EXECUTION COPY
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FIRST AMENDMENT
AND CONSENT
dated as of January 17, 1997
Relating to
NOTE PURCHASE AGREEMENT
among
OLYMPIC AUTOMOBILE RECEIVABLES WAREHOUSE TRUST
as Seller,
OLYMPIC FINANCIAL LTD.
as Servicer and in its individual capacity,
DELAWARE FUNDING CORPORATION
as Purchaser,
and
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK,
as Administrative Agent for the benefit of the DFC Owners,
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THIS FIRST AMENDMENT AND CONSENT dated as of January 17, 1997 (this
"AMENDMENT") Relating to the Note Purchase Agreement dated as of December 28,
1995 (as amended from time to time, the "NOTE PURCHASE AGREEMENT") by and
among OLYMPIC AUTOMOBILE RECEIVABLES WAREHOUSE TRUST, a Delaware business
trust (the "SELLER"), 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 XXXXXX
GUARANTY TRUST COMPANY OF NEW YORK (successor to X.X. Xxxxxx 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 2.05(a) of the Note Purchase
Agreement, the Seller may reduce the unused Purchase Commitment and such
reduction will become effective upon the Seller's providing the
Administrative Agent with written notice of such reduction thereto; 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 or the Purchase 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 certain definitions, adding certain covenants and adding certain
Note Purchase Termination Events; and
WHEREAS, the parties to the Note Purchase Agreement desire to
extend the Purchase Commitment Expiration Date by amending the related
definition in the Note Purchase Agreement; and
WHEREAS, the Purchaser and the Administrative Agent desire to
accept this Amendment as notice of the reduction of the amount of the
Purchase Commitment; and
WHEREAS, the Purchasers desire to consent to the amendments to 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 Note 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 profession), which are
applicable to the circumstances as of the date of any determination.
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"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. 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 Date" 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 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 May 30, 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 3. ADDITIONAL REQUIREMENTS FOR INCREMENTAL PURCHASES. (a)
Section 2.03(a)(ii) of the Note Purchase Agreement is hereby amended to read
as follows:
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(ii) The Administrative Agent shall have received a completed Notice
of Incremental Purchase by 2:00 p.m., New York City time, on the Business
Day immediately preceding such Incremental Purchase Date (or if any such
Notice is received after 2:00 p.m., the related Incremental Purchase shall
occur on the second Business Day following such receipt);
(b) Clause (vi) of Section 2.03(a) is hereby amended to include a
reference to the Note 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 Note Purchase Agreement;
SECTION 4. DECREASE IN PURCHASE COMMITMENT. In accordance with
the provisions of Section 2.05(a) of the Note Purchase Agreement, the
Purchaser and the Administrative Agent acknowledge that this Amendment
constitutes notice of the reduction of the Purchase Commitment from
$300,000,000 to $225,000,000.
SECTION 5. ADDITION OF NOTE PURCHASE TERMINATION EVENT. The
following event is added as a new clause (j) to Section 2.08 of the Note
Purchase Agreement as an additional "Note Purchase Termination Event":
(j) a Change of Control shall have occurred without the consent of
the Administrative Agent.
SECTION 6. ADDITIONAL OFL COVENANT. The following new OFL
covenant is added as new Section 9.07 to the Note Purchase Agreement and
reads as follows:
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.
(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.
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SECTION 7. AMENDMENT TO NOTICE OF INCREMENTAL PURCHASE. The
Notice of Incremental Purchase, included as Exhibit D to the Note Purchase
Agreement, is hereby amended and now reads as set forth in the Exhibit D
attached to this Amendment.
SECTION 8. CONSENT TO AMENDMENT TO SALE AND SERVICING AGREEMENT
AND PURCHASE AGREEMENT. The Purchaser hereby consents, pursuant to Sections
8.06 and 9.06 of the Note Purchase Agreement, to 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 to this
Amendment as Appendices A and B.
SECTION 9. 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 10. EFFECTIVENESS. This Amendment shall become effective
as of January 17, 1997, upon receipt by the Administrative Agent of the
following: (a) executed counterparts of this Amendment; (b) an executed copy
of the Third Amendment and Consent Relating to DFC Asset Purchase Agreement,
dated as of the date hereof, evidencing the extension of the commitment terms
and the reduction of the commitment amounts of the DFC Purchasers; (c) an
executed copy of the Second Amendment and Consent Relating to Certificate
Purchase Agreement among the Seller, OFL, the "Purchasers" named therein and
Xxxxxx Guaranty Trust Company of New York; (d) executed counterparts of each
of Amendment No. 3 to the Sale and Servicing Agreement and Amendment No. 3 to
Receivables Purchase Agreement, each 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
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as of the date hereof; (f) opinions of counsel to each of OFL, the Seller and
ORFC II, dated as of the date hereof, to the effect that (i) as to OFL and
ORFC II, this Amendment and the Amendments referenced in clauses (b) through
(d) of this Section 13 have been duly authorized, executed and delivered and
(ii) as to OFL, the Seller and ORFC II, such Amendments and the Agreements
amended thereby are enforceable obligations of the Seller, OFL and ORFC II,
as applicable; (g) an executed copy of the Amendment of DFC Fee Letter dated
the date hereof; and (h) confirmation by each of S&P and Xxxxx'x of the
then-current ratings of the Commercial Paper Notes.
SECTION 11. 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 12. 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 13. 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: /s/ [illegible]
____________________________________
Name:
Title:
OLYMPIC FINANCIAL LTD.
By:_____________________________________
Name:
Title: Treasurer
DELAWARE FUNDING CORPORATION,
as Purchaser
By: Xxxxxx Guaranty Trust
Company of New York,
as attorney-in-fact for
Delaware Funding Corporation
By:______________________________________
Name:
Title:
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK,
as Administrative Agent
By:______________________________________
Name:
Title:
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EXHIBIT D
to Note
Purchase Agreement
Form of Notice of
Incremental Purchase or Repayment/Redemption
Olympic Automobile Receivables Trust, 1996-A
Variable Funding Notes
A. Proposed Incremental Purchase or
Repayment/Redemption Date: __________
B. Certificate Balance of Investor Certificates $__________
C. Outstanding Amount of Notes (prior to giving
effect to Incremental Purchase or
Repayment/Redemption, as applicable, on date
hereof) $__________
D. Amount of requested Incremental Purchase
(lesser of minimum amount of $__________ or
remaining DFC Purchase Commitment) $__________
E. Repayment/Redemption Amount $__________
F. Outstanding Amount of Notes (after giving
effect to Incremental Purchase or
Repayment/Redemption, as applicable, on date
hereof) $__________
G. Facility Limit $__________
H. Remaining Facility Limit $__________
I. 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 ____________%
J. 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. II ("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 Note
Purchase Agreement dated as of December 28, 1995, as
amended (the "Note Purchase Agreement"), by and among the
Trust, OFL, in its individual capacity and as servicer of
the Receivables, Delaware Funding Corporation 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 Note 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.
5. The Incremental Purchase Conditions specified in
Section 2.03(a) of the Note Purchase Agreement have been
satisfied and/or will be satisfied as of the applicable
Incremental Purchase Date.
D-2
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: /s/ [illegible]
____________________________
Name:
Title:
OLYMPIC FINANCIAL LTD.
By:
____________________________
Name:
Title: Treasurer
DELAWARE FUNDING CORPORATION,
as Purchaser
By: Xxxxxx Guaranty Trust
Company of New York,
as attorney-in-fact for
Delaware Funding Corporation
By: -------------------------------
Name:
Title:
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK,
as Administrative Agent
By: -------------------------------
Name:
Title:
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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:
OLYMPIC FINANCIAL LTD.
By:/s/ Xxxxxxx X. Xxxxxxx
_________________________________
Name: Xxxxxxx X. Xxxxxxx
Title: Treasurer
DELAWARE FUNDING CORPORATION,
as Purchaser
By: Xxxxxx Guaranty Trust
Company of New York,
as attorney-in-fact for
Delaware Funding Corporation
By:_________________________________
Name:
Title:
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK,
as Administrative Agent
By:_________________________________
Name:
Title:
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(i) The Collateral Agent, by the execution hereof, acknowledges receipt
of the Pledged Shares on behalf of Financial Security.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Pledge Agreement on the date first above written.
OLYMPIC FINANCIAL LTD.
By:_________________________________
Name:
Title:
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
as Collateral Agent
By:_________________________________
Name:
Title:
FINANCIAL SECURITY ASSURANCE INC.
By: /s/ [illegible]
_________________________________
Name:
Title:
