FIFTH AMENDMENT TO CREDIT AGREEMENT AND LIMITED WAIVER
Exhibit 10.69
FIFTH AMENDMENT TO CREDIT AGREEMENT AND LIMITED WAIVER
This FIFTH AMENDMENT TO CREDIT AGREEMENT AND LIMITED WAIVER (this “Agreement”) is
dated as of February 23, 2010 by and among National Consumer Cooperative Bank, D/B/A National
Cooperative Bank (the “Borrower”), SunTrust Bank, as administrative agent (in such
capacity, the “Administrative Agent”), and the Banks (as defined below) signatory hereto.
W I T N E S S E T H:
WHEREAS, pursuant to that certain Credit Agreement, dated as of May 1, 2006 (as amended,
restated, supplemented, or otherwise modified from time to time, the “Credit Agreement”),
by and among the Borrower, the Administrative Agent, PNC Bank, National Association and Wachovia
Bank, National Association, as co-syndication agents (“Syndication Agents”), Calyon New
York Branch and Union Bank of California, N.A., as co-documentation agents (“Documentation
Agents”), SunTrust Capital Markets, Inc., as lead arranger and book manager
(“Arranger”; Administrative Agent, Syndication Agents, Documentation Agents and the
Arranger are each an “Agent” and are, collectively, the “Agents”), and the lenders
party thereto from time to time (collectively, the “Banks”), the Banks have made certain
loans and other financial accommodations to the Borrower;
WHEREAS, the Borrower has notified the Administrative Agent that certain Defaults and Events
of Default have occurred and are continuing under the Credit Agreement as a result of (a) the
Borrower’s failure to maintain (i) the ratio of Consolidated Earnings Available for Fixed Charge to
Consolidated Fixed Charges as required under Section 6.9(b) of the Credit Agreement for the period
ended June 30, 2009, (ii) the ratio of Consolidated Debt to Consolidated Adjusted Net Worth as
required under Section 6.9(c) of the Credit Agreement for the period ended June 30, 2009, (iii) the
ratio of Nonperforming Assets to Total Loans as required under Section 6.9(e) of the Credit
Agreement for the period ended May 31, 2009 and (iv) the Return on Average Assets as required under
Section 6.9(g) of the Credit Agreement for the period ended June 30, 2009, (b) Events of Default
occurring under Section 8.5 of the Credit Agreement with respect to the Borrower’s failure to
perform its obligations under the Senior Note Agreement, (c) the Revolving Credit Exposure of all
Banks as of September 30, 2009, in an amount equal to $165,417,268, exceeding the Aggregate
Revolving Commitment of $165,000,000, after giving effect to the $30,000,000 reduction in the
Aggregate Revolving Commitment on September 30, 2009 pursuant to that certain Notice of Irrevocable
Reduction and Termination dated as of March 30, 2009 (the “Irrevocable Reduction Notice”),
(d) any Default or Event of Default under the Credit Agreement that may have occurred prior to the
date hereof solely as a result of the Thrift borrowing Federal funds prior to the date hereof from
a Federal Reserve Bank under the Term Auction Facility of the Federal Reserve System in accordance
with applicable laws and regulations and safe and sound practice in breach of Section 7.1 of the
Credit Agreement, and (e) the Borrower’s failure to promptly notify the Administrative Agent in
writing of the foregoing pursuant to Section 6.7(a) of the Credit Agreement (collectively, the
“Existing Events of Default”). No other Default or Event of Default is, or shall be deemed
to be, an Existing Event of Default;
WHEREAS, the Borrower has requested that the Administrative Agent and the Banks waive the
Existing Events of Default, reduce the Aggregate Revolving Commitments to an amount equal to
$59,847,956.34 pursuant to Section 2.2 of the Credit Agreement, and amend certain terms and
provisions of the Credit Agreement as set forth herein; and
WHEREAS, on and subject to the terms and conditions set forth herein, the Administrative Agent
and the Banks have agreed to waive the Existing Events of Default and amend the Credit Agreement as
set forth herein.
NOW, THEREFORE, in consideration of the premises set forth above, the terms and conditions
contained herein and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree to amend the Credit Agreement as set forth below
and otherwise agree as follows:
1. Capitalized Terms. Each capitalized term used but not defined herein shall have
the meaning ascribed to such term in the Credit Agreement.
2. Amendments to the Credit Agreement. Subject to the satisfaction of the conditions
precedent set forth in Section 9 below:
(a) The Credit Agreement is hereby amended by inserting the following new defined terms in
proper alphabetical order in Article 1 (Definitions; Effective Date) of the Credit Agreement:
““Collateral Agent” shall mean SunTrust Bank, in its capacity as Collateral
Agent under the Intercreditor Agreement (together with its successors and assigns in
such capacity).
“Excess Cash” shall mean, at any time of determination, Cash of the Borrower as
of such date of determination as reflected in the Borrower’s financial records
(exclusive of amounts included therein with respect to deposits in the Borrower’s
clearing account and other accounts where the Borrower is acting as the custodian or
in a fiduciary capacity for the Cash maintained in such accounts) in excess of (i)
$50,000,000 at any time on or before June 30, 2010 or (ii) $45,000,000 at any time
on or after July 1, 2010.
“Excess Cash Payment Date” shall have the meaning set forth in Section 2.9(c)
hereof.
“Excess Cash Determination Date” shall have the meaning set forth in Section
2.9(c) hereof.
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“Fifth Amendment” shall mean that certain Fifth Amendment to Credit Agreement
and Limited Waiver, dated as of February 23, 2010, by and among the Borrower, the
Agent and the Banks party thereto.
“Fifth Amendment Effective Date” shall mean February 23, 2010.
“Intercreditor Agreement” shall mean that certain Intercreditor and Collateral
Agency Agreement, dated as of April 30, 2009, among the Agent, the Collateral Agent,
the institutional investors signatory thereto as Noteholders and, solely with
respect to Sections 12(a) and 13(a) thereof, the Borrower and NCBFC.
“Irrevocable Reduction Notice” shall have the meanings set forth in Section
2.9(g) hereof.
“Loan to Value Ratio” shall mean, as of any date of determination, the ratio of
(i) the sum of, measured as of such date of determination, (a) the aggregate amount
of Revolving Credit Exposure for all Banks plus (b) the aggregate
outstanding Senior Note Obligations to (ii) the sum of, measured as of such date of
determination, (a) the aggregate unpaid principal amount of all Performing Loans
plus (b) the Borrower’s unrestricted Cash (exclusive of amounts included
therein with respect to deposits in the Borrower’s clearing account and other
accounts where the Borrower is acting as the custodian or in a fiduciary capacity
for the Cash maintained in such accounts).
“Monthly Date” shall mean the first day of each calendar month, provided that,
if any such date is not a Business Day, the relevant Monthly Date shall be the next
succeeding Business Day.
“Performing Loans” shall mean each outstanding loan, lease financing receivable
and letter of credit (including participations in loans, lease financing receivables
and letters of credit) held, or issued with respect to letters of credit, by the
Borrower which is not a Nonperforming Loan and is not “risk rated” worse than 6 in
accordance with the Borrower’s internal policies and procedures in existence on the
Fifth Amendment Effective Date, consistently applied.
“Repayment Plan” shall have the meaning set forth in Section 6.15 hereof.
“Senior Note Amendment” shall mean that certain Seventh Amendment and Limited
Waiver, dated as of February 23, 2010, among the Borrower, NCBFC and the Senior
Noteholders.
“Senior Noteholders” shall mean, at any time of determination, the holders of
the Senior Note Obligations.
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“Senior Note Obligations” shall mean the “Obligations” as defined in the Senior
Note Agreement.”
(b) The Credit Agreement is hereby further amended by deleting the defined terms “Aggregate
Revolving Commitments”, “Commitment Termination Date”, and “Post-Default Rate” set forth in Article
1 (Definitions; Effective Date) in their entirety and substituting in lieu thereof the following:
““Aggregate Revolving Commitments” shall mean, at any time, the sum of the
Revolving Commitments of all Banks then outstanding. On the Fifth Amendment
Effective Date, the Aggregate Revolving Commitments equal $59,847,956.34.
“Commitment Termination Date” shall mean (a) Xxxxx 00, 0000, (x) upon execution
of the Fifth Amendment by all of the Banks holding the Aggregate Revolving
Commitments at such time of determination, December 15, 2010, or (c) such earlier
date on which the Loans may become due and payable pursuant to Article 8 hereof or
on which the Revolving Commitments are terminated pursuant to Section 2.2.
“Post-Default Rate” shall mean in respect of all Loans and all other
outstanding Obligations, a rate per annum equal to (after as well as before
judgment) 3.00% plus the interest rate or letter of credit fee percentage,
as applicable, otherwise applicable thereto.”
(c) The Credit Agreement is hereby further amended by deleting Section 2.1 (Loans) in its
entirety and inserting the following in lieu thereof:
“SECTION 2.1 REVOLVING LOANS. Subject to the terms and conditions set forth
herein, each Bank hereby severally agrees to make Revolving Loans to the Borrower
from time to time during the Availability Period in an aggregate principal amount at
any time that will not result in (i) such Bank’s aggregate Revolving Credit Exposure
exceeding such Bank’s Revolving Commitment or (ii) the sum of the aggregate
Revolving Credit Exposures of all Banks exceeding the Aggregate Revolving
Commitments. During the Availability Period, the Borrower may borrow, prepay (as
provided in Section 2.9 hereof) and reborrow the Revolving Loans in accordance with
the terms and conditions of this Agreement; provided, that, notwithstanding anything
to the contrary contained in this Agreement or any other Loan Document, any
repayment or prepayment of Revolving Loans on or after the Fifth Amendment Effective
Date shall permanently reduce and terminate the Aggregate Revolving Commitments
pursuant to Section 2.2 hereof in an amount equal to the principal amount so prepaid
or repaid; provided, further, that, notwithstanding anything to the contrary
contained in this Agreement or any other Loan Document, the Borrower may not
borrow or reborrow any Loans at any time on or after the Fifth Amendment
Effective Date.”
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(d) The Credit Agreement is hereby further amended by deleting clause (i) of Section 2.4(b)
(Fees) in its entirety and inserting the following in lieu thereof:
“(i) to the Agent, for the account of each Bank, a letter of credit fee with
respect to its participation in each Letter of Credit, which shall accrue at a rate
of 13.27125% per annum on the average daily amount of such Bank’s LC Exposure
(excluding any portion thereof attributable to unreimbursed LC Disbursements)
attributable to such Letter of Credit during the period from and including the date
of issuance of such Letter of Credit to and including the date on which such Letter
expires or is drawn in full (including without limitation any LC Exposure that
remains outstanding after the Commitment Termination Date) and”
(e) The Credit Agreement is hereby further amended by adding the following new subsections (d)
and (e) to Section 2.4 (Fees):
“(d) For each of the following dates on which the Loan to Value Ratio of the
Borrower is greater than the ratio set forth opposite such date, the Borrower shall
pay a fee equal to 0.20% of the aggregate principal amount of the Revolving Credit
Exposure outstanding on such date to the Agent, for the account of each Bank based
on its Pro Rata Share as of such date, which fee shall be paid no later than 10
Business Days following such date of determination:
| Applicable Date | Loan to Value Ratio | |||
February 28, 2010 |
37 | % | ||
April 30, 2010 |
30 | % | ||
June 30, 2010 |
28 | % | ||
September 30, 2010 |
28 | % | ||
(e) If the Borrower shall not have repaid in full in cash all Revolving Credit
Exposure and terminated all Aggregate Revolver Commitments pursuant to Section 2.2
of the Credit Agreement on or before June 30, 2010, then on June 30, 2010 the
Borrower shall pay a fee equal to two percent (2.00%) of the aggregate principal
amount of the Revolving Credit Exposure outstanding on such date to the Agent, for
the account of each Bank based on its Pro Rata Share as of such date.”
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(f) The Credit Agreement is hereby further amended by adding the following sentence to Section
2.9(b) (Optional Prepayments) immediately following clause (iii) thereof:
“All payments and repayments made under this clause (b) are subject to Section
10.19. Each prepayment or repayment made under clause (b) immediately above shall
be applied on a pro rata basis to reduce the outstanding amounts under the Revolving
Commitments of each Bank with a pro rata permanent reduction in the Revolving
Commitment of each Bank corresponding to the amount of each such prepayment.”
(g) The Credit Agreement is hereby further amended by deleting the reference “Within three (3)
Business Days of the receipt by the Borrower or any Subsidiary” contained in Section 2.9(c)
(Mandatory Prepayments) in its entirety and inserting “Within five (5) Business Days of the receipt
by the Borrower” in lieu thereof.
(h) The Credit Agreement is hereby further amended by deleting clause (i) of Section 2.9(c)
(Mandatory Prepayments) in its entirety and inserting the following in lieu thereof:
“(i) Net Cash Sale Proceeds from Asset Sales (other than sales or other
disposition for fair market value of obsolete or worn out equipment or other assets
not necessary for operations disposed of in the ordinary course of business in an
aggregate amount not to exceed $50,000 after the Fifth Amendment Effective Date) to
the extent that the Borrower has Excess Cash; provided, however, no
such payment shall be required under this clause (i) unless such payment amount is
in excess of $500,000. For purposes of determining Excess Cash under this Section
2.9(c)(i), Excess Cash shall be determined as of the close of business on the Friday
immediately prior to the date of receipt of such Net Cash Sale Proceeds, and
adjusted (x) to give pro forma effect to the receipt of such Net Cash Sale Proceeds
and (y) to give effect to the payment of Excess Cash included in such measurement
and paid prior to the date of receipt of such Net Cash Sale Proceeds.”
(i) The Credit Agreement is hereby further amended by deleting the clause immediately
following clause (iv) of Section 2.9(c) (Mandatory Prepayments) in its entirety and inserting the
following thereof:
“the Borrower shall pay one hundred percent (100%) of such proceeds to the
Agent, on behalf of the Banks, and the Senior Noteholders pursuant to Section 10.19,
and the Agent shall, upon receipt of any such proceeds, apply such proceeds in the
manner set forth in clause (d) immediately below, subject to Section 10.19.”
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(j) The Credit Agreement is hereby further amended by inserting the following subsections (e),
(f) and (g) immediately following Section 2.9(d) (Application of Mandatory Prepayments):
“(e) EXCESS CASH. Without duplication of any other payment required under this
Agreement, on each Excess Cash Payment Date listed in the table below, the Borrower
shall pay one hundred percent (100%) of its Excess Cash measured as of the Excess
Cash Determination Date listed opposite thereto (which shall be based on the Cash
balances as of the close of business on the Friday immediately preceding such Excess
Cash Determination Date) to the Agent, on behalf of the Banks, and the Senior
Noteholders pursuant to Section 10.19, and the Agent shall, upon receipt of any such
proceeds, apply such proceeds in the manner set forth in Section 2.9(d), provided
that any repayment or prepayment made with Cash included in the calculation Excess
Cash following the Excess Cash Determination Date and prior to the Excess Cash
Payment Date shall reduce the amount of Excess Cash due on such Excess Cash Payment
Date:
| Excess Cash Determination Date | Excess Cash Payment Date | |
| February 24, 2010 | March 3, 2010 | |
| March 31, 2010 | April 7, 2010 | |
| April 28, 2010 | May 5, 2010 | |
| May 26, 2010 | June 2, 2010 | |
| June 30, 2010 | July 7, 2010 | |
| July 28, 2010 | August 4, 2010 | |
| August 25, 2010 | September 1, 2010 | |
| September 29, 2010 | October 6, 2010 | |
| October 27, 2010 | November 3, 2010 | |
| November 24, 2010 | December 1, 2010 |
(f) SCHEDULED AMORTIZATION. Without duplication of any other payment required
under this Agreement, the Borrower shall repay the Obligations and the Senior Notes
Obligations, in each case in accordance with Section 10.19, to the extent that the
aggregate amount of the Obligations and the Senior Note Obligations exceeds the
amounts set forth in the table below as of the date set forth opposite thereto:
| Aggregate | ||||||||||||
| Aggregate | Amount of | Total Obligations | ||||||||||
| Date of | Amount of | Senior Note | plus Senior Note | |||||||||
| Determination | Obligations | Obligations | Obligations | |||||||||
February 28, 2010 |
$ | 59,847,956.34 | $ | 38,152,043.66 | $ | 98,000,000.00 | ||||||
April 30, 2010 |
$ | 41,527,153.38 | $ | 26,472,846.62 | $ | 68,000,000.00 | ||||||
June 30, 2010 |
$ | 36,641,605.92 | $ | 23,358,394.08 | $ | 60,000,000.00 | ||||||
September 30, 2010 |
$ | 18,320,802.96 | $ | 11,679,197.04 | $ | 30,000,000.00 | ||||||
December 15, 2010 |
$ | 0 | $ | 0 | $ | 0 | ||||||
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Each payment required under this Section 2.9(f) shall be paid on or before such date
of determination to the Agent, on behalf of the Banks, and the Senior Noteholders
pursuant to Section 10.19, and the Agent shall, upon receipt of any such proceeds,
apply such proceeds in the manner set forth in Section 2.9(d).
(g) IRREVOCABLE COMMITMENT REDUCTION. The scheduled amortization payments
required under the preceding clause (f) shall replace in its entirety that certain
Notice of Irrevocable Reduction and Termination dated as of March 30, 2009 (the
“Irrevocable Reduction Notice”).”
(k) The Credit Agreement is hereby further amended by deleting subsections (a), (b) and (c) of
Section 2.12 (Interest) in their entirety and inserting the following in lieu thereof:
“(a) with respect to any Loan at any time outstanding, 13.50%.
(b) Notwithstanding the foregoing, the Borrower shall pay interest and letter
of credit fees for all Loans and all other outstanding Obligations at the applicable
Post Default Rate for the period commencing upon the occurrence of any Event of
Default and continuing until such Event of Default shall have been waived in
accordance with this Agreement or all Obligations shall have been repaid in full and
the Revolving Commitments terminated. In addition, should the Borrower fail to make
any required payment due on September 30, 2010 under Section 2.9(f), then the
Borrower shall pay interest and letter of credit fees for all Loans and all other
outstanding Obligations at the applicable Post Default Rate for the period
commencing upon such breach and continuing until such breach has been cured in
accordance with Section 8.1 (or all Obligations shall have been repaid in full and
the Revolving Commitments terminated) notwithstanding that such breach is subject to
a 30-day grace period as provided in Section 8.1.
(c) Except as hereinafter provided, accrued interest on each Loan shall be
payable (i) monthly on each Monthly Date and (ii) in the case of any Loan, upon the
payment or prepayment thereof (but only on the principal so paid or prepaid).
Interest which is payable at the Post-Default Rate shall be payable from time to
time on demand of the Agent or any Bank.”
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(l) The Credit Agreement is hereby further amended by deleting Section 4.2 (Conditions to
Subsequent Loans, Swing Line Loans and Letters of Credit ) in its entirety and inserting the
following in lieu thereof:
“SECTION 4.2 CONDITIONS TO SUBSEQUENT LOANS, SWING LINE LOANS AND LETTERS OF
CREDIT. Effective on the Fifth Amendment Effective Date, (a) the Borrower shall
not be permitted to request that the Banks make any Loan or request that the Issuing
Bank issue, amend, renew or extend any Letter of Credit, and (b) the Banks and the
Issuing Bank, as applicable, shall have no obligations to make any Loan to the
Borrower or issue, amend, renew or extend any Letter of Credit.”
(m) The Credit Agreement is hereby further amended by deleting Section 6.9(a) (Minimum
Consolidated Adjusted Net Worth), Section 6.9(b) (Fixed Charge Coverage Ratio), Section 6.9(c)
(Consolidated Debt to Consolidated Adjusted Net Worth), Section 6.9(d) (Minimum Qualified Assets of
Borrower), Section 6.9(e) (Asset Quality) and Section 6.9(g) (Return on Average Assets) in their
entirety and inserting the following the phrase “[intentionally omitted].” in lieu thereof.
(n) The Credit Agreement is hereby further amended by adding the following new clause (k) to
Section 6.9 (Financial Covenants):
“(k) MINIMUM CASH. Maintain, at all times during the periods set forth below,
Cash (exclusive of amounts included therein with respect to deposits in the
Borrower’s clearing account and other accounts where the Borrower is acting as the
custodian or in a fiduciary capacity for the Cash maintained in such accounts) at
the Borrower equal to or greater than the amount set forth opposite thereto:
| Period | Minimum Cash | |||
Fifth Amendment Effective Date through and including June 30,
2010 |
$ | 25,000,000 | ||
July 1, 2010 and all times thereafter |
$ | 20,000,000 | ||
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(o) Article 6 (Affirmative Covenants) of the Credit Agreement is hereby further amended by
adding the following new Section 6.15, Section 6.16 and Section 6.17:
“SECTION 6.15 REPAYMENT PLAN.
(a) On or before April 15, 2010, the Borrower shall provide to the Agent
written information, in form and substance satisfactory to the Agent, describing (i)
assets anticipated to be sold and other sources of cash to repay the Obligations and
the Senior Note Obligations, (ii) the anticipated timeline for the sale of such
assets or receipt of such sources of cash, (iii) the anticipated proceeds from such
asset sales and cash sources, and (iv) projected reductions in Obligations and
Senior Note Obligations resulting from the expected application
of such anticipated proceeds from such asset sales and cash sources, together
with any other information the Agent shall reasonably request in connection
therewith, in each case demonstrating the Borrower’s ability to repay the
Obligations and the Senior Notes Obligations as required under Section 2.9(f)
(collectively, the “Repayment Plan”).
(b) On the first Business Day of each calendar month after the delivery of the
Repayment Plan, the Borrower shall provide to the Agent a written update to any
information contained in the Repayment Plan which shall have changed since the date
of delivery of the Repayment Plan or an update thereto, including information
regarding anticipated asset sale dates, sale terms, the progress of each asset sale,
additional assets to be sold and additional actions to be taken to permanently repay
the Obligations and the Senior Note Obligations as required under Section 2.9(f).
(c) The Borrower’s covenants and obligations under subsection (a) and (b) of
this Section 6.15 shall cease and be deemed satisfied upon the delivery to the Agent
of a duly executed commitment letter for a refinancing transaction to permanently
repay all Obligations and all Senior Note Obligations in full, and receipt of
informal indications of any rating required with respect to such refinancing (which
may be verbal); provided that the Borrower’s covenants and obligations under
subsection (a) and (b) of this Section 6.15 shall be fully reinstated and binding if
such commitment letter is subsequently terminated or the refinancing transaction
contemplated thereby does not permanently repay all Obligations and all Senior Note
Obligations in full by June 30, 2010.
SECTION 6.16 ADDITIONAL REPORTING COVENANTS.
(a) By 4:00 p.m. (Eastern time) each Wednesday, the Borrower shall deliver to
the Agent, or its designated advisors, a Cash balance report as of close of business
(Eastern time) on Friday of the previous week.
(b) By 4:00 p.m. (Eastern time) each Friday, the Borrower shall deliver to the
Agent, or its designated advisors, a 13-week rolling cash flow forecast together
with a detailed variance report with respect to the previous 13-week rolling cash
flow forecast delivered, which shall be in the form previously agreed to by the
Agent and the Borrower.
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(c) On the day that is 30 days following the end of each calendar month, the
Borrower shall deliver to the Agent draft monthly financial statements including
balance sheets, statements of income and statements of shareholders equity, and on
the date that is 45 days following the end of each calendar month, final copies of
such monthly financial statements.
(d) The Borrower shall prepare and deliver to each of the Agent and the Banks,
in form and detail reasonably satisfactory to the Banks, a calculation of the
Borrower’s Loan to Value Ratio as of February 28, 2010, April 30, 2010, June 30,
2010 and September 30, 2010, in each case within 10 Business Days following such
date.
(e) The Borrower shall prepare and deliver to each of the Agent and the Banks,
in form and detail reasonably satisfactory to the Banks, such additional information
(including information provided by the Borrower to its other creditors) regarding
the assets, liabilities, business and financial condition of the Borrower, NCBFC and
their respective Subsidiaries (and projections relating thereto) as shall be
reasonably requested by the Agent or the Banks.
SECTION 6.17 REFINANCING TRANSACTION. The Borrower shall use
commercially-reasonable efforts to pursue, negotiate and close on or before June 30,
2010 a refinancing transaction that will repay in full all outstanding Obligations
and Senior Note Obligations.”
(p) Article 7 (Negative Covenants) of the Credit Agreement is hereby further amended by adding
the following new Sections 7.18 through 7.23:
“SECTION 7.18 NEW DEPOSITORY ACCOUNTS. The Borrower shall not open any new
depository account, securities account or investment account unless such account
shall be maintained at one or more of the Banks.
SECTION 7.19 PAYMENT OF OTHER INDEBTEDNESS.
(a) Notwithstanding anything to the contrary contained in this Agreement or any
other Loan Document, the Borrower shall not make any principal payment to the
holders of the Class A Notes until the Obligations and the Senior Note Obligations
have been repaid in full and the Aggregate Revolving Commitments have been
terminated in full.
(b) The Borrower shall make no principal payments to the Senior Noteholders
unless the Borrower concurrently makes a ratable payment to the Agent, for the
ratable benefit of the Banks, in accordance with the terms of Sections 3(b) and 7(a)
of the Intercreditor Agreement.
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(c) The Borrower shall not, directly or indirectly, (i) make any payments to
any Person not required by a valid and enforceable contract as in effect on the
Fifth Amendment Effective Date or as permitted under the following clause (ii), nor
(ii) enter into any contract requiring payments to be made by the Borrower except in
the ordinary course of business or as part of the transactions contemplated by this
Agreement, including without limitation in furtherance of a
refinancing transaction contemplated hereunder or any transaction contemplated under
the Repayment Plan.
SECTION 7.20 AMENDMENTS TO SENIOR NOTE AGREEMENT, ETC. After the Fifth Amendment
Effective Date, the Borrower shall not, without the written consent of the Majority
Banks, enter into any amendment of, or modification or supplement to, the Senior
Note Agreement, or any related agreements, or enter into any other agreements with
any of the Noteholders or the Trustee with respect to the Senior Note Agreement or
any related agreements, that would have the direct or indirect effect of any of the
following: shortening the date of maturity of any loan or note, increasing the
stated principal amount of any loan or note or adding to such amounts, adding to or
making more onerous the conditions for issuing letters of credit, accelerating the
time or increasing the amount of payment of principal, interest or other amounts
(other than as required herein), increasing the interest rate or effective interest
rate on any Indebtedness (whether by changing a contractual or default rate,
changing a reference or base rate (other than normal fluctuations in such rate as
may be contemplated by changes in the reference rates in the Senior Note Agreement)
or by changing an interest rate spread above a reference rate), increasing the
amount of or imposing additional fees or costs, or adding covenants or other
restrictions or making more onerous existing covenants.
SECTION 7.21 MEETINGS WITH BANKS. The Borrower, NCBFC and their respective
senior management and advisors shall make themselves available for such periodic
meetings as the Banks and the Banks’ attorneys and advisors may reasonably request,
to take place at mutually convenient times, in person or by telephone with
representatives of the Banks and the Banks’ attorneys and advisors and any financial
or other advisor or consultant to the Borrower and NCBFC, to discuss the Borrower’s
and the NCBFC’s business operations and such other matters as such representatives
may reasonably request.
SECTION 7.22 CONTRIBUTIONS TO THE THRIFT. The Borrower (i) shall not make
any voluntary capital contribution to the Thrift (whether directly or through NCBFC)
without the prior written consent of the Majority Banks and (ii) shall,
notwithstanding the limitation in Section 7.9(xiii), be permitted to make a capital
contribution expressly requested in writing by the Office of Thrift Supervision or
other Governmental Authority to the Thrift (whether directly or through NCBFC) in an
aggregate amount up to $10,000,000 without the prior written consent of the Majority
Banks so long as, before and after giving effect to such contribution, no Default or
Event of Default shall have occurred or be continuing.
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SECTION 7.23 NO FEES, ETC. None of the Borrower, its Subsidiaries, NCBFC
or their respective Subsidiaries or Affiliates has paid or will pay, directly or
indirectly, any work fee, administrative agent’s fee or any other fee, charge,
increased interest, premium or other consideration to, or has given or will give any
additional security or collateral to, or has shortened or will shorten the maturity
or average life of any Indebtedness or permanently reduced any borrowing capacity in
favor of or for the benefit of, any creditor of the Borrower, any creditor of any
Affiliate or any agent acting for or on behalf of any such creditors with respect to
the Senior Note Agreement in connection with or as an inducement to enter into the
Senior Note Amendment or similar agreement, other than (a) the fees and payments
described in the Senior Note Amendment and (b) as permitted by the Fifth Amendment,
in each case payable under the terms of, and as disclosed in, the Senior Note
Amendment.”
(q) The Credit Agreement is hereby further amended by deleting Section 8.1 (Payments) in its
entirety and inserting the following in lieu thereof:
“SECTION 8.1 PAYMENTS.
Failure to (a) make any payment or mandatory prepayment of principal of any
Loan when due and as the same shall become due and payable, and, solely with respect
to any mandatory prepayment of principal that may be due on September 30, 2010
pursuant Section 2.9(f), such failure shall continue for a period of 30 days
following the due date thereof, or (b) make any payment of interest upon any Loan,
Note, any fee or other amounts pursuant to this Agreement within five (5) Business
Days after the due date thereof (the “Grace Period); or,”
(r) Article 10 (Miscellaneous Provisions) of the Credit Agreement is hereby further amended by
adding the following new Section 10.18 and Section 10.19:
“SECTION 10.18 MOST FAVORED LENDER CLAUSE. On the Fifth Amendment Effective
Date, each negative and affirmative covenant (together with any defined terms and
schedules related thereto) imposed under, or in connection with, the Senior Notes
Agreement is hereby incorporated into this Agreement and shall apply as if fully set
forth herein. If, after the Fifth Amendment Effective Date, any Senior Noteholder
or other holder of Indebtedness of the Borrower or any Subsidiary (a) imposes any
additional negative or affirmative covenant or event of default (including by
amendment of an existing negative or affirmative covenant or event of default, by
waiver or consent or otherwise) that is more restrictive on the Borrower or any
Subsidiary (or more favorable to such Senior Noteholder or other holder of
Indebtedness) than the covenants or events of default contained in this Agreement,
(b) increases the amount of any fees, interest and/or other economic consideration
to any Senior
13
Noteholder
or other holder of Indebtedness, or (c) adds additional
fees, interest and/or other economic consideration to any Senior Noteholder or other
holder of Indebtedness, then the Borrower shall promptly notify the Agent and each
Bank and (irrespective of such notification) this Agreement shall be deemed
to be amended automatically to incorporate such additional, more restrictive or
more favorable covenant, event of default or other provision (together with any
defined terms and schedules related thereto) as of such date. Notwithstanding the
foregoing, (y) the subsequent amendment, modification, release or termination of any
such covenant, event of default or other provision in such other document or
agreement shall not operate to amend, modify, release or terminate such covenant,
event of default, additional fees, interest or other economic consideration or other
provision as incorporated into this Agreement pursuant hereto without the consent of
the Majority Banks and (z) no provision shall be incorporated by reference herein to
the extent that it would be more favorable to the Borrower, or less favorable to the
Banks, than any provision of this Agreement that would be operative absent such
incorporation.
SECTION 10.19 SHARING PROVISIONS UNDER THE INTERCREDITOR AGREEMENT. As of the
Fifth Amendment Effective Date, a Trigger Event (as defined in the Intercreditor
Agreement) has occurred and the Agent has provided the required notice under Section
3(b) of the Intercreditor Agreement to implement the sharing provisions contained in
Section 3 of the Intercreditor Agreement. Notwithstanding anything to the contrary
contained in the Intercreditor Agreement or this Agreement, the Agent and the Banks
hereby agree that (a) except for the principal payment on the Senior Note
Obligations in the amount of $3,552,767.33 that was paid on the Fifth Amendment
Effective Date, all principal payments (whether voluntary or mandatory) made with
respect to the Secured Obligations (as defined in the Intercreditor Agreement) shall
be allocated to the Banks and the Senior Noteholders in accordance with Section 3(b)
and 7(a) of the Intercreditor Agreement until the Secured Obligations have been paid
in full, notwithstanding that the events giving rise to the Trigger Event may have
been cured, waived or no longer exist, (b) “Shared Payments” (as defined in the
Intercreditor Agreement) shall not include (i) any payments of interest in respect
of the Secured Obligations (as defined in the Intercreditor Agreement) or (ii) any
fees in respect of the Financing Agreements (as defined in the Intercreditor
Agreement), which may be paid directly in accordance with the respective Financing
Agreements (as defined in the Intercreditor Agreement) and (c) with the agreement of
the Agent, as evidenced by execution of a payment letter in the form of Schedule
10.19, the Borrower may make such payments as set forth in such payment letter to
the extent that such payment is made in accordance with Section 3(b) and 7(a) of the
Intercreditor Agreement; provided that such agreement is expressly conditioned upon
the continued agreement of such arrangement by the Senior Noteholders.”
14
(s) The Credit Agreement is hereby further amended by deleting any reference to “Quarterly
Date” or “Quarterly Dates” and replacing each such reference with the phrase “Monthly Date” or
“Monthly Dates”, as applicable.
3. Limited Waiver. Subject to the satisfaction of the conditions precedent set forth
in Section 9 below, the Majority Banks hereby waive the Existing Events of Default. The
Borrower acknowledges and agrees that the waiver contained in the foregoing sentence shall not
waive (or be deemed to be or constitute a waiver of) any other covenant, term or provision in the
Credit Agreement or hinder, restrict or otherwise modify the rights and remedies of the Banks
and/or the Agent following the occurrence of any Default or Event of Default under the Credit
Agreement. In addition, the Majority Banks hereby waive any required notice and any limitations on
the specified dollar amounts of the voluntary reduction of the Aggregate Revolving Commitments made
pursuant to Section 2.2 of the Credit Agreement as of the Fifth Amendment Effective Date as set
forth herein.
4. Termination of LIBOR Option; Additional Covenant and Waiver. Notwithstanding any
term contained in the Credit Agreement or any other Loan Document, on or after the Fifth Amendment
Effective Date, (i) all Loans shall bear interest at the rate set forth in Section 2.12(a) of the
Credit Agreement (as amended hereby) and the Borrower shall have no right to maintain any Loan as a
Base Rate Loan or a LIBOR Loans and (ii) the Borrower hereby waives, and agrees not to exercise nor
have the benefit of, Section 2.8 (Conversion of Loans) of the Credit Agreement.
5. Acknowledgements.
(a) Acknowledgement of Obligations. The Borrower hereby acknowledges, confirms and
agrees that as of the close of business on February 22, 2010, the Borrower was indebted to the
Administrative Agent and the Banks for Loans and other financial accommodations under the Loan
Documents in the following amounts:
| Revolving Loans: | $91,539,188.97 principal plus accrued interest thereon
plus accrued and unpaid fees, costs and expenses due
and owing under the Loan Documents |
| Letters of Credit: | $417,268.00 plus accrued and unpaid fees, costs and
expenses due and owing under the Loan Documents |
All such obligations under the Credit Agreement owing by the Borrower together with interest
accrued and accruing thereon, and all fees, costs, expenses and other charges now or hereafter
payable by the Borrower to the Administrative Agent and each Bank, are unconditionally owing by the
Borrower to each Bank, without offset, defense or counterclaim of any kind, nature or description
whatsoever.
(b) Acknowledgement of Payment of Costs and Fees. The Borrower hereby acknowledges,
confirms and agrees that the Borrower shall pay to the Administrative Agent and each Bank all
reasonable and documented costs, fees, expenses and charges of every kind in connection with the
preparation, negotiation, execution and delivery of this Agreement and any documents and
instruments relating hereto.
15
(c) Acknowledgement of Security Interests. The Borrower hereby acknowledges, confirms
and agrees that Collateral Agent, for itself and the benefit of the Secured Creditors (as defined
in the Security Agreement), has and shall continue to have valid, enforceable and perfected
first-priority liens (subject to Permitted Liens and Liens permitted pursuant to Section 7.2 of the
Credit Agreement) upon and security interests in the Collateral granted to Collateral Agent, for
itself and the benefit of the Banks, pursuant to the Loan Documents or otherwise granted to or held
by the Collateral Agent, for itself and the benefit of the Secured Creditors (as defined in the
Security Agreement).
(d) Acknowledgment of No Bank Obligations. The Borrower hereby acknowledges, confirms
and agrees that as a result of amendments contained in this Agreement, the Administrative Agent and
the Banks have no obligations to make, issue or otherwise provide any Loans or other financial
accommodations to the Borrower.
(e) Binding Effect of Documents. The Borrower hereby acknowledges, confirms and
agrees that: (i) each of the Loan Documents to which it is a party has been duly executed and
delivered to the Administrative Agent and the Banks thereto by the Borrower, and each is in full
force and effect as of the Fifth Amendment Effective Date, (ii) the agreements and obligations of
the Borrower contained in the Loan Documents and in this Agreement constitute the legal, valid and
binding obligations of the Borrower, enforceable against the Borrower in accordance with their
respective terms, and the Borrower has no valid defense to the enforcement of the obligations under
the Credit Agreement, except as may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, or other similar laws, now or hereafter in effect, relating to or
affecting creditor rights and subject to equitable principles and (iii) the Administrative Agent
and each Bank are and shall be entitled to the rights, remedies and benefits provided for in the
Loan Documents and under applicable law or at equity.
6. Representations and Warranties. The Borrower hereby represents and warrants in
favor of the Administrative Agent and each Bank as follows:
(a) As of the date hereof, the aggregate principal amount of the Obligations and the Senior
Note Obligations does not exceed $98,000,000, in the aggregate;
(b) The execution, delivery and performance by the Borrower of this Agreement are within the
Borrower’s powers and have been duly authorized by all necessary action on the part of the
Borrower;
(c) This Agreement has been duly executed and delivered by the Borrower and constitutes a
legal, valid and binding obligation of the Borrower enforceable in accordance with its terms,
except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, or other
similar laws, now or hereafter in effect, relating to or affecting creditor rights and subject to
equitable principles;
16
(d) The execution and delivery of this Agreement and performance by the Borrower under the
Credit Agreement, as amended from time to time, (i) do not require any consent or
approval of, registration or filing with, or any other action by, any Governmental Authority,
(ii) will not violate the articles or certificate of incorporation, certificate of organization or
limited partnership, or other registered organizational documents of the Borrower, (iii) will not
violate any requirement of law except for violation that could not reasonably be expected to have a
Material Adverse Effect, and (iv) will not violate or result in a default or require any consent or
approval under any indenture, agreement or other instrument binding upon the Borrower or its
property, or give rise to a right thereunder to require any payment to be made by the Borrower,
except for violations, defaults or the creation of such rights that could not reasonably be expect
to have a Material Adverse Effect;
(e) After giving effect to the waiver set forth in Section 3 hereof, no event has occurred or
is continuing, that would constitute a Default or an Event of Default under the Credit Agreement or
any other Loan Documents;
(f) Except as expressly set forth herein or in the Senior Note Amendment, none of the
Borrower, its Subsidiaries, NCBFC and any of their respective Subsidiaries or Affiliates has paid
or will pay, directly or indirectly, any fee, charge, increased interest or other consideration to,
or given any additional security or collateral to, or shortened the maturity or average life of any
Indebtedness or permanently reduced any borrowing capacity in favor of or for the benefit of, any
creditor of the Borrower, its Subsidiaries, NCBFC or any of their respective Subsidiaries or
Affiliates as a condition to, or otherwise in connection with, the execution or delivery of this
Agreement or the Senior Note Amendment;
(g) Schedule 6(g) hereto sets forth a complete and correct list of all outstanding
Indebtedness of the Borrower, its Subsidiaries and NCBFC, in each case as obligors, as of January
31, 2010 (including with respect thereto, identification of the obligor(s) and the payee or
creditor with respect to such Indebtedness, whether such Indebtedness is secured, guaranteed or
subordinated to any other Indebtedness of the Borrower, its Subsidiaries and NCBFC and the dates
and amounts of mandatory repayments of such Indebtedness (whether by amortization payment or at
maturity)), since which date there has been no material change in the amounts, interest rates,
sinking funds, installment payment or maturities of the Indebtedness of the Borrower, its
Subsidiaries and NCBFC, except as set forth on such Schedule 6(g). Schedule 6(g)
hereto sets forth a complete and correct list of all Liens on property of the Borrower, its
Subsidiaries and NCBFC as of January 31, 2010 that secure Indebtedness of any Person, and
identifying in each case the obligor(s) with respect to such Indebtedness, the property subject to
such Liens and the payee or creditor with respect to such Indebtedness, since which date there has
been no material change in the information set forth therein, except as set forth on such
Schedule 6(g); and
(h) There are no actions, suits, proceedings, claims or disputes pending or, to the knowledge
of the Borrower or NCBFC after due and diligent investigation, threatened or contemplated, at law,
in equity, in arbitration or before any Governmental Authority, by or against the Borrower, its
Subsidiaries or NCBFC or against any of their respective properties or revenues that (i) purport to
affect or pertain hereto, or to this Agreement, any Loan Document, the Senior Note Agreement or the
Senior Note Amendment, or any of the transactions
contemplated hereby or thereby, or (ii) either individually or in the aggregate, if determined
adversely, could reasonably be expected to have a Material Adverse Effect.
17
7. Advice of Counsel. The Borrower acknowledges that the Borrower (a) has been
advised by the Administrative Agent to engage independent counsel of its own choosing to obtain
legal advice with respect to this Agreement, (b) has obtained, or has had every opportunity to
obtain, legal advice from independent counsel of its own choosing with respect to this Agreement
(and to the extent it has chosen not to obtain legal advice of its own counsel, this choice was
made freely and in knowing contradiction of the suggestion of the Administrative Agent), (c) has
read this Agreement in full and final form, and (d) has had this Agreement fully explained to it to
its satisfaction.
8. Limitations. Except for the limited waiver and other modifications expressly set
forth herein, the Credit Agreement and all other existing Loan Documents shall remain unchanged and
in full force and effect and the Administrative Agent and each Bank expressly reserve the right to
require strict compliance with the terms of the Credit Agreement and the other Loan Documents. The
limited waiver contained herein is limited to the precise terms hereof, and none of the
Administrative Agent or any Bank is obligated to consider or agree to any additional request by the
Borrower for any other waiver with respect to the Credit Agreement.
9. Conditions to Effectiveness of this Agreement. This Agreement shall become
effective as of the date (the “Effective Date”) on which each of the following conditions
precedent shall have been satisfied or duly waived:
(a) the Administrative Agent shall have received evidence, in form and substance satisfactory
to the Administrative Agent, that as of the date hereof, the aggregate principal amount of the
Obligations and the Senior Note Obligations does not exceed $98,000,000, in the aggregate;
(b) the Administrative Agent shall have received evidence, in form and substance satisfactory
to the Administrative Agent, that the Senior Noteholders have received a principal payment with
respect to the Senior Notes Obligations in an amount equal to $3,552,767.33, which shall not be
required to be shared with the Banks under the Intercreditor Agreement or Section 10.19 of the
Credit Agreement;
(c) the Administrative Agent shall have received, in form and substance satisfactory to the
Administrative Agent, duly executed counterparts of this Agreement from the Borrower and the
Majority Banks on or before the Effective Date;
(d) the Administrative Agent shall have received on or before the Effective Date the Senior
Note Amendment in form and substance satisfactory to the Administrative Agent and the Majority
Banks;
18
(e) the Borrower shall have paid all reasonable and documented fees, costs and expenses
incurred in connection with this Agreement and any other Loan Documents that have
been invoiced and are required to be paid hereunder or under the Credit Agreement (including,
without limitation, legal fees and expenses) and that have been presented to the Borrower prior to
the Effective Date;
(f) No injunction, writ, restraining order or other order of any nature prohibiting, directly
or indirectly, the consummation of the transactions contemplated herein shall have been issued and
remain in force by any Governmental Authority against the Borrower or NCB Capital; and
(g) The representations and warranties made or deemed made by the Borrower under this
Agreement shall be true and correct in all material respects.
10. Effect on the Loan Documents.
(a) The Credit Agreement and each of the other Loan Documents shall be and remain in full
force and effect in accordance with their respective terms (except as expressly modified hereby)
and hereby are ratified and confirmed in all respects. The execution, delivery, and performance of
this Agreement shall not operate, except as expressly set forth herein, as a modification or waiver
of any right, power, or remedy of the Administrative Agent or any Bank under the Credit Agreement
or any other Loan Document. The waivers and modifications herein are limited to the specifics
hereof, shall not apply with respect to any facts or occurrences other than those on which the same
are based, shall not excuse future non-compliance with the Loan Documents, and shall not operate as
a consent to any further or other matter under the Loan Documents. To the extent any provision in
the Loan Documents restricts or otherwise prohibits certain acts by any Loan Party during an Event
of Default, those provisions shall remain in full force and effect and are not waived, modified or
excused unless specifically provided for in this Agreement.
(b) Upon and after the Effective Date, each reference in the Credit Agreement to “this
Agreement,” “hereunder,” “herein,” “hereof” or words of like import referring to the Credit
Agreement, and each reference in the other Loan Documents to “the Credit Agreement,” “thereunder,”
“therein,” “thereof” or words of like import referring to the Credit Agreement, shall mean and be a
reference to the Credit Agreement as modified hereby.
(c) To the extent that any terms and conditions in any of the Loan Documents shall contradict
or be in conflict with any terms or conditions of the Credit Agreement, after giving effect to this
Agreement, such terms and conditions are hereby deemed modified or amended accordingly to reflect
the terms and conditions of the Credit Agreement as modified hereby.
11. Further Assurances. The Borrower and NCBFC will cooperate with the Administrative
Agent and the Banks and execute such further instruments and documents as the Administrative Agent
and the Banks shall reasonably request to carry out to their satisfaction the transactions
contemplated by this Agreement.
19
12. Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
13. Loan Document. This Agreement shall be deemed to be a Loan Document for all
purposes.
14. RELEASE BY THE BORROWER AND NCBFC. Effective on the date hereof, each of the
Borrower and NCBFC hereby waives, releases, remises and forever discharges the Administrative
Agent, each other Agent, Swing Line Lender, Issuing Bank, each Bank and each of their respective
Affiliates, and each of the officers, directors, employees, and professionals of each Bank, the
Administrative Agent, each other Agent, Swing Line Lender, Issuing Bank, each Bank and their
respective Affiliates (collectively, the “Releasees”), from any and all claims, demands,
obligations, liabilities, causes of action, damages, losses, costs and expenses of any kind or
character, known or unknown, past or present, liquidated or unliquidated, suspected or unsuspected,
which the Borrower or NCBFC ever had from the beginning of the world, now has or might hereafter
have against any such Releasee which relates, directly or indirectly to the Credit Agreement, any
other Loan Document, or to any acts or omissions of any such Releasee relating to the Credit
Agreement or any other Loan Document, except for the duties and obligations expressly set forth in
this Agreement or with respect to any act or omission that is taken or occurs after the Effective
Date.
15. Time of Essence. Time is of the essence in the payment and performance of each of
the obligations of the Borrower and with respect to all covenants and conditions to be satisfied by
the Borrower in this Agreement and all documents, acknowledgments and instruments delivered in
connection herewith.
16. Integration. This Agreement (together with the other Loan Documents (each as
amended, supplemented or otherwise modified from time to time)) sets forth in full the terms of
agreement between the parties and is intended as the full, complete and exclusive contract
governing the relationship between the parties with respect to the transactions contemplated
herein, superseding all other discussions, promises, representations, warranties, agreements and
understandings, whether written or oral, between the parties with respect thereto.
20
17. No Waiver; Cumulative Remedies. No failure to exercise and no delay in exercising,
on the part of the Administrative Agent or any Bank, any right, remedy, power or privilege
hereunder, shall operate as a waiver thereof; nor shall any single or partial exercise of any
right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. The rights, remedies, powers and
privileges herein provided are cumulative and not exclusive of any rights, remedies, powers and
privileges provided by law.
18. Severability. Wherever possible, each provision of this Agreement shall be
interpreted in such a manner as to be effective and valid under applicable law, but if any
provision of this Agreement shall be prohibited by or invalid under applicable law, such
provision shall be ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this Agreement.
19. Counterparts. This Agreement may be executed by one or more of the parties hereto
on any number of separate counterparts, each of which shall be deemed an original and all of which,
taken together, shall be deemed to constitute one and the same instrument. Delivery of an executed
counterpart of this Agreement by facsimile transmission or other electronic transmission shall be
as effective as delivery of a manually executed counterpart hereof.
[signature pages follow]
21
IN WITNESS WHEREOF, the parties hereto have caused their respective duly authorized officers
or representatives to execute and deliver this Agreement as of the day and year first written
above.
| NATIONAL CONSUMER COOPERATIVE BANK, as Borrower |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| Acknowledged and agreed this 23rd day of February, 2010: NCB FINANCIAL CORPORATION |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| SUNTRUST BANK, as Administrative Agent and a Bank |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| BANK OF AMERICA, N.A., as a Bank |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| PNC BANK, NATIONAL ASSOCIATION., as a Bank |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| WACHOVIA BANK, N.A., as a Bank |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK NEW YORK BRANCH, as a Bank |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| UNION BANK, N.A., as a Bank |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| JPMORGAN CHASE BANK, N.A., as a Bank |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| MANUFACTURERS AND TRADERS TRUST COMPANY, as a Bank |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| CREDIT SUISSE, CAYMAN ISLANDS BRANCH, as a Bank |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| COÖPERATIEVE CENTRALE RAIFFEISEN- BOERENLEENBANK B.A., “RABOBANK INTERNATIONAL”, NEW YORK BRANCH, as a Bank |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| MIZUHO CORPORATE BANK (USA), as a Bank |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| U.S. BANK NATIONAL ASSOCIATION, as a Bank |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| THE BANK OF NOVA SCOTIA, as a Bank |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| FIRST COMMERCIAL BANK, LOS ANGELES BRANCH, as a Bank |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
SCHEDULE 6(g)
