Exhibit 10.68





EXHIBIT 10.68






National Consumer Cooperative Bank




 






Seventh Amendment and Limited Waiver

Dated as of February 23, 2010




to




NOTE PURCHASE AND UNCOMMITTED MASTER SHELF AGREEMENT

Dated as of December 28, 2001




 







 


 









 





Seventh Amendment and Limited Waiver




This Seventh Amendment and Limited Waiver dated as of February 23, 2010 (this
“Agreement” or this “Seventh 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/ NCB), 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 Seventh Amendment (collectively, the “Noteholders”).



R
e c i t a  l s:




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 by a First Amendment,
dated as of December 9, 2003, a Second Amendment, dated as of December 28, 2004, a Third Amendment,
dated as of December 28, 2006, a Fourth Amendment dated as of December 31, 2007, a Fifth Amendment
dated as of February 25, 2008, and a Sixth Amendment and Limited Waiver dated as of March 31, 2009
(as so amended and as in effect on the date hereof immediately prior to giving effect to this
Agreement, the “Note Agreement”).



B. The Company has heretofore issued (i) $55,000,000 of its 5.62% Senior Notes due December
28, 2009 (as amended and as in effect on the date hereof immediately prior to giving effect to this
Agreement, the “Existing 2009 Notes”), and (ii) $50,000,000 of its 5.60% Senior Notes due December
28, 2010 (as amended and as in effect on the date hereof immediately prior to giving effect to this
Agreement, the “Existing 2010 Notes”; and together with the 2009 Notes, collectively, the “Existing
Notes”).



C. The Company entered into that certain Credit Agreement dated as of May 1, 2006 (as amended
and as in effect on the date hereof, the “Credit Agreement”), by and among the Company, SunTrust
Bank, as administrative agent (“Bank Lender Agent”), and the other lenders party thereto.



D. The Company has informed the Noteholders that certain Defaults and Events of Default exist
and continue, which are the subject of an Amended and Restated Noteholder Forbearance Agreement
dated as of November 16, 2009, as extended pursuant to a First Amendment to Amended and Restated
Noteholder Forbearance Agreement dated as of February 17, 2010 (such agreement herein referred to
as the “Forbearance Agreement” and such Defaults and Events of Default as defined therein, as the
“Specified Defaults”).



E. The Company has requested that the Noteholders waive each of the Specified Defaults and
that the Noteholders amend certain provisions of the Note Agreement and the Existing Notes (defined
below) on the terms and conditions contained herein.



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


 


 









 





G. Capitalized terms used herein shall have the respective meanings ascribed thereto in the
Note Agreement (as amended hereby) unless herein defined or the context shall otherwise require.



H. All requirements of law have been fully complied with and all other acts and things
necessary to make this Agreement 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 Agreement set forth in Section 4 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 to Existing Notes.




Section 1.01. Subject to the satisfaction of the conditions set forth in Section 4 and in
reliance on the representations and warranties set forth in Section 7, each of the Existing Notes
is hereby, without any further action required on the part of any other Person, deemed to be
automatically amended to conform to and have the terms provided in (x) with respect to the Existing
2009 Notes, Exhibit A-1 attached hereto and (y) with respect to the Existing 2010 Notes, Exhibit
A-2 attached hereto (except, in each case, that the principal amount, original issue date,
registration number and the payee of each such Existing Note shall remain unchanged). From and
after the Seventh Amendment Effective Date, each of such Existing Notes as so amended pursuant
hereto shall constitute a “Note” for all purposes. Any Note issued on or after the Seventh
Amendment Effective Date shall be in the applicable form of Exhibit A-1 or Exhibit A-2. For the
avoidance of doubt, as set forth in and pursuant to the Forbearance Agreement, the Yield
Maintenance Amount in respect of each of the Existing Notes was deemed by the Company and the
holders of the Notes to be accrued and capitalized as of August 14, 2009, such that (a) the
aggregate Yield Maintenance Amount of $6,841,615 was apportioned to the Existing Notes, (b) Yield
Maintenance Amount of $1,703,721 was capitalized at such time and added to the principal amount of
the Existing 2009 Notes and (c) Yield Maintenance Amount of $5,137,894 was capitalized at such time
and added to the principal amount of the Existing 2010 Notes. The Company hereby acknowledges,
confirms and agrees that as of February 22, 2010, the aggregate principal balance of the Existing
2009 Notes was $31,521,940.50, and the aggregate principal balance of the Existing 2010 Notes was
$30,651,487.84.



Section 1.02. Within 10 days after the Seventh Amendment Effective Date, the Company will
deliver to Noteholders’ special counsel, Bingham McCutchen LLP, at One State Street, Hartford, CT
06103, one or more Notes in the applicable form, in the denominations and of the series, as may be
requested by any such holder, dated as of the original issue date thereof, and payable to such
holder of Notes or as otherwise requested by such holder, against delivery by such holder of Notes
of the Existing Notes held by it. Bingham McCutchen LLP will forward each of the Notes to the
holders of Notes, and will forward the Existing Notes to the Company for cancellation. All amounts
owing under, and evidenced by, any Existing Note as of the Seventh Amendment Effective Date shall
continue to be outstanding under, and shall after any
exchange referred to above be evidenced by, the Note or Notes issued in exchange therefor, and
shall be repayable in accordance with this Agreement and such Note or Notes.


 


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Section 2. Amendments to Note Agreement.




Section 2.01. Paragraph 4 of the Note Agreement shall be and is hereby amended in its entirety
to read as follows:




“4. PREPAYMENTS.




4A. Required Repayments.




(i)
Required Amortization. Without duplication of any other payment required
under this Agreement, the Company shall repay the Notes and the Bank Obligations, in
each case in accordance with paragraph 4H, to the extent that the aggregate
principal amount of the Notes and the Bank Obligations would otherwise exceed the
amounts set forth in the table below as of the date set forth opposite thereto:



	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Aggregate	 	 	 	 	 	 	 
	 	 	Amount of	 	 	Aggregate	 	 	Total Bank	 
	Date of	 	Bank	 	 	Amount of	 	 	Obligations and	 
	Determination	 	Obligations	 	 	Notes	 	 	Notes	 
	 
	February 28, 2010
	 	$	59,847,956.34	 	 	$	38,152,043.66	 	 	$	98,000,000	 
	 
	April 30, 2010
	 	$	41,527,153.38	 	 	$	26,472,846.62	 	 	$	68,000,000	 
	 
	June 30, 2010
	 	$	36,641,605.92	 	 	$	23,358,394.08	 	 	$	60,000,000	 
	 
	September 30, 2010
	 	$	18,320,802.96	 	 	$	11,679,197.04	 	 	$	30,000,000	 
	 
	December 15, 2010
	 	$	0	 	 	$	0	 	 	$	0	 







Each payment required under this paragraph 4A shall be paid on or before such date
of determination to the Noteholders in respect of the Notes and to the Bank Lender
Agent in respect of the Bank Obligations pursuant to paragraph 4H, and payments with
respect to the Notes shall be made without regard to Series and shall be applied in
the manner set forth in paragraph 4E.




Notwithstanding anything to the contrary in the Notes or herein, upon a failure by
the Company to make any required payment due September 30, 2010, then the Company
shall pay interest in respect of the Notes at the default rate provided for in the
Notes for the period commencing upon such breach and continuing until
such breach has been cured (or all Notes shall have been repaid in full),
notwithstanding that such breach is subject to a 30-day grace period as provided in
paragraph 7A(i).


 


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(ii) Maturity. Subject to earlier prepayment pursuant to this Agreement, the
entire unpaid principal balance of all of the Notes of all Series shall be due and
payable on December 15, 2010.




4B. Optional Prepayment. The Notes shall be subject to prepayment, in whole at any
time or from time to time in part (in amounts of at least $100,000), without regard to
Series, at 100% of the principal amount so prepaid plus interest thereon to the prepayment
date. Any partial prepayment of Notes pursuant to this paragraph 4B shall be made without
regard to Series and shall be applied in the manner set forth in paragraph 4E.




4C.
Notice of Optional Prepayment. The Company shall give the holder of each Note to
be prepaid pursuant to paragraph 4B irrevocable written notice of any optional prepayment
(which, for the avoidance of doubt, shall not include any payment of Excess Cash required to
be made hereunder) not less than 3 Business Days prior to the prepayment date, specifying
such prepayment date, specifying the aggregate principal amount of all Notes to be prepaid
on such date and stating that such prepayment is to be made pursuant to paragraph 4B.
Notice of prepayment having been given as aforesaid, the principal amount of the Notes
specified in such notice, together with interest thereon to the prepayment date, shall
become due and payable on such prepayment date. The Company shall endeavor, on or before
the day on which it gives written notice of any prepayment pursuant to paragraph 4B, give
telephonic notice of the principal amount of the Notes to be prepaid and the prepayment date
to each Significant Holder which shall have designated a recipient for such notices in the
Purchaser Schedule attached hereto or by notice in writing to the Company.




4D. Prepayments in Connection with Specified Event Proceeds. The Company shall, within
five (5) Business Days of the Company’s receipt of any Specified Event Proceeds (and in any
event on the date of the repayment or prepayment of any Debt under and as defined in the
Bank Loan Agreement with any Specified Event Proceeds), prepay the Notes in a principal
amount equal to the Pro Rata Percentage of such Specified Event Proceeds, together with
interest accrued on such principal amount to the date of such prepayment; provided, however,
no such payment shall be required under this Section 4D unless the amount of Specified Event
Proceeds is in excess of $500,000. Any partial prepayment of Notes pursuant to this
paragraph 4D shall be applied without regard to Series and shall be applied in the manner
set forth in paragraph 4E. For the avoidance of doubt, prepayments governed by this
paragraph 4D shall be paid by the Company to the Noteholders in respect of the Notes and to
the Bank Lender Agent in respect of the Bank Obligations.


 


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4E. Application of Prepayments. In the case of each prepayment of less than the entire
unpaid principal amount of all outstanding Notes pursuant to this Agreement, the amount to
be prepaid shall be applied pro rata to all outstanding Notes irrespective of and without
regard to Series according to the respective unpaid principal amounts thereof.




4F. Retirement of Notes. The Company shall not, and shall not permit any of its
Subsidiaries or Affiliates to, prepay or otherwise retire in whole or in part prior to their
stated final maturity (other than by prepayment pursuant to paragraph 4A, 4B, 4D or 4G or
upon acceleration of such final maturity pursuant to paragraph 7A), or purchase or otherwise
acquire, directly or indirectly, Notes held by any holder unless the Company or such
Subsidiary or Affiliate shall have offered to prepay or otherwise retire or purchase or
otherwise acquire, as the case may be, the same proportion of the aggregate principal amount
of Notes held by each other holder of Notes at the time outstanding upon the same terms and
conditions. Any Notes so prepaid or otherwise retired or purchased or otherwise acquired by
the Company or any of its Subsidiaries or Affiliates shall not be deemed to be outstanding
for any purpose under this Agreement, except as expressly provided in this paragraph 4.




4G. Excess Cash Prepayments. Without duplication of any other mandatory payment
required under this Agreement, on each Excess Cash Payment Date listed in the table below,
the Company shall pay one hundred percent (100%) of its Excess Cash measured as of the
Excess Cash Determination Date listed opposite thereto (which shall be based on the balances
of cash and Cash Equivalents as of the close of business on the Friday immediately preceding
such Excess Cash Determination Date) to the Noteholders in respect of the Notes and to the
Bank Lender Agent in respect of the Bank Obligations pursuant to paragraph 4H. Such
payments received with respect to the Notes shall be applied in the manner set forth in
paragraph 4E.



	 	 	 
	Excess Cash Determination Date	 	Excess Cash Payment Date
	 
	 	 
	February 24, 2010
	 	March 3, 2010
	March 31, 2010
	 	April 7, 2010
	April 28, 2010
	 	May 5, 2010
	May 26, 2010
	 	June 2, 2010
	June 30, 2010
	 	July 7, 2010
	July 28, 2010
	 	August 4, 2010
	August 25, 2010
	 	September 1, 2010
	September 29, 2010
	 	October 6, 2010
	October 27, 2010
	 	November 3, 2010
	November 24, 2010
	 	December 1, 2010





 


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4H. Sharing Provisions under the Intercreditor and Collateral Agency Agreement. As of
the Seventh Amendment Effective Date, a Trigger Event (as defined in the Intercreditor and
Collateral Agency Agreement) has occurred and notice has been provided under Section 3(b) of
the Intercreditor and Collateral Agency Agreement to implement the sharing provisions
contained in Section 3 of the Intercreditor and Collateral Agency Agreement.
Notwithstanding anything to the contrary contained in the Intercreditor and Collateral
Agency Agreement or this Agreement, the holders of all of the Notes hereby agree that (a)
except for the principal payment on the Notes in the amount of $3,552,767.33 paid on or
about the Seventh Amendment Effective Date, all principal payments (whether voluntary or
mandatory) made with respect to the Secured Obligations (as defined in the Intercreditor
Agreement) shall be allocated to the Notes and the Bank Obligations in accordance with
Section 3(b) and 7(a) of the Intercreditor and Collateral Agency Agreement until the Secured
Obligations have been paid in full, notwithstanding that the events giving rise to the
Trigger Event may have been cured, waived or no longer exist, (b) “Shared Payments” (as
defined in the Intercreditor and Collateral Agency Agreement) shall not include (i) any
payments of interest in respect of the Secured Obligations (as defined in the Intercreditor
and Collateral Agency Agreement) or (ii) any fees in respect of the Financing Agreements (as
defined in the Intercreditor and Collateral Agency Agreement), which may be paid directly in
accordance with the respective Financing Agreements (as defined in the Intercreditor and
Collateral Agency Agreement) and (c) with the agreement of the Bank Lender Agent, as
evidenced by execution of a payment letter in the form of Exhibit B to this Agreement, the
Company may make such payments as set forth in such payment letter to the extent that such
payment is made in accordance with Sections 3(b) and 7(a) of the Intercreditor and
Collateral Agency Agreement; provided that such agreement is expressly conditioned upon the
continued agreement of such arrangement by the requisite holders of the Bank Obligations.”



Section 2.02. Paragraph 5H of the Note Agreement shall be and is hereby further amended by (i)
deleting the “and” at the end of clause (xi) thereof and (ii) renumbering clause (xii) as clause
“(xiv)” and by adding the following new clauses “(xii)” and “(xiii)” in their appropriate numerical
order:




“(xii) Repayment Plan —




(a) On or before April 15, 2010, written information, in form and substance
satisfactory to the Required Holders, describing (i) assets anticipated to be sold
and other sources of cash to repay the Notes and the Bank Obligations, (ii) the
anticipated timeline for the sale of such assets or receipt of such sources of cash,
(iii) the anticipated proceeds from such asset sales and cash sources, and (iv)
projected reductions in the principal amount of the Notes and the Bank Obligations
resulting from the expected application of such anticipated proceeds
from such asset sales and cash sources, together with any other information the
Required Holders shall reasonably request in connection therewith, in each case
demonstrating the Company’s ability to repay the Notes and the Banks Obligations as
required pursuant to paragraph 4A (collectively, the “Repayment Plan”).


 


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(b) On the first Business Day of each calendar month after the delivery of the
Repayment Plan, a written update to any information contained in the Repayment Plan
which shall have changed since the date of delivery of the Repayment Plan or an
update thereto, including information regarding anticipated asset sale dates, sale
terms, the progress of each asset sale, additional assets to be sold and additional
actions to be taken to permanently repay the Notes and the Bank Obligations as
required pursuant to paragraph 4A.




(c) The Company’s covenants and obligations under subsection (a) and (b) of
this paragraph 5H(xii) shall cease and be deemed satisfied upon the delivery to the
Required Holders of a duly executed commitment letter for a refinancing transaction
to permanently repay all Notes and all Bank Obligations in full, and receipt of
informal indications of any rating required with respect to such refinancing (which
may be verbal); provided that the Company’s covenants and obligations under
subsection (a) and (b) of this paragraph 5H(xii) shall be fully reinstated and
binding if such commitment letter is subsequently terminated or the refinancing
transaction contemplated thereby does not permanently repay all Notes and all Bank
Obligations in full by June 30, 2010;




(xiii) Additional Reporting Covenants —




(a) By 4:00 p.m. (Eastern time) each Wednesday, a report of cash and Cash
Equivalent balances as of close of business (Eastern time) on Friday of the previous
week.




(b) By 4:00 p.m. (Eastern time) each Friday, a 13-week rolling cash flow
forecast together with a detailed variance report with respect to the previous
13-week rolling cash flow forecast delivered, which shall be in the form previously
agreed to by the Required Holders and the Company.




(c) On the day that is 30 days following the end of each calendar month, draft
monthly financial statements including balance sheets, statements of income and
statements of shareholders equity, and on the date that is 45 days following the end
of each calendar month, final copies of such monthly financial statements;




(d) A calculation of the Company’s Loan to Value Ratio as of February 28, 2010,
April 30, 2010, June 30, 2010 and September 30, 2010, in each case within 10
Business Days following such date; and”


 


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Section 2.03. Paragraph 5 of the of the Note Agreement shall be and is hereby further amended
by deleting existing paragraphs 5Q and 5R and adding new paragraphs 5Q, 5R, 5S and 5T in their
appropriate alphabetical order to read as follows:




“5Q. Minimum Cash. The Company will maintain, at all times during the periods set
forth below, cash and Cash Equivalents (exclusive of amounts included therein with respect
to deposits in the Company’s clearing account and other accounts where the Company is acting
as the custodian or in a fiduciary capacity for the cash and Cash Equivalents maintained in
such accounts) at the Company equal to or greater than the amount set forth opposite
thereto:



	 	 	 	 	 
	 	 	Minimum Cash and Cash	 
	Period	 	Equivalents	 
	 
	 	 	 	 
	Seventh Amendment Effective Date through and
including June 30, 2010
	 	$	25,000,000	 
	 
	 	 	 	 
	July 1, 2010 and all times thereafter
	 	$	20,000,000	 







5R. Minimum Loan to Value Ratio. For each of the following dates on which the Loan to
Value Ratio is greater than the ratio set forth opposite such date, the Company shall pay a
fee to each holder of Notes equal to 0.20% of the aggregate principal amount of the
outstanding Notes held by each such holder, which fee shall be paid no later than 10
Business Days following such date of determination:



	 	 	 	 	 
	Applicable Date	 	Loan to Value Ratio	 
	 
	 	 	 	 
	February 28, 2010
	 	 	37	%
	 
	 	 	 	 
	April 30, 2010
	 	 	30	%
	 
	 	 	 	 
	June 30, 2010
	 	 	28	%
	 
	 	 	 	 
	September 30, 2010
	 	 	28	%







5S. Refinancing Transaction. The Company shall use commercially-reasonable efforts to
pursue, negotiate and close on or before June 30, 2010 a refinancing transaction that will
repay in full all outstanding Notes and Bank Obligations.


 


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5T. Refinancing Hurdle Fee. If the Company shall not have repaid in full in cash all
outstanding amounts in respect of all Notes pursuant to paragraph 4 hereof (including all
principal amounts and all accrued interest) on or before June 30, 2010, then
on June 30, 2010 the Company shall pay a fee to each holder of Notes equal to two
percent (2.00%) of the aggregate principal amount of the then-outstanding Notes held by each
such holder.”



Section 2.04. Paragraph 6 of the Note Agreement shall be and is hereby amended by adding new
paragraphs 6W, 6X, 6Y, 6Z, 6AA, 6AB and 6AC in their appropriate alphabetical order to read as
follows:




“6W. New Depository Accounts. The Company shall not open any new depository account,
securities account or investment account unless such account shall be maintained at a bank
holding Bank Obligations.




6X.
Payment of Other Debt.




(a) Notwithstanding anything to the contrary contained in this Agreement, the
Company shall not make any principal payment to the holders of the Class A Notes
until the Notes and the Bank Obligations have been repaid in full.




(b) The Company shall make no principal payments in respect of the Bank
Obligations unless the Company concurrently makes a ratable payment with respect to
the Notes in accordance with the terms of Sections 3(b) and 7(a) of the
Intercreditor and Collateral Agency Agreement.




(c) The Company shall not, directly or indirectly, (i) make any payments to any
Person not required by a valid and enforceable contract as in effect on the Seventh
Amendment Effective Date or as permitted under the following clause (ii), nor (ii)
enter into any contract requiring payments to be made by the Company except in the
ordinary course of business or as part of the transactions contemplated by this
Agreement, including, without limitation, in furtherance of a refinancing
transaction contemplated hereunder or any transaction contemplated under the
Repayment Plan.




6Y. Amendments to Bank Loan Agreement, etc. After the Seventh Amendment Effective
Date, the Company shall not, without the written consent of the Required Holders, enter into
any amendment of, or modification or supplement to, the Bank Loan Agreement, or any related
agreements, or enter into any other agreements with the Bank Lenders with respect to the
Bank Loan Agreement or any related agreements, that would have the direct or indirect effect
of any of the following: shortening the date of maturity of any loan or note, increasing the
stated principal amount of any loan or note or adding to such amounts, adding to or making
more onerous the conditions for issuing letters of credit, accelerating the time or
increasing the amount of payment of principal, interest or other amounts (other than as
required herein), increasing the interest rate or effective interest rate on any Debt
(whether by changing a contractual or default rate, changing a reference or base rate or by changing an interest rate
spread above a reference rate), increasing the amount of or imposing additional fees or
costs, or adding covenants or other restrictions or making more onerous existing covenants.


 


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6Z. Meetings with Holders of Notes. The Company, NCBFC and their respective senior
management and advisors shall make themselves available for such periodic meetings as the
Required Holders may reasonably request, to take place at mutually convenient times, in
person or by telephone with representatives of the Required Holders and their attorneys and
advisors and any financial or other advisor or consultant to the Company and NCBFC, to
discuss the Company’s and NCBFC’s business operations and such other matters as such
representatives may reasonably request.




6AA. Contributions to the Thrift. The Company (i) shall not make any voluntary capital
contribution to the Thrift (whether directly or through NCBFC) without the prior written
consent of the Required Holders and (ii) shall, notwithstanding the limitation in paragraph
5M, be permitted to make a capital contribution expressly requested in writing by the Office
of Thrift Supervision or other Governmental Authority to the Thrift (whether directly or
through NCBFC) in an aggregate amount up to $10,000,000 without the prior written consent of
the Required Holders so long as, before and after giving effect to such contribution, no
Default or Event of Default shall have occurred or be continuing.




6AB. No Fees, etc. None of the Company, its Subsidiaries, NCBFC or their respective
Subsidiaries or Affiliates has paid or will pay, directly or indirectly, any work fee,
administrative agent’s fee or any other fee, charge, increased interest, premium or other
consideration to, or has given or will give any additional security or collateral to, or has
shortened or will shorten the maturity or average life of any Debt or permanently reduced
any borrowing capacity in favor of or for the benefit of, any creditor of the Company, any
creditor of any Affiliate or any agent acting for or on behalf of any such creditors with
respect to the Bank Loan Agreement in connection with or as an inducement to enter into the
Bank Loan Agreement or any amendment of or forbearance or waiver with respect thereto or
similar agreement, other than (a) the fees and payments described in the amendment to the
Bank Loan Agreement dated as of the Seventh Amendment Effective Date and (b) as permitted by
the Seventh Amendment, in each case payable under the terms of, and as disclosed in, such
amendment to the Bank Loan Agreement, a copy of which shall have been previously delivered
to the holders of the Notes or their counsel.


 


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6AC. Most Favored Lender. On the Seventh Amendment Effective Date, each negative and
affirmative covenant (together with any defined terms and schedules related thereto) imposed
under, or in connection with, the Bank Loan Agreement is hereby incorporated into this
Agreement and shall apply as if fully set forth herein. If, after the Seventh Amendment
Effective Date, any holder of Bank Obligations or other holder of Debt of the Company or any
Subsidiary (a) imposes any additional negative or affirmative covenant or event of default
(including by amendment of an existing negative or affirmative covenant or event of default, by waiver or consent or otherwise) that is more
restrictive on the Company or any Subsidiary (or more favorable to such holder of Bank
Obligations or other holder of Debt) than the covenants or events of default contained in
this Agreement, (b) increases the amount of any fees, interest and/or other economic
consideration to any holder of Bank Obligations or other holder of Debt, or (c) adds
additional fees, interest and/or other economic consideration to any holder of Bank
Obligations or other holder of Debt, then the Company shall promptly notify holders of the
Notes and (irrespective of such notification) this Agreement shall be deemed to be amended
automatically to incorporate such additional, more restrictive or more favorable covenant,
event of default or other provision (together with any defined terms and schedules related
thereto) as of such date. Notwithstanding the foregoing, (y) the subsequent amendment,
modification, release or termination of any such covenant, event of default or other
provision in such other document or agreement shall not operate to amend, modify, release or
terminate such covenant, event of default, additional fees, interest or other economic
consideration or other provision as incorporated into this Agreement pursuant hereto without
the consent of the Required Holders and (z) no provision shall be incorporated by reference
herein to the extent that it would be more favorable to the Company, or less favorable to
the holders of the Notes, than any provision of this Agreement that would be operative
absent such incorporation.”



Section 2.05. Paragraph 6 of the Note Agreement shall be and is hereby amended by deleting
paragraphs 5D (Maintenance of Consolidated Adjusted Net Worth and Consolidated Effective Net
Worth), 5L (Required Investments), 6E (Limitations on Debt), 6H (Consolidated Earnings Available
for Fixed Charges), 6Q (Asset Quality), 6R (Return on Average Assets), and 6V (Cash and Cash
Equivalent Requirement) in their entirety and inserting the phrase “[intentionally omitted]” in
lieu thereof.



Section 2.06. Paragraph 6 of the Note Agreement shall be and is hereby amended by adding the
following as new paragraphs 6AD and 6AE in their appropriate alphabetical order to read as follows:




“6AD. Restricted Payments. The Company shall not, directly or indirectly, declare,
order, make or set apart any sum for or pay any Restricted Payment except for Patronage
Dividends and other dividends, in each case payable by the Company solely in common stock of
the Company.




6AE. Investments. The Company and the Guarantor shall not make any of the Restricted
Investments permitted to be made pursuant to clauses (p) and (q) of the definition of
Restricted Investments.


 


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Section 2.07. Paragraph 7A(i) of the Note Agreement shall be and is hereby amended in its
entirety to read as follows:




“(i) Principal or Yield-Maintenance Amount Payments - the Company fails to make any
payment of principal or Yield-Maintenance Amount on any Note on or
before the date such payment is due, and, solely with respect to any mandatory prepayment of
principal that may be due on September 30, 2010 pursuant to paragraph 4A, such failure shall
continue for a period of 30 days following the due date thereof;”



Section 2.08. Paragraph 10B of the Note Agreement shall be and is hereby amended by inserting
the following new defined terms in proper alphabetical order:




““Bank Obligations” shall mean the obligations in favor of the Bank Lenders pursuant to
the Bank Loan Agreement.”




““Excess Cash” shall mean, at any time of determination, cash and Cash Equivalents of
the Company as of such date of determination as reflected in the Company’s financial records
(exclusive of amounts included therein with respect to deposits in the Company’s clearing
account and other accounts where the Company is acting as the custodian or in a fiduciary
capacity for the cash and Cash Equivalents maintained in such accounts) in excess of (i)
$50,000,000 at any time on or before June 30, 2010 or (ii) $45,000,000 at any time on or
after July 1, 2010.”




““Excess Cash Payment Date” shall have the meaning provided in paragraph 4G.”




““Excess Cash Determination Date” shall have the meaning provided in paragraph 4G.”




““Loan to Value Ratio” shall mean, as of any date of determination, the ratio of (i)
the sum of, measured as of such date of determination, (a) the aggregate amount of
Obligations plus (b) the aggregate amount of Revolving Credit Exposure (as defined
in and with respect to the Bank Loan Agreement) to (ii) the sum of, measured as of such date
of determination, (a) the aggregate unpaid principal amount of all Performing Loans
plus (b) the Company’s unrestricted cash and Cash Equivalents (exclusive of amounts
included therein with respect to deposits in the Company’s clearing account and other
accounts where the Company is acting as the custodian or in a fiduciary capacity for the
cash and Cash Equivalents maintained in such accounts).”




““Performing Loans” shall mean each outstanding loan, lease financing receivable and
letters of credit (including participations in loans, lease financing receivables and
letters of credit) held, or issued with respect to letters of credit, by the Company which
is not a Nonperforming Loan and is not “risk rated” worse than 6 in accordance with the
Company’s internal policies and procedures in existence on the Seventh Amendment Effective
Date, consistently applied.”




““Seventh Amendment” shall mean that certain Seventh Amendment and Limited Waiver to
the Note Purchase and Uncommitted Master Shelf Agreement and Amendment to Notes, dated as of
February 23, 2010, by and among the Company and the Noteholders party thereto.”


 


13









 






““Seventh Amendment Effective Date” shall mean the date that the Seventh Amendment
becomes effective in accordance with the terms thereof.”



Section 2.09. Paragraph 10B of the Note Agreement shall be and is hereby amended by deleting
each of the following existing defined terms and, in each case, inserting the following replacement
defined terms in their respective places:




““Pro Rata Percentage” means, in respect of any Specified Event Proceeds, the amount
expressed as a percentage equal to (a) the aggregate principal amount of Notes outstanding
(other than any Notes held by the Company or any Affiliate of the Company) divided by (b)
the sum of (i) such principal amount of Notes then outstanding plus (ii) the sum of (A) the
aggregate outstanding principal amount of all Bank Lenders’ Revolving Loans and (B) the
aggregate amount of L/C Exposures, in each case, as of the date such Specified Event
Proceeds are received by the Company. Any amount allocated to the L/C Exposure shall be held
by the Collateral Agent (or the Bank Lender Agent if the Collateral Agent is not then in
place) in a cash collateral account for the benefit of the Bank Lenders and the holders of
the Notes. Amounts held in the cash collateral account may be used to pay any L/C
Disbursement but solely to the amount which would have been paid if the amount of such L/C
Disbursement was outstanding on the date the applicable Specified Event Proceeds was
received by the Company. In the event that any amount of L/C Exposure is terminated or
cancelled an amount held in the cash collateral account shall be paid to the holders of the
Notes and the Bank Lenders assuming that such amount of L/C Exposure cancelled or terminated
was not included in the calculation of Pro Rata Percentage on the such Specified Event
Proceeds were received by the Company. For purposes of this definition, capitalized terms
not otherwise defined herein shall have the meanings ascribed to them as set forth in the
Bank Loan Agreement as in effect as of the Seventh Amendment Effective Date.”




““Repayment Plan” shall have the meaning set forth in clause (xii) of paragraph 5H.”




““Specified Event Proceeds” means, (a) Net Cash Sale Proceeds from Asset Sales (other
than sales or other disposition for fair market value of obsolete or worn out equipment or
other assets not necessary for operations disposed of in the ordinary course of business in
an aggregate amount not to exceed $50,000 after the Seventh Amendment Effective Date) to the
extent that the Company has Excess Cash (for purposes of determining the amount of Excess
Cash for purposes of this clause (a), Excess Cash shall be determined as of the close of
business on the Friday immediately prior to receipt of such Net Cash Sale Proceeds, and
adjusted (x) to give pro forma effect to the receipt of such Net Cash Sale Proceeds and (y)
to give effect to the payment of Excess Cash included in such measurement and paid prior to
the date of receipt of such Net Cash Sale Proceeds); (b) the Net Cash Equity Issuance
Proceeds of the Company or any Subsidiary (other than Net



 


14









 






Cash Equity Issuance Proceeds (i)
that are subject to mandatory repayment pursuant to any requirements governing the Class A
Notes or (ii) that NCBFC or the Thrift, as applicable, receives pursuant to its
participation in the Capital Purchase Program); (c) the Net Cash Debt Issuance Proceeds of
the Company or any Subsidiary (other than Net Cash Debt Issuance Proceeds that are subject to mandatory
repayment pursuant to any requirements governing the Class A Notes); or (d) the cash
proceeds in excess of $10,000,000 in the aggregate in any fiscal year received from Casualty
Events by the Company or any of its Subsidiaries which have not been reinvested by the
Company or such Subsidiary, as applicable, within 365 days of receipt of such proceeds in
the repair or replacement of the property so damaged, destroyed or taken (unless an Event of
Default has occurred and is continuing, all such proceeds shall, unless the Required Holders
consent otherwise, be Specified Event Proceeds). For purposes of this definition,
capitalized terms not otherwise defined herein shall have the meanings ascribed to them as
set forth in the Bank Loan Agreement as in effect as of the Seventh Amendment Effective
Date.”



Section 2.10. Paragraph 10B of the Note Agreement shall be and is hereby further amended by
deleting clause (d) of the defined term “Permitted Proceeds Application” and inserting the
following replacement clause (d) in its place:




“(d) the repayment of Debt in accordance with the terms hereof.”



Section 2.11. Paragraph 10B of the Note Agreement shall be and is hereby further amended by
deleting the defined term “Liquidity Amount”.



Section 3. Limited Waiver. 




At the request of the Company, but subject to the satisfaction of the conditions precedent set
forth in Section 4 below, the Noteholders hereby waive any Events of Default arising or existing
solely as the result of the Specified Defaults. The Company acknowledges and agrees that the
limited waiver contained in the foregoing sentence shall not be deemed to be or constitute a
consent to any future action or inaction on the part of the Company, shall not waive or amend (or
be deemed to be or constitute a waiver of or amendment to) any other covenant, term or provision in
the Note Agreement or any of the other Transaction Documents, and shall not hinder, restrict or
otherwise modify the rights and remedies of the Noteholders following the occurrence of any other
Default or Event of Default under the Note Agreement or any other Transaction Document.



Section 4. Conditions to Effectiveness of This Seventh Amendment.




This Seventh Amendment (and the amendments and limited waiver contained herein) shall become
effective as of the date (the “Seventh Amendment Effective Date”) when each and every one of the
following conditions shall have been satisfied:




(a) executed counterparts of this Seventh Amendment, duly executed by the Company and
all holders of the Notes, shall have been delivered to the Noteholders;


 


15









 






(b) the representations and warranties of the Company set forth in Section 7 hereof are
true and correct on and with respect to the date hereof;




(c) the Noteholders shall have received evidence of the effectiveness (including fully
executed copies) of an amendment and waiver duly executed by the Majority Banks (as defined
in the Credit Agreement as in effect on the Seventh Amendment Effective Date) pursuant to
which the parties thereto amend the applicable terms and provisions of the Credit Agreement
consistent with the amendments herein to the extent applicable to the Credit Agreement and
waive any default and/or event of default arising under the Credit Agreement;




(d) the Noteholders shall have received evidence, in form and substance satisfactory to
them, that as of the date hereof, the aggregate principal amount of the Notes and the
obligations of the Company in respect of the Credit Agreement are equal to $98,000,000;




(e) the Noteholders shall have received a principal payment of $3,552,767.33 plus
interest accrued on such principal amount, on the Seventh Amendment Effective Date, such
payment not subject to the sharing provisions of the Intercreditor and Collateral Agency
Agreement as agreed by the Banks, the Company and the holders of the Notes;




(f) the Company shall have paid all reasonable and documented fees, costs and expenses
incurred in connection with this Agreement and any other Transaction Documents that have
been invoiced and are required to be paid hereunder or under the Note Agreement (including,
without limitation, legal fees and expenses) or an engagement letter and that have been
presented to the Company prior to the Effective Date; and




(g) the Noteholders shall have received 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.



Section 5. Reserved.




Section 6. Release by the Company and NCBFC.




Effective on the Seventh Amendment Effective Date, each of the Company and NCBFC hereby
waives, releases, remises and forever discharges each holder of Notes and each of their respective
Affiliates, and each of the officers, directors, employees, and professionals of each such Person
and their respective Affiliates (collectively, the “Releasees”), from any and all claims,
demands, obligations, liabilities, causes of action, damages, losses, costs and expenses of any
kind or character, known or unknown, past or present, liquidated or unliquidated, suspected or
unsuspected, which the Company or NCBFC ever had from the beginning of the world, now has or might
hereafter have against any such Releasee which relates, directly or indirectly to the
Note Agreement, any other Transaction Document, or to any acts or omissions of any such Releasee
relating to the Note Agreement or any other Transaction Document, except for the duties and
obligations expressly set forth in this Agreement or with respect to any act or omission that is
taken or occurs after the Seventh Amendment Effective Date.


 


16









 





Section 7. Representations and Warranties of the Company.




Section 7.01. To induce the Noteholders to execute and deliver this Seventh Amendment (which
representations shall survive the execution and delivery of this Seventh 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 Seventh Amendment and to perform the provisions
hereof and the provisions of the Note Agreement, as amended by this Seventh Amendment;




(b) this Seventh 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 Seventh 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 Seventh Amendment,
and compliance by the Company with the terms and provisions of the Note Agreement, as
amended by this Seventh Amendment: (i) will not contravene any provision of any law,
statute, rule or regulation or any order, writ, injunction or decree of any court or
Governmental Authority, (ii) will not conflict with or result in any breach of any of the
terms, covenants, conditions or provisions of, or constitute a default under, or result in
the creation or imposition of (or the obligation to create or impose) any Lien upon any of
the property or assets of the Company or any of its Subsidiaries pursuant to the terms of
any indenture, mortgage, deed of trust, credit agreement or loan agreement, or any other
agreement, contract or instrument, to which the Company or any of its Subsidiaries is a
party or by which it or any of its property or assets is bound or to which it may be subject
or (iii) will not violate any provision of the charter documents of the Company;


 


17









 






(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 Seventh Amendment or performance by the Company of the Note Agreement,
as amended by this Seventh Amendment;




(f) no Default or Event of Default shall exist immediately after giving effect to this
Seventh Amendment;




(g) all the representations and warranties contained in Paragraph 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 (except to the extent that such
representations and warranties relate expressly to an earlier date, in which case such
representations and warranties were true and correct as of such earlier date); and




(h) no Financial Institution Subsidiary has violated any applicable regulatory
restrictions on dividends, it being acknowledged by the parties that restrictions on the
payment of dividends imposed solely pursuant to the Capital Purchase Program shall not be
deemed to be a violation of this representation.



Section 8 Miscellaneous.




Section 8.01. No Further Amendments; Ratification of Liability. Except as expressly
amended hereby, the Note Agreement and each of the other Transaction Documents shall remain in full
force and effect in accordance with their respective terms. The Company hereby ratifies, confirms
and reaffirms its liabilities, its payment and performance obligations (contingent or otherwise)
and its agreements under the Note Agreement and the other Transaction Documents, all as amended by
this Seventh Amendment. The Banks’ agreement to the terms of this Seventh Amendment or any other
amendment of the Note Agreement or any other Transaction Document shall not be deemed to establish
or create a custom or course of dealing among the Company or the Banks, or any of them. This
Seventh Amendment shall be deemed to be a “Transaction Document” for all purposes under the Note
Agreement.



Section 8.02. No Waiver; References to the Note Agreement. Except as expressly
provided herein, nothing contained herein shall be deemed to constitute a waiver of compliance with
any term or condition contained in the Note Agreement or any of the other Transaction Documents.
The Noteholders expressly reserve all rights, privileges and remedies under the Transaction
Documents. The rights, remedies, powers and privileges herein provided are cumulative and not
exclusive of any rights, remedies, powers and privileges provided by law. Each reference to the
Note Agreement in any of the Transaction Documents (including the Note Agreement) shall be deemed
to be a reference to the Note Agreement, as amended by this Seventh Amendment.



Section 8.03. Benefits. This Seventh Amendment shall be binding upon and shall inure
to the benefit of the parties hereto and their respective permitted successors and assigns. This
Seventh Amendment is solely for the benefit of the Company and the holders of the Notes and no term
or provision hereof shall be deemed to confer any benefit or rights on any other Person.


 


18









 





Section 8.04. Expenses. The Company agrees to reimburse the holders of the Notes on
demand for all reasonable costs and expenses (including, without limitation, attorneys’ fees)
incurred by such parties in negotiating, documenting and consummating this Seventh Amendment, the
Security Documents, the other documents referred to herein, and the transactions contemplated
hereby and thereby.



Section 8.05. Severability. In case any provision of or obligation under this Seventh
Amendment shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality
and enforceability of the remaining provisions or obligations, or of such provision or obligation
in any other jurisdiction, shall not in any way be affected or impaired thereby.



Section 8.06. Headings. Headings and captions used in this Seventh Amendment are
included for convenience of reference only and shall not be given any substantive effect.



Section 8.07. GOVERNING LAW. THIS SEVENTH AMENDMENT SHALL, PURSUANT TO NEW YORK
GENERAL OBLIGATIONS LAW SECTION 5-1401, BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS
PRINCIPLES.



Section 8.08. WAIVER OF JURY TRIAL. THE COMPANY AND THE NOTEHOLDERS HEREBY
IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING ARISING OUT
OF OR RELATING TO THIS SEVENTH AMENDMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY AND AGREE THAT ANY
SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.



Section 8.09. Further Assurances. The Company and NCBFC will cooperate with the
holders of the Notes and execute such further instruments and documents as the holders of the Notes
shall reasonably request to carry out to their satisfaction the transactions contemplated by this
Agreement.



Section 8.10. Counterparts; Integration. This Seventh Amendment may be executed and
delivered via electronic transmission (facsimile, e-mail, etc.) with the same force and effect as
if an original were executed and may be signed in any number of counterparts, each of which shall
be an original, with the same effect as if the signatures hereto were upon the same instrument.
This Seventh Amendment constitutes the entire agreement and understanding among the parties hereto
with respect to the subject matter hereof and supersede any and all prior agreements and
understandings, oral or written, relating to the subject matter hereof.


 


19









 





	 	 	 	 	 
	 	NATIONAL CONSUMER COOPERATIVE BANK

 	 
	 	By:  	 	 
	 	 	Name:  	 
	 	 	Title:  	 
	 
	 	NCB FINANCIAL CORPORATION

 	 
	 	By:  	 	 
	 	 	Name:  	 
	 	 	Title:  	 
	 



 


 









 





Accepted and Agreed to:



	 	 	 	 	 	 	 	 	 	 	 
	 	 	2009 NOTEHOLDERS:	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	THE PRUDENTIAL INSURANCE COMPANY OF AMERICA	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	Name:	 	 
	 	 	 	 	Title: Vice President	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	PRUDENTIAL RETIREMENT INSURANCE AND ANNUITY COMPANY	 	 
	 	 	By:	 	Prudential Investment Management, Inc.,	 	 
	 	 	 	 	as investment manager	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Name:	 	 
	 	 	 	 	 	 	Title: Vice President
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	FARMERS NEW WORLD LIFE INSURANCE COMPANY	 	 
	 	 	By:	 	Prudential Private Placement Investors,	 	 
	 	 	 	 	L.P. (as Investment Advisor)	 	 
	 	 	 	 	By:	 	Prudential Private Placement Investors,	 	 
	 	 	 	 	 	 	Inc. (as its General Partner)	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	By:	 	 	 	 
	 

	 	 	 	 	 	 	 	 

	 	 
	 

	 	 	 	 	 	 	 	Name:	 	 
	 	 	 	 	 	 	 	 	Title: Vice President
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	GIBRALTAR LIFE INSURANCE CO., LTD.	 	 
	 	 	By:	 	Prudential Private Placement Investors,	 	 
	 	 	 	 	L.P.   (as Investment Advisor)	 	 
	 	 	 	 	By:	 	Prudential Private Placement Investors,	 	 
	 	 	 	 	 	 	Inc. (as its General Partner)	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	By:	 	 	 	 
	 

	 	 	 	 	 	 	 	 

	 	 
	 

	 	 	 	 	 	 	 	Name:	 	 
	 	 	 	 	 	 	 	 	Title: Vice President





 


 









 





	 	 	 	 	 	 	 	 	 
	 	 	2010 NOTEHOLDERS:	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	THE PRUDENTIAL INSURANCE COMPANY OF AMERICA	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 	 	 	 	Title: Vice President
	 
	 	 	 	 	 	 	 	 
	 	 	PRUDENTIAL RETIREMENT INSURANCE AND ANNUITY COMPANY	 	 
	 	 	By:	 	Prudential Investment Management, Inc.,	 	 
	 	 	 	 	as investment manager	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	 	 	 
	 	 	 	 	 	 	   
	 

	 	 	 	 	 	Name:	 	 
	 	 	 	 	 	 	Title: Vice President





 


 









 





	 	 	 	 	 	 	 	 	 	 	 
	 	 	PHYSICIANS MUTUAL INSURANCE COMPANY	 	 
	 	 	By:	 	Prudential Private Placement Investors,	 	 
	 	 	 	 	L.P. (as Investment Advisor)	 	 
	 	 	 	 	By:	 	Prudential Private Placement Investors,	 	 
	 	 	 	 	 	 	Inc. (as its General Partner)	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	By:	 	 	 	 
	 

	 	 	 	 	 	 	 	 

	 	 
	 

	 	 	 	 	 	 	 	Name:
	 	 	 	 	 	 	 	 	Title: Vice President
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	MTL INSURANCE COMPANY	 	 
	 	 	By:	 	Prudential Private Placement Investors,	 	 
	 	 	 	 	L.P. (as Investment Advisor)	 	 
	 	 	 	 	By:	 	Prudential Private Placement Investors,	 	 
	 	 	 	 	 	 	Inc. (as its General Partner)	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	By:	 	 	 	 
	 

	 	 	 	 	 	 	 	 

	 	 
	 

	 	 	 	 	 	 	 	Name:
	 	 	 	 	 	 	 	 	Title: Vice President
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	TIME INSURANCE COMPANY	 	 
	 	 	By:	 	Prudential Private Placement Investors,	 	 
	 	 	 	 	L.P. (as Investment Advisor)	 	 
	 	 	 	 	By:	 	Prudential Private Placement Investors,	 	 
	 	 	 	 	 	 	Inc. (as its General Partner)	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	By:	 	 	 	 
	 

	 	 	 	 	 	 	 	 

	 	 
	 

	 	 	 	 	 	 	 	Name:
	 	 	 	 	 	 	 	 	Title: Vice President
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	AMERICAN BANKERS INSURANCE COMPANY OF FLORIDA, INC.	 	 
	 	 	By:	 	Prudential Private Placement Investors,	 	 
	 	 	 	 	L.P. (as Investment Advisor)	 	 
	 	 	 	 	By:	 	Prudential Private Placement Investors,	 	 
	 	 	 	 	 	 	Inc. (as its General Partner)	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	By:	 	 	 	 
	 

	 	 	 	 	 	 	 	 

	 	 
	 

	 	 	 	 	 	 	 	Name:
	 	 	 	 	 	 	 	 	Title: Vice President







 


 









 







Exhibit A-1




NATIONAL CONSUMER COOPERATIVE BANK




SHELF NOTE




	 	 	 
	No. R-[_____]
	 	 
	ORIGINAL PRINCIPAL AMOUNT:

	 	$[                    ]
	ORIGINAL ISSUE DATE:

	 	December 28, 2006
	INTEREST RATE:

	 	Applicable Rate (as defined herein below)
	INTEREST PAYMENT DATES:

	 	Monthly on the first Business Day of each month
	FINAL MATURITY DATE:

	 	December 15, 2010
	PRINCIPAL INSTALLMENT
DATES AND AMOUNTS:

	 	Payable in full on scheduled Final Maturity
Date and as otherwise set forth in the Note Agreement.
	SECURITY NUMBER:

	 	63556*BV7






FOR VALUE RECEIVED, NATIONAL CONSUMER COOPERATIVE BANK (the “Company”), a corporation
organized and existing under the laws of the United States, hereby promises to pay to
[                    ], or registered assigns, the principal sum of [                    ]
DOLLARS on December 15, 2010, with interest (computed on the basis of a year of 360 days for the
actual number of days (including the first day but excluding the last day) occurring in the period
for which such interest is payable) (a) on the unpaid balance thereof at the Interest Rate per
annum specified above, payable on each Interest Payment Date specified above and on the Final
Maturity Date specified above, commencing with the Interest Payment Date next succeeding the date
hereof, until the principal hereof shall have become due and payable, and (b) on and after any
Event of Default, on all amounts owing hereunder, including all principal and any overdue payment
of interest, payable on each Interest Payment Date as aforesaid (or, at the option of the
registered holder hereof, on demand), at a rate per annum from time to time equal to the greater of
(i) three percent (3%) in excess of the interest rate in effect pursuant to the preceding clause
(a) or (ii) the rate of interest publicly announced by Bank of New York from time to time in New
York City as its Prime or Base Rate.



For purposes of this Note, “Applicable Rate” means, at any time, 13.5% per annum.



Payments of principal of, and interest on, this Note are to be made at the main office of Bank
of New York in New York City or at such other place as the holder hereof shall designate to the
Company in writing, in lawful money of the United States of America.



This Note is one of a series of Notes (herein called the “Notes”) issued pursuant to a Note
Purchase and Uncommitted Master Shelf Agreement (as amended and as the same may from time to time
be amended, restated, modified or supplemented, the “Agreement”), originally dated as of December
28, 2001, between the Company, The Prudential Insurance Company of America, and such other
Purchasers as may become parties thereto from time to time, and is entitled to the benefits
thereof. As provided in the Agreement, this Note is subject to certain required prepayments and the
Company is permitted to make optional prepayments, in whole or from time to time in part on the
terms specified in the Agreement.


 


 









 





This Note is a registered Note and, as provided in the Agreement, upon surrender of this Note
for registration of transfer, duly endorsed, or accompanied by a written instrument of transfer
duly executed, by the registered holder hereof or such holder’s attorney duly authorized in
writing, a new Note for a like principal amount will be issued to, and registered in the name of,
the transferee. Prior to due presentment for registration of transfer, the Company may treat the
person in whose name this Note is registered as the owner hereof for the purpose of receiving
payment and for all other purposes, and the Company shall not be affected by any notice to the
contrary.



In case an Event of Default, as defined in the Agreement, shall occur and be continuing, the
principal of this Note may be declared or otherwise become due and payable in the manner and with
the effect provided in the Agreement.



This Note is intended to be performed in the State of New York and shall be construed and
enforced in accordance with the law of such State.



	 	 	 	 	 
	 	NATIONAL CONSUMER COOPERATIVE BANK

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



 


 









 





Exhibit A-2




NATIONAL CONSUMER COOPERATIVE BANK




SHELF NOTE




	 	 	 
	No. R-[_____]
	 	 
	ORIGINAL PRINCIPAL AMOUNT:

	 	$[                    ]
	ORIGINAL ISSUE DATE:

	 	December 28, 2005
	INTEREST RATE:

	 	Applicable Rate (as defined herein below)
	INTEREST PAYMENT DATES:

	 	Monthly on the first Business Day of each month
	FINAL MATURITY DATE:

	 	December 15, 2010
	PRINCIPAL INSTALLMENT
DATES AND AMOUNTS:

	 	Payable in full on scheduled Final Maturity
Date and as otherwise set forth in the Note Agreement.
	SECURITY NUMBER:

	 	63556*BV7






FOR VALUE RECEIVED, NATIONAL CONSUMER COOPERATIVE BANK (the “Company”), a corporation
organized and existing under the laws of the United States, hereby promises to pay to
[                    ], or registered assigns, the principal sum of [                    ]
DOLLARS on December 15, 2010, with interest (computed on the basis of a year of 360 days for the
actual number of days (including the first day but excluding the last day) occurring in the period
for which such interest is payable) (a) on the unpaid balance thereof at the Interest Rate per
annum specified above, payable on each Interest Payment Date specified above and on the Final
Maturity Date specified above, commencing with the Interest Payment Date next succeeding the date
hereof, until the principal hereof shall have become due and payable, and (b) on and after any
Event of Default, on all amounts owing hereunder, including all principal and any overdue payment
of interest, payable on each Interest Payment Date as aforesaid (or, at the option of the
registered holder hereof, on demand), at a rate per annum from time to time equal to the greater of
(i) three percent (3%) in excess of the interest rate in effect pursuant to the preceding clause
(a) or (ii) the rate of interest publicly announced by Bank of New York from time to time in New
York City as its Prime or Base Rate.



For purposes of this Note, “Applicable Rate” means, at any time, 13.5% per annum.



Payments of principal of, and interest on, this Note are to be made at the main office of Bank
of New York in New York City or at such other place as the holder hereof shall designate to the
Company in writing, in lawful money of the United States of America.



This Note is one of a series of Notes (herein called the “Notes”) issued pursuant to a Note
Purchase and Uncommitted Master Shelf Agreement (as amended and as the same may from time to time
be amended, restated, modified or supplemented, the “Agreement”), originally dated as of December
28, 2001, between the Company, The Prudential Insurance Company of America, and such other
Purchasers as may become parties thereto from time to time, and is entitled to the benefits
thereof. As provided in the Agreement, this Note is subject to certain required prepayments and the Company is permitted
to make optional prepayments, in whole or from time to time in part on the terms specified in the
Agreement.


 


 









 





This Note is a registered Note and, as provided in the Agreement, upon surrender of this Note
for registration of transfer, duly endorsed, or accompanied by a written instrument of transfer
duly executed, by the registered holder hereof or such holder’s attorney duly authorized in
writing, a new Note for a like principal amount will be issued to, and registered in the name of,
the transferee. Prior to due presentment for registration of transfer, the Company may treat the
person in whose name this Note is registered as the owner hereof for the purpose of receiving
payment and for all other purposes, and the Company shall not be affected by any notice to the
contrary.



In case an Event of Default, as defined in the Agreement, shall occur and be continuing, the
principal of this Note may be declared or otherwise become due and payable in the manner and with
the effect provided in the Agreement.



This Note is intended to be performed in the State of New York and shall be construed and
enforced in accordance with the law of such State.



	 	 	 	 	 
	 	NATIONAL CONSUMER COOPERATIVE BANK

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



 


 









 





Exhibit B




 


Exhibit B 









 








			
	TO:	 	ADMINISTRATIVE AGENT (as defined below)

c/o SunTrust Banks, Inc.

Mail Code NA-TN-1982

401 Commerce Street

Suite 2500

Nashville, TN 37219

Attn: Samuel M. Ballesteros

Senior Vice President


NOTEHOLDERS (as defined below)

c/o The Prudential Insurance Company

Three Gateway Center

7th Floor

Newark, NJ 07102-4069

United States of America

Attn: Paul Procyk







			
	Re:	 	Prepayment of $                    






Ladies and Gentlemen:



Reference is hereby made to that certain (a) Credit Agreement, dated as of May 1, 2006 (as
amended, restated, supplemented or otherwise modified from time to time, the “Credit
Agreement”), by and among National Consumer Cooperative Bank, D/B/A National Cooperative Bank
(“Borrower”), the lenders party thereto from time to time (collectively, the
“Banks”), the other agents party thereto and SunTrust Bank (“SunTrust”), as
administrative agent (in such capacity, “Administrative Agent”), (b) Note Purchase and
Uncommitted Master Shelf Agreement, dated as of December 28, 2001 (as amended, restated,
supplemented or otherwise modified from time to time, the “Note Agreement”), by and among
the Borrower and each of the institutional investors signatory thereto (the “Noteholders”),
and (c) Intercreditor and Collateral Agency Agreement, dated as of April 30, 2009 (as amended,
restated, supplemented or otherwise modified from time to time, the “Intercreditor
Agreement”), among SunTrust, in its capacity as collateral agent, SunTrust, in its capacity as
Administrative Agent, and the Noteholders. Capitalized terms used herein but not otherwise defined
shall have the meaning ascribed to such terms in the Credit Agreement or the Note Agreement, as
applicable.


 


 









 





Borrower has offered payment of $_____ as a prepayment of principal, plus accrued and
unpaid interest thereon through the date hereof in an amount of $_____, (collectively, the
“Payment”). The Payment shall be allocated as follows:



(i) to the Banks in the amount of $_____ in respect of principal plus $_____ in
respect of accrued interest thereon;



(ii) to the 2009 Noteholders (as defined in the Intercreditor Agreement) in the amount of
$_____
in respect of principal plus $_____ in respect of accrued interest thereon;
and



(iii) to the 2010 Noteholders (as defined in the Intercreditor Agreement) in the amount of
$_____ in respect of principal plus $_____ in respect of accrued interest thereon.



By acceptance of the payment described herein, the Administrative Agent and the Noteholders
agree that, notwithstanding anything to the contrary contained in the Intercreditor Agreement, the
allocation of the Payments shall not constitute “Shared Payments” (as defined in the Intercreditor
Agreement).



This payment letter shall be effective as of the date set forth above only upon the execution
and delivery hereof by the Borrower. Borrower hereby acknowledges, confirms and agrees that
Borrower shall pay to Administrative Agent and the Noteholders all reasonable and documented
costs, fees, expenses and charges of every kind in connection with the preparation, negotiation,
execution and delivery of this payment letter and any document and instrument relating hereto.



This payment letter shall be determined under, governed by and construed in accordance with
the laws 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.



[remainder of page intentionally left blank]




 


 









 







IN WITNESS WHEREOF, the Borrower has executed this payment letter as of the date first above
written.



	 	 	 	 	 
	 	NATIONAL CONSUMER COOPERATIVE BANK, as Borrower

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	Consented to pursuant to Paragraph 4H of the Note
Agreement and Section 10.19 of the Credit Agreement:



SUNTRUST BANK, as Collateral Agent

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title: