Exhibit 10.2
November 1, 2004
Elk Associates Funding Corporation ("Borrower")
747 Third Avenue, 4th Floor
New York, New York 10017
Attn: Mr. Gary Granoff, President
Dear Mr. Granoff:
Reference is made to promissory note dated November 1, 2004 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 first paragraph of 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 November 1, 2004
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: /s/ Iris Schechter
--------------------------
Iris Schechter, Vice President
Consented and Agreed to:
ELK ASSOCIATES FUNDING CORPORATION
By: /s/ Gary Granoff
-----------------------
Gary Granoff, President
By: /s/ Margaret Chance
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Margaret Chance, Vice President
and Secretary
"THIS NOTE SUPERSEDES AND REPLACES THAT CERTAIN PROMISSORY NOTE (GRID) DATED
February 2, 2004 IN THE ORIGINAL PRINCIPAL AMOUNT OF $8,000,000.00."
PROMISSORY NOTE (GRID)
New York, N.Y. November 1, 2004 $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 January 3, 2005.
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)* 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 event 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 Event of Default.
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* "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 the 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 a "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 = ---------------------------------
(Reserve Adjusted) 1.00 - Libor Reserve Percentage
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 for this Note shall begin on the day of the
initial draw down under the Note, and each subsequent 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 error. 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 herein over (ii) the
amount of interest that otherwise would have accrued to 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 the 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 that 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
made 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 force 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 received by the Bank
which are attributable to such Libor Rate (Reserve Adjusted)-based loan. In
determining which costs incurred by the Bank and/or reductions in amounts
received by the Bank
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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 Liabilities (as hereinafter defined) of maker to the Bank
are due at any time 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 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 on 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 or permitted 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 hereinafter 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 now 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 now 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 and 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 obligations, 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 in connection with any
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 in the 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
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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 hoder 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 all of his their or its
obligations; the suspension of business; the making of an assignment for the
benefit of creditors, or appointment of a trustee, receiver or liquidator for
the maker, endorser or guarantor or for any of his, its or their property, or
the commencement of any proceedings by the maker, endorser or 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 undischarged for a period of 30 days; the sending of
notice of an intended bulk sale; the entry of judgments 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 of the makers and endorsers hereof to
the Bank or holder hereof, whether due or not due and whether direct or
contingent and however 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 than 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 attorneys'
fee shall be paid in addition, which fees shall be computed as follows: 15% of
the principal, interest and all other sums due and owing to the payee or holder
or the reasonable value of the attorneys' 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 over any matter
connected with this Note or resulting from the 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 CORPORATION
By: /s/ Gary Granoff
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Gary Granoff, President
By: /s/ Margaret Chance
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Margaret Chance, Vice President
and secretary
(Address)
747 Third Avenue
New York, New York 10017
Value Received
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