Exhibit 10.61
National Consumer
Cooperative Bank
Fourth Amendment
Dated as of December 31, 2007
to
NOTE PURCHASE AND
UNCOMMITTED MASTER SHELF AGREEMENT
Dated as of December 28, 2001
Fourth
Amendment
This Fourth Amendment dated as of
December 31, 2007 (the or this “Fourth
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/ 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 Fourth 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 by a First Amendment, dated as of December 9,
2003, a Second Amendment, dated as of December 28, 2004 and a
Third Amendment, dated as of December 28, 2006 (as so 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 Fourth 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 Fourth 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 5G of the Note Agreement shall be and is hereby
amended in its entirety to read as follows:
“Section 5G.
Incorporation of Affirmative and Negative Covenants .
(i) During all such times as the Bank
Loan Agreement or the MetLife Agreement 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 9 and 10 of the MetLife Agreement 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 9
and 10 of the MetLife Agreement 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 9, Section 10 or
any Financial Covenant of the MetLife Agreement, 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.
(ii) No Financial Covenant
incorporated herein by virtue of paragraph 5G(i) 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 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 the period with
a semicolon at the end of Subparagraph (k) thereof and adding
the following after Subparagraph (k):
“(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 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 Bank Loan 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 Bank Loan
Agreement, this Agreement and to the Note Purchase Agreement dated
January 8, 2003 with Metropolitan Life Insurance Company and
other signatories thereto (the “MetLife Agreement”) (or
the prepayments of the notes issued thereunder together with the
termination of the associated interest rate swap agreement with
Union Bank of California); 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.”
3
Section 1.3.
Paragraph 6H of the Note Agreement shall be and is hereby
amended in its entirety to read as follows:
“The
Company shall not permit the Consolidated Earnings Available for
Fixed Charges for any period of four (4) consecutive fiscal
quarters of the Company to be less than one hundred ten percent
(110%) of Consolidated Fixed Charges for such period; provided,
however, that, for each of such periods ending December 31,
2007, March 31, 2008, June 30, 2008, September 30, 2008
and December 31, 2008, such minimum percentage shall be
reduced to one hundred percent (100%).”
Section 1.4. The last
four lines of the definition of Restricted Investments shall be and
are hereby amended in their entirety to read as follows:
“provided, that the term Restricted Investments shall for all
purposes include all Investments des
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