree in writing, the Borrower shall not request (or cause or permit any other Person to request) that Advances be made (and Advances shall not be made) on more than one Borrowing Date in any calendar week.
- Funding. Each Advance, subject to the fulfillment of the applicable conditions set forth in Article 4 (Conditions Precedent) below, will be made at or prior to 3:00 p.m., New York City time, on the applicable Borrowing Date, by deposit of immediately available funds to the account designated by the Servicer, on behalf of the Borrower. The Agent shall promptly notify the Borrower in the event that any Lender notifies the Agent that it will not make such funds available before such time.
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- Several Obligations, Etc. The failure of any Lender to make any Advance required to be made by it shall not relieve any other Lender of its obligations hereunder; provided, however, that, the commitments of the Lenders are several and no Lenders shall be responsible for any other Lender's failure to make Advances as required.
- Interest.
- Accrual and Payment. The Borrower shall pay interest on the unpaid principal amount of each Advance for the period from the related Borrowing Date until the date on which such Advance shall be paid in full. Interest shall accrue during each Interest Accrual Period on the Facility Balance at the applicable Facility Rate and shall be payable on each Settlement Date and on the Maturity Date. For the avoidance of doubt, the Lender Margin will be included in the calculation of Lenders' Fee and not be included in the calculation of the applicable Facility Rate.
- Interest Convention. All interest, periodic fees or other periodic amounts accrued under this Agreement or under the Facility Fee Letter shall be calculated on the basis of the actual number of days elapsed in the relevant period and a 360-day year.
- Maximum Lawful Rate. Notwithstanding any other provision of this Agreement or the other Transaction Documents, if at any time the rate of interest payable by any Person under the Transaction Documents exceeds the Maximum Lawful Rate, then, so long as the Maximum Lawful Rate would be exceeded, such rate of interest shall be equal to the Maximum Lawful Rate. If at any time thereafter the rate of interest so payable is less than the Maximum Lawful Rate, such Person shall continue to pay Interest at the Maximum Lawful Rate until such time as the total interest received from such Person is equal to the total Interest that would have been received had Applicable Law not limited the interest rate so payable. In no event shall the total interest received by a Lender under this Agreement and the other Transaction Documents exceed the amount which such Lender could lawfully have received, had the interest due been calculated from the Closing Date at the Maximum Lawful Rate.
- Default Interest. Following the occurrence, and during the continuance, of an Event of Default hereunder, if so elected by the Agent (in its sole and absolute discretion) all unpaid Secured Obligations, including principal, interest, compounded interest and past-due professional fees, shall bear interest at a rate per annum equal to the Default Funding Rate. In the event that any interest or other amount is not paid when due hereunder, such delinquent interest or other amount shall bear interest thereon at the Default Funding Rate until paid.
- Payments, Computations, Etc.
- Payments. Unless otherwise expressly provided elsewhere in this Agreement, all amounts to be paid or deposited by the Borrower under this Agreement shall be paid or deposited in accordance with the terms of this Agreement by no later than 12:00 p.m., New York City time, on the day when due in USD in immediately-available funds directly to the account or accounts specified by the Person to which such payment is due. Except as otherwise provided in Section 2.3 (Interest) above, the Borrower shall, to the extent permitted by Applicable Law, pay to the applicable Lender interest on all amounts not paid or deposited when due hereunder at the rate then in effect for the related Advance,
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- payable on demand; provided, however, that, such interest rate shall not at any time exceed the Maximum Lawful Rate.
- Business Days, Etc. Whenever any payment under this Agreement (i) shall be stated to be due on a day other than a Business Day, such payment shall be (except as otherwise expressly provided in this Agreement) made on the next succeeding Business Day, except in the case where the next succeeding Business Day would occur in the succeeding Month, in which case such payment shall be due on the preceding Business Day or (ii) is received after 12:00 p.m., New York City time such payment shall be (except as otherwise expressly provided in this Agreement) deemed to have been received on the next succeeding Business Day, and any such extension of time shall in such case be included in the computation of payment of interest, other interest or any fee payable hereunder, as the case may be.
- Set-Off, Etc. All payments under this Agreement shall be made without set-off or counterclaim and in such amounts as may be necessary in order that all such payments shall not be less than the amounts otherwise specified to be paid under this Agreement.
- Reinstatement. To the extent that (i) any Person makes a payment to any Party or (ii) any Party receives, or is deemed to have received, any payment or proceeds for application to an obligation, which payment or proceeds or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid to a trustee, receiver or any other Person under any Insolvency Law, State or federal law, common law or for equitable cause, then, to the extent such payment or proceeds are set aside, the obligation or part thereof intended to be satisfied shall be revived and continue in full force and effect, as if such payment or proceeds (to the extent set aside) had not been received, or deemed received, as the case may be, by the relevant Party.
- Non-Use Fee.
- Accrual of Non-Use Fee. For each day elapsed during the Revolving Period (commencing on the date specified in the Facility Fee Letter), there shall be accrued a fully earned and non-refundable "Non-Use Fee" in an amount equal to the quotient of:
- the product of:
- the Unused Capacity (as defined in Section 2.5(b) (Unused Capacity) below) for such day
multiplied by
- the Non-Use Fee Rate (as defined in the Facility Fee Letter)
divided by
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- Unused Capacity. For each day elapsed during the Revolving Period, "Unused Capacity" means the greater of:
- zero
and
- an amount in USD equal to, as of the close of business on such day (or, if such day is not a Business Day, the immediately preceding Business Day), the difference of:
- the Borrowing Limit (USD 120,000,000)
minus
- the Facility Balance at the close of business on such day.
- Payment of Non-Use Fee. The total amount of Non-Use Fee accrued during each Interest Accrual Period pursuant to Section 2.5(a) (Accrual of Non-Use Fee) above shall be due and payable by the Borrower to the Lenders (pro rata, according to their respective Lender Percentages) on the immediately following Settlement Date, in accordance with paragraph (b)(i) of clause Fourth of the Priority of Payments set forth in Section 10.2 (Priority of Payments) below.
- Lenders' Fee.
- Accrual of Lenders' Fee. For each day elapsed during the Revolving Period (other than a day on which interest accrues pursuant to Section 2.3 (Interest) above at the Default Funding Rate), there shall be accrued a fully earned and non-refundable "Lenders' Fee" in an amount equal to the quotient of:
- the product of:
- the Facility Balance at the close of business on such day
multiplied by
- the Lender Margin (as defined in the Facility Fee Letter)
divided by
-
- Payment of Lenders' Fee. The total amount of Lenders' Fee accrued during each Interest Accrual Period pursuant to Section 2.6(a) (Accrual of Lenders' Fee) above shall be due and payable by the Borrower to the Lenders (pro rata, according to their respective Lender Percentages) on the immediately following Settlement Date, in accordance with paragraph (b)(i) of clause Fourth of the Priority of Payments set forth in Section 10.2 (Priority of Payments) below.
- Other Facility Fees. The Borrower agrees to pay the Make-Whole Fee, the Termination Fee and the Structuring Fee at the time, in the manner and in the amount specified in the Facility Fee Letter.
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- Mandatory Payment of Principal.
- Prepayments to Cure Facility Borrowing Base Deficiency. If, on any Business Day prior to the Final Settlement Date, a Borrowing Base Deficiency exists, then the Borrower shall make a partial prepayment of the Facility Balance in an amount equal to the Borrowing Base Deficiency Amount within two Business Days thereafter; provided, however, that, at any time, if no Early Amortization Event shall have occurred, and no Event of Default shall have occurred and be continuing, at such time, the Borrower may, at its option, cure such Borrowing Base Deficiency by acquiring sufficient additional Eligible Receivables from the Seller, pursuant to (and subject to the conditions and other requirements set forth in) the Purchase Agreement, to increase the Borrowing Base by at least the Borrowing Base Deficiency Amount. Each prepayment of the Facility Balance pursuant to this Section 2.8(a) shall be made together with all accrued and unpaid interest and Lenders' Fee, on the portion of the Facility Balance being prepaid, through and including the date of such prepayment, as calculated by the Agent.
- Prepayments on Settlement Date. On each Settlement Date, the Borrower shall prepay the Facility Balance, subject to Available Funds, in the priorities and amounts set forth in clauses Fifth and Sixth of the Priority of Payments set forth in Section 10.2 (Priority of Payments) below.
- Payment at Maturity. The entire remaining Facility Balance, and all accrued but unpaid interest thereon and all other Secured Obligations under the Transaction Documents, shall be due and payable on the Maturity Date.
- No Other Prepayments. Except as specified in Sections 2.8(a) (Prepayments to Cure Facility Borrowing Base Deficiency) and 2.8(b) (Prepayments on Settlement Date) above, and Section 2.9 (Voluntary Prepayments) below, the Facility Balance shall not be prepaid.
- Voluntary Prepayments. In addition to the mandatory repayments of the Advances required under Section 2.8 (Mandatory Payment of Principal) above, the Borrower may, at its option (subject to the payment of any resulting Breakage Costs pursuant to Section 2.13 (Breakage Costs) below), upon at least two Business Days' (or, for a prepayment in full and termination in full of the commitments of the Lenders to make Advances under this Agreement, at least 30 days') prior written notice to the Agent, repay all or any portion of the principal balance of the Facility Balance.
- Notes. If so requested by any Lender, by written notice to the Borrower, the Borrower shall execute and deliver to such Lender (or, if applicable and if so specified in such notice, to any Person who is an assignee of such Lender pursuant to Section 14.17 (Assignment of Rights) below), promptly after the Borrower's receipt of such notice, a Facility Note or Facility Notes to evidence such Lender's Advance.
- Pro Rata Treatment. Each payment (including prepayment) on account of interest or any fee payable to the Lenders and any reduction in the principal balance of the Facility shall be made pro rata according to the respective outstanding amounts of the Advances of the relevant Lenders.
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- Reserve Requirements; Increased Costs.
- Notwithstanding any other provision of this Agreement, if any Change in Law shall:
- impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of or credit extended by any Lender;
- impose on the Agent or any Lender any Taxes (other than Indemnified Taxes and Taxes of the type described in clauses (a) through (d) of the definition of Excluded Taxes) on its loans, loan principal, advances or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or
- impose on any Lender any other condition (other than Taxes) affecting this Agreement or the Advance made by such Lender or any participation therein,
and the result of any of the foregoing shall be to increase the cost to such Lender of making or maintaining any Advance or to reduce the amount of any sum received or receivable by such Lender hereunder (whether of principal, interest or otherwise) by an amount deemed by such Lender to be material, then the Borrower shall pay to such Lender, upon demand, such additional amount or amounts as will compensate such Lender for such additional costs incurred or reduction suffered.
- If any Lender shall have determined that any Change in Law regarding capital adequacy has or would have the effect of reducing the rate of return on such Lender's capital or on the capital of such Lender's holding company, if any, as a consequence of this Agreement or the Advance made by such Lender pursuant hereto to a level below that which such Lender or such Lender's holding company could have achieved but for such Change in Law (taking into consideration such Lender's policies and the policies of such Lender's holding company with respect to capital adequacy) by an amount deemed by such Lender to be material, then from time to time the Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender or such Lender's holding company for any such reduction suffered.
- A certificate of a Lender setting forth the amount or amounts necessary to compensate such Lender or its holding company, as applicable, as specified in Section 2.12(a) or (b) above (accompanied by an explanatory description) shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay to such Lender the amount shown as due on any such certificate delivered by it within 10 days after its receipt of the same.
- Failure or delay on the part of any Lender to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital shall not constitute a waiver of such Lender's right to demand such compensation; provided, however, that, the Borrower shall not be under any obligation to compensate any Lender under Section 2.12(a) or (b) above with respect to increased costs or reductions with respect to any period prior to the date that is 120 days prior to such request; and provided, further, however, that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 120-day period referred to above shall be extended to include the period of retroactive effect thereof. The protection of this Section 2.12 shall be available to each Lender regardless of any possible contention of the invalidity or inapplicability of the Change in Law that shall have occurred or been imposed.
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- Breakage Costs. The Borrower shall pay to each Lender (or its related Liquidity Providers), as applicable, upon the request of such Lender or the Agent on its behalf, such amount or amounts as shall compensate such Lender for any actual loss (including loss of profit), cost or expense incurred by such Lender (as determined by such Lender, or, in the case of a Conduit Lender, its Liquidity Agent, on behalf of such Conduit Lender) as a result of (a) any repayment of an Advance (and interest thereon) on a date other than (i) a Settlement Date or (ii) the maturity date of the related Commercial Paper Notes or other funding source used by the applicable Lender or its related Liquidity Providers to fund such Advance, or (b) any failure by the Borrower to borrow funds in respect of any Advance requested by or on behalf of the Borrower pursuant to Section 2.2(a) (Borrowing Request) above, in either case, such compensation to include, without limitation, an amount equal to any loss or expense suffered by such Lender during the period from the date of receipt of such repayment or failure to borrow, as the case may be, to (but excluding) the scheduled maturity date of such source of funds (or, if earlier (in the case of a Lender that is not a Conduit Lender) the next following Settlement Date or the Scheduled Maturity Date), if the rate of interest obtained by such Lender upon the redeployment of an amount of funds equal to the amount of such repayment or failure to borrow, as the case may be, is less than the interest hereunder at the applicable Facility Rate (such expense to be referred to as "Breakage Costs"). All Breakage Costs shall be due and payable hereunder on the date of prepayment and as a condition precedent to any optional prepayment hereunder. The determination by any Lender or its Liquidity Agent of the amount of any such loss, cost or expense shall be set forth in a written notice to the Borrower in reasonable detail and shall be conclusive, absent manifest error.
- Taxes.
- Any and all payments by or on account of any obligation of the Borrower or any other MCC Entity hereunder or under any other Transaction Document shall be made free and clear of and without deduction or withholding for any Taxes, except as required by Applicable Law (which shall, for purposes of this Section 2.14, include FATCA); provided that, if any Applicable Law (as determined in the good faith discretion of the applicable Withholding Agent) requires the deduction or withholding of any Taxes from such payments, then (i) in the case of Indemnified Taxes, the sum payable by such Party shall be increased as necessary so that after making all required deductions or withholdings (including deductions or withholdings applicable to additional sums payable under this Section 2.14(a)) the Agent and each Lender (as the case may be) receives an amount equal to the sum it would have received had no such deductions or withholdings been made, (ii) the applicable Withholding Agent shall make (or cause to be made) such deductions or withholdings, and (iii) the applicable Withholding Agent shall timely pay the full amount so deducted or withheld to the relevant Governmental Authority in accordance with Applicable Law.
- In addition, the Borrower shall pay any Other Taxes to the relevant Governmental Authority in accordance with Applicable Law or, at the option of the Agent, timely reimburse it for the payment of any Other Taxes.
- The Borrower shall indemnify the Agent and each Lender within 10 days after written demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section 2.14(c)) payable or paid by the Agent
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- or such Lender, as the case may be, or required to be withheld or deducted from a payment to the Agent or such Lender and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to the Borrower by a Lender, or by the Agent, on behalf of itself or a Lender (accompanied by an explanatory description), shall be conclusive absent manifest error.
- Each Lender shall severally indemnify the Agent, within 10 days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that the Borrower has not already indemnified the Agent for such Indemnified Taxes, and without limiting the obligation of the Borrower to do so), (ii) any Taxes attributable to such Lender's failure to comply with the provisions of Section 14.18(d) (Facility Participant Register) below relating to the maintenance of a Facility Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Agent in connection with any Transaction Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Agent to set off and apply any and all amounts at any time owing to such Lender under any Transaction Document or otherwise payable by the Agent to such Lender from any other source against any amount due to the Agent under this Section 2.14(d).
- As soon as practicable after any payment of Indemnified Taxes or Other Taxes by the Borrower to a Governmental Authority, the Borrower shall deliver to the Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Agent.
- Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments under this Agreement shall deliver to the Borrower and the Agent, at the time or times reasonably requested by the Borrower or the Agent, such properly completed and executed documentation reasonably requested by the Borrower or the Agent as will permit such payments to be made without withholding or at a reduced rate. In addition, any Lender, if reasonably requested by the Borrower or the Agent, shall deliver such other documentation prescribed by Applicable Law or reasonably requested by the Borrower or the Agent as will enable the Borrower or the Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in the remainder of this Section 2.14(f)) shall not be required if in the Lender's reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender. Without limiting the generality of the foregoing, (i) any Lender that is a U.S. Person shall deliver to the Borrower, the Collection Account Bank and the Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower, the Collection Account Bank or the Agent) executed copies of U.S. Internal Revenue Service Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding Tax and (ii) any Lender that is not a U.S. Person shall deliver to the Borrower, the Collection Account Bank and the Agent, on or prior to the date on which such
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- Lender becomes Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower and the Agent), executed copies of the appropriate U.S. Internal Revenue Service Form W-8 (and supporting documentation, as applicable). If a payment made to a Lender under any Transaction Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower and the Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Agent such documentation prescribed by Applicable Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower, the Collection Account Bank or the Agent as may be necessary for the Borrower, the Collection Account Bank and the Agent to comply with their obligations under FATCA and to determine that such Lender has complied with its obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of the preceding sentence, "FATCA" shall include any amendments made to FATCA after the date of this Agreement. Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower, the Collection Account Bank and the Agent in writing of its legal inability to do so.
- If any Party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 2.14 (including by the payment of additional amounts pursuant to this Section 2.14), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section 2.14 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this Section 2.14(g) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this Section 2.14(g), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this Section 2.14(g) the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This paragraph shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.
- Each Party's obligations under this Section 2.14 shall survive (i) the resignation or replacement of the Agent, (ii) any assignment of rights by, or the replacement of, any Lender, and (iii) the repayment, satisfaction or discharge of all obligations under any Transaction Document.
- Duty to Mitigate.
- In the event (i) any Lender delivers a certificate requesting compensation pursuant to Section 2.12 (Reserve Requirements; Increased Costs) above or (ii) the Borrower is required to pay any
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- Indemnified Taxes or additional amounts to any Lender or any Governmental Authority on account of any Lender pursuant to Section 2.14 (Taxes) above, then, in each case, the Borrower may, at its sole expense and effort, upon notice to such Lender and the Agent, require such Lender to transfer and assign, without recourse (in accordance with and subject to the restrictions contained in Sections 14.7 (Binding Effect, Assignment, Etc.) and 14.17 (Assignment of Rights) below), all of its interests, rights (other than its then-existing rights to payments pursuant to Section 2.12 (Reserve Requirements; Increased Costs) or 2.14 (Taxes) above) and obligations under this Agreement to an eligible Lender Assignee (which assignee may be another Lender, if a Lender accepts such assignment); provided, however, that, (x) such assignment shall not conflict with any law, rule or regulation or order of any court or other Governmental Authority having jurisdiction, (y) the Borrower shall have received the prior written consent of the Agent, and (z) the Borrower or such assignee shall have paid to the affected Lender in immediately available funds an amount equal to the sum of the principal of and interest accrued to the date of such payment on the outstanding Advance of such Lender plus all fees and other amounts accrued for the account of such Lender hereunder with respect thereto (including any amounts under Section 2.12 (Reserve Requirements; Increased Costs) above); and provided further, however, that, if prior to any such transfer and assignment the circumstances or event that resulted in such Lender's claim for compensation under Section 2.12 (Reserve Requirements; Increased Costs) above or the amounts paid pursuant to Section 2.14 (Taxes) above, as the case may be, cease to cause such Lender to suffer increased costs or reductions in amounts received or receivable or reduction in return on capital, or cease to result in amounts being payable under Section 2.14 (Taxes) above, as the case may be (including as a result of any action taken by such Lender pursuant to Section 2.15(b) below), or if such Lender shall waive its right to claim further compensation under Section 2.12 (Reserve Requirements; Increased Costs) above in respect of such circumstances or event or shall waive its right to further payments under Section 2.14 (Taxes) above in respect of such circumstances or event, then such Lender shall not thereafter be required to make any such transfer and assignment hereunder.
- If (i) any Lender shall request compensation under Section 2.12 (Reserve Requirements; Increased Costs) above or (ii) the Borrower is required to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority on account of any Lender pursuant to Section 2.14 (Taxes) above, then such Lender shall use reasonable efforts (which shall not require such Lender to incur an unreimbursed loss or unreimbursed cost or expense or otherwise take any action inconsistent with its internal policies or legal or regulatory restrictions or suffer any disadvantage or burden deemed by it to be significant) (x) to file any certificate or document reasonably requested in writing by the Borrower or (y) to assign its rights and delegate and transfer its obligations hereunder to another of its offices, branches or affiliates, if such filing or assignment would reduce its claims for compensation under Section 2.12 (Reserve Requirements; Increased Costs) above or would reduce amounts payable pursuant to Section 2.14 (Taxes) above, as the case may be, in the future. The Borrower shall pay all reasonable costs and expenses incurred by any Lender in connection with any such filing or assignment, delegation and transfer.
- Loan Identifiers. The Borrower (a) authorizes the Agent to cause, from time to time and at the option of the Agent one or more CUSIPs, ISINs, common codes or other loan identification codes (each, a "Loan Identifier") to be assigned to the Advances and (b) shall, from time to
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- time, at the request of the Agent, take all commercially reasonable actions necessary to cooperate with and assist the Agent in obtaining any such Loan Identifier.
- Security Interest
- Grant of Security Interest. As security for the prompt and complete payment when due (whether on Settlement Dates, on the Maturity Date or otherwise) of all the Secured Obligations, the Borrower hereby grants to the Agent, for the benefit of the Secured Parties, a security interest in all of such Borrower's right, title, and interest in, to and under any and all accounts, cash, Eligible Investments, chattel paper, commercial tort claims, commodity contracts, Deposit Accounts, documents, equipment, Equity Interests, fixtures, general intangibles, goods, instruments, Outstanding Balances, inventory, investment property, Investments, letter of credit rights and supporting obligations, and all other personal property and assets, in each case whether now owned or hereafter acquired, including, without limitation, the following, in each case, whether now owned or hereafter acquired (collectively, the "Pledged Collateral"):
- the Receivables;
- all Medallion Collateral and Other Transferred Property with respect to the Receivables;
- all Hedge Agreements and rights under Hedging Transactions;
- the Accounts;
- all Collections;
- the Transaction Documents and other Assigned Documents;
- all rights of the Borrower under, or in connection with, the MRP+ Program and the MRP+ Program Documents;
- all of the Borrower's rights under insurance policies relating to Receivables together with related legal proceeds;
- any recoveries from the sale or refinancing of the Receivables or any other Pledged Collateral;
- all books and records pertaining to the other Pledged Collateral; and
- to the extent not otherwise included, all proceeds and products of any and all of the foregoing.
- Delivery of Collateral. All certificates or instruments representing or evidencing Pledged Collateral, if any, shall be delivered to and held by the Agent pursuant to this Agreement (or, if applicable, to the Custodian under the Custodial Agreement), shall be in suitable form
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- for transfer by delivery or shall be accompanied by duly executed instruments of transfer or assignment in blank, all in form and substance reasonably satisfactory to the Agent and, to the extent not constituting an assignment, shall be irrevocable powers of attorney coupled with an interest. At any time following the occurrence, and during the continuance, of an Event of Default, the Agent shall have the right, at any time and without notice to the Borrower or any Secured Party, to transfer to or to register in the name of the Agent or any of its nominees any or all of the Pledged Collateral.
- Collateral Assignment. The Borrower hereby collaterally assigns to the Agent, for the benefit of the Secured Parties, all of the Borrower's right, title and interest in, to and under each of the Transaction Documents (other than this Agreement), the MRP+ Program Documents, the Medallion Loan Agreements relating to each of the Receivables, and all other agreements, documents and instruments evidencing, securing or guarantying any Receivable and all other agreements, documents and instruments related to any of the foregoing (the "Assigned Documents"). The Borrower confirms and agrees that the Agent (or any designee thereof) shall have the right to enforce and, following the occurrence, and during the continuance, of an Event of Default, at the option of the Agent, the sole right to enforce the Borrower's rights and remedies under each Assigned Document, but without any obligation on the part of the Agent or the Secured Parties to perform any of the obligations of the Borrower under any such Assigned Document. Such assignment to the Agent shall terminate on the Final Settlement Date.
- Borrower Remains Liable. Notwithstanding anything in this Agreement to the contrary, (a) the Borrower shall remain liable under any contracts and agreements included in the Pledged Collateral to perform all of its duties and obligations thereunder to the same extent as if this Agreement had not been executed, (b) the exercise by the Agent as agent of the Lenders or by the Agent as agent of the Secured Parties of any of its rights under this Agreement shall not release the Borrower from any of its duties or obligations under any contracts or agreements included in the Pledged Collateral, (c) the Agent, as agent of the Secured Parties, shall not have any obligation or liability under any contracts and agreements included in the Pledged Collateral by reason of this Agreement, and (d) neither the Agent nor any of the Lenders shall be obligated to perform any of the obligations or duties of the Borrower under any contract or agreement included in the Pledged Collateral or to take any action to collect or enforce any claim for payment assigned under this Agreement. In particular, and without limiting the generality of the foregoing, the Agent and the Secured Parties are assuming no obligation in respect of the MRP+ Program.
- Taxes. The Borrower agrees to pay, and to hold the Agent and the Lenders harmless from, any and all liabilities with respect to, or resulting from any delay in paying, any and all excise, sales, property or other similar Taxes (excluding, for the avoidance of doubt, Excluded Taxes) that may be payable or determined to be payable with respect to any of the Pledged Collateral or this Agreement.
- Further Assurances; Financing Statements.
- Further Assurances. The Borrower agrees that, at any time and from time to time, it shall at the expense of the Borrower promptly authorize, execute and deliver, as applicable, all further
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- instruments and documents and take all further action that may be necessary or that the Agent may reasonably request to maintain the perfection of the Agent's security interest in the Pledged Collateral. Without limiting the generality of the foregoing, the Borrower shall authorize, execute and file, as applicable, such financing or continuation statements, or amendments thereto, and such other instruments or notices as may be necessary or that the Agent may request to perfect the assignments and security interests granted by this Agreement.
- Authorization to File Financing Statements. The Borrower, and each Lender, hereby severally authorizes the Agent to file one or more financing or continuation statements, and amendments thereto, relating to all or any part of the Pledged Collateral without the signature of the Borrower or Secured Party where permitted by law. A photographic or other reproduction of this Agreement or any financing statement covering the Pledged Collateral or any part thereof shall be sufficient as a financing statement where permitted by law. The Agent will promptly send to the Borrower any financing or continuation statements thereto which it files without the signature of the Borrower. The Agent will promptly send the Borrower or the Secured Parties, as the case may be, the filing or recordation information with respect thereto.
- Additional Information. The Borrower shall furnish to the Agent, from time to time, such statements and schedules further identifying and describing the Pledged Collateral and such other reports in connection with the Pledged Collateral as the Agent may reasonably request, all in reasonable detail.
- Limitation on Duties Regarding Presentation of Collateral. The Agent's duty with respect to the custody, safekeeping and physical preservation of the Pledged Collateral in its possession, under Section 9-207 of the UCC or otherwise, shall be to deal with it in the same manner as the Agent deals with similar property for its own account. Neither the Agent nor any of its directors, officers or employees shall be liable for failure to demand, collect or realize upon all or any part of the Pledged Collateral or for any delay in doing so or shall be under any obligation to sell or otherwise dispose of any Pledged Collateral upon the request of the Borrower or otherwise.
- Powers Coupled with an Interest. All authorizations and agencies herein contained with respect to the Pledged Collateral are irrevocable and powers coupled with an interest.
- Release of Security Interest.
- Upon the occurrence of the Final Settlement Date, the Agent shall release its security interest in any remaining Pledged Collateral; provided, however, that, if any payment, or any part thereof, of any of the Secured Obligations is rescinded or must otherwise be restored or returned by the Agent upon the occurrence of an Insolvency Event of the Borrower (or upon or as a result of the appointment of a receiver, intervener or conservator of, or a trustee or similar officer for, the Borrower or any substantial part of its property, or otherwise), this Agreement, all rights hereunder and the Liens created hereby shall continue to be effective, or be reinstated, as though such payments had not been made.
- The Agent shall, at the sole cost and expense of the Borrower (and subject to the reimbursement by the Borrower of all related legal fees, costs and expenses), deliver such releases and
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- other documents, and file (or authorize the filing of) such UCC-3 termination statements, as may be reasonably requested by the Borrower to effect the releases pursuant to Section 3.9(a) above.
- Conditions Precedent
- Closing Date Conditions Precedent. The effectiveness of this Agreement and the obligations of the Parties hereunder are subject to the satisfaction (or waiver, in the sole discretion of the Agent) of the conditions precedent that:
- Required Documents. On or prior to the Closing Date, the Borrower shall have delivered to the Agent and Lenders the following, all in form and substance reasonably satisfactory to the Agent:
- Transaction Documents, Etc. Executed copies of:
- the documents referred to in clauses (a) through (m) of the definition of Transaction Documents in Section 1.1 (Definitions) above;
- all other documents and instruments reasonably requested by the Agent to effectuate the transactions contemplated hereby or to create and perfect the Liens of the Agent with respect to all Pledged Collateral, including without limitation:
- copies of all filings to be made under the UCC, in form for filing; and
- the certificates (if any) representing any and all Equity Interests in the Borrower, together with powers, in a form reasonably satisfactory to the Agent, executed in blank by DPA 1, as the registered owner thereof.
- MRP+ Program. Executed copies of:
- the Loan Enhancement Agreement Joinder; and
- all other documents reasonably requested by the Agent to reflect the rights of the Borrower and the Agent, as applicable, under, or in connection with, the MRP+ Program and the MRP+ Program Documents.
- Organizational Documents. Copies of the certificate of formation, certificate of incorporation or other formation document of each MCC Entity, as amended or amended and restated through the Closing Date, certified by the Secretary of State of its respective State of organization.
- Good Standing Certificates. (A) A certificate of good standing for each MCC Entity from the Secretary of State of its State of organization and (B) similar certificates from all other jurisdictions in which such MCC Entity does business and where the failure to be qualified could be reasonably expected to have a Material Adverse Effect.
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- Secretary's Certificates. A certificate of the secretary of each MCC Entity as to (A) an attached copy of resolutions of such entity's board of directors (or, for any limited liability company, comparable documentation) evidencing approval of, to the extent applicable, (1) the Facility and (2) the other transactions evidenced by the Transaction Documents, (B) an attached copy of the by-laws (or, where applicable, limited liability company operating agreement, trust agreement or memorandum and articles of association) of such MCC Entity, as amended or amended and restated through the Closing Date, and (C) incumbency and signatures of officers of such MCC Entity who executed any of the Transaction Documents.
- Officer's Certificates. One or more certificates of officers of the MCC Entities, as applicable, as to:
- compliance with the Financial Representations set forth in Section 5.1 (Financial Condition) below (both immediately prior to, and after giving effect to, the execution and delivery of the Transaction Documents and the making of the Advances on such date;
- the accuracy of the representations and warranties set forth in Article 5 (Representations and Warranties) below; and
- the satisfaction of the applicable conditions set forth in this Article 4.
- Insurance. All certificates of insurance and copies of insurance policies required hereunder.
- Legal Opinions. Favorable written opinions of counsel to the MCC Entities and U.S. Bank, each dated as of the Closing Date, addressed to the Agent and the Lenders, in such form and substance as may be reasonably acceptable to the Agent and the Lenders, as of such date, relating to such matters the Agent may deem necessary or appropriate, each of which also shall provide that it may be relied upon by the Agent, the initial Lender and any Person that becomes a Lender subsequent to the Closing Date in accordance with Section 14.17 (Assignment of Rights) below.
- KYC, AML, Etc. Upon the reasonable request of the Agent or any Lender made at least ten days prior to the Closing Date, the documentation and other information so requested in connection with applicable "know your customer" and anti-money-laundering rules and regulations, including the PATRIOT Act, in each case at least three Business Days prior to the Closing Date.
- Other Documents. Such other documents as the Agent may reasonably request.
- Payment of Fees and Expenses. The Agent shall have received the Commitment Fee (to be applied to the Structuring Fee, in the manner set forth in the Facility Fee Letter) and reimbursement of the Agent's and the Lenders' reasonable out-of-pocket expenses reimbursable pursuant to this Agreement and the Facility Fee Letter, which amounts may be deducted from the amount advanced in respect of the Facility on the Closing Date.
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- Compliance. All representations and warranties set forth in Article 5 (Representations and Warranties) below shall be true and correct in all material respects as of the Closing Date (or, to the extent that such representations and warranties speak as of an earlier date, such earlier date), and the Borrower shall be in compliance with all the terms and provisions set forth herein and in each other Transaction Document on its part to be observed or performed on or before the Closing Date.
- No Default, Etc. As of the Closing Date, (i) no Default, Event of Default, Early Amortization Event, Unmatured Servicer Default or Servicer Default shall have occurred and (ii) no event that has had or could reasonably be expected to have a Material Adverse Effect has occurred and is continuing.
- Credit Approval. The Agent's receipt of final credit approval and the satisfaction of all conditions contained therein.
- Conditions Precedent to All Advances. Each Advance shall be subject to the satisfaction (or waiver, in the sole discretion of the Agent) of the conditions precedent that, on or prior to the applicable Borrowing Date:
- Payment of Fees and Expenses. The Agent shall have received all fees and other amounts to be paid in connection with such Advance pursuant this Agreement and the Facility Fee Letter, and reimbursement of the Agent's and the Lenders' reasonable out-of-pocket expenses reimbursable pursuant to this Agreement and the Facility Fee Letter, which amounts may be deducted from the amount of such Advance on such Borrowing Date.
- Compliance. All representations and warranties of the Borrower and the Servicer set forth in Article 5 (Representations and Warranties) below, and of the other MCC Entities under each of the other Transaction Documents, shall be true and correct in all material respects as of such Borrowing Date (or, to the extent that such representations and warranties speak as of an earlier date, such earlier date), and each of the MCC Entities shall be in compliance with all the terms and provisions set forth herein and in each other Transaction Document on its part to be observed or performed on or before such Borrowing Date.
- No Default, Etc. As of such Borrowing Date, both before and immediately after giving effect to the applicable Advance, (i) no Early Amortization Event shall have occurred, (ii) no Default, Event of Default, Unmatured Servicer Default or Servicer Default shall have occurred and be continuing and (iii) no event that has had or could reasonably be expected to have a Material Adverse Effect has occurred and is continuing.
- Hedging Transactions. One or more Hedging Transactions have been entered into between the Borrower and the Hedge Provider, such that, after giving effect to the proposed Advance, the Borrower will be in compliance with Section 8.1 (Hedge Requirement) below, and the related Borrowing Request includes a certification of the Borrower and the Servicer as to compliance with such Section 8.1, in form and substance satisfactory to the Agent.
- Availability. No Borrowing Base Deficiency exists, or shall exist, after giving effect to such Advance, and the Borrowing Base Certificate accompanying the Borrowing Request contains a
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- calculation of the Facility Balance, the Eligible Receivables Balance, the Borrowing Base and Availability, both immediately before and after giving effect to such proposed Advance.
- Borrowing Request. The Agent shall have received a duly-executed and completed Borrowing Request (together with the Borrowing Base Certificate to be delivered therewith) in accordance with Section 2.2(a) (Borrowing Request) above.
- Purchase of Receivables.
- Assignment. The Agent shall have received duly-executed Assignment with respect to the Additional Receivables to be included in the Borrowing Base in connection with such Borrowing Request.
- Satisfaction of Conditions. All conditions precedent to the transfer of the Additional Receivables and Other Transferred Property to the Borrower pursuant to the Purchase Agreement have been satisfied.
- Eligibility. Each of the Additional Receivables is an Eligible Receivable.
- Delivery of Receivable Files.
- Required Deliveries to Custodian. The Borrower or the Servicer shall have delivered to the Custodian (with a copy to the Agent), in accordance with the Custodial Agreement, by not later than 1:00 p.m., New York City time, three Business Days prior to such Borrowing Date:
- a Notice of Pledge, together with a Receivables Schedule; and
- with respect to each Additional Receivable, a Receivable File, which shall include (1) the Specified Documents and (2) any other documents required to be included therein under the terms of the Custodial Agreement.
- Collateral Receipt.
- By not later than 2:30 p.m., New York City time, on the Business Day immediately preceding the Borrowing Date, the Custodian shall have delivered to the Agent a Collateral Receipt, with respect to each Additional Receivable, in accordance with the Custodial Agreement.
- If the Custodian has issued an Exception Report, any Deficiencies have been cured, or waived by the Agent, in accordance with the Custodial Agreement.
- Loan Enhancement Agreement Assignment. (1) A Loan Enhancement Agreement Assignment has been duly executed and delivered, with respect to each of the Additional Receivables, in accordance with the terms of the Loan Enhancement Agreement, and (2) all other actions have been taken which are necessary and sufficient such that the Borrower exclusively shall have all rights under the Supplemental Loan Deficiency Guaranty with respect to each of the Additional Receivables.
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- TML IV Closing. In the case of the initial Advance, the purchase and sale of 100.00% of the Equity Interests in TML IV shall have closed, and the purchase price shall have been paid in full, in immediately-available funds, by MCC to DZ Bank, pursuant to the TML IV Purchase Agreement.
- Advances Do Not Constitute a Waiver. The making of an Advance hereunder shall not constitute a waiver of any condition set forth in this Article 4 unless such waiver is in writing and executed by the Agent.
- Representations and Warranties
To and for the benefit of the Secured Parties, each of the Borrower and the Servicer hereby represents and warrants (which representations and warranties shall survive the execution and delivery of this Agreement), as of the Closing Date, and each of the Borrower and the Servicer shall be deemed to represent and warrant, as of each Borrowing Date, and at other times prior to the Final Settlement Date, as follows:
- Financial Condition.
- Equity. The Consolidated Net Worth is not, at any time, less than USD 100,000,000.
- Profitability. Commencing with the Fiscal Year ending on December 31, 2026, the Adjusted Consolidated Net Income of MCC for each Fiscal Year is not less than USD 1.
- Organization, Etc. (a)(i) Each of the Borrower and DPA 1 is a limited liability company, duly formed, legally existing and in good standing under the laws of the State of Delaware, (ii) MCC is a corporation, duly organized, legally existing and in good standing under the laws of the State of Delaware, (b) each MCC Entity (i) has all requisite power and authority and all requisite governmental licenses, authorizations, consents and approvals to (A) own or lease its assets and carry on its business and (B) execute, deliver and perform its obligations under the Transaction Documents to which it is a party, and (ii) is duly qualified as a foreign entity, and is licensed and in good standing, in all jurisdictions in which (A) the nature of its business or location of its properties require such qualification or licensing, or (B) the failure to be qualified or licensed could reasonably be expected to have a Material Adverse Effect, and (c) as of the date hereof, the present name, former names (if any), locations, place of formation, tax identification number, organizational identification number and the other information, with respect to the Borrower, is correctly set forth in Exhibit B (Borrower Information).
- Collateral. (a) The Borrower (i) owns, free of all Liens (other than Permitted Liens), (A) the Receivables and Medallion Collateral, (B) the Accounts and (C) any and all Collections arising or received from time to time, and (ii) has the power and authority to grant to the Agent a Lien in the Pledged Collateral, as security for the Secured Obligations.
- Consents. (a) Each MCC Entity's execution, delivery and performance of the Transaction Documents to which it is a party (i) have been duly authorized by all necessary limited liability company, corporate or other action of such MCC Entity, (ii) will not result in the creation or imposition of
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- any Lien upon the Pledged Collateral, other than Liens created by this Agreement and the other Transaction Documents, (iii) do not violate any provisions of (A) such MCC Entity's Organizational Documents, (B) any law, regulation, order, injunction, judgment, decree or writ to which such MCC Entity is subject or (C) any material contract or material agreement or require the consent or approval of any other Person which has not already been obtained, except (in the case of the foregoing clauses (a)(iii)(A), (a)(iii)(B) and (a)(iii)(C)) where such violation, or the failure to obtain such consent or approval, could not reasonably be expected to result in a Material Adverse Effect, and (b) the individual or individuals executing the Transaction Documents on behalf of the MCC Entities are duly authorized to do so.
- Governmental Authorization; Other Consents. No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with the execution, delivery or performance by, or enforceability against, any MCC Entity of this Agreement or any other Transaction Document to which it is a party, or the validity or enforceability of the Receivables, except for (a) such approvals, consents, exemptions, authorizations, actions or notices that have been duly obtained, taken or made and are in full force and effect, or (b) where the failure to obtain such approvals, consents, exemptions, authorizations or take such actions could not reasonably be expected to result in a Material Adverse Effect. No MCC Entity has received a notice, nor does the Borrower have any knowledge or reason to believe, that the TLC or any other Governmental Authority intends to seek the cancellation, termination or modification of any of such MCC Entity's licenses or permits, or that valid grounds for such cancellation, termination or modification exist.
- Financial Statements; No Material Adverse Effect.
- Audited Financial Statements. The audited financial statements of MCC for the Fiscal Year ended December 31, 2024 were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein, and do or will fairly present in all material respects the financial condition of MCC as of the date thereof and their results of operations and cash flows for the period covered thereby in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein.
- Unaudited Financial Statements. The unaudited consolidated balance sheet of MCC and its Subsidiaries and the related consolidated statements of income or operations, shareholders' equity and cash flows for the Fiscal Quarter ended on September 30, 2025 were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein, and do or will fairly present in all material respects the financial condition of MCC and its Subsidiaries as of the date thereof and their results of operations and cash flows for the period covered thereby, subject to the absence of notes and to normal year-end audit adjustments.
- No Material Adverse Effect. No event that has had or could reasonably be expected to have a Material Adverse Effect has occurred since December 31, 2024. No MCC Entity expects an imminent event that is reasonably expected to result in a Material Adverse Effect.
- Actions Before Governmental Authorities. There are no actions, suits or proceedings at law or in equity or by or before any Governmental Authority now pending or, to the
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- knowledge of any MCC Entity, threatened against or affecting any MCC Entity or its properties, that could reasonably be expected to be adversely determined, and, if so determined, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
- Litigation. There are no actions, suits, proceedings, claims, disputes or investigations pending or, to the knowledge of any MCC Entity, threatened, at law, in equity, in arbitration or before any Governmental Authority, by or against any MCC Entity, or against any of their properties, assets or revenues, that, (a) either individually or in the aggregate could reasonably be expected to have a Material Adverse Effect or (b) purport to affect or pertain to (i) any Pledged Collateral or (ii)(A) this Agreement, (B) any other Transaction Document or (C) any of the transactions contemplated hereby or thereby.
- Laws, Etc.
- No Violation, Etc. No MCC Entity is (i) in violation of any law, rule or regulation, or in default with respect to any judgment, writ, injunction or decree of any Governmental Authority, where such violation or default is reasonably expected to result in a Material Adverse Effect or (ii) in breach or default, in any material respect, of or under any provision of any agreement or instrument evidencing material Indebtedness, any MRP+ Program Document or any other material agreement to which it is a party or by which it is bound (any breach or default of the type described in this clause (ii), a "Material Contract Violation").
- Investment Company Act, Margin Regulations, Etc. (i) No MCC Entity is an "investment company" or a company "controlled" by an "investment company" under the Investment Company Act of 1940, as amended, (ii) either (A) the Borrower is not a "covered fund," or qualifies for exemption from the definition of "covered fund," as defined in the Volcker Rule, or (B) the interests of the Agent and the Lenders under the Transaction Documents otherwise do not constitute "ownership interests" in a "covered fund," for purposes of the Volcker Rule, (iii)(A) no MCC Entity is engaged as one of its important activities in extending credit for "margin stock" (under Regulations X, T and U of the Federal Reserve Board of Governors), and (B) not more than 25.00% of the value of the assets of the MCC Entities, on a consolidated basis, consists of such margin stock, (iv) to the extent applicable to the conduct of its business, each MCC Entity has complied in all material respects with the Federal Fair Labor Standards Act, (v) no MCC Entity is a "holding company" or an "affiliate" of a "holding company" or a "subsidiary company" of a "holding company" as each term is defined and used in the Public Utility Holding Company Act of 2005, (vi) the properties and assets of the MCC Entities have not been used by any MCC Entity (or, to the knowledge of any MCC Entity, by previous Persons), in disposing, producing, storing, treating, or transporting any hazardous substance, other than in material compliance with Applicable Law, and (vii) each MCC Entity has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all Governmental Authorities that are necessary to conduct their respective businesses as currently conducted.
- Sanctions.
- No MCC Entity or Affiliate thereof, or any of their respective agents acting or benefiting in any capacity in connection with the transactions contemplated by this Agreement,
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- is (A) in violation of any Anti-Terrorism Law, (B) engaging in or conspiring to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding or attempts to violate, any of the prohibitions set forth in any Anti-Terrorism Law, or (C) a Blocked Person.
- No MCC Entity or Affiliate thereof, or any of their respective agents acting or benefiting in any capacity in connection with the transactions contemplated by this Agreement, (A) conducts any business or engages in making or receiving any contribution of funds, goods or services to or for the benefit of any Blocked Person, or (B) deals in, or otherwise engages in any transaction relating to, any property or interest in property blocked pursuant to Executive Order No. 13224, any similar executive order or other Anti-Terrorism Law.
- None of the funds to be provided to (or for the benefit of) the Borrower under this Agreement will be used, directly or indirectly, (A) for any activities in violation of any applicable anti-money laundering, economic sanctions and anti-bribery laws and regulations laws and regulations or (B) for any payment to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of the United States Foreign Corrupt Practices Act of 1977, as amended.
- Compliance with MRP+ Program, Etc. (a) Each MCC Entity is in compliance with all terms and conditions of the MRP+ Program and the MRP+ Program Documents, (b) the MRP+ Program and the MRP+ Program Documents remain in full force and effect, and (c) no MRP+ Program Impairment has occurred.
- Information Correct and Current. No written information, report, financial statement, exhibit or schedule (other than financial projections, forward looking information and information of a general economic nature or general industry nature) furnished, by, or on behalf of, any MCC Entity to the Agent in connection with any Transaction Document or included therein or delivered pursuant thereto contained, or, when taken as a whole, contains, when furnished (or as of any earlier date specified therein), any material misstatement of fact or when taken together with all other such written information or documents, omits to state any material fact necessary to make the statements therein, taken as a whole and in light of the circumstances under which they were made, not materially misleading at the time such statement was made. Additionally, any and all financial or business projections provided by, or on behalf of, any MCC Entity to the Agent, whether prior to, on or after the Closing Date, shall be provided in good faith and based on assumptions believed to be reasonable at the time of preparation and delivery (it being understood that such projected information may vary from actual results and that such variances may be material).
- Hedging Transactions. Each Hedging Transaction and Hedge Agreement is in full force and effect in accordance with its terms, and no "Termination Event" or "Event of Default" (other than a Hedge Provider Event) has occurred under any Hedge Agreement.
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- Tax Matters. Except for those being contested in good faith with adequate reserves under GAAP or that, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect, (a) each MCC Entity has filed all U.S. federal and other material State, local and non-U.S. Tax returns that it is required to file, (b) each MCC Entity has duly paid or fully reserved for all Taxes or installments thereof (including any interest or penalties) as and when due, which have or may become due, and (c) each MCC Entity has paid or fully reserved for any Tax assessment received by such MCC Entity, if any (including any Taxes being contested in good faith and by appropriate proceedings).
- Solvency. Each MCC Entity is Solvent.
- ERISA. No MCC Entity or ERISA Affiliate maintains, makes contributions to, or has any obligations with respect to any Plan or Multiemployer Plan, except as could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect. No MCC Entity or ERISA Affiliate thereof is a "benefit plan investor" as defined in section 3(42) of ERISA.
- Insurance; Indemnification
- Insurance Coverage. The initial Servicer agrees to maintain, at all times, covering each of the MCC Entities (except to the extent that, at such time, the same is being maintained by MCC pursuant to Section 13 (Insurance) of the Performance Guaranty), (i) a fidelity insurance in an amount equal to USD 2,000,000 and (ii) an errors and omissions policy in an amount equal to USD 2,000,000, in each underwritten by an insurance company and on terms and conditions acceptable to the Agent, with the Agent, for the benefit of the Secured Parties, being named as a loss payee of each such policy.
- Certificates. The Borrower shall deliver to the Agent certificates of insurance that evidence compliance with the insurance obligations in Section 6.1 (Insurance Coverage) above and the obligations contained in this Section 6.2. Any failure of the Agent to scrutinize such insurance certificates for compliance is not a waiver of any of the Agent's rights, all of which are reserved. The Borrower shall provide the Agent with copies of each insurance policy, and, upon entering or amending any insurance policy required hereunder, the Borrower shall provide the Agent with copies of such policies and shall promptly deliver to the Agent updated insurance certificates with respect to such policies.
- Borrower Indemnity.
- The Borrower shall indemnify and hold the Agent, the Lenders, the other Secured Parties and their officers, directors, employees, agents, in-house attorneys, representatives and equity holders (each, an "Indemnified Person") harmless from and against any and all claims, costs, expenses, damages and liabilities (including such claims, costs, expenses, damages and liabilities based on liability in tort, including strict liability in tort), including reasonable and documented out-of-pocket attorneys' fees and disbursements and other reasonable and documented out-of-pocket costs of investigation or defense (including those incurred upon any appeal) (collectively, "Liabilities"), that may be instituted or asserted against or incurred by such Indemnified Person as the result of credit having been extended, suspended
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- or terminated under this Agreement and the other Transaction Documents or the administration of such credit, or in connection with or arising out of the transactions contemplated hereunder and thereunder, or any actions or failures to act in connection therewith, or arising out of the disposition or utilization of the Pledged Collateral, but excluding, in all cases, any Liabilities, if, and solely to the extent, that they result from (i) any Indemnified Person's gross negligence, willful misconduct or material breach of its obligations under any Transaction Document or (ii) from disputes, claims, demands, actions, judgments or suits not arising from any act or omission by the Borrower or Affiliate thereof brought by an Indemnified Person against any other Indemnified Person. In no event shall the Borrower or any Indemnified Person be liable on any theory of liability for any special, indirect, consequential or punitive damages (including any loss of profits, business or anticipated savings). This Section 6.3 shall survive the repayment of indebtedness under, and otherwise shall survive the expiration or other termination of, this Agreement.
- Without limiting or being limited by the foregoing, the Borrower shall pay on demand to each Indemnified Person any and all amounts necessary to indemnify such Indemnified Person from and against any and all Liabilities resulting from any of the following (excluding any such Liabilities to the extent that they result from any Indemnified Person's gross negligence, willful misconduct or material breach of its obligations under any Transaction Document):
- the adjustment or any non-cash reduction in the Outstanding Balance of any Receivable other than as expressly permitted under this Agreement;
- any representation or warranty made or deemed made by any MCC Entity, under or in connection with any Transaction Document, or any other information or report delivered by or on behalf of any MCC Entity pursuant to any Transaction Document, having been false, incorrect or misleading in any respect when made or deemed made;
- the failure by any MCC Entity to comply with any term, provision or covenant contained in any Transaction Document to which it is party;
- the failure to pay when due any fees or taxes payable by the any MCC Entity for the execution, delivery, filing and recording of this Agreement or any other Transaction Document (including any UCC financing statements);
- the failure of the Servicer, any other MCC Entity or the Sub-Servicer to correctly report Eligible Receivables or any other matter in any report or other information provided by the Servicer or the Sub-Servicer to the Agent or the Custodian, or in any calculation made by the Servicer or the Sub-Servicer;
- the failure by the Servicer, any other MCC Entity, the Sub-Servicer or any agent, sub-servicer or sub-contractor of any of the foregoing to comply with any Applicable Law (whether with respect to any Receivable or related Medallion or otherwise);
- any failure of the Borrower to acquire and maintain legal and equitable title to, and ownership of any Receivables and the Other Transferred Property and Collections with respect thereto from the Seller, free and clear of any Lien (other than as created hereunder);
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- any failure of the Borrower to have the full benefit of the Supplemental Loan Deficiency Guaranty with respect to the Receivables;
- any failure by the Borrower to give reasonably equivalent value to the Seller in consideration for the transfer by the Seller to the Borrower of any Receivables or Other Transferred Property, or any attempt by any Person (other than an Indemnified Person or any Person acting through or under an Indemnified Person) to void any such transfer under any statutory provision or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code;
- any failure, at any time, to maintain in favor of the Agent as required under this Agreement and the other Transaction Documents a valid and enforceable security interest in the Pledged Collateral, or the failure, at any time, to maintain such security interests as first priority perfected security interests (subject to Permitted Liens) as required under this Agreement and the other Transaction Documents;
- any investigation, litigation or proceeding arising out of or related to this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of proceeds of the Advances made pursuant to this Agreement or any other Transaction Document delivered hereunder, the ownership of any Receivables, or any other investigation, litigation or proceeding relating to any MCC Entity in which any Indemnified Person becomes involved as a result of any of the transactions contemplated hereby;
- the commingling of Collections at any time with other funds; and
- any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) to the payment of any Receivable or any other claim brought by or on behalf of any Obligor (including, without limitation, a defense based on such Receivable not being a legal, valid and binding obligation of such Obligor enforceable against such Obligor in accordance with its terms).
- Servicer Indemnity.
- Indemnity Obligations of the Servicer. The Servicer shall indemnify and hold harmless each Indemnified Person from and against any and all Liabilities resulting from any of the following (excluding any such Liabilities to the extent that they result from any Indemnified Person's gross negligence, willful misconduct or material breach of its obligations under any Transaction Document):
- the failure by the Servicer or the Sub-Servicer (any of the foregoing, a "Servicing Entity") to comply with any term, provision or covenant contained in any Transaction Document to which it is party;
- any representation or warranty made or deemed made by the Servicer or the Sub-Servicer, under or in connection with any Transaction Document, or any other information or report delivered by or on behalf of the Servicer or the Sub-Servicer
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- pursuant to any Transaction Document, having been false, incorrect or misleading in any respect when made or deemed made;
- the failure of the Servicer or the Sub-Servicer to correctly report Eligible Receivables or any other matter in any report or other information provided by the Servicer or the Sub-Servicer to the Agent or the Custodian, or in any calculation made by the Servicer or the Sub-Servicer;
- the failure by the Servicer, the Sub-Servicer or any agent, sub-servicer or sub-contractor of any of the foregoing to comply with any Applicable Law (whether with respect to any Receivable or related Medallion or otherwise);
- any action, or failure to act, by the Servicer or the Sub-Servicer that results in:
- the failure to maintain in favor of the Agent as required under this Agreement and the other Transaction Documents a valid and enforceable security interest in the Pledged Collateral;
- the failure, at any time, to maintain such security interests as first priority perfected security interests (subject to Permitted Liens) as required under this Agreement and the other Transaction Documents; or
- any failure of the Borrower to acquire and maintain legal and equitable title to, and ownership of any Receivables and the Other Transferred Property and Collections with respect thereto from the Seller, free and clear of any Lien (other than Permitted Liens);
- any failure of the Borrower to have the full benefit of the Supplemental Loan Deficiency Guaranty with respect to the Receivables; or
- any dispute, claim, offset or defense to the payment of any Receivable or any amount pursuant to the Supplemental Loan Deficiency Guaranty; and
- the commingling of Collections at any time with other funds.
- Survival of Servicer Indemnities. Indemnification under this Section 6.4 shall survive the resignation or removal of the Servicer or the termination of this Agreement, with respect to any act (or the failure to act) by the Servicer which occurred (or failed to occur) prior to such resignation, removal or termination and shall include fees and expenses of counsel and expenses of litigation. If the Servicer shall have made any indemnity payments pursuant to this Section 6.4 and the Person to or on behalf of whom such payments are made thereafter collects any of such amounts from others, such Person shall promptly repay such amounts to the Servicer, without interest.
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- Reporting
- Monthly Settlement Reports. By not later than the Reporting Date immediately preceding each Settlement Date, the Servicer shall prepare, and furnish to the Agent (and the Borrower shall cause the Servicer to prepare, and furnish to the Agent), a Monthly Settlement Report, with respect to the most recent Remittance Period, which shall be certified as correct and complete by an Authorized Officer of each of the Borrower and the Servicer.
- Financial Statements. The Borrower shall furnish (or cause to be furnished) to the Agent the following financial statements (the "Financial Statements"), at the times, and in the manner, specified below:
- MCC Annual Audited Financial Statements. As soon as practicable (and in no event later than 120 days) after the end of each Fiscal Year, commencing with the Fiscal Year ending December 31, 2025, a consolidated balance sheet of MCC and its consolidated subsidiaries as at the end of such Fiscal Year and the related consolidated statements of income or operations, shareholders' equity and cash flows for such Fiscal Year, setting forth in each case in comparative form the figures for the previous Fiscal Year (it being understood that no such comparative figures will be available for the Fiscal Year ending December 31, 2025), audited and accompanied by a report and opinion of the Independent Accountants, which report and opinion shall be prepared in accordance with generally accepted auditing standards (and shall not be subject to any Qualification) to the effect that such consolidated financial statements present fairly in all material respects the financial condition, results of operations, shareholders' equity and cash flows of MCC and its consolidated subsidiaries, on a consolidated basis, in accordance with GAAP consistently applied.
- Borrower Annual Unaudited Financial Statements. As soon as practicable (and in no event later than 120 days) after the end of each Fiscal Year, commencing with the Fiscal Year ending December 31, 2026, an unaudited balance sheet of the Borrower as at the end of such Fiscal Year and the related consolidated statements of income or operations, shareholders' equity and cash flows for such Fiscal Year, setting forth in each case in comparative form the figures for the previous Fiscal Year (if applicable (it being understood that the Borrower will have no comparative figures for the Fiscal Year ending December 31, 2025)), and certified by the Borrower's Chief Executive Officer or Chief Financial Officer to the effect that they have been prepared in accordance with GAAP consistently applied (subject, as to interim statements, to lack of footnotes and year-end adjustments).
- MCC Quarterly Unaudited Financial Statements. As soon as practicable (and in no event later than 45 days) after the end of each of the first three Fiscal Quarters of each Fiscal Year (commencing with the first Fiscal Quarter in 2026), quarterly financial statements of MCC and its consolidated subsidiaries, prepared on a consolidated basis, as of the end of such Fiscal Quarter, including balance sheet and related statements of income and cash flows, certified by MCC's Chief Executive Officer or Chief Financial Officer to the effect that they have been prepared in accordance with GAAP (subject, as to interim statements, to lack of footnotes and year-end adjustments).
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- Borrower Quarterly Unaudited Financial Statements. As soon as practicable (and in no event later than 45 days) after the end of each of the first three Fiscal Quarters of each Fiscal Year (commencing with the first Fiscal Quarter in 2026), quarterly financial statements of the Borrower (unless the Borrower's financial statements are included as part of a consolidating schedule of MCC's financial statements delivered pursuant to Section 7.2(c) (MCC Quarterly Unaudited Financial Statements) above), as of the end of such Fiscal Quarter, including balance sheet and related statements of income and cash flows, certified by the Borrower's Chief Executive Officer or Chief Financial Officer to the effect that they have been prepared in accordance with GAAP (subject, as to interim statements, to lack of footnotes and year-end adjustments).
- AUP Reports. The Borrower and the Servicer shall cause the Independent Accountants to furnish to the Agent, on or before March 31 of each calendar year (commencing on March 31, 2026), a report relating to one or more Monthly Settlement Reports selected by the Agent, to the effect that the Independent Accountants have applied certain agreed-upon procedures (a copy of which procedures are attached hereto as Annex II (Agreed-Upon Procedures) to certain documents and records relating to the Pledged Collateral, and compared the information contained in the selected Monthly Settlement Reports (and all calculations therein) delivered during the period covered by such report with such documents and records and that no matters came to the attention of such Independent Accountants that caused them to believe that servicing was not conducted, or that Monthly Settlement Reports were not prepared, in compliance with the Transaction Documents, except for such exceptions as such accountants shall believe to be immaterial and such other exceptions as shall be set forth in such statement.
- Other Reports. The Borrower shall furnish (or cause to be furnished) to the Agent the following additional reports, notices and other information, at the times, and in the manner, specified below:
- Compliance Certificate. Contemporaneously with each delivery of annual or quarterly Financial Statements pursuant to Section 7.2 (Financial Statements) above, a certificate (each, a "Compliance Certificate") of an Authorized Officer of each of MCC and the Borrower in the form of Exhibit D (Form of Compliance Certificate) to this Agreement, with respect to compliance with the Financial Representations and the other matters set forth therein.
- Required Filings. Promptly after the filing thereof, copies of any regular, periodic or special reports or registration statements, proxy statements or financial statements that any MCC Entity has filed in respect of (or pertaining to, or otherwise affecting) the Borrower or the Pledged Collateral with the SEC.
- Additional Reports. Promptly following request therefor, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of MCC or any Subsidiary thereof (including the Borrower) by independent accountants in connection with the accounts or books of MCC or any Subsidiary thereof, or any audit of any of them as the Agent or any Lender (through the Agent) may from time to time reasonably request.
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- Certain AML Events. Immediate notice if any MCC Entity has actual knowledge that any MCC Entity, or any Affiliate of any MCC Entity, is listed on the OFAC Lists or (i) is convicted on, (ii) pleads nolo contendere to, (iii) is indicted on, or (iv) is arraigned and held over on charges involving money laundering or predicate crimes to money laundering.
- Notices. Each of the Borrower, the initial Servicer and any Replacement Servicer agrees to promptly notify the Agent and each Lender (and, in the case of Section 7.5(a) below, the Collection Account Bank) upon acquiring notice or knowledge of any of the following:
- the occurrence of any Default or Event of Default; or
- the filing or commencement of any action, suit, investigation or proceeding by or before any arbitrator or Governmental Authority against or affecting any MCC Entity that could reasonably be expected to be adversely determined, and, if so determined, could reasonably be expected to have a Material Adverse Effect; or
- any Material Adverse Change or any other material change or impairment relating to the Receivables, the MRP+ Program, any MCC Entity, the Sub-Servicer or any Transaction Document; or
- any Material Contract Violation; or
- (i) the occurrence of any ERISA Event that, either individually or together with any other ERISA Events, could reasonably be expected to have a Material Adverse Effect or (ii) any MCC Entity or ERISA Affiliate thereof becoming a "benefit plan investor" as defined in section 3(42) of ERISA; or
- any action or actions arising under any Receivables or MRP+ Program Document or in respect of any noncompliance by any MCC Entity with any Receivables or MRP+ Program Document, or any permit, approval, license or other authorization required under any of the foregoing that, if adversely determined, could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect; or
- any material change, except in accordance with GAAP, to the accounting or financial reporting practices of either (i) MCC and its consolidated Subsidiaries or (ii) the Borrower; or
- any other matter or development that has had, or could reasonably be expected to have, a Material Adverse Effect.
- Other Information. The Borrower shall furnish (or cause to be furnished) to the Agent, promptly, from time to time, such other information, documents, records or reports respecting the Receivables, the other Pledged Collateral, the MRP+ Program, the MRP+ Program Documents or the condition or operations, financial or otherwise, of the MCC Entities as the Agent may from time to time reasonably request.
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- Affirmative Covenants
The Borrower hereby covenants and agrees (and, solely as to itself, the Servicer hereby covenants and agrees), for the benefit of the Secured Parties, that, at all times from and after the Closing Date until the Final Settlement Date:
- Hedge Requirement. On or before January 31, 2026, the Borrower shall enter into, and maintain in effect, Hedging Transactions, such that, at all times, the aggregate notional amount thereof is in accordance with the Hedge Notional Amount Requirement. The Hedging Transactions may include interest rate caps, interest rate swaps or other instruments acceptable to the Agent (as determined in its sole and absolute discretion). In connection with each Advance, the Agent shall determine, in consultation with the Borrower and the Servicer, the terms of the Hedging Transactions that would be appropriate to comply with the foregoing part of this Section 8.1, based upon the then-current Facility Balance, the Scheduled Payments with respect to the Receivables and reasonable assumptions with respect to defaults and delinquencies; provided, however, that, the Borrower shall be solely responsible for assuring that it remains in compliance with this Section 8.1.
- Fiscal Years. The fiscal year of the Borrower shall end on December 31.
- Compliance with MRP+ Program Documents. The Borrower and the Servicer shall comply, in all respects, with the terms of the MRP+ Program Documents.
- Performance and Compliance with Receivables. At its expense, each of the Borrower and the Servicer shall (and the Borrower shall require the Seller, pursuant to the Purchase Agreement, to) timely and fully perform and comply, in all material respects, with all provisions, covenants and other promises required to be observed by it under the Medallion Loan Agreement with respect to each Receivable, the Sub-Servicing Agreement and the other Transaction Documents (and all payments which have been allocated to the repayment of principal of or interest on the Receivables shall be applied as required by the applicable Medallion Loan Agreements or as otherwise required by Applicable Law) to which the Borrower, the Seller or the Servicer is a party.
- Preservation of Existence, Etc. The Borrower (covenanting solely as to itself) and the Servicer shall:
- preserve, renew and maintain in full force and effect its legal existence and good standing under the laws of the jurisdiction of its organization;
- take all reasonable action to maintain all rights, licenses, permits, privileges and franchises necessary or desirable in the normal conduct of its business, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect; and
- preserve or renew all of its registered patents, trademarks, trade names and service marks, the non-preservation of which could reasonably be expected to have a Material Adverse Effect.
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- Maintenance of Properties. The Borrower (covenanting solely as to itself) and the Servicer shall (a) maintain, preserve and protect all of its properties and equipment necessary in the operation of its business in good working order and condition (ordinary wear and tear excepted) and (b) make all necessary repairs thereto and renewals and replacements thereof, except (in the case of the foregoing clauses (a) and (b)) to the extent that the failure to do so could not reasonably be expected to have a Material Adverse Effect.
- Payment of Obligations. The Borrower (covenanting solely as to itself) and the Servicer shall pay, discharge or otherwise satisfy as the same shall become due and payable, all of its obligations and liabilities, including Tax liabilities, unless the same are being contested in good faith by appropriate proceedings diligently conducted and adequate reserves in accordance with GAAP are being maintained by such MCC Entity, except to the extent that the failure to do so could not reasonably be expected to have a Material Adverse Effect.
- Audits and Inspection.
- Semi-Annual Compliance Reviews. Each of the Borrower (covenanting solely as to itself) and the Servicer shall permit (and the Borrower and the Servicer shall cause the Sub-Servicer to permit, in accordance with the Sub-Servicing Agreement) any representative that the Agent or any Lender authorizes, including its attorneys and accountants (any of the foregoing, "Representatives"), upon not less than two Business Days' notice, to conduct compliance reviews, which may include third party services, to inspect the Pledged Collateral, to examine and make copies and abstracts of the books of account and records of such MCC Entities (including any as may be maintained by the Sub-Servicer), and to discuss its affairs, finances and accounts with directors, officers, and independent public accountants; provided, however, that, so long as no Event of Default shall have occurred and be continuing, such reviews and examinations shall be limited to no more often than twice per Fiscal Year; and provided, further, however, that, any such Representative shall be required to comply with the confidentiality provisions contained in Section 14.16 (Confidentiality) below.
- Participation in Meetings. In addition, the Agent and its Representatives shall have the right to participate, upon reasonable notification and (unless an Event of Default has occurred and is continuing) not more than twice per Fiscal Year, in any bank meeting, management meeting or on-site visit at any of the MCC Entities (and, upon the request of the Agent, shall provide to the Agent reasonable prior written notice of the next following meeting of such nature), provided that any such Representative shall be required to comply with the confidentiality provisions contained in Section 14.16 (Confidentiality) below.
- Expenses. The Borrower shall pay any reasonable and documented out-of-pocket fees and expenses incurred by the Agent and the Lenders in connection with any reviews, examinations and other activities conducted pursuant to this Section 8.8; provided, however, that, so long as no Event of Default shall have occurred and be continuing, such reimbursement shall be limited to USD 20,000, in the aggregate, during any Fiscal Year.
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- Further Assurances.
- Generally. The Borrower shall (and shall require the Seller, in accordance with the Purchase Agreement to):
- prepare, execute, deliver and file, upon the reasonable request of the Agent, any financing statements, security agreements, collateral assignments, notices, control agreements, certificates of title, stock certificates and accompanying stock powers or other documents as reasonably requested by the Agent to perfect or give the highest priority to the Borrower's or the Agent's Lien on, and the Borrower's title to, the Pledged Collateral;
- from time to time procure any instruments or documents as may be reasonably requested by the Agent, and take all further action that may be necessary, or that the Agent may reasonably request, to perfect and protect the Liens granted under this Agreement and the other Transaction Documents; and
- protect and defend the Borrower's title to the Pledged Collateral and the Agent's Lien thereon against all Persons claiming any interest adverse to the Borrower or the Agent.
- Authorization. The Borrower hereby authorizes the Agent (or its designee) to execute and deliver on behalf of such Borrower and to file such financing statements (including an indication that the financing statement covers "all assets or all personal property" of the Borrower in accordance with Section 9-504 of the UCC), collateral assignments, notices, control agreements, security agreements and other documents without the signature of such Borrower either in the Agent's name or in the name of the Agent as agent and attorney-in-fact for such Borrower.
- Collateral. The Borrower shall at all times keep the Pledged Collateral free and clear from any legal process or Liens whatsoever (other than Permitted Liens), and shall give the Agent prompt written notice of any legal process affecting the Pledged Collateral or any Liens thereon. The Borrower shall not enter into or suffer to exist or become effective any agreement that prohibits or limits the right or ability of the Borrower to create, incur, assume or suffer to exist any Lien upon any of its property or assets, whether now owned or hereafter acquired. The Borrower shall protect and defend its title to its assets from and against all Persons claiming any interest adverse to the Borrower, and the Borrower shall give the Agent prompt written notice of any legal process affecting the Borrower's material assets.
- Commercial Tort Claims. If the Borrower shall at any time hold or acquire a commercial tort claim in excess of USD 50,000, the Borrower shall promptly (and in any event within 30 days following any MCC Entity obtaining knowledge thereof) notify the Agent in a writing signed by the Borrower and containing a description thereof.
- Taxes. The Borrower shall pay when due all U.S. federal and other material Taxes, fees or other charges of any nature whatsoever (together with any related interest or penalties) now or hereafter imposed or assessed against the Borrower, DPA 1, the Agent, the Lenders or the Pledged
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- Collateral or upon the Borrower's ownership, possession, use, operation or disposition thereof or upon the Borrower's rents, receipts or earnings arising therefrom. The Borrower shall file, on or before the due date therefor, all personal property tax returns in respect of the Pledged Collateral. Notwithstanding the foregoing, the Borrower may contest, in good faith and by appropriate proceedings, taxes for which the Borrower maintain adequate reserves therefor in accordance with GAAP (and the same shall not be deemed to constitute a violation of this Section 8.12 (Taxes) above).
- Ownership and Subsidiaries. At no time shall the Borrower (i) form any Subsidiaries or (ii) acquire Equity Interests in any other Person.
- Independent Managers.
- (i) The Borrower shall have, at all times, from the Closing Date until the Final Settlement Date, at least two Independent Managers, and (ii) the Agent shall be furnished with (A) up-to-date contact information for each such Independent Manager and (B) a copy of the agreement or agreements pursuant to which each such Independent Manager serves as an "Independent Manager" for the Borrower.
- The Borrower's Organizational Documents shall provide that (i) no Independent Manager of the Borrower may be removed or replaced without Cause, (ii) the Agent shall be given at least 30 days' prior written notice of the removal or replacement of any Independent Manager of the Borrower, together with (A) the name and contact information of the replacement Independent Manager and (B) evidence of the replacement's satisfaction of the definition of Independent Manager, and (iii) to the fullest extent permitted under Applicable Law, no Independent Manager of the Borrower shall have any fiduciary duty to anyone (including the holders of the Equity Interests in the Borrower and any Affiliates of the Borrower) except the Borrower and the creditors of the Borrower with respect to the taking of, or otherwise voting on, any action constituting an Insolvency Event with respect to the Borrower; provided, however, that, the foregoing shall not eliminate the implied contractual covenant of good faith and fair dealing.
- The Borrower shall not, without the consent of each of its Independent Managers, (i) institute, or consent to the institution of, any Insolvency Proceeding with respect to Borrower, or (ii) otherwise take, or consent to the taking, of any action that would constitute an Insolvency Event with respect to the Borrower.
- Use of Proceeds. The Borrower agrees that (a) the proceeds of the Facility shall be used solely (i) to pay related fees and expenses in connection with this Agreement and (ii) for working capital and general corporate purposes, including distribution to its direct and indirect parent companies for use thereby for such purposes, and (b) the proceeds of the Facility will not be used in violation of Anti-Corruption Laws or applicable Sanctions.
- Compliance with Laws.
- The Borrower shall maintain compliance in all material respects with all Applicable Law (including any law, rule or regulation with respect to the making or brokering of loans or financial accommodations), and shall, or cause its Subsidiaries to, obtain and maintain all required governmental
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- authorizations, approvals, licenses, franchises, permits or registrations reasonably necessary in connection with the conduct of its businesses and activities, except where the failure to maintain any foreign qualification in any State could not reasonably be expected to have a Material Adverse Effect.
- The Borrower shall not (i) directly or indirectly, knowingly enter into any documents, instruments, agreements or contracts with any Person listed on the OFAC Lists, (ii) conduct any business or engage in any transaction or dealing with any Blocked Person, including, without limitation, the making or receiving of any contribution of funds, goods or services to or for the benefit of any Blocked Person, (iii) deal in, or otherwise engage in any transaction relating to, any property or interests in property blocked pursuant to Executive Order No. 13224 or any similar executive order or other Anti-Terrorism Law, or (iv) engage in or conspire to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in Executive Order No. 13224 or other Anti-Terrorism Law.
- (i) The MCC Entities have implemented and maintain in effect policies and procedures designed to ensure compliance by the MCC Entities, their respective Affiliates and the directors, officers, employees and agents of the foregoing with Anti-Corruption Laws and applicable Sanctions, and (ii) the MCC Entities, and, to the knowledge of the MCC Entities, their respective officers and employees, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects.
- Neither any MCC Entity, nor any director, officer or employee thereof, is a Sanctioned Person. None of the Facility, use of proceeds or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.
- Risk Retention. Without limiting the generality of Section 8.16 (Compliance with Laws) above, if, for so long, and to the extent, that either or both of:
(a) the Credit Risk Retention rule (17 C.F.R. §§246.1-246.22), implementing Section 15G of the Exchange Act (the "U.S. Risk Retention Rule"); or
(b) Article 6 (Risk Retention) of Regulation (EU) No. 2017/2402 (Dec. 28, 2017) of the European Commission (the "EU Risk Retention Regulation," and, together with the U.S. Risk Retention Rule, the "Risk Retention Rules," and each, a "Risk Retention Rule")
applies to the Borrower, the Borrower shall comply, and cause MCC, as the "sponsor" of the Borrower or such transactions, within the meaning of such Risk Retention Rule or Risk Retention Rules (the "Risk Retention Sponsor"), to comply with all requirements imposed on the Risk Retention Sponsor under such Risk Retention Rule or Risk Retention Rules, including, without limitation, the certification and disclosure requirements, as applicable, set forth therein.
- Books and Records. Each of the Borrower and the Servicer shall maintain proper books of record and account, in which full, true and correct entries in conformity with GAAP consistently applied shall be made of all financial transactions and matters involving the assets and business of such MCC Entity.
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- Transactions with Affiliates or Other Related Persons. Other than entering into and performing its obligations under the Transaction Documents to which it is a party and consummating the transactions contemplated therein, the Borrower shall not, directly or indirectly, enter into or permit to exist any transaction of any kind between the Borrower, on the one hand, and any Affiliate of the Borrower or any Other Related Person with respect thereto, on the other hand, on terms that are less favorable to the Borrower or such Other Related Person, as the case may be, than those that might be obtained in an arm's length transaction from a Person who is not an Affiliate of the Borrower or such Other Related Person, as the case may be, with respect thereto.
- Negative Covenants
The Borrower hereby covenants and agrees (and, solely as to itself, the Servicer hereby covenants and agrees), for the benefit of the Secured Parties, that, at all times from and after the Closing Date until the Final Settlement Date:
- Certain Liens, Transfers and Indebtedness.
- Borrower Assets. None of the Borrower, the initial Servicer or any Replacement Servicer shall, except as expressly contemplated under this Agreement, create, incur, assume or suffer to exist any Lien (other than Permitted Liens), on or over, or otherwise Transfer, or purport to Transfer, in any manner, (i) any Pledged Collateral or (ii) any other property, assets or revenues, whether now owned or hereafter acquired, of the Borrower (it being understood that the foregoing shall not prevent the Borrower from effecting the Transfer of any amounts released to the Borrower pursuant to clause Ninth of Section 10.2 (Priority of Payments) below).
- Change of Control. Neither the Borrower (covenanting solely as to itself) nor the initial Servicer shall enter into any transaction or agreement that would result in a Change of Control.
- Member Indebtedness. Neither the initial Servicer nor any Subsidiary thereof (other than the Borrower, which shall be bound by, inter alia, Section 9.1(a) (Borrower Assets) above and Section 9.6(g) (Other Indebtedness) below) shall create, incur, assume or suffer to exist any Lien on or over property, assets or revenues, whether now owned or hereafter acquired, of the initial Servicer or any such Subsidiary consisting of loans covered by the MRP+ Program, or incur any Indebtedness that is secured or otherwise backed (directly or indirectly) by any such loans, unless, in each case, the initial Servicer shall have first (x) obtained the prior written consent of the Agent (such consent not to be unreasonably withheld) and (y) entered into an intercreditor agreement with the Agent in form and substance reasonably satisfactory to the Agent and the initial Servicer.
- Investments. The Borrower shall not, directly or indirectly, acquire, own or make any Investment other than the Receivables, the Medallion Collateral, the Other Transferred Property with respect to the Receivables and Eligible Investments.
- ERISA. None of the Borrower, the initial Servicer or any ERISA Affiliate shall permit to occur any ERISA Event that could reasonably be expected to have a Material Adverse Effect.
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- Corporate Changes.
- The Borrower shall not (and shall require the Seller, pursuant to the Purchase Agreement, not to) change its corporate name, legal form or jurisdiction of formation without 25 days' prior written notice to the Agent.
- The Borrower shall not (and shall require the Seller, pursuant to the Purchase Agreement, not to) relocate its chief executive office or its principal place of business unless (i) it provides written notice to the Agent as promptly as is reasonably practicable thereafter and (ii) such relocation shall be within the continental United States.
- The Borrower shall not relocate any item of Pledged Collateral unless (i) it provides written notice as promptly as is reasonably practicable thereafter to the Agent, (ii) if immediately prior to relocation the Pledged Collateral is in the United States, such relocation is within the continental United States, and (iii) if such relocation is to a third-party bailee, and such Pledged Collateral has a value, individually or in the aggregate, in excess of USD 250,000, it has delivered a bailee agreement in form and substance reasonably acceptable to the Agent.
- Conduct of Business. The Borrower shall not engage in any businesses or activities other than as expressly contemplated under the Transaction Documents.
- Special-Purpose Entity. The Borrower shall not do (nor has it taken any such action in the past), any of the following:
- Other Activities. Engage in any business or activity other than as contemplated by the Transaction Documents or the Borrower LLC Agreement.
- Other Assets. Acquire or own any assets other than its rights in, to or under (i) the Receivables, (ii) the Medallion Collateral, (iii) the Other Transferred Property with respect to the Receivables, (iv) Eligible Investments, (v) the Transaction Documents, (vi) the Accounts, and (vii) the other property and assets expressly contemplated under the Transaction Documents.
- Merger, Etc. (i) Merge into or consolidate with any Person, (ii) dissolve, terminate or liquidate, in whole or in part, (iii) transfer or otherwise dispose of all or substantially all of its assets or (iv) change its legal structure.
- Existence; Organizational Documents. (i) Fail to preserve its existence as an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization or formation, (ii) amend, modify or terminate (in each of the foregoing cases in this clause (ii), after the Closing Date), or fail to comply with any provision of its Organizational Documents or (iii) fail to observe entity formalities.
- Subsidiaries, Etc. (i) Acquire or own any Subsidiary or (ii) make any Investment in any Person (other than the Receivables, the Medallion Collateral, the Other Transferred Property with respect to the Receivables and Eligible Investments).
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- Commingling of Assets. Commingle its assets with the assets of any of its Affiliates, or of any other Person (it being understood that an inadvertent commingling of Collections that is timely remedied in accordance with Section 11.8 (Deposits to Accounts) below shall not be deemed to violate this Section 9.6(f)).
- Other Indebtedness. Incur any debt, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than its Indebtedness to the Secured Parties under this Agreement and the other Transaction Documents.
- Separate Books and Records. After the Closing Date, fail to maintain its records, books of account and bank accounts separate and apart from those of any other Person.
- Dealings With Affiliates. Enter into any contract or agreement with any of its principals or Affiliates, except on terms and conditions that are substantially similar to those that would be available on an arm's-length basis with third parties other than its Affiliates (other than entry into the Transaction Documents and except as otherwise expressly permitted or provided for in the Transaction Documents).
- Dissolution. Seek its dissolution or winding up in whole or in part.
- Separate Identity. Fail to correct any known misunderstandings regarding its separate identity from any principal or Affiliate thereof or any other Person.
- Guarantees. Except as otherwise expressly permitted or provided for in the Transaction Documents, guarantee, become obligated for, or hold itself out to be responsible for the debt of another Person.
- Loans, Etc. Make any loan or advances to any third party, including any principal or Affiliate, or hold evidence of Indebtedness issued by any other Person (except for Receivables or as otherwise expressly permitted or provided for in the Transaction Documents).
- Appearance of Liability. Fail either to hold itself out to the public as a legal entity separate and distinct from any other Person, or to conduct its business solely in its own name.
- Inadequate Capital. After the Closing Date, fail to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations; provided, however, that, the foregoing shall not require any direct or indirect members of Borrower to make any capital contributions to the Borrower.
- Appearance of Separateness. Hold itself out as or be considered as a department or division of (i) any of its principals or Affiliates, (ii) any Affiliate of a principal or (iii) any other Person.
- Separate Financial Statements. After the Closing Date, fail to maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person, or have its assets listed on the financial statement of any other Person (except under financial statement consolidation principles in accordance with GAAP).
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- Payment of Liabilities. Fail to pay its own liabilities and expenses only out of its own funds; provided, however, that, the foregoing part of this Section 9.6(r) shall not require any direct or indirect members of Borrower to make any additional contributions of capital to the Borrower.
- Payment of Salaries. Fail to pay the salaries of its own employees, if any, in light of its contemplated business operations; provided, however, that, the foregoing part of this Section 9.6(s) shall not require any direct or indirect members of Borrower to make any additional contributions of capital to the Borrower.
- Investment in Affiliates. Acquire the obligations or securities of its Affiliates or Equity Interest holders (except as otherwise permitted or provided for in the Transaction Documents).
- Allocation of Expenses. Fail to allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including paying for office space, if any, and services performed for it by any employee of an Affiliate.
- Hypothecation. Pledge its assets for the benefit of any other Person, other than with respect to payment of the Secured Obligations hereunder.
- Independent Manager. Fail, in any respect, to comply with the requirements of Section 8.14 (Independent Managers) above.
- Tax Status. The Borrower has not elected and will not elect to be treated as an association taxable as a corporation for U.S. federal income tax purposes.
- Accounts and Payments
- Accounts.
- Collection Account. The Borrower has established, and shall maintain, at all times, the Collection Account at the Collection Account Bank (into which all Collections shall be deposited, in accordance with the terms of Article 11 (Servicing) below). The Collection Account shall be a segregated trust account. The Agent shall have sole dominion and control over the Collection Account (subject only to Section 10.1(e) (Eligible Investments) below, and Section 4(n)(vi) of the Collection Account Control Agreement, with regard to the investment of amounts in the Collection Account), and neither any MCC Entity nor any other Person shall have any right of withdrawal with respect to any Collection Account. Funds on deposit, from time to time, in the Collection Account may be invested as set forth in Section 10.1(e) (Eligible Investments) below.
- Lockbox Account. The Borrower has established, and shall maintain, at all times, the Lockbox Account at the Lockbox Account Bank (into which the Obligors shall be directed to remit all amounts paid in respect of the Receivables from time to time). The Lockbox Account shall be a deposit account. Funds on deposit from time to time in the Lockbox Account shall be deposited solely into the Collection Account, in accordance with the terms of Article 11 (Servicing) below. At all times following the occurrence, and during the continuance, of an Event of Default, (A) the Agent shall have sole dominion
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- and control over the Lockbox Account, and (B) neither any MCC Entity nor any other Person shall have any right of withdrawal with respect to the Lockbox Account. Funds on deposit in the Lockbox Account shall be held uninvested.
- Taxes, Checks, Etc. The taxpayer identification number associated with each Account shall be that of the Borrower, and the Borrower (or MCC, as the first regarded owner of the Borrower for U.S. federal and State and local income Tax purposes) will report for federal, State and local income taxes, the income, if any, represented by each Collection Account. No checks shall be issued, printed or honored with respect to any Account. The Borrower shall cause the Account Control Agreements to be in effect at all times with respect to the Accounts.
- Authorization, Etc. Upon the occurrence, and during the continuance, of an Event of Default, the Agent shall have the right, in the Agent's sole discretion, to apply, and to direct the Account Banks to apply, all or any portion of any funds on deposit in the Accounts, on behalf of the Borrower, in accordance with the Priority of Payments, to repay any outstanding Secured Obligations, at such time, and in such manner, as the Agent shall determine in the Agent's sole discretion. The authorizations granted to the Agent pursuant to this Section 10.1(d) and elsewhere in this Section 10.1 shall in no way be deemed to constitute a waiver of, or otherwise modify, the Borrower's obligations under this Agreement or any other Transaction Document, including, without limitation, the obligation of the Borrower to make interest payments, principal payments or any other payments or prepayments as and when required under the Transaction Documents or the obligation to pay all Secured Obligations on the Maturity Date.
- Eligible Investments. Funds on deposit in the Collection Account may be invested in Eligible Investments, as provided in Section 4(n)(vi) of the Collection Account Control Agreement, at the written direction of (i) from and after the Facility Termination Date, or at any time following the occurrence, and during the continuance, of an Event of Default, the Agent, or (ii) at any other time, the Servicer, on behalf of the Borrower. If, and to the extent, that no such investment direction shall have been received by the Collection Account Bank, funds in the Collection Account shall be held uninvested, as set forth in Section 4(n)(vi) of the Collection Account Control Agreement. It is expressly understood and agreed, however, that none of the Collection Account Bank, the Agent, or any Lender shall be liable for any loss arising from any such Eligible Investments, or any failure, on the part of the Agent, to give investment instructions (without limiting, for the avoidance of doubt, the obligations of the Collection Account Bank, the Agent or any Lender on Eligible Investments as to which such Person is the issuer or obligor). Any such Eligible Investments shall mature so that such funds will be available for distribution under Article 10.2 (Priority of Payments) below on the Business Day immediately preceding the next Settlement Date. No Eligible Investment shall be sold or otherwise disposed of prior to its scheduled maturity unless a default occurs with respect to such Eligible Investment and, so long as no Event of Default has occurred and is continuing, the Borrower directs the Collection Account Bank in writing to dispose of such Eligible Investment. No such Eligible Investments shall be purchased at a premium.
- Priority of Payments. On each Settlement Date, the Agent shall instruct the Collection Account Bank to pay to the following Persons, from the Collection Account, to the extent of
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- Available Funds, the following amounts, in the following order of priority (it being understood that the Agent shall be entitled to rely upon the related Monthly Settlement Report for such purposes):
First: pro rata, based upon the respective amounts payable, to each Account Bank and to the Custodian, the fees of such Persons and the expenses and indemnities or other amounts payable to the Collection Account Bank and the Custodian, in such capacity, pursuant to the Transaction Documents; provided that prior to the occurrence and during the continuance of an Event of Default, such expenses and indemnities or other amounts paid to the Collection Account Bank and the Custodian may not exceed USD 100,000 per calendar year; and provided, further that such limitation on such expenses and indemnities or other amounts shall not apply after the occurrence and during the continuance of an Event of Default;
Second: to the Hedge Provider, all scheduled amounts then due and payable under the Hedge Agreement;
Third: to the Servicer, the amount of the Servicer Fee accrued and payable with respect to such Settlement Date, including any unpaid Servicer Fee with respect to any prior Settlement Date;
Fourth: pro rata, based upon the respective amounts payable:
(a) to each Lender, the Accrued Interest allocable to its Advances, and any other amounts, then due and payable to such Lender pursuant to Section 2.3 (Interest) above; and
(b) to the Agent and the Lenders:
(i) the amount of any Facility Fees then due and payable; plus
(ii) the amount of any other costs, fees, expenses, indemnities or other amounts then due and payable to the Agent or any Lender under the Transaction Documents;
Fifth: if a Borrowing Base Deficiency existed as of the last day of the related Remittance Period, to the Lenders (pro rata, based upon their respective Lender Percentages) an amount equal to the Borrowing Base Deficiency Amount, to be applied in reduction of the Facility Balance;
Sixth: if such Settlement Date occurs during the Amortization Period, to the Lenders (pro rata, based upon their respective Lender Percentages), all Available Funds remaining after the payment of the amounts set forth in clauses First through Fifth above, to be applied in reduction of the Facility Balance, until the Facility Balance has been reduced to zero;
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Seventh: pro rata, based upon the respective amounts payable:
(a) to each Account Bank, and to the Custodian, any costs, expenses and indemnities (and any other amounts not paid under clause First above) that are owed to it by the Borrower pursuant to the Transaction Documents; and
(b) to the Hedge Provider, any amounts then due and payable under the Hedge Agreement that were not paid under clause Second above;
Eighth: to the Servicer, any amounts that are owed to it, in such capacity, under the Transaction Documents that were not paid under clause Third above; and
Ninth: any remaining Available Funds, to be remitted at the written direction of the Servicer, on behalf of the Borrower (which amounts may be distributed to DPA 1, as holder of the Borrower's Equity Interests, free and clear of the Liens granted under this Agreement).
- Servicing
- Appointment and Designation of the Servicer.
- Initial Servicer. The Borrower hereby appoints DPA 1 as Servicer, pursuant to the terms of this Article 11 and the other provisions of this Agreement, with the authority to service, administer and exercise rights and remedies, on behalf of the Borrower, in respect of the Pledged Collateral. DPA 1 hereby accepts such appointment and agrees to perform the duties and responsibilities of the Servicer pursuant to the terms of this Article 11 and the other provisions of this Agreement, for the benefit of the Borrower and the Secured Parties.
- Delegation. The Servicer may subcontract with the Sub-Servicer, pursuant to the Sub-Servicing Agreement, for servicing, administering or collecting the Pledged Collateral; provided that (i) the Servicer shall be solely responsible for the fees and expenses payable to the Sub-Servicer, (ii) the Servicer shall not be relieved of, and shall remain liable for, the performance of the duties and obligations of the Servicer pursuant to the terms hereof without regard to the Sub-Servicing Agreement and (iii) the Sub-Servicing Agreement shall be terminable, or assignable to for the direct benefit of the Borrower and the Agent, upon the occurrence, and during the continuance, of a Servicer Default. The Servicer shall be responsible (as a primary obligor, and not as surety) for each of the obligations of the Sub-Servicer under, or in connection with, the Sub-Servicing Agreement. The Servicer shall not permit the Sub-Servicing Agreement to be amended, otherwise modified or terminated, or the Sub-Servicer to be terminated, without the prior written consent of the Agent. Except as otherwise expressly provided in the foregoing part of this Section 11.1(b), the Servicer may not assign, delegate, novate or otherwise transfer any of its rights or obligations under this Agreement.
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- Duties of the Servicer.
- Accepted Servicing Practices. The Servicer, for the benefit of the Borrower and the Agent, shall manage, service, administer and make collections on the Receivables and enforce the Borrower's rights with respect to the collateral thereunder and any credit enhancement therefor in accordance with all Applicable Law, the Medallion Loan Agreements and the MRP+ Program Documents and diligently using a degree of skill and care which the Servicer (and the Sub-Servicer) would exercise in connection with the servicing and administration of assets similar to the Receivables under similar circumstances and in accordance with their existing practices and procedures relating to assets of the same nature and character as the Receivables (such standards, the "Accepted Servicing Practices").
- Duties. The Servicer's duties shall include collection and posting of all payments, responding to inquiries of Obligors on Receivables, investigating delinquencies, sending invoices to Obligors, as appropriate, reporting tax information, if any, to Obligors, preparing and delivering Receivable Files to the Custodian, accounting for Collections and furnishing statements and reports to the Agent in accordance with this Agreement and the other Transaction Documents. Except to the extent otherwise required pursuant to this Agreement, the Servicer shall follow the Accepted Servicing Practices in performing its duties as Servicer. To the extent consistent with the Accepted Servicing Practices and the following sentence, the Servicer shall have full power and authority, acting alone, to do any and all things in connection with management, servicing, administration and collection that it may deem necessary or desirable, including, without limitation, executing and delivering on behalf of itself and the Borrower, any and all instruments of satisfaction or cancellation, or partial or full release or discharge, and all other comparable instruments, with respect to such Receivables or any Medallion securing such Receivables. The Servicer is authorized to release Liens on Medallions granted pursuant to a Receivable, (i) if the debt secured thereby has been fully paid and the proceeds of the repayment of such debt are deposited in the Collection Account in accordance with Section 11.8 (Deposits to Accounts) below, and/or (ii) to liquidate such Medallions in accordance with its customary standards, policies and procedures, Accepted Servicing Practices and the Credit and Collection Policy, in either respect subject to the Medallion Loan Agreements and the MRP+ Program Documents. If the Servicer shall commence a legal proceeding to enforce a Receivable, the Borrower shall thereupon be deemed to have automatically assigned, solely for the purpose of collection, such Receivable to the Servicer. If in any enforcement suit or legal proceeding it shall be held that the Servicer may not enforce a Receivable on the ground that it shall not be a real party in interest or a holder entitled to enforce such Receivable, the Borrower shall, at the Servicer's expense and direction, take steps to enforce such Receivable, including bringing suit in the name of the Borrower. The Borrower shall, upon the written request of the Servicer, furnish the Servicer with any powers of attorney and other documents reasonably necessary or appropriate to enable the Servicer to carry out its servicing and administrative duties hereunder. Notwithstanding anything to the contrary contained herein, from and after the occurrence and during the continuance of an Event of Default, the Agent shall have the absolute and unlimited right to direct the Servicer to commence or settle any legal action with respect to any Receivable or Medallion or to foreclose upon or repossess any Medallion Collateral, subject in all respects to the Medallion Loan Agreement and the MRP+ Program Documents.
- Regulatory Actions, Etc. It shall be the Servicer's duty and responsibility to direct the Borrower to respond to, defend, participate in or otherwise act in connection with any regulatory, administrative, governmental, investigative or other proceeding or inquiry relating in any way to the
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- Borrower, its assets or the conduct of its business, and the Borrower hereby agrees to follow such direction, subject to any requirements or restrictions applicable to the Borrower under the Transaction Documents and Applicable Law.
- Collections and Modifications.
- Collections. Consistent with Accepted Servicing Practices, the Credit and Collection Policy and the standards, policies and procedures required by the Transaction Documents, the Servicer shall make reasonable efforts to collect all payments called for under the terms and provisions of the Receivables as and when the same shall become due, and shall follow such collection procedures as it follows with respect to comparable medallion loans that it or any of its Affiliates services for itself or others and otherwise act with respect to the Receivables, in such manner as will, in the reasonable judgment of the Servicer, maximize the amount to be received by the Agent for the benefit of the Secured Parties with respect thereto. The Servicer is authorized in its discretion to waive any prepayment charge, late payment charge or any other similar fees that may be collected in the ordinary course of servicing any Receivable. The Servicer shall allocate Collections relating to principal and interest in accordance with the terms of the related Receivables.
- Modifications. The Receivables and related Medallion Loan Agreements shall not be extended, waived, amended or modified, in any material respect, except with the prior written consent of the Agent (which consent may be granted or withheld in its sole and absolute discretion); provided, however, that, any such approved extension, waiver, amendment or modification will not alter its status as a Defaulted Receivable or a Delinquent Receivable or its characterization as an Eligible Receivable.
- Realization upon Receivables.
- Default. The Servicer shall enforce compliance with the terms of the Receivables in a manner consistent with the Accepted Servicing Practices. The Servicer shall include in any Report on any Report Date, as applicable, any payment default under a Receivable (a "Medallion Loan Default"), which Report shall include actions the Servicer proposes to take with respect to such Medallion Loan Default, including, without limitation, (i) initiation or continuation of negotiations with the Obligor, (ii) acceleration of such Receivable, (iii) repossession of the Medallion related to such Receivable, (iv) initiation of litigation or collection proceedings, and (v) such other action as the Servicer may deem appropriate in conformity with the Accepted Servicing Practices. For avoidance of doubt, the Servicer and the Sub-Servicer shall, and are authorized to, comply with the MRP+ Program Documents with respect to any Medallion Loan Default.
- Liquidation, Etc. Consistent with the standards, policies and procedures required by this Agreement, the Medallion Loan Agreement, the MRP + Program Documents and the Credit and Collection Policy, the Servicer shall use commercially reasonable efforts to liquidate any Medallion securing a Receivable held by the Borrower with respect to which the Servicer has determined that payments thereunder are not likely to be resumed, as soon as practicable after default on such Receivable but in no event later than the date on which any regularly scheduled payment has become more than 360 days delinquent; provided, however, that, the Servicer may elect not to liquidate a Medallion within such time period if no Servicer Default has occurred and in its good faith judgment it determines that the proceeds ultimately recoverable with respect to such Receivable (after giving effect to expenses associated with
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- such liquidation and reimbursement to the Servicer hereunder) would be increased by forbearance; and provided, further, that the Servicer shall not be required to liquidate a Medallion if prohibited by law or the MRP+ Program Documents. The Servicer is authorized to follow such customary practices and procedures as it shall deem necessary or advisable, consistent with the Accepted Servicing Practices, which practices and procedures may include the sale of the related Medallion at a public or private sale, and other actions by the Servicer in order to realize upon a Receivable.
- Maintenance of Security Interests.
- Security Interests. The Servicer shall take such steps as are necessary to maintain perfection of the first priority security interest created by the Transaction Documents. The Servicer agrees to mark its master computer databases and computer files (by way of the creation of a special field or otherwise), in a manner acceptable to the Agent, to evidence the interests granted to the Agent for the benefit of the Secured Parties under the Loan Agreement and the other Transaction Documents. At any time and from time to time, the Servicer shall, or shall direct the Borrower to, and the Borrower will promptly and duly execute and deliver, or will promptly use commercially reasonable efforts to cause to be executed and delivered, such further instruments and documents and take such further actions as are necessary (or as are reasonably requested by the Agent) for the purpose of filing any financing or continuation statements under the UCC in effect in any jurisdiction with respect to the Liens created by the Loan Agreement or taking any other action necessary to preserve the status of the Agent's Liens on the Collateral as first priority perfected Liens and, following the occurrence and during the continuance of an Event of Default, for the purpose of obtaining or preserving the full benefits of the Secured Parties under this Agreement and the other Transaction Documents and of its rights and powers therein granted.
- Perfection. Consistent with Accepted Servicing Practices, the Credit and Collection Policy and the policies and procedures required by this Agreement, the Servicer shall take such steps on behalf of the Borrower and the Agent as are necessary to maintain perfection of the first priority security interest created by each Receivable in the related Medallion, including the recording, registering, filing, re-recording, re-filing and re-registering of all security agreements, financing statements and continuation statements as are necessary to maintain the security interest under the respective Receivables. The Borrower hereby authorizes the Servicer, and the Servicer agrees, to take any and all steps necessary to re-perfect such security interest in the name of Borrower as necessary because of any reason. The Servicer shall prepare each Borrowing Base Certificate, Borrowing Request, Receivables Schedule and Monthly Settlement Report, on behalf of the Borrower.
- Medallions.
- Enforcement of Prohibition on Transfer of Medallions. The Servicer will, to the extent it has knowledge of any sale or Lien, or prospective sale or Lien, by the Obligor under any Receivable of the related Medallion (whether by sale or by contract of sale, and whether or not the Obligor remains or is to remain liable under the Receivable), exercise remedies in accordance with Accepted Servicing Practices and in all cases, solely as and to the extent permitted by Applicable Law, the related Medallion Loan Agreement and the MRP+ Program Documents.
- Conservation and Disposition of Medallions. In the event that any Medallion is liquidated by the Servicer and acquired by the Borrower as a result of a credit bid or retention of Collateral,
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- the Servicer shall conserve and protect each such Medallion for the Agent for the benefit of the Secured Parties. The disposition of any such Medallion shall be carried out by the Servicer at such price and upon such terms and conditions as the Servicer shall determine in accordance with the Accepted Servicing Practices and the MRP+ Program Documents. The Servicer shall deposit the proceeds of any such disposition into the Collection Account no later than 11:00 a.m. on the second Business Day following receipt thereof by the Servicer as cleared funds (or in the case of a successor Servicer, on the second Business Day following receipt). Pending such deposit, such funds shall be held in trust by the Servicer for the benefit of the Agent for the benefit of the Secured Parties.
- MRP+ Program. The Servicer, on behalf of the Borrower, shall take all actions necessary and sufficient to comply with, and exercise its rights and remedies under, the MRP+ Program with respect to the Receivables. Without limitation of the foregoing, if, at any time, the Borrower may be entitled to any MRP+ Program Recoveries, the Servicer shall, within two Business Days thereafter, submit any and all requisite documentation to the NYBDC, Pursuit SPE, the TLC or any other relevant Person, and take any and all other actions, as may be necessary and sufficient to receive such amounts.
- Deposits to Accounts. The Servicer shall instruct all Obligors to remit payments in respect of the Receivables directly to the Lockbox Account (or to a post-office box maintained by the Lockbox Account Bank exclusively for receipt of items to be deposited to the Lockbox Account). If, notwithstanding such instructions, the Servicer or any Affiliate thereof shall receive any Collections, the Servicer shall deposit such Collections to the Collection Account, no later than 11:00 a.m. on the second Business Day following receipt thereof by the Servicer as cleared funds. Pending such deposit, such funds shall be held in trust by the Servicer for the benefit of the Secured Parties. Funds on deposit in the Accounts on any day shall be held therein in trust for the benefit of the Secured Parties. The Servicer will use its commercially reasonable efforts not to permit funds other than Collections on the Receivables to be deposited into any Account. To the extent any funds other than Collections are deposited into the Collection Account, the Servicer shall promptly identify such funds and notify the Agent of the same and direct the Agent to direct the Collection Account Bank to remit such funds the Person entitled thereto. Any Collections that are cleared funds on deposit in the Lockbox Account on any Business Day in excess of USD 10,000 shall be swept on or prior to the following Business Day into the Collection Account.
- Servicer Fees and Expenses.
- Servicer Fee. The Borrower shall pay to the Servicer the Servicer Fee, as compensation for its activities hereunder, on each Settlement Date. The accrued and unpaid Servicer Fee shall be paid to the Servicer out of Available Funds in accordance with clause Third of the Priority of Payments set forth in Section 10.2 (Priority of Payments) above. In the event that Available Funds under the Priority of Payments are insufficient to pay such Servicer Fee in full, the Servicer shall have no claim against the Borrower for the amount of such deficiency unless and until there are Available Funds available to pay such Servicer Fee pursuant to, and subject to, the Priority of Payments.
- Servicer Expenses. The Servicer shall be required to pay all expenses incurred by it in connection with its activities hereunder, including fees and disbursements of independent accountants, taxes imposed on the Servicer and expenses incurred in connection with distributions and reports to the
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- Agent. Any reasonable and documented out-of-pocket expenses of the Servicer shall be reimbursed for such expenses solely to the extent of Available Funds applied under clause Eighth of the Priority of Payments set forth in Section 10.2 (Priority of Payments) above.
- Servicer Defaults. The occurrence, at any time, of any one or more of the following events shall be a "Servicer Default" (it being understood that a Servicer Default shall be deemed to be continuing unless and until such time as the same has been waived in writing by the Agent):
- Misrepresentation. Any representation or warranty made by the Servicer under any Transaction Document shall fail to have been true and correct in any material respect when made or repeated or deemed to have been made or repeated, and, if such failure is capable of being remedied, such failure continues unremedied for not less than 30 days after the earlier of (i) the date on which the Agent shall have given written notice of such failure to the Servicer and (ii) the date on which the Borrower or the Servicer shall have first become aware of such failure; or
- Breach of Agreement. The Servicer shall have breached, violated or defaulted in the performance of any obligation of the Servicer under any Transaction Document (other than any such obligation that is expressly addressed by another provision of this Section 11.10 (Servicer Defaults) above) and such breach, violation or default shall have remained continuing for not less than 30 days after the earlier of (i) the date on which the Agent shall have given written notice of such breach, violation or default to the Servicer, and (ii) the date on which the Borrower or the Servicer shall have first become aware of such breach, violation or default; or
- Failure to Pay or Remit. The Servicer shall have failed to make any payment, deposit or remittance, as and when required to be made by the Servicer, under any Transaction Document, which failure shall not have been remedied within two Business Days after the date on which such payment, deposit or remittance is due or required to be made; or
- Bankruptcy. An Insolvency Event shall have occurred with respect to the Servicer; or
- Material Adverse Change. A Material Adverse Change shall have occurred with respect to the Servicer.
- Termination, Replacement and Resignation of Servicer.
- Servicer Removal Notice. Upon the occurrence, and during the continuance, of a Servicer Default, the Agent may deliver a removal notice to the Servicer (a "Servicer Removal Notice") and terminate all of the rights, obligations, power and authority of the Servicer under this Agreement. On and after the receipt by the Servicer of a Servicer Removal Notice pursuant to this Section 11.11(a), the Servicer shall continue to perform all servicing functions under this Agreement until the date specified in the Servicer Removal Notice or otherwise specified by the Agent in writing (which may, for the avoidance of doubt, if the Agent so specifies, be conditioned on the of the appointment of a Replacement Servicer) or, if no such date is specified in the Servicer Removal Notice or otherwise specified by the Agent, until a date mutually agreed upon by the Servicer and the Agent and shall be entitled to receive the Servicer Fee theretofore accrued until such specified or agreed date. After such date, the Servicer agrees that it will terminate its activities as Servicer hereunder, and except as provided herein the Replacement Servicer
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- shall assume each and all of the Servicer's obligations to service and administer the Collateral, on the terms and subject to the conditions herein set forth, and the Servicer shall use its commercially reasonable efforts to assist the Replacement Servicer in assuming such obligations (which shall include, without limitation, the delivery to the Replacement Servicer of copies of all books, records and other relevant information relating to the Receivables, the Medallion Collateral, the MRP+ Program and the other Pledged Collateral).
- Appointment of Replacement Servicer. At any time following the delivery of a Servicer Removal Notice, the Agent may appoint the Sub-Servicer or another successor servicer reasonably acceptable to the Borrower (the "Replacement Servicer"), which appointment shall take effect upon the Replacement Servicer accepting such appointment by a written assumption in a form satisfactory to the Agent in its sole discretion. Upon the appointment of a Replacement Servicer, the initial Servicer shall have no liability with respect to any action performed by the Replacement Servicer on or after the date that the Replacement Servicer assumes the servicing duties of the Servicer. If a Replacement Servicer is acting as Servicer hereunder, it shall be subject to termination under this Section 11.11 at any time in the Agent's sole discretion (with or without cause).
- Survival. Notwithstanding other provision of this Agreement to the contrary:
- any obligations ascribed to the "initial Servicer" under this Agreement shall constitute obligations of DPA 1, in its individual capacity, and shall survive any termination of DPA 1, in its capacity as Servicer under this Agreement, or appointment of a Replacement Servicer; and
- the Servicer's indemnity obligations under Section 6.4 (Servicer Indemnity) above shall survive the removal and replacement of the Servicer as provided in Section 6.4(b) (Survival of Servicer Indemnities) above.
- Limitation on Resignation of the Servicer. The Servicer shall not resign from the obligations and duties hereby imposed on it except (i) by mutual agreement among the Servicer, the Borrower and the Agent or (ii) upon determination that its duties hereunder are no longer permissible under Applicable Law and the Agent does not elect to waive the obligations of the Servicer to perform the duties which render it legally unable to act or to delegate those duties to another Person assuming such obligations are waivable. Any determination under clause (ii) above permitting the resignation of the Servicer shall be evidenced by an opinion of counsel (which counsel shall be acceptable to the Agent) to such effect delivered to the Agent and the Borrower. No such resignation shall become effective until a successor Servicer shall have assumed the Servicer's responsibilities, duties, liabilities and obligations hereunder. Any such successor Servicer must be an established servicer of loans secured by taxi medallions and must be approved in writing by the Agent.
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- Early Amortization
- Early Amortization Events. The occurrence, at any time, of any one or more of the following events shall be an "Early Amortization Event":
- Regulatory Event. A Governmental Authority has directed that the activities of the Agent or any Lender, or any Affiliate of such Lender or the Agent, contemplated hereby be terminated (whether or not such direction has the force of law) or any other law, rule or regulation or other action by any Governmental Authority shall occur or be in effect that shall make it unlawful for any Lender or the Agent to enter into or perform or exercise any of their respective rights or obligations under this Agreement or any other Transaction Document or any Lender is required to place its interest hereunder into capital deduction (i.e., 1250% risk weight) for regulatory capital purposes; or
- Event of Default. The Agent delivers notice to the Borrower of its election to terminate the Revolving Period at any time following the occurrence, and during the continuance, of an Event of Default pursuant to Section 13.1 (Events of Default) below; or
- Servicer Default. The Agent delivers notice to the Borrower of its election to terminate the Revolving Period at any time following the occurrence, and during the continuance, of a Servicer Default pursuant to Section 11.10 (Servicer Defaults) above; or
- Delinquency and Reserve Event. With respect to any Remittance Period, both (i) the Delinquency Ratio exceeds 40.00% and (ii) the Reserve Fund Coverage Ratio is less than 90.00%; or
- Default Rate Event. With respect to any Remittance Period, the Annualized Default Rate exceeds 2.00%; or
- Excess Spread Failure. With respect to any Remittance Period, the Excess Spread is less than the Excess Spread Minimum; or
- Failure to Satisfy Hedge Requirement. There shall have occurred a breach of any provision of Section 8.1 (Hedge Requirement) above, and such breach continues unremedied for a period of at least 10 Business Days; or
- MRP+ Program Impairment. An event of the type described in Section 13.1(q) (MRP+ Program Impairment) below shall have occurred.
- Consequences of Early Amortization Event. If an Early Amortization Event occurs while the Revolving Period remains in effect, then, automatically, and without further action by any Party:
(a) (i) the Revolving Period End Date shall occur, (ii) the Revolving Period shall immediately terminate and (iii) the Amortization Period shall immediately commence; and
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(b) (i) the Facility shall terminate and (ii) the Lenders shall not be obligated to make any further Advances under Section 2.1 (Advances) above; and
(c) the Borrower shall cease to acquire Medallion Loans under the Purchase Agreement.
For the avoidance of doubt, for purposes of the other provisions of this Agreement (including, without limitation, Section 2.8(a) (Prepayments to Cure Facility Borrowing Base Deficiency) above), an Early Amortization Event shall be deemed to have occurred at any time after the occurrence of any of the events described in Section 12.1(a) through (h) above, whether such event occurs prior to, and after, the date on which the Revolving Period shall have ended pursuant to clause (a) of the definition of Revolving Period End Date in Section 1.1 (Definitions) above.
- Events of Default; Remedies
- Events of Default. The occurrence, at any time, of any one or more of the following events shall be an "Event of Default" (it being understood that an Event of Default shall be deemed to be continuing unless and until such time as the same has been waived in writing by the Agent):
- Bankruptcy. An Insolvency Event shall have occurred with respect to MCC or the Borrower; or
- Breach of Financial Covenant. Any of the Financial Representations set forth in Section 5.1 (Financial Condition) above shall fail to be true and correct at any time; or
- Misrepresentation. Any representation or warranty made by any MCC Entity under any Transaction Document shall fail to have been true and correct in any material respect when made or repeated or deemed to have been made or repeated, and, if such failure is capable of being remedied, such failure continues unremedied for not less than 30 days after the earlier of (i) the date on which the Agent shall have given written notice of such failure to the relevant MCC Entity and the Borrower and (ii) the date on which the relevant MCC Entity shall have first become aware of such failure; or
- Breach of Agreement. Any MCC Entity shall have breached, violated or defaulted in the performance of any Relevant Obligation (other than a Relevant Obligation that is expressly addressed by another provision of this Section 13.1) and such breach, violation or default shall have remained continuing for not less than 30 days after the earlier of (i) the date on which the Agent shall have given written notice of such breach, violation or default to the Borrower, and (ii) the date on which any MCC Entity shall have first become aware of such breach, violation or default; or
- Borrowing Base Deficiency. A Borrowing Base Deficiency shall have occurred and been continuing for at least two Business Days after the earlier of (i) the date on which the Agent shall have given written notice of such Borrowing Base Deficiency to the Borrower, and (ii) the date on which any MCC Entity shall have first become aware of such Borrowing Base Deficiency; or
- Failure to Pay or Remit. (i) The Borrower shall have failed to pay in full the outstanding principal of the Advances, together with all Accrued Interest, on the Maturity Date, or (ii) any MCC Entity
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- shall have failed to make any payment of interest, or any other payment or deposit required pursuant to any Relevant Obligation when the same becomes due and payable, which failure (in the case of this clause (ii)) shall not have been remedied within two Business Days after the first day on which any MCC Entity shall have become aware, or shall have received written notice, of such failure; or
- Cross-Default.
- Payment Default. Any MCC Entity shall have failed to pay any Indebtedness of such MCC Entity in an aggregate amount in excess of the applicable Threshold Amount when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), after taking into account any applicable grace or cure period with respect to such Indebtedness (except, solely in the case of the failure to pay any Indebtedness of MCC or DPA 1, to the extent the obligation to make such payment is being contested in good faith and adequate reserves with respect thereto are being maintained); or
- Other Default. Any default (other than a default of the type described in Section 13.1(g)(i) (Payment Default) above) or other event under any Indebtedness of any MCC Entity in an aggregate amount in excess of the applicable Threshold Amount shall have occurred, the effect of which default or other event is to cause, or to permit the holder or holders of such Indebtedness (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause, with the giving of notice if required, such Indebtedness to become due or to be repurchased, prepaid, defeased or redeemed (automatically or otherwise), in any case whether or not the applicable lender, agent or other applicable party shall accelerate the maturity of such Indebtedness or take any other action in connection with such failure or default; or
- Collateral Event. At any time, for any reason (other than a disposition or repurchase of Pledged Collateral that is expressly permitted under, and made in accordance with, the Transaction Documents, and for which any proceeds thereof have been timely received and deposited, in accordance with the Transaction Documents):
- the Agent shall fail to have a first-priority perfected security interest, free and clear of all Liens (other than Permitted Liens), in any portion of the Pledged Collateral; or
- the Borrower shall fail to have a first-priority perfected security interest, or a first-priority perfected ownership interest, as applicable, free and clear of all Liens (other than Permitted Liens), in any portion of the Pledged Collateral; or
- Hedge Default. Any Hedge Counterparty (other than DZ Bank or an Affiliate thereof) fails or ceases to be an Eligible Hedge Provider, an "Event of Default" or "Termination Event" (other than a Hedge Provider Event) occurs under any Hedge Agreement, or any Hedge Agreement ceases to be in full force and effect, and, in any such case, such Hedge Provider and/or Hedge Agreement, as the case may be, is not replaced, within 30 days thereafter, by an Eligible Hedge Provider (or a Hedge Agreement, in accordance with the terms of this Agreement, with an Eligible Hedge Provider, as the case may be), with
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- respect to all related Hedging Transactions, such replacement to be made pursuant to documentation in form and substance satisfactory to the Agent; or
- Qualification of Financial Statements. Any Financial Statements of MCC delivered pursuant to Section 7.2(a) (MCC Annual Audited Financial Statements) above, or any other audited financial statements of any MCC Entity or the Sub-Servicer, are subject to any Qualification; or
- Delinquency and Reserve Event. With respect to any Remittance Period, both (i) the Delinquency Ratio exceeds 42.00% and (ii) the Reserve Fund Coverage Ratio is less than 90.00%; or
- Default Rate Event. With respect to any Remittance Period, the Annualized Default Rate exceeds 4.00%; or
- Servicer Default. A Servicer Default shall have occurred and be continuing pursuant to Section 11.10 (Servicer Defaults) above; or
- Change of Control. A Change of Control shall have occurred; or
- Material Adverse Change. A Material Adverse Change shall have occurred; or
- Unpaid Obligations at Maturity. The Final Settlement Date shall not have occurred on or prior to the Maturity Date; or
- MRP+ Program Impairment. (i) The City of New York shall have failed to authorize funds as required to fully fund the MRP+ Program, (ii) any of the MRP+ Program Documents shall fail to be in full force and effect, and enforceable, in accordance with their terms, against the NYBDC, Pursuit SPE and the MEP Escrow Agent, (iii) the MEP Reserve Fund shall fail to be maintained and funded in accordance with the MRP+ Program Documents, (iv) the Borrower shall fail to be a "Lender" under the MRP+ Program Documents, entitled to the benefits of the Supplemental Loan Deficiency Guaranty, and the other benefits of the MRP+ Program, with respect to the Receivables, (v) the MRP+ Program, or the rights and benefits of the Borrower thereunder, in whole or in any material respect, shall be repudiated, declared invalid or challenged, by the TLC, any other applicable Governmental Authority, the NYBDC, Pursuit SPE or the MEP Escrow Agent, or (vi) any significant dispute, breach, violation, challenge, litigation or other development has arisen in respect of the MRP+ Program that (in the case of this clause (vi)) could reasonably be expected to have a Material Adverse Effect (any of the events described in the foregoing clauses (i) through (vi) of this Section 13.1(q), a "MRP+ Program Impairment"); or
- Amendment Without Consent. Any provision of any Transaction Document shall have been amended, waived or otherwise modified, in any respect, except with the prior written consent of the Agent (which consent may be granted or withheld in the sole and absolute discretion of the Agent) in accordance with the terms of such Transaction Document; or
- Assignment Without Consent. Any MCC Entity shall have made an assignment, or purported or attempted assignment, of any of its rights or obligations under any Transaction Document, other than with the prior written consent of the Agent (which consent may be granted or withheld in the sole and absolute discretion of the Agent); or
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- Attachments; Judgments. Any portion of the Borrower assets, or a material portion of any other MCC Entity's assets, is attached or seized, or a levy is filed against any such assets, or a judgment (or judgments) is (or are) entered for the payment of money (not covered by independent third‑party insurance or third‑party indemnity as to which liability has not been rejected by such insurance carrier or other third party), individually or in the aggregate, of at least the applicable Threshold Amount, and such judgment remains unsatisfied, unvacated or unstayed for a period of 30 days after the entry thereof; or
- Reporting Failure. Any MCC Entity shall fail to deliver, when due, any report, certificate, financial statement, notice or other document, as required under Article 7 (Reporting) above, which failure shall not have been remedied within five Business Days after the first day on which such MCC Entity shall have become aware, or shall have received written notice, of such failure; or
- Investment Company Act. Any MCC Entity (or the pool of Pledged Collateral) shall be required to register as an "investment company" within the meaning of Section 8 of the Investment Company Act; or
- ERISA Lien. The U.S. Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Code with regard to any assets of any MCC Entity and such lien shall not have been released within 15 Business Days, or the PBGC shall file notice of a lien pursuant to Section 4068 of ERISA with regard to any of the assets of any MCC Entity and such lien shall not have been released within 15 Business Days.
- Remedies.
- Acceleration, Etc. At any time following the occurrence, and during the continuance, of any one or more Events of Default, (i) the Agent may (and, at the direction of the Required Lenders, shall) accelerate and demand payment of all or any part of the Secured Obligations and declare them to be (whereupon, they shall become) immediately due and payable (provided, however, that, upon the occurrence of an Event of Default of the type described in Section 13.1(a) (Bankruptcy) above, all of the Secured Obligations shall automatically be accelerated and made due and payable, in each case without any further notice or act), (ii) the Agent may, at its option, sign and file in the Borrower's name any and all collateral assignments, notices, control agreements, security agreements and other documents it deems necessary or appropriate to perfect or protect the repayment of the Secured Obligations, and (iii) the Agent may notify any of the Borrower's account debtors to make payment directly to the Agent, compromise the amount of any such account on the Borrower's behalf and endorse the Agent's name without recourse on any such payment for deposit directly to the Agent's account. The Agent may (and, at the direction of the Required Lenders, shall) exercise all rights and remedies with respect to the Pledged Collateral under the Transaction Documents or otherwise available to it under the UCC and other Applicable Law, including the right to release, hold, sell, lease, liquidate, collect, realize upon, or otherwise dispose of all or any part of the Pledged Collateral and the right to occupy, utilize, process and commingle the Pledged Collateral. All the Agent's rights and remedies shall be cumulative and not exclusive.
- Collection; Foreclosure. Upon the occurrence, and during the continuance, of any Event of Default (and at any time following the Maturity Date, if the Final Settlement Date shall not have occurred), the Agent may (and, at the direction of the Required Lenders, shall), at any time, or from time to time, apply, collect, liquidate, sell in one or more sales, or otherwise dispose of, any or all of the Pledged
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- Collateral, in its then condition or following any commercially reasonable preparation or processing, in such order as the Agent may elect. Any such sale may be made either at public or private sale at its place of business or elsewhere. The Borrower agrees that any such public or private sale may occur upon 10 calendar days' prior written notice to the Borrower. The Agent may require the Borrower to assemble the Pledged Collateral and make it available to the Agent at a place designated by the Agent that is reasonably convenient to the Agent and the Borrower. The proceeds of any sale, disposition or other realization upon all or any part of the Pledged Collateral shall be applied by the Agent in accordance with the Priority of Payments. The Agent shall be deemed to have acted reasonably in the custody, preservation and disposition of any of the Pledged Collateral if it complies with this Section 13.2(b) and the obligations of a secured party under the UCC.
- No Waiver. The Agent shall be under no obligation to marshal any of the Pledged Collateral for the benefit of the Borrower or any other Person, and the Borrower expressly waives all rights, if any, to require the Agent to marshal any Pledged Collateral.
- Cumulative Remedies. The rights, powers and remedies of the Agent hereunder shall be in addition to all rights, powers and remedies given by statute or rule of law and are cumulative. The exercise of any one or more of the rights, powers and remedies provided herein shall not be construed as a waiver of or election of remedies with respect to any other rights, powers and remedies of the Agent.
- Power of Attorney.
- Appointment. The Borrower hereby constitutes and appoints the Agent (and all officers, employees or agents designated by the Agent) as its true and lawful attorney in fact (with full power of substitution) in its name, place and stead and at its expense, in connection with the enforcement (following the occurrence, and during the continuance, of any Event of Default), of the rights and remedies provided for in Section 13.2 (Remedies) above, the other provisions of this Agreement and the other Transaction Documents, and Applicable Law, including to (i) give any necessary receipts or acquittance for amounts collected or received hereunder, (ii) make all necessary transfers of the Pledged Collateral in connection with any sale or other disposition made pursuant hereto, (iii) execute and deliver for value all necessary or appropriate bills of sale, assignments and other instruments in connection with any such sale or other disposition, the Borrower thereby ratifying and confirming all that such attorney (or any substitute) shall lawfully do hereunder and pursuant hereto and (iv) sign any agreements, orders or other documents in connection with, or pursuant to, any Transaction Document. Nevertheless, if so requested by the Agent, directly or through a purchaser of any of the Pledged Collateral, the Borrower shall ratify and confirm any such sale or other disposition that is made in accordance with this Section 13.3(a) by executing and delivering to the Agent or such purchaser all proper bills of sale, assignments, releases and other instruments as may be reasonably designated in any such request. The power of attorney granted pursuant to this Section 13.3(a) shall be coupled with an interest.
- Delivery of Power of Attorney. On or prior to the Closing Date, the Borrower shall duly execute and deliver, to and in favor of the Agent, a power of attorney in the form attached as Exhibit G (Form of Borrower Power of Attorney) to this Agreement (the "Borrower Power of Attorney").
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- Miscellaneous
- Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under Applicable Law, but if any provision of this Agreement shall be prohibited by or invalid under such Applicable Law, such provision shall be ineffective only to the extent and duration of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement.
- Notices. Except as otherwise provided herein, any notice, demand, request, consent, approval, declaration, service of process or other communication (including the delivery of Financial Statements) that is required, contemplated, or permitted under the Transaction Documents or with respect to the subject matter hereof shall be in writing, and shall be deemed to have been validly served, given, delivered, and received upon receipt by the addressee if sent by U.S. mail, courier or overnight express delivery service and upon written acknowledgment of receipt by the addressee thereof if sent by facsimile or electronic mail, in each case addressed to the Party to be notified as follows:
| If to the Agent:<br><br>DZ Bank AG Deutsche Zentral-Genossenschaftsbank, Frankfurt Am Main, New York Branch<br><br>One Vanderbilt Ave.<br><br>New York, NY 10017<br><br>Attention: Structured Finance-Asset Securitization<br><br>Email: [***]<br><br>Telephone: [***] | If to the Borrower:<br><br>DePalma Financing SPV I LLC<br><br>c/o Marblegate Capital Corporation<br><br>5 Greenwich Office Park, Suite 400<br><br>Greenwich, CT 06831<br><br>Attention: [***]<br><br>Email: [***]<br><br>Facsimile: [***] |
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| If to Autobahn:<br><br>Autobahn Funding Company LLC<br><br>c/o DZ Bank AG Deutsche Zentral-Genossenschaftsbank, Frankfurt Am Main, New York Branch<br><br>One Vanderbilt Ave.<br><br>New York, NY 10017<br><br>Attention: Structured Finance-Asset Securitization<br><br>Email: [***]<br><br>Telephone: [***] | If to DPA 1 (in any capacity):<br><br>DePalma Acquisition I LLC<br><br>5 Greenwich Office Park, Suite 400<br><br>Greenwich, CT 06831<br><br>Attention: [***]<br><br>Email: [***]<br><br>Facsimile: [***]<br><br>If to MCC (in any capacity):<br><br>Marblegate Capital Corporation<br><br>5 Greenwich Office Park, Suite 400<br><br>Greenwich, CT 06831<br><br>Attention: [***]<br><br>Email: [***]<br><br>Facsimile: [***] |
| --- | --- |
or, in each case, to such other address as the applicable Party may designate for itself by like notice in writing to each other Party.
- Entire Agreement; Amendments.
- Entire Agreement. This Agreement and the other Transaction Documents constitute the entire agreement and understanding of the Parties in respect of the subject matter hereof and thereof, and supersede and replace in their entirety any prior proposals, term sheets, non-disclosure or confidentiality agreements, letters, negotiations or other documents or agreements, whether written or oral, with respect to the subject matter hereof or thereof.
- Amendments and Waivers. Neither this Agreement, any other Transaction Document, nor any terms hereof or thereof may be amended, supplemented or modified except in accordance with the provisions of this Section 14.3(b). The Required Lenders and the Borrower party to the relevant Transaction Document may, or, with the written consent of the Required Lenders, the Agent and the Borrower party to the relevant Transaction Document may, from time to time, (i) enter into written amendments, supplements or modifications hereto and to the other Transaction Documents for the purpose of adding any provisions to this Agreement or the other Transaction Documents or changing in any manner the rights of the Lenders or of the Borrower hereunder or thereunder or (ii) waive, or consent to, on such terms and conditions as the Required Lenders or the Agent, as the case may be, may specify in such instrument, any of the requirements of this Agreement or the other Transaction Documents (or any deviations therefrom, with respect to any waiver or consent) or any default or Event of Default and its consequences; provided, however, that, no such waiver and no such amendment, supplement or modification shall (A) forgive the principal amount or extend the Scheduled Maturity Date of the Facility, extend the scheduled date of any amortization payment in respect of the Facility, or reduce the stated rate of any interest or fee payable hereunder), in each case without the written consent of each Lender directly affected thereby, (B) eliminate or reduce the voting rights of any Lender under this Section 14.3(b) without the written consent of such Lender, (C) reduce any percentage specified in the definition of
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- Required Lenders, consent to the assignment or transfer by the Borrower of any of its rights and obligations under this Agreement and the other Transaction Documents, release all or substantially all of the Pledged Collateral or release the Borrower from its obligations under the Transaction Documents, in each case without the written consent of all Lenders, (D) amend Section 2.11 (Pro Rata Treatment) above without the consent of each Lender, (E) amend, modify or waive any provision of Section 14.22 (Agency) below without the written consent of the Agent or (F) adversely affect the rights, duties, indemnities or immunities of either the Collection Account Bank or the Custodian without the written consent of the Collection Account Bank or the Custodian, as applicable. Any such waiver or consent, and any such amendment, supplement or modification, shall apply equally to each Lender and shall be binding upon the Borrower, the Lenders, the Agent and all future holders of the Facility (or any portion thereof).
- No Strict Construction. The Parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties, and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any provisions of this Agreement.
- No Waiver. The powers conferred upon the Agent and the Lenders by this Agreement are solely to protect its rights hereunder and under the other Transaction Documents and its interest in the Pledged Collateral and shall not impose any duty upon the Agent or the Lenders to exercise any such powers. No omission or delay by the Agent or the Lenders at any time to enforce any right or remedy reserved to it, or to require performance of any of the terms, covenants or provisions hereof by the Borrower at any time designated, shall be a waiver of any such right or remedy to which the Agent or the Lenders are entitled, nor shall it in any way affect the right of the Agent or the Lenders to enforce such provisions thereafter.
- Survival. All agreements, representations and warranties contained in this Agreement and the other Transaction Documents or in any document delivered pursuant hereto or thereto shall be for the benefit of the Agent and the Lenders and shall survive the execution and delivery of this Agreement. Section 6.3 (Borrower Indemnity) above, and Sections 14.8 (Recourse Against Certain Parties), 14.9 (No Proceedings) and 14.19 (Revival of Secured Obligations) below, shall survive the termination of this Agreement.
- Binding Effect, Assignment, Etc.
- Binding Effect. This Agreement (i) shall be binding upon, and inure to the benefit of, each of the Parties, and their respective permitted successors and assigns, and (ii) shall create and constitute the continuing obligations of the parties hereto in accordance with its terms, and shall remain in full force and effect until its termination (and thereafter, to the extent provided in the second sentence of Section 14.6 (Survival) above).
- Assignment by MCC Entities. No MCC Entity may, without the prior written consent of the Agent, assign any of its rights and obligations under this Agreement, or under any other Transaction Document to which it is a party, or assign any interest herein or therein.
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- Assignment by Lenders and Agent. The Lenders and the Agent may, at any time, assign any or all of their respective rights and obligations hereunder or interest herein to any Person; provided that (unless such assignment is made either (x) pursuant to Section 14.7(d) (Assignments Between Conduit Lenders and Liquidity Providers) below or (y) at any time following the occurrence, and during the continuance, of an Event of Default) the Borrower has given its prior written consent to such assignment (which consent shall not be, except in the case of an assignment to a Competitor, unreasonably withheld, conditioned or delayed by the Borrower). At any time following the occurrence, and during the continuance, of an Event of Default, the Lenders and the Agent may assign any or all of their respective rights and obligations hereunder or interest herein to any Person, without the consent of the Borrower or any other Person; provided that, except during the continuance of an Event of Default described in Section 13.1(a) (Bankruptcy), (e) (Borrowing Base Deficiency) or (f) (Failure to Pay or Remit) above (a "Specified Event of Default"), no such assignment shall be made to a Competitor without the prior written consent of the Borrower. For the avoidance of doubt, the rights of the Borrower to give or withhold consent under this Section 14.7(c) shall not affect the rights of the Agent and the Lenders, with respect to the resignation and replacement of the Agent pursuant to Section 14.22(i) below.
- Assignments Between Conduit Lenders and Liquidity Providers. Notwithstanding anything to the contrary in Section 14.7(c) (Assignment by Lenders and Agent) above, or elsewhere in this Agreement, in any other Transaction Document or in any other agreement, arrangement or understanding between or among one or more of the Parties, and without the consent of the Borrower or any other Person:
- (A) any Conduit Lender (including, without limitation, Autobahn) may, in its sole and absolute discretion, and at any time, assign, in whole or in part, its rights, obligations and interests under this Agreement and the other Transaction Documents to any Liquidity Provider to such Conduit Lender (which, in the case of Autobahn, initially, is DZ Bank) and (B) at or after such time, and provided that the relevant Liquidity Provider (DZ Bank, initially, in the case of Autobahn) has assumed such assigned obligations, such Conduit Lender may, in its sole discretion, cease to be a Conduit Lender and a Lender under this Agreement upon providing notice of such cessation to the Servicer, on behalf of the Borrower; and
- if, at any time, DZ Bank (or any other Liquidity Provider to a Conduit Lender that has taken assignment from such Conduit Lender, as contemplated under Section 14.7(d)(i) above) has any rights, obligations or interests as a Lender hereunder, DZ Bank (or any such other Liquidity Provider) may, in its sole and absolute discretion, and at any time, assign, in whole or in part, its rights, obligations and interests under this Agreement and the other Transaction Documents, as Lender, to Autobahn (in the case of DZ Bank), or to the applicable Conduit Lender (in the case of any such other Liquidity Provider), whether or not, for the avoidance of doubt, Autobahn or such other assignee is then a Conduit Lender hereunder.
- Recourse Against Certain Parties.
- Notwithstanding anything to the contrary elsewhere in this Agreement, in any other Transaction Document or in any other agreement, arrangement or understanding between or among one
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- or more of the Parties, (i) no Conduit Lender shall have any obligation to pay any amount required to be paid by it hereunder in excess of any amount available to such Conduit Lender after paying or making provision for the payment of the Commercial Paper Notes issued by it, and (ii)(A) all payment obligations (if any) of a Conduit Lender under this Agreement are contingent upon the availability of funds in excess of the amounts necessary to pay the Commercial Paper Notes issued by it, and (B) each Party agrees that it shall not have a claim under Section 101(5) of the Bankruptcy Code, if, and to the extent, that any such payment obligation exceeds the amount available to such Conduit Lender to pay such amounts after paying or making provision for the payment of its Commercial Paper Notes.
- The provisions of this Section 14.8 shall survive the termination of this Agreement.
- No Proceedings.
- Notwithstanding anything to the contrary elsewhere in this Agreement, in any other Transaction Document or in any other agreement, arrangement or understanding between or among one or more of the Parties, each Party agrees that it shall not institute, or join any other Person in instituting, any Insolvency Proceeding against any Conduit Lender until one year and one day shall have elapsed since the later of (i) the last day on which any Commercial Paper Notes issued by such Conduit Lender remained outstanding and (ii) the Final Settlement Date.
- The provisions of this Section 14.9 shall survive the termination of this Agreement.
- Rule 17g-5 Information. Notwithstanding anything to the contrary elsewhere in this Agreement, in any other Transaction Document or in any other agreement, arrangement or understanding between or among one or more of the Parties, each Party acknowledges and agrees that the Agent may post to a Qualifying Rule 17g-5 Website maintained by the Agent (or any Affiliate thereof) and required by any nationally recognized rating agency providing a rating or proposing to provide a rating to a Conduit Lender's Commercial Paper Notes in connection with Rule 17g-5, the following information:
(a) (i) to the extent disclosed to any nationally recognized rating agency providing or proposing to provide a rating to, or monitoring a credit rating of, the Conduit Lender's Commercial Paper Notes, any confidential or proprietary information with respect to the MCC Entities and their Affiliates and each of their respective businesses obtained by the Agent or the Lenders in connection with the structuring, negotiation and execution of the transactions contemplated herein and in the other Transaction Documents; and
- any other nonpublic information with respect to any of the MCC Entities, and their Affiliates and businesses, received by the Agent or the Lenders,
in each case to the extent such information was provided to such nationally recognized rating agency in connection with providing or proposing to provide a rating to, or to monitor an existing rating of, such Conduit Lender's Commercial Paper Notes;
- the Transaction Documents; and
- any other Transaction Information.
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- Acknowledgement and Consent to Bail-In of EEA Financial Institutions.
- Acknowledgement and Consent. Notwithstanding anything to the contrary elsewhere in this Agreement, in any other Transaction Document or in any other agreement, arrangement or understanding between or among one or more of the Parties, each Party acknowledges that any liability of any EEA Financial Institution arising under this agreement, or under any such other agreement, arrangement or understanding, to the extent such liability is unsecured, may be subject to the write down and conversion powers of an EEA Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
- the application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an EEA Financial Institution; and
- the effects of any Bail-In Action on any such liability, including, if applicable:
- a reduction in full or in part or cancellation of any such liability;
- a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this agreement, or under any such other agreement, arrangement or understanding; or
- the variation of the terms of such liability in connection with the exercise of the write-down and conversion powers of any EEA Resolution Authority.
- Certain Definitions Relating to EU Bail-In. As used in this Section 14.11 and elsewhere in this Agreement:
"Bail-In Action" means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.
"Bail-In Legislation" means, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.
"EU Bail-In Legislation Schedule" means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor Person), as in effect from time to time.
"EEA Financial Institution" means:
- any credit institution or investment firm established in any EEA Member Country that is subject to the supervision of an EEA Resolution Authority;
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- any entity established in an EEA Member Country which is a parent of an institution described in paragraph (a) of this definition; or
- any financial institution established in an EEA Member Country which is (i) a subsidiary of an institution described in paragraph (a) or (b) of this definition and (ii) subject to consolidated supervision with its parent.
"EEA Member Country" means (a) any of the member states of the European Union, (b) Iceland, (c) the Principality of Liechtenstein and (d) the Kingdom of Norway.
"EEA Resolution Authority" means public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegatee) having responsibility for the resolution of any EEA Financial Institution.
"Write-Down and Conversion Powers" means, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.
- Governing Law. This Agreement and the other Transaction Documents have been negotiated and delivered to the Agent and the Lenders in the State of New York, and shall have been accepted by the Agent and the Lenders in the State of New York. Payment to the Agent and the Lenders by the Borrower of the Secured Obligations is due in the State of New York. THIS AGREEMENT AND THE OTHER Transaction Documents (OTHER THAN AS EXPRESSLY SET FORTH IN OTHER LOAN DOCUMENTS) SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, EXCLUDING CONFLICTS OF LAWS PRINCIPLES THAT WOULD CAUSE APPLICATION OF LAWS OF ANY OTHER JURISDICTION.
- Consent to Jurisdiction and Venue.
- The Borrower hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of any New York State court or Federal court of the United States sitting in New York City, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement or the other Transaction Documents, or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in such New York State or, to the extent permitted by law, in such Federal court. Each Party agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Agreement shall affect any right that the Agent or any Lender may otherwise have to bring any action or proceeding relating to this Agreement or the other Transaction Documents against the Borrower or its properties in the courts of any jurisdiction.
- The Borrower hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement or the other Transaction Documents in any New York State or Federal court. Each Party irrevocably waives, to the fullest extent
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- permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.
- Each Party irrevocably consents to service of process in the manner provided for notices in Section 14.2 (Notices) above. Nothing in this Agreement will affect the right of any Party to serve process in any other manner permitted by law.
- Mutual Waiver of Jury Trial / Judicial Reference.
- Because disputes arising in connection with complex financial transactions are most quickly and economically resolved by an experienced and expert Person and the Parties wish applicable State and federal laws to apply (rather than arbitration rules), the Parties desire that their disputes be resolved by a judge applying such applicable laws. Each Party hereby waives, to the fullest extent permitted by applicable law, any right it may have to a trial by jury in respect of any litigation directly or indirectly arising out of, under or in connection with this Agreement or any of the other Transaction Documents, including without limitation any cause of action, claim, cross-claim, counterclaim, third party claim or any other claim (collectively, "Claims") asserted by the Borrower against the Agent, the Lenders or their respective assignees or by the Agent, the Lenders or their respective assignees against the Borrower. Each Party (a) certifies that no representative, agent or attorney of any other party has represented, expressly or otherwise, that such other party would not, in the event of litigation, seek to enforce the foregoing waiver and (b) acknowledges that it and the other parties hereto have been induced to enter into this agreement and the other loan documents, as applicable, by, among other things, the mutual waivers and certifications in this Section 14.14.
- This waiver extends to all such Claims, including Claims that involve Persons other than the Agent, the Borrower and the Lenders; Claims that arise out of or are in any way connected to the relationship among the Borrower, the Agent and the Lenders; and any Claims for damages, breach of contract, tort, specific performance, or any equitable or legal relief of any kind, arising out of this Agreement or any other Transaction Document.
- Fees and Expenses.
- Closing. The Borrower shall pay the Agent's and the Lenders' reasonable and documented out-of-pocket fees and expenses (including reasonable out-of-pocket fees and expenses of counsel and any consultants) incurred in connection with the (i) negotiating, structuring, documenting and entering into the arrangements described herein and (ii) performing due diligence with respect to MCC Entities and their Affiliates, their respective businesses and assets, the Receivables, the MRP+ Program and any other matters relating to the Facility (all of the foregoing, "Closing Costs").
- Post-Closing. In addition, the Borrower shall pay any and all reasonable and documented out-of-pocket fees and expenses incurred by the Agent and the Lenders after the Closing Date (to the extent such fees and expenses are not Closing Costs covered by Section 14.15(a) (Closing) above) in connection with, or related to, (i) the Facility, (ii) the administration, collection, or enforcement of the Facility, (iii) the amendment or modification of the Transaction Documents; (iv) any waiver, consent,
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- release, or termination under the Transaction Documents; (v) the protection, preservation, audit, field exam, sale, lease, liquidation, or disposition of Pledged Collateral or the exercise of remedies with respect to the Pledged Collateral (including, without limitation, the costs and expenses of any reviews, examinations and other activities conducted pursuant to Section 8.8 (Audits and Inspection) above, subject to the limitations set forth in Section 8.8(c) (Expenses) above); and (vi) any bankruptcy, restructuring, reorganization, assignment for the benefit of creditors, workout, foreclosure, or other action related to the Borrower, the Pledged Collateral, the Transaction Documents, including representing the Agent or the Lenders in any adversary proceeding or contested matter commenced or continued by or on behalf of the Borrower's estate, and any appeal or review thereof.
- Confidentiality.
- Confidentiality Obligation. None of the Agent and the Lenders, on the one hand, nor the MCC Entities, on the other hand, shall publish or otherwise disclose any information relating to the pricing terms, or other material terms, of the Facility, or (in the case of the Agent and the Lenders) any confidential and proprietary information concerning the MCC Entities and their respective Affiliates and their businesses (collectively, "Confidential Information"), to any Person.
- Permitted Disclosures. Notwithstanding anything to the contrary in Section 14.16(a) (Confidentiality Obligation) above, each party may disclose the Confidential Information:
- to its Affiliates, Liquidity Providers, Liquidity Agents, and to its own (and their respective Affiliates', Liquidity Providers', Liquidity Agents') partners, agents, trustees, administrators, managers, service providers, directors, officers, employees, accountants, counsel and other professional advisors, equity owners and investors (it being understood that the Person to whom such disclosure is made will be informed of the confidential nature of such information and instructed to keep such information confidential, and have agreed to keep the Confidential Information confidential, or are bound by obligations of confidentiality to receiving party, which would restrict disclosure of Confidential Information in contravention of the provisions of Section 14.16(a) (Confidentiality Obligation) above and this Section 14.16(b)) (collectively, such Persons, the "Affiliated Parties," and any such Person, an "Affiliated Party");
- to the extent required by Applicable Law, court order, summons, subpoena or other legal process, or in connection with any litigation;
- to the extent required or requested by any Governmental Authority or regulatory authority purporting to have jurisdiction over such Person (including any self-regulatory authority);
- to any other Person involved as a party in the Facility;
- to the extent that such information:
- was or becomes available to, and readily obtainable by, such party on a non-confidential basis from a source other than applicable party receiving such information or its Affiliated Parties that is not known to be subject to a
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- confidentiality obligation to the party disclosing such information or an affiliate thereof;
- has been independently acquired or developed by any such party without utilizing any Confidential Information or violating any of their respective obligations under this Agreement; or
- becomes publicly available and readily obtainable other than as a result of a breach of this Section 14.16;
- in connection with the exercise of any right or remedy under any Transaction Document, including the Agent's sale, lease, or other disposition of Pledged Collateral after default;
- to any participant or assignee of the Agent or any such Lender or any prospective such participant or assignee (provided that such participant or assignee or prospective participant or assignee agrees in writing to be bound by this Section 14.16 prior to disclosure); or
- otherwise with the prior consent of the other Parties;
provided, however, that, that any disclosure made in violation of this Agreement shall not affect the obligations of the MCC Entities under this Agreement or the other Transaction Documents. The Parties' obligations under this Section 14.16 shall supersede all of their respective obligations under any nondisclosure agreement entered into between DZ Bank and any MCC Entity or Affiliate thereof prior to the Closing Date in connection with, or in contemplation of, the Facility.
- Certain Duties. Each of Agent and the Lenders, on the one hand, and the MCC Entities, on the other hand, agrees to use the same efforts to protect the confidentiality of the Confidential Information as it uses to protect its own confidential information of a similar nature.
- Obligations Regarding MNPI. To the extent that the Agent, Lenders, or their respective Affiliated Parties receives from any MCC Entity any Confidential Information that constitutes material non-public information, as defined under Regulation FD promulgated under the Exchange Act ("MNPI"), related to the MCC Entities during the term of the Facility:
- Each of the Agent and the Lenders hereby acknowledges that it understands that (A) the Confidential Information described by this Agreement may contain or constitute MNPI concerning MCC; and (B) trading, directly or indirectly, in MCC's securities while in possession of MNPI or communicating the Confidential Information to any other person who trades in such securities could subject the Agent, Lenders, or their Affiliated Parties to liability under the U.S. federal and state securities laws related to insider trading and similar matters, including Rule 10b-5 promulgated under the Exchange Act ("Insider Trading Laws") (it being understood that, under applicable Insider Trading Laws a party may not be considered to be in possession of MNPI in connection with a trade where, in accordance with its internal procedures, such information is not available for use in connection with such trade); and
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- Each of Agent and the Lenders hereby agrees that, until the MNPI is publicly announced, each of Agent, the Lenders, and their respective Affiliated Parties (A) will not, directly or indirectly, trade or effect any transaction in MCC's securities (including entering into hedge transactions involving MCC's securities) on the basis of MNPI unless and until the Agent, such Lender or such Affiliated Party, as the case may be, can do so in compliance with applicable Insider Trading Laws, and (B) will not convey any of the Confidential Information that it has received to any other person outside of the Affiliated Parties in a manner that would violate applicable Insider Trading Laws. Each of Agent and the Lenders covenants that until the public disclosure of the MNPI, it will maintain the confidentiality of the MNPI in accordance with this Section 14.16; provided, however, that, any disclosure of the MNPI may be made by the Agent or the Lenders to their respective Affiliated Parties in accordance with this Section 14.16.
- Assignment of Rights.
- Assignment. The Borrower acknowledges and understands that the Agent or the Lenders may, subject to Section 14.7 (Binding Effect, Assignment, Etc.) above, sell and assign all or part of its interests, rights and obligations hereunder and under the other Transaction Documents to any Person or entity (a "Lender Assignee"). After such assignment the term "the Agent" or "the Lenders" as used in the Transaction Documents shall mean and include such Lender Assignee, and such Lender Assignee shall be vested with all rights, powers and remedies of the Agent and the Lenders hereunder with respect to the interest so assigned. No such assignment by the Agent or the Lenders shall relieve the Borrower of any of its obligations hereunder.
- Register. The Agent, acting for this purpose as an agent of the Borrower, shall maintain at one of its offices records of the name and address of, and the commitments of and the principal amount (and stated interest) of the Facility owing to, each Lender from time to time (the "Lender Register"). The entries in the Lender Register shall be conclusive, absent manifest error, and the Parties shall treat each Person whose name is recorded in the Lender Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement. The Lender Register shall be available for inspection by the Borrower or any Lender (but only with respect to any entry relating to such Lender's commitments or Advances) at any reasonable time and from time to time upon reasonable prior notice. No assignment shall be effective for purposes of this Agreement unless it has been recorded in the Lender Register as provided in this Section 14.17(b).
- Registered Form. This Section 14.17, and Section 14.18 (Participations) below, shall be construed so that the Facility is, at all times, maintained in "registered form," within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Code and any related regulations (and any successor provisions).
- Evidence of Assignment. Any assignment of a Lender's rights and obligations hereunder to a Lender Assignee may be evidenced by an Assignment and Acceptance or such other instrument(s) or document(s) as may be satisfactory to the assigning Lender, the Borrower (so long as no Event of Default shall have occurred and be continuing) and the Lender Assignee.
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- Participations.
- Generally. To the extent that any Lender sells participations to any Person (each, a "Facility Participant"), (i) such Lender's obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other Parties for the performance of such obligations, and (iii) the Borrower, the Agent and Lenders shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement; provided, however, that, unless a Specified Event of Default shall have occurred and be continuing, no such participation may be sold to a Competitor without the prior written consent of the Borrower.
- Participation Agreements. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided, however, that, such agreement or instrument may provide that such Lender will not, without the consent of the Facility Participant, agree to any amendment, modification or waiver in the nature described in clauses (A) through (E) of the proviso to Section 14.3(b) (Amendments and Waivers) above.
- Benefit of Certain Provisions. The Borrower agrees that each participant shall be entitled to the benefits of Sections 2.12 (Reserve Requirements; Increased Costs) and 2.14 (Taxes) above (subject to the requirements and limitations therein, including the requirements under Section 2.14(f) above (it being understood that the documentation required under such Section 2.14(f) shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to Sections 14.7 (Binding Effect, Assignment, Etc.) and 14.17 (Assignment of Rights) above, provided that such Facility Participant (i) agrees to be subject to the provisions of Section 2.15 (Duty to Mitigate) above as if it were an assignee under Sections 14.7 (Binding Effect, Assignment, Etc.) and 14.17 (Assignment of Rights) above; and (ii) shall not be entitled to receive any greater payment under Sections 2.12 (Reserve Requirements; Increased Costs) and 2.14 (Taxes) above, with respect to any participation, than the participating Lender would have been entitled to receive, except to the extent that such entitlement to receive a greater payment results from a Change in Law that occurs after the Facility Participant acquired the applicable participation. Any Lender that sells a participation in the Facility (or any portion thereof) shall, at the Borrowers' request and expense, use reasonable efforts to cooperate with the Borrower to effectuate the provisions of Section 2.15(a) above with respect to the Facility Participant (or proposed Facility Participant) under such participation.
- Facility Participant Register. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each participant and the principal amounts (and stated interest) of each participant's interest in the Facility or other obligations under this Agreement or any other Transaction Document (the "Facility Participant Register"); provided, that no Lender shall have any obligation to disclose all or any portion of the Facility Participant Register (including the identity of any participant or any information relating to a participant's interest in the Facility) to any Person except to the extent that such disclosure is necessary to establish that such Facility is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Facility Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Facility Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice
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- to the contrary. For the avoidance of doubt, the Agent (in its capacity as Agent) shall have no responsibility for maintaining any Facility Participant Register.
- Revival of Secured Obligations. This Agreement and the Transaction Documents shall remain in full force and effect and continue to be effective if any petition is filed by or against the Borrower for liquidation or reorganization, if the Borrower becomes insolvent or makes an assignment for the benefit of creditors, if a receiver or trustee is appointed for all or any significant part of the Borrower's assets, or if any payment or transfer of Pledged Collateral is recovered from the Agent or the Lenders. The Transaction Documents and the Secured Obligations and Pledged Collateral security shall continue to be effective, or shall be revived or reinstated, as the case may be, if at any time payment and performance of the Secured Obligations or any transfer of Pledged Collateral to the Agent, or any part thereof is rescinded, avoided or avoidable, reduced in amount, or must otherwise be restored or returned by, or is recovered from, the Agent, the Lenders or by any obligee of the Secured Obligations, whether as a "voidable preference," "fraudulent conveyance," or otherwise, all as though such payment, performance, or transfer of Pledged Collateral had not been made. In the event that any payment, or any part thereof, is rescinded, reduced, avoided, avoidable, restored, returned, or recovered, the Transaction Documents and the Secured Obligations shall be deemed, without any further action or documentation, to have been revived and reinstated except to the extent of the full, final, and indefeasible payment to the Agent or the Lenders in cash. The provisions of this Section 14.19 shall survive the termination of this Agreement.
- Counterparts. This Agreement, and any amendments, waivers, consents or supplements hereto, may be executed in any number of counterparts, and by different parties hereto in separate counterparts, each of which when so delivered shall be deemed an original, but all of which counterparts shall constitute but one and the same instrument.
- No Third-Party Beneficiaries. No provisions of the Transaction Documents are intended, nor will be interpreted, to provide or create any third-party beneficiary rights or any other rights of any kind in any Person other than the Parties, the Secured Parties, the Collection Account Bank and the Custodian, unless specifically provided otherwise herein, and, except as otherwise so provided, all provisions of the Transaction Documents will be personal and solely among the Parties.
- Agency.
- The Lenders hereby irrevocably appoint DZ Bank AG Deutsche Zentral-Genossenschaftsbank, Frankfurt Am Main, New York Branch, to act on their behalf as the Agent hereunder and under the other Transaction Documents and authorize the Agent to take such actions on their behalf and to exercise such powers as are delegated to the Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto.
- The Lenders agree to indemnify the 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), according to its respective Advance percentages (based upon the total outstanding Advances) in effect on the date on which indemnification is sought under this Section 14.22, from and against any and all liabilities,
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- obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind whatsoever that may at any time be imposed on, incurred by or asserted against the Agent in any way relating to or arising out of, this Agreement, any of the other Transaction 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 Agent under or in connection with any of the foregoing, in each case, except to the extent such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements result from the Agent's own gross negligence or willful misconduct. The agreements in this Section 14.22 shall survive the payment of the Facility and all other amounts payable hereunder.
- The Person serving as the Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Agent and the term "Lender" shall, unless otherwise expressly indicated or unless the context otherwise requires, include each such Person serving as the Agent hereunder in its individual capacity.
- The Agent shall have no duties or obligations except those expressly set forth herein and in the other Transaction Documents. Without limiting the generality of the foregoing, the Agent shall not:
- be subject to any fiduciary or other implied duties, regardless of whether any default or any Event of Default has occurred and is continuing;
- have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Transaction Documents that the Agent is required to exercise as directed in writing by the Lenders; provided that the Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Agent to liability or that is contrary to any Transaction Document or Applicable Law; and
- except as expressly set forth herein and in the other Transaction Documents, have any duty to disclose, and the Agent shall not be liable for the failure to disclose, any information relating to the Borrower or Affiliate thereof that is communicated to or obtained by any Person serving as the Agent or any of its Affiliates in any capacity.
- The Agent shall not be liable for any action taken or not taken by it (i) with the consent or at the request of the Lenders or as the Agent shall believe in good faith shall be necessary, under the circumstances or (ii) in the absence of its own gross negligence or willful misconduct.
- The Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Transaction Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any default or Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Transaction Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Article 4 (Conditions Precedent) above or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Agent.
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- The Agent may rely, and shall be fully protected in acting, or refraining to act, upon, any resolution, statement, certificate, instrument, opinion, report, notice, request, consent, order, bond or other paper or document that it has no reason to believe to be other than genuine and to have been signed or presented by the proper party or parties or, in the case of cables, telecopies and telexes, to have been sent by the proper party or parties. In the absence of its gross negligence or willful misconduct, the Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Agent and conforming to the requirements of this Agreement or any of the other Transaction Documents. The Agent may consult with counsel, and any opinion or legal advice of such counsel shall be full and complete authorization and protection in respect of any action taken, not taken or suffered by the Agent hereunder or under any Transaction Documents in accordance therewith. The Agent shall have the right at any time to seek instructions concerning the administration of the Pledged Collateral from any court of competent jurisdiction. The Agent shall not be under any obligation to exercise any of the rights or powers granted to the Agent by this Agreement and the other Transaction Documents at the request or direction of the Lenders unless the Agent shall have been provided by the Lenders with adequate security and indemnity against the costs, expenses and liabilities that may be incurred by it in compliance with such request or direction.
- Each Lender acknowledges that it has, independently and without reliance upon the Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agent or any other Lender or any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Transaction Document or any related agreement or any document furnished hereunder or thereunder. Without limiting the foregoing, the Agent shall, within a reasonable period following receipt thereof, furnish to each Lender any and all Financial Statements, period reports and other written documents required to be delivered on specified dates, or at regular intervals, by any MCC Entity to the Agent pursuant to the requirements set forth in this Agreement or any other Transaction Document.
- The Agent may, at any time, give notice of its resignation to the Lenders and the Borrower, effective as of the Resignation Effective Date (as defined below). Upon receipt of any such notice of resignation, the Required Lenders shall have the right, in consultation with the Borrower, to appoint a successor, which (except as may be otherwise agreed by the Required Lenders and the Borrower) shall be a bank with an office in New York, New York, or an Affiliate of any such bank with an office in New York, New York. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation (or such earlier day as shall be agreed by the Required Lenders), then the retiring Agent may (but shall not be obligated to), upon consultation with, and five Business Days' written notice to, the Lenders and the Borrower, appoint a successor Agent meeting the qualifications set forth above unless the Required Lenders (acting in consultation with the Borrower) object in writing to such appointment within such five-Business Day notice period, in which case the Resignation Effective Date shall automatically be extended until the first Business Day on which the Required Lenders (acting in consultation with the Borrower) either appoint a successor Agent or fail to object to the Agent's appointment of a successor Agent (or such
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- earlier date as may be designated by the Agent, upon not less than 10 days' prior written notice to the Lenders and the Borrower), and, in either case, such successor Agent has accepted, in writing, its role as Agent hereunder. With effect from and after the successor's appointment and acceptance as provided for above (such date, the "Resignation Effective Date"), (i) the retiring Agent shall be discharged from its duties and obligations under this Agreement and the other Transaction Documents and (ii) except for any accrued and unpaid fees, expenses or indemnity payments owed to the retiring Agent, all payments, communications and determinations provided to be made by, to or through the Agent shall instead be made by or to the successor Agent. Upon the acceptance of a successor's appointment as Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Agent (other than any rights to indemnity payments owed to the retiring Agent), and the retiring Agent shall be discharged from all of its duties and obligations under this Agreement and the other Transaction Documents. The fees payable by the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise mutually agreed between the Borrower and such successor. After the retiring or removed Agent's resignation or removal under this Agreement and the other Transaction Documents, the provisions of this Section 14.22 shall continue in effect for the benefit of such retiring or removed Agent, its sub‑agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while such retiring or removed Agent was acting as Agent. For the avoidance of doubt, the provisions of this Section 14.22(i) shall not apply with respect to, or limit, the right of the Agent to transfer its rights and obligations, in such capacity, to an Affiliate of the Agent, in the manner permitted under Section 14.7 (Binding Effect, Assignment, Etc.) above.
[Signature pages follow]
| 104 | Receivables Loan and Security Agreement |
|---|
In witness whereof, the MCC Entities, the Agent and the Lenders have duly executed and delivered this Receivables Loan and Security Agreement as of the day and year first above written.
DePalma Financing SPV I LLC
As Borrower
By: /s/ Michael Hutchby
Name: Michael Hutchby
Title: Chief Financial Officer
Signature pages to Receivables Loan and Security Agreement—1 of 4
DePalma Acquisition I LLC
As Servicer
By: /s/ Michael Hutchby
Name: Michael Hutchby
Title: Chief Financial Officer
Signature pages to Receivables Loan and Security Agreement—2 of 4
Autobahn Funding Company LLC
As Lender
By: DZ Bank AG Deutsche Zentral-Genossenschaftsbank, Frankfurt Am Main, New York Branch, as its attorney-in-fact
By: /s/ Alexander Ploch
Name: Alexander Ploch
Title: Executive Director
By: /s/ Nellie Flek
Name: Nellie Flek
Title: Director
Signature pages to Receivables Loan and Security Agreement—3 of 4
DZ Bank AG Deutsche Zentral-Genossenschaftsbank, Frankfurt Am Main, New York Branch
As Agent
By: /s/ Alexander Ploch
Name: Alexander Ploch
Title: Executive Director
By: /s/ Nellie Flek
Name: Nellie Flek
Title: Director
Signature pages to Receivables Loan and Security Agreement—4 of 4
- Exhibit A
Form of Facility Note
DePalma Financing SPV I LLC
Secured Revolving Promissory Note
USD Closing Date: December 30, 2025
Scheduled Maturity Date: December 30, 2030
For value received, DePalma Financing SPV I LLC, a Delaware limited liability company (the "Borrower"), hereby promises to pay to , a (the "Lender"), at <Address> or such other place of payment as the Lender, as the holder of this Secured Revolving Promissory Note (this "Note") may specify from time to time in writing, in lawful money of the United States of America, the principal amount of United States Dollars (USD ), or, if less, the unpaid principal amount of the aggregate Advances made by the Lender to the Borrower pursuant to the Facility Agreement (as defined below), as set forth on the attached Schedule of Advances and Repayments, on the dates specified in the Facility Agreement, and to pay interest on the unpaid principal amount of each Advance on each day that such unpaid principal amount is outstanding, at the Facility Rate specified in the Facility Agreement, together with all fees and other amounts due thereunder, on each Settlement Date and each other date specified in the Facility Agreement.
This Note is a "Facility Note" referred to in, and is executed and delivered in connection with, that certain Receivables Loan and Security Agreement, dated as of December 30, 2025 (as amended, restated, supplemented or otherwise modified from time to time, the "Facility Agreement"), by and among the Borrower, DePalma Acquisition I LLC, a Delaware limited liability company, as servicer, the several financial institutions or entities from time to time party thereto, as "Lenders" thereunder, and DZ Bank AG Deutsche Zentral-Genossenschaftsbank, Frankfurt Am Main, New York Branch, as the "Agent" thereunder (the "Agent"), and is entitled to the benefit and security of the Facility Agreement and the other Transaction Documents (as defined in the Facility Agreement). The provisions of the Facility Agreement are incorporated herein by reference.
Capitalized terms used but not defined in this Note have the meanings assigned to such terms under the Facility Agreement. In the event of a conflict between the terms set forth in this Note, and the terms set forth in the Facility Agreement, the terms set forth in the Facility Agreement shall prevail. The Facility Agreement and the other Transaction Documents may be amended, and the rights and obligations of the parties thereto and of the holder of this Note may be thereby modified, as set forth in Section 14.3(b) (Amendments and Waivers) of the Facility Agreement and the other applicable provisions of the Transaction Documents.
All payments shall be made in accordance with the Facility Agreement. The Borrower waives presentment and demand for payment, notice of dishonor, protest and notice of protest under the UCC
| Exhibit A-1 | Receivables Loan and Security Agreement<br><br>Form of Facility Note |
|---|
or any Applicable Law. The Borrower agrees to make all payments under this Note without setoff, recoupment or deduction and regardless of any counterclaim or defense.
A Event of Default under Section 13.1 (Events of Default) of the Facility Agreement shall constitute a default under this Note, and, following an Event of Default, the Secured Obligations (including the obligations represented by this Note) may be declared (or, in certain circumstances, may automatically become) immediately due and payable in the manner, and with the effect, provided in Section 13.2(a) (Acceleration, Etc.), and the other applicable provisions, of the Facility Agreement.
This Note has been negotiated and delivered to the Lender, and is payable, in the State of New York. This Note shall be governed by and construed and enforced in accordance with, the laws of the State of New York, excluding any conflicts of law rules or principles that would cause the application of the laws of any other jurisdiction.
[SIGNATURE PAGES FOLLOW]
| Exhibit A-2 | Receivables Loan and Security Agreement<br><br>Form of Facility Note |
|---|
In witness whereof, the undersigned has executed this Secured Revolving Promissory Note as of the day and year first above written.
DePalma Financing SPV I LLC
As Borrower
By:
Name:
Title:
| Exhibit A-3 | Receivables Loan and Security Agreement<br><br>Form of Facility Note |
|---|
Schedule of Advances and Repayments
| Date of Advance or Repayment | Principal Amount of Advance | Principal Amount of Repayment | Outstanding Principal Amount |
|---|---|---|---|
| Exhibit A-4 | Receivables Loan and Security Agreement<br><br>Form of Facility Note | ||
| --- | --- |
- Exhibit B
Borrower Information
- The Borrower represents and warrants to the Agent that the Borrower's current name and organizational status as of the Closing Date is as follows:
Name: DePalma Financing SPV I LLC
Type of organization: limited liability company
State of organization: Delaware
Organization file number: 10389528
The Borrower's fiscal year ends on: December 31
The Borrower's federal employer tax identification number is: [***]
- The Borrower represents and warrants to the Agent that for five years prior to the Closing Date, the Borrower has not done business under any other name or organization or form.
- The Borrower represents and warrants to the Agent that its chief executive office is located at 5 Greenwich Office Park, Suite 400, Greenwich, CT 06831.
| Exhibit B-1 | Receivables Loan and Security Agreement<br><br>Borrower Information |
|---|
- Exhibit C
Form of Monthly Settlement Report
[***]
| Exhibit C-1 | Receivables Loan and Security Agreement<br><br>Form of Monthly Settlement Report |
|---|
- Exhibit D
Form of Compliance Certificate
[***]
| Exhibit D-1 | Receivables Loan and Security Agreement<br><br>Form of Compliance Certificate |
|---|
- Exhibit E
Form of Borrowing Request
[***]
| Exhibit E-1 | Receivables Loan and Security Agreement<br><br>Form of Borrowing Request |
|---|
- Exhibit F
Form of Borrowing Base Certificate
[***]
| Exhibit F-1 | Receivables Loan and Security Agreement<br><br>Form of Borrowing Base Certificate |
|---|
- Exhibit G
Form of Borrower Power of Attorney
[***]
| Exhibit G-1 | Receivables Loan and Security Agreement<br><br>Form of Borrower Power of Attorney |
|---|
- Exhibit H
Form of Collection Account Control Agreement
[***]
| Exhibit H-1 | Receivables Loan and Security Agreement<br><br>Form of Collection Account Control Agreement |
|---|
Exhibit I
Form of Lockbox Account Control Agreement
[***]
| Exhibit I-1 | Receivables Loan and Security Agreement<br><br>Form of Lockbox Account Control Agreement |
|---|
- Exhibit J
Form of Performance Guaranty
[***]
| Exhibit J-1 | Receivables Loan and Security Agreement<br><br>Form of Performance Guaranty |
|---|
Exhibit K
Form of Medallion Loan Agreement
[***]
| Exhibit K-1 | Receivables Loan and Security Agreement<br><br>Form of Medallion Loan Agreement |
|---|
- Exhibit L
Loan Enhancement Agreement
[***]
| Exhibit L-1 | Receivables Loan and Security Agreement<br><br>Loan Enhancement Agreement |
|---|
- Annex I
Credit and Collection Policy
[***]
| Annex I | Receivables Loan and Security Agreement<br><br>Credit and Collection Policy |
|---|
- Annex II
Agreed-Upon Procedures
[***]
| Annex II | Receivables Loan and Security Agreement<br><br>Agreed Upon Procedures |
|---|
- Annex III
Lender Percentages
[***]
| Annex III | Receivables Loan and Security Agreement<br><br>Lender Percentages |
|---|
EX-10.2
EXECUTION COPY
- Performance Guaranty
This Performance Guaranty, dated as of December 30, 2025 (as amended, restated, supplemented or otherwise modified from time to time, this "Guaranty"), is made by Marblegate Capital Corporation, a Delaware corporation (the "Guarantor"), in favor of (i) DePalma Financing SPV I LLC, a Delaware limited liability company (the "Borrower"), (ii) DZ Bank AG Deutsche Zentral-Genossenschaftsbank, Frankfurt Am Main, New York Branch, in its capacity as agent for the Secured Parties under the Loan Agreement referred to in paragraph 3 of the Preliminary Statements below (together with its successors and assigns, in such capacity, the "Agent"), (iii) the Lenders and the other Secured Parties under the Loan Agreement, and (iv) their respective successors and assigns (collectively, the "Beneficiaries," and each, a "Beneficiary").
- Preliminary Statements
- DePalma Acquisition I LLC, a Delaware limited liability company ("DPA 1"), and DePalma Acquisition II, LLC, a Delaware limited liability company ("DPA 2"), each a majority-owned Subsidiary of the Guarantor, have acquired certain Medallion Loans, directly or indirectly, from third-party originators and restructured such loans pursuant to the MRP+ Program.
- The Borrower, a special-purpose entity that is 100.00% beneficially owned by DPA 1, has been established to, among other things, purchase and otherwise acquire certain Receivables, along with certain Other Transferred Property, from DPA 1 pursuant to the Purchase and Contribution Agreement, dated as of December 30, 2025 (as amended, restated, supplemented or otherwise modified from time to time, the "Purchase Agreement"), between DPA 1, as seller (the "Seller"), and the Borrower, as purchaser, become the beneficiary of the MRP+ Program with respect to such Receivables, and enter into the other transactions contemplated by the Transaction Documents. DPA 1 may acquire, directly or indirectly, certain of such Receivables and Other Transferred Property from DPA 2.
- The Borrower intends to finance its acquisition of such Receivables and Other Transferred Property through Advances made by the Lenders under the Receivables Loan and Security Agreement, dated as of December 30, 2025 (as amended, restated, supplemented or otherwise modified from time to time, the "Loan Agreement"), among the Borrower, DPA 1, as servicer thereunder (together with its successors and assigns, in such capacity, the "Servicer"), the financial institutions from time to time party thereto, as "Lenders" thereunder (the "Lenders"), and the Agent.
- The Guarantor, as direct or indirect majority equityholder of the Guaranteed Entity, will derive substantial benefit from the transactions contemplated under the Loan Agreement.
- It is a condition precedent to the effectiveness of the Loan Agreement and the obligation of the Lenders to make Advances thereunder that, inter alia, the Guarantor shall have executed and delivered this Guaranty, and the Lenders would be unwilling to make such Advances without the benefit of this Guaranty.
Now, therefore, in consideration of the foregoing premises, and in order to induce the Agent and the Lenders to enter into the Loan Agreement, and the Lenders to make Advances thereunder, the Guarantor, intending to be legally bound, hereby agrees as follows:
- Definitions and Usage.
- Certain Definitions. Unless otherwise defined herein, the following capitalized terms shall have the following meanings:
"Guaranteed Obligations" means all present and future obligations (howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or due or to become due) of the Guaranteed Entity, arising under or in connection with the Loan Agreement, the Purchase Agreement or any other Transaction Document to which the Guaranteed Entity is or becomes a party or the transactions contemplated hereby or thereby and shall include, without limitation, all obligations to pay costs, expenses, indemnifications and all other amounts due or to become due from the Guaranteed Entity under the Loan Agreement, the Purchase Agreement or the other Transaction Documents, including, without limitation any such amounts that accrue after the commencement of a bankruptcy, insolvency or similar proceeding (in each case whether or not allowed as a claim in such proceeding), in each case, on the terms and subject to the conditions set forth in the applicable Transaction Documents.
"Guaranteed Entity" means, DPA 1, individually, as Seller and as Servicer.
"Other Transferred Property" has the meaning specified in the Purchase Agreement.
"Repurchase Amount" has the meaning specified in the Purchase Agreement.
"Transfer Date" has the meaning specified in the Purchase Agreement.
- Other Defined Terms. Capitalized terms used herein that are not otherwise defined in this Guaranty (including, without limitation, the terms "Adjusted Consolidated Net Income," "Advance," "Affiliate," "Applicable Law," "Bankruptcy Code," "Change of Control," "Closing Date," "Compliance Certificate," "Consolidated Net Worth," "Default," "Default Funding Rate," "Equity Interests," "ERISA," "ERISA Affiliate," "Event of Default," "Excluded Taxes," "Final Settlement Date," "Financial Statements," "GAAP," "Governmental Authority," "Insolvency Proceeding," "Lien," "Material Adverse Effect," "MCC Entities," "MCC Entity," "Medallion Loans," "MRP+ Program," "Organizational Documents," "Person," "Pledged Collateral," "Representatives," "Secured Parties," "Secured Party," "Solvent," "Sub-Servicer," "Sub-Servicing Agreement," "Subsidiary," "Taxes" and "Transaction Documents") shall have the meanings assigned to them in the Loan Agreement.
- Usage. The rules of construction and usage set forth in Section 1.2 (Usage) of the Loan Agreement shall apply to this Guaranty.
- Guarantee. The Guarantor hereby irrevocably and unconditionally guarantees (as primary obligor and not merely as surety) to the Beneficiaries that all Guaranteed Obligations consisting of payment obligations of the Guaranteed Entity under the Transaction Documents (including, without limitation, the obligation of DPA 1 to pay each Repurchase Amount, as required under Section
| 2 | Performance Guaranty |
|---|
- 3.3 (Remedies for Breach) of the Purchase Agreement, and the indemnity obligations of DPA 1 pursuant to Article 5 (Indemnification) of the Purchase Agreement) will be, at the place, time and manner specified in the Transaction Documents, duly and punctually paid, in accordance with their terms (as to which the guarantee under this Section 2 shall be of payment and not of collection).
- Undertaking. The Guarantor hereby unconditionally and irrevocably undertakes and agrees, with and for the benefit of the Beneficiaries, to cause the due and punctual performance and observance by each Guaranteed Entity of all other Guaranteed Obligations.
- Payment and Performance of Guaranteed Obligations; Limitation.
- In the event that any Guaranteed Entity shall fail in any manner whatsoever to perform or observe any of the Guaranteed Obligations when the same shall be required to be performed or observed under any Transaction Document, then the Guarantor will itself duly and punctually perform or observe, or cause to be duly and punctually performed or observed, such Guaranteed Obligations.
- For the avoidance of doubt, (i) the guarantee and undertaking of the Guarantor pursuant to Sections 2 (Guarantee) and 3 (Undertaking) above are limited to the Guaranteed Obligations and (ii) without limiting the foregoing, this Guaranty does not (A) constitute a direct guaranty of (A) the obligations of the Borrower under the Loan Agreement (except to the extent that DPA 1 has expressly agreed to perform such obligations) or (B) the collectability of the Receivables or Other Transferred Property or (B) otherwise constitute credit recourse.
- Obligations Absolute. The Guarantor guarantees and undertakes that the Guaranteed Obligations will be paid and performed strictly in accordance with the terms of the Transaction Documents, or any other document executed and delivered by the Guaranteed Entity in connection therewith, 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 Beneficiaries, the Borrower, the Guaranteed Entity or any of their respective successors and assigns with respect thereto. It shall not be a condition to the obligations of the Guarantor pursuant to Sections 2 (Guarantee) and 3 (Undertaking) above to pay, perform or observe any Guaranteed Obligation (or to cause the same to be paid, performed or observed) that the Beneficiaries shall have first made any request of or demand upon or given any notice to the Guarantor or to any Guaranteed Entity or their respective successors or assigns, or have instituted any action or proceeding against either the Guarantor or any Guaranteed Entity or their respective successors or assigns in respect thereof. The obligations of the Guarantor to pay and perform the Guaranteed Obligations under this Guaranty are independent of the obligations of the Guaranteed Entity to pay and perform the Guaranteed Obligations, and a separate action or actions may be brought and prosecuted against the Guarantor to enforce this Guaranty, irrespective of whether any action is brought against the Guaranteed Entity or whether the Guaranteed Entity are joined in any such action or actions. The liability of the Guarantor under this Guaranty shall be absolute and unconditional irrespective of:
- any lack of validity or enforceability of any Transaction Document;
- any change in the time, manner or place of payment of, or in any other term of, all or any of the Guaranteed Obligations, or any other amendment or waiver of or any consent to departure from
| 3 | Performance Guaranty |
|---|
- any Transaction Document or any other agreement or instrument executed by any Guaranteed Entity relating thereto, including, without limitation, any increase in the Guaranteed Obligations;
- the invalidity, illegality or unenforceability of any Transaction Document or any other agreement or instrument relating thereto (whether wholly or in part) on any ground whatsoever, including without limitation any defect in or want of powers of any Guaranteed Entity or irregular exercise thereof, any lack of authority by any person purporting to act on behalf of any Guaranteed Entity, any imposition of foreign exchange controls which may prevent or hinder any Guaranteed Entity from paying its obligations under any Transaction Document, any order of any governmental entity purporting to reduce, amend or restructure any of the obligations or any legal or other limitation, disability or incapacity, or any change in the constituting documents of or the bankruptcy, winding-up, liquidation or insolvency of any Guaranteed Entity;
- any taking, exchange, release or non-perfection of any assets included in the Pledged Collateral, or any taking, release or amendment or waiver of or consent to departure from any guaranty, for all or any of the Guaranteed Obligations;
- any manner of application of collateral, or proceeds thereof, to all or any of the Guaranteed Obligations, or any manner of sale or other disposition of any collateral for all or any of the Guaranteed Obligations, or any other assets of any Guaranteed Entity or any of their Affiliates;
- any stay, injunction or other prohibition (whether as a result of the insolvency, winding up, bankruptcy or reorganization of any Guaranteed Entity or otherwise) which may delay or prevent any payment or performance (or any declaration that payment or performance is due) by any Guaranteed Entity; or
- any change, restructuring or termination of the limited liability company structure or existence of any Guaranteed Entity (including, without limitation, any merger involving any Guaranteed Entity); or
- any other circumstance that might otherwise constitute a defense available to, or a discharge of, any Guaranteed Entity or the Guarantor (other than the defense of payment or performance of the applicable Guaranteed Obligation).
- Guarantor's Further Agreements to Pay. The Guarantor further agrees, as the principal obligor and not as a guarantor only, to pay to the Agent, forthwith upon written demand, in immediately‑available funds, all reasonable and documented out-of-pocket costs and expenses (including court costs and reasonable and documented legal expenses) incurred or expended by the Agent or any other Beneficiary in connection with the enforcement of this Guaranty, together with interest on amounts recoverable under this Guaranty from the time when such amounts become due until payment, at a rate of interest (computed for the actual number of days elapsed based on a 360‑day year) equal to the Default Funding Rate; provided, that in no event shall such rate exceed the maximum rate permitted by Applicable Law.
- Limitation on Actions. The Guarantor hereby agrees not to take any actions, assert or exercise any rights of any kind or nature against the Borrower or any Guaranteed Entity or any
| 4 | Performance Guaranty |
|---|
- of the Borrower's or any Guaranteed Entity's property, including the Pledged Collateral, seeking compensation, indemnification, contribution, reimbursement or any other payment in connection with this Guaranty or the performance of the Guaranteed Obligations, regardless of whether such rights arise by operation of law, pursuant to contract or otherwise, until the occurrence of the Final Settlement Date.
- Waivers by Guarantor. The Guarantor waives notice of acceptance of this Guaranty, notice of any action taken or omitted by the Agent (or its assigns) in reliance on this Guaranty, and any requirement that the Agent (or its assigns) be diligent or prompt in making demands under this Guaranty, giving notice of any Default, Event of Default, termination event or other default or omission by any Guaranteed Entity or asserting any other rights of the Agent under this Guaranty. The Guarantor warrants that it has adequate means to obtain from each Guaranteed Entity on a continuing basis, information concerning the financial condition of such Guaranteed Entity and that it is not relying on the Agent to provide such information, now or in the future. The Guarantor also irrevocably waives all defenses (i) that at any time may be available in respect of the Guaranteed Obligations by virtue of any statute of limitations, valuation, stay, moratorium law or other similar law now or hereafter in effect or (ii) that arise under the law of suretyship, including impairment of collateral. The Guarantor agrees that the validity and enforceability of this Guaranty, including without limitation, the provisions of Section 15 (Subrogation; Subordination) below, shall not be impaired or affected by any of the following:
- any extension, modification or renewal of, or indulgence with respect to, or substitutions for, the Guaranteed Obligations or any part thereof or any agreement relating thereto at any time;
- any failure or omission to enforce any right, power or remedy with respect to the Guaranteed Obligations or any part thereof or any agreement relating thereto, or any collateral securing the Guaranteed Obligations or any part thereof;
- any waiver of any right, power or remedy or of any Default, Event of Default, termination event or other default or omission with respect to the Guaranteed Obligations or any part thereof or any agreement relating thereto;
- any release, surrender, compromise, settlement, waiver, subordination or modification, with or without consideration, of any other obligation of any person or entity with respect to the Guaranteed Obligations or any part thereof;
- the enforceability or validity of the Guaranteed Obligations or any part thereof or the genuineness, enforceability or validity of any agreement relating thereto or with respect to the Guaranteed Obligations or any part thereof;
- the Agent not applying payments received from any source to the payment of any Guaranteed Obligations of any Guaranteed Entity or any part thereof prior to or in lieu of application to the payment of amounts which are not covered by this Guaranty even though the Agent (or its assigns) might lawfully have elected to apply such payments to any part or all of the Guaranteed Obligations of such Guaranteed Entity or to amounts which are not covered by this Guaranty; provided, that for the avoidance of doubt, any payment or amounts received from any source which are in fact applied by the Agent to the payment of the Guaranteed Obligations shall reduce the Guaranteed Obligations by such amount;
| 5 | Performance Guaranty |
|---|
- the existence of any claim, setoff or other rights which the Guarantor may have at any time against any Guaranteed Entity in connection herewith or with any unrelated transaction;
- any assignment or transfer of the Guaranteed Obligations or any part thereof; or
- any failure on the part of any Guaranteed Entity to perform or comply with any term of the Purchase Agreement, the Loan Agreement or any other Transaction Document,
all whether or not the Guarantor shall have had notice or knowledge of any act or omission referred to in the foregoing clauses (a) through (i) of this Section 8.
- Unenforceability of Guaranteed Obligations Against Guaranteed Entity. Notwithstanding (a) any change of ownership of any Guaranteed Entity or the insolvency, bankruptcy or any other change in the legal status of any Guaranteed Entity; (b) the change in or the imposition of any law, decree, regulation or other governmental act which does or might impair, delay or in any way affect the validity, enforceability or the payment when due of the Guaranteed Obligations; (c) the failure of any Guaranteed Entity or the Guarantor to maintain in full force, validity or effect or to obtain or renew when required all governmental and other approvals, licenses or consents required in connection with the Guaranteed Obligations or this Guaranty, or to take any other action required in connection with the performance of all obligations pursuant to the Guaranteed Obligations or this Guaranty; or (d) if any of the moneys included in the Guaranteed Obligations have become irrecoverable from any Guaranteed Entity for any other reason other than final payment in full of the Guaranteed Obligations in accordance with their terms, this Guaranty shall nevertheless be binding on the Guarantor. This Guaranty shall be in addition to any other guaranty or other security for the Guaranteed Obligations, and it shall not be rendered unenforceable by the invalidity of any such other guaranty or security. In the event that acceleration of the time for payment of any of the Guaranteed Obligations is stayed upon the insolvency, bankruptcy or reorganization of any Guaranteed Entity or for any other reason with respect to any Guaranteed Entity, all such amounts then due and owing with respect to the Guaranteed Obligations, or any other agreement evidencing, securing or otherwise executed in connection with the Guaranteed Obligations, shall be immediately due and payable by the Guarantor.
- Representations and Warranties. The Guarantor hereby represents and warrants (which representations and warranties shall survive the execution and delivery of this Guaranty), as of the Closing Date, and the Guarantor shall be deemed to represent and warrant, at all times prior to the Final Settlement Date, to and for the benefit of the Beneficiaries, as follows:
- Activities, Etc. The Guarantor is fully aware of the activities of the Guaranteed Entity and the terms and conditions of the Loan Agreement. There are no conditions precedent to the effectiveness of this Guaranty that have not been satisfied or waived.
- Existence and Power. The Guarantor is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, and has all necessary powers and all governmental licenses, authorizations, consents and approvals required to carry on its business in each jurisdiction in which the nature of its business requires such authorization except for any such governmental license, authorization, consent or approval the absence of which would not be reasonably likely to have a Material Adverse Effect.
| 6 | Performance Guaranty |
|---|
- No Conflict. The execution, delivery and performance by the Guarantor of this Guaranty are within the powers granted by the Guarantor's Organizational Documents, have been duly authorized by all necessary action, do not contravene or violate (i) its Organizational Documents, (ii) any law, rule or regulation applicable to it unless such contravention or violation would not reasonably be likely to result in a Material Adverse Effect, (iii) any restrictions under any agreement, contract or instrument to which it is a party or by which it or any of its property is bound unless such contravention or violation would not reasonably be likely to result in a Material Adverse Effect, or (iv) any order, writ, judgment, award, injunction or decree binding on or affecting it or its property unless such contravention or violation would not reasonably be likely to result in a Material Adverse Effect, and do not result in the creation or imposition of any Lien on assets of the Guarantor or its Subsidiaries (except as created hereunder or under the other Transaction Documents); and no transaction contemplated hereby requires compliance with any bulk sales act or similar law. This Guaranty has been duly authorized, executed and delivered by the Guarantor.
- Governmental Authorization. No authorization or approval or other action by, and no notice to or filing with, any Governmental Authority is required for the due execution, delivery and performance by the Guarantor of this Guaranty. No injunction, writ, restraining order or other order of any nature materially and adversely affects the Guarantor's performance of its obligations under this Guaranty.
- Binding Effect. This Guaranty constitutes the legal, valid and binding obligations of the Guarantor enforceable against the Guarantor in accordance with its terms, except as such enforcement may be limited by applicable bankruptcy, insolvency, reorganization or other similar laws relating to or limiting creditors' rights generally and by general principles of equity.
- Actions, Suits. There are no actions, suits, investigations or proceedings pending, or to the knowledge of the Guarantor, threatened, against or affecting the Guarantor or any of the properties of the Guarantor in or before any court, arbitrator or other body, which, if adversely determined, would reasonably be likely to have a Material Adverse Effect. The Guarantor is not in default with respect to any order of any court, arbitrator or Governmental Authority.
- Ownership of Equity. The Guarantor owns (directly or indirectly) at least 80.00% of the issued and outstanding Equity Interests of DPA 1, which Equity Interests are, as of the Closing Date, free and clear of any Lien. DPA 1 owns 100.00% of the issued and outstanding Equity Interests of the Borrower, free and clear of any Lien. Such Equity Interests are validly issued, fully paid and nonassessable, and there are no options, warrants or other rights to acquire securities or other Equity Interests of DPA 1 or the Borrower.
- Solvency. The Guarantor is Solvent and will not fail to be Solvent after giving effect to the transactions contemplated hereby and by the other Transaction Documents.
- Consideration. The direct and indirect benefits to the Guarantor from the transactions contemplated by the Transaction Documents provide fair consideration and reasonably equivalent value to the Guarantor for the obligations it undertakes pursuant to this Guaranty.
| 7 | Performance Guaranty |
|---|
- Representations and Warranties Under Other Transaction Documents.
- Loan Agreement. Each of the representations and warranties made by the Servicer under Article V (Representations and Warranties) of the Loan Agreement is true and correct on each date that any such representation or warranty is made, or deemed to be made, thereunder.
- Purchase Agreement. Each of the representations and warranties made by the Seller under Section 3.1 (Representations, Warranties and Covenants of the Seller) is true and correct on each date that any such representation or warranty is made, or deemed to be made, thereunder.
- Covenants of the Guarantor. The Guarantor hereby covenants and agrees, for the benefit of the Beneficiaries, that, at all times from and after the Closing Date until the Final Settlement Date:
- Financial Covenants.
- Equity. The Consolidated Net Worth shall not be, at any time, less than USD 100,000,000.
- Profitability. Commencing with the Fiscal Year ending on December 31, 2026, the Adjusted Consolidated Net Income of MCC for each Fiscal Year shall not be less than USD 1.
- Preservation of Existence, Etc. The Guarantor shall, and shall cause DPA 1 to:
- preserve, renew and maintain in full force and effect its legal existence and good standing under the laws of the jurisdiction of its organization;
- take all reasonable action to maintain all rights, licenses, permits, privileges and franchises necessary or desirable in the normal conduct of its business, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect; and
- preserve or renew all of its registered patents, trademarks, trade names and service marks, the non-preservation of which could reasonably be expected to have a Material Adverse Effect.
- Maintenance of Properties. The Guarantor shall (i) maintain, preserve and protect all of its properties and equipment necessary in the operation of its business in good working order and condition (ordinary wear and tear excepted) and (ii) make all necessary repairs thereto and renewals and replacements thereof, except (in the case of the foregoing clauses (i) and (ii)) to the extent that the failure to do so could not reasonably be expected to have a Material Adverse Effect.
- Payment of Obligations. The Guarantor shall pay, discharge or otherwise satisfy as the same shall become due and payable, all of its obligations and liabilities, including Tax liabilities, unless the same are being contested in good faith by appropriate proceedings diligently conducted and adequate
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- reserves in accordance with GAAP are being maintained by the Guarantor, except to the extent that the failure to do so could not reasonably be expected to have a Material Adverse Effect.
- Audits and Inspection. The Guarantor shall permit, shall cause the Borrower and the Servicer to permit, and shall require the Sub-Servicer (in accordance with the Sub-Servicing Agreement) to permit, the inspections and other activities of the Agent, the Lenders and their respective Representatives to occur in accordance with Section 8.9 (Audits and Inspection) of the Loan Agreement.
- Change of Control. At no time shall the Guarantor take, or cause or permit any other MCC Entity to take, any action that would result in a Change of Control.
- Books and Records. The Guarantor shall maintain proper books of record and account, in which full, true and correct entries in conformity with GAAP consistently applied shall be made of all financial transactions and matters involving the assets and business of the Guarantor.
- ERISA. Neither the Guarantor nor any ERISA Affiliate shall permit to occur any ERISA Event that could reasonably be expected to have a Material Adverse Effect.
- Confidentiality. The Guarantor shall comply with the confidentiality obligations under Section 14.16 (Confidentiality) of the Loan Agreement.
- Amendments. No Transaction Document shall be amended, except in accordance with Section 14.3 (Amendments and Waivers) of the Loan Agreement.
- Reporting. The Guarantor shall furnish to the Agent (or, in the case of the Financial Statements of the Borrower, cause the Borrower to furnish) the Financial Statements and Compliance Certificates required to be delivered under Sections 7.2 (Financial Statements) and 7.4(a) (Compliance Certificate), respectively, of the Loan Agreement, as and when the same are required to be delivered thereunder.
- Insurance.
- Maintenance of Insurance. The Guarantor agrees to maintain (or cause to be maintained), at all times, covering itself and the other MCC Entities, (i) a fidelity insurance in an amount equal to USD 2,000,000 and (ii) an errors and omissions policy in an amount equal to USD 2,000,000, in each underwritten by an insurance company and on terms and conditions acceptable to the Agent, with the Agent, for the benefit of the Secured Parties being named as a loss payee of each such policy.
- Certificates. The Guarantor shall deliver to the Agent certificates of insurance that evidence compliance with the insurance obligations in Section 13(a) (Maintenance of Insurance) above and the obligations contained in this Section 13(b). Any failure of the Agent to scrutinize such insurance certificates for compliance is not a waiver of any of the Agent's rights, all of which are reserved. The Guarantor shall provide the Agent with copies of each insurance policy, and, upon entering or amending any insurance policy required hereunder, the Guarantor shall provide the Agent with copies of such policies and shall promptly deliver to the Agent updated insurance certificates with respect to such policies.
| 9 | Performance Guaranty |
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- General Waiver. The Guarantor hereby waives promptness, diligence, notice of acceptance, defenses (including but not limited to all suretyship defenses) and any other notice with respect to any of the Guaranteed Obligations and this Guaranty and any requirement that the Agent protect, secure, perfect or insure any security interest or lien or any property subject thereto or exhaust any right or take any action against any Guaranteed Entity or any other Person or any collateral.
- Subrogation; Subordination. Notwithstanding anything to the contrary contained herein, until the Final Settlement Date, the Guarantor: (a) will not enforce or otherwise exercise any right of subrogation to any of the rights of the Agent or any Secured Party against any Guaranteed Entity, (b) hereby waives all rights of subrogation (whether contractual, under Section 509 of the Bankruptcy Code, at law or in equity or otherwise) to the claims of the Borrower, the Agent and the Lenders against any Guaranteed Entity and all contractual, statutory or legal or equitable rights of contribution, reimbursement, indemnification and similar rights and "claims" (as that term is defined in the Bankruptcy Code) which the Guarantor might now have or hereafter acquire against any Guaranteed Entity that arise from the existence or performance of the Guarantor's obligations hereunder, (c) will not claim any setoff, recoupment or counterclaim against any Guaranteed Entity in respect of any liability of the Guarantor to such Guaranteed Entity, and (d) waives any benefit of and any right to participate in any collateral security which may be held by the Borrower, the Agent or any other Secured Party. The payment of any amounts due with respect to any indebtedness of any Guaranteed Entity now or hereafter owed to the Guarantor is hereby subordinated to the prior payment in full of all of the Guaranteed Obligations (other than unasserted contingent obligations) in the manner hereinafter set forth. The Guarantor agrees that, after the occurrence and during the continuance of any default in the payment or performance of any of the Guaranteed Obligations, the Guarantor will not demand, sue for or otherwise attempt to collect any such indebtedness of such Guaranteed Entity to the Guarantor until all of the Guaranteed Obligations shall have been paid and performed in full. If, notwithstanding the foregoing sentence, the Guarantor shall collect, enforce or receive any amounts in respect of such indebtedness while any Guaranteed Obligations are still unperformed or outstanding after the occurrence and during the continuance of any default in the payment or performance of such Guaranteed Obligations, such amounts shall be collected, enforced and received by the Guarantor as trustee for the Agent (and its assigns) and be paid over to the Agent (or its assigns) on account of the Guaranteed Obligations without affecting in any manner the liability of the Guarantor under the other provisions of this Guaranty. The provisions of this Section 15 shall be supplemental to and not in derogation of any rights and remedies of the Agent under any separate subordination agreement which the Agent may at any time and from time to time enter into with the Guarantor.
- Termination. The Guarantor's obligations hereunder shall continue in full force and effect until the Final Settlement Date, provided that this Guaranty shall continue to be effective or shall be reinstated, as the case may be, if at any time payment or other satisfaction of any of the Guaranteed Obligations is rescinded or must otherwise be restored or returned upon the bankruptcy, insolvency, or reorganization of any Guaranteed Entity or otherwise, as though such payment had not been made or other satisfaction occurred, whether or not the Agent (or its assigns) is in possession of this Guaranty. No invalidity, irregularity or unenforceability by reason of the Bankruptcy Code or any insolvency or other similar law, or any law or order of any government or agency thereof purporting to reduce, amend or otherwise affect the Guaranteed Obligations shall impair, affect, be a defense to or claim against the obligations of the Guarantor under this Guaranty.
| 10 | Performance Guaranty |
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- Effect of Bankruptcy. This Guaranty shall survive the insolvency of any Guaranteed Entity and the commencement of any case or proceeding by or against any Guaranteed Entity under the Bankruptcy Code or other federal, state or other applicable bankruptcy, insolvency or reorganization statutes. No automatic stay under the Bankruptcy Code with respect to any Guaranteed Entity or other federal, state or other applicable bankruptcy, insolvency or reorganization statutes to which any Guaranteed Entity is subject shall postpone the obligations of the Guarantor under this Guaranty.
- Taxes. All payments to be made by the Guarantor hereunder shall be made free and clear of any deduction or withholding of any and all present and future Taxes. If the Guarantor is required by law to make any deduction or withholding for Taxes (other than Excluded Taxes) on account of any sum payable hereunder to any Beneficiary, the sum due from it in respect of such payment shall be increased to the extent necessary to ensure that, after the making of such deduction or withholding, the Agent receives a net sum equal to the sum which it would have received had no deduction or withholding been made. The Agent shall deliver to the Guarantor any certificates, documents or evidence received by it from any Lender pursuant to Section 2.14 (Taxes) of the Loan Agreement from time to time relating to the tax treatment of payments to such Lender.
- Bankruptcy Petition. The Guarantor agrees that, notwithstanding anything to the contrary in this Guaranty, in any other Transaction Document or in any other agreement, arrangement or understanding between or among one or more of the parties hereto, prior to the date that is one year and one day after the Final Settlement Date, it shall not institute, or join any other Person in instituting, any Insolvency Proceeding against the Borrower.
- Amendments, Etc. No amendment or waiver of any provision of this Guaranty or consent to any departure by the Guarantor herefrom shall be effective unless in a writing signed by the Agent, and then such amendment, waiver or consent shall be effective only in the specific instance and for the specific purpose for which given.
- Notices. All demands, notices and communications hereunder shall be provided in accordance with Section 14.2 (Notices) of the Loan Agreement.
- No Waiver; Remedies. No failure on the part of any Beneficiary or any of its respective assigns 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. The remedies herein provided are cumulative and not exclusive of any remedies provided by law.
- Continuing Agreement; Assignments. This Guaranty is a continuing agreement and shall (i) remain in full force and effect until the Final Settlement Date, (ii) be binding upon the Guarantor, its successors and assigns, and (iii) inure to the benefit of, and be enforceable by, the Beneficiaries and their respective successors, transferees and assigns.
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- Governing Law. THIS Guaranty SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, EXCLUDING CONFLICTS OF LAWS PRINCIPLES THAT WOULD CAUSE APPLICATION OF LAWS OF ANY OTHER JURISDICTION.
- Submission to Jurisdiction. The Guarantor hereby irrevocably and unconditionally submits, for itself and its property, to the nonexclusive jurisdiction of any New York State court or federal court of the United States sitting in the Borough of Manhattan, New York City, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Guaranty, or for recognition or enforcement of any judgment. The Guarantor hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in any such New York State court or, to the extent permitted by law, in such federal court. A final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. The Guarantor hereto irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection that it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Guaranty in any New York State or federal court located in the Borough of Manhattan. The Guarantor hereby irrevocably waives, to the fullest extent permitted by law, the defense of inconvenient forum to the maintenance of such action or proceeding in any such court.
[Remainder of page intentionally left blank]
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In witness whereof, the Guarantor has caused this Guaranty to be duly executed and delivered by its officer thereunto duly authorized as of the date first above written.
Marblegate Capital Corporation
By: /s/ Michael Hutchby
Name: Michael Hutchby
Title: Chief Financial Officer
Signature page to Performance Guaranty
EX-10.3
DePalma Financing SPV I LLC
Secured Revolving Promissory Note
USD $120,000,000.00 Closing Date: December 30, 2025
Scheduled Maturity Date: December 30, 2030
For value received, DePalma Financing SPV I LLC, a Delaware limited liability company (the "Borrower"), hereby promises to pay to Autobahn Funding Company LLC, a Delaware limited liability company (the "Lender"), at One Vanderbilt Ave., New York, NY 10017 or such other place of payment as the Lender, as the holder of this Secured Revolving Promissory Note (this "Note") may specify from time to time in writing, in lawful money of the United States of America, the principal amount of ONE HUNDRED TWENTY MILLION AND NO/100 United States Dollars (USD $120,000,000.00), or, if less, the unpaid principal amount of the aggregate Advances made by the Lender to the Borrower pursuant to the Facility Agreement (as defined below), as set forth on the attached Schedule of Advances and Repayments, on the dates specified in the Facility Agreement, and to pay interest on the unpaid principal amount of each Advance on each day that such unpaid principal amount is outstanding, at the Facility Rate specified in the Facility Agreement, together with all fees and other amounts due thereunder, on each Settlement Date and each other date specified in the Facility Agreement.
This Note is a "Facility Note" referred to in, and is executed and delivered in connection with, that certain Receivables Loan and Security Agreement, dated as of December 30, 2025 (as amended, restated, supplemented or otherwise modified from time to time, the "Facility Agreement"), by and among the Borrower, DePalma Acquisition I LLC, a Delaware limited liability company, as servicer, the several financial institutions or entities from time to time party thereto, as "Lenders" thereunder, and DZ Bank AG Deutsche Zentral-Genossenschaftsbank, Frankfurt Am Main, New York Branch, as the "Agent" thereunder (the "Agent"), and is entitled to the benefit and security of the Facility Agreement and the other Transaction Documents (as defined in the Facility Agreement). The provisions of the Facility Agreement are incorporated herein by reference.
Capitalized terms used but not defined in this Note have the meanings assigned to such terms under the Facility Agreement. In the event of a conflict between the terms set forth in this Note, and the terms set forth in the Facility Agreement, the terms set forth in the Facility Agreement shall prevail. The Facility Agreement and the other Transaction Documents may be amended, and the rights and obligations of the parties thereto and of the holder of this Note may be thereby modified, as set forth in Section 14.3(b) (Amendments and Waivers) of the Facility Agreement and the other applicable provisions of the Transaction Documents.
All payments shall be made in accordance with the Facility Agreement. The Borrower waives presentment and demand for payment, notice of dishonor, protest and notice of protest under the UCC or any Applicable Law. The Borrower agrees to make all payments under this Note without setoff, recoupment or deduction and regardless of any counterclaim or defense.
A Event of Default under Section 13.1 (Events of Default) of the Facility Agreement shall constitute a default under this Note, and, following an Event of Default, the Secured Obligations (including the obligations represented by this Note) may be declared (or, in certain circumstances, may automatically become) immediately due and payable in the manner, and with the effect, provided in Section 13.2(a) (Acceleration, Etc.), and the other applicable provisions, of the Facility Agreement.
This Note has been negotiated and delivered to the Lender, and is payable, in the State of New York. This Note shall be governed by and construed and enforced in accordance with, the laws of the State of New York, excluding any conflicts of law rules or principles that would cause the application of the laws of any other jurisdiction.
[SIGNATURE PAGES FOLLOW]
In witness whereof, the undersigned has executed this Secured Revolving Promissory Note as of the day and year first above written.
DePalma Financing SPV I LLC
As Borrower
By: /s/ Michael Hutchby
Name: Michael Hutchby
Title: Chief Financial Officer
Signature Page to Secured Revolving Promissory Note
Schedule of Advances and Repayments
| Date of Advance or Repayment | Principal Amount of Advance | Principal Amount of Repayment | Outstanding Principal Amount |
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EX-10.4
Certain confidential information contained in this document, marked by “[***]”, has been omitted pursuant to Item 601(b)(10)(iv) of Regulation S-K because it is both (i) not material and (ii) is the type of information that the Company treats as private or confidential. Certain schedules (or similar attachments) also marked by “[***]” have been omitted pursuant to Item 601(a)(5) of Regulation S-K.
EXECUTION COPY
Purchase and Contribution Agreement
between
DePalma Acquisition I LLC
as the Seller
and
DePalma Financing SPV I LLC
as the Purchaser
Dated as of December 30, 2025
Table of Contents
Article 1 Definitions and Usage
Section 1.1 Certain Definitions ..........................................................................................................................2
Section 1.2 Other Defined Terms ......................................................................................................................4
Section 1.3 Usage ..............................................................................................................................................4
Article 2 Conveyance of Receivables
Section 2.1 Conveyance of Receivables .............................................................................................................5
(a) Initial Receivables .......................................................................................................................................................5
(b) Subsequent Receivables .............................................................................................................................................5
(c) Delivery of Receivable Files ........................................................................................................................................5
Section 2.2 Consideration for Transfers ............................................................................................................5
(a) Payment of Purchase Price ........................................................................................................................................5
(b) Election to Treat as Capital Contribution ..................................................................................................................6
Section 2.3 Conditions ......................................................................................................................................6
Section 2.4 Pledge of Transferred Receivables .................................................................................................7
Section 2.5 No Assumption of Funding Obligations ..........................................................................................7
.
(a) Obligation to Correct, Cure or Repurchase Affected Receivables .............................................................................7
(b) Right to Repurchase Receivables ...............................................................................................................................7
Section 2.7 Servicing Released Sale ..................................................................................................................7
Section 2.8 Nature of the Transfers ..................................................................................................................7
(a) Intent .........................................................................................................................................................................7
(b) Savings Clause ............................................................................................................................................................8
(c) Actions by Seller .........................................................................................................................................................8
(d) Records to Reflect Transfers ......................................................................................................................................8
(e) Treatment of Transfers ..............................................................................................................................................8
Section 2.9 Perfection .......................................................................................................................................8
Article 3 Representations, Warranties and Covenants; Remedies for Breach
Section 3.1 Representations, Warranties and Covenants of the Seller .............................................................9
Section 3.2 Representations and Warranties of the Seller Relating to the Transferred Receivables ..............14
(a) Perfected Security Interest ........................................................................................................................................14
(b) Eligible Receivable .....................................................................................................................................................14
(c) Reasonably Equivalent Value ....................................................................................................................................14
(d) Payments ...................................................................................................................................................................14
(e) Schedule ....................................................................................................................................................................14
(f) Servicing ....................................................................................................................................................................14
Section 3.3 Remedies for Breach .....................................................................................................................14
(a) Correct, Cure or Purchase Affected Receivables ......................................................................................................14
(b) Sole Liability ..............................................................................................................................................................15
Section 3.4 Representations and Warranties of the Purchaser .......................................................................15
Section 3.5 Procedure to Repurchase or Replace Affected Receivables or Repurchase Optional Repurchase Receivables ...................................................................................................................................16
(a) Consideration ...........................................................................................................................................................16
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(b) Delivery of Updated Information for Monthly Settlement Report ..........................................................................16
(c) Repurchase or Replacement of Affected Receivables; Optional Repurchases ..........................................................16
(d) Release of Receivable File ..........................................................................................................................................17
Article 4 Additional Covenants of the Seller
Section 4.1 Performance and Compliance........................................................................................................ 17
Section 4.2 Preservation of Existence, Etc........................................................................................................ 17
Section 4.3 Maintenance of Properties............................................................................................................ 17
Section 4.4 Payment of Obligations................................................................................................................. 17
Section 4.5 Audits and Inspection.................................................................................................................... 17
Section 4.6 Taxes.............................................................................................................................................. 17
Section 4.7 Change of Control.......................................................................................................................... 18
Section 4.8 Independent Managers, Etc........................................................................................................... 18
Section 4.9 Compliance with Laws.................................................................................................................... 18
Section 4.10 Books and Records .........................................................................................................................18
Section 4.11 Transactions with the Purchaser ....................................................................................................18
Section 4.12 Confidentiality ................................................................................................................................19
Section 4.13 Restriction on Indebtedness ..........................................................................................................19
Section 4.14 ERISA ..............................................................................................................................................19
Article 5 Indemnification
Section 5.1 Indemnification .............................................................................................................................19
Section 5.2 Certain Losses Not Indemnified ....................................................................................................22
Article 6 Termination
Section 6.1 Termination ..................................................................................................................................22
Article 7 Miscellaneous Provisions
Section 7.1 Amendments, Etc. .........................................................................................................................23
Section 7.2 Successors and Assigns; Consent to Assignment of Transferred Assets by Purchaser .................23
Section 7.3 Counterparts .................................................................................................................................23
Section 7.4 Governing Law ..............................................................................................................................23
Section 7.5 Nonpetition Covenant ..................................................................................................................23
Section 7.6 Survival .........................................................................................................................................24
Section 7.7 Notices ..........................................................................................................................................24
Section 7.8 Third-Party Beneficiary .................................................................................................................24
Section 7.9 Limited Recourse ..........................................................................................................................24
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Schedules
Schedule 1 Schedule of Principal Places of Business and Chief Executive Offices
Schedule 2 Seller Prior Names
Schedule 3 Lockbox Account
Exhibits
Exhibit A Form of Assignment
Exhibit B Initial Assignment
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- Purchase and Contribution Agreement
This Purchase and Contribution Agreement (as amended, restated, supplemented or otherwise modified from time to time, this "Agreement") is dated as of December 30, 2025 (the "Closing Date"), between DePalma Acquisition I LLC, a Delaware limited liability company ("DPA 1"), as the transferor hereunder (the "Seller"), and DePalma Financing SPV I LLC, a Delaware limited liability company (the "Purchaser," and, together with the Seller, the "Parties," and each, a "Party"), as the transferee.
- Preliminary Statements
The Seller and its Affiliate, DePalma Acquisition II, LLC, a Delaware limited liability company ("DPA 2"), have acquired, and may from time to time hereafter acquire, certain Medallion Loans, consisting of Medallion Loans, directly or indirectly, from third-party originators and restructured such loans pursuant to the MRP+ Program.
The Purchaser is a special-purpose entity that is 100.00% beneficially owned by the Seller and has been established to, among other things, purchase and otherwise acquire Medallion Loans and Other Transferred Property, and become the beneficiary of the MRP+ Program with respect to such Medallion Loans.
The Seller wishes, from time to time, to offer to sell and contribute Medallion Loans and Other Transferred Property to the Purchaser, and the Purchaser desires to procure such Medallion Loans and Other Transferred Property from the Seller (certain of which the Seller may acquire, directly or indirectly, from DPA 2).
The Purchaser intends to finance the acquisition of Medallion Loans and Other Transferred Property from the Seller through borrowings under the Receivables Loan and Security Agreement, dated as of the Closing Date (as amended, restated, supplemented or otherwise modified from time to time, the "Loan Agreement"), among the Purchaser, DPA 1, as Servicer, the financial institutions from time to time party thereto, as "Lenders" thereunder (the "Lenders"), and DZ BANK AG Deutsche Zentral-Genossenschaftsbank, New York Branch, as "Agent" thereunder (together with its successors and assigns, in such capacity, the "Agent").
This Agreement is the "Purchase Agreement" referred to in the Loan Agreement, and is a "Transaction Document" under the Loan Agreement.
Now, therefore, in consideration of the foregoing premises, the Parties, intending to be legally bound, hereby agree as follows:
- Definitions and Usage
- Certain Definitions. Unless otherwise defined in this Agreement, the following capitalized terms shall have the following meanings:
"Affected Receivable" has the meaning set forth in Section 3.3(a) (Correct, Cure or Purchase Affected Receivables) below.
"Affiliated Transfer Documents" means, with respect to any Medallion Loan or related Other Transferred Property that has been acquired by the Seller from any other Person (including, without limitation, DPA 2) following the restructuring of such Medallion Loan, any purchase agreement, contribution agreement or other documentation pursuant to which the Seller (directly or indirectly) acquired such Medallion Loan or related Other Transferred Property.
"Aggregate Purchase Price" has the meaning specified in Section 2.2(a) (Payment of Purchase Price) below.
"Assignment" means:
- with respect to the Initial Receivables, the Initial Assignment; and
- with respect to any Subsequent Receivables or Subsequent Transfer Date, the applicable Subsequent Assignment.
"Federal Reserve Board" means the Board of Governors of the Federal Reserve System, or any successor thereto or to the functions thereof.
"Initial Assignment" has the meaning specified in Section 2.1(a) (Initial Receivables) below.
"Initial Receivables" has the meaning specified in Section 2.1(a) (Initial Receivables) below.
"Medallion Loan Documents" means, with respect to any Medallion Loan, each of the documents to be included in the related Receivable File pursuant to the Custodial Agreement (regardless of whether such document has been delivered to the Custodian under the Custodial Agreement).
"Medallion Loan UCC 1" has the meaning specified in the Custodial Agreement.
"Medallion Loan UCC Assignments" has the meaning specified in the Custodial Agreement.
"Opinion of Counsel" means one or more written opinions of counsel who may be an employee of or counsel to the Seller or the Servicer, as applicable, which counsel shall be reasonably acceptable to the Agent.
"Optional Repurchase" has the meaning specified in Section 2.6(b) (Right to Repurchase Receivables) below.
"Optional Repurchase Receivables" has the meaning specified in Section 2.6(b) (Right to Repurchase Receivables) below.
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"Other Transferred Property" means, with respect to any Transferred Receivable, all right, title and interest in, to and under each the following, to the extent related to such Transferred Receivable:
- the Medallion Loan Agreement and the other Medallion Loan Documents;
- Medallion Collateral (including, without limitation, all rights relating to such Transferred Receivable under the MRP+ Program and the MRP+ Program Documents);
- Records;
- the Receivable File;
- Affiliated Transfer Documents;
- all Collections received (or payable) on or after the Transfer Date;
- all present and future claims, demands, causes and choses in action in respect of such Transferred Receivable or any or all of the foregoing; and
- all proceeds of any of the foregoing.
"Purchase Price" means, for each Transferred Receivable (together with Other Transferred Property), shall be the Outstanding Balance of such Transferred Receivable on the Transfer Date plus accrued interest to but not including the Transfer Date.
"Receivable File" has the meaning specified in the Custodial Agreement.
"Records" means, with respect to any Transferred Receivable, the underwriting (and restructuring) file and payment history maintained by the Seller or the Servicer with respect to such Transferred Receivable and the related Obligor.
"Repurchase Amount" has the meaning set forth in Section 3.3(a) (Correct, Cure or Purchase Affected Receivables) below.
"Repurchase Cure Date" has the meaning set forth in Section 3.3(a) (Correct, Cure or Purchase Affected Receivables) below.
"Signature Law" has the meaning set forth in Section 7.3 (Counterparts) below.
"Specified Documents" has the meaning specified in the Custodial Agreement.
"Subsequent Assignment" has the meaning specified in Section 2.1(b) (Subsequent Receivables) below.
"Subsequent Receivables" has the meaning specified in Section 2.1(b) (Subsequent Receivables) below.
"Subsequent Transfer Date" has the meaning specified in Section 2.1(b) (Subsequent Receivables) below.
| 3 | Purchase and Contribution Agreement |
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"Transfer" means to sell, contribute, transfer, assign, set over and convey, and "Transfers" and "Transferred" have meanings correlative to the foregoing.
"Transfer Date" means, in the case of:
- any Initial Receivable, the Closing Date; or
- any Subsequent Receivable, the Subsequent Transfer Date on which such Subsequent Receivable is Transferred (or purported to be Transferred) pursuant to Section 2.1(b) (Subsequent Receivables) below.
"Transferred Assets" means, collectively, (a) the Transferred Receivables (or any of them, as the context may require), (b) the Other Transferred Property with respect to such Transferred Receivables, and (c) all proceeds of the any of the foregoing. For the avoidance of doubt, upon the repurchase or replacement, or Optional Repurchase (as applicable), by the Seller of an Affected Receivable or an Optional Repurchase Receivable pursuant to this Agreement, such Affected Receivable or Optional Repurchase Receivable, as the case may be, shall automatically, and without further action, cease to be a Transferred Receivable, and such Affected Receivable or Optional Repurchase Receivable, as the case may be, and the Other Transferred Property with respect thereto shall automatically, and without further action, cease to be Transferred Assets.
"Transferred Receivables" means, collectively, the Initial Receivables and the Subsequent Receivables.
- Other Defined Terms. Capitalized terms used herein that are not otherwise defined in this Agreement (including, without limitation, the terms "Affiliate," "Applicable Law," "Borrower LLC Agreement," "Borrowing Base," "Business Day," "Change of Control," "Code," "Collection Account," "Collections," "Credit and Collection Policy," "Custodial Agreement," "Custodian," "Default," "Early Amortization Event," "Eligible Receivable," "Eligible Receivables Balance," "ERISA," "ERISA Affiliate," "ERISA Event," "Event of Default," "Final Settlement Date," "GAAP," "Governmental Authority," "Indebtedness," "Independent Managers," "Insolvency Event," "Insolvency Laws," "Investment Company Act," "Lien," "Loan Enhancement Agreement Assignment," "Loan Enhancement Agreement Joinder," "Lockbox Account," "Lockbox Account Bank," "Material Adverse Effect," "MCC," "MCC Entities," "MCC Entity," "Medallion Collateral," "Medallion Loans," "Medallion Loan Agreement," "Monthly Settlement Report," "MRP+ Payoff Amount," "MRP+ Program," "MRP+ Program Documents," "MRP+ Program Recoveries," "Obligor," "Other Related Person," "Outstanding Balance," "Person," "Pledged Collateral," "Receivables Schedule," "Remittance Period," "Reporting Date," "Required Lenders," "Secured Obligations," "Secured Parties," "Secured Party," "Servicer," "Servicer Default," "Servicing Agreement," "Settlement Date," "Solvent," "State," "Sub‑Servicer," "Subsidiary," "Supplemental Loan Deficiency Guaranty," "Taxes," "Transaction Documents" and "UCC") shall have the meanings assigned to them in the Loan Agreement.
- Usage. The rules of construction and usage set forth in Section 1.2 (Usage) of the Loan Agreement shall apply to this Agreement.
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- Conveyance of Receivables
- Conveyance of Receivables.
- Initial Receivables. Pursuant to the Assignment, dated as of as of December 15, 2025, a copy of which is attached as Exhibit B (Initial Assignment) to this Agreement (the "Initial Assignment"), the Seller has contributed and assigned to the Purchaser, and, as of the Closing Date, the Seller hereby Transfers to the Purchaser, without recourse (except as expressly provided herein), and the Purchaser hereby acquires from the Seller, as a contribution of capital, each of the Medallion Loans identified in the Receivables Schedule attached as Schedule I (Medallion Loans) to the Initial Assignment (the "Initial Receivables"), (ii) all Other Transferred Property in respect thereof, and (iii) all proceeds of any of the foregoing (but, in each case, for the avoidance of doubt, no funding or other monetary obligations thereunder).
- Subsequent Receivables. On the terms and subject to the conditions set forth in this Agreement, the Seller, on any applicable Business Day so designated by the Seller for such purpose (any such Business Day, a "Subsequent Transfer Date"), hereby Transfers to the Purchaser, without recourse (except as expressly provided herein), and the Purchaser hereby purchases and acquires from the Seller, in each case, as of the applicable Transfer Date, all of the Seller's right, title and interest in, to and under (i) the Medallion Loans identified on Schedule A (Receivables) to the related assignment in the form of Exhibit A (Form of Assignment) hereto (such Medallion Loans, with respect to any Transfer Date, the "Subsequent Receivables," and such assignment, the "Subsequent Assignment"), (ii) all Other Transferred Property in respect thereof (but, for the avoidance of doubt, no obligations thereunder), and (iii) all proceeds of any of the foregoing (but, in each case, for the avoidance of doubt, no funding or other monetary obligations thereunder).
- Delivery of Receivable Files. In connection with each Transfer Date, the Seller shall deliver to the Custodian (and the Purchaser hereby directs the Seller to deliver, on its behalf, to the Custodian) the Receivable File (as defined in the Custodial Agreement) for each Transferred Receivable and the time, and in the manner, specified in Section 3 of the Custodial Agreement, and take all other actions required to satisfy the conditions specified in Section 2.3 (Conditions) below.
- Consideration for Transfers.
- Payment of Purchase Price. In exchange for the Transfer of Transferred Assets, pursuant to Section 2.1 (Conveyance of Receivables) above, on any Transfer Date, the Purchaser shall remit, as consideration, to the Seller, on such Transfer Date, an amount equal to the aggregate Purchase Price of such Transferred Assets (with respect to such Transfer Date, the "Aggregate Purchase Price"); provided, however, that, to the extent that the Aggregate Purchase Price with respect to any Transfer Date exceeds the amount of cash available to the Purchaser to pay such Aggregate Purchase Price on such Transfer Date, such excess shall not be paid in cash, but instead the Seller shall be deemed to have made a capital contribution to the Purchaser of Transferred Assets having an aggregate Purchase Price equal to the otherwise unpaid portion of the Aggregate Purchase Price for such Transfer Date, with the result that the Aggregate Purchase Price for the Transferred Assets Transferred by the Seller to the Purchaser
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- hereunder on any Transfer Date shall be deemed to have been paid in full on such date. The Purchaser and the Seller agree that the Purchase Price paid (or deemed paid) by Purchaser for each Transferred Asset that is Transferred on any Transfer Date represents and shall represent fair and reasonably equivalent value for such Transferred Asset as of such date.
- Election to Treat as Capital Contribution. Notwithstanding anything to the contrary in Section 2.2(a) (Payment of Purchase Price) above, on any Transfer Date, the Seller may elect to designate all or a portion of the Transferred Assets proposed to be transferred by it to the Purchaser on such date as a capital contribution to the Purchaser. The Transfers made pursuant to Section 2.1(a) (Initial Receivables) above are hereby so designated as a capital contribution.
- Conditions. The Seller's obligation to sell, and the Purchaser's obligation to purchase, the Transferred Assets described in Section 2.1 (Conveyance of Receivables) above on any Transfer Date, shall be subject to the satisfaction, or waiver by the Purchaser (with the prior written consent of the Agent), of each of the conditions set forth below on or prior to the related Transfer Date:
- The Seller shall have executed and delivered to the Purchaser, with a copy to the Servicer and the Agent, an Assignment with respect to the Transferred Assets to be purchased or acquired on such Transfer Date;
- As of such Transfer Date, (i) the Seller shall be Solvent and shall not fail to remain Solvent as a result of the transfer of the Transferred Assets on such Transfer Date, and (ii) such transfer shall not have been made with actual intent to hinder, delay or defraud any Person;
- No Default, Event of Default, Servicer Default or Early Amortization Event (or event that, with notice or lapse of time, would constitute a Servicer Default or Early Amortization Event) shall have occurred and be continuing as of such Transfer Date;
- The applicable Medallion Loan UCC 1 and Medallion Loan UCC Assignments shall have been filed and delivered to the Custodian in accordance with the Custodial Agreement;
- Each of the representations and warranties made pursuant to Section 3.2 (Representations and Warranties of the Seller Relating to the Transferred Receivables) below with respect to the Transferred Assets shall be true and correct as of such Transfer Date;
- The Seller shall have taken all such actions required to maintain (i) the ownership interest of the Purchaser in the Transferred Assets, and (ii) the first-priority perfected security interest of the Agent in the Transferred Assets pursuant to the Loan Agreement;
- The Seller shall have delivered to the Custodian, on behalf and at the direction of the Purchaser, the Specified Documents, and such other documents as the Purchaser is required to deliver to the Custodian as part of the Receivable File, pursuant to the terms of the Custodial Agreement; and
- There shall have been executed and delivered a Loan Enhancement Agreement Joinder, and a Loan Enhancement Agreement Assignment, which shall have been effective to assign to the Purchaser all of the rights under the MRP+ Program, with respect to such Medallion Loan (including,
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- without limitation, all rights under the Supplemental Loan Deficiency Guaranty, and the right to receive the MRP+ Program Recoveries and the MRP+ Payoff Amount).
- Pledge of Transferred Receivables. The Purchaser hereby advises the Seller that, concurrently with any Transfer of Transferred Assets pursuant to Section 2.1 (Conveyance of Receivables) above, the Purchaser shall pledge to the Agent, for the benefit of the Secured Parties, such Transferred Assets. The Purchaser is deemed to have received and accepted the Transfer of the Transferred Assets hereunder in good faith and without notice or knowledge of any adverse claims or Liens (other than Permitted Liens).
- No Assumption of Funding Obligations. No Transfer made pursuant to Section 2.1 (Conveyance of Receivables) above shall result in any assumption by the Purchaser of any funding or other monetary obligation of the Seller or any other Person in connection with such Medallion Loans or Other Transferred Property or under any Medallion Loan Agreement or other agreement or instrument relating thereto.
- Repurchase of Transferred Receivables.
- Obligation to Correct, Cure or Repurchase Affected Receivables. The Seller shall, in accordance with Section 3.3 (Remedies for Breach) below, correct, cure or repurchase any Affected Receivable (as defined in Section 3.3) that it has Transferred to the Purchaser under this Agreement. There is no limitation on the number or aggregate principal amount of Affected Receivables that the Seller may be so required to correct, cure or repurchase.
- Right to Repurchase Receivables. The Seller may, from time to time, at its sole option, on any Settlement Date, upon prior written notice to the Purchaser and the Agent (with a copy to the Servicer and the Custodian) on or prior to the related Reporting Date (such notice to be included and reflected in the applicable Monthly Settlement Report), repurchase Transferred Assets from the Purchaser (each such repurchase, an "Optional Repurchase" and such Receivables repurchased or to be repurchased (as context may require) in an Optional Repurchase, "Optional Repurchase Receivables") by remitting to the Collection Account an amount equal to the Repurchase Amount with respect to such Receivables; provided that at the time of the applicable Optional Repurchase, (i) no Event of Default shall have occurred and be continuing or would occur as a result of such Optional Repurchase, (ii) no Borrowing Base Deficiency would occur as a result of such Optional Repurchase, and (iii) after giving effect such Optional Repurchase, the sum of the Repurchase Amounts of the Optional Repurchase Receivables then being repurchased, together with the sum of the Repurchase Amounts of all Optional Repurchase Receivables previously repurchased would not exceed 10.00% of the highest Eligible Receivables Balance since the Closing Date.
- Servicing Released Sale. Each Transfer is made on a servicing released basis, and, following each Transfer, the Purchaser, as the owner of the Transferred Assets shall have the right to service the same, subject to the rights and obligations of the Servicer under the Loan Agreement and the other terms and conditions of the Transaction Documents.
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- Nature of the Transfers.
- Intent. Each Transfer made pursuant to Section 2.1 (Conveyance of Receivables) above does not, and is not intended to, result in a pledge of Transferred Asset to secure a debt or other obligation of the Seller. It is the express intent of the Parties that the conveyance of all Transferred Assets by the Seller to the Purchaser on each Transfer Date will constitute, and be construed as, an absolute sale and/or contribution, and an absolute assignment, which provides Purchaser with the full benefits of ownership thereof. It is, further, not the intention of the parties that such conveyances be deemed pledges thereof or part of a secured lending transaction. The Seller and the Purchaser agree that the Transferred Assets Transferred by the Seller to Purchaser hereunder shall not be part of the Seller's estate in the event of the filing of a petition by or against the Seller under any Insolvency Law.
- Savings Clause. In the event that, notwithstanding the intent of the Parties, as described in Section 2.8(a) (Intent) above, any transfer and assignment (or purported transfer and assignment) contemplated by this Agreement or any Assignment is held to constitute a secured financing, or otherwise not to constitute an absolute transfer and assignment of all of the Seller's right, title and interest in, to and under the applicable Transferred Assets, this Agreement and each Assignment shall constitute a security agreement under Applicable Law and the Seller hereby grants to the Purchaser a security interest in the Transferred Assets, to secure an obligation equal to the sum of, for each of the Transferred Assets, the Repurchase Amount plus all accrued and unpaid interest thereon, and the payment and performance of the Seller's other obligations hereunder.
- Actions by Seller. The Seller shall not take any action inconsistent with such ownership nor claim any ownership interest in any Transferred Receivables or Other Transferred Property for any purpose whatsoever, it being understood, however, that the Seller will include such property for consolidated financial and federal and state income tax reporting.
- Records to Reflect Transfers. The Seller shall maintain (or in its capacity as Servicer under the Loan Agreement shall maintain) its computer systems so that, from time to time after any conveyance under this Agreement of Transferred Receivables, the master computer records (including any backup archives) that refer to any such Receivable shall indicate clearly the interests of Purchaser (or any subsequent assignee of Purchaser) in such Receivable and that such Receivable is owned by such Person. Indication of such Person's interest in a Transferred Receivable shall not be deleted from or modified on such computer systems until, and only until, such Receivable shall have been paid in full or repurchased in accordance with the terms of this Agreement (with payment in full of the related Repurchase Price).
- Treatment of Transfers. Other than for tax purposes, the Seller and the Purchaser each shall treat, for all purposes, the transfers effected under this Agreement as sales and contributions, as applicable, of assets to the Purchaser. The Seller agrees to reflect in its financial records, and to include a note in its audited annual financial statements, indicating that the Purchaser is a separate legal entity and the Transferred Assets are owned by the Purchaser and are not available to the creditors of the Seller.
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- Perfection.
- (a) The Seller shall (i) file (or prepare for filing), at its own expense, UCC financing statements with respect to the Transferred Receivables and Other Transferred Property in such manner and in such jurisdictions as are necessary, or as the Purchaser or its assigns (including the Agent, as pledgee of the Purchaser) may reasonably request, to perfect the Purchaser's first-priority security interest or ownership interest therein under the UCC and (ii) take any and all such other action as may be necessary or as the Purchaser or its assigns (including the Agent, as pledgee of the Purchaser) may reasonably request, to establish the Purchaser's security interest or ownership interest in the Receivables and Other Transferred Property transferred hereunder.
- Without limiting the obligations of the Seller under Section 2.9(a) above, the Seller hereby authorizes the Purchaser (and the Agent, as pledgee of the Purchaser) to file, at the sole cost and expense of the Seller, all financing statements, continuation statements, amendments to financing statements, and other instruments, in any jurisdictions and with any filing office, as the Purchaser or the Agent may determine to be necessary, advisable or prudent to perfect, make effective, continue or maintain the perfection of the assignments, transfers and security interests made and granted from time to time by the Seller to the Purchaser under Sections 2.1 (Conveyance of Receivables) and 2.8(b) (Savings Clause) above and the pledge of the Transferred Receivables to the Agent as a part of the Pledged Collateral pursuant to the Loan Agreement. Any such financing statements may describe the Transferred Assets in the same manner as described herein or may contain an indication or description of the Transferred Assets that describes such property in any other manner as the Purchaser or the Agent, as the case may be, may reasonably determine is necessary in order to ensure the perfection of such assignments, transfers and the security interests. The Seller further authorizes the Purchaser and its direct and indirect assigns (including the Agent, as pledgee of the Purchaser under the Loan Agreement, and the Agent’s permitted assigns thereunder, and, following an Event of Default and disposition of the Pledged Collateral, any successor owner or holder thereof) to file any financing statements, amendments and assignments of financing statements, continuation statements and termination statements with respect to any collateral securing the Transferred Assets.
- Representations, Warranties and Covenants; Remedies for Breach
- Representations, Warranties and Covenants of the Seller. The Seller hereby represents, warrants and covenants with and to the Purchaser on the Closing Date, as of each Transfer Date and at all other times prior to the Final Settlement Date, as follows:
- The Seller is, and at all times during the term of this Agreement will be, a limited liability company duly organized and validly existing in good standing under the laws of the jurisdiction of its formation, and is, and at all times during the term of this Agreement will be, duly qualified to do business as a foreign limited liability company in good standing under the laws of each jurisdiction where the character of its property, the nature of its business or the performance of its obligations under this
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- Agreement makes such qualification necessary, except where the failure to be so qualified and in good standing would not result in a Material Adverse Effect.
- Seller holds, and at all times during the term of this Agreement will hold, all licenses, certificates, franchises and permits from all governmental authorities necessary for the conduct of its business and has received no notice of proceedings relating to the revocation of any such license, certificate, franchise or permit, except where such failure would not result in a Material Adverse Effect.
- Seller has, and at all times during the term of this Agreement will have, all requisite power and authority under its organizational documents to restructure the Medallion Loans comprising a part of the Transferred Assets hereunder, to enter into the related Medallion Loan Agreements, to own and hold such Medallion Loans (and the related collateral and assets), to transfer and convey the Transferred Assets under this Agreement and the Assignments, to conduct its business, to execute and deliver this Agreement and all documents contemplated under this Agreement to which it is to be a party and to perform all of its obligations hereunder and thereunder.
- This Agreement and all other documents required or contemplated hereby to be executed and delivered by the Seller have been duly authorized, executed and delivered by the Seller and, assuming the due execution and delivery by the other parties hereto and thereto, constitute legal, valid and binding agreements, enforceable against the Seller in accordance with their respective terms except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforceability of creditors' rights generally and by general principals of equity (whether considered in a suit at law or in equity).
- The execution, delivery and performance by the Seller of this Agreement and any other document to be executed by the Seller in connection herewith do not and will not (i) violate any of the provisions of the organizational documents of the Seller, (ii) violate any provision of any law, governmental rule or regulation currently in effect applicable to the Seller or its properties or by which the Seller or its properties may be bound, (iii) violate any judgment, decree, writ, injunction, award, determination or order currently in effect applicable to the Seller or its properties or by which its properties are bound, (iv) conflict with, or result in a breach of, or constitute a default under, any of the provisions of any indenture, mortgage, deed of trust, contract or other instrument to which the Seller is a party or by which it is bound or (v) result in the creation or imposition of any lien upon the Receivables or Other Transferred Property Transferred by the Seller (other than Permitted Liens), which, in the case of any of the foregoing, would result in a Material Adverse Effect.
- There is no pending or, to the Seller's knowledge, threatened action, suit, proceeding or investigation before any court, administrative agency, arbitrator or governmental authority against or affecting Seller that is reasonably be expected to be adversely determined and, if so determined, would have a Material Adverse Effect.
- All written reports and other written information heretofore furnished by the Seller to the Purchaser or the Agent in connection with this Agreement, is accurate, in all material respects, as of its date.
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- The Seller will not be engaged as one of its important activities in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation T, U or X promulgated by the Federal Reserve Board), and no proceeds of any sale will be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock or for any purpose, in each case that violates, or is inconsistent with, the provisions of Regulation T, U and X promulgated by the Federal Reserve Board.
- The Seller is not an "investment company," or a company "controlled" by an "investment company," that is required to register under the Investment Company Act.
- The consummation of the transactions provided for in this Agreement and compliance by the parties hereto with provisions hereof will not involve a prohibited transaction within the meaning of ERISA or Section 4975 of the Code.
- There are no material judgment, ERISA or tax lien filings against the Seller.
- No consent, approval, order or authorization by, and no filing with or notice to, any court or other governmental authority in respect of, the Seller is required in connection with the authorization, execution, delivery or performance by the Seller of this Agreement or any of the other documents or transactions contemplated hereunder, the failure of which to obtain or give would have a Material Adverse Effect, except for such consents, approvals, orders, authorizations, filings or notices that have been duly obtained, taken or made.
- As of the Closing Date, (i) the Seller was not in default under any agreement, contract, instrument or indenture to which it is a party or by which it or its properties is or are bound, or any order of any court, administrative agency, arbitrator or governmental body, that would have a Material Adverse Effect. As of each Transfer Date, the Seller has performed all obligations to be performed by it under the Medallion Loan Agreements and MRP+ Program Documents relating to the Receivables Transferred by the Seller on such Transfer Date under this Agreement, except to the extent that any failure to perform such obligations has not had a Material Adverse Effect.
- There is no pending or, to the Seller's knowledge, threatened in writing action, suit, proceeding or investigation before any court, administrative agency, arbitrator or governmental body against or affecting the Seller that is reasonably expected to be adversely determined and, if so determined, would affect (i) the financial or other condition, business or operations of the Seller; (ii) the ability of the Seller to perform its obligations under, or the validity or enforceability of, this Agreement or any other documents or transactions contemplated hereunder; (iii) any collateral, if any, securing a Receivable Transferred by the Seller under this Agreement or (iv) the Agent's ability to foreclose or otherwise enforce the Receivables Transferred by the Seller under this Agreement, and which in each such case would result in a Material Adverse Effect.
- The Seller (i) has filed all tax returns which are required to be filed by it, (ii) is not in default in the payment of any taxes levied or assessed against it or any of its assets and (iii) is not in default under any judgment, order, decree, rule or regulation of any court, arbitrator, administrative agency or other governmental authority to which it may be subject, in each case which singly or in the aggregate would result in a Material Adverse Effect.
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- The Seller is solvent, has adequate capital to carry on its business and purpose and will not be rendered insolvent by the transfers contemplated hereby. The Seller is not engaged, or about to engage, in a business for which its property represents an unreasonably small amount of capital.
- The principal place of business and chief executive office of the Seller is as set forth on Schedule 1 (Schedule of Principal Places of Business and Chief Executive Offices) to this Agreement (or in such other location as the Seller may notify the Purchase in writing the Purchaser, with a copy to the Servicer and the Agent), and the Seller is not conducting any business under any name other than as provided herein. Schedule 2 (Seller Prior Names) to this Agreement sets forth all legal names of the Seller during the last five years.
- Seller shall maintain its existence and not merge into any other Person or convey, transfer or lease substantially all of its assets as an entirety to any Person unless the Person formed by such consolidation or into which Seller has been merged or Person (or the general partner of such Person) that acquires substantially all the assets of Seller is organized under the laws of a state in the United States, can lawfully perform the obligations of Seller hereunder and executes and delivers to the Purchaser an agreement which contains an assumption by such successor entity of the due and punctual performance and observance of each covenant and condition to be performed or observed by Seller under this Agreement and all other documents relating to the transactions contemplated hereby to which Seller is a party. Following any such consolidation or merger, conversion or similar event concerning Seller, Seller shall deliver an Opinion of Counsel to the Purchaser and Agent concerning the maintenance of the security interest granted by the Seller to the Purchaser under this Agreement.
- If the Seller desires to make any change in its name or state of formation, the Seller shall give the Purchaser written notice thereof at least 25 days prior to such change and shall provide to the Purchaser, for filing by the Purchaser, such financing statements or amendments as may be necessary to continue the perfection of the Purchaser's ownership interest in the Transferred Assets sold and conveyed by the Seller to the Purchaser under this Agreement.
- Immediately prior to the Transfer of any Transferred Assets hereunder, Seller had (or will have), and immediately following the acquisition thereof, Purchaser has (or will have), good and marketable title to such Transferred Assets, free and clear of any Liens, other than Permitted Liens.
- No Transfer of any Transferred Assets to the Purchaser pursuant to this Agreement contravenes or conflicts with, or requires the consent or approval of, or notice to, any Person (other than consent or approvals which have been received or notices which have been given) under, any Applicable Law.
- Seller shall defend the right, title and interest of Purchaser in, to and under the Medallion Loans and Other Transferred Property transferred by Seller to Purchaser hereunder against all claims of third parties claiming through or under Seller.
- This Agreement creates in favor of Purchaser a valid and continuing security interest (as defined in the applicable UCC) in the Transferred Assets that are Transferred (or purported to be Transferred) hereby by the Seller, which security interest is prior to all other liens against the Seller and is enforceable against creditors of and purchasers from the Seller.
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- No later than each Transfer Date, the Seller shall have filed or submitted for filing a UCC-3 financing statement, effecting the assignment of the Medallion Loan UCC‑1 to the Purchaser, and specifying the file number of the Medallion Loan UCC‑1, naming the Seller, as assignor secured party, and the Purchaser, as assignee secured party, with respect to each related Transferred Receivable.
- The UCC financing statement to be filed against the Seller, a copy of which has been provided to the Seller by the Purchaser, correctly states the Seller's legal name and jurisdiction of formation, and the collateral description therein accurately describes the Transferred Assets that Transferred (or purported to be Transferred) to the Purchaser under this Agreement by the Seller, whether now existing or hereafter arising.
- On or before each Transfer Date, the Seller shall, as requested herein by the Purchaser and in accordance with Section 3(a) of the Custodial Agreement, transmit or deliver (or cause to be transmitted or delivered) to the Custodian the Receivable File for all Transferred Assets that the Seller is Transferring to the Purchaser on such Transfer Date.
- The Seller shall, whenever and so often as reasonably requested by the Purchaser (or the Agent, as pledgee of the Purchaser) at the sole cost and expense of the Seller, promptly execute and deliver, or cause to be executed and delivered, all such other and future instruments, documents or assurances, as may be reasonably requested and required to vest and maintain vested in the Purchaser, and to transfer to the Purchaser, valid and perfected ownership of, the Medallion Loans and Other Transferred Property under this Agreement, free and clear of any Liens (other than Permitted Liens).
- All assumptions of fact set forth in the legal opinions with respect to "true sale" and substantive non-consolidation delivered by Reed Smith LLP on the Closing Date were, to the extent pertaining to Seller and the conduct of its business with the Purchaser or any other Affiliate, true and correct, in all material respects, as of the Closing Date.
- (i) There will be no funding or other monetary obligations of the Seller under any Receivables conveyed to the Purchaser hereunder after the Closing Date remaining to be performed (and the exercise by the Purchaser of any of its rights thereunder or hereunder shall not relieve the Seller of such funding or other monetary obligations if they do exist) and (ii) there will not be payable any taxes, including, without limitation, sales, excise and personal property taxes, in connection with any Receivables conveyed to the Purchaser hereunder after the Closing Date, except for income and similar taxes in connection with any Receivables payable by the Seller for periods on and prior to the Closing Date or other Transfer Date, as applicable, and payable by the Purchaser for periods after the Closing Date or other Transfer Date, as applicable.
- The Seller is in compliance, in all respects, with the terms of the MRP+ Program Documents.
- No Transferred Asset has been intentionally selected by the Seller in a manner that is adverse to the Secured Parties.
- The Seller has instructed all Obligors on the Transferred Receivables to remit payments to the Lockbox Account. The name and address of the Lockbox Account Bank, together with the account number of the Lockbox Account at the Lockbox Account Bank, is specified in Schedule 3 (Lockbox Account)
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- to this Agreement. The Lockbox Account (or the Collection Account) is the only account to which Collections on any Transferred Receivables are sent. The Seller has not granted (or caused or permitted the Borrower to grant) to any Person an interest in the Lockbox or the Lockbox Account, except as contemplated by the Transaction Documents.
It is understood and agreed that the representations, warranties and covenants of the Seller set forth in this Section 3.1 shall survive (x) the conveyance of the Transferred Receivables and Other Transferred Property by the Seller to the Purchaser under this Agreement and (y) the pledge of the Medallion Loans and Other Transferred Property to the Agent, for the benefit of the Secured Parties, under the Loan Agreement and that the covenants shall be continuing until this Agreement is terminated in accordance with Section 6.1 (Termination) below.
- Representations and Warranties of the Seller Relating to the Transferred Receivables. The Seller hereby represents and warrants to the Purchaser, on and as of each Transfer Date, with respect to each Transferred Receivable that is Transferred (or purported to be Transferred) to the Purchaser, pursuant to Section 2.1 (Conveyance of Receivables) above, on such Transfer Date:
- Perfected Security Interest. Such Transferred Receivable, together with the Other Transferred Property with respect thereto, is, immediately prior to the Transfer thereof to Purchaser, owned by the Seller, free and clear of any Lien other than the Lien created hereby and Permitted Liens described in clauses (b) and (d) of the definition thereof.
- Eligible Receivable. Such Transferred Receivable was, at the time of its sale to the Purchaser pursuant to Section 2.1 (Conveyance of Receivables) above, an Eligible Receivable.
- Reasonably Equivalent Value. Such Transferred Receivable, together with the Other Transferred Property with respect thereto, was acquired by the Purchaser from the Seller, pursuant to this Agreement, in exchange for cash and/or non-cash consideration, pursuant to Section 2.2 (Consideration for Transfers) above, in amount that, in the aggregate, constitutes fair market value, fair consideration and reasonably equivalent value.
- Payments. Any payments made on such Transferred Receivable have been applied as required by the applicable Medallion Loan Agreement or as otherwise required by Applicable Law and are reflected (if applicable) in the Outstanding Balance set forth on the applicable Receivables Schedule.
- Schedule. The information, with respect to such Transferred Receivable and Other Transferred Property, set forth on Schedule A (Receivables) to the applicable Assignment is true and correct in all material respects.
- Servicing. Such Transferred Receivable is being, and has been, serviced in accordance with the provisions of the Servicing Agreement and the Credit and Collection Policy.
- Remedies for Breach.
- Correct, Cure or Purchase Affected Receivables. Upon the discovery by, or notice from the Purchaser or the Agent to, the Seller of a breach, with respect to any Transferred Receivable, of
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- one or more of the representations and warranties of the Seller in clause (a) (Perfected Security Interest) or (b) (Eligible Receivable) of Section 3.2 (Representations and Warranties of the Seller Relating to the Transferred Receivables) above as of the related Transfer Date (any such Transferred Receivable, an "Affected Receivable"), the Seller shall either (1) correct or cure such breach on or prior to the later of (x) five Business Days following the date such breach was Reporting Date relating to the Remittance Period during which such breach was discovered (the "Repurchase Cure Date") or (2) repurchase such Affected Receivable from Purchaser (or its assignee), by depositing the related Outstanding Balance of such Affected Receivable plus all accrued and unpaid interest on such Affected Receivable to but not including the date of such repurchase (the "Repurchase Amount"), to the Collection Account in accordance with Section 3.5 (Procedure to Repurchase or Replace Affected Receivables or Repurchase Optional Repurchase Receivables) below on or prior to the Settlement Date that immediately follows the Repurchase Cure Date or (3) replace such Affected Receivable with one or more Eligible Receivables with an aggregate Outstanding Balance at least equal to the Outstanding Balance of such Affected Receivable (provided that, in the case of this clause (3), no Early Amortization Event shall have occurred, and all of the terms, conditions and other procedures set forth in this Agreement and the other Transaction Documents have been followed with respect to the Transfer of the replacement Transferred Receivables have been followed in a manner reasonably acceptable to the Agent). The Seller and the Purchaser shall give each other, the Servicer, and the Agent prompt written notice following discovery by it of any breach of a representation made by Seller pursuant to clause (a) (Perfected Security Interest) or (b) (Eligible Receivable) of Section 3.2 (Representations and Warranties of the Seller Relating to the Transferred Receivables) above (and Agent shall deliver a copy of any such notice received by it to the Lenders). Such written notice shall describe the breach with reasonable particularity. The Servicer or the Agent may also give written notice of the breach, and such notice, upon delivery to the Seller, shall constitute notice of such breach under this Section 3.3.
- Sole Liability. It is understood and agreed that the obligation to correct, cure, repurchase or replace any Affected Receivable, and any related indemnification obligations, under this Agreement shall constitute the sole liability of the Seller under this Agreement with respect to such breach of the representations or warranties in clause (a) (Perfected Security Interest) or (b) (Eligible Receivable) of Section 3.2 (Representations and Warranties of the Seller Relating to the Transferred Receivables) above, whether asserted by the Purchaser or by the Agent. For the avoidance of doubt, the representations and warranties of the Seller in Section 3.2 (Representations and Warranties of the Seller Relating to the Transferred Receivables) above only pertain to the characteristics of the Transferred Receivables on the related Transfer Date, and any change in any of the characteristics of any Transferred Receivable following the related Transfer Date which results in the failure of such Transferred Receivable to continue to be an Eligible Receivable shall not constitute a breach of such representations and such Transferred Receivable shall not constitute an Affected Receivable or otherwise serve as a basis for recourse by the Purchaser or any other Person against the Seller.
- Representations and Warranties of the Purchaser. The Purchaser represents and warrants to the Seller, as of the Closing Date and as of each Transfer Date, as follows:
- The execution, delivery and performance of this Agreement by it are within its powers and have been duly authorized by all necessary limited liability company action on its part.
| 15 | Purchase and Contribution Agreement |
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- The execution, delivery and performance by the Purchaser of this Agreement and any other document to be executed by the Purchaser in connection herewith or therewith do not and will not (i) violate any of the provisions of the organizational documents of the Purchaser; (ii) violate any of the provisions of the organizational documents of the Purchaser; (iii) violate any provision of any law, governmental rule or regulation currently in effect applicable to the Purchaser or its properties or by which the Purchaser or its properties may be bound or affected; (iv) violate any judgment, decree, writ, injunction, award, determination or order currently in effect applicable to the Purchaser or its properties or by which its properties are bound or affected or (v) result in the creation or imposition of any lien upon the Transferred Receivables or Other Transferred Property sold and conveyed to the Purchaser, which, in the case of any of the foregoing, would have a Material Adverse Effect.
- This Agreement and all other documents required or contemplated hereby to be executed and delivered by the Purchaser have been duly authorized, executed and delivered by the Purchaser and, assuming the due execution and delivery by the other parties hereto and thereto, constitute legal, valid and binding agreements, enforceable against the Purchaser in accordance with their respective terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforceability of creditors' rights generally and by general principals of equity (whether considered in a suit at law or in equity).
- Procedure to Repurchase or Replace Affected Receivables or Repurchase Optional Repurchase Receivables. The Seller, in repurchasing or replacing an Affected Receivable as required by Section 3.3 (Remedies for Breach) above, or repurchasing an Optional Repurchase Receivable on a Settlement Date, shall comply with the following, as applicable:
- Consideration. The Seller shall pay (or cause to be paid) the applicable Repurchase Amount for such Affected Receivable Optional Repurchase Receivable being repurchased as of the date of repurchase. Such Repurchase Amount shall be remitted in immediately available funds by the Seller to the Collection Account.
- Delivery of Updated Information for Monthly Settlement Report. The Seller shall deliver to the Servicer and the Agent, on or before each Reporting Date, (i) a list (to be included in the applicable Monthly Settlement Report) of the Affected Receivables and/or Optional Repurchase Receivables (if any) to be purchased by the Seller on or prior to the immediately-succeeding Settlement Date and (ii) an updated Receivables Schedule with such Affected Receivables and/or Optional Repurchase Receivables (if any) removed. The Seller hereby represents as to the accuracy of each such list and schedule as of such Reporting Date and Settlement Date.
- Repurchase or Replacement of Affected Receivables; Optional Repurchases. With respect to (i) each Affected Receivable to be repurchased or replaced by Seller pursuant to this Agreement and (ii) each Optional Repurchase Receivable, upon the deposit by (or on behalf of) Seller of the Repurchase Amount into the Collection Account (or, in the case of a replacement of an Affected Receivable, upon Transfer to the Purchaser of the related replacement Transferred Receivable or Transferred Receivables), the Agent and the Purchaser shall be deemed to have released their respective security and/or ownership interests in, and Liens on, such Optional Repurchase Receivable or Affected Receivable repurchased or replaced by Seller, as the case may be, and all Other Transferred Property with respect thereto, as contemplated by this Agreement, with no recourse, representation or warranty.
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- Purchaser shall (or shall direct its assignee to) take any actions, at the expense of Seller, that are reasonably requested by Seller to effect the repurchase by and/or re-conveyance to Seller of any such Transferred Receivable and Other Transferred Property. In addition, and without limitation of the foregoing, with respect to any Receivable purchased (or replaced) by Seller, Seller shall be entitled to any Collections received thereon on or after such deposit into the Collection Account of the Repurchase Amount therefor (or such Transfer to the Purchaser of the related replacement Receivable or Receivables).
- Release of Receivable File. With respect to each Optional Repurchase Receivable or Affected Receivable to be repurchased or replaced by Seller pursuant to this Agreement, the Seller shall be responsible for requesting the release of the related Receivable File, pursuant to, and in accordance with, Section 7 (Release of Receivable Files) of the Custodial Agreement.
- Additional Covenants of the Seller
The Seller hereby covenants and agrees, to and for the benefit of the Purchaser and the Secured Parties, that, at all times from and after the Closing Date until the Final Settlement Date:
- Performance and Compliance. At its expense, the Seller shall timely and fully perform and comply, in all material respects, with all provisions, covenants and other promises required to be observed by it under the Medallion Loan Documents, the MRP+ Program Documents and the Transaction Documents to which it is a party.
- Preservation of Existence, Etc. The Seller shall:
- preserve, renew and maintain in full force and effect its legal existence and good standing under the laws of the jurisdiction of its organization;
- take all reasonable action to maintain all rights, licenses, permits, privileges and franchises necessary or desirable in the normal conduct of its business, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect; and
- preserve or renew all of its registered patents, trademarks, trade names and service marks, the non-preservation of which could reasonably be expected to have a Material Adverse Effect.
- Maintenance of Properties. The Seller shall (a) maintain, preserve and protect all of its properties and equipment necessary in the operation of its business in good working order and condition (ordinary wear and tear excepted) and (b) make all necessary repairs thereto and renewals and replacements thereof, except (in the case of the foregoing clauses (a) and (b)) to the extent that the failure to do so could not reasonably be expected to have a Material Adverse Effect.
- Payment of Obligations. The Seller shall pay, discharge or otherwise satisfy as the same shall become due and payable, all of its obligations and liabilities, including Tax liabilities, unless the same are being contested in good faith by appropriate proceedings diligently conducted and
| 17 | Purchase and Contribution Agreement |
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- adequate reserves in accordance with GAAP are being maintained by the Seller, except to the extent that the failure to do so could not reasonably be expected to have a Material Adverse Effect.
- Audits and Inspection. The Seller shall cooperate, in all respects, with the audit, inspection, participation and other requirements set forth in Section 8.9 (Audits and Inspection) of the Loan Agreement.
- Taxes. The Seller shall pay when due all U.S. federal and other material Taxes, fees or other charges of any nature whatsoever (together with any related interest or penalties) now or hereafter imposed or assessed against the Seller or, prior to the Transfer thereof hereunder, the Transferred Assets or upon the Seller's ownership, possession, use, operation or disposition thereof or upon the Seller's rents, receipts or earnings arising therefrom. The Seller shall file, on or before the due date therefor, all personal property tax returns required to be filed by the Seller in respect of the Transferred Assets and relating to the period prior to the Transfer Date therefor. Notwithstanding the foregoing, the Seller may contest, in good faith and by appropriate proceedings, taxes for which the Seller maintain adequate reserves therefor in accordance with GAAP (and the same shall not be deemed to constitute a violation of this Section 4.6).
- Change of Control. At no time shall the Seller take any action that would result in a Change of Control.
- Independent Managers, Etc. The Seller shall, at all times, cause the Purchaser to maintain Independent Managers in accordance with Section 8.14 (Independent Managers) of the Loan Agreement and the Seller shall comply with the terms and conditions of the Borrower LLC Agreement. The Borrower LLC Agreement shall not be amended or terminated, at any time prior to the Final Settlement Date, without the prior written consent of the Agent.
- Compliance with Laws.
- The Seller shall maintain compliance in all material respects with all Applicable Law (including any law, rule or regulation with respect to the making or brokering of loans or financial accommodations), and shall, or cause its Subsidiaries to, obtain and maintain all required governmental authorizations, approvals, licenses, franchises, permits or registrations reasonably necessary in connection with the conduct of its businesses and activities, except where the failure to maintain any foreign qualification in any State could not reasonably be expected to have a Material Adverse Effect.
- The Seller shall not (i) directly or indirectly, knowingly enter into any documents, instruments, agreements or contracts with any Person listed on the OFAC Lists, (ii) conduct any business or engage in any transaction or dealing with any Blocked Person, including, without limitation, the making or receiving of any contribution of funds, goods or services to or for the benefit of any Blocked Person, (iii) deal in, or otherwise engage in any transaction relating to, any property or interests in property blocked pursuant to Executive Order No. 13224 or any similar executive order or other Anti-Terrorism Law, or (iv) engage in or conspire to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in Executive Order No. 13224 or other Anti-Terrorism Law.
| 18 | Purchase and Contribution Agreement |
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- Books and Records. The Seller shall maintain proper books of record and account, in which full, true and correct entries in conformity with GAAP consistently applied shall be made of all financial transactions and matters involving the assets and business of such the Seller.
- Transactions with the Purchaser. Other than entering into and performing its obligations under the Transaction Documents to which it is a party (including in its capacity as Servicer) and consummating the transactions contemplated therein, the Seller shall not, directly or indirectly, enter into or permit to exist any transaction of any kind between the Seller, on the one hand, and the Purchaser, on the other hand, on terms that are less favorable to the Purchaser than those that might be obtained in an arm's length transaction from a Person who is not an Affiliate of the Purchaser.
- Confidentiality. The Seller shall comply with the confidentiality obligations set forth in Section 14.16 (Confidentiality) of the Loan Agreement.
- Restriction on Indebtedness. Neither the Seller nor any Subsidiary thereof shall create, incur, assume or suffer to exist any Lien on or over property, assets or revenues, whether now owned or hereafter acquired, of the Seller consisting of loans covered by the MRP+ Program, or incur any Indebtedness that is secured or otherwise backed (directly or indirectly) by any such loans, unless, in each case, the Seller shall have first (x) obtained the prior written consent of the Agent (such consent not to be unreasonably withheld) and (y) entered into an intercreditor agreement with the Agent in form and substance reasonably satisfactory to the Agent and the Seller.
- ERISA. Neither the Seller nor any ERISA Affiliate shall permit to occur any ERISA Event that could reasonably be expected to have a Material Adverse Effect.
- Indemnification
- Indemnification. Without limiting any other rights that any such Person may have hereunder or under Applicable Law (including, without limitation, the right to recover damages for breach of contract), the Seller hereby agrees to indemnify the Purchaser and its assigns (including, from and after the time of any pledge or assignment hereof by the Purchaser to the Agent for the benefit of the Secured Parties under the Loan Agreement, each Secured Party) and each of the officers, directors, employees, agents, in-house attorneys, representatives and equity holders of any of the foregoing (each, an "Indemnified Person") from and against any and all claims, costs, expenses, damages and liabilities (including such claims, costs, expenses, damages and liabilities based on liability in tort, including strict liability in tort), including reasonable and documented out-of-pocket attorneys' fees and disbursements and other reasonable and documented out-of-pocket costs of investigation or defense (including those incurred upon any appeal) (all of the foregoing being collectively referred to as "Liabilities"), that may be instituted or asserted against or incurred by such Indemnified Person as the result of any of the following (but subject to the exclusions set forth in Section 5.2 (Certain Losses Not Indemnified) below):
- any representation or warranty made or deemed made by the Seller (or any of its officers) under or in connection with this Agreement or any other Transaction Document to which it is a party or
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- any other information or report delivered by the Seller pursuant to this Agreement or any other Transaction Document to which it is a party (including, without limitation, any representation with respect to a Transferred Receivable's classification by the Seller as an Eligible Receivable as of the Transfer Date therefor), which shall have been false or incorrect in any respect when made or deemed made or delivered;
- the failure by the Seller to comply with any term, provision or covenant contained in this Agreement or any other Transaction Document to which it is a party or with any Applicable Law (including tax laws, rules or regulations) with respect to any Transferred Receivable or the related Medallion Loan Documents with which compliance is required of the Seller or the nonconformity of any Transferred Receivable, Medallion Collateral or Other Transferred Property, as of the Transfer Date therefor, with any such Applicable Law;
- the failure to vest and (except as expressly contemplated by the Transaction Documents) maintain vested in the Purchaser or to transfer to the Purchaser, legal and equitable title to and ownership of, or security interest in, any Transferred Receivables together with all Other Transferred Property, free and clear of any Lien (other than Permitted Liens) existing at the time of any Transfer or at any time thereafter arising from or through the Seller;
- the failure to file, or any delay in filing, financing statements, continuation statements or other similar instruments or documents under the UCC of all applicable jurisdictions or other applicable laws or the failure to make other filings as may be, in each of the foregoing cases in this clause (d), expressly required to be filed by the Seller hereunder with respect to any Transferred Assets, whether at the time of any Transfer or at any subsequent time;
- the failure of the Seller or any of its agents and representatives to remit to the Collection Account Collections on Transferred Receivables that are received by the Seller as cleared funds, within the time specified in Section 11.8 (Deposits to Accounts) of the Loan Agreement;
- the commingling of Collections on Transferred Assets at any time with other funds of the Seller, the Servicer, any other MCC Entity, or the Sub‑Servicer;
- any failure of the Seller or any other MCC Entity to perform its duties or obligations in accordance with the provisions of this Agreement, any other Transaction Document, any Medallion Loan Documents, any MRP+ Program Documents or any other contract or agreement related to a Medallion Loan or Other Transferred Property with respect thereto;
- any damage suit or other claim arising out of or in connection with any transaction which is the subject of any Medallion Loan Document, any Medallion Loan or any Other Transferred Property with respect thereto, in each case to the extent such suit or claim relates to or arose out of (A) events or circumstances that occurred or existing prior to the applicable Transfer Date or (B) any actual or alleged act or omission on the part of the Seller or any other MCC Entity;
- any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of any Obligor to the payment of any Transferred Asset (including, without limitation, a defense based on such Transferred Asset or the related Medallion Loan Documents not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim relating
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- to a Transferred Asset, in each case to the extent such suit or claim relates to or arose out of (A) events or circumstances that occurred or existing prior to the applicable Transfer Date or (B) any actual or alleged act or omission on the part of the Seller or MCC;
- any and all taxes (except for taxes on the net income of an Indemnified Person or franchise taxes), that may at any time be asserted with respect to the transactions contemplated herein or the conveyance or (prior to the respective Transfer Dates therefor) ownership of the Transferred Receivables or the Other Transferred Property hereunder, including, without limitation, any sales, gross receipts, general corporation, tangible or intangible personal property, privilege, or license taxes and costs and expenses in defending against the same;
- any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document to which it is a party, the transactions contemplated hereby or thereby, the use of the proceeds of Transfers or any other investigation, litigation or proceeding relating to the Seller or MCC, the Transferred Receivables or Other Transferred Property in which any Indemnified Person becomes involved as a result of any of the transactions contemplated hereby or thereby, in each case to the extent such suit or claim relates to or arose out of (A) events or circumstances that occurred or existing prior to the applicable Transfer Date or (B) any actual or alleged act or omission on the part of the Seller or MCC;
- any inability to litigate any claim against any Obligor or any third-party originator as a result of such Person being immune from civil and commercial law and suit, in each case to the extent such suit or claim relates to or arose out of (A) events or circumstances that occurred or existing prior to the applicable Transfer Date or (B) any actual or alleged act or omission on the part of the Seller or MCC.
Notwithstanding anything to the contrary in this Agreement, solely for purposes of the indemnification obligations set forth in this Section 5.1, any representations, warranties and covenants made by the Seller in this Agreement or the other Transaction Documents, and any criteria which are set forth in the definition of "Eligible Receivable," which are qualified by or limited to events or circumstances which have, or are reasonably likely to have, given rise to a Material Adverse Effect or by any other materiality or knowledge qualification or limitation, shall not be deemed to be so qualified or limited.
If any suit, action, claim or proceeding (collectively, "Proceeding") which might result in indemnification under this Section 5.1 is brought against an Indemnified Person, the Indemnified Person shall, if a claim in respect thereof is to be made against the Seller hereunder, notify the Seller in writing of the commencement thereof; provided, however, that, the failure to notify the Seller shall not relieve it from any liability which it may have under this Section 5.1 except to the extent it has been materially prejudiced (e.g., through the forfeiture of substantive rights or defenses) by such failure; and, provided, further, however, that, the failure to notify the Seller shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under this Section 5.1. The Seller may participate in and assume the defense of any such Proceeding at its expense for which indemnification is available under this Section 5.1; provided that no settlement thereof shall be made without the approval of the Seller and such Indemnified Person (such consent not to be unreasonably withheld) unless such settlement (x) includes an unconditional release of such Indemnified Person from all liability on claims that are the subject matter of such Proceeding and (y) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of such Indemnified Person. Any counsel used by the Seller
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in the defense of any such Proceeding shall be reasonably satisfactory to the Indemnified Person. The Seller must keep the Indemnified Person apprised of the progress of any such Proceeding. Any judgment, settlement or other amounts payable as a result of such Proceeding shall be subject to indemnification by the Seller pursuant to this Section 5.1. Notwithstanding the Seller's election to assume the defense of any such Proceeding, an Indemnified Person shall have the right to employ separate counsel and to participate in the defense of such action, and the Seller shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by the Seller to represent such Indemnified Person would present such counsel with a conflict of interest; (ii) the actual or potential defendants in, or targets of, any such action include the Seller and such Indemnified Person and such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to the Seller; (iii) the Seller shall not have employed counsel reasonably satisfactory to such Indemnified Person to represent it within a reasonable time after notice of the institution of such action; or (iv) the Seller shall authorize such Indemnified Person to employ separate counsel at the Seller's expense. Notwithstanding the foregoing, in no event shall the Seller be liable for the fees and expenses of more than one separate firm of attorneys for all Indemnified Persons in connection with any Proceeding, plus one firm of local counsel in each jurisdiction in which any such Proceeding is taking place. The Seller will not be liable under this Agreement for any amount paid by an Indemnified Person to settle any claims or actions for which indemnification is available under this Section 5.1, if the settlement is entered into without the Seller's consent, which consent may not be unreasonably withheld or delayed, but if settled with its written consent or if there be a final judgment of the plaintiff in any such action, the Seller agrees to indemnify and hold harmless any Indemnified Person from and against any loss or liability by reason of such settlement or judgment.
Any amounts subject to the indemnification provisions of this Section 5.1 shall be paid by the Seller to the Indemnified Person within five Business Days following the Indemnified Person's written demand therefor specifying, in reasonable detail, the nature and amount of such Liabilities for which indemnification is being claimed hereunder. In addition, the Seller shall pay to the Indemnified Persons within five Business Days after written demand therefor, any and all out-of-pocket costs and expenses of the Indemnified Persons (including reasonable and documented out-of-pocket counsel fees and expenses) incurred in connection with the enforcement of this Agreement and the other documents delivered hereunder, or in connection with the administration, restructuring or workout of this Agreement following an Event of Default. The agreement contained in this Section 5.1 shall survive the collection of all Transferred Receivables, the termination of this Agreement and the payment of all amounts otherwise payable hereunder.
- Certain Losses Not Indemnified. Notwithstanding the foregoing, the Seller shall not be obligated to indemnify any such Indemnified Person for Liabilities (a) to the extent that they result from gross negligence, willful misconduct or bad faith on the part of an Indemnified Person or material breach of its obligations under any Transaction Documents , (b) to the extent the same represents losses in respect of Transferred Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor or other credit recourse, or the diminution in value of any Transferred Assets, except to the extent such loss was the result of any breach of any representation, warranty or covenant by the Seller, and (c) claimed by an Indemnified Person as a result of any claim made by any MCC Entity or Affiliate thereof against such Indemnified Person which has been
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- reduced to a final and non-appealable judgment by a court of competent jurisdiction in favor of such MCC Entity or Affiliate; provided, however, that, nothing contained in this sentence shall limit the liability of the Seller or limit the recourse of the Borrower (or its designee) to the Seller for amounts otherwise specifically provided to be paid by the Seller under the terms of this Agreement.
- Termination
- Termination. The respective obligations and responsibilities of the Seller and the Purchaser created under this Agreement shall terminate, except for their respective indemnity obligations as provided herein, on the Final Settlement Date.
- Miscellaneous Provisions
- Amendments, Etc. No modification or amendment of this Agreement shall be valid or effective unless in a writing and signed by the Seller and the Purchaser, and for which the prior written consent of the Agent (acting at the direction of the Required Lenders) has been obtained.
- Successors and Assigns; Consent to Assignment of Transferred Assets by Purchaser. This Agreement shall bind and inure to the benefit of and be enforceable by the Seller, the Purchaser and their respective successors and permitted assigns; provided, however, that, neither the Seller nor the Purchaser may assign, delegate, novate or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of the Agent. The Seller acknowledge that the Purchaser intends to pledge all of its rights in and to this Agreement (including, without limitation, all of the Purchaser's rights related to the Transferred Assets). The Seller agrees that the Agent, on behalf of the Secured Parties, may enforce any right or remedy against the Seller under this Agreement as if it were the Purchaser hereunder, following such assignment by the Purchaser and pledge by the Purchaser to the Agent. Such enforcement of a right or remedy by the Agent shall have the same force and effect as if the right or remedy had been enforced or exercised by Purchaser directly.
- Counterparts. This Agreement shall be valid, binding and enforceable against a Party when executed and delivered by an authorized individual on behalf of such Party by means of (i) an original manual signature; (ii) a faxed, scanned or photocopied manual signature or (iii) any other electronic signature permitted by the federal Electronic Signatures in Global and National Commerce Act, state enactments of the Uniform Electronic Transactions Act and/or any other relevant electronic signatures law, including any relevant provisions of the UCC (collectively, "Signature Law"), in each case to the extent applicable. Each faxed, scanned or photocopied manual signature, or other electronic signature, shall for all purposes have the same validity, legal effect and admissibility in evidence as an original manual signature. Each Party shall be entitled to conclusively rely upon, and shall have no liability with respect to, any faxed, scanned or photocopied manual signature, or other electronic signature, of any other Party and shall have no duty to investigate, confirm or otherwise verify the validity or authenticity thereof. This Agreement may be executed in any number of counterparts, each of which shall
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- be deemed to be an original, but such counterparts shall, together, constitute one and the same instrument. For the avoidance of doubt, original manual signatures shall be used for execution or indorsement of writings when required under the UCC or other Signature Law due to the character or intended character of the writings.
- Governing Law. THIS AGREEMENT SHALL, IN ACCORDANCE WITH SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK, BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO ANY CONFLICTS OF LAW PRINCIPLES THEREOF THAT WOULD CALL FOR THE APPLICATION OF THE LAWS OF ANY OTHER JURISDICTION.
- Nonpetition Covenant. Until one year plus one day shall have elapsed since the payment in full of the Secured Obligations, neither any Party, nor any assignee thereof, solely in its capacity as a creditor of the Purchaser, shall petition or otherwise invoke the process of any court or government authority for the purpose of commencing or sustaining an involuntary case against the Purchaser under any federal or state bankruptcy, insolvency or similar law or appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official of the Purchaser or any substantial part of its property, or ordering the winding up or liquidation of the affairs of the Purchaser.
- Survival. The provisions of Section 3.3 (Remedies for Breach), Article 5 (Indemnification), Section 7.5 (Nonpetition Covenant) and Section 7.9 (Limited Recourse) shall survive the termination of this Agreement.
- Notices. All demands, notices and communications hereunder shall be provided in accordance with Section 14.2 (Notices) of the Loan Agreement. Any notice of a breach or default hereunder shall also be sent to the Agent in the manner provided in the Loan Agreement.
- Third-Party Beneficiary. The parties to this Agreement hereby manifest their intent that Agent, for the benefit of the Secured Parties, be a third-party beneficiary of this Agreement.
- Limited Recourse. Notwithstanding any other provision of this Agreement or any other Transaction Document to the contrary, the obligations of the Purchaser are limited recourse obligations of the Purchaser payable solely from the Pledged Collateral. Following realization of the Pledged Collateral and application of the proceeds thereof in accordance with the Transaction Documents, all obligations of and any claims against the Purchaser under this Agreement or in connection herewith after such realization shall be extinguished and shall not thereafter revive.
[Signatures on following page]
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IN WITNESS WHEREOF, the Parties have caused their names to be signed to this Purchase and Contribution Agreement by their respective officers thereunto duly authorized as of the day and year first above written.
DePalma Acquisition I LLC
as Seller
By: /s/ Michael Hutchby
Name: Michael Hutchby
Title: Chief Financial Officer
Signature pages to Purchase and Contribution Agreement—1 of 2
DePalma Financing SPV I LLC
as Purchaser
By: /s/ Michael Hutchby
Name: Michael Hutchby
Title: Chief Financial Officer
Signature pages to Purchase and Contribution Agreement—2 of 2
- Schedule 1
Schedule of Principal Places of Business and Chief Executive Offices
- 5 Greenwich Office Park
Suite 400
Greenwich, CT 06831
| Schedule of Principal Place of Business and Chief Executive Offices | Schedule 1-1 | Purchase and Contribution Agreement |
|---|
- Schedule 2
Seller Prior Names
None
| Seller Prior Names | Schedule 2-1 | Purchase and Contribution Agreement |
|---|
- Schedule 3
Lockbox Account
[***]
| Lockbox Account | Schedule 3-1 | Purchase and Contribution Agreement |
|---|
- Exhibit A
Form of Assignment
[***]
| Form of Assignment | Exhibit A-1 | Purchase and Contribution Agreement |
|---|
Schedule A
Receivables
[***]
| Form of Assignment | Exhibit A-2 | Purchase and Contribution Agreement |
|---|
- Exhibit B
Initial Assignment
[***]
| Initial Assignment | Exhibit B-1 | Purchase and Contribution Agreement |
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EX-10.5
Certain confidential information contained in this document, marked by “[***]”, has been omitted pursuant to Item 601(b)(10)(iv) of Regulation S-K because it is both (i) not material and (ii) is the type of information that the Company treats as private or confidential. Certain schedules (or similar attachments) also marked by “[***]” have been omitted pursuant to Item 601(a)(5) of Regulation S-K.
EXECUTION COPY
PLEDGE AND SECURITY AGREEMENT
This Pledge and Security Agreement (as amended, restated, supplemented or otherwise modified from time to time, this "Agreement"), dated as of December 30, 2025, is entered into by and between (i) DePalma Acquisition I LLC, a Delaware limited liability company (the "Pledgor"), and (ii) DZ BANK AG Deutsche Zentral-Genossenschaftsbank, Frankfurt Am Main, New York Branch, acting in its capacity as the "Agent" (together with its successors and assigns, in such capacity, the "Agent," and, together with the Pledgor, the "Parties," and each, a "Party") under the Loan Agreement (as defined under Preliminary Statements below). This is the "Equity Pledge Agreement" referred to in the Loan Agreement.
Preliminary Statements
- Pursuant to the Receivables Loan and Security Agreement, dated as of December 30, 2025 (as heretofore amended, restated, supplemented or otherwise modified from time to time, the "Loan Agreement"), among DePalma Financing SPV I LLC, a Delaware limited liability company (the "Borrower"), the Pledgor, as servicer, the "Lenders" from time to time party thereto (collectively, the "Lenders," and each, a "Lender"), and the Agent, the Lenders have agreed to make advances from time to time (the "Advances") to the Borrower, subject to the terms and conditions set forth therein.
- It is a condition precedent to the effectiveness of the Loan Agreement and the obligation of the Lenders to make advances to the Borrower under the Advances that, inter alia, the Pledgor shall have executed and delivered this Agreement, and the Lenders would be unwilling to enter into the Loan Agreement or make advances thereunder without the benefit of this Agreement.
NOW, THEREFORE, in consideration of the foregoing premises, to induce the Agent and the Lenders to enter into the Loan Agreement and the other Transaction Documents and to enter into the transactions contemplated thereunder, the Pledgor, intending to be legally bound, hereby agrees with the Agent as follows:
- Definitions and Usage
- Definitions. Whenever used in this Agreement, the following terms, unless the context otherwise requires, shall have the following meanings:
"Adverse Claim" means an "adverse claim" within the meaning of Article 8 of the UCC.
"Borrower Equity Interest Certificates" has the meaning specified in Section 2.1(a)(ii) below.
"Borrower Equity Interests" has the meaning specified in Section 2.1(a)(i) below.
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"Borrower LLC Agreement" means the Second Amended and Restated Limited Liability Company Agreement, dated as of December 30, 2025, of the Borrower, by the Pledgor, as the sole equity member, and Orlando C. Figueroa and Dewen Tarn, as the independent managers, as amended, restated, replaced, supplemented or otherwise modified from time to time.
"Collateral" has the meaning specified in Section 2.1(a) (Granting Clause) below.
"Relevant Documents" means, collectively, (a) the Borrower LLC Agreement, (b) all other Organizational Documents of the Borrower and (c) any other agreements or documents relating to the Borrower Equity Interests or any other Collateral, as any of the foregoing may be amended, restated, replaced, supplemented or otherwise modified from time to time.
"Representatives" means, with respect to any Person, each of (and "Representative" means any of) its directors, employees, officers, partners and managers.
"UCC" means the Uniform Commercial Code as in effect, from time to time, in the State of New York; provided, however, that, if perfection or the effect of perfection or non‑perfection or the priority of any security interest in any Collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the State of New York, "UCC" means the Uniform Commercial Code as in effect from time to time in such other jurisdiction for purposes of the provisions of this Agreement relating to such perfection, effect of perfection or non-perfection or priority.
- Other Defined Terms. Any other capitalized terms used but not defined in this Agreement (including, without limitation, the terms "Applicable Law," "Business Day," "Closing Date," "Event of Default," "Final Settlement Date," "Governmental Authority," "Lien," "Maturity Date," "Organizational Documents," "Person," "Pledged Collateral," "Required Lenders," "Secured Obligations, "Secured Party," "Secured Parties" and "Transaction Documents") have the meanings assigned to such terms under the Loan Agreement.
- Usage. The rules of construction and usage set forth in Section 1.2 (Usage) of the Loan Agreement shall apply to this Agreement unless a contrary intention appears.
- Security Interest
- Pledge and Grant of Security Interest.
- Granting Clause. The Pledgor hereby irrevocably grants, pledges and assigns a continuing first priority lien on, and security interest in, and, as a part of such grant, pledge and assignment, hereby assigns to the Agent as collateral security, all of the Pledgor's right, title and interest in, to and under the following property, whether now owned by Pledgor or hereafter acquired, whether now existing or hereafter coming into existence, and wherever located, all of the property described in the following clauses (i) through (vi) of this Section 2.1(a) (collectively, the "Collateral"):
- its 100.00% membership interests (and any and all other Equity Interests) in the Borrower (the "Borrower Equity Interests");
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- any certificate or other document of title (if any) from time to time representing, constituting or otherwise relating to the Borrower Equity Interests, whether in existence on the date of this Agreement or coming into existence at any time thereafter (any of the foregoing, "Borrower Equity Interest Certificates");
- all ownership interests, membership interests, shares, securities, moneys, instruments or property representing a dividend, a distribution or return of capital upon or in respect of the Borrower Equity Interests, or otherwise received in exchange therefor, and any warrants, rights or options issued to the holders of, or otherwise in respect of, the Borrower Equity Interests;
- all rights of the Pledgor under the Relevant Documents, or any other agreement or instrument relating to the Borrower Equity Interests, including, without limitation, (A) all rights of the Pledgor to receive moneys or distributions with respect to the Borrower Equity Interests due and to become due under or pursuant to the Relevant Documents, (B) all rights of the Pledgor to receive proceeds of any insurance, indemnity, warranty or guaranty with respect to the Borrower Equity Interests, (C) all claims of the Pledgor for damages arising out of or for breach of or default under a Relevant Document, and (D) any right of the Pledgor to perform thereunder and to compel performance and otherwise exercise all rights and remedies thereunder;
- to the extent related to any of the property of the Pledgor described in the foregoing clauses (i) through (iv) of this Section 2.1(a), (A) all books, records correspondence, credit files, records, invoices and other papers and (B) all present and future claims, demands, causes and choses in action; and
- all proceeds (as defined in the UCC) of the property of the Pledgor described in the foregoing clauses (i) through (v) of this Section 2.1(a).
- Secured Obligations. The grant pursuant to this Section 2.1 is made as continuing collateral security for the prompt payment in full in cash when due, and not merely the collection, of all of the Secured Obligations.
- Cash Distributions. So long as no Event of Default shall have occurred and be continuing, the Pledgor shall be entitled to receive and retain any cash distributions of funds that are released from the Pledged Collateral pursuant to the express terms of the Loan Agreement. Upon the occurrence, and during the continuance of any Event of Default, all rights of the Pledgor to receive and retain such distributions shall forthwith cease, and all such rights and powers shall thereupon become vested in the Agent, which, during the continuance of such Event of Default, shall have the sole and exclusive authority to exercise such rights and powers and to receive such distributions.
- Security Agreement. This Agreement shall be deemed to constitute a security agreement under the UCC.
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- Security Interest Absolute. All rights of the Agent, the security interest granted under this Agreement, and all of the obligations of the Pledgor under this Agreement, shall be absolute and unconditional, irrespective of:
- any lack of validity or enforceability of the Loan Agreement or any other Transaction Document;
- any change in any term of all or any of the obligations of the Borrower under the Loan Agreement or any other Transaction Document, or any other amendment or waiver of or any consent to any departure from any provision of the Loan Agreement or any other Transaction Document;
- any failure by the Secured Parties to enforce the provisions of the Transaction Documents (and the Secured Parties shall be under no obligation whatsoever to proceed against the Borrower or any other Person prior to the exercise of its rights and remedies under this Agreement); or
- any other circumstance that might otherwise constitute a defense available to, or a discharge of, the Borrower (other than the full, final and indefeasible payment of the Secured Obligations (other than unasserted contingent obligations)).
- Pledgor Remains Liable. Notwithstanding anything to the contrary in this Agreement or any other Transaction Document, (a) the Pledgor shall remain liable under the contracts and agreements included in the Collateral to the extent set forth therein to perform all of its duties and obligations thereunder to the same extent as if this Agreement had not been executed, (b) the exercise by the Agent of any of the rights under this Agreement shall not release the Pledgor from any of its duties or obligations under the contracts and agreements included in the Collateral and (c) no Secured Party shall have any obligation or liability under the contracts and agreements included in the Collateral by reason of this Agreement or any other Transaction Document, nor shall any Secured Party be obligated to perform any of the obligations or duties of the Pledgor thereunder or to take any action to collect or enforce any claim for payment assigned hereunder.
- Perfection and Further Assurances
- Protection of Security Interest. The Pledgor agrees that from time to time, at its expense, it will promptly execute and deliver all instruments and documents, and take all actions, that may be necessary or that the Agent may reasonably request to (a) perfect, protect or more fully evidence the pledge of the Collateral to the Agent pursuant to Section 2.1 (Pledge and Grant of Security Interest) above, and (b) following the occurrence and during the continuance of an Event of Default, enable the Agent and the Secured Parties to exercise and enforce their rights and remedies under this Agreement and the Collateral.
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- Obligation to File Financing Statements. Without limiting the generality of Section 3.1 (Protection of Security Interest) above:
- Closing Date Filings. On or prior to the Closing Date, the Pledgor shall have filed or caused to be filed a UCC-1 financing statement, naming the Pledgor as the "Debtor" and the Agent, for the benefit of the Secured Parties, as the "Secured Party," and describing the Collateral as the collateral covered thereby, with the office of the Secretary of State of the State of Delaware.
- Post-Closing Filing Obligations. From time to time after the Closing Date, the Pledgor shall file, or cause to be filed, such financing statements and continuation statements, in such manner and in such places as may be required by Applicable Law, or as the Agent may reasonably request, in order to effect, reflect, perfect, preserve, maintain and protect the security interests granted or purported to be granted by the Pledgor under this Agreement.
- Delivery of Filed Copies. The Pledgor shall deliver (or cause to be delivered) to the Agent file-stamped copies of, or filing receipts for, any document filed by the Pledgor as required under this Section 3.2, as soon as available following such filing.
- Participation in Actions. The Pledgor shall, from time to time at the reasonable request of the Agent, appear in and defend any action or proceeding that may materially and adversely affect the Pledgor's title to, or the Agent's security interest in, all or any part of the Collateral.
- Authorization to File Financing Statements.
- Authorization. The Pledgor hereby authorizes the Agent and its Representatives to file all financing statements, continuation statements or other instrument required to be filed, naming the Pledgor as debtor that are necessary or advisable to perfect, make effective or continue the grant and pledge under Section 2.1 (Pledge and Grant of Security Interest) above of this Agreement, and authorizes the Agent and its Representatives to take any such action without its signature.
- Authorization Not an Obligation. The rights provided to the Agent under this Section 3.4 shall not create any duty or obligation on the part of the Agent or relieve the Pledgor of its obligations under Section 3.1 (Protection of Security Interest) or 3.2 (Obligation to File Financing Statements) above.
- Delivery of Collateral.
- Delivery of Certificates and Instruments. All certificates or instruments representing or evidencing the Collateral, if any, shall be delivered to and held by or on behalf of the Agent for the benefit of the Secured Parties pursuant to this Agreement and shall be in suitable form for transfer by delivery or, as applicable, shall be accompanied by the Pledgor's endorsement, where necessary, and duly-executed instruments of transfer or assignment in blank, all in form and substance satisfactory to the Agent.
- Equity Interest Certificates. Without limiting the generality of Section 3.5(a) (Delivery of Certificates and Instruments) above, or limiting, in any respect, the obligations of the Pledgor under Section 4.2(b) (No Certificates) below, on the Closing Date, and, at any other time prior to the Final Settlement Date (and without limiting the obligations of the Pledgor under Section 4.2(b) (No Certificates)
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- below), by no later than the second Business Day following the creation of any Borrower Equity Interest Certificate with respect to any Borrower Equity Interests, the Pledgor shall deliver, or cause to be delivered, to the Agent:
- the original of such Borrower Equity Interest Certificate; and
- a blank, signed and undated equity interest power or transfer, as applicable, in form and substance satisfactory to the Agent.
- Certain Rights Following Event of Default.
- Exchange and Transfer. At all times after the Maturity Date (unless the Final Settlement Date shall have occurred on or prior to such date), and at all times following the occurrence and during the continuance of an Event of Default, which results in the Secured Obligations becoming due and payable, the Agent shall have the right to (i) exchange certificates or instruments representing or evidencing Collateral (including, without limitation, any Borrower Equity Interest Certificates) for certificates or instruments of smaller or larger denominations and (ii) transfer to, or to register in the name of, the Agent or any of its nominees or transferees any or all of the Borrower Equity Interests or any other Collateral.
- Registered Owner. Immediately upon being so directed in writing by the Agent at any time after the Maturity Date (unless the Final Settlement Date shall have occurred on or prior to such date) or following the occurrence and during the continuance of an Event of Default, which results in the Secured Obligations becoming due and payable, the Pledgor shall (i) cause the Agent to be the registered owner of (A) all Borrower Equity Interests and (B) any other Collateral that constitutes an "uncertificated security" (as defined in the UCC) and (ii) promptly execute and deliver all such proxies, dividend payment orders and other instruments as Agent may request in connection with the exercise of its rights, remedies and privileges under this Agreement.
- Representations, Warranties and Covenants
- Representations and Warranties. The Pledgor represents and warrants (which representations and warranties shall survive the execution and delivery of this Agreement) to each Secured Party, as of the Closing Date, that:
- Good Title, Etc. (i) The Pledgor (A) is the direct, legal, registered and beneficial owner of, and retains the exclusive power to exercise all voting and other control rights with respect to, all of the Borrower Equity Interests, and (B) is the legal and beneficial owner of all other Collateral, (ii) other than the grant and pledge to the Agent pursuant to Section 2.1 (Pledge and Grant of Security Interest) above, none of the Collateral is subject, in whole or in part, to any (A) Lien, (B) Adverse Claim, (C) right of set-off, (D) agreement by the Pledgor to sell, assign, convey, transfer, lease, participate or dispose of any such Collateral or (E) prior sale, assignment, conveyance, transfer, lease, participation or disposition by the Pledgor, (iii) the Pledgor has not authorized the filing of, and is not aware of, any financing statement against the Pledgor that includes a description of collateral covering all or any portion of the Collateral other than any financing statements relating to the grant and pledge to the Agent pursuant to Section 2.1
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- (Pledge and Grant of Security Interest) above, and (iv) the Pledgor is not aware of any material judgment or tax lien filings against the Pledgor or any of its property or assets.
- No Certificates. No Borrower Equity Interest Certificates have been issued.
- Organizational Documents. (i) True, correct and complete copies of the Borrower LLC Agreement and all other Organizational Documents of the Borrower (including, in each case, any amendments, restatements, supplements, replacements, supersessions, terminations, waivers or other modifications thereto or thereof) have been provided to the Agent, (ii) the execution, delivery and performance of the Borrower LLC Agreement by the Pledgor has been duly authorized by all necessary limited liability company action on the part of the Pledgor, (iii) the Borrower LLC Agreement (A) is in full force and effect, (B) has been duly executed and delivered for good and valuable consideration by the Pledgor and (C) constitutes the legal, valid and binding obligation of the Pledgor, enforceable against the Pledgor in accordance with its terms, subject to bankruptcy, insolvency, and other limitations on creditors' rights generally and to equitable principles, (iv) the Pledgor, the Borrower and their respective Affiliates are in compliance in all material respects with all representations, warranties, covenants, agreements, terms, conditions, restrictions and other provisions applicable to such Person under the Borrower LLC Agreement, and (v) neither the execution and delivery of the Borrower LLC Agreement by the Pledgor, nor the compliance with the representations, warranties, covenants, agreements, terms, conditions, restrictions and other provisions of the Borrower LLC Agreement by the Pledgor or by the Borrower, (A) shall have conflicted with, or will conflict with, or shall have resulted in, or will result in, a breach of, the Organizational Documents of the Pledgor or the Borrower, (B) shall have conflicted with, or will conflict with, any Applicable Law, (C) shall have resulted in, or will result in, (1) a breach or violation of any of the terms, conditions or provisions of any judgment or order, writ, injunction, decree or demand of any Governmental Authority applicable to the Pledgor or the Borrower, as the case may be, or (2) the creation or imposition of any Lien or other encumbrance upon any of the assets of the Pledgor or the Borrower, as the case may be, or (D) shall have violated or conflicted with, or will violate or conflict with, any contractual provisions of, or shall have caused, or will cause, an event of default under, any indenture, loan agreement, mortgage, contract or other material agreement to which the Pledgor or the Borrower, as the case may be, is a party or by which it may be bound.
- Location. As of the date of this Agreement, the chief executive office (for purposes of the UCC) and principal place of business of the Pledgor are located at 5 Greenwich Office Park, Suite 400, Greenwich, CT 06831.
- Jurisdiction. The Pledgor is duly organized as a Delaware limited liability company and is not organized under the laws of any other jurisdiction.
- Legal Name. The full legal name of the Pledgor is as typed on the signature page of this Agreement. The Pledgor does not utilize any trade names or other names under which it currently conducts business.
- Changes in Circumstances. Since the date of its formation, the Pledgor has not changed its name or jurisdiction of formation.
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- Required Consents. Except as may be required in connection with the disposition of any portion of the Collateral by laws affecting the offering and sale of securities generally and such other actions, consents, notices or approvals of which the failure to obtain could not reasonably be expected to materially impair the rights and remedies of or the benefits available to the Agent under this Agreement, no consent of any Person, and no license, permit, approval or authorization of, exemption by, notice or report to, or registration, filing (other than the filing of financing statements under the UCC in order to perfect a security interest in that portion of Collateral as to which the UCC requires such filing to be made in order to perfect a security interest therein) or declaration with any Governmental Authority is required in connection with (i) the execution, delivery or performance by, or enforceability against, the Pledgor of this Agreement, (ii) the perfection or maintenance of the grant and pledge pursuant to Section 2.1 (Pledge and Grant of Security Interest) above (including the first-priority nature of the security interest created thereby) or (iii) the exercise by the Agent of the rights and remedies granted to it under this Agreement (including, without limitation, the voting and consensual rights provided for in Section 5.2 (Exercise of Rights Under Borrower Equity Interests) below).
- No Contractual Restrictions. Neither the grant and pledge pursuant to Section 2.1 (Pledge and Grant of Security Interest) above nor the exercise by the Agent or any other Secured Party of its rights and remedies under this Agreement will violate any contractual restriction binding on or affecting the Pledgor or any of its property or assets (including, without limitation, the Borrower LLC Agreement).
- Security Interest. (i) This Agreement creates a valid security interest in favor of the Agent in the Collateral, which security interest is prior to all other Liens and is enforceable as such as against creditors of and purchasers from Pledgor, (ii) upon the filing of a UCC financing statement describing the Collateral with the Secretary of State of the State of Delaware and, if applicable, the delivery of any Borrower Equity Interest Certificate, and the related power or transfer, pursuant to Section 3.5(b) (Equity Interest Certificates) above, the Agent shall have a first priority perfected security interest in (A) the Borrower Equity Interest Certificate, (B) all Borrower Equity Interests, (C) all rights of the Pledgor under the Borrower LLC Agreement and (D) if and to the extent that a security interest therein can be perfected by the filing of a financing statement under the UCC, all other Collateral and (iii) no other action is necessary to perfect the security interest of the Agent in the property and assets described in the foregoing clauses (ii)(A) through (ii)(D) of this Section 4.1(j).
- Covenants. On and as of date of this Agreement, and at all times until the Final Settlement Date:
- Ownership of Collateral, Etc. (i) The Pledgor shall remain (A) the direct, legal, registered and beneficial owner of, and retain the exclusive power to exercise all voting and other control rights with respect to, all of the Borrower Equity Interests, and (B) the legal and beneficial owners of all other Collateral, (ii) the Pledgor shall not sell, assign, convey, transfer, lease, participate or dispose of, or grant, create, incur or assume, or suffer, allow or permit to exist, any Lien, Adverse Claim or restriction on transferability (other than as currently set forth in the Borrower LLC Agreement) in or on, any of its right, title or interest in, to or under any Collateral, and (iii) the Pledgor shall defend the right, title, and interest of the Pledgor, and of the Agent, for the benefit of the Secured Parties, in, to and under the Collateral against any and all such Liens, Adverse Claims and restrictions on transferability claiming through or under the Pledgor.
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- No Certificates. Except upon the prior written direction of the Agent, the Pledgor shall not, at any time, cause, direct or permit any Borrower Equity Interest Certificates to be issued with respect to the Borrower Equity Interests.
- No Equity Issuance. The Pledgor shall not, at any time, cause, direct or permit any additional Borrower Equity Interests to be issued.
- Change of Identity, Etc. (i) The Pledgor shall not (A) change its name, identity, jurisdiction of organization or corporate structure in any manner that would or could render "seriously misleading" (within the meaning of Sections 9-506 and 9‑507(c) of the UCC, or any similar or successor provision of the UCC) any financing statement or continuation statement filed pursuant to Section 3.1 (Protection of Security Interest), 3.2 (Obligation to File Financing Statements) or 3.4 (Authorization to File Financing Statements) above that names the Pledgor as debtor or (B) relocate, re-domicile or otherwise change its jurisdiction of organization unless (in the case of each of the foregoing clauses (A) and (B)), the Pledgor has given at least 25 days' written notice to the Agent and has taken all actions required under the UCC of each relevant jurisdiction in order to continue the first priority perfected security interest of the Agent in the Collateral.
- Other Financing Statements. The Pledgor shall not file or authorize to be filed in any jurisdiction, any financing statement or like instrument with respect to the Collateral in which the Agent is not named as the sole secured party.
- Remedies
- Remedies at Law. At all times on and after the Maturity Date (whether occurring pursuant to Section 13.1 (Events of Default) of the Loan Agreement or otherwise), and at all times following the occurrence and during the continuance of an Event of Default, which results in the Secured Obligations becoming due and payable, unless and until the Final Settlement Date shall have occurred, the Secured Parties shall have, in addition to all other rights and remedies under this Agreement, the Loan Agreement and the other Transaction Documents, all other rights and remedies provided under the UCC of the applicable jurisdiction and other Applicable Laws, which rights shall be cumulative.
- Exercise of Rights Under Borrower Equity Interests. Without limiting any other obligations of the Pledgor under this Agreement or any other Transaction Document, the Pledgor confirms and agrees that, all times after the Maturity Date (unless the Final Settlement Date shall have occurred on or prior to such date), and at all times following the occurrence and during the continuance of an Event of Default, which results in the Secured Obligations becoming due and payable, the Agent (or any Representative or designee thereof), shall, at its option, and without the consent of the Pledgor, have the sole and exclusive right to exercise and enforce any and all voting, consensual and other rights and powers, and all other rights and remedies, of the Pledgor, under, or in respect of, the Borrower Equity Interests, but without any obligation on the part of the Agent, the other Secured Parties or any of their respective Affiliates to perform any of the obligations of the Pledgor thereunder or with respect
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- thereto, including, without limitation, (i) any voting, consent, corporate and other rights pertaining to the Borrower Equity Interests at any meeting of equity holders or otherwise or in connection with any written consent of equity holders, and (ii) any right of conversion, exchange and subscription and any other right pertaining to the Borrower Equity Interests as if it were the absolute owner thereof.
- Liquidation of Collateral, Etc.
- At all times on and after the Maturity Date (whether occurring pursuant to Section 13.1 (Events of Default) of the Loan Agreement or otherwise), and at all times following the occurrence and during the continuance of an Event of Default, which results in the Secured Obligations becoming due and payable, unless and until the Final Settlement Date shall have occurred, the Agent, in addition to all other rights provided under this Agreement, the other Transaction Documents and Applicable Law, shall have the right, in its own name and as agent for the Secured Parties, to immediately sell in a commercially reasonable manner, in a recognized market (if one exists) at such price or prices as the Agent may reasonably deem satisfactory, any or all of the Collateral and apply the proceeds thereof to the Secured Obligations. The Pledgor agrees that, to the extent notice of sale shall be required by law, ten days' notice to the Pledgor of the time and place of any public sale or the time after which any private sale is to be made shall constitute reasonable notification.
- The Parties recognize that it may not be possible to sell all of the Collateral on a particular Business Day, or in a transaction with the same purchaser, or in the same manner because the market for the assets constituting the Collateral may not be liquid. Accordingly, the Agent may elect, in its sole and absolute discretion, the time and manner of liquidating any of the Collateral, and nothing contained in this Agreement or the other Transaction Documents shall obligate the Agent to liquidate any of the Collateral on the Maturity Date or to liquidate all of the Collateral in the same manner or on the same Business Day.
- At all times on and after the Maturity Date (whether occurring pursuant to Section 13.1 (Events of Default) of the Loan Agreement or otherwise), and at all times following the occurrence and during the continuance of an Event of Default, which results in the Secured Obligations becoming due and payable, unless and until the Final Settlement Date shall have occurred, the Agent and each Secured Party shall have, in addition to all the rights and remedies provided herein and provided by applicable federal, state, foreign, and local laws (including, without limitation, the rights and remedies of a secured party under the UCC of any applicable state, to the extent that the UCC is applicable, and the right to offset any mutual debt and claim), all rights and remedies available to the Agent or such Secured Party, as applicable, at law, in equity or under any other agreement between the Agent or such Secured Party, as applicable, and the Pledgor.
- Remedies Not Exclusive. Except as otherwise expressly provided in this Agreement or any other Transaction Document, no remedy provided for by this Agreement or any other Transaction Document shall be exclusive of any other remedy, each and every remedy shall be cumulative and in addition to any other remedy, and no delay or omission to exercise any right or remedy shall impair any such right or remedy or shall be deemed to be a waiver of any Event of Default.
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- Rights of Secured Parties
- Performance of Obligations; Advances by Agent.
- Performance of Obligations. If the Pledgor shall have defaulted under, or failed to perform, observe or comply with, any of the representations, warranties, covenants, agreements, terms, conditions, restrictions and other provisions contained in this Agreement or any other Transaction Document and applicable to the Pledgor, then, at any time (and from time to time), the Agent may (but shall not be obligated to), at its sole option and in its sole and absolute discretion, without notice to, or consent of, the Pledgor or any other Person, and in its own name or on behalf of the Pledgor, (i) in the case of a covenant, obligation or agreement, perform or cause to be performed the same, and (ii) take any and all other actions as the Agent may deem to be reasonably necessary or appropriate in order to correct such breach, default or failure, or the circumstances giving rise thereto.
- Advances by Agent. The Agent may expend such sums as the Agent may deem to be reasonably necessary or appropriate in the performance of any actions permitted to be taken by it under Section 6.1(a) (Performance of Obligations) above, including, without limitation, all expenditures that the Agent may make in connection with (i) taking any action on behalf of the Pledgor or the Borrower under the Borrower LLC Agreement or otherwise in respect of the Borrower Equity Interests, (ii) the release of a Lien not permitted hereunder, (iii) defending against any Adverse Claim, (iv) the protection of the security granted under this Agreement or (v) compliance with Applicable Law in relation to any of the foregoing. All such sums and amounts so expended shall be repayable by the Pledgor within five Business Days following written notice thereof and demand therefor, shall constitute additional Secured Obligations and shall bear interest from the date that said amounts are expended until the date that they are repaid by the Pledgor at the rate and in the manner set forth in Section 2.07 (Payments and Computations, Etc.) of the Loan Agreement. The Agent may make any payment authorized under this Section 6.1(b) in accordance with any bill, statement or estimate, without inquiry into the accuracy of such bill, statement or estimate or into the validity of any tax assessment, sale, forfeiture, tax lien, title or claim.
- Pledgor Remains Liable. No performance or other action by the Agent under Section 6.1(a) (Performance of Obligations) above, and no advance or expenditure by the Agent under Section 6.1(b) (Advances by Agent) above, shall relieve the Pledgor of any obligation, or result in any cure or waiver of any default or Event of Default, under the terms of this Agreement or any other Transaction Documents.
- Power of Attorney.
- Grant. Following the occurrence of an Event of Default, which results in the Secured Obligations becoming due and payable, unless and until the Final Settlement Date shall have occurred, in addition to other powers of attorney contained in this Agreement and the other Transaction Documents, the Pledgor hereby designates and appoints the Agent, and each of its Representatives and nominees, as attorney-in-fact of the Pledgor, irrevocably and with power of substitution, and grants to the Agent, and
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- to each of its Representatives and nominees, an irrevocable proxy, with authority to take any or all of the following actions:
- to demand, collect, settle, compromise, adjust and give discharges and releases concerning the Collateral, all as the Agent may determine in respect of the Collateral;
- to commence and prosecute any actions at any court for the purposes of collecting any of the Collateral and enforcing any other right in respect thereof;
- to defend, settle, adjust or compromise any action, suit or proceeding brought and, in connection therewith, give such discharge or release as the Agent may deem appropriate in respect of the Collateral; provided, that the same does not impose any civil or criminal liability on the Pledgor or contain an admission of guilt on the part of the Pledgor;
- to pay or discharge taxes, Liens or other encumbrances levied or placed on or threatened against the Collateral;
- to direct any parties liable for any payment under or with respect to any of the Collateral to make payment of any and all monies due and to become due thereunder directly to the Agent or as the Agent shall direct;
- to receive payment of and receipt for any and all monies, claims, and other amounts due and to become due at any time in respect of or arising out of any Collateral;
- to sign and endorse any drafts, assignments, notices and other documents relating to the Collateral;
- to execute and deliver and file all assignments, conveyances, statements, financing statements, continuation statements, pledge agreements, affidavits, notices and other agreements, instruments and documents that the Agent may determine necessary in order to perfect and maintain the security interests, liens and other rights granted in this Agreement and in order to fully consummate all of the transactions contemplated herein;
- to (A) exercise the rights, powers, privileges and remedies of the Pledgor under the Borrower LLC Agreement (including, without limitation, those described in Article 5 (Remedies) above) and (B) cause or direct the Borrower to take any actions as may be consistent with this Agreement and the other Transaction Documents; and
- to do and perform all such other acts and things as the Agent may deem to be reasonably necessary, proper or advisable to enforce the Agent's rights with respect to the Collateral.
- Actions By Agent. The Agent agrees that neither it nor any of its Representatives shall take any action under the power of attorney granted under Section 6.2(a) (Grant) above unless an Event of Default shall have occurred and be continuing.
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- Irrevocability, Etc. The power of attorney and irrevocable proxy granted under this Section 6.2 is (i) a power coupled with an interest and shall be irrevocable at all times prior to the Final Settlement Date and (ii) conferred on the Agent solely to (A) protect and preserve the Collateral, (B) realize upon its security interest in the Collateral and (C) otherwise exercise, preserve and protect the rights and interests of the Agent (on behalf of itself and the other Secured Partes) under the Related Documents.
- Ratification; No Fiduciary Duties. The Pledgor hereby ratifies all that said attorneys-in-fact shall lawfully do or cause to be done by virtue of the power of attorney granted under this Section 6.2, in each case pursuant to the powers granted under this Section 6.2. The Pledgor hereby acknowledges and agrees that the Agent and its Representatives shall have no fiduciary duties to the Pledgor or the Borrower in acting pursuant to power of attorney granted under this Section 6.2, and the Pledgor hereby waives any claims or rights of a beneficiary of a fiduciary relationship under this Agreement.
- Secured Parties Not Liable. None of the Agent, any other Secured Party or any of their respective Representatives (a) shall be (i) under any duty to exercise or withhold the exercise of any of the rights, powers, privileges and options expressly or implicitly granted to any Secured Party under this Agreement or any other Transaction Document or (ii) liable for any failure to do so or any delay in doing so or (b) liable for any act or omission or for any error of judgment or any mistake of fact or law, whether its capacity as attorney-in-fact on behalf of the Pledgor or in its individual capacity (except for its, their or such Person's own gross negligence or willful misconduct, as finally determined by a court of competent jurisdiction, or, in the case of the Agent or any Secured Party, the breach of its obligations expressly set forth in this Agreement).
- Agent's Duty of Care. Other than the exercise of reasonable care to ensure the safe custody of the Collateral while being held by the Agent under this Agreement, the Agent shall have no duty or liability to preserve rights pertaining thereto, it being understood and agreed that the Pledgor shall be responsible for preservation of all rights in the Collateral, and the Agent shall be relieved of all responsibility for Collateral upon surrendering it or tendering the surrender of it to the Pledgor. The Agent shall be deemed to have exercised reasonable care in the custody and preservation of the Collateral in its possession if such Collateral is accorded treatment substantially equal to that which the Agent affords its own property, which shall be no less than the treatment employed by a reasonable and prudent agent in the industry, it being understood that the Agent shall have no responsibility for taking any necessary steps to preserve rights against any parties with respect to any Collateral.
- Miscellaneous
- Term and Termination.
- Continuing Agreement. This Agreement shall be a continuing agreement in every respect and shall remain in full force and effect at all times until it terminates pursuant to the terms of this Section 7.1.
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- Termination and Release. (i) Subject to Sections 7.1(c) (Survival) and 7.1(d) (Continuation) below, this Agreement, and the Agent's security interest in the Collateral, shall automatically terminate on the Final Settlement Date, and (ii) as soon as reasonably practicable thereafter, the Agent shall, at the expense of the Pledgor, (A) release all of the liens and security interests granted under this Agreement, (B) deliver all UCC termination statements and other documents reasonably requested by the Pledgor evidencing such termination and (C) return to or at the direction of the Pledgor any instruments, Borrower Equity Interest Certificates, other certificates, powers or transfers previously delivered to the Agent under Section 3.5 (Delivery of Collateral) above and then remaining in the possession of the Agent.
- Survival. Notwithstanding Section 7.1(b) (Termination and Release) above, all releases provided under this Agreement, and all other provisions that by their terms expressly survive termination of this Agreement, shall be continuing and shall survive termination of this Agreement until the expiration of the applicable statute of limitations.
- Continuation. Notwithstanding Section 7.1(b)(i), if, at any time, any payment in respect of all or any portion of the Secured Obligations is rescinded or must otherwise be restored or returned by any Secured Party as a preference, fraudulent conveyance or otherwise under any bankruptcy or other insolvency law, then (i) this Agreement shall continue to be effective, or shall be automatically reinstated, as the case may be, in each case as though such payment had not been made, and (ii) all reasonable and documented out-of-pocket costs and expenses (including, without limitation, any reasonable and documented legal and advisor fees and disbursements) incurred by any Secured Party in defending and enforcing such reinstatement shall be deemed to be included as a part of the Secured Obligations.
- Binding Effect; Assignment. This Agreement shall be binding upon, and inure to the benefit of, the Parties and each of the other Secured Parties. The Pledgor may not assign, transfer, pledge, participate or otherwise convey any of its obligations under this Agreement, and any actual or purported assignment, transfer, pledge, participation or other conveyance by the Pledgor of any of its rights or obligations under this Agreement shall be null and void ab initio and of no force or effect. The rights and obligations of the Agent under this Agreement may be assigned, novated, transferred, pledged, participated or otherwise conveyed to the same extent that the Agent may assign, novate, transfer, pledge, participate or otherwise convey its respective rights under the Loan Agreement. Each Secured Party (other than the Agent) shall constitute a third-party beneficiary of this Agreement.
- Amendments. No amendment, waiver, or other modification of any provision of this Agreement shall be effective unless in writing and signed by the Agent (acting at the direction of the Required Lenders pursuant to the terms of the Loan Agreement) and the Pledgor.
- Notices. All notices and other communications provided for under this Agreement shall, unless otherwise stated herein, be in writing and mailed, transmitted or delivered to the relevant Person at its address set forth (or referenced) in Section 14.2 (Notices) of the Loan Agreement or at such other address as shall be designated by such Person in a written notice delivered in accordance with Section 14.2 (Notices) of the Loan Agreement. All such notices and communications shall be effective upon receipt, or in the case of an electronic transmission, upon confirmation of receipt thereof.
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- Transaction Document; Final Agreement. This Agreement constitutes a "Transaction Document," within the meaning of the Loan Agreement. This Agreement, taken together with the other Transaction Documents, represents the final, complete, and exclusive expression of the Parties and supersedes any and all prior oral or written agreements relating to the subject matter hereof.
- Execution in Counterparts. This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement.
- Governing Law. THIS Agreement SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW PRINCIPLES THEREOF, EXCEPT FOR SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK.
- Submission to Jurisdiction. Each Party irrevocably and unconditionally submits to the non-exclusive jurisdiction of any United States Federal or New York State court sitting in Manhattan, and any appellate court from any such court, solely for the purpose of any suit, action or proceeding brought to enforce its obligations under, or relating in any way to, this Agreement.
- Waiver of Immunity. To the extent that the Pledgor has or hereafter may acquire any immunity (sovereign or otherwise) from any legal action, suit or proceeding, from jurisdiction of any court or from set off or any legal process (whether service or notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise) with respect to itself or any of its property, the Pledgor hereby irrevocably waives and agrees not to plead or claim such immunity in respect of any action brought to enforce its obligations under, or relating in any way to, this Agreement.
- Forum. Each party hereto irrevocably waives, to the fullest extent it may effectively do so, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court and any right of jurisdiction on account of its place of residence or domicile and irrevocably consents to the service of any summons and complaint and any other process by the mailing of copies of such process to it at the address specified for it in Section 11.2 (Notices) of the Loan Agreement (or otherwise in accordance with Section 7.4 (Notices) above). The Pledgor HEREBY AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS SECTION 7.10 SHALL AFFECT THE RIGHT OF the Pledgor, the Agent or any other Secured Party TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR AFFECT THE RIGHT OF the Pledgor, the Agent or any other Secured Party TO BRING ANY ACTION OR PROCEEDING AGAINST such other party OR ITS PROPERTY IN THE COURTS OF OTHER JURISDICTIONS.
- Waiver of Jury Trial. Each party hereto hereby iRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY INSTRUMENT OR DOCUMENT DELIVERED HEREUNDER.
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- Headings. The headings in this Agreement are for convenience of reference only and shall not affect the interpretation or construction of this Agreement.
- Severability. Each provision of this Agreement shall be interpreted in such manner as to be effective and valid under Applicable Law, but if any provision of this Agreement shall be prohibited by or be invalid under such law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement.
[Signature Page Follows]
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IN WITNESS WHEREOF, the Parties have caused this Pledge and Security Agreement to be duly executed by their respective officers as of the day and year first above written.
DEPALMA ACQUISITION I LLC
As Pledgor
By: /s/ Michael Hutchby
Name: Michael Hutchby
Title: Chief Financial Officer
Signature pages to Equity Pledge Agreement—1 of 2
DZ BANK AG DEUTSCHE ZENTRAL-GENOSSENSCHAFTSBANK, FRANKFURT AM MAIN, NEW YORK BRANCH
As Agent
By: /s/ Alexander Ploch
Name: Alexander Ploch
Title: Executive Director
By: /s/ Nellie Flek
Name: Nellie Flek
Title: Director
Signature pages to Equity Pledge Agreement—2 of 2
Exhibit A
Form of Acknowledgment of Pledge
[***]
| Exhibit A-1 | Equity Pledge Agreement<br><br>Form of Acknowledgment of Pledge |
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EX-10.6
Certain confidential information contained in this document, marked by “[***]”, has been omitted pursuant to Item 601(b)(10)(iv) of Regulation S-K because it is both (i) not material and (ii) is the type of information that the Company treats as private or confidential. Certain schedules (or similar attachments) also marked by “[***]” have been omitted pursuant to Item 601(a)(5) of Regulation S-K.
EXECUTION COPY
Membership Interest Purchase Agreement
This Membership Interest Purchase Agreement, dated as of December 30, 2025 (as amended, restated, supplemented or otherwise modified from time to time, this “Agreement”), is entered into between TML Holding, Inc., a Delaware corporation (“Seller”), Marblegate Capital Corporation, a Delaware corporation (“Buyer”), and DZ Bank AG Deutsche Zentral-Genossenschaftsbank, Frankfurt Am Main, New York Branch (“DZ Bank”).
Recitals
WHEREAS, TML IV LLC, a Delaware limited liability company (the “Company”), has been formed pursuant to a Certificate of Formation, dated June 23, 2021, filed with the Secretary of State of the State of Delaware (the “Certificate of Formation”), and is governed by the Limited Liability Company Agreement, dated as of September 30, 2021 (as amended, restated, supplemented or otherwise modified from time to time, the “LLC Agreement”), by the Seller, as sole member;
WHEREAS, Seller owns all of the issued and outstanding limited liability company interests (the “Membership Interests”) of the Company;
WHEREAS, the Company is, as of the date hereof, exclusively engaged in owning, holding, administering and financing certain taxi medallion loans (together with all related guarantees, reserve fund, reimbursement and indemnity rights, collateral and ancillary rights, and including mortgages, judgements, and rights to foreclosed medallion and other assets and associated deficiency claims, each a “Medallion Loan,” and collectively, the “Medallion Loans”);
WHEREAS, the Company acquired the Medallion Loans pursuant to and in connection with that certain Settlement Agreement, dated as of September 30, 2021, among Taxi Medallion Loan Trust III, Medallion Financial Corp., Medallion Funding LLC, Medallion Capital, Inc., Freshstart Venture Capital Corp., and DZ Bank (as agent and lender) (the “Settlement Agreement”);
WHEREAS, DZ Bank acts as manager of the Company (in such capacity, the “Manager”), pursuant to the Collateral Management Agreement, dated as of September 30, 2021 (the “Management Agreement”), among the Manager, the Company, as asset owner, and the Seller, as asset owner member;
WHEREAS, DZ Bank is the holder of a term debt security, dated September 30, 2021 (the “Term Debt Security”), which has been issued pursuant to the Term Debt Security Purchase Agreement, dated as of September 30, 2021 (as amended, restated, supplemented or otherwise modified from time to time, the “TDS Purchase Agreement”);
WHEREAS, since their acquisition by the Company, the Medallion Loans have been serviced by Field Point Servicing LLC, a Delaware limited liability company (“Field Point”), pursuant to that certain Medallion Loan Servicing Agreement, dated as of September 30, 2021 (the
“Servicing Agreement”), among Field Point, as servicer (in such capacity, the “Servicer”), the Company, Taxi Medallion Loan Trust III, and, for the limited purposes specified therein, DZ Bank;
WHEREAS, Seller wishes to sell to Buyer, and Buyer wishes to purchase from Seller, all of the Membership Interests, subject to the terms and conditions set forth herein;
WHEREAS, Seller wishes to direct that the proceeds of the sale of the Membership Interests hereunder be paid to DZ Bank, in satisfaction of the Company’s obligations to DZ Bank under the Term Debt Security (with such proceeds being deemed to have been contributed by the Seller to the Company, simultaneously with the sale); and
WHEREAS, in connection herewith, the Buyer, the Seller, DZ Bank, Field Point and Lord Securities Corporation are entering into a Payoff and Settlement Letter, dated as of the date hereof (the “Payoff Letter”).
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
Purchase and Sale
Purchase and Sale. Subject to the terms and conditions set forth herein, at the Closing (as defined herein), Seller shall sell to Buyer, and Buyer shall purchase from Seller, all of Seller’s right, title, and interest in and to the Membership Interests, free and clear of any mortgage, pledge, lien, charge, security interest, claim, or other encumbrance (“Encumbrance”), for the consideration specified in Section 1.02.
Purchase Price. The aggregate purchase price for the Membership Interests shall be $15,846,028.41 (the “Purchase Price”). Seller hereby acknowledges that it intends to apply the full amount of the Purchase Price, as a capital contribution to the Company, with the Company applying the full amount of such capital contribution to the repayment of the Term Debt Security (whereupon DZ Bank shall forgive and discharge any remaining balance thereof). Accordingly, the Buyer shall pay (and the Seller hereby directs the Buyer to pay) the Purchase Price to DZ Bank at the Closing in cash by wire transfer of immediately available funds to the account or accounts designated in writing by DZ Bank to Buyer on or prior to the Closing Date (as defined below).
Closing. The closing of the transactions contemplated by this Agreement (the “Closing”) shall take place simultaneously with the execution of this Agreement on the date of this Agreement (the “Closing Date”), by exchange of documents and signatures (or their electronic counterparts).
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer that the statements contained in this ARTICLE II are true and correct as of the date hereof.
Organization and Authority of Seller; Enforceability. Seller is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware. Seller has full corporate power and authority to enter into this Agreement and the documents to be delivered hereunder, to carry out its obligations hereunder and to consummate the transactions contemplated hereby. The execution, delivery, and performance by Seller of this Agreement and the documents to be delivered hereunder and the consummation of the transactions contemplated hereby have been duly authorized by all requisite corporate action on the part of Seller. This Agreement and the documents to be delivered hereunder have been duly executed and delivered by Seller, and (assuming due authorization, execution, and delivery by Buyer and DZ Bank) this Agreement and the documents to be delivered hereunder constitute legal, valid, and binding obligations of Seller, enforceable against Seller in accordance with their respective terms, except as may be limited by any bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, or other similar laws affecting the enforcement of creditors’ rights generally or by general principles of equity.
No Conflicts; Consents. The execution, delivery, and performance by Seller of this Agreement and the documents to be delivered hereunder, and the consummation of the transactions contemplated hereby, do not and will not: (a) violate or conflict with the certificate of incorporation, by-laws, or other organizational documents of Seller; (b) violate or conflict with any judgment, order, decree, statute, law, ordinance, rule, or regulation applicable to Seller, except where the violation or conflict would not, individually or in the aggregate, have a material adverse effect on Seller’s ability to consummate the transactions contemplated hereby on a timely basis; (c) conflict with, or result in (with or without notice or lapse of time or both) any violation of, or default under, or give rise to a right of termination, acceleration or modification of any obligation or loss of any benefit under any contract or other instrument to which Seller is a party, except where the conflict, violation, default, termination, cancellation, modification, or acceleration would not, individually or in the aggregate, have a material adverse effect on Seller’s ability to consummate the transactions contemplated hereby on a timely basis; (d) result in any violation, conflict with or constitute a default under the Certificate of Formation or the LLC Agreement; or (e) result in the creation or imposition of any Encumbrance on the Membership Interests. No consent, approval, waiver, or authorization is required to be obtained by Seller from any person or entity (including any governmental authority) in connection with the execution, delivery, and performance by Seller of this Agreement and the consummation of the transactions contemplated hereby, except such consents, approvals, waivers, or authorizations which would not, in the aggregate, have a material adverse effect on the Seller’s ability to consummate the transactions contemplated hereby on a timely basis.
Legal Proceedings. There is no claim, action, suit, proceeding or governmental investigation (“Action”) of any nature pending or, to Seller’s knowledge, threatened against or by Seller (a) relating to or affecting the Membership Interests; or (b) that challenges or seeks to prevent, enjoin, or otherwise delay the transactions contemplated by this Agreement,
except any Actions that would not, individually or in the aggregate, have a material adverse effect on Seller’s ability to consummate the transactions contemplated hereby on a timely basis. To Seller’s knowledge, no event has occurred or circumstances exist that may give rise to, or serve as a basis for, any such Action.
Business of Seller. Seller was formed for the sole purpose of owning the Membership Interests and has not engaged in any other business activities since its formation.
Ownership of Membership Interests.
Seller is the sole legal, beneficial, record, and equitable owner of the Membership Interests, free and clear of all Encumbrances whatsoever other than the LLC Agreement.
The Membership Interests were issued in compliance with applicable laws. To Seller’s knowledge, the Membership Interests were not issued in violation of the organizational documents of the Company or any other agreement, arrangement, or commitment to which Seller or the Company is a party and are not subject to or in violation of any preemptive or similar rights of any person.
Other than the organizational documents of the Company, there are no voting trusts, proxies, or other agreements or understandings in effect with respect to the voting or transfer of any of the Membership Interests.
LLC Agreement. Attached hereto as Exhibit A is the LLC Agreement, which agreement is in full force and effect and is the only agreement in effect with respect to the matters described therein.
Company Matters.
Since the inception of the Company, (i) the Company has been (A) engaged exclusively in the business of owning, holding, administering and financing loans secured by taxicab medallions and other assets and (B) managed by the Manager, (ii) the Company’s Medallion Loans have been serviced by Field Point, (iii) has not pledged any Medallion Loan as security for any obligation whatsoever, other than the “Obligations” (as defined in the TDS Purchase Agreement), and (v) has not modified any Medallion Loan other than pursuant to its Servicing Agreement with Field Point.
The Company is not a party to any material contract, other than (i) the TDS Purchase Agreement, the Term Debt Security, the Servicing Agreement, and the other “Terminated Documents” (as defined in the Payoff Letter) (collectively, the “Terminated Documents”), (ii) the Payoff Letter, (iii) the Settlement Agreement, and (iv) the medallion loan agreements (or equivalent), and any agreements or documents, relating to the Medallion Loans or any associated guarantees, reserve funds, reimbursement and indemnity rights, collateral and ancillary rights.
Any documented servicing fees, legal and professional fees, liabilities, and other costs, fees and expenses, in each case accrued, incurred, or payable by the Company
to third parties, whether incurred pursuant to the Terminated Documents, in connection with the Closing or otherwise, in all cases on or prior to the Closing Date (any of the foregoing, “Pre-Closing Liabilities”), have been (or will be, at the Closing) paid or otherwise satisfied in full; provided, however, that, Pre-Closing Liabilities shall not be deemed to include liabilities arising under the Medallion Loans or related assets of the Company.
Brokers. No broker, finder, or investment banker is entitled to any brokerage, finder’s, or other fee or commission in connection with the transactions contemplated by this Agreement based upon arrangements made by or on behalf of Seller.
No Other Representations or Warranties. Except for the representations and warranties contained in this ARTICLE II, neither Seller nor any member, director, officer, employee, or agent of Seller has made or makes any other express or implied representation or warranty, either written or oral, on behalf of Seller.
REPRESENTATIONS AND WARRANTIES OF DZ Bank
DZ Bank represents and warrants to Buyer that the statements contained in this ARTICLE III are true and correct as of the date hereof.
Medallion Loans.
Exhibit B hereto sets forth a true, correct and complete list, in all material respects, of each Medallion Loan owned by the Company as of the date hereof, including, with respect to each such loan, the obligor, original principal amount, current principal balance, interest rate, maturity date and medallion number(s).
The Company is the sole legal and beneficial owner of, and has good and marketable title to, each Medallion Loan listed in Exhibit B and all related collateral, guarantees and program rights, free and clear of any Encumbrances (other than Encumbrances (x) arising in the ordinary course of servicing such Medallion Loan or (y) that will be released and discharged at the Closing pursuant to the Payoff Letter). The Company has not sold, assigned, pledged, transferred or otherwise disposed of any right, title or interest in or to any Medallion Loan or any related collateral, guarantees or program rights (other than by Field Point in the ordinary course of servicing such Medallion Loan).
Company Matters. To its actual knowledge, each of the Seller’s representations and warranties set forth in Section 2.07 of this Agreement are true and correct.
Compliance with Settlement Agreement. With respect to the Settlement Agreement and any agreement, instrument or other document executed and delivered by DZ Bank in connection with the agreements and transactions set forth therein: (a) the copy of the Settlement Agreement that has been provided to the Buyer is a true, correct and complete copy; (b) DZ Bank is, and at all relevant times has been, in compliance, in all material respects with, and is not, and at all relevant times has not been, in default, in any material respect, under the Settlement
Agreement; (d) to DZ Bank’s knowledge, the Company is not in default under the Settlement Agreement; and (e) DZ Bank has not received notice of any claims asserted by any party to the Settlement Agreement (or any of their respective successors and assigns) in connection with the Settlement Agreement.
Brokers. No broker, finder, or investment banker is entitled to any brokerage, finder’s, or other fee or commission in connection with the transactions contemplated by this Agreement based upon arrangements made by or on behalf of DZ Bank.
No Other Representations or Warranties. Except for the representations and warranties contained in this ARTICLE III, neither DZ Bank nor any member, director, officer, employee, or agent of DZ Bank has made or makes any other express or implied representation or warranty, either written or oral, on behalf of DZ Bank.
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller that the statements contained in this ARTICLE IV are true and correct as of the date hereof.
Organization and Authority of Buyer; Enforceability. Buyer is a corporation duly organized, validly existing and in good standing under the laws of the state of Delaware. Buyer has full corporate power and authority to enter into this Agreement and the documents to be delivered hereunder, to carry out its obligations hereunder and to consummate the transactions contemplated hereby. The execution, delivery, and performance by Buyer of this Agreement and the documents to be delivered hereunder and the consummation of the transactions contemplated hereby have been duly authorized by all requisite corporate action on the part of Buyer. This Agreement and the documents to be delivered hereunder have been duly executed and delivered by Buyer, and (assuming due authorization, execution, and delivery by Seller and DZ Bank) this Agreement and the documents to be delivered hereunder constitute legal, valid, and binding obligations of Buyer enforceable against Buyer in accordance with their respective terms, except as may be limited by any bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, or other similar laws affecting the enforcement of creditors’ rights generally or by general principles of equity.
No Conflicts; Consents. The execution, delivery and performance by Buyer of this Agreement and the documents to be delivered hereunder, and the consummation of the transactions contemplated hereby, do not and will not: (a) violate or conflict with the certificate of incorporation, by-laws or other organizational documents of Buyer; or (b) violate or conflict with any judgment, order, decree, statute, law, ordinance, rule, or regulation applicable to Buyer, except where the violation or conflict would not, individually or in the aggregate, have a material adverse effect on Buyer’s ability to consummate the transactions contemplated hereby on a timely basis. No consent, approval, waiver, or authorization is required to be obtained by Buyer from any person or entity (including any governmental authority) in connection with the execution, delivery, and performance by Buyer of this Agreement and the consummation of the transactions contemplated hereby, except such consents, approvals, waivers, or authorizations which would
not, in the aggregate, have a material adverse effect on the Buyer’s ability to consummate the transactions contemplated hereby on a timely basis.
Investment Purpose. Buyer is acquiring the Membership Interests solely for its own account for investment purposes and not with a view to, or for offer or sale in connection with, any distribution thereof. Buyer acknowledges that the Membership Interests are not registered under the Securities Act of 1933, as amended, or any state securities laws, and that the Membership Interests may not be transferred or sold except pursuant to the registration provisions of the Securities Act of 1933, as amended or pursuant to an applicable exemption therefrom and subject to state securities laws and regulations, as applicable.
Brokers. No broker, finder or investment banker is entitled to any brokerage, finder’s, or other fee or commission in connection with the transactions contemplated by this Agreement based upon arrangements made by or on behalf of Buyer.
Legal Proceedings. There is no Action pending or, to Buyer’s knowledge, threatened against or by Buyer or any affiliate of Buyer that challenges or seeks to prevent, enjoin, or otherwise delay the transactions contemplated by this Agreement, except any Actions that would not, individually or in the aggregate, have a material adverse effect on Buyer’s ability to consummate the transactions contemplated hereby on a timely basis. To Buyer’s knowledge, no event has occurred or circumstances exist that may give rise or serve as a basis for any such Action.
Closing Deliveries
Seller’s Deliveries. At the Closing, Seller shall deliver to Buyer the following:
The assignment and assumption agreement, in the form attached hereto as Exhibit C (the “Assignment and Assumption”), executed by Seller;
An executed amendment to the LLC Agreement reflecting Buyer’s (or its designee’s) substitution as sole member of the Company (the “LLC Agreement Amendment”);
An appropriate U.S. federal withholding tax form of DZ Bank, with respect to the payment of the Purchase Price;
Evidence that the blocked account agreement with respect to the deposit account (account number [***]), maintained at Bank of America, N.A. (the “Lockbox Account”), and the securities account control agreement with respect to the securities account (account number [***]), maintained at U.S. Bank National Association (the “Collection Account”), have been terminated, with control over the Lockbox Account and the Collection Account returned to the Company; and
Such evidence that Buyer may reasonably request that the Term Debt Security has been paid in full, forgiven or discharged, and the lien under the TDS Purchase
Agreement has been terminated, and the other arrangements to which the Company is a party have been terminated.
Buyer’s Deliveries. At the Closing, Buyer shall deliver the following to Seller:
The Purchase Price, in accordance with Section 1.02; and
The Assignment and Assumption and the LLC Agreement Amendment, each executed by Buyer.
Payoff Letter. As of the Closing Date, the Payoff Letter shall be executed and delivered by the parties thereto.
Indemnification
Survival. Subject to the limitations and other provisions of this Agreement, the representations, warranties, and covenants contained herein and all related rights to indemnification shall survive the Closing and shall remain in full force and effect until the date that is eighteen (18) months from the Closing Date (except as provided in the last paragraphs of Sections 6.02 and 6.03 below). For the avoidance of doubt, the parties hereby agree and acknowledge that the survival periods in this Section 6.01 are contractual statutes of limitations and any claim brought by any party pursuant to this ARTICLE VI must be brought or filed prior to the expiration of the applicable survival period. Notwithstanding the foregoing, any claims asserted in good faith with reasonable specificity (to the extent known at the time) and in writing by notice from the non-breaching party to the breaching party prior to the expiration date of the applicable survival period shall not thereafter be barred by the expiration of such survival period and such claims shall survive until finally resolved.
Indemnification By Seller. Subject to the other terms and conditions of this ARTICLE VI, Seller shall defend, indemnify, and hold harmless Buyer, its affiliates, and their respective stockholders, directors, managers, officers and employees (the foregoing, collectively, “Buyer Indemnified Parties”) from and against:
all actual out-of-pocket losses, damages, liabilities, costs, or expenses, including reasonable attorneys’ fees and disbursements (a “Loss”), arising from or relating to any inaccuracy in or breach of any of the representations or warranties of Seller contained in this Agreement;
any Loss arising from or relating to any breach or non-fulfillment of any covenant, agreement, or obligation to be performed by Seller pursuant to this Agreement;
any Pre-Closing Liabilities; or
any COD Tax Liability.
Solely with respect to Section 6.02(d), Seller’s obligations to defend, indemnify, and hold harmless Buyer Indemnified Parties shall remain in full force and effect until the date that is four (4) years from the date that Seller files its tax return for the taxable year that includes the Closing Date (subject to extension in the event that a tax fraud claim is made in relation to any COD Tax Liability).
- Indemnification by DZ Bank. Subject to the other terms and conditions of this ARTICLE VI, DZ Bank shall defend, indemnify, and hold harmless Buyer Indemnified Parties from and against all Losses arising from or relating to:
- any inaccuracy in or breach of any of the representations or warranties of DZ Bank contained in this Agreement;
- any Loss arising from or relating to any breach or non-fulfillment of any covenant, agreement, or obligation to be performed by Seller pursuant to this Agreement;
- any Pre-Closing Liabilities; or
- any COD Tax Liability.
Solely with respect to Section 6.03(d), DZ Bank’s obligations to defend, indemnify, and hold harmless Buyer Indemnified Parties shall remain in full force and effect until the date that is four (4) years from the date that Seller files its final tax return for the taxable year that includes the Closing Date (subject to extension in the event that a tax fraud claim is made in relation to any COD Tax Liability).
Indemnification By Buyer. Subject to the other terms and conditions of this ARTICLE VI, Buyer shall defend, indemnify, and hold harmless Seller and DZ Bank, their respective affiliates, and their respective stockholders, directors, officers, and employees from and against all Losses arising from or relating to:
any inaccuracy in or breach of any of the representations or warranties of Buyer contained in this Agreement;
any breach or non-fulfillment of any covenant, agreement, or obligation to be performed by Buyer pursuant to this Agreement; and
any Losses associated, in any manner, with the Company or its assets arising after the Closing Date.
Indemnification Procedures. Except as otherwise provided in this Section 6.05, whenever any claim shall arise for indemnification under this ARTICLE VI, the party seeking indemnification (the “Indemnified Party”) shall promptly provide written notice of such claim to the party from whom indemnification is sought (the “Indemnifying Party”). The failure to give prompt notice shall not, however, relieve the Indemnifying Party of its indemnification obligations, except and only to the extent that the Indemnifying Party forfeits rights or defenses by reason of such failure. In connection with any claim giving rise to indemnity hereunder resulting from or arising out of any Action commenced by a person or entity who is not a party to this
Agreement, the Indemnifying Party, at its sole cost and expense and upon written notice to the Indemnified Party, may assume the defense of any such Action with its counsel. The Indemnified Party shall be entitled to participate in the defense of any such Action, with its counsel and at its own cost and expense, subject to the Indemnifying Party’s right to control the defense thereof. If the Indemnifying Party does not assume the defense of any such Action, the Indemnified Party may, but shall not be obligated to, defend against such Action. Neither party shall settle any Action without the other party’s prior written consent (which consent shall not be unreasonably withheld or delayed).
Payments. Once a Loss is agreed to by the Indemnifying Party or finally adjudicated to be payable pursuant to this ARTICLE VI, the Indemnifying Party shall satisfy its obligations within 30 business days of such agreement or final, non-appealable adjudication by wire transfer of immediately available funds.
Tax Treatment of Indemnification Payments. All indemnification payments made under this Agreement shall be treated by the parties as an adjustment to the Purchase Price for tax purposes, unless otherwise required by law.
Exclusive Remedies. The parties acknowledge and agree that following the closing, the provisions of this ARTICLE VI shall be their exclusive remedy for any and all claims relating to the subject matter of this Agreement or any of the other documents to be delivered hereunder, except for claims arising from fraud, criminal activity, or willful misconduct on the part of a party hereto in connection with the transactions contemplated by this Agreement and claims for specific performance or other equitable remedies.
CERTAIN TAX MATTERS
Transfer Taxes. Buyer shall pay, and shall reimburse Seller for, any sales, use or transfer taxes, documentary charges, recording fees or similar taxes, charges, fees or expenses, if any, that become due and payable as a result of the transactions contemplated by this Agreement (“Transfer Taxes”). Buyer and Seller shall reasonably cooperate to claim any available exemptions from, or reductions in, any such Transfer Taxes.
Withholding Taxes. Buyer shall be entitled to deduct and withhold from amounts otherwise payable pursuant to this Agreement such amounts as are required to be deducted and withheld under applicable law. Buyer shall provide Seller with written notice of its intent to withhold at least ten (10) days prior to the Closing with a written explanation substantiating the requirement to deduct or withhold, and the parties shall use commercially reasonable efforts to cooperate to mitigate or eliminate any such withholding to the maximum extent permitted by law. Assuming Seller delivers the certificate described in Section 4.01(f), Buyer acknowledges and agrees that no withholding is required as of the date hereof. To the extent that amounts are so withheld and paid over to the appropriate tax authority by the Buyer, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the person in respect of which such deduction and withholding was made.
Tax Cooperation. Seller and DZ Bank shall provide Buyer and the Company with such cooperation as may be reasonably requested in connection with the preparation and filing of any tax filings of the Company, and any audit or other proceeding with respect to taxes of the Company, for all taxable periods or portions thereof ending on or before the Closing Date (it being understood that any reasonable and documented out-of-pocket costs and expenses incurred by the Seller or DZ Bank in connection therewith shall be borne by Buyer).
COD Tax Liability. Each of Seller and DZ Bank, and not Buyer or the Company, shall be solely responsible for any and all income taxes associated with the cancellation of amounts outstanding at the Closing under the TDS Purchase Agreement and the Term Debt Security (any such income tax liability, a “COD Tax Liability”), whether such income taxes are owed by Seller, the Company, or DZ Bank.
Miscellaneous
Expenses. Except as otherwise expressly provided elsewhere in this Agreement, all costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the party incurring such costs and expenses.
Further Assurances. Following the Closing, each of the parties hereto shall, and shall cause their respective affiliates to, execute and deliver such additional documents, instruments, conveyances and assurances and take such further actions as may be reasonably required to carry out the provisions hereof and give effect to the transactions contemplated by this Agreement. Upon reasonable request by the Buyer or its agents after the Closing Date, DZ Bank shall deliver an assignment of its rights under the Settlement Agreement, including with respect to Section 4 of the Settlement Agreement. The form of such assignment shall be acceptable to DZ Bank in its reasonable discretion.
Collections. Any and all collections and other funds received with respect to the Medallion Loan, any associated collateral or guarantees or the liquidation thereof (“Collections”), that are received by the Seller, the Servicer or any other Person on or prior to the Closing Date shall be paid to, and may be retained by, DZ Bank. Any Collections received after the Closing Date shall be for the account of the Buyer. If Seller or DZ Bank, or any of their respective affiliates, receives any Collections following the Closing Date, such party shall hold such funds in trust for the benefit of Buyer and shall, within two (2) business days of receipt, transfer such funds to or as directed by Buyer.
Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and shall be deemed to have been given (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by e-mail of a PDF document (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient or (d) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the following
addresses (or at such other address for a party as shall be specified in a notice given in accordance with this Section 8.04):
| If to Seller: | TML Holding, Inc.<br><br>c/o Lord Securities Corporation<br><br>10 Grand Central<br><br>155 E. 44th Street, Ste 905<br><br>New York, NY 10017<br><br>E-mail: [***]<br><br>Attention: [***] |
|---|---|
| If to Buyer: | Marblegate Capital Corporation<br><br>5 Greenwich Office Park<br><br>Suite 400<br><br>Greenwich, CT 06831<br><br>Attention: [***]<br><br>E-mail: [***] |
| If to DZ Bank: | DZ Bank AG Deutsche Zentral-Genossenschaftsbank, Frankfurt Am Main, New York Branch<br><br>One Vanderbilt Ave.<br><br>New York, NY 10017<br><br>Attention: Structured Finance-Asset Securitization<br><br>Email: [***]<br><br>Telephone: [***] |
Headings. The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.
Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the parties hereto shall negotiate in good faith to modify the Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
Entire Agreement. This Agreement and the documents to be delivered hereunder constitute the sole and entire agreement of the parties to this Agreement with respect to the subject matter contained herein, and supersede all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements in the body of this Agreement and those in documents to be delivered hereunder, the statements in the body of this Agreement will control.
Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. Neither party may assign its rights or obligations hereunder without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed. No assignment shall relieve the assigning party of any of its obligations hereunder.
No Recourse. In no event shall any officer, director, employee, shareholder, Affiliate, member, manager, agent, partner, principal or incorporator of any party hereto, or its successors or assigns, be personally liable for the payment or performance of such party’s obligations under this Agreement or any other document entered into in connection herewith; provided, however, that, for the avoidance of doubt, this Section 8.09 shall not relieve any party from liability for the failure to perform its own obligations under this Agreement or such other document.
No Third-Party Beneficiaries. Except as provided in ARTICLE VIII, this Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
Amendment and Modification. This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each party hereto.
Waiver. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. No waiver by any party shall operate or be construed as a waiver in respect of any failure, breach, or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction).
Submission to Jurisdiction. Any legal suit, action, or proceeding arising out of or based upon this Agreement or the transactions contemplated hereby may be instituted in the federal courts of the United States of America or the courts of the State of New York in each case located in the city of New York and county of New York, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
Waiver of Jury Trial. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT
IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Specific Performance. The parties agree that irreparable damage would occur if any provision of this Agreement were not performed in accordance with the terms hereof and that the parties shall be entitled to specific performance of the terms hereof, in addition to any other remedy to which they are entitled at law or in equity. Each party hereto (i) agrees that it shall not oppose the granting of such specific performance or relief and (ii) hereby irrevocably waives any requirements for the security or posting of any bond in connection with such relief.
Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail, or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
Release.
Effective as of the Closing, each of Seller and DZ Bank, on behalf of itself and each of its past, present and future affiliates, successors and assigns (collectively, for purposes of this Section 8.18(a), the “Releasing Parties”), hereby absolutely, unconditionally and irrevocably releases and forever discharges the Company of and from any and all claims, demands, actions, causes of action, suits, debts, obligations, liabilities, damages, losses, costs and expenses of any kind or nature whatsoever, whether known or unknown, suspected or unsuspected, absolute or contingent, direct or indirect, at law or in equity, that any of the Releasing Parties ever had, now has or hereafter can, shall or may have against the Company for, upon or by reason of any matter, cause or thing whatsoever from the beginning of time to the Closing Date, arising out of or relating to, in any way, the Management Agreement, the TDS Purchase Agreement, any other Terminated Document or any other written or oral agreement, contract, instrument, understanding or arrangement, entered into in connection therewith, provided that this Section 8.18(a) shall not affect the obligations and liabilities of the parties under this Agreement and the Payoff Letter.
Effective as of the Closing, each of the Company and the Buyer, on behalf of itself and each of its past, present and future affiliates, successors and assigns (collectively, for purposes of this Section 8.18(b), the “Releasing Parties”), hereby absolutely, unconditionally and irrevocably releases and forever discharges the Seller, DZ Bank and their respective affiliates of and from any and all claims, demands, actions, causes of action, suits, debts, obligations, liabilities, damages, losses, costs and expenses of any kind or nature whatsoever, whether known or unknown, suspected or unsuspected, absolute or contingent, direct or indirect, at law or in equity, that any of the Releasing Parties ever had, now has or hereafter can, shall or may have against the Seller, DZ Bank or any affiliate thereof for, upon or by reason of any matter, cause or thing whatsoever from the beginning of time to the Closing Date, arising out of or relating to, in any way, the Management Agreement, the TDS Purchase Agreement, any other Terminated
Document or any other written or oral agreement, contract, instrument, understanding or arrangement, entered into in connection therewith, or the assets or activities of the Company, provided that this Section 8.18(b) shall not affect the obligations and liabilities of the parties under this Agreement and the Payoff Letter.
[signature page follows]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
| TML HOLDING, INC. | |
|---|---|
| By: /s/ Albert J. Fioravanti<br><br>Name: Albert J. Fioravanti<br><br>Title: President | |
| MARBLEGATE CAPITAL CORPORATION | |
| By: /s/ Michael Hutchby<br><br>Name: Michael Hutchby<br><br>Title: Chief Financial Officer | |
| DZ BANK AG DEUTSCHE ZENTRAL-GENOSSENSCHAFTSBANK, FRANKFURT AM MAIN, NEW YORK BRANCH | |
| By: /s/ Alexander Ploch<br><br>Name: Alexander Ploch<br><br>Title: Executive Director | |
| By: /s/ Nellie Flek<br><br>Name: Nellie Flek<br><br>Title: Director | |
| Agreed and Acknowledged: | |
| TML IV LLC<br><br>By: Lord Securities Corporation, its Managing Agent | |
| By: /s/ Albert J. Fioravanti<br><br>Name: Albert J. Fioravanti<br><br>Title: President |
[Signature Page]
EXHIBIT A
LLC AGREEMENT
[***]
EXHIBIT B
SCHEDULE OF MEDALLION LOANS
[***]
EXHIBIT C
ASSIGNMENT AND ASSUMPTION
[***]
EX-10.7
Certain confidential information contained in this document, marked by “[***]”, has been omitted pursuant to Item 601(b)(10)(iv) of Regulation S-K because it is both (i) not material and (ii) is the type of information that the Company treats as private or confidential. Certain schedules (or similar attachments) also marked by “[***]” have been omitted pursuant to Item 601(a)(5) of Regulation S-K.
AUXILIOR CAPITAL PARTNERS, INC.
LOAN AND SECURITY AGREEMENT NO. 1019386
THIS LOAN AND SECURITY AGREEMENT (this “Agreement”) is made as of the 31st day of December, 2025, by and between AUXILIOR CAPITAL PARTNERS, INC. (together with its successors, assigns, and Participants, “Lender”), and, those certain wholly owned subsidiaries (each, an “SPV”) of DePalma Acquisition II LLC listed on Schedule B attached hereto (together with their successors and permitted assigns, “Borrower”).
Borrower is desirous of obtaining a loan from Lender and Lender is willing to make the loan to Borrower upon the terms and conditions set forth herein.
Capitalized terms used herein without definition shall have the meanings assigned to them in Schedule A attached hereto and, for purposes of this Agreement and the other Loan Documents, the rules of construction set forth in Schedule A shall govern.
NOW, THEREFORE, in consideration of the mutual covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties do hereby agree as follows:
ADVANCE OF LOAN.
The Loan. On the terms and conditions hereinafter set forth, the parties agree that Lender shall lend to Borrower certain sums (the “Loan”). Time is of the essence.
Promissory Note. The obligation to repay the Loan hereunder shall be evidenced by one or more promissory notes payable by Borrower to the order of Lender in form and substance satisfactory to Lender (hereinafter collectively referred to as the “Promissory Note”).
PAYMENTS AND PREPAYMENT OF LOAN.
Principal Payment. On each Payment Date, Borrower shall pay the aggregate principal payments owed with respect to the Loan as set forth in the Promissory Note; provided, however, on the Stated Maturity Date or date of acceleration of the Loan, Borrower shall repay in full the aggregate of then outstanding principal amount of the Loan plus all accrued and unpaid interest thereon, any prepayment fee applicable to the Loan as defined in the applicable Promissory Note(s) (“Prepayment Fee”) and all other amounts owed hereunder and under each Loan Document related to the Loan. Borrower shall pay accrued interest on the Loan on each Payment Date as provided in Section 2(d) hereof.
Prepayment. As set out on the applicable Promissory Note(s), Borrower shall have the right, on a Payment Date, upon thirty (30) days’ prior written notice to Lender, to prepay the Loan. If Borrower exercises its right of prepayment, Borrower shall pay to Lender the outstanding principal amount of the Loan, all accrued interest thereon, all other amounts owed under any Loan Document and any applicable Prepayment Fee, none of which shall be refundable.
Acceleration. Upon any acceleration of the Loan pursuant to this Agreement or any other Loan Document, Borrower shall immediately repay all (or if only a portion is accelerated thereunder, such portion of) the Loan then outstanding, including all accrued and unpaid interest thereon, plus the aggregate Prepayment Fee for the Loan and all other amounts owed under the Loan Documents.
(d) Interest. Borrower shall pay interest to Lender on the aggregate outstanding principal balance of the Loan at the rate specified in the Promissory Note (the “Loan Rate”). In no event will Lender charge interest at a rate that exceeds the highest rate of interest permissible under any law that a court of competent jurisdiction shall, in a final determination, deem applicable. Interest shall be payable on the outstanding principal amount of the Loan on each Payment Date. If any payment due hereunder or under any other Loan Document is not received within five (5) days of its due date, Borrower shall pay a late charge equal to five percent (5.00%) of the amount in arrears.
(e) Default Rate. Effective upon the occurrence of any Default and for so long as any Default shall be continuing, the Loan Rate shall automatically be increased by three percent (3.00%) per annum (such increased rate, the “Default Rate”), and all outstanding Obligations, including unpaid interest, shall continue to accrue interest from the date of such Default at the Default Rate applicable to such Obligations.
(f) Payment Date. If any interest or any other payment to Lender under this Agreement becomes due and payable on a day other than a Business Day, such Payment Date shall be extended to the next succeeding Business Day (unless such next succeeding Business Day is in the next calendar month, in which case such payment date shall be the immediately preceding Business Day) and interest thereon shall be payable at the then applicable rate during such extension.
(g) Payment. Borrower shall make each payment under this Agreement without set-off, counterclaim or deduction and free and clear of all Taxes to such account or address as Lender shall specify from time to time in writing. If Borrower shall be required by law to deduct any Taxes from any payment to Lender under any Loan Document, then the amount payable to Lender shall be increased so that, after making all required deductions, Lender receives an amount equal to that which it could have received had no such deductions been made.
(h) Application of Payments. Borrower irrevocably agrees that Lender shall have the continuing and exclusive right to apply any and all payments against the then due and payable Obligations in such order as Lender may deem advisable. So long as any Default has occurred and is then continuing, Lender is authorized to, and at its option may (without prior notice or precondition and at any time or times), but shall not be obligated to, make or cause to be made advances on behalf of Borrower for: (1) payment of all fees, expenses, indemnities, charges, costs, principal, interest, or other Obligations owing by Borrower under this Agreement or any of the other Loan Documents, (2) the payment, performance or satisfaction of any of Borrower’s Obligations with respect to preservation of the Collateral, or (3) any premium in whole or in part required in respect of any of the policies of insurance required by this Agreement, even if the making of any such advance causes the outstanding balance of the Loan to exceed the Maximum Amount and Borrower agrees to repay immediately, in cash, any amount by which the Loan exceeds the Maximum Amount.
SECURITY. As security for the payment as and when due of the indebtedness of Borrower to Lender hereunder and under the Promissory Note (and any renewals, extensions and modifications thereof) and under any other agreement or instrument, both now in existence and hereafter created (as the same may be renewed, extended or modified), and the performance as and when due of all other Obligations of Borrower to Lender, both now in existence and hereafter created (as the same may be renewed, extended or modified), each SPV hereby grants to Lender a security interest in the vehicles set forth in the Schedule B opposite such SPV’s name (hereinafter collectively referred to as the “Collateral Schedule”) now or hereafter executed in connection with the Promissory Note, together with all related software (embedded therein or otherwise) and general intangibles (excluding any related taxi cab medallions), all additions, attachments, accessories and accessions thereto whether or not furnished by the supplier of the equipment, and any all replacements, substitutions and exchanges therefor and thereof and accessions thereto (the “Equipment”) and any and all Proceeds thereof (the “Collateral”). Each SPV agrees that, with respect to their Collateral, Lender shall have all of the rights and remedies of a secured party under the UCC. Each SPV hereby authorizes Lender to file UCC financing statements (“UCC Statements”) describing the Collateral Schedule. Without Lender’s prior written consent (which such consent shall not be unreasonably withheld or delayed), Borrower agrees not to file any corrective or termination statements or partial releases with respect to any UCC Statements filed by Lender pursuant to this Agreement.
CONDITIONS PRECEDENT TO LENDER’S OBLIGATION. The obligation of Lender to make the Loan as set forth in Section 1 hereof is expressly conditioned upon compliance by Borrower, to the reasonable satisfaction of Lender and its counsel, of the following conditions precedent:
Advance. Concurrently with the execution hereof, or on or prior to the first date on which Lender is to advance the Loan hereunder, Borrower shall cause to be provided to Lender, Resolutions of the Board of Directors/ managing body or validly authorized Executive Committee of Borrower, certified by the Secretary or an Assistant Secretary of Borrower, duly authorizing the borrowing of funds hereunder and the execution, delivery and performance of this Agreement, the Promissory Note and all related instruments and documents.
Each Advance. On each date on which Lender is to advance funds hereunder,
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If and to the extent requested by Lender, Borrower shall cause to be provided to Lender the following:
A certificate executed by the Secretary or an Assistant Secretary of Borrower, certifying that the representations and warranties of Borrower contained herein remain true and correct as of such date, and that no Default or event which, with the giving of notice or the lapse of time, or both, would become a Default hereunder, has then occurred.
Evidence satisfactory to Lender as to due compliance with the insurance provisions of Section 6(g) hereof.
Photocopies of the invoice(s) or other evidence reasonably satisfactory to Lender, related to the acquisition cost of the Equipment to which such advance of the Loan relates; and, if requested by Lender, an appraisal of such Equipment in form and substance, and by an appraiser, acceptable to Lender.
A Collateral Schedule describing the Equipment to which such advance of the Loan relates, duly executed on behalf of Borrower.
A Pay Proceeds Authorization in the amount of the Loan to be advanced on such date, duly executed on behalf of Borrower.
A Promissory Note in the amount of the Loan to be advanced on such date, duly executed on behalf of Borrower, pursuant to Section 1 hereof.
If applicable, within five (5) Business Days of the later of (i) the Closing Date and (ii) the date set forth in Section 5(g)(1)-(3) relating to an item of Equipment, such documents and instruments as reasonably may be required by Lender in writing to note Lender as the registered lienholder on the certificate of title (the “Title Lien Notation Documents”) with respect to the Equipment to which such advance of the Loan relates.
Such filings shall have been made and other actions taken as reasonably may be required by Lender in writing to perfect a valid, first priority security interest granted by Borrower to Lender with respect to the Collateral.
No Default or event which, with the giving of notice or lapse of time, or both, would become a Default hereunder shall have occurred.
No event shall have occurred which could have a Material Adverse Effect.
REPRESENTATIONS AND WARRANTIES. Borrower hereby represents and warrants that:
Business Existence. Borrower has the form of business organization, and is and will remain duly organized and validly existing in good standing under the laws of the jurisdiction, specified below the signature of Borrower; and is duly qualified and authorized to transact business and is in good standing wherever necessary to perform its Obligations under the Loan Documents, including each jurisdiction in which the Collateral is to be located.
Requisite Power and Authority. Borrower has the requisite power and authority to own or hold under lease its properties and to enter into and perform its Obligations hereunder; and the borrowing hereunder by Borrower from Lender, the execution, delivery and performance of the Loan Documents, (1) have been duly authorized by all necessary action consistent with Borrower’s form of organization; (2) do not require any approval or consent of any stockholder, member, partner, trustee or holders of any indebtedness or obligations of Borrower except such as have been duly obtained; and (3) do not and will not contravene any law, governmental rule, regulation or order now binding on Borrower, or the organizational documents of Borrower, or contravene the provisions of, or constitute a default under, or result in the creation of any Lien or encumbrance upon the property of Borrower under any agreement to which Borrower is a party or by which it or its property is bound.
No Consents or Approvals. Neither the execution and delivery by Borrower of the Loan Documents, nor the consummation of any of the transactions by Borrower contemplated hereby or thereby, requires the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any Federal, state or
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- foreign Governmental Authority or agency, except as provided herein.
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Enforceability. This Agreement constitutes, and all other Loan Documents when entered into will constitute, the legal, valid and binding obligation of Borrower enforceable against Borrower in accordance with the terms hereof and thereof, except as limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or affecting the enforcement of creditors’ rights generally, and by applicable laws (including any applicable common law and equity) and judicial decisions which may affect the remedies provided herein and therein.
Litigation. There are no pending or threatened actions or proceedings to which Borrower is a party, and there are no other pending or threatened actions or proceedings of which Borrower has knowledge, before any court, arbitrator or administrative agency, which, either individually or in the aggregate, would have a Material Adverse Effect. Further, Borrower is not in default under any material obligation for the payment of borrowed money, for the deferred purchase price of property or for the payment of any rent which, either individually or in the aggregate, would have a Material Adverse Effect.
Not Real Property Fixtures. Under the laws of the state(s) in which the Equipment is to be located, the Equipment consists solely of personal property and not fixtures.
Validity and Priority of Security Interest. Upon payment in full of the acquisition cost of the Equipment, Borrower will have good and marketable title to the Equipment, free and clear of all Liens and encumbrances (excepting only the Lien of Lender). Upon the last to occur of: (1) delivery of an item of Equipment, (2) payment to the vendor of the acquisition cost of such item of the Equipment, (3) advance by Lender to Borrower of the Loan relating to such item of the Equipment, and (4) filing in the appropriate public office of a UCC financing statement naming Borrower as debtor, and Lender as secured party, and describing such item of the Equipment Lender will have a valid, perfected, first priority purchase money security interest in such item of the Equipment.
Financial Statements. The financial statements of Borrower (copies of which have been furnished to Lender) have been prepared in accordance with GAAP, and fairly present Borrower’s financial condition and the results of Borrower’s operations as of the date of and for the period covered by such statements, and since the date of such statements there has been no Material Adverse Effect on such conditions or operations.
Tax Returns and Payments. Borrower has filed or has caused to have been filed all federal, state and local tax returns which, to the knowledge of Borrower, are required to be filed, and has paid or caused to have been paid all taxes as shown on such returns or on any assessment received by it, to the extent that such taxes have become due, unless and to the extent only that such taxes, assessments and governmental charges are currently contested in good faith and by appropriate proceedings by Borrower and adequate reserves therefor have been established as required under GAAP. To the extent Borrower believes it advisable to do so; Borrower has set up reserves which are believed by Borrower to be adequate for the payment of additional taxes for years which have not been audited by the respective tax authorities.
No Violation of Law. Borrower is not in violation of any law, ordinance, governmental rule or regulation to which it is subject and the violation of which would have a Material Adverse Effect, and Borrower has obtained any and all licenses, permits, franchises or other governmental authorizations necessary for the ownership of its properties and the conduct of its business.
Use of Proceeds. None of the proceeds of the Loan will be used, directly or indirectly, by Borrower for the purpose of purchasing or carrying, or for the purpose of reducing or retiring any indebtedness which was originally incurred to purchase or carry, any “margin security” or “margin stock” within the meaning of Regulation U (12 CFR Part 221), of the Board of Governors of the Federal Reserve System (herein called “margin security” and “margin stock”) or for any other purpose which might make the transactions contemplated herein a “purpose credit” within the meaning of Regulation U, or cause this Agreement to violate any other regulation of the Board of Governors of the Federal Reserve System or the Securities Exchange Act of 1934 or the Small Business Investment Act of 1958, as amended, or any rules or regulations promulgated under any of such statutes.
Business Information. The legal name, jurisdiction of organization, Federal Employer Identification Number and Organizational Number of Borrower, specified on the signature page hereof, are true and correct. Within the previous six (6) years, Borrower has not changed its name, done business under any other name, or merged or been the surviving entity of any merger, except as disclosed to Lender in writing.
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Full Disclosure. No information contained in any Loan Document, the financial statements or any written statement furnished by or on behalf of Borrower under any Loan Document, or to induce Lender to execute the Loan Documents, contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements contained herein or therein not misleading in light of the circumstances under which they were made.
COVENANTS OF BORROWER. Borrower covenants and agrees as follows:
Application of Proceeds. The proceeds of the Loan will be used exclusively for business or commercial purposes to finance the acquisition of the Equipment and/or to reimburse Borrower with respect to the acquisition cost of the Equipment.
Use of Collateral. Borrower shall use the Equipment solely in the Continental United States and in the conduct of its business and in a careful and proper manner; shall not permanently discontinue use of the Equipment; and shall provide written notice to Lender not more than thirty (30) days after any change of the location of any item of the Equipment (or the location of the principal garage of any item of the Equipment, to the extent that such item is mobile equipment) as specified on the applicable Collateral Schedule.
For Motor Vehicles. Borrower shall cause that portion of the Equipment comprised of certificate of title motor vehicles to be titled in the name of the applicable Borrower and as provided herein shall deliver to Lender the original certificate of title with respect to such Equipment. Borrower shall cause such Equipment to be registered in the name of Borrower, and shall take all actions as reasonably may be required to maintain such registration of such Equipment in the name of Borrower. Lender shall hold such original certificates of title and not file any Title Lien Notation Documents until ninety (90) days from the date hereof or such longer period as agreed to by the Lender in writing. In the event Borrower and Lender convert the Loan to a secured revolving credit facility, Lender shall promptly deliver the original certificates of title to Borrower in consideration for corresponding SUBI certificates in the applicable titling trust.
Except as otherwise provided herein, Borrower shall not dispose of or further encumber its interest in the Collateral without the prior written consent of Lender. Borrower shall maintain the Equipment free from all claims, Liens and legal processes of creditors of Borrower other than Liens (1) for fees, taxes, or other governmental charges of any kind which are not yet delinquent or are being contested in good faith by appropriate proceedings which suspend the collection thereof (provided, however, that such proceedings do not involve any substantial danger of the sale, forfeiture or loss of the Equipment or any interest therein); (2) Liens of mechanics, materialmen, laborers, employees or suppliers and similar Liens arising by operation of law incurred by Borrower in the ordinary course of business for sums that are not yet delinquent or are being contested in good faith by negotiations or by appropriate proceedings which suspend the collection thereof (provided, however, that such contest does not involve any substantial danger of the sale, forfeiture or loss of the Equipment or any interest therein); and (3) Liens arising out of any judgments or awards against Borrower which have been adequately bonded to protect Lender’s interests or with respect to which a stay of execution has been obtained pending an appeal or a proceeding for review (“Permitted Liens”). Borrower shall notify Lender immediately upon receipt of notice of any Lien, attachment or judicial proceeding affecting the Equipment in whole or in part.
Fees and Taxes; Maintenance. Borrower, at its own expense, will pay or cause to be paid all taxes and fees relating to the ownership and use of the Equipment and will keep and maintain, or cause to be kept and maintained, the Equipment in accordance with the manufacturer’s recommended specifications, and in as good operating condition as on the date of execution hereof (or on the date on which acquired, if such date is subsequent to the date of execution hereof), ordinary wear and tear resulting from proper use thereof alone excepted, and will make all modifications and improvements to the Equipment as are required by Applicable Law; and will provide all maintenance and service and make all repairs necessary for such purpose.
Loss or Damage. Borrower shall advise Lender in writing within ten (10) days of the end of each calendar quarter of the occurrence of any material damage, loss, theft, destruction or governmental confiscation or appropriation of any item of the Equipment (an “Event of Loss”) and of the circumstances and extent of such Event of Loss. Within five (5) days after receipt of notice from Borrower, Borrower shall prepay the Obligations to the extent attributable to the unpaid portion of the Obligations funded with respect to the item of Equipment having suffered the total loss (as reasonably determined by Lender). If any item of Equipment is damaged and such damage can be repaired, Borrower shall promptly affect such repairs. All accessories, parts and replacements for or which are added to or become attached to the
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Equipment shall immediately be deemed incorporated in the Equipment and subject to the security interest granted by Borrower herein. Upon reasonable advance notice, Lender shall have the right to inspect the Equipment and all maintenance records thereto, if any, at any reasonable time.
Personal Property. The parties intend that the Equipment shall remain personal property, notwithstanding the manner in which it may be affixed to any real property, and Borrower shall obtain and deliver to Lender (to be recorded at Borrower’s expense) from each Person having an interest in or Lien on the property (the “Premises”) where the Equipment is to be located, waivers of any Lien, encumbrance or interest which such Person might have or hereafter obtain or claim with respect to the Equipment.
Insurance. At its own expense, Borrower shall keep the Equipment or cause it to be kept insured in compliance with the requirements of the New York City Taxi & Limousine Commission for yellow taxi medallion operations. Borrower shall pay or cause to be paid the premiums therefor and, if requested by Lender, deliver to Lender evidence satisfactory to Lender of such insurance coverage within a reasonable time.
Further Assurances. Borrower shall promptly and duly execute and deliver to Lender such further documents, instruments and assurances and take such further action as Lender may from time to time reasonably request in order to carry out the intent and purpose of this Agreement and to establish and protect the rights and remedies created or intended to be created in favor of Lender hereunder; including, without limitation, the execution and delivery of any document reasonably required, and payment of all necessary costs to record such documents (including payment of any documentary or stamp tax), to perfect and maintain perfected the security interest granted under this Agreement.
Notices to Lender. Borrower shall provide written notice to Lender: (1) not less than thirty (30) days prior to any contemplated change in the name, the jurisdiction of organization, or address of the chief executive office, of Borrower or of Borrower’s organizational structure such that a filed financing statement would become seriously misleading (within the meaning of the UCC); and (2) promptly upon the occurrence of any event which constitutes a Default (as hereinafter defined) hereunder or which, with the giving of notice, lapse of time or both, would constitute a Default hereunder.
(j) Borrower shall furnish Lender (1) within one hundred twenty (120) days after the end of each fiscal year of Borrower, its balance sheet as at the end of such year, and the related statement of income and statement of changes in financial position for such fiscal year, prepared in accordance with GAAP, all in reasonable detail and certified by independent certified public accountants of recognized standing selected by Borrower and reasonably aceptable to Lender; (2) within sixty (60) days after the end of each quarter (other than the final quarter) of Borrower’s fiscal year, its balance sheet as at the end of such quarter and the related statement of income and statement of changes in financial position for such quarter, prepared in accordance with GAAP; and (3) within thirty (30) days after the date on which they are filed, all reports, forms and other filings required to be made by Borrower to the Securities and Exchange Commission (“SEC”) if any, as and when filed (by furnishing these SEC forms, or making them publicly available in electronic form, in each case, within the time periods set forth in clauses (1) and (2), Borrower shall be deemed to have satisfied the requirements of clauses (1), (2) and (3)). Upon the written request of Lender, Borrower will deliver to Lender any additional information reasonably requested by Lender relating to the Collateral and/or the general financial condition of Borrower.
(k) Notice of Bankruptcy. Borrower shall provide written notice to Lender of the commencement of proceedings under the Federal bankruptcy laws or other insolvency laws (as now or hereafter in effect) involving Borrower as a debtor.
(l) Bank Secrecy Act, etc. (1) Borrower has been advised by Lender that the USA Patriot Act establishes minimum standards of account information to be collected and maintained by Lender, and that to help the government fight the funding of terrorism and money laundering activities, Federal law requires all financial institutions to obtain, verify and record information that identifies each person who opens an account; and specifically, this means that when Borrower executes this Agreement, Lender may ask for Borrower’s name and address, the date of birth of the officers executing this Agreement, and other information that will allow Lender to identify Borrower; and that Lender may also ask to see the driver’s license or other identifying documents of the officers of Borrower executing this Agreement. (2) Borrower is and will remain in full compliance with all Applicable Laws including, without limitation, (i) ensuring that no Person who owns a controlling interest in or otherwise controls Borrower is or shall be (A) listed on the Specially Designated Nationals and Blocked Person List maintained by the Office of Foreign Assets Control (“OFAC”), Department of the Treasury, and/or any other similar lists maintained by OFAC pursuant to any authorizing statute, Executive Order or regulation, or (B) a Person designated under Sections 1(b), (c) or (d) of Executive Order No. 13224 (September 23, 2001), any related enabling legislation or any other
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similar Executive Orders, and (ii) compliance with all applicable Bank Secrecy Act (“BSA”) laws, regulations and government guidance on BSA compliance and on the prevention and detection of money laundering violations.
(m) Indemnification. Borrower shall indemnify and defend Lender, its successors and assigns, and their respective directors, officers and employees, from and against any and all claims (including, without limitation, any applicable taxes and/or penalties attributable to such claims), actions and suits of any kind, nature or description whatsoever arising, directly or indirectly, in connection with any of the Collateral (other than such as may result from the gross negligence or willful misconduct of Lender, its successors and assigns, and their respective directors, officers and employees). The obligations of Borrower under this Section 6(m) shall survive the expiration of the term of this Agreement.
(n) Additional Covenants. Additional financial covenants are set forth in Schedule C.
(o) Joint and Several. Borrower’s obligations hereunder are joint and several.
- DEFAULT. A default shall be deemed to have occurred hereunder (“Default”) upon the occurrence of any of the following: (a) non-payment of an installment of principal and/or interest due under the Promissory Note on the applicable Payment Date within five (5) days after it is due; (b) non-payment of any other Obligation within five (5) days after it is due; (c) failure to maintain, use or operate the Equipment in compliance with Applicable Law which results in a Material Adverse Effect; (d) failure to obtain, maintain and comply with all of the insurance coverages required under this Agreement which results in a Material Adverse Effect; (e) any transfer or encumbrance, or the existence of any Lien, that is prohibited by this Agreement; (f) a payment or other default by Borrower or its Affiliates under any loan, lease, guaranty or other financial obligation to Lender or its Affiliates which default entitles the other party to such obligation to exercise remedies; (g) a payment or other default by Borrower or its Affiliates under any material loan, lease, guaranty or other material financial obligation to any third party which default has been declared after the lapse of any applicable grace and cure periods; (h) a material inaccuracy in any representation or breach of warranty by Borrower (including any materially false or misleading representation or warranty) in any financial statement or Loan Document, including any omission of any substantial contingent or unliquidated liability or claim against Borrower; (i) the failure by Borrower generally to pay its debts as they become due or its admission in writing of its inability to pay the same, or the commencement of any bankruptcy, insolvency, receivership or similar proceeding by or against Borrower or any of its properties or business (unless, if involuntary, the proceeding is dismissed within sixty (60) days of the filing thereof) or the rejection of this Agreement or any other Loan Document in any such proceeding; (j) Borrower shall (1) consummate into any transaction of merger or consolidation where Borrower is not the surviving entity (such actions being referred to as an "Event"), unless the surviving entity is organized and existing under the Laws of the United States or any state, and prior to such Event: (A) such Person executes and delivers to Lender (x) an agreement satisfactory to Lender, in its reasonable discretion, containing such Person's effective assumption, and its agreement to pay, perform, comply with and otherwise be liable for, in a due and punctual manner, all of Borrower's Obligations having previously arisen, or then or thereafter arising, under any and all of the Loan Documents, and (y) any and all other documents, agreements, instruments, certificates, opinions and filings requested by Lender; and (B) Lender is satisfied as to the creditworthiness of such Person, and as to such Person's conformance to the other standard criteria then used by Lender when approving transactions similar to the transactions contemplated in this Agreement; (2) cease to do business as a going concern, liquidate, or dissolve; or (3) sell, transfer, or otherwise dispose of all or substantially all of its assets or property; (k) if Borrower is privately held and effective control of Borrower's voting capital stock/membership interests/partnership interests, issued and outstanding from time to time, is not retained by the present holders (unless Borrower shall have provided thirty (30) days' prior written notice to Lender of the proposed disposition and Lender shall have consented thereto in writing); (l) if Borrower is a publicly held corporation and there is a material change in the ownership of Borrower’s capital stock which results in a Material Adverse Effect; (m) there occurs a default or anticipatory repudiation under any guaranty executed in connection with this Agreement; (n) failure to satisfy the requirements of any financial covenants set forth in this Agreement (and such breach is not cured in accordance with Schedule C); or (o) breach by Borrower of Section 6(l) of this Agreement; or (p) breach by Borrower of any other covenant, condition or agreement (other than those in items (a)-(o)) under this Agreement or any of the other Loan Documents that continues for thirty (30) days after receipt by Borrower of Lender’s written notice to Borrower (but such notice and cure period will not be applicable unless such breach is curable by practical means within such notice period).
The occurrence of a Default with respect to any Promissory Note shall, at the sole discretion of Lender (as set forth in a written declaration to Borrower), constitute a Default with respect to any or all of the other Promissory Notes. Notwithstanding anything to the contrary set forth herein, Lender or its assignee(s) (as applicable) may exercise all rights and remedies hereunder or under a Promissory Note independently with respect to each Promissory Note and/or with
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respect to the Collateral collateralizing such Promissory Note.
REMEDIES. Upon the occurrence of a Default hereunder, Lender may, at its option, declare this Agreement to be in default with respect to any or all of the Promissory Notes, and at any time thereafter may do any one or more of the following, all of which are hereby authorized by Borrower:
Rights and Remedies. If any Default shall occur and be continuing, Lender may declare the unpaid principal amount of the Promissory Note together with accrued and unpaid interest thereon, and all other Obligations then outstanding to be immediately due and payable, whereupon the same shall become and be forthwith due and payable by Borrower to Lender, without presentment, demand, protest or notice of any kind, all of which are expressly waived by Borrower; provided, that, in the case of any Default referred to in Section 7(i), the unpaid principal amount of the Promissory Note together with accrued and unpaid interest thereon, and all other Obligations then outstanding shall be automatically and immediately due and payable by Borrower to Lender without notice, presentment, demand, protest or other action of any kind, all of which are expressly waived by Borrower. Upon the occurrence and during the continuation of any Default, then in each and every case, Lender shall be entitled to exercise any and all rights and remedies of a secured party under the UCC in effect in any applicable jurisdiction at the date of this Agreement and in addition to those rights, at its sole discretion, may require Borrower (at Borrower’s sole expense) to forward promptly any or all of the Collateral to Lender at such location as shall reasonably be required by Lender, or enter upon the premises where any such Collateral is located (without obligation for rent) and take immediate possession of and remove the Collateral by summary proceedings or other method permitted by applicable law, all without liability from Lender to Borrower for or by reason of such entry or taking of possession, whether for the restoration of damage to property caused by such taking or otherwise.
Disposition of Collateral. Subject to any right of Borrower to redeem the Collateral, sell, lease or otherwise dispose of any or all of the Collateral in a commercially reasonable manner at public or private sale with notice to Borrower (the parties agreeing that ten (10) days’ prior written notice shall constitute adequate notice of such sale) at such price as it may deem best, for cash, credit, or otherwise, with the right of Lender to purchase and apply the proceeds:
First, to the payment of all expenses and charges, including the expenses of any sale, lease or other disposition, the expenses of any taking, actual, out-of-pocket attorneys’ fees, court costs and any other expenses incurred or advances made by Lender in the protection of its rights or the pursuance of its remedies, and to provide adequate indemnity to Lender against all taxes and Liens which by law have, or may have, priority over the rights of Lender to the monies so received by Lender;
Second, to the payment of the Obligations; and
Third, to the payment of any surplus thereafter remaining to Borrower;
and in the event that the proceeds are insufficient to pay the amounts specified in clauses “First” and “Second” above, Lender may collect such deficiency from Borrower.
Other Rights and Remedies. Lender may exercise any other right or remedy available to it under the Loan Documents or Applicable Law, or proceed by appropriate court action to enforce the terms hereof or to recover damages for the breach hereof or to rescind this Agreement in whole or in part.
Costs and Expenses; No Remedy Exclusive. In addition, Borrower shall be liable for any and all unpaid additional sums due hereunder or under the Promissory Note, before, after or during the exercise of any of the foregoing remedies; for all reasonable legal fees and other reasonable costs and expenses incurred by reason of any Default or of the exercise of Lender’s remedies with respect thereto. No remedy referred to in this Section is intended to be exclusive, but each shall be cumulative, and shall be in addition to any other remedy referred to above or otherwise available at law or in equity, and may be exercised concurrently or separately from time to time. Borrower hereby waives any and all existing or future claims to any offset against the sums due hereunder or under the Promissory Note and agrees to make the payments regardless of any offset or claim which may be asserted by Borrower or on its behalf in connection with this Agreement.
No Waiver. The failure of Lender to exercise, or delay in the exercise of, the rights granted hereunder
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upon any Default by Borrower or its Affiliates shall not constitute a waiver of any such right upon the continuation or recurrence of any such Default. Lender may take or release other security; may release any party primarily or secondarily liable for the Obligations; may grant extensions, renewals or indulgences with respect to the Obligations and may apply any other security therefor held by it to the satisfaction of the Obligations without prejudice to any of its rights hereunder.
NOTICES. All notices (excluding billings and communications in the ordinary course of business) hereunder shall be in writing, personally delivered, sent by overnight courier service, sent by facsimile telecopier, or sent by certified mail, return receipt requested, addressed to the other party at its respective address stated below the signature of such parties or at such other addresses as such parties shall from time to time designate in writing to the other parties; and shall be effective from the date of receipt.
LENDER’S RIGHT TO PERFORM FOR BORROWER. (a) Performance and Reimbursement. If Borrower fails to perform or comply with any of its agreements contained herein, Lender shall have the right, but shall not be obligated, to effect such performance or compliance, and the amount of any actual, out-of-pocket expenses and other reasonable expenses of Lender thereby incurred, together with interest thereon at the Default Rate, shall be due and payable by Borrower upon written demand.
(b) Power of Attorney. So long as any Default has occurred and is then continuing, Borrower hereby appoints Lender as Borrower’s attorney-in-fact (which power shall be deemed coupled with an interest) to execute, endorse and deliver any deed, conveyance, assignment or other instrument in writing as may be required to vest in Lender any right, title or power which by the terms hereof are expressed to be conveyed to or conferred upon Lender, including, without limitation, real property waivers, and documents and checks or drafts relating to or received in payment for any loss or damage under the policies of insurance required hereby, but only to the extent that the same relates to the Collateral.
This Agreement shall inure to the benefit of Lender, its successors and assigns, and shall be binding upon the successors of Borrower. Without Lender’s prior written consent, which shall not be unreasonable withheld, the rights and Obligations of Borrower under this Agreement may not be assigned or delegated. Lender reserves the right to sell, assign, transfer, negotiate or grant participations in all or any part of, or any interest in, Lender’s rights and obligations hereunder, in the Promissory Notes, in the Collateral and/or the Obligations held by it to others at any time and from time to time subject to the Borrowers consent (which consent shall not be, except in the case of a sale, assignment, transfer or a participation to a Disqualified Institution or Competitor, unreasonably withheld, conditioned or delayed by the Borrower); and Lender may disclose to any such purchaser, assignee, transferee or participant (the “Participant”), or potential Participant, this Agreement and all information, reports, financial statements and documents executed or obtained in connection with this Agreement which Lender now or hereafter may have relating to the Loan, Borrower, or the business of Borrower. Borrower hereby grants to any Participant all Liens, rights and remedies of Lender under the provisions of this Agreement or any other documents relating hereto or under applicable laws. Borrower agrees that any Participant may enforce such Liens and exercise such rights and remedies in the same manner as if such Participant were Lender and a direct creditor of Borrower. Upon the request of any Participant, Borrower agrees to promptly execute and deliver to Participant an acknowledgment of the assignment, transfer or sale of participation interest, in form and substance satisfactory to Participant.
CHOICE OF LAW; JURISDICTION; WAIVER OF JURY TRIAL. (a) GOVERNING LAW. THIS AGREEMENT AND ALL OTHER RELATED INSTRUMENTS AND DOCUMENTS AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL, IN ALL RESPECTS, BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO THE CONFLICT OF LAWS PRINCIPLES OF SUCH STATE), INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, REGARDLESS OF THE LOCATION OF THE COLLATERAL.
Jurisdiction. The parties agree that any action or proceeding arising out of or relating to this Agreement may be commenced in any state or Federal court of competent jurisdiction in the State of New York, and each party submits to the jurisdiction of such court and agrees that a summons and complaint commencing an action or proceeding in any such court shall be properly served and shall confer personal jurisdiction if served personally or by certified mail to it at its address designated pursuant hereto, or as otherwise provided under the laws of the State of New York.
WAIVER OF JURY TRIAL. BORROWER HEREBY WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO WHICH BORROWER AND LENDER MAY BE PARTIES, ARISING OUT OF OR IN ANY WAY
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PERTAINING TO THIS AGREEMENT OR THE PROMISSORY NOTE. BORROWER AUTHORIZES LENDER TO FILE THIS PROVISION WITH THE CLERK OR JUDGE OF ANY COURT HEARING SUCH CLAIM. THIS WAIVER IS KNOWINGLY, WILLINGLY AND VOLUNTARILY MADE BY BORROWER AND BORROWER HEREBY ACKNOWLEDGES THAT NO REPRESENTATIONS OF FACT OR OPINION HAVE BEEN MADE BY ANY INDIVIDUAL TO INDUCE THIS WAIVER OF TRIAL BY JURY OR IN ANY WAY TO MODIFY OR NULLIFY ITS EFFECT. BORROWER FURTHER ACKNOWLEDGES THAT IT HAS BEEN REPRESENTED IN THE SIGNING OF THIS AGREEMENT AND THE PROMISSORY NOTE AND IN THE MAKING OF THIS WAIVER BY LEGAL COUNSEL, SELECTED OF ITS OWN FREE WILL, AND THAT IT HAS HAD THE OPPORTUNITY TO DISCUSS THIS WAIVER WITH COUNSEL.
MISCELLANEOUS. (a) Entire Agreement. The Loan Documents and the Commitment Letter constitute the entire agreement between the parties with respect to the subject matter hereof and thereof and shall not be amended or altered in any manner except by a document in writing executed by both parties.
Survival. All representations, warranties, and covenants of Borrower contained herein or made pursuant hereto shall survive closing and continue throughout the term hereof and until the Obligations are satisfied in full.
Severability. Any provision of the Loan Documents which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof or thereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. To the extent permitted by Applicable Law, Borrower hereby waives any provision of law which renders any provision hereof or thereof prohibited or unenforceable in any respect.
Captions. The captions in this Agreement are for convenience of reference only and shall not define or limit any of the terms or provisions hereof.
Expenses. Borrower agrees to pay or reimburse Lender for all reasonable costs and expenses (including the reasonable fees and expenses of all counsel, advisors, consultants and auditors retained in connection therewith), incurred in connection with: (1) the preparation, negotiation, execution, delivery, performance and enforcement of the Loan Documents and the preservation of any rights thereunder (including, without limitation, filing or recording fees and taxes); (2) collection, including deficiency collections; (3) any amendment, waiver or other modification waiver of, or consent with respect to, any Loan Document or advice in connection with the administration of the Loan or the rights thereunder; (4) any litigation, dispute, suit, proceeding or action (whether instituted by or between any combination of Lender, Borrower or any other Person), and an appeal or review thereof, in any way relating to the Collateral, any Loan Document, or any action taken or any other agreements to be executed or delivered in connection therewith, whether as a party, witness or otherwise; and (5) any effort (i) to monitor the Loan, (ii) to evaluate, observe or assess Borrower or the affairs of such Person, and (iii) to verify, protect, evaluate, assess, appraise, collect, sell, liquidate or otherwise dispose of the Collateral.
Counterparts. This Agreement and all of the other Loan Documents may be executed in counterparts. Photocopies, electronic or facsimile transmissions of signatures shall be deemed original signatures and shall be fully binding on the parties to the same extent as original signatures.
Confidentiality.
(i) Confidentiality Obligation. Neither the Lender, on the one hand, nor the MCC entities, on the other hand, shall publish or otherwise disclose any confidential and proprietary information concerning the other parties, and their respective Affiliates and their businesses (collectively, "Confidential Information"), to any Person.
(ii) Permitted Disclosures. Notwithstanding anything to the contrary above, each party may disclose the Confidential Information:
- to its Affiliates, liquidity providers, liquidity agents, and to its own (and their respective Affiliates', liquidity providers', liquidity agents') partners, agents, trustees, administrators, managers, service providers,
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- directors, officers, employees, accountants, counsel and other professional advisors, equity owners and investors (it being understood that the Person to whom such disclosure is made will be informed of the confidential nature of such information and instructed to keep such information confidential, and have agreed to keep the Confidential Information confidential, or are bound by obligations of confidentiality to receiving party, which would restrict disclosure of Confidential Information in contravention of the provisions of the Section (collectively, such Persons, the "Affiliated Parties," and any such Person, an "Affiliated Party");
- to the extent required by Applicable Law, court order, summons, subpoena or other legal process, or in connection with any litigation;
- to the extent required or requested by any Governmental Authority or regulatory authority purporting to have jurisdiction over such Person (including any self-regulatory authority);
- to any other Person involved as a party in the Loan;
- to the extent that such information:
- was or becomes available to, and readily obtainable by, such party on a non-confidential basis from a source other than applicable party receiving such information or its Affiliated Parties that is not known to be subject to a confidentiality obligation to the party disclosing such information or an affiliate thereof;
- has been independently acquired or developed by any such party without utilizing any Confidential Information or violating any of their respective obligations under this Agreement; or
- becomes publicly available and readily obtainable other than as a result of a breach of this Section;
- in connection with the exercise of any right or remedy under any Transaction Document, including the sale, lease, or other disposition of Collateral after default;
- to any participant or assignee or any Lender or any prospective such participant or assignee (provided that such participant or assignee or prospective participant or assignee agrees in writing to be bound by this Section prior to disclosure); or
- otherwise with the prior consent of the other Parties;
(iii) Certain Duties. The Lender, on the one hand, and the MCC entities, on the other hand, agree to use the same efforts to protect the confidentiality of the Confidential Information as it uses to protect its own confidential information of a similar nature.
(iv) Obligations Regarding MNPI. To the extent that the Lender, or its Affiliated Parties, receives from any MCC entity any Confidential Information that constitutes material non-public information, as defined under Regulation FD promulgated under the Exchange Act ("MNPI"), related to the MCC entities during the term of the Facility:
- The Lenders hereby acknowledges that it understands that (A) the Confidential Information described by this Agreement may contain or constitute MNPI concerning MCC; and (B) trading, directly or indirectly, in MCC's securities while in possession of MNPI or communicating the Confidential Information to any other person who trades in such securities could subject the Lenders, or its Affiliated Parties to liability under the
12
ACP – MIDDLE MARKET LOAN AND SECURITY AGREEMENT – 10/2/25
- U.S. federal and state securities laws related to insider trading and similar matters, including Rule 10b-5 promulgated under the Exchange Act ("Insider Trading Laws") (it being understood that, under applicable Insider Trading Laws a party may not be considered to be in possession of MNPI in connection with a trade where, in accordance with its internal procedures, such information is not available for use in connection with such trade); and
- The Lender hereby agrees that, until the MNPI is publicly announced it, and its respective Affiliated Parties (A) will not, directly or indirectly, trade or effect any transaction in MCC's securities (including entering into hedge transactions involving MCC's securities) on the basis of MNPI unless and until the lender or such Affiliated Party, as the case may be, can do so in compliance with applicable Insider Trading Laws, and (B) will not convey any of the Confidential Information that it has received to any other person outside of the Affiliated Parties in a manner that would violate applicable Insider Trading Laws. The Lender covenants that until the public disclosure of the MNPI, it will maintain the confidentiality of the MNPI in accordance with this Section; provided, however, that, any disclosure of the MNPI may be made by the Lender to its respective Affiliated Parties in accordance with this Section.
REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK
13
ACP – MIDDLE MARKET LOAN AND SECURITY AGREEMENT – 10/2/25
IN WITNESS WHEREOF, the parties hereto have caused this Loan and Security Agreement to be duly executed, under seal, as of the day and year first above written.
AUXILIOR CAPITAL PARTNERS, INC. The Entities Listed on Schedule B
Lender Each Borrower by its sole member, DePalma Acquisition II LLC
By: /s/ David Verlizzo By: /s/ Michael Hutchby
Name: David Verlizzo Name: Michael Hutchby
Title: Chief Legal Officer Title: CFO
Address: ______________________ Address:____________________
Email: ________________________ Email: _____________________
12
ACP – MIDDLE MARKET LOAN AND SECURITY AGREEMENT – 10/2/25
SCHEDULE A DEFINITIONS
Capitalized terms used in this Agreement and the other Loan Documents shall have (unless otherwise provided elsewhere in this Agreement or in the Loan Documents) the following respective meanings:
“Affiliate” means, with respect to any Person: (i) each other Person that, directly or indirectly, owns or controls, whether beneficially, or as a trustee, guardian or other fiduciary, fifty percent (50%)] or more of the Stock having ordinary voting power for the election of directors of such Person; (ii) each other Person that controls, is controlled by or is under common control with such Person or any Affiliate of such Person; or (iii) each of such Person’s officers, directors, joint ventures and partners. For the purpose of this definition, “control” of a Person shall mean the possession, directly or indirectly, of the power to direct or cause the direction of its management or policies, whether through the ownership of voting Stock, by contract or otherwise.
“Agreement” means this Loan and Security Agreement including all appendices, exhibits or schedules attached or otherwise identified thereto, restatements and modifications and supplements thereto, and any appendices, exhibits or schedules to any of the foregoing, each as in effect at the time such reference becomes operative.
“Applicable Law” means any law, rule, regulation, ordinance, order, code, common law, interpretation, judgment, directive, decree, treaty, injunction, writ, determination, award, permit or similar norm or decision of any Governmental Authority.
“Business Day” means any day that is not a Saturday, a Sunday or a day on which banks are required or permitted to be closed in the State of Maryland.
“Closing Date" means the date on which a Promissory Note is executed and delivered to Lender pursuant to this Agreement.
“Competitor” means, as of any date of determination, any Person that (a) is not an Affiliate of any MCC Entity, (b) is engaged in, or that has an Affiliate engaged in, the business of (i) financing loans primarily secured by Medallions or (ii) leasing, maintaining, financing, insuring or otherwise operating taxicabs, and (c) taken together with its Affiliates, derives all, or a substantial portion, of its revenue from the businesses described in the foregoing clause (b) of this definition. Notwithstanding the foregoing, federally and stated chartered banks and private lending institutions whose primary business is not financing loans primarily secured by Medallions or leasing, maintaining, financing, insuring or otherwise operating taxicabs shall not be deemed Competitors.
“Disqualified Institution” means any Person or Affiliate of such Person that is a competitor of the Borrower, MCC, MCC’s external manager, Marblegate Asset Management, or their Subsidiaries, or that has been identified in writing by the Borrower to the Lender from time to time.
“GAAP” means generally accepted accounting principles in the United States of America as in effect from time to time, consistently applied.
“Governmental Authority” means any nation or government, any state or other political subdivision thereof, and any agency, department or other entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government.
“IRC” means the Internal Revenue Code of 1986, as now or hereafter amended.
“Loan Rate” means the interest rate set out in the Promissory Note.
“Lien” means any mortgage, security deed or deed of trust, pledge, hypothecation, assignment, deposit arrangement, Lien, charge, claim, security interest, security title, easement or encumbrance, or preference, priority or other security agreement or written preferential arrangement of any kind or nature whatsoever (including any lease or title retention agreement, any financing lease having substantially the same economic effect as any of the foregoing, and the filing of, or agreement to give, any financing statement perfecting a security interest under the UCC or comparable law of any jurisdiction).
“Loan” means the loan in the amount of the aggregate principal amount of all advances and evidenced by the Promissory
ACP – MIDDLE MARKET LOAN AND SECURITY AGREEMENT – 10/2/25
Note, and made to Borrower under the terms of this Agreement, and any renewals, extensions, revisions, modifications or replacements therefore or thereof.
“Loan Documents” means this Agreement, the Promissory Note, the Collateral Schedule, [the Guaranty], and the other documents and instruments executed pursuant hereto, the financial statements, and all other documents, instruments, certificates and notices at any time delivered by any Person (other than Lender) in connection with any of the foregoing.
“Material Adverse Effect” means: a material adverse effect on (a) the business, assets, operations, prospects or financial or other condition of Borrower or Guarantor or the industry within which Borrower or Guarantor operates, (b) Borrower’s or Guarantor’s ability to pay or perform the Obligations under the Loan Documents in accordance with the terms thereof, (c) the Collateral or the Lien of Lender on the Collateral or the priority of any such Lien, or (d) Lender’s rights and remedies under this Agreement and the other Loan Documents. Notwithstanding the foregoing, a Material Adverse Effect with respect to the Borrower shall only occur if effects ten percent (10%) or more of the aggregate Equipment owned by all of the Borrowers.
“Obligations” means all loans, advances, debts, expense reimbursement, fees, liabilities, and obligations for the performance of covenants, tasks or duties or for payment of monetary amounts (whether or not such performance is then required or contingent, or amounts are liquidated or determinable) owing by Borrower to Lender, of any kind or nature, present or future, whether or not evidenced by any note, agreement or other instrument, whether arising under any of the Loan Documents or under any other agreement between Borrower and Lender, and all covenants and duties regarding such amounts. This term includes all principal, interest (including interest accruing at the then applicable rate provided in this Agreement after the maturity of the Loan and interest accruing at the then applicable rate provided in this Agreement after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding), fees, charges, expenses, attorneys’ fees and any other sum chargeable to Borrower under any of the Loan Documents, and all principal and interest due in respect of the Loan.
“Payment Date” has the meaning assigned to it in the Promissory Note.
“Person” means any individual, sole proprietorship, entity, limited liability entity, joint venture, trust, unincorporated organization, association, corporation, limited liability company, institution, public benefit corporation or government (whether Federal, state, county, city, municipal or otherwise, including any instrumentality, division, agency, body or department thereof), and shall include such Person’s successors and assigns.
“Proceeds” means “proceeds,” as such term is defined in the UCC and, in any event, shall include: (i) any and all proceeds of any insurance, indemnity, warranty or guaranty payable to Borrower from time to time with respect to any Collateral; (ii) any and all payments (in any form whatsoever) made or due and payable to Borrower from time to time in connection with any requisition, confiscation, condemnation, seizure or forfeiture of any Collateral by any governmental body, authority, bureau or agency (or any Person acting under color of Governmental Authority); (iii) any recoveries by Borrower against third parties with respect to any litigation or dispute concerning any Collateral, including claims arising out of the loss or nonconformity of, interference with the use of, defects in, or infringement of rights in, or damage to, Collateral; and (iv) any and all other amounts, rights to payment or other property acquired upon the sale, lease, license, exchange or other disposition of Collateral and all rights arising out of Collateral.
“Stated Maturity Date” has the meaning assigned to it in the Promissory Note.
“Stock” means all certificated and uncertificated shares, options, warrants, membership interests, general or limited partnership interests, participation or other equivalents (regardless of how designated) of or in a corporation, partnership, limited liability company or equivalent entity whether voting or nonvoting, including common stock, preferred stock, or any other “equity security” (as such term is defined in Rule 3a11-1 of the General Rules and Regulations promulgated by the Securities and Exchange Commission under the Securities Exchange Act of 1934).
“Taxes” means taxes, levies, imposts, deductions, charges or withholdings, and all liabilities with respect thereto, excluding taxes imposed on or measured by the net income of Lender.
“UCC” means the Uniform Commercial Code as the same may, from time to time, be in effect in the State of [ New York; provided, that in the event that, by reason of mandatory provisions of law, any or all of the attachment, perfection or priority of, or remedies with respect to the Lien of Lender on any Collateral is governed by the Uniform Commercial Code
ACP – MIDDLE MARKET LOAN AND SECURITY AGREEMENT – 10/2/25
as in effect in a jurisdiction other than the State of New York, the term “UCC” shall mean the Uniform Commercial Code as in effect in such other jurisdiction for purposes of the provisions of this Agreement relating to such attachment, perfection, priority or remedies and for purposes of definitions related to such provisions; provided further, that to the extent that the UCC is used to define any term herein or in any Loan Document and such term is defined differently in different Articles or Divisions of the UCC, the definition of such term contained in Article or Division 9 shall govern.
ACP – MIDDLE MARKET LOAN AND SECURITY AGREEMENT – 10/2/25
SCHEDULE B
COLLATERAL SCHEDULE
TABLE 1
| LLC | Vehicle (Make, Model, Year) | VIN | |
|---|---|---|---|
| 1 | Latka Taxi 57 LLC | Toyota Sienna - 24 | [***] |
| 2 | Latka Taxi 71 LLC | Toyota Sienna - 24 | [***] |
| 3 | Latka Taxi 72 LLC | Toyota Sienna - 24 | [***] |
| 4 | Latka Taxi 76 LLC | Toyota Sienna - 24 | [***] |
| 5 | Latka Taxi 33 LLC | Toyota Sienna - 24 | [***] |
| 6 | Latka Taxi 34 LLC | Toyota Sienna - 24 | [***] |
| 7 | Latka Taxi 36 LLC | Toyota Sienna - 24 | [***] |
| 8 | Latka Taxi 37 LLC | Toyota Sienna - 24 | [***] |
| 9 | Latka Taxi 39 LLC | Toyota Sienna - 24 | [***] |
| 10 | Latka Taxi 47 LLC | Toyota Sienna - 24 | [***] |
| 11 | Latka Taxi 47 LLC | Toyota Sienna - 24 | [***] |
| 12 | Latka Taxi 48 LLC | Toyota Sienna - 24 | [***] |
| 13 | Latka Taxi 48 LLC | Toyota Sienna - 24 | [***] |
| 14 | Latka Taxi 49 LLC | Toyota Sienna - 24 | [***] |
| 15 | Latka Taxi 49 LLC | Toyota Sienna - 24 | [***] |
| 16 | Latka Taxi 50 LLC | Toyota Sienna - 24 | [***] |
| 17 | Latka Taxi 50 LLC | Toyota Sienna - 24 | [***] |
| 18 | Latka Taxi 51 LLC | Toyota Sienna - 24 | [***] |
| 19 | Latka Taxi 51 LLC | Toyota Sienna - 24 | [***] |
| 20 | Latka Taxi 52 LLC | Toyota Sienna - 24 | [***] |
| 21 | Latka Taxi 52 LLC | Toyota Sienna - 24 | [***] |
| 22 | Latka Taxi 53 LLC | Toyota Sienna - 24 | [***] |
| 23 | Latka Taxi 53 LLC | Toyota Sienna - 24 | [***] |
| 24 | Latka Taxi 54 LLC | Toyota Sienna - 24 | [***] |
| 25 | Latka Taxi 54 LLC | Toyota Sienna - 24 | [***] |
| 26 | Latka Taxi 55 LLC | Toyota Sienna - 24 | [***] |
| 27 | Latka Taxi 56 LLC | Toyota Sienna - 24 | [***] |
| 28 | Latka Taxi 56 LLC | Toyota Sienna - 24 | [***] |
| 29 | Latka Taxi 55 LLC | Toyota Sienna - 24 | [***] |
| 30 | Latka Taxi 57 LLC | Toyota Sienna - 24 | [***] |
| 31 | Latka Taxi 58 LLC | Toyota Sienna - 24 | [***] |
| 32 | Latka Taxi 61 LLC | Toyota Sienna - 24 | [***] |
| 33 | Latka Taxi 61 LLC | Toyota Sienna - 24 | [***] |
| 34 | Latka Taxi 62 LLC | Toyota Sienna - 24 | [***] |
| 35 | Latka Taxi 62 LLC | Toyota Sienna - 24 | [***] |
| 36 | Latka Taxi 63 LLC | Toyota Sienna - 24 | [***] |
| 37 | Latka Taxi 63 LLC | Toyota Sienna - 24 | [***] |
| 38 | Latka Taxi 64 LLC | Toyota Sienna - 24 | [***] |
ACP – MIDDLE MARKET LOAN AND SECURITY AGREEMENT – 10/2/25
| 39 | Latka Taxi 64 LLC | Toyota Sienna - 24 | [***] |
|---|---|---|---|
| 40 | Latka Taxi 65 LLC | Toyota Sienna - 24 | [***] |
| 41 | Latka Taxi 65 LLC | Toyota Sienna - 24 | [***] |
| 42 | Latka Taxi 66 LLC | Toyota Sienna - 24 | [***] |
| 43 | Latka Taxi 66 LLC | Toyota Sienna - 24 | [***] |
| 44 | Latka Taxi 67 LLC | Toyota Sienna - 24 | [***] |
| 45 | Latka Taxi 67 LLC | Toyota Sienna - 24 | [***] |
| 46 | Latka Taxi 68 LLC | Toyota Sienna - 25 | [***] |
| 47 | Latka Taxi 68 LLC | Toyota Sienna - 25 | [***] |
| 48 | Latka Taxi 69 LLC | Toyota Sienna - 25 | [***] |
| 49 | Latka Taxi 69 LLC | Toyota Sienna - 25 | [***] |
| 50 | Latka Taxi 69 LLC | Toyota Sienna - 25 | [***] |
| 51 | Latka Taxi 70 LLC | Toyota Sienna - 25 | [***] |
| 52 | Latka Taxi 70 LLC | Toyota Sienna - 25 | [***] |
| 53 | Latka Taxi 71 LLC | Toyota Sienna - 25 | [***] |
| 54 | Latka Taxi 72 LLC | Toyota Sienna - 25 | [***] |
| 55 | Latka Taxi 73 LLC | Toyota Sienna - 25 | [***] |
| 56 | Latka Taxi 73 LLC | Toyota Sienna - 25 | [***] |
| 57 | Latka Taxi 40 LLC | Toyota Sienna - 25 | [***] |
| 58 | Latka Taxi 40 LLC | Toyota Sienna - 25 | [***] |
| 59 | Latka Taxi 41 LLC | Toyota Sienna - 25 | [***] |
| 60 | Latka Taxi 41 LLC | Toyota Sienna - 25 | [***] |
| 61 | Latka Taxi 42 LLC | Toyota Sienna - 25 | [***] |
| 62 | Latka Taxi 42 LLC | Toyota Sienna - 25 | [***] |
| 63 | Latka Taxi 43 LLC | Toyota Sienna - 25 | [***] |
| 64 | Latka Taxi 43 LLC | Toyota Sienna - 25 | [***] |
| 65 | Latka Taxi 44 LLC | Toyota Sienna - 25 | [***] |
| 66 | Latka Taxi 44 LLC | Toyota Sienna - 25 | [***] |
| 67 | Latka Taxi 45 LLC | Toyota Sienna - 25 | [***] |
| 68 | Latka Taxi 45 LLC | Toyota Sienna - 25 | [***] |
| 69 | Latka Taxi 46 LLC | Toyota Sienna - 25 | [***] |
| 70 | Latka Taxi 46 LLC | Toyota Sienna - 25 | [***] |
| 71 | Latka Taxi 74 LLC | Toyota Sienna - 25 | [***] |
| 72 | Latka Taxi 74 LLC | Toyota Sienna - 25 | [***] |
| 73 | Latka Taxi 75 LLC | Toyota Sienna - 25 | [***] |
| 74 | Latka Taxi 77 LLC | Toyota Sienna - 25 | [***] |
| 75 | Latka Taxi 77 LLC | Toyota Sienna - 25 | [***] |
| 76 | Latka Taxi 84 LLC | Toyota Sienna - 25 | [***] |
| 77 | Latka Taxi 84 LLC | Toyota Sienna - 25 | [***] |
| 78 | Latka Taxi 85 LLC | Toyota Sienna - 25 | [***] |
| 79 | Latka Taxi 85 LLC | Toyota Sienna - 25 | [***] |
| 80 | Latka Taxi 86 LLC | Toyota Sienna - 25 | [***] |
| 81 | Latka Taxi 86 LLC | Toyota Sienna - 25 | [***] |
| 82 | Latka Taxi 87 LLC | Toyota Sienna - 25 | [***] |
ACP – MIDDLE MARKET LOAN AND SECURITY AGREEMENT – 10/2/25
| 83 | Latka Taxi 87 LLC | Toyota Sienna - 25 | [***] |
|---|---|---|---|
| 84 | Latka Taxi 88 LLC | Toyota Sienna - 25 | [***] |
| 85 | Latka Taxi 88 LLC | Toyota Sienna - 25 | [***] |
| 86 | Latka Taxi 89 LLC | Toyota Sienna - 25 | [***] |
| 87 | Latka Taxi 89 LLC | Toyota Sienna - 25 | [***] |
| 88 | Latka Taxi 90 LLC | Toyota Sienna - 25 | [***] |
| 89 | Latka Taxi 90 LLC | Toyota Sienna - 25 | [***] |
| 90 | Latka Taxi 91 LLC | Toyota Sienna - 25 | [***] |
| 91 | Latka Taxi 91 LLC | Toyota Sienna - 25 | [***] |
| 92 | Latka Taxi 92 LLC | Toyota Sienna - 25 | [***] |
| 93 | Latka Taxi 92 LLC | Toyota Sienna - 25 | [***] |
| 94 | Latka Taxi 93 LLC | Toyota Sienna - 25 | [***] |
| 95 | Latka Taxi 93 LLC | Toyota Sienna - 25 | [***] |
| 96 | Latka Taxi 94 LLC | Toyota Sienna - 25 | [***] |
| 97 | Latka Taxi 94 LLC | Toyota Sienna - 25 | [***] |
| 98 | Latka Taxi 95 LLC | Toyota Sienna - 25 | [***] |
| 99 | Latka Taxi 95 LLC | Toyota Sienna - 25 | [***] |
| 100 | Latka Taxi 96 LLC | Toyota Sienna - 25 | [***] |
| 101 | Latka Taxi 96 LLC | Toyota Sienna - 25 | [***] |
| 102 | Latka Taxi 97 LLC | Toyota Sienna - 25 | [***] |
| 103 | Latka Taxi 97 LLC | Toyota Sienna - 25 | [***] |
| 104 | Latka Taxi 98 LLC | Toyota Sienna - 25 | [***] |
| 105 | Latka Taxi 98 LLC | Toyota Sienna - 25 | [***] |
| 106 | Latka Taxi 99 LLC | Toyota Sienna - 25 | [***] |
| 107 | Latka Taxi 99 LLC | Toyota Sienna - 25 | [***] |
| 108 | Latka Taxi 78 LLC | Toyota Sienna - 25 | [***] |
| 109 | Latka Taxi 78 LLC | Toyota Sienna - 25 | [***] |
| 110 | Latka Taxi 79 LLC | Toyota Sienna - 25 | [***] |
| 111 | Latka Taxi 79 LLC | Toyota Sienna - 25 | [***] |
| 112 | Latka Taxi 80 LLC | Toyota Sienna - 25 | [***] |
| 113 | Latka Taxi 81 LLC | Toyota Sienna - 25 | [***] |
| 114 | Latka Taxi 81 LLC | Toyota Sienna - 25 | [***] |
| 115 | Latka Taxi 82 LLC | Toyota Sienna - 25 | [***] |
| 116 | Latka Taxi 83 LLC | Toyota Sienna - 25 | [***] |
| 117 | Latka Taxi 75 LLC | Toyota Sienna - 25 | [***] |
| 118 | Latka Taxi 82 LLC | Toyota Sienna - 25 | [***] |
| 119 | Latka Taxi 83 LLC | Toyota Sienna - 25 | [***] |
| 120 | Latka Taxi 100 LLC | Toyota Sienna - 25 | [***] |
| 121 | Latka Taxi 100 LLC | Toyota Sienna - 25 | [***] |
| 122 | Latka Taxi 101 LLC | Toyota Sienna - 25 | [***] |
| 123 | Latka Taxi 101 LLC | Toyota Sienna - 25 | [***] |
| 124 | Latka Taxi 102 LLC | Toyota Sienna - 25 | [***] |
| 125 | Latka Taxi 102 LLC | Toyota Sienna - 25 | [***] |
| 126 | Latka Taxi 103 LLC | Toyota Sienna - 25 | [***] |
ACP – MIDDLE MARKET LOAN AND SECURITY AGREEMENT – 10/2/25
| 127 | Latka Taxi 103 LLC | Toyota Sienna - 25 | [***] |
|---|---|---|---|
| 128 | Latka Taxi 104 LLC | Toyota Sienna - 25 | [***] |
| 129 | Latka Taxi 104 LLC | Toyota Sienna - 25 | [***] |
| 130 | Latka Taxi 105 LLC | Toyota Sienna - 25 | [***] |
| 131 | Latka Taxi 105 LLC | Toyota Sienna - 25 | [***] |
| 132 | Latka Taxi 80 LLC | Toyota Sienna - 25 | [***] |
| 133 | Latka Taxi 106 LLC | Toyota Sienna - 25 | [***] |
| 134 | Latka Taxi 106 LLC | Toyota Sienna - 25 | [***] |
| 135 | Latka Taxi 107 LLC | Toyota Sienna - 25 | [***] |
| 136 | Latka Taxi 107 LLC | Toyota Sienna - 25 | [***] |
| 137 | Latka Taxi 108 LLC | Toyota Sienna - 25 | [***] |
| 138 | Latka Taxi 108 LLC | Toyota Sienna - 25 | [***] |
| 139 | Latka Taxi 109 LLC | Toyota Sienna - 25 | [***] |
| 140 | Latka Taxi 109 LLC | Toyota Sienna - 25 | [***] |
| 141 | Latka Taxi 11 LLC | Toyota Sienna - 25 | [***] |
| 142 | Latka Taxi 11 LLC | Toyota Sienna - 25 | [***] |
| 143 | Latka Taxi 111 LLC | Toyota Sienna - 25 | [***] |
| 144 | Latka Taxi 111 LLC | Toyota Sienna - 25 | [***] |
| 145 | Latka Taxi 112 LLC | Toyota Sienna - 25 | [***] |
| 146 | Latka Taxi 113 LLC | Toyota Sienna - 25 | [***] |
| 147 | Latka Taxi 113 LLC | Toyota Sienna - 25 | [***] |
| 148 | Latka Taxi 114 LLC | Toyota Sienna - 25 | [***] |
| 149 | Latka Taxi 114 LLC | Toyota Sienna - 25 | [***] |
| 150 | Latka Taxi 115 LLC | Toyota Sienna - 25 | [***] |
| 151 | Latka Taxi 115 LLC | Toyota Sienna - 25 | [***] |
| 152 | Latka Taxi 118 LLC | Toyota Sienna - 25 | [***] |
| 153 | Latka Taxi 118 LLC | Toyota Sienna - 25 | [***] |
| 154 | Latka Taxi 12 LLC | Toyota Sienna - 25 | [***] |
| 155 | Latka Taxi 12 LLC | Toyota Sienna - 25 | [***] |
| 156 | Latka Taxi 121 LLC | Toyota Sienna - 25 | [***] |
| 157 | Latka Taxi 121 LLC | Toyota Sienna - 25 | [***] |
| 158 | Latka Taxi 122 LLC | Toyota Sienna - 25 | [***] |
| 159 | Latka Taxi 122 LLC | Toyota Sienna - 25 | [***] |
| 160 | Latka Taxi 123 LLC | Toyota Sienna - 25 | [***] |
| 161 | Latka Taxi 124 LLC | Toyota Sienna - 25 | [***] |
| 162 | Latka Taxi 124 LLC | Toyota Sienna - 25 | [***] |
| 163 | Latka Taxi 125 LLC | Toyota Sienna - 25 | [***] |
| 164 | Latka Taxi 126 LLC | Toyota Sienna - 25 | [***] |
| 165 | Latka Taxi 126 LLC | Toyota Sienna - 25 | [***] |
| 166 | Latka Taxi 13 LLC | Toyota Sienna - 25 | [***] |
| 167 | Latka Taxi 13 LLC | Toyota Sienna - 25 | [***] |
| 168 | Latka Taxi 132 LLC | Toyota Sienna - 25 | [***] |
| 169 | Latka Taxi 132 LLC | Toyota Sienna - 25 | [***] |
| 170 | Latka Taxi 133 LLC | Toyota Sienna - 25 | [***] |
ACP – MIDDLE MARKET LOAN AND SECURITY AGREEMENT – 10/2/25
| 171 | Latka Taxi 133 LLC | Toyota Sienna - 25 | [***] |
|---|---|---|---|
| 172 | Latka Taxi 134 LLC | Toyota Sienna - 25 | [***] |
| 173 | Latka Taxi 134 LLC | Toyota Sienna - 25 | [***] |
| 174 | Latka Taxi 135 LLC | Toyota Sienna - 25 | [***] |
| 175 | Latka Taxi 135 LLC | Toyota Sienna - 25 | [***] |
| 176 | Latka Taxi 136 LLC | Toyota Sienna - 25 | [***] |
| 177 | Latka Taxi 138 LLC | Toyota Sienna - 25 | [***] |
| 178 | Latka Taxi 14 LLC | Toyota Sienna - 25 | [***] |
| 179 | Latka Taxi 14 LLC | Toyota Sienna - 25 | [***] |
| 180 | Latka Taxi 143 LLC | Toyota Sienna - 25 | [***] |
| 181 | Latka Taxi 144 LLC | Toyota Sienna - 25 | [***] |
| 182 | Latka Taxi 144 LLC | Toyota Sienna - 25 | [***] |
| 183 | Latka Taxi 145 LLC | Toyota Sienna - 25 | [***] |
| 184 | Latka Taxi 145 LLC | Toyota Sienna - 25 | [***] |
| 185 | Latka Taxi 146 LLC | Toyota Sienna - 25 | [***] |
| 186 | Latka Taxi 146 LLC | Toyota Sienna - 25 | [***] |
| 187 | Latka Taxi 146 LLC | Toyota Sienna - 25 | [***] |
| 188 | Latka Taxi 147 LLC | Toyota Sienna - 25 | [***] |
| 189 | Latka Taxi 147 LLC | Toyota Sienna - 25 | [***] |
| 190 | Latka Taxi 148 LLC | Toyota Sienna - 25 | [***] |
| 191 | Latka Taxi 148 LLC | Toyota Sienna - 25 | [***] |
| 192 | Latka Taxi 149 LLC | Toyota Sienna - 25 | [***] |
| 193 | Latka Taxi 149 LLC | Toyota Sienna - 25 | [***] |
| 194 | Latka Taxi 15 LLC | Toyota Sienna - 25 | [***] |
| 195 | Latka Taxi 15 LLC | Toyota Sienna - 25 | [***] |
| 196 | Latka Taxi 150 LLC | Toyota Sienna - 25 | [***] |
| 197 | Latka Taxi 150 LLC | Toyota Sienna - 25 | [***] |
| 198 | Latka Taxi 151 LLC | Toyota Sienna - 25 | [***] |
| 199 | Latka Taxi 151 LLC | Toyota Sienna - 25 | [***] |
| 200 | Latka Taxi 112 LLC | Toyota Sienna - 25 | [***] |
| 201 | Latka Taxi 125 LLC | Toyota Sienna - 25 | [***] |
| 202 | Latka Taxi 143 LLC | Toyota Sienna - 25 | [***] |
| 203 | Latka Taxi 154 LLC | Toyota Sienna - 25 | [***] |
| 204 | Latka Taxi 154 LLC | Toyota Sienna - 25 | [***] |
| 205 | Latka Taxi 155 LLC | Toyota Sienna - 25 | [***] |
| 206 | Latka Taxi 155 LLC | Toyota Sienna - 25 | [***] |
| 207 | Latka Taxi 158 LLC | Toyota Sienna - 25 | [***] |
| 208 | Latka Taxi 158 LLC | Toyota Sienna - 25 | [***] |
| 209 | Latka Taxi 159 LLC | Toyota Sienna - 25 | [***] |
| 210 | Latka Taxi 159 LLC | Toyota Sienna - 25 | [***] |
| 211 | Latka Taxi 16 LLC | Toyota Sienna - 25 | [***] |
| 212 | Latka Taxi 16 LLC | Toyota Sienna - 25 | [***] |
| 213 | Latka Taxi 161 LLC | Toyota Sienna - 25 | [***] |
| 214 | Latka Taxi 161 LLC | Toyota Sienna - 25 | [***] |
ACP – MIDDLE MARKET LOAN AND SECURITY AGREEMENT – 10/2/25
| 215 | Latka Taxi 163 LLC | Toyota Sienna - 25 | [***] |
|---|---|---|---|
| 216 | Latka Taxi 165 LLC | Toyota Sienna - 25 | [***] |
| 217 | Latka Taxi 165 LLC | Toyota Sienna - 25 | [***] |
| 218 | Latka Taxi 165 LLC | Toyota Sienna - 25 | [***] |
| 219 | Latka Taxi 167 LLC | Toyota Sienna - 25 | [***] |
| 220 | Latka Taxi 167 LLC | Toyota Sienna - 25 | [***] |
| 221 | Latka Taxi 167 LLC | Toyota Sienna - 25 | [***] |
| 222 | Latka Taxi 168 LLC | Toyota Sienna - 25 | [***] |
| 223 | Latka Taxi 168 LLC | Toyota Sienna - 25 | [***] |
| 224 | Latka Taxi 17 LLC | Toyota Sienna - 25 | [***] |
| 225 | Latka Taxi 17 LLC | Toyota Sienna - 25 | [***] |
| 226 | Latka Taxi 171 LLC | Toyota Sienna - 25 | [***] |
| 227 | Latka Taxi 171 LLC | Toyota Sienna - 25 | [***] |
| 228 | Latka Taxi 172 LLC | Toyota Sienna - 25 | [***] |
| 229 | Latka Taxi 172 LLC | Toyota Sienna - 25 | [***] |
| 230 | Latka Taxi 164 LLC | Toyota Sienna - 25 | [***] |
| 231 | Latka Taxi 174 LLC | Toyota Sienna - 25 | [***] |
| 232 | Latka Taxi 174 LLC | Toyota Sienna - 25 | [***] |
| 233 | Latka Taxi 19 LLC | Toyota Sienna - 25 | [***] |
| 234 | Latka Taxi 19 LLC | Toyota Sienna - 25 | [***] |
| 235 | Latka Taxi 20 LLC | Toyota Sienna - 25 | [***] |
| 236 | Latka Taxi 20 LLC | Toyota Sienna - 25 | [***] |
| 237 | Latka Taxi 24 LLC | Toyota Sienna - 25 | [***] |
| 238 | Latka Taxi 24 LLC | Toyota Sienna - 25 | [***] |
| 239 | Latka Taxi 26 LLC | Toyota Sienna - 25 | [***] |
| 240 | Latka Taxi 26 LLC | Toyota Sienna - 25 | [***] |
| 241 | Latka Taxi 27 LLC | Toyota Sienna - 25 | [***] |
| 242 | Latka Taxi 27 LLC | Toyota Sienna - 25 | [***] |
| 243 | Latka Taxi 28 LLC | Toyota Sienna - 25 | [***] |
| 244 | Latka Taxi 28 LLC | Toyota Sienna - 25 | [***] |
| 245 | Latka Taxi 29 LLC | Toyota Sienna - 25 | [***] |
| 246 | Latka Taxi 29 LLC | Toyota Sienna - 25 | [***] |
| 247 | Latka Taxi 31 LLC | Toyota Sienna - 25 | [***] |
| 248 | Latka Taxi 31 LLC | Toyota Sienna - 25 | [***] |
| 249 | Latka Taxi 32 LLC | Toyota Sienna - 25 | [***] |
| 250 | Latka Taxi 32 LLC | Toyota Sienna - 25 | [***] |
| 251 | Latka Taxi 33 LLC | Toyota Sienna - 25 | [***] |
| 252 | Latka Taxi 34 LLC | Toyota Sienna - 25 | [***] |
| 253 | Latka Taxi 35 LLC | Toyota Sienna - 25 | [***] |
| 254 | Latka Taxi 35 LLC | Toyota Sienna - 25 | [***] |
| 255 | Latka Taxi 36 LLC | Toyota Sienna - 25 | [***] |
| 256 | Latka Taxi 37 LLC | Toyota Sienna - 25 | [***] |
| 257 | Latka Taxi 38 LLC | Toyota Sienna - 25 | [***] |
| 258 | Latka Taxi 38 LLC | Toyota Sienna - 25 | [***] |
ACP – MIDDLE MARKET LOAN AND SECURITY AGREEMENT – 10/2/25
| 259 | Latka Taxi 39 LLC | Toyota Sienna - 25 | [***] |
|---|---|---|---|
| 260 | Latka Taxi 58 LLC | Toyota Sienna - 25 | [***] |
| 261 | Latka Taxi 76 LLC | Toyota Sienna - 25 | [***] |
| 262 | Wheeler Taxi 11 LLC | Toyota Sienna - 25 | [***] |
| 263 | Wheeler Taxi 11 LLC | Toyota Sienna - 25 | [***] |
| 264 | Wheeler Taxi 12 LLC | Toyota Sienna - 25 | [***] |
| 265 | Wheeler Taxi 12 LLC | Toyota Sienna - 25 | [***] |
| 266 | Wheeler Taxi 13 LLC | Toyota Sienna - 25 | [***] |
| 267 | Wheeler Taxi 13 LLC | Toyota Sienna - 25 | [***] |
| 268 | Wheeler Taxi 14 LLC | Toyota Sienna - 25 | [***] |
| 269 | Wheeler Taxi 14 LLC | Toyota Sienna - 25 | [***] |
| 270 | Wheeler Taxi 15 LLC | Toyota Sienna - 25 | [***] |
| 271 | Wheeler Taxi 15 LLC | Toyota Sienna - 25 | [***] |
| 272 | Wheeler Taxi 16 LLC | Toyota Sienna - 25 | [***] |
| 273 | Wheeler Taxi 16 LLC | Toyota Sienna - 25 | [***] |
| 274 | Wheeler Taxi 18 LLC | Toyota Sienna - 25 | [***] |
| 275 | Wheeler Taxi 18 LLC | Toyota Sienna - 25 | [***] |
| 276 | Wheeler Taxi 19 LLC | Toyota Sienna - 25 | [***] |
| 277 | Wheeler Taxi 19 LLC | Toyota Sienna - 25 | [***] |
| 278 | Wheeler Taxi 2 LLC | Toyota Sienna - 25 | [***] |
| 279 | Wheeler Taxi 2 LLC | Toyota Sienna - 25 | [***] |
| 280 | Wheeler Taxi 20 LLC | Toyota Sienna - 25 | [***] |
| 281 | Wheeler Taxi 20 LLC | Toyota Sienna - 25 | [***] |
| 282 | Wheeler Taxi 21 LLC | Toyota Sienna - 25 | [***] |
| 283 | Wheeler Taxi 21 LLC | Toyota Sienna - 25 | [***] |
| 284 | Wheeler Taxi 25 LLC | Toyota Sienna - 25 | [***] |
| 285 | Wheeler Taxi 25 LLC | Toyota Sienna - 25 | [***] |
| 286 | Wheeler Taxi 26 LLC | Toyota Sienna - 25 | [***] |
| 287 | Wheeler Taxi 26 LLC | Toyota Sienna - 25 | [***] |
| 288 | Wheeler Taxi 27 LLC | Toyota Sienna - 25 | [***] |
| 289 | Wheeler Taxi 27 LLC | Toyota Sienna - 25 | [***] |
| 290 | Wheeler Taxi 28 LLC | Toyota Sienna - 25 | [***] |
| 291 | Wheeler Taxi 28 LLC | Toyota Sienna - 25 | [***] |
| 292 | Wheeler Taxi 29 LLC | Toyota Sienna - 25 | [***] |
| 293 | Wheeler Taxi 29 LLC | Toyota Sienna - 25 | [***] |
| 294 | Wheeler Taxi 3 LLC | Toyota Sienna - 25 | [***] |
| 295 | Wheeler Taxi 3 LLC | Toyota Sienna - 25 | [***] |
| 296 | Wheeler Taxi 30 LLC | Toyota Sienna - 25 | [***] |
| 297 | Wheeler Taxi 30 LLC | Toyota Sienna - 25 | [***] |
| 298 | Wheeler Taxi 31 LLC | Toyota Sienna - 25 | [***] |
| 299 | Wheeler Taxi 31 LLC | Toyota Sienna - 25 | [***] |
| 300 | Wheeler Taxi 32 LLC | Toyota Sienna - 25 | [***] |
| 301 | Wheeler Taxi 32 LLC | Toyota Sienna - 25 | [***] |
| 302 | Wheeler Taxi 33 LLC | Toyota Sienna - 25 | [***] |
ACP – MIDDLE MARKET LOAN AND SECURITY AGREEMENT – 10/2/25
| 303 | Wheeler Taxi 33 LLC | Toyota Sienna - 25 | [***] |
|---|---|---|---|
| 304 | Wheeler Taxi 34 LLC | Toyota Sienna - 25 | [***] |
| 305 | Wheeler Taxi 34 LLC | Toyota Sienna - 25 | [***] |
| 306 | Wheeler Taxi 35 LLC | Toyota Sienna - 25 | [***] |
| 307 | Wheeler Taxi 35 LLC | Toyota Sienna - 25 | [***] |
| 308 | Wheeler Taxi 36 LLC | Toyota Sienna - 25 | [***] |
| 309 | Wheeler Taxi 36 LLC | Toyota Sienna - 25 | [***] |
| 310 | Wheeler Taxi 37 LLC | Toyota Sienna - 25 | [***] |
| 311 | Wheeler Taxi 37 LLC | Toyota Sienna - 25 | [***] |
| 312 | Wheeler Taxi 38 LLC | Toyota Sienna - 25 | [***] |
| 313 | Wheeler Taxi 38 LLC | Toyota Sienna - 25 | [***] |
| 314 | Wheeler Taxi 39 LLC | Toyota Sienna - 25 | [***] |
| 315 | Wheeler Taxi 4 LLC | Toyota Sienna - 25 | [***] |
| 316 | Wheeler Taxi 4 LLC | Toyota Sienna - 25 | [***] |
| 317 | Wheeler Taxi 40 LLC | Toyota Sienna - 25 | [***] |
| 318 | Wheeler Taxi 40 LLC | Toyota Sienna - 25 | [***] |
| 319 | Wheeler Taxi 41 LLC | Toyota Sienna - 25 | [***] |
| 320 | Wheeler Taxi 41 LLC | Toyota Sienna - 25 | [***] |
| 321 | Wheeler Taxi 42 LLC | Toyota Sienna - 25 | [***] |
| 322 | Wheeler Taxi 39 LLC | Toyota Sienna - 25 | [***] |
| 323 | Wheeler Taxi 42 LLC | Toyota Sienna - 25 | [***] |
| 324 | Wheeler Taxi 43 LLC | Toyota Sienna - 25 | [***] |
| 325 | Wheeler Taxi 43 LLC | Toyota Sienna - 25 | [***] |
| 326 | Wheeler Taxi 44 LLC | Toyota Sienna - 25 | [***] |
| 327 | Wheeler Taxi 45 LLC | Toyota Sienna - 25 | [***] |
| 328 | Wheeler Taxi 45 LLC | Toyota Sienna - 25 | [***] |
| 329 | Wheeler Taxi 46 LLC | Toyota Sienna - 25 | [***] |
| 330 | Wheeler Taxi 46 LLC | Toyota Sienna - 25 | [***] |
| 331 | Wheeler Taxi 47 LLC | Toyota Sienna - 25 | [***] |
| 332 | Wheeler Taxi 47 LLC | Toyota Sienna - 25 | [***] |
| 333 | Wheeler Taxi 48 LLC | Toyota Sienna - 25 | [***] |
| 334 | Wheeler Taxi 48 LLC | Toyota Sienna - 25 | [***] |
| 335 | Wheeler Taxi 49 LLC | Toyota Sienna - 25 | [***] |
| 336 | Wheeler Taxi 49 LLC | Toyota Sienna - 25 | [***] |
| 337 | Wheeler Taxi 5 LLC | Toyota Sienna - 25 | [***] |
| 338 | Wheeler Taxi 5 LLC | Toyota Sienna - 25 | [***] |
| 339 | Wheeler Taxi 50 LLC | Toyota Sienna - 25 | [***] |
| 340 | Wheeler Taxi 50 LLC | Toyota Sienna - 25 | [***] |
| 341 | Wheeler Taxi 51 LLC | Toyota Sienna - 25 | [***] |
| 342 | Wheeler Taxi 51 LLC | Toyota Sienna - 25 | [***] |
| 343 | Wheeler Taxi 52 LLC | Toyota Sienna - 25 | [***] |
| 344 | Wheeler Taxi 52 LLC | Toyota Sienna - 25 | [***] |
| 345 | Wheeler Taxi 53 LLC | Toyota Sienna - 25 | [***] |
| 346 | Wheeler Taxi 53 LLC | Toyota Sienna - 25 | [***] |
ACP – MIDDLE MARKET LOAN AND SECURITY AGREEMENT – 10/2/25
| 347 | Wheeler Taxi 54 LLC | Toyota Sienna - 25 | [***] |
|---|---|---|---|
| 348 | Wheeler Taxi 54 LLC | Toyota Sienna - 25 | [***] |
| 349 | Wheeler Taxi 55 LLC | Toyota Sienna - 25 | [***] |
| 350 | Wheeler Taxi 55 LLC | Toyota Sienna - 25 | [***] |
| 351 | Wheeler Taxi 57 LLC | Toyota Sienna - 25 | [***] |
| 352 | Wheeler Taxi 57 LLC | Toyota Sienna - 25 | [***] |
| 353 | Wheeler Taxi 58 LLC | Toyota Sienna - 25 | [***] |
| 354 | Wheeler Taxi 58 LLC | Toyota Sienna - 25 | [***] |
| 355 | Wheeler Taxi 59 LLC | Toyota Sienna - 25 | [***] |
| 356 | Wheeler Taxi 59 LLC | Toyota Sienna - 25 | [***] |
| 357 | Wheeler Taxi 6 LLC | Toyota Sienna - 25 | [***] |
| 358 | Wheeler Taxi 60 LLC | Toyota Sienna - 25 | [***] |
| 359 | Wheeler Taxi 60 LLC | Toyota Sienna - 25 | [***] |
| 360 | Latka Taxi 156 LLC | Toyota Sienna - 25 | [***] |
| 361 | Latka Taxi 156 LLC | Toyota Sienna - 25 | [***] |
| 362 | Latka Taxi 160 LLC | Toyota Sienna - 25 | [***] |
| 363 | Latka Taxi 160 LLC | Toyota Sienna - 25 | [***] |
| 364 | Wheeler Taxi 9 LLC | Toyota Sienna - 25 | [***] |
| 365 | Wheeler Taxi 9 LLC | Toyota Sienna - 25 | [***] |
| 366 | Wheeler Taxi 8 LLC | Toyota Sienna - 25 | [***] |
| 367 | Wheeler Taxi 8 LLC | Toyota Sienna - 25 | [***] |
| 368 | Wheeler Taxi 7 LLC | Toyota Sienna - 25 | [***] |
| 369 | Wheeler Taxi 7 LLC | Toyota Sienna - 25 | [***] |
| 370 | Latka Taxi 170 LLC | Toyota Sienna - 25 | [***] |
| 371 | Latka Taxi 170 LLC | Toyota Sienna - 25 | [***] |
| 372 | Latka Taxi 173 LLC | Toyota Sienna - 25 | [***] |
| 373 | Latka Taxi 173 LLC | Toyota Sienna - 25 | [***] |
| 374 | Latka Taxi 183 LLC | Toyota Sienna - 25 | [***] |
| 375 | Latka Taxi 183 LLC | Toyota Sienna - 25 | [***] |
| 376 | Latka Taxi 200 LLC | Toyota Sienna - 25 | [***] |
| 377 | Latka Taxi 200 LLC | Toyota Sienna - 25 | [***] |
| 378 | Latka Taxi 187 LLC | Toyota Sienna - 25 | [***] |
| 379 | Latka Taxi 187 LLC | Toyota Sienna - 25 | [***] |
| 380 | Latka Taxi 177 LLC | Toyota Sienna - 25 | [***] |
| 381 | Latka Taxi 179 LLC | Toyota Sienna - 25 | [***] |
| 382 | Latka Taxi 157 LLC | Toyota Sienna - 25 | [***] |
| 383 | Latka Taxi 157 LLC | Toyota Sienna - 25 | [***] |
| 384 | Latka Taxi 153 LLC | Toyota Sienna - 25 | [***] |
| 385 | Latka Taxi 153 LLC | Toyota Sienna - 25 | [***] |
| 386 | Latka Taxi 181 LLC | Toyota Sienna - 25 | [***] |
| 387 | Latka Taxi 181 LLC | Toyota Sienna - 25 | [***] |
| 388 | Latka Taxi 129 LLC | Toyota Sienna - 25 | [***] |
| 389 | Latka Taxi 129 LLC | Toyota Sienna - 25 | [***] |
| 390 | Latka Taxi 162 LLC | Toyota Sienna - 25 | [***] |
ACP – MIDDLE MARKET LOAN AND SECURITY AGREEMENT – 10/2/25
| 391 | Latka Taxi 162 LLC | Toyota Sienna - 25 | [***] |
|---|---|---|---|
| 392 | Latka Taxi 178 LLC | Toyota Sienna - 25 | [***] |
| 393 | Latka Taxi 191 LLC | Toyota Sienna - 25 | [***] |
| 394 | Latka Taxi 191 LLC | Toyota Sienna - 25 | [***] |
| 395 | Latka Taxi 175 LLC | Toyota Sienna - 25 | [***] |
| 396 | Latka Taxi 175 LLC | Toyota Sienna - 25 | [***] |
| 397 | Latka Taxi 130 LLC | Toyota Sienna - 25 | [***] |
| 398 | Latka Taxi 128 LLC | Toyota Sienna - 25 | [***] |
| 399 | Latka Taxi 130 LLC | Toyota Sienna - 25 | [***] |
| 400 | Latka Taxi 128 LLC | Toyota Sienna - 25 | [***] |
| 401 | Latka Taxi 182 LLC | Toyota Sienna - 25 | [***] |
| 402 | Latka Taxi 182 LLC | Toyota Sienna - 25 | [***] |
| 403 | Latka Taxi 193 LLC | Toyota Sienna - 25 | [***] |
| 404 | Latka Taxi 193 LLC | Toyota Sienna - 25 | [***] |
| 405 | Latka Taxi 189 LLC | Toyota Sienna - 25 | [***] |
| 406 | Latka Taxi 189 LLC | Toyota Sienna - 25 | [***] |
| 407 | Latka Taxi 186 LLC | Toyota Sienna - 25 | [***] |
| 408 | Latka Taxi 186 LLC | Toyota Sienna - 25 | [***] |
| 409 | Latka Taxi 177 LLC | Toyota Sienna - 25 | [***] |
| 410 | Latka Taxi 192 LLC | Toyota Sienna - 25 | [***] |
| 411 | Latka Taxi 192 LLC | Toyota Sienna - 25 | [***] |
| 412 | Latka Taxi 178 LLC | Toyota Sienna - 25 | [***] |
| 413 | Latka Taxi 188 LLC | Toyota Sienna - 25 | [***] |
| 414 | Latka Taxi 188 LLC | Toyota Sienna - 25 | [***] |
| 415 | Latka Taxi 179 LLC | Toyota Sienna - 25 | [***] |
| 416 | Latka Taxi 176 LLC | Toyota Sienna - 25 | [***] |
| 417 | Latka Taxi 176 LLC | Toyota Sienna - 25 | [***] |
| 418 | Latka Taxi 131 LLC | Toyota Sienna - 25 | [***] |
| 419 | Latka Taxi 110 LLC | Toyota Sienna - 25 | [***] |
| 420 | Latka Taxi 131 LLC | Toyota Sienna - 25 | [***] |
| 421 | Latka Taxi 110 LLC | Toyota Sienna - 25 | [***] |
| 422 | Latka Taxi 166 LLC | Toyota Sienna - 25 | [***] |
| 423 | Latka Taxi 166 LLC | Toyota Sienna - 25 | [***] |
| 424 | Latka Taxi 166 LLC | Toyota Sienna - 25 | [***] |
| 425 | Latka Taxi 199 LLC | Toyota Sienna - 25 | [***] |
| 426 | Latka Taxi 197 LLC | Toyota Sienna - 25 | [***] |
| 427 | Latka Taxi 197 LLC | Toyota Sienna - 23 | [***] |
| 428 | Latka Taxi 196 LLC | Toyota Sienna - 23 | [***] |
| 429 | Latka Taxi 196 LLC | Toyota Sienna - 25 | [***] |
| 430 | Latka Taxi 198 LLC | Toyota Sienna - 25 | [***] |
| 431 | Latka Taxi 198 LLC | Toyota Sienna - 25 | [***] |
| 432 | Latka Taxi 136 LLC | Toyota Sienna - 25 | [***] |
| 433 | Latka Taxi 169 LLC | Toyota Sienna - 25 | [***] |
| 434 | Latka Taxi 169 LLC | Toyota Sienna - 25 | [***] |
ACP – MIDDLE MARKET LOAN AND SECURITY AGREEMENT – 10/2/25
| 435 | Latka Taxi 194 LLC | Toyota Sienna - 25 | [***] |
|---|---|---|---|
| 436 | Latka Taxi 194 LLC | Toyota Sienna - 25 | [***] |
| 437 | Latka Taxi 194 LLC | Toyota Sienna - 25 | [***] |
| 438 | Latka Taxi 180 LLC | Toyota Sienna - 25 | [***] |
| 439 | Latka Taxi 180 LLC | Toyota Sienna - 25 | [***] |
| 440 | Latka Taxi 180 LLC | Toyota Sienna - 25 | [***] |
| 441 | Latka Taxi 190 LLC | Toyota Sienna - 25 | [***] |
| 442 | Latka Taxi 190 LLC | Toyota Sienna - 25 | [***] |
| 443 | Latka Taxi 116 LLC | Toyota Sienna - 25 | [***] |
| 444 | Latka Taxi 116 LLC | Toyota Sienna - 25 | [***] |
| 445 | Latka Taxi 117 LLC | Toyota Sienna - 25 | [***] |
| 446 | Latka Taxi 137 LLC | Toyota Sienna - 25 | [***] |
| 447 | Latka Taxi 117 LLC | Toyota Sienna - 25 | [***] |
| 448 | Latka Taxi 163 LLC | Toyota Sienna - 25 | [***] |
| 449 | Latka Taxi 184 LLC | Toyota Sienna - 25 | [***] |
| 450 | Latka Taxi 184 LLC | Toyota Sienna - 25 | [***] |
| 451 | Latka Taxi 185 LLC | Toyota Sienna - 25 | [***] |
| 452 | Latka Taxi 185 LLC | Toyota Sienna - 25 | [***] |
| 453 | Latka Taxi 185 LLC | Toyota Sienna - 25 | [***] |
| 454 | Latka Taxi 119 LLC | Toyota Sienna - 25 | [***] |
| 455 | Latka Taxi 119 LLC | Toyota Sienna - 25 | [***] |
| 456 | Latka Taxi 137 LLC | Toyota Sienna - 25 | [***] |
| 457 | Latka Taxi 120 LLC | Toyota Sienna - 25 | [***] |
| 458 | Latka Taxi 123 LLC | Toyota Sienna - 25 | [***] |
| 459 | Latka Taxi 195 LLC | Toyota Sienna - 25 | [***] |
| 460 | Latka Taxi 195 LLC | Toyota Sienna - 25 | [***] |
| 461 | Latka Taxi 195 LLC | Toyota Sienna - 25 | [***] |
| 462 | Latka Taxi 127 LLC | Toyota Sienna - 25 | [***] |
| 463 | Latka Taxi 127 LLC | Toyota Sienna - 25 | [***] |
| 464 | Latka Taxi 142 LLC | Toyota Sienna - 25 | [***] |
| 465 | Latka Taxi 142 LLC | Toyota Sienna - 25 | [***] |
| 466 | Simka Taxi 107 LLC | Toyota Sienna - 25 | [***] |
| 467 | Simka Taxi 108 LLC | Toyota Sienna - 25 | [***] |
| 468 | Simka Taxi 108 LLC | Toyota Sienna - 25 | [***] |
| 469 | Simka Taxi 109 LLC | Toyota Sienna - 25 | [***] |
| 470 | Simka Taxi 109 LLC | Toyota Sienna - 25 | [***] |
| 471 | Simka Taxi 110 LLC | Toyota Sienna - 25 | [***] |
| 472 | Simka Taxi 110 LLC | Toyota Sienna - 25 | [***] |
| 473 | Simka Taxi 111 LLC | Toyota Sienna - 25 | [***] |
| 474 | Simka Taxi 111 LLC | Toyota Sienna - 25 | [***] |
| 475 | Simka Taxi 112 LLC | Toyota Sienna - 25 | [***] |
| 476 | Simka Taxi 112 LLC | Toyota Sienna - 25 | [***] |
| 477 | Simka Taxi 113 LLC | Toyota Sienna - 25 | [***] |
| 478 | Simka Taxi 113 LLC | Toyota Sienna - 25 | [***] |
ACP – MIDDLE MARKET LOAN AND SECURITY AGREEMENT – 10/2/25
| 479 | Simka Taxi 114 LLC | Toyota Sienna - 25 | [***] |
|---|---|---|---|
| 480 | Simka Taxi 114 LLC | Toyota Sienna - 25 | [***] |
| 481 | Simka Taxi 115 LLC | Toyota Sienna - 25 | [***] |
| 482 | Simka Taxi 115 LLC | Toyota Sienna - 25 | [***] |
| 483 | Simka Taxi 116 LLC | Toyota Sienna - 25 | [***] |
| 484 | Simka Taxi 116 LLC | Toyota Sienna - 25 | [***] |
| 485 | Simka Taxi 117 LLC | Toyota Sienna - 25 | [***] |
| 486 | Simka Taxi 117 LLC | Toyota Sienna - 25 | [***] |
| 487 | Simka Taxi 118 LLC | Toyota Sienna - 25 | [***] |
| 488 | Simka Taxi 118 LLC | Toyota Sienna - 25 | [***] |
| 489 | Simka Taxi 119 LLC | Toyota Sienna - 25 | [***] |
| 490 | Simka Taxi 119 LLC | Toyota Sienna - 25 | [***] |
| 491 | Simka Taxi 120 LLC | Toyota Sienna - 25 | [***] |
| 492 | Simka Taxi 120 LLC | Toyota Sienna - 25 | [***] |
| 493 | Simka Taxi 121 LLC | Toyota Sienna - 25 | [***] |
| 494 | Simka Taxi 121 LLC | Toyota Sienna - 25 | [***] |
| 495 | Latka Taxi 120 LLC | Toyota Sienna - 25 | [***] |
| 496 | Latka Taxi 138 LLC | Toyota Sienna - 25 | [***] |
| 497 | Latka Taxi 199 LLC | Toyota Sienna - 25 | [***] |
| 498 | Latka Taxi 139 LLC | Toyota Sienna - 25 | [***] |
| 499 | Latka Taxi 139 LLC | Toyota Sienna - 25 | [***] |
| 500 | Latka Taxi 140 LLC | Toyota Sienna - 25 | [***] |
| 501 | Latka Taxi 140 LLC | Toyota Sienna - 25 | [***] |
| 502 | Latka Taxi 141 LLC | Toyota Sienna - 25 | [***] |
| 503 | Latka Taxi 141 LLC | Toyota Sienna - 25 | [***] |
| 504 | Simka Taxi 100 LLC | Toyota Sienna - 25 | [***] |
| 505 | Simka Taxi 100 LLC | Toyota Sienna - 25 | [***] |
| 506 | Simka Taxi 101 LLC | Toyota Sienna - 25 | [***] |
| 507 | Simka Taxi 101 LLC | Toyota Sienna - 25 | [***] |
| 508 | Simka Taxi 102 LLC | Toyota Sienna - 25 | [***] |
| 509 | Simka Taxi 102 LLC | Toyota Sienna - 25 | [***] |
| 510 | Simka Taxi 103 LLC | Toyota Sienna - 25 | [***] |
| 511 | Simka Taxi 103 LLC | Toyota Sienna - 25 | [***] |
| 512 | Simka Taxi 104 LLC | Toyota Sienna - 25 | [***] |
| 513 | Simka Taxi 104 LLC | Toyota Sienna - 25 | [***] |
| 514 | Simka Taxi 105 LLC | Toyota Sienna - 25 | [***] |
| 515 | Simka Taxi 105 LLC | Toyota Sienna - 25 | [***] |
| 516 | Simka Taxi 106 LLC | Toyota Sienna - 25 | [***] |
| 517 | Simka Taxi 106 LLC | Toyota Sienna - 25 | [***] |
| 518 | Simka Taxi 107 LLC | Toyota Sienna - 25 | [***] |
ACP – MIDDLE MARKET LOAN AND SECURITY AGREEMENT – 10/2/25
SCHEDULE C
The Guarantor (MCC) agrees at all times to maintain the following as certified quarterly by the Borrower’s Chief Financial Officer:
Minimum Equity
Maintain USD 100,000,000 in total equity as reported under U.S. GAAP in its most recent SEC-filed consolidated balance sheet (Form 10-Q or 10-K) (“Equity”).
Leverage Ratio
Total Debt to Equity not to exceed 1.75x. Total Debt means the aggregate principal amount of all long-term interest-bearing indebtedness under committed credit facilities and term loans (including current maturities), as reflected on the Guarantor’s consolidated balance sheet prepared in accordance with U.S. GAAP, once such indebtedness is incurred. For avoidance of doubt, Total Debt excludes trade payables, accrued expenses, and any short-term operating liabilities.
Debt Service Coverage Ratio (“DSCR”)
(i) Threshold: 1.0x
(ii) Start Date: Testing begins June 30, 2027.
(iii) Calculation Method:
- DSCR = Adjusted EBITDA ÷ Debt Service
- Debt Service = all of Guarantor’s interest expense + scheduled principal payments due in that same 12-month period as Adjusted EBIDTA.
- Adjusted EBITDA will be:
- Run-rate Adjusted EBITDA annualized as follows:
- For the three months ending June 30, 2027;
- For this six months ending September 30, 2027;
- For the nine months ending December 31, 2027; and
- Beginning with March 31, 2028 and thereafter, the trailing twelve months.
- Adjusted EBITDA Definition
EBITDA including the following add-backs and adjustments, as approved by Lender acting reasonably:
- Management Fee – Add back any management fees paid or accrued.
- Non-Cash Expenses – Add back impairments, and other non-cash charges.
- Non-Recurring Income – Subtract non-recurring income.
- One-Time Expenses – Add back non-recurring expenses such as:
- Integration costs for acquisitions
- Setup costs for new taxi garages
- Operations for new providers
- Other non-recurring items (Capped at no more than 25% of covenant Adjusted EBITDA)
- Transaction Expenses – Add back expenses related to acquisitions, divestitures, financing costs, secondary equity sales, or other non-recurring transaction-related costs.
- Pro Forma EBITDA for Acquisitions – Adjusted EBITDA shall incorporate Pro Forma EBITDA for Acquisitions which shall include (without duplication): (i) the Adjusted EBITDA of any acquired entity or asset for the portion of the measurement period occurring prior to the reporting date; and (ii) the amount of expected cost savings and other revenue or cost synergies that are reasonably identifiable and projected by the Guarantor in good faith to result from such acquisition or investment.
- Pro Forma Run-Rate Cost Savings – Include cost savings anticipated within 24 months, capped at $5.0 million.
- Cure: Borrower may cure a Default resulting from a breach of the financial covenants set forth above by making an equity contribution to the Borrower, such cure to be made not more than twice per calendar year during the term of the Loan and not more than three times in the aggregate during the term of the Loan.
- Fleet Reporting
ACP – MIDDLE MARKET LOAN AND SECURITY AGREEMENT – 10/2/25
- Monthly mileage reporting beginning June 30, 2026.
Mileage based on most recent fleet garage visit or TLC inspection (occurs twice per year).
ACP – MIDDLE MARKET LOAN AND SECURITY AGREEMENT – 10/2/25
EX-10.8
Certain confidential information contained in this document, marked by “[***]”, has been omitted pursuant to Item 601(b)(10)(iv) of Regulation S-K because it is both (i) not material and (ii) is the type of information that the Company treats as private or confidential. Certain schedules (or similar attachments) also marked by “[***]” have been omitted pursuant to Item 601(a)(5) of Regulation S-K.
AUXILIOR CAPITAL PARTNERS, INC.
PROMISSORY NOTE NO. 001
$7,500,000 December 31, 2025
For value received, the receipt and sufficiency of which are hereby acknowledged, those certain wholly owned subsidiaries (each, an “SPV”) of DePalma Acquisition II LLC listed on Schedule B attached hereto (together with its successors and permitted assigns, “Borrower”), hereby promises to pay to the order of AUXILIOR CAPITAL PARTNERS, INC. (together with its successors, assigns and Participants, “Lender”), seven million five hundred thousand and 00/100 DOLLARS ($7,500,000), or, if less, the aggregate unpaid principal amount of the advances then having been made under the Agreement (as hereinafter defined), together with interest on the unpaid balance of such amount from the date of this Promissory Note at the Loan Rate or, under the circumstances contemplated by the Agreement, at the Default Rate or the Adjusted Rate. Interest shall be computed on the basis of a 30-day month/360-day year.
This Promissory Note is one of the Promissory Notes issued under the Loan and Security Agreement dated as December 31, 2025, between Borrower and Lender (said agreement, as the same shall be amended, restated or supplemented from time to time, being herein called the “Agreement”), to which reference is made for a statement of all of the terms and conditions of the Loan evidenced hereby. Capitalized terms not defined in this Promissory Note shall have the respective meanings assigned to them in the Agreement. This Promissory Note is secured by the Agreement, the other Loan Documents and the Collateral set forth on Schedule A, and is entitled to the benefit of the rights and security provided thereby. Borrower’s obligations are joint and several.
Principal and interest due hereunder shall be payable as follows:
Interest only shall be payable for the period from the date of execution of this Note to the Stated Maturity Date; payable on Payment Date, at the Loan Rate.
Thirty-six (36) consecutive monthly installments of principal and interest, each in the amount of $236,814 payable, in arrears, with the first such payment due on February 1, 2026 and subsequent payments being due and payable on the first (1st) day of each calendar month thereafter (each a “Payment Date”).
If any payment due hereunder is not received within five (5) days of its due date, Borrower shall pay a late charge equal to five percent (5.00%) of the amount in arrears.
As used herein, "Interest Period" means the period commencing on the date hereof and ending on the last day of the calendar month next succeeding the date hereof, and each subsequent calendar month thereafter; and “Loan Rate” shall mean eight and one-half percent (8.5%) per annum.
All payments shall be made to such account or address as Lender shall specify from time to time in writing. Unless payable earlier as provided in the Agreement, the outstanding principal and interest under this Promissory Note shall be immediately due and payable on January 1, 2029 (the “Stated Maturity Date”).
Borrower may prepay all (but not less than all) of the outstanding principal balance of this Promissory Note on a scheduled Payment Date occurring after one (1) year from the date hereof upon 30 days prior written notice from Borrower to Lender, provided that any such prepayment shall be made together with (a) all accrued interest and other charges and amounts owing hereunder through the date of prepayment, and (b) a prepayment fee equal to one percent (1%) of the amount prepaid multiplied by the number of years or fraction thereof for the then remaining term; provided, however, that, if any prepayment of this Promissory Note is made following an Event of Default, by reason of acceleration or otherwise, the prepayment charge shall be calculated based upon the full term. Notwithstanding the foregoing, Borrower may make partial prepayments of this Promissory Note not more than once per year in an amount not to exceed ten percent (10%) of the outstanding principal balance of the Promissory Note. In the event Borrower and Lender into a secured revolving credit facility any prepayment fee shall be waived.
Lender may require that any partial prepayments be made on the date the monthly installments are due under this Promissory Note. Notwithstanding the foregoing, upon receipt and application of the amounts so prepaid and, if applicable,
Lender shall re-calculate the principal balance then remaining, and any correlative adjustments to the payments provided for this Promissory Note (which adjustments shall be deemed final, absent manifest error) within five (5) Business Days’ after written notice thereof is provided by Lender to Borrower.
Payment Authorization: On the date of execution of this Promissory Note, Lender is hereby irrevocably authorized and directed to pay the Total Invoice Cost specified above as follows:
| Company Name | Wire Instructions | Amount |
|---|---|---|
| DePalma Acquisition II LLC | Bank Name: [***]_________<br><br>ABA #: [***]<br><br>Account #: [***]_________<br><br>Account #: ___________________<br><br>Name: DePalma Acquisition II LLC | $7,500,000 |
To the fullest extent permitted by Applicable Law, Borrower waives: (a) presentment, demand and protest, and notice of presentment, dishonor, intent to accelerate, acceleration, protest, default, nonpayment, maturity, release, compromise, settlement, extension or renewal of any or all of the Obligations, this Promissory Note or the other Loan Documents; and (b) all rights to notice and a hearing prior to Lender’s taking possession or control of, or to Lender’s replevy, attachment or levy upon, the Collateral or any bond or security that might be required by any court prior to allowing Lender to exercise any of its remedies.
Borrower acknowledges that this Promissory Note is executed as part of a commercial transaction and that the proceeds of this Promissory Note will not be used for any personal or consumer purpose.
In the event of the declaration by Lender of a Default under the Agreement, then this Promissory Note shall be in default and the balance of the principal sum then due hereunder, together with all accrued interest thereon, immediately shall become due and payable without further notice, such further notice being expressly waived, and Borrower shall be liable to the holder hereof for reasonable attorneys’ fees and costs of suit.
The remedies of Lender as provided herein and in the Agreement shall be cumulative and concurrent and may be pursued singly, successively or together, at the sole discretion of Lender, and may be exercised as often as occasion therefor shall occur; and the failure to exercise any such right or remedy shall in no event be construed as a waiver or release thereof.
It is the intention of the parties hereto to comply with the applicable usury laws. Accordingly, it is agreed that, notwithstanding any provisions to the contrary in this Promissory Note or the Agreement, in no event shall this Promissory Note or the Agreement require the payment or permit the collection of interest in excess of the maximum amount permitted by Applicable Law. If any such excess interest is contracted for, charged or received under this Promissory Note or the Agreement, or in the event that all of the principal balance shall be prepaid, so that under any of such circumstances the amount of interest contracted for, charged or received under this Promissory Note or the Agreement on the principal balance shall exceed the maximum amount of interest permitted by Applicable Law, then in such event: (a) the provisions of this paragraph shall govern and control, (b) neither Borrower nor any other person or entity now or hereafter liable for the payment hereof shall be obligated to pay the amount of such interest to the extent that it is in excess of the maximum amount of interest permitted by Applicable Law, (c) any such excess which may have been collected shall either be applied as a credit against the then unpaid principal balance or refunded to Borrower, at the option of Borrower (provided that upon the occurrence and continuance of any Default, such election shall be made by Lender), and (d) the effective rate of interest shall be automatically reduced to the maximum lawful contract rate allowed under Applicable Law as now or hereafter construed by the courts having jurisdiction thereof. It is further agreed that, without limitation of the foregoing, all calculations of the rate of interest contracted for, charged or received under this Promissory Note or the Agreement which are made for the purpose of determining whether such rate exceeds the maxi- mum lawful contract rate, shall be made, to the extent permitted by Applicable Law, by amortizing, prorating, allocating and spreading in equal parts during the period of the full
ACP – MIDDLE MARKET PROMISSORY NOTE – 10/2/252
stated term of the Indebtedness evidenced hereby, all interest at any time contracted for, charged or received from Borrower or otherwise by Lender in connection with such Obligations; provided, however, that if any applicable state law is amended or the law of the United States of America preempts any applicable state law, so that it becomes lawful for Lender to receive a greater interest per annum rate than is presently allowed by law, Borrower agrees that, on the effective date of such amendment or preemption, as the case may be, the lawful maximum hereunder shall be increased to the maximum interest rate per annum allowed by the amended state law or the law of the United States of America (but not in excess of the Loan Rate (or, if applicable, the Default Rate).
BORROWER HEREBY WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO WHICH BORROWER AND LENDER MAY BE PARTIES ARISING OUT OF OR IN ANY WAY PERTAINING TO THIS PROMISSORY NOTE. BORROWER AUTHORIZES LENDER TO FILE THIS PROVISION WITH THE CLERK OR JUDGE OF ANY COURT HEARING SUCH CLAIM. THIS WAIVER IS KNOWINGLY, WILLINGLY AND VOLUNTARILY MADE BY BORROWER AND BORROWER HEREBY ACKNOWLEDGES THAT NO REPRESENTATIONS OF FACT OR OPINION HAVE BEEN MADE BY ANY INDIVIDUAL TO INDUCE THIS WAIVER OF TRIAL BY JURY OR IN ANY WAY TO MODIFY OR NULLIFY ITS EFFECT. BORROWER FURTHER ACKNOWLEDGES THAT IT HAS BEEN REPRESENTED IN THE SIGNING OF THIS PROMISSORY NOTE AND IN THE MAKING OF THIS WAIVER BY LEGAL COUNSEL, SELECTED OF ITS OWN FREE WILL, AND THAT IT HAS HAD THE OPPORTUNITY TO DISCUSS THIS WAIVER WITH COUNSEL.
BORROWER AGREES THAT THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO THE CONFLICT OF LAWS PRINCIPLES OF SUCH STATE), INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE. Venue for any action hereunder or related hereto may be in any state or Federal court of competent jurisdiction in the State of New York, and Borrower submits to the jurisdiction of such courts.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
ACP – MIDDLE MARKET PROMISSORY NOTE – 10/2/253
IN WITNESS WHEREOF, this Promissory Note has been duly executed, under seal, as of the date first written
above.
DEPALMA ACQUISITION II LLC
On behalf of those certain wholly owned subsidiaries (each, an “SPV”) of DePalma Acquisition II LLC listed on Schedule B attached hereto
By: /s/ Michael Hutchby
Name: Michael Hutchby
Title: Chief Financial Officer
ACP – MIDDLE MARKET PROMISSORY NOTE – 10/2/254
SCHEDULE A
COLLATERAL
[***]
ACP – MIDDLE MARKET PROMISSORY NOTE – 10/2/255
SCHEDULE B
| LLC | |
|---|---|
| 1 | Latka Taxi 57 LLC |
| 2 | Latka Taxi 71 LLC |
| 3 | Latka Taxi 72 LLC |
| 4 | Latka Taxi 76 LLC |
| 5 | Latka Taxi 33 LLC |
| 6 | Latka Taxi 34 LLC |
| 7 | Latka Taxi 36 LLC |
| 8 | Latka Taxi 37 LLC |
| 9 | Latka Taxi 39 LLC |
| 10 | Latka Taxi 47 LLC |
| 11 | Latka Taxi 47 LLC |
| 12 | Latka Taxi 48 LLC |
| 13 | Latka Taxi 48 LLC |
| 14 | Latka Taxi 49 LLC |
| 15 | Latka Taxi 49 LLC |
| 16 | Latka Taxi 50 LLC |
| 17 | Latka Taxi 50 LLC |
| 18 | Latka Taxi 51 LLC |
| 19 | Latka Taxi 51 LLC |
| 20 | Latka Taxi 52 LLC |
| 21 | Latka Taxi 52 LLC |
| 22 | Latka Taxi 53 LLC |
| 23 | Latka Taxi 53 LLC |
| 24 | Latka Taxi 54 LLC |
| 25 | Latka Taxi 54 LLC |
| 26 | Latka Taxi 55 LLC |
| 27 | Latka Taxi 56 LLC |
| 28 | Latka Taxi 56 LLC |
| 29 | Latka Taxi 55 LLC |
| 30 | Latka Taxi 57 LLC |
| 31 | Latka Taxi 58 LLC |
| 32 | Latka Taxi 61 LLC |
| 33 | Latka Taxi 61 LLC |
| 34 | Latka Taxi 62 LLC |
| 35 | Latka Taxi 62 LLC |
| 36 | Latka Taxi 63 LLC |
| 37 | Latka Taxi 63 LLC |
| 38 | Latka Taxi 64 LLC |
| 39 | Latka Taxi 64 LLC |
ACP – MIDDLE MARKET PROMISSORY NOTE – 10/2/256
| 40 | Latka Taxi 65 LLC |
|---|---|
| 41 | Latka Taxi 65 LLC |
| 42 | Latka Taxi 66 LLC |
| 43 | Latka Taxi 66 LLC |
| 44 | Latka Taxi 67 LLC |
| 45 | Latka Taxi 67 LLC |
| 46 | Latka Taxi 68 LLC |
| 47 | Latka Taxi 68 LLC |
| 48 | Latka Taxi 69 LLC |
| 49 | Latka Taxi 69 LLC |
| 50 | Latka Taxi 69 LLC |
| 51 | Latka Taxi 70 LLC |
| 52 | Latka Taxi 70 LLC |
| 53 | Latka Taxi 71 LLC |
| 54 | Latka Taxi 72 LLC |
| 55 | Latka Taxi 73 LLC |
| 56 | Latka Taxi 73 LLC |
| 57 | Latka Taxi 40 LLC |
| 58 | Latka Taxi 40 LLC |
| 59 | Latka Taxi 41 LLC |
| 60 | Latka Taxi 41 LLC |
| 61 | Latka Taxi 42 LLC |
| 62 | Latka Taxi 42 LLC |
| 63 | Latka Taxi 43 LLC |
| 64 | Latka Taxi 43 LLC |
| 65 | Latka Taxi 44 LLC |
| 66 | Latka Taxi 44 LLC |
| 67 | Latka Taxi 45 LLC |
| 68 | Latka Taxi 45 LLC |
| 69 | Latka Taxi 46 LLC |
| 70 | Latka Taxi 46 LLC |
| 71 | Latka Taxi 74 LLC |
| 72 | Latka Taxi 74 LLC |
| 73 | Latka Taxi 75 LLC |
| 74 | Latka Taxi 77 LLC |
| 75 | Latka Taxi 77 LLC |
| 76 | Latka Taxi 84 LLC |
| 77 | Latka Taxi 84 LLC |
| 78 | Latka Taxi 85 LLC |
| 79 | Latka Taxi 85 LLC |
| 80 | Latka Taxi 86 LLC |
| 81 | Latka Taxi 86 LLC |
| 82 | Latka Taxi 87 LLC |
ACP – MIDDLE MARKET PROMISSORY NOTE – 10/2/257
| 83 | Latka Taxi 87 LLC |
|---|---|
| 84 | Latka Taxi 88 LLC |
| 85 | Latka Taxi 88 LLC |
| 86 | Latka Taxi 89 LLC |
| 87 | Latka Taxi 89 LLC |
| 88 | Latka Taxi 90 LLC |
| 89 | Latka Taxi 90 LLC |
| 90 | Latka Taxi 91 LLC |
| 91 | Latka Taxi 91 LLC |
| 92 | Latka Taxi 92 LLC |
| 93 | Latka Taxi 92 LLC |
| 94 | Latka Taxi 93 LLC |
| 95 | Latka Taxi 93 LLC |
| 96 | Latka Taxi 94 LLC |
| 97 | Latka Taxi 94 LLC |
| 98 | Latka Taxi 95 LLC |
| 99 | Latka Taxi 95 LLC |
| 100 | Latka Taxi 96 LLC |
| 101 | Latka Taxi 96 LLC |
| 102 | Latka Taxi 97 LLC |
| 103 | Latka Taxi 97 LLC |
| 104 | Latka Taxi 98 LLC |
| 105 | Latka Taxi 98 LLC |
| 106 | Latka Taxi 99 LLC |
| 107 | Latka Taxi 99 LLC |
| 108 | Latka Taxi 78 LLC |
| 109 | Latka Taxi 78 LLC |
| 110 | Latka Taxi 79 LLC |
| 111 | Latka Taxi 79 LLC |
| 112 | Latka Taxi 80 LLC |
| 113 | Latka Taxi 81 LLC |
| 114 | Latka Taxi 81 LLC |
| 115 | Latka Taxi 82 LLC |
| 116 | Latka Taxi 83 LLC |
| 117 | Latka Taxi 75 LLC |
| 118 | Latka Taxi 82 LLC |
| 119 | Latka Taxi 83 LLC |
| 120 | Latka Taxi 100 LLC |
| 121 | Latka Taxi 100 LLC |
| 122 | Latka Taxi 101 LLC |
| 123 | Latka Taxi 101 LLC |
| 124 | Latka Taxi 102 LLC |
| 125 | Latka Taxi 102 LLC |
ACP – MIDDLE MARKET PROMISSORY NOTE – 10/2/258
| 126 | Latka Taxi 103 LLC |
|---|---|
| 127 | Latka Taxi 103 LLC |
| 128 | Latka Taxi 104 LLC |
| 129 | Latka Taxi 104 LLC |
| 130 | Latka Taxi 105 LLC |
| 131 | Latka Taxi 105 LLC |
| 132 | Latka Taxi 80 LLC |
| 133 | Latka Taxi 106 LLC |
| 134 | Latka Taxi 106 LLC |
| 135 | Latka Taxi 107 LLC |
| 136 | Latka Taxi 107 LLC |
| 137 | Latka Taxi 108 LLC |
| 138 | Latka Taxi 108 LLC |
| 139 | Latka Taxi 109 LLC |
| 140 | Latka Taxi 109 LLC |
| 141 | Latka Taxi 11 LLC |
| 142 | Latka Taxi 11 LLC |
| 143 | Latka Taxi 111 LLC |
| 144 | Latka Taxi 111 LLC |
| 145 | Latka Taxi 112 LLC |
| 146 | Latka Taxi 113 LLC |
| 147 | Latka Taxi 113 LLC |
| 148 | Latka Taxi 114 LLC |
| 149 | Latka Taxi 114 LLC |
| 150 | Latka Taxi 115 LLC |
| 151 | Latka Taxi 115 LLC |
| 152 | Latka Taxi 118 LLC |
| 153 | Latka Taxi 118 LLC |
| 154 | Latka Taxi 12 LLC |
| 155 | Latka Taxi 12 LLC |
| 156 | Latka Taxi 121 LLC |
| 157 | Latka Taxi 121 LLC |
| 158 | Latka Taxi 122 LLC |
| 159 | Latka Taxi 122 LLC |
| 160 | Latka Taxi 123 LLC |
| 161 | Latka Taxi 124 LLC |
| 162 | Latka Taxi 124 LLC |
| 163 | Latka Taxi 125 LLC |
| 164 | Latka Taxi 126 LLC |
| 165 | Latka Taxi 126 LLC |
| 166 | Latka Taxi 13 LLC |
| 167 | Latka Taxi 13 LLC |
| 168 | Latka Taxi 132 LLC |
ACP – MIDDLE MARKET PROMISSORY NOTE – 10/2/259
| 169 | Latka Taxi 132 LLC |
|---|---|
| 170 | Latka Taxi 133 LLC |
| 171 | Latka Taxi 133 LLC |
| 172 | Latka Taxi 134 LLC |
| 173 | Latka Taxi 134 LLC |
| 174 | Latka Taxi 135 LLC |
| 175 | Latka Taxi 135 LLC |
| 176 | Latka Taxi 136 LLC |
| 177 | Latka Taxi 138 LLC |
| 178 | Latka Taxi 14 LLC |
| 179 | Latka Taxi 14 LLC |
| 180 | Latka Taxi 143 LLC |
| 181 | Latka Taxi 144 LLC |
| 182 | Latka Taxi 144 LLC |
| 183 | Latka Taxi 145 LLC |
| 184 | Latka Taxi 145 LLC |
| 185 | Latka Taxi 146 LLC |
| 186 | Latka Taxi 146 LLC |
| 187 | Latka Taxi 146 LLC |
| 188 | Latka Taxi 147 LLC |
| 189 | Latka Taxi 147 LLC |
| 190 | Latka Taxi 148 LLC |
| 191 | Latka Taxi 148 LLC |
| 192 | Latka Taxi 149 LLC |
| 193 | Latka Taxi 149 LLC |
| 194 | Latka Taxi 15 LLC |
| 195 | Latka Taxi 15 LLC |
| 196 | Latka Taxi 150 LLC |
| 197 | Latka Taxi 150 LLC |
| 198 | Latka Taxi 151 LLC |
| 199 | Latka Taxi 151 LLC |
| 200 | Latka Taxi 112 LLC |
| 201 | Latka Taxi 125 LLC |
| 202 | Latka Taxi 143 LLC |
| 203 | Latka Taxi 154 LLC |
| 204 | Latka Taxi 154 LLC |
| 205 | Latka Taxi 155 LLC |
| 206 | Latka Taxi 155 LLC |
| 207 | Latka Taxi 158 LLC |
| 208 | Latka Taxi 158 LLC |
| 209 | Latka Taxi 159 LLC |
| 210 | Latka Taxi 159 LLC |
| 211 | Latka Taxi 16 LLC |
ACP – MIDDLE MARKET PROMISSORY NOTE – 10/2/2510
| 212 | Latka Taxi 16 LLC |
|---|---|
| 213 | Latka Taxi 161 LLC |
| 214 | Latka Taxi 161 LLC |
| 215 | Latka Taxi 163 LLC |
| 216 | Latka Taxi 165 LLC |
| 217 | Latka Taxi 165 LLC |
| 218 | Latka Taxi 165 LLC |
| 219 | Latka Taxi 167 LLC |
| 220 | Latka Taxi 167 LLC |
| 221 | Latka Taxi 167 LLC |
| 222 | Latka Taxi 168 LLC |
| 223 | Latka Taxi 168 LLC |
| 224 | Latka Taxi 17 LLC |
| 225 | Latka Taxi 17 LLC |
| 226 | Latka Taxi 171 LLC |
| 227 | Latka Taxi 171 LLC |
| 228 | Latka Taxi 172 LLC |
| 229 | Latka Taxi 172 LLC |
| 230 | Latka Taxi 164 LLC |
| 231 | Latka Taxi 174 LLC |
| 232 | Latka Taxi 174 LLC |
| 233 | Latka Taxi 19 LLC |
| 234 | Latka Taxi 19 LLC |
| 235 | Latka Taxi 20 LLC |
| 236 | Latka Taxi 20 LLC |
| 237 | Latka Taxi 24 LLC |
| 238 | Latka Taxi 24 LLC |
| 239 | Latka Taxi 26 LLC |
| 240 | Latka Taxi 26 LLC |
| 241 | Latka Taxi 27 LLC |
| 242 | Latka Taxi 27 LLC |
| 243 | Latka Taxi 28 LLC |
| 244 | Latka Taxi 28 LLC |
| 245 | Latka Taxi 29 LLC |
| 246 | Latka Taxi 29 LLC |
| 247 | Latka Taxi 31 LLC |
| 248 | Latka Taxi 31 LLC |
| 249 | Latka Taxi 32 LLC |
| 250 | Latka Taxi 32 LLC |
| 251 | Latka Taxi 33 LLC |
| 252 | Latka Taxi 34 LLC |
| 253 | Latka Taxi 35 LLC |
| 254 | Latka Taxi 35 LLC |
ACP – MIDDLE MARKET PROMISSORY NOTE – 10/2/2511
| 255 | Latka Taxi 36 LLC |
|---|---|
| 256 | Latka Taxi 37 LLC |
| 257 | Latka Taxi 38 LLC |
| 258 | Latka Taxi 38 LLC |
| 259 | Latka Taxi 39 LLC |
| 260 | Latka Taxi 58 LLC |
| 261 | Latka Taxi 76 LLC |
| 262 | Wheeler Taxi 11 LLC |
| 263 | Wheeler Taxi 11 LLC |
| 264 | Wheeler Taxi 12 LLC |
| 265 | Wheeler Taxi 12 LLC |
| 266 | Wheeler Taxi 13 LLC |
| 267 | Wheeler Taxi 13 LLC |
| 268 | Wheeler Taxi 14 LLC |
| 269 | Wheeler Taxi 14 LLC |
| 270 | Wheeler Taxi 15 LLC |
| 271 | Wheeler Taxi 15 LLC |
| 272 | Wheeler Taxi 16 LLC |
| 273 | Wheeler Taxi 16 LLC |
| 274 | Wheeler Taxi 18 LLC |
| 275 | Wheeler Taxi 18 LLC |
| 276 | Wheeler Taxi 19 LLC |
| 277 | Wheeler Taxi 19 LLC |
| 278 | Wheeler Taxi 2 LLC |
| 279 | Wheeler Taxi 2 LLC |
| 280 | Wheeler Taxi 20 LLC |
| 281 | Wheeler Taxi 20 LLC |
| 282 | Wheeler Taxi 21 LLC |
| 283 | Wheeler Taxi 21 LLC |
| 284 | Wheeler Taxi 25 LLC |
| 285 | Wheeler Taxi 25 LLC |
| 286 | Wheeler Taxi 26 LLC |
| 287 | Wheeler Taxi 26 LLC |
| 288 | Wheeler Taxi 27 LLC |
| 289 | Wheeler Taxi 27 LLC |
| 290 | Wheeler Taxi 28 LLC |
| 291 | Wheeler Taxi 28 LLC |
| 292 | Wheeler Taxi 29 LLC |
| 293 | Wheeler Taxi 29 LLC |
| 294 | Wheeler Taxi 3 LLC |
| 295 | Wheeler Taxi 3 LLC |
| 296 | Wheeler Taxi 30 LLC |
| 297 | Wheeler Taxi 30 LLC |
ACP – MIDDLE MARKET PROMISSORY NOTE – 10/2/2512
| 298 | Wheeler Taxi 31 LLC |
|---|---|
| 299 | Wheeler Taxi 31 LLC |
| 300 | Wheeler Taxi 32 LLC |
| 301 | Wheeler Taxi 32 LLC |
| 302 | Wheeler Taxi 33 LLC |
| 303 | Wheeler Taxi 33 LLC |
| 304 | Wheeler Taxi 34 LLC |
| 305 | Wheeler Taxi 34 LLC |
| 306 | Wheeler Taxi 35 LLC |
| 307 | Wheeler Taxi 35 LLC |
| 308 | Wheeler Taxi 36 LLC |
| 309 | Wheeler Taxi 36 LLC |
| 310 | Wheeler Taxi 37 LLC |
| 311 | Wheeler Taxi 37 LLC |
| 312 | Wheeler Taxi 38 LLC |
| 313 | Wheeler Taxi 38 LLC |
| 314 | Wheeler Taxi 39 LLC |
| 315 | Wheeler Taxi 4 LLC |
| 316 | Wheeler Taxi 4 LLC |
| 317 | Wheeler Taxi 40 LLC |
| 318 | Wheeler Taxi 40 LLC |
| 319 | Wheeler Taxi 41 LLC |
| 320 | Wheeler Taxi 41 LLC |
| 321 | Wheeler Taxi 42 LLC |
| 322 | Wheeler Taxi 39 LLC |
| 323 | Wheeler Taxi 42 LLC |
| 324 | Wheeler Taxi 43 LLC |
| 325 | Wheeler Taxi 43 LLC |
| 326 | Wheeler Taxi 44 LLC |
| 327 | Wheeler Taxi 45 LLC |
| 328 | Wheeler Taxi 45 LLC |
| 329 | Wheeler Taxi 46 LLC |
| 330 | Wheeler Taxi 46 LLC |
| 331 | Wheeler Taxi 47 LLC |
| 332 | Wheeler Taxi 47 LLC |
| 333 | Wheeler Taxi 48 LLC |
| 334 | Wheeler Taxi 48 LLC |
| 335 | Wheeler Taxi 49 LLC |
| 336 | Wheeler Taxi 49 LLC |
| 337 | Wheeler Taxi 5 LLC |
| 338 | Wheeler Taxi 5 LLC |
| 339 | Wheeler Taxi 50 LLC |
| 340 | Wheeler Taxi 50 LLC |
ACP – MIDDLE MARKET PROMISSORY NOTE – 10/2/2513
| 341 | Wheeler Taxi 51 LLC |
|---|---|
| 342 | Wheeler Taxi 51 LLC |
| 343 | Wheeler Taxi 52 LLC |
| 344 | Wheeler Taxi 52 LLC |
| 345 | Wheeler Taxi 53 LLC |
| 346 | Wheeler Taxi 53 LLC |
| 347 | Wheeler Taxi 54 LLC |
| 348 | Wheeler Taxi 54 LLC |
| 349 | Wheeler Taxi 55 LLC |
| 350 | Wheeler Taxi 55 LLC |
| 351 | Wheeler Taxi 57 LLC |
| 352 | Wheeler Taxi 57 LLC |
| 353 | Wheeler Taxi 58 LLC |
| 354 | Wheeler Taxi 58 LLC |
| 355 | Wheeler Taxi 59 LLC |
| 356 | Wheeler Taxi 59 LLC |
| 357 | Wheeler Taxi 6 LLC |
| 358 | Wheeler Taxi 60 LLC |
| 359 | Wheeler Taxi 60 LLC |
| 360 | Latka Taxi 156 LLC |
| 361 | Latka Taxi 156 LLC |
| 362 | Latka Taxi 160 LLC |
| 363 | Latka Taxi 160 LLC |
| 364 | Wheeler Taxi 9 LLC |
| 365 | Wheeler Taxi 9 LLC |
| 366 | Wheeler Taxi 8 LLC |
| 367 | Wheeler Taxi 8 LLC |
| 368 | Wheeler Taxi 7 LLC |
| 369 | Wheeler Taxi 7 LLC |
| 370 | Latka Taxi 170 LLC |
| 371 | Latka Taxi 170 LLC |
| 372 | Latka Taxi 173 LLC |
| 373 | Latka Taxi 173 LLC |
| 374 | Latka Taxi 183 LLC |
| 375 | Latka Taxi 183 LLC |
| 376 | Latka Taxi 200 LLC |
| 377 | Latka Taxi 200 LLC |
| 378 | Latka Taxi 187 LLC |
| 379 | Latka Taxi 187 LLC |
| 380 | Latka Taxi 177 LLC |
| 381 | Latka Taxi 179 LLC |
| 382 | Latka Taxi 157 LLC |
| 383 | Latka Taxi 157 LLC |
ACP – MIDDLE MARKET PROMISSORY NOTE – 10/2/2514
| 384 | Latka Taxi 153 LLC |
|---|---|
| 385 | Latka Taxi 153 LLC |
| 386 | Latka Taxi 181 LLC |
| 387 | Latka Taxi 181 LLC |
| 388 | Latka Taxi 129 LLC |
| 389 | Latka Taxi 129 LLC |
| 390 | Latka Taxi 162 LLC |
| 391 | Latka Taxi 162 LLC |
| 392 | Latka Taxi 178 LLC |
| 393 | Latka Taxi 191 LLC |
| 394 | Latka Taxi 191 LLC |
| 395 | Latka Taxi 175 LLC |
| 396 | Latka Taxi 175 LLC |
| 397 | Latka Taxi 130 LLC |
| 398 | Latka Taxi 128 LLC |
| 399 | Latka Taxi 130 LLC |
| 400 | Latka Taxi 128 LLC |
| 401 | Latka Taxi 182 LLC |
| 402 | Latka Taxi 182 LLC |
| 403 | Latka Taxi 193 LLC |
| 404 | Latka Taxi 193 LLC |
| 405 | Latka Taxi 189 LLC |
| 406 | Latka Taxi 189 LLC |
| 407 | Latka Taxi 186 LLC |
| 408 | Latka Taxi 186 LLC |
| 409 | Latka Taxi 177 LLC |
| 410 | Latka Taxi 192 LLC |
| 411 | Latka Taxi 192 LLC |
| 412 | Latka Taxi 178 LLC |
| 413 | Latka Taxi 188 LLC |
| 414 | Latka Taxi 188 LLC |
| 415 | Latka Taxi 179 LLC |
| 416 | Latka Taxi 176 LLC |
| 417 | Latka Taxi 176 LLC |
| 418 | Latka Taxi 131 LLC |
| 419 | Latka Taxi 110 LLC |
| 420 | Latka Taxi 131 LLC |
| 421 | Latka Taxi 110 LLC |
| 422 | Latka Taxi 166 LLC |
| 423 | Latka Taxi 166 LLC |
| 424 | Latka Taxi 166 LLC |
| 425 | Latka Taxi 199 LLC |
| 426 | Latka Taxi 197 LLC |
ACP – MIDDLE MARKET PROMISSORY NOTE – 10/2/2515
| 427 | Latka Taxi 197 LLC |
|---|---|
| 428 | Latka Taxi 196 LLC |
| 429 | Latka Taxi 196 LLC |
| 430 | Latka Taxi 198 LLC |
| 431 | Latka Taxi 198 LLC |
| 432 | Latka Taxi 136 LLC |
| 433 | Latka Taxi 169 LLC |
| 434 | Latka Taxi 169 LLC |
| 435 | Latka Taxi 194 LLC |
| 436 | Latka Taxi 194 LLC |
| 437 | Latka Taxi 194 LLC |
| 438 | Latka Taxi 180 LLC |
| 439 | Latka Taxi 180 LLC |
| 440 | Latka Taxi 180 LLC |
| 441 | Latka Taxi 190 LLC |
| 442 | Latka Taxi 190 LLC |
| 443 | Latka Taxi 116 LLC |
| 444 | Latka Taxi 116 LLC |
| 445 | Latka Taxi 117 LLC |
| 446 | Latka Taxi 137 LLC |
| 447 | Latka Taxi 117 LLC |
| 448 | Latka Taxi 163 LLC |
| 449 | Latka Taxi 184 LLC |
| 450 | Latka Taxi 184 LLC |
| 451 | Latka Taxi 185 LLC |
| 452 | Latka Taxi 185 LLC |
| 453 | Latka Taxi 185 LLC |
| 454 | Latka Taxi 119 LLC |
| 455 | Latka Taxi 119 LLC |
| 456 | Latka Taxi 137 LLC |
| 457 | Latka Taxi 120 LLC |
| 458 | Latka Taxi 123 LLC |
| 459 | Latka Taxi 195 LLC |
| 460 | Latka Taxi 195 LLC |
| 461 | Latka Taxi 195 LLC |
| 462 | Latka Taxi 127 LLC |
| 463 | Latka Taxi 127 LLC |
| 464 | Latka Taxi 142 LLC |
| 465 | Latka Taxi 142 LLC |
| 466 | Simka Taxi 107 LLC |
| 467 | Simka Taxi 108 LLC |
| 468 | Simka Taxi 108 LLC |
| 469 | Simka Taxi 109 LLC |
ACP – MIDDLE MARKET PROMISSORY NOTE – 10/2/2516
| 470 | Simka Taxi 109 LLC |
|---|---|
| 471 | Simka Taxi 110 LLC |
| 472 | Simka Taxi 110 LLC |
| 473 | Simka Taxi 111 LLC |
| 474 | Simka Taxi 111 LLC |
| 475 | Simka Taxi 112 LLC |
| 476 | Simka Taxi 112 LLC |
| 477 | Simka Taxi 113 LLC |
| 478 | Simka Taxi 113 LLC |
| 479 | Simka Taxi 114 LLC |
| 480 | Simka Taxi 114 LLC |
| 481 | Simka Taxi 115 LLC |
| 482 | Simka Taxi 115 LLC |
| 483 | Simka Taxi 116 LLC |
| 484 | Simka Taxi 116 LLC |
| 485 | Simka Taxi 117 LLC |
| 486 | Simka Taxi 117 LLC |
| 487 | Simka Taxi 118 LLC |
| 488 | Simka Taxi 118 LLC |
| 489 | Simka Taxi 119 LLC |
| 490 | Simka Taxi 119 LLC |
| 491 | Simka Taxi 120 LLC |
| 492 | Simka Taxi 120 LLC |
| 493 | Simka Taxi 121 LLC |
| 494 | Simka Taxi 121 LLC |
| 495 | Latka Taxi 120 LLC |
| 496 | Latka Taxi 138 LLC |
| 497 | Latka Taxi 199 LLC |
| 498 | Latka Taxi 139 LLC |
| 499 | Latka Taxi 139 LLC |
| 500 | Latka Taxi 140 LLC |
| 501 | Latka Taxi 140 LLC |
| 502 | Latka Taxi 141 LLC |
| 503 | Latka Taxi 141 LLC |
| 504 | Simka Taxi 100 LLC |
| 505 | Simka Taxi 100 LLC |
| 506 | Simka Taxi 101 LLC |
| 507 | Simka Taxi 101 LLC |
| 508 | Simka Taxi 102 LLC |
| 509 | Simka Taxi 102 LLC |
| 510 | Simka Taxi 103 LLC |
| 511 | Simka Taxi 103 LLC |
| 512 | Simka Taxi 104 LLC |
ACP – MIDDLE MARKET PROMISSORY NOTE – 10/2/2517
| 513 | Simka Taxi 104 LLC |
|---|---|
| 514 | Simka Taxi 105 LLC |
| 515 | Simka Taxi 105 LLC |
| 516 | Simka Taxi 106 LLC |
| 517 | Simka Taxi 106 LLC |
| 518 | Simka Taxi 107 LLC |
ACP – MIDDLE MARKET PROMISSORY NOTE – 10/2/2518
EX-10.9
Certain confidential information contained in this document, marked by “[***]”, has been omitted pursuant to Item 601(b)(10)(iv) of Regulation S-K because it is both (i) not material and (ii) is the type of information that the Company treats as private or confidential. Certain schedules (or similar attachments) also marked by “[***]” have been omitted pursuant to Item 601(a)(5) of Regulation S-K.
AUXILIOR CAPITAL PARTNERS, INC.
PROMISSORY NOTE NO. 002
$4,860,000 December 31, 2025
For value received, the receipt and sufficiency of which are hereby acknowledged, those certain wholly owned subsidiaries (each, an “SPV”) of DePalma Acquisition II LLC listed on Schedule B attached hereto (together with its successors and permitted assigns, “Borrower”), hereby promises to pay to the order of AUXILIOR CAPITAL PARTNERS, INC. (together with its successors, assigns and Participants, “Lender”), four million eight hundred sixty thousand and 00/100 DOLLARS ($4,860,000), or, if less, the aggregate unpaid principal amount of the advances then having been made under the Agreement (as hereinafter defined), together with interest on the unpaid balance of such amount from the date of this Promissory Note at the Loan Rate or, under the circumstances contemplated by the Agreement, at the Default Rate or the Adjusted Rate. Interest shall be computed on the basis of a 30-day month/360-day year.
This Promissory Note is one of the Promissory Notes issued under the Loan and Security Agreement dated as December 31, 2025, between Borrower and Lender (said agreement, as the same shall be amended, restated or supplemented from time to time, being herein called the “Agreement”), to which reference is made for a statement of all of the terms and conditions of the Loan evidenced hereby. Capitalized terms not defined in this Promissory Note shall have the respective meanings assigned to them in the Agreement. This Promissory Note is secured by the Agreement, the other Loan Documents and the Collateral set forth on Schedule A, and is entitled to the benefit of the rights and security provided thereby. Borrower’s obligations are joint and several.
Principal and interest due hereunder shall be payable as follows:
Interest only shall be payable for the period from the date of execution of this Note to the Stated Maturity Date; payable on Payment Date, at the Loan Rate.
Thirty-six (36) consecutive monthly installments of principal and interest, each in the amount of $153,455, payable, in arrears, with the first such payment due on February 1, 2026 and subsequent payments being due and payable on the first (1st) day of each calendar month thereafter (each a “Payment Date”).
If any payment due hereunder is not received within five (5) days of its due date, Borrower shall pay a late charge equal to five percent (5.00%) of the amount in arrears.
As used herein, "Interest Period" means the period commencing on the date hereof and ending on the last day of the calendar month next succeeding the date hereof, and each subsequent calendar month thereafter; and “Loan Rate” shall mean eight and one-half percent (8.5%) per annum.
All payments shall be made to such account or address as Lender shall specify from time to time in writing. Unless payable earlier as provided in the Agreement, the outstanding principal and interest under this Promissory Note shall be immediately due and payable on January 1, 2029 (the “Stated Maturity Date”).
Borrower may prepay all (but not less than all) of the outstanding principal balance of this Promissory Note on a scheduled Payment Date occurring after one (1) year from the date hereof upon 30 days prior written notice from Borrower to Lender, provided that any such prepayment shall be made together with (a) all accrued interest and other charges and amounts owing hereunder through the date of prepayment, and (b) a prepayment fee equal to one percent (1%) of the amount prepaid multiplied by the number of years or fraction thereof for the then remaining term; provided, however, that, if any prepayment of this Promissory Note is made following an Event of Default, by reason of acceleration or otherwise, the prepayment charge shall be calculated based upon the full term. Notwithstanding the foregoing, Borrower may make partial prepayments of this Promissory Note not more than once per year in an amount not to exceed ten percent (10%) of the outstanding principal balance of the Promissory Note. In the event Borrower and Lender into a secured revolving credit facility any prepayment fee shall be waived.
Lender may require that any partial prepayments be made on the date the monthly installments are due under this Promissory Note. Notwithstanding the foregoing, upon receipt and application of the amounts so prepaid and, if applicable,
Lender shall re-calculate the principal balance then remaining, and any correlative adjustments to the payments provided for this Promissory Note (which adjustments shall be deemed final, absent manifest error) within five (5) Business Days’ after written notice thereof is provided by Lender to Borrower.
Payment Authorization: On the date of execution of this Promissory Note, Lender is hereby irrevocably authorized and directed to pay the Total Invoice Cost specified above as follows:
| Company Name | Wire Instructions | Amount |
|---|---|---|
| DePalma Acquisition II LLC | Bank Name: [***]_________<br><br>ABA #: [***]_________<br><br>Account #: [***]_________<br><br>Account #: ___________________<br><br>Name: DePalma Acquisition II LLC | $4,860,000 |
To the fullest extent permitted by Applicable Law, Borrower waives: (a) presentment, demand and protest, and notice of presentment, dishonor, intent to accelerate, acceleration, protest, default, nonpayment, maturity, release, compromise, settlement, extension or renewal of any or all of the Obligations, this Promissory Note or the other Loan Documents; and (b) all rights to notice and a hearing prior to Lender’s taking possession or control of, or to Lender’s replevy, attachment or levy upon, the Collateral or any bond or security that might be required by any court prior to allowing Lender to exercise any of its remedies.
Borrower acknowledges that this Promissory Note is executed as part of a commercial transaction and that the proceeds of this Promissory Note will not be used for any personal or consumer purpose.
In the event of the declaration by Lender of a Default under the Agreement, then this Promissory Note shall be in default and the balance of the principal sum then due hereunder, together with all accrued interest thereon, immediately shall become due and payable without further notice, such further notice being expressly waived, and Borrower shall be liable to the holder hereof for reasonable attorneys’ fees and costs of suit.
The remedies of Lender as provided herein and in the Agreement shall be cumulative and concurrent and may be pursued singly, successively or together, at the sole discretion of Lender, and may be exercised as often as occasion therefor shall occur; and the failure to exercise any such right or remedy shall in no event be construed as a waiver or release thereof.
It is the intention of the parties hereto to comply with the applicable usury laws. Accordingly, it is agreed that, notwithstanding any provisions to the contrary in this Promissory Note or the Agreement, in no event shall this Promissory Note or the Agreement require the payment or permit the collection of interest in excess of the maximum amount permitted by Applicable Law. If any such excess interest is contracted for, charged or received under this Promissory Note or the Agreement, or in the event that all of the principal balance shall be prepaid, so that under any of such circumstances the amount of interest contracted for, charged or received under this Promissory Note or the Agreement on the principal balance shall exceed the maximum amount of interest permitted by Applicable Law, then in such event: (a) the provisions of this paragraph shall govern and control, (b) neither Borrower nor any other person or entity now or hereafter liable for the payment hereof shall be obligated to pay the amount of such interest to the extent that it is in excess of the maximum amount of interest permitted by Applicable Law, (c) any such excess which may have been collected shall either be applied as a credit against the then unpaid principal balance or refunded to Borrower, at the option of Borrower (provided that upon the occurrence and continuance of any Default, such election shall be made by Lender), and (d) the effective rate of interest shall be automatically reduced to the maximum lawful contract rate allowed under Applicable Law as now or hereafter construed by the courts having jurisdiction thereof. It is further agreed that, without limitation of the foregoing, all calculations of the rate of interest contracted for, charged or received under this Promissory Note or the Agreement which are made for the purpose of determining whether such rate exceeds the maxi- mum lawful contract rate, shall be made, to the extent permitted by Applicable Law, by amortizing, prorating, allocating and spreading in equal parts during the period of the full
ACP – MIDDLE MARKET PROMISSORY NOTE – 10/2/252
stated term of the Indebtedness evidenced hereby, all interest at any time contracted for, charged or received from Borrower or otherwise by Lender in connection with such Obligations; provided, however, that if any applicable state law is amended or the law of the United States of America preempts any applicable state law, so that it becomes lawful for Lender to receive a greater interest per annum rate than is presently allowed by law, Borrower agrees that, on the effective date of such amendment or preemption, as the case may be, the lawful maximum hereunder shall be increased to the maximum interest rate per annum allowed by the amended state law or the law of the United States of America (but not in excess of the Loan Rate (or, if applicable, the Default Rate).
BORROWER HEREBY WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO WHICH BORROWER AND LENDER MAY BE PARTIES ARISING OUT OF OR IN ANY WAY PERTAINING TO THIS PROMISSORY NOTE. BORROWER AUTHORIZES LENDER TO FILE THIS PROVISION WITH THE CLERK OR JUDGE OF ANY COURT HEARING SUCH CLAIM. THIS WAIVER IS KNOWINGLY, WILLINGLY AND VOLUNTARILY MADE BY BORROWER AND BORROWER HEREBY ACKNOWLEDGES THAT NO REPRESENTATIONS OF FACT OR OPINION HAVE BEEN MADE BY ANY INDIVIDUAL TO INDUCE THIS WAIVER OF TRIAL BY JURY OR IN ANY WAY TO MODIFY OR NULLIFY ITS EFFECT. BORROWER FURTHER ACKNOWLEDGES THAT IT HAS BEEN REPRESENTED IN THE SIGNING OF THIS PROMISSORY NOTE AND IN THE MAKING OF THIS WAIVER BY LEGAL COUNSEL, SELECTED OF ITS OWN FREE WILL, AND THAT IT HAS HAD THE OPPORTUNITY TO DISCUSS THIS WAIVER WITH COUNSEL.
BORROWER AGREES THAT THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO THE CONFLICT OF LAWS PRINCIPLES OF SUCH STATE), INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE. Venue for any action hereunder or related hereto may be in any state or Federal court of competent jurisdiction in the State of New York, and Borrower submits to the jurisdiction of such courts.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
ACP – MIDDLE MARKET PROMISSORY NOTE – 10/2/253
IN WITNESS WHEREOF, this Promissory Note has been duly executed, under seal, as of the date first written
above.
DEPALMA ACQUISITION II LLC
On behalf of those certain wholly owned subsidiaries (each, an “SPV”) of DePalma Acquisition II LLC listed on Schedule B attached hereto
By: /s/ Michael Hutchby
Name: Michael Hutchby
Title: Chief Financial Officer
ACP – MIDDLE MARKET PROMISSORY NOTE – 10/2/254
ACP – MIDDLE MARKET PROMISSORY NOTE – 10/2/255
SCHEDULE A
COLLATERAL
[***]
ACP – MIDDLE MARKET PROMISSORY NOTE – 10/2/256
SCHEDULE B
| LLC | |
|---|---|
| 1 | Latka Taxi 57 LLC |
| 2 | Latka Taxi 71 LLC |
| 3 | Latka Taxi 72 LLC |
| 4 | Latka Taxi 76 LLC |
| 5 | Latka Taxi 33 LLC |
| 6 | Latka Taxi 34 LLC |
| 7 | Latka Taxi 36 LLC |
| 8 | Latka Taxi 37 LLC |
| 9 | Latka Taxi 39 LLC |
| 10 | Latka Taxi 47 LLC |
| 11 | Latka Taxi 47 LLC |
| 12 | Latka Taxi 48 LLC |
| 13 | Latka Taxi 48 LLC |
| 14 | Latka Taxi 49 LLC |
| 15 | Latka Taxi 49 LLC |
| 16 | Latka Taxi 50 LLC |
| 17 | Latka Taxi 50 LLC |
| 18 | Latka Taxi 51 LLC |
| 19 | Latka Taxi 51 LLC |
| 20 | Latka Taxi 52 LLC |
| 21 | Latka Taxi 52 LLC |
| 22 | Latka Taxi 53 LLC |
| 23 | Latka Taxi 53 LLC |
| 24 | Latka Taxi 54 LLC |
| 25 | Latka Taxi 54 LLC |
| 26 | Latka Taxi 55 LLC |
| 27 | Latka Taxi 56 LLC |
| 28 | Latka Taxi 56 LLC |
| 29 | Latka Taxi 55 LLC |
| 30 | Latka Taxi 57 LLC |
| 31 | Latka Taxi 58 LLC |
| 32 | Latka Taxi 61 LLC |
| 33 | Latka Taxi 61 LLC |
| 34 | Latka Taxi 62 LLC |
| 35 | Latka Taxi 62 LLC |
| 36 | Latka Taxi 63 LLC |
| 37 | Latka Taxi 63 LLC |
| 38 | Latka Taxi 64 LLC |
| 39 | Latka Taxi 64 LLC |
ACP – MIDDLE MARKET PROMISSORY NOTE – 10/2/257
| 40 | Latka Taxi 65 LLC |
|---|---|
| 41 | Latka Taxi 65 LLC |
| 42 | Latka Taxi 66 LLC |
| 43 | Latka Taxi 66 LLC |
| 44 | Latka Taxi 67 LLC |
| 45 | Latka Taxi 67 LLC |
| 46 | Latka Taxi 68 LLC |
| 47 | Latka Taxi 68 LLC |
| 48 | Latka Taxi 69 LLC |
| 49 | Latka Taxi 69 LLC |
| 50 | Latka Taxi 69 LLC |
| 51 | Latka Taxi 70 LLC |
| 52 | Latka Taxi 70 LLC |
| 53 | Latka Taxi 71 LLC |
| 54 | Latka Taxi 72 LLC |
| 55 | Latka Taxi 73 LLC |
| 56 | Latka Taxi 73 LLC |
| 57 | Latka Taxi 40 LLC |
| 58 | Latka Taxi 40 LLC |
| 59 | Latka Taxi 41 LLC |
| 60 | Latka Taxi 41 LLC |
| 61 | Latka Taxi 42 LLC |
| 62 | Latka Taxi 42 LLC |
| 63 | Latka Taxi 43 LLC |
| 64 | Latka Taxi 43 LLC |
| 65 | Latka Taxi 44 LLC |
| 66 | Latka Taxi 44 LLC |
| 67 | Latka Taxi 45 LLC |
| 68 | Latka Taxi 45 LLC |
| 69 | Latka Taxi 46 LLC |
| 70 | Latka Taxi 46 LLC |
| 71 | Latka Taxi 74 LLC |
| 72 | Latka Taxi 74 LLC |
| 73 | Latka Taxi 75 LLC |
| 74 | Latka Taxi 77 LLC |
| 75 | Latka Taxi 77 LLC |
| 76 | Latka Taxi 84 LLC |
| 77 | Latka Taxi 84 LLC |
| 78 | Latka Taxi 85 LLC |
| 79 | Latka Taxi 85 LLC |
| 80 | Latka Taxi 86 LLC |
| 81 | Latka Taxi 86 LLC |
| 82 | Latka Taxi 87 LLC |
ACP – MIDDLE MARKET PROMISSORY NOTE – 10/2/258
| 83 | Latka Taxi 87 LLC |
|---|---|
| 84 | Latka Taxi 88 LLC |
| 85 | Latka Taxi 88 LLC |
| 86 | Latka Taxi 89 LLC |
| 87 | Latka Taxi 89 LLC |
| 88 | Latka Taxi 90 LLC |
| 89 | Latka Taxi 90 LLC |
| 90 | Latka Taxi 91 LLC |
| 91 | Latka Taxi 91 LLC |
| 92 | Latka Taxi 92 LLC |
| 93 | Latka Taxi 92 LLC |
| 94 | Latka Taxi 93 LLC |
| 95 | Latka Taxi 93 LLC |
| 96 | Latka Taxi 94 LLC |
| 97 | Latka Taxi 94 LLC |
| 98 | Latka Taxi 95 LLC |
| 99 | Latka Taxi 95 LLC |
| 100 | Latka Taxi 96 LLC |
| 101 | Latka Taxi 96 LLC |
| 102 | Latka Taxi 97 LLC |
| 103 | Latka Taxi 97 LLC |
| 104 | Latka Taxi 98 LLC |
| 105 | Latka Taxi 98 LLC |
| 106 | Latka Taxi 99 LLC |
| 107 | Latka Taxi 99 LLC |
| 108 | Latka Taxi 78 LLC |
| 109 | Latka Taxi 78 LLC |
| 110 | Latka Taxi 79 LLC |
| 111 | Latka Taxi 79 LLC |
| 112 | Latka Taxi 80 LLC |
| 113 | Latka Taxi 81 LLC |
| 114 | Latka Taxi 81 LLC |
| 115 | Latka Taxi 82 LLC |
| 116 | Latka Taxi 83 LLC |
| 117 | Latka Taxi 75 LLC |
| 118 | Latka Taxi 82 LLC |
| 119 | Latka Taxi 83 LLC |
| 120 | Latka Taxi 100 LLC |
| 121 | Latka Taxi 100 LLC |
| 122 | Latka Taxi 101 LLC |
| 123 | Latka Taxi 101 LLC |
| 124 | Latka Taxi 102 LLC |
| 125 | Latka Taxi 102 LLC |
ACP – MIDDLE MARKET PROMISSORY NOTE – 10/2/259
| 126 | Latka Taxi 103 LLC |
|---|---|
| 127 | Latka Taxi 103 LLC |
| 128 | Latka Taxi 104 LLC |
| 129 | Latka Taxi 104 LLC |
| 130 | Latka Taxi 105 LLC |
| 131 | Latka Taxi 105 LLC |
| 132 | Latka Taxi 80 LLC |
| 133 | Latka Taxi 106 LLC |
| 134 | Latka Taxi 106 LLC |
| 135 | Latka Taxi 107 LLC |
| 136 | Latka Taxi 107 LLC |
| 137 | Latka Taxi 108 LLC |
| 138 | Latka Taxi 108 LLC |
| 139 | Latka Taxi 109 LLC |
| 140 | Latka Taxi 109 LLC |
| 141 | Latka Taxi 11 LLC |
| 142 | Latka Taxi 11 LLC |
| 143 | Latka Taxi 111 LLC |
| 144 | Latka Taxi 111 LLC |
| 145 | Latka Taxi 112 LLC |
| 146 | Latka Taxi 113 LLC |
| 147 | Latka Taxi 113 LLC |
| 148 | Latka Taxi 114 LLC |
| 149 | Latka Taxi 114 LLC |
| 150 | Latka Taxi 115 LLC |
| 151 | Latka Taxi 115 LLC |
| 152 | Latka Taxi 118 LLC |
| 153 | Latka Taxi 118 LLC |
| 154 | Latka Taxi 12 LLC |
| 155 | Latka Taxi 12 LLC |
| 156 | Latka Taxi 121 LLC |
| 157 | Latka Taxi 121 LLC |
| 158 | Latka Taxi 122 LLC |
| 159 | Latka Taxi 122 LLC |
| 160 | Latka Taxi 123 LLC |
| 161 | Latka Taxi 124 LLC |
| 162 | Latka Taxi 124 LLC |
| 163 | Latka Taxi 125 LLC |
| 164 | Latka Taxi 126 LLC |
| 165 | Latka Taxi 126 LLC |
| 166 | Latka Taxi 13 LLC |
| 167 | Latka Taxi 13 LLC |
| 168 | Latka Taxi 132 LLC |
ACP – MIDDLE MARKET PROMISSORY NOTE – 10/2/2510
| 169 | Latka Taxi 132 LLC |
|---|---|
| 170 | Latka Taxi 133 LLC |
| 171 | Latka Taxi 133 LLC |
| 172 | Latka Taxi 134 LLC |
| 173 | Latka Taxi 134 LLC |
| 174 | Latka Taxi 135 LLC |
| 175 | Latka Taxi 135 LLC |
| 176 | Latka Taxi 136 LLC |
| 177 | Latka Taxi 138 LLC |
| 178 | Latka Taxi 14 LLC |
| 179 | Latka Taxi 14 LLC |
| 180 | Latka Taxi 143 LLC |
| 181 | Latka Taxi 144 LLC |
| 182 | Latka Taxi 144 LLC |
| 183 | Latka Taxi 145 LLC |
| 184 | Latka Taxi 145 LLC |
| 185 | Latka Taxi 146 LLC |
| 186 | Latka Taxi 146 LLC |
| 187 | Latka Taxi 146 LLC |
| 188 | Latka Taxi 147 LLC |
| 189 | Latka Taxi 147 LLC |
| 190 | Latka Taxi 148 LLC |
| 191 | Latka Taxi 148 LLC |
| 192 | Latka Taxi 149 LLC |
| 193 | Latka Taxi 149 LLC |
| 194 | Latka Taxi 15 LLC |
| 195 | Latka Taxi 15 LLC |
| 196 | Latka Taxi 150 LLC |
| 197 | Latka Taxi 150 LLC |
| 198 | Latka Taxi 151 LLC |
| 199 | Latka Taxi 151 LLC |
| 200 | Latka Taxi 112 LLC |
| 201 | Latka Taxi 125 LLC |
| 202 | Latka Taxi 143 LLC |
| 203 | Latka Taxi 154 LLC |
| 204 | Latka Taxi 154 LLC |
| 205 | Latka Taxi 155 LLC |
| 206 | Latka Taxi 155 LLC |
| 207 | Latka Taxi 158 LLC |
| 208 | Latka Taxi 158 LLC |
| 209 | Latka Taxi 159 LLC |
| 210 | Latka Taxi 159 LLC |
| 211 | Latka Taxi 16 LLC |
ACP – MIDDLE MARKET PROMISSORY NOTE – 10/2/2511
| 212 | Latka Taxi 16 LLC |
|---|---|
| 213 | Latka Taxi 161 LLC |
| 214 | Latka Taxi 161 LLC |
| 215 | Latka Taxi 163 LLC |
| 216 | Latka Taxi 165 LLC |
| 217 | Latka Taxi 165 LLC |
| 218 | Latka Taxi 165 LLC |
| 219 | Latka Taxi 167 LLC |
| 220 | Latka Taxi 167 LLC |
| 221 | Latka Taxi 167 LLC |
| 222 | Latka Taxi 168 LLC |
| 223 | Latka Taxi 168 LLC |
| 224 | Latka Taxi 17 LLC |
| 225 | Latka Taxi 17 LLC |
| 226 | Latka Taxi 171 LLC |
| 227 | Latka Taxi 171 LLC |
| 228 | Latka Taxi 172 LLC |
| 229 | Latka Taxi 172 LLC |
| 230 | Latka Taxi 164 LLC |
| 231 | Latka Taxi 174 LLC |
| 232 | Latka Taxi 174 LLC |
| 233 | Latka Taxi 19 LLC |
| 234 | Latka Taxi 19 LLC |
| 235 | Latka Taxi 20 LLC |
| 236 | Latka Taxi 20 LLC |
| 237 | Latka Taxi 24 LLC |
| 238 | Latka Taxi 24 LLC |
| 239 | Latka Taxi 26 LLC |
| 240 | Latka Taxi 26 LLC |
| 241 | Latka Taxi 27 LLC |
| 242 | Latka Taxi 27 LLC |
| 243 | Latka Taxi 28 LLC |
| 244 | Latka Taxi 28 LLC |
| 245 | Latka Taxi 29 LLC |
| 246 | Latka Taxi 29 LLC |
| 247 | Latka Taxi 31 LLC |
| 248 | Latka Taxi 31 LLC |
| 249 | Latka Taxi 32 LLC |
| 250 | Latka Taxi 32 LLC |
| 251 | Latka Taxi 33 LLC |
| 252 | Latka Taxi 34 LLC |
| 253 | Latka Taxi 35 LLC |
| 254 | Latka Taxi 35 LLC |
ACP – MIDDLE MARKET PROMISSORY NOTE – 10/2/2512
| 255 | Latka Taxi 36 LLC |
|---|---|
| 256 | Latka Taxi 37 LLC |
| 257 | Latka Taxi 38 LLC |
| 258 | Latka Taxi 38 LLC |
| 259 | Latka Taxi 39 LLC |
| 260 | Latka Taxi 58 LLC |
| 261 | Latka Taxi 76 LLC |
| 262 | Wheeler Taxi 11 LLC |
| 263 | Wheeler Taxi 11 LLC |
| 264 | Wheeler Taxi 12 LLC |
| 265 | Wheeler Taxi 12 LLC |
| 266 | Wheeler Taxi 13 LLC |
| 267 | Wheeler Taxi 13 LLC |
| 268 | Wheeler Taxi 14 LLC |
| 269 | Wheeler Taxi 14 LLC |
| 270 | Wheeler Taxi 15 LLC |
| 271 | Wheeler Taxi 15 LLC |
| 272 | Wheeler Taxi 16 LLC |
| 273 | Wheeler Taxi 16 LLC |
| 274 | Wheeler Taxi 18 LLC |
| 275 | Wheeler Taxi 18 LLC |
| 276 | Wheeler Taxi 19 LLC |
| 277 | Wheeler Taxi 19 LLC |
| 278 | Wheeler Taxi 2 LLC |
| 279 | Wheeler Taxi 2 LLC |
| 280 | Wheeler Taxi 20 LLC |
| 281 | Wheeler Taxi 20 LLC |
| 282 | Wheeler Taxi 21 LLC |
| 283 | Wheeler Taxi 21 LLC |
| 284 | Wheeler Taxi 25 LLC |
| 285 | Wheeler Taxi 25 LLC |
| 286 | Wheeler Taxi 26 LLC |
| 287 | Wheeler Taxi 26 LLC |
| 288 | Wheeler Taxi 27 LLC |
| 289 | Wheeler Taxi 27 LLC |
| 290 | Wheeler Taxi 28 LLC |
| 291 | Wheeler Taxi 28 LLC |
| 292 | Wheeler Taxi 29 LLC |
| 293 | Wheeler Taxi 29 LLC |
| 294 | Wheeler Taxi 3 LLC |
| 295 | Wheeler Taxi 3 LLC |
| 296 | Wheeler Taxi 30 LLC |
| 297 | Wheeler Taxi 30 LLC |
ACP – MIDDLE MARKET PROMISSORY NOTE – 10/2/2513
| 298 | Wheeler Taxi 31 LLC |
|---|---|
| 299 | Wheeler Taxi 31 LLC |
| 300 | Wheeler Taxi 32 LLC |
| 301 | Wheeler Taxi 32 LLC |
| 302 | Wheeler Taxi 33 LLC |
| 303 | Wheeler Taxi 33 LLC |
| 304 | Wheeler Taxi 34 LLC |
| 305 | Wheeler Taxi 34 LLC |
| 306 | Wheeler Taxi 35 LLC |
| 307 | Wheeler Taxi 35 LLC |
| 308 | Wheeler Taxi 36 LLC |
| 309 | Wheeler Taxi 36 LLC |
| 310 | Wheeler Taxi 37 LLC |
| 311 | Wheeler Taxi 37 LLC |
| 312 | Wheeler Taxi 38 LLC |
| 313 | Wheeler Taxi 38 LLC |
| 314 | Wheeler Taxi 39 LLC |
| 315 | Wheeler Taxi 4 LLC |
| 316 | Wheeler Taxi 4 LLC |
| 317 | Wheeler Taxi 40 LLC |
| 318 | Wheeler Taxi 40 LLC |
| 319 | Wheeler Taxi 41 LLC |
| 320 | Wheeler Taxi 41 LLC |
| 321 | Wheeler Taxi 42 LLC |
| 322 | Wheeler Taxi 39 LLC |
| 323 | Wheeler Taxi 42 LLC |
| 324 | Wheeler Taxi 43 LLC |
| 325 | Wheeler Taxi 43 LLC |
| 326 | Wheeler Taxi 44 LLC |
| 327 | Wheeler Taxi 45 LLC |
| 328 | Wheeler Taxi 45 LLC |
| 329 | Wheeler Taxi 46 LLC |
| 330 | Wheeler Taxi 46 LLC |
| 331 | Wheeler Taxi 47 LLC |
| 332 | Wheeler Taxi 47 LLC |
| 333 | Wheeler Taxi 48 LLC |
| 334 | Wheeler Taxi 48 LLC |
| 335 | Wheeler Taxi 49 LLC |
| 336 | Wheeler Taxi 49 LLC |
| 337 | Wheeler Taxi 5 LLC |
| 338 | Wheeler Taxi 5 LLC |
| 339 | Wheeler Taxi 50 LLC |
| 340 | Wheeler Taxi 50 LLC |
ACP – MIDDLE MARKET PROMISSORY NOTE – 10/2/2514
| 341 | Wheeler Taxi 51 LLC |
|---|---|
| 342 | Wheeler Taxi 51 LLC |
| 343 | Wheeler Taxi 52 LLC |
| 344 | Wheeler Taxi 52 LLC |
| 345 | Wheeler Taxi 53 LLC |
| 346 | Wheeler Taxi 53 LLC |
| 347 | Wheeler Taxi 54 LLC |
| 348 | Wheeler Taxi 54 LLC |
| 349 | Wheeler Taxi 55 LLC |
| 350 | Wheeler Taxi 55 LLC |
| 351 | Wheeler Taxi 57 LLC |
| 352 | Wheeler Taxi 57 LLC |
| 353 | Wheeler Taxi 58 LLC |
| 354 | Wheeler Taxi 58 LLC |
| 355 | Wheeler Taxi 59 LLC |
| 356 | Wheeler Taxi 59 LLC |
| 357 | Wheeler Taxi 6 LLC |
| 358 | Wheeler Taxi 60 LLC |
| 359 | Wheeler Taxi 60 LLC |
| 360 | Latka Taxi 156 LLC |
| 361 | Latka Taxi 156 LLC |
| 362 | Latka Taxi 160 LLC |
| 363 | Latka Taxi 160 LLC |
| 364 | Wheeler Taxi 9 LLC |
| 365 | Wheeler Taxi 9 LLC |
| 366 | Wheeler Taxi 8 LLC |
| 367 | Wheeler Taxi 8 LLC |
| 368 | Wheeler Taxi 7 LLC |
| 369 | Wheeler Taxi 7 LLC |
| 370 | Latka Taxi 170 LLC |
| 371 | Latka Taxi 170 LLC |
| 372 | Latka Taxi 173 LLC |
| 373 | Latka Taxi 173 LLC |
| 374 | Latka Taxi 183 LLC |
| 375 | Latka Taxi 183 LLC |
| 376 | Latka Taxi 200 LLC |
| 377 | Latka Taxi 200 LLC |
| 378 | Latka Taxi 187 LLC |
| 379 | Latka Taxi 187 LLC |
| 380 | Latka Taxi 177 LLC |
| 381 | Latka Taxi 179 LLC |
| 382 | Latka Taxi 157 LLC |
| 383 | Latka Taxi 157 LLC |
ACP – MIDDLE MARKET PROMISSORY NOTE – 10/2/2515
| 384 | Latka Taxi 153 LLC |
|---|---|
| 385 | Latka Taxi 153 LLC |
| 386 | Latka Taxi 181 LLC |
| 387 | Latka Taxi 181 LLC |
| 388 | Latka Taxi 129 LLC |
| 389 | Latka Taxi 129 LLC |
| 390 | Latka Taxi 162 LLC |
| 391 | Latka Taxi 162 LLC |
| 392 | Latka Taxi 178 LLC |
| 393 | Latka Taxi 191 LLC |
| 394 | Latka Taxi 191 LLC |
| 395 | Latka Taxi 175 LLC |
| 396 | Latka Taxi 175 LLC |
| 397 | Latka Taxi 130 LLC |
| 398 | Latka Taxi 128 LLC |
| 399 | Latka Taxi 130 LLC |
| 400 | Latka Taxi 128 LLC |
| 401 | Latka Taxi 182 LLC |
| 402 | Latka Taxi 182 LLC |
| 403 | Latka Taxi 193 LLC |
| 404 | Latka Taxi 193 LLC |
| 405 | Latka Taxi 189 LLC |
| 406 | Latka Taxi 189 LLC |
| 407 | Latka Taxi 186 LLC |
| 408 | Latka Taxi 186 LLC |
| 409 | Latka Taxi 177 LLC |
| 410 | Latka Taxi 192 LLC |
| 411 | Latka Taxi 192 LLC |
| 412 | Latka Taxi 178 LLC |
| 413 | Latka Taxi 188 LLC |
| 414 | Latka Taxi 188 LLC |
| 415 | Latka Taxi 179 LLC |
| 416 | Latka Taxi 176 LLC |
| 417 | Latka Taxi 176 LLC |
| 418 | Latka Taxi 131 LLC |
| 419 | Latka Taxi 110 LLC |
| 420 | Latka Taxi 131 LLC |
| 421 | Latka Taxi 110 LLC |
| 422 | Latka Taxi 166 LLC |
| 423 | Latka Taxi 166 LLC |
| 424 | Latka Taxi 166 LLC |
| 425 | Latka Taxi 199 LLC |
| 426 | Latka Taxi 197 LLC |
ACP – MIDDLE MARKET PROMISSORY NOTE – 10/2/2516
| 427 | Latka Taxi 197 LLC |
|---|---|
| 428 | Latka Taxi 196 LLC |
| 429 | Latka Taxi 196 LLC |
| 430 | Latka Taxi 198 LLC |
| 431 | Latka Taxi 198 LLC |
| 432 | Latka Taxi 136 LLC |
| 433 | Latka Taxi 169 LLC |
| 434 | Latka Taxi 169 LLC |
| 435 | Latka Taxi 194 LLC |
| 436 | Latka Taxi 194 LLC |
| 437 | Latka Taxi 194 LLC |
| 438 | Latka Taxi 180 LLC |
| 439 | Latka Taxi 180 LLC |
| 440 | Latka Taxi 180 LLC |
| 441 | Latka Taxi 190 LLC |
| 442 | Latka Taxi 190 LLC |
| 443 | Latka Taxi 116 LLC |
| 444 | Latka Taxi 116 LLC |
| 445 | Latka Taxi 117 LLC |
| 446 | Latka Taxi 137 LLC |
| 447 | Latka Taxi 117 LLC |
| 448 | Latka Taxi 163 LLC |
| 449 | Latka Taxi 184 LLC |
| 450 | Latka Taxi 184 LLC |
| 451 | Latka Taxi 185 LLC |
| 452 | Latka Taxi 185 LLC |
| 453 | Latka Taxi 185 LLC |
| 454 | Latka Taxi 119 LLC |
| 455 | Latka Taxi 119 LLC |
| 456 | Latka Taxi 137 LLC |
| 457 | Latka Taxi 120 LLC |
| 458 | Latka Taxi 123 LLC |
| 459 | Latka Taxi 195 LLC |
| 460 | Latka Taxi 195 LLC |
| 461 | Latka Taxi 195 LLC |
| 462 | Latka Taxi 127 LLC |
| 463 | Latka Taxi 127 LLC |
| 464 | Latka Taxi 142 LLC |
| 465 | Latka Taxi 142 LLC |
| 466 | Simka Taxi 107 LLC |
| 467 | Simka Taxi 108 LLC |
| 468 | Simka Taxi 108 LLC |
| 469 | Simka Taxi 109 LLC |
ACP – MIDDLE MARKET PROMISSORY NOTE – 10/2/2517
| 470 | Simka Taxi 109 LLC |
|---|---|
| 471 | Simka Taxi 110 LLC |
| 472 | Simka Taxi 110 LLC |
| 473 | Simka Taxi 111 LLC |
| 474 | Simka Taxi 111 LLC |
| 475 | Simka Taxi 112 LLC |
| 476 | Simka Taxi 112 LLC |
| 477 | Simka Taxi 113 LLC |
| 478 | Simka Taxi 113 LLC |
| 479 | Simka Taxi 114 LLC |
| 480 | Simka Taxi 114 LLC |
| 481 | Simka Taxi 115 LLC |
| 482 | Simka Taxi 115 LLC |
| 483 | Simka Taxi 116 LLC |
| 484 | Simka Taxi 116 LLC |
| 485 | Simka Taxi 117 LLC |
| 486 | Simka Taxi 117 LLC |
| 487 | Simka Taxi 118 LLC |
| 488 | Simka Taxi 118 LLC |
| 489 | Simka Taxi 119 LLC |
| 490 | Simka Taxi 119 LLC |
| 491 | Simka Taxi 120 LLC |
| 492 | Simka Taxi 120 LLC |
| 493 | Simka Taxi 121 LLC |
| 494 | Simka Taxi 121 LLC |
| 495 | Latka Taxi 120 LLC |
| 496 | Latka Taxi 138 LLC |
| 497 | Latka Taxi 199 LLC |
| 498 | Latka Taxi 139 LLC |
| 499 | Latka Taxi 139 LLC |
| 500 | Latka Taxi 140 LLC |
| 501 | Latka Taxi 140 LLC |
| 502 | Latka Taxi 141 LLC |
| 503 | Latka Taxi 141 LLC |
| 504 | Simka Taxi 100 LLC |
| 505 | Simka Taxi 100 LLC |
| 506 | Simka Taxi 101 LLC |
| 507 | Simka Taxi 101 LLC |
| 508 | Simka Taxi 102 LLC |
| 509 | Simka Taxi 102 LLC |
| 510 | Simka Taxi 103 LLC |
| 511 | Simka Taxi 103 LLC |
| 512 | Simka Taxi 104 LLC |
ACP – MIDDLE MARKET PROMISSORY NOTE – 10/2/2518
| 513 | Simka Taxi 104 LLC |
|---|---|
| 514 | Simka Taxi 105 LLC |
| 515 | Simka Taxi 105 LLC |
| 516 | Simka Taxi 106 LLC |
| 517 | Simka Taxi 106 LLC |
| 518 | Simka Taxi 107 LLC |
ACP – MIDDLE MARKET PROMISSORY NOTE – 10/2/2519
EX-10.10
Certain confidential information contained in this document, marked by “[***]”, has been omitted pursuant to Item 601(b)(10)(iv) of Regulation S-K because it is both (i) not material and (ii) is the type of information that the Company treats as private or confidential. Certain schedules (or similar attachments) also marked by “[***]” have been omitted pursuant to Item 601(a)(5) of Regulation S-K.
AUXILIOR CAPITAL PARTNERS, INC.
PROMISSORY NOTE NO. 003
$4,860,000 December 31, 2025
For value received, the receipt and sufficiency of which are hereby acknowledged, those certain wholly owned subsidiaries (each, an “SPV”) of DePalma Acquisition II LLC listed on Schedule B attached hereto (together with its successors and permitted assigns, “Borrower”), hereby promises to pay to the order of AUXILIOR CAPITAL PARTNERS, INC. (together with its successors, assigns and Participants, “Lender”), four million eight hundred sixty thousand and 00/100 DOLLARS ($4,860,000), or, if less, the aggregate unpaid principal amount of the advances then having been made under the Agreement (as hereinafter defined), together with interest on the unpaid balance of such amount from the date of this Promissory Note at the Loan Rate or, under the circumstances contemplated by the Agreement, at the Default Rate or the Adjusted Rate. Interest shall be computed on the basis of a 30-day month/360-day year.
This Promissory Note is one of the Promissory Notes issued under the Loan and Security Agreement dated as December 31, 2025, between Borrower and Lender (said agreement, as the same shall be amended, restated or supplemented from time to time, being herein called the “Agreement”), to which reference is made for a statement of all of the terms and conditions of the Loan evidenced hereby. Capitalized terms not defined in this Promissory Note shall have the respective meanings assigned to them in the Agreement. This Promissory Note is secured by the Agreement, the other Loan Documents and the Collateral set forth on Schedule A, and is entitled to the benefit of the rights and security provided thereby. Borrower’s obligations are joint and several.
Principal and interest due hereunder shall be payable as follows:
Interest only shall be payable for the period from the date of execution of this Note to the Stated Maturity Date; payable on Payment Date, at the Loan Rate.
Thirty-six (36) consecutive monthly installments of principal and interest, each in the amount of $153,455, payable, in arrears, with the first such payment due on February 1, 2026 and subsequent payments being due and payable on the first (1st) day of each calendar month thereafter (each a “Payment Date”).
If any payment due hereunder is not received within five (5) days of its due date, Borrower shall pay a late charge equal to five percent (5.00%) of the amount in arrears.
As used herein, "Interest Period" means the period commencing on the date hereof and ending on the last day of the calendar month next succeeding the date hereof, and each subsequent calendar month thereafter; and “Loan Rate” shall mean eight and one-half percent (8.5%) per annum.
All payments shall be made to such account or address as Lender shall specify from time to time in writing. Unless payable earlier as provided in the Agreement, the outstanding principal and interest under this Promissory Note shall be immediately due and payable on January 1, 2029 (the “Stated Maturity Date”).
Borrower may prepay all (but not less than all) of the outstanding principal balance of this Promissory Note on a scheduled Payment Date occurring after one (1) year from the date hereof upon 30 days prior written notice from Borrower to Lender, provided that any such prepayment shall be made together with (a) all accrued interest and other charges and amounts owing hereunder through the date of prepayment, and (b) a prepayment fee equal to one percent (1%) of the amount prepaid multiplied by the number of years or fraction thereof for the then remaining term; provided, however, that, if any prepayment of this Promissory Note is made following an Event of Default, by reason of acceleration or otherwise, the prepayment charge shall be calculated based upon the full term. Notwithstanding the foregoing, Borrower may make partial prepayments of this Promissory Note not more than once per year in an amount not to exceed ten percent (10%) of the outstanding principal balance of the Promissory Note. In the event Borrower and Lender into a secured revolving credit facility any prepayment fee shall be waived.
Lender may require that any partial prepayments be made on the date the monthly installments are due under this
IF = IF 1 = 1 1 01 * IF COMPARE SECTION 1 = "1" 1 = 1 1 011 = 1 DOCPROPERTY "CUS_DocIDChunk0" US_ACTIVE-210050368.v2-ADIMITRA-1/5/2026 5:24 PM US_ACTIVE-210050368.v2-ADIMITRA-1/5/2026 5:24 PM
Promissory Note. Notwithstanding the foregoing, upon receipt and application of the amounts so prepaid and, if applicable, Lender shall re-calculate the principal balance then remaining, and any correlative adjustments to the payments provided for this Promissory Note (which adjustments shall be deemed final, absent manifest error) within five (5) Business Days’ after written notice thereof is provided by Lender to Borrower.
Payment Authorization: On the date of execution of this Promissory Note, Lender is hereby irrevocably authorized and directed to pay the Total Invoice Cost specified above as follows:
| Company Name | Wire Instructions | Amount |
|---|---|---|
| DePalma Acquisition II LLC | Bank Name: [***]_________<br><br>ABA #: [***]_________<br><br>Account #: [***]_________<br><br>Account #: ___________________<br><br>Name: DePalma Acquisition II LLC | $4,860,000 |
To the fullest extent permitted by Applicable Law, Borrower waives: (a) presentment, demand and protest, and notice of presentment, dishonor, intent to accelerate, acceleration, protest, default, nonpayment, maturity, release, compromise, settlement, extension or renewal of any or all of the Obligations, this Promissory Note or the other Loan Documents; and (b) all rights to notice and a hearing prior to Lender’s taking possession or control of, or to Lender’s replevy, attachment or levy upon, the Collateral or any bond or security that might be required by any court prior to allowing Lender to exercise any of its remedies.
Borrower acknowledges that this Promissory Note is executed as part of a commercial transaction and that the proceeds of this Promissory Note will not be used for any personal or consumer purpose.
In the event of the declaration by Lender of a Default under the Agreement, then this Promissory Note shall be in default and the balance of the principal sum then due hereunder, together with all accrued interest thereon, immediately shall become due and payable without further notice, such further notice being expressly waived, and Borrower shall be liable to the holder hereof for reasonable attorneys’ fees and costs of suit.
The remedies of Lender as provided herein and in the Agreement shall be cumulative and concurrent and may be pursued singly, successively or together, at the sole discretion of Lender, and may be exercised as often as occasion therefor shall occur; and the failure to exercise any such right or remedy shall in no event be construed as a waiver or release thereof.
It is the intention of the parties hereto to comply with the applicable usury laws. Accordingly, it is agreed that, notwithstanding any provisions to the contrary in this Promissory Note or the Agreement, in no event shall this Promissory Note or the Agreement require the payment or permit the collection of interest in excess of the maximum amount permitted by Applicable Law. If any such excess interest is contracted for, charged or received under this Promissory Note or the Agreement, or in the event that all of the principal balance shall be prepaid, so that under any of such circumstances the amount of interest contracted for, charged or received under this Promissory Note or the Agreement on the principal balance shall exceed the maximum amount of interest permitted by Applicable Law, then in such event: (a) the provisions of this paragraph shall govern and control, (b) neither Borrower nor any other person or entity now or hereafter liable for the payment hereof shall be obligated to pay the amount of such interest to the extent that it is in excess of the maximum amount of interest permitted by Applicable Law, (c) any such excess which may have been collected shall either be applied as a credit against the then unpaid principal balance or refunded to Borrower, at the option of Borrower (provided that upon the occurrence and continuance of any Default, such election shall be made by Lender), and (d) the effective rate of interest shall be automatically reduced to the maximum lawful contract rate allowed under Applicable Law as now or hereafter construed by the courts having jurisdiction thereof. It is further agreed that, without limitation of the foregoing, all calculations of the rate of interest contracted for, charged or received under this Promissory Note or the Agreement which are made for the purpose of determining whether such rate exceeds the maxi- mum lawful contract rate, shall be made, to the extent
ACP – MIDDLE MARKET PROMISSORY NOTE – 10/2/252
permitted by Applicable Law, by amortizing, prorating, allocating and spreading in equal parts during the period of the full stated term of the Indebtedness evidenced hereby, all interest at any time contracted for, charged or received from Borrower or otherwise by Lender in connection with such Obligations; provided, however, that if any applicable state law is amended or the law of the United States of America preempts any applicable state law, so that it becomes lawful for Lender to receive a greater interest per annum rate than is presently allowed by law, Borrower agrees that, on the effective date of such amendment or preemption, as the case may be, the lawful maximum hereunder shall be increased to the maximum interest rate per annum allowed by the amended state law or the law of the United States of America (but not in excess of the Loan Rate (or, if applicable, the Default Rate).
BORROWER HEREBY WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO WHICH BORROWER AND LENDER MAY BE PARTIES ARISING OUT OF OR IN ANY WAY PERTAINING TO THIS PROMISSORY NOTE. BORROWER AUTHORIZES LENDER TO FILE THIS PROVISION WITH THE CLERK OR JUDGE OF ANY COURT HEARING SUCH CLAIM. THIS WAIVER IS KNOWINGLY, WILLINGLY AND VOLUNTARILY MADE BY BORROWER AND BORROWER HEREBY ACKNOWLEDGES THAT NO REPRESENTATIONS OF FACT OR OPINION HAVE BEEN MADE BY ANY INDIVIDUAL TO INDUCE THIS WAIVER OF TRIAL BY JURY OR IN ANY WAY TO MODIFY OR NULLIFY ITS EFFECT. BORROWER FURTHER ACKNOWLEDGES THAT IT HAS BEEN REPRESENTED IN THE SIGNING OF THIS PROMISSORY NOTE AND IN THE MAKING OF THIS WAIVER BY LEGAL COUNSEL, SELECTED OF ITS OWN FREE WILL, AND THAT IT HAS HAD THE OPPORTUNITY TO DISCUSS THIS WAIVER WITH COUNSEL.
BORROWER AGREES THAT THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO THE CONFLICT OF LAWS PRINCIPLES OF SUCH STATE), INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE. Venue for any action hereunder or related hereto may be in any state or Federal court of competent jurisdiction in the State of New York, and Borrower submits to the jurisdiction of such courts.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
ACP – MIDDLE MARKET PROMISSORY NOTE – 10/2/253
IN WITNESS WHEREOF, this Promissory Note has been duly executed, under seal, as of the date first written
above.
DEPALMA ACQUISITION II LLC
On behalf of those certain wholly owned subsidiaries (each, an “SPV”) of DePalma Acquisition II LLC listed on Schedule B attached hereto
By: /s/ Michael Hutchby
Name: Michael Hutchby
Title: Chief Financial Officer
ACP – MIDDLE MARKET PROMISSORY NOTE – 10/2/254
ACP – MIDDLE MARKET PROMISSORY NOTE – 10/2/255
SCHEDULE A
COLLATERAL
[***]
ACP – MIDDLE MARKET PROMISSORY NOTE – 10/2/256
SCHEDULE B
| LLC | |
|---|---|
| 1 | Latka Taxi 57 LLC |
| 2 | Latka Taxi 71 LLC |
| 3 | Latka Taxi 72 LLC |
| 4 | Latka Taxi 76 LLC |
| 5 | Latka Taxi 33 LLC |
| 6 | Latka Taxi 34 LLC |
| 7 | Latka Taxi 36 LLC |
| 8 | Latka Taxi 37 LLC |
| 9 | Latka Taxi 39 LLC |
| 10 | Latka Taxi 47 LLC |
| 11 | Latka Taxi 47 LLC |
| 12 | Latka Taxi 48 LLC |
| 13 | Latka Taxi 48 LLC |
| 14 | Latka Taxi 49 LLC |
| 15 | Latka Taxi 49 LLC |
| 16 | Latka Taxi 50 LLC |
| 17 | Latka Taxi 50 LLC |
| 18 | Latka Taxi 51 LLC |
| 19 | Latka Taxi 51 LLC |
| 20 | Latka Taxi 52 LLC |
| 21 | Latka Taxi 52 LLC |
| 22 | Latka Taxi 53 LLC |
| 23 | Latka Taxi 53 LLC |
| 24 | Latka Taxi 54 LLC |
| 25 | Latka Taxi 54 LLC |
| 26 | Latka Taxi 55 LLC |
| 27 | Latka Taxi 56 LLC |
| 28 | Latka Taxi 56 LLC |
| 29 | Latka Taxi 55 LLC |
| 30 | Latka Taxi 57 LLC |
| 31 | Latka Taxi 58 LLC |
| 32 | Latka Taxi 61 LLC |
| 33 | Latka Taxi 61 LLC |
| 34 | Latka Taxi 62 LLC |
| 35 | Latka Taxi 62 LLC |
| 36 | Latka Taxi 63 LLC |
| 37 | Latka Taxi 63 LLC |
| 38 | Latka Taxi 64 LLC |
| 39 | Latka Taxi 64 LLC |
ACP – MIDDLE MARKET PROMISSORY NOTE – 10/2/257
| 40 | Latka Taxi 65 LLC |
|---|---|
| 41 | Latka Taxi 65 LLC |
| 42 | Latka Taxi 66 LLC |
| 43 | Latka Taxi 66 LLC |
| 44 | Latka Taxi 67 LLC |
| 45 | Latka Taxi 67 LLC |
| 46 | Latka Taxi 68 LLC |
| 47 | Latka Taxi 68 LLC |
| 48 | Latka Taxi 69 LLC |
| 49 | Latka Taxi 69 LLC |
| 50 | Latka Taxi 69 LLC |
| 51 | Latka Taxi 70 LLC |
| 52 | Latka Taxi 70 LLC |
| 53 | Latka Taxi 71 LLC |
| 54 | Latka Taxi 72 LLC |
| 55 | Latka Taxi 73 LLC |
| 56 | Latka Taxi 73 LLC |
| 57 | Latka Taxi 40 LLC |
| 58 | Latka Taxi 40 LLC |
| 59 | Latka Taxi 41 LLC |
| 60 | Latka Taxi 41 LLC |
| 61 | Latka Taxi 42 LLC |
| 62 | Latka Taxi 42 LLC |
| 63 | Latka Taxi 43 LLC |
| 64 | Latka Taxi 43 LLC |
| 65 | Latka Taxi 44 LLC |
| 66 | Latka Taxi 44 LLC |
| 67 | Latka Taxi 45 LLC |
| 68 | Latka Taxi 45 LLC |
| 69 | Latka Taxi 46 LLC |
| 70 | Latka Taxi 46 LLC |
| 71 | Latka Taxi 74 LLC |
| 72 | Latka Taxi 74 LLC |
| 73 | Latka Taxi 75 LLC |
| 74 | Latka Taxi 77 LLC |
| 75 | Latka Taxi 77 LLC |
| 76 | Latka Taxi 84 LLC |
| 77 | Latka Taxi 84 LLC |
| 78 | Latka Taxi 85 LLC |
| 79 | Latka Taxi 85 LLC |
| 80 | Latka Taxi 86 LLC |
| 81 | Latka Taxi 86 LLC |
| 82 | Latka Taxi 87 LLC |
ACP – MIDDLE MARKET PROMISSORY NOTE – 10/2/258
| 83 | Latka Taxi 87 LLC |
|---|---|
| 84 | Latka Taxi 88 LLC |
| 85 | Latka Taxi 88 LLC |
| 86 | Latka Taxi 89 LLC |
| 87 | Latka Taxi 89 LLC |
| 88 | Latka Taxi 90 LLC |
| 89 | Latka Taxi 90 LLC |
| 90 | Latka Taxi 91 LLC |
| 91 | Latka Taxi 91 LLC |
| 92 | Latka Taxi 92 LLC |
| 93 | Latka Taxi 92 LLC |
| 94 | Latka Taxi 93 LLC |
| 95 | Latka Taxi 93 LLC |
| 96 | Latka Taxi 94 LLC |
| 97 | Latka Taxi 94 LLC |
| 98 | Latka Taxi 95 LLC |
| 99 | Latka Taxi 95 LLC |
| 100 | Latka Taxi 96 LLC |
| 101 | Latka Taxi 96 LLC |
| 102 | Latka Taxi 97 LLC |
| 103 | Latka Taxi 97 LLC |
| 104 | Latka Taxi 98 LLC |
| 105 | Latka Taxi 98 LLC |
| 106 | Latka Taxi 99 LLC |
| 107 | Latka Taxi 99 LLC |
| 108 | Latka Taxi 78 LLC |
| 109 | Latka Taxi 78 LLC |
| 110 | Latka Taxi 79 LLC |
| 111 | Latka Taxi 79 LLC |
| 112 | Latka Taxi 80 LLC |
| 113 | Latka Taxi 81 LLC |
| 114 | Latka Taxi 81 LLC |
| 115 | Latka Taxi 82 LLC |
| 116 | Latka Taxi 83 LLC |
| 117 | Latka Taxi 75 LLC |
| 118 | Latka Taxi 82 LLC |
| 119 | Latka Taxi 83 LLC |
| 120 | Latka Taxi 100 LLC |
| 121 | Latka Taxi 100 LLC |
| 122 | Latka Taxi 101 LLC |
| 123 | Latka Taxi 101 LLC |
| 124 | Latka Taxi 102 LLC |
| 125 | Latka Taxi 102 LLC |
ACP – MIDDLE MARKET PROMISSORY NOTE – 10/2/259
| 126 | Latka Taxi 103 LLC |
|---|---|
| 127 | Latka Taxi 103 LLC |
| 128 | Latka Taxi 104 LLC |
| 129 | Latka Taxi 104 LLC |
| 130 | Latka Taxi 105 LLC |
| 131 | Latka Taxi 105 LLC |
| 132 | Latka Taxi 80 LLC |
| 133 | Latka Taxi 106 LLC |
| 134 | Latka Taxi 106 LLC |
| 135 | Latka Taxi 107 LLC |
| 136 | Latka Taxi 107 LLC |
| 137 | Latka Taxi 108 LLC |
| 138 | Latka Taxi 108 LLC |
| 139 | Latka Taxi 109 LLC |
| 140 | Latka Taxi 109 LLC |
| 141 | Latka Taxi 11 LLC |
| 142 | Latka Taxi 11 LLC |
| 143 | Latka Taxi 111 LLC |
| 144 | Latka Taxi 111 LLC |
| 145 | Latka Taxi 112 LLC |
| 146 | Latka Taxi 113 LLC |
| 147 | Latka Taxi 113 LLC |
| 148 | Latka Taxi 114 LLC |
| 149 | Latka Taxi 114 LLC |
| 150 | Latka Taxi 115 LLC |
| 151 | Latka Taxi 115 LLC |
| 152 | Latka Taxi 118 LLC |
| 153 | Latka Taxi 118 LLC |
| 154 | Latka Taxi 12 LLC |
| 155 | Latka Taxi 12 LLC |
| 156 | Latka Taxi 121 LLC |
| 157 | Latka Taxi 121 LLC |
| 158 | Latka Taxi 122 LLC |
| 159 | Latka Taxi 122 LLC |
| 160 | Latka Taxi 123 LLC |
| 161 | Latka Taxi 124 LLC |
| 162 | Latka Taxi 124 LLC |
| 163 | Latka Taxi 125 LLC |
| 164 | Latka Taxi 126 LLC |
| 165 | Latka Taxi 126 LLC |
| 166 | Latka Taxi 13 LLC |
| 167 | Latka Taxi 13 LLC |
| 168 | Latka Taxi 132 LLC |
ACP – MIDDLE MARKET PROMISSORY NOTE – 10/2/2510
| 169 | Latka Taxi 132 LLC |
|---|---|
| 170 | Latka Taxi 133 LLC |
| 171 | Latka Taxi 133 LLC |
| 172 | Latka Taxi 134 LLC |
| 173 | Latka Taxi 134 LLC |
| 174 | Latka Taxi 135 LLC |
| 175 | Latka Taxi 135 LLC |
| 176 | Latka Taxi 136 LLC |
| 177 | Latka Taxi 138 LLC |
| 178 | Latka Taxi 14 LLC |
| 179 | Latka Taxi 14 LLC |
| 180 | Latka Taxi 143 LLC |
| 181 | Latka Taxi 144 LLC |
| 182 | Latka Taxi 144 LLC |
| 183 | Latka Taxi 145 LLC |
| 184 | Latka Taxi 145 LLC |
| 185 | Latka Taxi 146 LLC |
| 186 | Latka Taxi 146 LLC |
| 187 | Latka Taxi 146 LLC |
| 188 | Latka Taxi 147 LLC |
| 189 | Latka Taxi 147 LLC |
| 190 | Latka Taxi 148 LLC |
| 191 | Latka Taxi 148 LLC |
| 192 | Latka Taxi 149 LLC |
| 193 | Latka Taxi 149 LLC |
| 194 | Latka Taxi 15 LLC |
| 195 | Latka Taxi 15 LLC |
| 196 | Latka Taxi 150 LLC |
| 197 | Latka Taxi 150 LLC |
| 198 | Latka Taxi 151 LLC |
| 199 | Latka Taxi 151 LLC |
| 200 | Latka Taxi 112 LLC |
| 201 | Latka Taxi 125 LLC |
| 202 | Latka Taxi 143 LLC |
| 203 | Latka Taxi 154 LLC |
| 204 | Latka Taxi 154 LLC |
| 205 | Latka Taxi 155 LLC |
| 206 | Latka Taxi 155 LLC |
| 207 | Latka Taxi 158 LLC |
| 208 | Latka Taxi 158 LLC |
| 209 | Latka Taxi 159 LLC |
| 210 | Latka Taxi 159 LLC |
| 211 | Latka Taxi 16 LLC |
ACP – MIDDLE MARKET PROMISSORY NOTE – 10/2/2511
| 212 | Latka Taxi 16 LLC |
|---|---|
| 213 | Latka Taxi 161 LLC |
| 214 | Latka Taxi 161 LLC |
| 215 | Latka Taxi 163 LLC |
| 216 | Latka Taxi 165 LLC |
| 217 | Latka Taxi 165 LLC |
| 218 | Latka Taxi 165 LLC |
| 219 | Latka Taxi 167 LLC |
| 220 | Latka Taxi 167 LLC |
| 221 | Latka Taxi 167 LLC |
| 222 | Latka Taxi 168 LLC |
| 223 | Latka Taxi 168 LLC |
| 224 | Latka Taxi 17 LLC |
| 225 | Latka Taxi 17 LLC |
| 226 | Latka Taxi 171 LLC |
| 227 | Latka Taxi 171 LLC |
| 228 | Latka Taxi 172 LLC |
| 229 | Latka Taxi 172 LLC |
| 230 | Latka Taxi 164 LLC |
| 231 | Latka Taxi 174 LLC |
| 232 | Latka Taxi 174 LLC |
| 233 | Latka Taxi 19 LLC |
| 234 | Latka Taxi 19 LLC |
| 235 | Latka Taxi 20 LLC |
| 236 | Latka Taxi 20 LLC |
| 237 | Latka Taxi 24 LLC |
| 238 | Latka Taxi 24 LLC |
| 239 | Latka Taxi 26 LLC |
| 240 | Latka Taxi 26 LLC |
| 241 | Latka Taxi 27 LLC |
| 242 | Latka Taxi 27 LLC |
| 243 | Latka Taxi 28 LLC |
| 244 | Latka Taxi 28 LLC |
| 245 | Latka Taxi 29 LLC |
| 246 | Latka Taxi 29 LLC |
| 247 | Latka Taxi 31 LLC |
| 248 | Latka Taxi 31 LLC |
| 249 | Latka Taxi 32 LLC |
| 250 | Latka Taxi 32 LLC |
| 251 | Latka Taxi 33 LLC |
| 252 | Latka Taxi 34 LLC |
| 253 | Latka Taxi 35 LLC |
| 254 | Latka Taxi 35 LLC |
ACP – MIDDLE MARKET PROMISSORY NOTE – 10/2/2512
| 255 | Latka Taxi 36 LLC |
|---|---|
| 256 | Latka Taxi 37 LLC |
| 257 | Latka Taxi 38 LLC |
| 258 | Latka Taxi 38 LLC |
| 259 | Latka Taxi 39 LLC |
| 260 | Latka Taxi 58 LLC |
| 261 | Latka Taxi 76 LLC |
| 262 | Wheeler Taxi 11 LLC |
| 263 | Wheeler Taxi 11 LLC |
| 264 | Wheeler Taxi 12 LLC |
| 265 | Wheeler Taxi 12 LLC |
| 266 | Wheeler Taxi 13 LLC |
| 267 | Wheeler Taxi 13 LLC |
| 268 | Wheeler Taxi 14 LLC |
| 269 | Wheeler Taxi 14 LLC |
| 270 | Wheeler Taxi 15 LLC |
| 271 | Wheeler Taxi 15 LLC |
| 272 | Wheeler Taxi 16 LLC |
| 273 | Wheeler Taxi 16 LLC |
| 274 | Wheeler Taxi 18 LLC |
| 275 | Wheeler Taxi 18 LLC |
| 276 | Wheeler Taxi 19 LLC |
| 277 | Wheeler Taxi 19 LLC |
| 278 | Wheeler Taxi 2 LLC |
| 279 | Wheeler Taxi 2 LLC |
| 280 | Wheeler Taxi 20 LLC |
| 281 | Wheeler Taxi 20 LLC |
| 282 | Wheeler Taxi 21 LLC |
| 283 | Wheeler Taxi 21 LLC |
| 284 | Wheeler Taxi 25 LLC |
| 285 | Wheeler Taxi 25 LLC |
| 286 | Wheeler Taxi 26 LLC |
| 287 | Wheeler Taxi 26 LLC |
| 288 | Wheeler Taxi 27 LLC |
| 289 | Wheeler Taxi 27 LLC |
| 290 | Wheeler Taxi 28 LLC |
| 291 | Wheeler Taxi 28 LLC |
| 292 | Wheeler Taxi 29 LLC |
| 293 | Wheeler Taxi 29 LLC |
| 294 | Wheeler Taxi 3 LLC |
| 295 | Wheeler Taxi 3 LLC |
| 296 | Wheeler Taxi 30 LLC |
| 297 | Wheeler Taxi 30 LLC |
ACP – MIDDLE MARKET PROMISSORY NOTE – 10/2/2513
| 298 | Wheeler Taxi 31 LLC |
|---|---|
| 299 | Wheeler Taxi 31 LLC |
| 300 | Wheeler Taxi 32 LLC |
| 301 | Wheeler Taxi 32 LLC |
| 302 | Wheeler Taxi 33 LLC |
| 303 | Wheeler Taxi 33 LLC |
| 304 | Wheeler Taxi 34 LLC |
| 305 | Wheeler Taxi 34 LLC |
| 306 | Wheeler Taxi 35 LLC |
| 307 | Wheeler Taxi 35 LLC |
| 308 | Wheeler Taxi 36 LLC |
| 309 | Wheeler Taxi 36 LLC |
| 310 | Wheeler Taxi 37 LLC |
| 311 | Wheeler Taxi 37 LLC |
| 312 | Wheeler Taxi 38 LLC |
| 313 | Wheeler Taxi 38 LLC |
| 314 | Wheeler Taxi 39 LLC |
| 315 | Wheeler Taxi 4 LLC |
| 316 | Wheeler Taxi 4 LLC |
| 317 | Wheeler Taxi 40 LLC |
| 318 | Wheeler Taxi 40 LLC |
| 319 | Wheeler Taxi 41 LLC |
| 320 | Wheeler Taxi 41 LLC |
| 321 | Wheeler Taxi 42 LLC |
| 322 | Wheeler Taxi 39 LLC |
| 323 | Wheeler Taxi 42 LLC |
| 324 | Wheeler Taxi 43 LLC |
| 325 | Wheeler Taxi 43 LLC |
| 326 | Wheeler Taxi 44 LLC |
| 327 | Wheeler Taxi 45 LLC |
| 328 | Wheeler Taxi 45 LLC |
| 329 | Wheeler Taxi 46 LLC |
| 330 | Wheeler Taxi 46 LLC |
| 331 | Wheeler Taxi 47 LLC |
| 332 | Wheeler Taxi 47 LLC |
| 333 | Wheeler Taxi 48 LLC |
| 334 | Wheeler Taxi 48 LLC |
| 335 | Wheeler Taxi 49 LLC |
| 336 | Wheeler Taxi 49 LLC |
| 337 | Wheeler Taxi 5 LLC |
| 338 | Wheeler Taxi 5 LLC |
| 339 | Wheeler Taxi 50 LLC |
| 340 | Wheeler Taxi 50 LLC |
ACP – MIDDLE MARKET PROMISSORY NOTE – 10/2/2514
| 341 | Wheeler Taxi 51 LLC |
|---|---|
| 342 | Wheeler Taxi 51 LLC |
| 343 | Wheeler Taxi 52 LLC |
| 344 | Wheeler Taxi 52 LLC |
| 345 | Wheeler Taxi 53 LLC |
| 346 | Wheeler Taxi 53 LLC |
| 347 | Wheeler Taxi 54 LLC |
| 348 | Wheeler Taxi 54 LLC |
| 349 | Wheeler Taxi 55 LLC |
| 350 | Wheeler Taxi 55 LLC |
| 351 | Wheeler Taxi 57 LLC |
| 352 | Wheeler Taxi 57 LLC |
| 353 | Wheeler Taxi 58 LLC |
| 354 | Wheeler Taxi 58 LLC |
| 355 | Wheeler Taxi 59 LLC |
| 356 | Wheeler Taxi 59 LLC |
| 357 | Wheeler Taxi 6 LLC |
| 358 | Wheeler Taxi 60 LLC |
| 359 | Wheeler Taxi 60 LLC |
| 360 | Latka Taxi 156 LLC |
| 361 | Latka Taxi 156 LLC |
| 362 | Latka Taxi 160 LLC |
| 363 | Latka Taxi 160 LLC |
| 364 | Wheeler Taxi 9 LLC |
| 365 | Wheeler Taxi 9 LLC |
| 366 | Wheeler Taxi 8 LLC |
| 367 | Wheeler Taxi 8 LLC |
| 368 | Wheeler Taxi 7 LLC |
| 369 | Wheeler Taxi 7 LLC |
| 370 | Latka Taxi 170 LLC |
| 371 | Latka Taxi 170 LLC |
| 372 | Latka Taxi 173 LLC |
| 373 | Latka Taxi 173 LLC |
| 374 | Latka Taxi 183 LLC |
| 375 | Latka Taxi 183 LLC |
| 376 | Latka Taxi 200 LLC |
| 377 | Latka Taxi 200 LLC |
| 378 | Latka Taxi 187 LLC |
| 379 | Latka Taxi 187 LLC |
| 380 | Latka Taxi 177 LLC |
| 381 | Latka Taxi 179 LLC |
| 382 | Latka Taxi 157 LLC |
| 383 | Latka Taxi 157 LLC |
ACP – MIDDLE MARKET PROMISSORY NOTE – 10/2/2515
| 384 | Latka Taxi 153 LLC |
|---|---|
| 385 | Latka Taxi 153 LLC |
| 386 | Latka Taxi 181 LLC |
| 387 | Latka Taxi 181 LLC |
| 388 | Latka Taxi 129 LLC |
| 389 | Latka Taxi 129 LLC |
| 390 | Latka Taxi 162 LLC |
| 391 | Latka Taxi 162 LLC |
| 392 | Latka Taxi 178 LLC |
| 393 | Latka Taxi 191 LLC |
| 394 | Latka Taxi 191 LLC |
| 395 | Latka Taxi 175 LLC |
| 396 | Latka Taxi 175 LLC |
| 397 | Latka Taxi 130 LLC |
| 398 | Latka Taxi 128 LLC |
| 399 | Latka Taxi 130 LLC |
| 400 | Latka Taxi 128 LLC |
| 401 | Latka Taxi 182 LLC |
| 402 | Latka Taxi 182 LLC |
| 403 | Latka Taxi 193 LLC |
| 404 | Latka Taxi 193 LLC |
| 405 | Latka Taxi 189 LLC |
| 406 | Latka Taxi 189 LLC |
| 407 | Latka Taxi 186 LLC |
| 408 | Latka Taxi 186 LLC |
| 409 | Latka Taxi 177 LLC |
| 410 | Latka Taxi 192 LLC |
| 411 | Latka Taxi 192 LLC |
| 412 | Latka Taxi 178 LLC |
| 413 | Latka Taxi 188 LLC |
| 414 | Latka Taxi 188 LLC |
| 415 | Latka Taxi 179 LLC |
| 416 | Latka Taxi 176 LLC |
| 417 | Latka Taxi 176 LLC |
| 418 | Latka Taxi 131 LLC |
| 419 | Latka Taxi 110 LLC |
| 420 | Latka Taxi 131 LLC |
| 421 | Latka Taxi 110 LLC |
| 422 | Latka Taxi 166 LLC |
| 423 | Latka Taxi 166 LLC |
| 424 | Latka Taxi 166 LLC |
| 425 | Latka Taxi 199 LLC |
| 426 | Latka Taxi 197 LLC |
ACP – MIDDLE MARKET PROMISSORY NOTE – 10/2/2516
| 427 | Latka Taxi 197 LLC |
|---|---|
| 428 | Latka Taxi 196 LLC |
| 429 | Latka Taxi 196 LLC |
| 430 | Latka Taxi 198 LLC |
| 431 | Latka Taxi 198 LLC |
| 432 | Latka Taxi 136 LLC |
| 433 | Latka Taxi 169 LLC |
| 434 | Latka Taxi 169 LLC |
| 435 | Latka Taxi 194 LLC |
| 436 | Latka Taxi 194 LLC |
| 437 | Latka Taxi 194 LLC |
| 438 | Latka Taxi 180 LLC |
| 439 | Latka Taxi 180 LLC |
| 440 | Latka Taxi 180 LLC |
| 441 | Latka Taxi 190 LLC |
| 442 | Latka Taxi 190 LLC |
| 443 | Latka Taxi 116 LLC |
| 444 | Latka Taxi 116 LLC |
| 445 | Latka Taxi 117 LLC |
| 446 | Latka Taxi 137 LLC |
| 447 | Latka Taxi 117 LLC |
| 448 | Latka Taxi 163 LLC |
| 449 | Latka Taxi 184 LLC |
| 450 | Latka Taxi 184 LLC |
| 451 | Latka Taxi 185 LLC |
| 452 | Latka Taxi 185 LLC |
| 453 | Latka Taxi 185 LLC |
| 454 | Latka Taxi 119 LLC |
| 455 | Latka Taxi 119 LLC |
| 456 | Latka Taxi 137 LLC |
| 457 | Latka Taxi 120 LLC |
| 458 | Latka Taxi 123 LLC |
| 459 | Latka Taxi 195 LLC |
| 460 | Latka Taxi 195 LLC |
| 461 | Latka Taxi 195 LLC |
| 462 | Latka Taxi 127 LLC |
| 463 | Latka Taxi 127 LLC |
| 464 | Latka Taxi 142 LLC |
| 465 | Latka Taxi 142 LLC |
| 466 | Simka Taxi 107 LLC |
| 467 | Simka Taxi 108 LLC |
| 468 | Simka Taxi 108 LLC |
| 469 | Simka Taxi 109 LLC |
ACP – MIDDLE MARKET PROMISSORY NOTE – 10/2/2517
| 470 | Simka Taxi 109 LLC |
|---|---|
| 471 | Simka Taxi 110 LLC |
| 472 | Simka Taxi 110 LLC |
| 473 | Simka Taxi 111 LLC |
| 474 | Simka Taxi 111 LLC |
| 475 | Simka Taxi 112 LLC |
| 476 | Simka Taxi 112 LLC |
| 477 | Simka Taxi 113 LLC |
| 478 | Simka Taxi 113 LLC |
| 479 | Simka Taxi 114 LLC |
| 480 | Simka Taxi 114 LLC |
| 481 | Simka Taxi 115 LLC |
| 482 | Simka Taxi 115 LLC |
| 483 | Simka Taxi 116 LLC |
| 484 | Simka Taxi 116 LLC |
| 485 | Simka Taxi 117 LLC |
| 486 | Simka Taxi 117 LLC |
| 487 | Simka Taxi 118 LLC |
| 488 | Simka Taxi 118 LLC |
| 489 | Simka Taxi 119 LLC |
| 490 | Simka Taxi 119 LLC |
| 491 | Simka Taxi 120 LLC |
| 492 | Simka Taxi 120 LLC |
| 493 | Simka Taxi 121 LLC |
| 494 | Simka Taxi 121 LLC |
| 495 | Latka Taxi 120 LLC |
| 496 | Latka Taxi 138 LLC |
| 497 | Latka Taxi 199 LLC |
| 498 | Latka Taxi 139 LLC |
| 499 | Latka Taxi 139 LLC |
| 500 | Latka Taxi 140 LLC |
| 501 | Latka Taxi 140 LLC |
| 502 | Latka Taxi 141 LLC |
| 503 | Latka Taxi 141 LLC |
| 504 | Simka Taxi 100 LLC |
| 505 | Simka Taxi 100 LLC |
| 506 | Simka Taxi 101 LLC |
| 507 | Simka Taxi 101 LLC |
| 508 | Simka Taxi 102 LLC |
| 509 | Simka Taxi 102 LLC |
| 510 | Simka Taxi 103 LLC |
| 511 | Simka Taxi 103 LLC |
| 512 | Simka Taxi 104 LLC |
ACP – MIDDLE MARKET PROMISSORY NOTE – 10/2/2518
| 513 | Simka Taxi 104 LLC |
|---|---|
| 514 | Simka Taxi 105 LLC |
| 515 | Simka Taxi 105 LLC |
| 516 | Simka Taxi 106 LLC |
| 517 | Simka Taxi 106 LLC |
| 518 | Simka Taxi 107 LLC |
ACP – MIDDLE MARKET PROMISSORY NOTE – 10/2/2519
EX-10.11
Certain confidential information contained in this document, marked by “[***]”, has been omitted pursuant to Item 601(b)(10)(iv) of Regulation S-K because it is both (i) not material and (ii) is the type of information that the Company treats as private or confidential. Certain schedules (or similar attachments) also marked by “[***]” have been omitted pursuant to Item 601(a)(5) of Regulation S-K.
AUXILIOR CAPITAL PARTNERS, INC.
AGREEMENT OF GUARANTY
THIS AGREEMENT OF GUARANTY (this “Guaranty”) is executed and delivered by DEPALMA ACQUISITION I LLC, DEPALMA ACQUISITION II LLC, MARBLEGATE CAPITAL CORPORATION and SEPTUAGINT SOLUTIONS LLC (collectively, the "Guarantor") in favor of AUXILIOR CAPITAL PARTNERS, INC., its successors and assigns ("Lender"), in connection with that certain Loan and Security Agreement No. 1019386, dated as of December 31, 2025, and each subsequently executed Promissory Note, each by and between Lender and those certain wholly owned subsidiaries (each, an “SPV”) of DePalma Acquisition II LLC set forth in the Agreement ("Borrower"), pursuant to which Borrower has borrowed or is to borrow certain funds from Lender, which indebtedness is or is to be evidenced thereby (all such promissory notes and agreements being herein collectively referred to as the "Agreement").
In order to induce Lender to enter into the Agreement (execution and delivery hereof being a condition precedent to Lender's obligations under the Agreement), and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Guarantor hereby UNCONDITIONALLY GUARANTEES:
(a) the prompt payment of all principal of and interest on the promissory note(s) issued pursuant to the Agreement when due, whether by acceleration or otherwise;
(b) the prompt performance by Borrower of all of its covenants and agreements in the Agreement; and
(c) the prompt payment at maturity by Borrower of any and all sums of money for which Borrower now is or may hereafter become indebted to Lender pursuant to the Agreement (collectively, the "Obligations").
This Guaranty is a continuing one and shall terminate only upon full payment of all sums due under the Agreement and the performance of all of the terms, covenants and conditions therein required to be kept, observed or performed by Borrower, including such payment and performance under all promissory notes executed pursuant to the Agreement, whether to be performed before or after the last payment has been made under the Agreement. Guarantor expressly waives the right to revoke or terminate this Guaranty, including any statutory right of revocation under the laws of any state. This Guaranty is a guaranty of prompt payment and performance (and not merely a guaranty of collection). Guarantor’s obligations hereunder are joint and several.
Guarantor authorizes Lender, with Borrower's consent where required, without notice or demand, and without affecting its liability hereunder, from time to time to: (a) change the amount, time or manner of payment of the sums required to be paid pursuant to the Agreement; (b) change any of the terms, covenants, conditions or provisions of the Agreement; (c) amend, modify, change or supplement the Agreement; (d) assign the Agreement or the sums payable under the Agreement; (e) consent to Borrower's assignment of the Agreement; (f) receive and hold security for the payment of this Guaranty or the performance of the Agreement, and exchange, enforce, waive and release any such security; and (g) apply such security and direct the order or manner of sale thereof as Lender in its discretion may determine.
Guarantor waives any right to require Lender to: (a) proceed against Borrower, any other guarantor or any other person directly or contingently liable for the payment of any of the Obligations; (b) proceed against or exhaust any security held from Borrower, any other guarantor or any other person directly or contingently liable for the payment of any of the Obligations; (c) pursue any other remedy in Lender's power whatsoever; or (d) notify Guarantor of any adverse change in Borrower’s financial condition or of any default by Borrower in the payment of any sums required to be paid pursuant to the Agreement or in the performance of any term, covenant or condition therein required to be kept, observed or performed by Borrower. Guarantor waives any defense arising by reason of any disability or other defense of Borrower, any lack of authority of Borrower with respect to the Agreement, the invalidity, illegality or lack of enforceability of the Agreement from any cause whatsoever, the failure of Lender to perfect or maintain perfection of any interest in any collateral, or the cessation from any cause whatsoever of the liability of Borrower, and any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge, release or defense of a guarantor or surety, or that might otherwise limit recourse against Guarantor; provided, however, that Guarantor does not waive any defense arising from the due performance by Borrower of the terms and conditions of the Agreement.
Upon demand, Guarantor agrees to pay and perform the Obligations regardless of any existing or future offset or claim which may be asserted by Guarantor. This Guaranty and Guarantor's payment obligations hereunder shall continue to be effective or be reinstated, as the case may be, if at any time payment of any of the Obligations is rescinded or must otherwise be restored or returned
ACP – GUARANTY – CORPORATE LOAN AND SECURITY AGREEMENT – 10/2/25
by Lender, all as though such payment had not been made. Lender's good faith determination as to whether a payment must be restored or returned shall be binding on Guarantor. Until the payment and performance in full of all of the Obligations, Guarantor waives and shall have no right of subrogation against Borrower, and waives any right to enforce any remedy which Lender now has or may hereafter have against Borrower, and waives any benefit of, and any right to participate in, any security now or hereafter held by Lender. Guarantor waives all presentments, demands for performance, notices of non‑performance, protests, notices of dishonor, and notices of acceptance of this Guaranty.
- Guarantor represents and warrants to Lender that:
(a) Guarantor has the form of business organization, and is and will remain duly organized and validly existing in good standing under the laws of the jurisdiction, specified below the signature of Guarantor.
(b) The execution, delivery and performance hereof: (1) have been duly authorized by all necessary action consistent with Guarantor’s form of organization; (2) do not require any approval or consent of any stockholder, member, partner, trustee or holder of any obligations of Guarantor except such as have been duly obtained; and (3) do not and will not contravene any law, governmental rule, regulation or order now binding on Guarantor, or the organizational documents of Guarantor, or contravene the provisions of, or constitute a default under, or result in the creation of any lien or encumbrance upon the property of Guarantor under, any indenture, mortgage, contract or other agreement to which Guarantor is a party or by which it or its property is bound.
(c) The financial statements of Guarantor (copies of which have been furnished to Lender) have been prepared in accordance with generally accepted accounting principles consistently applied ("GAAP"), and fairly present Guarantor's financial condition and the results of its operations as of the date of and for the period covered by such statements, and since the date of such statements there has been no material adverse change in such conditions or operations.
(d) This Guaranty constitutes the legal, valid and binding obligation of Guarantor, enforceable against Guarantor in accordance with the terms hereof, except as limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors' rights generally, and by applicable laws (including any applicable common law and equity) and judicial decisions which may affect the remedies provided herein.
(e) There are no pending actions or proceedings to which Guarantor is a party, and there are no other pending or threatened actions or proceedings of which Guarantor has knowledge, before any court, arbitrator or administrative agency, which, either individually or in the aggregate, would have a Material Adverse Effect. As used herein, "Material Adverse Effect" shall mean (1) a materially adverse effect on the business, condition (financial or otherwise), operations, performance or properties of Guarantor, or on Lender’s rights and remedies under this Guaranty, or (2) a material impairment of the ability of Guarantor to perform its obligations under or to remain in compliance with this Guaranty. Further, Guarantor is not in default for the deferred purchase price of property or for the payment of any rent which, either individually or in the aggregate, would have the same such effect.
(f) Guarantor acknowledges and agrees that it will enjoy a substantial economic benefit by virtue of the extension of credit by Lender to Borrower pursuant to the Agreement.
- Guarantor covenants and agrees that: (a) it will provide to Lender: (1) as soon as available, and in any event within one hundred (120) days after the last day of each fiscal year of Guarantor, a copy of the balance sheet of Guarantor as of the end of such fiscal year, and related statements of income and retained earnings of Guarantor for such fiscal year, all in reasonable detail and of a scope consistent with Lender’s policy as prepared in accordance with generally accepted accounting principles consistently applied and certified by an independent certified accounting firm of recognized standing (if applicable) or certified by either the Treasurer, Chief Financial Officer, President or Owner of Guarantor, and which is reasonably acceptable to Lender, each on a comparative basis with corresponding statements for the prior fiscal year; and (2) upon the written request of Lender, a copy of the balance sheet of Guarantor as of the end of each fiscal quarter, and statements of income and retained earnings covering the fiscal year to date of Guarantor, each on a comparative basis with the corresponding period of the prior year, all in reasonable detail and certified by either the Treasurer, Chief Financial Officer, President or Owner of Guarantor; (b) it will promptly execute and deliver to Lender such further documents, instruments and assurances and take such further action as Lender from time to time may reasonably request in order to carry out the intent and purpose of this Guaranty and to establish and protect the rights and remedies created or intended to be created in favor of Lender hereunder; (c) it has been advised by Lender that the USA Patriot Act establishes minimum standards of account information to be collected and maintained by Lender, and that to help the government fight the funding of terrorism and money laundering activities, Federal law requires all financial institutions to obtain, verify and record information that identifies each person who opens an account; and specifically, this means that when Guarantor executes this Guaranty, Lender may ask for Guarantor’s name and address, the date of birth of the officers executing this Guaranty, and other information that will allow Lender to identify Guarantor; and that Lender may also ask to see the driver’s license or other identifying documents of the officers of Guarantor executing this Guaranty; and (d) Guarantor is and will remain in full compliance with all Applicable Laws including, without limitation, ensuring that (i) no Covered Entity: (x) is a Sanctioned Person; (y) has any of its assets in a Sanctioned Country or in the possession, custody or control of a Sanctioned Person; or (z) does business in or with, or derives any of its operating income from investments in or transactions with, any Sanctioned Country or
2
ACP – GUARANTY – CORPORATE LOAN AND SECURITY AGREEMENT – 10/2/25
Sanctioned Person in violation of any law, regulation, order or directive enforced by any Compliance Authority; (ii) the proceeds of any loan under the Agreement will not be used to fund any operations in, finance any investments or activities in, or, make any payments to, a Sanctioned Country or Sanctioned Person in violation of any law, regulation, order or directive enforced by any Compliance Authority; (iii) the funds used to repay any loan under the Agreement are not derived from any unlawful activity; and (iv) each Covered Entity is in compliance with, and no Covered Entity engages in any dealings or transactions prohibited by, any laws of the United States, including but not limited to any Anti-Terrorism Laws. Guarantor covenants and agrees that it shall promptly notify Lender in writing upon the occurrence of a Reportable Compliance Event. As used herein: “Anti-Terrorism Laws” means any laws relating to terrorism, trade sanctions programs and embargoes, import/export licensing, money laundering, or bribery, all as amended, supplemented or replaced from time to time; “Compliance Authority” means each and all of the (A) U.S. Treasury Department/Office of Foreign Assets Control, (B) U.S. Treasury Department/Financial Crimes Enforcement Network, (C) U.S. State Department/Directorate of Defense Trade Controls, (D) U.S. Commerce Department/Bureau of Industry and Security, (E) U.S. Internal Revenue Service, (F) U.S. Justice Department, and (G) U.S. Securities and Exchange Commission; “Covered Entity” means Guarantor, its affiliates and subsidiaries, all guarantors, pledgors of collateral, all owners of the foregoing, and all brokers or other agents of Guarantor acting in any capacity in connection with this Guaranty; “Reportable Compliance Event” means that any Covered Entity becomes a Sanctioned Person, or is indicted, arraigned, investigated or custodially detained, or receives an inquiry from regulatory or law enforcement officials, in connection with any Anti-Terrorism Law or any predicate crime to any Anti-Terrorism Law, or self-discovers facts or circumstances implicating any aspect of its operations with the actual or possible violation of any Anti-Terrorism Law; “Sanctioned Country” means a country subject to a sanctions program maintained by any Compliance Authority; and “Sanctioned Person” means any individual person, group, regime, entity or thing listed or otherwise recognized as a specially designated, prohibited, sanctioned or debarred person or entity, or subject to any limitations or prohibitions (including, but not limited to, the blocking of property or rejection of transactions), under any order or directive of any Compliance Authority or otherwise subject to, or specially designated under, any sanctions program maintained by any Compliance Authority.
- A default shall be deemed to have occurred hereunder ("Default") if: (a) breach by Guarantor of its covenant pursuant to Section 5(d) hereof or failure to satisfy the requirements of any financial covenants set forth herein or in any Rider attached hereto; (b) Guarantor shall fail to perform or observe any other covenant, condition or agreement to be performed or observed by it hereunder and such failure shall continue unremedied for a period of thirty (30) days after the earlier of the actual knowledge of Guarantor or written notice thereof to Guarantor by Lender; (c) a payment or other default by Guarantor under any loan, lease, guaranty or other financial obligation to Lender or its affiliates which default entitles the other party to such obligation to exercise remedies; (d) a payment or other default by Guarantor under any material loan, lease, guaranty or other material financial obligation to any third party which default has been declared; (e) an inaccuracy in any representation or breach of warranty by Guarantor (including any false or misleading representation or warranty) in any financial statement or any other document, including any omission of any substantial contingent or unliquidated liability or claim against Guarantor; (f) the failure by Guarantor generally to pay its debts as they become due or its admission in writing of its inability to pay the same, or the commencement of any bankruptcy, insolvency, receivership or similar proceeding by or against Guarantor or any of its properties or business (unless, if involuntary, the proceeding is dismissed within sixty (60) days of the filing thereof) or the rejection of this Guaranty or the Agreement in any such proceeding; (g) Guarantor shall (1) enter into any transaction of merger or consolidation where Guarantor is not the surviving entity (such actions being referred to as an "Event"), unless the surviving entity is organized and existing under the Laws of the United States or any state, and prior to such Event: (A) such person executes and delivers to Lender (x) an agreement satisfactory to Lender, in its sole discretion, containing such person's effective assumption, and its agreement to pay, perform, comply with and otherwise be liable for, in a due and punctual manner, all of Guarantor's obligations having previously arisen, or then or thereafter arising, under this Guaranty, and (y) any and all other documents, agreements, instruments, certificates, opinions and filings requested by Lender; and (B) Lender is satisfied as to the creditworthiness of such person, and as to such person's conformance to the other standard criteria then used by Lender when approving transactions similar to the transactions contemplated in this Guaranty; (2) cease to do business as a going concern, liquidate, or dissolve; or (3) sell, transfer, or otherwise dispose of all or substantially all of its assets or property; (h) if Guarantor is privately held and effective control of Guarantor's voting capital stock/membership interests/partnership interests, issued and outstanding from time to time, is not retained by the present holders (unless Guarantor shall have provided thirty (30) days' prior written notice to Lender of the proposed disposition and Lender shall have consented thereto in writing); (i) if Guarantor is publicly held and there is a material change in the ownership of Guarantor’s capital stock, unless Lender is satisfied as to the creditworthiness of Guarantor and as to Guarantor's conformance to the other standard criteria then used by Lender for such purpose immediately thereafter; or (j) the occurrence of an event which has a Material Adverse Effect.
Upon a Default hereunder, Lender may, at its option, declare this Guaranty to be in default by written notice to Guarantor (without election of remedies), and at any time thereafter, may do any one or more of the following, all of which are hereby authorized by Guarantor:
A. declare the Agreement to be in default and thereafter sue for and recover all liquidated damages, accelerated payments and/or other sums otherwise recoverable from Borrower thereunder; and/or
B. sue for and recover all damages then or thereafter incurred by Lender as a result of such Default; and/or
C. seek specific performance of Guarantor's obligations hereunder.
3
ACP – GUARANTY – CORPORATE LOAN AND SECURITY AGREEMENT – 10/2/25
In addition, Guarantor shall be liable for all reasonable attorneys' fees and other costs and expenses incurred by reason of any Default or the exercise of Lender's remedies hereunder and/or under the Agreement. No right or remedy referred to in this Section is intended to be exclusive, but each shall be cumulative, and shall be in addition to any other remedy referred to above or otherwise available at law or in equity, and may be exercised concurrently or separately from time to time.
The failure of Lender to exercise the rights granted hereunder upon any Default by Guarantor shall not constitute a waiver of any such right upon the continuation or reoccurrence of any such Default.
The obligations of Guarantor hereunder are independent of the obligations of Borrower. A separate action or actions may be brought and prosecuted against Guarantor whether an action is brought against Borrower or whether Borrower be joined in any such action or actions.
GUARANTOR AGREES THAT THIS GUARANTY AND THE RIGHTS AND OBLIGATIONS OF LENDER AND GUARANTOR HEREUNDER SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO THE CONFLICT OF LAWS PRINCIPLES OF SUCH STATE), INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE. Guarantor agrees that any action or proceeding arising out of or relating to this Guaranty may be commenced in any state or federal court in the State of New York; and agrees that a summons and complaint commencing an action or proceeding in any such court shall be properly served and shall confer personal jurisdiction if served personally or by certified mail to it at its address hereinafter set forth, or as it may provide in writing from time to time, or as otherwise provided under the laws of the State of New York.
(a) Any and all payments to Lender by Guarantor hereunder shall be made free and clear of and without deduction for any and all taxes, levies, imposts, deductions, charges or withholdings prescribed under the laws of the United States (other than federal income taxes), any foreign country or a political subdivision thereof, and all liabilities with respect thereto (all such taxes, levies, imposts, deductions, charges, withholdings and liabilities being hereinafter referred to as “Taxes”). If Guarantor shall be required by law to deduct any Taxes from or in respect of any sum payable hereunder, (i) the sum payable shall be increased as may be necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section) Lender receives an amount equal to the sum it would have received had no such deductions been made, (ii) Guarantor shall make such deductions, and (iii) Guarantor shall pay the full amount deducted to the relevant taxation authority or other authority in accordance with applicable law.
(b) In addition, Guarantor agrees to pay any present or future stamp or documentary taxes, recording or filing fees or any other excise or property taxes, charges or similar levies which arise from any payment made hereunder or from the execution or delivery or otherwise with respect to this Guaranty (hereinafter referred to as “Other Taxes”).
(c) Guarantor shall indemnify Lender for the net amount of Taxes or Other Taxes (including penalties, interest, additions to tax and related expenses) imposed by any taxing jurisdictions on amounts payable under this Guaranty (including amounts payable under this sentence), whether or not such Taxes or Other Taxes were correctly or legally asserted. This indemnification shall be made within thirty (30) days from the date Lender makes written demand therefor. Lender agrees to take (at the expense of Guarantor) such actions as Guarantor may reasonably request to mitigate or reduce Guarantor’s liability under this Section, which actions do not, in the good faith opinion of Lender result in any material adverse tax or other consequences to Lender. The calculation of any amounts due under this Section shall be made by Lender, and shall be binding absent manifest error.
(d) Within thirty (30) days after the date of any payment of Taxes subject to indemnity by Guarantor, Guarantor will furnish to Lender, at its principal office, the original or a certified copy of a receipt evidencing payment thereof.
Guarantor shall make all payments due hereunder in Dollars and this obligation shall not be discharged by any tender or judgment which is expressed in or converted into any currency other than Dollars, except to the extent resulting in the actual receipt by Lender of the full amount of Dollars payable hereunder. Such obligation to pay in Dollars shall be enforceable as an additional cause of action to recover in Dollars the amount, if any, by which such actual receipt shall fall short of the full amount of Dollars payable hereunder.
The obligations of Guarantor under this Guaranty may not be assigned or delegated without the prior written consent of Lender. This Guaranty shall inure to the benefit of Lender, its successors and assigns, and shall be binding upon the successors and permitted assigns of Guarantor.
4
ACP – GUARANTY – CORPORATE LOAN AND SECURITY AGREEMENT – 10/2/25
- All notices hereunder shall be in writing, personally delivered, delivered by overnight courier service, sent by email, or sent by certified mail, return receipt requested, addressed as follows:
If to Guarantor: Marblegate Capital Corporation
5 Greenwich Office Park
Suite 400
Greenwich, CT 06831
email: [***]
If to Lender: Auxilior Capital Partners, Inc.
620 West Germantown Pike
Suite 450
Plymouth Meeting, PA 19462
email: [***]
or to such other address as such party shall from time to time designate in writing to the other party; and shall be effective from the date of receipt.
This Guaranty constitutes the entire agreement between the parties with respect to the subject matter hereof and shall not be rescinded, amended or modified in any manner except by a document in writing executed by both parties. Any provision of this Guaranty which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
GUARANTOR HEREBY WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO WHICH GUARANTOR MAY BE A PARTY ARISING OUT OF OR IN ANY WAY PERTAINING TO THIS GUARANTY.
IN WITNESS WHEREOF, Guarantor has executed this Agreement of Guaranty, under seal, as of December 31, 2025.
DEPALMA ACQUISITION I LLC
By: /s/ Michael Hutchby
Name: Michael Hutchby
Title: CFO
DEPALMA ACQUISITION II LLC
By: /s/ Michael Hutchby
Name: Michael Hutchby
Title: CFO
MARBLEGATE CAPITAL CORPORATION
By: /s/ Michael Hutchby
Name: Michael Hutchby
Title: CFO
SEPTUAGINT SOLUTIONS LLC
By: DePalma Acquisition II, LLC, its sole member
By: /s/ Michael Hutchby
Name: Michael Hutchby
Title: CFO
5
ACP – GUARANTY – CORPORATE LOAN AND SECURITY AGREEMENT – 10/2/25
EX-99.1
Marblegate Capital Corporation Closes on $137 Million in Financings to Support Fleet Operations Growth, Strategic Initiatives
New financings include $120 million credit facility with DZ Bank, New York Branch, and $17.2 million term loan with Auxilior Capital Partners, Inc.
Overall financing will help continue to power MCC's "driver-first" approach, modernizing and expanding Signal Taxi's fleet, improving the driver experience, exploring new growth opportunities, and other corporate purposes
NEW YORK, Jan. 5, 2026 /PRNewswire/ -- Marblegate Capital Corporation (MCC), the largest full-service fleet operator and specialty finance lender in the New York City (NYC) taxi market, today announced it has closed on two financing transactions totaling approximately $137 million to support the expansion and enhancement of the operation of its full-service fleet operator, Signal Taxi. The total financing will enable Signal Taxi to continue to invest and enhance the driver experience, expand its holdings of medallions and wheelchair accessible vehicles (WAVs), explore potential growth initiatives, and other general corporate purposes.
On December 30, 2025, MCC closed on a $120 million revolving loan facility with DZ Bank, New York Branch, as administrative agent. On December 31, 2025, MCC closed on an approximately $17.2 million term loan financing with Auxilior Capital Partners, which will fund additional strategic growth opportunities.
In 2025, Signal Taxi and its partners added more cars than any other taxi fleet operator, accounting for more than one-third of all new WAV vehicles and MCC recently announced that it plans to open two additional Taxi Clubhouses in New York City in the coming months – a move that will expand on the program that Marblegate initially debuted in 2023, when it opened the city's first-of-its-kind Taxi Clubhouse on West 22nd Street in Chelsea.
MCC believes it is the largest publicly traded company of its kind in the NYC taxi market. Leveraging Marblegate Asset Management's years of deep industry experience and expertise, and strong portfolio operations capabilities, MCC aims to transform and institutionalize the taxi industry. Marblegate played a pivotal role in the successful launch and implementation of the NYC MRP+ medallion debt relief program, designed to provide financial relief to drivers who were previously subject to predatory lending practices, catalyzing positive change in the industry and underpinning its ongoing recovery.
About Marblegate Capital Corporation Marblegate Capital Corporation (OTCQX: MGTE), is a vertically integrated, full-service fleet operator and specialty finance lender in the NYC taxi market. Marblegate Capital Corporation specializes in NYC taxi medallions as a lender, owner, and fleet operator. With a loan portfolio collateralized by nearly 1,700 medallions and over 2,000 medallions owned, we believe we are the largest lender and owner of NYC taxi medallions as well as one of the largest NYC medallion Fleet operators1. What differentiates us is our end-to-end understanding of the taxi business and
position as the most impactful player in the industry driving positive change. Marblegate Asset Management serves as Marblegate Capital Corporation's external manager.
1 As of September 30, 2025.
CONTACT: mcc@heller.inc
SOURCE
Marblegate Capital Corporation
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