EXECUTION COPY
ARCADIA AUTOMOBILE RECEIVABLES WAREHOUSE TRUST
U.S. $400,000,000 FLOATING RATE VARIABLE FUNDING
FSA INSURED
AUTOMOBILE RECEIVABLES-BACKED NOTES
AMENDED AND RESTATED
NOTE PURCHASE AGREEMENT
DATED AS OF JULY 21, 1998
TABLE OF CONTENTS
PAGE
SECTION 1. The Notes............................................................ 2
SECTION 2. Effective Date, Exchange and Purchase; Funding of Note Increases..... 3
SECTION 3. Delivery and Payment................................................. 3
SECTION 4. Issuer's Representations, Warranties and Covenants................... 4
SECTION 5. Purchaser Representations............................................ 6
SECTION 6. Conditions of Purchaser's Obligations................................ 8
SECTION 7. Expenses............................................................. 9
SECTION 8. Definitions.......................................................... 10
SECTION 9. Successors and Assigns............................................... 11
SECTION 10. Indemnification...................................................... 12
SECTION 11. Increased Costs...................................................... 13
SECTION 12. Notices.............................................................. 14
SECTION 13. Counterparts......................................................... 14
SECTION 14. Entire Agreement..................................................... 15
SECTION 15. Governing Law........................................................ 15
SECTION 16. Severability of Provisions........................................... 15
SECTION 17. Survival............................................................. 15
SECTION 18. Limited Recourse..................................................... 15
SECTION 19. No Proceedings....................................................... 15
SECTION 20. Trial By Jury Waived................................................. 15
SECTION 21. Matters Relating to Agents and Administrative Agent.................. 16
SECTION 22. Limitation of Liability.............................................. 17
ARCADIA FINANCIAL, LTD.
0000 Xxxxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
ARCADIA AUTOMOBILE RECEIVABLES WAREHOUSE TRUST
0000 Xxxxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
__________________________
AMENDED AND RESTATED
NOTE PURCHASE AGREEMENT
__________________________
Dated as of July 21, 1998
Receivables Capital Corporation
c/o Bank of America National Trust
and Savings Association
as RCC Agent
Asset Securitization Group
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Bank of America National Trust
and Savings Association
as RCC Agent
and as Administrative Agent
Asset Securitization Group
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Delaware Funding Corporation
c/o X. X. Holdings Corporation
Ropes & Xxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
Xxxxxx Guaranty Trust Company of
New York, as DFC Agent
000 Xxxxxxx Xxxxxxxxxx Xxxx
Xxxxxx, Xxxxxxxx 00000-0000
Attention: Asset Finance Group
Ladies and Gentlemen:
The undersigned, Arcadia Automobile Receivables Warehouse Trust, a
Delaware business trust (the "ISSUER"), and Arcadia Financial Ltd., a
Minnesota corporation ("AFL"), propose to enter into with you this Amended
and Restated Note Purchase Agreement which supersedes in its entirety the
Note Purchase Agreement dated as of December 3, 1996, as previously amended,
among AFL, Arcadia Receivables Conduit Corp. (the "ORIGINAL ISSUER"),
Receivables Capital Corporation and Bank of America National Trust and
Savings Association, and to that end, hereby agree with you as follows:
SECTION 1. THE NOTES. On the Effective Date, the Issuer proposes to
deliver to (i) Receivables Capital Corporation ("RCC") in exchange for the
Floating Rate Variable Funding Automobile Receivables-Backed Note (the
"CURRENTLY OUTSTANDING NOTE") held by RCC, a Floating Rate Variable Funding
Automobile Receivables-Backed Note (the "RCC NOTE") in the maximum authorized
principal amount outstanding at any time of $ 225,000,000 (the "RCC PURCHASE
LIMIT") and (ii) Delaware Funding Corporation ("DFC") (each of RCC and DFC, a
"PURCHASER" and collectively, the "PURCHASERS"), a Floating Rate Variable
Funding Automobile Receivables-Backed Note (the "DFC NOTE"; each of the RCC
Note and the DFC Note, a "NOTE"; and collectively, the RCC Note and the DFC
Note, the "NOTES") in the maximum authorized principal amount outstanding at
any time of $175,000,000 (the "DFC PURCHASE LIMIT"). Subject to the terms
and conditions hereof, the Purchasers agree to fund increases in the
outstanding principal amount of their respective Notes (each, a "NOTE
INCREASE", and the principal amount of any such Note Increase, the "NOTE
INCREASE AMOUNT"), from time to time during the Purchase Period, in an
aggregate maximum authorized amount to be outstanding at any time (the
"MAXIMUM AUTHORIZED AMOUNT") of U.S. $400,000,000.
The Currently Outstanding Note was issued prior to the Effective Date,
and the Notes shall be issued by the Issuer on the Effective Date, pursuant
to the Amended and Restated Indenture, dated as of July 21, 1998 (as from
time to time amended, supplemented or modified, the "INDENTURE"), between the
Issuer and Norwest Bank Minnesota, National Association, as trustee (in such
capacity, the "TRUSTEE") and as Collateral Agent (as defined in the
Indenture).
The Indenture provides for Note Increases from time to time upon the
terms and conditions set forth therein. On each day on which Note Increases
are to occur and be funded hereunder, each Purchaser's Note will have a Note
Increase Amount equal to such Purchaser's Purchase Percentage of the total
Note Increase Amount effected by the Issuer on such day. Each Purchaser's
Purchase Percentage of each Note Increase Amount shall be recorded on the
grid attached to such Purchaser's Note. Each Note issued to a Purchaser: (i)
bears interest (subject to conversion to a fixed rate at the option of the
related Agent upon the occurrence of an Amortization Event) at a fluctuating
rate per annum equal to the Note Interest Rate (as defined in the Indenture)
for such Note; (ii) can be funded by Note Increases in a minimum amount of
$7,000,000 and any higher amount on any Purchase Date (as defined below), and
(iii) is subject to prepayment at the option of the Issuer as provided in the
Indenture. Each Note shall be issued in the form of a fully registered
security in certificated form (as contemplated by Article VIII of the New
York Uniform Commercial Code).
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The Notes are secured by a revolving pool of automobile receivables
originated by AFL and sold by AFL to its wholly-owned subsidiary, Arcadia
Receivables Finance Corp. ("ARFC"), and by ARFC to the Issuer, and by
collections received in respect thereof. Payment of principal and interest
on the entire Maximum Authorized Amount of Notes is insured by Financial
Security Assurance Inc. ("FSA") under a financial guaranty insurance policy
(the "POLICY") dated December 3, 1996, Endorsement No. 1 to the Policy, dated
December 3, 1996, Endorsement No. 2 to the Policy, dated August 4, 1997,
Endorsement No. 3 to the Policy, dated November 14, 1997, and Endorsement No.
4 to the Policy, dated July 21, 1998.
The Issuer, the Original Issuer, the RCC Agent, the Administrative Agent,
the DFC Agent, AFL, ARFC and the Trustee have entered into an Amended and
Restated Sale and Servicing Agreement, dated as of July 21, 1998 (as from
time to time amended, supplemented or modified, the "SALE AND SERVICING
AGREEMENT"), which provides for the sale of Receivables from time to time by
ARFC to the Trust, the servicing of the Receivables and certain other matters.
SECTION 2. EFFECTIVE DATE, EXCHANGE AND PURCHASE; FUNDING OF NOTE
INCREASES. On the Effective Date, RCC shall receive its RCC Note in exchange
for the Currently Outstanding Note and DFC shall receive its DFC Note.
During the Purchase Period and subject to the terms and conditions of, and in
reliance upon the representations, warranties and covenants set forth in,
this Agreement, the Purchasers agree to fund, from time to time on each date
as specified in Section 3 hereof (each, a "PURCHASE DATE") the Note Increase
on such Purchase Date in an amount of the Note Increase Amount up to an
aggregate principal amount at any time outstanding not to exceed the Maximum
Authorized Amount, at a purchase price equal to 100% of such Note Increase
Amount (the "PURCHASE PRICE"). Each Purchaser shall fund its Purchase
Percentage of a Note Increase Amount on any day and shall pay its Purchase
Percentage of the Purchase Price. No Purchaser shall be required to fund a
Note Increase Amount in excess of its Purchase Limit.
SECTION 3. DELIVERY AND PAYMENT. The Issuer will provide each Agent with
written notice of each Purchase Date and of the Note Increase Amount to be
funded on such Purchase Date no later than 12:00 noon (Minneapolis, Minnesota
time) one Business Day prior to the proposed Purchase Date; PROVIDED, that if
the Purchase Price for the Note Increase Amount on a Purchase Date is less
than or equal to $15,000,000, then such notice may be made no later than
11:00 a.m., New York City time on such Purchase Date; PROVIDED FURTHER, that
if such notice is given on a Purchase Date, the Purchasers will not be
obligated to fund the Note Increase Amount on such Purchase Date unless the
Purchasers are able to issue and sell their respective Commercial Paper Notes
in an amount sufficient to fund such Note Increase Amount, and AFL and the
Issuer agree to hold harmless the Purchasers for failing to effect a funding
on such Purchase Date. Each Note Increase shall be recorded on the grid
attached to each Purchaser's Note by the applicable Agent on each Purchase
Date. The notation of the Note Increase shall be made against payment by
wire transfer of immediately available funds to the account of Norwest Bank
Minnesota, National Association as Trustee for Arcadia Receivables Conduit
Warehouse, Clearing Account #0000000, Norwest Bank Minnesota, National
Association, ABA # 000000000, for further credit to Arcadia Automobile
Receivables Warehouse Trust A-C # 13284501 in the amount of the Purchase
Price. The Administrative Agent agrees to notify the RCC Agent and the DFC
Agent of the receipt of a Purchase Date notice by 2:00 p.m. (New York
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City time) on the day received by the Administrative Agent. Each Agent
agrees to collect the Purchase Price due or any Purchase Date from its
related Purchaser.
SECTION 4. ISSUER'S REPRESENTATIONS, WARRANTIES AND COVENANTS. The
Issuer represents and warrants to, and agrees with, each Purchaser, the
Administrative Agent, the RCC Agent and the DFC Agent as of the date hereof
and as of each Purchase Date, as follows:
(a) The Issuer is a business trust duly organized, validly existing and
in good standing under the laws of the State of Delaware.
(b) The Issuer has all requisite power and authority necessary to enter
into this Agreement and the Basic Agreements, to offer, sell and deliver the
Notes and to perform its obligations hereunder and thereunder; the Issuer has
taken all corporate action required to authorize the execution and delivery
of this Agreement, the Basic Agreements and the Notes, the offer, sale and
delivery of the Notes and the performance of all obligations to be performed
by it hereunder and under the Basic Agreements and the Notes; this Agreement
and the Basic Agreements to which the Issuer is a party have been duly
authorized, executed and delivered by the Issuer and constitute, and each
Note when purchased by a Purchaser will have been duly authorized, executed
and delivered and will constitute, the legal, valid and binding obligation of
the Issuer, enforceable against the Issuer in accordance with its terms,
subject to (i) limitations on enforceability imposed by bankruptcy,
insolvency, reorganization, arrangement, moratorium or other similar laws
relating to or affecting the enforcement of creditors' rights generally, and
(ii) general principles of equity, regardless of whether such enforceability
is considered in a proceeding in equity or at law.
(c) Neither the authorization, execution, sale, delivery or performance
of the Notes or the authorization, execution, delivery or performance of this
Agreement or the Basic Agreements to which the Issuer is a party, nor the
consummation of any of the transactions contemplated herein or therein, nor
the execution, delivery or performance of the terms of this Agreement, the
Notes or any Basic Agreement, will result in the breach of any term or
provision of the Certificate of Trust of the Issuer, or conflict with, result
in a breach or violation of, or the acceleration of, indebtedness under, or
constitute a default under, the terms of any indenture or other agreement,
instrument or arrangement to which the Issuer is a party or by which it is
bound, or any statute or regulation applicable to the Issuer or any order
applicable to it of any court, regulatory body, administrative agency or
governmental body having jurisdiction over it.
(d) With the exception of applicable blue-sky or state securities
regulations (as to which no representation is made), no consent, approval,
authorization of, registration or filing with, or notice to, any governmental
or regulatory authority, agency, department, commission, board, bureau, body
or instrumentality was or is required for the execution, delivery or
performance of or compliance by the Issuer with this Agreement, the Notes or
any Basic Agreement or the offer, sale, delivery or performance of the Notes,
or the consummation by the Issuer of any other transaction contemplated by
this Agreement, the Notes or any Basic Agreement, or such consent, approval
or authorization has been obtained, or such registration, filing or notice
has been made (and, in either such case, copies thereof delivered to you and
your counsel). No tax, assessment or other governmental charge is or will
become payable as a result
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of (i) the execution, delivery or performance of this Agreement or any Basic
Agreement, or (ii) the execution, sale, delivery or performance of any Note,
or (iii) except for taxes imposed on the net income of a Purchaser with
respect to interest on the Notes, the receipt or non-receipt of any payment
of principal or interest on any Note (or in respect thereof under the Policy).
(e) There is no action, suit or proceeding pending, or investigation
of, the Issuer, pending or, to the best of the Issuer's knowledge after due
inquiry, threatened, against the Issuer before any court, administrative
agency or other tribunal which, (i) either individually or in the aggregate,
could, if adversely determined, result in any material adverse change in the
business, operations, financial condition, prospects, properties, or assets
of the Issuer or in any impairment of the right or ability of the Issuer to
carry on its business substantially as now conducted, (ii) asserts the
invalidity of this Agreement, any Note or any of the Basic Agreements, (iii)
seeks to prevent the issuance, sale or purchase of the Notes or the
consummation of any of the transactions contemplated by this Agreement or any
of the Basic Agreements or (iv) could materially and adversely affect the
performance by the Issuer of its obligations under, or the validity or
enforceability of, this Agreement, any of the Notes or any of the Basic
Agreements.
(f) The Issuer is not in default in the performance, observance or
fulfillment of any of the obligations, covenants or conditions contained in,
and is not otherwise in default under, (i) any law or statute applicable to
it, or (ii) any judgment, decree, writ, injunction, order, award or other
action of any court or governmental authority or arbitrator or any order,
rule or regulation, of any federal, state, county, municipal or other
governmental or public authority or agency having or asserting jurisdiction
over it or any of its properties, or (iii) (x) any indebtedness or any
instrument or agreement under or pursuant to which any such indebtedness has
been, or could be, issued or incurred, or (y) any other instrument or
agreement to which it is a party or by which it is bound or any of its
properties is affected including, without limitation, the Basic Agreements
which, (A) either individually or in the aggregate, could result in any
material adverse change in the business, operations, financial condition,
prospects, properties, or assets of the Issuer or in any impairment of the
right or ability of the Issuer to carry on its business substantially as now
conducted or (B) could materially and adversely affect the performance by the
Issuer of its obligations under, or the validity or enforceability of, this
Agreement, any of the Notes or any of the Basic Agreements.
(g) Neither the Issuer nor, to the best of the Issuer's knowledge,
anyone acting on behalf of the Issuer, has offered, transferred, pledged,
sold or otherwise disposed of any Note or any interest in any Note to, or
solicited any offer to buy or accept a transfer, pledge or other disposition
of any Note or any interest in any Note from, or otherwise approached or
negotiated with respect to any Note or any interest in any Note with, any
person in any manner, or made any general solicitation by means of general
advertising or in any other manner, or taken any other action, which would
constitute a public distribution of the Notes under the Securities Act of
1933, as amended (the "1933 ACT"), or which would render the disposition of
any Note a violation of Section 5 of the 1933 Act or any state securities
laws, or require registration or qualification pursuant thereto or require
registration of the Issuer under the Investment Company Act of 1940, as
amended, nor will the Issuer act, nor has the Issuer authorized or will it
authorize any person to act, in such manner with respect to any Note.
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(h) (i) The offer and sale of the Notes from the Issuer to the
Purchasers in the manner contemplated herein are transactions exempt from the
registration requirements of the 1933 Act and (ii) the Indenture is not
required to be qualified under the Trust Indenture Act of 1939, as amended.
The representation by the Issuer with respect to the sale from the Issuer to
the Purchasers in clause (i) of the preceding sentence is made upon and
subject to the accuracy of the representations made by you in Section 5(a)
hereof.
(i) The Issuer is not required, and will not be required as a result of
the offer and sale of the Notes under the circumstances contemplated by this
Agreement or the other transactions contemplated by this Agreement and the
Basic Agreements, to register as an "investment company" under the Investment
Company Act of 1940, as amended (the "1940 ACT"), and the Issuer is not
"controlled" by an "investment company" as defined in the 1940 Act.
(j) Each Note purchased hereunder by a Purchaser will have been duly
authorized, executed and delivered by the Issuer, will be entitled to the
benefit of the security provided for in the Indenture, will bear interest and
mature and be subject to prepayment all as specified in Section 1 hereof and
will, as to both principal and interest, be fully and unconditionally insured
under the Policy.
(k) The Issuer further agrees that it will not permit any amendment,
modification or waiver, which could in any way be materially adverse to the
Noteholders, to any of the provisions of any of the Basic Agreements without
the prior written consent of the Administrative Agent (acting at the
direction of the RCC Agent and the DFC Agent) , it being agreed that a waiver
of any Event of Default under the Sale and Servicing Agreement or of any
Amortization Event materially adversely affects the Noteholders.
(l) The Issuer will treat the Notes as debt of the Issuer for federal
income and state and local income and franchise tax purposes.
SECTION 5. PURCHASER REPRESENTATIONS.
This Agreement is made with each of you in reliance upon your
representation to the Issuer, which by your acceptance hereof you confirm,
that you understand that the Notes have not been and will not be registered
under the 1933 Act in reliance upon the exemption provided in Section 4(2) of
the 1933 Act or registered or qualified under the securities or "Blue Sky"
laws of any jurisdiction and may not be resold or otherwise pledged or
transferred except in a transaction which is exempt from the registration
requirements of the 1933 Act (and, in that regard each Purchaser hereby
represents that any Notes purchased by it (or by the RCC Agent or DFC Agent,
as the case may be, on behalf of its related Purchaser) hereunder will be
purchased for its own account and not with a view to distribution thereof);
PROVIDED, that, (i) the disposition of your property shall at all times be
within your control; and (ii) it is recognized and agreed that you may
transfer your rights and interests under the Notes and herein to one or more
liquidity purchasers ("LIQUIDITY PURCHASERS") under, in the case of RCC, an
Amended and Restated Liquidity Asset Purchase Agreement dated as of July 21,
1998 (the "RCC ASSET PURCHASE AGREEMENT") among the Liquidity Purchasers from
time to time party thereto, RCC and Bank of
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America National Trust and Savings Association, as Administrator and
Liquidity Agent and, in the case of DFC, the Asset Purchase Agreement dated
as of July 21, 1998, by and among DFC, the Liquidity Purchasers from time to
time party thereto, and Xxxxxx Guaranty Trust Company of New York, as DFC
Agent and agent for the Liquidity Purchasers (the "DFC ASSET PURCHASE
AGREEMENT", with the RCC Asset Purchase Agreement, the "LIQUIDITY
AGREEMENTS"). Each Purchaser represents that the Liquidity Purchasers under
its related Liquidity Agreement will make the foregoing representations and
warranties with respect to any purchase of the Notes pursuant to such
Liquidity Agreement.
Each Purchaser hereby represents to the Issuer that:
(a) The Purchaser is a corporation duly organized, validly existing and
in good standing under the laws of the jurisdiction of its formation.
(b) The Purchaser has all requisite power (corporate and other) and
authority necessary to enter into this Agreement and to perform its
obligations hereunder; the Purchaser has taken all corporate action required
to authorize the execution and delivery of this Agreement and the performance
of all obligations to be performed by it hereunder; this Agreement has been
duly authorized, executed and delivered by the Purchaser, and constitutes the
legal, valid and binding agreement of the Purchaser, enforceable against the
Purchaser in accordance with its terms, subject to (i) limitations imposed by
bankruptcy, insolvency, reorganization, arrangement, moratorium or other laws
relating to or affecting the enforcement of creditors' rights generally, and
(ii) general principles of equity, regardless of whether such enforceability
is considered in a proceeding in equity or at law.
(c) Neither the purchase of the Notes nor the consummation of any of
the transactions contemplated herein by the Purchaser, nor the execution,
delivery or performance of the terms of this Agreement by the Purchaser, will
result in the breach of any term or provision of the certificate of
incorporation or by-laws of the Purchaser, or conflict with, result in a
breach or violation of or the acceleration of indebtedness under or
constitute a default under, the terms of any indenture or other agreement or
instrument to which the Purchaser is a party or by which it is bound, or any
statute or regulation applicable to the Purchaser or any order applicable to
it of any court, regulatory body, administrative agency or governmental body
having jurisdiction over it which materially and adversely affects, or may in
the future materially and adversely affect, (i) the ability of the Purchaser
to perform its obligations hereunder or (ii) the business, operations,
financial condition, prospects, properties or assets of the Purchaser.
(d) No consent, approval, authorization of, registration or filing
with, or notice to, any governmental or regulatory authority, agency,
department, commission, board, bureau, body or instrumentality was or is
required for the execution, delivery or performance of or compliance by the
Purchaser with this Agreement or the purchase of the Notes by the Purchaser,
or the consummation by the Purchaser of any other transaction contemplated
under this Agreement or such consent, approval or authorization has been
obtained or such registration, filing or notice has been made.
(e) There is no action, suit or proceeding against, or investigation
of, the Purchaser, pending or, to the best of the Purchaser's knowledge,
threatened, before any court,
7
administrative agency or other tribunal which, either individually or in the
aggregate, (i) may result in any material adverse change in the business,
operations, financial condition, prospects, properties, or assets of
Purchaser or in any impairment of the right or ability of the Purchaser to
carry on its business substantially as now conducted, or (ii) asserts the
invalidity of this Agreement or (iii) seeks to prevent the purchase of the
Notes or the consummation of any of the transactions contemplated by this
Agreement or (iv) could materially and adversely affect the performance by
the Purchaser of its obligations under, or the validity or enforceability of,
this Agreement.
(f) The Purchaser is not required, and will not be required as a result
of the purchase of the Notes under the circumstances contemplated by this
Agreement, to register as an "investment company" under the 1940 Act.
(g) On the date hereof, the Purchaser's commercial paper notes are
rated A-1+ by Standard & Poor's and P-1 by Moody's.
SECTION 6. CONDITIONS OF PURCHASER'S OBLIGATIONS.
(a) EACH FUNDING OF A NOTE INCREASE. The obligation of each of you to
fund your Purchase Percentage of a Note Increase on any Purchase Date shall
be subject to the fact that: (u) no Default or Event of Default shall have
occurred; (v) the Insurer Notice Date shall not have occurred; (w) the Note
Increase to be funded shall be in conformity with the description thereof
contained in Section 1 hereof; (x) the Purchase Period shall not have
expired; (y) the representations and warranties that are made on the part of
the Issuer and contained in this Agreement shall be true and correct, on and
as of such Purchase Date, as if made on and as of such Purchase Date; and (z)
the Issuer shall be in continuing compliance, in all material respects, with
all of its obligations hereunder and under the Basic Agreements and that the
Issuer and AFL are in continuing compliance in all material respects with
their obligations under the Fee Letters. The obligation of each of you to
fund your Purchase Percentage of a Note Increase shall also be subject to the
accuracy in all material respects, on and as of the date of such funding, of
the representations and warranties contained herein and of the statements
made by the Issuer in any certificates furnished pursuant to the provisions
hereof. Each funding of a Note Increase hereunder shall constitute a
representation and warranty by the Issuer that all of the above conditions
are satisfied on and as of the respective Purchase Date.
(b) EFFECTIVE DATE. The obligation of RCC to accept the exchange of
the RCC Note for the Currently-Outstanding Note and of DFC to purchase and
pay for the DFC Note on the Effective Date shall be subject to the following
additional conditions:
(i) Each Agent shall have received and had an opportunity to review
the Basic Agreements (and, the respective amendments, appendices and
exhibits thereto) and the form of Notes, and each of such documents shall
be in form and substance satisfactory to the RCC Agent and the DFC Agent.
(ii) Fully executed Endorsement No. 4 to the Policy shall have been
delivered to the Administrative Agent and timely payment, as and when due,
of all principal of and interest on the Notes shall be fully and
unconditionally insured under the Policy.
8
(iii) The Issuer shall have complied in all material respects with all
the agreements and satisfied all the conditions on its part to be
performed or satisfied by it on or prior to the Effective Date under this
Agreement.
(iv) Each of the Basic Agreements shall have been duly authorized,
executed and delivered by each of the parties thereto, shall be in full
force and effect and shall constitute a legal, valid and binding agreement
of each of the parties thereto, enforceable against each of them in
accordance with its terms, subject, with respect to enforceability, to
bankruptcy, insolvency, reorganization or other similar laws affecting the
enforceability of creditors' rights generally and to general principles of
equity regardless of whether enforcement is sought in a proceeding in
equity or at law, and no event shall have occurred which constitutes or,
with the passage of time or with notice or both, would constitute a
default thereunder, and each Agent shall have received two fully executed
copies of each of the Basic Agreements.
(v) The Administrative Agent shall have received opinions of counsel
(or reliance letters with respect to certain opinions previously rendered)
to the Issuer, AFL, ARFC, FSA, the Owner Trustee and the Indenture
Trustee, each dated the Effective Date, and such opinions shall be in
form, scope and substance satisfactory to the RCC Agent and the DFC Agent.
(vi) All proceedings in connection with the transactions contemplated
by this Agreement and the Basic Agreements and all documents incident
hereto and thereto shall be satisfactory in form and substance to the RCC
Agent and the DFC Agent, and each Agent shall have received such
information, certificates and documents as either Agent may request.
(vii) The Administrative Agent shall have received a certificate from
AFL dated the date hereof confirming that (y) its representations and
warranties contained in the Basic Agreements are true and correct in all
material respects on and as of the Effective Date and (z) as of the
Effective Date, no Event of Default or Servicer Termination Event has
occurred under the Sale and Servicing Agreement and to the best knowledge
of AFL, there is no set of circumstances existing on the date hereof that
with the passage of time would constitute such an Event of Default or
Servicer Termination Event.
(viii) The Administrative Agent shall have received from each of the
Issuer, AFL, ARFC, FSA, the Owner Trustee and the Indenture Trustee copies
of the certificate of trust, charter, by-laws, board resolutions,
signature and incumbency and other related trust and/or corporate matters,
as applicable, of those respective Persons, in form and substance
acceptable to the RCC Agent and the DFC Agent, together with copies of the
Officers' Certificates with respect thereto delivered on the Effective
Date.
(ix) The Indenture shall be in form and substance satisfactory to
each Agent, and each Agent shall have received two true and complete
copies thereof.
9
SECTION 7. EXPENSES. The Issuer and AFL shall, jointly and severally, be
obligated to pay on demand to (i) each Purchaser, the RCC Agent and the DFC
Agent all reasonable costs and expenses in connection with the preparation,
execution, and delivery of the Basic Agreements and any other documents to be
delivered in connection therewith, including, without limitation, the
reasonable fees and expenses of counsel for each Purchaser and each Agent,
and (ii) each Purchaser and each Agent all reasonable costs and expenses,
including, without limitation, the reasonable fees and expenses of counsel
for each Purchaser and each Agent, in connection with the enforcement of any
Basic Agreement or any document delivered in connection therewith.
SECTION 8. DEFINITIONS. For purposes of this Agreement, except as
otherwise expressly provided or unless the context otherwise requires:
(a) The term "AGENT" means the RCC Agent or the DFC Agent, as the context
requires;
(b) the term "ADMINISTRATIVE AGENT" means Bank of America National
Trust and Savings Association and its successors and assigns, as
administrative agent for the Purchasers and the Agents;
(c) the term "BASIC AGREEMENTS" shall mean this Agreement, the Trust
Agreement, the Administration Agreement, the Indenture, the Sale and
Servicing Agreement, the Purchase Agreement, the Security Agreement, the
Lockbox Agreement, the Custodian Agreement, the Policy, the Spread Account
Agreement, the Fee Letters, the Assignment Agreement and the Insurance
Agreement;
(d) the term "CP RATE" means, with respect to either Purchaser, for any
period and with respect to any portion of the principal amount of the Notes
as to which such Purchaser's funding of the purchase or carrying thereof is
being provided by such Purchaser's Commercial Paper Notes, the rate of
interest per annum determined in arrears in good faith by the applicable
Agent to reflect such Purchaser's cost of funding the purchase or carrying of
such portion of the Notes, which shall be equal to the weighted daily average
interest rate payable in respect of such Commercial Paper Notes during such
period (determined in the case of discount commercial paper notes by
converting the discount to an interest bearing equivalent rate per annum),
plus applicable placement fees and commissions, but excluding any other fees
related to such funding;
(e) the term "DFC AGENT" means Xxxxxx Guaranty Trust Company of New
York, as agent for DFC and the Liquidity Purchasers under DFC's Liquidity
Agreement;
(f) the term "EFFECTIVE DATE" means the date on which the conditions
set forth in Section 6(b) hereof are satisfied;
(g) the term "FEE LETTERS" shall mean, collectively, the Fee Letter
dated as of July 21, 1998 among AFL, RCC and the RCC Agent, and the Fee
Letter dated as of July 21, 1998, among the Issuer, AFL and the DFC Agent;
10
(h) the term "PROGRAM SUPPORT DOCUMENT" shall mean, for each Purchaser,
the Liquidity Agreement and any other agreement entered into by any other
Program Support Provider providing for the issuance of one or more letters of
credit for the account of such Purchaser, the issuance of one or more surety
bonds for which such Purchaser is obligated to reimburse the applicable
Program Support Provider of the related Commercial Paper Notes (or any
interest therein) or the making of loans or other extensions of credit to the
Purchaser in connection with such Purchaser's securitization program,
together with any letter of credit, surety bond or other instrument issued
thereunder (but excluding any discretionary advance facility provided by such
Purchaser's Agent);
(i) the term "PURCHASE PERCENTAGE" shall mean 56.25% for RCC and 43.75%
for DFC, as either percentage may be revised from time to time with the prior
written consent of the Issuer, the RCC Agent and the DFC Agent;
(j) the term "PURCHASE PERIOD" shall mean the period from the date of
execution hereof to the earliest to occur of (i) July 20, 1999, (ii) the
commencement of the Amortization Period, (iii) the commitment of related
Liquidity Purchasers to purchase interests in the respective Notes from a
Purchaser under the related Liquidity Agreement shall expire and (iv) the
date specified by the Issuer with five Business Day's prior notice to the
Administrative Agent, each Agent, the Security Insurer, the Indenture Trustee
and the Rating Agencies;
(k) the term "RCC AGENT" means Bank of America National Trust and Savings
Association, as agent for RCC and the Liquidity Purchasers under RCC's Liquidity
Agreement;
(l) all capitalized terms used herein and not otherwise defined shall
have the meanings assigned thereto in the Sale and Servicing Agreement
(including by way of reference to other documents);
(m) terms defined in this Agreement include the plural as well as the
singular, and the use of any gender herein shall be deemed to include each
other gender;
(n) the words "herein," "hereof," "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
provisions; and
(o) the term "include" or "including" shall mean without limitation by
reason of enumeration.
SECTION 9. SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective
successors and assigns; PROVIDED, that the Issuer may not assign any of its
rights or obligations hereunder without the prior written consent of the
Purchasers. No provision of this Agreement shall in any way limit a
Purchaser's ability to assign all or any portion of its rights and
obligations hereunder to any related Liquidity Purchaser, to any related
Program Support Provider, or a related collateral agent under such
Purchaser's securitization program.
11
SECTION 10. INDEMNIFICATION. (a) Without limiting any other rights that
the Administrative Agent, a Purchaser, an Agent or any of their respective
Affiliates, employees, agents, successors, transfers or assigns (each, an
"INDEMNIFIED PARTY") may have hereunder or under applicable law, the Issuer
hereby agrees to indemnify each Indemnified Party from and against any and
all claims, damages, expenses, losses and liabilities (including fees and
expenses of counsel) (all of the foregoing being collectively referred to as
"INDEMNIFIED AMOUNTS") arising out of or resulting from this Agreement and
the Basic Agreements (whether directly or indirectly) or the ownership of the
Notes, or any interest therein, or in respect of any Receivable, excluding,
however, (i) Indemnified Amounts to the extent resulting from gross
negligence or willful misconduct on the part of such Indemnified Party, (ii)
any losses arising out of or relating to any non-payment of any Receivable,
or (iii) any overall net income tax es or franchise taxes imposed on such
Indemnified Party by the jurisdiction under the laws of which such
Indemnified Party is organized or any political subdivision thereof.
(b) Without limiting any other rights that the Indemnified Parties may
have hereunder or under applicable law, AFL hereby agrees to indemnify each
Ind emnified Party from and against any and all Indemnified Amounts for or
on account of or arising from or in connection with any breach of any rep
resentation, warranty or covenant of AFL in this Note Purchase Agreement or
any Basic Agreement or in any certificate or other written material
delivered pur suant hereto or thereto, excluding, however, (i) Indemnified
Amounts to the extent resulting from gross negligence or willful misconduct
on the part of such Indemnified Party and (ii) any overall net income taxes
or franchise taxes imposed on such Indemnified Party by the jurisdiction
under the laws of which such Indemnified Party is organized or any political
subdivision thereof.
(c) In order for an Indemnified Party to be entitled to any
indemnification provided for under this Agreement in respect of, arising out
of, or involving a claim made by any Person against the Indemnified Party (a
"THIRD PARTY CLAIM"), such Indemnified Party must notify the Issuer or AFL,
as applicable, in writing of the Third Party Claim within five Business Days
of receipt of a summons, complaint or other notice of the commencement of
litigation and within ten Business Days after receipt by such Indemnified
Party of any other written notice of the Third Party Claim. Thereafter, the
Indemnified Party shall deliver to the Issuer or AFL, as applicable, within a
reasonable time after the Indemnified Party's receipt thereof, copies of all
notices and documents (including court papers) received by the Indemnified
Party relating to the Third Party Claim.
(d) If a Third Party Claim is made against an Indemnified Party, (x)
the Issuer or AFL, as applicable, will be entitled to participate in the
defense thereof and, (y) if either so chooses, to assume the defense thereof
with counsel selected by the Issuer or AFL, as applicable, provided that in
connection with such assumption (i) such counsel is not reasonably objected
to by the Indemnified Party and (ii) the Issuer or AFL, as applicable, first
admits in writing its liability to indemnify the Indemnified Party with
respect to all elements of such claim in full. Should the Issuer or AFL, as
applicable, so elect to assume the defense of a Third Party Claim, the Issuer
or AFL, as applicable, will not be liable to the Indemnified Party for any
legal expenses subsequently incurred by the Indemnified Party in connection
with the defense thereof. If the Issuer or AFL, as applicable, elects to
assume the defense of a Third Party Claim, the
12
Indemnified Party will (i) cooperate in all reasonable respects with the
Issuer or AFL in connection with such defense and (ii) not admit any
liability with respect to, or settle, compromise or discharge, such Third
Party Claim without the Issuer's or AFL's prior written consent, as the case
may be. If the Issuer or AFL, as applicable, shall assume the defense of any
Third Party Claim, the Indemnified Party shall be entitled to participate in
(but not control) such defense with its own counsel at its own expense. If
the Issuer or AFL, as applicable, does not assume the defense of any such
Third Party Claim, the Indemnified Party may defend the same in such manner
as it may deem appropriate, including settling such claim or litigation after
giving notice to the Issuer or AFL, as applicable, of such terms and the
Issuer or AFL, as applicable, will promptly reimburse the Indemnified Party
upon written request. Anything contained in this Note Purchase Agreement to
the contrary notwithstanding, the Issuer or AFL, as applicable, shall not be
entitled to assume the defense of any part of a Third Party Claim that seeks
an order, injunction or other equitable relief or relief for other than money
damages against the Indemnified Party.
SECTION 11. INCREASED COSTS. (a) If the Purchaser, any Liquidity
Purchaser, any other Program Support Provider or any of their respective
Affiliates (each an "AFFECTED PERSON") determines that the existence of or
compliance with (i) any law or regulation or any change therein or in the
interpretation or application thereof, in each case adopted, issued or
occurring after the date hereof or (ii) any request, guideline or directive
from any central bank or other Governmental Authority (whether or not having
the force of law) issued or occurring after the date of this Agreement
affects or would affect the amount of capital required or expected to be
maintained by such Affected Person and such Affected Person determines that
the amount of such capital is increased by or based upon the existence of any
commitment to make purchases of or otherwise to maintain the investment in
the Notes or the applicable Liquidity Agreement or any other applicable
Program Support Document, then, upon demand by such Affected Person (with a
copy to the applicable Agent), the Issuer agrees to immediately pay to such
Agent, for the account of such Affected Person, from time to time as
specified by such Affected Person, additional amounts sufficient to
compensate such Affected Person in the light of such circumstances, to the
extent that such Affected Person reasonably determines such increase in
capital to be allocable to the existence of any of such commitments. A
certificate as to such amounts submitted to the Issuer and such Agent by such
Affected Person shall be conclusive and binding for all purposes, absent
manifest error.
(b) If, due to either (i) the introduction of or any change in or in the
interpretation of any law or regulation or (ii) compliance with any guideline or
request from any central bank or other Governmental Authority (whether or not
having the force of law), there shall be any increase in the cost to any
Affected Person of agreeing to purchase or purchasing, or maintaining the
ownership of the Notes in respect of which interest is computed by reference to
the Offshore Rate or LIBOR, as applicable, then, upon demand by such Affected
Person, the Issuer agrees to immediately pay to such Affected Person, from time
to time as specified, additional amounts sufficient to compensate such Affected
Person for such increased costs. A certificate as to such amounts submitted to
the Issuer by such Affected Person shall be conclusive and binding for all
purposes, absent manifest error.
13
(c) Before giving any notice to the Issuer under this Section 11, the
Affected Person shall use commercially reasonable efforts to designate a
different office with respect to its purchase of Notes or its provision of
liquidity or credit sup port under the relevant Program Support Document if
such designation will avoid the need for giving such notice or making such
demand and will not, in the judgment of the Affected Person, be illegal or
otherwise disadvantageous to such Affected Person.
(d) Upon the receipt by the Issuer of a claim for reimbursement or
compensation under this Section 11 related to the ownership of a Note or any
interest therein by an Affected Person, and payment thereof hereunder shall
not be waived by such Affected Person, the Issuer may (i) request the
Affected Person to use its reasonable efforts to obtain a replacement bank,
financial institution or asset-backed commercial paper conduit, as
applicable, satisfactory to the Issuer to acquire and assume all or a
ratable part of all of such Affected Person's Note or interests therein (a
"REPLACEMENT PURCHASER"), (ii) request one or more of the other Noteholders
or Liquidity Purchasers to acquire and assume all or a part of such Affected
Person's Note or interests therein; or (iii) designate a Replacement
Purchaser. Any such designation of a Replacement Purchaser under CLAUSE (i)
or (iii) shall be subject to the prior written consent of each Agent (which
consent shall not be unreasonably withheld). Upon notice from the Issuer,
such Affected Person shall assign its Note or interests therein and its other
rights and obligations (if any) hereunder or a ratable share thereof to the
Replacement Purchaser or Replacement Purchasers designated by the Issuer for
a purchase price equal to the sum of the principal amount of the Notes or
interests therein so assigned and all accrued and unpaid interest thereon and
any other amounts (including fees) to which it is entitled hereunder or under
any Basic Agreement or other Program Support Document (including any fee
letters entered into in connection therewith); PROVIDED, that the Issuer
shall provide such Affected Person with an officer's certificate stating that
such Replacement Purchaser has advised the Issuer that it is not subject to,
or has agreed not to seek, such increased amount.
(e) The parties to this Agreement acknowledge that the payment rights
provided for in this Section 11 are not insured under the Policy.
SECTION 12. NOTICES. (a) All communications provided for or permitted
hereunder and under any other Basic Agreement shall be in writing and shall
be delivered, sent by overnight courier or mailed or transmitted by
telecopier and confirmed by a similar mailed writing, if to a Purchaser, or
the Administrative Agent, addressed to a Purchaser, the Administrative Agent
or an Agent, as applicable, at the addresses shown on page 1 of this
Agreement, or to such other address as a Purchaser, an Agent or the
Administrative Agent may have designated in writing to the Issuer, and if to
the Issuer, AFL or the Rating Agencies, to their respective addresses set
forth in the Sale and Servicing Agreement, or to such other address as the
Issuer or AFL may have designated in writing to a Purchaser.
(b) All such written communications shall, when so sent by overnight
courier, telecopied or mailed, be deemed given when delivered to the
overnight courier, when telephone confirmation of telecopy is received, or,
in the case of communications by mail, on the fourth Business Day following
deposit in the mails. All other written communications shall be deemed to
have been given upon receipt thereof.
14
SECTION 13. COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall constitute an original, but all of which
together shall constitute one instrument notwithstanding that all parties are
not signatories to the same counterparts.
SECTION 14. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement and understanding of the parties with respect to the matters and
transactions contemplated by this Agreement and supersedes any prior
agreement and understandings with respect to those matters and transactions.
SECTION 15. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO THE CONFLICT OF LAW PROVISIONS THEREOF. THE PARTIES HERETO SUBMIT
TO THE NON-EXCLUSIVE JURISDICTION OF ANY NEW YORK STATE OR UNITED STATES
FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN, THE CITY OF NEW YORK, OVER
ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF, OR RELATING TO, THIS
AGREEMENT, ANY NOTE OR ANY BASIC AGREEMENT AND HEREBY WAIVE ANY OBJECTION TO
THE VENUE OF ANY SUCH COURT AS WELL AS ANY CLAIM OF INCONVENIENT FORUM.
SECTION 16. SEVERABILITY OF PROVISIONS. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, the invalidity of any such covenant,
agreement, provision or term of this Agreement shall in no way affect the
validity or enforceability of the other provisions of this Agreement,
PROVIDED, HOWEVER, that if the invalidity of any covenant, agreement or
provision shall deprive any party of the economic benefit intended to be
conferred by this Agreement, the parties shall negotiate in good faith to
develop a structure the economic effect of which is as nearly as possible the
same as the economic effect of this Agreement.
SECTION 17. SURVIVAL. All representations, warranties and covenants
made by the Issuer herein shall be considered to have been relied upon by you
and shall survive the delivery to you of the Notes regardless of any
investigation made by you or on your behalf.
SECTION 18. LIMITED RECOURSE. This Agreement is solely a corporate
obligation of the Issuer, AFL, the Administrative Agent, each Agent and each
Purchaser. No recourse may be taken, directly or indirectly, under this
Purchase Agreement or any certificate or other writing delivered in
connection herewith against any stockholder, incorporator, employee, officer,
director or agent of the Issuer, AFL, the Administrative Agent, either
Purchaser or either Agent. The obligations of the Issuer hereunder shall be
payable solely out of the Trust Property.
SECTION 19. NO PROCEEDINGS. Each of the Issuer and AFL hereby agrees
that it will not institute or join with others in instituting against either
Purchaser, and each Purchaser hereby agrees that it will not institute or
join with others in instituting against the Issuer, a bankruptcy,
reorganization or analogous proceeding until at least 368 days after the
later of (i) the last maturing commercial paper note issued or to be issued
by such Purchaser matures and (ii) the last maturing Note issued or to be
issued by the Issuer matures.
SECTION 20. TRIAL BY JURY WAIVED. Each of the parties hereto waives, to
the fullest extent permitted by law, any right it may have to a trial by jury
in respect of any
15
litigation arising directly or indirectly out of, under or in connection with
this Agreement or any of the transactions contemplated hereunder.
SECTION 21. MATTERS RELATING TO AGENTS AND ADMINISTRATIVE AGENT.
(a) DFC hereby accepts the appointment of and authorizes the DFC Agent
to take such action as agent on its behalf and to exercise such powers as are
delegated to the DFC Agent by the terms hereof and any other Basic
Agreements, together with such powers as are reasonably incidental thereto.
RCC hereby accepts the appointment of and authorizes the RCC Agent to take
such action as agent on its behalf and to exercise such powers as are
delegated to the RCC Agent by the terms hereof and any other Basic
Agreements, together with such powers as are reasonably incidental thereto.
Each Purchaser and each Agent hereby accepts the appointment of and
authorizes the Administrative Agent to take such action as agent on its
behalf and to exercise such powers as are delegated to the Administrative
Agent by the terms hereof and the other Basic Agreements, together with such
powers as are reasonably incidental thereto. Each of the Agents and the
Administrative Agent reserves the right, in its sole discretion, to take any
actions, exercise any rights or remedies under this Note Purchase Agreement
and any Basic Agreements. Except for actions which the Administrative Agent
or either Agent is expressly required to take pursuant to this Note Purchase
Agreement or the applicable Liquidity Agreement, the Administrative Agent or
an Agent shall not be required to take any action which exposes the
Administrative Agent or such Agent to personal liability or which is contrary
to applicable law unless such Person shall receive further assurances to its
satisfaction of indemnification against any and all liability and expense
which may be incurred in taking or continuing to take such action. Each
Agent and the Administrative Agent agrees to give its respective Purchaser
and Liquidity Purchasers and the Agents, as applicable, prompt notice of each
notice and determination given to it by the Issuer, the Servicer, the Owner
Trustee or the Trustee, pursuant to the terms of this Note Purchase Agreement
or any Basic Agreement. Subject to clause (e) hereof or any Basic Agreement,
the appointment and authority of the Agents and the Administrative Agent
hereunder shall terminate after the Purchase Period upon the payment to each
Purchaser of all amounts owing to such Purchaser.
(b) The Administrative Agent agrees to provide to each Agent (i) prompt
notice of eac h notice the Administrative Agent (in its capacity as
Administrative Agent) receives pursuant to this Agreement or any of the other
Basic Agreements and (ii) copies of each written notice, certificate, report
or other document that the Administrative Agent (in its capacity as
Administrative Agent) receives hereunder or under any of the other Basic
Agreements, other than any document which is, in the reasonable judgment of
the Administrative Agent, immaterial.
(c) Neither the Agents nor the Administrative Agent nor any of their
respective directors, officers, agents or employees shall be liable for any
action taken or omitted to be taken by it or them as Agent or Administrative
Agent under or in connection with this Note Purchase Agreement or any Basic
Agreement, except for its or their own gross negligence or willful misconduct.
16
(d) Each Purchaser and Liquidity Purchaser acknowledges or is deemed to
have acknowledged that it has, independently and without reliance upon the
Administrative Agent or the Agents, and based on such documents and
information as it has deemed appropriate, made its own evaluation and
decision to enter into this Note Purchase Agreement and to purchase its Notes
or a portion thereof. Each Purchaser and Liquidity Purchaser also
acknowledges or is deemed to have acknowledged that it will, independently
and without reliance upon the Agents or the Administrative Agent, and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own decisions in taking or not taking action under this
Note Purchase Agreement or any Basic Agreement.
(e) Each Agent or the Administrative Agent may resign at any time by
giving thirty days' written notice thereof to the Purchasers, the other
Agents, the Administrative Agent, the Servicer, FSA and the Indenture
Trustee. Upon any such resignation, each Purchaser shall have the right to
appoint a related successor Agent and the Purchasers and the Agents shall
have the right to appoint a successor Administrative Agent approved by the
Issuer (which approval will not be unreasonably withheld or delayed). Upon
the acceptance of any appointment as Agent or Administrative Agent hereunder
by a successor Agent or Administrative Agent, such successor Agent or
Administrative Agent shall thereupon succeed to and become vested with all of
the rights, powers, privileges and duties of the retiring Agent or
Administrative Agent, as the case may be, and the retiring Administrative
Agent or Agent shall be discharged from its duties and obligations under this
Note Purchase Agreement.
(f) Each Agent (pro rata in accordance with its related Purchaser's
Purchase Percentage) hereby severally covenants and agrees to indemnify the
Administrative Agent, its directors, officers, officers, employees and agents
for, and hold the Administrative Agent, its directors, officers, employees
and agents harmless against, any loss, liability or expense (including the
costs and expenses of defending against any claim of liability) arising out
of or in connection with the Administrative Agent acting as Administrative
Agent hereunder or under any Basic Agreement, except such loss, liability or
expense as shall result from the gross negligence, bad faith or willful
misconduct of the Administrative Agent or its officers or agents. The
obligation of the Agents under this Section 21 shall survive the termination
of this Note Purchase Agreement or the resignation of the Administrative
Agent.
SECTION 22. LIMITATION OF LIABILITY. It is expressly understood and
agreed by the parties hereto that (a) this Agreement is executed and
delivered by Wilmington Trust Company, not individually or personally but
solely as Owner Trustee, in the exercise of the powers and authority
conferred and vested in it, (b) each of the representations, undertakings and
agreements herein made on the part of the Issuer is made and intended not as
a personal representation, undertaking or agreement by Wilmington Trust
Company but is made and intended for the purpose for binding only the Issuer,
(c) nothing herein contained shall be construed as creating any liability on
Wilmington Trust Company, individually or personally, to perform any covenant
either expressed or implied contained herein, all such liability, if any,
being expressly waived by the parties hereto and by any Person claiming by,
through or under such parties and (d) under no circumstances shall Wilmington
Trust Company be personally liable for the payment of any indebtedness or
expenses of the Issuer or be liable for the breach or failure of any
obligation, representation, warranty or covenant made or undertaken by the
Issuer under this Agreement or the Basic Agreements.
17
IN WITNESS WHEREOF, the Purchasers, the Administrative Agent, the
Agents, AFL and the Issuer have caused their names to be signed hereto by
their respective officers thereunto duly authorized as of the date first
above written.
ARCADIA AUTOMOBILE RECEIVABLES
WAREHOUSE TRUST
By: Wilmington Trust Company, not in its
individual capacity but solely as Owner
Trustee
By:
--------------------------------------
Name:
Title:
ARCADIA FINANCIAL LTD.
By:
--------------------------------------
Name:
Title:
The foregoing Agreement
is hereby accepted as of the
21st day of July, 1998:
RECEIVABLES CAPITAL CORPORATION
By:
------------------------------------
Name:
Title:
BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION,
as RCC Agent and Administrative Agent
By:
------------------------------------
Name:
Title:
[Signature Page to Amended and Restated Note Purchase Agreement]
DELAWARE FUNDING CORPORATION
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 DFC Agent
By:
------------------------------------
Name:
Title:
Acknowledgment and Consent:
ARCADIA RECEIVABLES CONDUIT
CORP
By:
------------------------------------
Name:
Title:
[Signature Page to Amended and Restated Note Purchase Agreement]
