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") and EUROPEAN AMERICAN BANK ("EAB").
W I T N E S S E T H:
WHEREAS, IDB, EB, BL and BH previously entered into a bank intercreditor
agreement dated September 9, 1993 which is attached hereto as Exhibit A (the
"Bank Intercreditor Agreement") relating to certain obligations of Elk
Associates Funding Corporation (the "Debtor"); and
WHEREAS, the Debtor 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 Debtor has entered into a loan agreement with EAB; and
WHEREAS, the parties desire to remove the Former Banks as parties to the
Bank Intercreditor Agreement and to make EAB a party to the Bank Intercreditor
Agreement;
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 Bank Intercreditor Agreement.
(a) Effective as of the date hereof, the Bank Intercreditor Agreement is
hereby amended in order to remove EB as a party to the Bank Intercreditor
Agreement. Accordingly, EB is hereby relieved of all obligations and shall no
longer have any rights or be entitled to any benefits as a Creditor (as that
term is defined in the Bank Intercreditor Agreement) pursuant to the terms of
the Bank Intercreditor Agreement.
(b) Effective upon the payment by Debtor to BH in an amount necessary to
satisfy in full all obligations due from Debtor to BH under Debtor's loan
agreement with BH, BH shall be removed as a party to the Bank Intercreditor
Agreement. BH shall thereafter be relieved of all obligations and shall no
longer have any rights or be entitled to any benefits as a Creditor (as that
term is defined in the Bank Intercreditor Agreement) pursuant to the terms of
the Bank Intercreditor Agreement.
2. Admission of EAB as a Party to the Bank Intercreditor Agreement. Effective as
of the date hereof, the Bank Intercreditor Agreement is hereby amended in order
to admit EAB as a party to the Bank Intercreditor Agreement. Accordingly, EAB
shall be bound by the terms of the Bank Intercreditor Agreement and shall assume
all of the obligations and be entitled to any and all rights and benefits as a
Creditor (as that term is defined in the Bank Intercreditor Agreement) pursuant
to the terms of the Bank Intercreditor Agreement.
3. Continuation Agreements. The Bank Intercreditor Agreement 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
Bank Intercreditor Agreement and the admission of EAB as a party to the Bank
Intercreditor Agreement.
5. Notices.
EAB's address for notice or other communication in connection with the Bank
Intercreditor Agreement shall be:
European American Bank
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxx, Vice 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.
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.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first written above.
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/ Xxxxx Xxxxxxx
-------------------------------
Name: Xxxxx Xxxxxxx
Title: Assistant Vice President
By: /s/ Xxxx Vanderke
-------------------------------
Name: Xxxx Vanderke
Title: Vice President
EXTEBANK
By: /s/ Xxxxxxx Xxxxx
-------------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
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EUROPEAN AMERICAN BANK
By: /s/ Xxxxxx Xxxxxxxxx
-------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Assistant Vice President
ACKNOWLEDGED AND AGREED:
ELK ASSOCIATES FUNDING CORPORATION
By: /s/ Xxxx X. Xxxxxxx
-------------------------------
Name: Xxxx X. Xxxxxxx
Title: President
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EXHIBIT A - filed as Exhibit k.5 to Registration Statement
