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EXHIBIT 10.5
SUBORDINATION AGREEMENT
BETWEEN
ORIX CREDIT ALLIANCE, INC.,
AS SERVICER
AND
ORIX CREDIT ALLIANCE RECEIVABLES TRUST 2000-B,
AS ISSUER
DATED AS OF AUGUST __, 2000
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TABLE OF CONTENTS
Page
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1. Subordination of Security Interests...........................................1
2. Governing Law.................................................................2
3. Term of Agreement.............................................................2
4. Notices.......................................................................2
5. Binding Effect................................................................2
6. Limitation of Liability.......................................................2
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SUBORDINATION AGREEMENT
Subordination Agreement, dated as of August __, 2000, between
ORIX CREDIT ALLIANCE, INC., a New York corporation ("OCAI" or the "Servicer")
and ORIX CREDIT ALLIANCE RECEIVABLES TRUST 2000-B, a Delaware business trust
(the "Issuer").
WHEREAS, OCAI and the Issuer have entered into a Transfer and
Servicing Agreement, dated as of August __, 2000 (the "Agreement"), among OCAI,
the Issuer, The Bank of New York (the "Indenture Trustee") and ORIX Credit
Alliance Receivables 2000-B Corporation (the "Trust Depositor") (the capitalized
terms defined therein being used herein with the same meaning as set forth
therein); and
WHEREAS, pursuant to the Agreement, the Trust Depositor has
assigned to the Issuer certain Contracts secured by Financed Items and other
collateral of the Obligors (together, the "Collateral"); and
WHEREAS, OCAI in the ordinary course of its equipment finance
business may, subsequent to entering into such Contracts, enter into additional
financing agreements with Obligors and pursuant thereto take a security interest
in the additional financed equipment ("Subsequently Financed Items"); and
WHEREAS, the contracts resulting from such additional financing
agreements with Obligors may provide that in addition to the Subsequently
Financed Items, the Obligor grant OCAI a security interest in other equipment
owned by the Obligor, which could include the Collateral as well as the
Subsequently Financed Items; and
WHEREAS, certain of the Contracts assigned to the Issuer by the
Trust Depositor may include Obligors entering into such additional financing
agreements with OCAI which could be secured by Collateral and Subsequently
Financed Items; and
NOW, THEREFORE, in consideration of the mutual agreements herein
contained and of other good and valuable consideration the receipt and adequacy
of which are hereby acknowledged, the parties agree as follows:
1. SUBORDINATION OF SECURITY INTERESTS. OCAI's security
interests in the Collateral (other than the Subsequently Financed Items) shall
be and hereby are made junior in priority to all security interests of the
Issuer in such Collateral; the Issuer's security interests in the Subsequently
Financed Items shall be and hereby are made junior in priority to the security
interests of OCAI in such Collateral; provided, however, that the security
interests of OCAI and the Issuer in the Collateral other than the Financed
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Items or the Subsequently Financed Items shall be pari passu in right of payment
and equivalent in priority in proportion to the amounts owed by the Obligor if
and for so long as the value of the Financed Items securing a Contract shall be
determined, in accordance with OCAI's normal valuation procedures, to exceed at
least 120% of the Principal Balance of the Contract owned by the Issuer.
2. GOVERNING LAW. This Subordination Agreement shall be
governed by, and construed in accordance with, the laws of the State of New
York.
3. TERM OF AGREEMENT. This Agreement shall continue in force
until all amounts due and payable with respect to the Contracts have been paid
in full, upon which event this Agreement shall automatically terminate. The
priorities specified herein are applicable irrespective of the time or order of
attachment or perfection of security interests or the time or order of filing of
financing statements or the giving or failure to give notice of the acquisition
or expected acquisition of purchase money or other security interests. Except as
herein specifically provided, priority shall be determined in accordance with
applicable law.
4. NOTICES. All demands, notices and communications hereunder
shall be in writing, personally delivered or mailed by certified mail-return
receipt requested, and shall be deemed to have been duly given upon receipt (a)
in the case of OCAI, at the following address: ORIX Credit Alliance, Inc., 000
Xxxxxxxx Xxx, Xxxxxxxx, Xxx Xxxxxx 00000, Attn: Executive Vice
President-Finance, (b) in the case of the Issuer, at the following address: c/o
Bank of New York (Delaware), 000 Xxxxx Xxxx Xxxxxx, X.X. Xxx 0000, Xxxxxx,
Xxxxxxxx 00000-0000, Attn: Corporate Trust Administration, or at such other
address as shall be designated by such party in a written notice to the other
party.
5. BINDING EFFECT. This Subordination Agreement shall be
binding upon and shall inure to the benefit of OCAI and the Issuer and their
respective successors and assigns.
6. LIMITATION OF LIABILITY. The Bank of New York (Delaware)
acts on behalf of the Issuer solely as Owner Trustee hereunder and not in its
individual capacity, and all Persons having any claim against the Trust by
reason of the transactions contemplated by this agreement or any other
Transaction Document shall look only to the Trust Estate under the Trust
Agreement for payment or satisfaction thereof. The Owner Trustee makes no
representations as to the validity or sufficiency of this agreement, any other
Transaction Document or the Notes, or of any Contract or related documents. The
Owner Trustee shall at no time have any responsibility or liability for or with
respect to the legality, validity and enforceability of any Contract, or the
perfection and priority of
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any security interest created by any Contract in any Equipment or the
maintenance of any such perfection and priority, or for or with respect to the
sufficiency of the Trust Estate under the Trust Agreement or its ability to
generate the payments to be distributed to the Certificateholder under the Trust
Agreement or the Noteholders under the Indenture, including, without limitation,
the existence, condition and ownership of any Equipment; the existence and
enforceability of any insurance thereon; the existence and contents of any
Contract on any computer or other record thereof; the validity of the assignment
of any Contract to the Trust or of any intervening assignment; the completeness
of any Contract; the performance or enforcement of any Contract; the compliance
by the Issuer, the Trust Depositor or the Servicer with any covenant, agreement
or other obligation or any warranty or representation made under any Transaction
Document or in any related document or the accuracy of any such warranty or
representation; or any action of the Administrator, the Indenture Trustee or the
Servicer or any subservicer taken in the name of the Owner Trustee or the
Issuer.
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Subordination Agreement to be executed in its name and on its behalf by a duly
authorized officer as of the day and year first above written.
ORIX CREDIT ALLIANCE, INC.,
By:
Name: Xxxxxx X. XxXxxxxx, Xx.
Title: Executive Vice President
ORIX CREDIT ALLIANCE RECEIVABLES
TRUST 2000-B
By THE BANK OF NEW YORK (DELAWARE), not
in its individual capacity but solely as
Owner Trustee,
By:
Name:
Title:
