Exhibitt 10.1 [Execution Version]
AMENDMENT NO. 7
TO
RECEIVABLES PURCHASE AGREEMENT
THIS AMENDMENT NO. 7 TO RECEIVABLES PURCHASE AGREEMENT (the
"Amendment") dated as of July 12, 1999 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 "$85,000,000" and to substitute therefor "$75,000,000".
(b) Section 7.06(e) of the Agreement is hereby deleted in its
entirety and replaced with the following:
"Permit UPAC's consolidated Book Net Worth to be
less than $20,000,000."
(c) Section 7.07 of the Agreement is hereby amended to add the
following, immediately following paragraph (c) thereof:
"(d) Maintain a ratio of Consolidated EBITDA to
consolidated interest expense for each fiscal
quarter of at least 1.50 to 1.0 (calculated as of
the last Business Day of each fiscal quarter)."
(d) Section 7.09(a) of the Agreement is hereby amended to delete the
amount "$40,000,000" and to substitute therefor "$35,000,000".
(e) Section 7.09 of the Agreement is hereby amended to add the
following, immediately following paragraph (b) thereof:
"(c) Undertake to repurchase any of its stock."
(f) Clause (A) 3. of the definition of "Excess Concentration
Deduction" in Appendix A of the Agreement is hereby amended to delete the 4.0%
Concentration Limits for Lloyd's and to substitute therefor the following:
"the greater of (i) if Lloyd's shall have received
a debt rating from either of S&P or Moody's, the
applicable Concentration Limit, as set forth in
clause (A) 1. hereof, and (ii) 4.0%."
(g) Appendix A of the Agreement is hereby amended to add the
following definition, immediately following the definition of "Best's Rating"
and immediately preceding the definition of "Business Day":
"'Book Net Worth' means, for any period, total
assets less total liabilities, as determined in
accordance with GAAP."
(h) Appendix A of the Agreement is hereby amended to add the
following definition, immediately following the definition of "Finance Charge
Receivable" and immediately preceding the definition of "Indemnified Amounts":
"'GAAP' means generally accepted accounting
principals consistently applied."
(i) Appendix A of the Agreement is hereby amended to add the
following definition, immediately following the definition of "Commercial Paper
Notes" and immediately preceding the definition of "Contract":
"'Consolidated EBITDA' means, for any period,
consolidated net income for such period (adjusted
to exclude all extraordinary items and non-
recurring items), plus, without duplication and to
the extent deducted from revenues in determining
consolidated net income, the sum of (a) the
aggregate amount of consolidated interest expense
for such period (including, without limitation,
earned discounts, Program Fees and Liquidity Fees
payable by the Seller), (b) the aggregate amount
of income tax expense for such period and (c) all
amounts attributable to depreciation and
amortization for such period, all as determined on
a consolidated basis in accordance with GAAP.
SECTION 2. CONDITIONS PRECEDENT. This Amendment shall become
effective upon the satisfaction of the following conditions precedent:
(a) The Agent shall have received:
(i) eight fully executed copies of (A) this Amendment, (B)
Amendment No. 5 to the Liquidity Agreement, (C) the letter agreement
amending the Fee Agreement, in the form of Exhibit A attached hereto,
(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, and (E) the fee letter with regard to the amendment
fee to be paid to the Deal Agent on the date hereof, in the form of
Exhibit C attached hereto (the "Amendment Fee Letter"); 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;
(c) The Purchaser shall have obtained confirmation from each of the
three rating agencies rating the Commercial Paper Notes that the amendments
herein and the amendments to the Liquidity Agreement of even date herewith
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, the
Amendment Fee described in the Amendment Fee Letter, and any other fees and
expenses owing under Section 14.05 of the Agreement or any other agreement
between the parties thereto shall have been paid in full; and
(e) The conditions precedent to the effectiveness of that certain
Amendment No. 4 to the Liquidity Agreement of even date herewith shall have been
fully satisfied.
SECTION 3. 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 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.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
[Amendment No. 7 Signature Page]
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
[Amendment No. 7 Signature
Page]
Acknowledged and agreed to
as of this 12th day of July, 1999 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