Exhibit
10.39


 


AMENDMENT NO. 3 TO

FOURTH AMENDED AND RESTATED LOAN AGREEMENT


 


AGREEMENT, made as of the 5th day of December, 2003,
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”);


 


FLEET NATIONAL BANK, as Administrative Agent for the Banks (in such capacity,
together with its successors in such capacity, the “Agent”); and


 


SUNTRUST BANK, as Syndication Agent, WACHOVIA BANK, NATIONAL ASSOCIATION,
as Documentation Agent and FLEET SECURITIES, INC., as Lead Arranger.


 


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
Fourth Amended and Restated Loan Agreement dated as of February 12, 2002, which
was amended pursuant to (i) Amendment No. 1 to Fourth Amended and Restated Loan
Agreement dated as of February 10, 2003, 
and (ii)  Amendment No. 2 to
Fourth Amended and Restated Loan Agreement dated as of May 9, 2003 (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, 
amend provisions relating to prepayment of Class A Notes and amending the
Financing Agreement between the Borrower and the U.S. Department of the
Treasury, and the Banks and the Agent are willing to amend and supplement the
Original Loan Agreement on the terms and conditions hereinafter set forth; and


 


(C)                                All capitalized terms used herein which
are not otherwise defined herein shall have the respective meanings ascribed
thereto in the Original Loan Agreement.


 


NOW, THEREFORE, the parties hereto agree as follows:


 

















 


Article 1.                                            Amendments
to Original Loan Agreement.


 


Section 1.1                                         The
Original Loan Agreement is hereby amended as follows:


 


(a)                              The
definition of “Consolidated Debt” appearing in Article 1(a) is amended by
adding the following immediately before the semi-colon appearing at the end of
clause (a) thereof: “and any trust preferred securities;”.


 


(b)                             The
definition of “Consolidated Effective Net Worth” appearing in Article 1(a) is
amended by substituting a semicolon for the period at the end of clause (b)
thereof, inserting “ plus,” and adding the following:


 


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


 


(c)                              Subsection
7.12(b) is amended by striking the period at the end thereof, substituting a
comma, and adding “except as permitted by Schedule 7.1 annexed hereto.”


 


(d)                   Schedule 7.1 is
amended and restated in its entirety as provided in Schedule 7.1 attached
hereto.


 


(e)                    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, and all references to Schedule 7.1 shall be deemed to refer to Schedule
7.1 as amended and restated hereby.


 


Section 1.2                                   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 2.                                            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 3.                                            Conditions
to Effectiveness of this Agreement.


 


This Amendment No. 3 to
Fourth 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:


 


2

















 


(a)                                  This Amendment No. 3 shall have been
executed and delivered to the Agent by a duly authorized representative of the
Borrower, the Agent and each Bank necessary to constitute Majority Banks.


 


(b)                                 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. 3, no Default or Event of
Default shall exist, shall be true.


 


(c)                                  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.


 


(d)                                 All legal matters incident hereto shall
be satisfactory to the Agent and its counsel.


 


Article 4.                                            Miscellaneous.


 


Section 4.1                                   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 term “Loan Agreement” shall be deemed to refer
to the Original Loan Agreement, as amended hereby, the (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 4.2                                   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 4.3                                   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:

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Richard L. Reed

  
	
   

  	
  Title:

  	
  Managing Director, Chief Financial

  Officer and Treasurer

  
					



 


3

















 


	
   

  	
  FLEET NATIONAL BANK,

  
	
   

  	
  as Administrative Agent and as a
  Bank,

  
	
   

  	
  and as Swing Line Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Robert T.P. Storer

  
	
   

  	
   

  	
  Title:

  	
  Managing Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Lending Office for Prime Rate

  Loans and LIBOR Loans and

  
	
   

  	
  Address for Notices:

  
	
   

  	
   

  
	
   

  	
  1185 Avenue of the Americas

  
	
   

  	
  New York, New York 
  10036

  
	
   

  	
  Attn:

  	
  Mr. Thomas J. Levy

  
	
   

  	
   

  	
  Senior Vice President

  
	
   

  	
   

  
	
   

  	
  Telephone No.:  212-819-5751

  
	
   

  	
  Telecopier No.:  212-819-6116

  
						



 


Signature Page to
Amendment No. 3 to Fourth Amended and Restated Loan Agreement among

National Consumer Cooperative Bank, the Banks party thereto

and Fleet National Bank, as Administrative Agent


 

















 


	
   

  	
  CREDIT SUISSE FIRST BOSTON

  
	
   

  	
  Cayman Islands Branch

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Lending Office for Prime Rate

  Loans and LIBOR Loans and

  
	
   

  	
  Address for Notices:

  
	
   

  	
   

  
	
   

  	
  Credit Suisse First Boston

  
	
   

  	
  11 Madison Avenue/20th Floor

  
	
   

  	
  New York, New York 10010-3629

  
	
   

  	
  Attn: Mr. Jay Chall

  
	
   

  	
   

  
	
   

  	
  Telephone No.: 
  212-325-9010

  
	
   

  	
  Telecopier No.: 
  212-325-8320

  



 

















 


	
   

  	
  COOPERATIEVE CENTRALE

  RAIFFEISEN-BOERENLEENBANK

  
	
   

  	
  B.A., “Rabobank International”,

  
	
   

  	
  New York Branch

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Lending Office for Prime Rate

  Loans and LIBOR Loans and

  
	
   

  	
  Address for Notices:

  
	
   

  	
   

  
	
   

  	
  Rabobank Nederland, New York Branch

  
	
   

  	
  245 Park Avenue/38th Floor

  
	
   

  	
  New York, New York 10167-0062

  
	
   

  	
  Attn:

  	
  Michael Halevi

  
	
   

  	
   

  	
  Senior Associate

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Telephone No.: 212-808-6962

  
	
   

  	
  Telecopier No.: 212-309-5139

  
	
   

  	
   

  
	
   

  	
  with a copy to:

  
	
   

  	
   

  
	
   

  	
  c/o Rabo Support Services

  
	
   

  	
  10 Exchange Place

  
	
   

  	
  Jersey City, New Jersey 
  07302

  
	
   

  	
  Attention: 
  Corporate Services

  
	
   

  	
   

  
	
   

  	
  Telephone No.: 201-499-5322

  
	
   

  	
  Telecopier No.: 201-499-5326

  
						



 

















 


	
   

  	
  PNC BANK, NATIONAL ASSOCIATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Lending Office for Prime Rate

  
	
   

  	
  Loans and LIBOR Loans and

  
	
   

  	
  Address for Notices:

  
	
   

  	
   

  
	
   

  	
  PNC Bank, National Association

  
	
   

  	
  PNC Firstside Center

  
	
   

  	
  500 First Avenue

  
	
   

  	
  Pittsburgh, Pennsylvania 15219

  
	
   

  	
  Attn.: Marc Accamando

  
	
   

  	
   

  
	
   

  	
  Telephone No.: 412-768-7647

  
	
   

  	
  Telecopier No.: 412-768-4586

  



 

















 


	
   

  	
  WACHOVIA BANK, NATIONAL ASSOCIATION,

  
	
   

  	
   as Documentation Agent and as
  a Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Lending Office for Prime Rate Loans

  
	
   

  	
  and LIBOR Loans and

  
	
   

  	
  Address for Notices:

  
	
   

  	
   

  
	
   

  	
  Wachovia Bank, N.A.

  
	
   

  	
  1753 Pinnacle Drive

  
	
   

  	
  3rd Floor, VA1936

  
	
   

  	
  McLean, Virginia 22102

  
	
   

  	
  Attn:

  	
  Rebecca Ray

  
	
   

  	
   

  	
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  Telephone:

  	
  703-760-5458

  
	
   

  	
  Telecopy:

  	
  703-760-6300

  
						



 

















 


	
   

  	
  M&T BANK

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Lending Office for Prime Rate Loans

  
	
   

  	
  and LIBOR Loans and

  
	
   

  	
  Address for Notices:

  
	
   

  	
   

  
	
   

  	
  M&T Bank

  
	
   

  	
  Financial Institutions Division

  
	
   

  	
  P.O. Box 1596 (101-710)

  
	
   

  	
  25 South Charles Street/Suite 1505

  
	
   

  	
  Baltimore, Maryland 21201

  
	
   

  	
  Attn:

  	
  Steven A. Schramm

  
	
   

  	
   

  	
  Vice President

  
	
   

  	
   

  
	
   

  	
  Telephone No.: 410-244-4045

  
	
   

  	
  Telecopier No.: 410-244-4234

  
						



 

















 


	
   

  	
  UNION BANK OF CALIFORNIA, N.A.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Lending Office for Prime Rate Loans

  
	
   

  	
  and LIBOR Loans and

  
	
   

  	
  Address for Notices:

  
	
   

  	
   

  
	
   

  	
  Union Bank of California, N.A.

  
	
   

  	
  445 So. Figueroa Street/13th Floor

  
	
   

  	
  Los Angeles, California 90071

  
	
   

  	
  Attn:

  	
  Timothy Prangley

  
	
   

  	
   

  	
  Vice President

  
	
   

  	
   

  
	
   

  	
  Telephone No.: 213-236-6999

  
	
   

  	
  Telecopier No.: 213-236-5954

  
						



 

















 


	
   

  	
  SUNTRUST BANK, as Syndication Agent

  
	
   

  	
    and as a Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Lending Office for Prime Rate

  
	
   

  	
  Loans and LIBOR Loans and

  
	
   

  	
  Address for Notices:

  
	
   

  	
   

  
	
   

  	
  SunTrust Financial Institutions Division

  
	
   

  	
  919 East Main Street

  
	
   

  	
  PO Box 26665 (Mail Code: CS HDQ 1922)

  
	
   

  	
  Attn:

  	
  Mr. Dennis Falk

  
	
   

  	
   

  	
  Senior Vice President

  
	
   

  	
   

  
	
   

  	
  Telephone No.: 
  804-782-7229

  
	
   

  	
  Telecopier No.: 
  804-782-7419

  
						



 

















 


	
   

  	
  ISRAEL DISCOUNT BANK OF NEW YORK

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Lending Office for Prime Rate

  
	
   

  	
  Loans and LIBOR Loans and

  
	
   

  	
  Address for Notices:

  
	
   

  	
   

  
	
   

  	
  Israel Discount Bank of New York

  
	
   

  	
  511 Fifth Avenue

  
	
   

  	
  New York, New York 
  10017-4987

  
	
   

  	
  Attn.:  Mr. Kenneth
  Walters

  
	
   

  	
   

  
	
   

  	
  Telephone No.: 
  212-551-8820

  
	
   

  	
  Telecopier No.: 
  212-551-8660

  



 

















 


	
   

  	
  CREDIT LYONNAIS NEW YORK BRANCH

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Lending Office for Prime Rate

  
	
   

  	
  Loans and LIBOR Loans and

  
	
   

  	
  Address for Notices:

  
	
   

  	
   

  
	
   

  	
  Credit Lyonnais New York Branch

  
	
   

  	
  1301 Avenue of the Americas

  
	
   

  	
  13th Floor/Financial Institutions Department

  
	
   

  	
  New York, New York 
  10019

  
	
   

  	
  Attn:  Ken Ricciardi

  
	
   

  	
   

  
	
   

  	
  Telephone No.: 
  212-261-7348

  
	
   

  	
  Telecopier No.: 
  212-261-3438

  



 

















 


	
   

  	
  KBC BANK N.V.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Lending Office for Prime Rate

  
	
   

  	
  Loans and LIBOR Loans and

  
	
   

  	
  Address for Notices:

  
	
   

  	
   

  
	
   

  	
  KBC Bank N.V.

  
	
   

  	
   

  
	
   

  	
  125 West 55th Street

  
	
   

  	
  New York, New York 10019

  
	
   

  	
  Attn:

  	
  Edward Eijlers

  
	
   

  	
   

  	
  Assistant Vice President

  
	
   

  	
   

  
	
   

  	
  Telephone No.: 
  212-541-0739

  
	
   

  	
  Telecopier No.: 
  212-541-0793

  
						



 

















 


	
   

  	
  THE BANK OF NOVA SCOTIA

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Lending Office for Prime Rate

  
	
   

  	
  Loans and LIBOR Loans and

  
	
   

  	
  Address for Notices:

  
	
   

  	
   

  
	
   

  	
  The Bank of Nova Scotia

  
	
   

  	
  One Liberty Plaza

  
	
   

  	
  New York, New York 
  10006

  
	
   

  	
  Attn:

  	
  David Schwartzbard

  
	
   

  	
   

  	
  Director

  
	
   

  	
   

  
	
   

  	
  Telephone No.: 
  212-225-5221

  
	
   

  	
  Telecopier No.: 
  212-225-5090

  
						



 

















 


	
   

  	
  BANK OF SCOTLAND

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Lending Office for Prime Rate

  
	
   

  	
  Loans and LIBOR Loans and

  
	
   

  	
  Address for Notices:

  
	
   

  	
   

  
	
   

  	
  Bank of Scotland

  
	
   

  	
  565 Fifth Avenue, 5th Floor

  
	
   

  	
  New York, New York 10017

  
	
   

  	
  Attn:

  	
  Amy P. Rick

  
	
   

  	
   

  	
  First Vice President

  
	
   

  	
   

  
	
   

  	
  Telephone No.: 
  212-450-0866

  
	
   

  	
  Telecopier No.: 
  212-682-5720

  
						



 

















 


AMENDED AND RESTATED

SCHEDULE
7.1

TO FOURTH
AMENDED AND RESTATED LOAN AGREEMENT

BY AND
AMONG

NATIONAL
CONSUMER COOPERATIVE BANK

AND

CERTAIN
BANKS NAMED THEREIN

AND

FLEET
NATIONAL BANK, AS ADMINISTRATIVE AGENT FOR THE BANKS














 


PERMITTED INDEBTEDNESS AND GUARANTIES


 












 


1.              Indebtedness of NCB
Capital and NCB,FSB secured by liens permitted under Schedule 3.5.


 


2.              (i) The Borrower may
prepay the Class A Notes in an amount not to exceed $1,000,000 in the fiscal
year of the Borrower 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 Borrower 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 Borrower 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 Borrower 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 Borrower
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.


 


3.                    The
Borrower may enter into an Amended and Restated Financing Agreement having
terms and conditions as stated in item 2 of this Schedule 7.1 and other terms
substantially identical to those attached hereto in Schedule 7.1 Continued
entitled “Amended and Restated Financing Agreement Between The Department of
the Treasury and the National Consumer Cooperative Bank”, dated as of November
26, 2003.