FLEET LOAN AGREEMENT
AGREEMENT, made as of the 15th day of December, 1999,
by and between:
NATIONAL CONSUMER COOPERATIVE BANK, a corporation
chartered by Act of Congress of the United States which
conducts business under the trade name National Cooperative
Bank (the "Borrower"); and
FLEET BANK, NA, a national banking association,
("Fleet");
W I T N E S S E T H :
WHEREAS:
(A)The Borrower, the banks signatory thereto (the
"Banks") and Fleet Bank, N.A., as Agent for itself and the
Banks entered into a certain Third Amended and Restated Loan
Agreement dated as of May 28, 1997, which was amended
pursuant to (i) Amendment No. 1 to Third Amended and
Restated Loan Agreement dated as of May 27, 1998, and (ii)
Amendment No. 2 to Third Amended and Restated Loan Agreement
dated as of May 26, 1999 (as so amended, and as it may from
time to time hereafter be further amended, restated,
modified or supplemented, hereinafter referred to as the
"Banks' Loan Agreement") pursuant to which the Banks made
available to the Borrower a revolving credit facility in the
aggregate principal amount set forth therein;
(B)The Borrower wishes to have available to it a line
of credit from Fleet in the principal amount of up to Fifty
Million ($50,000,000) Dollars and Fleet is willing to make
available to the Borrower such a line of credit on the terms
and conditions hereinafter set forth; and
(C)Unless the context otherwise requires, all
capitalized terms used in this Agreement without definition
that are defined in the Banks' Loan Agreement shall have the
meanings provided therefor in the Banks' Loan Agreement.
Certain terms used herein are defined for the purposes of
this Agreement in Article 1 below.
NOW, THEREFORE, the parties hereto agree as follows:
1 Definitions
As used in this Agreement, the following terms shall
have the following meanings:
Banks' Loan Agreement: as defined in Recital (A)
hereof.
Borrowing Notice: as defined in subsection 2.2(a)
hereof.
Fleet Commitment Fee: as defined in subsection 2.7(b)
hereof.
Fleet Credit Period: the period commencing on the date
of this Agreement and ending on the Fleet Credit Termination
Date.
Fleet Credit Termination Date: April 14, 2000.
Fleet Fee: as defined in subsection 2.7(a) hereof.
Fleet Loans: as defined in Section 2.1 hereof.
Fleet Loan Documents: collectively, this Agreement,
the Fleet Note, and all other documents executed and
delivered in connection herewith or therewith, including all
amendments, modifications and supplements of or to all such
documents.
Fleet Note: as defined in Section 2.4 hereof.
Line of Credit: as defined in Section 2.1 hereof.
Line of Credit Availability: $50,000,000 as such
amount may be reduced from time to time pursuant to the
terms of this Agreement.
Obligations: all of the indebtedness, liabilities and
obligations of the Borrower to Fleet, whether now existing
or hereafter arising, under the Fleet Loan Documents.
2 Fleet Loans
_1 Fleet Loans.
Subject to the terms and conditions of this Agreement,
Fleet hereby agrees to hold available for the use of the
Borrower during the Fleet Credit Period (to and including
the Fleet Credit Termination Date), a line of credit (the
"Line of Credit") in an aggregate principal amount at any
one time outstanding up to, but not exceeding, the Line of
Credit Availability as then in effect. The Line of Credit
shall consist of short-term loans (individually, a "Fleet
Loan" and, collectively, the "Fleet Loans"). Subject to the
terms of this Agreement and the Banks' Loan Agreement,
during the Fleet Credit Period the Borrower may borrow,
repay and reborrow up to the amount of the Line of Credit
Availability as then in effect by means of Prime Rate Loans
or LIBOR Loans (provided that repayment of LIBOR Loans shall
be subject to the provisions of Section 2.24 of the Banks'
Loan Agreement) and during such period the Borrower may
convert Fleet Loans of one type into Fleet Loans of another
type (as provided in Section 2.8 of the Banks' Loan
Agreement).
_2 Notices Relating to Fleet Loans.
(a)The Borrower shall give Fleet written notice of
each borrowing, reborrowing, conversion and repayment of
each Fleet Loan and of the duration of each Interest Period
applicable to each LIBOR Loan (subject to subsection 2.2(b)
below) and the termination or reduction of the Line of
Credit Availability (in each case, a "Borrowing Notice"),
all as provided in Section 2.3 of the Banks' Loan Agreement
(provided that each reference in such Section 2.3 to the
"Agent" shall be deemed herein to be a reference to Fleet).
(b)Notwithstanding anything to the contrary
contained in the Banks' Loan Agreement, the Interest
Period(s) applicable to the Fleet Loans hereunder shall, at
the Borrower's election (subject to availability to Fleet),
be seven (7) days (i.e. the One-Week Rate) or a one-month
Interest Period.
_3 Disbursement of Loan Proceeds.
The Borrower shall give Fleet notice of each borrowing
hereunder as provided in Section 2.2 hereof. Fleet shall
disburse such sums to the Borrower by depositing in
immediately available funds the amount thereof in an account
of the Borrower designated by the Borrower maintained with
Fleet.
_4 Fleet Note.
The Fleet Loans shall be evidenced by a single
promissory note of the Borrower payable to the order of
Fleet and dated the date of this Agreement. The promissory
note shall be in the principal amount of Fifty Million
($50,000,000) Dollars and shall be in the form of Exhibit A
annexed hereto (the "Fleet Note").
_5 Repayment of Principal of Fleet Loans.
The aggregate outstanding principal amount of the Fleet
Loans shall be payable, together with all accrued interest
thereon, in a single installment on the Fleet Credit
Termination Date.
_6 Interest.
(a)The Borrower shall pay to Fleet interest on the
unpaid principal amount of the Fleet Loans for the period
commencing on the date that each Fleet Loan is made until
such Fleet Loan is paid in full, at the following rates per
annum:
(i)During the periods that such Fleet Loan is
a Prime Rate Loan, the Alternate Base Rate; provided,
however, during the period from the date hereof to
January 31, 2000, in the event the Federal Funds Rate
does not reasonably reflect Fleet's cost of funds, then
the Federal Funds Rate will be adjusted upwards in an
amount not to exceed 1.50% which is necessary to
compensate Fleet for its actual cost of funds. If
Fleet becomes entitled to claim any such additional
amounts, it shall promptly notify the Borrower of the
event by reason of which it has become so entitled by
providing a certificate (which shall be conclusive
absent manifest error) setting forth in reasonable
detail the basis for the claim for additional amounts,
the amounts required to be paid by the Borrower and the
computations made by Fleet to determine the amounts;
provided that Fleet shall not be required to disclose
any confidential information. Failure or delay on the
part of Fleet to demand compensation pursuant hereto
shall not constitute a waiver of Fleet's right to
demand such compensation; provided Fleet must have made
its demand for such compensation on or before June 30,
2000; and
(ii)During the periods that such Fleet Loan
is a LIBOR Loan, for each Interest Period relating
thereto, the LIBOR Rate for such Loan for such Interest
Period plus .50%.
Notwithstanding the foregoing, the Borrower shall pay
interest on any Fleet Loan or any installment thereof, and
on any other amount payable by the Borrower hereunder which
shall not be paid in full when due (whether at stated
maturity, by acceleration or otherwise) for the period
commencing on the due date thereof until the same is paid in
full at 4% above the otherwise applicable rate. Accrued
interest on the Fleet Loans shall be payable on the dates
set forth in the Banks' Loan Agreement.
(b) Anything in this Agreement or the Fleet Note
to the contrary notwithstanding, the obligation of the
Borrower to make payments of interest shall be subject to
the limitation that payments of interest shall not be
required to be made to Fleet to the extent that Fleet's
receipt thereof would not be permissible under the law or
laws applicable to Fleet limiting rates of interest which
may be charged or collected by Fleet. Any such payments of
interest which are not made as a result of the limitation
referred to in the preceding sentence shall be made by the
Borrower to Fleet on the earliest interest payment date or
dates on which the receipt thereof would be permissible
under the laws applicable to Fleet limiting rates of
interest which may be charged or collected by Fleet. Such
deferred interest shall not bear interest.
_7 Fleet Fees.
(a) Simultaneously with the execution and
delivery of this Agreement, the Borrower shall pay to Fleet
a facility fee (the "Fleet Fee") as set forth in a separate
written agreement between the Borrower and the Bank.
(b) The Borrower shall pay to Fleet a commitment
fee (the "Fleet Commitment Fee") on the amount of the Line
of Credit Availability from the date hereof to and including
the earlier of the date the Line of Credit Availability is
terminated or the Fleet Credit Termination Date, at the rate
of .175% per annum on the Line of Credit Availability. The
accrued Fleet Commitment Fee shall be payable quarterly
commencing on January 31, 2000 and on the Fleet Credit
Termination Date.
_8 Use of Proceeds of Fleet Loans.
The proceeds of the Fleet Loans shall be used by the
Borrower for general corporate and working capital purposes.
_9 Computations.
Interest on the Fleet Loans and the Fleet Commitment
Fee shall be computed on the basis of a year of 360 days and
actual days elapsed (including the first day but excluding
the last) occurring in the period for which payable.
_10 Minimum Amounts of Borrowings, Conversions and Repayments.
Except for borrowings, conversions and repayments which
exhaust the full remaining amount of the Line of Credit
availability (in the case of borrowings) or result in the
conversion or repayment of all Fleet Loans of a particular
type (in the case of conversions or repayments) or
conversions made pursuant to Section 2.23 of the Banks' Loan
Agreement, each borrowing, each conversion of Fleet Loans of
one type into Fleet Loans of another type and each repayment
of principal of Fleet Loans hereunder shall be in an amount
at least equal to One Million ($1,000,000) Dollars or a
multiple of $1,000,000 (borrowings, conversions and
repayments of different types of Fleet Loans at the same
time hereunder to be deemed separate borrowings, conversions
and repayments for purposes of the foregoing, one for each
type).
_11 Time and Method of Payments.
All payments of principal, interest, fees and other
charges (including indemnities) payable by the Borrower
hereunder shall be made in Dollars, in immediately available
funds, to Fleet as set forth in the Banks' Loan Agreement
(and Fleet may, but shall not be obligated to, debit the
amount of any such payment that is not made as provided in
the Banks' Loan Agreement to any ordinary deposit account of
the Borrower with Fleet). Additional provisions relating to
payments are set forth in Section 10.3 of the Banks' Loan
Agreement and are incorporated by reference herein.
_12 Reductions in Line of Credit Availability.
The Borrower shall be entitled to reduce or terminate
the Line of Credit Availability provided that the Borrower
shall give notice of such reduction or termination to the
Bank as provided in Section 2.3 of the Banks' Loan Agreement
and any partial reduction of the Line of Credit Availability
shall be in an aggregate amount equal to Ten Million
($10,000,000) Dollars or an integral multiple thereof. Any
such reduction shall be permanent and irrevocable.
_13 Incorporatin of Certain Provisions.
The provisions of Sections 2.19 through 2.24 inclusive
of the Banks' Loan Agreement and all other sections of the
Banks' Loan Agreement to which such Sections 2.19 through
2.24 refer are hereby incorporated by reference as if the
provisions thereof were set forth in full herein.
________3 Representations and Warranties
The Borrower hereby represents and warrants to Fleet
that:
_1 Article 3 of Banks' Loan Agreement; No
Defaults.
(a) Each and every one of the representations and
warranties set forth in Article 3 of the Banks' Loan
Agreement is true in all respects as of the date hereof,
except for changes in the ordinary course of business,
which, either singly or in the aggregate, are not materially
adverse to the business or financial condition of the
Borrower.
(b) As of the date hereof, there exists no Event
of Default under the Banks' Loan Agreement, and no event
which, with the giving of notice or lapse of time or both,
would constitute such an Event of Default.
_2 Power, Authority, Consents.
The Borrower has the power to execute, deliver and
perform the Fleet Loan Documents to be executed by it. The
Borrower has the power to borrow hereunder and has taken all
necessary action to authorize the borrowing hereunder on the
terms and conditions of this Agreement. The Borrower has
taken all necessary action, corporate or otherwise, to
authorize the execution, delivery and performance of the
Fleet Loan Documents to be executed by it. No consent or
approval of any Person (including, without limitation, any
stockholder of the Borrower), no consent or approval of any
landlord or mortgagee, no waiver of any Lien or right of
distraint or other similar right and no consent, license,
approval, authorization or declaration of any governmental
authority, bureau or agency, is or will be required in
connection with the execution, delivery or performance by
the Borrower, or the validity or enforcement of the Fleet
Loan Documents.
_3 No Violation of Law or Agreements.
The execution and delivery by the Borrower of each
Fleet Loan Document and performance by it hereunder and
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
certificate of incorporation or by-laws of the Borrower or
create (with or without the giving of notice or lapse of
time, or both) a default under or breach of any agreement,
bond, note or indenture to which the Borrower is a party, or
by which the Borrower is bound or any of its properties or
assets is affected, or result in the imposition of any Lien
of any nature whatsoever upon any of the properties or
assets owned by or used in connection with the business of
the Borrower.
_4 Due Execution, Validity, Enforceability.
This Agreement and each other Fleet Loan Document has
been duly executed and delivered by the Borrower and each
constitutes the valid and legally binding obligation of the
Borrower, enforceable in accordance with its terms, except
as such enforcement may be limited by applicable bankruptcy,
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.
________4 Conditions Precedent to the Fleet Loans
The obligation of Fleet to make the Fleet Loans
hereunder shall be subject to the fulfillment (to the
satisfaction of Fleet) of the following conditions
precedent:
(a) The Borrower shall have executed and
delivered to Fleet this Agreement and the
Fleet Note.
(b) Fleet shall have received the Fleet Fee.
(c) Fleet shall have received a Compliance
Certificate from the Borrower dated the date
hereof and the matters certified therein,
including, without limitation, that after
giving effect to the terms and conditions of
this Agreement, no Default or Event of
Default shall exist, shall be true.
(d) Shea & Gardner, counsel to the Borrower,
shall have delivered its legal opinion to
Fleet, in form and substance satisfactory to
Fleet and its counsel.
(e) Fleet shall have received copies of the
following:
(i) All corporate action taken by the
Borrower to authorize the execution,
delivery and performance of this
Agreement, the Fleet Note and the
transactions contemplated hereby,
certified by its secretary;
(ii) A certificate from the secretary of the
Borrower to the effect that the By-laws
of the Borrower delivered to Fleet Bank,
N.A., as Agent pursuant to the Banks'
Loan Agreement have not been amended
since the date of such delivery and that
such document is in full force and
effect and is true and correct as of the
date hereof; and
(iii) An incumbency certificate (with
specimen signatures) with respect to the
Borrower.
(f) All legal matters incident hereto shall be
satisfactory to Fleet and its counsel.
________5 Covenants
From the date hereof and so long as this Agreement
shall be outstanding and until payment in full of all of the
Obligations, the Borrower agrees to comply with and perform
each and every covenant and condition set forth in Articles
5, 6 and 7 of the Banks' Loan Agreement, which Articles 5, 6
and 7 are hereby incorporated herein by reference.
________6 Events of Default
If any one or more of the following events ("Events of
Default") shall occur and be continuing, the entire unpaid
balance of the principal of and interest on the Fleet Note
and all other Obligations and indebtedness of the Borrower
to Fleet arising hereunder and under the other Fleet Loan
Documents shall immediately become due and payable upon
written notice to that effect given to the Borrower by Fleet
(except that in the case of the occurrence of any Event of
Default described in Section 8.7 of the Banks' Loan
Agreement, as such Section 8.7 is hereinafter incorporated
herein by reference, no such notice shall be required),
without presentment or demand for payment, notice of non-
payment, protest or further notice or demand of any kind,
all of which are expressly waived by the Borrower; provided,
however, that in the case of the occurrence of an Event of
Default described in Section 6.1 below, no such notice shall
be required after the passage of ten (10) days after the
Grace Period provided for therein:
_1 Payments.
Failure to make any payment of principal or interest
upon the Fleet Note or any fee pursuant to this Agreement
within three (3) Business Days after the due date thereof
(the "Grace Period"); or
_2 Other Covenants.
Failure by the Borrower to perform or observe any other
term, condition or covenant of this Agreement or of any of
the other Fleet Loan Documents to which it is a party, which
shall remain unremedied for a period of fifteen (15) days
after notice thereof shall have been given to the Borrower
by Fleet; or
_3 Other Events of Default.
An Event of Default (as defined in the Banks' Loan
Agreement) shall occur and be continuing under the Banks'
Loan Agreement, (provided in the event the Banks' Loan
Agreement is terminated for any reason whatsoever or the
indebtedness thereunder is paid in full, the covenants
contained in Articles 5, 6 and 7 of the Banks' Loan
Agreement and the Events of Default defined in Article 8 of
the Banks' Loan Agreement, together with the definitions of
all of the defined terms used therein and all other portions
of the Banks' Loan Agreement to which reference is made in
such Articles, will be incorporated by reference and the
same shall be applicable herein, mutatis mutandis, and will
be deemed to continue in effect until this Agreement is
terminated and all of the Obligations under this Agreement
are fully paid and performed).
________7 Miscellaneous Provisions
_1 Miscellaneous Provisions Incorporated by
Reference.
The miscellaneous provisions under Article 10 of the
Banks' Loan Agreement and all other sections of the Banks'
Loan Agreement to which Article 10 refers are hereby
incorporated by reference as if the provisions thereof were
set forth in full herein.
_2 References in the Banks' Loan Agreement.
All references in the Banks' Loan Agreement to the
"Agent" or the "Banks", to the extent that such references
are incorporated herein, shall be deemed references
hereunder to Fleet.
_3 Incorporation of Banks" Loan Agreement.
Any term or provision of the Banks" Loan Agreement, as
in effect on the date of this Agreement, which has been
incorporated herein by reference and which is hereafter
amended or modified, shall unless the parties hereto
otherwise agree in writing, automatically be incorporated
herein as so amended, from and after the effective date of
any such amendment, without the necessity of the execution
and delivery of any instrument or document or the taking of
any action.
_4 Counterparts.
This Agreement may be signed in any number of
counterparts with the same effect as if the signatures
thereto and hereto were upon the same instrument.
_5 Binding Effect; No Assignment or Delegation.
This Agreement shall be binding upon and inure to the
benefit of the Borrower and its successors and to the
benefit of Fleet and its successors and assigns. The rights
and obligations of the Borrower under this Agreement shall
not be assigned or delegated without the prior written
consent of Fleet, and any purported assignment or delegation
without such consent shall be void.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the date first above
written.
NATIONAL CONSUMER COOPERATIVE BANK,
D/B/A NATIONAL COOPERATIVE BANK
By:
Title
FLEET BANK, N.A.
By:
Title
EXHIBIT A
TO FLEET LOAN AGREEMENT
BY AND BETWEEN
NATIONAL CONSUMER COOPERATIVE BANK
AND
FLEET BANK, N.A.
FORM OF FLEET NOTE
$50,000,000 Due April 14, 2000
New York, New York
FOR VALUE RECEIVED, NATIONAL CONSUMER COOPERATIVE BANK
D/B/A NATIONAL COOPERATIVE BANK (the "Borrower"), hereby
promises to pay to the order of FLEET BANK, N.A. (the
"Bank") the principal sum of FIFTY MILLION ($50,000,000)
DOLLARS (or such lesser amount as shall equal the aggregate
unpaid principal amount of the Fleet Loans made by the Bank
under the Loan Agreement hereinafter defined, shown on the
schedule annexed hereto and any continuation thereof), in
lawful money of the United States of America and in
immediately available funds on the date or dates determined
as provided in the Loan Agreement but in no event later than
April 14, 2000.
The Borrower further promises to pay to the order of
the Bank interest on the unpaid principal amount of each
Fleet Loan from the date such Fleet Loan is made until paid
in full, payable at such rates and at such times as provided
for in the Loan Agreement.
The Bank has been authorized by the Borrower to record
on the schedule annexed to this Note (or on any continuation
thereof) the amount, type, due date and interest rate of
each Fleet Loan made by the Bank under the Loan Agreement
and the amount of each payment or repayment of principal and
the amount of each payment of interest of each such Fleet
Loan received by the Bank, it being understood, however,
that failure to make any such notation shall not affect the
rights of the Bank or the obligations of the Borrower
hereunder or under the Loan Agreement in respect of such
Fleet Loans. Such notations shall be deemed correct, absent
manifest error.
This Note is the Fleet Note referred to in the Fleet
Loan Agreement dated as of the date hereof (the "Loan
Agreement") between the Borrower and the Bank and evidences
the Fleet Loans made by the Bank thereunder. Capitalized
terms used in this Note have the respective meanings
assigned to them in the Loan Agreement.
Upon the occurrence of an Event of Default under the
Loan Agreement, the principal hereof and accrued interest
hereon shall become, or may be declared to be, forthwith due
and payable in the manner, upon the conditions and with the
effect provided in the Loan Agreement.
The Borrower may at its option repay all or any part of
the principal of this Note before maturity upon and subject
to the terms provided in the Loan Agreement.
The Borrower agrees to pay costs of collection and
reasonable attorneys' fees in case default occurs in the
payment of this Note.
Presentment for payment, notice of dishonor, protest
and notice of protest are hereby waived.
This Note has been executed and delivered this 15th day
of December, 1999 in New York, New York, and shall be
construed in accordance with and governed by the internal
laws of the State of New York.
NATIONAL CONSUMER COOPERATIVE BANK
D/B/A NATIONAL COOPERATIVE BANK
By:
Title
SCHEDULE TO FLEET NOTE
MADE BY NATIONAL CONSUMER COOPERATIVE BANK
IN FAVOR OF FLEET BANK, N.A.
This Note evidences the Fleet Loans made under the
within described Agreement, in the principal amounts, of the
types (Prime Rate Loans or LIBOR Loans) and on the dates set
forth below, subject to the payments or repayments set forth
below:
Date Made Type Due Date Interest Amount of
or Prin. Amt. of of Rate on Payment or Balance Notation
Converted of Loan Loan Loan Loan Repayment Outstanding made by