EXECUTION COPY
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AMENDMENT NO. 3
Dated as of January 17, 1997
to
SALE AND SERVICING AGREEMENT
Dated as of December 28, 1995
among
OLYMPIC AUTOMOBILE RECEIVABLES WAREHOUSE TRUST
Issuer
OLYMPIC RECEIVABLES FINANCE CORP. II
Seller
OLYMPIC FINANCIAL LTD.
In its individual capacity and as Servicer
and
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION
Backup Servicer
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS
ARTICLE II
AMENDMENT
SECTION 2.1. Amendment to Section 1.1 of the Sale and Servicing
Agreement . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 2.2. Amendment to Section 2.1 of the Sale and Servicing
Agreement . . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 2.3. Amendment to Section 3.6 of the Sale and Servicing
Agreement . . . . . . . . . . . . . . . . . . . . . . . 4
ARTICLE III
MISCELLANEOUS
SECTION 3.1. Counterparts. . . . . . . . . . . . . . . . . . . . . . 4
SECTION 3.2. Governing Law; Entire Agreement . . . . . . . . . . . . 5
SECTION 3.3. Headings. . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 3.4. Sale and Servicing Agreement in Full Force and
Effect as Amended . . . . . . . . . . . . . . . . . . . 5
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AMENDMENT NO. 3 dated as of January 17, 1997 (the "AMENDMENT") to SALE AND
SERVICING AGREEMENT dated as of December 28, 1995 and amended as of June 12,
1996 and September 30, 1996 (as amended, the "SALE AND SERVICING AGREEMENT"),
among Olympic Automobile Receivables Warehouse Trust (the "ISSUER"), Olympic
Receivables Finance Corp. II, a Delaware corporation, as Seller (the "SELLER"),
Olympic Financial Ltd., a Minnesota corporation, in its individual capacity and
as Servicer, (the "SERVICER") and Norwest Bank Minnesota, National Association,
a national banking association, as Backup Servicer (the "BACKUP SERVICER").
WHEREAS, the Issuer, the Seller, the Servicer and the Backup Servicer have
entered into the Sale and Servicing Agreement;
WHEREAS, pursuant to Section 10.1(b) of the Sale and Servicing Agreement,
the Issuer, the Seller and the Servicer desire to amend the Sale and Servicing
Agreement in certain respects as provided below;
WHEREAS, each of the Indenture Trustee, the Backup Servicer, a Certificate
Majority and a Note Majority has consented to this Amendment as required by
Section 10.1(b) of the Sale and Servicing Agreement;
WHEREAS, it is the intent of the parties that this Amendment be effective
as of the date set forth above (the "EFFECTIVENESS DATE");
NOW, THEREFORE, the parties to this Amendment 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
Sale and Servicing Agreement.
ARTICLE II
AMENDMENT
SECTION 2.1. AMENDMENT TO SECTION 1.1 OF THE SALE AND SERVICING AGREEMENT.
(a) The definition of "AVERAGE NET EXCESS SPREAD PERCENTAGE" is hereby
amended to read in its entirety as follows:
"(i) As of (x) the first Determination Date on which there are
Receivables in the Trust or (y) the second Determination Date on which
there are Receivables in the Trust immediately following a Trust Property
Liquidation Date, or if no Trust Property Liquidation Date has occurred,
the Closing Date, in case of the first such Determination Date, the Net
Excess Spread Percentage as of the Accounting Date for the related Monthly
Period and in the case of the second such Determination Date, the average
of the Net Excess Spread Percentages for the two preceding Monthly Periods,
calculated as of the Accounting Date of each such Monthly Period; and (ii)
as of any subsequent Determination Date on which there are Receivables in
the Trust, the average of the Net Excess Spread Percentages for the three
preceding Monthly Periods during which there were Receivables in the
Trust, calculated as of the Accounting Date of each such Monthly Period."
(b) The definition of "ELIGIBLE INTEREST RATE CAP AGREEMENT" in Section
1.1 of the Sale and Servicing Agreement is hereby amended by adding the
following immediately after clause (ii) thereof:
(iii) is purchased in a minimum notional amount of at least
$100,000,000;
(c) The definition of "ELIGIBLE INTEREST RATE CAP AGREEMENT" in Section 1.1
of the Sale and Servicing Agreement is hereby further amended by renumbering
clause (iii) as clause (iv), clause (iv) as clause (v), clause (v) as clause
(vi), clause (vi) as clause (vii), clause (vii) as clause (viii) and clause
(viii) as clause (ix).
(d) The definition of "REQUISITE AMOUNT" in Section 1.1 of the Sale and
Servicing Agreement is hereby amended to read in its entirety as follows:
"As of any Determination Date, (i) if no Trigger Event shall have
occurred, and all previous Trigger Events shall have been Deemed Cured,
4.0% of the sum of the Note Balance on such Determination Date PLUS the
Certificate Balance on such Determination Date; and (ii) if a Trigger
Event shall have occurred (and until such Trigger Event shall have been
Deemed Cured), (x) if such Trigger Event is of the type described in clause
(i) of the definition thereof, 1.0% of the Maximum Program Size PLUS 4.0%
of the sum of the Note Balance on such Determination Date PLUS the
Certificate Balance on such Determination Date, (y) if such Trigger Event
is of the type described in clause (ii) of the definition thereof, 2.0% of
the Maximum Program Size PLUS 4.0% of the sum of the Note Balance on such
Determination Date PLUS the Certificate Balance on such Determination Date,
and (z) if such Trigger Event is of the type described in clauses (iii) or
(iv) of the definition thereof, an unlimited amount."
(e) The definition of "TRIGGER EVENT" in Section 1.1 of the Sale and
Servicing Agreement is hereby amended to read in its entirety as follows:
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TRIGGER EVENT: As of any Determination Date, (i) if the Net
Excess Spread Percentage shall be less than 5.0% but equal to or
greater than 4.0%; (ii) if the Net Excess Spread Percentage shall be
less than 4.0% but equal to or greater than 3.0%; (iii) if the Net
Excess Spread Percentage shall be less than 3.0% and (iv) if the
Warehousing Loss Ratio shall exceed 0.75%.
(f) Section 1.1. of the Sale and Servicing Agreement is hereby further
amended by adding the following defined terms and definitions:
FINANCED REPOSSESSIONS: Receivables with respect to loans financing
the purchase of Vehicles that were previously repossessed by or for the
benefit of the Servicer.
WAREHOUSING PERIOD: (i) The period beginning upon the first sale of
Receivables to the Trust and ending on the day immediately preceding a
Trust Property Liquidation Date on which all of the Receivables in the
Trust are purchased and (ii) thereafter, any period beginning upon the
first sale of Receivables to the Trust immediately following a Trust
Property Liquidation Date on which all of the Receivables in the Trust are
purchased and ending on the day immediately preceding a Trust Property
Liquidation Date on which all of the Receivables in the Trust are
purchased.
SECTION 2.2. AMENDMENT TO SECTION 2.1 OF THE SALE AND SERVICING AGREEMENT.
(a) Section 2.1(b)(1) of the Sale and Servicing Agreement is hereby
amended by adding the following subsection immediately following Section
2.1(b)(1)(xv):
(xvi) after giving effect to the conveyance of Receivables on such
Transfer Date, the aggregate of the Principal Balances of Receivables
attributable to loans classified as Financed Repossessions shall not exceed
3.0% of the aggregate of the Principal Balances of all Receivables on such
Transfer Date;
(b) Section 2.1(b)(1) of the Sale and Servicing Agreement is hereby
further amended by renumbering Section 2.1(b)(1)(xvi) as
Section 2.1(b)(1)(xvii), by renumbering Section 2.1 (b)(1)(xvii) as
Section 2.1(b)(1)(xviii) and by renumbering Section 2.l(b)(1)(xviii) as
Section 2.1(b)(1)(xix).
(c) Section 2.1(b)(1)(xvi) of the Sale and Servicing Agreement is hereby
amended by deleting the reference to "1.0%" and substituting therefor "4.0%".
(d) Clause (D) of Section 2.1(c)(2)(ix) of the Sale and Servicing
Agreement is hereby amended to read in its entirety as follows:
(D) the Average Net Excess Spread Percentage shall be less than 4.0%;
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(e) Section 2.1(c)(2) of the Sale and Servicing Agreement is hereby
amended by adding the following subsection immediately following
Section 2.1(c)(2)(x):
(xi) Any Warehousing Period exceeds 120 days.
SECTION 2.3. AMENDMENT TO ARTICLE III OF THE SALE AND SERVICING AGREEMENT.
Article III of the Sale and Servicing Agreement is hereby amended by adding the
following section immediately following Section 3.18:
Section 3.19. MONTHLY REPORTS. The Servicer (if OFL is the Servicer)
shall deliver to JPMD on or prior to the 20th of each month (or if the
twentieth is not a Business Day, the next succeeding Business Day), the
"Internal Static Pool Analysis" with respect to the Receivables and OFL's
"Credit Administration" report (together, the "MONTHLY REPORTS"), in each
case with respect to the immediately preceding Monthly Period. If JPMD
does not receive the Monthly Reports in accordance with the preceding
sentence, JPMD shall provide written notice of non-delivery thereof to the
Servicer.
SECTION 2.4. AMENDMENT TO SECTION 8.1 OF THE SALE AND SERVICING AGREEMENT.
Section 8.1(b) of the Sale and Servicing Agreement is hereby amended by
inserting the following immediately following the words "Servicer's Certificate"
in such section:
"or failure by the Servicer (if OFL is the Servicer) to deliver to
JPMD the Monthly Reports required by SECTION 3.19 within 10 days of
receipt of the notice of non-delivery required under SECTION 3.19"
SECTION 2.5. AMENDMENT TO SCHEDULE B TO SALE AND SERVICING AGREEMENT.
(a) Clause 28(D)(i) of Schedule B is hereby amended (i) by deleting the
reference to "72" and substituting therefor "73" and (ii) by deleting the word
"and" at the end of such clause.
(b) Clause 28(D)(ii) of Schedule B is hereby amended by deleting the
reference to "40%" and substituting therefor "55%".
(c) Clause 28(D) is hereby amended by adding the following immediately
following clause (ii) thereof:
"; and (iii) the aggregate of the Principal Balances of Receivables
attributable to loans classified as Financed Repossessions shall not
exceed 3.0% of the aggregate of the Principal Balances of all
Receivables on such Transfer Date"
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ARTICLE III
MISCELLANEOUS
SECTION 3.1. COUNTERPARTS. This Amendment 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. This Amendment shall become effective when: (1) the Servicer
shall have received (a) counterparts hereof executed on behalf of the Issuer,
the Seller and the Servicer, (b) the consents of the Backup Servicer, the
Indenture Trustee and JPMD, as sole Certificateholder, and as Administrative
Agent for Delaware Funding Corporation, the sole Noteholder, to the terms of
this Amendment and (c) evidence of written notice to Standard & Poor's and
Xxxxx'x of this Amendment and (2) OFL shall have caused the delivery to JPMD
of an Opinion of Counsel with respect to truesale and non-substantive
consolidation matters (or a bring-down of the Opinion of Counsel with respect
to these matters delivered on the Closing Date) satisfactory to JPMD.
SECTION 3.2. GOVERNING LAW; ENTIRE AGREEMENT. THIS AMENDMENT SHALL BE
DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE
STATE OF NEW YORK. This Amendment and the Sale and Servicing Agreement (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 Amendment are inserted
for convenience only and shall not affect the meaning or interpretation of this
Amendment or any provisions hereof or thereof.
SECTION 3.4. SALE AND SERVICING AGREEMENT IN FULL FORCE AND EFFECT AS
AMENDED. Except as specifically stated herein, all of the terms and conditions
of the Sale and Servicing Agreement shall remain in full force and effect. All
references to the Sale and Servicing Agreement in any other document or
instrument shall be deemed to mean the Sale and Servicing Agreement, as amended
by this Amendment. This Amendment shall not constitute a novation of the Sale
and Servicing Agreement, but shall constitute an amendment thereto. The parties
hereto agree to be bound by the terms and obligations of the Sale and Servicing
Agreement, as amended by this Amendment, as though the terms and obligations of
the Sale and Servicing Agreement were set forth herein.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their authorized officers, all as of the date and
year first above written.
ISSUER:
OLYMPIC AUTOMOBILE RECEIVABLES
WAREHOUSE TRUST
By WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Owner Trustee
By:
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Name:
Title:
SELLER:
OLYMPIC RECEIVABLES FINANCE CORP. II
By:
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Name:
Title:
SERVICER:
OLYMPIC FINANCIAL LTD.,
in its individual capacity and as
Servicer
By:
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Name:
Title:
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AGREED AND CONSENTED:
BACKUP SERVICER:
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, not in its individual
capacity but as Backup Servicer
By:
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Name:
Title:
INDENTURE TRUSTEE:
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, not in its individual
capacity but as Indenture Trustee
By:
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Name:
Title:
XXXXXX GUARANTY TRUST COMPANY OF NEW
YORK, as sole Certificateholder, and as
Administrative Agent for Delaware
Funding Corporation, as sole Noteholder
By:
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Name:
Title:
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