FORBEARANCE AGREEMENT
Exhibit 10.2
This Forbearance Agreement (this “Agreement”) is dated as of August 14, 2009 by and
among National Consumer Cooperative Bank, D/B/A National Cooperative Bank (“Borrower”),
SunTrust Bank, as administrative agent (in such capacity, “Administrative Agent”), and the
Banks (as defined below) signatory hereto.
W I T N E S S E T H:
WHEREAS, pursuant to that certain Credit Agreement, dated as of May 1, 2006 (as amended,
restated, supplemented, or otherwise modified from time to time, the “Credit Agreement”),
by and among Borrower, Administrative Agent, PNC Bank, National Association and Wachovia Bank,
National Association, as co-syndication agents (“Syndication Agents”), Calyon New York
Branch and Union Bank of California, N.A., as co-documentation agents (“Documentation
Agents”), SunTrust Capital Markets, Inc., as lead arranger and book manager
(“Arranger”; Administrative Agent, Syndication Agents, Documentation Agents and Arranger
are each an “Agent” and are, collectively, the “Agents”), and the lenders party
thereto from time to time (collectively, “Banks”), Banks have made certain loans and
financial accommodations to Borrower;
WHEREAS, Borrower has notified Administrative Agent that certain Defaults and Events of
Default have occurred and are continuing under the Credit Agreement as a result of (a) Borrower’s
failure to maintain (i) the ratio of Consolidated Earnings Available for Fixed Charge to
Consolidated Fixed Charges as required under Section 6.9(b) of the Credit Agreement for the period
ended June 30, 2009, (ii) the ratio of Consolidated Debt to Consolidated Adjusted Net Worth as
required under Section 6.9(c) of the Credit Agreement for the period ended June 30, 2009, (iii) the
ratio of Nonperforming Assets to Total Loans as required under Section 6.9(e) of the Credit
Agreement for the period ended May 31, 2009 and (iv) the Return on Average Assets as required under
Section 6.9(g) of the Credit Agreement as of June 30, 2009, (b) Events of Default under Section 8.5
of the Credit Agreement with respect to Borrower’s failure to perform its obligations under the
Senior Note Agreement, and (c) Borrower’s failure to promptly notify Administrative Agent in
writing of the foregoing pursuant to Section 6.7(a) of the Credit Agreement (collectively, the
“Existing Events of Default”). No other Default or Event of Default is, or shall be deemed
to be, an Existing Event of Default;
WHEREAS, Borrower has requested that Administrative Agent and Banks forbear from exercising
remedies with respect to the Existing Events of Default as set forth herein; and
WHEREAS, on and subject to the terms and conditions set forth herein, Administrative Agent and
Banks have agreed to forbear from exercising remedies with respect to the Existing Events of
Default.
NOW, THEREFORE, in consideration of the premises set forth above, the terms and conditions
contained herein and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
1. Capitalized Terms. Each capitalized term used but not defined herein shall have
the meaning ascribed to such term in the Credit Agreement.
2. Events of Default and Forbearance. Administrative Agent and Banks hereby agree as
of the Effective Date (defined below) to forbear from exercising the Enforcement Actions (defined
below) solely with respect to the Existing Events of Default until the earliest to occur of any of
the following (each, a “Termination Event”): (a) the occurrence of a breach or default
under this Agreement; (b) the occurrence of a Default or Event of Default that does not constitute
an Existing Event of Default; (c) the acceleration of all or any part of the Indebtedness
outstanding under the Senior Notes or the Senior Note Agreement, any enforcement action with
respect to the Senior Notes or upon payment by Borrower of any principal under the Senior Notes;
(d) termination or amendment of any forbearance agreement entered into with the requisite holders
of the Senior Notes or any other failure of any such agreement to continue to be in full force and
effect; and (e) November 16, 2009 (the earliest date of occurrence of any Termination Event, the
“Forbearance Termination Date”). The time period from the Effective Date to the
Forbearance Termination Date is the “Forbearance Period.” Borrower acknowledges and agrees
that upon the Forbearance Termination Date, the forbearance provided under this Section 2
shall terminate and Administrative Agent and Banks shall have the right to exercise any and all
rights and remedies to the extent provided under Article 8 of the Credit Agreement or
otherwise under the Loan Documents or under applicable law or at equity (collectively, the
“Enforcement Actions”) due to the Existing Events of Default or any other Event of Default
that has occurred and is continuing. Borrower hereby further acknowledges and agrees that from and
after the Forbearance Termination Date, Administrative Agent and Banks shall be under no obligation
of any kind whatsoever to forbear from exercising any remedies on account of the Existing Events of
Default or any other Event of Default (whether similar or dissimilar to the Existing Events of
Default).
Borrower hereby further acknowledges and agrees that during the Forbearance Period,
Administrative Agent and Banks have no obligation to make any Loans to, or on behalf of, Borrower.
The foregoing notwithstanding, if and to the extent that Administrative Agent or any Bank continue
to make Revolving Loans, notwithstanding the occurrence of any Default or Event of Default, whether
the Existing Events of Default or otherwise, (a) such Revolving Loans shall be made, issued, caused
to be issued, or executed, as applicable, in Administrative Agent’s and such Bank’s sole and
absolute discretion, and (b) no such action shall be construed as (i) a waiver or forbearance of
any of Administrative Agent’s and Banks’ rights, remedies, and powers against Borrower, NCBFC or
the Collateral (including, without limitation, the right to terminate without notice, the making of
Revolving Loans) or (ii) a waiver of any such Default or Event of Default or the Existing Events of
Default.
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3. Forbearance Covenants by Borrower. As a material inducement to the execution by
Administrative Agent and the undersigned Banks of this Agreement, each
Borrower hereby agrees that it shall comply with each of the following covenants and that the
failure to comply with any of such covenants shall constitute an immediate default under this
Agreement and an immediate Event of Default under the Credit Agreement, which shall not be a
Existing Event of Default, and shall result in the immediate termination of the forbearance by
Banks as provided under Section 2 of this Agreement:
(a) Borrower shall maintain a minimum Cash balance of $60 million at all times during the
Forbearance Period, unless otherwise consented to in writing by Majority Banks;
(b) At all times during the Forbearance Period, Borrower shall maintain a ratio of
Nonperforming Assets of Borrower and its Subsidiaries to Total Loans (excluding letters of credit)
of not greater than 0.075:1.0;
(c) as soon as available, but not later than 30 days following the Effective Date, a runoff
analysis of Borrower’s loan portfolio updated as of July 31, 2009, including projections to and
through the date the Loans are paid in full;
(d) Commencing by 4:00 p.m. (Eastern time) on August 19, 2009 and by 4:00 p.m. (Eastern time)
each Wednesday thereafter, Borrower shall deliver to Administrative Agent, or its designated
advisors, a Cash balance report as of close of business (Eastern time) on Friday of the previous
week;
(e) Commencing by 4:00 p.m. (Eastern time) on August 21, 2009 and by 4:00 p.m. (Eastern time)
each Friday thereafter, Borrower shall deliver to Administrative Agent, or its designated advisors,
a 13-week rolling cash flow forecast together with a detailed variance report with respect to the
previous 13-week rolling cash flow forecast delivered, which shall be in the form attached hereto
as Exhibit A;
(f) on the day that is 30 days following the end of each calendar month, draft monthly
financial statements including balance sheets, statements of income and statements of shareholders
equity, and on the date that is 45 days following the end of each calendar month, final copies of
such monthly financial statements;
(g) Borrower shall prepare and deliver to each of Administrative Agent and Banks, in form and
detail reasonably satisfactory to Banks, such additional information (including information
provided by Borrower to its other creditors) regarding the assets, liabilities, business and
financial condition of Borrower, NCBFC and their respective subsidiaries (and projections relating
thereto) as shall be reasonably requested by Administrative Agent or Banks;
(h) On or before September 15, 2009, Borrower shall deliver to Administrative Agent, or its
designated advisors, a plan of restructuring, which shall include, but shall not be limited to,
liquidity projections and needs, proposed designations and timing of asset dispositions, and any
projected capital raises (the “Restructuring Plan”);
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(i) On or before September 18, 2009 (but following the delivery of the Restructuring Plan),
Borrower shall meet with Administrative Agent and Banks to discuss the Restructuring Plan;
(j) During the Forbearance Period, Borrower (i) shall not make any voluntary capital
contribution to the Thrift (whether directly or through NCBFC) without the prior written consent of
Majority Banks and (ii) shall, notwithstanding the limitation in Section 7.9(xiii) of the Credit
Agreement or 5M of the Senior Note Agreement, be permitted to make a capital contribution expressly
requested by the Office of Thrift Supervision or other Governmental Authority to the Thrift
(whether directly or through NCBFC) in an aggregate amount up to $10 million without the prior
written consent of Majority Banks; provided that Borrower remains in compliance with Section 3(a)
above;
(k) During the Forbearance Period, Borrower shall not open any new depository account,
securities account or investment account unless such account shall be maintained at one or more of
the Banks;
(l) Within thirty (30) days of the Effective Date, Borrower will enter into account control
agreements among the Collateral Agent (as defined in the Intercreditor Agreement), Borrower and the
applicable depository institution, in form and substance reasonably satisfactory to the Collateral
Agent, with respect to each of Borrower’s deposit accounts, investment accounts and securities
accounts (in each case, except with respect to Excluded Accounts (as defined in the Security
Agreement)) held at any bank or financial institution other than Banks.
(m) Borrower shall allow full access to its books and records, inspection of its facilities
and access to its officers, employees, independent certified public accountants, pursuant to and
consistent with Section 6.2 of the Credit Agreement for Administrative Agent, Banks and their
advisors, it being understood that Borrower and/or its financial advisor shall have the opportunity
to be present for any discussions with the independent certified public accountants.
4. Acknowledgements.
(a) Acknowledgement of Obligations. Borrower hereby acknowledges, confirms and agrees
that as of the close of business on August 12, 2009, Borrower was indebted to Administrative Agent
and Banks for Loans and other financial accommodations under the Loan Documents in the following
principal amounts:
| Revolving Loans: | $165,000,000.00 plus accrued interest thereon plus accrued and unpaid fees, costs and expenses due and owing under the Loan Documents | |||
| Letters of Credit: | $417,268.00 plus accrued and unpaid fees, costs and expenses due and owing under the Loan Documents |
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All such obligations under the Credit Agreement owing by Borrower together with interest
accrued and accruing thereon, and all fees, costs, expenses and other charges now or hereafter
payable by Borrower to Administrative Agent and each Bank, are unconditionally owing by Borrower to
each Bank, without offset, defense or counterclaim of any kind, nature or description whatsoever.
(b) Acknowledgement of Payment of Costs and Fees. Borrower hereby acknowledges,
confirms and agrees that Borrower shall pay to Administrative Agent and each Bank all reasonable
and documented costs, fees, expenses and charges of every kind in connection with the preparation,
negotiation, execution and delivery of this Agreement and any documents and instruments relating
hereto.
(c) Acknowledgement of Security Interests. Borrower hereby acknowledges, confirms and
agrees that Collateral Agent, for itself and the benefit of the Secured Creditors (as defined in
the Security Agreement), has and shall continue to have valid, enforceable and perfected
first-priority liens (subject to Permitted Liens and Liens permitted pursuant to Section 7.2 of the
Credit Agreement) upon and security interests in the Collateral granted to Collateral Agent, for
itself and the benefit of the Banks, pursuant to the Loan Documents or otherwise granted to or held
by Collateral Agent, for itself and the benefit of the Secured Creditors (as defined in the
Security Agreement).
(d) Acknowledgment of No Bank Obligations. Borrower hereby acknowledges, confirms and
agrees that as a result of the Existing Events of Default, Administrative Agent and Banks have no
obligations to make, issue or otherwise provide any Loans or other financial accommodations to
Borrower.
(e) Acknowledgment of Interest Rates. Borrower hereby acknowledges, confirms and
agrees that as a result of the Existing Events of Default (i) upon expiration of the applicable
Interest Period in effect for any LIBOR Loans, such LIBOR Loans shall become Base Rate Loans,
(ii) no Base Rate Loans may be converted into LIBOR Loans and (iii) Section 8(a) below shall be
applicable with respect to all Base Rate Loans.
(f) Binding Effect of Documents. Borrower hereby acknowledges, confirms and agrees
that: (i) each of the Loan Documents to which it is a party has been duly executed and delivered
to Administrative Agent and Banks thereto by Borrower, and each is in full force and effect as of
the Forbearance Effective Date (except to the extent set forth therein), (ii) the agreements and
obligations of Borrower contained in the Loan Documents and in this Agreement constitute the legal,
valid and binding obligations of Borrower, enforceable against Borrower in accordance with their
respective terms, and Borrower has no valid defense to the enforcement of the obligations under the
Credit Agreement, except as may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium, or other similar laws, now or
hereafter in effect, relating to or affecting creditor rights and subject to equitable principles
and (iii) Administrative Agent and each Bank are and shall be entitled to the rights, remedies and
benefits provided for in the Loan Documents and under applicable law or at equity.
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5. Representations and Warranties. Borrower hereby represents and warrants in favor
of Administrative Agent and each Bank as follows:
(a) The execution, delivery and performance by Borrower of this Agreement are within
Borrower’s powers and have been duly authorized by all necessary action on the part of Borrower;
(b) This Agreement has been duly executed and delivered by Borrower and constitutes a legal,
valid and binding obligation of Borrower enforceable in accordance with its terms, except as may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium, or other similar laws,
now or hereafter in effect, relating to or affecting creditor rights and subject to equitable
principles;
(c) The execution and delivery of this Agreement and performance by Borrower under the Credit
Agreement, as amended from time to time, (i) do not require any consent or approval of,
registration or filing with, or any other action by, any Governmental Authority, (ii) will not
violate the articles or certificate of incorporation, certificate of organization or limited
partnership, or other registered organizational documents of Borrower, (iii) will not violate any
requirement of law except for violation that could not reasonably be expected to have a Material
Adverse Effect, and (iv) will not violate or result in a default or require any consent or approval
under any indenture, agreement or other instrument binding upon Borrower or its property, or give
rise to a right thereunder to require any payment to be made by Borrower, except for violations,
defaults or the creation of such rights that could not reasonably be expect to have a Material
Adverse Effect;
(d) The representations and warranties set forth in Sections 3.8, 3.9,
3.10, and 3.11 of the Notes Forbearance Agreement are hereby incorporated herein by
reference as if made to Administrative Agent and each Bank in all respects; and
(e) Other than the Existing Events of Default, no event has occurred or is continuing, that
would constitute a Default or an Event of Default under the Credit Agreement or any other Loan
Documents.
6. Advice of Counsel. Borrower acknowledges that Borrower (a) has been advised by
Administrative Agent to engage independent counsel of its own choosing to obtain legal advice with
respect to this Agreement, (b) has obtained, or has had every opportunity to obtain, legal advice
from independent counsel of its own choosing with respect to this Agreement (and to the extent it
has chosen not to obtain legal advice of its own counsel, this choice was made freely and in
knowing contradiction of the suggestion of Administrative
Agent), (c) has read this Agreement in full and final form, and (d) has had this Agreement
fully explained to it to its satisfaction.
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7. Limitations. Except for the forbearance and other modifications expressly set
forth herein, the Credit Agreement and all other existing Loan Documents shall remain unchanged and
in full force and effect and Administrative Agent and each Bank expressly reserve the right to
require strict compliance with the terms of the Credit Agreement and the other Loan Documents. The
forbearance contained herein is limited to the precise terms hereof, and none of Administrative
Agent or any Bank is obligated to consider or consent to any additional request by Borrower for any
other forbearance with respect to the Credit Agreement.
8. Forbearance Fees.
(a) Notwithstanding anything to the contrary contained in the Credit Agreement, during the
Forbearance Period, all Obligations shall accrue interest at a rate per annum equal to the Base
Rate plus 3.00%.
(b) As consideration for Administrative Agent’s and Banks’ agreement to forbear from taking
any Enforcement Action during the Forbearance Period, Borrower shall pay to Administrative Agent on
the Effective Date, on behalf of Banks, a forbearance fee (“Forbearance Fee”) in the amount
of $412,500, which shall be fully earned on the Effective Date and shall be allocated pro rata
among Banks that execute this Agreement in accordance with each Bank’s Pro Rata Share.
9. Conditions to Effectiveness of this Agreement. This Agreement shall be deemed
effective as of August 14, 2009 (the “Effective Date”), provided that all the following
conditions have been satisfied, as determined in Administrative Agent’s and Majority Banks’ sole
and absolute discretion, on or before the Effective Date:
(a) Administrative Agent shall have received, in form and substance satisfactory to
Administrative Agent, duly executed counterparts of this Agreement from Borrower and the Majority
Banks on or before the Effective Date;
(b) Administrative Agent shall have received on or before the Effective Date an executed
forbearance agreement between Borrower and the requisite holders of the Senior Notes in form and
substance satisfactory to Administrative Agent and Majority Banks (the “Notes Forbearance
Agreement”);
(c) Borrower shall have paid all reasonable and documented fees, costs and expenses incurred
in connection with this Agreement and any other Loan Documents that have been invoiced and are
required to be paid hereunder or under the Credit Agreement (including, without limitation, the
Forbearance Fee and legal fees and expenses);
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(d) On or before the Effective Date, Borrower shall have transferred a retainer of $200,000 to
FTI Consulting, Inc. and a retainer of $200,000 to Paul, Hastings,
Xxxxxxxx & Xxxxxx, LLP, in each case pursuant to the terms of the retainer letter, dated
August 14, 2009, by Administrative Agent to Borrower; and
(e) The representations and warranties made or deemed made by Borrower under this Agreement
shall be true and correct in all material respects.
10. Effect on the Loan Documents. (a) The Credit Agreement and each of the other Loan
Documents shall be and remain in full force and effect in accordance with their respective terms
(except as expressly modified hereby) and hereby are ratified and confirmed in all respects. The
execution, delivery, and performance of this Agreement shall not operate, except as expressly set
forth herein, as a modification or waiver of any right, power, or remedy of Administrative Agent or
any Bank under the Credit Agreement or any other Loan Document. The waivers, consents, and
modifications herein are limited to the specifics hereof, shall not apply with respect to any facts
or occurrences other than those on which the same are based, shall not excuse future non-compliance
with the Loan Documents, and shall not operate as a consent to any further or other matter under
the Loan Documents. To the extent any provision in the Loan Documents restricts or otherwise
prohibits certain acts by any Loan Party during an Event of Default, those provisions shall remain
in full force and effect and are not waived, modified or excused unless specifically provided for
in this Agreement.
(b) Upon and after the Effective Date, each reference in the Credit Agreement to “this
Agreement,” “hereunder,” “herein,” “hereof” or words of like import referring to the Credit
Agreement, and each reference in the other Loan Documents to “the Credit Agreement,” “thereunder,”
“therein,” “thereof” or words of like import referring to the Credit Agreement, shall mean and be a
reference to the Credit Agreement as modified hereby.
(c) Upon and after the Effective Date and until further notice, Borrower shall pay all
interest due under the Credit Agreement on a monthly basis, with the first monthly interest payment
due September 1, 2009, and on the first day of each month thereafter.
(d) During the Forbearance Period, Borrower shall not be required to comply with the financial
covenants set forth in Sections 6.9(a)-(e) and (g) of the Credit Agreement.
(e) During the Forbearance Period, notwithstanding anything to the contrary in the Loan
Documents, if any Governmental Authority having regulatory authority over Borrower or any
Subsidiary shall take any action or issue any order or notice of the type set forth in Section 8.11
of the Credit Agreement, such action, order or notice shall not be deemed an Event of Default so
long as it may be cured or complied with without violating the terms and conditions of this
Agreement or any other Loan Document.
(f) To the extent that any terms and conditions in any of the Loan Documents shall contradict
or be in conflict with any terms or conditions of the Credit Agreement, after giving effect to this
Agreement, such terms and conditions are hereby deemed
modified or amended accordingly to reflect the terms and conditions of the Credit Agreement as
modified hereby.
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11. Most Favored Lender Clause. On the Effective Date, each negative and affirmative
covenant (together with any defined terms and schedules related thereto) imposed under or in
connection with the Senior Notes Agreement or the Notes Forbearance Agreement, is hereby
incorporated into this Agreement and shall apply as if fully set forth herein, except as may be
amended, suspended or otherwise modified pursuant to the Notes Forbearance Agreement. If, after
the Effective Date, any holder of the Senior Notes or other holder of Indebtedness of Borrower or
any Subsidiary (a) imposes any additional negative or affirmative covenant or event of default
(including by amendment of an existing negative or affirmative covenant or event of default, by
waiver or consent or otherwise) that is more restrictive on Borrower or any Subsidiary (or more
favorable to such Bank or other holder of Indebtedness) than the covenants or events of default
contained in this Agreement or the Credit Agreement, or (b) increases the amount of any fees,
interest and/or other economic consideration to such Creditor or other holder of Indebtedness, or
(c) adds additional fees, interest and/or other economic consideration to such Creditor or other
holder of Indebtedness, then Borrower shall promptly notify Agent and each Bank and (irrespective
of such notification) this Agreement and the Credit Agreement shall be deemed to be amended
automatically to incorporate such additional, more restrictive or more favorable covenant, event of
default or other provision (together with any defined terms and schedules related thereto) as of
such date. Notwithstanding the foregoing, (y) the subsequent amendment, modification, release or
termination of any such covenant, event of default or other provision in such other document or
agreement shall not operate to amend, modify, release or terminate such covenant, event of default,
additional fees, interest or other economic consideration or other provision as incorporated into
the Credit Agreement pursuant hereto without the consent of Majority Banks and (z) no provision
shall be incorporated by reference herein to the extent that it would be more favorable to
Borrower, or less favorable to Banks, than any provision of this Agreement or the Credit Agreement
that would be operative absent such incorporation.
12. Sharing Provisions under the Intercreditor Agreement. As of the date hereof, a
Trigger Event (as defined in that certain Intercreditor and Collateral Agency Agreement dated as of
April 30, 2009 by and among Administrative Agent, in its capacity as collateral agent and
administrative agent under the Credit Agreement, and each of the Lenders and Noteholders signatory
thereto (as amended, restated, supplemented or otherwise modified from time to time, the
“Intercreditor Agreement”)) has occurred and SunTrust Bank, as Administrative Agent, has
provided the required notice under Section 3(b) of the Intercreditor Agreement to implement the
sharing provisions contained in Section 3 of the Intercreditor Agreement. Notwithstanding anything
to the contrary contained in the Intercreditor Agreement, the Administrative Agent and the Banks
hereby agree that “Shared Payments” (as defined in the Intercreditor Agreement) shall not include
any payments of interest in respect of the Secured Obligations (as defined in the Intercreditor
Agreement) or any fees in respect of the Financing Agreements (as defined in the Intercreditor
Agreement); provided that such agreement is expressly conditioned upon the continued agreement of
such arrangement by the holders of the Senior Notes.
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13. Mandatory Prepayments.
(a) The provisions of Section 4.4(a) of the Notes Forbearance Agreement are hereby
incorporated herein by reference as if made in favor of Administrative Agent and each Bank in all
respects.
(b) Borrower shall make no optional prepayments to the Lenders unless Borrower concurrently
makes a ratable payment to all of the holders of the Senior Notes in accordance with the terms of
sections 3(b) and 7(a) of the Intercreditor Agreement.
14. Restricted Payments, Investments and Loans. The provisions of Sections 4.7, 4.8
and 4.9 of the Notes Forbearance Agreement are hereby incorporated herein by reference as if made
in favor of Administrative Agent and each Bank in all respects.
15. Amendments to Senior Note Agreement, etc. Until the termination of any
forbearance or waiver period under the Notes Forbearance Agreement, Borrower shall not, without the
written consent of Majority Banks, except as contemplated by the Notes Forbearance Agreement, enter
into any amendment of, or modification or supplement to, the Senior Note Agreement, the Notes
Forbearance Agreement, or any related agreements, or enter into any other agreements with any of
the Noteholders or the Trustee with respect to the Senior Note Agreement or the Notes Forbearance
Agreement, that would have the direct or indirect effect of any of the following: shortening the
date of maturity of any loan or note, increasing the stated principal amount of any loan or note or
adding to such amounts, adding to or making more onerous the conditions for issuing letters of
credit, accelerating the time or increasing the amount of payment of principal, interest or other
amounts (other than as required herein), increasing the interest rate or effective interest rate on
any Indebtedness (whether by changing a contractual or default rate, changing a reference or base
rate (other than normal fluctuations in such rate as may be contemplated by changes in the
reference rates in the Senior Note Agreement) or by changing an interest rate spread above a
reference rate), increasing the amount of or imposing additional fees or costs, or adding covenants
or other restrictions or making more onerous existing covenants.
16. No Fees, etc. None of Borrower, its Subsidiaries, NCBFC or their respective
subsidiaries or affiliates has paid or will pay, directly or indirectly, any work fee,
administrative agent’s fee or any other fee, charge, increased interest, premium or other
consideration to, or has given or will give any additional security or collateral to, or has
shortened or will shorten the maturity or average life of any Indebtedness or permanently reduced
any borrowing capacity in favor of or for the benefit of, any creditor of Borrower, any creditor of
any Affiliate or any agent acting for or on behalf of any such creditors with respect to the Senior
Note Agreement in connection with or as an inducement to enter into the Notes Forbearance Agreement
or similar agreement, other than the fees and payments described in the Notes Forbearance Agreement
(including any fees to counsel and financial advisors) and the forbearance fee described herein in
each case payable under the terms of, and as disclosed in, the Notes Forbearance Agreement.
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17. Meetings. Borrower, NCBFC and their respective senior management and advisors
shall make themselves available for such periodic meetings as Banks and Banks’ attorneys and
advisors may reasonably request, to take place at mutually convenient times, in person or by
telephone with representatives of Banks and Banks’ attorneys and advisors and any financial or
other advisor or consultant to the Company and NCBFC, to discuss the Company’s and the NCBFC’s
business operations and such other matters as such representatives may reasonably request.
18. Further Assurances. Borrower and NCBFC will cooperate with Administrative Agent
and Banks and execute such further instruments and documents as the Administrative Agent and Banks
shall reasonably request to carry out to their satisfaction the transactions contemplated by this
Agreement.
19. Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
20. Loan Document . This Agreement shall be deemed to be a Loan Document for all
purposes.
21. RELEASE BY BORROWER AND NCBFC. Effective on the date hereof, each of Borrower and
NCBFC hereby waives, releases, remises and forever discharges Administrative Agent, each other
Agent, each Bank, each of the other Secured Parties and each of their respective Affiliates, and
each of the officers, directors, employees, and professionals of each Bank, Administrative Agent,
each other Agent and each of the other Secured Parties and their respective Affiliates
(collectively, the “Releasees”), from any and all claims, demands, obligations,
liabilities, causes of action, damages, losses, costs and expenses of any kind or character, known
or unknown, past or present, liquidated or unliquidated, suspected or unsuspected, which Borrower
or NCBFC ever had from the beginning of the world, now has or might hereafter have against any such
Releasee which relates, directly or indirectly to the Credit Agreement, any other Loan Document, or
to any acts or omissions of any such Releasee relating to the Credit Agreement or any other Loan
Document, except for the duties and obligations expressly set forth in this Agreement or with
respect to any act or omission that is taken or occurs after the Effective Date.
22. Time of Essence. Time is of the essence in the payment and performance of each of
the obligations of Borrower and with respect to all covenants and conditions to be satisfied by
Borrower in this Agreement and all documents, acknowledgments and instruments delivered in
connection herewith.
23. Integration. This Agreement (together with the other Loan Documents (each as
amended, supplemented or otherwise modified from time to time)) sets forth in full the terms of
agreement between the parties and is intended as the full, complete and exclusive contract
governing the relationship between the parties with respect to the transactions contemplated
herein, superseding all other discussions, promises, representations, warranties, agreements and
understandings, whether written or oral, between the parties with respect thereto.
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24. No Waiver; Cumulative Remedies. No failure to exercise and no delay in exercising,
on the part of Administrative Agent or any Bank, any right, remedy, power or privilege hereunder,
shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy,
power or privilege hereunder preclude any other or further exercise thereof or the exercise of any
other right, remedy, power or privilege. The rights, remedies, powers and privileges herein
provided are cumulative and not exclusive of any rights, remedies, powers and privileges provided
by law.
25. Severability. Wherever possible, each provision of this Agreement shall be
interpreted in such a manner as to be effective and valid under applicable law, but if any
provision of this Agreement shall be prohibited by or invalid under applicable law, such provision
shall be ineffective to the extent of such prohibition or invalidity, without invalidating the
remainder of such provision or the remaining provisions of this Agreement.
26. Counterparts. This Agreement may be executed by one or more of the parties hereto
on any number of separate counterparts, each of which shall be deemed an original and all of which,
taken together, shall be deemed to constitute one and the same instrument. Delivery of an executed
counterpart of this Agreement by facsimile transmission or electronic mail shall be as effective as
delivery of a manually executed counterpart hereof.
[signature pages follow]
12
IN WITNESS WHEREOF, the parties hereto have caused their respective duly authorized officers
or representatives to execute and deliver this Agreement as of the day and year first written
above.
| NATIONAL CONSUMER COOPERATIVE BANK, as Borrower | ||||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
Acknowledged and agreed this
14th day of August, 2009:
| NCB FINANCIAL CORPORATION | ||||||
By: |
||||||
| Name: | ||||||
| Title: | ||||||
Forbearance Agreement Signature Page
| SUNTRUST BANK, as Administrative Agent and a Bank | ||||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
Forbearance Agreement Signature Page
| BANK OF AMERICA, N.A., as a Bank | ||||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
Forbearance Agreement Signature Page
| PNC BANK, NATIONAL ASSOCIATION., as a Bank | ||||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
Forbearance Agreement Signature Page
| WACHOVIA BANK, N.A., as a Bank | ||||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
Forbearance Agreement Signature Page
| CALYON NEW YORK BRANCH, as a Bank | ||||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
Forbearance Agreement Signature Page
| UNION BANK, N.A., as a Bank | ||||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
Forbearance Agreement Signature Page
| JPMORGAN CHASE BANK, N.A., as a Bank | ||||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
Forbearance Agreement Signature Page
| MANUFACTURERS AND TRADERS TRUST COMPANY, as a Bank | ||||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
Forbearance Agreement Signature Page
| CREDIT SUISSE, CAYMAN ISLANDS BRANCH, as a Bank | ||||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
Forbearance Agreement Signature Page
| COÖPERATIEVE CENTRALE RAIFFEISEN BOERENLEENBANK B.A., “RABOBANK INTERNATIONAL”, NEW YORK BRANCH, as a Bank | ||||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
Forbearance Agreement Signature Page
| MIZUHO CORPORATE BANK (USA), as a Bank | ||||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
Forbearance Agreement Signature Page
| US BANK, N.A., as a Bank | ||||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
Forbearance Agreement Signature Page
| THE BANK OF NOVA SCOTIA, as a Bank | ||||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
Forbearance Agreement Signature Page
| TAIPEI FUBON COMMERCIAL BANK, NEW YORK AGENCY, as a Bank | ||||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
Forbearance Agreement Signature Page
| FIRST COMMERCIAL BANK, LOS ANGELES BRANCH, as a Bank | ||||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
Forbearance Agreement Signature Page
