EXECUTION COPY
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THIRD AMENDMENT
AND CONSENT
dated as of May 30, 1997
Relating to
CERTIFICATE PURCHASE AGREEMENT
among
OLYMPIC AUTOMOBILE RECEIVABLES WAREHOUSE TRUST
as Seller,
ARCADIA FINANCIAL LTD.
(formerly Olympic Financial Ltd.)
as Servicer and in its individual capacity,
THE PARTIES SIGNATORY HERETO
as Purchasers,
and
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK,
as Agent for the Purchasers
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THIS THIRD AMENDMENT AND CONSENT dated as of May 30, 1997 (this
"AMENDMENT") Relating to the Certificate Purchase Agreement dated as of December
28, 1995 and amended as of December 20, 1996 and January 17, 1997 (as amended
and supplemented from time to time, the "CERTIFICATE PURCHASE AGREEMENT"), by
and among OLYMPIC AUTOMOBILE RECEIVABLES WAREHOUSE TRUST, a Delaware business
trust (the "SELLER"), ARCADIA FINANCIAL LTD. (formerly Olympic Financial Ltd.),
a Minnesota corporation, as Servicer (as defined below) and in its individual
capacity ("OFL"), XXXXXX GUARANTY TRUST COMPANY OF NEW YORK (successor to X.X.
XXXXXX DELAWARE) ("MGT"), and Olympic Receivables Finance Corp. II ("ORFC II")
(each of MGT and ORFC II, a "PURCHASER" and together, the "PURCHASERS"), and
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK, as agent for the benefit of the
Purchasers (the "PURCHASERS' AGENT"), is by and among the parties listed above.
Capitalized terms used in this Amendment and not otherwise defined shall have
the meanings assigned to such terms in the Certificate Purchase Agreement.
RECITALS
WHEREAS, pursuant to Section 13.01 of the Certificate Purchase
Agreement, the parties to such Agreement are authorized to amend the Certificate
Purchase Agreement in a written amendment signed by all parties thereto; and
WHEREAS, pursuant to Section 2.04 of the Certificate Purchase
Agreement, the parties may agree in writing to the extension of the Purchase
Commitment Expiration Date; and
WHEREAS, pursuant to Section 2.05(b) of the Certificate Purchase
Agreement, the Seller may request in writing an increase in the aggregate of the
Purchase Commitments and such increase will become effective if the Purchasers
and the Purchasers' Agent agree thereto; and
WHEREAS, pursuant to Section 8.05 of the Certificate Purchase
Agreement, the Seller agreed not to make any material amendment to the Sale and
Servicing Agreement without the prior written consent of the Purchasers; and
WHEREAS, pursuant to Section 9.05 of the Certificate Purchase
Agreement, OFL agreed not to make any material amendment to the Sale and
Servicing Agreement without the prior written consent of the Purchasers; and
WHEREAS, the parties to the Certificate Purchase Agreement desire to
further amend the Certificate Purchase Agreement to, among other things, change
that certain covenant relating to OFL's Capital Base; and
WHEREAS, the parties to the Certificate Purchase Agreement desire to
extend the optional termination date
provision of the Purchase Commitment Expiration Date by amending the related
definition in the Certificate Purchase Agreement; and
WHEREAS, the Purchasers and the Purchasers' Agent desire to agree to
the Seller's request for an increase in the aggregate Purchase Commitments; and
WHEREAS, the Purchasers and the Purchasers' Agent desire to consent to
amendment of the Sale and Servicing Agreement.
NOW THEREFORE, in consideration of the premises and the agreements
contained herein, the parties to this Amendment agree as follows:
SECTION 1. EXTENSION AND AMENDMENT OF PURCHASE COMMITMENT EXPIRATION
DATE. The parties hereto agree to extend the optional termination date
provision of the Purchase Commitment Expiration Date and to amend such
definition. The definition of "Purchase Commitment Expiration Date" in Section
1.01 of the Certificate Purchase Agreement is hereby amended to read as follows:
"PURCHASE COMMITMENT EXPIRATION DATE" means the earliest of
(i) December 19, 1997, (ii) August 29, 1997, but only if any Purchaser, in
its sole and absolute discretion, determines to terminate its Purchase
Commitment hereunder and so notifies the Seller, OFL and the Purchasers'
Agent in writing on or before July 31, 1997 and such terminating
Purchaser's Purchase Commitment is not accepted by another existing or new
Purchaser or Purchasers, (iii) the date on which an event which causes or
might cause a Certificate Purchase Termination Event occurs, and (iv) the
date on which a Securitized Offering occurs; provided that the Purchase
Commitment Expiration Date may be extended from time to time in accordance
with Section 2.04 hereof.
SECTION 2. INCREASE IN PURCHASE COMMITMENTS. The Purchasers and the
Purchasers' Agent agree to the increase of the aggregate of the Purchase
Commitments from $22,275,000 to $30,700,000. Following such increase, the
Purchasers' Purchase Percentages will remain unchanged, and their Purchase
Commitments will be revised proportionately. The Purchasers will evidence their
respective Purchase Commitments and Purchase Percentages by executing signature
pages to this Agreement. Such signature pages shall supersede the signature
pages to the Certificate Purchase Agreement dated January 17, 1997, and from and
after the date of this Agreement, all references to the signature pages of the
Certificate Purchase Agreement shall refer to the signature pages to this
Agreement.
SECTION 3. ADDITION OF WAIVER TO OFL'S MINIMUM CAPITAL BASE COVENANT.
The following new waiver language is added to the
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end of OFL's covenant in Section 9.06 to the Certificate Purchase Agreement and
Section 9.06 now reads as follows:
SECTION 9.06. MINIMUM CAPITAL BASE.
(a) OFL will not permit its consolidated Capital Base, on the last day
of its fiscal year, to be less than the sum of (i) its consolidated Capital
Base on the last day of the immediately preceding fiscal year, PLUS (ii) to
the extent Net Income for such fiscal year is greater than zero, Net Income
for such fiscal year PLUS (iii) Capital Base Proceeds for such fiscal year;
and
(b) OFL will not permit its consolidated Capital Base, on the last day
of any fiscal quarter other than the last day of its fiscal year, to be
less than the sum (i) 95% of its consolidated Capital Base on the last day
of the immediately preceding fiscal year PLUS (ii) Capital Base Proceeds
since the last day of the immediately preceding fiscal year;
PROVIDED, HOWEVER, that OFL shall not be deemed or declared to be in breach
of the covenants contained in this Section 9.06 as long as on the last day
of any fiscal quarter, OFL's consolidated Capital Base is not less than
$325,000,000;
SECTION 4. CONSENT TO AMENDMENT TO SALE AND SERVICING AGREEMENT. The
Purchasers hereby consent, pursuant to Section 8.05 and 9.05 of the Certificate
Purchase Agreement, to the Amendment No. 4 to Sale and Servicing Agreement, of
even date herewith, substantially in the form attached hereto as Appendix A.
SECTION 5. CERTIFICATE PURCHASE AGREEMENT IN FULL FORCE AND EFFECT AS
AMENDED AND SUPPLEMENTED. Except as specifically stated herein, all of the
terms and conditions of the Certificate Purchase Agreement shall remain in full
force and effect. All references to the Certificate Purchase Agreement in any
other document or instrument shall be deemed to mean the Certificate Purchase
Agreement, as amended and supplemented by this Amendment. This Amendment shall
not constitute a novation of the Certificate Purchase Agreement, but shall
constitute an amendment and supplement thereto. The parties hereto agree to be
bound by the terms and obligations of the Certificate Purchase Agreement, as
amended by this Amendment, as though the terms and obligations of the
Certificate Purchase Agreement were set forth herein.
SECTION 6. EFFECTIVENESS. This Amendment shall become effective as
of May 30, 1997 upon receipt by the Purchasers' Agent of (i) counterparts of
this Amendment, duly executed by each of the parties hereto, (ii) notice that
the conditions to effectiveness of the Second Amendment and Consent Relating to
Note Purchase Agreement dated the date hereof have been satisfied
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and (iii) confirmation by each of S&P and Xxxxx'x of the then-current ratings of
the Commercial Paper Notes.
SECTION 7. PRIOR UNDERSTANDINGS. This Amendment sets forth the
entire understanding of the parties relating to the subject matter hereof, and
supersedes all prior understandings and agreements, whether written or oral.
SECTION 8. COUNTERPARTS. This Amendment may be executed in any
number of counterparts and by separate parties hereto on separate counterparts,
each of which when executed shall be deemed an original, but all such
counterparts taken together shall constitute one and the same instrument.
SECTION 9. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties have caused this Amendment to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
OLYMPIC AUTOMOBILE RECEIVABLES
WAREHOUSE TRUST
as Seller
By: Wilmington Trust Company, as Owner Trustee
By:
---------------------------
Name: Authorized Officer
ARCADIA FINANCIAL LTD., as
Servicer and in its
individual capacity
By:
---------------------------
Name:
Title: Treasurer
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK, as a
Purchaser
Purchase By:
Commitment: $15,350,000 ---------------------------
Purchase Percentage: 50% Name:
Title:
OLYMPIC RECEIVABLES FINANCE
CORP. II, as a Purchaser
Purchase By:
Commitment: $15,350,000 ---------------------------
Purchase Percentage: 50% Name:
Title:
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK,
as Purchasers' Agent
By:
---------------------------
Name:
Title:
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