FIRST AMENDMENT AGREEMENT TO NOTE PURCHASE
AGREEMENT DATED AS OF DECEMBER 15, 1995
This First Amendment Agreement ("Amendment") is entered into
as of this ___ day of June, 1999, for the purpose of amending
those certain separate Note Purchase Agreements, each dated as of
December 15, 1995 (hereinafter collectively the "Existing
Agreement") to which National Consumer Cooperative Bank, which
also conducts business as National Cooperative Bank (hereinafter
the "Company") and each of the institutions signatory hereto are
parties.
Recitals
The Company, First AUSA Life Insurance Company, PFL Life
Investors Insurance Company and The Canada Life Assurance Company
(collectively the "Noteholders") are parties to the Existing
Agreement, pursuant to which the Company sold the Series D Notes
and the Series E Notes in the aggregate principal amounts of
$12,500,000 and $12,500,000, respectively (collectively the
"Notes"). Capitalized terms used and not defined herein have the
meanings stated in the Existing Agreement. The Company, by an
Amendment No. 1 to Third Amended and Restated Loan Agreement,
dated as of May 27, 1998, amended the Bank Loan Agreement in
certain respects, and the Company has requested that the
Noteholders amend the definitions of "Consolidated Debt" and
"Restricted Investments" in the Existing Agreement and consider
other amendments to make the covenants in the Existing Agreement
conform to the Bank Loan Agreement as amended from time to time.
Each of the Noteholders is agreeable to the Company's request,
subject to the terms of this Amendment.
NOW THEREFORE, upon the satisfaction of the conditions
precedent to the effectiveness of this Amendment set forth in
Section 3 hereof, and for good and valuable consideration the
receipt and adequacy of which are hereby acknowledged, the
parties hereto agree as follows:
1. The Recitals are incorporated by reference herein.
2. Amendments to the Existing Agreement.
A. Section 7.8 at page 23 of the Existing Agreement is
amended in subsection (a) by deleting "eight hundred percent
(800%)" and substituting "one thousand percent (1,000%)" and by
deleting subsection (b) and changing "(c)" to "(b)".
B. Section 7.22 at page 28 of the Existing Agreement
is amended, in clause (b), by deleting the period at the end and
adding "unless, after receipt of a written request from the
Company for Noteholders' consents to such supersession,
replacement, amendment, supplement or modification, each
Noteholder delivers its written consent thereto.
C. The definition of "Consolidated Debt" at page 41 of
the Existing Agreement is hereby amended by deleting clause (b)
and substituting "(b) the aggregate amount of Asset
Securitization Recourse Liabilities of the Company or any
Restricted Subsidiary to the extent, but only to the extent, that
such obligations have matured."
D. The definition of "Restricted Investments" in the
Existing Agreement is amended at page 50 by (i) adding "and"
after the semicolon at the end of clause (o), (ii) adding
"(p) 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 hereof, 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.";
and (iii) in the immediately following proviso, deleting "clauses
(a) through (o)" and substituting "clauses (a) through (p)".
E. The definition of "Bank Loan Agreement" at page 37
of the Existing Agreement is deleted and the following is
substituted:
"Bank Loan Agreement" means the Third Amended and
Restated Loan Agreement, dated as of May 28, 1997, by
and among the Company, the banks signatory thereto and
Fleet Bank, N.A. (formerly known as Natwest Bank,
N.A.), as agent, as amended from time to time."
3. Effectiveness. The provisions of Section 1 of this
Amendment shall become effective and binding upon the parties
hereto on the Effective Date upon the satisfaction in full of
each of the following conditions:
(a) The Company and each Noteholder shall have
executed and delivered a counterpart of this Amendment;
(b) the Company shall have executed and delivered an
Officer's Certificate as to the absence of any Event of Default
under the Existing Agreement; and
(c ) the Company shall have paid in full all costs and
expenses, including without limitation fees and disbursement of
outside special counsel, incurred by each Noteholder in
connection with review and implementation of this Amendment.
Upon the effectiveness of this Amendment, on and after the date
hereof, each reference in the Existing Agreement to "this
Agreement", "hereunder", "herein" or words of like import, and
each reference in the Notes to the Existing Agreement, shall mean
and be a reference to the Existing Agreement as amended hereby.
4. Duplicate Originals; Execution in Counterpart. Two or
more duplicate originals of this Amendment may be signed by the
parties hereto, each of which shall be an original but all of
which together shall constitute one and the same instrument.
This Amendment may be executed in one or more counterparts and
shall be effective when at least one counterpart shall have been
executed by each party hereto, and each set of counterparts
which, collectively, show execution by each party hereto shall
constitute one duplicate original.
5. Limitation of Amendment. The terms of this Amendment
shall not operate as or constitute a waiver by Noteholders of, or
otherwise prejudice, Noteholders' rights, remedies or powers
under the Existing Agreement or the Notes or under applicable
law. Except as expressly provided herein,
(i) no other terms and provisions of the Existing
Agreement are modified or changed by this Amendment,
and
(ii) the terms and provisions of the Existing
Agreement shall continue in full force and effect.
The Company hereby acknowledges, confirms, reaffirms and ratifies
all of its obligations and duties under the Amended Agreement and
the Notes.
6. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY,
AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS
OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their authorized officers as of the
date first above written.
NATIONAL CONSUMER COOPERATIVE BANK
BY: ______________________________
Name: William E. Seas, III
Title: Treasurer
FIRST AUSA LIFE INSURANCE COMPANY
By: _____________________________
Name:
Title:
PFL LIFE INSURANCE COMPANY
By:__________________________________
Name:
Title:
THE CANADA LIFE ASSURANCE COMPANY
By:_______________________________
Name:
Title: