Exhibit 10.41


 





NATIONAL CONSUMER
COOPERATIVE BANK


 


 












 


Second AMENDMENT


Dated as of
December 9, 2003


 


 


to


 


 


MASTER SHELF
AGREEMENT


Dated as of June
30, 1997


 












 


 


Re: 
$20,000,000 6.22 % Senior Notes

Due February 3, 2004


 




 




















 


SECOND
AMENDMENT


 


This second Amendment  dated
as of December 9, 2003 (the or this “Second Amendment”) to the Master Shelf
Agreement dated as of June 30, 1997, and amended by letter agreement dated
December 28, 1999 is between National
Consumer Cooperative Bank (d/b/a/ National Cooperative Bank), a banking
corporation chartered pursuant to the National Consumer Cooperative Bank Act,
as amended, 12 U.S.C.  §§3001-3051 (the “Company”),
and each of the institutions which is a signatory to this Second Amendment
(collectively, the “Noteholders”).


 


RECITALS:


 


A.                                   The
Company and each of the Noteholders have heretofore entered into the Master
Shelf Agreement dated as of June 30, 1997, as amended as of December 28, 1999
(the “Note
Agreement”).  The Company has
heretofore issued $20,000,000 of its 6.22 % Senior Notes Due February 3, 2004
(the “Notes”)  pursuant to the Note Agreement.


 


B.                                     The
Company and the Noteholders now desire to amend the Note Agreement in the
respects, but only in the respects, hereinafter set forth.


 


C.                                     Capitalized
terms used herein shall have the respective meanings ascribed thereto in the
Note Agreement unless herein defined or the context shall otherwise require.


 


D.                                    All
requirements of law have been fully complied with and all other acts and things
necessary to make this Second Amendment a valid, legal and binding instrument
according to its terms for the purposes herein expressed have been done or
performed.


 


Now, therefore, upon
the full and complete satisfaction of the conditions precedent to the
effectiveness of this Second Amendment set forth in Section 3.1 hereof, and in
consideration of good and valuable consideration the receipt and sufficiency of
which is hereby acknowledged, the Company and the Noteholders do hereby agree
as follows:


 


SECTION 1.                                AMENDMENTS.


 


Section 1.1.                                Section
5D of the Note Agreement shall be and is hereby amended in its entirety to read
as follows:


 


5D.                        Maintenance
of Consolidated Adjusted Net Worth and Consolidated Effective Net Worth.


 


(i)                               
The Company shall at all times keep and maintain Consolidated Adjusted Net
Worth in an amount not less than the sum of (a) $147,000,000, plus (b) an
aggregate amount equal to 50% of its Consolidated Net Earnings (but, in each
case, only if a positive number) for each completed fiscal quarter of the
Company beginning with the first fiscal quarter of the Company ended subsequent
to September 30, 2001.


 

















 


(ii)                                  The
Company shall at all times keep and maintain Consolidated Effective Net Worth
in an amount not less than the sum of (a) $312,000,000, plus (b) an aggregate
amount equal to 50% of its Consolidated Net Earnings (but, in each case, only
if a positive number) for each completed fiscal quarter of the Company
beginning with the first fiscal quarter of the Company ended subsequent to
September 30, 2001.


 


Section 1.2.                                Each
of Sections 6M, 6N and 6O of the Note Agreement shall be and is hereby amended
by adding, at the beginning of the first sentence of each, the phrase “Except
as permitted by Section 6P,”.


 


Section 1.3.                                Section
6P of the Note Agreement shall be and is hereby amended in its entirety to read
as follows:


 


Section 6P.                                  Class
A Notes.


 


(i)                                     No Voluntary
Prepayment.  The Company
shall not, directly or indirectly or through any Subsidiary, purchase, redeem
or otherwise retire or acquire, prior to the respective stated final maturities
thereof, the whole or any part of any Class A Notes except out of the net cash
proceeds of a substantially concurrent issue or sale of Class B Stock or Class
C Stock, provided,
however, that (i) the Company may prepay the Class A Notes in an
amount not to exceed $1,000,000 in the fiscal year of the Company ending
December 31, 2003 if, after giving effect to such prepayment under this
clause (i), no Default or Event of Default shall have occurred and be
continuing; (ii) the Company may prepay the Class A Notes on or after
December 15, 2003 in an amount not to exceed $52,553,329 with funds including
the proceeds of a substantially simultaneous issue of $50,000,000 of trust
preferred securities, if, after giving effect to such prepayment under clause
(i) and this clause (ii), no Default or Event of Default shall have occurred
and be continuing; (iii) the Company may make annual prepayments of the
Class A Notes in its fiscal years 2004 through 2009, each in the amount of no
more than $2,500,000, if, after giving effect to such prepayment under clauses
(i) and (ii) and this clause (iii), no Default or Event of Default shall have
occurred and be continuing; (iv) the Company may prepay the Class A Notes
on or about December 31, 2010, in an amount not to exceed $23,989,000, with
funds that may include the proceeds of a substantially simultaneous issue of
Subordinated Debt or trust preferred securities, if after giving effect to such
prepayment under clauses (i), (ii), (iii) and this clause (iv), no Default or
Event of Default shall have occurred and be continuing; and (v) the Company may
make annual prepayments of the Class A Notes in its fiscal years 2011 through
2019, in the amount of no more than $5,000,000 in fiscal year 2011 and increasing
by 10% in each succeeding fiscal year, if, after if after giving effect to such
prepayments under clauses (i), (ii), (iii), (iv) and this clause (v), no
Default or Event of Default shall have occurred and be continuing.


 


(ii)                                  No
Amendments.  The Company
shall not amend, modify, terminate, or waive any of its rights under the
Financing Agreement or any of the Class Notes (or any other agreement or
similar instrument under or pursuant to which such Class A Notes have been
issued) without the prior written consent of the Required Holders, except that


 


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the Company may
enter into that certain Amended and Restated Financing Agreement between the
Company and the Department of the Treasury, dated as of November 26, 2003, a
copy of which is attached hereto as Exhibit A.


 


Section
1.4                             Section
10B of the Note Agreement is amended, in the definition of “Consolidated
Effective Net Worth,” by substituting a semicolon for the period at the end of
(b), inserting “ plus,” and adding the following:


 


(c)                                  the
aggregate outstanding principal amount of all Indebtedness which specifically
by its terms ranks equally with or subordinated to the Class A Notes at such
time.


 


Section
1.5                             Section
10B of the Note Agreement is amended, in the definition of “Debt,” by amending
and restating clause (a) as follows:


 


(a)                                  direct
debt and other similar recourse and non-recourse monetary obligations of such
person, redemption obligations in respect of mandatorily redeemable preferred
stock, and any trust preferred securities,


 


Section 1.6                                   Section
10B of the Note Agreement is amended, in the definition of “Permitted Proceeds
Application,” by deleting “ninety (90)” and substituting “one hundred eighty
(180)”.


 


Section 2.                                            Representations
and Warranties of the Company.


 


Section 2.1.                                To
induce the Noteholders to execute and deliver this Second Amendment (which
representations shall survive the execution and delivery of this Second
Amendment), the Company represents and warrants to the Noteholders that:


 


(a)                                  the
Company is a corporation duly organized, validly existing and in good standing
under the laws of its jurisdiction of incorporation, and the Company has the
corporate power and authority to execute and deliver this Second Amendment and
to perform the provisions hereof and the provisions of the Note Agreement, as
amended by this Second Amendment;


 


(b)                                 this
Second Amendment has been duly authorized by all necessary corporate action on
the part of the Company, and this Agreement constitutes a legal, valid and
binding obligation of the Company enforceable against the Company in accordance
with its terms, except as such enforceability may be limited by (i) applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting
the enforcement of creditors’ rights generally and (ii) general principles of
equity (regardless of whether such enforceability is considered in a proceeding
in equity or at law);


 


(c)                                  the
Note Agreement, as amended by this Second Amendment, constitutes a legal, valid
and binding obligation of the Company enforceable against the Company in
accordance with its terms, except as such enforceability may be limited by (i)
applicable


 


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bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of creditors’ rights
generally and (ii) general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law);


 


(d)                                 the
execution, delivery and performance by the Company of this Second Amendment
will not (i) contravene, result in any breach of, or constitute a default
under, or result in the creation of any Lien in respect of any property of the
Company or any Subsidiary under, any indenture, mortgage, deed of trust, loan,
purchase or credit agreement, lease, corporate charter or by-laws, or any other
agreement or instrument to which the Company or any Subsidiary is bound or by
which the Company or any Subsidiary or any of their respective properties may
be bound or affected, (ii) conflict with or result in a breach of any of the
terms, conditions or provisions of any order, judgment, decree, or ruling of
any court, arbitrator or Governmental Authority applicable to the Company or any
Subsidiary or (iii) violate any provision of any statute or other rule or
regulation of any Governmental Authority applicable to the Company or any
Subsidiary;


 


(e)                                  no
consent, approval or authorization of, or registration, filing or declaration
with, any Governmental Authority is required in connection with the execution
or delivery by the Company of this Second Amendment or performance by the
Company of the Note Agreement, as amended by this Second Amendment;


 


(f)                                    as
of the date hereof and after giving effect to this Second Amendment, no Default
or Event of Default has occurred which is continuing; and


 


(g)                                 all
the representations and warranties contained in Section 5 of the Note Agreement
are true and correct in all material respects with the same force and effect as
if made by the Company on and as of the date hereof.


 


SECTION 3.                                CONDITIONS
TO EFFECTIVENESS OF THIS SECOND AMENDMENT.


 


Section 3.1.                                This
Second Amendment shall not become effective until, and shall become effective
when, each and every one of the following conditions shall have been satisfied:


 


(a)                                  executed
counterparts of this Second Amendment, duly executed by the Company and the
Required Holders of the Notes, shall have been delivered to the Noteholders;


 


(b)                                 the
Noteholders shall have received evidence satisfactory to them that the Bank
Loan Agreement and the January 8, 2003 Note Purchase Agreement for $50 Million
5.52% Senior Notes have been amended substantially as proposed in the forms
annexed hereto as Exhibits B and C, respectively;


 


(c)                                  the
Noteholders shall have received (i) a copy of the resolutions of the Board of
Directors of the Company authorizing the execution, delivery and performance by
the Company of this Second Amendment, certified by its Secretary or an
Assistant


 


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Secretary, and (ii) a
copies of the resolutions of the Board of Directors of the Company authorizing
execution, delivery and performance by the Company of the respective amendments
to the Bank Loan Agreement and the Prudential Agreements; and


 


(d)                                 the
representations and warranties of the Company set forth in Section 2 hereof are
true and correct on and with respect to the date hereof.


 


Upon receipt of all of
the foregoing, this Second Amendment shall become effective.


 


SECTION 4.                                PAYMENT
OF NOTEHOLDERS’ COUNSEL FEES AND EXPENSES.


 


Section 4.1.                                The
Company agrees to pay upon demand, the reasonable fees and expenses of special
counsel to the Noteholders, if any, in connection with the negotiation,
preparation, approval, execution and delivery of this Second Amendment.


 


SECTION 5.                                MISCELLANEOUS.


 


Section 5.1.                                This
Second Amendment shall be construed in connection with and as part of the Note
Agreement, and except as modified and expressly amended by this Second Amendment,
all terms, conditions and covenants contained in the Note Agreement and the
Notes are hereby ratified and shall be and remain in full force and effect.


 


Section 5.2.                                Any
and all notices, requests, certificates and other instruments executed and delivered
after the execution and delivery of this Second Amendment may refer to the Note
Agreement without making specific reference to this Second Amendment but
nevertheless all such references shall include this Second Amendment unless the
context otherwise requires.


 


Section 5.3.                                The
descriptive headings of the various Sections or parts of this Second Amendment
are for convenience only and shall not affect the meaning or construction of
any of the provisions hereof.


 


Section 5.4.                                This
Second Amendment shall be construed and enforced in accordance with, and the
rights of the parties shall be governed by, the law of the State of New York
excluding choice-of-law principles of the law of such State that would require
the application of the laws of a jurisdiction other than such State.


 


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Section 5.5.                                The
execution hereof by you shall constitute a contract between us for the uses and
purposes hereinabove set forth, and this Second Amendment may be executed in
any number of counterparts, each executed counterpart constituting an original,
but all together only one agreement.


 


 


	
   

  	
  National
  Consumer Cooperative Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
  Accepted and Agreed to:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  The
  Prudential Insurance Company

  Of America

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Yvonne Guajardo

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Prudential Life Insurance
  Company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Yvonne Guajardo

  
	
   

  	
   

  	
  Title:

  	
  Asst. Vice President

  
					



 


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Exhibit A
– Class A Notes Amended and Restated Financing Agreement


 


Exhibit B   Bank
Loan Agreement


 


Exhibit C
– MetLife Agreement