EXHIBIT 4.F3
Execution Copy
SECOND AMENDMENT TO
LOAN PURCHASE AND SERVICING AGREEMENT
DATED AS OF MAY 13, 1994
This SECOND AMENDMENT TO LOAN PURCHASE AND SERVICING AGREEMENT
DATED AS OF MAY 13, 1994 AND AMENDED AS OF JULY 15, 1994 (this "Second
Amendment") is entered into as of this 28th day of September, 1995 by and
between United Resources, Inc., as Seller and Servicer ("United Resources"),
United Grocers, Inc., as Guarantor (the "Guarantor") and National Consumer
Cooperative Bank, as Buyer (the "Buyer").
WHEREAS, United Resources, the Guarantor and the Buyer entered into
a certain Loan Purchase and Servicing Agreement dated as of May 13, 1994 and
amended as of July 15, 1994 (the "Agreement") which provides for United
Resources to sell and Buyer to purchase Loans satisfying the terms and
conditions of the Agreement; and
WHEREAS, the parties to the Agreement desire to amend the Agreement
to provide for the purchase of certain "Rays' Loans" and to provide for the
sharing of the Guaranty Amount and the "Holdback Guaranty Amount" as described
herein.
NOW, THEREFORE, for full and fair consideration, the parties hereto
agree as follows:
1. Amendments. (a) The following definitions in Section 1.01
of Article I of the Agreement are hereby amended to read as follows:
"Guaranty Amount" shall mean, at any time, an amount equal to (a)
the sum of (i) fifteen percent (15%) of the Purchase Price of each
Preferred Loan, (ii) forty-nine percent (49%) of the Purchase Price of
each Standard Loan, and (iii) one hundred percent (100%) of the Purchase
Price of each Full Recourse Loan, minus (b) all amounts previously
remitted or paid hereunder by Guarantor to Buyer pursuant to the Guaranty
or the Holdback Guaranty; provided, however, that at no time shall the
Guaranty Amount be less than the sum of the Purchase Price of the sum of
the three largest Loans or the sum of the three largest Aggregate
Exposures, whichever is greater at such time.
"Loan" shall mean each loan originated by Seller in the ordinary
course of its business and sold and transferred (in its entirety or
through a participation interest therein) to the Buyer pursuant to this
Agreement, together with the rights and obligations of a holder thereof,
payments thereon and proceeds therefrom, the Loans originally subject to
this Agreement being identified on the Loan Schedule. "Loan" shall also
include any Renewal Loan or Rays' Loan accepted by the Buyer under this
Agreement.
"Maximum Purchase Amount" shall mean $28,750,000, unless otherwise
increased or reduced by the parties hereto.
"Principal Balance" shall mean, with respect to any Loan, at any
date of determination, (i) the principal balance of the Loan (or if a
participation interest in such Loan is being purchased hereunder, the
product of (a) the percentage participation interest specified with
respect to such Loan in the Loan Schedule times (b) the principal balance
of the Loan) outstanding as of the applicable Cut-Off Date, after
application of the principal payments received on or before such date,
minus (ii) the sum of (a) the principal portion of the Monthly Payments
received during each Due Period ending prior to the most recent Payment
date, which were distributed pursuant to Section 5.07 on any previous
Payment Date, and (b) all Principal Prepayments, Payaheads, Insurance
Proceeds, Net Liquidation Proceeds, Guaranty Payments, payments under the
Holdback Guaranty and Repurchase Proceeds to the extent applied by the
Servicer as recoveries of principal in accordance with the provisions
hereof, which were distributed pursuant to Section 5.07 on any previous
Payment Date.
(b) The following definitions are hereby added to Section 1.01
of Article I of the Agreement:
"Holdback Guaranty" shall mean the Guaranty provided by the
Guarantor pursuant to Section 2.01(a) of the Holdback Guaranty Agreement.
"Holdback Guaranty Agreement" shall mean the Guaranty Agreement
(Holdback Program) dated as of September 28, 1995, by and between United
Grocers, Inc., as guarantor, and NCB, in the form of Exhibit Q attached
hereto.
"Holdback Guaranty Amount" shall mean the "Guaranty Amount"
available under the Holdback Guaranty Agreement.
"Holdback Loan Purchase Agreement" shall mean the Loan Purchase and
Servicing Agreement (Holdback Program) dated as of September 28, 1995, by
and between United Resources, as seller and servicer, and NCB, as buyer.
"Rays' Loan" shall mean certain loans relating to the Rays'/C&K
Market sold by United Resources to NCB pursuant to the Holdback Loan
Purchase Agreement and repurchased by United Resources pursuant to
Section 7.04 of the Holdback Loan Purchase Agreement after any such Rays'
Loan satisfies the Loan eligibility requirements set forth in
Section 4.02 of the Agreement.
(c) Section 2.01A of the Agreement is hereby amended to read as
follows:
SECTION 2.01A Incremental Purchase. (a) Subject to the terms
and conditions hereof, the Seller may at any time prior to June 30, 1996
(or such later date as is approved by Buyer) sell to the Buyer and the
Buyer shall purchase from the Seller certain identified Loans and
Property related thereto (each, an "Incremental Purchase"); provided,
however, that no Incremental Purchase shall be for a principal amount of
less than $2,000,000 (or such lesser amount as is approved by Buyer)
(other than the final Incremental Purchase which may be in such lesser
amount as agreed to by Buyer or such other lesser amount as is approved
by Buyer) and provided further, that the Buyer shall not be obligated to
make an Incremental Purchase (or any portion thereof) to the extent such
Purchase (or any portion thereof), together with all previous Incremental
Purchases, would exceed the Maximum Purchase Amount.
(b) Subject to the terms and conditions hereof (other than the
payment of any fees or expenses relating to such Incremental Purchase),
Buyer hereby agrees to make one or more Incremental Purchases of Rays'
Loans having an aggregate Principal Balance of not more than $2,000,000.
(c) The Seller shall provide the Buyer with written notice of its
intention to request an Incremental Purchase in the form of Exhibit E
hereto no later than ten (10) Business Days before each Incremental
Purchase and shall provide the Buyer with at least five (5) Business Days
to review the Loan Files relating to each Incremental Purchase. Upon
satisfaction of all terms and conditions contained herein, Buyer shall
pay to the Seller the Purchase Price of each Incremental Purchase on the
applicable Closing Date.
(d) Section 7.01 (a) of the Agreement is hereby amended to read
as follows:
SECTION 7.01 Guarantor's Guaranty and Repurchase Guaranty. In
order to induce Buyer to purchase the Loans, Guarantor hereby agrees to
provide the following guaranties:
(a) Guarantor hereby agrees to provide to the Buyer a Guaranty
of Liquidation Losses, equal at any time to the then current Guaranty
Amount. After a Loan has become a Liquidated Loan and the amount of
Liquidation Loss thereon has been determined, the Buyer shall notify
Guarantor of the amount of Liquidation Loss and, within five (5) Business
Days of receipt of such notice, Guarantor shall make a Guaranty Payment
to the Buyer in the amount of such Liquidation Loss; provided, however,
that Guarantor's obligation to make a Guaranty Payment shall be limited
to first, the then available Guaranty Amount, and if the Guaranty Amount
is exhausted, the then available Holdback Guaranty Amount.
(e) A new subsection (d) is added to Section 7.01 of the
Agreement and reads as follows:
(d) The parties to this Agreement hereby expressly acknowledge
that the Guaranty Amount will be available to support the Holdback
Guaranty to the extent the Holdback Guaranty Amount has been exhausted
and conversely, that the Holdback Guaranty Amount will be available to
support Guarantor's Guaranty hereunder to the extent the Guaranty Amount
is exhausted.
(f) A new Termination Event is added as subsection (h) of
Section 10.01 of the Agreement and reads as follows:
(h) Termination Event under Holdback Loan Purchase Agreement. A
Termination Event shall have occurred and be continuing under the
Holdback Loan Purchase Agreement.
(g) Section 10.02 of the Agreement is amended to read as follows:
SECTION 10.02 Consequences of Termination Event. If any
Termination Event shall occur and be continuing, then in any such case
and at any time thereafter so long as such Termination Event shall be
continuing, the Buyer may, at its option, immediately terminate Buyer's
obligations to make Incremental Purchases and to accept Renewal Notes
hereunder.
In addition, upon the occurrence of any Termination Event specified
in (c), (d) or (e) of Section 10.01 or a Termination Event arising out of
Servicer's or Guarantor's insolvency or involvement in a voluntary or
involuntary bankruptcy proceeding, subject to the provisions of
Section 11.15, this Agreement shall automatically and immediately
terminate.
Thereafter, and before exercising any other remedies provided
herein or by applicable law, Buyer may, at its option, require that
Seller repurchase all Loans and related Property Notes for the Purchase
Amount within two 2 Business Days of receipt of notice from the Buyer of
its election to cause the repurchase of all Loans. In addition, Buyer
may pursue all other rights and remedies available herein and by
applicable law including, without limitation, its rights to pursue
collection from the Seller in an amount equal to the applicable Purchase
Amount.
(h) A new Section 11.15 is added to the Agreement and reads as
follows:
SECTION 11.15 Term of Agreement. This Agreement shall
terminate upon the earlier to occur of (i) the reduction of the aggregate
Principal Balance of the Loans (including Liquidated Loans as to which
there remain unpaid Liquidation Losses) to zero or (ii) the date on which
this Agreement is automatically terminated following the occurrence of
any of the specified Termination Events pursuant to Section 10.02;
provided, however, that (a) the rights accrued to the Buyer prior to such
termination, (b) the obligations of the Guarantor under this Agreement,
and (c) the indemnification provisions set forth in Section 11.02 shall
be continuing and shall survive any termination of this Agreement.
2. Capitalized Terms. Capitalized terms used in this Second
Amendment and not otherwise defined shall have the meanings given them in the
Agreement.
3. Ratification. Except as specifically amended hereby, all of
the terms and conditions of the Agreement shall remain in full force and
effect. All references to the Agreement in any other document or instrument
shall be deemed to mean such Agreement as amended by this Second Amendment.
This Second Amendment shall not constitute a novation of the Agreement, but
shall constitute an amendment thereof. The parties hereto agree to be bound
by the terms and obligations of the Agreement, as amended by this Second
Amendment, as though the terms and obligations of the Agreement were set forth
herein.
4. Effectiveness. The amendments provided for by this Second
Amendment shall become effective when duly executed by each of the parties
hereto.
5. Counterparts. This Second Amendment may be executed in any
number of counterparts and by separate parties hereto on separate
counterparts, each of which when executed shall be deemed an original, but all
such counterparts taken together shall constitute one and the same instrument.
6. Governing Law. THIS SECOND AMENDMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this Second
Amendment to be executed by their respective officers or agents thereunto duly
authorized as of the date first above written.
UNITED RESOURCES, INC., as Seller and
as Servicer
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its President
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Its Vice President
UNITED GROCERS, INC., as Guarantor
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Its President
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its Assistant Secretary
NATIONAL CONSUMER COOPERATIVE BANK,
as Buyer
By
Its
By
Its