EXECUTION COPY
TERM LOAN AGREEMENT
THIS TERM LOAN AGREEMENT (this "Agreement") is made and entered into
as of the 5th day of November, 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); provided that, in any event: (i)
any Person which owns directly or indirectly securities having 5% or more
of the ordinary voting power for the election of directors or other
governing body of a corporation or 5% or more of the partnership or other
ownership interests of any other Person (other than as a limited partner
of such other Person) will be deemed to control such corporation or other
Person; and (ii) each 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 non-
recourse 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); and
(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.
"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 November 5, 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 statements 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 25th day of February, May,
August and November of each year, beginning February, 1999, or, if any
such day is not a Business Day, the next succeeding Business Day.
"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 Xxxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, 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 November 9, 1998.
"Maturity Date" is defined in Section 2.2.
"Xxxxx'x" means Xxxxx'x 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 xxxxxxx'x 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) 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; (ii) 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; (iii)
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 (iv)
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 and $20,000,000 in
6.22% Senior Notes due February 3, 2004..
"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 February 10, 2002 (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 5.68% 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, provided that
the Company shall not be required to deliver a copy of any such document
if it has previously delivered a certified copy of such document to the
Lender.
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 nonassessable. 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 proceedings 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 Subsidiaries 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, assess-
ments 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
regardless 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)
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) 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) and (g),
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 condi-
tion, 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 Xxxxx'x
or Duff-2 issued by Duff & Xxxxxx 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 Xxxxx'x;
(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,
Xxxxx'x or Xxxx & Xxxxxx 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, Xxxxx'x or Duff & Xxxxxx 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;
(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;
and
(xv) "Equity Investments" provided that (i) the
aggregate amount of such Equity Investments (on a cumulative basis)
does not exceed an amount equal to ten (10%) percent of Consolidated
Adjusted Net Worth as at any date of determination thereof, after
giving effect to any such Equity Investment, and (ii) no single
Equity Investment in any Person shall be greater than $2,000,000.
For purposes hereof, "Equity Investment(s)" shall mean the amount
paid or committed to be paid in connection with the acquisition of
any stock (common or preferred) or other equity securities of any
Person or any obligation convertible into or exchangeable for a
right, option or warrant to acquire such equity securities.
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 a
fter 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
0000 Xxx Xxxxxx, X.X. - Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Attention: Treasurer
Telecopy: (000) 000-0000
with a copy to:
Xxxx & Xxxxxxx
0000 Xxxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxxx X. Xxxxx, Esq.
Telecopy: 000-000-0000
and if to the Lender, to it at:
Credit Suisse First Boston
New York Branch
Eleven Madison Avenue
New York, New York 10010
Attention: Xxx Xxxxx
Telecopy: (000) 000-0000
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 XXX 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 agree 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:
EXHIBIT A
FORM OF PROMISSORY NOTE
PROMISSORY NOTE
U.S. $20,000,000 Dated: November 9, 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 GREENWICH FUNDING CORPORATION
(the "Lender") the principal amount of TWENTY MILLION DOLLARS ($20,000,000) on
February 10, 2002.
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 FIVE AND 68/100 PERCENT (5.68%),
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 November 5, 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:
SCHEDULE OF INTEREST
This Schedule of Interest attached to the Promissory Note dated
November 9, 1998 of NATIONAL CONSUMER COOPERATIVE BANK, payable to the order of
GREENWICH FUNDING CORPORATION, is, by specific reference, incorporated in and
made a part of the Promissory Note.
Interest Period Payment Date Payment Amount
