FLEET LOAN AGREEMENT
AGREEMENT, made as of the 6th day of May, 1998, by and
between:
NATIONAL CONSUMER COOPERATIVE BANK, a corporation chartered
by Act of Congress of the United States which conducts business
under the trade name National Cooperative Bank (the "Borrower");
and
FLEET BANK, N.A., a national banking association, ("Fleet");
W I T N E S S E T H :
WHEREAS:
(A) The Borrower, the banks signatory thereto (the "Banks")
and Fleet Bank, N.A., as Agent for itself and the Banks entered
into a certain Third Amended and Restated Loan Agreement dated as
of May 28, 1997 (as it may from time to time be amended,
restated, modified or supplemented, the "Banks' Loan Agreement")
pursuant to which the Banks made available to the Borrower a
revolving credit facility in the aggregate principal amount set
forth therein;
(B) The Borrower wishes to have available to it a line of
credit from Fleet in the principal amount of up to Fifty Million
($50,000,000) Dollars and Fleet is willing to make available to
the Borrower such a line of credit on the terms and conditions
hereinafter set forth; and
(C) Unless the context otherwise requires, all capitalized
terms used in this Agreement without definition that are defined
in the Banks' Loan Agreement shall have the meanings provided
therefor in the Banks' Loan Agreement. Certain terms used herein
are defined for the purposes of this Agreement in Article 1
below.
NOW, THEREFORE, the parties hereto agree as follows:
Article 1. Definitions.
As used in this Agreement, the following terms shall have
the following meanings:
Banks' Loan Agreement: as defined in Recital (A) hereof.
Fleet Commitment Fee: as defined in subsection 2.7(b)
hereof.
Fleet Credit Period: the period commencing on the date of
this Agreement and ending on the Fleet Credit Termination Date.
Fleet Credit Termination Date: August 31, 1998.
Fleet Fee: as defined in subsection 2.7(a) hereof.
Fleet Loans: as defined in Section 2.1 hereof.
Fleet Loan Documents: collectively, this Agreement, the
Fleet Note, and all other documents executed and delivered in
connection herewith or therewith, including all amendments,
modifications and supplements of or to all such documents.
Fleet Note: as defined in Section 2.4 hereof.
Line of Credit Availability: $50,000,000 as such amount may
be reduced from time to time pursuant to the terms of this
Agreement.
Obligations: all of the indebtedness, liabilities and
obligations of the Borrower to Fleet, whether now existing or
hereafter arising, under the Fleet Loan Documents.
Article 2. Fleet Loans.
Section 2.1 Fleet Loans.
Subject to the terms and conditions of this
Agreement, Fleet hereby agrees to hold available for the use of
the Borrower during the Fleet Credit Period (to and including the
Fleet Credit Termination Date), a line of credit (the "Line of
Credit") in an aggregate principal amount at any one time out
standing up to, but not exceeding, the Line of Credit Availabil
ity as then in effect. The Line of Credit shall consist of
short-term loans (individually, a "Fleet Loan" and, collectively,
the "Fleet Loans"). Subject to the terms of this Agreement and
the Banks' Loan Agreement, during the Fleet Credit Period the
Borrower may borrow, repay and reborrow up to the amount of the
Line of Credit Availability as then in effect by means of Prime
Rate Loans or LIBOR Loans (provided that repayment of LIBOR Loans
shall be subject to the provisions of Section 2.24 of the Banks'
Loan Agreement) and during such period the Borrower may convert
Fleet Loans of one type into Fleet Loans of another type (as
provided in Section 2.8 of the Banks' Loan Agreement).
Section 2.2 Notices Relating to Fleet Loans.
(a) The Borrower shall give Fleet written notice
of each borrowing, reborrowing, conversion and repayment of each
Fleet Loan and of the duration of each Interest Period applicable
to each LIBOR Loan (subject to subsection 2.2(b) below) and the
termination or reduction of the Line of Credit Availability (in
each case, a "Borrowing Notice"), all as provided in Section 2.3
of the Banks' Loan Agreement (provided that each reference in
such Section 2.3 to the "Agent" shall be deemed herein to be a
reference to Fleet).
(b) Notwithstanding anything to the contrary
contained in the Banks' Loan Agreement, the Interest Period(s)
applicable to the Fleet Loans hereunder shall, at the Borrower's
election, be seven (7) days (i.e. the One-Week Rate) or a one-
month Interest Period.
Section 2.3 Disbursement of Loan Proceeds.
The Borrower shall give Fleet notice of each
borrowing hereunder as provided in Section 2.2 hereof. Fleet
shall disburse such sums to the Borrower by depositing in immedi
ately available funds the amount thereof in an account of the
Borrower designated by the Borrower maintained with Fleet.
Section 2.4 Fleet Note.
The Fleet Loans shall be evidenced by a single
promissory note of the Borrower payable to the order of Fleet and
dated the date of this Agreement. The promissory note shall be
in the principal amount of Fifty Million ($50,000,000) Dollars
and shall be in the form of Exhibit A annexed hereto (the "Fleet
Note").
Section 2.5 Repayment of Principal of Fleet Loans.
The aggregate outstanding principal amount of the
Fleet Loans shall be payable, together with all accrued interest
thereon, in a single installment on the Fleet Credit Termination
Date.
Section 2.6 Interest.
(a) The Borrower shall pay to Fleet interest on
the unpaid principal amount of the Fleet Loans for the period
commencing on the date that each Fleet Loan is made until such
Fleet Loan is paid in full, at the following rates per annum:
(i) During the periods that such Fleet Loan
is a Prime Rate Loan, the Alternate Base Rate; and
(ii) During the periods that such Fleet Loan
is a LIBOR Loan, for each Interest Period relating thereto, the
LIBOR Rate for such Loan for such Interest Period plus .45%.
Notwithstanding the foregoing, the Borrower shall pay interest on
any Fleet Loan or any installment thereof, and on any other
amount payable by the Borrower hereunder which shall not be paid
in full when due (whether at stated maturity, by acceleration or
otherwise) for the period commencing on the due date thereof
until the same is paid in full at the applicable Post-Default
Rate. Accrued interest on the Fleet Loans shall be payable on
the dates set forth in the Banks' Loan Agreement.
(b) Anything in this Agreement or the Fleet Note
to the contrary notwithstanding, the obligation of the Borrower
to make payments of interest shall be subject to the limitation
that payments of interest shall not be required to be made to
Fleet to the extent that Fleet's receipt thereof would not be
permissible under the law or laws applicable to Fleet limiting
rates of interest which may be charged or collected by Fleet.
Any such payments of interest which are not made as a result of
the limitation referred to in the preceding sentence shall be
made by the Borrower to Fleet on the earliest interest payment
date or dates on which the receipt thereof would be permissible
under the laws applicable to Fleet limiting rates of interest
which may be charged or collected by Fleet. Such deferred
interest shall not bear interest.
Section 2.7 Fleet Fees.
(a) Simultaneously with the execution and deliv
ery of this Agreement, the Borrower shall pay to Fleet a facility
fee (the "Fleet Fee") as set forth in a separate written agree
ment between the Borrower and the Bank.
(b) The Borrower shall pay to Fleet a commitment
fee (the "Fleet Commitment Fee") on the amount of the Line of
Credit Availability from the date hereof to and including the
earlier of the date the Line of Credit Availability is terminated
or the Fleet Credit Termination Date, at the rate of .125% per
annum on the Line of Credit Availability. The accrued Fleet
Commitment Fee shall be payable quarterly commencing on July 31,
1998 and on the Fleet Credit Termination Date.
Section 2.8 Use of Proceeds of Fleet Loans.
The proceeds of the Fleet Loans shall be used by
the Borrower for general corporate and working capital purposes.
Section 2.9 Computations.
Interest on the Fleet Loans and the Fleet Commit
ment Fee shall be computed on the basis of a year of 360 days and
actual days elapsed (including the first day but excluding the
last) occurring in the period for which payable.
Section 2.10 Minimum Amounts of Borrowings,
Conversions and Repayments.
Except for borrowings, conversions and repayments
which exhaust the full remaining amount of the Line of Credit
availability (in the case of borrowings) or result in the conver
sion or repayment of all Fleet Loans of a particular type (in the
case of conversions or repayments) or conversions made pursuant
to Section 2.23 of the Banks' Loan Agreement, each borrowing,
each conversion of Fleet Loans of one type into Fleet Loans of
another type and each repayment of principal of Fleet Loans here-
under shall be in an amount at least equal to One Million
($1,000,000) Dollars or a multiple of $1,000,000 (borrowings,
conversions and repayments of different types of Fleet Loans at
the same time hereunder to be deemed separate borrowings, conver
sions and repayments for purposes of the foregoing, one for each
type).
Section 2.11 Time and Method of Payments.
All payments of principal, interest, fees and
other charges (including indemnities) payable by the Borrower
hereunder shall be made in Dollars, in immediately available
funds, to Fleet as set forth in the Banks' Loan Agreement (and
Fleet may, but shall not be obligated to, debit the amount of any
such payment that is not made as provided in the Banks' Loan
Agreement to any ordinary deposit account of the Borrower with
Fleet). Additional provisions relating to payments are set forth
in Section 10.3 of the Banks' Loan Agreement and are incorporated
by reference herein.
Section 2.12 Reductions in Line of Credit Availability.
The Borrower shall be entitled to reduce or termi-
nate the Line of Credit Availability provided that the Borrower
shall give notice of such reduction or termination to the Bank as
provided in Section 2.3 of the Banks' Loan Agreement and any
partial reduction of the Line of Credit Availability shall be in
an aggregate amount equal to Ten Million ($10,000,000) Dollars or
an integral multiple thereof. Any such reduction shall be
permanent and irrevocable.
Section 2.13 Incorporation of Certain Provisions.
The provisions of Sections 2.19 through 2.24
inclusive of the Banks' Loan Agreement and all other sections of
the Banks' Loan Agreement to which such Sections 2.19 through
2.24 refer are hereby incorporated by reference as if the provi
sions thereof were set forth in full herein.
Article 3. Representations and Warranties.
The Borrower hereby represents and warrants to Fleet
that:
Section 3.1 Article 3 of Banks' Loan
Agreement; No Defaults.
(a) Each and every one of the representations and
warranties set forth in Article 3 of the Banks' Loan Agreement is
true in all respects as of the date hereof, except for changes in
the ordinary course of business, which, either singly or in the
aggregate, are not materially adverse to the business or ▇▇▇▇▇
cial condition of the Borrower.
(b) As of the date hereof, there exists no Event
of Default under the Banks' Loan Agreement, and no event which,
with the giving of notice or lapse of time or both, would consti
tute such an Event of Default.
Section 3.2 Power, Authority, Consents.
The Borrower has the power to execute, deliver and
perform the Fleet Loan Documents to be executed by it. The
Borrower has the power to borrow hereunder and has taken all
necessary action to authorize the borrowing hereunder on the
terms and conditions of this Agreement. The Borrower has taken
all necessary action, corporate or otherwise, to authorize the
execution, delivery and performance of the Fleet Loan Documents
to be executed by it. No consent or approval of any Person
(including, without limitation, any stockholder of the Borrower),
no consent or approval of any landlord or mortgagee, no waiver of
any Lien or right of distraint or other similar right and no
consent, license, approval, authorization or declaration of any
governmental authority, bureau or agency, is or will be required
in connection with the execution, delivery or performance by the
Borrower, or the validity or enforcement of the Fleet Loan Documents.
Section 3.3 No Violation of Law or Agreements.
The execution and delivery by the Borrower of each
Fleet Loan Document and performance by it hereunder and thereun
der, will not violate any provision of law and will not, conflict
with or result in a breach of any order, writ, injunction,
ordinance, resolution, decree, or other similar document or
instrument of any court or governmental authority, bureau or
agency, domestic or foreign, or any certificate of incorporation
or by-laws of the Borrower or create (with or without the giving
of notice or lapse of time, or both) a default under or breach of
any agreement, bond, note or indenture to which the Borrower is a
party, or by which the Borrower is bound or any of its properties
or assets is affected, or result in the imposition of any Lien of
any nature whatsoever upon any of the properties or assets owned
by or used in connection with the business of the Borrower.
Section 3.4 Due Execution, Validity, Enforceability.
This Agreement and each other Fleet Loan Document
has been duly executed and delivered by the Borrower and each
constitutes the valid and legally binding obligation of the
Borrower, enforceable in accordance with its terms, except as
such enforcement may be limited by applicable bankruptcy, insol
vency, reorganization, moratorium, or other similar laws, now or
hereafter in effect, relating to or affecting the enforcement of
creditors' rights generally and except that the remedy of specif-
ic performance and other equitable remedies are subject to
judicial discretion.
Article 4. Conditions Precedent to the Fleet Loans.
The obligation of Fleet to make the Fleet Loans hereun
der shall be subject to the fulfillment (to the satisfaction of
Fleet) of the following conditions precedent:
(a) The Borrower shall have executed and delivered to
Fleet this Agreement and the Fleet Note.
(b) Fleet shall have received the Fleet Fee.
(c) Fleet shall have received a Compliance Certificate
from the Borrower dated the date hereof and the matters certified
therein, including, without limitation, that after giving effect
to the terms and conditions of this Agreement, no Default or
Event of Default shall exist, shall be true.
(d) ▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to the Borrower, shall
have delivered its legal opinion to Fleet, in form and substance
satisfactory to Fleet and its counsel.
(e) Fleet shall have received copies of the following:
(i) All corporate action taken by the Borrower to
authorize the execution, delivery and performance of this Agree
ment, the Fleet Note and the transactions contemplated hereby,
certified by its secretary;
(ii) A certificate from the secretary of the
Borrower to the effect that the By-laws of the Borrower delivered
to Fleet Bank, N.A., as Agent pursuant to the Banks' Loan Agree
ment have not been amended since the date of such delivery and
that such document is in full force and effect and is true and
correct as of the date hereof; and
(iii) An incumbency certificate (with specimen
signatures) with respect to the Borrower.
(f) All legal matters incident hereto shall be satis
factory to Fleet and its counsel.
Article 5. Covenants.
From the date hereof and so long as this Agreement
shall be outstanding and until payment in full of all of the
Obligations, the Borrower agrees to comply with and perform each
and every covenant and condition set forth in Articles 5, 6 and 7
of the Banks' Loan Agreement, which Articles 5, 6 and 7 are
hereby incorporated herein by reference.
Article 6. Events of Default.
If any one or more of the following events ("Events of
Default") shall occur and be continuing, the entire unpaid
balance of the principal of and interest on the Fleet Note and
all other Obligations and indebtedness of the Borrower to Fleet
arising hereunder and under the other Fleet Loan Documents shall
immediately become due and payable upon written notice to that
effect given to the Borrower by Fleet (except that in the case of
the occurrence of any Event of Default described in Section 8.7
of the Banks' Loan Agreement, as such Section 8.7 is hereinafter
incorporated herein by reference, no such notice shall be re
quired), without presentment or demand for payment, notice of
non-payment, protest or further notice or demand of any kind, all
of which are expressly waived by the Borrower; provided, however,
that in the case of the occurrence of an Event of Default de
scribed in Section 6.1 below, no such notice shall be required
after the passage of ten (10) days after the Grace Period pro
vided for therein:
Section 6.1 Payments.
Failure to make any payment of principal or
interest upon the Fleet Note or any fee pursuant to this Agree
ment within three (3) Business Days after the due date thereof
(the "Grace Period"); or
Section 6.2 Other Covenants.
Failure by the Borrower to perform or observe any
other term, condition or covenant of this Agreement or of any of
the other Fleet Loan Documents to which it is a party, which
shall remain unremedied for a period of fifteen (15) days after
notice thereof shall have been given to the Borrower by Fleet; or
Section 6.3 Other Events of Default.
An Event of Default (as defined in the Banks' Loan
Agreement) shall occur and be continuing under the Banks' Loan
Agreement, (provided in the event the Banks' Loan Agreement is
terminated for any reason whatsoever or the indebtedness thereun
der is paid in full, the covenants contained in Articles 5, 6 and
7 of the Banks' Loan Agreement and the Events of Default defined
in Article 8 of the Banks' Loan Agreement, together with the
definitions of all of the defined terms used therein and all
other portions of the Banks' Loan Agreement to which reference is
made in such Articles, will be incorporated by reference and the
same shall be applicable herein, mutatis mutandis, and will be
deemed to continue in effect until this Agreement is terminated
and all of the Obligations under this Agreement are fully paid
and performed).
Article 7. Miscellaneous Provisions.
Section 7.1 Miscellaneous Provisions
Incorporated by Reference.
The miscellaneous provisions under Article 10 of
the Banks' Loan Agreement and all other sections of the Banks'
Loan Agreement to which Article 10 refers are hereby incorporated
by reference as if the provisions thereof were set forth in full
herein.
Section 7.2 References in the Banks' Loan Agreement.
All references in the Banks' Loan Agreement to the
"Agent" or the "Banks", to the extent that such references are
incorporated herein, shall be deemed references hereunder to
Fleet.
Section 7.3 Incorporation of Banks' Loan Agreement.
Any term or provision of the Banks' Loan Agree
ment, as in effect on the date of this Agreement, which has been
incorporated herein by reference and which is hereafter amended
or modified, shall unless the parties hereto otherwise agree in
writing, automatically be incorporated herein as so amended, from
and after the effective date of any such amendment, without the
necessity of the execution and delivery of any instrument or
document or the taking of any action.
Section 7.4 Counterparts.
This Agreement may be signed in any number of
counterparts with the same effect as if the signatures thereto
and hereto were upon the same instrument.
Section 7.5 Binding Effect; No Assignment or Delegation.
This Agreement shall be binding upon and inure to
the benefit of the Borrower and its successors and to the benefit
of Fleet and its successors and assigns. The rights and obliga-
tions of the Borrower under this Agreement shall not be assigned
or delegated without the prior written consent of Fleet, and any
purported assignment or delegation without such consent shall be
void.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the date first above written.
NATIONAL CONSUMER COOPERATIVE BANK,
D/B/A NATIONAL COOPERATIVE BANK
By:________________________________
Title
FLEET BANK, N.A.
By
Title
EXHIBIT A
TO FLEET LOAN AGREEMENT
BY AND BETWEEN
NATIONAL CONSUMER COOPERATIVE BANK
AND
FLEET BANK, N.A.
FORM OF FLEET NOTE
$50,000,000 Due August 31, 1998
New York, New York
FOR VALUE RECEIVED, NATIONAL CONSUMER COOPERATIVE BANK D/B/A
NATIONAL COOPERATIVE BANK (the "Borrower"), hereby promises to
pay to the order of FLEET BANK, N.A. (the "Bank") the principal
sum of FIFTY MILLION ($50,000,000) DOLLARS (or such lesser amount
as shall equal the aggregate unpaid principal amount of the Fleet
Loans made by the Bank under the Loan Agreement hereinafter
defined, shown on the schedule annexed hereto and any continua
tion thereof), in lawful money of the United States of America
and in immediately available funds on the date or dates deter
mined as provided in the Loan Agreement but in no event later
than August 31, 1998.
The Borrower further promises to pay to the order of the
Bank interest on the unpaid principal amount of each Fleet Loan
from the date such Fleet Loan is made until paid in full, payable
at such rates and at such times as provided for in the Loan
Agreement.
The Bank has been authorized by the Borrower to record on
the schedule annexed to this Note (or on any continuation
thereof) the amount, type, due date and interest rate of each
Fleet Loan made by the Bank under the Loan Agreement and the
amount of each payment or repayment of principal and the amount
of each payment of interest of each such Fleet Loan received by
the Bank, it being understood, however, that failure to make any
such notation shall not affect the rights of the Bank or the
obligations of the Borrower hereunder or under the Loan Agreement
in respect of such Fleet Loans. Such notations shall be deemed
correct, absent manifest error.
This Note is the Fleet Note referred to in the Fleet Loan
Agreement dated as of the date hereof (the "Loan Agreement")
between the Borrower and the Bank and evidences the Fleet Loans
made by the Bank thereunder. Capitalized terms used in this
Note have the respective meanings assigned to them in the Loan
Agreement.
Upon the occurrence of an Event of Default under the Loan
Agreement, the principal hereof and accrued interest hereon shall
become, or may be declared to be, forthwith due and payable in
the manner, upon the conditions and with the effect provided in
the Loan Agreement.
The Borrower may at its option repay all or any part of the
principal of this Note before maturity upon and subject to the
terms provided in the Loan Agreement.
The Borrower agrees to pay costs of collection and reason-
able attorneys' fees in case default occurs in the payment of
this Note.
Presentment for payment, notice of dishonor, protest and
notice of protest are hereby waived.
This Note has been executed and delivered this 6th day of
May, 1998 in New York, New York, and shall be construed in
accordance with and governed by the internal laws of the State of
New York.
NATIONAL CONSUMER COOPERATIVE BANK
D/B/A NATIONAL COOPERATIVE BANK
By:________________________________
Title
SCHEDULE TO FLEET NOTE
MADE BY NATIONAL CONSUMER COOPERATIVE BANK
IN FAVOR OF FLEET BANK, N.A.
This Note evidences the Fleet Loans made under the within
described Agreement, in the principal amounts, of the types
(Prime Rate Loans or LIBOR Loans) and on the dates set forth
below, subject to the payments or repayments set forth below:
Date Made Prin. Amt. Type Due Date Int. Rate Amt. of
or of of of on Payment or Balance Notation
Converted Loan Loan Loan Loan Repayment Outstanding made by