Exhibit 10.40
NATIONAL CONSUMER COOPERATIVE BANK
FIRST AMENDMENT
Dated as of December 15, 2003
to
NOTE PURCHASE AGREEMENT
Dated as of January 8, 2003
Re : $50,000,000 5.52% Senior
Notes
Due January
8, 2009
FIRST AMENDMENT TO NOTE PURCHASE
AGREEMENT
This First
Amendment dated as of
December 15, 2003 (the or this “First Amendment”
) to the Note Purchase Agreement dated as of January 8, 2003 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 First Amendment
(collectively, the “Noteholders” ).
RECITALS:
A.
The Company and each of the
Noteholders have heretofore entered into the Note Purchase
Agreement dated as of January 8, 2003 (the “Note
Agreement” ). The Company has heretofore issued
$50,000,000 of its 5.52% Senior Notes Due January 8, 2009 (the
“Notes” ) dated January 8, 2003 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 First 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 First 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 10.6 of the Note Agreement
shall be and is hereby amended by adding, at the beginning of that
Section, the phrase “Except as set forth in Section
10.9”.
Section 1.2.
Section 10.9 of the Note Agreement
shall be and is hereby amended in its entirety to read as
follows:
Section 10.9.
Class A Note
s.
(a)
No Voluntary
Prepayment . The
Company shall not, directly or indirectly or through any
Subsidiary, purchase, redeem or otherwise retire or acquire, prior
to the respective stated final maturities thereof, the whole or any
part of any Class A Notes
except out of the net cash proceeds
of a substantially concurrent issue or sale of Class B Stock or
Class C Stock, provided, however, that (i) the Company may
prepay the Class A Notes in an amount not to exceed $1,000,000 in
the fiscal year of the Company ending December 31, 2003 if, after
giving effect to such prepayment under this clause (i), no Default
or Event of Default shall have occurred and be continuing; (ii) the
Company may prepay the Class A Notes on or after December 15, 2003
in an amount not to exceed $52,553,329 with funds including the
proceeds of a substantially simultaneous issue of $50,000,000 of
trust preferred securities, if, after giving effect to such
prepayment under clause (i) and this clause (ii), no Default or
Event of Default shall have occurred and be continuing; (iii) the
Company may make annual prepayments of the Class A Notes in its
fiscal years 2004 through 2009, each in the amount of no more than
$2,500,000, if, after giving effect to such prepayment under
clauses (i) and (ii) and this clause (iii), no Default or Event of
Default shall have occurred and be continuing; (iv) the Company may
prepay the Class A Notes on or about December 31, 2010, in an
amount not to exceed $23,989,000, with funds that may include the
proceeds of a substantially simultaneous issue of Subordinated Debt
or trust preferred securities, if after giving effect to such
prepayment under clauses (i), (ii), (iii) and this clause (iv), no
Default or Event of Default shall have occurred and be continuing;
and (v) the Company may make annual prepayments of the Class A
Notes in its fiscal years 2011 through 2019, in the amount of no
more than $5,000,000 in fiscal year 2011 and increasing by 10% in
each succeeding fiscal year, if, after if after giving effect to
such prepayments under clauses (i), (ii), (iii), (iv) and this
clause (v), no Default or Event of Default shall have occurred and
be continuing.
(b)
No Amendments
. The Company shall not amend,
modify, terminate, or waive any of its rights under the Financing
Agreement or any of the Class A Notes (or any other agreement or
similar instrument under or pursuant to which such Class A Notes
have been issued) without the prior written consent of the Required
Holders, except that (i) the Company may enter into an Amended and
Restated Financing Agreement having terms and conditions
substantially identical to those stated in Schedule 10.9,
“Terms of Amended and Restated Financing Agreement”,
attached hereto.
Section 1.3
.
Schedule B to the Note Agreement,
“Defined Terms,” is amended (a) in the definition of
“Consolidated Effective N
