Exhibit 10.40


 


NATIONAL CONSUMER COOPERATIVE BANK


 












 


FIRST AMENDMENT


Dated  as
of  December 15, 2003


 


 


to


 


 


NOTE PURCHASE AGREEMENT


Dated as of January 8,
2003


 












 


Re:  $50,000,000 5.52% Senior Notes

Due  January 8, 2009


 




 




















 


FIRST AMENDMENT TO NOTE PURCHASE
AGREEMENT


 


This First Amendment  dated
as of December 15, 2003 (the or this “First Amendment”) to the Note Purchase
Agreement dated as of January 8, 2003 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 First Amendment (collectively, the “Noteholders”).


 


RECITALS:


 


A.                The
Company and each of the Noteholders have heretofore entered into the Note
Purchase Agreement dated as of January 8, 2003 (the “Note Agreement”).  The Company has heretofore issued
$50,000,000 of its 5.52% Senior Notes Due January 8, 2009 (the “Notes”)
dated January 8, 2003 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 First 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 First 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
10.6 of the Note Agreement shall be and is hereby amended by adding, at the
beginning of that Section, the phrase “Except as set forth in Section 10.9”.


 


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


 


Section
10.9.                         Class A
Notes.


 


(a)                                  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.


 


(b)                                 No
Amendments.  The Company
shall not amend, modify, terminate, or waive any of its rights under the
Financing Agreement or any of the Class A 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
(i) the Company may enter into an Amended and Restated Financing Agreement
having terms and conditions substantially identical to those stated in Schedule
10.9, “Terms of Amended and Restated Financing Agreement”, attached hereto.


 


Section 1.3.                                Schedule
B to the Note Agreement, “Defined Terms,” is amended (a) in the definition of
“Consolidated Effective Net Worth,” by substituting a semicolon for the period
at the end of (b), inserting “ plus,” and adding “(c) the aggregate
outstanding principal
amount of all Indebtedness which specifically by its terms ranks equally with
or subordinated to the Class A Notes,” and (b) in the definition of “Debt,” at
the end of (a) before the semicolon, adding “, and trust preferred securities”.


 


SECTION
2.                                REPRESENTATIONS
AND WARRANTIES OF THE COMPANY.


 


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


 


2

















 


(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 First Amendment and
to perform the provisions hereof and the provisions of the Note Agreement, as
amended by this First Amendment;


 


(b)                                 this
First 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 First 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 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 First 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 First Amendment or performance by the
Company of the Note Agreement, as amended by this First Amendment;


 


(f)                                    as
of the date hereof and after giving effect to this First 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.


 


3

















 


SECTION
3.                                CONDITIONS
TO EFFECTIVENESS OF THIS FIRST AMENDMENT.


 


Section
3.1.                                This
First 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 First Amendment, duly executed by the Company and the
holders of at least 51% of the outstanding principal 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 Prudential Agreements have been amended substantially as
proposed in the forms annexed hereto as Exhibits A, B, C and D, 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 First Amendment, certified by its Secretary or an Assistant
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 First 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 Chapman
and Cutler LLP, special counsel to the Noteholders, in connection with the
negotiation, preparation, approval, execution and delivery of this First
Amendment.


 


SECTION
5.                                MISCELLANEOUS.


 


Section
5.1.                                This
First Amendment shall be construed in connection with and as part of the Note
Agreement, and except as modified and expressly amended by this First
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 First Amendment may refer to
the Note Agreement without making specific reference to this First Amendment
but nevertheless all such references shall include this First Amendment unless
the context otherwise requires.


 


4

















 


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


 


Section
5.4.                                This
First 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.


 


Section
5.5.                                The
execution hereof by you shall constitute a contract between us for the uses and
purposes hereinabove set forth, and this First 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:

  	
  Richard
  L. Reed

  
	
   

  	
   

  	
  Title:

  	
  Managing Director,
  Chief Financial

  Officer and Treasurer

  
	
   

  	
   

  
	
   

  	
   

  
	
  Accepted
  and Agreed to:

  	
   

  
	
   

  	
   

  
	
   

  	
  Metropolitan Life Insurance Company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
					



 


5

















 


	
   

  	
  MetLife Investors USA Insurance Company

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Metropolitan
  Life Insurance Company, as

  Investment Manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  New England Life Insurance Company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Metropolitan
  Life Insurance Company, as

  Investment Manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  First MetLife Investors Insurance Company

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Metropolitan
  Life Insurance Company, as

  Investment Manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


6

















 


	
   

  	
  MetLife Bank, National Association

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Metropolitan
  Life Insurance Company, as

  Investment Manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  GREAT-WEST
  LIFE & ANNUITY INSURANCE COMPANY

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


7

















 


Schedule 10.9


Terms of Amended and Restated Financing Agreement


(Attached)


 


 


8