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EXHIBIT 10.3
OCAI TRANSFER AGREEMENT
BETWEEN
ORIX CREDIT ALLIANCE, INC., AS ORIGINATOR
AND
ORIX CREDIT ALLIANCE RECEIVABLES CORPORATION II, AS TRUST
DEPOSITOR
DATED AS OF NOVEMBER , 1999
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TABLE OF CONTENTS
Page
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ARTICLE ONE
DEFINITIONS
Section 1.01. Definitions.....................................................1
Section 1.02. Usage of Terms..................................................1
Section 1.03. Section References..............................................2
Section 1.04. Calculations....................................................2
Section 1.05. Accounting Terms................................................2
ARTICLE TWO
TRANSFER OF CONTRACT ASSETS
Section 2.01. Transfer of Contract Assets.....................................2
Section 2.02. Conditions to Transfer of Contract Assets to the Trust
Depositor.......................................................4
Section 2.03. Acceptance by the Trust Depositor...............................6
Section 2.04. Conveyance of Substitute Contracts..............................6
Section 2.05. Delivery of Instruments.........................................7
ARTICLE THREE
REPRESENTATIONS AND WARRANTIES
Section 3.01. Representations and Warranties Regarding the Originator.........8
Section 3.02. Representations and Warranties Regarding Each Contract
and as to Certain Contracts in the Aggregate...............12
Section 3.03. Representations and Warranties Regarding the Initial
Contracts in the Aggregate.................................13
Section 3.04. Representations and Warranties Regarding the Contract Files....13
Section 3.05. Representations and Warranties Regarding Concentrations
of Initial Contracts.......................................13
Section 3.06. Representations and Warranties Regarding the Trust Depositor...13
ARTICLE FOUR
PERFECTION OF TRANSFER AND
PROTECTION OF SECURITY INTERESTS
Section 4.01. Custody of Contracts...........................................16
Section 4.02. Filing.........................................................16
Section 4.03. Name Change or Relocation......................................16
Section 4.04. Chief Executive Office.........................................16
Section 4.05. Costs and Expenses.............................................17
Section 4.06. Sale Treatment.................................................17
Section 4.07. Separateness from Trust Depositor..............................17
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ARTICLE FIVE
COVENANTS OF THE ORIGINATOR
Section 5.01. Corporate Existence............................................17
Section 5.02. Contracts Not to Be Evidenced by Promissory Notes..............17
Section 5.03. Security Interests.............................................18
Section 5.04. Compliance with Law............................................18
Section 5.05. Liability of Originator; Indemnities...........................18
Section 5.06. Limitation on Liability of Originator and Others...............19
Section 5.07. Chief Executive Office.........................................19
ARTICLE SIX
REMEDIES UPON MISREPRESENTATION;
REPURCHASE OPTION
Section 6.01. Repurchases of, or Substitution for, Contracts for Breach of
Representations and Warranties.............................19
Section 6.02. Reassignment of Repurchased or Substituted Contracts...........20
Section 6.03. Originator's Repurchase Option.................................20
ARTICLE SEVEN
ORIGINATOR INDEMNITIES
Section 7.01. Originator's Indemnification...................................21
Section 7.02. Liabilities to Obligors........................................21
Section 7.03. Tax Indemnification............................................22
Section 7.04. Adjustments....................................................22
Section 7.05. Operation of Indemnities.......................................23
ARTICLE EIGHT
MISCELLANEOUS
Section 8.01. Amendment......................................................23
Section 8.02. Governing Law..................................................24
Section 8.03. Notices........................................................25
Section 8.04. Severability of Provisions.....................................27
Section 8.05. Third Party Beneficiaries......................................27
Section 8.06. Counterparts...................................................27
Section 8.07. Headings.......................................................27
Section 8.08. No Bankruptcy Petition; Disclaimer.............................27
Section 8.09. Jurisdiction...................................................28
Section 8.10. Prohibited Transactions with Respect to the Trust..............28
Section 8.11. Merger or Consolidation of Originator..........................28
Section 8.12. Assignment or Delegation by the Originator.....................29
EXHIBITS
EXHIBIT A Form of Assignment............................................A-1
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This OCAI TRANSFER AGREEMENT, dated as of November , 1999,
is between ORIX CREDIT ALLIANCE, INC. (together with its successors and assigns,
"OCAI", and in its capacity as originator, together with its successor and
assigns, the "Originator") and ORIX CREDIT ALLIANCE RECEIVABLES CORPORATION II
(together with its successor and assigns, the "Trust Depositor") (the
"Agreement").
WHEREAS, in the regular course of its business, the Originator
originates and purchases Contracts (as defined in the Transfer and Servicing
Agreement);
WHEREAS, the Trust Depositor desires to acquire the Initial
Contracts from the Originator and may acquire from time to time thereafter
certain Substitute Contracts (such Initial Contracts and Substitute Contracts,
together with certain related property as more fully described in the Transfer
and Servicing Agreement, being the Contract Assets as defined herein);
WHEREAS, it is a condition to the Trust Depositor's
acquisition of the Initial Contracts from the Originator that the Originator
make certain representations and warranties regarding the Contract Assets for
the benefit of the Trust Depositor;
WHEREAS, the Trust Depositor is willing to purchase and accept
assignment of the Contract Assets from the Originator pursuant to the terms
hereof; and
WHEREAS, on the Closing Date, the Trust Depositor will sell,
convey and assign all its right, title and interest in the Contract Assets to
ORIX Credit Alliance Receivables Trust 1999-A, a Delaware business trust (the
"Trust") pursuant to a Transfer and Servicing Agreement, dated as of the date
hereof (the "Transfer and Servicing Agreement") among the Originator, the Trust
Depositor, the Trust and LaSalle Bank National Association.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained, the parties hereto agree as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.01. DEFINITIONS. Whenever capitalized terms are used
but not defined in this Agreement, such terms shall have the meanings attributed
to such terms in the Transfer and Servicing Agreement, unless the context
otherwise requires.
SECTION 1.02. USAGE OF TERMS. With respect to all terms in
this Agreement, the singular includes the plural and the plural the singular;
words importing any
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gender include the other genders; references to "writing" include printing,
typing, lithography and other means of reproducing words in a visible form;
references to agreements and other contractual instruments include all
amendments, modifications and supplements thereto or any changes therein entered
into in accordance with their respective terms and not prohibited by this
Agreement; references to Persons include their permitted successors and assigns;
and the term "including" means "including without limitation."
SECTION 1.03. SECTION REFERENCES. All section references,
unless otherwise indicated, shall be to Sections in this Agreement.
SECTION 1.04. CALCULATIONS. Except as otherwise provided
herein, all interest rate and basis point calculations hereunder will be made on
the basis of a 360-day year and twelve 30-day months and will be carried out to
at least three decimal places.
SECTION 1.05. ACCOUNTING TERMS. All accounting terms used but
not specifically defined herein shall be construed in accordance with generally
accepted accounting principles in the United States.
ARTICLE TWO
TRANSFER OF CONTRACT ASSETS
SECTION 2.01. TRANSFER OF CONTRACT ASSETS. (a) The Originator
shall sell, assign and convey assets to the Trust Depositor pursuant to the
terms and provisions hereof.
(b) Subject to and upon the terms and conditions set forth
herein, the Originator hereby sells, transfers, assigns, sets over and otherwise
conveys to the Trust Depositor, for a purchase price of $ in cash, all the
right, title and interest of the Originator in and to (items (i) - (vi) below,
being collectively referred to herein as the "Contract Assets"):
(i) the Initial Contracts, and all monies received in
payment of such Contracts on and after the Initial Cutoff Date, any
Prepayment Amounts, any payments in respect of a casualty or early
termination, and any Recoveries received with respect thereto, but
excluding any Excluded Amounts;
(ii) the Equipment related to such Contracts,
including the related security interest granted by the Obligor under
such Contracts and all proceeds from any sale or other disposition of
such Equipment (but subject to the exclusion and release herein of
Excluded Amounts);
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(iii) the Contract Files;
(iv) all payments made or to be made in the future
with respect to such Contracts or the Obligor thereunder under any
Vendor Assignments and under any guarantee or similar credit
enhancement with respect to such Contracts;
(v) all Insurance Proceeds with respect to each such
Contract; and
(vi) all income from and proceeds of the foregoing.
In addition to the Contract Assets, the Originator hereby sells, transfers,
assigns, sets over and otherwise conveys to the Trust Depositor the remittances,
deposits and payments to be made by the Originator pursuant to the Transfer and
Sale Agreement into the Trust Accounts from time to time, amounts in the Trust
Accounts from time to time (and any investments of such amounts) and all
proceeds and products of the foregoing, which together with the Contract Assets
will constitute the corpus of the Trust and are referred to as the "Trust
Assets").
(c) The Originator and the Trust Depositor acknowledge that
the representations and warranties of the Originator in Section 3.01, 3.02,
3.03, 3.04 and 3.05 will run to and be for the benefit of the Trust and the
Trustees and the Trust and the Trustees may enforce directly without joinder of
the Trust Depositor, the repurchase obligations of the Originator with respect
to breaches of such representations and warranties as set forth herein and in
Section 5.01.
(d) The sale, transfer, assignment, set-over and conveyance of
the Trust Assets by the Originator to the Trust Depositor pursuant to this
Agreement does not constitute and is not intended to result in a creation or an
assumption by the Trust Depositor of any obligation of the Originator in
connection with the Contract Assets, or any agreement or instrument relating
thereto, including, without limitation, any obligation to any Obligor or
End-User, if any, not financed by the Originator, or (1) any taxes, fees, or
other charges imposed by any Governmental Authority and (2) any insurance
premiums which remain owing with respect to any Contract at the time such
Contract is sold hereunder.
(e) The Originator and Trust Depositor intend and agree that
(i) the transfer of the Contract Assets and Trust Assets from the Originator to
the Trust Depositor and the transfer of the Contract Assets and the Trust Assets
from the Trust Depositor to the Trust are intended to be a sale, conveyance and
transfer of ownership of the Contract Assets and Trust Assets, as the case may
be, rather than the mere granting of a security interest to secure a borrowing
and (ii) such Contract Assets and Trust Assets shall not be part of
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the Originator's or the Trust Depositor's estate in the event of a filing of a
bankruptcy petition or other action by or against such Person under any
Insolvency Law. In the event, however, that notwithstanding such intent and
agreement, such transfers are deemed to be of a mere security interest to secure
indebtedness, the Originator shall be deemed to have granted the Trust Depositor
and the Trust Depositor shall be deemed to have granted the Trust, as the case
may be, a perfected first priority security interest in such Contract Assets or
Trust Assets respectively and this Agreement shall constitute a security
agreement under applicable law, securing the repayment of the purchase price
paid hereunder and the obligations and/or interests represented by the
Securities, in the order and priorities, and subject to the other terms and
conditions of, this Agreement, the Transfer and Servicing Agreement, the
Indenture and the Trust Agreement, together with such other obligations or
interests as may arise hereunder and thereunder in favor of the parties hereto
and thereto.
If any such transfer of the Contract Assets is deemed to be
the mere granting of a security interest to secure a borrowing, the Trust
Depositor may, to secure the Trust Depositor's own borrowing under this
Agreement (to the extent that the transfer of the Contract Assets thereunder is
deemed to be a mere granting of a security interest to secure a borrowing)
repledge and reassign (1) all or a portion of the Contract Assets pledged to the
Trust Depositor by the Originator and with respect to which the Trust Depositor
has not released its security interest at the time of such pledge and
assignment, and (2) all proceeds thereof. Such repledge and reassignment may be
made by the Trust Depositor with or without a repledge and reassignment by the
Trust Depositor of its rights under any agreement with the Originator, and
without further notice to or acknowledgment from the Originator. The Originator
waives, to the extent permitted by applicable law, all claims, causes of action
and remedies, whether legal or equitable (including any right of setoff),
against the Trust Depositor or any assignee of the Trust Depositor relating to
such action by the Trust Depositor in connection with the transactions
contemplated by this Agreement.
SECTION 2.02. CONDITIONS TO TRANSFER OF CONTRACT ASSETS TO THE
TRUST DEPOSITOR. On or before the Closing Date, the Originator shall deliver or
cause to be delivered to the Trust Depositor, the Owner Trustee and the
Indenture Trustee each of the documents, certificates and other items as
follows:
(i) A certificate of an officer of the Originator
substantially in the form of Exhibit C to the Transfer and Servicing
Agreement;
(ii) Opinions of counsel for the Originator
substantially in the form of Exhibits D and E to the Transfer and
Servicing Agreement (and including as an addressee thereof each Rating
Agency) which relate to the transfer of the Trust Assets from the Trust
Depositor to the Trust;
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(iii) Copies of resolutions of the Board of Directors
of the Originator or of the Executive Committee of the Board of
Directors of the Originator approving the execution, delivery and
performance of this Agreement and the transactions contemplated
hereunder, certified in each case by the Secretary or an Assistant
Secretary of the Originator;
(iv) Officially certified recent evidence of due
incorporation and good standing of the Originator under the laws of New
York;
(v) The initial List of Contracts, certified by the
Chairman of the Board, President or any Vice President of the
Originator, together with an Assignment substantially in the form of
Exhibit A (along with the delivery of any instruments as required under
Section 2.05 below);
(vi) A letter from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, or another
nationally recognized accounting firm, addressed to the Originator and
the Trust Depositor, stating that such firm has reviewed a sample of
the Initial Contracts and performed specific procedures for such sample
with respect to certain contract terms and which identifies those
Initial Contracts which do not conform;
(vii) Copies of resolutions of the Board of Directors
of the Servicer or of the Executive Committee of the Board of Directors
of the Servicer approving the execution, delivery and performance of
this Agreement and the other Transaction Documents to which the
Servicer is a party, as applicable, and the transactions contemplated
hereunder and thereunder, certified in each case by the Secretary or an
Assistant Secretary of the Servicer;
(viii) Evidence of proper filing with appropriate
offices in the UCC Filing Locations in the State of New Jersey of UCC
financing statements executed by the Originator, as debtor, naming the
Trust Depositor as secured party (and the Owner Trustee as assignee)
and identifying the Contract Assets as collateral;
(ix) An Officer's Certificate listing the Servicer's
Servicing Officers;
(x) Evidence of deposit in the Collection Account of
all funds received with respect to the Initial Contracts after the
Initial Cutoff Date to the date two days preceding the Closing Date,
together with an Officer's Certificate from the Servicer to the effect
that such amount is correct;
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(xi) A fully executed Trust Agreement;
(xii) A fully executed Administration Agreement;
(xiii) An opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ to the
effect that for federal income tax purposes, the Class A Notes, Class B
Notes and Class C Notes will be characterized as debt and the Trust
will not be characterized as an association (or publicly traded
partnership) taxable as a corporation; and
(xiv) An opinion of ▇▇▇▇▇, Danzig, Scherer, ▇▇▇▇▇▇
and ▇▇▇▇▇▇▇▇ to the effect that for New Jersey tax purposes, the Trust
will be classified as a partnership and will not be subject to the New
Jersey Corporation Income Tax or the New Jersey Corporation Business
Tax.
SECTION 2.03. ACCEPTANCE BY THE TRUST DEPOSITOR. On the
Closing Date, if the conditions set forth in Section 2.02 have been satisfied,
the Originator shall deliver, on behalf of the Trust Depositor, to the Trust the
Trust Assets and such delivery to and acceptance by the Trust shall be deemed to
be delivery to and acceptance by the Trust Depositor.
SECTION 2.04. CONVEYANCE OF SUBSTITUTE CONTRACTS.
(a) Subject to Sections 2.01(d) and (e) and the satisfaction
of the conditions set forth in paragraph (c) of this Section 2.04, the
Originator may at its option (but shall not be obligated to) sell, transfer,
assign, set over and otherwise convey to the Trust Depositor (by delivery of an
executed Subsequent Purchase Agreement substantially in the form attached as
Exhibit J to the Transfer and Sale Agreement), without recourse other than as
expressly provided herein and therein (and the Trust Depositor shall be required
to purchase through payment by exchange of one or more related Contracts
released by the Trust to the Trust Depositor on the Subsequent Transfer Date),
all the right, title and interest of the Originator in and to (the property in
clauses (i)-(vi) below, upon such transfer, becoming part of the "Contract
Assets"):
(i) the Substitute Contracts identified in the
related Addition Notice, and all monies received in payment of such
Substitute Contracts on and after the related Subsequent Cutoff Dates,
any Prepayment Amounts, any payments in respect of a casualty or early
termination, and any Recoveries received with respect thereto, but
excluding any Excluded Amounts;
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(ii) the Equipment related to such Contracts,
including the related security interest granted by the Obligor under
such Contracts and all proceeds from any sale or other disposition of
such Equipment (but subject to the exclusion and release herein of
Excluded Amounts);
(iii) the Contract Files;
(iv) all payments made or to be made in the future
with respect to such Contracts or the Obligor thereunder under any
Vendor Assignments with the Originator and under any guarantee or
similar credit enhancement with respect to such Contracts;
(v) all Insurance Proceeds with respect to each
such Contract; and
(vi) all income from and proceeds of the foregoing.
(b) Subject to Sections 2.01(d) and (e) of this Agreement and
the conditions set forth in Section 2.04(c) of this Agreement, the Originator
shall sell, transfer, assign, set over and otherwise convey to the Trust
Depositor, without recourse other than as expressly provided in this Agreement
(i) all the right, title and interest of the Originator in and to the Substitute
Contracts purchased pursuant to Section 2.04(a) of this Agreement and (ii) all
other rights and property interests consisting of Contract Assets related to
such Substitute Contracts (the property in clauses (i)-(ii) above, upon such
transfer, becoming part of the "Trust Assets").
(c) The Originator shall transfer, on behalf of the Trust
Depositor, to the Trust the Substitute Contracts and the other property and
rights related thereto described in paragraphs (a) above, in the case of the
Originator, or (b), in the case of the Trust Depositor, only on the terms and
subject to the conditions set forth in Section 2.04(c) of the Transfer and
Servicing Agreement.
SECTION 2.05. DELIVERY OF INSTRUMENTS. The Originator shall
deliver, on behalf of the Trust Depositor, possession of all "instruments"
(within the meaning of Article 9 of the UCC) not constituting part of "chattel
paper" (within the meaning of such Article 9), which evidence any Contract to
the Owner Trustee on behalf of the Trust Depositor on the Closing Date (or, if
applicable, on the relevant Subsequent Transfer Date), in each case endorsed in
blank without recourse. The Originator shall also identify on the List of
Contracts (including any deemed amendment thereof associated with any Substitute
Contracts), whether by attached schedule or marking or other effective
identifying designation, all Contracts which are or are evidenced by such
instruments.
ARTICLE THREE
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REPRESENTATIONS AND WARRANTIES
The Originator makes, and upon execution of each Subsequent
Purchase Agreement is deemed to make, the following representations and
warranties, on which the Trust Depositor will rely in conveying the Contract
Assets on the Closing Date (and on any Subsequent Transfer Date) to the Trust,
and on which the Trust, the Noteholders and Certificateholder will rely. The
Trust Depositor acknowledges that such representations and warranties are being
made by the Originator for the benefit of the Trust.
Such representations and warranties speak as of the execution
and delivery of this Agreement and as of the Closing Date (or Subsequent
Transfer Date, as applicable), but shall survive the sale, transfer and
assignment of the Contract Assets to the Trust. The repurchase obligation or
substitution obligation of the Originator set forth in Section 6.01 constitutes
the sole remedy available for a breach of a representation or warranty of the
Originator set forth in Sections 3.01, 3.02, 3.03, 3.04 or 3.05 of this
Agreement. Notwithstanding the foregoing, the Originator shall not be deemed to
be remaking any of the representations set forth in Section 3.03 or 3.05 on a
Subsequent Transfer Date with respect to the Substitute Contracts, as such
representations relate solely to the composition of the Initial Contracts
conveyed on the Closing Date, provided, that any inaccurate representation as to
concentrations contained in any Addition Notice shall be subject to the same
remedies hereunder as if such representation were made under Section 3.05 on the
Closing Date with respect to an Initial Contract.
SECTION 3.01. REPRESENTATIONS AND WARRANTIES REGARDING THE
ORIGINATOR. By its execution of this Agreement and each Subsequent Purchase
Agreement, the Originator represents and warrants that:
(a) ORGANIZATION AND GOOD STANDING. The Originator is
a corporation duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization and has the
requisite corporate power to own or lease its assets and to transact
the business in which it is currently engaged. The Originator is duly
qualified to do business as a foreign corporation and is in good
standing in each jurisdiction in which the character of the business
transacted by it or properties owned or leased by it requires such
qualification and in which the failure so to qualify would have a
material adverse effect on the business, properties, assets, or
condition (financial or otherwise) of the Originator. The Originator is
properly licensed in each jurisdiction to the extent required by the
laws of such jurisdiction in order to originate, and (if the Originator
is to be the Servicer) service the Contracts in accordance with the
terms of the Transfer and Servicing Agreement.
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(b) AUTHORIZATION; BINDING OBLIGATION. The Originator
has the power and authority to make, execute, deliver and perform this
Agreement and the other Transaction Documents to which the Originator
is a party and all of the transactions contemplated under this
Agreement and the other Transaction Documents to which the Originator
is a party, and has taken all necessary corporate action to authorize
the execution, delivery and performance of this Agreement and the other
Transaction Documents to which the Originator is a party. This
Agreement and the other Transaction Documents to which the Originator
is a party constitute the legal, valid and binding obligation of the
Originator enforceable in accordance with their terms, except as
enforcement of such terms may be limited by bankruptcy, insolvency or
similar laws affecting the enforcement of creditors' rights generally
and by the availability of equitable remedies.
(c) NO CONSENT REQUIRED. The Originator is not
required to obtain the consent of any other party or any consent,
license, approval or authorization from, or registration or declaration
with, any governmental authority, bureau or agency in connection with
the execution, delivery, performance, validity or enforceability of
this Agreement and the other Transaction Documents to which the
Originator is a party.
(d) NO VIOLATIONS. The Originator's execution,
delivery and performance of this Agreement and the other Transaction
Documents to which the Originator is a party will not violate any
provision of any existing law or regulation or any order or decree of
any court or the Certificate of Incorporation or Bylaws of the
Originator, or constitute (with or without notice or lapse of time or
both) a material breach of any mortgage, indenture, contract or other
agreement to which the Originator is a party or by which the Originator
or any of the Originator's properties may be bound.
(e) LITIGATION. No litigation or administrative
proceeding of or before any court, tribunal or governmental body is
currently pending, or to the knowledge of the Originator threatened,
against the Originator or any of its respective properties or with
respect to this Agreement or any other Transaction Document to which
the Originator is a party which, if adversely determined, would in the
opinion of the Originator have a material adverse effect on the
business, properties, assets or condition (financial or other) of the
Originator or the transactions contemplated by this Agreement or any
other Transaction Document to which the Originator is a party.
(f) TITLE. If a Contract is a lease of Equipment
subject to certificate of title statutory requirements, the title is
held either in the name of the lessee and the certificate of title
indicates the Originator as lienholder or in the name of the Originator
as Lessor.
(g) PLACE OF BUSINESS; NO CHANGES; NO TRADE NAMES.
The Originator's chief executive office (within the meaning of Article
9 of the UCC) is as set forth in Section 8.03 below. The Originator has
not changed its name as
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set forth herein, whether by amendment of its Certificate of
Incorporation, by reorganization or otherwise, within the five years
preceding the Closing Date, and has not changed the location of its
chief executive office, within the four months preceding the Closing
Date (or Subsequent Transfer Date, as applicable, except in accordance
with the requirements of Section 4.03). The legal name of the
Originator is as set forth in this Agreement and, within the five years
preceding the Closing Date, the Originator has not used, and currently
does not use, any trade names, fictitious names, assumed names, or
"doing business as" names.
(h) NO BULK SALES. The execution, delivery and
performance of this Agreement by the Originator does not require
compliance with any "bulk sales" laws by the Originator.
(i) SOLVENCY. The Originator on each date of and,
after giving effect to the transfer of the Contracts and any Substitute
Contracts, as the case may be, to the Trust Depositor, is Solvent.
(j) USE OF PROCEEDS. No proceeds of the sale of any
Initial Contract or Substitute Contract hereunder received by the
Originator will be used by the Originator to purchase or carry any
"margin stock" as such term is defined in Regulation G, T, U or X of
the Board of Governors of the Federal Reserve System.
(k) SELECTION PROCEDURES. No selection procedures
determined by the Originator to be materially adverse to the interests
of the Trust Depositor were utilized by the Originator in selecting the
Contracts to be sold, assigned, transferred, set-over and otherwise
conveyed hereunder.
(l) NOT AN INVESTMENT COMPANY. The Originator is not
an "investment company" within the meaning of the Investment Company
Act of 1940, as amended (or the Originator is exempt from all
provisions of such Act).
(m) TAXES. To the best of the Originator's knowledge,
(i) the Originator has filed all tax returns required to be filed in
the normal course of its business and has paid or made adequate
provisions for the payment of all taxes, assessments and other
governmental charges due from the Originator or is contesting any such
tax, assessment or other governmental charge in good faith through
appropriate proceedings, (ii) no tax lien has been filed with respect
thereto, and (iii) no claim is being asserted with respect to any such
tax, fee or other charge.
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(n) SALE TREATMENT. The Originator has treated the
transfer of Contract Assets to the Trust Depositor for all purposes
(including financial accounting purposes) as a sale and purchase on all
of its relevant books, records, financial statements and other
applicable documents, except to the extent applicable tax laws require
otherwise.
(o) MARKING OF FILES. The Originator will have, at
its own expense, prior to the close of business on the Closing Date,
(i) indicated in its Computer Records that ownership of the Contracts
transferred by it, on behalf of the Trust Depositor, to the Trust and
identified on the List of Contracts have been sold to the Trust
Depositor and (ii) affixed to the original copy of each Contract the
following legend (including any instrument constituting part of chattel
paper):
This Contract/Note is subject to a security interest
granted to The Bank of New York (Delaware), as Owner
Trustee for the ORIX Credit Alliance Receivables
Trust 1999-A. UCC-1 Financing Statements covering
this Contract/Note have been filed with the Secretary
of State of the State of New Jersey. Such lien will
be released only in connection with appropriate
filings in such offices. Consequently, potential
purchasers of this Contract/Note must refer to such
filings to determine whether such lien has been
released.
(p) NO LIENS. The Originator owns each Contract Asset
to be sold by it hereunder free and clear of any Liens except as
provided herein, and upon the sale, transfer or assignment hereunder,
the Trust Depositor shall (i) become the owner of each Contract Asset
then existing or thereafter arising, free and clear of any Lien except
as provided herein or (ii) acquire a first priority perfected security
interest in such Contract Asset. No effective financing statement or
other instrument similar in effect covering any Contract Asset or the
collections with respect thereto shall at any time be on file in any
recording office except such as may be filed in favor of the Trust
Depositor relating to this Agreement or otherwise as provided under the
Transfer and Servicing Agreement.
(q) VALUE GIVEN. The cash payments received by the
Originator in respect of the purchase price of each Contract sold
hereunder constitutes reasonably equivalent value in consideration for
the transfer to the Trust Depositor of such Contract under this
Agreement, such transfer was not made for or on account of an
antecedent debt owed by the Originator to the Trust
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Depositor, and such transfer was not and is not voidable or subject to
avoidance under any Insolvency Law.
(r) SECURITY INTEREST. The Originator has granted a
security interest (as defined in the UCC) to the Trust Depositor in the
Contract Assets, which is enforceable in accordance with applicable law
upon execution and delivery of this Agreement. Upon the filing of UCC-1
financing statements naming the Trust Depositor as secured party and
the Originator as debtor, the Trust Depositor shall have a first
priority perfected security interest in the Contract Assets (except for
any Permitted Liens). All filings (including, without limitation, such
UCC filings) as are necessary in any jurisdiction to perfect the
interest of the Trust Depositor in the Contract Assets have been made.
(s) YEAR 2000 STATUS. (i) Any reprogramming required
to permit the proper functioning during and following the year 2000 of
the Servicer's computer systems will have been completed prior to
January 1, 2000 and (ii) the information set forth in the Prospectus
under "ORIX Credit Alliance, Inc. Assessment of Year 2000 Readiness
Disclosure" is accurate in all material respects.
SECTION 3.02. REPRESENTATIONS AND WARRANTIES REGARDING EACH
CONTRACT AND AS TO CERTAIN CONTRACTS IN THE AGGREGATE. The Originator represents
and warrants (x) with respect to subsections (a)-(c) below, as to each Contract
as of the execution and delivery of this Agreement and as of the Closing Date,
and as of each Subsequent Transfer Date with respect to each Substitute
Contract, and (y) with respect to subsections (d)-(f) below, as to the Contracts
Pool in the aggregate as of the Closing Date, and as of each Subsequent Transfer
Date with respect to Substitute Contracts (after giving effect to the addition
of such Substitute Contracts to the Contracts Pool), that:
(a) LIST OF CONTRACTS. The information set forth in
the List of Contracts (as the same may be amended or deemed amended in
respect of a conveyance of Substitute Contracts on a Subsequent
Transfer Date) is true, complete and correct as of the applicable
Cutoff Date.
(b) ELIGIBLE CONTRACT. Such Contract satisfies the
criteria for the definition of Eligible Contract set forth in the
Transfer and Sale Agreement as of the date of its conveyance hereunder.
(c) NO "TRUE LEASES". No Contract constituting a
Lease is a "true lease" as distinguished from a financing lease.
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(d) NO FRAUD. Each Contract was originated without
any fraud or material misrepresentation by the Originator or, to the
best of the Originator's knowledge, on the part of the Obligor or the
Vendor.
(e) CONTRACTS SECURED BY FIXTURES. No material
portion of the Pool Balance of the Contracts Pool consists of Contracts
secured by Equipment constituting fixtures.
(f) CONTRACTS SECURED BY OTHER REAL PROPERTY. No
material portion of the Pool Balance of the Contracts Pool consists of
Contracts additionally secured by other real property (exclusive of or
in addition to Equipment constituting fixtures).
SECTION 3.03. REPRESENTATIONS AND WARRANTIES REGARDING THE
INITIAL CONTRACTS IN THE AGGREGATE. The Originator represents and warrants, as
of the Closing Date, that its representations and warranties in Section 3.03 of
the Transfer and Sale Agreement are correct.
SECTION 3.04. REPRESENTATIONS AND WARRANTIES REGARDING THE
CONTRACT FILES. The Originator represents and warrants as of the Closing Date
with respect to the Initial Contracts (or as of the Subsequent Transfer Date,
with respect to Substitute Contracts), that its representations and warranties
in Section 3.04 of the Transfer and Sale Agreement are correct.
SECTION 3.05. REPRESENTATIONS AND WARRANTIES REGARDING
CONCENTRATIONS OF INITIAL CONTRACTS. The Originator represents and warrants as
of the Closing Date, as to the composition of the Initial Contracts in the
Contracts Pool as of the Initial Cutoff Date, that its representations and
warranties in Section 3.05 of the Transfer and Sale Agreement are correct.
SECTION 3.06. REPRESENTATIONS AND WARRANTIES REGARDING THE
TRUST DEPOSITOR. By its execution of this Agreement and each Subsequent Purchase
Agreement, the Trust Depositor represents and warrants to the Originator that:
(a) ORGANIZATION AND GOOD STANDING. The Trust
Depositor is a corporation duly organized, validly existing and in good
standing under the laws of Delaware and has the corporate power to own
its assets and to transact the business in which it is currently
engaged. The Trust Depositor is duly qualified to do business as a
foreign corporation and is in good standing in each jurisdiction in
which the character of the business transacted by it or properties
owned or leased by it requires such qualification and in which the
failure so to qualify would have
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a material adverse effect on the business, properties, assets, or
condition (financial or other) of the Trust Depositor or the Trust.
(b) AUTHORIZATION; VALID SALE; BINDING OBLIGATIONS.
The Trust Depositor has the power and authority to make, execute,
deliver and perform this Agreement and the other Transaction Documents
to which it is a party and all of the transactions contemplated under
this Agreement and the other Transaction Documents to which it is a
party, and to create the Trust and cause it to make, execute, deliver
and perform its obligations under this Agreement and the other
Transaction Documents to which it is a party and has taken all
necessary corporate action to authorize the execution, delivery and
performance of this Agreement and the other Transaction Documents to
which it is a party and to cause the Trust to be created. The Transfer
and Servicing Agreement and the related Subsequent Transfer Agreement,
if any, shall effect a valid sale, transfer and assignment of the Trust
Assets, enforceable against the Trust Depositor and creditors of and
purchasers from the Trust Depositor. This Agreement and the other
Transaction Documents to which the Trust Depositor is a party
constitute the legal, valid and binding obligation of the Trust
Depositor enforceable in accordance with their terms, except as
enforcement of such terms may be limited by bankruptcy, insolvency or
similar laws affecting the enforcement of creditors' rights generally
and by the availability of equitable remedies.
(c) NO CONSENT REQUIRED. The Trust Depositor is not
required to obtain the consent of any other party or any consent,
license, approval or authorization from, or registration or declaration
with, any Governmental Authority in connection with the execution,
delivery, performance, validity or enforceability of this Agreement or
the other Transaction Documents to which it is a party.
(d) NO VIOLATIONS. The execution, delivery and
performance of this Agreement and the other Transaction Documents to
which it is a party by the Trust Depositor, and the consummation of the
transactions contemplated hereby and thereby, will not violate any
Requirement of Law applicable to the Trust Depositor, or constitute a
material breach of any mortgage, indenture, contract or other agreement
to which the Trust Depositor is a party or by which the Trust Depositor
or any of the Trust Depositor's properties may be bound, or result in
the creation or imposition of any security interest, lien, charge,
pledge, preference, equity or encumbrance of any kind upon any of its
properties pursuant to the terms of any such mortgage, indenture,
contract or other agreement, other than as contemplated by the
Transaction Documents.
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(e) LITIGATION. No litigation or administrative
proceeding of or before any court, tribunal or governmental body is
currently pending, or to the knowledge of the Trust Depositor
threatened, against the Trust Depositor or any of its properties or
with respect to this Agreement, the other Transaction Documents to
which it is a party or the Securities (1) which, if adversely
determined, would in the reasonable judgment of the Trust Depositor
have a material adverse effect on the business, properties, assets or
condition (financial or otherwise) of the Trust Depositor or the Trust
or the transactions contemplated by this Agreement or the other
Transaction Documents to which the Trust Depositor is a party or (2)
seeking to adversely affect the federal income tax or other federal,
state or local tax attributes of the Certificate or Notes.
(f) BULK SALES. The execution, delivery and
performance of this Agreement do not require compliance with any "bulk
sales" laws by the Trust Depositor.
(g) SOLVENCY. The Trust Depositor, at the time of and
after giving effect to each conveyance of Trust Assets under the
Transfer and Servicing Agreement, is Solvent on and as of the date
thereof.
(h) TAXES. The Trust Depositor has filed or caused to
be filed all tax returns which, to its knowledge, are required to be
filed and has put all taxes shown to be due and payable on such returns
or on any assessments made against it or any of its property and all
other taxes, fees or other charges imposed on it or any of its property
by any Governmental Authority (other than any amount of tax due, the
validity of which is currently being contested in good faith by
appropriate proceedings and with respect to which reserves in
accordance with generally accepted accounting principles have been
provided on the books of the Trust Depositor); no tax lien has been
filed and, to the Trust Depositor's knowledge, no claim is being
asserted, with respect to any such tax, fee or other charge.
(i) PLACE OF BUSINESS; NO CHANGES. The Trust
Depositor's sole place of business (within the meaning of Article 9 of
the UCC) is as set forth in Section 8.03 below. The Trust Depositor has
not changed its name, whether by amendment of its Certificate of
Incorporation, by reorganization or otherwise, and has not changed the
location of its place of business, within the four months preceding the
Closing Date.
(j) NOT AN INVESTMENT COMPANY. The Trust Depositor is
not an "investment company" within the meaning of the Investment
Company Act of
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1940, as amended (or the Trust Depositor is exempt from all provisions
of such Act).
(k) SALE TREATMENT. The Trust Depositor has treated
the transfer of Contract Assets to the Trust Depositor for all purposes
(including financial accounting purposes) as a sale and purchase on all
of its relevant books, records, financial statements and other
applicable documents, except to the extent applicable tax laws require
otherwise.
Such representations speak as of the execution and delivery of this Agreement
and as of the Closing Date in the case of the Initial Contracts, and as of the
applicable Subsequent Transfer Date in the case of the Substitute Contracts, but
shall survive the sale, transfer and assignment of the Contracts to the Trust.
ARTICLE FOUR
PERFECTION OF TRANSFER AND
PROTECTION OF SECURITY INTERESTS
SECTION 4.01. CUSTODY OF CONTRACTS. The contents of each
Contract File shall be held in the custody of the Custodian under the Custodian
Agreement for the benefit of, and as agent for, the Indenture Trustee.
SECTION 4.02. FILING. On or prior to the Closing Date, the
Originator shall cause the UCC financing statement(s) referred to in Section
2.02(viii) hereof to be filed.
SECTION 4.03. NAME CHANGE OR RELOCATION. (a) During the term
of this Agreement, the Originator shall not change its name, identity or
structure or relocate its chief executive office without first giving at least
30 days' prior written notice to the Trust.
(b) If any change in the Originator's name, identity or
structure or other action would make any financing or continuation statement or
notice of ownership interest or lien relating to any Contract Asset seriously
misleading within the meaning of applicable provisions of the UCC or any title
statute, the Originator, no later than five days after the effective date of
such change, shall file such amendments as may be required to preserve and
protect the Trust Depositor's and the Trust's interests in the Trust Assets and
the proceeds thereof. In addition, the Originator shall not change the place of
its chief executive office (within the meaning of Article 9 of the UCC) unless
it has first taken such action as is advisable or necessary to preserve and
protect the Trust Depositor's and the Trust's interest in the Trust Assets.
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SECTION 4.04. CHIEF EXECUTIVE OFFICE. During the term of this
Agreement, and subject to the other terms and provisions herein relating to
changes in location, the Originator will maintain its chief executive office in
one of the States of the United States.
SECTION 4.05. COSTS AND EXPENSES. The Originator hereby
confirms that the Servicer will pay all reasonable costs and disbursements in
connection with the perfection and the maintenance of perfection, as against all
third parties, of the Trustees' and Trust's right, title and interest in and to
the Contract Assets (including, without limitation, the security interest in the
Equipment related thereto and the security interests provided for in the
Indenture).
SECTION 4.06. SALE TREATMENT. The Originator shall treat the
transfer of Trust Assets made hereunder for all purposes (including financial
accounting purposes) as a sale and purchase on all of its relevant books,
records, financial statements and other applicable documents. Notwithstanding
the preceding sentence, for federal income tax purposes the transfer of Trust
Assets by the Originator hereunder shall not be treated as a sale and purchase
for federal income tax purposes so long as the Trust is disregarded as a
separate entity pursuant to Treasury Regulations Section 301.7701-3(b)(1)(ii).
SECTION 4.07. SEPARATENESS FROM TRUST DEPOSITOR. The
Originator agrees to take or refrain from taking or engaging in with respect to
the Trust Depositor, as applicable, each of the actions or activities specified
in the "substantive consolidation" opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ (including any
certificates of the Originator attached thereto) delivered on the Closing Date,
upon which the conclusions therein are based.
ARTICLE FIVE
COVENANTS OF THE ORIGINATOR
SECTION 5.01. CORPORATE EXISTENCE. During the term of this
Agreement, the Originator will keep in full force and effect its existence,
rights and franchises as a corporation under the laws of the jurisdiction of its
incorporation and will obtain and preserve its qualification to do business in
each jurisdiction in which such qualification is or shall be necessary to
protect the validity and enforceability of this Agreement, the other Transaction
Documents and each other instrument or agreement necessary or appropriate to the
proper administration of this Agreement and the transactions contemplated
hereby. In addition, all transactions and dealings between the Originator and
its Affiliates will be conducted on an arm's-length basis.
SECTION 5.02. CONTRACTS NOT TO BE EVIDENCED BY PROMISSORY
NOTES. The Originator will take no action to cause any Contract not originally
evidenced by an
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instrument as described in Section 2.05 hereof, to be evidenced by an instrument
(as defined in the UCC), except in connection with the enforcement or collection
of such Contract.
SECTION 5.03. SECURITY INTERESTS. The Originator will not
sell, pledge, assign or transfer to any other Person, or grant, create, incur,
assume or suffer to exist any Lien on any Contract in the Contracts Pool or
related Equipment, whether now existing or hereafter transferred to the Trust
Depositor, or any interest therein. The Originator will immediately notify the
Trust Depositor of the existence of any Lien on any Contract in the Contracts
Pool or related Equipment; and the Originator shall defend the right, title and
interest of the Trust Depositor in, to and under the Contracts in the Contracts
Pool and the related Equipment, against all claims of third parties; provided,
however, that nothing in this Section 5.03 shall prevent or be deemed to
prohibit the Originator from suffering to exist Permitted Liens upon any of the
Contracts in the Contracts Pool or any related Equipment.
SECTION 5.04. COMPLIANCE WITH LAW. The Originator hereby
agrees to comply in all material respects with all Requirements of Law
applicable to the Originator.
SECTION 5.05. LIABILITY OF ORIGINATOR; INDEMNITIES. The
Originator shall be liable in accordance herewith only to the extent of the
obligations specifically undertaken by the Originator under this Agreement.
The Originator shall indemnify, defend and hold harmless the
Trust Depositor from and against any taxes that may at any time be asserted
against any such Person with respect to the transactions contemplated herein and
in the other Transaction Documents, including any sales, gross receipts, general
corporation, tangible personal property, New Jersey personal property
replacement privilege or license taxes (but, in the case of the Trust Depositor,
not including any taxes asserted with respect to, and as of the date of, the
sale of the Contracts to the Trust or the issuance and original sale of the
Securities, or asserted with respect to ownership of the Contracts, or federal
or other income taxes arising out of distributions on the Certificate or the
Notes) and costs and expenses in defending against the same.
The Originator shall indemnify, defend and hold harmless the
Trust Depositor from and against any loss, liability or expense incurred by
reason of the Originator's willful misfeasance, bad faith or gross negligence
(other than errors in judgment) in the performance of its duties under this
Agreement, or by reason of reckless disregard of its obligations and duties
under this Agreement.
Indemnification under this Section shall include, without
limitation, reasonable fees and expenses of counsel and expenses of litigation.
If the Originator shall
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have made any indemnity payments pursuant to this Section and the Person to or
on behalf of whom such payments are made thereafter shall collect any of such
amounts from others, such Person shall promptly repay such amounts to the
Originator, without interest.
SECTION 5.06. LIMITATION ON LIABILITY OF ORIGINATOR AND
OTHERS. The Originator and any director or officer or employee or agent of the
Originator may rely in good faith on any document of any kind, prima facie
properly executed and submitted by any Person respecting any matters arising
hereunder. The Originator and any director or officer or employee or agent of
the Originator shall be reimbursed by the Trust Depositor for any liability or
expense incurred by reason of the Trust Depositor's willful misfeasance, bad
faith or negligence (except errors in judgment) in the performance of their
respective duties hereunder, or by reason of reckless disregard of their
respective obligations and duties hereunder. The Originator shall not be under
any obligation to appear in, prosecute or defend any legal action that shall not
be incidental to its obligations under this Agreement, and that in its opinion
may involve it in any expense or liability.
SECTION 5.07. CHIEF EXECUTIVE OFFICE. During the term of this
Agreement, the Originator will maintain its chief executive office in one of the
States of the United States.
ARTICLE SIX
REMEDIES UPON MISREPRESENTATION; REPURCHASE OPTION
SECTION 6.01. REPURCHASES OF, OR SUBSTITUTION FOR, CONTRACTS
FOR BREACH OF REPRESENTATIONS AND WARRANTIES. Upon a discovery by the Servicer,
the Trust Depositor or the Trustees of a breach of a representation or warranty
of the Originator as set forth in Section 3.01, Section 3.02, Section 3.03,
Section 3.04, and Section 3.05 or as made or deemed made in any Addition Notice
or any Subsequent Purchase Agreement relating to Substitute Contracts that
materially adversely affects the Trust's interest in such Contract (without
regard to the benefits of the Reserve Fund) (an "Ineligible Contract"), or of an
inaccuracy with respect to the representations as to concentrations of the
Initial Contracts made under Section 3.05, the party discovering the breach
shall give prompt written notice to the other parties (and the Servicer shall,
pursuant to Section 11.01 of the Transfer and Servicing Agreement, with respect
to an inaccuracy concerning concentrations, select one or more Contracts,
without employing adverse selection, to be the related Excess Contract for
purposes of this Section), provided, that the Trustees shall have no duty or
obligation to inquire or to investigate the breach by the Originator of any of
such representations or warranties. The Originator shall repurchase each such
Ineligible Contract or Excess Contract, at a repurchase price equal to the
Transfer Deposit Amount, not later than the next succeeding Determination Date
following the date the Originator becomes aware of, or receives written notice
from any Trustee, the Servicer or
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the Trust Depositor of, any such breach or inaccuracy and which breach or
inaccuracy has not otherwise been cured; provided, however, that if the
Originator is able to effect a substitution for any such Ineligible Contract or
Excess Contract in compliance with Section 2.04, the Originator may, in lieu of
repurchasing such Contract, effect a substitution for such affected Contract
with a Substitute Contract not later than the date a repurchase of such affected
Contract would be required hereunder, and provided further that with respect to
a breach of representation or warranty relating to the Contracts in the
aggregate and not to any particular Contract the Originator may select Contracts
(without adverse selection) to repurchase (or substitute for) such that had such
Contracts not been included as part of the Trust Assets (and, in the case of a
substitution, had such Substitute Contract been included as part of the Trust
Assets instead of the selected Contract) there would have been no breach of such
representation or warranty. Notwithstanding any other provision of this
Agreement, the obligation of the Originator described in this Section 6.01 shall
not (a) terminate or be deemed released by any party hereto upon a Servicer
Transfer pursuant to Article VIII of the Transfer and Servicing Agreement or (b)
include any obligation to make payment on account of a breach of a Contract by
an Obligor subsequent to the date on which such Contract was transferred to the
Trust. The repurchase obligation described in this Section 6.01 is in no way to
be satisfied with monies in the Reserve Fund.
SECTION 6.02. REASSIGNMENT OF REPURCHASED OR SUBSTITUTED
CONTRACTS. Upon receipt by the Indenture Trustee for deposit in the Collection
Account of the amounts described in Section 6.01 or Section 6.03 (or upon the
Subsequent Transfer Date related to a Substitute Contract described in Section
6.01), and upon receipt of a certificate of a Servicing Officer in the form
attached as Exhibit F to the Transfer and Sale Agreement, the Indenture Trustee
is required under the Transfer and Servicing Agreement to assign to the Trust
Depositor and the Trust Depositor shall assign to the Originator all of the
Trust's (or Trust Depositor's, as applicable) right, title and interest in the
repurchased or substituted Contract and related Trust Assets without recourse,
representation or warranty. Such reassigned Contract shall no longer thereafter
be included in any calculations of Principal Balances required to be made
hereunder or otherwise be deemed a part of the Trust.
SECTION 6.03. ORIGINATOR'S REPURCHASE OPTION. On written
notice to the Owner Trustee and the Indenture Trustee at least 20 days prior to
a Distribution Date, and provided that the Pool Balance of all Contracts in the
Contracts Pool is then less than 10% of the Pool Balance of such Contracts as of
the Initial Cutoff Date, the Originator, through the Trust Depositor, may (but
is not required to) repurchase from the Trust Depositor (and the Trust Depositor
concurrently from the Trust) on that Distribution Date all outstanding Contracts
at a price equal to the aggregate outstanding Principal Amount of the Securities
(other than the Certificates) and accrued and unpaid interest thereon as of the
current Distribution Date thereon, the amount of outstanding Servicer Advances
(to the extent not effectively waived and released by the Servicer) as well as
accrued and unpaid monthly Servicing Fees and any unpaid fees, expenses or other
payments owed to
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the Indenture Trustee under the Indenture to the date of such repurchase. Such
price is to be deposited in the Collection Account not later than one Business
Day before such Distribution Date, against the Owner Trustee's and Indenture
Trustee's and Trust Depositor's release of the Contracts and the Contract Files
to the Originator.
ARTICLE SEVEN
ORIGINATOR INDEMNITIES
SECTION 7.01. ORIGINATOR'S INDEMNIFICATION. The Originator
will defend and indemnify the Trust Depositor, the Trust, the Trustees, any
agents of the Trustees and the Certificateholder and Noteholders (any of which,
an "Indemnified Party") against any and all costs, expenses, losses, damages,
claims and liabilities, joint or several, including reasonable fees and expenses
of counsel and expenses of litigation (collectively, "Costs") arising out of or
resulting from (i) this Agreement or the use, ownership or operation of any
Equipment by the Originator or the Servicer or any Affiliate of either, (ii) any
representation or warranty or covenant made by the Originator in this Agreement
being untrue or incorrect (subject to the limitations described in the preamble
to Article III of this Agreement), and (iii) any untrue statement or alleged
untrue statement of a material fact contained in the Prospectus or in any
amendment thereto or the omission or alleged omission to state therein a
material fact necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading, in each case to the
extent, but only to the extent, that such untrue statement was made in
conformity with information furnished to Trust Depositor by the Originator
specifically for use therein; provided, however, that the Originator shall not
be required to so indemnify any such Indemnified Party for such Costs to the
extent that such Cost shall be due to or arise from the willful misfeasance, bad
faith or negligence of such Indemnified Party, or the failure of such
Indemnified Party to comply with any express undertaking, agreement or covenant
made by such Indemnified Party in a Transaction Document to which it is a party
or the breach subsequent to the Closing Date by an Obligor under a Contract.
Notwithstanding any other provision of this Agreement, the obligation of the
Originator under this Section 7.01 shall not terminate upon a Servicer Transfer
pursuant to Article VIII of the Transfer and Servicing Agreement and shall
survive any termination of that agreement or this Agreement.
SECTION 7.02. LIABILITIES TO OBLIGORS. No obligation or
liability to any Obligor under any of the Contracts is intended to be assumed by
the Trustees, the Trust, the Noteholders or the Certificateholder under or as a
result of this Agreement and the transactions contemplated hereby.
SECTION 7.03. TAX INDEMNIFICATION.
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(a) The Originator agrees to pay, and to indemnify,
defend and hold harmless the Trust Depositor, the Trust, the Trustees,
the Noteholders or the Certificateholder from, any taxes which may at
any time be asserted with respect to, and as of the date of, the
transfer of the Contracts to the Trust Depositor and the transfer by
the Trust Depositor of the Contracts to the Trust and the further
pledge by the Trust to the Indenture Trustee, including, without
limitation, any sales, gross receipts, general corporation, personal
property, privilege or license taxes (but not including any federal,
state or other taxes arising out of the creation of the Trust and the
issuance of the Notes and Certificates) and costs, expenses and
reasonable counsel fees in defending against the same, whether arising
by reason of the acts to be performed by the Originator or the Servicer
under this Agreement or imposed against the Trust, a Noteholder, a
Certificateholder or otherwise. Notwithstanding any other provision of
this Agreement, the obligation of the Originator under this Section
7.03 shall not terminate upon a Servicer Transfer pursuant to Article
VIII of the Transfer and Servicing Agreement and shall survive any
termination of this Agreement.
(b) The Originator agrees to pay and to indemnify,
defend and hold harmless the Trust and the Trustees, on an after-tax
basis (as hereinafter defined), from any state or local personal
property taxes, gross rent taxes, leasehold taxes or similar taxes
which may at any time be asserted with respect to the ownership of the
Contracts (including security interests therein) and the receipt of
rentals therefrom by the Trust, and costs, expenses and reasonable
counsel fees in defending against the same, excluding, however, taxes
based upon or measured by gross or net income or receipts (other than
taxes imposed specifically with respect to rentals). As used in this
Section, the term "after-tax basis" shall mean, with respect to any
payment to be received by an indemnified person, that the amount to be
paid by the Originator shall be equal to the sum of (i) the amount to
be received without regard to this sentence, plus (ii) any additional
amount that may be required so that after reduction by all taxes
imposed under any federal, state and local law, and taking into account
any current credits or deductions arising therefrom, resulting either
from the receipt of the payments described in both clauses (i) and (ii)
hereof, such sum shall be equal to the amount described in clause (i)
above.
SECTION 7.04. ADJUSTMENTS. The Originator agrees that, with
respect to each Contract (i) which provides for a Prepayment Amount less than
the amount calculated in accordance with the definition thereof and (ii) as to
which the related Vendor has not agreed to indemnify the Trust Depositor or any
assignee of the Trust Depositor in an amount at least equal to the excess of the
"Prepayment Amount" as calculated in accordance with the definition thereof over
the amount otherwise payable upon prepayment of
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such Contract, the Originator shall indemnify the Trust Depositor or the Trust
as assignee thereof, in an amount equal to the amount specified in the foregoing
clause (ii).
The Originator hereby further agrees that if any real property
collateral securing any Contract described in Section 3.02(e) hereof becomes the
subject of any claims, proceedings, liens or encumbrances with respect to any
material violation or claimed material violation of any federal or state
environmental laws or regulations, such Contract shall for all purposes
hereunder be, at and following the time of discovery by the Originator, the
Trust Depositor, the Servicer or any Trustee of such fact, deemed an Ineligible
Contract subject to the same remedial and recourse provisions hereunder as other
Contracts determined to be Ineligible Contracts hereunder.
SECTION 7.05. OPERATION OF INDEMNITIES. Indemnification under
this Article VII shall include, without limitation, reasonable fees and expenses
of counsel and expenses of litigation. If the Originator has made any indemnity
payments to the Trust Depositor or the Trustees pursuant to this Article VII and
the Trust Depositor or the Trustees thereafter collects any of such amounts from
others, the Trust Depositor or the Trustees will repay such amounts collected to
the Originator, except that any payments received by the Trust Depositor or the
Trustees from an insurance provider as a result of the events under which the
Originator's indemnity payments arose shall be repaid prior to any repayment of
the Originator's indemnity payment.
ARTICLE EIGHT
MISCELLANEOUS
SECTION 8.01. AMENDMENT.
(a) This Agreement may be amended by the Originator and the
Trust Depositor, without the consent of any Securityholders, to cure any
ambiguity, to correct or supplement any provisions in this Agreement which are
inconsistent with the provisions herein, or to add any other provisions with
respect to matters or questions arising under this Agreement that shall not be
inconsistent with the provisions of this Agreement, provided, however that any
such action shall not, as evidenced by an Opinion of Counsel, adversely affect
in any material respect the interests of any Securityholder.
(b) This Agreement may also be amended from time to time by
the Originator and the Trust Depositor, with the consent of the Servicer, the
Indenture Trustee and the Owner Trustee on behalf of the Trust, and the consent
of 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 the holders of the Notes or the
Certificateholder; provided, however, that no such
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amendment shall (i) increase or reduce in any manner the amount of, or
accelerate or delay the timing of or change the method of calculating
Collections of payments on the Contracts (including by way of amendment of
related definitions), or (ii) change in any manner (including through amendment
of related definitions), the Holders which are required to consent to any such
amendment, without the consent of the Holders of all Notes and Certificates of
the relevant affected Class then outstanding.
(c) Prior to the execution of any such amendment or consent,
the Originator shall cause the Indenture Trustee to furnish written notification
of the substance of such amendment or consent, together with a copy thereof, to
each Rating Agency.
(d) Promptly after the execution of any such amendment or
consent, the Originator shall cause the Owner Trustee and the Indenture Trustee,
as the case may be, to furnish written notification of the substance of such
amendment or consent to each Certificateholder and Noteholder, respectively. It
shall not be necessary for the consent of Noteholders and Certificateholder
pursuant to Section 8.01(b) to approve the particular form of any proposed
amendment or consent, but it shall be sufficient if such consent shall approve
the substance thereof. The manner of obtaining such consents and of evidencing
the authorization by Noteholders and Certificateholder of the execution thereof
shall be subject to such reasonable requirements as the Owner Trustee or the
Indenture Trustee may prescribe.
(e) Prior to the execution of any amendment to this Agreement,
the Owner Trustee and the Indenture Trustee shall be entitled to receive and
rely upon an Opinion of Counsel stating that the execution of such amendment is
authorized or permitted by this Agreement. Such Trustee may, but shall not be
obligated to, consent to any such amendment which affects such Trustee's own
rights, duties or immunities under this Agreement or otherwise.
SECTION 8.02. GOVERNING LAW. (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 under the Agreement 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
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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
8.02(b).
SECTION 8.03. 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 Originator:
ORIX Credit Alliance, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Chief Financial Officer - Asset
Securitizations
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
(ii) If to the Trust Depositor:
ORIX Credit Alliance Receivables II
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: President
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
(iii) If to the Indenture Trustee:
▇▇▇▇▇▇ Trust and Savings Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Indenture Trust Administration
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
(iv) If to the Owner Trustee:
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The Bank of New York (Delaware)
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
(v) If to Moody's:
▇▇▇▇▇'▇ Investors Service, Inc.
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ABS Monitoring Department
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
(vi) If to S&P:
Standard & Poors Ratings Service
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Surveillance: Asset Backed
Services
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
(vii) If to Fitch:
Fitch IBCA, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Asset Backed Securities Group
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
(viii) If to the Underwriter:
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First Union Securities, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇-▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Asset Securitization Division
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
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 8.04. SEVERABILITY OF PROVISIONS. If one or more of
the covenants, agreements, provisions or terms of this Agreement shall be for
any reason whatsoever held invalid, then such covenants, agreements, provisions
or terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Notes or
Certificates or the rights of the Holders thereof.
SECTION 8.05. THIRD PARTY BENEFICIARIES. Except as otherwise
specifically provided herein, the parties hereto hereby manifest their intent
that no third party, other than each Trustee, shall be deemed a third party
beneficiary of this Agreement, and specifically that the Obligors are not third
party beneficiaries of this Agreement.
SECTION 8.06. 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 together constitute but one and the same
instrument.
SECTION 8.07. HEADINGS. The headings of the various Articles
and Sections herein are for convenience of reference only and shall not define
or limit any of the terms or provisions hereof.
SECTION 8.08. NO BANKRUPTCY PETITION; DISCLAIMER. (a) Each of
the Originator and the Trust Depositor 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 Securities, it will not institute against the
Trust Depositor (in the case of the Originator), 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. This Section 8.08 will survive the termination of this Agreement.
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(b) The provisions of this Section 8.08 shall be for the third
party benefit of those entitled to rely thereon, including the Holders of the
Notes, and shall survive the termination of this Agreement.
SECTION 8.09. JURISDICTION. Any legal action or proceeding
with respect to this Agreement may be brought in the courts of the United States
for the Southern District of New York, and by execution and delivery of this
Agreement, each party hereto consents, for itself and in respect of its
property, to the non-exclusive jurisdiction of those courts. Each such party
irrevocably waives any objection, including any objection to the laying of venue
or based on the grounds of forum non conveniens, which it may now or hereafter
have to the bringing of any action or proceeding in such jurisdiction in respect
of this Agreement or any document related hereto.
SECTION 8.10. PROHIBITED TRANSACTIONS WITH RESPECT TO THE
TRUST. The Originator shall not:
(a) Provide credit to any Noteholder or Certificateholder for
the purpose of enabling such Noteholder or Certificateholder to
purchase Notes or Certificates, respectively;
(b) Purchase any Notes or Certificates in an agency or trustee
capacity; or
(c) Except in its capacity as Servicer as provided in the
Transfer and Sale Agreement, lend any money to the Trust.
SECTION 8.11. MERGER OR CONSOLIDATION OF ORIGINATOR. (a) The
Originator will keep in full force and effect its existence, rights and
franchise as a New York corporation, and the Originator will obtain and preserve
its qualification to do business as a foreign corporation in each jurisdiction
in which such qualification is or shall be necessary to protect the validity and
enforceability of this Agreement and of any of the Contracts and to perform its
duties under this Agreement.
(b) Any person into which the Originator may be merged or
consolidated, or any corporation resulting from such merger or consolidation to
which the Originator is a party, or any person succeeding by acquisition or
transfer to substantially all of the assets and to the business of the
Originator shall be the successor to the Originator hereunder, without execution
or filing of any paper or any further act on the part of any of the parties
hereto, notwithstanding anything herein to the contrary.
(c) Upon the merger or consolidation of the Originator or
transfer of substantially all of its assets and its business as described in
this Section 8.11, the
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Originator shall provide the Rating Agencies notice of such merger or
consolidation within thirty (30) days after completion of the same.
SECTION 8.12. ASSIGNMENT OR DELEGATION BY THE ORIGINATOR.
Except as specifically authorized hereunder, the Originator may not convey and
assign or delegate any of its rights or obligations hereunder absent the prior
written consent of the Trust Depositor and the Trustees, and any attempt to do
so without such consent shall be void.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective officers as of the day and
year first above written.
ORIX CREDIT ALLIANCE, INC., as Originator
By:
Printed Name: ________________________
Title: ______________________________
ORIX CREDIT ALLIANCE RECEIVABLES
CORPORATION II, as Trust Depositor
By:
Printed Name: ________________________
Title: ______________________________
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EXHIBIT A
FORM OF ASSIGNMENT
In accordance with the ORIX Transfer Agreement (the "ORIX
Transfer Agreement") dated as of November , 1999 made by and between the
undersigned, ORIX Credit Alliance, Inc., as Originator, and the ORIX Credit
Alliance Receivables Receivables II (the "Trust Depositor"), as assignee
thereunder, the undersigned does hereby sell, transfer, convey and assign, set
over and otherwise convey to the Trust, on behalf of the Trust Depositor, (i)
all the right, title and interest of the Originator in and to the Initial
Contracts listed on the initial List of Contracts delivered on the Closing Date
(including, without limitation, all rights to receive Collections with respect
thereto on or after the Initial Cutoff Date, but excluding any rights to receive
payments which were collected pursuant thereto prior to the Initial Cutoff
Date), and (ii) all other Contract Assets relating to the foregoing.
Capitalized terms used herein have the meaning given such
terms in the ORIX Transfer Agreement.
This Assignment is made pursuant to and in reliance upon the
representation and warranties on the part of the undersigned contained in
Article III of the ORIX Transfer Agreement and no others.
IN WITNESS WHEREOF, the undersigned has caused this Assignment
to be duly executed this day of November, 1999.
ORIX CREDIT ALLIANCE, INC.
By: __________________________________
Printed Name: ____________________
Title:____________________________
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