FORM 10-Q
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
QUARTERLY REPORT UNDER SECTION 13 or 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the quarter ended June 30, 1997 Commission file number
2-99779
National Consumer Cooperative Bank
(Exact name of registrant as specified in its charter)
United States of America 52-1157795
(12 U.S.C. Section 3001 et seq.) (I.R.S. Employer
(State or other jurisdiction of Identification No.)
incorporation or organization)
1401 Eye Street, NW, Suite 700, Washington, D.C. 20005
(Address of principal executive offices)
Registrant's telephone number, including area code (202)336-7700
Indicate by check mark whether the registrant (1) has filed
all reports required to be filed by Section 13 or 15(d) of the
Securities Exchange Act of 1934 during the preceding 12 months (or
for shorter period that the registrant was required to file such
reports), and (2) has been subject to such filing requirements for
the past 90 days.
Yes x No________.
Indicate the number of shares outstanding of each of the
issuer's classes of common stock, as of the latest practicable
date.
Outstanding at June 30, 1997
Class C 217,531
(Common stock, $100.00 par value)
Class B 784,060
(Common stock, $100.00 par value)
Class D 3
(Common stock, $100.00 par value)
<PAGE>
National Consumer Cooperative Bank
(doing business as National Cooperative Bank)
and Subsidiaries
INDEX
PART I FINANCIAL INFORMATION Page No.
Item 1 Consolidated balance sheets -
June 30, 1997 and December 31, 1996..... 3
Consolidated statements of income - for
the three and six months ended June 30,
1997 and 1996........................... 4
Consolidated statements of cash flows -
for the six months ended June 30, 1997
and 1996................................ 5-6
Condensed notes to the consolidated
financial statements - June 30, 1997.... 7-10
Item 2 Management discussion and analysis of
financial condition and results of operations
- for the three and six months ended June 30,
1997 and 1996................................ 11-21
PART II OTHER INFORMATION
Item 2 Changes in Securities......................... 22
Item 6 Exhibits and Reports on Form 8-K.............. 22
Exhibit 10.5 - Third Amended and Restated
Loan Agreement with Fleet Bank as Agent
Exhibit 10.8 - Master Shelf Agreement with
Prudential Insurance Co. of America et al
(June 1997)
Exhibit 27 - Financial Data Schedule
NATIONAL COOPERATIVE BANK
CONSOLIDATED BALANCE SHEETS
June 30, 1997 and December 31, 1996
(Unaudited)
1997 1996
Assets
Cash and cash equivalents $ 29,065,080 $ 17,150,534
Restricted cash 8,348,703 8,348,703
Investment securities
Available-for-sale 32,538,798 30,337,100
Held-to-maturity 2,795,783 2,946,425
Loans and lease financing 597,173,872 565,824,579
Loans held for sale 161,805,300 184,269,872
Less: Allowance for loan losses (16,882,700) (15,504,510)
742,096,472 734,589,941
Excess servicing 30,230,415 30,758,057
Premises and equipment, net 2,093,835 2,257,362
Other assets 10,783,376 12,947,458
Total assets $857,952,462 $839,335,580
Liabilities and Members' Equity
Liabilities
Deposits $ 79,890,436 $ 88,620,002
Patronage dividends payable in cash 6,800,765 4,721,600
Other liabilities 13,938,112 11,332,033
Borrowings
Short-term 223,700,000 224,500,000
Long-term 222,747,210 202,137,077
446,447,210 426,637,077
Subordinated debt 182,818,155 182,853,313
Total borrowings 629,265,365 609,490,390
Total liabilities 729,894,678 714,164,025
Members' equity
Common stock
Class B 78,406,021 78,600,416
Class C 21,753,074 21,751,584
Class D 300 300
Retained earnings
Allocated 8,320,163 5,770,844
Unallocated 19,682,724 19,113,185
Unrealized loss on investment
securities available-for-sale (104,498) (64,774)
Total members' equity 128,057,784 125,171,555
Total liabilities and members'
equity $857,952,462 $839,335,580
<PAGE>
NATIONAL COOPERATIVE BANK
CONSOLIDATED STATEMENTS OF INCOME
(Unaudited)
Six Months Ended Three Months Ended
June 30, June 30,
1997 1996 1997 1996
<TABLE>
Interest income
<S> <C> <C> <C> <C>
Loans and lease financing $30,888,106 $26,522,790 $15,516,939 $13,193,649
Investment securities 2,206,644 1,883,515 1,121,187 924,667
Total interest income 33,094,750 28,406,305 16,638,126 14,118,316
Interest expense
Deposits 2,017,134 2,036,792 984,181 1,001,913
Short-term borrowings 5,625,341 3,371,843 2,734,477 1,518,009
Long-term debt, other
borrowings and
subordinated debt 13,042,669 11,238,815 6,770,374 5,673,139
Total interest expense 20,685,144 16,647,450 10,489,032 8,193,061
Net interest income 12,409,606 11,758,855 6,149,094 5,925,255
Provision for loan losses 1,389,000 650,000 687,000 330,000
Net interest income after
provision for losses 11,020,606 11,108,855 5,462,094 5,595,255
Non-interest income
Gain on sale of loans 1,741,309 4,937,477 332,882 4,806,209
Loan and deposit
servicing fees 1,111,943 1,027,085 556,747 545,007
Other 2,883,305 2,321,370 1,335,844 1,394,167
Total non-interest
income 5,736,557 8,285,932 2,225,473 6,745,383
Non-interest expenses
Compensation and
employee benefits 5,708,107 5,311,691 3,016,036 2,646,487
Contractual services 1,726,286 2,069,113 883,067 980,732
Occupancy and equipment 1,887,376 1,754,839 935,968 1,209,987
Contribution to NCB
Development Corporation 250,000 250,000 125,000 125,000
Other 1,093,477 953,883 621,078 313,243
Total non-interest
expenses 10,665,246 10,339,526 5,581,149 5,275,449
Income before income taxes 6,091,917 9,055,261 2,106,418 7,065,189
Provision for income taxes 739,532 451,611 402,385 222,274
Net income $ 5,352,385 $ 8,603,650 $ 1,704,033 $ 6,842,915
Distribution of net income
Patronage dividends $ 5,352,385 $ 8,518,676 $ 1,704,033 $ 6,757,941
Retained earnings 84,974 84,974
$ 5,352,385 $ 8,603,650 $ 1,704,033 $ 6,842,915
</TABLE>
<PAGE>
NATIONAL COOPERATIVE BANK
CONSOLIDATED STATEMENTS OF CASH FLOWS
(Unaudited)
For the six months ended June 30, 1997 1996
Cash flows from operating activities
Net income $ 5,352,385 $ 8,603,656
Adjustments to reconcile net income to net
cash provided by (used in) operating activities
Provision for loan losses 1,389,000 650,000
Depreciation and amortization 2,791,804 2,445,833
Gain on sale of assets (1,741,309) (4,816,579)
Loans originated for sale (85,561,715) (139,255,443)
Proceeds from sale of loans held for sale 134,011,720 118,777,927
Decrease (increase) in other assets 2,108,595 (6,625,828)
Increase in other liabilities 2,181,056 2,472,331
Net cash provided by (used in) operating
activities 60,531,536 (17,748,103)
Cash flows from investing activities
Purchases of investment securities
Available-for-sale (4,736,872) (7,044,371)
Held-to-maturity - (1,007,783)
Proceeds from maturities and sales
of investment securities
Available-for-sale 2,478,010 6,075,132
Held-to-maturity 150,642 -
Net(increase)in loans and lease financing (57,543,936) (2,256,647)
Proceeds from sale of portfolio loans - 18,812,435
Purchases of premises and equipment (225,418) (580,296)
Net cash (used in) provided by investing
activities (59,877,574) 13,998,470
Cash flows from financing activities
Net (decrease) increase in deposits (8,729,566) 3,587,917
Net (decrease) in short-term borrowings (800,000) (36,500,000)
Proceeds from issuance of long-term debt 40,000,000 32,500,000
Repayment on long-term debt (19,000,000) -
Sale of common stock 300 -
Redemption of common stock - (3,000)
Dividends paid (210,150) -
Net cash provided by (used in) financing
activities 11,260,584 (415,083)
Increase (decrease) in cash and cash equivalents 11,914,546 (4,164,716)
Cash and cash equivalents, beginning of year 17,150,534 21,289,376
Cash and cash equivalents, end of period $ 29,065,080 $ 17,124,660
NATIONAL COOPERATIVE BANK
CONSOLIDATED STATEMENTS OF CASH FLOWS
(Unaudited)
Supplemental schedule of noncash investing and financing activities:
For the six months ended June 30, 1997 1996
Unrealized loss on investment
available-for-sale $ (41,648) $ (622,968)
Interest paid 19,962,864 16,597,351
Income taxes paid 705,554 548,012
Loans charged off 22,327 708,052
<PAGE>
NATIONAL COOPERATIVE BANK
CONDENSED NOTES TO THE CONSOLIDATED
FINANCIAL STATEMENTS
June 30, 1997
(Unaudited)
The accompanying financial statements have been prepared
without audit and reflect all adjustments (consisting only of
normal recurring adjustments) which were, in the opinion of
management, necessary to a fair statement of the results of the
interim period presented. Certain information and footnote
disclosures normally included in financial statements prepared in
accordance with generally accepted accounting principles have been
condensed or omitted. Accordingly, these condensed financial
statements should be read in conjunction with the financial
statements and the notes thereto included in NCB's most current
annual report. The results of operations for the interim periods
are not necessarily indicative of the results of the entire year.
Certain prior year amounts have been reclassified to conform
to the 1997 presentation.
1. Cash, Cash Equivalents and Investment Securities
As of June 30, 1997, NCB's portfolio of investment securities,
cash and cash equivalents had an average adjusted maturity of 987
days with interest rates in those portfolios varying from 5.00% to
8.50%.
Cash and Investments Investments
Cash Available- Held-to-
Equivalents for-Sale Maturity
Cash $ 4,878,242 $ - $ -
Federal funds 4,337,990 - -
Money market securities 13,422,578 - -
Mutual funds - 2,054,169 -
Mortgage-backed securities - - 2,795,783
Eurodollar certificates
and repurchase agreements 6,426,270 - -
Corporate bonds - 11,587,180 -
U.S. Treasury and
Agency obligations - 18,897,449 -
$29,065,080 $32,538,798 $2,795,783
At June 30, 1997, the investments in the available-for-sale
portfolio were recorded at aggregate fair value. Restricted cash
of $8,348,703 is held by a trustee for the benefit of certificate
holders in the event of loss on certain loans sold of $37,300,000
and $92,623,000 in 1993 and 1992, respectively. The restricted
cash will become available to NCB I, Inc., as the principal balance
of the respective loans decreases. The loans sold have original
maturities of ten to fifteen years.
2. Loans and Lease Financing
Loans and leases outstanding by category at June 30, 1997 were:
Commercial loans $365,744,112
Lease financing 15,164,766
Real estate loans
Residential 371,085,871
Commercial 6,984,423
$758,979,172
At June 30, 1997 and December 31, 1996 real estate loans held
for sale were $161.8 million and $184.3 million, respectively.
3. Impaired Assets
Loans that became impaired after January 1, 1996 totaled
$6,616,343 and $2,071,399 at June 30, 1997 and 1996, respectively.
The 1997 impaired loans are comprised of nonaccrual loans and a
restructured loan totaling $5,577,108 and $1,039,235, respectively.
The 1996 impaired loans are comprised of nonaccrual loans and a
restructured loan totaling $1,370,097 and $701,302, respectively.
A specific allowance of $1,594,418 and $245,000 has been set aside
for these loans at June 30, 1997 and 1996, respectively, as
management's best estimate of their fair value is less than the
recorded investment in the loans. During 1997 and 1996, the
interest collected on the nonaccrual loans was applied to reduce
the outstanding principal. Interest earned on the restructured
loans totalled $143,522 and $26,856 during the first six months
ended June 30, 1997 and 1996, respectively.
At June 30, 1997 there were no commitments to lend additional
funds to borrowers whose loans are non-performing.
At June 30, 1997 and 1996, NCB had real estate acquired through
foreclosure of $208,338 and $546,559, respectively, which are
classified as other assets.
4. Allowance for Loan Losses
The following is a summary of the activity in the allowance for
loan losses during the six months ended June 30, 1997:
Balance at January 1, 1997 $15,504,510
Provision for loan losses 1,389,000
Charge-offs (22,329)
Recoveries of loans previously
charged off 11,519
Balance at June 30, 1997 $16,882,700
The allowance for loan losses as a percentage of average loans
and lease financing at June 30, 1997 was 2.4%.
5. New Financial Accounting Standards
In June, 1996, Statement of Financial Accounting Standards ("SFAS")
No. 125, "Accounting for Transfers and Servicing of Financial Assets and
Extinguishments of Liabilities" was issued. SFAS No. 125 provides accounting
and reporting standards for transfers and servicing of financial assets and
extinguishments of liabilities, based on a financial-components approach
that focuses on control. Under this approach, after a transfer of financial
assets, financial and servicing assets are recognized if controlled or
liabilities are recognized if incurred. Financial and servicing assets are
removed from the statement of income when control has been surrendered and
liabilities are removed when extinguished. SFAS NO. 125 was effective and
adoptive on January 1, 1997 and was applied prospectively. The Corporation
did not experience any material effect on its financial position from this
implementation.
In June, 1997, SFAS Nos. 130 was issued-"Reporting Comprehensive Income."
SFAS No. 130 requires that certain financial activity typically disclosed in
members' equity be reported in the statements of income as an adjustment
to net income in determining comprehensive income. The only item applicable
to the Bank would include gain/loss on securities available for sale. Items
indentified as comprehensive income should be reported also in the statements
of income and the statements of changes in members' equity, under separate
captions. SFAS No. 130 is effective for the Corporation on January 1, 1998,
including the restatement of prior periods reported consistent with this
pronouncement. The Corporation does not anticipate any material financial
impact from the implementation of SFAS No. 130.
<PAGE>
NATIONAL COOPERATIVE BANK
MANAGEMENT DISCUSSION AND ANALYSIS
FOR THE THREE AND SIX MONTHS ENDED JUNE 30, 1997 AND 1996
SUMMARY
NCB's net income for the six months ended June 30, 1997 was $5.4
million. This was a 37.8% or $3.3 million decrease compared with
$8.6 million for the six months ended June 30, 1996. The variance
resulted primarily from a decrease in non-interest income of $2.5
million and an increase in the provision for loan losses in the
amount of $739 thousand. For the three month period, net income
declined to $1.7 million from $6.8 million due primarily to a
decline in non-interest income.
Total assets were $858.0 million at June 30, 1997, representing
growth of $18.6 million or 2.2% from $839.3 million at December 31,
1996. This growth resulted from increases in loan originations and
cash and cash equivalents.
The return on average total assets was 1.29% for the first six
months of 1997 compared with 2.47% for the same period in 1996.
The return on average equity for the first six months of 1997 and
1996 was 8.41% and 14.33%, respectively.
NET INTEREST INCOME
Net interest income increased 5.5% or $651 thousand for the first
six months of 1997 compared with the same period a year ago. As
shown on Table 2, the increase in net interest income related to
volume was $604 thousand while the increase related to changes in
interest rates was $47 thousand.
For the three months ending June 30,1997, net interest income
increased 3.8% or $224 thousand from the same period in 1996. As
shown on Table 2A, there was a positive variance of $305 thousand
and a negative variance of $81 thousand related to yield and
volume, respectively.
For the six months ended June 30,1997, interest income went up
$4.7 million to $33.1 million. The average rate on interest
earning assets decreased to 8.46% during the six months ended June
30, 1997 compared with 8.53% in the same period in 1996. The
increase in interest income was mostly due to a higher average
balance of the interest earning assets for the time period. As
shown on Table 2, interest income increased $5.1 million due to
increased volume but decreased $376 thousand due to a drop in
interest rates.
Interest income increased $2.5 million to $16.6 million for the
three months ended June 30, 1997 compared with $14.1 million for
the prior year. The average rate on interest earning assets
increased to 8.54% during the three months ended June 30, 1997
compared with 8.52% in the same period in 1996. As shown on Table
2A, interest income increased $2.5 million due to increased volume
but decreased $12 thousand due to the decreasing rate environment.
Interest expense increased $4.0 million to $20.7 million for the
six months ended June 30, 1997 compared with $16.7 million for the
same period in 1996. The average rate on interest bearing
liabilities increased to 6.14% compared with 5.98%. As shown on
Table 2, a $4.5 million increase in interest expense was volume
related while a $423 thousand decrease was due to declining
interest rates.
For the three month period ended June 30, 1997, interest expense
increased $2.3 million to $10.5 million from $8.2 million a year
ago. The average rate on interest bearing liabilities increased to
6.25% compared with 5.91% in the same period in 1996. As shown on
Table 2A, an increase of $2.6 million in interest expense was
volume related which was partially offset by $317 thousand due to
a decrease in rates.
NON-INTEREST INCOME
Non-interest income for the six months ended June 30, 1997 of
$5.7 million decreased 30.8% or $2.6 million from $8.3 million for
the same period last year. The majority of the decrease was caused
by a lesser amount of asset sales to the secondary market. The
fees and gains on sale of blanket mortgages totalled $4.9 million
in the first half of 1996 compared with $1.7 million in the same
period in 1997. This was partially offset by an increase of $646.8
thousand in servicing fees and other income.
For the three month period ended June 30, non-interest income
declined by $4.5 million from $6.7 million at June 30,1996 to $2.2
million for the same period in the current year. The majority of
the decrease was related to gains on the higher volume of
real estate loans sold during the second quarter of 1996 compared
with same quarter this year.
NON-INTEREST EXPENSES
Non-interest expenses for the six months ended June 30, 1997
increased 3.2% to $10.7 million from $10.3 million for the six
months ended June 30, 1996. Compensation and benefits, the largest
component of non-interest expenses, increased 7.5% or $.4 million
due to a higher employee base at the start of 1997. Occupancy and
equipment expenses increased 7.6% to $1.9 million compared with
$1.8 million of the prior year due to a positive adjustment to the
headquarter's rent in the first quarter of 1996. Non-interest expense,
excluding the voluntary contribution to NCB Development
Corporation, as a percentage of average assets, decreased slightly
to 1.3% for the six months ended June 30, 1997 from 1.5% for the
six months ended June 30,1996.
For the three months ended June 30, 1997, non-interest expenses
increased $306 thousand or 5.8% to $5.6 million from $5.3 million for
the same period in 1996. The increase was primarily attibutable to
the timing of new hires and more comissions paid to loan officers due
to higher loan production which was partially offset by a decrease in
contractual services.
<PAGE>
Table 1
Rate Related Assets and Liabilities
(dollars in thousands)
Six Months Ended June 30,
ASSETS 1997 1996
Average Income/ Yields/ Average Income/ Yields/
Balance Expense Rates Balance Expense Rates
Interest earning assets
Real estate loans $346,845 $15,154 8.74% $278,540 $12,764 9.16%
Commercial loans
and leases 370,954 15,734 8.48% 322,475 13,758 8.53%
Total loans and leases 717,799 30,888 8.61% 601,015 26,522 8.83%
Investment securities
and cash equivalents 64,946 2,207 6.80% 64,926 1,884 5.81%
Total interest earning
assets 782,745 33,095 8.46% 665,941 28,406 8.53%
Allowance for loan losses (16,197) (14,784)
Non-interest earning assets
Cash 5,376 2,914
Other assets 55,831 43,136
Total non-interest
earning assets 61,207 46,050
Total assets $827,755 $697,207
LIABILITIES AND MEMBERS' EQUITY
Interest bearing liabilities
Subordinated debt $182,542 5,167 5.66% $182,989 4,690 5.13%
Notes payable 405,611 13,501 6.66% 291,875 9,920 6.80%
Deposits 85,307 2,017 4.73% 81,505 2,037 5.00%
Total interest bearing
liabilities 673,460 20,685 6.14% 556,369 16,647 5.98%
Other liabilities 26,999 20,837
Members' equity 127,296 120,001
Total liabilities and
members' equity $827,755 $697,207
Net interest earning
assets $109,285 $109,572
Net interest revenues and
spread $12,410 2.32% $11,759 2.55%
Net yield on
interest earning assets 3.17% 3.53%
<PAGE>
Table 1A
Rate Related Assets and Liabilities
(dollars in thousands)
Three Months Ended June 30,
ASSETS 1997 1996
Average Income/ Yields/ Average Income/ Yields/
Balance Expense Rates Balance Expense Rates
Interest earning assets
Real estate loans $353,275 $ 7,364 8.34% $274,686 $ 6,370 9.28%
Commercial loans
and leases 360,997 8,153 9.03% 321,921 6,823 8.48%
Total loans and leases 714,272 15,517 8.69% 596,607 13,193 8.84%
Investment securities
and cash equivalents 64,917 1,121 6.91% 66,190 925 5.60%
Total interest earning
assets 779,189 16,638 8.54% 662,797 14,118 8.52%
Allowance for loan losses (16,620) (14,880)
Non-interest earning assets
Cash 6,584 3,760
Other assets 53,934 45,299
Total non-interest
earning assets 60,518 49,059
Total assets $823,087 $696,976
LIABILITIES AND MEMBERS' EQUITY
Interest bearing liabilities
Subordinated debt $182,542 2,619 5.74% $182,977 2,275 4.97%
Notes payable 402,500 6,886 6.84% 290,051 4,916 6.78%
Deposits 86,243 984 4.56% 81,935 1,002 4.89%
Total interest bearing
liabilities 671,285 10,489 6.25% 554,963 8,193 5.91%
Other liabilities 24,708 21,023
Members' equity 127,094 120,990
Total liabilities and
members' equity $823,087 $696,976
Net interest earning
assets $107,904 $107,834
Net interest revenues and
spread $ 6,149 2.29% $ 5,925 2.61%
Net yield on
interest earning assets 3.16% 3.58%
<PAGE>
Table 2
Change in Net Interest Income
(dollars in thousands)
For the six months ended June 30, 1997 compared to 1996
Increase (decrease) due to changes
in:
Average Average
Volume* Yield Net**
Interest Income
Cash equivalents and
investment securities $ 2 $ 321 $ 323
Commercial loans and leases 2,057 (80) 1,977
Real estate loans 3,007 (617) 2,390
Total interest income 5,066 (376) 4,690
Interest Expense
Deposits 93 (112) (19)
Notes payable 4,380 (799) 3,581
Subordinated debt (11) 488 477
Total interest expense 4,462 (423) 4,039
Net interest income $ 604 $ 47 $ 651
* Average monthly balances
** Changes in interest income and interest expense due to changes
in rate and volume have been allocated to "change in average
volume" and "change in average rate" in proportion to the
absolute dollar amounts in each.
<PAGE>
Table 2A
Change in Net Interest Income
(dollars in thousands)
For the three months ended June 30, 1997 compared to 1996
Increase (decrease) due to changes in:
Average Average
Volume* Yield Net**
Interest Income
Cash equivalents and
investment securities $ (17) $ 213 $ 196
Commercial loans and leases 862 468 1,330
Real estate loans 1,687 (693) 994
Total interest income 2,532 (12) 2,520
Interest Expense
Deposits 51 (69) (18)
Notes payable 2,568 (598) 1,970
Subordinated debt (6) 350 344
Total interest expense 2,613 (317) 2,296
Net interest income $ (81) $ 305 $ 224
* Average monthly balances
**Changes in interest income and interest expense due to changes
in rate and volume have been allocated to "change in average
volume" and "change in average rate" in proportion to the
absolute dollar amounts in each.
<PAGE>
PROVISION FOR INCOME TAXES
The federal income tax provision is determined on the basis of
non-member income generated by NCB Savings Bank, FSB and reserves
set aside for the retirement of Class A notes and dividends on
Class C stock. NCB's subsidiaries are also subject to varying
levels of state taxation. The federal income tax provision for the
six months ended June 30, 1997 increased by $288 thousand compared
with the prior year's provision of $452 thousand.
CASH, CASH EQUIVALENTS AND INVESTMENT SECURITIES
Cash, cash equivalents and investment securities at June 30, 1997
increased $14.0 million or 23.8% from $58.8 million at year-end
1996 due to margin requirements and loan principal paydowns received
at the end of the month. As a percentage of interest earning assets,
cash, cash equivalents and investment securities increased to 8.7%
at June 30, 1997 from 7.3% at December 31, 1996.
ALLOWANCE FOR LOAN LOSSES
The allowance for loan losses at June 30, 1997 increased 8.9% to
$16.9 million from $15.5 million at December 31, 1996. The
allowance during the period was impacted by loans charged off, net
of recoveries of loans previously charged off, amounting to $10.8
thousand and the provision of $1.39 million. NCB's provision for
loan losses as a percentage of average loans and leases outstanding
increased to .4% at June 30, 1997 compared with .1% for the same period
in 1996. The increase in the provision is the result of two factors:
1) growth in the real estate and commercial portfolio from the
prior year, and 2) management's assessment that additional
provisions should be recorded due to the current economic
environment.
The loan loss allowance as a percentage of average loans and
leases increased to 2.4% at June 30, 1997 from 2.1% at December 31,
1996. Overall, credit quality remained strong and management
considers the current allowance to be adequate to absorb known and
inherent risks in the loan portfolio.
As shown in Table 3, total nonperforming assets (restructured
and non-accruing loans and real estate owned) increased from $8.1
million at December 31, 1996 to $10.8 million at June 30, 1997.
The increase was caused by two loans that went on non-accrual
during the first six months in 1997. Nonperforming assets as a
percentage of loans and leases outstanding plus real estate owned
were 1.4% at June 30, 1997 compared with 1.1% at year-end 1996.
The allowance for loan losses as a percentage of nonperforming
assets decreased to 156.1% at June 30,1997 from 190.8% at
December 31, 1996.
TABLE 3
Nonperforming assets
(dollars in thousands)
June 30, March 31, Dec. 31, Sept. 31, June 30,
1997 1997 1996 1996 1996
Real estate owned $ 208 $ 377 $ 377 $ 518 $ 547
Non-accruing 5,577 2,731 2,601 1,282 1,370
Restructured 5,028 5,098 5,147 4,115 4,145
Total $10,813 $8,206 $8,125 $5,915 $6,062
<PAGE>
INTEREST BEARING LIABILITIES
Interest bearing liabilities
(dollars in thousands)
6/30/97 12/31/96 % Change
Deposits $ 79,890 $ 88,620 (9.8%)
Short term debt 223,700 224,500 (.4%)
Long term debt 222,747 202,137 10.2%
Subordinated debt 182,818 182,853 0.0%
Total $709,155 $698,110 1.6%
Interest bearing liabilities increased by 1.6% to $709.2 million
at June 30, 1997 from $698.1 million at December 31, 1996.
For the first six months of 1997, deposits at NCB Saving Bank,
FSB dropped 9.8% to $79.9 million. The decrease was attributable to
scheduled maturities of certificate of deposits. Average maturity
of these deposits is one year.
At June 30, 1997, total short term and long term borrowings
(including the subordinated debt) increased 4.6% from year-end 1996.
Proceeds from the borrowings were used to fund asset growth.
NCB had approximately $223.7 million outstanding on its short
term facilities. Included in the short term borrowings is $3.7
million from an affiliate and a cooperative customer. Long term
debt increased 10.2% from year-end 1996 due to the issuance of
$40.0 million under the new medium-term note program which was
partially offset by a paydown of $19.0 million in long-term notes.
Unused capacities under the short term and long term facilities of
approximately $85.0 million and $90.0 million, respectively, are
sufficient to meet anticipated commitments during 1997.
<PAGE>
Part II Other Information
Item 2. Changes in Securities
(c) During the period covered by this report, NCB sold three
shares of its Class C stock without registration under the
Securities Act of 1933 (the "1933 Act") in reliance on the
exemption from registration provided by section 4 (2) of the 1933
Act. The stock was sold for $100 a share in cash without any
underwriting discounts or commissions to cooperative organizations
eligible to obtain loans from NCB. The stock was not offered to the
general public; the purchasers had access to essentially the same
information that would be contained in a registration statement and
had the capability to evaluate the merits of such an investment.
Item 6. Exhibits and Reports on Form 8-k
(a) The following exhibits are filed as part of this report:
Exhibit 10.5 - Third Amended and Restated Loan Agreement
with Fleet Bank as Agent
Exhibit 10.8 - Master Shelf Agreement with Prudential
Insurance Co. of America et al(June 1997)
Exhibit 27 - Financial Data Schedule
(b) On May 13, 1997, the registrant filed a report on Form 8-K
that reported a change in the Registrant's Certifying Accountant
<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned thereunto duly authorized.
NATIONAL CONSUMER COOPERATIVE BANK
Date:
By: /s/ Richard L. Reed
Richard L. Reed,
Managing Director,
Chief Financial Officer
By: /s/ Marietta J. Orcino
Marietta J. Orcino
Vice President,
Tax & Regulatory Compliance
<TABLE> <S> <C>
<ARTICLE> 9
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-30-1997
<PERIOD-END> JUN-30-1997
<CASH> 4,878,242
<INT-BEARING-DEPOSITS> 19,848,848
<FED-FUNDS-SOLD> 4,337,990
<TRADING-ASSETS> 0
<INVESTMENTS-HELD-FOR-SALE> 32,538,798
<INVESTMENTS-CARRYING> 2,795,783
<INVESTMENTS-MARKET> 0
<LOANS> 758,979,172
<ALLOWANCE> 16,882,700
<TOTAL-ASSETS> 857,952,462
<DEPOSITS> 79,890,436
<SHORT-TERM> 223,700,000
<LIABILITIES-OTHER> 20,738,877
<LONG-TERM> 405,565,365
0
0
<COMMON> 101,159,395
<OTHER-SE> 104,498
<TOTAL-LIABILITIES-AND-EQUITY> 857,952,462
<INTEREST-LOAN> 30,888,106
<INTEREST-INVEST> 2,206,644
<INTEREST-OTHER> 0
<INTEREST-TOTAL> 33,094,750
<INTEREST-DEPOSIT> 2,017,134
<INTEREST-EXPENSE> 20,685,144
<INTEREST-INCOME-NET> 12,409,606
<LOAN-LOSSES> 1,389,000
<SECURITIES-GAINS> 0
<EXPENSE-OTHER> 10,665,246
<INCOME-PRETAX> 6,091,917
<INCOME-PRE-EXTRAORDINARY> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 5,352,385
<EPS-PRIMARY> 10.58
<EPS-DILUTED> 10.58
<YIELD-ACTUAL> 3.17
<LOANS-NON> 5,577,108
<LOANS-PAST> 810,065
<LOANS-TROUBLED> 5,028,495
<LOANS-PROBLEM> 0
<ALLOWANCE-OPEN> 15,504,510
<CHARGE-OFFS> 22,329
<RECOVERIES> 11,519
<ALLOWANCE-CLOSE> 16,882,700
<ALLOWANCE-DOMESTIC> 0
<ALLOWANCE-FOREIGN> 0
<ALLOWANCE-UNALLOCATED> 16,882,700
</TABLE>
THIRD AMENDED AND RESTATED LOAN AGREEMENT
BY AND AMONG
NATIONAL CONSUMER COOPERATIVE BANK, D/B/A
NATIONAL COOPERATIVE BANK, AS BORROWER
AND
THE BANKS' SIGNATORY HERETO
AND
FLEET BANK, N.A., AS AGENT
DATED AS OF MAY 28, 1997
<PAGE>
TABLE OF CONTENTS
PAGE
Article 1. Definitions; Effective Date . . . . . . . . . . . 2
Article 2. Commitments and Loans. . . . . . . . . . . . . . . 21
Section 2.1 Loans . .... . . . . . . . . . . . . . . . . . 21
Section 2.2 Reductions in Total Commitments .... . . . . . 24
Section 2.3 Notices Relating to Loans and Swing
Line Loans ..... . . . . . . . . . . . . . . . 24
Section 2.4 Fees. . . . . .... . . . . . . . . . . . . . . 26
Section 2.5 Lending Offices . .... . . . . . . . . . . . . 26
Section 2.6 Several Obligations .... . . . . . . . . . . 26
Section 2.7 Borrowings. ... . . . . .... . . . . . . . . . 26
Section 2.8 Conversions of Loans. ...... . . . . . . . . . 27
Section 2.9 Prepayments . . . . . . . ... . . . . . . . . 27
Section 2.10 Use of Proceeds of Loans. . . . . . . . . . . 27
Section 2.11 Payment of Loans. . . . . . . . . . . . . . . 27
Section 2.12 Interest. . . . . . . . . . . . . . . . . . . 28
Section 2.13 Notes . . . . . . . . . . . . . . . . . . . . 29
Section 2.14 Payments. . . . . . . . . . . . . . . . . . . 30
Section 2.15 Pro Rata Treatment. . . . . . . . . . . . . . 30
Section 2.16 Computations. . . . . . . . . . . . . . . . . 31
Section 2.17 Minimum Amounts of Borrowing Conversions,
Prepayments and Interest Periods. . . . . . . 31
Section 2.18 Non-Receipt of Funds by the Agent . . . . . . 31
Section 2.19 Sharing of Payments, Etc. . . . . . . . . . . 32
Section 2.20 Additional Costs. . . . . . . . . . . . . . . 32
Section 2.21 Limitation on Types of Loans. . . . . . . . . 34
Section 2.22 Illegality. . . . . . . . . . . . . . . . . . 35
Section 2.23 Certain Conversions Pursuant to
Section 2.20 . . . . . . . . . . . . . . . . . . . . . . . 35
Section 2.24 Indemnification . . . . . . . . . . . . . . . 36
Section 2.25 Termination of A Commitment under Certain
Circumstances.. . . . . . . . . . . . . . . . 36
Article 3. Representations and Warranties . . . . . . . . . . 38
Section 3.1 Organization...... . . . . . . . . . . . . . . 38
Section 3.2 Power, Authority, Consents.... . . . . . . . . 38
Section 3.3 No Violation of Law or Agreements . . . . 39
Section 3.4 Due Execution, Validity, Enforceability .... . 39
Section 3.5 Properties. . . . . . . . . . . . . . . . .... 39
Section 3.6 Judgments, Actions, Proceedings . . . . . .... 39
Section 3.7 No Defaults, Compliance With Laws . . . . . ...40
Section 3.8 Burdensome Documents. . . . . . . . . . . .... 40
Section 3.9 Financial Statements. . . . . . . . . . . .... 40
Section 3.10 Tax Returns . . . . . . . . . . . . . . . . . 41
Section 3.11 Intangible Assets . . . . . . . . . . . . . . 41
Section 3.12 Regulation U. . . . . . . . . . . . . . . . . 41
Section 3.13 Name Changes. . . . . . . . . . . . . . . . . 41
Section 3.14 Full Disclosure . . . . . . . . . . . . . . . 41
Section 3.15 Employee Grievances . . . . . . . . . . . . . 42
Section 3.16 Condition of Assets . . . . . . . . . . . . . 42
Section 3.17 ERISA . . . . . . . . . . . . . . . . . . . . 42
Article 4. Conditions to the Closing
and to the Making of the Loans. . . . . . . . . . . 43
Section 4.1 Conditions to the Closing . . . . . . . . . 43
Section 4.2 Conditions to Subsequent Loans
and Swing Line Loans. . . . . . . . . . . 44
Section 4.3 Return of Superseded Notes. . . . . . . . . 44
Article 5. Delivery of Financial Reports,
Documents and Other Information . . . . . . . . . . 45
Section 5.1 Annual Financial Statements . . . . . . . . 45
Section 5.2 Quarterly Financial Statements. . . . . . . 45
Section 5.3 Other Information . . . . . . . . . . . . . 46
Section 5.4 No Default Certificate. . . . . . . . . . . 46
Section 5.5 Certificate of Accountants. . . . . . . . . 46
Section 5.6 Copies of Documents . . . . . . . . . . . . 46
Section 5.7 Notices of Defaults . . . . . . . . . . . . 47
Section 5.8 ERISA Notices . . . . . . . . . . . . . . . 47
Article 6. Affirmative Covenants. . . . . . . . . . . . . . . 48
Section 6.1 Books and Records . . . . . . . . . . . . . 48
Section 6.2 Inspections and Audits. . . . . . . . . . . 48
Section 6.3 Maintenance and Repairs . . . . . . . . . . 48
Section 6.4 Continuance of Business . . . . . . . . . . 48
Section 6.5 Copies of Corporate Documents . . . . . . . 48
Section 6.6 Perform Obligations . . . . . . . . . . . . 49
Section 6.7 Notice of Litigation. . . . . . . . . . . . 49
Section 6.8 Insurance . . . . . . . . . . . . . . . . . 49
Section 6.9 Financial Covenants . . . . . . . . . . . . 49
Section 6.10 Reportable Events . . . . . . . . . . . . . . 51
Section 6.11 Comply with ERISA . . . . . . . . . . . . . . 51
Section 6.12 Senior Note Agreements. . . . . . . . . . . . 51
Article 7. Negative Covenants . . . . . . . . . . . . . . . . 52
Section 7.1 Indebtedness. . . . . . . . . . . . . . . . 52
Section 7.2 Liens . . . . . . . . . . . . . . . . . . . 52
Section 7.3 Guaranties. . . . . . . . . . . . . . . . . 53
Section 7.4 Mergers, Acquisitions . . . . . . . . . . . 53
Section 7.5 Redemptions; Distributions. . . . . . . . . 53
Section 7.6 Intentionally Omitted . . . . . . . . . . . 54
Section 7.7 Changes in Business . . . . . . . . . . . . 54
Section 7.8 Prepayments . . . . . . . . . . . . . . . . 54
Section 7.9 Investments . . . . . . . . . . . . . . . . 54
Section 7.10 Fiscal Year . . . . . . . . . . . . . . . . . 55
Section 7.11 ERISA Obligations . . . . . . . . . . . . . . 55
Section 7.12 Amendment of Documents. . . . . . . . . . . . 56
Section 7.13 Transactions with Affiliates. . . . . . . . . 56
Article 8. Events of Default. . . . . . . . . . . . . . . . . 57
Section 8.1 Payments. . . . . . . . . . . . . . . . . . 57
Section 8.2 Incurring of Indebtedness during the
Grace Period. . . . . . . . . . . . . . . 57
Section 8.3 Covenants . . . . . . . . . . . . . . . . . 57
Section 8.4 Other Covenants . . . . . . . . . . . . . . 57
Section 8.5 Other Defaults. . . . . . . . . . . . . . . 58
Section 8.6 Representations and Warranties. . . . . . . 58
Section 8.7 Bankruptcy. . . . . . . . . . . . . . . . . 58
Section 8.8 Judgments . . . . . . . . . . . . . . . . . 59
Section 8.9 ERISA . . . . . . . . . . . . . . . . . . . 59
Article 9. The Agent. . . . . . . . . . . . . . . . . . . . . 60
Section 9.1 Appointment, Powers and Immunities. . . . . 60
Section 9.2 Reliance by Agent . . . . . . . . . . . . . 60
Section 9.3 Events of Default . . . . . . . . . . . . . 60
Section 9.4 Rights as a Bank. . . . . . . . . . . . . . 61
Section 9.5 Indemnification . . . . . . . . . . . . . . 61
Section 9.6 Non-Reliance on Agent and Other Banks . . . 62
Section 9.7 Failure to Act. . . . . . . . . . . . . . . 62
Section 9.8 Resignation or Removal of Agent . . . . . . 63
Article 10. Miscellaneous Provisions. . . . . . . . . . . . . 64
Section 10.1 Fees and Expenses; Indemnity. . . . . . . . . 64
Section 10.2 Taxes . . . . . . . . . . . . . . . . . . . . 65
Section 10.3 Payments. . . . . . . . . . . . . . . . . . . 66
Section 10.4 Survival of Agreements and Representations
and Waiver of Trial by Jury . . . . . . . . . . 66
Section 10.5 Lien on and Set-off of Deposits . . . . . . . 67
Section 10.6 Modifications, Consents and
Waivers; Entire Agreement . . . . . . . . . . . 67
Section 10.7 Remedies Cumulative . . . . . . . . . . . . . 68
Section 10.8 Further Assurances. . . . . . . . . . . . . . 68
Section 10.9 Notices . . . . . . . . . . . . . . . . . . . 68
Section 10.10 Counterparts . . . . . . . . . . . . . . . . 70
Section 10.11 Construction; GOVERNING LAW. . . . . . . . . 70
Section 10.12 Severability . . . . . . . . . . . . . . . . 70
Section 10.13 Binding Effect; No Assignment or
Delegation . . . . . . . . . . . . . . . . . . 70
Section 10.14 Assignments; Participations. . . . . . . . . 70
<PAGE>
<PAGE>
THIRD AMENDED AND RESTATED LOAN AGREEMENT
AGREEMENT, made as of this 28th day of May, 1997, by and among:
NATIONAL CONSUMER COOPERATIVE BANK, a corporation chartered by Act of
Congress of the United States which conducts business under the trade name
National Cooperative Bank (the "Borrower");
The Banks which have executed this Agreement (individually, a "Bank"
and, collectively, the "Banks"); and
FLEET BANK, N.A., as Agent for the Banks (in such capacity, together
with its successors in such capacity, the "Agent");
W I T N E S S E T H:
(A) The Borrower, the Agent and the banks signatory thereto entered
into a certain Second Amended and Restated Loan Agreement dated as of December
15, 1993, which was amended pursuant to (i) Amendment No. 1 to Second Amended
and Restated Loan Agreement dated as of December 12, 1994, (ii) Amendment No.
2 to Second Amended and Restated Loan Agreement dated as of December 11, 1995,
(iii) Amendment No. 3 to Second Amended and Restated Loan Agreement dated as
of May 30, 1996, and (iv) Amendment No. 4 to Second Amended and Restated Loan
Agreement dated as of December 20, 1996 (as so amended, the "Original Loan
Agreement");
(B) The Borrower has requested, among other things, that the Banks
increase the aggregate "Total Commitment" as defined in the Original Loan
Agreement from $200,000,000 to $260,000,000; and
(C) The Banks are willing to so increase the Total Commit- ment, but
only on the condition, among other things, that the Borrower agree to amend
and restate the Original Loan Agreement as provided herein;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, the parties hereto agree that the Original Loan
Agreement (including, all Exhibits and Schedules thereto) is hereby amended
and restated in its entirety to read as follows:
Article 1. Definitions; Effective Date.
(a) As used in this Agreement, the following terms shall have
the following meanings:
"A Commitment" - as to each Bank, the amount set opposite
such Bank's name on the signature pages hereto under the caption "A
Commitment" as such amount is subject to reduction in accordance with the
terms hereof.
"A Commitment Termination Date" - May 27, 2000.
"A Credit Period" - the period commencing on the Effective
Date and ending on the A Commitment Termination Date.
"A Loan" and "A Loans" - as defined in subsection 2.1(a)
hereof. A Loans of different types made or converted from A Loans of other
types on the same day (or of the same type but having different Interest
Periods) shall be deemed to be separate A Loans for all purposes of this
Agreement.
"A Note" and "A Notes" - as defined in subsection 2.13(a)
hereof.
"Additional Costs" - as defined in Section 2.20 hereof.
"Additional Interest" - 0.10% per annum.
"Affected Loans" - as defined in Section 2.23 hereof.
"Affected Type" - as defined in Section 2.23 hereof.
"Affiliate" - as to any Person, any other Person which
directly or indirectly controls, or is under common control with, or is
controlled by, such Person. As used in this definition, "control" (including,
with its correlative meanings, "controlled by" and "under common control
with") shall mean possession, directly or indirectly, of power to direct or
cause the direction of management or policies (whether through ownership of
securities or partnership or other ownership interests, by contract or
otherwise), provided that, in any event: (i) any Person which owns directly
or indirectly securities having 5% or more of the ordinary voting power for
the election of directors or other governing body of a corporation or 5% or
more of the partnership or other ownership interests of any other Person
(other than as a limited partner of such other Person) will be deemed to
control such corporation or other Person; and (ii) each shareholder, director
and officer of the Borrower shall be deemed to be an Affiliate of the
Borrower.
"Agreement" - this Third Amended and Restated Loan Agreement
as the same may from time to time be supplemented, amended or modified.
"Alternate Base Rate" - for any day, a rate per annum
(rounded upwards, if necessary, to the next 1/16th of 1%) equal to the greater
of (a) the Prime Rate in effect on such day, and (b) 0.5% plus the Federal
Funds Rate in effect on such day.
"Applicable Lending Office" - with respect to each Bank, the
Lending Office designated below its name on the signature pages hereto or such
other office of such Bank or of an affiliate of such Bank as such Bank may
from time to time specify to the Agent and the Borrower as the office at which
its Loans of such type are to be made and maintained.
"Applicable Margin" - on any date, with respect to LIBOR
Loans, the applicable percentage set forth below based upon the Ratings in
effect on such date:
Category 1 A Loans B Loans
A2 or higher by Moody's; .21% .23%
A or higher by S&P
Category 2
A3 by Moody's; .25% .27%
A- by S&P
Category 3
Baa1 by Moody's; .275% .30%
BBB+ by S&P
Category 4
Baa2 by Moody's .30% .325%
BBB by S&P
Category 5
Baa3 by Moody's .40% .425%
BBB- by S&P
Category 6
Lower than Baa3 by Moody's .60% .625%
Lower than BBB- by S&P
- or -
No Rating by S&P or Moody's
For purposes of the foregoing, if the Ratings shall fall within different
Categories, the Applicable Margin shall be based on the lower Rating (and
higher Applicable Margin); provided, however, in the event the Categories in
which the Ratings fall are more than one Category apart, the Applicable Margin
shall be based on the Rating that is one level higher than the lower of the
two Categories. If any Rating shall be changed (other than as a result of a
change in the rating system of the applicable Rating Agency), such change
shall be effective as of the date on which it is first announced by the Rating
Agency making such change. Each such change in the Applicable Margin shall
apply to all outstanding LIBOR Loans during the period commencing on the
effective date of such change and ending on the date immediately preceding the
effective date of the next such change. If the rating system of any Rating
Agency shall change, the parties hereto shall negotiate in good faith to amend
the references to specific ratings in this definition to reflect such changed
rating system.
"Asset Securitization" - with respect to any Person, a
transaction involving the sale or transfer of receivables by such Person to a
special purpose corporation or grantor trust (an "SPV") established solely for
the purpose of purchasing such receivables from the Borrower for Cash in an
amount equal to the Fair Market Value thereof; provided, however, that the
Borrower may (A) establish and maintain a reserve account containing Cash or
Securities as a credit enhancement in respect of any such sale, or (B)
purchase or retain a subordi-nated interest in such receivables being sold.
"Asset Securitization Recourse Liability" - with respect to
any Person, the maximum amount of such Person's liability (whether matured or
contingent) under any agreement, note or other instrument in connection with
any one or more Asset Securitizations in which such Person has agreed to
repurchase receivables or other assets, to provide direct or indirect credit
support (whether through cash payments, the establishment of reserve accounts
containing cash or Securities, an agreement to reimburse a provider of a
letter of credit for any draws thereunder, the purchase or retention of a
subordinated interest in such receivables or other assets, or other similar
arrangements), or in which such Person may be otherwise liable for all or a
portion of any SPV's obligations under Securities issued in connection with
such Asset Securitizations.
"B Commitment" - as to each Bank, the amount set opposite
such Bank's name on the signature pages hereto under the caption "B
Commitment" as such amount is subject to reduction in accordance with the
terms hereof.
"B Commitment Termination Date" - May 27, 1998, as such
date may be extended pursuant to subsection 2.1(b)(ii) hereof.
"B Credit Period" - the period commencing on the Effective
Date and ending on the B Commitment Termination Date.
"B Loan" and "B Loans" - as defined in subsection 2.1(b)
hereof. B Loans of different types made or converted from B Loans of other
types on the same day (or of the same type but having different Interest
Periods) shall be deemed to be separate B Loans for all purposes of this
Agreement.
"B Note" and "B Notes" - as defined in subsection 2.13(b)
hereof.
"Borrowing Notice" - as defined in Section 2.3 hereof.
"Business Day" - any day other than Saturday, Sunday or
other day on which commercial banks in New York City are authorized or
required to close under the laws of the State of New York.
"Capitalized Lease" - any lease the obligation for Rentals
with respect to which is required to be capitalized on a balance sheet of the
lessee in accordance with generally accepted accounting principles.
"Cash" - as to any Person, such Person's cash and cash
equivalents, as defined in accordance with GAAP consistently applied.
"Class A Notes" - the class A notes issued by the Borrower
to the Secretary of the Treasury on behalf of the United States pursuant to
Section 3026(a)(3)(A) of the National Consumer Cooperative Bank Act, as
amended, 12 U.S.C. section 3001, et seq. (the "Bank Act") on the Final
Government Equity Redemption Date (the "Redemption Date") in full and
complete redemption of the class A stock of the Borrower held by the
Secretary of the Treasury on such Redemption Date and replacement notes
for such class A notes in a principal amount(s) not greater than those
notes being replaced and containing identical terms of subordination as
the class A notes. The terms "class A notes", "Final Government Equity
Redemption Date", and "class A stock" are defined in the Bank Act, which
definitions are incorporated by this reference as if fully set forth herein.
"Class B1 Common Stock" - the series of Class B stock
comprising Class B stock purchased for cash after June 28, 1984.
"Code" - the Internal Revenue Code of 1986, as amended.
"Commitment Fee" - as defined in Section 2.4 hereof.
"Commitment Fee Percentage" - on any date, the applicable
percentage set forth below based upon the Ratings in effect on such date:
<PAGE>
Category 1 A Loans B Loans
A2 or higher by Moody's; .09% .07%
A or higher by S&P
Category 2
A3 by Moody's; .10% .08%
A- by S&P
Category 3
Baa1 by Moody's; .125% .10%
BBB+ by S&P
Category 4
Baa2 by Moody's .15% .125%
BBB by S&P
Category 5
Baa3 by Moody's .20% .175%
BBB- by S&P
Category 6
Lower than Baa3 by Moody's .25% .225%
Lower than BBB- by S&P
- or -
No Rating by S&P or Moody's
For purposes of the foregoing, if the Ratings shall fall within different
Categories, the Commitment Fee Percentage shall be based on the lower Rating
(and higher Commitment Fee Percentage); provided, however, in the event the
Categories in which the Ratings fall are more than one Category apart, the
Commitment Fee Percentage shall be based on the Rating that is one level
higher than the lower of the two Categories. If any Rating shall be changed
(other than as a result of a change in the rating system of the applicable
Rating Agency), such change shall be effective as of the date on which it is
first announced by the Rating Agency making such change. Each such change
with respect to the Borrowers shall apply at any time during the period
commencing
on the effective date of such change and ending on the date immediately
preceding the effective date of the next such change. If the rating system of
any Rating Agency shall change, the parties hereto shall negotiate in good
faith to amend the references to specific ratings in this definition to
reflect such changed rating system.
"Compliance Certificate" - a certificate executed by the
president or chief financial officer or treasurer of the Borrower to the
effect that, as of the effective date of the certificate, no Default or Event
of Default under this Agreement exists or would exist after action intended to
be taken by the Borrower, as described in such certificate, including, without
limitation, that the covenants set forth in Section 6.9 would not be breached
after giving effect to such action, together with a calculation in reasonable
detail, and in form and substance satisfactory to the Agent, of such
compliance.
"Consolidated Adjusted Net Income" - for any fiscal period
of the Borrower, net earnings or net loss (determined on a consolidated basis)
of the Borrower and its Subsidiaries after income taxes for such period, but
excluding from the determination of such earnings the following items
(together with the income tax effect, if any, applicable thereto): (i) the
proceeds of any life insurance policy; (ii) any gain or loss arising from the
sale of capital assets; (iii) any gain arising from any reappraisal,
revaluation or write-up of assets; (iv) any gain arising from transactions of
a non-recurring or non-operating and material nature or arising from sales or
other dispositions relating to the discontinuance of operations; (v) earnings
of any Subsidiary accrued prior to the date it became a Subsidiary;
(vi) earnings of any corporation, substantially all the assets of which have
been acquired in any manner, realized by such other corporation prior to the
date of such acquisition; (vii) net earnings of any business entity (other
than a Subsidiary) in which the Borrower or any Subsidiary has an ownership
interest unless such net earnings shall have actually been received by the
Borrower or such Subsidiary in the form of cash distributions, (viii) any
portion of the net earnings of any Subsidiary which for any reason is
unavailable for payment of dividends to the Borrower or any other Subsidiary,
(ix) the earnings of any Person to which assets of the Borrower shall have
been sold, transferred or disposed of, or into which the Borrower shall have
merged, prior to the date of such transaction, (x) any gain arising from the
acquisition of any securities of the Borrower or any of its Subsidiaries, and
(xi) any amortization of deferred or other credit representing the excess of
the equity in any Subsidiary at the date of acquisition thereof over the
amount invested in such Subsidiary.
"Consolidated Adjusted Net Worth" - at any time, with
respect to the Borrower and its Subsidiaries (determined on a consolidated
basis):
(a) the amount of capital stock plus (or minus in the case
of a deficit), the capital surplus and earned surplus of the Borrower and its
Subsidiaries, less (without duplication) the sum of:
(b) the net book value, after deducting any reserves
applicable thereto, of all items of the following character which are included
in the assets of the Borrower and its Subsidiaries:
(i) all deferred charges and prepaid expenses other
than prepaid taxes and prepaid insurance premiums;
(ii) treasury stock;
(iii) unamortized debt discount and expense and
unamortized stock discount and expense;
(iv) goodwill, the excess of the cost of assets
acquired over the book value of such assets on the books of the transferor,
the excess of the cost of investments in any Person (including any Subsidiary)
over the value of such investments on the books of such Person at the time of
making such investments, organizational or experimental expense, patents,
trademarks, copyrights, trade names and other intangibles;
(v) all receivables (other than Eurodollar deposits)
owing by Persons whose principal place of business or principal assets are
located in any jurisdiction other than the United States of America or Canada;
and
(vi) any increment resulting from any reappraisal,
revaluation or write-up of capital assets subsequent to December 31, 1991.
If the Borrower or any of its Subsidiaries shall have any Investments which
are not permitted under this Agreement, such Investments shall be excluded
from the calculation of Consolidated Adjusted Net Worth.
"Consolidated Debt" - as at any date of determination
thereof, the aggregate amount of all Indebtedness of the Borrower and its
Subsidiaries, plus, without duplication, the aggregate amount of the
obligations of the Borrower and its Subsidiaries set forth below, at such
time:
(a) the principal amount of all recourse and non-recourse
interest bearing obligations of the Borrower or any Subsidiary including,
without limitation, any such obligations bearing an implicit rate of interest,
such as Capitalized Leases, and interest bearing obligations secured by any
Lien upon Property owned by the Borrower or any Subsidiary, even though such
Person has not assumed or become liable for the payment of such obligations;
(b) the aggregate amount of all demand and term deposits
made by any Person with the Borrower or any Subsidiary (including, without
limitation, certificates of deposit issued by the Borrower or any Subsidiary);
(c) the face amount of all letters of credit issued by the
Borrower or any Subsidiary and all bankers' acceptances accepted by the
Borrower or any Subsidiary; and
(d) the aggregate amount of all assets with respect to
which the Borrower or a Subsidiary has any Asset Securitization Recourse
Liabilities in respect of promissory notes and other interest bearing
obligations sold or otherwise transferred by the Borrower or any Subsidiary
(regardless of whether such aggregate amount of assets is in excess of the
amount of such Asset Securitization Recourse Liabilities), whether for the
repurchase of defaulted notes or obligations or otherwise.
"Consolidated Earnings Available for Fixed Charges" - for
any period shall mean the sum of: (i) Consolidated Adjusted Net Income during
such period; plus (ii) to the extent deducted in determining Consolidated
Adjusted Net Income, (a) all provisions for any Federal, state or other income
taxes made by the Borrower and its Subsidiaries during such period, and
(b) Consolidated Fixed Charges during such period plus (iii) contributions
made by the Borrower to Development Corp.
"Consolidated Effective Net Worth" - at any time means the
sum of
(a) Consolidated Adjusted Net Worth at such time; plus
(b) the aggregate outstanding principal amount of Class A Notes
at such time.
"Consolidated Fixed Charges" - with respect to the Borrower
on a consolidated basis for any period shall mean the sum of: (i) all
interest and all amortization of Indebtedness, amortized discount and expense
on all Indebtedness for borrowed money of the Borrower and its Subsidiaries,
plus (ii) all Rentals payable during such period by the Borrower and its
Subsidiaries.
"Consolidated Net Earnings" - for any period, the net income
or loss of the Borrower and its Subsidiaries, as applicable (determined on a
consolidated basis for such Persons at such time), for such period, as
determined in accordance with generally accepted accounting principles in
effect at such time.
"Consolidated Senior Debt" - all unsecured Indebtedness of
the Borrower and its Subsidiaries on a consolidated basis (i) for borrowed
money (including the Indebtedness hereunder, the Senior Notes and all demand
and term deposits made by any Person with the Borrower or any of its
Subsidiaries) which is not expressly subordinate or junior to any other
Indebtedness, plus, without duplication, (ii) all "guarantees," as defined in
Section 7.3 hereof, and (iii) Asset Securitization Recourse Liabilities to the
extent, but only to the extent, that such obligations have matured.
"Controlled Group" - all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with the Borrower, are treated as a single
employer under Section 414(b), 414(c) or 414(m) of the Internal Revenue Code
of 1986, as amended, and Section 4001(a)(2) of ERISA.
"Debt Instrument" - as defined in Section 8.5 hereof.
"Default" - an event which with notice or lapse of time or
both would constitute an Event of Default.
"Development Corp." - NCB Development Corporation, a
District of Columbia non-profit corporation established pursuant to 12 U.S.C.
section 3051(b).
"Dollars" - and "$" - lawful money of the United States of
America.
"Effective Date" - May 28, 1997.
"Eligible Derivatives" - derivative Securities which are
sold in the ordinary course of the business of the Borrower and its
Subsidiaries for the purpose of hedging or otherwise managing portfolio risk.
"ERISA" - the Employee Retirement Income Security Act of
1974, as it may be amended from time to time, and the regulations thereunder.
"Event of Default" - as defined in Article 8 hereof.
"Fair Market Value" - at any time with respect to any
Property, the sale value of such Property that would be realized in an arm's
- -length sale at such time between an informed and willing buyer and an
informed and willing seller, under no compulsion to buy or sell,
respectively.
"Federal Funds Rate" - for any day, the rate charged to the
Reference Bank as reasonably determined by the Reference Bank, on overnight
federal funds transactions with member banks of the Federal Reserve System
arranged by federal funds brokers, or if such day is not a Business Day, on
the next preceding Business Day.
"Financial Statements" - the consolidated statements of
financial condition of the Borrower and its Subsidiaries as of December 31 in
the years 1994, 1995 and 1996 inclusive, and the related consolidated
statements of income and cash flows and changes in members' equity for the
fiscal years ended on such dates, in each case accompanied by reports thereon
containing opinions without qualification, except as therein noted, by
Deloitte & Touche, independent certified public accountants, and the
consolidated balance sheet of the Borrower and its Subsidiaries as of March
31, 1997 and the related consolidated statements of income and cash flows and
reconciliation of net income to net cash provided by operating activities for
the three (3) month period ended on such date.
"Fleet" - Fleet Bank, N.A., having an office at 1185 Avenue
of the Americas, New York, New York 10036.
"GAAP" - generally accepted accounting principles in the
United States of America as in effect on the date of this Agreement and
applied on a basis consistent with the Financial Statements.
"Indebtedness" - with respect to any Person, all (i)
liabilities or obligations, direct and contingent, which in accordance with
GAAP would be included in determining total liabilities as shown on the lia-
bility side of a balance sheet of such Person at the date as of which
Indebtedness is to be determined, including, without limitation, contingent
liabilities which, in accordance with such principles, would be set forth in a
specific Dollar amount on the liability side of such balance sheet; (ii)
liabilities or obligations of others for which such Person is directly or
indirectly liable, by way of guaranty (whether by direct guaranty, suretyship,
discount, endorsement, take-or-pay agreement, agreement to purchase or advance
or keep in funds or other agreement having the effect of a guaranty) or
otherwise; (iii) liabilities or obligations secured by liens on any assets of
such Person, whether or not such liabilities or obligations shall have been
assumed by it; (iv) liabilities or obligations of such Person, direct or
contingent, with respect to letters of credit issued for the account of such
Person and banker's acceptances credited for such Person; (v) obligations in
the form of demand and term deposit accounts maintained by such Person; and
(vi) Asset Securitization Recourse Liabilities to the extent, but only to the
extent, that such obligations have matured.
"Interest Period" - with respect to any LIBOR Loan, each
period commencing on the date such Loan is made or converted from a Loan or
Loans of another type, or the last day of the next preceding Interest Period
with respect to such Loan, and ending on the day that is 7 days thereafter or
the first, second, third, sixth or ninth calendar month thereafter, as the
Borrower may select as provided in Section 2.3 hereof, except that each such
Interest Period which commences on the last London Business Day of a calendar
month (or on any day for which there is no numerically corresponding day in
the appropriate subsequent calendar month) shall end on the last London
Business Day of the appropriate subsequent calendar month.
Notwithstanding the foregoing: (i) any Interest Period which commences prior
to a Payment Date shall end no later than such Payment Date if the aggregate
principal amount of the Loans or portions thereof to which such Interest
Period would be applicable would include any portion of the aggregate
principal amount of the Loans which is due and payable on such Payment Date;
(ii) each Interest Period which would otherwise end on a day which is not a
Business Day shall end on the next succeeding Business Day (or, in the case of
an Interest Period for LIBOR Loans, if such next succeeding London Business
Day falls in the next succeeding calendar month, on the next preceding London
Business Day); (iii) no more than fifteen (15) Interest Periods for LIBOR
Loans shall be in effect at the same time; (iv) any Interest Period for any
type of A Loan which commences before the A Commitment Termination Date shall
end no later than the A Commitment Termination Date and any Interest Period
for any type of B Loan which commences before the B Commitment Termination
Date shall end no later than the B Commitment Termination Date; and (v)
notwithstanding clauses (i) and (iv) above, no Interest Period shall have a
duration of less than seven (7) days. In the event that the Borrower fails to
select the duration of any Interest Period for any Loan within the time period
and otherwise as provided in Section 2.3 hereof, such Loan will be automati-
cally converted into a Prime Rate Loan on the last day of the preceding
Interest Period for such Loan.
"Investment" - in any Person by the Borrower:
(a) the amount paid or committed to be paid, or the value
of property or services contributed or committed to be contributed, by the
Borrower for or in connection with the acquisition by the Borrower of any
stock, bonds, notes, debentures, partnership or other ownership interests or
other securities of such Person; and
(b) the amount of any advance, loan or extension of credit
to, or guaranty or other similar obligation with respect to any Indebtedness
of, such Person by the Borrower and (without duplication) any amount committed
to be advanced, loaned, or extended to, or the payment of which is committed
to be assured by a guaranty or similar obligation for the benefit of, such
Person by the Borrower.
"IRS" - Internal Revenue Service.
"Latest Balance Sheet" - as defined in Section 3.9 hereof.
"LIBOR Base Rate" - with respect to any LIBOR Loan: (i) for
any Interest Period therefor which is longer than seven (7) days, the rate per
annum (rounded upwards, if necessary, to the nearest 1/16 of 1%) quoted by the
Reference Bank at approximately 10:00 a.m. London time (or as soon thereafter
as practicable) two (2) London Business Days prior to the first day of such
Interest Period for the offering by the Reference Bank to leading banks in the
London interbank market of Dollar deposits having a term comparable to such
Interest Period and in an amount comparable to the principal amount of the
LIBOR Loan to be made by the Banks to which such Interest Period relates, and
(ii) for any Interest Period equal to seven (7) days, the one-week Eurodollar
offered side rate displayed on the Telerate screen on Page 4756 thereof at
approximately 10:00 a.m., New York time on the first day of such Interest
Period (the "One-Week Rate"). If the Reference Bank is not participating in
any LIBOR Loans during any Interest Period therefor (pursuant to Section 2.22
hereof or for any other reason), the LIBOR Base Rate for such Loans for such
Interest Period shall be determined by reference to the amount of the Loan
which the Reference Bank would have made had it been participating in such
Loans.
"LIBOR Loans" - Loans the interest on which is determined on
the basis of rates referred to in the definition of "LIBOR Base Rate" in this
Article 1.
"LIBOR Rate" - for any LIBOR Rate Loan for any Interest
Period therefor, the rate per annum (rounded upwards, if necessary, to the
nearest 1/100 of 1%) determined by the Agent to be equal to: (a) the LIBOR
Base Rate for such Loan for such Interest Period; divided by (b) 1 minus the
Reserve Requirement for such Loan for such Interest Period. The Agent shall
use its best efforts to advise the Borrower of the LIBOR Rate as soon as
practicable after each change in the LIBOR Rate; provided, however, that the
failure of the Agent to so advise the Borrower on any one or more occasions
shall not affect the rights of the Banks or the Agent or the obligations of
the Borrower hereunder.
"Lien" - any mortgage, deed of trust, pledge, security
interest, encumbrance, lien or charge of any kind (including any agreement to
give any of the foregoing), any conditional sale or other title retention
agreement, any lease in the nature of any of the foregoing, and the filing of
or agreement to give any financing statement under the Uniform Commercial Code
of any jurisdiction.
"Loan" and "Loans" - as defined in subsection 2.1(b) hereof.
"Loan Documents" - this Agreement, the Notes, and all other
documents executed and delivered in connection herewith or therewith,
including all amendments, modifications and supplements of or to all such
documents.
"London Business Day" - a Business Day on which dealings in
Dollar deposits are carried out in the London interbank market.
"Majority Banks" - Banks having 66-2/3% of the aggregate
amount of the Total Commitments whether or not Loans or Swing Line Loans are
outstanding hereunder.
"Moody's" - Moody's Investors Service, Inc.
"NCB Mortgage" - NCB Mortgage Corporation, a Delaware
corporation.
"NCCB Senior Obligations" - at any date of determination
thereof, with respect to the Borrower, the sum of:
(a) the aggregate unpaid principal amount of Senior Debt,
plus
(b) the aggregate amount of all Capitalized Leases, plus
(c) Restricted Guarantees computed on the basis of total
outstanding contingent liability, plus
(d) Asset Securitization Recourse Liabilities of the
Borrower (meeting the conditions set forth in either clause (i) or clause (ii)
below):
(i) to the extent, but only to the extent, that such
obligations arise from the Borrower's obligation to repurchase receivables or
other assets as a result of a default in payment by the obligor thereunder or
any other default in performance by such obligor under any agreement related
to such receivables; or
(ii) if the Borrower shall maintain a reserve account
containing Cash or Securities in respect of any such obligations or shall
retain or purchase a subordinated interest therein, to the extent, but only to
the extent, of the amount of such reserve account or subordinated interest.
"Note" and "Notes" - individually, each of the A Notes, the
B Notes and the Swing Line Note, and collectively, all of them.
"One-Week Rate" - as defined within the definition of LIBOR
Base Rate in this Article 1.
"Original Loan Agreement" - as defined in the first preamble
hereof.
"Paid-in-Capital" - as determined in accordance with GAAP.
"Payment Dates" - each Quarterly Date in each year
commencing with the June Quarterly Date.
"PBGC" - as defined in Section 3.17 hereof.
"Permitted Liens" - (i) pledges or deposits by the Borrower
under workman's compensation laws, unemployment insurance laws, social
security laws, or similar legislation, or good faith deposits in connection
with bids, tenders, contracts (other than for the payment of Indebtedness of
the Borrower), or leases to which the Borrower is a party, or deposits to
secure public or statutory obligations of the Borrower or deposits of cash or
U.S. Government Bonds to secure surety, appeal, performance or other similar
bonds to which the Borrower is a party, or deposits as security for contested
taxes or import duties or for the payment of rent; (ii) Liens imposed by law,
such as carriers', warehousemen's, materialmen's and mechanics' liens, or
Liens arising out of judgments or awards against the Borrower with respect to
which the Borrower at the time shall currently be prosecuting an appeal or
proceedings for review; (iii) Liens for taxes not yet subject to penalties for
non-payment and Liens for taxes the payment of which is being contested as
permitted by Section 6.6 hereof; and (iv) Liens incidental to the conduct of
the business of the Borrower or to the ownership of its property which were
not incurred in connection with Indebtedness of the Borrower, all of which
Liens do not in the aggregate materially detract from the value of the
properties to which they relate or materially impair their use in the
operation of the business of the Borrower.
"Person" - an individual, a corporation, a partnership, a
joint venture, a trust or unincorporated organization, a joint stock company
or other similar organization, a government or any political subdivision
thereof, a court, or any other legal entity, whether acting in an undivided
fiduciary or other capacity.
"Plan" - at any time an employee pension benefit plan which
is covered by Title IV of ERISA or subject to the minimum funding standards
under Section 412 of the Code and is either (i) maintained by the Borrower or
any member of the Controlled Group for employees of the Borrower, or by the
Borrower for any other member of such Controlled Group or (ii) maintained
pursuant to a collective bargaining agreement or any other arrangement under
which more than one employer makes contributions and to which the Borrower or
any member of the Controlled Group is then making or accruing an obligation to
make contributions or has within the preceding five plan years made contribu-
tions.
"Post-Default Rate" - (i) in respect of any Loans not paid
when due (whether at stated maturity, by acceleration or otherwise), a rate
per annum during the period commencing on the due date until such Loans are
paid in full equal to (a) if such Loans are Prime Rate Loans, 2% above the
Prime Rate as in effect from time to time for Prime Rate Loans, or (b) if such
Loans are LIBOR Loans, 2% above the rate of interest in effect thereon at the
time of such default until the end of the then current Interest Period
therefor and, thereafter, 2% above the Prime Rate as in effect from time to
time for Prime Rate Loans; and (ii) in respect of other amounts payable by the
Borrower hereunder (other than interest) not paid when due (whether at stated
maturity, by acceleration or otherwise), a rate per annum during the period
commencing on the due date until such other amounts are paid in full equal to
2% above the Prime Rate as in effect from time to time for Prime Rate Loans.
"Prime Rate" - the interest rate established from time to
time by Fleet as its prime rate at the Principal Office. Notwithstanding the
foregoing, the Borrower acknowledges the fact that Fleet may regularly make
domestic commercial loans at rates of interest less than the rate of interest
referred to in the preceding sentence. Each change in any interest rate
provided for herein based upon the Prime Rate resulting from a change in the
Prime Rate shall take effect at the time of such change in the Prime Rate.
"Prime Rate Loans" - Loans (including Swing Line Loans)
which bear interest at a rate based upon the Alternate Base Rate.
"Principal Office" - the principal office of Fleet presently
located at 10 Exchange Place, Jersey City, New Jersey 07302.
"Property" - any interest in any kind of property or asset,
whether real, personal or mixed, or tangible or intangible.
"Qualified Assets" - as at any date of determina-tion
thereof, the sum of the following items (a), (b) and (c) owned by the
Borrower:
(a) the principal amount of all promissory notes and other
interest bearing obligations acquired by the Borrower in the ordinary course
of its business less (i) reserves for credit losses applicable thereto, and
(ii) unearned income;
(b) Cash on hand and in banks; and
(c) Investments other than "Restricted Investments" (as
such term is defined in the Senior Note Agreements as in effect on the date
hereof).
"Quarterly Dates" - the last day of each December, March,
June and September, the first of which shall be the first such day after the
date of this Agreement, provided that, if any such date is not a Business Day
or a London Business Day, the relevant Quarterly Date shall be the next
succeeding Business Day (for Prime Rate Loans or payments of the Commitment
Fee) or London Business Day (for LIBOR Loans) (or, in the case of LIBOR Loans,
if the next succeeding London Business Day falls in the next succeeding
calendar month, then the next preceding London Business Day).
"Quarterly Fiscal Dates" - the last day of the Borrower's
fiscal quarters.
"Ratings" - shall mean the ratings from time to time
established by the Rating Agencies for senior, unsecured, non-credit enhanced
long-term debt of the Borrower.
"Ratings Agencies" - Moody's and S&P.
"Reference Bank" - (i) for purposes of determining the rates
referred to in the definition of "LIBOR Base Rate" in this Article 1, the
non-United States office or offices or international banking facility or
facilities of Fleet as Fleet may from time to time select, and (ii) for all
other purposes hereunder, the Principal Office.
"Refunded Swing Line Loans" - as defined in subsection
2.1(c) hereof.
"Regulation D" - Regulation D of the Board of Governors of
the Federal Reserve System, as the same may be amended or supplemented from
time to time.
"Regulatory Change" - as to any Bank, any change after the
date of this Agreement in United States federal, state or foreign laws or
regulations (including Regulation D) or the adoption or making after such date
of any interpretations, directives or requests applying to a class of banks
including such Bank of or under any United States federal, state, or foreign
laws or regulations (whether or not having the force of law) by any court or
governmental or monetary authority charged with the interpretation or
administration thereof.
"Rentals" - shall mean and include all fixed rentals
(including as such all payments which the lessee is obligated to make to the
lessor on termination of the lease or surrender of the property) payable by
the Borrower, as lessee or sublessee under a lease of real or personal
property, but shall be exclusive of any amounts required to be paid by the
Borrower (whether or not designated as rents or additional rents) on account
of maintenance, repairs, insurance, taxes and similar charges. Fixed rents
under any so-called "percentage leases" shall be computed solely on the basis
of the minimum rents, if any, required to be paid by the lessee regardless of
sales volume or gross revenues.
"Reserve Requirement" - for any LIBOR Loans for any Interest
Period therefor, the average maximum rate at which reserves (including any
marginal, supplemental or emergency reserves) are required to be maintained
during such Interest Period under Regulation D by member banks of the Federal
Reserve System in New York City with deposits exceeding One Billion Dollars
against "Eurocurrency liabilities" (as such term is used in Regulation D).
Without limiting the effect of the foregoing, the Reserve Requirement shall
reflect any other reserves required to be maintained by such member banks by
reason of any Regulatory Change against: (i) any category of liabilities which
includes deposits by references to which the LIBOR Rate for LIBOR Loans is to
be determined as provided in the definition of "LIBOR Base Rate" in this
Article 1, or (ii) any category of extensions of credit or other assets which
include LIBOR Loans.
"Restricted Guarantees" - at any time means all "guarantees"
(as defined in Section 7.3 hereof) by the Borrower of obligations of others
that constitute sum certain obligations at the time such Guarantees are
incurred.
"Retained Earnings" - the consolidated retained earnings
account (whether allocated or unallocated) of the Borrower and its
Subsidiaries determined as of any date in accordance with GAAP consistent with
those applied in the preparation of the Borrower's consolidated statement of
financial condition for the fiscal year ended December 31, 1996.
"S&P" - Standard & Poor's Corporation.
"Securities Act" - the Securities Act of 1933, as amended.
"Security" - the meaning ascribed thereto in Section 2(1) of
the Securities Act; provided, however, that Asset Securitization Recourse
Liabilities shall not constitute "Securities" except (i) to the extent that
such obligations arise from the Borrower's obligation to repurchase
receivables or other assets as a result of a default in payment by the obligor
thereunder or any other default in performance by such obligor under any
agreement related to such receivables or (ii) if the Borrower shall maintain
a reserve account containing Cash or Securities in respect of any such
obligations or shall retain or purchase a subordinated interest therein to the
extent of the amount of such reserve account or subordinated interest.
"Selected Banks" - the Banks which are signatories to this
Agreement and the one hundred largest commercial banks which either are United
States national banking associations or are chartered under the laws of a
state of the United States and which have ratings by Thomson BankWatch, Inc.
no lower than B/C.
"Senior Debt" - all Indebtedness of the Borrower for
borrowed money that is not expressed to be subordinate or junior to any other
Indebtedness, including, without limitation, under this Agreement or the
Senior Note Agreements.
"Senior Notes" - the Senior Notes issued by the Borrower in
the aggregate principal amount of $137,000,000 under the terms and conditions
of the Senior Note Agreements.
"Senior Note Agreements" - collectively, (i) the separate
Assumption Agreement and Amended and Restated Senior Note Agreements, dated as
of December 1, 1993, as amended December 10, 1996 in respect of the Borrower's
Amended and Restated 8.18% Series A Senior Notes due June 24, 1997, Amended
and Restated 8.32% Series B Senior Notes due December 24, 1997, and 8.44%
Series C Senior Notes due June 24, 1998; (ii) Note Purchase Agreement dated as
of December 16, 1994, as amended December 5 and December 10, 1996 in respect
of the Borrower's 8.84% Series A Senior Notes due March 31, 2000, 8.85% Series
B Senior Notes due March 31, 2000, and 7.96% Series C Senior Notes due March
31, 2000; (iii) Master Shelf Agreement dated as of December 30, 1994, as
amended December 6, 1996, in respect of up to $50,000,000 of Senior Notes,
pursuant to which there were issued $30,000,000 in 7.15% Senior Notes due
December 29, 2001; and (iv) Senior Note Agreements dated December 15, 1995, as
amended December 6, 1996, in respect of the Borrower's 6.60% Series D Senior
Notes due December 31, 2002, and 6.59% Series E Senior Notes due December 31,
2002.
"SPV" - the meaning assigned to such term in the definition
of "Asset Securitization" in this Article 1, and, NCB I, Inc. and any other
Subsidiary of the Borrower having powers limited to the holding of regular or
residual interests arising out of Asset Securitizations.
"Subsidiary" - with respect to any Person, any corporation,
partnership or joint venture whether now existing or hereafter organized or
acquired: (i) in the case of a corporation, of which a majority of the
securities having ordinary voting power for the election of directors (other
than securities having such power only by reason of the happening of a contin-
gency) are at the time owned by such Person and/or one or more Subsidiaries of
such Person or (ii) in the case of partnership or joint venture in which such
Person is a general partner or joint venturer or of which a majority of the
partnership or other ownership interests are at the time owned by such Person
and/or one or more of its Subsidiaries.
"Swing Line Loan Commitment" - $20,000,000 as the same may
be reduced pursuant to Section 2.2 hereof.
"Swing Line Loan(s)" - Loans made by Fleet, in its capacity
as Swingline Lender, pursuant to subsection 2.1(c) hereof.
"Swing Line Lender" - Fleet in its individual capacity as
lender of Swing Line Loans under this Agreement.
"Total Commitment" - as to each Bank, the sum of its A
Commitment and its B Commitment.
"Unused Commitment" - as at any date, for each Bank, the
difference, if any, between: (i) the Total Commitment for such Bank as the
same may be reduced pursuant to Sections 2.1, 2.2 and 2.3 hereof; and (ii) the
then aggregate outstanding principal amount of all Loans and Swing Line Loans
made by such Bank.
(b) Any accounting terms used in this Agreement which are not
specifically defined shall have the meanings customarily given to them in
accordance with GAAP, except that references in Article 5 to GAAP shall be
deemed to refer to such principles as in effect on the date of the financial
statements delivered pursuant thereto.
(c) This Agreement shall become effective, and the Original Loan
Agreement shall be amended and restated pursuant hereto, on the Effective
Date, provided that all of the conditions precedent set forth in Section 4.1
hereof shall have been satisfied on or before such date.
<PAGE>
Article 2. Commitments and Loans.
Section 2.1 Loans.
(a) A Loans. Each Bank hereby severally agrees to make
loans to the Borrower during the A Credit Period to and including the A Com-
mitment Termination Date in an aggregate principal amount at any one time
outstanding up to, but not exceeding, the A Commitment of such Bank as then in
effect (individually an "A Loan" and, collectively, the "A Loans"). Subject
to the terms of this Agreement, during the A Credit Period, the Borrower may
borrow, prepay (as provided in Section 2.9 hereof) and reborrow the amount of
the A Commitments by means of Prime Rate Loans or LIBOR Loans and convert A
Loans of one type into A Loans of another type (as provided in Section 2.8
hereof).
(b) B Loans. (i) Each Bank hereby severally agrees to
make loans to the Borrower during the B Credit Period to and including the B
Commitment Termination Date in an aggregate principal amount at any one time
outstanding up to, but not exceeding, the B Commitment of such Bank as then in
effect (individually a "B Loan" and, collectively, the "B Loans"; and together
with the A Loans, collectively referred to as the "Loans" and individually a
"Loan"). Subject to the terms of this Agreement, during the B Credit Period
the Borrower may borrow, prepay (as provided in Section 2.9 hereof) and
reborrow the amount of the B Commitments by means of Prime Rate Loans or LIBOR
Loans and convert B Loans of one type into B Loans of another type (as
provided in Section 2.8 hereof).
(ii) The B Commitment Termination Date may be
extended for a one year period upon the satisfaction of the following
conditions:
(A) The Borrower shall have given notice to
the Agent and the Banks of its desire to extend the then current B Commitment
Termination Date at least one hundred twenty (120) days prior to the then
current B Commitment Termination Date; and
(B) All of the Banks shall have agreed in
writing to such extension sixty (60) days prior to the then current B
Commitment Termination Date.
(c) Swing Line Loans.
(i) The Swing Line Lender hereby agrees, subject to
the limitations set forth below with respect to the maximum amount of Swing
Line Loans permitted to be outstanding from time to time, to make a portion of
the Swing Line Lender's B Commitment available to the Borrower from time to
time during the period from the Effective Date through but excluding the B
Commitment Termination Date in an aggregate principal amount of up to the
Swing Line Loan Commitment by making Swing Line Loans to the Borrower. In no
event shall (A) the aggregate principal amount of the Swing Line Loans
outstanding at any time exceed the Swing Line Loan Commitment, (B) the
aggregate principal amount of B Loans made by the Swing Line Lender and the
Swing Line Loans outstanding at any time exceed the B Commitment of the Swing
Line Lender as then in effect, or (C) the Swing Line Loan Commitment exceed
the Swing Line Lender's B Commitment.
(ii) The Swing Line Lender's Swing Line Loan
Commitment shall expire on the B Commitment Termination Date and the
outstanding principal amount of the Swing Line Loans shall be paid in full no
later than the B Commitment Termination Date. Amounts borrowed by the
Borrower under this subsection 2.1(c) may be by means of Prime Rate Loans
only.
(iii) (A) The Swing Line Lender shall give each Bank
notice of the making of each Swing Line Loan on the date such Swing Line Loan
is made and each Bank hereby agrees, subject to this subsection, to make a B
Loan in an amount equal to such Bank's pro rata share (according to but not in
excess of its B Commitment) of the amount of the Swing Line Loans ("Refunded
Swing Line Loans") outstanding on the next Business Day immediately following
the date such notice is given. In the case of B Loans made by the Banks under
the immediately preceding sentence, each such Bank shall make the amount of
its B Loan available to the Swing Line Lender in same day funds at the
Principal Office not later than 1:00 p.m. (New York time) on the Business Day
next succeeding the Business Day after the date such notice is given
regardless of whether the conditions precedent set forth in Section 4.2 hereof
to the making of the Swing Line Loan are then satisfied provided such
conditions precedent were satisfied at the time the Swing Line Lender made
such Swing Line Loan. The proceeds of such B Loans shall be immediately
delivered to the Swing Line Lender and applied to repay the Refunded Swing
Line Loans. On the day such B Loans are made, Refunded Swing Line Loans shall
be deemed to be paid with the proceeds of the B Loan made by each Bank and
such portion of the Swing Line Loans deemed to be so paid shall no longer be
outstanding as Swing Line Loans and shall be due as a B Loan made by each Bank
(including Fleet).
(B) The Borrower authorizes the Swing Line
Lender to charge the Borrower's account with the Swing Line Lender in order to
immediately pay the Swing Line Lender the amount of such Refunded Swing Line
Loans to the extent amounts received from the Banks are not sufficient to
repay in full such Refunded Swing Line Loans.
(C) If any portion of any amount paid (or
deemed to be paid) to the Swing Line Lender should be recovered from the Swing
Line Lender by or on behalf of the Borrower in bankruptcy, by assignment for
the benefit of creditors or otherwise, the loss of the amount so recovered
shall be ratably shared among all Banks proportionately in accordance with
their respective B Commitments; provided, however, that in the case of amounts
recovered from the Swing Line Lender in respect of amounts charged against the
Borrower's account, the loss of the amount so recovered shall be shared
ratably by all the Banks whose B Loans made pursuant to this paragraph were
less than each such respective Bank's pro rata share of the Refunded Swing
Line Loans.
(D) Each Bank's obligation to make the B Loans
referred to in this paragraph shall be absolute and unconditional provided
that the conditions precedent to the making of Swing Line Loan(s) set forth in
Section 4.2 hereof are satisfied at the time the Swing Line Lender made such
Swing Line Loan and shall not be affected by any circumstance, including,
without limitation, (i) any set-off, counterclaim, recoupment, defense or
other right which such Bank may have against the Swing Line Lender, the
Borrower, or any other Person for any reason whatsoever; (ii) the occurrence
or continuance of an Event of Default; (iii) any adverse change in the
condition (financial or otherwise) of the Borrower or any of its Subsidiaries;
(iv) the acceleration or maturity of any Loans or the termination of the B
Commitments after the making of any Swing Line Loan; (v) any breach of this
Agreement by any party to this Agreement, Agent or any other Bank; or (vi) any
other circumstance, happening or event whatsoever, whether or not similar to
any of the foregoing.
(iv) In the event that the Borrower or any of its
Subsidiaries has filed for protection under the bankruptcy code or otherwise
if the Swing Line Lender requests, each Bank shall acquire without recourse or
warranty an undivided participation interest equal to such Bank's pro rata
share (according to but not in excess of its B Commitment) of any Swing Line
Loan otherwise required to be repaid by such Bank pursuant to the preceding
paragraph by paying to the Swing Line Lender on the date on which such Bank
would otherwise have been required to make a B Loan in respect of such Swing
Line Loans pursuant to the preceding paragraph in immediately available funds,
an amount equal to such Bank's pro rata share (according to its B Commitment)
of such Swing Line Loan and no B Loans shall be made by such Bank pursuant to
the preceding paragraph. If such amount is not in fact made available to the
Swing Line Lender by that Bank on the date when B Loans would otherwise be
required to be made pursuant to the preceding paragraph, the Swing Line Lender
shall be entitled to recover such amount on demand from that Bank together
with interest accrued from such date at the customary rate set by the Swing
Line Lender for the correction of errors among banks for three Business Days
and thereafter at the rate of interest then applicable to Prime Rate Loans.
From and after the date on which any Bank purchases an undivided participation
interest in a Swing Line Loan pursuant to this paragraph, the Swing Line
Lender shall promptly distribute to such Bank such Bank's pro rata share
(according to its B Commitment) of all payments of principal and interest in
respect of such Swing Line Loans.
(v) A copy of each notice given by the Swing Line
Lender to the Banks pursuant to the subparagraph (iii) above shall be promptly
delivered by the Swing Line Lender to the Borrower. Upon the making of a B
Loan by a Bank, the amount so funded shall become due under such Bank's B Note
and shall no longer be owed under the Swing Line Note.
(vi) Notwithstanding anything herein to the contrary,
the Swing Line Lender shall not be obligated to make any Swing Line Loans if
it has elected after the occurrence and during the continuation of an Event of
Default not to make Swing Line Loans and has notified the Borrower in writing
or by telephone (promptly confirmed in writing) of such election. The Swing
Line Lender shall promptly give notice to the Banks of such election not to
make Swing Line Loans.
Section 2.2 Reductions in Total Commitments.
The Borrower shall be entitled to reduce the Total
Commitments provided that the Borrower shall give notice of such reduction to
the Banks as provided in Section 2.3 hereof and that any partial reduction of
the Total Commitments shall be in an aggregate amount equal to Ten Million
($10,000,000) Dollars or an integral multiple thereof. Any such reduction
shall be permanent and irrevocable. Any reduction of the B Commitments made
pursuant to this Section 2.2, Section 2.3 or Article 8 hereof which reduces
the B Commitments below the then current amount of the Swing Line Loan
Commitment shall result in an automatic corresponding reduction of the Swing
Line Loan Commitment to the amount of the B Commitment, as so reduced, without
any further action on the part of the Swing Line Lender.
Section 2.3 Notices Relating to Loans
and Swing Line Loans.
(a) The Borrower shall give the Agent notice of each
borrowing, reborrowing, conversion and prepayment of each Loan and of the
duration of each Interest Period applicable to each LIBOR Rate Loan and each
termination or reduction of the Total Commitment (in each case, a "Borrowing
Notice"), as follows:
(i) In the case of the borrowing or reborrowing of a
Prime Rate Loan (other than a Swing Line Loan which is governed by subsection
(b) hereof) or a One-Week Rate Loan, the Borrower shall give notice (by telex,
telegram or telecopier, or by telephone confirmed in writing promptly
thereafter) to the Agent no later than 1:30 p.m., New York time, on the date
of such borrowing.
(ii) In the case of the borrowing or reborrowing of a
LIBOR Loan (other than a One-Week Rate Loan), the Borrower shall give notice
(by telex, telegram or telecopier or by telephone confirmed in writing
promptly thereafter) to the Agent three (3) London Business Days prior to such
borrowing of the proposed Loan hereunder.
(iii) In the case of each notice of conversion of
Loans of one type into Loans of another type, prepayment and in the case of
each reduction of the Total Commitment, the Borrower shall give notice (by
telex, telegram or telecopier or by telephone confirmed in writing promptly
thereafter) to the Agent three (3) Business Days prior to the date of the
proposed conversion, prepayment or reduction of Total Commitments except as
otherwise provided in subsection 2.25(b) hereof.
Without in any way limiting the Borrower's obligation to confirm
in writing any telephonic notice, the Agent may act without liability upon the
basis of a telephonic notice believed by the Agent in good faith to be from
the Treasurer or Assistant Treasurer of the Borrower or any employee of the
Borrower designated in writing to the Agent by the Treasurer of the Borrower
prior to the receipt of written confirmation. In each such case, the Borrower
hereby waives the right to dispute the Agent's record of the terms of such
telephonic notice. Each such notice of borrowing, reborrowing, conversion or
prepayment shall specify the amount (subject to Section 2.1 hereof) and type
of the Loans (including whether the Loan to be borrowed is an A Loan or a B
Loan) to be borrowed, converted or prepaid (and, in the case of a conversion,
the type of Loans to result from such conversion), the maturity date if less
than 270 days, the duration of each Interest Period applicable to each LIBOR
Loan, the date of borrowing, reborrowing, conversion or prepayment (which
shall be a Business Day in the case of each borrowing, reborrowing,
conversion, prepayment of Prime Rate Loans and a London Business Day in the
case of each borrowing, conversion or prepayment of LIBOR Loans). Each such
notice of the duration of an Interest Period shall specify the Loans to which
such Interest Period is to relate. Each such notice shall also direct the
Agent to disburse the proceeds of such Loan by wire transfer or otherwise, but
in any event, in immediately available funds, by depositing such proceeds in
an account of the Borrower, designated by the Borrower, and maintained with
the Agent. Any such Loans so made shall be conclusively presumed to have been
made to or for the benefit of the Borrower when deposited to any account of
the Borrower with the Agent even though Persons, other than those authorized
to borrow on behalf of the Borrower, may have authority to draw against such
account. The Agent shall notify the Banks of the content of each such notice
promptly after its receipt thereof.
(b) In the case of the borrowing or reborrowing of a Swing
Line Loan, the Borrower shall give notice (by telex, telegram, or telecopier
or by telephone confirmed in writing promptly thereafter) to the Swing Line
Lender no later than 3:30 p.m., New York time, on the date of such borrowing.
Section 2.4 Fees.
The Borrower shall pay to the Agent for the account of each
Bank a commitment fee (the "Commitment Fee") on the amount of each Bank's
Commitment, for the period from the date hereof to and including the earlier
of the date such Bank's Total Commitment is terminated or the A Commitment
Termination Date, at the rate per annum equal to the Commitment Fee Percentage
from time to time in effect on the Total Commitments. The accrued Commitment
Fee shall be payable on the Quarterly Dates, and on the earlier of the date
(i) the Total Commitments are terminated, or (ii) the A Commitment Termination
Date.
Section 2.5 Lending Offices.
The Loans of each type made by each Bank shall be made and
maintained at such Bank's Applicable Lending Office for Loans of such type.
The Swing Line Loans made by the Swing Line Lender shall be made and
maintained at the Swing Line Lender's Applicable Lending Office.
Section 2.6 Several Obligations.
The failure of any Bank to make any Loan to be made by it on
the date specified therefor shall not relieve the other Banks of their
respective obligations to make their Loans on such date, but no Bank shall be
responsible for the failure of the other Banks to make Loans to be made by
such other Banks.
Section 2.7 Borrowings.
(a) The Borrower shall give the Agent notice of each
borrowing hereunder as provided in Section 2.3 hereof. Not later than 3:00
p.m. on the date specified for each borrowing hereunder (other than a
borrowing in respect of a Swing Line Loan which is governed by subsection
2.1(c) hereof), each Bank shall transfer to the Agent, by wire transfer or
otherwise, but in any event in immediately available funds, the amount of the
Loan to be made by it on such date, and the Agent, upon its receipt thereof,
shall disburse such sum in accordance with the directions of the Borrower
contained in the Borrowing Notice relating to such Loan.
(b) Notwithstanding anything contained in any Borrowing
Notice to the contrary, the Loans (other than Swing Line Loans) shall be
disbursed in the following order of priority: (i) first, the A Loans, then
(ii) the B Loans.
Section 2.8 Conversions of Loans.
The Borrower shall have the right to convert Loans of one
type into Loans of another type from time to time, provided that: (i) the
Borrower shall give the Agent notice of each such conversion as provided in
Section 2.3 hereof; (ii) LIBOR Loans may be converted only on the last day of
an Interest Period for such Loans; and (iii) except as required by Sections
2.23, or 2.24 hereof, no Prime Rate Loan may be converted into a LIBOR Loan if
on the proposed date of conversion a Default or an Event of Default exists.
Notwithstanding the foregoing, Swing Line Loans may not be converted into
LIBOR Loans. The Agent shall use its best efforts to notify the Borrower of
the effectiveness of such conversion, and the new interest rate to which the
converted Loans are subject, as soon as practicable after the conversion; pro-
vided, however, that any failure to give such notice shall not affect the
Borrower's obligations, or the Agent's or the Banks' rights and remedies,
hereunder in any way whatsoever.
Section 2.9 Prepayments.
(a) The Borrower shall have the right to prepay the Prime
Rate Loans (other than the Swing Line Loans) from time to time in whole or in
part, provided that the Borrower shall give the Agent notice of each such
prepayment as provided in Section 2.3 hereof.
(b) All prepayments of the Loans shall be made together
with payment of all interest accrued on the amount prepaid, but without
premium or penalty.
Section 2.10 Use of Proceeds of Loans.
The proceeds of the Loans made hereunder may be used by the
Borrower solely: (A) for the repayment in full of all indebtedness outstanding
under the Original Loan Agreement, (b) general corporate purposes, and (c) for
working capital purposes, including to finance the Borrower's loan
originations and to back the issuance of commercial paper.
Section 2.11 Payment of Loans.
(a) With respect to each Prime Rate Loan or LIBOR Loan
made hereunder in respect of the A Commitment, the Borrower shall pay to the
Agent for the account of the Banks on the earliest of the A Commitment
Termination Date or 270 days after the making of such A Loan or such shorter
period as the Borrower shall specify in the Borrowing Notice in connection
with such A Loan, the unpaid principal of such Prime Rate Loan or LIBOR Loan
outstanding on such date.
(b) With respect to each Prime Rate Loan or LIBOR Loan
made hereunder in respect of the B Commitment, the Borrower shall pay to the
Agent for the account of the Banks on the earliest of the B Commitment
Termination Date or 270 days after the making of such B Loan or such shorter
period as the Borrower shall specify in the Borrowing Notice in connection
with such B Loan, the unpaid principal of such Prime Rate Loan or LIBOR Loan
outstanding on such date.
(c) With respect to each Swing Line Loan made hereunder,
the Borrower shall pay to the Swing Line Lender on the B Commitment
Termination Date the unpaid principal of any Swing Line Loan outstanding on
such date.
Section 2.12 Interest.
The Borrower shall pay to the Agent for the account of each
Bank interest on the unpaid principal amount of each Loan and each Swing Line
Loan, if any, made by such Bank for the period commencing on the date of such
Loan until such Loan shall be paid in full, at the following rates per annum:
(a) During such periods such Loan is a Prime Rate
Loan, the Alternate Base Rate; provided, however, that the interest rate
applicable to any Prime Rate Loan on any day during the period commencing on
December 15 of any year and ending on January 2 of the following year shall be
equal to the sum of (x) the Federal Funds Rate charged to the Reference Bank
(as reasona-bly determined by the Reference Bank) on overnight federal funds
transfers arranged by federal funds brokers with member banks of the Federal
Reserve System (or, if such day is not a Business Day, on the next preceding
Business Day) plus (y) 1.5%; and
(b) During such periods such Loan is a LIBOR Loan,
for each Interest Period relating thereto, the LIBOR Rate for such Loan for
such Interest Period plus the Applicable Margin.
(c) For any day when the aggregate outstanding
principal amount of Loans shall be greater than $156,000,000, in addition to
the interest otherwise due and payable hereunder, the Borrower shall pay to
the Agent for the account of each Bank Additional Interest on the aggregate
amount of all outstanding Loans. Such interest shall commence to accrue on
each date (and so long as) the aggregate principal amount of Loans is in
excess of $156,000,000 and shall be payable as set forth in subsection (d)
below.
(d) Notwithstanding the foregoing, the Borrower
shall pay interest on any Loan or any installment thereof, and on any other
amount payable by the Borrower hereunder (other than interest) which shall not
be paid in full when due (whether at stated maturity, by acceleration or
otherwise) for the period commencing on the due date thereof until the same is
paid in full at the applicable Post-Default Rate. Except as hereinafter
provided, accrued interest on each Loan shall be payable (a) in the case of a
Prime Rate Loan, quarterly on the Quarterly Dates, (b) in the case of a LIBOR
Loan, on the last day of each Interest Period for such Loan (and, if such
Interest Period exceeds three months' duration, quarterly, commencing on the
first quarterly anniversary of the first day of such Interest Period), and
(c) in the case of any Loan, upon the payment or prepayment thereof or the
conversion thereof into a Loan of another type (but only on the principal so
paid, prepaid or converted). Additional Interest will be deemed to be payable
first on outstanding Prime Rate Loans and next on outstanding LIBOR Loans and
will be paid quarterly in arrears on the Quarterly Dates. Interest which is
payable at the Post-Default Rate shall be payable from time to time on demand
of the Agent or any Bank. Promptly after the establishment of any interest
rate provided for herein or any change therein, the Agent will notify the
Banks and the Borrower thereof.
Section 2.13 Notes.
(a) The A Loans made by each Bank shall be evidenced by a
single promissory note of the Borrower (a "A Note" and, collectively, the "A
Notes") in substantially the form of Exhibit A-1 hereto, dated the Effective
Date, payable to the order of such Bank in a principal amount equal to such
Bank's A Commitment as originally in effect and otherwise duly completed. All
A Loans made by each Bank hereunder and all payments and prepayments made on
account of the principal thereof, and all conversions of such A Loans shall be
recorded by such Bank on the schedule attached to the relevant A Note
(provided that any failure by such Bank to make any such endorsement shall not
affect the obligations of the Borrower hereunder or under such A Note in
respect of such A Loans).
(b) The B Loans made by each Bank shall be evidenced by a
single promissory note of the Borrower (a "B Note" and, collectively, the "B
Notes") in substantially the form of Exhibit A-2 hereto, dated the Effective
Date, payable to the order of such Bank in a principal amount equal to such
Bank's B Commitment as originally in effect and otherwise duly completed. All
B Loans made by each Bank hereunder and all payments and prepayments made on
account of the principal thereof, and all conversions of such B Loans shall be
recorded by such Bank on the schedule attached to the relevant B Note
(provided that any failure by such Bank to make any such endorsement shall not
affect the obligations of the Borrower hereunder or under such B Note in
respect of such B Loans).
(c) The Swing Line Loans made by the Swing Line Lender
shall be evidenced by a single promissory note of the Borrower (the "Swing
Line Note") substantially in the form of Exhibit A-3 hereto, dated the
Effective Date, payable to the order of the Swing Line Lender in a principal
amount equal to the Swing Line Loan Commitment and otherwise duly completed.
All Swing Line Loans made by the Swing Line Lender hereunder and all payments
and prepayments on account of the principal thereof shall be recorded by the
Swing Line Lender on the schedule attached to the Swing Line Note (provided,
that any failure by the Swing Line Lender to make such endorsement shall not
affect the obligations of the Borrower hereunder or under the Swing Line
Note).
Section 2.14 Payments.
All payments of principal, interest, fees and other charges
(including indemnities) payable by the Borrower hereunder shall be made in
Dollars, in immediately available funds, to the Agent at the Principal Office
not later than 12:00 Noon, New York City time, on the date on which such
payment shall become due (and the Agent or any Bank for whose account any such
payment is to be made may, but shall not be obligated to, debit the amount of
any such payment which is not made by such time to any ordinary deposit
account of the Borrower with the Agent or such Bank, as the case may be).
Additional provisions relating to payments are set forth in Section 10.3
hereof. Each payment received by the Agent hereunder for the account of a
Bank or the Swing Line Lender shall be paid promptly to such Bank or Swing
Line Lender, in like funds, for the account of such Bank's or Swing Line
Lender's Applicable Lending Office for the Loan or Swing Line Loan in respect
of which such payment is made.
Section 2.15 Pro Rata Treatment.
Except as otherwise provided herein: (i) each borrowing
from the Banks under Section 2.1 hereof (other than the Swing Line Loan) will
be made from the Banks and each payment of each fee shall be made for the
account of the Banks, pro rata according to their respective Unused
Commitments; (ii) each partial reduction of the aggregate Total Commitment
shall be applied to the Total Commitment of each Bank, pro rata according to
each Bank's respective Total Commitment, (iii) each conversion of Loans of a
particular type under Section 2.8 hereof (other than conversions provided for
by Section 2.21 or 2.22 hereof) will be made pro rata among the Banks holding
Loans of such type according to the respective principal amounts of such Loans
held by such Banks; (iv) each payment and prepayment of principal of or
interest on Loans of a particular type will be made to the Agent for the
account of the Banks holding Loans of such type pro rata in accordance with
the respective unpaid principal amounts of such Loans held by such Banks; and
(v) Interest Periods for Loans of a particular type shall be allocated among
the Banks holding Loans of such type pro rata according to the respective
principal amounts of such Loans held by such Banks.
Section 2.16 Computations.
Interest on all Loans and the Commitment Fee shall be
computed on the basis of a year of 360 days and actual days elapsed (including
the first day but excluding the last) occurring in the period for which pay-
able.
Section 2.17 Minimum Amounts of Borrowings,
Conversions, Prepayments and
Interest Periods.
(a) Except for borrowings, conversions and prepayments
which exhaust the full remaining amount of the Total Commitments (in the case
of borrowings) or result in the conversion or prepayment of all Loans of a
particular type (in the case of conversions or prepayments) or conversions
made pursuant to Section 2.23 hereof, each borrowing, each conversion of Loans
of one type into Loans of another type and each prepayment of principal of
Loans hereunder shall be in an amount at least equal to Two Million
($2,000,000) Dollars or a multiple of $1,000,000 (borrowings, conversions and
prepayment of different types of Loans at the same time hereunder to be deemed
separate borrowings, conversions and prepayments for purposes of the
foregoing, one for each type).
(b) Except for borrowings which exhaust the Swing Line
Loan Commitment, each borrowing of principal of the Swing Line Loans hereunder
shall be in an amount at least equal to Two Million ($2,000,000) Dollars or a
multiple of $1,000,000.
Section 2.18 Non-Receipt of Funds by the Agent.
Unless the Agent shall have been notified by a Bank or the
Borrower (the "Payor") prior to the time upon which such Bank is to make
payment to the Agent of the proceeds of a Loan (including a Refunded Swing
Line Loan) to be made by it hereunder or the Borrower is to make a payment to
the Agent for the account of one or more of the Banks, as the case may be
(such payment being herein called the "Required Payment"), which notice shall
be effective upon receipt, that the Payor does not intend to make the Required
Payment to the Agent, the Agent may assume that the Required Payment has been
made and may, in reliance upon such assumption (but shall not be required to),
make the amount thereof available to the intended recipient on such date and,
if the Payor has not in fact made the Required Payment to the Agent, the
recipient of such payment shall, on demand, repay to the Agent the amount made
available to it together with interest thereon in respect of each day during
the period commencing on the date such amount was so made available by the
Agent until the date the Agent recovers such amount at a rate per annum equal
to the Federal Funds Rate for such day (when the recipient is a Bank) or equal
to the rate of interest applicable to such Loan (when the recipient is the
Borrower).
Section 2.19 Sharing of Payments, Etc.
The Borrower hereby agrees that, in addition to (and without
limitation of) any right of set-off, banker's lien or counterclaim a Bank may
otherwise have, each Bank shall be entitled, at its option, to offset balances
held by it at any of its offices against any principal of or interest on any
of its Loans hereunder, or any fee payable to it, which is not paid when due
(regardless of whether such balances are then due to the Borrower), in which
case it shall promptly notify the Borrower and the Agent thereof, provided
that its failure to give such notice shall not affect the validity thereof.
If a Bank shall effect payment of any principal of or interest on Loans held
by it under this Agreement through the exercise of any right of set-off,
banker's lien, counterclaim or similar right, it shall promptly purchase from
the other Banks participations in the Loans held by the other Banks in such
amounts, and make such other adjustments from time to time as shall be
equitable, to the end that all the Banks shall share the benefit of such
payment pro rata in accordance with the unpaid principal and interest on the
Loans held by each of them. To such end all the Banks shall make appropriate
adjustments among themselves (by the resale of participations sold or other-
wise) if such payment is rescinded or must otherwise be restored. The
Borrower agrees that any Bank so purchasing a participation in the Loans held
by the other Banks may exercise all rights of set-off, banker's lien,
counterclaim or similar rights with respect to such participation as fully as
if such Bank were a direct holder of Loans in the amount of such par-
ticipation. Nothing contained herein shall require any Bank to exercise any
such right or shall affect the right of any Bank to exercise and retain the
benefits of exercising, any such right with respect to any other indebtedness
or obligation of the Borrower.
Section 2.20 Additional Costs.
(a) (i) The Borrower shall pay directly to each Bank
from time to time such amounts as such Bank may determine to be necessary to
compensate it for any costs incurred by such Bank which such Bank determines
are attributable to its making or maintaining any LIBOR Loans or its Total
Commitment hereunder or any reduction in any amount receivable by such Bank
hereunder in respect of any of such Loans or Total Commitments (such increases
in costs and reductions in amounts receivable being herein called "Additional
Costs"), resulting from any Regulatory Change which: (i) changes the basis of
taxation of any amounts payable to such Bank under this Agreement or its Note
in respect of any of such Loans (other than taxes imposed on the overall net
income of such Bank or its Applicable Lending Office for any of such Loans by
the jurisdiction in which such Bank has its principal office or such
Applicable Lending Office); or (ii) imposes or modifies any reserve, special
deposit or similar requirements relating to or any deposits with or other
liabilities of, such Bank (including any deposits referred to in the
definition of "LIBOR Base Rate" in Article 1 hereof); or (iii) imposes any
other conditions affecting this Agreement in respect of the LIBOR Loans. Each
Bank will notify the Borrower and the Agent of any event occurring after the
date of this Agreement which will entitle such Bank to compensation pursuant
to this Section 2.20 as promptly as practicable after it obtains knowledge
thereof and determines to request such compensation. Each Bank will furnish
the Borrower and the Agent with a certificate setting forth the basis and
amount of each request for such Bank for compensation from the Borrower under
this Section 2.20. The Borrower may, by notice to such Bank (with a copy to
the Agent), require that such Bank's Loans of the type with respect to which
such compensation is requested be converted into Prime Rate Loans or LIBOR
Loans, as the case may be, in accordance with Sections 2.8 and 2.23 hereof.
(ii) Without limiting the effect of the foregoing
provisions of this Section 2.20, in the event that, by reason of any
Regulatory Change, any Bank either (i) incurs Additional Costs based on or
measured by the excess above a specified level of the amount of a category of
deposits or other liabilities of such Bank which includes deposits by
reference to which the interest rate on LIBOR Loans is determined as provided
in this Agreement or a category of extensions of credit or other assets of
such Bank which includes LIBOR Loans or (ii) becomes subject to restrictions
on the amount of such a category of liabilities or assets which it may hold,
then, if such Bank so elects by notice to the Borrower (with a copy to the
Agent), the obligation of such Bank to make, and to convert Loans of any other
type into, Loans of such type hereunder shall be suspended until the date such
Regulatory Change ceases to be in effect (and all Loans of such type of such
Bank then outstanding shall be converted into Prime Rate Loans or LIBOR Loans,
as the case may be, in accordance with Section 2.8 and 2.23 hereof).
(b) If any existing or future law or regulation or the
interpretation thereof by any court or administrative or governmental
authority charged with the administration thereof, or compliance by any Bank
with any request or directive (whether or not having the force of law) of any
such authority, either imposes, modifies, deems applicable or results in the
application of, any capital maintenance, capital ratio or similar requirement
against loan commitments made by any Bank and the result thereof is to impose
upon such Bank or increase any capital requirement applicable as a result of
the making or maintenance of such Bank's Total Commitment (which imposition of
or increase in capital requirements may be determined by the Bank's reasonable
allocation of the aggregate of such capital impositions or increases) then,
upon demand by such Bank (a copy of which demand shall be delivered to the
Agent), the Borrower shall immediately pay to the Bank from time to time
specified by the Bank, such additional fees as shall be sufficient to
compensate the Bank for such imposition of or increase in capital require-
ments. Such Bank will furnish the Borrower and the Agent with a certificate
setting forth the basis and amount of each request by such Bank for
compensation from the Borrower under this Section 2.20. The Borrower may, by
notice to such Bank (with a copy to the Agent), require that such Bank's Loans
of the type with respect to which such compensation is requested be converted
into Prime Rate Loans or LIBOR Loans, as the case may be, in accordance with
Section 2.8 and 2.23 hereof.
(c) Determinations by any Bank for purposes of this
Section 2.20 of the effect of any Regulatory Change on its costs of making or
maintaining Loans or on amounts receivable by it in respect of Loans, and of
the additional amounts required to compensate such Bank in respect of any
Additional Costs, shall be conclusive, absent manifest error.
Section 2.21 Limitation on Types of Loans.
Anything herein to the contrary notwithstanding, if, on or
prior to the determination of an interest rate for any LIBOR Loans for any
Interest Period therefor:
(a) the Majority Banks determine (which determination
shall be conclusive absent manifest error) that, by reason of any event
affecting the money markets in the United States or the London interbank
market, quotations of interest rates for the relevant deposits are not being
provided in the relevant amounts or for the relevant maturities for purposes
of determining the rate of interest for such Loans under this Agreement, or
(b) the Majority Banks determine (which determination
shall be conclusive absent manifest error) that the rates of interest referred
to in the definition of "LIBOR Base Rate" in Article 1 hereof upon the basis
of which the rate of interest on any LIBOR Loans for such period is determined
do not accurately reflect the cost to the Banks of making or maintaining such
Loans for such period;
then the Agent shall give the Borrower and each Bank prompt notice thereof
(and shall thereafter give the Borrower and each Bank prompt notice of the
cessation, if any, of such condition), and so long as such condition remains
in effect, the Banks shall be under no obligation to make Loans of such type
or to convert Loans of any other type into Loans of such type and the Borrower
shall, on the last day(s) of the then current Interest Period(s) for the
outstanding Loans of the affected type either prepay such Loans in accordance
with Section 2.9 hereof or convert such Loans into Loans of another type in
accordance with Section 2.8 hereof.
Section 2.22 Illegality.
Notwithstanding any other provision in this Agreement, in
the event that it becomes unlawful for any Bank or its Applicable Lending
Office to (i) honor its obligation to make LIBOR Loans hereunder, or (ii)
maintain LIBOR Loans hereunder, then such Bank shall promptly notify the
Borrower thereof in writing (with a copy to the Agent), describing such
illegality in reasonable detail (and shall thereafter promptly notify the
Borrower and the Agent of the cessation, if any, of such illegality), and such
Bank's obligation to make LIBOR Loans and to convert Prime Rate Loans into
LIBOR Loans hereunder shall, upon written notice given by such Bank to the
Borrower, be suspended until such time as such Bank may again make and main-
tain LIBOR Loans and such Bank's outstanding LIBOR Loans shall be converted
into Prime Rate Loans in accordance with Sections 2.8 and 2.23 hereof.
Section 2.23 Certain Conversions
Pursuant to Section 2.20.
If the Loans of any Bank of a particular type (Loans of such
type being herein called "Affected Loans" and such type being herein called
the "Affected Type") are to be converted pursuant to Section 2.20 hereof, such
Bank's Affected Loans shall be converted into Prime Rate Loans or LIBOR Loans
of another type (the "New Type Loans") on the last day(s) of the then current
Interest Period(s) for the Affected Loans (or, in the case of a conversion
required by Section 2.20(b) on such earlier date as such Bank may specify to
the Borrower with a copy to the Agent) and, until such Bank gives notice as
provided below that the circumstances specified in Section 2.20 hereof which
gave rise to such conversion no longer exist:
(a) to the extent that such Bank's Affected Loans
have been so converted, all payments and prepayments of principal which would
otherwise be applied to such Affected Loans shall be applied instead to its
New Type Loans;
(b) all Loans which would otherwise be made by such
Bank as Loans of the Affected Type shall be made instead as New Type Loans and
all Loans of such Bank which would otherwise be converted into Loans of the
Affected Type shall be converted instead into (or shall remain as) New Type
Loans; and
(c) if Loans of the Affected Type are subsequently
converted into Loans of another type (other than New Type Loans), such Bank's
New Type Loans shall be automatically converted on the conversion date into
Loans of such other type to the extent necessary so that, after giving effect
thereto, all Loans held by such Bank and the Banks whose Loans are so convert-
ed are held pro rata (as to principal amounts, types and, to the extent
applicable, Interest Periods) in accordance with their respective Total
Commitments.
Section 2.24 Indemnification.
The Borrower shall pay to the Agent for the account of each
Bank, upon the request of such Bank through the Agent, such amount or amounts
as shall compensate such Bank for any loss (including loss of profit), cost or
expense incurred by such Bank (as reasonably determined by such Bank) as a
result of:
(a) any payment or prepayment or conversion of a LIBOR
Loan held by such Bank on a date other than the last day of an Interest Period
for such LIBOR Loan; or
(b) any failure by the Borrower to borrow a LIBOR Loan
held by such Bank on the date for such borrowing specified in the relevant
Borrowing Notice under Section 2.3 hereof;
such compensation to include, without limitation, an amount equal to the
excess, if any, of (a) the amount of interest which would have accrued on the
amount so paid, prepaid or converted or not borrowed for the period from the
date of such payment, prepayment or conversion or failure to borrow, convert
or prepay to the last day of the then current Interest Period for such LIBOR
Loan (or, in the case of a failure to borrow, the Interest Period for such
LIBOR Loan which would have commenced on the date of such failure to borrow)
at the applicable rate of interest for such LIBOR Loan provided for herein
over (b) the amount of interest (as reasona-bly determined by such Bank) such
Bank would have bid in the London interbank market for Dollar deposits of
amounts comparable to such principal amount and maturities comparable to such
period.
Section 2.25 Termination of A Commitment
under Certain Circumstances.
(a) Any Bank may terminate its A Commitment hereunder by
giving written notice of such termination to the Borrower, the Agent and each
other Bank not less than 364 days prior to the effective date of such
termination. Once given, such notice shall be irrevocable. On the effective
date of any such termination, the Borrower may either pay to the terminating
Bank (the "Terminating Bank") all amounts due and owing to the Terminating
Bank under this Agreement including all amounts due pursuant to Section 2.24
in connection with the prepayment of A Loans, or find a Bank or other
financial institution acceptable to the Banks which would be willing to assume
the Terminating Bank's A Commitment. Such Bank (the "Assuming Bank") shall
execute and deliver to the Agent, an appropriately completed assumption
agreement or other written instrument consented to by the Borrower and the
Agent at least 20 Business Days prior to the date such assumption is to be
effective providing for, among other things, the purchase by the Assuming Bank
of the Terminating Bank's outstanding A Loans at a purchase price equal to the
unpaid principal amount of such A Loans plus accrued and unpaid interest
thereon to the date of assumption. In addition, on the date of assumption,
the Borrower will pay to the Terminating Bank all amounts payable to the
Terminating Bank pursuant to Section 2.24 in connection with the prepayment of
any A Loans. Notwithstanding any provision in this Agreement to the contrary,
no Bank may terminate its A Commitment pursuant to this subsection 2.25(a)
without the consent of the Majority Banks if on the effective date of any
termination provided hereby, a Default shall then have occurred and be
continuing.
(b) So long as no Default shall have occurred and be
continuing on the effective date of the termination provided under this
subsection 2.25(b), the Borrower may terminate the
A Commitment hereunder by giving written notice of such termination to the
Agent and each of the Banks not less than 364 days prior to the effective date
of such termination. Once given, such notice shall be irrevocable. On the
effective date of such termination, the Borrower shall pay to the Agent and to
each Bank all amounts due and owing under this Agreement including amounts due
under Section 2.24 in connection with the prepayment of Loans.
(c) The Borrower and each Bank shall execute and deliver
such further instruments as may be reasonably requested by the Agent to carry
out the purpose of this Section 2.25.<PAGE>
Article 3. Representations and
Warranties.
The Borrower hereby represents and warrants to the Banks and the
Agent that:
Section 3.1 Organization.
(a) Each of the Borrower and its Subsidiaries is duly
organized and validly existing under the laws of its jurisdiction of
organization and has the power to own its assets and to transact the business
in which it is presently engaged and in which it proposes to be engaged.
Schedule 3.1 annexed hereto accurately and completely lists the jurisdiction
of incorporation of the Borrower and its Subsidiaries, and the authorized and
outstanding shares of common stock of the Borrower and its Subsidiaries. All
of the shares which are issued and outstanding have been duly and validly
issued and are fully paid and non-assessable. Except as set forth on Schedule
3.1, there are not outstanding any warrants, options, contracts or commitments
of any kind entitling any Person to purchase or otherwise acquire any shares
of capital stock of the Borrower or its Subsidiaries nor are there outstanding
any securities which are convertible into or exchangeable for any shares of
capital stock of the Borrower or any of its Subsidiaries. Except as set forth
on Schedule 3.1, neither the Borrower nor any of its Subsidiaries has any
Subsidiary.
(b) There are no jurisdictions other than as set forth on
Schedule 3.1 hereto in which the character of the properties owned or proposed
to be owned by the Borrower or any of its Subsidiaries or in which the
transaction of the business of the Borrower or any of its Subsidiaries as now
conducted or as proposed to be conducted requires or will require the Borrower
or any of its Subsidiaries to qualify to do business and as to which failure
so to qualify could have a material adverse effect on the business,
operations, financial condition or properties of the Borrower and its
Subsidiaries, taken as a whole.
Section 3.2 Power, Authority, Consents.
(i) The Borrower has the power to execute, deliver and
perform the Loan Documents to be executed by it, (ii) the Borrower has the
power to borrow hereunder and has taken all necessary action to authorize the
borrowing hereunder on the terms and conditions of this Agreement, and
(iii) the Borrower has taken all necessary action, corporate or otherwise, to
authorize the execution, delivery and performance of the Loan Documents to be
executed by it. No consent or approval of any Person (including, without
limitation, any stockholder of the Borrower), no consent or approval of any
landlord or mortgagee, no waiver of any Lien or right of distraint or other
similar right and no consent, license, approval, authorization or declaration
of any governmental authority, bureau or agency, is or will be required in
connection with the execution, delivery or performance by the Borrower, or the
validity or enforcement of the Loan Documents, except as set forth on Schedule
3.2 annexed hereto, each of which either has been duly and validly obtained on
or prior to the date hereof and is now in full force and effect, or is
designated on Schedule 3.2 as waived by the Majority Banks.
Section 3.3 No Violation of Law or Agreements.
The execution and delivery by the Borrower of each Loan
Document and performance by it hereunder and thereunder, will not violate any
provision of law and will not, except as set forth on Schedule 3.2 annexed
hereto, conflict with or result in a breach of any order, writ, injunction,
ordinance, resolution, decree, or other similar document or instrument of any
court or governmental authority, bureau or agency, domestic or foreign, or any
charter or by-laws of the Borrower or create (with or without the giving of
notice or lapse of time, or both) a default under or breach of any agreement,
bond, note or indenture to which the Borrower is a party, or by which the
Borrower is bound or any of its properties or assets is affected, or result in
the imposition of any Lien of any nature whatsoever upon any of the properties
or assets owned by or used in connection with the business of the Borrower.
Section 3.4 Due Execution, Validity,
Enforceability.
This Agreement and each other Loan Document has been duly
executed and delivered by the Borrower and each constitutes the valid and
legally binding obligation of the Borrower, enforceable in accordance with its
terms, except as such enforcement may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, or other similar laws, now or
hereafter in effect, relating to or affecting the enforcement of creditors'
rights generally and except that the remedy of specific performance and other
equitable remedies are subject to judicial discretion.
Section 3.5 Properties.
All of the properties and assets owned by the Borrower or
any of its Subsidiaries are owned by each of them, respectively, free and
clear of any Lien of any nature whatso-ever, except Permitted Liens and as
permitted by Schedule 3.5 annexed hereto.
Section 3.6 Judgments, Actions, Proceedings.
Except as set forth on Schedule 3.6 annexed hereto, there
are no outstanding judgments, actions or proceedings pending before any court
or governmental authority, bureau or agency, with respect to the Borrower or
any of its Subsidiaries or, to the best of the Borrower's knowledge,
threatened against or affecting the Borrower or any of its Subsidiaries,
involving, in the case of any court proceeding, a claim in excess of $250,000,
nor, to the best of the Borrower's knowledge is there any reasonable basis for
the institution of any such action or proceeding which is probable of
assertion, nor are there any such actions or proceedings in which the Borrower
or any of its Subsidiaries is a plaintiff or complainant.
Section 3.7 No Defaults, Compliance With Laws.
Except as set forth on Schedule 3.7 annexed hereto, neither
the Borrower nor any of its Subsidiaries is in material default under any
agreement, ordinance, resolution, decree, bond, note, indenture, order or
judgment to which it is a party or by which it is bound, or any other agree-
ment or other instrument by which any of the properties or assets owned by it
or used in the conduct of its business is affected, and each of the Borrower
and its Subsidiaries has complied and is in compliance in all material re-
spects with all applicable laws, ordinances and regulations non-compliance
with which could have a material adverse effect on the business, operations,
financial condition or properties of the Borrower or any of its Subsidiaries
or on the ability of the Borrower or any of its Subsidiaries to perform their
respective obligations under the Loan Documents.
Section 3.8 Burdensome Documents.
Except as set forth on Schedule 3.8 annexed hereto, neither
the Borrower nor its Subsidiaries is a party to or bound by, nor are any of
its properties or assets affected by, any agreement, ordinance, resolution,
decree, bond, note, indenture, order or judgment which materially and
adversely affects its business, assets or condition, financial or otherwise.
Section 3.9 Financial Statements.
Each of the Financial Statements is correct and complete and
presents fairly the consolidated and consolidating financial position of the
Borrower and its Subsidiaries, as the case may be, as at its date, and has
been prepared in accordance with GAAP. As of the Effective Date, (a) neither
the Borrower nor any of its Subsidiaries has any material obligation,
liability or commitment, direct or contingent, which is not reflected in the
Financial Statements, and (b) there has been no material adverse change in the
financial position or operations of the Borrower or any of its Subsidiaries
since the date of the latest balance sheet included in the Financial
Statements (the "Latest Balance Sheet"). The fiscal year of the Borrower is
the twelve-month period ending on December 31 in each year.
Section 3.10 Tax Returns.
The Borrower and each of its Subsidiaries has filed all
federal, state and local tax returns required to be filed by it and has not
failed to pay any taxes, or interest and penalties relating thereto, on or
before the due dates thereof. Except to the extent that reserves therefor are
reflected in the Financial Statements, (a) there are no material federal,
state or local tax liabilities of the Borrower and its Subsidiaries due or to
become due for any tax year ended on or prior to the date of the Latest
Balance Sheet relating to such entity, whether incurred in respect of or
measured by the income of such entity, which are not properly reflected in the
Latest Balance Sheet, and (b) there are no material claims pending or, to the
knowledge of the Borrower, proposed or threatened against the Borrower or any
of its Subsidiaries for past federal, state or local taxes, except those, if
any, as to which proper reserves are reflected in the Financial Statements.
Section 3.11 Intangible Assets.
The Borrower and each of its Subsidiaries possess all
necessary patents, trademarks, trademark rights, trade names, trade name
rights and copyrights to conduct its business as now conducted and as proposed
to be conducted, without any conflict with the patents, trademarks rights,
trade names, trade name rights and copyrights of others.
Section 3.12 Regulation U.
No part of the proceeds received by the Borrower from the
Loans or the Swing Line Loans will be used directly or indirectly for the
purpose of purchasing or carrying, or for payment in full or in part of
Indebtedness which was incurred for the purposes of purchasing or carrying,
any margin stock as such term is defined in section 221.3 of Regulation U
of the Board of Governors of the Federal Reserve System, 12 C.F.R.,
Chapter II, Part 221.
Section 3.13 Name Changes.
Except as set forth on Schedule 3.13 annexed hereto, neither
the Borrower nor any of its Subsidiaries has within the six-year period
immediately preceding the date of this Agreement changed its name, been the
surviving entity of a merger or consolidation, or acquired all or substan-
tially all of the assets of any Person.
Section 3.14 Full Disclosure.
None of the Financial Statements, nor any certificate,
opinion, or any other statement made or furnished in writing to the Agent or
any Bank by or on behalf of the Borrower or any of its Subsidiaries in connec-
tion with this Agreement or the transactions contemplated herein, contains any
untrue statement of a material fact, or omits to state a material fact
necessary in order to make the statements contained therein or herein not
misleading, as of the date such statement was made. There is no fact known to
the Borrower which has, or would in the now foreseeable future have, a
material adverse effect on the business, prospects or condition, financial or
otherwise, of the Borrower or of any of its Subsidiaries, which fact has not
been set forth herein, in the Financial Statements, or any certificate,
opinion, or other written statement so made or furnished to the Agent or the
Banks.
Section 3.15 Employee Grievances.
Except as set forth on Schedule 3.15 annexed hereto, there
are no actions or proceedings pending or, to the best of the knowledge of the
Borrower, threatened against the Borrower or any of its Subsidiaries by or on
behalf of, or with, its employees, other than employee grievances arising in
the ordinary course of business which are not, in the aggregate, material.
Section 3.16 Condition of Assets.
All of the assets and properties of the Borrower and its
Subsidiaries, which are reasonably necessary for the operation of its
business, are in good working condition, ordinary wear and tear excepted, and
are able to serve the function for which they are currently being used.
Section 3.17 ERISA.
(a) Except as set forth on Schedule 3.17 annexed hereto,
neither the Borrower nor any of its Subsidiaries have and has ever had, any
Plan in connection with which there could arise a direct or contingent
liability of the Borrower or any of its Subsidiaries to the Pension Benefit
Guaranty Corporation ("PBGC"), the Department of Labor or the Internal Revenue
Service ("IRS"). Neither the Borrower nor any of its Subsidiaries is a par-
ticipating employer (i) in any Plan under which more than one employer makes
contributions as described in Sections 4063 and 4064 of ERISA, or (ii) in a
multiemployer plan as defined in Section 4001(a)(3) of ERISA.
(b) All references to the Borrower or its Subsidiaries in
this Section 3.17 or in any other Section of this Agreement relating to ERISA,
shall be deemed to refer to the Borrower and its Subsidiaries and all other
entities which are, together with the Borrower, part of a Controlled Group.
<PAGE>
Article 4. Conditions to the Closing
and to the Making of the Loans.
Section 4.1 Conditions to the Closing.
This Agreement, and the amendment and restatement of the
Original Loan Agreement pursuant hereto, shall become effective on the
Effective Date, provided that each of the following conditions precedent shall
have been fulfilled to the satisfaction of each of the Banks on or prior to
the Effective Date:
(a) The Borrower shall have executed and delivered
to each Bank a copy of this Agreement.
(b) (i) The Borrower shall have executed and delivered
to each Bank its A Note and B Note.
(ii) The Borrower shall have executed and delivered
to the Swing Line Lender the Swing Line Note.
(c) Messrs. Shea and Gardner, general counsel to the
Borrower, shall have delivered its opinion, to, and in form and substance
satisfactory to, the Agent and its counsel.
(d) The Agent shall have received a Borrowing Notice in
accordance with Section 2.3 hereof.
(e) The Agent shall have received copies of the following:
(i) The Financial Statements;
(ii) All of the consents, approvals and waivers
referred to on Schedule 3.2 annexed hereto, except only those which, as stated
on Schedule 3.2, shall not be delivered;
(iii) The by-laws of the Borrower, certified by its
Secretary or an Assistant Secretary;
(iv) Copies of all corporate action taken by the
Borrower to authorize the execution, delivery and performance of each of the
Loan Documents; and
(v) An incumbency certificate with respect to the
Borrower.
(f) (i) The Borrower and each of its Subsidi-aries shall
have complied and shall then be in compliance with all of the terms, covenants
and conditions of this Agreement applicable to them;
(ii) There shall exist no Event of Default or Default
hereunder; and
(iii) The representations and warranties contained in
Article 3 hereof shall be true and correct on the Effective Date;
and the Agent shall have received a Compliance Certificate dated the Effective
Date certifying, inter alia, that the conditions set forth in this Subsection
4.1(f) are satisfied on such date.
(g) All legal matters incident to the closing of the
transactions contemplated by this Agreement shall be satisfactory to counsel
to the Agent.
Section 4.2 Conditions to Subsequent Loans
and Swing Line Loans.
The obligation of each Bank to make each Loan and the
obligation of the Swing Line Lender to make any Swing Line Loan(s), shall be
subject to the fulfillment (to the satisfaction of the Agent or the Swing Line
Lender, as the case may be) of the following conditions precedent:
(a) The Effective Date shall have occurred and all of the
conditions set forth in Section 4.1 shall have been satisfied on or before
such date.
(b) The Agent shall have received a Borrowing Notice in
accordance with Section 2.3 hereof.
(c) On the date of each Loan or the Swing Line Loan, as
the case may be, all of the conditions set forth in subsection 4.1(f) shall
have been satisfied on such date and the Agent shall have received a Compli-
ance Certificate dated the date thereof certifying, inter alia, that the
conditions set forth in subsection 4.1(f) are satisfied on such date.
(d) All legal matters incident to such Loan or the Swing
Line Loan shall be satisfactory to counsel for the Agent.
Section 4.3 Return of Superseded Notes.
Upon receipt of its Notes hereunder and occurrence of the
Effective Date, each Bank holding a promissory note(s) issued by the Borrower
pursuant to the Original Loan Agreement shall mark such promissory note(s)
"superseded" and return them to the Borrower.
<PAGE>
Article 5. Delivery of Financial Reports,
Documents and Other Information.
While the Total Commitments are outstanding, and, in the event any
Loan or Swing Line Loan remains outstanding, so long as the Borrower is
indebted to the Banks, the Swing Line Lender or the Agent and until payment in
full of the Notes and full and complete performance of all of its other
obligations arising hereunder, the Borrower shall deliver to each Bank:
Section 5.1 Annual Financial Statements.
Annually, as soon as available, but in any event within 90
days after the last day of each of its fiscal years, consolidated and
consolidating statements of financial condition, income and cash flows, a
reconciliation of net income and net cash provided by operating activities and
consolidated statements of changes in members' equity of the Borrower and its
Subsidiaries, and a consolidated balance sheet of the Borrower as at such last
day of the fiscal year, and the related consolidated statements of income and
retained earnings and cash flows of the Borrower, for such fiscal year, each
prepared in accordance with GAAP consistently applied, in reasonable detail,
and, as to the consolidated statements of the Borrower and its Subsidiaries
and the statements of the Borrower, certified without qualification by
independent certified public accountants satisfactory to the Agent, or
certified, as to the consolidating statements, by the chief financial officer
of the Borrower, as fairly presenting the financial positions and the results
of operations of the Borrower and its Subsidiaries, as at and for the year
ending on its date and as having been prepared in accordance with GAAP.
Section 5.2 Quarterly Financial Statements.
As soon as available, but in any event within 45 days after
the end of the Borrower's first three fiscal quarterly periods, consolidated
and consolidating statements of financial condition, income and cash flows, a
reconciliation of net income and net cash provided by operating activities and
consolidated statements of changes in members' equity of the Borrower and its
Subsidiaries and a consolidated balance sheet of the Borrower as of the last
day of such quarter, and statements of income and retained earnings and cash
flows for the Borrower, for such quarter, and comparative figures for the
corresponding period of the immediately preceding fiscal year, all in
reasonable detail, each such statement to be certified in a certificate of the
president or chief financial officer of the Borrower as fairly presenting the
financial position and the results of operations of the Borrower and its
Subsidiaries as at its date and for such quarter and as having been prepared
in accordance with GAAP (subject to year-end audit adjustments).
Section 5.3 Other Information.
Promptly after a written request therefor, such other
financial data or information evidencing compliance with the requirements of
this Agreement, as any Bank may reasonably request from time to time.
Section 5.4 No Default Certificate.
At the same time as it delivers the financial statements
required under the provisions of Section 5.1 and 5.2, a certificate of the
president or chief executive officer or chief financial officer of the
Borrower to the effect that no Event of Default hereunder and that no default
under any other agreement to which the Borrower or any of its Subsidiaries is
a party or by which it is bound, or by which, to the best of the knowledge of
the Borrower and any of its Subsidiaries, any of its properties or assets,
taken as a whole, may be materially affected, and no event which, with the
giving of notice or the lapse of time, or both, would constitute such an Event
of Default or default, exists, or, if such cannot be so certified, specifying
in reasonable detail the exceptions, if any, to such statement. Such certifi-
cate shall be accompanied by a detailed calculation indicating compliance with
the covenants contained in Section 6.9 hereof.
Section 5.5 Certificate of Accountants.
At the same time as it delivers the financial statements
required under the provisions of Section 5.1, a certificate of the
independent certified public accountants of the Borrower and its Subsidiaries,
specifically addressed to the Borrower and its Subsidiaries and to each of the
Banks, to the effect that during the course of their audit of the operations
of the Borrower and its Subsidiaries and its condition as of the end of the
fiscal year, nothing has come to their attention which would indicate that an
Event of Default or Default hereunder has occurred or that there was any
violation of the covenants of the Borrower or any of its Subsidiaries
contained in Section 6.9 or Article 7 of this Agreement, or, if such cannot be
so certified, specifying in reasonable detail the exceptions, if any, to such
statement.
Section 5.6 Copies of Documents.
Promptly upon their becoming available, copies of any (a)
financial statements, projections, non-routine reports, notices (other than
routine correspondence), requests for waivers and proxy statements, in each
case, delivered by the Borrower to any lending institution other than the
Banks; (b) correspondence or notices received by the Borrower from any
federal, state or local governmental authority which regulates the operations
of the Borrower, relating to an actual or threatened change or development
which would be materially adverse to the Borrower; (c) registration statements
and any amendments and supplements thereto, and any regular and periodic
reports, if any, filed by the Borrower with any securities exchange or with
the Securities and Exchange Commission or any governmental authority
succeeding to any or all of the functions of the said Commission; and (d)
letters of comment or correspondence sent to the Borrower by any such
securities exchange or such Commission in relation to the Borrower and its
affairs.
Section 5.7 Notices of Defaults.
(a) Promptly, notice of the occurrence of any event which
constitutes, or with notice to it or lapse of time, or both, would
constitute, an Event of Default hereunder, or would constitute or cause a
material adverse change in the condition, financial or otherwise, or the
operations of the Borrower.
(b) Promptly, notice of the occurrence of any event which
constitutes or with notice or lapse of time, or both would constitute, an
event of default by the Borrower under any material agreement of the Borrower,
or would constitute or cause a material adverse change in the condition,
financial or otherwise, or the operation of the Borrower.
Section 5.8 ERISA Notices.
(a) Concurrently with such filing, a copy of each Form
5500 which is filed with respect to each Plan with the IRS; and
(b) Promptly, upon their becoming available, copies of:
(i) all correspondence with the PBGC, the Secretary of Labor or any
representative of the IRS with respect to any Plan, relating to an actual or
threatened change or development which would be materially adverse to the
Borrower; (ii) copies of all actuarial valuations received by the Borrower
with respect to any Plan; and (iii) copies of any notices of Plan termination
filed by any Plan Administrator (as those terms are used in ERISA) with the
PBGC and of any notices from PBGC to the Borrower with respect to the intent
of the PBGC to institute involuntary termination proceedings.
<PAGE>
Article 6. Affirmative Covenants.
While the Total Commitments are outstanding, and, in the event any
Loan (or Swing Line Loan) remains outstanding, so long as the Borrower is
indebted to the Banks, the Swing Line Lender or the Agent, and until payment
in full of the Notes and full and complete performance of all of its other
obligations arising hereunder, the Borrower shall, and shall cause each of its
Subsidiaries to:
Section 6.1 Books and Records.
Keep proper books of record and account in a manner
reasonably satisfactory to the Agent and the Swing Line Lender in which full,
true and correct entries shall be made of all dealings or transactions in
relation to its business and activities.
Section 6.2 Inspections and Audits.
Permit the Banks to make or cause to be made (and, after the
occurrence of and during the continuance of an Event of Default, at the
Borrower's expense), inspections and audits of any books, records and papers
of the Borrower and to make extracts therefrom and copies thereof, or to make
inspections and examinations of any properties and facilities of the Borrower,
on reasonable notice, at all such reasonable times and as often as any Bank
may reasonably require, in order to assure that the Borrower is and will be in
compliance with its obligations under the Loan Documents.
Section 6.3 Maintenance and Repairs.
Maintain in good repair, working order and condition,
subject to normal wear and tear, all material properties and assets from time
to time owned by it and used in or necessary for the operation of its
business, and make all reasonable repairs, replacements, additions and
improvements thereto.
Section 6.4 Continuance of Business.
Do, or cause to be done, all things reasonably necessary to
preserve and keep in full force and effect its corporate existence and all
permits, rights and privileges necessary for the proper conduct of its
business and continue to engage in the same line of business.
Section 6.5 Copies of Corporate Documents.
Subject to the prohibitions set forth in Section 7.12
hereof, promptly deliver to the Agent copies of any amendments or
modifications to its by-laws, certified by the secretary or assistant
secretary of the corporation.
Section 6.6 Perform Obligations.
Pay and discharge all of its obligations and liabilities,
including, without limitation, all taxes, assessments and governmental charges
upon its income and properties, when due, unless and to the extent only that
such obligations, liabilities, taxes, assessment and governmental charges
shall be contested in good faith and by appropriate proceedings and that, to
the extent required by GAAP then in effect, proper and adequate book reserves
relating thereto are established by the Borrower, and then only to the extent
that a bond is filed in cases where the filing of a bond is necessary to avoid
the creation of a Lien against any of its properties.
Section 6.7 Notice of Litigation.
Promptly notify the Agent in writing of any litigation,
legal proceeding or dispute, other than disputes in the ordinary course of
business or, whether or not in the ordinary course of business, involving
amounts in excess of Two Hundred and Fifty Thousand ($250,000) Dollars,
affecting the Borrower whether or not fully covered by insurance, and regard-
less of the subject matter thereof (excluding, however, any actions relating
to workmen's compensation claims or negligence claims relating to use of motor
vehicles, if fully covered by insurance, subject to deductibles).
Section 6.8 Insurance.
(a) Maintain with responsible insurance companies such
insurance on such of its properties, in such amounts and against such risks as
is customarily maintained by similar businesses; file with the Agent upon its
request a detailed list of the insurance then in effect, stating the names of
the insurance companies, the amounts and rates of the insurance, dates of the
expiration thereof and the properties and risks covered thereby; and, within
ten (10) days after notice in writing from the Agent, obtain such additional
insurance as the Agent may reasonably request; and,
(b) Carry all insurance available through the PBGC or any
private insurance companies covering its obligations to the PBGC.
Section 6.9 Financial Covenants.
Have or maintain:
(a) At all times, Consolidated Effective Net Worth in an
amount not less than the sum of (i) Two Hundred Sixty-Five Million Dollars
($265,000,000) plus (ii) the sum, for all fiscal quarters of the Borrower
ended subsequent to January 1, 1993, of the greater, for each fiscal quarter,
of (A) Zero Dollars ($0) and (B) fifty percent (50%) of Consolidated Net
Earnings for each such fiscal quarter.
(b) At all times, Consolidated Adjusted Net Worth in an
amount not less than the sum of (i) One Hundred Million Dollars ($100,000,000)
plus (ii) the sum, for all fiscal quarters of the Borrower ended subsequent to
January 1, 1993, of the greater, for each fiscal quarter, of (A) Zero Dollars
($0) and (B) fifty percent (50%) of Consolidated Net Earnings for each such
fiscal quarter.
(c) With respect to the Borrower at all times, Investments
of the types described in Section 7.9(i) through (xii) hereof in an aggregate
amount not less than Twenty-Five Million ($25,000,000) Dollars.
(d) With respect to the Borrower for any period of four
(4) consecutive fiscal quarters of the Borrower, Consolidated Earnings
Available for Fixed Charges not less than one hundred ten percent (110%) of
Consolidated Fixed Charges for such period.
(e) With respect to the Borrower, Paid-in-Capital in each
of the following Subsidiaries in an amount not greater than the following
amounts:
Amount of
Subsidiary Paid-in-Capital
NCB Financial Corporation $15,000,000
NCB Mortgage $15,000,000
(f) With respect to the Borrower at all times, Investments
in Subsidiaries (other than as set forth in subsection 6.9(e) above and
excluding SPV's and secured loans to NCB Mortgage) in an aggregate amount
with respect to all such Subsidiaries of not greater than $30,000,000.
(g) At all times, a ratio of Consolidated Debt to
Consolidated Adjusted Net Worth in an amount not greater than 8.5 to 1.0 until
the earlier to occur of:
(i) December 24, 1997, or
(ii) the prepayment in full of the Borrower's Amended
and Restated 8.18% Series A Senior Notes due June 24, 1997, and the Borrower's
Amended and Restated 8.32% Series B Senior Notes due December 24, 1997, after
which time the Borrower shall have and maintain a ratio of Consolidated Debt
to Consoli-dated Adjusted Net Worth in an amount not greater than 10.0 to 1.0.
For purposes of calculating this ratio only, Consolidated Debt shall include
the full balance of mortgage backed securities sold by the Borrower or any of
its Subsidiaries with any first loss recourse provision against the Borrower
or any of its Subsidiaries attached thereto.
For purposes of calculating the ratio set forth in subsection 6.9(g) above and
in subsection 6.9(h) below only, "Consolidated Adjusted Net Worth" shall be
reduced by the amount by which the sum of 75% of (i) 90 day overdue accounts,
(ii) non-performing loans, (iii) real estate owned in substance foreclosure
and other miscellaneous repossessions and, (iv) modified loans, exceed the
reserves for credit losses established by the Borrower and its Subsidiaries.
(h) At all times, a ratio of Consolidated Senior Debt to
Consolidated Adjusted Net Worth in an amount not greater than 6.5 to 1.0.
(i) Qualified Assets of not less than one hundred (100%)
percent of the sum (at any date of determination thereof) of:
(i) NCCB Senior Obligations, plus
(ii) the aggregate unpaid principal amount of
Subordinated Debt (as defined in the Senior Note Agreements as in effect on
the date hereof), less
(iii) the aggregate unpaid principal amount of Class A
Notes.
Section 6.10 Reportable Events.
Promptly notify the Agent in writing of the occurrence of
any Reportable Event, as defined in Section 4043 of ERISA, if a notice of
such Reportable Event is required under ERISA to be delivered to the PBGC
within 30 days after the occurrence thereof, together with a description of
such Reportable Event and a statement of the action the Borrower intends to
take with respect thereto, together with a copy of the notice thereof given to
the PBGC.
Section 6.11 Comply with ERISA.
Comply in all material respects with all applicable
provisions of ERISA now or hereafter in effect.
Section 6.12 Senior Note Agreements.
Comply and remain at all times in compliance with the Senior
Note Agreements.
<PAGE>
Article 7. Negative Covenants.
While the Total Commitments are outstanding, and, in the event any
Loan (or Swing Line Loan) remains outstanding, so long as the Borrower is
indebted to the Banks, the Swing Line Lender or the Agent and until payment in
full of the Notes and full and complete performance of all of its other
obligations arising hereunder, neither the Borrower nor any of its
Subsidiaries shall do, agree to do, or permit to be done, any of the
following:
Section 7.1 Indebtedness.
Subject to subsections 6.9(f), (g) and (h), create, incur,
permit to exist or have outstanding any Indebtedness, except:
(a) Indebtedness to the Banks, the Swing Line Lender and
the Agent under this Agreement and the Notes;
(b) Taxes, assessments and governmental charges, non-interest
bearing accounts payable and accrued liabilities, in any case not
more than 90 days past due from the original due date thereof (e.g., deferred
compensation and deferred taxes) and in each case incurred and continuing in
the ordinary course of business;
(c) Indebtedness under, and as permitted by, the Senior
Note Agreements;
(d) Indebtedness under the Class A Notes; and
(e) Indebtedness as set forth on Schedule 7.1 annexed
hereto.
Section 7.2 Liens.
Create, or assume or permit to exist, any Lien on any of the
properties or assets of the Borrower whether now owned or hereafter acquired,
except:
(a) Permitted Liens;
(b) As set forth on Schedule 3.5 annexed hereto; and
(c) To secure obligations in connection with Eligible
Derivatives; provided, however, in the event the Agent notifies the Borrower
in writing that either (i) the Total Commitments are being terminated pursuant
to the terms and conditions of the Loan Agreement, or (ii) the Banks have
elected not to extend or renew either of their respective A Commitments or B
Commitments upon maturity thereof, then the aggregate amount of obligations in
respect of Eligible Derivatives secured by such Liens shall not exceed the
greater of: (A) $10,000,000, or (B) the aggregate amount of such obligations
outstanding on the date such notification is delivered to the Borrower by the
Agent pursuant to this subsection 7.2(c).
Section 7.3 Guaranties.
Assume, endorse, be or become liable for, or guarantee, the
obligations of any Person, except by the endorsement of negotiable instruments
for deposit or collection in the ordinary course of business. For the
purposes hereof, the term "guarantee" shall include any agreement, whether
such agreement is on a contingency or otherwise, to purchase, repurchase or
otherwise acquire Indebtedness of any other Person, or to purchase, sell or
lease, as lessee or lessor, property or services, in any such case primarily
for the purpose of enabling another person to make payment of Indebtedness, or
to make any payment (whether as an advance, capital contribution, purchase of
an equity interest or otherwise) to assure a minimum equity, asset base,
working capital or other balance sheet or financial condition, in connection
with the Indebtedness of another Person, or to supply funds to or in any
manner invest in another Person in connection with such Person's Indebtedness.
Asset Securitization Recourse Liabilities shall not constitute "guarantees"
hereunder.
Section 7.4 Mergers, Acquisitions.
Merge or consolidate with any Person (whether or not the
Borrower is the surviving entity), except a Subsidiary may consolidate with,
or merge into, the Borrower or another Subsidiary, or, except as permitted by
subsection 6.9(f), acquire all or substantially all of the assets or any of
the capital stock of any Person.
Section 7.5 Redemptions; Distributions.
(a) Except for redemptions by the Borrower of Class B1
Common Stock from the holders thereof who no longer have loans from the
Borrower outstanding, purchase, redeem, retire or otherwise acquire, directly
or indirectly, or make any sinking fund payments with respect to, any shares
of any class of stock of the Borrower now or hereafter outstanding or set
apart any sum for any such purpose; or,
(b) Except as otherwise permitted under the Senior Note
Agreements, declare or pay any dividends or make any distribution of any kind
on the Borrower's outstanding stock, or set aside any sum for any such
purpose, except that the Borrower may declare or pay any dividend payable
solely in shares of its common stock and any Subsidiary may declare or pay any
dividend to the Borrower.
Section 7.6 Intentionally Omitted.
Section 7.7 Changes in Business.
Make any material change in its business, or in the nature
of its operation, or liquidate or dissolve itself (or suffer any liquidation
or dissolution), or convey, sell, lease, assign, transfer or otherwise dispose
of any material portion of its property, assets or business except in the
ordinary course of business and for a fair consideration or dispose of any
shares of stock or any Indebtedness, whether now owned or hereafter acquired.
Section 7.8 Prepayments.
Make any voluntary or optional prepayment of any
Indebtedness of the Borrower or any of its Subsidiaries for borrowed money
incurred or permitted to exist under the terms of this Agreement, other than
(i) Indebtedness evidenced by the Notes; (ii) Indebtedness described on
Schedule 7.1 annexed hereto, and (iii) any such Indebtedness which has a
maturity of not more than one year from the date of its incurrence.
Section 7.9 Investments.
Make, or suffer to exist, any Investment in any Person,
including, without limitation, any shareholder, director, officer or employee
of the Borrower or any of its Subsidiaries, except investments in:
(i) Demand deposits in and one-to-four day loans which
bear interest at the Federal Funds Rate or other similar short-term unsecured
loans to Selected Banks;
(ii) Marketable obligations of the United States;
(iii) Marketable obligations guaranteed by or insured by the
United States, or those for which the full faith and credit of the United
States is pledged for the repayment of principal and interest thereon;
(iv) Marketable obligations issued, guaranteed, or fully
insured by any agency, instrumentality, or corporation of the United States
established or to be established by the Congress, for which the credit of such
agency, instrumentality, or corporation is pledged for the repayment of the
principal and interest thereof;
(v) Marketable general obligations of a state, a territory
or a possession of the United States, or any political subdivision of any of
the foregoing, or the District of Columbia, unconditionally secured by the
full faith and credit of such state, territory, possession, political
subdivision or district provided that such state, territory, possession,
political subdivision or district has general taxing authority and the power
to levy such taxes as may be required for the payment of principal and
interest thereof;
(vi) Domestic and LIBOR, negotiable time and variable rate
certificates of deposit issued by Selected Banks;
(vii) Marketable bankers' acceptances and finance bills
accepted by Selected Banks;
(viii) Prime commercial paper having a credit rating equal to
at least A-2 issued by S&P or P-2 issued by Moody's or Duff-2 issued by Duff &
Phelps Inc.;
(ix) Marketable corporate debt securities having at least
an A credit rating issued by S&P or an A-2 issued by Moody's;
(x) Repurchase, reverse repurchase agreements and security
lending agreements collateralized by securities of the type described in
subsections (ii) and (iv);
(xi) Asset-backed securities issued against a pool of
receivables which have a long-term rating of AAA or better by Standard &
Poors, Moody's or Duff & Phelps and which have an average life or final
maturity of no more than five years;
(xii) Mortgage-backed securities issued against an
underlying pool of mortgages which have a long-term rating of AAA or better by
Standard & Poors, Moody's or Duff & Phelps; provided such mortgage-backed
securities shall have an average life, as determined by the dealer's
prepayment assumptions at the time of purchase, of no more than five years;
(xiii) Subsidiaries, subject to the limitations stated in
subsection 6.9(e) hereof; and
(xiv) Promissory notes and other interest bearing
obligations acquired in the ordinary course of business and the issuance of
letters of credit in the ordinary course of business.
Section 7.10 Fiscal Year.
Change its fiscal year.
Section 7.11 ERISA Obligations.
(a) Be or become obligated to the PBGC other than in
respect of annual premium payments in excess of $50,000.
(b) Be or become obligated to the IRS with respect to
excise or other penalty taxes provided for in those provisions of Section 4975
of the Code, as in effect or hereafter amended or supplemented, in excess of
$50,000.
Section 7.12 Amendment of Documents.
(a) Modify, amend, supplement or terminate, or
agree to modify, amend, supplement or terminate its by-laws.
(b) Modify, amend or supplement or agree to modify, amend
or supplement the Class A Notes (including, without limitation, the
subordination provisions set forth therein) in any respect that could
materially and adversely affect the financial condition or business of the
Borrower or its ability to perform hereunder or could materially and adversely
affect the rights of the Agent and the Banks hereunder.
Section 7.13 Transactions with Affiliates.
Except as expressly permitted by this Agreement, and as set
forth on Schedule 7.13 annexed hereto, directly or indirectly: (i) make any
Investment in an Affiliate; or (ii) consolidate with or purchase or acquire
assets from an Affiliate; or enter into any other transaction directly or
indirectly with or for the benefit of any Affiliate (including, without
limitation, guarantees and assumptions of obligations of an Affiliate);
provided, however, that (a) any Affiliate who is an individual may serve as an
employee or director of the Borrower and receive reasonable compensation for
his services in such capacity, (b) the Borrower may enter into any transaction
with an Affiliate providing for the leasing of property, the rendering or
receipt of services or the purchase or sale of product, inventory and other
assets in the ordinary course of business if the monetary or business
consideration arising therefrom would be substantially as advantageous to the
Borrower as the monetary or business consideration which would obtain in a
comparable arm's length transaction with a Person not an Affiliate.
<PAGE>
Article 8. Events of Default.
If any one or more of the following events ("Events of
Default") shall occur and be continuing, the Total Commitments shall terminate
and the entire unpaid balance of the principal of and interest on the Notes
outstanding and all other obligations and Indebtedness of the Borrower to the
Banks, the Swing Line Lender and the Agent arising hereunder and under the
other Loan Documents shall immediately become due and payable upon written
notice to that effect given to the Borrower by the Agent (except that in the
case of the occurrence of any Event of Default described in Section 8.7 no
such notice shall be required), without presentment or demand for payment,
notice of non-payment, protest or further notice or demand of any kind, all of
which are expressly waived by the Borrower; provided, however, that: (i) in
case of the occurrence of the Event of Default described in Section 8.1, no
such notice shall be required after the passage of ten (10) days after the
Grace Period provided for therein; and (ii) in case of the occurrence of the
Event of Default described in Section 8.7, no such notice shall be required.
Section 8.1 Payments.
Failure to make any payment or mandatory prepayment of
principal or interest upon any Note or any fee pursuant to this Agreement
within three (3) Business Days after the due date thereof (the "Grace
Period"); or,
Section 8.2 Incurring of Indebtedness
during the Grace Period.
Incurring of any Indebtedness during the Grace Period
including, without limitation, the issuance of Senior Notes; or,
Section 8.3 Covenants.
Failure to perform or observe any of the agreements of the
Borrower contained in Section 6.9 or Article 7 hereof (except for the
agreements of the Borrower contained in Sections 7.9 or 7.13); or,
Section 8.4 Other Covenants.
Failure by the Borrower to perform or observe the agreements
of the Borrower contained in Sections 7.9 or 7.13 hereof or any other term,
condition or covenant of this Agreement or of any of the other Loan Documents
to which it is a party, including, without limitation, any of the Notes, which
shall remain unremedied for a period of fifteen (15) days after notice thereof
shall have been given to the Borrower by the Agent; or,
Section 8.5 Other Defaults.
(a) Failure by the Borrower or any of its Subsidiaries to
perform or observe any term, condition or covenant of any bond, note,
debenture, loan agreement, indenture, guaranty, trust agreement, mortgage or
similar instrument to which the Borrower or such Subsidiary is a party or by
which it is bound, or by which any of its properties or assets may be affected
including, without limitation, the Senior Note Agreements or any other
evidences of Indebtedness (a "Debt Instrument"), so that, as a result of any
such failure to perform, the Indebtedness included therein or secured or
covered thereby may be declared due and payable prior to the date on which
such Indebtedness would otherwise become due and payable; or,
(b) Any event or condition referred to in any Debt
Instrument shall occur or fail to occur, so that, as a result thereof, the
Indebtedness included therein or secured or covered thereby may be declared
due and payable prior to the date on which such Indebtedness would otherwise
become due and payable; or,
(c) Failure to pay any Indebtedness for borrowed money
when due under any Debt Instrument, whether at final maturity or, in the case
of Debt Instruments payable on demand, upon demand; or,
Section 8.6 Representations and Warranties.
Any representation or warranty made in writing to the Banks,
the Swing Line Lender or the Agent in any of the Loan Documents or in connec-
tion with the making of the Loans or the Swing Line Loans, or any certificate,
statement or report made or delivered in compliance with this Agreement, shall
have been false or misleading in any material respect when made or delivered;
or,
Section 8.7 Bankruptcy.
(a) The Borrower shall make an assignment for the benefit
of creditors, file a petition in bankruptcy, be adjudicated insolvent,
petition or apply to any tribunal for the appointment of a receiver, custodi-
an, or any trustee for it or a substantial part of its assets, or shall
commence any proceeding under any bankruptcy, reorganization, arrangement,
readjustment of debt, dissolution or liquidation law or statute of any
jurisdiction, whether now or hereafter in effect, or the Borrower shall take
any action to authorize any of the foregoing actions; or there shall have been
filed any such petition or application, or any such proceeding shall have been
commenced against it, which remains undismissed for a period of thirty (30)
days or more; or any order for relief shall be entered in any such proceeding;
or the Borrower by any act or omission shall indicate its consent to, approval
of or acquiescence in any such petition, application or proceeding or the
appointment of a custodian, receiver or any trustee for it or any substantial
part of any of its properties, or shall suffer any custodianship, receivership
or trusteeship to continue undischarged for a period of thirty (30) days or
more; or,
(b) The Borrower shall generally not pay its debts as such
debts become due; or,
(c) The Borrower shall have concealed, removed, or
permitted to be concealed or removed, any part of its property, with intent to
hinder, delay or defraud its creditors or any of them or made or suffered a
transfer of any of its property which may be fraudulent under any bankruptcy,
fraudulent conveyance or similar law; or shall have made any transfer of its
property to or for the benefit of a creditor at a time when other creditors
similarly situated have not been paid; or shall have suffered or permitted,
while insolvent, any creditor to obtain a Lien upon any of its property
through legal proceedings or distraint which is not vacated within thirty (30)
days from the date thereof; or,
Section 8.8 Judgments.
Any judgment against the Borrower or any attachment, levy of
execution against any of its properties for any amount in excess of $500,000
shall remain unpaid, unstayed on appeal, undischarged, unbonded or undismissed
for a period of sixty (60) days or more; or,
Section 8.9 ERISA.
(a) The termination of any Plan or the institution by the
PBGC of proceedings for the involuntary termination of any Plan, in either
case, by reason of, or which results or could result in, a "material
accumulated funding deficiency" under Section 412 of the Code; or,
(b) Failure by the Borrower to make required
contributions, in accordance with the applicable provisions of ERISA, to each
of the Plans hereafter established or assumed by it.
<PAGE>
Article 9. The Agent.
Section 9.1 Appointment, Powers and Immunities.
Each Bank hereby irrevocably appoints and authorizes the
Agent to act as its agent hereunder, and under the other Loan Documents with
such powers as are specifically delegated to the Agent by the terms of this
Agreement, and the other Loan Documents together with such other powers as are
reasonably incidental thereto. The Agent shall have no duties or responsi-
bilities except those expressly set forth in this Agreement and the other Loan
Documents and shall not be a trustee for any Bank. The Agent shall not be
responsible to the Banks for any recitals, statements, representations or
warranties contained in this Agreement, or the other Loan Documents in any
certificate or other document referred to or provided for in, or received by
any of them under, this Agreement, or the other Loan Documents, or for the
value, validity, effectiveness, genuineness, enforceability or sufficiency of
this Agreement or the other Loan Documents or any other document referred to
or provided for herein or therein. The Agent may employ agents and attorneys
- -in-fact and shall not be answerable, except as to money or securities received
by it or its authorized agents, for the negligence or misconduct of any such
agents or attorneys-in-fact selected by it with reasonable care. Neither the
Agent nor any of its directors, officers, employees or agents shall be liable
or responsible for any action taken or omitted to be taken by it or them
hereunder, the other Loan Documents or in connection herewith or therewith,
except for its or their own gross negligence or willful misconduct.
Section 9.2 Reliance by Agent.
The Agent shall be entitled to rely upon any certification,
notice or other communication (including any thereof by telephone, telex,
telegram or cable) believed by it to be genuine and correct and to have been
signed or sent by or on behalf of the proper person or persons, and upon
advice and statements of legal counsel, independent accountants and other
experts selected by the Agent. As to any matters not expressly provided for by
this Agreement or the other Loan Documents the Agent shall in all cases be
fully protected in acting, or in refraining from acting, hereunder, or under
the other Loan Documents in accordance with instructions signed by the
Majority Banks, and such instructions of the Majority Banks and any action
taken or failure to act pursuant thereto shall be binding on all of the Banks.
Section 9.3 Events of Default.
The Agent shall not be deemed to have knowledge of the
occurrence of a Default (other than the non-payment of principal of or
interest on Loans) unless the Agent has received notice from a Bank or the
Borrower specifying such Default and stating that such notice is a "Notice of
Default". In the event that the Agent receives such a notice of the occur-
rence of a Default, the Agent shall give notice thereof to the Banks (and
shall give each Bank notice of each such non-payment). The Agent shall
(subject to Section 9.7 hereof) take such action with respect to such Default
as shall be directed by the Majority Banks.
Section 9.4 Rights as a Bank.
With respect to its Total Commitment, and the Loans made by
it, the Agent in its capacity as a Bank hereunder shall have the same rights
and powers hereunder as any other Bank and may exercise the same as though it
were not acting as the Agent, and the term "Bank" or "Banks" shall, unless the
context otherwise indicates, include the Agent in its individual capacity.
The Agent and its Affiliates may (without having to account therefor to any
Bank) accept deposits from, lend money to and generally engage in any kind of
banking, trust or other business with the Borrower or its Affiliates, as if it
were not acting as the Agent, and the Agent may accept fees and other
consideration from the Borrower or its Affiliates, for services in connection
with this Agreement, or any of the other Loan Documents or otherwise without
having to account for the same to the Banks.
Section 9.5 Indemnification.
(a) The Banks shall indemnify the Agent (to the extent not
reimbursed by the Borrower under Sections 10.1 and 10.2 hereof), ratably in
accordance with the aggregate principal amount of the Loans made by the Banks
(or, if no Loans are at the time outstanding, ratably in accordance with their
respective Total Commitments), for any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind and nature whatsoever which may be imposed on,
incurred by or asserted against the Agent in any way relating to or arising
out of this Agreement, or any of the other Loan Documents (other than the
Swing Line Note) or any other documents contemplated by or referred to herein
or therein or the transactions contemplated by or referred to herein or
therein or the transactions contemplated hereby and thereby (including,
without limitation, the costs and expenses which the Borrower is obligated to
pay under Sections 10.1 and 10.2 hereof, but excluding, unless a Default has
occurred and is continuing, normal administrative costs and expenses incident
to the performance of its agency duties hereunder or under the other Loan
Documents (other than the Swing Line Note)) or the enforcement of any of the
terms hereof or of the other Loan Documents, or of any such other documents,
provided that no Bank shall be liable for any of the foregoing to the extent
they arise from the gross negligence or willful misconduct of the party to be
indemnified.
(b) The Banks shall indemnify the Swing Line Lender (to
the extent not reimbursed by the Borrower under Sections 10.1 and 10.2
hereof), ratably in accordance with the aggregate principal amount of the B
Loans made by the Banks (or, if no B Loans are at the time outstanding,
ratably in accordance with their respective B Commitments), for any and all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind and nature whatsoever
which may be imposed on, incurred by or asserted against the Swing Line Lender
in any way relating to or arising out of this Agreement, or the Swing Line
Note (including, without limitation, the costs and expenses which the Borrower
is obligated to pay under Sections 10.1 and 10.2 hereof) or the enforcement of
any of the terms hereof in respect of the Swing Line Loan provisions and the
Swing Line Note, provided that no Bank shall be liable for any of the
foregoing to the extent they arise from the gross negligence or willful
misconduct of the party to be indemnified.
Section 9.6 Non-Reliance on Agent and Other Banks.
Each Bank agrees that it has, independently and without
reliance on the Agent or any other Bank, and based on such documents and
information as it has deemed appropriate, made its own credit analysis of the
Borrower and decision to enter into this Agreement and that it will,
independently and without reliance upon the Agent or any other Bank, and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own analysis and decisions in taking or not taking action
under this Agreement, or the other Loan Documents. The Agent shall not be
required to keep itself informed as to the performance or observance by the
Borrower of this Agreement, or the other Loan Documents or any other document
referred to or provided for herein or therein or to inspect the properties or
books of the Borrower. Except for notices, reports and other documents and
information expressly required to be furnished to the Banks by the Agent
hereunder or the other Loan Documents, the Agent shall not have any duty or
responsibility to provide any Bank with any credit or other information
concerning the affairs, financial condition or business of the Borrower, which
may come into the possession of the Agent or any of its Affiliates.
Section 9.7 Failure to Act.
Except for action expressly required of the Agent hereunder,
or under the other Loan Documents, the Agent shall in all cases be fully
justified in failing or refusing to act hereunder or thereunder unless it
shall be indemnified to its satisfaction by the Banks against any and all
liability and expense which may be incurred by it by reason of taking or
continuing to take any such action.
Section 9.8 Resignation or Removal of Agent.
Subject to the appointment and acceptance of a successor
Agent as provided below, the Agent may resign at any time by giving not less
than 10 days prior written notice thereof to the Banks and the Borrower and
the Agent may be removed at any time with or without cause by the Majority
Banks. Upon any such resignation or removal, the Majority Banks shall have
the right to appoint a successor Agent. If no successor Agent shall have been
so appointed by the Majority Banks and shall have accepted such appointment
within 30 days after the retiring Agent's giving of notice of resignation or
the Majority Banks' removal of the retiring Agent, then the retiring Agent
may, on behalf of the Banks, after consultation with the Borrower, appoint a
successor Agent which shall be one of the Banks. Upon the acceptance of any
appointment as Agent hereunder by a successor Agent, such successor Agent
shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Agent, and the retiring Agent shall be
discharged from its duties and obligations hereunder and under the other Loan
Document. After any retiring Agent's resignation or removal hereunder as
Agent, the provisions of this Article 9 shall continue in effect for its
benefit in respect of any actions taken or omitted to be taken by it while it
was acting as the Agent.
<PAGE>
Article 10. Miscellaneous Provisions.
Section 10.1 Fees and Expenses; Indemnity.
The Borrower will promptly (and in any event within 30 days
after its receipt of an invoice or statement therefor) pay all costs of the
Agent in preparing the Loan Documents and all costs and expenses of the issue
of the Notes and of the Borrower's performance of and compliance with all
agreements and conditions contained herein on its part to be performed or com-
plied with and the reasonable fees and expenses and disbursements of counsel
to the Agent, in connection with the preparation, execution and delivery,
administration, interpretation and enforcement of this Agreement, the other
Loan Documents and all other agreements, instruments and documents relating to
this transaction, the consummation of the transactions contemplated by all
such documents, the negotiation, preparation and execution and delivery of any
amendment, modification or supplement of or to, or any consent or waiver
under, any such document (or any such instrument which is proposed but not
executed and delivered) and with any claim or action threatened, made or
brought against any of the Banks, the Swing Line Lender or the Agent arising
out of or relating to any extent to this Agreement, the other Loan Documents
or the transactions contemplated hereby or thereby. In addition, the Borrower
will promptly (and in any event within 30 days after their receipt of an
invoice or statement therefor) pay all costs and expenses (including, without
limitation, reasonable fees and disbursements of counsel) suffered or incurred
by each Bank and the Swing Line Lender in connection with its enforcement of
the payment of the Notes held by it or any other sum due to it under this
Agreement or any of the other Loan Documents or any of its other rights
hereunder or thereunder. In addition to the foregoing, the Borrower shall
indemnify each Bank, the Swing Line Lender and the Agent against, and hold
each of them harmless from, any loss, liabilities, damages, claims, costs and
expenses (including reasonable attorneys' fees and disbursements) suffered or
incurred by any of them arising out of, resulting from or in any manner
connected with, the execution, delivery and performance of this Agreement and
the other Loan Documents, the Loans, the Swing Line Loans and any and all
transactions related to or consummated in connection with the Loans and the
Swing Line Loans including, without limitation, losses, liabilities, damages,
claims, costs and expenses suffered or incurred by the Agent, the Swing Line
Lender or any Bank in investigating, preparing for, defending against, or
providing evidence, producing documents or taking any other action in respect
of any commenced or threatened litigation, administrative proceeding or
investigation under any federal securities law or any other statute of any
jurisdiction, or any regulation, or at common law or otherwise, which is
alleged to arise out of or is based upon (1) any untrue statement or alleged
untrue statement of any material fact of the Borrower and its affiliates in
any document or schedule filed with the Securities and Exchange Commission or
any other governmental body; (2) any omission or alleged omission to state any
material fact required to be stated in such document or schedule, or necessary
to make the statements made therein, in light of the circumstances under which
made, not misleading; (3) any acts, practices or omissions or alleged acts,
practices or omissions of the Borrower or its agents related to the making of
any acquisition, purchase of shares or assets pursuant thereto, financing of
such purchases or the consummation of any other transactions contemplated by
any such acquisitions which are alleged to be in violation of any federal
securities law or of any other statute, regulation or other law of any
jurisdiction applicable to the making of any such acquisition, the purchase of
shares or assets pursuant thereto, the financing of such purchases or the
consummation of the other transactions contemplated by any such acquisition;
or (4) any withdrawals, termination or cancellation of any such proposed
acquisition for any reason whatsoever; except to the extent any of the
foregoing results form the gross negligence or willful misconduct of the party
to be indemnified. The indemnity set forth herein shall be in addition to any
other obligations or liabilities of the Borrower to the Agent, the Swing Line
Lender and the Banks hereunder or at common law or otherwise. The provisions
of this Section 10.1 shall survive the payment of the Notes and the
termination of this Agreement.
Section 10.2 Taxes.
If, under any law in effect on the date of the closing of
any Loan or Swing Line Loan hereunder, or under any retroactive provision of
any law subsequently enacted, it shall be determined that any Federal, state
or local tax is payable in respect of the issuance of any Note, as
contemplated by this Agreement, then the Borrower will pay any such tax and
all interest and penalties, if any, and will indemnify the Banks, the Swing
Line Lender and the Agent against and save each of them harmless from any loss
or damage resulting from or arising out of the nonpayment or delay in payment
of any such tax. If any such tax or taxes shall be assessed or levied against
any Bank, the Swing Line Lender or any other holder of a Note, such Bank, or
such other holder, as the case may be, may notify the Borrower and make
immediate payment thereof, together with interest or penalties in connection
therewith, and shall thereupon be entitled to and shall receive immediate
reimbursement therefor from the Borrower. Notwithstanding any other provision
contained in this Agreement, the covenants and agreements of the Borrower in
this Section 10.2 shall survive payment of the Notes and the termination of
this Agreement.
Section 10.3 Payments.
As set forth in Section 2.14 hereof, all payments by the
Borrower on account of principal, interest, fees and other charges (including
any indemnities) shall be made to the Agent at the Principal Office of the
Agent (except with respect to Swing Line Loans which shall be payable in
accordance with subsection 2.11 hereof), in lawful money of the United States
of America in immediately available funds, by wire transfer or otherwise, not
later than 12:00 Noon, New York City time on the date such payment is due. Any
such payment made on such date but after such time shall, if the amount paid
bears interest, be deemed to have been made on and interest shall continue to
accrue and be payable thereon until the next succeeding Business Day. If any
payment of principal or interest becomes due on a day other than a Business
Day, then payment shall be due on the next Business Day and such extension
shall be included in computing interest in connection with such payment. All
payments hereunder and under the Notes shall be made without set-off or
counterclaim and in such amounts as may be necessary in order that all such
payments shall not be less than the amounts otherwise specified to be paid
under this Agreement and the Notes (after withholding for or on account of (i)
any present or future taxes, levies, imposts, duties or other similar charges
of whatever nature imposed by any government or any political subdivision or
taxing authority thereof, other than any tax (except those referred to in
clause (ii) below) on or measured by the net income of the Bank or the Swing
Line Lender to which any such payment is due pursuant to applicable federal,
state and local income tax laws, and (ii) deduction of amounts equal to the
taxes on or measured by the net income of such Bank or the Swing Line Lender
payable by such Bank or the Swing Line Lender with respect to the amount by
which the payments required to be made under this sentence exceed the amounts
otherwise specified to be paid in this Agreement and the Notes). Upon payment
in full of any Note, the Bank holding such Note shall mark the Note "Paid" and
return it to the Borrower.
Section 10.4 Survival of Agreements and Repre- sentations;
WAIVER OF TRIAL BY JURY.
All agreements, representations and warranties made herein
shall survive the delivery of this Agreement and the Notes. THE BORROWER
WAIVES TRIAL BY JURY IN ANY LITIGATION IN ANY COURT WITH RESPECT TO, IN
CONNECTION WITH, OR ARISING OUT OF, THIS AGREEMENT, THE NOTES, ANY OF THE
OTHER LOAN DOCUMENTS, OR ANY INSTRUMENT OR DOCUMENT DELIVERED PURSUANT TO THIS
AGREEMENT, OR THE VALIDITY, PROTECTION, INTERPRETATION, COLLECTION OR ENFORCE-
MENT THEREOF.
Section 10.5 Lien on and Set-off of Deposits.
As security for the due payment and performance of all
amounts payable hereunder and under the Notes, the Borrower hereby grants to
the Swing Line Lender and the Agent for the ratable benefit of the Banks a
Lien on any and all deposits or other sums at any time credited by or due from
the Agent or any Bank to the Borrower, whether in regular or special
depository accounts or otherwise, and any and all monies, securities and other
property of the Borrower, and the proceeds thereof, now or hereinafter held or
received by or in transit to any Bank, the Swing Line Lender or the Agent from
or for the Borrower, whether for safekeeping, custody, pledge, transmission,
collection or otherwise, and any such deposits, sums, monies, securities and
other property, may at any time after the occurrence and during the
continuance of any Event of Default be set-off, appropriated and applied by
any Bank, the Swing Line Lender or the Agent against any of the Indebtedness
of the Borrower to the Banks and the Agent, whether or not any of such
Indebtedness is then due.
Section 10.6 Modifications, Consents and
Waivers; Entire Agreement.
No modification, amendment or waiver of or with respect to
any provision of this Agreement, any notice, or any of the other Loan
Documents and all other agreements, instruments and documents delivered
pursuant hereto or thereto, nor consent to any departure by the Borrower from
any of the terms or conditions thereof, shall in any event be effective unless
it shall be in writing and signed by the Agent and each Bank except that: (i)
any modification or amendment of, or waiver or consent with respect to,
Article 4 may be signed only by the Agent and the Majority Banks (provided,
however, that the consummation of a Loan by a Bank shall be deemed, with
respect to such Loan only, to have the effect of the execution by such Bank of
a waiver of, or consent to a departure from, any term or provision of Article
4 which has not been satisfied as of the date of the consummation of such
Loan); (ii) any modification or amendment of, or waiver or consent with
respect to, Articles 5, 6, 7, 8 (except for Sections 8.1 and 8.7 hereof) and
10 (other than this Section 10.6 and as stated in clause (iii) hereof with
respect to Section 7.12 hereof) may be signed only by the Agent and the
Majority Banks and (iii) any waiver or consent, pursuant to Section 7.12
hereof, to a change in the by-laws of the Borrower that the Agent determines
to be immaterial to the performance of the obligations of the Borrower
hereunder may be signed only by the Agent. Any such waiver or consent shall
be effective only in the specific instance and for the purpose for which
given. No consent to or demand on the Borrower, in any case shall, of itself,
entitle it to any other or further notice or demand in similar or other
circumstances. This Agreement embodies the entire agreement and
understanding among the Banks, the Agent and the Borrower and supersedes all
prior agreements and understandings relating to the subject matter hereof.
Section 10.7 Remedies Cumulative.
Each and every right granted to the Agent, the Swing Line
Lender and the Banks hereunder or under any other document delivered hereunder
or in connection herewith, or allowed it by law or equity, shall be cumulative
and may be exercised from time to time. No failure on the part of the Agent,
the Swing Line Lender or any Bank or the holder of any Note to exercise, and
no delay in exercising, any right shall operate as a waiver thereof, nor shall
any single or partial exercise of any right preclude any other or future
exercise thereof or the exercise of any other right. The due payment and
performance of the Borrower's indebtedness, liabilities and obligations under
the Notes and this Agreement shall be without regard to any counterclaim,
right of offset or any other claim whatsoever which the Borrower may have
against any Bank, the Swing Line Lender or the Agent and without regard to any
other obligation of any nature whatsoever which any Bank, the Swing Line
Lender or the Agent may have to the Borrower, and no such counterclaim or
offset shall be asserted by the Borrower in any action, suit or proceeding
instituted by any Bank, the Swing Line Lender or the Agent for payment or
performance of the Borrower's indebtedness, liabilities or obligations under
the Notes, this Agreement or otherwise.
Section 10.8 Further Assurances.
At any time and from time to time, upon the request of the
Agent, the Borrower, shall execute, deliver and acknowledge or cause to be
executed, delivered and acknowledged, such further documents and instruments
and do such other acts and things as the Agent may reasonably request in order
to fully effect the purposes of this Agreement, the Notes, the other Loan
Documents and any other agreements, instruments and documents delivered
pursuant hereto or in connection with the Loans and the Swing Line Loans.
Section 10.9 Notices.
All notices, requests, reports and other communications
pursuant to this Agreement except for notices pursuant to Section 2.3 hereof
shall be in writing, either by letter (delivered by hand or commercial
messenger service or sent by certified mail, return receipt requested, except
for routine reports delivered in compliance with Article 5 hereof which may be
sent by ordinary first-class mail), telecopier or telegram, addressed as
follows:
(a) If to the Borrower:
National Consumer Cooperative Bank
1401 Eye Street - Suite 700
Washington, D.C. 20005
Attention: Chief Financial Officer
Telecopier No.: 202-336-7803
with a copy to:
(b) Shea & Gardner
1800 Massachusetts Avenue, N.W.
Washington, D.C. 20036
Attention: Martin J. Flynn, Esq.
Telecopier No.: 202-828-2195
(c) If to any Bank:
To its address set forth below
its name on the signature pages
hereof, with a copy to the Agent; and,
(d) If to the Agent and the Swing Line Lender:
Fleet Bank, N.A.
1185 Avenue of the Americas
New York, New York 10036
Attention: Mr. Thomas J. Levy
Vice President
Telecopier No.: 212-819-4112
with a copy (other than in the case of Borrowing
Notices and reports and other documents delivered in
compliance with Article 5 hereof) to:
(e) Winston & Strawn
200 Park Avenue
New York, New York 10166
Attn: Richard S. Talesnick, Esq.
Telecopier No.: 212-294-4700
Any notice, request or communication hereunder shall be deemed to have been
given on the day on which it is delivered by hand or such commercial messenger
service to such party at its address specified above, or, if sent by mail, on
the third Business Day after the day deposited in the mail, postage prepaid,
in the case of telegraphic notice, when delivered to the telegraph company,
addressed as aforesaid or in the case of telecopy notice when sent by
telecopy. Any party may change the person or address to whom or which notices
are to be given hereunder, by notice duly given hereunder; provided, however,
that any such notice shall be deemed to have been given hereunder only when
actually received by the party to which it is addressed.
Section 10.10 Counterparts.
This Agreement may be signed in any number of counterparts
with the same effect as if the signatures thereto and hereto were upon the
same instrument.
Section 10.11 Construction; GOVERNING LAW.
The headings used in this Agreement and the table of
contents are for convenience only and shall not be deemed to constitute a
part hereof. All uses herein of the masculine gender or of singular or plural
terms shall be deemed to include uses of the feminine or neuter gender or
plural or singular terms, as the context may require. THIS AGREEMENT, THE
NOTES, THE OTHER LOAN DOCUMENTS AND ALL OTHER DOCUMENTS AND INSTRUMENTS
EXECUTED AND DELIVERED IN CONNECTION HEREWITH AND THEREWITH, SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK.
Section 10.12 Severability.
The provisions of this Agreement are severable, and if any
clause or provision hereof shall be held invalid or unenforceable in whole or
in part in any jurisdiction, then such invalidity or unenforceability shall
affect only such clause or provision, or part thereof, in such jurisdiction
and shall not in any manner affect such clause or provision in any other
jurisdiction, or any other clause or provision in this Agreement in any
jurisdiction. Each of the covenants, agreements and conditions contained in
this Agreement is independent and compliance by the Borrower with any of them
shall not excuse non-compliance by the Borrower with any other. The Borrower
shall not take any action the effect of which shall constitute a breach or
violation of any provision of this Agreement.
Section 10.13 Binding Effect; No
Assignment or Delegation.
This Agreement shall be binding upon and inure to the
benefit of the Borrower and its successors and to the benefit of the Banks and
the Agent and their respective successors and assigns. The rights and
obligations of the Borrower under this Agreement shall not be assigned or
delegated without the prior written consent of the Agent, and any purported
assignment or delegation without such consent shall be void.
Section 10.14 Assignments; Participations.
(a) Each Bank may, at its own expense, assign to one or
more banks or other financial institutions all or a portion of its rights and
obligations under this Agreement (including, without limitation, all or a
portion of its Total Commitment, the Loans owing to it and the Note(s) held by
it); provided, however, that no rights shall be assigned unless the
corresponding obligations are assumed by the proposed assignee and (i) each
such assignment shall be of a constant, and not a varying, percentage of all
of the assigning Bank's rights and obligations under this Agreement, (ii) the
portion of the Total Commitment of the assigning Bank being assigned pursuant
to each such assignment shall in no event be less than $5,000,000 and shall be
an integral multiple of $1,000,000 in excess thereof, (iii) any assignment
made by an assigning Bank shall be subject to the payment by such assigning
Bank to the Agent of an assignment fee in the amount of $3,500.00, (iv) prior
to any such assignment, the Agent and, provided no Event of Default then
exists, the Borrower, shall have consented thereto, unless such assignment is
to an Affiliate of such Bank or is pursuant to subsection 10.14(b) below
(which consent, in either case, shall not be unreasonably withheld), and (v)
the assigning Bank and the assignee thereof shall execute and deliver an
assignment and acceptance agreement in form and substance satisfactory to the
Agent, which shall be delivered to the Agent for its acceptance.
(b) Nothing herein provided shall prevent any Bank or its
assignees from selling at any time a participation in its Total Commitment,
its Loans, any fees payable to it hereunder or any other rights hereunder (the
purchaser of any such parti-cipation being hereinafter sometimes referred to
as a "Partici-pant"); provided, however, that, (1) no such sale or participa
- -tion shall alter such Bank's obligations hereunder, (2) no Bank, its assignees
or their Participants may grant participations if such Bank, its assignees and
their Participants have outstanding at such time participations to an
aggregate of three (3) or more Participants, and (3) any agreement pursuant to
which any Bank may grant any such participation shall provide that such Bank
shall retain the sole right and responsibility and exercise the rights of such
Bank, and enforce the obligations of the Borrower relating to the Total
Commitment, the Loans, the fees payable hereunder and any other right of such
Bank including, without limitation, the right to approve any amendment,
modification or waiver of any provision of this Agreement or any other Loan
Document and the right to take action to have the Loans declared due and
payable. No Participant shall have any rights under this Agreement or in
respect of a Bank's Total Commitment, Loans, fees payable to it hereunder or
any other rights hereunder other than to receive payments in respect of such
Participant's participa-tion from such Bank. No sale or participation by a
Bank of its Total Commitment or Loans shall affect such Bank's right to
receive amounts payable to it pursuant to Sections 2.20, 2.24 and 10.2 hereof,
calculated on the basis of the full amount of such
Bank's Loan or Total Commitment. A Bank may furnish from time to time any
information concerning the Borrower and any of its Subsidiaries or any of the
Loan Documents to any Participant or prospective participant; provided that
such Bank shall use its best efforts to assure that any such Participant or
prospective participant shall maintain due confidentiality with respect to
such information.
(c) Notwithstanding anything to the contrary contained herein,
any Bank may assign and pledge all or any portion of its right under this
Agreement and its Notes to any Federal Reserve Bank or the United States
Treasury as collateral security pursuant to Regulation A of the Board of
Governors of the Federal Reserve System and any Operating Circular issued by
such Federal Reserve Bank, provided that any payment in respect of the Notes
and any other Indebtedness of the Borrower under this Agreement made by the
Borrower to the assigning and/or the pledging Bank in accordance with the
terms of this Agreement shall satisfy the Borrower's obligations hereunder in
respect of such assigned interest to the extent of such payment. No such
assignment shall release the assigning Bank from its obligations hereunder.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed on the date first above written.
NATIONAL CONSUMER COOPERATIVE BANK,
D/B/A NATIONAL COOPERATIVE BANK
By__________________________________
Name:
Title:
<PAGE>
A Commitment FLEET BANK, N.A.
as Agent and as a Bank,
$20,000,000 and as Swing Line Lender
B Commitment By ______________________________
Name: Thomas J. Levy
$20,000,000 Title: Vice President
Lending Office for Prime Rate
Loans and LIBOR Loans and
Address for Notices:
1185 Avenue of the Americas
New York, New York 10036
Attn: Mr. Thomas J. Levy
Vice President
Telephone No.: 212-819-5751
Telecopier No.: 212-819-4112
Telex No.: 62610 NBNA UW
<PAGE>
A Commitment COMERICA BANK
$16,250,000
By:________________________________
Name: Tamara J. Gurne
Title: Assistant Vice President
B Commitment Lending Office for Prime Rate
Loans and LIBOR Loans and
$16,250,000 Address for Notices:
Comerica Bank
500 Woodward Avenue
Detroit, Michigan 48226
Attn.: Diana Pascoe
Customer Assistant
Telephone No.: 313-222-7806
Telecopier No.: 313-222-3330
<PAGE>
A Commitment CREDIT SUISSE FIRST BOSTON
$15,000,000
By: _______________________________
Name:
Title:
B Commitment By: _______________________________
Name:
$15,000,000 Title:
Lending Office for Prime Rate
Loans and LIBOR Loans and
Address for Notices:
Credit Suisse First Boston
Eleven Madison Avenue
New York, New York 10010
Attn: James E. Lee
Telephone No.: 212-325-9104
Telecopier No.: 212-325-8320
<PAGE>
A Commitment COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., Rabobank
$15,000,000 Nederland, New York Branch
By: _______________________________
Name:
Title:
By: _______________________________
Name:
Title:
B Commitment Lending Office for Prime Rate
Loans and LIBOR Loans and
$15,000,000 Address for Notices:
245 Park Avenue
New York, New York 10167
Attn: Angela Reilly
Vice President
Telephone No.: 212-916-7919
Telecopier No.: 212-916-7837
<PAGE>
A Commitment PNC BANK, NATIONAL ASSOCIATION
$13,750,000
By:________________________________
Name:
Title:
B Commitment Lending Office for Prime Rate
Loans and LIBOR Loans and
$13,750,000 Address for Notices:
PNC Bank, National Association
1600 Market Street/21st Floor
Philadelphia, Pennsylvania 19103
Attn.: Amy T. Petersen
Vice President
Telephone No.: 215-585-5259
Telecopier No.: 215-585-5972
Telex No.: 170-155
<PAGE>
A Commitment SIGNET BANK
$10,000,000
By:________________________________
Name:
Title:
B Commitment Lending Office for Prime Rate
Loans and LIBOR Loans:
$10,000,000
Signet Bank
7799 Leesburg Pike
Falls Church, Virginia 22043
Address for Notices:
Signet Bank
1350 Connecticut Avenue NW
Suite 1000
Washington DC 20036-1701
Attn.: Linwood White
Senior Vice President
Telephone No.: 202-331-5453
Telecopier No.: 202-872-9250
Telex No.: 82-724-0507
<PAGE>
A Commitment
BANK AUSTRIA AKTIENGESELLSCHAFT
$8,750,000
By:________________________________
Name:
B Commitment Title:
$8,750,000
By:________________________________
Name:
Title:
Lending Office for Prime Rate
Loans and LIBOR Loans and
Address for Notices:
Bank Austria AG
565 Fifth Avenue
New York, New York 10017
Attn.: Robert Melendez, AT
Loan Operations
Telephone No.: 212-880-1173
Telecopier No.: 212-880-1180
Telex No.: 425605
<PAGE>
A Commitment THE BANK OF NOVA SCOTIA
$8,750,000
By: __________________________
Name: James R. Trimble
Title: Senior Relationship
Manager
B Commitment Lending Office for Prime Rate Loans
and LIBOR Loans and
$8,750,000 Address for Notices:
The Bank of Nova Scotia
One Liberty Plaza
New York, New York 10006
Attn: Pier Griffith
Vice President
Telephone No.: 212-225-5084
Telecopier No.: 212-225-5145
<PAGE>
A Commitment FIRST NATIONAL BANK OF MARYLAND
$8,750,000
By:_______________________________
Name: Steven A. Schramm
Title: Assistant Vice President
B Commitment Lending Office for Prime Rate Loans and
LIBOR Loans and
$8,750,000 Address for Notices:
First National Bank of Maryland
Financial Institutions Division
P.O. Box 1596 (101-710)
Baltimore, Maryland 21203
Attn: Deb Hamilton
Telephone No.: 410-244-4434
Telecopier No.: 410-244-4234
<PAGE>
A Commitment UNION BANK OF CALIFORNIA, N.A.
$8,750,000
B Commitment By ______________________________
Name: James L. Chappel
Title: Vice President
$8,750,000
Lending Office for Prime Rate
Loans and Notices:
Union Bank of California, N.A.
445 So. Figueroa Street
Los Angeles, California 90071
Attn: James L. Chappel
Vice President
Telephone No.: 213-236-4086
Telecopier No.: 213-236-5548
Lending Office for LIBOR Loans:
Union Bank of California, N.A.
445 So. Figueroa Street
Los Angeles, California 90071
Attn: Kathleen Alba
Telephone No.: 213-236-7494
Telecopier No.: 213-236-5548
A Commitment
DG BANK DEUTSCHE GENOSSENSCHAFTBANK
CAYMAN ISLANDS BRANCH
$5,000,000
By:_______________________________
Name:
Title:
B Commitment
By:_______________________________
$5,000,000 Name:
Title:
Lending Office for Prime Rate Loans and
LIBOR Loans and Address for
Notices:
DG Bank Deutsche Genossenschaftbank
Cayman Islands Branch
609 Fifth Avenue
New York, New York 10017
Attn: Edward Thome
cc: Paul Connolly
Telephone No.: 212-745-1464
Telecopier No.: 212-745-1422/1566
Telex No. 666888 MCI
<PAGE>
EXHIBITS AND SCHEDULES
EXHIBITS
A-1 Form of A Note
A-2 Form of B Note
A-3 Form of Swing Line Note
SCHEDULES
3.1 States of Incorporation and Qualification, and Capitalization and
Ownership of Stock of, Borrower
3.2 Consents, Waivers, Approvals; Violation of Agreements
3.5 Permitted Security Interests, Liens and Encumbrances
3.6 Judgments, Actions, Proceedings
3.7 Compliance with Laws, Regulations, Agreements
3.8 Burdensome Documents
3.13 Name Changes, Mergers, Acquisitions
3.15 Employee Grievances
3.17 Employee Benefit Plans
7.1 Permitted Indebtedness and Guaranties
7.13 Transactions with Affiliates
<PAGE>
EXHIBIT A-1
TO THIRD AMENDED AND RESTATED LOAN AGREEMENT
BY AND AMONG
NATIONAL CONSUMER COOPERATIVE BANK
AND
CERTAIN BANKS NAMED THEREIN
AND
FLEET BANK, N.A., AS AGENT FOR THE BANKS
FORM OF A NOTE
[A Commitment Amount] Due May 27, 2000
FOR VALUE RECEIVED, NATIONAL CONSUMER COOPERATIVE BANK D/B/A NATIONAL
COOPERATIVE BANK, (the "Borrower"), hereby promises to pay to the order of
[ ] (the "Bank") by payment to the Agent for the account of the Bank
the principal sum of [amount of A Commitment] ($__________) Dollars (or such
lesser amount as shall equal the aggregate unpaid principal amount of the A
Loans made by the Bank under the Loan Agreement hereinafter defined, shown on
the schedule annexed hereto and any continuation thereof), in lawful money of
the United States of America and in immediately available funds on the date or
dates determined as provided in the Loan Agreement but in no event later than
May 27, 2000.
The Borrower further promise to pay to the order of the Bank by payment
to the Agent for the account of the Bank interest on the unpaid principal
amount of each Loan from the date such Loan is made until paid in full,
payable at such rates and at such times as provided for in the Loan Agreement.
The Bank has been authorized by the Borrower to record on the schedules
annexed to this A Note (or on any continuation thereof) the amount, type, due
date and interest rate of each A Loan made by the Bank under the Loan
Agreement and the amount of each payment or prepayment of principal and the
amount of each payment of interest of each such A Loan received by the Bank,
it being understood, however, that failure to make any such notation shall not
affect the rights of the Bank or the obligations of the Borrower hereunder or
under the Loan Agreement in respect of such Loans. Such notations shall be
deemed correct, absent manifest error.
This A Note is one of the Notes referred to in the Third Amended and
Restated Loan Agreement (the "Loan Agreement") dated as of May 28, 1997, among
the Borrower, the Banks and Fleet Bank, N.A., as Agent for the Banks and
evidences the A Loans made by the Bank thereunder. This A Note supersedes the
Third Substituted A Note dated May 30, 1996 made by the Borrower to the order
of the Bank in the original principal amount of $ but does not
constitute a novation, extinguishment or termination of the obligations
evidenced thereby. Capitalized terms used in this Note have the respective
meanings assigned to them in the Loan Agreement.
Upon the occurrence of an Event of Default, under the Loan Agreement,
the principal hereof and accrued interest hereon shall become, or may be
declared to be, forthwith due and payable in the manner, upon the conditions
and with the effect provided in the Loan Agreement.
The Borrower may at its option prepay all or any part of the principal
of this A Note before maturity upon and subject to the terms provided in the
Loan Agreement.
The Borrower agrees to pay costs of collection and reasonable attorneys'
fees in case default occurs in the payment of this A Note.
Presentment for payment, notice of dishonor, protest and notice of
protest are hereby waived.
This A Note has been executed and delivered this 28th day
of May, 1997 in New York, New York, and shall be construed in accordance with
and governed by the internal laws of the State of New York.
NATIONAL CONSUMER COOPERATIVE BANK
D/B/A NATIONAL COOPERATIVE BANK
By:________________________________
Name:
Title:
<PAGE>
SCHEDULE TO A NOTE
MADE BY NATIONAL CONSUMER COOPERATIVE BANK
IN FAVOR OF _____________________
This Note evidences the Loans made under the within described Agreement,
in the principal amounts, of the types (Prime Rate Loans or LIBOR Loans) and
on the dates set forth below, subject to the payments or prepayments set forth
below:
<TABLE>
Prin. Int. Amt. of
<S> <C> <C> <C> <C> <C> <C> <C>
Date Made Amt. of Type of Due Date Rate on Payment or Balance Notation
or Converted Loan Loan of Loan Loan Prepayment Outstanding made by
</TABLE>
EXHIBIT A-2
TO THIRD AMENDED AND RESTATED LOAN AGREEMENT
BY AND AMONG
NATIONAL CONSUMER COOPERATIVE BANK
AND
CERTAIN BANKS NAMED THEREIN
AND
FLEET BANK, N.A., AS AGENT FOR THE BANKS
FORM OF B NOTE
[B Commitment Amount] Due May 27, 1998
FOR VALUE RECEIVED, NATIONAL CONSUMER COOPERATIVE BANK D/B/A NATIONAL
COOPERATIVE BANK (the "Borrower"), hereby promises to pay to the order of
[ ] (the "Bank") by payment to the Agent for the account of the Bank
the principal sum of [amount of B Commitment] ($__________) Dollars (or such
lesser amount as shall equal the aggregate unpaid principal amount of the B
Loans made by the Bank under the Loan Agreement hereinafter defined, shown on
the schedule annexed hereto and any continuation thereof), in lawful money of
the United States of America and in immediately available funds on the date or
dates determined as provided in the Loan Agreement but in no event later than
May 27, 1998.
The Borrower further promises to pay to the order of the Bank by payment
to the Agent for the account of the Bank interest on the unpaid principal
amount of each Loan from the date such Loan is made until paid in full,
payable at such rates and at such times as provided for in the Loan Agreement.
The Bank has been authorized by the Borrower to record on the schedules
annexed to this B Note (or on any continuation thereof) the amount, type, due
date and interest rate of each B Loan made by the Bank under the Loan
Agreement and the amount of each payment or prepayment of principal and the
amount of each payment of interest of each such B Loan received by the Bank,
it being understood, however, that failure to make any such notation shall not
affect the rights of the Bank or the obligations of the Borrower hereunder or
under the Loan Agreement in respect of such Loans. Such notations shall be
deemed correct, absent manifest error.
This B Note is one of the Notes referred to in the Third Amended and
Restated Loan Agreement (the "Loan Agreement") dated as of May 28, 1997 among
the Borrower, the Banks, and Fleet Bank, N.A., as Agent for the Banks and
evidences the B Loans made by the Bank thereunder. This B Note supersedes the
Third Substituted B Note dated May 30, 1996 made by the Borrower to the order
of the Bank in the original principal amount of $ but does not
constitute a novation, extinguishment or termination of the obligations
evidenced thereby. Capitalized terms used in this Note have the respective
meanings assigned to them in the Loan Agreement.
Upon the occurrence of an Event of Default, under the Loan Agreement,
the principal hereof and accrued interest hereon shall become, or may be
declared to be, forthwith due and payable in the manner, upon the conditions
and with the effect provided in the Loan Agreement.
The Borrower may at its option prepay all or any part of the principal
of this B Note before maturity upon and subject to the terms provided in the
Loan Agreement.
The Borrower agrees to pay costs of collection and reasonable attorneys'
fees in case default occurs in the payment of this B Note.
Presentment for payment, notice of dishonor, protest and notice of
protest are hereby waived.
This B Note has been executed and delivered this 28th day of May, 1997
in New York, New York, and shall be construed in accordance with and governed
by the laws of the State of New York.
NATIONAL CONSUMER COOPERATIVE BANK
D/B/A NATIONAL COOPERATIVE BANK
By:________________________________
Name:
Title:
<PAGE>
SCHEDULE TO B NOTE
MADE BY NATIONAL CONSUMER COOPERATIVE BANK
IN FAVOR OF _____________________
This Note evidences the Loans made under the within described Agreement,
in the principal amounts, of the types (Prime Rate Loans or LIBOR Loans) and
on the dates set forth below, subject to the payments or prepayments set forth
below:
<TABLE>
Prin. Int. Amt. of
<S> <C> <C> <C> <C> <C> <C> <C>
Date Mode Amt. of Type of Due Date Rate on Payment or Balance Notation
or Converted Loan Loan of Loan Loan Prepayment Outstanding made by
</TABLE>
EXHIBIT A-3
TO THIRD AMENDED AND RESTATED LOAN AGREEMENT
BY AND AMONG
NATIONAL CONSUMER COOPERATIVE BANK
AND
CERTAIN BANKS NAMED THEREIN
AND
FLEET BANK, N.A., AS AGENT FOR THE BANKS
FORM OF SWING LINE NOTE
$20,000,000 Due May 27, 1998
FOR VALUE RECEIVED, NATIONAL CONSUMER COOPERATIVE BANK D/B/A NATIONAL
COOPERATIVE BANK (the "Borrower"), hereby promises to pay to the order of
FLEET BANK, N.A. (the "Bank") by payment to the Bank the principal sum of
TWENTY MILLION DOLLARS ($20,000,000) (or such lesser amount as shall equal the
aggregate unpaid principal amount of the Swing Line Loans made by the Bank
under the Loan Agreement hereinafter defined, shown on the schedule annexed
hereto and any continuation thereof), in lawful money of the United States of
America and in immediately available funds on the date or dates determined as
provided in the Loan Agreement but in no event later than May 27, 1998.
The Borrower further promises to pay to the order of the Bank by payment
to the Bank interest on the unpaid principal amount of each Swing Line Loan
from the date such Swing Line Loan is made until paid in full, payable at such
rates and at such times as provided for in the Loan Agreement.
The Bank has been authorized by the Borrower to record on the schedules
annexed to this Swing Line Note (or on any continuation thereof) the amount,
due date and interest rate of each Swing Line Loan made by the Bank under the
Loan Agreement and the amount of each payment of principal and the amount of
each payment of interest of each such Swing Line Loan received by the Bank, it
being understood, however, that failure to make any such notation shall not
affect the rights of the Bank or the obligations of the Borrower hereunder or
under the Loan Agreement in respect of such Swing Line Loans. Such notations
shall be deemed correct, absent manifest error.
This Swing Line Note is the Swing Line Note referred to in the Third
Amended and Restated Loan Agreement (the "Loan Agreement") dated as of May 28,
1997 among the Borrower, the Banks and Fleet Bank, N.A., as Agent for the
Banks and evidences the Swing Line Loans made by the Bank thereunder.
Capitalized terms used in this Swing Line Note have the respective meanings
assigned to them in the Loan Agreement.
Upon the occurrence of an Event of Default, under the Loan Agreement,
the principal hereof and accrued interest hereon shall become, or may be
declared to be, forthwith due and payable in the manner, upon the conditions
and with the effect provided in the Loan Agreement.
The Borrower agrees to pay costs of collection and reasonable attorneys'
fees in case default occurs in the payment of this Swing Line Note.
Presentment for payment, notice of dishonor, protest and notice of
protest are hereby waived.
This Swing Line Note has been executed and delivered this 28th day of
May, 1997 in New York, New York, and shall be construed in accordance with and
governed by the laws of the State of New York.
NATIONAL CONSUMER COOPERATIVE BANK
D/B/A NATIONAL COOPERATIVE BANK
By:________________________________
Name:
Title:
<PAGE>
SCHEDULE TO SWING LINE NOTE
MADE BY
NATIONAL CONSUMER COOPERATIVE BANK
IN FAVOR OF FLEET BANK, N.A.
This Swing Line Note evidences the Swing Line Loans made under the
within described Agreement, in the principal amounts, and on the dates set
forth below, subject to the payments set forth below:
Principal Int.
Amt. of Due Date Rate Amt. of Balance Notation
Date Made Loan of Loan Loan Loan Outstanding Made by
<PAGE>
SCHEDULE 3.1
TO THIRD AMENDED AND RESTATED LOAN AGREEMENT
BY AND AMONG
NATIONAL CONSUMER COOPERATIVE BANK
AND
CERTAIN BANKS NAMED THEREIN
AND
FLEET BANK, N.A., AS AGENT FOR THE BANKS
STATES OF INCORPORATION AND QUALIFICATION,
AND CAPITALIZATION AND OWNERSHIP OF STOCK
OF BORROWER AND SUBSIDIARIES.
None. Except:
Jurisdiction of
Name Incorporation Capitalization
National Consumer U.S. Congress Class B, C and D
Cooperative Bank, d/b/a 12 U.S.C. Section 3001-3051 shares in accordance
National Cooperative with 12 U.S.C.
Bank Section 3014
NCB Retail Finance Delware Authorized
Corporation Common: 1,000
Outstanding
Common: 1,000
NCB Mortgage Delware (Qualified in Authorized Class A
Corporation the District of Preferred: 1,000
Columbia, New York Outstanding Class A
Preferred: 955
Authorized Class B
Preferred: 100
Outstanding Class B
Preferred: 50
Authorized Class C
Preferred: 1,000
Outstanding Class C
Preferred: -0-
Authorized
Common: 10,000
Outstanding
Common: 10,000
NCB Financial Delware Authorized
Corporation Common: 1,000
Outstanding
Common: 1,000
NCB Savings Bank, FSB U.S. (Qualified in Authorized
Ohio Common: 1,000
Outstanding
Common: 1,000
Cooperative Funding Delware Authorized
Corporation Common: 1,000
Outstanding
Common: 1,000
NCB I, Inc. Delware Authorized
Common: 1,000
Outstanding
Common: 1,000
NCB Investment Delware (Qualified in Authorized
Advisers, Inc. Alaska and Minnesota) Common: 3,000
Outstanding
Common: 3,000
NCB Insurance Brokers, New York Authorized
Inc. Common: 1,000
Outstanding
Common: 100
SCHEDULE 3.2
TO THIRD AMENDED AND RESTATED LOAN AGREEMENT
BY AND AMONG
NATIONAL CONSUMER COOPERATIVE BANK
AND
CERTAIN BANKS NAMED THEREIN
AND
FLEET BANK, N.A., AS AGENT FOR THE BANKS
CONSENTS, WAIVERS, APPROVALS,
VIOLATIONS OF AGREEMENTS
NONE
<PAGE>
SCHEDULE 3.5
TO THIRD AMENDED AND RESTATED LOAN AGREEMENT
BY AND AMONG
NATIONAL CONSUMER COOPERATIVE BANK
AND
CERTAIN BANKS NAMED THEREIN
AND
FLEET BANK, N.A., AS AGENT FOR THE BANKS
PERMITTED SECURITY INTERESTS,
LIENS AND ENCUMBRANCES
NCB Savings Bank, FSB, ("NCBSB") has under pledge to the Federal Home Loan
Bank of Cincinnati (FHLBC) its mortgage loan portfolio under a Blanket
Agreement for Advances and Security Agreement which allows a blanket lien to
secure borrowings from FHLBC. As of April 30, 1997, there are no FHLBC
outstanding advances to NCBSB.
The Borrower extends lines of credit to NCB Mortgage, secured by all assets of
NCB Mortgage pursuant to certain Business Loan/Security Agreements.
The Borrower and NCB Mortgage sell mortgage loans, ESOP loans and other loans
from its portfolio in the ordinary course of business, structured either as an
Asset Securitization or a sale of whole loans. The SPV or other purchaser
typically provides for an alternative security interest and files a financing
statement covering such loans in order to protect itself against a subsequent
determination that such sale was not a sale but rather a loan.
<PAGE>
SCHEDULE 3.6
TO THIRD AMENDED AND RESTATED LOAN AGREEMENT
BY AND AMONG
NATIONAL CONSUMER COOPERATIVE BANK
AND
CERTAIN BANKS NAMED THEREIN
AND
FLEET BANK, N.A., AS AGENT FOR THE BANKS
Pending Actions:
None.
Probable Claims:
None.
<PAGE>
SCHEDULE 3.7
TO THIRD AMENDED AND RESTATED LOAN AGREEMENT
BY AND AMONG
NATIONAL CONSUMER COOPERATIVE BANK
AND
CERTAIN BANKS NAMED THEREIN
AND
FLEET BANK, N.A., AS AGENT FOR THE BANKS
COMPLIANCE WITH LAWS, REGULATIONS AND AGREEMENTS
NONE
<PAGE>
SCHEDULE 3.8
TO THIRD AMENDED AND RESTATED LOAN AGREEMENT
BY AND AMONG
NATIONAL CONSUMER COOPERATIVE BANK
AND
CERTAIN BANKS NAMED THEREIN
AND
FLEET BANK, N.A., AS AGENT FOR THE BANKS
BURDENSOME DOCUMENTS
NONE
<PAGE>
SCHEDULE 3.13
TO THIRD AMENDED AND RESTATED LOAN AGREEMENT
BY AND AMONG
NATIONAL CONSUMER COOPERATIVE BANK
AND
CERTAIN BANKS NAMED THEREIN
AND
FLEET BANK, N.A., AS AGENT FOR THE BANKS
NAME CHANGES, MERGERS, ACQUISITIONS
1. In September, 1988, NCB Savings Association was the surviving entity
upon consummation of a merger with Anchor Savings Association. On or
about December 7, 1991, it converted from an Ohio to a federal savings
bank charter and changed its name to NCB Savings Bank, FSB.
2. In September, 1991, NCB Capital Markets, Inc., changed its name to
Cooperative Funding Corporation.
3. On December 15, 1993, a Certificate of Dissolution filed with the
Secretary of State of Delaware in respect of NCB Capital Corporation
became effective in accordance with Section 103 of the Delaware General
Corporation Law and NCB Capital Corporation was, on such date, dissolved
in accordance with Section 275 of the Delaware General Corporation Law,
and the Borrower, as the sole stockholder of NCB Capital Corporation by
resolution duly adopted and by agreement, succeeded to and expressly
assumed all of NCB Capital Corporation's assets, obligations and
liabilities.
4. On December 29, 1995, a Certificate of Dissolution filed with the
Secretary of State of Delaware in respect of NCB Business Credit
Corporation became effective in accordance with Section 103 of the
Delaware General Corporation Law and NCB Business Credit Corporation
was, on such date, dissolved in accordance with Section 275 of the
Delaware General Corporation Law, and the Borrower, as the sole
stockholder of NCB Business Credit Corporation by resolution duly
adopted and by agreement, succeeded to and expressly assumed all of NCB
Business Credit Corporation's assets, obligations and liabilities.
5. The Board of Directors of NCB Mortgage Corporation has approved an
amendment to its Certificate of Incorporation to change its name to NCB
Capital Corporation in order better to reflect the scope of its
operations, and the Board of Directors of the Borrower has approved such
name. The name will be changed when the management of the Borrower and
NCB Mortgage Corporation have completed any necessary or appropriate
notices and other procedures.
<PAGE>
SCHEDULE 3.15
TO THIRD AMENDED AND RESTATED LOAN AGREEMENT
BY AND AMONG
NATIONAL CONSUMER COOPERATIVE BANK
AND
CERTAIN BANKS NAMED THEREIN
AND
FLEET BANK, N.A., AS AGENT FOR THE BANKS
EMPLOYEE GRIEVANCES
NONE
<PAGE>
SCHEDULE 3.17
TO THIRD AMENDED AND RESTATED LOAN AGREEMENT
BY AND AMONG
NATIONAL CONSUMER COOPERATIVE BANK
AND
CERTAIN BANKS NAMED THEREIN
AND
FLEET BANK, N.A., AS AGENT FOR THE BANKS
EMPLOYEE BENEFIT PLANS
Benefit Plans: The Borrower maintains a defined contribution retirement plan
which covers substantially all its employees, after one year of eligibility.
Under the plan, the Borrower makes an annual contribution of six percent of the
compensation (up to $200,000 and not including overtime or bonuses) of plan
participants. The contribution is non-integrated. Participants' rights in the
plan vest over six years.
The Borrower also maintains an employee thrift plan pursuant to
Section 401(k) of the Internal Revenue Code in which all employees are eligible
to participate. Under the plan, the Borrower will match employee contributions
to the plan up to six percent of net compensation. Participants' rights in the
plan vest upon contribution.
<PAGE>
SCHEDULE 7.1
TO THIRD AMENDED AND RESTATED LOAN AGREEMENT
BY AND AMONG
NATIONAL CONSUMER COOPERATIVE BANK
AND
CERTAIN BANKS NAMED THEREIN
AND
FLEET BANK, N.A., AS AGENT FOR THE BANKS
PERMITTED INDEBTEDNESS AND GUARANTIES
1. Indebtedness of NCB Mortgage to the Borrower.
2. The Borrower may enter into an amendment of its Financing
Agreement with the U.S. Treasury Department providing for a
prepayment of the Class A Notes in 2010 and 2015 with the proceeds
of a substantially simultaneous issue of equity or subordinated
debt, all pursuant to the terms of a certain Memorandum of
Agreement by and between the Borrower and the U.S. Treasury
Department (substantially in the form of Exhibit 1 annexed to
Amendment No. 3 to Second Amended and Restated Loan Agreement
dated as of May 30, 1996, which is referred to in Recital (A),
clause (iii) of this Third Amended and Restated Loan
Agreement).
<PAGE>
SCHEDULE 7.13
TO THIRD AMENDED AND RESTATED LOAN AGREEMENT
BY AND AMONG
NATIONAL CONSUMER COOPERATIVE BANK
AND
CERTAIN BANKS NAMED THEREIN
AND
FLEET BANK, N.A., AS AGENT FOR THE BANKS
TRANSACTIONS WITH AFFILIATES
1. Annual charitable contributions by the Borrower to Development
Corp.
2. Development Corp. has requested that the Borrower provide it with
an unsecured line of credit of up to $10,000,000 on terms and
conditions that would constitute an arms-length transaction.
