bank leumi USA
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January 15, 2000
Elk Associates Funding Corporation ("Borrower")
747 Third Avenue
New York, NY 10017
Attn: Mr. Gary Granoff, President
Dear Mr. Granoff:
Reference is made to promissory note dated January 15, 2000 in the
principal amount of $8,000,000.
You have agreed that for good and valuable consideration including but not
limited to the extension and increase of credit accommodations to Borrower, in
the amount of $8,000,000 that letter agreement dated January 20, 1998, shall
continue to be in full force and effect with respect to credit accommodations
now or in the future outstanding to Borrower.
You have agreed that the fist paragraph os such letter is modified to
provide as follows:
"In order to induce you to make and/or continue loans for the account of
the undersigned pursuant to Promissory Note (Grid) dated January 15,
2000, as such note is hereafter modified, extended, renewed or replaced
with other notes, the Borrower will, and will cause each affiliate and
subsidiary (to the extent applicable) to:".
Please confirm your agreement to the foregoing by signing and returning a
copy of this letter to the undersigned.
Very truly yours,
BANK LEUMI USA
By:________________________________
Fran Davis, Vice President
By:________________________________
Iris Schechter, Vice President
Consented and agreed to
ELK ASSOCIATES FUNDING CORPORATION
By:____________________________
Gary Granoff, President
By:____________________________
Margaret Chance, Secretary
"THIS NOTE SUPERSEDES, REPLACES AND INCREASES THE PRINCIPAL AMOUNT OF THAT
CERTAIN PROMISSORY NOTE (GRID) DATED SEPTEMBER 13, 1999 IN THE ORIGINAL
PRINCIPAL AMOUNT OF $8,000,000.00"
PROMISSORY NOTE (GRID)
New York, N.Y. January 15, 2000 $8,000,000
For value received, ELK ASSOCIATES FUNDING CORP. promises to pay to the
order of BANK LEUMI USA (the "Bank"), at its offices at 579 Fifth Avenue, New
York, New York, the principal sum of Eight Million Dollars ("Maximum Principal
Amount") or, if less, the aggregate unpaid principal sum of all loans made by
the Bank, in its sole discretion, to the maker of this Note from time to time.
The principal sum of each such loan shall be payable November 1, 1999.
Within the limits of the Maximum Principal Amount, the maker may borrow,
prepay, and reborrow in the manner provided herein.
Each loan shall bear interest (from the date of such loan), at the option
of the maker, at a rate per annum which shall be equal to (a) the rate of
interest designated by the Bank, and in effect from time to time, as its
"Reference Rate" minus 1/2% per annum, adjusted when said Reference Rate changes
(the maker acknowledges that the Reference Rate may not necessarily represent
the lowest rate of interest charged by the Bank to customers) or (b) 1 1/2% per
annum above the Libor Rate (Reserve Adjusted)(1)
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(1)"Libor Rate means, relative to any Interest Period (hereinafter defined)
for loans made pursuant to this Note and which bear interest at the "Libor Rate
(Reserve Adjusted), the rate of interest per annum determined by the Bank to be
the arithmetic mean (rounded upward to the next 1/16th of 1%) of the rates of
interest per annum at which dollar deposits in the approximate amount of the
amount of the loan to be made or continued hereunder by the Bank and having a
maturity comparable to such Interest Period would be offered to the Bank in the
London Interbank market at its request at approximately 11:00 a.m. (London time)
two Business Days prior to the commencement of such Interest Period.
"Libor Reserve Percentage" means, relative to any Interest Period for loans
hereunder, the percentage (expressed as a decimal, rounded upward to the next
1/100th of 1%) in effect on such day (whether or not applicable to the Bank)
under regulations issued from time to time by the Federal Reserve System Board
for determining the maximum reserve requirement (including any emergency,
supplemental or other marginal reserve requirement) with respect to Eurocurrency
funding (currently referred to as "Eurocurrency Liabilities" in Regulation D of
the Federal Reserve System Board).
"Libor Rate (Reserve Adjusted)" means, relative to any loan to be made or
continued hereunder for any Interest Period, the rate of interest per annum
(rounded upwards to the next 1/16th of 1%) determined by the Bank as follows:
Libor Rate = Libor Rate
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(Reserve Adjusted) 1.00 - Libor Reserve Percentage
for a one, two or three month term, as elected by the maker and calculated by
the Bank, in the manner hereinafter provided, but in no event in excess of the
maximum rate permitted by applicable law; provided, that in the even the Bank
shall have determined that by reason of circumstances affecting the Libor Rate
(Reserve Adjusted) adequate and reasonable means do not exist for ascertaining
the Libor Rate (Reserve Adjusted) for any Interest Period, the applicable rate
of interest during such Interest Period shall be equal to its Reference Rate
minus 1/2% per annum adjusted when said Reference Rate changes, but in no event
in excess of the maximum rate permitted by law; further provided that if, at the
end of any Interest Period, the maker has failed to timely notify the Bank of
its election of the choice of interest rate for or length of the next Interest
Period, then the interest rate in effect thereafter shall be at the Libor Rate
(Reserve Adjusted) plus 1 1/2% per annum for an Interest Period the length of
which shall be the same length as the immediately preceding Interest Period
unless such Interest Period would end after the stated maturity date of this
Note, in which case the Interest Period shall be of a duration equal to the next
longest Interest Period which would end prior to such scheduled maturity date,
provided further that no Libor Rate (Reserve Adjusted)-based loan shall be made
less than one month before the stated maturity date of this Note or after the
occurrence and continuance of an Event of Default or an event which, upon
notice, passage of time or both would constitute an Even of Default. Interest
hereunder shall be payable on the last day of each Interest Period and at
maturity (whether by acceleration or otherwise). The term "Interest Period" as
used in this Note shall mean a period of one, two or three month(s), as elected
by the maker by written or facsimile notice to the Bank given not later than
12:00 noon three Business Days prior to the commencement of an Interest Period.
No Interest Period shall extend beyond the stated maturity date of this Note.
The initial Interest Period shall begin on the last day of the immediately
preceding Interest Period. The Bank shall give notice to the maker of the
interest rate determined for each interest Period as provided herein, and such
notice shall be conclusive and binding upon the maker for all purposes absent
manifest effort. The maker shall pay to the Bank to compensate it for any loss,
cost or expense that the Bank determines is attributable to any prepayment of a
loan made by the Bank to the maker using the Libor Rate (Reserve Adjusted). Such
compensation shall include an amount equal to the excess (if any) of (i) the
amount of interest that otherwise would have accrued on the principal amount so
prepaid for the period from the date of such prepayment to the last day of the
then current Interest Period for such loan at the applicable rate of interest
for such loan provided for herein over (ii) the amount of interest that
otherwise would have accrued on such principal amount at a rate per annum equal
to the interest component of the amount the Bank would have bid in The London
Interbank market for dollar deposits of leading banks in amounts comparable to
such principal amount and with maturities comparable to such period (as
reasonably determined by the Bank). The term "Business Day" shall mean any day
of the year on which the Bank is open for business (as required or permitted by
law or otherwise) and on which dealings in U.S. dollar deposits are carried on
in London, England.
If any law, treaty, rule, regulation or determination of a court or
governmental authority or any change therein or in the interpretation or
application thereof (each, a "Change in Law") shall make it unlawful for the
Bank to make Libor Rate (Reserve Adjusted)-based loans, or to maintain interest
rates based on Libor, then in the former event, any obligation of the Bank
contained herein or in any agreement of the Bank to make available such unlawful
Libor Rate (Reserve-Adjusted)-based loans shall immediately be cancelled, and in
the latter event, any such unlawful Libor Rate (Reserve Adjusted)-based loans
then outstanding shall be converted, at the Bank's option, so the interest on
the outstanding principal balance subject hereto is determined in relation to
the Reference Rate as hereinabove provided; provided however, that if any such
Change in Law shall permit any Libor Rate (Reserve Adjusted)-based loans to
remain in effect until the expiration of the Interest Period applicable thereto,
then such permitted Libor Rate (Reserve
Adjusted)-based loans shall continue in effect until the expiration of such
Interest Period. Upon the occurrence of any of the foregoing events, maker shall
pay to the Bank immediately upon demand such amounts as may be necessary to
compensate the Bank for any fines, fees, charges, penalties or other costs
incurred or payable by the Bank as a result thereof and which are attributable
to any Libor Rate (Reserve Adjusted) options make available to maker hereunder,
and any reasonable allocation made by the Bank among its operations shall be
conclusive and binding upon maker.
If any Change in Law or compliance by the Bank with any request or
directive (whether or not having the for of law) from any central bank or other
governmental authority shall:
(A) subject the Bank to any tax, duty or other charge with respect to any
Libor Rate (Reserve Adjusted) options, or change the basis of taxation
of payments to the Bank of principal, interest, fees or any other
amount payable hereunder (except for changes in the rate of tax on the
overall net income of the Bank); or
(B) impose, modify or hold applicable any reserve, special deposit,
compulsory loan or similar requirement against assets held by,
deposits or other liabilities in or for the account of, advances or
loans by, or any other acquisition of funds by any office of the Bank;
or
(C) impose on the Bank any other condition;
and the result of any of the foregoing is to increase the cost to the Bank of
making, renewing or maintaining any Libor Rate (Reserve Adjusted)-based loan
hereunder and/or to reduce any amount receivable by the Bank in connection
therewith, then in any such case, maker shall pay to the Bank immediately upon
demand such amounts as may be necessary to compensate the Bank for any
additional costs incurred by the Bank and/or reductions in amounts received by
the Bank are attributable to any Libor Rate (Reserve Adjusted)-based loan made
to maker hereunder, any reasonable allocation made by the Bank among its
operations shall be conclusive and binding upon maker.
The Bank is hereby authorized to enter on the schedule attached hereto the
amount of each loan and each payment of principal thereon, without any further
authorization on the part of the maker or any endorser or guarantor of this
Note, but the Bank's failure to make such entry shall not limit or otherwise
affect the obligations of the maker or any endorser or guarantor of this Note.
In the event that any other Liabilities (as hereinafter indicated) of maker to
the Bank are due at anytime that the Bank receives a payment from maker on
account of this Note or any such other liabilities of maker, the Bank may apply
such payments to amounts due under this Note or any such other Liabilities in
such manner as the Bank, in its discretion, elects, regardless of any
instructions from the maker to the contrary.
The maker and each endorser and guarantor of this Note acknowledge and
agree that the use of this form of Note is for their convenience, and there is
no obligation on the part of the Bank to make loans to the maker whatsoever.
Interest shall be computed on the basis of a 360-day year.
Each maker or endorser authorizes (but shall not require) the Bank to debit
any account maintained by the maker or endorser with the Bank, at any date on
which the payment of principal or of interest an any of the Liabilities is due,
in an amount equal to any unpaid portion of such payment. If the time for
payment of principal of or interest on any of the Liabilities or any other money
payable hereunder or with respect to any of the Liabilities becomes due on a day
on which the Bank's offices are
closed (as required by law or otherwise), such payment shall be made on the next
succeeding business day, and such extension shall be included in computing
interest in connection with such payment. All payments by any maker or endorser
of this Note on account of principal, interest or fees hereunder shall be made
in lawful money of the United States of America, in immediately available funds.
All Property (as hereafter defined) held by the Bank shall be subject to a
security interest in favor of the Bank or holder hereof as security for any and
all Liabilities. The term "Property" shall mean the balance of every deposit
account of the maker with the Bank or any of the Bank's nominees or agents and
all other obligations of the Bank or any of its nominees or agents to the maker,
whether not existing or hereafter arising, and all other personal property of
the maker (including without limitation all money, accounts, general
intangibles, goods, instruments, documents and chattel paper) which, or evidence
of which, are not or at any time in the future shall come into the possession or
under the control of or be in transit to the Bank or any of its' nominees or
agents for any purpose, whether or not accepted for the purposes for which it
was delivered. The term "Liabilities" shall mean the indebtedness evidenced by
this note and all other indebtedness, liabilities or obligations of any kind of
the maker (or any partnership or other group of which the maker is a member) to
(a) the Bank, (b) any group of which the bank is a member, or (c) any other
person if the Bank has a participation or other interest in such indebtedness,
liabilities or obligation, whether (i) for the Bank's own account or as agent
for others, (ii) acquired directly or indirectly by the Bank from the maker or
others, (iii) absolute or contingent, joint or several, secured or unsecured,
liquidated or unliquidated, due or not due, contractual or tortious, now
existing or hereafter arising, or (iv) incurred by the maker as principal,
surety, endorser, guarantor or otherwise, and including without limitation all
expenses, including attorneys' fees, incurred by the Bank i connection with any
such indebtedness, liabilities or obligations or any of the Property (including
any sale or other disposition of the Property).
Upon the happening, with respect to any maker, endorser or guarantor of
this Note or any assets of any such maker, endorser or guarantor, of any of the
following events (each an "Event of Default"): death of the maker, endorser or
guarantor or any member of the maker, endorser or guarantor (if a partnership);
the failure to furnish the Bank with any requested information or failing to
permit inspection of books or records by the Bank or any of its agents; the
making of any misrepresentation to the Bank in obtaining credit for any of them;
dissolution (if a corporation or partnership); the making of a mortgage or
pledge; the commencement of a foreclosure proceeding; default in the payment of
principal or interest on this Note or int eh payment of any other obligation of
any said maker, endorser or guarantor held by the Bank or holder hereof or in
the performance or observance of any covenant or agreement contained in the
instrument evidencing such obligation; default in the payment of principal of or
interest on any indebtedness for borrowed money owed to any other person or
entity (including any such indebtedness in the nature of a lease) or default in
the performance or observance of the terms of any instrument pursuant to which
such indebtedness was created or is secured, the effect of which default is to
cause or permit any holder of any such indebtedness to cause the same to become
due prior to its stated maturity (and whether or not such default is waived by
the holder thereof); a change in the financial condition or affairs of any of
them which in the opinion of the Bank or subsequent holder hereof materially
reduces his, their or its ability to pay his, their or its obligation; the
suspension of a business; the making of an assignment for the benefit of
creditors, of the appointment of a trustee, receiver or liquidator for the
maker, endorser or guarantor or for any guarantor under any bankruptcy,
reorganization, arrangement of debt, insolvency, readjustment of debt,
receivership, liquidation or dissolution law or statute (including, if the
maker, endorser or guarantor is a partnership, its dissolution pursuant to any
agreement or statute), or the commencement of any such proceedings without the
consent of the maker, endorser or guarantor, as the case may be, and such
proceedings shall continue discharges for a period of 30 days; the sending of
notice of an intended bulk sale; the entry of judgements or any attachment, levy
or execution against any of his, their or its properties shall not be released,
discharged,
dismissed, stayed or fully bonded for a period of 30 days or more after its
entry, issue or levy, as the case may be; or the issuance of a warrant of
distraint or assertion of a lien for unpaid taxes, this Note, if not then due or
payable on demand , shall become due and payable immediately without demand or
notice and all other debts or obligations or the makers and endorsers hereof to
the bank of holder hereof, whether due or not due and whether direct or
contingent and howsoever evidenced, shall, at the option of the Bank or holder
hereof, also become due and payable immediately without demand or notice. After
this Note becomes due, at stated maturity or on acceleration, any unpaid balance
hereof shall bear interest from the date it becomes due until paid at a rate per
annum 3% above the rate borne by this Note when it becomes due or, if such rate
shall not be lawful with respect to the undersigned, then at the highest lawful
rate. The liability of any party to commercial paper held by the bank or holder
hereof, other thank the makers and endorsers hereof, shall remain unaffected
hereby and such parties shall remain liable thereon in accordance with the
original tenor thereof. Each maker and endorser agrees that if an attorney is
retained to enforce or collect this Note or any other obligations by reason of
non-payment of this Note when due or made due hereunder, a reasonable attorney's
fee shall be paid in addition, which fees shall be as follows: 15% of the
principal,interest and all other sums due and owing to the payee or holder of
the reasonable value of the attorney's services, whichever is greater.
This Note shall be governed by the laws of the State of New York and shall
be binding upon the maker and each endorser and the maker's and each endorser's
heirs, administrators, successors and assigns. The maker and each endorser
hereby irrevocably consent to the jurisdiction of any New York State or Federal
court located in New York City over any action or proceeding arising out of any
dispute between the maker and each endorser and the Bank, and the maker further
irrevocably consents to the service of process in any such action or proceeding
by the mailing of a copy of such process to the maker at the address set forth
below. In the event of litigation between the Bank and the maker of nay matter
connected with this Note or resulting from transactions hereunder, the right to
a trial by jury is hereby waived by the Bank and the maker. The maker also
waives the right to interpose any set-off or counterclaim of any nature. The
Bank or any holder may accept late payments, or partial payments, even though
marked "payment in full" or containing words of similar import or other
conditions, without waiving any of its rights. no amendment, modification or
waiver of any provision of this Note nor consent to any departure by maker
therefrom shall be effective, irrespective of any course of dealing, unless the
same shall be in writing and signed by the Bank, and then such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given.
The rights and remedies of the Bank provided for hereunder (including but
not limited to the right to accelerate Liabilities of maker and to realize on
any security for any such Liabilities) are cumulative with the rights and
remedies of the Bank available under any other instrument or agreement or under
applicable law.
The undersigned, if more than one, shall be jointly and severally liable
hereunder.
ELK ASSOCIATES FUNDING CORP.
By:
Gary Granoff, President
By:
Margaret Chance, Secretary
(Address)
747 Third Avenue
New York, New York 10017
VALUE RECEIVED