Exhibit 20
FOURTH AMENDED AND RESTATED LOAN AGREEMENT
AGREEMENT, made as of the 12th day of February, 2002, by and among:
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");
The Banks which have executed this Agreement (individually, a "BANK"
and, collectively, the "BANKS"); and
FLEET NATIONAL BANK, as Administrative Agent for the Banks (in such
capacity, together with its successors in such capacity, the "AGENT");
W I T N E S S E T H:
(A) The Borrower, the Agent and the banks signatory thereto 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, (ii) Amendment No. 2 to Third
Amended and Restated Loan Agreement dated as of May 26, 1999, (iii) Amendment
No. 3 to Third Amended and Restated Loan Agreement dated as of May 24, 2000, and
(iv) Amendment No. 4 to Third Amended and Restated Loan Agreement dated as of
May 23, 2001 (as so amended, the "ORIGINAL LOAN AGREEMENT");
(B) The Borrower has requested, among other things, that the Banks
increase the aggregate "Total Commitment" as defined in the Original Loan
Agreement from $328,000,000 to $350,000,000; and
(C) The Banks are willing to so increase the Total Commitment, but only
on the condition, among other things, that the Borrower agree to amend and
restate the Original Loan Agreement as provided herein;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, the parties hereto agree that the Original Loan
Agreement (including, all Exhibits and Schedules thereto) is hereby amended and
restated in its entirety to read as follows:
ARTICLE 1 DEFINITIONS; EFFECTIVE DATE.
(a) As used in this Agreement, the following terms shall have the
following meanings:
"A COMMITMENT" - as to each Bank, the amount set opposite such Bank's
name on the signature pages hereto under the caption "A Commitment" or, if such
Bank has entered into one or more Assignments and Acceptances, set forth for
such Bank in the Register maintained by the Agent pursuant to Section 10.14(d)
as such Bank's "A Commitment", as such amount is subject to reduction in
accordance with the terms hereof.
"A COMMITMENT TERMINATION DATE" - February 11, 2005.
"A CREDIT PERIOD" - the period commencing on the Effective Date and
ending on the A Commitment Termination Date.
"AFFECTED LENDER" - as defined in Section 2.25 hereof.
"A LOAN" and "A LOANS" - as defined in subsection 2.1(a) hereof. A
Loans of different types made or converted from A Loans of other types on the
same day (or of the same type but having different Interest Periods) shall be
deemed to be separate A Loans for all purposes of this Agreement.
"A NOTE" and "A NOTES" - as defined in subsection 2.13(a) hereof.
"ADDITIONAL COSTS" - as defined in Section 2.20 hereof.
"AFFECTED LOANS" - as defined in Section 2.23 hereof.
"AFFECTED TYPE" - as defined in Section 2.23 hereof.
"AFFILIATE" - as to any Person, any other Person which directly or
indirectly controls, or is under common control with, or is controlled by, such
Person. As used in this definition, "control" (including, with its correlative
meanings, "controlled by" and "under common control with") shall mean
possession, directly or indirectly, of power to direct or cause the direction of
management or policies (whether through ownership of securities or partnership
or other ownership interests, by contract or otherwise), provided that, in any
event: (i) any Person which owns directly or indirectly securities having 5% or
more of the ordinary voting power for the election of directors or other
governing body of a corporation or 5% or more of the partnership or other
ownership interests of any other Person (other than as a limited partner of such
other Person) will be deemed to control such corporation or other Person; and
(ii) each shareholder, director and officer of the Borrower shall be deemed to
be an Affiliate of the Borrower.
"AGREEMENT" - this Fourth Amended and Restated Loan Agreement as the
same may from time to time be supplemented, amended or modified.
"ALTERNATE BASE RATE" - for any day, a rate per annum (rounded upwards,
if necessary, to the next 1/16th of 1%) equal to the greater of (a) the Prime
Rate in effect on such day, and (b) 0.5% plus the Federal Funds Rate in effect
on such day.
"ALTERNATE SWING LOAN INTEREST RATE" - as defined in subsection
2.1(c)(iii) hereof.
"APPLICABLE LENDING OFFICE" - with respect to each Bank, the Lending
Office designated below its name on the signature pages hereto or in the
Assignment and Acceptance pursuant to which it became a Bank hereunder, or such
other office of such Bank or of an affiliate of such Bank as such Bank may from
time to time specify to the Agent and the Borrower as the office at which its
Loans of such type are to be made and maintained.
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"APPLICABLE MARGIN" - on any date, with respect to LIBOR Loans, the
applicable percentage set forth below based upon the Ratings in effect on such
date:
CATEGORY 1 A LOANS B LOANS
---------- ------- -------
A3 or higher by ▇▇▇▇▇'▇; .575% .600%
A- or higher by S&P
CATEGORY 2
----------
Baa1 by ▇▇▇▇▇'▇; .675% .700%
BBB+ by S&P
CATEGORY 3
----------
Baa2 by ▇▇▇▇▇'▇ .750% .800%
BBB by S&P
CATEGORY 4
----------
Baa3 by ▇▇▇▇▇'▇ .950% 1.00%
BBB- by S&P
CATEGORY 5
----------
Lower than Baa3 by ▇▇▇▇▇'▇ 1.15% 1.20%
Lower than BBB- by S&P
- or -
No Rating by S&P or ▇▇▇▇▇'▇
For purposes of the foregoing, if the Ratings shall fall within different
Categories, the Applicable Margin shall be based on the lower Rating (and higher
Applicable Margin); provided, however, in the event the Categories in which the
Ratings fall are more than one Category apart, the Applicable Margin shall be
based on the Rating that is one level higher than the lower of the two
Categories. If any Rating shall be changed (other than as a result of a change
in the rating system of the applicable Rating Agency), such change shall be
effective as of the date on which it is first announced by the Rating Agency
making such change. Each such change in the Applicable Margin shall apply to all
outstanding LIBOR Loans during the period commencing on the effective date of
such change and ending on the date immediately preceding the effective date of
the next such change. If the rating system of any Rating Agency shall change,
the parties hereto shall negotiate in good faith to amend the references to
specific ratings in this definition to reflect such changed rating system.
"ASSET SECURITIZATION" - with respect to any Person, a transaction
involving the sale or transfer of receivables by such Person to a special
purpose corporation or grantor trust (an "SPV") established solely for the
purpose of purchasing such receivables from the Borrower for Cash in an amount
equal to the Fair Market Value thereof; provided, however, that the Borrower
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may (A) establish and maintain a reserve account containing Cash or Securities
as a credit enhancement in respect of any such sale, or (B) purchase or retain a
subordinated interest in such receivables being sold.
"ASSET SECURITIZATION RECOURSE LIABILITY" - with respect to any Person,
the maximum amount of such Person's liability (whether matured or contingent)
under any agreement, note or other instrument in connection with any one or more
Asset Securitizations in which such Person has agreed to repurchase receivables
or other assets, to provide direct or indirect credit support (whether through
cash payments, the establishment of reserve accounts containing cash or
Securities, an agreement to reimburse a provider of a letter of credit for any
draws thereunder, the purchase or retention of a subordinated interest in such
receivables or other assets, or other similar arrangements), or in which such
Person may be otherwise liable for all or a portion of any SPV's obligations
under Securities issued in connection with such Asset Securitizations.
"ASSIGNMENT AND ACCEPTANCE" - an assignment and acceptance entered into
by a Bank and an Eligible Assignee, and accepted by the Agent and, so long as no
Event of Default shall have occurred and be continuing, by the Borrower, in
accordance with Section 10.14 and in substantially the form of Exhibit B hereto.
"ATTRIBUTABLE INDEBTEDNESS" - on any date, (a) in respect of any
capital lease of any Person, the capitalized amount thereof that would appear on
a balance sheet of such Person prepared as of such date in accordance with GAAP,
and (b) in respect of any Synthetic Lease Obligation, the capitalized amount of
the remaining lease payments under the relevant lease that would appear on a
balance sheet of such Person prepared as of such date in accordance with GAAP if
such lease were accounted for as a capital lease.
"B COMMITMENT" - as to each Bank, the amount set opposite such Bank's
name on the signature pages hereto under the caption "B Commitment" or, if such
Bank has entered into one or more Assignments and Acceptances, set forth for
such Bank in the Register maintained by the Agent pursuant to Section 10.14(d)
as such Bank's "B Commitment", as such amount is subject to reduction in
accordance with the terms hereof.
"B COMMITMENT TERMINATION DATE" - February 11, 2003, as such date may
be extended pursuant to subsection 2.1(b)(ii) hereof.
"B CREDIT PERIOD" - the period commencing on the Effective Date and
ending on the B Commitment Termination Date.
"B LOAN" and "B LOANS" - as defined in subsection 2.1(b) hereof. B
Loans of different types made or converted from B Loans of other types on the
same day (or of the same type but having different Interest Periods) shall be
deemed to be separate B Loans for all purposes of this Agreement.
"B NOTE" and "B NOTES" - as defined in subsection 2.13(b) hereof.
"BORROWING NOTICE" - as defined in Section 2.3 hereof.
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"BUSINESS DAY" - any day other than Saturday, Sunday or other day on
which commercial banks in
New York City are authorized or required to close
under the laws of the State of
New York and, if the applicable day relates to a
LIBOR Loan, or an Interest Period for a LIBOR Loan, the day on which dealings in
dollar Deposits are also carried on in the London interbank market and banks are
open for business in London.
"CAPITALIZED LEASE" - any lease the obligation for Rentals with respect
to which is required to be capitalized on a balance sheet of the lessee in
accordance with generally accepted accounting principles.
"CASH" - as to any Person, such Person's cash and cash equivalents, as
defined in accordance with GAAP consistently applied.
"CLASS A NOTES" - the class A notes issued by the Borrower to the
Secretary of the Treasury on behalf of the United States pursuant to Section
3026(a)(3)(A) of the National Consumer Cooperative Bank Act, as amended, 12
U.S.C. Section 3001, ET SEQ. (the "Bank Act") on the Final Government Equity
Redemption Date (the "Redemption Date") in full and complete redemption of
the class A stock of the Borrower held by the Secretary of the Treasury on
such Redemption Date and replacement notes for such class A notes in a
principal amount(s) not greater than those notes being replaced and
containing identical terms of subordination as the class A notes. The terms
"class A notes", "Final Government Equity Redemption Date", and "class A
stock" are defined in the Bank Act, which definitions are incorporated by
this reference as if fully set forth herein.
"CLASS B STOCK" - "class B stock" the terms of which are defined in
12 U.S.C. Section 3014 as in effect on December 15, 1993.
"CLASS B1 COMMON STOCK" - the series of Class B Stock comprising
Class B Stock purchased for cash after June 28, 1984.
"CODE" - the Internal Revenue Code of 1986, as amended, or any
successor statute.
"COMPLIANCE CERTIFICATE" - a certificate executed by the president or
chief financial officer or treasurer of the Borrower to the effect that, as of
the effective date of the certificate, no Default or Event of Default under this
Agreement exists or would exist after action intended to be taken by the
Borrower, as described in such certificate, including, without limitation, that
the covenants set forth in Section 6.9 would not be breached after giving effect
to such action, together with a calculation in reasonable detail, and in form
and substance satisfactory to the Agent, of such compliance.
"CONFIDENTIAL INFORMATION" means financial statements, agreements,
reports, certificates and other information that the Borrower, or any of its
agents, furnishes to the Agent or any Bank in writing designated as confidential
(but including, regardless of whether or not so designated, any information
relating to (i) the economic and legal (including contractual) arrangements
between (a) the Borrower and (b) its customers, (ii) details with respect to
information of the Borrower, and (iii) acquisition and other investment
opportunities available to the Borrower), but does not include any such
information that is or becomes generally available to the public other
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than as a result of a breach by the Agent or any Bank of its obligations
hereunder or that is or becomes available to the Agent or such Bank from a
source other than the Borrower that is not, to the best of the Agent's or such
Bank's knowledge, acting in violation of a confidentiality agreement with the
Borrower.
"CONSOLIDATED ADJUSTED NET INCOME" - for any fiscal period of the
Borrower, net earnings or net loss (determined on a consolidated basis) of the
Borrower and its Subsidiaries after income taxes for such period, but EXCLUDING
from the determination of such earnings the following items (together with the
income tax effect, if any, applicable thereto): (i) the proceeds of any life
insurance policy; (ii) any gain or loss arising from the sale of capital assets;
(iii) any gain arising from any reappraisal, revaluation or write-up of assets;
(iv) any gain arising from transactions of a non-recurring or non-operating and
material nature or arising from sales or other dispositions relating to the
discontinuance of operations; (v) earnings of any Subsidiary accrued prior to
the date it became a Subsidiary; (vi) earnings of any corporation, substantially
all the assets of which have been acquired in any manner, realized by such other
corporation prior to the date of such acquisition; (vii) net earnings of any
business entity (other than a Subsidiary) in which the Borrower or any
Subsidiary has an ownership interest unless such net earnings shall have
actually been received by the Borrower or such Subsidiary in the form of cash
distributions, (viii) any portion of the net earnings of any Subsidiary which
for any reason is unavailable for payment of dividends to the Borrower or any
other Subsidiary, (ix) the earnings of any Person to which assets of the
Borrower shall have been sold, transferred or disposed of, or into which the
Borrower shall have merged, prior to the date of such transaction, (x) any gain
arising from the acquisition of any securities of the Borrower or any of its
Subsidiaries, and (xi) any amortization of deferred or other credit representing
the excess of the equity in any Subsidiary at the date of acquisition thereof
over the amount invested in such Subsidiary.
"CONSOLIDATED ADJUSTED NET WORTH" - at any time, with respect to the
Borrower and its Subsidiaries (determined on a consolidated basis), the amount
of capital stock plus (or minus in the case of a deficit), the capital surplus
and earned surplus of the Borrower and its Subsidiaries, less (without
duplication) the sum of the net book value, after deducting any reserves
applicable thereto, of all items of the following character which are included
in the assets of the Borrower and its Subsidiaries:
(i) all deferred charges and prepaid expenses other than
prepaid taxes and prepaid insurance premiums;
(ii) treasury stock;
(iii) unamortized debt discount and expense and unamortized
stock discount and expense;
(iv) goodwill, the excess of the cost of assets acquired over
the book value of such assets on the books of the transferor, the excess of the
cost of investments in any Person (including any Subsidiary) over the value of
such investments on the books of such Person at the time of making such
investments, organizational or experimental expense, patents, trademarks,
copyrights, trade names and other intangibles;
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(v) all receivables (other than Eurodollar deposits) owing by
Persons whose principal place of business or principal assets are located in any
jurisdiction other than the United States of America or Canada; and
(vi) any increment resulting from any reappraisal, revaluation
or write-up of capital assets subsequent to September 30, 2001.
If the Borrower or any of its Subsidiaries shall have any Investments which are
not permitted under this Agreement, such Investments shall be excluded from the
calculation of Consolidated Adjusted Net Worth.
"CONSOLIDATED DEBT" - as at any date of determination thereof, the
aggregate amount of all Indebtedness of the Borrower and its Subsidiaries, plus,
without duplication, the aggregate amount of the obligations of the Borrower and
its Subsidiaries set forth below, at such time:
(a) the principal amount of all recourse and non-recourse
interest bearing obligations of the Borrower or any Subsidiary including,
without limitation, any such obligations bearing an implicit rate of interest,
such as Capitalized Leases, and interest bearing obligations secured by any Lien
upon Property owned by the Borrower or any Subsidiary, even though such Person
has not assumed or become liable for the payment of such obligations;
(b) the aggregate amount of all demand and term deposits made
by any Person with the Borrower or any Subsidiary (including, without
limitation, certificates of deposit issued by the Borrower or any Subsidiary);
and
(c) the face amount of all letters of credit issued by the
Borrower or any Subsidiary and all bankers' acceptances accepted by the Borrower
or any Subsidiary.
"CONSOLIDATED EARNINGS AVAILABLE FOR FIXED CHARGES" - for any period
shall mean the sum of: (i) Consolidated Adjusted Net Income for such period;
PLUS (ii) to the extent deducted in determining Consolidated Adjusted Net Income
for such period, (a) all provisions for any Federal, state or other income taxes
made by the Borrower and its Subsidiaries during such period, and (b)
Consolidated Fixed Charges during such period PLUS (iii) contributions made by
the Borrower to Development Corp.
"CONSOLIDATED EFFECTIVE NET WORTH" - at any time means the sum of
(a) Consolidated Adjusted Net Worth at such time; PLUS
(b) the aggregate outstanding principal amount of Class A
Notes at such time.
"CONSOLIDATED FIXED CHARGES" - with respect to the Borrower on a
consolidated basis for any period shall mean the sum of: (i) all interest and
all amortization of Indebtedness, amortized discount and expense on all
Indebtedness for borrowed money of the Borrower and its Subsidiaries, PLUS
(ii) all Rentals payable during such period by the Borrower and its
Subsidiaries.
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"CONSOLIDATED NET EARNINGS" - for any period, the net income or loss of
the Borrower and its Subsidiaries, as applicable (determined on a consolidated
basis for such Persons at such time), for such period, as determined in
accordance with GAAP in effect at such time.
"CONTROLLED GROUP" - all members of a controlled group of corporations
and all trades or businesses (whether or not incorporated) under common control
which, together with the Borrower, are treated as a single employer under
Section 414(b), 414(c) or 414(m) of the Internal Revenue Code of 1986, as
amended, and Section 4001(a)(2) of ERISA.
"DEBT INSTRUMENT" - as defined in Section 8.5 hereof.
"DEFAULT" - an event which with notice or lapse of time or both would
constitute an Event of Default.
"DEVELOPMENT CORP." - NCB Development Corporation, a District of
Columbia non-profit corporation established pursuant to 12 U.S.C.
Section 3051(b).
"DOLLARS" - and "$" - lawful money of the United States of America.
"EFFECTIVE DATE" - February 12, 2002.
"ELIGIBLE ASSIGNEE" - (a) a Bank; (b) an Affiliate of a Bank; and (c)
subject to the prior approval of the Agent and, so long as no Event of Default
shall have occurred and be continuing, the Borrower, such approval by the Agent
or the Borrower not to be unreasonably withheld or delayed, (i) a commercial
bank organized under the laws of the United States, or any State thereof, and
having total assets in excess of $500,000,000; (ii) a savings association or
savings bank organized under the laws of the United States, or any State
thereof, and having total assets in excess of $500,000,000; (iii) a commercial
bank organized under the laws of any other country that is a member of the OECD
or has concluded special lending arrangements with the International Monetary
Fund associated with its General Arrangements to Borrow or of the Cayman
Islands, or a political subdivision of any such country, and having total assets
in excess of $500,000,000, so long as such bank is acting through a branch or
agency located in the United States; (iv) the central bank of any country that
is a member of the OECD; and (v) a finance company, insurance company or other
financial institution or fund (whether a corporation, partnership, trust or
other entity) that is engaged in making, purchasing or otherwise investing in
commercial loans (of a size similar to the Loans) in the ordinary course of its
business and having total assets in excess of $500,000,000; PROVIDED, HOWEVER,
that neither the Borrower nor any Affiliate of the Borrower shall qualify as an
Eligible Assignee under this definition.
"ELIGIBLE DERIVATIVES" - derivative Securities which are sold in the
ordinary course of the business of the Borrower and its Subsidiaries for the
purpose of hedging or otherwise managing portfolio risk.
"ERISA" - the Employee Retirement Income Security Act of 1974, as it
may be amended from time to time, and the regulations thereunder.
"EVENT OF DEFAULT" - as defined in Article 8 hereof.
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"EXTENSION REQUEST" as defined in subsection 2.1(b)(ii)(A) hereof.
"FACILITY FEE" - as defined in Section 2.4 hereof.
"FACILITY FEE PERCENTAGE" - on any date, the applicable percentage set
forth below based upon the Ratings in effect on such date:
CATEGORY 1 A LOANS B LOANS
---------- ------- -------
A3 or higher by ▇▇▇▇▇'▇; .175% .150%
A- or higher by S&P
CATEGORY 2
----------
Baa1 by ▇▇▇▇▇'▇; .200% .175%
BBB+ by S&P
CATEGORY 3
----------
Baa2 by ▇▇▇▇▇'▇ .250% .200%
BBB by S&P
CATEGORY 4
----------
Baa3 by ▇▇▇▇▇'▇ .300% .250%
BBB- by S&P
CATEGORY 5
----------
Lower than Baa3 by ▇▇▇▇▇'▇ .350% .300%
Lower than BBB- by S&P
- or -
No Rating by S&P or ▇▇▇▇▇'▇
For purposes of the foregoing, if the Ratings shall fall within different
Categories, the Facility Fee Percentage shall be based on the lower Rating (and
higher Facility Fee Percentage); provided, however, in the event the Categories
in which the Ratings fall are more than one Category apart, the Facility Fee
Percentage shall be based on the Rating that is one level higher than the lower
of the two Categories. If any Rating shall be changed (other than as a result of
a change in the rating system of the applicable Rating Agency), such change
shall be effective as of the date on which it is first announced by the Rating
Agency making such change. Each such change with respect to the Borrowers shall
apply at any time during the period commencing on the effective date of such
change and ending on the date immediately preceding the effective date of the
next such change. If the rating system of any Rating Agency shall change, the
parties hereto shall negotiate in good faith to amend the references to specific
ratings in this definition to reflect such changed rating system.
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"FAIR MARKET VALUE" - at any time with respect to any Property, the
sale value of such Property that would be realized in an arm's-length sale at
such time between an informed and willing buyer and an informed and willing
seller, under no compulsion to buy or sell, respectively.
"FEDERAL FUNDS RATE" - for any day, an interest rate per annum equal to
the weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published for such day (or, if such day is not a Business Day, for the
immediately preceding Business Day) by the Federal Reserve Bank of
New York, or,
if such rate is not so published for any day which is a Business Day, the
average of the quotations at approximately 10:00 a.m. (
New York time) on such
day on such transactions received by the Agent from three Federal funds brokers
of recognized standing selected by the Agent in its sole discretion.
"FINANCIAL STATEMENTS" - the consolidated statements of financial
condition of the Borrower and its Subsidiaries as of December 31 in the years
1999 and 2000 inclusive, and the related consolidated statements of income and
cash flows and changes in members' equity for the fiscal years ended on such
dates, in each case accompanied by reports thereon containing opinions without
qualification, except as therein noted, by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, independent
certified public accountants, and the consolidated balance sheet of the Borrower
and its Subsidiaries as of September 30, 2001 and the related consolidated
statements of income and cash flows and reconciliation of net income to net cash
provided by operating activities for the nine (9) month period ended on such
date.
"FLEET" - Fleet National Bank, having an office at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
"GAAP" - generally accepted accounting principles in the United States
of America as in effect on the date of this Agreement and applied on a basis
consistent with the Financial Statements.
"GRANTING BANK" - as defined in subsection 10.14(i) hereof.
"INDEBTEDNESS" - with respect to any Person, all (i) liabilities or
obligations, direct and contingent, which in accordance with GAAP would be
included in determining total liabilities as shown on the liability side of a
balance sheet of such Person at the date as of which Indebtedness is to be
determined, including, without limitation, contingent liabilities which, in
accordance with such principles, would be set forth in a specific Dollar amount
on the liability side of such balance sheet; (ii) liabilities or obligations of
others for which such Person is directly or indirectly liable, by way of
guaranty (whether by direct guaranty, suretyship, discount, endorsement,
take-or-pay agreement, agreement to purchase or advance or keep in funds or
other agreement having the effect of a guaranty) or otherwise; (iii) liabilities
or obligations secured by liens on any assets of such Person, whether or not
such liabilities or obligations shall have been assumed by it; (iv) liabilities
or obligations of such Person, direct or contingent, with respect to letters of
credit issued for the account of such Person and banker's acceptances credited
for such Person; (v) obligations in the form of demand and term deposit accounts
maintained by such Person; (vi) Asset Securitization Recourse Liabilities to the
extent, but only to the extent, that such obligations have matured; (vii) net
obligations (measured on a ▇▇▇▇ to market basis) under any Swap Contract; and
(viii) capital leases
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to the extent classified as a liability on the balance sheet in accordance with
GAAP and Synthetic Lease Obligations (the amount of any capital lease or
Synthetic Lease Obligation as of any date shall be deemed to be the amount of
Attributable Indebtedness in respect thereof as of such date).
"INTEREST PERIOD" - with respect to any LIBOR Loan, each period
commencing on the date such Loan is made or converted from a Loan or Loans of
another type, or the last day of the next preceding Interest Period with respect
to such Loan, and ending on the day that is 7 days thereafter or the first,
second, third, sixth or ninth calendar month thereafter, as the Borrower may
select as provided in Section 2.3 hereof, except that each such Interest Period
which commences on the last London Business Day of a calendar month (or on any
day for which there is no numerically corresponding day in the appropriate
subsequent calendar month) shall end on the last London Business Day of the
appropriate subsequent calendar month.
Notwithstanding the foregoing: (i) any Interest Period which commences prior to
a Payment Date shall end no later than such Payment Date if the aggregate
principal amount of the Loans or portions thereof to which such Interest Period
would be applicable would include any portion of the aggregate principal amount
of the Loans which is due and payable on such Payment Date; (ii) each Interest
Period which would otherwise end on a day which is not a Business Day shall end
on the next succeeding Business Day (or, in the case of an Interest Period for
LIBOR Loans, if such next succeeding London Business Day falls in the next
succeeding calendar month, on the next preceding London Business Day); (iii) no
more than fifteen (15) Interest Periods for LIBOR Loans shall be in effect at
the same time; (iv) any Interest Period for any type of A Loan which commences
before the A Commitment Termination Date shall end no later than the A
Commitment Termination Date and any Interest Period for any type of B Loan which
commences before the B Commitment Termination Date shall end no later than the B
Commitment Termination Date; and (v) notwithstanding clauses (i) and (iv) above,
no Interest Period shall have a duration of less than seven (7) days. In the
event that the Borrower fails to select the duration of any Interest Period for
any Loan within the time period and otherwise as provided in Section 2.3 hereof,
such Loan will be automatically converted into a Prime Rate Loan on the last day
of the preceding Interest Period for such Loan.
"INVESTMENT" - in any Person by the Borrower:
(a) the amount paid or committed to be paid, or the value of
property or services contributed or committed to be contributed, by the Borrower
for or in connection with the acquisition by the Borrower of any stock, bonds,
notes, debentures, partnership or other ownership interests or other securities
of such Person; and
(b) the amount of any advance, loan or extension of credit to,
or guaranty or other similar obligation with respect to any Indebtedness of,
such Person by the Borrower and (without duplication) any amount committed to be
advanced, loaned, or extended to, or the payment of which is committed to be
assured by a guaranty or similar obligation for the benefit of, such Person by
the Borrower.
"IRS" - Internal Revenue Service.
11
"LIBOR LOANS" - Loans the interest on which is determined on the basis
of rates referred to in the definition of "LIBOR Rate" in this Article 1.
"LIBOR RATE" - with respect to any LIBOR Loan, for any Interest Period
applicable thereto, the rate per annum as determined on the basis of the offered
rates for deposits in U.S. Dollars, for a period of time comparable to such
Interest Period for such LIBOR Loan which appears on the Telerate page 3750 as
of 11:00 a.m. London time on the day that is two (2) London Business Days
preceding the first day of such Interest Period for such LIBOR Loan; provided,
however, if the rate described above does not appear on the Telerate System on
any applicable interest determination date, the LIBOR Rate shall be the rate
(rounded upwards, if necessary, to the nearest one hundred-thousandth of a
percentage point), determined on the basis of offered rates for deposits in U.S.
Dollars for a period of time comparable to the Interest Period for such LIBOR
Loan which are offered by four major banks in the London interbank market at
approximately 11:00 a.m. London Time, on the day that is two (2) London Business
Days preceding the first day such Interest Period for such LIBOR Loan as
selected by the Agent. The principal London office of each of the four major
London banks will be requested to provide a quotation of its U.S. dollar deposit
offered rate. If at least two such quotations are provided, the rate for that
date will be the arithmetic mean of the quotations. If fewer than two quotations
are provided as requested, the rate for that date will be determined on the
basis of the rates quoted for loans in U.S. dollars to leading European banks
for a period of time comparable to such Interest Period for such LIBOR Loan
offered by major banks in
New York City at approximately 11:00 a.m.,
New York
City time, on the day that is two (2) London Business Days preceding the first
day of such LIBOR Loan. In the event that the Agent is unable to obtain any such
quotation as provided above, it will be deemed that the LIBOR Rate pursuant to a
LIBOR Loan cannot be determined. In the event that the Board of Governors of the
Federal Reserve System shall impose a Reserve Percentage with respect to LIBOR
deposits of any Bank, then for any period during which such Reserve Percentage
shall apply, the LIBOR Rate shall be equal to the amount determined above
divided by an amount equal to 1 minus the Reserve Percentage. "RESERVE
PERCENTAGE" shall mean the maximum aggregate reserve requirement (including all
basic, supplemental, marginal and other reserves) which is imposed on member
banks of the Federal Reserve System against "Euro-currency Liabilities" as
defined in Regulation D of the Board of Governors of the Federal Reserve System,
as in effect from time to time. The Agent shall use its best efforts to advise
the Borrower of the LIBOR Rate as soon as practicable after each change in the
LIBOR Rate; provided, however, that the failure of the Agent to so advise the
Borrower on any one or more occasions shall not affect the rights of the Banks
or the Agent or the obligations of the Borrower hereunder.
"LIEN" - any mortgage, deed of trust, pledge, security interest,
encumbrance, lien or charge of any kind (including any agreement to give any of
the foregoing), any conditional sale or other title retention agreement, any
lease in the nature of any of the foregoing, and the filing of or agreement to
give any financing statement under the Uniform Commercial Code of any
jurisdiction.
"LOAN" and "LOANS" - as defined in subsection 2.1(b) hereof.
"LOAN DOCUMENTS" - this Agreement, the Notes, and all other documents
executed and delivered in connection herewith or therewith, including all
amendments, modifications and supplements of or to all such documents.
12
"LONDON BUSINESS DAY" - a Business Day on which dealings in Dollar
deposits are carried out in the London interbank market.
"MAJORITY BANKS" - Banks having 66-2/3% of the aggregate amount of the
Total Commitments whether or not Loans or Swing Line Loans are outstanding
hereunder.
"MOODY'S" - ▇▇▇▇▇'▇ Investors Service, Inc., a Delaware corporation,
and any successor thereto.
"NCB CAPITAL" - NCB Capital Corporation, a Delaware corporation.
"NCCB SENIOR OBLIGATIONS" - at any date of determination thereof, with
respect to the Borrower, the sum of:
(a) the aggregate unpaid principal amount of Senior Debt, plus
(b) the aggregate amount of all Capitalized Leases, plus
(c) Restricted Guarantees computed on the basis of total
outstanding contingent liability, plus
(d) Asset Securitization Recourse Liabilities of the Borrower
(meeting the conditions set forth in either clause (i) or clause (ii) below):
(i) to the extent, but only to the extent, that such
obligations arise from the Borrower's obligation to repurchase receivables or
other assets as a result of a default in payment by the obligor thereunder or
any other default in performance by such obligor under any agreement related to
such receivables; or
(ii) if the Borrower shall maintain a reserve account
containing Cash or Securities in respect of any such obligations or shall retain
or purchase a subordinated interest therein, to the extent, but only to the
extent, of the amount of such reserve account or subordinated interest.
"NOTE" and "NOTES" - individually, each of the A Notes, the B Notes and
the Swing Line Note, and collectively, all of them.
"ORIGINAL LOAN AGREEMENT" - as defined in the first preamble hereof.
"PAID-IN-CAPITAL" - as determined in accordance with GAAP.
"PAYMENT DATES" - each Quarterly Date in each year commencing with the
June Quarterly Date.
"PBGC" - as defined in Section 3.17 hereof.
13
"PERMITTED LIENS" - (i) pledges or deposits by the Borrower under
▇▇▇▇▇▇▇'▇ compensation laws, unemployment insurance laws, social security laws,
or similar legislation, or good faith deposits in connection with bids, tenders,
contracts (other than for the payment of Indebtedness of the Borrower), or
leases to which the Borrower is a party, or deposits to secure public or
statutory obligations of the Borrower or deposits of cash or U.S. Government
Bonds to secure surety, appeal, performance or other similar bonds to which the
Borrower is a party, or deposits as security for contested taxes or import
duties or for the payment of rent; (ii) Liens imposed by law, such as carriers',
warehousemen's, materialmen's and mechanics' liens, or Liens arising out of
judgments or awards against the Borrower with respect to which the Borrower at
the time shall currently be prosecuting an appeal or proceedings for review;
(iii) Liens for taxes not yet subject to penalties for non-payment and Liens for
taxes the payment of which is being contested as permitted by Section 6.6
hereof; and (iv) Liens incidental to the conduct of the business of the Borrower
or to the ownership of its property which were not incurred in connection with
Indebtedness of the Borrower, all of which Liens do not in the aggregate
materially detract from the value of the properties to which they relate or
materially impair their use in the operation of the business of the Borrower.
"PERSON" - an individual, a corporation, a partnership, a joint
venture, a trust or unincorporated organization, a joint stock company or other
similar organization, a government or any political subdivision thereof, a
court, or any other legal entity, whether acting in an undivided fiduciary or
other capacity.
"PLAN" - at any time an employee pension benefit plan which is covered
by Title IV of ERISA or subject to the minimum funding standards under Section
412 of the Code and is either (i) maintained by the Borrower or any member of
the Controlled Group for employees of the Borrower, or by the Borrower for any
other member of such Controlled Group or (ii) maintained pursuant to a
collective bargaining agreement or any other arrangement under which more than
one employer makes contributions and to which the Borrower or any member of the
Controlled Group is then making or accruing an obligation to make contributions
or has within the preceding five plan years made contributions.
"POST-DEFAULT RATE" - (i) in respect of any Loans not paid when due
(whether at stated maturity, by acceleration or otherwise), a rate per annum
during the period commencing on the due date until such Loans are paid in full
equal to (a) if such Loans are Prime Rate Loans, 2% above the Prime Rate as in
effect from time to time for Prime Rate Loans, or (b) if such Loans are LIBOR
Loans, 2% above the rate of interest in effect thereon at the time of such
default until the end of the then current Interest Period therefor and,
thereafter, 2% above the Prime Rate as in effect from time to time for Prime
Rate Loans; and (ii) in respect of other amounts payable by the Borrower
hereunder (other than interest) not paid when due (whether at stated maturity,
by acceleration or otherwise), a rate per annum during the period commencing on
the due date until such other amounts are paid in full equal to 2% above the
Prime Rate as in effect from time to time for Prime Rate Loans.
"PRIME RATE" - the variable per annum rate of interest so designated
from time to time by Fleet as its prime rate. Notwithstanding the foregoing, the
Borrower acknowledges the fact that Fleet may regularly make domestic commercial
loans at rates of interest less than the rate of
14
interest referred to in the preceding sentence. Changes in the rate of interest
resulting from changes in the Prime Rate shall take place immediately without
notice or demand of any kind.
"PRIME RATE LOANS" - Loans (including Swing Line Loans) which bear
interest at a rate based upon the Alternate Base Rate.
"PROPERTY" - any interest in any kind of property or asset, whether
real, personal or mixed, or tangible or intangible.
"QUALIFIED ASSETS" - as at any date of determination thereof, the sum
of the following items (a), (b) and (c) owned by the Borrower:
(a) the principal amount of all promissory notes and other
interest bearing obligations acquired by the Borrower in the ordinary course of
its business less (i) reserves for credit losses applicable thereto, and (ii)
unearned income;
(b) Cash on hand and in banks; and
(c) Investments other than "Restricted Investments" (as such
term is defined in the Senior Note Agreements as in effect on the date hereof).
"QUARTERLY DATES" - the last day of each December, March, June and
September, the first of which shall be the first such day after the date of this
Agreement, provided that, if any such date is not a Business Day or a London
Business Day, the relevant Quarterly Date shall be the next succeeding Business
Day (for Prime Rate Loans or payments of the Facility Fee) or London Business
Day (for LIBOR Loans) (or, in the case of LIBOR Loans, if the next succeeding
London Business Day falls in the next succeeding calendar month, then the next
preceding London Business Day).
"QUARTERLY FISCAL DATES" - the last day of the Borrower's fiscal
quarters.
"RATINGS" - shall mean the ratings from time to time established by the
Rating Agencies for senior, unsecured, non-credit enhanced long-term debt of the
Borrower.
"RATINGS AGENCIES" - Moody's and S&P.
"REGULATION D" - Regulation D of the Board of Governors of the Federal
Reserve System, as the same may be amended or supplemented from time to time.
"REGULATORY CHANGE" - as to any Bank, any change after the date of this
Agreement in United States federal, state or foreign laws or regulations
(including Regulation D) or the adoption or making after such date of any
interpretations, directives or requests applying to a class of banks including
such Bank of or under any United States federal, state, or foreign laws or
regulations (whether or not having the force of law) by any court or
governmental or monetary authority charged with the interpretation or
administration thereof.
"RENTALS" - shall mean and include all fixed rentals (including as such
all payments which the lessee is obligated to make to the lessor on termination
of the lease or surrender of the
15
property) payable by the Borrower, as lessee or sublessee under a lease of real
or personal property, but shall be exclusive of any amounts required to be paid
by the Borrower (whether or not designated as rents or additional rents) on
account of maintenance, repairs, insurance, taxes and similar charges. Fixed
rents under any so-called "percentage leases" shall be computed solely on the
basis of the minimum rents, if any, required to be paid by the lessee regardless
of sales volume or gross revenues.
"REPLACEMENT NOTICE" - as defined in Section 2.25 hereof.
"RESTRICTED GUARANTEES" - at any time means all "guarantees" (as
defined in Section 7.3 hereof) by the Borrower of obligations of others that
constitute sum certain obligations at the time such Guarantees are incurred.
"RETAINED EARNINGS" - the consolidated retained earnings account
(whether allocated or unallocated) of the Borrower and its Subsidiaries
determined as of any date in accordance with GAAP consistent with those applied
in the preparation of the Borrower's consolidated statement of financial
condition for the fiscal year ended December 31, 2000.
"S&P" - Standard & Poor's Ratings Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., and any successor thereto.
"SECURITIES ACT" - the Securities Act of 1933, as amended.
"SECURITY" - the meaning ascribed thereto in Section 2(1) of the
Securities Act; provided, however, that Asset Securitization Recourse
Liabilities shall not constitute "Securities" except (i) to the extent that such
obligations arise from the Borrower's obligation to repurchase receivables or
other assets as a result of a default in payment by the obligor thereunder or
any other default in performance by such obligor under any agreement related to
such receivables or (ii) if the Borrower shall maintain a reserve account
containing Cash or Securities in respect of any such obligations or shall retain
or purchase a subordinated interest therein to the extent of the amount of such
reserve account or subordinated interest.
"SELECTED BANKS" - the Banks which are signatories to this Agreement
and the one hundred largest commercial banks which either are United States
national banking associations or are chartered under the laws of a state of the
United States and which have ratings by Thomson BankWatch, Inc. no lower than
B/C.
"SENIOR DEBT" - all Indebtedness of the Borrower for borrowed money
that is not expressed to be subordinate or junior to any other Indebtedness,
including, without limitation, under this Agreement or the Senior Note
Agreements.
"SENIOR NOTES" - the Senior Notes issued by the Borrower under the
terms and conditions of the Senior Note Agreements.
"SENIOR NOTE AGREEMENTS" - collectively, (i) Senior Note Agreements
dated December 15, 1995, as amended December 6, 1996, in respect of the
Borrower's 6.60% Series D Senior Notes due December 31, 2002, and 6.59% Series E
Senior Notes due December 31, 2002;
16
(ii) Master Shelf Agreement, dated as of June 30, 1997, as amended by letter
agreement dated December 28, 1999, in respect of (A) the Borrower's 6.94% Senior
Notes due July 14, 2003, and (B) the Borrower's 6.22% Senior Notes due February
3, 2004; (iii) Note Purchase Agreement, dated as of December 28, 1999, in
respect of the Borrower's 7.68% Senior Notes due December 28, 2005; and (iv)
Note Purchase and Uncommitted Master Shelf Agreement, dated as of December 28,
2001, in respect of (A) the Borrower's 6.99% Senior Notes due December 18, 2006,
and (B) up to $30,000,000 of Shelf Notes authorized to be issued thereunder.
"SPC" - as defined in subsection 10.14(i) hereof.
"SPV" - the meaning assigned to such term in the definition of "Asset
Securitization" in this Article 1, and, NCB I, Inc. and any other Subsidiary of
the Borrower having powers limited to the holding of regular or residual
interests arising out of Asset Securitizations.
"SUBSIDIARY" - with respect to any Person, any corporation, partnership
or joint venture whether now existing or hereafter organized or acquired: (i) in
the case of a corporation, of which a majority of the securities having ordinary
voting power for the election of directors (other than securities having such
power only by reason of the happening of a contingency) are at the time owned by
such Person and/or one or more Subsidiaries of such Person or (ii) in the case
of partnership or joint venture in which such Person is a general partner or
joint venturer or of which a majority of the partnership or other ownership
interests are at the time owned by such Person and/or one or more of its
Subsidiaries.
"SWAP CONTRACT" - (a) any and all rate swap transactions, basis swaps,
credit derivative transactions, forward rate transactions, commodity swaps,
commodity options, forward commodity contracts, equity or equity index swaps or
options, bond or bond price or bond index swaps or options or forward bond or
forward bond price or forward bond index transactions, interest rate options,
forward foreign exchange transactions, cap transactions, floor transactions,
collar transactions, currency swap transactions, cross-currency rate swap
transactions, currency options, spot contracts, or any other similar
transactions or any combination of any of the foregoing (including any options
to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all transactions
of any kind, and the related confirmations, which are subject to the terms and
conditions of, or governed by, any form of master agreement published by the
International Swaps and Derivatives Association, Inc., any International Foreign
Exchange Master Agreement, or any other master agreement (any such master
agreement, together with any related schedules, a "MASTER AGREEMENT"), including
any such obligations or liabilities under any Master Agreement.
"SWING LINE LOAN COMMITMENT" - $20,000,000 as the same may be reduced
pursuant to Section 2.2 hereof.
"SWING LINE LOAN(S)" - Loans made by Fleet, in its capacity as Swing
Line Lender, pursuant to subsection 2.1(c) hereof.
"SWING LINE LENDER" - Fleet in its individual capacity as lender of
Swing Line Loans under this Agreement.
17
"SYNTHETIC LEASE OBLIGATION" - the monetary obligation of a Person
under (a) a so-called synthetic, off-balance sheet or tax retention lease, or
(b) an agreement for the use or possession of property creating obligations that
do not appear on the balance sheet of such Person but which, upon the insolvency
or bankruptcy of such Person, would be characterized as the indebtedness of such
Person (without regard to accounting treatment).
"TOTAL COMMITMENT" - as to each Bank, the sum of its A Commitment and
its B Commitment.
(b) Any accounting terms used in this Agreement which are not
specifically defined shall have the meanings customarily given to them in
accordance with GAAP, except that references in Article 5 to GAAP shall be
deemed to refer to such principles as in effect on the date of the financial
statements delivered pursuant thereto.
(c) This Agreement shall become effective, and the Original Loan
Agreement shall be amended and restated pursuant hereto, on the Effective Date,
provided that all of the conditions precedent set forth in Section 4.1 hereof
shall have been satisfied on or before such date.
ARTICLE 2 COMMITMENTS AND LOANS.
SECTION 2.1 LOANS.
(a) A LOANS. Each Bank hereby severally agrees to make loans
to the Borrower during the A Credit Period to and including the A Commitment
Termination Date in an aggregate principal amount at any one time outstanding up
to, but not exceeding, the A Commitment of such Bank as then in effect
(individually an "A LOAN" and, collectively, the "A LOANS"). Subject to the
terms of this Agreement, during the A Credit Period, the Borrower may borrow,
prepay (as provided in Section 2.9 hereof) and reborrow the amount of the A
Commitments by means of Prime Rate Loans or LIBOR Loans and convert A Loans of
one type into A Loans of another type (as provided in Section 2.8 hereof).
(b) B LOANS.
(i) Each Bank hereby severally agrees to make loans
to the Borrower during the B Credit Period to and including the B Commitment
Termination Date in an aggregate principal amount at any one time outstanding up
to, but not exceeding, the B Commitment of such Bank as then in effect
(individually a "B LOAN" and, collectively, the "B LOANS"; and together with the
A Loans, collectively referred to as the "LOANS" and individually a "LOAN").
Subject to the terms of this Agreement, during the B Credit Period the Borrower
may borrow, prepay (as provided in Section 2.9 hereof) and reborrow the amount
of the B Commitments by means of Prime Rate Loans or LIBOR Loans and convert B
Loans of one type into B Loans of another type (as provided in Section 2.8
hereof).
(ii) (A) Provided that no Default or Event of Default
shall exist, the Borrower may request that the B Commitment Termination Date be
extended for additional periods of 364 days each by giving written notice
thereof (each an "EXTENSION REQUEST") to the Agent at any time during the period
which is not more than 60 days nor less than 45 days prior to any
18
then current B Commitment Termination Date and, upon receipt of each such
notice, the Agent shall promptly notify each Bank thereof. The then current B
Commitment Termination Date shall not be extended unless and until each Bank, in
its sole and absolute discretion, shall have consented, in writing, to such
request, in which event such then existing B Commitment Termination Date shall
be extended to the date occurring 364 days from the date of the last such
consent, PROVIDED, however, that if such date is not a Business Day, such
extended Maturity Date shall be the immediately preceding Business Day. In the
event that any Bank shall not have granted its consent to an Extension Request,
the then current B Commitment Termination Date shall remain in effect. Each Bank
shall use commercially reasonable efforts to respond to each Extension Request
by no later than 15 days following the receipt by such Bank from the Agent of
notice of such Extension Request, PROVIDED that each Bank which shall have
failed so to respond by such time shall be deemed not to have consented thereto.
(B) Notwithstanding the provisions of paragraph (A)
of this Section, no extension of the B Commitment Termination Date shall be
effective with respect to any Bank unless, on and as of the B Commitment
Termination Date then in effect, (i) the Borrower shall have obtained and
furnished to the Agent evidence of all regulatory approvals required to permit
borrowings by the Borrower and the performance by the Borrower of its
obligations hereunder at all times prior to the extended B Commitment
Termination Date, and (ii) the conditions set forth in Section 4.2 shall be
satisfied (with all references in such Section to a borrowing being deemed to be
references to such extension) and the Agent shall have received a certificate to
that effect, dated the B Commitment Termination Date then in effect, and
executed by an executive officer of the Borrower.
(c) SWING LINE LOANS.
(i) SWING LINE LOANS. Subject to the terms and conditions
hereof and relying on the representations and warranties herein set forth, upon
the Borrower's request, and subject to the terms and conditions of this
Agreement and so long as the Agent does not have notice that there exists an
Event of Default or Default, the Agent may, in its sole discretion, on and after
the Effective Date to, but not including, the B Commitment Termination Date,
provide to the Borrower a Swing Line Loan Commitment under the Agent's B
Commitment, of up to Twenty Million ($20,000,000.00) Dollars; provided, that the
Swing Line Lender shall not in any event be permitted to make any Swing Line
Loan if, after giving effect thereto (a) the aggregate principal amount of B
Loans made by the Swing Line Lender and the Swing Line Loans outstanding at any
time exceed the B Commitment of the Swing Line Lender as then in effect, or (b)
the aggregate outstanding principal balance of Swing Line Loans would exceed the
Swing Line Commitment. The Swing Line Lender shall not at any time be obligated
to make any Swing Line Loans. Within such limits of time and amount and subject
to the other provisions of this Agreement, the Borrower may borrow, repay in
whole or in part, and reborrow under the Swing Line Loan Commitment.
Indebtedness of the Borrower under the Swing Line Loan Commitment shall be
evidenced by the Swing Line Note.
(ii) REQUESTS FOR SWING LINE LOANS. Each request for a
Swing Line Loan shall be made in accordance with the provisions of subsection
2.3(b) hereof. On the terms and subject to the conditions of this Agreement,
each Swing Line Loan shall be disbursed on the
19
Business Day on which the request therefor was timely made, in same day funds by
funding the Borrower's demand deposit account maintained with the Swing Line
Lender.
(iii) INTEREST. Each Swing Line Loan shall bear interest
at a fluctuating rate per annum (computed on the basis of a year of 360 days and
the actual days elapsed) equal to either (x) the Alternate Base Rate, or (y) an
alternate rate (the "Alternate Swing Loan Interest Rate") to be agreed upon
between the Borrower and the Swing Line Lender, each such interest rate to
change automatically from time to time effective as of the Effective Date of
each change in the Alternate Base Rate or such Alternate Swing Loan Interest
Rate. The Borrower may select the Alternate Swing Loan Interest Rate upon
telephonic notice to the Swing Line Lender, upon which telephonic notice the
Swing Line Lender may rely. Interest on the Swing Line Loans shall be due and
payable to the Swing Line Lender for its own account, quarterly in arrears on
the Quarterly Dates, and upon demand therefor, if made earlier, provided that
notwithstanding any provision of this Agreement, each Swing Line Loan shall bear
interest for a minimum of one (1) day.
(iv) PRINCIPAL PAYMENTS. The principal and interest
outstanding under the Swing Line Loan Commitment shall be due and payable (a) on
demand made at any time upon one Business Days' prior notice to the Borrower
furnished at or before 2:00 p.m.,
New York time, and (b) in any event on the B
Commitment Termination Date, provided that if no Event of Default or Default
shall have occurred and be continuing at the time of such demand, immediately
upon such demand, the Borrower shall be deemed to have submitted a request for a
B Loan in an amount necessary to repay the amount demanded, and the provisions
of this Agreement concerning the minimum principal amounts and integral
multiples thereof required for borrowings of B Loans shall not apply to B Loans
made pursuant to this subsection 2.1(c).
(v) REPAYMENT. The Borrower may, from time to time on any
Business Day, make a voluntary repayment in whole or in part, of the outstanding
principal amount of any Swing Line Loan, without incurring any premium or
penalty, provided that (a) each such voluntary repayment shall require prior
written notice given to the Swing Line Lender no later than 10:00 a.m.,
New York
time, on the date on which the Borrower intends to make a voluntary repayment,
(b) each such voluntary repayment shall be in a minimum amount of One Million
($1,000,000.00) Dollars or an integral multiple thereof (or, if less, the
aggregate outstanding principal amount of all Swing Line Loans then outstanding)
and (c) each such voluntary repayment is accompanied by all accrued and unpaid
interest on all outstanding Swing Line Loans.
(vi) B LOANS. The Swing Line Lender may at any time and
from time to time, notwithstanding any Event of Default or Default hereunder,
request each Bank to make a B Loan in the amount of such Bank's pro rata share
(according to its B Commitment) of the Swing Line Loans then outstanding
(together with interest thereon) and each Bank shall thereupon, by 2:00 p.m.
(
New York time) on the Business Day of such request, advance such sum directly
to the Swing Line Lender and the provisions of this Agreement concerning the
minimum principal amounts in integral multiples thereof required for borrowings
of B Loans shall not apply to B Loans made pursuant to this subsection 2.1(c).
(vii) PURCHASE OF PARTICIPATIONS. The Swing Line Lender
irrevocably agrees to grant and hereby grants to each other Bank, and to induce
the Swing Line Lender to extend
20
the Swing Line Loans to the Borrower, each such other Bank irrevocably agrees,
immediately upon the making of a Swing Line Loan and without further action of
the Swing Line Lender required, to accept and purchase and hereby accepts and
purchases from the Swing Line Lender, on the terms and conditions herein stated,
for such Bank's own account and risk, an undivided interest equal to such Bank's
ratable share (according to its B Commitment) in the Swing Line Lender's
obligations and rights under each Swing Line Loan. Each Bank irrevocably and
unconditionally agrees to pay to the Swing Line Lender, immediately upon demand,
without any further action required of the Swing Line Lender, at the principal
office of the Swing Line Lender, an amount equal to such Bank's ratable share of
each Swing Line Loan, together with interest on such amount, as herein required.
The obligation of each Bank to so reimburse the Swing Line Lender shall be
absolute and unconditional and shall not be affected by the occurrence of an
Event of Default or Default or any other occurrence or event. Any such
reimbursement shall not relieve or otherwise impair the obligation of the
Borrower to reimburse the Swing Line Lender for the amount of any advance made
by the Swing Line Lender under the Swing Line Loan Commitment, together with the
applicable interest thereon. The Borrower hereby specifically acknowledges and
agrees that in the event the Borrower fails to perform in accordance with the
terms of this Agreement as it relates to such Swing Line Loan Commitment, each
Bank shall have a claim against the Borrower, to the extent of such Bank's
funding of its ratable share of any Swing Line Loans.
(viii) BANKS' REIMBURSEMENT OF SWING LINE LENDER. If any
amount required to be paid by any Bank to the Swing Line Lender pursuant to
clause (vii) above in respect to any portion of any advance made by the Swing
Line Lender under the Swing Line Loan Commitment is paid to the Swing Line
Lender within three (3) Business Days after the date such payment is due, such
Bank shall pay to the Swing Line Lender on demand an amount equal to the product
of such amount, times the daily average Federal Funds Rate during the period
from and including the date such payment is required to the date on which such
payment is immediately available to the Swing Line Lender times a fraction the
numerator of which is the number of days that elapse during such period and the
denominator of which is 360. If any such amount required to be paid by any Bank
pursuant to clause (vii) above is not in fact made available to the Swing Line
Lender by such Bank within three (3) Business Days after the date such payment
is due, the Swing Line Lender shall be entitled to recover from such Bank, on
demand, such amount with interest thereon calculated from such due date at the
rate per annum then applicable to Prime Rate Loans hereunder. A certificate of
the Swing Line Lender submitted to any Bank with respect to any amounts owing
under this clause (viii) shall be conclusive in the absence of manifest error.
Until such time as the Banks fund their ratable shares of the Swing Line Loans,
the Swing Line Lender shall keep for its own account all interest accrued on
advances made in connection therewith.
(ix) REDISTRIBUTION TO BANKS. Whenever, at any time after
the Swing Line Lender has received from any Bank its ratable share of any Swing
Line Loan in accordance with clauses (vii) and (viii), the Swing Line Lender
receives any payment under a Swing Line Loan (whether directly from the Borrower
or otherwise) or any payment of interest on account thereof, the Swing Line
Lender will distribute to such Bank its ratable share thereof; PROVIDED,
HOWEVER, that in the event that any such payment received by the Swing Line
Lender shall be required to be returned by the Swing Line Lender, such Bank
shall return to the Swing Line Lender the portion thereof previously distributed
by the Swing Line Lender to it in the time set forth.
21
(x) UNCONDITIONAL OBLIGATIONS LIMITATION ON LIABILITY. The
Borrower's obligations and each Bank's obligations under this subsection 2.1(c)
shall be absolute and unconditional under any and all circumstances and
irrespective of any set-off, counterclaim or defense to payment which the
Borrower or any Bank may have or have had against the Swing Line Lender. The
Borrower and each Bank also agree that the Swing Line Lender shall not be
responsible for, and the Borrower's obligations and Banks' obligations hereunder
shall not be affected by, among other things, the form, validity, sufficiency,
accuracy, genuineness or legal effect of documents or of any endorsements
thereon, if believed to be accurate by the Swing Line Lender, even though such
documents shall in fact prove to be invalid, fraudulent or forged, or any
dispute between or among the Borrower and any other party. The Swing Line Lender
shall not be liable for any error, omission, interruption, or delay in
transmission, dispatch, or delivery of any message or advice, however
transmitted, in connection with any Swing Line Loan, except for errors or
omissions caused by the Swing Line Lender's own gross negligence or willful
misconduct (as found in a final, non-appealable judgment by a court of competent
jurisdiction). The Borrower and each Bank agrees that any action taken or
omitted by the Swing Line Lender under or in connection with any Swing Line
Loan, if done in the absence of gross negligence or willful misconduct (as found
in a final, non-appealable judgment by a court of competent jurisdiction) shall
be binding on the Borrower and each Bank and shall not result in any liability
of the Swing Line Lender to the Borrower or any Bank.
SECTION 2.2 REDUCTIONS IN TOTAL COMMITMENTS.
The Borrower shall be entitled to reduce the Total Commitments provided
that the Borrower shall give notice of such reduction to the Banks as provided
in Section 2.3 hereof and that any partial reduction of the Total Commitments
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. Any reduction of the B Commitments made pursuant to this Section
2.2, Section 2.3 or Article 8 hereof which reduces the B Commitments below the
then current amount of the Swing Line Loan Commitment shall result in an
automatic corresponding reduction of the Swing Line Loan Commitment to the
amount of the B Commitment, as so reduced, without any further action on the
part of the Swing Line Lender.
SECTION 2.3 NOTICES RELATING TO LOANS AND SWING LINE LOANS.
(a) The Borrower shall give the Agent notice of each
borrowing, reborrowing, conversion and prepayment of each Loan and of the
duration of each Interest Period applicable to each LIBOR Rate Loan and each
termination or reduction of the Total Commitment (in each case, a "BORROWING
NOTICE"), as follows:
(i) In the case of the borrowing or reborrowing or
repayment of a Prime Rate Loan (other than a Swing Line Loan which is governed
by subsection (b) hereof), the Borrower shall give notice (by telex, telegram or
telecopier, or by telephone confirmed in writing promptly thereafter) to the
Agent no later than 1:30 p.m.,
New York time, on the date of such borrowing,
reborrowing or repayment.
(ii) In the case of the borrowing or reborrowing or
repayment of a LIBOR Loan, the Borrower shall give notice (by telex, telegram or
telecopier or by telephone
22
confirmed in writing promptly thereafter) to the Agent no later than 11:00 a.m.,
New York time, three (3) London Business Days prior to such borrowing,
reborrowing or repayment of the proposed Loan hereunder.
(iii) In the case of each notice of conversion of Loans of
one type into Loans of another type, prepayment and in the case of each
reduction of the Total Commitment, the Borrower shall give notice (by telex,
telegram or telecopier or by telephone confirmed in writing promptly thereafter)
to the Agent no later than 11:00 a.m., New York time, three (3) Business Days
prior to the date of the proposed conversion, prepayment or reduction of Total
Commitments.
Without in any way limiting the Borrower's obligation to confirm in
writing any telephonic notice, the Agent may act without liability upon the
basis of a telephonic notice believed by the Agent in good faith to be from the
Treasurer or Assistant Treasurer of the Borrower or any employee of the Borrower
designated in writing to the Agent by the Treasurer of the Borrower prior to the
receipt of written confirmation. In each such case, the Borrower hereby waives
the right to dispute the Agent's record of the terms of such telephonic notice.
Each such notice of borrowing, reborrowing, conversion or prepayment shall
specify the amount (subject to Section 2.1 hereof) and type of the Loans
(including whether the Loan to be borrowed is an A Loan or a B Loan) to be
borrowed, converted or prepaid (and, in the case of a conversion, the type of
Loans to result from such conversion), the maturity date if less than 270 days,
the duration of each Interest Period applicable to each LIBOR Loan, the date of
borrowing, reborrowing, conversion or prepayment (which shall be a Business Day
in the case of each borrowing, reborrowing, conversion, prepayment of Prime Rate
Loans and a London Business Day in the case of each borrowing, conversion or
prepayment of LIBOR Loans). Each such notice of the duration of an Interest
Period shall specify the Loans to which such Interest Period is to relate. Each
such notice shall also direct the Agent to disburse the proceeds of such Loan by
wire transfer or otherwise, but in any event, in immediately available funds, by
depositing such proceeds in an account of the Borrower, designated by the
Borrower, and maintained with the Agent. Any such Loans so made shall be
conclusively presumed to have been made to or for the benefit of the Borrower
when deposited to any account of the Borrower with the Agent even though
Persons, other than those authorized to borrow on behalf of the Borrower, may
have authority to draw against such account. The Agent shall notify the Banks of
the content of each such notice promptly after its receipt thereof.
(b) In the case of the borrowing or reborrowing of a Swing
Line Loan, the Borrower shall give notice (by telex, telegram, or telecopier or
by telephone confirmed in writing promptly thereafter) to the Swing Line Lender
no later than 3:30 p.m., New York time, on the date of such borrowing.
SECTION 2.4 FEES.
(a) The Borrower shall pay to the Agent for the account of
each Bank a facility fee (the "FACILITY FEE") on the amount of each Bank's A
Commitment and B Commitment, as the case may be, for the period from the date
hereof (or, as applicable, from the effective date specified in the Assignment
and Acceptance pursuant to which it became a Bank hereunder) to and including
the earlier of the date such Bank's A Commitment or B Commitment, as applicable,
is terminated or the A Commitment Termination Date, at the rate per annum equal
to the Facility Fee
23
Percentage from time to time in effect on the A Commitments and the B
Commitments, as applicable. The accrued Facility Fee shall be payable on the
Quarterly Dates, and on the earlier of the date (i) the A Commitments and/or the
B Commitments, as applicable, are terminated, or (ii) the A Commitment
Termination Date.
(b) The Borrower agrees to pay to the Agent for the account
of each Bank, a utilization fee as follows: (i) for any day on which the
outstanding principal amount of all Loans shall be equal to or greater than 33%
of the Total Commitment but less than 66% of the Total Commitment, the Borrower
shall pay to the Agent for the account of each Bank a utilization fee equal to
..125% per annum on the aggregate amount of each Bank's outstanding Loans on such
day, and (ii) for any day on which the outstanding principal amount of all Loans
shall be equal to or greater than 66% of the Total Commitment, the Borrower
shall pay to the Agent for the account of each Bank a utilization fee equal to
0.25% per annum on the aggregate amount of each Bank's outstanding Loans on such
day. Accrued utilization fees, if any, shall be payable in arrears on the
Quarterly Dates, on any date prior to the A Commitment Termination Date on which
a Bank's Commitment terminates, and on the A Commitment Termination Date;
PROVIDED, that any utilization fees accruing after the A Commitment Termination
Date shall be payable on demand.
SECTION 2.5 LENDING OFFICES.
The Loans of each type made by each Bank shall be made and maintained
at such Bank's Applicable Lending Office for Loans of such type. The Swing Line
Loans made by the Swing Line Lender shall be made and maintained at the Swing
Line Lender's Applicable Lending Office.
SECTION 2.6 SEVERAL OBLIGATIONS.
The failure of any Bank to make any Loan to be made by it on the date
specified therefor shall not relieve the other Banks of their respective
obligations to make their Loans on such date, but no Bank shall be responsible
for the failure of the other Banks to make Loans to be made by such other Banks.
SECTION 2.7 BORROWINGS.
(a) The Borrower shall give the Agent notice of each borrowing
hereunder as provided in Section 2.3 hereof. Not later than 3:00 p.m. on the
date specified for each borrowing hereunder (other than a borrowing in respect
of a Swing Line Loan which is governed by subsection 2.1(c) hereof), each Bank
shall transfer to the Agent, by wire transfer or otherwise, but in any event in
immediately available funds, the amount of the Loan to be made by it on such
date, and the Agent, upon its receipt thereof, shall disburse such sum in
accordance with the directions of the Borrower contained in the Borrowing Notice
relating to such Loan.
(b) Notwithstanding anything contained in any Borrowing Notice
to the contrary, the Loans (other than Swing Line Loans) shall be disbursed in
the following order of priority: (i) first, the A Loans, then (ii) the B Loans.
24
SECTION 2.8 CONVERSIONS OF LOANS.
The Borrower shall have the right to convert Loans of one type into
Loans of another type from time to time, provided that: (i) the Borrower shall
give the Agent notice of each such conversion as provided in Section 2.3 hereof;
(ii) LIBOR Loans may be converted only on the last day of an Interest Period for
such Loans; and (iii) except as required by Sections 2.23, or 2.24 hereof, no
Prime Rate Loan may be converted into a LIBOR Loan if on the proposed date of
conversion a Default or an Event of Default exists. Notwithstanding the
foregoing, Swing Line Loans may not be converted into LIBOR Loans. The Agent
shall use its best efforts to notify the Borrower of the effectiveness of such
conversion, and the new interest rate to which the converted Loans are subject,
as soon as practicable after the conversion; provided, however, that any failure
to give such notice shall not affect the Borrower's obligations, or the Agent's
or the Banks' rights and remedies, hereunder in any way whatsoever.
SECTION 2.9 PREPAYMENTS.
(a) The Borrower shall have the right to prepay the Loans from
time to time in whole or in part, provided that the Borrower shall give the
Agent notice of each such prepayment as provided in Section 2.3 hereof.
(b) All prepayments of the Loans shall be made together with
payment of all interest accrued on the amount prepaid, without premium or
penalty, but subject to Section 2.24 hereof.
(c) Notwithstanding the foregoing, the prepayment of Swing
Line Loans shall be governed by subsection 2.1(c) hereof.
SECTION 2.10 USE OF PROCEEDS OF LOANS.
The proceeds of the Loans made hereunder may be used by the Borrower
solely: (A) for the repayment in full of all indebtedness outstanding under the
Original Loan Agreement, (b) general corporate purposes, and (c) for working
capital purposes, including to finance the Borrower's loan originations and to
support the issuance of commercial paper.
SECTION 2.11 PAYMENT OF LOANS.
(a) With respect to each Prime Rate Loan or LIBOR Loan made
hereunder in respect of the A Commitment, the Borrower shall pay to the Agent
for the account of the Banks on the earliest of the A Commitment Termination
Date or 270 days after the making of such A Loan or such shorter period as the
Borrower shall specify in the Borrowing Notice in connection with such A Loan,
the unpaid principal of such Prime Rate Loan or LIBOR Loan outstanding on such
date.
(b) With respect to each Prime Rate Loan or LIBOR Loan made
hereunder in respect of the B Commitment, the Borrower shall pay to the Agent
for the account of the Banks on the earliest of the B Commitment Termination
Date or 270 days after the making of such B Loan or such shorter period as the
Borrower shall specify in the Borrowing Notice in connection with such B Loan,
the unpaid principal of such Prime Rate Loan or LIBOR Loan outstanding on such
date.
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(c) With respect to each Swing Line Loan made hereunder, the
Borrower shall pay to the Swing Line Lender the unpaid principal of any Swing
Line Loan as provided in subsection 2.1(c) hereof.
SECTION 2.12 INTEREST.
The Borrower shall pay to the Agent for the account of each Bank
interest on the unpaid principal amount of each Loan (other than Swing Line
Loans) made by such Bank for the period commencing on the date of such Loan
until such Loan shall be paid in full, at the following rates per annum:
(a) During such periods such Loan is a Prime Rate Loan, the
Alternate Base Rate; provided, however, that the interest rate applicable to any
Prime Rate Loan on any day during the period commencing on December 15 of any
year and ending on January 2 of the following year shall be equal to the sum of
(x) the Federal Funds Rate (or, if such day is not a Business Day, on the next
preceding Business Day) plus (y) 1.5%; and
(b) During such periods such Loan is a LIBOR Loan, for each
Interest Period relating thereto, the LIBOR Rate for such Loan for such Interest
Period plus the Applicable Margin.
(c) Notwithstanding the foregoing, the Borrower shall pay
interest on any Loan or any installment thereof, and on any other amount payable
by the Borrower hereunder (other than interest) 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. Except as hereinafter provided, accrued interest
on each Loan shall be payable (i) in the case of a Prime Rate Loan, quarterly on
the Quarterly Dates, (ii) in the case of a LIBOR Loan, on the last day of each
Interest Period for such Loan (and, if such Interest Period exceeds three
months' duration, quarterly, commencing on the first quarterly anniversary of
the first day of such Interest Period), and (iii) in the case of any Loan, upon
the payment or prepayment thereof (other than a partial prepayment of a Prime
Rate Loan) or the conversion thereof into a Loan of another type (but only on
the principal so paid, prepaid or converted). Interest which is payable at the
Post-Default Rate shall be payable from time to time on demand of the Agent or
any Bank. Promptly after the establishment of any interest rate provided for
herein or any change therein, the Agent will notify the Banks and the Borrower
thereof.
SECTION 2.13 NOTES.
(a) The A Loans made by each Bank shall be evidenced by a
single promissory note of the Borrower (a "A NOTE" and, collectively, the "A
NOTES") in substantially the form of Exhibit A-1 hereto, dated the Effective
Date, payable to the order of such Bank in a principal amount equal to such
Bank's A Commitment as originally in effect and otherwise duly completed. All A
Loans made by each Bank hereunder and all payments and prepayments made on
account of the principal thereof, and all conversions of such A Loans shall be
recorded by such Bank on the schedule attached to the relevant A Note (provided
that any failure by such Bank to make any such
26
endorsement shall not affect the obligations of the Borrower hereunder or under
such A Note in respect of such A Loans).
(b) The B Loans made by each Bank shall be evidenced by a
single promissory note of the Borrower (a "B NOTE" and, collectively, the "B
NOTES") in substantially the form of Exhibit A-2 hereto, dated the Effective
Date, payable to the order of such Bank in a principal amount equal to such
Bank's B Commitment as originally in effect and otherwise duly completed. All B
Loans made by each Bank hereunder and all payments and prepayments made on
account of the principal thereof, and all conversions of such B Loans shall be
recorded by such Bank on the schedule attached to the relevant B Note (provided
that any failure by such Bank to make any such endorsement shall not affect the
obligations of the Borrower hereunder or under such B Note in respect of such B
Loans).
(c) The Swing Line Loans made by the Swing Line Lender shall
be evidenced by a single promissory note of the Borrower (the "SWING LINE NOTE")
substantially in the form of Exhibit A-3 hereto, dated the Effective Date,
payable to the order of the Swing Line Lender in a principal amount equal to the
Swing Line Loan Commitment and otherwise duly completed. All Swing Line Loans
made by the Swing Line Lender hereunder and all payments and prepayments on
account of the principal thereof shall be recorded by the Swing Line Lender on
the schedule attached to the Swing Line Note (PROVIDED, that any failure by the
Swing Line Lender to make such endorsement shall not affect the obligations of
the Borrower hereunder or under the Swing Line Note).
SECTION 2.14 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 the Agent not later than 12:00 Noon, New York
City time, on the date on which such payment shall become due (and the Agent or
any Bank for whose account any such payment is to be made may, but shall not be
obligated to, debit the amount of any such payment which is not made by such
time to any ordinary deposit account of the Borrower with the Agent or such
Bank, as the case may be). Additional provisions relating to payments are set
forth in Section 10.3 hereof. Each payment received by the Agent hereunder for
the account of a Bank or the Swing Line Lender shall be paid promptly to such
Bank or Swing Line Lender, in like funds, for the account of such Bank's or
Swing Line Lender's Applicable Lending Office for the Loan or Swing Line Loan in
respect of which such payment is made. Upon its acceptance of an Assignment and
Acceptance and recording of the information contained therein in the Register
pursuant to Section 10.14(d), from and after the effective date of such
Assignment and Acceptance, the Agent shall make all payments hereunder and under
the Notes in respect of the interest assigned thereby to the Bank assignee
thereunder, and the parties to such Assignment and Acceptance shall make all
appropriate adjustments in such payments.
SECTION 2.15 PRO RATA TREATMENT.
Except as otherwise provided herein: (i) each borrowing from the Banks
under Section 2.1 hereof (other than the Swing Line Loan) will be made from the
Banks and each payment of each fee shall be made for the account of the Banks,
PRO RATA according to their respective A
27
Commitment and B Commitment, as the case may be; (ii) each partial reduction of
the aggregate Total Commitment shall be applied to the Total Commitment of each
Bank, PRO RATA according to each Bank's respective Total Commitment, (iii) each
conversion of Loans of a particular type under Section 2.8 hereof (other than
conversions provided for by Section 2.21 or 2.22 hereof) will be made PRO RATA
among the Banks holding Loans of such type according to the respective principal
amounts of such Loans held by such Banks; (iv) each payment and prepayment of
principal of or interest on Loans of a particular type will be made to the Agent
for the account of the Banks holding Loans of such type PRO RATA in accordance
with the respective unpaid principal amounts of such Loans held by such Banks;
and (v) Interest Periods for Loans of a particular type shall be allocated among
the Banks holding Loans of such type PRO RATA according to the respective
principal amounts of such Loans held by such Banks.
SECTION 2.16 COMPUTATIONS.
Interest on all Loans and the Facility 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 2.17 MINIMUM AMOUNTS OF BORROWINGS, CONVERSIONS, PREPAYMENTS
AND INTEREST PERIODS.
(a) Except for borrowings, conversions and prepayments which
exhaust the full remaining amount of the Total Commitments (in the case of
borrowings) or result in the conversion or prepayment of all Loans of a
particular type (in the case of conversions or prepayments) or conversions made
pursuant to Section 2.23 hereof, each borrowing, each conversion of Loans of one
type into Loans of another type and each prepayment of principal of Loans
hereunder shall be in an amount at least equal to Two Million ($2,000,000)
Dollars or a multiple of $1,000,000 (borrowings, conversions and prepayment of
different types of Loans at the same time hereunder to be deemed separate
borrowings, conversions and prepayments for purposes of the foregoing, one for
each type).
(b) Except for borrowings which exhaust the Swing Line Loan
Commitment, each borrowing of principal of the Swing Line Loans hereunder shall
be in an amount at least equal to One Million ($1,000,000) Dollars or a multiple
thereof.
SECTION 2.18 NON-RECEIPT OF FUNDS BY THE AGENT.
Unless the Agent shall have been notified by a Bank or the Borrower
(the "PAYOR") prior to the time upon which such Bank is to make payment to the
Agent of the proceeds of a Loan (including a Refunded Swing Line Loan) to be
made by it hereunder or the Borrower is to make a payment to the Agent for the
account of one or more of the Banks, as the case may be (such payment being
herein called the "REQUIRED PAYMENT"), which notice shall be effective upon
receipt, that the Payor does not intend to make the Required Payment to the
Agent, the Agent may assume that the Required Payment has been made and may, in
reliance upon such assumption (but shall not be required to), make the amount
thereof available to the intended recipient on such date and, if the Payor has
not in fact made the Required Payment to the Agent, the recipient of such
payment shall,
28
on demand, repay to the Agent the amount made available to it together with
interest thereon in respect of each day during the period commencing on the date
such amount was so made available by the Agent until the date the Agent recovers
such amount at a rate per annum equal to the Federal Funds Rate for such day
(when the recipient is a Bank) or equal to the rate of interest applicable to
such Loan (when the recipient is the Borrower).
SECTION 2.19 SHARING OF PAYMENTS, ETC.
The Borrower hereby agrees that, in addition to (and without limitation
of) any right of set-off, banker's lien or counterclaim a Bank may otherwise
have, each Bank shall be entitled, at its option, to offset balances held by it
at any of its offices against any principal of or interest on any of its Loans
hereunder, or any fee payable to it, which is not paid when due (regardless of
whether such balances are then due to the Borrower), in which case it shall
promptly notify the Borrower and the Agent thereof, provided that its failure to
give such notice shall not affect the validity thereof. If a Bank shall effect
payment of any principal of or interest on Loans held by it under this Agreement
through the exercise of any right of set-off, banker's lien, counterclaim or
similar right, it shall promptly purchase from the other Banks participations in
the Loans held by the other Banks in such amounts, and make such other
adjustments from time to time as shall be equitable, to the end that all the
Banks shall share the benefit of such payment pro rata in accordance with the
unpaid principal and interest on the Loans held by each of them. To such end all
the Banks shall make appropriate adjustments among themselves (by the resale of
participations sold or otherwise) if such payment is rescinded or must otherwise
be restored. The Borrower agrees that any Bank so purchasing a participation in
the Loans held by the other Banks may exercise all rights of set-off, banker's
lien, counterclaim or similar rights with respect to such participation as fully
as if such Bank were a direct holder of Loans in the amount of such
participation. Nothing contained herein shall require any Bank to exercise any
such right or shall affect the right of any Bank to exercise and retain the
benefits of exercising, any such right with respect to any other indebtedness or
obligation of the Borrower.
SECTION 2.20 ADDITIONAL COSTS.
(a) (i) The Borrower shall pay directly to each Bank from time
to time such amounts as such Bank may determine to be necessary to compensate it
for any costs incurred by such Bank which such Bank determines are attributable
to its making or maintaining any LIBOR Loans or its Total Commitment hereunder
or any reduction in any amount receivable by such Bank hereunder in respect of
any of such Loans or Total Commitments (such increases in costs and reductions
in amounts receivable being herein called "ADDITIONAL COSTS"), resulting from
any Regulatory Change which: (i) changes the basis of taxation of any amounts
payable to such Bank under this Agreement or its Note in respect of any of such
Loans (other than taxes imposed on the overall net income of such Bank or its
Applicable Lending Office for any of such Loans by the jurisdiction in which
such Bank has its principal office or such Applicable Lending Office); or
(ii) imposes or modifies any reserve, special deposit or similar requirements
relating to or any deposits with or other liabilities of, such Bank (including
any deposits referred to in the definition of "LIBOR Rate" in Article 1 hereof);
or (iii) imposes any other conditions affecting this Agreement in respect of the
LIBOR Loans. Each Bank will notify the Borrower and the Agent of any event
occurring after the date of this Agreement which will entitle such Bank to
compensation pursuant to
29
this Section 2.20 as promptly as practicable after it obtains knowledge thereof
and determines to request such compensation. Each Bank will furnish the Borrower
and the Agent with a certificate setting forth the basis and amount of each
request for such Bank for compensation from the Borrower under this Section
2.20. The Borrower may, by notice to such Bank (with a copy to the Agent),
require that such Bank's Loans of the type with respect to which such
compensation is requested be converted into Prime Rate Loans or LIBOR Loans, as
the case may be, in accordance with Sections 2.8 and 2.23 hereof.
(ii) Without limiting the effect of the foregoing
provisions of this Section 2.20, in the event that, by reason of any Regulatory
Change, any Bank either (i) incurs Additional Costs based on or measured by the
excess above a specified level of the amount of a category of deposits or other
liabilities of such Bank which includes deposits by reference to which the
interest rate on LIBOR Loans is determined as provided in this Agreement or a
category of extensions of credit or other assets of such Bank which includes
LIBOR Loans or (ii) becomes subject to restrictions on the amount of such a
category of liabilities or assets which it may hold, then, if such Bank so
elects by notice to the Borrower (with a copy to the Agent), the obligation of
such Bank to make, and to convert Loans of any other type into, Loans of such
type hereunder shall be suspended until the date such Regulatory Change ceases
to be in effect (and all Loans of such type of such Bank then outstanding shall
be converted into Prime Rate Loans or LIBOR Loans, as the case may be, in
accordance with Section 2.8 and 2.23 hereof).
(b) If any existing or future law or regulation or the
interpretation thereof by any court or administrative or governmental authority
charged with the administration thereof, or compliance by any Bank with any
request or directive (whether or not having the force of law) of any such
authority, either imposes, modifies, deems applicable or results in the
application of, any capital maintenance, capital ratio or similar requirement
against loan commitments made by any Bank and the result thereof is to impose
upon such Bank or increase any capital requirement applicable as a result of the
making or maintenance of such Bank's Total Commitment (which imposition of or
increase in capital requirements may be determined by the Bank's reasonable
allocation of the aggregate of such capital impositions or increases) then, upon
demand by such Bank (a copy of which demand shall be delivered to the Agent),
the Borrower shall immediately pay to the Bank from time to time specified by
the Bank, such additional fees as shall be sufficient to compensate the Bank for
such imposition of or increase in capital requirements. Such Bank will furnish
the Borrower and the Agent with a certificate setting forth the basis and amount
of each request by such Bank for compensation from the Borrower under this
Section 2.20. The Borrower may, by notice to such Bank (with a copy to the
Agent), require that such Bank's Loans of the type with respect to which such
compensation is requested be converted into Prime Rate Loans or LIBOR Loans, as
the case may be, in accordance with Section 2.8 and 2.23 hereof.
(c) Determinations by any Bank for purposes of this
Section 2.20 of the effect of any Regulatory Change on its costs of making or
maintaining Loans or on amounts receivable by it in respect of Loans, and of the
additional amounts required to compensate such Bank in respect of any Additional
Costs, shall be conclusive, absent manifest error.
30
SECTION 2.21 LIMITATION ON TYPES OF LOANS.
Anything herein to the contrary notwithstanding, if, on or prior to the
determination of an interest rate for any LIBOR Loans for any Interest Period
therefor:
(a) the Majority Banks determine (which determination shall be
conclusive absent manifest error) that, by reason of any event affecting the
money markets in the United States or the London interbank market, quotations of
interest rates for the relevant deposits are not being provided in the relevant
amounts or for the relevant maturities for purposes of determining the rate of
interest for such Loans under this Agreement, or
(b) the Majority Banks determine (which determination shall be
conclusive absent manifest error) that the rates of interest referred to in the
definition of "LIBOR Rate" in Article 1 hereof upon the basis of which the rate
of interest on any LIBOR Loans for such period is determined do not accurately
reflect the cost to the Banks of making or maintaining such Loans for such
period;
then the Agent shall give the Borrower and each Bank prompt notice thereof (and
shall thereafter give the Borrower and each Bank prompt notice of the cessation,
if any, of such condition), and so long as such condition remains in effect, the
Banks shall be under no obligation to make Loans of such type or to convert
Loans of any other type into Loans of such type and the Borrower shall, on the
last day(s) of the then current Interest Period(s) for the outstanding Loans of
the affected type either prepay such Loans in accordance with Section 2.9 hereof
or convert such Loans into Loans of another type in accordance with Section 2.8
hereof.
SECTION 2.22 ILLEGALITY.
Notwithstanding any other provision in this Agreement, in the event
that it becomes unlawful for any Bank or its Applicable Lending Office to (i)
honor its obligation to make LIBOR Loans hereunder, or (ii) maintain LIBOR Loans
hereunder, then such Bank shall promptly notify the Borrower thereof in writing
(with a copy to the Agent), describing such illegality in reasonable detail (and
shall thereafter promptly notify the Borrower and the Agent of the cessation, if
any, of such illegality), and such Bank's obligation to make LIBOR Loans and to
convert Prime Rate Loans into LIBOR Loans hereunder shall, upon written notice
given by such Bank to the Borrower, be suspended until such time as such Bank
may again make and maintain LIBOR Loans and such Bank's outstanding LIBOR Loans
shall be converted into Prime Rate Loans in accordance with Sections 2.8 and
2.23 hereof.
SECTION 2.23 CERTAIN CONVERSIONS PURSUANT TO SECTION 2.20.
If the Loans of any Bank of a particular type (Loans of such type being
herein called "AFFECTED LOANS" and such type being herein called the "AFFECTED
TYPE") are to be converted pursuant to Section 2.20 hereof, such Bank's Affected
Loans shall be converted into Prime Rate Loans or LIBOR Loans of another type
(the "NEW TYPE LOANS") on the last day(s) of the then current Interest Period(s)
for the Affected Loans (or, in the case of a conversion required by Section
2.20(b) on such earlier date as such Bank may specify to the Borrower with a
copy to the Agent) and,
31
until such Bank gives notice as provided below that the circumstances specified
in Section 2.20 hereof which gave rise to such conversion no longer exist:
(a) to the extent that such Bank's Affected Loans have been so
converted, all payments and prepayments of principal which would otherwise be
applied to such Affected Loans shall be applied instead to its New Type Loans;
(b) all Loans which would otherwise be made by such Bank as
Loans of the Affected Type shall be made instead as New Type Loans and all Loans
of such Bank which would otherwise be converted into Loans of the Affected Type
shall be converted instead into (or shall remain as) New Type Loans; and
(c) if Loans of the Affected Type are subsequently converted
into Loans of another type (other than New Type Loans), such Bank's New Type
Loans shall be automatically converted on the conversion date into Loans of such
other type to the extent necessary so that, after giving effect thereto, all
Loans held by such Bank and the Banks whose Loans are so converted are held pro
rata (as to principal amounts, types and, to the extent applicable, Interest
Periods) in accordance with their respective Total Commitments.
SECTION 2.24 INDEMNIFICATION.
The Borrower shall pay to the Agent for the account of each Bank, upon
the request of such Bank through the Agent, such amount or amounts as shall
compensate such Bank for any loss (including loss of profit), cost or expense
incurred by such Bank (as reasonably determined by such Bank) as a result of:
(a) any payment or prepayment or conversion of a LIBOR Loan
held by such Bank on a date other than the last day of an Interest Period for
such LIBOR Loan; or
(b) any failure by the Borrower to borrow a LIBOR Loan held by
such Bank on the date for such borrowing specified in the relevant Borrowing
Notice under Section 2.3 hereof;
such compensation to include, without limitation, an amount equal to the excess,
if any, of (a) the amount of interest which would have accrued on the amount so
paid, prepaid or converted or not borrowed for the period from the date of such
payment, prepayment or conversion or failure to borrow, convert or prepay to the
last day of the then current Interest Period for such LIBOR Loan (or, in the
case of a failure to borrow, the Interest Period for such LIBOR Loan which would
have commenced on the date of such failure to borrow) at the applicable rate of
interest for such LIBOR Loan provided for herein over (b) the amount of interest
(as reasonably determined by such Bank) such Bank would have bid in the London
interbank market for Dollar deposits of amounts comparable to such principal
amount and maturities comparable to such period.
SECTION 2.25 REPLACEMENT OF BANK.
In the event that any Bank (an "AFFECTED LENDER") (a) demands payment
of costs or additional amounts pursuant to Section 2.20, or (b) asserts,
pursuant to Section 2.22 that it is
32
unlawful for such Affected Lender to make LIBOR Loans, then (subject to such
Affected Lender's right to rescind such demand or assertion within 10 days after
the notice from the Borrower referred to below and so long as no Event of
Default exists) the Borrower may, upon 20 days' prior written notice (the
"REPLACEMENT NOTICE") to such Affected Lender and the Agent, with the reasonable
assistance of the Agent, elect to cause such Affected Lender to assign all of
its rights and obligations under this Agreement (including, without limitation,
all of its Total Commitment, the Loans owing to it and the Note or Notes held by
it) to an Eligible Assignee selected by the Borrower, so long as such Affected
Lender receives payment in full in cash of the outstanding principal amount of
all Loans made by it and all accrued and unpaid interest thereon and all other
amounts due and payable to such Affected Lender as of the effective date of such
assignment and in such case such Affected Lender shall agree to make such
assignment, and such assignee shall agree to accept such assignment and assume
all the obligations of such Affected Lender hereunder, in accordance with
Section 10.14. Until the consummation of an assignment in accordance with the
foregoing provisions of this Section 2.25, the Borrower shall continue to pay to
the Affected Lender any Obligations as they become due and payable.
ARTICLE 3 REPRESENTATIONS AND WARRANTIES.
The Borrower hereby represents and warrants to the Banks and the Agent
that:
SECTION 3.1 ORGANIZATION.
(a) Each of the Borrower and its Subsidiaries is duly
organized and validly existing under the laws of its jurisdiction of
organization and has the power to own its assets and to transact the business in
which it is presently engaged and in which it proposes to be engaged. Schedule
3.1 annexed hereto accurately and completely lists the jurisdiction of
incorporation of the Borrower and its Subsidiaries, and the authorized and
outstanding shares of common stock of the Borrower and its Subsidiaries. All of
the shares which are issued and outstanding have been duly and validly issued
and are fully paid and non-assessable. Except as set forth on Schedule 3.1,
there are not outstanding any warrants, options, contracts or commitments of any
kind entitling any Person to purchase or otherwise acquire any shares of capital
stock of the Borrower or its Subsidiaries nor are there outstanding any
securities which are convertible into or exchangeable for any shares of capital
stock of the Borrower or any of its Subsidiaries. Except as set forth on
Schedule 3.1, neither the Borrower nor any of its Subsidiaries has any
Subsidiary.
(b) There are no jurisdictions other than as set forth on
Schedule 3.1 hereto in which the character of the properties owned or proposed
to be owned by the Borrower or any of its Subsidiaries or in which the
transaction of the business of the Borrower or any of its Subsidiaries as now
conducted or as proposed to be conducted requires or will require the Borrower
or any of its Subsidiaries to qualify to do business and as to which failure so
to qualify could have a material adverse effect on the business, operations,
financial condition or properties of the Borrower and its Subsidiaries, taken as
a whole.
33
SECTION 3.2 POWER, AUTHORITY, CONSENTS.
(i) The Borrower has the power to execute, deliver and
perform the Loan Documents to be executed by it, (ii) 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, and (iii) the
Borrower has taken all necessary action, corporate or otherwise, to authorize
the execution, delivery and performance of the 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 Loan Documents, except as set forth on Schedule 3.2 annexed
hereto, each of which either has been duly and validly obtained on or prior to
the date hereof and is now in full force and effect, or is designated on
Schedule 3.2 as waived by the Majority Banks.
SECTION 3.3 NO VIOLATION OF LAW OR AGREEMENTS.
The execution and delivery by the Borrower of each Loan Document and
performance by it hereunder and thereunder, will not violate any provision of
law and will not, except as set forth on Schedule 3.2 annexed hereto, conflict
with or result in a breach of any order, writ, injunction, ordinance,
resolution, decree, or other similar document or instrument of any court or
governmental authority, bureau or agency, domestic or foreign, or any charter or
by-laws of the 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 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.
SECTION 3.5 PROPERTIES.
All of the properties and assets owned by the Borrower or any of its
Subsidiaries are owned by each of them, respectively, free and clear of any Lien
of any nature whatsoever, except Permitted Liens and as permitted by Schedule
3.5 annexed hereto.
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SECTION 3.6 JUDGMENTS, ACTIONS, PROCEEDINGS.
Except as set forth on Schedule 3.6 annexed hereto, there are no
outstanding judgments, actions or proceedings pending before any court or
governmental authority, bureau or agency, with respect to the Borrower or any of
its Subsidiaries or, to the best of the Borrower's knowledge, threatened against
or affecting the Borrower or any of its Subsidiaries, involving, in the case of
any court proceeding, a claim in excess of $250,000, nor, to the best of the
Borrower's knowledge is there any reasonable basis for the institution of any
such action or proceeding which is probable of assertion, nor are there any such
actions or proceedings in which the Borrower or any of its Subsidiaries is a
plaintiff or complainant.
SECTION 3.7 NO DEFAULTS, COMPLIANCE WITH LAWS.
Except as set forth on Schedule 3.7 annexed hereto, neither the
Borrower nor any of its Subsidiaries is in material default under any agreement,
ordinance, resolution, decree, bond, note, indenture, order or judgment to which
it is a party or by which it is bound, or any other agreement or other
instrument by which any of the properties or assets owned by it or used in the
conduct of its business is affected, and each of the Borrower and its
Subsidiaries has complied and is in compliance in all material respects with all
applicable laws, ordinances and regulations non-compliance with which could have
a material adverse effect on the business, operations, financial condition or
properties of the Borrower or any of its Subsidiaries or on the ability of the
Borrower or any of its Subsidiaries to perform their respective obligations
under the Loan Documents.
SECTION 3.8 BURDENSOME DOCUMENTS.
Except as set forth on Schedule 3.8 annexed hereto, neither the
Borrower nor its Subsidiaries is a party to or bound by, nor are any of its
properties or assets affected by, any agreement, ordinance, resolution, decree,
bond, note, indenture, order or judgment which materially and adversely affects
its business, assets or condition, financial or otherwise.
SECTION 3.9 FINANCIAL STATEMENTS.
Except as set forth in Section 3.9 annexed hereto, each of the
Financial Statements is correct and complete and presents fairly the
consolidated and consolidating financial position of the Borrower and its
Subsidiaries, as the case may be, as at its date, and has been prepared in
accordance with GAAP. As of the Effective Date, (a) neither the Borrower nor any
of its Subsidiaries has any material obligation, liability or commitment, direct
or contingent, which is not reflected in the Financial Statements, and (b) there
has been no material adverse change in the financial position or operations of
the Borrower or any of its Subsidiaries since December 31, 2000. The fiscal year
of the Borrower is the twelve-month period ending on December 31 in each year.
SECTION 3.10 TAX RETURNS.
Except as set forth on Schedule 3.10 annexed hereto, the Borrower and
each of its Subsidiaries has filed all federal, state and local tax returns
required to be filed by it and has not failed to pay any taxes, or interest and
penalties relating thereto, on or before the due dates thereof. Except to the
extent that reserves therefor are reflected in the Financial Statements, (a)
there are no
35
material federal, state or local tax liabilities of the Borrower and its
Subsidiaries due or to become due for any tax year ended on or prior to December
31, 2000, whether incurred in respect of or measured by the income of such
entity, which are not properly reflected in the balance sheet of such entity as
at December 31, 2000, and (b) there are no material claims pending or, to the
knowledge of the Borrower, proposed or threatened against the Borrower or any of
its Subsidiaries for past federal, state or local taxes, except those, if any,
as to which proper reserves are reflected in the Financial Statements.
SECTION 3.11 INTANGIBLE ASSETS.
The Borrower and each of its Subsidiaries possess all necessary
patents, trademarks, trademark rights, trade names, trade name rights and
copyrights to conduct its business as now conducted and as proposed to be
conducted, without any conflict with the patents, trademarks rights, trade
names, trade name rights and copyrights of others.
SECTION 3.12 REGULATION U.
No part of the proceeds received by the Borrower from the Loans or
the Swing Line Loans will be used directly or indirectly for the purpose of
purchasing or carrying, or for payment in full or in part of Indebtedness
which was incurred for the purposes of purchasing or carrying, any margin
stock as such term is defined in Section 221.3 of Regulation U of the Board
of Governors of the Federal Reserve System, 12 C.F.R., Chapter II, Part 221.
SECTION 3.13 NAME CHANGES.
Except as set forth on Schedule 3.13 annexed hereto, neither the
Borrower nor any of its Subsidiaries has within the six-year period immediately
preceding the date of this Agreement changed its name, been the surviving entity
of a merger or consolidation, or acquired all or substantially all of the assets
of any Person.
SECTION 3.14 FULL DISCLOSURE.
None of the Financial Statements, nor any certificate, opinion, or any
other statement made or furnished in writing to the Agent or any Bank by or on
behalf of the Borrower or any of its Subsidiaries in connection with this
Agreement or the transactions contemplated herein, contains any untrue statement
of a material fact, or omits to state a material fact necessary in order to make
the statements contained therein or herein not misleading, as of the date such
statement was made. There is no fact known to the Borrower which has, or would
in the now foreseeable future have, a material adverse effect on the business,
prospects or condition, financial or otherwise, of the Borrower or of any of its
Subsidiaries, which fact has not been set forth herein, in the Financial
Statements, or any certificate, opinion, or other written statement so made or
furnished to the Agent or the Banks.
SECTION 3.15 EMPLOYEE GRIEVANCES.
Except as set forth on Schedule 3.15 annexed hereto, there are no
actions or proceedings pending or, to the best of the knowledge of the Borrower,
threatened against the
36
Borrower or any of its Subsidiaries by or on behalf of, or with, its employees,
other than employee grievances arising in the ordinary course of business which
are not, in the aggregate, material.
SECTION 3.16 CONDITION OF ASSETS.
All of the assets and properties of the Borrower and its Subsidiaries,
which are reasonably necessary for the operation of its business, are in good
working condition, ordinary wear and tear excepted, and are able to serve the
function for which they are currently being used.
SECTION 3.17 ERISA.
(a) Except as set forth on Schedule 3.17 annexed hereto,
neither the Borrower nor any of its Subsidiaries have and has ever had, any Plan
in connection with which there could arise a direct or contingent liability of
the Borrower or any of its Subsidiaries to the Pension Benefit Guaranty
Corporation ("PBGC"), the Department of Labor or the Internal Revenue Service
("IRS"). Neither the Borrower nor any of its Subsidiaries is a participating
employer (i) in any Plan under which more than one employer makes contributions
as described in Sections 4063 and 4064 of ERISA, or (ii) in a multiemployer plan
as defined in Section 4001(a)(3) of ERISA.
(b) All references to the Borrower or its Subsidiaries in this
Section 3.17 or in any other Section of this Agreement relating to ERISA, shall
be deemed to refer to the Borrower and its Subsidiaries and all other entities
which are, together with the Borrower, part of a Controlled Group.
ARTICLE 4 CONDITIONS TO THE CLOSING AND TO THE MAKING OF THE LOANS.
SECTION 4.1 CONDITIONS TO THE CLOSING.
This Agreement, and the amendment and restatement of the Original Loan
Agreement pursuant hereto, shall become effective on the Effective Date,
provided that each of the following conditions precedent shall have been
fulfilled to the satisfaction of each of the Banks on or prior to the Effective
Date:
(a) The Borrower shall have executed and delivered to each
Bank a copy of this Agreement.
(b) (i) The Borrower shall have executed and delivered to
each Bank its A Note and B Note.
(ii) The Borrower shall have executed and delivered to
the Swing Line Lender the Swing Line Note.
(c) Messrs. ▇▇▇▇ and ▇▇▇▇▇▇▇, general counsel to the Borrower,
shall have delivered its opinion, to, and in form and substance satisfactory to,
the Agent and its counsel.
(d) The Agent shall have received a Borrowing Notice in
accordance with Section 2.3 hereof.
37
(e) The Agent shall have received copies of the following:
(i) The Financial Statements;
(ii) All of the consents, approvals and waivers referred
to on Schedule 3.2 annexed hereto, except only those which, as stated on
Schedule 3.2, shall not be delivered;
(iii) The by-laws of the Borrower, certified by its
Secretary or an Assistant Secretary;
(iv) Copies of all corporate action taken by the
Borrower to authorize the execution, delivery and performance of each of the
Loan Documents; and
(v) An incumbency certificate with respect to the
Borrower.
(f) (i) The Borrower and each of its Subsidiaries shall
have complied and shall then be in compliance with all of the terms, covenants
and conditions of this Agreement applicable to them;
(ii) There shall exist no Event of Default or Default
hereunder; and
(iii) The representations and warranties contained in
Article 3 hereof shall be true and correct on the Effective Date;
and the Agent shall have received a Compliance Certificate dated the Effective
Date certifying, INTER ALIA, that the conditions set forth in this Subsection
4.1(f) are satisfied on such date.
(g) All legal matters incident to the closing of the
transactions contemplated by this Agreement shall be satisfactory to counsel to
the Agent.
SECTION 4.2 CONDITIONS TO SUBSEQUENT LOANS AND SWING LINE LOANS.
The obligation of each Bank to make each Loan and the obligation of the
Swing Line Lender to make any Swing Line Loan(s), shall be subject to the
fulfillment (to the satisfaction of the Agent or the Swing Line Lender, as the
case may be) of the following conditions precedent:
(a) The Effective Date shall have occurred and all of the
conditions set forth in Section 4.1 shall have been satisfied on or before such
date.
(b) The Agent shall have received a Borrowing Notice in
accordance with Section 2.3 hereof.
(c) On the date of each Loan or the Swing Line Loan, as the
case may be, all of the conditions set forth in subsection 4.1(f) shall have
been satisfied on such date effective as of the date of the related Borrowing
Notice, and the Agent shall have received a Compliance Certificate dated the
date thereof certifying, INTER ALIA, that the conditions set forth in subsection
4.1(f) are satisfied on such date.
38
(d) All legal matters incident to such Loan or the Swing Line
Loan shall be satisfactory to counsel for the Agent.
ARTICLE 5 DELIVERY OF FINANCIAL REPORTS, DOCUMENTS AND OTHER INFORMATION.
While the Total Commitments are outstanding, and, in the event any Loan
or Swing Line Loan remains outstanding, so long as the Borrower is indebted to
the Banks, the Swing Line Lender or the Agent and until payment in full of the
Notes and full and complete performance of all of its other obligations arising
hereunder, the Borrower shall deliver to each Bank:
SECTION 5.1 ANNUAL FINANCIAL STATEMENTS.
Annually, as soon as available, but in any event within 90 days after
the last day of each of its fiscal years, consolidated and consolidating
statements of financial condition, income and cash flows, a reconciliation of
net income and net cash provided by operating activities and consolidated
statements of changes in members' equity of the Borrower and its Subsidiaries,
and a consolidated balance sheet of the Borrower as at such last day of the
fiscal year, and the related consolidated statements of income and retained
earnings and cash flows of the Borrower, for such fiscal year, each prepared in
accordance with GAAP consistently applied, in reasonable detail, and, as to the
consolidated statements of the Borrower and its Subsidiaries and the statements
of the Borrower, certified without qualification by independent certified public
accountants satisfactory to the Agent, or certified, as to the consolidating
statements, by the chief financial officer of the Borrower, as fairly presenting
the financial positions and the results of operations of the Borrower and its
Subsidiaries, as at and for the year ending on its date and as having been
prepared in accordance with GAAP.
SECTION 5.2 QUARTERLY FINANCIAL STATEMENTS.
As soon as available, but in any event within 45 days after the end of
the Borrower's first three fiscal quarterly periods, consolidated and
consolidating statements of financial condition, income and cash flows, a
reconciliation of net income and net cash provided by operating activities and
consolidated statements of changes in members' equity of the Borrower and its
Subsidiaries and a consolidated balance sheet of the Borrower as of the last day
of such quarter, and statements of income and retained earnings and cash flows
for the Borrower, for such quarter, and comparative figures for the
corresponding period of the immediately preceding fiscal year, all in reasonable
detail, each such statement to be certified in a certificate of the president or
chief financial officer of the Borrower as fairly presenting the financial
position and the results of operations of the Borrower and its Subsidiaries as
at its date and for such quarter and as having been prepared in accordance with
GAAP (subject to year-end audit adjustments).
SECTION 5.3 LOAN PORTFOLIO REPORTS.
At the same time as it delivers the financial statements required under
the provisions of Section 5.2, a copy of:
(a) A monthly Loan Portfolio Report of the Borrower setting
forth, with respect to loans held in its portfolio, classifications relating to
delinquency, non-performance, risk
39
rating, loss allowances and other related matters as of the end of the last
month of the fiscal quarters covered by such financial statements, to be
prepared on substantially the same basis and to contain substantially the same
information as the Loan Portfolio Report, dated September 30, 2001, in respect
of the month of September, 2001, a copy of which was delivered to the Agent
prior to the date hereof, and
(b) A quarterly Report on Allowances for Loan Losses and
Reserves of the Borrower, to be prepared on substantially the same basis and to
contain substantially the same information as the Report on Allowances for Loan
Losses and Reserves, dated September 30, 2001, a copy of which was delivered to
the Agent prior to the date hereof,
provided that such monthly and quarterly reports need not, unless the Agent or
any Bank shall reasonably so request, disclose the names of the obligors on such
loans.
SECTION 5.4 OTHER INFORMATION.
Promptly after a written request therefor, such other financial data or
information evidencing compliance with the requirements of this Agreement, as
any Bank may reasonably request from time to time.
SECTION 5.5 NO DEFAULT CERTIFICATE.
At the same time as it delivers the financial statements required under
the provisions of Section 5.1 and 5.2, a certificate of the president or chief
executive officer or chief financial officer of the Borrower to the effect that
no Event of Default hereunder and that no default under any other agreement to
which the Borrower or any of its Subsidiaries is a party or by which it is
bound, or by which, to the best of the knowledge of the Borrower and any of its
Subsidiaries, any of its properties or assets, taken as a whole, may be
materially affected, and no event which, with the giving of notice or the lapse
of time, or both, would constitute such an Event of Default or default, exists,
or, if such cannot be so certified, specifying in reasonable detail the
exceptions, if any, to such statement. Such certificate shall be accompanied by
a detailed calculation indicating compliance with the covenants contained in
Section 6.9 hereof.
SECTION 5.6 CERTIFICATE OF ACCOUNTANTS.
At the same time as it delivers the financial statements required under
the provisions of Section 5.1, a certificate of the independent certified public
accountants of the Borrower and its Subsidiaries, specifically addressed to the
Borrower and its Subsidiaries and to each of the Banks, to the effect that
during the course of their audit of the operations of the Borrower and its
Subsidiaries and its condition as of the end of the fiscal year, nothing has
come to their attention which would indicate that an Event of Default or Default
hereunder has occurred or that there was any violation of the covenants of the
Borrower or any of its Subsidiaries contained in Section 6.9 or Article 7 of
this Agreement, or, if such cannot be so certified, specifying in reasonable
detail the exceptions, if any, to such statement.
40
SECTION 5.7 COPIES OF DOCUMENTS.
Promptly upon their becoming available, copies of any (a) financial
statements, projections, non-routine reports, notices (other than routine
correspondence), requests for waivers and proxy statements, in each case,
delivered by the Borrower to any lending institution other than the Banks; (b)
correspondence or notices received by the Borrower from any federal, state or
local governmental authority which regulates the operations of the Borrower,
relating to an actual or threatened change or development which would be
materially adverse to the Borrower; (c) registration statements and any
amendments and supplements thereto, and any regular and periodic reports, if
any, filed by the Borrower with any securities exchange or with the Securities
and Exchange Commission or any governmental authority succeeding to any or all
of the functions of the said Commission; and (d) letters of comment or
correspondence sent to the Borrower by any such securities exchange or such
Commission in relation to the Borrower and its affairs.
SECTION 5.8 NOTICES OF DEFAULTS.
(a) Promptly, notice of the occurrence of any event which
constitutes, or with notice to it or lapse of time, or both, would constitute,
an Event of Default hereunder, or would constitute or cause a material adverse
change in the condition, financial or otherwise, or the operations of the
Borrower.
(b) Promptly, notice of the occurrence of any event which
constitutes or with notice or lapse of time, or both would constitute, an event
of default by the Borrower under any material agreement of the Borrower, or
would constitute or cause a material adverse change in the condition, financial
or otherwise, or the operation of the Borrower.
SECTION 5.9 ERISA NOTICES.
(a) Concurrently with such filing, a copy of each Form 5500
which is filed with respect to each Plan with the IRS; and
(b) Promptly, upon their becoming available, copies of:
(i) all correspondence with the PBGC, the Secretary of Labor or any
representative of the IRS with respect to any Plan, relating to an actual or
threatened change or development which would be materially adverse to the
Borrower; (ii) copies of all actuarial valuations received by the Borrower with
respect to any Plan; and (iii) copies of any notices of Plan termination filed
by any Plan Administrator (as those terms are used in ERISA) with the PBGC and
of any notices from PBGC to the Borrower with respect to the intent of the PBGC
to institute involuntary termination proceedings.
ARTICLE 6 AFFIRMATIVE COVENANTS.
While the Total Commitments are outstanding, and, in the event any Loan
(or Swing Line Loan) remains outstanding, so long as the Borrower is indebted to
the Banks, the Swing Line Lender or the Agent, and until payment in full of the
Notes and full and complete performance of all of its other obligations arising
hereunder, the Borrower shall, and shall cause each of its Subsidiaries to:
41
SECTION 6.1 BOOKS AND RECORDS.
Keep proper books of record and account in a manner reasonably
satisfactory to the Agent and the Swing Line Lender in which full, true and
correct entries shall be made of all dealings or transactions in relation to its
business and activities.
SECTION 6.2 INSPECTIONS AND AUDITS.
Permit the Banks to make or cause to be made (and, after the
occurrence of and during the continuance of an Event of Default, at the
Borrower's expense), inspections and audits of any books, records and papers of
the Borrower and to make extracts therefrom and copies thereof, or to make
inspections and examinations of any properties and facilities of the Borrower,
on reasonable notice, at all such reasonable times and as often as any Bank may
reasonably require, in order to assure that the Borrower is and will be in
compliance with its obligations under the Loan Documents.
SECTION 6.3 MAINTENANCE AND REPAIRS.
Maintain in good repair, working order and condition, subject
to normal wear and tear, all material properties and assets from time to time
owned by it and used in or necessary for the operation of its business, and make
all reasonable repairs, replacements, additions and improvements thereto.
SECTION 6.4 CONTINUANCE OF BUSINESS.
Do, or cause to be done, all things reasonably necessary to preserve
and keep in full force and effect its corporate existence and all permits,
rights and privileges necessary for the proper conduct of its business and
continue to engage in the same line of business.
SECTION 6.5 COPIES OF CORPORATE DOCUMENTS.
Subject to the prohibitions set forth in Section 7.12 hereof, promptly
deliver to the Agent copies of any amendments or modifications to its by-laws,
certified by the secretary or assistant secretary of the corporation.
SECTION 6.6 PERFORM OBLIGATIONS.
Pay and discharge all of its obligations and liabilities, including,
without limitation, all taxes, assessments and governmental charges upon its
income and properties, when due, unless and to the extent only that such
obligations, liabilities, taxes, assessment and governmental charges shall be
contested in good faith and by appropriate proceedings and that, to the extent
required by GAAP then in effect, proper and adequate book reserves relating
thereto are established by the Borrower, and then only to the extent that a bond
is filed in cases where the filing of a bond is necessary to avoid the creation
of a Lien against any of its properties.
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SECTION 6.7 NOTICE OF LITIGATION.
Promptly notify the Agent in writing of any litigation, legal
proceeding or dispute, other than disputes in the ordinary course of business
or, whether or not in the ordinary course of business, involving amounts in
excess of Two Hundred and Fifty Thousand ($250,000) Dollars, affecting the
Borrower whether or not fully covered by insurance, and regardless of the
subject matter thereof (excluding, however, any actions relating to workmen's
compensation claims or negligence claims relating to use of motor vehicles, if
fully covered by insurance, subject to deductibles).
SECTION 6.8 INSURANCE.
(a) Maintain with responsible insurance companies such
insurance on such of its properties, in such amounts and against such risks as
is customarily maintained by similar businesses; file with the Agent upon its
request a detailed list of the insurance then in effect, stating the names of
the insurance companies, the amounts and rates of the insurance, dates of the
expiration thereof and the properties and risks covered thereby; and, within ten
(10) days after notice in writing from the Agent, obtain such additional
insurance as the Agent may reasonably request; and,
(b) Carry all insurance available through the PBGC or any
private insurance companies covering its obligations to the PBGC.
SECTION 6.9 FINANCIAL COVENANTS.
Have or maintain:
(a) At all times, Consolidated Effective Net Worth in an
amount not less than the sum of (i) Three Hundred Twelve Million Dollars
($312,000,000) PLUS (ii) the sum, for all fiscal quarters of the Borrower ended
subsequent to September 30, 2001, of the greater, for each fiscal quarter, of
(A) Zero Dollars ($0) and (B) fifty percent (50%) of Consolidated Net Earnings
for each such fiscal quarter.
(b) At all times, Consolidated Adjusted Net Worth in an amount
not less than the sum of (i) One Hundred Forty Seven Million Dollars
($147,000,000) PLUS (ii) the sum, for all fiscal quarters of the Borrower ended
subsequent to September 30, 2001, of the greater, for each fiscal quarter, of
(A) Zero Dollars ($0) and (B) fifty percent (50%) of Consolidated Net Earnings
for each such fiscal quarter.
(c) With respect to the Borrower at all times, Investments of
the types described in subsection 7.9(i) through (xii) hereof in an aggregate
amount not less than Twenty-Five Million ($25,000,000) Dollars.
(d) With respect to the Borrower for any period of four (4)
consecutive fiscal quarters of the Borrower, Consolidated Earnings Available for
Fixed Charges not less than one hundred ten percent (110%) of Consolidated Fixed
Charges for such period.
43
(e) With respect to the Borrower, Paid-in-Capital in NCB
Financial Corporation, a Delaware corporation, in an amount not greater than
$40,000,000.
(f) With respect to the Borrower at all times, Investments in
Subsidiaries (other than as set forth in subsection 6.9(e) above and excluding
SPV's and secured loans to NCB Capital) in an aggregate amount with respect to
all such Subsidiaries of not greater than $20,000,000.
(g) At all times, a ratio of Consolidated Debt to Consolidated
Adjusted Net Worth in an amount not greater than 9.5 to 1.0.
For purposes of calculating the ratio set forth in subsection 6.9(g) above only,
"Consolidated Adjusted Net Worth" shall be reduced by the amount by which the
sum of 75% of (i) 90 day overdue accounts, (ii) non-performing loans, (iii) real
estate owned in substance foreclosure and other miscellaneous repossessions, and
(iv) modified loans, exceed the reserves for credit losses established by the
Borrower and its Subsidiaries.
(h) Qualified Assets of not less than one hundred (100%)
percent of the sum (at any date of determination thereof) of:
(i) NCCB Senior Obligations, plus
(ii) the aggregate unpaid principal amount of Subordinated
Debt (as defined in the Senior Note Agreements as in effect on the date hereof),
less
(iii) the aggregate unpaid principal amount of Class A
Notes.
SECTION 6.10 REPORTABLE EVENTS.
Promptly notify the Agent in writing of the occurrence of any
Reportable Event, as defined in Section 4043 of ERISA, if a notice of such
Reportable Event is required under ERISA to be delivered to the PBGC within 30
days after the occurrence thereof, together with a description of such
Reportable Event and a statement of the action the Borrower intends to take with
respect thereto, together with a copy of the notice thereof given to the PBGC.
SECTION 6.11 COMPLIANCE WITH LAWS.
Comply in all material respects with all laws, rules, regulations and
orders applicable to it, including, without limitation, applicable provisions of
ERISA now or hereafter in effect.
SECTION 6.12 SENIOR NOTE AGREEMENTS.
Comply and remain at all times in compliance with the Senior Note
Agreements.
ARTICLE 7 NEGATIVE COVENANTS.
While the Total Commitments are outstanding, and, in the event any Loan
(or Swing Line Loan) remains outstanding, so long as the Borrower is indebted to
the Banks, the Swing Line Lender or the Agent and until payment in full of the
Notes and full and complete performance of all of its
44
other obligations arising hereunder, neither the Borrower nor any of its
Subsidiaries shall do, agree to do, or permit to be done, any of the following:
SECTION 7.1 INDEBTEDNESS.
Subject to subsections 6.9(f) and (g), create, incur, permit to exist
or have outstanding any Indebtedness, except:
(a) Indebtedness to the Banks, the Swing Line Lender and the
Agent under this Agreement and the Notes;
(b) Taxes, assessments and governmental charges, non-interest
bearing accounts payable and accrued liabilities, in any case not more than 90
days past due from the original due date thereof (e.g., deferred compensation
and deferred taxes) and in each case incurred and continuing in the ordinary
course of business;
(c) Indebtedness under, and as permitted by, the Senior Note
Agreements;
(d) Indebtedness under the Class A Notes; and
(e) Indebtedness as set forth on Schedule 7.1 annexed hereto.
SECTION 7.2 LIENS.
Create, or assume or permit to exist, any Lien on any of the properties
or assets of the Borrower whether now owned or hereafter acquired, except:
(a) Permitted Liens;
(b) As set forth on Schedule 3.5 annexed hereto; and
(c) To secure obligations in connection with Eligible
Derivatives; provided, however, in the event the Agent notifies the Borrower in
writing that either (i) the Total Commitments are being terminated pursuant to
the terms and conditions of the Loan Agreement, or (ii) the Banks have elected
not to extend or renew either of their respective A Commitments or B Commitments
upon maturity thereof, then the aggregate amount of obligations in respect of
Eligible Derivatives secured by such Liens shall not exceed the greater of: (A)
$10,000,000, or (B) the aggregate amount of such obligations outstanding on the
date such notification is delivered to the Borrower by the Agent pursuant to
this subsection 7.2(c).
SECTION 7.3 GUARANTIES.
Assume, endorse, be or become liable for, or guarantee, the obligations
of any Person, except by the endorsement of negotiable instruments for deposit
or collection in the ordinary course of business. For the purposes hereof, the
term "guarantee" shall include any agreement, whether such agreement is on a
contingency or otherwise, to purchase, repurchase or otherwise acquire
Indebtedness of any other Person, or to purchase, sell or lease, as lessee or
lessor, property or
45
services, in any such case primarily for the purpose of enabling another
person to make payment of Indebtedness, or to make any payment (whether as an
advance, capital contribution, purchase of an equity interest or otherwise)
to assure a minimum equity, asset base, working capital or other balance
sheet or financial condition, in connection with the Indebtedness of another
Person, or to supply funds to or in any manner invest in another Person in
connection with such Person's Indebtedness. Asset Securitization Recourse
Liabilities shall not constitute "guarantees" hereunder.
SECTION 7.4 MERGERS, ACQUISITIONS.
Merge or consolidate with any Person (whether or not the Borrower is
the surviving entity), except a Subsidiary may consolidate with, or merge into,
the Borrower or another Subsidiary, or, except as permitted by subsection
6.9(f), acquire all or substantially all of the assets or any of the capital
stock of any Person.
SECTION 7.5 REDEMPTIONS; DISTRIBUTIONS.
(a) Except for redemptions by the Borrower of Class B1 Common
Stock from the holders thereof who no longer have loans from the Borrower
outstanding, purchase, redeem, retire or otherwise acquire, directly or
indirectly, or make any sinking fund payments with respect to, any shares of any
class of stock of the Borrower now or hereafter outstanding or set apart any sum
for any such purpose; or,
(b) Except as permitted under the Senior Note Agreements,
declare or pay any dividends or make any distribution of any kind on the
Borrower's outstanding stock, or set aside any sum for any such purpose, except
that the Borrower may declare or pay any dividend payable solely in shares of
its common stock and any Subsidiary may declare or pay any dividend to the
Borrower.
SECTION 7.6 INTENTIONALLY OMITTED.
SECTION 7.7 CHANGES IN BUSINESS.
Make any material change in its business, or in the nature of its
operation, or liquidate or dissolve itself (or suffer any liquidation or
dissolution), or convey, sell, lease, assign, transfer or otherwise dispose of
any material portion of its property, assets or business except in the ordinary
course of business and for a fair consideration or dispose of any shares of
stock or any Indebtedness, whether now owned or hereafter acquired.
SECTION 7.8 PREPAYMENTS.
Make any voluntary or optional prepayment of any Indebtedness of the
Borrower or any of its Subsidiaries for borrowed money incurred or permitted to
exist under the terms of this Agreement, other than (i) Indebtedness evidenced
by the Notes; (ii) Indebtedness described on Schedule 7.1 annexed hereto, and
(iii) any such Indebtedness which has a maturity of not more than one year from
the date of its incurrence.
46
SECTION 7.9 INVESTMENTS.
Make, or suffer to exist, any Investment in any Person, including,
without limitation, any shareholder, director, officer or employee of the
Borrower or any of its Subsidiaries, except investments in:
(i) Demand deposits in and one-to-four day loans
which bear interest at the Federal Funds Rate or other similar short-term
unsecured loans to Selected Banks;
(ii) Marketable obligations of the United States;
(iii) Marketable obligations guaranteed by or insured by
the United States, or those for which the full faith and credit of the United
States is pledged for the repayment of principal and interest thereon;
(iv) Marketable obligations issued, guaranteed, or fully
insured by any agency, instrumentality, or corporation of the United States
established or to be established by the Congress, for which the credit of such
agency, instrumentality, or corporation is pledged for the repayment of the
principal and interest thereof;
(v) Marketable general obligations of a state, a territory
or a possession of the United States, or any political subdivision of any of the
foregoing, or the District of Columbia, unconditionally secured by the full
faith and credit of such state, territory, possession, political subdivision or
district provided that such state, territory, possession, political subdivision
or district has general taxing authority and the power to levy such taxes as may
be required for the payment of principal and interest thereof;
(vi) Domestic and LIBOR, negotiable time and variable rate
certificates of deposit issued by Selected Banks;
(vii) Marketable bankers' acceptances and finance bills
accepted by Selected Banks;
(viii) Prime commercial paper having a credit rating equal
to at least A-2 issued by S&P or P-2 issued by ▇▇▇▇▇'▇ or F-2 issued by Fitch
IBCA, Inc.;
(ix) Marketable corporate debt securities having at least
an A credit rating issued by S&P or an A-2 issued by ▇▇▇▇▇'▇;
(x) Repurchase, reverse repurchase agreements and
security lending agreements collateralized by securities of the type described
in subsections (ii) and (iv);
(xi) Asset-backed securities issued against a pool of
receivables which have a long-term rating of AAA or better by Standard & Poor's,
▇▇▇▇▇'▇ or Fitch IBCA, Inc. and which have an average life or final maturity of
no more than five years;
47
(xii) Mortgage-backed securities issued against an
underlying pool of mortgages which have a long-term rating of AAA or better by
Standard & Poor's, ▇▇▇▇▇'▇ or ▇▇▇▇▇ IBCA, Inc.; provided such mortgage-backed
securities shall have an average life, as determined by the dealer's prepayment
assumptions at the time of purchase, of no more than five years;
(xiii) Subsidiaries, subject to the limitations stated in
subsection 6.9(e) hereof;
(xiv) Promissory notes and other interest bearing
obligations acquired in the ordinary course of business and the issuance of
letters of credit in the ordinary course of business; and
(xv) Equity Investments provided that: (i) the aggregate
amount of such equity Investments (on a cumulative basis) does not exceed an
amount equal to ten (10%) percent of Consolidated Adjusted Net Worth as at any
date of determination thereof, after giving effect to any such equity
Investment, and (ii) no single equity Investment in any Person may be greater
than $2,000,000. For purposes hereof, equity Investment(s) shall mean the amount
paid or committed to be paid in connection with the acquisition of any stock
(common or preferred) or other equity securities of any Person or any obligation
convertible into or exchangeable for a right, option or warrant to acquire such
equity securities.
SECTION 7.10 FISCAL YEAR.
Change its fiscal year.
SECTION 7.11 ERISA OBLIGATIONS.
(a) Be or become obligated to the PBGC other than in respect
of annual premium payments in excess of $50,000.
(b) Be or become obligated to the IRS with respect to excise
or other penalty taxes provided for in those provisions of Section 4975 of the
Code, as in effect or hereafter amended or supplemented, in excess of $50,000.
SECTION 7.12 AMENDMENT OF DOCUMENTS.
(a) Modify, amend, supplement or terminate, or agree to
modify, amend, supplement or terminate its by-laws, in any respect that could
materially and adversely affect the financial condition or business of the
Borrower or its ability to perform hereunder or could materially and adversely
affect the rights of the Agent and the Banks hereunder.
(b) Modify, amend or supplement or agree to modify, amend or
supplement the Senior Note Agreements or the Class A Notes (including, without
limitation, the subordination provisions set forth therein), in any respect that
could materially and adversely affect the financial condition or business of the
Borrower or its ability to perform hereunder or could materially and adversely
affect the rights of the Agent and the Banks hereunder.
48
SECTION 7.13 TRANSACTIONS WITH AFFILIATES.
Except as expressly permitted by this Agreement, and as set forth on
Schedule 7.13 annexed hereto, directly or indirectly: (i) make any Investment in
an Affiliate; or (ii) consolidate with or purchase or acquire assets from an
Affiliate; or enter into any other transaction directly or indirectly with or
for the benefit of any Affiliate (including, without limitation, guarantees and
assumptions of obligations of an Affiliate); provided, however, that (a) any
Affiliate who is an individual may serve as an employee or director of the
Borrower and receive reasonable compensation for his services in such capacity,
(b) the Borrower may enter into any transaction with an Affiliate providing for
the leasing of property, the rendering or receipt of services or the purchase or
sale of product, inventory and other assets in the ordinary course of business
if the monetary or business consideration arising therefrom would be
substantially as advantageous to the Borrower as the monetary or business
consideration which would obtain in a comparable arm's length transaction with a
Person not an Affiliate.
ARTICLE 8 EVENTS OF DEFAULT.
If any one or more of the following events ("EVENTS OF DEFAULT") shall
occur and be continuing, the Total Commitments shall terminate and the entire
unpaid balance of the principal of and interest on the Notes outstanding and all
other obligations and Indebtedness of the Borrower to the Banks, the Swing Line
Lender and the Agent arising hereunder and under the other Loan Documents shall
immediately become due and payable upon written notice to that effect given to
the Borrower by the Agent (except that in the case of the occurrence of any
Event of Default described in Section 8.7 no such notice shall be required),
without presentment or demand for payment, notice of non-payment, protest or
further notice or demand of any kind, all of which are expressly waived by the
Borrower; provided, however, that: (i) in case of the occurrence of the Event of
Default described in Section 8.1, no such notice shall be required after the
passage of ten (10) days after the Grace Period provided for therein; and (ii)
in case of the occurrence of the Event of Default described in Section 8.7, no
such notice shall be required.
SECTION 8.1 PAYMENTS.
Failure to make any payment or mandatory prepayment of principal when
due or failure to make any payment of interest upon any Note or any fee pursuant
to this Agreement within five (5) Business Days after the due date thereof (the
"GRACE PERIOD"); or,
SECTION 8.2 INCURRING OF INDEBTEDNESS DURING THE GRACE PERIOD.
Incurring of any Indebtedness during the Grace Period including,
without limitation, the issuance of Senior Notes; or,
SECTION 8.3 COVENANTS.
Failure to perform or observe any of the agreements of the Borrower
contained in Section 6.9 or Article 7 hereof (except for the agreements of the
Borrower contained in Sections 7.9 or 7.13); or,
49
SECTION 8.4 OTHER COVENANTS.
Failure by the Borrower to perform or observe the agreements of the
Borrower contained in Sections 7.9 or 7.13 hereof or any other term, condition
or covenant of this Agreement or of any of the other Loan Documents to which it
is a party, including, without limitation, any of the Notes, which shall remain
unremedied for a period of fifteen (15) days after notice thereof shall have
been given to the Borrower by the Agent; or,
SECTION 8.5 OTHER DEFAULTS.
(a) Failure by the Borrower or any of its Subsidiaries to
perform or observe any term, condition or covenant of any bond, note, debenture,
loan agreement, indenture, guaranty, trust agreement, mortgage or similar
instrument to which the Borrower or such Subsidiary is a party or by which it is
bound, or by which any of its properties or assets may be affected including,
without limitation, the Senior Note Agreements or any other evidences of
Indebtedness (a "DEBT INSTRUMENT"), so that, as a result of any such failure to
perform, the Indebtedness included therein or secured or covered thereby may be
declared due and payable prior to the date on which such Indebtedness would
otherwise become due and payable; or,
(b) Any event or condition referred to in any Debt Instrument
shall occur or fail to occur, so that, as a result thereof, the Indebtedness
included therein or secured or covered thereby may be declared due and payable
prior to the date on which such Indebtedness would otherwise become due and
payable; or,
(c) Failure to pay any Indebtedness for borrowed money when
due under any Debt Instrument, whether at final maturity or, in the case of Debt
Instruments payable on demand, upon demand; or,
SECTION 8.6 REPRESENTATIONS AND WARRANTIES.
Any representation or warranty made in writing to the Banks, the Swing
Line Lender or the Agent in any of the Loan Documents or in connection with the
making of the Loans or the Swing Line Loans, or any certificate, statement or
report made or delivered in compliance with this Agreement, shall have been
false or misleading in any material respect when made or delivered; or,
SECTION 8.7 BANKRUPTCY.
(a) The Borrower or any of its Material Subsidiaries shall
make an assignment for the benefit of creditors, file a petition in bankruptcy,
be adjudicated insolvent, petition or apply to any tribunal for the appointment
of a receiver, custodian, or any trustee for it or a substantial part of its
assets, or shall commence any proceeding under any bankruptcy, reorganization,
arrangement, readjustment of debt, dissolution or liquidation law or statute of
any jurisdiction, whether now or hereafter in effect, or the Borrower or any of
its Material Subsidiaries shall take any action to authorize any of the
foregoing actions; or there shall have been filed any such petition or
application, or any such proceeding shall have been commenced against it, which
remains undismissed for a period of thirty (30) days or more; or any order for
relief shall be entered in any such proceeding; or the Borrower or any of its
Material Subsidiaries by any act or omission shall
50
indicate its consent to, approval of or acquiescence in any such petition,
application or proceeding or the appointment of a custodian, receiver or any
trustee for it or any substantial part of any of its properties, or shall suffer
any custodianship, receivership or trusteeship to continue undischarged for a
period of thirty (30) days or more; or,
(b) The Borrower or any of its Material Subsidiaries shall
generally not pay its debts as such debts become due; or,
(c) The Borrower or any of its Material Subsidiaries shall
have concealed, removed, or permitted to be concealed or removed, any part of
its property, with intent to hinder, delay or defraud its creditors or any of
them or made or suffered a transfer of any of its property which may be
fraudulent under any bankruptcy, fraudulent conveyance or similar law; or shall
have made any transfer of its property to or for the benefit of a creditor at a
time when other creditors similarly situated have not been paid; or shall have
suffered or permitted, while insolvent, any creditor to obtain a Lien upon any
of its property through legal proceedings or distraint which is not vacated
within thirty (30) days from the date thereof;
For purposes of this Section 8.7, a Material Subsidiary is a Subsidiary that,
together with any other Subsidiary taking or being subject to any action
identified in subsections (a), (b) or (c), comprises at least two (2%) percent
of total assets or total liabilities of the Borrower, on a consolidated basis;
or
SECTION 8.8 JUDGMENTS.
Any judgment against the Borrower or any of its Subsidiaries or any
attachment, levy of execution against any of its properties for any amount in
excess of $500,000 shall remain unpaid, unstayed on appeal, undischarged,
unbonded or undismissed for a period of sixty (60) days or more; or,
SECTION 8.9 ERISA.
(a) The termination of any Plan or the institution by the PBGC
of proceedings for the involuntary termination of any Plan, in either case, by
reason of, or which results or could result in, a "material accumulated funding
deficiency" under Section 412 of the Code; or,
(b) Failure by the Borrower to make required contributions, in
accordance with the applicable provisions of ERISA, to each of the Plans
hereafter established or assumed by it.
ARTICLE 9 THE AGENT.
SECTION 9.1 APPOINTMENT, POWERS AND IMMUNITIES.
Each Bank hereby irrevocably appoints and authorizes the Agent to act
as its agent hereunder, and under the other Loan Documents with such powers as
are specifically delegated to the Agent by the terms of this Agreement, and the
other Loan Documents together with such other powers as are reasonably
incidental thereto. The Agent shall have no duties or responsibilities except
those expressly set forth in this Agreement and the other Loan Documents and
shall not be a trustee for any Bank. The Agent shall not be responsible to the
Banks for any recitals, statements,
51
representations or warranties contained in this Agreement, or the other Loan
Documents in any certificate or other document referred to or provided for in,
or received by any of them under, this Agreement, or the other Loan Documents,
or for the value, validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement or the other Loan Documents or any other document
referred to or provided for herein or therein. The Agent may employ agents and
attorneys-in-fact and shall not be answerable, except as to money or securities
received by it or its authorized agents, for the negligence or misconduct of any
such agents or attorneys-in-fact selected by it with reasonable care. Neither
the Agent nor any of its directors, officers, employees or agents shall be
liable or responsible for any action taken or omitted to be taken by it or them
hereunder, the other Loan Documents or in connection herewith or therewith,
except for its or their own gross negligence or willful misconduct.
SECTION 9.2 RELIANCE BY AGENT.
The Agent shall be entitled to rely upon any certification, notice or
other communication (including any thereof by telephone, telex, telegram or
cable) believed by it to be genuine and correct and to have been signed or sent
by or on behalf of the proper person or persons, and upon advice and statements
of legal counsel, independent accountants and other experts selected by the
Agent. As to any matters not expressly provided for by this Agreement or the
other Loan Documents the Agent shall in all cases be fully protected in acting,
or in refraining from acting, hereunder, or under the other Loan Documents in
accordance with instructions signed by the Majority Banks, and such instructions
of the Majority Banks and any action taken or failure to act pursuant thereto
shall be binding on all of the Banks.
SECTION 9.3 EVENTS OF DEFAULT.
The Agent shall not be deemed to have knowledge of the occurrence of a
Default (other than the non-payment of principal of or interest on Loans) unless
the Agent has received notice from a Bank or the Borrower specifying such
Default and stating that such notice is a "Notice of Default". In the event that
the Agent receives such a notice of the occurrence of a Default, the Agent shall
give notice thereof to the Banks (and shall give each Bank notice of each such
non-payment). The Agent shall (subject to Section 9.7 hereof) take such action
with respect to such Default as shall be directed by the Majority Banks.
SECTION 9.4 RIGHTS AS A BANK.
With respect to its Total Commitment, and the Loans made by it, the
Agent in its capacity as a Bank hereunder shall have the same rights and powers
hereunder as any other Bank and may exercise the same as though it were not
acting as the Agent, and the term "Bank" or "Banks" shall, unless the context
otherwise indicates, include the Agent in its individual capacity. The Agent and
its Affiliates may (without having to account therefor to any Bank) accept
deposits from, lend money to and generally engage in any kind of banking, trust
or other business with the Borrower or its Affiliates, as if it were not acting
as the Agent, and the Agent may accept fees and other consideration from the
Borrower or its Affiliates, for services in connection with this Agreement, or
any of the other Loan Documents or otherwise without having to account for the
same to the Banks.
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SECTION 9.5 INDEMNIFICATION.
(a) The Banks shall indemnify the Agent (to the extent not
reimbursed by the Borrower under Sections 10.1 and 10.2 hereof), ratably in
accordance with the aggregate principal amount of the Loans made by the Banks
(or, if no Loans are at the time outstanding, ratably in accordance with their
respective Total Commitments), for any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind and nature whatsoever which may be imposed on, incurred by or
asserted against the Agent in any way relating to or arising out of this
Agreement, or any of the other Loan Documents (other than the Swing Line Note)
or any other documents contemplated by or referred to herein or therein or the
transactions contemplated by or referred to herein or therein or the
transactions contemplated hereby and thereby (including, without limitation, the
costs and expenses which the Borrower is obligated to pay under Sections 10.1
and 10.2 hereof, but excluding, unless a Default has occurred and is continuing,
normal administrative costs and expenses incident to the performance of its
agency duties hereunder or under the other Loan Documents (other than the Swing
Line Note)) or the enforcement of any of the terms hereof or of the other Loan
Documents, or of any such other documents, provided that no Bank shall be liable
for any of the foregoing to the extent they arise from the gross negligence or
willful misconduct of the party to be indemnified.
(b) The Banks shall indemnify the Swing Line Lender (to the
extent not reimbursed by the Borrower under Sections 10.1 and 10.2 hereof),
ratably in accordance with the aggregate principal amount of the B Loans made by
the Banks (or, if no B Loans are at the time outstanding, ratably in accordance
with their respective B Commitments), for any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind and nature whatsoever which may be imposed on,
incurred by or asserted against the Swing Line Lender in any way relating to or
arising out of this Agreement, or the Swing Line Note (including, without
limitation, the costs and expenses which the Borrower is obligated to pay under
Sections 10.1 and 10.2 hereof) or the enforcement of any of the terms hereof in
respect of the Swing Line Loan provisions and the Swing Line Note, provided that
no Bank shall be liable for any of the foregoing to the extent they arise from
the gross negligence or willful misconduct of the party to be indemnified.
SECTION 9.6 NON-RELIANCE ON AGENT AND OTHER BANKS.
Each Bank agrees that it has, independently and without reliance on the
Agent or any other Bank, and based on such documents and information as it has
deemed appropriate, made its own credit analysis of the Borrower and decision to
enter into this Agreement and that it will, independently and without reliance
upon the Agent or any other Bank, and based on such documents and information as
it shall deem appropriate at the time, continue to make its own analysis and
decisions in taking or not taking action under this Agreement, or the other Loan
Documents. The Agent shall not be required to keep itself informed as to the
performance or observance by the Borrower of this Agreement, or the other Loan
Documents or any other document referred to or provided for herein or therein or
to inspect the properties or books of the Borrower. Except for notices, reports
and other documents and information expressly required to be furnished to the
Banks by the Agent hereunder or the other Loan Documents, the Agent shall not
have any duty or responsibility to provide any Bank with any credit or other
information concerning the affairs,
53
financial condition or business of the Borrower, which may come into the
possession of the Agent or any of its Affiliates.
SECTION 9.7 FAILURE TO ACT.
Except for action expressly required of the Agent hereunder, or under
the other Loan Documents, the Agent shall in all cases be fully justified in
failing or refusing to act hereunder or thereunder unless it shall be
indemnified to its satisfaction by the Banks against any and all liability and
expense which may be incurred by it by reason of taking or continuing to take
any such action.
SECTION 9.8 RESIGNATION OR REMOVAL OF AGENT.
Subject to the appointment and acceptance of a successor Agent as
provided below, the Agent may resign at any time by giving not less than 10 days
prior written notice thereof to the Banks and the Borrower and the Agent may be
removed at any time with or without cause by the Majority Banks. Upon any such
resignation or removal, the Majority Banks shall have the right to appoint a
successor Agent. If no successor Agent shall have been so appointed by the
Majority Banks and shall have accepted such appointment within 30 days after the
retiring Agent's giving of notice of resignation or the Majority Banks' removal
of the retiring Agent, then the retiring Agent may, on behalf of the Banks,
after consultation with the Borrower, appoint a successor Agent which shall be
one of the Banks. Upon the acceptance of any appointment as Administrative Agent
hereunder by a successor Agent, such successor Agent shall thereupon succeed to
and become vested with all the rights, powers, privileges and duties of the
retiring Agent, and the retiring Agent shall be discharged from its duties and
obligations hereunder and under the other Loan Document. After any retiring
Agent's resignation or removal hereunder as Administrative Agent, the provisions
of this Article 9 shall continue in effect for its benefit in respect of any
actions taken or omitted to be taken by it while it was acting as the Agent.
SECTION 9.9 OTHER AGENTS; LEAD ARRANGER; BOOK MANAGER.
None of the Banks identified on the facing page of this Agreement as a
"syndication agent," "documentation agent", "lead arranger" or "book manager"
shall have any right, power, obligation, liability, responsibility or duty under
this Agreement other than those applicable to all Banks as such. Without
limiting the foregoing, none of the Banks so identified shall or be deemed to
have any fiduciary relationship with any other Bank. Each Bank acknowledges that
it has not relied, and will not rely, on any of the Banks so identified in
deciding to enter into this Agreement or in taking or not taking action
hereunder.
ARTICLE 10 MISCELLANEOUS PROVISIONS.
SECTION 10.1 FEES AND EXPENSES; INDEMNITY.
The Borrower will promptly (and in any event within 30 days after its
receipt of an invoice or statement therefor) pay all costs of the Agent in
preparing the Loan Documents and all costs and expenses of the issue of the
Notes and of the Borrower's performance of and compliance with all agreements
and conditions contained herein on its part to be performed or complied with and
the reasonable fees and expenses and disbursements of counsel to the Agent, in
connection with the
54
preparation, execution and delivery, administration, interpretation and
enforcement of this Agreement, the other Loan Documents and all other
agreements, instruments and documents relating to this transaction, the
consummation of the transactions contemplated by all such documents, the
negotiation, preparation and execution and delivery of any amendment,
modification or supplement of or to, or any consent or waiver under, any such
document (or any such instrument which is proposed but not executed and
delivered) and with any claim or action threatened, made or brought against any
of the Banks, the Swing Line Lender or the Agent arising out of or relating to
any extent to this Agreement, the other Loan Documents or the transactions
contemplated hereby or thereby. In addition, the Borrower will promptly (and in
any event within 30 days after their receipt of an invoice or statement
therefor) pay all costs and expenses (including, without limitation, reasonable
fees and disbursements of counsel) suffered or incurred by each Bank and the
Swing Line Lender in connection with its enforcement of the payment of the Notes
held by it or any other sum due to it under this Agreement or any of the other
Loan Documents or any of its other rights hereunder or thereunder. In addition
to the foregoing, the Borrower shall indemnify each Bank, the Swing Line Lender
and the Agent against, and hold each of them harmless from, any loss,
liabilities, damages, claims, costs and expenses (including reasonable
attorneys' fees and disbursements) suffered or incurred by any of them arising
out of, resulting from or in any manner connected with, the execution, delivery
and performance of this Agreement and the other Loan Documents, the Loans, the
Swing Line Loans and any and all transactions related to or consummated in
connection with the Loans and the Swing Line Loans including, without
limitation, losses, liabilities, damages, claims, costs and expenses suffered or
incurred by the Agent, the Swing Line Lender or any Bank in investigating,
preparing for, defending against, or providing evidence, producing documents or
taking any other action in respect of any commenced or threatened litigation,
administrative proceeding or investigation under any federal securities law or
any other statute of any jurisdiction, or any regulation, or at common law or
otherwise, which is alleged to arise out of or is based upon (1) any untrue
statement or alleged untrue statement of any material fact of the Borrower and
its affiliates in any document or schedule filed with the Securities and
Exchange Commission or any other governmental body; (2) any omission or alleged
omission to state any material fact required to be stated in such document or
schedule, or necessary to make the statements made therein, in light of the
circumstances under which made, not misleading; (3) any acts, practices or
omissions or alleged acts, practices or omissions of the Borrower or its agents
related to the making of any acquisition, purchase of shares or assets pursuant
thereto, financing of such purchases or the consummation of any other
transactions contemplated by any such acquisitions which are alleged to be in
violation of any federal securities law or of any other statute, regulation or
other law of any jurisdiction applicable to the making of any such acquisition,
the purchase of shares or assets pursuant thereto, the financing of such
purchases or the consummation of the other transactions contemplated by any such
acquisition; or (4) any withdrawals, termination or cancellation of any such
proposed acquisition for any reason whatsoever; except to the extent any of the
foregoing results form the gross negligence or willful misconduct of the party
to be indemnified. The indemnity set forth herein shall be in addition to any
other obligations or liabilities of the Borrower to the Agent, the Swing Line
Lender and the Banks hereunder or at common law or otherwise. The provisions of
this Section 10.1 shall survive the payment of the Notes and the termination of
this Agreement.
55
SECTION 10.2 TAXES.
If, under any law in effect on the date of the closing of any Loan or
Swing Line Loan hereunder, or under any retroactive provision of any law
subsequently enacted, it shall be determined that any Federal, state or local
tax is payable in respect of the issuance of any Note, as contemplated by this
Agreement, then the Borrower will pay any such tax and all interest and
penalties, if any, and will indemnify the Banks, the Swing Line Lender and the
Agent against and save each of them harmless from any loss or damage resulting
from or arising out of the nonpayment or delay in payment of any such tax. If
any such tax or taxes shall be assessed or levied against any Bank, the Swing
Line Lender or any other holder of a Note, such Bank, or such other holder, as
the case may be, may notify the Borrower and make immediate payment thereof,
together with interest or penalties in connection therewith, and shall thereupon
be entitled to and shall receive immediate reimbursement therefor from the
Borrower. Notwithstanding any other provision contained in this Agreement, the
covenants and agreements of the Borrower in this Section 10.2 shall survive
payment of the Notes and the termination of this Agreement.
SECTION 10.3 PAYMENTS.
As set forth in Section 2.14 hereof, all payments by the Borrower on
account of principal, interest, fees and other charges (including any
indemnities) shall be made to the Agent at the Principal Office of the Agent
(except with respect to Swing Line Loans which shall be payable in accordance
with subsection 2.11 hereof), in lawful money of the United States of America in
immediately available funds, by wire transfer or otherwise, not later than 12:00
Noon, New York City time on the date such payment is due. Any such payment made
on such date but after such time shall, if the amount paid bears interest, be
deemed to have been made on and interest shall continue to accrue and be payable
thereon until the next succeeding Business Day. If any payment of principal or
interest becomes due on a day other than a Business Day, then payment shall be
due on the next Business Day and such extension shall be included in computing
interest in connection with such payment. All payments hereunder and under the
Notes shall be made without set-off or counterclaim and in such amounts as may
be necessary in order that all such payments shall not be less than the amounts
otherwise specified to be paid under this Agreement and the Notes (after
withholding for or on account of (i) any present or future taxes, levies,
imposts, duties or other similar charges of whatever nature imposed by any
government or any political subdivision or taxing authority thereof, other than
any tax (except those referred to in clause (ii) below) on or measured by the
net income of the Bank or the Swing Line Lender to which any such payment is due
pursuant to applicable federal, state and local income tax laws, and (ii)
deduction of amounts equal to the taxes on or measured by the net income of such
Bank or the Swing Line Lender payable by such Bank or the Swing Line Lender with
respect to the amount by which the payments required to be made under this
sentence exceed the amounts otherwise specified to be paid in this Agreement and
the Notes). Upon payment in full of any Note, the Bank holding such Note shall
▇▇▇▇ the Note "Paid" and return it to the Borrower.
56
SECTION 10.4 SURVIVAL OF AGREEMENTS AND REPRESENTATIONS; WAIVER OF
TRIAL BY JURY.
All agreements, representations and warranties made herein shall
survive the delivery of this Agreement and the Notes. THE BORROWER WAIVES TRIAL
BY JURY IN ANY LITIGATION IN ANY COURT WITH RESPECT TO, IN CONNECTION WITH, OR
ARISING OUT OF, THIS AGREEMENT, THE NOTES, ANY OF THE OTHER LOAN DOCUMENTS, OR
ANY INSTRUMENT OR DOCUMENT DELIVERED PURSUANT TO THIS AGREEMENT, OR THE
VALIDITY, PROTECTION, INTERPRETATION, COLLECTION OR ENFORCEMENT THEREOF.
SECTION 10.5 LIEN ON AND SET-OFF OF DEPOSITS.
As security for the due payment and performance of all amounts payable
hereunder and under the Notes, the Borrower hereby grants to the Swing Line
Lender and the Agent for the ratable benefit of the Banks a Lien on any and all
deposits or other sums at any time credited by or due from the Agent or any Bank
to the Borrower, whether in regular or special depository accounts or otherwise,
and any and all monies, securities and other property of the Borrower, and the
proceeds thereof, now or hereinafter held or received by or in transit to any
Bank, the Swing Line Lender or the Agent from or for the Borrower, whether for
safekeeping, custody, pledge, transmission, collection or otherwise, and any
such deposits, sums, monies, securities and other property, may at any time
after the occurrence and during the continuance of any Event of Default be
set-off, appropriated and applied by any Bank, the Swing Line Lender or the
Agent against any of the Indebtedness of the Borrower to the Banks and the
Agent, whether or not any of such Indebtedness is then due.
SECTION 10.6 MODIFICATIONS, CONSENTS AND WAIVERS; ENTIRE AGREEMENT.
No amendment or waiver of any provision of this Agreement or the Notes
or any other Loan Document, nor consent to any departure by the Borrower
therefrom, shall in any event be effective unless the same shall be in writing
and signed by the Majority Banks, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given; provided, however, that (a) no amendment, waiver or consent shall, unless
in writing and signed by all of the Banks, do any of the following at any time:
(i) change the percentage of (A) the A Commitments or the B Commitments, or (B)
the aggregate unpaid principal amount of the Loans that, in each case, shall be
required for the Banks or any of them to take any action hereunder; or (ii)
amend this Section 10.6 or the definition of Majority Banks; and (b) no
amendment, waiver or consent shall, unless in writing and signed by the Majority
Banks and each Bank that has an A Commitment and/or a B Commitment, if affected
by such amendment, waiver or consent, (i) increase the A Commitment and/or a B
Commitment, as applicable, of such Bank (it being agreed that waiver of a
condition(s) to lend shall not be construed as increasing such Commitments),
(ii) reduce the principal of, or interest on (except for waivers of default
interest rates), the Notes held by such Bank or any fees or other amounts
payable hereunder to such Bank, (iii) change any date fixed for any payment of
principal of, or interest on, the Notes held by such Bank or any fees or other
amounts payable hereunder to such Bank, or (iv) change the order of application
of any prepayment or the PRO RATA treatment of the Banks set forth in Article 2
hereof in any manner that materially
57
affects such Bank; provided, further, that no amendment, waiver or consent
shall, unless in writing and signed by the Swing Line Lender, in addition to the
Banks required above to take such action, affect the rights or obligations of
the Swing Line Lender under this Agreement or any other Loan Document; and
provided, further, that no amendment, waiver or consent shall, unless in writing
and signed by the Agent in addition to the Banks required above to take such
action, affect the rights or duties of the Agent under this Agreement or any
other Loan Document. This Agreement embodies the entire agreement and
understanding among the Banks, the Agent and the Borrower and supersedes all
prior agreements and understandings relating to the subject matter hereof.
SECTION 10.7 REMEDIES CUMULATIVE.
Each and every right granted to the Agent, the Swing Line Lender and
the Banks hereunder or under any other document delivered hereunder or in
connection herewith, or allowed it by law or equity, shall be cumulative and may
be exercised from time to time. No failure on the part of the Agent, the Swing
Line Lender or any Bank or the holder of any Note to exercise, and no delay in
exercising, any right shall operate as a waiver thereof, nor shall any single or
partial exercise of any right preclude any other or future exercise thereof or
the exercise of any other right. The due payment and performance of the
Borrower's indebtedness, liabilities and obligations under the Notes and this
Agreement shall be without regard to any counterclaim, right of offset or any
other claim whatsoever which the Borrower may have against any Bank, the Swing
Line Lender or the Agent and without regard to any other obligation of any
nature whatsoever which any Bank, the Swing Line Lender or the Agent may have to
the Borrower, and no such counterclaim or offset shall be asserted by the
Borrower in any action, suit or proceeding instituted by any Bank, the Swing
Line Lender or the Agent for payment or performance of the Borrower's
indebtedness, liabilities or obligations under the Notes, this Agreement or
otherwise.
SECTION 10.8 FURTHER ASSURANCES.
At any time and from time to time, upon the request of the Agent, the
Borrower, shall execute, deliver and acknowledge or cause to be executed,
delivered and acknowledged, such further documents and instruments and do such
other acts and things as the Agent may reasonably request in order to fully
effect the purposes of this Agreement, the Notes, the other Loan Documents and
any other agreements, instruments and documents delivered pursuant hereto or in
connection with the Loans and the Swing Line Loans.
SECTION 10.9 NOTICES.
All notices, requests, reports and other communications pursuant to
this Agreement except for notices pursuant to Section 2.3 hereof shall be in
writing, either by letter (delivered by hand or commercial messenger service or
sent by certified mail, return receipt requested, except for routine reports
delivered in compliance with Article 5 hereof which may be sent by ordinary
first-class mail), telecopier or telegram, addressed as follows:
58
(a) If to the Borrower:
National Consumer Cooperative Bank
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇.▇. / ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attention: Chief Financial Officer
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
(b) ▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
(c) If to any Bank:
To its address set forth below
its name on the signature pages
hereof, with a copy to the Agent; and,
(d) If to the Agent and the Swing Line Lender:
Fleet National Bank
1185 Avenue of the Americas
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇
Vice President
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
with a copy (other than in the case of Borrowing Notices
and reports and other documents delivered in compliance
with Article 5 hereof) to:
(e) ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP
▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
Telecopier No.: 212-238-3100
Any notice, request or communication hereunder shall be deemed to have been
given on the day on which it is delivered by hand or such commercial messenger
service to such party at its address specified above, or, if sent by mail, on
the third Business Day after the day deposited in the mail, postage prepaid, in
the case of telegraphic notice, when delivered to the telegraph company,
addressed as aforesaid or in the case of telecopy notice when sent by telecopy.
Any party may change the person or address to whom or which notices are to be
given hereunder, by notice duly
59
given hereunder; provided, however, that any such notice shall be deemed to have
been given hereunder only when actually received by the party to which it is
addressed.
SECTION 10.10 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 10.11 CONSTRUCTION; GOVERNING LAW.
The headings used in this Agreement and the table of contents are for
convenience only and shall not be deemed to constitute a part hereof. All uses
herein of the masculine gender or of singular or plural terms shall be deemed to
include uses of the feminine or neuter gender or plural or singular terms, as
the context may require. THIS AGREEMENT, THE NOTES, THE OTHER LOAN DOCUMENTS AND
ALL OTHER DOCUMENTS AND INSTRUMENTS EXECUTED AND DELIVERED IN CONNECTION
HEREWITH AND THEREWITH, SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 10.12 SEVERABILITY.
The provisions of this Agreement are severable, and if any clause or
provision hereof shall be held invalid or unenforceable in whole or in part in
any jurisdiction, then such invalidity or unenforceability shall affect only
such clause or provision, or part thereof, in such jurisdiction and shall not in
any manner affect such clause or provision in any other jurisdiction, or any
other clause or provision in this Agreement in any jurisdiction. Each of the
covenants, agreements and conditions contained in this Agreement is independent
and compliance by the Borrower with any of them shall not excuse non-compliance
by the Borrower with any other. The Borrower shall not take any action the
effect of which shall constitute a breach or violation of any provision of this
Agreement.
SECTION 10.13 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 the Banks and the Agent and
their respective 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 the Agent, and any purported assignment or delegation
without such consent shall be void.
SECTION 10.14 ASSIGNMENTS; PARTICIPATIONS.
(a) Each Bank may assign to one or more Eligible Assignees all
or a portion of its rights and obligations under this Agreement (including,
without limitation, all or a portion of it's A Commitment and/or its B
Commitment, the A Loans owing to it and/or the B Loans owing to it and the A
Note and/or B Note held by it); PROVIDED, HOWEVER, that (i) each such assignment
shall be of a uniform, and not a varying, percentage of the assigned rights and
obligations, (ii) except in the case of an assignment to a Person that,
immediately prior to such assignment, was a Bank or an assignment of all of a
Bank's rights and obligations under this
60
Agreement, the amount of the A Commitment and/or B Commitment of the assigning
Bank being assigned pursuant to each such assignment (determined as of the date
of the Assignment and Acceptance with respect to such assignment) shall in no
event be less than $5,000,000 in the aggregate and provided that in the event of
concurrent assignments to two or more Related Funds, all such concurrent
assignments (which in any event shall not be less than $2,500,000) shall be
aggregated in determining compliance with this requirement, and (iii) the
parties to each such assignment shall execute and deliver to the Administrative
Agent, for its acceptance and recording in the Register, an Assignment and
Acceptance, together with any Note or Notes subject to such assignment and a
processing and recordation fee of $3,500; provided, however, that no such fee
shall be payable in the case of an assignment to a Related Fund.
For purposes of this Section, "RELATED FUND" shall mean, with
respect to any Bank which is a fund that invests in loans, any other fund that
invests in loans and is controlled by the same investment advisor as such Bank
or by any affiliate that is controlled by such investment advisor.
(b) Upon such execution, delivery, acceptance and recording,
from and after the effective date specified in such Assignment and Acceptance,
(i) the assignee thereunder shall be a party hereto and, to the extent that
rights and obligations hereunder have been assigned to it pursuant to such
Assignment and Acceptance, have the rights and obligations of a Bank hereunder
and (y) the Bank assignor thereunder shall, to the extent that rights and
obligations hereunder have been assigned by it pursuant to such Assignment and
Acceptance, relinquish its rights and be released from its obligations under
this Agreement (and, in the case of an Assignment and Acceptance covering all or
the remaining portion of an assigning Bank's rights and obligations under this
Agreement, such Bank shall cease to be a party hereto).
(c) By executing and delivering an Assignment and Acceptance,
the Bank assignor thereunder and the assignee thereunder confirm to and agree
with each other and the other parties hereto as follows: (i) other than as
provided in such Assignment and Acceptance, such assigning Bank makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement or any other Loan Document or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of, or the perfection or
priority of any lien or security interest created or purported to be created
under or in connection with, this Agreement or any other Loan Document or any
other instrument or document furnished pursuant hereto or thereto; (ii) such
assigning Bank makes no representation or warranty and assumes no responsibility
with respect to the financial condition of the Borrower or the performance or
observance by the Borrower of any of its obligations under any Loan Document or
any other instrument or document furnished pursuant thereto; (iii) such assignee
confirms that it has received a copy of this Agreement, together with copies of
the Financial Statements and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
such Assignment and Acceptance; (iv) such assignee will, independently and
without reliance upon the Administrative Agent, such assigning Bank or any other
Bank and based on such documents and information as it shall deem appropriate at
the time, continue to make its own credit decisions in taking or not taking
action under this Agreement; (v) such assignee confirms that it is an Eligible
Assignee; (vi) such assignee appoints and authorizes the Agent to take such
action as agent on its behalf and to exercise such powers and discretion under
this Agreement and the other Loan
61
Documents as are delegated to the Agent by the terms hereof and thereof,
together with such powers and discretion as are reasonably incidental thereto;
and (vii) such assignee agrees that it will perform in accordance with their
terms all of the obligations which by the terms of this Agreement are required
to be performed by it as a Bank.
(d) The Agent shall maintain at its address referred to in
Section 10.9 a copy of each Assignment and Acceptance delivered to and accepted
by it and a register for the recordation of the names and addresses of the Banks
and the A Commitment and B Commitment of, and principal amount of the Loans
owing to, each Bank from time to time (the "REGISTER"). No such Assignment and
Acceptance shall be effective unless and until it is recorded in the Register.
The entries in the Register shall be conclusive and binding for all purposes,
absent manifest error, and the Borrower, the Agent and the Banks may treat each
Person whose name is recorded in the Register as a Bank hereunder for all
purposes of this Agreement. The Register shall be available for inspection by
the Borrower or any Bank at any reasonable time and from time to time upon
reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed
by an assigning Bank and an assignee, together with any Note or Notes subject to
such assignment and the appropriate processing and reconciliation fee, the Agent
shall, if such Assignment and Acceptance has been completed and is in
substantially the form of Exhibit B hereto, (i) accept such Assignment and
Acceptance, (ii) record the information contained therein in the Register and
(iii) give prompt notice thereof to the Borrower. In the case of any assignment
by a Bank, within five (5) Business Days after its receipt of such notice, the
Borrower, at its own expense, shall execute and deliver to the Agent in exchange
for the surrendered Note or Notes a new Note to the order of such Eligible
Assignee in an amount equal to the A Commitment and/or B Commitment assumed by
it pursuant to such Assignment and Acceptance and, if the assigning Bank has
retained a portion of it's A Commitment and/or B Commitment hereunder, a new
Note or Notes to the order of the assigning Bank in an amount equal to the A
Commitment and/or B Commitment retained by it hereunder. Such new Note or Notes
shall be in an aggregate principal amount equal to the aggregate principal
amount of such surrendered Note or Notes, shall be dated the effective date of
such Assignment and Acceptance and shall otherwise be in substantially the form
of Exhibit A-1 or A-2 hereto, as the case may be.
(f) Each Bank may sell participations to one or more Persons
(other than the Borrower or any of its Affiliates) in or to all or a portion of
its rights and obligations under this Agreement (including, without limitation,
all or a portion of its A Commitment and/or B Commitment, the Loans owing to it
and the Note or Notes, if any, held by it) at any time and from time to time and
without the consent of or notice to the Borrower; PROVIDED, HOWEVER, that (i)
such Bank's obligations under this Agreement (including, without limitation, its
A Commitment and/or B Commitment) shall remain unchanged, (ii) such Bank shall
remain solely responsible to the other parties hereto for the performance of
such obligations, (iii) such Bank shall remain the holder of any such Note or
Notes for all purposes of this Agreement, (iv) the Borrower, the Agent and the
other Banks shall continue to deal solely and directly with such Bank in
connection with such Bank's rights and obligations under this Agreement and (v)
no participant under any such participation shall have any right to approve any
amendment, waiver or other modification of any provision of this Agreement or
any other Loan Document, or any consent to any departure by the Borrower
therefrom,
62
except to the extent that such amendment, waiver, modification or consent would
reduce the principal of, or interest on, the Notes or any fees or other amounts
payable hereunder, in each case to the extent subject to such participation,
postpone any date fixed for any payment of principal of, or interest on, the
Notes or any fees or other amounts payable hereunder, in each case to the extent
subject to such participation.
(g) Any Bank may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
10.14, disclose to the assignee or participant or proposed assignee or
participant, any information relating to the Borrower furnished to such Bank by
or on behalf of the Borrower; PROVIDED, HOWEVER, that, prior to any such
disclosure, the assignee or participant or proposed assignee or participant
shall agree to preserve the confidentiality of any Confidential Information
received by it from such Bank.
(h) Any Bank may at any time grant, pledge or assign a
security interest in all or any portion of the Loans owing to it and the Note or
Notes held by it to secure obligations of such Bank, including any pledge or
assignment to secure obligations in favor of any Federal Reserve Bank in
accordance with Regulation A of the Board of Governors of the Federal Reserve
System, and this Section shall not apply to any such pledge or assignment of a
security interest, provided that no such pledge or assignment of a security
interest shall release a Bank from any of its obligations hereunder or
substitute any such pledgee or assignee for such Bank as a party hereto.
(i) Notwithstanding anything to the contrary contained herein,
any Bank (a "GRANTING BANK") may grant to a special purpose funding vehicle (a
"SPC"), identified as such in writing from time to time by the Granting Bank to
the Administrative Agent and the Borrower, the option to provide to the Borrower
all or any part of any Loan that such Granting Bank would otherwise be obligated
to make to the Borrower pursuant to this Agreement; PROVIDED THAT (i) nothing
herein shall constitute a commitment by any SPC to make any Loan, and (ii) if an
SPC elects not to exercise such option or otherwise fails to provide all or any
part of such Loan, the Granting Bank shall be obligated to make such Loan
pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall
utilize the A Commitment or B Commitment, as applicable, of the Granting Bank to
the same extent, and as if, such Loan were made by such Granting Bank. Each
party hereto hereby agrees that no SPC shall be liable for any indemnity or
similar payment obligation under this Agreement (all liability for which shall
remain with the Granting Bank). In furtherance of the foregoing, each party
hereto hereby agrees (which agreement shall survive the termination of this
Agreement) that, prior to the date that is one year and one day after the
payment in full of all outstanding commercial paper or other senior indebtedness
of any SPC, it will not institute against, or join any other person in
instituting against, such SPC any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings under the laws of the United States or any
State thereof. In addition, notwithstanding anything to the contrary contained
in this subsection 10.14(i) hereof, any SPC may (i) with notice to, but without
the prior written consent of, the Borrower and the Administrative Agent and
without paying any processing fee therefor, assign all or a portion of its
interests in any Loans to the Granting Bank or to any financial institutions
(consented to by the Borrower and Administrative Agent) providing liquidity
and/or credit support to or for the account of such SPC to support the funding
or maintenance of Loans and (ii) disclose on a confidential basis any non-public
information relating to its Loans to any rating agency, commercial paper dealer
or provider of any surety, guarantee or credit or liquidity enhancement to such
SPC. This section may
63
not be amended without the written consent of each Granting Lender, all or any
of whose Loans are being funded by an SPC at the time of such amendment. It is
understood and acknowledged that the Granting Lender shall for all purposes,
including, without limitation, the approval of any amendment or waiver of any
provision of any Loan Document or the obligation to pay any amount otherwise
payable by the Granting Lender under the Loan Documents, continue to be the Bank
of record hereunder.
SECTION 10.15 CONFIDENTIALITY.
Neither the Agent nor any Bank shall disclose any Confidential
Information to any Person without the consent of the Borrower, other than (a) to
the Agent or to the Agent's or such Bank's Affiliates and their officers,
directors, employees and agents and to actual or prospective Eligible Assignees
and participants, and then only on a confidential basis, (b) to any direct or
indirect contractual counterparty in swap agreement or such contractual
counterparty's professional advisor (so long as such contractual counterparty or
such professional advisor agrees to be bound by the provisions of this Section
10.15), (c) as required by any law, rule or regulation or judicial process and
(d) as requested or required by any state, federal or foreign authority or
examiner regulating banks or banking.
[Signature Pages to Follow]
64
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed on the date first above written.
NATIONAL CONSUMER COOPERATIVE
BANK, D/B/A NATIONAL COOPERATIVE BANK
BY:
--------------------------------------
NAME:
---------------------------------
TITLE:
--------------------------------
A COMMITMENT FLEET NATIONAL BANK,
------------ AS ADMINISTRATIVE AGENT AND AS A BANK,
AND AS SWING LINE LENDER
$27,500,000
B COMMITMENT BY:
------------ -------------------------------------
NAME: ▇▇▇▇▇▇ ▇. ▇▇▇▇
$27,500,000 TITLE: VICE PRESIDENT
LENDING OFFICE FOR PRIME RATE
LOANS AND LIBOR LOANS AND
ADDRESS FOR NOTICES:
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
ATTN: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇
VICE PRESIDENT
TELEPHONE NO.: ▇▇▇-▇▇▇-▇▇▇▇
TELECOPIER NO.: ▇▇▇-▇▇▇-▇▇▇▇
A COMMITMENT CREDIT SUISSE FIRST BOSTON
------------ CAYMAN ISLANDS BRANCH
$20,000,000
BY:
--------------------------------------
NAME:
---------------------------------
TITLE:
---------------------------------
B COMMITMENT BY:
------------ --------------------------------------
NAME:
$20,000,000 ---------------------------------
TITLE:
---------------------------------
LENDING OFFICE FOR PRIME RATE
LOANS AND LIBOR LOANS AND
ADDRESS FOR NOTICES:
CREDIT SUISSE FIRST BOSTON
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇/▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
ATTN: ▇▇. ▇▇▇ ▇▇▇▇▇
TELEPHONE NO.: ▇▇▇-▇▇▇-▇▇▇▇
TELECOPIER NO.: ▇▇▇-▇▇▇-▇▇▇▇
A COMMITMENT COOPERATIEVE CENTRALE
------------ RAIFFEISEN-BOERENLEENBANK
B.A., "RABOBANK INTERNATIONAL",
$10,000,000 NEW YORK BRANCH
B COMMITMENT BY:
------------ --------------------------------------
NAME:
$10,000,000 ---------------------------------
TITLE:
--------------------------------
BY:
--------------------------------------
NAME:
------------------------------------
TITLE:
-----------------------------------
LENDING OFFICE FOR PRIME RATE
LOANS AND LIBOR LOANS AND
ADDRESS FOR NOTICES:
RABOBANK NEDERLAND, NEW YORK BRANCH
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇/▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
ATTN: ▇▇▇▇▇▇ ▇▇▇▇▇▇
EXECUTIVE DIRECTOR
TELEPHONE NO.: ▇▇▇-▇▇▇-▇▇▇▇
TELECOPIER NO.: ▇▇▇-▇▇▇-▇▇▇▇
WITH A COPY TO:
C/O RABO SUPPORT SERVICES
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
ATTENTION: CORPORATE SERVICES
TELEPHONE NO.: ▇▇▇-▇▇▇-▇▇▇▇
TELECOPIER NO.: ▇▇▇-▇▇▇-▇▇▇▇
A COMMITMENT PNC BANK, NATIONAL ASSOCIATION
-----------
$17,500,000 BY:
--------------------------------------
NAME:
---------------------------------
TITLE:
--------------------------------
B COMMITMENT LENDING OFFICE FOR PRIME RATE
------------ LOANS AND LIBOR LOANS AND
ADDRESS FOR NOTICES:
$17,500,000
PNC BANK, NATIONAL ASSOCIATION
PNC FIRSTSIDE CENTER
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
ATTN.: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
TELEPHONE NO.: ▇▇▇-▇▇▇-▇▇▇▇
TELECOPIER NO.: ▇▇▇-▇▇▇-▇▇▇▇
A COMMITMENT WACHOVIA BANK, N.A.,
------------ AS DOCUMENTATION AGENT AND AS A BANK
$22,500,000 BY:
--------------------------------------
NAME:
---------------------------------
TITLE:
--------------------------------
B COMMITMENT LENDING OFFICE FOR PRIME RATE
------------ LOANS AND LIBOR LOANS AND
ADDRESS FOR NOTICES:
$22,500,000
WACHOVIA BANK, N.A.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
ATTN.: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
SENIOR VICE PRESIDENT
TELEPHONE NO.: ▇▇▇-▇▇▇-▇▇▇▇
TELECOPIER NO.: ▇▇▇-▇▇▇-▇▇▇▇
A COMMITMENT ALLFIRST BANK
------------
$12,500,000 BY:
--------------------------------------
NAME: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
TITLE: VICE PRESIDENT
B COMMITMENT LENDING OFFICE FOR PRIME RATE LOANS
------------ AND LIBOR LOANS AND
ADDRESS FOR NOTICES:
$12,500,000
ALLFIRST BANK
FINANCIAL INSTITUTIONS DIVISION
▇.▇. ▇▇▇ ▇▇▇▇ (101-710)
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇/▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
ATTN: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
VICE PRESIDENT
TELEPHONE NO.: ▇▇▇-▇▇▇-▇▇▇▇
TELECOPIER NO.: ▇▇▇-▇▇▇-▇▇▇▇
A COMMITMENT UNION BANK OF CALIFORNIA, N.A.
------------
$10,000,000 BY
--------------------------------------
NAME:
---------------------------------
TITLE:
--------------------------------
B COMMITMENT LENDING OFFICE FOR PRIME RATE LOANS
------------ AND LIBOR LOANS AND
ADDRESS FOR NOTICES:
$10,000,000
UNION BANK OF CALIFORNIA, N.A.
▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇/▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
ATTN: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
VICE PRESIDENT
TELEPHONE NO.: ▇▇▇-▇▇▇-▇▇▇▇
TELECOPIER NO.: ▇▇▇-▇▇▇-▇▇▇▇
A COMMITMENT SUNTRUST BANK, AS SYNDICATION AGENT
------------ AND AS A BANK
$22,500,000 BY:
---------------------------------------
NAME:
---------------------------------
TITLE:
--------------------------------
B COMMITMENT
------------
$22,500,000 LENDING OFFICE FOR PRIME RATE
LOANS AND LIBOR LOANS AND
ADDRESS FOR NOTICES:
SUNTRUST BANK
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
ATTN.: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
VICE PRESIDENT
TELEPHONE NO.: ▇▇▇-▇▇▇-▇▇▇▇
TELECOPIER NO.: ▇▇▇-▇▇▇-▇▇▇▇
A COMMITMENT ISRAEL DISCOUNT BANK OF NEW YORK
------------
$5,000,000 BY:
--------------------------------------
NAME: ▇▇▇▇ ▇▇▇▇▇▇
TITLE: SENIOR VICE PRESIDENT
B COMMITMENT
------------
$5,000,000 BY:
--------------------------------------
NAME: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
TITLE: VICE PRESIDENT
LENDING OFFICE FOR PRIME RATE
LOANS AND LIBOR LOANS AND
ADDRESS FOR NOTICES:
ISRAEL DISCOUNT BANK OF NEW YORK
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
ATTN.: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
TELEPHONE NO.: ▇▇▇-▇▇▇-▇▇▇▇
TELECOPIER NO.: ▇▇▇-▇▇▇-▇▇▇▇
A COMMITMENT CREDIT LYONNAIS NEW YORK BRANCH
------------
$17,500,000 BY:
--------------------------------------
NAME: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
TITLE: SENIOR VICE PRESIDENT
B COMMITMENT
------------
$17,500,000
LENDING OFFICE FOR PRIME RATE
LOANS AND LIBOR LOANS AND
ADDRESS FOR NOTICES:
CREDIT LYONNAIS NEW YORK BRANCH
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
13TH FLOOR/FINANCIAL INSTITUTIONS
DEPARTMENT
NEW YORK, NEW YORK 10019
ATTN: ▇▇▇▇ ▇▇▇▇▇▇▇
TELEPHONE NO.: ▇▇▇-▇▇▇-▇▇▇▇
TELECOPIER NO.: ▇▇▇-▇▇▇-▇▇▇▇
A COMMITMENT KBC BANK N.V.
------------
$10,000,000 BY:
--------------------------------------
NAME:
---------------------------------
TITLE:
--------------------------------
B COMMITMENT BY:
------------ --------------------------------------
NAME:
$10,000,000 ---------------------------------
TITLE:
--------------------------------
LENDING OFFICE FOR PRIME RATE
LOANS AND LIBOR LOANS AND
ADDRESS FOR NOTICES:
KBC BANK N.V.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
ATTN: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
ASSISTANT VICE PRESIDENT
TELEPHONE NO.: ▇▇▇-▇▇▇-▇▇▇▇
TELECOPIER NO.: ▇▇▇-▇▇▇-▇▇▇▇
EXHIBITS AND SCHEDULES
EXHIBITS
--------
A-1 Form of A Note
A-2 Form of B Note
A-3 Form of Swing Line Note
B Form of Assignment and Acceptance
SCHEDULES
---------
3.1 States of Incorporation and Qualification, and Capitalization and
Ownership of Stock of, Borrower
3.2 Consents, Waivers, Approvals; Violation of Agreements
3.5 Permitted Security Interests, Liens and Encumbrances
3.6 Judgments, Actions, Proceedings
3.7 Compliance with Laws, Regulations, Agreements
3.8 Burdensome Documents
3.9 Financial Statements
3.10 Taxes
3.13 Name Changes, Mergers, Acquisitions
3.15 Employee Grievances
3.17 Employee Benefit Plans
7.1 Permitted Indebtedness and Guaranties
7.13 Transactions with Affiliates
EXHIBIT A-1
TO FOURTH AMENDED AND RESTATED LOAN AGREEMENT
BY AND AMONG
NATIONAL CONSUMER COOPERATIVE BANK
AND
CERTAIN BANKS NAMED THEREIN
AND
FLEET NATIONAL BANK, AS ADMINISTRATIVE AGENT FOR THE BANKS
FORM OF A NOTE
[A Commitment Amount] Due February 11, 2005
FOR VALUE RECEIVED, NATIONAL CONSUMER COOPERATIVE BANK D/B/A NATIONAL
COOPERATIVE BANK, (the "BORROWER"), hereby promises to pay to the order of [ ]
(the "BANK") by payment to the Agent for the account of the Bank the principal
sum of [amount of A Commitment] ($__________) Dollars (or such lesser amount as
shall equal the aggregate unpaid principal amount of the A 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 February 11, 2005.
The Borrower further promises to pay to the order of the Bank by
payment to the Agent for the account of the Bank interest on the unpaid
principal amount of each Loan from the date such 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 A Note (or on any continuation thereof) the amount, type, due
date and interest rate of each A 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 A 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 Loans. Such notations shall be deemed correct,
absent manifest error.
This A Note is one of the Notes referred to in the Fourth Amended and
Restated Loan Agreement (the "LOAN AGREEMENT") dated as of February 12, 2002,
among the Borrower, the Banks and Fleet National Bank, as Administrative Agent
for the Banks and evidences the A 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 A 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 A Note.
Presentment for payment, notice of dishonor, protest and notice of
protest are hereby waived.
This A Note has been executed and delivered this 12th day of February,
2002 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:
--------------------------------------
NAME:
---------------------------------
TITLE:
--------------------------------
2
SCHEDULE TO A NOTE
MADE BY NATIONAL CONSUMER COOPERATIVE BANK
IN FAVOR OF _____________________
This Note evidences the 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 prepayments
set forth below:
PRINCIPAL INTEREST AMOUNT OF
DATE MADE AMOUNT OF TYPE OF DUE DATE RATE ON PAYMENT OR BALANCE NOTATION
OR CONVERTED LOAN LOAN OF LOAN LOAN PREPAYMENT OUTSTANDING MADE BY
------------ --------- ------- -------- -------- ---------- ------------ --------
EXHIBIT A-2
TO FOURTH AMENDED AND RESTATED LOAN AGREEMENT
BY AND AMONG
NATIONAL CONSUMER COOPERATIVE BANK
AND
CERTAIN BANKS NAMED THEREIN
AND
FLEET NATIONAL BANK, AS ADMINISTRATIVE AGENT FOR THE BANKS
FORM OF B NOTE
[B Commitment Amount] Due February 11, 2003
FOR VALUE RECEIVED, NATIONAL CONSUMER COOPERATIVE BANK D/B/A NATIONAL
COOPERATIVE BANK (the "BORROWER"), hereby promises to pay to the order of [ ]
(the "BANK") by payment to the Agent for the account of the Bank the principal
sum of [amount of B Commitment] ($__________) Dollars (or such lesser amount as
shall equal the aggregate unpaid principal amount of the B 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 February 11, 2003.
The Borrower further promises to pay to the order of the Bank by
payment to the Agent for the account of the Bank interest on the unpaid
principal amount of each Loan from the date such 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 B Note (or on any continuation thereof) the amount, type, due
date and interest rate of each B 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 B 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 Loans. Such notations shall be deemed correct,
absent manifest error.
This B Note is one of the Notes referred to in the Fourth Amended and
Restated Loan Agreement (the "LOAN AGREEMENT") dated as of February 12, 2002
among the Borrower, the Banks, and Fleet National Bank, as Administrative Agent
for the Banks and evidences the B 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 B 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 B Note.
Presentment for payment, notice of dishonor, protest and notice of
protest are hereby waived.
This B Note has been executed and delivered this 12th day of February,
2002 in New York, New York, and shall be construed in accordance with and
governed by the laws of the State of New York.
NATIONAL CONSUMER COOPERATIVE
BANK D/B/A NATIONAL COOPERATIVE BANK
BY:
-----------------------------------
NAME:
------------------------------
TITLE:
-----------------------------
2
SCHEDULE TO B NOTE
MADE BY NATIONAL CONSUMER COOPERATIVE BANK
IN FAVOR OF _____________________
This Note evidences the 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 prepayments
set forth below:
PRINCIPAL INTEREST AMOUNT OF
DATE MADE AMOUNT OF TYPE OF DUE DATE RATE ON PAYMENT OR BALANCE NOTATION
OR CONVERTED LOAN LOAN OF LOAN LOAN PREPAYMENT OUTSTANDING MADE BY
------------ --------- ------- -------- -------- ---------- ------------ --------
EXHIBIT A-3
TO FOURTH AMENDED AND RESTATED LOAN AGREEMENT
BY AND AMONG
NATIONAL CONSUMER COOPERATIVE BANK
AND
CERTAIN BANKS NAMED THEREIN
AND
FLEET NATIONAL BANK, AS ADMINISTRATIVE AGENT FOR THE BANKS
FORM OF SWING LINE NOTE
$20,000,000 DUE FEBRUARY 11, 2003
FOR VALUE RECEIVED, NATIONAL CONSUMER COOPERATIVE BANK D/B/A NATIONAL
COOPERATIVE BANK (the "BORROWER"), hereby promises to pay to the order of FLEET
NATIONAL BANK (the "BANK") by payment to the Bank the principal sum of TWENTY
MILLION DOLLARS ($20,000,000) (or such lesser amount as shall equal the
aggregate unpaid principal amount of the Swing Line 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 February 11, 2003.
The Borrower further promises to pay to the order of the Bank by
payment to the Bank interest on the unpaid principal amount of each Swing Line
Loan from the date such Swing Line 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 Swing Line Note (or on any continuation thereof) the amount, due
date and interest rate of each Swing Line Loan made by the Bank under the Loan
Agreement and the amount of each payment of principal and the amount of each
payment of interest of each such Swing Line 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 Swing Line Loans. Such notations shall be
deemed correct, absent manifest error.
This Swing Line Note is the Swing Line Note referred to in the Fourth
Amended and Restated Loan Agreement (the "LOAN AGREEMENT") dated as of February
12, 2002 among the Borrower, the Banks and Fleet National Bank, as
Administrative Agent for the Banks and evidences the Swing Line Loans made by
the Bank thereunder. Capitalized terms used in this Swing Line 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 agrees to pay costs of collection and reasonable
attorneys' fees in case default occurs in the payment of this Swing Line Note.
Presentment for payment, notice of dishonor, protest and notice of
protest are hereby waived.
This Swing Line Note has been executed and delivered this 12th day of
February, 2002 in New York, New York, and shall be construed in accordance with
and governed by the laws of the State of New York.
NATIONAL CONSUMER COOPERATIVE
BANK D/B/A NATIONAL COOPERATIVE BANK
BY:
--------------------------------------
NAME:
---------------------------------
TITLE:
--------------------------------
2
SCHEDULE TO SWING LINE NOTE
MADE BY
NATIONAL CONSUMER COOPERATIVE BANK
IN FAVOR OF FLEET NATIONAL BANK
This Swing Line Note evidences the Swing Line Loans made under the
within described Agreement, in the principal amounts, and on the dates set forth
below, subject to the payments set forth below:
PRINCIPAL INTEREST
AMOUNT OF DUE DATE RATE ON AMOUNT OF BALANCE NOTATION
DATE MADE LOAN OF LOAN LOAN PAYMENT OUTSTANDING MADE BY
------------ --------- -------- -------- ---------- ------------ --------
EXHIBIT B
TO FOURTH AMENDED AND RESTATED LOAN AGREEMENT
BY AND AMONG
NATIONAL CONSUMER COOPERATIVE BANK
AND
CERTAIN BANKS NAMED THEREIN
AND
FLEET NATIONAL BANK, AS ADMINISTRATIVE AGENT FOR THE BANKS
FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT
Reference is made to the Fourth Amended and Restated Loan Agreement
dated as of February 12, 2002 (as amended, supplemented, restated or otherwise
modified from time to time, the "LOAN AGREEMENT"; the terms defined therein
being used herein as therein defined) among NATIONAL CONSUMER COOPERATIVE BANK
D/B/A NATIONAL COOPERATIVE BANK, a corporation chartered by Act of Congress of
the United States (the "BORROWER"), the Banks party thereto and Fleet National
Bank, as Swing Line Lender and as Agent for the Banks (the "AGENT").
The "ASSIGNOR" and the "ASSIGNEE" referred to on Schedule I hereto
agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and the
Assignee hereby purchases and assumes from the Assignor, an interest in and
to the Assignor's rights and obligations under the Loan Agreement as of the
date hereof equal to the percentage interest specified on Schedule I hereto
of all outstanding rights and obligations under the Loan Agreement as
specified on Schedule I hereto. After giving effect to such sale and
assignment, the Assignee's _____________(1) Commitments and the amount of the
____________(2) Loans owing to the Assignee will be as set forth on Schedule
I hereto.
2. The Assignor (i) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim; (ii) makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Loan Documents
or the execution, legality, validity, enforceability, genuineness, sufficiency
or value of, or the perfection or priority of any lien or security interest
created or purported to be created under or in connection with, the Loan
Documents or any other instrument, agreement or document furnished pursuant
thereto; (iii) makes no representation or warranty and assumes no responsibility
with respect to the financial condition of the Borrower or the performance or
observance by the Borrower of any of its obligations under any Loan Document or
any other instrument, agreement or document furnished
---------------------
(1) Specify A Commitment or the B Commitment here.
(2) Specify A Loans or B Loans here.
pursuant thereto; and (iv) attaches the ____________(3) Note or Notes held by
the Assignor and requests that the Agent exchange such Note or Notes for a
new _______________(3) Note or Notes payable to the order of the Assignee in
an amount equal to the _______________(1) Commitments assumed by the Assignee
pursuant hereto and a new _______________(3) Note or Notes payable to the
order of the Assignor in an amount equal to the _______________(1)
Commitments retained by the Assignor under the Loan Agreement as specified on
Schedule I hereto.
3. The Assignee (i) confirms that it has received a copy of the Loan
Agreement, together with copies of the Financial Statements referred to therein
and such other documents and information as it has deemed appropriate to make
its own credit analysis and decision to enter into this Assignment and
Acceptance; (ii) agrees that it will, independently and without reliance upon
the Agent, the Assignor or any other Bank and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the Loan Agreement; (iii)
confirms that it is an Eligible Assignee; (iv) appoints and authorizes the Agent
to take such action as agent on its behalf and to exercise such powers and
discretion under the Loan Documents as are delegated to the Agent by the terms
thereof, together with such powers and discretion as are reasonably incidental
thereto; (v) agrees that it will perform in accordance with their terms all of
the obligations that by the terms of the Loan Agreement and the other Loan
Documents are required to be performed by it as a Bank; and (vi) attaches any
U.S. Internal Revenue Service forms or other forms required under the Loan
Agreement.
4. Following the execution of this Assignment and Acceptance, it will
be delivered to the Agent, together with the processing and recordation fee
specified in the Loan Agreement, for acceptance and recording by the Agent. The
effective date for this Assignment and Acceptance (the "EFFECTIVE DATE") shall
be the date of acceptance hereof by the Agent, unless otherwise specified on
Schedule I hereto.
5. Upon such acceptance and recording by the Agent, as of the Effective
Date, (i) the Assignee shall be a party to the Loan Agreement and, to the extent
provided in this Assignment and Acceptance, have the rights and obligations of a
Lender Party thereunder and (ii) the Assignor shall, to the extent provided in
this Assignment and Acceptance, relinquish its rights and be released from its
obligations under the Loan Agreement.
6. Upon such acceptance and recording by the Agent, from and after the
Effective Date, the Agent shall make all payments under the Loan Agreement and
the _______________(3) Notes in respect of the interest assigned hereby
(including, without limitation, all payments of principal, interest and facility
fees with respect thereto) to the Assignee. The Assignor and Assignee shall make
all appropriate adjustments in payments under the Loan Agreement and the
_______________(3) Notes for periods prior to the Effective Date directly
between themselves.
7. This Assignment and Acceptance shall be governed by, and construed
in accordance with, the laws of the State of New York (without giving effect to
its conflicts of law principles).
---------------------
(3) Specify A Note or Notes or B Note or Notes or Notes here.
2
8. This Assignment and Acceptance may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of Schedule I to this Assignment and Acceptance by telecopier shall
be as effective as delivery of a manually executed counterpart of this
Assignment and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused Schedule
I to this Assignment and Acceptance to be executed by their officers thereunto
duly authorized as of the date specified thereon.
[See Schedule I attached hereto]
3
SCHEDULE I
TO
ASSIGNMENT AND ACCEPTANCE
As to the _______________(4) Commitment in respect of which an interest is
being assigned:
Percentage interest assigned: __________%
Assignee's _______________(5) Commitment: $__________
Aggregate outstanding principal amount
of _______________(6) Loans assigned: $__________
Principal amount of _______________(7)
Note payable to Assignee: $__________
Principal amount of _______________(4)
Note payable to Assignor: $__________
Effective Date (if other than date of
acceptance by Agent): __________, _____
[NAME OF ASSIGNOR], AS ASSIGNOR
By:
-----------------------------------
Title:
--------------------------------
Dated:
--------------------------------
---------------------
(4) Specify A Commitment or the B Commitment here.
(5) Specify A Commitment or the B Commitment here.
(6) Specify A Loans or the B Loans here
(7) Specify A Note or Notes or the B Note or Notes here.
[NAME OF ASSIGNEE], AS ASSIGNEE
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Dated:
---------------------------------
DOMESTIC LENDING OFFICE:
---------------------------------------
---------------------------------------
---------------------------------------
EURODOLLAR LENDING OFFICE:
---------------------------------------
---------------------------------------
---------------------------------------
ACCEPTED THIS ___ DAY OF _________, ____
FLEET NATIONAL BANK, AS AGENT
By:
--------------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
[CONSENTED TO THIS ___ DAY OF _______, ___
NATIONAL CONSUMER COOPERATIVE
BANK
D/B/A NATIONAL COOPERATIVE BANK
By:
--------------------------------------
Name:
-----------------------------------
Title: ](8)
-----------------------------------
---------------------
(8) The Borrower may consent to an assignment only if no Event of Default is
then existing and continuing.
SCHEDULE 3.1
TO FOURTH AMENDED AND RESTATED LOAN AGREEMENT
BY AND AMONG
NATIONAL CONSUMER COOPERATIVE BANK
AND
CERTAIN BANKS NAMED THEREIN
AND
FLEET NATIONAL BANK, AS ADMINISTRATIVE AGENT FOR THE BANKS
STATES OF INCORPORATION AND QUALIFICATION,
AND CAPITALIZATION AND OWNERSHIP OF STOCK
OF BORROWER AND SUBSIDIARIES.
NAME JURISDICTION OF INCORPORATION CAPITALIZATION
----------------------------------------------- ------------------------------------------ -----------------------------------------
National Consumer Cooperative Bank, d/b/a U.S. Congress Classes B, C and D shares in accordance
National Cooperative Bank 12 U.S.C. Section 3001-3051 with 12 U.S.C. Section 3014
----------------------------------------------------------------------------------------------------------------------------------
NCB Retail Finance Corporation* Delaware Authorized
Common: 1,000
Outstanding
Common: 1,000
----------------------------------------------------------------------------------------------------------------------------------
NCB Capital Delaware (Qualified in the District of Authorized Class A
Corporation Columbia, New York, Illinois, Preferred: 1,000
California, and New Jersey) Outstanding Class A
Preferred: 955
Authorized Class B
Preferred: 100
Outstanding Class B
Preferred: 50
Authorized Class C
Preferred: 1,000
Outstanding Class C
Preferred -0-
Authorized
Common: 10,000
Outstanding
Common: 10,000
----------------------------------------------------------------------------------------------------------------------------------
NCB Financial Corporation Delaware Authorized
Common: 1,000
Outstanding
Common: 1,000
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
NCB, FSB U.S. (Office of Thrift Supervision) Authorized
Common: 1,000
Outstanding
Common: 1,000
----------------------------------------------------------------------------------------------------------------------------------
NCB I, Inc.* Delaware Authorized
Common: 1000
Outstanding
Common: 1000
----------------------------------------------------------------------------------------------------------------------------------
NCB Insurance Brokers, Inc. New York Authorized
(to be dissolved) Common: 1000
Outstanding
Common: 100
----------------------------------------------------------------------------------------------------------------------------------
NCB NetPlatform, Inc. Delaware Authorized
Common: 10,000
Outstanding
Common: 10,000
----------------------------------------------------------------------------------------------------------------------------------
NCB Franchise Services, Inc. Delaware Authorized
Common: 10,000
Outstanding
Common: 1,000
----------------------------------------------------------------------------------------------------------------------------------
NCB Funding Corporation* Delaware Authorized
Common: 1,000
Outstanding
Common: 1,000
----------------------------------------------------------------------------------------------------------------------------------
EOS Financial Group, Inc. Delaware (Qualified in District of Authorized
Columbia and California) Common: 10,000
Outstanding
Common: 1,000
----------------------------------------------------------------------------------------------------------------------------------
Capital Avenue, Inc. Delaware Authorized
Common: 8,000,000
Outstanding:
Common: 1,000,000
Borrower 610,000
Minority Interest: 390,000
Authorized
Preferred: 2,000,000
Outstanding
Preferred: -0-
----------------------------------------------------------------------------------------------------------------------------------
---------------------
*Special Purpose Corporation
2
SCHEDULE 3.2
TO FOURTH AMENDED AND RESTATED LOAN AGREEMENT
BY AND AMONG
NATIONAL CONSUMER COOPERATIVE BANK
AND
CERTAIN BANKS NAMED THEREIN
AND
FLEET NATIONAL BANK, AS ADMINISTRATIVE AGENT FOR THE BANKS
--------------------------
CONSENTS, WAIVERS, APPROVALS,
VIOLATIONS OF AGREEMENTS
--------------------------
NONE
SCHEDULE 3.5
TO FOURTH AMENDED AND RESTATED LOAN AGREEMENT
BY AND AMONG
NATIONAL CONSUMER COOPERATIVE BANK
AND
CERTAIN BANKS NAMED THEREIN
AND
FLEET NATIONAL BANK, AS ADMINISTRATIVE AGENT FOR THE BANKS
PERMITTED SECURITY INTERESTS,
LIENS AND ENCUMBRANCES
NCB, FSB has under pledge to the Federal Home Loan Bank of Cincinnati ("FHLBC")
its mortgage loan portfolio under a Blanket Agreement for Advances and Security
Agreement which allows a blanket lien to secure borrowings from FHLBC.
The Borrower extends lines of credit to NCB Capital, secured by all assets of
NCB Capital pursuant to certain Business Loan/Security Agreements.
The Borrower, NCB Capital and special purpose corporation subsidiaries of the
Borrower sell mortgage loans, ESOP loans and other loans from its portfolio in
the ordinary course of business, structured either as an Asset Securitization or
a sale of whole loans. The SPV or other purchaser typically provides for an
alternative security interest and files a financing statement covering such
loans in order to protect itself against a subsequent determination that such
sale was not a sale but rather a loan.
SCHEDULE 3.6
TO FOURTH AMENDED AND RESTATED LOAN AGREEMENT
BY AND AMONG
NATIONAL CONSUMER COOPERATIVE BANK
AND
CERTAIN BANKS NAMED THEREIN
AND
FLEET NATIONAL BANK, AS ADMINISTRATIVE AGENT FOR THE BANKS
Pending Actions:
NCB Capital was served in September, 2001, with a Cross Complaint in
OCEAN TOWERS HOUSING CORPORATION ["OTHC"] V. L.E. WATERS CONSTRUCTION
CORPORATION ["WATERS"], ET AL., CASE NO. SC067826, in the Superior Court for Los
Angeles County. NCB Capital had made a construction loan to OTHC for a major
renovation project. OTHC subsequently terminated its construction management
agreement with Waters and a related entity and then sued them for fraud,
negligent misrepresentation, breach of contract and other claims. The defendants
then cross-claimed against NCB Capital , Credit Suisse First Boston (a
participant in the NCB Capital loan) and others, including OTHC. The claims
against NCB Capital were for interference with contract and inducing breach of
contract, claiming damages of $326,989.99, plus punitive damages. NCB Capital
filed a demurrer for dismissal of those claims against it, and that demurrer was
sustained by the Court in mid-January, subject to leave for the
Cross-Complainants to amend their Cross Complaint within 20 days, which they
have not yet done. The entire action is now scheduled for mediation beginning
February 7, 2002.
Probable Claims:
None.
SCHEDULE 3.7
TO FOURTH AMENDED AND RESTATED LOAN AGREEMENT
BY AND AMONG
NATIONAL CONSUMER COOPERATIVE BANK
AND
CERTAIN BANKS NAMED THEREIN
AND
FLEET NATIONAL BANK, AS ADMINISTRATIVE AGENT FOR THE BANKS
--------------------------
COMPLIANCE WITH LAWS, REGULATIONS AND AGREEMENTS
--------------------------
NONE
SCHEDULE 3.8
TO FOURTH AMENDED AND RESTATED LOAN AGREEMENT
BY AND AMONG
NATIONAL CONSUMER COOPERATIVE BANK
AND
CERTAIN BANKS NAMED THEREIN
AND
FLEET NATIONAL BANK, AS ADMINISTRATIVE AGENT FOR THE BANKS
--------------------------
BURDENSOME DOCUMENTS
--------------------------
NONE
SCHEDULE 3.9
TO FOURTH AMENDED AND RESTATED LOAN AGREEMENT
BY AND AMONG
NATIONAL CONSUMER COOPERATIVE BANK
AND
CERTAIN BANKS NAMED THEREIN
AND
FLEET NATIONAL BANK, AS ADMINISTRATIVE AGENT FOR THE BANKS
--------------------------
FINANCIAL STATEMENTS
NATIONAL COOPERATIVE BANK
RESTATEMENT OF 2001 QUARTERLY EARNINGS
As a result of the Borrower's internal year-end financial review, it determined
that certain expenses related to two separate accounting processes identified
during the fourth quarter should have been recognized during previous quarters
in 2001. As a result, the Borrower has determined that it should restate the
earnings for the affected quarters. Therefore, earnings for the nine months
ended September 30, 2001 will be restated from $9,706,539 to approximately
$8,423,069. For the year 2001, the Borrower's net income is expected to be
approximately $12.4 million, which is in line with the Borrower's earnings
outlook developed by the Borrower in the third quarter of the year. In
connection with the year-end closing process, including the continued review of
these issues, the Borrower will finalize its numbers and will file a Form 8-K
when the process is completed to reflect these adjustments and, though not
expected, any additional items which may be required.
The two accounting processes which led to the restatement are unrelated to one
another. The first relates to the amortization of "interest-only receivables"
(IOs) which the Borrower creates as a result of its asset securitization
process. During 2001, two of the collateral pools which support two different
IOs experienced accelerated amortization. In structuring the sale of the
collateral, the Borrower assumed that the collateral would prepay at its
earliest opportunity and valued the IO accordingly at the time of the sales in
1995 and 1996. During the first quarter of 2001, the collateral in the pools did
begin to amortize as originally modeled. The Borrower began receiving prepayment
penalties fees on the loans and recognized the fees over the course of the year.
Unfortunately, the Borrower did not accelerate the amortization of the related
IOs to occur concurrently with its receipt of the prepayment fees.
The second adjustment relates to the treatment of deferred fees and deferred
costs as required by SFAS 91. Under this accounting pronouncement, the Borrower
is required to defer origination fees and related origination costs and amortize
them over the life of a loan. During its year-end review, the Borrower
determined that origination costs related to loans which it originated for sale
had been deferred as required but had not been recognized as required at the
time of the sale. In addition, it was determined that the origination costs
related to certain loans originated to be held in portfolio had been deferred
but the amortization process was not begun. As a result, the Borrower had to
true-up the amortization of the deferred costs because of these two errors.
SCHEDULE 3.10
TO FOURTH AMENDED AND RESTATED LOAN AGREEMENT
BY AND AMONG
NATIONAL CONSUMER COOPERATIVE BANK
AND
CERTAIN BANKS NAMED THEREIN
AND
FLEET NATIONAL BANK, AS ADMINISTRATIVE AGENT FOR THE BANKS
--------------------------
TAXES
--------------------------
The Borrower and NCB Capital for a number of years have had agreements
with Supra Products ("SUPRA") for the purchase of lockboxes for lease to members
of local realtor associations, and leases originated by NCB Capital typically
are assigned to Borrower after a seasoning period. State and local sales and use
taxes were owed, whether or not the Borrower originated a lease, because the tax
liability is imposed upon the lessee rather than the lessor, and taxes were
collected from lessees for deposit in a concentration account to be remitted by
either Borrower or Supra to the appropriate taxing authorities. Responsibility
for remitting the taxes was assigned either to Borrower or Supra during
different periods. In 1997 or 1998 through 2001 the responsibility was assigned
to Borrower, but a failure of communication caused Borrower not to be aware of
that assignment until the taxes were delinquent. Funds in the concentration
account are being used for the tax liabilities, but Borrower estimates that
interest and penalties may result in a liability of Borrower in a maximum amount
of $400,000. The uncertainty as to the amount arises out of the fact that
Borrower has been able to negotiate waivers of penalties and reductions in
interest in some jurisdictions, and negotiations have not begun in a substantial
number of the 36 states and some municipalities involved. That $400,000
liability will be accrued in Borrower's fiscal year 2001 consolidated financial
statements but was not accrued as of the date of the September 30, 2001,
Financial Statements.
SCHEDULE 3.13
TO FOURTH AMENDED AND RESTATED LOAN AGREEMENT
BY AND AMONG
NATIONAL CONSUMER COOPERATIVE BANK
AND
CERTAIN BANKS NAMED THEREIN
AND
FLEET NATIONAL BANK, AS ADMINISTRATIVE AGENT FOR THE BANKS
--------------------------
NAME CHANGES, MERGERS, ACQUISITIONS
--------------------------
1. Effective October 1, 2001, NCB Savings Bank, FSB, changed its name to
NCB, FSB..
2. On October 9, 1997, NCB Mortgage Corporation filed an amendment to its
Certificate of Incorporation to change its name to NCB Capital
Corporation in order better to reflect the scope of its operations.
3. On or about June 14, 2001, NCB Franchise Services, Inc., a wholly-owned
Subsidiary of NCB NetPlatform, Inc. (which is a wholly-owned Subsidiary
of the Borrower), purchased substantially all of the assets of Frandata
Corporation.
SCHEDULE 3.15
TO FOURTH AMENDED AND RESTATED LOAN AGREEMENT
BY AND AMONG
NATIONAL CONSUMER COOPERATIVE BANK
AND
CERTAIN BANKS NAMED THEREIN
AND
FLEET NATIONAL BANK, AS ADMINISTRATIVE AGENT FOR THE BANKS
--------------------------
EMPLOYEE GRIEVANCES
--------------------------
NONE
SCHEDULE 3.17
TO FOURTH AMENDED AND RESTATED LOAN AGREEMENT
BY AND AMONG
NATIONAL CONSUMER COOPERATIVE BANK
AND
CERTAIN BANKS NAMED THEREIN
AND
FLEET NATIONAL BANK, AS ADMINISTRATIVE AGENT FOR THE BANKS
--------------------------
EMPLOYEE BENEFIT PLANS
--------------------------
BENEFIT PLANS: The Borrower maintains a defined contribution retirement plan
which covers substantially all its employees, after one year of eligibility.
Under the plan, the Borrower makes an annual contribution of six percent of the
compensation (up to $200,000 and not including overtime or bonuses) of plan
participants. The contribution is non-integrated. Participants' rights in the
plan vest over six years.
The Borrower also maintains an employee thrift plan pursuant to Section 401(k)
of the Internal Revenue Code in which all employees are eligible to participate.
Under the plan, the Borrower will match employee contributions to the plan up to
six percent of net compensation. Participants' rights in the plan vest upon
contribution.
SCHEDULE 7.1
TO FOURTH AMENDED AND RESTATED LOAN AGREEMENT
BY AND AMONG
NATIONAL CONSUMER COOPERATIVE BANK
AND
CERTAIN BANKS NAMED THEREIN
AND
FLEET NATIONAL BANK, AS ADMINISTRATIVE AGENT FOR THE BANKS
--------------------------
PERMITTED INDEBTEDNESS AND GUARANTIES
--------------------------
1. Indebtedness of NCB Capital and NCB, FSB secured by liens
permitted under Section 3.5 hereof.
2. The Borrower may enter into an amendment of its Financing
Agreement with the U.S. Treasury Department providing for a
prepayment of the Class A Notes in 2010 and 2015 with the
proceeds of a substantially simultaneous issue of equity or
subordinated debt, all pursuant to the terms of the Borrower's
Capitalization Policy under the section entitled "Class A Note
Retirement Plan" as adopted by the Borrower's Board of
Directors and in effect as of the Effective Date.
SCHEDULE 7.13
TO FOURTH AMENDED AND RESTATED LOAN AGREEMENT
BY AND AMONG
NATIONAL CONSUMER COOPERATIVE BANK
AND
CERTAIN BANKS NAMED THEREIN
AND
FLEET NATIONAL BANK, AS ADMINISTRATIVE AGENT FOR THE BANKS
--------------------------
TRANSACTIONS WITH AFFILIATES
--------------------------
1. Annual charitable contributions by the Borrower to Development
Corp.
2. Development Corp. has requested that the Borrower provide it
with an unsecured line of credit of up to $10,000,000 on terms
and conditions that would constitute an arms-length
transaction.
FOURTH AMENDED AND RESTATED LOAN AGREEMENT
BY AND AMONG
NATIONAL CONSUMER COOPERATIVE BANK,
D/B/A NATIONAL COOPERATIVE BANK,
AS BORROWER
AND
THE BANKS SIGNATORY HERETO,
SUNTRUST BANK, AS SYNDICATION AGENT,
WACHOVIA BANK, N.A., AS DOCUMENTATION AGENT
AND
FLEET NATIONAL BANK,
AS ADMINISTRATIVE AGENT
DATED AS OF FEBRUARY 12, 2002
FLEET SECURITIES, INC.
LEAD ARRANGER AND BOOK MANAGER