AMENDMENT NO. 5
TO
RECEIVABLES PURCHASE AGREEMENT
THIS AMENDMENT NO. 5 TO RECEIVABLES PURCHASE AGREEMENT (the
"Amendment") dated as of August 25, 1998 is entered into by and among APR
FUNDING CORPORATION, a Delaware corporation (the "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 (the "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;
WHEREAS, pursuant to certain correspondence received by the Purchaser
from the Virginia Bureau of Insurance (the "Bureau"), all Receivables in the
Receivables Pool owing by Direct Obligors resident in the Commonwealth of
Virginia (collectively, "Virginia Receivables") have become Adverse
Determination Receivables;
WHEREAS, under Section 3.07(b) of the Agreement, upon the Purchaser's
demand, the Seller is required to repurchase the Purchaser's ownership interest
in Adverse Determination Receivables at the end of related applicable Yield
Periods;
WHEREAS, the Purchaser is so demanding the repurchase of its ownership
interest in the Virginia Receivables under Section 3.07(b) of the Agreement; and
WHEREAS, in accordance with certain instructions received by the
Purchaser from the Bureau, the parties hereto have agreed to modify certain
terms and provisions of the Agreement as set forth herein in order to avoid the
inclusion, after the effectiveness of this Amendment, of any additional Virginia
Receivables in the Receivables Pool;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
SECTION 1. REPURCHASE OF ADVERSE DETERMINATION RECEIVABLES. The
Purchaser hereby demands that the Seller repurchase the Purchaser's ownership
interest in all of the Virginia Receivables outstanding at the opening of
business of the Servicer on , 1998 (the "Repurchase Date")
(which date corresponds with the end of a Yield Period) for a repurchase price
calculated on such day in accordance with the terms of Section 3.07(b) of the
Agreement (the "Repurchase Price"). The Seller represents and warrants that
attached hereto as Exhibit A is a complete and accurate list of all Virginia
Receivables outstanding at the opening of business of the Servicer on
, 1998 (the "Estimation Date"), and a calculation of the
corresponding estimated repurchase price based on Virginia Receivables
outstanding at the opening of business on the Estimation Date. The Seller
covenants that it shall calculate the Repurchase Price on and as of the opening
of business of the Servicer on the Repurchase Date, and shall give prompt notice
to the Purchaser of the Repurchase Price (in all events, such notice to be given
no later than 10:30 A.M. Boston, Massachusetts time on the same day). In the
event that the Seller requests that the Purchaser make an additional Purchase on
the Repurchase Date under Section 1.02(a) of the Agreement, the Seller shall
also calculate, and give the Purchaser notice of, an amount equal to the
remainder of the Repurchase Price minus the amount otherwise payable by the
Purchaser to the Seller in respect of such Purchase (such net amount being (x)
the "Net Seller Remittance" in the event such net amount is positive, and (y)
the "Net Purchaser Remittance" in the event such net amount is negative).
Immediately upon (i) receipt by the Purchaser from the Seller of the notice of
the Repurchase Price, and (ii) (A) receipt of the amount of the Repurchase Price
in the Purchaser's account at Bankers Trust Company, 4 Albany Street, New York,
New York 10006, Account No. 22062, ABA No.: 021-001-033; Reference: APR Funding
Collateral Account (the "Purchaser's Account"), or (B) in the event that the
Seller requests that the Purchaser make an additional Purchase on the Repurchase
Date under Section 1.02(a) of the Agreement, to the extent applicable (1)
receipt of the amount of the Net Seller Remittance in the Purchaser's Account,
or (2) receipt by the Seller of an amount equal to the absolute value of the Net
Purchaser Remittance in the Agent's Account, such Adverse Determination
Receivables shall thereupon be deemed removed from the Receivables Pool for all
purposes hereunder and under the Agreement (the consummation of such removal
being hereinafter referred to as the "Repurchase"). Notwithstanding anything
herein or elsewhere to the contrary, the occurrence of the Repurchase shall not
substitute for, or limit the applicable indemnification obligations under,
Article XIII of the Agreement in favor of any of the Indemnified Parties
(including, without limitation, the Purchaser), which may have been incurred in
connection with the Adverse Determination and the negotiation and execution of
the Repurchase.
SECTION 2. AMENDMENTS TO THE AGREEMENT. Effective as of the first
date on which each of the conditions set forth in Section 3 hereof shall have
been satisfied, the Agreement is amended as follows:
(a) The definition of "Receivable" in Appendix A of the Agreement is
hereby amended to insert the following parenthetical phrase after the first
reference to the word "Obligor" therein:
"(other than a Virginia Obligor)".
(b) Appendix A of the Agreement is hereby further amended to insert
the following definition after the definition of the term "Unpaid Principal
Balance":
"'Virginia Obligor' means a Direct Obligor resident in the
Commonwealth of Virginia.".
SECTION 3. CONDITIONS PRECEDENT. This Amendment shall become
effective upon the satisfaction of each of the following conditions precedent:
(a) The Agent shall have received the following (including all
attachments thereto), each in form and substance satisfactory to the Agent:
(i) Eight fully executed copies of this Amendment; and
(ii) Such other further documents and information as the Agent
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; and
(c) The Repurchase shall have occurred in accordance with Section 1
hereof.
SECTION 4. REPRESENTATIONS, WARRANTIES AND COVENANTS. 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).
SECTION 5. CONSENT AND REAFFIRMATION. The Parent, by its execution
hereof, hereby (i) consents to the execution, delivery and performance of this
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 6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 7. 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 8. 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 9. 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 10. FEES AND EXPENSES{TC ". 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
Exhibit A
List of Virginia Receivables
[TO BE PROVIDED BY THE SELLER]
Calculation of Repurchase Price as of Estimation Date
[TO BE PROVIDED BY THE SELLER]