Ex. 10.51
National Consumer
Cooperative Bank
Second
Amendment
Dated as of December 28,
2004
to
NOTE PURCHASE AND UNCOMMITTED MASTER SHELF
AGREEMENT
Dated as of December 28,
2001
Re: $55,000,000 6.99 % Senior Notes
Due December 28,
2006
Second
Amendment
This Second Amendment
dated as of December 28, 2004 (the or this “Second
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 Second 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 6.99 % Senior Notes Due
December 28, 2006 (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 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.
Paragraph 1B shall be and is hereby amended by deleting the
reference to “$30,000,000” appearing therein and
replacing “$115,000,000” therefor.
Section 1.2. Paragraphs
2B(1) and 2B(2) shall be and are hereby amended in their entirety
to read as follows:
“2B(1).
Facility. Prudential is willing to consider, in its sole
discretion and within limits which may be authorized for purchase
by Prudential and Prudential Affiliates from time to time, the
purchase of Shelf Notes pursuant to this Agreement. As used herein,
the “Facility” shall refer to the willingness of
Prudential to consider such purchase of Shelf Notes. The
“Available Facility Amount” shall refer to, at
any time, the aggregate principal amount of Shelf Notes stated in
paragraph 1B, minus the
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aggregate principal amount of Shelf Notes
purchased and sold pursuant to this Agreement during the Issuance
Period, minus the aggregate principal amount of Accepted
Notes (as hereinafter defined) which have not yet been purchased
and sold hereunder during the Issuance Period; provided ,
however , that in no event shall the aggregate principal
amount of Series A Notes, other Shelf Notes or 1999 Notes held
by Prudential Affiliates exceed $150,000,000. NOTWITHSTANDING
THE WILLINGNESS OF PRUDENTIAL TO CONSIDER PURCHASES OF SHELF NOTES,
THIS AGREEMENT IS ENTERED INTO ON THE EXPRESS UNDERSTANDING THAT
NEITHER PRUDENTIAL NOR ANY PRUDENTIAL AFFILIATE SHALL BE OBLIGATED
TO MAKE OR ACCEPT OFFERS TO PURCHASE SHELF NOTES, OR TO QUOTE
RATES, SPREADS OR OTHER TERMS WITH RESPECT TO SPECIFIC PURCHASES OF
SHELF NOTES, AND THE FACILITY SHALL IN NO WAY BE CONSTRUED AS A
COMMITMENT BY PRUDENTIAL OR ANY PRUDENTIAL
AFFILIATE.
2B(2).
Issuance Period. Shelf Notes may be issued and sold pursuant
to this Agreement after December 28, 2004 and until the
earlier of (i) December 28, 2007 (or if such day is not a
Business Day, the Business Day next preceding such day) and
(ii) the thirtieth day after Prudential shall have given to
the Company, or the Company shall have given to Prudential, written
notice stating that it elects to terminate the issuance and sale of
Shelf Notes pursuant to this Agreement (or if such thirtieth day is
not a Business Day, the Business Day next preceding such thirtieth
day). The period during which Shelf Notes may be issued and sold
pursuant to this Agreement is herein called the “Issuance
Period”.”
Section 1.3.
Section 6B shall be and is hereby amended by deleting the
reference to “clause (1) and clause (2)” appearing
in the last paragraph thereof and substituting “clause
(a) and clause (b)” therefor.
Section 1.4.
Section 8 shall be and is hereby amended by inserting the
following new paragraph 8R in the appropriate location:
“8R
Foreign Assets Control Regulations, Etc. (i) Neither
the sale of the Notes by the Company hereunder nor its use of the
proceeds thereof will violate the Trading with the Enemy Act, as
amended, or any of the foreign assets control regulations of the
United States Treasury Department (31 CFR, Subtitle B,
Chapter V, as amended) or any enabling legislation or
executive order relating thereto.
(ii)
Neither the Company nor any Subsidiary (a) is a Person
described or designated in the Specially Designated Nationals and
Blocked Persons List of the Office of Foreign Assets Control or in
Section 1 of the Anti-Terrorism Order or (b) engages in
any dealings or transactions with any such Person. The Company and
its Subsidiaries are in compliance, in all material respects, with
the USA Patriot Act.
(iii)
No part of the proceeds from the sale of the Notes hereunder will
be used, directly or indirectly, for any payments to any
governmental official or employee, political party, official of a
political party, candidate for political office, or anyone
else
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acting
in an official capacity, in order to obtain, retain or direct
business or obtain any improper advantage, in violation of the
United States Foreign Corrupt Practices Act of 1977, as amended,
assuming in all cases that such Act applies to the
Company.”
Section 1.5.
Section 10B shall be and is hereby amended by inserting the
following definition in the appropriate alphabetic
location:
‘
“1999 Notes” shall mean the 7.68% Senior Notes
due December 28, 2005, issued in the original principal amount
of $30,000,000.’
Section 1.6. Prudential
hereby designates the following individuals as “Authorized
Officers” for purposes of the Note Agreement:
Paul L. Meiring
Yvonne M. Guajardo
Kevin J. Kraska
Christopher H. Carey
Section 1.7.
Schedule 8O to the Note Agreement shall be and is hereby
amended by substituting the attached Schedule 80
therefor.
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;
(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);
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