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EXHIBIT 10.4
CUSTODIAN AGREEMENT
AMONG
ORIX CREDIT ALLIANCE, INC.,
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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CUSTODIAN AGREEMENT
Custodian Agreement, dated as of November , 1999 among ORIX
CREDIT ALLIANCE, INC., a New York corporation ("OCAI"), ORIX CREDIT ALLIANCE
RECEIVABLES CORPORATION II, a Delaware corporation (the "Trust Depositor") and
XXXXXX TRUST AND SAVINGS BANK, as Indenture Trustee (the "Indenture Trustee").
WHEREAS, OCAI and the Trust Depositor have entered into a
Transfer Agreement, dated as of October , 1999 (the "OCAI Transfer Agreement")
and OCAI, the Trust Depositor, the Indenture Trustee and ORIX Credit Alliance
Receivables Trust 1999-A (the "Issuer") have entered into a Transfer and
Servicing Agreement, dated as of October , 1999 (the "Agreement", the
capitalized terms defined therein being used herein with the same meaning as set
forth therein or in the Indenture); and
WHEREAS, pursuant to the OCAI Transfer Agreement, OCAI shall
sell, transfer and assign to the Trust Depositor without recourse all of OCAI's
right, title and interest in and to the Contracts and related security
interests, and pursuant to the Agreement, the Trust Depositor shall
simultaneously sell, transfer and assign its right, title and interest in and to
the Contracts and related security interests to the Issuer; and
WHEREAS, simultaneously with the purchase of the Contracts by
the Issuer, the Issuer is assigning the Contracts to and granting a security
interest in and a lien upon the Contracts and related security interests in
favor of the Indenture Trustee under the terms of the Indenture; and
WHEREAS, in connection with such sales and the assignments,
the Agreement provides that the Indenture Trustee shall hold the Contract Files
directly or through a Custodian acting as agent of the Indenture Trustee under
the Custodian Agreement;
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. APPOINTMENT AS CUSTODIAN; ACKNOWLEDGMENT OF RECEIPT.
Subject to the terms and conditions hereof, the Indenture Trustee hereby
revocably appoints OCAI, and OCAI hereby accepts such appointment, to act as
agent of the Indenture Trustee as Custodian (the "Custodian")to maintain custody
of the Contract Files relating to the Contracts. In performing its duties
hereunder, the Custodian agrees to act with reasonable
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care, using that degree of skill and attention that the Custodian exercises with
respect to the contract files relating to all comparable equipment contracts
that the Custodian services for itself or others. The Custodian hereby
acknowledges receipt of the Contract File for each Contract listed in the
Schedule of Contracts.
2. MAINTENANCE AT OFFICE. The Custodian agrees to maintain
each Contract File at its offices as shall be specified to the Trust Depositor,
the Issuer and the Indenture Trustee. The Custodian shall make available to the
Trust Depositor, the Issuer and the Indenture Trustee or their respective duly
authorized representatives, attorneys or auditors a list of locations of the
Contract Files and the related accounts, records and computer systems maintained
by the Custodian at such times as the Trust Depositor, the Issuer or the
Indenture Trustee shall instruct.
3. DUTIES OF CUSTODIAN.
(a) SAFEKEEPING. The Custodian shall hold the Contract Files
on behalf of the Indenture Trustee and shall maintain such accurate and complete
accounts, records and computer systems pertaining to each Contract File as will
comply with the terms and conditions of the Agreement. The Custodian shall at
all times maintain the original of each fully executed Contract and store such
original Contract in a fireproof vault. Within 60 days of the Closing Date (or
Subsequent Transfer Date, as the case may be), the Custodian shall deliver an
Officer's Certificate to the Owner Trustee and the Indenture Trustee certifying
that as of a date no earlier than the Closing Date (or Subsequent Transfer Date,
as the case may be) it has conducted an inventory of the Contract Files (which
in the case of Substitute Contracts, need be only of the Contract Files related
to such Substitute Contracts) and that there exists a Contract File for each
Contract and stating all exceptions to such statement, if any. The Custodian
shall conduct, or cause to be conducted, periodic (at least annually) physical
inspections of the Contract Files held by it under this Custodian Agreement, and
of the related accounts, records and computer systems, in such a manner as shall
enable the Trust Depositor and the Indenture Trustee to verify the accuracy of
the Custodian's inventory and record keeping. The Custodian shall promptly
report to the Trust Depositor, the Issuer, and the Indenture Trustee any failure
on its part to hold the Contract Files and maintain its accounts, records and
computer systems as herein provided and promptly take appropriate action to
remedy any such failure.
(b) ACCESS TO RECORDS. Subject only to the Custodian's
security requirements applicable to its own employees having access to similar
records held by the Custodian, the Custodian shall permit the Indenture Trustee
or its duly authorized representatives, attorneys or auditors to inspect the
Contract Files and the related accounts, records and computer systems maintained
by the Custodian pursuant hereto at such times as the Indenture Trustee may
reasonably request. The Custodian shall
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implement or maintain policies and procedures in writing and signed by a
Servicing Officer with respect to persons authorized to have access to the
Contract Files on the Custodian's premises and with respect to the receipting
for Contract Files taken from their storage area by an employee of the Custodian
for purposes of servicing or any other purposes.
(c) RELEASE OF DOCUMENTS. Upon instruction from the Indenture
Trustee, the Custodian shall release any Contract File to the Indenture Trustee,
the Indenture Trustee's agent, or the Indenture Trustee's designee, as the case
may be, at such place or places as the Indenture Trustee may designate, as soon
as practicable and upon the release and delivery of any such document in
accordance with the instructions of the Indenture Trustee, the Custodian shall
be released from any further liability and responsibilities under this Custodian
Agreement with respect to such documents unless and until such time as such
document may be returned to the Custodian.
(d) ADMINISTRATION; REPORTS. In general, the Custodian shall
attend to all non-discretionary details in connection with maintaining custody
of the Contract Files on behalf of the Indenture Trustee. In addition, the
Custodian shall assist the Indenture Trustee generally in the preparation of
routine reports to regulatory bodies, to the extent necessitated by the
Custodian's custody of the Contract Files.
(e) MAINTAINING THE ISSUER'S PERFECTED SECURITY INTEREST. The
Custodian will take all action necessary to maintain the perfection of the
Issuer's interest in the Contracts and the proceeds thereof. For all purposes of
Article Four of the Agreement, the Trustees shall be deemed to have possession
of the Contract Files for purposes of Section 9-305 of the Uniform Commercial
Code of the State in which the Contract Files are located.
4. INSTRUCTIONS; AUTHORITY TO ACT. The Custodian shall be deemed
to have received proper instructions with respect to the Contract Files upon its
receipt of written instructions signed by a Responsible Officer of the Indenture
Trustee. A certified copy of a bylaw or of a resolution of the Board of
Directors of the Indenture Trustee may be received and accepted by the Custodian
as conclusive evidence of the authority of any such officer to act and may be
considered as in full force and effect until receipt of written notice to the
contrary by the Indenture Trustee. Such instructions may be general or specific
in terms.
5. INDEMNIFICATION BY THE CUSTODIAN. The Custodian agrees to
indemnify the Trust Depositor, the Issuer and the Indenture Trustee and its
officers, directors, agents and employees for any and all liabilities,
obligations, losses, damages, payments, costs or expenses of any kind
whatsoever, including, without limitation, fees and expenses of counsel, that
may be imposed on, incurred by or asserted against the Trust Depositor, the
Issuer and the
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Indenture Trustee as the result of any act or omission in any way relating to
the maintenance and custody by the Custodian of the Contract Files; provided,
however, that the Custodian shall not be liable to the Trust Depositor, the
Issuer or the Indenture Trustee for any portion of any such amount resulting
from the willful misfeasance, bad faith or negligence of the Trust Depositor,
the Issuer or the Indenture Trustee. This Section 5 shall survive the
termination of this Custodian Agreement and the earlier removal or resignation
of the Indenture Trustee.
6. ADVICE OF COUNSEL. The Custodian, the Trust Depositor and the
Indenture Trustee further agree that the Custodian shall be entitled to rely and
act upon advice of counsel with respect to its performance hereunder and shall
be without liability for any action reasonably taken pursuant to such advice,
provided that such action is not in violation of applicable federal or state
law.
7. EFFECTIVE PERIOD, TERMINATION AND AMENDMENT AND INTERPRETIVE
AND ADDITIONAL PROVISIONS. This Custodian Agreement shall become effective as of
the Cutoff Date and shall continue in full force and effect until terminated
pursuant to this Section. If OCAI shall resign as Servicer in accordance with
the provisions of the Agreement or if all of the rights and obligations of any
Servicer shall have been terminated under Article Eight of the Agreement, the
appointment of OCAI as custodian shall be terminated by the Indenture Trustee or
by the Holders of Notes in the same manner as the Indenture Trustee or such
Holders may terminate the rights and obligations of the Servicer under Article
Eight of the Agreement. The Indenture Trustee may terminate OCAI's appointment
as custodian, with cause, at any time upon written notification to OCAI, and
without cause upon 30 days' prior written notification to OCAI and the Rating
Agencies. As soon as practicable after any termination of such appointment,
OCAI shall deliver the Contract Files to the Indenture Trustee or the Indenture
Trustee's agent at such place or places as the Indenture Trustee may reasonably
designate. If OCAI shall be terminated as custodian hereunder for any reason
but shall continue to serve as Servicer, the Indenture Trustee shall, or shall
cause its agent to, make the Contract Files available to OCAI during normal
business hours upon reasonable notice so as to permit OCAI to perform its
obligations as Servicer hereunder.
8. GOVERNING LAW. This Custodian Agreement shall be governed by,
and construed in accordance with, the laws of the State of New York.
9. 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 the Custodian, 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 Indenture Trustee, at the following
address: Xxxxxx Trust and Savings Bank, 000 Xxxx Xxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxx 00000, Attn: Indenture Trust Administration, Fax Number: 000-000-0000,
and (c) in the case of the Trust
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Depositor, at the following address: ORIX Credit Alliance Receivables
Corporation II, 000 Xxxxxxxx Xxx, Xxxxxxxx, Xxx Xxxxxx 00000, Attn: President,
or at such other address as shall be designated by such party in a written
notice to the other party.
10. BINDING EFFECT. This Custodian Agreement shall be binding
upon and shall inure to the benefit of the Trust Depositor, the Indenture
Trustee, the Custodian and their respective successors and assigns.
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Custodian 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.,
as Custodian
By:
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Name:
Title:
XXXXXX TRUST AND SAVINGS BANK, not in
its individual capacity but solely as Indenture
Trustee,
By:
-----------------------------------------
Name:
Title:
ORIX CREDIT ALLIANCE RECEIVABLES
CORPORATION II
By:
-----------------------------------------
Name:
Title:
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