EXECUTION COPY
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AMENDMENT NO. 2
Dated as of September 30, 1996
to
SALE AND SERVICING AGREEMENT
Dated as of December 28, 1995
among
OLYMPIC AUTOMOBILE RECEIVABLES WAREHOUSE TRUST
Issuer
OLYMPIC RECEIVABLES FINANCE CORP. II
Seller
OLYMPIC FINANCIAL LTD.
In its individual capacity and as Servicer
and
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION
Backup Servicer
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS
ARTICLE II
AMENDMENT
SECTION 2.1. Amendment to Section 1.1 of the Sale and Servicing
Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 2.2. Amendment to Section 2.1 of the Sale and Servicing
Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 2.3. Amendment to Section 4.1 of the Sale and Servicing
Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
SECTION 2.4. Amendment to Section 4.6 of the Sale and Servicing
Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
SECTION 2.5. Amendment to Section 5.1 of the Sale and Servicing
Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
SECTION 2.6. Amendment to Section 9.1 of the Sale and Servicing
Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE III
MISCELLANEOUS
SECTION 3.1. Counterparts. . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 3.2. Governing Law; Entire Agreement . . . . . . . . . . . . . 5
SECTION 3.3. Headings. . . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 3.4. Sale and Servicing Agreement in Full Force and Effect as
Amended. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
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AMENDMENT NO. 2 dated as of September 30, 1996 (the "AMENDMENT") to SALE
AND SERVICING AGREEMENT dated as of December 28, 1995 and amended as of
June 12, 1996 (as amended, the "SALE AND SERVICING AGREEMENT"), among Olympic
Automobile Receivables Warehouse Trust (the "ISSUER"), Olympic Receivables
Finance Corp. II, a Delaware corporation, as Seller (the "SELLER"), Olympic
Financial Ltd., a Minnesota corporation, in its individual capacity and as
Servicer, (the "SERVICER") and Norwest Bank Minnesota, National Association,
a national banking association, as Backup Servicer (the "BACKUP SERVICER").
WHEREAS, the Issuer, the Seller, the Servicer and the Backup Servicer have
entered into the Sale and Servicing Agreement;
WHEREAS, pursuant to Section 10.1(b) of the Sale and Servicing Agreement,
the Issuer, the Seller and the Servicer desire to amend the Sale and Servicing
Agreement in certain respects as provided below;
WHEREAS, each of the Indenture Trustee, the Backup Servicer, a Certificate
Majority and a Note Majority has consented to this Amendment as required by
Section 10.1(b) of the Sale and Servicing Agreement;
WHEREAS, it is the intent of the parties that this Amendment be effective
as of the date set forth above (the "EFFECTIVENESS DATE");
NOW, THEREFORE, the parties to this Amendment hereby agree as follows:
ARTICLE I
DEFINITIONS
Unless otherwise defined herein or the context otherwise requires, defined
terms used herein shall have the meanings ascribed thereto in the Sale and
Servicing Agreement.
ARTICLE II
AMENDMENT
SECTION 2.1. AMENDMENT TO SECTION 1.1 OF THE SALE AND SERVICING AGREEMENT.
(a) The definition of "COLLECTED FUNDS" in Section 1.1 of the Sale and
Servicing Agreement is hereby amended by adding the following at the end of
such definition:
"and any payments under, or proceeds from, any Eligible Interest Rate
Cap Agreement maintained pursuant to SECTION 2.1(B)(1)(XIV)."
(b) The definition of "NET EXCESS SPREAD PERCENTAGE" in Section 1.1 of
the Sale and Servicing Agreement is hereby amended (i) by deleting the words
"hedging arrangements" in the parenthetical phrase immediately following the
word "Receivables" and inserting in their place the words "Eligible Interest
Rate Cap Agreement" and (ii) by inserting the symbol ")" immediately after the
words "Section 2.1(b)(xiv)."
(c) The definition of "NET LOSS RATE" in Section 1.1 of the Sale and
Servicing Agreement is hereby amended (i) by inserting the words "the
annualized total of the difference between" immediately following the words
"the numerator of which is equal to" and (ii) by deleting the word "less" and
inserting in its place the word "MINUS."
(d) The definition of "REQUISITE AMOUNT" in Section 1.1 of the Sale and
Servicing Agreement is hereby amended to read in its entirety as follows:
REQUISITE AMOUNT: As of any Determination Date, (i) if no Trigger
Event shall have occurred, and all previous Trigger Events shall have
been Deemed Cured, 1.0% of the sum of the Note Balance on such
Determination Date PLUS the Certificate Balance on such Determination
Date; and (ii) if a Trigger Event shall have occurred (and until such
Trigger Event shall have been Deemed Cured), (x) if such Trigger
Event is of the type described in clause (i) of the definition
thereof, 1.0% of the Maximum Program Size PLUS 1.0% of the sum of the
Note Balance on such Determination Date PLUS the Certificate Balance
on such Determination Date, (y) if such Trigger Event is of the type
described in clause (ii) of the definition thereof, 2.0% of the
Maximum Program Size PLUS 1.0% of the sum of the Note Balance on such
Determination Date PLUS the Certificate Balance on such Determination
Date, and (z) if such Trigger Event is of the type described in
clause (iii) of the definition thereof, an unlimited amount.
(e) Section 1.1 of the Sale and Servicing Agreement is hereby further
amended by deleting the following defined terms and the corresponding
definitions: EXCESS YIELD CONDITION, EXCESS YIELD PERCENTAGE and SPREAD
ACCOUNT AVAILABLE AMOUNT.
(f) Section 1.1. of the Sale and Servicing Agreement is hereby further
amended by adding the following defined terms and definitions:
ELIGIBLE INTEREST RATE CAP AGREEMENT: An interest rate cap agreement that:
(i) is on a standard ISDA form; (ii) is an amortizing interest rate cap with a
maturity date that is no earlier than the final scheduled payment date with
respect to the last maturing Receivable in the Trust; (iii) is issued by a bank
or other financial institution whose short term unsecured
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debt obligations are rated A-1+/P-1 by Standard & Poor's and Xxxxx'x,
respectively or that it is otherwise acceptable to JPMD; (iv) has a capped
interest rate equal to a 30-day LIBOR rate of 9.50% per annum; (v) provides
that any payments made by the counterparty shall be made directly to the
Collection Account; (vi) provides that it may not be materially amended,
terminated, waived or assigned by the counterparty without the prior written
consent of the Note Majority and the Certificate Majority; (vii) provides
that it may be sold by the Trust on any Trust Property Liquidation Date on
which not less than all of the Receivables in the Trust are disposed
pursuant to Section 9.1; and (viii) is otherwise in form and substance
reasonably satisfactory to JPMD.
SECTION 2.2. AMENDMENT TO SECTION 2.1 OF THE SALE AND SERVICING AGREEMENT.
(a) Section 2.1(b)(1)(xiv) of the Sale and Servicing Agreement is hereby
amended to read in its entirety as follows:
(xiv) (A) on any Transfer Date, OFL shall have established, in
accordance with Section 2.2(b)(1)(ix) of the Receivables Purchase
Agreement, in the name of the Trustee for the benefit of the Noteholders
and the Certificateholders, an Eligible Interest Rate Cap Agreement in a
notional amount equal to or greater than the sum of the Note Balance PLUS
the Certificate Balance on such Transfer Date (after taking into account
the transfer of Receivables to the Trust on such date);
(b) Section 2.1(b)(1)(xv) of the Sale and Servicing Agreement is hereby
amended by deleting the number "40%" and substituting therefor "55%."
(c) Section 2.1(b)(1) of the Sale and Servicing Agreement is hereby
amended by adding the following subsection (xvi) immediately following Section
2.1(b)(1)(xv):
(xvi) the Seller shall have deposited into the Spread Account an
amount at least equal to 1.0% of the aggregate of the Principal Balances
of the Receivables sold to the Trust on such Transfer Date;
(d) Section 2.1(b)(1) of the Sale and Servicing Agreement is hereby
further amended by renumbering Section 2.1(b)(1)(xvi) as Section
2.1(b)(1)(xvii) and by renumbering Section 2.1(b)(1)(xvii) as Section
2.1(b)(1)(xviii).
(e) Section 2.1(c)(2)(viii) of the Sale and Servicing Agreement is hereby
amended by deleting the word "or" at the end thereof.
(f) Section 2.1(c)(2)(ix) of the Sale and Servicing Agreement is hereby
amended to read in its entirety as follows:
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(ix) on any Determination Date after the first Transfer Date but
prior to the Purchase Termination Date, (A) the Delinquency Ratio shall
exceed 3.50%; (B) the Portfolio Loss Ratio shall exceed 2.50%; (C) the
Warehousing Loss Ratio shall exceed 1.0%; or (D) the Average Net Excess
Spread Percentage shall be less than 1.5%; or
(g) Section 2.1(c)(2) of the Sale and Servicing Agreement is hereby
amended by adding the following subsection (x) immediately following Section
2.1(c)(2)(ix):
(x) The notional amount of the Eligible Interest Rate Cap Agreement
required pursuant to Section 2.1(b)(1)(xiv) shall on any date be less than
the sum of the Note Balance PLUS the Certificate Balance on such date
(after taking into account the transfer of Receivables to the Trust, if
any, on such date).
SECTION 2.3. AMENDMENT TO SECTION 4.1 OF THE SALE AND SERVICING AGREEMENT.
Section 4.1(e) of the Sale and Servicing Agreement is hereby amended by deleting
the words "; PROVIDED HOWEVER, that amounts on deposit in the Spread Account up
to an amount equal to the Spread Account Available Amount may be used to
establish a hedging arrangement with a longer term in accordance with clause (g)
of the definition of "Eligible Investments" following the end of the first
sentence of such Section.
SECTION 2.4. AMENDMENT TO SECTION 4.6 OF THE SALE AND SERVICING AGREEMENT.
Section 4.6(viii) of the Sale and Servicing Agreement is hereby amended to read
in its entirety as follows:
(viii) eighth, FIRST, an amount equal to the lesser of (x) all
remaining Available Funds and (y) the excess, if any, of the Requisite
Amount as of the immediately preceding Determination Date over the amount
on deposit in the Spread Account as of such date (after taking into account
all withdrawals from the Spread Account on such Distribution Date), shall
be deposited into the Spread Account; SECOND, from Available Funds, if any
amounts are due and owing to any Indemnified Party (as such term is used in
the Note Purchase Agreement) under Section 11.01, Section 11.04 or Section
11.05 of the Note Purchase Agreement, such amount shall be deposited into
the Note Distribution Account for distribution to such Indemnified Parties,
THIRD, from Available Funds, if any amounts are due and owing to any
Indemnified Party (as such term is used in the Certificate Purchase
Agreement) under Section 11.01, Section 11.04 or Section 11.05 of the
Certificate Purchase Agreement, such amount shall be deposited into the
Certificate Distribution Account for distribution to such Indemnified
Parties, and FOURTH, any remaining Available Funds shall be released to the
Seller.
SECTION 2.5. AMENDMENT TO SECTION 5.1 OF THE SALE AND SERVICING AGREEMENT.
Section 5.1(c) of the Sale and Servicing Agreement is hereby amended by deleting
the words "respect of amounts deposited therein pursuant to Section 4.6(viii) as
a result of the
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occurrence of such Trigger Event" and substituting therefor the words "excess
of the Requisite Amount as of such date."
SECTION 2.6. AMENDMENT TO SECTION 9.1 OF THE SALE AND SERVICING AGREEMENT.
Section 9.1(b)(2) of the Sale and Servicing Agreement is hereby amended by
deleting the words "at least one Business Day prior to" and substituting
therefor the words "no later than 11:00 A.M. (New York time) on."
ARTICLE III
MISCELLANEOUS
SECTION 3.1. COUNTERPARTS. This Amendment may be executed by the parties
hereto in several counterparts, each of which shall be deemed to be an original
and all of which shall constitute together but one and the same agreement. This
Amendment shall become effective when: (1) the Servicer shall have received (a)
counterparts hereof executed on behalf of the Issuer, the Seller and the
Servicer, (b) the consents of the Backup Servicer, the Indenture Trustee and
JPMD, as sole Certificateholder, and as Administrative Agent for Delaware
Funding Corporation, the sole Noteholder, to the terms of this Amendment and
(c) evidence of written notice to Standard & Poor's and Xxxxx'x of this
Amendment and (2) OFL shall have caused the delivery of an Opinion of Counsel to
JPMD with respect to true-sale and non-substantive consolidation matters (or a
bring-down of the Opinion of Counsel with respect to these matters delivered on
the Closing Date) satisfactory to JPMD.
SECTION 3.2. GOVERNING LAW; ENTIRE AGREEMENT. THIS AMENDMENT SHALL BE
DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE
STATE OF NEW YORK. This Amendment and the Sale and Servicing Agreement (and all
exhibits, annexes and schedules thereto) constitute the entire understanding
among the parties hereto with respect to the subject matter hereof and supersede
any prior agreements, written or oral, with respect thereto.
SECTION 3.3. HEADINGS. The various headings of this Amendment are
inserted for convenience only and shall not affect the meaning or interpretation
of this Amendment or any provisions hereof or thereof.
SECTION 3.4. SALE AND SERVICING AGREEMENT IN FULL FORCE AND EFFECT AS
AMENDED. Except as specifically stated herein, all of the terms and conditions
of the Sale and Servicing Agreement shall remain in full force and effect. All
references to the Sale and Servicing Agreement in any other document or
instrument shall be deemed to mean the Sale and Servicing Agreement, as amended
by this Amendment. This Amendment shall not constitute a novation of the Sale
and Servicing Agreement, but shall constitute an amendment thereto. The parties
hereto agree to be bound by the terms and obligations of the Sale and Servicing
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Agreement, as amended by this Amendment, as though the terms and obligations of
the Sale and Servicing Agreement were set forth herein.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their authorized officers, all as of the date and
year first above written.
ISSUER:
OLYMPIC AUTOMOBILE RECEIVABLES WAREHOUSE TRUST
By WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
Owner Trustee
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Financial Services Officer
SELLER:
OLYMPIC RECEIVABLES FINANCE CORP. II
By: __________________________________
Name:
Title:
SERVICER:
OLYMPIC FINANCIAL LTD.,
in its individual capacity and as Servicer
By: __________________________________
Name:
Title:
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their authorized officers, all as of the date and
year first above written.
ISSUER:
OLYMPIC AUTOMOBILE RECEIVABLES WAREHOUSE TRUST
By WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
Owner Trustee
By: ___________________________________________
Name:
Title:
SELLER:
OLYMPIC RECEIVABLES FINANCE CORP. II
By: /s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
Title: EVP/CFO
SERVICER:
OLYMPIC FINANCIAL LTD.,
in its individual capacity and as Servicer
By: /s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
Title: VP/Treasurer
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AGREED AND CONSENTED:
BACKUP SERVICER:
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, not in
its individual capacity but as Backup Servicer
By: /s/ Illegible
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Name:
Title:
INDENTURE TRUSTEE:
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, not in
its individual capacity but as Indenture Trustee
By: /s/ Illegible
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Name:
Title:
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK, as sole
Certificateholder, and as Administrative Agent for
Delaware Funding Corporation, as sole Noteholder
By: __________________________________
Name:
Title:
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AGREED AND CONSENTED:
BACKUP SERVICER:
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, not in
its individual capacity but as Backup Servicer
By: __________________________________
Name:
Title:
INDENTURE TRUSTEE:
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, not in
its individual capacity but as Indenture Trustee
By: __________________________________
Name:
Title:
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK, as sole
Certificateholder, and as Administrative Agent for
Delaware Funding Corporation, as sole Noteholder
By: /s/ Illegible
------------------------------------------
Name:
Title:
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