AMENDMENT NO. 3 TO
THIRD AMENDED AND RESTATED LOAN AGREEMENT
AGREEMENT, made as of the 24th day of May, 2000, 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 BANK, N.A., as Administrative Agent for the Banks (in
such capacity, together with its successors in such capacity, the
"Agent"); and
FLEET BANK, N.A., as Arranger, FIRST UNION NATIONAL BANK, as
Syndication Agent, BANK ONE, as Documentation Agent and SUNTRUST
BANK, NASHVILLE, N.A., CREDIT SUISSE FIRST BOSTON, BANK OF
AMERICA, N.A. and WACHOVIA BANK, N.A., as Co-Agents.
W I T N E S S E T H :
WHEREAS:
(A)The Borrower, the Agent and the banks signatory thereto
(the "Existing Banks") entered into a certain Third Amended and
Restated Loan Agreement dated as of May 28, 1997, which was
amended pursuant to (i) Amendment No. 1 to Third Amended and
Restated Loan Agreement dated as of May 27, 1998, and (ii)
Amendment No. 2 to Third Amended and Restated Loan Agreement
dated as of May 26, 1999 (as so amended, 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, among other things, (i) increase the aggregate Total
Commitment from $350,000,000 to $385,000,000, (ii) extend the A
Commitment Termination Date to May 23, 2003, and (iii) extend the
B Commitment Termination Date to May 23, 2001, and the Banks and
the Agent are willing to amend and supplement the Original Loan
Agreement on the terms and conditions hereinafter set forth;
(C)Simultaneously with the execution and delivery hereof,
Wachovia Bank, N.A. (the "New Bank") has agreed to make loans to
the Borrower in the amounts set forth opposite its name on its
signature page hereto and the Borrower desires to accept the
Total Commitment of the New Bank and to cause the New Bank to be
added as a "Bank" to the Original Loan Agreement as amended
hereby, and the Agent and the Banks are agreeable to the addition
of the New Bank;
(D)Certain of the Existing Banks desire to increase their
respective Total Commitment to the amount set forth opposite its
name on its signature page hereto and the Borrower desires to
accept such increased Total Commitment;
(E) Certain of the Existing Banks desire to reallocate
their respective Total Commitment (as between its A Commitment
and B Commitment) to the amounts set forth opposite its name on
its signature page hereto and the Borrower desires to accept such
reallocation of the Total Commitment of each of them; and
(F) 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. Change in Total Commitments.
Section 1.1 Total Commitments. From and after the date
hereof, for purposes of the Loan Agreement, the Total Commitment
of each Bank shall be the sum of the amounts set forth opposite
each Bank's name on the signature pages hereto as the same may be
reduced pursuant to the terms of the Loan Agreement, and, with
respect to each Bank (other than the New Bank), such amount shall
supersede and be deemed to amend the amount of its respective
Total Commitment as set forth opposite its name on the signature
pages to the Original Loan Agreement.
Section 1.2 New Bank. The New Bank agrees with the
Borrower, the Banks and the Agent that (i) it will abide by the
terms of the Original Loan Agreement as amended hereby, and (ii)
the Loan Agreement shall be binding upon, inure to the benefit
of, and be enforceable by and against it.
Section 1.3 Adjustment of Outstanding Loans. If any
Loans are outstanding under the Original Loan Agreement on the
date hereof, the Banks shall on the date hereof, at the direction
of the Agent, make appropriate adjustments among themselves in
order to insure that the amount (and type) of the Loans
outstanding to the Borrower from each Bank under the Loan
Agreement (as of the date hereof) are proportionate to the
aggregate amount of all of the Total Commitments, after giving
effect to the additional Total Commitment of the New Bank, the
increased amount of the aggregate Total Commitments and the
reallocation of the amounts of the Total Commitment of certain of
the Banks. The Borrower agrees and consents to the terms of this
Section 1.3.
Article 2. Amendments to Original Loan Agreement; Third
Substituted Notes.
Section 2.1 The Original Loan Agreement is hereby amended
as follows:
(a) The phrase "the amount set forth opposite such
Bank's name on the signature pages hereto" appearing in the
definition of the terms "A Commitment" and "B Commitment" in
Article 1 of the Original Loan Agreement shall be deemed to refer
to the amounts set forth opposite each Bank's name on the
signature pages hereto.
(b) The definition of "A Commitment Termination Date"
appearing in Article 1 is amended by deleting the date "May 24,
2002 and substituting therefor the date "May 23, 2003".
(c) The definition of "B Commitment Termination Date"
appearing in Article 1 is amended by deleting the date "May 24,
2000" and substituting therefor the date "May 23, 2001".
(d) Subsection 2.12(c) (re Additional Interest) is
amended by deleting the amount "$140,000,000" in each place it
appears therein and substituting therefor the amount
"$154,000,000".
(e) Section 2.13 is deleted in its entirety and there
is substituted therefor the following:
"(a) The A Loans made by each Bank shall be
evidenced by a single promissory note of the Borrower (each, a
"Third Substituted A Note" and, collectively, the "Third
Substituted A Notes") in substantially the form of Exhibit A-1
annexed to Amendment No. 3 to Third Amended and Restated Loan
Agreement dated as of May 24, 2000 by and among the Borrower, the
banks signatory thereto and the Agent ("Amendment No. 3"). Each
Third Substituted A Note shall be dated the date of Amendment No.
3, shall be payable to the order of such Bank in a principal
amount equal to such Bank's A Commitment as in effect on the date
of Amendment No. 3 and shall otherwise be duly completed. All A
Loans made by each Bank hereunder and all payments and
prepayments made on account of the principal thereof, and all
conversions of such A Loans shall be recorded by such Bank on the
schedule attached to the relevant Third Substituted A Note
(provided that any failure by such Bank to make any such
endorsement shall not affect the obligations of the Borrower
hereunder or under such Third Substituted A Note in respect of
such A Loans).
(b) The B Loans made by each Bank shall be
evidenced by a single promissory note of the Borrower (each, a
"Third Substituted B Note" and, collectively, the "Third
Substituted B Notes") in substantially the form of Exhibit A-2
annexed to Amendment No. 3. Each Third Substituted B Note shall
be dated the date of Amendment No. 3, shall be payable to the
order of such Bank in a principal amount equal to such Bank's B
Commitment as in effect on the date of Amendment No. 3 and shall
otherwise be duly completed. All B Loans made by each Bank
hereunder and all payments and prepayments made on account of the
principal thereof, and all conversions of such B Loans shall be
recorded by such Bank on the schedule attached to the relevant
Third Substituted B Note (provided that any failure by such Bank
to make any such endorsement shall not affect the obligations of
the Borrower hereunder or under such Third Substituted B Note in
respect of such B Loans).
(c) The Swing Line Loans made by the Swing Line
Lender shall be evidenced by a single promissory note of the
Borrower (the "Third Substituted Swing Line Note") substantially
in the form of Exhibit A-3 annexed to Amendment No. 3. The Third
Substituted Swing Line Note shall be dated the date of Amendment
No. 3, shall be payable to the order of the Swing Line Lender in
a principal amount equal to the Swing Line Loan Commitment and
shall be otherwise duly completed. All Swing Line Loans made by
the Swing Line Lender hereunder and all payments and prepayments
on account of the principal thereof shall be recorded by the
Swing Line Lender on the schedule attached to the Third
Substituted Swing Line Note (provided, that any failure by the
Swing Line Lender to make such endorsement shall not affect the
obligations of the Borrower hereunder or under the Third
Substituted Swing Line Note)."
Section 2.2 In order to evidence the Loans and the Swing
Line Loan, as amended hereby, the Borrower shall execute and
deliver to each Bank, as the case may be, simultaneously with the
execution and delivery hereof, promissory notes payable to the
order of such Bank in substantially the form of Exhibits A-1, A-2
and A-3 (in the case of the Swing Line Lender) annexed hereto
(hereinafter referred to individually as a "Third Substituted
Note" and collectively as the "Third Substituted Notes"). Each
of the Banks (other than the New Bank) shall, upon the execution
and delivery by the Borrower of its applicable Third Substituted
Notes as herein provided, mark the Second Substituted Notes
delivered to it in connection with Amendment No. 2 to Third
Amended and Restated Loan Agreement dated as of May 26, 1999
"Replaced by Third Substituted Note" and return them to the
Borrower.
Section 2.3 (a) All references in the Original Loan
Agreement or any other Loan Document to the "Loan(s)", the "A
Note(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 Third Substituted A
Note(s), the Third Substituted B Note(s), the Third Substituted
Swing Line Note, the Third Substituted Note(s) and the Loan
Documents as defined in the Original Loan Agreement together
with, and as amended by, this Amendment No. 3, the Third
Substituted Notes and all agreements, documents and instruments
delivered pursuant thereto or in connection therewith.
(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 2.4 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 3. Representations and Warranties.
The Borrower hereby confirms, reaffirms 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 4. Conditions to Effectiveness of this
Agreement.
This Amendment No. 3 to Third 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. 3 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 Third Substituted A Note and Third Substituted B
Note and with respect to the Swing Line Lender, the Third
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. 3, 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. 3, the 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
(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 Third 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:
Title:
[SIGNATURES CONTINUED ON FOLLOWING PAGES]
A Commitment FLEET BANK, N.A.,
as Administrative Agent and as a Bank
$19,000,000 and as Swing Line Lender
By:
Name: Thomas J. Levy
Title: Vice President
B Commitment Lending Office for Prime Rate
Loans and LIBOR Loans and
$28,500,000 Address for Notices:
1185 Avenue of the Americas
New York, New York 10036
Attn: Mr. Thomas J. Levy
Vice President
Telephone No.: 212-819-5751
Telecopier No.: 212-819-4112
A Commitment FIRST UNION NATIONAL BANK, as
Syndication Agent and as a Bank
$16,000,000
By:
Name:
Title:
B Commitment Lending Office for Prime Rate
Loans and LIBOR Loans and
$24,000,000 Address for Notices:
First Union National Bank
Non-Profit Financial Services Group
1970 Chain Bridge Road
McLean, Virginia 22102
Attn.: Ms. Patti Lenahan
Telephone No.: 703-760-6878
Telecopier No.: 703-760-5549
A Commitment BANK ONE, NA,
as Documentation Agent and as a Bank
$16,000,000
By:
Name:
Title:
B Commitment
$24,000,000
Lending Office for Prime Rate
Loans and LIBOR Loans and
Address for Notices:
Bank One, NA
One Bank One Plaza/Suite 0155
Chicago, Illinois 60670
Attn.: Mr. Steven D. Franklin
Director
Telephone No.: 312-732-7949
Telecopier No.: 312-732-6222
A Commitment SUNTRUST BANK, NASHVILLE, N.A.,
as Co-Agent and as a Bank
$16,000,000
By:
Name:
Title:
B Commitment
$24,000,000
Lending Office for Prime Rate
Loans and LIBOR Loans and
Address for Notices:
SunTrust Bank, Nashville, N.A.
201 Fourth Avenue North
Nashville, Tennessee 37219
Attn.: Mr. Richard B. Boring, Jr.
Vice President
Telephone No.: 615-748-4314
Telecopier No.: 615-748-5161
A Commitment CREDIT SUISSE FIRST BOSTON,
as Co-Agent and as a Bank
$14,000,000
By:
Name:
Title:
B Commitment By:
Name:
$21,000,000 Title:
Lending Office for Prime Rate
Loans and LIBOR Loans and
Address for Notices:
Credit Suisse First Boston
11 Madison Avenue/20th Floor
New York, New York 10010-3629
Attn.: Mr. Jay Chall
Telephone No.: 212-325-9010
Telecopier No.: 212-325-8320
A Commitment BANK OF AMERICA, N.A.,
as Co-Agent and as a Bank
$14,000,000
By:
Name:
Title:
B Commitment Lending Office for Prime Rate
Loans and LIBOR Loans and
$21,000,000 Address for Notices:
Bank of America, N.A.
901 Main Street/66th Floor
Dallas, Texas 75202
Attn.: Ms. Mary Pat Riggins
Vice President
Telephone No.: 214-209-0585
Telecopier No.: 214-209-0604
A Commitment WACHOVIA BANK, N.A.,
as Co-Agent and as a Bank
$14,000,000
By:
Name:
Title:
B Commitment Lending Office for Prime Rate
Loans and LIBOR Loans and
$21,000,000 Address for Notices:
Wachovia Bank, N.A.
191 Peachtree Street, N.E.
Atlanta, Georgia 30303
Attn.: Mr. Mark A. Edwards
Senior Vice President
Telephone No.: 404-332-5137
Telecopier No.: 404-332-5905
A Commitment PNC BANK, NATIONAL ASSOCIATION
$12,000,000
By:
Name:
Title:
B Commitment Lending Office for Prime Rate
Loans and LIBOR Loans and
$18,000,000 Address for Notices:
PNC Bank, National Association
1600 Market Street/22nd Floor
Philadelphia, Pennsylvania 19103
Attn.: Mr. Eric G. Erickson
Vice President
Telephone No.: 215-585-5961
Telecopier No.: 215-585-6987
A Commitment COOPERATIEVE CENTRALE RAFFEISEN-
BOERENLEENBANK B.A., Rabobank
$10,000,000 International, New York Branch
By:
Name:
Title:
By:
Name:
Title:
B Commitment Lending Office for Prime Rate
Loans and LIBOR Loans and
$15,000,000 Address for Notices:
Rabobank Nederland New York Branch
245 Park Avenue/37th Floor
New York, New York 10167
Attn: Mr. Timothy O'Brien
Vice President
Telephone No.: 212-916-7826
Telecopier No.: 212-808-2585
With a copy to:
c/o Rabo Support Services
10 Exchange Place
Jersey City, New Jersey 07302
Attention: Corporate Services
A Commitment DG BANK DEUTSCHE
GENOSSENSCHAFTBANK A.G
$8,000,000 CAYMAN ISLANDS BRANCH
By:
Name:
Title:
B Commitment By:
Name:
$12,000,000 Title:
Lending Office for Prime Rate
Loans and LIBOR Loans and
Address for Notices:
DG Bank Deutsche Genossenschaftbank AG
Cayman Islands Branch
609 Fifth Avenue
New York, New York 10017
Attn: Edward Thome
Assistant Vice President
Telephone No.: 212-745-1464
Telecopier No.: 212-745-1422/1566
A Commitment UNION BANK OF CALIFORNIA, N.A.
$8,000,000
B Commitment By:
Name: James L. Chappel
$12,000,000 Title: Vice President
Lending Office for Prime Rate
Loans and LIBOR Loans and
Address for Notices:
Union Bank of California, N.A.
445 So. Figueroa Street
Los Angeles, California 90071
Attn: James L. Chappel
Vice President
Telephone No.: 213-236-4086
Telecopier No.: 213-236-5548
A Commitment ALLFIRST BANK
$7,000,000
By:
Name:
Title:
B Commitment Lending Office for Prime Rate
Loans and LIBOR Loans and
$10,500,000 Address for Notices:
Allfirst Bank
Financial Institutions Division
P.O. Box 1596 (101-710)
Baltimore, Maryland 21203
Attn: Ms. Florence Jenkins
Financial Institutions Officer
Telephone No.: 410-244-4437
Telecopier No.: 410-244-4234
EXHIBITS
A-1 Form of Third Substituted A Note
A-2 Form of Third Substituted B Note
A-3 Form of Third Substituted Swing Line Note
EXHIBIT A-1 TO AMENDMENT NO. 3
TO THIRD AMENDED AND RESTATED LOAN AGREEMENT
BY AND AMONG
NATIONAL CONSUMER COOPERATIVE BANK
AND
CERTAIN BANKS NAMED THEREIN
AND
FLEET BANK, N.A., AS AGENT FOR THE BANKS
FORM OF THIRD SUBSTITUTED A NOTE
[A Commitment Amount] Due May 23, 2003
FOR VALUE RECEIVED, NATIONAL CONSUMER COOPERATIVE BANK D/B/A
NATIONAL COOPERATIVE BANK (the "Borrower"), hereby promises to
pay to the order of [__________________] (the "Bank") by payment
to the Agent for the account of the Bank the principal sum of
[amount of A Commitment] ($__________) Dollars (or such lesser
amount as shall equal the aggregate unpaid principal amount of
the A Loans made by the Bank under the Loan Agreement hereinafter
defined, shown on the schedule annexed hereto and any
continuation thereof), in lawful money of the United States of
America and in immediately available funds on the date or dates
determined as provided in the Loan Agreement but in no event
later than May 23, 2003.
The Borrower further promises to pay to the order of the
Bank by payment to the Agent for the account of the Bank interest
on the unpaid principal amount of each Loan from the date such
Loan is made until paid in full, payable at such rates and at
such times as provided for in the Loan Agreement.
The Bank has been authorized by the Borrower to record on
the schedules annexed to this A Note (or on any continuation
thereof) the amount, type, due date and interest rate of each A
Loan made by the Bank under the Loan Agreement and the amount of
each payment or prepayment of principal and the amount of each
payment of interest of each such A Loan received by the Bank, it
being understood, however, that failure to make any such notation
shall not affect the rights of the Bank or the obligations of the
Borrower hereunder or under the Loan Agreement in respect of such
Loans. Such notations shall be deemed correct, absent manifest
error.
This A Note is one of the Notes referred to in the Third
Amended and Restated Loan Agreement dated as of May 28, 1997, as
amended by Amendment No. 1 to Third Amended and Restated Loan
Agreement dated as of May 27, 1998, Amendment No. 2 to Third
Amended and Restated Loan Agreement dated as of May 26, 1999, and
Amendment No. 3 to Third Amended and Restated Loan Agreement
dated as of May 24, 2000 (as so amended, the "Loan Agreement")
among the Borrower, the Banks and Fleet Bank, N.A., as Agent for
the Banks and evidences the A Loans made by the Bank thereunder.
[This Third Substituted A Note supersedes and is given in
substitution for the Second Substituted A Note dated May 26, 1999
made by the Borrower to the order of the Bank in the original
principal amount of $__________ but does not constitute a
novation, extinguishment or termination of the obligations
evidenced thereby.] Capitalized terms used in this A Note have
the respective meanings assigned to them in the Loan Agreement.
Upon the occurrence of an Event of Default under the Loan
Agreement, the principal hereof and accrued interest hereon shall
become, or may be declared to be, forthwith due and payable in
the manner, upon the conditions and with the effect provided in
the Loan Agreement.
The Borrower may at its option prepay all or any part of the
principal of this A Note before maturity upon and subject to the
terms provided in the Loan Agreement.
The Borrower agrees to pay costs of collection and
reasonable attorneys, fees in case default occurs in the payment
of this A Note.
Presentment for payment, notice of dishonor, protest and
notice of protest are hereby waived.
This A Note has been executed and delivered this 24th day of
May, 2000 in New York, New York, and shall be construed in
accordance with and governed by the internal laws of the State of
New York.
NATIONAL CONSUMER COOPERATIVE BANK D/B/A
NATIONAL COOPERATIVE BANK
By:
Title:
SCHEDULE TO THIRD SUBSTITUTED A NOTE
MADE BY NATIONAL CONSUMER COOPERATIVE BANK
IN FAVOR OF _________________
This Note evidences the Loans made under the within
described Agreement, in the principal amounts, of the types
(Prime Rate Loans or LIBOR Loans) and on the dates set forth
below, subject to the payments or prepayments set forth below:
Date Prin. Amt. Due Date Int. Rate Amt. of Balance Notarion
Made of Loan of Loan on Loan Payment Outstanding Made By
EXHIBIT A-2 TO AMENDMENT NO. 3
TO THIRD AMENDED AND RESTATED LOAN AGREEMENT
BY AND AMONG
NATIONAL CONSUMER COOPERATIVE BANK
AND
CERTAIN BANKS NAMED THEREIN
AND
FLEET BANK, N.A., AS AGENT FOR THE BANKS
FORM OF THIRD SUBSTITUTED B NOTE
[B Commitment Amount] Due May 23, 2001
FOR VALUE RECEIVED, NATIONAL CONSUMER COOPERATIVE BANK D/B/A
NATIONAL COOPERATIVE BANK (the "Borrower"), hereby promises to
pay to the order of [_______________] (the "Bank") by payment to
the Agent for the account of the Bank the principal sum of
[amount of B Commitment] ($_________) Dollars (or such lesser
amount as shall equal the aggregate unpaid principal amount of
the B Loans made by the Bank under the Loan Agreement hereinafter
defined, shown on the schedule annexed hereto and any
continuation thereof), in lawful money of the United States of
America and in immediately available funds on the date or dates
determined as provided in the Loan Agreement but in no event
later than May 23, 2001.
The Borrower further promises to pay to the order of the
Bank by payment to the Agent for the account of the Bank interest
on the unpaid principal amount of each Loan from the date such
Loan is made until paid in full, payable at such rates and at
such times as provided for in the Loan Agreement.
The Bank has been authorized by the Borrower to record on
the schedules annexed to this B Note (or on any continuation
thereof) the amount, type, due date and interest rate of each B
Loan made by the Bank under the Loan Agreement and the amount of
each payment or prepayment of principal and the amount of each
payment of interest of each such B Loan received by the Bank, it
being understood, however, that failure to make any such notation
shall not affect the rights of the Bank or the obligations of the
Borrower hereunder or under the Loan Agreement in respect of such
Loans. Such notations shall be deemed correct, absent manifest
error.
This B Note is one of the Notes referred to in the Third
Amended and Restated Loan Agreement dated as of May 28, 1997, as
amended by Amendment No. 1 to Third Amended and Restated Loan
Agreement dated as of May 27, 1998, Amendment No. 2 to Third
Amended and Restated Loan Agreement dated as of May 26, 1999, and
Amendment No. 3 to Third Amended and Restated Loan Agreement
dated as of May 24, 2000 (as so amended, the "Loan Agreement")
among the Borrower, the Banks, and Fleet Bank, N.A., as Agent for
the Banks and evidences the B Loans made by the Bank thereunder.
[This Third Substituted B Note supersedes and is given in
substitution for the Second Substituted B Note dated May 26, 1999
made by the Borrower to the order of the Bank in the original
principal amount of $__________ but does not constitute a
novation, extinguishment or termination of the obligations
evidenced thereby.] Capitalized terms used in this B Note have
the respective meanings assigned to them in the Loan Agreement.
Upon the occurrence of an Event of Default under the Loan
Agreement, the principal hereof and accrued interest hereon shall
become, or may be declared to be, forthwith due and payable in
the manner, upon the conditions and with the effect provided in
the Loan Agreement.
The Borrower may at its option prepay all or any part of the
principal of this B Note before maturity upon and subject to the
terms provided in the Loan Agreement.
The Borrower agrees to pay costs of collection and
reasonable attorneys' fees in case default occurs in the payment
of this B Note.
Presentment for payment, notice of dishonor, protest and
notice of protest are hereby waived.
This B Note has been executed and delivered this 24th day of
May, 2000 in New York, New York, and shall be construed in
accordance with and governed by the internal laws of the State of
New York.
NATIONAL CONSUMER COOPERATIVE BANK
D/B/A NATIONAL COOPERATIVE BANK
By:
Title:
SCHEDULE TO THIRD SUBSTITUTED B NOTE
MADE BY NATIONAL CONSUMER COOPERATIVE BANK
IN FAVOR OF _____________________
This Note evidences the Loans made under the within
described Agreement, in the principal amounts, of the types
(Prime Rate Loans or LIBOR Loans) and on the dates set forth
below, subject to the payments or prepayments set forth below:
Date Prin. Amt. Due Date Int. Rate Amt. of Balance Notarion
Made of Loan of Loan on Loan Payment Outstanding Made By
EXHIBIT A-3 TO AMENDMENT NO. 3
TO THIRD AMENDED AND RESTATED LOAN AGREEMENT
BY AND AMONG
NATIONAL CONSUMER COOPERATIVE BANK
CERTAIN BANKS NAMED THEREIN
AND
FLEET BANK, N.A.,
As AGENT FOR THE BANKS
FORM OF THIRD SUBSTITUTED SWING LINE NOTE
$20,000,000 Due May 23, 2001
FOR VALUE RECEIVED, NATIONAL CONSUMER COOPERATIVE BANK D/B/A
NATIONAL COOPERATIVE BANK (the "Borrower"), hereby promises to
pay to the order of FLEET BANK, N.A. (the "Bank") by payment to
the Bank the principal sum of TWENTY MILLION DOLLARS
($20,000,000) (or such lesser amount as shall equal the aggregate
unpaid principal amount of the Swing Line Loans made by the Bank
under the Loan Agreement hereinafter defined, shown on the
schedule annexed hereto and any continuation thereof), in lawful
money of the United States of America and in immediately
available funds on the date or dates determined as provided in
the Loan Agreement but in no event later than May 23, 2001.
The Borrower further promises to pay to the order of the
Bank by payment to the Bank interest on the unpaid principal
amount of each Swing Line Loan from the date such Swing Line Loan
is made until paid in full, payable at such rates and at such
times as provided for in the Loan Agreement.
The Bank has been authorized by the Borrower to record on
the schedules annexed to this Swing Line Note (or on any
continuation thereof) the amount, due date and interest rate of
each Swing Line Loan made by the Bank under the Loan Agreement
and the amount of each payment of principal and the amount of
each payment of interest of each such Swing Line Loan received by
the Bank, it being understood, however, that failure to make any
such notation shall not affect the rights of the Bank or the
obligations of the Borrower hereunder or under the Loan Agreement
in respect of such Swing Line Loans. Such notations shall be
deemed correct, absent manifest error.
This Swing Line Note is the Swing Line Note referred to in
the Third Amended and Restated Loan Agreement dated as of May 28,
1997, as amended by Amendment No. 1 to Third Amended and Restated
Loan Agreement dated as of May 27, 1998, Amendment No. 2 to Third
Amended and Restated Loan Agreement dated as of May 26, 1999, and
Amendment No. 3 to Third Amended and Restated Loan Agreement
dated as of May 24, 2000 (as so amended, the "Loan Agreement")
among the Borrower, the Banks and Fleet Bank, N.A., as Agent for
the Banks and evidences the Swing Line Loans made by the Bank
thereunder. Capitalized terms used in this Swing Line Note have
the respective meanings assigned to them in the Loan Agreement.
Upon the occurrence of an Event of Default, under the Loan
Agreement, the principal hereof and accrued interest hereon shall
become, or may be declared to be, forthwith due and payable in
the manner, upon the conditions and with the effect provided in
the Loan Agreement.
The Borrower agrees to pay costs of collection and
reasonable attorneys' fees in case default occurs in the payment
of this Swing Line Note.
Presentment for payment, notice of dishonor, protest and
notice of protest are hereby waived.
This Swing Line Note has been executed and delivered this
24th day of May, 2000 in New York, New York, and shall be
construed in accordance with and governed by the laws of the
State of New York.
NATIONAL CONSUMER COOPERATIVE BANK
D/B/A NATIONAL COOPERATIVE BANK
By:
Title:
SCHEDULE TO THIRD SUBSTITUTED SWING LINE NOTE
MADE BY NATIONAL CONSUMER COOPERATIVE BANK
IN FAVOR OF FLEET BANK, N.A.
This Swing Line Note evidences the Swing Line Loans made
under the within described Agreement, in the principal amounts,
and on the dates set forth below, subject to the payments set
forth below:
Date Prin. Amt. Due Date Int. Rate Amt. of Balance Notarion
Made of Loan of Loan on Loan Payment Outstanding Made By