EXECUTION COPY
RECEIVABLES PURCHASE AGREEMENT AND ASSIGNMENT
between
OLYMPIC RECEIVABLES FINANCE CORP.
Purchaser
and
OLYMPIC FINANCIAL LTD.
Seller
dated as of
March 1, 1997
TABLE OF CONTENTS
Page
----
ARTICLE I DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.1. General. . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.2. Specific Terms . . . . . . . . . . . . . . . . . . . . 2
SECTION 1.3. Usage of Terms . . . . . . . . . . . . . . . . . . . . 4
SECTION 1.4. Certain References . . . . . . . . . . . . . . . . . . 5
SECTION 1.5. No Recourse. . . . . . . . . . . . . . . . . . . . . . 5
SECTION 1.6. Action by or Consent of Noteholders
or Certificateholders. . . . . . . . . . . . . . . . . 5
SECTION 1.7. Material Adverse Effect. . . . . . . . . . . . . . . . 5
ARTICLE II CONVEYANCE OF THE INITIAL RECEIVABLES
AND THE INITIAL OTHER CONVEYED PROPERTY . . . . . . . . . . 6
SECTION 2.1. Conveyance of the Initial Receivables
and the Initial Other Conveyed Property. . . . . . . . 6
SECTION 2.2. Purchase Price of Initial Receivables. . . . . . . . . 6
SECTION 2.3. Conveyance of Subsequent Receivables and
Subsequent Other Conveyed Property . . . . . . . . . . 6
ARTICLE III REPRESENTATIONS AND WARRANTIES. . . . . . . . . . . . . . . 9
SECTION 3.1. Representations and Warranties of OFL. . . . . . . . . 9
SECTION 3.2. Representations and Warranties of ORFC . . . . . . . . 10
ARTICLE IV COVENANTS OF OFL. . . . . . . . . . . . . . . . . . . . . . 13
SECTION 4.1. Protection of Title of ORFC and the Trust. . . . . . . 13
SECTION 4.2. Other Liens or Interests . . . . . . . . . . . . . . . 14
SECTION 4.3. Costs and Expenses . . . . . . . . . . . . . . . . . . 14
SECTION 4.4. Indemnification. . . . . . . . . . . . . . . . . . . . 14
ARTICLE V REPURCHASES. . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 5.1. Repurchase of Receivables Upon Breach of
Warranty . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 5.2. Reassignment of Purchased Receivables. . . . . . . . . 17
SECTION 5.3. Waivers. . . . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE VI MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 6.1. Liability of OFL . . . . . . . . . . . . . . . . . . . 18
SECTION 6.2. Failure of OFL to Sell Subsequent Receivables. . . . . 18
SECTION 6.3. Merger or Consolidation of OFL or ORFC . . . . . . . . 18
SECTION 6.4. Limitation on Liability of OFL and Others. . . . . . . 19
SECTION 6.5. OFL May Own Notes or Certificates. . . . . . . . . . . 20
SECTION 6.6. Amendment. . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 6.7. Notices. . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 6.8. Merger and Integration . . . . . . . . . . . . . . . . 21
SECTION 6.9. Severability of Provisions . . . . . . . . . . . . . . 21
SECTION 6.10. Intention of the Parties . . . . . . . . . . . . . . . 21
SECTION 6.11. Governing Law . . . . . . . . . . . . . . . . . . . . 22
SECTION 6.12. Counterparts . . . . . . . . . . . . . . . . . . . . . 22
SECTION 6.13. Conveyance of the Initial Receivables and the
Initial Other Conveyed Property to the Trust . . . . . 22
SECTION 6.14. Nonpetition Covenant . . . . . . . . . . . . . . . . . 22
SCHEDULES
Schedule A -- Schedule of Initial Receivables
Schedule B -- Representations and Warranties of OFL
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RECEIVABLES PURCHASE AGREEMENT AND ASSIGNMENT
THIS RECEIVABLES PURCHASE AGREEMENT AND ASSIGNMENT, dated as of
March 1, 1997, executed between Olympic Receivables Finance Corp., a Delaware
corporation, as purchaser ("ORFC"), and Olympic Financial Ltd., a Minnesota
corporation, as seller ("OFL").
W I T N E S S E T H:
WHEREAS, ORFC has agreed to purchase from OFL and OFL, pursuant to one
or more Assignments pursuant to a Receivables Purchase Agreement and Assignment,
dated as of December 3, 1996, between ORFC and OFL (the "ARCC Purchase
Agreement"), has transferred to ORFC certain of the Initial Receivables and
Initial Other Conveyed Property;
WHEREAS, ORFC has agreed to purchase from OFL and OFL, pursuant to
this Agreement, is transferring to ORFC the remainder of the Initial Receivables
and Initial Other Conveyed Property; and
WHEREAS, ORFC has agreed to purchase (or has purchased) from OFL and
OFL has agreed to transfer (or has transferred) to ORFC the Subsequent
Receivables and Subsequent Other Conveyed Property in an amount set forth
herein.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements hereinafter contained, and for other good and valuable consideration,
the receipt of which is acknowledged, ORFC and OFL, intending to be legally
bound, hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. GENERAL. The specific terms defined in this Article
include the plural as well as the singular. The words "herein," "hereof" and
"hereunder" and other words of similar import refer to this Agreement as a whole
and not to any particular Article, Section or other subdivision, and Article,
Section, Schedule and Exhibit references, unless otherwise specified, refer to
Articles and Sections of and Schedules and Exhibits to this Agreement.
Capitalized terms used herein without definition shall have the respective
meanings assigned to such terms in the Sale and Servicing Agreement, dated as of
March 1, 1997, by and among Olympic Receivables Finance Corp. (as Seller),
Olympic Financial Ltd. (in its individual capacity and as Servicer), Olympic
Automobile Receivables Trust, 1997-A (as Issuer) (the "Trust") and Norwest Bank
Minnesota, National Association, a national banking association (as Backup
Servicer).
SECTION 1.2. SPECIFIC TERMS. Whenever used in this Agreement, the
following words and phrases, unless the context otherwise requires, shall have
the following meanings:
"AGREEMENT" shall mean this Receivables Purchase Agreement and
Assignment and all amendments hereof and supplements hereto.
"CLOSING DATE" means March 20, 1997.
"INDENTURE TRUSTEE" means Norwest Bank Minnesota, National
Association, a national banking association, as trustee and indenture collateral
agent under the Indenture, dated as of March 1, 1997, between the Trust, the
Indenture Trustee and the Indenture Collateral Agent.
"INITIAL OTHER CONVEYED PROPERTY" means all monies at any time paid or
payable on the Initial Receivables or in respect thereof after the Initial
Cutoff Date (including amounts due on or before the Initial Cutoff Date but
received by OFL after the Initial Cutoff Date), an assignment of security
interests in the Financed Vehicles, the Collection Account (including all
Eligible Investments therein and all proceeds therefrom), the Subcollection
Account, the Insurance Policies and any proceeds from any Insurance Policies
relating to the Initial Receivables, the Obligors or the related Financed
Vehicles, including rebates of premiums, rights under any Collateral Insurance
and any Force-Placed Insurance relating to the Initial Receivables, an
assignment of the rights of OFL against Dealers with respect to the Initial
Receivables under the Dealer Agreements and the Dealer Assignments, all items
contained in the Receivable Files relating to the Initial Receivables, any and
all other documents or electronic records that OFL keeps on file in accordance
with its customary procedures relating to the Initial Receivables, the Obligors
or the related Financed Vehicles, property (including the right to receive
future Liquidation Proceeds) that secures an Initial Receivable and that has
been acquired by or on behalf of the Trust pursuant to liquidation of such
Initial Receivable, and all proceeds of the foregoing.
"INITIAL RECEIVABLES" means the Receivables listed on the Schedule of
Initial Receivables attached hereto as Schedule A.
"INITIAL SPREAD ACCOUNT DEPOSIT" means $7,750,000.
"INSURANCE AGREEMENT" means the Insurance and Indemnity Agreement,
dated as of March 20, 1997, among the Security Insurer, the Trust, Olympic First
GP Inc., Olympic Second GP Inc., ORFC and OFL.
"LIQUIDATED DAMAGES" means an amount equal to the sum of the ClassA-1
Prepayment Premium, the Class A-2 Prepayment Premium, the Class A-3 Prepayment
Premium, the Class A-4 Prepayment Premium, the Class A-5 Prepayment Premium and
the Certificate Prepayment Premium.
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"OTHER CONVEYED PROPERTY" means the Initial Other Conveyed Property
conveyed by OFL to ORFC pursuant to this Agreement together with any and all
Subsequent Other Conveyed Property conveyed by OFL to ORFC pursuant to each
Subsequent Purchase Agreement.
"OWNER TRUSTEE" means Mellon Bank (DE), National Association, a
Delaware corporation, not in its individual capacity but solely as trustee of
the Trust and any successor trustee appointed and acting pursuant to the Trust
Agreement.
"RELATED DOCUMENTS" means the Notes, the Certificates, the Custodian
Agreement, the Trust Agreement, the Administration Agreement, the Indenture,
each Subsequent Purchase Agreement, the Sale and Servicing Agreement, each
Subsequent Transfer Agreement, the Policies, the Spread Account Agreement, the
Insurance Agreement, the Lockbox Agreement and the Underwriting Agreement among
OFL, ORFC and the underwriters of the Notes and the Certificates. The Related
Documents to be executed by any party are referred to herein as "such party's
Related Documents," "its Related Documents" or by a similar expression.
"REPURCHASE EVENT" means the occurrence of a breach of any of OFL's
representations and warranties hereunder or under any Subsequent Purchase
Agreement or any other event which requires the repurchase of a Receivable by
OFL under the Sale and Servicing Agreement.
"SALE AND SERVICING AGREEMENT" means the Sale and Servicing Agreement,
dated as of March 1, 1997, executed and delivered by Olympic Receivables Finance
Corp., as Seller, Olympic Financial Ltd., in its individual capacity and as
Servicer, Olympic Automobile Receivables Trust, 1997-A, as Issuer, and Norwest
Bank Minnesota, National Association, as Backup Servicer.
"SCHEDULE OF INITIAL RECEIVABLES" means the schedule of all retail
installment sales contracts and promissory notes sold and transferred pursuant
to this Agreement which is attached hereto as Schedule A.
"SCHEDULE OF RECEIVABLES" means the Schedule of Initial Receivables
attached hereto as Schedule A as supplemented by each Schedule of Subsequent
Receivables attached to each Subsequent Purchase Agreement as Schedule A.
"SCHEDULE OF REPRESENTATIONS" means the Schedule of Representations
and Warranties attached hereto as Schedule B.
"SCHEDULE OF SUBSEQUENT RECEIVABLES" means the schedule of all retail
installment sales contracts and promissory notes sold and transferred pursuant
to a Subsequent Purchase Agreement which is attached to such Subsequent Purchase
Agreement as Schedule A, which Schedule of Subsequent Receivables shall
supplement the Schedule of Initial Receivables.
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"SPREAD ACCOUNT" means the Spread Account established and maintained
pursuant to the Spread Account Agreement. The Spread Account shall in no event
be deemed to be part of the Trust Property.
"SPREAD ACCOUNT AGREEMENT" means the Spread Account Agreement, dated
as of March 25, 1993, as amended and restated as of March 1, 1997, among OFL,
ORFC, the Security Insurer, the Collateral Agent and the trustees specified
therein, as the same may be amended, supplemented or otherwise modified in
accordance with the terms thereof.
"SUBSEQUENT OTHER CONVEYED PROPERTY" means the Subsequent Other
Conveyed Property conveyed by OFL to ORFC pursuant to each Subsequent Purchase
Agreement.
"SUBSEQUENT RECEIVABLES" means the Receivables specified in the
Schedule of Subsequent Receivables attached as Schedule A to each Subsequent
Purchase Agreement.
"TRUST" means the trust created by the Trust Agreement, the estate of
which consists of the Trust Property.
"TRUST PROPERTY" means the property and proceeds of every description
conveyed pursuant to Section 2.5 of the Trust Agreement, Sections 2.1 and 2.4 of
the Sale and Servicing Agreement and Section 2.1 hereof and pursuant to any
Subsequent Purchase Agreement and Subsequent Transfer Agreement, together with
the Certificate Policy and the Trust Accounts (including all Eligible
Investments therein and all proceeds therefrom). Although ORFC has pledged the
Spread Account to the Collateral Agent pursuant to the Spread Account Agreement,
the Spread Account shall not under any circumstances be deemed to be a part of
or otherwise includable in the Trust or the Trust Property.
SECTION 1.3. USAGE OF TERMS. With respect to all terms used in this
Agreement, the singular includes the plural and the plural the singular; words
importing any gender include the other gender; references to "writing" include
printing, typing, lithography, and other means of reproducing words in a visible
form; references to agreements and other contractual instruments include all
subsequent amendments thereto or changes therein entered into in accordance with
their respective terms and not prohibited by this Agreement or the Sale and
Servicing Agreement; references to Persons include their permitted successors
and assigns; and the terms "include" or "including" mean "include without
limitation" or "including without limitation."
SECTION 1.4. CERTAIN REFERENCES. All references to the Principal
Balance of a Receivable as of an Accounting Date shall refer to the close of
business on such day, or as of the first day of a Monthly Period shall refer to
the opening of
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business on such day. All references to the last day of a Monthly Period shall
refer to the close of business on such day.
SECTION 1.5. NO RECOURSE. Without limiting the obligations of OFL
hereunder, no recourse may be taken, directly or indirectly, under this
Agreement or any certificate or other writing delivered in connection herewith
or therewith, against any stockholder, officer or director, as such, of OFL, or
of any predecessor or successor of OFL.
SECTION 1.6. ACTION BY OR CONSENT OF NOTEHOLDERS OR
CERTIFICATEHOLDERS. Whenever any provision of this Agreement refers to action
to be taken, or consented to, by Noteholders or Certificateholders, such
provision shall be deemed to refer to Noteholders or Certificateholders, as the
case may be, of record as of the Record Date immediately preceding the date on
which such action is to be taken, or consent given, by Noteholders or
Certificateholders, as the case may be. Solely for the purposes of any action
to be taken, or consented to, by Noteholders or Certificateholders, any Note or
Certificate registered in the name of the Seller, OFL or any Affiliate thereof
shall be deemed not to be outstanding, and the related Outstanding Amount, or
Certificate Balance, as applicable, evidenced thereby shall not be taken into
account in determining whether the requisite Outstanding Amount, or Certificate
Balance necessary to effect any such action or consent has been obtained;
PROVIDED, HOWEVER, that, solely for the purpose of determining whether the
Indenture Trustee or Owner Trustee is entitled to rely upon any such action or
consent, only Notes or Certificates which the Indenture Trustee or Owner Trustee
knows to be so owned shall be so disregarded.
SECTION 1.7. MATERIAL ADVERSE EFFECT. Whenever a determination is to
be made under this Agreement as to whether a given event, action, course of
conduct or set of facts or circumstances could or would have a material adverse
effect on the Trust or the Noteholders or Certificateholders (or any similar or
analogous determination), such determination shall be made without taking into
account the funds available from claims under the Policies.
ARTICLE II
CONVEYANCE OF THE INITIAL RECEIVABLES
AND THE INITIAL OTHER CONVEYED PROPERTY
SECTION 2.1. CONVEYANCE OF THE INITIAL RECEIVABLES AND THE INITIAL
OTHER CONVEYED PROPERTY. Subject to the terms and conditions of this Agreement,
OFL hereby sells, transfers, assigns, and otherwise conveys to ORFC without
recourse (but without limitation of its obligations in this Agreement), and ORFC
hereby purchases, all right, title and interest of OFL in and to the Initial
Receivables and the Initial Other Conveyed Property. OFL and ORFC acknowledge
that certain of the Initial Receivables and Initial Other Conveyed Property have
previously been
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sold, transferred, assigned and conveyed to ORFC pursuant to the Telluride
Purchase Agreement, and OFL hereby confirms such prior sale, transfer,
assignment and conveyance. It is the intention of OFL and ORFC that the
transfer and assignment contemplated by this Agreement shall constitute a sale
of the Initial Receivables and the Initial Other Conveyed Property from OFL to
ORFC, conveying good title thereto free and clear of any Liens, and the Initial
Receivables and the Initial Other Conveyed Property shall not be part of OFL's
estate in the event of the filing of a bankruptcy petition by or against OFL
under any bankruptcy or similar law.
SECTION 2.2. PURCHASE PRICE OF INITIAL RECEIVABLES. Simultaneously
with the conveyance of the Initial Receivables and the Initial Other Conveyed
Property to ORFC, ORFC has paid or caused to be paid to or upon the order of OFL
approximately $577,712,866.21 by wire transfer of immediately available funds
(representing the proceeds to ORFC from the sale of the Initial Receivables
after (i) deducting expenses of $725,000 incurred by ORFC in connection with
such sale, (ii) depositing the Pre-Funded Amount in the Pre-Funding Account and
(iii) depositing the Reserve Amount in the Reserve Account).
SECTION 2.3. CONVEYANCE OF SUBSEQUENT RECEIVABLES AND SUBSEQUENT
OTHER CONVEYED PROPERTY.
(a) Subject to the conditions set forth in paragraph (b) below and
the terms and conditions in the related Subsequent Purchase Agreement, in
consideration of OFL's delivery on the related Subsequent Transfer Date to or
upon the order of ORFC of an amount equal to the purchase price of the
Subsequent Receivables (as set forth in the related Subsequent Purchase
Agreement), OFL hereby agrees to sell, transfer, assign, and otherwise convey to
ORFC without recourse (but without limitation of its obligations in this
Agreement and the related Subsequent Purchase Agreement), and ORFC hereby agrees
to purchase all right, title and interest of OFL in and to the Subsequent
Receivables and the Subsequent Other Conveyed Property described in the related
Subsequent Purchase Agreement.
(b) OFL shall transfer to ORFC, and ORFC shall acquire, the
Subsequent Receivables and the Subsequent Other Conveyed Property to be
transferred on any Subsequent Transfer Date only upon the satisfaction of each
of the following conditions on or prior to such Subsequent Transfer Date:
(i) ORFC shall have provided the Owner Trustee, the Indenture
Trustee, the Security Insurer and the Rating Agencies with a timely
Addition Notice and shall have provided any information reasonably
requested by any of the foregoing with respect to the Subsequent
Receivables;
(ii) the Funding Period shall not have terminated;
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(iii) the Security Insurer (so long as an Insurer Default shall
not have occurred and be continuing) shall in its sole and absolute
discretion have given its prior written approval of the transfer of the
Subsequent Receivables and the Subsequent Other Conveyed Property by OFL to
ORFC and, in turn, by ORFC to the Trust;
(iv) ORFC shall have delivered to OFL a duly executed Subsequent
Receivables Purchase Agreement and Assignment, in substantially the form of
Exhibit A hereto (the "Subsequent Purchase Agreement"), which shall include
a Schedule of Subsequent Receivables;
(v) as of each Subsequent Transfer Date, neither OFL nor ORFC
was insolvent nor will either of them have been made insolvent by such
transfer nor is either of them aware of any pending insolvency;
(vi) each Rating Agency shall have notified ORFC, the Owner
Trustee, the Indenture Trustee and the Security Insurer in writing that
following such transfer the Notes and the Certificates will be rated in the
highest rating category by such Rating Agency;
(vii) such addition will not result in a material adverse tax
consequence to the Trust, the Noteholders or the Certificateholders as
evidenced by an Opinion of Counsel to be delivered by OFL;
(viii) ORFC shall have delivered to the Rating Agencies and to the
Security Insurer one or more Opinions of Counsel with respect to the
transfer of the Subsequent Receivables substantially in the form of the
Opinions of Counsel delivered to such persons on the Closing Date;
(ix) (A) the Receivables in the Trust, including the Subsequent
Receivables to be conveyed by OFL to ORFC and, in turn, by ORFC to the
Trust on the Subsequent Transfer Date, shall meet the following criteria
(based on the characteristics of the Initial Receivables on the Initial
Cutoff Date and the Subsequent Receivables on each related Subsequent
Cutoff Date): (1) the weighted average APR of such Receivables will not be
less than 14.50%, (2) the weighted average remaining term of such
Receivables will not be more than 67 nor less than 63 months, (3) not more
than 85% of the Aggregate Principal Balances of such Receivables will
represent used Financed Vehicles, (4) not more than 50% of the Aggregate
Principal Balance of such Receivables will represent Receivables originated
under OFL's "Classic" program, (5) not more than 2% of the Principal
Balance of such Receivables will have an Annual Percentage Rate in
excess of 21%, (6) not more than 0.25% of the Aggregate Principal Balance
of such Receivables will represent loans on Financed Vehicles in excess of
$50,000.00, (7) not more than 3% of the Aggregate Principal Balance of such
Receivables will represent loans with original terms greater than 72 months
and (8) not more than 5.0%
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of the Aggregate Principal Balance of such Receivables will represent loans
secured by Financed Vehicles that previously secured a loan originated by
OFL with an obligor other than the current Obligor, and (B)the Trust, the
Owner Trustee, the Indenture Trustee and the Security Insurer shall have
received written confirmation from a firm of certified independent public
accountants as to the satisfaction of such criteria;
(x) OFL shall have taken any action necessary, or if requested
by the Security Insurer, advisable to maintain the first perfected
ownership interest of the Trust in the Trust Property and the first
perfected security interest of ORFC in the Subsequent Receivables and the
Subsequent Other Conveyed Property, the Trust in the Trust Property and the
first perfected security interest of the Indenture Collateral Agent in the
Indenture Collateral;
(xi) OFL is conveying Subsequent Receivables to the Seller in
substantially the order they were originated by OFL; and
(xii) no selection procedures believed by OFL to be adverse to the
interests of the Certificateholders or the Noteholders shall have been
utilized in selecting the Subsequent Receivables.
It is the intention of OFL and ORFC that the transfer and assignment
contemplated by this Agreement and the related Subsequent Purchase Agreement
shall constitute a sale of the Subsequent Receivables and the Subsequent Other
Conveyed Property from OFL to ORFC, conveying good title thereto free and clear
of any Liens, and the Subsequent Receivables and the Subsequent Other Conveyed
Property shall not be part of OFL's estate in the event of the filing of a
bankruptcy petition by or against OFL under any bankruptcy or similar law.
(c) OFL covenants to transfer to ORFC pursuant to paragraph (a)
above Subsequent Receivables with an aggregate Principal Balance equal to
$195,396,126.43; PROVIDED, HOWEVER, that the sole remedy of ORFC with respect
to a failure of such covenant shall be to enforce the provisions of Section
6.2 of this Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. REPRESENTATIONS AND WARRANTIES OF OFL. OFL makes the
following representations and warranties, on which ORFC relies in purchasing the
Initial Receivables and the Initial Other Conveyed Property and in transferring
the Initial Receivables and the Initial Other Conveyed Property to the Trust
under the Sale and Servicing Agreement and on which the Security Insurer will
rely in issuing the Policies. Such representations are made as of the execution
and delivery
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of this Agreement, but shall survive the sale, transfer and assignment of the
Initial Receivables and the Initial Other Conveyed Property hereunder and the
sale, transfer and assignment thereof by ORFC to the Trust under the Sale and
Servicing Agreement. OFL and ORFC agree that ORFC will assign to the Trust all
of ORFC's rights under this Agreement and that the Trust will thereafter be
entitled to enforce this Agreement against OFL in the Trust's own name.
(a) SCHEDULE OF REPRESENTATIONS. The representations and warranties
set forth on the Schedule of Representations are true and correct.
(b) ORGANIZATION AND GOOD STANDING. OFL has been duly organized and
is validly existing as a corporation in good standing under the laws of the
State of Minnesota, with power and authority to own its properties and to
conduct its business as such properties are currently owned and such
business is currently conducted, and had at all relevant times, and now
has, power, authority and legal right to acquire, own and sell the Initial
Receivables and the Initial Other Conveyed Property transferred to ORFC.
(c) DUE QUALIFICATION. OFL is duly qualified to do business as a
foreign corporation in good standing, and has obtained all necessary
licenses and approvals, in all jurisdictions in which the ownership or
lease of its property or the conduct of its business requires such
qualification.
(d) POWER AND AUTHORITY. OFL has the power and authority to execute
and deliver this Agreement and its Related Documents and to carry out its
terms and their terms, respectively; OFL has full power and authority to
sell and assign the Initial Receivables and the Initial Other Conveyed
Property to be sold and assigned to and deposited with ORFC hereunder and
has duly authorized such sale and assignment to ORFC by all necessary
corporate action; and the execution, delivery and performance of this
Agreement and OFL's Related Documents have been duly authorized by OFL by
all necessary corporate action.
(e) VALID SALE; BINDING OBLIGATIONS. This Agreement and OFL's
Related Documents have been duly executed and delivered, shall effect a
valid sale, transfer and assignment of the Initial Receivables and the
Initial Other Conveyed Property, enforceable against OFL and creditors of
and purchasers from OFL; and this Agreement and OFL's Related Documents
constitute legal, valid and binding obligations of OFL enforceable in
accordance with their respective terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization or other similar laws
affecting the enforcement of creditors' rights generally and by equitable
limitations on the availability of specific remedies, regardless of whether
such enforceability is considered in a proceeding in equity or at law.
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(f) NO VIOLATION. The consummation of the transactions contemplated
by this Agreement and the Related Documents and the fulfillment of the
terms of this Agreement and the Related Documents shall not conflict with,
result in any breach of any of the terms and provisions of or constitute
(with or without notice, lapse of time or both) a default under, the
articles of incorporation or bylaws of OFL, or any indenture, agreement,
mortgage, deed of trust or other instrument to which OFL is a party or by
which it is bound, or result in the creation or imposition of any Lien upon
any of its properties pursuant to the terms of any such indenture,
agreement, mortgage, deed of trust or other instrument, other than this
Agreement, the Spread Account Agreement and the Sale and Servicing
Agreement, or violate any law, order, rule or regulation applicable to OFL
of any court or of any federal or state regulatory body, administrative
agency or other governmental instrumentality having jurisdiction over OFL
or any of its properties.
(g) NO PROCEEDINGS. There are no proceedings or investigations
pending or, to OFL's knowledge, threatened against OFL, before any court,
regulatory body, administrative agency or other tribunal or governmental
instrumentality having jurisdiction over OFL or its properties
(i) asserting the invalidity of this Agreement or any of the Related
Documents, (ii) seeking to prevent the issuance of the Notes or the
Certificates or the consummation of any of the transactions contemplated by
this Agreement or any of the Related Documents, (iii) seeking any
determination or ruling that might materially and adversely affect the
performance by OFL of its obligations under, or the validity or
enforceability of, this Agreement or any of the Related Documents or (iv)
seeking to affect adversely the federal income tax or other federal,
state or local tax attributes of, or seeking to impose any excise,
franchise, transfer or similar tax upon, the transfer and acquisition of
the Initial Receivables and the Initial Other Conveyed Property hereunder
or under the Sale and Servicing Agreement.
(h) CHIEF EXECUTIVE OFFICE. The chief executive office of OFL is
located at 0000 Xxxxxxxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxxx, XX 00000-
2435.
SECTION 3.2. REPRESENTATIONS AND WARRANTIES OF ORFC. ORFC makes the
following representations and warranties, on which OFL relies in selling,
assigning, transferring and conveying the Initial Receivables and the Initial
Other Conveyed Property to ORFC hereunder. Such representations are made as of
the execution and delivery of this Agreement, but shall survive the sale,
transfer and assignment of the Initial Receivables and the Initial Other
Conveyed Property hereunder and the sale, transfer and assignment thereof by
ORFC to the Trust under the Sale and Servicing Agreement.
(a) ORGANIZATION AND GOOD STANDING. ORFC has been duly organized and
is validly existing and in good standing as a corporation under
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the laws of the State of Delaware, with the power and authority to own its
properties and to conduct its business as such properties are currently
owned and such business is currently conducted, and had at all relevant
times, and has, full power, authority and legal right to acquire and own
the Initial Receivables and the Initial Other Conveyed Property and to
transfer the Initial Receivables and the Initial Other Conveyed Property to
the Trust pursuant to the Sale and Servicing Agreement.
(b) DUE QUALIFICATION. ORFC is duly qualified to do business as a
foreign corporation in good standing, and has obtained all necessary
licenses and approvals in all jurisdictions where the failure to do so
would materially and adversely affect (i) ORFC's ability to acquire the
Initial Receivables or the Initial Other Conveyed Property, (ii) the
validity or enforceability of the Initial Receivables and the Initial Other
Conveyed Property or (iii) ORFC's ability to perform its obligations
hereunder and under the Related Documents.
(c) POWER AND AUTHORITY. ORFC has the power, authority and legal
right to execute and deliver this Agreement and its Related Documents and
to carry out the terms hereof and thereof and to acquire the Initial
Receivables and the Initial Other Conveyed Property hereunder; and the
execution, delivery and performance of this Agreement and its Related
Documents and all of the documents required pursuant hereto or thereto have
been duly authorized by ORFC by all necessary action.
(d) NO CONSENT REQUIRED. ORFC is not required to obtain the consent
of any other Person, or any consent, license, approval or authorization or
registration or declaration with, any governmental authority, bureau or
agency in connection with the execution, delivery or performance of this
Agreement and the Related Documents, except for such as have been obtained,
effected or made.
(e) BINDING OBLIGATION. This Agreement and each of its Related
Documents constitutes a legal, valid and binding obligation of ORFC,
enforceable against ORFC in accordance with its terms, subject, as to
enforceability, to applicable bankruptcy, insolvency, reorganization,
conservatorship, receivership, liquidation and other similar laws and to
general equitable principles.
(f) NO VIOLATION. The execution, delivery and performance by ORFC of
this Agreement, the consummation of the transactions contemplated by this
Agreement and the Related Documents and the fulfillment of the terms of
this Agreement and the Related Documents do not and will not conflict with,
result in any breach of any of the terms and provisions of or constitute
(with or without notice
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or lapse of time) a default under the certificate of incorporation or
bylaws of ORFC, or conflict with or breach any of the terms or provisions
of, or constitute (with or without notice or lapse of time) a default
under, any indenture, agreement, mortgage, deed of trust or other
instrument to which ORFC is a party or by which ORFC is bound or to which
any of its properties are subject, or result in the creation or imposition
of any Lien upon any of its properties pursuant to the terms of any such
indenture, agreement, mortgage, deed of trust or other instrument (other
than the Sale and Servicing Agreement and the Indenture), or violate any
law, order, rule or regulation, applicable to ORFC or its properties, of
any federal or state regulatory body or any court, administrative agency,
or other governmental instrumentality having jurisdiction over ORFC or any
of its properties.
(g) NO PROCEEDINGS. There are no proceedings or investigations
pending, or, to the knowledge of ORFC, threatened against ORFC, before any
court, regulatory body, administrative agency, or other tribunal or
governmental instrumentality having jurisdiction over ORFC or its
properties: (i) asserting the invalidity of this Agreement or any of the
Related Documents, (ii) seeking to prevent the consummation of any of the
transactions contemplated by this Agreement or any of the Related
Documents, (iii) seeking any determination or ruling that might materially
and adversely affect the performance by ORFC of its obligations under, or
the validity or enforceability of, this Agreement or any of the Related
Documents or (iv) that may adversely affect the federal or state income tax
attributes of, or seeking to impose any excise, franchise, transfer or
similar tax upon, the transfer and acquisition of the Initial Receivables
and the Initial Other Conveyed Property hereunder or the transfer of the
Initial Receivables and the Initial Other Conveyed Property to the Trust
pursuant to the Sale and Servicing Agreement.
In the event of any breach of a representation and warranty made by ORFC
hereunder, OFL covenants and agrees that it will not take any action to pursue
any remedy that it may have hereunder, in law, in equity or otherwise, until a
year and a day have passed since the date on which all pass-through certificates
or other similar securities issued by the Trust, or a trust or similar vehicle
formed by ORFC, have been paid in full. OFL and ORFC agree that damages will
not be an adequate remedy for such breach and that this covenant may be
specifically enforced by ORFC or by the Owner Trustee on behalf of the Trust.
ARTICLE IV
COVENANTS OF OFL
SECTION 4.1. PROTECTION OF TITLE OF ORFC AND THE TRUST.
(a) At or prior to the Closing Date or each Subsequent Transfer Date,
as the case may be, OFL shall have filed or caused to be filed a UCC-1 financing
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statement, executed by OFL as seller or debtor, naming ORFC as purchaser or
secured party and describing the Initial Receivables and the Initial Other
Conveyed Property, with respect to this Agreement, and the Subsequent
Receivables and the Subsequent Other Conveyed Property, with respect to each
Subsequent Purchase Agreement, being sold by it to ORFC as collateral, with the
office of the Secretary of State of the State of Minnesota and in such other
locations as ORFC shall have required. From time to time thereafter, OFL shall
execute and file such financing statements and cause to be executed and filed
such continuation statements, all in such manner and in such places as may be
required by law fully to preserve, maintain and protect the interest of ORFC
under this Agreement and each Subsequent Purchase Agreement and of the Trust
under the Sale and Servicing Agreement and each Subsequent Transfer Agreement in
the Initial Receivables and the Initial Other Conveyed Property and the
Subsequent Receivables and the Subsequent Other Conveyed Property, as the case
may be, and in the proceeds thereof. OFL shall deliver (or cause to be
delivered) to ORFC, the Owner Trustee, the Indenture Trustee and the Security
Insurer file-stamped copies of, or filing receipts for, any document filed as
provided above, as soon as available following such filing. In the event that
OFL fails to perform its obligations under this subsection, ORFC or the Owner
Trustee may do so at the expense of OFL.
(b) OFL shall not change its name, identity, or corporate structure
in any manner that would, could or might make any financing statement or
continuation statement filed by OFL (or by ORFC or the Owner Trustee on behalf
of OFL) in accordance with paragraph (a) above seriously misleading within the
meaning of Section 9-402(7) of the UCC, unless it shall have given ORFC, the
Owner Trustee and the Security Insurer at least 60 days' prior written notice
thereof, and shall promptly file appropriate amendments to all previously filed
financing statements and continuation statements.
(c) OFL shall give ORFC, the Security Insurer (so long as an Insurer
Default shall not have occurred and be continuing), the Indenture Trustee and
the Owner Trustee at least 60 days' prior written notice of any relocation of
its principal executive office if, as a result of such relocation, the
applicable provisions of the UCC would require the filing of any amendment of
any previously filed financing or continuation statement or of any new financing
statement. OFL shall at all times maintain each office from which it services
Receivables and its principal executive office within the United States of
America.
(d) OFL shall maintain its computer systems so that, from and after
the time of sale under this Agreement of the Initial Receivables to ORFC, and
from and after the time of sale under each Subsequent Purchase Agreement of the
Subsequent Receivables to ORFC, and the conveyance of the Initial Receivables
and the Subsequent Receivables by ORFC to the Trust, OFL's master computer
records (including archives) that shall refer to an Initial Receivable or
Subsequent Receivable indicate clearly that such Initial Receivable or
Subsequent Receivable has been sold to ORFC and has been conveyed by ORFC to the
Trust. Indication of the
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Trust's ownership of an Initial Receivable or Subsequent Receivable shall be
deleted from or modified on OFL's computer systems when, and only when, the
Initial Receivable or Subsequent Receivable shall become a Purchased Receivable
or shall have been paid in full.
(e) If at any time OFL shall propose to sell, grant a security
interest in, or otherwise transfer any interest in motor vehicle receivables to
any prospective purchaser, lender or other transferee, OFL shall give to such
prospective purchaser, lender, or other transferee computer tapes, records, or
print-outs (including any restored from archives) that, if they shall refer in
any manner whatsoever to any Initial Receivable or Subsequent Receivable, shall
indicate clearly that such Initial Receivable or Subsequent Receivable has been
sold to ORFC and is owned by the Trust.
SECTION 4.2. OTHER LIENS OR INTERESTS. Except for the conveyances
hereunder and under any Subsequent Purchase Agreement, OFL will not sell,
pledge, assign or transfer to any other Person, or grant, create, incur, assume
or suffer to exist any Lien on the Initial Receivables or the Initial Other
Conveyed Property or on the Subsequent Receivables or the Subsequent Other
Conveyed Property, or any interest therein, and OFL shall defend the right,
title, and interest of ORFC and the Trust in and to the Initial Receivables and
the Initial Other Conveyed Property and the Subsequent Receivables and the
Subsequent Other Conveyed Property against all claims of third parties claiming
through or under OFL.
SECTION 4.3. COSTS AND EXPENSES. OFL shall pay all reasonable costs
and disbursements in connection with the performance of its obligations
hereunder and under each Subsequent Purchase Agreement and its Related
Documents.
SECTION 4.4. INDEMNIFICATION.
(a) OFL shall defend, indemnify and hold harmless ORFC, the Trust,
the Owner Trustee, the Security Insurer, the Indenture Trustee, the Backup
Servicer, the Noteholders and the Certificateholders from and against any and
all costs, expenses, losses, damages, claims, and liabilities, arising out of or
resulting from any breach of any of OFL's representations and warranties
contained herein or in any Subsequent Purchase Agreement.
(b) OFL shall defend, indemnify and hold harmless ORFC, the Trust,
the Owner Trustee, the Indenture Trustee, the Backup Servicer, the Noteholders
and the Certificateholders from and against any and all costs, expenses, losses,
damages, claims, and liabilities, arising out of or resulting from the use,
ownership or operation by OFL or any affiliate thereof of a Financed Vehicle.
(c) OFL shall defend and indemnify ORFC, the Trust, the Owner
Trustee, the Security Insurer, the Indenture Trustee, the Backup Servicer, the
Noteholders and the Certificateholders against any and all costs, expenses,
losses,
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damages, claims and liabilities arising out of or resulting from any action
taken, or failed to be taken, by it in respect of any portion of the Trust
Property other than in accordance with this Agreement, each Subsequent Purchase
Agreement or the Sale and Servicing Agreement and each Subsequent Transfer
Agreement.
(d) OFL agrees to pay, and shall defend, indemnify and hold harmless
ORFC, the Trust, the Owner Trustee, the Indenture Trustee, the Backup Servicer,
the Noteholders and the Certificateholders from and against any taxes that may
at any time be asserted against ORFC, the Owner Trustee, the Indenture Trustee,
the Backup Servicer, the Noteholders and the Certificateholders with respect to
the transactions contemplated in this Agreement or in any Subsequent Purchase
Agreement, including, without limitation, any sales, gross receipts, general
corporation, tangible or intangible personal property, privilege, or license
taxes (but not including any taxes asserted with respect to, and as of the date
of, the sale, transfer and assignment of the Initial Receivables and the Initial
Other Conveyed Property or the Subsequent Receivables or Subsequent Other
Conveyed Property to ORFC and of the Trust Property to the Trust or the issuance
and original sale of the Notes or the Certificates, or asserted with respect to
ownership of the Initial Receivables and Initial Other Conveyed Property or the
Subsequent Receivables or Subsequent Other Conveyed Property or the Trust
Property which shall be indemnified by OFL pursuant to clause (e) below, or
federal, state or other income taxes, arising out of distributions on the Notes
or the Certificates or transfer taxes arising in connection with the transfer of
the Notes or the Certificates) and costs and expenses in defending against the
same, arising by reason of the acts to be performed by OFL under this Agreement
or under any Subsequent Purchase Agreement or imposed against such Persons.
(e) OFL agrees to pay, and to indemnify, defend and hold harmless
ORFC, the Trust, the Owner Trustee, the Indenture Trustee, the Backup Servicer,
the Noteholders and the Certificateholders from, any taxes which may at any time
be asserted against such Persons with respect to, and as of the date of, the
conveyance or ownership of the Initial Receivables or the Initial Other Conveyed
Property hereunder or the Subsequent Receivables or Subsequent Other Conveyed
Property under each Subsequent Purchase Agreement and the conveyance or
ownership of the Trust Property under the Sale and Servicing Agreement and the
Subsequent Transfer Agreements or the issuance and original sale of the Notes
and the Certificates, including, without limitation, any sales, gross receipts,
personal property, tangible or intangible personal property, privilege or
license taxes (but not including any federal or other income taxes, including
franchise taxes, arising out of the transactions contemplated hereby or transfer
taxes arising in connection with the transfer of Notes or Certificates) and
costs and expenses in defending against the same, arising by reason of the acts
to be performed by OFL under this Agreement or under any Subsequent Purchase
Agreement or imposed against such Persons.
(f) OFL shall defend, indemnify, and hold harmless ORFC, the Owner
Trustee, the Security Insurer, the Indenture Trustee, the Backup Servicer, the
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Trust, the Noteholders and the Certificateholders from and against any and all
costs, expenses, losses, claims, damages, and liabilities to the extent that
such cost, expense, loss, claim, damage, or liability arose out of, or was
imposed upon ORFC, the Trust, the Indenture Trustee, the Noteholders and the
Certificateholders through the negligence, willful misfeasance, or bad faith of
OFL in the performance of its duties under this Agreement or under any
Subsequent Purchase Agreement or by reason of reckless disregard of OFL's
obligations and duties under this Agreement or under any Subsequent Purchase
Agreement.
(g) OFL shall indemnify, defend and hold harmless ORFC, the Owner
Trustee, the Security Insurer, the Indenture Trustee, the Backup Servicer, the
Trust, the Noteholders and the Certificateholders from and against any loss,
liability or expense incurred by reason of the violation by OFL of federal or
state securities laws in connection with the registration or the sale of the
Notes and the Certificates.
(h) OFL shall indemnify, defend and hold harmless ORFC, the Owner
Trustee, the Security Insurer, the Indenture Trustee, the Backup Servicer, the
Trust, the Noteholders and the Certificateholders from and against any loss,
liability or expense imposed upon, or incurred by, ORFC, the Owner Trustee, the
Indenture Trustee, the Trust, the Noteholders or the Certificateholders as a
result of the failure of any Initial Receivable or Subsequent Receivable, or the
sale of the related Financed Vehicle, to comply with all requirements of
applicable law.
(i) OFL shall defend, indemnify, and hold harmless ORFC from and
against all costs, expenses, losses, claims, damages, and liabilities arising
out of or incurred in connection with the acceptance or performance of OFL's
trusts and duties as Servicer under the Sale and Servicing Agreement, except to
the extent that such cost, expense, loss, claim, damage, or liability shall be
due to the willful misfeasance, bad faith, or negligence (except for errors in
judgment) of ORFC.
(j) OFL shall indemnify, defend and hold harmless ORFC, the Owner
Trustee, the Indenture Trustee, the Backup Servicer, the Trust, the Noteholders
and the Certificateholders from and against any loss, liability or expense
imposed upon, or incurred by, ORFC, the Owner Trustee and the Indenture Trustee,
the Trust, the Noteholders or the Certificateholders as a result of OFL's or
ORFC's use of the name "Olympic."
Indemnification under this Section 4.4 shall include reasonable fees
and expenses of counsel and expenses of litigation and shall survive termination
of the Trust. The indemnity obligations hereunder shall be in addition to any
obligation that OFL may otherwise have.
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ARTICLE V
REPURCHASES
SECTION 5.1. REPURCHASE OF RECEIVABLES UPON BREACH OF WARRANTY. Upon
the occurrence of a Repurchase Event OFL shall, unless such breach shall have
been cured in all material respects, repurchase such Receivable from the Trust
and, on or before the related Deposit Date, OFL shall pay the Purchase Amount to
the Trust pursuant to Section 4.5 of the Sale and Servicing Agreement. It is
understood and agreed that, except as set forth in Section 6.1, the obligation
of OFL to repurchase any Receivable as to which a breach has occurred and is
continuing shall, if such obligation is fulfilled, constitute the sole remedy
against OFL for such breach available to ORFC, the Security Insurer,
Certificateholders, Noteholders, or the Owner Trustee or the Indenture Trustee
on behalf of Certificateholders or Noteholders. The provisions of this Section
5.1 are intended to grant the Owner Trustee and the Indenture Trustee a direct
right against OFL to demand performance hereunder, and in connection therewith,
OFL waives any requirement of prior demand against ORFC with respect to such
repurchase obligation. Any such purchase shall take place in the manner
specified in Section 2.6 of the Sale and Servicing Agreement. Notwithstanding
any other provision of this Agreement, any Subsequent Purchase Agreement or the
Sale and Servicing Agreement or any Subsequent Transfer Agreement to the
contrary, the obligation of OFL under this Section shall not terminate upon a
termination of OFL as Servicer under the Sale and Servicing Agreement and shall
be performed in accordance with the terms hereof notwithstanding the failure of
the Servicer or ORFC to perform any of their respective obligations with respect
to such Receivable under the Sale and Servicing Agreement.
In addition to the foregoing and notwithstanding whether the related
Receivable shall have been purchased by OFL, OFL shall indemnify the Owner
Trustee, the Indenture Trustee, the Backup Servicer, the Security Insurer, the
Trust, the Noteholders and the Certificateholders against all costs, expenses,
losses, damages, claims and liabilities, including reasonable fees and expenses
of counsel, which may be asserted against or incurred by any of them as a result
of third party claims arising out of the events or facts giving rise to such
Repurchase Events.
SECTION 5.2. REASSIGNMENT OF PURCHASED RECEIVABLES. Upon deposit in
the Collection Account of the Purchase Amount of any Receivable repurchased by
OFL under Section 5.1, ORFC and the Owner Trustee shall take such steps as may
be reasonably requested by OFL in order to assign to OFL all of ORFC's and the
Trust's right, title and interest in and to such Receivable and all security and
documents and all Other Conveyed Property conveyed to ORFC and the Trust
directly relating thereto, without recourse, representation or warranty, except
as to the absence of liens, charges or encumbrances created by or arising as a
result of actions of ORFC or the Owner Trustee. Such assignment shall be a sale
and assignment outright, and not for security. If, following the reassignment
of a
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Purchased Receivable, in any enforcement suit or legal proceeding, it is held
that OFL may not enforce any such Receivable on the ground that it shall not be
a real party in interest or a holder entitled to enforce the Receivable, ORFC
and the Owner Trustee shall, at the expense of OFL, take such steps as OFL deems
reasonably necessary to enforce the Receivable, including bringing suit in
ORFC's or the Owner Trustee's name or the names of the Certificateholders.
SECTION 5.3. WAIVERS. No failure or delay on the part of ORFC, or
the Owner Trustee as assignee of ORFC, in exercising any power, right or remedy
under this Agreement or under any Subsequent Purchase Agreement shall operate as
a waiver thereof, nor shall any single or partial exercise of any such power,
right or remedy preclude any other or future exercise thereof or the exercise of
any other power, right or remedy.
ARTICLE VI
MISCELLANEOUS
SECTION 6.1. LIABILITY OF OFL. OFL shall be liable in accordance
herewith only to the extent of the obligations in this Agreement or in any
Subsequent Purchase Agreement specifically undertaken by OFL and the
representations and warranties of OFL.
SECTION 6.2. FAILURE OF OFL TO SELL SUBSEQUENT RECEIVABLES. In the
event that OFL shall fail to deliver and sell to ORFC any or all of the
Subsequent Receivables required under this Agreement, OFL shall be obligated to
pay to ORFC the Liquidated Damages on the Business Day immediately preceding the
Distribution Date on which the Funding Period ends (or, if the Funding Period
does not end on a Distribution Date, on the first Distribution Date following
the end of the Funding Period).
SECTION 6.3. MERGER OR CONSOLIDATION OF OFL OR ORFC. Any corporation
or other entity (i) into which OFL or ORFC may be merged or consolidated,
(ii) resulting from any merger or consolidation to which OFL or ORFC is a party
or (iii) succeeding to the business of OFL or ORFC, in the case of ORFC, which
corporation has a certificate of incorporation containing provisions relating to
limitations on business and other matters substantively identical to those
contained in ORFC's certificate of incorporation, provided that in any of the
foregoing cases such corporation shall execute an agreement of assumption to
perform every obligation of OFL or ORFC, as the case may be, under this
Agreement and each Subsequent Purchase Agreement and, whether or not such
assumption agreement is executed, shall be the successor to OFL or ORFC, as the
case may be, hereunder and under each such Subsequent Purchase Agreement
(without relieving OFL or ORFC of its responsibilities hereunder, if it survives
such merger or consolidation) without the execution or filing of any document or
any further act
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by any of the parties to this Agreement or each Subsequent Purchase
Agreement. Notwithstanding the foregoing, so long as an Insurer Default shall
not have occurred and be continuing, ORFC shall not merge or consolidate with
any other Person or permit any other Person to become the successor to ORFC's
business without the prior written consent of the Security Insurer. OFL or
ORFC shall promptly inform the other party, the Owner Trustee and the
Indenture Trustee and, so long as an Insurer Default shall not have occurred
and be continuing, the Security Insurer of such merger, consolidation or
purchase and assumption. Notwithstanding the foregoing, as a condition to the
consummation of the transactions referred to in clauses (i), (ii) and (iii)
above, (x) immediately after giving effect to such transaction, no
representation or warranty made pursuant to Sections 3.1 and 3.2 and this
Agreement, or similar representation or warranty made in any Subsequent
Purchase Agreement, shall have been breached (for purposes hereof, such
representations and warranties shall speak as of the date of the consummation
of such transaction) and no event that, after notice or lapse of time, or
both, would become an event of default under the Insurance Agreement, shall
have occurred and be continuing, (y) OFL or ORFC, as applicable, shall have
delivered written notice of such consolidation, merger or purchase and
assumption to the Rating Agencies prior to the consummation of such
transaction and shall have delivered to the Owner Trustee and the Indenture
Trustee an Officer's Certificate and an Opinion of Counsel each stating that
such consolidation, merger or succession and such agreement of assumption
comply with this Section 6.3 and that all conditions precedent, if any,
provided for in this Agreement, or in each Subsequent Purchase Agreement,
relating to such transaction have been complied with, and (z) OFL or ORFC, as
applicable, shall have delivered to the Owner Trustee and the Indenture
Trustee an Opinion of Counsel, stating that, in the opinion of such counsel,
either (A) all financing statements and continuation statements and
amendments thereto have been executed and filed that are necessary to
preserve and protect the interest of the Owner Trustee in the Trust Property
and reciting the details of the filings or (B) no such action shall be
necessary to preserve and protect such interest.
SECTION 6.4. LIMITATION ON LIABILITY OF OFL AND OTHERS. OFL and any
director, officer, employee or agent may rely in good faith on the advice of
counsel or on any document of any kind prima facie properly executed and
submitted by any Person respecting any matters arising under this Agreement.
OFL shall not be under any obligation to appear in, prosecute or defend any
legal action that is not incidental to its obligations under this Agreement, any
Subsequent Purchase Agreement or its Related Documents and that in its opinion
may involve it in any expense or liability.
SECTION 6.5. OFL MAY OWN NOTES OR CERTIFICATES. Subject to the
provisions of the Sale and Servicing Agreement, OFL and any Affiliate of OFL may
in its individual or any other capacity become the owner or pledgee of Notes or
Certificates with the same rights as it would have if it were not OFL or an
Affiliate thereof.
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SECTION 6.6. AMENDMENT.
(a) This Agreement and any Subsequent Purchase Agreement may be
amended by OFL and ORFC, so long as an Insurer Default shall not have occurred
and be continuing, with the prior written consent of the Security Insurer and
without the consent of the Owner Trustee, the Indenture Trustee or any of the
Certificateholders or Noteholders (A) to cure any ambiguity or (B) to correct
any provisions in this Agreement or any such Subsequent Purchase Agreement;
PROVIDED, HOWEVER, that such action shall not, as evidenced by an Opinion of
Counsel delivered to the Owner Trustee and the Indenture Trustee, adversely
affect in any material respect the interests of any Certificateholder or
Noteholder.
(b) This Agreement may also be amended from time to time by OFL and
ORFC, so long as an Insurer Default shall not have occurred and be continuing,
with the prior written consent of the Security Insurer, the Owner Trustee and
the Indenture Trustee and a Certificate Majority and a Note Majority, for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Agreement, or of modifying in any manner the rights of
the Certificateholders or the Noteholders; PROVIDED, HOWEVER, that no such
amendment shall (i) increase or reduce in any manner the amount of, or
accelerate or delay the timing of, collections of payments on Receivables,
distributions that shall be required to be made on any Certificate or Note or
the Pass-Through Rate or the Note Interest Rate or (ii) reduce the aforesaid
percentage required to consent to any such amendment or any waiver hereunder,
without the consent of the Holders of all Certificates or Notes then outstanding
or of the Holders of all Notes then outstanding.
(c) Prior to the execution of any such amendment or consent, OFL
shall have furnished written notification of the substance of such amendment or
consent to each Rating Agency.
(d) Promptly after the execution of any such amendment or consent,
the Owner Trustee or the Indenture Trustee, as applicable, shall furnish written
notification of the substance of such amendment or consent to each
Certificateholder and Noteholder.
(e) It shall not be necessary for the consent of Certificateholders
or Noteholders pursuant to this Section to approve the particular form of any
proposed amendment or consent, but it shall be sufficient if such consent shall
approve the substance thereof. The manner of obtaining such consents and of
evidencing the authorization of the execution thereof by Certificateholders or
Noteholders shall be subject to such reasonable requirements as the Owner
Trustee or the Indenture Trustee, as applicable, may prescribe, including the
establishment of record dates. The consent of any Holder of a Certificate or
Note given pursuant to this Section or pursuant to any other provision of this
Agreement shall be conclusive and binding on such Holder and on all future
Holders of such Certificate
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or Note and of any Certificate or Note issued upon the transfer thereof or in
exchange thereof or in lieu thereof whether or not notation of such consent is
made upon the Certificate or Note.
SECTION 6.7. NOTICES. All demands, notices and communications to OFL
or ORFC hereunder shall be in writing, personally delivered, or sent by
telecopier (subsequently confirmed in writing), reputable overnight courier or
mailed by certified mail, return receipt requested, and shall be deemed to have
been given upon receipt (a)in the case of OFL, to Olympic Financial Ltd., 0000
Xxxxxxxxxx Xxxxxx Xxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000-0000, Attention: XxxxX.
Xxxxxx, or such other address as shall be designated by OFL in a written notice
delivered to the other party or to the Owner Trustee or the Indenture Trustee,
as applicable, or (b) in case of ORFC, to Olympic Receivables Finance Corp.,
0000 Xxxxxxxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxxx, Xxxxxxxxx 00000-0000,
Attention:XxxxX. Xxxxxx.
SECTION 6.8. MERGER AND INTEGRATION. Except as specifically stated
otherwise herein, this Agreement and the Related Documents set forth the entire
understanding of the parties relating to the subject matter hereof, and all
prior understandings, written or oral, are superseded by this Agreement and the
Related Documents. This Agreement may not be modified, amended, waived or
supplemented except as provided herein.
SECTION 6.9. SEVERABILITY OF PROVISIONS. If any one or more of the
covenants, provisions or terms of this Agreement shall be for any reason
whatsoever held invalid, then such covenants, provisions or terms shall be
deemed severable from the remaining covenants, provisions or terms of this
Agreement and shall in no way affect the validity or enforceability of the other
provisions of this Agreement.
SECTION 6.10. INTENTION OF THE PARTIES. The execution and delivery
of this Agreement and of each Subsequent Purchase Agreement shall constitute an
acknowledgment by OFL and ORFC that they intend that each assignment and
transfer herein and therein contemplated constitute a sale and assignment
outright, and not for security, of the Initial Receivables and the Initial Other
Conveyed Property and the Subsequent Receivables and Subsequent Other Conveyed
Property, as the case may be, conveying good title thereto free and clear of any
Liens, from OFL to ORFC, and that the Initial Receivables and the Initial Other
Conveyed Property and the Subsequent Receivables and Subsequent Other Conveyed
Property shall not be a part of OFL's estate in the event of the bankruptcy,
reorganization, arrangement, insolvency or liquidation proceeding, or other
proceeding under any federal or state bankruptcy or similar law, or the
occurrence of another similar event, of, or with respect to, OFL. In the event
that such conveyance is determined to be made as security for a loan made by
ORFC, the Trust, the Certificateholders or the Noteholders to OFL, the parties
intend that OFL shall have granted to ORFC a security interest in all of OFL's
right, title and interest in and to the Initial
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Receivables and the Initial Other Conveyed Property and the Subsequent
Receivables and Subsequent Other Conveyed Property, as the case may be, conveyed
pursuant to Section 2.1 hereof or pursuant to any Subsequent Purchase Agreement,
and that this Agreement and each Subsequent Purchase Agreement shall constitute
a security agreement under applicable law.
SECTION 6.11. GOVERNING LAW. This Agreement shall be construed in
accordance with, the laws of the State of New York without regard to the
principles of conflicts of laws thereof, and the obligations, rights and
remedies of the parties under this Agreement shall be determined in accordance
with such laws.
SECTION 6.12. 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
counterparts shall be deemed to be an original, and all of which counterparts
shall constitute but one and the same instrument.
SECTION 6.13. CONVEYANCE OF THE INITIAL RECEIVABLES AND THE INITIAL
OTHER CONVEYED PROPERTY TO THE TRUST. OFL acknowledges that ORFC intends,
pursuant to the Sale and Servicing Agreement, to convey the Initial Receivables
and the Initial Other Conveyed Property, together with its rights under this
Agreement, to the Trust on the date hereof. OFL acknowledges and consents to
such conveyance and waives any further notice thereof and covenants and agrees
that the representations and warranties of OFL contained in this Agreement and
the rights of ORFC hereunder are intended to benefit the Security Insurer, the
Owner Trustee, the Indenture Trustee, the Trust, the Certificateholders and the
Noteholders. In furtherance of the foregoing, OFL covenants and agrees to
perform its duties and obligations hereunder, in accordance with the terms
hereof for the benefit of the Security Insurer, the Owner Trustee, the Indenture
Trustee, the Trust, the Certificateholders and the Noteholders and that,
notwithstanding anything to the contrary in this Agreement, OFL shall be
directly liable to the Owner Trustee and the Trust (notwithstanding any failure
by the Servicer, the Backup Servicer or ORFC to perform its duties and
obligations hereunder or under the Sale and Servicing Agreement) and that the
Owner Trustee may enforce the duties and obligations of OFL under this Agreement
against OFL for the benefit of the Security Insurer, the Trust, the
Certificateholders and the Noteholders.
SECTION 6.14. NONPETITION COVENANT. Neither ORFC nor OFL shall
petition or otherwise invoke the process of any court or government authority
for the purpose of commencing or sustaining a case against the Trust (or, in the
case of OFL, against ORFC) under any federal or state bankruptcy, insolvency or
similar law or appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the Trust (or ORFC) or any substantial
part of its property, or ordering the winding up or liquidation of the affairs
of the Trust (or ORFC).
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IN WITNESS WHEREOF, the parties have caused this Receivables
Purchase Agreement and Assignment to be duly executed by their respective
officers as of the day and year first above written.
OLYMPIC RECEIVABLES FINANCE CORP.,
as Purchaser
By /s/ Xxxx X. Xxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President and Chief
Financial Officer
OLYMPIC FINANCIAL LTD., as Seller
By /s/ Xxxx X. Xxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Executive Vice President and Chief
Financial Officer
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SCHEDULE A
SCHEDULE OF INITIAL RECEIVABLES
SCHEDULE B
REPRESENTATIONS AND WARRANTIES OF OFL
1. CHARACTERISTICS OF RECEIVABLES. Each Receivable (A) was
originated by a Dealer for the retail sale of a Financed Vehicle in the ordinary
course of such Dealer's business and such Dealer had all necessary licenses and
permits to originate Receivables in the state where such Dealer was located, was
fully and properly executed by the parties thereto, was purchased by OFL from
such Dealer under an existing Dealer Agreement with OFL and was validly assigned
by such Dealer to OFL, (B) contains customary and enforceable provisions such as
to render the rights and remedies of the holder thereof adequate for realization
against the collateral security, and (C) is fully amortizing and provides for
level monthly payments (provided that the payment in the first Monthly Period
and the final Monthly Period of the life of the Receivable may be minimally
different from the level payment) which, if made when due, shall fully amortize
the Amount Financed over the original term.
2. NO FRAUD OR MISREPRESENTATION. Each Receivable was originated by
a Dealer and was sold by the Dealer to OFL without any fraud or
misrepresentation on the part of such Dealer in either case.
3. COMPLIANCE WITH LAW. All requirements of applicable federal,
state and local laws, and regulations thereunder (including, without limitation,
usury laws, the Federal Truth-in-Lending Act, the Equal Credit Opportunity Act,
the Fair Credit Billing Act, the Fair Credit Reporting Act, the Fair Debt
Collection Practices Act, the Federal Trade Commission Act, the Xxxxxxxx-Xxxx
Warranty Act, the Federal Reserve Board's Regulations "B" and "Z", the Soldiers'
and Sailors' Civil Relief Act of 1940, the Minnesota Motor Vehicle Retail
Installment Sales Act, and state adaptations of the National Consumer Act and of
the Uniform Consumer Credit Code and other consumer credit laws and equal credit
opportunity and disclosure laws) in respect of all of the Receivables and each
and every sale of Financed Vehicles, have been complied with in all material
respects, and each Receivable and the sale of the Financed Vehicle evidenced by
each Receivable complied at the time it was originated or made and now complies
in all material respects with all applicable legal requirements.
4. ORIGINATION. Each Receivable was originated in the United
States.
5. BINDING OBLIGATION. Each Receivable represents the genuine,
legal, valid and binding payment obligation of the Obligor thereon, enforceable
by the holder thereof in accordance with its terms, except (A) as enforceability
may be limited by bankruptcy, insolvency, reorganization or similar laws
affecting the enforcement of creditors' rights generally and by equitable
limitations on the
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availability of specific remedies, regardless of whether such enforceability is
considered in a proceeding in equity or at law and (B) as such Receivable may be
modified by the application after the Initial Cutoff Date or any Subsequent
Cutoff Date, as the case may be, of the Soldiers' and Sailors' Civil Relief Act
of 1940, as amended; and all parties to each Receivable had full legal capacity
to execute and deliver such Receivable and all other documents related thereto
and to grant the security interest purported to be granted thereby.
6. NO GOVERNMENT OBLIGOR. No Obligor is the United States of
America or any State or any agency, department, subdivision or instrumentality
thereof.
7. OBLIGOR BANKRUPTCY. At the Initial Cutoff Date or each
Subsequent Cutoff Date, as applicable, no Obligor had been identified on the
records of OFL as being the subject of a current bankruptcy proceeding.
8. SCHEDULE OF RECEIVABLES. The information set forth in the
Schedule of Receivables has been produced from the Electronic Ledger and was
true and correct in all material respects as of the close of business on the
Initial Cutoff Date or each Subsequent Cutoff Date, as applicable.
9. MARKING RECORDS. By the Closing Date or by each Subsequent
Transfer Date, as applicable, OFL will have caused the portions of the
Electronic Ledger relating to the Receivables to be clearly and unambiguously
marked to show that the Receivables constitute part of the Trust Property and
are owned by the Trust in accordance with the terms of the Sale and Servicing
Agreement.
10. COMPUTER TAPE. The Computer Tape made available by OFL to ORFC,
the Owner Trustee and the Indenture Trustee on the Closing Date or on each
Subsequent Transfer Date was complete and accurate as of the Initial Cutoff Date
or Subsequent Cutoff Date, as applicable, and includes a description of the same
Receivables that are described in the Schedule of Receivables.
11. ADVERSE SELECTION. No selection procedures adverse to the
Noteholders or the Certificateholders were utilized in selecting the Receivables
from those receivables owned by OFL which met the selection criteria contained
in the Sale and Servicing Agreement.
12. CHATTEL PAPER. The Receivables constitute chattel paper within
the meaning of the UCC as in effect in the States of Minnesota and New York.
13. ONE ORIGINAL. There is only one original executed copy of each
Receivable.
14. RECEIVABLE FILES COMPLETE. There exists a Receivable File
pertaining to each Receivable, and such Receivable File contains (a) a fully
executed
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original of the Receivable, (b) a certificate of insurance, application form for
insurance signed by the Obligor or a signed representation letter from the
Obligor named in the Receivable pursuant to which the Obligor has agreed to
obtain physical damage insurance for the Financed Vehicle, or copies thereof,
(c) the original Lien Certificate or application therefor and (d) a credit
application signed by the Obligor, or a copy thereof. Each of such documents
which is required to be signed by the Obligor has been signed by the Obligor in
the appropriate spaces. All blanks on any form have been properly filled in and
each form has otherwise been correctly prepared. The complete file for each
Receivable currently is in the possession of the Custodian.
15. RECEIVABLES IN FORCE. No Receivable has been satisfied,
subordinated or rescinded, and the Financed Vehicle securing each such
Receivable has not been released from the lien of the related Receivable in
whole or in part. No provisions of any Receivable have been waived, altered or
modified in any respect since its origination, except by instruments or
documents identified in the Receivable File. No Receivable has been modified as
a result of application of the Soldiers' and Sailors' Civil Relief Act of 1940,
as amended.
16. LAWFUL ASSIGNMENT. No Receivable was originated in, or is
subject to the laws of, any jurisdiction the laws of which would make unlawful,
void or voidable the sale, transfer and assignment of such Receivable under this
Agreement or pursuant to transfers of the Notes or the Certificates.
17. GOOD TITLE. No Receivable has been sold, transferred, assigned
or pledged by OFL to any Person other than ORFC; immediately prior to the
conveyance of the Receivables to ORFC pursuant to this Agreement or any
Subsequent Purchase Agreement, as applicable, ORFC or OFL had good and
indefeasible title thereto, free and clear of any Lien, and immediately upon the
transfer thereof, ORFC shall have good and indefeasible title to and will be the
sole owner of each Receivable, free of any Lien. No Dealer has a participation
in, or other right to receive, proceeds of any Receivable. OFL has not taken
any action to convey any right to any Person that would result in such Person
having a right to payments received under the related Insurance Policies or the
related Dealer Agreements or Dealer Assignments or to payments due under such
Receivables.
18. SECURITY INTEREST IN FINANCED VEHICLE. Each Receivable created
or shall create a valid, binding and enforceable first priority security
interest in favor of OFL in the Financed Vehicle. The Lien Certificate and
original certificate of title for each Financed Vehicle show, or if a new or
replacement Lien Certificate is being applied for with respect to such Financed
Vehicle, the Lien Certificate will be received within 180 days of the Closing
Date or any Subsequent Transfer Date, as applicable, and will show, OFL named as
the original secured party under each Receivable as the holder of a first
priority security interest in such Financed Vehicle. With respect to each
Receivable for which the Lien Certificate has not yet been returned from the
Registrar of Titles, OFL has received written evidence from the
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related Dealer that such Lien Certificate showing OFL as first lienholder has
been applied for. OFL's security interest has been validly assigned by OFL to
ORFC pursuant to this Agreement or any Subsequent Purchase Agreement, as
applicable. Immediately after the sale, transfer and assignment thereof by ORFC
to the Trust, each Receivable will be secured by an enforceable and perfected
first priority security interest in the Financed Vehicle in favor of the Trust
as secured party, which security interest is prior to all other Liens upon and
security interests in such Financed Vehicle which now exist or may hereafter
arise or be created (except, as to priority, for any lien for taxes, labor or
materials affecting a Financed Vehicle). As of the Initial Cutoff Date or each
Subsequent Cutoff Date, as applicable, there were no Liens or claims for taxes,
work, labor or materials affecting a Financed Vehicle which are or may be Liens
prior or equal to the lien of the related Receivable.
19. ALL FILINGS MADE. All filings (including, without limitation,
UCC filings) required to be made by any Person and actions required to be taken
or performed by any Person in any jurisdiction to give the Trust a first
priority perfected lien on, or ownership interest in, the Receivables and the
Other Conveyed Property have been made, taken or performed.
20. NO IMPAIRMENT. OFL has not done anything to convey any right to
any Person that would result in such Person having a right to payments due under
a Receivable or otherwise to impair the rights of ORFC, the Trust, the Indenture
Trustee, the Security Insurer, the Noteholders and the Certificateholders in any
Receivable or the proceeds thereof.
21. RECEIVABLE NOT ASSUMABLE. No Receivable is assumable by another
Person in a manner which would release the Obligor thereof from such Obligor's
obligations to OFL with respect to such Receivable.
22. NO DEFENSES. No Receivable is subject to any right of
rescission, setoff, counterclaim or defense and no such right has been asserted
or threatened with respect to any Receivable.
23. NO DEFAULT. There has been no default, breach, violation or
event permitting acceleration under the terms of any Receivable (other than
payment delinquencies of not more than 30 days), and no condition exists or
event has occurred and is continuing that with notice, the lapse of time or both
would constitute a default, breach, violation or event permitting acceleration
under the terms of any Receivable, and there has been no waiver of any of the
foregoing. As of the Cutoff Date or any Subsequent Transfer Date, as
applicable, no Financed Vehicle had been repossessed.
24. INSURANCE. As of the date hereof or as of the date of any
Subsequent Purchase Agreement, as applicable, each Financed Vehicle is
covered by a comprehensive and collision insurance policy (i) in an amount at
least equal to the lesser of (a) its maximum insurable value or (b) the
principal amount due from
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the Obligor under the relate Receivable, (ii) naming OFL as loss payee and
(iii) insuring against loss and damage due to fire, theft, transportation,
collision and other risks generally covered by comprehensive and collision
coverage. Each Receivable requires the Obligor to maintain physical loss and
damage insurance, naming OFL and its successors and assigns as additional
insured parties, and each Receivable permits the holder thereof to obtain
physical loss and damage insurance at the expense of the Obligor if the Obligor
fails to do so. No Financed Vehicle was or had previously been insured under a
policy of Force-Placed Insurance on the Initial Cutoff Date or any Subsequent
Cutoff Date, as applicable.
25. PAST DUE. At the Initial Cutoff Date or any Subsequent Cutoff
Date, as applicable, no Receivable was more than 30 days past due.
26. REMAINING PRINCIPAL BALANCE. At the Initial Cutoff Date or any
Subsequent Cutoff Date, as applicable, each Receivable had a remaining principal
balance equal to or greater than $500.00 and the Principal Balance of each
Receivable set forth in the Schedule of Receivables is true and accurate in all
material respects.
27. FINAL SCHEDULED MATURITY DATE. No Receivable has a final
maturity later than December 31, 2003.
28. CERTAIN CHARACTERISTICS. (A) Each Initial Receivable had a
remaining maturity, as of the Initial Cutoff Date, of at least 3 months but
not more than 84 months; (B) each Initial Receivable had an original maturity
of at least 12 months but not more than 84 months; (C) each Initial
Receivable had an original principal balance of at least $610.00 and not more
than $77,071.93; (D)each Initial Receivable had a remaining Principal Balance
as of the Initial Cutoff Date of at least $507.54 and not more than
$76,619.22; (E) each Initial Receivable has an Annual Percentage Rate of at
least 7.50% and not more than 23.45%; (F) no Initial Receivable was more than
30 days past due as of the Initial Cutoff Date; (G) no funds have been
advanced by the Seller, the Servicer, any Dealer, or anyone acting on behalf
of any of them in order to cause any Receivable to qualify under clause (F)
above, (H) no Initial Receivable has a final scheduled payment date on or
before June 1, 1997, and (I) the Principal Balance of each Receivable set
forth in Schedule of Receivables is true and accurate in all material
respects as of the Initial Cutoff Date, (J) 17.25% of the Initial
Receivables, by principal balance as of the Initial Cutoff Date, was
attributable to loans for the purchase of new Financed Vehicles and 82.75% of
the Initial Receivables was attributable to loans for the purchase of used
Financed Vehicles, (K) not more than 49% of the Principal Balance as of the
Initial Cutoff Date was attributable to loans originated under OFL's
"Classic" program, (L) not more than 2% of the Principal Balance of the
Initial Receivables as of the Initial Cutoff Date had an Annual Percentage
Rate in excess of 21%, (M) not more than 0.25% of the Principal Balance of
such Receivables represented loans in excess of $50,000, (N) not more than
0.40% of the Principal Balance of such Receivables represented loans with
original terms greater than 72 months and (O) not more than 5.0% of the
Principal Balance of such Receivables represented loans secured by Financed
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Vehicles that previously secured a loan originated by OFL with an obligor other
than the current Obligor.
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