EXECUTION COPY
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SECOND AMENDMENT
AND CONSENT
dated as of January 17, 1997
Relating to
CERTIFICATE PURCHASE AGREEMENT
among
OLYMPIC AUTOMOBILE RECEIVABLES WAREHOUSE TRUST
as Seller,
OLYMPIC FINANCIAL LTD.
as Servicer and in its individual capacity,
THE PARTIES SIGNATORY HERETO
as Purchasers,
and
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK,
as Agent for the Purchasers
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THIS SECOND AMENDMENT AND CONSENT dated as of January 17, 1997 (this
"AMENDMENT") Relating to the Certificate Purchase Agreement dated as of December
28, 1995 and amended as of December 20, 1996 (as amended and supplemented from
time to time, the "CERTIFICATE PURCHASE AGREEMENT"), by and among OLYMPIC
AUTOMOBILE RECEIVABLES WAREHOUSE TRUST, a Delaware business trust (the
"SELLER"), OLYMPIC FINANCIAL LTD., a Minnesota corporation, as Servicer (as
defined below) and in its individual capacity ("OFL"), XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK (successor to X.X. XXXXXX DELAWARE) ("MGT"), and Olympic
Receivables Finance Corp. II ("ORFC II") (each of MGT and ORFC II, a "PURCHASER"
and together, the "PURCHASERS"), and XXXXXX GUARANTY TRUST COMPANY OF NEW YORK,
as agent for the benefit of the Purchasers (the "PURCHASERS' 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
Certificate Purchase Agreement.
RECITALS
WHEREAS, pursuant to Section 13.01 of the Certificate Purchase
Agreement, the parties to such Agreement are authorized to amend the Certificate
Purchase Agreement in a written amendment signed by all parties thereto; and
WHEREAS, pursuant to Section 2.04 of the Certificate Purchase
Agreement, the parties may agree in writing to the extension of the Purchase
Commitment Expiration Date; and
WHEREAS, pursuant to Section 2.05(a) of the Certificate Purchase
Agreement, the Seller may notify the Purchasers' Agent in writing of the
Seller's determination to reduce the aggregate of the Purchase Commitments, such
reduction to become effective in the manner provided in the Certificate Purchase
Agreement; and
WHEREAS, pursuant to Section 8.05 of the Certificate Purchase
Agreement, the Seller agreed not to make any material amendment to the Sale and
Servicing Agreement without the prior written consent of the Purchasers; and
WHEREAS, pursuant to Section 9.05 of the Certificate Purchase
Agreement, OFL agreed not to make any material amendment to the Sale and
Servicing Agreement or the Purchase Agreement without the prior written consent
of the Purchasers; and
WHEREAS, the parties to the Certificate Purchase Agreement desire to
further amend the Certificate Purchase Agreement to, among other things, change
certain of the Incremental Purchase Conditions, add certain covenants and change
certain rates and fees; and
WHEREAS, the parties to the Certificate Purchase Agreement desire to
extend the Purchase Commitment Expiration Date by amending the related
definition in the Certificate Purchase Agreement; and
WHEREAS, MGT and the Purchasers' Agent desire to accept this Amendment
as the Seller's notice of reduction of the aggregate Purchase Commitments; and
WHEREAS, due to the reduction of the Purchase Commitments, the
Purchase Commitments will be affected as evidenced herein; and
WHEREAS, the Purchasers and the Purchasers' Agent desire to consent to
amendment of the Sale and Servicing Agreement and the Purchase Agreement.
NOW THEREFORE, in consideration of the premises and the agreements
contained herein, the parties to this Amendment agree as follows:
SECTION 1. NEW DEFINITIONS. The following new
definitions are hereby added to Section 1.01 of the Certificate
Purchase Agreement:
"CAPITAL BASE" shall mean, at any date, OFL's Tangible
Net Worth at such date.
"CAPITAL BASE PROCEEDS," for any period, shall mean the proceeds
received by OFL from any sale of equity securities during such period (net
of direct, out-of-pocket expenses incurred in connection with such sale).
"CHANGE OF CONTROL" shall mean the occurrence of any of the following
with respect to OFL:
(a) (i) a majority of the directors of OFL shall be Persons other than
Persons (x) for whose election proxies shall have been solicited by the
board of directors of OFL or (y) who are then serving as directors
appointed by the board of directors to fill vacancies on the board of
directors caused by death or resignation (but not by removal) or to fill
newly-created directorships or (ii) any person or group of persons (within
the meaning of Section 13 or 14 of the Securities Exchange Act of 1934, as
amended) shall have acquired beneficial ownership (within the meaning of
Rule 13d-3 promulgated by the Securities and Exchange Commission under said
Act) of 50% or more in voting power of the outstanding voting stock of OFL;
or
(b) OFL shall fail to own, directly or indirectly, 100% of the
outstanding capital stock of ORFC II.
"GAAP" means generally accepted accounting principles set forth from
time to time in the opinions and pronouncements of the Accounting
Principles Board and the American Institute of Certified Public Accountants
and statements and pronouncements of the Financial Accounting Standards
Board (or agencies with similar functions of comparable stature and
authority within the U.S. accounting
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profession), which are applicable to
the circumstances as of the date of any determination.
"NET INCOME" shall mean, for any period, OFL's after-tax net income
for such period determined in accordance with GAAP but after deduction of
dividend payments on OFL's Cumulative Convertible Exchangeable Preferred
Stock (as described in OFL's Amendment No. 3 to Form S-1 Registration
Statement dated November 22, 1993).
"NET WORTH" shall mean the total of all assets appearing on OFL's
balance sheet after deducting all proper reserves (including reserves for
depreciation, obsolescence and amortization) minus all liabilities of OFL,
in each case determined in accordance with GAAP.
"PERMITTED ACQUISITION" shall mean the acquisition by OFL or any of
its subsidiaries of any Person that is a going concern that satisfies the
conditions specified in that certain Credit Agreement dated as of July 11,
1996, among OFL, the several institutions party thereto, Bank of America
National Trust and Savings Association, as agent and First Bank National
Association, as co-manager.
"TANGIBLE NET WORTH" shall mean, at any time, OFL's Net Worth at such
time, excluding the value of goodwill (other than goodwill arising from a
Permitted Acquisition), trademarks, trade names, copyrights, patents,
licenses and similar intangibles but specifically including, all of OFL's
Finance Income Receivables (calculated in a manner consistent with OFL's
audited consolidated balance sheet as of December 31, 1995) as at such
time.
SECTION 2. INCREASE IN EURODOLLAR RATE UNDER CERTAIN CIRCUMSTANCES.
The parties hereto agree to increase the Eurodollar Rate if and for so long as
any Warehousing Period (as defined in the Sale and Servicing Agreement) exceeds
90 days and accordingly the definition of "Eurodollar Rate" in Section 1.01 of
the Certificate Purchase Agreement is hereby amended to read as follows:
"EURODOLLAR RATE" shall mean, with respect to any Certificate Funding
Period, a rate per annum equal to Adjusted LIBOR for such Certificate
Funding Period plus either (i) 0.55% of one percent per annum or (ii) if
and for so long as any Warehousing Period exceeds 90 days, 0.80% of one
percent per annum. Each determination of the Eurodollar Rate shall be
calculated on the basis of actual days elapsed and a year of 360 days.
SECTION 3. EXTENSION AND AMENDMENT OF PURCHASE COMMITMENT EXPIRATION
DATE. The parties hereto agree to extend the Purchase Commitment Expiration
Date and to amend such
definition. The definition of "Purchase Commitment Expiration
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Date" in Section 1.01 of the Certificate Purchase Agreement is hereby
amended to read as follows:
"PURCHASE COMMITMENT EXPIRATION DATE" means the earliest of
(i) December 19, 1997, (ii) June 30, 1997, but only if any Purchaser, in
its sole and absolute discretion, determines to terminate its Purchase
Commitment hereunder and so notifies the Seller, OFL and the Purchasers'
Agent in writing on or before May 30, 1997 and such terminating Purchaser's
Purchase Commitment is not accepted by another existing or new Purchaser or
Purchasers, (iii) the date on which an event which causes or might cause a
Certificate 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 4. ADDITIONAL INCREMENTAL PURCHASE CONDITIONS. (a) Clause
(ii) of Section 2.03(a) of the Certificate Purchase Agreement is hereby amended
to read as follows:
(ii) The Purchasers' Agent shall have received a completed Notice of
Incremental Purchase by 2:00 p.m., New York City time, on the third LIBOR
Business Day before such Incremental Purchase Date (if any such Notice is
received after 2:00 p.m., the related Incremental Purchase shall occur on
the fourth LIBOR Business Day following such receipt);
(b) Clause (vi) of Section 2.03(a) is hereby amended to include a
reference to the Certificate Purchase Agreement and now reads as follows:
(vi) The Seller, the Owner Trustee, the General Partner, OFL and ORFC
II shall be in compliance with all of their respective covenants contained
in the Trust Agreement, the Sale and Servicing Agreement, the Purchase
Agreement, each Assignment Agreement, each Transfer Agreement, the
Indenture and this Certificate Purchase Agreement;
SECTION 5. CHANGE IN AMOUNT OF INCREMENTAL PURCHASE. Section 2.03(b)
of the Certificate Purchase Agreement is hereby amended to require that each
Incremental Purchase be made in the amount of the aggregate unused Purchase
Commitments under the Certificate Purchase Agreement and now reads as follows:
(b) Each Incremental Purchase shall be requested in the amount equal
to the aggregate of the unused Purchase Commitments hereunder and the
initial Funding Rate on the Investor Certificates purchased on each such
Incremental Purchase Date shall be based on the Euro-Dollar Rate.
SECTION 6. DECREASE IN PURCHASE COMMITMENTS. In accordance with the
provisions of Section 2.05(a) of the Certificate Purchase Agreement, the
Purchasers and the
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Purchasers' Agent acknowledge notice of the reduction in the
aggregate of the Purchase Commitments from $29,700,000 to $22,275,000.
Following such reduction, the Purchasers' Purchase Percentage will remain
unchanged, and the Purchase Commitments will be revised proportionately. The
Purchasers will evidence their respective Purchase Commitments and Purchase
Percentages by executing signature pages to this Amendment. Such signature
pages shall supersede the signature pages to the Certificate Purchase Agreement,
and from and after the date of this Amendment, all references to the signature
pages of the Certificate Purchase Agreement shall refer to the signature pages
to this Amendment.
SECTION 7. ADDITION OF CERTIFICATE PURCHASE TERMINATION EVENT. The
following event is added as a new clause (g) to Section 2.07 of the Certificate
Purchase Agreement as an additional "Certificate Purchase Termination Event":
(g) a Change of Control shall have occurred without the consent of the
Purchasers' Agent.
SECTION 8. ADDITIONAL OFL COVENANTS. The following new OFL covenant
is added as new Section 9.06 to the Certificate Purchase Agreement and reads as
follows:
SECTION 9.06. 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.
(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.
SECTION 9. INCREASE IN PURCHASE AVAILABILITY FEE UNDER CERTAIN
CIRCUMSTANCES. The parties hereto agree to increase the Purchase Availability
Fee if and for so long as any Warehousing Period (as defined in the Sale and
Servicing Agreement) exceeds 90 days and accordingly, Section 10.02(b) of the
Certificate Purchase Agreement is amended to read as follows:
(b) OFL shall pay to each Purchaser a Purchase Availability Fee,
payable quarterly in arrears, on the last day of each calendar quarter
during the period such Purchaser has a Purchase Commitment under this
Certificate Purchase Agreement and on the Purchase Commitment Expiration
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Date, as the same may be extended from time to time. The Purchase
Availability Fee for each Purchaser shall be a per annum fee equal to such
Purchaser's average daily unused Purchase Commitment multiplied by either
(i) .35% per annum or (ii) if and for so long as any Warehousing Period
exceeds 90 days, .45% per annum.
SECTION 10. AMENDMENT TO NOTICE OF INCREMENTAL PURCHASE. The Notice
of Incremental Purchase, included as Exhibit C to the Certificate Purchase
Agreement, is hereby amended and now reads as set forth in the Exhibit C
attached to this Amendment.
SECTION 11. CONSENT TO AMENDMENT TO SALE AND SERVICING AGREEMENT AND
PURCHASE AGREEMENT. The Purchasers hereby consent, pursuant to Section 8.05 and
9.05 of the Certificate Purchase Agreement, to the Amendment No. 3 to Sale and
Servicing Agreement and Amendment No. 3 to Receivables Purchase Agreement, each
of even date herewith, substantially in the forms attached hereto as Appendices
A and B.
SECTION 12. CERTIFICATE PURCHASE AGREEMENT IN FULL FORCE AND EFFECT
AS AMENDED AND SUPPLEMENTED. Except as specifically stated herein, all of the
terms and conditions of the Certificate Purchase Agreement shall remain in full
force and effect. All references to the Certificate Purchase Agreement in any
other document or instrument shall be deemed to mean the Certificate Purchase
Agreement, as amended and supplemented by this Amendment. This Amendment shall
not constitute a novation of the Certificate Purchase Agreement, but shall
constitute an amendment and supplement thereto. The parties hereto agree to be
bound by the terms and obligations of the Certificate Purchase Agreement, as
supplemented by this Amendment, as though the terms and obligations of the
Certificate Purchase Agreement were set forth herein.
SECTION 13. EFFECTIVENESS. This Amendment shall become effective as
of January 17, 1997 upon receipt by the Purchasers' Agent of (i) counterparts of
this Amendment, duly executed by each of the parties hereto, (ii) notice that
the conditions to effectiveness of the First Amendment and Consent Relating to
Note Purchase Agreement dated the date hereof have been satisfied and
(iii) confirmation by each of S&P and Xxxxx'x of the then-current ratings of the
Commercial Paper Notes.
SECTION 14. 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 15. 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.
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SECTION 16. 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, as Owner
Trustee
By:/s/ illegible
----------------------------
Name: Authorized Officer
OLYMPIC FINANCIAL LTD., as
Servicer and in its
individual capacity
By:/s/ Xxxxxxx X. Xxxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Treasurer
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK, as a
Purchaser
Purchase By:/s/ Xxxxxxx X. Xxxxx
Commitment: $11,137,500 ----------------------------
Purchase Percentage: 50% Name: Xxxxxxx X. Xxxxx
Title: Vice President
OLYMPIC RECEIVABLES FINANCE
CORP. II, as a Purchaser
Purchase By:/s/ Xxxx X. Xxxxxx
Commitment: $11,137,500 ----------------------------
Purchase Percentage: 50% Name: Xxxx X. Xxxxxx
Title: Senior Vice President
& Chief Financial Officer
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK,
as Purchasers' Agent
By:/s/ Xxxxxxx X. Xxxxx
----------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
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EXHIBIT C
to Certificate
Purchase Agreement
Form of Notice of
Incremental Purchase or Repayment/Redemption
Olympic Automobile Receivables Warehouse Trust
Variable Funding Certificates
A. Proposed Incremental Purchase or
Repayment/Redemption Date: __________
B. Certificate Balance of Investor Certificates
(prior to giving effect to Incremental
Purchase or Repayment/Redemption, as
applicable, on date hereof) $__________
C. Amount of requested Incremental Purchase
(amount of remaining aggregate Purchase
Commitments) $__________
D. Repayment/Redemption Amount $__________
E. Certificate Balance of Investor Certificates
(after giving effect to Incremental Purchase
or Repayment/Redemption, as applicable, on
date hereof) $__________
F. Facility Limit $__________
G. Remaining Facility Limit $__________
H. Calculations (after giving effect to the
conveyance of Receivables on the related
Transfer Date)
1. The aggregate Principal Balance of
Receivables with original maturities from 73
to 84 months divided by the aggregate of the
Principal Balances of all Receivables (maximum
of 7.5%) __________%
2. The aggregate Principal Balance of
Receivables attributable to loans originated
under OFL's "Classic" program divided by the
aggregate of the Principal Balances of all
Receivables (maximum of 55%) __________%
3. The aggregate Principal Balance of
Receivables attributable to loans defined by
OFL as "Financed Repossessions" divided by the
aggregate of the Principal Balances of all
Receivables (maximum of 3.0%) __________%
4. Weighted Average Coupon of Receivables __________%
5. Weighted Average Maturity of Receivables __________%
I. Certifications (applicable only with respect
to an Incremental Purchase)
1. The information relating to the Receivables to be
purchased by Olympic Automobile Receivables Warehouse Trust
(the "Trust") and pledged to Norwest Bank Minnesota,
National Association, as trustee (the "Indenture Trustee")
under the Indenture dated as of December 28, 1995, as
amended (the "Indenture"), is true and correct.
2. The representations and warranties of Olympic
Financial Ltd. ("OFL") in the Sale and Servicing Agreement
dated as of December 28, 1995, as amended (the "Sale and
Servicing Agreement"), among the Trust, Olympic Receivables
Financial Corp. ("ORFC II"), OFL, in its individual
capacity and as servicer of the Receivables, and Norwest
Bank Minnesota, National Association, the Receivables
Purchase Agreement dated December 28, 1995, as amended, by
and between OFL and ORFC II and the Certificate Purchase
Agreement dated as of December 28, 1995, as amended (the
"Certificate Purchase Agreement"), by and among the Trust,
OFL, in its individual capacity and as servicer of the
Receivables, the financial institutions which executed
signature pages thereto and Xxxxxx Guaranty Trust Company
of New York are true and correct in all material respects
as of the date hereof.
3. The representations of the Trust in the Certificate
Purchase Agreement are true and correct in all material
respects as of the date hereof.
4. The representations of ORFC II in the Sale and
Servicing Agreement are true and correct in all material
respects as of the date hereof.
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5. The Incremental Purchase Conditions specified in
Section 2.03(a) of the Certificate Purchase Agreement have
been satisfied and/or will be satisfied as of the
applicable Incremental Purchase Date.
OLYMPIC AUTOMOBILE RECEIVABLES WAREHOUSE TRUST
By: Wilmington Trust Company, as Owner
Trustee
By: ________________________
Authorized Officer
OLYMPIC FINANCIAL LTD.
By: ________________________
Authorized Officer
Date: ____________________
C-3
