EXECUTION COPY
FIRST AMENDMENT
TO THE
AMENDED AND RESTATED
NOTE PURCHASE AGREEMENT
Arcadia Automobile Receivables Warehouse Trust
THIS FIRST AMENDMENT TO THE AMENDED AND RESTATED NOTE PURCHASE
AGREEMENT dated as of July 13, 1999 (this "Amendment"), among ARCADIA
AUTOMOBILE RECEIVABLES WAREHOUSE TRUST (the "Issuer"), ARCADIA FINANCIAL LTD.
("Arcadia"), RECEIVABLES CAPITAL CORPORATION (a "Purchaser" or "RCC"), BANK
OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION as RCC Agent (in such
capacity, the "RCC Agent") and as Administrative Agent (in such capacity, the
"Administrative Agent"), DELAWARE FUNDING CORPORATION (a "Purchaser" or
"DFC"), XXXXXX GUARANTY TRUST COMPANY OF NEW YORK, as DFC Agent (the "DFC
Agent").
WHEREAS, the parties hereto wish to amend the Amended and Restated
Note Purchase Agreement dated as of July 21, 1998 (as amended and in effect
from time to time, the "NOTE PURCHASE AGREEMENT"), among the Issuer, Arcadia,
the Purchasers, the RCC Agent and the DFC Agent to (i) extend the Purchase
Period and (ii) provide for reduction of the Maximum Authorized Amount, the
DFC Purchase Limit and the RCC Purchase Limit upon the occurrence of certain
events, all as provided herein; and
WHEREAS, in accordance with the provisions of Section 7.1(b) of the
Sale and Servicing Agreement and Section 9.02 of the Indenture, the consent
of the Purchasers is required for certain amendments to the Sale and
Servicing Agreement and the Indenture, respectively, and RCC and DFC desire
to consent to the provisions of Amendment No. 1 to Sale and Servicing
Agreement dated the date hereof ("Sale Agreement Amendment"), by and among
the Issuer, Arcadia Receivables Finance Corp., AFL, the RCC Agent and the DFC
Agent and the Indenture Supplement dated the date hereof (the "Indenture
Supplement"), among the Issuer, the Trustee, the RCC Agent and the DFC Agent.
NOW, THEREFORE, in consideration of the premises and the agreements
contained herein, the parties hereto agree as follows:
SECTION 1. AMENDMENT OF SECTION 1. Section 1 of the Note Purchase
Agreement shall be amended by adding a new last sentence which reads as
follows:
On any Guaranty Reduction Event Date, the Maximum Authorized Amount
will be automatically reduced by an amount equal to the Guaranty
Reduction Amount specified in clause (i) of the definition thereof and
the DFC Purchase Limit and the RCC Purchase Limit will be automatically
reduced in accordance with their respective Purchase Percentages.
SECTION 2. AMENDMENTS TO SECTION 8. Section 8 of the Note Purchase
Agreement is amended as follows:
a. The following definition shall be added in alphabetical order
and Section 8 realphabetized accordingly:
the terms "Guaranty Reduction Amount" and "Guaranty Reduction
Event Date" shall have the meanings set forth in the Sale and Servicing
Agreement;
b. Letter (j) is deleted in its entirety and replaced with the
following:
(j) the term "Purchase Period" shall mean the period from the
date of execution hereof to the earliest to occur of (i) July 11, 2000,
(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;
SECTION 3. REPRESENTATIONS AND WARRANTIES. Each of Arcadia and the
Issuer represents and warrants that as of the date hereof no Event of Default
has occurred under the Sale and Servicing Agreement, and to the best of the
Issuer's or Arcadia's knowledge there is no set of circumstances existing
that with the passage of time, would constitute such an Event of Default or
Servicer Termination Event.
SECTION 4. CONSENT TO SALE AGREEMENT AMENDMENT AND INDENTURE
SUPPLEMENT. In accordance with the provisions Section 7.1(b) of the Sale and
Servicing Agreement and Section 9.02 of the Indenture, RCC and DFC hereby
consent to the provisions of the Sale Agreement Amendment and the Indenture
Supplement.
SECTION 5. EFFECTIVENESS. The amendments and consent provided for
by this Amendment shall become effective on July 13, 1999, upon the
occurrence of the following: (i) receipt by each Agent, in form and substance
satisfactory to the RCC Agent and the DFC Agent, of (a) this Amendment duly
executed and delivered by each of the parties hereto (and consented to by
each of the required parties), (b) an opinion of counsel to AFL and ARFC,
dated the date hereof, addressed to each Agent, the Security Insurer and each
Purchaser, covering such matters as the RCC Agent or the DFC Agent may
reasonably request, (c) an Officers' Certificate of each of the Issuer, AFL
and ARFC, dated the date hereof, (d) duly executed counterparts of the Sale
Agreement Amendment and the Indenture Supplement, (e) fully executed
Endorsement No. 5 of the Policy amending the last sentence of "Scheduled
Payments" such that the date therein is extended to July 13, 2000 and a duly
executed counterpart of an amendment to the Insurance Agreement, and (f) an
opinion of counsel to the Security Insurer, dated the date hereof, addressed
to the Issuer, AFL, ARFC, each Agent and the Indenture Trustee, covering such
matters as the RCC Agent or the DFC Agent may reasonably request.
SECTION 6. NOTE PURCHASE AGREEMENT IN FULL FORCE AND EFFECT AS
AMENDED. Except as specifically amended hereby, all of the terms and
conditions of the Note Purchase Agreement shall remain in full force and
effect and, except as expressly provided
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herein, the effectiveness of this Amendment shall not operate as, or
constitute a waiver or modification of, any right, power or remedy of any
party to the Note Purchase Agreement. All references to the Note Purchase
Agreement in any other document or instrument shall be deemed to mean the Note
Purchase Agreement as amended by this Amendment. This Amendment shall not
constitute a novation of the Note Purchase Agreement, but shall constitute an
amendment thereof.
SECTION 7. COUNTERPARTS. This Amendment may be executed in any
number of counterparts and by separate parties hereto on separate
counterparts, each of which when executed shall be deemed an original, but
all such counterparts taken together shall constitute one and the same
instrument.
SECTION 8. GOVERNING LAW. THIS AMENDMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS.
SECTION 9. DEFINED TERMS. Capitalized terms used herein and not
otherwise defined shall have the meaning assigned to such terms in the Note
Purchase Agreement.
SECTION 10. LIMITATION OF OWNER TRUSTEE LIABILITY. It is expressly
understood and agreed by the parties hereto that (a) this Amendment is
executed and delivered by Wilmington Trust Company, not individually or
personally but solely as Owner Trustee of the Issuer, in the exercise of the
powers and authority conferred and vested in it under the Trust Agreement,
(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 and agreement by Wilmington Trust Company but is made and intended
for the purpose of binding only the Issuer and (c) 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 Amendment or the other related documents.
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IN WITNESS WHEREOF, each Purchaser, the RCC Agent, the DFC Agent,
Arcadia and the Issuer have caused this First Amendment to Note Purchase
Agreement to be duly executed by their respective officers thereunto duly
authorized as of the date first above written.
ARCADIA AUTOMOBILE RECEIVABLES TRUST
By: Wilmington Trust Company, not in its
individual capacity but solely as
Owner Trustee
By: /s/ Xxxxxx X. Xxxxx
---------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Financial Services Officer
ARCADIA FINANCIAL LTD.
By: /s/ Xxxx Xxxxxx
---------------------------
Name:
Title:
RECEIVABLES CAPITAL CORPORATION,
as a Purchaser
By: /s/ Xxxxxxx Xxxxxx
---------------------------
Name:
Title:
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Administrative Agent and RCC Agent
By: /s/ Xxxxxxxx Xxxxxxx
---------------------------
Name: XXXXXXXX XXXXXXX
Title: Vice President
DELAWARE FUNDING CORPORATION,
as a Purchaser
By: Xxxxxx Guaranty Trust Company of New
York as attorney-in-fact for
Delaware Funding Corporation
By: /s/ Xxxxxx X. Xxxxx
---------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
XXXXXX GUARANTY TRUST COMPANY OF
NEW YORK,
as DFC Agent
By: /s/ Xxxxxx X. Xxxxx
---------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
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