Exhibit
10.44


 


PURCHASE AGREEMENT


 


among


 


NCB Capital Trust
I,

Issuer


 


National Consumer
Cooperative Bank,

Sponsor


 


and


 


BEAR, STEARNS
& CO. INC.




&


 


STI INVESTMENT
MANAGEMENT, INC.




Initial Purchasers


 


 


Dated as of December
15, 2003


 

















 


PURCHASE AGREEMENT, dated as of December 15, 2003
(this “Agreement”), among NCB Capital Trust I, a statutory trust created under
the laws of the State of Delaware (the “Issuer”), National Consumer Cooperative
Bank, as Sponsor under the Trust Agreement, as defined below (the “Sponsor”
and, together with the Issuer, the “Trust Parties”), and Bear, Stearns &
Co. Inc. and STI Investment Management, Inc. as initial purchasers (the
“Initial Purchasers”).


 


WHEREAS, the Issuer proposes to issue U.S. $50,000,000
Trust Preferred Securities Due January 7, 2034 (the “Securities’);


 


WHEREAS, the Securities will be issued pursuant to an
Amended and Restated Declaration of Trust to be dated as of December 17, 2003
(the “Trust Agreement”), among National Consumer Cooperative Bank, as Sponsor, Wells
Fargo Bank, National Association, as Institutional Trustee, Wells Fargo
Delaware Trust Company, as Delaware Trustee, and the Administrators named
therein;


 


WHEREAS, the Issuer has agreed not later than December
17, 2003 (the “Closing Date”), to provide the Initial Purchasers with a copy of
the Trust Agreement and any other documents required to be delivered pursuant
to the terms hereof or the Trust Agreement;


 


WHEREAS, the Issuer will use the proceeds from the
sale of the Securities to purchase Debentures (as defined in the Trust
Agreement); and


 


WHEREAS, capitalized terms used herein but not
otherwise defined herein shall have the meaning ascribed thereto in the Trust
Agreement.


 


NOW IT IS HEREBY AGREED as follows:


 


1.                                       PURCHASE AND SALE.


 


(a)                                  On the terms and subject to the
conditions of this Agreement and in reliance upon the representations and
warranties herein set forth, the Issuer agrees to sell to the Initial
Purchasers, and each Initial Purchaser agrees to purchase from the Issuer,
severally and not jointly on the Closing Date referred to below, the number of
Securities set forth in Schedule I hereto opposite the name of such Initial
Purchaser at a price per security of $1,000.


 


(b)                                 The Securities shall be issued and sold
by the Issuer to the Initial Purchasers free from all liens, charges and
encumbrances, equities and other third party rights of any nature whatsoever
created by the Trust Party, other than pursuant to this agreement.


 


(c)                                  As compensation to the Initial Purchasers
for their commitments hereunder, the Sponsor hereby agrees to pay on the
Closing Date to the Initial Purchasers (or to any affiliate of the
Initial Purchasers),
in immediately available funds, a commission of $1,000,000 as set forth in the
Flow of Funds Memorandum dated December 17, 2003.


 


2.                                       CLOSING.  On the
Closing Date, delivery of and payment for the Securities shall be made at the
offices of Bear, Stearns & Co. Inc., and or such other location or
locations as shall be mutually acceptable to the parties hereto. Delivery of
the Securities shall be


 

















 


made against payment of
the purchase price therefor to the order of the Issuer in same day funds by
transfer to an account designated by the Issuer or by such other means in same
day funds as shall be acceptable to the Initial Purchasers.  Such payment shall be made upon
authorization from the Initial Purchasers (such authorization to be given if
the conditions to the Initial Purchasers’ obligations set forth herein are
either satisfied or waived) against delivery of the Securities. The Securities
will be registered in the name or names of such holders as specified in, and
shall be in the form contemplated by, the Trust Agreement.


 


3.                                       Payment of Expenses. The Sponsor agrees to pay all costs and
expenses incident to the performance of the obligations of the Sponsor and the
Trust under this Purchase Agreement, whether or not the transactions
contemplated herein are consummated or this Purchase Agreement is terminated,
including all costs and expenses incident to (i) the authorization, issuance,
sale and delivery of the Securities and any taxes payable by the Sponsor or the
Issuer in connection therewith; (ii) the fees and expenses of qua1ifying the
Securities under the securities laws of applicable jurisdictions, and (iii) the
fees and expenses of the counsel, the accountants and any other experts or
advisors retained by the Sponsor or the Trust.


 


Notwithstanding the
foregoing, if the sale of the Securities provided for in this Purchase
Agreement is not consummated because any condition set forth herein to be
satisfied by either the Sponsor or the Trust is not satisfied, because this
Purchase Agreement is terminated pursuant to Section 9(i) or (ii) or
because of any failure, refusal or inability on the part of the Sponsor or the
Trust to perform all obligations and satisfy all conditions on its part to be
performed or satisfied hereunder other than by a reason of a default by the
Initial Purchasers, the Sponsor will reimburse the Initial Purchasers upon
demand for all reasonable out-of-pocket expenses (including the fees and all
reasonable expenses of Potter Anderson & Corroon LLP, special Delaware
counsel retained by the Trust, which fees and expenses shall not exceed $4,000)
that shall have been incurred by the Initial Purchasers in connection with the
proposed purchase and sale of the Securities. The Sponsor shall not in any
event be liable to the Initial Purchasers for the loss of anticipated profits
or other consequential damages from the transactions contemplated by this Purchase
Agreement.


 


4.                                       REPRESENTATIONS AND WARRANTIES. 
Each Trust Party hereby represents, warrants and agrees to and with the
Initial Purchasers that, as of the Closing Date, and as to itself only and not
as to the other:


 


(a)                                  with respect to the Issuer, it is duly
formed and validly existing under the laws of the State of Delaware and, with
respect to the Sponsor, and its significant subsidiaries (as defined in Rule
1-02 of Regulation S-X) (the “Significant Subsidiaries”), each is duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, in each case, with all requisite power and
authority to own or transfer, as applicable, the Debentures, to conduct its
business as required under the Trust Agreement, this Agreement or any other
documents relating to or otherwise in connection with the issue and sale of the
Securities (collectively, the “Transaction Documents”) and to perform its
obligations hereunder and under each Transaction Document, and is lawfully qualified
to do business and is in good standing in those jurisdictions in which it
conducts business and where the failure to be so qualified or in good standing
would have a material adverse effect on the business or financial condition of
such Trust Party or would otherwise be material in context of the issuance of
the Securities;


 


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(b)                                 this Agreement has been duly authorized,
executed and delivered by such Trust Party; each of the Transaction Documents other
than this Agreement to which such Trust Party is a party has been duly
authorized by such Trust Party and, when duly executed and delivered by the
other parties thereto, on the Closing Date, will constitute, legal, valid and
binding obligations of such Trust Party, except as such obligations may be
limited by bankruptcy, insolvency, reorganization and other similar laws
affecting the rights of creditors generally and the application of general
equitable principles (regardless of whether the issue of enforceability is
considered in a proceeding in equity or at law);


 


(c)                                  all outstanding shares of capital stock
of the Significant Subsidiaries have been duly authorized and validly issued
and are fully paid and nonassessable;


 


(d)                                 neither the Issuer nor the Sponsor nor
any of the Significant Subsidiaries is in breach or violation of, or default
under, with or without notice or lapse of time or both, its corporate charter,
bylaws or other governing documents (including without limitation, the Trust
Agreement);


 


(e)                                  with respect to the Issuer, on the
Closing Date, the Securities have been duly authorized by the Issuer and, when
duly executed, authenticated, issued and delivered in accordance with the Trust
Agreement against payment therefor as contemplated herein, will be validly
issued and represent undivided beneficial interests in the assets of the Trust,
entitled to the benefits provided by the Trust Agreement;


 


(f)                                    with respect to the Issuer, (i) no
consent, approval, authorization, order, registration or qualification of or
with any court or governmental agency or body is required for the issue, sale
or delivery of the Securities, and (ii) no consent, approval, authorization,
order, registration or qualification of or with any court or governmental agency
or body is required for the consummation of the other transactions contemplated
by the Transaction Documents, except in the case of each of (i) and (ii), for
those which have been obtained and are in full force and effect, and except
where the failure to obtain such consent, approval, authorization, order,
registration or qualification would not have a material adverse effect on the
business or financial condition of the Issuer and would not be material in the
context of the issuance of the Securities;


 


(g)                                 the execution and delivery by each Trust
Party of the Transaction Documents to which such Trust Party is a party, the
issue of the Securities and the consummation by each Trust Party of the other
transactions contemplated by such Transaction Documents (and compliance by each
Trust Party with the terms thereof) do not and will not conflict with or result
in a breach of any of the terms or provisions of, or constitute a default under
the organizational documents of such Trust Party; and the execution and delivery
by each Trust Party of the Transaction Documents to which it is a party, the
issue of the Securities and the consummation of the other transactions by each
Trust Party contemplated by the Transaction Documents (and compliance by each
Trust Party with the terms thereof) do not and will not conflict with or result
in a breach of any indenture, trust deed, mortgage or other agreement or
instrument to which such Trust Party is a party or by which it or any of its
properties is bound, or infringe any existing applicable law, rule, regulation,
judgment, order or decree of any government, governmental body or court,
domestic or foreign, having jurisdiction over such Trust Party or any of its
properties, except for such conflicts, breaches, defaults or infringements


 


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that would not have a
material adverse effect on the business or financial condition of such Trust
Party and would not be material in the context of the issuance of the
Securities;


 


(h)                                 there are no pending actions, suits or
proceedings against or affecting such Trust Party or any of its properties and,
to the best of such Trust Party’s knowledge, no such suits or proceedings are
threatened or contemplated that individually or in aggregate could reasonably
be expected to have a material adverse effect on the Issuer’s issuance of the
Securities;


 


(i)                                     no event has occurred which, had the
Securities already been issued, would reasonably be expected to (whether or not
with the giving of notice and/or the passage of time and/or the fulfillment of
any other requirement) constitute an Event of Default (as defined in the Trust
Agreement);


 


(j)                                     the Trust Agreement does not require
qualification under the U.S. Trust Indenture Act of 1939, as amended;


 


(k)                                  assuming compliance in all material
respects by the Initial Purchasers with their representations, warranties and
covenants in this Agreement and the transfer restrictions contained in the
Transaction Documents, the offer and sale of the Securities by the Issuer to
the Initial Purchasers do not require the registration of the Securities under
the U.S. Securities Act of 1933, as amended (the “Securities Act”);


 


(l)                                     the Issuer is not an “investment company”
as defined in the U.S. Investment Company Act of 1940, as amended;


 


(m)                               with respect to the Issuer, any taxes,
fees and other governmental charges payable by the Issuer in connection with
the execution and delivery of this Agreement and any Transaction Document or the execution, delivery and sale of the
Securities have been or will be paid on or prior to the Closing Date;


 


(n)                                 there are no contracts, agreements or
understandings between any of the Trust Parties or any affiliate thereof and
any person granting such person the right to require the Issuer to file a
registration statement under the Securities Act, with respect to any Securities
owned or to be owned by such person; and


 


(o)                                 in the case of the offer or sale of
Securities, no form of general solicitation or general advertising was used by
the Issuer or its representatives, including, but not limited to,
advertisements, articles, notices or other communications published in any
newspaper, magazine or similar medium or broadcast over television or radio, or
any seminar or meeting whose attendees have been invited by any general
solicitation or general advertising. Neither the Issuer nor any person acting
on its behalf (other than the Initial Purchasers) has offered or sold, nor will
the Issuer or any person acting on its behalf (other than the Initial Purchasers)
offer or sell directly or indirectly, any Securities or any other security in
any manner that, assuming the accuracy of the representations and warranties
and the performance of the covenants given by the Initial Purchasers, would
render the issuance and sale of any of the Securities as contemplated hereby a
violation of Section 5 of the Securities Act, nor has the Issuer authorized,
nor will it authorize, any person to act in such manner.


 


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5.                                       UNDERTAKINGS BY THE ISSUER. 
The Issuer agrees with the Initial Purchasers as follows:


 


(a)                                  Neither the Issuer, nor any of its
affiliates nor any person authorized to act on its behalf, will engage in any
directed selling efforts with respect to the Securities to any U.S. Person
except pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act. Terms used in this paragraph
have the meanings given to them by Regulation S under the Securities Act.


 


(b)                                 For so long as any of the Securities are
outstanding and are “restricted securities” within the meaning of Rule 144A,
the Issuer will provide or cause to be provided to any holder of Securities and
any prospective purchaser of the Securities designated by such a holder, upon
the request of such holder or prospective purchaser, the information required
to be provided to such holder or prospective purchaser by Rule 144A(d)(4).


 


6.                                       SELLING RESTRICTIONS. 
Each of Initial Purchasers represents and warrants to, and covenants
with, the Issuer that:


 


(a)                                  It understands that the Securities have
not been and will not be registered under the Securities Act and may not be
offered or sold within the United States except pursuant to an exemption from,
or in a transaction not subject to, the registration requirements of the
Securities Act. It has not offered or sold, and will not offer or sell, the
Securities within the United States except to persons whom it reasonably
believes to be Qualified Institutional Buyers (as defined in Rule 144A under
the Securities Act), institutional Accredited Investors (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act) or to certain persons in
transactions outside the United States in accordance with Regulation S under the
Securities Act. In connection with any offer or sale in the United States or to
or for the benefit of a U.S. Person, it will take reasonable steps to ensure
that the purchaser of such Securities is aware that such offer or sale is being
made in reliance on Rule 144A or Regulation D in a manner that would not
require registration of the Securities under the Securities Act or any blue sky
law of any State and that future transfers of the Securities may not be made
except in compliance with applicable securities laws.


 


(b)                                 Neither it nor any person acting on its
behalf has engaged or will engage in any form of general solicitation or
general advertising (as those terms are used in Rule 502(c) of Regulation D) in
connection with any offer or sale of the Securities in the United States.


 


(c)                                  It will not offer or sell the Securities
outside the United States, except in accordance with the representations
described herein and the restrictions set forth below:


 


It has offered and
sold the Securities, and will offer and sell the Securities, during the
applicable Distribution Compliance Period (as defined in Rule 902 of Regulation
S), only in accordance with Rule 903 or 904 of Regulation S under the
Securities Act. Accordingly, it represents and agrees that neither it, nor any
of its affiliates nor any person acting on its or their behalf has engaged or
will engage in any directed selling efforts with respect to the Securities, and
that it and they have complied and will comply with the offering restriction
requirements of Regulation


 


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S. It agrees that,
at or prior to the confirmation of sale of Securities, it shall have sent to
each distributor, dealer or person receiving a selling concession, fee or other
remuneration that purchases the Securities through it during the applicable
Distribution Compliance Period a confirmation or notice of substantially the
following effect:


 


“The Securities offered
hereby have not been registered under the U.S. Securities Act of 1933 (the
“Securities Act”) and may not be offered or sold within the United States or
to, or for the account or benefit of, U.S. Persons (i) as part of their
distribution at any time or (ii) until forty calendar days after the later of
the commencement of the offering of the Securities or the Closing Date, to
persons other than the Initial Purchasers or other distributors in reliance on
Regulation S, except in either case in accordance with Regulations S, Rule
144A, Regulation D or other exemptive provisions under the Securities Act. Terms used above have the
meanings given to them by Regulation S.”


 


(d)                                 It acknowledges that no action has been
or will be taken by the Issuer or any other person that would permit the offer
or sale of the Securities in any jurisdiction where action to implement such
offer or sale of the Securities is required. No Initial Purchaser shall offer
or sell any Securities in any jurisdiction except in compliance with applicable
law, and each Initial Purchaser agrees, at its own expense, to comply with all
such laws. Each Initial Purchaser shall at its own expense obtain any consent,
approval or authorization required for it to offer or sell the Securities under
the laws or regulations of any jurisdiction where it proposes to make offers or
sales of Securities.


 


7.                                       CONDITIONS PRECEDENT. 
The obligations of the Initial Purchasers hereunder shall be subject to
the accuracy in all material respects of the representations and warranties of
each Trust Party contained herein as of the date hereof, and, as of the Closing
Date (as if made on the Closing Date), to the accuracy in all material respects
of the statements of each Trust Party made in any certificates delivered
pursuant hereto on such date, to the performance in all material respects by
each Trust Party of its obligations hereunder, and to the following additional
conditions:


 


(a)                                  The Issuer shall have obtained all United
States federal and Delaware governmental authorizations required in connection
with the issue and sale of the Securities and the performance of its
obligations hereunder and under the Transaction Documents to which it is a
party.


 


(b)                                 Each Trust Party shall have furnished to
the Initial Purchasers a certificate of such Trust Party signed by, in the case
of the Trust, an Administrator and, in the case of the Sponsor, the principal
executive, financial or accounting officer, dated the Closing Date, to the
effect that such signatory has examined this Agreement and that the
representations and warranties of such party in this Agreement are true and
correct in all material respects on and as of the Closing Date with the same
effect as if made on the Closing Date, and such party has


 


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performed in all material
respects all its obligations and satisfied in all material respects all the
conditions on its part to be satisfied at or prior to the Closing Date.


 


(c)                                  The Trust Parties shall have furnished to
the Initial Purchasers the opinions of Shea & Gardner, each dated the
Closing Date, in substantially the form set out in Annex A and Annex B hereto
respectively, in a form reasonably acceptable to the Initial Purchasers.


 


(d)                                 The conditions precedent to the
performance by the Issuer of its obligations under the Trust Agreement shall
have been satisfied or waived.


 


(e)                                  Prior to the Closing Date, the Issuer
shall furnish to the Initial Purchasers such further information, certificates
and documents as the Initial Purchasers may reasonably request.


 


If any of the conditions specified in this Section 7
shall not have been fulfilled in all material respects when and as provided in
this Agreement, or if any of the opinions and certificates referred to in or
contemplated by this Agreement shall not be in all material respects reasonably satisfactory in form and
substance to the Initial Purchasers, this Agreement and all obligations of the
Initial Purchasers hereunder may be canceled by the Initial Purchasers at, or
at any time prior to, the Closing Date. Notice of such cancellation shall be
given to the Issuer in writing or by telephone or facsimile confirmed in
writing.


 


8.                                       INDEMNIFICATION.


 


(a)                                  Each Trust Party agrees, jointly and
severally, to indemnify and hold harmless the Initial Purchasers and each
person, if any, who controls the Initial Purchasers within the meaning of the
Securities Act, or the U.S. Securities Exchange Act of 1934, as amended (the
“Exchange Act”), and the respective affiliates, officers, directors and
employees of the Initial Purchasers and each such person (and each and all referred
to in Section 8(b) as an “indemnified party”), against any losses, claims,
damages or liabilities, joint or several, to which the Initial Purchasers or
such controlling person and the respective affiliates, officers, directors and
employees of the Initial Purchasers and each such person may become subject,
under the Securities Act, the Exchange Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise
out of a breach by such Trust Party of the representations, warranties and
covenants made by such Trust Party in this Agreement or any other Transaction
Document. Each Trust Party agrees, jointly and severally, to reimburse the
Initial Purchasers and each such affiliate, officer, director, employee or
controlling person for any legal or other expenses reasonably incurred by the
Initial Purchasers and each such affiliate, officer, director, employee or
controlling person in connection with investigating or defending any such loss,
claim, damage, liability or action arising out of a breach by such Trust Party
of the representations, warranties and covenants made by such Trust Party in
this Agreement or any other Transaction Document. This indemnity agreement will
be in addition to any liability that any of the Trust Parties may otherwise
have.


 


(b)                                 Promptly after receipt by an indemnified
party under this Section 8 of notice of the commencement of any action, such
indemnified party will, if a claim in respect


 


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thereof is to be made
against the indemnifying party under this Section 8, notify the indemnifying
party of the commencement thereof; but the omission and/or delay to so notify
the indemnifying party will not relieve it from any liability which it may have
to any indemnified party unless such omission and/or delay caused actual
prejudice to the indemnifying party; in case any such action is brought against
any indemnified party, and it notified the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it may elect by written notice, to assume the
defense thereof, with counsel satisfactory to such indemnified party, and after
notice from the indemnifying party to such indemnified party of its election so
to assume the defense thereof, the indemnifying party will not be liable to
such indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation. Counsel provided by the
indemnifying party may represent the indemnifying party as well as all
indemnified parties hereunder subject to the following provisions.
Notwithstanding anything to the contrary contained herein, such indemnified
party may continue any such action on its own at its own expense. If the
defendants in any action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties that are different from or additional to or in conflict with those
available to the indemnifying party, the indemnified party or parties shall
have the right to select separate counsel to assert such legal defenses and to
otherwise participate in the defense of such action on behalf of such
indemnified party or parties. The reasonable fees and expenses of such separate
counsel for the indemnified party shall be paid by the indemnifying party. The
indemnifying party may avoid its duty to indemnify under this Section 8 if the
indemnified party, without the prior written consent of the indemnifying party
(which consent shall not be unreasonably withheld), effects any settlement or
compromise of, or consents to the entry of any judgment in, any pending or
threatened action in respect of which any indemnifying party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party unless such settlement includes an unconditional release of such
indemnifying party from all liability on any claims that are the subject matter
of such action. The indemnifying party shall not be liable for any settlement
of any claim effected without its consent.


 


9.                                       TERMINATION. 
This Purchase Agreement shall be subject to termination in the absolute
discretion of the Initial Purchasers, by notice given to the Sponsor and the
Trust prior to delivery of and payment for the Securities, if prior to such
time (i) a downgrading shall have occurred in the rating accorded the Sponsor’s
debt securities or preferred stock by any “nationally recognized statistical
rating organization,” as that term is used by the Commission in Rule
15c3-1(c)(2)(vi)(F) under the Exchange Act, or such organization shall have
publicly announced that it has under surveillance or review, with possible
negative implications, its rating of the Sponsor’s debt securities or preferred
stock, (ii) the Trust shall be unable to sell and deliver to the Purchaser at
least $50,000,000 stated liquidation value of Securities, (iii) a suspension or
material limitation in trading in securities generally shall have occurred on
the New York Stock Exchange, (iv) a suspension or material limitation in
trading in any of the Sponsor’s securities shall have occurred on the exchange
or quotation system upon which the Sponsor’s securities are traded, if any, (v)
a general moratorium on commercial banking activities shall have been declared
either by federal or Delaware authorities or (vi) there shall have occurred any
outbreak or escalation of hostilities, or declaration by the United States of a
national emergency or war or other calamity or crisis, including acts of
terrorism, the effect


 


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of which on financial
markets is such as to make it, in the Initial Purchasers’ judgment,
impracticable or inadvisable to proceed with the offering or delivery of the
Securities.


 


10.                                 SURVIVAL OF REPRESENTATIONS AND
OBLIGATIONS.  The representations, warranties, agreements
and undertakings in this Agreement shall continue in full force and effect
despite completion of the arrangements for the purchase and issue of the
Securities or any investigation made by or on behalf of the Initial Purchasers.


 


11.                                 NOTICES.


 


(a)                                  Any communication shall be given by
letter or facsimile, in the case of notices to the Issuer, to it at:


 


NCB Capital Trust I


c/o National Consumer
Cooperative Bank


1725 Eye Street, N.W.,
Suite 600


Washington, D.C. 20006


Facsimile:  (202) 336-7803


Attention:  Richard L. Reed


 


in the case of notices to
the Sponsor, to it at:


 


National Consumer
Cooperative Bank


1725 Eye Street, N.W.,
Suite 600


Washington, D.C. 20006


Facsimile:  (202) 336-7803


Attention:  Richard L. Reed


 


and in the case of
notices to the Initial Purchasers:


 


Bear, Stearns & Co. Inc.


383 Madison Avenue 


New York, New York 10179 


Facsimile: 
212-272-3182 


Attention: 
Asset Backed Securities


 


STI Investment Management, Inc.


2200 Polly Drummond Office Park


Newark, Delaware 19711


Facsimile: 
302-737-3425


Attention:  Dan
Roberts


 


(b)                                 Any such communication shall take effect,
in the case of a letter, at the time of delivery and in the case of telex, at
the time of dispatch.


 


(c)                                  Any communication not by telex shall be
confirmed by letter but failure to send or receive the letter of confirmation
shall not invalidate the original communication.


 


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12.                                 GOVERNING LAW. 
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York without reference to its conflict of laws
provisions.


 


13.                                 JURISDICTION. 
Each of the parties hereto hereby irrevocably submits to the
non-exclusive jurisdiction of any New York State or United States federal court
sitting in The City and County of New York over any suit, action or proceeding
arising out of or relating to this Agreement or the transactions contemplated
hereby which is brought by the Initial Purchasers, the Issuer or the Sponsor
and irrevocably waives, to the fullest extent it may effectively do so, any
objection which it may now or hereafter have to the laying of venue of any such
proceeding.


 


14.                                 NO BANKRUPTCY PETITION. 
Each Initial Purchaser covenants and agrees that, prior to the date
which is one year and one day after the payment in full of all Securities
issued by the Issuer, it will not institute against, or join any other Person
in instituting against, the Issuer any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings or other proceedings under any Federal or
state bankruptcy or similar law. The provisions of this Section shall survive
termination of this Agreement for any reason whatsoever.


 


15.                                 SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and assigns,
and no other person will have any right or obligations hereunder.


 


16.                                 COUNTERPARTS. 
This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original, but all such counterparts shall
together constitute one and the same Agreement.


 


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IN WITNESS WHEREOF, this Agreement has been entered
into as of the date hereinabove set forth.


 


	
   

  	
  NATIONAL CONSUMER

  COOPERATIVE BANK

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
  NCB CAPITAL TRUST I

  
	
   

  	
  By: National Consumer
  Cooperative

  Bank, as Sponsor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
  BEAR, STEARNS & CO.
  INC., as Initial

  Purchaser

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
					



 


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  STI INVESTMENT
  MANAGEMENT,

  INC., as Initial Purchaser

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
					



 


12

















SCHEDULE
I


 


ALLOCATION
OF SECURITIES


 




	
  Purchaser

  	
   

  	
  Number of
  Securities

  
	
   

  	
   

  	
   

  
	
  Bear, Stearns & Co.
  Inc.

  	
   

  	
  25,000

  
	
   

  	
   

  	
   

  
	
  STI Investment
  Management, Inc.

  	
   

  	
  25,000

  
	
   

  	
   

  	
   

  
	
  Total

  	
   

  	
  50,000

  






 


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ANNEX A


 


Pursuant to Section 7(c) of the Purchase Agreement,
special counsel for the Offerors shall deliver an opinion in substantially the
following form:


 


December 17, 2003


 


Ladies and Gentlemen:


 


We have acted as counsel for National Consumer
Cooperative Bank (the “Company”), and NCB Capital Trust I , a Delaware
statutory trust (the “Trust”, and together with the Company, the “Offerors”),
in connection with the issue and sale by the Trust of 50,000 Capital Securities
(liquidation amount $1,000 per capital security) representing undivided
beneficial interests in the assets of the Trust (the “Capital Securities”), the
subsequent purchase by the Trust from the Company of $51,547,000 in aggregate
principal amount of NCB Capital Trust I Junior Subordinated Deferrable Interest
Debentures (the “Debt Securities”) and the guarantee by the Company of the Capital
Securities pursuant to a Guarantee Agreement (the “Guarantee Agreement”).
Capitalized terms used but not defined herein shall have the meanings assigned
to such terms in the Purchase Agreement effective as of December 17, 2003 by
and among the Company, the Trust, Richard L. Reed and Heather O’Hara (the
“Purchase Agreement”).


 


We have examined originals or copies of (i) the
Articles of Incorporation of the Company, together with all amendments thereto
(“Articles of Incorporation”), (ii) the Bylaws of the Company, as amended
(“Bylaws”), (iii) certain resolutions of the Board of Directors of the Company,
(iv) the Certificate of Trust of the Trust as filed with the Secretary of State
of the State of Delaware on December 15, 2003 (v) the Declaration of Trust of
the Trust effective as of December 17, 2003 between the Company, Wells Fargo
Bank, National Association, as trustee (“Resident Trustee”) and Richard L. Reed
and Heather O’Hara, as administrators, (vi) the Amended and Restated
Declaration of Trust (the “Declaration”) effective as of December 17, 2003
among the Company, Resident Trustee and Richard L. Reed and Heather O’Hara, as
administrators (the “Administrators”), (vii) the Guarantee Agreement effective
as of December 17, 2003 between the Company and Wells Fargo Bank, National
Association, as Guarantee Trustee, (viii) the Indenture effective as of December
17, 2003 between the Company and Wells Fargo Bank, National Association, as
Indenture Trustee (the “Indenture”), and (ix) such other documents and records
as we have deemed necessary and relevant for purposes hereof.


 


In addition, we are entitled to rely and have relied
on certificates of public officials, officers and employees of, and accountants
for, the Offerors and the Significant Subsidiaries as to certain matters of
fact relating to this opinion and have made such investigations of law as we
have deemed necessary and relevant as a basis hereof. We have assumed the legal
capacity of all natural persons, the genuineness of all signatures, the authenticity
of all documents and records submitted to us as originals, the conformity to
original documents and records of all documents and records submitted to us as
copies, and the truthfulness of all statements of fact contained therein.


 


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Based on the foregoing and subject to the limitations
and assumptions set forth herein, and having due regard for such legal
considerations as we deem relevant, we are of the opinion that:


 


1.                                       The Company has been duly incorporated
and is validly existing and in good standing. 
Each of the Significant Subsidiaries is duly organized, validly existing
and in good standing under the laws of its jurisdiction of organization. Each
of the Company and the Significant Subsidiaries has full corporate power and
authority to own or lease its properties and to conduct its business as such
business is currently conducted in all material respects. To the best of our
knowledge, all outstanding shares of capital stock of the Significant
Subsidiaries have been duly authorized and validly issued and are fully paid
and nonassessable.


 


2.                                       The issuance, sale and delivery of the
Debt Securities in accordance with the terms and conditions of the Subscription
Agreement and the Transaction Documents have been duly authorized by all
necessary actions of the Company. There are no preemptive or other rights to
subscribe for or to purchase any shares of capital stock or equity securities
of the Company or the Significant Subsidiaries pursuant to the corporate
Articles of Incorporation or charter, Bylaws or other governing documents of
the Company or the Significant Subsidiaries, or, to the best of our knowledge,
any agreement or other instrument to which either the Company or any of the
Significant Subsidiaries is a party or by which either the Company or any of
the Significant Subsidiaries may be bound.


 


3.                                       The Offerors have all requisite corporate
and trust power to enter into and perform their obligations under the Purchase
Agreement and the Subscription Agreement, and the Purchase Agreement and the
Subscription Agreement have been duly and validly authorized, executed and
delivered by the Offerors; the Subscription Agreement constitutes the legal,
valid and binding obligation of the Offerors enforceable in accordance with
their terms, except as the enforcement thereof may be limited by general
principles of equity and by bankruptcy or other laws relating to or affecting
creditors’ rights generally, and except as the indemnification and contribution
provisions thereof may be limited under applicable laws and certain remedies
may not be available in the case of a non material breach.


 


4.                                       Each of the Indenture and the Guarantee
Agreement has been duly authorized, executed and delivered by the Company, and
(in the case of the Indenture and the Guarantee, respectively, assuming it is
duly authorized, executed and delivered by the Indenture Trustee and the
Guarantee Trustee, respectively) constitutes a valid and legally binding
obligation of the Company enforceable in accordance with its terms, subject to
the effect of bankruptcy, insolvency, reorganization, receivership, moratorium
and other laws affecting the rights and remedies of creditors generally and of
general principles of equity.


 


5.                                       The Debt Securities have been duly
authorized, executed and delivered by the Company, are entitled to the benefits
of the Indenture and when authenticated in accordance with the provisions of
the Indenture and delivered to and paid for by the Trust, will constitute legal,
valid and binding obligations of the Company enforceable against the Company in
accordance with their terms, subject to the effect of bankruptcy, insolvency,
reorganization, receivership, moratorium and other laws affecting the rights
and remedies of creditors generally and of general principles of equity.


 


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6.                                       The execution, delivery and performance
of the Purchase Agreement and the consummation of the transactions contemplated
by the Purchase Agreement and the Trust Agreement do not and will not conflict
with, result in the creation or imposition of any material lien, claim, charge,
encumbrance or restriction upon any property or assets of the Company or the
Significant Subsidiaries pursuant to, or constitute a material breach or
violation of, or constitute a material default under, with or without notice or
lapse of time or both, any of the terms, provisions or conditions of the
articles of incorporation or charter, bylaws or other governing documents of
the Company or the Significant Subsidiaries, or to the best of our knowledge,
any material contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease, franchise, license or any other agreement or instrument
to which the Company or the Significant Subsidiaries is a party or by which any
of them or any of their respective properties may be bound or any order,
decree, judgment, franchise, license, permit, rule or regulation of any court,
arbitrator, government, or governmental agency or instrumentality, domestic or
foreign, known to such counsel having jurisdiction over the Company or the
Significant Subsidiaries or any of their respective properties which, in each
case, is material to the Company and the Significant Subsidiaries on a
consolidated basis, except for such conflicts, breaches, defaults, lien, claim,
charge, encumbrance or restriction that would not have a material adverse
effect on the business or financial condition of the Company and would not be
material in the context of the issuance of the Securities.


 


7.                                       Except for filings, registrations, or
qualifications that may be required by securities laws, no authorization,
approval, consent or order of, or filing, registration or qualification with,
any person (including, without limitation, any court, governmental body or
authority) is required under the laws of the State of New York in connection
with the transactions contemplated by the Purchase Agreement in connection with
the offer and sale of the Capital Securities as contemplated by the Purchase
Agreement.


 


8.                                       To the best of our knowledge (i) no
action, suit or proceeding at law or in equity is pending or threatened to
which the Offerors or the Significant Subsidiaries is or may be a party, and
(ii) no action, suit or proceeding is pending or threatened against or
affecting the Offerors or the Significant Subsidiaries or any of their
properties, before or by any court or governmental official, commission, board
or other administrative agency, authority or body, or any arbitrator, wherein
an unfavorable decision, ruling or finding could reasonably be expected to have
a material adverse effect on the consummation of the Purchase Agreement or the
issuance and sale of the Capital Securities as contemplated therein or the
condition (financial or otherwise), earnings, affairs, business, or results of
operations of the Offerors and the Significant Subsidiaries on a consolidated
basis.


 


9.                                       Assuming the accuracy of the
representations and warranties and compliance with the agreements contained in
the Purchase Agreement, it is not necessary in connection with the offering,
sale and delivery of the Capital Securities by the Trust to the Initial
Purchasers, the Debt Securities and the Guarantee Agreement (or the Guarantee)
to register the same under the Securities Act under the circumstances
contemplated in the Purchase Agreement and the Subscription Agreement.


 


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10.                                 Neither the Company nor the Trust is an
“investment company” or an entity “controlled” by an “investment company”, in
each case within the meaning of the Investment Company Act of 1940, as amended.


 


The foregoing opinion is, with your concurrence,
predicated upon and qualified in its entirety by the following:


 


(a)                                  The foregoing opinion is based on and is
limited to the law of the State of New York and the relevant law of the United
States of America.


 


(b)                                 Whenever our opinion is based on
circumstances “to the best of our knowledge,” “known to us,” or similar expressions,
we have relied exclusively on certificates of officers or representatives of
the Offerors or the Significant Subsidiaries, as applicable (after discussing
the contents thereof with such officers), as to the existence or nonexistence
of the circumstances upon which our opinion is predicated. We have no reason to
believe, however, that any such certificate is untrue or inaccurate in any
material respect.


 


This opinion is delivered solely to you may not be
used by you for any other purpose and may not be quoted, circulated or
published, in whole or in part, or otherwise referred to or furnished to any
other person other than your counsel, without our express prior written
authorization.


 


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ANNEX
B


 


Pursuant to Section 7(c) of the Purchase Agreement,
tax counsel for the Offerors shall deliver an opinion in substantially the
following form:


 


We have acted as special tax counsel to National
Consumer Cooperative Bank (the “Company”), in connection with the offering by NCB
Capital Trust I (the “Trust”) of 50,000 TP Securities (liquidation amount
$1,000 per capital security) (the “Capital Securities”). The Capital Securities
represent undivided beneficial ownership interests in $51,547,000 in aggregate
principal amount of Junior Subordinated Debt Securities due 2033 of the Company
(the “Subordinated Debt Securities”). This opinion letter is furnished pursuant
to Section 5(c) of the Purchase Agreement dated December 15, 2003 between the
Company, the Trust and you.


 


In arriving at the opinions expressed below we have
examined executed copies of (i) the Amended and Restated Declaration of Trust
of the Trust dated the date hereof (the “Declaration”), and (ii) the Indenture
relating to the issuance of the Subordinated Debt Securities dated the date
hereof (the “Indenture”) (together, the “Transaction Documents”). In addition,
we have made such investigations of law and fact as we have deemed appropriate
as a basis for the opinion expressed below.


 


It is our opinion that, under current law and assuming
the performance of the Transaction Documents in accordance with the terms
described therein, the Subordinated Debt Securities will be treated for United
States federal income tax purposes as indebtedness of the Company.


 


It is our opinion that the Trust will be classified
for United States federal income tax purposes as a grantor trust and not as an
association taxable as a corporation.


 


Our opinion is based on the U.S. Internal Revenue Code
of 1986, as amended, Treasury regulations promulgated thereunder, and
administrative and judicial interpretations thereof, all as of the date hereof
and all of which are subject to change, possibly on a retroactive basis. In
rendering this opinion, we are expressing our views only as to the federal
income tax laws of the United States of America.


 


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