EXECUTION COPY
THIRD AMENDMENT
AND CONSENT
RELATING TO
ASSET PURCHASE AGREEMENT
Olympic Automobile Receivables Warehouse Trust
Variable Funding Notes
THIS THIRD AMENDMENT AND CONSENT dated as of January 17, 1997 (the
"THIRD AMENDMENT") Relating to the ASSET PURCHASE AGREEMENT, dated as of
December 28, 1995 and amended as of June 12, 1996 and December 20, 1996 (the
"AGREEMENT") among Xxxxxx Guaranty Trust Company of New York (successor to
X.X. Xxxxxx Xxxxxxxx), as administrative agent (the "AGENT") and each of the
parties (collectively, the "APA PURCHASERS") who has (i) executed a signature
page to the Agreement or (ii) executed an Assignment of Purchase Commitment,
is by and among the parties listed above. Capitalized terms used in this
Third Amendment and not otherwise defined shall have the meanings assigned to
such terms in the Agreement.
RECITALS
WHEREAS, January 17, 1997 is the Purchase Termination Date for each
of the current APA Purchasers and is also the Expiry Date specified in the
Agreement; and
WHEREAS, in accordance with the provisions of Section 2(a) of the
Agreement, Dresdner Bank AG Chicago and Grand Cayman Branch (the
"Non-Extending Purchaser") has notified the Agent that it will not consent to
the extension of its Purchase Termination Date; and
WHEREAS, the Agent and the APA Purchasers (other than the
Non-Extending Purchaser) wish to amend the Agreement to extend each APA
Purchaser's (other than the Non-Extending Purchaser) Purchase Termination
Date and the Expiry Date; and
WHEREAS, in accordance with the provisions of Section 2(a) of the
Agreement, Xxxxxx Guaranty Trust Company of New York, as an APA Purchaser (in
such capacity, the "Reducing Purchaser") has notified the Agent that it wants
to reduce its Maximum Purchase following the January 17, 1997 Purchase
Termination Date; and
WHEREAS, the Seller has determined to reduce the Facility Limit and
DFC's Purchase Commitment, such reduction to be effective as of January 17,
1997; and
WHEREAS, due to the withdrawal of the Non-Extending Purchaser, the
decrease in the Maximum Purchase of the Reducing Purchaser and the reduction
in DFC's Purchase Commitment and in the Facility Limit, the Percentages of
the remaining APA Purchasers will be affected as evidenced herein; and
WHEREAS, in a First Amendment and Consent relating to the Note
Purchase Agreement dated the date hereof, the Agent has been given the right
to consent to a Change of Control (as defined in such First Amendment) of OFL
and desires to be governed by the Majority Purchasers in determining whether
to grant such consent; and
WHEREAS, the Agent has agreed to increase the Liquidity Fee payable
to the APA Purchasers under certain circumstances; and
WHEREAS, in accordance with the provisions of Section 13(l) of the
Agreement, Delaware Funding Corporation and Olympic Financial Ltd. ("OFL")
are willing to consent to this Third Amendment upon the terms provided for
herein; and
WHEREAS, pursuant to Section 7(b) of the Agreement, the Agent is
required to obtain the consent of the Majority Purchasers before consenting
to amendments to the Sale and Servicing Agreement.
NOW THEREFORE, in consideration of the premises and the agreements
contained herein, the parties hereto agree as follows:
SECTION 1. EXTENSION OF PURCHASE TERMINATION DATE. Each APA
Purchaser who executes an attached signature page hereby consents to the
extension of such APA Purchaser's Purchase Termination Date to the date
specified on such signature page.
SECTION 2. DECREASE IN MAXIMUM PURCHASE. The Reducing Purchaser,
by execution of its attached signature page, hereby agrees to the decrease in
its Maximum Purchase to the amount stated therein.
SECTION 3. ACKNOWLEDGEMENT OF DECREASE IN FACILITY LIMIT AND DFC'S
PURCHASE LIMIT. In accordance with the provisions of Section 12(b) of the
Agreement, all of the APA Purchasers who execute the attached signature pages
hereby acknowledge the reduction in the Facility Limit and DFC's Purchase
Limit from $300,000,000 to $225,000,000.
SECTION 4. EXTENSION AND AMENDMENT OF THE "EXPIRY DATE." The
definition of "Expiry Date" in the last paragraph of Section 13(i) of the
Agreement is hereby amended to read as follows:
For purposes of this Asset Purchase Agreement, "EXPIRY DATE" shall
mean, for each APA Purchaser, the earlier of (i) December 19, 1997 or
(ii) June 30, 1997, but only if
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either (a) such APA Purchaser determines, in its sole and absolute
discretion, to terminate its Purchase Commitment hereunder and so
notifies the Agent and OFL in writing on or before May 27, 1997 or (b)
DFC terminates its Purchase Commitment under the Note Purchase Agreement,
SECTION 5. RIGHT OF MAJORITY PURCHASERS TO CONSENT TO CHANGE OF
CONTROL. A new clause (iv) is added to Section 7(b) of the Agreement and
reads as follows:
(iv) consent to a Change of Control with respect to OFL;
SECTION 6. INCREASE OF LIQUIDITY FEE UNDER CERTAIN CIRCUMSTANCES.
The last sentence of Section 16 of the Agreement is hereby amended to read as
follows:
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) .15% per annum or (ii) if and for so long as any Warehousing
Period (as defined in the Sale and Servicing Agreement) exceeds 90 days,
.25% per annum.
SECTION 7. CONSENT TO AMENDMENT TO SALE AND SERVICING AGREEMENT.
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
Amendment No. 3 to Sale and Servicing Agreement of even date herewith,
substantially in the form attached to this Third Amendment as Exhibit B.
SECTION 8. AMENDMENTS OF SIGNATURE PAGES. As a result of the
withdrawal of the Non-Extending Purchaser as an APA Purchaser and the
decrease in the Maximum Purchase of the Reducing Purchaser as provided in
Section 2 of this Third Amendment, pursuant to Sections 2(a), 12(b) and 13(l)
of the Agreement, the Percentages of remaining APA Purchasers are being
revised. The Percentages and extended Purchase Termination Dates of the
remaining APA Purchasers are specified in the executed signature pages
attached to this Third Amendment as Exhibit A. The attached signature pages
shall supersede the signature pages to the Agreement dated December 20, 1996,
and from and after the date of this Third Amendment all references to the
signature pages of the Agreement shall refer to the signature pages attached
as Exhibit A to this Third Amendment.
SECTION 9. EFFECTIVENESS. The amendments provided for by this
Third Amendment shall become effective as of January 17, 1997, upon receipt
by the Agent of (i) counterparts of this Third Amendment, duly executed by
each of the parties hereto, (ii) notice that the conditions to effectiveness
of the First Amendment and Consent Relating to Note Purchase Agreement dated
the date hereof have been satisfied and (iii) confirmation by each of S&P and
Xxxxx'x of the then-current ratings of the Commercial Paper Notes.
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SECTION 10. AGREEMENT IN FULL FORCE AND EFFECT AS AMENDED. Except
as specifically amended or waived hereby, all of the terms and conditions of
the Agreement shall remain in full force and effect. All references to the
Agreement in any other document or instrument shall be deemed to mean such
Agreement as amended by this Third Amendment. This Third Amendment shall not
constitute a novation of the Agreement, but shall constitute an amendment
thereof. The parties hereto agree to be bound by the terms and obligations
of the Agreement, as amended by this Third Amendment, as though the terms and
obligations of the Agreement were set forth herein.
SECTION 11. PRIOR UNDERSTANDINGS. This Third Amendment sets forth
the entire understanding of the parties relating to the subject matter
hereof, and supersedes all prior understandings and agreements, whether
written or oral.
SECTION 12. COUNTERPARTS. This Third 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 13. GOVERNING LAW. THIS THIRD AMENDMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 14. DEFINED TERMS. Capitalized terms used herein and not
otherwise defined shall have the meanings assigned to such terms in the
Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Third
Amendment to the Agreement to be duly executed by their respective authorized
officers as of the day and year first above written.
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK
By: /s/ Xxxxxxx X. Xxxxx
------------------------
Title: Xxxxxxx X. Xxxxx
Vice President
Acknowledged and consented to:
January 17, 1997
DELAWARE FUNDING CORPORATION
By: Xxxxxx Guaranty Trust Company
of New York,
as attorney-in-fact for
Delaware Funding Corporation
By: /s/ Xxxxxxx X. Xxxxx
------------------------
Authorized Signatory
Xxxxxxx X. Xxxxx
Vice President
------------------------
Title
OLYMPIC FINANCIAL LIMITED
By:
--------------------------
Authorized Signatory
--------------------------
Title
5
IN WITNESS WHEREOF, the parties hereto have caused this Third
Amendment to the Agreement to be duly executed by their respective authorized
officers as of the day and year first above written.
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK
By:
------------------------
Title:
Acknowledged and consented to:
January 17, 1997
DELAWARE FUNDING CORPORATION
By: Xxxxxx Guaranty Trust Company
of New York,
as attorney-in-fact for
Delaware Funding Corporation
By:
--------------------------
Authorized Signatory
--------------------------
Title
OLYMPIC FINANCIAL LTD.
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------
Authorized Signatory
Xxxxxxx X. Xxxxxxx
Treasurer
-------------------------
Title
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EXHIBIT A
Signature Page
with respect to
Olympic Automobile Receivables Warehouse Trust
Variable Funding Notes
Asset Purchase Agreement
Dated as of December 28, 1995
Amended as of June 12, 1996
Amended as of December 20, 1996
Amended as of January 17, 1997
Xxxxxx Guaranty Trust Company of New York,
as Agent and as Administrative Agent
By: /s/ Xxxxxxx X. Xxxxx
------------------------
Authorized Signature
Xxxxxxx X. Xxxxx
Vice President
------------------------
Title
Signature Page
with respect to
Olympic Automobile Receivables Warehouse Trust
Variable Funding Notes
Asset Purchase Agreement
SECTION 1.
Percentage: 37.78%
SECTION 2.
Maximum Purchase: $85,000,000
SECTION 3.
Effective Date of Purchase Commitment: January 17, 1997
SECTION 4.
Purchase Termination Date: December 19, 1997*
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK
000 Xxxxxxx Xxxxxxxxxx Xxxx
Xxxxxx, Xxxxxxxx 00000-0000
By: /s/ Xxxxxxx X. Xxxxx
------------------------
Authorized Signature
Xxxxxxx X. Xxxxx
Vice President
------------------------
Title
-------------
* At the option of the APA Purchaser named above, June 30, 1997.
Signature Page
with respect to
Olympic Automobile Receivables Warehouse Trust
Variable Funding Notes
Asset Purchase Agreement
SECTION 1.
Percentage: 6.67%
SECTION 2.
Maximum Purchase: $15,000,000
SECTION 3.
Effective Date of Purchase Commitment: January 17, 1997
SECTION 4.
Purchase Termination Date: December 19, 1997*
THE BANK OF NOVA SCOTIA,
ATLANTA AGENCY
Suite 0000
000 Xxxxxxxxx Xxxxxx, X.X.
Atlanta, Georgia 30308
By: /s/ F.C.H. Xxxxx
------------------------
Title: F.C.H. Xxxxx
Senior Manager Loan Operations
-------------
* At the option of the APA Purchaser named above, June 30, 1997.
Signature Page
with respect to
Olympic Automobile Receivables Warehouse Trust
Variable Funding Notes
Asset Purchase Agreement
SECTION 1.
Percentage: 11.11%
SECTION 2.
Maximum Purchase: $25,000,000
SECTION 3.
Effective Date of Purchase Commitment: January 17, 1997
SECTION 4.
Purchase Termination Date: December 19, 1997*
COMMERZBANK AKTIENGESELLSCHAFT, CHICAGO BRANCH
000 X. Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
By: /s/ Xxxx Xxxxxx
------------------------
Title: Xxxx Xxxxxx
Assistant Treasurer
By: /s/ X. Xxxxxxx Shortly
------------------------
Title: X. Xxxxxxx Shortly
Senior Vice President
-------------
* At the option of the APA Purchaser named above, June 30, 1997.
Signature Page
with respect to
Olympic Automobile Receivables Warehouse Trust
Variable Funding Notes
Asset Purchase Agreement
SECTION 1.
Percentage: 22.22%
SECTION 2.
Maximum Purchase: $50,000,000
SECTION 3.
Effective Date of Purchase Commitment: January 17, 1997
SECTION 4.
Purchase Termination Date: December 19, 1997*
XXXXXX TRUST AND SAVINGS BANK
000 Xxxx Xxxxxx Xxxxxx
P.O. Box 755
Chicago, Illinois 60690
By: /s/ ILLEGIBLE
------------------------
Title: Illegible
By: V.P.
------------------------
Title:
-------------
* At the option of the APA Purchaser named above, June 30, 1997.
Signature Page
with respect to
Olympic Automobile Receivables Warehouse Trust
Variable Funding Notes
Asset Purchase Agreement
SECTION 1.
Percentage: 22.22%
SECTION 2.
Maximum Purchase: $50,000,000
SECTION 3.
Effective Date of Purchase Commitment: January 17, 1997
SECTION 4.
Purchase Termination Date: December 19, 1997*
BANCO SANTANDER, NEW YORK BRANCH
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
By: /s/ Xxx X. Xxxxxxxxx
------------------------
Title: Xxx X. Xxxxxxxxx
Vice President
BANCO SANTANDER
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------
Title: Xxxxxx X. Xxxxxxxx
Vice President
Manager-Corporate Banking
BANCO SANTANDER
-------------
* At the option of the APA Purchaser named above, June 30, 1997.
