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EXHIBIT 10.2
ADMINISTRATION AGREEMENT
AMONG
ORIX CREDIT ALLIANCE RECEIVABLES TRUST 1999-A,
AS ISSUER,
ORIX CREDIT ALLIANCE, INC.,
AS ADMINISTRATOR
ORIX CREDIT ALLIANCE RECEIVABLES CORPORATION II,
AS TRUST DEPOSITOR,
AND
XXXXXX TRUST AND SAVINGS BANK,
AS INDENTURE TRUSTEE
DATED AS OF NOVEMBER , 1999
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TABLE OF CONTENTS
SECTION 1. DUTIES OF THE ADMINISTRATOR........................................2
SECTION 2. RECORDS............................................................8
SECTION 3. COMPENSATION.......................................................8
SECTION 4. ADDITIONAL INFORMATION TO BE FURNISHED TO THE ISSUER...............8
SECTION 5. INDEPENDENCE OF THE ADMINISTRATOR..................................9
SECTION 6. NO JOINT VENTURE...................................................9
SECTION 7. OTHER ACTIVITIES OF ADMINISTRATOR..................................9
SECTION 8. TERM OF AGREEMENT; RESIGNATION AND REMOVAL OF ADMINISTRATOR........9
SECTION 9. ACTION UPON TERMINATION, RESIGNATION OR REMOVAL...................11
SECTION 10. NOTICES..........................................................11
SECTION 11. AMENDMENTS.......................................................12
SECTION 12. SUCCESSORS AND ASSIGNS...........................................13
SECTION 13. GOVERNING LAW, JURY WAIVER AND NO PETITION.......................13
SECTION 14. HEADINGS.........................................................13
SECTION 15. COUNTERPARTS.....................................................14
SECTION 16. SEVERABILITY.....................................................14
SECTION 17. NOT APPLICABLE TO OCAI IN OTHER CAPACITIES.......................14
SECTION 18. LIMITATION OF LIABILITY OF OWNER TRUSTEE AND INDENTURE TRUSTEE...14
SECTION 19. THIRD-PARTY BENEFICIARY..........................................14
SECTION 20. SURVIVABILITY....................................................14
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This ADMINISTRATION AGREEMENT, dated as of November , 1999,
is among ORIX CREDIT ALLIANCE RECEIVABLES TRUST 1999-A (the "Issuer"), ORIX
CREDIT ALLIANCE, INC. ( together with its successors and assigns "OCAI") in its
capacity as administrator (the "Administrator"), ORIX CREDIT ALLIANCE
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, Class A-2 Receivable-Backed Notes, Class A-3
Receivable-Backed Notes, Class A-4 Receivable-Backed Notes, Class B
Receivable-Backed Notes, and Class C Receivable-Backed Notes (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 Transfer and Servicing Agreement as defined herein or 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 Transfer and Servicing Agreement, dated
as of the date hereof (the "Transfer and Servicing Agreement"), among the
Issuer, the Indenture Trustee, the Trust Depositor, and OCAI, as Originator and
Servicer thereunder, and (ii) the Indenture, and (iii) the other Transaction
Documents;
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 Certificates
(the registered holders of such interests being referred to herein as the
"Owners");
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;
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NOW, THEREAFTER, 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 INDENTURE.
(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 Indenture. 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
Indenture. 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 Indenture. 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);
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(E) the maintenance of an office in Chicago,
Illinois, 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
Transfer 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);
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(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);
(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 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);
(T) 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);
(U) 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);
(V) the execution and delivery of new Notes
conforming to any supplemental indenture (Section 9.06);
(W) the duty to notify Noteholders of
redemption of the Notes or to cause the Indenture Trustee to
provide such notification (Section 10.02);
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(X) 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));
(Y) 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));
(Z) the notification of the Rating Agencies,
upon the failure of the Issuer, the Owner Trustee or the
Indenture Trustee to provide notification as required under
the Transaction Documents;
(AA) 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
(BB) the recording of the Indenture, if
applicable (Section 11.14).
(ii) The Administrator will, except as paid
pursuant to or otherwise expressly provided in the Indenture
or the Transfer and Servicing Agreement:
(A) 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 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
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 Transaction Documents, 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 Transaction Documents;
and
(C) pay the Owner Trustee's fees and
reimburse the Owner Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or
made by the Owner Trustee in accordance with the
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Transaction Documents and indemnify the Owner Trustee and its
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, 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), 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 is required to prepare, file
or deliver pursuant to the Transaction Documents or under
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 is required to take pursuant to
the Transaction Documents. In furtherance thereof, the Owner
Trustee shall, on behalf 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
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 an Owner
as contemplated in Section 5.02(c) of the Trust Agreement. Any
such notice shall specify the amount of any withholding
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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 Owners; provided,
however, that the Owner Trustee shall retain responsibility
for the distribution of information forms necessary to enable
each Owner to prepare its federal and state income tax
returns.
(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 Sections 6.02,
9.01(d) and 10.02 of the Trust Agreement required to be
performed in connection with the filing of claims, the
termination of the Trust and 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:
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(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 otherwise than pursuant to Section 1(a)(i)(O) above
and 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 Indenture Trustee, 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 which shall be solely an obligation of the Servicer as contemplated in
Section 5.19 of the Transfer 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.
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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 termination 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 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 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 days
(or, if such default cannot be cured in such
time, shall not give
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within ten days such assurance of cure as
shall be reasonably satisfactory to the
Issuer);
(ii) a court having jurisdiction in the premises
shall enter a decree or order for relief,
and such decree or order shall not have been
vacated within 60 days, in respect of the
Administrator in any involuntary case under
any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect
or appoint a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar
official for the Administrator or any
substantial part of its property or order
the winding-up or liquidation of its
affairs; or
(iii) the Administrator shall commence a voluntary
case under any applicable bankruptcy,
insolvency or other similar law now or
hereafter in effect, shall consent to the
entry of an order for relief in an
involuntary case under any such law, or
shall consent to the appointment of a
receiver, liquidator, assignee, trustee,
custodian, sequestrator or similar official
for the Administrator or any substantial
part of its property, shall consent to the
taking of possession by any such official of
any substantial part of its property, shall
make any general assignment for the benefit
of creditors or shall fail generally to pay
its debts as they become due.
The Administrator agrees that if any of the events specified
in clauses (ii) or (iii) above shall occur, it shall give written notice thereof
to the Issuer and the Indenture Trustee within seven 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 Adminis trator
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.
(f) Subject to Section 8(d) and 8(e), the Administrator
acknowledges that upon the appointment of a Successor
Servicer pursuant to the
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Transfer 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), (c) or (f) 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), (c) or (f), 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:
ORIX Credit Alliance, Inc.
000 Xxxxxxxx Xxx
Xxxxxxxx, Xxx Xxxxxx 00000-0000
Attention: Chief Financial Officer/Asset
Securitizations
Fax No.: (000) 000-0000
(ii) If to the Trust Depositor:
ORIX Credit Alliance Receivables Corporation
II
000 Xxxxxxxx Xxx
Xxxxxxxx, Xxx Xxxxxx 00000-0000
Attention: President/Asset Securitizations
Fax No.: (000) 000-0000
(iii) If to the Indenture Trustee:
Xxxxxx Trust and Savings Bank
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000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Indenture Trust Administration
Fax No.: (000) 000-0000
(iv) If to the Issuer or the Owner Trustee:
The Bank of New York (Delaware)
000 Xxxxx Xxxx Xxxxxx
X.X. Xxx 0000
Xxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Administration
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
Certificateholders; 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 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 Certificateholders or (ii) reduce the aforesaid
percentage of the holders of Notes and Certificates which are required to
consent to any such amendment, without the consent of the Issuer and the holders
of all outstanding Notes and Certificates. Notwithstanding the foregoing, the
Administrator may not amend this Agreement without the permission of the Trust
Depositor, which permission shall not be unreasonably withheld.
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
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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, the Indenture Trustee or the
Owner Trustee to a corporation or other organization that is a successor (by
merger, consolidation or purchase of 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 Issuer, 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, JURY WAIVER AND NO PETITION. (a)
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS;
(b) EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT
OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION
WITH THIS AGREEMENT. Each party hereto (i) certifies that no representative,
agent or attorney of any other party has represented, expressly or otherwise,
that such other party would not, in the event of litigation, seek to enforce the
foregoing waiver and (ii) acknowledges that it and the other parties hereto have
been induced to enter into this Agreement by, among other things, the mutual
waivers and certifications in this Section 13(b); and
(c) Each of the Administrator and the Indenture Trustee
covenants and agrees that, prior to the date that is one year and one day after
the payment in full of all amounts owing in respect of all outstanding Notes, it
will not institute against the Trust Depositor or the Trust, or join any other
Person in instituting against the Trust Depositor or the Trust, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings or other
similar proceedings under the laws of the United States or any state of the
United States provided however, that nothing herein shall prohibit the Indenture
Trustee from filing proofs of claim or otherwise participating in any such
proceedings instituted by any other person. This Section 13(c) will survive the
termination of this Agreement.
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 by
facsimile signature and in several counterparts, each of which shall be an
original and all of which shall constitute but one and the same agreement.
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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 OCAI IN OTHER CAPACITIES.
Nothing in this Agreement shall affect any obligation OCAI 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.
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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.
ORIX CREDIT ALLIANCE RECEIVABLES
TRUST 1999-A
By: The Bank of New York (Delaware), not in its
individual capacity but solely as Owner Trustee
By:
Printed Name:
Title:
ORIX CREDIT ALLIANCE RECEIVABLES
CORPORATION II, as Trust Depositor
By:
Printed Name:
Title:
XXXXXX TRUST AND SAVINGS BANK, not in
its individual capacity but solely as Indenture
Trustee
By:
Printed Name:
Title:
ORIX CREDIT ALLIANCE, INC., as
Administrator
By:
Printed Name:
Title:
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EXHIBIT A
LIMITED POWER OF ATTORNEY
State of New York )
) SS.
County of New York )
KNOW ALL PERSONS BY THESE PRESENTS, that The Bank of New York
(Delaware), a Delaware state chartered bank (the "Owner Trustee"), by and
through its duly elected and authorized officer, _____________________, a
___________________, on behalf of ORIX Credit Alliance Receivables Trust 1999-A
(the "Trust") as Issuer under the Administration Agreement, dated as of November
, 1999 (the "Administration Agreement"), among the Trust, ORIX Credit Alliance
Receivables Corporation II, Xxxxxx Trust and Savings Bank, as Indenture Trustee,
and ORIX Credit Alliance, Inc., as Administrator, does hereby nominate,
constitute and appoint ORIX Credit Alliance, Inc., a New York 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 Issuer in their
name, place and stead, 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, 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.
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This Limited Power of Attorney shall be governed and construed
in accordance with the laws of the State of Delaware.
Executed as of this day of November, 1999.
THE BANK OF NEW YORK (DELAWARE),
not in its individual capacity but
solely as Owner Trustee,
By:
Printed Name:
Title:
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CERTIFICATE OF ACKNOWLEDGMENT OF
NOTARY PUBLIC
State of New York )
) SS.
County of New York )
On November , 1999 before me, __________________________________________
{insert date} ________________
{ } 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}
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