AMENDMENT NO, 2 TO THIRD AMENDED AND RESTATED LOAN AGREEMENT
AGREEMENT, made as of the 26th day of May, 1999, 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 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 Amendment No. 1 to Third Amended
and Restated Loan Agreement dated as of May 27, 1998 (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 $290,000,000 to $350,000,000, (ii) extend
the A Commitment Termination Date to May 24, 2002, and (iii)
extend the B Commitment Termination Date to May 24, 2000, 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,
each of Comerica Bank and Bank Austria Aktiengesellschaft (each,
a "Withdrawing Bank" and together, the "Withdrawing Banks") 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,
each of The First National Bank of Chicago and NationsBank, N.A.
(each, a "New Bank" and together, the "New Banks") 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 each New Bank and to cause the New
Banks 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 Banks;
(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 Banks), 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 Banks. The parties hereto
acknowledge that the Total Commitment of the Withdrawing Banks
under the Original Loan Agreement has been terminated. The
Withdrawing Banks shall have no further duties or obligations
under the Original Loan Agreement after the date hereof. Each
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 Banks. Each 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 1.4 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 Banks, 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;
Second 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
26, 2001 and substituting therefor the date "May 24, 2002".
(c) The chart appearing in the definition of
"Applicable Margin" appearing in Article 1 is deleted in its
entirety and the following chart is substituted therefor:
"'Applicable Margin' - on any date, with respect to LIBOR Loans,
the applicable percentage set forth below based upon the Ratings
in effect on such date:
Category 1 A Loans B Loans
A2 or higher by Moody's; .28% .30%
A or higher by S&P
Category 2
A3 by Moody's; .35% .375%
A- by S&P
Category 3
Baal by Moody's; .40% .425%
BBB+ by S&P
Category 4
Baa2 by Moody's .45% .475%
BBB by S&P
Category 5
Baa3 by Moody's .525% .60%
BBB- by S&P
Category 6
Lower than Baa3 by Moody's .775% .825%"
Lower than BBB-by S&P
-or -
No Rating by S&P or Moody's
(d) The definition of "B Commitment Termination
Date" appearing in Article 1 is amended by deleting the date "May
26, 1999" and substituting therefor the date "May 24, 2000".
(e) The chart appearing in the definition of
"Commitment Fee Percentage" appearing in Article 1 is deleted in
its entirety and the following chart is substituted therefor:
"'Commitment Fee Percentage' - on any date, the
applicable percentage set forth below based upon the Ratings in
effect on such date:
Category 1 A Loans B Loan
A2 or higher by Moody's; .12% .10%
A or higher by S&P
Category 2
A3 by Moody's; .15% .125%
A- by S&P
Category 3
Baal by Moody's; .175% .15%
BBB+ by S&P
Category 4
Baa2 by Moody's .20% .175%
BBB by S&P
Category 5
Baa3 by Moody's .275% .20%
BBB- by S&P
Category 6
Lower than Baa3 by Moody's .35% .30%"
Lower than BBB-by S&P
-or -
No Rating by S&P or Moody's
(f) Subsection 2.12(c) (re Additional Interest) is
amended by deleting the amount "$174,000,000" in each place it
appears therein and substituting therefor the amount
"$140,000,000".
(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
"Second Substituted A Note" and, collectively, the "Second
Substituted A Notes") in substantially the form of Exhibit A-1
annexed to Amendment No. 2 to Third Amended and Restated Loan
Agreement dated as of May 26, 1999 by and among the Borrower, the
banks signatory thereto and the Agent ("Amendment No. 2"). Each
Second Substituted A Note shall be dated the date of Amendment
No. 2, 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. 2 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 Second 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 Second 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
"Second Substituted B Note" and, collectively, the "Second
Substituted B Notes") in substantially the form of Exhibit A-2
annexed to Amendment No. 2. Each Second Substituted B Note shall
be dated the date of Amendment No. 2, 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. 2 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
Second 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 Second 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 "Second Substituted Swing Line Note")
substantially in the form of Exhibit A-3
annexed to Amendment No. 2. The Second
Substituted Swing Line Note shall be dated
the date of Amendment No. 2, 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 Second
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 Second Substituted Swing Line
Note)."
(h) Schedule 3.1 is amended by deleting all references
to "Cooperative Funding Corporation" and "NCB Investment
Advisers, Inc.", which were dissolved by the Borrower.
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 "Second Substituted
Note" and collectively as the "Second Substituted Notes"). Each
of the Banks (other than the New Banks) shall, upon the execution
and delivery by the Borrower of its applicable Second Substituted
Notes as herein provided, mark the Substituted Notes delivered to
it in connection with the Original Loan Agreement "Replaced by
Second 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 Second Substituted A
Note(s), the Second Substituted B Note(s), the Second Substituted
Swing Line Note, the Second Substituted Note(s) and the Loan
Documents as defined in the Original Loan Agreement together
with, and as amended by, this Amendment No. 2, the Second
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. 2 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. 2 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 Second Substituted A Note and Second
Substituted B Note and with respect to the Swing Line Lender, the
Second 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. 2, 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. 2, 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 Second 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
$27,000,000 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 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.: Mr. David Ryder
Senior Vice
President
Telephone No.: 703-760-6183
Telecopier No.: 703-760-5779
A Commitment COOPERATIEVE CENTRALE RAIFFEISEN
BOERENLEENBANK B.A.,
Rabobank
$16,000,000 International, New York Branch
By:_____________________________
Name:
Title:
B Commitment Lending Office for Prime Rate
Loans and LIBOR Loans and
$24,000,000 Address for Notices:
245 Park Avenue
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 PNC BANK, NATIONAL ASSOCIATION
$14,000,000
By:___________________________
Name:
Title:
B Commitment Lending Office for Prime Rate
Loans and LIBOR Loans and
$21,000,000 Address for Notices:
PNC Bank, National Association
1600 Market Street/21st Floor
Philadelphia, Pennsylvania
19103
Attn.: Brennan Danile
Assistant Vice President
Telephone No.: 215-585-8523
Telecopier No.: 215-585-5972
A Commitment NATIONSBANK, N.A.
$13,000,000
By:_______________________________
Name:
Title:
B Commitment Lending Office for Prime Rate
Loans and LIBOR Loans and
$19,500,000 Address for Notices:
NationsBank, N.A.
901 Main Street/66th Floor
Dallas, Texas 75202
Attn.: Mary Pat Riggins
Vice President
Telephone No.: 214-209-0585
Telecopier No.: 214-209-0604
A Commitment THE FIRST NATIONAL BANK OF
CHICAGO
$13,000,000
By:_______________________________
Name:
B Commitment Title:
$19,500,000
By:_______________________________
Name:
Title:
Lending Office for Prime Rate
Loans and LIBOR Loans and
Address for Notices:
The First National Bank of
Chicago
One First National Plaza/
Suite 0155
Chicago, Illinois 60670
Attn.: Eric Wiedelman
Corporate Banking
Officer
Telephone No.: 312-732-6222
Telecopier No.: 312-732-5294
A Commitment DG BANK DEUTSCHE
GENOSSENSCHAFTBANK A.G
CAYMAN ISLANDS BRANCH
$8,000,000
By:________________________________
Name:
Title:
B Commitment
$12,000,000
By:________________________________
Name:
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.: 212-745-146
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 FIRST NATIONAL BANK OF
MARYLAND, a division of FMB
Bank
$7,000,000
By:___________________________
Name:
Title:
B Commitment Lending Office for Prime Rate
Loans and LIBOR Loans and
$10,500,000 Address for Notices:
FMB Bank
Financial Institutions
Division
P.O. Box 1596 (101-710)
Baltimore, Maryland 21203
Attn: Ms. Florence Jenkins
Financial Institutions Officer
Telephone No.: 410-244-4437
Telecopier No.: 410-244-4234
EXHIBITS
A-1 Form of Second Substituted A Note
A-2 Form of Second Substituted B Note
A-3 Form of Second Substituted Swing Line Note
EXHIBIT A-1
TO AMENDMENT NO. 2
TO THIRD AMENDED AND RESTATED LOAN AGREEMENT
BY AND AMONG
NATIONAL CONSUMER COOPERATIVE BANK
AND
CERTAIN BANKS NAMED THEREIN
AND
FLEET BANK, N.A., AS AGENT FOR THE BANKS
FORM OF SECOND SUBSTITUTED A NOTE
[A Commitment Amount] Due May 24, 2002
FOR VALUE RECEIVED, NATIONAL CONSUMER COOPERATIVE BANK D/B/A
NATIONAL COOPERATIVE BANK,(the "Borrower"), hereby promises to
pay to the order of [ ] (the "Bank") by payment to the
Agent for the account of the Bank the principal sum of [amount of
A Commitment] ($ ) 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 24, 2002.
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 and Amendment No. 2 to Third
Amended and Restated Loan Agreement dated as of May 26, 1999 (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 Second Substituted A
Note supersedes and is given in substitution for the Substituted
A Note dated May 27, 1998 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 26th day of
May, 1999 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 SECOND 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:
Principal Interest
Amount of Due Date Rate on Amount of Balance Notarion
Date Made Loan of Loan Loan Payment Outstanding Made By
EXHIBIT A-2
TO AMENDMENT NO. 2
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 SECOND SUBSTITUTED B NOTE
[B Commitment Amount] Due May 24, 2000
FOR VALUE RECEIVED, NATIONAL CONSUMER COOPERATIVE BANK D/B/A
NATIONAL COOPERATIVE BANK (the "Borrower"), hereby promises to
pay to the order of E I (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 24, 2000.
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 and Amendment No. 2 to Third
Amended and Restated Loan Agreement dated as of May 26, 1999 (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 Second Substituted B
Note supersedes and is given in substitution for the Substituted
B Note dated May 27, 1998 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 26th day of
May, 1999 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 SECOND 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:
Principal Interest
Amount of Due Date Rate on Amount of Balance Notarion
Date Made Loan of Loan Loan Payment Outstanding Made By
EXHIBIT A-3
TO AMENDMENT NO. 2
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 SECOND SUBSTITUTED SWING LINE NOTE
$20,000,000 Due May 24, 2000
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 24, 2000.
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 and Amendment No. 2 to
Third Amended and Restated Loan Agreement dated as of May 26,
1999 (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
26th day of May, 1999 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:
Principal Interest
Amount of Due Date Rate on Amount of Balance Notarion
Date Made Loan of Loan Loan Payment Outstanding Made By