COLLATERAL AGENT AGREEMENT
COLLATERAL AGENT AGREEMENT dated October 17, 1997 among DLJ MORTGAGE
CAPITAL, INC., as agent for the Investors (as hereinafter defined) (in such
capacity, the "AGENT"), NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, a
national banking association (the "COLLATERAL AGENT"), ARCADIA RECEIVABLES
FINANCE CORP. III, a Delaware corporation (the "BORROWER"), and ARCADIA
FINANCIAL LTD., a Minnesota corporation ("ARCADIA"), as servicer and as
originator.
WHEREAS, Arcadia is the owner of certain Receivables (as hereinafter
defined);
WHEREAS, Borrower desires to purchase certain of such Receivables;
WHEREAS, DLJ Mortgage Capital, Inc. (in its individual capacity, "DLJ")
has agreed, and other "Lenders" (as hereinafter defined) may from time to
time hereafter agree, to finance the purchase of such Receivables pursuant to
the Receivables Funding and Servicing Agreement (as hereinafter defined);
WHEREAS, Arcadia will service the Receivables transferred to Borrower
pursuant to the Receivables Funding and Servicing Agreement (as hereinafter
defined).
NOW, THEREFORE, Arcadia, the Borrower, the Collateral Agent and the
Agent, intending to be legally bound, hereby agree as follows:
Section 1. DEFINITIONS. For all purposes of this Agreement, the following
terms shall have the meanings set forth below, unless the context clearly
indicates otherwise. Capitalized terms used herein but not otherwise defined
shall have the meanings set forth in the Receivables Funding and Servicing
Agreement.
"AGENT" has the meaning specified in the PREAMBLE.
"AGREEMENT" means this Collateral Agent Agreement, as it may be amended,
supplemented or otherwise modified from time to time.
"AMOUNT AVAILABLE" means, with respect to any Distribution Date, the sum
of (a) the amount on deposit in the Collection Account as of the end of the
preceding Settlement Period plus (b) the amount transferred from the Reserve
Account on such Distribution Date pursuant to SECTION 4(a) or 4(b), if any,
and (c) any investment income earned on amounts on deposit in the Collection
Account and the Reserve Account since the prior Distribution Date (or the
Closing Date in the case of the first Distribution Date).
"ARCADIA" has the meaning specified in the PREAMBLE.
"AUTHORIZED REPRESENTATIVE" is defined in SECTION 11.
"BACKUP SERVICER FEE" means, with respect to any Distribution Date, the
fee set forth in a separate agreement of even date herewith between the
Borrower and the Backup Servicer.
"BORROWER" has the meaning specified in the PREAMBLE.
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"COLLATERAL AGENT" means Norwest Bank Minnesota, National Association,
not in its individual capacity, but solely as Collateral Agent under this
Agreement, and any successors thereto.
"COLLATERAL AGENT FEE" is defined in SECTION 5.
"EXCESS SERVICING FEE" means the amount of any servicing compensation
payable to any successor Servicer in excess of the Servicing Fee pursuant to
Section 13.3 of the Receivables Funding and Servicing Agreement.
"INCREASED COSTS" means collectively, any increased cost, loss or
liability owing to the Agent and/or any other Person under Article VI of the
Receivables Funding and Servicing Agreement.
"INDEMNITY AMOUNTS" means collectively, all indemnity obligations owing
to the Agent, any Investor and/or any entity which enters into a commitment
to make Advances or purchase interests therein under Article XVIII of the
Receivables Funding and Servicing Agreement.
"RECEIVABLES FUNDING AND SERVICING AGREEMENT" means the Receivables
Funding and Servicing Agreement, dated as of October 17, 1997, by and among
the Borrower, Arcadia, as Servicer and Custodian, DLJ, the Agent, and Norwest
Bank Minnesota, National Association, as Backup Servicer and Collateral Agent.
"RESERVE ACCOUNT REQUIRED AMOUNT" means, with respect to a Distribution
Date, the product of (a) the principal amount of the Advances outstanding on
such date (after giving effect to any payments of principal made on such date
in respect of such Advances) and (b) 2%.
SECTION 2. APPOINTMENT OF COLLATERAL AGENT. Subject to the terms and
conditions hereof, the Agent, on behalf of the Investors, hereby appoints,
Norwest Bank Minnesota, National Association, as Collateral Agent hereunder,
and Norwest Bank Minnesota, National Association hereby accepts such
appointment.
Section 3. DISTRIBUTIONS. () On each Distribution Date prior to the
Facility Termination Date, the Collateral Agent shall distribute, in
accordance with the applicable Servicer's Certificate, the Amount Available
in the following order of priority:
() FIRST, to the extent not previously paid by or on behalf of
the Borrower (A) to the Servicer, from the Amount Available, the
Servicing Fee for the related Settlement Period; (B) to the Collateral
Agent, the Collateral Agent Fee and other expenses due to the Collateral
Agent under the Transaction Documents; (C) to the Backup Servicer, the
Backup Servicer Fee and other expenses due to the Backup Servicer
pursuant to the Receivables Funding and Servicing Agreement and (D) to
the Agent, on behalf of itself and the Investors, the Fees payable on
such Distribution Date pursuant to the Fee Letter (and any Fees due and
not paid on a prior Distribution Date);
() SECOND, to the Agent, on behalf of the Investors, in an amount
equal to Yield on the Advances accrued during the preceding Settlement
Period (and any Yield with respect to any prior Settlement Period to the
extent not paid on a prior Distribution Date);
() THIRD, to the Agent, on behalf of the Investors, the principal
amount of Advances which are to be paid or prepaid to the extent then due
and owing including,
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without limitation, any amount of such principal
required to prevent the existence of a Borrowing Base Deficiency;
() FOURTH, to the Reserve Account, until the amount on deposit
therein is equal to the Reserve Account Required Amount;
() FIFTH, to the Agent, for the benefit of the Investors, any
Increased Costs then due and owing, and to each Indemnified Party, any
Indemnification Amounts then due and owing to each such Indemnified
Party; and
() SIXTH, to the Borrower, the remaining portion of the Amount
Available.
() On each Distribution Date on or after the Facility Termination Date,
the Collateral Agent shall distribute, in accordance with the applicable
Servicer's Certificate, the Amount Available in the following order of priority:
() FIRST, to the extent not previously paid by or on behalf of
the Borrower (A) to the Servicer, from the Amount Available, the
Servicing Fee for the related Collection Period; (B) to the Collateral
Agent the Collateral Agent Fee and other expenses due to the Collateral
Agent under the Transaction Documents; (C) to the Backup Servicer, the
Backup Servicer Fee and other expenses due to the Backup Servicer
pursuant to the Receivables Funding and Servicing Agreement; and (D) to
the Agent, on behalf of itself, the Investors and certain other Persons
named in the Fee Letter, any Fees payable on such Distribution Date
pursuant to the Fee Letter (and any Fees due and not paid on a prior
Distribution Date);
() SECOND, to the Agent on behalf of the Investors, an amount
equal to Yield on the Advances accrued during the preceding Settlement
Period (and any Yield with respect to any prior Settlement Period to the
extent not paid on a prior Distribution Date);
() THIRD, to the Agent, on behalf of the Investors, the principal
amount of all outstanding Advances;
() FOURTH, to the Agent, for the benefit of the Investors, any
Increased Costs then due and owing, and to each Indemnified Party, any
Indemnification Amounts then due and owing to each such Indemnified Party;
() FIFTH, to the Servicer, the Excess Servicing Fee, if any; and
() SIXTH, to the Borrower, the remaining portion of the Amount
Available.
() On each Settlement Date, the Collateral Agent shall, at the
direction of the Agent, withdraw from the Collection Account and distribute the
following amounts in the following order of priority:
() FIRST, to the Agent, on behalf of the Investors, Yield in
respect of any Advances being paid or prepaid on such date;
() SECOND, to the Agent, on behalf of the Investors, an amount
equal to the Advances being paid or prepaid on such date; and
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() THIRD, to the Borrower, the remaining amount, if any, of the
sum of the proceeds of any sale on such date of Pledged Receivables and
all amounts deposited into the Collection Account from the Reserve
Account pursuant to SECTION 4(b).
Section 4. THE RESERVE ACCOUNT AND THE COLLECTION ACCOUNT.() On each
Distribution Date, the Collateral Agent shall withdraw and deposit in the
Collection Account from the Reserve Account, in the following order of
priority based solely on information contained in the Servicer's Certificate
for the preceding Determination Date, amounts needed (after application of
the Amount Available to be made on such Distribution Date) to pay the amounts
described in clauses (i), (ii) and (iii) of paragraph (a) of SECTION 3. On
the first Distribution Date following the Facility Termination Date, the
Collateral Agent shall withdraw all amounts on deposit in the Reserve Account
and deposit such amounts in the Collection Account and at such time the
Reserve Account shall be closed.
() On each Settlement Date, the Collateral Agent shall, at the
direction of the Agent, withdraw from the Reserve Account the amount on
deposit in the Reserve Account in excess of the Reserve Account Required
Amount (after giving effect to all distributions to be made on such
Settlement Date pursuant to SECTION 3(a), (b) or (c), as applicable, and any
withdrawals to be made from the Reserve Account pursuant to paragraph (a) of
this SECTION 4) and deposit such amount into the Collection Account.
() All or a portion of the amounts on deposit in the Collection Account
and the Reserve Account shall be invested and reinvested by the Collateral
Agent at the direction of the Servicer in one or more Permitted Investments.
No such investment shall mature later than the next Distribution Date. All
income or other gains from investment of moneys on deposit in the applicable
account shall be deposited by the Collateral Agent in the applicable account
immediately upon receipt, and any loss resulting from such investment shall
be deducted from the amount on deposit in the applicable account. If any
amounts are needed for disbursement from the Collection Account or the
Reserve Account and sufficient uninvested funds are not available therein to
make such disbursement, the Collateral Agent shall cause to be sold or
otherwise converted to cash a sufficient amount of the investments in such
account to make such disbursement upon the direction of the Agent.
() If at any time the Collection Account or the Reserve Account ceases
to be an Eligible Account, the Agent shall transfer such account to another
institution such that such account shall meet the requirements of an Eligible
Account.
Section 5. FEES AND EXPENSES OF THE COLLATERAL AGENT. It is understood
that the Collateral Agent shall be entitled to charge fees and receive
reimbursement for expenses (such fees and reimbursement are referred to
hereinafter as the "COLLATERAL AGENT FEE") and such Collateral Agent Fee
shall be solely an obligation of the Borrower and not of any other Person.
Such agreed upon Collateral Agent Fee shall be set forth in a separate fee
letter submitted by the Collateral Agent to the Borrower.
SECTION 6. REPRESENTATIONS AND WARRANTIES OF THE COLLATERAL AGENT. The
Collateral Agent represents and warrants as of the date hereof that:
() It is a national banking association duly organized, validly
existing and in good standing under the laws of the United States of America;
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() It has full power, authority and legal right to execute, deliver and
perform this Agreement and the Receivables Funding and Servicing Agreement
and has taken all necessary action to authorize the execution, delivery and
performance by it of this Agreement and the Receivables Funding and Servicing
Agreement;
() The execution, delivery and performance by it of this Agreement and
the Receivables Funding and Servicing Agreement do not violate (i) any
provision of any law or regulation governing the banking and trust powers of
it or any order, writ, judgment, or decree of any court, arbitrator, or
governmental authority applicable to it or any of its assets or (ii) any
provision of its corporate charter or by-laws;
() The execution, delivery and performance by it of this Agreement and
the Receivables Funding and Servicing Agreement do not require the
authorization, consent or approval of, the giving of notice to, the filing or
registration with, or the taking of any other action in respect of, any
governmental authority or agency regulating its banking and corporate trust
activities; and
() This Agreement and the Receivables Funding and Servicing Agreement
have been duly executed and delivered by it and constitute the legal, valid
and binding agreements of it, enforceable in accordance with their terms,
except as enforceability may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of creditors'
rights generally and by general principles of equity.
Section 7. RESIGNATION BY AND REMOVAL OF THE COLLATERAL AGENT; SUCCESSOR
COLLATERAL AGENT. () The Collateral Agent may at any time resign and
terminate its obligations under this Agreement upon at least 60 days prior
written notice to the Agent. Promptly after receipt of notice of the
Collateral Agent's resignation, the Agent shall appoint, by written
instrument, a successor collateral agent. If a successor collateral agent is
not appointed in accordance with the foregoing procedures, the Collateral
Agent may petition a court of competent jurisdiction to appoint a successor
collateral agent. One (1) original counterpart of such instrument of
appointment shall be delivered to each of the Agent, the Collateral Agent and
the successor collateral agent.
() The Agent, with cause, upon at least 60 days written notice to the
Collateral Agent, may remove and discharge the Collateral Agent (or any
successor collateral agent thereafter appointed) from the performance of its
obligations under this Agreement. A copy of such notice shall be delivered
to each other party hereto. Promptly after the giving of notice of removal
of the Collateral Agent, the Agent shall appoint, by written instrument, a
successor collateral agent. One (1) original counterpart of such instrument
of appointment shall be delivered to each of the Agent, the Collateral Agent
and the successor collateral agent.
() In the event of any such resignation or removal, the Collateral
Agent shall promptly transfer to the successor collateral agent, as directed
in writing by the Agent, all accounts, funds and investments being
administered under this Agreement.
Section 8. INDEMNITY. The Borrower and Arcadia agree, jointly and
severally, to indemnify and hold harmless the Collateral Agent and its
directors, officers, agents and employees against any and all claims,
damages, losses, liabilities or expenses (including, but not limited to,
reasonable attorneys' fees, court costs and costs of investigation) of any
kind or nature whatsoever arising out of or in connection with this Agreement
and the Transaction Documents that may be imposed upon, incurred by or
asserted against the Collateral Agent; PROVIDED, HOWEVER, that this SECTION 8
shall not relieve the Collateral Agent from liability for its willful
misfeasance,
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bad faith or gross negligence. The provisions of this SECTION 8 shall
survive the resignation or removal of the Collateral Agent or any successor
collateral agent and the termination of this Agreement.
Section 9. LIMITATIONS OF LIABILITY. () The Collateral Agent shall not be
liable to the Borrower, the Servicer, the Agent, any Investor or any other
Person with respect to any action taken or not taken by it in good faith in
the performance of its obligations under this Agreement. The obligations of
the Collateral Agent shall be determined solely by the express provisions of
this Agreement. No representation, warranty, covenant, agreement, obligation
or duty of the Collateral Agent shall be implied with respect to this
Agreement or the Collateral Agent's services hereunder.
() The Collateral Agent may rely, and shall be protected in acting or
refraining to act, upon and need not verify the accuracy of (i) any oral
instructions from any persons the Collateral Agent believes to be authorized
to give such instructions, who shall only be, with respect to the Servicer,
the Borrower and the Agent, persons the Collateral Agent believes in good
faith to be Authorized Representatives and (ii) any written instruction,
notice, order, request, direction, certificate, opinion or other instrument
or document believed by the Collateral Agent to be genuine and to have been
signed and presented by the proper party or parties, which, with respect to
the Borrower, the Servicer and the Agent, shall mean signature and
presentation by Authorized Representatives whether such presentation is by
personal delivery, express delivery or facsimile.
() The Collateral Agent may consult with counsel nationally recognized
in the area of commercial transactions with regard to legal questions arising
out of or in connection with this Agreement, and the advice or opinion of
such counsel shall be full and complete authorization and protection in
respect of any action taken, omitted or suffered by the Collateral Agent in
reasonable reliance, in good faith, and in accordance therewith; PROVIDED,
HOWEVER, that if the Agent gives instructions to the Collateral Agent or
provides an opinion of counsel selected by them, which in either case
conflicts with any such advice or opinion of counsel, then the Collateral
Agent shall follow such instructions of the Agent (unless such instructions
violate the express terms of this Agreement or violate applicable law) or
such opinion of counsel selected by the Agent, and shall be fully protected
in acting or refraining to act thereon.
() No provision of this Agreement shall require the Collateral Agent to
expend or risk its own funds or otherwise incur financial liability in the
performance of its duties under this Agreement if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity is
not reasonably assured to it.
Section 10. TERM OF AGREEMENT. This Agreement shall be terminated upon
the final payment of all obligations of the Borrower under the Transaction
Documents and the termination of any commitment of the Lenders under the
Transaction Documents.
Section 11. AUTHORIZED REPRESENTATIVES. The names of the officers of the
Servicer, the Borrower and the Agent who are authorized to give and receive
notices, requests and instructions and to deliver certificates and documents
in connection with this Agreement on behalf of the Servicer, the Borrower and
the Agent ("AUTHORIZED REPRESENTATIVES") are set forth in EXHIBIT A hereto,
along with the specimen signature of each such officer. From time to time,
the Servicer, the Borrower and the Agent may, by delivering to the Collateral
Agent a revised exhibit, change the information previously given, but the
Collateral Agent shall be entitled to rely conclusively on the most recent
exhibit until receipt of a superseding exhibit.
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Section 12. NOTICES. All demands, notices and communications relating to
this Agreement shall be in writing and shall be deemed to have been duly
given when received by the other party or parties at the address shown below,
whether by personal delivery, express delivery or facsimile, or such other
address as may hereafter be furnished to the other party or parties by like
notice. Any such demand, notice or communication hereunder shall be deemed
to have been received on the date delivered to or received at the premises of
the addressee.
If to the Borrower:
Arcadia Receivables Finance Corp. III
c/o Arcadia Financial Ltd.
0000 Xxxxxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxx, XX 00000-0000
Attn: Treasurer
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to the Servicer:
Arcadia Financial Ltd.
0000 Xxxxxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxx, XX 00000-0000
Attn: Treasurer
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to the Collateral Agent:
Norwest Bank Minnesota, National Association,
as Collateral Agent
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000-0000
Attn: Corporate Trust Services - Asset-Backed Administration
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to the Agent:
DLJ Mortgage Capital, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn:
Telephone: (212) 892-____
Telecopy: (000) 000-0000
SECTION . GOVERNING LAW; VENUE; CONSENT TO JURISDICTIONSECTION 13.
GOVERNING LAW; VENUE; CONSENT TO JURISDICTION. (A) THIS AGREEMENT SHALL BE
A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW
YORK, WITHOUT REGARD TO ANY OTHERWISE APPLICABLE
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CONFLICT OF LAW PRINCIPLES THEREOF (OTHER THAN SECTION 5-1401 OF THE NEW YORK
GENERAL OBLIGATIONS LAW).
(B) VENUE FOR ANY ACTION BROUGHT UNDER THIS AGREEMENT MAY BE IN THE
FEDERAL DISTRICT COURT SITTING IN NEW YORK, NEW YORK. EACH PARTY TO THIS
AGREEMENT HEREBY CONSENTS TO THE JURISDICTION OF SUCH COURT.
Section 14. ASSIGNMENT. Except as expressly permitted herein, no party to
this Agreement may assign its rights or delegate its obligations under this
Agreement without the express written consent of the other parties.
Section 15. COUNTERPARTS. For the purpose of facilitating the execution
of this Agreement and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which shall be deemed
to be an original, and together shall constitute and be one and the same
instrument.
Section 16. HEADINGS. The section headings are not part of this Agreement
and shall not be used in its interpretation.
Section 17. THIRD PARTY BENEFICIARIES. It is hereby agreed by the parties
hereto that, each Lender and any Investor are, and are intended to be, third
party beneficiaries under this Agreement.
SECTION 18. CERTAIN REMEDIES. () The Collateral Agent may, in its
discretion but with the consent of the Agent, and shall, at the direction of
the Agent, proceed to protect and enforce its rights and the rights of the
Investors by such appropriate proceedings as the Collateral Agent or the
Agent shall deem most effective to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in any
Transaction Document or in aid of the exercise of any power granted herein,
or to enforce any other proper remedy or legal or equitable right vested in
the Collateral Agent by any Transaction Document or by law.
() In case there shall be pending, relative to the Borrower or any
other obligor upon the Note or any Person having or claiming an ownership
interest in the Collateral proceedings under the Bankruptcy Code or any other
applicable federal or state bankruptcy, insolvency or other similar law, or
in case a receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, sequestrator or similar official shall have been appointed for or
taken possession of the Borrower or its property or such other obligor or
Person, or in case of any other comparable judicial proceedings relative to
the Borrower or other obligor upon the Notes, or to the creditors of property
of the Borrower or such other obligor, the Collateral Agent, irrespective of
whether the principal of any Notes shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the
Collateral Agent shall have made any demand pursuant to the provisions of
this Section, shall be entitled and empowered, by intervention in such
proceedings or otherwise:
() to file and prove a claim or claims for the whole amount of
principal and Yield owing and unpaid in respect of the Notes and to file
such other papers or documents as may be necessary or advisable in order
to have the claims of the Collateral Agent (including any claim for
reasonable compensation to the Collateral Agent and each predecessor
Collateral Agent, and their respective agents, attorneys and counsel, and
for reimbursement of all expenses and liabilities incurred, and all
advances, if any, made, by the Collateral
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Agent and each predecessor Collateral Agent, except as a result of
negligence, bad faith or wilful misconduct) and of the Investors allowed
in such proceedings;
() unless prohibited by applicable law and regulations, to vote on
behalf of the holders of the Note in any election of a trustee, a standby
trustee or person performing similar functions in any such proceedings;
() to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute all amounts received
with respect to the claims of the Investors and of the Collateral Agent
on their behalf; and
() to file such proofs of claim and other papers or documents as
may be necessary or advisable in order to have the claims of the
Collateral Agent or the Investors allowed in any judicial proceedings
relative to the Collateral Agent, its creditors and its property;
and any trustee, receiver, liquidator, custodian or other similar official in
any such proceeding is hereby authorized by each of such Investors to make
payments to the Collateral Agent, and, in the event that the Collateral Agent
shall consent to the making of payments directly to such Investors, to pay to
the Collateral Agent such amounts as shall be sufficient to cover reasonable
compensation to the Collateral Agent, each predecessor Collateral Agent and
their respective agents, attorneys and counsel, and all other expenses and
liabilities incurred, and all advances made, by the Collateral Agent and each
predecessor Collateral Agent except as a result of negligence, bad faith or
wilful misconduct.
() Nothing herein contained shall be deemed to authorize the Collateral
Agent to authorize or consent to or vote for or accept or adopt on behalf of
any Investor any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any holder thereof or to
authorize the Collateral Agent to vote in respect of the claim of any
Investor in any such proceeding except, as aforesaid, to vote for the
election of a trustee in bankruptcy or similar person.
() All rights of action and of asserting claims under the Transaction
Documents, may be enforced by the Collateral Agent without the possession of
any of the Note or the production thereof in any trial or other proceedings
relative thereto, and any such action or proceedings instituted by the
Collateral Agent shall be brought in its own name as Collateral Agent, and
any recovery of judgment, subject to the payment of the expenses,
disbursements and compensation of the Collateral Agent, each predecessor
Collateral Agent and their respective agents and attorneys, shall be for the
ratable benefit of the holders of the Note.
() In any proceedings brought by the Collateral Agent to enforce the
Liens under the Transaction Documents(and also any proceedings involving the
interpretation of any provision of any Transaction Document), the Collateral
Agent shall be held to represent all the Investors, and it shall not be
necessary to make any Investor a party to any such proceedings.
SECTION 19. REMEDIES. The Agent may, or the Collateral Agent shall, at
the direction of the Agent, also do one or more of the following (subject to
SECTIONS 9 AND 18):
() institute Proceedings in its own name and on behalf of the
Investors as Collateral Agent for the collection of all amounts then
payable on the Note or under the Receivables Funding and Servicing
Agreement with respect thereto, whether by declaration or otherwise,
enforce any judgment obtained, and collect from the Borrower and any
other obligor upon such Note moneys adjudged due;
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() institute Proceedings from time to time for the complete or
partial foreclosure upon the Collateral;
() exercise any remedies of a secured party under the UCC and take
any other appropriate action to protect and enforce the right and
remedies of the Collateral Agent, the Agent and the holders of the Note;
and
() sell the Collateral or any portion thereof or rights or
interest therein, at one or more public or private sales called and
conducted in any manner permitted by law; provided, however, that after
the Remarketing Date, the Agent may not, and may not direct the
Collateral Agent to, sell or otherwise liquidate the Collateral following
a Facility Termination Event unless
() all holders of the Note consent thereto,
() the proceeds of such sale or liquidation
distributable to the Investors are sufficient to
discharge in full all amounts then due and unpaid upon
such Note for principal and interest, or
() the Agent determines that the Collateral will
not continue to provide sufficient funds for the payment
of principal of and Yield on the Note as they would have
become due if the Note had not been declared due and
payable, and the Agent obtains the consent of holders of
66-2/3% of the outstanding amount of the Note.
In determining such sufficiency or insufficiency with respect to clause
(y) and (z), the Collateral Agent 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 Collateral for such purpose.
Section 20. OPTIONAL PRESERVATION OF THE RECEIVABLES. If the Notes have
been declared to be due and payable following a Facility Termination Event,
and such declaration and its consequences have not been rescinded and
annulled, the Agent may, but need not, elect to direct the Collateral Agent
to maintain possession of the Collateral pursuant to the terms of a separate
agreement which is mutually acceptable to the Agent and the Collateral Agent.
It is the desire of the parties hereto and the Investors that there be at
all times sufficient funds for the payment of principal of and Yield on the
Note, and the Agent shall take such desire into account when determining
whether or not to direct the Collateral Agent to maintain possession of the
Collateral. In determining whether to direct the Collateral Agent to
maintain possession of the Collateral, the Agent 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 Collateral for such purpose.
[Signature Pages to Follow]
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IN WITNESS WHEREOF, the parties hereto have caused their duly authorized
representatives to hereunto set their hand as of the day and year first above
written.
DLJ MORTGAGE CAPITAL, INC., as Agent
By:_______________________
Name:
Title:
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Collateral Agent
By:
Name:
Title:
ARCADIA RECEIVABLES FINANCE
CORP. III
By:
Name:
Title:
ARCADIA FINANCIAL LTD.
By:
Name:
Title:
[Signature Page to Collateral Agent Agreement]
EXHIBIT A
AUTHORIZED REPRESENTATIVES
ARCADIA FINANCIAL LTD.
NAME SPECIMEN SIGNATURE
_______________________ _____________________________
_______________________ _____________________________
ARCADIA RECEIVABLES FINANCE CORP. III
NAME SPECIMEN SIGNATURE
_____________________ _____________________________
_____________________ _____________________________
DLJ MORTGAGE CAPITAL, INC.
NAME SPECIMEN SIGNATURE
_____________________ _____________________________
_____________________ _____________________________
X-00
XXXXXXXXXX XXXXX XXXXXXXXX
xxxxx
XXX MORTGAGE CAPITAL, INC.,
as Agent,
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION,
as Collateral Agent,
ARCADIA FINANCIAL LTD.
and
ARCADIA RECEIVABLES FINANCE CORP. III
Dated October 17, 1997
TABLE OF CONTENTS
PAGE
Section 1. Definitions. . . . . . . . . . . . . . . . . . . . . . . 1
Section 2. Appointment of Collateral Agent. . . . . . . . . . . . . 2
Section 3. Distributions. . . . . . . . . . . . . . . . . . . . . . 2
Section 4. The Reserve Account and the Collection Account . . . . . 4
Section 5. Fees And Expenses Of The Collateral Agent. . . . . . . . 5
Section 6. Representations And Warranties Of The Collateral Agent . 5
Section 7. Resignation By And Removal Of The Collateral Agent;
Successor Collateral Agent . . . . . . . . . . . . . . . 5
Section 8. Indemnity. . . . . . . . . . . . . . . . . . . . . . . . 6
Section 9. Limitations Of Liability . . . . . . . . . . . . . . . . 6
Section 10. Term Of Agreement. . . . . . . . . . . . . . . . . . . . 7
Section 11. Authorized Representatives . . . . . . . . . . . . . . . 7
Section 12. Notices. . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 13. Governing Law; Venue; Consent to Jurisdiction. . . . . . 8
Section 14. Assignment . . . . . . . . . . . . . . . . . . . . . . . 9
Section 15. Counterparts . . . . . . . . . . . . . . . . . . . . . . 9
Section 16. Headings . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 17. Third Party Beneficiaries. . . . . . . . . . . . . . . . 9
Section 18. Certain Remedies . . . . . . . . . . . . . . . . . . . . 9
Section 19. Remedies . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 20. Optional Preservation of the Receivables . . . . . . . . 12
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