AMENDMENT NO. 1 TO TERM LOAN AGREEMENT
AMENDMENT NO. 1 TO TERM LOAN AGREEMENT dated as of
December 20, 1996 (this "Amendment") between NATIONAL CONSUMER
COOPERATIVE BANK, a banking corporation organized under the laws
of the United States that does business as the National
Cooperative Bank (the "Borrower") and CREDIT SUISSE, a banking
company organized and existing under the laws of Switzerland
having a New York Branch operating under a State of New York
banking charter (the "Bank"), amending the TERM LOAN AGREEMENT
dated as of November 9, 1994 (the "Term Loan Agreement").
Capitalized terms used herein and not otherwise defined herein
shall have the meanings ascribed to them in the Term Loan
Agreement.
WHEREAS, the Borrower has requested to amend the Term
Loan Agreement and the Bank is willing to amend the Term Loan
Agreement on the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and
for other good and valuable consideration the receipt and
sufficiency of which is hereby acknowledged, the Borrower and
Bank agree as follows:
1. Amendment. Upon and after the Effective date (as
defined in Section 2 hereof), the Term Loan Agreement shall be
amended as follows:
(a) Section 6.1(m)(vii) shall be deleted in its
entirety and the following is substituted therefor:
"(vii) At all times, a ratio of Consolidated Debt
to Consolidated Adjusted Net Worth in an amount not
greater than 8.5 to 1.0 until the earlier to occur of:
(i) December 24, 1997, or
(ii) the prepayment in full of the
Borrower's Amended and Restated 8.18%
Series A Senior Notes due June 24, 1997,
and the Borrower's Amended and Restated
8.32% Series B Senior Notes due December
24, 1997,
after which time the Borrower shall have and maintain a
ratio of Consolidated Debt to Consolidated Adjusted Net
Worth in an amount not greater than 10.0 to 1.0. For
purposes of calculating this ratio only, Consolidated
Debt shall include the full balance of mortgage backed
securities sold by the Borrower or any of its
Subsidiaries with any first loss recourse provisions
against the Borrower or any of its Subsidiaries
attached thereto.
For purposes of calculating the ratio set forth in
subsection 6.1(m)(vii) above and in subsection
6.1(m)(viii) below only, "Consolidated Adjusted Net
Worth" shall be reduced by the amount by which the sum
of 75% of (i) 90 day overdue accounts, (ii) non-performing
loans, (iii) real estate owned in substance
foreclosure and other real estate owned in substance
foreclosure and other miscellaneous repossessions and,
(iv) modified loans, exceeds the reserves for credit
losses established by the Borrower and its
Subsidiaries."
(b) Section 6.2(f)(ii) shall be amended by deleting
the word "Declare" appearing as the first word therein and
inserting the phrase "Except as otherwise permitted under the
terms of the Senior Note Agreements, declare" in its place.
2. Effective Date. This Amendment shall become
effective as of the date hereof (the "Effective Date").
3. Representations and Warranties.
(a) The Borrower represents and warrants as follows:
(i) the execution, delivery and performance of this
Amendment: (I) has been duly authorized by all necessary or
appropriate corporate acts or proceedings of the Borrower; (II)
does not violate or conflict with any provision of the Borrower's
articles of incorporation, by-laws, or other organizational
documents, or standing resolutions; (III) does not violate or
result in a breach or default (with the giving of notice, passage
of time, or otherwise) under any contract, applicable to the
Borrower or its assets and (IV) will not violate any order of any
court or governmental authority or agency to which the Borrower
is subject;
(ii) this Amendment is the valid, legal and binding
obligation and agreement of the Borrower, and is enforceable
against the Borrower in accordance with its terms; and
(iii) The Borrower is a duly organized and validly
existing corporation, in good standing in the respective
jurisdiction of its incorporation.
4. Miscellaneous. This Amendment shall be binding on
and inure to the benefit of the parties hereto and their
respective successors and assigns. This Amendment represents the
entire understanding of the parties regarding the subject matter
hereof. The terms and conditions of this Amendment shall not be
terminated or modified or amended orally or by course of conduct
or dealing or in any manner except in a writing that is signed by
the party against whom enforcement is sought.
5. Counterparts. This Amendment may be executed by
the parties hereto in separate counterparts each of which, when
so executed and delivered, shall be deemed to be an original and
all of which, when taken together, shall constitute one and the
same instrument.
6. Ratification. The Term Loan Agreement, as amended
by this Amendment, is and shall continue to be in full force and
effect and is hereby in all respects confirmed, approved and
ratified.
7. GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE.
8. Reference to Agreement. From and after the
Effective Date, each reference in the Term Loan Agreement to
"this Term Loan Agreement", "hereof", "hereunder" or words of
like import, and all references to the Term Loan Agreement in any
and all agreements, instruments, documents, notes, certificates
and other writings of every kind and nature shall be deemed to
mean the Term Loan Agreement as modified and amended by this
Amendment No. 1.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment No. 1 to be duly executed and delivered by their
respective authorized officers or representatives as of the date
first above written.
NATIONAL CONSUMER COOPERATIVE BANK
D/B/A NATIONAL COOPERATIVE BANK
By:
Name:
Title:
CREDIT SUISSE
By:
Name:
Title:
By:
Name:
Title:
Amendment No. 1 to Term Loan Agreement