NATIONAL CONSUMER
COOPERATIVE BANK
F IRST
AMENDMENT
Dated as of December 9, 2003
to
NOTE PURCHASE
AGREEMENT
Dated as of December 28, 1999
R e: $30,000,000 7.68 % Senior Notes
Due December 28, 2005
FIRST
AMENDMENT
THIS FIRST
AMENDMENT dated as of
December 9, 2003 (the or this “First Amendment”
) to the Note Purchase Agreement dated as of December 28, 1999 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” ).
R E C I T A L S:
A.
The Company and each of the
Noteholders have heretofore entered into the Note Purchase
Agreement dated as of December 28, 1999 (the “Note
Agreement” ). The Company has heretofore issued
$30,000,000 of its 7.68 % Senior Notes Due December 28, 2005 (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 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 5D of the Note Agreement
shall be and is hereby amended in its entirety to read as
follows:
5D.
Maintenance of Consolidated
Adjusted Net Worth and Consolidated Effective Net
Worth.
(i)
The Company shall at all times keep
and maintain Consolidated Adjusted Net Worth in an amount not less
than the sum of (a) $147,000,000, plus (b) an aggregate amount
equal to 50% of its Consolidated Net Earnings (but, in each case,
only if a positive number) for each completed fiscal quarter of the
Company beginning with the first fiscal quarter of the Company
ended subsequent to September 30, 2001.
(ii)
The Company shall at all times keep
and maintain Consolidated Effective Net Worth in an amount not less
than the sum of (a) $312,000,000, plus (b) an aggregate amount
equal to 50% of its Consolidated Net Earnings (but, in each case,
only if a positive number) for each completed fiscal quarter of the
Company beginning with the first fiscal quarter of the Company
ended subsequent to September 30, 2001.
Section 1.2.
Each of Sections 6M, 6N and 6O of
the Note Agreement shall be and is hereby amended by adding, at the
beginning of the first sentence of each, the phrase “Except
as permitted by Section 6P”.
Section 1.3.
Section 6P of the Note Agreement
shall be and is hereby amended in its entirety to read as
follows:
Section 6P.
Class A Notes.
(i)
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.
(ii)
No Amendments
. The Company shall not
a
