FLEET LOAN AGREEMENT
AGREEMENT, made this 31st day of January, 1997, by and
between:
NATIONAL CONSUMER COOPERATIVE BANK, a corporation chartered by
Act of Congress of the United States which conducts business under
the trade name National Cooperative Bank (the "Borrower"); and
FLEET BANK, N.A., a national banking association, ("Fleet");
W I T N E S S E T H :
WHEREAS:
(A) The Borrower, the banks signatory thereto (the "Banks")
and Fleet Bank, N.A., as Agent for itself and the Banks entered
into a certain Second Amended and Restated Loan Agreement dated as
of December 15, 1993, which was amended pursuant to (i) Amendment
No. 1 to Second Amended and Restated Loan Agreement dated as of
December 12, 1994, (ii) Amendment No. 2 to Second Amended and
Restated Loan Agreement dated as of December 11, 1995, (iii)
Amendment No. 3 to Second Amended and Restated Loan Agreement dated
as of May 30, 1996, and (iv) Amendment No. 4 to Second Amended and
Restated Loan Agreement dated as of December 20, 1996 (as so
amended and as it may hereafter be further amended, modified or
supplemented, the "Banks' Loan Agreement") pursuant to which the
Banks made available to the Borrower a revolving credit facility in
the aggregate principal amount set forth therein;
(B) The Borrower wishes to have available to it a line of
credit from Fleet in the principal amount of up to Forty Million
($40,000,000) Dollars and Fleet is willing to make available to the
Borrower such a line of credit on the terms and conditions herein-
after set forth; and
(C) Unless the context otherwise requires, all capitalized
terms used in this Agreement without definition that are defined in
the Banks' Loan Agreement shall have the meanings provided therefor
in the Banks' Loan Agreement. Certain terms used herein are defined
for the purposes of this Agreement in Article 1 below.
NOW, THEREFORE, the parties hereto agree as follows:
Article 1. Definitions.
As used in this Agreement, the following terms shall have the
following meanings:
Banks' Loan Agreement: as defined in Recital (A) hereof.
Fleet Commitment Fee: as defined in subsection 2.7(b) hereof.
Fleet Credit Period: the period commencing on the date of
this Agreement and ending on the Fleet Credit Termination Date.
Fleet Credit Termination Date: May 28, 1997.
Fleet Fee: as defined in subsection 2.7(a) hereof.
Fleet Loans: as defined in Section 2.1 hereof.
Fleet Loan Documents: collectively, this Agreement, the Fleet
Note, and all other documents executed and delivered in connection
herewith or therewith, including all amendments, modifications and
supplements of or to all such documents.
Fleet Note: as defined in Section 2.4 hereof.
Line of Credit Availability: $40,000,000 as such amount may
be reduced from time to time pursuant to the terms of this
Agreement.
Obligations: all of the indebtedness, liabilities and
obligations of the Borrower to Fleet, whether now existing or
hereafter arising, under the Fleet Loan Documents.
Article 2. Fleet Loans.
Section 2.1 Fleet Loans.
Subject to the terms and conditions of this Agreement, Fleet
hereby agrees to hold available for the use of the Borrower during
the Fleet Credit Period (to and including the Fleet Credit
Termination Date), a line of credit (the "Line of Credit") in an
aggregate principal amount at any one time 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, prepay (as
provided in Section 2.9 of the Banks' Loan Agreement and provided
further that prepayment of Fixed Rate Loans shall be subject to the
provisions of Section 2.24 of the Banks' Loan Agreement) and
reborrow up to the amount of the Line of Credit Availability as
then in effect by means of Prime Rate Loans, Fed Funds Loans or
Fixed Rate Loans, and during such period the Borrower may convert
Fleet Loans of one type into Fleet Loans of another type (as
provided in Section 2.8 of the Banks' Loan Agreement).
Section 2.2 Notices Relating to Fleet Loans.
The Borrower shall give Fleet written notice of each borrowing,
reborrowing, conversion and prepayment of each Fleet Loan and
of the duration of each Interest Period applicable to each Fixed
Rate Loan 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).
Section 2.3 Disbursement of Loan Proceeds.
The Borrower shall give Fleet notice of each borrowing
hereunder as provided in Section 2.2 hereof. Fleet shall disburse
such sums to the Borrower by depositing in immediately available
funds the amount thereof in an account of the Borrower designated
by the Borrower maintained with Fleet.
Section 2.4 Fleet Note.
The Fleet Loans shall be evidenced by a single promissory note
of the Borrower payable to the order of Fleet and dated the date of
this Agreement. The promissory note shall be in the principal
amount of Forty Million ($40,000,000) Dollars and shall be in the
form of Exhibit A annexed hereto (the "Fleet Note").
Section 2.5 Repayment of Principal of Fleet Loans.
The aggregate outstanding principal amount of the Fleet Loans
shall be payable, together with all accrued interest thereon, in a
single installment on the Fleet Credit Termination Date.
Section 2.6 Interest.
(a) The Borrower shall pay to Fleet interest on the unpaid
principal amount of the Fleet Loans for the period commencing on
the date that each Fleet Loan is made until such Fleet Loan is paid
in full, at the rates per annum (including, if applicable, the
Post-Default Rate) and on the dates set forth in, and as calculated
in, the Banks' Loan Agreement; provided, however, notwithstanding
the penultimate paragraph of Section 2.12 of the Banks' Loan
Agreement, the Borrower shall, regardless of the aggregate amount
of all outstanding Fleet Loans, pay to the Bank Additional Interest
at the rate of 0.5% per annum with respect to all outstanding Fleet
Loans which are Fed Fund Loans or Fixed Rate Loans.
(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 inter-
est which may be charged or collected by Fleet. Any such payments
of interest which are not made as a result of the limitation
referred to in the preceding sentence shall be made by the Borrower
to Fleet on the earliest interest payment date or dates on which
the receipt thereof would be permissible under the laws applicable
to Fleet limiting rates of interest which may be charged or
collected by Fleet. Such deferred interest shall not bear
interest.
Section 2.7 Fleet Fees.
(a) Simultaneously with the execution and 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 .125% per annum on the Line
of Credit Availability. The accrued Fleet Commitment Fee shall be
payable quarterly commencing on March 31, 1997 and on the Fleet
Credit Termination Date.
Section 2.8 Use of Proceeds of Fleet Loans.
The proceeds of the Fleet Loans shall be used by the Borrower
for general corporate and working capital purposes.
Section 2.9 Computations.
Interest on the Fleet Loans and the Fleet 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.
Section 2.10 Minimum Amounts of Borrowings,
Conversions and Prepayments.
Except for borrowings, conversions and prepayments which
exhaust the full remaining amount of the Line of Credit Availability
(in the case of borrowings) or result in the conversion or
prepayment of all Fleet Loans of a particular type (in the case of
conversions or prepayments) 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 prepayment 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 prepayments of
different types of Fleet Loans at the same time hereunder to be
deemed separate borrowings, conversions and prepayments for
purposes of the foregoing, one for each type).
Section 2.11 Time and Method of Payments.
All payments of principal, interest, fees and other charges
(including indemnities) payable by the Borrower hereunder shall be
made in Dollars, in immediately available funds, to Fleet as set
forth in the Banks' Loan Agreement (and Fleet may, but shall not be
obligated to, debit the amount of any such payment that is not made
as provided in the Banks' Loan Agreement to any ordinary deposit
account of the Borrower with Fleet). Additional provisions
relating to payments are set forth in Section 10.3 of the Banks'
Loan Agreement and are incorporated by reference herein.
Section 2.12 Reductions in Line of Credit Availability.
The Borrower shall be entitled to reduce or termi-nate the
Line of Credit Availability provided that the Borrower shall give
notice of such reduction or termination to the Bank as provided in
Section 2.3 of the Banks' Loan Agreement and any partial reduction
of the Line of Credit Availability shall be in an aggregate amount
equal to Ten Million ($10,000,000) Dollars or an integral multiple
thereof. Any such reduction shall be permanent and irrevocable.
Section 2.13 Incorporation of Certain Provisions.
The provisions of Sections 2.19 through 2.24 inclusive of the
Banks' Loan Agreement and all other sections of the Banks' Loan
Agreement to which such Sections 2.19 through 2.24 refer are hereby
incorporated by reference as if the provisions thereof were set
forth in full herein.
Article 3. Representations and Warranties.
The Borrower hereby represents and warrants to Fleet that:
Section 3.1 Article 3 of Banks' Loan
Agreement; No Defaults.
(a) Each and every one of the representations and warranties
set forth in Article 3 of the Banks' Loan Agreement is true in all
respects as of the date hereof, except for changes in the ordinary
course of business, which, either singly or in the aggregate, are
not materially adverse to the business or 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.
Section 3.2 Power, Authority, Consents.
The Borrower has the power to execute, deliver and perform the
Fleet Loan Documents to be executed by it. The Borrower has the
power to borrow hereunder and has taken all necessary action to
authorize the borrowing hereunder on the terms and conditions of
this Agreement. The Borrower has taken all necessary action,
corporate or otherwise, to authorize the execution, delivery and
performance of the Fleet Loan Documents to be executed by it. No
consent or approval of any Person (including, without limitation,
any stockholder of the Borrower), no consent or approval of any
landlord or mortgagee, no waiver of any Lien or right of distraint
or other similar right and no consent, license, approval, authorization
or declaration of any governmental authority, bureau or
agency, is or will be required in connection with the execution,
delivery or performance by the Borrower, or the validity or
enforcement of the Fleet Loan Documents.
Section 3.3 No Violation of Law or Agreements.
The execution and delivery by the Borrower of each Fleet Loan
Document and performance by it hereunder and 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.
Section 3.4 Due Execution, Validity, Enforceability.
This Agreement and each other Fleet Loan Document has been
duly executed and delivered by the Borrower and each constitutes
the valid and legally binding obligation of the Borrower, enforceable
in accordance with its terms, except as such enforcement may
be limited by applicable bankruptcy, 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.
Article 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.
Article 5. Covenants.
From the date hereof and so long as this Agreement shall be
outstanding and until payment in full of all of the Obligations,
the Borrower agrees to comply with and perform each and every
covenant and condition set forth in Articles 5, 6 and 7 of the
Banks' Loan Agreement, which Articles 5, 6 and 7 are hereby
incorporated herein by reference.
Article 6. Events of Default.
If any one or more of the following events ("Events of
Default") shall occur and be continuing, the entire unpaid balance
of the principal of and interest on the Fleet Note and all other
Obligations and indebtedness of the Borrower to Fleet arising
hereunder and under the other Fleet Loan Documents shall
immediately become due and payable upon written notice to that effect
given to the Borrower by Fleet (except that in the case of the
occurrence of any Event of Default described in Section 8.7
of the Banks' Loan Agreement, as such Section 8.7 is hereinafter
incorporated herein by reference, no such notice shall be 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:
Section 6.1 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
Section 6.2 Other Covenants.
Failure by the Borrower to perform or observe any other term,
condition or covenant of this Agreement or of any of the other
Fleet Loan Documents to which it is a party, which shall remain
unremedied for a period of fifteen (15) days after notice thereof
shall have been given to the Borrower by Fleet; or
Section 6.3 Other Events of Default.
An Event of Default (as defined in the Banks' Loan Agreement)
shall occur and be continuing under the Banks' Loan Agreement,
(provided in the event the Banks' Loan Agreement is terminated for
any reason whatsoever or the indebtedness 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).
Article 7. Miscellaneous Provisions.
Section 7.1 Miscellaneous Provisions
Incorporated by Reference.
The miscellaneous provisions under Article 10 of the Banks'
Loan Agreement and all other sections of the Banks' Loan Agreement
to which Article 10 refers are hereby incorporated by reference as
if the provisions thereof were set forth in full herein.
Section 7.2 References in the Banks' Loan Agreement.
All references in the Banks' Loan Agreement to the "Agent" or
the "Banks", to the extent that such references are incorporated
herein, shall be deemed references hereunder to Fleet.
Section 7.3 Incorporation of Banks' Loan Agreement.
Any term or provision of the Banks' Loan 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.
Section 7.4 Counterparts.
This Agreement may be signed in any number of counterparts
with the same effect as if the signatures thereto and hereto were
upon the same instrument.
Section 7.5 Binding Effect; No Assignment or Delegation.
This Agreement shall be binding upon and inure to the benefit
of the Borrower and its successors and to the benefit of Fleet and
its successors and assigns. The rights and 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
$40,000,000 Due May 28, 1997
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
FORTY MILLION ($40,000,000) 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 May 28, 1997.
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
schedules 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
prepayment 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 prepay 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 ____ day of
January, 1997 in New York, New York, and shall be construed in
accordance with and governed by the internal laws of the State of
New York.
NATIONAL CONSUMER COOPERATIVE BANK
D/B/A NATIONAL COOPERATIVE BANK
By:________________________________
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, Fed Funds Loans, CD Loans or LIBOR Loans) and on the
dates set forth below, subject to the payments or prepayments set
forth below:
Prin. Int. Amt of
Date Made Amt of Type of Due Date Rate on Payment or Balance Notation
or Converted Loan Loan of Loan Loan Prepayment Outstanding made by