Exhibit 10(n)
AMENDMENT NO. 12
TO
RECEIVABLES PURCHASE AGREEMENT AND AMENDMENT TO OTHER DOCUMENTS
THIS AMENDMENT NO. 12 TO RECEIVABLES PURCHASE AGREEMENT AND AMENDMENT
TO OTHER DOCUMENTS (the "Amendment") dated as of May 26, 2000 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., a Delaware corporation (the "Parent"), UPAC OF CALIFORNIA, INC., a
California corporation ("UPAC California"), OXFORD PREMIUM FINANCE, INC., an
Illinois corporation ("Oxford"), AGENCY PREMIUM RESOURCE, INC., a Kansas
corporation ("APR"), AUTOBAHN FUNDING COMPANY LLC, a Delaware limited liability
company ("Purchaser"), and DG BANK DEUTSCHE GENOSSENSCHAFTSBANK AG (as "Agent"
and in its individual capacity ("DG Bank")). 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, EagleFunding
Capital Corporation, a Delaware corporation ("EagleFunding") and Fleet National
Bank, a national banking association, in its individual capacity ("Fleet") and
as "Agent" (in such capacity, the "Former Agent") have entered into that certain
Receivables Purchase Agreement dated as of December 31, 1996 (as the same has
been amended, restated, supplemented or otherwise modified from time to time
through the date hereof, the "Agreement"); and
WHEREAS, pursuant to that certain Assignment and Assumption Agreement
of even date herewith among the Purchaser, DG Bank, the Agent, EagleFunding,
Fleet, the Former Agent, Fleet National Bank in its capacity as Custodian under
the Custody Agreement and Fleet National Bank in its capacity as Backup Servicer
under the Backup Servicing Agreement, as of the "Effective Date", as defined
therein, (i) EagleFunding has assigned all of its rights under the Agreement,
and Purchaser has assumed all of the obligations of EagleFunding under the
Agreement, and (ii) Fleet and the Former Agent have assigned all of their rights
under the Agreement to DG Bank and the Agent, respectively, and DG Bank and the
Agent have respectively assumed all of the obligations of Fleet and the Former
Agent under the Agreement, and
WHEREAS, the parties hereto have agreed to modify certain terms and
provisions of the Transaction Documents and the Subordinated Notes 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, the Schedules thereto and the Exhibits thereto are
hereby amended, such that together with Amendment Nos. 1-11 to the Agreement,
the Agreement, the Schedules thereto and the Exhibits thereto are in the form
attached as Exhibit A.
SECTION 2. AMENDMENTS TO TRANSACTION DOCUMENTS AND SUBORDINATED NOTES.
Effective as of the first date on which each of the conditions set forth in
Section 4 hereof shall have been satisfied (the "Effective Date"), the documents
described below shall be amended as follows:
(a) All references in the Purchase and Sale Agreement and the
Subordinated Notes (such documents together with the Agreement being
collectively referred to hereinafter as the "Receivables Documents" and
sometimes individually as a "Receivables Document") to (i) Purchaser or
EagleFunding Capital Corporation shall mean Autobahn Funding Company LLC, a
Delaware limited liability company, (ii) the Agent shall mean DG Bank Deutsche
Genossenschaftsbank AG, in its capacity as Agent, (iii) to BankBoston, N.A. or
Fleet National Bank in its individual capacity shall mean, DG Bank Deutsche
Genossenschaftsbank AG in its individual capacity, (iv) the Custodian shall mean
Iron Mountain Incorporated, and (v) the Backup Servicer shall mean Input 1, LLC,
a California limited liability company.
(b) The Purchase and Sale Agreement is amended to remove APR as a
party thereto and to eliminate any right of Oxford to sell Contracts, Related
Receivables and Originator Collateral to Funding; it being understood that
Oxford shall remain liable pursuant to the terms of the Purchase and Sale
Agreement with respect to any "Originator Purchases" (as defined in the Purchase
and Sale Agreement) to which Oxford was a party prior to the Effective Date and
upon the indefeasible payment in full by Oxford of all of its obligations with
respect to the Pool Receivables originated by Oxford, Oxford shall,
automatically on such date without further action by any party hereto, be
removed as a party to the Purchase and Sale Agreement.
(c) Section 1.2(f) of the Purchase and Sale Agreement is amended to
delete the delete the words "-LR" and to delete the words "LR = 'Loss Reserve
Discount' which means the loss reserves established in respect of such Contract
and related Receivable on the books of the relevant selling Originator".
(d) Section 1.5 of the Purchase and Sale Agreement is amended to add
the following clause to the penultimate sentence of such Section:";provided,
however, that such Originator shall have no liability to Funding for any such
credits, deductions, allowances or other reductions that result directly from
any action or omission of Funding, the Purchaser or the Agent".
(e) Section 1.6(o) of the Purchase and Sale Agreement is amended to
add the following clause to the second line thereof immediately preceding the
semicolon and the proviso: "other than directly as a result of (i) any action or
omission of Funding, the Purchaser or the Agent exclusive of any such action or
omission relating to the failure of the Purchaser or the Agent to be licensed as
a premium finance loan company or (ii) any change after the date of the
Originator Purchase thereof in applicable laws or regulations,".
(f) Section 1.6(p) of the Purchase and Sale Agreement is amended to
add the following clause in the first line thereof immediately after the term
"Purchaser,": "other than directly as a result of (A) any action or omission of
Funding, the Purchaser or the Agent exclusive of any such action or omission
relating to the failure of the Purchaser or the Agent to be licensed as a
premium finance loan company or (B) any change after the date of the Originator
Purchase thereof in applicable laws or regulations,".
(g) Section 4.1(k) of the Purchase and Sale Agreement is amended to
delete the words "and shall have continued to have maintained" in the sixth line
thereof.
(h) Section 5.1 (h) of the Purchase and Sale Agreement is amended to
add the following introductory clause: "To the extent that such Originator acts
as the Servicer or in the event that notwithstanding the payment instructions
given to the Obligors, a payment with respect to a Receivable subject to an
Originator Purchase is made to such Originator,".
(i) Section 5.1 (i) of the Purchase and Sale Agreement is amended and
restated in its entirety to read as follows: "With regard to any Receivable
originated by such Originator, to the extent that such Originator acts as the
Servicer or prior to the date of the Originator Purchase with respect to such
Receivable, cancel the related insurance policy in accordance with its
applicable Credit and Collection Policy, unless non-cancellation thereof will
not materially and adversely impact such Receivable or the Receivables Pool
taken as a whole.
(j) Section 5.1(k)(y) of the Purchase and Sale Agreement is amended
to add the words "Funding and Purchaser" after the term "Originator".
(k) Section 8.4(a)(iv) of the Purchase and Sale Agreement is amended
to delete the words "and maintain vested in Purchaser".
(l) Section 8.4(a)(v) of the Purchase and Sale Agreement is amended
to add the following introductory clause: "to the extent necessary to transfer
the Originator Eligible Receivables to Funding,".
(m) Section 8.4(a)(vi) of the Purchase and Sale Agreement is amended
to add the following clause to the end of such Section:", other than any such
dispute, claim, offset or defense directly resulting from any action or omission
of Funding, the Purchaser or the Agent,".
(n) Section 8.4(a)(viii) of the Purchase and Sale Agreement is
amended to add the following clause at the end of such Section: "other than
directly as a result of any action or omission of Funding, the Purchaser or the
Agent".
(o) Section 8.4(a)(x) of the Purchase and Sale Agreement is amended
and restated in its entirety to read as follows: "(x)(A) any proceeding,
investigation or inquiry which does or could result in an Adverse Determination,
(B) any Adverse Determination, other than in the case of both clauses (A) and
(B), directly as a result of (1) any action or omission of Funding, the
Purchaser or the Agent exclusive of any such action or omission relating to the
failure of the Purchaser or the Agent to be licensed as a premium finance loan
company or (2) any change after the date of the Originator Purchase thereof in
applicable laws or regulations, or (C) the failure by such Originator to vest in
Funding a valid and first priority security interest in any and all unearned
premium related to each Receivable originated by such Originator."
(p) Section 8.4(a)(xii) of the Purchase and Sale Agreement is amended
to add the following clause thereto at the end thereof: "to the extent that such
Originator acts as the Servicer or such cancellation should have been made on or
prior to the date of the Originator Purchase with respect to the related
Receivable".
(q) Section 8.4(a)(xiii) of the Purchase and Sale Agreement is
amended to add the following clause thereto at the end thereof: "other than any
Purchase and Sale Event specified in Section 7.2(a) or solely as it relates to
Funding, any Purchase and Sale Event specified in Section 7.2(e)".
(r) All notice addresses for the Agent or BankBoston, N.A. or Fleet
National Bank in their individual capacities in any of the Receivable Documents
shall be replaced by the following notice address:
DG Bank Deutsche Genossenschaftsbank AG
000 Xxxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxx
Facsimile No.: 000-000-0000
Telephone No.: 000-000-0000
(s) All notice addresses for the Purchaser in any of the Receivables
Documents shall be replaced by the following notice address
Autobahn Funding Company LLC
c/o Lord Securities Corporation
Two Wall Street, 19th Floor
New York, New York 10017
Attention: Xxxxx Xxxxxxx
Facsimile No.: 000-000-0000
Telephone No.: 000-000-0000
SECTION 3. REAFFIRMATION OF DOCUMENTS AND REPRESENTATIONS AND
WARRANTIES. Each of the Originators, UPAC, the Seller and the Servicer (i)
ratifies and reaffirms all of its obligations under the Receivables Documents to
which it is a party, and (ii) remakes as of the Effective Date each of its
representations and warranties contained in the Receivables Documents to which
it is a party and confirms that each such representation and warranty is true
and correct as of the Effective Date. Each of the Seller and the Servicer
confirms that Purchaser's Total Investment as of the Effective Date is
$68,000,000 and that as of the Effective Date neither the Seller nor the
Servicer has any defense or claim against any of Purchaser, the Agent, DG Bank,
EagleFunding Capital Corporation, the Former Agent, or Fleet National Bank, in
any way relating to or arising from any of the Receivables Documents to which it
is a party other than the periodic payments to be made to the Seller and the
Servicer pursuant to Article III of the Agreement.
SECTION 4. 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) the
Liquidity Purchase Agreement of even date herewith among the Purchaser, the
financial institutions from time to time party thereto as liquidity
providers and DG Bank Deutsche Genossenschaftsbank AG, as the Liquidity
Agent (the "Liquidity Purchase Agreement"), and (C) the Fee Letter; and
(ii) the other documents listed on the List of Closing Documents
attached as Exhibit C hereto.
(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) All of the fees and expenses referred to in Section 9 below, the
fees described in the Fee Letter that are due and payable on or prior to the
Effective Date, 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.
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 any of the Receivables
Documents amended hereby to such Receivables Document shall mean and be, and
references to shall mean and be, a reference to the such Receivables Document as
previously amended and as amended hereby. Except as otherwise amended by this
Amendment, each Receivables Document 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. 12 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: /s/ Xxxx Xxxxxxx
Title:President
UNIVERSAL PREMIUM ACCEPTANCE CORPORATION,
individually, as initial Servicer and as an
Originator
By: /s/ Xxxx Xxxxxxx
Title:President
UPAC OF CALIFORNIA, INC., as an Originator
By: /s/ Xxxx Xxxxxxx
Title:President
OXFORD PREMIUM FINANCE, INC., as an
Originator
By: /s/ Xxxx Xxxxxxx
Title:President
AGENCY PREMIUM RESOURCE, INC.
By: /s/ Xxxx Xxxxxxx
Title:President
TRANSFINANCIAL HOLDINGS, INC., as Parent
By: /s/ Xxxxxxx X. X'Xxxx
Title:President
AUTOBAHN FUNDING COMPANY, LLC,
as Purchaser
By: DG Bank Deutsche Genossenschaftsbank
AG, as its attorney-in-fact
By:
Title:
DG BANK DEUTSCHE
GENOSSENSCHAFTSBANK AG, individually and
as Agent
By:
Title:
[Amendment No. 12 Signature Page]
[Acknowledged and agreed to
as of this 26th day of May, 2000 in
accordance with Section 6.03 of that
certain Liquidity Purchase Agreement dated as of
May 26, 2000, as amended, among the
Purchaser, the financial institutions from
time to time parties thereto as liquidity providers,
and DG Bank Deutsche Genossenschaftsbank AG as liquidity agent
DG BANK DEUTSCHE GENOSSENSCHAFTSBANK AG, as a Liquidity Provider
By
Title
, as a Liquidity Provider
By
Title
CHICAGO4 1115832v4
