EXECUTION COPY
_______________________________________________________________________________
RECEIVABLES PURCHASE AGREEMENT AND ASSIGNMENT
between
OLYMPIC RECEIVABLES FINANCE CORP.
Purchaser
and
OLYMPIC FINANCIAL LTD.
Seller
dated as of
December 3, 1996
_______________________________________________________________________________
TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS
SECTION 1.1. General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.2. Specific Terms. . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.3. Usage of Terms. . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 1.4. Certain References. . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 1.5. No Recourse . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 1.6. Action by or Consent of Holders . . . . . . . . . . . . . . . . . . 7
SECTION 1.7. Material Adverse Effect . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE II
CONVEYANCE OF THE RECEIVABLES
AND THE OTHER CONVEYED PROPERTY
SECTION 2.1. Purchase Price. . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 2.2. Conveyance of Receivables . . . . . . . . . . . . . . . . . . . . . 8
SECTION 2.3. Delivery of Receivable Files. . . . . . . . . . . . . . . . . . . . 9
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. Representations and Warranties of OFL . . . . . . . . . . . . . . . 10
SECTION 3.2. Representations and Warranties of ORFC. . . . . . . . . . . . . . . 12
ARTICLE IV
COVENANTS OF OFL
SECTION 4.1. Protection of Title of ORFC.. . . . . . . . . . . . . . . . . . . . 14
SECTION 4.2. Other Liens or Interests. . . . . . . . . . . . . . . . . . . . . . 16
SECTION 4.3. Costs and Expenses. . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 4.4. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE V
REPURCHASES
SECTION 5.1. Repurchase of Receivables Upon Breach of
Warranty. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 5.2. Reassignment of Purchased Receivables . . . . . . . . . . . . . . . 19
SECTION 5.3. Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
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ARTICLE VI
MISCELLANEOUS
SECTION 6.1. Liability of OFL. . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 6.2. Merger or Consolidation of OFL or ORFC. . . . . . . . . . . . . . . 20
SECTION 6.3. Limitation on Liability of OFL and Others . . . . . . . . . . . . . 21
SECTION 6.4. Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 6.5. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 6.6. Merger and Integration. . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 6.7. Severability of Provisions. . . . . . . . . . . . . . . . . . . . . 22
SECTION 6.8. Intention of the Parties. . . . . . . . . . . . . . . . . . . . . . 22
SECTION 6.9. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 6.10. Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 6.11. Conveyance of the Receivables and the Other Conveyed Property to
an Assignee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 6.12. Nonpetition Covenant. . . . . . . . . . . . . . . . . . . . . . . . 23
SCHEDULE
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SCHEDULE A SCHEDULE OF RECEIVABLES
SCHEDULE B REPRESENTATIONS AND WARRANTIES OF SELLER
EXHIBIT
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EXHIBIT A FORM OF ASSIGNMENT AGREEMENT
RECEIVABLES PURCHASE AGREEMENT AND ASSIGNMENT
THIS RECEIVABLES PURCHASE AGREEMENT AND ASSIGNMENT, dated as of
December 3, 1996, executed between Olympic Receivables Finance Corp., a Delaware
corporation, as purchaser ("ORFC"), and Olympic Financial Ltd., a Minnesota
corporation, as seller ("OFL").
W I T N E S S E T H :
WHEREAS, ORFC has agreed from time to time to purchase from OFL and
OFL, pursuant to this Agreement, has agreed from time to time to sell and assign
to ORFC the Receivables and Other Conveyed Property.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements hereinafter contained, and for other good and valuable consideration,
the receipt of which is hereby acknowledged, ORFC and OFL, intending to be
legally bound, hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. GENERAL. The specific terms defined in this Article
include the plural as well as the singular. The words, "herein," "hereof" and
"hereunder" and other words of similar import refer to this Agreement as a whole
and not to any particular Article, Section or other subdivision, and Article,
Section, Schedule and Exhibit references, unless otherwise specified, refer to
Articles and Sections of and Schedules and Exhibits to this Agreement.
SECTION 1.2. SPECIFIC TERMS. Whenever used in this Agreement, the
following words and phrases, unless the context otherwise requires, shall have
the following meanings:
"ACCOUNTING DATE" means with respect to any Receivables the date
specified, if applicable, in the related Servicing Agreement.
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"AFFILIATE" means, with respect to any Person, any other Person
directly or indirectly controlling, controlled by, or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person, means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"AGREEMENT" shall mean this Receivables Purchase Agreement and
Assignment and all amendments hereof and supplements hereto.
"AMOUNT FINANCED" has the meaning specified, with respect to any
Receivable, in the related Servicing Agreement.
"ASSIGNEE" means, collectively, each Person specified in the relevant
Securitization Document or Warehousing Document to whom ORFC assigns or
otherwise transfers specified Receivables and the related Other Conveyed
Property.
"ASSIGNMENT AGREEMENT" means, with respect to any Receivables, the
assignment agreement between OFL and ORFC pursuant to which OFL sells and
assigns Receivables to ORFC, the form of which is attached hereto as Exhibit A.
"ASSIGNMENT DATE" means any date on which Receivables are sold and
assigned to ORFC pursuant to Section 2.2.
"BACKUP SERVICER" means, if applicable, any backup servicer or its
successor in interest, or such Person as shall have been appointed as Backup
Servicer or successor Servicer pursuant to any Servicing Agreement.
"BUSINESS DAY" means any day other than a Saturday, Sunday, legal
holiday or other day on which commercial banking institutions in Minneapolis,
Minnesota, New York, New York or any other location of any successor Servicer,
any Trustee or Collateral Agent are obligated by law, executive order or
governmental decree to be closed.
"CLOSING DATE" means December 3, 1996.
"COLLECTION ACCOUNT" has the meaning specified, with respect to any
Receivable, in the related Servicing Agreement.
"COLLATERAL AGENT" has the meaning specified, if applicable, in any
Servicing Agreement.
"COMPUTER TAPE" means the computer tape generated on behalf of ORFC
that provides information relating to Receivables and that was used by OFL
and ORFC in selecting the Receivables conveyed hereunder and under any
Related Document.
"CRAM DOWN LOSS" means, with respect to a Receivable, if a court of
appropriate jurisdiction in an insolvency proceeding shall have issued an
order reducing the Principal Balance of such Receivable, the amount of such
reduction. A "Cram Down Loss" shall be deemed to have occurred on the date of
issuance of such order.
"CUSTODIAN" means, collectively, each Custodian specified in a
Servicing Agreement or other Related Document.
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"CUT-OFF DATE" means, with respect to any Receivables, the date
specified in the related Warehousing Documents or Securitization Documents.
"DEALER" means a seller of new or used automobiles or light trucks
that originated one or more of the Receivables and sold the respective
Receivable, directly or indirectly, to OFL under an existing agreement between
such seller and OFL.
"DEALER AGREEMENT" means an agreement between OFL and a Dealer
relating to the sale of retail installment sales contracts and installment notes
to OFL and all documents and instruments relating thereto.
"DEALER ASSIGNMENT" means, with respect to a Receivable, the executed
assignment executed by a Dealer conveying such Receivable to OFL.
"DEPOSIT DATE" means that date specified, with respect to a
Receivable, in the related Servicing Agreement.
"FINANCED VEHICLE" means a new or used automobile or light truck,
together with all accessories thereto, securing or purporting to secure an
Obligor's indebtedness under a Receivable.
"FORCE-PLACED INSURANCE" means insurance that the Servicer may, if an
Obligor fails to obtain or maintain a comprehensive and collision insurance
policy, obtain with respect to the related Financed Vehicle.
"HOLDERS" means any "Holder" of a Security as defined in any
applicable Related Document.
"INSURANCE AGREEMENT" means collectively, each insurance agreement
dated as of a date on or after the date hereof, executed and delivered by among
others, a Security Insurer, an Assignee, ORFC and OFL.
"INSURANCE POLICY" means, with respect to a Receivable, any insurance
policy benefiting the holder of the Receivable providing loss or physical
damage, credit life, credit disability, theft, mechanical breakdown or similar
coverage with respect to the Financed Vehicle or the Obligor.
"INSURER DEFAULT" with respect to any Security Insurer has the meaning
specified in any Servicing Agreement(s) covering Receivables backing a Security
insured by such Security Insurer.
"LIEN" means any security interest, lien, charge, pledge, preference,
equity or encumbrance of any kind, including tax liens, mechanics' liens and any
liens that attach by operation of law.
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"LIEN CERTIFICATE" means, with respect to a Financed Vehicle, an
original certificate of title, certificate of lien or other notification issued
by the Registrar of Titles of the applicable state to a secured party which
indicates that the lien of the secured party on the Financed Vehicle is recorded
on the original certificate of title. In any jurisdiction in which the original
certificate of title is required to be given to the Obligor, the term "Lien
Certificate" shall mean only a certificate or notification issued to a secured
party.
"LIQUIDATED RECEIVABLE" has the meaning specified, with respect to a
Receivable, in the related Servicing Agreement.
"LIQUIDATION PROCEEDS" means, with respect to a Liquidated Receivable,
all amounts realized with respect to such Receivable (other than amounts
withdrawn from a spread account or other like account and drawings under a
Security Policy) net of (i) reasonable expenses incurred by the Servicer in
connection with the collection of such Receivable and the repossession and
disposition of the Financed Vehicle and (ii) amounts that are required to be
refunded to the Obligor on such Receivable; PROVIDED, HOWEVER, that the
Liquidation Proceeds with respect to any Receivable shall in no event be less
than zero.
"OBLIGOR" means the purchaser or the co-purchasers of the Financed
Vehicle and any other Person or Persons who are primarily or secondarily
obligated to make payments under a Receivable.
"OTHER CONVEYED PROPERTY" means all monies at any time paid or payable
on the Receivables or in respect thereof after the applicable Cut-Off Date
(including amounts due on or before the applicable Cut-Off Date but received by
OFL after such Cut-Off Date), the security interests of OFL in the Financed
Vehicles, the Insurance Policies and any proceeds from any Insurance Policies
relating to the Receivables, the Obligors or the Financed Vehicles, including
rebates of premiums, and any Force-Placed Insurance relating to the Receivables,
rights of OFL against Dealers with respect to the Receivables under the Dealer
Agreements and the Dealer Assignments, all items contained in the Receivable
Files, any and all other documents or electronic records that OFL keeps on file
in accordance with its customary procedures relating to the Receivables, the
Obligors or the Financed Vehicles, property (including the right to receive
future Liquidation Proceeds) that secures a Receivable and that has been
acquired by or on behalf of OFL pursuant to liquidation of such Receivable, all
present and future claims, demands, causes and choses in action in respect of
the Receivables and any or all of the foregoing and all payments on or under and
all proceeds of every kind and nature whatsoever in respect of the Receivables
and any and all of the foregoing, including all proceeds of the conversion,
voluntary or involuntary, into cash or other liquid property, all cash proceeds,
accounts, accounts receivables, notes, drafts, acceptances, chattel paper,
checks, deposit accounts, insurance proceeds, condemnation awards, rights
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to payment of any and every kind and other forms of obligations and
receivables, instruments and other property which at any time constitute all
or part of or are included in the proceeds of the Receivables and any of the
foregoing.
"PERSON" means any legal person, including any individual,
corporation, partnership, joint venture, estate, association, joint stock
company, trust, unincorporated organization or government or any agency or
political subdivision thereof, or any other entity.
"PRINCIPAL BALANCE" means, with respect to any Receivable, as of any
date, the Amount Financed minus (i) that portion of all amounts received on or
prior to such date and allocable to principal in accordance with the terms of
the Receivable, and (ii) any Cram Down Loss in respect of such Receivable.
"PURCHASE AMOUNT" with respect to a Receivable has the meaning
specified, if applicable, in the Servicing Agreement related to such Receivable.
"PURCHASED RECEIVABLE" has the meaning specified, if applicable, in
the related Servicing Agreement.
"RATING AGENCY" means any nationally recognized statistical rating
organization selected by OFL or ORFC to rate any of the Securities or that
determines a capital charge with respect to the issuance of a Security Policy by
a Security Insurer or any other party specified as such in the Servicing
Agreement or other Related Document.
"RECEIVABLE" means a retail installment sales contract or promissory
note (and related security agreement) for a new or used automobile or light
truck (and all accessories thereto) that is included in the Schedule of
Receivables, and all rights and obligations under such a contract.
"RECEIVABLE FILES" means the documents, electronic entries,
instruments and writings with respect to a Receivable required to be transferred
to, and held by, the Custodian pursuant to a Warehousing Document or
Securitization Document relating to such Receivable.
"REGISTRAR OF TITLES" means, with respect to any state, the
governmental agency or body responsible for the registration of, and the
issuance of certificates of title relating to, motor vehicles and liens thereon.
"RELATED DOCUMENTS" has the meaning specified in each Servicing
Agreement. The Related Documents to be executed by any party are referred to
herein as "such party's Related Documents," "its Related Documents" or by a
similar expression.
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"REPURCHASE DATE" means the date specified, if applicable, in the
relevant Warehousing Document.
"REPURCHASE EVENT" means the occurrence of a breach of any of OFL's
representations and warranties contained in Section 3.1(a) hereof that
materially and adversely affects the interests of ORFC or any assignee in the
related Receivables or any other event which requires the repurchase of a
Receivable by OFL under a Servicing Agreement or this Agreement.
"REPURCHASED RECEIVABLES" has the meaning specified, if applicable, in
the relevant Warehousing Document.
"SCHEDULE OF RECEIVABLES" means the schedule of all automobile retail
installment loan contracts and promissory notes sold and transferred pursuant to
this Agreement which is attached hereto as Schedule A, as such Schedule shall be
supplemented from time to time (a) by each Schedule of Receivables with respect
to each Assignment Agreement, which Schedules of Receivables shall be deemed
incorporated and made a part of Schedule A hereto and (b) to reflect the
repurchase from ORFC of Receivables repurchased by OFL hereunder or purchased by
a Servicer under any Servicing Agreement. OFL shall maintain a Master Schedule
A reflecting all such sales, transfers , repurchases and purchases. With
respect to an Assignment Agreement, "Schedule of Receivables" shall mean the
Schedule attached to such Assignment Agreement as Exhibit A thereto.
"SCHEDULE OF REPRESENTATIONS" means the Schedule of Representations
and Warranties attached hereto as Schedule B.
"SECURITIZATION DOCUMENT" means each Servicing Agreement and Related
Document related to a transfer of Receivables in connection with the public sale
or private placement of term securities backed by such Receivables.
"SECURITY" means any note, certificate or other security backed by
Receivables that is issued pursuant to a Warehousing Document or a
Securitization Document.
"SECURITY INSURER" means each financial guaranty insurance company
issuing a Security Policy, as specified in any Servicing Agreement.
"SECURITY POLICY" means any "Note Policy," "Certificate Policy" or
other policy of financial guaranty insurance with respect to a Security defined
as such in the relevant Servicing Agreement.
"SERVICER" means OFL and any successor in interest, as applicable,
pursuant to the related Servicing Agreement.
"SERVICING AGREEMENT" means, collectively, each servicing agreement or
sale and servicing agreement dated as of a
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date on or after the date hereof relating to the Receivables assigned
hereunder.
"TRUSTEE" means any indenture trustee, owner trustee or other trustee
specified as such in a Securitization Document or Warehousing Document.
"UCC" means The Uniform Commercial Code as in effect in the relevant
jurisdiction.
"WAREHOUSING DOCUMENT" means each Servicing Agreement and Related
Document related to a transfer of Receivables in connection with a warehousing
facility for the financing of such Receivables in anticipation of the later
repurchase, sale or term resecuritization of such Receivables.
SECTION 1.3. USAGE OF TERMS. With respect to all terms used in this
Agreement, the singular includes the plural and the plural the singular; words
importing any gender include the other gender; references to "writing" include
printing, typing, lithography, and other means of reproducing words in a visible
form; references to agreements and other contractual instruments include all
subsequent amendments thereto or changes therein entered into in accordance with
their respective terms and not prohibited by this Agreement, a Warehousing
Document or a Securitization Document or a Servicing Agreement; references to
Persons include their permitted successors and assigns; and the terms "include"
or "including" mean "include without limitation" or "including without
limitation."
SECTION 1.4. CERTAIN REFERENCES. All references to the Principal
Balance of a Receivable as of an Accounting Date shall refer to the close of
business on such day, or as of the first day of a calendar month shall refer to
the opening of business on such day. All references to the last day of a
calendar month shall refer to the close of business on such day.
SECTION 1.5. NO RECOURSE. Without limiting the obligations of OFL
hereunder, no recourse may be taken, directly or indirectly, under this
Agreement or any certificate or other writing delivered in connection herewith
or therewith, against any stockholder, officer or director, as such, of OFL, or
any stockholder, officer or director, as such, of any predecessor or successor
of OFL.
SECTION 1.6. ACTION BY OR CONSENT OF HOLDERS. Whenever any provision
of this Agreement refers to action to be taken, or consented to, by Holders,
such provision shall be deemed to refer to Holders of record as of the
applicable record date immediately preceding the date on which such action is to
be taken, or consent given, by Holders. Solely for the purposes of any action
to be taken, or consented to, by Holders, any Security registered in the name of
ORFC, OFL or any Affiliate thereof shall be deemed not to be outstanding and the
principal amount evidenced thereby shall not be taken into account in
determining
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whether the requisite principal amount necessary to effect any such action or
consent has been obtained; PROVIDED, HOWEVER, that solely for the purpose of
determining whether a Trustee is entitled to rely upon any such action or
consent, only Securities which the related Trustee knows to be so owned shall
be so disregarded.
SECTION 1.7. MATERIAL ADVERSE EFFECT. Whenever a determination is to
be made under this Agreement as to whether a given event, action, course of
conduct or set of facts or circumstances could or would have a material adverse
effect on any Securities and the interests of the Holders therein (or any
similar or analogous determination), such determination shall be made without
taking into account the funds available from claims under any Security Policy or
withdrawals from any reserve accounts.
ARTICLE II
CONVEYANCE OF THE RECEIVABLES
AND THE OTHER CONVEYED PROPERTY
SECTION 2.1. PURCHASE PRICE. In consideration of the conveyance
of the Receivables and the related Other Conveyed Property to ORFC on each
Assignment Date, ORFC shall pay or cause to be paid to OFL an amount equal to
the product of (x) the outstanding Principal Balance of each Receivable and
(y) 100%. Such amount shall be paid to OFL, by wire transfer of immediately
available funds on the date of such conveyance, to the extent of the net
proceeds received by ORFC upon its contemporaneous conveyance of such
Receivables to an Assignee pursuant to a Warehousing Document or
Securitization Document. The balance shall be payable (a) with respect to
any Receivable transferred pursuant to a Warehousing Document, upon the
subsequent transfer of such Receivable pursuant to a Securitization Document,
to the extent the net proceeds received by ORFC upon such subsequent transfer
exceeds the amount paid by ORFC to effect the retransfer of such Receivable
to ORFC pursuant to such Warehousing Document, and (b) with respect to any
Receivable transferred pursuant to a Securitization Document, within ninety
days after such transfer.
SECTION 2.2. CONVEYANCE OF RECEIVABLES.
(a) Subject to the conditions set forth in paragraph (b) below,
OFL, pursuant to the mutually agreed upon terms contained herein and pursuant
to one or more Assignment Agreements, shall sell, transfer, assign and
otherwise convey to ORFC without recourse (but without limitation of its
obligations in this Agreement or its obligations as Servicer under any
Servicing Agreement, all of the right, title and interest of OFL, whether
then existing or thereafter acquired, in and to all accounts, contract
rights, general intangibles, chattel paper, instruments, documents, money,
deposit accounts, certificates of deposit, goods, letters of credit, advices
of credit and
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uncertificated securities consisting of, arising from or relating to the
Receivables listed on the Schedule of Receivables and the related Other
Conveyed Property. It is the intention of ORFC and OFL that the transfers
and assignments contemplated by this Agreement and each Assignment Agreement
shall constitute a sale of the Receivables and the Other Conveyed Property
from OFL to ORFC, conveying good title thereto free and clear of any Liens,
and the Receivables and Other Conveyed Property shall not be a part of OFL's
estate in the event of the filing of a bankruptcy petition by or against OFL
under any bankruptcy or similar law.
(b) OFL shall transfer to ORFC the Receivables and the related Other
Conveyed Property as described in paragraph (a) above only upon the satisfaction
of each of the following conditions on or prior to the related Assignment Date:
(i) OFL shall have delivered to ORFC and the related Assignee a duly
executed Assignment Agreement (including an acceptance by ORFC), which
shall include a Schedule of Receivables listing the Receivables being
transferred on such Assignment Date;
(ii) as of such Assignment Date, OFL shall not have been insolvent nor
shall OFL have been rendered insolvent by such sale and assignment nor
shall OFL be aware of any pending insolvency;
(iii) OFL shall have taken any action necessary or, if requested by
any Security Insurer, advisable, to obtain or maintain the first priority
perfected ownership interest of ORFC in the Receivables and Other Conveyed
Property; and
(iv) no selection procedures believed by OFL to be adverse to the
interests of ORFC, any Assignee or any Holders shall have been utilized by
OFL or ORFC in selecting the Receivables.
SECTION 2.3. DELIVERY OF RECEIVABLE FILES. OFL shall deliver to the
Custodian on each Assignment Date the following documents:
(i) The fully executed original of the Receivable (together with the
original of any agreements modifying the Receivable, including without
limitation any extension agreements);
(ii) A certificate of insurance, application form for insurance signed
by the Obligor or a signed representation letter from the Obligor named in
the Receivable pursuant to which the Obligor has agreed to obtain physical
damage insurance for the related Financed Vehicle, or a documented verbal
confirmation by the insurance agent for the Obligor of a policy number for
an insurance policy for the Financed Vehicle;
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(iii) The original credit application, or a copy thereof, of each
Obligor, on OFL's customary form, or on a form approved by OFL, for such
application; and
(iv) The original certificate of title (when received) and otherwise
such documents, if any, that OFL keeps on file in accordance with its
customary procedures indicating that the Financed Vehicle is owned by the
Obligor and subject to the interest of OFL as first lienholder or secured
party (including any Lien Certificate received by OFL), or if such original
certificate of title has not yet been received, a copy of the application
therefor, showing OFL as secured party, or a letter from the applicable
Dealer agreeing unconditionally to repurchase the related Receivable if the
certificate of title is not received by OFL within 180 days.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. REPRESENTATIONS AND WARRANTIES OF OFL. OFL makes the
following representations and warranties, on which ORFC relies in purchasing the
Receivables and the Other Conveyed Property. Such representations are made as
of the execution and delivery of this Agreement and on each Assignment Date, and
shall survive the sale, transfer and assignment of the Receivables and the Other
Conveyed Property under such Assignment Agreements, and the sale, transfer and
assignment thereof by ORFC under any Securitization Document or Warehousing
Document. OFL and ORFC agree that pursuant to the relevant Securitization
Document or Warehousing Document ORFC will assign to the relevant Assignee all
of ORFC's rights under this Agreement with respect to Receivables sold,
transferred or assigned pursuant to any Securitization Document or Warehousing
Document and not repurchased by ORFC, and the related Other Conveyed Party, and
that such Assignee will thereafter be entitled to enforce this Agreement against
OFL in such Assignee's own name.
(a) SCHEDULE OF REPRESENTATIONS. The representations and warranties
set forth on the Schedule of Representations are true and correct with
respect to each Receivable on the date it is sold by OFL to ORFC hereunder.
(b) ORGANIZATION AND GOOD STANDING. OFL has been duly organized and
is validly existing as a corporation in good standing under the laws of the
State of Minnesota, with power and authority to own its properties and to
conduct its business as such properties are currently owned and such
business is currently conducted, and had at all relevant times, and now
has, power, authority and legal right to acquire, own and sell the
Receivables and the Other Conveyed Property transferred to ORFC.
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(c) DUE QUALIFICATION. OFL is duly qualified to do business as a
foreign corporation in good standing, and has obtained all necessary
licenses and approvals, in all jurisdictions in which the ownership or
lease of its property or the conduct of its business requires such
qualification.
(d) POWER AND AUTHORITY. OFL has the power and authority to execute
and deliver this Agreement, each Assignment Agreement and its Related
Documents and to carry out its terms and their terms, respectively; OFL has
full power and authority to sell and assign the Receivables and the Other
Conveyed Property to be sold and assigned to and deposited with ORFC under
each Assignment Agreement and has duly authorized such sale and assignment
to ORFC by all necessary corporate action; and the execution, delivery and
performance of this Agreement, each Assignment Agreement and OFL's Related
Documents have been duly authorized by OFL by all necessary corporate
action.
(e) VALID SALE; BINDING OBLIGATIONS. This Agreement and each
Assignment Agreement have been duly executed and delivered and shall effect
a valid sale, transfer and assignment of the Receivables and the Other
Conveyed Property, enforceable against OFL and creditors of and purchasers
from OFL; and this Agreement, each Assignment Agreement and OFL's Related
Documents constitute legal, valid and binding obligations of OFL
enforceable in accordance with their respective terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization or
other similar laws affecting the enforcement of creditors' rights generally
and by general principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or at law.
(f) NO VIOLATION. The consummation of the transactions contemplated
by this Agreement, each Assignment Agreement and the Related Documents and
the fulfillment of the terms of this Agreement, each Assignment Agreement
and the Related Documents do not and shall not conflict with, result in any
breach of any of the terms and provisions of or constitute (with or without
notice, lapse of time or both) a default under, the articles of
incorporation or bylaws of OFL, or any indenture, agreement, mortgage, deed
of trust or other instrument to which OFL is a party or by which it or any
of its property is bound, or result in the creation or imposition of any
Lien upon any of OFL's properties pursuant to the terms of any such
indenture, agreement, mortgage, deed of trust or other instrument, other
than this Agreement and each Assignment Agreement, or violate any law,
order, rule or regulation applicable to OFL of any court or of any federal
or state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over OFL or any of its properties.
11
(g) NO PROCEEDINGS. There are no proceedings or investigations
pending or, to OFL's knowledge, threatened against OFL, before any court,
regulatory body, administrative agency or other tribunal or governmental
instrumentality having jurisdiction over OFL or its properties (i)
asserting the invalidity of this Agreement, any Assignment Agreement or any
of the Related Documents, (ii) seeking to prevent the issuance of any
Securities or the consummation of any of the transactions contemplated by
this Agreement, any Assignment Agreement or any of the Related Documents,
(iii) seeking any determination or ruling that might materially and
adversely affect the performance by OFL of its obligations under, or the
validity or enforceability of, this Agreement, any Assignment Agreement or
any of the Related Documents or (iv) seeking to affect adversely the
federal income tax or other federal, state or local tax attributes of, or
seeking to impose any excise, franchise, transfer or similar tax upon, the
transfer and acquisition of the Receivables and the Other Conveyed Property
hereunder, under any Assignment Agreement or under any of the Related
Documents.
(h) CHIEF EXECUTIVE OFFICE. The chief executive office of OFL is
located at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇-▇▇▇▇.
SECTION 3.2. REPRESENTATIONS AND WARRANTIES OF ORFC. ORFC makes the
following representations and warranties, on which OFL relies in selling,
assigning, transferring and conveying the Receivables and the Other Conveyed
Property to ORFC hereunder and under each Assignment Agreement. Such
representations are made as of the execution and delivery of this Agreement and
each Assignment Agreement, but shall survive the sale, transfer and assignment
of the Receivables and the Other Conveyed Property hereunder and under each
Assignment Agreement and the sale, transfer and assignment thereof by ORFC to an
Assignee pursuant to any Related Document.
(a) ORGANIZATION AND GOOD STANDING. ORFC has been duly organized
and is validly existing and in good standing as a corporation under the
laws of the State of Delaware, with the power and authority to own its
properties and to conduct its business as such properties are currently
owned and such business is currently conducted, and had at all relevant
times, and has, full power, authority and legal right to acquire and
own the Receivables and the Other Conveyed Property, and to transfer
the Receivables and the Other Conveyed Property to an Assignee pursuant
to any Related Document.
(b) DUE QUALIFICATION. ORFC is duly qualified to do business as a
foreign corporation in good standing, and has obtained all necessary
licenses and approvals in all jurisdictions where the failure to do so
would materially and adversely affect ORFC's ability to acquire the
12
Receivables or the Other Conveyed Property or the validity or
enforceability of the Receivables and the Other Conveyed Property or to
perform ORFC's obligations hereunder, under any Assignment Agreement and
under the Related Documents.
(c) POWER AND AUTHORITY. ORFC has the power, authority and legal
right to execute and deliver this Agreement and each Assignment Agreement
and to carry out the terms hereof and thereof and to acquire the
Receivables and the Other Conveyed Property hereunder; and the execution,
delivery and performance of this Agreement and each Assignment Agreement
and all of the documents required pursuant hereto and thereto have been
duly authorized by ORFC by all necessary action.
(d) NO CONSENT REQUIRED. ORFC is not required to obtain the consent
of any other Person, or any consent, license, approval or authorization or
registration or declaration with, any governmental authority, bureau or
agency in connection with the execution, delivery or performance of this
Agreement, each Assignment Agreement and the Related Documents, except for
such as have been obtained, effected or made.
(e) BINDING OBLIGATION. This Agreement and each Assignment Agreement
constitute legal, valid and binding obligations of ORFC, enforceable
against ORFC in accordance with their terms, subject, as to enforceability,
to applicable bankruptcy, insolvency, reorganization, conservatorship,
receivership, liquidation and other similar laws and to general equitable
principles.
(f) NO VIOLATION. The execution, delivery and performance by ORFC of
this Agreement and each Assignment Agreement, the consummation of the
transactions contemplated by this Agreement, each Assignment Agreement and
the Related Documents and the fulfillment of the terms of this Agreement,
each Assignment Agreement and the Related Documents do not and will not
conflict with, result in any breach of any of the terms and provisions of,
or constitute (with or without notice or lapse of time) a default under,
the certificate of incorporation or bylaws of ORFC, or conflict with or
breach any of the terms or provisions of, or constitute (with or without
notice or lapse of time) a default under, any indenture, agreement,
mortgage, deed of trust or other instrument to which ORFC is a party or by
which ORFC is bound or to which any of its properties are subject, or
result in the creation or imposition of any Lien upon any of its properties
pursuant to the terms of any such indenture, agreement, mortgage, deed of
trust or other instrument (other than with respect to Receivables and the
related Other Conveyed Property being transferred under a Related Document,
under such Related Document), or violate any law, order, rule or
regulation, applicable to ORFC or its properties, of any federal or state
regulatory body, any
13
court, administrative agency, or other governmental instrumentality
having jurisdiction over ORFC or any of its properties.
(g) NO PROCEEDINGS. There are no proceedings or investigations
pending, or, to the knowledge of ORFC, threatened against ORFC, before any
court, regulatory body, administrative agency, or other tribunal or
governmental instrumentality having jurisdiction over ORFC or its
properties: (i) asserting the invalidity of this Agreement, any Assignment
Agreement or any of the Related Documents, (ii) seeking to prevent the
consummation of any of the transactions contemplated by this Agreement, any
Assignment Agreement or any of the Related Documents, (iii) seeking any
determination or ruling that might materially and adversely affect the
performance by ORFC of its obligations under, or the validity or
enforceability of, this Agreement, any Assignment Agreement or any of the
Related Documents or (iv) that may adversely affect the federal or state
income tax attributes of, or seek to impose any excise, franchise, transfer
or similar tax upon, the transfer and acquisition of the Receivables and
the Other Conveyed Property hereunder or under any Assignment Agreement or
the transfer of the Receivables and the Other Conveyed Property to an
Assignee pursuant to any Related Document.
In the event of any breach of a representation and warranty made by ORFC
hereunder, OFL covenants and agrees that it will not take any action to pursue
any remedy that it may have hereunder, in law, in equity or otherwise, until a
year and a day have passed since the date on which all the Securities have been
paid in full. OFL and ORFC agree that damages will not be an adequate remedy
for such breach and that this covenant may be specifically enforced by ORFC or
by an Assignee under any Related Document.
ARTICLE IV
COVENANTS OF OFL
SECTION 4.1. PROTECTION OF TITLE OF ORFC.
(a) At or prior to the Closing Date, OFL shall have filed or caused
to be filed a UCC-1 financing statement, executed by OFL as seller or debtor,
naming ORFC as purchaser or secured party and describing the Receivables and
the Other Conveyed Property to be sold by OFL to ORFC as collateral, with the
office of the Secretary of State of the State of Minnesota and in such other
locations as ORFC shall have required. From time to time thereafter OFL
shall execute and file such financing statements and cause to be executed and
filed such continuation statements, all in such manner and in such places as
may be required by law fully to preserve, maintain and protect the interest
of ORFC under this Agreement and of each Assignee under any Securitization
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Document or Warehousing Document in the Receivables and the Other Conveyed
Property and in the proceeds thereof. OFL shall deliver (or cause to be
delivered) to ORFC and any party entitled thereto under any Securitization
Document or Warehousing Document file-stamped copies of, or filing receipts
for, any document filed as provided above, as soon as available following
such filing. In the event that OFL fails to perform its obligations under
this subsection, ORFC and any party entitled thereto under any Securitization
Document or Warehousing Document may do so, at the expense of OFL.
(b) Except for changing its name to Arcadia Financial Ltd., OFL
shall not change its name, identity, or corporate structure in any manner
that would, could or might make any financing statement or continuation
statement filed by OFL (or by ORFC or any party entitled to file a financing
statement under any Securitization Document or Warehousing Document on behalf
of OFL) in accordance with paragraph (a) above seriously misleading within
the meaning of Section 9-402(7) of the UCC, unless it shall have given ORFC
and any party entitled thereto under any Securitization Document or
Warehousing Document and each Security Insurer at least 60 days' prior
written notice thereof, and (including in connection with changing its name
to Arcadia Financial Ltd.) shall promptly file appropriate amendments to all
previously filed financing statements and continuation statements.
(c) OFL shall give ORFC, each Security Insurer (so long as an
Insurer Default with respect to such Security Insurer shall not have occurred
and be continuing) and any party entitled thereto under any Securitization
Document or Warehousing Document at least 60 days' prior written notice of
any relocation of its principal executive office if, as a result of such
relocation, the applicable provisions of the UCC would require the filing of
any amendment of any previously filed financing or continuation statement or
of any new financing statement. OFL shall at all times maintain each office
from which it services the Receivables and its principal executive office
within the United States of America.
(d) OFL shall maintain its computer systems so that, from and after
the time of any sale hereunder and under any Assignment Agreement of the
Receivables to ORFC and the conveyance under any Securitization Document or
Warehousing Document of the related Receivables by ORFC to an Assignee, OFL's
master computer records (including archives) that refer to any such
Receivable indicate clearly that such Receivable has been sold to ORFC and
has been conveyed by ORFC to such Assignee. Indication of such Assignee's
ownership of a Receivable shall be deleted from or modified on OFL's computer
systems when, and only when the Receivable shall have been paid in full or
shall have been repurchased by ORFC or OFL.
15
(e) If at any time OFL shall propose to sell, grant a security
interest in, or otherwise transfer any interest in motor vehicle receivables
to any prospective purchaser, lender or other transferee, OFL shall give to
such prospective purchaser, lender, or other transferee computer tapes,
records, or print-outs (including any restored from archives) that, if they
shall refer in any manner whatsoever to any Receivable, shall indicate
clearly that such Receivable has been sold to ORFC and is owned by the
relevant Assignee pursuant to the applicable Securitization Document or
Warehousing Document.
SECTION 4.2. OTHER LIENS OR INTERESTS. Except for the conveyances
under any Assignment Agreement, OFL will not sell, pledge, assign or transfer to
any other Person, or grant, create, incur, assume or suffer to exist any Lien on
the Receivables or the Other Conveyed Property or any interest therein, and OFL
shall defend the right, title, and interest of ORFC and each Assignee under any
Securitization Document or Warehousing Document in and to the Receivables and
the Other Conveyed Property against all claims of third parties claiming through
or under OFL.
SECTION 4.3. COSTS AND EXPENSES. OFL shall pay all reasonable costs
and disbursements in connection with the performance of its obligations
hereunder, under any Assignment Agreement and under its Related Documents.
SECTION 4.4. INDEMNIFICATION.
(a) OFL shall defend, indemnify and hold harmless ORFC, each
Assignee, each Backup Servicer, each Collateral Agent, each Trustee, each
Security Insurer and the Holders from and against any and all costs,
expenses, losses, damages, claims, and liabilities arising out of or
resulting from any breach of any of OFL's representations and warranties
contained herein.
(b) OFL shall defend, indemnify and hold harmless ORFC, each
Assignee, each Backup Servicer, each Collateral Agent, each Trustee, each
Security Insurer and the Holders from and against any and all costs,
expenses, losses, damages, claims, and liabilities, arising out of or
resulting from the use, ownership or operation by OFL or any Affiliate
thereof, other than ORFC and the Issuer, of a Financed Vehicle.
(c) OFL will defend and indemnify ORFC, each Assignee, each Backup
Servicer, each Collateral Agent, each Trustee, each Security Insurer and the
Holders against any and all costs, expenses, losses, damages, claims and
liabilities arising out of or resulting from any action taken, or failed to
be taken, by OFL in respect of any of the Receivables other than in
accordance with this Agreement or any Warehousing Document or Securitization
Document.
16
(d) OFL agrees to pay, and shall defend, indemnify and hold harmless
ORFC, each Assignee, each Backup Servicer, each Collateral Agent, each
Trustee, each Security Insurer and the Holders from and against any taxes
that may at any time be asserted against ORFC, any Assignee, any Backup
Servicer or any Holders with respect to the transactions contemplated in this
Agreement, including, without limitation, any sales, gross receipts, general
corporation, tangible or intangible personal property, privilege, or license
taxes (but not including any taxes asserted with respect to, and as of any
date of, the sale, transfer and assignment of any Receivables and Other
Conveyed Property to ORFC and of the sale, transfer and assignment of such
Receivables and Other Conveyed Property to an Assignee or the issuance and
sale of any Securities, or asserted with respect to ownership of the
Receivables and Other Conveyed Property which shall be indemnified by OFL
pursuant to clause (e) below, or federal, state or other income taxes,
arising out of distributions on the Securities or transfer taxes arising in
connection with the transfer of Securities) and costs and expenses in
defending against the same, arising by reason of the acts to be performed by
OFL under this Agreement or any Assignment Agreement or imposed against such
Persons.
(e) OFL agrees to pay, and to indemnify, defend and hold harmless
ORFC, each Assignee, each Backup Servicer, each Collateral Agent, each
Trustee, each Security Insurer and the Holders from, any taxes which may at
any time be asserted against such Persons with respect to, and as of the date
of, any conveyance or ownership of the Receivables or Other Conveyed Property
hereunder and under any Assignment Agreement or the issuance and sale of any
Securities, including, without limitation, any sales, gross receipts,
personal property, tangible or intangible personal property, privilege or
license taxes (but not including any federal or other income taxes, including
franchise taxes, arising out of the transactions contemplated hereby or
transfer taxes arising in connection with the transfer of the Securities) and
costs and expenses in defending against the same, arising by reason of the
acts to be performed by OFL under this Agreement or imposed against such
Persons.
(f) OFL shall defend, indemnify, and hold harmless ORFC, each
Assignee, each Backup Servicer, each Collateral Agent, each Trustee, each
Security Insurer and the Holders from and against any and all costs,
expenses, losses, claims, damages, and liabilities to the extent that such
cost, expense, loss, claim, damage, or liability arose out of, or was imposed
upon ORFC, any Assignee, any Backup Servicer and any Holders through the
negligence, willful misfeasance, or bad faith of OFL in the performance of
its duties under this Agreement or by reason of reckless disregard of OFL's
obligations and duties under this Agreement.
17
(g) OFL shall indemnify, defend and hold harmless ORFC, each
Assignee, each Backup Servicer, each Collateral Agent, each Trustee, each
Security Insurer and the Holders from and against any loss, liability or
expense imposed upon, or incurred by, ORFC, any Assignee, any Backup Servicer
or any Holders as a result of the failure of any Receivable, or the sale of
the related Financed Vehicle, to comply with all requirements of applicable
law.
(h) OFL shall defend, indemnify, and hold harmless ORFC from and
against all costs, expenses, losses, claims, damages, and liabilities arising
out of or incurred in connection with the acceptance or performance of OFL's
duties as Servicer under any Servicing Agreement, except to the extent that
such cost, expense, loss, claim, damage, or liability shall be due to the
willful misfeasance, bad faith, or negligence (except for errors in judgment)
of ORFC.
(i) OFL shall indemnify, defend and hold harmless ORFC, each
Assignee, each Security Insurer, each Backup Servicer and the Holders from
and against any loss, liability or expense imposed upon, or incurred by,
ORFC, any Assignee, any Backup Servicer, any Trustee or any Holders as a
result of OFL's or ORFC's use of the name "Olympic."
Indemnification under this Section 4.4 shall include reasonable
fees and expenses of counsel and expenses of litigation and shall survive
maturity of the related Securities. The indemnity obligations hereunder
shall be in addition to any obligation that OFL may otherwise have.
ARTICLE V
REPURCHASES
SECTION 5.1. REPURCHASE OF RECEIVABLES UPON BREACH OF WARRANTY. Upon
the occurrence of a Repurchase Event with respect to a Receivable, OFL shall,
unless such breach shall have been cured in all material respects, repurchase
such Receivable from ORFC or the applicable Assignee, as applicable, and on or
before the related Deposit Date (with respect to a Purchased Receivable) or the
related Repurchase Date (with respect to Repurchased Receivables), OFL shall
deposit the Purchase Amount into the Collection Account as payment to ORFC or
such Assignee pursuant to the relevant Servicing Agreement or other Related
Document. It is understood and agreed that, except as set forth in Section 6.1,
the obligation of OFL to repurchase any Receivable as to which a breach has
occurred and is continuing shall, if such obligation is fulfilled, constitute
the sole remedy against OFL for such breach available to ORFC, any Security
Insurer, any Collateral Agent, any such Assignee or any Trustee on behalf of its
Holders. The provisions of this Section 5.1 are intended to grant to any such
Assignee a direct right
18
against OFL to demand performance hereunder, and in connection therewith OFL
waives any requirement of prior demand against ORFC with respect to such
repurchase obligation. Any such purchase shall take place in the manner
specified in the related Servicing Agreement or other Related Document.
Notwithstanding any other provision of this Agreement or any Related Document
to the contrary, the obligation of OFL under this Section shall not terminate
upon a termination of OFL as Servicer under the related Servicing Agreement
and shall be performed in accordance with the terms hereof notwithstanding
the failure of the Servicer or ORFC to perform any of their respective
obligations with respect to such Receivable under such Servicing Agreement.
In addition to the foregoing and whether or not the related Receivable
shall have been purchased by OFL, OFL shall indemnify each such Assignee, each
Backup Servicer, each Collateral Agent, each Security Insurer, each Trustee and
the Holders against all costs, expenses, losses, damages, claims and
liabilities, including reasonable fees and expenses of counsel, which may be
asserted against or incurred by any of them as a result of third party claims
arising out of the events or facts giving rise to such Repurchase Events.
SECTION 5.2. REASSIGNMENT OF PURCHASED RECEIVABLES. Upon deposit in
the Collection Account of the Purchase Amount of any Receivable repurchased by
OFL under Section 5.1, ORFC shall take such steps as may be reasonably requested
by OFL in order to assign to OFL all of ORFC's and the relevant Assignee's
right, title and interest in and to such Receivable and all security and
documents and all Other Conveyed Property conveyed to ORFC and such Assignee
directly relating thereto, without recourse, representation or warranty, except
as to the absence of liens, charges or encumbrances created by or arising as a
result of actions of ORFC or such Assignee. Such assignment shall be a sale and
assignment outright, and not for security. If, following the reassignment of a
Purchased Receivable, in any enforcement suit or legal proceeding, it is held
that OFL may not enforce any such Receivable on the ground that it shall not be
a real party in interest or a holder entitled to enforce the Receivable, ORFC
shall, at the expense of OFL, take such steps as OFL deems reasonably necessary
to enforce the Receivable, including bringing suit in ORFC's or any such
Assignee's name or any Collateral Agent's name or the name of a Trustee on
behalf of its Holders.
SECTION 5.3. WAIVERS. No failure or delay on the part of ORFC, or
any Assignee, in exercising any power, right or remedy under this Agreement
shall operate as a waiver thereof, nor shall any single or partial exercise
of any such power, right or remedy preclude any other or future exercise
thereof or the exercise of any other power, right or remedy.
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ARTICLE VI
MISCELLANEOUS
SECTION 6.1. LIABILITY OF OFL. OFL shall be liable in accordance
herewith only to the extent of the obligations in this Agreement specifically
undertaken by OFL and the representations and warranties of OFL.
SECTION 6.2. MERGER OR CONSOLIDATION OF OFL OR ORFC. Any
corporation or other entity (i) into which OFL or ORFC may be merged or
consolidated, (ii) resulting from any merger or consolidation to which OFL or
ORFC is a party or (iii) succeeding to the business of OFL or ORFC, in the
case of ORFC, which corporation has a certificate of incorporation containing
provisions relating to limitations on business and other matters
substantively identical to those contained in ORFC's certificate of
incorporation or otherwise acceptable to the Security Insurers and the Rating
Agencies, provided that in any of the foregoing cases such corporation shall
execute an agreement of assumption to perform every obligation of OFL or
ORFC, as the case may be, under this Agreement and such party's Related
Documents and, whether or not such assumption agreement or agreements are
executed, shall be the successor to OFL or ORFC, as the case may be,
hereunder (without relieving OFL or ORFC of its responsibilities hereunder,
if it survives such merger or consolidation) without the execution or filing
of any document or any further act by any of the parties to this Agreement.
Notwithstanding the foregoing, ORFC shall not merge or consolidate with any
other Person or permit any other Person to become the successor to ORFC's
business without the prior written consent of each Security Insurer (so long
as no Insurer Default shall have occurred and be continuing with respect to
such Security Insurer). OFL or ORFC shall promptly inform the other party,
and, so long as an Insurer Default shall not have occurred and be continuing
with respect to such Security Insurer, each Security Insurer of such merger,
consolidation or purchase and assumption. Notwithstanding the foregoing, as
a condition to the consummation of the transactions referred to in clauses
(i), (ii) and (iii) above, (x) immediately after giving effect to such
transaction, no representation or warranty made pursuant to Sections 3.1 and
3.2 shall have been breached (for purposes hereof, such representations and
warranties shall speak as of the date of the consummation of such
transaction) and no event that, after notice or lapse of time, or both, would
become an event of default under any Insurance Agreement, shall have occurred
and be continuing, (y) OFL or ORFC, as applicable, shall have delivered to
each Trustee an officer's certificate and an opinion of counsel each stating
that such consolidation, merger or succession and such agreement of
assumption comply with this Section 6.2 and that all conditions precedent, if
any, provided for in this Agreement relating to such transaction have been
complied with, and (z) OFL or ORFC, as applicable, shall have delivered to
each Trustee an opinion of counsel, stating, in the opinion of such counsel,
either (A) all financing statements and
20
continuation statements and amendments thereto have been executed and filed
that are necessary to preserve and protect the interest of each Assignee
under any Related Document in the Receivables and reciting the details of the
filings or (B) no such actions shall be necessary to preserve and protect
such interest.
SECTION 6.3. LIMITATION ON LIABILITY OF OFL AND OTHERS. OFL and
any director, officer, employee or agent may rely in good faith on the advice
of counsel or on any document of any kind prima facie properly executed and
submitted by any Person respecting any matters arising under this Agreement.
OFL shall not be under any obligation to appear in, prosecute or defend any
legal action that is not incidental to its obligations under this Agreement
or its Related Documents and that in its opinion may involve it in any
expense or liability.
SECTION 6.4. AMENDMENT.
(a) This Agreement may be amended by OFL and ORFC, without the consent
of any Assignee or any Holders, (i) to cure any ambiguity or (ii) to correct
any ambiguity with respect to any provision in this Agreement; PROVIDED,
HOWEVER, that such action shall not, as evidenced by an opinion of counsel
delivered to each Trustee and each Rating Agency, adversely affect in any
material respect the interests of any Assignee or any Holder.
(b) This Agreement may also be amended from time to time by OFL and
ORFC, with the prior written consent of each Security Insurer (so long as an
Insurer Default shall not have occurred and be continuing with respect to
such Security Insurer) or, if an Insurer Default shall have occurred and be
continuing, with the consent of each Assignee and each Trustee (or other
representative of the Holders of all securities backed by the affected
Receivables), for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Agreement, or of
modifying in any manner the rights of ORFC; PROVIDED, that if such amendment
will have a material adverse effect on any Holders of any Securities, the
consent of the Trustee or other representative for such Holders shall be
required for such amendment; PROVIDED FURTHER, HOWEVER, that no such
amendment shall increase or reduce in any manner the amount of, or accelerate
or delay the timing of, collections of payments on Receivables or
distributions that shall be required to be made on any Security.
(c) Prior to the execution of any amendment or consent referred to in
subsection (b), OFL shall have furnished written notification of the
substance of such amendment or consent to each Rating Agency.
21
(d) It shall not be necessary for the consent of Holders pursuant to
this Section to approve the particular form of any proposed amendment or
consent, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing
the authorization of the execution thereof by Holders shall be subject to
such reasonable requirements as the related Trustee may prescribe,
including the establishment of record dates. The consent of any Holder
given pursuant to this Section or pursuant to any other provision of this
Agreement shall be conclusive and binding on such Holder and on all future
Holders of such Security and of any Security issued upon the transfer
thereof or in exchange thereof or in lieu thereof whether or not notation
of such consent is made upon the Security.
SECTION 6.5. NOTICES. All demands, notices and communications to OFL
or ORFC hereunder shall be in writing, personally delivered, or sent by
telecopier (subsequently confirmed in writing), delivered by reputable overnight
courier or mailed by certified mail, return receipt requested, and shall be
deemed to have been given upon receipt (a) in the case of OFL, to Olympic
Financial Ltd., ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇,
Attention: Treasurer, or such other address as shall be designated by OFL in a
written notice delivered to the other party or to the Issuer, as applicable or
(b) in case of ORFC, to Olympic Receivables Finance Corp., ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Treasurer.
SECTION 6.6. MERGER AND INTEGRATION. Except as specifically stated
otherwise herein, this Agreement, each Assignment Agreement and the Related
Documents sets forth the entire understanding of the parties relating to the
subject matter hereof, and all prior understandings, written or oral, are
superseded by this Agreement and the Related Documents. This Agreement may not
be modified, amended, waived or supplemented except as provided herein.
SECTION 6.7. SEVERABILITY OF PROVISIONS. If any one or more of the
covenants, provisions or terms of this Agreement shall be for any reason
whatsoever held invalid, then such covenants, provisions or terms shall be
deemed severable from the remaining covenants, provisions or terms of this
Agreement and shall in no way affect the validity or enforceability of the other
provisions of this Agreement.
SECTION 6.8. INTENTION OF THE PARTIES. The execution and delivery of
this Agreement shall constitute an acknowledgement by OFL and ORFC that they
intend that the assignments and transfers herein contemplated pursuant to each
Assignment Agreement constitute a sale and assignment outright, and not for
security, of the Receivables and the Other Conveyed Property, conveying good
title thereto free and clear of any Liens, from OFL to ORFC, and that the
Receivables and the Other
22
Conveyed Property shall not be a part of OFL's estate in the event of the
bankruptcy, reorganization, arrangement, insolvency or liquidation
proceeding, or other proceeding under any federal or state bankruptcy or
similar law, or the occurrence of another similar event, of, or with respect
to, OFL. In the event that such conveyance is determined to be made as
security for a loan made by ORFC, any Assignee or any Holders to OFL, the
parties intend that OFL shall have granted to ORFC a security interest in all
of OFL's right, title and interest in and to the Receivables and the Other
Conveyed Property conveyed pursuant to each Assignment Agreement, and that
this Agreement shall constitute a security agreement under applicable law.
SECTION 6.9. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE
PRINCIPLES OF CONFLICTS OF LAWS THEREOF AND THE OBLIGATIONS, RIGHTS AND REMEDIES
OF THE PARTIES UNDER THIS AGREEMENT SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
SECTION 6.10. COUNTERPARTS. For the purpose of facilitating the
execution of this Agreement and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and all of which counterparts
shall constitute but one and the same instrument.
SECTION 6.11. CONVEYANCE OF THE RECEIVABLES AND THE OTHER CONVEYED
PROPERTY TO AN ASSIGNEE. OFL acknowledges that ORFC intends, pursuant to a
Servicing Agreement and other Related Document, to convey the Receivables and
the Other Conveyed Property, together with its rights under this Agreement, to
Assignees under Warehousing Documents and Securitization Documents. OFL
acknowledges and consents to such conveyance and waives any further notice
thereof and covenants and agrees that the representations and warranties of OFL
contained in this Agreement and the rights of ORFC hereunder are intended to
benefit each Security Insurer, each Assignee, each Collateral Agent and each
Trustee on behalf of its Holders. In furtherance of the foregoing, OFL
covenants and agrees to perform its duties and obligations hereunder, in
accordance with the terms hereof for the benefit of each Security Insurer, each
Assignee, each Collateral Agent and each Trustee on behalf of its Holders and
that, notwithstanding anything to the contrary in this Agreement, OFL shall be
directly liable to each such Assignee (notwithstanding any failure by the
Servicer, any Backup Servicer or ORFC to perform its duties and obligations
hereunder or under any Servicing Agreement) and that each such Assignee or the
related Security Insurer may enforce the duties and obligations of OFL under
this Agreement against OFL for the benefit of the related Assignee.
SECTION 6.12. NONPETITION COVENANT. OFL shall not petition or
otherwise invoke the process of any court or government authority for the
purpose of commencing or sustaining a case against ORFC under any federal or
state bankruptcy,
23
insolvency or similar law or appointing a receiver,
liquidator, assignee, trustee, custodian, sequestrator or other similar official
of ORFC or any substantial part of its property, or ordering the winding up or
liquidation of the affairs of ORFC.
24
IN WITNESS WHEREOF, the parties have caused this Receivables Purchase
Agreement and Assignment to be duly executed by their respective officers as of
the day and year first above written.
OLYMPIC RECEIVABLES FINANCE CORP.,
as Purchaser
By: /s/ illegible
--------------------------
Name:
Title:
OLYMPIC FINANCIAL LTD.,
as Seller
By: /s/ illegible
--------------------------
Name:
Title:
[Signature Page to Receivables Purchase Agreement]
SCHEDULE A
SCHEDULE OF RECEIVABLES
[Deemed Incorporated from each Assignment Agreement]
SCHEDULE B
REPRESENTATIONS AND WARRANTIES OF OFL
1. CHARACTERISTICS OF RECEIVABLES. Each Receivable (A) was
originated by a Dealer for the retail sale of a Financed Vehicle in the
ordinary course of such Dealer's business and such Dealer had all necessary
licenses and permits to originate Receivables in the state where such Dealer
was located, was fully and properly executed by the parties thereto, was
purchased by OFL from such Dealer under an existing Dealer Agreement with OFL
and was validly assigned by such Dealer to OFL, (B) contains customary and
enforceable provisions such as to render the rights and remedies of the
holder thereof adequate for realization against the collateral security, and
(C) is a fully amortizing Receivable which provides for level monthly
payments (provided that the payment in the first calendar month and the final
calendar month of the life of the Receivable may be minimally different from
the level payment) which, if made when due, shall fully amortize the Amount
Financed over the original term.
2. NO FRAUD OR MISREPRESENTATION. Each Receivable was originated
by a Dealer and was sold by the Dealer to OFL without any fraud or
misrepresentation on the part of such Dealer in either case.
3. COMPLIANCE WITH LAW. All requirements of applicable federal,
state and local laws, and regulations thereunder (including, without
limitation, usury laws, the Federal Truth-in-Lending Act, the Equal Credit
Opportunity Act, the Fair Credit Billing Act, the Fair Credit Reporting Act,
the Fair Debt Collection Practices Act, the Federal Trade Commission Act, the
▇▇▇▇▇▇▇▇-▇▇▇▇ Warranty Act, the Federal Reserve Board's Regulations "B" and
"Z," the Soldiers' and Sailors' Civil Relief Act of 1940, the Minnesota Motor
Vehicle Retail Installment Sales Act, and state adaptations of the National
Consumer Act and of the Uniform Consumer Credit Code and other consumer
credit laws and equal credit opportunity and disclosure laws) in respect of
all of the Receivables and each and every sale of Financed Vehicles, have
been complied with in all material respects, and each Receivable and the sale
of the Financed Vehicle evidenced by each Receivable complied at the time it
was originated or made and now complies in all material respects with all
applicable legal requirements.
4. ORIGINATION. Each Receivable was originated in the United
States.
5. BINDING OBLIGATION. Each Receivable represents the genuine,
legal, valid and binding payment obligation of the Obligor thereon,
enforceable by the holder thereof in accordance with its terms, except (A) as
enforceability may be limited by bankruptcy, insolvency, reorganization or
similar laws affecting
the enforcement of creditors' rights generally and by general principles of
equity, regardless of whether such enforceability is considered in a
proceeding in equity or at law and (B) as such Receivable may be modified by
the application after its Cut-Off Date of the Soldiers' and Sailors' Civil
Relief Act of 1940, as amended; and all parties to each Receivable had full
legal capacity to execute and deliver such Receivable and all other documents
related thereto and to grant the security interest purported to be granted
thereby.
6. NO GOVERNMENT OBLIGOR. No Obligor is the United States of
America or any State or any agency, department, subdivision or
instrumentality thereof.
7. OBLIGOR BANKRUPTCY. At the applicable Cut-Off Date, no
Obligor had been identified on the records of OFL as being the subject of a
current bankruptcy proceeding.
8. SCHEDULE OF RECEIVABLES. The information set forth in the
most recent Schedule of Receivables delivered to an Assignee was true and
correct in all material respects as of the close of business on the
applicable Cut-Off Date.
9. MARKING RECORDS. On each Assignment Date, the portions of the
Electronic Ledger relating to the Receivables assigned to ORFC on such date
will be clearly and unambiguously marked to show that the Receivables were
sold to ORFC pursuant to this Agreement and each Assignment Agreement. On
each date on which Receivables are transferred by ORFC to an Assignee, OFL
will cause the portion of the Electronic Ledger relating to the Receivables
to be clearly and unambiguously marked to show that the Receivables were sold
by ORFC to an Assignee under the terms of the relevant Related Document.
10. COMPUTER TAPE. The Computer Tape, computer diskette or other
electronic transmission made available by OFL to ORFC and its assignee on
each Assignment Date was complete and accurate as of the applicable Cut-Off
Date, and includes a description of the same Receivables that are described
in the Schedule of Receivables.
11. ADVERSE SELECTION. No selection procedures adverse to an
Assignee or any Holders were utilized in selecting the Receivables from those
receivables owned by OFL which met the selection criteria contained in such
Related Document.
12. CHATTEL PAPER. The Receivables constitute chattel paper
within the meaning of the UCC as in effect in the States of Minnesota and New
York.
13. ONE ORIGINAL. There is only one original executed copy of
each Receivable.
14. RECEIVABLE FILES COMPLETE. On the applicable Assignment Date
there exists a complete Receivable File for each
B-2
Receivable transferred on such date, and such Receivable File is in the
possession of the relevant Custodian on such Assignment Date. A Receivable
File pertaining to each Receivable will contain on the related Assignment
Date (a) a fully executed original of the Receivable, (b) a certificate of
insurance, application form for insurance signed by the Obligor or a signed
representation letter from the Obligor named in the Receivable pursuant to
which the Obligor has agreed to obtain physical damage insurance for the
Financed Vehicle, or a documented verbal confirmation by an insurance agent
for the Obligor of a policy number for an insurance policy for the Financed
Vehicle, (c) the original Lien Certificate or application therefor or a
letter from the applicable Dealer agreeing unconditionally to repurchase the
related Receivable if the certificate of title is not received by OFL within
180 days, and (d) a credit application of the Obligor or a copy thereof.
Each of such documents which is required to be signed by the Obligor will
have been signed by the Obligor in the appropriate spaces. All blanks on any
form will have been properly filled in and each form will otherwise have been
correctly prepared.
15. RECEIVABLES IN FORCE. No Receivable has been satisfied,
subordinated or rescinded, and the Financed Vehicle securing each such
Receivable has not been released from the lien of the related Receivable in
whole or in part. No provisions of any Receivable have been waived, altered
or modified in any respect since its origination, except by instruments or
documents identified in the Receivable File. No Receivable has been modified
as a result of application of the Soldiers' and Sailors' Civil Relief Act of
1940, as amended.
16. LAWFUL ASSIGNMENT. No Receivable was originated in, or is
subject to the laws of, any jurisdiction, the laws of which would make
unlawful, void or voidable the sale, transfer and assignment of such
Receivable under any Assignment Agreement, Servicing Agreement or other
Related Document or pursuant to transfers of any Securities.
17. GOOD TITLE. No Receivable has been sold, transferred,
assigned or pledged by OFL to any Person other than ORFC unless the same was
released prior to the transfer of such Receivable to ORFC; immediately prior
to the conveyance of the Receivables to ORFC pursuant to any Assignment
Agreement, OFL had good and indefeasible title thereto, free and clear of any
Lien; and immediately upon the transfer thereof, ORFC shall have good and
indefeasible title to and will be the sole owner of each Receivable, free of
any Lien, other than Liens created by ORFC pursuant to a Related Document.
No Dealer has a participation in, or other right to receive, proceeds of any
Receivable. OFL has not taken any action to convey any right to any Person
that would result in such Person having a right to payments received under
the related Insurance Policies or the related Dealer Agreements or Dealer
Assignments or to payments due under such Receivables.
B-3
18. SECURITY INTEREST IN FINANCED VEHICLE. Each Receivable
creates a valid, binding and enforceable first priority security interest in
favor of OFL in the Financed Vehicle. The Lien Certificate and original
certificate of title for each Financed Vehicle show, or if a new or
replacement Lien Certificate is being applied for with respect to such
Financed Vehicle the Lien Certificate will be received within 180 days of the
related Assignment Date and will show, OFL named as the original secured
party under each Receivable as the holder of a first priority security
interest in such Financed Vehicle. With respect to each Receivable for which
the Lien Certificate has not yet been returned from the Registrar of Titles,
OFL has received written evidence from the related Dealer that such Lien
Certificate showing OFL as first lienholder has been applied for, or a letter
from the applicable Dealer agreeing unconditionally to repurchase the related
Receivable if the certificate of title is not received within 180 days.
OFL's security interest has been validly assigned by OFL to ORFC pursuant to
the applicable Assignment Agreement. Immediately after the sale, transfer
and assignment thereof by ORFC to an Assignee, each Receivable will be
secured by an enforceable and perfected first priority security interest in
the Financed Vehicle in favor of such Assignee as secured party, which
security interest is prior to all other Liens upon and security interests in
such Financed Vehicle which now exist or may hereafter arise or be created
(except, as to priority, for any lien for taxes, labor or materials affecting
a Financed Vehicle). As of the applicable Cut-Off Date there were no Liens
or claims for taxes, work, labor or materials affecting a Financed Vehicle
which are or may be Liens prior or equal to the lien of the related
Receivable.
19. ALL FILINGS MADE. All filings (including, without limitation,
UCC filings) required to be made by any Person and actions required to be
taken or performed by any Person in any jurisdiction to give ORFC a first
priority perfected lien on, or ownership interest in, the Receivables and the
Other Conveyed Property have been made, taken or performed.
20. NO IMPAIRMENT. OFL has not done anything to convey any right
to any Person that would result in such Person having a right to payments due
under a Receivable or otherwise to impair the rights of ORFC, any Assignee
and the related Trustee on behalf of its Holders in any Receivable or the
proceeds thereof.
21. RECEIVABLE NOT ASSUMABLE. No Receivable is assumable by
another Person in a manner which would release the Obligor thereof from such
Obligor's obligations to OFL with respect to such Receivable.
22. NO DEFENSES. No Receivable is subject to any right of
rescission, setoff, counterclaim or defense and no such right has been
asserted or threatened with respect to any Receivable.
B-4
23. NO DEFAULT. There has been no default, breach, violation or
event permitting acceleration under the terms of any Receivable (other than
payment delinquencies of not more than 30 days), and no condition exists or
event has occurred and is continuing that with notice, the lapse of time or
both would constitute a default, breach, violation or event permitting
acceleration under the terms of any Receivable, and there has been no waiver
of any of the foregoing. As of the applicable Cut-Off Date, no Financed
Vehicle has been repossessed.
24. INSURANCE. As of the Assignment Date for the related
Receivable, each Financed Vehicle is covered by a comprehensive and collision
insurance policy (i) in an amount at least equal to the lesser of (a) its
maximum insurable value or (b) the principal amount due from the Obligor
under the related Receivable, (ii) naming OFL as loss payee and (iii)
insuring against loss and damage due to fire, theft, transportation,
collision and other risks generally covered by comprehensive and collision
coverage. Each Receivable requires the Obligor to maintain physical loss and
damage insurance, naming OFL and its successors and assigns as additional
insured parties, and each Receivable permits the holder thereof to obtain
physical loss and damage insurance at the expense of the Obligor if the
Obligor fails to do so. No Financed Vehicle was or had previously been
insured under a policy of Force-Placed Insurance on the related Cut-Off Date.
25. PAST DUE. As of the applicable Cut-Off Date, no Receivable
was more than 30 days past due and no funds have been advanced by OFL, ORFC,
the Servicer, any Dealer or anyone acting on behalf of any of them in order
to cause any Receivable to satisfy such requirement.
26. REMAINING PRINCIPAL BALANCE. As of the applicable Cut-Off
Date, each Receivable had a remaining principal balance equal to or greater
than $500.00 and the Principal Balance of each Receivable set forth in the
related Schedule of Receivables is true and accurate in all material respects.
27. ORIGINAL MATURITY. Each Receivable, and the Receivables as a
whole, had original maturities with the parameters represented and warranted
to by ORFC in the related Warehousing Document or Securitization Document.
If represented and warranted to by ORFC in the related Securitization
Document or Warehousing Document, each Receivable with an original maturity
of greater than 72 months is secured by a Financed Vehicle that is a new
automobile or an automobile that is less than one year old. If applicable,
no more than the percentage specified in the applicable Warehousing Document
or Securitization Document of the Receivables are Classic Receivables or are
secured by Financed Vehicles that are financed repossessions, or satisfy any
other applicable categorization with respect to Receivable type.
B-5
28. COMPLIANCE WITH UNDERWRITING GUIDELINES. Each Receivable was
originated pursuant to OFL's underwriting standards which have not, without the
prior written consent of any Person specified in a Related Document, been
materially changed since the Closing Date.
B-6
EXHIBIT A
FORM OF ASSIGNMENT AGREEMENT
THIS ASSIGNMENT AGREEMENT dated as of __________ __, ____, executed
between Olympic Receivables Finance Corp., a Delaware corporation, as
purchaser ("ORFC"), and Olympic Financial Ltd., a Minnesota corporation, as
seller ("OFL").
W I T N E S S E T H
WHEREAS, ORFC and OFL are parties to the Receivables Purchase
Agreement and Assignment dated as of December 3, 1996 (hereinafter as such
agreement may have been, or may from time to time be, amended, supplemented
or otherwise modified, the "Purchase Agreement"); and
WHEREAS, pursuant to the Purchase Agreement, OFL wishes to convey
Receivables and Other Conveyed Property (as each such term is defined in the
Purchase Agreement) to ORFC hereunder;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements hereinafter contained, and for other good and valuable
consideration, the receipt of which is hereby acknowledged, ORFC and OFL,
intending to be legally bound, hereby agree as follows:
1. DEFINITIONS. All terms defined in the Purchase Agreement
(whether directly or by reference to other documents) and used herein shall
have such defined meanings when used herein, unless otherwise defined herein.
"Assignment Date" shall mean, with respect to the Receivables and
the related Other Conveyed Property being conveyed hereby, __________ __,
____.
"Cut-Off Date" shall mean, with respect to the Receivables and the
related Other Conveyed Property being conveyed hereby, the date specified in
the Related Document(s) conveying such Receivables to an Assignee.
2. CONVEYANCE OF RECEIVABLES. Subject to the conditions
specified in Section 2.2(b) of the Purchase Agreement and subject to the
mutually agreed upon terms contained in the Purchase Agreement, OFL hereby
sells, transfers, assigns and otherwise conveys to ORFC without recourse (but
without limitation of its obligations in the Purchase Agreement, or any other
Related Document), all of the right, title and interest of OFL, whether now
existing or hereafter acquired, in and to all
accounts, contract rights, general intangibles, chattel paper, instruments,
documents, money, deposit accounts, certificates of deposit, goods, letters
of credit, advices of credit and uncertificated securities consisting of,
arising from or relating to the Receivables listed on Schedule A hereto and
the related Other Conveyed Property.
3. COUNTERPARTS. This Assignment Agreement may be executed in
two or more counterparts, each of which shall be an original, but all of
which together shall constitute one and the same instrument.
4. GOVERNING LAW. This Assignment Agreement shall be governed by
and construed in accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the undersigned have caused this Assignment
Agreement to be duly executed and delivered by their respective duly
authorized officers on the day and year first above written.
OLYMPIC RECEIVABLES FINANCE CORP.,
as Purchaser
By: _____________________________
Name:
Title:
OLYMPIC FINANCIAL LTD.,
as Seller
By: _____________________________
Name:
Title:
A-2