Exhibit 10.46


 


GUARANTEE AGREEMENT


 


National Consumer Cooperative Bank


 


Dated as of December 17, 2003


 

















 


TABLE OF CONTENTS


 


	
  ARTICLE I

  DEFINITIONS AND INTERPRETATION

  
	
   

  	
   

  
	
  SECTION
  1.1.

  	
  Definitions
  and Interpretation

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE II

  POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE

  
	
   

  	
   

  
	
  SECTION
  2.1.

  	
  Powers
  and Duties of the Guarantee Trustee

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION
  2.2.

  	
  Certain
  Rights of the Guarantee Trustee

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION
  2.3.

  	
  Not
  Responsible for Recitals or Issuance of Guarantee

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION
  2.4.

  	
  Events
  of Default; Waiver

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION
  2.5.

  	
  Events
  of Default; Notice

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE III

  THE GUARANTEE TRUSTEE

  
	
   

  	
   

  
	
  SECTION
  3.1.

  	
  The
  Guarantee Trustee; Eligibility

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION
  3.2.

  	
  Appointment,
  Removal and Resignation of the Guarantee Trustee

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV

  GUARANTEE

  
	
   

  	
   

  
	
  SECTION
  4.1.

  	
  Guarantee

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION
  4.2.

  	
  Waiver
  of Notice and Demand

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION
  4.3.

  	
  Obligations
  Not Affected

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION
  4.4.

  	
  Rights
  of Holders

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION
  4.5.

  	
  Guarantee
  of Payment

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION
  4.6.

  	
  Subrogation

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION
  4.7.

  	
  Independent
  Obligations

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION
  4.8.

  	
  Enforcement

  	
   

  



 


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  ARTICLE V

  LIMITATION OF TRANSACTIONS; SUBORDINATION

  
	
   

  	
   

  
	
  SECTION
  5.1.

  	
  Limitation
  of Transactions

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION
  5.2.

  	
  Ranking

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI

  TERMINATION

  
	
   

  	
   

  
	
  SECTION
  6.1.

  	
  Termination

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII

  INDEMNIFICATION

  
	
   

  	
   

  
	
  SECTION
  7.1.

  	
  Exculpation

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION
  7.2.

  	
  Indemnification

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION
  7.3.

  	
  Compensation;
  Reimbursement of Expenses

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII

  MISCELLANEOUS

  
	
   

  	
   

  
	
  SECTION
  8.1.

  	
  Successors
  and Assigns

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION
  8.2.

  	
  Amendments

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION
  8.3.

  	
  Notices

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION
  8.4.

  	
  Benefit

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION
  8.5.

  	
  Governing
  Law

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION
  8.6.

  	
  Counterparts

  	
   

  



 


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GUARANTEE AGREEMENT


 


This GUARANTEE AGREEMENT (the “Guarantee”), dated as of December 17,
2003, is executed and delivered by National Consumer Cooperative Bank (the
“Guarantor”), and Wells Fargo Bank, National Association, a national banking
association with its principal place of business in the State of Delaware, as
trustee (the “Guarantee Trustee”), for the benefit of the Holders (as defined
herein) from time to time of the Capital Securities (as defined herein) of NCB
Capital Trust I, a Delaware statutory trust (the “Issuer”).


 


WHEREAS, pursuant to an Amended and Restated Declaration of Trust (the
“Declaration”), dated as of December 17, 2003, among the trustees named therein
of the Issuer, National Consumer Cooperative Bank, as sponsor, and the Holders
from time to time of undivided beneficial interests in the assets of the
Issuer, the Issuer is issuing on the date hereof securities, having an
aggregate liquidation amount of up to $50,000,000, designated the TP Securities
(the “Capital Securities”); and


 


WHEREAS, as incentive for the Holders to purchase the Capital
Securities, the Guarantor desires irrevocably and unconditionally to agree, to
the extent set forth in this Guarantee, to pay to the Holders of Capital
Securities the Guarantee Payments (as defined herein) and to make certain other
payments on the terms and conditions set forth herein.


 


NOW, THEREFORE, in consideration of the purchase by each Holder of the
Capital Securities, which purchase the Guarantor hereby agrees shall benefit
the Guarantor, the Guarantor executes and delivers this Guarantee for the
benefit of the Holders.


 


ARTICLE I

DEFINITIONS AND INTERPRETATION


 


SECTION 1.1.                       Definitions
and Interpretation.


 


In this Guarantee, unless the context otherwise requires:


 


(a)                                  capitalized terms
used in this Guarantee but not defined in the preamble above have the
respective meanings assigned to them in this Section 1.1;


 


(b)                                 a term defined
anywhere in this Guarantee has the same meaning throughout;


 


(c)                                  all references to
“the Guarantee” or “this Guarantee” are to this Guarantee as modified,
supplemented or amended from time to time;


 


(d)                                 all references in this
Guarantee to Articles and Sections are to Articles and Sections of this
Guarantee, unless otherwise specified;


 


(e)                                  terms defined in the
Declaration as of the date of execution of this Guarantee have the same
meanings when used in this Guarantee, unless otherwise defined in this
Guarantee or unless the context otherwise requires; and


 

















 


(f)                                    a reference to the
singular includes the plural and vice versa.


 


“Beneficiaries” means any Person to whom the Issuer is or hereafter
becomes indebted or liable.


 


“Corporate Trust Office” means the office of the Guarantee Trustee at
which the corporate trust business of the Guarantee Trustee shall, at any
particular time, be principally administered, which office at the date of
execution of this Guarantee is located at 919 Market Street, Suite 700,
Wilmington, DE 19801.


 


“Covered Person” means any Holder of Capital Securities.


 


“Debentures” means the junior subordinated debentures of National
Consumer Cooperative Bank, designated the Junior Subordinated Debt Securities
due 2034, held by the Institutional Trustee (as defined in the Declaration) of
the Issuer.


 


“Event of Default” has the meaning set forth in Section 2.4.


 


“Guarantee Payments” means the following payments or distributions,
without duplication, with respect to the Capital Securities, to the extent not
paid or made by the Issuer: (i) any accrued and unpaid Distributions (as
defined in the Declaration) which are required to be paid on such Capital
Securities to the extent the Issuer has funds available in the Property Account
(as defined in the Declaration) therefor at such time, (ii) the price payable
upon redemption of the Capital Securities to the extent the Issuer has funds
available in the Property Account therefor at such time, with respect to any
Capital Securities that are mandatorily redeemed by the Issuer in accordance
with the terms of the Capital Securities, (iii) the Redemption Price (as
defined in the Indenture) to the extent the Issuer has funds available in the
Property Account therefor at such time, with respect to any Capital Securities
called for redemption by the Issuer, (iv) the Special Redemption Price (as
defined in the Indenture) to the extent the Issuer has funds available in the
Property Account therefor at such time, with respect to Capital Securities
called for redemption upon the occurrence of a Special Event (as defined in the
Indenture), and (v) upon a voluntary or involuntary liquidation, dissolution,
winding-up or termination of the Issuer (other than in connection with the
distribution of Debentures to the Holders of the Capital Securities in exchange
therefor as provided in the Declaration), the lesser of (a) the aggregate of
the liquidation amount and all accrued and unpaid Distributions on the Capital
Securities to the date of payment, to the extent the Issuer has funds available
in the Property Account therefor at such time, and (b) the amount of assets of
the Issuer remaining available for distribution to Holders in liquidation of
the Issuer after satisfaction of liabilities to creditors of the Issuer as
required by applicable law (in either case, the “Liquidation Distribution”).


 


“Guarantee Trustee” means Wells Fargo Bank, National Association, until
a Successor Guarantee Trustee has been appointed and has accepted such
appointment pursuant to the terms of this Guarantee and thereafter means each
such Successor Guarantee Trustee.


 


“Holder” means any holder, as registered on the books and records of
the Issuer, of any Capital Securities; provided, however, that, in determining
whether the holders of the


 


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requisite percentage of Capital
Securities have given any request, notice, consent or waiver hereunder,
“Holder” shall not include the Guarantor or any Affiliate of the Guarantor.


 


“Indemnified Person” means the Guarantee Trustee (including in its
individual capacity), any Affiliate of the Guarantee Trustee, or any officers,
directors, shareholders, members, partners, employees, representatives,
nominees, custodians or agents of the Guarantee Trustee.


 


“Indenture” means the Indenture, dated as of December 17, 2003, between
the Guarantor and Wells Fargo Bank, National Association, not in its individual
capacity but solely as trustee, and any indenture supplemental thereto pursuant
to which the Debentures are to be issued to the Institutional Trustee of the
Issuer.


 


“Liquidation Distribution” has the meaning set forth in the definition
of “Guarantee Payments” herein.


 


“Majority in liquidation amount of the Capital Securities” means
Holder(s) of outstanding Capital Securities, voting together as a class, but
separately from the holders of Common Securities, of more than 50% of the
aggregate liquidation amount (including the stated amount that would be paid on
redemption, liquidation or otherwise, plus accrued and unpaid Distributions to,
but excluding, the date upon which the voting percentages are determined) of
all Capital Securities then outstanding.


 


“Obligations” means any costs, expenses or liabilities (but not
including liabilities related to taxes) of the Issuer, other than obligations
of the Issuer to pay to holders of any Trust Securities the amounts due such
holders pursuant to the terms of the Trust Securities.


 


“Officer’s Certificate” means, with respect to any Person, a
certificate signed by one Authorized Officer of such Person. Any Officer’s
Certificate delivered with respect to compliance with a condition or covenant
provided for in this Guarantee shall include:


 


(a)                                  a statement that each
officer signing the Officer’s Certificate has read the covenant or condition
and the definitions relating thereto;


 


(b)                                 a brief statement of
the nature and scope of the examination or investigation undertaken by each
officer in rendering the Officer’s Certificate;


 


(c)                                  a statement that each
such officer has made such examination or investigation as, in such officer’s
opinion, is necessary to enable such officer to express an informed opinion as
to whether or not such covenant or condition has been complied with; and


 


(d)                                 a statement as to
whether, in the opinion of each such officer, such condition or covenant has
been complied with.


 


“Person” means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust,


 


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unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.


 


“Responsible Officer” means, with respect to the Guarantee Trustee, any
officer within the Corporate Trust Office of the Guarantee Trustee with direct
responsibility for the administration of any matters relating to this
Guarantee, including any vice president, any assistant vice president, any
secretary, any assistant secretary, the treasurer, any assistant treasurer, any
trust officer or other officer of the Corporate Trust Office of the Guarantee
Trustee customarily performing functions similar to those performed by any of
the above designated officers and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of that officer’s knowledge of and familiarity with the particular
subject.


 


“Successor Guarantee Trustee” means a successor Guarantee Trustee
possessing the qualifications to act as Guarantee Trustee under Section 3.1.


 


“Trust Securities” means the Common Securities and the Capital
Securities.


 


ARTICLE II

POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE


 


SECTION 2.1.                       Powers
and Duties of the Guarantee Trustee.


 


(a)                                  This Guarantee shall
be held by the Guarantee Trustee for the benefit of the Holders of the Capital
Securities, and the Guarantee Trustee shall not transfer this Guarantee to any
Person except a Holder of Capital Securities exercising his or her rights
pursuant to Section 4.4(b) or to a Successor Guarantee Trustee on acceptance by
such Successor Guarantee Trustee of its appointment to act as Successor
Guarantee Trustee. The right, title and interest of the Guarantee Trustee shall
automatically vest in any Successor Guarantee Trustee, and such vesting and
cessation of title shall be effective whether or not conveyancing documents
have been executed and delivered pursuant to the appointment of such Successor
Guarantee Trustee.


 


(b)                                 If an Event of Default
actually known to a Responsible Officer of the Guarantee Trustee has occurred
and is continuing, the Guarantee Trustee shall enforce this Guarantee for the
benefit of the Holders of the Capital Securities.


 


(c)                                  The Guarantee
Trustee, before the occurrence of any Event of Default and after the curing or
waiving of all Events of Default that may have occurred, shall undertake to
perform only such duties as are specifically set forth in this Guarantee, and
no implied covenants shall be read into this Guarantee against the Guarantee
Trustee. In case an Event of Default has occurred (that has not been cured or
waived pursuant to Section 2.4(b)) and is actually known to a Responsible
Officer of the Guarantee Trustee, the Guarantee Trustee shall exercise such of
the rights and powers vested in it by this Guarantee, and use the same degree
of care and skill in its exercise thereof, as a prudent person would exercise
or use under the circumstances in the conduct of his or her own affairs.


 


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(d)                                 No provision of this
Guarantee shall be construed to relieve the Guarantee Trustee from liability
for its own negligent action, its own negligent failure to act, or its own
willful misconduct, except that:


 


(i)                                     prior to the
occurrence of any Event of Default and after the curing or waiving of all
Events of Default that may have occurred:


 


(A)                              the duties and obligations
of the Guarantee Trustee shall be determined solely by the express provisions
of this Guarantee, and the Guarantee Trustee shall not be liable except for the
performance of such duties and obligations as are specifically set forth in
this Guarantee, and no implied covenants or obligations shall be read into this
Guarantee against the Guarantee Trustee; and


 


(B)                                in the absence of bad
faith on the part of the Guarantee Trustee, the Guarantee Trustee may
conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or opinions furnished to the
Guarantee Trustee and conforming to the requirements of this Guarantee; but in
the case of any such certificates or opinions furnished to the Guarantee
Trustee, the Guarantee Trustee shall be under a duty to examine the same to
determine whether or not on their face they conform to the requirements of this
Guarantee;


 


(ii)                                  the Guarantee Trustee
shall not be liable for any error of judgment made in good faith by a
Responsible Officer of the Guarantee Trustee, unless it shall be proved that
such Responsible Officer of the Guarantee Trustee or the Guarantee Trustee was
negligent in ascertaining the pertinent facts upon which such judgment was
made;


 


(iii)                               the Guarantee Trustee
shall not be liable with respect to any action taken or omitted to be taken by
it in good faith in accordance with the written direction of the Holders of not
less than a Majority in liquidation amount of the Capital Securities relating
to the time, method and place of conducting any proceeding for any remedy
available to the Guarantee Trustee, or exercising any trust or power conferred
upon the Guarantee Trustee under this Guarantee; and


 


(iv)                              no provision of this
Guarantee shall require the Guarantee Trustee to expend or risk its own funds
or otherwise incur personal financial liability in the performance of any of
its duties or in the exercise of any of its rights or powers, if the Guarantee
Trustee shall have reasonable grounds for believing that the repayment of such
funds is not reasonably assured to it under the terms of this Guarantee, or
security and indemnity, reasonably satisfactory to the Guarantee Trustee,
against such risk or liability is not reasonably assured to it.


 


SECTION 2.2.                       Certain
Rights of the Guarantee Trustee.


 


(a)                                  Subject to the
provisions of Section 2.1:


 


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(i)                                     The Guarantee
Trustee may conclusively rely, and shall be fully protected in acting or
refraining from acting upon, any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed, sent or presented by the
proper party or parties.


 


(ii)                                  Any direction or act
of the Guarantor contemplated by this Guarantee shall be sufficiently evidenced
by an Officer’s Certificate.


 


(iii)                               Whenever, in the
administration of this Guarantee, the Guarantee Trustee shall deem it desirable
that a matter be proved or established before taking, suffering or omitting any
action hereunder, the Guarantee Trustee (unless other evidence is herein
specifically prescribed) may, in the absence of bad faith on its part, request
and conclusively rely upon an Officer’s Certificate of the Guarantor which,
upon receipt of such request, shall be promptly delivered by the Guarantor.


 


(iv)                              The Guarantee Trustee
shall have no duty to see to any recording, filing or registration of any
instrument or other writing (or any rerecording, refiling or reregistration
thereof).


 


(v)                                 The Guarantee Trustee
may consult with counsel of its selection, and the advice or opinion of such
counsel with respect to legal matters shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in accordance with such advice or opinion. Such
counsel may be counsel to the Guarantor or any of its Affiliates and may include
any of its employees. The Guarantee Trustee shall have the right at any time to
seek instructions concerning the administration of this Guarantee from any
court of competent jurisdiction.


 


(vi)                              The Guarantee Trustee
shall be under no obligation to exercise any of the rights or powers vested in
it by this Guarantee at the request or direction of any Holder, unless such
Holder shall have provided to the Guarantee Trustee such security and
indemnity, reasonably satisfactory to the Guarantee Trustee, against the costs,
expenses (including attorneys’ fees and expenses and the expenses of the
Guarantee Trustee’s agents, nominees or custodians) and liabilities that might
be incurred by it in complying with such request or direction, including such
reasonable advances as may be requested by the Guarantee Trustee; provided,
however, that nothing contained in this Section 2.2(a)(vi) shall be
taken to relieve the Guarantee Trustee, upon the occurrence of an Event of
Default, of its obligation to exercise the rights and powers vested in it by
this Guarantee.


 


(vii)                           The Guarantee Trustee shall
not be bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document,


 


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but the Guarantee Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit.


 


(viii)                        The Guarantee Trustee may
execute any of the trusts or powers hereunder or perform any duties hereunder
either directly or by or through agents, nominees, custodians or attorneys, and
the Guarantee Trustee shall not be responsible for any misconduct or negligence
on the part of any agent or attorney appointed with due care by it hereunder.


 


(ix)                                Any action taken by the
Guarantee Trustee or its agents hereunder shall bind the Holders of the Capital
Securities, and the signature of the Guarantee Trustee or its agents alone
shall be sufficient and effective to perform any such action. No third party
shall be required to inquire as to the authority of the Guarantee Trustee to so
act or as to its compliance with any of the terms and provisions of this
Guarantee, both of which shall be conclusively evidenced by the Guarantee
Trustee’s or its agent’s taking such action.


 


(x)                                   Whenever in the
administration of this Guarantee the Guarantee Trustee shall deem it desirable
to receive instructions with respect to enforcing any remedy or right or taking
any other action hereunder, the Guarantee Trustee (A) may request instructions
from the Holders of a Majority in liquidation amount of the Capital Securities,
(B) may refrain from enforcing such remedy or right or taking such other action
until such instructions are received and (C) shall be protected in conclusively
relying on or acting in accordance with such instructions.


 


(xi)                                The Guarantee Trustee
shall not be liable for any action taken, suffered, or omitted to be taken by
it in good faith and reasonably believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Guarantee.


 


(b)                                 No provision of this
Guarantee shall be deemed to impose any duty or obligation on the Guarantee
Trustee to perform any act or acts or exercise any right, power, duty or
obligation conferred or imposed on it, in any jurisdiction in which it shall be
illegal or in which the Guarantee Trustee shall be unqualified or incompetent
in accordance with applicable law to perform any such act or acts or to
exercise any such right, power, duty or obligation. No permissive power or
authority available to the Guarantee Trustee shall be construed to be a duty.


 


SECTION 2.3.                       Not
Responsible for Recitals or Issuance of Guarantee.


 


The recitals contained in this Guarantee shall be taken as the
statements of the Guarantor, and the Guarantee Trustee does not assume any
responsibility for their correctness. The Guarantee Trustee makes no representation
as to the validity or sufficiency of this Guarantee.


 


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SECTION 2.4.                       Events
of Default; Waiver.


 


(a)                                  An Event of Default
under this Guarantee will occur upon the failure of the Guarantor to perform
any of its payment or other obligations hereunder.


 


(b)                                 The Holders of a
Majority in liquidation amount of the Capital Securities may, voting or
consenting as a class, on behalf of the Holders of all of the Capital
Securities, waive any past Event of Default and its consequences. Upon such
waiver, any such Event of Default shall cease to exist, and shall be deemed to
have been cured, for every purpose of this Guarantee, but no such waiver shall
extend to any subsequent or other default or Event of Default or impair any
right consequent thereon.


 


SECTION 2.5.                       Events
of Default; Notice.


 


(a)                                  The Guarantee Trustee
shall, within 90 days after the occurrence of an Event of Default, transmit by
mail, first class postage prepaid, to the Holders of the Capital Securities,
notices of all Events of Default actually known to a Responsible Officer of the
Guarantee Trustee, unless such defaults have been cured before the giving of
such notice, provided, however, that the Guarantee Trustee shall
be protected in withholding such notice if and so long as a Responsible Officer
of the Guarantee Trustee in good faith determines that the withholding of such
notice is in the interests of the Holders of the Capital Securities.


 


(b)                                 The Guarantee Trustee
shall not be charged with knowledge of any Event of Default unless the
Guarantee Trustee shall have received written notice thereof from the Guarantor
or a Holder of the Capital Securities, or a Responsible Officer of the
Guarantee Trustee charged with the administration of this Guarantee shall have
actual knowledge thereof.


 


ARTICLE III

THE GUARANTEE TRUSTEE


 


SECTION 3.1.                       The
Guarantee Trustee; Eligibility.


 


(a)                                  There shall at all
times be a Guarantee Trustee which shall:


 


(i)                                     not be an
Affiliate of the Guarantor; and


 


(ii)                                  be a corporation or
national association organized and doing business under the laws of the United
States of America or any state or territory thereof or of the District of
Columbia, or Person authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least 50 million U.S.
dollars ($50,000,000), and subject to supervision or examination by federal,
state, territorial or District of Columbia authority. If such corporation or
national association publishes reports of condition at least annually, pursuant
to law or to the requirements of the supervising or examining authority
referred to above, then, for the purposes of this Section 3.1(a)(ii), the
combined capital and surplus of such corporation or national association shall
be deemed to be its


 


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combined capital and surplus as set forth in its most recent report of
condition so published.


 


(b)                                 If at any time the
Guarantee Trustee shall cease to be eligible to so act under Section 3.1(a),
the Guarantee Trustee shall immediately resign in the manner and with the
effect set forth in Section 3.2(c).


 


(c)                                  If the Guarantee
Trustee has or shall acquire any “conflicting interest’ within the meaning of
Section 310(b) of the Trust Indenture Act, the Guarantee Trustee shall either
eliminate such interest or resign to the extent and in the manner provided by,
and subject to, this Guarantee.


 


SECTION 3.2.                       Appointment,
Removal and Resignation of the Guarantee Trustee.


 


(a)                                  Subject to Section
3.2(b), the Guarantee Trustee may be appointed or removed without cause at any
time by the Guarantor except during an Event of Default.


 


(b)                                 The Guarantee Trustee
shall not be removed in accordance with Section 3.2(a) until a Successor
Guarantee Trustee has been appointed and has accepted such appointment by
written instrument executed by such Successor Guarantee Trustee and delivered
to the Guarantor.


 


(c)                                  The Guarantee Trustee
appointed to office shall hold office until a Successor Guarantee Trustee shall
have been appointed or until its removal or resignation. The Guarantee Trustee
may resign from office (without need for prior or subsequent accounting) by an
instrument in writing executed by the Guarantee Trustee and delivered to the
Guarantor, which resignation shall not take effect until a Successor Guarantee
Trustee has been appointed and has accepted such appointment by an instrument
in writing executed by such Successor Guarantee Trustee and delivered to the
Guarantor and the resigning Guarantee Trustee.


 


(d)                                 If no Successor
Guarantee Trustee shall have been appointed and accepted appointment as
provided in this Section 3.2 within 60 days after delivery of an instrument of
removal or resignation, the Guarantee Trustee resigning or being removed may
petition any court of competent jurisdiction for appointment of a Successor
Guarantee Trustee. Such court may thereupon, after prescribing such notice, if
any, as it may deem proper, appoint a Successor Guarantee Trustee.


 


(e)                                  No Guarantee Trustee shall
be liable for the acts or omissions to act of any Successor Guarantee Trustee.


 


(f)                                    Upon termination of
this Guarantee or removal or resignation of the Guarantee Trustee pursuant to
this Section 3.2, the Guarantor shall pay to the Guarantee Trustee all amounts
owing to the Guarantee Trustee under Sections 7.2 and 7.3 accrued to the date
of such termination, removal or resignation.


 


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ARTICLE IV

GUARANTEE


 


SECTION 4.1.                       Guarantee.


 


(a)                                  The Guarantor irrevocably
and unconditionally agrees to pay in full to the Holders the Guarantee Payments
(without duplication of amounts theretofore paid by the Issuer), as and when
due, regardless of any defense (except as defense of payment by the Issuer),
right of set-off or counterclaim that the Issuer may have or assert. The
Guarantor’s obligation to make a Guarantee Payment may be satisfied by direct
payment of the required amounts by the Guarantor to the Holders or by causing
the Issuer to pay such amounts to the Holders.


 


(b)                                 The Guarantor hereby
also agrees to assume any and all Obligations of the Issuer and in the event
any such Obligation is not so assumed, subject to the terms and conditions
hereof, the Guarantor hereby irrevocably and unconditionally guarantees to each
Beneficiary the full payment, when and as due, of any and all Obligations to
such Beneficiaries. This Guarantee is intended to be for the Beneficiaries who
have received notice hereof.


 


SECTION 4.2.                       Waiver
of Notice and Demand.


 


The Guarantor hereby waives notice of acceptance of this Guarantee and
of any liability to which it applies or may apply, presentment, demand for
payment, any right to require a proceeding first against the Issuer or any
other Person before proceeding against the Guarantor, protest, notice of
nonpayment, notice of dishonor, notice of redemption and all other notices and
demands.


 


SECTION 4.3.                       Obligations
Not Affected.


 


The obligations, covenants, agreements and duties of the Guarantor
under this Guarantee shall in no way be affected or impaired by reason of the
happening from time to time of any of the following:


 


(a)                                  the release or
waiver, by operation of law or otherwise, of the performance or observance by
the Issuer of any express or implied agreement, covenant, term or condition
relating to the Capital Securities to be performed or observed by the Issuer;


 


(b)                                 the extension of time
for the payment by the Issuer of all or any portion of the Distributions,
Redemption Price, Special Redemption Price, Liquidation Distribution or any
other sums payable under the terms of the Capital Securities or the extension
of time for the performance of any other obligation under, arising out of, or
in connection with, the Capital Securities (other than an extension of time for
the payment of the Distributions, Redemption Price, Special Redemption Price,
Liquidation Distribution or other sums payable that results from the extension
of any interest payment period on the Debentures or any extension of the
maturity date of the Debentures permitted by the Indenture);


 


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(c)                                  any failure,
omission, delay or lack of diligence on the part of the Holders to enforce,
assert or exercise any right, privilege, power or remedy conferred on the
Holders pursuant to the terms of the Capital Securities, or any action on the
part of the Issuer granting indulgence or extension of any kind;


 


(d)                                 the voluntary or
involuntary liquidation, dissolution, sale of any collateral, receivership,
insolvency, bankruptcy, assignment for the benefit of creditors,
reorganization, arrangement, composition or readjustment of debt of, or other
similar proceedings affecting, the Issuer or any of the assets of the Issuer;


 


(e)                                  any invalidity of, or
defect or deficiency in, the Capital Securities;


 


(f)                                    the settlement or
compromise of any obligation guaranteed hereby or hereby incurred; or


 


(g)                                 any other circumstance
whatsoever that might otherwise constitute a legal or equitable discharge or
defense of a guarantor, it being the intent of this Section 4.3 that the
obligations of the Guarantor hereunder shall be absolute and unconditional
under any and all circumstances.


 


There shall be no obligation of the Holders to give notice to, or
obtain consent of, the Guarantor with respect to the happening of any of the
foregoing.


 


SECTION 4.4.                       Rights
of Holders.


 


(a)                                  The Holders of a
Majority in liquidation amount of the Capital Securities have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Guarantee Trustee in respect of this Guarantee or to direct
the exercise of any trust or power conferred upon the Guarantee Trustee under
this Guarantee; provided, however, that (subject to Sections 2.1
and 2.2) the Guarantee Trustee shall have the right to decline to follow any
such direction if the Guarantee Trustee shall determine that the actions so
directed would be unjustly prejudicial to the Holders not taking part in such
direction or if the Guarantee Trustee being advised by legal counsel determines
that the action or proceeding so directed may not lawfully be taken or if the
Guarantee Trustee in good faith by its board of directors or trustees,
executive committee or a trust committee of directors or trustees and/or
Responsible Officers shall determine that the action or proceeding so directed
would involve the Guarantee Trustee in personal liability.


 


(b)                                 Any Holder of Capital
Securities may institute a legal proceeding directly against the Guarantor to
enforce the Guarantee Trustee’s rights under this Guarantee, without first
instituting a legal proceeding against the Issuer, the Guarantee Trustee or any
other Person. The Guarantor waives any right or remedy to require that any such
action be brought first against the Issuer, the Guarantee Trustee or any other
Person before so proceeding directly against the Guarantor.


 


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SECTION 4.5.                       Guarantee
of Payment.


 


This Guarantee creates a guarantee of payment and not of collection.


 


SECTION 4.6.                       Subrogation.


 


The Guarantor shall be subrogated to all (if any) rights of the Holders
of Capital Securities against the Issuer in respect of any amounts paid to such
Holders by the Guarantor under this Guarantee; provided, however,
that the Guarantor shall not (except to the extent required by applicable
provisions of law) be entitled to enforce or exercise any right that it may
acquire by way of subrogation or any indemnity, reimbursement or other
agreement, in all cases as a result of payment under this Guarantee, if, after
giving effect to any such payment, any amounts are due and unpaid under this
Guarantee. If any amount shall be paid to the Guarantor in violation of the
preceding sentence, the Guarantor agrees to hold such amount in trust for the
Holders and to pay over such amount to the Holders.


 


SECTION 4.7.                       Independent
Obligations.


 


The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer with respect to the Capital
Securities and that the Guarantor shall be liable as principal and as debtor
hereunder to make Guarantee Payments pursuant to the terms of this Guarantee
notwithstanding the occurrence of any event referred to in subsections (a)
through (g), inclusive, of Section 4.3 hereof.


 


SECTION 4.8.                       Enforcement.


 


A Beneficiary may enforce the Obligations of the Guarantor contained in
Section 4.1 (b) directly against the Guarantor, and the Guarantor waives any
right or remedy to require that any action be brought against the Issuer or any
other person or entity before proceeding against the Guarantor.


 


The Guarantor shall be subrogated to all rights (if any) of any
Beneficiary against the Issuer in respect of any amounts paid to the
Beneficiaries by the Guarantor under this Guarantee; provided, however,
that the Guarantor shall not (except to the extent required by applicable
provisions of law) be entitled to enforce or exercise any rights that it may
acquire by way of subrogation or any indemnity, reimbursement or other
agreement, in all cases as a result of payment under this Guarantee, if, after
giving effect to such payment, any amounts are due and unpaid under this
Guarantee.


 


ARTICLE V

LIMITATION OF TRANSACTIONS; SUBORDINATION


 


SECTION 5.1.                       Limitation
of Transactions.


 


So long as any Capital Securities remain outstanding, if (a) there
shall have occurred and be continuing an Event of Default or (b) the Guarantor
shall have selected an Extension Period as provided in the Declaration and such
period, or any extension thereof, shall have commenced and be continuing, then
the Guarantor may not (x) declare or pay any


 


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dividends or distributions on,
or redeem, purchase, acquire, or make a liquidation payment with respect to,
any of the Guarantor’s capital stock or (y) make any payment of principal of or
interest or premium, if any, on or repay, repurchase or redeem any debt
securities of the Guarantor that rank pari
passu in all respects with or junior in interest to the Debentures
(other than (i) payments under this Guarantee, (ii) repurchases, redemptions or
other acquisitions of shares of capital stock of the Guarantor (A) in
connection with any employment contract, benefit plan or other similar
arrangement with or for the benefit of one or more employees, officers,
directors, or consultants, (B) in connection with a dividend reinvestment or
stockholder stock purchase plan or (C) in connection with the issuance of
capital stock of the Guarantor (or securities convertible into or exercisable
for such capital stock), as consideration in an acquisition transaction entered
into prior to the occurrence of the Event of Default or the applicable
Extension Period, (iii) as a result of any exchange, reclassification,
combination or conversion of any class or series of the Guarantor’s capital
stock (or any capital stock of a subsidiary of the Guarantor) for any class or
series of the Guarantor’s capital stock or of any class or series of the
Guarantor’s indebtedness for any class or series of the Guarantor’s capital
stock, (iv) the purchase of fractional interests in shares of the Guarantor’s
capital stock pursuant to the conversion or exchange provisions of such capital
stock or the security being converted or exchanged, (v) any declaration of a
dividend in connection with any stockholder’s rights plan, or the issuance of
rights, stock or other property under any stockholder’s rights plan, or the
redemption or repurchase of rights pursuant thereto, or (vi) any dividend in
the form of stock, warrants, options or other rights where the dividend stock
or the stock issuable upon exercise of such warrants, options or other rights
is the same stock as that on which the dividend is being paid or ranks pari passu with or junior to such stock).


 


SECTION 5.2.                       Ranking.


 


This Guarantee will constitute an unsecured obligation of the Guarantor
and will rank subordinate and junior in right of payment to all present and
future Senior Indebtedness (as defined in the Indenture) of the Guarantor. By
their acceptance thereof, each Holder of Capital Securities agrees to the
foregoing provisions of this Guarantee and the other terms set forth herein.


 


The right of the Guarantor to participate in any distribution of assets
of any of its subsidiaries upon any such subsidiary’s liquidation or reorganization
or otherwise is subject to the prior claims of creditors of that subsidiary,
except to the extent the Guarantor may itself be recognized as a creditor of
that subsidiary. Accordingly, the Guarantor’s obligations under this Guarantee
will be effectively subordinated to all existing and future liabilities of the
Guarantor’s subsidiaries, and claimants should look only to the assets of the
Guarantor for payments thereunder. This Guarantee does not limit the incurrence
or issuance of other secured or unsecured debt of the Guarantor, including
Senior Indebtedness of the Guarantor, under any indenture or agreement that the
Guarantor may enter into in the future or otherwise.


 


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ARTICLE VI

TERMINATION


 


SECTION 6.1.                       Termination.


 


This Guarantee shall terminate as to the Capital Securities (i) upon
full payment of the price payable upon redemption of all Capital Securities
then outstanding, (ii) upon the distribution of all of the Debentures to the
Holders of all of the Capital Securities or (iii) upon full payment of the
amounts payable in accordance with the Declaration upon dissolution of the
Issuer. This Guarantee will continue to be effective or will be reinstated, as
the case may be, if at any time any Holder of Capital Securities must restore
payment of any sums paid under the Capital Securities or under this Guarantee.


 


ARTICLE VII

INDEMNIFICATION


 


SECTION 7.1.                       Exculpation.


 


(a)                                  No Indemnified Person
shall be liable, responsible or accountable in damages or otherwise to the
Guarantor or any Covered Person for any loss, damage or claim incurred by
reason of any act or omission of such Indemnified Person in good faith in
accordance with this Guarantee and in a manner that such Indemnified Person
reasonably believed to be within the scope of the authority conferred on such
Indemnified Person by this Guarantee or by law, except that an Indemnified
Person shall be liable for any such loss, damage or claim incurred by reason of
such Indemnified Person’s negligence or willful misconduct with respect to such
acts or omissions.


 


(b)                                 An Indemnified Person
shall be fully protected in relying in good faith upon the records of the
Issuer or the Guarantor and upon such information, opinions, reports or
statements presented to the Issuer or the Guarantor by any Person as to matters
the Indemnified Person reasonably believes are within such other Person’s
professional or expert competence and who, if selected by such Indemnified
Person, has been selected with reasonable care by such Indemnified Person,
including information, opinions, reports or statements as to the value and
amount of the assets, liabilities, profits, losses, or any other facts
pertinent to the existence and amount of assets from which Distributions to Holders
of Capital Securities might properly be paid.


 


SECTION 7.2.                       Indemnification.


 


(a)                                  The Guarantor agrees
to indemnify each Indemnified Person for, and to hold each Indemnified Person
harmless against, any and all loss, liability, damage, claim or expense incurred
without negligence or willful misconduct on the part of the Indemnified Person,
arising out of or in connection with the acceptance or administration of the
trust or trusts hereunder, including but not limited to the costs and expenses
(including reasonable legal fees and expenses) of the Indemnified Person
defending itself against, or investigating, any claim or liability in
connection with the exercise or performance of any of the Indemnified Person’s
powers or duties hereunder. The


 


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obligation to indemnify as set forth in this Section 7.2 shall survive
the resignation or removal of the Guarantee Trustee and the termination of this
Guarantee.


 


(b)                                 Promptly after receipt
by an Indemnified Person under this Section 7.2 of notice of the commencement
of any action, such Indemnified Person will, if a claim in respect thereof is
to be made against the Guarantor under this Section 7.2, notify the Guarantor
in writing of the commencement thereof; but the failure so to notify the
Guarantor (i) will not relieve the Guarantor from liability under paragraph (a)
above unless and to the extent that the Guarantor did not otherwise learn of
such action and such failure results in the forfeiture by the Guarantor of
substantial rights and defenses and (ii) will not, in any event, relieve the
Guarantor from any obligations to any Indemnified Person other than the
indemnification obligation provided in paragraph (a) above. The Guarantor shall
be entitled to appoint counsel of the Guarantor’s choice at the Guarantor’s
expense to represent the Indemnified Person in any action for which
indemnification is sought (in which case the Guarantor shall not thereafter be
responsible for the fees and expenses of any separate counsel retained by the
Indemnified Person or Persons except as set forth below); provided, however,
that such counsel shall be satisfactory to the Indemnified Person.
Notwithstanding the Guarantor’s election to appoint counsel to represent the
Indemnified Person in any action, the Indemnified Person shall have the right
to employ separate counsel (including local counsel), and the Guarantor shall
bear the reasonable fees, costs and expenses of such separate counsel (and
local counsel), if (i) the use of counsel chosen by the Guarantor to represent
the Indemnified Person would present such counsel with a conflict of interest,
(ii) the actual or potential defendants in, or targets of, any such action
include both the Indemnified Person and the Guarantor and the Indemnified
Person shall have reasonably concluded that there may be legal defenses
available to it and/or other Indemnified Persons which are different from or
additional to those available to the Guarantor, (iii) the Guarantor shall not
have employed counsel satisfactory to the Indemnified Person to represent the
Indemnified Person within a reasonable time after notice of the institution of
such action or (iv) the Guarantor shall authorize the Indemnified Person to
employ separate counsel at the expense of the Guarantor. The Guarantor will
not, without the prior written consent of the Indemnified Persons, settle or
compromise or consent to the entry of any judgment with respect to any pending
or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
Indemnified Persons are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each Indemnified Person from all liability arising out of such claim,
action, suit or proceeding.


 


SECTION 7.3.                       Compensation;
Reimbursement of Expenses.


 


The Guarantor agrees:


 


(a)                                  to pay to the
Guarantee Trustee from time to time such compensation for all services rendered
by it hereunder as the parties shall agree to from time to time (which
compensation shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust); and


 


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(b)                                 except as otherwise
expressly provided herein, to reimburse the Guarantee Trustee upon request for
all reasonable expenses, disbursements and advances incurred or made by it in
accordance with any provision of this Guarantee (including the reasonable compensation
and the expenses and disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to its negligence or
willful misconduct.


 


The provisions of this Section 7.3 shall survive the resignation or removal
of the Guarantee Trustee and the termination of this Guarantee.


 


ARTICLE VIII

MISCELLANEOUS


 


SECTION 8.1.                       Successors
and Assigns.


 


All guarantees and agreements contained in this Guarantee shall bind
the successors, assigns, receivers, trustees and representatives of the
Guarantor and shall inure to the benefit of the Holders of the Capital
Securities then outstanding. Except in connection with any merger or
consolidation of the Guarantor with or into another entity or any sale,
transfer or lease of the Guarantor’s assets to another entity, in each case to
the extent permitted under the Indenture, the Guarantor may not assign its
rights or delegate its obligations under this Guarantee without the prior
approval of the Holders of not less than a Majority in liquidation amount of
the Capital Securities.


 


SECTION 8.2.                       Amendments.


 


Except with respect to any changes that do not adversely affect the
rights of Holders of the Capital Securities in any material respect (in which
case no consent of Holders will be required), this Guarantee may be amended
only with the prior approval of the Holders of not less than a Majority in
liquidation amount of the Capital Securities. The provisions of the Declaration
with respect to amendments thereof shall apply equally with respect to
amendments of the Guarantee.


 


SECTION 8.3.                       Notices.


 


All notices provided for in this Guarantee shall be in writing, duly
signed by the party giving such notice, and shall be delivered, telecopied or
mailed by first class mail, as follows:


 


(a)                                  If given to the
Guarantee Trustee, at the Guarantee Trustee’s mailing address set forth below
(or such other address as the Guarantee Trustee may give notice of to the
Holders of the Capital Securities):


 


Wells Fargo Bank, National Association


919 Market Street


Suite 700


Wilmington, DE 19801


Attention: Corporate Trust Division


Telecopy: 302-575-2006


Telephone: 302-575-2005


 


 


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(b)                                 If given to the
Guarantor, at the Guarantor’s mailing address set forth below (or such other
address as the Guarantor may give notice of to the Holders of the Capital
Securities and to the Guarantee Trustee):


 


National Consumer Cooperative Bank


1725 Eye Street, N.W., Suite 600


Washington, D.C. 20006


Attention: Richard L. Reed


Telecopy: (202) 336-7803


Telephone: (202) 336-7661


 


(c)                                  If given to any
Holder of the Capital Securities, at the address set forth on the books and
records of the Issuer.


 


All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid, except that if a notice or other document is refused delivery
or cannot be delivered because of a changed address of which no notice was
given, such notice or other document shall be deemed to have been delivered on
the date of such refusal or inability to deliver.


 


SECTION 8.4.                       Benefit.


 


This Guarantee is solely for the benefit of the Holders of the Capital
Securities and, subject to Section 2.1(a), is not separately transferable from
the Capital Securities.


 


SECTION 8.5.                       Governing
Law.


 


THIS GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAW OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES
THEREOF.


 


SECTION 8.6.                       Counterparts.


 


This Guarantee may contain more than one counterpart of the signature
page and this Guarantee may be executed by the affixing of the signature of the
Guarantor and the Guarantee Trustee to any of such counterpart signature pages.
All of such counterpart signature pages shall be read as though one, and they
shall have the same force and effect as though all of the signers had signed a
single signature page.


 


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  THIS GUARANTEE is executed as of the day and year first above
  written.

  
	
   

  
	
   

  	
  NATIONAL CONSUMER COOPERATIVE BANK,

  
	
   

  	
  as Guarantor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  WELLS FARGO BANK, NATIONAL

  ASSOCIATION, as Guarantee Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
						



 


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