AGREEMENT
THIS AGREEMENT made as of 28th day of September, 1994 by and among ISRAEL
DISCOUNT BANK OF NEW YORK ("IDB"), EXTEBANK ("EB"), BANK LEUMI TRUST COMPANY OF
NEW YORK ("BL"), BANK HAPOALIM B.M. ("BH"), EUROPEAN AMERICAN BANK ("EAB"), the
U.S. SMALL BUSINESS ADMINISTRATION (the "SBA") and ELK ASSOCIATES FUNDING
CORPORATION (the "Borrower").
W I T N E S S E T H:
WHEREAS, IDB, EB, BL, BH, the SBA and the Borrower previously entered into an
intercreditor agreement dated September 9, 1993 which is attached hereto as
Exhibit A (the "Intercreditor Agreement"); and
WHEREAS, IDB, EB, BL, BH, the SBA and the Borrower previously entered into a
custodian agreement dated September 9, 1993 which is attached hereto as Exhibit
B (the "Custodian Agreement"); and
WHEREAS, the Borrower has terminated its loan agreement with EB and is about
to terminate its loan agreement with BH (hereinafter EB and BH are sometimes
collectively referred to as the "Former Banks"); and
WHEREAS, the Borrower has entered into a loan agreement with EAB; and
WHEREAS, the parties desire to remove the Former Banks as parties to the
Custodian Agreement and the Intercreditor Agreement (collectively, the
"Agreements") and to make EAB a party to the Agreements;
NOW, THEREFORE, in consideration of the premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto mutually agree as follows:
1. Removal of Former Banks as Parties to the Agreements.
(a) Effective as of the date hereof, the Agreements are hereby amended in
order to remove EB as a party to the Agreements. Accordingly, EB is hereby
relieved of all obligations and shall no longer have any rights or be entitled
to any benefits as a Bank (as that term is defined in the Agreements) pursuant
to the terms of the Agreements.
(b) Effective upon the payment by Borrower to BH in an amount necessary
to satisfy in full all obligations due from Borrower to BH under Borrower's loan
agreement with BH, BH shall be removed as a party to the Agreements. BH shall
thereafter be relieved of all obligations and shall no longer have any rights or
be entitled to any benefits as a Bank (as that term is defined in the
Agreements) pursuant to the terms of the Agreements. Upon the satisfaction of
Borrower's obligations to BH, BH shall execute a letter substantially in the
form set forth in Exhibit A hereto, copies of which shall be delivered to all
the parties hereto.
2. Admission of EAB as a Party to the Agreements. Effective as of the date
hereof, the Agreements are hereby amended in order to admit EAB as a party to
the Agreements. Accordingly, EAB shall be bound by the terms of the Agreements
and shall assume all of the obligations and be entitled to any and all rights
and benefits as a Bank (as that term is defined in the Agreements) pursuant to
the terms of the Agreements.
3. Continuation Agreements. The Agreements shall remain in full force and effect
as modified pursuant to the terms hereof.
4. Further Assurances. The parties agree to execute any and all documents
necessary to effectuate the withdrawal of the Former Banks as parties to the
Agreements and the admission of EAB as a party to the Agreements.
5. Notices.
(a) EAB's address for notice or other communication in connection with the
Agreements shall be:
European American Bank
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxx, Vice President
Telecopy: 000-000-0000
(b) Borrower's new address for notice or other communication in connection
with the Agreements shall be:
Elk Associates Funding Corporation
000 Xxxxx Xxxxxx- 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxx, President
Telecopy: 000-000-0000
6. Governing Law. This agreement shall be governed by the laws of the state of
New York applicable to contracts made and to be performed wholly therein.
7. Headings. The headings in this Agreement are for convenience reference only
and shall not alter or otherwise affect the meaning hereof.
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8. Counterparts. This Agreement may be executed in any number of counterparts
and by the different parties hereto on separate counterparts, each of which when
so executed and delivered shall be an original, but all of which shall together
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first written above.
ELK ASSOCIATES FUNDING CORPORATION
By: /s/ Xxxx X. Xxxxxxx
-------------------------------
Name: Xxxx X. Xxxxxxx
Title: President
ISRAEL DISCOUNT BANK OF NEW YORK
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
By: /s/ Xxxxxx Xxxxxx
-------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
BANK LEUMI TRUST COMPANY
OF NEW YORK
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
By: /s/ Xxxx Xxxxxxxxx
-------------------------------
Name: Xxxx Xxxxxxxxx
Title: Vice President
BANK HAPOALIM B.M.
By: /s/ Xxxx Vanderke
-------------------------------
Name: Xxxx Vanderke
Title: xxxxxxxxxxxxxxxxxxx
By: /s/ Xxxxx Xxxxxxx
-------------------------------
Name: Xxxxx Xxxxxxx
Title: Assistant Vice President
3
EXTEBANK
By: /s/ Xxxxxxx Xxxxx
-------------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
EUROPEAN AMERICAN BANK
By: /s/ Xxxxxx X. Xxxxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Assistant Vice President
UNITED STATES SMALL BUSINESS
ADMINISTRATION
By: /s/ Xxx X. Xxxxxxxxxxx
-------------------------------
Name: Xxx X. Xxxxxxxxxxx
Title: Assoc. Admin/Invest.
EXHIBIT A - filed as Exhibit k.2 to Registration Statement
EXHIBIT B - filed as Exhibit j.1 to Registration Statement
