EXECUTION COPY
ASSET PURCHASE AGREEMENT
Dated as of July 31, 1997
Xxxxxx Guaranty Trust Company of New York, as agent for each of the
APA Purchasers (defined below) (in such capacity, the "AGENT"), and as agent for
Delaware Funding Corporation and the APA Purchasers, as the purchasers from time
to time of the Purchased Note (defined below) (in such capacity, 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, the Agent and certain APA Purchasers are parties to an Asset
Purchase Agreement dated as of December 28, 1995, as previously amended (the
"Original Asset Purchase Agreement");
WHEREAS, the parties to the Original Asset Purchase Agreement desire
to further amend the Original Asset Purchase Agreement in connection with
amendments being made to the documents contemplated by the Original Asset
Purchase Agreement;
WHEREAS Arcadia Financial Ltd. ("AFL"), as seller, and Arcadia
Receivables Financial Corp. II ("ARFC II"), as buyer, are, on the date hereof,
entering into an Amended and Restated Receivables Purchase Agreement and
Assignment, dated as of July 31, 1997 (the "PURCHASE AGREEMENT"), and will from
time to time enter into assignment agreements providing for the sale and
assignment by AFL to ARFC II of a pool of specified Receivables;
WHEREAS ARFC II, as seller, and Olympic Automobile Receivables
Warehouse Trust (the "TRUST"), as buyer, are, on the date hereof, entering into
an Amended and Restated Sale and Servicing Agreement, dated as of July 31, 1997
(the "SALE AND SERVICING AGREEMENT"), with AFL, 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 ARFC II to the Trust of a pool of Specified
Receivables;
WHEREAS the Trust is, on the date hereof, entering into an Amended and
Restated Indenture, dated as of July 31, 1997 (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"), AFL, in its individual capacity and as Servicer, and the Trust are, on
the date hereof, entering into an Amended and Restated Note Purchase Agreement,
dated as of July 31, 1997 (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; and
WHEREAS, the Agent and the APA Purchasers are entering into this Asset
Purchase Agreement, which on the Effectiveness Date (defined below in Section
18) will supersede the Original Asset Purchase Agreement, to make certain
amendments to the Original Asset Purchase Agreement and to govern the
obligations of the parties hereunder from and after the date hereof.
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
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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.
(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 severally and not
jointly, on the terms and conditions herein set forth, PRO RATA 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)(C) and (D) 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
AFL, shall
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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 based on the 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 Tranche Period during which the
Purchaser Funding Rate is to be based on the Eurodollar Rate 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
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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 12%.
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 .45% per
annum; PROVIDED, HOWEVER, if the applicable Warehousing Period (as defined in
the Sale and Servicing Agreement) exceeds ninety (90) days, the Eurodollar Rate
for any Tranche Period shall be a rate per annum equal to Adjusted LIBOR for
such Tranche Period plus .55% per annum. Each determination of the Eurodollar
Rate shall be calculated on the basis of actual days elapsed and a year of 360
days.
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"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.
"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 the
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
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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 dismissed on or before
such date or (z) the date on which an order of relief has been entered against
DFC.
(f) The Administrative Agent will hold the Purchased Note for the
account and benefit of each APA Purchaser to the extent of each such APA
Purchaser's Percentage Interest in the Purchased Note, and will be the
registered holder of the Purchased Note 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.
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3. REGISTER. The Agent shall maintain at its address, 000 Xxxxxxx
Xxxxxxxxxx Xxxx, Xxxxxx, Xxxxxxxx 00000-0000, 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, AFL, 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, AFL, the
Servicer, or any APA Purchaser at any reasonable time and from time to time
during normal business hours upon reasonable prior notice.
4. DISTRIBUTION OF PAYMENTS.
(a) Whenever any amount of principal or interest is paid in respect
of the Purchased Note and any APA Purchaser owns a Percentage Interest in the
Purchased Note which 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
through the date on which such payment is made or the last day on which such
Percentage Interest was owned by such APA Purchaser, as the case may be.
(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 Percentage Interest in the Purchased
Note, 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
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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 Percentage Interest shall be paid to DFC
for its own account.
(c) Each APA Purchaser's rights as a purchaser of Percentage
Interests in the Purchased Note 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 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, AFL, ARFC II, the
Servicer or any Affiliate thereof or the performance or observance by the Trust,
AFL, ARFC 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,
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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 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 herein 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 Xxxxxx Guaranty Trust Company of New York, as the
Referral Agent for DFC (in such capacity, 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),
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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, AFL 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, AFL, 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.
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 reserves the right, in
its sole discretion, subject to the next sentence, 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," "Xxxxxx" 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 or the Note Purchase Agreement or enter
into any agreement pursuant to Section 11.06 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;
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(iii) amend or waive the Note Purchase Termination Event relating
to the bankruptcy of the Trust, AFL or ARFC II; or
(iv) amend any provision of the Note Purchase Agreement or the
Indenture 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," "Requisite
Amount," "Average Net Excess Spread Percentage," "Net Excess Spread
Percentage," "Net Loss Percentage," or "Trigger Event" contained in
the Sale and Servicing Agreement;
(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;
(iii) amend or waive a Note Purchase Termination Event specified
in Section 2.08(e), (f) or (g) of the Note Purchase Agreement; or
(iv) consent to a Change of Control with respect to AFL which
consent shall not be unreasonably withheld.
"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
12
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 its part as a DFC Owner (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 or accountants if such counsel or
accountants agree to hold them confidential, or upon request, to any regulatory
authority having jurisdiction over such APA Purchaser, or as required by law, or
by subpoena or other legal process or in connection with any litigation to which
any APA Purchaser is a party, or as required or requested by any 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 confidential information relating to the
Trust, AFL, ARFC II or the Servicer furnished to such APA Purchaser by or on
behalf of the Trust, AFL, ARFC 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, AFL, ARFC 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,
13
(ii) the amount of unused Maximum Purchase and/or Percentage Interest
in the Purchased Note 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 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, the term
"ELIGIBLE ASSIGNEE" shall mean any Person which (A) is reasonably acceptable to
the Agent, (B) is approved by AFL 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 AFL.
10. REPURCHASE BY DFC.
(a) 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),
14
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 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 AFL 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 AFL 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, AFL
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.
15
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 requested increase in DFC's Purchase Commitment and (ii) if one
or more additional APA Purchasers have agreed to sign this Asset Purchase
Agreement with an aggregate Maximum Purchase equal to all or a portion of the
requested 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 or Purchasers have agreed to sign
this Asset Purchase Agreement with an aggregate Maximum Purchase equal to the
requested 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 Agreement reaffirming its Percentage and
indicating its new Maximum Purchase amount; and PROVIDED FURTHER that in no
event shall the increase in DFC's Purchase Commitment exceed the increase in the
aggregate Maximum Purchases (after taking into account any additional APA
Purchasers and existing APA Purchasers who are increasing their Maximum
Purchases).
(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.
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13. MISCELLANEOUS.
(a) Each APA Purchaser will on demand reimburse the Agent its
Percentage share of any and all reasonable out-of-pocket 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, AFL, ARFC II, the Servicer and
any of their Affiliates and any Person who may do business with or own
securities of the Trust, AFL, ARFC 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 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 AFL.
(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
17
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 terminated Downgraded Purchaser's Maximum Purchase, 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, AFL, 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 such Affected
Purchaser's Percentage Interest in the Purchased Note hereunder and, in the
event AFL requests that the Agent 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 purchased the Percentage Interest, if
any, of the terminated Affected Purchaser by paying the unpaid Purchase Price or
(ii) DFC's Purchase Commitment has been reduced by an amount at least equal to
the Affected Purchaser's Maximum Purchase, 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
18
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 Percentage
Interest in the Purchased Note 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' Percentage Interests in the
Purchased Note (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 not
expire on such Expiry Date (including the reduced Maximum Purchase of all the
Reducing Purchasers) and (y) the aggregate outstanding Percentage Interests of
all APA Purchasers whose obligations to purchase Purchased Interests hereunder
do not expire on such Expiry Date (including the Percentage Interests of all
Reducing Purchasers 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
19
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 Percentage Interests in the Purchased Note 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 Percentage
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
Percentage Interest in the Purchased Note hereunder on and after such APA
Purchaser's Expiry Date and payments of principal of and interest on the
Purchased Note shall be distributed to a Non-Extending Purchaser in respect of
its Percentage Interest in accordance with Section 4(a) hereof. A Non-Extending
Purchaser's deemed Percentage Interest in the Purchased Note shall be in
addition to any Percentage Interest in the Purchased Note previously purchased
by such Non-Extending Purchaser.
(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, 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.
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(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) July 30, 1998, 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.
(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 AFL. 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
21
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 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, for each day, such APA Purchaser's unused Maximum Purchase multiplied by
either (i) .20% per annum or (ii) if and for so long as any Warehousing Period
(as defined in the Sale and Servicing Agreement) exceeds 90 days, .30% per
annum. On the date hereof, DFC shall pay each APA Purchaser a participation fee
in accordance with Schedule I hereto.
17. CONSENT TO AMENDMENTS TO OTHER AGREEMENTS. In accordance with the
provisions of Section 7(b) of the Agreement, all of the Purchasers who execute
the attached signature pages hereby consent to (i) the Amended and Restated Note
Purchase Agreement and (ii) the Amended and Restated Sale and Servicing
Agreement, each dated the date hereof.
22
18. EFFECTIVENESS DATE. This Amended and Restated Asset Purchase
Agreement shall become effective on the date (the "Effectiveness Date") on which
the Agent has received (i) counterparts of this Asset Purchase Agreement duly
executed by each party hereto and (ii) notice that the conditions of
effectiveness to the Note Purchase Agreement have been satisfied.
23
Signature Page
with respect to
the Olympic Automobile Receivables Warehouse Trust
Variable Funding Notes
Amended and Restated Asset Purchase Agreement
Dated as of July 31, 1997
Xxxxxx Guaranty Trust Company of
New York,
as Agent and as
Administrative Agent
By: /s/ Xxxxxxx X. Xxxxx
------------------------
Authorized Signature
Title: Xxxxxxx X. Xxxxx
Vice President
Signature Page
with respect to
the Olympic Automobile Receivables Warehouse Trust
Variable Funding Notes
Amended and Restated Asset Purchase Agreement
Dated July 31, 1997
SECTION 1.
Initial Percentage: 52.0833333%
SECTION 2.
Maximum Purchase: $125,000,000
SECTION 3.
Effective Date of Purchase Commitment: July 31, 1997
SECTION 4.
Purchase Termination Date: July 30, 0000
Xxxxxx Xxxxxxxx Xxxxx Xxxxxxx xx
Xxx Xxxx
000 Xxxxxxx Xxxxxxxxxx Xxxx
Xxxxxx, Xxxxxxxx 00000-0000
By: /s/ Xxxxxxx X. Xxxxx
------------------------
Authorized Signature
Xxxxxxx X. Xxxxx
Vice President
------------------------
Title
Signature Page
with respect to
the Olympic Automobile Receivables Warehouse Trust
Variable Funding Notes
Amended and Restated Asset Purchase Agreement
Dated July 31, 1997
SECTION 1.
Initial Percentage: 20.8333333%
SECTION 2.
Maximum Purchase: $50,000,000
SECTION 3.
Effective Date of Purchase Commitment: July 31, 1997
SECTION 4.
Purchase Termination Date: July 30, 1998
XXXXXX TRUST AND SAVINGS BANK
000 Xxxx Xxxxxx Xxxxxx
X.X. Xxx 000
Xxxxxxx, Xxxxxxxx 00000
By: /s/ [ILLEGIBLE]
------------------------
Title: Vice President
------------------------
By: Title:
Signature Page
with respect to
the Olympic Automobile Receivables Warehouse Trust
Variable Funding Notes
Amended and Restated Asset Purchase Agreement
Dated July 31, 1997
SECTION 1.
Initial Percentage: 16.6666667%
SECTION 2.
Maximum Purchase: $40,000,000
SECTION 3.
Effective Date of Purchase Commitment: July 31, 1997
SECTION 4.
Purchase Termination Date: July 30, 0000
XXXX XX XXXXXXX NATIONAL TRUST
AND SAVINGS ASSOCIATION
000 Xxxxx XxXxxxx Xxxxxx
16th Floor - Mail Code 1611
Xxxxxxx, Xxxxxxxx 00000
By: /s/ Xxxxxx X. Xxxxxxxxx
--------------------------
Title: XXXXXX X. XXXXXXXXX,
as Attorney-in-Fact
By:
------------------------
Title:
Signature Page
with respect to
the Olympic Automobile Receivables Warehouse Trust
Variable Funding Notes
Amended and Restated Asset Purchase Agreement
Dated July 31, 1997
SECTION 1.
Initial Percentage: 10.4166667%
SECTION 2.
Maximum Purchase: $25,000,000
SECTION 3.
Effective Date of Purchase Commitment: July 31, 1997
SECTION 4.
Purchase Termination Date: July 30, 0000
XXXXXXX XXXX XXXXXXXXX, N.A.
000 Xxxxxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
By: /s/ Xxxxxx X. Xxxxx
------------------------
Title: Vice President
By: Xxxxxx X. Xxxxx
------------------------
Title:
The undersigned hereby consents to the sale from time to time by
Xxxxxx Guaranty Trust Company of New York, as Agent for the undersigned, of
undivided interests in the Purchased Note owned by the undersigned, pursuant to
the Amended and Restated Asset Purchase Agreement to which this is attached.
DELAWARE FUNDING CORPORATION
By: Xxxxxx Guaranty Trust Company
of New York,
as attorney-in-fact for
Delaware Funding Corporation
By:
------------------------
Authorized Signature
------------------------
Title:
