FILED: NEW YORK COUNTY CLERK 08/14/2015 10:36 PM INDEX NO. 652346/2015 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 08/14/2015 Exhibit C
For Lender use only: Received by: Approved by: Other: CAPITAL ONE TAXI MEDALLION FINANCE (Capital One Taxi Medallion Finance is a trade name of Capital One Equipment Finance Corp. Capital One Equipment Finance Corp. is a subsidiary of Capital One Bank. Capital One Bank is a trade name of Capital One, NA.) SECOND AMENDED AND RESTATED REVOLVING ADVISED LINE OF CREDIT PROMISSORY NOTE BORROWER: TRANSIT FUNDING ASSOCIATES LLC, a Delaware limited liability company PRINCIPAL: $80,000,000.00 EFFECTIVE DATE: July 1, 2013 PROMISE TO PAY: TRANSIT FUNDING ASSOCIATES LLC, a Delaware limited liability company authorized to do business in the State of Illinois (the "Borrower") does hereby promise to pay to the order of CAPITAL ONE TAXI MEDALLION FINANCE, at 275 Broadhollow Road, Melville, New York 11747 (Capital One Taxi Medallion Finance is a trade name of Capital One Equipment Finance Corp. Capital One Equipment Finance Corp. is a subsidiary of Capital One Bank. Capital One Bank is a trade name of Capital One, N.A.) (the "Bank"), or at any branch of Capital One Bank, the sum of Eighty Million and 00/100 ($80,000,000_00) Dollars, or, if less, the aggregate unpaid principal balance of all Advances (as hereinafter defined) plus interest on the outstanding principal balance hereof as set forth below. RATE : The unpaid principal balance hereof shall bear interest at the Initial rate of Three and 19505/100,000 percent (3.19505%) per annum. The interest rate payable hereon will be adjusted each month during the term hereof commencing on the first (1s1) day of August, 2013 and on the first (1s) day of each and every month thereafter, (each. an "Adjustment Date"), to a rate per annum equal to the Effective LIBOR Rate (as hereinafter defined) plus three hundred (300) basis points (at times, the "Rate"). The Rate will be set on each Adjustment Date and shall be effective for the forthcoming month as of the first (151) day of that month and shall be applied to the principal sum outstanding hereon, from time for time, for that month For purposes of this Note, LIBOR shall be deemed to mean the composite London Interbank Offered Rate for one (1) month U.S. dollar deposits (as reflected on the US Dollar LIBOR Telerate page 3750 or any other relevant indicator of the applicable LIBOR rate chosen by the Lender). If, on any Adjustment Date, the Lender is required but unable to determine the one (1) month LIBOR Rate in the manner provided in this paragraph, the one (1) month LIBOR Rate for such Adjustment Date shall be the one (1) month LIBOR Rate as determined by Lender on the basis of such one (1) month LIBOR Rate as published in The Wall Street Journal in New York, New York, under the heading "London Interbank Offered Rates (LIBOR)" of the "Money Rates' column on the 'Credit
Markets" page, (or if The Wall Street Journal in New York, New York is not published on such date, the next preceding date on which The Wall Street Journal in New York, New York is published). In the event The Wall Street Journal in New York, New York ceases publication or ceases to publish such one (1) month LIBOR Rate, the Lender shall select a comparable publication to determine such one (1) month LIBOR Rate and provide notice thereof to Borrower. The establishment of the one (1) month LIBOR Rate on each Adjustment Date by the Lender and the Lender's calculation of the applicable interest rate for the forthcoming month (at times, an "Interest Period") shall (in the absence of manifest error) be final and binding. The one (1) month LIBOR Rate may or may not be the lowest rate based upon the market for U.S. Dollar deposits in the London Interbank LIBOR Market at which the Lender prices loans on the date on which the one (1) month LIBOR Rate is determined by the Lender as set forth herein. "Effective LIBOR Rate" shall be deemed to mean LIBOR for each month during the term hereof published on the first (1M) business day of each respective month during the term of this Note which such Effective LIBOR Rate shall be effective as of the first (1s1) day of each and every month during the term hereof. "Advances" shall be deemed to mean all advances made hereunder and pursuant to the Loan Agreement (as hereinafter defined), at the sole discretion of the Lender, to the Borrower. Borrower shall request such Advances pursuant to the requirements in the Loan Agreement on the form attached thereto as Exhibit "B". The Borrower shall notify the Lender in writing prior to the advancement of any funds hereunder of the amount it wishes to borrow. PAYMENT: Interest on the outstanding principal balance hereof at the applicable Rate shall be paid, in arrears, on the first (1s') day of each and every month during the term hereof commencing on the first (15I) day of August, 2013 and continuing thereafter on the first (1s1) day of each and every succeeding month until July 1, 2014 (the "Maturity Date") on which date and at which time the outstanding principal balance hereof, all interest accrued hereon and all related charges due to the Lender shall be due and payable. THIS NOTE SHALL MATURE ON JULY 1, 2014 WITH ALL SUMS OF PRINCIPAL, ACCRUED INTEREST AND RELATED CHARGES DUE AND OWING ON SUCH DATE. Notwithstanding the foregoing, or anything contained herein, to the contrary, if, at, or prior to, the Maturity Date the Lender elects not to extend or renew the loan facility evidenced by this Note and the Loan Agreement, then, provided no Default or Event of Default is occurring hereunder or under any Loan Document (as such term is defined in the Loan Agreement) beyond the expiration of applicable notice and cure periods, the Maturity Date shall automatically be extended for purposes of repayment of this Note only and not for purposes of additional Advances under the Loan Agreement to October 1, 2014; time being of the essence. Payments shall be applied first to interest on unpaid principal balance to the date payment is received by the Lender and then to reduction of principal. Interest shall be calculated on a 360- day year and actual number of days elapsed. All interest payments due hereunder shall be made by automatic debit from an account maintained by the Borrower for such purpose at Capital One, N.A. or Capital One Bank in which the Borrower shall maintain balances sufficient to pay each monthly interest payment due to the Lender. Each monthly payment of interest shall be automatically deducted from Capital One, N.A. Account
number 7047213236 in connection with this Note on the due date thereof (at times, the "due date"), and the undersigned agrees to maintain sufficient funds in said account to cover these payments. The undersigned further agrees that should there be insufficient funds in said account on the monthly payment due date, an overdraft charge or insufficient funds fee will be incurred and the account will not be charged for the monthly payment on such date. However, if this occurs, the undersigned will remain responsible for the principal and interest payment, plus any late charges, and the undersigned will be in default under this Note. In the event that the money maintained in such account is insufficient for any payment due under this Note, Borrower hereby unconditionally authorizes Lender to direct Capital One, N.A. and Capital One Bank (its successors and/or assigns) to charge any account of the Borrower or any Guarantor hereof maintained at Capital One, N.A. and Capital One Bank (its successors and/or assigns) for any payment due to the Lender under this Note. Except as otherwise expressly set forth herein or in the Loan Agreement, nothing contained herein shall be deemed to limit or restrict Borrower's access to, or use of, the funds it deposits in the account for any purpose whatsoever including, without limitation, working capital purposes. Subject to the terms and conditions of the Loan Agreement, the Borrower may borrow, repay in whole or in part, and re-borrow on a revolving basis amounts up to, but not exceeding in the aggregate, Eighty Million and 00/100 ($80,000,000.00) Dollars, or any lesser sum that is at least $50,000.00 and in integral multiples of $10,000.00. The Lender, however, reserves the right to make or decline any request for an Advance in its sole discretion pursuant to the terms of the Loan Agreement. Notwithstanding anything to the contrary contained herein, Advances hereunder in the aggregate, shall not exceed the sum of Eighty Million and 00/100 ($80,000,000.00) Dollars; the Maximum Facility Amount as such term is defined in that certain Loan and Security Agreement by and between the Borrower and the Lender of even date herewith (the "Loan Agreement"). Borrower authorizes the Lender to keep a record of the amounts and dates of all Advances and repayments hereunder, which record shall, in the absence of manifest error, be conclusive as to the outstanding principal amount due hereunder, provided, however, that the failure to record any Advance or repayment shall not limit or otherwise affect the obligation of Borrower under this Note. The determination of the amount of interest due to the Lender by Borrower, the Advances made under this Note and all payments or repayments made by Borrower as shown on the books of the Lender shall be conclusive and binding upon Borrower, except in the case of manifest error. If the Lender at any time determines in its sole discretion that it has miscalculated any amount due, the Lender shall give notice to Borrower of the corrected amount and (i) if the corrected amount represents an increase, within ten (10) days, Borrower shall pay to the Lender any sums that Borrower otherwise would have been obligated to pay under this Note to the Lender had the amount not been miscalculated or (ii) if the corrected amount represents a decrease, and Borrower is not otherwise in default, within ten (10) days, the Lender shall pay or credit to Borrower any sums that Borrower otherwise would not have been obligated to pay under this Note to the Lender had the amount not been miscalculated. PREPAYMENT: This Note may be prepaid in part or in full without penalty. Any partial prepayment will be applied in inverse order of maturity and will not defer the payment schedule. DEFAULT INTEREST RATE: The unpaid principal sum due under this Note shall bear interest at a rate equal to three (3%) percent above the applicable Rate after the occurrence and during the continuation of any Event of Default, but in no event shall the Rate either before or after the occurrence of any Event of Default exceed the highest rate of interest, if any, permitted under
applicable New York or Federal Law_ RIGHT OF OFFSET: If any payment is not made on time, or if the entire balance becomes due and payable and is not paid, all or part of the amount due may be offset out of any account or other property which the Borrower or any Guarantor hereof has at Capital One Bank or any affiliate of Capital One Bank, or deposited at Capital One, N.A., without prior notice or demand. This right does not extend to any IRA, pension or other tax deferred deposit accounts maintained at Capital One Bank by Borrower. This provision is in addition to and not in limitation of any right of common law or by statute. LATE CHARGES: The Borrower will pay a charge of four (4%) percent of the amount of any payment which is not made within ten (10) days of when due, to defray the expenses incurred by the Lender in handling and processing the delinquent payment and to compensate the Lender for the loss of the use of the delinquent payment. The amount thereof shall be secured by the Loan Agreement and the other Loan Documents. SECURITY: This Note is secured by the Loan Agreement and the Collateral described therein. DEFAULT: The Lender may, following ten (10) days' prior written notice with an opportunity to cure within such period, declare the entire unpaid balance of this Note due and payable on the happening of any of the following events (each, an "Event of Default" or, collectively, "Events of Default"): (a) Failure to pay any amount required by this Note when due and such default shall continue (i) in the case of a scheduled payment of principal or interest due hereunder or otherwise, for a period of five (5) days from the date such payment is due, or (ii) in the case of any other payment obligation, for a period of ten (10) days after notice to Borrower from Lender; or (b) Agreement. an Event of Default shall have occurred hereunder or as defined in the Loan ATTORNEY'S FEES: In the event the Lender retains counsel with respect to enforcement of this Note or any other document or instrument given to the Lender, the Borrower agrees to pay the Lenders reasonable attorneys fees and associated costs and disbursements (whether or not an action is commenced and whether or not in the court of original jurisdiction, appellate court, Bankruptcy court, or otherwise). SUBSEQUENT AGREEMENTS: The Borrower and the Guarantors shall be jointly and severally bound by any agreement extending the time or modifying the above terms of payment made by the Lender and any owner(s) of the property covered by the guaranties referred to herein, without notice to the Borrower, and the Borrower shall continue to be liable to pay all amounts due hereunder, but at an interest rate not exceeding the Rate set forth herein, according to the terms of any such agreement of extension or modification. MISCELLANEOUS: Delay or failure of the Lender to exercise any of its rights under this Note shall not be deemed a waiver thereof, nor shall it bar the exercise of any such right at a later date. Each and every right and remedy granted to the Lender hereunder, or under the Loan Agreement, any security agreement made in favor of the Lender in connection herewith or in connection with any guaranty hereof, or under any other Loan Document or under any agreement between Borrower 4
and the Lender or available at law or in equity shall be cumulative and not exclusive of any other rights, powers, privileges or remedies, and may be exercised by the Lender from time to time and as often as may be necessary in the sole and absolute discretion of the Lender. No waiver of any condition or requirement shall be binding unless in writing and no such written waiver shall operate as a waiver of any other or subsequent condition or requirement. No change, amendment, modification, termination, waiver, or discharge, in whole or in part, of any provision of this Note shall be effective unless in writing and signed by the Lender, and if so given by the Lender, shall be effective only in the specific instance in which given. The Borrower acknowledges that this Note and the Borrower's obligations under this Note are, and shall at all times continue to be, absolute and unconditional in all respects, and shall at all times be valid and enforceable irrespective of any other agreements or circumstances of any nature whatsoever which might otherwise constitute a defense to this Note and the obligations of the Borrower under this Note. The Lender or any other holder of this Note does not have to present it before requiring payment. It is the intention of Borrower and the Lender to conform strictly to the usury and similar laws relating to interest from time to time in force, and all agreements between the Lender and Borrower, whether now existing or hereafter arising and whether oral or written, are hereby expressly limited so that in no contingency or event whatsoever, whether by acceleration of maturity hereof or otherwise, shall the amount paid or agreed to be paid in the aggregate to the Lender as interest hereunder, under the Loan Agreement or under the other Loan Documents exceed the maximum permissible under applicable usury or such other laws (the "Maximum Amount"). If from any possible construction of any document, interest would otherwise be payable hereunder, under the Loan Agreement or under the other Loan Documents in excess of the Maximum Amount, or in the event for any reason whatsoever any payment by or act of Borrower pursuant to the terms or requirements hereof, of the Loan Agreement or of the other Loan Documents shall result in the payment of interest which would exceed the Maximum Amount, then any such construction shall be subject to the provisions of this paragraph, and ipso facto such document shall be automatically reformed, without the necessity of the execution of any amendment or new document, so that the obligation of Borrower to pay interest or perform such act or requirement shall be reduced to the limit authorized under the applicable laws, and in no event shall Borrower be obligated to pay any interest, perform any act, or be bound by any requirement which would result in the payment of interest in excess of the Maximum Amount. Any amount received by the Lender in excess of the Maximum Amount shall, without further agreement or notice between or by any party hereto, be deemed applied to reduce the principal sum hereof immediately upon receipt of such moneys by the Lender, with the same force and effect as though Borrower had specifically designated such sums to be applied to principal prepayment. The provisions of this Article shall supersede any inconsistent provision of this Note, the Loan Agreement or any other Loan Document. All signatories to this Note, jointly and severally, waive presentment for payment, notice of dishonor, protest, notice of protest of this Note or other notice of any kind and all demands whatsoever; and in any litigation with the Lender, whether or not arising out of or relating to this Note or any collateral security therefore, said parties expressly waive trial by jury. and in addition, expressly waive the right to interpose any defense based on any statute of limitations or any claim of laches and any set-off, counterclaim, or cross-claim of any nature or description. Borrower shall not be entitled to any notices of any nature whatsoever from the Lender except with respect to matters for which this Note specifically and expressly provides for the giving of notice by the Lender to Borrower and except with respect to matters for which Borrower is not, pursuant to applicable legal requirements, permitted to waive the giving of notice_ Borrower hereby expressly 5
waives the right to receive any notice from the Lender with respect to any matter for which this Note does not specifically and expressly provide for the giving of notice by the Lender to Borrower. No failure to accelerate the debt evidenced hereby by reason of an Event of Default hereunder, acceptance of a past due installment, or indulgence granted from time-to-time shall be construed (a) as a novation of this Note or a reinstatement of the indebtedness evidenced hereby or as a waiver of such right or acceleration or the right of the Lender thereafter to insist upon strict compliance with the terms of this Note, or (b) to prevent the exercise of such right of acceleration or any other right granted hereunder or by applicable law; and Borrower hereby expressly waives the benefit of any statute or rule of law or equity now provided, which may hereafter be provided, which would produce a result contrary to or in conflict with the foregoing. No extension of the time for the payment of this Note or any installment due hereunder, made by agreement with any person now or hereafter liable for the payment of this Note, shall operate to release, discharge, modify, change or affect the original liability of Borrower under this Note, either in whole or in part, unless the Lender agrees otherwise in writing. Acceptance of any payment after the occurrence of a default under this Note shall not be deemed to waive or cure such default under this Note; and every power and remedy given by this Note to the Lender may be exercised from time to time as often as may be deemed expedient by the Lender. Borrower hereby waives any right to require the Lender at any time to pursue any remedy in the Lender's power whatsoever. No provision of this Note may be changed, waived, discharged, or terminated except by an instrument in writing signed by the party against whom enforcement of the waiver, change, modification or discharge is sought. The Lender may, without the consent of Borrower, release or discharge the Borrower, accommodation party, or surety or release, surrender, waive, substitute, compromise, or discharge any security herefor without affecting the liability of the Borrower hereunder. The Borrower expressly warrants and represents that no statements, agreements or representations, whether oral or written, have been made by the Lender, or by any employee, agent or broker of the Lender with respect to the obligation or debt evidenced by this Note. The Borrower further expressly warrants and represents that (a) no oral commitment has been made by the Lender to extend or continue any credit to the Borrower or any party other than as expressly stated herein or in those certain documents executed in connection herewith, (b) no representation or agreement has been made by or with the Lender, or any employee, agent or broker of the Lender, to forebear or refrain in any way from exercising any right or remedy in its favor hereunder or otherwise unless expressly set forth herein, and (c) the Borrower has not and will not rely on any commitment to extend or continue any credit, nor on any agreement to forebear or refrain from exercising rights or remedies unless such commitment or agreement shall be in writing and duly executed by an authorized officer of the Lender. Whenever possible, each provision of this Note shall be interpreted in such a manner as to be effective and valid under applicable law, but if any provision hereof shall be prohibited by or invalid or unenforceable under the applicable law of any jurisdiction with respect to any Person or circumstance, such provision shall be ineffective to the extent of such prohibition, invalidity or unenforceability, without invalidating the remaining provisions hereof or affecting the validity or enforceability of such provisions in any other jurisdiction or with respect to other Persons or circumstances. To the extent permitted by applicable law, the parties hereto hereby waive any provision of law that renders any provision hereof prohibited, invalid or unenforceable in any respect. In the event any one or more of the provisions contained in this Note should be invalid, illegal or 6
unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby. This Note shall bind the respective successors, heirs or representatives of the Borrower. This Note shall not be assigned by the Borrower without the Lender's prior written consent. The Lender, however, may assign its rights hereunder without any notice to, or consent from, the Borrower or any guarantor hereof. The term "the Lender" as used herein shall be deemed to include the Lender and its successors and assigns, and/or Capital One, N.A., Capital One Bank or and any holder hereof. THE BORROWER HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY STATE COURT IN THE STATE OF NEW YORK OR THE UNITED STATES DISTRICT COURT SITTING IN EITHER THE SOUTHERN OR EASTERN DISTRICT OF NEW YORK, SAID VENUE BEING CHOSEN IN THE SOLE AND ABSOLUTE DISCRETION OF THE LENDER IN ANY ACTION, SUIT OR PROCEEDING BROUGHT AGAINST IT AND RELATED TO OR IN CONNECTION WITH THIS NOTE OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY AND CONSENTS TO THE PLACING OF VENUE IN ANY STATE COURT IN THE STATE OF NEW YORK, OR EITHER U.S. DISTRICT COURT AS AFORESAID. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE BORROWER HEREBY WAIVES AND AGREES NOT TO ASSERT BY WAY OF MOTION, AS A DEFENSE OR OTHERWISE, IN ANY SUCH SUIT, ACTION OR PROCEEDING ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF SUCH COURTS, THAT THE SUIT, ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM, THAT THE VENUE OF THE SUIT, ACTION OR PROCEEDING IS IMPROPER, OR THAT THIS NOTE OR ANY OTHER DOCUMENT OR INSTRUMENT REFERRED TO HEREIN MAY NOT BE LITIGATED IN OR BY SUCH COURTS. THE BORROWER AGREES THAT SERVICE OF PROCESS MAY BE MADE UPON IT BY CERTIFIED OR REGISTERED MAIL TO ITS ADDRESS SET FORTH BELOW OR SUCH OTHER ADDRESS THAT THE BORROWER SHALL HAVE NOTIFIED THE LENDER IN WRITING OR ANY METHOD AUTHORIZED BY THE LAWS OF THE STATE OF NEW YORK. EXCEPT AS PROHIBITED BY LAW, THE BORROWER HEREBY WAIVES 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 NOTE AND FURTHER WAIVES OFFSET AND COUNTERCLAIM WITH RESPECT TO ANY ACTION ARISING OUT OF THIS NOTE. This Note may not be modified or terminated orally, This Note shall be governed by the laws of the State of New York without regard to its conflict of laws rules. The Lender may accept partial payments marked "in full" without waiving any of its rights hereunder. Any payments made after maturity or acceleration will not reinstate the Note. Borrower (and the undersigned representative of Borrower, if any) represents and warrants that it has full power and authority to execute and deliver this Note, and the execution and delivery of this Note has been duly authorized and does not conflict with or constitute a default under any law. judicial order or other agreement affecting Borrower. The capitalized terms set forth in this Note and not otherwise defined herein shall have the definitions set forth in the Loan Agreement. 7
Section headings used herein are for convenience of reference only and are not to affect the construction of or be taken into consideration in interpreting this Note. Time shall be of the essence in the performance of all obligations of Borrower hereunder. This Second Amended and Restated Revolving Advised Line of Credit Promissory Note amends, restates and supersedes (i) that certain Revolving Advised Line of Credit Promissory Note in the principal sum of $80,000,000.00 made by the Borrowers jointly and severally in favor of the Lender dated as of April 6, 2012 (the "First Note") ; and (ii) that certain Amended and Restated Revolving Advised Line of Credit Promissory Note in the principal sum of $80,000,000.00 made by the Borrowers jointly and severally in favor of the Lender dated as of October 1, 2012 (the "Second Note") and is made pursuant to, and in conjunction with, a Modification Agreement by and amongst the Borrowers and Lender dated as of the Effective Date (the "Modification Agreement"). This Note replaces the First Note and the Second Note and is entitled to all of the benefits of the First Note and the Second Note and any other prior notes and all of the collateral therefore and all rights and benefits of the First Note and the Second Note. The recitations, covenants, terms and conditions of this Note shall control in the event of conflict between the terms and conditions hereof and those set forth in any note consolidated and restated hereby. All references to the "Note" or any other instrument evidencing the indebtedness secured by the Collateral or guarantees in any Loan Document shall be deemed to refer to this Note. IN WITNESS WHEREOF, the undersigned has executed and delivered this Note on July 31 2013 and effective as of the Effective Date. TRANSIT FUNDING ASSOCIATES LLC, Borrower by: Patton Corrigan, a Manager (CW79 Borrower's Address: 3351 W. Addison Chicago, Illinois 60618 State of New York County of New York ) ss.: On July 2013, before me, the undersigned, personally appeared Patton Corrigan personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed same in his capacity, and that by his signature in the instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument. N ubl State of New York EVELYN FIGUEROA Notary Public, State of New York No. 31-4987750 Qualified in New York Cou ty Commission Expires