AMENDMENT NO. 1 TO THIRD AMENDED AND RESTATED LOAN AGREEMENT
AGREEMENT, made as of the 27th day of May, 1998, 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"); and
FLEET BANK, N.A., as Agent for the Banks (in such capacity,
together with its successors in such capacity, the "Agent");
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
(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 $260,000,000 to $290,000,000, (ii) extend
the A Commitment Termination Date to May 26, 2001, and (iii)
extend the B Commitment Termination Date to May 26, 1999, 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,
Bank of Nova Scotia (the "Withdrawing Bank") is terminating its
Total Commitment under the Original Loan Agreement and shall no
longer be deemed a party thereto;
(D) Simultaneously with the execution and delivery hereof,
SunTrust Bank, Nashville, 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;
(E) 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;
(F) 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
(G) All capitalized terms used herein which are not other-
wise 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 Withdrawing Bank. The parties hereto
acknowledge that the Total Commitment of the Withdrawing Bank
under the Original Loan Agreement has been terminated. The
Withdrawing Bank shall have no further duties or obligations
under the Original Loan Agreement after the date hereof. The
Withdrawing Bank shall duly cancel and return to the Borrower the
promissory notes issued to it under the Original Loan Agreement
immediately after it receives payment in full of all amounts
owing to it under the Original Loan Agreement.
Section 1.3 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 the New Bank.
Section 1.4 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 1.4.
Article 2. Amendments to Original Loan Agreement;
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
27, 2000" and substituting therefor the date "May 26, 2001".
(c) The definition of "B Commitment Termination
Date" appearing in Article 1 is amended by deleting the date "May
27, 1998" and substituting therefor the date "May 26, 1999".
(d) The definition of "NCB Mortgage" appearing in
Article 1 is deleted in its entirety and the following is
substituted therefor:
"'NCB Capital' - NCB Capital Corporation, a
Delaware corporation, previously named 'NCB Mortgage
Corporation'."
(e) The definition of "Consolidated Debt"
appearing in Article 1 is amended by (i) deleting clause (d)
thereof in its entirety, (ii)adding the word "and" at the end of
clause (b) thereof, and (iii) deleting "; and" appearing at the
end of clause (c) thereof and inserting a period in its place.
(f) Subsection 2.12(c) (re Additional Interest)
is amended by deleting the amount "$156,000,000" in each place it
appears therein and substituting therefor the amount
"$174,000,000".
(g) 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 "Substituted A Note" and, collectively, the "Substituted A
Notes") in substantially the form of Exhibit A-1 annexed to
Amendment No. 1 to Third Amended and Restated Loan Agreement
dated as of May 27, 1998 by and among the Borrower, the
banks signatory thereto and the Agent ("Amendment No. 1").
Each Substituted A Note shall be dated the date of Amendment
No. 1, 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. 1 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 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
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 "Substituted B Note" and, collectively, the "Substituted B
Notes") in substantially the form of Exhibit A-2 annexed to
Amendment No. 1. Each Substituted B Note shall be dated the
date of Amendment No. 1, 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. 1 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 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 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 "Substituted Swing Line Note")
substantially in the form of Exhibit A-3 annexed to
Amendment No. 1. The Substituted Swing Line Note shall be
dated the date of Amendment No. 1, 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 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 Swing
Line Note)."
(h) Subsection 6.9(g) is deleted in its entirety
and the following is substituted therefor:
"(g) At all times during the periods set
forth below, a ratio of Consolidated Debt to Consolidated
Adjusted Net Worth in an amount not greater than the
respective ratio set forth below opposite each such period:
Maximum Ratio of Consolidated
Debt to Consolidated Adjusted
Period Net Worth
May 27, 1998 through and
including May 26, 1999 8.5 : 1.0
May 27, 1999 through and
including May 26, 2000 9.0 : 1.0
May 27, 2000 and at all
times thereafter 9.5 : 1.0
For purposes of calculating the ratio set forth in
subsection 6.9(g) above, "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
miscellaneous repossessions and, (iv) modified loans, exceed
the reserves for credit losses established by the Borrower
and its Subsidiaries."
(i) Subsection 6.9(h) is deleted in its entirety
and the following is substituted therefor:
"(h) Intentionally Omitted"
(j) Section 7.9 is amended by deleting the period
at the end of clause (xiv) thereof and substituting "; and"
therefor and adding a new clause (xv) reading as follows:
"(xv) 'Equity Investments' provided that (i) the
aggregate amount of such Equity Investments (on a cumulative
basis) does not exceed an amount equal to ten (10%) percent of
Consolidated Adjusted Net Worth as at any date of determination
thereof, after giving effect to any such Equity Investment, and
(ii) no single Equity Investment in any Person may be greater
than $2,000,000. For purposes hereof, Equity Investment(s) shall
mean the amount paid or committed to be paid in connection with
the acquisition of any stock (common or preferred) or other
equity securities of any Person or any obligation convertible
into or exchangeable for a right, option or warrant to acquire
such equity securities."
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 "Substituted Note" and
collectively as the "Substituted Notes"). Each of the Banks
(other than the New Bank) shall, upon the execution and delivery
by the Borrower of its applicable Substituted Note as herein
provided, mark the Notes delivered to it in connection with the
Original Loan Agreement "Replaced by 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 Substituted A Note(s), the
Substituted B Note(s), the Substituted Swing Line Note, the
Substituted Note(s) and the Loan Documents as defined in the
Original Loan Agreement together with, and as amended by, this
Amendment No. 1, the 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.
(c) All references in the Original Loan Agreement
or any other Loan Document to "NCB Mortgage" or "NCB Mortgage
Corporation" shall be deemed to refer to NCB Capital.
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. 1 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. 1 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 Substituted A Note and Substituted B
Note and with respect to the Swing Line Lender, the 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. 1, 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. 1, the Substituted Notes and the trans-
actions 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 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
A Commitment FLEET BANK, N.A.,
as Agent and as a Bank,
$18,000,000 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
$22,000,000 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
Telex No. 62610 NBNA UW
A Commitment CREDIT SUISSE FIRST BOSTON
$15,750,000
By: _______________________________
Name:
Title:
B Commitment By: _______________________________
Name:
$19,250,000 Title:
Lending Office for Prime Rate
Loans and LIBOR Loans and
Address for Notices:
Credit Suisse First Boston
Eleven Madison Avenue
New York, New York 10010
Attn: James E. Lee
Telephone No.: 212-325-9104
Telecopier No.: 212-325-8320
A Commitment COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., Rabobank
$15,750,000 Nederland, New York Branch
By: _______________________________
Name:
Title:
By: _______________________________
Name:
Title:
B Commitment Lending Office for Prime Rate
Loans and LIBOR Loans and
$19,250,000 Address for Notices:
245 Park Avenue
New York, New York 10167
Attn: Ms. Angela Reilly
Vice President
Telephone No.: 212-916-7826
Telecopier No.: 212-309-5139
A Commitment COMERICA BANK
$15,750,000
By:________________________________
Name:
Title:
B Commitment Lending Office for Prime Rate
Loans and LIBOR Loans and
$19,250,000 Address for Notices:
Comerica Bank
500 Woodward Avenue
Detroit, Michigan 48226
Attn.: Diana Pascoe
Customer Assistant
Telephone No.: 313-222-7806
Telecopier No.: 313-222-3330
A Commitment PNC BANK, NATIONAL ASSOCIATION
$14,625,000
By:________________________________
Name:
Title:
B Commitment Lending Office for Prime Rate
Loans and LIBOR Loans and
$17,875,000 Address for Notices:
PNC Bank, National Association
1600 Market Street/21st Floor
Philadelphia, Pennsylvania 19103
Attn.: Robert Giannone
Vice President
Telephone No.: 215-585-7630
Telecopier No.: 215-585-5972
Telex No.: 845 270
A Commitment BANK AUSTRIA AKTIENGESELLSCHAFT
$10,125,000
By:________________________________
Name:
B Commitment Title:
$12,375,000
By:________________________________
Name:
Title:
Lending Office for Prime Rate
Loans and LIBOR Loans and
Address for Notices:
Bank Austria AG
565 Fifth Avenue
New York, New York 10017
Attn.: Robert Melendez, AT
Loan Operations
Telephone No.: 212-880-1173
Telecopier No.: 212-880-1180
Telex No.: 425605
A Commitment FIRST UNION NATIONAL BANK
(formerly Signet Bank)
$9,000,000
By:________________________________
Name:
Title:
B Commitment Lending Office for Prime Rate
Loans and LIBOR Loans and
$11,000,000 Address for Notices:
First Union National Bank
Non-Profit Financial Services Group
1970 Chain Bridge Road
McLean, Virginia 22102
Attn.: Mr. David Ryder
Senior Vice President
Telephone No.: 703-760-6183
Telecopier No.: 703-760-5779
A Commitment SUNTRUST BANK, NASHVILLE, N.A.
$7,875,000
By:________________________________
Name:
B Commitment Title:
$9,625,000
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.: Richard B. Boring, Jr.
Vice President
Telephone No.: 615-748-4314
Telecopier No.: 615-748-5161
A Commitment FIRST NATIONAL BANK OF MARYLAND
$7,875,000
By:_______________________________
Name:
Title:
B Commitment Lending Office for Prime Rate
Loans and LIBOR Loans and
$9,625,000 Address for Notices:
First National Bank of Maryland
Financial Institutions Division
P.O. Box 1596 (101-710)
Baltimore, Maryland 21203
Attn: Ms. Deb Hamilton
Operations Specialist
Telephone No.: 410-244-4434
Telecopier No.: 410-244-4234
A Commitment UNION BANK OF CALIFORNIA, N.A.
$7,875,000
B Commitment By ______________________________
Name: James L. Chappel
Title: Vice President
$9,625,000
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 DG BANK DEUTSCHE GENOSSENSCHAFTBANK
CAYMAN ISLANDS BRANCH
$7,875,000
By:_______________________________
Name:
Title:
B Commitment
By:_______________________________
$9,625,000 Name:
Title:
Lending Office for Prime Rate
Loans and LIBOR Loans and
Address for Notices:
DG Bank Deutsche Genossenschaftbank
Cayman Islands Branch
609 Fifth Avenue
New York, New York 10017
Attn: Edward Thome
cc: Paul Connolly
Telephone No.: 212-745-1464
Telecopier No.: 212-745-1422/1566
Telex No. 666888 MCI
EXHIBITS
A-1 Form of Substituted A Note
A-2 Form of Substituted B Note
A-3 Form of Substituted Swing Line Note
EXHIBIT A-1
TO AMENDMENT NO. 1
TO THIRD AMENDED AND RESTATED LOAN AGREEMENT
BY AND AMONG
NATIONAL CONSUMER COOPERATIVE BANK
AND
CERTAIN BANKS NAMED THEREIN
AND
FLEET BANK, N.A., AS AGENT FOR THE BANKS
FORM OF SUBSTITUTED A NOTE
[A Commitment Amount] Due May 26, 2001
FOR VALUE RECEIVED, NATIONAL CONSUMER COOPERATIVE BANK D/B/A
NATIONAL COOPERATIVE BANK, (the "Borrower"), hereby promises to
pay to the order of [ ] (the "Bank") by payment to the
Agent for the account of the Bank the principal sum of [amount of
A Commitment] ($__________) 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 26,
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 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(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 Substituted A Note supersedes and is given in
substitution for the A Note dated May 28, 1997 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 reason-
able 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 27th day of
May, 1998 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 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:
Prin. Int. Amt. of
Date Made Amt. of Type of Due Date Rate on Payment or Balance Notation
or Converted Loan Loan of Loan Loan Prepayment Outstanding made by
TO AMENDMENT NO. 1
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 SUBSTITUTED B NOTE
[B Commitment Amount] Due May 26, 1999
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 26,
1999.
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 (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 Substituted B Note supersedes and is given in
substitution for the B Note dated May 28, 1997 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 reason-
able 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 27th day of
May, 1998 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 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:
Prin. Int. Amt. of
Date Made Amt. of Type of Due Date Rate Payment or Balance Notation
or Converted Loan Loan of Loan on Loan Prepayment Outstanding made by
EXHIBIT A-3
TO AMENDMENT NO. 1
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 SUBSTITUTED SWING LINE NOTE
$20,000,000 Due May 26, 1999
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 avail-
able funds on the date or dates determined as provided in the
Loan Agreement but in no event later than May 26, 1999.
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 (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 reason-
able 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
28th day of May, 1998 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 SECOND 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:
Prin. Int.
Date Amt. of Due Date Rate on Amt. of Balance Notation
Made Loan of Loan Loan Payment Outstanding made by