Exhibit 10.2
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ADMINISTRATION AGREEMENT
among
NEWCOURT EQUIPMENT TRUST SECURITIES 1998-1,
as Issuer,
NEWCOURT FINANCIAL USA INC.
as Administrator
NEWCOURT RECEIVABLES CORPORATION II,
as Trust Depositor,
and
XXXXXX TRUST AND SAVINGS BANK,
as Indenture Trustee
Dated as of October [ ], 1998
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TABLE OF CONTENTS
SECTION 1. DUTIES OF THE ADMINISTRATOR.. . . . . . . . . . . . . . . . . . . . 3
SECTION 2. RECORDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 3. COMPENSATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 4. ADDITIONAL INFORMATION TO BE FURNISHED TO THE ISSUER. . . . . . . . 6
SECTION 5. INDEPENDENCE OF THE ADMINISTRATOR . . . . . . . . . . . . . . . . . 6
SECTION 6. NO JOINT VENTURE. . . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 7. OTHER ACTIVITIES OF ADMINISTRATOR . . . . . . . . . . . . . . . . . 6
SECTION 8. TERM OF AGREEMENT; RESIGNATION AND REMOVAL OF ADMINISTRATOR . . . . 6
SECTION 9. ACTION UPON TERMINATION, RESIGNATION OR REMOVAL . . . . . . . . . . 7
SECTION 10. NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 11. AMENDMENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 12. SUCCESSORS AND ASSIGNS. . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 13. GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 14. HEADINGS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 15. COUNTERPARTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 16. SEVERABILITY. . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 17. NOT APPLICABLE TO NEWCOURT USA IN OTHER CAPACITIES. . . . . . . . . 9
SECTION 18. LIMITATION OF LIABILITY OF OWNER TRUSTEE AND INDENTURE TRUSTEE. . . 9
SECTION 19. THIRD-PARTY BENEFICIARY . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 20. SURVIVABILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
This Administration Agreement, dated as of October [ ], 1998 (this
"AGREEMENT"), is among Newcourt Equipment Trust Securities 0000-0 (xxx
"XXXXXX"), Xxxxxxxx Financial USA Inc. ( together with its successors and
assigns, "NEWCOURT USA") in its capacity as administrator (the
"ADMINISTRATOR"), Newcourt Receivables Corporation II (together with its
successors and assigns, the "TRUST DEPOSITOR") and Xxxxxx Trust and Savings
Bank, not in its individual capacity but solely as Indenture Trustee
(together with its successors and assigns, the "INDENTURE TRUSTEE").
W I T N E S S E T H:
WHEREAS, the Issuer is issuing [ ]% Class A-1 Receivable-Backed
Notes, Series 1998-1, [ ]% Class A-2 Receivable-Backed Notes, Series
1998-1, [ ]% Class A-3 Receivable-Backed Notes, Series 1998-1, [ ]%
Class A-4 Receivable-Backed Notes, Series 1998-1, [ ]% Class B
Receivable-Backed Notes, Series 1998-1, [ ]% Class C Receivable-Backed
Notes, Series 1998-1, [ ]% Class D Receivable-Backed Notes, Series 1998-1
and [ ]% Class E Receivable-Backed Notes, Series 1998-1 (collectively, the
"NOTES") pursuant to the Indenture, dated as of the date hereof (the
"INDENTURE"), between the Issuer and the Indenture Trustee (capitalized terms
used herein that are not otherwise defined shall have the meanings ascribed
thereto in the Pooling and Servicing Agreement as defined in the Indenture);
WHEREAS, the Issuer has entered into certain agreements in connection
with the issuance of the Notes and of certain beneficial ownership interests
of the Issuer, including (i) a Pooling and Servicing Agreement, dated as of
the date hereof (the "POOLING AND SERVICING AGREEMENT"), among the Issuer,
the Indenture Trustee, the Trust Depositor and Newcourt USA, as Servicer
thereunder, and (ii) the Indenture, and (iii) the other Transaction Documents
to which the Issuer is a party;
WHEREAS, pursuant to the Transaction Documents, the Issuer and the Owner
Trustee are required to perform certain duties in connection with (i) the
Notes and the Collateral therefor pledged pursuant to the Indenture and (ii)
the beneficial ownership interests in the Issuer evidenced by the Class F
Certificate (the registered holder of such interests being referred to herein
as the "OWNER");
WHEREAS, the Issuer and the Owner Trustee desire to have the
Administrator perform certain of the duties of the Issuer and the Owner
Trustee referred to in the preceding clause and to provide such additional
services consistent with the terms of this Agreement and the Transaction
Documents as the Issuer and the Owner Trustee may from time to time request;
and
WHEREAS, the Administrator has the capacity to provide the services
required hereby and is willing to perform such services for the Issuer and
the Owner Trustee on the terms set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and other good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties hereto agree as follows:
SECTION 1. DUTIES OF THE ADMINISTRATOR.
(a) Duties with respect to the Transaction Documents.
(i) The Administrator agrees to perform all its duties as
Administrator and the duties of the Issuer and the Owner Trustee under the
Transaction Documents. In addition, the Administrator shall consult with
the Owner Trustee regarding the duties of the Issuer or the Owner Trustee
under the Transaction Documents. The Administrator shall monitor the
performance of the Issuer and shall advise the Owner Trustee when action is
necessary to comply with the respective duties of the Issuer and the Owner
Trustee under the Transaction Documents. The Administrator shall prepare
for execution by the Issuer or shall cause the preparation by other
appropriate persons of, all such documents, reports, filings, instruments,
certificates and opinions that it shall be the duty of the Issuer or the
Owner Trustee to prepare, file or deliver pursuant to the Transaction
Documents. In furtherance of the foregoing, the Administrator shall take
all appropriate action that the Issuer or the Owner Trustee is required to
take pursuant to the Indenture including, without limitation, such of the
foregoing as are required with respect to the following matters under the
Indenture (references are to Sections of the Indenture):
(A) the duty to cause the Note Register to be kept and to give the
Indenture Trustee notice of any appointment of a new Note Registrar and the
location, or change in location, of the Note Register (Section 2.04);
(B) the notification of Noteholders of the final principal payment on
their Notes (Section 2.07(b));
(C) the preparation of or obtaining of the documents and instruments
required for execution and authentication of the Notes and delivery of the
same to the Indenture Trustee (Section 2.02);
(D) the preparation, obtaining or filing of the instruments, opinions
and certificates and other documents required for the release of Collateral
(Section 2.12);
(E) the maintenance of an office in New York, New York, or the
appointment of the Indenture Trustee as its agent therefor, for
registration of transfer or exchange of Notes (Section 3.02);
(F) the duty to cause newly appointed Paying Agents, if any, to
deliver to the Indenture Trustee the instrument specified in the Indenture
regarding funds held in trust (Section 3.03);
(G) the direction to the Indenture Trustee to deposit monies with
Paying Agents, if any, other than the Indenture Trustee (Section 3.03);
(H) the obtaining and preservation of the Issuer's qualification to
do business in each jurisdiction in which such qualification is or shall be
necessary to protect the validity and enforceability of the Indenture, the
Notes, the collateral and each other instrument and agreement included in
the Collateral (Section 3.04);
(I) the preparation of all supplements and amendments to the
Indenture and all financing statements, continuation statements,
instruments of further assurance and other instruments and the taking of
such other action as is necessary or advisable to protect the Collateral
other than as prepared by the Servicer (Section 3.05);
(J) the delivery of certain statements as to compliance with the
Indenture (Sections 3.09);
(K) the identification to the Indenture Trustee in an Officer's
Certificate of a Person with whom the Issuer has contracted to perform its
duties under the Indenture (Section 3.07(b));
(L) the notification of the Indenture Trustee and each Rating Agency
of a Servicer Default under the Pooling and Servicing Agreement;
(M) the preparation and obtaining of documents and instruments
required for the release of the Issuer from its obligations under the
Indenture (Section 3.10(b));
(N) the monitoring of the Issuer's obligations as to the satisfaction
and discharge of the Indenture and the preparation of an Officer's
Certificate and the obtaining of the Opinion of Counsel and the Independent
Certificate relating thereto (Section 4.01);
(O) the compliance with any written directive of the Indenture
Trustee with respect to the sale of the Collateral in a commercially
reasonable manner if an Event of Default shall have occurred and be
continuing (Section 5.04);
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(P) the preparation and delivery of notice to Noteholders of the
removal of the Indenture Trustee and the appointment of a successor
Indenture Trustee (Section 6.08);
(Q) the preparation of any written instruments required to confirm
more fully the authority of any co-trustee or separate trustee and any
written instruments necessary in connection with the resignation or removal
of the Indenture Trustee or any co-trustee or separate trustee (Sections
6.08 and 6.10);
(R) the furnishing of the Indenture Trustee with the names and
addresses of Noteholders during any period when the Indenture Trustee is
not the Note Registrar (Section 7.01);
(S) the filing of reports required by the Commission (Section 7.03);
(T) the opening of one or more accounts in the Indenture Trustee's
name, the preparation and delivery of Issuer Orders, Officer's Certificates
and Opinions of Counsel and all other actions necessary with respect to
investment and reinvestment of funds in the Trust Accounts (Sections 8.02
and 8.03);
(U) the preparation of an Issuer Request and Officer's Certificate
and the obtaining of an Opinion of Counsel and Independent Certificates, if
necessary, for the release of the Collateral (Sections 8.04 and 8.05);
(V) the preparation of Issuer Orders and the obtaining of Opinions of
Counsel with respect to the execution of supplemental indentures and the
mailing to the Noteholders of notices with respect to such supplemental
indentures (Sections 9.01, 9.02 and 9.03);
(W) the execution and delivery of new Notes conforming to any
supplemental indenture (Section 9.06);
(X) the duty to notify Noteholders of redemption of the Notes or to
cause the Indenture Trustee to provide such notification (Section 10.02);
(Y) the preparation and delivery of all Officer's Certificates,
Opinions of Counsel and Independent Certificates with respect to any
requests by the Issuer to the Indenture Trustee to take any action under
the Indenture (Section 11.01(a));
(Z) the preparation and delivery of Officer's Certificates and the
obtaining of Independent Certificates, if necessary, for the release of
property from the lien of the Indenture (Section 11.01(b));
(AA) the notification of the Rating Agencies, upon the failure of the
Issuer, the Owner Trustee or the Indenture Trustee to provide notification;
(BB) the preparation and delivery to Noteholders and the Indenture
Trustee of any agreements with respect to alternate payment and notice
provisions (Section 11.06); and
(CC) the recording of the Indenture, if applicable (Section 11.14).
(ii) The Administrator will:
(A) except as otherwise expressly provided in the Indenture or the
Pooling and Servicing Agreement, pay the Indenture Trustee's fees and
reimburse the Indenture Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Indenture
Trustee in
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accordance with any provision of the Indenture (including the
reasonable compensation, expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith;
(B) indemnify the Indenture Trustee and its officers, directors,
employees or agents for, and hold them harmless against, any loss,
liability or expense incurred without negligence or bad faith on their
part, arising out of or in connection with the acceptance or administration
of the transactions contemplated by the Indenture and this Agreement,
including the reasonable costs and expenses of defending themselves against
any claim or liability in connection with the exercise or performance of
any of their powers or duties under the Indenture; and
(C) indemnify the Owner Trustee and its officers, directors,
employees or agents for, and hold them harmless against, any loss,
liability or expense incurred without negligence or bad faith on their
part, arising out of or in connection with the acceptance or administration
of the transactions contemplated by the Trust Agreement and this Agreement,
including the reasonable costs and expenses of defending themselves against
any claim or liability in connection with the exercise or performance of
any of their powers or duties under the Trust Agreement (and including
without limitation, an indemnity as described above with respect to the
Trust Depositor's obligations in favor of the Owner Trustee under Section
8.02 of the Trust Agreement).
(b) Additional Duties.
(i) In addition to the duties set forth in Section 1(a)(i), the
Administrator shall perform such calculations and shall prepare or shall
cause the preparation by other appropriate persons of, and shall execute on
behalf of the Issuer or the Owner Trustee, all such documents, reports,
filings, instruments, certificates and opinions that the Issuer or the
Owner Trustee are required to prepare, file or deliver pursuant to the
Transaction Documents or Section 5.05 of the Trust Agreement, and at the
request of the Owner Trustee shall take all appropriate action that the
Issuer or the Owner Trustee are required to take pursuant to the
Transaction Documents. In furtherance thereof, the Owner Trustee shall, on
behalf of itself and of the Issuer, execute and deliver to the
Administrator and to each successor Administrator appointed pursuant to the
terms hereof, one or more powers of attorney substantially in the form of
EXHIBIT A hereto, appointing the Administrator the attorney-in-fact of the
Owner Trustee and the Issuer for the purpose of executing on behalf of the
Owner Trustee and the Issuer all such documents, reports, filings,
instruments, certificates and opinions. Subject to Section 5, and in
accordance with the directions of the Issuer, the Administrator shall
administer, perform or supervise the performance of such other activities
in connection with the Collateral (including the Transaction Documents) as
are not covered by any of the foregoing provisions and as are expressly
requested by the Issuer and are reasonably within the capability of the
Administrator.
(ii) Notwithstanding anything in this Agreement or the Transaction
Documents to the contrary, the Administrator shall be responsible for
promptly notifying the Owner Trustee in the event that any withholding tax
is imposed on the Trust's payments (or allocations of income) to the Owner
as contemplated in Section 5.02(c) of the Trust Agreement. Any such notice
shall specify the amount of any withholding tax required to be withheld by
the Owner Trustee pursuant to such provision.
(iii) Notwithstanding anything in this Agreement or the
Transaction Documents to the contrary, the Administrator shall be
responsible for performance of the duties of the Owner Trustee set forth in
Section 5.05(a), (b), (c) and (d), the penultimate sentence of Section 5.05
and Section 5.06(a) of the Trust Agreement with respect to, among other
things, accounting and reports to the Owner; PROVIDED, HOWEVER, that the
Owner Trustee shall retain responsibility for the distribution of
information forms necessary to enable the Owner to prepare its federal and
state income tax returns.
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(iv) The Administrator shall satisfy its obligations with respect to
clauses (ii) and (iii) above by retaining, at the expense of the Trust
payable by the Administrator, a firm of independent public accountants (the
"ACCOUNTANTS") acceptable to the Owner Trustee, which shall perform the
obligations of the Administrator thereunder.
(v) The Administrator shall perform the duties of the Administrator
specified in Section 10.02 of the Trust Agreement required to be performed
in connection with the resignation or removal of the Owner Trustee, and any
other duties expressly required to be performed by the Administrator under
the Trust Agreement.
(vi) In carrying out the foregoing duties or any of its other
obligations under this Agreement, the Administrator may enter into
transactions or otherwise deal with any of its Affiliates; PROVIDED,
HOWEVER, that the terms of any such transactions or dealings shall be in
accordance with any directions received from the Issuer and shall be, in
the Administrator's opinion, no less favorable to the Issuer than would be
available from unaffiliated parties.
(c) Non-Ministerial Matters.
(i) With respect to matters that in the reasonable judgment of the
Administrator are non-ministerial, the Administrator shall not take any
action unless within a reasonable time before the taking of such action,
the Administrator shall have notified the Owner Trustee of the proposed
action and the Owner Trustee shall not have withheld consent or provided an
alternative direction. For the purpose of the preceding sentence,
"NON-MINISTERIAL MATTERS" shall include, without limitation:
(A) the amendment of or any supplement to the Indenture;
(B) the initiation of any claim or lawsuit by the Issuer and the
compromise of any action, claim or lawsuit brought by or against the Issuer
(other than in connection with the collection of the Contracts);
(C) the amendment, change or modification of any other Transaction
Documents;
(D) the appointment of successor Note Registrars, successor Paying
Agents and successor Indenture Trustees pursuant to the Indenture or the
appointment of successor Administrators or a successor Servicer, or the
consent to the assignment by the Note Registrar, Paying Agent or Indenture
Trustee of its obligations under the Indenture; and
(E) the removal of the Indenture Trustee.
(ii) Notwithstanding anything to the contrary in this Agreement, the
Administrator shall not be obligated to, and shall not, (A) make any
payments to the Noteholders under the Transaction Documents, (B) sell the
Collateral pursuant to clause (iv) of Section 5.04 of the Indenture, (C)
take any other action that the Issuer directs the Administrator not to take
on its behalf or (D) take any other action which may be construed as having
the effect of varying the investment of the Holders.
SECTION 2. RECORDS. The Administrator shall maintain appropriate
books of account and records relating to services performed hereunder, which
books of account and records shall be accessible for inspection by the Issuer
and the Owner Trustee at any time during normal business hours.
SECTION 3. COMPENSATION. As compensation for the performance of the
Administrator's obligations under this Agreement and as reimbursement for its
expenses related thereto, the Administrator shall be entitled to a monthly
fee
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which shall be solely an obligation of the Servicer as contemplated in
Section 5.19 of the Pooling and Servicing Agreement and which shall be in an
amount as shall be agreeable to the Trust Depositor and the Administrator.
SECTION 4. ADDITIONAL INFORMATION TO BE FURNISHED TO THE ISSUER.
The Administrator shall furnish to the Issuer from time to time such
additional information regarding the Collateral as the Issuer shall
reasonably request.
SECTION 5. INDEPENDENCE OF THE ADMINISTRATOR. For all purposes of
this Agreement, the Administrator shall be an independent contractor and
shall not be subject to the supervision of the Issuer or the Owner Trustee
with respect to the manner in which it accomplishes the performance of its
obligations hereunder. Unless expressly authorized by the Issuer, the
Administrator shall have no authority to act for or represent the Issuer or
the Owner Trustee in any way and shall not otherwise be deemed an agent of
the Issuer or the Owner Trustee.
SECTION 6. NO JOINT VENTURE. Nothing contained in this Agreement
(i) shall constitute the Administrator and either of the Issuer or the Owner
Trustee as members of any partnership, joint venture, association, syndicate,
unincorporated business or other separate entity, (ii) shall be construed to
impose any liability as such on any of them or (iii) shall be deemed to
confer on any of them any express, implied or apparent authority to incur any
obligation or liability on behalf of the others.
SECTION 7. OTHER ACTIVITIES OF ADMINISTRATOR. Nothing herein shall
prevent the Administrator or its Affiliates from engaging in other business
or, in its sole discretion, from acting in a similar capacity as an
administrator for any other Person or entity even though such person or
entity may engage in business activities similar to those of the Issuer, the
Owner Trustee or the Indenture Trustee.
SECTION 8. TERM OF AGREEMENT; RESIGNATION AND REMOVAL OF
ADMINISTRATOR. This Agreement shall continue in force until the dissolution
of the Issuer, upon which event this Agreement shall automatically terminate.
(a) Subject to Section 8(d) and Section 8(e), the Administrator may
resign its duties hereunder by providing the Issuer with at least
sixty (60) days' prior written notice.
(b) Subject to Section 8(d) and Section 8(e), the Issuer may remove
the Administrator without cause by providing the Administrator
with at least sixty (60) days' prior written notice.
(c) Subject to Section 8(d) and Section 8(e), at the sole option of
the Issuer, the Administrator may be removed immediately upon
written notice of termination from the Issuer to the
Administrator if any of the following events shall occur:
(i) the Administrator shall default in the performance of any of
its duties under this Agreement and, after notice of such
default, shall not cure such default within ten (10) days
(or, if such default cannot be cured in such time, shall not
give within ten (10) days such assurance of cure as shall be
reasonably satisfactory to the Issuer); or
(ii) an Insolvency Event shall occur with respect to the
Administrator.
The Administrator agrees that if any of the events specified in clause
(ii) above shall occur, it shall give written notice thereof to the Issuer
and the Indenture Trustee within seven (7) days after the occurrence of such
event.
(d) No resignation or removal of the Administrator pursuant to this
Section shall be effective until (i) a successor Administrator
shall have been appointed by the Issuer and (ii) such successor
Administrator shall have agreed in writing to be bound by the
terms of this Agreement in the same manner as the Administrator
is bound hereunder.
(e) The appointment of any successor Administrator shall be effective
only after the satisfaction of the Rating Agency Condition with
respect to the proposed appointment.
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(f) Subject to Section 8(d) and 8(e), the Administrator acknowledges
that upon the appointment of a Successor Servicer pursuant to the
Pooling and Servicing Agreement, the Administrator shall
immediately resign (subject to Section 8(d) hereof).
SECTION 9. ACTION UPON TERMINATION, RESIGNATION OR REMOVAL.
Promptly upon the effective date of termination of this Agreement pursuant to
Section 8 or the resignation or removal of the Administrator pursuant to
Section 8(a), (b) or (c) respectively, the Administrator shall be entitled to
be paid all fees and reimbursable expenses accruing to it to the date of such
termination, resignation or removal. The Administrator shall forthwith upon
such termination pursuant to Section 8 deliver to the Issuer all property and
documents of or relating to the Collateral then in the custody of the
Administrator. In the event of the resignation or removal of the
Administrator pursuant to Section (a), (b) or (c), respectively, the
Administrator shall cooperate with the Issuer and take all reasonable steps
requested to assist the Issuer in making an orderly transfer of the duties of
the Administrator.
SECTION 10. NOTICES. All notices, demands, certificates, requests
and communications hereunder ("notices") shall be in writing and shall be
effective (a) upon receipt when sent through the U.S. mails, registered or
certified mail, return receipt requested, postage prepaid, with such receipt
to be effective the date of delivery indicated on the return receipt, or (b)
one Business Day after delivery to an overnight courier, or (c) on the date
personally delivered to an Authorized Officer of the party to which sent, or
(d) on the date transmitted by legible telecopier transmission with a
confirmation of receipt, in all cases addressed to the recipient as follows:
(i) If to the Administrator:
Newcourt Financial USA Inc.
2700 Bank One Tower
000 Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxxx
Fax No.: (000) 000-0000
(ii) If to the Trust Depositor:
Newcourt Receivables Corporation II
2700 Bank One Tower
000 Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxxx
Fax No.: (000) 000-0000
(iii) If to the Indenture Trustee:
Xxxxxx Trust and Savings Bank
000 Xxxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxx
Fax No.: (000) 000-0000
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(iv) If to the Issuer or the Owner Trustee:
The Bank of New York (Delaware)
Xxxxx Xxxx Xxxxxx
Xxxxxx, Xxx Xxxxxx 0000
Attn: [ ]
Fax No.: [ ]
with a copy to:
The Bank of New York
Asset Backed Finance Xxxx
000 Xxxxxxx Xxxxxx, 00 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Laser
Fax No.: (000) 000-0000
Each party hereto may, by notice given in accordance herewith to each of the
other parties hereto, designate any further or different address to which
subsequent notices shall be sent.
SECTION 11. AMENDMENTS. This Agreement may be amended from time to
time by a written amendment duly executed and delivered by the parties
hereto, with the written consent of the Owner Trustee but without the consent
of the Noteholders and the Certificateholders, 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 Noteholders
or the Certificateholder; provided that such amendment will not, in the
Opinion of Counsel satisfactory to the Indenture Trustee, materially and
adversely affect the interest of any Noteholder or the Certificateholder.
This Agreement may also be amended by the parties hereto with the written
consent of the Owner Trustee and the Required Holders 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
Noteholders or the Certificateholders; PROVIDED, HOWEVER, that no such
amendment may (i) increase or reduce in any manner the amount of, or
accelerate or delay the timing of, collections of payments on the Contracts
or distributions that are required to be made for the benefit of the
Noteholders or the Certificateholder or (ii) reduce the aforesaid percentage
of the Holders of Notes and the Certificate which are required to consent to
any such amendment, without the consent of the Holders of all outstanding
Notes and the Certificate. Notwithstanding the foregoing, the Administrator
may not amend this Agreement without the permission of the Trust Depositor,
which permission shall not be unreasonably withheld. Promptly after the
execution of any amendment to this Agreement, the Administrator shall furnish
written notification of the substance of such amendment, together with a copy
thereof, to each Rating Agency.
SECTION 12. SUCCESSORS AND ASSIGNS. This Agreement may not be
assigned by the Administrator unless such assignment is previously consented
to in writing by the Issuer, the Indenture Trustee and the Owner Trustee and
subject to the satisfaction of the Rating Agency Condition in respect
thereof. An assignment with such consent and satisfaction, if accepted by
the assignee, shall bind the assignee hereunder in the same manner as the
Administrator is bound hereunder. Notwithstanding the foregoing, this
Agreement may be assigned by the Administrator without the consent of the
Issuer or the Owner Trustee to a corporation or other organization that is a
successor (by merger, consolidation or purchase of all or substantially all
assets) to the Administrator; provided that such successor organization
executes and delivers to the Issuer, the Owner Trustee and the Indenture
Trustee an agreement, in form and substance reasonably satisfactory to the
Owner Trustee and the Indenture Trustee, in which such corporation or other
organization agrees to be bound hereunder by the terms of said assignment in
the same manner as the Administrator is bound hereunder. Subject to the
foregoing, this Agreement shall bind any successors or assigns of the parties
hereto.
SECTION 13. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS,
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AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 14. HEADINGS. The section and subsection headings hereof
have been inserted for convenience of reference only and shall not be
construed to affect the meaning, construction or effect of this Agreement.
SECTION 15. COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be an original and all of which shall
constitute but one and the same agreement.
SECTION 16. SEVERABILITY. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof and any such prohibition or unenforceability in
any jurisdiction shall not invalidate or render unenforceable such provision
in any other jurisdiction.
SECTION 17. NOT APPLICABLE TO NEWCOURT USA IN OTHER CAPACITIES.
Nothing in this Agreement shall affect any obligation Newcourt USA may have
in any other capacity.
SECTION 18. LIMITATION OF LIABILITY OF OWNER TRUSTEE AND INDENTURE
TRUSTEE.
(a) Notwithstanding anything contained herein to the contrary, this
instrument has been countersigned by The Bank of New York (Delaware), not in
its individual capacity but solely in its capacity as Owner Trustee of the
Issuer and in no event shall The Bank of New York (Delaware) in its
individual capacity or any beneficial owner of the Issuer have any liability
for the representations, warranties, covenants, agreements or other
obligations of the Issuer hereunder, as to all of which recourse shall be had
solely to the assets of the Issuer. For all purposes of this Agreement, in
the performance of any duties or obligations of the Issuer hereunder, the
Owner Trustee shall be subject to, and entitled to the benefits of, the terms
and provisions of Articles Six, Seven and Eight of the Trust Agreement.
(b) Notwithstanding anything contained herein to the contrary, this
Agreement has been countersigned by Xxxxxx Trust and Savings Bank not in its
individual capacity but solely as Indenture Trustee and in no event shall
Xxxxxx Trust and Savings Bank have any liability for the representations,
warranties, covenants, agreements or other obligations of the Issuer
hereunder or in any of the certificates, notices or agreements delivered
pursuant hereto, as to all of which recourse shall be had solely to the
assets of the Issuer.
SECTION 19. THIRD-PARTY BENEFICIARY. The Owner Trustee is a
third-party beneficiary to this Agreement and is entitled to the rights and
benefits hereunder and may enforce the provisions hereof as if it were a
party hereto.
SECTION 20. SURVIVABILITY. The obligations of the Administrator
described in Section 1(a)(ii) hereof shall survive termination of this
Agreement.
[signature page follows]
9
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the day and year first above written.
NEWCOURT EQUIPMENT TRUST SECURITIES 1998-1
By: The Bank of New York (Delaware), not in its
individual capacity but solely as Owner Trustee
By:
--------------------------------------
Printed Name:
-----------------------
Title:
------------------------------
NEWCOURT RECEIVABLES CORPORATION II,
as Trust Depositor
By:
--------------------------------------
Printed Name:
-----------------------
Title:
------------------------------
By:
--------------------------------------
Printed Name:
-----------------------
Title:
------------------------------
XXXXXX TRUST AND SAVINGS BANK,
not in its individual capacity but solely as Indenture
Trustee
By:
--------------------------------------
Printed Name:
-----------------------
Title:
------------------------------
NEWCOURT FINANCIAL USA INC., as Administrator
By:
--------------------------------------
Printed Name:
-----------------------
Title:
------------------------------
By:
--------------------------------------
Printed Name:
-----------------------
Title:
------------------------------
10
EXHIBIT A
LIMITED POWER OF ATTORNEY
State of ______________)
) SS.
County of _____________)
KNOW ALL PERSONS BY THESE PRESENTS, that The Bank of New York
(Delaware), a Delaware banking corporation (the "OWNER TRUSTEE"), by and
through its duly elected and authorized officer, ________________________, a
___________________, on behalf of itself and of Newcourt Equipment Trust
Securities 1998-1 (the "TRUST") as Issuer under the Administration Agreement,
dated as of October [ ], 1998 (the "ADMINISTRATION AGREEMENT"), among the
Trust, Newcourt Receivables Corporation II, Xxxxxx Trust and Savings Bank, as
Indenture Trustee, and Newcourt Financial USA Inc., as Administrator, does
hereby nominate, constitute and appoint Newcourt Financial USA Inc., a
Delaware corporation, each of its officers from time to time and each of its
employees authorized by it from time to time to act hereunder, jointly and
each of them severally, together or acting alone, its true and lawful
attorney-in-fact, for the Owner Trustee and the Issuer in their name, place
and xxxxx, in the sole discretion of such attorney-in-fact, to perform such
calculations and prepare or cause the preparation by other appropriate
persons of, and to execute on behalf of the Issuer or the Owner Trustee, all
such documents, reports, filings, instruments, certificates and opinions that
the Issuer or the Owner Trustee is required to prepare, file or deliver
pursuant to the Administration Agreement, and to take any and all other
action, as such attorney-in-fact may deem necessary or desirable in
accordance with the directions of the Owner Trustee and in connection with
its duties as Administrator or successor Administrator under the
Administration Agreement. Capitalized terms used herein that are not
otherwise defined shall have the meanings ascribed thereto in the
Administration Agreement.
The Owner Trustee hereby ratifies and confirms the execution, delivery
and performance (whether before or after the date hereof) of the
above-mentioned documents, reports, filings, instruments, certificates and
opinions, by the attorney-in-fact and all that the attorney-in-fact shall
lawfully do or cause to be done by virtue hereof.
The Owner Trustee hereby agrees that no person or other entity dealing
with the attorney-in-fact shall be bound to inquire into such
attorney-in-fact's power and authority hereunder and any such person or
entity shall be fully protected in relying on such power of authority.
This Limited Power of Attorney may not be assigned without the prior
written consent of the Owner Trustee. It is effective immediately and will
continue until it is revoked.
This Limited Power of Attorney shall be governed and construed in
accordance with the laws of the State of New York without reference to
principles of conflicts of law.
Executed as of this ____ day of ______________, 1998.
THE BANK OF NEW YORK (DELAWARE),
not in its individual capacity but solely as
Owner Trustee
By:
--------------------------------------
Printed Name:
-----------------------
Title:
------------------------------
CERTIFICATE OF ACKNOWLEDGMENT OF
NOTARY PUBLIC
State of )
) SS.
County of )
On_______________, 1998 before me, _______________________________________
[insert date] [Here insert name and title of notary]
personally appeared ___________________________________________
/ / personally known to me, or
/ / proved to me on the basis of satisfactory evidence to be the person(s)
whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ties), and that by
his/her/their signature(s) on the instrument the person(s), or the entity
upon behalf of which person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature __________________________________________________ [SEAL]
