THIS GUARANTY
AGREEMENT dated as of April 30, 2009 (this “
Guaranty ”), by NCB Financial Corporation, a Delaware
corporation (the “ Guarantor ”), a wholly owned
subsidiary of National Consumer Cooperative Bank, doing business as
NCB (the “ Borrower ”), in favor of SunTrust
Bank in its capacity as Collateral Agent (the “ Collateral
Agent ”) for the Creditors (as defined below).
WHEREAS ,
the Borrower, SunTrust Bank, in its capacity as Administrative
Agent (the “ Administrative Agent ”) for the
lenders parties thereto (the “ Lenders ”), and
the Lenders entered into that certain Credit Agreement dated as of
May 1, 2006 (as amended and in effect on the date hereof
and as may be further amended, restated, modified or supplemented
from time to time, the “ Credit Agreement ”),
pursuant to which the Lenders agreed to extend certain financial
accommodations pursuant to the terms and conditions set forth in
the Credit Agreement;
WHEREAS ,
the Borrower and certain investors are party to that certain Note
Purchase and Uncommitted Master Shelf Agreement dated as of
December 28, 2001 (as amended and in effect on the date
hereof and as may be further amended, restated, modified or
supplemented from time to time, the “ Senior Note
Agreement ”), pursuant to which the Borrower issued its
(a) 5.62% Senior Notes due December 28, 2009 in the
original principal amount of $55,000,000 and (b) 5.60% Senior
Notes due December 15, 2010 in the original principal
amount of $50,000,000 (as amended and in effect on the date hereof
and as may be further amended, restated, modified or supplemented
from time to time, collectively, the “ Senior Notes
”; and each holder from time to time of a Senior Note
referred to individually as “ Noteholder ” and
collectively as the “ Noteholders ”);
WHEREAS ,
the Guarantor is a direct Subsidiary of the Borrower and
acknowledges that it has and will continue to derive substantial
benefit from the financial accommodations provided to the Borrower
by the Creditors (as defined below); and
WHEREAS ,
the Collateral Agent, the Issuing Bank (as defined in the Credit
Agreement), the Lenders, each Lender and each affiliate of a Lender
that has or may enter into a Swap Contract (as defined in the
Credit Agreement) with the Borrower or any of its subsidiaries, and
the Noteholders (collectively, the “ Creditors
”), have required that the Guarantor enter into this Guaranty
to guarantee the Obligations (defined below);
NOW,
THEREFORE , in consideration of the premises and mutual
covenants herein contained and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1.
Guaranty of Payment and Performance . The Guarantor hereby
guarantees to the Collateral Agent on behalf of the Creditors, the
full and punctual payment when due (whether at stated maturity, by
required pre-payment, by acceleration or otherwise), as well as the
performance, of all of the Obligations, including all such
Obligations which would become due
1
but for the
operation of the automatic stay pursuant to §362(a) of the
Bankruptcy Code of 1978, as amended (the “ Bankruptcy
Code ”) and the operation of §§502(b) and
506(b) of the Bankruptcy Code. This Guaranty is an absolute,
unconditional and continuing guaranty of the full and punctual
payment and performance of all of the Obligations and not of their
collectibility only and is in no way conditioned upon any
requirement that the Collateral Agent first attempt to collect any
of the Obligations from the Borrower or resort to any collateral
security or other means of obtaining payment. The obligations of
the Guarantor hereunder with respect to such Obligations shall be
primary and shall, upon demand by the Collateral Agent following an
Event of Default, become immediately due and payable to the
Collateral Agent, for the benefit of the Creditors, without demand
or notice of any nature, all of which are expressly waived by the
Guarantor. Payments by the Guarantor hereunder may be required by
the Collateral Agent on multiple occasions. The Guarantor, the
Borrower and, by its acceptance of this Guaranty, the Collateral
Agent and each other Creditor, hereby confirms that it is the
intentions of all such Persons that this Guaranty and the
Obligations of the Guarantor hereunder not constitute a fraudulent
transfer or conveyance for purposes of Bankruptcy Law (as defined
below), the Uniform Fraudulent Conveyance Act, the Uniform
Fraudulent Transfer Act, or any similar foreign, federal or state
law to the extent applicable to this Guaranty and the Obligations
of the Guarantor hereunder. To effectuate the foregoing intention,
the Collateral Agent, the Creditors and the Guarantor hereby
irrevocably agree that the Obligations of the Guarantor under this
Guaranty at any time shall be limited to the maximum amount as will
result in the Obligations of the Guarantor under this Guaranty not
constituting a fraudulent transfer or conveyance. For purposes
hereof, “ Bankruptcy Law ” means any proceeding
of the type referred to in Title 11, U.S. Code, or any similar
foreign, federal or state law for the relief of debtors.
“ Event
of Default ” means any Event of Default as defined in the
Credit Agreement or the Senior Note Agreement, as
applicable.
“
Obligations ” means (a) Obligations (as defined
in the Credit Agreement) and (b) Obligations (as defined in the
Senior Note Agreement).
“
Security Documents ” means (a) that certain
Pledge Agreement by the Guarantor in favor of the Collateral Agent,
dated as of the date hereof and (b) that certain Security
Agreement by the Borrower in favor of the Collateral Agent, dated
as of the date hereof.
2.
Guarantor’s Agreement to Pay Enforcement Costs,
etc . The Guarantor further agrees, as the principal
obligor and not as a guarantor only, to pay to the Collateral
Agent, on demand, all reasonable out-of pocket costs and expenses
(including court costs and reasonable legal expenses) incurred or
expended by the Collateral Agent or any Creditor in connection with
the Obligations, this Guaranty and the enforcement thereof,
together with interest on amounts recoverable under this
Section 2 from the time when such amounts become due until
payment, whether before or after judgment, at the rate set forth in
clause (ii) of the definition of “Post-Default
Rate” set forth in the Credit Agreement or the default rate
set forth in the Senior Notes, whichever is higher; provided
that if such interest exceeds the maximum amount permitted to be
paid under applicable law, then such interest shall be reduced to
such maximum permitted amount.
2
3.
Waivers by Guarantor; Creditors’ Freedom to Act
. The Guarantor agrees that the Obligations will be paid and
performed strictly in accordance with their respective terms,
regardless of any law, regulation or order now or hereafter in
effect in any jurisdiction affecting any of such terms or the
rights of the Collateral Agent or any Creditor with respect
thereto. The Guarantor waives, except to the extent that any such
waiver would be expressly prohibited by law, promptness,
diligences, presentment, demand, protest, notice of acceptance,
notice of any Obligations incurred and all other notices of any
kind, all defenses which may be available by virtue of any
valuation, stay, moratorium law or other similar law now or
hereafter in effect, any right to require the marshalling of assets
of the Borrower or any other entity or other person primarily or
secondarily liable with respect to any of the Obligations, and all
suretyship defenses generally. Without limiting the generality of
the foregoing, the Guarantor agrees to the provisions of any
instrument evidencing, securing or otherwise executed in connection
with any Obligation and agrees that the obligations of the
Guarantor hereunder shall not be released or discharged, in whole
or in part, or otherwise affected by (i) the failure of the
Collateral Agent or any Creditor to assert any claim or demand or
to enforce any right or remedy against the Borrower or any other
entity or other person primarily or secondarily liable with respect
to any of the Obligations; (ii) any extensions, compromise,
refinancing, consolidation or renewals of any Obligation;
(iii) any change in the time, place or manner of payment of
any of the Obligations or any rescissions, waivers, compromise,
refinancing, consolidation or other amendments o
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