EXECUTION COPY
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SUPPLEMENTAL INDENTURE
Dated as of June 12, 1996
to
INDENTURE
Dated as of December 28, 1995
between
OLYMPIC AUTOMOBILES RECEIVABLES WAREHOUSE TRUST
Issuer
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION
Trustee
and
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK
Administrative Agent
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TABLE OF CONTENTS
PAGE
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ARTICLE I
DEFINITIONS
ARTICLE II
SUPPLEMENTAL INDENTURE
SECTION 2.1. Amendment to Section 2.02 of the Indenture......... 1
SECTION 2.2. Amendment to Section 2.03 of the Indenture......... 2
SECTION 2.3. Amendment to Section 2.07 of the Indenture......... 2
SECTION 2.4. Amendment to Section 3.18 of the Indenture......... 2
SECTION 2.5. Amendment to Section 5.03 of the Indenture......... 2
SECTION 2.6. Amendment to Section 5.05 of the Indenture......... 2
SECTION 2.7. Amendment to Section 5.09 of the Indenture......... 2
SECTION 2.8. Amendment to Section 7.01 of the Indenture......... 3
SECTION 2.9. Amendment to Section 9.01 of the Indenture......... 3
SECTION 2.10. Amendment to Section 11.01 of the Indenture........ 3
SECTION 2.11. Amendment to Section 11.04 of the Indenture........ 3
SECTION 2.12. Amendment to Section 11.15 of the Indenture........ 3
SECTION 2.13. Amendment to Section 11.18 of the Indenture........ 3
ARTICLE III
MISCELLANEOUS
SECTION 3.1. Counterparts....................................... 3
SECTION 3.2. Governing Law; Entire Agreement.................... 3
SECTION 3.3. Headings........................................... 4
SECTION 3.4. Effectiveness of Supplemental Indenture............ 4
SECTION 3.5. Effect of Supplemental Indenture................... 4
SECTION 3.6. Indenture in Full Force and Effect
as Supplemented................................. 4
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SUPPLEMENTAL INDENTURE dated as of June 12, 1996 (the "SUPPLEMENTAL
INDENTURE") to INDENTURE dated as of December 28, 1995 (the "INDENTURE"),
between Olympic Automobile Receivables Warehouse Trust, a Delaware business
trust (the "ISSUER") and Norwest Bank Minnesota, National Association, a
national banking association, in its capacities as trustee ("the "TRUSTEE")
and not in its individual capacity.
WHEREAS, the Issuer and the Trustee have entered into the Indenture;
WHEREAS, pursuant to Section 9.01(b) of the Indenture, the Issuer and the
Trustee desire to enter into this Supplemental Indenture;
WHEREAS, the Issuer has executed and delivered to the Trustee pursuant to
Section 9.01(b) of the Indenture an Issuer Order, authorizing this Supplemental
Indenture;
WHEREAS, each of JPMD and a Note Majority has consented to the execution
of this Supplemental Indenture as required by Section 9.01(b) of the Indenture;
WHEREAS, it is the intent of the parties that this Supplemental Indenture
be effective as of the date set forth above (the "EFFECTIVENESS DATE");
NOW, THEREFORE, the parties to this Supplemental Indenture 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 Indenture.
ARTICLE II
SUPPLEMENTAL INDENTURE
SECTION 2.1. AMENDMENT TO SECTION 2.02 OF THE INDENTURE. The third
paragraph of Section 2.02 of the Indenture is hereby amended by deleting the
reference to the amount "$200,000,000" and substituting therefor "$300,000,000."
SECTION 2.2. AMENDMENT TO SECTION 2.03 OF THE INDENTURE. Section
2.03(a) of the Indenture is hereby amended by deleting the reference to the
amount "$19,800,000" and substituting therefor "$29,700,000."
SECTION 2.3. AMENDMENT TO SECTION 2.07 OF THE INDENTURE. Section
2.07(b) of the Indenture is hereby amended by deleting the words "so long as the
Controlling Party has declared the Notes to be immediately due and payable in
the manner provided in Section 5.02."
SECTION 2.4. AMENDMENT TO SECTION 3.18 OF THE INDENTURE. Section 3.18
of the Indenture is hereby amended by deleting the word "JPMD" and the comma
which precedes it.
SECTION 2.5. AMENDMENT TO SECTION 5.03 OF THE INDENTURE. Section
5.03(b) of the Indenture is hereby amended by deleting the words "for so long as
the Trustee is not the Controlling Party."
SECTION 2.6. AMENDMENT TO SECTION 5.05 OF THE INDENTURE. Section 5.05
of the Indenture is hereby amended to read in its entirety as follows:
"SECTION 5.05. OPTIONAL PRESERVATION OF THE RECEIVABLES. If the
Notes have become due and payable under Section 5.02 following an Event of
Default, the Trustee may, but need not, unless otherwise directed by the
Controlling Party, maintain possession of the Trust Estate. It is the
desire of the parties hereto and the Noteholders that there be at all
times sufficient funds for the payment of principal of and interest on the
Notes, and the Trustee shall take such desire into account when
determining whether or not to maintain possession of the Trust Estate. In
determining whether to maintain possession of the Trust Estate, the
Trustee may, but need not, obtain and rely upon an opinion of an
Independent investment banking or accounting firm of national reputation
as to the feasibility of such proposed action and as to the sufficiency of
the Trust Estate for such purpose".
SECTION 2.7. AMENDMENT TO SECTION 5.09 OF THE INDENTURE. Section 5.09
of the Indenture is hereby amended to read in its entirety as follows:
"SECTION 5.09 RESTORATION OF RIGHTS AND REMEDIES. If the Controlling
Party or any Noteholder has instituted any Proceeding to enforce any right
or remedy under this Indenture and such Proceeding has been discontinued
or abandoned for any reason or has been determined adversely to the
Controlling Party or to such Noteholder, then and in every such case the
Issuer, the Controlling Party and any such Noteholder shall, subject to
any determination in such Proceeding, be restored severally and
respectively to their former positions hereunder, and thereafter all
rights and remedies of the Controlling Party and any such Noteholder shall
continue as though no such Proceeding had been instituted".
SECTION 2.8. AMENDMENT TO SECTION 7.01 OF THE INDENTURE. Section 7.01
of the Indenture is hereby amended by deleting each reference to the words "the
Controlling Party" and substituting therefor "JPMD."
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SECTION 2.9. AMENDMENT TO SECTION 9.01 OF THE INDENTURE. Section
9.01(b) of the Indenture is hereby amended by deleting the words "the
Controlling Party" and substituting therefor "JPMD."
SECTION 2.10. AMENDMENT TO SECTION 11.01 OF THE INDENTURE. Section
11.01 of the Indenture is hereby amended by deleting each reference to the words
"the Controlling Party" and substituting therefor "JPMD."
SECTION 2.11. AMENDMENT TO SECTION 11.04 OF THE INDENTURE. Section
11.04(c) of the Indenture is hereby amended by deleting the words "000 Xxxxxx
Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000" and substituting therefor "000 Xxxxxxx
Xxxxxxxxxx Xxxx, Xxxxxx, Xxxxxxxx 00000-0000."
SECTION 2.12. AMENDMENT TO SECTION 11.15 OF THE INDENTURE. Section
11.15 of the Indenture is hereby amended by deleting the words "the Controlling
Party" and substituting therefor "JPMD."
SECTION 2.13. AMENDMENT TO SECTION 11.18 OF THE INDENTURE. Section
11.18 of the Indenture is hereby amended by deleting the words "the Controlling
Party" and substituting therefor "JPMD."
ARTICLE III
MISCELLANEOUS
SECTION 3.1. COUNTERPARTS. This Supplemental Indenture 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.
SECTION 3.2. GOVERNING LAW; ENTIRE AGREEMENT. THIS SUPPLEMENTAL
INDENTURE SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE
INTERNAL LAWS OF THE STATE OF NEW YORK. This Supplemental Indenture and the
Indenture (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 Supplemental
Indenture are inserted for convenience only and shall not affect the meaning or
interpretation of this Supplemental Indenture or any provisions hereof or
thereof.
SECTION 3.4. EFFECTIVENESS OF SUPPLEMENTAL INDENTURE. This
Supplemental Indenture shall become effective when the Trustee shall have
received (a) counterparts hereof executed on behalf of the Issuer and the
Trustee, and evidencing the consent of JPMD,
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(b) the consent of JPMD, on behalf of Delaware Funding Corporation, as sole
Noteholder, to the terms of this Supplemental Indenture and (c) evidence of
written notice to S&P and Xxxxx'x of this Supplemental Indenture. The Trustee
shall be entitled to receive, as a condition to the effectiveness of this
Supplemental Indenture, an Opinion of Counsel stating that this Supplemental
Indenture does not adversely affect in any material respect the interests of any
Noteholder.
SECTION 3.5. EFFECT OF SUPPLEMENTAL INDENTURE. Pursuant to Section
9.04 of the Indenture, upon the execution of this Supplemental Indenture
pursuant to the provisions of Article IX of the Indenture, the Indenture shall
be and be deemed to be modified and amended in accordance therewith with respect
to the Notes affected thereby, and the respective rights, limitations of rights,
obligations, duties, liabilities and immunities under the Indenture of the
Trustee, the Issuer and the Holders of the Notes shall thereafter be determined,
exercised and enforced hereunder subject in all respects to such modifications
and amendments, and all the terms and conditions of this Supplemental Indenture
shall be and be deemed to be part of the terms and conditions of the Indenture
for any and all purposes.
SECTION 3.6. INDENTURE IN FULL FORCE AND EFFECT AS SUPPLEMENTED.
Except as specifically stated herein, all of the terms and conditions of the
Indenture shall remain in full force and effect. All references to the
Indenture in any other document or instrument shall be deemed to mean the
Indenture, as supplemented by this Supplemental Indenture. This Supplemental
Indenture shall not constitute a novation of the Indenture, but shall constitute
an amendment thereto. The parties hereto agree to be bound by the terms and
obligations of the Indenture, as supplemented by this Supplemental Indenture, as
though the terms and obligations of the Indenture were set forth herein.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed and delivered by their authorized officers, all as
of the date and year first above written.
OLYMPIC AUTOMOBILE RECEIVABLES WAREHOUSE TRUST
By WILMINGTON TRUST COMPANY, not
in its individual capacity but solely as
Owner Trustee under the Trust Agreement
By: __________________________________
Name:
Title:
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, not
in its individual capacity but
solely as Trustee
By: __________________________________
Name:
Title:
AGREED AND CONSENTED:
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK
in its capacity as Administrative Agent for
DFC, as sole Noteholder, and the purchasers
under the DFC Asset Purchase Agreement and as
agent for the banks under the Program Facility
and as agent for the Investor Group
By: __________________________________
Name:
Title:
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