Exhibit 10.62
National Consumer
Cooperative Bank
Fifth Amendment
Dated as of February 25, 2008
to
NOTE PURCHASE AND
UNCOMMITTED MASTER SHELF AGREEMENT
Dated as of December 28, 2001
R e: $55,000,000 5.62
% Senior Notes Due 2009
$50,000,000 5.60 % Senior Notes Due 2010
Fifth
Amendment
This Fifth Amendment dated as of
February 25, 2008 (this “ Amendment ”) to
the Note Purchase and Uncommitted Master Shelf Agreement dated as
of December 28, 2001 is between National Consumer Cooperative
Bank (d/b/a/ National Cooperative Bank), 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 Amendment (collectively, the
“Noteholders” ).
Recitals:
A. The Company and each of the
Noteholders have heretofore entered into the Note Purchase and
Uncommitted Master Shelf Agreement dated as of December 28,
2001 (as amended and in effect on the date hereof, the
“Note Agreement” ). The Company has heretofore
issued $55,000,000 of its 5.62 % Senior Notes Due December 28,
2009 and $50,000,000 of its 5.60% Senior Notes Due
December 28, 2010 (collectively, the
“Notes” ) pursuant to 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 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 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.
Paragraph 5M shall be and is hereby amended by replacing it in
its entirety as follows:
5M. Paid-in-Capital. The Company will
at all times limit its ‘Paid-in-Capital’ (as determined
in accordance with GAAP) in NCB Financial Corporation to an
aggregate amount not to exceed 35% of Consolidated Adjusted Net
Worth at the time of such investment.
Section 1.2. Prudential
hereby designates the following individuals as “Authorized
Officers” for purposes of the Note Agreement:
Paul
L. Meiring
Paul Price
Yvonne M. Guajardo
Engin W. Okaya
Section 2.
Representations and
Warranties of the Company.
Section 2.1. To induce
the Noteholders to execute and deliver this Amendment (which
representations shall survive the execution and delivery of this
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 Amendment
and to perform the provisions hereof and the provisions of the Note
Agreement, as amended by this Amendment;
(b) this 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);
