ASSET PURCHASE AGREEMENT
Dated as of December 28, 1995
X.X. XXXXXX DELAWARE, as purchaser agent (in such capacity, the
"AGENT"), and as agent for the purchasers of the Purchased Note (hereinafter
defined) (in such capacity, for the benefit of Delaware Funding Corporation and
the purchasers hereunder, as their interests may appear, the "ADMINISTRATIVE
AGENT"), and each of the parties (each an "APA PURCHASER") who has executed a
signature page to this Asset Purchase Agreement (this "ASSET PURCHASE
AGREEMENT") or an Assignment of Purchase Commitment in the form of Exhibit A
hereto agree as follows:
RECITALS
WHEREAS Olympic Financial Ltd. ("OFL"), as seller, and Olympic
Receivables Financial Corp. II ("ORFC II"), as buyer, have entered into a
Receivables Purchase Agreement and Assignment dated as of December 28, 1995 (the
"PURCHASE AGREEMENT") and will from time to time enter into assignment
agreements providing for the sale and assignment by OFL to ORFC II of a pool of
specified Receivables;
WHEREAS ORFC II, as seller, and Olympic Automobile Receivables
Warehouse Trust (the "TRUST"), as buyer, have entered into a Sale and Servicing
Agreement dated as of December 28, 1995 (the "SALE AND SERVICING AGREEMENT")
with OFL, in its individual capacity and as Servicer, and Norwest Bank
Minnesota, National Association, as Backup Servicer, and will from time to time
enter into transfer agreements providing for the sale and assignment by ORFC II
to the Trust of a pool of Specified Receivables;
WHEREAS the Trust has entered into an Indenture dated as of December
28, 1995 (the "INDENTURE") with Norwest Bank Minnesota, National Association, as
trustee (the "INDENTURE TRUSTEE"), providing for the issuance of the Variable
Funding Notes (the "NOTES");
WHEREAS the Administrative Agent, Delaware Funding Corporation
("DFC"), OFL, in its individual capacity and as Servicer, and the Trust have
entered into a Note Purchase Agreement dated as of December 28, 1995 (the "NOTE
PURCHASE AGREEMENT"), pursuant to which DFC through the Administrative Agent, as
agent for DFC, has purchased the Notes and has agreed to fund, from time to
time, increases in the principal balance (the "OUTSTANDING AMOUNT") of the Notes
(each, an "INCREMENTAL PURCHASE") (the "PURCHASED NOTE" or "PURCHASED
INTEREST");
WHEREAS DFC may from time to time sell undivided percentage interests
in the Purchased Note ("PERCENTAGE INTERESTS") to the APA Purchasers;
WHEREAS each APA Purchaser has agreed to purchase Percentage Interests
that from time to time may be offered for sale by the Administrative Agent on
behalf of DFC during the term of its Purchase Commitment (as defined below)
under this Asset Purchase Agreement;
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, the parties hereto agree as follows:
1. DEFINITIONS. Unless otherwise defined herein, the terms defined
in the Indenture, the Trust Agreement or Note Purchase Agreement, as applicable,
are used herein as therein defined.
2. PURCHASE OF PERCENTAGE INTERESTS.
(a) An APA Purchaser shall become a party hereto (i) by executing
and delivering to the Agent a counterpart of the signature page to this Asset
Purchase Agreement or (ii) in accordance with the procedures set forth in
Section 9 hereof. Thereupon, upon approval of such proposed APA Purchaser by
the Transferor in accordance with the provisions of Section 9(b)(2) and
acceptance and recording by the Agent in the Register (defined below), such
APA Purchaser shall become a party to this Asset Purchase Agreement from and
after the effective date set forth on such signature page. APA Purchasers
may become parties hereto at different times and from time to time in
accordance with the foregoing procedure. The signature page shall set forth
the initial undivided percentage (such initial percentage, as it may be
changed from time to time, the "PERCENTAGE") interest in the Purchased Note
that an APA Purchaser has agreed to purchase hereunder, the maximum
Outstanding Amount of the Percentage Interest in the Purchased Note that an
APA Purchaser is obligated to purchase hereunder plus accrued and unpaid
interest on the Purchased Note (the "MAXIMUM PURCHASE"), the effective date
of the purchase commitment and the expiration date of the purchase commitment
(the "PURCHASE TERMINATION DATE"). No Downgraded Purchaser (as defined
below) shall be permitted to extend its Purchase Termination Date. In the
event that any APA Purchaser desires to extend its Purchase Termination Date
for a Maximum Purchase amount that is less than the amount of its Maximum
Purchase prior to DFC's request for an extension of the Purchase Termination
Date, DFC, in its sole and absolute discretion, may accept such extension;
PROVIDED, HOWEVER, that such APA Purchaser shall be deemed to be a Reducing
Purchaser (as defined below) for purposes of Section 13(g) to the extent of
such APA Purchaser's Reduced Amount (as defined below).
For the purposes of this Asset Purchase Agreement, "DOWNGRADED
PURCHASER" means any APA Purchaser that has its commercial paper or short-term
deposit rating lowered below (a) P-1 by Moody's or (b) A-1+ by S&P and "NON-
EXTENDING PURCHASER" shall mean an APA Purchaser that has not consented to the
extension of its Purchase Termination Date.
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(b) From time to time upon notice from the Agent to each APA
Purchaser, each of the APA Purchasers severally and not jointly shall purchase,
on the terms and conditions herein set forth, in accordance with their
respective Percentages, Percentage Interests that the Administrative Agent, as
agent for DFC, offers for sale, up to such Purchaser's Maximum Purchase. In
addition, the Administrative Agent, as agent for DFC, shall offer for sale to
each APA Purchaser, and each APA Purchaser shall purchase, on the terms and
conditions herein set forth, in accordance with their respective Percentages, a
100% Percentage Interest in the Outstanding Amount of the Purchased Note, up to
each such APA Purchaser's Maximum Purchase, if any of the following events
occurs (each, a "Put Event"): (i) an Event of Default specified in Section
5.01(v) or (vi) of the Indenture, (ii) a Note Purchase Termination Event
specified in Section 2.08(d) or (h) of the Note Purchase Agreement, or (iii) a
Purchase Termination Event specified in Section 2.1(c)(2)(ix) of the Sale and
Servicing Agreement. Upon the occurrence of a Put Event, the Administrative
Agent shall notify the Collateral Agent to instruct Xxxxxx Guaranty Trust
Company of New York, as depositary and issuing and paying agent for DFC's
Commercial Paper Notes, to stop the issuance and delivery of Commercial Paper
Notes relating to the Seller.
(c) Each such notice of purchase referred to in Section 2(b) shall be
given no later than 11:00 a.m. (New York City time) on the Business Day of such
purchase (each, a "PURCHASE DATE"), shall be irrevocable, shall be sent by
telecopier, telex or cable to all APA Purchasers concurrently, and shall specify
the date of such purchase and the Outstanding Amount of Notes to be purchased
and the accrued and unpaid interest thereon. The Agent, after consultation with
OFL, shall request a rate (the "PURCHASER FUNDING RATE") for each period
designated by the Agent (each, a "TRANCHE PERIOD") during which a Percentage
Interest in a Purchased Note will be held by an APA Purchaser, which Purchaser
Funding Rate shall be calculated based on the Eurodollar Rate set pursuant to
the procedures set forth in the definition of "LIBOR" or Base Rate (each as
defined below and collectively, the "RATE"). Each Tranche Period based on a
Eurodollar Rate shall be a period of 1, 2 or 3 months; provided, however, that
if on the last day of any Tranche Period, the Seller has notified the
Administrative Agent that a Securitized Offering or a redemption of the Notes
with the proceeds of the sale of Trust Property is expected to occur within 30
days of such last day, the Tranche Period beginning on such last day may be
based on a 1-week, 2-week or 3-week LIBOR, with a 1-week Tranche Period selected
no more than twice in connection with such Securitized Offering or redemption of
the Notes. If the Agent has requested a Purchaser Funding Rate for any Tranche
Period to be calculated based on the Eurodollar Rate, the Purchaser Funding Rate
for such Tranche Period shall commence three LIBOR Business Days after notice of
such requested Purchaser Funding Rate (and prior to such commencement, shall be
set at the applicable Purchaser Funding Rate for the prior Tranche Period, if
applicable, or otherwise shall be calculated
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based on Base Rate). Each APA Purchaser will calculate the Purchaser Funding
Rate based on the Rate requested by the Agent and for the Tranche Period
designated by the Agent; PROVIDED, HOWEVER, that if the Agent has requested a
Purchaser Funding Rate based on the Eurodollar Rate, and either: (a) deposits
in United States dollars (in the applicable amounts) are not available to the
APA Purchasers generally in the London interbank market for such Tranche
Period, or (b) the Majority Purchasers advise the Agent that the Adjusted
LIBOR Rate (as defined below) will not adequately and fairly reflect the cost
to such APA Purchasers of maintaining or funding the Outstanding Amount of
the Notes based on the Eurodollar Rate, the Agent shall so notify the
Administrative Agent, whereupon until the Agent notifies the Administrative
Agent that such circumstances no longer exist, the obligation of the APA
Purchasers to accept a Purchaser Funding Rate based on the Eurodollar Rate
shall be suspended; and PROVIDED FURTHER, that for any Tranche Period
commencing on or after the occurrence of (1) any Default Rate Event or within
five Business Days of the Expiry Date (as defined in Section 13(i) hereof),
the Purchaser Funding Rate shall equal the Base Rate plus one (1) percent per
annum or (2) any Note Purchase Termination Event (other than a Default Rate
Event), the Purchaser Funding Rate shall equal the Adjusted LIBOR for such
Tranche Period plus one (1) percent per annum. Each APA Purchaser will
notify the Agent by 12:00 noon (New York City time) on the date two LIBOR
Business Days prior to the first day of the requested Tranche Period if, in
its judgment, the requested Purchaser Funding Rate based on the Eurodollar
Rate is not going to adequately reflect its cost. Each APA Purchaser will
establish the Purchaser Funding Rate based on the Eurodollar Rate at the
Eurodollar Rate and will establish the Rate based on the Base Rate at the
Base Rate. Prior to 2:00 p.m. (New York City time) on each Purchase Date,
each APA Purchaser shall pay the Agent for the account of DFC in immediately
available funds in United States dollars, by depositing to an account
designated by the Agent in New York City, an amount (such APA Purchaser's
"PURCHASE PRICE") equal to such APA Purchaser's Percentage of the lesser of
(x) the Outstanding Amount of Notes being purchased on such Purchase Date
plus accrued and unpaid interest thereon, if any (less any funds on deposit
with Xxxxxx Guaranty Trust Company of New York, as Collateral Agent, for DFC
and the other specified parties, held in respect of such interest), and (y)
(I) the sum of (A) the aggregate Principal Balance of Receivables that are
not Liquidated Receivables as of the earlier of the Purchase Date or the date
on which the Put Event, if any, occurred, and (B) all Collected Funds
received by the Servicer that have not been deposited into the Collection
Account and applied in accordance with the provisions of the Sale and
Servicing Agreement divided by (II) a subordination reserve adjustment,
computed by adding to the number 1 an amount (expressed as a fraction) equal
to 50% of 9%.
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For the purpose of determining the Purchaser Funding Rate hereunder,
the following terms shall have the following meanings:
"BASE RATE" shall mean, with respect to each purchase of the
Purchased Note (or portion thereof), and with respect to each day during a
Tranche Period, commencing on the first Business Day of such Tranche Period,
a rate per annum equal to the higher of (i) the prime rate announced from
time to time by the Agent and in effect on the morning of each day and (ii)
the rate equal to the weighted average of the rates on overnight Federal
funds transactions with members of the Federal Reserve System arranged by
Federal funds brokers, as published for each day (or, if such day is not a
Business Day, the next succeeding Business Day) by the Federal Reserve Bank
of New York, or if such rate is not so published for any such day, the
average of the quotations for such day for such transactions received by the
Agent from three Federal funds brokers of recognized standing selected by it
plus one-half of one percent (1/2 of 1%). Each determination of the Base
Rate shall be calculated on the basis of actual days elapsed and a year of
365 or 366 days, as the case may be.
"EURODOLLAR RATE" shall mean, with respect to each purchase of the
Purchased Note (or portion thereof), and with respect to any Tranche Period, a
rate per annum equal to Adjusted LIBOR for such Tranche Period plus .375% 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.
"ADJUSTED LIBOR" shall mean, with respect to each purchase of the
Purchased Note (or portion thereof), and with respect to any Tranche Period, a
rate per annum equal to the quotient obtained (rounded upwards, if necessary, to
the next higher 1/100 of 1%) by dividing (i) LIBOR for such Tranche Period by
(ii) a percentage equal to 100% minus the maximum rate of all reserve
requirements as specified in Regulation D of the Board of Governors of the
Federal Reserve System (or any successor to all or any portion thereof
establishing reserve requirements) including any marginal, emergency,
supplemental, special or other reserves, that are applicable to an APA Purchaser
during such Tranche Period in respect of eurocurrency or eurodollar funding,
lending or liabilities.
"LIBOR" shall mean, with respect to each purchase of the Purchased
Note (or portion thereof), and with respect to any Tranche Period, a rate per
annum determined by the Agent to be the rate at which deposits in Dollars are
offered to the Agent by prime banks in the London Interbank market at
approximately 11:00 a.m. (London time) two LIBOR Business Days before the first
day of such Tranche Period, for a period of time comparable to such Tranche
Period.
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"LIBOR BUSINESS DAY" shall mean any Business Day on which commercial
banks are open for dealings in Dollar deposits in London.
(d) Notwithstanding Section 2(c), an APA Purchaser shall not be
obligated to make purchases under such Section at any time in an amount that
would exceed such APA Purchaser's Maximum Purchase. Each APA Purchaser's
obligation shall be several, such that the failure of any APA Purchaser to
make payment to the Agent in connection with any purchase hereunder shall not
relieve any other APA Purchaser of its obligation hereunder to make payment
for the purchase by such other APA Purchaser up to such other APA Purchaser's
Maximum Purchase. If the Agent shall have been notified by any APA Purchaser
that such APA Purchaser will not (or if any APA Purchaser does not) make
available the amount that would represent such APA Purchaser's Percentage of
any purchase (other than a Non-Pro Rata Purchase (as defined below))
requested by the Agent or DFC, each other APA Purchaser agrees, subject to
the first sentence of this Section 2(d), to make available to the Agent a
ratable share of such amount (calculated on the basis of the Percentages of
the APA Purchasers that the Agent has determined will make such purchase).
The defaulting APA Purchaser agrees to purchase from each APA Purchaser that
shall have purchased a portion of such defaulting APA Purchaser's Percentage
(each such portion, a "DEFAULTED PORTION"), forthwith upon demand, the
Defaulted Portion so purchased, together with interest at the applicable
Purchaser Funding Rate on that portion of Outstanding Amount of the Purchased
Note funded by such APA Purchaser, for each day that an APA Purchaser is
required to fund a portion of the defaulting APA Purchaser's Percentage;
PROVIDED, if such defaulting APA Purchaser has not purchased such Defaulted
Portion within three Business Days following such demand, such defaulting APA
Purchaser shall thereafter be required to pay interest with respect to such
Defaulted Portion at the Base Rate plus 2% per annum.
(e) Each APA Purchaser shall be obligated to purchase Percentage
Interests under this Asset Purchase Agreement (its "PURCHASE COMMITMENT")
until the earliest of (i) the Purchase Termination Date of such APA
Purchaser's Purchase Commitment, (ii) the date on which the Agent notifies
the APA Purchaser that the Indenture has been discharged and satisfied and
the Outstanding Amount of the Notes and all accrued and unpaid interest
thereon have been paid in full and (iii) (A) the date DFC voluntarily
commences any proceeding or files any petition under any bankruptcy,
insolvency or similar law seeking the dissolution, liquidation or
reorganization of DFC, or (B) if involuntary proceedings or any involuntary
petition shall have been commenced or filed against DFC by any Person under
any bankruptcy, insolvency or similar law seeking the dissolution,
liquidation or reorganization of DFC, the earlier of (y) the date 60 days
following the commencement or filing of such proceeding or petition, if such
proceeding or petition has not been
6
dismissed on or before such date or (z) the date on which an order of relief
has been entered against DFC.
(f) The Agent will hold, for the account of each APA Purchaser,
the Purchased Notes in which the Purchased Interests were purchased pursuant
to Section 2(b), and the Administrative Agent will be the registered holder
of the Purchased Notes for all purposes under the Note Purchase Agreement and
the Indenture. Within 10 Business Days of each purchase pursuant to Section
2(b) hereof, the Agent will deliver to each APA Purchaser a certificate in
the form of Exhibit B attached hereto reflecting each APA Purchaser's
ownership of the Percentage Interest so purchased.
(g) Notwithstanding that APA Purchasers may have purchased
Percentage Interests hereunder and may have received payments from Collected
Funds with respect to Receivables sufficient to repay such Percentage
Interests in whole or in part, each APA Purchaser may be called upon to
purchase additional Percentage Interests (not to exceed the Maximum Purchase
for each such APA Purchaser) until the expiration of such APA Purchaser's
Purchase Commitment pursuant to Section 2(e) hereof.
(h) In the event that DFC assigns any portion of the Purchased
Note to another Person (which is managed by the Agent and which in the
ordinary course of its business issues commercial paper or other securities
to fund its acquisition and maintenance of asset-backed certificates,
receivables or interests therein), sales of the Purchased Note by such other
Person may be made under this Asset Purchase Agreement on the same terms and
conditions as sales or assignments by DFC.
3. REGISTER. The Agent shall maintain at its address, 000 Xxxxxx
Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: Asset Finance Group, a copy
of this Asset Purchase Agreement and each signature page hereto and each
Assignment of Purchase Commitment approved by the Trust in accordance with
the provisions of Section 9(b) and delivered to and accepted by the Agent and
a register for the recordation of the names and addresses of the APA
Purchasers, their Percentage Interests, effective dates and Purchase
Termination Dates, the Outstanding Amount of the Purchased Note owned by each
APA Purchaser from time to time and the Purchase Price relating thereto (the
"REGISTER"). The entries in the Register shall be conclusive and binding for
all purposes, absent manifest error, and the Trust, OFL, the Servicer, the
Agent and the APA Purchasers may treat each Person whose name is recorded in
the Register as an APA Purchaser hereunder for all purposes of this Asset
Purchase Agreement. The Register shall be available for inspection by the
Trustee, the Trust, OFL, the Servicer, or any APA Purchaser at any reasonable
time and from time to time during normal business hours upon reasonable prior
notice.
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4. DISTRIBUTION OF PAYMENTS.
(a) Whenever any amount of principal or interest is paid in
respect of such APA Purchaser's Percentage Interest in the Purchased Note and
such APA Purchaser's Percentage Interest has not been repurchased by DFC
pursuant to Section 10 hereof, the Administrative Agent will promptly pay, or
cause to be paid, out of funds received by it as a Noteholder under the
Indenture, to such APA Purchaser, in United States dollars, its Percentage of
such amount (adjusted for differences in the Purchaser Funding Rates to which
such APA Purchaser and DFC are entitled and further adjusted to reflect the
fact that, except as set forth below, such APA Purchaser is only entitled to
the applicable Purchaser Funding Rate on its Purchase Price) accrued from and
after the last date on which interest was paid in respect of such Percentage
Interest prior to the acquisition of such Percentage Interest by the APA
Purchaser.
(b) If, after the Agent has paid an APA Purchaser its Percentage
of any amount received by an APA Purchaser pursuant to paragraph (a) above,
such amount must be returned for any reason (including bankruptcy), such APA
Purchaser will repay to the Agent promptly the amount the Agent paid to such
APA Purchaser, whereupon such APA Purchaser's Purchased Interest, together
with accrued interest thereon, shall be deemed increased or reinstated, as
applicable, as if such amount had not been received by such APA Purchaser.
After an APA Purchaser has been paid (excluding any repayment referred to in
the immediately preceding sentence) its Percentage of the Outstanding Amount
of the Purchased Note plus accrued interest thereon (based on the Purchaser
Funding Rate to which such APA Purchaser is entitled and further adjusted to
reflect the fact that, except as set forth below, the APA Purchaser is only
entitled to the applicable Purchaser Funding Rate on its Purchase Price),
such APA Purchaser acknowledges that any remaining amounts of principal or
interest paid in connection with the Purchased Note to which such APA
Purchaser would otherwise be entitled by reason of its Purchased Interest
shall be paid to DFC for its own account.
(c) Each APA Purchaser's rights as a purchaser of Purchased
Interests shall be as set forth herein, but shall not include any right to
receive any fees set forth in the DFC Fee Letter, except as set forth in
Section 16.
5. REPRESENTATIONS AND WARRANTIES.
(a) Neither the Agent nor DFC makes any representation or warranty
or assumes any responsibility with respect to (i) any statements, warranties
or representations made in or in connection with the Purchase Agreement, any
Assignment Agreement, the Trust Agreement, the Indenture, the Sale and
Servicing Agreement, any Transfer Agreement, the Note Purchase Agreement, the
Custodian Agreement or other agreement or the execution, legality, validity,
enforceability, genuineness or sufficiency of the Purchase Agreement, any
Assignment Agreement, the Trust
8
Agreement, the Indenture, the Note Purchase Agreement, the Sale and Servicing
Agreement, any Transfer Agreement, the Trust Agreement, the Indenture, the
Custodian Agreement or other agreement or any instrument or document
furnished pursuant thereto or in connection therewith, (ii) the value or
collectibility of any Receivable, (iii) the value of the Purchased Note or
(iv) the financial condition of the Trust, OFL, ORFC II, the Servicer or any
Affiliate thereof or the performance or observance by the Trust, OFL, ORFC
II, the Servicer or any Affiliate thereof of any of their respective
obligations under the Sale and Servicing Agreement, any Transfer Agreement,
the Purchase Agreement, any Assignment Agreement, the Note Purchase
Agreement, the Trust Agreement, the Indenture or other agreement or any
instrument or document furnished pursuant thereto or in connection therewith.
Each of the Agent, the Administrative Agent and DFC does represent to each
APA Purchaser, however, that the Percentage Interest which is sold to each
APA Purchaser hereunder pursuant to Section 2(b) is, at the time of sale,
free and clear of any adverse claims created by or arising as a result of
claims against the Agent, the Administrative Agent or DFC.
(b) Each APA Purchaser represents that this Asset Purchase
Agreement has been duly authorized, executed and delivered by such APA
Purchaser pursuant to its corporate powers and constitutes the legal, valid
and binding obligation of such APA Purchaser.
(c) Each APA Purchaser confirms that such APA Purchaser has
received such documents and information as such APA Purchaser has deemed
appropriate to make its own credit analysis and decision, independently and
without reliance on the Agent or DFC, to enter into this Asset Purchase
Agreement and will, independently and without reliance on the Agent or DFC
and based on such documents and information as such APA Purchaser shall deem
appropriate at the time, continue to make its own credit decisions in taking
or not taking action hereunder. The Administrative Agent will furnish to
each APA Purchaser copies of any financial or other documents that the
Administrative Agent receives from time to time under the Note Purchase
Agreement, but the Administrative Agent assumes no responsibility for the
authenticity, validity, accuracy or completeness thereof.
(d) Each APA Purchaser shall be deemed to have represented and
warranted at the time of any purchase of a Percentage Interest hereunder that
it is an "accredited investor" as defined in Rule 501, promulgated by the
Securities and Exchange Commission (the "COMMISSION") under the Securities
Act of 1933, as amended; such APA Purchaser understands that the offering and
sale of its Percentage Interest in the Purchased Note and the Notes have not
been and will not be registered under the Securities Act of 1933, as amended,
and have not and will not be registered or qualified under any applicable
"blue sky" law, and that the offering and sale of the Percentage Interests
and the Notes have not been reviewed by, passed on or submitted to any
Federal or state agency or commission, securities exchange or
9
other regulatory body; and such APA Purchaser, through the Administrative
Agent, as agent for DFC, is acquiring its Percentage Interest without a view
to any distribution, resale or other transfer thereof; such APA Purchaser
will not resell or otherwise transfer its Percentage Interest or any portion
thereof, except (i) pursuant to an effective registration statement under the
Securities Act of 1933, as amended; (ii) in a transaction exempt from the
registration requirements of the Securities Act of 1933, as amended, and
applicable state securities or "blue sky" laws; (iii) to a person who the APA
Purchaser reasonably believes is a qualified institutional buyer (within the
meaning thereof in Rule 144A under the Securities Act of 1933, as amended)
that is aware that the resale or other transfer is being made in reliance
upon Rule 144A; or (iv) pursuant to Regulation S under the Securities Act of
1933, as amended. In connection therewith, such APA Purchaser hereby agrees
that it will not resell or otherwise transfer its Percentage Interest or any
portion thereof except as provided unless the purchaser thereof provides to
the Administrative Agent an opinion of counsel to the effect that such
purchase is in compliance with the registration provisions of the federal
securities laws and any applicable provisions under state securities law or
pursuant to an available exemption from such provisions.
6. LIABILITY OF THE AGENT, ETC. None of the Agent, the
Administrative Agent, DFC or the Referral Agent shall be liable to any APA
Purchaser in connection with (i) the administration of the Agreement or (ii)
this Asset Purchase Agreement or any purchases hereunder (except pursuant to
the Agent's representation in Section 5(a) hereof), in either case except for
its own gross negligence or willful misconduct. Without limiting the
foregoing, the Agent, DFC and the Referral Agent (i) may consult with legal
counsel (including counsel for the Trust, OFL or the Servicer), independent
public accountants or other experts and shall not be liable for any action
taken or omitted to be taken in good faith in accordance with the advice of
such counsel, accountants or other experts, (ii) shall not be responsible for
the performance or observance by the Trust, OFL, the Servicer or any
Affiliate or agent thereof of any of the terms, covenants or conditions of
the Sale and Servicing Agreement, the Purchase Agreement, the Note Purchase
Agreement, the Trust Agreement, the Indenture or other agreement or any
instrument or document furnished pursuant thereto or in connection therewith,
(iii) shall incur no liability by acting upon any notice, consent,
certificate or other instrument or writing believed to be genuine and signed
or sent by the proper party and (iv) shall not be deemed to be acting as any
APA Purchaser's trustee or otherwise in a fiduciary capacity hereunder or
under or in connection with the Indenture or the Purchased Note.
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7. RIGHTS OF THE AGENT. The Agent reserves the right, in its
sole discretion (subject to the next sentence), to, and at the request of the
Majority Purchasers will, exercise any rights and remedies available to it,
as the Administrative Agent, under the Sale and Servicing Agreement, the
Purchase Agreement, the Note Purchase Agreement, the Trust Agreement, the
Indenture or other agreement or pursuant to applicable law, and also to agree
to any amendment, modification or waiver of the Sale and Servicing Agreement,
the Purchase Agreement, the Note Purchase Agreement, the Trust Agreement, the
Indenture or other agreement or any instrument or document delivered pursuant
thereto or in connection therewith, in each case only to the extent its
consent is required as "Administrative Agent," "JPMD" or "Noteholder"
pursuant to the relevant document. Notwithstanding the foregoing, the Agent,
when acting either in its capacity as Agent or as Administrative Agent on
behalf of DFC, agrees that it shall not,
(a) without the prior written consent of each APA Purchaser,
(i) consent to any amendment, modification or waiver of any
provision of the Indenture in any way that would reduce the amount or
priority of principal or interest that is payable on account of the
Notes or delay any scheduled date for payment thereof;
(ii) agree to a different Purchaser Funding Rate from the Rate
set forth herein;
(iii) amend or waive the Note Purchase Termination Event
relating to the bankruptcy of the Trust, OFL or ORFC II; or
(iv) amend any provision of the Note Purchase Agreement which
amendment would have the effect of increasing or changing the nature
of any liabilities assumed by the APA Purchasers as contemplated in
Section 8 below; or
(b) without the prior written consent of the "Majority Purchasers"
(defined below),
(i) consent to any amendment of the definitions of "Delinquent
Receivable,""Liquidated Receivable," Purchased Receivable,"
"Noteholders' Percentage," "Outstanding Amount," "Excess Spread,"
"Excess Yield Condition," "Net Portfolio Losses," "Portfolio Loss
Ratio," "Delinquency Ratio," "Warehousing Loss Ratio," "Excess Yield
Percentage," "Average Excess Yield Percentage," "Average Net Excess
Spread Percentage," "Net Excess Spread Percentage," "Net Loss
Percentage," or "Trigger Event" contained in the Sale and Servicing
Agreement;
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(ii) amend or not declare to be a "Purchase Termination Event"
the Purchase Termination Event specified in Section 2.1(c)(2)(ix) of
the Sale and Servicing Agreement; or
(iii) amend or waive a Note Purchase Termination Event specified
in Section 2.08(e), (f) or (g) of the Note Purchase Agreement;
"MAJORITY PURCHASERS" shall mean Persons owning undivided Percentage
Interests in the Purchased Note that aggregate more than 50% of the total
outstanding principal amount of the Purchased Note; PROVIDED, that solely for
purposes of each such computation, (1) APA Purchasers shall be deemed
(whether or not they shall have made purchases hereunder) to own undivided
interests equal to their respective Percentages of the Outstanding Amount of
the Purchased Note, (2) the portion of the Outstanding Amount of the
Purchased Note owned by DFC shall be deemed to be reduced by the amounts set
forth in clause (1) and also by the amount of any undivided interests in the
Purchased Note owned by Persons other than APA Purchasers and (3) defaulting
APA Purchasers shall be deemed not to own undivided interests in the
Purchased Note; or
(c) Subject to Sections 7(a) and (b) above, amend, modify or waive
any provision of the Sale and Servicing Agreement or the Indenture that
requires the approval or consent of a specified percentage of Noteholders
without the consent of APA Purchasers owning undivided Percentage Interests
in the Purchased Note (determined as set forth in the definition of
"Majority Purchasers" above) equal to such specified percentage.
Notwithstanding anything to the contrary contained in this Section
7, nothing herein shall affect any obligation under the Sale and Servicing
Agreement, the Purchase Agreement, the Trust Agreement or the Indenture, if
any, to give notice to, or seek the consent of, Xxxxx'x and S&P to any
amendment or waiver of any provision of the Sale and Servicing Agreement, the
Purchase Agreement, the Trust Agreement or the Indenture.
8. OBLIGATIONS OF THE APA PURCHASERS, INCLUDING CONFIDENTIALITY.
Each APA Purchaser agrees to abide by, and be liable for, any obligations set
forth in the Note Purchase Agreement on the part of the DFC Owners (as
defined therein) (other than the provisions therein relating to DFC's
Commercial Paper Notes). Furthermore, each APA Purchaser understands that
the Sale and Servicing Agreement, the Purchase Agreement, the Note Purchase
Agreement, the Trust Agreement and the Indenture are confidential documents
and no APA Purchaser will disclose them to any other Person except with the
Agent's prior written consent or to APA Purchaser's legal counsel if such
counsel agrees to hold them confidential, or upon request, to any regulatory
authority having jurisdiction over such APA Purchaser, or as required by law,
or as required or requested by any
12
Governmental Authority. Notwithstanding the foregoing, any APA Purchaser
may, in connection with any assignment or participation or proposed
assignment or participation pursuant to Section 9 or 10 hereof, disclose to
the assignee or participant or proposed assignee or participant any
information relating to the Trust, OFL, ORFC II or the Servicer furnished to
such APA Purchaser by or on behalf of the Trust, OFL, ORFC II or the Servicer
or by the Agent; PROVIDED, that prior to any such disclosure, the assignee or
participant or proposed assignee or participant agrees to preserve the
confidentiality of any confidential information relating to the Trust, OFL,
ORFC II or the Servicer received by it from any of the foregoing entities.
9. ASSIGNABILITY.
(a) Each APA Purchaser may assign to any Eligible Assignee (defined
below) or to any other existing APA Purchaser all or a portion of its rights and
obligations under this Asset Purchase Agreement (including, without limitation,
all or a portion of its Purchase Commitment and any Percentage Interests owned
by it); PROVIDED, HOWEVER, that
(i) each such assignment shall be of a constant, and not a varying,
percentage of all of such APA Purchaser's rights and obligations under this
Asset Purchase Agreement,
(ii) the amount of unused Maximum Purchase and/or Purchased Interest
being assigned pursuant to each assignment shall in no event be less than
the lesser of $10,000,000 and the assigning APA Purchaser's Maximum
Purchase, and
(iii) the parties to each such assignment shall execute and deliver
to the Agent, for its acceptance and recording in the Register, an
Assignment of Purchase Commitment in the form of Exhibit A attached hereto,
together with a processing and recordation fee of $2,500.
Upon such execution, delivery, acceptance and recording, from and
after the effective date specified in the Assignment of Purchase Commitment,
(x) the assignee thereunder shall be a party hereto and, to the extent that
rights and obligations hereunder have been assigned to it pursuant to this
Asset Purchase Agreement, have the rights and obligations of an APA Purchaser
hereunder and (y) the assignor thereunder shall, to the extent that rights
and obligations hereunder have been assigned by it pursuant to this Asset
Purchase Agreement, relinquish its rights and be released from its
obligations under this Asset Purchase Agreement (and, in the case of an
assignment covering all or the remaining portion of an assigning APA
Purchaser's rights and obligations under this Asset Purchase Agreement, such
APA Purchaser shall cease to be a party hereto). Notwithstanding the
foregoing, no assignment hereunder shall be effective unless (i) the
documents evidencing such assignment are satisfactory to Xxxxx'x and S&P and
(ii) the assignee has
13
delivered to Xxxxx'x and S&P an opinion of counsel to the assignee
satisfactory to each of Xxxxx'x and S&P stating that the obligations of the
assignee under this Asset Purchase Agreement are the legal, valid and binding
obligations of the assignee, enforceable against the assignee in accordance
with their terms.
(b) For purposes of this Asset Purchase Agreement, (i) the term
"APA PURCHASER" shall mean a party executing a counterpart of a signature
page hereto and each Eligible Assignee that shall become a party to this
Asset Purchase Agreement pursuant to this Section 9, and (ii) the term
"ELIGIBLE ASSIGNEE" shall mean any Person which (A) is reasonably acceptable
to the Agent, (B) is approved by OFL which approval shall not be unreasonably
withheld, (C) either (x) has short-term debt rated at least "P-1" by Xxxxx'x
and "A-1+" by S&P or (y) is acceptable to Xxxxx'x and S&P and (D) executes an
Assignment of Purchase Commitment.
(c) Upon its receipt of an Assignment of Purchase Commitment
executed by an assigning APA Purchaser and by an assignee who is an Eligible
Assignee or who is an existing APA Purchaser, the Agent shall (i) accept such
Assignment of Purchase Commitment, (ii) record the information contained
therein in the Register and (iii) give prompt notice thereof to OFL.
10. REPURCHASE BY DFC.
(a) Provided no Note Purchase Termination Event has occurred and
is continuing, DFC may, upon one Business Day's prior written notice to S&P
and Xxxxx'x and the Agent (which shall notify the APA Purchasers on the day
that it receives such notice), repurchase Percentage Interests (the
"REPURCHASED INTERESTS") from an APA Purchaser at a repurchase price equal to
such APA Purchaser's Percentage Interest in the Outstanding Amount of the
Purchased Note related to such Repurchased Interest plus accrued and unpaid
interest, if any, at the applicable Purchaser Funding Rate for such
Repurchased Interest (the "REPURCHASE AMOUNT"); PROVIDED, that the repurchase
of any Repurchased Interest shall only occur (a) during a Tranche Period
during which the Purchaser Funding Rate is based on the Base Rate and (b) on
the last day of a Tranche Period during which the Purchaser Funding Rate is
based on the Eurodollar Rate, unless the Seller requests, and the Agent in
its sole discretion agrees to, an earlier repurchase date. Prior to 2:00
p.m. (New York City time) on the date of such repurchase, DFC shall pay the
Agent for the account of each applicable APA Purchaser in immediately
available funds in Dollars, by depositing to an account designated by the
Agent in New York City, the Repurchase Amount, plus any applicable Breakage
Payments, for each Repurchased Interest. The Agent shall promptly pay each
APA Purchaser in immediately available funds in United States dollars its
respective share of the Repurchase Amount.
(b) Within 10 Business Days of each repurchase pursuant to Section
10(a) hereof, each APA Purchaser will deliver
14
to DFC the certificate delivered to such APA Purchaser pursuant to Section
2(f) reflecting DFC's ownership of the Repurchased Interest repurchased.
11. PARTICIPATIONS. Each APA Purchaser may sell participations to
one or more banks or other entities (each, a "PARTICIPANT") (which
Participant, unless it is an investment bank or a full service commercial
bank, is not a competitor of OFL or any of its Affiliates) in or to all or a
portion of its rights and obligations under this Asset Purchase Agreement
(including, without limitation, all or a portion of its Purchase Commitment
and the Percentage Interests owned by it); PROVIDED, HOWEVER, that (i) such
APA Purchaser's obligations under this Asset Purchase Agreement (including,
without limitation, its Purchase Commitment hereunder) shall remain unchanged
and (ii) such APA Purchaser shall remain solely responsible to the other
parties hereto for the performance of such obligations, (iii) the Agent shall
continue to deal solely and directly with such APA Purchaser in connection
with such APA Purchaser's rights and obligations under this Asset Purchase
Agreement and (iv) no Participant shall have any greater right to any
compensation or indemnification from the Agent, the Administrative Agent, the
Trust or OFL under this Asset Purchase Agreement, the Note Purchase
Agreement, the Sale and Servicing Agreement or the Indenture than the APA
Purchaser would be entitled to receive hereunder or thereunder. The Trust,
the Agent, the Administrative Agent, OFL and the other APA Purchasers shall
continue to deal solely and directly with such APA Purchaser in connection
with such APA Purchaser's rights and obligations under this Asset Purchase
Agreement.
12. CHANGE IN FACILITY LIMIT AND DFC'S PURCHASE COMMITMENT.
(a) If, pursuant to Section 2.05 of the Note Purchase Agreement,
the Trust shall request an increase in the Facility Limit (as defined in the
Sale and Servicing Agreement) and/or DFC's Purchase Commitment (as defined in
the Note Purchase Agreement), then (i) the Agent shall promptly notify each
APA Purchaser of the increase in DFC's Purchase Commitment and (ii) if an
additional APA Purchaser has agreed to sign this Asset Purchase Agreement
with a Maximum Purchase equal to 102% of the increase in DFC's Purchase
Commitment, then on the effective date of such increase, each other APA
Purchaser's Percentage under its Purchase Commitment shall be proportionately
reduced and each APA Purchaser's Maximum Purchase amount shall remain the
same; PROVIDED, HOWEVER, that if the Agent has not notified the APA
Purchasers in the notification provided pursuant to clause (i) above that an
additional APA Purchaser has agreed to sign this Asset Purchase Agreement
with a Maximum Purchase equal to 102% of the increase in DFC's Purchase
Commitment, each APA Purchaser may elect to maintain its Percentage under its
Purchase Commitment by executing and delivering, within ten days after
receipt of notice of such increase, a new signature page to this Asset
Purchase
15
Agreement reaffirming its Percentage and indicating its new Maximum Purchase
amount.
(b) If, pursuant to Section 2.05 of the Note Purchase Agreement,
the Facility Limit and/or DFC's Purchase Commitment shall be decreased, then
(i) the Agent shall promptly notify each APA Purchaser of the decrease in
DFC's Purchase Commitment and (ii) on the effective date of such decrease,
each APA Purchaser's Percentage under its Purchase Commitment shall remain
the same and each APA Purchaser's Maximum Purchase amount shall be
proportionately decreased; PROVIDED, HOWEVER, that if the Agent shall notify
the APA Purchasers in the notification provided pursuant to clause (i) above
that DFC's Purchase Commitment will be reduced by an amount equal to a
Downgraded Purchaser's Maximum Purchase, then each non-Downgraded Purchaser
may elect to increase its APA Purchaser's Percentage and maintain its Maximum
Purchase at the same amount as was in effect immediately prior to the
reduction in DFC's Purchase Commitment by executing and delivering, within
ten days after receipt of notice of such decrease, a new signature page to
this Asset Purchase Agreement reaffirming its Maximum Purchase amount and
indicating its new Percentage.
13. MISCELLANEOUS.
(a) Each APA Purchaser will on demand reimburse the Agent its
Percentage share of any and all reasonable costs and expenses (including,
without limitation, reasonable fees and disbursements of counsel), which may
be incurred in connection with collecting any principal or interest with
respect to the Purchased Note in which an APA Purchaser purchases Percentage
Interests hereunder, for which the Agent is not promptly reimbursed by the
Trust.
(b) The Agent and its Affiliates may accept deposits from, lend
money or otherwise extend credit to, act as trustee under indentures of, and
generally engage in any kind of business with, the Trust, OFL, ORFC II, the
Servicer and any of their Affiliates and any Person who may do business with
or own securities of the Trust, OFL, ORFC II, the Servicer or any Affiliate,
all as though this Asset Purchase Agreement had not been entered into and
without any duty to account therefor to any APA Purchaser.
(c) Subject to Section 11.04 of the Note Purchase Agreement, any
taxes due and payable on any payments to be made to any APA Purchaser
hereunder shall be such APA Purchaser's sole responsibility. Each APA
Purchaser warrants that it is not subject to any taxes, charges, levies or
withholdings with respect to payments under the Asset Purchase Agreement that
are imposed by means of withholding by any applicable taxing authority
("WITHHOLDING TAX"). Each APA Purchaser agrees to provide the Agent, from
time to time upon the Agent's request, completed and signed copies of any
documents that may be required by an applicable taxing authority to certify
such APA Purchaser's
16
exemption from Withholding Tax with respect to payments to be made to such
APA Purchaser under this Asset Purchase Agreement; and each APA Purchaser
agrees to hold the Agent harmless from any Withholding Tax imposed due to
such APA Purchaser's failure to establish that it is not subject to
Withholding Tax.
(d) The Agent shall furnish to each APA Purchaser upon request,
until the later of (i) such APA Purchaser's Purchase Termination Date and
(ii) the date on which such APA Purchaser's Percentage Interest in the
Purchased Note and all other amounts payable to such APA Purchaser hereunder
have been paid in full, a copy of the annual audited financial statements of
DFC, promptly upon the same becoming available, and, as requested by such APA
Purchaser, copies of such other financial information that the Agent may have
received from the Servicer or OFL.
(e) Each APA Purchaser shall promptly notify the Agent of any
downgrading in the ratings of the short-term unsecured debt securities or
deposits of such APA Purchaser below (i) P-1 by Xxxxx'x or (ii) A-1+ by S&P
(such APA Purchaser, a "DOWNGRADED PURCHASER"). The Agent shall have the
right, in its sole discretion, to terminate the right and obligation of any
Downgraded Purchaser to purchase a Percentage Interest in the Purchased Note;
PROVIDED, that the Agent shall not terminate the right and obligation of any
Downgraded Purchaser hereunder unless either (i) one or more Eligible
Assignees or other APA Purchasers have agreed to accept, in the aggregate,
effective as of the date of termination, such terminated APA Purchaser's
Maximum Purchase, (ii) DFC's Purchase Commitment has been reduced by an
amount equal to the product of (A) the terminated Downgraded Purchaser's
Maximum Purchase and (B) one (1) divided by 102%, and each non-terminated APA
Purchaser has agreed to increase its APA Purchaser's Percentage and maintain
its Maximum Purchase at the same amount as was in effect immediately prior to
the reduction in DFC's Purchase Commitment or (iii) DFC obtains liquidity
support satisfactory to Xxxxx'x and S&P and, solely with respect to how such
liquidity support affects this Asset Purchase Agreement only, OFL, in an
amount not less than such terminated Downgraded Purchaser's Maximum Purchase.
Such termination shall be effective upon written notice to such effect
delivered by the Agent to such Downgraded Purchaser, whereupon all of the
rights and obligations hereunder of such Downgraded Purchaser shall
terminate; PROVIDED, that upon such termination, the Downgraded Purchaser
shall continue to have the rights and obligations of an APA Purchaser with
respect to the outstanding Percentage Interest in the Purchased Note
purchased by it pursuant to the terms of this Asset Purchase Agreement prior
to such termination.
(f) Each APA Purchaser shall promptly notify the Agent of any
event of which it has knowledge which will entitle such APA Purchaser to
compensation pursuant to Section 11.05 of the Note Purchase Agreement (an
"AFFECTED PURCHASER"). The Agent shall have the right to terminate the
rights and obligations of any Affected Purchaser and to purchase a portion of
the Purchased Interest hereunder and, in the event OFL requests that the
Agent
17
terminate such rights and obligations of the Affected Purchaser, the Agent
shall use its best efforts to find a replacement APA Purchaser (or Eligible
Assignee) or to cause the other APA Purchasers to accept the Affected
Purchaser's rights and obligations hereunder; PROVIDED that the Agent shall
not terminate such rights and obligations of any Affected Purchaser unless
either: (i) (A) one or more Eligible Assignees or other APA Purchasers have
agreed to accept, in the aggregate, effective as of the date of termination,
such Affected Purchaser's Maximum Purchase, and (B) such Eligible Assignee(s)
or APA Purchaser(s) shall have repurchased the Repurchased Interest, if any,
of the terminated Affected Purchaser by paying the Repurchase Amount or (ii)
DFC's Purchase Commitment has been reduced by an amount at least equal to the
product of (A) the Affected Purchaser's Maximum Purchase and (B) one (1)
divided by 102%, and each remaining APA Purchaser has agreed, notwithstanding
Section 12(b) hereof, to increase its APA Purchaser's Percentage and maintain
its Maximum Purchase at the same amount as was in effect immediately prior to
the reduction in DFC's Purchase Commitment. Such termination shall be
effective upon written notice to such effect delivered by the Agent to such
Affected Purchaser, whereupon the Purchase Termination Date of such Affected
Purchaser shall be deemed to have occurred. Upon such termination, the
Affected Purchaser shall cease to have any rights or obligations with respect
to future purchases of interests in the Purchased Note under this Asset
Purchase Agreement but shall continue to have the rights and obligations of
an APA Purchaser with respect to the portion of the Purchased Interest
purchased by it, together with all other rights due and owing to it, pursuant
to the terms of this Asset Purchase Agreement immediately prior to such
termination. The Agent shall use its best efforts to find Eligible
Assignee(s) or APA Purchaser(s) to replace an Affected Purchaser.
(g) On the fifth Business Day prior to any Non-Extending
Purchaser's Expiry Date (defined below), such Non-Extending Purchaser shall,
upon the request of the Agent, and subject to the limitations imposed by
Section 2(c) hereof, make a Non-Pro Rata Purchase (defined below) in an
amount up to such APA Purchaser's Maximum Purchase or, if such Non-Extending
Purchaser has extended its Purchase Termination Date for a Purchase
Commitment that is less than the amount of its Maximum Purchase (a "REDUCING
PURCHASER") prior to such extension, such Non-Pro Rata Purchase shall be in
an amount equal to the difference between such APA Purchaser's Maximum
Purchase prior to such extension and such APA Purchaser's Purchase Commitment
amount as extended (such amount is hereinafter referred to as the "REDUCED
AMOUNT"). The amount of such Non-Pro Rata Purchase to be made by a
Non-Extending Purchaser or Reducing Purchaser shall be an amount equal to the
product of (i) the difference between (A) DFC's Purchase Commitment MINUS the
aggregate outstanding APA Purchasers' Purchased Interests (excluding such
Non-Pro Rata Purchase) and (B) an amount equal to the difference between (x)
the aggregate of the Maximum Purchase of the APA Purchasers whose obligations
to purchase Purchased Interests hereunder do
18
not expire on such Expiry Date (including the reduced Maximum Purchase of
the Reducing Purchaser) and (y) the aggregate outstanding Purchased Interests
of all APA Purchasers whose obligations to purchase Purchased Interests
hereunder do not expire on such Expiry Date (including the Purchased
Interests of a Reducing Purchaser that do not constitute the Reduced Amount
for such APA Purchaser) and (ii) a fraction the numerator of which is such
Non-Extending Purchaser's Maximum Purchase, or Reduced Amount, as the case
may be, and the denominator of which is the aggregate of the Maximum
Purchases or Reduced Amounts of all of the Non-Extending Purchasers whose
obligations to purchase Purchased Interests hereunder expire on such Expiry
Date; PROVIDED, HOWEVER, that upon receipt of notice that an APA Purchaser
will become a Non-Extending Purchaser or a Reducing Purchaser, DFC shall
promptly request a determination from each of Xxxxx'x and S&P of whether
failure to request such a purchase will result in the reduction or withdrawal
of its then current rating, if any, of the Commercial Paper, and if DFC shall
have received written confirmation from each of S&P and Xxxxx'x prior to the
fifth Business Day immediately preceding such Expiry Date that such failure
will not result in a rating reduction or withdrawal of DFC's Commercial Paper
Notes, DFC shall not request and such Non-Extending Purchaser or Reducing
Purchaser shall not be required to make, such purchase. The Non-Pro Rata
Purchase amount shall be held in the Non-Pro Rata Funding Account as provided
in Section 13(i) hereof and shall be returned to the Non-Extending Purchaser
or Reducing Purchaser, as the case may be, on such APA Purchaser's Expiry
Date if and to the extent that the aggregate of the Maximum Purchase of all
APA Purchasers whose obligations to purchase Purchased Interests do not
expire on such Expiry Date is at least equal to the greater of (A) the
aggregate Outstanding Amount of all Notes on such Expiry Date and (B) DFC's
Purchase Commitment (after giving effect to any reduction thereof pursuant to
Section 2.05 of the Note Purchase Agreement) on such Expiry Date.
Notwithstanding any provision in the Agreement or the Note Purchase Agreement
to the contrary, following the Expiry Date of any Non-Extending Purchaser and
the related Non-Pro Rata Purchase, if any, such Non-Extending Purchaser shall
have no further obligation to Purchase Interests under this Asset Purchase
Agreement or to make any Incremental Purchase under the Note Purchase
Agreement or the Indenture. A Non-Extending Purchaser's Non-Pro Rata
Purchase shall be deemed to constitute such Purchaser's Purchased Interest
hereunder on and after such APA Purchaser's Expiry Date.
(h) On the 30th day (or if such day is not a Business Day, the
next succeeding Business Day) after any APA Purchaser becomes a Downgraded
Purchaser, unless DFC shall have replaced such Downgraded Purchaser pursuant
to Section 13(e) hereof, the Agent, as agent for DFC, shall request such
Downgraded Purchaser to make, and if such request is made such Downgraded
Purchaser shall make in accordance with the provisions hereof, subject to the
limitations imposed by Section 2(c) hereof, a purchase in an amount equal to
the Maximum Purchase MINUS the outstanding Percentage Interests of such APA
Purchaser; PROVIDED, HOWEVER,
19
that if DFC shall have requested at least 15 Business Days prior to such 30th
day from each of Xxxxx'x and S&P written confirmation that the failure to
request such a purchase or assignment will not result in the reduction or
withdrawal of its then current rating, if any, of the Commercial Paper, and
if such written confirmation is received by DFC prior to such 30th day, the
Agent shall not request, and such Downgraded Purchaser shall not make, such
purchase or accept such assignment. A Downgraded Purchaser's Non-Pro Rata
Purchase shall be the functional equivalent of such APA Purchaser's Maximum
Purchase and if and to the extent the Agent notifies such Downgraded
Purchaser of its obligation to purchase a Percentage Interest, moneys in the
Non-Pro Rata Funding Account shall be used to fund such Downgraded
Purchaser's Percentage of the Percentage Interest and shall thereafter
constitute such APA Purchaser's Purchased Interest.
(i) The Agent will promptly give each Non-Extending Purchaser or
Downgraded Purchaser, as applicable, telephonic notice (confirmed in writing
promptly thereafter) of the aggregate amount of the Non-Pro Rata Purchases
required pursuant to Section 13(g) or Section 13(h) hereof. If such
telephonic notice is received by an APA Purchaser prior to 12:00 noon (New
York City time) on any such Business Day, the requested Non-Pro Rata Purchase
shall be made by the Non-Extending Purchaser or Downgraded Purchaser, as
applicable, by 2:00 p.m. (New York City time) on such Business Day. If such
telephonic notice is not received prior to 12:00 noon (New York City time) on
such Business Day, the requested Non-Pro Rata Purchase shall be made by the
Non-Extending Purchaser or Downgraded Purchaser, as applicable, by 2:00 p.m.
(New York City time) on the Business Day next succeeding the Business Day on
which such telephonic notice is given. A Non-Pro Rata Purchase shall be made
by the Non-Extending Purchaser or Downgraded Purchaser, as applicable, by a
payment to the Agent of the amount of such Non-Pro Rata Purchase. Such
amount shall be deposited by the Agent into a Non-Pro Rata Funding Account
established by the Agent in connection with each Non-Pro Rata Purchase (each,
a "NON-PRO RATA FUNDING ACCOUNT"). Moneys in a Non-Pro Rata Funding Account
shall be invested by the Agent in obligations that are rated A-1+ by S&P and
P-1 by Xxxxx'x. Earnings on such investments (after deducting any losses),
if any, shall be paid by the Agent to the Downgraded Purchaser or
Non-Extending Purchaser, as the case may be, whose deposit funded such
Non-Pro Rata Funding Account on such Downgraded or Non-Extending Purchaser's
Expiry Date (or such earlier date on which such Downgraded or Non-Extending
Purchaser is replaced).
For purposes of this Asset Purchase Agreement, "EXPIRY DATE" shall
mean the later of (i) December 26, 1996, or, if said day is not a Business
Day, the Business Day next preceding said day, and (ii) such later date
agreed to by the Agent and an APA Purchaser, and "NON-PRO RATA PURCHASE"
shall mean a purchase of Percentage Interests pursuant to Section 13(g) or
13(h).
20
(j) THIS ASSET PURCHASE AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
(k) This Asset Purchase Agreement may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an
original and all of which when taken together shall constitute one and the
same agreement. Delivery of an executed counterpart of a signature page to
this Asset Purchase Agreement by telecopier shall be as effective as delivery
of a manually executed counterpart of this Asset Purchase Agreement.
(l) The APA Purchasers and DFC may, from time to time, enter into
agreements amending, modifying or supplementing this Asset Purchase Agreement
with the prior written consent of OFL. Any such agreement must be in writing
and shall be effective only to the extent specifically set forth in such
writing; provided that DFC shall not amend any provision of this Asset
Purchase Agreement without having given prior notice thereof to Xxxxx'x and
S&P and without the prior written confirmation from each of Xxxxx'x and S&P
that such amendment would not result in the reduction or withdrawal of the
then current rating, if any, of the Commercial Paper.
(m) This Asset Purchase Agreement constitutes the entire agreement
between the parties hereto with respect to the matters covered hereby and
supersedes all prior agreements and understandings between the parties. This
Asset Purchase Agreement will inure to the benefit of and be binding upon the
parties hereto and their respective successors and permitted assigns, and no
other person will have any right or obligation hereunder.
14. BANKRUPTCY PETITION AGAINST DFC. Each APA Purchaser and the
Agent hereby covenants and agrees that, prior to the date which is one year
and one day after the later of (i) the payment in full of all outstanding
Commercial Paper and (ii) the payment in full of all outstanding Commercial
Paper of any subsidiary of DFC, it will not institute against, or join any
other Person in instituting against DFC any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceeding or other similar proceeding
under the laws of the United States or any state of the United States.
15. LIMITED RECOURSE TO DFC. Notwithstanding anything to the
contrary contained herein, all obligations of DFC shall be payable by DFC
only to the extent of assets available therefor and, to the extent assets are
not available or are insufficient for the payment thereof, shall not
constitute a claim against DFC.
16. FEES. DFC shall pay to each APA Purchaser a liquidity fee
(the "LIQUIDITY FEE"), payable quarterly in arrears, on the last day of each
calendar quarter during the period such APA Purchaser has a Purchase
Commitment under this
21
Asset Purchase Agreement and on the earlier of the Expiration Date or such
Purchaser's Purchase Termination Date, as the same may be extended from time
to time. The Liquidity Fee for each APA Purchaser shall be a per annum fee
equal to such APA Purchaser's average daily unused Maximum Purchase
multiplied by .15% per annum.
22
Signature Page
with respect to
the Olympic Automobile Receivables Warehouse Trust
Variable Funding Notes
Asset Purchase Agreement
Dated as of December 28, 1995
X.X. Xxxxxx Delaware,
as Agent and as
Administrative Agent
By: /s/ Xxxxxxx X. (illegible)
---------------------------
Authorized Signature
Title:
Signature Page
with respect to
the Olympic Automobile Receivables Warehouse Trust
Variable Funding Notes
Asset Purchase Agreement
Dated December 28, 1995
SECTION 1.
Initial Percentage: 43.65%
SECTION 2.
Maximum Purchase: $89,000,000
SECTION 3.
Effective Date of Purchase Commitment: December 28, 1995
SECTION 4.
Purchase Termination Date: December 26, 1996
X.X. XXXXXX DELAWARE
000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
By: /s/ Xxxxxxx X. (illegible)
-------------------------
Authorized Signature
-------------------------
Title
Signature Page
with respect to
the Olympic Automobile Receivables Warehouse Trust
Variable Funding Notes
Asset Purchase Agreement
Dated December 28, 1995
SECTION 1.
Initial Percentage: 24.5%
SECTION 2.
Maximum Purchase: $50,000,000
SECTION 3.
Effective Date of Purchase Commitment: December 28, 1995
SECTION 4.
Purchase Termination Date: December 26, 0000
XXXX XX XXXXXXX XXXXXXXX
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
By: /s/ Xxxx Xxxx
--------------------------------
Xxxx Xxxx
Vice President
--------------------------------
Title as Attorney-in-fact
Signature Page
with respect to
the Olympic Automobile Receivables Warehouse Trust
Variable Funding Notes
Asset Purchase Agreement
Dated December 28, 1995
SECTION 1.
Initial Percentage: 7.35%
SECTION 2.
Maximum Purchase: $15,000,000
SECTION 3.
Effective Date of Purchase Commitment: December 28, 1995
SECTION 4.
Purchase Termination Date: December 26, 0000
XXX XXXX XX XXXX XXXXXX,
XXXXXXX AGENCY
Suite 2700
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
By: /s/ F.C.H. Xxxxx
--------------------------------
Authorized Signature
Senior Manager Loan Operations
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Title
Signature Page
with respect to
the Olympic Automobile Receivables Warehouse Trust
Variable Funding Notes
Asset Purchase Agreement
Dated December 28, 1995
SECTION 1.
Initial Percentage: 24.5%
SECTION 2.
Maximum Purchase: $50,000,000
SECTION 3.
Effective Date of Purchase Commitment: December 28, 1995
SECTION 4.
Purchase Termination Date: December 26, 1996
DRESDNER BANK AG CHICAGO AND GRAND
CAYMAN BRANCH
Suite 2700
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
By: (illegible)
--------------------------------
Authorized Signature
SVP
--------------------------------
Title
By: (illegible)
--------------------------------
Authorized Signature
(illegible)
--------------------------------
Title
The undersigned hereby consents to the sale from time to time by
X.X. Xxxxxx Delaware, as Agent for the undersigned, of undivided interests in
the Purchased Note owned by the undersigned, pursuant to the Asset Purchase
Agreement to which this is attached.
DELAWARE FUNDING CORPORATION
By: X.X. Xxxxxx Delaware,
as attorney-in-fact for
Delaware Funding Corporation
By: Xxxxxxx X. (illegible)
--------------------------------
Authorized Signature
--------------------------------
Title
Exhibit A
Signature Page
with respect to
the Olympic Automobile Receivables Warehouse Trust
Variable Funding Notes
Asset Purchase Agreement
Dated December ____, 1995
SECTION 1.
Purchase Commitment Percentage Assigned: ________%
Assignor's remaining Purchase Commitment
Percentage: ________%
Outstanding Amount of the
Percentage Interests Assigned: $__________
Outstanding Amount of Assignor's remaining
Percentage Interests: $__________
SECTION 2.
Assignee's Maximum Purchase: $__________
Assignor's remaining Maximum Purchase: $__________
SECTION 3.
Effective Date of this Assignment: __________, 19__
[NAME OF ASSIGNOR]
By: ________________________
Title:
[NAME OF ASSIGNEE]
[Address]
By: ________________________
Title:
Accepted this ____ day of
__________, 199__
X.X. XXXXXX DELAWARE,
as Agent
By: ________________________
Authorized Signature
________________________
Title
Exhibit B
PURCHASE CERTIFICATE
________________, 19___
[Date of Purchase]
[Name and Address of APA Purchaser]
[Delaware Funding Corporation]
Re: Olympic Automobile Receivables Warehouse Trust
Variable Funding Notes
Gentlemen:
This certificate confirms that on the date set forth above (the
"Purchase Date") you have [purchased]1/ [repurchased]2/ for your account and
risk, upon the terms and conditions of the Asset Purchase Agreement dated as
of December ____, 1995, among you, the undersigned and certain other parties,
an undivided interest (your "Percentage Interest") to the extent of ____% in
and to the Purchased Note held by the Agent and owned by [DFC] [name of APA
Purchaser from whom interest is being repurchased]2/, pursuant to the Note
Purchase Agreement dated as of December __, 1995 among Delaware Funding
Corporation, X.X. Xxxxxx Delaware, Olympic Automobiles Receivables Warehouse
Trust and Olympic Financial Ltd.
We acknowledge receipt from you of the sum of $__________ in payment
of the Purchase Price for your Percentage Interest in the Purchased Note.
Very truly yours,
X.X. XXXXXX DELAWARE,
as Agent
By:
--------------------------------
Authorized Signature
--------------------------------
Title
__________________
1/ To be inserted if certificate is being delivered in connection with a
purchase by a Purchaser.
2/ To be inserted if certificate is being delivered in connection with the
repurchase by DFC.
