AMENDMENT NO. 4
TO
RECEIVABLES PURCHASE AGREEMENT
THIS AMENDMENT NO. 4 TO RECEIVABLES PURCHASE AGREEMENT (the
"Amendment") dated as of May 29, 1998 is entered into by and among APR FUNDING
CORPORATION, a Delaware corporation ("Seller"), UNIVERSAL PREMIUM ACCEPTANCE
CORPORATION, a Missouri corporation, individually ("UPAC") and as Servicer (in
such capacity, the "Servicer"), TRANSFINANCIAL HOLDINGS, INC. (formerly known as
Anuhco, Inc.), a Delaware corporation (the "Parent"), EAGLEFUNDING CAPITAL
CORPORATION, a Delaware corporation ("Purchaser"), and BANKBOSTON, N.A.
(formerly known as THE FIRST NATIONAL BANK OF BOSTON) (as "Agent", as
"Custodian" and in its individual capacity). Capitalized terms used herein and
not otherwise defined herein shall have the meanings ascribed to such terms in
Appendix A to the "Agreement" (as defined below).
W I T N E S S E T H:
WHEREAS, the Seller, UPAC, the Servicer, the Parent, the Purchaser and
the Agent have entered into that certain Receivables Purchase Agreement dated as
of December 31, 1996 (as the same shall have been amended through the date
hereof, the "Agreement"; the terms defined therein being used herein as therein
defined unless otherwise defined herein), pursuant to which, among other things,
the Seller has agreed to sell to the Purchaser, and the Purchaser has agreed to
purchase from the Seller, undivided percentage interests in the Seller's
Receivables; and
WHEREAS, the parties hereto have agreed to modify certain terms and
provisions of the Agreement as set forth herein;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
SECTION 1. AMENDMENTS TO THE AGREEMENT. Effective as of the first
date on which each of the conditions set forth in Section 2 hereof shall have
been satisfied, the Agreement is amended as follows:
(a) Section 1.01 of the Agreement is hereby amended to delete the
amount "$50,000,000" and to substitute therefor "$65,000,000".
(b) The definition of "Change in Control" is hereby amended to delete
the references to "APR" in clause (b) thereof and to substitute therefor
"UPAC".
(c) The definition of "Excess Concentration Deduction" in Appendix A
of the Agreement is hereby amended to delete the tables in Section (A)2 of
such definition and to substitute the following tables therefor:
Best's Rating Generation Limit
B to A++ 2.0%
B- (or lower) 0.5%
(d) The definition of "Excess Concentration Deduction" in Appendix A
of the Agreement is hereby further amended to add the following Sections
A(4) and (I) thereto:
4. If the Insurance Obligor is not described in any of clauses 1 through
3 above: 0.5%.
(I) Certain Insurance Obligors in the Aggregate. The amount by which
(x) the aggregate unpaid principal balance of all Eligible Receivables
having Insurance Obligors which either (1) have a Best's Rating of
lower than B-, or (2) are not otherwise described in any of clauses 1
through 3 of Section (A) of this definition, exceeds (y) an amount
equal to 2.5% of the unpaid principal balance of all Eligible
Receivables.
(e) The definition of "Eligible Insurance Carrier" in Appendix A of
the Agreement is hereby amended to delete clause (b) thereof.
(f) Schedule 6.01(o) is amended to add the following to the list of
banks:
Oxford Bank & Trust (as Depository Bank)
1100 Lake Street
Addison, Illinois 60101
(g) Exhibit 3.03(b) "Form of Weekly Report" is replaced in its
entirety by Exhibit 3.03(b) attached hereto.
SECTION 2. CONDITIONS PRECEDENT. This Amendment shall become
effective upon the satisfaction of the following conditions precedent:
(a) The Agent shall have received the following (including all
attachments thereto), each (unless otherwise indicated) dated the date of
the initial Originator Purchase from Oxford under the Purchase and Sale
Agreement and in form and substance satisfactory to the Agent:
(i) Eight fully executed copies of (A) this Amendment, (B)
Amendment No. 1 to the Purchase and Sale Agreement, (C) the letter
agreement amending the Fee Agreement, in the form of Exhibit A
attached hereto, and (D) the letter agreement amending the fee letter
referred to in Section 2.10 of the Liquidity Agreement, in the form of
Exhibit B attached hereto;
(ii) A copy of the resolutions of the Board of Directors of
Oxford approving the Purchase and Sale Agreement and Amendment No. 1
to the Purchase and Sale Agreement and the transactions contemplated
thereby certified by its Secretary or Assistant Secretary;
(iii) Good standing certificate for Oxford issued by the
Secretary of State of Illinois;
(iv) A certificate of the Secretary or Assistant Secretary
of Oxford certifying the names and true signatures of the officers
authorized on its behalf to sign Amendment No.1 to the Purchase and
Sale Agreement;
(v) The Articles of Incorporation of Oxford, duly certified
by the Secretary of State of Illinois, as of a recent date acceptable
to the Agent, together with a copy of the By-laws of Oxford, duly
certified by the Secretary or an Assistant Secretary of Oxford;
(vi) Copies of acknowledgment copies of (A) proper Financing
Statements (Form UCC-1), naming Oxford, as Originator, as the assignor
of Receivables, Funding, as secured party/purchaser, and Seller as
assignee of such Financing Statements, and (B) proper terminations of
Financing Statements (Form UCC-3), terminating any and all Financing
Statements which cover any Receivable or Contract other than pursuant
to the Purchase and Sale Agreement or the Agreement;
(vii) Copies of search reports (including tax, UCC, ERISA and
judgment liens) provided in writing to the Agent, listing all
effective financing statements that name Oxford as debtor and that are
filed in or relate to the jurisdictions in which filings were made
pursuant to subsection (vi) above, together with copies of such
financing statements (none of which shall cover any Receivables or
Contracts other than pursuant to the Agreement or the Purchase and
Sale Agreement );
(viii) Duly executed Deposit Account Agreement with Oxford
Bank and Trust;
(ix) Such powers of attorney as Agent or the Purchaser shall
reasonably request to enable them to collect all amounts due under any
and all Contracts and related Receivables originated by Oxford;
(x) Evidence that Oxford has marked its master data
processing records to reflect Funding's (or Funding's assignee's)
interest in each Pool Receivable;
(xi) An executed copy of an amendment to the Tax Sharing
Agreement among Parent and its "affiliated group of companies"
(including APR, UPAC, UPAC of California and Oxford), adding Oxford as
a party thereto;
(xii) Opinions of Polsinelli, White, Vardeman & Shalton,
counsel to Oxford as to perfection, authority and other matters in
form and substance satisfactory to the Agent;
(xiii) Opinions of Polsinelli, White, Vardeman & Shalton,
counsel to Seller and Oxford as to "true sale" and "nonsubstantive
consolidation" in form and substance satisfactory to the Agent;
(xiv) An executed copy of the Subordinated Intercompany
Revolving Note payable by the Seller to Oxford; and
(xv) Such other further documents and information as Funding
shall reasonably request.
(b) No event or condition has occurred and is continuing, or would
result from the execution, delivery or performance of this Amendment, which
would constitute a Liquidation Event or Unmatured Liquidation Event;
(c) The Purchaser shall have obtained confirmation from each of the
three rating agencies rating the Commercial Paper Notes that the amendment
herein to the definition of "Excess Concentration Deduction" will not
result in a withdrawal or reduction of the ratings of the Commercial Paper
Notes;
(d) All of the fees and expenses referred to in Section 9 below and
any other fees and expenses owing under Section 14.05 of the Agreement
shall have been paid in full; and
(e) The conditions precedent to the effectiveness of Amendment No. 2
to the Liquidity Agreement shall have been fully satisfied.
SECTION 3. REPRESENTATIONS, WARRANTIES AND COVENANTS.
(a) Upon the effectiveness of this Amendment, each of the Seller,
UPAC, the Servicer and the Parent, hereby remakes and reaffirms all
covenants, representations and warranties made by it (or deemed made by it)
in the Agreement, the Backup Servicing Agreement, the Custody Agreement and
the Parent Support Agreement (except, in each case, to the extent that such
covenants, representations or warranties expressly speak as to another
date).
(b) Each of the Seller, UPAC and the Parent covenants and agrees that
none of the proceeds of any Purchase shall be used directly or indirectly
to purchase the capital stock of Oxford from Oxford Bank & Trust.
SECTION 4. CONSENT AND REAFFIRMATION. The Parent, by its execution
hereof, hereby (i) consents to the execution, delivery and performance of the
Amendment by all of the parties hereto and (ii) reaffirms all of its obligations
and liabilities under that certain Parent Support Agreement dated as of December
31, 1996 executed by the Parent in favor of the Seller and its successors and
assigns, which obligations and liabilities shall remain in full force and
effect.
SECTION 5. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (AS DISTINGUISHED FROM THE
CONFLICT OF LAW PROVISIONS) OF THE STATE OF NEW YORK.
SECTION 6. SEVERABILITY. Each provision of this Amendment shall be
severable from every other provision of this Amendment for the purpose of
determining the legal enforceability of any provision hereof, and the
unenforceability of any provision hereof in one jurisdiction shall not have the
effect of rendering such provision or provisions unenforceable in any other
jurisdiction.
SECTION 7. REFERENCE TO AND EFFECT ON THE AGREEMENT. Upon the
effectiveness of this Amendment, each reference in the Agreement to "this
Agreement", "hereunder", "hereof", "herein" or words of like import shall mean
and be, and references to the Agreement in any other document, instrument or
agreement executed and/or delivered in connection with the Agreement shall mean
and be, a reference to the Agreement as previously amended and as amended
hereby. Except as otherwise amended by this Amendment, the Agreement as
previously amended shall continue in full force and effect and is hereby
ratified and confirmed.
SECTION 8. COUNTERPARTS. This Amendment may be executed in one or
more counterparts, each of which shall be deemed to be an original, but all of
which together shall constitute one and the same instrument.
SECTION 9. FEES AND EXPENSES. The Seller hereby confirms its
agreement to pay on demand all reasonable costs and expenses in connection with
the preparation, execution and delivery of this Amendment and any of the other
instruments, documents and agreements to be executed and/or delivered in
connection herewith, including, without limitation, the reasonable fees and out-
of-pocket expenses of counsel to the Agent with respect thereto.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed as of the date first above written.
APR FUNDING CORPORATION,
as Seller
By
Title
UNIVERSAL PREMIUM ACCEPTANCE CORPORATION,
individually and
as initial Servicer
By
Title
TRANSFINANCIAL HOLDINGS, INC.
(formerly known as Anuhco, Inc.)
as Parent
By
Title:
EAGLEFUNDING CAPITAL CORPORATION,
as Purchaser
By: BANKBOSTON, N.A.(formerly known as The First
National Bank of Boston) as its attorney-in-
fact
By
Title
BANKBOSTON, N.A.(formerly known as THE FIRST
NATIONAL BANK OF BOSTON), as Agent
By
Title
Acknowledged and agreed to
as of this 29th day of May, 1998 in
accordance with Section 5.03 of that
certain Liquidity Agreement dated as of
December 31, 1996, as amended, among the
Purchaser, the financial institutions from
time to time parties thereto (the "Liquidity
Providers"), BankBoston, N.A.(formerly
known as The First National Bank of Boston),
as liquidity agent (the "Liquidity
Agent") and Bankers Trust Company, as
collateral agent (the "Collateral Agent")
BANKBOSTON, N.A. (formerly known as THE
FIRST NATIONAL BANK OF BOSTON), as a
Liquidity Provider
By
Title
HARRIS TRUST AND SAVINGS BANK,
as a Liquidity Provider
By
Title