exv10w51



 






Ex. 10.51




National Consumer Cooperative Bank










Second Amendment 



Dated as of
December 28, 2004








to




NOTE PURCHASE AND UNCOMMITTED MASTER SHELF AGREEMENT



Dated as of December 28, 2001










Re: $55,000,000 6.99 % Senior Notes



Due December 28, 2006




	 	 	 	 	 	 	 
	 
	

	 	 
	 	 
	 	 






 









 






Second Amendment




     This Second Amendment dated as of December 28, 2004 (the or this “Second
Amendment”) to the Note Purchase and Uncommitted Master Shelf Agreement dated as of December 28,
2001 is between National Consumer Cooperative Bank (d/b/a/ National Cooperative Bank), a
banking corporation chartered pursuant to the National Consumer Cooperative Bank Act, as amended,
12 U.S.C. §§3001-3051 (the “Company”), and each of the institutions which is a signatory to this
Second Amendment (collectively, the “Noteholders”).



Recitals:




          A.      The Company and each of the Noteholders have heretofore entered into the Note
Purchase and Uncommitted Master Shelf Agreement dated as of December 28, 2001 (as
amended and in effect on the date hereof, the “Note Agreement”). The Company has heretofore
issued $55,000,000 of its 6.99 % Senior Notes Due December 28, 2006 (the “Notes”) pursuant
to the Note Agreement.



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



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



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



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



Section 1.      Amendments.




          Section 1.1.      Paragraph 1B shall be and is hereby amended by deleting the reference
to “$30,000,000” appearing therein and replacing “$115,000,000” therefor.



          Section 1.2.      Paragraphs 2B(1) and 2B(2) shall be and are hereby amended in their
entirety to read as follows:




          “2B(1).      Facility. Prudential is willing to consider, in its sole discretion
and within limits which may be authorized for purchase by Prudential and Prudential
Affiliates from time to time, the purchase of Shelf Notes pursuant to this Agreement. As
used herein, the “Facility” shall refer to the willingness of Prudential to consider such
purchase of Shelf Notes. The “Available Facility Amount” shall refer to, at any time, the
aggregate principal amount of Shelf Notes stated in paragraph 1B, minus the



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aggregate principal amount of Shelf Notes purchased and sold pursuant to this
Agreement during the Issuance Period, minus the aggregate principal amount of Accepted Notes
(as hereinafter defined) which have not yet been purchased and sold hereunder during the
Issuance Period; provided, however, that in no event shall the aggregate principal
amount of Series A Notes, other Shelf Notes or 1999 Notes held by Prudential Affiliates
exceed $150,000,000. NOTWITHSTANDING THE WILLINGNESS OF PRUDENTIAL TO CONSIDER PURCHASES OF
SHELF NOTES, THIS AGREEMENT IS ENTERED INTO ON THE EXPRESS UNDERSTANDING THAT NEITHER
PRUDENTIAL NOR ANY PRUDENTIAL AFFILIATE SHALL BE OBLIGATED TO MAKE OR ACCEPT OFFERS TO
PURCHASE SHELF NOTES, OR TO QUOTE RATES, SPREADS OR OTHER TERMS WITH RESPECT TO SPECIFIC
PURCHASES OF SHELF NOTES, AND THE FACILITY SHALL IN NO WAY BE CONSTRUED AS A COMMITMENT BY
PRUDENTIAL OR ANY PRUDENTIAL AFFILIATE.




          2B(2).      Issuance Period. Shelf Notes may be issued and sold pursuant to this
Agreement after December 28, 2004 and until the earlier of (i) December 28, 2007 (or if
such day is not a Business Day, the Business Day next preceding such day) and (ii) the
thirtieth day after Prudential shall have given to the Company, or the Company shall have
given to Prudential, written notice stating that it elects to terminate the issuance and
sale of Shelf Notes pursuant to this Agreement (or if such thirtieth day is not a Business
Day, the Business Day next preceding such thirtieth day). The period during which Shelf
Notes may be issued and sold pursuant to this Agreement is herein called the “Issuance
Period”.”



          Section 1.3.      Section 6B shall be and is hereby amended by deleting the reference to “clause
(1) and clause (2)” appearing in the last paragraph thereof and substituting “clause (a) and
clause (b)” therefor.



          Section 1.4.      Section 8 shall be and is hereby amended by inserting the following new
paragraph 8R in the appropriate location:




          “8R Foreign Assets Control Regulations, Etc. (i) Neither the sale of the Notes by the
Company hereunder nor its use of the proceeds thereof will violate the Trading with the
Enemy Act, as amended, or any of the foreign assets control regulations of the United
States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) or any enabling
legislation or executive order relating thereto.




          (ii)      Neither the Company nor any Subsidiary (a) is a Person described or designated
in the Specially Designated Nationals and Blocked Persons List of the Office of Foreign
Assets Control or in Section 1 of the Anti-Terrorism Order or (b) engages in any dealings
or transactions with any such Person. The Company and its Subsidiaries are in compliance,
in all material respects, with the USA Patriot Act.




          (iii)      No part of the proceeds from the sale of the Notes hereunder will be used,
directly or indirectly, for any payments to any governmental official or employee,
political party, official of a political party, candidate for political office, or anyone
else



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acting in an official capacity, in order to obtain, retain or direct business or
obtain any improper advantage, in violation of the United States Foreign Corrupt Practices
Act of 1977, as amended, assuming in all cases that such Act applies to the Company.”



          Section 1.5.      Section 10B shall be and is hereby amended by inserting the following
definition in the appropriate alphabetic location:




          ‘“1999
Notes” shall mean the 7.68% Senior Notes due
December 28, 2005, issued in the original principal amount of
$30,000,000.’



          Section 1.6.      Prudential hereby designates the following individuals as “Authorized
Officers” for purposes of the Note Agreement:



Paul L. Meiring

Yvonne M. Guajardo

Kevin J. Kraska

Christopher H. Carey




          Section 1.7.       Schedule 8O to the Note Agreement shall be and is hereby amended by
substituting the attached Schedule 80 therefor.



Section 2.      Representations and Warranties of the Company.




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




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




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




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



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




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




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




          (g)      all the representations and warranties contained in Section 8 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; provided that Schedule 8O to the
Note Agreement is amended by substituting the attached Schedule 80.



Section 3.       Conditions to Effectiveness of This Second Amendment.




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




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




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




          (c)      the Noteholders shall have received a certificate dated the date hereof of the
Secretary or an Assistant Secretary and one other officer of the Company (together with
such evidence thereof as may be reasonably requested by the Purchasers) (i) certifying the
names and true signatures of the officers of the Company authorized to sign this Second
Amendment and any other documents to be delivered in connection with the Note Agreement,
(ii) attaching a certified copy of the By-laws of the Company as in effect on the date
hereof and (iii) certifying that there has been no amendment to or



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supplement of the Company’s charter since December 7, 1989 and that the charter
remains in effect on the date hereof.




          (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;




          (e) the Noteholders shall have received an officer’s certificate signed by the
President or a Vice President and the Treasurer or an Assistant Treasurer of the
Company, certifying that the conditions specified in Section 3.1 of this Second Amendment have
been fulfilled;




          (f) such additional documents or certificates with respect to legal matters or
corporate or other proceedings related to the transactions contemplated hereby as may
be reasonably requested by the Noteholders; and




          (g) the Company shall have paid Prudential Investment Management, Inc.
(and Prudential Investment Management, Inc. shall have received) on the date hereof a
facility fee in the amount of $25,000.



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




Section 4. Miscellaneous.




          Section 4.1.      This Second Amendment shall be construed in connection with and as part of the
Note Agreement, and except as modified and expressly amended by this Second Amendment, all terms,
conditions and covenants contained in the Note Agreement and the Notes are hereby ratified and
shall be and remain in full force and effect.



          Section 4.2.      Any and all notices, requests, certificates and other instruments executed and
delivered after the execution and delivery of this Second Amendment may refer to the Note
Agreement without making specific reference to this Second Amendment but nevertheless all such
references shall include this Second Amendment unless the context otherwise requires.



          Section 4.3.      The descriptive headings of the various Sections or parts of this Second
Amendment are for convenience only and shall not affect the meaning or construction of any of the
provisions hereof.



          Section 4.4.      This Second Amendment shall be construed and enforced in accordance with, and
the rights of the parties shall be governed by, the law of the State of New York excluding
choice-of-law principles of the law of such State that would require the application of the laws
of a jurisdiction other than such State.



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          Section 4.5.      The execution hereof by you shall constitute a contract between us for the uses
and purposes hereinabove set forth, and this Second Amendment may be executed in any number of
counterparts, each executed counterpart constituting an original, but all together only one
agreement.



	 	 	 	 	 	 	 
	 	 	National Consumer Cooperative Bank
	 
	 	 	 	 	 	 
	

	 	By
	 	 
	 	 
	

	 	 
	 	

	 	 
	

	 	 	 	Name:	 	 
	

	 	 	 	Title:	 	 






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Accepted and Agreed to:




	 	 	 	 	 	 	 
	 	 	The Prudential Insurance Company Of

America
	 
	 	 	 	 	 	 
	

	 	By:	 	 	 	 
	

	 	 	 	

Name: Yvonne Guajardo

Title: Vice President
	 	  






	 	 	 	 	 	 	 
	 	 	Hartford Life Insurance Company
	

	 	By:
	 	Prudential Private Placement Investors,	 	 
	

	 	 	 	L.P., as Investment Advisor	 	 
	

	 	By:
	 	 Prudential Private Placement Investors,	 	 
	

	 	 	 	Inc., General Partner	 	 






	 	 	 	 	 	 	 
	

	 	By:	 	 	 	 
	

	 	 	 	

	 	 
	

	 	 	 	Name: Yvonne Guajardo

Title: Vice President	 	 







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SCHEDULE 8O




     LIENS (PARAGRAPH 6(C)




Section 10.5 of the Bank Loan Agreement provides
for a Lien and right of setoff in favor of the Agent and the banks
party thereto with respect to deposits or other sums due to the
Company from the Agent or such banks.



     Each of the Company and various subsidiaries sells mortgage loans, retail grocery loans,
ESOP loans and other loans from its portfolio in the ordinary course of business, structured either
as an Asset Securitization or a sale of whole loans. The purchaser typically provides for an
alternative security interest and files a financing statement covering the loans sold to it in
order to protect itself against a subsequent determination that such sale was not a sale but rather
a loan.



     In order to provide a liquidity facility, NCB, FSB is party to a Blanket Agreement, dated as
of November 30, 2000, as supplemented by Addenda dated as of October 10, 2002, and February 26,
2004, with the Federal Home Loan Bank of Cincinnati (the “FHLB”) pursuant to which it grants a
security interest to the FHLB in its FHLB stock and in its mortgage portfolio as security for
advances and letters of credit that the FHLB agree to make to NCB, FSB.



SUBSIDIARIES AND AFFILIATES (PARAGRAPH 8A)




SUBSIDIARIES AND AFFILIATES




	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	Jurisdiction of	 	 	 	 
	 	Name of Subsidiary/Affiliate	 	 	Incorporation	 	 	Nature and Extent of Affiliation	 
	 	NCB Capital Corporation **

	 	 	Delaware
	 	 	Wholly owned subsidiary of
the Company	 
	 	NCB Financial Corporation **

	 	 	Delaware
	 	 	Wholly owned subsidiary of
the Company	 
	 	NCB, FSB**

	 	 	Federal
Charter (Office of
Thrift
Supervision)
	 	 	Wholly owned subsidiary of
NCB Financial Corporation	 
	 	EOS Financial Group, Inc.**

	 	 	Delaware
	 	 	Wholly owned subsidiary of
the Company	 
	 







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	 	NCB Development Corporation (Affiliate)

	 	 	District of
Columbia non-profit
corporation
	 	 	The
  Company  was
 directed  by  12  U.S.C.
§3051(b) to organize
NCBDC, which has no
capital stock. Six of
its nine directors
are directors of the
Company. The Company
makes annual
contributions to
NCBDC and provides
office space and
services for which
the Company is
reimbursed at its
cost.	 
	 	 
	 	 	 	 	 	 	 
	 











	**	 	Restricted Subsidiary





     The Company and the Subsidiaries provide a broad array of financial services and products
and related services and products to the Nation’s cooperative-related business sector, including
but not limited to commercial and real estate lending, mortgage banking, capital markets and
advisory services, leasing and lease financing, depository services, asset securitization,
derivatives, and franchise services.



INDEBTEDNESS (PARAGRAPH 8O)




     As of December 17, 2004, the Company had outstanding Debt for borrowed
money as follows:



	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 
	 	Investor	 	 	Amount	 	 	Maturity	 
	 	 	 	 	 	 	 	 	 
	 	Financing Agreement by and Between the U.S. Treasury
and NCB	 	 	 	 	 	 	 	 	 
	 	Class A Note 1A-2003-5	 	 	$	39,310,165.45	 	 	 	March 15, 2005	 
	 	Class A Note 2A-2003-1	 	 	$	20,717,944.05	 	 	 	December 15, 2005	 
	 	Class A Note  3A-2003-l	 	 	$	27,564,085.50	 	 	 	December 15, 2006	 
	 	Class A Note 4A-2003-1	 	 	$	32,846,805.00	 	 	 	December 15, 2010	 
	 	Class A Note-5A-2003-1	 	 	$	6,050,000.00	 	 	 	December 15, 2013	 
	 	

	 	 	 	 	 	 	 	 	 	(Final Maturities
October 31, 2020)	 
	 	 	 	 	 	 	 	 	 
	 	Fleet Bank, N.A., et al.	 	 	$	350,000,000	 	 	 	 	 
	 	

	 	Tranche A $175,000,000
	 	 	($	40,000,000 outstanding)
	 	 	May 7, 2006	 
	 	

	 	Tranche B $175,000,000
	 	 	 	 	 	 	 	May 7, 2008	 
	 	 	 	 	 	 	 	 	 
	 	Commercial Paper Program	 	 	$	250,000,000	 	 	 	 	 
	 	

	 	 	 	 	($	143,379,000 outstanding)
	 	 	 
	 	 	 	 	 	 	 	 	 





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	 	Wachovia (Bid Line)

	 	 	 $10,000,000

($0 outstanding)
	 	 	On demand	 
	 	 
SunTrust Bank (Bid Line)

	 	 	 
$7,500,000

($0 outstanding)
	 	 	 
July 31, 2005	 
	 	 
Fleet Bank N.A. (Bid Line)

	 	 	 
$5,000,000

($0 outstanding)
	 	 	 
May 27, 2005	 
	 






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Disclosures of the Company (Cont.)




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 
	 	Investor	 	 	Amount	 	 	Maturity	 
	 	 	 	 	 	 	 	 	 
	 	Medium Term Notes
	 	 	 	 	 	 	 	 	 	 	 
	 	

	 	Issue date: 5/24/01	 	 	 	 	 	 	 	 	 
	 	

	 	Issue date: 6/14/01
	 	 	$	5,000,000	 	 	 	May 24, 2006	 
	 	

	 	Issue date: 5/14/03
	 	 	$	20,000,000	 	 	 	June 14, 2006	 
	 	

	 	 	 	 	$	15,000,000	 	 	 	May 15, 2006 (call)	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 
	 	Prudential Insurance Company of America	 	 	$	30,000,000	 	 	 	December 28, 2005	 
	 	Prudential Insurance Company of America	 	 	$	40,000,000	 	 	 	December 28, 2006	 
	 	Prudential Insurance Company of America	 	 	$	10,000,000	 	 	 	December 28, 2006	 
	 	Hartford Life Insurance Company	 	 	$	5,000,000	 	 	 	December 28, 2006	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 
	 	Metropolitan Life Insurance Company	 	 	$	20,500,000	 	 	 	January 8, 2009	 
	 	MetLife Investors USA Insurance Company	 	 	$	10,000,000	 	 	 	January 8, 2009	 
	 	Great West Life & Annuity Ins. Company	 	 	$	10,000,000	 	 	 	January 8, 2009	 
	 	New England Life Insurance Company	 	 	$	5,000,000	 	 	 	January 8, 2009	 
	 	First MetLife Investors Insurance Company	 	 	$	2,500,000	 	 	 	January 8, 2009	 
	 	MetLife Bank, National Association	 	 	$	2,000,000	 	 	 	January 8, 2009	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 
	 	Trust Preferred (Bear Stearns Placed)	 	 	$	25,000,000	 	 	 	January 7, 2009 (call)	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 
	 	Trust Preferred (STI
Investment Management, Inc., Placed)	 	 	$	25,000,000	 	 	 	January 7, 2009 (call)	 
	 	 	 	 	 	 	 	 	 
	 	Short Term Borrowing Program
Imark Group, Inc.	 	 	$	0	 	 	 	On Demand	 
	 	 	 	 	 	 	 	 	 





All such indebtedness is unsecured.


     As of December 17, 2004, NCB, FSB had the following outstanding:



	 	 	 	 	 	 	 	 	 
	 	Type

	 	 	Amount
	 	 	Maturity	 
	 






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	 	FHLB Advances

	 	 	$	128,100,000.00	 	 	 	December 20, 2004

	 
	 	FHLB Letters of Credit

	 	 	$	10,615,937.44	 	 	 	 

	 
	 





     SWAPS



     As of December 17, 2004, the Company had the following swaps:



	 	 	 	 	 	 	 	 
	 
	 	 Counter-Party	 	 	Notional	 
	 	Calyon

	 	 	$	82,102,006.30	 	 
	 	Fleet

	 	 	$	22,677,000.00	 	 
	 	PNC

	 	 	$	114,742,284.49	 	 
	 	RABOBANK

	 	 	$	55,829,234.28	 	 
	 	Scotia Capital

	 	 	$	2,598,000.00	 	 
	 	Suntrust

	 	 	$	79,951,000.00	 	 
	 	Union Bank of California

	 	 	$	45,000,000.00	 	 
	 





     Letters of Credit



     As of December 17, 2004, the Company had the following Letters of Credit on NCB’s
behalf:



	 	 	 	 	 	 	 	 
	 
	 	Bank	 	 	Amount	 
	 	Fleet

	 	 	$	2,102,636.25	 	 
	 	 

SunTrust

	 	 	$	17,446,271.47	 	 
	 





G:Work: Debt: “NCB Indebtedness January 2004”




     RESTRICTIONS ON DEBT (PARAGRAPH 8P)



	 
	The
Fleet Bank, N.A., et al.,
indebtedness and all of the
other indebtedness, referred to in the above table, each
restrict the Company’s right to incur Debt, but none of such
restrictions is violated by the sale of the Notes








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