EXHIBIT 10.20
EXECUTION COPY
SECOND AMENDMENT
TO THE
AMENDED AND RESTATED
NOTE PURCHASE AGREEMENT
Arcadia Automobile Receivables Warehouse Trust
THIS SECOND AMENDMENT TO THE AMENDED AND RESTATED NOTE PURCHASE
AGREEMENT dated as of November 4, 1999 (this "Amendment"), among ARCADIA
AUTOMOBILE RECEIVABLES WAREHOUSE TRUST (the "Issuer"), ARCADIA FINANCIAL LTD.
("Arcadia"), RECEIVABLES CAPITAL CORPORATION (a "Purchaser" or "RCC"), BANK OF
AMERICA, N.A. (formerly known as Bank of America National Trust and Savings
Association), as RCC Agent (in such capacity, the "RCC Agent") and as
Administrative Agent (in such capacity, the "Administrative Agent"), DELAWARE
FUNDING CORPORATION (a "Purchaser" or "DFC"), and XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK, as DFC Agent (the "DFC Agent").
WHEREAS, the parties hereto wish to amend the Amended and Restated Note
Purchase Agreement dated as of July 21, 1998, as amended as of July 13, 1999 (as
amended and in effect from time to time, the "NOTE PURCHASE AGREEMENT"), among
the Issuer, Arcadia, the Purchasers, the RCC Agent and the DFC Agent to reduce
the minimum amount of any Note Increase from $7,000,000 to $5,000,000; and
WHEREAS, in accordance with the provisions of Section 7.1(b) of the
Sale and Servicing Agreement and Section 902 of the Indenture, the consent of
the Purchasers is required for certain amendments to the Sale and Servicing
Agreement and the Indenture, respectively, and RCC and DFC desire to consent to
the provisions of Amendment No. 2 dated the date hereof to the Sale and
Servicing Agreement ("Sale Agreement Amendment"), by and among the Issuer,
Arcadia Receivables Finance Corp., AFL, the RCC Agent and the DFC Agent and the
Indenture Supplement dated the date hereof (the "Indenture Supplement"), among
the Issuer, the Trustee, the RCC Agent and the DFC Agent.
NOW, THEREFORE, in consideration of the premises and the agreements
contained herein, the parties hereto agree as follows:
SECTION 1. AMENDMENT OF SECTION 1. Clause (i) of the last sentence of
the third paragraph of Section 1 of the Note Purchase Agreement is hereby
amended by deleting the dollar amount "$7,000,000" and inserting in lieu
thereof the dollar amount "$5,000,000."
SECTION 2. REPRESENTATIONS AND WARRANTIES. Each of Arcadia and the
Issuer represents and warrants that as of the date hereof no Event of Default
has occurred under the Sale and Servicing Agreement, and to the best of the
Issuer's or Arcadia's knowledge there is no set of circumstances existing that
with the passage of time, would constitute such an Event of Default or Servicer
Termination Event.
SECTION 3. CONSENT TO SALE AGREEMENT AMENDMENT AND INDENTURE SUPPLEMENT.
In accordance with the provisions Section 7.1(b) of the Sale and Servicing
Agreement and Section 902 of the Indenture, RCC and DFC hereby consent to the
provisions of the Sale Agreement Amendment and the Indenture Supplement.
SECTION 4. EFFECTIVENESS. The amendments and consent provided for by
this Amendment shall become effective as of November 4, 1999, upon the receipt
by each Agent, in form and substance satisfactory to the RCC Agent and the DFC
Agent, of (a) this Amendment duly executed and delivered by each of the parties
hereto (and consented to by each of the required parties), (b) an opinion of
counsel to AFL and ARFC, dated the date hereof, addressed to each Agent, the
Security Insurer and each Purchaser, covering such matters as the RCC Agent or
the DFC Agent may reasonably request, and (c) duly executed counterparts of the
Sale Agreement Amendment and the Indenture Supplement.
SECTION 5. NOTE PURCHASE AGREEMENT IN FULL FORCE AND EFFECT AS AMENDED.
Except as specifically amended hereby, all of the terms and conditions of the
Note Purchase Agreement shall remain in full force and effect and, except as
expressly provided herein, the effectiveness of this Amendment shall not operate
as, or constitute a waiver or modification of, any right, power or remedy of any
party to the Note Purchase Agreement. All references to the Note Purchase
Agreement in any other document or instrument shall be deemed to mean the Note
Purchase Agreement as amended by this Amendment. This Amendment shall not
constitute a novation of the Note Purchase Agreement, but shall constitute an
amendment thereof.
SECTION 6. 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 7. GOVERNING LAW. THIS AMENDMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS.
SECTION 8. DEFINED TERMS. Capitalized terms used herein and not
otherwise defined shall have the meaning assigned to such terms in the Note
Purchase Agreement.
SECTION 9. LIMITATION OF OWNER TRUSTEE LIABILITY. It is expressly
understood and agreed by the parties hereto that (a) this Amendment is executed
and delivered by Wilmington Trust Company, not individually or personally but
solely as Owner Trustee of the Issuer, in the exercise of the powers and
authority conferred and vested in it under the Trust Agreement, (b) each of the
representations, undertakings and agreements herein made on the part of the
Issuer is made and intended not as a personal representation, undertaking and
agreement by Wilmington Trust Company but is made and intended for the purpose
of binding only the Issuer and (c) under no circumstances shall Wilmington Trust
Company be personally liable for the payment of any indebtedness or expenses of
the Issuer or be liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken by the Issuer under this
Amendment or the other related documents.
2
IN WITNESS WHEREOF, each Purchaser, the RCC Agent, the DFC Agent,
Arcadia and the Issuer have caused this Amendment to be duly executed by their
respective officers thereunto duly authorized as of the date first above
written.
ARCADIA AUTOMOBILE RECEIVABLES
TRUST
By: Wilmington Trust Company, not in its
individual capacity but solely as
Owner Trustee
By: /s/ Xxxx Xxx Xxxxxxx
-------------------------------------
Name: Xxxx Xxx Xxxxxxx
Title: Financial Services Officer
ARCADIA FINANCIAL LTD.
By: /s/ Xxxx X. Xxxxxx
------------------------------------
Name: Xxxx X. Xxxxxx
Title: Executive Vice President and
Chief Financial Officer
RECEIVABLES CAPITAL CORPORATION,
as a Purchaser
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: XXXXXXX X. XXXXXX
Title: Managing Director
BANK OF AMERICA, N.A.,
(formerly known as Bank of America
National Trust and Savings Association),
as Administrative Agent and RCC Agent
By: /s/ Xxxxx X. Xxxx
------------------------------------
Name: XXXXX X. XXXX
Title: VICE PRESIDENT
[Signature Page to Second Amendment to the Amended and Restated Note Purchase
Agreement]
DELAWARE FUNDING CORPORATION,
as a Purchaser
By: Xxxxxx Guaranty Trust Company of
New York as attorney-in-fact for
Delaware Funding Corporation
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
XXXXXX GUARANTY TRUST COMPANY OF NEW
YORK, as DFC Agent
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
[Signature Page to Second Amendment to the Amended and Restated Note Purchase
Agreement]
