EXECUTION COPY
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SECOND AMENDMENT
AND CONSENT
dated as of May 30, 1997
Relating to
NOTE PURCHASE AGREEMENT
among
OLYMPIC AUTOMOBILE RECEIVABLES WAREHOUSE TRUST
as Seller,
ARCADIA FINANCIAL LTD.
(formerly Olympic Financial Ltd.)
as Servicer and in its individual capacity,
DELAWARE FUNDING CORPORATION
as Purchaser,
and
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK,
as Administrative Agent for the benefit of the DFC Owners,
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THIS SECOND AMENDMENT AND CONSENT dated as of May 30, 1997 (this
"AMENDMENT") Relating to the Note Purchase Agreement dated as of December 28,
1995 and amended as of January 17, 1997 (as amended and supplemented from time
to time, the "NOTE PURCHASE AGREEMENT") by and among OLYMPIC AUTOMOBILE
RECEIVABLES WAREHOUSE TRUST, a Delaware business trust (the "SELLER"), ARCADIA
FINANCIAL LTD. (formerly Olympic Financial Ltd.), a Minnesota corporation, as
Servicer and in its individual capacity ("OFL"), DELAWARE FUNDING CORPORATION
(with its respective successors and assigns, the "PURCHASER"), and ▇▇▇▇▇▇
GUARANTY TRUST COMPANY OF NEW YORK (successor to ▇.▇. ▇▇▇▇▇▇ Delaware), as
Administrative Agent, for the benefit of the DFC Owners (the "ADMINISTRATIVE
AGENT"), is by and among the parties listed above. Capitalized terms used in
this Amendment and not otherwise defined shall have the meanings assigned to
such terms in the Note Purchase Agreement.
RECITALS
WHEREAS, pursuant to Section 13.01 of the Note Purchase Agreement, the
parties to the Note Purchase Agreement may agree in writing to amend such
Agreement; and
WHEREAS, pursuant to Section 2.04 of the Note Purchase Agreement, the
parties to the Note Purchase Agreement are permitted to extend the Purchase
Commitment Expiration Date by mutual agreement in writing; and
WHEREAS, pursuant to Section 8.06 of the Note Purchase Agreement, the
Seller agreed not to make any material amendment to the Sale and Servicing
Agreement without prior written consent of the Purchaser; and
WHEREAS, pursuant to Section 9.06 of the Note Purchase Agreement, OFL
agreed not to make any material amendment to the Sale and Servicing Agreement
without the prior written consent of the Purchaser; and
WHEREAS, the parties to the Note Purchase Agreement desire to amend
the Note Purchase Agreement in certain respects as provided herein, including by
amending that certain covenant relating to OFL's Capital Base and the
Incremental Purchase condition and Note Purchase Termination Event relating to
the minimum Certificate Balance; and
WHEREAS, the parties to the Note Purchase Agreement desire to extend
the optional termination date provision of the Purchase Commitment Expiration
Date by amending the related definition in the Note Purchase Agreement; and
WHEREAS, the Purchaser desires to consent to the amendments to the
Sale and Servicing Agreement.
NOW THEREFORE, in consideration of the premises and the agreements
contained herein, the parties to this Amendment agree as follows:
SECTION 1. EXTENSION AND AMENDMENT OF PURCHASE COMMITMENT EXPIRATION
DATE. The parties hereto agree to extend the optional termination date
provision of the Purchase Commitment Expiration Date and to amend such
definition. The definition of "Purchase Commitment Expiration Date" is hereby
amended to read as follows:
"PURCHASE COMMITMENT EXPIRATION DATE" means the earliest of
(i) December 19, 1997, (ii) August 29, 1997, but only if either (A) a
"Purchase Commitment Expiration Date" occurs by reason of clause (ii) of
such definition in the Certificate Purchase Agreement or (B) the Purchaser,
in its sole and absolute discretion, determines to terminate its Purchase
Commitment hereunder and so notifies the Seller and OFL in writing on or
before July 31, 1997, (iii) the date on which an event which causes or
might cause a Note Purchase Termination Event occurs, and (iv) the date on
which a Securitized Offering occurs; provided that the Purchase Commitment
Expiration Date may be extended from time to time in accordance with
Section 2.04 hereof.
SECTION 2. AMENDMENT TO REQUIREMENTS FOR INCREMENTAL PURCHASES.
Section 2.03(a)(ix) of the Note Purchase Agreement is hereby amended to increase
the requirement relating to the minimum Certificate Balance of the Investor
Certificates and now reads as follows:
(ix) the aggregate Certificate Balance of the Investor Certificates
shall equal at least twelve (12) percent of the sum of (a) the Facility
Balance and (b) the Certificate Balance of the General Partner
Certificates.
SECTION 3. AMENDMENT TO NOTE PURCHASE TERMINATION EVENT. Section
2.08(g) of the Note Purchase Agreement is amended so that a "Note Purchase
Termination Event" will occur if the Certificate Balance of the Investor
Certificates is not maintained at an increased amount and now reads as follows:
(g) unless no Notes are issued and outstanding, the aggregate
Certificate Balance of the Investor Certificates shall be less than twelve
(12) percent of the sum of (i) the Facility Balance and (ii) the
Certificate Balance of the General Partner Certificates;
SECTION 4. ADDITION OF WAIVER TO OFL'S MINIMUM CAPITAL BASE COVENANT.
The following new waiver language is added to the end of OFL's covenant in
Section 9.07 to the Note Purchase Agreement and Section 9.07 now reads as
follows:
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SECTION 9.07. MINIMUM CAPITAL BASE.
(a) OFL will not permit its consolidated Capital Base, on the last day
of its fiscal year, to be less than the sum of (i) its consolidated Capital
Base on the last day of the immediately preceding fiscal year, PLUS (ii) to
the extent Net Income for such fiscal year is greater than zero, Net Income
for such fiscal year PLUS (iii) Capital Base Proceeds for such fiscal year;
and
(b) OFL will not permit its consolidated Capital Base, on the last day
of any fiscal quarter other than the last day of its fiscal year, to be
less than the sum (i) 95% of its consolidated Capital Base on the last day
of the immediately preceding fiscal year PLUS (ii) Capital Base Proceeds
since the last day of the immediately preceding fiscal year;
PROVIDED, HOWEVER, that OFL shall not be deemed or declared to be in breach
of the covenants contained in this Section 9.07 as long as on the last day
of any fiscal quarter, OFL's consolidated Capital Base is not less than
$325,000,000;
SECTION 5. CONSENT TO AMENDMENTS TO SALE AND SERVICING AGREEMENT.
The Purchaser hereby consents, pursuant to Sections 8.06 and 9.06 of the Note
Purchase Agreement, to Amendment No. 4 to Sale and Servicing Agreement of even
date herewith, substantially in the form attached to this Amendment as Appendix
A.
SECTION 6. NOTE PURCHASE AGREEMENT IN FULL FORCE AND EFFECT AS
AMENDED. Except as specifically stated herein, all of the terms and conditions
of the Note Purchase Agreement shall remain in full force and effect. All
references to the Note Purchase Agreement in any other document or instrument
shall be deemed to mean the Note Purchase Agreement, as amended by this
Amendment. This Amendment shall not constitute a novation of the Note Purchase
Agreement, but shall constitute an amendment thereto. The parties hereto agree
to be bound by the terms and obligations of the Note Purchase Agreement, as
amended by this Amendment, as though the terms and obligations of the Note
Purchase Agreement were set forth herein.
SECTION 7. EFFECTIVENESS. This Amendment shall become effective as
of May 30, 1997, upon receipt by the Administrative Agent of the following:
(a) executed counterparts of this Amendment; (b) an executed copy of the Fourth
Amendment and Consent Relating to DFC Asset Purchase Agreement, dated as of the
date hereof, evidencing the extension of the optional termination commitment
terms and certain other changes to the provisions thereof; (c) an executed copy
of the Third Amendment and Consent Relating to Certificate Purchase Agreement
among the Seller, OFL, the "Purchasers" named therein and ▇▇▇▇▇▇ Guaranty Trust
Company of New York; (d) an executed counterpart of Amendment No. 4 to
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the Sale and Servicing Agreement dated as of the date hereof; (e) an Officer's
Certificate from each of the Seller, OFL and ORFC II, each in form and substance
reasonably acceptable to the Purchaser and its counsel, dated as of the date of
this Amendment, to the effect that (i) the representations and warranties of the
Seller, OFL and ORFC II in the Sale and Servicing Agreement, the Note Purchase
Agreement, the Certificate Purchase Agreement, the Purchase Agreement and the
Trust Agreement, as applicable, are true and correct as of the date hereof;
(ii) OFL, the Seller and ORFC II are in compliance with their respective
covenants in the Sale and Servicing Agreement, the Note Purchase Agreement, the
Certificate Purchase Agreement, the Purchase Agreement and the Trust Agreement,
as applicable, as of the date hereof; and (iii) no Note Purchase Termination
Event or event which with the passage of time could become a Note Purchase
Termination Event shall have occurred and be continuing as of the date hereof;
and (f) confirmation by each of S&P and ▇▇▇▇▇'▇ of the then-current ratings of
the Commercial Paper Notes.
SECTION 8. PRIOR UNDERSTANDINGS. This Amendment sets forth the
entire understanding of the parties relating to the subject matter hereof, and
supersedes all prior understandings and agreements, whether written or oral.
SECTION 9. COUNTERPARTS. This Amendment may be executed in any
number of counterparts and by separate parties hereto on separate counterparts,
each of which when executed shall be deemed an original, but all such
counterparts taken together shall constitute one and the same instrument.
SECTION 10. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties have caused this Amendment to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
OLYMPIC AUTOMOBILE RECEIVABLES WAREHOUSE TRUST,
as Seller
By: Wilmington Trust Company, not in its
individual capacity but solely as Owner
Trustee
By:
---------------------------
Name:
Title:
ARCADIA FINANCIAL LTD.
By:
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Name:
Title: Treasurer
DELAWARE FUNDING CORPORATION,
as Purchaser
By: ▇▇▇▇▇▇ Guaranty Trust
Company of New York,
as attorney-in-fact for
Delaware Funding Corporation
By:
---------------------------
Name:
Title:
▇▇▇▇▇▇ GUARANTY TRUST COMPANY
OF NEW YORK,
as Administrative Agent
By:
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Name:
Title:
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