BANK INTERCREDITOR AGREEMENT
ELK ASSOCIATES FUNDING CORPORATION (the "Debtor") from time
to time incurs obligations, direct, indirect and/or contingent including
principal, interest, charges relating thereto and fees and expenses in
connection therewith ("Obligations") to each of Bank Hapoalim, B.M., Bank Leumi
Trust Company of New York, Israel Discount Bank of New York and Extebank (each,
individually a "Creditor" and collectively, the "Creditors"), some or all of
which Obligations are or may be secured, either wholly or partially, by
Collateral (as hereinafter defined) granted to each Creditor by the Debtor under
various agreements. Each Creditor has filed or may file a financing statement
("Financing Statement") under the Uniform Commercial Code as adopted in the
State of New York. The Creditors desire to agree among themselves as to the
relative priority of their respective security interests in Collateral. It is
hereby agreed as follows:
1. "Collateral" means all personal property and fixtures of
the Debtor, whether now or hereafter existing or now owned or hereafter acquired
and wherever located, of every kind and description, tangible or intangible,
including, but not limited to, all goods, equipment, inventory, documents,
instruments, chattel paper, accounts, contract rights, general intangibles,
notes and other instruments and all other rights to the payment of money arising
out of the Debtor's providing financial services, any collateral securing
payment of the foregoing (including security interests in New York City tax
medallions) and including the products and proceeds thereof and accessions
thereto, constituting security for obligations of the Debtor, whether direct or
indirect, liquidated or contingent. Collateral shall also include any and all
deposits or other sums at any time credited by or due from a Creditor to the
Debtor and any monies or securities and other property of the Debtor held or
received by a Creditor.
2. Borrower hereby acknowledges and confirms by its execution
below that each and every Creditor is and has been granted a security interest
in all of the Collateral.
3. "General Security Interest" means any perfected and
enforceable security interest of a Creditor in any Collateral however arising,
including purchase money security interests.
4. The General Security Interest of each Creditor in any
Collateral ranks equally in priority with the General Security Interest of each
other Creditor in the same Collateral. Any Collateral, or proceeds thereof,
received at any time or from time to time by any of the Creditors shall be
shared by all of the Creditors, and applied to the payment of the then
outstanding Obligations, pro rata in accordance with the outstanding amounts of
Obligations owed by the Debtor to each Creditor. Without limiting the generality
of the foregoing, notes payable to Debtor and held by any Creditor shall be
deemed to be subject to a General Security Interest for the benefit of all the
Creditors to be shared on a pro rata basis. For the purposes of perfecting such
General Security Interest, the possession of notes by
any Creditor shall be deemed to be possession of the notes by all of the
Creditors. Each Creditor agrees that any such note shall be endorsed as
collateral security to the order of the Creditor holding the note as Custodian
for itself and all Lenders party to a Custodian Agreement dated September 9,
1993 and be held pursuant to the terms thereof.
5. The priorities specified herein shall be applicable
irrespective of the time or order of attachment or perfection of any Creditor's
security interest or the time or order of filing of Financing Statements or the
giving or failure to give notice of the acquisition or expected acquisition of
purchase money or other security interests.
6. The priorities provided herein shall not be altered or
otherwise affected by any amendment, modification, supplement, extension,
renewal, restatement or refinancing of any Obligation of Debtor to any Creditor,
nor by any action or inaction which any Creditor may take or fail to take with
respect to any Collateral.
7. Subject to the provisions of paragraph 3 hereof, each
Creditor shall have the right to manage, perform and enforce the terms of its
respective agreements with Debtor with respect to Collateral and to exercise and
enforce all privileges and rights thereunder according to its discretion and the
exercise of its business judgment including, without limitation, the exclusive
right to take or retake control or possession of the Collateral and to hold,
prepare for sale, process, sell, lease, dispose of, or liquidate the Collateral.
8. All of the Creditors acknowledge that this Agreement shall
constitute notice of each of their respective security interests in the
Collateral as provided by Section 9-504 of the New York Uniform Conunercial
Code.
9. This Agreement shall terminate ten (10) days after the
date that all Creditors receive written notice at the address specified on the
signature page for such Creditor and in the manner set forth below of a
Creditor's intention to terminate. Termination shall not impair any General
Security Interest theretofore acquired by any Creditor or affect the priorities
thereof or the sharing of Collateral and any proceeds hereunder.
10. All notices permitted or required to be given or among
the Creditors under this Agreement shall be in writing and shall be deemed to be
duly given if given personally with receipt acknowledged or sent by registered
or certified mail, return receipt requested, or via facsimile, with a
confirmation sent by registered or certified mail, or by overnight courier for
next day delivery, addressed to the parties at their addresses or facsimile
numbers set forth below, unless notice in writing is given of a change of
address or telecopy number in the manner set forth herein, in which case notices
shall be sent to the new address or telecopy number as designated. Notice of
change of address or telecopy number shall be deemed given when actually
received
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or upon refusal to accept delivery thereof; all other notices shall be deemed
given and received on the earlier of (a) when actually received or upon refusal
to accept delivery thereof, or (b) on the date personally delivered, one day
after being sent by telecopy or overnight courier and four days after mailing,
as aforesaid.
11. This Agreement shall be governed by the laws of the
State of New York. Unless the context otherwise requires all terms used herein
and not otherwise defined herein which are defined in the Uniform Commercial
Code shall have the meanings therein stated.
12. This Agreement is solely for the benefit of the
Creditors and their successors or assigns and no other person or persons shall
have any right, benefit, priority or interest under, or because of the existence
of, this Agreement. This Agreement shall not be amended, nor any provisions
hereof waived without the prior written consent of all the parties hereto.
13. This Agreement may be executed in several counterparts,
each of which shall be deemed an original. All such counterparts shall together
constitute one and the same instrument.
14. Each Creditor agrees that it will give written notice to
each of the other Creditors at the respective addresses below and in the manner
set forth herein upon the declaration of an event of default under the security
agreements between each of the Creditors and the Debtor with respect to any
Obligation owed by the Debtor to it and before giving such Debtor any
instructions with respect to the Collateral or taking any actions with respect
to the Collateral.
IN WITNESS WHEREOF, each Creditor has caused this Agreement
to be duly executed the 9th day of September 1993.
ISRAEL DISCOUNT BANK OF NEW YORK BANK LEUMI TRUST COMPANY OF NEW YORX
Address: 000 Xxxxx Xxxxxx Address: 000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Fax No: 212/000-0000 Fax No:212/000-0000
By: /s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxxx
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Title: Vice President Title: Vice President
By: /s/ Xxxx X. Xxxxxxx By: /s/ Xxxxxx Xxxxxxxxx
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Title: Vice President Title: Vice President
EXTEBANK BANK HAPOALIM, B.M.
Address: 1001 Avenue of the Americas Address: 00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Fax No: 212/000-0000 Fax No: 212/000-0000
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxx XXXXXXXXXX
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Title: Assistant Vice President Title: Vice President
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ACKNOWLEDGED AND AGREED:
ELK ASSOCIATES FUNDING CORPORATION
By: /s/ Xxxx X. Xxxxxxx
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