precedent:
(a)
This Amendment No. 2 shall have been
executed and delivered to the Agent by a duly authorized representative of the
Borrower, the Agent and each Bank.
(b)
The Borrower shall have executed and
delivered to each Bank its First Substituted A Note and First Substituted B Note
and with respect to the Swing Line Lender, the First Substituted Swing Line
Note.
(c)
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. 2, no Default or Event of Default shall
exist, shall be true.
(d)
Shea & Gardner, counsel to the Borrower,
shall have delivered its legal opinion to the Agent, in form and substance
satisfactory to the Agent and its counsel.
(e)
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. 2, the First Substituted Notes 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
5
(iii)
An incumbency certificate (with specimen
signatures) with respect to the Borrower.
(f)
All legal matters incident hereto shall
be satisfactory to the Agent and its counsel.
ARTICLE 5.
MISCELLANEOUS.
SECTION 5.1
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", "NOTE(S)" AND "LOAN", SHALL
BE DEEMED TO REFER, RESPECTIVELY, TO THE ORIGINAL LOAN AGREEMENT, AS AMENDED
HEREBY, THE FIRST SUBSTITUTED NOTE(S) AND THE LOANS, AS AMENDED 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 5.2
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 5.3
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: