INSTRUMENT OF RESIGNATION, APPOINTMENT AND ACCEPTANCE, dated as
of August 13, 1998, among ARCADIA FINANCIAL LTD. (formerly known as Olympic
Financial Ltd.), a corporation duly organized and existing under the laws of
the State of Minnesota, having its principal office at 0000 Xxxxxxxxxx Xxxxxx
Xxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000-0000 (the "Company"), NORWEST BANK
MINNESOTA, NATIONAL ASSOCIATION, a national banking association, having its
principal corporate trust xxxxxx xx Xxxxx xxx Xxxxxxxxx, Xxxxxxxxxxx,
Xxxxxxxxx 00000-0000 (the "Resigning Trustee"), and MARINE MIDLAND BANK, a
New York State banking corporation and trust company, having its principal
corporate trust office at 000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, 00000-0000 (the
"Successor Trustee");
RECITALS
There are currently issued and outstanding $19,700,000 in
aggregate principal amount of the Company's Subordinated Extendible Notes and
Subordinated Fixed-Term Notes (collectively, the "Notes") under an Indenture,
dated as of July 1, 1994, as amended and restated by the First Amendment and
Restatement dated as of April 28, 1995 (the "Indenture"), between the Company
and the Resigning Trustee.
The Resigning Trustee wishes to resign as Trustee under the
Indenture; the Company wishes to appoint the Successor Trustee to succeed the
Resigning Trustee as Trustee under the Indenture; and the Successor Trustee
wishes to accept appointment as Trustee under the Indenture.
NOW, THEREFORE, in consideration of the mutual covenants and
promises herein, the receipt and sufficiency of which is hereby acknowledged,
the Company, the Resigning Trustee and the Successor Trustee agree as follows:
ARTICLE ONE
THE RESIGNING TRUSTEE
SECTION 101. Pursuant to Section 7.08 of the Indenture, the
Resigning Trustee hereby notifies the Company that the Resigning Trustee is
hereby resigning as Trustee under the Indenture.
SECTION 102. The Resigning Trustee hereby represents and
warrants to the Successor Trustee that:
(a) To the best of the knowledge of the Trust Officers
of the Resigning Trustee assigned to its corporate trust
department, no Event of Default and no event which, after
notice or lapse of time or both, would become an Event of
Default, has occurred and is continuing under the Indenture.
(b) No covenant or condition contained in the
Indenture has been waived by the Resigning Trustee or by the
Holders of the percentage in aggregate principal amount of the
Notes required by the Indenture to effect any such waiver.
(c) There is no action, suit or proceeding pending or,
to the best of the knowledge of the Trust Officers of the
Resigning Trustee assigned to its corporate trust department,
threatened against the Resigning Trustee before any court or
governmental authority arising out of any action or omission
by the Resigning Trustee as Trustee under the Indenture.
SECTION 103. The Resigning Trustee hereby assigns, transfers,
delivers and confirms to the Successor Trustee all right, title and interest
of the Resigning Trustee in and to the trust under the Indenture and all the
right, powers and trusts of the Trustee under the Indenture. The Resigning
Trustee shall execute and deliver such further instruments and shall do such
other things as the Successor Trustee may reasonably require so as to more
fully and certainly vest and confirm in the Successor Trustee all the rights,
trusts and powers hereby assigned, transferred, delivered and confirmed to
the Successor Trustee.
SECTION 104. The Resigning Trustee agrees to pay or indemnify
the Successor Trustee and save the Successor Trustee harmless from and
against any and all costs, claims, liabilities, losses or damages whatsoever
(including the reasonable fees, expenses and disbursements of the Successor
Trustee's counsel and other advisors), that the Successor Trustee suffers or
incurs without negligence or bad faith on its part as a result of the
Successor Trustee accepting appointment and acting as Successor Trustee under
the Indenture, arising out of actions or omissions of the Resigning Trustee.
The Resigning Trustee will furnish to the Successor Trustee, promptly after
receipt, all papers with respect to any action the outcome of which would
make operative the indemnity provided for in this section. The Successor
Trustee shall notify the Resigning Trustee promptly of any claim for which it
may seek indemnity. The Resigning Trustee will have the right to elect to
provide its own defense in any such action.
ARTICLE TWO
THE COMPANY
SECTION 201. The Company hereby certifies that annexed hereto
marked Exhibit A is a copy of Board Resolutions duly adopted by the Board of
Directors of the Company, and in full force and effect on the date hereof
authorizing certain officers of the Company to; (a) accept the Resigning
Trustee's resignation as Trustee under the Indenture; (b) appoint the
Successor Trustee as Trustee under the Indenture; and (c) execute and deliver
such agreements and other instruments as may be necessary or desirable to
effectuate the succession of the Successor Trustee as Trustee under the
Indenture. The Company shall deliver a Secretary's Certificate of the
Secretary or an Assistant Secretary certifying as to the annexed Board
Resolutions.
SECTION 202. The Company hereby appoints the Successor Trustee
as Trustee under the Indenture and confirms to the Successor Trustee all the
rights, powers and trusts of the Trustee under the Indenture. The Company
shall execute and deliver such further instruments and shall do such other
things as the Successor Trustee may reasonably require so as to more fully
and certainly vest and confirm in the Successor Trustee all the rights,
trusts and powers hereby assigned, transferred, delivered and confirmed to
the Successor Trustee.
SECTION 203. Promptly after the execution and delivery of this
Instrument, the Company, on behalf of the Successor Trustee, shall cause a
notice, a form of which is annexed hereto marked Exhibit B, to be sent to
each Holder of the Notes as required by the provisions of Section 7.08 of the
Indenture.
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ARTICLE THREE
THE SUCCESSOR TRUSTEE
SECTION 301. The Successor Trustee hereby represents and
warrants to the Resigning Trustee and to the Company that the Successor
Trustee is qualified and eligible under the provisions of Section 7.10 of the
Indenture to act as Trustee under the Indenture.
SECTION 302. The Successor Trustee hereby accepts its
appointment as Trustee under the Indenture and shall hereby be vested with
all the rights, powers, trusts and duties of the Trustee under the Indenture.
ARTICLE FOUR
MISCELLANEOUS
SECTION 401. Except as otherwise expressly provided or unless
the context otherwise requires, all terms used herein which are defined in
the Indenture shall have the meanings assigned to them in the Indenture.
SECTION 402. This Instrument and the resignation, appointment
and acceptance effected hereby shall be effective as of the opening of
business on the date first above written upon the execution and delivery
hereof by each of the parties hereto.
SECTION 403. Notwithstanding the resignation of the Resigning
Trustee effected hereby, the Company shall remain obligated under Section
7.07 of the Indenture to compensate, reimburse and indemnify the Resigning
Trustee in connection with its trusteeship under the Indenture.
SECTION 404. This Instrument shall be governed by and
construed in accordance with the laws of the jurisdiction which govern the
Indenture and its construction.
SECTION 405. This Instrument may be executed in any number of
counterparts each of which shall be an original, but such counterparts shall
together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this
Instrument of Resignation, Appointment and Acceptance to be duly executed as
of the day and year first above written.
ARCADIA FINANCIAL LTD.
By /s/ Xxxx X. Xxxxxx
--------------------------------
Name: Xxxx X. Xxxxxx
Title: Executive Vice President
and Chief Financial Officer
NORWEST BANK OF MINNESOTA, N.A.
By /s/ Xxxxxx X. Xxxxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Assistant Vice President
MARINE MIDLAND BANK
By /s/ Xxxxx X. Xxxxx
--------------------------------
Name: Xxxxx X. Xxxxx
Title: Assistant Vice President
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