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 March 31, 1998 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 March 31, 1998
Class C 219,044
(Common stock, $100.00 par value)
Class B 840,045
(Common stock, $100.00 par value)
Class D 3
(Common stock, $100.00 par value)
National Consumer Cooperative Bank
(doing business as National Cooperative Bank)
and Subsidiaries
INDEX
PART I FINANCIAL INFORMATION Page No.
Item 1 Consolidated balance sheets - March 31,
1998 and December 31, 1997 ............ 3
Consolidated statements of income - for
the three months ended March 31, 1998
and 1997............................... 4
Consolidated statements of cash flows -
for the three months ended March 31,
1998 and 1997........................... 5-6
Condensed notes to the consolidated
financial statements - March 31,
1998.................................... 7-10
Item 2 Management's discussion and analysis
of financial condition and results of
operations - for the three months
ended March 31, 1998 and 1997........... 11-18
PART II OTHER INFORMATION
Item 4 Submission of Matters to a Vote of
Security Holders.................... 19
Item 6 Exhibits ........................... 20
Exhibit 10.2 - Term Loan Agreement with
Credit Suisse First Boston
Exhibit 10.11 - Fleet Loan Agreement
Exhibit 27 - Financial Data Schedule
<PAGE>
NATIONAL COOPERATIVE BANK
CONSOLIDATED BALANCE SHEETS
March 31, 1998 and December 31, 1997
(Unaudited)
March 31, December 31,
1998 1997
Assets
Cash and cash equivalents $ 28,422,662 $ 21,689,245
Restricted cash 5,906,793 6,884,572
Investment securities
Available-for-sale 58,547,126 61,268,440
Held-to-maturity 1,942,312 1,942,312
Loans and lease financing 591,606,436 584,635,993
Loans held for sale 166,631,453 189,132,330
Less: Allowance for loan losses (18,049,461) (17,638,136)
740,188,428 756,130,187
Other assets 26,198,411 21,389,059
Total assets $861,205,732 $869,303,815
Liabilities and Members' Equity
Liabilities
Deposits $ 90,542,835 $ 83,825,979
Patronage dividends payable in cash 8,272,225 5,872,708
Other liabilities 17,189,083 17,072,271
Borrowings
Short-term 195,664,384 243,120,607
Long-term 231,608,473 204,793,392
427,272,857 447,913,999
Subordinated debt 182,767,532 182,785,385
Total borrowings 610,040,389 630,699,384
Total liabilities 726,044,532 737,470,342
Members' equity
Common stock
Class B 84,004,502 84,004,502
Class C 21,904,447 21,904,447
Class D 300 300
Retained earnings
Allocated 11,042,674 8,109,931
Unallocated 17,640,959 17,474,132
Unrealized gain on investment
securities available-for-sale 568,318 340,161
Total members' equity 135,161,200 131,833,473
Total liabilities and members'
equity $861,205,732 $869,303,815
<PAGE>
NATIONAL COOPERATIVE BANK
CONSOLIDATED STATEMENTS OF INCOME
(Unaudited)
For the three months ended March 31, 1998 1997
Interest Income
Loans and lease financing $15,861,896 $15,371,167
Investment securities 1,514,742 1,534,833
Total interest income 17,376,638 16,906,000
Interest expense
Deposits 991,322 1,032,953
Short-term borrowings 3,121,688 2,890,864
Long-term debt, other borrowings
and subordinated debt 6,410,586 6,272,295
Total interest expense 10,523,596 10,196,112
Net interest income 6,853,042 6,709,888
Provision for loan losses 352,879 702,000
Net interest income after
provision for loan losses 6,500,163 6,007,888
Non-interest income
Gain on sale of loans 3,630,122 1,408,427
Loan and deposit servicing fees 613,965 555,196
Other 1,279,344 1,105,377
Total non-interest income 5,523,431 3,069,000
Non-interest expenses
Compensation and employee benefits 3,819,023 2,692,071
Contractual services 916,980 843,219
Occupancy and equipment 949,031 951,408
Contribution to NCB
Development Corporation - 125,000
Other 537,091 479,691
Total non-interest expenses 6,222,125 5,091,389
Income before income taxes 5,801,469 3,985,499
Provision for income taxes 292,533 337,147
Net income $ 5,508,936 $ 3,648,352
Distribution of net income
Patronage dividends $ 5,508,936 $ 3,648,352
Retained earnings - -
$ 5,508,936 $ 3,648,352
<PAGE>
NATIONAL COOPERATIVE BANK
CONSOLIDATED STATEMENTS OF CASH FLOWS
(Unaudited)
For the three months ended March 31, 1998 1997
Cash flows from operating activities
Net income $ 5,508,936 $ 3,648,352
Adjustments to reconcile net income
to net cash
Provision for loan losses 352,879 702,000
Depreciation and amortization 1,142,583 1,400,901
Gain on sale of loans (3,630,122) (1,408,427)
Loans originated for sale (161,136,167) (30,851,790)
Proceeds from sale of loans held
for sale 183,960,431 97,016,540
Increase in other assets (1,840,592) (4,868,065)
Increase in other liabilities 116,812 7,351,569
Net cash provided by operating
activities 24,474,760 72,991,080
Cash flows from investing activities
Redemption of restricted cash 1,003,495 -
Proceeds from maturities of
investment securities
Available-for-sale 1,920,357 237,132
Net increases in loans and lease
financing (14,882,227) (19,953,074)
Proceeds from sale of portfolio
loans 8,156,399 -
Net cash used in investing
activities (3,801,976) (19,715,942)
Cash flows from financing activities
Net increase (decrease) in deposits 6,716,856 (3,796,937)
Net decrease in short-term borrowing (47,456,223) (67,500,000)
Proceeds from issuance of long-term
debt 34,800,000 25,000,000
Repayment on long-term debt (8,000,000) -
Net cash used in financing
activities (13,939,367) (46,296,937)
Increase in cash and cash equivalents 6,733,417 6,978,201
Cash and cash equivalents, beginning
of year 21,689,245 17,150,534
Cash and cash equivalents, end of
period $ 28,422,662 $ 24,128,735
<PAGE>
NATIONAL COOPERATIVE BANK
CONSOLIDATED STATEMENTS OF CASH FLOWS
(Unaudited)
Supplemental schedule of investing and financing activities:
For the three months ended March 31, 1998 1997
Unrealized gain on investment
available-for-sale $ 228,157 $ 157,486
Interest paid $ 8,389,843 $ 6,731,637
Income taxes paid $ 300,000 $ 135,339
<PAGE>
NATIONAL COOPERATIVE BANK
CONDENSED NOTES TO THE CONSOLIDATED
FINANCIAL STATEMENTS
March 31, 1998
(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 reclassifications have been made to the prior-period
amounts to conform with the current year's presentation.
1. Cash, Cash Equivalents and Investment Securities
As of March 31, 1998, NCB's portfolios of investment securities,
cash and cash equivalents had an average adjusted maturity of 1,582
days with interest rates in those portfolios varying from 5.00% to
8.00%.
Cash and Investments Investments
Cash Available- Held-to-
Equivalents for-Sale Maturity
Cash $ 1,647,997 $ - $ -
Federal funds 12,027,512 - -
Money market
securities 11,344,972 668,282 -
Mutual funds 3,402,181 1,465,685 -
Mortgage-backed
securities - 5,084 1,942,312
Corporate bonds - 11,707,364 -
U.S. Treasury and Agency
obligations - 16,771,691 -
Interest-only
receivables - 27,929,020 -
$28,422,662 $58,547,126 $1,942,312
At March 31, 1998, the investments in the available-for-sale
portfolio were recorded at aggregate fair value. Restricted cash
of $5,906,793 is held by a trustee for the benefit of certificate
holders in the event of loss on certain loans sold of $50,493,942
and $60,320,747 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. On March 25, 1998, $1,003,495
was received as a reduction of the restricted cash account due to
loan repayments.
Interest-only receivables substantially pertain to blanket
loans to cooperative housing corporations.
2. Loans and Lease Financing
Loans and leases outstanding by category at March 31, 1998
were:
Commercial loans $353,133,501
Lease financing 32,080,215
Real estate loans
Residential 366,063,972
Commercial 6,960,201
$758,237,889
At March 31, 1998 and December 31, 1997 loans held for resale
were $166.6 million and $189.1 million, respectively.
3. Impaired Assets
Loans that were impaired at March 31, 1998 and 1997 totalled
$6,759,360 and $3,773,980, respectively. The 1998 impaired loans
are comprised of nonaccrual loans and a restructured loan totalling
$5,737,676 and $1,021,684, respectively. The 1997 impaired loans
are comprised of nonaccrual loans and a restructured loan totaling
$2,731,394 and $1,042,586, respectively. A specific allowance of
$1,334,000 and $1,271,000 has been set aside for these loans at
March 31, 1998 and 1997, respectively, as management's best
estimate of their fair value is less than the recorded investment
in the loans. During 1998 and 1997, the interest collected on the
nonaccrual loans was applied to reduce the outstanding principal.
Interest earned on the restructured loans totaled $23,710 and
$24,186 during the first three months ended March 31, 1998 and
1997, respectively.
At March 31, 1998, there were no commitments to lend additional
funds to borrowers whose loans are impaired.
At March 31, 1998 and 1997, NCB had real estate acquired through
foreclosure of $5,068,389 and $376,708, 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 three months ended March 31, 1998:
Balance at January 1, 1998 $17,638,136
Provision for loan losses 352,879
Charge-offs (7,210)
Recoveries of loans previously
charged-off 65,656
Balance at March 31, 1998 $18,049,461
The allowance for loan losses as a percentage of average loans
and lease financing at March 31, 1998 was 2.5%.
5. Statement of Comprehensive Income
The following is a statement of comprehensive income for the
three months ended March 31, 1998:
Net income $5,508,936
Other comprehensive income,net of tax:
Unrealized gains on securities:
Unrealized holding gains arising
during period 228,157
Comprehensive income $5,737,093
<PAGE>
6. Statement of Changes in Members' Equity
The following is a summary of the activity in members' equity for the
three months ended March 31 1998:
<TABLE>
Retained Retained Total
Common Earnings Earnings Unrealized Members'
Stock Allocated Unallocated Gain(Loss) Equity
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Balance, December 31, 1997 $105,909,249 $ 8,109,931 $17,474,132 $ 340,161 $131,833,473
Net income - - 5,508,936 - 5,508,936
1998 patronage dividends
to be distributed in cash - - (2,409,366) - (2,409,366)
Retained in form of equity - 2,932,743 (2,932,743) - 0
Unrealized gain on investment
securities available-for-
sale - - - 228,157 228,157
Balance, March 31, 1998 $105,909,249 $11,042,674 $17,640,959 $ 568,318 $135,161,200
</TABLE>
<PAGE>
NATIONAL COOPERATIVE BANK
MANAGEMENT'S DISCUSSION AND ANALYSIS
FOR THE THREE MONTHS ENDED MARCH 31, 1998 AND 1997
SUMMARY
NCB's net income for the three months ended March 31, 1998 was
$5.5 million. This was a 51% or $1.9 million increase compared
with $3.6 million for the three months ended March 31, 1997. The
variance resulted from an 80% or $2.5 million increase in non-
interest income and a decrease in the provision for loan losses of
49.7% or $349 thousand which was offset by an increase in non-
interest expenses of 22.2% or $1.1 million.
Total assets were $861.2 million at March 31, 1998, down .9% or
$8.1 million from $869.3 million at December 31, 1997. This
resulted primarily from a decrease in net loans receivable of $15.9
million.
The annualized return on average total assets was 2.53% for the
three months of 1998 compared with 1.78% for the same period in
1997. The annualized return on average equity for the period ended
March 31, 1998 and 1997 was 16.44% and 11.49%, respectively.
NET INTEREST INCOME
Net interest income for the first three months of 1998 increased
2.1% or $143 thousand over the same period a year ago. As shown on
Table 1, the net interest spread increased 3 basis points to 2.35%
from 2.32% for the three months ended March 31, 1997 while net
interest yield on interest earning assets was 3.29% and 3.32% for
the three months ended March 31, 1998 and 1997, respectively. The
yield on average loans and leases increased 9 basis points while
the yield on investment securities and cash equivalents went down
80 basis points.
For the three months ending March 31, 1998, interest income
increased 2.8% or $471 thousand to $17.4 million from $16.9 million
of the prior year's quarter. As shown on Table 2, the increase was
due to increased volume of real estate loans (most of which were
held for sale) and higher average yield on the commercial loan and
lease portfolio.
Interest expense increased $328 thousand to $10.5 million for the
three months ended March 31, 1998 compared with $10.2 million for
the three months ended March 31, 1997. The increased interest
expense is largely a result of a higher volume of notes payable
required to fund loan volume. The average rate on interest-bearing
liabilities decreased to 5.98% compared with 6.05% in the same
period in 1997. As shown on Table 2, a $1.9 million increase in
interest expense was volume related while a $1.6 million decrease
was due to interest rates.
NON-INTEREST INCOME
Non-interest income for the three months ended March 31, 1998 of
$5.5 million increased 80% or $2.5 million from $3.1 million for
the same period last year. Non-interest income is composed of
gains from sales of blanket mortgages and share loans to secondary
market investors, servicing fees, origination fees, and advisory
fees. The majority of the increase resulted from increased gains
on assets sales. Assets sold totalled $183.6 million during the
first quarter of 1998 compared with $75 million during the first
quarter of 1997.
Gains recorded on the sale of blanket mortgages were $3.6 million
for the three months ended March 31, 1998 compared with $1.4
million. Other types of non-interest income - commercial loan
fees, servicing fee income and other fees - increased by 14% or
$232.7 thousand to $1.9 million compared with $1.7 million for the
three months ended March 31, 1997.
No material changes in NCB's risk profile occurred from December
31, 1997 to March 31, 1998; therefore no disclosure is necessary.
NON-INTEREST EXPENSES
Non-interest expenses for the three months ended March 31, 1998
increased 22.2% or $1.1 million to $6.2 million compared with $5.1
million for the three months ended March 31, 1997. Compensation and
benefits, the largest component of non-interest expenses, increased
41.9% or $1.1 million due to higher employee base at the start of
1998 and also to higher bonus accruals for the current period
compared with 1997. Contractual services, occupancy and equipment,
and other expenses increased .2% or $3.8 thousand.
Excluding the voluntary contributions to NCB Development
Corporation, which was zero during the first quarter of 1998, non-
interest expenses as a percentage of average assets were 2.9% for
the three months ended March 31, 1998 compared with 2.4% for the
same period a year ago.
<PAGE>
Table 1
Rate Related Assets and Liabilities
(dollars in thousands)
Three Months Ended March 31,
1998 1997
ASSETS Average Income/ Yields/ Average Income/ Yields/
Balance Expense Rates Balance Expense Rates
Interest earning
assets
Real estate loans $390,976 $ 8,087 8.27% $362,049 $ 7,791 8.61%
Commercial loans
and leases 341,225 7,775 9.11% 354,643 7,580 8.55%
Total loans and
leases 732,201 15,862 8.67% 716,692 15,371 8.58%
Investment securities
and cash equivalents 102,181 1,515 5.93% 91,285 1,535 6.73%
Total interest earning
assets 834,382 17,377 8.33% 807,977 16,906 8.37%
Allowance for loan
losses (17,837) (15,776)
Non-interest earning assets
Cash 3,654 4,079
Other assets 49,602 25,807
Total non-interest
earning assets 53,256 29,886
Total assets $869,801 $822,087
LIABILITIES AND MEMBERS' EQUITY
Interest bearing liabilities
Subordinated debt $182,542 $ 2,680 5.87% $182,542 $ 2,547 5.58%
Notes payable 430,261 6,853 6.37% 404,776 6,616 6.54%
Deposits 91,012 991 4.36% 87,222 1,033 4.74%
Total interest bearing
liabilities 703,815 10,524 5.98% 674,540 10,196 6.05%
Other liabilities 31,944 20,576
Members' equity 134,042 126,971
Total liabilities and
members' equity $869,801 $822,087
Net interest earning
assets $130,567 $133,437
Net interest revenues
and spread $ 6,853 2.35% $ 6,710 2.32%
Net yield on interest
earning assets 3.29% 3.32%
<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
three months ended March 31, 1998 was $293 thousand compared with
the prior year's provision of $337 thousand.
CASH, CASH EQUIVALENTS AND INVESTMENT SECURITIES
Cash, cash equivalents and investment securities totalling $88.9
million at March 31, 1998 increased $4.0 million or 4.7% from $84.9
million at year-end 1997 due to repayments on loans and outstanding
lines of credit received at the end of March. As a percentage of
earning assets, cash, cash equivalents and investment securities
increased to 10.4% at March 31, 1998 from 9.8% at December 31,
1997.
ALLOWANCE FOR LOAN LOSSES
The allowance for loan losses at March 31, 1998 increased 2.3% to
$18.0 million from $17.6 million at December 31, 1997. The
allowance during the period was impacted by recoveries of loans
previously charged-off of $65.7 thousand, new charged-offs of $7
thousand and the provision of $353 thousand. Overall, loan
portfolio quality remained both strong and stable at the end of the
first quarters of 1998 and 1997. NCB's provision for loan losses
as a percentage of average loans and leases outstanding was .2% and
.4% for the quarters ended March 31, 1998 and 1997, respectively.
The loan loss allowance as a percentage of average loans and
leases increased from 2.3% at December 31, 1997 to 2.5% at March
31, 1998. Management considers the current allowance to be adequate
to absorb known and inherent risks in the loan portfolio.
As shown in Table 3, total impaired assets (restructured, non-
accruing loans and real estate owned) increased 29% from $9.2
million at December 31, 1997 to $11.8 million at March 31, 1998.
Impaired assets as a percentage of loans and leases outstanding
plus real estate owned increased to 1.5% at March 31, 1998 compared
with 1.2% at year-end 1997. The allowance for loan losses as a
percentage of impaired assets decreased to 152.6% at March 31, 1998
from 192.2% at December 31, 1997.
Table 2
Changes in Net Interest Income
(dollars in thousands)
For the three months ended March 31, 1998 compared to 1997
Increase (decrease) due to change in:
Average Average
Volume* Yield Net**
Interest income
Cash equivalents and
investment securities $ 172 $ (192) $ (20)
Commercial loans and leases (293) 488 195
Real estate loans 606 (310) 296
Total interest income 485 (14) 471
Interest expense
Deposits 44 (85) (41)
Notes payable 1,924 (1,687) 237
Subordinated debt 0 132 132
Total interest expense 1,968 (1,640) 328
Net interest income $(1,483) $ 1,626 $ 143
* 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 3
Impaired assets
(dollars in thousands)
March 31, Dec. 31, Sept. 30, June 30, March 31,
1998 1997 1997 1997 1997
Real estate owned $5,068 $5,114 $5,545 $ 208 $ 377
Non-accruing $5,738 $3,030 $3,801 $5,557 $2,731
Restructured $1,022 $1,027 $1,032 $1,039 $1,043
<PAGE>
INTEREST BEARING LIABILITIES
Interest Bearing liabilities
(dollars in thousands)
3/31/98 12/31/97 % Change
Deposits $ 90,543 $ 83,826 8.0%
Short-term debt 195,664 243,121 (19.5%)
Long-term debt 231,608 204,793 13.1%
Subordinated debt 182,768 182,785 0.0%
Total $700,583 $714,525 (2.0%)
Interest bearing liabilities decreased $13.9 million to $700.6
million at March 31, 1998 from $714.5 million at December 31, 1997.
For the first three months of 1998, deposits at NCB Saving Bank,
FSB grew 8% to $90.5 million compared with $83.8 million at
December 31, 1997. The growth was attributable to local and
national deposit accounts and deposits from cooperative customers.
Average maturity of the certificates of deposits is 11.1 months.
Funds generated by the increased deposit activity were used to
originate single-family loans and increase liquidity.
At March 31, 1998, short-term debt decreased 19.5% in comparison
to the prior year-end 1997 as a result of cash received from the
sale of loans which was used to payoff short-term borrowings. The
long-term debt increased 13.1% due to the issuance of an additional
$15 million under the medium-term note program and $20 million
under the other long-term facilities.
<PAGE>
Part II OTHER INFORMATION
Item 4. Submission of Matters to a Vote of Security Holders
NCB held its annual meeting on April 23, 1998. Shareholders
elected the following persons to serve as directors:
Joseph Cabral (re-elected)
Michael J. Mercer (re-elected)
Alex N. Miller
Alfred A. Plamann (re-elected)
The following directors continued in office after this meeting:
James L. Burns, Jr.
Kirby J. Erickson
Jackie Jenkins-Scott
Marilyn J. McQuiade
Mary Ann Rothman
Anthony J. Scallon
Shiela A. Smith
Peter C. Young
Thomas K. Zaucha<PAGE>
Item 6. Exhibits
(a) The following exhibits are filed as part of this report:
Exhibit 10.2 - Term Loan Agreement with Credit Suisse First
Boston
Exhibit 10.11 - Fleet Loan Agreement
Exhibit 27 - Financial Data Schedule
<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 there unto 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
TERM LOAN AGREEMENT
THIS TERM LOAN AGREEMENT (this "Agreement") is made and
entered into as of the 25th day of March, 1998, by and among
NATIONAL CONSUMER COOPERATIVE BANK, a banking corporation organized
under the laws of the United States that does business as the
National Cooperative Bank (hereinafter referred to as the
"Company"), GREENWICH FUNDING CORPORATION, a Delaware corporation
("GFC"), and CREDIT SUISSE FIRST BOSTON, a banking company organized
and existing under the laws of Switzerland, acting by and through
its New York Branch (hereinafter referred to as "CSFB").
IN CONSIDERATION of the mutual covenants and agreements
herein contained, the parties hereby agree as follows:
ARTICLE 1
DEFINITIONS AND ACCOUNTING TERMS
Section 1.1 Definitions. As used in this Agreement,
and unless the context requires a different meaning, the following
terms shall have the meanings indicated (such meanings to be, when
appropriate, equally applicable to both the singular and plural
forms of the terms defined):
"Affiliate" means, 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); providedthat,
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
director and officer of the Company shall be deemed to be an
Affiliate of the Company.
"Asset Securitization" means, 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 Company for Cash in an
amount equal to the Fair Market Value thereof; provided,
however, that the Company 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 subordinated interest in such receivables being sold.
"Asset Securitization Recourse Liability" means, 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 Securitization 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 Securitization.
"Authorized Officer" means any of the Chief Financial
Officer, the President, the Treasurer of the Company, and any
other officer duly authorized to execute this Agreement on
behalf of the Company.
"Base Rate" means for any day the higher of (1) the
base commercial lending rate announced from time to time by
Credit Suisse First Boston (New York Branch) as applicable at
the opening of business on such day, or (2) the rate quoted by
Credit Suisse First Boston (New York Branch) at approximately
11:00 a.m., New York City time, to dealers in the New York
Federal Funds Market for the overnight offering of dollars by
Credit Suisse First Boston (New York Branch) for deposit, plus
one-half of one per cent (1/2%).
"Business Day" means any day on which commercial
banks are open for business (and not required or authorized by
law to close) in New York, New York.
"Capitalized Lease" means 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 GAAP.
"Cash" means, as to any Person, such Person's cash
and cash equivalents, as defined in accordance with GAAP
consistently applied.
"Class A Notes" means the Class A notes issued by the
Company 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.
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 Company 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" means the series of Class B
stock comprising Class B stock purchased for cash after June
28, 1984.
"Code" means the Internal Revenue Code of 1986, as
amended.
"Consolidated Adjusted Net Income" means, for any
fiscal period of the Company, net earnings or net loss
(determined on a consolidated basis) of the Company 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 Company or any Subsidiary has an ownership interest
unless such net earnings shall have actually been received by
the Company 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 Company or any other Subsidiary; (ix) the
earnings of any Person to which assets of the Company shall
have been sold, transferred or disposed of, or into which the
Company shall have merged, prior to the date of such
transaction; (x) any gain arising from the acquisition of any
securities of the Company 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 means,
with respect to the Company and the Subsidiaries (determined
on a consolidated basis):
(a) the amount of capital stock liability plus
(or minus in the case of a deficit) the capital surplus
and earned surplus of the Company and the 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 Company and the 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) good will, 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
reappraisal, revaluation or write-up of capital
assets subsequent to December 31, 1991.
If the Company or any of the Subsidiaries shall have any
Investments outstanding at any time which are not permitted
under this Agreement, such Investments shall be excluded from
Consolidated Adjusted Net Worth.
"Consolidated Debt" means at any date of
determination thereof, the aggregate amount of all
Indebtedness of the Company and its Subsidiaries, plus,
without duplication, the aggregate amount of the obligations
of the Company and its Subsidiaries set forth below, at such
time:
(a) the principal amount of all recourse and
nonrecourse interest bearing obligations of the Company
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 Company 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 Company or any
Subsidiary (including, without limitation, certificates
of deposit issued by the Company or any Subsidiary);
(c) the face amount of all letters of credit
issued by the Company or any Subsidiary and all bankers'
acceptances accepted by the Company or any Subsidiary;
and
(d) the aggregate amount of Asset
Securitization Recourse Liabilities of the Company or
any Subsidiary.
"Consolidated Earnings Available for Fixed Charges"
means, for any period, 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 Company and its Subsidiaries during such period,
and (b) Consolidated Fixed Charges during such period, plus
(iii) contributions made by the Company 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" means, with respect to
the Company on a consolidated basis for any period, the sum
of: (i) all interest and all amortization of Indebtedness,
amortized discount and expense on all Indebtedness for
borrowed money of the Company and its Subsidiaries, plus (ii)
all Rentals payable during such period by the Company and its
Subsidiaries.
"Consolidated Net Earnings" means, for any period,
the net income or loss of the Company 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" means all unsecured
Indebtedness of the Company and its Subsidiaries on a
consolidated basis (i) for borrowed money (including the
Indebtedness hereunder, the Senior Notes, Indebtedness under
the Fleet Loan Agreement and all demand and term deposits made
by any Person with the Company 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 8.3 hereof, and (iii) Asset
Securitization Recourse Liabilities to the extent, but only to
the extent, that such obligations have matured.
"Controlled Group" means all members of a controlled
group of corporations and all trades or businesses (whether or
not incorporated) under common control which, together with
the Company, 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.
"Credit Agreement Related Claim" means any claim
(whether civil, criminal or administrative and whether
sounding in tort, contract or otherwise) in any way arising
out of, related to, or connected with, this Agreement, the
Note, or the relationship established hereunder or thereunder.
"Debt Instrument" is defined in Section 9.5 hereof.
"Default" means an event which with notice or lapse
of time or both would constitute an Event of Default.
"Default Rate" means the rate of interest applicable
under Section 3.3 from time to time.
"Development Corp." means NCB Development
Corporation, a District of Columbia non-profit corporation
established pursuant to 12 U.S.C. S 3051(b).
"Dollars", "U.S.$" and the sign "$" mean such coin or
currency of the United States of America as at the time shall
constitute legal tender for the payment of public and private
debts.
"Effective Date" means March 25, 1998.
"Eligible Cooperatives" has the meaning assigned to
such term in Section 3015 of Title 12 of the United States
Code.
"Eligible Derivatives" means derivative Securities
which are sold in the ordinary course of the business of the
Company and its Subsidiaries for the purpose of hedging or
otherwise managing portfolio risk.
"ERISA" means the Employee Retirement Income Security
Act of 1974, as amended.
"Event of Default" is defined in Article 9 of this
Agreement.
"Exchange Act" means the Securities Exchange Act of
1934, as amended.
"Fair Market Value" means, 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.
"Financial Statements" means the consolidated state-
ments of financial condition of the Company 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 Company and its Subsidiaries as of September 30,
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 nine (9) month period
ended on such date.
"Fleet Loan Agreement" means the Third Amended and
Restated Loan Agreement dated as of May 28, 1997 among the
Company, the Banks listed therein, and Fleet Bank, N.A., as
Agent, as amended through the Effective Date.
"GAAP" means 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.
"Governmental Body" shall mean any nation or
government, any state or other political subdivision thereof
and any entity exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to
government.
"Indebtedness" means, 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 liability 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 Payment Date" means the same day as the
Loan Date on a quarterly basis after the Loan Date and up to
the Maturity Date.
"Investment" in any Person by the Company means:
(a) the amount paid or committed to be paid, or the value of
property or services contributed or committed to be
contributed, by the Company for or in connection with the
acquisition by the Company 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 Company 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 Company.
"IRS" means the Internal Revenue Service.
"Lender" is defined in Section 2.1.
"Lending Office" or "Lending Office of the Lender"
means Credit Suisse First Boston, (New York Branch), Eleven
Madison Avenue, New York, New York 10010, or such other office
or offices situated in the United States of America as the
Lender may from time to time designate to the Company by
written notice.
"Lien" means 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" means the loan to be made by the Lender to the
Company pursuant to this Agreement.
"Loan Date" means March 25, 1998.
"Maturity Date" is defined in Section 2.2.
"Moody's" means Moody's Investors Services, Inc.
"NCB Capital" means NCB Capital Corporation, a
Delaware corporation formerly named NCB Mortgage Corporation.
"NCCB Senior Obligations" means, at any date of
determination thereof, with respect to the Company, 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 outstanding contingent liability, plus
(d) Asset Securitization Recourse Liabilities
of the Company (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
Company'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 Company 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" means the Promissory Note issued to the Lender
by the Company pursuant to this Agreement, substantially in
the form (appropriately completed) of Exhibit A to this
Agreement.
"Notice of Borrowing" means any notice given to GFC
and CSFB by the Company pursuant to and in accordance with
Section 4.1 of this Agreement.
"Paid-in-Capital" has the meaning ascribed to it by
GAAP.
"PBGC" means the Pension Benefit Guaranty
Corporation.
"Permitted Liens" means (i) pledges or deposits by
Company 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
Company), or leases to which the Company is a party, or
deposits to secure public or statutory obligations of the
Company or deposits of cash or U.S. government Bonds to secure
surety, appeal, performance or other similar bonds to which
the Company 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, materialmen's
and mechanics' liens, or Liens arising out of judgments or
awards against the Company with respect to which the Company
at the time shall currently by 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 7.6
hereof; and (iv) Liens incidental to the conduct of the
business of the Company or to the ownership of its property
which were not incurred in connection with Indebtedness of the
Company, 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 Company.
"Person" means 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 individual, fiduciary or other capacity.
"Plan" means 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 Company or any member of the
Controlled Group for employees of the Company, or by the
Company 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 Company 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 contributions.
"Property" means any interest in any kind of property
or asset, whether real, personal or mixed, or tangible or
intangible.
"Qualified Assets" means, at any date of
determination thereof, the sum of the following items (a), (b)
and (c) owned by the Company:
(a) The principal amount of all promissory
notes and other interest bearing obligations acquired by
the Company 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).
"Regulatory Change" means any applicable law,
interpretation, directive, request or guideline (whether or
not having the force of law), or any change therein or in the
administration or enforcement thereof, that becomes effective
or is implemented or first required or expected to be complied
with after the date hereof, whether the same is (i) the result
of an enactment by a government or any agency or political
subdivision thereof, a determination of a court or regulatory
authority, or otherwise or (ii) enacted, adopted, issued or
proposed before or after the date hereof, including any such
that imposes, increases or modifies any tax, reserve
requirement, insurance charge, special deposit requirement,
assessment or capital adequacy requirement, but excluding any
such that imposes, increases or modifies any income or
franchise tax imposed upon the Lender by any jurisdiction (or
any political subdivision thereof) in which the Lender or any
office thereof is located.
"Rentals" means all fixed rentals (including as such
all payments that the lessee is obligated to make to the
lessor on termination of the lease or surrender of the
property) payable by the Company, 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 Company (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.
"Restricted Guarantees" at any time means all
"guarantees" (as defined in Section 8.3 hereof) by the Company
of obligations of others that constitute sum certain
obligations at the time such guarantees are incurred.
"Retained Earnings" means the consolidated retained
earnings account (whether allocated or unallocated) of the
Company and its Subsidiaries determined as of any date in
accordance with GAAP consistent with those applied in the
preparation of the Company's consolidated statement of
financial condition for the fiscal year ended December 31,
1996.
"S&P" means Standard & Poor's Ratings Services.
"Securities Act" means the Securities Act of 1933,
as amended.
"Security" shall have the meaning ascribed thereto
in Section 2(1) of the Securities Act, as amended; provided,
however, that Asset Securitization Recourse Liabilities shall
not constitute "Securities" except (i) to the extent that such
obligations arise from the Company'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 Company 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" means the banks which are
signatories to the Fleet Loan 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" means all Indebtedness of the Company
for borrowed money that is not expressed to be subordinate or
junior to any other Indebtedness, including, without
limitation, under this Agreement, the Fleet Loan Agreement or
the Senior Note Agreements.
"Senior Notes" means the Senior Notes issued by the
Company in the aggregate principal amount of $110,000,000
under the terms and conditions of the Senior Note Agreements.
"Senior Note Agreements" means 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 Company's Amended and
Restated 8.18% Series A Senior Notes due June 24, 1997 (now
matured and repaid), Amended and Restated 8.32% Series B
Senior Notes due December 24, 1997 (now matured and repaid),
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 Company'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 to up to $50,000,000 of Senior Notes, pursuant to
which there were issued $30,000,000 in 7.15% Senior Notes due
September 29, 2001; (iv) Senior Note Agreements dated December
15, 1995, as amended December 6, 1996, in respect of the
Company's 6.60% Series D Senior Notes due December 31, 2002,
and 6.59% Series E Senior Notes due December 31, 2002; and (v)
Master Shelf Agreement dated as of June 30, 1997, in respect
to up to $30,000,000 of Senior Notes pursuant to which there
were issued $10,000,000 in 6.94% Senior Notes due July 14,
2003.
"SPV" has the meaning assigned to such term in the
definition of "Asset Securitization" in this Article I, and,
NCB I, Inc. and any other Subsidiary of the Company having
powers limited to the holding of regular or residual interests
arising out of Asset Securitizations.
"Subsidiary" means 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 contingency) 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.
Section 1.2 Accounting Terms. 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 6 to GAAP shall be deemed
to refer to such principles as in effect on the date of the
financial statements delivered pursuant thereto.
Section 1.3 Time Period Computations. In the
computation of a period of time specified in this Agreement from a
specified date to a subsequent date, the word "from" means "from and
including" and the words "to" and "until" mean "to but excluding".
ARTICLE 2
GENERAL LOAN PROVISION
Section 2.1 The Loan. Subject to the terms and
conditions of this Agreement, on the Loan Date, GFC may, in its
discretion, make a loan to the Company or, if GFC does not make
such loan, CSFB shall make a loan to the Company, and in either
case the Company shall borrow from GFC or CSFB, as the case may be
(the party making such loan, the "Lender"), the aggregate principal
amount of TWENTY MILLION UNITED STATES DOLLARS ($20,000,000) (the
"Loan").
Section 2.2 Term of Loan. The entire principal amount
of the Loan shall be due and payable on March 26, 2001 (the
"Maturity Date").
Section 2.3 Proceeds of Loan. The Lender shall, upon
the Company's satisfaction of the conditions specified in Article
4 of this Agreement, make the entire principal amount of the Loan
available to the Company before 12:00 Noon (New York City time) on
the Loan Date in Dollars in immediately available funds at the bank
(and for credit to the account of the Company at such bank
designated by the Company) specified by the Company in the Notice
of Borrowing.
Section 2.4 The Note. The Loan shall be evidenced by
a Promissory Note of the Company, which shall be substantially in
the form of Exhibit A to this Agreement (appropriately completed),
dated the Loan Date, payable to the order of the Lender in the
principal amount of the Loan. The first and last days of each
interest period during the term of the Loan and each payment of
interest on the Loan shall be recorded by the Lender on the
"Schedule of Interest" attached to the Note and by specific
reference made a part thereof. Any prepayment of the principal
amount of the Loan shall be recorded by the Lender on the reverse
side of the Note and indicated on the "Schedule of Interest".
ARTICLE 3
INTEREST AND REPAYMENT
Section 3.1 Interest on the Loan. The Loan shall bear
interest at the rate of 6.24% per annum on the principal amount of
the Loan from time to time outstanding until the entire principal
amount of the Loan shall have been repaid.
Section 3.2 Additional Interest. If, after the date
of this Agreement, any Regulatory Change
(i) shall subject the Lender to any tax, duty
or other charge with respect to its obligation to make or
maintain the Loan, or shall change the basis of taxation
of payments to the Lender of the principal of or interest
on the Loan, in respect of any other amounts due under
this Agreement or in respect of its obligation to make
the Loan (except for changes in the rate of tax on the
overall net income of the Lender); or
(ii) shall impose, modify or deem applicable
any reserve, special deposit, capital adequacy or similar
requirement against assets of, deposits with or for the
account of, or credit extended by, the Lender or shall
impose on the Lender any other condition affecting (1)
the obligation of the Lender to make or maintain the
Loan; or (2) the Note;
and the result of any of the foregoing is to increase the cost to
the Lender of making or maintaining the Loan or to reduce the
amount of any sum received or receivable by the Lender under this
Agreement or under the Note, by an amount reasonably deemed by the
Lender to be material, then, within fifteen days after demand by
the Lender, the Company shall pay to the Lender such additional
amount or amounts as will compensate the Lender for such increased
cost or reduction. A certificate of the Lender setting forth the
basis for determining such additional amount or amounts necessary
to compensate the Lender shall be conclusive in the absence of
manifest error.
Section 3.3 Interest after Maturity. In the event the
Company shall fail to make any payment of the principal amount of,
or interest on, the Loan when due (whether by acceleration or
otherwise), after giving effect to any applicable grace period
provided for in this Agreement, the Company shall pay interest on
such unpaid amount, payable from time to time on demand, from the
date such amount shall have become due to the date of payment
thereof, accruing on a daily basis, at a per annum rate (the
"Default Rate") equal to the greater of (i) the sum of the interest
rate on the Loan in effect immediately before such amount became
due, plus two per cent (2.0%) and (ii) the Base Rate, plus two per
cent (2.0%).
Section 3.4 Payment and Computations.
(a) All payments required or permitted to be made
to the Lender under this Agreement or the Note shall be made
to the Lender in Dollars at the Lending Office of the Lender
in immediately available funds.
(b) Interest on the Loan shall be computed on the
basis of a year of 360 days consisting of 12 months of 30 days
each and, in the case of a portion of a month, for the actual
number of days (including the first day but excluding the last
day) elapsed.
(c) Interest on the Loan shall be payable in
arrears on each Interest Payment Date; provided, that in the
event that any Interest Payment Date shall be a day which is
not a Business Day, the obligation to make such payment shall
be deferred to the next succeeding Business Day unless such
Business Day falls in another calendar month, in which case
the Interest Payment Date shall be advanced to the next
preceding Business Day.
(d) Whenever any payment of principal is required
or permitted to be made on a day which is not a Business Day,
the obligation of the Company to make such payment shall be
deferred until the next succeeding Business Day and, in such
case, such extension of time shall be included in the
computation of interest in respect of such principal amount at
the rate in effect at the date such principal amount was
otherwise due and payable.
Section 3.5 Payment at Maturity. Any principal amount
of the Note theretofore not repaid, together with any accrued
interest thereon, shall be due and payable in full on the Maturity
Date.
Section 3.6 Optional Prepayments: Certain Early
Repayments.
(a) Subject to the terms and conditions of this
Section 3.6, the Company may, at its sole option, prepay the
principal amount of the Loan in whole or in part (in any
amount of $1,000,000 or more) at any time and from time to
time (each an "Optional Prepayment") without premium or penalty
(except as set forth in Section 3.6(c) below). Each Optional
Prepayment shall be accompanied by the payment of all accrued
and unpaid interest to the date of such Optional Prepayment on
the principal amount of such Optional Prepayment and any
amounts due under Section 3.6(c) in connection with such
Optional Prepayment.
(b) In respect of each Optional Prepayment proposed
to be made by the Company, the right of the Company to make
such Optional Prepayment is subject to the Lender's receipt
from the Company, at least three Business Days prior to the
date specified therein as the date on which Optional
Prepayment is to be made, of a written notice (which shall be
irrevocable) specifying (i) the principal amount of such
Optional Prepayment and (ii) the date (which shall be a
Business Day) on which such Optional Prepayment will be made.
(c) If the Company prepays all or any part of the
outstanding principal balance of the Loan in advance of the
Maturity Date (whether due to Optional Prepayment,
acceleration or for any other reason), in addition to the
payments of principal and accrued and unpaid interest, the
Company shall pay to the Lender, upon the request of the
Lender, such amount or amounts as shall be sufficient in the
reasonable opinion of the Lender, to compensate the Lender for
any loss, cost, or expense incurred as a result of any payment
or prepayment on a date other than the Maturity Date for such
Loan, such compensation to include, without limitation, an
amount equal to the excess of (i) the interest that would have
been received from the Company under this Agreement on any
amounts to be reemployed during the period from the payment or
prepayment date to the Maturity Date over (ii) the interest
component of the return that the Lender determines it could
have obtained had it placed such amount on deposit in the
interbank Dollar market selected by it for a period equal to
such period from the payment or prepayment date to the
Maturity Date.
Section 3.7 Highly Leveraged Transaction. In the
event that the Loan shall be designated a "highly leveraged
transaction" (as defined in Bank Circular BC-242, dated October 30,
1989, as supplemented by Supplement 1, dated February 16, 1990, and
as may hereafter be supplemented or amended from time to time), the
Lender shall so notify the Company, whereupon the Company shall pay
additional compensation for the Loan at the rate of $150,000 per
annum from the date of such designation through the date that such
designation ceases to be effective or the Loan is repaid in full.
Such compensation shall be paid quarterly in arrears.
ARTICLE 4
CONDITIONS PRECEDENT TO THE LOAN
Section 4.1 Delivery on or Prior to Loan Date. The
obligation of GFC or CSFB to make the Loan to the Company hereunder
is subject to the condition precedent that the applicable Lender
shall have received an irrevocable Notice of Borrowing from the
Company on the Business Day prior to the requested Loan Date that
specifies the Loan Date (which shall be a Business Day) and
confirms that the amount of the Loan shall be $20,000,000; and such
obligation is subject to the further condition precedent that the
applicable Lender shall have received from the Company on or prior
to the Loan Date the following instruments, each dated as of the
Loan Date:
(a) The Note, duly executed by the Company;
(b) An opinion of counsel to the Company in form
and substance satisfactory to the applicable Lender;
(c) A certified copy of the resolutions of the
Board of Directors of the Company authorizing the execution
and delivery of this Agreement and the Note;
(d) A certificate of the Secretary, an Assistant
Secretary or an Assistant Treasurer of the Company certifying
the names and true signatures of the Authorized Officers;
(e) A certified copy of the By-Laws of the Company
as in effect on the Loan Date; and
(f) A certified copy of each Senior Note Agreement,
the Fleet Loan Agreement and other agreement evidencing
Indebtedness of the Company for borrowed money in effect as of
the Loan Date.
Section 4.2 Further Condition Precedent to the Loan.
The obligation of GFC or CSFB to make the Loan shall be subject to
the further conditions precedent that on the Loan Date the
following statements shall be true and correct and the applicable
Lender shall have received a certificate signed by an Authorized
Officer, dated the Loan Date, to the effect that:
(a) The representations and warranties of the
Company contained in Article 5 are correct as of the Loan Date
as though made on and as of the Loan Date;
(b) No event has occurred and is continuing, or
would result from the Loan after giving effect to the
application of the proceeds therefrom, which constitutes an
Event of Default or would constitute an Event of Default but
for the requirement that notice be given or time elapse or
both;
(c) No Default shall have occurred and be
continuing at the time the Loan is to be made or would result
from the making of the Loan or from the application of the
proceeds thereof; and
(d) All legal matters incident to the closing of
the transactions contemplated by this Agreement and the making
of the Loan shall be satisfactory to the applicable Lender and
its counsel.
ARTICLE 5
REPRESENTATION AND WARRANTIES
The Company hereby represents and warrants to GFC and CSFB
that:
Section 5.1 Organization.
(a) Each of the Company 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 to the Fleet Loan Agreement accurately and completely
lists the jurisdiction of incorporation of the Company and its
Subsidiaries, and the authorized and outstanding shares of
common stock of the Company and its Subsidiaries, except for
the name change of NCB Capital as contemplated in Schedule
3.13.5. 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 such 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 Company
or its Subsidiaries nor are there outstanding any securities
which are convertible into or exchangeable for any shares of
capital stock of the Company or any of its Subsidiaries.
Except as set forth on such Schedule 3.1, neither the Company
nor any of its Subsidiaries has any Subsidiary.
(b) There are no jurisdictions other than as set
forth on Schedule 3.1 annexed to the Fleet Loan Agreement in
which the character of the properties owned or proposed to be
owned by the Company or any of its Subsidiaries or in which
the transaction of the business of the Company or any of its
Subsidiaries as now conducted or as proposed to be conducted
requires or will require the Company 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
Company and its Subsidiaries, taken as a whole.
Section 5.2 Power, Authority and Consents. (i) The
Company has the power to execute, deliver and perform the Loan
Documents to be executed by it; (ii) the Company 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 Company has taken all necessary action,
corporate or otherwise, to authorize the execution, delivery and
performance of this Agreement and the Note (the "Loan Documents").
No consent or approval of any Person (including, without
limitation, any stockholder of the Company), 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 Company, or the validity or
enforcement of, the Loan Documents, or if required each of which
has been duly and validly obtained on or prior to the date hereof
and is now in full force and effect.
Section 5.3 No Violation of Law or Agreements. The
execution and delivery by the Company of each Loan Document and
performance by it hereunder and thereunder, will not violate any
provision of law and will not 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 Company 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 Company is a party,
or by which the Company 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 Company.
Section 5.4 Due Execution, Validity and
Enforceability. This Agreement and each other Loan Document has
been duly executed and delivered by the Company and each
constitutes the valid and legally binding obligation of the
Company, 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 5.5 Properties. All of the properties and
assets owned by the Company or any of its Subsidiaries are owned by
each of them, respectively, free and clear of any Lien of any
nature whatsoever, except Permitted Liens and as permitted by
Schedule 3.5 annexed to the Fleet Loan Agreement.
Section 5.6 Judgments, Actions and Proceedings.
Except as set forth on Schedule 3.6 annexed to the Fleet Loan
Agreement, there are no outstanding judgments, actions or proceed-
ings pending before any court or governmental authority, bureau or
agency, with respect to the Company or any of its Subsidiaries or,
to the best of the Company's knowledge, threatened against or
affecting the Company 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 Company'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 Company or any of its Subsidiaries is a
plaintiff or complainant.
Section 5.7 No Defaults, Compliance With Laws. Except
as set forth on Schedule 3.7 annexed to the Fleet Loan Agreement,
neither the Company 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 agreement 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 Company and
its Subsidiaries has complied and is in compliance in all material
respects 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
Company or any of its Subsidiaries or on the ability of the Company
or any of its Subsidiaries to perform their respective obligations
under the Loan Documents.
Section 5.8 Burdensome Documents. Except as set forth
on Schedule 3.8 annexed to the Fleet Loan Agreement, neither the
Company 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 5.9 Financial Statements. Each of the
Financial Statements is correct and complete and presents fairly
the consolidated and consolidating financial position of the
Company 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 Company 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 Company 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 Company is the
twelve-month period ending on December 31 in each year.
Section 5.10 Tax Returns. The Company 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 Company 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 Company, proposed or threatened against the Company 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 5.11 Intangible Assets. The Company 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 5.12 Regulation U. No part of the proceeds
received by the Company from the Loan 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 221.3 of Regulation U of the Board of Governors
of the Federal Reserve System, 12 C.F.R., Chapter II, Part 221.
Section 5.13 Name Changes. Except as set forth on
Schedule 3.13 annexed to the Fleet Loan Agreement, neither the
Company 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 substantially all of the assets of any Person.
Section 5.14 Full Disclosure. None of the Financial
Statements, nor any certificate, opinion, or any other statement
made or furnished in writing to GFC or CSFB by or on behalf of the
Company or any of its Subsidiaries in connection 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 Company 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
Company 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 GFC and
CSFB.
Section 5.15 Employee Grievances. Except as set forth
on Schedule 3.15 annexed to the Fleet Loan Agreement, there are no
actions or proceedings pending or, to the best of the knowledge of
the Company, threatened against the Company 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 5.16 Condition of Assets. All of the assets
and properties of the Company 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 5.17 ERISA.
(a) Except as set forth on Schedule 3.17 annexed to
the Fleet Loan Agreement, neither the Company 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 Company or any of its Subsidiaries to the PBGC,
Department of Labor or the IRS. Neither the Company nor any
of its Subsidiaries is a participating 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 Company or its Sub-
sidiaries in this Section 5.17 or in any other Section of this
Agreement relating to ERISA, shall be deemed to refer to the
Company and its Subsidiaries and all other entities which are,
together with the Company, part of a Controlled Group.
ARTICLE 6
DELIVERY OF FINANCIAL REPORTS, DOCUMENTS AND OTHER INFORMATION
Prior to the Loan Date and thereafter until payment in
full of the Note and full and complete performance of all of its
other obligations arising hereunder, the Company shall deliver to
the Lender:
Section 6.1 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 Company and its Subsidiaries, and a consolidated
balance sheet of the Company as at such last day of the fiscal
year, and the related consolidated statements of income and
retained earnings and cash flows of the Company for such fiscal
year, each prepared in accordance with GAAP consistently applied,
in reasonable detail, and, as to the consolidated statements of the
Company and its Subsidiaries and the statements of the Company,
certified without qualification by independent certified public
accountants satisfactory to the Lender, or certified, as to the
consolidating statements, by the chief financial officer of the
Company, as fairly presenting the financial positions and the
results of operations of the Company and its Subsidiaries, as at
and for the year ending on its date and as having been prepared in
accordance with GAAP.
Section 6.2 Quarterly Financial Statements. As soon
as available, but in any event within 45 days after the end of the
Company'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 Company and its Subsidiaries and a
consolidated balance sheet of the Company as of the last day of
such quarter, and statements of income and retained earnings and
cash flows for the Company 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 Company as fairly presenting the financial position
and the results of operations of the Company 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 6.3 Other Information. Promptly after a
written request therefor, such other financial data or information
evidencing compliance with the requirements of this Agreement, as
the Lender may reasonably request from time to time.
Section 6.4 No Default Certificate. At the same time
as it delivers the financial statements required under the
provisions of Section 6.1 and 6.2, a certificate of the president
or chief executive officer or chief financial officer of the
Company to the effect that no Event of Default hereunder and that
no default under any other agreement to which the Company 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 Company 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 certificate shall be accompanied by a
detailed calculation indicating compliance with the covenants
contained in Section 7.9 hereof.
Section 6.5 Certificate of Accountants. At the same
time as it delivers the financial statements required under the
provisions of Section 6.1, a certificate of the independent
certified public accountants of the Company and its Subsidiaries,
specifically addressed to the Company and its Subsidiaries and to
the Lender, to the effect that during the course of their audit of
the operations of the Company 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 Company or any of its Subsidiaries contained
in Section 7.9 or Article 8 of this Agreement, or, if such cannot
be so certified, specifying in reasonable detail the exceptions, if
any, to such statement.
Section 6.6 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 Company to any lending institution other
than the Lender; (b) correspondence or notices received by the
Company from any federal, state or local governmental authority
which regulates the operations of the Company, relating to an
actual or threatened change or development which would be
materially adverse to the Company; (c) registration statements and
any amendments and supplements thereto, and any regular and
periodic reports, if any, filed by the Company 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 Company by any such securities exchange or such
Commission in relation to the Company and its affairs.
Section 6.7 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
Company.
(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 Company under any
material agreement of the Company, or would constitute or
cause a material adverse change in the condition, financial or
otherwise, or the operation of the Company.
Section 6.8 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 Company;
(ii) copies of all actuarial valuations received by the
Company 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 Company with respect to the intent of
the PBGC to institute involuntary termination proceedings.
ARTICLE 7
AFFIRMATIVE COVENANTS
Prior to the Loan Date and thereafter until payment in
full of the Note and full and complete performance of all of its
other obligations arising hereunder, the Company shall, and shall
cause each of its Subsidiaries to:
Section 7.1 Books and Records. Keep proper books of
record and account in a manner reasonably satisfactory to the
Lender in which full, true and correct entries shall be made of
all dealings or transactions in relation to its business and
activities.
Section 7.2 Inspections and Audits. Permit the Lender
to make or cause to be made (and, after the occurrence of and
during the continuance of an Event of Default, at the Company's
expense) inspections and audits of any books, records and papers of
the Company and to make extracts therefrom and copies thereof, or
to make inspections and examinations of any properties and
facilities of the Company, on reasonable notice, at all such
reasonable times and as often as the Lender may reasonably require,
in order to assure that the Company is and will be in compliance
with its obligations under the Loan Documents.
Section 7.3 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 7.4 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 7.5 Copies of Corporate Documents. Subject to
the prohibitions set forth in Section 8.12 hereof, promptly deliver
to the Lender copies of any amendments or modifications to its
by-laws, certified by the secretary or assistant secretary of the
corporation.
Section 7.6 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 Company, 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 7.7 Notice of Litigation. Promptly notify the
Lender 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 less
than Two Hundred and Fifty Thousand Dollars ($250,000), affecting
the Company 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 7.8 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 Lender 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 Lender, obtain such additional insurance as
the Lender may reasonably request; and,
(b) Carry all insurance available through the PBGC
or any private insurance companies covering its obligations to
the PBGC.
Section 7.9 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 Company 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 Company 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 Company at all times,
Investments of the types described in Section 8.9(i) through
(xii) hereof in an aggregate amount not less than Twenty-Five
Million Dollars ($25,000,000).
(d) With respect to the Company for any period of
four (4) consecutive fiscal quarters of the Company,
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 Company, 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 Capital $15,000,000
(f) With respect to the Company at all times,
Investments in Subsidiaries (other than as set forth in
subsection 7.9(e) above and excluding SPV's and secured loans
to NCB Capital) 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
10.0 to 1.0. For purposes of calculating the ratio set forth
in this subsection 7.9(g) and in subsection 7.9(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 Company 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 7.10 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 Company
intends to take with respect thereto, together with a copy of the
notice thereof given to the PBGC.
Section 7.11 Comply with ERISA. Comply in all material
respects with all applicable provisions of ERISA now or hereafter
in effect.
Section 7.12 Senior Debt Agreements. Comply and remain
at all times in compliance with the Senior Note Agreements and the
Fleet Loan Agreement.
ARTICLE 8
NEGATIVE COVENANTS.
Until the Loan Date and thereafter until payment in full
of the Note and full and complete performance of all of its other
obligations arising hereunder, neither the Company nor any of its
Subsidiaries shall do, agree to do, or permit to be done, any of
the following:
Section 8.1 Indebtedness. Subject to subsections
7.9(f), (g) and (h), create, incur, permit to exist or have
outstanding any Indebtedness, except:
(a) Indebtedness to the Lender under this Agreement
and the Note;
(b) Indebtedness of the Company under the Fleet
Loan Agreement;
(c) 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;
(d) Indebtedness under, and as permitted by, the
Senior Note Agreements;
(e) Indebtedness under the Class A Notes; and
(f) Indebtedness as set forth on Schedule 7.1
annexed to the Fleet Loan Agreement.
Section 8.2 Liens. Create, or assume or permit to
exist, any Lien on any of the properties or assets of the Company
whether now owned or hereafter acquired, except:
(a) Permitted Liens;
(b) As set forth on Schedule 3.5 annexed to the
Fleet Loan Agreement; and
(c) To secure obligations in connection with
Eligible Derivatives; provided, however, in the event the
Agent under the Fleet Loan Agreement notifies the Company in
writing that either (i) the Total Commitments (as defined
therein) are being terminated pursuant to the terms and
conditions of the Fleet Loan Agreement, or (ii) the Banks (as
defined therein) have elected not to extend or renew either of
their respective A Commitments or B Commitments (as so
defined) 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 Company by the
Agent pursuant to the Fleet Loan Agreement.
Section 8.3 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 8.4 Mergers, Acquisitions. Merge or
consolidate with any Person (whether or not the Company is the
surviving entity), except a Subsidiary may consolidate with, or
merge into, the Company or another Subsidiary, or, except as
permitted by subsection 7.9(f), acquire all or substantially all of
the assets or any of the capital stock of any Person.
Section 8.5 Redemptions; Distributions.
(a) Except for redemptions by the Company of Class
B1 Common Stock from the holders thereof who no longer have
loans from the Company 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 Company 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 Company's outstanding stock,
or set aside any sum for any such purpose, except that the
Company 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 Company.
Section 8.6 Intentionally Omitted.
Section 8.7 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 8.8 Intentionally Omitted.
Section 8.9 Investments. Make, or suffer to exist,
any Investment in any Person, including, without limitation, any
shareholder, director, officer or employee of the Company 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
Credit Rating Co.;
(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 S&P, Moody's or Duff & Phelps Credit Rating
Co. 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 S&P, Moody's or Duff
& Phelps Credit Rating Co.; 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 7.9(e)-(f) 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 8.10 Fiscal Year. Change its fiscal year.
Section 8.11 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 Section 4975
of the Code, as in effect or hereafter amended or
supplemented, in excess of $50,000.
Section 8.12 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 Company or its ability
to perform hereunder or could materially and adversely affect
the rights of the Lender hereunder.
Section 8.13 Transactions with Affiliates. Except as
expressly permitted by this Agreement, and as set forth on Schedule
7.13 annexed to the Fleet Loan Agreement, directly or indirectly:
(a) make any Investment in an Affiliate; or (b) 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 (i) any Affiliate who is an individual may serve as an
employee or director of the Company and receive reasonable
compensation for his services in such capacity, and (ii) the
Company 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 Company as the monetary or business
consideration which would obtain in a comparable arm's length
transaction with a Person not an Affiliate.
ARTICLE 9
EVENTS OF DEFAULT
If any one or more of the following events ("Events of
Default") shall occur and be continuing, the entire unpaid balance
of the principal of and interest on the Note outstanding and all
other obligations and Indebtedness of the Company to the Lender
arising hereunder and under the other Loan Documents shall
immediately become due and payable upon written notice to that
effect given to the Company by the Lender (except that in the case
of the occurrence of any Event of Default described in Section 9.7
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
Company; provided, however, that: (i) in case of the occurrence of
the Event of Default described in Section 9.1, 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 9.7, no such notice shall
be required.
Section 9.1 Payments. Failure to make any required
payment of principal of the Note or the Loan or failure within
three (3) Business Days after the due date thereof (the "Grace
Period") to make any payment of interest on the Note or the Loan;
or,
Section 9.2 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 9.3 Covenants. Failure to perform or observe
any of the agreements of the Company contained in Section 7.9 or
Article 8 hereof (except for the agreements of the Company
contained in Sections 8.9 or 8.13); or,
Section 9.4 Other Covenants. Failure by the Company
to perform or observe the agreements of the Company contained in
Sections 8.9 or 8.13 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, the Note, which
shall remain unremedied for a period of fifteen (15) days after
notice thereof shall have been given to the Company by the Lender;
or,
Section 9.5 Other Defaults.
(a) Failure by the Company 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 Company 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, the Fleet Loan Agreement 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;
(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 9.6 Representations and Warranties. Any
representation or warranty made in writing to GFC, CSFB or the
Lender in any of the Loan Documents or in connection with the
making of the Loan, 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 9.7 Bankruptcy.
(a) The Company 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, custodian, 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 Company 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 Company 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 Company shall generally not pay its debts
as such debts become due; or,
(c) The Company 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 9.8 Judgments. Any judgment against the
Company 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 9.9 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 Company to make required
contributions, in accordance with the applicable provisions of
ERISA, to each of the Plans hereafter established or assumed
by it.
ARTICLE 10
MISCELLANEOUS
Section 10.1 Amendments and Waivers: Cumulative
Remedies. No delay or failure of the Lender or the holder of any
Note in exercising any right, power or privilege hereunder shall
affect such right, power or privilege; nor shall any single or
partial exercise thereof or any abandonment or discontinuance of
steps to enforce such a right, power or privilege preclude any
further exercise thereof or of any other right, power or privilege.
The rights and remedies of the Lender, of any other holder of any
Note hereunder and of the Company are cumulative and not exclusive
of any rights or remedies which any of them would otherwise have.
Any waiver, permit, consent or approval of any kind or character
(whether involving a breach, default, provision, condition or term
hereof or otherwise) on the part of the Lender, of the holder of
any Note, or of the Company under this Agreement or under any Note
must be in writing and shall be effective only in the specific
instance and for the purpose for which given and only to the extent
set forth specifically in such writing. No notice or demand given
hereunder shall entitle the recipient thereof to any other or
further notice or demand in similar or other circumstances.
Section 10.2 Survival of Representations and
Warranties. All representations, warranties, covenants and
agreements of the Company contained herein or made in writing in
connection herewith shall survive the execution and delivery of
this Agreement, the making of Loan hereunder and the issuance of
the Note, provided that the survival of a representation or
warranty shall not constitute a restatement of such representation
or warranty after the Effective Date.
Section 10.3 Supervening Illegality. If, after the
Loan Date, as the result of (i) the adoption of any law, rule or
regulation by the United States of America or Switzerland or any
Governmental Body of either thereof, (ii) any change in the
existing laws, rules and regulations of the United States of
America or Switzerland, or any Governmental Body of either thereof,
(iii) the issuance of any order or decree by any Governmental Body
of either thereof, (iv) any change in the interpretation or
administration of any applicable law, rule, regulation, order or
decree by any Governmental Body (including any central bank or
similar agency) of either thereof charged with the interpretation
or administration thereof, or (v) compliance by the Lender with any
request or directive (whether or not having the force of law) of
any Governmental Body of either thereof, it shall be unlawful or
impossible for the Lender to maintain the Loan (after the Lender
shall have used reasonable efforts to avoid such result), the
Lender shall so notify the Company and the Lender may require the
Company to prepay the entire principal amount of, and all accrued
and unpaid interest on, the Loan, together with any amount payable
pursuant to Section 3.6, by giving the Company at least thirty (30)
business days' prior written notice. If after the Effective Date
and prior to the Loan Date it shall become unlawful or impossible
for the CSFB to make the Loan, this Agreement shall terminate
forthwith and no party hereto shall have any further rights or
obligations under this Agreement.
Section 10.4 No Reduction in Payments. All payments
due to the Lender hereunder, and all other terms, conditions,
covenants and agreements to be observed and performed by the
Company hereunder, shall be made, observed or performed by the
Company without any reduction or deduction whatsoever, including
any reduction or deduction for any set-off, recoupment,
counterclaim (whether sounding in tort, contract or otherwise) or
tax. CSFB has submitted to the Company two duly completed and
signed copies of Form 4224 of the United States Internal Revenue
Service relating to all amounts to be received by it pursuant to
this Agreement. CSFB, if it is the Lender at such time, shall,
from time to time, submit to the Company such additional duly
completed and signed copies of such forms (or such successor forms
as shall be adopted from time to time by the relevant United States
taxing authorities) as may be (i) requested in writing by the
Company and (ii) appropriate under then current United States law
or regulations to avoid or reduce United States withholding taxes
on payments in respect of all amounts to be received by CSFB
pursuant to this Agreement.
Section 10.5 Change of Control Option.
(a) In the event that there shall occur any Change
of Control (as defined below) in respect of the Company, the
Lender shall have the right, at its option exercisable at any
time within six months following the Change Date (as defined
below), to require the Company to purchase the Note on the
Purchase Date (as defined below) at a purchase price that
shall be equal to the sum of (i) the principal amount of the
Note then outstanding, plus (ii) any and all accrued and
unpaid interest on the Note to the Purchase Date plus (iii)
the amount that would be payable by the Company under Section
3.6(c) in the case of a prepayment in full of the Note (the
"Purchase Price").
(b) The Company shall give the Lender written
notice of the occurrence of a Change of Control within five
Business Days following the Change Date. No failure of the
Company to give notice of a Change of Control shall limit the
right of the Lender to require the Company to purchase the
Note pursuant to this Section 10.5.
(c) The Lender may exercise its option hereunder to
require the Company to purchase the Note by delivering to the
Company at any time within six months after the Change Date
(i) written notice of such exercise specifying the Purchase Date and
(ii) the Note duly endorsed. The Lender's commitment
shall automatically terminate immediately upon the Company's
receipt of the Lender's written notice of such exercise of its
option under and in accordance with this Section 10.5.
(d) In the event of the exercise by the Lender of
its option under this Section 10.5 in the manner provided
herein, the Company shall pay or cause to be paid to the
Lender on the Purchase Date the Purchase Price (determined in
accordance with subsection 10.5(a) in immediately available
funds.
(e) As used in this Section 10.5, the term:
(i) "Change Date" means the date on which any
Change of Control shall be deemed to have occurred;
provided, that, if the Company shall fail to give timely
notice of the occurrence of a Change of Control to the
Lender as provided in subsection 10.5(b) of this Section
10.5, for the purpose of determining the duration of the
option of the Lender granted under this Section 10.5,
"Change Date" shall mean the earlier of (i) the date on
which notice of a Change of Control is duly given by the
Company to the Lender or (ii) the date on which the
Lender obtains actual knowledge of the Change of Control.
(ii) "Change of Control" means when, and shall
be deemed to have occurred at such time as, a "person" or
"group" (within the meaning of Sections 13(d) and
14(d)(2) of the Exchange Act) becomes the "beneficial
owner" (as defined in Rule 13d-3 under the Exchange Act)
of more than fifty percent (50%) of the then outstanding
Voting Stock of the Company; provided, that fifty per
cent shall become seventy percent (70%) with respect to
any "employee benefit plan" (as defined in Section 3(3)
of ERISA) maintained by the Company or any Subsidiary of
the Company or any trust or funding vehicle maintained
for or pursuant to such "employee benefit plan".
(iii) "Purchase Date" means the date on
which the Company shall purchase the Note from the Lender
pursuant to the exercise by the Lender of its option
under this Section 10.5 pursuant to a notice given to the
Company in accordance with subsection 10.5(c) of this
Section 10.5, which date shall be a business day not less
than 90 nor more than 120 days after the date the Lender
gives the Company written notice of such exercise.
(iv) "Voting Stock" shall mean capital stock of
the Company of any class or classes (however designated)
the holders of which are ordinarily, in the absence of
contingencies, entitled to vote for the election of the
Board of Directors of the Company, it being understood
that, at the Effective Date, the Common Stock, Classes B
and C $100 par value, of the Company are the only
outstanding classes of capital stock of the Company that
constitute "Voting Stock".
Section 10.6 Stamp Taxes. The Company agrees to pay,
and to save CSFB, GFC and the holder of any Note harmless from all
liability for, any Delaware or Federal stamp, transfer, documentary
or similar taxes, assessments or charges (herein "Stamp Taxes"), and
any penalties or interest with respect thereto, which may be
assessed, levied, collected or imposed, or otherwise become
payable, in connection with the execution and delivery of this
Agreement or the Note.
Section 10.7 Notices. Any notice, statement, request
or demand required or permitted hereunder to be in writing may be
given by telex, cable or electronic communication means. All
notices, statements, requests and demands given to or made upon
either party hereto in accordance with the provisions of this
Agreement shall be deemed to have been given or made in the case of
telephonic notice (to the extent expressly permitted hereunder)
when made, or in the case of any other type of notice, when
actually received, if to the Company, to it at
National Consumer Cooperative Bank
1401 Eye Street, N.W. - Suite 700
Washington, D.C. 20005
Attention: Chief Financial Officer:
Telecopy: (202) 336-7803
with a copy to:
Shea & Gardner
1800 Massachusetts Avenue, N.W.
Washington, D.C. 20036
Attention: Martin J. Flynn, Esq.
Telecopy: 202-828-2195
and if to the Lender, to it at:
Credit Suisse First Boston
New York Branch
Eleven Madison Avenue
New York, New York 10010
Attention: Jay Chall
Telecopy: (212) 325-9010
or such other address for notice as either party may designate for
itself in a notice to the other party, except in cases where it is
expressly provided herein that such notice, statement, request or
demand shall not be effective until received by the party to whom
it is addressed.
Section 10.8 Governing Law. THIS AGREEMENT AND THE
NOTE SHALL BE DEEMED TO BE CONTRACTS UNDER THE LAWS OF THE STATE OF
NEW YORK AND FOR ALL PURPOSES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF SAID STATE.
Section 10.9 Successors and Assigns.
(a) This Agreement shall be binding upon and inure
to the benefit of and be enforceable by the respective
successors and assigns of the parties hereto; provided that
the Company may not assign or transfer any of its interest
hereunder without the prior written consent of the Lender.
(b) The Lender may make, carry or transfer the Loan
at, to or for the account of, any of its branch offices or the
offices of any of its Affiliates.
(c) The Lender may assign its rights and delegate
its obligations under this Agreement; provided that any such
assignment or delegation (other than the pledge of the Note to
the Federal Reserve Bank and other than an assignment or
delegation to CSFB by GFC) may be made only with the prior
written consent of the Company, which consent shall not be
unreasonably withheld or delayed. The Lender may sell
participation in all or any part of the Loan made by it or its
commitment or any other interest herein or in the Note to
another bank or other entity. In the case of an assignment,
upon notice thereof by the Lender to the Company, the assignee
shall have, to the extent of such assignment (unless otherwise
provided thereby), the same rights and benefits as it would
have if it were the Lender hereunder and the holder of the
Note, and, if the assignee has expressly assumed, for the
benefit of the Company, the Lender's obligations hereunder,
the Lender shall be relieved of its obligations hereunder to
the extent of such assignment and assumption. In the case of
a participation, the participant shall not have any rights
under this Agreement or the Note or any other document
delivered in connection herewith (the participant's rights
against the Lender in respect of such participation to be
those set forth in the agreement executed by the Lender in
favor of the participant relating thereto) and all amounts
payable by the Company shall be determined as if the Lender
had not sold such participation.
Section 10.10 Maximum Rate of Interest Permitted by
Law. Nothing in this Agreement shall require the Company to pay
interest for the account of the Lender at a rate exceeding the
maximum rate permitted by applicable law to be charged or received
by the Lender, it being understood that neither this Section nor
Section 10.8 is intended to make the criminal laws of any
jurisdiction applicable in circumstances in which they would not
otherwise apply. If the rate of interest specified herein or in
the Note would otherwise exceed the maximum rate so permitted to be
charged or received with respect to any Note, the rate of interest
required to be paid for the account of the Lender shall be
automatically reduced to such maximum rate.
Section 10.11 Expenses, Indemnification.
(a) The Company shall save GFC, CSFB and the Lender
harmless against all reasonable out of-pocket expenses
(including attorneys' fees and expenses) of such Person and
shall indemnify GFC, CSFB and the Lender and their respective
Affiliates, officers, employees and agents (Indemnified
Persons") against the costs of preparing this Term Loan
Agreement and the Note, all costs, expenses, losses and
damages arising in connection with this Agreement or the Note,
including with respect to any Credit Agreement Related Claim.
The obligation of the Company under this paragraph shall
survive the payment of the Note.
(b) All amounts payable by the Company under
Section 10.11(a) shall be immediately due upon written request
by the Indemnified Person for the payment thereof.
Section 10.12 Set-Off: Suspension of Payment and
Indemnities Performance. The Lender is hereby authorized by the
Company, at any time and from time to time, without notice, (a)
during any Event of Default, to set off against, and to appropriate
and apply to the payment of, the liabilities of the Company under
this Agreement and the Note (whether matured or unmatured, fixed or
contingent or liquidated or unliquidated) any and all liabilities
owing by the Lender or any of its Affiliates to the Company
(whether payable in Dollars or any other currency, whether matured
or unmatured and, in the case of liabilities that are deposits,
whether general or special, time or demand and however evidenced
and whether maintained at a branch or office located within or
without the United States) and (b) during any Event of Default, to
suspend the payment and performance of such liabilities owing by
such Person or its Affiliates and, in the case of liabilities that
are deposits, to return as unpaid for insufficient funds any and
all checks and other items drawn against such deposits.
Section 10.13 Judicial Proceedings; Waiver of Jury
Trial. Any judicial proceeding brought against the Company with
respect to any Credit Agreement Related Claim may be brought in any
court of competent jurisdiction in the City of New York, and, by
execution and delivery of this Agreement, the Company (a) accepts,
generally and unconditionally, the nonexclusive jurisdiction of
such courts and any related appellate court and irrevocably agrees
to be bound by any judgment rendered thereby in connection with any
Credit Agreement Related Claim, and (b) irrevocably waives any
objection it may now or hereafter have as to the venue of any such
proceeding brought in such a court or that such a court is an
inconvenient forum. The Company hereby waives personal service of
process and consents that service of process upon it may be made by
certified or registered mail, return receipt requested, at its
address specified or determined in accordance with the provisions
of Section 10.7, and service so made shall be deemed completed on
the third Business Day after such service is deposited in the mail.
Nothing herein shall affect the right of the Lender or any other
Indemnified Person to serve process in any other manner permitted
by law or shall limit the right of the Lender or any other
Indemnified Person to bring proceedings against the Company in the
courts of any other jurisdiction Any judicial proceeding by the
Company against the Lender involving any Credit Agreement Related
Claim shall be brought only in a court located in the City and
State of New York. THE PARTIES HERETO HEREBY WAIVE TRIAL BY JURY
IN ANY JUDICIAL PROCEEDING TO WHICH ANY TWO OR MORE OF THEM ARE
PARTIES INVOLVING ANY CREDIT AGREEMENT RELATED CLAIM.
Section 10.14 LIMITATION OF LIABILITY. NEITHER GFC,
CSFB, THE LENDER NOR ANY OTHER INDEMNIFIED PERSON SHALL HAVE ANY
LIABILITY WITH RESPECT TO, AND THE COMPANY HEREBY WAIVES, RELEASES
AND AGREES NOT TO SUE FOR, ANY SPECIAL, INDIRECT OR CONSEQUENTIAL
DAMAGES SUFFERED OR ALLEGED BY THE COMPANY IN CONNECTION WITH ANY
CREDIT AGREEMENT RELATED CLAIM.
Section 10.15 Severability. The provisions of this
Agreement are severable, and if any clause or provision of this
Agreement shall be held invalid or unenforceable in whole or in
part in any jurisdiction, then such clause or provision shall, as
to such jurisdiction, be ineffective to the extent of such
invalidity or unenforceability without in any manner affecting the
validity or enforceability of such clause or provision in any other
jurisdiction or the remaining provisions hereof in any
jurisdiction.
Section 10.16 Counterparts. This Agreement may be
executed in any number of counterparts and by different parties
hereto on separate counterparts, each complete set of which, when
so executed and delivered by all parties, shall be an original, but
all such counterparts shall together constitute but one and the
same instrument.
Section 10.17 Headings, Bold Type and Index. The
section headings, subsection headings and bold type used herein and
the Index hereto have been inserted for convenience of reference
only and do not constitute matters to be considered in interpreting
this Agreement.
Section 10.18 Nonpetition Agreement. The Company hereby
agrees that it shall not institute against, or join any other
Person in instituting against GFC any bankruptcy, reorganization,
arrangement, insolvency, receivership or liquidation proceedings,
or other proceeding under any federal or state bankruptcy or
similar law, for one year and a day after the latest maturing
commercial paper note, medium term note or other debt security
issued by GFC is paid. The agreement of the Company set forth in
this Section 10.18 shall survive the termination of this Agreement
and the repayment of the Loan.
Section 10.19 GFC as Party. The parties hereto hereby
agreement that if GFC does not make the Loan pursuant to Section
2.1 hereof on the Loan Date, GFC shall thereupon automatically
cease to have any further rights or obligations under this
Agreement, except that (i) GFC shall retain its rights under
Section 10.18 and other rights of GFC or a Lender which survive
termination of this Agreement, and (ii) Section 10.18 of this
Agreement or provisions hereof affecting such rights may not
thereafter be amended in a manner adverse to GFC without the prior
written consent of GFC.
IN WITNESS WHEREOF, the parties hereto, by their officers
or representatives hereunto duly authorized, have executed this
Agreement as of the day and year first above written.
NATIONAL CONSUMER COOPERATIVE BANK
By _____________________________
Name:
Title:
By _____________________________
Name:
Title:
GREENWICH FUNDING CORPORATION
By Credit Suisse First Boston, New York
Branch, its attorney-in-fact
By _____________________________
Name:
Title:
By _____________________________
Name:
Title:
CREDIT SUISSE FIRST BOSTON,
NEW YORK BRANCH
By _____________________________
Name:
Title:
By _____________________________
Name:
Title:
<PAGE>
EXHIBIT A
FORM OF PROMISSORY NOTE
PROMISSORY NOTE
U.S. $20,000,000 Dated: , 1998
FOR VALUE RECEIVED, the undersigned, NATIONAL CONSUMER
COOPERATIVE BANK, a corporation organized under the laws of the
United States (the "Company"), hereby promises to pay to the order
of _________________________________ (the "Lender") the principal
amount of TWENTY MILLION DOLLARS ($20,000,000) on March 26, 2001.
The Company promises to pay interest from the date hereof
until the Maturity Date on the principal amount of this Promissory
Note from time to time outstanding at the per annum interest rate
of _____________________ PERCENT (______%), payable on each
Interest Payment Date. Interest shall be computed on the basis of
a year of 360 days consisting of 12 months of 30 days each and, in
the case of a portion of a month, for the actual number of days
(including the first and excluding the last) elapsed. Any
principal amount of this Promissory Note which is not paid on the
Maturity Date shall bear interest from the Maturity Date and until
paid in full at the Default Rate. In no event shall the rate of
interest borne by this Promissory Note at any time exceed the
maximum rate of interest permitted at that time under applicable
law.
Payments of the principal amount of and interest on this
Promissory Note shall be made in lawful money of the United States
of America to the Lender at the New York Branch of Credit Suisse
First Boston, Eleven Madison Avenue, New York, New York 10010 or at
such other place as the holder of this Note may designate in
writing to the Company.
This Promissory Note is the Note referred to in the Term
Loan Agreement, dated as of March 25, 1998 (the "Term Loan
Agreement"), among Greenwich Funding Corporation, Credit Suisse
First Boston, New York Branch, and the Company. The Term Loan
Agreement, among other things, contains provisions for optional
prepayments on account of the principal of this Promissory Note by
the Company and for acceleration of the maturity of this Promissory
Note upon the terms and conditions therein specified. Capitalized
terms used (but not defined) in this Promissory Note shall have the
meanings given to them in the Term Loan Agreement.
NATIONAL CONSUMER COOPERATIVE BANK
By:
Name:
Title:
By:
Name:
Title:
<PAGE>
SCHEDULE OF INTEREST
This Schedule of Interest attached to the Promissory Note
dated March 25, 1998 of NATIONAL CONSUMER COOPERATIVE BANK, payable
to the order of __________________________________ is, by specific
reference, incorporated in and made a part of the Promissory Note.
Interest Period Payment Date Payment Amount
FLEET LOAN AGREEMENT
AGREEMENT, made as of the 6th day of May, 1998, by and
between:
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");
and
FLEET BANK, N.A., a national banking association, ("Fleet");
W I T N E S S E T H :
WHEREAS:
(A) The Borrower, the banks signatory thereto (the "Banks")
and Fleet Bank, N.A., as Agent for itself and the Banks entered
into a certain Third Amended and Restated Loan Agreement dated as
of May 28, 1997 (as it may from time to time be amended,
restated, modified or supplemented, the "Banks' Loan Agreement")
pursuant to which the Banks made available to the Borrower a
revolving credit facility in the aggregate principal amount set
forth therein;
(B) The Borrower wishes to have available to it a line of
credit from Fleet in the principal amount of up to Fifty Million
($50,000,000) Dollars and Fleet is willing to make available to
the Borrower such a line of credit on the terms and conditions
hereinafter set forth; and
(C) Unless the context otherwise requires, all capitalized
terms used in this Agreement without definition that are defined
in the Banks' Loan Agreement shall have the meanings provided
therefor in the Banks' Loan Agreement. Certain terms used herein
are defined for the purposes of this Agreement in Article 1
below.
NOW, THEREFORE, the parties hereto agree as follows:
Article 1. Definitions.
As used in this Agreement, the following terms shall have
the following meanings:
Banks' Loan Agreement: as defined in Recital (A) hereof.
Fleet Commitment Fee: as defined in subsection 2.7(b)
hereof.
Fleet Credit Period: the period commencing on the date of
this Agreement and ending on the Fleet Credit Termination Date.
Fleet Credit Termination Date: August 31, 1998.
Fleet Fee: as defined in subsection 2.7(a) hereof.
Fleet Loans: as defined in Section 2.1 hereof.
Fleet Loan Documents: collectively, this Agreement, the
Fleet Note, and all other documents executed and delivered in
connection herewith or therewith, including all amendments,
modifications and supplements of or to all such documents.
Fleet Note: as defined in Section 2.4 hereof.
Line of Credit Availability: $50,000,000 as such amount may
be reduced from time to time pursuant to the terms of this
Agreement.
Obligations: all of the indebtedness, liabilities and
obligations of the Borrower to Fleet, whether now existing or
hereafter arising, under the Fleet Loan Documents.
Article 2. Fleet Loans.
Section 2.1 Fleet Loans.
Subject to the terms and conditions of this
Agreement, Fleet hereby agrees to hold available for the use of
the Borrower during the Fleet Credit Period (to and including the
Fleet Credit Termination Date), a line of credit (the "Line of
Credit") in an aggregate principal amount at any one time out
standing up to, but not exceeding, the Line of Credit Availabil
ity as then in effect. The Line of Credit shall consist of
short-term loans (individually, a "Fleet Loan" and, collectively,
the "Fleet Loans"). Subject to the terms of this Agreement and
the Banks' Loan Agreement, during the Fleet Credit Period the
Borrower may borrow, repay and reborrow up to the amount of the
Line of Credit Availability as then in effect by means of Prime
Rate Loans or LIBOR Loans (provided that repayment of LIBOR Loans
shall be subject to the provisions of Section 2.24 of the Banks'
Loan Agreement) and during such period the Borrower may convert
Fleet Loans of one type into Fleet Loans of another type (as
provided in Section 2.8 of the Banks' Loan Agreement).
Section 2.2 Notices Relating to Fleet Loans.
(a) The Borrower shall give Fleet written notice
of each borrowing, reborrowing, conversion and repayment of each
Fleet Loan and of the duration of each Interest Period applicable
to each LIBOR Loan (subject to subsection 2.2(b) below) and the
termination or reduction of the Line of Credit Availability (in
each case, a "Borrowing Notice"), all as provided in Section 2.3
of the Banks' Loan Agreement (provided that each reference in
such Section 2.3 to the "Agent" shall be deemed herein to be a
reference to Fleet).
(b) Notwithstanding anything to the contrary
contained in the Banks' Loan Agreement, the Interest Period(s)
applicable to the Fleet Loans hereunder shall, at the Borrower's
election, be seven (7) days (i.e. the One-Week Rate) or a one-
month Interest Period.
Section 2.3 Disbursement of Loan Proceeds.
The Borrower shall give Fleet notice of each
borrowing hereunder as provided in Section 2.2 hereof. Fleet
shall disburse such sums to the Borrower by depositing in immedi
ately available funds the amount thereof in an account of the
Borrower designated by the Borrower maintained with Fleet.
Section 2.4 Fleet Note.
The Fleet Loans shall be evidenced by a single
promissory note of the Borrower payable to the order of Fleet and
dated the date of this Agreement. The promissory note shall be
in the principal amount of Fifty Million ($50,000,000) Dollars
and shall be in the form of Exhibit A annexed hereto (the "Fleet
Note").
Section 2.5 Repayment of Principal of Fleet Loans.
The aggregate outstanding principal amount of the
Fleet Loans shall be payable, together with all accrued interest
thereon, in a single installment on the Fleet Credit Termination
Date.
Section 2.6 Interest.
(a) The Borrower shall pay to Fleet interest on
the unpaid principal amount of the Fleet Loans for the period
commencing on the date that each Fleet Loan is made until such
Fleet Loan is paid in full, at the following rates per annum:
(i) During the periods that such Fleet Loan
is a Prime Rate Loan, the Alternate Base Rate; and
(ii) During the periods that such Fleet Loan
is a LIBOR Loan, for each Interest Period relating thereto, the
LIBOR Rate for such Loan for such Interest Period plus .45%.
Notwithstanding the foregoing, the Borrower shall pay interest on
any Fleet Loan or any installment thereof, and on any other
amount payable by the Borrower hereunder 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. Accrued interest on the Fleet Loans shall be payable on
the dates set forth in the Banks' Loan Agreement.
(b) Anything in this Agreement or the Fleet Note
to the contrary notwithstanding, the obligation of the Borrower
to make payments of interest shall be subject to the limitation
that payments of interest shall not be required to be made to
Fleet to the extent that Fleet's receipt thereof would not be
permissible under the law or laws applicable to Fleet limiting
rates of interest which may be charged or collected by Fleet.
Any such payments of interest which are not made as a result of
the limitation referred to in the preceding sentence shall be
made by the Borrower to Fleet on the earliest interest payment
date or dates on which the receipt thereof would be permissible
under the laws applicable to Fleet limiting rates of interest
which may be charged or collected by Fleet. Such deferred
interest shall not bear interest.
Section 2.7 Fleet Fees.
(a) Simultaneously with the execution and deliv
ery of this Agreement, the Borrower shall pay to Fleet a facility
fee (the "Fleet Fee") as set forth in a separate written agree
ment between the Borrower and the Bank.
(b) The Borrower shall pay to Fleet a commitment
fee (the "Fleet Commitment Fee") on the amount of the Line of
Credit Availability from the date hereof to and including the
earlier of the date the Line of Credit Availability is terminated
or the Fleet Credit Termination Date, at the rate of .125% per
annum on the Line of Credit Availability. The accrued Fleet
Commitment Fee shall be payable quarterly commencing on July 31,
1998 and on the Fleet Credit Termination Date.
Section 2.8 Use of Proceeds of Fleet Loans.
The proceeds of the Fleet Loans shall be used by
the Borrower for general corporate and working capital purposes.
Section 2.9 Computations.
Interest on the Fleet Loans and the Fleet Commit
ment 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 payable.
Section 2.10 Minimum Amounts of Borrowings,
Conversions and Repayments.
Except for borrowings, conversions and repayments
which exhaust the full remaining amount of the Line of Credit
availability (in the case of borrowings) or result in the conver
sion or repayment of all Fleet Loans of a particular type (in the
case of conversions or repayments) or conversions made pursuant
to Section 2.23 of the Banks' Loan Agreement, each borrowing,
each conversion of Fleet Loans of one type into Fleet Loans of
another type and each repayment of principal of Fleet Loans here-
under shall be in an amount at least equal to One Million
($1,000,000) Dollars or a multiple of $1,000,000 (borrowings,
conversions and repayments of different types of Fleet Loans at
the same time hereunder to be deemed separate borrowings, conver
sions and repayments for purposes of the foregoing, one for each
type).
Section 2.11 Time and Method of 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 Fleet as set forth in the Banks' Loan Agreement (and
Fleet may, but shall not be obligated to, debit the amount of any
such payment that is not made as provided in the Banks' Loan
Agreement to any ordinary deposit account of the Borrower with
Fleet). Additional provisions relating to payments are set forth
in Section 10.3 of the Banks' Loan Agreement and are incorporated
by reference herein.
Section 2.12 Reductions in Line of Credit Availability.
The Borrower shall be entitled to reduce or termi-
nate the Line of Credit Availability provided that the Borrower
shall give notice of such reduction or termination to the Bank as
provided in Section 2.3 of the Banks' Loan Agreement and any
partial reduction of the Line of Credit Availability 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.
Section 2.13 Incorporation of Certain Provisions.
The provisions of Sections 2.19 through 2.24
inclusive of the Banks' Loan Agreement and all other sections of
the Banks' Loan Agreement to which such Sections 2.19 through
2.24 refer are hereby incorporated by reference as if the provi
sions thereof were set forth in full herein.
Article 3. Representations and Warranties.
The Borrower hereby represents and warrants to Fleet
that:
Section 3.1 Article 3 of Banks' Loan
Agreement; No Defaults.
(a) Each and every one of the representations and
warranties set forth in Article 3 of the Banks' Loan Agreement is
true in all respects as of the date hereof, except for changes in
the ordinary course of business, which, either singly or in the
aggregate, are not materially adverse to the business or finan
cial condition of the Borrower.
(b) As of the date hereof, there exists no Event
of Default under the Banks' Loan Agreement, and no event which,
with the giving of notice or lapse of time or both, would consti
tute such an Event of Default.
Section 3.2 Power, Authority, Consents.
The Borrower has the power to execute, deliver and
perform the Fleet Loan Documents to be executed by it. 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. The Borrower has taken
all necessary action, corporate or otherwise, to authorize the
execution, delivery and performance of the Fleet 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 Fleet Loan Documents.
Section 3.3 No Violation of Law or Agreements.
The execution and delivery by the Borrower of each
Fleet Loan Document and performance by it hereunder and thereun
der, will not violate any provision of law and will not, 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 certificate of incorporation
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 Fleet 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, insol
vency, 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 specif-
ic performance and other equitable remedies are subject to
judicial discretion.
Article 4. Conditions Precedent to the Fleet Loans.
The obligation of Fleet to make the Fleet Loans hereun
der shall be subject to the fulfillment (to the satisfaction of
Fleet) of the following conditions precedent:
(a) The Borrower shall have executed and delivered to
Fleet this Agreement and the Fleet Note.
(b) Fleet shall have received the Fleet Fee.
(c) Fleet shall have received a Compliance Certificate
from the Borrower dated the date hereof and the matters certified
therein, including, without limitation, that after giving effect
to the terms and conditions of this Agreement, no Default or
Event of Default shall exist, shall be true.
(d) Shea & Gardner, counsel to the Borrower, shall
have delivered its legal opinion to Fleet, in form and substance
satisfactory to Fleet and its counsel.
(e) Fleet shall have received copies of the following:
(i) All corporate action taken by the Borrower to
authorize the execution, delivery and performance of this Agree
ment, the Fleet Note and the transactions contemplated hereby,
certified by its secretary;
(ii) A certificate from the secretary of the
Borrower to the effect that the By-laws of the Borrower delivered
to Fleet Bank, N.A., as Agent pursuant to the Banks' Loan Agree
ment have not been amended since the date of such delivery and
that such document is in full force and effect and is true and
correct as of the date hereof; and
(iii) An incumbency certificate (with specimen
signatures) with respect to the Borrower.
(f) All legal matters incident hereto shall be satis
factory to Fleet and its counsel.
Article 5. Covenants.
From the date hereof and so long as this Agreement
shall be outstanding and until payment in full of all of the
Obligations, the Borrower agrees to comply with and perform each
and every covenant and condition set forth in Articles 5, 6 and 7
of the Banks' Loan Agreement, which Articles 5, 6 and 7 are
hereby incorporated herein by reference.
Article 6. Events of Default.
If any one or more of the following events ("Events of
Default") shall occur and be continuing, the entire unpaid
balance of the principal of and interest on the Fleet Note and
all other Obligations and indebtedness of the Borrower to Fleet
arising hereunder and under the other Fleet Loan Documents shall
immediately become due and payable upon written notice to that
effect given to the Borrower by Fleet (except that in the case of
the occurrence of any Event of Default described in Section 8.7
of the Banks' Loan Agreement, as such Section 8.7 is hereinafter
incorporated herein by reference, no such notice shall be re
quired), 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 in the case of the occurrence of an Event of Default de
scribed in Section 6.1 below, no such notice shall be required
after the passage of ten (10) days after the Grace Period pro
vided for therein:
Section 6.1 Payments.
Failure to make any payment of principal or
interest upon the Fleet Note or any fee pursuant to this Agree
ment within three (3) Business Days after the due date thereof
(the "Grace Period"); or
Section 6.2 Other Covenants.
Failure by the Borrower to perform or observe any
other term, condition or covenant of this Agreement or of any of
the other Fleet Loan Documents to which it is a party, which
shall remain unremedied for a period of fifteen (15) days after
notice thereof shall have been given to the Borrower by Fleet; or
Section 6.3 Other Events of Default.
An Event of Default (as defined in the Banks' Loan
Agreement) shall occur and be continuing under the Banks' Loan
Agreement, (provided in the event the Banks' Loan Agreement is
terminated for any reason whatsoever or the indebtedness thereun
der is paid in full, the covenants contained in Articles 5, 6 and
7 of the Banks' Loan Agreement and the Events of Default defined
in Article 8 of the Banks' Loan Agreement, together with the
definitions of all of the defined terms used therein and all
other portions of the Banks' Loan Agreement to which reference is
made in such Articles, will be incorporated by reference and the
same shall be applicable herein, mutatis mutandis, and will be
deemed to continue in effect until this Agreement is terminated
and all of the Obligations under this Agreement are fully paid
and performed).
Article 7. Miscellaneous Provisions.
Section 7.1 Miscellaneous Provisions
Incorporated by Reference.
The miscellaneous provisions under Article 10 of
the Banks' Loan Agreement and all other sections of the Banks'
Loan Agreement to which Article 10 refers are hereby incorporated
by reference as if the provisions thereof were set forth in full
herein.
Section 7.2 References in the Banks' Loan Agreement.
All references in the Banks' Loan Agreement to the
"Agent" or the "Banks", to the extent that such references are
incorporated herein, shall be deemed references hereunder to
Fleet.
Section 7.3 Incorporation of Banks' Loan Agreement.
Any term or provision of the Banks' Loan Agree
ment, as in effect on the date of this Agreement, which has been
incorporated herein by reference and which is hereafter amended
or modified, shall unless the parties hereto otherwise agree in
writing, automatically be incorporated herein as so amended, from
and after the effective date of any such amendment, without the
necessity of the execution and delivery of any instrument or
document or the taking of any action.
Section 7.4 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 7.5 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 Fleet and its successors and assigns. The rights and obliga-
tions of the Borrower under this Agreement shall not be assigned
or delegated without the prior written consent of Fleet, and any
purported assignment or delegation without such consent shall be
void.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the date first above written.
NATIONAL CONSUMER COOPERATIVE BANK,
D/B/A NATIONAL COOPERATIVE BANK
By:________________________________
Title
FLEET BANK, N.A.
By
Title
<PAGE>
EXHIBIT A
TO FLEET LOAN AGREEMENT
BY AND BETWEEN
NATIONAL CONSUMER COOPERATIVE BANK
AND
FLEET BANK, N.A.
FORM OF FLEET NOTE
$50,000,000 Due August 31, 1998
New York, New York
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") the principal
sum of FIFTY MILLION ($50,000,000) DOLLARS (or such lesser amount
as shall equal the aggregate unpaid principal amount of the Fleet
Loans made by the Bank under the Loan Agreement hereinafter
defined, shown on the schedule annexed hereto and any continua
tion thereof), in lawful money of the United States of America
and in immediately available funds on the date or dates deter
mined as provided in the Loan Agreement but in no event later
than August 31, 1998.
The Borrower further promises to pay to the order of the
Bank interest on the unpaid principal amount of each Fleet Loan
from the date such Fleet 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 schedule annexed to this Note (or on any continuation
thereof) the amount, type, due date and interest rate of each
Fleet Loan made by the Bank under the Loan Agreement and the
amount of each payment or repayment of principal and the amount
of each payment of interest of each such Fleet 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 Fleet Loans. Such notations shall be deemed
correct, absent manifest error.
This Note is the Fleet Note referred to in the Fleet Loan
Agreement dated as of the date hereof (the "Loan Agreement")
between the Borrower and the Bank and evidences the Fleet Loans
made by the Bank thereunder. 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 repay all or any part of the
principal of this Note before maturity upon and subject to the
terms provided in the Loan Agreement.
The Borrower agrees to pay costs of collection and reason-
able attorneys' fees in case default occurs in the payment of
this Note.
Presentment for payment, notice of dishonor, protest and
notice of protest are hereby waived.
This Note has been executed and delivered this 6th day of
May, 1998 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:________________________________
Title
<PAGE>
SCHEDULE TO FLEET NOTE
MADE BY NATIONAL CONSUMER COOPERATIVE BANK
IN FAVOR OF FLEET BANK, N.A.
This Note evidences the Fleet 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 repayments set forth below:
Date Made Prin. Amt. Type Due Date Int. Rate Amt. of
or of of of on Payment or Balance Notation
Converted Loan Loan Loan Loan Repayment Outstanding made by
<TABLE> <S> <C>
<ARTICLE> 9
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-END> MAR-31-1998
<CASH> 1,647,997
<INT-BEARING-DEPOSITS> 14,747,153
<FED-FUNDS-SOLD> 12,027,512
<TRADING-ASSETS> 0
<INVESTMENTS-HELD-FOR-SALE> 58,547,126
<INVESTMENTS-CARRYING> 1,942,312
<INVESTMENTS-MARKET> 0
<LOANS> 758,237,889
<ALLOWANCE> 18,049,461
<TOTAL-ASSETS> 861,205,732
<DEPOSITS> 90,542,835
<SHORT-TERM> 195,664,384
<LIABILITIES-OTHER> 25,461,308
<LONG-TERM> 414,376,005
0
0
<COMMON> 105,909,249
<OTHER-SE> 568,318
<TOTAL-LIABILITIES-AND-EQUITY> 861,205,732
<INTEREST-LOAN> 15,861,732
<INTEREST-INVEST> 1,514,742
<INTEREST-OTHER> 0
<INTEREST-TOTAL> 17,376,638
<INTEREST-DEPOSIT> 991,332
<INTEREST-EXPENSE> 10,523,596
<INTEREST-INCOME-NET> 6,853,042
<LOAN-LOSSES> 352,879
<SECURITIES-GAINS> 0
<EXPENSE-OTHER> 6,222,125
<INCOME-PRETAX> 5,801,936
<INCOME-PRE-EXTRAORDINARY> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 5,508,936
<EPS-PRIMARY> 20.81
<EPS-DILUTED> 20.81
<YIELD-ACTUAL> 3.29
<LOANS-NON> 5,737,676
<LOANS-PAST> 10,573
<LOANS-TROUBLED> 1,021,684
<LOANS-PROBLEM> 0
<ALLOWANCE-OPEN> 17,638,136
<CHARGE-OFFS> 7,210
<RECOVERIES> 65,656
<ALLOWANCE-CLOSE> 18,049,461
<ALLOWANCE-DOMESTIC> 0
<ALLOWANCE-FOREIGN> 0
<ALLOWANCE-UNALLOCATED> 18,049,461
</TABLE>
