EXECUTION COPY
FIFTH AMENDMENT
RELATING TO
ASSET PURCHASE AGREEMENT
Olympic Automobile Receivables Warehouse Trust
Variable Funding Notes
THIS FIFTH AMENDMENT AND CONSENT dated as of June 30, 1997 (the "FIFTH
AMENDMENT") Relating to the ASSET PURCHASE AGREEMENT, dated as of December 28,
1995 and amended as of June 12, 1996, December 20, 1996, January 17, 1997 and
May 30, 1997 (the "AGREEMENT") among Xxxxxx Guaranty Trust Company of New York
(successor to X.X. Xxxxxx Delaware), as administrative agent (the "AGENT") and
each of the parties (collectively, the "APA PURCHASERS") who has (i) executed a
signature page to the Agreement or (ii) executed an Assignment of Purchase
Commitment, is by and among the parties listed above. Capitalized terms used in
this Fifth Amendment and not otherwise defined shall have the meanings assigned
to such terms in the Agreement.
RECITALS
WHEREAS, May 27, 1997 was the date by which each current APA Purchaser
is required to notify OFL and the Agent if it has determined to exercise its
option to terminate its Purchase Commitment; and
WHEREAS, certain current APA Purchasers have so notified the Agent and
OFL (such APA Purchasers, the "Terminating Purchasers"); and
WHEREAS, the Seller has determined to reduce the Facility Limit, such
reduction to be effective as of June 30, 1997; and
WHEREAS, due to the exercise of the optional termination by the
Terminating Purchasers, and the reduction in DFC's Purchase Commitment and in
the Facility Limit, the Percentages of the remaining APA Purchasers will be
affected as evidenced herein; and
WHEREAS, in accordance with the provisions of Section 13(l) of the
Agreement, Delaware Funding Corporation and Arcadia Financial Ltd. (formerly
Olympic Financial Ltd.) ("OFL") are willing to consent to this Fifth Amendment
upon the terms provided for herein.
NOW THEREFORE, in consideration of the premises and the agreements
contained herein, the parties hereto agree as follows:
SECTION 1. ACKNOWLEDGEMENT OF DECREASE IN FACILITY LIMIT AND DFC'S
PURCHASE LIMIT. In accordance with the provisions of Section 12(b) of the
Agreement, all of the APA Purchasers who execute the attached signature pages
hereby acknowledge the reduction in the Facility Limit and DFC's Purchase Limit
from $225,000,000 to $185,000,000.
SECTION 2. AMENDMENTS OF SIGNATURE PAGES. As a result of the
withdrawal of the Terminating Purchasers as APA Purchasers, pursuant to Sections
2(a), 12(b) and 13(1) of the Agreement, the Percentages of remaining APA
Purchasers are being revised. The Percentages and extended Purchase Termination
Dates of the remaining APA Purchasers are specified in the executed signature
pages attached to this Fifth Amendment as Exhibit A. The attached signature
pages shall supersede the signature pages to the Agreement dated May 30, 1997,
and from and after the date of this Fifth Amendment all references to the
signature pages of the Agreement shall refer to the signature pages attached as
Exhibit A to this Fifth Amendment.
SECTION 3. EFFECTIVENESS. The amendments provided for by this Fifth
Amendment shall become effective as of June 30, 1997, upon receipt by the Agent
of (i) counterparts of this Fifth Amendment, duly executed by each of the
parties hereto, (ii) notice that the conditions to effectiveness of the
Acknowledgment of Reduction of Purchase Commitment Relating to Note Purchase
Agreement dated the date hereof have been satisfied and (iii) confirmation by
each of S&P and Xxxxx'x of the then-current ratings of the Commercial Paper
Notes.
SECTION 4. AGREEMENT IN FULL FORCE AND EFFECT AS AMENDED. Except as
specifically amended or waived hereby, all of the terms and conditions of the
Agreement shall remain in full force and effect. All references to the
Agreement in any other document or instrument shall be deemed to mean such
Agreement as amended by this Fifth Amendment. This Fifth Amendment shall not
constitute a novation of the Agreement, but shall constitute an amendment
thereof. The parties hereto agree to be bound by the terms and obligations of
the Agreement, as amended by this Fifth Amendment, as though the terms and
obligations of the Agreement were set forth herein.
SECTION 5. PRIOR UNDERSTANDINGS. This Fifth 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 6. COUNTERPARTS. This Fifth 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.
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SECTION 7. GOVERNING LAW. THIS FIFTH AMENDMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 8. DEFINED TERMS. Capitalized terms used herein and not
otherwise defined shall have the meanings assigned to such terms in the
Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Fifth
Amendment to the Agreement to be duly executed by their respective authorized
officers as of the day and year first above written.
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK
By:
------------------------
Title:
Acknowledged and consented to:
June 30, 1997
DELAWARE FUNDING CORPORATION
By: Xxxxxx Guaranty Trust Company
of New York,
as attorney-in-fact for
Delaware Funding Corporation
By:
------------------------
Authorized Signatory
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Title
ARCADIA FINANCIAL LIMITED
By:
------------------------
Authorized Signatory
------------------------
Title
4
EXHIBIT A
Signature Page
with respect to
Olympic Automobile Receivables Warehouse Trust
Variable Funding Notes
Asset Purchase Agreement
Dated as of December 28, 1995
Amended as of June 12, 1996
Amended as of December 20, 1996
Amended as of January 17, 1997
Amended as of May 30, 1997
Amended as of June 30, 1997
Xxxxxx Guaranty Trust Company of
New York,
as Agent and as Administrative
Agent
By:
------------------------
Authorized Signature
------------------------
Title
Signature Page
with respect to
Olympic Automobile Receivables Warehouse Trust
Variable Funding Notes
Asset Purchase Agreement
SECTION 1.
Percentage: 45.946%
SECTION 2.
Maximum Purchase: $85,000,000
SECTION 3.
Effective Date of Purchase Commitment: January 17, 1997
SECTION 4.
Purchase Termination Date: December 19, 1997*
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK
000 Xxxxxxx Xxxxxxxxxx Xxxx
Xxxxxx, Xxxxxxxx 00000-0000
By:
------------------------
Authorized Signature
------------------------
Title
---------------------------
* At the option of the APA Purchaser named above, August 29, 1997.
Signature Page
with respect to
Olympic Automobile Receivables Warehouse Trust
Variable Funding Notes
Asset Purchase Agreement
SECTION 1.
Percentage: 27.027%
SECTION 2.
Maximum Purchase: $50,000,000
SECTION 3.
Effective Date of Purchase Commitment: January 17, 1997
SECTION 4.
Purchase Termination Date: December 19, 1997*
XXXXXX TRUST AND SAVINGS BANK
000 Xxxx Xxxxxx Xxxxxx
P.O. Box 755
Chicago, Illinois 60690
By:
------------------------
Title:
By:
------------------------
Title:
---------------------------
* At the option of the APA Purchaser named above, August 29, 1997.
Signature Page
with respect to
Olympic Automobile Receivables Warehouse Trust
Variable Funding Notes
Asset Purchase Agreement
SECTION 1.
Percentage: 27.027%
SECTION 2.
Maximum Purchase: $50,000,000
SECTION 3.
Effective Date of Purchase Commitment: January 17, 1997
SECTION 4.
Purchase Termination Date: December 19, 1997*
BANCO SANTANDER, NEW YORK BRANCH
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
By:
------------------------
Title:
By:
------------------------
Title:
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* At the option of the APA Purchaser named above, August 29, 1997.
