EXHIBIT 10.35
AMENDMENT NO. 1 TO
FOURTH AMENDED AND RESTATED LOAN AGREEMENT
AGREEMENT, made as of the 10th day of February, 2003, by and among:
NATIONAL CONSUMER COOPERATIVE BANK, a corporation chartered by Act of
Congress of the United States which conducts business under the trade name
National Cooperative Bank (the "BORROWER");
THE BANKS which have executed this Agreement (individually, a "BANK" and,
collectively, the "BANKS");
FLEET NATIONAL BANK, as Administrative Agent for the Banks (in such
capacity, together with its successors in such capacity, the "AGENT"); and
SUNTRUST BANK, as Syndication Agent, WACHOVIA BANK, N.A., as Documentation
Agent and FLEET SECURITIES, INC., as Lead Arranger.
W I T N E S S E T H :
WHEREAS:
(A) The Borrower, the Agent and the banks signatory thereto (the "BANKS")
entered into a certain Fourth Amended and Restated Loan Agreement dated as of
February 12, 2002 (the "ORIGINAL LOAN AGREEMENT"; the Original Loan Agreement,
as amended hereby, and as it may hereafter be further amended, modified or
supplemented, is hereinafter referred as the "LOAN AGREEMENT");
(B) The Borrower wishes to amend the Original Loan Agreement to extend the
B Commitment Termination Date to May 12, 2003, and the Banks and the Agent are
willing to amend and supplement the Original Loan Agreement on the terms and
conditions hereinafter set forth; and
(C) All capitalized terms used herein which are not otherwise defined
herein shall have the respective meanings ascribed thereto in the Original Loan
Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1. AMENDMENTS TO ORIGINAL LOAN AGREEMENT, B NOTES AND SWING LINE
NOTE.
SECTION 1.1 The Original Loan Agreement is hereby amended as follows:
(a) The definition of "B Commitment Termination Date" appearing in
Article 1 is amended by deleting the date "February 11, 2003" and
substituting therefor the date "May 12, 2003".
(b) The date "February 11, 2003" contained in the B Notes is
deleted in each place it appears and the date "May 12, 2003" is substituted
therefor in each such place.
(c) The date "February 11, 2003" contained in the Swing Line Note
is deleted in each place it appears and the date "May 12, 2003" is
substituted therefor in each such place.
SECTION 1.2 (a) All references in the Original Loan Agreement or any
other Loan Document to the "Loan(s)", the "B Note(s)", the "Swing Line Note",
the "Note(s)" and the "Loan Documents" shall be deemed to refer respectively, to
the Loan(s), as amended hereby, the B Note(s), as extended hereby, the Swing
Line Note, as extended hereby, the Note(s), as extended hereby and the Loan
Documents as defined in the Original Loan Agreement together with, and as
amended by, this Amendment No. 1.
(b) All references in the Original Loan Agreement and the
other Loan Documents to the "Loan Agreement", and also in the case of the
Original Loan Agreement to "this Agreement", shall be deemed to refer to the
Original Loan Agreement, as amended hereby.
SECTION 1.3 The Original Loan Agreement and the other Loan Documents shall
each be deemed amended and supplemented hereby to the extent necessary, if any,
to give effect to the provisions of this Agreement.
ARTICLE 2. REPRESENTATIONS AND WARRANTIES.
The Borrower hereby confirms and restates to each of the Banks and the
Agent all of the representations and warranties set forth in Article 3 of the
Original Loan Agreement as if such representations and warranties were made as
of the date hereof, except for changes in the ordinary course of business which,
either singly or in the aggregate, are not materially adverse to the business or
financial condition of the Borrower.
ARTICLE 3. CONDITIONS TO EFFECTIVENESS OF THIS AGREEMENT.
This Amendment No. 1 to Fourth Amended and Restated Loan Agreement
shall become effective on the date of the fulfillment (to the satisfaction of
the Agent) of the following conditions precedent:
(a) This Amendment No. 1 shall have been executed and delivered to
the Agent by a duly authorized representative of the Borrower, the Agent and
each Bank.
(b) The Agent shall have received a Compliance Certificate from
the Borrower dated the date hereof and the matters certified therein, including,
without limitation, that after giving effect to the terms and conditions of this
Amendment No. 1, no Default or Event of Default shall exist, shall be true.
(c) Xxxx & Xxxxxxx, counsel to the Borrower, shall have delivered
its legal opinion to the Agent, in form and substance satisfactory to the Agent
and its counsel.
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(d) The Agent shall have received copies of the following:
(i) Copies of all corporate action taken by the Borrower to
authorize the execution, delivery and performance of this Amendment No. 1 and
the transactions contemplated hereby, certified by its secretary;
(ii) A certificate from the secretary of the Borrower to the
effect that the By-laws of the Borrower delivered to the Agent pursuant to the
Original Loan Agreement have not been amended since the date of such delivery
and that such document is in full force and effect and is true and correct as of
the date hereof; and
(iii) An incumbency certificate (with specimen signatures)
with respect to the Borrower.
(e) All legal matters incident hereto shall be satisfactory to the
Agent and its counsel.
ARTICLE 4. MISCELLANEOUS.
SECTION 4.1 ARTICLE 10 OF THE ORIGINAL LOAN AGREEMENT. The miscellaneous
provisions under Article 10 of the Original Loan Agreement, together with the
definition of all terms used therein, and all other sections of the Original
Loan Agreement to which Article 10 refers are hereby incorporated by reference
as if the provisions thereof were set forth in full herein, except that (i) the
terms "Loan Agreement" and "Note(s)", shall be deemed to refer, respectively, to
the Original Loan Agreement, as amended hereby, and the Note(s), as extended
hereby; (ii) the term "this Agreement" shall be deemed to refer to this
Agreement; and (iii) the terms "hereunder" and "hereto" shall be deemed to refer
to this Agreement.
SECTION 4.2 CONTINUED EFFECTIVENESS. Except as amended hereby, the
Original Loan Agreement and the other Loan Documents are hereby ratified and
confirmed in all respects and shall remain in full force and effect in
accordance with their respective terms.
SECTION 4.3 COUNTERPARTS. This Agreement may be executed by the parties
hereto in one or more counterparts, each of which shall be an original and all
of which shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed on the date first above written.
NATIONAL CONSUMER COOPERATIVE
BANK, d/b/a NATIONAL COOPERATIVE BANK
BY:
---------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Managing Director, Chief Financial
Officer and Treasurer
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A COMMITMENT FLEET NATIONAL BANK,
AS ADMINISTRATIVE AGENT AND AS A BANK,
$27,500,000 AND AS SWING LINE LENDER
B COMMITMENT BY:
---------------------------------------
NAME: XXXXXX X. XXXX
$27,500,000 TITLE: SENIOR VICE PRESIDENT
A COMMITMENT CREDIT SUISSE FIRST BOSTON
CAYMAN ISLANDS BRANCH
$20,000,000
BY:
---------------------------------------
NAME:
----------------------------------
TITLE:
---------------------------------
B COMMITMENT BY:
---------------------------------------
NAME:
----------------------------------
$20,000,000 TITLE:
---------------------------------
A COMMITMENT COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK
$10,000,000 B.A., "RABOBANK INTERNATIONAL",
NEW YORK BRANCH
B COMMITMENT BY:
---------------------------------------
NAME:
----------------------------------
$10,000,000 TITLE:
---------------------------------
BY:
---------------------------------------
NAME:
----------------------------------
TITLE:
---------------------------------
A COMMITMENT PNC BANK, NATIONAL ASSOCIATION
$17,500,000
BY:
---------------------------------------
NAME:
----------------------------------
TITLE:
---------------------------------
B COMMITMENT
$17,500,000
A COMMITMENT WACHOVIA BANK, N.A.,
AS DOCUMENTATION AGENT AND AS A BANK
$22,500,000
BY:
---------------------------------------
NAME:
----------------------------------
TITLE:
---------------------------------
B COMMITMENT
$22,500,000
A COMMITMENT ALLFIRST BANK
$12,500,000
BY:
---------------------------------------
NAME:
TITLE:
B COMMITMENT
$12,500,000
A COMMITMENT UNION BANK OF CALIFORNIA, N.A.
$10,000,000
BY:
---------------------------------------
NAME:
----------------------------------
TITLE:
---------------------------------
B COMMITMENT
$10,000,000
A COMMITMENT SUNTRUST BANK, AS SYNDICATION AGENT
AND AS A BANK
$22,500,000
BY:
---------------------------------------
NAME:
----------------------------------
TITLE:
---------------------------------
B COMMITMENT
$22,500,000
A COMMITMENT ISRAEL DISCOUNT BANK OF NEW YORK
$5,000,000
BY:
---------------------------------------
NAME:
TITLE:
B COMMITMENT
$5,000,000
BY:
---------------------------------------
NAME:
TITLE:
A COMMITMENT CREDIT LYONNAIS NEW YORK BRANCH
$17,500,000
BY:
---------------------------------------
NAME:
TITLE:
B COMMITMENT
$17,500,000
A COMMITMENT KBC BANK N.V.
$10,000,000
BY:
---------------------------------------
NAME:
----------------------------------
TITLE:
---------------------------------
B COMMITMENT BY:
---------------------------------------
NAME:
----------------------------------
$10,000,000 TITLE:
---------------------------------
