Exhibit 10.59
National Consumer
Cooperative Bank
Second Amendment
Dated as of December 31, 2007
to
Note Purchase
Agreement
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):
- 2 -
“(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 L
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