National Consumer Cooperative Bank Second Amendment Dated as of December 31, 2007 to Note Purchase Agreement Dated as of January 8, 2003
Exhibit
10.59
National Consumer Cooperative Bank
Second Amendment
Dated as of December 31, 2007
Dated as of December 31, 2007
to
Note Purchase Agreement
Dated as of January 8, 2003
Dated as of January 8, 2003
Second Amendment to Note Purchase Agreement
This Second Amendment dated as of December 31, 2007 (the or this “Second Amendment”)
to the Note Purchase Agreement dated as of January 8, 2003 is between National Consumer
Cooperative Bank (d/b/a/ NCB), a banking corporation chartered pursuant to the National
Consumer Cooperative Bank Act, as amended, 12 U.S.C. §§3001-3051 (the “Company”), and each of the
institutions which is a signatory to this Second Amendment (collectively, the “Noteholders”).
Recitals:
A. The Company and each of the Noteholders have heretofore entered into the Note Purchase
Agreement dated as of January 8, 2003 which was amended by the First Amendment to Note Purchase
Agreement dated as of December 15, 2003 (as amended and in effect on the date hereof, the “Note
Agreement”).
B. The Company and the Noteholders now desire to amend the Note Agreement in the respects, but
only in the respects, hereinafter set forth.
C. Capitalized terms used herein shall have the respective meanings ascribed thereto in the
Note Agreement unless herein defined or the context shall otherwise require.
D. All requirements of law have been fully complied with and all other acts and things
necessary to make this Second Amendment a valid, legal and binding instrument according to its
terms for the purposes herein expressed have been done or performed.
Now, therefore, upon the full and complete satisfaction of the conditions precedent
to the effectiveness of this Second Amendment set forth in Section 3.1 hereof, and in consideration
of good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the
Company and the Noteholders do hereby agree as follows:
Section 1. Amendments.
Section 1.1. Section 9.9 of the Note Agreement shall be and is hereby amended in its entirety
to read as follows:
“Section 9.9. Incorporation of Affirmative and Negative Covenants.
(a) During all such times as the Bank Loan Agreement or the Prudential Agreements shall
remain in force, (i) the Company and the Restricted Subsidiaries shall comply and remain at
all times in compliance with the provisions of Article 6 and Article 7 of the Bank Loan
Agreement and with Sections 5 and 6 of the Prudential Agreements and with any Financial
Covenant set forth in any other provision of such agreements and (ii) all of the provisions
of Article 6 and Article 7 of the Bank Loan Agreement and Sections 5 and 6 of the Prudential
Agreements and any other Financial Covenants set forth therein,
together with all relevant definitions pertaining thereto, shall hereby be incorporated
herein by reference, mutatis mutandis. The Company shall give all holders of Notes written
notice of any amendment, modification or waiver of Article 6, Article 7 or any Financial
Covenant of the Bank Loan Agreement or of Section 5, Section 6 or any Financial Covenant of
the Prudential Agreements, attaching an executed copy of the amendment, modification or
waiver to such written notice, within five (5) Business Days of such amendment, modification
or waiver.
(b) No Financial Covenant incorporated herein by virtue of Section 9.9(a) hereof shall
supersede, replace, amend, supplement or modify any other provision of this Agreement,
including any covenant contained herein which addresses a subject matter similar to that of
such incorporated Financial Covenant.”
Section 1.2. Section 9.11 of the Note Agreement shall be and is hereby amended in its
entirety to read as follows:
“Paid in Capital. The Company will limit its Investments in the form of
“Paid-in-Capital” (as determined in accordance with GAAP) in NCB Financial Corporation to an
aggregate amount not greater than thirty five percent (35%) of Consolidated Adjusted Net
Worth at the time of such investment.”
Section 1.3. Section 10.3 of the Note Agreement shall be and is hereby amended in its
entirety to read as follows:
“The Company shall not, at any time, permit the Fixed Charges Coverage Ratio to be less than
1.10 to 1, provided, however, that, for each of the quarterly periods ending December 31,
2007, March 31, 2008, June 30, 2008, September 30, 2008 and December 31, 2008, the Company
shall not, at any time, permit the Fixed Charge Coverage Ratio to be less than 1 to 1.”
Section 1.4. Subparagraph (vii) of Section 10.4(a) of the Note Agreement shall be and is
hereby amended in its entirety to read as follows:
“(vii) Debt of NCB, FSB (formerly known as NCB Savings Bank, FSB) that (A) consists of
demand and time deposits and (B) consists of advances from the Federal Home Loan Bank of
Cincinnati (“FHLBC”) secured pursuant to that certain Blanket Security Agreement, dated as
of June 30, 2006 (superseding and replacing the agreement dated November 30, 2000) between
NCB, FSB and FHLBC, as the same may be amended or restated from time to time.”
Section 1.5. The definition of “Consolidated Adjusted Net Income” shall be and is hereby
amended by deleting the word “and” at the end of Subparagraph (j) thereof, replacing period with a
semicolon at the end of Subparagraph (k) thereof and adding the following after Subparagraph (k):
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“(l) solely for the fiscal quarter of the Company ended June 30, 2007: losses, charges and
expenses incurred pursuant to relocation programs in the aggregate amount of $1,288,000;
(m) solely for the fiscal quarter of the Company ended September 30, 2007: net losses,
charges and expenses incurred on loan sales during such quarter in the amount of $5,328,000;
losses, charges and expenses incurred due to the application of Financial Accounting
Standards Board Statement 133 in the amount of $1,077,000; losses, charges and expenses
incurred due to the adjustment of loan values to reflect the lower of cost or Fair Market
Value in the amount of $2,251,000; losses, charges and expenses incurred pursuant to
separation programs in the aggregate amount of $840,000; and transaction costs and expenses
incurred in connection with amending the Revolving Credit Agreement dated May 1, 2006 by and
among the Company, SunTrust (as Agent) and the other banks party thereto (as may be amended
from time to time, the “Revolving Credit Agreement”) in the aggregate amount of $220,000;
and
(n) solely for the fiscal quarter of the Company ending December 31, 2007: net losses,
charges and expenses incurred on loan sales; losses, charges and expenses incurred due to
the application of Financial Accounting Standards Board Statement 133; losses, charges and
expenses incurred due to the adjustment of loan values to reflect the lower of cost or Fair
Market Value; losses, charges and expenses incurred pursuant to relocation, separation and
early retirement programs; and transaction costs and expenses incurred by the Company in
connection with amendments to the Revolving Credit Agreement, the Note Purchase and
Uncommitted Master Shelf Agreement dated December 28, 2001 by and among the Company,
Prudential Insurance Company of America and the other note holders thereunder (the
“Prudential Agreement”) and the Note Agreement; provided, however, that the adjustments
permitted to be made under this clause (n) for such fiscal quarter shall not exceed
$7,500,000 in the aggregate.”
Section 1.6. Schedule B of the Note Agreement shall be and is hereby amended by replacing the
definition of “Bank Loan Agreement” with the following:
“Bank Loan Agreement” means the Credit Agreement dated as of May 1, 2006 by and among
the Company, the bank signatory thereto, and SunTrust Bank as Administrative Agent, as
amended and restated or replaced from time to time.
Section 1.7. Schedule B of the Note Agreement shall be and is hereby amended by replacing the
parenthetical in the definition of “Consolidated Debt” with the following:
“(including, without limitation, advances under that certain Blanket Security Agreement
dated as of June 30, 2006 (superseding and replacing the agreement dated November 30, 2000)
with FHLBC, as amended or restated from time to time)”
Section 1.8. Schedule B of the Note Agreement shall be and is hereby amended by replacing
the definition of “Prudential Agreements” with the following:
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“Prudential Agreements” means (i) the Note Purchase and Uncommitted Master Shelf
Agreement dated as of December 28, 2001 between the Company and the Prudential Insurance
Company of America, and (ii) any other agreement involving indebtedness between the Company
or any of its Subsidiaries and the Prudential Insurance Company of America or any of its
Subsidiaries or Affiliates, in each case as amended from time to time.
Section 1.9. Subparagraphs (e) and (f) of the definition of Restricted Investments shall be
and are hereby amended by deleting in each case “, and provided further, that such obligations
mature within 365 days from the date of acquisition thereof”.
Section 1.10. The definition of Restricted Investments shall be and is hereby further amended
by deleting the word “and” the end of Subparagraph (n) and by inserting the following before the
period at the end of Subparagraph (o):
“and;
(p) Investments in interest only receivables, other retained interests, and other
securities specifically related to the Company’s or any Subsidiary’s loan sales or Asset
Securitizations in an aggregate amount not greater than sixty percent (60%) of Consolidated
Adjusted Net Worth at the time of such investment. For purposes of this calculation,
mortgage servicing rights shall not be included.
Section 1.11. Schedules 5.4 (Subsidiaries/Officers) and 5.15 (Indebtedness) to the Note
Agreement shall be and are hereby amended and replaced in their entirety with the schedules
attached hereto as Schedule 5.4 and Schedule 5.15 (the “Replaced Schedules”) respectively for the
purposes of the representation as of the date hereof given by the Company in Section 2.1(g) of this
Second Amendment only. In no way shall these Replaced Schedules be deemed to replace the schedules
referenced in Section 10.11 and in the definition of “Restricted Subsidiary” in the Note Agreement
from the original Schedules 5.4 and 5.15 as of the date of Closing on January 8, 2003. Section
5.15(a) shall be and is hereby amended by replacing the reference to “January 3, 2003” with
“December 18, 2007”.
Section 2. Representations and Warranties of the Company.
Section 2.1. To induce the Noteholders to execute and deliver this Second Amendment (which
representations shall survive the execution and delivery of this Second Amendment), the Company
represents and warrants to the Noteholders that:
(a) the Company is a corporation duly organized, validly existing and in good standing
under the laws of its jurisdiction of incorporation, and the Company has the corporate power
and authority to execute and deliver this Second Amendment and to perform the provisions
hereof and the provisions of the Note Agreement, as amended by this Second Amendment;
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(b) this Second Amendment has been duly authorized by all necessary corporate action on
the part of the Company, and this Agreement constitutes a legal, valid and binding
obligation of the Company enforceable against the Company in accordance with its terms,
except as such enforceability may be limited by (i) applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement of creditors’
rights generally and (ii) general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law);
(c) the Note Agreement, as amended by this Second Amendment, constitutes a legal, valid
and binding obligation of the Company enforceable against the Company in accordance with its
terms, except as such enforceability may be limited by (i) applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the enforcement of
creditors’ rights generally and (ii) general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law);
(d) the execution, delivery and performance by the Company of this Second Amendment
will not (i) contravene, result in any breach of, or constitute a default under, or result
in the creation of any Lien in respect of any property of the Company or any Subsidiary
under, any indenture, mortgage, deed of trust, loan, purchase or credit agreement, lease,
corporate charter or by-laws, or any other agreement or instrument to which the Company or
any Subsidiary is bound or by which the Company or any Subsidiary or any of their respective
properties may be bound or affected, (ii) conflict with or result in a breach of any of the
terms, conditions or provisions of any order, judgment, decree, or ruling of any court,
arbitrator or Governmental Authority applicable to the Company or any Subsidiary or (iii)
violate any provision of any statute or other rule or regulation of any Governmental
Authority applicable to the Company or any Subsidiary;
(e) no consent, approval or authorization of, or registration, filing or declaration
with, any Governmental Authority is required in connection with the execution or delivery by
the Company of this Second Amendment or performance by the Company of the Note Agreement, as
amended by this Second Amendment;
(f) after giving effect to this Second Amendment, no Default or Event of Default has
occurred which is continuing; and
(g) all the representations and warranties contained in Section 5 of the Note Agreement
are true and correct in all material respects with the same force and effect as if made by
the Company on and as of the date hereof; provided that Schedules 5.4 and 5.15 are amended
by substituting the attached Schedules in lieu thereof.
(h) The Company has not paid or agreed to pay any fees or other consideration, or
given any additional security or collateral, or shortened the maturity or average life of
any indebtedness or permanently reduced any borrowing capacity, in each case, in connection
with the obtaining of any consents or approvals in connection with the transactions
contemplated hereby including, without limitation thereof in connection
with the Bank Loan Agreement and the Prudential Agreements, other than the payment of legal
fees of counsel to the lenders and agents under the respective amendment and the payment of
25 basis points to each Prudential Noteholder and, with respect to the Bank Loan Agreement,
10 basis points to each consenting lender, and an arrangement fee to SunTrust.
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Section 3. Conditions to Effectiveness of This Second Amendment.
Section 3.1. This Second Amendment shall not become effective until, and shall become
effective when, each and every one of the following conditions shall have been satisfied:
(a) executed counterparts of this Second Amendment, duly executed by the Company and
the Required Holders, shall have been delivered to the Noteholders;
(b) the representations and warranties of the Company set forth in Section 2 hereof are
true and correct on and with respect to the date hereof; and
(c) the Noteholders shall have received such additional documents or certificates with
respect to legal matters or corporate or other proceedings related to the transactions
contemplated hereby as may be reasonably requested by the Noteholders.
(d) the Noteholders shall have received evidence satisfactory to them that the Bank
Loan Agreement and the Prudential Agreements have been amended substantially as proposed in
the forms annexed thereto as Exhibits A and B, respectively;
(e) the Noteholders shall have received by wire transfer to each Noteholder’s account
specified in Schedule A to the Note Purchase Agreement (or otherwise specified to the
Company in writing) their pro rata portion of an amendment fee equal to $125,000;
(f) the Company shall have paid the fees and disbursements of the Noteholders’ special
counsel, ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, incurred in connection with the negotiation, preparation,
execution and delivery of this Second Amendment Agreement and the transactions contemplated
hereby which fees and disbursements are reflected in the statement of such special counsel
delivered to the Company at the time of the execution and delivery of this Second Amendment
Agreement.
Upon receipt of all of the foregoing, this Second Amendment shall become effective.
Section 4. Miscellaneous.
Section 4.1. This Second Amendment shall be construed in connection with and as part of the
Note Agreement, and except as modified and expressly amended by this Second Amendment, all terms,
conditions and covenants contained in the Note Agreement and the Notes are hereby ratified and
shall be and remain in full force and effect.
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Section 4.2. Any and all notices, requests, certificates and other instruments executed and
delivered after the execution and delivery of this Second Amendment may refer to the Note Agreement
without making specific reference to this Second Amendment but nevertheless all such references
shall include this Second Amendment unless the context otherwise requires.
Section 4.3. The descriptive headings of the various Sections or parts of this Second
Amendment are for convenience only and shall not affect the meaning or construction of any of the
provisions hereof.
Section 4.4. This Second Amendment shall be construed and enforced in accordance with, and the
rights of the parties shall be governed by, the law of the State of New York excluding
choice-of-law principles of the law of such State that would require the application of the laws of
a jurisdiction other than such State.
Section 4.5. The execution hereof by you shall constitute a contract between us for the uses
and purposes hereinabove set forth, and this Second Amendment may be executed in any number of
counterparts, each executed counterpart constituting an original, but all together only one
agreement.
[Signature Page Follows]
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| National Consumer Cooperative Bank | ||||||||
| By | ||||||||
| Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ | ||||||||
Title: Managing Director and Chief Financial Officer |
||||||||
Accepted and Agreed to: |
||||||||
| Metropolitan Life Insurance Company | ||||||||
| By | ||||||||
| Name: | ||||||||
| Title: | ||||||||
| MetLife Investors USA Insurance Company | ||||||||
| By: | Metropolitan Life Insurance Company, as | |||||||
| Investment Manager | ||||||||
| By | ||||||||
| Title: | ||||||||
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| New England Life Insurance Company | ||||||||
| By: | Metropolitan Life Insurance Company, as Investment Manager |
|||||||
| By | ||||||||
| Title: | ||||||||
First MetLife Investors Insurance Company |
||||||||
By: Metropolitan Life Insurance Company, as
Investment Manager |
||||||||
| By | ||||||||
| Title: | ||||||||
| MetLife Bank, National Association | ||||||||
By: Metropolitan Life Insurance Company, as
Investment Manager |
||||||||
| By | ||||||||
| Title: | ||||||||
GREAT-WEST LIFE & ANNUITY
INSURANCE COMPANY |
||||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
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